[Federal Register Volume 84, Number 35 (Thursday, February 21, 2019)]
[Rules and Regulations]
[Pages 5358-5377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02946]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 180212159-9102-02]
RIN 0648-BH75


Atlantic Highly Migratory Species; Shortfin Mako Shark Management 
Measures; Final Amendment 11

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS is amending the 2006 Consolidated Atlantic Highly 
Migratory Species (HMS) Fishery Management Plan (FMP) based on the 
results of the 2017 stock assessment and a subsequent binding 
recommendation by the International Commission for the Conservation of 
Atlantic Tunas (ICCAT) for North Atlantic shortfin mako sharks. The 
North Atlantic shortfin mako shark stock is overfished and is 
experiencing overfishing. Consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic 
Tunas Convention Act (ATCA), NMFS is implementing management measures 
that will reduce fishing mortality on shortfin mako sharks and 
establish the foundation for rebuilding the shortfin mako shark 
population consistent with legal requirements. The final measures could 
affect U.S. commercial and recreational fishermen who target and 
harvest shortfin mako sharks in the Atlantic Ocean, including the Gulf 
of Mexico and Caribbean Sea, by increasing live releases and reducing 
landings. NMFS is also clarifying the definition of fork length (FL) in 
the definitions section of the HMS regulations.

DATES: This final rule is effective on March 3, 2019.

ADDRESSES: Copies of the Final Amendment 11 to the 2006 Consolidated 
HMS FMP, including the Final Environmental Impact Statement (FEIS) 
containing a list of references used in this document, the dusky shark 
stock assessments, and other documents relevant to this rule are 
available from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

FOR FURTHER INFORMATION CONTACT: Gu[yacute] DuBeck or Karyl Brewster-
Geisz at (301) 427-8503.

SUPPLEMENTARY INFORMATION:

Background

    The North Atlantic shortfin mako stock is managed primarily under 
the authority of the Magnuson-Stevens Act and also under ATCA. The 2006 
Consolidated HMS FMP and its amendments are implemented by regulations 
at 50 CFR part 635. A brief summary of the background of this final 
rule is provided below. Additional information regarding Atlantic shark 
management can be found in the FEIS accompanying this final rule for 
Amendment 11, the 2006 Consolidated HMS FMP and its amendments, the 
annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and 
online at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.
    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 numerous countries. The stock is predominantly 
caught offshore in association with fisheries that primarily target 
tunas and tuna-like species. While these sharks are a valued component 
of U.S. recreational and commercial fisheries, U.S. catch represents 
only approximately 9 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.
    Based on a 2017 ICCAT assessment, on December 13, 2017, NMFS issued 
a status determination finding the stock to be overfished and 
experiencing overfishing, applying domestic criteria. The 2017 
assessment estimated that total North Atlantic shortfin mako catches 
across all ICCAT parties are currently between 3,600 and 4,750 metric 
tons (mt) per year. The assessment further indicated that such total 
catches would have to be at or below 1,000 mt (72-79 percent 
reductions) to prevent further population declines, and total catches 
of 500 mt or less would be expected to stop overfishing and begin 
rebuilding the stock.
    Based on this information and given that the stock is primarily 
caught in association with ICCAT fisheries, ICCAT at its November 2017 
meeting

[[Page 5359]]

adopted management measures for Atlantic shortfin mako in 
Recommendation 17-08. The measures largely focused on maximizing live 
releases of Atlantic shortfin mako sharks, allowing retention only in 
certain limited circumstances, increasing minimum size limits for 
retention, and improving data collection in ICCAT fisheries. ICCAT 
stated that the measures in the Recommendation were ``expected to 
prevent the population from decreasing further, stop overfishing and 
begin to rebuild the stock.''
    On March 2, 2018, NMFS implemented an interim final rule using 
emergency authority under the Magnuson-Stevens Act, 16 U.S.C. 1855(c), 
to quickly implement measures in the HMS recreational and commercial 
fisheries consistent with Recommendation 17-08. The emergency measures 
were initially effective for 180 days, and on August 22, 2018, they 
were extended to March 3, 2019 (83 FR 42452). This final rule is 
intended to replace these emergency measures with long-term measures.
    A Notice of Intent (NOI) to prepare an EIS for Amendment 11 of the 
Consolidated HMS FMP was published in the Federal Register on March 5, 
2018 (83 FR 9255) and provided notice of the availability of an Issues 
and Options document for scoping. Based on the alternatives presented 
and commented on during scoping, NMFS published a proposed rule for 
Draft Amendment 11 on July 27, 2018 (83 FR 35590), and the 
Environmental Protection Agency (EPA) published the notice of 
availability of the Draft Environmental Impact Statement (DEIS) on July 
27, 2018 (83 FR 35637). The details of this rulemaking can be found in 
the proposed rule and are not repeated here.
    During the comment period on the proposed rule and DEIS, which 
lasted for 73 days, NMFS conducted six public hearings (Texas, Florida, 
North Carolina, New Jersey, and Massachusetts) and a public webinar. In 
addition, NMFS presented Draft Amendment 11 to the Atlantic HMS 
Advisory Panel, four Atlantic Regional Fishery Management Councils (the 
New England, Mid-Atlantic, South Atlantic, and the Gulf of Mexico 
Fishery Management Councils), and the Atlantic States Marine Fisheries 
Commission. The comment period ended on October 8, 2018. The comments 
received on Draft Amendment 11 and its proposed rule, and responses to 
those comments, are summarized below in the section labeled ``Response 
to Comments.''
    This final rule implements the measures preferred and analyzed in 
the FEIS for Amendment 11 to the 2006 Consolidated HMS FMP in order to 
address and establish a foundation for rebuilding the North Atlantic 
shortfin mako shark stock, which ICCAT will adopt in 2019 after 
obtaining additional scientific information, as set out in 
Recommendation 17-08. It also includes a clarification to the 
regulatory definition of ``FL (fork length),'' as proposed and 
discussed in the DEIS and FEIS. The FEIS analyzed the direct, indirect, 
and cumulative impacts on the human environment as a result of the 
preferred management measures. The FEIS, including the preferred 
management measures, was made available on December 21, 2018 (83 FR 
65670). On February 15, 2019, the Assistant Administrator for NOAA 
signed a Record of Decision (ROD) adopting these measures as Final 
Amendment 11 to the 2006 Consolidated HMS FMP. A copy of the FEIS, 
including Final Amendment 11 to the 2006 Consolidated HMS FMP, is 
available from the HMS Management Division (see ADDRESSES). In the 
FEIS, NMFS divided the alternatives into the following four broad 
categories for organizational clarity and to facilitate effective 
review: Commercial fishery, recreational fishery, monitoring, and 
rebuilding. NMFS fully considered 29 alternatives within these 
categories and is implementing five measures, one in the commercial 
fishery, two in the recreational fishery (each regarding a different 
regulation type), one regarding monitoring, and one regarding 
rebuilding the stock, to meet the objectives of the rule and achieve at 
least a 75 percent reduction in U.S. shortfin mako shark landings 
consistent with the suggested level of reduction recommended in the 
stock assessment. The stock assessment recommends this level of 
reduction throughout the stock's range, and all ICCAT parties fishing 
on the stock are committed to take the specified measures to achieve 
the needed reductions. NMFS' detailed analyses of the alternatives are 
provided in the FEIS for Draft Amendment 11 (see ADDRESSES for how to 
get a copy of the FEIS) and a summary is provided in the FRFA below.
    In developing the final measures, NMFS considered the commercial 
retention restrictions and the 83-inch FL recreational minimum size 
limit temporarily put in place through the emergency interim final 
rule, public comments received on that rule, other conservation and 
management measures that have been implemented in the HMS fisheries 
since 2008 that have affected shark fisheries or shark bycatch in other 
fisheries, and public comments received on the proposed rule and DEIS, 
including comments provided at the September 2018 HMS Advisory Panel 
meeting. In response to public comment on the proposed rule and the 
DEIS, NMFS made three changes from the proposed rule in the final rule. 
The first change adopts a new commercial measure that is a modified 
version of the previously preferred measure. A second change adopts a 
different recreational size limit measure that was not preferred in the 
proposed rule. A third change clarifies the application of retention 
restrictions for the few permit holders who hold a commercial shark 
permit and a permit that also allows recreational landings of sharks. 
All other proposed conservation measures, as well as the proposed 
clarification of the definition of ``fork length,'' did not change 
between the proposed and final rules. Measures that are different from 
the proposed rule, or measures that were proposed but not implemented, 
are described in detail in the section titles, ``Changes from the 
Proposed Rule.''

Response to Comments

    NMFS received a total of 30 individual written comments on the 
proposed rule from fishermen, dealers, and other interested parties 
along with State of North Carolina, Commonwealth of Massachusetts, the 
Mid-Atlantic and New England Fishery Management Councils, several shark 
conservation or other environmental groups, including Oceana, and 
several commercial and recreational groups. Oral comments were received 
from the South Atlantic Fishery Management Council. All written 
comments can be found at http://www.regulations.gov/ by searching for 
RIN 0648-BH75. All of the comments received are summarized below.
    Comment 1: NMFS received multiple comments expressing support for 
Amendment 11 management measures as well as comments opposing 
implementation of ICCAT shortfin mako shark recommendations. Commenters 
in support of Amendment 11 wanted management measures to prevent 
overfishing of shortfin mako sharks by placing limits and restrictions 
on fishing that results in mortality of shortfin mako sharks. They also 
stressed the need for international cooperation if shortfin mako shark 
measures are to be effective and the need for all countries fishing on 
the stock to implement comparable regulations as required by ICCAT. In 
addition, some commenters cited the importance of shortfin mako sharks 
to

[[Page 5360]]

the health of ocean ecosystems. One commenter opposed any management 
measures for shortfin mako sharks, citing their understanding of 
previous ICCAT stock assessment issues, including the underlying 
uncertainties with other shark stock assessments such as the porbeagle 
shark assessment. Specifically, this commenter stated that ICCAT had 
recommended similar regulations for porbeagle sharks after a stock 
assessment, and later changed the results after the United States 
supplied additional information.
    Response: NMFS agrees that shortfin mako sharks play an important 
role in maintaining ocean ecosystems, and notes that there are 
statutory obligations to effectively manage shark fisheries, prevent 
overfishing, and achieve long-term sustainability of the stock. NMFS 
has determined that the management measures in this rule will address 
overfishing and begin the process of rebuilding the North Atlantic 
shortfin mako shark stock as required by law, understanding that any 
effective rebuilding plan or measures to end overfishing depend on 
effective international measures, given that the United States 
contributes to only a portion of the fishing mortality on the stock.
    NMFS believes that the 2017 ICCAT stock assessment for shortfin 
mako sharks is not appropriately compared to the previous stock 
assessment for porbeagle sharks and generally does not agree with the 
commenter's implication that the ICCAT assessments are routinely 
flawed. The 2017 ICCAT stock assessment for shortfin mako sharks 
included many improvements in the data and modeling compared to 
previous shark stock assessments, including past porbeagle and shortfin 
mako shark assessments. NMFS has determined that the 2017 SCRS shortfin 
mako shark stock assessment is the best scientific information 
available for shortfin mako sharks, and NMFS is using the results, as 
appropriate, as required under National Standard 2 of the Magnuson-
Stevens Act.
    Comment 2: NMFS received comments about the stock assessment 
methodology and results. A commenter had concerns that the methodology 
applied in evaluating the results of different stock assessment models 
used in the 2017 shortfin mako stock assessment introduced an 
inappropriate negative bias in the overall assessment results. Other 
commenters were concerned about the large change in stock status 
between all the most recent previous ICCAT stock assessment results, 
the conversion rates used to convert dressed weight to whole weight of 
sharks, the potential for under-reporting of harvest by other ICCAT 
members particularly those countries that have larger fishing fleets 
than the United States, and the potential implications of the Marine 
Recreational Information Program (MRIP) catch estimates. These 
commenters requested that NMFS postpone implementing Amendment 11 until 
the next shortfin mako shark stock assessment is completed.
    Response: While there is always uncertainty in stock assessment 
data inputs, model outputs, and the subsequent interpretation of 
results, the SCRS methodologies appropriately considered how to best 
address such uncertainties in this particular context. The SCRS 
described these sources of uncertainty and concluded that the 2017 
stock assessment was an improvement over previous assessments for 
shortfin mako sharks, and reflects the best scientific information 
available on the status of the stock. ICCAT reviewed and accepted the 
results for use in management, and made specific recommendations which 
the United States is obligated to implement as necessary and 
appropriate under ATCA. NMFS is also required to take action to end 
overfishing and rebuild the stock under the Magnuson-Stevens Act given 
the stock's status as overfished with overfishing occurring. If future 
stock assessments reach different conclusions regarding shortfin mako 
shark stock status, and changes to management measures are recommended 
by ICCAT, or if NMFS determines that different measures are needed to 
address management of the stock, then such changes may be considered at 
that time.
    Regarding the comment expressing concern that the United States 
used incorrect conversion rates for dressed weight to whole weight of 
sharks, this issue has also come up in the context of reporting to 
ICCAT. As discussed with the ICCAT Advisory Committee at its Fall 
meeting, the United States surveyed other countries regarding the 
conversion rates and the manner in which those countries dress their 
sharks and then reviewed the data it submitted to ICCAT. Based on this 
review of the data and the survey of other countries' conversion 
factors, the United States found errors in the shortfin mako shark 
commercial landings data previously submitted to ICCAT and determined 
that changing the conversion rate to match that used by Spain and 
Canada was appropriate. Accordingly, the United States submitted 
revised estimates to ICCAT of U.S. harvest for all years. NMFS has 
accordingly updated all the numbers from the DEIS in the FEIS to 
reflect the updated analyses, since the numbers in the DEIS were based 
on the ICCAT submissions. As a result of these revised estimates, the 
U.S. proportion of shortfin mako catches compared to all catches by all 
countries was reduced from 11 percent to 9 percent. For U.S. harvest, 
these changes also resulted in a recalculation of the relative 
contribution of commercial and recreational fisheries to domestic 
shortfin mako shark mortality. The proportion of recreational to 
commercial harvest is not equally split with recreational harvest 
accounting for 58 percent and commercial harvest (including landings 
and dead discards) accounting for 42 percent.
    Comment 3: NMFS received comments regarding the timing and process 
of this rulemaking. Commenters urged NMFS to implement management 
measures immediately based on the best available science to rebuild the 
stock and end overfishing. Other commenters are concerned that this 
rulemaking is premature since ICCAT could make changes in upcoming 
meetings. Some commenters felt the United States should not act 
unilaterally, and implement a rebuilding plan without ICCAT. Another 
commenter stated that NMFS has two years to implement rebuilding plans 
and management measures once the stock is determined to be overfished 
and requested that NMFS wait to implement Amendment 11.
    Response: Amendment 11 is responsive to ICCAT Recommendation 17-08, 
which is a binding recommendation under the ICCAT Convention, and the 
United States is obligated to implement it through regulations as 
necessary and appropriate under ATCA. Due to the requirements in 
Recommendation 17-08 and the status of shortfin mako sharks, NMFS 
worked to immediately implement the requirements in Recommendation 17-
08 via an emergency interim final rule (83 FR 8946; March 2, 2018). 
Under sections 305(c) and 304(e)(6) of the Magnuson-Stevens Act, NMFS 
has the authority to implement interim measures to reduce overfishing 
on an emergency basis for 180 days. Those measures can be extended 
again for another 186 days if necessary. NMFS later extended the 
emergency rule for another 186 days; these emergency measures expire on 
March 3, 2019 (83 FR 42452; August 22, 2018). NMFS aims to have the 
management measures in Amendment 11 in place by the time the emergency 
rule expires or soon thereafter. If ICCAT changes the measures in 
Recommendation 17-08 at future meetings, then the United States will be

