[Federal Register Volume 83, Number 42 (Friday, March 2, 2018)]
[Rules and Regulations]
[Pages 8946-8950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04262]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 180104009-8201-01]
RIN 0648-BH49


Emergency Measures To Address Overfishing of Atlantic Shortfin 
Mako Shark

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule, emergency action; request for comments.

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SUMMARY: NMFS is taking emergency action through this interim final 
rule, in response to a new stock assessment for North Atlantic shortfin 
mako sharks to implement measures required by International Commission 
for the Conservation of Atlantic Tunas (ICCAT)

[[Page 8947]]

Recommendation 17-08. Based on the results of the stock assessment, on 
December 13, 2017, NMFS determined the North Atlantic shortfin mako 
shark stock to be overfished, with overfishing occurring. The emergency 
management measures will reduce shortfin mako shark landings in 
commercial and recreational shark fisheries, with retention allowed 
only in certain limited circumstances. The emergency management 
measures are expected to meet the United States' obligations in 
relation to ending overfishing, but are not expected to result in 
significant economic impacts.

DATES: Effective March 2, 2018 through August 29, 2018. Comments must 
be received on May 7, 2018. A public hearing will be held at the Highly 
Migratory Species (HMS) Advisory Panel meeting on March 7, 2018, from 
11 a.m.-12:15 p.m., EST. For specific location and webinar information, 
please see the SUPPLEMENTARY INFORMATION section of this document and 
the HMS AP meeting website at: https://www.fisheries.noaa.gov/event/march-2018-hms-advisory-panel-meeting.

ADDRESSES: Copies of the Environmental Assessment and other supporting 
documents for this emergency action are available from the HMS 
Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.
    Written comments, identified by NOAA-NMFS-2018-0010, may be 
submitted to the HMS Management Division by either of the following 
methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0010, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to NMFS, Highly Migratory 
Species Management Division, 1315 East-West Highway, Silver Spring, MD 
20910. Mark the outside of the envelope ``Comments on Atlantic Shortfin 
Mako Emergency Rule.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and generally will be posted for public viewing on 
www.regulations.gov 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: Tobey Curtis at 978-281-9273 or Guy 
DuBeck or Lauren Latchford at 301-427-8503.

SUPPLEMENTARY INFORMATION:

Background

    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 fishermen from numerous countries. These sharks 
are a small but valued component of U.S. recreational and commercial 
shark fisheries, which are managed under the 2006 Consolidated Atlantic 
HMS Fishery Management Plan and its amendments. In recent years, U.S. 
catch represents only approximately 11 percent of the species' total 
catch in the North Atlantic by all reporting countries. International 
measures are, therefore, critical to the species' effective 
conservation and management.
    In August 2017, ICCAT's Standing Committee on Research and 
Statistics (SCRS) conducted a new benchmark stock assessment on the 
North Atlantic shortfin mako stock. At its November 2017 annual 
meeting, ICCAT accepted this stock assessment and determined the stock 
to be overfished, with overfishing occurring. On December 13, 2017, 
based on this assessment, NMFS issued a status determination finding 
the stock to be overfished and experiencing overfishing using domestic 
criteria. The assessment specifically indicated that biomass 
(B2015) is substantially less than the biomass at maximum 
sustainable yield (BMSY) for eight of the nine models used 
for the assessment (B2015/BMSY = 0.57-0.85). In 
the ninth model, spawning stock fecundity (SSF) was less than 
SSFMSY (SSF2015/SSFMSY = 0.95). 
Additionally, the assessment indicated that fishing mortality 
(F2015) was greater than FMSY (1.93-4.38), with a 
combined 90-percent probability from all models that the population is 
overfished, with overfishing occurring.
    The 2017 assessment estimated that total North Atlantic shortfin 
mako catches across all ICCAT parties are currently between 3,600 and 
4,750 mt per year, and that total catches would have to be at 1,000 mt 
or below (72-79 percent reductions) to prevent further population 
declines and that catches of 500 t or less currently are expected to 
stop overfishing and begin to rebuild the stock. The projections 
indicate that a total allowable catch of 0 mt would produce a greater 
than 50 percent probability of rebuilding the stock by the year 2040, 
which is approximately equal to one mean generation time. Research 
indicates that post-release survival rates of Atlantic shortfin mako 
sharks are high (70 percent); however, the assessment could not 
determine if requiring live releases alone would reduce landings 
sufficiently to end overfishing and rebuild the stock.
    Based on this information, ICCAT adopted new management measures 
for Atlantic shortfin mako (Recommendation 17-08), which the United 
States must implement as necessary and appropriate under the Atlantic 
Tunas Convention Act. These measures largely focus on maximizing live 
releases of Atlantic shortfin mako sharks, allowing retention only in 
certain limited circumstances, increasing minimum size limits, and 
improving data collection in ICCAT fisheries. In November 2018, ICCAT 
will review the catches from the first six months of 2018 and decide 
whether these measures should be modified. In 2019, the SCRS will 
evaluate the effectiveness of these measures in ending overfishing and 
beginning to rebuild the stock. SCRS will also provide rebuilding 
information that reflects rebuilding timeframes of at least two mean 
generation times. Also in 2019, ICCAT will establish a rebuilding plan 
that will have a high probability of avoiding overfishing and 
rebuilding the stock to BMSY within a timeframe that takes 
into account the biology of the stock.

