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Rule2022-14116

Atlantic Highly Migratory Species; Shortfin Mako Shark Retention Limit

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Published

July 1, 2022

Effective

July 5, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

In this final rule, NMFS is implementing a flexible shortfin mako shark retention limit with a default limit of zero in commercial and recreational Atlantic highly migratory species (HMS) fisheries. The default limit of zero will remain in place unless and until changed. Under this final rule, future changes to the retention limit can only be made based on consideration of 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 recommendations 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

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<title>Federal Register, Volume 87 Issue 126 (Friday, July 1, 2022)</title>
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[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Rules and Regulations]
[Pages 39373-39383]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14116]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 220627-0143]
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: Final rule.

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SUMMARY: In this final rule, NMFS is implementing a flexible shortfin
mako shark retention limit with a default limit of zero in commercial
and recreational Atlantic highly migratory species (HMS) fisheries. The
default limit of zero will remain in place unless and until changed.
Under this final rule, future changes to the retention limit can only
be made based on consideration of 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 recommendations 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: This final rule is effective July 5, 2022.

ADDRESSES: Electronic copies of this final rule and supporting
documents are available from the Atlantic 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> or by contacting Carrie Soltanoff at
<a href="/cdn-cgi/l/email-protection#b9dad8cbcbd0dc97cad6d5cdd8d7d6dfdff9d7d6d8d897ded6cf">[email&#160;protected]</a> or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff
(<a href="/cdn-cgi/l/email-protection#513230232338347f223e3d25303f3e3737113f3e30307f363e27">[email&#160;protected]</a>), Guy DuBeck (<a href="/cdn-cgi/l/email-protection#a3c4d6da8dc7d6c1c6c0c8e3cdccc2c28dc4ccd5">[email&#160;protected]</a>), Erianna
Hammond (<a href="/cdn-cgi/l/email-protection#1376617a727d7d723d7b727e7e7c7d77537d7c72723d747c65">[email&#160;protected]</a>), or Ann Williamson
(<a href="/cdn-cgi/l/email-protection#8feee1e1a1f8e6e3e3e6eee2fce0e1cfe1e0eeeea1e8e0f9">[email&#160;protected]</a>) at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic shark fisheries are managed
primarily under the authority of the Magnuson-Stevens Act (16 U.S.C.
1801 et seq.) and ATCA (16 U.S.C. 971 et seq.). The 2006 Consolidated
Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) and
its amendments are implemented by regulations at 50 CFR part 635. ATCA
authorizes the Secretary of Commerce to promulgate such regulations as
necessary and appropriate to carry out ICCAT recommendations. The
authority to issue regulations under the Magnuson-Stevens Act and ATCA
has been delegated from the Secretary of Commerce to the NMFS Assistant
Administrator.
Background information about the need to implement a retention
limit for shortfin mako sharks was provided in the preamble to the
proposed rule (87 FR 21077, April 11, 2022) and is not repeated here.
The comment period for the proposed rule closed on May 11, 2022. NMFS
received 22 written comments as well as oral comments during the public
hearing held by webinar on April 27, 2022. The comments received, and
the responses to those comments, are summarized in the Response to
Comments section. After considering public comments on the proposed
rule, NMFS is finalizing the rule as proposed. As described, no changes
are made from the proposed rule.
NMFS has prepared an Environmental Assessment (EA), Regulatory
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA),
which analyze the anticipated environmental, social, and economic
impacts of several alternatives for each of the major issues contained
in this final rule. The full list of alternatives and their analyses
are provided in the final EA/RIR/FRFA and are not repeated here. A
summary of the FRFA is provided below. A copy of the final EA/RIR/FRFA
prepared for this final rule is available from NMFS (see ADDRESSES).
As described in the proposed rule, Recommendation 21-09, adopted at
the November 2021 ICCAT annual meeting, 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.
In order to meet domestic management objectives, implement
Recommendation 21-09, and acknowledge the possibility of future
retention, this final rule implements a flexible shortfin mako shark
retention limit with a default limit of zero in commercial and
recreational HMS fisheries. The retention limit applies to commercial
vessels issued a Shark

[[Page 39374]]

Directed or Shark Incidental LAP using pelagic longline, bottom
longline, or gillnet gear, and to recreational HMS permit holders
(those who hold HMS Angling or Charter/Headboat permits). It also
applies to Atlantic Tunas General category and Swordfish General
Commercial permits when participating in a registered HMS tournament.
Retention already is not allowed for other permits and gear types (see
Sec. Sec. 635.21(a)(4) and 635.24(a)(4)(i) and (iii)). Thus, retention
in all commercial and recreational fisheries is prohibited for 2022
consistent with the ICCAT recommendation, and all commercial and
recreational fishermen are required to release all shortfin mako
sharks, whether dead or alive, at haulback.
The shortfin mako shark retention limit per trip of zero will
remain in place unless changed after consideration of the inseason trip
limit adjustment criteria (Sec. 635.24(a)(8)) and consistent with any
ICCAT retention allowances pursuant to Recommendation 21-09. If the
retention limit is increased, it would apply only to commercial vessels
issued a Shark Directed or Shark Incidental LAP using pelagic longline,
bottom longline, or gillnet gear, and/or 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). It would
not apply to other fisheries and gear types where retention is
otherwise prohibited. If a retention limit greater than zero is
implemented for the commercial fishery, the commercial shortfin mako
shark fishing restrictions in effect prior to this final rule would
once again also apply. Similarly, if a retention limit greater than
zero is implemented for the recreational fishery, the recreational
shortfin mako shark fishing restrictions in effect prior to this final
rule would again also apply.
Additionally, under this final rule, research and sampling of
shortfin mako sharks continues to be allowable 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 is not allowed. Applications for EFPs and/or SRPs will
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 such 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. When retention is
otherwise prohibited, any retention pursuant to an EFP and/or SRP will
be accounted for under the applicable shark research and display quota.
If retention is otherwise permitted, consistent with ICCAT
recommendations, NMFS will count any retention under EFPs and/or SRPs
against the applicable ICCAT retention allowance.
NMFS is also making 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.

