Proposed Rule2022-07659
Atlantic Highly Migratory Species; Shortfin Mako Shark Retention Limit
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 11, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is proposing to implement a flexible shortfin mako shark retention limit with a default limit of zero in commercial and recreational Atlantic highly migratory species (HMS) fisheries. NMFS proposes to leave the default limit of zero in place unless and until changed. Changes to the retention limit could only be made based on regulatory criteria and only if consistent with an allowable retention determination made by the International Commission for the Conservation of Atlantic Tunas (ICCAT) pursuant to Recommendation 21-09. This action is necessary to implement the binding recommendation of ICCAT adopted in 2021, as authorized under the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson- Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 69 (Monday, April 11, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Proposed Rules]
[Pages 21077-21082]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07659]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 220405-0084]
RIN 0648-BL17
Atlantic Highly Migratory Species; Shortfin Mako Shark Retention
Limit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS is proposing to implement a flexible shortfin mako shark
retention limit with a default limit of zero in commercial and
recreational Atlantic highly migratory species (HMS) fisheries. NMFS
proposes to leave the default limit of zero in place unless and until
changed. Changes to the retention limit could only be made based on
regulatory criteria and only if consistent with an allowable retention
determination made by the International Commission for the Conservation
of Atlantic Tunas (ICCAT) pursuant to Recommendation 21-09. This action
is necessary to implement the binding recommendation of ICCAT adopted
in 2021, as authorized under the Atlantic Tunas Convention Act (ATCA),
and to achieve domestic management objectives under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
DATES: Written comments must be received by May 11, 2022. NMFS will
hold a public hearing via conference call and webinar for this proposed
rule on April 27, 2022, from 2 p.m. to 5 p.m. EDT. For webinar
registration information, see the SUPPLEMENTARY INFORMATION section of
this document.
ADDRESSES: Electronic copies of this proposed rule and supporting
documents are available from the HMS Management Division website at
<a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>.
You may submit comments on this document, identified by NOAA-NMFS-
2022-0015, by electronic submission. Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and enter ``NOAA-NMFS-2022-0015'' in the Search
box. Click on the ``Comment'' icon, complete the required fields, and
enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the close of the comment
period, may not be considered by NMFS. All comments received are a part
of the public record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff
(<a href="/cdn-cgi/l/email-protection#b9dad8cbcbd0dc97cad6d5cdd8d7d6dfdff9d7d6d8d897ded6cf"><span class="__cf_email__" data-cfemail="fd9e9c8f8f9498d38e9291899c93929b9bbd93929c9cd39a928b">[email protected]</span></a>) or Guy DuBeck (<a href="/cdn-cgi/l/email-protection#0b6c7e72256f7e696e68604b65646a6a256c647d"><span class="__cf_email__" data-cfemail="8cebf9f5a2e8f9eee9efe7cce2e3ededa2ebe3fa">[email protected]</span></a>) at 301-
427-8503.
SUPPLEMENTARY INFORMATION: North Atlantic shortfin mako sharks are
managed primarily under the authority of the Magnuson-Stevens Act (16
U.S.C. 1801 et seq.), as well as under ATCA (16 U.S.C. 971 et seq.)
because they are primarily caught in fisheries for tuna and tuna-like
species. Like other Atlantic highly migratory species, North Atlantic
shortfin mako sharks are managed under the 2006 Consolidated Atlantic
HMS Fishery Management Plan (2006 Consolidated HMS FMP) and its
amendments, implemented by regulations at 50 CFR part 635.
NMFS has prepared an Environmental Assessment (EA), Regulatory
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis
(IRFA), which analyze the anticipated environmental, social, and
economic impacts of several alternatives for each of the major issues
contained in this proposed rule. A brief summary of the alternatives
considered and the background of this proposed rule are provided below.
Additional information regarding this rule and overall Atlantic shark
management can be found in the draft EA/RIR/IRFA, the 2006 Consolidated
HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery
Evaluation (SAFE) Reports, and online at <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>.
A copy of the draft EA/RIR/IRFA prepared for this proposed rule is
available from NMFS (see ADDRESSES).
Recent ICCAT Shortfin Mako Shark Stock Assessments and Recommendations
The North Atlantic shortfin mako shark (Isurus oxyrinchus) is a
highly migratory species that ranges across the entire North Atlantic
Ocean and is caught by vessels from numerous countries. The stock is
predominantly caught in association with fisheries that primarily
target tunas and tuna-like species. While these sharks have been a
valued component of U.S. recreational and commercial fisheries, U.S.
catch represents only a small portion of the species' total catch in
the North Atlantic by all reporting countries. International measures
are, therefore, critical to effective conservation and management of
the species.
