81_FR_96554 81 FR 96304 - Endangered and Threatened Wildlife and Plants; Proposed Threatened Listing Determination for the Oceanic Whitetip Shark Under the Endangered Species Act (ESA)

81 FR 96304 - Endangered and Threatened Wildlife and Plants; Proposed Threatened Listing Determination for the Oceanic Whitetip Shark Under the Endangered Species Act (ESA)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 250 (December 29, 2016)

Page Range96304-96328
FR Document2016-31460

NMFS has completed a comprehensive status review under the Endangered Species Act (ESA) for the oceanic whitetip shark (Carcharhinus longimanus) in response to a petition from Defenders of Wildlife to list the species. Based on the best scientific and commercial information available, including the status review report (Young et al., 2016), and after taking into account efforts being made to protect the species, we have determined that the oceanic whitetip shark warrants listing as a threatened species. We conclude that the oceanic whitetip shark is likely to become endangered throughout all or a significant portion of its range within the foreseeable future. Any protective regulations determined to be necessary and advisable for the conservation of the species under ESA section 4(d) would be proposed in a subsequent Federal Register announcement. Should the proposed listing be finalized, we would also designate critical habitat for the species, to the maximum extent prudent and determinable. We solicit information to assist in this listing determination, the development of proposed protective regulations, and the designation of critical habitat in the event this proposed listing determination is finalized.

Federal Register, Volume 81 Issue 250 (Thursday, December 29, 2016)
[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Proposed Rules]
[Pages 96304-96328]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31460]



[[Page 96303]]

Vol. 81

Thursday,

No. 250

December 29, 2016

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 223





Endangered and Threatened Wildlife and Plants; Proposed Threatened 
Listing Determination for the Oceanic Whitetip Shark Under the 
Endangered Species Act (ESA); Proposed Rule

Federal Register / Vol. 81 , No. 250 / Thursday, December 29, 2016 / 
Proposed Rules

[[Page 96304]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 151110999-6999-02]
RIN 0648-XE314


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Listing Determination for the Oceanic Whitetip Shark Under 
the Endangered Species Act (ESA)

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has completed a comprehensive status review under the 
Endangered Species Act (ESA) for the oceanic whitetip shark 
(Carcharhinus longimanus) in response to a petition from Defenders of 
Wildlife to list the species. Based on the best scientific and 
commercial information available, including the status review report 
(Young et al., 2016), and after taking into account efforts being made 
to protect the species, we have determined that the oceanic whitetip 
shark warrants listing as a threatened species. We conclude that the 
oceanic whitetip shark is likely to become endangered throughout all or 
a significant portion of its range within the foreseeable future. Any 
protective regulations determined to be necessary and advisable for the 
conservation of the species under ESA section 4(d) would be proposed in 
a subsequent Federal Register announcement. Should the proposed listing 
be finalized, we would also designate critical habitat for the species, 
to the maximum extent prudent and determinable. We solicit information 
to assist in this listing determination, the development of proposed 
protective regulations, and the designation of critical habitat in the 
event this proposed listing determination is finalized.

DATES: Comments on this proposed rule must be received by March 29, 
2017. Public hearing requests must be requested by February 13, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0152, by either of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0152, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Chelsey Young, NMFS 
Office of Protected Resources (F/PR3), 1315 East West Highway, Silver 
Spring, MD 20910, USA. Attention: Oceanic whitetip proposed rule.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    You can find the petition, status review report, Federal Register 
notices, and the list of references electronically on our Web site at 
http://www.nmfs.noaa.gov/pr/species/fish/oceanic-whitetip-shark.html. 
You may also receive a copy by submitting a request to the Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910, Attention: Oceanic whitetip proposed rule.

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

SUPPLEMENTARY INFORMATION: 

Background

    On September 21, 2015, we received a petition from Defenders of 
Wildlife to list the oceanic whitetip shark (Carcharhinus longimanus) 
as threatened or endangered under the ESA throughout its entire range, 
or, as an alternative, to list two distinct population segments (DPSs) 
of the oceanic whitetip shark, as described in the petition, as 
threatened or endangered, and to designate critical habitat. We found 
that the petitioned action may be warranted for the species; on January 
12, 2016, we published a positive 90-day finding for the oceanic 
whitetip shark (81 FR 1376), announcing that the petition presented 
substantial scientific or commercial information indicating the 
petitioned action of listing the species may be warranted range wide, 
and explaining the basis for those findings. We also announced the 
initiation of a status review of the species, as required by section 
4(b)(3)(a) of the ESA, and requested information to inform the agency's 
decision on whether the species warranted listing as endangered or 
threatened under the ESA.

Listing Species Under the Endangered Species Act

    We are responsible for determining whether species 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.'' 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.
    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 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 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

[[Page 96305]]

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) for any conservation efforts that have not been implemented, or 
have been implemented but have not yet demonstrated effectiveness.

Status Review

    We convened a team of agency scientists to conduct the status 
review for the oceanic whitetip shark and prepare a report. The status 
review report of the oceanic whitetip shark (Young et al., 2016) 
compiles the best available information on the status of the species as 
required by the ESA and assesses the current and future extinction risk 
for the species, focusing primarily on threats related to the five 
statutory factors set forth above. We appointed a biologist in the 
Office of Protected Resources Endangered Species Conservation Division 
to undertake a scientific review of the life history and ecology, 
distribution, abundance, and threats to the oceanic whitetip shark. 
Next, we convened a team of biologists and shark experts (hereinafter 
referred to as the Extinction Risk Analysis (ERA) team) to conduct an 
extinction risk analysis for the species, using the information in the 
scientific review. The ERA team was comprised of a natural resource 
management specialist from NMFS Office of Protected Resources, a 
fishery management specialist from NMFS' Highly Migratory Species (HMS) 
Management Division, and four research fishery biologists from NMFS' 
Southeast, Northeast, Southwest, and Pacific Island Fisheries Science 
Centers. The ERA team had group expertise in shark biology and ecology, 
population dynamics, highly migratory species management, and stock 
assessment science. The status review report presents the ERA team's 
professional judgment of the extinction risk facing the oceanic 
whitetip shark but makes no recommendation as to the listing status of 
the species. The status review report is available electronically at 
http://www.nmfs.noaa.gov/pr/species/fish/oceanic-whitetip-shark.html.
    The status review report was subjected to independent peer review 
as required by the Office of Management and Budget Final Information 
Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The 
status review report was peer reviewed by five independent specialists 
selected from the academic and scientific community, with expertise in 
shark biology, conservation and management, and specific knowledge of 
oceanic whitetip sharks. The peer reviewers were asked to evaluate the 
adequacy, appropriateness, and application of data used in the status 
review as well as the findings made in the ``Assessment of Extinction 
Risk'' section of the report. All peer reviewer comments were addressed 
prior to finalizing the status review report.
    We subsequently reviewed the status review report, its cited 
references, and peer review comments, and believe the status review 
report, upon which this proposed rule is based, provides the best 
available scientific and commercial information on the oceanic whitetip 
shark. Much of the information discussed below on oceanic whitetip 
shark biology, distribution, abundance, threats, and extinction risk is 
attributable to the status review report. However, we have 
independently applied the statutory provisions of the ESA, including 
evaluation of the factors set forth in section 4(a)(1)(A)-(E), our 
regulations regarding listing determinations, and our DPS policy in 
making the 12-month finding determination.