Response to Comments

Written comments can be found at <a href="http://www.regulations.gov">www.regulations.gov</a> by searching
for ``NOAA-NMFS-2022-0015.'' Below, NMFS summarizes and responds to the
comments made on the proposed rule during the comment period.
Comment 1: NMFS received several comments in support of the
proposed measures (preferred Alternative 2 in the EA for this action).
Commenters stated that they supported these measures due to the ICCAT
stock assessment showing that the North Atlantic shortfin mako shark
stock is overfished and subject to overfishing; the role of shortfin
mako sharks as apex predators in the marine ecosystem; the life history
traits of this species including slow growth and late reproductive
maturity; the high risk of this species to overfishing; and listing of
this species as endangered on the International Union for Conservation
of Nature (IUCN) Red List of Threatened Species. Some commenters
supported the zero retention limit in order to allow sustainable
commercial and recreational fishing for shortfin mako sharks in the
future.
Response: NMFS agrees that these measures, along with other
conservation and management measures that are in place, are appropriate
given the stock assessment conclusion that the North Atlantic shortfin
mako shark stock is overfished and subject to overfishing. These
measures are based on the best scientific information available, which
recognizes the species' life history traits, including late
reproductive maturity. NMFS shares the commenters' view that putting a
retention limit of zero in place now should contribute to allowing the
population to support future sustainable fisheries.
Regarding the IUCN Red List status of shortfin mako sharks, NMFS
scientists participate in the species assessment for the Red List, but
NMFS does not base management actions on IUCN designations. The IUCN
uses different criteria than applicable under the Endangered Species
Act (ESA) for determining whether a species is threatened or endangered
or for determining whether stocks are overfished or overfishing is
occurring under the Magnuson-Stevens Act.
Comment 2: Several comments supported a retention limit of zero for
shortfin mako sharks but stated that the retention limit should be
extended domestically beyond 2023, even if some level of retention is
allowed beginning in 2023 under Recommendation 21-09, and stay in place
until the population is rebuilt, as determined by a stock assessment.
Some commenters urged NMFS to take a precautionary approach to shortfin
mako shark management. Some commenters stated that allowing retention
before the population is rebuilt would be inconsistent with the best
scientific information available, as required under National Standard 2
of the Magnuson-Stevens Act.
Response: NMFS disagrees that the HMS regulations should specify
that the retention limit of zero for shortfin mako sharks should remain
in place until the population is determined to be rebuilt. The purpose
of this action is to implement ICCAT Recommendation 21-09, which
includes the possibility of limited future retention of shortfin mako
sharks as determined by ICCAT consistent with this recommendation.
Recommendation 21-09 specifies that retention may only occur when the
overall level of fishing mortality prevents overfishing with a high
probability (i.e., under 250 mt for all ICCAT parties combined).
Recommendation 21-09 also provides that a rebuilding program for North
Atlantic shortfin mako shark is being undertaken starting in 2022 to
end overfishing immediately and gradually achieve biomass levels
sufficient to support maximum sustainable yield (MSY) by 2070 with a
probability of a range of between 60 and 70 percent at least. The
initial aim of the recommendation is to reduce total fishing mortality,
to maintain mortality at sustainable levels to rebuild the stock, and
to establish a process to determine whether in any given year there is
a possibility for retention. ICCAT determinations regarding longer-term
retention or measures that are appropriately part of a rebuilding plan
have not yet been made. As described in Chapter 4.1 of the EA, possible
future increase of the shortfin mako shark retention limit above zero,
consistent with the limits specified in Recommendation 21-09 and the
domestic inseason adjustment criteria, would not be expected to have an

[[Page 39375]]

