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Rule2023-28900

Atlantic Highly Migratory Species; Prohibiting Retention of Oceanic Whitetip Sharks in U.S. Atlantic Waters and Hammerhead Sharks in the U.S. Caribbean Sea

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Published

January 3, 2024

Effective

February 2, 2024

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

In this final rule, NMFS is prohibiting the retention and possession of oceanic whitetip sharks (Carcharhinus longimanus) in U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea, and hammerhead sharks (great (Sphyrna mokarran), smooth (S. zygaena), and scalloped (S. lewini) hammerhead sharks) in U.S. waters of the Caribbean Sea. This action is responsive to two Biological Opinions (BiOps) for Atlantic Highly Migratory Species (HMS): one for the pelagic longline (PLL) fishery and one for the non- PLL fisheries. The BiOps strongly encouraged the inclusion of the scalloped hammerhead shark Central and Southwest Atlantic Distinct Population Segment (DPS) and the oceanic whitetip shark on the list of prohibited sharks for recreational and/or commercial HMS fisheries. These prohibitions apply to all HMS permitted fishermen.

Full Text

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<title>Federal Register, Volume 89 Issue 2 (Wednesday, January 3, 2024)</title>
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[Federal Register Volume 89, Number 2 (Wednesday, January 3, 2024)]
[Rules and Regulations]
[Pages 278-284]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28900]

[[Page 278]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 231228-0317]
RIN 0648-BK54

Atlantic Highly Migratory Species; Prohibiting Retention of
Oceanic Whitetip Sharks in U.S. Atlantic Waters and Hammerhead Sharks
in the U.S. Caribbean Sea

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 prohibiting the retention and
possession of oceanic whitetip sharks (Carcharhinus longimanus) in U.S.
waters of the Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea, and hammerhead sharks (great (Sphyrna mokarran), smooth
(S. zygaena), and scalloped (S. lewini) hammerhead sharks) in U.S.
waters of the Caribbean Sea. This action is responsive to two
Biological Opinions (BiOps) for Atlantic Highly Migratory Species
(HMS): one for the pelagic longline (PLL) fishery and one for the non-
PLL fisheries. The BiOps strongly encouraged the inclusion of the
scalloped hammerhead shark Central and Southwest Atlantic Distinct
Population Segment (DPS) and the oceanic whitetip shark on the list of
prohibited sharks for recreational and/or commercial HMS fisheries.
These prohibitions apply to all HMS permitted fishermen.

DATES: This final rule is effective February 2, 2024.

ADDRESSES: Additional information related to this final rule, including
electronic copies of the supporting documents are available from the
HMS Management Division website at <a href="https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species">https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species</a>, on <a href="https://www.regulations.gov">https://www.regulations.gov</a>
(enter ``NOAA-NMFS-2023-0025'' in the Search box), or by contacting Ann
Williamson at <a href="/cdn-cgi/l/email-protection#c9a8a7a7e7bea0a5a5a0a8a4baa6a789a7a6a8a8e7aea6bf">[email&#160;protected]</a> or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Ann Williamson,
<a href="/cdn-cgi/l/email-protection#05646b6b2b726c69696c6468766a6b456b6a64642b626a73">[email&#160;protected]</a>, Becky Curtis, <a href="/cdn-cgi/l/email-protection#a3c1c6c0c8da8dc0d6d1d7cad0e3cdccc2c28dc4ccd5">[email&#160;protected]</a>, or Karyl
Brewster-Geisz, <a href="/cdn-cgi/l/email-protection#4a212b3833266428382f3d393e2f38672d2f2339300a24252b2b642d253c">[email&#160;protected]</a>, at 301-427-8503.

SUPPLEMENTARY INFORMATION:

