[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Proposed Rules]
[Pages 21077-21082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07659]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 220405-0084]
RIN 0648-BL17


Atlantic Highly Migratory Species; Shortfin Mako Shark Retention 
Limit

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to implement a flexible shortfin mako shark 
retention limit with a default limit of zero in commercial and 
recreational Atlantic highly migratory species (HMS) fisheries. NMFS 
proposes to leave the default limit of zero in place unless and until 
changed. Changes to the retention limit could only be made based on 
regulatory criteria and only if consistent with an allowable retention 
determination made by the International Commission for the Conservation 
of Atlantic Tunas (ICCAT) pursuant to Recommendation 21-09. This action 
is necessary to implement the binding recommendation of ICCAT adopted 
in 2021, as authorized under the Atlantic Tunas Convention Act (ATCA), 
and to achieve domestic management objectives under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES: Written comments must be received by May 11, 2022. NMFS will 
hold a public hearing via conference call and webinar for this proposed 
rule on April 27, 2022, from 2 p.m. to 5 p.m. EDT. For webinar 
registration information, see the SUPPLEMENTARY INFORMATION section of 
this document.

ADDRESSES: Electronic copies of this proposed rule and supporting 
documents are available from the HMS Management Division website at 
https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.
    You may submit comments on this document, identified by NOAA-NMFS-
2022-0015, by electronic submission. Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter ``NOAA-NMFS-2022-0015'' in the Search 
box. Click on the ``Comment'' icon, complete the required fields, and 
enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the close of the comment 
period, may not be considered by NMFS. All comments received are a part 
of the public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff 
([email protected]) or Guy DuBeck ([email protected]) at 301-
427-8503.

SUPPLEMENTARY INFORMATION: North Atlantic shortfin mako sharks are 
managed primarily under the authority of the Magnuson-Stevens Act (16 
U.S.C. 1801 et seq.), as well as under ATCA (16 U.S.C. 971 et seq.) 
because they are primarily caught in fisheries for tuna and tuna-like 
species. Like other Atlantic highly migratory species, North Atlantic 
shortfin mako sharks are managed under the 2006 Consolidated Atlantic 
HMS Fishery Management Plan (2006 Consolidated HMS FMP) and its 
amendments, implemented by regulations at 50 CFR part 635.
    NMFS has prepared an Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and an Initial Regulatory Flexibility Analysis 
(IRFA), which analyze the anticipated environmental, social, and 
economic impacts of several alternatives for each of the major issues 
contained in this proposed rule. A brief summary of the alternatives 
considered and the background of this proposed rule are provided below. 
Additional information regarding this rule and overall Atlantic shark 
management can be found in the draft EA/RIR/IRFA, the 2006 Consolidated 
HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery 
Evaluation (SAFE) Reports, and online at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.
    A copy of the draft EA/RIR/IRFA prepared for this proposed rule is 
available from NMFS (see ADDRESSES).

Recent ICCAT Shortfin Mako Shark Stock Assessments and Recommendations

    The North Atlantic shortfin mako shark (Isurus oxyrinchus) is a 
highly migratory species that ranges across the entire North Atlantic 
Ocean and is caught by vessels from numerous countries. The stock is 
predominantly caught in association with fisheries that primarily 
target tunas and tuna-like species. While these sharks have been a 
valued component of U.S. recreational and commercial fisheries, U.S. 
catch represents only a small portion of the species' total catch in 
the North Atlantic by all reporting countries. International measures 
are, therefore, critical to effective conservation and management of 
the species.
    In 2017, ICCAT's scientific body, the Standing Committee on 
Research and Statistics (SCRS), conducted a benchmark stock assessment 
for North Atlantic shortfin mako sharks. ICCAT accepted the assessment 
and adopted new management measures for the stock in ICCAT fisheries 
(Recommendation 17-08). These measures largely focused on maximizing 
live releases of North Atlantic shortfin mako sharks, allowing 
retention only in certain limited circumstances, increasing minimum 
size limits, and improving data collection. Further details are 
available in Amendment 11 to the 2006 Consolidated HMS FMP (Amendment 
11; 84 FR 5358, February 21, 2019). Following the SCRS assessment, NMFS 
applied domestic stock status determination criteria in 2017 and 
determined the stock to be overfished and experiencing overfishing.
    In 2019, the SCRS completed a North Atlantic shortfin mako shark 
stock assessment update and provided additional rebuilding information 
that reflected rebuilding timeframes of two mean generation times 
(through 2070). Following the update, ICCAT adopted Recommendation 19-
06, which maintained the shortfin mako shark management measures in 
Recommendation 17-08 and called for the development of additional 
measures in order to establish a rebuilding plan with a high 
probability of avoiding overfishing and rebuilding the stock to biomass 
at maximum sustainable yield (BMSY) within a timeframe that 
takes into account the biology of the stock.
    Given that Recommendation 19-06 called for the development of 
additional measures in order to establish a rebuilding plan, ICCAT at 
the November