Life History, Biology, and Status of the Petitioned Species

Taxonomy and Species Description

    The oceanic whitetip shark belongs to the family Carcharhinidae and 
is classified as a requiem shark (Order Carcharhiniformes). The oceanic 
whitetip belongs to the genus Carcharhinus, which includes other 
pelagic species of sharks, such as the silky shark (Carcharhinus 
falciformis) and dusky shark (C. obscuras), and is the only truly 
oceanic (i.e., pelagic) shark of its genus (Bonfil et al., 2008). The 
oceanic whitetip shark has a stocky build with a large rounded first 
dorsal fin and very long and wide paddle-like pectoral fins. The first 
dorsal fin is very wide with a rounded tip, originating just in front 
of the rear tips of the pectoral fins. The second dorsal fin originates 
over or slightly in front of the base of the anal fin. The species also 
exhibits a distinct color pattern of mottled white tips on its front 
dorsal, caudal, and pectoral fins with black tips on its anal fin and 
on the ventral surfaces of its pelvic fins. The head has a short and 
bluntly rounded nose and small circular eyes with nictitating 
membranes. The upper jaw contains broad, triangular serrated teeth, 
while the teeth in the lower jaw are more pointed and are only serrated 
near the tip. The body is grayish bronze to brown in color, but varies 
depending upon geographic location. The underside is whitish with a 
yellow tinge on some individuals (Compagno 1984).

Current Distribution

    The oceanic whitetip shark is distributed worldwide in epipelagic 
tropical and subtropical waters between 30[deg] North latitude and 
35[deg] South latitude (Baum et al., 2006). In the western Atlantic, 
oceanic whitetips occur from Maine to Argentina, including the 
Caribbean and Gulf of Mexico. In the central and eastern Atlantic, the 
species occurs from Madeira, Portugal south to the Gulf of Guinea, and 
possibly in the Mediterranean Sea. In the western Indian Ocean, the 
species occurs in waters of South Africa, Madagascar, Mozambique, 
Mauritius, Seychelles, India, and within the Red Sea. Oceanic whitetips 
also occur throughout the Western and Central Pacific Ocean, including 
China, Taiwan, the Philippines, New Caledonia, Australia (southern 
Australian coast), Hawaiian Islands south to Samoa Islands, Tahiti and 
Tuamotu Archipelago and west to the Galapagos Islands. Finally, in the 
eastern Pacific, the species occurs from southern California to Peru, 
including the Gulf of California and Clipperton Island (Compagno 1984).

Habitat Use and Movement

    The oceanic whitetip shark is a highly migratory species of shark 
that is usually found offshore in the open ocean, on the outer 
continental shelf, or around oceanic islands in deep water, occurring 
from the surface to at least 152 meters (m) depth. Although the oceanic 
whitetip can be found in decreasing numbers out to latitudes of 30[deg] 
N and 35[deg] S, with abundance decreasing with greater proximity to 
continental shelves, it has a clear preference for open ocean waters 
between 10[deg] S and 10[deg] N (Backus et al., 1956; Strasburg 1958; 
Compagno 1984; Bonfil et al., 2008). The species can be found in waters 
between 15 [deg]C and 28 [deg]C, but it exhibits a strong preference 
for the surface mixed layer in water with temperatures above 20 [deg]C, 
and is considered a surface-dwelling shark. It

[[Page 96306]]

is however, capable of tolerating colder waters down to 7.75 [deg]C for 
short periods as exhibited by brief, deep dives into the mesopelagic 
zone below the thermocline (>200 m), presumably for foraging (Howey-
Jordan et al., 2013; Howey et al., 2016). However, exposures to these 
cold temperatures are not sustained (Musyl et al., 2011; Tolotti et 
al., 2015a) and there is some evidence to suggest the species tends to 
withdraw from waters below 15 [deg]C (e.g., the Gulf of Mexico in 
winter; Compagno 1984).
    Little is known about the movement or possible migration paths of 
the oceanic whitetip shark. Although the species is considered highly 
migratory and capable of making long distance movements, tagging data 
provides evidence that this species also exhibits a high degree of 
philopatry (i.e., site fidelity) in some locations. To date, there have 
been three tagging studies conducted on oceanic whitetip sharks in the 
Atlantic. Mark recapture data (number tagged = 645 and recaptures = 8) 
from the NMFS Cooperative Shark Tagging Program between 1962 and 2015 
provide supporting evidence that the range of movement of oceanic 
whitetip sharks is large, with potential for transatlantic movements 
(Kohler et al., 1998; NMFS, unpublished data). Maximum time at liberty 
was 3.3 years and the maximum distance traveled was 1,225 nautical 
miles (nmi0 (2,270 kilometers (km0). These data indicate movements from 
the northeastern Gulf of Mexico to the Atlantic Coast of Florida, from 
the Mid-Atlantic Bight to southern Cuba, from the Lesser Antilles west 
into the central Caribbean Sea, from east to west along the equatorial 
Atlantic, and from off southern Brazil in a northeasterly direction. In 
the Bahamas, oceanic whitetips tagged at Cat Island stayed within 500 
km of the tagging site for ~30 days before dispersing across 16,422 
km\2\ of the western North Atlantic. Maximum individual displacement 
from the tagging site ranged from 290-1,940 km after times at liberty 
from 30-245 days, with individuals moving to several different 
destinations (e.g., the northern Lesser Antilles, the northern Bahamas, 
and north of the Windward Passage). Many sharks returned to the Bahamas 
after ~150 days and estimated residency times within the Bahamas 
Exclusive Economic Zone (EEZ), were generally high (mean=68.2 percent 
of time; Howey-Jordan et al., 2013). Oceanic whitetip sharks showed 
similar movement patterns and site fidelity in a tagging study 
conducted in Brazil. Although individuals tended to travel long 
distances before returning to the tagging area, tagging and pop-up 
sites were relatively close to each other. In fact, five out of eight 
sharks ended their tracks relatively close to their starting points, 
even after traveling several thousand kilometers (Tolotti et al., 
2015a).
    In the Indo-Pacific, two tagging studies of oceanic whitetip shark 
have been conducted: one in the central Pacific and one in the western 
Indian Ocean. In the central Pacific, oceanic whitetip sharks showed a 
complex movement pattern generally restricted to tropical waters north 
of the North Equatorial Countercurrent near the tagging location. 
Maximum time at liberty was 243 days, but the largest linear movement 
was 2,314 nmi (4,285 km) in 95 days (Musyl et al., 2011). Similar to 
previously discussed studies, long distance movements were also 
observed in the Indian Ocean, with one tag that remained attached for 
100 days. This individual displayed extensive horizontal movement 
covering a distance of approximately 6,500 km during the monitored 
period, moving from the Mozambique Channel up the African east coast of 
Somalia and then heading back down towards the Seychelles (Filmalter et 
al., 2012). Overall, the available tagging data demonstrates that 
oceanic whitetip sharks are capable of traveling great distances in the 
pelagic environment, but also show a high degree of site fidelity in 
some locations.