adverse impact on the stock. Additionally, the U.S. portion of total
ICCAT shortfin mako shark catch has historically been low
(approximately 14 percent, on average, at the time of the 2017 stock
assessment). Under a retention limit greater than zero, U.S. retention
would continue to be limited by the commercial and recreational
restrictions under the current regulations. Further, Recommendation 21-
09 limits possible future retention of shortfin mako sharks to those
that are dead at haulback.
Regarding National Standard 2 of the Magnuson-Stevens Act, as
described in Chapter 8 of the EA, National Standard 2 requires that
conservation and management measures be based on the best scientific
information available. NMFS determined that the preferred Alternative
2, implemented in this action, is consistent with National Standard 2.
These measures are based on the latest ICCAT Standing Committee on
Research and Statistics (SCRS) stock assessment for shortfin mako
sharks, and specific SCRS advice regarding recommended management
approaches (i.e., no retention) pending reduction of catch below 250
mt. Any shortfin mako shark retention allowed by ICCAT would take into
consideration the best scientific information available regarding
landings and dead discards across all ICCAT parties. Results from the
stock assessment and the other data sources represent the best
available science.
Comment 3: One commenter stated that the current commercial fishery
restrictions would apply if the flexible shortfin mako shark retention
limit were increased above zero, and that the current restrictions are
inadequate to rebuild the population.
Response: Regarding the commercial fishery regulations in effect
prior to this final rule, in the FEIS for Amendment 11 to the 2006
Consolidated HMS FMP (Amendment 11), NMFS concluded that the commercial
measures would have short- and long-term minor beneficial ecological
impacts to the North Atlantic shortfin mako shark stock. The Amendment
11 measures were implemented to reduce U.S. shortfin mako shark catch
to levels consistent with ending overfishing and beginning to rebuild
the stock. U.S. shortfin mako shark catch is a small percentage of
total North Atlantic-wide catch and so domestic reductions in shortfin
mako shark mortality alone cannot end overfishing of, or rebuild, the
entire North Atlantic stock.
Comment 4: NMFS received several comments in support of a non-
preferred alternative (Alternative 3) to prohibit retention of shortfin
mako sharks through placing the species on the Atlantic HMS prohibited
sharks list. Commenters stated that this alternative would be in line
with the SCRS advice and Recommendation 21-09. Commenters also stated
that NMFS' analyses show that this measure would not have substantial
economic impacts on commercial or for-hire fisheries or HMS
tournaments. One commenter stated that shortfin mako sharks also meet
one of the criteria for putting sharks on the prohibited species list,
Sec. 635.34(c)(4), because the species is difficult to distinguish
from other prohibited species, since it is easily confused with longfin
mako sharks.
Response: NMFS is not implementing Alternative 3 (prohibit
retention of shortfin mako sharks) at this time because that measure
would be beyond the scope of this action to implement ICCAT
Recommendation 21-09. Under Sec. 635.34(c), NMFS considers four
criteria when placing a species on the Atlantic HMS prohibited species
list. These criteria are: (1) Biological information indicating that
the stock warrants protection; (2) Information indicating that the
species is rarely encountered or observed caught in HMS fisheries; (3)
Information indicating that the species is not commonly encountered or
observed caught as bycatch in fishing operations for species other than
HMS; and (4) Whether the species is difficult to distinguish from other
prohibited species.
Although shortfin mako sharks meet criteria 1 and 3 of the four
prohibited species criteria, NMFS is not adding shortfin mako sharks to
the prohibited species list for several reasons. First, if ICCAT should
make changes to the retention allowance in the future under
Recommendation 21-09, the preferred alternative gives NMFS flexibility
to make changes to the retention limit quickly to allow U.S. fishermen
the opportunity to potentially land shortfin mako sharks, or to again
prohibit retention quickly by setting the limit at zero when needed.
Additionally, the shortfin mako shark mortality associated with current
U.S. landings is minimal when compared to the total North Atlantic
shortfin mako shark mortality. Therefore, NMFS is not implementing this
alternative at this time.
Regarding criterion four, shortfin mako sharks are not easily
confused with other shark species. The species that look the most like
shortfin mako sharks are porbeagle and white sharks. However, there are
several clear differences in their dorsal fin coloration, second dorsal
fin position, and teeth. Porbeagle sharks have a unique white patch on
the trailing edge of the first dorsal fin, which makes the mark a great
identification characteristic that can easily be seen while the shark
is alive and in the water. The position of the second dorsal fin is in
line with the anal fin in porbeagle and shortfin mako sharks, while the
second dorsal fin is positioned between the pelvic and anal fin in
white sharks. If the shark is brought to the vessel dead, fishermen
could also examine the teeth before deciding whether the species can be
retained. Specifically, porbeagle sharks have smooth, bladelike teeth
with cusplets, while shortfin mako sharks have smooth, bladelike teeth
without cusplets, and white sharks have large, triangular, serrated
teeth. One of the commenters suggested that shortfin mako sharks could
be mistaken for longfin mako sharks. NMFS has not found that to be
true. Longfin mako sharks have been on the prohibited species list
since 2000. During that time, few fishermen have mistaken the species
for shortfin mako sharks. Compared to shortfin mako sharks, longfin
mako sharks have much longer pectoral fins, have a different body
shape, and are dark on the underside of the snout.
Comment 5: One comment supported the proposed flexible retention
limit for shortfin mako sharks as a short-term solution with the goal
of ultimately adding the shortfin mako shark to the prohibited sharks
list in the long-term.
Response: For the reasons described in the responses to Comments 1
and 4 and Chapter 4 of the EA, NMFS is implementing the measures under
preferred Alternative 2 to implement a flexible shortfin mako shark
retention limit with a default limit of zero, and is not adding the
species to the HMS prohibited sharks list under Alternative 3. This
does not preclude NMFS from adding shortfin mako sharks to the
prohibited sharks list in the future if new information or
international or domestic action necessitate that measure, for example,
under a future ICCAT recommendation or following domestic
determinations under the ESA.
Comment 6: NMFS received several comments supporting a ban on
shortfin mako shark retention, rather than a flexible retention limit
with a default limit of zero. Commenters supported banning retention
due to the ICCAT stock assessment showing that the North Atlantic
shortfin mako shark stock is overfished and subject to overfishing; the
scientific advice and projections from the SCRS, including that the
population will continue to decline for several years before it begins
to recover, even with no retention; the need to

[[Page 39376]]

