[Federal Register Volume 79, Number 128 (Thursday, July 3, 2014)]
[Rules and Regulations]
[Pages 38213-38242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15710]



[[Page 38213]]

Vol. 79

Thursday,

No. 128

July 3, 2014

Part III





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 224





 Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Scalloped 
Hammerhead Sharks; Final Rule

Federal Register / Vol. 79 , No. 128 / Thursday, July 3, 2014 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 111025652-4523-03]
RIN 0648-XA798


Endangered and Threatened Wildlife and Plants; Threatened and 
Endangered Status for Distinct Population Segments of Scalloped 
Hammerhead Sharks

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

ACTION: Final rule.

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SUMMARY: In response to a petition submitted by WildEarth Guardians and 
Friends of Animals, we, NMFS, are issuing a final determination to list 
the Central and Southwest (SW) Atlantic Distinct Population Segment 
(DPS) and the Indo-West Pacific DPS of scalloped hammerhead shark 
(Sphyrna lewini) as threatened species under the Endangered Species Act 
(ESA). We are also issuing a final determination to list the Eastern 
Atlantic DPS and Eastern Pacific DPS of scalloped hammerhead sharks as 
endangered species under the ESA. We intend to consider critical 
habitat for the Central & SW Atlantic, Indo-West Pacific, and Eastern 
Pacific DPSs in a separate rulemaking.

DATES: This final rule is effective on September 2, 2014.

ADDRESSES: Information concerning this final rule may be obtained by 
contacting NMFS, Office of Protected Resources, 1315 East-West Highway, 
Silver Spring, MD 20910. The final rule, list of references and other 
materials relating to this determination can be found on our Web site 
at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm.

FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of 
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

    On August 14, 2011, we received a petition from WildEarth Guardians 
and Friends of Animals to list the scalloped hammerhead shark (Sphyrna 
lewini) as threatened or endangered under the ESA throughout its entire 
range, or, as an alternative, to delineate the species into five DPSs 
(Eastern Central and Southeast Pacific, Eastern Central Atlantic, 
Northwest and Western Central Atlantic, Southwest Atlantic, and Western 
Indian Ocean) and list any or all of these DPSs as threatened or 
endangered. The petitioners also requested that critical habitat be 
designated for the scalloped hammerhead under the ESA. On November 28, 
2011, we published a positive 90-day finding (76 FR 72891) announcing 
that the petition presented substantial scientific or commercial 
information indicating the petitioned action of listing the species may 
be warranted and explained the basis for that finding. On April 5, 
2013, after completing a comprehensive status review of the species 
(Miller et al. 2013; hereafter referred to as the ``Status Review 
Report'' available at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm), we identified six DPSs of scalloped 
hammerhead sharks: Northwest Atlantic and Gulf of Mexico (NW Atlantic & 
GOM) DPS, Central and Southwest (SW) Atlantic DPS, Eastern Atlantic 
DPS, Indo-West Pacific DPS, Central Pacific DPS, and Eastern Pacific 
DPS. On April 5, 2013, we published a 12-month determination in the 
Federal Register announcing that listing was not warranted at this time 
for the NW Atlantic & GOM DPS and the Central Pacific DPS (see 78 FR 
20718, conclusion that listing is not warranted in Proposed 
Determinations). As part of the same action, we proposed a rule to list 
the Central & SW Atlantic DPS and Indo-West Pacific DPS as threatened 
species under the ESA, and the Eastern Atlantic DPS and Eastern Pacific 
DPS as endangered species under the ESA (see 78 FR 20718, proposal to 
list DPSs in Proposed Determinations). We solicited comments from all 
interested parties including the public, other governmental agencies, 
the scientific community, industry, and environmental groups on the 
Proposed Rule. Specifically, we requested information regarding: (1) 
The proposed scalloped hammerhead DPS delineations; (2) the population 
structure of scalloped hammerhead sharks; (3) habitat within the range 
of the DPSs proposed for listing that was present in the past, but may 
have been lost over time; (4) biological or other relevant data 
concerning any threats to the scalloped hammerhead shark DPSs we 
proposed for listing; (5) the range, distribution, and abundance of 
these scalloped hammerhead shark DPSs; (6) current or planned 
activities within the range of the scalloped hammerhead shark DPSs we 
proposed for listing and their possible impact on these DPSs; (7) 
recent observations or sampling of the scalloped hammerhead shark DPSs 
we proposed for listing; (8) efforts being made to protect the 
scalloped hammerhead shark DPSs we proposed to list; and (9) 
information regarding the Indo-West Pacific DPS, mainly the population 
structure, range, distribution, and recent observations or sampling of 
scalloped hammerhead sharks around the Western Pacific Islands. We 
received 670 comments in response to the Proposed Rule during the 
public comment period. Summaries of these comments are included below.

Listing Species Under the Endangered Species Act

    We are responsible for determining whether scalloped hammerhead 
sharks are threatened or endangered under the ESA (16 U.S.C. 1531 et 
seq.) To make this determination, we first consider whether a group of 
organisms constitutes a ``species'' under Section 3 of the ESA, then 
whether the status of the species qualifies it for listing as either 
threatened or endangered under Section 4 of the Act. Section 3 of the 
ESA defines species to include ``any subspecies of fish or wildlife or 
plants, and any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature.'' On 
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; 
together, the Services) adopted a policy describing what constitutes a 
DPS of a taxonomic species (61 FR 4722). The joint DPS policy 
identified two elements that must be considered when identifying a DPS: 
(1) The discreteness of the population segment in relation to the 
remainder of the species (or subspecies) to which it belongs; and (2) 
the significance of the population segment to the remainder of the 
species (or subspecies) to which it belongs. As stated in the joint DPS 
policy, Congress expressed its expectation that the Services would 
exercise authority with regard to DPSs sparingly and only when the 
biological evidence indicates such action is warranted. We evaluated 
whether scalloped hammerhead population segments met the DPS Policy 
criteria and described the delineations of six scalloped hammerhead 
DPSs in detail in the 12-month ``not warranted'' determination and 
Proposed Rule. Comments regarding the delineation are addressed in the 
section ``Summary of Peer Review and Public Comments Received'' below.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an

[[Page 38215]]

endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' Thus, in the context of the ESA, 
the Services interpret an ``endangered species'' to be one that is 
presently at risk of extinction. A ``threatened species,'' on the other 
hand, is not currently at risk of extinction, but is likely to become 
so in the foreseeable future. In other words, a key statutory 
difference between a threatened and endangered species is the timing of 
when a species may be in danger of extinction, either now (endangered) 
or in the foreseeable future (threatened). The statute also requires us 
to determine whether any species is endangered or threatened as a 
result of any one or a combination of the following five factors: the 
present or threatened destruction, modification, or curtailment of its 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; the 
inadequacy of existing regulatory mechanisms; or other natural or 
manmade factors affecting its continued existence (ESA, section 
4(a)(1)(A)-(E)). Section 4(b)(1)(A) of the ESA requires us to make 
listing determinations based solely on the best scientific and 
commercial data available after conducting a review of the status of 
the species and after taking into account efforts being made by any 
State or foreign nation or political subdivision thereof to protect the 
species. In evaluating the efficacy of existing protective efforts, we 
rely on the Services' joint Policy on Evaluation of Conservation 
Efforts When Making Listing Decisions (``PECE''; 68 FR 15100; March 28, 
2003). The PECE provides direction for consideration of conservation 
efforts that have not been implemented, or have been implemented but 
not yet demonstrated effectiveness.

Summary of Peer Review and Public Comments Received

    On July 1, 1994, the NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. Pursuant to our 1994 policy on peer review, we 
solicited technical review of the 12-month ``not warranted'' 
determination and the Proposed Rule from six qualified specialists. 
Comments were received from two of the independent experts and those 
substantive comments are addressed below.
    In addition, on April 5, 2013, we solicited public comments on the 
Proposed Rule for a total of 90 days (78 FR 20718). We received 
comments on the 12-month ``not warranted'' determination and the 
Proposed Rule from 3,618 commenters; 2,948 commenters were in the form 
of signatures on a form letter. We also received over 190 comments that 
were variations of another form letter. Summaries of only the 
substantive public comments received, and our responses, are provided 
below, organized by topic.

Peer Reviewer Comments

    Comment 1: A peer reviewer noted that, in general, the 5-factor 
threats assessment was accurately done, but expressed concern over the 
proposed ``threatened'' listing for the population found off southern 
Brazil, believing that this population may be ``endangered.'' The peer 
reviewer referenced studies that reported increases in catches and 
decreases in hammerhead populations off Brazil that were cited and 
considered in the Proposed Rule and Status Review Report (including 
Amorim et al., 1998; Kotas et al., 2008; and CITES, 2010). The peer 
reviewer also noted that embryonic development of S. lewini occurs in 
the oceanic area off southern Brazil. For 296 embryos collected during 
1988-93, average lengths were 24.3 cm in May, 29.7 cm in June, 32.9 cm 
in July, 42.0 cm in September, 46.5 cm in October, and 47.4 cm in 
November. The peer reviewer noted that birth occurs probably inshore 
from October to December.
    Response: We accept the additional information about embryonic 
development of S. lewini specifically in Brazilian waters and have 
updated the Status Review Report accordingly (see Miller et al. 2014). 
It is important to note that the ``threatened'' listing status was 
proposed for the Central & SW Atlantic DPS, which includes scalloped 
hammerhead populations found in the Caribbean as well as off the coast 
of Brazil. The Extinction Risk Analysis (ERA) team, a team of 
biologists and shark experts that were tasked with conducting the 
extinction risk analysis for the scalloped hammerhead shark DPSs, 
considered the references that were mentioned by the peer reviewer, in 
addition to a number of other studies within this DPS' range, when it 
evaluated the extinction risk of the Central and SW Atlantic DPS (see 
Status Review Report). With no new information to indicate an increase 
in extinction risk for this DPS, we do not find reason to reevaluate 
the analysis in the Status Review Report or reconsider the listing 
status of the Central & SW Atlantic DPS.
    Comment 2: A peer reviewer commented that gene flow likely occurs 
between the Atlantic west and east populations. On the African coast, 
only a few samples were used (N = 6) to differentiate populations 
(Duncan et al., 2006). This does not prove that there is a strong 
population differentiation between the east and west coast of the 
Atlantic Ocean. Furthermore, Daly-Engel et al. (2012) found no 
difference between the samples from the African coast and the samples 
from South Carolina; there was differentiation only between the samples 
from the Gulf of Mexico and African coast. In addition, only one study 
(Duncan et al., 2006) had samples from the southwestern Atlantic, but 
the number of these samples (N=3) used for comparison to samples from 
the west African coast was likely insufficient. Therefore, the genetic 
differentiation between the African coast compared to the American 
coast may require further study. Additionally, there is probably no 
barrier to overcome for the scalloped hammerhead sharks in the Atlantic 
Ocean and so there must be genetic exchange across the ocean. The 
scalloped hammerhead is considered a circumtropical species and is 
capable of traveling long distances (1,941 km, Bessudo et al., 2011). 
Scalloped hammerhead sharks found in larger areas, such as the Pacific 
and Indian Oceans, have been considered as one population. Also, 
evidence suggests S. lewini travels from the Atlantic to the Indo-
Pacific, via southern Africa (Duncan et al., 2006).
    Response: Although scalloped hammerhead sharks are highly mobile, 
this species rarely conducts trans-oceanic migrations (Kohler and 
Turner, 2001; Duncan and Holland, 2006; Duncan et al., 2006; Chapman et 
al., 2009; Diemer et al., 2011). Genetics analyses for scalloped 
hammerhead sharks using mitochondrial DNA (mtDNA), which is maternally 
inherited, and microsatellite loci data, which reflects the genetics of 
both parents, have consistently shown that scalloped hammerhead 
subpopulations are genetically diverse and that individual 
subpopulations can be differentiated, especially those populations 
separated by ocean basins (Duncan et al., 2006; Chapman et al., 2009; 
Ovenden et al., 2011; Daly-Engel et al., 2012). In the Atlantic, both 
mitochondrial and microsatellite data indicate genetic discontinuity 
within this ocean basin, with distinct populations of scalloped 
hammerhead sharks defined by their respective coasts. Although only a 
few samples (N=6) were taken from the coast

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of west Africa in the Dudley et al. (2006) study, in the Daly-Engel et 
al. (2012) study, the authors analyzed 28 samples from the coast of 
west Africa and corroborated the finding of genetic structure between 
the western and eastern Atlantic S. lewini populations. Using 
biparentally-inherited DNA, Daly-Engel et al. (2012) found scalloped 
hammerhead samples from West Africa were weakly differentiated from 
South Carolina samples (which is not the same as ``no difference''; in 
fact, 0.01 <= P <= 0.05, indicating statistical significance) and 
significantly differentiated from Gulf of Mexico samples (P <= 0.001). 
Additionally, the Daly-Engel et al. (2012) study found the West African 
scalloped hammerhead samples to be significantly differentiated from 
the South African samples (P <= 0.01). Since differences in genetic 
composition can sometimes be explained by the behavior of a species, we 
also reviewed tagging data to learn more about the movements of the 
scalloped hammerhead populations. We found that the available data 
corroborate the genetic findings that populations of scalloped 
hammerhead sharks rarely travel long distances over oceanic barriers, 
such as deep water (see discussion in Status Review Report and the 
Proposed Rule). While we acknowledge that further genetic study is 
likely warranted, we must rely on the best available information at the 
time of listing in order to make our determinations. As such, with no 
new data provided or available to suggest otherwise, we rely on these 
genetic and behavioral studies which support the finding that there is 
isolation between the eastern and western Atlantic scalloped hammerhead 
populations, and conclude that these populations should be treated as 
separate and discrete.
    Comment 3: A peer reviewer commented that aside from the NW 
Atlantic & GOM DPS, there was no quantitative data supporting the 
listing status determinations. Neither was there data that represented 
the status of the species throughout an entire DPS. Thus, for some of 
the more extensive and complex DPSs (e.g., Indo-West Pacific) there are 
likely to be multiple patterns of decline occurring. For example, in 
Australia, where there is adequate management of sharks, there are 
likely to be smaller declines in these populations than in the more 
heavily fished parts of the DPS. However, the information on scalloped 
hammerhead sharks in Australian waters was missing from the ``threat of 
overutilization'' section for the Indo-West Pacific DPS. There has been 
a significant amount of work on scalloped hammerhead sharks in 
Australia, and the lack of this information in the decision means that 
this variability has been under-estimated. This is particularly 
important because Australia has some of the best shark management 
practices in the world, and so scalloped hammerhead sharks likely have 
a much higher probability of not going extinct in this part of the DPS.
    Response: While we acknowledge that, with the exception of the NW 
Atlantic & GOM DPS, there is a limited amount of quantitative data 
available on the other DPSs, we are required to use the best scientific 
and commercial data available to determine whether the DPSs should be 
listed under the ESA because of any of the following five factors: (1) 
The present or threatened destruction, modification, or curtailment of 
its habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
man-made factors affecting its continued existence. The best available 
information, including both qualitative and quantitative data, 
indicates that the Indo-West Pacific and Central & SW Atlantic DPSs are 
likely to become in danger of extinction in the foreseeable future and 
that the Eastern Atlantic and Eastern Pacific DPSs are currently in 
danger of extinction based on threats that are ongoing and not being 
adequately addressed. While it may be true that there are differing 
levels of population decline and adequacy of management regulations 
throughout the range of a specific DPS, we must evaluate threats to the 
entire DPS when making a listing determination.
    We disagree with the peer reviewer that the information on 
scalloped hammerhead sharks in Australian waters was not considered in 
our decision. The proposed determination was largely based on the 
Status Review Report, which included substantial information on the 
status of scalloped hammerhead sharks found in Australian waters. In 
fact, much of the quantitative data on abundance trends that were 
considered in the demographic risks section for the Indo-West Pacific 
DPS came from studies conducted in Australian waters (which were also 
referenced by the peer reviewer, including Harry et al., 2011a; Harry 
et al., 2011b; and Reid and Krogh, 1992). As the Proposed Rule notes 
(see 78 FR 20718, discussion of Evaluation of Demographic Risks, Indo-
West Pacific DPS), estimates of the decline in Australian hammerhead 
abundance range from 58-85 percent (Heupel and McAuley, 2007; CITES, 
2010). Catch per unit effort (CPUE) data from the northern Australian 
shark fishery indicate declines of 58-76 percent in hammerhead 
abundance in Australia's northwest marine region from 1996-2005 (Heupel 
and McAuley, 2007). Data from protective shark meshing programs off 
beaches in New South Wales (NSW) and Queensland also suggest 
significant declines in hammerhead populations off the east coast of 
Australia. From 1973 to 2008, the number of hammerheads caught per year 
in NSW beach nets decreased by more than 90 percent, from over 300 
individuals to fewer than 30 (Reid and Krogh, 1992; Williamson, 2011). 
Similarly, data from the Queensland shark control program indicate 
declines of around 82 percent in hammerhead shark abundance between the 
years of 1985 and 2012, with S. lewini abundance fluctuating over the 
years but showing a steady decline since 2004. Between 2004 and 2012, 
the number of S. lewini shark caught in the Queensland shark control 
program nets has decreased by 80 percent (QLD DEEDI, 2013). These shark 
control programs were assessed to have at least a medium causative 
impact on the localized depletions of scalloped hammerhead sharks (Reid 
and Krogh, 1992).
    We also agree with the reviewer that Australia has adequate 
fisheries management regulations in place that would minimize the risk 
of overutilization of scalloped hammerhead sharks found in Australian 
waters. As the Proposed Rule and Status Review Report documents, 
Australia has a number of measures to sustainably manage shark 
populations, prevent the waste of shark parts, and discourage finning 
(see 78 FR 20718, discussion of Inadequacy of Existing Regulatory 
Mechanisms, Indo-West Pacific DPS). For example, sharks must be landed 
with fins naturally attached in Commonwealth, NSW and Victorian waters, 
and must be landed with corresponding fins in a set fin to carcass 
ratio in Tasmanian, Western Australian, Northern Territory and 
Queensland waters. In May 2012, the state of New South Wales (NSW) 
listed S. lewini as an endangered species, thus protecting the shark 
form recreational and commercial fisheries in NSW state waters. In 
Australia's northern shark fisheries (Joint Authority Northern Shark 
Fishery (JANSF) and Western Australia North Coast Shark Fishery 
(WANCSF)), hammerhead catches saw a significant decline from their peak 
in 2004/05 following the implementation of stricter management 
regulations in