[[Page 5361]]

responsive to those changes, consistent with ATCA and the Magnuson-
Stevens Act. NMFS does not have discretion to delay implementation of 
management measures adopted at ICCAT simply because we anticipate there 
may be additional or different ICCAT recommendations in the future. 
This action does not implement a unilateral rebuilding plan in U.S. 
waters for shortfin mako sharks. This action establishes the foundation 
for an international, ICCAT-recommended rebuilding plan, understanding 
that ICCAT intends to adopt such a plan in the future and that the 
United States will advocate for its development at that forum.
    Regarding the comment on the two-year timeframe to implement 
management measures being a reason to delay implementation, we note 
that we have an obligation to implement the measures under ATCA and the 
ICCAT treaty, and that the Magnuson-Stevens Act requires NMFS to take 
measures to end overfishing and to rebuild the stocks. The regulatory 
process to amend the 2006 Consolidated HMS FMP is a lengthy process 
involving significant public input and review; the two-year reference 
in the Magnuson-Stevens Act is not to be read as a delay in starting 
that process, which could prevent measures from being timely 
implemented. Section 304(e)(6) allows for interim measures to reduce 
overfishing to be put in place until a FMP amendment can be finalized; 
this section of the Magnuson-Stevens Act only allows for these interim 
measures to be put in place pursuant to section 305(c), which limits 
the amount of time emergency measures can be effective to 366 days. 
Based on these regulations, NMFS published the emergency interim final 
rule per the authority in sections 305(c) and 304(e)(6) of the 
Magnuson-Stevens Act, and is implementing long-term management measures 
to address overfishing and establish a foundation for rebuilding 
shortfin mako sharks with Amendment 11, consistent with the Magnuson-
Stevens Act.
    Comment 4: NMFS received comments in support of adding a sunset 
clause to this rulemaking, which would remove regulations implemented 
by Amendment 11 if ICCAT makes changes to Recommendation 17-08.
    Response: A ``sunset clause'' on regulations to address overfishing 
of shortfin mako sharks would not be consistent with the ICCAT 
recommendation, or the need to rebuild the stock, which could take 
decades based on the 2017 stock assessment. If ICCAT recommends changes 
to management measures in the future, NMFS would implement necessary 
and appropriate responsive regulatory changes at that time, consistent 
with applicable laws.
    Comment 5: NMFS received comments regarding the implementation of 
the ICCAT regulations and fishing operations by other countries. The 
commenters had concerns that other countries are not implementing the 
Recommendation and about the pace of the U.S. implementation when 
compared to other countries. Commenters also wondered if other ICCAT 
countries have electronic monitoring systems or observers for their 
fleets. In addition, the commenters believe that U.S. fishermen will be 
held accountable for an excessive share of the conservation burden in 
future ICCAT management measures.
    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. 
Regardless of other countries' capability to adequately implement and 
enforce ICCAT recommendations, the United States remains obligated 
under ATCA to implement ICCAT recommendations. As a responsible party 
to ICCAT, NMFS will continue to work collaboratively within the ICCAT 
process and advocate for an effective international rebuilding plan, 
emphasizing the need for all parties to address their relative share of 
contributions to fishing mortality and for equitable management 
measures.
    Comment 6: NMFS should implement an EFH designation for shortfin 
mako sharks.
    Response: NMFS has recently updated EFH designations for shortfin 
mako sharks under Amendment 10 to the 2006 Consolidated HMS FMP. This 
process was initiated with the publication of the draft Atlantic HMS 5 
Year Review on March 5, 2015 (80 FR 11981). In this review, NMFS 
identified new literature and data that should be considered in EFH 
delineation exercises, and recommended updating boundaries for shortfin 
mako sharks. There was insufficient information available per the 
guidelines listed at Sec.  600.815(a)(8)) to warrant a Habitat Area of 
Particular Concern for shortfin mako sharks. NMFS published a draft 
Environmental Assessment, which included proposed updates for shortfin 
mako shark EFH, on September 8, 2016 (81 FR 62100). NMFS received a 
number of written comments and comments at public meetings. Many 
comments included suggestions for EFH boundaries based on academic 
research. NMFS completed a review of EFH-related literature in 
developing the FEIS (see Chapter 3 and Chapter 4 of Amendment 10 for a 
review of shortfin mako habitat and biology, and EFH impacts, 
respectively), and did not identify sufficient literature warranting 
changes to the recently updated EFH boundaries for shortfin mako 
sharks. However new data from ongoing surveys, research, and tagging 
programs was used to update EFH boundaries. EFH updates for shortfin 
mako sharks were finalized September 6, 2017 (82 FR 42329). Maps of 
final EFH boundaries for shortfin mako are available in Appendix G of 
the Final Environmental Assessment. EFH boundaries may also be viewed 
in the EFH Mapper, an online dynamic mapping tool maintained by the 
NMFS Office of Habitat Conservation (https://www.habitat.noaa.gov/protection/efh/efhmapper/). This office also maintains an EFH Data 
Inventory, which includes shapefiles of EFH boundaries that may be 
downloaded by the public (https://www.habitat.noaa.gov/protection/efh/newInv/index.html). The next 5-year review process for HMS EFH will be 
initiated in 2022.
    Comment 7: NMFS received several comments suggesting that 
management measures for shortfin mako sharks should be more restrictive 
than those implemented in this rulemaking, including prohibiting all 
retention of shortfin mako sharks, or other more restrictive measures, 
as the science recommends.
    Response: NMFS disagrees that more restrictive measures are 
required or necessary at this time. The management measures in 
Amendment 11 are consistent with those recommended in ICCAT 
Recommendation 17-08 and with NMFS' obligations to address overfishing 
and rebuilding, understanding that the stock is fished internationally 
and requires international measures to effectively address these 
issues. The selected measures are expected to reduce U.S. shortfin mako 
shark catch consistent with the SCRS recommendation (72-79 percent), 
while still permitting fishermen to retain shortfin mako sharks under 
limited circumstances. Given the species' North Atlantic-wide range and 
that United States catches constitute only approximately nine percent 
of total North Atlantic shortfin mako shark catch, the United States 
cannot unilaterally end overfishing and rebuild the stock through 
domestic regulations alone, even if there were to be a total 
prohibition on possession (which has not been recommended by ICCAT).

[[Page 5362]]

Ending overfishing and rebuilding the stock can only be accomplished 
through international coordination with nations that harvest the 
majority of shortfin mako sharks. NMFS will work with ICCAT members to 
evaluate the effectiveness of these measures, update stock assessment 
projections, establish a rebuilding plan, and develop additional 
measures if necessary.
    Comment 8: NMFS received comments in support of the proposed 
preferred commercial alternative (A2), as well as other comments that 
suggested modifications to Alternative A2. Several commenters along 
with the State of Georgia and the South Atlantic and New England 
Fishery Management Councils supported Alternative A2 (the preferred 
Alternative at the proposed rule stage) since this Alternative is 
consistent with ICCAT Recommendation 17-08, utilized electronic 
monitoring, and allowed NMFS to collect real time landings and 
additional data. NMFS also received comments including from the State 
of North Carolina, Commonwealth of Massachusetts, and HMS Advisory 
Panel members supporting Alternative A2 with modifications. 
Specifically, the State of North Carolina along with other individuals 
suggested a modification that would allow the retention of dead 
shortfin mako sharks caught as bycatch in gillnet and bottom longline 
fisheries. The Commonwealth of Massachusetts and some HMS Advisory 
Panel members suggested a modification that would allow the retention 
of dead shortfin mako sharks by any vessel as long as there is an 
electronic monitoring system or an observer on board the vessel, 
similar to Alternative A5. These commenters also supported Alternative 
A3, which would allow vessels the option to opt out of the electronic 
monitoring system review.
    Response: ICCAT Recommendation 17-08 included a variety of measures 
to reduce shortfin mako shark fishing mortality and to increase live 
releases in response to the 2017 ICCAT North Atlantic shortfin mako 
shark stock assessment. Among these measures was the option to require 
the release of shortfin mako sharks brought to the vessel alive in 
ICCAT fisheries. This option also allows for the retention of shortfin 
mako sharks in ICCAT fisheries that are dead at haulback, provided an 
electronic monitoring system is installed, or an observer is on board 
to verify the disposition of the shark. In Draft Amendment 11, NMFS 
preferred to implement Alternative A2, which limited the retention of 
dead shortfin mako sharks to those caught on vessels with an electronic 
monitoring system. While the draft amendment preferred alternative did 
not limit the gear types that could be used to catch and retain dead 
shortfin mako sharks, the requirement to have an electronic monitoring 
system installed largely limited the measure to pelagic longline 
vessels since these vessels are already required to have electronic 
monitoring systems. Alternative A2 would satisfy the requirements of 
Recommendation 17-08 and also decrease fishing mortality of shortfin 
mako sharks. A large number of commenters expressed support for this 
measure. A full analysis of the ecological and socioeconomic impacts 
for Alternative A2 is provided in Chapter 4 of the FEIS.
    However, during the public comment period, commenters that 
expressed support for the preferred Alternative A2 in Draft Amendment 
11 also voiced support for allowing retention of dead shortfin mako 
sharks in other, non-ICCAT fishery gear types. Although Alternative A2 
did not limit the ability to retain dead shortfin mako sharks to 
pelagic longline vessels, the requirement to install a costly 
electronic monitoring system to do so may have effectively limited the 
allowance for retention to the pelagic longline fishery. HMS-permitted 
pelagic longline vessels are already required to have electronic 
monitoring systems on board, but vessels using other gear types are 
unlikely to install the costly system in order to retain shortfin mako 
sharks, especially considering the relatively low ex-vessel value. 
Thus, the practical effect of Alternative A2 could be to limit the 
measure to pelagic longline vessels. To address the public comments on 
the Proposed Rule for Amendment 11, NMFS is implementing Alternative 
A7, an alternative added and analyzed in the FEIS and adopted in this 
final rule. Alternative A7 is a slight modification and outgrowth of 
Alternative A2. Under preferred Alternative A7, shortfin mako sharks 
caught using gillnet, bottom longline, or pelagic longline gear on 
properly-permitted vessels could be retained, provided they are dead at 
haulback. In the case of pelagic longline vessels, an electronic 
monitoring system would still be required, as proposed, but an 
electronic monitoring system would not be required on vessels that use 
bottom longline or gillnet gear. To be responsive to public comments, 
NMFS reviewed the available data for shortfin mako shark interactions 
by vessels that use bottom longline and gillnet gear. After reviewing 
the information and considering past actions, NMFS decided to add 
Alternative A7 as the preferred alternative. One of the alternatives in 
the proposed rule analyzed and considered retention within the bottom 
longline and gillnet fisheries, and public comment on the alternatives 
resulted in the development of Alternative A7. Commenters thus could 
reasonably have anticipated this alternative, which is a logical 
outgrowth of the alternatives considered, and is consistent with the 
ICCAT measure's application to sharks ``caught in association with 
ICCAT fisheries.'' This alternative is largely the same as Alternative 
A2 except that it allows retention of dead shortfin mako sharks in the 
bottom longline and the gillnet fisheries without requiring an observer 
or electronic monitoring system on board. Shortfin mako sharks are 
rarely caught with bottom longline and gillnet gear. Based on observer 
data, only 40 shortfin mako sharks were caught with bottom longline and 
gillnet gear from 2012 to 2017. Due to the low number of observed 
interactions, it is doubtful any of these landings were the result of 
targeted fishing so it is unlikely more could be done to avoid them. 
NMFS will also continue to track landings and consider additional 
measures if it appeared that an increase in retention results from this 
action, which is extremely unlikely. Retaining an additional six to 
seven dead sharks per year will have no additional negative effects on 
the stock than considered in the proposed rule, and the United States 
will still achieve the needed reductions in mortality with this 
alternative. In addition, allowing retention by these gear types will 
reduce regulatory dead discards in the non-ICCAT fisheries.
    No other commercial gear types would be able to land shortfin mako 
sharks under this alternative. While it is possible for other 
commercial gears to catch shortfin mako sharks (e.g., rod and reel and 
bandit gear), these gears are primarily recreational and are rarely 
used to fish for sharks commercially. Buoy gear in particular can 
interact with shortfin mako sharks but is not an authorized gear; this 
rule does not change that. Under this alternative, all shortfin mako 
sharks would need to be released if caught commercially on these other 
commercial gears, with the exception described below for those vessels 
that hold both a commercial shark permit and a permit with a shark 
endorsement that allows for recreational shark landings. This approach 
is consistent with previous rulemakings that implemented ICCAT 
recommendations for sharks (e.g., prohibiting retention of silky, 
hammerhead, oceanic whitetip, or porbeagle sharks in ICCAT fisheries: 
76

[[Page 5363]]