incentivize avoidance of this species by fishing vessels; the high
susceptibility of the species as identified in the SCRS Ecological Risk
Assessment for sharks; the role of shortfin mako sharks as apex
predators in the marine ecosystem; the life history traits of this
species including slow growth and late reproductive maturity; listing
of this species as endangered on the IUCN Red List; the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) status of this species; and the need to save this species from
extinction. Some commenters specifically opposed flexibility in the
retention limit. One commenter supported maintaining a full retention
ban until at least 2035 or whenever a new stock assessment demonstrates
rebuilding will be successful.
Response: NMFS disagrees that the Agency should implement a
retention ban for shortfin mako sharks, which NMFS understands to mean
implementing a retention limit of zero with no flexibility to increase
the retention limit in the future. NMFS believes that implementation of
the preferred alternative, including a flexible retention limit, best
meets the purpose and need for this action: to implement ICCAT
Recommendation 21-09. If retention is later allowed by ICCAT pursuant
to the provisions in the recommendation, section 304(g)(1)(D) of the
Magnuson-Stevens Act requires the Agency to provide fishing vessels
with a reasonable opportunity to harvest U.S. allocation or quota under
an international fishery agreement. Under these measures, NMFS could
change the shortfin mako shark retention limit based on the inseason
trip limit adjustment criteria where consistent with any future
retention allowance that is determined by ICCAT consistent with
Recommendation 21-09. ICCAT adopted Recommendation 21-09 in order to
address the stock status of North Atlantic shortfin mako sharks
(overfished and experiencing overfishing) and recognizing the results
of the SCRS ecological risk assessment for sharks and the SCRS advice
that, regardless of allowable catch levels, the shortfin mako shark
spawning stock biomass will continue to decline until 2035 before any
increase can occur, owing to the time it takes juveniles to reach
maturity. As described in Chapter 4 of the EA, these measures may have
the effect of disincentivizing shortfin mako shark catch, although only
to the extent commercial fishermen could further explore and find ways
to avoid shortfin mako sharks through gear modification or changing
fishing locations.
Regarding CITES status, the CITES status of shortfin mako sharks
has been addressed in the United States through appropriate permitting
requirements, and is outside the scope of this rulemaking. CITES
classifies species based on the level of trade monitoring needed to
ensure the population recovers or remains healthy. Through CITES, the
United States has agreed to increase protections and international
trade monitoring for a number of shark species, including shortfin mako
sharks. Shortfin mako sharks are included in CITES Appendix II, under
which commercial international trade is allowed, and in the United
States permit requirements specific to CITES are managed primarily by
the U.S. Fish and Wildlife Service. IUCN Red List status of shortfin
mako sharks is discussed in the response to Comment 1.
Comment 7: NMFS received a comment that retention of shortfin mako
sharks for scientific research should be banned as well, because that
activity risks fatal injuries to the sharks.
Response: Determinations regarding individual EFPs or SRPs for
shortfin mako research would be made on a case-by-case basis; NMFS is
not authorizing any particular research, retention, or sampling with
this final rule. NMFS disagrees that scientific research sampling of
shortfin mako sharks should be banned under HMS EFPs and SRPs. As
described in Chapter 2 of the EA, considering the fact that the
shortfin mako shark retention limit will otherwise be set at zero, NMFS
intends to limit any EFPs and SRPs to closely monitored studies, and to
limit the number of such permits and the number of sharks that may be
retained, if any. Research on shortfin mako sharks is critical to
gathering scientific information about the stock and to helping ensure
that stock assessments have sufficient data. Permitted collection of
shortfin mako sharks for scientific research is 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 (Recommendation on Biological Sampling of Prohibited Shark
Species by Scientific Observers) 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.
Comment 8: Some comments supported including all relevant
commercial and recreational fisheries in the scope of this rulemaking,
including fisheries, such as bottom longline and gillnet shark
fisheries, which are not considered ICCAT fisheries.
Response: NMFS agrees with the commenters on including gears that
are not associated with ICCAT fisheries, such as bottom longline and
gillnet shark fisheries, in this action. 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 ensures consistency in HMS
regulations across gear types, which will provide clarity for both the
regulated community and for enforcement purposes and thus ensure more
effective implementation. The purpose of this action is to implement
ICCAT Recommendation 21-09, which prohibits the retention of North
Atlantic shortfin mako sharks caught in association with ICCAT
fisheries in 2022 and 2023, among other measures. In this action, 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 applying a flexible
retention limit with a default of zero to non-ICCAT fishery gear types
(bottom longline and gillnet).
Comment 9: NMFS received a comment that the alternative to prohibit
retention of shortfin mako sharks is the most consistent with National
Environmental Policy Act (NEPA) requirements, since public comment
would be taken on any future action to allow retention. The commenter
stated that the flexible retention limit under the preferred
alternative, on the other hand, would not require public comment to
increase the retention limit, which would be inconsistent with NEPA
requirements. The commenter further stated that the preferred
alternative did not analyze an upper retention limit and therefore the
analyses in the EA are inadequate.
Response: NMFS disagrees that increasing the shortfin mako shark
retention limit in the future would be inconsistent with NEPA
requirements. Inseason trip limit adjustment criteria are described in
the current HMS regulations (see Sec. 635.24(a)(8)), as augmented in
this action, and those

[[Page 39377]]