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2005 (including area closures and longline and gillnet restrictions in 
WANCSF). In 2008, the JANSF's export approval was revoked over concerns 
about the ecological sustainability of the fishery. In 2009, the WANCSF 
export approval expired. As such, no product from either fishery can 
currently be legally exported. As the northern shark fisheries rely 
upon shark fin exports for the majority of their income, these export 
losses have effectively shut down the fisheries, and, consequently, 
from 2009-2011 there was no reported activity in the northern shark 
fisheries (McAuley and Rowland, 2012).
    The adequacy of these numerous fisheries management and shark 
conservation regulations in Australia is reflected by the fact that 
scalloped hammerhead sharks are still fairly abundant off the east 
coast of Australia. For example, in a 3-year study of commercial 
gillnet catch of the Queensland East Coast Inshore Finfish Fishery, S. 
lewini was the 4th most abundant elasmobranch (making up 8.8 percent of 
the total catch) (Harry et al., 2011b). Similarly, data from a 
Queensland banana prawn trawl fishery revealed that S. lewini was the 
most frequently caught shark species (based on 184 net trawls) but only 
represented 0.055 percent of the total bycatch (Shark Advisory Group, 
2004). Given the available information, we did not find overutilization 
by Australian fisheries, or the inadequacy of Australian fisheries 
management regulations, as significant threats to the Indo-West Pacific 
DPS, which is why they were not discussed at length in the threats 
sections of the Proposed Rule.
    However, in addition to waters off Australia's coast, the Indo-West 
Pacific DPS range extends throughout the entire Indian Ocean and 
western Pacific. As described in the DPS analysis section of the 
Proposed Rule (see 78 FR 20718, discussion of the Identification of 
Distinct Populations Segments), genetic and tagging data suggest that 
the scalloped hammerhead sharks in the Indo-West Pacific frequently mix 
with one another (Daly-Engel et al., 2012). For example, one study 
found there to be no genetic subdivision of S. lewini between Indonesia 
and the eastern or northern coasts of Australia, indicating this 
species moves widely between the connecting habitats of Australia and 
Indonesia (Ovenden et al., 2009; Ovenden et al., 2011). In other words, 
the sharks found in Australian waters are not discrete or separate from 
other sharks found in the DPS range and thus are affected by threats 
outside of the Australian exclusive economic zone (EEZ). As such, 
although management regulations may be adequate within Australian 
waters, in other parts of its range the Indo-West Pacific DPS still 
faces threats of overutilization by fisheries, is subject to high 
levels of illegal fishing (although this occurs in Australia's EEZ as 
well), and lacks adequate regulatory protection. Using the best 
available scientific and commercial information, as found in the Status 
Review Report and discussed in the Proposed Rule, we determined that 
these threats warrant listing the Indo-West Pacific DPS as threatened, 
as it is likely to become in danger of extinction in the foreseeable 
future throughout its entire range.
    Comment 4: A peer reviewer commented that the designated DPSs were 
largely in line with what would be expected but was a little surprised 
from a biological stand-point by the separation between the NW Atlantic 
& GOM DPS and the Central & SW Atlantic DPS. Given the agency's DPS 
policy that takes account of not only the biological evidence, but also 
the management arrangements, this conforms to the DPS policy. However, 
the peer reviewer expressed concern regarding the inclusion of the 
entire Gulf of Mexico range within this DPS. Specifically, the peer 
reviewer noted that there is likely to be greater pressure on the NW 
Atlantic & GOM DPS as the sharks swim across U.S. jurisdictional 
boundaries within the Gulf of Mexico (but also noted the boundaries by 
Cuba and Bahamas), and may be at an elevated risk of capture in these 
less regulated fisheries, a risk that was not fully accounted for in 
the listing decision.
    Response: As the peer reviewer notes, the DPS designations conform 
to the DPS Policy. As discussed in the Proposed Rule, we used evidence 
of genetic diversity, geographic isolation, and differences in 
international regulatory mechanisms for identifying the NW Atlantic & 
GOM DPS as discrete from the other scalloped hammerhead shark DPSs (see 
78 FR 20718, discussion of the Identification of Distinct Populations 
Segments). Significance is evaluated in terms of the importance of the 
population segment to the overall welfare of the species. We used 
evidence that loss of the NW Atlantic & GOM population segment would 
result in a significant gap in the range of the taxon, as S. lewini 
from other DPSs are unlikely to repopulate the NW Atlantic & GOM DPS. 
Available data show that gene flow is low between this DPS and 
neighboring population segments (Duncan et al., 2006; Chapman et al., 
2009; Daly-Engel et al., 2012) and tagging studies show limited 
distance movements by individuals (Duncan and Holland, 2006; Bessudo et 
al., 2011; Diemer et al., 2011), including along the western Atlantic 
coast (Kohler and Turner, 2001).
    Although the peer reviewer did not present any new information on 
the risk of capture in fisheries outside of U.S. jurisdiction, we 
acknowledge in the Proposed Rule that the ERA team had concerns about 
the level of illegal fishing of the NW Atlantic & GOM DPS by Mexican 
fishing vessels (see 78 FR 20718, discussion of Inadequacy of Existing 
Regulatory Mechanisms, NW Atlantic & GOM DPS). Based on data from 2000-
2005, Brewster-Geisz and Eytcheson (2005) estimated that Mexican 
fishers are illegally catching anywhere from 3 to 56 percent of the 
total U.S. Atlantic commercial shark quota, and between 6 and 108 
percent of the Gulf of Mexico regional commercial quota. However, the 
large range of these estimates indicates a high degree of uncertainty, 
indicating that the extent of illegal fishing on the scalloped 
hammerhead sharks in the Gulf of Mexico is largely unknown. Updated 
data that include years 2006 through 2009 also suggest that the risk of 
this threat may be diminishing. In fact, since 2005, there has been a 
46 percent decrease in the number of detected incursions (Brewster-
Geisz et al., 2010). Also, in 2012, Mexico established an annual shark 
fishing prohibition in its jurisdictional Gulf of Mexico waters (from 
May 1 to June 30) (DOF, 2012), which will help protect S. lewini from 
capture during parturition and also deter future illegal fishing by its 
fishers, at least during the prohibitive period. We disagree that the 
increased risk of capture from fisheries operating in Mexican waters 
was not fully accounted for in the listing decision as the above 
information, as well as the analysis of it and other threats by the ERA 
team, was taken into consideration when we made our listing 
determination that the NW Atlantic & GOM DPS is not in danger of 
extinction now or in the foreseeable future.

Public Comments

    Below we summarize and address the substantive public comments that 
were received during the public comment period for the Proposed Rule. 
Many of the commenters presented general information on threats or 
provided data that were already cited, discussed, and considered in the 
Status Review Report or the 12-month ``not warranted'' determination 
and Proposed Rule (78 FR 20718). We briefly summarize these comments 
and respond below with references to our prior documents where

[[Page 38218]]

relevant. Substantive comments and our responses are organized by 
relevant topic.

``Not Warranted'' Final Determination for the NW Atlantic & GOM DPS and 
Central Pacific DPS

    The Federal Register notice solicited public comments on the 
Proposed Rule to list the Eastern Atlantic DPS and Eastern Pacific DPS 
as endangered species and to list the Central & SW Atlantic DPS and the 
Indo-West Pacific DPS as threatened species. However, the vast majority 
of the comments concerned the 12-month ``not warranted'' determination 
for the NW Atlantic & GOM DPS and the Central Pacific DPS. Although not 
presented for public comment, we reviewed the comments on the 12-month 
``not warranted'' determination and provide the following responses:
    A few commenters expressed concern that Draft Amendment 5 to the 
2006 Consolidated Highly Migratory Species (HMS) Fishery Management 
Plan (FMP) is not yet implemented (proposed on November 26, 2012; 77 FR 
70552) or likely to be effective in addressing threats, such as bycatch 
mortality, illegal fishing, recreational catch data quality, and 
species identification problems, to the NW Atlantic & GOM DPS. 
Amendment 5 proposed measures that were designed to reduce fishing 
mortality and effort in order to rebuild various overfished Atlantic 
shark species, including scalloped hammerhead sharks, while ensuring 
that a limited sustainable shark fishery for certain species could be 
maintained. In the 12-month ``not warranted'' determination, we 
addressed these concerns in our assessment of threats to the NW 
Atlantic & GOM DPS (78 FR 20718, discussion of Summary of Factors 
Affecting the Six DPSs of Scalloped Hammerhead Sharks) and evaluated 
the likelihood of implementation and effectiveness of the proposed 
Draft Amendment 5 in our discussion of ``Efforts Being Made to Protect 
Scalloped Hammerhead Sharks'' (78 FR 20718, discussion of U.S. Fishery 
Management: Amendment 5 to the Consolidated HMS FMP) pursuant to the 
joint USFWS and NMFS Policy on Evaluation of Conservation Efforts When 
Making Listing Decisions (``PECE'', 68 FR 15100; March 28, 2003). In 
addition, since publication of the 12-month ``not warranted'' 
determination, these conservation efforts have been implemented. These 
measures were finalized in July 2013 with publication of Amendment 5a 
to the Consolidated HMS FMP (78 FR 40318; July 3, 2013). After 
considering the public comments on Draft Amendment 5, the HMS 
Management Division split Amendment 5 into two rulemakings: Amendment 
5a (which addressed scalloped hammerhead, sandbar, blacknose, and Gulf 
of Mexico blacktip sharks) and Amendment 5b (which addressed dusky 
sharks). The implemented management measures include separating the 
commercial hammerhead shark quotas from the aggregated large coastal 
shark (LCS) management group quotas, linking the Atlantic hammerhead 
shark quota to the Atlantic aggregated LCS quotas, and linking the Gulf 
of Mexico hammerhead shark quota to the Gulf of Mexico aggregated LCS 
quotas. In other words, if either the aggregated LCS or hammerhead 
shark quota is reached, then both the aggregated LCS and hammerhead 
shark management groups will close. These quota linkages were 
implemented as an added conservation benefit for the hammerhead shark 
complex due to the concern of hammerhead shark bycatch and additional 
mortality from fishermen targeting other sharks within the LCS complex. 
The separation of the hammerhead species for quota monitoring purposes 
from other sharks within the LCS management unit will allow us to 
better manage the specific utilization of the hammerhead shark complex, 
which includes scalloped hammerhead sharks, thus further minimizing the 
threat of overutilization and promoting sustainable fishing.
    For the recreational fisheries, Amendment 5a increased the minimum 
size limit for hammerheads from 54 inches fork length (FL) (4.5 feet; 
137 cm) to 78 inches FL (6.5 feet; 198 cm) to ensure that primarily 
mature individuals are retained, which will help with rebuilding 
efforts. Furthermore, since January 1, 2007, the HMS Management 
Division has required all U.S. Atlantic pelagic longline, bottom 
longline, and gillnet vessel owners who hold shark permits and 
operators of those vessels to attend a Protected Species Safe Handling, 
Release, and Identification Workshop; and all Federally permitted shark 
dealers are required to attend Atlantic Shark Identification workshops. 
In addition, to help with increased accuracy in reporting shark catches 
down to the species level, many RFMOs and national and international 
fishery managers have started distributing shark and fin guides to 
fishermen.
    To address the concern regarding illegal fishing, see the 
discussion in the 12-month ``not warranted'' determination (78 FR 
20718, discussion of Inadequacy of Existing Regulatory Mechanisms, NW 
Atlantic & GOM DPS). As that action notes, the extent of illegal 
fishing on the NW Atlantic & GOM DPS remains unknown. There is a high 
degree of uncertainty surrounding the available estimates of illegal 
catch of the NW Atlantic & GOM DPS, and we have not received any new 
data since publication of the 12-month ``not warranted'' determination. 
However, as mentioned in that action, updated data since 2005 show a 
decrease in the number of detected incursions by Mexican fishers into 
U.S. waters (Brewster-Geisz et al., 2010), indicating a possible 
decline in illegal fishing on the NW Atlantic & GOM DPS.
    Bycatch from vessels targeting tuna and swordfish was also 
suggested as a threat to the NW Atlantic & GOM DPS during the public 
comment period. In 2010, the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) adopted Recommendation 10-08 
prohibiting the retention of hammerheads caught in association with 
ICCAT-managed fisheries. In 2011, the NMFS HMS Management Division 
implemented this recommendation, prohibiting the retention, 
transshipping, landing, storing, or selling of hammerhead sharks in the 
family Sphyrnidae (except for Sphyrna tiburo) caught in association 
with ICCAT fisheries (76 FR 53652; August 29, 2011). This rule affects 
the commercial HMS pelagic longline (PLL) fishery and recreational 
fisheries for tunas, swordfish, and billfish in the Atlantic Ocean, 
including the Caribbean Sea and Gulf of Mexico (76 FR 53652; August 29, 
2011). In addition, based on new data that we received and reviewed 
since publication of the 12-month ``not warranted'' determination, it 
appears that scalloped hammerhead sharks have a low risk of 
vulnerability to overexploitation by these PLL fisheries (Cort[eacute]s 
et al., 2012).
    Using an Ecological Risk Assessment, Cort[eacute]s et al. (2012) 
assessed 20 shark stocks caught in association with ICCAT fisheries. 
Ecological Risk Assessments are popular modeling tools that take into 
account a stock's biological productivity (evaluated based on life 
history characteristics) and susceptibility to a fishery (evaluated 
based on availability of the species within the fishery's area or 
operation, encounterability, post capture mortality and selectivity of 
the gear) in order to determine its overall vulnerability to 
overexploitation (Cort[eacute]s et al., 2012; Kiska, 2012). For the 
assessment, scalloped hammerhead sharks were separated into two 
Atlantic stocks, a northern S. lewini stock and a southern S. lewini 
stock. Out of the 20 shark stocks, the northern S. lewini stock

[[Page 38219]]

ranked 15th in terms of its susceptibility to PLL fisheries in the 
Atlantic Ocean, and the southern stock ranked 19th (indicating low 
susceptibility, which the authors attribute to reduced interactions 
with PLL gear) (Cort[eacute]s et al., 2012). In terms of productivity, 
the southern stock ranked 7th in highest productivity values (r = 
0.121) and the northern stock ranked 9th (r = 0.096). The authors then 
calculated overall vulnerability scores using three methods: the 
Euclidean distance, a multiplicative index, and the arithmetic mean of 
the productivity and susceptibility ranks. Using the Euclidean distance 
method, the northern Atlantic S. lewini stock ranked 16th in terms of 
its overall vulnerability to the PLL fisheries in the Atlantic Ocean, 
and the southern Atlantic S. lewini stock ranked 19th (note: higher 
numerical rankings indicate lower vulnerability). For the 
multiplicative method, their vulnerability rankings were a little lower 
(with a rank of 12 for northern stock and 15 for the southern stock). 
Using the arithmetic mean to calculate vulnerability scores resulted in 
the same scores as the Euclidean distance method. Overall, the authors 
concluded that the northern and southern Atlantic scalloped hammerhead 
sharks, along with the smooth hammerhead (Sphyrna zygaena) and pelagic 
sting ray (Pteroplatytrygon violacea), have the lowest vulnerabilities 
to ICCAT fisheries. In other words, out of the 20 assessed shark 
stocks, these species are the least vulnerable to overfishing by ICCAT 
fisheries.
    One commenter noted that human-made threats, such as sport-fishing 
and commercial catch or bycatch mortality, should have been considered 
under Factor E (``Other natural or manmade factors affecting its 
continued existence'') of Section (4)(a)(1) of the ESA. We did consider 
at-vessel fishing mortality under this factor; however, we assessed the 
other threats of recreational and commercial fishing morality under 
Factor B ``Overutilization for commercial, recreational, scientific, or 
educational purposes.'' Information regarding the threats assessment 
can be found in the Status Review Report and also discussed in the 12-
month ``not warranted'' determination and Proposed Rule (78 FR 20718, 
discussion of Summary of Factors Affecting the Six DPSs of Scalloped 
Hammerhead Sharks).
    Another commenter noted that significant weight for the delineation 
of the NW Atlantic & GOM DPS from the Central & SW Atlantic DPS was 
based on a personal communication (``Kohler personal communication, 
2012'') made to the ERA team that is not available for the public to 
review. In this personal communication, discussed in the 12-month ``not 
warranted'' determination and Proposed Rule (78 FR 20718, discussion of 
Identification of Distinct Population Segments, Discreteness, Atlantic 
Ocean Population Segments), Kohler noted that no tagged scalloped 
hammerhead sharks from the northwest Atlantic have been tracked moving 
south to Brazil or even Central America. We referenced this personal 
communication as evidence of a potential separation of the northwest 
Atlantic and Gulf of Mexico population from the Central and South 
American population based on movement behavior. The information within 
the personal communication is based on results from the NMFS 
Cooperative Shark Tagging Program, which has tagged scalloped 
hammerhead sharks off the east coast of the United States and within 
the Gulf of Mexico. Kohler et al. (1998) presents results from this 
program during the years of 1962 to 1993. Out of the 2,131 tagged 
scalloped hammerhead sharks, 34 were recaptured with no shark 
recaptured south of Cuba (Kohler et al., 1998). Although these findings 
support our delineation; we wanted to check if more recent data were 
available. We contacted the primary author, Dr. Nancy Kohler (who is 
still associated with the NMFS Cooperative Shark Tagging Program), to 
find out if any scalloped hammerhead sharks have been recaptured 
further south since publication of the Kohler et al. (1998) paper. As 
this data from the program is currently unpublished, we had to rely on 
personal communication from the primary author. This discussion should 
have cited to the 1998 publication and we now direct the public to that 
document, Kohler et al. (1998), for more information.
    Finally, many commenters provided additional suggestions for how to 
conserve the species, such as funding more research on at-vessel 
mortality, improving monitoring, developing stock assessments, closing 
fisheries, and adopting precautionary management measures. While we 
appreciate public input on these issues, these suggestions are beyond 
the scope of our 12-month ``not warranted'' determination and the 
Proposed Rule.

Global Listing

    Comment 5: Several commenters requested a global listing of the 
species, rather than splitting the species into DPSs, or requested that 
all DPSs should be listed. For support, the commenters provided general 
statements regarding threats to the species, such as overfishing and 
inadequate regulatory measures. The commenters state that the shark is 
overfished because it is targeted in fisheries, caught as bycatch, its 
fins are traded in the shark fin trade, there is poor species 
identification by fishermen, and there are current enforcement issues, 
particularly on the international scale, which have contributed 
directly to overfishing.
    Response: The threats mentioned above have already been discussed 
at length in the Status Review Report and 12-month ``not warranted'' 
determination and Proposed Rule (see 78 FR 20718, discussion of Summary 
of Factors Affecting the Six DPSs of Scalloped Hammerhead Sharks). In 
fact, the commenters use the 12-month ``not warranted'' determination 
and Proposed Rule as a reference of support for many of their 
statements. We agree that overutilization, inadequate regulatory 
measures, and other natural or manmade factors are threats to the 
Central & SW Atlantic DPS, Eastern Pacific DPS, Eastern Atlantic DPS, 
and Indo-West Pacific DPS, and have discussed their effects on the 
extinction risk of these four DPSs in the Proposed Rule and Status 
Review Report.
    Comment 6: One commenter stated that the species is under severe 
stress from climate change, but did not provide a reference or data to 
support this statement.
    Response: Although the Status Review Report did not find evidence 
of global climate change as a current threat to the scalloped 
hammerhead shark, we received new information since publication of the 
Proposed Rule that specifically investigated this threat for scalloped 
hammerhead sharks on Australia's Great Barrier Reef (GBR) (Chin et al., 
2010). Chin et al. (2010) conducted an integrated risk assessment for 
climate change to assess the vulnerability of scalloped hammerhead 
sharks, as well as a number of other chondrichthyan species, to climate 
change on the GBR. The assessment examined individual species but also 
lumped species together in ecological groups (such as freshwater and 
estuarine, coastal and inshore, reef, shelf, etc.) to determine which 
groups may be most vulnerable to climate change. The assessment took 
into account the in situ changes and effects that are predicted to 
occur over the next 100 years in the GBR and assessed each species' 
exposure, sensitivity, and adaptive capacity to a number of climate 
change factors including: water and air temperature, ocean 
acidification, freshwater input, ocean circulation, sea level rise, 
severe weather, light, and ultraviolet radiation. Of the 133 GBR

[[Page 38220]]

shark and ray species, the assessment identified 30 as being moderately 
or highly vulnerable to climate change. The scalloped hammerhead shark, 
however, was not one of these species. In fact, the scalloped 
hammerhead shark was ranked as having a low overall vulnerability to 
climate change, with low vulnerability to each of the assessed climate 
change factors. Given the available information, we do not find 
evidence that global climate change is a current threat to the 
scalloped hammerhead shark.

Threats to the Four Listed DPSs

    Comment 7: The commenters agreed with the proposed listing status 
of the Eastern Atlantic DPS and Eastern Pacific DPS as endangered, 
noting the threats of juvenile mortality from artisanal fisheries, 
overutilization by artisanal fisheries, poorly regulated fisheries, and 
evidence of significant declines in abundance. The commenters 
frequently cited to the Proposed Rule as support for their statements.
    Response: We agree that the Eastern Atlantic DPS and Eastern 
Pacific DPS are currently in danger of extinction from threats of 
overutilization, inadequacy of existing regulatory mechanisms, and 
other natural and manmade factors, and thus are listing these two DPSs 
as endangered under the ESA.
    Comment 8: Several commenters agreed with our findings for, and 
proposal to list, the Central & SW Atlantic DPS as threatened; however, 
they urged NMFS to closely monitor fishing trends and encourage gear 
research and mitigation.
    Response: We agree that the Central & SW Atlantic DPS warrants 
listing as threatened. We will monitor the status of the Central & SW 
Atlantic DPS during our periodic reviews of listed species. Under 
Section 4(c)(2) of the ESA, we are required to conduct a review of the 
status of listed species at least once every five years to determine 
whether the species should be removed from the list or requires a 
change in its status. We have no response to conducting further 
research on gear effects as that is beyond the scope of the Proposed 
Rule.

