[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Rules and Regulations]
[Pages 39373-39383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14116]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 220627-0143]
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: Final rule.

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SUMMARY: In this final rule, NMFS is implementing a flexible shortfin 
mako shark retention limit with a default limit of zero in commercial 
and recreational Atlantic highly migratory species (HMS) fisheries. The 
default limit of zero will remain in place unless and until changed. 
Under this final rule, future changes to the retention limit can only 
be made based on consideration of 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 recommendations 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: This final rule is effective July 5, 2022.

ADDRESSES: Electronic copies of this final rule and supporting 
documents are available from the Atlantic HMS Management Division 
website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by contacting Carrie Soltanoff at 
<a href="/cdn-cgi/l/email-protection#b9dad8cbcbd0dc97cad6d5cdd8d7d6dfdff9d7d6d8d897ded6cf"><span class="__cf_email__" data-cfemail="b8dbd9cacad1dd96cbd7d4ccd9d6d7dedef8d6d7d9d996dfd7ce">[email protected]</span></a> or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Carrie Soltanoff 
(<a href="/cdn-cgi/l/email-protection#513230232338347f223e3d25303f3e3737113f3e30307f363e27"><span class="__cf_email__" data-cfemail="e7848695958e82c994888b938689888181a789888686c9808891">[email protected]</span></a>), Guy DuBeck (<a href="/cdn-cgi/l/email-protection#a3c4d6da8dc7d6c1c6c0c8e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="7b1c0e02551f0e191e18103b15141a1a551c140d">[email protected]</span></a>), Erianna 
Hammond (<a href="/cdn-cgi/l/email-protection#1376617a727d7d723d7b727e7e7c7d77537d7c72723d747c65"><span class="__cf_email__" data-cfemail="1471667d757a7a753a7c7579797b7a70547a7b75753a737b62">[email protected]</span></a>), or Ann Williamson 
(<a href="/cdn-cgi/l/email-protection#8feee1e1a1f8e6e3e3e6eee2fce0e1cfe1e0eeeea1e8e0f9"><span class="__cf_email__" data-cfemail="dbbab5b5f5acb2b7b7b2bab6a8b4b59bb5b4babaf5bcb4ad">[email protected]</span></a>) at 301-427-8503.

SUPPLEMENTARY INFORMATION: Atlantic shark fisheries are managed 
primarily under the authority of the Magnuson-Stevens Act (16 U.S.C. 
1801 et seq.) and ATCA (16 U.S.C. 971 et seq.). The 2006 Consolidated 
Atlantic HMS Fishery Management Plan (2006 Consolidated HMS FMP) and 
its amendments are implemented by regulations at 50 CFR part 635. ATCA 
authorizes the Secretary of Commerce to promulgate such regulations as 
necessary and appropriate to carry out ICCAT recommendations. The 
authority to issue regulations under the Magnuson-Stevens Act and ATCA 
has been delegated from the Secretary of Commerce to the NMFS Assistant 
Administrator.
    Background information about the need to implement a retention 
limit for shortfin mako sharks was provided in the preamble to the 
proposed rule (87 FR 21077, April 11, 2022) and is not repeated here. 
The comment period for the proposed rule closed on May 11, 2022. NMFS 
received 22 written comments as well as oral comments during the public 
hearing held by webinar on April 27, 2022. The comments received, and 
the responses to those comments, are summarized in the Response to 
Comments section. After considering public comments on the proposed 
rule, NMFS is finalizing the rule as proposed. As described, no changes 
are made from the proposed rule.
    NMFS has prepared an Environmental Assessment (EA), Regulatory 
Impact Review (RIR), and Final Regulatory Flexibility Analysis (FRFA), 
which analyze the anticipated environmental, social, and economic 
impacts of several alternatives for each of the major issues contained 
in this final rule. The full list of alternatives and their analyses 
are provided in the final EA/RIR/FRFA and are not repeated here. A 
summary of the FRFA is provided below. A copy of the final EA/RIR/FRFA 
prepared for this final rule is available from NMFS (see ADDRESSES).
    As described in the proposed rule, Recommendation 21-09, adopted at 
the November 2021 ICCAT annual meeting, 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.
    In order to meet domestic management objectives, implement 
Recommendation 21-09, and acknowledge the possibility of future 
retention, this final rule implements a flexible shortfin mako shark 
retention limit with a default limit of zero in commercial and 
recreational HMS fisheries. The retention limit applies to commercial 
vessels issued a Shark

[[Page 39374]]

Directed or Shark Incidental LAP using pelagic longline, bottom 
longline, or gillnet gear, and to recreational HMS permit holders 
(those who hold HMS Angling or Charter/Headboat permits). It also 
applies to Atlantic Tunas General category and Swordfish General 
Commercial permits when participating in a registered HMS tournament. 
Retention already is not allowed for other permits and gear types (see 
Sec. Sec.  635.21(a)(4) and 635.24(a)(4)(i) and (iii)). Thus, retention 
in all commercial and recreational fisheries is prohibited for 2022 
consistent with the ICCAT recommendation, and all commercial and 
recreational fishermen are required to release all shortfin mako 
sharks, whether dead or alive, at haulback.
    The shortfin mako shark retention limit per trip of zero will 
remain in place unless changed after consideration of the inseason trip 
limit adjustment criteria (Sec.  635.24(a)(8)) and consistent with any 
ICCAT retention allowances pursuant to Recommendation 21-09. If the 
retention limit is increased, it would apply only to commercial vessels 
issued a Shark Directed or Shark Incidental LAP using pelagic longline, 
bottom longline, or gillnet gear, and/or 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). It would 
not apply to other fisheries and gear types where retention is 
otherwise prohibited. If a retention limit greater than zero is 
implemented for the commercial fishery, the commercial shortfin mako 
shark fishing restrictions in effect prior to this final rule would 
once again also apply. Similarly, if a retention limit greater than 
zero is implemented for the recreational fishery, the recreational 
shortfin mako shark fishing restrictions in effect prior to this final 
rule would again also apply.
    Additionally, under this final rule, research and sampling of 
shortfin mako sharks continues to be allowable 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 is not allowed. Applications for EFPs and/or SRPs will 
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 such 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. When retention is 
otherwise prohibited, any retention pursuant to an EFP and/or SRP will 
be accounted for under the applicable shark research and display quota. 
If retention is otherwise permitted, consistent with ICCAT 
recommendations, NMFS will count any retention under EFPs and/or SRPs 
against the applicable ICCAT retention allowance.
    NMFS is also making 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.