Background

Atlantic shark fisheries are managed under the 2006 Consolidated
HMS Fishery Management Plan (FMP) and its amendments, pursuant to the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act; 16 U.S.C. 1801 et seq.) and consistent with the Atlantic
Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.). HMS implementing
regulations are at 50 CFR part 635.
Background information about the need to prohibit the retention and
possession of oceanic whitetip sharks in U.S. waters of the Atlantic
Ocean, including the Gulf of Mexico and Caribbean Sea, and hammerhead
sharks (great, smooth, and scalloped hammerhead sharks) in U.S. waters
of the Caribbean Sea was provided in the preamble to the proposed rule
(88 FR 17171, March 22, 2023) and is not repeated here. The comment
period for the proposed rule closed on May 22, 2023. NMFS received 93
written comments as well as oral comments during the public hearing
held by webinar on April 25, 2023. 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 considered for 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, NMFS issued two BiOps in May
2020: the ``Biological Opinion on the Operation of the HMS Fisheries
excluding Pelagic Longline'' and the ``Biological Opinion on the
Operation of the HMS Pelagic Longline Fishery,'' prepared under section
7(a)(2) of the Endangered Species Act (ESA). These BiOps concluded
consultation on the HMS PLL and non-PLL fisheries, as managed under the
2006 Consolidated HMS FMP and its amendments. The BiOps included
conservation recommendations for oceanic whitetip shark and the
scalloped hammerhead shark Central and Southwest Atlantic DPS that
strongly encouraged the inclusion of these federally protected species
on the HMS list of prohibited shark species for recreational and/or
commercial HMS fisheries.
In order to reduce the mortality of oceanic whitetip sharks and the
Central and Southwest Atlantic DPS of scalloped hammerhead sharks,
which are both listed as threatened under the ESA, and implement two
conservation recommendations from the May 2020 BiOps, this final rule
will add oceanic whitetip shark to the prohibited shark species group,
remove oceanic whitetip shark from the list of pelagic indicator
species, and prohibit the possession and retention of great, smooth,
and scalloped hammerhead sharks in the U.S. Caribbean region. This
final rule applies to all HMS permitted fishermen.
Under this final rule, oceanic whitetip sharks are added to the
prohibited shark species group using the criteria in 50 CFR 635.34(c).
Retention, possession, landing, sale, and purchase of oceanic whitetip
sharks or parts of oceanic whitetip sharks are prohibited in all
commercial and recreational HMS fisheries in U.S. waters of the
Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. Oceanic
whitetip sharks are also removed from the list of pelagic indicator
species (Table 2 to Appendix A to Part 635). Sharks in the prohibited
shark species group cannot be possessed or landed and therefore, their
presence on board a vessel cannot be considered a useful indicator of a
pelagic longline vessel.
Additionally, under this final rule, the possession and retention
of hammerhead sharks in the large coastal shark (LCS) complex (i.e.,
great, smooth, and scalloped hammerhead sharks) is prohibited in all
HMS fisheries in the U.S. Caribbean region, as ``Caribbean'' is defined
at 50 CFR 622.2. Retention of hammerhead sharks is currently not
allowed for commercial vessels in the PLL fishery. This final rule
prohibits retention and possession of LCS hammerhead sharks for all HMS
commercial and recreational permit holders in the U.S. Caribbean
region, including in those instances where it was previously authorized
(i.e., recreational permit holders with a shark endorsement when tunas,
swordfish, and/or billfish are not retained). Due to the difficulty in
differentiating between the various species of LCS hammerhead sharks,
this final rule applies to all LCS hammerhead sharks to mitigate the
potential for continued mortality of scalloped hammerhead sharks from
fishermen either bringing hammerhead sharks on board to identify the
species (increasing the likelihood of post-release

[[Page 279]]

mortality) or unintentionally retaining a scalloped hammerhead shark
due to misidentification.

