278 Federal Register / Vol. 89, No. 2 / Wednesday, January 3, 2024 / Rules and Regulations 

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. 

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/atlantichighly-migratory-species, on https://

www.regulations.gov (enter ‘‘NOAA– 

NMFS–2023–0025’’ in the Search box), 

or by contacting Ann Williamson at 

ann.williamson@noaa.gov or 301–427– 

8503. 

FOR FURTHER INFORMATION CONTACT: Ann 

Williamson, ann.williamson@noaa.gov, 

Becky Curtis, becky.curtis@noaa.gov, or 

Karyl Brewster-Geisz, karyl.brewstergeisz@noaa.gov, 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 ESAapplicable criteria for determining 

whether a species is threatened or 

endangered. NMFS determines whether 

stocks are overfished or overfishing is 

occurring pursuant to the MagnusonStevens 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 catchand-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 postrelease 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 recordkeeping 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 § 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 tunalike 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 


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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-oceanicwhitetip-sharks-us-atlantic-waters-andhammerhead-sharks-us or by contacting 

Ann Williamson at ann.williamson@

noaa.gov 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 635ØATLANTIC HIGHLY 

MIGRATORY SPECIES 

■ 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. 

■ 2. In § 635.22, revise paragraphs (a)(2) 

and (c)(2), and add paragraph (c)(9) to 

read as follows: 

§ 635.22 Recreational retention limits. 

* * * * * 

(a) * * * 

(2) Vessels issued an Atlantic Tunas 

General category permit under 

§ 635.4(d) that are participating in an 

HMS registered tournament, vessels 

issued an HMS Angling category permit 

under § 635.4(c), or vessels issued an 

HMS Charter/Headboat permit under 

§ 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 

§ 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. 

* * * * * 


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(9) No person who has been issued or 

should have been issued a permit under 

§ 635.4 of this part may retain, possess, 

or land scalloped, smooth, or great 

hammerhead sharks in or from the 

Caribbean, as defined at § 622.2 of this 

chapter. 

* * * * * 

■ 3. In § In 635.24, revise paragraphs 

(a)(4)(iv) and (a)(9), and add paragraph 

(a)(11) to read as follows: 

§ 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 § 635.4 of this part may retain, 

possess, or land scalloped, smooth, or 

great hammerhead sharks in or from the 

Caribbean, as defined at § 622.2 of this 

chapter. 

* * * * * 

■ 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] 

■ 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 221223–0282; RTID 0648– 

XD611] 

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

Quota Transfer From MA to RI 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; quota transfer. 

SUMMARY: NMFS announces that the 

Commonwealth of Massachusetts is 

transferring a portion of its 2023 

commercial summer flounder quota to 

the State of Rhode Island. This 

adjustment to the 2023 fishing year 

quota is necessary to comply with the 

Summer Flounder, Scup, and Black Sea 

Bass Fishery Management Plan (FMP) 

quota transfer provisions. This 

announcement informs the public of the 

revised 2023 commercial quotas for 

Massachusetts and Rhode Island. 

DATES: Effective December 28, 2023, 

through December 31, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Laura Deighan, Fishery Management 

Specialist, (978) 281–9184. 

SUPPLEMENTARY INFORMATION: 

Regulations governing the summer 

flounder fishery are found in 50 CFR 

648.100 through 648.111. These 

regulations require annual specification 

of a commercial quota that is 

apportioned among the coastal states 

from Maine through North Carolina. The 

process to set the annual commercial 

quota and the percent allocated to each 

state is described in § 648.102 and final 

2023 allocations were published on 

January 3, 2023 (88 FR 11). 

The final rule implementing 

Amendment 5 to the Summer Flounder 

Fishery FMP, as published in the 

Federal Register on December 17, 1993 

(58 FR 65936), provided a mechanism 

for transferring summer flounder 

commercial quota from one state to 

another. Two or more states, under 

mutual agreement and with the 

concurrence of the NMFS Greater 

Atlantic Regional Administrator, can 

transfer or combine summer flounder 

commercial quota under § 648.102(c)(2). 

The Regional Administrator is required 

to consider three criteria in the 

evaluation of requests for quota transfers 

or combinations: (1) the transfer or 

combinations would not preclude the 

overall annual quota from being fully 

harvested; (2) the transfer addresses an 

unforeseen variation or contingency in 

the fishery; and (3) the transfer is 

consistent with the objectives of the 

FMP and the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). The Regional 

Administrator has determined these 

three criteria have been met for the 

transfer approved in this notification. 

Massachusetts is transferring 25,000 

pounds (lb; 11,340 kilograms (kg)) to 

Rhode Island through a mutual 

agreement between the states. This 

transfer was requested to ensure Rhode 

Island would not exceed its 2023 quota. 

The revised summer flounder quotas for 

2023 are Massachusetts, 1,334,363 lb 

(605,257 kg), and Rhode Island, 

2,255,478 lb (1,023,068 kg). 


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