[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]
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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.
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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