Diet and Feeding

    Oceanic whitetip sharks are high trophic-level predators in open 
ocean ecosystems feeding mainly on teleosts and cephalopods (Backus et 
al., 1956; Bonfil et al., 2008), but studies have also reported that 
they consume sea birds, marine mammals, other sharks and rays, 
molluscs, crustaceans, and even garbage (Compagno 1984; Cort[eacute]s 
1999). Backus et al., (1956) recorded various fish species in the 
stomachs of oceanic whitetip sharks, including blackfin tuna, 
barracuda, and white marlin. Based on the species' diet, the oceanic 
whitetip has a high trophic level, with a score of 4.2 out of a maximum 
5.0 (Cort[eacute]s 1999). The available evidence also suggests that 
oceanic whitetip sharks are opportunistic feeders. In the Bahamas, 
large pelagic teleosts (e.g., billfish, tunas, and dolphin fish) are 
abundant and oceanic whitetips are anecdotally reported to feed heavily 
on recreationally caught teleosts in this region. In a recent study of 
an oceanic whitetip shark aggregation at Cat Island, Bahamas, SIA-based 
Bayesian mixing model estimates of short-term (near Cat Island) diets 
showed more large pelagic teleosts (72 percent) than in long-term diets 
(47 percent), showing a spatiotemporal difference in oceanic whitetip 
feeding habits. Thus, the availability of large teleost prey and 
supplemental feeding from recreational sport fishermen may be possible 
mechanisms underpinning site-fidelity and aggregation of oceanic 
whitetips at this location (Madigan et al., 2015).

Size and Growth

    Historically, the maximum length effectively measured for the 
oceanic whitetip was 350 cm total length (TL; Bigelow and Schroder 1948 
cited in Lessa et al., 1999), with ``gigantic individuals'' perhaps 
reaching 395 cm TL (Compagno 1984), though Compagno's length seems to 
have never been measured (Lessa et al., 1999). In contemporary times, 
Lessa et al. (1999) recorded a maximum size of 250 cm TL in the 
Southwest Atlantic, and estimated a theoretical maximum size of 325 cm 
TL (Lessa et al., 1999), but the most common sizes are below 300 cm TL 
(Compagno 1984). The oceanic whitetip has an estimated maximum age of 
17 years, with confirmed maximum ages of 12 and 13 years in the North 
Pacific and South Atlantic, respectively (Seki et al., 1998; Lessa et 
al., 1999). However, other information from the South Atlantic suggests 
the species likely lives up to ~20 years old based on observed 
vertebral ring counts (Rodrigues et al., 2015). Growth rates (growth 
coefficient, K) have been estimated similarly for both sexes and range 
from 0.075--0.099 in the Southwest Atlantic to 0.0852-0.103 in the 
North Pacific (Seki et al., 1998; Lessa et al., 1999; Joung et al., 
2016). Using life history parameters from the Southwest Atlantic, 
Cort[eacute]s et al. (2010; 2012) estimated productivity of the oceanic 
whitetip shark, determined as intrinsic rate of population increase 
(r), to be 0.094-0.121 per year (median). Overall, the best available 
data indicate that the oceanic whitetip shark is a long-lived species 
(at least 20 years) and can be characterized as having relatively low 
productivity (based on the Food and Agriculture Organization of the 
United Nations (FAO) productivity indices for exploited fish species, 
where r < 0.14 is considered low productivity), making them generally 
vulnerable to depletion and potentially slow to recover from 
overexploitation.

Reproduction

    Similar to other Carcharhinid species, the oceanic whitetip shark 
is viviparous (i.e., the species produces live young) with placental 
embryonic development. The reproductive cycle is thought to be

[[Page 96307]]

biennial, giving birth on alternate years, after a lengthy 10-12 month 
gestation period. The number of pups in a litter ranges from 1 to 14 
(mean = 6), and a positive correlation between female size and number 
of pups per litter has been observed, with larger sharks producing more 
offspring (Compagno 1984; Seki et al., 1998; Bonfil et al., 2008; IOTC 
2015a). Age and length of maturity estimates are slightly different 
depending on geographic location. For example, in the Southwest 
Atlantic, age and length of maturity in oceanic whitetips was estimated 
to be 6-7 years and 180-190 cm TL, respectively, for both sexes (Lessa 
et al., 1999). In the North Pacific, there are two different estimates 
for age and length of maturity. Seki et al., (1998) estimated that 
females reach sexual maturity at approximately 168-196 cm TL, and males 
at 175-189 cm TL, which corresponds to ages of 4 and 5 years, 
respectively (Seki et al., 1998). However, more recently Joung et al. 
(2016) determined a later age of maturity in the North Pacific, with 
females reaching maturity at 190 cm TL (approximately 8.5-8.8 years) 
and males reaching maturity at 172 cm TL (approximately 6.8-8.9 years 
old). In the Indian Ocean, both males and females mature at around 190-
200 cm TL (IOTC 2014). Size at birth also varies slightly between 
geographic locations, ranging from 55 to 75 cm TL in the North Pacific, 
around 65-75 cm TL in the northwestern Atlantic, and 60-65 cm TL off 
South Africa, with reproductive seasons thought to occur from late 
spring to summer (Bonfil et al., 2008; Compagno 1984).
    Tropical Pacific records of pregnant females and newborns are 
concentrated between 20[deg] N and the equator, from 170[deg] E to 
140[deg] W. In the Atlantic, young oceanic whitetip sharks have been 
found well offshore along the southeastern coast of the United States, 
suggesting that there may be a nursery in oceanic waters over this 
continental shelf (Compagno 1984; Bonfil et al., 2008). In the 
southwestern Atlantic, the prevalence of immature sharks, both female 
and male, in fisheries catch data suggests that this area may serve as 
potential nursery habitat for the oceanic whitetip shark (Coelho et 
al., 2009; Tambourgi et al., 2013; Tolotti et al., 2013; Fr[eacute]dou 
et al., 2015). Juveniles seem to be concentrated in equatorial 
latitudes, while specimens in other maturational stages are more 
widespread (Tambourgi et al., 2013). Pregnant females are often found 
close to shore, particularly around the Caribbean Islands. One pregnant 
female was found washed ashore near Auckland, New Zealand. These points 
suggest that females may come close to shore to pup (Clarke et al., 
2015b). In the southwestern Indian Ocean, oceanic whitetip sharks 
appear to mate and give birth in the early summer. The locations of the 
nursery grounds are not well known but they are thought to be in 
oceanic areas.