[[Page 21078]]

2021 annual meeting adopted additional management measures for North 
Atlantic shortfin mako sharks in Recommendation 21-09. This 
recommendation prohibits retention of North Atlantic shortfin mako 
sharks caught in association with ICCAT fisheries in 2022 and 2023. 
Limited retention of shortfin mako sharks may be allowed in 2023 and 
future years if ICCAT determines that fishing mortality is at a low 
enough level North Atlantic-wide to allow retention consistent with the 
conservation objectives of the recommendation. The recommendation aims 
to limit total North Atlantic-wide shortfin mako shark fishing 
mortality to no more than 250 metric tons (mt), which, the 
recommendation states, is consistent with the conservation objectives 
and the 2019 SCRS Kobe matrix, meaning that, at that level of fishing 
mortality, it is expected that overfishing would not be occurring 
(fishing mortality rate (F) < FMSY) and the stock would not 
be overfished (spawning stock fecundity (SSF) > SSFMSY). The 
SCRS will calculate the annual retention possibility each year based on 
reported dead discards; live releases; and, where allowed, earlier 
retention of shortfin mako sharks (with the SCRS providing estimates 
for any data gaps), and subtracting the amount of that fishing 
mortality from 250 mt. If applicable, the SCRS will also calculate 
eligible parties' individual retention allowances each year, based on 
the overall retention allowance and average annual catches from 2013 
through 2016. The recommendation also calls on the SCRS and Panel 4 to 
test and confirm the appropriateness of the approach for allowing 
retention. The process and possible retention for 2023 will be 
discussed at an ICCAT Panel 4 intersessional meeting and at the annual 
meeting, both in November 2022.
    Recommendation 21-09 also includes minimum standards for safe 
handling and release procedures and enhanced reporting and compliance 
requirements, which are consistent with existing HMS regulations and do 
not require additional rulemaking for U.S. implementation. The 
recommendation calls on the SCRS to continue to prioritize research 
such as identifying mating, pupping and nursery grounds, and other high 
concentration areas of North Atlantic shortfin mako sharks, options for 
spatial-temporal measures, and mitigation measures. By 2024, the SCRS 
will advise ICCAT on whether size restrictions are effective tools to 
meet required mortality reductions. Future North Atlantic shortfin mako 
shark stock assessments are called for in 2024, 2029, and 2034.

Recent U.S. Shortfin Mako Shark Management

    Following the adoption of ICCAT Recommendation 17-08 and NMFS' 
determination that the North Atlantic shortfin mako shark stock is 
overfished with overfishing occurring, NMFS took action to implement 
the binding ICCAT recommendation to immediately address overfishing and 
begin to rebuild the shortfin mako shark stock. NMFS first published an 
emergency rule in 2018 (83 FR 8946, March 2, 2018; measures extended 
through March 2019, 83 FR 42452, August 22, 2018) followed by Amendment 
11, with a final rule issued in 2019 (84 FR 5358, February 21, 2019), 
to reduce fishing mortality of shortfin mako sharks in HMS commercial 
and recreational fisheries. These rules allowed retention only in 
certain limited circumstances, increased minimum size limits for 
retention in the recreational fisheries, and improved data collection. 
In commercial fisheries, Amendment 11 allowed retention of shortfin 
mako sharks with pelagic longline gear only if the shark is dead at 
haulback and there is a functional electronic monitoring system on 
board the vessel, consistent with the ICCAT requirement. Amendment 11 
also allowed retention of shortfin mako sharks caught with bottom 
longline or gillnet gear by persons issued a Directed or Incidental 
shark limited access permit (LAP) if the shark is dead at haulback, 
without an electronic monitoring requirement, given the small number of 
shortfin mako sharks that are caught in those fisheries and NMFS' 
determination that additional monitoring was not necessary. In 
recreational fisheries, Amendment 11 implemented an increase in the 
minimum size limit for the retention of shortfin mako sharks from 54 
inches fork length (FL) (137 cm FL) to 71 inches FL (180 cm FL) for 
male shortfin mako sharks and 83 inches FL (210 cm FL) for female 
shortfin mako sharks. Amendment 11 also expanded the requirement for 
the use of circle hooks to all recreational shark fisheries in order to 
reduce post-release mortality of shortfin mako sharks (the use of 
circle hooks was already required in recreational shark fisheries south 
of Chatham, MA, and for all pelagic longline and bottom longline 
vessels).
    At the time of the 2017 shortfin mako shark stock assessment and 
adoption of Recommendation 17-08, U.S. catches represented 
approximately 14 percent, on average, of total North Atlantic shortfin 
mako catch. The measures in the emergency rule and Amendment 11 were 
successful at reducing overall U.S. shortfin mako shark catch by 90 
percent from 2013-2017 average levels, to approximately 3 percent of 
total North Atlantic shortfin mako shark catch in 2020.