Response to Comments

    Written comments can be found at www.regulations.gov by searching 
for ``NOAA-NMFS-2022-0015.'' Below, NMFS summarizes and responds to the 
comments made on the proposed rule during the comment period.
    Comment 1: NMFS received several comments in support of the 
proposed measures (preferred Alternative 2 in the EA for this action). 
Commenters stated that they supported these measures due to the ICCAT 
stock assessment showing that the North Atlantic shortfin mako shark 
stock is overfished and subject to overfishing; the role of shortfin 
mako sharks as apex predators in the marine ecosystem; the life history 
traits of this species including slow growth and late reproductive 
maturity; the high risk of this species to overfishing; and listing of 
this species as endangered on the International Union for Conservation 
of Nature (IUCN) Red List of Threatened Species. Some commenters 
supported the zero retention limit in order to allow sustainable 
commercial and recreational fishing for shortfin mako sharks in the 
future.
    Response: NMFS agrees that these measures, along with other 
conservation and management measures that are in place, are appropriate 
given the stock assessment conclusion that the North Atlantic shortfin 
mako shark stock is overfished and subject to overfishing. These 
measures are based on the best scientific information available, which 
recognizes the species' life history traits, including late 
reproductive maturity. NMFS shares the commenters' view that putting a 
retention limit of zero in place now should contribute to allowing the 
population to support future sustainable fisheries.
    Regarding the IUCN Red List status of shortfin mako sharks, NMFS 
scientists participate in the species assessment for the Red List, but 
NMFS does not base management actions on IUCN designations. The IUCN 
uses different criteria than applicable under the Endangered Species 
Act (ESA) for determining whether a species is threatened or endangered 
or for determining whether stocks are overfished or overfishing is 
occurring under the Magnuson-Stevens Act.
    Comment 2: Several comments supported a retention limit of zero for 
shortfin mako sharks but stated that the retention limit should be 
extended domestically beyond 2023, even if some level of retention is 
allowed beginning in 2023 under Recommendation 21-09, and stay in place 
until the population is rebuilt, as determined by a stock assessment. 
Some commenters urged NMFS to take a precautionary approach to shortfin 
mako shark management. Some commenters stated that allowing retention 
before the population is rebuilt would be inconsistent with the best 
scientific information available, as required under National Standard 2 
of the Magnuson-Stevens Act.
    Response: NMFS disagrees that the HMS regulations should specify 
that the retention limit of zero for shortfin mako sharks should remain 
in place until the population is determined to be rebuilt. The purpose 
of this action is to implement ICCAT Recommendation 21-09, which 
includes the possibility of limited future retention of shortfin mako 
sharks as determined by ICCAT consistent with this recommendation. 
Recommendation 21-09 specifies that retention may only occur when the 
overall level of fishing mortality prevents overfishing with a high 
probability (i.e., under 250 mt for all ICCAT parties combined). 
Recommendation 21-09 also provides that a rebuilding program for North 
Atlantic shortfin mako shark is being undertaken starting in 2022 to 
end overfishing immediately and gradually achieve biomass levels 
sufficient to support maximum sustainable yield (MSY) by 2070 with a 
probability of a range of between 60 and 70 percent at least. The 
initial aim of the recommendation is to reduce total fishing mortality, 
to maintain mortality at sustainable levels to rebuild the stock, and 
to establish a process to determine whether in any given year there is 
a possibility for retention. ICCAT determinations regarding longer-term 
retention or measures that are appropriately part of a rebuilding plan 
have not yet been made. As described in Chapter 4.1 of the EA, possible 
future increase of the shortfin mako shark retention limit above zero, 
consistent with the limits specified in Recommendation 21-09 and the 
domestic inseason adjustment criteria, would not be expected to have an

[[Page 39375]]