Emergency Management Measures

    NMFS is implementing emergency measures in HMS recreational and 
commercial fisheries consistent with Recommendation 17-08 to address 
overfishing and to provide meaningful information reflective of the new 
measures for the six-month reporting requirement in the Recommendation. 
Management measures in the emergency rule are as follows:
     Commercial fishermen on vessels deploying pelagic longline 
gear, which are required to have a functional electronic monitoring 
system on board under current regulations, must release all live 
shortfin mako sharks with a minimum of harm, while giving due 
consideration to the safety of crew members. Commercial fishermen using 
pelagic longline gear can only retain a shortfin mako shark if it is 
dead at haulback.

[[Page 8948]]

     Commercial fishermen using gear other than pelagic 
longline commercial gear (e.g., bottom longline, gillnet, handgear, 
etc.) must release all shortfin mako sharks, whether they are dead or 
alive.
     Recreational fishermen (fishermen with HMS Angling or 
Charter/Headboat permits, and fishermen with Atlantic Tunas General 
category and Swordfish General Commercial permits when participating in 
a registered HMS tournament) must release any shortfin mako sharks 
smaller than the minimum size of 83 inches (210 cm) fork length (FL). 
This minimum size is an increase from the current minimum size of 54 
inches FL. This measure is more conservative than what was specifically 
recommended in Recommendation 17-08, which suggested separate minimum 
size limits for males (180 cm FL) and females (210 cm FL). NMFS is 
implementing a single minimum size limit of 83 inches (210 cm) FL due 
to recent analyses conducted by NMFS (but were not available during the 
ICCAT meeting) that indicate the lower minimum size limit for males 
would not sufficiently reduce total shortfin mako shark landings to 
levels that the stock assessment estimates are required to end 
overfishing (refer to the EA; see ADDRESSES). Furthermore, confirming 
the sex of a large and potentially active shortfin mako shark prior to 
its landing can be challenging for fishermen and may have safety 
implications. Therefore, a single minimum size limit for the species is 
simpler to implement and enforce, and is more consistent with the 
objectives of this action.
    NMFS is soliciting public comment on this interim final rule and 
will take into consideration any comments received and any testimony at 
the public hearing, as it evaluates whether any modifications to the 
emergency measures are needed. These emergency measures will be 
effective until August 29, 2018, with a possible extension of up to an 
additional 186 days. These measures will be replaced by long-term 
measures, which will be considered through notice and comment 
rulemaking for an upcoming fishery management plan amendment, 
accompanied by an Environmental Impact Statement (EIS). The Notice of 
Intent to Prepare an Environmental Impact Statement for that fishery 
management plan amendment will publish in the same issue of the Federal 
Register as this interim final rule.
    These emergency measures are expected to reduce shortfin mako 
landings in the HMS commercial fisheries and the ex-vessel revenues 
from those landings by approximately 75 percent. Thus, the commercial 
fisheries could cumulatively experience revenue losses of approximately 
$281,000 per year, 97 percent of which would be lost by the pelagic 
longline fishery. Lost revenues would have greater social and economic 
impacts on fishing communities with higher shortfin mako shark 
landings, including Wanchese, NC, Fairhaven/New Bedford, MA, and 
Barnegat Light, NJ. Shortfin mako sharks are a minor source of economic 
revenue to the overall HMS commercial fishery, but may be an important 
source of seasonal revenue to some individual fishermen. The 
socioeconomic impacts associated with these reductions in revenue are 
not expected be significant overall, however, as shortfin mako sharks 
comprise less than 1 percent of total ex-vessel revenues in the pelagic 
longline fishery on average, and an even smaller fraction of total 
fisheries revenues in the potentially-affected fishing communities. 
Therefore, socioeconomic impacts on the commercial fishery are expected 
to be slightly negative.
    These emergency measures would also reduce recreational landings of 
shortfin mako sharks by approximately 83 percent. However, as catch-
and-release practices would still be permitted, a significant reduction 
in recreational fishing or charter/headboat activity is not expected. 
However, the reduced opportunities to catch and land a shortfin mako 
shark of legal size may slightly reduce demand and revenues for 
charters and tournaments that target this species. Approximately five 
percent of charter vessels and seven percent of headboat vessels in the 
U.S. Atlantic target pelagic sharks, including shortfin mako, with the 
majority of these businesses located off the northeast United States. 
According to NMFS Northeast Fisheries Science Center tournament data, 
the larger minimum size limit may not significantly limit the ability 
of tournaments to land shortfin mako sharks, because most of the 
largest shortfin mako sharks landed at tournaments in recent years have 
been above the 83 inches FL minimum size limit. However, it is likely 
that fewer vessels will be able to catch a shortfin mako shark of legal 
size, within or outside of tournaments. Therefore, the socioeconomic 
impacts associated with recreational shark fishing effort (fuel, bait, 
fishing supply expenditures, tournament participation, etc.) are 
expected to be slightly negative.