Proposed Boundaries of the Indo-West Pacific DPS and Inclusion of U.S. 
Flag Pacific Islands

    Comment 9: One commenter mentioned that NMFS may need to further 
consider the differing regional management capabilities and challenges 
to recovery and suggested further sub-dividing the Indo-West Pacific 
DPS to assure adequate protection to the most vulnerable areas.
    Response: DPS identifications are based on the best available 
information relevant to the discreteness and significance criteria of 
the DPS policy. Although policy considerations are important when 
determining whether a population is discrete from other conspecific 
populations and significant to the taxon to which it belongs, we also 
rely on the available science to support these determinations. In terms 
of the Indo-West Pacific DPS, the best available scientific data, which 
included both genetic data and tagging studies, indicated a population 
where males of the species readily mix within the connecting habitats 
of the Indo-West Pacific range. While we agree that there are differing 
regional management capabilities and challenges within the Indo-West 
Pacific, the species is highly migratory within the region (with 
indications of long-shore dispersal and panmixia; Ovenden et al., 2011) 
and, as such, we do not see a conservation benefit that will be gained 
from further dividing the DPS into smaller units.
    Comment 10: Several commenters stated that the Indo-West Pacific 
DPS encompasses an extremely large area, with geographic boundary lines 
that have been drawn based on relatively little supporting biological 
information. The genetic study cited as support for the DPS only 
includes samples from Taiwan, the Philippines, and Hawaii, but none 
from any locations in between the Western and Central Pacific range. 
The referenced tagging studies are similarly limited in scope.
    Response: As the comment mentions, the tagging information and 
genetic studies are limited in scope; however, in identifying DPSs, we 
must work with the best available scientific information relevant to 
the discreteness and significance criteria of the DPS policy. We are 
not aware of any study comparing genetics from locations between the 
Western and Central Pacific regions, nor did the commenter provide such 
information. In addition, we are not aware of any tagging information 
for scalloped hammerhead sharks offshore around the Hawaiian 
Archipelago, surrounding high seas, or other U.S. possessions in the 
Pacific, nor has this information been provided. As such, we must work 
with the best available information, and we used tagging studies in 
combination with DNA studies to come to the determination that 
scalloped hammerhead sharks do not commonly make oceanic migrations, 
are a coastal pelagic species with evidence of regional residential 
populations, and can be delineated into DPSs based on their behavior, 
geophysical boundaries, and genetic characteristics (see discussion in 
12-month ``not warranted'' determination at 78 FR 20718, discussion of 
Identification of Distinct Population Segments, and the Status Review 
Report for more information).
    We disagree that the geographic boundary lines were drawn with 
little supporting biological information. In fact, we based the 
coordinates of the boundary lines on the conclusions from the DPS 
analysis discussed within the Status Review Report but acknowledge that 
this may not have been fully explained in the 12-month ``not 
warranted'' determination and Proposed Rule. The Indo-West Pacific DPS 
is bounded to the south by 36[deg] S. latitude (lat) and to the north 
by 40[deg] N. lat. These boundary lines are based on the known 
geographic range of the species (Compagno, 1984; Baum et al., 2007; 
Bester, 2011). The Indo-West Pacific DPS is bounded to the west by 
20[deg] E. longitude (long). This boundary line provides the separation 
from the Eastern Atlantic DPS as evidenced by the available genetic 
information that suggests that members of the Eastern Atlantic DPS 
rarely conduct long distance southern migrations into the Indo-West 
Pacific to mix with other S. lewini individuals (Daly-Engel et al., 
2012). In the east, the southern Indo-West Pacific boundary line 
extends to 130[deg] W. long, then moves due north to 4[deg] S. lat., 
then due west to 150[deg] W. long., then due north to 10[deg] N. lat. 
These boundary lines coincide with the Western and Central Pacific 
Fisheries Commission (WCPFC) convention area boundaries within the 
Eastern Pacific.
    As differences in S. lewini exploitation coinciding with 
international boundary lines were cited as support for the DPS 
delineation, we determined that the most effective way to conserve the 
DPS was to delineate it by relevant Regional Fishery Management 
Organization (RFMO) boundary lines, the implication being that any 
conservation measures passed by the RFMO (in this case, the WCPFC) 
would be applicable to the entire DPS, not just a portion of it. From 
the 10[deg] N. lat., the boundary for the Indo-West Pacific DPS extends 
due west to 175[deg] E. long. and then due north to 40[deg] N. lat. 
These boundary lines were primarily a consequence of the Central 
Pacific DPS delineation, in order to encompass all open ocean areas 
(and, hence, extending to the border of the Central Pacific DPS 
boundary line). More information on the delineation of the Central 
Pacific DPS boundary lines can be found in our responses to the 
comments below.
    Comment 11: A commenter noted that NMFS has included Johnston Atoll 
in

[[Page 38221]]

the Central Pacific DPS due to its proximity to the Hawaiian 
archipelago, but has not provided sufficient evidence to show why the 
remaining areas of the Pacific Remote Island Areas (PRIA) are not 
sufficiently close to the Hawaiian Archipelago. In other words, it is 
unclear why other areas of the PRIA are not included in the Central 
Pacific DPS.
    Response: The PRIA includes seven islands, atolls, and reefs 
located in the Central Pacific that are under the jurisdiction of the 
United States: Baker, Howland, Wake and Jarvis Islands, Johnston Atoll, 
Kingman Reef, and Palmyra Atoll (Rose Atoll and Midway Atoll are also 
sometimes included among the PRIAs). There is deep water separating the 
Hawaiian Archipelago and Johnson Atoll in the Central Pacific from the 
other PRIAs, including Kingman Reef (the closest PRIA) and Palmyra 
Atoll. In addition, the distance between Johnston Atoll and Kingman 
reef is approximately 1,350 to 1,400 km. As stated in the 12-month 
``not warranted'' determination, the bathymetric barrier and the long 
distance between Johnston Atoll and the adjacent PRIAs are the primary 
reasons for the delineation between these areas (see 78 FR 20718, 
discussion of Identification of Distinct Population Segments, 
Discreteness, Pacific Ocean Population Segments and discussion of 
Proposed Determinations). Although the 12-month ``not warranted'' 
determination references the scalloped hammerhead's ability to travel 
long distances (1,941 km, Bessudo et al., 2011; 1,671 km, Kohler and 
Turner, 2001; Hearn et al., 2010; see 78 FR 20718, discussion of Life 
History, Biology, and Status of the Petitioned Species, Movement and 
Habitat Use), it is important to note that these migrations occurred 
along continental margins or coastlines (Northwest Atlantic coast: 
1,671 km), or between islands with similar oceanographic conditions 
(1,941 km--however this was not a direct migration. The scalloped 
hammerhead shark migrated to and around islands, separated by distances 
of up to 710 km, and the total trip was estimated at 1,941 km). This 
species has been known to disperse into pelagic waters off seamounts 
and islands, usually for limited durations (at night; Klimley and 
Nelson 1984; Hearn et al., 2010; Bessudo et al., 2011) and distances 
(<10 km; Klimley and Nelson 1984; Hearn et al., 2010). The assumption 
is that they are foraging in the open waters at night and returning to 
the seamounts during the day, with evidence of seasonal site residence 
and fidelity. There is currently no tagging evidence of adult scalloped 
hammerhead sharks that would suggest they traverse long distances 
(>1000 km) over open water where no submarine features exist to 
interrupt the migration. Thus, based on the best available information 
above and presented in the Status Review Report, we decided on a 
10[deg] N. lat. southern boundary line for the Central Pacific DPS, 
which coincides with the discreteness and significance findings from 
the DPS analysis.
    Comment 12: A few commenters state that the U.S. Flag Pacific 
Islands (American Samoa, Guam, and Commonwealth of the Northern Mariana 
Islands (CNMI)) and the PRIA should either be included in the Central 
Pacific DPS or constitute a separate DPS. They argue that these islands 
satisfy the discreteness criteria under the DPS policy because they are 
delimited by international governmental boundaries within which 
significant differences in control of exploitation and regulatory 
mechanisms exist compared to the surrounding areas in the Indo-West 
Pacific DPS.
    Response: As previously stated, some of the PRIAs were not included 
in the Central Pacific DPS due to the significant bathymetric barriers 
and distance between the islands. The U.S. Flag Pacific Islands are 
located even farther away from the Central Pacific DPS, and thus the 
same rationale would apply to these territories. There is currently no 
tagging evidence that shows or would suggest frequent migrations 
between the scalloped hammerhead sharks around the U.S. Flag Pacific 
Islands and the Central Pacific DPS. The best available data indicate 
these two populations are separate. As such, we identify the scalloped 
hammerhead sharks around the U.S. Flag Pacific Islands as part of the 
Indo-West Pacific and not as part of the Central Pacific DPS.
    We also do not agree that the scalloped hammerhead sharks found in 
the U.S. Flag Pacific Islands and other PRIAs should be a separate DPS. 
The joint DPS policy identifies two elements that must be considered 
when identifying a DPS: (1) The discreteness of the population segment 
in relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the significance of the population segment to the 
remainder of the species (or subspecies) to which it belongs. When the 
discreteness criterion is met for a potential DPS, as the commenter 
contends, then we must consider the significance criterion next. 
Significance is evaluated in terms of the importance of the population 
segment to the overall welfare of the species. Some of the 
considerations that can be used to determine a discrete population 
segment's significance to the taxon as a whole include: (1) Persistence 
of the population segment in an unusual or unique ecological setting; 
(2) evidence that loss of the population segment would result in a 
significant gap in the range of the taxon; and (3) evidence that the 
population segment differs markedly from other populations of the 
species in its genetic characteristics.
    The scalloped hammerhead sharks found around the U.S. Pacific Flag 
Islands are not in an unusual or unique ecological setting. Scalloped 
hammerhead sharks are found in coastal warm temperate and tropical seas 
worldwide, frequently observed in aggregations over seamounts and near 
islands. Similar ecological conditions as those found around the U.S. 
Pacific Flag Islands are also observed within the Central Pacific DPS 
(e.g., Johnston Atoll, Hawaiian archipelago) and other neighboring 
islands of the Indo-West Pacific DPS (e.g., Palau, Micronesia, Fiji, 
Philippines, New Caledonia). We do not have any information, nor was 
any provided, that would suggest the ecological conditions surrounding 
the U.S. Pacific Flag Islands are unusual or unique compared to the 
other areas where scalloped hammerhead sharks have been observed.
    Currently, we do not have any evidence that would suggest that loss 
of the scalloped hammerhead sharks around the U.S. Pacific Flag Islands 
and other PRIAs would result in a significant gap in the range of the 
taxon. The waters surrounding the U.S. Pacific Flag Islands and PRIAs 
constitute only a very small portion of the range of the scalloped 
hammerhead within the Indo-West Pacific. In the event of a loss, these 
areas would likely be repopulated by scalloped hammerhead sharks from 
neighboring locations, such as the Marshall Islands, Micronesia, Palau, 
the Philippines, Indonesia, Papua New Guinea, New Caledonia, and 
Tokelau. The data support this assumption as this species commonly 
disperses along continuous coastlines, continental margins, and 
submarine features, such as chains of seamounts, commonly associated 
with scalloped hammerhead shark ``hotspots'' (Holland et al., 1993; 
Kohler and Turner, 2001; Duncan and Holland, 2006; Hearn et al., 2010; 
Bessudo et al., 2011; Diemer et al., 2011). This is true even for 
island populations, with tagged S. lewini individuals frequently 
migrating to nearby islands and mainlands with similar oceanographic 
conditions and no bathymetric barriers (Duncan and

[[Page 38222]]

Holland, 2006; Hearn et al., 2010; Bessudo et al., 2011). In other 
words, loss of scalloped hammerhead sharks from the U.S. Flag Pacific 
Islands and other PRIAs would not result in a significant gap in the 
range of the taxon.
    Finally, there is no evidence, nor has the commenter provided any 
new information, that would suggest that the population segment around 
the U.S. Pacific Flag Islands or PRIAs differs markedly in its genetic 
characteristics (such as exhibiting unique haplotypes) from the other 
scalloped hammerhead sharks of the Indo-West DPS. Thus, using the best 
available scientific data, we do not find that the U.S. Pacific Flag 
Islands and PRIA population satisfy the significance criterion of the 
DPS policy. These scalloped hammerhead sharks will remain included in 
the Indo-West Pacific DPS.
    Comment 13: Several commenters argue that the U.S. Flag Pacific 
Islands have management measures and regulatory mechanisms comparable 
to Hawaii that provide equivalent protections for scalloped hammerhead 
sharks. The commenters proceed to discuss the various management and 
regulatory mechanisms in the U.S. Flag Pacific Islands as support for 
their statement that these mechanisms protect the scalloped hammerhead 
shark from becoming threatened or endangered in the foreseeable future. 
Therefore, similar to the Central Pacific DPS, the commenters propose 
that these populations do not warrant listing.
    Response: We are responsible for determining whether scalloped 
hammerhead sharks are threatened or endangered under the ESA (16 U.S.C. 
1531 et seq.). To make this determination, we first consider whether a 
group of organisms constitutes a ``species'' under Section 3 of the 
ESA, then whether the status of the species qualifies it for listing as 
either threatened or endangered. Section 3 of the ESA defines species 
to include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' The scalloped hammerhead 
sharks found around the U.S. Pacific Flag islands are considered to be 
part of the larger Indo-West Pacific DPS. The DPS is the ``species'' 
that qualifies for listing under the ESA; we cannot make a ``not 
warranted'' finding on a portion of the DPS.
    While we agree that the U.S. Flag Pacific Islands have management 
measures and regulatory mechanisms comparable to Hawaii, including 
gear, logbook, observer, and protected species workshop requirements, 
and longline exclusion zones, which afford some protection to scalloped 
hammerhead sharks within those waters, we must evaluate the adequacy of 
these regulations in terms of the protections they afford to the entire 
Indo-West Pacific DPS. As the Proposed Rule (78 FR 20718; April 5, 
2013) notes, threats to the Indo-West Pacific DPS include 
overutilization by industrial/commercial and artisanal fisheries and 
inadequacy of existing regulatory mechanisms in many areas of the Indo-
West Pacific DPS range (78 FR 20718, discussion of Proposed 
Determinations). Few countries within the Indian Ocean have regulations 
aimed at controlling the exploitation of shark species. In addition, 
while many of the small Pacific Island countries have created shark 
sanctuaries in their respective waters, including Tokelau, Palau, 
Marshall Islands, Cook Islands, and French Polynesia, enforcement has 
proven difficult, leading to reports of vessels illegally fishing 
thousands of pounds of shark products from these waters (Paul, 2009; 
AFP, 2012; Turagabeci, 2012). As discussed in the Status Review Report 
and Proposed Rule, the ERA team considered the current regulatory 
mechanisms, including those within the U.S. Pacific Flag Islands and 
elsewhere within the DPS, and evaluated the demographic risks and 
threats to the Indo-Pacific DPS and concluded that the Indo-West 
Pacific DPS is not currently in danger of extinction, but is likely to 
become so in the foreseeable future. We have reviewed the best 
available information and have determined that the Indo-West Pacific 
DPS warrants listing as a threatened species.
    Comment 14: One commenter stated that NMFS should re-locate the 
northern boundary of the Indo-West Pacific DPS farther south (e.g., to 
the equator) so that more U.S. jurisdictional waters and high seas 
waters fished by U.S. fisheries are included within the Central Pacific 
DPS.
    Response: The southern boundary line of the Central Pacific DPS 
(which is also the northern boundary line of the Indo-West Pacific 
mentioned in the comment) was not chosen based on catch rates or 
fishing effort by U.S. fisheries. The boundary lines of each DPS were 
chosen based on behavioral and biological data from tagging and genetic 
studies and consideration of the physical features of the habitats. As 
previously mentioned, given the long distance between Johnston Atoll 
and Kingman Reef and Palmyra Atoll, coupled with the presence of deep 
water barriers between these locations, a boundary line of 10[deg] N 
was chosen to separate these locations and divide the Indo-West Pacific 
DPS from the Central Pacific DPS. These boundary lines are meant to 
reflect the conclusions from the DPS analysis regarding the 
discreteness and significance of each DPS.
    Comment 15: A few commenters stated that NMFS did not provide any 
information regarding the presence of scalloped hammerhead sharks in 
nearshore areas of American Samoa and CNMI and only limited information 
for Guam, and that they are unaware of any evidence to suggest 
localized population declines of scalloped hammerhead sharks in the 
U.S. Flag Pacific Islands.
    Response: We do not have any quantitative information regarding the 
abundance of scalloped hammerhead sharks in nearshore areas of American 
Samoa and CNMI. During the public comment period, the American Samoa 
Government provided us with information on observed catches of 
scalloped hammerhead sharks in the American Samoa longline fishery. The 
American Samoa longline fishery has had an observer program since 2006, 
with coverage ranging between 6 and 8 percent from 2006-2009, and 
between 20 and 33 percent since 2010. Only eight scalloped hammerhead 
sharks have been observed caught during this period in the American 
Samoa longline fishery.
    We do not presume localized population declines of scalloped 
hammerhead sharks in the U.S. Flag Pacific Islands. In the 12-month 
``not warranted'' determination, we state that decreases in CPUE of 
sharks off the coasts of South Africa and Australia, and in longline 
catch in Papua New Guinea and Indonesian waters, suggest localized 
population declines (78 FR 20718, discussion of Evaluation of 
Demographic Risks, Indo-West Pacific DPS and discussion of 
Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes factor, Indo-West Pacific DPS). We considered these population 
declines, as well as information regarding other threats, such as the 
inadequacy of existing regulatory measures to protect the entire DPS 
(not just individuals found off American Samoa) and the species' life 
history characteristics that present demographic risks to its continued 
viability, when we concluded that the Indo-West Pacific DPS is 
approaching a level of abundance and productivity that places its 
future persistence in question throughout its entire range.
    Comment 16: One commenter mentioned that American Samoa already has 
an existing regulation banning the take of all sharks and

[[Page 38223]]

therefore the proposal to list the species under the ESA is redundant.
    Response: The scalloped hammerhead sharks found in waters of 
American Samoa are part of the Indo-West Pacific DPS. Although American 
Samoa currently bans the taking of all sharks, this is not a consistent 
regulation throughout the range of the Indo-West Pacific DPS. As 
mentioned in a previous response (and discussed in the Status Review 
Report and 12-month ``not warranted'' determination), threats to the 
Indo-West Pacific DPS include overutilization by industrial/commercial 
and artisanal fisheries (in countries that, for example, do not ban the 
taking of sharks) and inadequacy of existing regulatory mechanisms or 
weak enforcement of current regulations in many areas, resulting in 
frequent reports of illegal fishing of the species. Based on an 
evaluation of these threats, the Indo-West Pacific DPS was found to 
warrant listing as threatened.

Threats to the Species

    Comment 17: One commenter noted that large-scale impacts (e.g., 
global climate change) are the greatest threats to this mainly oceanic 
shark. The commenter concludes that it is therefore highly unlikely 
that proposing to list this shark species under the ESA will eliminate 
this threat.
    Response: We disagree that the greatest threat to the species is 
global climate change. This statement, which is found in the 12-month 
``not warranted'' determination and Proposed Rule (see 78 FR 20718, 
discussion of the Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range), was made with regard to the 
evaluation of the threat of habitat modification or destruction. We 
found no evidence that would suggest the scalloped hammerhead was in 
danger of extinction due to habitat destruction or modification and 
instead posited that large-scale impacts, such as global climate 
change, could potentially alter habitat conditions and become a threat 
to the species. However, based on the Chin et al. (2010) study 
discussed previously, as well as the information in the Status Review 
Report, we have not found evidence to indicate that any large-scale 
impacts affecting habitat conditions are currently significant threats 
to the species. As discussed in the Status Review Report and 12-month 
``not warranted'' determination, the threats of overutilization, 
inadequacy of existing regulatory mechanisms, and other natural or 
manmade factors warrant listing of the Eastern Atlantic and Eastern 
Pacific DPSs as endangered and the Indo-West Pacific and Central & SW 
Atlantic DPSs as threatened (see 78 FR 20718, discussion of Proposed 
Determinations).
    Regardless of whether a threat can be eliminated, under the ESA, a 
species must be listed if it is endangered or threatened as a result of 
any one or a combination of the following five factors: the present or 
threatened destruction, modification, or curtailment of its habitat or 
range (which may include effects from global climate change); 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; the inadequacy of existing 
regulatory mechanisms; or other natural or manmade factors affecting 
its continued existence (ESA, section 4(a)(1)(A)-(E)). While listing a 
species does not automatically remove all threats, the ESA does provide 
tools for greater protection of listed species. When this final rule 
takes effect, the prohibition on ``take'' in section 9 of the ESA will 
apply to the Eastern Pacific and Eastern Atlantic DPSs. Also, any 
action funded, authorized, or undertaken by a Federal agency that may 
affect any of the listed DPSs will require consultation between that 
Federal agency and NMFS under section 7 of the ESA. Once listed, 
section 4 of the ESA also requires that we develop and implement 
recovery plans that must, in part, identify objective, measurable 
criteria which, when met, would result in a determination that the 
species may be removed from the list; this standard inherently requires 
that recovery plans propose methods to address impacts and threats to 
the species.

Factual Errors Within Status Review Report and 12-Month ``Not 
Warranted'' Determination

    Comment 18: Several commenters pointed out some factual errors 
regarding the description of the Hawaii-based longline fishery. For 
example, the shallow-set fishery is subject to periodic closures if sea 
turtle ``hard caps'' are reached, but the fishery has only closed twice 
since 2004 due to sea turtle interactions. The shallow-set fishery also 
operates in higher latitudes than the deep-set fishery and, as a 
result, only two scalloped hammerhead sharks have been caught in the 
shallow-set fishery since 2004. It is therefore incorrect to imply that 
shallow-set management measures are beneficial to scalloped hammerhead 
sharks when in reality there are fewer takes due to the nature of the 
fishery.
    Response: We have updated the Status Review Report accordingly and 
reviewed the incorrect implication within the report (included in the 
DPS analysis section). We do not find that the removal of the statement 
regarding the benefits of the shallow-set management measures changes 
the conclusions of the DPS analysis.
    Comment 19: A commenter noted that the observer program for the 
Hawaii-based longline fishery was initiated in 1994, not 1995. Observer 
coverage rate from 1994 to 2000 ranged between 3 and 10 percent and 
increased to a minimum of 20 percent in 2001. The deep-set fishery is 
currently observed at a minimum of 20 percent.
    Response: We have updated the Status Review Report accordingly.
    Comment 20: A commenter stated that the description of the longline 
prohibited area around the Main Hawaiian Islands is not accurate. A 
recently implemented False Killer Whale Take Reduction Plan (77 FR 
71260; November 29, 2012) under the Marine Mammal Protection Act 
eliminated the seasonal contraction of the exclusion zone, establishing 
a permanent longline prohibited area ranging from 50-75 nautical miles 
(93-139 km) around the Main Hawaiian Islands. As a result, there is now 
a year-round longline fishery closure around the Main Hawaiian Islands.
    Response: We accept this correction and have concluded that this 
new information regarding new fishery management measures that will 
protect scalloped hammerhead sharks from being incidentally caught in 
longline gear within the closure further supports our ``not warranted'' 
determination for the Central Pacific DPS.
    Comment 21: One commenter noted that NMFS incorrectly attributes 
threats to the Central Pacific DPS from the purse seine fishery. Purse 
seine effort in the Western and Central Pacific Ocean occurs south of 
10[deg] N. lat., with little to no effort in the Central Pacific DPS 
range. It is worth nothing that higher velocity wind speeds are 
encountered in higher latitudes north and south of 10[deg] N. lat. And 
10[deg] S. lat., respectively, which makes it difficult to operate 
large purse seine vessels that may bycatch schools of scalloped 
hammerhead sharks.
    Response: We have updated the Status Review Report accordingly. The 
impact of this correction on our evaluation of threats to the Central 
Pacific DPS has not changed our determination that listing the Central 
Pacific DPS is not warranted at this time.
    Comment 22: One commenter mentioned that NMFS incorrectly states 
that American Samoa has a shark sanctuary. Rather, American Samoa has

[[Page 38224]]

an Executive Order prohibiting the possession and take of marine 
species that includes all shark species.
    Response: We have updated the Status Review Report accordingly.