Population Structure and Genetics

    To date, only two studies have been conducted on the genetics and 
population structure of the oceanic whitetip shark, which suggest there 
may be some genetic differentiation between various populations of the 
species. The first study (Camargo et al., 2016) compared the 
mitochondrial control region (mtCR) in 215 individuals from the Indian 
Ocean and eastern and western Atlantic Ocean. While results showed 
significant genetic differentiation (based on haplotype frequencies) 
between the eastern and western Atlantic Ocean ([Phi]ST = 0.1039, P 
<0.001; Camargo et al., 2016), pairwise comparisons among populations 
within the regions revealed a complex pattern. Though some eastern 
Atlantic populations were significantly differentiated from western 
Atlantic populations (FST = 0.09-0.27, P < 0.01), others were not (FST 
= 0.02-0.03, P > 0.01), even after excluding populations with sample 
sizes of less than 10 individuals (Camargo et al., 2016). Additionally, 
the sample size from the Indian Ocean (N = 9) may be inadequate to 
detect statistically significant genetic structure between this and 
other regions (Camargo et al., 2016). Furthermore, since this study 
only used mitochondrial markers, male mediated gene flow is not 
reflected.
    In the second study, Ruck (2016) compared the mitochondrial control 
region, a protein-coding mitochondrial region, and nine nuclear 
microsatellite loci in 171 individuals sampled from the western 
Atlantic, Indian, and Pacific Oceans. Using three population-level 
pairwise metrics (PhiST, FST, and Jost's D), Ruck (2016) did not detect 
fine-scale matrilineal structure within ocean basins, but mitochondrial 
and nuclear analyses indicated weak but significant differentiation 
between western Atlantic and Indo-Pacific Ocean populations ([Phi]ST = 
0.076, P = 0.0002; FST = 0.017, P < 0.05 after correction for False 
Discovery Rate). Therefore, Ruck (2016) suggests that oceanic whitetip 
sharks consist of a minimum of two contemporary, distinct genetic 
populations comprising sharks from the western Atlantic and the Indo-
Pacific (this study did not have any samples from the eastern 
Atlantic). However, although significant inter-basin population 
structure was evident, it was associated with deep phylogeographic 
mixing of mitochondrial haplotypes and evidence of contemporary 
migration between the western Atlantic and Indo-Pacific Oceans (Ruck 
2016).
    As noted previously, although Ruck (2016) did not initially detect 
fine-scale matrilineal structure within ocean basins, after comparing 
and analyzing the genetic samples of the two studies together (i.e., 
samples from Camargo et al., 2016 and samples from Ruck 2016), Ruck 
(Unpublished data) detected significant maternal population structure 
within the western Atlantic that provides evidence of three matrilineal 
lineages in the western Atlantic. However, the data showing population 
structure within the Atlantic relies solely on mitochondrial DNA and 
does not reflect male mediated gene flow. Thus, while the current 
(albeit unpublished) data supports three maternal populations within 
the Atlantic, this data is preliminary and information regarding male 
mediated gene flow would provide an improved understanding of the fine-
scale genetic structuring of oceanic whitetip in the Atlantic.
    The best available information indicates that the oceanic whitetip 
shark has relatively low genetic diversity. Compared to eight other 
circumtropical elasmobranch species, including the basking shark 
(Cetorhinus maximus), smooth hammerhead (Sphyrna zygaena), great 
hammerhead (Sphyrna mokarran), tiger shark (Galeocerdo cuvier), 
blacktip reef shark (Carcharhinus limbatus), sandbar shark 
(Carcharhinus plumbeus), silky shark (Carcharhinus falciformis), and 
the whale shark (Rhincodon typus), the oceanic whitetip shark ranks the 
fourth lowest in global mtCR genetic diversity (0.33 percent  0.19 percent; Ruck 2016), with diversity similar to the smooth 
hammerhead (0.32 percent  0.18 percent (Testerman 2014) and 
greater than basking sharks (Hoelzel et al., 2006). The mtCR genetic 
diversity of the oceanic whitetip is about half that of the closely 
related silky shark (0.61 percent 0.32 percent; (Clarke et 
al., 2015a)) and about a third that of the whale shark (1.1 percent 
 0.6 percent; (Castro et al., 2007). Ruck (2016) noted that 
the relatively low mtDNA genetic diversity (concatenated mtCR-ND4 
nucleotide diversity [pi] = 0.32 percent 0.17 percent) 
compared to other circumtropical elasmobranch species raises potential 
concern for the future genetic health of this species. Camargo et al., 
(2016) also observed low levels of

[[Page 96308]]

genetic variability for the species throughout the study area, and 
noted that these low genetic variability rates may represent a risk to 
the adaptive potential of the species leading to a weaker ability to 
respond to environmental changes (Camargo et al. 2016).