In 2017, ICCAT's scientific body, the Standing Committee on
Research and Statistics (SCRS), conducted a benchmark stock assessment
for North Atlantic shortfin mako sharks. ICCAT accepted the assessment
and adopted new management measures for the stock in ICCAT fisheries
(Recommendation 17-08). These measures largely focused on maximizing
live releases of North Atlantic shortfin mako sharks, allowing
retention only in certain limited circumstances, increasing minimum
size limits, and improving data collection. Further details are
available in Amendment 11 to the 2006 Consolidated HMS FMP (Amendment
11; 84 FR 5358, February 21, 2019). Following the SCRS assessment, NMFS
applied domestic stock status determination criteria in 2017 and
determined the stock to be overfished and experiencing overfishing.
In 2019, the SCRS completed a North Atlantic shortfin mako shark
stock assessment update and provided additional rebuilding information
that reflected rebuilding timeframes of two mean generation times
(through 2070). Following the update, ICCAT adopted Recommendation 19-
06, which maintained the shortfin mako shark management measures in
Recommendation 17-08 and called for the development of additional
measures in order to establish a rebuilding plan with a high
probability of avoiding overfishing and rebuilding the stock to biomass
at maximum sustainable yield (B<INF>MSY</INF>) within a timeframe that
takes into account the biology of the stock.
Given that Recommendation 19-06 called for the development of
additional measures in order to establish a rebuilding plan, ICCAT at
the November
[[Page 21078]]
2021 annual meeting adopted additional management measures for North
Atlantic shortfin mako sharks in Recommendation 21-09. This
recommendation prohibits retention of North Atlantic shortfin mako
sharks caught in association with ICCAT fisheries in 2022 and 2023.
Limited retention of shortfin mako sharks may be allowed in 2023 and
future years if ICCAT determines that fishing mortality is at a low
enough level North Atlantic-wide to allow retention consistent with the
conservation objectives of the recommendation. The recommendation aims
to limit total North Atlantic-wide shortfin mako shark fishing
mortality to no more than 250 metric tons (mt), which, the
recommendation states, is consistent with the conservation objectives
and the 2019 SCRS Kobe matrix, meaning that, at that level of fishing
mortality, it is expected that overfishing would not be occurring
(fishing mortality rate (F) < F<INF>MSY</INF>) and the stock would not
be overfished (spawning stock fecundity (SSF) > SSF<INF>MSY</INF>). The
SCRS will calculate the annual retention possibility each year based on
reported dead discards; live releases; and, where allowed, earlier
retention of shortfin mako sharks (with the SCRS providing estimates
for any data gaps), and subtracting the amount of that fishing
mortality from 250 mt. If applicable, the SCRS will also calculate
eligible parties' individual retention allowances each year, based on
the overall retention allowance and average annual catches from 2013
through 2016. The recommendation also calls on the SCRS and Panel 4 to
test and confirm the appropriateness of the approach for allowing
retention. The process and possible retention for 2023 will be
discussed at an ICCAT Panel 4 intersessional meeting and at the annual
meeting, both in November 2022.
Recommendation 21-09 also includes minimum standards for safe
handling and release procedures and enhanced reporting and compliance
requirements, which are consistent with existing HMS regulations and do
not require additional rulemaking for U.S. implementation. The
recommendation calls on the SCRS to continue to prioritize research
such as identifying mating, pupping and nursery grounds, and other high
concentration areas of North Atlantic shortfin mako sharks, options for
spatial-temporal measures, and mitigation measures. By 2024, the SCRS
will advise ICCAT on whether size restrictions are effective tools to
meet required mortality reductions. Future North Atlantic shortfin mako
shark stock assessments are called for in 2024, 2029, and 2034.
Recent U.S. Shortfin Mako Shark Management
Following the adoption of ICCAT Recommendation 17-08 and NMFS'
determination that the North Atlantic shortfin mako shark stock is
overfished with overfishing occurring, NMFS took action to implement
the binding ICCAT recommendation to immediately address overfishing and
begin to rebuild the shortfin mako shark stock. NMFS first published an
emergency rule in 2018 (83 FR 8946, March 2, 2018; measures extended
through March 2019, 83 FR 42452, August 22, 2018) followed by Amendment
11, with a final rule issued in 2019 (84 FR 5358, February 21, 2019),
to reduce fishing mortality of shortfin mako sharks in HMS commercial
and recreational fisheries. These rules allowed retention only in
certain limited circumstances, increased minimum size limits for
retention in the recreational fisheries, and improved data collection.