Additional Information for Status Review Report and 12-Month ``Not 
Warranted'' Determination

    Comment 23: One commenter noted that NMFS failed to mention that 
the U.S. Territories of American Samoa, Guam, and CNMI also have 
measures to prohibit shark finning or possession of shark fins when it 
discussed U.S. legislation in the 12-month ``not warranted'' 
determination and Proposed Rule.
    Response: Although we did not specifically discuss the shark 
finning and possession bans of the U.S. Flag Pacific Islands within the 
text of the 12-month ``not warranted'' determination and Proposed Rule, 
this information was included in the Status Review Report. We 
considered the Status Review Report, upon which the 12-month ``not 
warranted'' determination and Proposed Rule was based, as providing the 
best available scientific and commercial information on the scalloped 
hammerhead shark, and used it to inform our determination. Thus, the 
information on shark finning and possession bans of the U.S. Flag 
Pacific Islands included in the Status Review Report was considered in 
our 12-month ``not warranted'' determination and Proposed Rule.
    Comment 24: Several commenters provided detailed descriptions of 
the American Samoa longline fishery and information regarding Guam and 
CNMI longline fisheries.
    Response: We appreciate the additional information and have updated 
the Status Review Report accordingly.
    Comment 25: One commenter provided further information on the 
decline of landings from Brazil and the Eastern Atlantic, catch records 
from India, and information on juveniles and landings from the Eastern 
Pacific. The commenter supported the proposed endangered and threatened 
listing statuses for the DPSs.
    Response: We reviewed the information provided by the commenter and 
determined that these data provide further support for our 
designations. We have updated the Status Review Report to include this 
new information.

ESA Section 9 Take Prohibitions

    Comment 26: One commenter requested that if NMFS issues a Section 
4(d) rule for the Indo-West Pacific DPS, Section 9 take prohibitions 
should not apply to licensed Hawaii-based commercial longline vessels. 
The commenter stated that the two primary threats that NMFS identified 
as contributing to the extinction risk of the Indo-West Pacific DPS 
were (1) lack of regulatory controls over certain fisheries and (2) 
overutilization caused by bycatch and the targeting of hammerhead 
sharks for fins or meat. According to the commenter, the Hawaii-based 
longline fisheries do not contribute to either of these threats. The 
commenter argues that existing regulatory structures applicable to the 
Hawaii-based longline fisheries support the conservation of the Indo-
West Pacific DPS, and the effects, if any, of the Hawaii-based longline 
fisheries on scalloped hammerhead sharks are negligible, discountable, 
and insignificant. Thus, the commenter argues that the Hawaii-based 
longline fisheries should not be subjected to Section 9 take 
prohibitions as it is not necessary or advisable for the conservation 
of the Indo-West Pacific DPS.
    Response: Once a species is listed as endangered, the ESA section 9 
take prohibitions of the ESA automatically apply and any `take' of the 
species is illegal unless that take is authorized under an incidental 
take statement following ESA section 7 consultation or under an ESA 
section 10 permit authorizing directed take (e.g., for scientific 
research or enhancement of the species) or incidental take during an 
otherwise lawful activity. In the case of a species listed as 
threatened, section 4(d) of the ESA requires the implementation of 
measures deemed necessary and advisable for the conservation of 
species. Therefore, for any species listed as threatened, we can impose 
any or all of the section 9 prohibitions if such measures are necessary 
and advisable for the conservation of the species. However, after a 
review of the threats and needs of the Central & SW Atlantic DPS and 
the Indo-West Pacific DPS, we have decided not to propose protective 
regulations for either of these threatened DPSs (see the Section 9 Take 
Prohibitions section below for more information).
    Comment 27: A commenter requested that if NMFS pursues a threatened 
status for the Indo-West Pacific DPS, without modifications to the 
boundaries of the DPS, then NMFS should recognize the significant shark 
management and conservation measures in place for the U.S. Flag Pacific 
Islands. NMFS should exempt any federally authorized or permitted 
activity in the U.S. Flag Pacific Islands that may occasionally operate 
within the Indo-West Pacific DPS from ESA Section 4(d) take 
prohibitions.
    Response: As mentioned above and as explained further below, we 
have determined that additional regulations prohibiting take are not 
necessary or advisable for either of the threatened DPSs at this time.

Critical Habitat

    Comment 28: One commenter stated that NMFS should not designate 
critical habitat within any of the U.S. Flag Pacific Islands because 
existing measures negate the need for any special management 
consideration or protections, and the U.S. Flag Pacific Islands are on 
the margins of the Indo-West Pacific distribution.
    Response: The fact that the location of the U.S. Flag Pacific 
Islands are on the margins of the Indo-West Pacific DPS distribution 
does not necessarily have any bearing on the designation of critical 
habitat. Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the ESA is no longer necessary.
    Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires 
that, to the extent prudent and determinable, critical habitat be 
designated concurrently with the listing of a species. Designations of 
critical habitat must be based on the best scientific data available 
and must take into consideration the economic, national security, and 
other relevant impacts of specifying any particular area as critical 
habitat. If we determine that it is prudent and determinable, we will 
publish a proposed designation of critical habitat for scalloped 
hammerhead sharks in a separate rule. In making that determination, we 
would consider input from government agencies, the scientific 
community, industry and any other interested party on features and 
areas that may meet the definition of critical habitat for the DPSs to 
be listed that occur in U.S. waters or its territories; the Central & 
SW Atlantic,

[[Page 38225]]

Indo-West Pacific, and Eastern Pacific DPSs. Input may be sent to the 
Office of Protected Resources in Silver Spring, Maryland (see 
ADDRESSES). Please note that we are not required to respond to any 
input provided on this matter.

Summary of Changes From the Proposed Listing Rule

    Based on the comments received and our review of the Proposed Rule, 
we made the changes listed below.
    1. We added information on the delineation of the DPS boundary 
lines to clarify why these specific boundary lines were chosen.
    2. We made minor revisions or added information on management 
measures and regulatory mechanisms found within the U.S. Flag Pacific 
Islands based on information from the American Samoa Government and the 
WCPFC.
    3. We changed many of the references of ``IUU'' fishing to 
``illegal'' fishing based on comments received from our internal review 
of the proposed listing rule and discussions with the ERA team. The ERA 
team had defined ``IUU'' fishing as any instance of illegal fishing 
within either the jurisdiction of a coastal state or upon the high seas 
that is essentially not being regulated (as it is done without the 
authorization of the nation or organization governing that fishing area 
or species) and ultimately goes unreported. However, the definition of 
``IUU'' fishing for the purposes of the U.S. High Seas Driftnet Fishing 
Moratorium Protection Act (16 U.S.C. 1826d-1826g) is provided under 
regulations at 50 CFR 300.201, which defines ``IUU'' fishing as:
    (1) Fishing activities that violate conservation and management 
measures required under an international fishery management agreement 
to which the United States is a party, including but not limited to 
catch limits or quotas, capacity restrictions, and bycatch reduction 
requirements;
    (2) Overfishing of fish stocks shared by the United States, for 
which there are no applicable international conservation or management 
measures or in areas with no applicable international fishery 
management organization or agreement, that has adverse impacts on such 
stocks; or,
    (3) Fishing activity that has a significant adverse impact on 
seamounts, hydrothermal vents, cold water corals and other vulnerable 
marine ecosystems located beyond any national jurisdiction, for which 
there are no applicable conservation or management measures, including 
those in areas with no applicable international fishery management 
organization or agreement.
    Because the ERA team was not using this regulatory definition of 
``IUU'' fishing when referring to ``IUU'' fishing in the Status Review 
Report, we have changed some of the text that previously referred to 
``IUU'' fishing to read as ``illegal'' fishing in order to reduce 
confusion and more accurately reflect the term as understood and 
defined by the ERA team.
    4. We made minor updates or added information in the listing rule 
based on recommendations from peer reviewers, commenters, new 
information we received or reviewed since publication of the Proposed 
Rule, and our own internal review of the proposed listing rule.
    We have also updated our Status Review Report based on new 
information that we received or reviewed since March 2013, as well as 
information provided by peer reviewers and commenters mentioned above. 
From hereafter, mention of the ``Status Review Report'' refers to the 
updated version (see Miller et al. 2014, available at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm). Our 
listing determination and summary of the data on which it is based, 
with the incorporated changes, are presented in the remainder of this 
document.

Identification of Distinct Population Segments

    As described above, the ESA's definition of ``species'' includes 
``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' The genetic diversity among subpopulations, 
geographic isolation, and differences in international regulatory 
mechanisms provide evidence that several populations of scalloped 
hammerhead sharks meet the DPS Policy criteria. Therefore, prior to 
evaluating the conservation status for scalloped hammerhead sharks, and 
in accordance with the joint DPS policy, we considered: (1) The 
discreteness of any scalloped hammerhead shark population segment in 
relation to the remainder of the species to which it belongs; and (2) 
the significance of any scalloped hammerhead shark population segment 
to the remainder of the species to which it belongs.

Discreteness

    The Services' joint DPS policy states that a population of a 
vertebrate species may be considered discrete if it satisfies either 
one of the following conditions: (1) It is markedly separated from 
other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation) or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of Section 4(a)(1)(D) of the ESA. 
To inform its decisions with respect to possible scalloped hammerhead 
DPSs, the ERA team mainly relied on genetic data, tagging studies, and 
evidence of differences in the control of exploitation and management 
by international governmental bodies.
    Although scalloped hammerhead sharks are highly mobile, this 
species rarely conducts trans-oceanic migrations (Kohler and Turner, 
2001; Duncan and Holland, 2006; Duncan et al., 2006; Chapman et al., 
2009; Diemer et al., 2011). Female scalloped hammerhead sharks may even 
display a level of site fidelity for reproduction purposes (Duncan et 
al., 2006; Chapman et al., 2009) that likely contributes to the 
apparent genetic discontinuity in the global scalloped hammerhead shark 
population (Duncan et al., 2006; Chapman et al., 2009; Daly-Engel et 
al., 2012). Genetics analyses for scalloped hammerhead sharks using 
mitochondrial DNA (mtDNA), which is maternally inherited, and 
microsatellite loci data, which reflects the genetics of both parents, 
have consistently shown that scalloped hammerhead subpopulations are 
genetically diverse and that individual subpopulations can be 
differentiated (Duncan et al., 2006; Chapman et al., 2009; Ovenden et 
al., 2011; Daly-Engel et al., 2012). As discussed in the 12-month ``not 
warranted'' determination and Proposed Rule (see 78 FR 20718, 
discussion of Identification of Distinct Population Segments), genetic 
studies indicate that populations of S. lewini in the Atlantic are 
differentiated from those found in the Pacific or Indian Oceans (Duncan 
et al., 2006; Chapman et al., 2009; Ovenden et al., 2011; Daly-Engel et 
al., 2012). There is also evidence of further genetic isolation between 
the eastern and western Atlantic scalloped hammerhead populations, and 
finer scale delineation within the western Atlantic population (Duncan 
et al., 2006; Chapman et al., 2009; Daly-Engel et al., 2012). With 
regards to the S. lewini sharks in the Central Pacific and Eastern 
Pacific, both microsatellite loci

[[Page 38226]]

and mtDNA data indicate significant genetic differentiation between 
these two populations (Daly-Engel et al., 2012). However, within the 
Indo-West Pacific region a lack of genetic structure suggests frequent 
mixing of scalloped hammerhead populations found in these waters (Daly-
Engel et al., 2012). A comparison of microsatellite loci samples from 
the Indian Ocean, specifically samples from the Seychelles and West 
Australia, as well as from South Africa and West Australia, indicated 
either no or weak population differentiation (Daly-Engel et al., 2012). 
Additionally, there was no evidence of genetic structure between the 
Pacific and Indian Oceans, as samples from Taiwan, Philippines, and 
East Australia in the western Pacific showed no population 
differentiation from samples in the Indian Ocean (FST = -
0.018, P = 0.470) (Daly-Engel et al., 2012).
    Although these genetic data may imply that males of the species 
move widely within the Indo-West Pacific region, potentially across 
ocean basins, tagging studies suggest otherwise. Along the east coast 
of South Africa, for example, S. lewini moved an average distance of 
only 147.8 km (data from 641 tagged scalloped hammerhead sharks; Diemer 
et al., 2011). Tagging studies in other regions also suggest limited 
distance movements, and only along continental margins, coastlines, and 
submarine features, such as chains of seamounts, commonly associated 
with scalloped hammerhead shark ``hotspots'' (Holland et al., 1993; 
Kohler and Turner, 2001; Duncan and Holland, 2006; Hearn et al., 2010; 
Bessudo et al., 2011; Diemer et al., 2011). This is true even for 
island populations, with tagged S. lewini individuals frequently 
migrating to nearby islands and mainlands (Duncan and Holland, 2006; 
Hearn et al., 2010; Bessudo et al., 2011), but no evidence or data to 
support oceanic migration behavior. Thus, it seems more likely that the 
high connectivity of the habitats found along the Indian and western 
Pacific coasts have provided a means for this shark population to mix 
and reproduce without having to traverse deep ocean basins. Further 
explanation of the other discreteness factors can be found in the 12-
month ``not warranted'' determination and Proposed Rule (78 FR 20718).

Significance

    When the discreteness criterion is met for a potential DPS, as it 
is for the Northwest Atlantic & Gulf of Mexico, Central & Southwest 
Atlantic, Eastern Atlantic, Indo-West Pacific, Central Pacific, and 
Eastern Pacific population segments identified above, the second 
element that must be considered under the DPS policy is significance of 
each DPS to the taxon as a whole. Significance is evaluated in terms of 
the importance of the population segment to the overall welfare of the 
species. Some of the considerations that can be used to determine a 
discrete population segment's significance to the taxon as a whole 
include: (1) Persistence of the population segment in an unusual or 
unique ecological setting; (2) evidence that loss of the population 
segment would result in a significant gap in the range of the taxon; 
and (3) evidence that the population segment differs markedly from 
other populations of the species in its genetic characteristics.
    Based on the results from the genetic and tagging analyses 
mentioned previously, we believe that there is evidence that loss of 
any of the population segments would result in a significant gap in the 
range of the taxon. For example, the Indo-West Pacific region, which is 
hypothesized as the center of origin for S. lewini, with the oldest 
extant scalloped hammerhead species found in this region (Duncan et 
al., 2006; Daly-Engel et al., 2012), covers a wide swath of the 
scalloped hammerhead sharks' range (extending from South Africa to 
Japan, and south to Australia and New Caledonia and neighboring Island 
countries). However, as Daly-Engel et al. (2012) note, the migration 
rate of S. lewini individuals from West Africa into South Africa is 
very low (0.06 individuals per generation), suggesting that in the case 
of an Indo-West Pacific extirpation, re-colonization from the Eastern 
Atlantic to the Western Indian Ocean is very unlikely. In addition, re-
colonization from the Central Pacific DPS would also occur rather 
slowly (on an evolutionary timescale), as those individuals would have 
to conduct trans-oceanic migrations, a behavior that has yet to be 
documented in this species. The Central Pacific region, itself 
(extending from Kure Atoll to Johnston Atoll, and including the 
Hawaiian Archipelago), encompasses a vast portion of the scalloped 
hammerhead sharks' range in the Pacific Ocean and is isolated from the 
neighboring Indo-West Pacific and eastern Pacific regions by deep 
expanses of water. Loss of this DPS would result in a decline in the 
number of suitable and productive nursery habitats and create a 
significant gap in the range of this taxon across the Pacific Ocean. 
From an evolutionary standpoint, the Central Pacific population is 
thought to be the ``stepping stone'' for colonization to the isolated 
eastern Pacific, as Duncan et al. (2006) observed two shared haplotypes 
between Hawaii and the otherwise isolated Eastern Pacific population. 
In other words, in the case of an Eastern Pacific population 
extirpation and loss of the Central Pacific population, it would 
require two separate and rare colonization events to repopulate the 
Eastern Pacific population: one for the re-colonization of the central 
Pacific and another for the re-colonization of the eastern Pacific. 
Thus, on an evolutionary timescale, loss of the Central Pacific 
population would result in a significant truncation in the range of the 
taxon.
    Even those discrete population segments that share a connecting 
coastline, like the Northwest Atlantic & Gulf of Mexico and Central & 
Southwest Atlantic population segments, will not likely see individuals 
re-colonizing the range of the other population segment, given that 
gene flow is low between these areas and tagging studies show limited 
distance movements by individuals along the western Atlantic coast. In 
addition, repopulation by individuals from the eastern Pacific to the 
western Atlantic, or vice versa, is highly unlikely as these animals 
would have to migrate through suboptimal oceanographic conditions, such 
as very cold waters, that are detrimental to this species' survival. 
Therefore, the display of weak philopatry and constrained migratory 
movements provides evidence that loss of any of the discrete population 
segments would result in a significant gap in the range of the 
scalloped hammerhead shark, negatively impacting the species as a 
whole.

Boundary Lines

    In summary, the scalloped hammerhead shark population segments 
considered by the ERA team meet both the discreteness and significance 
criteria of the DPS policy. We concur with the ERA team's conclusion 
that there are six scalloped hammerhead shark DPSs, which comprise the 
global population, and are hereafter referred to as: (1) NW Atlantic & 
GOM DPS, (2) Central & SW Atlantic DPS, (3) Eastern Atlantic DPS, (4) 
Indo-West Pacific DPS, (5) Central Pacific DPS, and (6) Eastern Pacific 
DPS. The boundaries for each of these DPSs, and brief explanations of 
specific boundary lines based on the DPS analysis, are as follows (see 
Figure 1):
    (1) NW Atlantic & GOM DPS--Bounded to the north by 40[deg] N. lat., 
includes all U.S. EEZ waters in the Northwest Atlantic off the U.S. 
mainland and extends due east along 28[deg] N. lat. off the coast of 
Florida to 30[deg] W. long. In the Gulf of Mexico, the