regulatory criteria would be used for any future adjustment of the
shortfin mako shark retention limit, as they are currently for
adjustment of other shark retention limits (for example, Sec.
635.24(a)(2)). In addition, any future change to the shortfin mako
shark retention limit would be implemented only to the extent future
retention is allowable as determined by ICCAT consistent with
Recommendation 21-09. Although an upper per trip retention limit for
shortfin mako sharks is not analyzed in this action, the EA effectively
analyzes the possible effects of any retention limit increases that
fall within (and would effectuate) a future U.S. retention allowance
under the current Recommendation. A future U.S. retention allowance
would occur within the Recommendation's overall limit on total fishing
mortality and the United States' portion of that allowance and would
not have additional impacts outside those analyzed. Furthermore, any
retention allowance for the United States would likely be small since
it must be under 250 mt for all ICCAT parties combined, and the U.S.
portion of total ICCAT shortfin mako shark catch has historically been
low. When NMFS establishes a per-trip retention limit, it will
constrain U.S. catch within that U.S. retention allowance.
Additionally, under a retention limit greater than zero, U.S. shortfin
mako shark retention would continue to be limited by the commercial and
recreational restrictions in the current regulations, along with
additional restrictions on retention of sharks that are alive at
haulback. Recommendation 21-09 only allows for possible future
retention of shortfin mako sharks that are dead at haulback, which
further restricts possibilities for U.S. retention under a possible
future retention allowance. These measures for shortfin mako sharks are
analyzed in the EA for this action under preferred Alternative 2,
considering public comments received on the proposed rule and draft EA
and IRFA, consistent with NEPA requirements.
Comment 10: NMFS received comments, including from the State of
Georgia, opposing implementation of a default retention limit of zero
for shortfin mako sharks in directed shark fisheries or in recreational
fisheries. Commenters stated that the United States has already
effectively reduced shortfin mako shark catch in proportion to the U.S.
contribution to stock-wide catches. The State of Georgia also commented
that the Agency should not implement measures beyond those under
Amendment 11 in directed shark fisheries, and that the HMS regulations
implementing ICCAT recommendations on oceanic whitetip sharks and
hammerhead sharks were not implemented in non-ICCAT, directed shark
fisheries for consistency.
Response: NMFS agrees that the measures implemented under Amendment
11 were effective at meeting the management objectives of that action,
and reduced catch levels of shortfin mako sharks in U.S. fisheries to a
level consistent with ending overfishing of the stock. However, as
described under the No Action Alternative (Alternative 1) in Chapter 4
of the EA, the current measures are not sufficient to meet the purpose
and need for the present action. The purpose of this action is to
implement ICCAT Recommendation 21-09, which prohibits the retention of
North Atlantic shortfin mako sharks. The action is needed because the
current HMS regulations, which allow limited retention of shortfin mako
sharks in commercial and recreational fisheries, are inconsistent with
the requirements of Recommendation 21-09.
NMFS disagrees that shortfin mako shark retention limit should not
apply in directed shark fisheries. As described in Chapter 2 of the EA,
the flexible retention limit 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 would 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. 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, NFMS would apply a flexible
retention limit with a default of zero to these gears.
Comment 11: Several commenters suggested measures that could be
implemented instead of a retention limit of zero in the recreational
fishery. Suggestions included a recreational limit of one shortfin mako
shark per vessel per year; a limit of two sharks per year: one trophy
size and one for personal consumption; banning the retention of
females; banning retention in tournaments; mandatory reporting;
increasing the minimum sizes; and managing shortfin mako sharks like
deer (i.e., through administration of a system that provides fishermen
with a tag or limited number of tags). NMFS received a suggestion to
implement a fee for each shortfin mako shark caught, and a higher fee
if the shark is brought to the vessel dead.
Response: NMFS appreciates the comments suggesting ways to allow
retention of shortfin mako sharks while reducing the overall number of
sharks harvested. However, allowing retention of shortfin mako sharks
would not be consistent with the purpose of this action to implement
ICCAT Recommendation 21-09, which prohibits the retention of North
Atlantic shortfin mako sharks in 2022 and 2023. NMFS is implementing a
flexible shortfin mako shark retention limit with a default limit of
zero for HMS permit holders. The limit of zero remains in place until
NMFS changes it following consideration of regulatory criteria for
inseason adjustment of shark trip limits and consistent with any ICCAT
retention allowances pursuant to Recommendation 21-09. If a retention
limit greater than zero is implemented for the recreational fishery,
the current recreational shortfin mako shark restrictions would again
also apply, including minimum size limits of 71 inches fork length (FL)
(180 cm FL) for male and 83 inches FL (210 cm FL) for female shortfin
mako sharks. Also of note, Recommendation 21-09 limits possible future
retention of shortfin mako sharks to those that are dead at haulback.
NMFS may consider additional management measures if ICCAT restrictions
allow more retention of shortfin mako sharks in the future. For
example, mandatory recreational catch reporting for pelagic sharks,
including shortfin mako, may be considered in an upcoming rulemaking
focused on reporting.
Comment 12: The State of Georgia commented that retention of
oceanic whitetip and scalloped hammerhead sharks should be prohibited
in Atlantic HMS fisheries due to their ESA threatened status.
Response: This comment is outside the scope of this rulemaking.
NMFS

[[Page 39378]]