Response to Comments

Written comments can be found at <a href="http://www.regulations.gov">www.regulations.gov</a>; type ``NOAA-
NMFS-2023-0025'' in the Search box (note: copying and pasting the FDMS
Docket Number directly from this document may not yield search
results). Below, NMFS summarizes and responds to the comments made on
the proposed rule during the comment period.
Comment 1: NMFS received many comments in support of the proposed
measures for oceanic whitetip sharks (preferred Alternative A2 in the
EA for this action). Commenters stated that they supported these
measures because oceanic whitetip sharks are listed as threatened under
the ESA and endangered on the International Union for the Conservation
of Nature (IUCN) Red List of Threatened Species. Some commenters
supported adding oceanic whitetip sharks to the prohibited shark
species group to address overfishing concerns and promote population
recovery of an apex predator that is critical for marine ecosystem
health.
Response: NMFS agrees that these measures will reduce mortality of
oceanic whitetip sharks and promote the conservation and recovery of
this threatened species.
Regarding the IUCN Red List status of oceanic whitetip sharks, NMFS
scientists participate in species assessments for the Red List, but
NMFS does not base management actions on IUCN designations. The IUCN
uses different criteria. NMFS adheres to ESA-applicable criteria for
determining whether a species is threatened or endangered. NMFS
determines whether stocks are overfished or overfishing is occurring
pursuant to the Magnuson-Stevens Act.
Comment 2: Several commenters supported the proposed measures for
LCS hammerhead sharks (preferred Alternative B4 in the EA for this
action). However, many of those commenters stated that the prohibition
on possession and retention of LCS hammerhead sharks should be extended
to all Federal waters of the northwest Atlantic Ocean, Gulf of Mexico,
and Caribbean Sea. One commenter specifically stated that all
hammerhead sharks should be added to the prohibited shark species
group. Reasons that commenters provided for expanding the proposed
measures include: great and smooth hammerhead sharks have an unknown
stock status in the Atlantic Ocean but evidence suggests that
populations are in decline; scalloped hammerhead sharks are overfished
with overfishing occurring; scalloped hammerhead sharks from the
Central and Southwest DPS likely cross into the Northwest Atlantic and
Gulf of Mexico where they could be legally possessed and retained;
fishing vessels from outside U.S. waters of the Caribbean Sea could
possess and retain hammerhead sharks as long as they are landed outside
of the U.S. Caribbean Exclusive Economic Zone; hammerhead sharks are
threatened by global fishing pressure and are listed as critically
endangered (scalloped and great hammerhead sharks) or vulnerable
(smooth hammerhead shark) by the IUCN on its Red List; and hammerhead
sharks are particularly susceptible to post-release mortality as
bycatch in commercial fisheries and through targeted catch-and-release
fishing in the recreational fishery.
Response: NMFS disagrees that the retention and possession of LCS
hammerhead sharks should be prohibited in all Federal waters of the
northwest Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Only the
Central and Southwest Atlantic DPS of scalloped hammerhead sharks is
listed as threatened under the ESA, and prohibiting the retention and
possession of LCS hammerhead sharks outside U.S. waters of the
Caribbean would unnecessarily limit retention of hammerhead sharks that
are still authorized for commercial and recreational HMS fisheries in
U.S. waters of the Atlantic Ocean and Gulf of Mexico.
In Federal waters of the Atlantic Ocean, including the Gulf of
Mexico and Caribbean Sea, only scalloped hammerhead sharks have a
determination of overfished with overfishing occurring, based on a
stock assessment that was determined to be the best scientific
information available by NMFS. The stock statuses for great and smooth
hammerhead sharks are unknown. However, all hammerhead shark species
(great, smooth, and scalloped) are currently being assessed through the
Southeast Data, Assessment, and Review (SEDAR) stock assessment process
(SEDAR 77). SEDAR is the process by which most domestic Atlantic shark
stocks are assessed. While SEDAR 77 has not yet been finalized, initial
analyses indicate that great hammerhead sharks are likely overfished
but not experiencing overfishing, smooth hammerhead sharks are likely
not experiencing overfishing, and scalloped hammerhead sharks are
likely not overfished and not experiencing overfishing. Once the
assessment is complete (expected in 2024), NMFS will consider
management measures for these species, as appropriate.
Regarding the IUCN Red List status of great, smooth, and scalloped
hammerhead sharks, NMFS does not base management actions on IUCN
designations, as previously stated.
Regarding concern about retention of the Central and Southwest DPS
of scalloped hammerhead sharks in the Northwest Atlantic and Gulf of
Mexico, encountering scalloped hammerhead sharks from the Central and
Southwest DPS in these areas would be extremely unlikely, as they are
outside of the DPS boundary. In 2014, NMFS conducted a status review
report in response to a petition to list the scalloped hammerhead shark
under the ESA (Miller et al. 2014). During that analysis, NMFS
determined that the Central and Southwest Atlantic DPS of scalloped
hammerhead sharks have genetic differences that indicate they are
isolated from other Atlantic subpopulations. Additionally, general
tagging studies and genetic analyses suggest that scalloped hammerhead
sharks do not travel over open ocean but make limited migrations along
coastlines, continental margins, and submarine features. There was no
observed mixing of the Central and Southwest Atlantic DPS with the
Northwest Atlantic and Gulf of Mexico population.
Under the final measures, the possession and retention of LCS
hammerhead sharks would be prohibited in all HMS fisheries in the U.S.
Caribbean region. Fishermen that possess and retain hammerhead sharks
in U.S. waters of the Caribbean Sea would be in violation of the
regulations, even if they land the sharks outside of the U.S. Caribbean
region.
Regarding concern about hammerhead shark sensitivity to post-
release mortality, there are limited direct estimates of total discard
mortality for hammerhead sharks. However, evidence suggests that
hammerhead sharks are vulnerable to the effects of capture in
commercial and recreational fisheries. According to preliminary data
from the SEDAR 77 hammerhead shark stock assessment, the assumed total
discard mortality rate (defined as the immediate plus delayed discard-
mortality rate resulting from the fishing event) for great hammerhead
sharks is 41.9 percent in commercial bottom longline (BLL) fisheries
and 20 percent in recreational fisheries; for smooth hammerhead sharks
is 41.5 percent in commercial gillnet fisheries; and for scalloped
hammerheads is 87.5 percent in commercial purse seine fisheries.