[[Page 38227]]

boundary line includes all waters of the Gulf of Mexico, with the 
eastern portion bounded by the U.S. and Mexico EEZ borders.
    Explanation: The NW Atlantic & GOM DPS was identified as being 
discrete from other DPSs as a consequence of genetic, behavioral, and 
physical factors. Tagging studies, for example, showed that scalloped 
hammerhead sharks in the northwest Atlantic and Gulf of Mexico 
frequently mixed but there was no evidence of this mixing occurring 
farther south with scalloped hammerhead sharks in Central and South 
America, or with any of the other DPSs. Additionally, differences in 
the control of exploitation and regulatory mechanisms between the 
United States and Mexico and the other countries in the Atlantic were 
also identified as a factor that could influence the conservation 
status of Atlantic populations and provided support for the separation 
of the NW Atlantic & GOM DPS from the Central & SW Atlantic DPS. For 
example, the United States has implemented its own strict regulations 
aimed at controlling the exploitation of scalloped hammerhead sharks in 
the northwest Atlantic and Gulf of Mexico in an effort to rebuild the 
population (78 FR 40317; July 3, 2013). Mexico has also prohibited 
shark finning in its EEZ and recently banned shark fishing from May 1 
to June 30 in the Gulf of Mexico. Based on the above information and 
that which was discussed in further detail in the DPS analysis, the 
boundary lines for the NW Atlantic & GOM DPS specifically around the 
Gulf of Mexico and Caribbean Sea were chosen to coincide with the U.S. 
and Mexico EEZ borders. The northern boundary line was based on the 
known geographic range of the species (Compagno, 1984; Baum et al., 
2007; Bester, 2011), and the eastern boundary line was chosen as a mid-
point of the Atlantic Ocean to separate the Eastern from the Western 
Atlantic Ocean. Although scalloped hammerhead sharks are coastal 
species and would not likely be encountered in this open ocean area 
(near the Eastern/Western Atlantic boundary line), we wanted to ensure 
that all waters within the scalloped hammerhead range were included 
within the range of a DPS.
    (2) Central & SW Atlantic DPS--Bounded to the north by 28[deg] N. 
lat., to the east by 30[deg] W. long., and to the south by 36[deg] S. 
lat. All waters of the Caribbean Sea are within this DPS boundary, 
including the Bahamas' EEZ off the coast of Florida, the U.S. EEZ off 
Puerto Rico and the U.S. Virgin Islands, and Cuba's EEZ.
    Explanation: Although the U.S. regulations extend to the U.S. EEZ 
in the Caribbean (i.e., surrounding U.S. territories) and to U.S. 
fishermen fishing on the high seas in the Caribbean Sea, the vast 
majority of the Caribbean Sea nations, as well as nations farther 
south, lack regulatory measures controlling the exploitation of 
scalloped hammerhead sharks. Additionally, the Central & SW Atlantic 
DPS was identified as being discrete from other DPSs as a consequence 
of genetic, behavioral, and physical factors (78 FR 20718). As such, 
the boundary lines were drawn to incorporate all waters of the 
Caribbean Sea, including the U.S. EEZ surrounding the U.S. territories 
in the Caribbean, and the South Atlantic. The southern boundary line 
was based on the known geographic range of the species (Compagno, 1984; 
Baum et al., 2007; Bester, 2011), and the eastern boundary line was 
chosen as a mid-point of the Atlantic Ocean to separate the Eastern 
from the Western Atlantic Ocean.
    (3) Eastern Atlantic DPS--Bounded to the west by 30[deg] W. long., 
to the north by 40[deg] N. lat., to the south by 36[deg] S. lat., and 
to the east by 20[deg] E. long., but includes all waters of the 
Mediterranean Sea.
    Explanation: The Eastern Atlantic population of scalloped 
hammerhead sharks was identified as being discrete from other DPSs as a 
consequence of genetic, behavioral, and physical factors (78 FR 20718). 
In addition, scalloped hammerhead sharks have recently been observed 
around southern Italy (Sperone et al., 2012) within the Mediterranean 
Sea. Therefore, based on geography, genetics, and behavioral 
information, the Eastern Atlantic DPS boundary includes those scalloped 
hammerhead sharks found within the Eastern Atlantic and the 
Mediterranean Sea. The northern and southern boundary lines were based 
on the known geographic range of the species (Compagno, 1984; Baum et 
al., 2007; Bester, 2011) and the western boundary line was chosen as a 
mid-point of the Atlantic Ocean to separate the Eastern from the 
Western Atlantic Ocean. The eastern boundary line shows the division 
between the Eastern Atlantic DPS and those scalloped hammerhead sharks 
in the Indian Ocean, as supported by available genetic information 
(Daly-Engel et al., 2012).
    (4) Indo-West Pacific DPS--Bounded to the south by 36[deg] S. lat., 
to the west by 20[deg] E. long., and to the north by 40[deg] N. lat. In 
the east, the boundary line extends from 175[deg] E. long. due south to 
10[deg] N. lat., then due east along 10[deg] N. lat. to 150[deg] W. 
long., then due south to 4[deg] S. lat., then due east along 4[deg] S. 
lat. to 130[deg] W. long, and then extends due south along 130[deg] W. 
long.
    Explanation: The Indo-West Pacific population of scalloped 
hammerhead sharks was identified as being discrete from other DPSs as a 
consequence of genetic, behavioral, and physical factors, as well as 
differences in the control of exploitation of the species across 
international boundaries (78 FR 20718). The southern and northern 
boundary lines are based on the known geographic range of the species 
(Compagno, 1984; Baum et al., 2007; Bester, 2011), and the western 
boundary provides the separation from the Eastern Atlantic DPS as 
supported by available genetic information (Daly-Engel et al., 2012). 
In the east, the boundaries that form the lines south of 10[deg] N lat. 
coincide with the WCPFC convention area boundaries within the Eastern 
Pacific. As differences in S. lewini exploitation coinciding with 
international boundary lines were cited as support for the DPS 
delineation (78 FR 20718), we determined that the most effective way to 
conserve the DPS was to delineate it by relevant RFMO boundary lines. 
The remaining boundary lines are drawn based on the boundaries of the 
Central Pacific DPS delineation in order to encompass all open ocean 
areas (and, hence, extending to the border of the Central Pacific DPS 
boundary line).
    (5) Central Pacific DPS--Bounded to the north by 40[deg] N lat., to 
the east by 140[deg] W. long., to the south by 10[deg] N. lat., and to 
the west by 175[deg] E. long.
    Explanation: The Central Pacific population of scalloped hammerhead 
sharks was identified as being discrete from other DPSs as a 
consequence of physical factors (bathymetric barriers), behavioral 
factors (unlikely to make long-distance oceanic migrations but rather 
disperses along continuous coastlines, continental margins, and 
submarine features), and genetic differences (which support separating 
this population from the neighboring Eastern Pacific and Atlantic 
DPSs). In addition, the Central Pacific was identified as having many 
management controls in place that protect important scalloped 
hammerhead habitats and nursery grounds, as well as adequately enforced 
fishing regulations that control the exploitation of the species and 
provide conservation benefits to the species which are lacking in 
neighboring DPSs. For example, the fisheries of the Hawaiian Islands 
are managed by both Federal law, such as the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), and State of Hawaii marine 
conservation law. Currently, there are

[[Page 38228]]

no directed shark fisheries in Hawaii; however, scalloped hammerhead 
sharks are sometimes caught as bycatch on Hawaiian longline gear. The 
Hawaii pelagic longline (PLL) fishery, which operates mainly in the 
Northern Central Pacific Ocean, is managed through a Fishery Ecosystem 
Plan (FEP) developed by the Western Pacific Regional Fishery Management 
Council (WPFMC) and approved by NMFS under the authority of the MSA. In 
an effort to reduce bycatch in this fishery, a number of gear 
regulations and fishery management measures have been implemented. A 
recently implemented False Killer Whale Take Reduction Plan (77 FR 
71260; November 29, 2012) under the Marine Mammal Protection Act has 
also established a permanent longline prohibited area ranging from 50-
75 nautical miles (93-139 km) around the Main Hawaiian Islands. In 
addition, mandatory fishery observers have been monitoring both sectors 
(shallow and deep) of the limited-entry Hawaii-based PLL fishery since 
1994, with observer coverage increasing in recent years to provide a 
more comprehensive bycatch dataset. Shark finning has also been banned 
since 2000 for the Hawaii-based longline fishery. Although these 
significant and effectively enforced fishery management measures in the 
Central Pacific (and the lack thereof in neighboring DPSs) were 
identified as support for the discreteness of this DPS, we relied 
mainly on the biological and physical factors that separated this DPS 
from other DPSs when delineating the boundary lines of the DPS.
    The northern boundary line of Central Pacific DPS is based on the 
known geographic range of the species (Compagno, 1984; Baum et al., 
2007; Bester, 2011). The southern boundary line was chosen based on 
bathymetric barriers and distance to the neighboring PRIAs. Between 
Johnston Atoll and the nearest PRIA (Kingman reef), the distance is 
approximately 1,350 to 1,400 km. Although scalloped hammerhead sharks 
have the ability to travel long distances (1,941 km, Bessudo et al., 
2011; 1,671 km, Kohler and Turner, 2001; Hearn et al., 2010), it is 
important to note that these migrations occur along continental margins 
or coastlines or between islands with similar oceanographic conditions. 
This species has been known to disperse into pelagic waters off 
seamounts and islands, usually for limited durations (at night; Klimley 
and Nelson 1984; Hearn et al., 2010; Bessudo et al., 2011) and 
distances (<10 km; Klimley and Nelson 1984; Hearn et al., 2010). The 
assumption is that they are foraging in the open waters at night and 
returning to the seamounts during the day, with evidence of seasonal 
site residence and fidelity. A study conducted in a nursery ground in 
Hawaii revealed that sharks travelled as far as 5.1 km in the same day, 
but the mean distance between capture points was only 1.6 km (Duncan 
and Holland, 2006). Another tagging study in Hawaii indicates that 
adult males remain ``coastal'' within the archipelago (Holland personal 
communication, 2012). There is currently no tagging evidence of adult 
scalloped hammerhead sharks that would suggest they traverse long 
distances (>1000 km) over deep open water. As such, the southern 
boundary line at 10[deg] N. lat. represents the separation of the 
Central Pacific DPS from the Indo-West Pacific DPS as a result of 
bathymetric and distance barriers. The western boundary line was 
delineated based on the deep water barrier adjacent to the 
Papah[amacr]naumoku[amacr]kea Marine National Monument to the northwest 
of the range of the Central Pacific DPS in order to separate these 
islands from the neighboring Indo-West Pacific islands and their 
respective EEZs. The eastern boundary line captures the eastern extent 
of the U.S. EEZ of the Hawaiian Archipelago and falls within the 
longitudinal area regarded as the Eastern Pacific Barrier (EPB), a deep 
water barrier to routine passage by this species and many insular 
species, based on their zoogeographic patterns (Baums et al., 2012). As 
the scalloped hammerhead is unlikely to cross this deep EPB, as 
supported by the genetic and behavioral data (78 FR 20718), it was 
determined that the boundary line between the Eastern Pacific DPS and 
Central Pacific DPS should be approximately the midpoint of this 
geophysical barrier.
    (6) Eastern Pacific DPS--bounded to the north by 40[deg] N lat. and 
to the south by 36[deg] S lat. The western boundary line extends from 
140[deg] W. long. due south to 10[deg] N., then due west along 10[deg] 
N. lat. to 150[deg] W. long., then due south to 4[deg] S. lat., then 
due east along 4[deg] S. lat. to 130[deg] W. long, and then extends due 
south along 130[deg] W. long.
    Explanation: The Eastern Pacific population of scalloped hammerhead 
sharks was identified as being discrete from other DPSs as a 
consequence of genetic, behavioral, and physical factors as well as 
differences in the control of exploitation of the species across 
international boundary lines (78 FR 20718). The northern and southern 
boundary lines are based on the known geographic range of the species 
(Compagno, 1984; Baum et al., 2007; Bester, 2011). The northern section 
of the western boundary provides the geophysical separation from the 
Central Pacific DPS and the rest of the boundary line coincides with 
the WCPFC convention area boundaries within the Eastern Pacific. As 
differences in S. lewini exploitation coinciding with international 
boundary lines were cited as support for the DPS delineation (78 FR 
20718), we determined that the most effective way to conserve the DPS 
was to delineate it by relevant RFMO boundary lines.

[[Page 38229]]

[GRAPHIC] [TIFF OMITTED] TR03JY14.010

Summary of Factors Affecting the Four DPSs of Scalloped Hammerhead 
Sharks

    The ESA defines an endangered species as one that is ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
a threatened species as one that is ``likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range'' (Sections 3 (6) and (20) of the ESA). Section 
4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424) 
state that we must determine whether a species is endangered or 
threatened because of any one or a combination of the following 
factors: the present or threatened destruction, modification, or 
curtailment of its habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; inadequacy of existing regulatory mechanisms; or other 
natural or man-made factors affecting its continued existence. We are 
to make this determination based solely on the best available 
scientific and commercial information after conducting a review of the 
status of the species and taking into account any efforts being made by 
states or foreign governments to protect the species.
    The Proposed Rule to list the Central & SW Atlantic DPS, Eastern 
Atlantic DPS, Indo-West Pacific DPS, and the Eastern Pacific DPS (78 FR 
20718) and the Status Review Report (Miller et al., 2014) provide 
detailed discussion of the status and threats to each DPS. As described 
in the Proposed Rule, the primary factors responsible for the decline 
of these four DPSs are overutilization, due to both catch and bycatch 
of these sharks in fisheries, and inadequate regulatory mechanisms for 
protecting these sharks, with illegal fishing identified as a 
significant problem. We conducted a comprehensive assessment of the 
combined impact of the five ESA section 4(a)(1) factors throughout the 
range of each DPS to determine extinction risk of each DPS. We focused 
on evaluating whether the DPSs are presently in danger of extinction, 
or whether the danger of extinction is likely to develop in the future. 
In our Proposed Rule and this final rule to list these four DPSs, we 
determined that the Eastern Atlantic and Eastern Pacific DPSs are 
currently in danger of extinction and that the Central & SW Atlantic 
and Indo-West Pacific DPSs are likely to become so in the foreseeable 
future. The next section briefly summarizes our findings regarding 
threats to these DPSs of scalloped hammerhead sharks, including any new 
information that was received during the public comment period. More 
details can be found in the Status Review Report and the Proposed Rule 
(78 FR 20718).

The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    We did not find evidence to suggest that habitat destruction, 
modification, or curtailment was presently contributing significantly 
to any of the DPS's risks of extinction. Because the scalloped 
hammerhead range is mainly comprised of open ocean environments 
occurring over broad geographic ranges, large-scale impacts such as 
global climate change that affect ocean temperatures, currents, and 
potentially food chain dynamics, are most likely to pose the greatest 
threat to this species. However, we did not find evidence of any large-
scale impacts affecting habitat

[[Page 38230]]

conditions that are currently significant threats to the species. 
Additionally, the scalloped hammerhead shark is highly mobile within 
the range of its DPS (Kohler and Turner, 2001; Duncan and Holland, 
2006, Maguire et al., 2006; Bessudo et al., 2011; Diemer et al., 2011), 
and there is no evidence to suggest its access to essential habitat is 
restricted within the ranges of any of the DPSs. It also does not 
participate in natal homing, which would essentially restrict the 
species to a specific nursery ground, but rather has been found 
utilizing artificially enlarged estuaries as nursery habitats located 
100 to 600 km from established nursery grounds (Duncan et al., 2006). 
Also, based on a comparison of S. lewini distribution maps from 1984 
(Compagno, 1984) and 2012 (Bester, n.d.), and current reports of 
scalloped hammerhead shark catches in FAO fishing areas, there is no 
evidence to suggest a range contraction for any DPS based on habitat 
degradation. Overall, using the best available information, there is no 
evidence to suggest there exists a present or threatened destruction, 
modification, or curtailment of the scalloped hammerhead shark's 
habitat or range and we conclude that it is unlikely that this factor 
is contributing on its own or in combination with other factors to the 
extinction risk of any of the four DPSs.

Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes

    We identified overutilization for commercial and/or recreational 
purposes as a significant threat contributing to the extinction risk of 
the four scalloped hammerhead shark DPSs. Scalloped hammerhead sharks 
are targeted by industrial, commercial, artisanal and recreational 
fisheries, and caught as bycatch in many other fisheries, including 
pelagic longline tuna and swordfish, gill net, and purse seine 
fisheries. Below, we briefly summarize our findings regarding 
overutilization for each of the four DPSs.
    The threat of overutilization by industrial/commercial fisheries 
was identified as a high risk and overutilization by artisanal 
fisheries as a moderate risk to the extinction of the Central & SW 
Atlantic DPS. Brazil, the country that reports one of the highest 
scalloped hammerhead landings in South America, maintains heavy 
industrial fishing of this species off its coastal waters. In the late 
1990s, Amorim et al. (1998) remarked that heavy fishing by longliners 
led to a decrease in this population. According to the FAO global 
capture production database, Brazil reported a significant increase in 
catch of S. lewini during this period, from 30 mt in 1999 to 508 mt by 
2002, before decreasing to a low of 87 mt in 2009. Similar decreases in 
landings were also reported by the State of Santa Catarina in Brazil. 
Based on new information not previously discussed in the Proposed Rule, 
in 1989, landings of the hammerhead complex (mainly S. lewini and S. 
zygaena) totaled 6.7 mt, but then increased to a peak of 570 mt in 1994 
as a result of the development of net fishing (CITES, 2013). From 1995 
to 2007, landings varied but never recovered to the levels of 1994, and 
in 2008, landings dropped to 44 mt (CITES, 2013).
    Documented heavy inshore fishing has also led to significant 
declines of adult female S. lewini abundance (up to 90 percent) (CITES, 
2010) as well as targeted fishing of and reported decreases in juvenile 
and neonate scalloped hammerhead populations (Vooren et al., 2005; 
Kotas et al., 2008). Information from surface longline and bottom 
gillnet fisheries targeting hammerhead sharks off southern Brazil 
indicates declines of more than 80 percent in CPUE from 2000 to 2008, 
with the targeted hammerhead fishery abandoned after 2008 due to the 
rarity of the species (FAO, 2010).
    S. lewini is also commonly landed by artisanal fishers in the 
Central and Southwest Atlantic, with concentrated fishing effort in 
nearshore and inshore waters, areas likely to be used as nursery 
grounds. Specific catch and landings data are unavailable from the 
Caribbean; however, S. lewini is often a target of artisanal fisheries 
off Trinidad and Tobago, eastern Venezuela, and Guyana, and anecdotal 
reports of declines in abundance, size, and distribution shifts of 
sharks suggest significant fishing pressure on overall shark 
populations in this region (Kyne et al., 2012). Additionally, Chapman 
et al. (2009) recently linked S. lewini fins from Hong Kong fin traders 
to the Central American Caribbean region, suggesting the lucrative fin 
trade may partially be driving the artisanal and commercial fishing of 
this DPS. Farther south, in Brazil, artisanal fisheries make up about 
50 percent of the fishing sector, with many fishers focusing their 
efforts inshore on schools of hammerheads. Between 1993 and 2001, adult 
female S. lewini abundance in Brazil decreased by 60-90 percent due to 
this inshore fishing pressure (CITES, 2010). In 2004, Brazil recognized 
this threat of S. lewini overutilization in its waters and subsequently 
added the species to its list of over-exploited species (Normative 
Instruction MMA n[deg] 05); however, this listing does not carry with 
it any prohibitions on fishing for the species. The best available 
information indicates that overutilization of this DPS has resulted in, 
and continues to contribute to, declines in abundance of this DPS. As 
abundance decreases, the DPS becomes more vulnerable to risk of 
extinction due to environmental variation, anthropogenic perturbations, 
and depensatory processes. The ERA team concluded, and we agree, that 
this DPS' current trends and level of abundance due to overutilization 
of the DPS are contributing significantly to its risk of extinction.
    The threat of overutilization by industrial/commercial and 
artisanal fisheries was identified as a high risk to the extinction of 
the Indo-West Pacific DPS. High levels of commercial fishing that 
target sharks or catch them as bycatch occur in this DPS. 
Unfortunately, few studies on the specific abundance of S. lewini have 
been conducted on this DPS, making it difficult to determine the rate 
of exploitation of this species. One study, off the coast of Oman, 
found S. lewini to be among the most commonly encountered species in 
commercial landings from 2002 to 2003 (Henderson et al., 2007). 
However, in 2003, S. lewini experienced a notable decline in relative 
abundance and, along with other large pelagic sharks, was displaced by 
smaller elasmobranch species (a trend also reported by informal 
interviews with fishermen) (Henderson et al., 2007). Off East Lombok, 
in Indonesia, data provided to the FAO also suggest potential declines 
in the population as the proportion of scalloped hammerhead sharks in 
the Tanjung Luar artisanal shark longline fishery catch decreased from 
15 percent to 2 percent over the period of 2001 to 2011 (FAO, 2013).
    In contrast, and based on new information not previously discussed 
in the Proposed Rule, records from Cohin Fisheries Harbor in India 
suggest an increase in the catch of S. lewini from 2007 to 2011, with 
the sharks constituting around 12.2 percent of the total shark landings 
at Cochin (CITES, 2013). However, during this same period, the minimum 
size of the sharks decreased from 1.1 m to 0.7 m, possibly indicating 
evidence of size truncation and overexploitation (CITES, 2013). 
Similarly, in Chinese Taipei, the median weight of S. lewini has 
significantly decreased over the past 20 years, based on new data from 
Huang (2013) (Joung et al., 2013) that was received after publication 
of the Proposed Rule. The