Proposed Measures

    In order to meet domestic management objectives, implement 
Recommendation 21-09, and acknowledge the possibility of future 
retention, NMFS is proposing to implement a flexible shortfin mako 
shark retention limit with a default limit of zero in commercial and 
recreational HMS fisheries. Consistent with current ICCAT provisions, 
the retention limit would be established as zero until Atlantic-wide 
catch levels are below 250 mt, a level that has a high probability of 
ending overfishing and starting to rebuild the stock. ICCAT determined 
that this measure was needed to bring catch levels down to or below 
that amount by all ICCAT parties, and thus was an important measure 
contributing to conservation and management of the stock. The shortfin 
mako shark retention limit per trip of zero would be in place unless 
and until changed after consideration of regulatory criteria and 
consistent with any ICCAT retention allowances pursuant to 
Recommendation 21-09. The retention limit per trip would apply to 
commercial vessels issued a Directed or Incidental shark LAP using 
pelagic longline, bottom longline, or gillnet gear, and to recreational 
HMS permit holders (those who hold HMS Angling or Charter/Headboat 
permits, and Atlantic Tunas General category and Swordfish General 
Commercial permits when participating in a registered HMS tournament). 
Under the default limit of zero and existing prohibitions for other 
gear types (see Sec. Sec.  635.21(a)(4) and 635.24(a)(4)(i) and (iii)), 
all commercial and recreational fishermen would be required to release 
all shortfin mako sharks, whether dead or alive at haulback.
    During the fishing year, based on consideration of the inseason 
trip limit adjustment criteria (Sec.  635.24(a)(8)) and to the extent 
any future retention is allowable as determined by ICCAT consistent 
with Recommendation 21-09, NMFS could increase the shortfin mako shark 
retention limit from the default, or subsequently decrease the 
retention limit, for the commercial fishery, the recreational fishery, 
or both. If a retention limit greater than zero is implemented for the 
commercial fishery, the current commercial shortfin mako shark 
restrictions would apply,

[[Page 21079]]