[[Page 280]]

NMFS believes that prohibiting the possession and retention of all
LCS hammerhead sharks in the U.S. Caribbean region will reduce the
likelihood of post-release mortality because fishermen will not need to
bring them on board for species identification. Because fishermen would
be unable to target LCS hammerhead sharks, fishermen would be
prohibited from bringing them onboard the vessel and must release them
in the water, in a manner that maximizes survival, thereby reducing
post-release mortality. While the management measures are not expected
to substantially alter current fishing practices or bycatch mortality
rates, because LCS hammerhead sharks cannot be targeted, lower rates of
bycatch would reduce the rate of mortality.
Regarding the prohibited shark species group, NMFS does not agree
that all hammerhead sharks should be added to the prohibited shark
species group. NMFS may add a species to the prohibited shark species
group if the species is determined to meet at least two of the four
criteria at 50 CFR 635.34(c): (1) biological information indicates that
the stock warrants protection; (2) information indicates that the
species is rarely encountered or observed caught in HMS fisheries; (3)
information indicates that the species is not commonly encountered or
observed caught as bycatch in fishing operations for species other than
HMS; and (4) the species is difficult to distinguish from other
prohibited species.
Regarding the first and fourth criteria, the scalloped hammerhead
shark Central and Southwest Atlantic DPS is listed as a threatened
species under the ESA, and distinguishing hammerhead sharks from each
other is quite difficult even for the most seasoned fishermen. However,
at this time, NMFS has decided not to add scalloped hammerhead sharks
to the prohibited shark species group since only two scalloped
hammerhead DPSs are designated as ``threatened'' under the ESA; only
one DPS occurs in U.S. waters; and adding the sharks to the group would
unnecessarily limit retention of hammerhead sharks that are still
authorized for commercial and recreational HMS fisheries in U.S. waters
of the Atlantic Ocean and Gulf of Mexico. Additionally, the second and
third criteria are not met by scalloped hammerhead sharks. This species
is encountered and observed caught in HMS fisheries. From 2017 through
2021, there was an annual average of 16,170 pounds dressed weight (lb
dw) of scalloped hammerhead sharks landed in the commercial sector in
U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea. Moreover, this species is also encountered and observed
as bycatch in fishing operations for species other than HMS, for
example, in the Atlantic and Gulf of Mexico gillnet fishery.
Great hammerhead sharks and smooth hammerhead sharks meet only one
of the four criteria at 50 CFR 635.34(c), which would not warrant
addition to the prohibited shark species group at this time. Regarding
the fourth criterion, distinguishing hammerhead sharks from each other
is quite difficult even for the most seasoned fishermen. However, the
first, second, or third criteria are not met by great or smooth
hammerhead sharks. These species are not listed as endangered or
threatened under the ESA, and, initial analyses from an ongoing stock
assessment (SEDAR 77, not yet final) indicate that great hammerhead
sharks are likely overfished but not experiencing overfishing, and
smooth hammerhead sharks are likely not experiencing overfishing.
Additionally, they are encountered and observed caught in HMS
fisheries. From 2017 through 2021, there was an average of 321,653 lb
dw of hammerhead sharks landed in the commercial sector in U.S. waters
of the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea.
Moreover, these species are encountered and observed as bycatch in
fishing operations for species other than HMS, for example, in the
Atlantic and Gulf of Mexico gillnet fishery.
Comment 3: One commenter stated that NMFS should specify and
implement additional catch monitoring and reporting measures to collect
accurate and precise oceanic whitetip shark and hammerhead shark catch
and bycatch information. Suggested measures include improving
recreational catch data, enhancing commercial monitoring, and creating
a public reporting portal for recreational and commercial fisheries.
Response: NMFS does not agree with adopting additional catch
monitoring and reporting requirements in this action, as the purpose of
this action is to reduce the mortality of oceanic whitetip sharks and
the Central and Southwest Atlantic DPS of scalloped hammerhead sharks.
However, NMFS may consider additional or revised reporting requirements
in future rulemakings. For example, NMFS recently announced an advanced
notice of proposed rulemaking (ANPR) to modify or expand reporting
requirements for HMS (88 FR 30699, May 12, 2023). The comment period on
the ANPR ended on August 18, 2023. NMFS is currently reviewing the
comments received and determining next steps.
Comment 4: One commenter suggested that NMFS should require full-
chain traceability for all catches of oceanic whitetip sharks and
hammerhead sharks through the Seafood Import Monitoring Program (SIMP)
and the Food and Drug Administration traceability rules, in order to
close a loophole for any illegal catch of oceanic whitetip sharks and
hammerhead sharks.
Response: This comment is beyond the scope of this rulemaking. The
purpose of this action is to reduce the mortality of oceanic whitetip
sharks and the Central and Southwest Atlantic DPS of scalloped
hammerhead sharks. NMFS notes that sharks are subject to SIMP's data
reporting requirements at the time of entry for imported fish or fish
products and recordkeeping requirements for fish and fish products
entered into U.S. commerce. See 50 CFR 300.324. For more information on
SIMP, please refer to the website: <a href="https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program">https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program</a>.
Comment 5: One commenter stated that NMFS should improve
coordination across NMFS divisions and other agencies to improve the
effectiveness of various national and international safeguards for
oceanic whitetip sharks and hammerhead sharks.
Response: NMFS agrees that coordination is crucial for the
effective management of HMS fisheries, including those for oceanic
whitetip and hammerhead sharks. NMFS works closely with our partners,
including the U.S. Department of State and other Federal partners, to
promote global shark conservation and management.
Comment 6: One commenter urged NMFS to take several additional
measures to address non-lethal and lethal take from bycatch in
commercial fisheries and intentional targeting by recreational catch-
and-release fishing. Specifically, they stated that the proposed
measures would not address fishing-related mortality as a result of
bycatch and post-release mortality in catch-and-release fishing.
Because hammerhead sharks are especially prone to stress, injury, and
death after release, allowing the intentional take of the Central and
Southwest Atlantic DPS of scalloped hammerhead sharks (as a result of
post-release mortality in catch-and-release fishing) is not consistent
with NMFS' obligations under the ESA.
Response: NMFS does not agree that additional measures to address
take are necessary. HMS fisheries, including