Public Hearing

    Comments on this interim final rule may be submitted via http://www.regulations.gov or mail, and comments may also be submitted at the 
public hearing. NMFS solicits comments on this interim final rule by 
May 7, 2018. During the comment period, NMFS will hold one public 
hearing for this interim final rule.

                        Table 1--Date, Time, and Location of the Upcoming Public Hearing
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                                                                                             Location contact
                Venue                         Date/time            Meeting locations           information
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Public Hearing.......................  March 7, 2018, 11 a.m.-  Silver Spring, MD......  HMS AP Meeting,
                                        12:15 p.m.                                        Sheraton Silver
                                                                                          Spring, 8777 Georgia
                                                                                          Avenue, Silver Spring,
                                                                                          MD 20910.
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Classification

    This emergency interim final rule is promulgated pursuant to 
section 305(c) of the Magnuson-Stevens Act, and NMFS has determined 
that it is consistent with that Act and other applicable laws. NMFS 
policy guidelines for the use of emergency rules (August 21, 1997; 62 
FR 44421) specify the following three criteria that define what an 
emergency situation is: (1) The emergency results from recent, 
unforeseen events or recently discovered circumstances; (2) the 
emergency presents serious conservation or management problems in the 
fishery; and (3) if the emergency action is being implemented without 
prior public comment, the emergency can be addressed through emergency 
regulations for which the immediate benefits outweigh the value of 
advance notice, public comment, and deliberative consideration of the 
impacts on participants to the same extent as would be expected under 
the normal rulemaking process.
    This action meets the NMFS guidelines and criteria for emergency

[[Page 8949]]

rulemaking. The action is needed to address recently discovered 
circumstances including the 2017 ICCAT stock assessment and 
Recommendation 17-08 for North Atlantic shortfin mako shark in November 
and NMFS's determination that the stock is overfished and overfishing 
is occurring in December (Criteria 1). The stock assessment conclusions 
differ significantly and unexpectedly from the most recent previous 
assessments, which had indicated that the stock was not overfished or 
experiencing overfishing. The new assessment indicates that dramatic 
immediate reductions in fishing mortality are needed to end overfishing 
of this stock, and this action is needed to address this serious 
conservation problem (Criteria 2). Finally, the immediate benefits to 
the shortfin mako shark resource and our need to meet obligations under 
the Magnuson-Stevens Act and Atlantic Tunas Convention Act outweigh the 
value of the advance notice and public comments provided under the 
normal rulemaking process (Criteria 3). Without an emergency rule to 
implement these measures, the reported U.S. catches at the end of the 
ICCAT six-month reporting period (ending at the end of June 2018) would 
reflect catches under the existing management practices and thus not 
reflect whether the new measures were effective to address overfishing. 
Any resulting action based on such information could disadvantage U.S. 
fishermen in the long-term.
    Pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the 
Assistant Administrator for Fisheries finds good cause to waive the 
otherwise applicable requirements for both notice-and-comment 
rulemaking and a 30-day delay in effectiveness for this interim final, 
emergency rule implementing North Atlantic shortfin mako shark 
management measures. The recent unforeseen circumstances described 
above, and need for expedient action, make it impracticable to provide 
prior notice-and-comment opportunity and a 30-day delay. The new stock 
assessment for Atlantic shortfin mako sharks was completed in August 
2017 and accepted in November by ICCAT and December 2017 by NMFS, 
revealing that the North Atlantic shortfin mako shark stock is 
overfished, with overfishing occurring. ICCAT developed Recommendation 
17-08 at its annual meeting in November 2017, which the United States 
must implement as necessary and appropriate under the Atlantic Tunas 
Convention Act. It would be potentially harmful to the long-term 
sustainability of the resource to implement these measures through 
notice-and-comment rulemaking because immediate reductions in fishing 
mortality are needed to address overfishing and begin to rebuild the 
stock and data will be re-evaluated as soon as November 2018 to 
determine whether additional measures are needed. Unless the new 
measures are in place, they cannot be properly evaluated for 
effectiveness in the fall and ICCAT will not be able to determine 
whether additional measures are immediately needed. Additionally, 
affected fishing vessel owners should not require time to adjust to 
these regulations, as the regulations do not constitute substantive 
operational changes, such as changes to equipment that might require 
time for purchasing and installation, or changes to practices that 
might require special training. Here, the rule only affects the landing 
of a particular species, and thus vessel owners should be able to 
understand and implement the changes immediately. Furthermore, the 
agency requested voluntary implementation of these measures earlier 
this year, so fishermen have already been notified of these management 
changes.
    For the reasons outlined, NMFS finds it impracticable and contrary 
to the public interest to provide prior opportunity to comment on the 
Atlantic shortfin mako shark emergency measures. As noted above, NMFS 
is soliciting public comment on this interim final rule and will take 
into consideration any comments received and any testimony at the 
public hearing, as it evaluates whether any modifications to the 
emergency measures are needed. In addition, there will be multiple 
opportunities for public participation and notice-and-comment 
rulemaking as NMFS develops a long-term fishery management amendment to 
rebuild North Atlantic shortfin mako sharks.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from OMB review.
    This rule is exempt from the otherwise applicable requirement of 
the Regulatory Flexibility Act to prepare a regulatory flexibility 
analysis because the rule is issued without opportunity for prior 
public comment.