In commercial fisheries, Amendment 11 allowed retention of shortfin
mako sharks with pelagic longline gear only if the shark is dead at
haulback and there is a functional electronic monitoring system on
board the vessel, consistent with the ICCAT requirement. Amendment 11
also allowed retention of shortfin mako sharks caught with bottom
longline or gillnet gear by persons issued a Directed or Incidental
shark limited access permit (LAP) if the shark is dead at haulback,
without an electronic monitoring requirement, given the small number of
shortfin mako sharks that are caught in those fisheries and NMFS'
determination that additional monitoring was not necessary. In
recreational fisheries, Amendment 11 implemented an increase in the
minimum size limit for the retention of shortfin mako sharks from 54
inches fork length (FL) (137 cm FL) to 71 inches FL (180 cm FL) for
male shortfin mako sharks and 83 inches FL (210 cm FL) for female
shortfin mako sharks. Amendment 11 also expanded the requirement for
the use of circle hooks to all recreational shark fisheries in order to
reduce post-release mortality of shortfin mako sharks (the use of
circle hooks was already required in recreational shark fisheries south
of Chatham, MA, and for all pelagic longline and bottom longline
vessels).
At the time of the 2017 shortfin mako shark stock assessment and
adoption of Recommendation 17-08, U.S. catches represented
approximately 14 percent, on average, of total North Atlantic shortfin
mako catch. The measures in the emergency rule and Amendment 11 were
successful at reducing overall U.S. shortfin mako shark catch by 90
percent from 2013-2017 average levels, to approximately 3 percent of
total North Atlantic shortfin mako shark catch in 2020.
Proposed Measures
In order to meet domestic management objectives, implement
Recommendation 21-09, and acknowledge the possibility of future
retention, NMFS is proposing to implement a flexible shortfin mako
shark retention limit with a default limit of zero in commercial and
recreational HMS fisheries. Consistent with current ICCAT provisions,
the retention limit would be established as zero until Atlantic-wide
catch levels are below 250 mt, a level that has a high probability of
ending overfishing and starting to rebuild the stock. ICCAT determined
that this measure was needed to bring catch levels down to or below
that amount by all ICCAT parties, and thus was an important measure
contributing to conservation and management of the stock. The shortfin
mako shark retention limit per trip of zero would be in place unless
and until changed after consideration of regulatory criteria and
consistent with any ICCAT retention allowances pursuant to
Recommendation 21-09. The retention limit per trip would apply to
commercial vessels issued a Directed or Incidental shark LAP using
pelagic longline, bottom longline, or gillnet gear, and to recreational
HMS permit holders (those who hold HMS Angling or Charter/Headboat
permits, and Atlantic Tunas General category and Swordfish General
Commercial permits when participating in a registered HMS tournament).
Under the default limit of zero and existing prohibitions for other
gear types (see Sec. Sec. 635.21(a)(4) and 635.24(a)(4)(i) and (iii)),
all commercial and recreational fishermen would be required to release
all shortfin mako sharks, whether dead or alive at haulback.
During the fishing year, based on consideration of the inseason
trip limit adjustment criteria (Sec. 635.24(a)(8)) and to the extent
any future retention is allowable as determined by ICCAT consistent
with Recommendation 21-09, NMFS could increase the shortfin mako shark
retention limit from the default, or subsequently decrease the
retention limit, for the commercial fishery, the recreational fishery,
or both. If a retention limit greater than zero is implemented for the
commercial fishery, the current commercial shortfin mako shark
restrictions would apply,
[[Page 21079]]
including allowing retention of shortfin mako sharks caught using only
gillnet, bottom longline, or pelagic longline gear on properly-
permitted vessels, if the sharks are dead at haulback, and requiring
vessels with pelagic longline gear to have a functional electronic
monitoring system to retain shortfin mako sharks. Similarly, if a
retention limit greater than zero is implemented for the recreational
fishery, the current recreational shortfin mako shark restrictions
would apply, including minimum size limits of 71 inches FL (180 cm FL)
for male and 83 inches FL (210 cm FL) for female shortfin mako sharks.
For vessels that hold both a commercial shark permit and a permit with
a shark endorsement, the current requirements at Sec. Sec.
635.22(c)(7) and 635.24(a)(4)(iii) would apply. Vessels that hold such
combinations of permits are prohibited from selling shortfin mako
sharks, are required to follow the recreational limits, and cannot sell
any sharks if retaining shortfin mako sharks. While no upper retention
limit is being set in this action, any increase in retention limit
would need to be consistent with ICCAT recommendations and could only
be implemented after considering the regulatory criteria.
