[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42452-42455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18095]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

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


Extension of Emergency Measures To Address Overfishing of 
Atlantic Shortfin Mako Shark

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

ACTION: Temporary rule; emergency action extended.

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SUMMARY: This rule extends the measures in an emergency interim final 
rule for the North Atlantic shortfin mako shark fishery published on 
March 2, 2018. This extension is necessary to maintain measures that 
address overfishing of shortfin mako sharks while long-term measures 
are developed and to meet requirements of a recommendation of the 
International Commission for the Conservation of Atlantic Tunas 
(ICCAT). The rule is expected to reduce fishing mortality to address 
overfishing, consistent with ICCAT Recommendation 17-08, by continuing 
to reduce landings and increase live releases in the recreational and 
commercial HMS fisheries, but is not expected to result in significant 
economic impacts.

DATES: The end of the effective period for the amendments to 50 CFR 
635.20, 635.21, 635.24, and 635.71, as published on March 2, 2018 (83 
FR 8946), is extended from August 29, 2018, to March 3, 2019.

ADDRESSES: Copies of the Environmental Assessment (EA) and other 
supporting documents for the emergency action are available from the 
Highly Migratory Species (HMS) Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species.

FOR FURTHER INFORMATION CONTACT: Tobey Curtis at (978) 281-9273 or Guy 
DuBeck or Lauren Latchford at (301) 427-8503.

SUPPLEMENTARY INFORMATION:

Background

    On March 2, 2018, NMFS implemented an interim final rule using 
emergency authority under the Magnuson-Stevens Fishery Conservation and 
Management Act, 16 U.S.C. 1855(c), to implement measures in HMS 
recreational and commercial fisheries to address overfishing consistent 
with ICCAT Recommendation 17-08 (83 FR 8946). The interim final rule 
noted that the measures may be extended for up to an additional 186 
days if needed while longer-term measures were developed through an FMP 
amendment. This temporary rule extends the emergency interim final 
measures for North Atlantic shortfin mako sharks (Isurus oxyrinchus) 
without change. The interim final rule provided detailed information on 
the background, purpose, need, and justification for implementing these 
emergency management measures, and that information is not repeated 
here.
    Section 305(c) of the Magnuson-Stevens Act allows for the extension 
of an emergency regulation or interim measure, which is otherwise 
effective for up to 180 days, for up to another 186 days, provided that 
the public has had an opportunity to comment on the emergency 
regulation. NMFS accepted public comment on the initial emergency 
measures in the interim final rule through May 7, 2018; comments and 
responses are summarized below. This extension does not alter the 
emergency measures already in place. NMFS is not accepting additional 
public comment on this extension.
    NMFS has determined that all the necessary criteria for extending 
the emergency measures have been met and, therefore, NMFS is extending 
these emergency measures through March 3, 2019. NMFS has proposed long-
term management measures for the North Atlantic shortfin mako shark 
stock through Draft Amendment 11 to the 2006 Consolidated HMS Fishery 
Management Plan (FMP), 83 FR 35590 (July 27, 2018), which are expected 
to replace these emergency measures before the expiration date.

[[Page 42453]]

Extended Emergency Management Measures

    NMFS is extending the original emergency regulations without 
change. The management measures in the emergency rule that are being 
extended are as follows:
    <bullet> Commercial fishermen on vessels deploying pelagic longline 
gear, which are required to have a functional electronic monitoring 
system on board under current regulations, must release all live 
shortfin mako sharks with a minimum of harm, while giving due 
consideration to the safety of crew members. Commercial fishermen using 
pelagic longline gear can only retain a shortfin mako shark if it is 
dead at haulback;
    <bullet> Commercial fishermen using gear other than pelagic 
longline commercial gear (e.g., bottom longline, gillnet, handgear, 
etc.) must release all shortfin mako sharks, whether they are dead or 
alive; and
    <bullet> Recreational fishermen (fishermen with HMS Angling or 
Charter/Headboat permits, and fishermen with Atlantic Tunas General 
category and Swordfish General Commercial permits when participating in 
a registered HMS tournament) must release any shortfin mako sharks 
smaller than the minimum size of 83 inches (210 cm) fork length (FL).