[[Page 38231]]

removal of these larger, and hence, likely mature animals decreases the 
productivity of the population, particularly for slow-growing, late-
maturing, and long-lived species such as the scalloped hammerhead 
shark. Additionally, CPUE data from South Africa and Australia shark 
control programs indicate significant declines (over 90 percent) of 
local scalloped hammerhead populations in this DPS, most likely a 
result from overharvesting, although it should be noted that these 
shark control programs were also assessed to have at least a medium 
causative impact on these localized depletions. Specifically, declines 
of 99 percent, 86 percent, and 64 percent have been estimated for S. 
lewini from catch rates in shark nets deployed off the beaches of South 
Africa from 1952-1972, 1961-1972, and 1978-2003, respectively (Dudley 
and Simpfendorfer, 2006; Ferretti et al., 2010). Estimates of the 
decline in Australian hammerhead abundance range from 58-85 percent 
(Heupel and McAuley 2007; CITES, 2010). CPUE data from the northern 
Australian shark fishery indicate declines of 58-76 percent in 
hammerhead abundance in Australia's northwest marine region from 1996-
2005 (Heupel and McAuley, 2007). From 1973 to 2008, the number of 
hammerheads caught per year in NSW beach nets decreased by more than 90 
percent, from over 300 individuals to fewer than 30 (Reid and Krogh, 
1992; Williamson, 2011). Similarly, data from the Queensland shark 
control program indicate declines of around 82 percent in hammerhead 
shark abundance between 1985 and 2012, with S. lewini abundance 
fluctuating over the years but showing a recent and steady decline 
since 2004 (QLD DEEDI, 2013). Between 2004 and 2012, the number of S. 
lewini sharks caught in the Queensland shark control program nets 
decreased by 80 percent (QLD DEEDI, 2013).
    In other waters of this DPS, shark populations are presumed to be 
fully to over-exploited (de Young, 2006), with evidence of significant 
landings by longline and artisanal fisheries and declines in scalloped 
hammerhead shark catch. For example, Papua New Guinea, which currently 
has an active domestic shark longline fishery, reported a 43 percent 
decrease in its hammerhead catch over the course of 1 year (from 2011 
to 2012). For many of the artisanal fisheries in this region, the 
lucrative shark fin trade is the driving force behind exploitation of 
scalloped hammerhead sharks. For example, in northern Madagascar, 
Robinson and Sauer (2011) documented an artisanal fishery that targets 
sharks primarily for their fins and discards the carcasses. Two shark 
families comprised the majority of the artisanal landings: 
Carcharhinidae accounted for 69 percent of the species and Sphyrnidae 
accounted for 24 percent (Robinson and Sauer, 2011). S. lewini was the 
most common species in the Sphyrnidae landings, with over 96 percent of 
the catch comprised of immature individuals (Robinson and Sauer, 2011). 
Similarly, the shark fisheries operating in Antongil Bay in 
northeastern Madagascar commonly land only fins, rather than whole 
sharks, with the scalloped hammerhead shark as the most represented 
species in the shark fishery (Doukakis et al., 2011). Both adults, 
including pregnant females, and juveniles are harvested in the small 
and large-mesh artisanal gillnet and traditional beach seine fisheries, 
suggesting largely unregulated and targeted fishing of scalloped 
hammerhead sharks in a potential breeding ground (Doukakis et al., 
2011). Furthermore, four of the top five exporters of shark fins to 
Hong Kong (Singapore, Taiwan, Indonesia, and the United Arab Emirates) 
are located in this DPS' range, and in 2008 accounted for around 34 
percent (or 3,384 mt) of the total exports of shark fins (both frozen 
and dried). The best available information indicates that 
overutilization of this DPS has resulted in, and continues to 
contribute to, declines in abundance of this DPS. Decreases in the size 
of the sharks over time likely indicate an overexploited population and 
portends declines in the per capita growth rate of the population. 
Over-harvesting of sharks in breeding grounds is likely to affect 
recruitment success to this DPS. Overall, the ERA team concluded, and 
we agree, that overutilization is significantly increasing this DPS' 
risk of extinction by contributing to the continued decline in current 
abundance and placing the DPS on a path where it is more vulnerable to 
risk of extinction due to environmental variation, anthropogenic 
perturbations, and depensatory processes.
    The threat of overutilization by industrial/commercial fisheries 
was identified as a high risk and overutilization by artisanal 
fisheries as a moderate risk to the extinction of the Eastern Atlantic 
DPS. Although species-specific data are unavailable from this region, 
hammerheads are a large component of the bycatch in the European 
pelagic freezer-trawler fishery that operates off Mauritania. Between 
2001 and 2005, 42 percent of the retained pelagic megafauna bycatch 
from over 1,400 freezer-trawl sets consisted of hammerhead species (S. 
lewini, S. zygaena, and S. mokarran). Of concern, especially as it 
relates to abundance and recruitment to the population, is the fact 
that around 75 percent of the hammerhead catch were juveniles of 0.50-
1.40 m in length (Zeeberg et al., 2006). In addition to the industrial 
fisheries, scalloped hammerhead sharks are targeted by many of the 
artisanal fisheries operating off West Africa. According to Diop and 
Dossa (2011), shark fishing has occurred in the Sub Regional Fisheries 
Commission (SRFC) member countries (Cape-Verde, Gambia, Guinea, Guinea-
Bissau, Mauritania, Senegal, and Sierra Leone) for around 30 years. 
However, since 2005, there has been a significant and ongoing decrease 
in shark landings, with an observed extirpation of some species, and a 
scarcity of others, such as large hammerhead sharks (Diop and Dossa, 
2011), indicating overutilization of the resource. In Mauritania, many 
of the artisanal fisheries have been documented fishing great 
quantities of juvenile scalloped hammerhead sharks using driftnets and 
fixed gillnets (CITES, 2010), with S. lewini also caught in large 
numbers in the sciaenid fishery operating in this region. In 2010, the 
first year that it provided capture production statistics to FAO, 
Mauritania reported a total catch of 257 mt of S. lewini, the highest 
amount reported by any one country since 2003. According to data 
provided to the FAO, S. lewini abundance off the coast of Mauritania 
has declined by 95 percent since 1999, with evidence of a decrease in 
average size of the shark since 2006 (FAO, 2013). From 2006 to 2009, 
CPUE of S. lewini declined from a peak of 55.0 kg/day at sea to 26.2 
kg/day at sea (Dia et al., 2012). Similarly, scientific research survey 
data, collected from 1982-2010, also show a sharp drop in yields, 
especially since 2005, and in 2010, virtually no Sphyrna sp (S. lewini 
and S. zygaena) were caught during the survey (Dia et al., 2012). Given 
the evidence of significant declines in abundance, to the point where 
S. lewini is rarely observed, it is likely that the current DPS levels 
of abundance and density place it at a risk of extinction due to 
depensatory processes (where abundance may be insufficient to support 
reproductive processes). As such, any additional mortality on this DPS 
may be devastating, and given the largely unregulated catch of the 
species off West Africa but steady demand and fishing pressure on 
marine resources for food and livelihood in this region (Diop

[[Page 38232]]

and Dossa, 2011), we conclude that historical and current 
overutilization of this DPS is contributing significantly to its risk 
of extinction.
    The threat of overutilization by industrial/commercial fisheries 
and artisanal fisheries was identified as a high risk to the extinction 
of the Eastern Pacific DPS. Although abundance data are lacking in this 
area, information from commercial and artisanal fisheries suggests 
heavy exploitation of this DPS. For example, in Mexico, S. lewini was 
and continues to be a popular fished species in artisanal fisheries. 
Historically, artisanal fishermen routinely caught them on the southern 
coast of Sinaloa (P[eacute]rez-Jim[eacute]nez et al., 2005; Bizzarro et 
al., 2009), and they comprised over 50 percent of the elasmobranch 
catch and 43 percent of the total recorded catch in the late 1990s 
(Bizzarro et al., 2009). From 2004 to 2005, S. lewini comprised 64 
percent of the artisanal shark catch south of Oaxaca, Mexico (CITES, 
2012). In the Gulf of Tehuantepec, scalloped hammerhead sharks 
constitute the second most important shark species targeted by Mexican 
fishers, comprising around 29 percent of the total shark catch from 
this region (INP, 2006). In fact, from 1996 to 2003, a total of 10,919 
individual scalloped hammerhead sharks were landed from this area and 
brought to port in the Mexican state of Chiapas (INP, 2006), where S. 
lewini and C. falciformis represent 89.3 percent of the shark catch 
(CITES, 2012). However, it is estimated that the scalloped hammerhead 
population is currently decreasing by 6 percent per year, and from 
1996-2001, CPUE of S. lewini in the Gulf of Tehuantepac declined to 
nearly zero (INP, 2006).
    In Costa Rica, shark catches reported by the artisanal and longline 
fisheries declined by approximately 50 percent after reaching a maximum 
of 5,000 mt in 2000 (SINAC, 2012). According to the Costa Rican 
Institute of Fishing and Aquaculture, the estimated total catch of S. 
lewini by the coastal artisanal and longline fleet from 2004-2007 was 
823 mt, which represented 3 percent of the national Costa Rican total 
catch of sharks for these years (SINAC, 2012). In Ecuador, sharks are 
mainly caught as incidental catch in a variety of fishing gear, 
including pelagic and bottom longlines, and drift and set gill nets, 
with scalloped hammerhead sharks used primarily for the fin trade. In 
2004, total combined landings from ten of Ecuador's main small-scale 
fishing ports were approximately 149 mt. In 2005, this number decreased 
by about 67 percent to 49 mt, but subsequently increased in the 
following years to reach a peak of 327 mt in 2008. In 2009, landings 
decreased again by around 71 percent, but tripled the following year to 
reach approximately 304 mt of hammerhead sharks in 2010 (INP, 2010).
    Of major concern is that many of the artisanal fishers from the 
Eastern Pacific region are targeting schools of juvenile and immature 
S. lewini due to the profitability of the younger shark meat (Arriatti, 
2011), and likely negatively affecting recruitment to this DPS. In 
Colombia, around 73.7 percent of the S. lewini individuals caught in 
artisanal fisheries are juveniles < 200 cm TL (CITES 2013). In Panama, 
directed artisanal fishing for hammerheads has been documented in 
coastal nursery areas, with artisanal gillnet fishery catches dominated 
by neonate and juvenile S. lewini (Arriatti, 2011). Likewise, in Costa 
Rica, many of the identified nursery grounds for scalloped hammerhead 
sharks are also popular elasmobranch fishing grounds and are heavily 
fished by gillnets (Zanella et al., 2009). In ``Tres Marias'' Islands 
and Isabel Island in the Central Mexican Pacific, Perez-Jimenez et al. 
(2005) found artisanal fishery catches dominated by immature 
individuals. Out of 1,178 females and 1,331 males caught from 1995-1996 
and 2000-2001, less than 1 percent were mature (Perez-Jimenez et al., 
2005). On the coast of Chiapas in Mexico, neonates (<= 60cm TL) 
comprised over 40 percent of the Port of Madero catch from 1996-2003 
(INP, 2006). Seasonal surveys conducted in Sinaloa, Mexico from 1998-
1999 depict an active artisanal fishery that primarily targets early 
life stages of S. lewini, with only four specimens (out of 1,515) 
measuring > 200 cm stretched TL (Bizzarro et al., 2009). A comparison 
of landing sizes from this region between 1998-1999 and 2007-2008 
revealed a significant decrease in S. lewini size, indicating a 
possible truncation of the size of the local population (Bizzarro et 
al., 2009). In Michoac[aacute]n, hammerheads represent 70 percent of 
the catch, with fishing effort concentrated in breeding areas and 
directed towards juveniles and pregnant females (CITES, 2012) and 
reports of the artisanal fishermen filleting the embryos of S. lewini 
for domestic consumption (Smith et al., 2009).
    Given the species' low productivity, slow growth rate, and late 
maturity, this substantial removal of recruits from the population is 
causing, and will continue to cause, a decline in the DPS abundance. 
For example, based on new information not previously discussed in the 
Proposed Rule, between 1995 and 2004, a shrimp trawling fishery 
operating in the Colombian Pacific noted a significant decrease in its 
bycatch of S. lewini juveniles, with no reports of the species in 2007 
(CITES, 2013). Overall, the data suggest the heavy fishing pressure on 
scalloped hammerhead sharks by artisanal fisheries, especially in 
nursery areas where substantial takes of juveniles and neonates, and 
possibly pregnant females, have been recorded, and subsequent catch and 
population declines can be characterized as overutilization that is 
significantly increasing the species' risk of extinction.

Competition, Disease, and Predation

    We did not find evidence to suggest that competition, disease, or 
predation was presently contributing significantly to any of the DPSs' 
risks of extinction, nor was it likely to put any of the DPSs at risk 
of extinction in the future. Scalloped hammerhead sharks are apex 
predators and opportunistic feeders, with a diet composed of a wide 
variety of items, including teleosts, cephalopods, crustaceans, and 
rays (Compagno, 1984; Bush, 2003; J[uacute]nior et al., 2009; Noriega 
et al., 2011). Although there may be some prey species that have 
experienced population declines, no information exists to indicate that 
depressed populations of these prey species are negatively affecting 
the scalloped hammerhead shark abundance. In addition, predation is not 
thought to be a major threat to scalloped hammerhead abundance numbers. 
In terms of disease, these sharks likely carry a range of parasites, 
such as external leeches (Stilarobdella macrotheca) and copepods 
(Alebion carchariae, A. elegans, Nesippus crypturus, Kroyerina 
scotterum); however, the sharks have often been observed visiting 
parasite cleaning stations (Bester, n.d.) and no data exist to suggest 
these parasites are affecting S. lewini abundance.

The Inadequacy of Existing Regulatory Mechanisms

    We identified the inadequacy of existing regulatory mechanisms as a 
significant threat contributing to the extinction risk of the four 
scalloped hammerhead shark DPSs. Existing regulatory mechanisms may 
include Federal, state, and international regulations. Below we briefly 
summarize our findings regarding our evaluation of current and relevant 
domestic and international management measures that affect these four 
scalloped hammerhead shark DPSs. More information on these domestic and 
international management measures can

[[Page 38233]]

be found in the Status Review Report and Proposed Rule (78 FR 20718).
    For the Central & SW Atlantic DPS, we identified the inadequacy of 
current regulatory mechanisms as a moderate risk, with illegal fishing 
significantly contributing to the DPS' risk of extinction. Many foreign 
commercial and artisanal fisheries operate within the range of this 
DPS, with little to no regulatory oversight, and thus regulatory 
mechanisms are likely inadequate to reduce the significant threat of 
overutilization to the scalloped hammerhead shark population. For 
example, artisanal gillnet fisheries, known for their substantial 
bycatch problems, are still active in Central America, with many 
allowed to operate in inshore nursery areas. Due in large part to the 
number of sovereign states found in this region, the management of 
shark species in Central America and the Caribbean remains largely 
disjointed, with some countries lacking basic fisheries regulations 
(Kyne et al., 2012). Other countries lack the capabilities to enforce 
what has already been implemented. For example, in May 2012, the 
Honduran navy seized hundreds of shark fins from fishers operating 
illegally within the borders of its shark sanctuary. As Kyne et al. 
(2012) reports, it is basically common practice to move shark fins 
across borders for sale in countries where enforcement is essentially 
lacking in this region. In South America, Brazil has banned finning, 
but continues to find evidence of illegal fishing in its waters. In 
Bel[eacute]m in May 2012, the Brazilian Institute of Environmental and 
Renewable Natural Resources (IBAMA) seized around 7.7 mt of illegally 
obtained dried shark fins intended for export to China (Nickel, 2012). 
A few months later, IBAMA confiscated more than 5 mt of illegal shark 
fins in Rio Grande do Norte (Rocha de Medeiros, 2012), suggesting 
current regulations and enforcement are not adequate to deter or 
prevent illegal shark finning. In fact, it is estimated that illegal 
fishing constitutes 32 percent of the Southwest Atlantic region's catch 
(based on estimates of illegal and unreported catch averaged over the 
years of 2000 to 2003; Agnew et al., 2009).
    In addition, heavy industrial fishing off the coast of Brazil, with 
the use of drift gillnets and longlines, remains largely unregulated, 
as does the intensive artisanal fishery, which accounts for about 50 
percent of the fishing sector. Brazil currently has regulations 
limiting the extension of pelagic gillnets and prohibiting trawls in 
waters less than 3 nautical miles (5.6 km) from the coast; however, as 
is the case with many regulations affecting this DPS, inadequate 
enforcement of these laws has led to continued fishing in these inshore 
nursery areas and resultant observed declines in both adult and 
juvenile scalloped hammerhead shark abundance (Amorim et al., 1998; 
Kotas, 2008; CITES, 2010). Given the information above, the ERA team 
ranked both illegal fishing and the inadequacy of current regulatory 
mechanisms as moderate risks. We agree that these factors, in 
combination with others (such as overutilization and low species 
productivity), likely contribute significantly to the Central & SW 
Atlantic DPS' risk of extinction.
    For the Indo-West Pacific DPS, we identified the inadequacy of 
current regulatory mechanisms as a moderate risk, with illegal fishing 
significantly contributing to the DPS' risk of extinction. Multiple 
RFMOs cover the Indo-West Pacific DPS area with requirements of full 
utilization of any retained catches of sharks and regulations that 
onboard fins cannot weigh more than 5 percent of the weight of the 
sharks. These regulations are aimed at curbing the practice of shark 
finning, but do not prohibit the fishing of sharks. In addition, these 
regulations may not even be effective in stopping finning of scalloped 
hammerhead sharks, as a recent study found the scalloped hammerhead 
shark to have an average wet-fin-to-round-mass ratio of only 2.13 
percent (n=81; Biery and Pauly, 2012). This ratio suggests that fishing 
vessels operating in these RFMO convention areas would be able to land 
more scalloped hammerhead shark fins than bodies and still pass 
inspection. There are no scalloped hammerhead-specific RFMO management 
measures in place for this region, even though this DPS is heavily 
fished. Consequently, this species has seen population declines off the 
coasts of South Africa and Australia, so much so that in 2012, New 
South Wales, Australia, listed it as an endangered species.
    Few countries within this DPS' range have regulations aimed at 
controlling the exploitation of shark species. Oman, Seychelles, 
Australia, South Africa, Taiwan, and most recently India all have 
measures to prevent the waste of shark parts and discourage finning. 
The Maldives have designated their waters as a shark sanctuary. A 
number of Pacific Island countries (including U.S. territories) have 
also created shark sanctuaries, prohibited shark fishing, or have 
strong management measures to control the exploitation of sharks in 
their respective waters, including Tokelau, Palau, Marshall Islands, 
American Samoa, CNMI, Cook Islands, and French Polynesia, although 
effective enforcement of these regulations is an issue for some of the 
countries. Additionally, many of the top shark fishing nations and 
world's exporters of fins are also located within the range of this 
DPS, and have little to no regulation (or enforcement) of their 
expansive shark fisheries. For example, off northern Madagascar, where 
there is an active artisanal fin fishery, sharks are an open access 
resource, with no restrictions on gear, established quotas, or fishing 
area closures (Robinson and Sauer, 2011). Indonesia, which is the top 
shark fishing nation in the world, does not currently have restrictions 
pertaining to shark fishing or finning. Indonesian small-scale 
fisheries, which account for around 90 percent of the total fisheries 
production, are not required to have fishing permits (Varkey et al., 
2010), nor are their vessels likely to have insulated fish holds or 
refrigeration units (Tull, 2009), increasing the incentive for shark 
finning by this sector (Lack and Sant, 2012). Ultimately, their fishing 
activities remain largely unreported (Varkey et al., 2010), which 
suggests that the estimates of Indonesian shark catches are greatly 
underestimated. In fact, in Raja Ampat, an archipelago in Eastern 
Indonesia, Varkey et al. (2010) estimated that 44 percent of the total 
shark catch in 2006 was unreported (including small-scale and 
commercial fisheries' unreported catch and illegal, unregulated, and 
unreported (IUU) fishing). Although Indonesia adopted an FAO 
recommended shark conservation plan (National Plan of Action--Shark) in 
2010, due to budget constraints, it can only focus its implementation 
of key conservation actions in one area, East Lombok (Satria et al., 
2011). Due to this historical and current absence of shark management 
measures, especially in the small-scale fisheries sector, many of the 
larger shark species in Indonesian waters have already been severely 
overfished (Field et al., 2009).
    In addition to the largely unregulated fishing of this DPS, illegal 
fishing, especially for shark fins, has been identified as a 
significant contributor to the extinction risk of this DPS. Scalloped 
hammerhead sharks are valued for their large fins, which fetch a high 
commercial value in the Asian shark fin trade (Abercrombie et al., 
2005) and comprise the second most traded fin category in the Hong Kong 
market (Clarke et al., 2006). Due to this profit incentive, there have 
been many reports of finning and seizures of illegally gained shark 
fins throughout the range of this DPS, including in