The flexible retention limit as proposed would apply in the HMS
bottom longline and gillnet fisheries for sharks, although those
fisheries are not considered to be ICCAT fisheries, which are defined
as fisheries for tuna or tuna-like species under the current ICCAT
Convention. This approach is consistent with the approach taken in
Amendment 11, where NMFS determined it was appropriate to implement
parallel management measures in the non-ICCAT shark fisheries given
that the stock remained overfished with overfishing occurring. This
approach would ensure consistency in HMS regulations, which will
provide clarity for both the regulated community and for enforcement
purposes and thus ensure more effective implementation. NMFS did not,
however, implement the ICCAT requirement that electronic monitoring be
onboard in these fisheries, because bottom longline and gillnet
fisheries have minimal interactions with this species, and electronic
monitoring was unnecessary to track such interactions effectively.
Under this rule, after considering the measures implemented under
Amendment 11 that considered the requirements of the Magnuson-Stevens
Act, the status of shortfin mako sharks, and the need for consistency,
NMFS is proposing to apply a flexible retention limit with a default of
zero to these gears.
Under this proposed rule, research and sampling of shortfin mako
sharks would continue to be allowed under exempted fishing permits
(EFPs) and scientific research permits (SRPs) (see Sec. Sec.
635.27(b)(4) and 635.32). Collection of shortfin mako sharks under
display permits would not be allowed, and collection of shortfin mako
sharks for research under EFPs and/or SRPs would be considered on a
case-by-case basis. Collection of shortfin mako sharks under EFPs and/
or SRPs could include sampling or limited retention where needed for
scientific research. Only non-lethal sampling would be permitted on
shortfin mako sharks that are alive at haulback. NMFS intends to limit
any EFPs and/or SRPs to closely monitored studies and to limit the
number of such permits and the number of sharks that may be sampled
and/or retained. In recent years (2018-2021), NMFS has issued eight
EFPs and related permits per year on average that include shortfin mako
sharks, and zero to one shortfin mako sharks were retained per year
under those permits. When retention is otherwise prohibited, any
retention pursuant to an EFP and/or SRP would be accounted for under
the applicable shark research and display quota. If retention is
otherwise permitted consistent with ICCAT recommendations, NMFS would
count any retention under EFPs and/or SRPs against the applicable ICCAT
retention allowance. Research on shortfin mako sharks is critical to
gathering scientific information about the stock and to help ensure
that stock assessments have sufficient data. Permitted collection of
shortfin mako sharks for scientific research would be consistent with
the biological sampling and research needs described in Recommendation
21-09 and other relevant ICCAT recommendations, as well as research
needs identified by the SCRS, including to provide data for future
shortfin mako shark stock assessments. For example, Recommendations 21-
09 and 13-10 provide for collection of biological samples of shortfin
mako and other sharks that are dead at haulback during commercial
fishing operations by scientific observers or individuals duly
permitted by the ICCAT party. If NMFS receives EFP or SRP applications
that are outside the scope described in this action, NMFS would provide
notice to the public and solicit comments through the annual EFP notice
of intent.
NMFS is also proposing a minor modification to the pelagic longline
gear restrictions at Sec. 635.21(c)(1)(iv) to further clarify the
shortfin mako shark live release requirements.
In addition to the proposed measures, in the EA for this action,
NMFS analyzed a no action alternative that would maintain the current
commercial and recreational shortfin mako shark regulations as
implemented under Amendment 11, and an alternative to place shortfin
mako sharks on the prohibited sharks list in the HMS regulations (see
Sec. Sec. 635.24(a)(5), 635.34(c), and Table 1, section D, in appendix
A to 50 CFR part 635). The EA for this action describes the impacts of
those two alternatives and the preferred alternative proposed here.
Request for Comments
NMFS is requesting comments on this proposed rule which may be
submitted via <a href="http://www.regulations.gov">www.regulations.gov</a> or at a public conference call/
webinar. NMFS solicits comments on this action by May 11, 2022 (see
DATES and ADDRESSES).
During the comment period, NMFS will hold a public hearing via
conference call and webinar for this proposed action. Information on
the conference call and webinar will be posted at: <a href="https://www.fisheries.noaa.gov/action/proposed-changes-atlantic-shortfin-mako-shark-retention-limits">https://www.fisheries.noaa.gov/action/proposed-changes-atlantic-shortfin-mako-shark-retention-limits</a>. Requests for sign language interpretation or
other auxiliary aids should be directed to Carrie Soltanoff at
<a href="/cdn-cgi/l/email-protection#7e1d1f0c0c171b500d11120a1f101118183e10111f1f50191108"><span class="__cf_email__" data-cfemail="b3d0d2c1c1dad69dc0dcdfc7d2dddcd5d5f3dddcd2d29dd4dcc5">[email protected]</span></a> or 301-427-8503, at least 7 days prior to the
meeting.