FR 53652, August 29, 2011; 77 FR 60632, October 4, 2012; 81 FR 57803, 
August 24, 2016). In those cases, NMFS applied ICCAT measures for 
sharks only to the pelagic longline fishery and the handgear fisheries 
when swordfish or tunas are retained because they are considered ICCAT 
fisheries for tunas and tuna-like species. NMFS consistently determined 
that U.S. bottom longline and gillnet vessels are not part of an ICCAT 
fishery because these gears do not regularly catch or land ICCAT 
managed species such as swordfish or tunas. In other words, Alternative 
A7, which would allow landings of dead shortfin mako sharks caught by 
these non-ICCAT fishery gear types, is consistent with past U.S. 
actions.
    Additionally, ICCAT Recommendation 17-08 allows retention of 
shortfin mako sharks that are dead at haulback without the verification 
of electronic monitoring or observers in certain limited circumstances, 
including for vessels under 12 meters. Most vessels that have a 
Directed shark LAP and use bottom longline or gillnet gear have vessel 
lengths that are below 12 meters. In 2017, bottom longline vessels that 
interacted with sharks (based on coastal fisheries and HMS logbook 
reports) averaged 11.4 meters in length. In 2017, gillnet vessels that 
interacted with sharks (based on coastal fisheries and HMS logbook 
reports) averaged 9.6 meters in length. Thus, given past rulemakings 
and given the length of most vessels that target sharks, allowing 
landings of dead shortfin mako sharks by these other gear types is 
appropriate and consistent with ICCAT Recommendation 17-08.
    Comment 9: NMFS received a suggestion for potential management 
measures if more commercial regulations are needed to protect the 
shortfin mako stock. The commenter suggested that NMFS implement a 
seasonal incidental limit of 18 shortfin mako sharks per trip during 
the summer months.
    Response: The preferred alternatives in Final Amendment 11 are 
consistent with ICCAT Recommendation 17-08 and are designed to address 
the United States' contribution to the overfishing of shortfin mako 
sharks. If future ICCAT SCRS analyses determine that additional 
shortfin mako shark mortality reductions are needed, NMFS would 
consider other options, consistent with any ICCAT recommendations. At 
this time, a seasonal commercial limit of shortfin mako sharks is not 
consistent with ICCAT Recommendation 17-08 and it is unclear if it 
would achieve mortality reduction targets.
    Comment 10: NMFS received a comment that the combination of 
preferred alternatives at the proposed rule stage, specifically 
Alternatives A2 and B3, would cause commercial shark permits that are 
held with HMS Charter/Headboat permits to be ``worthless.'' Such 
fishermen hold both permits to allow them to sell sharks caught as 
bycatch when fishing for tuna with handline gear. The proposed 
combination of alternatives would require such a dual-permitted vessel 
to use only pelagic longline gear, to have an electronic monitoring 
system, and to only land shortfin mako sharks that were greater than 83 
inches fork length that were dead at haulback. These requirements would 
apply even when fishing on a for-hire trip.
    Response: The commenter was correct that under the proposed 
alternatives it was unlikely that a dual-permitted vessel (which could 
include a variety of permits including, for example, those vessels that 
hold a commercial shark permit and an Atlantic Tunas General category 
permit that allows for retention of sharks when participating in a 
registered tournament) could land shortfin mako sharks. Additionally, 
NMFS realized this concern about permit combinations could apply to 
many combinations of the commercial and recreational alternatives 
considered. NMFS did not intend for this effect as a result of the 
proposed rule. As such, in the FEIS, NMFS is clarifying how the 
recreational limits would apply to the few individuals who hold a 
commercial shark vessel permit in addition to one of a variety of other 
vessel permits, such as HMS Charter/Headboat, that allow for 
recreational landings of sharks. These vessels generally fish with rod 
and reel or other handgear as opposed to pelagic longline, bottom 
longline, or gillnet gear. However, these vessels are part of the ICCAT 
fishery as they regularly target tunas, billfish, and swordfish. For 
the sake of clarity, NMFS would restrict these permit holders to the 
recreational shark requirements when shortfin mako sharks are onboard 
and prohibit them from selling any sharks when recreationally retaining 
shortfin mako sharks.
    Comment 11: NMFS received comments both in support of and opposed 
to Alternative B3, which was the preferred alternative at the proposed 
rule stage. Some commenters, along with the Commonwealth of 
Massachusetts and the New England Fishery Management Council, supported 
Alternative B2 and management measures to protect shortfin mako sharks 
until they reach maturity. These commenters generally felt that the 
United States strongly supported the adopted size restrictions at 
ICCAT, and that NMFS should not now go beyond the recommendations. 
These commenters noted that the same minimum size under the emergency 
rule reduced U.S. landings beyond the suggested reduction of 72 to 79 
percent. Other commenters noted that NMFS underestimated potential 
reductions in landings in their analysis of the recreational 
alternatives because they did not account for reductions in the number 
of trips that would target shortfin mako sharks. The State of North 
Carolina supported Alternative B3 and specifically noted that if NMFS 
chooses Alternative B2 instead, NMFS should include shark sex 
identification facts on the HMS shark endorsement quiz and other 
outreach material. Commenters from the Gulf of Mexico supported 
Alternative B3 because they commonly interact with shortfin mako sharks 
larger than 83 inches fork length (FL). NMFS also received comments 
from individuals as well as the State of Georgia and the South Atlantic 
Fishery Management Council in support of the Alternative B3, which 
would establish a single recreational size limit of 83 inches FL, and 
is consistent with the measure established in the emergency rule. In 
general, these commenters felt the one size limit in Alternative B3 
would remove any confusion recreational fishermen may have in 
identifying shortfin mako sharks by sex. Additionally, NMFS received 
requests for NMFS to consider other minimum sizes that are smaller than 
the preferred alternative of 83 inches FL. These commenters felt that 
NMFS should protect the larger, breeding female sharks over 83 inches 
FL and implement a smaller minimum size, such as 72 or 75 inches FL, 
for male sharks since those sharks still provide a decent amount of 
meat.
    Response: Based on the public comment and current recreational 
estimated harvest under the emergency regulations (83 inches FL for all 
shortfin mako sharks), NMFS has decided to change the preferred 
alternative in the Final Amendment 11 to Alternative B2, which 
establishes different minimum sizes for male and female shortfin mako 
shark retention (71 inches FL size limit for male and 83 inches FL size 
limit for female shortfin mako sharks). In Draft Amendment 11 and the 
emergency interim final rule, the minimum size limit was increased to 
83 inches FL for both males and females (Alternative B3) to 
significantly reduce shortfin mako

[[Page 5364]]

shark recreational mortality and address overfishing. One size was used 
for both sexes for reasons discussed in the emergency interim final 
rule and proposed rule. Updated data gathered from operations occurring 
under the emergency interim rule provisions indicate, however, that 
this approach would be unnecessarily restrictive for the longer term. 
While the shortfin mako shark landings under the 83-inch FL size limit 
met the suggested reduction target by weight, the size limit exceeded 
the target reduction in numbers of sharks harvested. As described in 
Chapter 4 of the FEIS, Large Pelagics Survey (LPS) data indicated there 
was a substantial reduction in recreational trips targeting shortfin 
mako sharks as a result of implementation of the emergency interim 
rule. The recreational landings data observed in the LPS suggest that 
the separate size limits for male and female sharks now preferred under 
Alternative B2 should still accomplish the suggested mortality 
reduction targets while having less detrimental economic impacts on the 
recreational shark fishery.
    Furthermore, studies have indicated that protecting sub-adult 
sharks is key to conserving and rebuilding shark populations (see 
Chapter 4 of the FEIS). Sub-adults are generally those juvenile sharks 
that are a year or two away from becoming mature adults. While the now-
preferred Alternative B2 will allow greater harvest of male shortfin 
mako sharks, those sharks will still be mature individuals as 71 inches 
FL is the size of maturity for male shortfin mako sharks. Given that 
studies have indicated that protecting sub-adult sharks is key to 
conserving and rebuilding shark populations, Alternative B2 ensures 
that sub-adults would still be adequately protected by establishing 
minimum size limits for male and female sharks based on their size at 
maturity. NMFS also anticipates that the now-preferred Alternative B2, 
which allows recreational fishermen the opportunity to harvest smaller 
male sharks, will help relieve fishing pressure on the larger female 
sharks, which were estimated to comprise approximately 75 percent of 
the harvest under the preferred alternative from the emergency interim 
final rule (Alternative B3), which established only one size for both 
males and females. Landings data from the LPS shows that female 
shortfin mako sharks over 83 inches FL historically made up only about 
12 percent of the overall harvest. Under a single 83 inches FL size 
limit it is highly likely most vessels that successfully harvest a 
shark over 83 inches FL will have already caught and released several 
smaller male sharks first. Since recreational fishermen are only 
allowed to harvest one shortfin mako shark per vessel per day, 
establishing a separate and significantly smaller size limit for male 
sharks will greatly increase the probability that the first legal sized 
shark a vessel interacts with will thus be a male shark which should 
lead to fewer female sharks ultimately being harvested.
    Since the final preferred alternative (Alternative B2) establishes 
a different minimum size limit for each sex of shortfin mako shark 
species, NMFS intends to include information on properly distinguishing 
between male and female sharks on all related outreach materials, web 
page, and the shark endorsement video (which is mandatory for all HMS 
permit holders that wish to retain sharks recreationally). NMFS also 
expects to provide such information to registered HMS shark tournaments 
to make sure participants are aware of the separate size limits and how 
to distinguish between male and female sharks. NMFS will continue to 
monitor recreational landings of shortfin mako sharks, and would take 
action to increase the minimum size limit if recreational landings 
targets are not meet or if enforcing separate size limits by sex proves 
to be impractical.
    Comment 12: NMFS received a comment stating that the seasonal 
recreational alternatives would not allow Gulf of Mexico fishermen 
ample opportunity to land shortfin mako sharks since they primarily 
target the species outside of the months considered in the alternative.
    Response: NMFS did not prefer Alternative B6, or any of its sub-
alternatives, in the proposed rule due to the potential for inequitable 
fishing opportunities this alternative could create in terms of 
regional access to the shortfin mako shark recreational fishery. NMFS 
now prefers Alternative B2, which establishes a minimum size limit of 
71 inches FL for male and 83 inches FL for female shortfin mako sharks, 
which would mean all recreational fishermen would have the same 
regulations regardless of where and when they decide to fish.
    Comment 13: NMFS received comments in support of the no action 
recreational alternative (Alternative B1). Specifically, commenters 
supported keeping the shortfin mako shark recreational minimum size at 
status quo (54 inches FL) since they feel the population decline is not 
due to the recreational fishery and the recreational fishery should not 
be impacted by other fisheries.
    Response: While NMFS recognizes that the U.S. recreational fishery 
for shortfin mako sharks only makes up a small portion of the overall 
international harvest, its contribution to the total U.S. catch is 
larger than the commercial fishery landings. According to data 
presented in the Final Amendment 11, the U.S. recreational fishery 
accounts on average for 58 percent of the total U.S. catch, while the 
commercial fishery accounts on average for 42 percent. Therefore, U.S. 
recreational fisheries have a significant role to play in reducing 
fishing mortality on shortfin mako sharks, and must be included in 
management of this overfished stock. Furthermore, the no action 
alternative would fail to meet the minimum requirements set forth in 
ICCAT Recommendation 17-08 and would be inconsistent with U.S. 
obligations under the ICCAT treaty, ATCA, and other legal requirements.
    Comment 14: NMFS received comments in support of Alternative B8, 
which would establish a tagging program to implement a per season limit 
for recreational fishermen.
    Response: At this time, NMFS does not intend to implement a tagging 
program for recreationally harvested shortfin mako sharks since the 
final preferred alternative (Alternative B2) to establish minimum sizes 
would sufficiently reduce the recreational harvest levels. In addition, 
tagging programs are complicated to implement for a variety of reasons 
including the need to assign a limited number of tags via raffle, and 
the extra time and resources required to track them when reported. As 
discussed in the FEIS, NMFS would need to assign tags via raffle as the 
number of HMS permit holders with shark endorsements far exceeds the 
number of shortfin mako sharks that could be harvested and still meet 
the recommended reduction target of 72 to 79 percent. For these 
reasons, NMFS does not prefer a tagging program at this time.
    Comment 15: NMFS received a comment suggesting that we change the 
shortfin mako shark recreational fishery to be similar to the bluefin 
tuna recreational fishery regulations. The commenter suggested a 
shortfin mako shark recreational fishery where permit holders would be 
restricted to one trophy shark over 83 inches FL, one smaller shark 
between 65 to 83 inches FL, and a 2 shark per season limit per 
recreational shark permit.
    Response: The management regime suggested in this comment would be 
similar to the implementation of a

[[Page 5365]]