List of Subjects in 50 CFR Part 635

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

    Dated: February 27, 2018.
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 suspend paragraph (e)(2) and add paragraphs (e)(6) 
and (7) to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (e) * * *
    (6) All sharks, except as otherwise specified in this subsection 
below, landed under the recreational retention limits specified at 
Sec.  635.22(c)(2) must be at least 54 inches (137 cm) FL.
    (7) All North Atlantic shortfin mako sharks landed under the 
recreational retention limits specified at Sec.  635.22(c)(2) must be 
at least 83 inches (210 cm) fork length.
* * * * *

0
3. In Sec.  635.21, add paragraphs (a)(4) and (c)(1)(iv) to read as 
follows:


Sec.  635.21  Gear operation and deployment restrictions.

    (a) * * *
    (4) Any person issued a commercial shark permit must release all 
shortfin mako sharks, alive or dead, caught on any gear other than 
pelagic longline gear.
* * * * *
    (c) * * *
    (1) * * *
    (iv) Has pelagic longline gear on board, persons aboard that vessel 
are required to release unharmed, to the extent practicable, any 
shortfin mako shark that is alive at the time of haulback. 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 accordance with Sec.  635.9.
* * * * *

0
4. In Sec.  635.24, suspend paragraphs (a)(4)(i) and (iii), and add 
paragraphs (a)(4)(v) and (vi) to read as follows:


Sec.  635.24  Commercial retention limits for sharks, swordfish, and 
BAYS tunas.

* * * * *
    (a) * * *

[[Page 8950]]

    (4) * * *
    (v) A person who owns or operates a vessel that has been issued a 
directed shark LAP may retain, possess, or land pelagic sharks if the 
pelagic shark fishery is open per Sec. Sec.  635.27 and 635.28. 
Shortfin mako sharks may only be retained by persons using pelagic 
longline gear, and only if each shark is dead at the time of haulback 
per Sec.  635.21(c)(1).
    (vi) 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 by persons using pelagic 
longline gear, and only if each shark is dead at the time of haulback 
per Sec.  635.21(c)(1).
* * * * *

0
5. In Sec.  635.71, add paragraphs (d)(27) through (29) to read as 
follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (27) Land a shortfin mako shark that was caught with gear other 
than pelagic longline as specified at Sec.  635.21(a).
    (28) Retain, land, or possess a shortfin mako shark that was caught 
with pelagic longline gear and was alive at haulback as specified at 
Sec.  635.21(c)(1).
    (29) As specified at Sec.  635.21(c)(1), retain, land, or possess a 
shortfin mako shark that was caught with pelagic longline gear when the 
electronic monitoring system was not installed and functioning in 
accordance with the requirements at Sec.  635.9.
* * * * *
[FR Doc. 2018-04262 Filed 3-1-18; 8:45 am]
 BILLING CODE 3510-22-P