notes, however, that in 2020, NMFS released two Biological Opinions for
HMS Fisheries under section 7(a)(2) of the ESA. These Biological
Opinions strongly encouraged the inclusion of oceanic whitetip and
scalloped hammerhead sharks as prohibited shark species for
recreational and/or commercial Atlantic HMS fisheries. As a result,
NMFS is currently considering undertaking rulemaking that considers
prohibiting the commercial and recreational retention of scalloped
hammerhead sharks in the Central and Southwest distinct population
segment and of oceanic whitetip sharks throughout their range,
consistent with the 2020 Biological Opinions. That proposed rule is
expected later in 2022. This information is also included in Chapter
4.8 of the EA.
Comment 13: Some comments opposed allowing targeted catch-and-
release recreational fishing for shortfin mako sharks.
Response: NMFS disagrees that targeted catch-and-release
recreational fishing for shortfin mako sharks should not be permitted
when the default retention limit of zero is in place. The purpose of
this action is to implement ICCAT Recommendation 21-09, which prohibits
retention of shortfin mako sharks. Catch-and-release fishing is
consistent with the measures in Recommendation 21-09 and with
implementation of a flexible retention limit with a default of zero.
The retention limit of zero would prevent recreational fishermen from
retaining shortfin mako sharks, which would reduce mortality. Allowing
catch-and-release fishing is consistent with non-retention
requirements. As described in Chapter 4 of the EA, studies have shown
that post-release mortality among recreationally caught shortfin mako
sharks is relatively low. Overall, the recreational measures, including
a default retention limit of zero while allowing catch-and-release
fishing, are anticipated to have a minor, beneficial effect on the
stock. Additionally, by allowing fishermen to catch-and-release
shortfin mako sharks, data required for stock assessments would
continue to be collected. Specifically, NMFS could continue to collect
recreational survey data for shortfin mako sharks, including data on
effort and catch rates. Regarding socioeconomic impacts on the
recreational fishery, as described in Chapter 4 of the EA, prohibiting
catch-and-release fishing for shortfin mako sharks would double the
estimated loss to supporting businesses and industries in recreational
trip expenditures, increasing adverse impacts compared to the preferred
alternative (reduction of $2.4 million in trip expenditures, compared
to reduction of $1.1 million under the preferred alternative).
Comment 14: NMFS received a comment that the proposed rule only
considered commercial fisheries and tournaments. The commenter
requested that the recreational sector outside of tournaments be
included if retention is allowed.
Response: This final rule implements a flexible shortfin mako shark
retention limit with a default limit of zero in commercial and
recreational HMS fisheries. To the extent that any future retention is
allowed, consistent with the inseason trip limit adjustment criteria
and Recommendation 21-09, any increase of the shortfin mako shark
retention limit from the default, or subsequent decrease, could apply
to the commercial fishery, the recreational fishery, or both. If the
retention limit is increased above zero in the recreational fishery,
that change could apply to both tournament and non-tournament fishing.
Individual anglers, in additional to tournaments, are included in this
action overall and in the analyses in the EA.
Comment 15: One commenter requested data on where overharvest of
shortfin mako sharks is occurring and the harvest data for each country
involved.
Response: NMFS acknowledges that countries other than the United
States are responsible for the majority of North Atlantic shortfin mako
shark fishing mortality, hence the need for international coordination
through ICCAT on measures to end overfishing and rebuild the stock.
Reported harvest levels by country are provided in the Task I catch
data tables in the annual SCRS reports (2021 report available at
<a href="https://www.iccat.int/Documents/Meetings/Docs/2021/REPORTS/2021_SCRS_ENG.pdf">https://www.iccat.int/Documents/Meetings/Docs/2021/REPORTS/2021_SCRS_ENG.pdf</a>, shortfin mako shark data table on pages 260-261) and
the ICCAT statistical database website (<a href="https://www.iccat.int/en/accesingdb.html">https://www.iccat.int/en/accesingdb.html</a>).
Comment 16: NMFS received comments that the Magnuson-Stevens Act
requires the Agency to develop a rebuilding plan for shortfin mako
sharks since the stock was determined to be in an overfished condition.
Response: NMFS has an obligation to implement binding ICCAT
recommendations under ATCA, consistent with our obligations under the
ICCAT treaty. The Magnuson-Stevens Act requires NMFS to take measures
to end overfishing and to rebuild the stocks. North Atlantic shortfin
mako shark distribution spans a large portion of the North Atlantic
Ocean basin and many countries besides the United States interact with
the species. Addressing overfishing and an overfished status can only
effectively be accomplished through international efforts where other
countries that have large landings of shortfin mako sharks actively and
equitably participate in mortality reduction and rebuilding plan
discussions. Because of the small U.S. contribution to North Atlantic
shortfin mako shark mortality, domestic reductions of shortfin mako
shark mortality alone would not end overfishing of the entire North
Atlantic stock. Under Amendment 11, NMFS established the foundation for
developing an international rebuilding plan for shortfin mako sharks,
by adopting measures to end overfishing and taking action at the
international level through ICCAT to develop a rebuilding plan. As part
of that measure, Amendment 11 stated that any international management
recommendations adopted by ICCAT to address shortfin mako shark
rebuilding and to reduce mortality would be implemented domestically
consistent with ATCA, including measures implemented under that
amendment. This action implements ICCAT Recommendation 21-09 in an
effective way, addressing overfishing and starting to rebuild the
stock. The measures in Recommendation 21-09 were adopted as part of a
rebuilding program for North Atlantic shortfin mako shark starting in
2022, with the objectives to ``end overfishing immediately and
gradually achieve biomass levels sufficient to support maximum
sustainable yield (MSY) by 2070 with a probability of a range of
between 60 and 70 percent at least.''
Comment 17: One commenter stated that NMFS should specify and
implement additional catch monitoring and reporting measures to collect
accurate and precise shortfin mako shark catch and bycatch information.
Suggested measures include improving recreational data, enhancing
commercial monitoring, and creating a public reporting portal for the
recreational and commercial fisheries.
Response: NMFS agrees that catch monitoring and reporting are
critical components of managing shortfin mako sharks, both at ICCAT and
domestically, and that improvements to recreational data reporting are
necessary at the international level. Toward this end, the United
States advocated for strong reporting requirements to be included in
Recommendation 21-09, including that ICCAT parties present their
statistical methodology used to estimate dead discards and live
releases to the SCRS

[[Page 39379]]