[[Page 38234]]

waters of Australia (Field et al., 2009), Mozambique, South Africa, Bay 
of Bengal, Arabian Gulf, Palau, the Federated States of Micronesia 
(FSM) (Paul, 2009), and Somalia (HSTF, 2006). Agnew et al. (2009) 
provided regional estimates of illegal fishing (using FAO fishing areas 
as regions) and found the Western Central Pacific (Area 71) and Eastern 
Indian Ocean (Area 57) regions to have relatively high levels of 
illegal fishing (compared to the rest of the regions), with illegal and 
unreported catch constituting 34 and 32 percent of the region's catch, 
respectively.
    Although the number of shark management and conservation measures 
for this DPS is on the rise, the ERA team noted that the current 
protections that they afford the Indo-West Pacific DPS may be minimal 
if illegal fishing is not controlled. We agree and conclude that the 
inadequacy of current regulatory mechanisms, in the form of ineffective 
enforcement of current regulations or lack of existing regulatory 
measures, in combination with illegal fishing, is contributing 
significantly to the risk of extinction of this DPS.
    For the Eastern Atlantic DPS, we identified the inadequacy of 
current regulatory mechanisms as a moderate risk, with illegal fishing 
significantly contributing to the DPS' risk of extinction. Although 
regulations in Europe appear to be moving towards the sustainable use 
and conservation of shark species, these strict and enforceable 
regulations do not extend farther south in the Eastern Atlantic, where 
the majority of scalloped hammerhead sharks are caught. Some western 
African countries have attempted to impose restrictions on shark 
fishing; however, these regulations have exceptions, loopholes, or poor 
enforcement. For example, Mauritania has created a 6,000 km\2\ coastal 
sanctuary for sharks and rays, prohibiting targeted shark fishing in 
this region; however, sharks, such as the scalloped hammerhead, may be 
caught as bycatch in nets. Many other countries, such as Namibia, 
Guinea, Cape-Verde, Sierra Leone, Nigeria, and Gambia, have shark 
finning bans, but even with this regulation, scalloped hammerhead 
sharks are caught with little to no restrictions on harvest numbers. 
According to Diop and Dossa (2011), fishing in the SRFC region now 
occurs year-round, including during shark breeding season, and, as 
such, both pregnant and juvenile sharks may be fished, with shark fins 
from fetuses included on balance sheets at landing areas. Many of these 
state-level management measures also lack standardization at the 
regional level (Diop and Dossa, 2011), which weakens some of their 
effectiveness. For example, Sierra Leone and Guinea both require shark 
fishing licenses; however, these licenses are much cheaper in Sierra 
Leone, and as a result, fishers from Guinea fish for sharks in Sierra 
Leone (Diop and Dossa, 2011). Also, although many of these countries 
have recently adopted FAO recommended National Plan of Action--Sharks, 
their shark fishery management plans are still in the early 
implementation phase, and with few resources for monitoring and 
managing shark fisheries, the benefits to sharks from these regulatory 
mechanisms (such as reducing the threat of overutilization) have yet to 
be realized (Diop and Dossa, 2011). In addition, reports of illegal 
fishing are prevalent in the waters off West Africa and account for 
around 37 percent of the region's catch, the highest regional estimate 
of illegal fishing worldwide (Agnew et al., 2009; EJF, 2012). The 
available data suggest that illegal fishing is a serious and rampant 
problem in West African waters, and with lack of enforcement of 
existing regulations and weak management of the fisheries in this area, 
as evidenced by the observed substantial and largely unregulated 
catches of both adult and juvenile hammerheads by artisanal fishers in 
this region, we agree with the ERA team's findings and conclude that 
the combination of both the inadequacy of existing regulatory measures 
and illegal fishing are contributing significantly to the risk of 
extinction of this DPS.
    For the Eastern Pacific DPS, we identified the inadequacy of 
current regulatory mechanisms as a moderate risk, with illegal fishing 
significantly contributing to the DPS' risk of extinction. Similar to 
the RFMO regulations for the Indo-West Pacific DPS, the RFMO that 
covers the Eastern Pacific DPS area, the Inter-American Tropical Tuna 
Commission (IATTC), requires the full utilization of any retained 
catches of sharks, with a regulation that onboard fins cannot weigh 
more than 5 percent of the weight of the sharks. However, in 2013, we 
published a report to Congress that identified nations that engaged in 
IUU fishing, based on violations of international conservation and 
management measures during 2011 and/or 2012, and identified three 
Colombian, one Ecuadorian, one Panamanian, and two Venezuelan-flagged 
vessels that violated IATTC resolutions and illegally finned sharks, 
discarding the carcasses at sea (NMFS, 2013).
    Shark finning and discarding the corresponding carcass at sea is 
also illegal in Colombia, Costa Rica, and El Salvador. Panama requires 
industrial fishers to land sharks with fins naturally attached, but 
artisanal fishers may separate the fins from the carcass, as long as 
they satisfy the 5 percent weight rule. Although the purpose of these 
regulations is to help deter finning, they do not protect sharks from 
overfishing. In addition, many of the other current regulatory 
mechanisms found in Central American countries in the Eastern Pacific 
may not adequately protect scalloped hammerhead sharks from 
overutilization. For example, although Ecuador has banned directed 
fishing for sharks in its waters, sharks caught in ``continental'' 
(i.e., not Galapagos) fisheries may be landed if bycaught. Panama still 
allows directed artisanal gillnet fishing for juvenile and adult 
sharks, including S. lewini (Arriatti, 2011), as does the Mexican State 
of Sinaloa, where the most popular gears in the elasmobranch fishery 
are bottom set gillnets and longlines (Bizzarro et al., 2009). Bottom 
fixed gillnets are also allowed in the artisanal fishery around ``Tres 
Marias'' Island and Isabel Island in the Central Mexican Pacific, with 
bycatch dominated by juvenile S. lewini (Perez-Jimenez et al., 2005). 
Although Mexico is working towards promoting a sustainable shark and 
ray fishery, the current legislation (NOM-029-PESCA-2006) allows 
artisanal fishers to target hammerheads with longlines within 10 nm 
from the shore. However, given the artisanal fleets' already 
substantial fishing effort on sharks (artisanal vessels contribute 40 
percent of the marine domestic production and comprise up to 80 percent 
of the elasmobranch fishing effort; Cartamil et al., 2011), this 
increase in fishing opportunity may further threaten the Eastern 
Pacific DPS, especially since 62 percent of the total Mexican domestic 
shark production comes from the Pacific Ocean (NOM-029-PESCA-2006). In 
addition, many of the new regulations are not well understood by 
current Mexican fishers, with very few fishers found to be in 
compliance with them (Cartamil et al., 2011). Recently, Mexico issued 
regulations prohibiting shark fishing in its Pacific Ocean waters, from 
May 1 to July 31 (DOF, 2012).
    More restrictive regulations, such as complete moratoriums on shark 
fishing, can be found within this DPS' range around Honduras and in the 
Eastern Tropical Pacific Seascape. However, there is evidence of 
illegal fishing by both local fishers and industrial longliners within 
these marine protected areas. For example, in Cocos Island National 
Park, off Costa Rica, a ``no take'' zone was established in 1992,

[[Page 38235]]

yet between 2004 and 2009, 1,512 km of illegal longlines, 48,552 hooks, 
and 459 hooked sharks were documented in the park (Friedlander et al., 
2012). Populations of S. lewini declined in this protected area by an 
estimated 71 percent from 1992 to 2004 (Myers et al., nd). Data 
collected by dive masters since 1992 place the decline in hammerhead 
abundance at more than 11 fold from peak relative abundance numbers in 
the park (Friedlander et al., 2012).
    From 1998-2004, Jacquet et al. (2008) found Ecuadorian shark fin 
exports exceeded mainland catches by 44 percent (average of 3,850 mt 
per year), and suggested that this discrepancy may have been a result 
of illegal fishing on protected Galapagos sharks. New information that 
we received since publication of the Proposed Rule shows a decline in 
the relative abundance of S. lewini from 2003 to 2011 around the 
Malpelo Wildlife Sanctuary, off Colombia; however, the decrease was not 
strongly negative (Soler et al., 2013). From 2004 to 2011, Soler et al. 
(2013) reported estimates of relative abundance ranging from 30 
(hammerheads/dive) to 17 (hammerheads/dive) and suggested the decrease 
in hammerhead abundance was likely due to overfishing and poaching in 
the surrounding waters. Evidence of such poaching occurred in November 
2011, when Colombian environmental authorities reported a large shark 
massacre in this wildlife sanctuary. The divers counted 10 illegal 
Costa Rican trawler boats in the wildlife sanctuary and estimated that 
as many as 2,000 scalloped hammerhead, Gal[aacute]pagos and silky 
sharks may have been killed for their fins (Brodzinsky, 2011).
    Although shark finning is discouraged in the waters of this DPS, 
the ERA team voiced concerns about the allowed use of fishing gear that 
is especially effective at catching schools of scalloped hammerhead 
sharks within inshore and nursery areas in this DPS' range. Thus, the 
ERA team ranked the threat of inadequate current regulatory mechanisms 
as a moderate risk. Additionally, without stronger enforcement, 
especially in the marine protected areas in the Eastern Tropical 
Pacific, the known ``hot spots'' of scalloped hammerhead aggregations, 
the inadequacy of existing regulatory mechanisms will continue to 
enable the substantial illegal fishing, which we concluded is a threat 
contributing significantly to this DPS' risk of extinction.

Other Natural or Man-Made Factors Affecting Its Continued Existence

    We also identified other natural factors, such as the species' high 
at-vessel fishing mortality and schooling behavior, as contributing to 
the risk of extinction for each DPS when combined with other threats 
such as overutilization and illegal fishing. Scalloped hammerhead 
sharks are obligate ram ventilators (they must keep moving to ensure a 
constant supply of oxygenated water) and suffer very high at-vessel 
fishing mortality in bottom longline fisheries (Morgan and Burgess, 
2007; Macbeth et al., 2009) and in beach net programs (Reid and Krogh, 
1992; Dudley and Simpfendorfer, 2006). Their schooling behavior also 
increases the shark's likelihood of being caught in large numbers. For 
example, fishers in Costa Rica were documented using gillnets in 
shallow waters to target schools of juveniles and neonates in these 
nursery areas (Zanella et al., 2009). In Brazil, schools of neonates 
and juveniles are caught in large numbers by coastal gillnets and 
recreational fishers in inshore waters, and consequently their 
abundance has significantly decreased over time (CITES, 2010). Off 
South Africa, Dudley and Simpfendorfer (2006) reported significant 
catches of newborn S. lewini by prawn trawlers, with estimates of 3,288 
sharks in 1989 and 1,742 sharks in 1992.
    This schooling behavior also makes the species a popular target for 
illegal fishing activity, with fishers looking to catch large numbers 
of scalloped hammerhead sharks (both adult and juveniles) quickly and 
with relatively little effort. In the Malpelo Wildlife Sanctuary, 
divers had reported sightings of schools of more than 200 hammerhead 
sharks before the sanctuary became a recent target of illegal fishing 
(Brodzinsky, 2011). Because this schooling behavior provides greater 
access to large numbers of scalloped hammerhead sharks, the likelihood 
of this species being overfished greatly increases. Given the species' 
low fecundity, slow growth rate, and late maturity, it would likely 
take decades for a given DPS to recover from large removals of 
individuals. In the interim, the DPS would be exposed to demographic 
risks that could lead to population collapse and possible extinction. 
Thus, we identified the species' high at-vessel mortality and schooling 
behavior as factors that work in combination with others, such as 
current abundance and trends, heavy fishing pressure and 
overutilization, inadequate regulatory mechanisms, and illegal fishing, 
to significantly increase the four DPSs' risks of extinction.

Efforts Being Made To Protect the Four DPSs

    Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to 
take into account ``. . . efforts, if any, being made by any State or 
foreign nation, or any political subdivision of a State or foreign 
nation, to protect such species, whether by predator control, 
protection of habitat and food supply, or other conservation practices, 
within any area under its jurisdiction or on the high seas.'' The ESA 
therefore directs us to consider all conservation efforts being made to 
conserve the species. The joint USFWS and NMFS Policy on Evaluation of 
Conservation Efforts When Making Listing Decisions (``PECE Policy,'' 68 
FR 15100; March 28, 2003) further identifies criteria we use to 
determine whether formalized conservation efforts that have yet to be 
implemented or to show effectiveness contribute to making listing 
unnecessary, or to listing a species as threatened rather than 
endangered. In determining whether a formalized conservation effort 
contributes to a basis for not listing a species, or for listing a 
species as threatened rather than endangered, we must evaluate whether 
the conservation effort improves the status of the species under the 
ESA. Two factors are key in that evaluation: (1) For those efforts yet 
to be implemented, the certainty that the conservation effort will be 
implemented, and (2) for those efforts that have not yet demonstrated 
effectiveness, the certainty that the conservation effort will be 
effective. The following is a brief review of the major conservation 
efforts and an evaluation of whether these efforts are reducing or 
eliminating threats by having a positive conservation benefit and thus 
improving the status of the scalloped hammerhead shark DPSs.
    We identified the increasing number of shark fin bans as one 
potential effort to conserve the DPSs. The concern regarding the 
practice of finning and its effect on global shark populations has been 
growing both domestically and internationally. The push to stop shark 
finning and curb the trade of shark fins is evident overseas and most 
surprisingly in Asian countries, where the demand for shark fin soup is 
highest. Just recently, China prohibited shark fins at all official 
reception dinners (Ng, 2013). However, as many of these bans have just 
recently been implemented, their effect on reducing the threat of S. 
lewini overutilization and illegal fishing is unknown.

[[Page 38236]]

    We also identified the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES) listings as another 
potential effort to conserve the DPSs. Since publication of the 
Proposed Rule, member nations of CITES, referred to as ``Parties,'' 
voted in support of listing three species of hammerhead sharks 
(scalloped, smooth, and great) in Appendix II--an action that means 
increased protection, but still allows legal and sustainable trade. In 
addition, S. lewini was submitted for inclusion on CITES Appendix III 
by Costa Rica. These CITES listings will go into effect on September 
14, 2014. At that time, export of their fins will require CITES permits 
that ensure the products were legally acquired and that the Scientific 
Authority of the State of export has advised that such export will not 
be detrimental to the survival of that species. The countries of Guyana 
and Yemen have entered reservations, which means that they are not 
bound by CITES requirements when trading in these species with 
countries not a party to CITES. Japan has also taken a reservation but 
has stated that it will comply voluntarily with the CITES requirements 
for export permits. Canada has also entered reservations but this is 
temporary until they are able to implement domestic regulations.
    Although these CITES listings will likely work towards creating 
sustainable international trade in S. lewini products in the future, 
their effect on reducing current threats to the point where an ESA 
listing may be unnecessary or downgraded for any of the DPSs is 
uncertain. As the CITES listings will only apply to international 
trade, it is unclear if this effort will effectively reduce the threats 
of overutilization by artisanal fisheries for domestic consumption, or 
if these CITES listings will help promote stronger domestic regulatory 
and conservation measures or curb illegal fishing for these four DPSs.
    We support all conservation efforts currently in effect and those 
that are planned for the near future, as mentioned above. However, we 
cannot say with a high level of certainty that the conservation efforts 
will be effective as required by the PECE policy (68 FR 15100, 28 March 
2003). Therefore, we have determined that these efforts will not likely 
alter the extinction risk of the four DPSs.

Final Listing Determination

    Section 4(b)(1) of the ESA requires that NMFS make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account those efforts, if any, being made by any state or 
foreign nation, or political subdivisions thereof, to protect and 
conserve the species. We have reviewed the best available scientific 
and commercial information including the petition, the Status Review 
Report, peer review comments, public comments, and other available 
published and unpublished information, and we have consulted with 
species experts and individuals familiar with scalloped hammerhead 
sharks.
    For the reasons stated above, and as summarized here, we conclude 
that: (1) Scalloped hammerhead sharks in the Central & SW Atlantic, 
Eastern Atlantic, Indo-West Pacific, and Eastern Pacific meet the 
discreteness and significance criteria for DPSs; (2) the Eastern 
Atlantic and Eastern Pacific scalloped hammerhead shark DPSs are in 
danger of extinction throughout their ranges; and (3) the Central & SW 
Atlantic and Indo-West Pacific scalloped hammerhead shark DPSs are 
likely to become endangered throughout their ranges in the foreseeable 
future.
    The scalloped hammerhead shark population segment occurring in the 
Central & SW Atlantic is discrete from other population segments and 
significant to the scalloped hammerhead species based on the following: 
(1) Genetic differences between this population and those scalloped 
hammerhead sharks inhabiting waters of the Pacific, Indian, and eastern 
Atlantic oceans; (2) tagging studies that suggest limited distance 
migrations along coastlines, continental margins, and submarine 
features with no observed mixing between the Central & SW Atlantic 
population and the NW Atlantic & GOM population, supporting the 
conclusion of isolation from other populations; (3) fishery management 
measures that are lacking for this DPS compared to NW Atlantic & GOM 
DPS (with the exception of U.S. EEZ Caribbean), with significant 
differences in control of S. lewini exploitation and regulatory 
mechanisms across these international boundaries; and (4) evidence that 
a loss of this segment would result in a significant gap in the range 
of the taxon (from Caribbean to Uruguay), with oceanographic conditions 
that would act as barriers to re-colonization, and tagging and genetic 
studies that suggest the segment would unlikely be rapidly repopulated 
through immigration.
    The scalloped hammerhead shark population segment occurring in the 
Eastern Atlantic is discrete from other population segments and 
significant to the scalloped hammerhead species based on the following: 
(1) Genetic differences between this population and those scalloped 
hammerhead sharks inhabiting waters of the Pacific, Indian, and western 
Atlantic oceans; (2) tagging studies that suggest limited distance 
migrations along coastlines, continental margins, and submarine 
features, with genetic studies that show migration around the southern 
tip of Africa is rare (i.e., no mixing with those sharks found in the 
Indian Ocean), supporting the conclusion of isolation from other 
populations; and (3) evidence that loss of this segment would result in 
a significant gap in the range of the taxon (from Mediterranean Sea to 
Namibia), with oceanographic conditions that would act as barriers to 
re-colonization, and tagging and genetic studies that suggest the 
segment would unlikely be rapidly repopulated through immigration.
    The scalloped hammerhead shark population segment occurring in the 
Indo-West Pacific is discrete from other population segments and 
significant to the scalloped hammerhead species based on the following: 
(1) Genetic differences between this population and those scalloped 
hammerhead sharks inhabiting waters of the Eastern Pacific and Atlantic 
oceans; (2) tagging and genetic studies that show limited distance 
migrations and support isolation from other populations, but suggest 
males mix readily along coastlines and continental margins within the 
range of this DPS due to the high connectivity of habitat; (3) fishery 
management measures that are lacking for this DPS compared to those for 
the Central Pacific DPS, with significant differences in control of S. 
lewini exploitation and regulatory mechanisms across international 
boundaries; and (4) evidence that loss of this segment would result in 
a significant gap in the range of the taxon (from South Africa to Japan 
and south to Australia and New Caledonia and neighboring island 
countries), with oceanographic conditions that would act as barriers to 
re-colonization, and tagging and genetic studies that suggest the 
segment would unlikely be rapidly repopulated through immigration.
    The scalloped hammerhead shark population segment occurring in the 
Eastern Pacific is discrete from other population segments and 
significant to the scalloped hammerhead species based on the following: 
(1) Genetic differences between this population and those scalloped 
hammerhead sharks inhabiting waters of the Indo-West Pacific, Central 
Pacific, and Atlantic oceans; (2) tagging studies that suggest wide 
movements around islands and

[[Page 38237]]

occasional long-distance dispersals between neighboring islands with 
similar oceanographic conditions, but isolation from other DPSs by 
bathymetric barriers and oceanographic conditions, supporting the 
conclusion of isolation from other populations; and (3) evidence that 
loss of this segment would result in a significant gap in the range of 
the taxon (from southern CA, USA to Peru), with oceanographic 
conditions that would act as barriers to re-colonization, and tagging 
and genetic studies that suggest the segment would unlikely be rapidly 
repopulated through immigration.
    We have independently reviewed and evaluated the best available 
scientific and commercial information related to the status of each 
DPS, including the demographic risks and trends and the multiple 
threats related to the factors set forth in the ESA Section 4(a)(1)(A)-
(E). As explained in the Proposed Rule (see 78 FR 20718, discussion of 
Proposed Determinations), no portion of any DPS' range is considered 
significant and we therefore have determined that no DPS is threatened 
or endangered throughout a significant portion of its range. Our 
determinations set forth above and summarized below are thus based on 
the status of each DPS across its entire range. Based on our evaluation 
of the status of each DPS and the threats to its persistence we 
predicted the likelihood that each DPS is in danger of extinction 
throughout all of its range now and in the foreseeable future (which 
was defined as 50 years) (78 FR 20718). We considered each of the 
statutory factors to determine whether it presented an extinction risk 
to each DPS on its own. We also considered the combination of those 
factors to determine whether they collectively contributed to the 
extinction of each DPS. As required by the ESA, Section 4(b)(1)(a), we 
also took into account efforts to protect scalloped hammerhead sharks 
by states, foreign nations and others and evaluated whether those 
efforts provide a conservation benefit to each DPS and reduced threats 
to the extent that a DPS did not warrant listing or could be listed as 
threatened rather than endangered. Our conclusions and final listing 
determinations are based on a synthesis and integration of the 
foregoing information, factors and considerations.
    Below are the summaries of our final listing determinations:
    We have determined that the Central & SW Atlantic DPS of the 
scalloped hammerhead shark is not presently in danger of extinction, 
but is likely to become so in the foreseeable future throughout all of 
its range. Factors supporting a conclusion that this DPS is not 
presently in danger of extinction include: (1) Low productivity rates 
but moderate rebound potential to pelagic longline fisheries common 
within the range of this DPS; (2) ICCAT recommendations slated for 
implementation (or already implemented) by Contracting Parties that 
offer protection for this species from ICCAT fishing vessels; (3) 
regulations that limit the extension of pelagic gillnets and trawls, 
shark fin bans, and prohibitions on shark fishing or the retention of 
scalloped hammerhead sharks; and (4) evidence that sharks are still 
present in significant enough numbers to be caught by commercial and 
artisanal fisheries. Factors supporting a conclusion that the DPS is 
likely to become in danger of extinction in the foreseeable future 
include overutilization, inadequacy of existing regulatory mechanisms 
and other natural or manmade factors, specifically: (1) Decreasing 
catch trends suggesting population decline; (2) high susceptibility to 
overfishing, especially given its schooling behavior, with artisanal 
fisheries catching large numbers of juveniles in inshore and nursery 
areas, likely affecting future recruitment to the DPS; (3) high at-
vessel mortality rate associated with incidental capture in fisheries 
(resulting in further reduction of population productivity and 
abundance); (4) popularity of the species in the shark fin trade; and 
(5) limited regulatory mechanisms and/or weak enforcement in some 
areas, leading to illegal fishing of the species and contributing to 
the further decline of this DPS. Therefore, we are listing the Central 
& SW Atlantic DPS of the scalloped hammerhead shark as threatened under 
the ESA.
    We have determined that the Indo-West Pacific DPS of scalloped 
hammerhead sharks is not presently in danger of extinction, but is 
likely to become so in the foreseeable future throughout all of its 
range. Factors supporting a conclusion that this DPS is not presently 
in danger of extinction include: (1) Relatively high reported catches 
of the species off the coasts of South Africa and Queensland, 
Australia; (2) still observed throughout the entire range of this DPS 
with the overall population size uncertain given the expansive range of 
this DPS; and (3) current regulations that prevent the waste of shark 
parts and discourage finning in this region, with the number of shark 
sanctuaries on the rise in the Western Pacific. Factors supporting a 
conclusion that the DPS is likely to become in danger of extinction in 
the foreseeable future include overutilization, inadequacy of existing 
regulatory mechanisms and other natural or manmade factors, 
specifically: (1) Decreases in CPUE of sharks off the coasts of South 
Africa and Australia and in longline catch in Papua New Guinea and 
Indonesian waters, suggesting localized population declines, (2) high 
susceptibility to overfishing, especially given its schooling behavior, 
in artisanal fisheries and industrial/commercial fisheries; (3) high 
at-vessel mortality rate associated with incidental capture in 
fisheries (resulting in further reduction of population productivity 
and abundance); (4) popularity of the species in the shark fin trade; 
and (5) inadequate regulatory mechanisms and/or weak enforcement of 
current regulations in many areas, resulting in frequent reports of 
illegal fishing of the species and contributing to the further decline 
of this DPS. Therefore, we are listing the Indo-West Pacific DPS of the 
scalloped hammerhead shark as threatened under the ESA.
    We have determined that the Eastern Atlantic DPS of the scalloped 
hammerhead shark is currently in danger of extinction throughout all of 
its range. Factors supporting this conclusion include overutilization, 
inadequacy of existing regulatory mechanisms and other natural or 
manmade factors, specifically: (1) Reduced abundance and declining 
population trends and catch; (2) low productivity rates; (3) high 
susceptibility to overfishing, especially given its schooling behavior; 
(4) significant historical removals of scalloped hammerhead sharks by 
artisanal and industrial fisheries, with directed shark fisheries still 
in operation and heavy fishing pressure despite evidence of species' 
extirpations and declines of large hammerheads; (5) high at-vessel 
mortality rate associated with incidental capture in fisheries 
(resulting in further reduction of population productivity and 
abundance); (6) popularity of the species in the shark fin trade; and 
(7) inadequate regulatory mechanisms along the coast of West Africa, 
with severe enforcement issues leading to heavy illegal fishing. 
Therefore, we are listing the Eastern Atlantic DPS of the scalloped 
hammerhead shark as endangered under the ESA.
    We have determined that the Eastern Pacific DPS of the scalloped 
hammerhead shark is also currently in danger of extinction throughout 
all of its range. Factors supporting this conclusion include 
overutilization, inadequacy of existing regulatory mechanisms and other 
natural or