adverse impact on the stock. Additionally, the U.S. portion of total 
ICCAT shortfin mako shark catch has historically been low 
(approximately 14 percent, on average, at the time of the 2017 stock 
assessment). Under a retention limit greater than zero, U.S. retention 
would continue to be limited by the commercial and recreational 
restrictions under the current regulations. Further, Recommendation 21-
09 limits possible future retention of shortfin mako sharks to those 
that are dead at haulback.
    Regarding National Standard 2 of the Magnuson-Stevens Act, as 
described in Chapter 8 of the EA, National Standard 2 requires that 
conservation and management measures be based on the best scientific 
information available. NMFS determined that the preferred Alternative 
2, implemented in this action, is consistent with National Standard 2. 
These measures are based on the latest ICCAT Standing Committee on 
Research and Statistics (SCRS) stock assessment for shortfin mako 
sharks, and specific SCRS advice regarding recommended management 
approaches (i.e., no retention) pending reduction of catch below 250 
mt. Any shortfin mako shark retention allowed by ICCAT would take into 
consideration the best scientific information available regarding 
landings and dead discards across all ICCAT parties. Results from the 
stock assessment and the other data sources represent the best 
available science.
    Comment 3: One commenter stated that the current commercial fishery 
restrictions would apply if the flexible shortfin mako shark retention 
limit were increased above zero, and that the current restrictions are 
inadequate to rebuild the population.
    Response: Regarding the commercial fishery regulations in effect 
prior to this final rule, in the FEIS for Amendment 11 to the 2006 
Consolidated HMS FMP (Amendment 11), NMFS concluded that the commercial 
measures would have short- and long-term minor beneficial ecological 
impacts to the North Atlantic shortfin mako shark stock. The Amendment 
11 measures were implemented to reduce U.S. shortfin mako shark catch 
to levels consistent with ending overfishing and beginning to rebuild 
the stock. U.S. shortfin mako shark catch is a small percentage of 
total North Atlantic-wide catch and so domestic reductions in shortfin 
mako shark mortality alone cannot end overfishing of, or rebuild, the 
entire North Atlantic stock.
    Comment 4: NMFS received several comments in support of a non-
preferred alternative (Alternative 3) to prohibit retention of shortfin 
mako sharks through placing the species on the Atlantic HMS prohibited 
sharks list. Commenters stated that this alternative would be in line 
with the SCRS advice and Recommendation 21-09. Commenters also stated 
that NMFS' analyses show that this measure would not have substantial 
economic impacts on commercial or for-hire fisheries or HMS 
tournaments. One commenter stated that shortfin mako sharks also meet 
one of the criteria for putting sharks on the prohibited species list, 
Sec.  635.34(c)(4), because the species is difficult to distinguish 
from other prohibited species, since it is easily confused with longfin 
mako sharks.
    Response: NMFS is not implementing Alternative 3 (prohibit 
retention of shortfin mako sharks) at this time because that measure 
would be beyond the scope of this action to implement ICCAT 
Recommendation 21-09. Under Sec.  635.34(c), NMFS considers four 
criteria when placing a species on the Atlantic HMS prohibited species 
list. These criteria are: (1) Biological information indicating that 
the stock warrants protection; (2) Information indicating that the 
species is rarely encountered or observed caught in HMS fisheries; (3) 
Information indicating that the species is not commonly encountered or 
observed caught as bycatch in fishing operations for species other than 
HMS; and (4) Whether the species is difficult to distinguish from other 
prohibited species.
    Although shortfin mako sharks meet criteria 1 and 3 of the four 
prohibited species criteria, NMFS is not adding shortfin mako sharks to 
the prohibited species list for several reasons. First, if ICCAT should 
make changes to the retention allowance in the future under 
Recommendation 21-09, the preferred alternative gives NMFS flexibility 
to make changes to the retention limit quickly to allow U.S. fishermen 
the opportunity to potentially land shortfin mako sharks, or to again 
prohibit retention quickly by setting the limit at zero when needed. 
Additionally, the shortfin mako shark mortality associated with current 
U.S. landings is minimal when compared to the total North Atlantic 
shortfin mako shark mortality. Therefore, NMFS is not implementing this 
alternative at this time.
    Regarding criterion four, shortfin mako sharks are not easily 
confused with other shark species. The species that look the most like 
shortfin mako sharks are porbeagle and white sharks. However, there are 
several clear differences in their dorsal fin coloration, second dorsal 
fin position, and teeth. Porbeagle sharks have a unique white patch on 
the trailing edge of the first dorsal fin, which makes the mark a great 
identification characteristic that can easily be seen while the shark 
is alive and in the water. The position of the second dorsal fin is in 
line with the anal fin in porbeagle and shortfin mako sharks, while the 
second dorsal fin is positioned between the pelvic and anal fin in 
white sharks. If the shark is brought to the vessel dead, fishermen 
could also examine the teeth before deciding whether the species can be 
retained. Specifically, porbeagle sharks have smooth, bladelike teeth 
with cusplets, while shortfin mako sharks have smooth, bladelike teeth 
without cusplets, and white sharks have large, triangular, serrated 
teeth. One of the commenters suggested that shortfin mako sharks could 
be mistaken for longfin mako sharks. NMFS has not found that to be 
true. Longfin mako sharks have been on the prohibited species list 
since 2000. During that time, few fishermen have mistaken the species 
for shortfin mako sharks. Compared to shortfin mako sharks, longfin 
mako sharks have much longer pectoral fins, have a different body 
shape, and are dark on the underside of the snout.
    Comment 5: One comment supported the proposed flexible retention 
limit for shortfin mako sharks as a short-term solution with the goal 
of ultimately adding the shortfin mako shark to the prohibited sharks 
list in the long-term.
    Response: For the reasons described in the responses to Comments 1 
and 4 and Chapter 4 of the EA, NMFS is implementing the measures under 
preferred Alternative 2 to implement a flexible shortfin mako shark 
retention limit with a default limit of zero, and is not adding the 
species to the HMS prohibited sharks list under Alternative 3. This 
does not preclude NMFS from adding shortfin mako sharks to the 
prohibited sharks list in the future if new information or 
international or domestic action necessitate that measure, for example, 
under a future ICCAT recommendation or following domestic 
determinations under the ESA.
    Comment 6: NMFS received several comments supporting a ban on 
shortfin mako shark retention, rather than a flexible retention limit 
with a default limit of zero. Commenters supported banning retention 
due to the ICCAT stock assessment showing that the North Atlantic 
shortfin mako shark stock is overfished and subject to overfishing; the 
scientific advice and projections from the SCRS, including that the 
population will continue to decline for several years before it begins 
to recover, even with no retention; the need to