and that the SCRS review and approve or provide feedback on those
methods, and that parties that do not appropriately report their
shortfin mako shark landings and discards would not be able to retain
this species when retention is otherwise allowable. These provisions
were included in the recommendation (see paragraphs 13 and 14).
NMFS is not adopting additional catch monitoring and reporting
requirements in this action. The purpose of this action is to implement
ICCAT Recommendation 21-09. U.S. shortfin mako shark catch monitoring
and reporting meet the requirements of Recommendation 21-09 and other
relevant ICCAT recommendations, as well as domestic requirements.
Therefore, NMFS does not agree that additional measures should be
implemented under this action. Enhanced reporting may be considered in
future rulemakings, for example, mandatory reporting of recreational
catch of all pelagic sharks.
Comment 18: NMFS received a comment that the Agency should require
full-chain traceability for all catches of shortfin mako sharks through
the Seafood Import Monitoring Program and the pending Food and Drug
Administration traceability rules, in order to close a loophole for any
illegal catch of North Atlantic shortfin mako sharks.
Response: This comment is beyond the scope of this rulemaking. The
purpose of this action is to implement ICCAT Recommendation 21-09,
which prohibits the retention of North Atlantic shortfin mako sharks
caught in association with ICCAT fisheries in 2022 and 2023, among
other measures. For more information on the Seafood Import Monitoring
Program, please refer to the website: <a href="https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program">https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program</a>.
Comment 19: NMFS received comments that the Agency recommends a
probability of 70 percent for rebuilding of overfished stocks in
domestic fisheries, which commenters stated was not in line with past
U.S. proposals on shortfin mako shark management at ICCAT, or with the
250-mt mortality threshold in Recommendation 21-09.
Response: Consistent with the 2006 Consolidated HMS FMP, the HMS
management risk policy for most Atlantic shark stocks is to ensure a
70-percent likelihood of success in ending and preventing overfishing,
rebuilding overfished stocks, and maintaining healthy stocks, because
most sharks have low reproductive potential, are long-lived, and have
slow population growth rates. Within the existing risk policy, a range
between 50 and 70 percent likelihood of success has also been
considered depending on the stock and relevant circumstances, and is
determined on a case-by-case basis.
The purpose of this action is to implement ICCAT Recommendation 21-
09 on North Atlantic shortfin mako sharks. The measures in
Recommendation 21-09 were adopted as part of a rebuilding program for
North Atlantic shortfin mako shark starting in 2022 with the objectives
to ``end overfishing immediately and gradually achieve biomass levels
sufficient to support MSY by 2070 with a probability of a range of
between 60 and 70 percent at least.'' These measures are consistent
with ICCAT Recommendation 11-13 on the principles of decision making
for ICCAT conservation and management measures and are also consistent
with the HMS shark management risk policy and Magnuson-Stevens Act
requirements.
Comment 20: One comment suggested that NMFS should consider the
example of barndoor skate management, in which only limited landings
under special permits were allowed before the population was declared
fully rebuilt.
Response: Barndoor skates are managed by the New England Fishery
Management Council under the Northeast Skate Complex FMP (Skate FMP).
The stock was determined to be overfished and possession and landing
were prohibited in 2003 when the Skate FMP was first implemented (68 FR
49693, August 19, 2003). As the stock was rebuilding, segments of the
commercial skate fishery expressed an interest in developing an
experimental fishery where limited landings would be permitted while
collecting fishery and biological data. The study was approved under an
EFP in 2014 (79 FR 26414, May 8, 2014), and the retention prohibition
was ultimately removed in 2018 after the barndoor skate stock was
determined to be rebuilt (83 FR 48985, September 28, 2018). While NMFS
and the New England Fishery Management Council felt that this approach
and timing were appropriate given the stock conditions and specific
fishery circumstances in this case, there are a wide variety of
considerations and information that fishery managers must evaluate when
determining whether to prohibit retention of a species and potentially
permitting retention of prohibited species. There are a number of
critical differences between the barndoor skate fishery and fisheries
that catch shortfin mako sharks; for example, barndoor skate is not
internationally managed, is not a North Atlantic-wide stock, and does
not have a recreational fishery.
The purpose of this action is to implement ICCAT Recommendation 21-
09, including allowing for the possibility of limited future retention
of shortfin mako sharks as determined by ICCAT consistent with this
recommendation. Prohibiting shortfin mako shark retention while also
allowing limited commercial retention under EFPs would not be
consistent with the purpose of this action. Therefore, NMFS does not
agree that barndoor skate fishery management is an appropriate model
for U.S. shortfin mako shark fishery management.
Comment 21: NMFS received comments that the Agency should expand
the electronic monitoring requirement for retention of shortfin mako
sharks that are dead at haulback in commercial fisheries to cover
vessels fishing with bottom longline or gillnet gear, in addition to
vessels fishing with pelagic longline gear.
Response: In this action, the flexible shortfin mako shark
retention limit with a default of zero applies 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 described in the responses to Comments 8 and 10. NMFS did
not, however, implement a requirement that electronic monitoring be
onboard in these fisheries in Amendment 11, because bottom longline and
gillnet fisheries have minimal interactions with this species, and
electronic monitoring was unnecessary to track such interactions
effectively. The details of the bottom longline and gillnet
requirements under Amendment 11 were referenced in this action in order
to better explain the scope of the gears included under changes to the
shortfin mako shark retention limit. However, NMFS did not propose or
consider any changes to the electronic monitoring requirements in this
action. The purpose of the action is to implement ICCAT Recommendation
21-09, which does not require any regulatory changes in the United
States regarding electronic monitoring. Therefore, this comment is
beyond the scope of this rulemaking.
Comment 22: NMFS received comments encouraging the Agency to
respond to the 2021 petition from Defenders of Wildlife to list
shortfin mako sharks as a threatened or endangered species under the
ESA.
Response: NMFS is actively working on the 12-month finding to
consider

[[Page 39380]]

listing shortfin mako sharks under the ESA and plans to release the
determination soon. Because this comment refers to listing species
under the ESA, this is beyond the scope of this rulemaking.
Comment 23: NMFS received comments that the United States should
seek to extend no retention of shortfin mako sharks at ICCAT, rather
than adhering to possible future retention according to Recommendation
21-09. Another comment suggested that the United States should submit a
proposal at ICCAT to limit total mortality of South Atlantic shortfin
mako sharks, including the same reporting requirements as in
Recommendation 21-09.
Response: These comments are beyond the scope of this rulemaking.
To the extent that these comments are suggesting development of U.S.
proposals at ICCAT, U.S. proposals and priorities for ICCAT generally
are discussed in the context of the U.S. ICCAT Advisory Committee
meetings, which typically have at least one session open to the public.
Comment 24: NMFS received a comment calling for banning longline
gear and all shark fisheries.
Response: National Standard 1 of the Magnuson-Stevens Act requires
NMFS to prevent overfishing while achieving, on a continuing basis,
optimum yield from each fishery for the U.S. fishing industry. NMFS
continually monitors the federal shark fisheries and, based on the best
available scientific information, takes action needed to conserve and
manage the fisheries. The purpose of this action is to implement ICCAT
Recommendation 21-09 regarding North Atlantic shortfin mako sharks, as
necessary and appropriate pursuant to ATCA, and to achieve domestic
management objectives under the Magnuson-Stevens Act. Recommendation
21-09 prohibits retention of North Atlantic shortfin mako sharks caught
in association with ICCAT fisheries in 2022 and 2023, among other
measures. The measures in Recommendation 21-09 were adopted as part of
a rebuilding program for North Atlantic shortfin mako shark starting in
2022, with the objectives to ``end overfishing immediately and
gradually achieve biomass levels sufficient to support maximum
sustainable yield (MSY) by 2070 with a probability of a range of
between 60 and 70 percent at least.'' Banning longline gear and shark
fisheries is beyond the scope of this action.