tagging program in that such a program would require NMFS to monitor a 
seasonal bag limit. Similar to the tagging program, NMFS has determined 
that such a management program is unnecessary to accomplish the 
recommended reduction in landings as the minimum size limits currently 
under consideration would reduce overall harvest to far fewer than two 
sharks per permitted vessel per season. Furthermore, a 65 inch FL size 
limit for shortfin mako sharks would be below the size limits 
stipulated in ICCAT Recommendation 17-08, and would fail to meet U.S. 
obligations to implement binding ICCAT recommendations under ATCA.
    Comment 16: NMFS received support and opposition for the preferred 
alternative (Alternative B9) to implement circle hooks in the 
recreational fishery. Some commenters along with the Commonwealth of 
Massachusetts and the South Atlantic and New England Fishery Management 
Councils supported the preferred alternative due to the benefits of 
live release of sharks that may provide enhanced survivorship in some 
species. The State of Georgia opposed the implementation of circle 
hooks in the recreational fishery for sharks in federal waters due to 
its ``questionable administration by law enforcement officers'' and the 
unnecessary burden it will place on recreational anglers. In addition, 
the State of Georgia noted that it does not intend to adopt circle 
hooks in state waters.
    Response: Research shows that the use of circle hooks reduces gut-
hooking and increases post-release survival in shortfin mako sharks. 
French et al. (2015) examined the effects of recreational fishing 
techniques, including hook type, on shortfin mako sharks and found that 
circle hooks were more likely to hook shortfin mako sharks in the jaw 
compared to J-hooks. In the study, circle hooks were most likely to 
hook in the jaw (83 percent of the time) while J-hooks most commonly 
hooked in the throat (33 percent of the time) or gut (27 percent of the 
time). J-hooks only hooked in the jaw of shortfin mako sharks 20 
percent of the time. Jaw-hooking is correlated with increased odds of 
post release survival. For these and other reasons (e.g., endangered 
species interactions), NMFS prefers this alternative. In addition, 
circle hooks are already required by HMS permitted commercial and 
recreational, except for north of 41[deg]43' N latitude (near Chatham, 
Massachusetts), fishermen.
    While NMFS recognizes the State of Georgia's concern regarding 
enforceability, circle hooks have been required by HMS recreational 
permit holders since January 1, 2018, and other states, such as the 
State of New York, also requires the use of circle hooks when fishing 
for sharks. In Amendment 5b to the 2006 Consolidated HMS FMP, NMFS 
required the use of non-offset, non-stainless steel circle hooks by HMS 
recreational permit holders with a shark endorsement when fishing for 
sharks recreationally, except when fishing with flies or artificial 
lures, in federal waters south of 41[deg]43' N latitude (near Chatham, 
Massachusetts). The final preferred Alternative (Alternative B9) would 
remove this line and require circle hooks when fishing recreationally 
for sharks in all areas, except when fishing with flies or artificial 
lures.
    Comment 17: NMFS received a comment inquiring whether the new MRIP 
estimates would impact this rulemaking or future stock assessment.
    Response: Recently, NMFS released new MRIP effort and catch 
estimate time series following the implementation of the new Fishing 
Effort Survey (FES) designed for the collection of private boat and 
shore-based fishing effort data, and its calibration with the data 
collected by the historic Coastal Household Telephone Survey (CHTS). 
The implications of the revised estimates on all managed species will 
not be fully understood for several years until they make their way 
through the rigorous scientific stock assessment process. In the coming 
years, the new and revised data will be incorporated into stock 
assessments at the domestic and international level as appropriate. 
However, NOAA Fisheries' primary source of recreational catch data for 
shortfin mako sharks is the Large Pelagic Survey (LPS) which does not 
rely on the FES, and as a result the estimates generated by the LPS 
used in this rulemaking have not changed.
    Comment 18: NMFS received a comment stating that banning tournament 
fishing for sharks would help to end overfishing, and that NMFS would 
be justified in doing so on the grounds that tournament awards add a 
commercial component to what is supposed to be a recreational fishery. 
The commenter also stated that recreationally harvested fish should 
only be used for personal consumption, and not monetized.
    Response: While tournaments do make up a significant portion of the 
recreational shark fishery, NMFS is not in favor of prohibiting shark 
tournaments as a means to address overfishing of shortfin mako sharks 
for a number of reasons. First, tournaments can provide significant 
economic benefits to the coastal communities in which they are held. 
Second, banning tournament or sport fishing while still allowing 
recreational harvest would constitute an inequitable access of the 
resource to the problem of overfishing between tournament and non-
tournament recreational fishermen, and would set a precedent that would 
conflict with the management of other U.S. fisheries. Retention of HMS, 
including shortfin mako sharks submitted for weigh-in to tournaments, 
is authorized under the regulations by the permitted vessel that caught 
the fish. Even in cases where anglers donate their fish to the 
tournament, the tournament is not allowed to sell the fish, but may 
only donate the fish for human consumption to food banks or other 
charities.
    For HMS fisheries, most tournament participants hold recreational 
permits or commercial permits that only allow for recreational landings 
of sharks when used during a registered HMS tournament. None of these 
participants are allowed to sell their catch. Many commercial 
businesses are associated with recreational fisheries including for-
hire vessels, bait and tackle shops, and fishing guides. Like 
tournaments, all of these operations service recreational anglers. The 
distinction between recreational and commercial fishing lies solely in 
whether the fish themselves are sold commercially, not in whether a 
business associated with an activity is providing a commercial service. 
Many shark tournaments are already moving to catch-and-release formats, 
or are shying away from targeting shark species that are not widely 
considered to be edible.
    Comment 19: NMFS received support and opposition for the preferred 
alternative of no action Alternative C1. Some commenters along with the 
Commonwealth of Massachusetts, State of Georgia, and South Atlantic 
Fishery Management Council supported the preferred alternative since it 
would not add any additional reporting requirements for fishermen. 
However, commenters also were concerned that some registered HMS 
tournaments are currently not required to report their catches of all 
HMS. Some commenters opposed the preferred alternative since it would 
create inconsistency with the SCRS advice to gather more data and 
information on shortfin mako sharks and therefore would negatively 
impact science and stock assessments. Some individuals along with the 
Mid-Atlantic Fishery Management Council suggested that NMFS should 
implement mandatory reporting for all recreationally landed and 
discarded shortfin mako sharks. The Mid-Atlantic

[[Page 5366]]

Fishery Management Council stated that it is imperative to collect data 
from commercial and recreational fishermen on landings and discards. 
Other commenters would like equivalent monitoring and accountability 
requirements for all U.S. HMS fisheries, and to fully and accurately 
account for all sources of fishing mortality.
    Response: There are already a number of reporting requirements 
under current HMS regulations for commercial and recreational fishermen 
fishing for shortfin mako sharks. HMS commercial fishermen report 
shortfin mako shark catches through vessel logbooks along with dealer 
reporting of landings. Under Alternative C1, HMS recreational anglers 
fishing from Maine to Virginia would continue to be required to report 
shortfin mako shark landings and releases if intercepted by the LPS, 
and data would continue to be collected on shortfin mako shark catches 
by the APIS, which is part of MRIP. As of January 1, 2019, all 
registered HMS tournaments will be selected for tournament reporting, 
which should account for a significant component of recreational 
shortfin mako shark landings (83 FR 63831; December 12, 2018). In 
addition, most for-hire vessels fishing in the federal waters in the 
Mid-Atlantic area (New York to New Carolina) are currently required by 
the Mid-Atlantic Fishery Management Council to submit electronic vessel 
trip reports for all their trips within 24 hours, thus providing 
another major data stream for shortfin mako shark landings. These 
current reporting systems will allow NMFS to effectively monitor the 
recreational harvest of the stock using a combination of traditional 
intercept surveys, tournament reporting, and electronic reporting 
making the implementation of mandatory 24-hour reporting unnecessary at 
this time.
    NMFS understands that some constituents do not think there is 
equitable reporting across HMS fisheries; however, the current 
reporting systems mentioned above should account for all sources of 
fishing mortality for shortfin mako sharks. NMFS will continue to 
monitor the landings by commercial and recreational fishermen to 
determine if the current reporting systems are sufficiently accounting 
for shortfin mako shark mortality.
    Comment 20: NMFS received a comment in support of requiring 
mandatory reporting with vessel monitoring systems (VMS) if it would 
simplify commercial fishermen's reporting burden, improve the reporting 
of HMS catches across all gears, and improve scientific data. The 
commenters were not supportive of the alternative that would create 
another unnecessary burden on commercial fishermen.
    Response: NMFS agrees that requiring mandatory reporting of 
shortfin mako sharks via VMS could potentially, and unnecessarily, 
increase burden to HMS commercial vessels that already report in other 
ways (vessel logbooks, dealer reports of landings, and electronic 
monitoring system) that are sufficient reporting systems for improving 
data collection for shortfin mako sharks. In addition, given the 
current reporting requirements for all HMS commercial vessels that 
already enable inseason monitoring and management of shortfin mako 
sharks, NMFS did not prefer this alternative at this time. Furthermore, 
NMFS is already implementing electronic HMS logbooks on a voluntary 
basis to improve the timeliness of reporting, and provide data for 
management.
    Comment 21: NMFS received support and opposition for the preferred 
alternative. Some commenters along with the Commonwealth of 
Massachusetts, the State of Georgia, and the South Atlantic and Mid-
Atlantic Fishery Management Councils supported the preferred 
alternative to develop an international rebuilding plan with ICCAT to 
assist with rebuilding the stock and work with other countries to 
implement international management measures. A commenter who opposed 
the preferred alternative wants NMFS to implement a domestic rebuilding 
plan along with the international plan, while other commenters prefer 
that NMFS wait until ICCAT takes further action before finalizing the 
rebuilding plan.
    Response: 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. Therefore, NMFS 
believes that addressing overfishing and preventing 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. For these reasons and for the reasons 
described in response to comment 3 above, NMFS prefers Alternative D3, 
which would establish the foundation for developing an international 
rebuilding plan for shortfin mako sharks.
    Comment 22: NMFS received a comment in support of the alternative 
to remove shortfin mako sharks from the pelagic shark management group 
and establish a separate management group with quota for the species.
    Response: At this time, NMFS does not prefer a shortfin mako shark-
specific quota. ICCAT Recommendation 17-08 did not include individual 
country allocations for shortfin mako sharks upon which to base a 
domestic quota. It is also not clear that a quota would adequately 
protect the stock by reducing mortality because quotas allow for sharks 
that are live at haulback to be landed. Also, it is difficult at this 
time to determine if setting a species-specific quota for shortfin mako 
sharks would have positive ecological benefits for the stock, as this 
scenario was not explored in the stock assessment. A species-specific 
quota for shortfin mako sharks would require authorized fishermen to 
discard all shortfin mako sharks once the quota is reached, potentially 
leading to an increase in regulatory discards, which would not result 
in decreased mortality of shortfin mako sharks and thus, contribute to 
the health of the stock. Additionally, commercially, shortfin mako 
sharks are most often caught with pelagic longline gear incidental to 
other target catch. Since shortfin mako sharks are rarely targeted, 
establishing a shortfin mako shark quota is unlikely to stop incidental 
fishing mortality.
    NMFS believes that ending overfishing and preventing an overfished 
status would be better accomplished through the measures preferred in 
final Amendment 11 and through further critical international efforts 
where other countries that have large landings of shortfin mako sharks 
could participate in mortality reduction discussions instead of a 
species-specific quota within the U.S. fisheries. NMFS will continue to 
monitor progress in the international forum and the needs of the stock, 
as well as whether this action has its intended effect, and will 
consider whether additional measures are appropriate in the future.
    Comment 23: NMFS received a comment in support of the alternative 
to establish bycatch caps for all fisheries that interact with shortfin 
mako sharks. Specifically, the commenter noted that NMFS should count 
the number of shortfin mako sharks caught in all fisheries, cap the 
number of shortfin mako sharks that can be caught, and implement 
accountability measures to control, track, and limit the number of

[[Page 5367]]

shortfin mako sharks that are killed in each fishery.
    Response: At this time, NMFS does not prefer bycatch caps for all 
fisheries that interact with shortfin mako sharks. NMFS has reviewed 
all data available and found that shortfin mako sharks are primarily 
caught in HMS fisheries with pelagic longline gear when commercial 
fishermen are harvesting swordfish and tuna species, and with rod and 
reel gear when recreational fishermen are targeting sharks or other 
HMS. The species is rarely caught in other fisheries or with other gear 
types. To the extent they are, the final preferred commercial 
alternative, Alternative A7, limits any landing to shortfin mako sharks 
that are dead at haulback. Because shortfin mako sharks are rarely seen 
in fisheries other than the ones listed, establishing bycatch caps in 
non-pelagic longline or non-recreational handgear fisheries is unlikely 
to provide additional protection. As ICCAT has not established an 
overall TAC for shortfin mako sharks, it is difficult to determine at 
what level NMFS would establish a bycatch cap. Given that shortfin mako 
sharks are rarely caught on these other gear types, a bycatch cap would 
be unlikely to change fishing behavior or result in sufficient 
ecological benefits that compensate for administrative and regulatory 
burden. However, if shortfin mako shark interactions increase in those 
fisheries, which would then indicate fishing behavior has changed in 
some form, then NMFS may consider additional measures such as 
establishing a bycatch cap in these fisheries in the future.
    Comment 24: NMFS received a comment suggesting that we increase the 
minimum recreational size limit for porbeagle sharks.
    Response: This comment is beyond the scope of this rulemaking. The 
purpose of Amendment 11 is to develop and implement management measures 
that would address overfishing and take steps towards rebuilding the 
North Atlantic shortfin mako shark stock. The most recent stock 
assessment for porbeagle sharks indicated that the stock was 
overfished, but overfishing was no longer occurring, and showing signs 
of early rebuilding. At this time, NMFS does not have any new 
scientific information to justify increasing the minimum recreational 
size limit for porbeagle sharks.

Changes From the Proposed Rule (83 FR 35590; July 27, 2018)

    This section explains the changes in the regulatory text from the 
proposed rule to the final rule. Some changes were made in response to 
public comment, and others clarify text for the final rule. The changes 
from the proposed rule text in the final rule are described below.

1. Sec.  635.20(e)(2) and (e)(6). Modification to the Recreational 
Minimum Size Limit for Shortfin Mako Sharks

    This final rule implements separate size limits for male (71 inches 
FL) and female (83 inches FL) shortfin mako sharks under Alternative B2 
as opposed to the single size limit of 83 inches FL (Alternative B3) 
that was preferred in the proposed rule and implemented in the 
emergency interim final rule. NMFS decided to change the preferred 
alternative due to public comment and updated data on the effects of 
the emergency interim final rule measure on estimated landings and 
directed effort for shortfin mako sharks in the recreational fishery. 
The minimum sizes in the final rule also directly match the measures in 
the ICCAT recommendation, which provided different minimum sizes for 
males and females.
    For the emergency interim rule and the proposed rule, NMFS assumed 
in the recreational analyses that directed effort for shortfin mako 
sharks would not change as a result of a change in the minimum 
retention size, but the 2018 LPS data found that effort actually went 
down substantially. Thus, NMFS now understands the estimates of 
expected landings reductions in the earlier actions to be overly 
conservative. Furthermore, public comment reflected that fewer 
recreational trips were taken due to the larger minimum size limit and 
reduced likelihood of catching and landing a shortfin mako shark above 
the size limit. Thus, in the final rule, it is appropriate to reduce 
the minimum size limit for males to 71 inches FL, consistent with the 
ICCAT recommendation. The minimum size for female mako sharks will 
remain at 83 inches FL.
    The differing minimum size limits in the preferred alternative are 
expected to achieve the needed reduction in landings and fishing 
mortality while protecting reproductive-age female shortfin mako 
sharks, but with fewer socio-economic impacts to recreational 
fishermen. By reducing the minimum size for retaining male shortfin 
mako sharks, fishermen may more frequently harvest smaller, mature male 
sharks instead of the larger female sharks, which will leave more 
female sharks that are critical to reproduction of the stock in the 
population. This approach, which reduces fishing pressure on the female 
spawning stock, is consistent with general scientific advice about 
sharks. (Cortes 2002, Chapple and Botsford 2013).
    According to length composition information from the LPS from 2012 
through 2017, this final action would reduce the number of recreational 
landings of male shortfin mako sharks by up to 47 percent and female 
shortfin mako sharks by up to 78 percent for an average reduction in 
total morality of 65 percent, if fishing effort for shortfin mako 
sharks were to remain the same. However, the reduction in landings 
under this alternative is likely to be somewhat greater than that 
because recreational fishermen likely will continue taking fewer trips 
targeting shortfin mako sharks as a result of the changes in size 
limits. Effort data collected via the LPS suggests that in 2018 there 
was a large reduction in directed fishing trips targeting shortfin mako 
sharks under the 83-inch FL size limit implemented by the emergency 
interim final rule compared to the previous six-year average. Directed 
trips in the LPS region (Maine to Virginia) for shortfin mako sharks 
from June through August 2018 declined an estimated 34 percent compared 
to the six-year average from 2012 through 2017. This reduction in 
directed trips resulted in greater than projected reductions in 
shortfin mako shark landings. The June through August time period 
traditionally accounts for over 90 percent of directed trips for 
shortfin mako sharks. Based on the LPS data from 2012 through 2017, 
shortfin mako sharks were the primary target species in approximately 
67 percent of trips that caught and 75 percent of trips that landed the 
species. As such, a reduction in directed fishing effort could 
substantially reduce the landings expected under this alternative, 
while achieving the needed fishing mortality reductions in conjunction 
with other measures in the final rule.
    As explained above in the comment and response section, such 
reductions in fishing effort should result in landings reductions that 
more closely result in the ICCAT reduction target of 72 to 79 percent 
than those that would have resulted from the single 83-inch FL size 
limit (Alternative B3), which resulted in greater reductions. Thus, 
NMFS is implementing two separate size limits for shortfin mako sharks.
    Public comment reflects that some people are concerned about the 
ability of recreational shark anglers to differentiate between male and 
female sharks. NMFS is adding information on how to distinguish the sex 
of sharks in shark outreach materials, including the Shark Endorsement 
educational video that all HMS permit holders must watch

[[Page 5368]]

if they wish to receive a shark endorsement needed to retain sharks 
recreational.