Comments and Responses

    Public comments were accepted on the original interim final rule 
through May 7, 2018, and one public hearing was held in conjunction 
with the HMS Advisory Panel meeting in Silver Spring, MD, on March 7, 
2018. During the comment period, NMFS received a total of 65 individual 
written comments on the interim final rule from fishermen, states, and 
other interested parties and the members of the public. NMFS also 
received comments related to the emergency interim final rule during 
the four public scoping meetings associated with Draft Amendment 11 to 
the 2006 Consolidated HMS FMP. We also included the following comments 
on Draft Amendment 11 that were relevant to the emergency measures or 
to our decision to extend them. All written comments can be found at 
http://www.regulations.gov/.
    Comment 1: NMFS received many comments expressing general support 
for the emergency conservation and management measures, citing the 
importance of sharks, including shortfin mako sharks, to the health of 
ocean ecosystems.
    Response: NMFS agrees that sharks are important predators in ocean 
ecosystems, and notes that there are statutory obligations to conserve 
and manage shark populations, prevent overfishing, and achieve long-
term sustainability. NMFS has determined that the emergency measures 
extended in this rule will address overfishing and sustainability of 
the North Atlantic shortfin mako shark stock as required by law.
    Comment 2: NMFS received several comments suggesting that 
management measures for shortfin mako sharks should be more restrictive 
than those implemented in the emergency rule, including prohibiting all 
retention of shortfin mako sharks, or other more restrictive measures.
    Response: NMFS disagrees that more restrictive measures are 
required at this time. The emergency measures are consistent with those 
recommended in ICCAT Recommendation 17-08 (with one alteration with 
respect to the recommended minimum size limit as explained in response 
to Comment 9), based upon the analyses in the EA (see ADDRESSES). The 
selected measures are expected to reduce U.S. shortfin mako shark catch 
consistent with the ICCAT 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 11 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). Ending 
overfishing and rebuilding the stock can only be accomplished through 
international coordination with nations that harvest the majority of 
shortfin mako sharks. ICCAT intends to evaluate the effectiveness of 
these measures in the coming months, update the stock assessment with 
the most recent data, establish a rebuilding plan, and develop 
additional measures if necessary. Other types of management measures 
are not being considered as part of this emergency interim final rule, 
which addresses overfishing consistent with the ICCAT recommendation.
    Comment 3: Several commenters argued that U.S. management of 
shortfin mako sharks should not be bound to ICCAT recommendations, and 
measures could be more, or less, restrictive than those recommended by 
ICCAT.
    Response: As a party to ICCAT, the United States is obligated under 
the Atlantic Tunas Convention Act (ATCA) to carry out binding 
recommendations of the Commission. Under ATCA, the Secretary is 
required to promulgate regulations as may be necessary and appropriate 
to carry out such recommendations. A range of reasonable alternatives 
were evaluated in the EA analyzing the impacts of the measures in the 
emergency rule (see ADDRESSES), and the preferred alternatives in the 
emergency rule were determined by NMFS to be consistent with all 
statutory requirements. NMFS will continue to work constructively 
within the ICCAT process to effectively conserve shortfin mako sharks 
throughout their range and balance the needs of U.S. fisheries.
    Comment 4: Many fishermen, recreational and commercial, expressed 
frustration that their opportunities to land shortfin mako sharks were 
being restricted by ICCAT, and stated their belief that other 
countries' fisheries were to blame for the problem, not U.S. fisheries. 
Some challenged the science behind the stock assessment determinations 
and argued that the stock is not as depleted as estimated by ICCAT. 
Most commenters felt that shortfin mako sharks have been sustainably 
managed in U.S. waters, and responsible U.S. fishermen should not be 
penalized for poor management outside the United States.
    Response: NMFS acknowledges that U.S. fisheries represent a 
comparatively small amount (approximately 11 percent annually) of total 
North Atlantic shortfin mako shark harvest, with other countries' 
fleets representing the majority of catch. NMFS also has an obligation 
to prevent overfishing and rebuild overfished fish stocks under the 
Magnuson-Stevens Act. For stocks with a broad geographic range, like 
North Atlantic mako sharks, however, the United States alone cannot 
undertake measures that effectively end overfishing and rebuild the 
stocks, especially where the United States is a small proportion of the 
overall catch. In such situations, the United States must work 
cooperatively with other parties to devise and enforce effective 
measures. Here, ICCAT, with the United States' input, determined that 
rather than completely prohibit any retention of shortfin mako sharks, 
it would implement measures that reduce shortfin mako mortality by 
increasing live releases in ICCAT commercial and recreational fisheries 
but that allowed limited retention under certain circumstances. These 
circumstances recognize parties, such as the United States, that have 
measures in place that effectively limit mako shark landings and 
interactions, such as minimum size restrictions or electronic 
monitoring. Some ICCAT parties will not meet these