including allowing retention of shortfin mako sharks caught using only 
gillnet, bottom longline, or pelagic longline gear on properly-
permitted vessels, if the sharks are dead at haulback, and requiring 
vessels with pelagic longline gear to have a functional electronic 
monitoring system to retain shortfin mako sharks. Similarly, if a 
retention limit greater than zero is implemented for the recreational 
fishery, the current recreational shortfin mako shark restrictions 
would apply, including minimum size limits of 71 inches FL (180 cm FL) 
for male and 83 inches FL (210 cm FL) for female shortfin mako sharks. 
For vessels that hold both a commercial shark permit and a permit with 
a shark endorsement, the current requirements at Sec. Sec.  
635.22(c)(7) and 635.24(a)(4)(iii) would apply. Vessels that hold such 
combinations of permits are prohibited from selling shortfin mako 
sharks, are required to follow the recreational limits, and cannot sell 
any sharks if retaining shortfin mako sharks. While no upper retention 
limit is being set in this action, any increase in retention limit 
would need to be consistent with ICCAT recommendations and could only 
be implemented after considering the regulatory criteria.
    The flexible retention limit as proposed would apply in the HMS 
bottom longline and gillnet fisheries for sharks, although those 
fisheries are not considered to be ICCAT fisheries, which are defined 
as fisheries for tuna or tuna-like species under the current ICCAT 
Convention. This approach is consistent with the approach taken in 
Amendment 11, where NMFS determined it was appropriate to implement 
parallel management measures in the non-ICCAT shark fisheries given 
that the stock remained overfished with overfishing occurring. This 
approach would ensure consistency in HMS regulations, which will 
provide clarity for both the regulated community and for enforcement 
purposes and thus ensure more effective implementation. NMFS did not, 
however, implement the ICCAT requirement that electronic monitoring be 
onboard in these fisheries, because bottom longline and gillnet 
fisheries have minimal interactions with this species, and electronic 
monitoring was unnecessary to track such interactions effectively. 
Under this rule, after considering the measures implemented under 
Amendment 11 that considered the requirements of the Magnuson-Stevens 
Act, the status of shortfin mako sharks, and the need for consistency, 
NMFS is proposing to apply a flexible retention limit with a default of 
zero to these gears.
    Under this proposed rule, research and sampling of shortfin mako 
sharks would continue to be allowed under exempted fishing permits 
(EFPs) and scientific research permits (SRPs) (see Sec. Sec.  
635.27(b)(4) and 635.32). Collection of shortfin mako sharks under 
display permits would not be allowed, and collection of shortfin mako 
sharks for research under EFPs and/or SRPs would be considered on a 
case-by-case basis. Collection of shortfin mako sharks under EFPs and/
or SRPs could include sampling or limited retention where needed for 
scientific research. Only non-lethal sampling would be permitted on 
shortfin mako sharks that are alive at haulback. NMFS intends to limit 
any EFPs and/or SRPs to closely monitored studies and to limit the 
number of such permits and the number of sharks that may be sampled 
and/or retained. In recent years (2018-2021), NMFS has issued eight 
EFPs and related permits per year on average that include shortfin mako 
sharks, and zero to one shortfin mako sharks were retained per year 
under those permits. When retention is otherwise prohibited, any 
retention pursuant to an EFP and/or SRP would be accounted for under 
the applicable shark research and display quota. If retention is 
otherwise permitted consistent with ICCAT recommendations, NMFS would 
count any retention under EFPs and/or SRPs against the applicable ICCAT 
retention allowance. Research on shortfin mako sharks is critical to 
gathering scientific information about the stock and to help ensure 
that stock assessments have sufficient data. Permitted collection of 
shortfin mako sharks for scientific research would be consistent with 
the biological sampling and research needs described in Recommendation 
21-09 and other relevant ICCAT recommendations, as well as research 
needs identified by the SCRS, including to provide data for future 
shortfin mako shark stock assessments. For example, Recommendations 21-
09 and 13-10 provide for collection of biological samples of shortfin 
mako and other sharks that are dead at haulback during commercial 
fishing operations by scientific observers or individuals duly 
permitted by the ICCAT party. If NMFS receives EFP or SRP applications 
that are outside the scope described in this action, NMFS would provide 
notice to the public and solicit comments through the annual EFP notice 
of intent.
    NMFS is also proposing a minor modification to the pelagic longline 
gear restrictions at Sec.  635.21(c)(1)(iv) to further clarify the 
shortfin mako shark live release requirements.
    In addition to the proposed measures, in the EA for this action, 
NMFS analyzed a no action alternative that would maintain the current 
commercial and recreational shortfin mako shark regulations as 
implemented under Amendment 11, and an alternative to place shortfin 
mako sharks on the prohibited sharks list in the HMS regulations (see 
Sec. Sec.  635.24(a)(5), 635.34(c), and Table 1, section D, in appendix 
A to 50 CFR part 635). The EA for this action describes the impacts of 
those two alternatives and the preferred alternative proposed here.

Request for Comments

    NMFS is requesting comments on this proposed rule which may be 
submitted via www.regulations.gov or at a public conference call/
webinar. NMFS solicits comments on this action by May 11, 2022 (see 
DATES and ADDRESSES).
    During the comment period, NMFS will hold a public hearing via 
conference call and webinar for this proposed action. Information on 
the conference call and webinar will be posted at: https://www.fisheries.noaa.gov/action/proposed-changes-atlantic-shortfin-mako-shark-retention-limits. Requests for sign language interpretation or 
other auxiliary aids should be directed to Carrie Soltanoff at 
[email protected] or 301-427-8503, at least 7 days prior to the 
meeting.
    The public is reminded that NMFS expects participants at a public 
webinar to conduct themselves appropriately. At the beginning of the 
webinar, the moderator will explain how the webinar will be conducted 
and how and when participants can provide comments. NMFS 
representative(s) will structure the conference call and webinars so 
that all members of the public will be able to comment, if they so 
choose, regardless of the controversial nature of the subject(s). 
Participants are expected to respect the ground rules, and those that 
do not may be asked to leave the webinar.