2. Sec. Sec.  635.21(a)(4), (c)(1), (d)(5), and (g)(6); 635.24(a)(4); 
and 635.71(d)(27) and (d)(28). Modification to Authorized Commercial 
Gear To Retain Shortfin Mako Sharks

    The commercial measure preferred in the proposed rule (Alternative 
A2) only allowed the retention of shortfin mako sharks that were dead 
at haulback by vessels with a functioning electronic monitoring system 
on board the vessel. While the proposed measure did not limit the gear 
types that could be used to catch and retain dead shortfin mako sharks, 
the requirement to have an electronic monitoring system installed 
effectively limited the measure to pelagic longline vessels since those 
vessels are already required to have electronic monitoring systems. In 
response to public comments, NMFS reviewed the available data for 
shortfin mako shark interactions by vessels that use bottom longline 
and gillnet gear. Available data indicates that allowing fishermen to 
retain dead shortfin mako sharks caught in bottom longline or gillnet 
gear is unlikely to impact the overall mortality or harvest totals, 
since these gear types rarely interact with the species. Specifically, 
commercial shark fishermen using bottom longline or gillnet gear 
rarely, if ever, catch shortfin mako sharks. Since 2012, only six 
shortfin mako shark were observed in the bottom longline shark fishery 
and 34 were observed in the gillnet shark fishery. ICCAT Recommendation 
17-08 allows retention of shortfin mako sharks that are dead at 
haulback without the verification of electronic monitoring or observers 
in certain limited circumstances, including for vessels under 12 
meters. Most vessels that have a shark LAP and use bottom longline or 
gillnet gear have vessel lengths that are below 12 meters. In 2017, 
bottom longline vessels that interacted with sharks (based on coastal 
fisheries and HMS logbook reports) averaged 11.4 meters in length. In 
2017, gillnet vessels that interacted with sharks (based on coastal 
fisheries and HMS logbook reports) averaged 9.6 meters in length. Thus, 
given past rulemakings and given the length of most vessels that target 
sharks, allowing landings of dead shortfin mako sharks by these other 
gear types is appropriate and consistent with ICCAT Recommendation 17-
08. As a result, in the final rule, NMFS will allow for the retention 
of shortfin mako sharks that are dead at haulback by properly-permitted 
vessels that are fishing with bottom longline or gillnet gear even if 
they do not have a functioning electronic monitoring system on board. 
The changes in the regulatory text specifies that vessels with bottom 
longline or gillnet gear onboard must release all live shortfin mako 
sharks.

3. Sec.  635.22(c)(1) and (c)(7). Modifications Regarding Atlantic HMS 
Charter/Headboat, Atlantic Tunas General Category, and Swordfish 
General Commercial Permit Holders

    Based on public comment, NMFS is clarifying how the recreational 
limits would apply to the few individuals who hold a commercial shark 
vessel permit in addition to one of a variety of other vessel permits, 
such as HMS Charter/Headboat, that allow for recreational landings of 
sharks under certain circumstances. These individuals generally fish 
with rod and reel or other handgear as opposed to pelagic longline, 
bottom longline, or gillnet gear. While they hold a commercial shark 
permit, for the most part, these individuals are fishing for sharks 
recreationally. However, under the combination of measures in the 
proposed rule, these individuals would not be allowed to land any 
shortfin mako sharks as they would not have the electronic monitoring 
equipment required under the proposed commercial measures. For the sake 
of clarity and in response to public comment, this rule specifies that 
the recreational shark requirements, including the no sale requirement, 
apply for these individuals when shortfin mako sharks are onboard.

Classification

    Pursuant to 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.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the 30-day delay in effective date under 5 U.S.C. 553(d)(3) of 
the Administrative Procedure Act. Delaying the effectiveness of these 
regulations could undermine the purpose of this action to put in place 
measures to address overfishing of shortfin mako sharks. Similar 
measures were originally implemented by emergency interim final rule 
under Section 305(c) of the Magnuson-Stevens Act, and have been in 
place for since March 2018. The emergency measures will expire on March 
3, 2019, and a lapse in these measures would be confusing to the 
regulated community, complicate enforcement efforts, and potentially 
harm the long-term sustainability of the stock. While NMFS originally 
timed the rulemaking to allow for a delay in effectiveness, a lapse in 
government appropriations resulted in a government shutdown for 35 days 
in December 2018-January 2019. If these measures are not implemented 
before the emergency rule expires, technically the management measures 
for the stock would revert to those that existed prior to the emergency 
rule. This means the recreational minimum size limit for shortfin mako 
sharks would revert to 54 inches FL, the use of circle hooks by 
recreational fishermen would not be required across the range of the 
species stock, and commercial fishermen would no longer be required to 
release shortfin mako sharks that are alive at haulback. This would be 
confusing for the regulated community, which would then be required to 
switch to the new regulations only 30 days later. In the event of a 
short lapse between the emergency rule and implementation of this final 
rule, NMFS would notify the regulated community of the situation and 
encourage voluntary compliance with the emergency rule measures for 
consistency but compliance would not be assured. Thus, the need to 
implement these measures in a timely manner to reduce the risk of 
overfishing shortfin mako sharks constitute good cause to make the rule 
effective immediately upon publication in the Federal Register. 
Furthermore, prior to the release of this final rule, on December 14, 
2018, NMFS published a notice of availability of the Final EIS 
supporting this action, thereby providing the public and affected 
entities prior notice of the final measures contained in this rule.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. The Agency has consulted, to the 
extent practicable, with appropriate state and local officials to 
address the principles, criteria, and requirements of Executive Order 
13132.
    In compliance with section 604 of the Regulatory Flexibility Act 
(RFA), NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for 
this final rule. The FRFA analyzes the anticipated economic impacts of 
the final actions and any significant economic impacts on small 
entities. The FRFA is below.
    Section 604(a)(1) of the RFA requires a succinct statement of the 
need for and objectives of the rule. Consistent with the provisions of 
the Magnuson-Stevens Act and ATCA, NMFS plans to modify the 2006 
Atlantic HMS FMP in response to ICCAT Recommendation 17-08 and the 
stock status determination for shortfin mako sharks. NMFS has 
identified the following objectives with

[[Page 5369]]

regard to this action: Address overfishing of shortfin mako sharks; 
take steps towards rebuilding; establish the foundation for rebuilding 
the North Atlantic shortfin mako stock; and modify the 2006 
Consolidated HMS FMP in response to ICCAT Recommendation 17-08 and the 
stock status determination for shortfin mako sharks.
    Section 604(a)(2) requires a summary of significant issues raised 
by public comment in response to the IRFA and a summary of the 
assessment of the Agency of such issues, and a statement of any changes 
made in the rule as a result of such comments. NMFS did not receive any 
comments specifically on the IRFA, however the Agency did receive some 
comments regarding the anticipated or perceived economic impact of the 
rule. Summarized public comments and the Agency's responses to them are 
included above. We did not receive any comments from the Chief Counsel 
for Advocacy of the Small Business Administration in response to the 
proposed rule or the IRFA.
    Section 604(a)(4) of the Regulatory Flexibility Act requires 
Agencies to provide an estimate of the number of small entities to 
which the rule would apply. The Small Business Administration (SBA) has 
established size criteria for all major industry sectors in the United 
States, including fish harvesters. Provision is made under SBA's 
regulations for an agency to develop its own industry-specific size 
standards after consultation with SBA Office of Advocacy and an 
opportunity for public comment (see 13 CFR 121.903(c)). Under this 
provision, NMFS may establish size standards that differ from those 
established by the SBA Office of Size Standards, but only for use by 
NMFS and only for the purpose of conducting an analysis of economic 
effects in fulfillment of the agency's obligations under the RFA. To 
utilize this provision, NMFS must publish such size standards in the 
Federal Register (FR), which NMFS did on December 29, 2015 (80 FR 
81194, December 29, 2015). In this final rule, effective on July 1, 
2016, 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. NMFS considers all 
HMS permit holders to be small entities because they had average annual 
receipts of less than $11 million for commercial fishing. The Small 
Business Administration (SBA) has established size standards for all 
other major industry sectors in the U.S., including the scenic and 
sightseeing transportation (water) sector (NAICS code 487210, for-
hire), which includes charter/party boat entities. The Small Business 
Administration (SBA) has defined a small charter/party boat entity as 
one with average annual receipts (revenue) of less than $7.5 million.
    Regarding those entities that would be directly affected by the 
recreational management measures, HMS Angling (Recreational) category 
permits are typically obtained by individuals who are not considered 
businesses or small entities for purposes of the RFA because they are 
not engaged in commercial business activity. Vessels with the HMS 
Charter/Headboat category permit can operate as for-hire vessels. These 
permit holders can be regarded as small entities for RFA purposes 
(i.e., they are engaged in the business of fish harvesting, are 
independently owned or operated, are not dominant in their field of 
operation, and have average annual revenues of less than $7.5 million). 
Overall, the recreational alternatives would have impacts on the 
portion of the 3,635 HMS Charter/Headboat permit holders who hold a 
shark endorsement. There were also 287 registered HMS tournaments in 
2017, which could be impacted by this rule. Of those registered HMS 
tournaments, 75 had awards or prizes for pelagic sharks.
    Regarding those entities that would be directly affected by the 
preferred commercial management measures, the average annual revenue 
per active pelagic longline vessel is estimated to be $187,000 based on 
the 170 active vessels between 2006 and 2012 that produced an estimated 
$31.8 million in revenue annually. The maximum annual revenue for any 
pelagic longline vessel between 2006 and 2016 was less than $1.9 
million, well below the NMFS small business size standard for 
commercial fishing businesses of $11 million. Other non-longline HMS 
commercial fishing vessels generally earn less revenue than pelagic 
longline vessels. Therefore, NMFS considers all Atlantic HMS commercial 
permit holders to be small entities (i.e., they are engaged in the 
business of fish harvesting, are independently owned or operated, are 
not dominant in their field of operation, and have combined annual 
receipts not in excess of $11 million for all its affiliated operations 
worldwide). The preferred commercial alternatives would apply to the 
280 Atlantic tunas Longline category permit holders, 220 directed shark 
permit holders, and 268 incidental shark permit holders. Of these 280 
permit holders, 88 pelagic longline vessels were actively fishing in 
2017 based on logbook records. Based on HMS and Coastal Fisheries 
Logbook data, an average of 20 vessels per year that used gear other 
than pelagic longline gear interacted with shortfin mako sharks between 
2015 and 2017.
    NMFS has determined that the preferred alternatives would not 
likely directly affect any small organizations or small government 
jurisdictions defined under RFA, nor would there be disproportionate 
economic impacts between large and small entities. Furthermore, there 
would be no disproportionate economic impacts among the universe of 
vessels based on gear, home port, or vessel length.
    Section 604(a)(5) of the RFA requires agencies to describe any new 
reporting, record-keeping and other compliance requirements. The 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 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. Alternative A1, 
the No Action alternative, would keep the non-emergency rule 
regulations for shortfin mako sharks. Once the emergency rule for 
shortfin mako sharks expires, management measures would revert back to 
those effective before March 2018 (e.g., no requirement to release 
shortfin mako sharks that are alive at haulback). Directed and 
incidental shark LAP holders would continue to be allowed to land and 
sell shortfin mako sharks to an authorized dealer, subject to current 
limits, including the pelagic shark commercial quota. Short-term direct 
economic impacts on small entities would likely be neutral since 
commercial fishermen could continue to catch and retain shortfin mako 
sharks at a similar level and rate as the status quo.
    In recent years, about 181,000 lb dw of shortfin mako sharks have 
been landed and the commercial revenues from shortfin mako sharks have 
averaged approximately $373,000 per year, which equates to 
approximately 1 percent of overall HMS ex-vessel revenues. 
Approximately 97.5 percent of shortfin mako commercial landings, based 
on dealer reports, were made by pelagic longline vessels. There were 88 
pelagic longline vessels that were active in 2017 based on logbook 
reports. Therefore, the average revenue from shortfin mako shark 
landings per