[[Page 281]]

recreational catch-and-release fishing, are consistent with the
Reasonable and Prudent Measures and Terms and Conditions specified in
the 2020 BiOps. Additionally, measures being finalized with this rule
are in furtherance of conservation recommendations related to scalloped
hammerhead DPSs. If determinations for this species under the ESA were
to change, NMFS would reconsider appropriate management measures at
that time.
Recreational and commercial interactions with hammerhead sharks in
the U.S. Caribbean region, and the risk of post-release mortality of
the Central and Southwest Atlantic DPS of scalloped hammerhead sharks,
are relatively low. According to recreational catch data, the last
reported encounter with a hammerhead shark in the U.S. Caribbean region
was in 2016, and before that, it was in 2012. This suggests that
interactions between recreational anglers and hammerhead sharks in the
Caribbean is rare. Additionally, according to commercial catch data,
scalloped hammerhead sharks account for little to none of the landings
in the U.S. Caribbean region. Because the Central and Southwest
Atlantic DPS of scalloped hammerhead sharks is only found in U.S.
waters of the Caribbean Sea, commercial and recreational interactions
with hammerhead sharks are relatively low in this region, and the
commercial and recreational possession and retention of hammerhead
sharks is now prohibited through this action, NMFS considers the risk
of recreational post-release mortality of hammerhead sharks to be
minimal. Even if the species is caught in the U.S. Caribbean and not
reported, NMFS would also expect the risk of recreational post-release
mortality to be minimal given the handgears used in the region, which
are generally associated with a low risk of mortality. As stated above,
preliminary data from the SEDAR 77 hammerhead shark stock assessment
assume total discard mortality rate (defined as the immediate plus
delayed discard-mortality rate resulting from the fishing event) for
hammerhead sharks is 20 percent in recreational fisheries.
Comment 7: One commenter stated that a prohibition on the retention
and possession of all hammerhead sharks in the Atlantic Ocean would
bring Federal regulations into alignment with Regional Fishery
Management Organizations (RFMOs), specifically the International
Commission for the Conservation of Atlantic Tunas, the Inter-American
Tropical Tuna Commission, Western Central Pacific Fisheries Commission,
and Indian Ocean Tuna Commission.
Response: Current HMS regulations, as amended by this rule, are
consistent with RFMO measures. Notably, in 2011, NMFS implemented ICCAT
Recommendation 10-08 that prohibited the retention, transshipping,
landing, storing, or selling of hammerhead sharks in the family
Sphyrnidae (except bonnethead sharks) caught in association with
fisheries managed by ICCAT. The Inter-American Tropical Tuna
Commission, Western Central Pacific Fisheries Commission, and Indian
Ocean Tuna Commission address conservation and management in the
Pacific Ocean and Indian Ocean, not the Atlantic Ocean.
Comment 8: One commenter stated that prohibiting the retention of
hammerhead sharks in the Atlantic Ocean prior to the completion of a
stock assessment would be premature and in conflict with the Magnuson-
Stevens Act.
Response: Consistent with relevant conservation recommendations
from two BiOps, the final measures for hammerhead sharks are limited to
the U.S. Caribbean region, and do not apply in other Federal waters of
the Atlantic Ocean, including the Gulf of Mexico. Although only the
Central and Southwest Atlantic DPS of scalloped hammerhead sharks is
threatened under the ESA, the final measures apply to great and smooth
hammerhead sharks in the U.S. Caribbean region due to the difficulty in
differentiating between the various species of hammerhead sharks. As
previously stated, all hammerhead shark species are being assessed
through SEDAR 77. Once that stock assessment is completed, NMFS will
consider management measures for these species, if appropriate.
Comment 9: One commenter asked why the proposed measures are
limited to Federal waters of the Atlantic Ocean and not the Pacific
Ocean.
Response: The BiOps that provided conservation recommendations for
oceanic whitetip shark and the scalloped hammerhead shark Central and
Southwest Atlantic DPS were for the HMS PLL and non-PLL fisheries.
These fisheries operate in the Atlantic Ocean, including the Gulf of
Mexico and Caribbean Sea, and subject to management under the 2006
Consolidated HMS FMP and its amendments. Shark species found in U.S.
waters of the Pacific Ocean are subject to management under different
FMPs.
Comment 10: NMFS received several comments requesting a prohibition
on all shark fishing given the important role sharks play in marine
ecosystem health.
Response: This comment is beyond the scope of this rulemaking. The
purpose of this action is to reduce the mortality of oceanic whitetip
sharks and the Central and Southwest Atlantic DPS of scalloped
hammerhead sharks, which are both listed as threatened under the ESA.
This action does not change the regulations and management measures
currently in place that govern commercial shark fishing in Federal
waters of the northwest Atlantic Ocean, Gulf of Mexico, and Caribbean
Sea.
Comment 11: NMFS received numerous comments regarding concern for
sharks in general. Additionally, some commenters urged NMFS to identify
breeding grounds and nursery habitats for all Atlantic sharks to inform
effective management measures and stress the importance of safe
handling and release protocols.
Response: All of these comments are beyond the scope of this
rulemaking. The purpose of this action is to reduce the mortality of
oceanic whitetip sharks and the Central and Southwest Atlantic DPS of
scalloped hammerhead sharks, which are both listed as threatened under
the ESA. Information about the issues raised in these public comments
can be found in the 2006 Consolidated HMS FMP and its amendments and
the annual Stock Assessment and Fishery Evaluation Report (see
ADDRESSES).