The public is reminded that NMFS expects participants at a public
webinar to conduct themselves appropriately. At the beginning of the
webinar, the moderator will explain how the webinar will be conducted
and how and when participants can provide comments. NMFS
representative(s) will structure the conference call and webinars so
that all members of the public will be able to comment, if they so
choose, regardless of the controversial nature of the subject(s).
Participants are expected to respect the ground rules, and those that
do not may be asked to leave the webinar.
Classification
The NMFS Assistant Administrator has determined that the proposed
rule is consistent with the 2006 Consolidated HMS FMP and its
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and
other applicable law, subject to further consideration after public
comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
[[Page 21080]]
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities. A description
of the action, why it is being considered, and the legal basis for this
action are contained at the beginning of this section in the preamble
and in the SUMMARY section of the preamble. A summary of the analysis
follows. A copy of this analysis is available from NMFS (see
ADDRESSES).
Section 603(b)(1) requires agencies to describe the reasons why the
action is being considered. In compliance with section 603(b)(1) of the
RFA, the purpose of this proposed rulemaking is, consistent with the
2006 Consolidated HMS FMP objectives, the Magnuson-Stevens Act, ATCA,
and other applicable law, to analyze the impacts of the alternatives
for implementing the ICCAT-recommended limit on retention of North
Atlantic shortfin mako sharks.
Section 603(b)(2) of the RFA requires agencies to state the
objectives of, and legal basis for, the proposed action. In compliance
with section 603(b)(2) of the RFA, the objective of this proposed
rulemaking is to implement ICCAT recommendation consistent with ATCA
and achieve domestic management objectives under the Magnuson-Stevens
Act.
Section 603(b)(3) of the RFA requires agencies to provide an
estimate of the number of small entities to which the rule would apply.
NMFS established a small business size standard of $11 million in
annual gross receipts for all businesses in the commercial fishing
industry (NAICS 11411) for RFA compliance purposes. The Small Business
Administration (SBA) has established size standards for all other major
industry sectors in the United States, including the scenic and
sightseeing transportation (water) sector (NAICS code 487210), which
includes for-hire (charter/party boat) fishing entities. The SBA has
defined a small entity under the scenic and sightseeing transportation
(water) sector as one with average annual receipts (revenue) of less
than $8.0 million.
NMFS considers all HMS permit holders, both commercial and for-
hire, to be small entities because they had average annual receipts of
less than their respective sector's standard of $11 million and $8
million. Regarding those entities that would be directly affected by
the proposed measures, the average annual revenue per active pelagic
longline vessel is estimated to be $202,000, based on approximately 90
active vessels that produced an estimated $18.2 million in revenue in
2020, well below the NMFS small business size standard for commercial
fishing businesses of $11 million. No single pelagic longline vessel
has exceeded $11 million in revenue in recent years. Other non-longline
HMS commercial fishing vessels typically earn less revenue than pelagic
longline vessels and, thus, would also be considered small entities.
The proposed rule would apply to the 213 Shark Directed LAP
holders, 256 Shark Incidental LAP holders, and 4,055 HMS Charter/
Headboat permit holders, based on 2021 data. Of those HMS Charter/
Headboat permit holders, 3,021 obtained shark endorsements. In 2018 and
2019, 800 HMS for-hire trips targeting shortfin mako sharks were taken
per year on average (7 percent on average of total HMS for-hire trips),
from Maine to Virginia as captured in Large Pelagics Survey data. These
trips were taken by, on average, 10 percent of HMS for-hire charter/
headboat vessels. On average, there were 44 Atlantic HMS tournaments
that targeted pelagic sharks (primarily shortfin mako sharks) in 2018
through 2021. There were approximately 1,555 directed shortfin mako
shark trips in registered HMS tournaments on average in 2018 through
2021. On average, 26 federally-permitted dealers per year purchased
shortfin mako sharks in 2018 through 2020. NMFS has determined that the
preferred alternative would not likely directly affect any small
organizations or small government jurisdictions defined under RFA, nor
would there be disproportionate economic impacts between large and
small entities.
Section 603(b)(4) of the RFA requires agencies to describe any new
reporting, record-keeping, and other compliance requirements. This
proposed rule does not contain any new collection of information,
reporting, or record-keeping requirements.
Under section 603(b)(5) of the RFA, agencies must identify, to the
extent practicable, relevant Federal rules which duplicate, overlap, or
conflict with the proposed action. Fishermen, dealers, and managers in
these fisheries must comply with a number of international agreements,
domestic laws, and other fishery management measures. These include,
but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas
Fishing Compliance Act, the Marine Mammal Protection Act, the
Endangered Species Act, the National Environmental Policy Act, the
Paperwork Reduction Act, and the Coastal Zone Management Act. This
proposed action has been determined not to duplicate, overlap, or
conflict with any Federal rules.