Classification

    The NMFS Assistant Administrator has determined that the proposed 
rule is consistent with the 2006 Consolidated HMS FMP and its 
amendments, other provisions of the Magnuson-Stevens Act, ATCA, and 
other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

[[Page 21080]]

    This proposed rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. A summary of the analysis 
follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).
    Section 603(b)(1) requires agencies to describe the reasons why the 
action is being considered. In compliance with section 603(b)(1) of the 
RFA, the purpose of this proposed rulemaking is, consistent with the 
2006 Consolidated HMS FMP objectives, the Magnuson-Stevens Act, ATCA, 
and other applicable law, to analyze the impacts of the alternatives 
for implementing the ICCAT-recommended limit on retention of North 
Atlantic shortfin mako sharks.
    Section 603(b)(2) of the RFA requires agencies to state the 
objectives of, and legal basis for, the proposed action. In compliance 
with section 603(b)(2) of the RFA, the objective of this proposed 
rulemaking is to implement ICCAT recommendation consistent with ATCA 
and achieve domestic management objectives under the Magnuson-Stevens 
Act.
    Section 603(b)(3) of the RFA requires agencies to provide an 
estimate of the number of small entities to which the rule would apply. 
NMFS established a small business size standard of $11 million in 
annual gross receipts for all businesses in the commercial fishing 
industry (NAICS 11411) for RFA compliance purposes. The Small Business 
Administration (SBA) has established size standards for all other major 
industry sectors in the United States, including the scenic and 
sightseeing transportation (water) sector (NAICS code 487210), which 
includes for-hire (charter/party boat) fishing entities. The SBA has 
defined a small entity under the scenic and sightseeing transportation 
(water) sector as one with average annual receipts (revenue) of less 
than $8.0 million.
    NMFS considers all HMS permit holders, both commercial and for-
hire, to be small entities because they had average annual receipts of 
less than their respective sector's standard of $11 million and $8 
million. Regarding those entities that would be directly affected by 
the proposed measures, the average annual revenue per active pelagic 
longline vessel is estimated to be $202,000, based on approximately 90 
active vessels that produced an estimated $18.2 million in revenue in 
2020, well below the NMFS small business size standard for commercial 
fishing businesses of $11 million. No single pelagic longline vessel 
has exceeded $11 million in revenue in recent years. Other non-longline 
HMS commercial fishing vessels typically earn less revenue than pelagic 
longline vessels and, thus, would also be considered small entities.
    The proposed rule would apply to the 213 Shark Directed LAP 
holders, 256 Shark Incidental LAP holders, and 4,055 HMS Charter/
Headboat permit holders, based on 2021 data. Of those HMS Charter/
Headboat permit holders, 3,021 obtained shark endorsements. In 2018 and 
2019, 800 HMS for-hire trips targeting shortfin mako sharks were taken 
per year on average (7 percent on average of total HMS for-hire trips), 
from Maine to Virginia as captured in Large Pelagics Survey data. These 
trips were taken by, on average, 10 percent of HMS for-hire charter/
headboat vessels. On average, there were 44 Atlantic HMS tournaments 
that targeted pelagic sharks (primarily shortfin mako sharks) in 2018 
through 2021. There were approximately 1,555 directed shortfin mako 
shark trips in registered HMS tournaments on average in 2018 through 
2021. On average, 26 federally-permitted dealers per year purchased 
shortfin mako sharks in 2018 through 2020. NMFS has determined that the 
preferred alternative would not likely directly affect any small 
organizations or small government jurisdictions defined under RFA, nor 
would there be disproportionate economic impacts between large and 
small entities.
    Section 603(b)(4) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
proposed rule does not contain any new collection of information, 
reporting, or record-keeping requirements.
    Under section 603(b)(5) of the RFA, agencies must identify, to the 
extent practicable, relevant Federal rules which duplicate, overlap, or 
conflict with the proposed action. Fishermen, dealers, and managers in 
these fisheries must comply with a number of international agreements, 
domestic laws, and other fishery management measures. These include, 
but are not limited to, the Magnuson-Stevens Act, ATCA, the High Seas 
Fishing Compliance Act, the Marine Mammal Protection Act, the 
Endangered Species Act, the National Environmental Policy Act, the 
Paperwork Reduction Act, and the Coastal Zone Management Act. This 
proposed action has been determined not to duplicate, overlap, or 
conflict with any Federal rules.
    Under section 603(c) of the RFA, agencies must describe any 
significant alternatives to the proposed rule which accomplish the 
stated objectives of applicable statutes and which minimize any 
significant economic impact of the proposed rule on small entities. 
Specifically, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general 
categories of significant alternatives to assist an agency in the 
development of significant alternatives. These categories of 
alternatives are: (1) Establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) clarification, 
consolidation, or simplification of compliance and reporting 
requirements under the rule for such small entities; (3) use of 
performance rather than design standards; and, (4) exemptions from 
coverage of the rule, or any part thereof, for small entities.
    NMFS examined each of these categories of alternatives. Regarding 
the first, second, and fourth categories, NMFS cannot establish 
differing compliance or reporting requirements for small entities or 
exempt small entities from coverage of the rule or parts of it because 
all of the businesses impacted by this rule are considered small 
entities and thus the requirements are already designed for small 
entities. NMFS does not know of any performance or design standards 
that would satisfy the aforementioned objectives of this rulemaking 
while, concurrently, complying with the Magnuson-Stevens Act. As 
described below, NMFS analyzed several different alternatives in this 
proposed rulemaking, and provides rationales for identifying the 
preferred alternative to achieve the desired objectives.
    The alternatives considered and analyzed are described below. The 
IRFA assumes that each vessel will have similar catch and gross 
revenues to show the relative impact of the proposed action on vessels.
    Alternative 1, the no action alternative, would not implement any 
new management measures in the commercial or for-hire shark fisheries 
to decrease mortality of shortfin mako sharks. In recent years, about 
49,000 pounds dressed weight (dw) (22,000 kilograms dw) of shortfin 
mako sharks have been landed commercially on average from 2018 through 
2020 and the commercial revenues from shortfin mako sharks have 
averaged

