Atlantic Highly Migratory Species; Prohibiting Retention of Oceanic Whitetip Sharks in U.S. Atlantic Waters and Hammerhead Sharks in the U.S. Caribbean Sea, 278-284 [2023-28900]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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 [www.gpo.gov]
[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 https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species, on https://www.regulations.gov 
(enter ``NOAA-NMFS-2023-0025'' in the Search box), or by contacting Ann 
Williamson at [email protected] or 301-427-8503.

FOR FURTHER INFORMATION CONTACT: Ann Williamson, 
[email protected], Becky Curtis, [email protected], or Karyl 
Brewster-Geisz, [email protected], 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

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

Response to Comments

    Written comments can be found at www.regulations.gov; 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.

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    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: https://www.fisheries.noaa.gov/international/seafood-import-monitoring-program.
    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

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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

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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 https://www.fisheries.noaa.gov/action/retention-prohibition-oceanic-whitetip-sharks-us-atlantic-waters-and-hammerhead-sharks-us or by contacting Ann 
Williamson at [email protected] 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