[[Page 42454]]

circumstances allowing retention and will effectively face a complete 
prohibition absent additional regulatory action. Furthermore, because 
the stock is overfished with overfishing occurring and previous stock 
assessments had not assessed it as such, each party to ICCAT that 
fishes on the stock must take some measure of responsibility for the 
stock's condition and contribute to ending overfishing immediately to 
avoid further stock decline and additional restrictions in the future. 
The next steps in the recommendation include provisions for considering 
longer rebuilding period timeframes given the biology of the stock and 
developing a rebuilding plan in 2018. As conservation and management 
development progresses, NMFS will continue to emphasize the responsible 
practices of U.S. fishermen and advocate for accountability and 
equitable regulatory measures with other nations through the ICCAT 
process. NMFS will also continue to ensure that management decisions 
developed through ICCAT are based on the best available scientific 
information by providing accurate data and supporting international 
stock assessments.
    Comment 5: Some commenters opposed the commercial measure that 
fishermen using pelagic longline gear may only retain shortfin mako 
sharks that are dead at haulback because the commenters felt the 
measure is unenforceable.
    Response: ICCAT Recommendation 17-08 conditioned limited allowable 
retention of mako sharks on several circumstances, one of which is the 
use of electronic monitoring to confirm the status of the shark when 
caught. NMFS determined that this measure is enforceable due to the 
presence of video electronic monitoring equipment on all pelagic 
longline vessels. Video collected from these fishing trips can be used 
to determine if landed shortfin mako sharks were dead when they were 
initially brought alongside the vessel. NMFS will review the video 
collected using the same process as for monitoring bluefin tuna catches 
implemented in Amendment 7 to the 2006 Atlantic Consolidated HMS FMP 
(79 FR 71510). As described in the HMS 2017 SAFE Report, videos from 
fishing sets will be randomly sampled in proportion to a vessel's 
fishing effort, with approximately 10 percent of sets randomly reviewed 
for compliance. Thus, this preferred commercial measure is enforceable.
    Comment 6: Some commenters stated that recreational fisheries do 
not have a big impact on shortfin mako shark mortality compared to 
commercial fisheries, and therefore should not be subject to such 
restrictive management measures. Therefore, several of these commenters 
expressed support for the No Action alternative.
    Response: According to the analyses in the EA (see ADDRESSES), the 
percentages of commercial and recreational catches of shortfin mako 
sharks in U.S. waters in recent years are evenly split. 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. The No Action alternative would 
not adequately address overfishing or be consistent with U.S. 
obligations to ICCAT and other legal requirements.
    Comment 7: Many recreational fishermen commented that the increased 
minimum size limit, from 54 to 83 inches fork length, is excessive and 
will eliminate the shortfin mako shark recreational fishery given how 
rarely fish greater than 83 inches fork length are caught. Most of 
these commenters argued for smaller increases in the minimum size limit 
and/or alternative management measures (shorter seasons, 1-3 shark per 
year limits per vessel with a tag system or lottery, slot limits, male-
only retention, etc.).
    Response: The minimum size limit increase to 83 inches fork length 
was designed to significantly reduce shortfin mako shark recreational 
mortality consistent with the ICCAT recommendation. Based on the 
analyses in the EA (see ADDRESSES), less than 20 percent of the 
shortfin mako sharks landed in recent years were above the 83-inch fork 
length threshold. NMFS acknowledges that the reduction in landings as a 
result of this measure could be significant, and minor negative 
socioeconomic impacts are expected according to the EA. However, this 
reduction is required to address overfishing and be responsive to U.S. 
obligations to ICCAT. While some of the alternative measures suggested 
by recreational fishermen could reduce shortfin mako shark mortality 
while balancing the needs of the fishery, such measures were beyond the 
scope of this emergency rule to consider. Some of these alternative 
management approaches were considered as part of Amendment 11 and may 
be considered by ICCAT in the future.
    Comment 8: Several recreational fishermen raised concerns about the 
safety at sea associated with trying to measure the length of large, 
potentially active, shortfin mako sharks to determine if the shark is 
large enough to be retained.
    Response: Shark fishing, especially for shortfin mako sharks, is an 
inherently dangerous activity that requires experience, skill, and 
appropriate gear to be safe. Such safety concerns were one of the 
reasons NMFS chose to implement a single 83-inch minimum size limit for 
both sexes so that these large, active fish would not have to be 
excessively handled boatside to determine whether it was a male or 
female. As with other large, active HMS, it can be difficult to 
accurately measure the fish without injury to fishermen or the fish. 
Therefore, NMFS recommends that fishermen err on the side of caution 
and only retain shortfin mako sharks that are obviously longer than 83 
inches fork length when viewed alongside the vessel.
    Comment 9: Several recreational fishermen commented that NMFS 
should be implementing ICCAT Recommendation 17-08 as stated, and not be 
more restrictive than the recommendation. Specifically, commenters 
stated that NMFS should implement the Recommendation 17-08 minimum size 
limits of at least 71 inches fork length for males and at least 83 
inches fork length for females (analyzed in Alternative 2 of the EA, 
see ADDRESSES), instead of a single 83-inch fork length minimum size 
limit for both sexes.
    Response: The 2017 ICCAT stock assessment for shortfin mako 
estimated that catches need to be reduced by 72-79 percent to end 
overfishing. Based on the analysis for Alternative 2 in the EA (see 
ADDRESSES), the smaller minimum size limit for males would not 
sufficiently reduce recreational catch to those levels (estimated 
recreational landings reduction = 49 percent). Thus, NMFS implemented a 
single minimum size limit at 83 inches fork length that would apply to 
both sexes to achieve the necessary catch reductions (estimated 
recreational landings reduction = 83 percent). This single minimum size 
limit also addressed the safety concerns raised by some fishermen (see 
response to Comment 8).