[[Page 39376]]

incentivize avoidance of this species by fishing vessels; the high 
susceptibility of the species as identified in the SCRS Ecological Risk 
Assessment for sharks; the role of shortfin mako sharks as apex 
predators in the marine ecosystem; the life history traits of this 
species including slow growth and late reproductive maturity; listing 
of this species as endangered on the IUCN Red List; the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) status of this species; and the need to save this species from 
extinction. Some commenters specifically opposed flexibility in the 
retention limit. One commenter supported maintaining a full retention 
ban until at least 2035 or whenever a new stock assessment demonstrates 
rebuilding will be successful.
    Response: NMFS disagrees that the Agency should implement a 
retention ban for shortfin mako sharks, which NMFS understands to mean 
implementing a retention limit of zero with no flexibility to increase 
the retention limit in the future. NMFS believes that implementation of 
the preferred alternative, including a flexible retention limit, best 
meets the purpose and need for this action: to implement ICCAT 
Recommendation 21-09. If retention is later allowed by ICCAT pursuant 
to the provisions in the recommendation, section 304(g)(1)(D) of the 
Magnuson-Stevens Act requires the Agency to provide fishing vessels 
with a reasonable opportunity to harvest U.S. allocation or quota under 
an international fishery agreement. Under these measures, NMFS could 
change the shortfin mako shark retention limit based on the inseason 
trip limit adjustment criteria where consistent with any future 
retention allowance that is determined by ICCAT consistent with 
Recommendation 21-09. ICCAT adopted Recommendation 21-09 in order to 
address the stock status of North Atlantic shortfin mako sharks 
(overfished and experiencing overfishing) and recognizing the results 
of the SCRS ecological risk assessment for sharks and the SCRS advice 
that, regardless of allowable catch levels, the shortfin mako shark 
spawning stock biomass will continue to decline until 2035 before any 
increase can occur, owing to the time it takes juveniles to reach 
maturity. As described in Chapter 4 of the EA, these measures may have 
the effect of disincentivizing shortfin mako shark catch, although only 
to the extent commercial fishermen could further explore and find ways 
to avoid shortfin mako sharks through gear modification or changing 
fishing locations.
    Regarding CITES status, the CITES status of shortfin mako sharks 
has been addressed in the United States through appropriate permitting 
requirements, and is outside the scope of this rulemaking. CITES 
classifies species based on the level of trade monitoring needed to 
ensure the population recovers or remains healthy. Through CITES, the 
United States has agreed to increase protections and international 
trade monitoring for a number of shark species, including shortfin mako 
sharks. Shortfin mako sharks are included in CITES Appendix II, under 
which commercial international trade is allowed, and in the United 
States permit requirements specific to CITES are managed primarily by 
the U.S. Fish and Wildlife Service. IUCN Red List status of shortfin 
mako sharks is discussed in the response to Comment 1.
    Comment 7: NMFS received a comment that retention of shortfin mako 
sharks for scientific research should be banned as well, because that 
activity risks fatal injuries to the sharks.
    Response: Determinations regarding individual EFPs or SRPs for 
shortfin mako research would be made on a case-by-case basis; NMFS is 
not authorizing any particular research, retention, or sampling with 
this final rule. NMFS disagrees that scientific research sampling of 
shortfin mako sharks should be banned under HMS EFPs and SRPs. As 
described in Chapter 2 of the EA, considering the fact that the 
shortfin mako shark retention limit will otherwise be set at zero, NMFS 
intends to limit any EFPs and SRPs to closely monitored studies, and to 
limit the number of such permits and the number of sharks that may be 
retained, if any. Research on shortfin mako sharks is critical to 
gathering scientific information about the stock and to helping ensure 
that stock assessments have sufficient data. Permitted collection of 
shortfin mako sharks for scientific research is 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 (Recommendation on Biological Sampling of Prohibited Shark 
Species by Scientific Observers) 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.
    Comment 8: Some comments supported including all relevant 
commercial and recreational fisheries in the scope of this rulemaking, 
including fisheries, such as bottom longline and gillnet shark 
fisheries, which are not considered ICCAT fisheries.
    Response: NMFS agrees with the commenters on including gears that 
are not associated with ICCAT fisheries, such as bottom longline and 
gillnet shark fisheries, in this action. 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 ensures consistency in HMS 
regulations across gear types, which will provide clarity for both the 
regulated community and for enforcement purposes and thus ensure more 
effective implementation. The purpose of this action is to implement 
ICCAT Recommendation 21-09, which prohibits the retention of North 
Atlantic shortfin mako sharks caught in association with ICCAT 
fisheries in 2022 and 2023, among other measures. In this action, 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 applying a flexible 
retention limit with a default of zero to non-ICCAT fishery gear types 
(bottom longline and gillnet).
    Comment 9: NMFS received a comment that the alternative to prohibit 
retention of shortfin mako sharks is the most consistent with National 
Environmental Policy Act (NEPA) requirements, since public comment 
would be taken on any future action to allow retention. The commenter 
stated that the flexible retention limit under the preferred 
alternative, on the other hand, would not require public comment to 
increase the retention limit, which would be inconsistent with NEPA 
requirements. The commenter further stated that the preferred 
alternative did not analyze an upper retention limit and therefore the 
analyses in the EA are inadequate.
    Response: NMFS disagrees that increasing the shortfin mako shark 
retention limit in the future would be inconsistent with NEPA 
requirements. Inseason trip limit adjustment criteria are described in 
the current HMS regulations (see Sec.  635.24(a)(8)), as augmented in 
this action, and those

[[Page 39377]]