[[Page 5370]]

pelagic longline vessel is $4,133 per year.
    Even though pelagic longline gear is the primary commercial gear 
used to land shortfin mako sharks, other gear types also interact with 
this species. Based on HMS and Coastal Fisheries Logbook data, an 
average of 20 vessels per year that used gear other than pelagic 
longline gear interacted with shortfin mako sharks between 2015 and 
2017. Therefore, these vessels that used gear other than pelagic 
longline gear landed an average of only $933 worth of shortfin mako 
sharks per year.
    Under Alternative A2, retention of shortfin mako sharks would only 
be allowed if the following three criteria are met: (1) The vessel has 
been issued a Directed or Incidental shark LAP, (2) the shark is dead 
at haulback, and (3) there is a functional electronic monitoring system 
on board the vessel. This alternative is designed to be consistent with 
one of the limited provisions allowing retention of shortfin mako 
sharks under ICCAT Recommendation 17-08. Under the current HMS 
regulations, all HMS permitted vessels that fish with pelagic longline 
gear are already required to have a functional electronic monitoring 
system (79 FR 71510; December 2, 2014) and either a Directed or an 
Incidental shark LAP. Vessels utilizing other gear types (i.e., gillnet 
or bottom longline) are not required to have an electronic monitoring 
system under current regulations but could choose to install one if the 
operator wishes to retain shortfin mako sharks that are dead at 
haulback and if the vessel holds a commercial shark LAP. Under this 
alternative, the electronic monitoring system would be used to verify 
and ensure that only shortfin mako sharks dead at haulback were 
retained.
    This alternative would be consistent with ICCAT Recommendation 17-
08 and would reduce the number of landings by pelagic longline vessels 
on average by 74 percent based on observer data from 2012-2017. A 74 
percent reduction in shortfin mako landings would reduce revenues by an 
average of $3,058 per vessel for the 88 activate pelagic longline 
vessels and would eliminate all of the $933 in landing per vessel by 
the 10 non-pelagic longline vessels that landing shortfin mako sharks 
since those vessels are unlikely to have electronic monitoring systems 
currently installed. Those non-pelagic longline vessels would need to 
pay to install electronic monitoring systems if they wish to retain 
shortfin mako sharks, introducing an additional expense for those 
vessels if it there were an economic incentive for those vessels to try 
to retain shortfin mako sharks under this alternative. Overall, this 
alternative would have minor economic costs on small entities because 
these measures would reduce the number of shortfin mako sharks landed 
and sold by these fishing vessels. However, shortfin mako sharks are 
rarely a target species and are worth less than other target species. 
Although this alternative was preferred at the DEIS stage, NOAA 
Fisheries now prefers Alternative A7 which is a slightly modified 
version of Alternative A2. Because Alternative A7 is responsive to 
public comment while still meeting management goals, NOAA Fisheries no 
longer prefers Alternative A2.
    Alternative A3 is similar to Alternative A2 except that the ability 
to retain dead shortfin mako sharks would be limited to permit holders 
that opt in to a program that would use the existing electronic 
monitoring systems, which are currently used in relation to the bluefin 
tuna IBQ program, also to verify the disposition of shortfin mako 
sharks at haulback. In other words, this alternative would allow for 
retention of shortfin mako sharks that are dead at haulback by persons 
with a Directed or Incidental shark LAP only if permit holders opt in 
to enhanced electronic monitoring coverage. If the permit holder does 
not opt in to the enhanced electronic monitoring coverage, they could 
not retain any shortfin mako sharks.
    The economic impacts to small entities under this alternative are 
expected to be similar to those under Alternative A2. Under this 
alternative, a portion of the pelagic longline fleet could opt out of 
any retention of shortfin mako sharks, resulting in a greater reduction 
in overall shark ex-vessel revenue for those vessels. Overall, the 
socioeconomic impacts associated with these reductions in revenue are 
not expected be substantial, as shortfin mako sharks comprise less than 
one percent of total HMS ex-vessel revenues on average. Non-pelagic 
longline vessels would need to pay to install electronic monitoring 
systems if they wish to retain shortfin mako sharks, introducing an 
additional expense for those vessels. Due to the low commercial value 
of shortfin mako sharks and the high cost of electronic monitoring it 
is reasonable to expect that these fisheries will not install cameras 
and therefore will not retain shortfin mako sharks. Overall, this 
alternative would have minor economic costs on small entities by 
reducing the number of shortfin mako sharks landed and sold.
    Alternative A4 would establish a commercial minimum size of 83 
inches FL (210 cm FL) for retention of shortfin mako sharks caught 
incidentally during fishing for other species, whether the shark is 
dead or alive at haulback. Based on observer data, only 8 percent of 
shortfin mako sharks are caught with pelagic longline gear greater than 
83 inches FL. Thus, restricting fishermen to retaining 8 percent of 
shortfin mako sharks would represent a considerable reduction in number 
of shortfin mako sharks landed and in the resulting ex-vessel revenue. 
A 92 percent reduction in shortfin mako landings would reduce annual 
revenues by an average of $3,802 per vessel for the 88 activate pelagic 
longline vessels and would reduce annual revenues by an average of $858 
per vessel for the 10 non-pelagic longline vessels that land shortfin 
mako sharks. However, the overall economic impacts associated with 
these reductions in revenue are not expected 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 gear types (e.g., bottom longline, gillnet, 
handgear) is very small. Overall, this alternative would have minor 
economic impacts on small entities because these measures would reduce 
the number of shortfin mako sharks landed and sold by these fishing 
vessels, however, shortfin mako sharks are rarely a target species and 
are worth less than other more valuable target species.
    Alternative A5 would allow fishermen to retain shortfin mako sharks 
caught on any commercial gear (e.g., pelagic longline, bottom longline, 
gillnet, handgear) provided that an observer is on board that can 
verify that the shark was dead at haulback. Under this alternative, 
electronic monitoring would not be used to verify the disposition of 
shortfin mako sharks caught on pelagic longline gear, but instead 
pelagic longline vessels could only retain shortfin mako sharks when 
the sharks are dead at haulback and an observer is on board.
    Since only five percent of pelagic longline gear trips are 
observed, this alternative would result in a 95 percent reduction in 
the number of shortfin mako sharks retained on pelagic longline gear. A 
95 percent reduction in shortfin mako landings would reduce annual 
revenues by an average of $3,926 per vessel for the 88 activate pelagic 
longline vessels and would reduce annual revenues by an average of $886 
per vessel for the 10 non-pelagic longline vessels that land shortfin 
mako sharks. However, the overall economic

[[Page 5371]]

impacts associated with these reductions in revenue are not expected 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 gear types (e.g., bottom longline, 
gillnet, handgear) is very small. Overall, this alternative would have 
minor economic costs on small entities because these measures would 
reduce the number of shortfin mako sharks landed and sold by these 
fishing vessels, however, shortfin mako sharks are rarely a target 
species and are worth less than other more valuable target species. 
Compared to the preferred Alternative A7, this alternative would place 
more restrictive limits on fishermen using pelagic longline, bottom 
longline, and gillnet gear. Observers are only occasionally on board 
vessels, so limiting the retention of shortfin mako sharks to trips 
with an observer would reduce the opportunity to retain dead 
individuals. The reduced opportunity to retain dead shortfin mako 
sharks would not reduce fishing mortality on the stock. Therefore, NMFS 
does not prefer this alternative at this time.
    Alternative A6 would place shortfin mako sharks on the prohibited 
sharks list to prohibit any catch or retention of shortfin mako sharks 
in commercial HMS fisheries. In recent years, about 181,000 lb dw of 
shortfin mako sharks have been landed and the commercial revenues from 
shortfin mako sharks have averaged approximately $373,000 per year, 
which equates to approximately one percent of overall HMS ex-vessel 
revenues. That revenue would be eliminated under this alternative. 
Approximately 97.26 percent of shortfin mako commercial landings, based 
on dealer reports, were made by pelagic longline vessels. There were 88 
pelagic longline vessels that were active in 2017 based on logbook 
reports. Therefore, the average loss in annual revenue from shortfin 
mako shark landings per pelagic longline vessel would be $4,133 per 
year. The average loss in annual revenue from shortfin mako shark 
landings for vessel using other gear types would be $933 per year. 
However, the overall economic impacts associated with these reductions 
in revenue are not expected 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 
gear types (e.g., bottom longline, gillnet, handgear) is very small. 
Overall, this alternative would have minor economic costs on small 
entities because these measures would reduce the number of shortfin 
mako sharks landed and sold by these fishing vessels, however, shortfin 
mako sharks are rarely a target species and are worth less than other 
more valuable target species. Therefore, NMFS does not prefer this 
alternative at this time.
    Based on public comment, Alternative A7 is a new alternative in 
this FEIS that is a logical outgrowth of the previously-preferred 
Alternative A2. Under preferred Alternative A7, shortfin mako sharks 
caught using gillnet, bottom longline, or pelagic longline gear on 
properly-permitted vessels could be retained, provided they are dead at 
haulback. In the case of pelagic longline vessels, an electronic 
monitoring system would be required, but not on bottom longline of 
gillnet vessels.
    During the public comment period, some commenters that expressed 
support for the DEIS preferred alternative also voiced support for 
expanding the ability to retain dead shortfin mako sharks should not be 
limited solely to the pelagic longline gear, and they felt that 
requiring electronic monitoring systems on small vessels essentially 
would effectively create such a restriction. Although the DEIS 
preferred alternative did not limit the ability to retain dead shortfin 
mako sharks to pelagic longline vessels, the requirement to install a 
costly electronic monitoring system to do so may have limited the 
measure to the pelagic longline fishery. HMS-permitted pelagic longline 
vessels are already required to have electronic monitoring systems on 
board, but vessels using other gear types are unlikely to install the 
costly system in order to retain shortfin mako sharks, especially 
considering the relatively low ex-vessel value. Thus, the practical 
effect of Alternative A2 could be to limit the measure to pelagic 
longline vessels. To address the public comments, NOAA Fisheries now 
prefers Alternative A7, a newly added alternative in the FEIS that is a 
slightly modified extension of Alternative A2. Under preferred 
Alternative A7, shortfin mako sharks caught using gillnet, bottom 
longline, or pelagic longline gear on properly-permitted vessels could 
be retained, provided they are dead at haulback. In the case of pelagic 
longline vessels, an electronic monitoring system would be required, 
but not on bottom longline or gillnet vessels.
    This alternative would have a similar impact as Alternative A2 for 
pelagic longline vessels (reducing revenues by an average of $3,058 per 
vessel), but it would not impact the estimated 10 non-pelagic longline 
vessels. Therefore, it would prevent the estimated $933 in reduced 
landings per vessel for those non-pelagic longline vessels that would 
occur under Alternative A2. Allowing fishermen to retain dead shortfin 
mako sharks caught in bottom longline or gillnet gear is unlikely to 
have a large impact since these gear types rarely interact with the 
species. Overall, this alternative would have minor economic costs on 
small entities because these measures would reduce the number of 
shortfin mako sharks landed and sold by these fishing vessels. However, 
shortfin mako sharks are rarely a target species and are worth less 
than other more valuable target species. NMFS prefers this alternative 
because it achieves the objectives of the amendment and largely the 
same conservation benefit while easing costly requirements on small 
vessels and thus with less economic impact or restrictions on 
commercial fishermen.
    While HMS Angling permit holders are not considered small entities 
by NMFS for purposes of the Regulatory Flexibility Act, Charter/
Headboat permit holders and tournament operators are considered to be 
small entities and could be potentially impacted by the various 
recreational alternatives, as described below.
    NMFS received public comment that indicated the proposed suite of 
measures presented in Alternatives B2 through B8 particularly 
restricted vessels with multiple HMS permits. These vessels generally 
fish with rod and reel or other handgear as opposed to pelagic 
longline, bottom longline, or gillnet gear. However, these vessels are 
part of the ICCAT fishery as they regularly target tunas, billfish, and 
swordfish. For the sake of clarity, we are therefore limiting them to 
the recreational shark requirements when shortfin mako sharks are 
onboard, and prohibiting them from selling any sharks when 
recreationally retaining shortfin mako sharks.
    For these alternatives, a vessel issued both a Federal Atlantic 
commercial shark vessel permit under Sec.  635.4(e) and an HMS Charter/
Headboat permit with a shark endorsement under Sec.  635.4(b) could 
land shortfin mako sharks in accordance with the recreational size 
limits under Sec.  635.20(e), but could not retain them commercially. 
This will limit the ability of a small number of vessels to generate 
commercial revenue from sharks while landing shortfin mako sharks under 
the recreational size limits. In fact, there were only 35 General 
Category and 14 Charter/Headboat vessels with Directed or Incidental 
Shark permits in 2017. Between 2012 and 2017, shortfin mako sharks 
caught on hook and line or

[[Page 5372]]

handline only composed less than 1 percent of commercial landings. On 
an individual vessel basis, a prohibition on the landing of shortfin 
mako sharks is unlikely to affect the profitability of a commercial 
charter/headboat trip or the value of a shark incidental limited access 
permit on the open market. Ex-vessel prices for shortfin mako sharks 
are only around $1.50 per pound while prices for yellowfin, bigeye, and 
bluefin tuna can range from $3.50 to $8.00 per pound (2017 SAFE 
Report). Thus, shortfin mako sharks are less valuable than target tuna 
species. Furthermore, other incidentally-caught sharks could still be 
legally retained and sold.
    Similarly, a vessel issued both a Federal Atlantic commercial shark 
vessel permit under Sec.  635.4(e) and an Atlantic Tunas General 
category permit under Sec.  635.4(d) or a Swordfish General Commercial 
permit under Sec.  635.4(f) with a shark endorsement could land 
shortfin mako sharks in accordance with the recreational size limits 
under Sec.  635.20(e) when fishing in a registered HMS tournament Sec.  
635.4(c)(2). If a shortfin mako shark is retained by such vessels, any 
other shark species being retained cannot exceed the recreational 
retention limits under Sec.  635.22(c) and cannot be sold.
    Alternative B1, the no action alternative, would not implement any 
management measures in the recreational shark fishery to decrease 
mortality of shortfin mako sharks. This would result in no additional 
economic impacts on small entities associated with this fishery in the 
short-term.
    Under Alternative B2, the preferred alternative, the minimum size 
limit for the retention of shortfin mako sharks would be increased from 
54 inches FL to 71 inches FL for male and 83 inches FL for female 
shortfin mako sharks.
    Under the proposed rule and Draft Amendment 11, Alternative B2 was 
not a preferred alternative. Instead, NMFS had preferred Alternative B3 
which implemented a single size limit of 83 inches FL for all shortfin 
mako sharks. NMFS has decided to change that for a number of reasons 
including public comment, greater than estimated landings reductions 
under the 83 inch FL size limit implemented under the emergency interim 
rule, evidence of reduced directed effort for shortfin mako sharks 
under the emergency interim rule, and because this alternative would 
not increase harvest of mature female sharks compared to the 83 inch 
size limit implemented by the emergency interim final rule.
    NMFS received a number of public comments urging the agency to 
adopt this alternative as the preferred alternative, and implement the 
size limits specified in one of the measures of the ICCAT 
recommendation. Commenters pointed out that the U.S. delegation had 
supported the recommendation, and that U.S. recreational landings 
consisted of less than 5 percent of total international landings of 
shortfin mako sharks. As such, the added reduction in landings by 
implementing the 83 inch FL minimum size limit for both sexes would 
result in a minimal reduction of total international landings while 
greatly impacting the U.S. recreational fishery. Furthermore, any 
increases in shortfin mako landings under Alternative B2 would consist 
solely of male sharks as the minimum size limit for female sharks would 
remain the same.
    This increase in the minimum size limit is projected to reduce 
recreational landings by at least 65 percent in numbers of sharks 
landed, and 50 percent in the weight of sharks landed. While this 
alternative would not establish a shortfin mako fishing season, such a 
significant increase in the minimum size limit would likely result in 
some reduction in directed fishing effort for shortfin mako sharks. 
Effort data collected via the LPS suggests there has been a significant 
reduction in directed fishing trips targeting shortfin mako sharks 
compared to the five year average under the 83 inch size limit 
implemented by the emergency interim final rule. Estimates of directed 
trips for shortfin mako sharks declined by 34 percent compared to the 
six year average from 2012 through 2017 resulting in greater than 
projected reductions in shortfin mako shark landings. This time period 
(June through August) traditionally accounts for over 90 percent of 
directed trips for shortfin mako sharks. Based on the LPS data from 
2012-2017, shortfin mako sharks were the primary target species in 
approximately 67 percent of trips that caught and 75 percent of trips 
that landed them. As such, a reduction in directed fishing effort could 
substantially reduce the landings expected under this alternative. 
While this alternative is unlikely to affect directed effort as 
significantly as the 83 inch size limit, NMFS anticipates directed 
effort will not fully recover to previous levels.
    Under Alternative B3, the minimum size limit for retention of 
shortfin mako sharks would be increased to 83 inches FL for both males 
and female sharks consistent with the measure implemented in the 
emergency rule. Assuming no reduction in directed fishing effort, this 
increase in the minimum size limit would result in an 83 percent 
reduction in the number of sharks landed, and a 69 percent reduction in 
the weight of sharks landed. Such a large increase in the minimum size 
limit and associated reduction in landings is unlikely to have no 
effect on directed fishing effort, in fact, an approximately 34 percent 
reduction in directed effort was observed in the summer of 2018 
following the implementation of this size limit under the emergency 
interim final rule. An 83 percent reduction in shortfin mako sharks 
harvested would thus reduce the percentage of directed trips harvesting 
them by about 6 percent. At least three tournaments directed at 
shortfin mako sharks in the Northeast chose to cancel 2018 events due 
to the more stringent current 83 inches FL minimum size limit. 
Tournaments account for over half of directed recreational trips for 
shortfin mako sharks, and 77 percent of them in the month of June when 
effort is at its highest. This could result in a substantial reduction 
in directed fishing trips for shortfin mako sharks, thus leading to 
moderate adverse economic impacts on some charter/headboats and 
tournament operators. NMFS no longer prefers Alternative B3 at this 
time as reduction in directed fishing effort following implementation 
of the emergency interim final rule suggests this alternative may be 
more restrictive than needed to achieve the reductions targets 
recommended by ICCAT, and could place an undue burden on the 
recreational fishery.
    Under Alternative B4, recreational HMS permit holders would only be 
allowed to retain male shortfin mako sharks that measure at least 71 
inches FL and female shortfin mako sharks that measure at least 108 
inches FL. Assuming no reduction in directed fishing effort, this 
increase in the minimum size limit would result in a 77 percent 
reduction in the number of sharks landed. A 73 percent reduction in 
shortfin mako sharks harvested would thus reduce the percentage of 
directed trips harvesting them to approximately 9 percent. This could 
result in a significant reduction in directed fishing trips for 
shortfin mako sharks, thus leading to moderate adverse economic impacts 
on some charter/headboats and tournament operators.
    Under Alternative B5, recreational HMS permit holders would only be 
allowed to retain male shortfin mako sharks that measure at least 71 
inches FL and female shortfin mako sharks that measure at least 120 
inches FL. Assuming no reduction in directed fishing effort, this 
increase in the size