Under section 603(c) of the RFA, agencies must describe any
significant alternatives to the proposed rule which accomplish the
stated objectives of applicable statutes and which minimize any
significant economic impact of the proposed rule on small entities.
Specifically, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general
categories of significant alternatives to assist an agency in the
development of significant alternatives. These categories of
alternatives are: (1) Establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) use of
performance rather than design standards; and, (4) exemptions from
coverage of the rule, or any part thereof, for small entities.
NMFS examined each of these categories of alternatives. Regarding
the first, second, and fourth categories, NMFS cannot establish
differing compliance or reporting requirements for small entities or
exempt small entities from coverage of the rule or parts of it because
all of the businesses impacted by this rule are considered small
entities and thus the requirements are already designed for small
entities. NMFS does not know of any performance or design standards
that would satisfy the aforementioned objectives of this rulemaking
while, concurrently, complying with the Magnuson-Stevens Act. As
described below, NMFS analyzed several different alternatives in this
proposed rulemaking, and provides rationales for identifying the
preferred alternative to achieve the desired objectives.
The alternatives considered and analyzed are described below. The
IRFA assumes that each vessel will have similar catch and gross
revenues to show the relative impact of the proposed action on vessels.
Alternative 1, the no action alternative, would not implement any
new management measures in the commercial or for-hire shark fisheries
to decrease mortality of shortfin mako sharks. In recent years, about
49,000 pounds dressed weight (dw) (22,000 kilograms dw) of shortfin
mako sharks have been landed commercially on average from 2018 through
2020 and the commercial revenues from shortfin mako sharks have
averaged
[[Page 21081]]
approximately $96,000 per year. The number of pounds of shortfin mako
shark landed, revenue, and number of pelagic longline vessels that
landed shortfin mako sharks was lower in 2020 compared to 2018 and 2019
(average landings in 2018 and 2019 were 55,700 pounds dw (25,000
kilograms dw), average revenue was approximately $109,600 per year, and
average number of pelagic longline vessels landing shortfin mako sharks
was 53). Almost all of the shortfin mako shark commercial landings,
based on dealer reports, were made by pelagic longline vessels. An
average of 49 pelagic longline vessels landed shortfin mako sharks from
2018 through 2020. Therefore, the average annual revenue from shortfin
mako shark landings per pelagic longline vessel is approximately $1,960
per year ($96,000/49) under the current regulations. For-hire shark
fishing operations by HMS Charter/Headboat permit holders as well as
HMS tournament operations would also remain the same. This alternative
would result in no additional economic impacts on small entities
associated with these fisheries in the short- or long-term.
Alternative 2, the preferred alternative, would implement a
flexible shortfin mako shark retention limit with a default limit of
zero. The limit of zero would be in place unless and until changed
after considering inseason trip limit adjustment criteria (Sec.
635.24(a)(8)) and when consistent with ICCAT retention allowances
pursuant to Recommendation 21-09. This would apply to commercial
vessels issued a Directed or Incidental shark LAP and to HMS Charter/
Headboat permit holders. Under a retention limit of zero, HMS for-hire
fishermen and commercial vessels would be required to release all
shortfin mako sharks that are alive at haulback and discard all
shortfin mako sharks that are dead at haulback. In recent years, about
49,000 pounds dw (22,000 kilograms dw) of shortfin mako sharks have
been landed commercially on average from 2018 through 2020, and the
commercial revenues from shortfin mako sharks have averaged
approximately $96,000 fishery-wide per year. Almost all of the shortfin
mako shark commercial landings, based on dealer reports, were made by
pelagic longline vessels. An average of 49 pelagic longline vessels
landed shortfin mako sharks from 2018 through 2020. Therefore, the
average loss in annual revenue from shortfin mako shark landings per
pelagic longline vessel that landed shortfin mako sharks would be
approximately $1,960 per year ($96,000/49). However, the overall
economic impacts associated with these reductions in revenue are not
expected to be substantial, as shortfin mako sharks comprise less than
one percent of total HMS ex-vessel revenues on average. Additionally,
the magnitude of shortfin mako landings by other commercial gear types
(bottom longline and gillnet) is very small. This alternative would
have minor economic costs on small entities in those commercial
fisheries compared to the no action alternative because these measures
would reduce the number of shortfin mako sharks landed and sold by
these fishing vessels. Shortfin mako sharks are rarely a target
species, however, and generate much less revenue overall than other
more valuable target species. In for-hire fisheries and tournaments,
retention would be prohibited, and fishermen would only be authorized
to catch and release shortfin mako sharks. A retention limit of zero
for shortfin mako sharks is likely to be a disincentive to fishing by
some portion of the for-hire shark fishery, particularly those
individuals that would otherwise have planned to target and retain
shortfin mako sharks. Charter/headboat operators may experience some
decline in demand if shortfin mako sharks may not be retained,
resulting in minor adverse economic impacts. For Atlantic HMS
tournaments, the 1,555 directed shortfin mako shark trips, on average,
that take place in HMS tournaments would likely no longer take place,
resulting in a loss of approximately $1.1 million in expenditures, out
of an estimated $85.6 million in total HMS tournament expenditures by
participating teams. Overall, this alternative would have minor
economic costs on small entities in the short-term compared to the no
action alternative.