regulatory criteria would be used for any future adjustment of the 
shortfin mako shark retention limit, as they are currently for 
adjustment of other shark retention limits (for example, Sec.  
635.24(a)(2)). In addition, any future change to the shortfin mako 
shark retention limit would be implemented only to the extent future 
retention is allowable as determined by ICCAT consistent with 
Recommendation 21-09. Although an upper per trip retention limit for 
shortfin mako sharks is not analyzed in this action, the EA effectively 
analyzes the possible effects of any retention limit increases that 
fall within (and would effectuate) a future U.S. retention allowance 
under the current Recommendation. A future U.S. retention allowance 
would occur within the Recommendation's overall limit on total fishing 
mortality and the United States' portion of that allowance and would 
not have additional impacts outside those analyzed. Furthermore, any 
retention allowance for the United States would likely be small since 
it must be under 250 mt for all ICCAT parties combined, and the U.S. 
portion of total ICCAT shortfin mako shark catch has historically been 
low. When NMFS establishes a per-trip retention limit, it will 
constrain U.S. catch within that U.S. retention allowance. 
Additionally, under a retention limit greater than zero, U.S. shortfin 
mako shark retention would continue to be limited by the commercial and 
recreational restrictions in the current regulations, along with 
additional restrictions on retention of sharks that are alive at 
haulback. Recommendation 21-09 only allows for possible future 
retention of shortfin mako sharks that are dead at haulback, which 
further restricts possibilities for U.S. retention under a possible 
future retention allowance. These measures for shortfin mako sharks are 
analyzed in the EA for this action under preferred Alternative 2, 
considering public comments received on the proposed rule and draft EA 
and IRFA, consistent with NEPA requirements.
    Comment 10: NMFS received comments, including from the State of 
Georgia, opposing implementation of a default retention limit of zero 
for shortfin mako sharks in directed shark fisheries or in recreational 
fisheries. Commenters stated that the United States has already 
effectively reduced shortfin mako shark catch in proportion to the U.S. 
contribution to stock-wide catches. The State of Georgia also commented 
that the Agency should not implement measures beyond those under 
Amendment 11 in directed shark fisheries, and that the HMS regulations 
implementing ICCAT recommendations on oceanic whitetip sharks and 
hammerhead sharks were not implemented in non-ICCAT, directed shark 
fisheries for consistency.
    Response: NMFS agrees that the measures implemented under Amendment 
11 were effective at meeting the management objectives of that action, 
and reduced catch levels of shortfin mako sharks in U.S. fisheries to a 
level consistent with ending overfishing of the stock. However, as 
described under the No Action Alternative (Alternative 1) in Chapter 4 
of the EA, the current measures are not sufficient to meet the purpose 
and need for the present action. The purpose of this action is to 
implement ICCAT Recommendation 21-09, which prohibits the retention of 
North Atlantic shortfin mako sharks. The action is needed because the 
current HMS regulations, which allow limited retention of shortfin mako 
sharks in commercial and recreational fisheries, are inconsistent with 
the requirements of Recommendation 21-09.
    NMFS disagrees that shortfin mako shark retention limit should not 
apply in directed shark fisheries. As described in Chapter 2 of the EA, 
the flexible retention limit 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 would 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. 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, NFMS would apply a flexible 
retention limit with a default of zero to these gears.
    Comment 11: Several commenters suggested measures that could be 
implemented instead of a retention limit of zero in the recreational 
fishery. Suggestions included a recreational limit of one shortfin mako 
shark per vessel per year; a limit of two sharks per year: one trophy 
size and one for personal consumption; banning the retention of 
females; banning retention in tournaments; mandatory reporting; 
increasing the minimum sizes; and managing shortfin mako sharks like 
deer (i.e., through administration of a system that provides fishermen 
with a tag or limited number of tags). NMFS received a suggestion to 
implement a fee for each shortfin mako shark caught, and a higher fee 
if the shark is brought to the vessel dead.
    Response: NMFS appreciates the comments suggesting ways to allow 
retention of shortfin mako sharks while reducing the overall number of 
sharks harvested. However, allowing retention of shortfin mako sharks 
would not be consistent with the purpose of this action to implement 
ICCAT Recommendation 21-09, which prohibits the retention of North 
Atlantic shortfin mako sharks in 2022 and 2023. NMFS is implementing a 
flexible shortfin mako shark retention limit with a default limit of 
zero for HMS permit holders. The limit of zero remains in place until 
NMFS changes it following consideration of regulatory criteria for 
inseason adjustment of shark trip limits and consistent with any ICCAT 
retention allowances pursuant to Recommendation 21-09. If a retention 
limit greater than zero is implemented for the recreational fishery, 
the current recreational shortfin mako shark restrictions would again 
also apply, including minimum size limits of 71 inches fork length (FL) 
(180 cm FL) for male and 83 inches FL (210 cm FL) for female shortfin 
mako sharks. Also of note, Recommendation 21-09 limits possible future 
retention of shortfin mako sharks to those that are dead at haulback. 
NMFS may consider additional management measures if ICCAT restrictions 
allow more retention of shortfin mako sharks in the future. For 
example, mandatory recreational catch reporting for pelagic sharks, 
including shortfin mako, may be considered in an upcoming rulemaking 
focused on reporting.
    Comment 12: The State of Georgia commented that retention of 
oceanic whitetip and scalloped hammerhead sharks should be prohibited 
in Atlantic HMS fisheries due to their ESA threatened status.
    Response: This comment is outside the scope of this rulemaking. 
NMFS

[[Page 39378]]