Classification

NMFS is issuing this rule pursuant to section 304(g) 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.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A FRFA was prepared. 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 to be responsive to two 2020 BiOps under section
7(a)(2) of the ESA which addressed the Atlantic HMS PLL and non-PLL
fisheries, as managed under the 2006 Consolidated HMS FMP and its
amendments. The BiOps strongly

[[Page 282]]

encouraged the inclusion of these federally protected species on the
HMS list of prohibited shark species for HMS recreational and/or
commercial HMS fisheries. This action is consistent with the management
goals and objectives of the 2006 Consolidated HMS FMP and its
amendments, the Magnuson-Stevens Act, the 2020 BiOps, and other
applicable law.
The objective of this action is to reduce mortality of oceanic
whitetip sharks and the Central and Southwest Atlantic DPS of scalloped
hammerhead sharks, both listed as threatened under the ESA. This action
would promote the conservation and recovery of these threatened
species.
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
in the rule as a result of the comments. NMFS received 93 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. None of the comments received referred to the IRFA or
the economic impacts of the rule.
Section 604(a)(3) of the RFA requires the agency to respond 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 in the rule as a result of such comments.
NMFS did not receive any comments from the Chief Counsel for Advocacy
of the SBA in response to the proposed rule. Additionally, none of the
public comments received referred to the economic impacts of 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 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 $14 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 $14
million. Regarding those entities that would be directly affected by
the final measures, the average revenue for the entire Atlantic shark
commercial fishery from 2017 through 2021 is $2,579,228, which is well
below the NMFS small business size standard for commercial fishing
businesses of $11 million.
The final rule would apply to the 206 Shark Directed permit
holders, 241 Shark Incidental permit holders, 76 HMS Commercial
Caribbean Small Boat permit holders, 4,175 HMS Charter/Headboat permit
holders, 23,607 HMS Angling permit holders, and 603 Atlantic Tunas
General category and Swordfish General Commercial permit holders. The
HMS Charter/Headboat permit holders have 2,994 shark endorsements and
1,873 commercial sale endorsements; the HMS Angling permit holders have
12,978 shark endorsements; and the Atlantic Tunas General category and
Swordfish General Commercial permit holders have 388 shark
endorsements. In the U.S. Caribbean specifically, this rule would apply
to 27 Commercial Caribbean Small Boat permit holders, 49 HMS Charter/
Headboat permit holders, 12 Swordfish General Commercial permit
holders, and 93 Atlantic Tunas General category permit holders. NMFS
has determined that the final rule would not likely affect any small
governmental jurisdictions, 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. The action
does not contain any new collection of information, reporting, or
record-keeping requirements.
Section 604(a)(6) of the RFA requires agencies to describe the
steps 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 A1, the No Action alternative, would continue to allow
commercial permit holders issued a Shark Directed or Incidental limited
access permit (LAP) using authorized gear (excluding PLL gear) and/or
HMS Charter/Headboat permit with a commercial sale endorsement the
opportunity to land and sell oceanic whitetip sharks when tuna or tuna-
like species are not retained, possessed, on board, or offloaded from,
the vessel on the same trip. Vessels fishing recreationally would
continue to have the ability to retain oceanic whitetip sharks when
tuna or tuna-like species are not possessed on the same recreational
trip. This alternative would not result in any additional economic
impacts for HMS permit holders, and would have neutral economic impacts
on the small entities participating in the fishery.
Alternative A2, the preferred alternative, will add oceanic
whitetip sharks to the prohibited shark species group using the
criteria in Sec. 635.34(c) to prohibit the commercial and recreational
retention of oceanic whitetip sharks in U.S. waters of the Atlantic
Ocean, including the Gulf of Mexico and Caribbean Sea. This alternative
is consistent with the relevant conservation recommendations from both
of the 2020 BiOps. From 2017 through 2021, there have been few
instances of oceanic whitetip sharks being retained in HMS commercial
or recreational shark fisheries in U.S. waters of the Atlantic Ocean,
including the Gulf of Mexico and Caribbean Sea. This alternative could
limit fishing opportunities and lead to fewer fishing trips for
charter/headboat operators. However, oceanic whitetip sharks are rarely
a target species and are worth less than other more valuable target
species. Overall, this alternative would have minor adverse social and
economic impacts on the small entities participating in the fishery.
Under Alternative B1, the No Action alternative, retention of
scalloped hammerhead sharks on vessels targeting tunas, swordfish, and/
or billfish with PLL gear on board would continue to be prohibited.
Commercial permit holders issued a Shark Directed or Incidental LAP
and/or HMS Charter/Headboat permit with a commercial sale endorsement
using other authorized gear that do not target tuna and tuna-like
species (e.g., BLL, gillnet, rod and reel, handline, and bandit gear)
would still be authorized to fish for, and land scalloped hammerhead
sharks subject to existing commercial regulations. This