[[Page 21081]]

approximately $96,000 per year. The number of pounds of shortfin mako 
shark landed, revenue, and number of pelagic longline vessels that 
landed shortfin mako sharks was lower in 2020 compared to 2018 and 2019 
(average landings in 2018 and 2019 were 55,700 pounds dw (25,000 
kilograms dw), average revenue was approximately $109,600 per year, and 
average number of pelagic longline vessels landing shortfin mako sharks 
was 53). Almost all of the shortfin mako shark commercial landings, 
based on dealer reports, were made by pelagic longline vessels. An 
average of 49 pelagic longline vessels landed shortfin mako sharks from 
2018 through 2020. Therefore, the average annual revenue from shortfin 
mako shark landings per pelagic longline vessel is approximately $1,960 
per year ($96,000/49) under the current regulations. For-hire shark 
fishing operations by HMS Charter/Headboat permit holders as well as 
HMS tournament operations would also remain the same. This alternative 
would result in no additional economic impacts on small entities 
associated with these fisheries in the short- or long-term.
    Alternative 2, the preferred alternative, would implement a 
flexible shortfin mako shark retention limit with a default limit of 
zero. The limit of zero would be in place unless and until changed 
after considering inseason trip limit adjustment criteria (Sec.  
635.24(a)(8)) and when consistent with ICCAT retention allowances 
pursuant to Recommendation 21-09. This would apply to commercial 
vessels issued a Directed or Incidental shark LAP and to HMS Charter/
Headboat permit holders. Under a retention limit of zero, HMS for-hire 
fishermen and commercial vessels would be required to release all 
shortfin mako sharks that are alive at haulback and discard all 
shortfin mako sharks that are dead at haulback. In recent years, about 
49,000 pounds dw (22,000 kilograms dw) of shortfin mako sharks have 
been landed commercially on average from 2018 through 2020, and the 
commercial revenues from shortfin mako sharks have averaged 
approximately $96,000 fishery-wide per year. Almost all of the shortfin 
mako shark commercial landings, based on dealer reports, were made by 
pelagic longline vessels. An average of 49 pelagic longline vessels 
landed shortfin mako sharks from 2018 through 2020. Therefore, the 
average loss in annual revenue from shortfin mako shark landings per 
pelagic longline vessel that landed shortfin mako sharks would be 
approximately $1,960 per year ($96,000/49). However, the overall 
economic impacts associated with these reductions in revenue are not 
expected to be substantial, as shortfin mako sharks comprise less than 
one percent of total HMS ex-vessel revenues on average. Additionally, 
the magnitude of shortfin mako landings by other commercial gear types 
(bottom longline and gillnet) is very small. This alternative would 
have minor economic costs on small entities in those commercial 
fisheries compared to the no action alternative because these measures 
would reduce the number of shortfin mako sharks landed and sold by 
these fishing vessels. Shortfin mako sharks are rarely a target 
species, however, and generate much less revenue overall than other 
more valuable target species. In for-hire fisheries and tournaments, 
retention would be prohibited, and fishermen would only be authorized 
to catch and release shortfin mako sharks. A retention limit of zero 
for shortfin mako sharks is likely to be a disincentive to fishing by 
some portion of the for-hire shark fishery, particularly those 
individuals that would otherwise have planned to target and retain 
shortfin mako sharks. Charter/headboat operators may experience some 
decline in demand if shortfin mako sharks may not be retained, 
resulting in minor adverse economic impacts. For Atlantic HMS 
tournaments, the 1,555 directed shortfin mako shark trips, on average, 
that take place in HMS tournaments would likely no longer take place, 
resulting in a loss of approximately $1.1 million in expenditures, out 
of an estimated $85.6 million in total HMS tournament expenditures by 
participating teams. Overall, this alternative would have minor 
economic costs on small entities in the short-term compared to the no 
action alternative.
    During the fishing year, based on the inseason trip limit 
adjustment criteria (Sec.  635.24(a)(8)), and to the extent consistent 
with any future retention allowance that is determined by ICCAT 
pursuant to Recommendation 21-09, NMFS could increase the shortfin mako 
shark retention limit for the commercial fishery, the recreational 
fishery, or both, as appropriate. If the retention limit for the 
commercial and recreational fisheries is greater than zero, the current 
shortfin mako shark regulatory requirements, described under 
Alternative 1, would apply. This would result in no additional economic 
impacts on small entities associated with this fishery in the long-term 
compared to the no action alternative.
    Alternative 3 would place shortfin mako on the prohibited sharks 
list to prohibit any catch or retention of shortfin mako sharks in 
commercial and recreational HMS fisheries. See Table 1, section D, in 
appendix A to 50 CFR part 635 (prohibited sharks list), Sec.  
635.24(a)(5) (related vessel restrictions), and Sec.  635.34(c) 
(criteria for adding species to, or removing species from, the 
prohibited shark species group). The overall economic impacts 
associated with reductions in revenue for the commercial and for-hire 
fisheries and HMS tournaments would be similar to those described under 
Alternative 2 and are not expected to be substantial, as shortfin mako 
sharks comprise less than one percent of total HMS ex-vessel revenues 
on average. This alternative would have minor economic costs on small 
entities in commercial fisheries because no shortfin mako sharks would 
be landed and sold by these fishing vessels under these measures. 
Shortfin mako sharks are rarely a target species, however, and generate 
less revenue overall than other more valuable target species. In for-
hire fisheries and tournaments, retention would be prohibited, and 
fishermen would only be authorized to catch and release shortfin mako 
sharks. A prohibition on the retention of shortfin mako sharks is 
likely to be a disincentive for some portion of the for-hire shark 
fishery, particularly those individuals that would otherwise have 
planned to target and retain shortfin mako sharks. Charter/headboat 
operators may experience some decline in demand, resulting in adverse 
economic impacts. For Atlantic HMS tournaments, the 1,555 directed 
shortfin mako shark trips, on average, that take place in HMS 
tournaments would likely no longer take place, resulting in a loss of 
approximately $1.1 million in expenditures, out of an estimated $85.6 
million in total HMS tournament expenditures by participating teams. 
Overall, Alternative 3 would have minor economic costs on small 
entities in the short- and long-term.