Current Status

    Oceanic whitetip sharks can be found worldwide, with no present 
indication of a range contraction. Although generally not targeted, 
they are frequently caught as bycatch in many global fisheries, 
including pelagic longline (PLL) fisheries targeting tuna and 
swordfish, purse seine, gillnet, and artisanal fisheries. Oceanic 
whitetip sharks are also a preferred species for their large, 
morphologically distinct fins, as they obtain a high price in the Asian 
fin market, and thus they are valuable as incidental catch for the 
international shark fin trade.
    In 2006, the International Union for Conservation of Nature (IUCN) 
classified the oceanic whitetip shark as Vulnerable globally based on 
an assessment by Baum et al., (2006) and its own criteria 
(A2ad+3d+4ad), and placed the species on its ``Red List.'' Under 
criteria A2ad, 3d and 4ad, a species may be classified as Vulnerable 
when its ``observed, estimated, inferred or suspected'' population size 
is reduced by 30 percent or more over the last 10 years, the next 10 
years, or any 10-year time period, or over a 3-generation period, 
whichever is the longer, where the reduction or its causes may not have 
ceased or may not be understood or may not be reversible, based on a 
direct observation and actual or potential levels of exploitation. The 
IUCN's justification for the categorization is based on the species' 
declining populations. The IUCN notes that the species' regional 
trends, slow life history characteristics (hence low capacity to 
recover from moderate levels of exploitation), and high levels of 
largely unmanaged and unreported mortality in target and bycatch 
fisheries, give cause to suspect that the population has decreased by 
over 30 percent and meets the criteria to be categorized as Vulnerable 
globally. As a note, the IUCN classification for the oceanic whitetip 
shark alone does not provide the rationale for a listing recommendation 
under the ESA, but the classification and the sources of information 
that the classification is based upon are evaluated in light of the 
standards on extinction risk and impacts or threats to the species.

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 (DPS) of any species of vertebrate fish or wildlife 
which interbreeds when mature.'' 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. NMFS determined at the 90-
day finding stage that the petition to list the global species of 
oceanic whitetip shark was warranted. As such, we conducted the 
extinction risk analysis on the global oceanic whitetip shark 
population.

Assessment of Extinction Risk

    The ESA (section 3) defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range.'' A threatened species is defined as ``any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' Neither we nor the USFWS have developed formal policy guidance 
about how to interpret the definitions of threatened and endangered 
with respect to what it means to be ``in danger of extinction.'' We 
consider the best available information and apply professional judgment 
in evaluating the level of risk faced by a species in deciding whether 
the species is threatened or endangered. We evaluate both demographic 
risks, such as low abundance and productivity, and threats to the 
species, including those related to the factors specified in ESA 
section 4(a)(1)(A)-(E).

Methods

    As we described previously, we convened an ERA team to evaluate 
extinction risk to the species. This section discusses the methods used 
to evaluate threats and the overall extinction risk to the oceanic 
whitetip shark. For purposes of the risk assessment, an ERA team 
comprised of fishery biologists and shark experts was convened to 
review the best available information on the species and evaluate the 
overall risk of extinction facing the oceanic whitetip shark, now and 
in the foreseeable future. The term ``foreseeable future'' was defined 
as the timeframe over which threats could be reliably predicted to 
impact the biological status of the species. After considering the life 
history of the oceanic whitetip shark, availability of data, and types 
of threats, the ERA team decided that the foreseeable future should be 
defined as approximately 3 generation times for the oceanic whitetip 
shark, or approximately 30 years. A generation time is defined as the 
time it takes, on average, for a sexually mature female oceanic 
whitetip shark to be replaced by offspring with the same spawning 
capacity. This timeframe (3 generation times) takes into account the 
time necessary to provide for the conservation and recovery of the 
species. As a late-maturing species, with slow growth rate and 
relatively low productivity, it would likely take more than a 
generation time for any conservative management action to be realized 
and reflected in population abundance indices. In addition, the 
foreseeable future timeframe is also a function of the reliability of 
available data regarding the identified threats and extends only as far 
as the data allow for making reasonable predictions about the species' 
response to those threats. Since the main threats to the species were 
identified as fisheries and the inadequacy of existing regulatory 
measures that manage these fisheries, the ERA team felt that they had 
the background knowledge in fisheries management and expertise to 
confidently predict the impact of these threats on the biological 
status of the species within this timeframe.
    The ability to measure or document risk factors to a marine species 
is often limited, where quantitative estimates of abundance and life 
history information are often lacking altogether. Therefore, in 
assessing extinction risk of a data limited species, it is important to 
include both qualitative and quantitative information. In assessing 
extinction risk to the oceanic whitetip shark, the ERA team considered 
the demographic viability factors developed by McElhany et al., (2000) 
and the risk matrix approach developed by Wainwright and Kope (1999) to 
organize and summarize extinction risk considerations. The approach of 
considering demographic risk factors to help frame the consideration of 
extinction risk has been used in many of our status reviews (see http://www.nmfs.noaa.gov/pr/species for links to these reviews). In this 
approach, the collective condition of individual populations is 
considered at the species level according to four demographic viability 
factors: Abundance, growth rate/productivity, spatial structure/
connectivity, and diversity. These viability factors reflect concepts 
that are

[[Page 96309]]

well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk.
    Using these concepts, the ERA team evaluated demographic risks by 
assigning a risk score to each of the four demographic risk factors. 
The scoring for these demographic risk criteria correspond to the 
following values: 0--unknown risk, 1--low risk, 2--moderate risk, and 
3--high risk. Detailed definitions of the risk scores can be found in 
the status review report.
    The ERA team also performed a threats assessment for the oceanic 
whitetip shark by evaluating the effect that the threat was currently 
having on the extinction risk of the species. The levels included 
``unknown,'' ``low,'' ``moderate,'' and ``high.'' The scores were then 
tallied and summarized for each threat. It should be emphasized that 
this exercise was simply a tool to help the ERA team members organize 
the information and assist in their thought processes for determining 
the overall risk of extinction for the oceanic whitetip shark.
    Guided by the results from the demographic risk analysis and the 
threats assessment, the ERA team members were asked to use their 
informed professional judgment to make an overall extinction risk 
determination for the oceanic whitetip shark. For this analysis, the 
ERA team considered three levels of extinction risk: 1--low risk, 2--
moderate risk, and 3--high risk, which are all temporally connected. 
Detailed definitions of these risk levels are as follows: 1 = Low risk: 
A species or DPS is at low risk of extinction if it is not at a 
moderate or high level of extinction risk (see ``Moderate risk'' and 
``High risk'' below). A species or DPS may be at a low risk of 
extinction if it is not facing threats that result in declining trends 
in abundance, productivity, spatial structure, or diversity. A species 
or DPS at low risk of extinction is likely to show stable or increasing 
trends in abundance and productivity with connected, diverse 
populations; 2 = Moderate risk: A species or DPS is at moderate risk of 
extinction if it is on a trajectory that puts it at a high level of 
extinction risk in the foreseeable future (see description of ``High 
risk''). A species or DPS may be at moderate risk of extinction due to 
projected threats or declining trends in abundance, productivity, 
spatial structure, or diversity. The appropriate time horizon for 
evaluating whether a species or DPS is more likely than not to be at 
high risk in the foreseeable future depends on various case- and 
species-specific factors; 3 = High risk: A species or DPS with a high 
risk of extinction is at or near a level of abundance, productivity, 
spatial structure, and/or diversity that places its continued 
persistence in question. The demographics of a species or DPS at such a 
high level of risk may be highly uncertain and strongly influenced by 
stochastic or depensatory processes. Similarly, a species or DPS may be 
at high risk of extinction if it faces clear and present threats (e.g., 
confinement to a small geographic area; imminent destruction, 
modification, or curtailment of its habitat; or disease epidemic) that 
are likely to create present and substantial demographic risks. The ERA 
team adopted the ``likelihood point'' (FEMAT) method for ranking the 
overall risk of extinction to allow individuals to express uncertainty. 
For this approach, each team member distributed 10 ``likelihood 
points'' among the extinction risk levels. This approach has been used 
in previous NMFS status reviews (e.g., Pacific salmon, Southern 
Resident killer whale, Puget Sound rockfish, Pacific herring, and black 
abalone) to structure the team's thinking and express levels of 
uncertainty when assigning risk categories. Although this process helps 
to integrate and summarize a large amount of diverse information, there 
is no simple way to translate the risk matrix scores directly into a 
determination of overall extinction risk. Other descriptive statistics, 
such as mean, variance, and standard deviation, were not calculated, as 
the ERA team felt these metrics would add artificial precision to the 
results. The scores were then tallied and summarized.
    Finally, the ERA team did not make recommendations as to whether 
the species should be listed as threatened or endangered. Rather, the 
ERA team drew scientific conclusions about the overall risk of 
extinction faced by the oceanic whitetip shark under present conditions 
and in the foreseeable future based on an evaluation of the species' 
demographic risks and assessment of threats.