[[Page 283]]

alternative would not result in any change fishing effort, and would
have neutral economic impacts on the small entities participating in
the fishery.
Under Alternative B2, NMFS would prohibit the commercial and
recreational retention of scalloped hammerhead sharks for shark
commercial and recreational permit holders fishing within the U.S.
Caribbean region. This alternative would be consistent with the
relevant conservation recommendations from both the 2020 BiOps. Between
2017 and 2021, there were no reported commercial landings of scalloped
hammerhead sharks in the U.S. Caribbean region and, therefore, it is
unlikely revenue would be lost from prohibiting retention of this
species. There could be some minor costs associated with discarding or
avoiding scalloped hammerhead sharks within that region. Also, this
alternative could limit fishing opportunities and lead to fewer fishing
trips for charter/headboat operators. This alternative would have
neutral to minor adverse economic impacts on the small entities
participating in the fishery.
Under Alternative B3, NMFS would prohibit the commercial and
recreational retention of scalloped hammerhead sharks for commercial
and recreational permit holders fishing within U.S. waters of the
Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. This
alternative would be consistent with the relevant conservation
recommendations from both of the 2020 BiOps. On average, from 2017
through 2021, scalloped hammerhead sharks contributed $10,753 of
revenue in the Atlantic and Gulf of Mexico shark fisheries combined.
This equates to less than one percent of the total revenue from all
shark fisheries. There could be some minor costs associated with
discarding or avoiding scalloped hammerhead sharks. Additionally, this
alternative could limit fishing opportunities and lead to fewer fishing
trips for charter/headboat operators and therefore, this alternative
would have minor adverse economic impacts on the small entities
participating in the fishery.
Under Alternative B4, the preferred alternative, NMFS will prohibit
the commercial and recreational retention of all LCS hammerhead sharks
for commercial and recreational permit holders fishing within the U.S.
Caribbean region. This alternative is consistent with the relevant
conservation recommendations from both of the 2020 BiOps. Between 2017
and 2021, there were no reported commercial landings of hammerhead
sharks in the U.S. Caribbean region and therefore it is unlikely
revenue would be lost from prohibiting these species. There could be
some minor costs associated with discarding or avoiding hammerhead
sharks within that region. Also, this alternative could limit fishing
opportunities and lead to fewer fishing trips for charter/headboat
operators targeting hammerhead sharks. Thus, this alternative would
have minor adverse economic impacts on the small entities participating
in the Caribbean fisheries. However, NMFS prefers Alternative B4 at
this time, because it will implement the relevant conservation
recommendations from the 2020 BiOps, while not limiting fishing
opportunities for hammerhead sharks in the Gulf of Mexico and Atlantic
Ocean.
Under Alternative B5, NMFS would prohibit the commercial and
recreational retention of all LCS hammerhead sharks for commercial and
recreational permit holders fishing within U.S. waters of the Atlantic
Ocean, including the Gulf of Mexico and Caribbean Sea. This alternative
would be consistent with the relevant conservation recommendations from
both the 2020 BiOps. On average, from 2017 through 2021, LCS hammerhead
sharks contributed $42,794 of revenue in the Atlantic and Gulf of
Mexico shark fisheries combined. This equates to less than 2 percent of
the total revenue from all shark fisheries. There could be some minor
costs associated with discarding or avoiding hammerhead sharks.
Additionally, this alternative could limit fishing opportunities and
lead to fewer fishing trips for charter/headboat operators and
therefore, this alternative would have minor adverse economic impacts
on the small entities participating in the fishery.
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 <a href="https://www.fisheries.noaa.gov/action/retention-prohibition-oceanic-whitetip-sharks-us-atlantic-waters-and-hammerhead-sharks-us">https://www.fisheries.noaa.gov/action/retention-prohibition-oceanic-whitetip-sharks-us-atlantic-waters-and-hammerhead-sharks-us</a> or by contacting Ann
Williamson at <a href="/cdn-cgi/l/email-protection#7617181858011f1a1a1f171b051918361819171758111900">[email&#160;protected]</a> or 301-427-8503.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.