[[Page 38238]]

manmade factors, specifically: (1) Reduced abundance, declining 
population trends and catch, and evidence of size truncation; (2) low 
productivity rates; (3) high susceptibility to overfishing, especially 
given its schooling behavior, with artisanal fisheries targeting 
juveniles of the species in inshore and nursery areas; (4) high at-
vessel mortality rate associated with incidental capture in fisheries 
(resulting in further reduction of population productivity and 
abundance); (5) popularity of the species in the shark fin trade and 
importance in Mexican artisanal fisheries operating in the Pacific; and 
(6) limited regulatory mechanisms and weak enforcement in many areas, 
leading to illegal fishing of the species, especially in protected 
waters. Therefore, we are listing the Eastern Pacific DPS of the 
scalloped hammerhead shark as endangered under the ESA.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery plans and actions (16 U.S.C. 
1536(f)); concurrent designation of critical habitat if prudent and 
determinable (16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to 
consult with NMFS and to ensure its actions do not jeopardize the 
species or result in adverse modification or destruction of critical 
habitat should it be designated (16 U.S.C. 1536); and prohibitions on 
taking (16 U.S.C. 1538). Recognition of the species' plight through 
listing promotes conservation actions by Federal and state agencies, 
foreign entities, private groups, and individuals.

Identifying ESA Section 7 Consultation Requirements

    Section 7(a)(4) of the ESA requires Federal agencies to confer with 
us on actions likely to jeopardize the continued existence of species 
proposed for listing or result in the destruction or adverse 
modification of proposed critical habitat. Once a species is listed as 
threatened or endangered, section 7(a)(2) requires Federal agencies to 
ensure that any actions they fund, authorize, or carry out are not 
likely to jeopardize the continued existence of the species. Once 
critical habitat is designated, section 7(a)(2) also requires Federal 
agencies to ensure that they do not fund, authorize, or carry out any 
actions that are likely to destroy or adversely modify that habitat. 
Our section 7 regulations require the responsible Federal agency to 
initiate formal consultation if a Federal action may affect a listed 
species or its critical habitat (50 CFR 402.14(a)). Examples of Federal 
actions that may affect the scalloped hammerhead shark DPSs include: 
fishery harvest and management practices, military activities, 
alternative energy projects, dredging in known scalloped hammerhead 
nursery grounds, point and non-point source discharge of persistent 
contaminants in known nursery grounds, toxic waste and other pollutant 
disposal in known nursery grounds, and shoreline development in known 
nursery grounds.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species, and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species.
    Section 4(a)(3) of the ESA requires that, to the extent practicable 
and determinable, critical habitat be designated concurrently with the 
listing of a species. Designation of critical habitat must be based on 
the best scientific data available and must take into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat.
    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that we consider those physical or biological 
features that are essential to the conservation of a given species 
including ``space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distribution of a species.'' The regulations further 
direct NMFS to ``focus on the principal biological or physical 
constituent elements . . . that are essential to the conservation of 
the species,'' and specify that the ``Known primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify physical and biological features as including: 
``roost sites, nesting grounds, spawning sites, feeding sites, seasonal 
wetland or dry land, water quality or quantity, host species or plant 
pollinator, geological formation, vegetation type, tide, and specific 
soil types.''
    In our proposal to list the scalloped hammerhead shark DPSs (78 FR 
20718), we requested information on the identification of specific 
areas that meet the definition of critical habitat defined above for 
the Central & SW Atlantic DPS, Indo-West Pacific DPS, and Eastern 
Pacific DPS. These DPSs are the only DPSs that occur in U.S. waters or 
its territories. We also solicited biological and economic information 
relevant to making a critical habitat designation for each DPS. We have 
reviewed the comments provided and the best available scientific 
information. We conclude that critical habitat is not determinable at 
this time for the following reasons: (1) Sufficient information is not 
currently available to assess impacts of designation; and (2) 
sufficient information is not currently available regarding the 
physical and biological features essential to conservation.

ESA Section 9 Take Prohibitions

    Because we are listing the Eastern Pacific DPS and Eastern Atlantic 
DPS of scalloped hammerhead sharks as endangered, all of the take 
prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) will 
apply. These include prohibitions against importing, exporting, 
engaging in foreign or interstate commerce, or ``taking'' of the 
species. ``Take'' is defined under the ESA as ``to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt 
to engage in any such conduct.'' These prohibitions apply to all 
persons, organizations and entities subject to the jurisdiction of the 
United States, including in the United States and its territorial seas, 
or on the high seas.
    In the case of threatened species, ESA section 4(d) requires the 
Secretary to issue regulations deemed necessary and appropriate for the 
conservation of the species. We have evaluated the needs of and threats 
to the Central & SW Atlantic DPS and Indo-West Pacific DPS and have 
determined that protective regulations pursuant to section 4(d) are not 
currently necessary and appropriate for the conservation of either DPS. 
The main threats identified for these two DPSs are overutilization 
(high risk) and inadequate existing regulatory measures (especially 
illegal fishing) (moderate risk). The threat of overutilization is 
primarily a result of heavy fishing pressure by foreign industrial,

[[Page 38239]]

commercial and artisanal fisheries. Most of the commercial fishermen 
under U.S. jurisdiction who could catch the Central & SW Atlantic DPS 
are already prohibited from landing this DPS in the Atlantic Ocean, 
including the Caribbean Sea. Starting in 2011, Atlantic Highly 
Migratory Species (HMS) commercially-permitted vessels that have PLL 
gear on board and dealers buying from these vessels have been 
prohibited from retaining onboard, transshipping, landing, storing, 
selling, or offering for sale any part or whole carcass of hammerhead 
sharks of the family Sphyrnidae (except for the Sphyrna tiburo) (76 FR 
53652; August 29, 2011). HMS fishermen using other types of gear who 
fish for, retain, possess, sell, or intend to sell, scalloped 
hammerhead sharks need a Federal Atlantic Directed or Incidental shark 
limited access permit. These permits are administered under a limited 
access program and we are no longer issuing new shark permits. 
Additionally, HMS fishermen who have an HMS Commercial Caribbean Small 
Boat permit (which allows fishing for and sales of HMS species within 
the local U.S. Caribbean market) are currently prohibited from 
retaining Atlantic sharks and are restricted to fishing with only rod 
and reel, handline, and bandit gear under the permit (77 FR 59842; 
October 1, 2012).
    Recreational fishermen under U.S. jurisdiction are also prohibited 
from retaining hammerhead sharks in the Atlantic, including the 
Caribbean Sea, when tuna, swordfish or billfish are also retained (76 
FR 53652; August 29, 2011). When tuna, swordfish or billfish are not 
onboard, then recreational fishermen are only allowed to land one shark 
per trip (and if it is a scalloped hammerhead shark, then it must be a 
minimum size of 78 inches (6.5 feet; 198 cm) FL to ensure that 
primarily mature individuals are retained).
    In the western Pacific, scalloped hammerhead sharks are rarely 
caught or seen around the U.S. Pacific Island Territories. Both CNMI 
and Guam have banned the possession, sale, offer for sale, trade, and 
distribution of shark fins. Guam also explicitly prohibits the take, 
purchase, barter, transport, export, and import of shark fins. American 
Samoa prohibits the possession, delivery, or transportation of any 
shark species or shark body party. American Samoa also prohibits shark 
fishing within three nautical miles of its shore. A lthough there are 
no targeted shark fisheries in Guam, CNMI, or American Samoa, American 
Samoa does have a limited entry longline fishery that operates within 
the U.S. EEZ. However, this longline fishery is strictly managed and 
regulated (see Miller et al., 2014), with only eight scalloped 
hammerhead sharks observed caught in this fishery since 2006. There is 
currently no longline fishery operating in the CNMI, and Guam has had a 
50-100 nm longline exclusion zone in place since 1992. Guam also 
prohibits drift gillnets in its fisheries. In terms of the Hawaii 
longline fisheries, which operate in some areas of the Indo-West 
Pacific DPS range, there is very low interaction with scalloped 
hammerhead sharks. From 1994 to 2004, there were only 26 observed 
interactions in the deep-set longline fishery (HLA, 2013). From 2004 to 
the present, this number drops to three (HLA, 2013). Catch of scalloped 
hammerhead sharks by U.S. vessels in the WCPFC convention area is also 
very minimal (SPC, 2010; Miller et al. 2014). Overall, the significant 
and adequate management measures that are in place for fishermen under 
U.S. jurisdiction (including gear restrictions, permit and logbook 
requirements, quota monitoring, bycatch measures, vessel monitoring 
systems, and protected species workshop requirements), directly and 
indirectly contribute to the very rare interactions between U.S. 
fishing activities and the threatened DPSs. As such, we do not see 
these activities as contributing significantly to the identified 
threats of overutilization and inadequate regulatory measures. In 
addition, we do not find that prohibiting these activities would have a 
significant effect on the extinction risks of the threatened DPSs 
(considering the U.S. interaction with the DPSs is negligible and the 
DPS' risks of extinction are primarily a result of threats from foreign 
fishing activities).
    As mentioned previously, scalloped hammerhead sharks were included 
on Appendix II of CITES at the 16 Conference of the CITES Parties in 
March 2013, with the listing going into effect on September 14, 2014. 
At that time, export of their fins will require CITES permits that 
ensure the products were legally acquired and that the Scientific 
Authority of the State of export has advised that such export will not 
be detrimental to the survival of that species (after taking into 
account factors such as its population status and trends, distribution, 
harvest, and other biological and ecological elements). In other words, 
trade of these DPSs will have to be monitored to ensure that the 
species is maintained throughout its range at a level consistent with 
its role in the ecosystem, and does not reach the level whereby 
international trade would have to be prohibited to protect the species 
from extinction. Although this CITES protection was not considered to 
be an action that decreased the current listing status of the 
threatened DPSs (due to its uncertain effects at reducing the threats 
of foreign domestic overutilization and inadequate regulations) it does 
help address the threat of foreign overutilization for the 
international fin trade, ensuring that international trade of these 
threatened DPSs is sustainable. Because the United States does not have 
a significant presence in the international fin trade (U.S. exports and 
imports of all species of shark fins comprise less than one percent of 
the total number of fins globally exported and imported; see NMFS, 2012 
and FAO, 2014) we have concluded that restrictions on U.S. trade of 
these DPSs, in addition to the CITES requirements, are not necessary 
and appropriate for the conservation of these DPSs.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires us to identify, to the maximum extent practicable at the time 
a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within a species' range. We will 
identify, to the extent known, specific activities that will not be 
considered likely to result in violation of section 9, as well as 
activities that will be considered likely to result in violation.
    Based on the best available information, activities that we believe 
could result in violation of section 9 prohibitions against ``take'' of 
the Eastern Atlantic and Eastern Pacific DPSs include the following: 
(1) Importing fins or any part of a scalloped hammerhead shark; (2) 
exporting fins or any part of a scalloped hammerhead shark; (3) taking 
fins or any part of a scalloped hammerhead shark, including fishing 
for, capturing, handling, or possessing scalloped hammerhead sharks or 
fins; (4) selling fins or any part of a scalloped hammerhead shark; (5) 
delivery of fins or any part of a scalloped hammerhead shark; and (6) 
impacting the water column attributes in scalloped hammerhead nursery 
grounds (e.g., coastal development and habitat alterations, point and 
non-point source discharge of persistent contaminants, toxic waste and 
other pollutant disposal). We emphasize that whether a violation 
results from a particular activity is entirely dependent

[[Page 38240]]

upon the facts and circumstances of each incident. The mere fact that 
an activity may fall within one of these categories does not mean that 
the specific activity will cause a violation; due to such factors as 
location and scope, specific actions may not result in direct or 
indirect adverse effects on the species. Further, an activity not 
listed may in fact result in a violation.
    ESA sections 10(a)(1)(A) and (B) provide us with authority to grant 
exceptions to the ESA's section 9 ``take'' prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may be issued 
to entities (Federal and non-Federal) for scientific purposes or to 
enhance the propagation or survival of the species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets the Central 
& SW Atlantic DPS, Indo-West Pacific DPS, Eastern Atlantic DPS, or 
Eastern Pacific DPS.
    ESA Section 10(a)(1)(B) incidental take permits may be issued to 
non-Federal entities performing activities that may incidentally take 
listed species, as long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity.
    Based on the best available information, we believe the following 
actions will not result in a violation of ESA section 9: (1) Take or 
possession of scalloped hammerhead sharks acquired lawfully by permit 
issued by NMFS pursuant to section 10 of the ESA, or take in accordance 
with the terms of an incidental take statement in a biological opinion 
pursuant to section 7 of the ESA; and (2) Federally approved projects 
that involve activities such as managed fisheries or the alteration of 
water column attributes within known scalloped hammerhead nursery 
grounds for which consultation under section 7 of the ESA has been 
completed and determined not likely to jeopardize the continued 
existence of the scalloped hammerhead DPS, and when such activity is 
conducted in accordance with any terms and conditions given by NMFS in 
an incidental take statement in a biological opinion pursuant to 
section 7 of the ESA.

Policies on Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing a 
minimum peer review standard. Similarly, a joint NMFS/FWS policy (59 FR 
34270; July 1, 1994) requires us to solicit independent expert review 
from qualified specialists, concurrent with the public comment period. 
The intent of the peer review policies is to ensure that listings are 
based on the best scientific and commercial data available. We formally 
solicited the expert opinion of three appropriate and independent 
specialists regarding scientific or commercial data or assumptions 
related to the information considered for listing. We received comments 
from two of these scientists and their comments were incorporated into 
the status review report and this final rule. We conclude that these 
experts' reviews satisfy the requirements for ``adequate [prior] peer 
review'' contained in the Bulletin (sec. II.2.), as well as the 
Services' joint policy.

Information Solicited

    We request interested persons to submit relevant information 
related to the identification of critical habitat and essential 
physical or biological features, as well as economic or other relevant 
impacts of designation of critical habitat for the Central & SW 
Atlantic DPS, Indo-West Pacific DPS, and Eastern Pacific DPS. We 
solicit information from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party (see ADDRESSES).

References

    A complete list of all references cited herein is available upon 
request (see FOR FURTHER INFORMATION CONTACT).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (See NOAA Administrative Order 216-6).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statue). Neither of 
those circumstances is applicable to this final listing determination.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: June 27, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, amend the table in paragraph (e) by adding new 
entries for two species in alphabetical order under the ``Fishes'' 
table subheading to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) The threatened species under the jurisdiction of the Secretary 
of Commerce are:

[[Page 38241]]



----------------------------------------------------------------------------------------------------------------
                             Species \1\
---------------------------------------------------------------------  Citation(s) for    Critical
                                                   Description of          listing        habitat     ESA rules
         Common name           Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Fishes
 
                                                  * * * * * * *
Shark, scalloped hammerhead    Sphyrna lewini.  Scalloped hammerhead  [Insert FR page            NA           NA
 (Central & Southwest                            sharks originating    number where
 Atlantic DPS).                                  from the Central &    the document
                                                 Southwest Atlantic    begins], July
                                                 Ocean, including      3, 2014.
                                                 all waters of the
                                                 Caribbean Sea, the
                                                 Bahamas' EEZ off
                                                 the coast of
                                                 Florida, the U.S.
                                                 EEZ off Puerto Rico
                                                 and the U.S. Virgin
                                                 Islands, and Cuba's
                                                 EEZ, and further
                                                 delineated by the
                                                 following boundary
                                                 lines: bounded to
                                                 the north by
                                                 28[deg] N. lat., to
                                                 the east by 30[deg]
                                                 W. long., and to
                                                 the south by
                                                 36[deg] S. lat.
Shark, scalloped hammerhead    Sphyrna lewini.  Scalloped hammerhead  [Insert FR page            NA           NA
 (Indo-West Pacific DPS).                        sharks originating    number where
                                                 from the Indo-West    the document
                                                 Pacific Ocean,        begins], July
                                                 delineated by the     3, 2014.
                                                 following boundary
                                                 lines: bounded to
                                                 the south by
                                                 36[deg] S. lat., to
                                                 the west by 20[deg]
                                                 E. long., and to
                                                 the north by
                                                 40[deg] N. lat. In
                                                 the east, the
                                                 boundary line
                                                 extends from
                                                 175[deg] E. long.
                                                 due south to
                                                 10[deg] N. lat.,
                                                 then due east along
                                                 10[deg] N. lat. to
                                                 150[deg] W. long.,
                                                 then due south to
                                                 4[deg] S. lat.,
                                                 then due east along
                                                 4[deg] S. lat. to
                                                 130[deg] W. long,
                                                 and then extends
                                                 due south along
                                                 130[deg] W. long.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq. and 16 U.S.C. 1361 et seq.

0
4. In Sec.  224.101, amend the table in paragraph (h) by adding new 
entries for two species in alphabetical order under the ``Fishes'' 
table subheading to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) The endangered species under the jurisdiction of the Secretary 
of Commerce are:

----------------------------------------------------------------------------------------------------------------
                             Species \1\
---------------------------------------------------------------------  Citation(s) for    Critical
                                                   Description of          listing        habitat     ESA rules
         Common name           Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
           Fishes*
 
                                                  * * * * * * *
Shark, scalloped hammerhead    Sphyrna lewini.  Scalloped hammerhead  [Insert FR page            NA           NA
 (Eastern Atlantic DPS).                         sharks originating    number where
                                                 from the Eastern      the document
                                                 Atlantic Ocean,       begins], July
                                                 including all         3, 2014.
                                                 waters of the
                                                 Mediterranean Sea,
                                                 and delineated by
                                                 the following
                                                 boundary lines:
                                                 bounded to the west
                                                 by 30[deg] W.
                                                 long., to the north
                                                 by 40[deg] N. lat.,
                                                 to the south by
                                                 36[deg] S. lat.,
                                                 and to the east by
                                                 20[deg] E. long.

[[Page 38242]]

 
Shark, scalloped hammerhead    Sphyrna lewini.  Scalloped hammerhead  [Insert FR page            NA           NA
 (Eastern Pacific DPS).                          sharks originating    number where
                                                 from the Eastern      the document
                                                 Pacific Ocean,        begins], July
                                                 delineated by the     3, 2014.
                                                 following boundary
                                                 lines: bounded to
                                                 the north by
                                                 40[deg] N lat. and
                                                 to the south by
                                                 36[deg] S lat. The
                                                 western boundary
                                                 line extends from
                                                 140[deg] W. long.
                                                 due south to
                                                 10[deg] N., then
                                                 due west along
                                                 10[deg] N. lat. to
                                                 150[deg] W. long.,
                                                 then due south to
                                                 4[deg] S. lat.,
                                                 then due east along
                                                 4[deg] S. lat. to
                                                 130[deg] W. long,
                                                 and then extends
                                                 due south along
                                                 130[deg] W. long.
 
 
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\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

* * * * *
[FR Doc. 2014-15710 Filed 7-2-14; 8:45 am]
BILLING CODE 3510-22-P