Classification

NMFS is issuing this rule pursuant to section 305(d) of the
Magnuson-Stevens Act. The NMFS Assistant Administrator has determined
that the final rule is consistent with the 2006 Consolidated HMS FMP
and its amendments, other provisions of the Magnuson-Stevens Act, ATCA,
and other applicable law.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date and to make the rule effective three days after
publication in the Federal Register. Further delaying the effectiveness
of these regulations could undermine the purpose of this action to
implement ICCAT Recommendation 21-09, which was adopted in November
2021 and enters into force June 17, 2022. If effectiveness is delayed,
retention of shortfin mako sharks will continue to be allowed in
Atlantic HMS fisheries under the current regulations well past the
entry into force date of, and contrary to the requirements of, this
binding international measure. For all of these reasons, there is good
cause to waive the 30-day delay in the date of effectiveness.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
A final regulatory flexibility analysis (FRFA) was prepared for
this rule. The FRFA incorporates the initial regulatory flexibility
analysis (IRFA), a summary of the significant issues raised by the
public comments in response to the IRFA, NMFS' responses to those
comments, and a summary of the analyses completed to support the
action. A copy of this analysis is available from NMFS (see ADDRESSES).
A summary is provided below.
Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires
agencies to state the need for, and objective of, the final action.
This action is needed because the current HMS regulations allow
retention of shortfin mako sharks in certain limited circumstances in
HMS fisheries, which is inconsistent with the 2021 ICCAT
recommendation. Under ATCA, NMFS is required to promulgate regulations
as necessary and appropriate to implement binding ICCAT measures. This
action is also needed in the non-ICCAT fisheries to provide consistency
for the regulated community and for enforcement purposes, making the
management measures more effective in addressing overfishing and
starting to rebuild the stock.
The objective of this action is to implement ICCAT Recommendation
21-09 regarding North Atlantic shortfin mako sharks, as necessary and
appropriate pursuant to ATCA, and to achieve domestic management
objectives under the Magnuson-Stevens Act. Recommendation 21-09
prohibits retention of North Atlantic shortfin mako sharks caught in
association with ICCAT fisheries in 2022 and 2023, among other
measures. The measures in Recommendation 21-09 were adopted as part of
a rebuilding program for North Atlantic shortfin mako shark starting in
2022, with the objectives to ``end overfishing immediately and
gradually achieve biomass levels sufficient to support maximum
sustainable yield (MSY) by 2070 with a probability of a range of
between 60 and 70 percent at least.'' See Chapter 1 of the EA for a
full description of the need for and objectives of the final rule.
Section 604(a)(2) of the RFA requires a summary of significant
issues raised by the public in response to the IRFA, a summary of the
agency's assessment of such issues, and a statement of any changes made
as a result of the comments. NMFS received 22 written comments on the
proposed rule and Draft EA during the public comment period. A summary
of those comments and the agency's responses are described above. The
comments did not refer to the IRFA or the economic impacts of the rule.
One commenter (see Comment 3) noted that the rule would not have
substantial economic impacts on commercial or for-hire fisheries or HMS
tournaments.
Section 604(a)(3) of the RFA requires the response of the agency to
any comments filed by the Chief Counsel for Advocacy of the Small
Business Administration (SBA) in response to the proposed rule, and a
detailed statement of any change made to the proposed rule in the final
rule as a result of the SBA comments. NMFS did not receive comments
from the Chief Counsel for Advocacy of the SBA in response to the
proposed rule.
Section 604(a)(4) of the RFA requires agencies to provide
descriptions of, and where feasible, 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 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

[[Page 39381]]

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
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 final 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 final rule would apply to the 213 Shark Directed limited access
permit (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 the RFA, nor would there be disproportionate economic
impacts between large and small entities.
Section 604(a)(5) of the RFA requires agencies to describe any new
reporting, record-keeping, and other compliance requirements. This
action does not contain any new collection of information, reporting,
or record-keeping requirements.
Section 604(a)(6) of the RFA requires agencies to describe the
steps the agency has taken to minimize the significant economic impact
on small entities consistent with the stated objectives of applicable
statutes, including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule considered
by the agency which affect the impact on small entities was rejected.
As described below, NMFS analyzed several different alternatives in
this final rulemaking and provides rationales for identifying the
preferred alternatives to achieve the desired objectives. The FRFA
assumes that each vessel will have similar catch and gross revenues to
show the relative impact of the final 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 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 Shark Directed or Shark Incidental 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

[[Page 39382]]

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 add shortfin mako sharks to the prohibited
sharks species group 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 (list of prohibited
sharks), 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.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a web page that also serves as small entity
compliance guide (the guide) was prepared. This final rule and the
guide are available on the HMS Management Division website 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> or by contacting Carrie Soltanoff at
<a href="/cdn-cgi/l/email-protection#eb888a9999828ec59884879f8a85848d8dab85848a8ac58c849d">[email&#160;protected]</a> or 301-427-8503.

List of Subjects in 50 CFR Part 635

Fisheries, Fishing, Fishing vessels, Foreign relations, Imports,
Penalties, Reporting and recordkeeping requirements, Statistics,
Treaties.

Dated: June 27, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 635 is amended
as follows:

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 paragraph (a)(4) introductory text;

[[Page 39383]]

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 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 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. 2022-14116 Filed 6-30-22; 8:45 am]
BILLING CODE 3510-22-P

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