List of Subjects in 50 CFR Part 635

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

Dated: December 28, 2023.
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. 635.22, revise paragraphs (a)(2) and (c)(2), and add
paragraph (c)(9) to read as follows:

Sec. 635.22 Recreational retention limits.

* * * * *
(a) * * *
(2) Vessels issued an Atlantic Tunas General category permit under
Sec. 635.4(d) that are participating in an HMS registered tournament,
vessels issued an HMS Angling category permit under Sec. 635.4(c), or
vessels issued an HMS Charter/Headboat permit under Sec. 635.4(b) may
not retain, possess, or land scalloped, smooth, or great hammerhead
sharks if swordfish, tuna, or billfish are retained or possessed on
board, or offloaded from, the vessel. Such vessels also may not retain,
possess or land swordfish, tuna, or billfish if scalloped, smooth, or
great hammerhead sharks are retained or possessed on board, or
offloaded from, the vessel.
* * * * *
(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, porbeagle, Atlantic
sharpnose, finetooth, Atlantic blacknose, Gulf of Mexico blacknose, and
bonnethead.
* * * * *

[[Page 284]]

(9) No person who has been issued or should have been issued a
permit under Sec. 635.4 of this part may retain, possess, or land
scalloped, smooth, or great hammerhead sharks in or from the Caribbean,
as defined at Sec. 622.2 of this chapter.
* * * * *

0
3. In Sec. In 635.24, revise paragraphs (a)(4)(iv) and (a)(9), and add
paragraph (a)(11) to read as follows:

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

* * * * *
(a) * * *
(4) * * *
(iv) A person who owns, operates, or is aboard a vessel that has
been issued an HMS Commercial Caribbean Small Boat permit may retain,
possess, land, or sell any blacktip, bull, lemon, nurse, spinner,
tiger, Atlantic sharpnose, bonnethead, finetooth, and smoothhound
shark, subject to the HMS Commercial Caribbean Small Boat permit shark
retention limit. A person who owns, operates, or is aboard a vessel
that has been issued an HMS Commercial Caribbean Small Boat permit may
not retain, possess, land, or sell any hammerhead, blacknose, silky,
sandbar, blue, thresher, shortfin mako, or prohibited shark, including
parts or pieces of these sharks. The shark retention limit for a person
who owns, operates, or is aboard a vessel issued an HMS Commercial
Caribbean Small Boat permit will range from zero to three sharks per
vessel per trip. At the start of each fishing year, the default shark
trip limit will apply. During the fishing year, NMFS may adjust the
default shark trip limit per the inseason trip limit adjustment
criteria listed in paragraph (a)(8) of this section. The default shark
retention limit for the HMS Commercial Caribbean Small Boat permit is
three sharks per vessel per trip.
* * * * *
(9) Notwithstanding other provisions in this subsection,
possession, retention, transshipment, landing, sale, or storage of
silky sharks, and scalloped, smooth, and great hammerhead sharks is
prohibited on vessels issued a permit under this part that have pelagic
longline gear on board or on vessels issued both an HMS Charter/
Headboat permit and a commercial shark permit when tuna, swordfish or
billfish are on board the vessel, offloaded from the vessel, or being
offloaded from the vessel.
* * * * *
(11) No person who has been issued or should have been issued a
permit under Sec. 635.4 of this part may retain, possess, or land
scalloped, smooth, or great hammerhead sharks in or from the Caribbean,
as defined at Sec. 622.2 of this chapter.
* * * * *

0
4. In Table 1 of Appendix A to Part 635, remove the term ``Oceanic
whitetip, Carcharhinus longimanus'' under heading C and add the term
``Oceanic whitetip, Carcharhinus longimanus'' under heading D in
alphabetical order.
The addition reads as follows:

Appendix A to Part 635--Species Tables

Table 1 of Appendix A to Part 635--Oceanic Sharks
------------------------------------------------------------------------

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

* * * * *
D. Prohibited Sharks

* * * * *
Oceanic whitetip, Carcharhinus longimanus

* * * * *
------------------------------------------------------------------------

* * * * *

Appendix A to Part 635 [Amended]

0
5. In Table 2 of Appendix A to Part 635, remove the entry for ``Oceanic
whitetip shark, Carcharhinus longimanus.''

[FR Doc. 2023-28900 Filed 1-2-24; 8:45 am]
BILLING CODE 3510-22-P

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