Evaluation of Demographic Risks

Abundance

    While a global population size estimate or trend for the oceanic 
whitetip shark is currently unavailable, numerous sources of 
information, including the results of a recent stock assessment and 
several other abundance indices (e.g., trends in occurrence and 
composition in fisheries catch data, catch-per-unit-effort (CPUE), and 
biological indicators) were available to infer and assess current 
regional abundance trends of the species. Given the available data, and 
the fact that the available assessments were not conducted prior to the 
advent of industrial fishing (and thus not from virgin biomass), the 
exact magnitude of the declines and current abundance of the global 
population are unknown. However, based on the best available scientific 
and commercial data, the ERA team concluded, and we agree, that while 
the oceanic whitetip shark was historically one of the most abundant 
and ubiquitous shark species in tropical seas around the world, 
numerous lines of evidence suggest the species has not only undergone 
significant historical declines throughout its range, but likely 
continues to experience abundance declines of varying magnitude 
globally.
    Across the Pacific Ocean, several lines of evidence indicate 
significant and ongoing population declines of the oceanic whitetip 
shark. In the eastern Pacific Ocean (EPO), the oceanic whitetip shark 
was historically the third most abundant shark species after blue 
sharks (Prionace glauca) and silky sharks (C. falciformis). The oceanic 
whitetip comprised approximately 20 percent of the total shark catch in 
the tropical tuna purse seine fishery from 2000-2001 (Roman-Verdesoto 
and Orozco-Zoller 2005) and averaged 9 percent of the total shark catch 
from 1993-2009 (with silky sharks comprising 84 percent, the hammerhead 
complex comprising 5 percent, and other sharks comprising 2 percent; 
Hall and Rom[aacute]n 2013). However, if only the more recent period 
from 2005-2009 is considered, then the proportion of silky sharks is 93 
percent, followed by the scalloped hammerhead shark (1.6 percent), and 
the smooth hammerhead shark (1.5 percent). The changes are the result 
of a rapid decline in oceanic whitetip sharks (Hall and Rom[aacute]n 
2013). Data for the oceanic whitetip shark in the EPO is available from 
the Inter-American Tropical Tuna Commission (IATTC), the Regional 
Fishery Management Organization (RFMO) responsible for the conservation 
and management of tuna and tuna-like species in the IATTC Convention 
Area. The IATTC Convention Area is defined as waters of the EPO within 
the area bounded by the west coast of the Americas and by 50[deg] N. 
latitude, 150[deg] W. longitude, and 50[deg] S. latitude.
    Nominal catch data from the IATTC shows that purse seine sets on 
floating objects, unassociated sets and dolphin sets all show 
decreasing trends of oceanic whitetip shark since 1994 (IATTC 2007). In 
particular, presence of oceanic whitetip sharks on sets with floating 
objects, which are responsible

[[Page 96310]]