[[Page 5373]]

limit would result in a 78 percent reduction in the number of sharks 
landed, and a 74 percent reduction in the weight of sharks landed. A 78 
percent reduction in shortfin mako sharks harvested would thus reduce 
the percentage of directed trips harvesting them to 8.6 percent. This 
could result in a significant reduction in directed fishing trips for 
shortfin mako sharks, thus leading to moderate adverse economic impacts 
on some charter/headboats and tournament operators.
    Under Alternative B6a, the minimum size limit for the retention of 
shortfin mako sharks would be increased from 54 inches FL to 71 inches 
FL for male and 83 inches FL for female shortfin mako sharks, and a 
shortfin mako fishing season would be established from May through 
October. The fishing season established under this alternative would 
have little to no effect on shortfin mako fishing activity in the 
Northeast, but may reduce fishing effort in the South Atlantic and Gulf 
of Mexico regions; however, a lack of data on targeted trips for 
shortfin mako sharks in this region makes any assessment of potential 
socioeconomic impacts difficult. However, this combination of increase 
in the size limit and fishing season is projected to reduce 
recreational landings by at least 65 percent in numbers of sharks 
landed, and 50 percent in the weight of sharks landed in the Northeast. 
A 65 percent reduction in shortfin mako sharks harvested would thus 
reduce the percentage of directed trips harvesting them to 13 percent. 
This reduction on directed trips could lead to moderate adverse 
economic impacts on some charter/headboats and tournament operators. 
NMFS does not prefer this alternative at this time, as it is unlikely 
to result in significantly greater reductions in landings than the 
preferred alternative, Alternative B2, and could potentially result in 
regional inequalities in access to the recreational shortfin mako shark 
fishery due to difference in seasonal abundance.
    Under Alternative B6b, NMFS would establish a three-month fishing 
season for shortfin mako sharks spanning the summer months of June 
through August. This season would be combined with a 71-inch FL minimum 
size limit for males and 100 inch minimum size FL for females. Based on 
estimates from the LPS, on average 475 directed trips are taken for 
shortfin mako sharks each September and October, representing 
approximately 9 percent of all annual directed trips. No registered HMS 
tournaments held in September and October target sharks exclusively, so 
it is highly unlikely this alternative would result in the rescheduling 
of any tournaments due to the fishing season. It is much more likely 
that directed fishing effort would be affected by the increases in the 
minimum size limits. Assuming this increase in the size limit has 
minimal effect on fishing effort directly towards shortfin mako sharks 
within the season, this combination of season and increase in the size 
limit should result in a 79 percent reduction in the number of sharks 
landed, and a 74 percent reduction in the weight of sharks landed. This 
reduction could result in a significant reduction in directed fishing 
trips for shortfin mako sharks, thus leading to moderate adverse 
economic impacts on some charter/headboat operators. NMFS does not 
prefer this alternative at this time as observed reductions in directed 
fishing effort following implementation of the emergency interim rule 
suggest this alternative may be more restrictive than is needed to meet 
the 72 to 79 percent reduction targets recommended by ICCAT.
    Under Alternative B6c, NMFS would establish a two-month fishing 
season for shortfin mako sharks for the months of June and July. This 
season would be combined with a 71-inch FL minimum size limit for males 
and 90-inch minimum sizes FL for females. Based on estimates from the 
LPS, on average 1,264 directed trips are taken for shortfin mako sharks 
each August through October, representing approximately 26 percent of 
all annual directed trips. Only two registered HMS tournaments held in 
August through October target sharks exclusively, one out of New York 
that primarily targets thresher sharks and one out of Florida where 
participants fish exclusively from shore. Thus, it is highly unlikely 
this alternative would result in the rescheduling of any tournaments 
due to the fishing season. It is likely that directed fishing effort 
would also be affected by the increases in the minimum size limits. 
Assuming this increase in the size limit has minimal effect on fishing 
effort directly towards shortfin mako sharks within the season, this 
combination of season and increase in the size limit should result in a 
77 percent reduction in the number of sharks landed, and a 69 percent 
reduction in the weight of sharks landed. Such a large increase in the 
size limit and associated reduction in landings is unlikely to have no 
effect on directed fishing effort. A 77 percent reduction in shortfin 
mako sharks harvested would thus reduce the percentage of directed 
trips harvesting them to 8 percent. This reduction in directed trips 
could lead to moderate adverse economic impacts on some charter/
headboats and tournament operators. NMFS does not prefer this 
alternative at this time as observed reductions in directed fishing 
effort following implementation of the emergency interim rule suggest 
this alternative may be more restrictive than is needed to meet the 72 
to 79 percent reduction targets recommended by ICCAT.
    Under Alternative B6d, NMFS would establish a one-month fishing 
season for shortfin mako sharks for the month of June only. This season 
would be combined with a 71 inches FL minimum size limit for males and 
83 inches FL for females. Based on estimates from the LPS, on average 
2,435 directed trips are taken for shortfin mako sharks each July 
through October, representing approximately 52 percent of all annual 
directed trips. Additionally, there are seven registered HMS 
tournaments held in July through October that target sharks 
exclusively, including three of four tournaments held in the state of 
Rhode Island, and the only tournament in Massachusetts to target sharks 
exclusively. It is likely that directed fishing effort would also be 
affected by the increases in the minimum size limits. Assuming this 
increase in the size limit has minimal effect on fishing effort 
directly towards shortfin mako sharks within the season, this 
combination of season and increase in the size limit should result in 
an 80 percent reduction in the number of sharks landed, and a 76 
percent reduction in the weight of sharks landed. Such a large increase 
in the size limit and associated reduction in landings is unlikely to 
have no effect on directed fishing effort. An 80 percent reduction in 
shortfin mako sharks harvested would thus reduce the percentage of 
directed trips harvesting them to 8 percent. This reduction in directed 
trips could lead to moderate adverse economic impacts on some charter/
headboats and tournament operators.
    Under Alternative B6e, NMFS would establish a process and criteria 
for determining season dates and minimum size limits for shortfin mako 
sharks on an annual basis through inseason actions. This process would 
be similar to how the agency sets season opens and retention limits for 
the shark commercial fisheries and the Atlantic Tunas General category 
fishery. NMFS would review data on recreational landings, catch rates, 
and effort levels for shortfin mako sharks in the previous years, and 
establish season dates and minimum size limits that would be

[[Page 5374]]

expected to achieve the reduction targets established by ICCAT, and the 
objectives of the HMS fisheries management plan. This alternative would 
also allow NMFS to minimize adverse economic impacts to the HMS 
recreational fishery by allowing for adjustments to the season and size 
limits based on observed reductions and redistribution of fishing 
effort resulting from measures implemented in previous years. NMFS does 
not prefer this alternative at this time as the establishment of a 
shortfin mako shark fishing season has the potential to create regional 
inequalities in access to the fishery given its wide spatial and 
temporal nature as a highly migratory species. These potential 
inequalities would appear to be unjustified as there are alternatives 
available that are capable of meeting the reductions recommended by 
ICCAT without them.
    Under Alternative B7, NMFS would implement a ``slot limit'' for 
shortfin mako sharks in the recreational fishery. Under a slot limit, 
recreational fishermen would only be allowed to retain shortfin mako 
sharks within a narrow size range (e.g., between 71 and 83 inches FL) 
with no retention above or below that slot. Assuming no reduction in 
directed fishing effort, this alternative would be expected to result 
in similar reductions in landings as other alternatives analyzed here. 
While this alternative would not establish a shortfin mako fishing 
season, as described above in earlier alternatives, such a significant 
increase in the size limit would likely result in some reduction in 
directed fishing effort for shortfin mako sharks and shifting focus to 
other HMS species. This reduction in effort may be further exacerbated 
by the complicated nature of slot limits regulations. The amount of 
effort reduction by recreational fishermen would depend on how much HMS 
anglers and tournaments are satisfied to practice catch-and-release 
fishing for sub-legal shortfin mako sharks or shift their fishing 
effort to other species. NMFS does not prefer this alternative at this 
time as there are less complicated options available that are capable 
of meeting the mortality reductions recommended by ICCAT.
    Under Alternative B8, NMFS would establish a landings tag 
requirement and a yearly limit on the number of landings tags assigned 
to a vessel, for shortfin mako sharks over the minimum size limit. This 
requirement would be expected to negatively affect fishing effort. An 
increase in the minimum size limit and a yearly cap on landings for 
vessels would reduce effort drastically, while maintaining some 
opportunity for the recreational fleet. This effort reduction would 
adversely affect the charter fleet the most by limiting the number of 
trips on which they could land shortfin mako sharks each year. This 
effort reduction may also affect their ability to book trips. At least 
one tournament directed at shortfin mako sharks in the Northeast chose 
to cancel its 2018 event due to the more stringent current 83-inch FL 
minimum size limit. By excluding tournaments from a landings tag 
requirement there may be a direct beneficial economic impact for 
tournaments, as this would be an additional opportunity, beyond their 
tags, to land shortfin mako sharks for permit holders.
    Alternative B9, the preferred alternative, would expand the 
requirement to use non-offset, non-stainless steel circle hook by all 
HMS permit holders with a shark endorsement when fishing for sharks 
recreationally, except when fishing with flies or artificial lures, in 
federal waters. Currently, this requirement is in place for all 
federally managed waters south of 41[deg]43' N latitude (near Chatham, 
Massachusetts), but this alternative would remove the boundary line, 
requiring fishermen in all areas to use circle hooks. Recreational 
shark fishermen north of Chatham, Massachusetts would need to purchase 
circle hooks to comply with this requirement, although the cost is 
modest. Additionally, it is possible that once the circle hook 
requirement is expanded, fishermen in the newly impacted area could 
find reduced catch rates of sharks including shortfin mako sharks. If 
reduced catch rates are realized, effort in the recreational shark 
fishery, including the for-hire fleet, could be impacted by reduced 
number of trips or reduced demand for chartered trips.
    Alternative B10 would place shortfin mako sharks on the prohibited 
sharks list to prohibit the retention of shortfin mako sharks in 
recreational HMS fisheries. HMS permit holders would be prohibited from 
retaining or landing shortfin mako sharks recreationally. In 
recreational fisheries, recreational fishermen would only be authorized 
to catch and release shortfin mako sharks. A prohibition on the 
retention of shortfin mako sharks is likely to disincentivize some 
portion of the recreational shark fishery, particularly those 
individuals that plan to target shortfin mako sharks. Businesses that 
rely of recreational shark fishing such as and tournament operators and 
charter/headboats may experience a decline in demand resulting in 
adverse economic impacts. NMFS does not prefer this alternative at this 
time as it would prohibit all retention of shortfin mako sharks in the 
recreational fishery. As such, Alternative B10 would create unnecessary 
inequalities between the commercial and recreational fishing sectors 
when other alternatives are available that can achieve the ICCAT 
recommended landings reduction in a more equitable fashion.
    Alternative C1, the preferred alternative, would make no changes to 
the current reporting requirements applicable to shortfin mako sharks 
in HMS fisheries. Since there would be no changes to the reporting 
requirements under this alternative, NMFS would expect fishing 
practices to remain the same and direct economic impacts in small 
entities to be neutral in the short-term.
    Under Alternative C2, NMFS would require vessels with a directed or 
incidental shark LAP to report daily the number of shortfin mako sharks 
retained and discarded dead, as well as fishing effort (number of sets 
and number of hooks) on a VMS. A requirement to report shortfin mako 
shark catches on VMS for vessels with a shark LAP would be an 
additional reporting requirement for those vessels on their existing 
systems. For other commercial vessels that are currently only required 
to report in the HMS logbook, the requirement would mean installing VMS 
to report dead discards of shortfin mako and fishing effort.
    If a vessel has already installed a type-approved E-MTU VMS unit, 
the only expense would be monthly communication service fees, which it 
may already be paying if the vessel is participating in a Council-
managed fishery. Existing regulations require all vessel operators with 
E-MTU VMS units to provide hail out/in declarations and provide 
location reports on an hourly basis at all times while they are away 
from port. In order to comply with these regulations, vessel owners 
must subscribe to a communication service plan that includes an 
allowance for sending similar declarations (hail out/in) describing 
target species, fishing gear possessed, and estimated time/location of 
landing using their E-MTU VMS. Given that most shortfin mako sharks are 
incidentally caught by pelagic longline vessels that are already 
required to have an E-MTU VMS system onboard, adverse economic impacts 
are not expected. If vessels with a shark LAP do not have an E-MTU VMS 
unit, direct, economic costs are expected as a result of having to pay 
for the E-MTU VMS unit (approximately $4,000) and a qualified marine 
electrician to install the unit ($400).