notes, however, that in 2020, NMFS released two Biological Opinions for 
HMS Fisheries under section 7(a)(2) of the ESA. These Biological 
Opinions strongly encouraged the inclusion of oceanic whitetip and 
scalloped hammerhead sharks as prohibited shark species for 
recreational and/or commercial Atlantic HMS fisheries. As a result, 
NMFS is currently considering undertaking rulemaking that considers 
prohibiting the commercial and recreational retention of scalloped 
hammerhead sharks in the Central and Southwest distinct population 
segment and of oceanic whitetip sharks throughout their range, 
consistent with the 2020 Biological Opinions. That proposed rule is 
expected later in 2022. This information is also included in Chapter 
4.8 of the EA.
    Comment 13: Some comments opposed allowing targeted catch-and-
release recreational fishing for shortfin mako sharks.
    Response: NMFS disagrees that targeted catch-and-release 
recreational fishing for shortfin mako sharks should not be permitted 
when the default retention limit of zero is in place. The purpose of 
this action is to implement ICCAT Recommendation 21-09, which prohibits 
retention of shortfin mako sharks. Catch-and-release fishing is 
consistent with the measures in Recommendation 21-09 and with 
implementation of a flexible retention limit with a default of zero. 
The retention limit of zero would prevent recreational fishermen from 
retaining shortfin mako sharks, which would reduce mortality. Allowing 
catch-and-release fishing is consistent with non-retention 
requirements. As described in Chapter 4 of the EA, studies have shown 
that post-release mortality among recreationally caught shortfin mako 
sharks is relatively low. Overall, the recreational measures, including 
a default retention limit of zero while allowing catch-and-release 
fishing, are anticipated to have a minor, beneficial effect on the 
stock. Additionally, by allowing fishermen to catch-and-release 
shortfin mako sharks, data required for stock assessments would 
continue to be collected. Specifically, NMFS could continue to collect 
recreational survey data for shortfin mako sharks, including data on 
effort and catch rates. Regarding socioeconomic impacts on the 
recreational fishery, as described in Chapter 4 of the EA, prohibiting 
catch-and-release fishing for shortfin mako sharks would double the 
estimated loss to supporting businesses and industries in recreational 
trip expenditures, increasing adverse impacts compared to the preferred 
alternative (reduction of $2.4 million in trip expenditures, compared 
to reduction of $1.1 million under the preferred alternative).
    Comment 14: NMFS received a comment that the proposed rule only 
considered commercial fisheries and tournaments. The commenter 
requested that the recreational sector outside of tournaments be 
included if retention is allowed.
    Response: This final rule implements a flexible shortfin mako shark 
retention limit with a default limit of zero in commercial and 
recreational HMS fisheries. To the extent that any future retention is 
allowed, consistent with the inseason trip limit adjustment criteria 
and Recommendation 21-09, any increase of the shortfin mako shark 
retention limit from the default, or subsequent decrease, could apply 
to the commercial fishery, the recreational fishery, or both. If the 
retention limit is increased above zero in the recreational fishery, 
that change could apply to both tournament and non-tournament fishing. 
Individual anglers, in additional to tournaments, are included in this 
action overall and in the analyses in the EA.
    Comment 15: One commenter requested data on where overharvest of 
shortfin mako sharks is occurring and the harvest data for each country 
involved.
    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. 
Reported harvest levels by country are provided in the Task I catch 
data tables in the annual SCRS reports (2021 report available at 
https://www.iccat.int/Documents/Meetings/Docs/2021/REPORTS/2021_SCRS_ENG.pdf, shortfin mako shark data table on pages 260-261) and 
the ICCAT statistical database website (https://www.iccat.int/en/accesingdb.html).
    Comment 16: NMFS received comments that the Magnuson-Stevens Act 
requires the Agency to develop a rebuilding plan for shortfin mako 
sharks since the stock was determined to be in an overfished condition.
    Response: NMFS has an obligation to implement binding ICCAT 
recommendations under ATCA, consistent with our obligations under the 
ICCAT treaty. The Magnuson-Stevens Act requires NMFS to take measures 
to end overfishing and to rebuild the stocks. 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. Addressing overfishing and 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. Under Amendment 11, NMFS established the foundation for 
developing an international rebuilding plan for shortfin mako sharks, 
by adopting measures to end overfishing and taking action at the 
international level through ICCAT to develop a rebuilding plan. As part 
of that measure, Amendment 11 stated that any international management 
recommendations adopted by ICCAT to address shortfin mako shark 
rebuilding and to reduce mortality would be implemented domestically 
consistent with ATCA, including measures implemented under that 
amendment. This action implements ICCAT Recommendation 21-09 in an 
effective way, addressing overfishing and starting to rebuild the 
stock. The measures in Recommendation 21-09 were adopted as part of a 
rebuilding program for North Atlantic shortfin mako shark starting in 
2022, with the objectives to ``end overfishing immediately and 
gradually achieve biomass levels sufficient to support maximum 
sustainable yield (MSY) by 2070 with a probability of a range of 
between 60 and 70 percent at least.''
    Comment 17: One commenter stated that NMFS should specify and 
implement additional catch monitoring and reporting measures to collect 
accurate and precise shortfin mako shark catch and bycatch information. 
Suggested measures include improving recreational data, enhancing 
commercial monitoring, and creating a public reporting portal for the 
recreational and commercial fisheries.
    Response: NMFS agrees that catch monitoring and reporting are 
critical components of managing shortfin mako sharks, both at ICCAT and 
domestically, and that improvements to recreational data reporting are 
necessary at the international level. Toward this end, the United 
States advocated for strong reporting requirements to be included in 
Recommendation 21-09, including that ICCAT parties present their 
statistical methodology used to estimate dead discards and live 
releases to the SCRS

[[Page 39379]]