for 90 percent of the shark catches in the EPO purse seine fishery, has 
declined significantly (Hall and Rom[aacute]n 2013). Based on nominal 
catches per set as well as the frequency of occurrence of oceanic 
whitetip sharks in floating object sets, the species has practically 
disappeared from the fishing grounds, with a seemingly north to south 
progression. Similar trends are also seen in dolphin and school sets. 
These declines in nominal CPUE or the frequency of occurrence 
translates to a decline of 80-95 percent from the population levels in 
the late 1990s (Hall and Rom[aacute]n 2013). Although there are various 
potential reasons for such reductions, including changes in fishing 
areas or methods, higher utilization rates, or some combination of 
factors, the increasing rarity of this species in EPO purse seine sets 
likely tracks closely with their relative abundance (Hall and 
Rom[aacute]n 2016).
    Similar levels of decline have also been observed across the 
Western and Central Pacific Ocean. Like the eastern Pacific, the 
oceanic whitetip shark was once one of the most abundant pelagic shark 
species throughout the tropical waters of the region. For example, tuna 
longline survey data from the 1950s indicate oceanic whitetip sharks 
comprised 28 percent of the total shark catch of fisheries south of 
10[deg] N. (Strasburg 1958). Likewise, Japanese research longline 
records during 1967-1968 indicate that oceanic whitetip sharks were 
among the most common shark species taken by tuna vessels in tropical 
seas of the Western and Central Pacific, and comprised 22.5 percent and 
23.5 percent of the total shark catch west and east of the 
International Date Line, respectively (Taniuchi 1990). However, 
numerous sources of information indicate significant and ongoing 
abundance declines of oceanic whitetip sharks in this region. For 
example, a recent stock assessment conducted in the Western and Central 
Pacific, based on observer data from the Secretariat of the Pacific 
Community (SPC), estimated an 86 percent decline in spawning biomass 
from 1995 to 2009, with total biomass reduced to just 6.6 percent of 
the theoretical equilibrium virgin biomass (i.e., a total decline of 
93.4 percent; Rice and Harley 2012). Based on the results from the 
oceanic whitetip stock assessment, the median estimate of oceanic 
whitetip biomass in the Western Central Pacific as of 2010 was 7,295 
tons (Rice and Harley 2012), which would be equivalent to a population 
of roughly 200,000 individuals (FAO 2012). An updated assessment 
analyzing various abundance indices, including standardized CPUE, 
concluded that the oceanic whitetip shark continues to decline 
throughout the tropical waters of the Western and Central Pacific (Rice 
et al., 2015), indicating a severely depleted population of oceanic 
whitetip shark across the region with observations of the species 
becoming increasingly rare. Similar results were found in analyses of 
CPUE data from the Hawaii-based PLL fishery, where oceanic whitetip 
shark showed a decline in relative abundance on the order of >=90 
percent from 1995-2010 (Clarke et al., 2012; Brodziak et al., 2013). It 
must be recognized that the closeness of the agreement between the 
trends in observer data from Hawaii and the observer data from the SPC 
for the entire Western and Central Pacific Ocean may be partly due to 
the use of datasets that partially overlap for years prior to 2005. 
Still, even after 2005, the trends show similar results suggesting that 
the patterns are representative of regional trends in oceanic whitetip 
abundance. A preliminary update of the Brodziak et al. (2013) study 
with 4 additional years of data (2011-2014) indicates a potential 
relative stability in the population size at a post-decline depressed 
state (Young et al., 2016). Nonetheless, the ERA team concluded, and we 
agree, that the levels of significant and ongoing population decline 
observed in these studies indicate that these declines are not just 
local or regional, but rather a Pacific-wide phenomenon, with no 
significant indication that these trends have reversed.
    In the Northwest Atlantic, the oceanic whitetip shark was described 
historically as widespread, abundant, and the most common pelagic shark 
in the warm parts of the North Atlantic (Backus et al., 1956). Several 
studies have been conducted to determine trends in abundance of various 
shark species, including the oceanic whitetip shark. Baum et al., 
(2003) analyzed logbook data for the U.S. PLL fleets targeting 
swordfish and tunas, and reported a 70 percent decline in relative 
abundance for the oceanic whitetip shark from 1992 to 2000. Similarly, 
Baum and Myers (2004) compared longline CPUE from research surveys from 
1954-1957 to observed commercial longline sets from 1995-1999, and 
determined that the oceanic whitetip had declined by more than 150-
fold, or 99.3 percent (95 percent; Confidence Interval (CI): 98.3-99.8 
percent) in the Gulf of Mexico during that time. However, the methods 
and results of Baum et al. (2003) and Baum and Myers (2004) were 
challenged on the basis of whether correct inferences were made 
regarding the magnitude of shark population declines in the Atlantic 
(see discussions in Burgess et al., (2005b) and Burgess et al., 
(2005a)). Of particular relevance to the oceanic whitetip, Burgess et 
al., (2005b) noted that the change from steel to monofilament leaders 
between the 1950s and 1990s could have reduced the catchability of all 
large sharks, and the increase in the average depth of sets during the 
same period could have reduced the catchability of the surface-dwelling 
oceanic whitetip (FAO 2012). Later, Driggers et al., (2011) conducted a 
study on the effects of different leader materials on the CPUE of 
oceanic sharks and determined that with equivalent methods but using a 
wire leader, the catch rates of Baum and Myers (2004) for the recent 
period would have been 0.55 rather than 0.02 (as estimated by Baum and 
Myers (2004) using nylon leaders). Comparing the recent 0.55 value with 
the Baum et al. (2003) value of 4.62 for the 1950s gave an estimated 
extent of decline of 88 percent (FAO 2012). In a re-analysis of the 
same logbook dataset analyzed by Baum et al. (2003) for the Northwest 
Atlantic using a similar methodology, Cort[eacute]s et al., (2007) 
reported a 57 percent decline from 1992-2005. The decline was largely 
driven by a 37 percent decline from 1992 to 1993 and a subsequent 
decline of 53 percent from 1997 to 2000, after which the time series 
remained stable (2000-2005). However, an analysis of the observer 
dataset from the same fishery resulted in a less pronounced decline 
than that of the logbook analysis, with a 9 percent decline in 
abundance from the same period of 1992-2005. Finally, the ERA team 
conducted an updated analysis (1992-2015) using the same observer data 
analyzed by Cort[eacute]s et al. (2007). Similar to previous analyses, 
there was high variability in the initial years of the time series, but 
overall, the analysis conducted by the ERA team showed ~4 percent 
decline over the time series, with the overall trend indicative that 
the population may have stabilized (Young et al. 2016). Although 
observer data are generally regarded as more reliable than logbook data 
for non-target shark species (Walsh et al., 2002), it should be noted 
that the sample size of oceanic whitetip shark in the observer data was 
substantially smaller than for other species, and thus the trends 
estimated should be regarded with caution. Additionally, although 
misreporting and species misidentification are likely to be much more 
prevalent in logbooks,

[[Page 96311]]