Classification

    The Assistant Administrator for Fisheries has determined that the 
emergency measures extended by this temporary rule are necessary to 
address overfishing of the North Atlantic shortfin mako shark fishery 
and are consistent with the Magnuson-Stevens Act and other applicable 
law.
    Under 5 U.S.C. 553(d)(1), the Assistant Administrator for Fisheries 
finds good cause to waive the 30-day delayed effectiveness of this 
action. These emergency measures were

[[Page 42455]]

undertaken to address overfishing, and if they expire before longer 
term measures are adopted, overfishing may occur during the lapse in 
regulation, contrary to the public interest in effective management of 
the stock and compliance with domestic and international legal 
obligations. As described more fully in the interim final emergency 
rule (March 2, 2018; 83 FR 8946), the reasons justifying promulgation 
of the rule on an emergency basis make a delay in effectiveness 
contrary to the public interest. The measures implemented for the 
shortfin mako shark fishery are needed to address overfishing of the 
stock.
    This action is being taken pursuant to the emergency provision of 
the Magnuson-Stevens Act and is exempt from OMB review.
    This rule is exempt from the otherwise applicable requirement of 
the Regulatory Flexibility Act to prepare a regulatory flexibility 
analysis because the rule is issued without opportunity for prior 
public comment.

    Dated: August 17, 2018.
Donna S. Wieting,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2018-18095 Filed 8-21-18; 8:45 am]
 BILLING CODE 3510-22-P