and that the SCRS review and approve or provide feedback on those 
methods, and that parties that do not appropriately report their 
shortfin mako shark landings and discards would not be able to retain 
this species when retention is otherwise allowable. These provisions 
were included in the recommendation (see paragraphs 13 and 14).
    NMFS is not adopting additional catch monitoring and reporting 
requirements in this action. The purpose of this action is to implement 
ICCAT Recommendation 21-09. U.S. shortfin mako shark catch monitoring 
and reporting meet the requirements of Recommendation 21-09 and other 
relevant ICCAT recommendations, as well as domestic requirements. 
Therefore, NMFS does not agree that additional measures should be 
implemented under this action. Enhanced reporting may be considered in 
future rulemakings, for example, mandatory reporting of recreational 
catch of all pelagic sharks.
    Comment 18: NMFS received a comment that the Agency should require 
full-chain traceability for all catches of shortfin mako sharks through 
the Seafood Import Monitoring Program and the pending Food and Drug 
Administration traceability rules, in order to close a loophole for any 
illegal catch of North Atlantic shortfin mako sharks.
    Response: This comment is beyond the scope of this rulemaking. The 
purpose of this action is to implement ICCAT Recommendation 21-09, 
which prohibits the retention of North Atlantic shortfin mako sharks 
caught in association with ICCAT fisheries in 2022 and 2023, among 
other measures. For more information on the Seafood Import Monitoring 
Program, please refer to the website: https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program.
    Comment 19: NMFS received comments that the Agency recommends a 
probability of 70 percent for rebuilding of overfished stocks in 
domestic fisheries, which commenters stated was not in line with past 
U.S. proposals on shortfin mako shark management at ICCAT, or with the 
250-mt mortality threshold in Recommendation 21-09.
    Response: Consistent with the 2006 Consolidated HMS FMP, the HMS 
management risk policy for most Atlantic shark stocks is to ensure a 
70-percent likelihood of success in ending and preventing overfishing, 
rebuilding overfished stocks, and maintaining healthy stocks, because 
most sharks have low reproductive potential, are long-lived, and have 
slow population growth rates. Within the existing risk policy, a range 
between 50 and 70 percent likelihood of success has also been 
considered depending on the stock and relevant circumstances, and is 
determined on a case-by-case basis.
    The purpose of this action is to implement ICCAT Recommendation 21-
09 on North Atlantic shortfin mako sharks. The measures in 
Recommendation 21-09 were adopted as part of a rebuilding program for 
North Atlantic shortfin mako shark starting in 2022 with the objectives 
to ``end overfishing immediately and gradually achieve biomass levels 
sufficient to support MSY by 2070 with a probability of a range of 
between 60 and 70 percent at least.'' These measures are consistent 
with ICCAT Recommendation 11-13 on the principles of decision making 
for ICCAT conservation and management measures and are also consistent 
with the HMS shark management risk policy and Magnuson-Stevens Act 
requirements.
    Comment 20: One comment suggested that NMFS should consider the 
example of barndoor skate management, in which only limited landings 
under special permits were allowed before the population was declared 
fully rebuilt.
    Response: Barndoor skates are managed by the New England Fishery 
Management Council under the Northeast Skate Complex FMP (Skate FMP). 
The stock was determined to be overfished and possession and landing 
were prohibited in 2003 when the Skate FMP was first implemented (68 FR 
49693, August 19, 2003). As the stock was rebuilding, segments of the 
commercial skate fishery expressed an interest in developing an 
experimental fishery where limited landings would be permitted while 
collecting fishery and biological data. The study was approved under an 
EFP in 2014 (79 FR 26414, May 8, 2014), and the retention prohibition 
was ultimately removed in 2018 after the barndoor skate stock was 
determined to be rebuilt (83 FR 48985, September 28, 2018). While NMFS 
and the New England Fishery Management Council felt that this approach 
and timing were appropriate given the stock conditions and specific 
fishery circumstances in this case, there are a wide variety of 
considerations and information that fishery managers must evaluate when 
determining whether to prohibit retention of a species and potentially 
permitting retention of prohibited species. There are a number of 
critical differences between the barndoor skate fishery and fisheries 
that catch shortfin mako sharks; for example, barndoor skate is not 
internationally managed, is not a North Atlantic-wide stock, and does 
not have a recreational fishery.
    The purpose of this action is to implement ICCAT Recommendation 21-
09, including allowing for the possibility of limited future retention 
of shortfin mako sharks as determined by ICCAT consistent with this 
recommendation. Prohibiting shortfin mako shark retention while also 
allowing limited commercial retention under EFPs would not be 
consistent with the purpose of this action. Therefore, NMFS does not 
agree that barndoor skate fishery management is an appropriate model 
for U.S. shortfin mako shark fishery management.
    Comment 21: NMFS received comments that the Agency should expand 
the electronic monitoring requirement for retention of shortfin mako 
sharks that are dead at haulback in commercial fisheries to cover 
vessels fishing with bottom longline or gillnet gear, in addition to 
vessels fishing with pelagic longline gear.
    Response: In this action, the flexible shortfin mako shark 
retention limit with a default of zero applies 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 described in the responses to Comments 8 and 10. NMFS did 
not, however, implement a requirement that electronic monitoring be 
onboard in these fisheries in Amendment 11, because bottom longline and 
gillnet fisheries have minimal interactions with this species, and 
electronic monitoring was unnecessary to track such interactions 
effectively. The details of the bottom longline and gillnet 
requirements under Amendment 11 were referenced in this action in order 
to better explain the scope of the gears included under changes to the 
shortfin mako shark retention limit. However, NMFS did not propose or 
consider any changes to the electronic monitoring requirements in this 
action. The purpose of the action is to implement ICCAT Recommendation 
21-09, which does not require any regulatory changes in the United 
States regarding electronic monitoring. Therefore, this comment is 
beyond the scope of this rulemaking.
    Comment 22: NMFS received comments encouraging the Agency to 
respond to the 2021 petition from Defenders of Wildlife to list 
shortfin mako sharks as a threatened or endangered species under the 
ESA.
    Response: NMFS is actively working on the 12-month finding to 
consider

[[Page 39380]]

listing shortfin mako sharks under the ESA and plans to release the 
determination soon. Because this comment refers to listing species 
under the ESA, this is beyond the scope of this rulemaking.
    Comment 23: NMFS received comments that the United States should 
seek to extend no retention of shortfin mako sharks at ICCAT, rather 
than adhering to possible future retention according to Recommendation 
21-09. Another comment suggested that the United States should submit a 
proposal at ICCAT to limit total mortality of South Atlantic shortfin 
mako sharks, including the same reporting requirements as in 
Recommendation 21-09.
    Response: These comments are beyond the scope of this rulemaking. 
To the extent that these comments are suggesting development of U.S. 
proposals at ICCAT, U.S. proposals and priorities for ICCAT generally 
are discussed in the context of the U.S. ICCAT Advisory Committee 
meetings, which typically have at least one session open to the public.
    Comment 24: NMFS received a comment calling for banning longline 
gear and all shark fisheries.
    Response: National Standard 1 of the Magnuson-Stevens Act requires 
NMFS to prevent overfishing while achieving, on a continuing basis, 
optimum yield from each fishery for the U.S. fishing industry. NMFS 
continually monitors the federal shark fisheries and, based on the best 
available scientific information, takes action needed to conserve and 
manage the fisheries. The purpose of this action is to implement ICCAT 
Recommendation 21-09 regarding North Atlantic shortfin mako sharks, as 
necessary and appropriate pursuant to ATCA, and to achieve domestic 
management objectives under the Magnuson-Stevens Act. Recommendation 
21-09 prohibits retention of North Atlantic shortfin mako sharks caught 
in association with ICCAT fisheries in 2022 and 2023, among other 
measures. The measures in Recommendation 21-09 were adopted as part of 
a rebuilding program for North Atlantic shortfin mako shark starting in 
2022, with the objectives to ``end overfishing immediately and 
gradually achieve biomass levels sufficient to support maximum 
sustainable yield (MSY) by 2070 with a probability of a range of 
between 60 and 70 percent at least.'' Banning longline gear and shark 
fisheries is beyond the scope of this action.