List of Subjects in 50 CFR Part 635

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

    Dated: April 5, 2022.
Carrie Robinson,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

[[Page 21082]]

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for part 635 continues to read as follows:

    Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

0
2. In Sec.  635.20, revise paragraph (e)(6) to read as follows:


Sec.  635.20  Size limits.

* * * * *
    (e) * * *
    (6) For shortfin mako sharks landed when the recreational retention 
limit specified at Sec.  635.22(c)(8) is greater than zero, males must 
be at least 71 inches (180 cm) fork length, and females must be at 
least 83 inches (210 cm) fork length.
* * * * *
0
3. In Sec.  635.21, revise paragraph (c)(1)(iv) to read as follows:


Sec.  635.21  Gear operation and deployment restrictions.

* * * * *
    (c) * * *
    (1) * * *
    (iv) Has pelagic longline gear on board, persons aboard that vessel 
are required to promptly release in a manner that causes the least harm 
any shortfin mako shark that is alive at the time of haulback, 
consistent with the requirements specified at paragraphs (a)(1) and 
(c)(6)(i) of this section. When the commercial retention limit 
specified at Sec.  635.24(a)(4)(v) is greater than zero, any shortfin 
mako shark that is dead at the time of haulback may be retained 
provided the electronic monitoring system is installed and functioning 
in compliance with the requirements at Sec.  635.9.
* * * * *
0
4. In Sec.  635.22, revise paragraph (c)(2) and add paragraph (c)(8) to 
read as follows:


Sec.  635.22  Recreational retention limits.