During the fishing year, based on the inseason trip limit
adjustment criteria (Sec. 635.24(a)(8)), and to the extent consistent
with any future retention allowance that is determined by ICCAT
pursuant to Recommendation 21-09, NMFS could increase the shortfin mako
shark retention limit for the commercial fishery, the recreational
fishery, or both, as appropriate. If the retention limit for the
commercial and recreational fisheries is greater than zero, the current
shortfin mako shark regulatory requirements, described under
Alternative 1, would apply. This would result in no additional economic
impacts on small entities associated with this fishery in the long-term
compared to the no action alternative.
Alternative 3 would place shortfin mako on the prohibited sharks
list to prohibit any catch or retention of shortfin mako sharks in
commercial and recreational HMS fisheries. See Table 1, section D, in
appendix A to 50 CFR part 635 (prohibited sharks list), Sec.
635.24(a)(5) (related vessel restrictions), and Sec. 635.34(c)
(criteria for adding species to, or removing species from, the
prohibited shark species group). The overall economic impacts
associated with reductions in revenue for the commercial and for-hire
fisheries and HMS tournaments would be similar to those described under
Alternative 2 and are not expected to be substantial, as shortfin mako
sharks comprise less than one percent of total HMS ex-vessel revenues
on average. This alternative would have minor economic costs on small
entities in commercial fisheries because no shortfin mako sharks would
be landed and sold by these fishing vessels under these measures.
Shortfin mako sharks are rarely a target species, however, and generate
less revenue overall than other more valuable target species. In for-
hire fisheries and tournaments, retention would be prohibited, and
fishermen would only be authorized to catch and release shortfin mako
sharks. A prohibition on the retention of shortfin mako sharks is
likely to be a disincentive for some portion of the for-hire shark
fishery, particularly those individuals that would otherwise have
planned to target and retain shortfin mako sharks. Charter/headboat
operators may experience some decline in demand, resulting in adverse
economic impacts. For Atlantic HMS tournaments, the 1,555 directed
shortfin mako shark trips, on average, that take place in HMS
tournaments would likely no longer take place, resulting in a loss of
approximately $1.1 million in expenditures, out of an estimated $85.6
million in total HMS tournament expenditures by participating teams.
Overall, Alternative 3 would have minor economic costs on small
entities in the short- and long-term.
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Statistics,
Treaties.
Dated: April 5, 2022.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 635 is
proposed to be amended as follows:
[[Page 21082]]
PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES
0
1. The authority citation for part 635 continues to read as follows:
Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.
0
2. In Sec. 635.20, revise paragraph (e)(6) to read as follows:
Sec. 635.20 Size limits.
* * * * *
(e) * * *
(6) For shortfin mako sharks landed when the recreational retention
limit specified at Sec. 635.22(c)(8) is greater than zero, males must
be at least 71 inches (180 cm) fork length, and females must be at
least 83 inches (210 cm) fork length.
* * * * *
0
3. In Sec. 635.21, revise paragraph (c)(1)(iv) to read as follows:
Sec. 635.21 Gear operation and deployment restrictions.
* * * * *
(c) * * *
(1) * * *
(iv) Has pelagic longline gear on board, persons aboard that vessel
are required to promptly release in a manner that causes the least harm
any shortfin mako shark that is alive at the time of haulback,
consistent with the requirements specified at paragraphs (a)(1) and
(c)(6)(i) of this section. When the commercial retention limit
specified at Sec. 635.24(a)(4)(v) is greater than zero, any shortfin
mako shark that is dead at the time of haulback may be retained
provided the electronic monitoring system is installed and functioning
in compliance with the requirements at Sec. 635.9.
* * * * *
0
4. In Sec. 635.22, revise paragraph (c)(2) and add paragraph (c)(8) to
read as follows:
Sec. 635.22 Recreational retention limits.
* * * * *
(c) * * *
(2) Only one shark from the following list may be retained per
vessel per trip, subject to the size limits described in Sec.