Classification

    NMFS is issuing this rule pursuant to section 305(d) of 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.
    There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effective date and to make the rule effective three days after 
publication in the Federal Register. Further delaying the effectiveness 
of these regulations could undermine the purpose of this action to 
implement ICCAT Recommendation 21-09, which was adopted in November 
2021 and enters into force June 17, 2022. If effectiveness is delayed, 
retention of shortfin mako sharks will continue to be allowed in 
Atlantic HMS fisheries under the current regulations well past the 
entry into force date of, and contrary to the requirements of, this 
binding international measure. For all of these reasons, there is good 
cause to waive the 30-day delay in the date of effectiveness.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this rule. The FRFA incorporates the initial regulatory flexibility 
analysis (IRFA), a summary of the significant issues raised by the 
public comments in response to the IRFA, NMFS' responses to those 
comments, and a summary of the analyses completed to support the 
action. A copy of this analysis is available from NMFS (see ADDRESSES). 
A summary is provided below.
    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) requires 
agencies to state the need for, and objective of, the final action. 
This action is needed because the current HMS regulations allow 
retention of shortfin mako sharks in certain limited circumstances in 
HMS fisheries, which is inconsistent with the 2021 ICCAT 
recommendation. Under ATCA, NMFS is required to promulgate regulations 
as necessary and appropriate to implement binding ICCAT measures. This 
action is also needed in the non-ICCAT fisheries to provide consistency 
for the regulated community and for enforcement purposes, making the 
management measures more effective in addressing overfishing and 
starting to rebuild the stock.
    The objective of this action is to implement ICCAT Recommendation 
21-09 regarding North Atlantic shortfin mako sharks, as necessary and 
appropriate pursuant to ATCA, and to achieve domestic management 
objectives under the Magnuson-Stevens Act. Recommendation 21-09 
prohibits retention of North Atlantic shortfin mako sharks caught in 
association with ICCAT fisheries in 2022 and 2023, among other 
measures. The measures in Recommendation 21-09 were adopted as part of 
a rebuilding program for North Atlantic shortfin mako shark starting in 
2022, with the objectives to ``end overfishing immediately and 
gradually achieve biomass levels sufficient to support maximum 
sustainable yield (MSY) by 2070 with a probability of a range of 
between 60 and 70 percent at least.'' See Chapter 1 of the EA for a 
full description of the need for and objectives of the final rule.
    Section 604(a)(2) of the RFA requires a summary of significant 
issues raised by the public in response to the IRFA, a summary of the 
agency's assessment of such issues, and a statement of any changes made 
as a result of the comments. NMFS received 22 written comments on the 
proposed rule and Draft EA during the public comment period. A summary 
of those comments and the agency's responses are described above. The 
comments did not refer to the IRFA or the economic impacts of the rule. 
One commenter (see Comment 3) noted that the rule would not have 
substantial economic impacts on commercial or for-hire fisheries or HMS 
tournaments.
    Section 604(a)(3) of the RFA requires the response of the agency to 
any comments filed by the Chief Counsel for Advocacy of the Small 
Business Administration (SBA) in response to the proposed rule, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of the SBA comments. NMFS did not receive comments 
from the Chief Counsel for Advocacy of the SBA in response to the 
proposed rule.
    Section 604(a)(4) of the RFA requires agencies to provide 
descriptions of, and where feasible, 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 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

[[Page 39381]]

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 
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 final 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 final rule would apply to the 213 Shark Directed limited access 
permit (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 the RFA, nor would there be disproportionate economic 
impacts between large and small entities.
    Section 604(a)(5) of the RFA requires agencies to describe any new 
reporting, record-keeping, and other compliance requirements. This 
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 the agency has 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.
    As described below, NMFS analyzed several different alternatives in 
this final rulemaking and provides rationales for identifying the 
preferred alternatives to achieve the desired objectives. The FRFA 
assumes that each vessel will have similar catch and gross revenues to 
show the relative impact of the final 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 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 Shark Directed or Shark Incidental 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

[[Page 39382]]

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 add shortfin mako sharks to the prohibited 
sharks species group 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 (list of prohibited 
sharks), 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.
    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 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, a web page that also serves as small entity 
compliance guide (the guide) was prepared. This final rule and the 
guide are available on the HMS Management Division website at https://www.fisheries.noaa.gov/action/proposed-changes-atlantic-shortfin-mako-shark-retention-limits or by contacting Carrie Soltanoff at 
<a href="/cdn-cgi/l/email-protection#eb888a9999828ec59884879f8a85848d8dab85848a8ac58c849d"><span class="__cf_email__" data-cfemail="25464457574c400b564a4951444b4a4343654b4a44440b424a53">[email protected]</span></a> or 301-427-8503.

List of Subjects in 50 CFR Part 635

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

    Dated: June 27, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

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

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


0
2. In Sec.  635.20, 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 paragraph (a)(4) introductory text;

[[Page 39383]]

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 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 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. 2022-14116 Filed 6-30-22; 8:45 am]
BILLING CODE 3510-22-P


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