* * * * *
    (c) * * *
    (2) Only one shark from the following list may be retained per 
vessel per trip, subject to the size limits described in Sec.  
635.20(e)(2) and (4): Atlantic blacktip, Gulf of Mexico blacktip, bull, 
great hammerhead, scalloped hammerhead, smooth hammerhead, lemon, 
nurse, spinner, tiger, blue, common thresher, oceanic whitetip, 
porbeagle, Atlantic sharpnose, finetooth, Atlantic blacknose, Gulf of 
Mexico blacknose, and bonnethead.
* * * * *
    (8) At the start of each fishing year, the default shortfin mako 
shark retention limit of zero sharks per vessel per trip will apply. 
During the fishing year, NMFS may adjust the default shortfin mako 
shark trip limit per the inseason trip limit adjustment criteria listed 
in Sec.  635.24(a)(8). Any retention within the trip limit is subject 
to the size limits described in Sec.  635.20(e)(6).
* * * * *
0
5. In Sec.  635.24:
0
a. Add a heading for paragraph (a)(4);
0
b. Revise paragraphs (a)(4)(i) and (iii);
0
c. Add paragraph (a)(4)(v);
0
d. Revise paragraphs (a)(8)(v) and (vi); and
0
e. Add paragraph (a)(8)(vii).
    The additions and revisions read as follows:


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

* * * * *
    (a) * * *
    (4) Additional retention limits for sharks. (i) Except as provided 
in Sec.  635.22(c)(7), a person who owns or operates a vessel that has 
been issued a directed shark LAP may retain, possess, land, or sell 
pelagic sharks if the pelagic shark fishery is open per Sec. Sec.  
635.27 and 635.28. Shortfin mako sharks may be retained by persons 
aboard vessels using pelagic longline, bottom longline, or gillnet gear 
only if NMFS has adjusted the commercial retention limit above zero 
pursuant to paragraph (a)(4)(v) of this section and only if the shark 
is dead at the time of haulback and consistent with the provisions of 
Sec. Sec.  635.21(c)(1), (d)(5), and (g)(6) and 635.22(c)(7).
* * * * *
    (iii) Consistent with paragraph (a)(4)(ii) of this section, a 
person who owns or operates a vessel that has been issued an incidental 
shark LAP may retain, possess, land, or sell no more than 16 SCS and 
pelagic sharks, combined, per vessel per trip, if the respective 
fishery is open per Sec. Sec.  635.27 and 635.28. Of those 16 SCS and 
pelagic sharks per vessel per trip, no more than 8 shall be blacknose 
sharks. Shortfin mako sharks may only be retained under the commercial 
retention limits by persons using pelagic longline, bottom longline, or 
gillnet gear only if NMFS has adjusted the commercial retention limit 
above zero pursuant to paragraph (a)(4)(v) of this section and only if 
the shark is dead at the time of haulback and consistent with the 
provisions at Sec.  635.21(c)(1), (d)(5), and (g)(6). If the vessel has 
also been issued a permit with a shark endorsement and retains a 
shortfin mako shark, recreational retention limits apply to all sharks 
retained and none may be sold, per Sec.  635.22(c)(7).
* * * * *
    (v) At the start of each fishing year, the default shortfin mako 
shark retention limit of zero sharks will apply. During the fishing 
year, NMFS may adjust the default shortfin mako shark trip limit per 
the inseason trip limit adjustment criteria listed in paragraph (a)(8) 
of this section.
* * * * *
    (8) * * *
    (v) Variations in seasonal distribution, abundance, or migratory 
patterns of the relevant shark species based on scientific and fishery-
based knowledge;
    (vi) Effects of catch rates in one part of a region or sub-region 
precluding vessels in another part of that region or sub-region from 
having a reasonable opportunity to harvest a portion of the relevant 
quota; and/or
    (vii) Any shark retention allowance set by ICCAT, the amount of 
remaining allowance, and the expected or reported catch rates of the 
relevant shark species, based on dealer and other harvest reports.
* * * * *
0
6. In Sec.  635.27, revise paragraph (b)(4)(i) and add paragraph 
(b)(4)(v) to read as follows:


Sec.  635.27  Quotas.

* * * * *
    (b) * * *
    (4) * * *
    (i) The base annual quota for persons who collect LCS other than 
sandbar, SCS, pelagic sharks other than shortfin mako, blue sharks, 
porbeagle sharks, or prohibited species under a display permit or EFP 
is 57.2 mt ww (41.2 mt dw).
* * * * *
    (v) No persons may collect shortfin mako sharks under a display 
permit. Collection of shortfin mako sharks for research under EFPs and/
or scientific research permits (SRPs) may be considered on a case-by-
case basis and any associated mortality would be deducted from the 
shark research and display quota if shortfin mako shark retention is 
otherwise prohibited or counted against U.S. allowable retention levels 
established at ICCAT when retention is allowed.
* * * * *
[FR Doc. 2022-07659 Filed 4-8-22; 8:45 am]
BILLING CODE 3510-22-P