635.20(e)(2) and (4): Atlantic blacktip, Gulf of Mexico blacktip, bull,
great hammerhead, scalloped hammerhead, smooth hammerhead, lemon,
nurse, spinner, tiger, blue, common thresher, oceanic whitetip,
porbeagle, Atlantic sharpnose, finetooth, Atlantic blacknose, Gulf of
Mexico blacknose, and bonnethead.
* * * * *
(8) At the start of each fishing year, the default shortfin mako
shark retention limit of zero sharks per vessel per trip will apply.
During the fishing year, NMFS may adjust the default shortfin mako
shark trip limit per the inseason trip limit adjustment criteria listed
in Sec. 635.24(a)(8). Any retention within the trip limit is subject
to the size limits described in Sec. 635.20(e)(6).
* * * * *
0
5. In Sec. 635.24:
0
a. Add a heading for paragraph (a)(4);
0
b. Revise paragraphs (a)(4)(i) and (iii);
0
c. Add paragraph (a)(4)(v);
0
d. Revise paragraphs (a)(8)(v) and (vi); and
0
e. Add paragraph (a)(8)(vii).
The additions and revisions read as follows:
Sec. 635.24 Commercial retention limits for sharks, swordfish, and
BAYS tunas.
* * * * *
(a) * * *
(4) Additional retention limits for sharks. (i) Except as provided
in Sec. 635.22(c)(7), a person who owns or operates a vessel that has
been issued a directed shark LAP may retain, possess, land, or sell
pelagic sharks if the pelagic shark fishery is open per Sec. Sec.
635.27 and 635.28. Shortfin mako sharks may be retained by persons
aboard vessels using pelagic longline, bottom longline, or gillnet gear
only if NMFS has adjusted the commercial retention limit above zero
pursuant to paragraph (a)(4)(v) of this section and only if the shark
is dead at the time of haulback and consistent with the provisions of
Sec. Sec. 635.21(c)(1), (d)(5), and (g)(6) and 635.22(c)(7).
* * * * *
(iii) Consistent with paragraph (a)(4)(ii) of this section, a
person who owns or operates a vessel that has been issued an incidental
shark LAP may retain, possess, land, or sell no more than 16 SCS and
pelagic sharks, combined, per vessel per trip, if the respective
fishery is open per Sec. Sec. 635.27 and 635.28. Of those 16 SCS and
pelagic sharks per vessel per trip, no more than 8 shall be blacknose
sharks. Shortfin mako sharks may only be retained under the commercial
retention limits by persons using pelagic longline, bottom longline, or
gillnet gear only if NMFS has adjusted the commercial retention limit
above zero pursuant to paragraph (a)(4)(v) of this section and only if
the shark is dead at the time of haulback and consistent with the
provisions at Sec. 635.21(c)(1), (d)(5), and (g)(6). If the vessel has
also been issued a permit with a shark endorsement and retains a
shortfin mako shark, recreational retention limits apply to all sharks
retained and none may be sold, per Sec. 635.22(c)(7).
* * * * *
(v) At the start of each fishing year, the default shortfin mako
shark retention limit of zero sharks will apply. During the fishing
year, NMFS may adjust the default shortfin mako shark trip limit per
the inseason trip limit adjustment criteria listed in paragraph (a)(8)
of this section.
* * * * *
(8) * * *
(v) Variations in seasonal distribution, abundance, or migratory
patterns of the relevant shark species based on scientific and fishery-
based knowledge;
(vi) Effects of catch rates in one part of a region or sub-region
precluding vessels in another part of that region or sub-region from
having a reasonable opportunity to harvest a portion of the relevant
quota; and/or
(vii) Any shark retention allowance set by ICCAT, the amount of
remaining allowance, and the expected or reported catch rates of the
relevant shark species, based on dealer and other harvest reports.
* * * * *
0
6. In Sec. 635.27, revise paragraph (b)(4)(i) and add paragraph
(b)(4)(v) to read as follows:
Sec. 635.27 Quotas.
* * * * *
(b) * * *
(4) * * *
(i) The base annual quota for persons who collect LCS other than
sandbar, SCS, pelagic sharks other than shortfin mako, blue sharks,
porbeagle sharks, or prohibited species under a display permit or EFP
is 57.2 mt ww (41.2 mt dw).
* * * * *
(v) No persons may collect shortfin mako sharks under a display
permit. Collection of shortfin mako sharks for research under EFPs and/
or scientific research permits (SRPs) may be considered on a case-by-
case basis and any associated mortality would be deducted from the
shark research and display quota if shortfin mako shark retention is
otherwise prohibited or counted against U.S. allowable retention levels
established at ICCAT when retention is allowed.
* * * * *
[FR Doc. 2022-07659 Filed 4-8-22; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on April 11, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.