[[Page 5375]]

VMS reporting requirements under this alternative could potentially 
provide undue burden to HMS commercial vessels that already report on 
catches, landings, and discards through vessel logbooks, dealer 
reports, and observer reports.
    Alternative C3 would implement mandatory reporting of all 
recreational interactions (landed and discarded) of shortfin mako 
sharks in HMS fisheries. Recreational HMS permit holders would have a 
variety of options for reporting shortfin mako shark landings including 
a phone-in system, internet website, and/or a smartphone app. HMS 
Angling and Charter/Headboat permit holders currently use this method 
for required reporting of each individual landing of bluefin tuna, 
billfish, and swordfish within 24 hours. NMFS has also maintained a 
shortfin mako shark reporting app as an educational tool to encourage 
the practice of catch-and-release. Additionally, the potential burden 
associated with mandatory landings reports for shortfin mako sharks 
would be significantly reduced under the increased minimum size limits 
being considered in this rulemaking, although would still represent an 
increased burden over current reporting requirements. While HMS Angling 
permit holders are not considered small entities by NMFS for purposes 
of the Regulatory Flexibility Act, Charter/Headboat permit holders are 
considered to be small entities and would be potentially impacted by 
this alternative.
    Under Alternative D1, NMFS would not establish a rebuilding plan or 
the foundation for rebuilding the shortfin mako shark stock. NMFS would 
still implement management measures in the HMS recreational and 
commercial fisheries to end overfishing consistent with the Magnuson-
Stevens Act and with ICCAT Recommendation 17-08 and our obligations 
under ATCA. There would likely be no direct short-term impact on small 
entities from this alternative as there would be no change in fishing 
effort or landings of shortfin mako sharks that would impact revenues 
generated from the commercial and recreational fisheries.
    Under Alternative D2, NMFS would establish a domestic rebuilding 
plan independent of a rebuilding plan adopted by ICCAT. While such an 
alternative could avoid overfishing shortfin mako sharks in the United 
States by changing the way that the U.S. recreational and commercial 
fisheries operate, such a plan could not effectively rebuild the stock, 
since U.S. catches are only 9 percent of the reported catch Atlantic-
wide. Such an alternative would be expected to cause short- and long-
term direct economic impacts.
    Under Alternative D3, the preferred alternative, NMFS would take 
preliminary action toward rebuilding by adopting measures to end 
overfishing to establish the foundation for a rebuilding plan. NMFS 
would then take action at the international level through ICCAT to 
develop a rebuilding plan for shortfin mako sharks. ICCAT may establish 
a rebuilding plan for shortfin mako sharks in 2019, and this rebuilding 
plan would encompass the objectives set forth by ICCAT based on 
scientific advice from the SCRS. This alternative would not result in 
any changes to the current recreational and commercial domestic 
regulations for shortfin mako sharks in the short-term. There would 
likely be no direct short-term impact on small entities from this 
alternative as there would be no change in fishing effort or landings 
of shortfin mako sharks that would impact revenues generated from the 
commercial and recreational fisheries. Management measures to address 
overfishing of shortfin mako sharks could be adopted in the future. 
These measures could change the way that the U.S. recreational and 
commercial shortfin mako shark fishery operates, which could cause 
long-term direct economic impacts. Any future action to implement 
international measures would be analyzed in a separate rulemaking.
    Under Alternative D4, NMFS would remove shortfin mako sharks from 
the commercial pelagic shark management group and would implement a 
species-specific quota for shortfin mako sharks as established by 
ICCAT. A shortfin mako-specific quota would likely include both 
commercial and recreational catches, as do other ICCAT established 
quotas. In addition, NMFS would establish a new commercial pelagic 
shark species quota for common thresher and oceanic whitetip sharks 
based on recent landings. The 2017 ICCAT stock assessment indicated 
that the North Atlantic population of shortfin mako sharks is 
overfished and experiencing overfishing. In November 2017, ICCAT 
adopted management measures (Recommendation 17-08) to address the 
overfishing determination, but did not recommend a TAC necessary to 
stop overfishing of shortfin mako sharks. Therefore, it is difficult at 
this time to determine how setting a species-specific quota for 
shortfin mako sharks would affect commercial and recreational fishing 
operations. However, this species-specific quota may provide long-term 
direct, minor adverse economic impacts if ICCAT established a TAC for 
the United States that is well below the total average harvest by the 
United States (i.e., 330 mt ww or 168 mt dw) or below the current 
annual commercial quota for common thresher, oceanic whitetip, and 
shortfin mako (488 mt dw) as it could potentially limit the amount of 
harvest for fishermen. Short-term direct socioeconomic impacts would be 
neutral for Alternative D4 because initially there would be no 
reduction in fishing effort and practices.
    Under Alternative D5, NMFS would take steps to implement area-based 
management measures domestically if such measures are established by 
ICCAT. ICCAT Recommendation 17-08 calls on the SCRS to provide 
additional scientific advice in 2019 that takes into account a spatial/
temporal analysis of North Atlantic shortfin mako shark catches in 
order to identify areas with high interactions. Without a specific area 
to analyze at this time, the precise impacts on commercial and 
recreational fishery operations cannot be determined. Implementing area 
management for shortfin mako sharks, if recommended by the scientific 
advice, could lead to a reduction in localized fishing effort, which 
would likely have adverse economic impacts for small entities that land 
shortfin mako sharks.
    Under Alternative D6, NMFS would annually allocate a specific 
number of ``allowable'' dead discards of shortfin mako sharks as a 
bycatch cap or sub-annual catch limit (ACL) that would apply to all 
fisheries, not just HMS fisheries. This alternative would impact the 
HMS pelagic longline and shark recreational fisheries similar to 
Alternative D4. However, this alternative could also impact non-HMS 
fisheries by closing those fisheries if the bycatch cap were reached. 
This alternative could lead to short-term adverse impacts since the 
bycatch caps could close fisheries if they are reached until those 
fishermen could modify fishing behavior to avoid shortfin mako sharks 
(even in fisheries where shortfin mako sharks are rarely, if ever, 
seen) and reduce interactions. In the long-term, this alternative would 
have neutral impacts as the vessels would avoid shortfin mako sharks. 
The impacts to small businesses are expected to be neutral in the short 
and long-term as their businesses would not change.
    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

[[Page 5376]]

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, NMFS has 
prepared a listserv summarizing fishery information and regulations for 
Atlantic shark fisheries for 2019. This listserv also serves as the 
small entity compliance guide. Copies of the compliance guide are 
available from NMFS (see ADDRESSES).
    NMFS prepared a FEIS for this final rule that discusses the impact 
on the environment that would result from this rule. A copy of the FEIS 
is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 635

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

    Dated: February 15, 2019.
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.  635.2, revise definition of ``FL (fork length)'' to read as 
follows:


Sec.  635.2  Definitions.

* * * * *
    FL (fork length) means the straight-line measurement of a fish from 
the midpoint of the anterior edge of the fish to the fork of the caudal 
fin. The measurement is not made along the curve of the body.
* * * * *

0
3. In Sec.  635.20, lift the suspension on paragraph (e)(2) and 
revising it and by adding paragraph (e)(6) to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (e) * * *
    (2) All sharks, except as otherwise specified in paragraphs (e)(3) 
through (6) of this section, landed under the recreational retention 
limits specified at Sec.  635.22(c)(2) must be at least 54 inches (137 
cm) FL.
* * * * *
    (6) For North Atlantic shortfin mako sharks landed under the 
recreational retention limits specified at Sec.  635.22(c)(2), males 
must be at least 71 inches (180 cm) fork length, and females must be at 
least 83 inches (210 cm) fork length.
* * * * *

0
4. Amend Sec.  635.21 by:
0
a. Adding paragraphs (a)(4), (c)(1)(iv), and (d)(5);
0
b. Revising paragraphs (f)(2) and (3);
0
c. Adding paragraph (g)(6); and
0
d. Revising (k)(1) and (2).
    The additions and revisions read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

    (a) * * *
    (4) Any person on board a vessel that is issued a commercial shark 
permit must release all shortfin mako sharks, whether alive or dead, 
caught with any gear other than pelagic longline, bottom longline, or 
gillnet gear, except that any person on board a vessel that is issued a 
commercial shark permit in combination with a permit that has a shark 
endorsement may retain shortfin mako sharks subject to the recreational 
minimum size limits in Sec.  635.20, the recreational retention limits 
in Sec.  635.22, and authorized gear requirements in Sec.  635.19.
* * * * *
    (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. 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.
* * * * *
    (d) * * *
    (5) If a vessel issued or required to be issued a permit under this 
part has bottom 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.
* * * * *
    (f) * * *
    (2) A person on board a vessel that has been issued or is required 
to be issued a permit with a shark endorsement under this part and who 
is participating in an HMS registered tournament that bestows points, 
prizes, or awards for Atlantic sharks must deploy only non-offset, 
corrodible circle hooks when fishing for, retaining, possessing, or 
landing sharks, except when fishing with flies or artificial lures.
    (3) A person on board a vessel that has been issued or is required 
to be issued an HMS Angling permit with a shark endorsement or an HMS 
Charter/Headboat permit with a shark endorsement must deploy only non-
offset, corrodible circle hooks when fishing for, retaining, 
possessing, or landing sharks, except when fishing with flies or 
artificial lures.
* * * * *
    (g) * * *
    (6) If a vessel issued or required to be issued a permit under this 
part has gillnet gear onboard, 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.
* * * * *
    (k) * * *
    (1) A person on board a vessel that has been issued or is required 
to be issued a permit with a shark endorsement under this part and who 
is participating in an HMS registered tournament that bestows points, 
prizes, or awards for Atlantic sharks must deploy only non-offset, 
corrodible circle hooks when fishing for, retaining, possessing, or 
landing sharks, except when fishing with flies or artificial lures.
    (2) A person on board a vessel that has been issued or is required 
to be issued an HMS Angling permit with a shark endorsement or a person 
on board a vessel with an HMS Charter/Headboat permit with a shark 
endorsement must deploy only non-offset, corrodible circle hooks when 
fishing for, retaining, possessing, or landing, except when fishing 
with flies or artificial lures.
* * * * *

0
5. In Sec.  635.22, revise paragraph (c)(1) and add paragraph (c)(7) as 
follows:


Sec.  635.22  Recreational Retention Limits.

    (c) * * *
    (1) The recreational retention limit for sharks applies to any 
person who fishes in any manner on a vessel that has been issued or is 
required to have been issued a permit with a shark endorsement, except 
as noted in paragraph (c)(7) of this section. The retention limit can 
change depending on the species being caught and the size limit under 
which they are being caught as specified under Sec.  635.20(e). A 
person on board a vessel that has been issued or is required to be 
issued a permit with a shark endorsement under Sec.  635.4 is required

[[Page 5377]]

to use non-offset, corrodible circle hooks as specified in Sec.  
635.21(f) and (k) in order to retain sharks per the retention limits 
specified in this section.
* * * * *
    (7) For persons on board vessels issued both a commercial shark 
permit and a permit with a shark endorsement, the recreational 
retention limit and sale prohibition applies for shortfin mako sharks 
at all times, even when the commercial pelagic shark quota is open. If 
such vessels retain a shortfin mako shark under the recreational 
retention limit, all other sharks retained by such vessels may only be 
retained under the applicable recreational retention limits and may not 
be sold. If a commercial Atlantic shark quota is closed under Sec.  
635.28(b), the recreational retention limit for sharks and no sale 
provision in paragraph (a) of this section will be applied to persons 
aboard a vessel issued a Federal Atlantic commercial shark vessel 
permit under Sec.  635.4(e), if that vessel has also been issued a 
permit with a shark endorsement under Sec.  635.4(b) and is engaged in 
a for-hire fishing trip or is participating in a registered HMS 
tournament per Sec.  635.4(c)(2).
* * * * *

0
6. In Sec.  635.24, lift the suspension on paragraphs (a)(4)(i) and 
(iii), and revise them to read as follows:


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

* * * * *
    (a) * * *
    (4) * * *
    (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 the shark is dead at the time of 
haulback and consistent with the provisions of Sec.  635.21(c)(1), 
(d)(5), and (g)(6) and 635.22(c)(7).
* * * * *
    (iii) Consistent with paragraph (a)(4)(ii) of this section, a 
person who owns or operates a vessel that has been issued an incidental 
shark LAP may retain, possess, land, or sell no more than 16 SCS and 
pelagic sharks, combined, per vessel per trip, if the respective 
fishery is open per Sec. Sec.  635.27 and 635.28. Of those 16 SCS and 
pelagic sharks per vessel per trip, no more than 8 shall be blacknose 
sharks. Shortfin mako sharks may only be retained under the commercial 
retention limits by persons using pelagic longline, bottom longline, or 
gillnet gear, only if 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).
* * * * *

0
7. In Sec.  635.30, paragraph (c)(4) is revised to read as follows:
* * * * *
    (c) * * *
    (4) Persons aboard a vessel that has been issued or is required to 
be issued a permit with a shark endorsement must maintain a shark 
intact through landing and offloading with the head, tail, and all fins 
naturally attached. The shark may be bled and the viscera may be 
removed.
* * * * *

0
8. In Sec.  635.71, revise paragraphs (d)(22), (23), (27), (28), and 
(29) to read as follows:


Sec.  635.71  Prohibitions.

* * * * *
    (d) * * *
    (22) Except when fishing only with flies or artificial lures, fish 
for, retain, possess, or land sharks without deploying non-offset, 
corrodible circle hooks when fishing at a registered recreational HMS 
fishing tournament that has awards or prizes for sharks, as specified 
in Sec.  635.21(f) and (k).
    (23) Except when fishing only with flies or artificial lures, fish 
for, retain, possess, or land sharks without deploying non-offset, 
corrodible circle hooks when issued an Atlantic HMS Angling permit or 
HMS Charter/Headboat permit with a shark endorsement, as specified in 
Sec.  635.21(f) and (k).
* * * * *
    (27) Retain, land, or possess a shortfin mako shark that was caught 
with gear other than pelagic longline, bottom longline, or gillnet gear 
as specified at Sec.  635.21(a).
    (28) Retain, land, or possess a shortfin mako shark that was caught 
with pelagic longline, bottom longline, or gillnet gear and was alive 
at haulback as specified at Sec.  635.21(c)(1), (d)(5), and (g)(6).
    (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 
compliance with the requirements at Sec.  635.9.
* * * * *
[FR Doc. 2019-02946 Filed 2-20-19; 8:45 am]
BILLING CODE 3510-22-P