which can obscure abundance trends, misidentification is not considered 
an issue for the oceanic whitetip, whereas it is more problematic for 
other species such as night shark and other Carcharhinus species. It 
should also be noted that fishing pressure on the oceanic whitetip 
shark began decades prior to the time series covered in these studies 
(with the exception of the Baum and Myers (2004) study), thus the 
percentage declines discussed here do not represent percentage declines 
from historical virgin biomass. Therefore, given all of the caveats and 
limitations of the studies and analyses discussed above, it is likely 
that the oceanic whitetip shark population in the Northwest Atlantic 
and Gulf of Mexico experienced significant historical declines; 
however, relative abundance of oceanic whitetip shark may have 
stabilized in the Northwest Atlantic since 2000 and in the Gulf of 
Mexico/Caribbean since the late 1990s at a significantly diminished 
abundance (Cort[eacute]s et al. 2007; Young et al. 2016).
    In other areas of the oceanic whitetip shark range, robust and 
reliable quantitative abundance data are limited or lacking altogether. 
In the South Atlantic, the oceanic whitetip has been characterized as 
one of the most abundant species of pelagic shark in the southwestern 
and equatorial region. For example, the oceanic whitetip was the third 
most commonly caught shark out of 33 shark species caught year-round in 
the prominent Brazilian Santos longline fishery, and one of 7 species 
that comprised >5 percent of total shark catches from 1971-1995 (Amorim 
1998). In Itajai, southern Brazil, oceanic whitetip sharks were 
considered ``abundant'' and ``frequent'' in the surface longline and 
gillnet fleets, respectively, from 1994-1999 (Mazzoleni and Schwingel 
1999). Likewise, in equatorial waters off the northeastern coast of 
Brazil, the oceanic whitetip shark was historically reported as the 
second most abundant elasmobranch species, outnumbered only by the blue 
shark (P. glauca), in research surveys conducted within the EEZ of 
Brazil, and comprised 29 percent of the total elasmobranch catch in the 
1990s (Lessa et al., 1999). From 1992-2002, oceanic whitetip CPUE in 
this area averaged 2.18 individuals/1,000 hooks (Domingo et al., 2007); 
more recently, however, the average CPUE recorded in this same area 
from 2004-2010 of 0.1-0.3 individuals/1,000 hooks (Fr[eacute]dou et 
al., 2015) is much lower. Additionally, none of the other areas within 
this region exhibit CPUE rates comparable to the rates seen in the 
1990s. Further, demographic analyses from the largest oceanic whitetip 
shark catching country in the South Atlantic (i.e., Brazil) indicate 
abundance declines similar to the Northwest Atlantic of 50-79 percent 
in recent decades (Santana et al., 2004; ICMBio 2014) and coincide with 
significant declines in catches of oceanic whitetip shark reported by 
Brazil to the International Commission for the Conservation of Atlantic 
Tunas (ICCAT). As a result of these declining trends, the oceanic 
whitetip shark was designated as a ``species threatened by 
overexploitation'' in 2004 by Brazil's Minist[eacute]rio do Meio 
Ambiente (Ministry of Environment), and listed under Annex II of 
Brazil's Normative Ruling No. 5 of May 21, 2004 that recognizes 
endangered species and species threatened by overexploitation, 
including aquatic invertebrates and fish. In 2014, Brazil finalized its 
national assessment regarding the extinction risk of Brazilian fauna, 
and listed the oceanic whitetip shark as Vulnerable under Brazil's 
``Lista Nacional Oficial de Esp[eacute]cies da Fauna Amea[ccedil]adas 
de Extin[ccedil][atilde]o--Peixes e Invertebrados Aqu[aacute]ticos'' 
(National Official List of Endangered Species of Fauna--Fish and 
Aquatic Invertebrate; ICMBio 2014).
    Elsewhere across the South Atlantic, the oceanic whitetip shark 
appears to be relatively rare, with low patchy abundance. For example, 
in 6 years of observer data from the Uruguayan longline fleet (1998-
2003), catches of oceanic whitetip shark were described as 
``occasional'' with CPUE rates of only 0.006 individuals/1,000 hooks 
(Domingo 2004). However, during this study, the Uruguayan longline 
fleet operated between latitudes 26[deg] and 37[deg] S. and within sea 
surface temperatures ranging between 16[deg] and 23 [deg]C, which are 
largely lower than the temperature preferences of the species. Domingo 
(2004) noted that it is unknown whether the species has always occurred 
in low numbers in this region of the South Atlantic, or whether the 
population has been affected significantly by fishing effort. More 
recently, Domingo et al. (2007) found similar results, with the highest 
CPUE recorded not exceeding 0.491 individuals/1,000 hooks. In total, 
only 63 oceanic whitetips were caught on 2,279,169 hooks and 63 percent 
were juveniles. All catches occurred in sets with sea surface 
temperatures >=22.5 [deg]C (Domingo et al., 2007). Again, this data 
does not indicate whether a decline in the population has occurred, 
rather, it clearly reflects the low abundance of the species in this 
area (Domingo et al., 2007). The low abundance of oceanic whitetip in 
this area may be the result of the species' tendency to remain in 
warmer, tropical waters farther north. Alternatively, it could be a 
result of historical fishing pressure in the region.
    Finally, in a study that synthesized information on shark catch 
rates (based on 871,177 sharks caught on 86,492 longline sets) for the 
major species caught by multiple fleets in the South Atlantic between 
1979 and 2011, catch rates of most species (with the exception of P. 
glauca and A. superciliosus), including oceanic whitetip, declined by 
more than 85 percent (Barreto et al., 2015). However, it should be 
noted that there are some caveats and limitations to this study, 
including high and overlapping confidence intervals, raising the 
possibility that the trends may be noise rather than truly tracking 
abundance. Nonetheless, while robust abundance data is lacking in the 
South Atlantic, the best available information, including demographic 
analyses and fisheries data across the region from 1979-2011, indicate 
the oceanic whitetip shark has potentially experienced a significant 
population decline ranging from 50-85 percent (Santana et al. 2004; 
ICMBio 2014; Barreto et al. 2015). Overall, the ERA team concluded, and 
we agree, that the oceanic whitetip population in the South Atlantic 
has likely experienced historical declines similar to levels seen in 
the Northwest Atlantic, and this population decline is likely ongoing, 
although we acknowledge some uncertainty regarding the available data 
from this region.
    Abundance information from the Indian Ocean is relatively deficient 
and unreliable. Nonetheless, historical research data shows overall 
declines in both CPUE and mean weight of oceanic whitetip sharks 
(Romanov et al., 2008), and anecdotal reports suggest that oceanic 
whitetips have become rare throughout much of the Indian Ocean over the 
past 20 years (IOTC 2015a). The Indian Ocean Tuna Commission (IOTC) 
also reports that despite limited data, oceanic whitetip shark 
abundance has likely declined significantly over recent decades. 
Furthermore, a few quantitative studies provide some additional 
information indicative of declining trends of oceanic whitetip in the 
Indian Ocean. For example, data from an exploratory fishing survey for 
large pelagic species conducted off the eastern seaboard of the 
Maldives from 1987-1988 reported that oceanic whitetips represented 29 
percent of the sharks caught by longline and 10 percent of the sharks 
caught by gillnet in all fishing zones (Anderson and Waheed 1990). 
During this survey, the

[[Page 96312]]

average CPUE for all sharks was 48.7 sharks/1,000 hooks. Applying the 
percentage of oceanic whitetips in the catch to the total CPUE, it is 
estimated that the CPUE of oceanic whitetip in this period was about 
1.41 individuals/100 hooks (FAO 2012). More recently, Anderson et al. 
(2011) estimated that the average CPUE of oceanic whitetip in the shark 
longline fishery was only 0.20 individuals per fishing vessel (or 
approximately 0.14 sharks/100 hooks), and estimated the species 
contributed only 3.5 percent of the shark landings. This would 
represent a 90 percent decline in abundance between 1987-1988 and 2000-
2004. Such a level of decline would be consistent with the decrease in 
the proportion of oceanic whitetip in the catch (from 29 percent of 
longline shark catch in 1987-1988 to just 3.5 percent of landings in 
2000-2004) and also with anecdotal information reporting a marked 
decrease in sightings of oceanic whitetip sharks off northern and 
central Maldives (Anderson et al., 2011; FAO 2012). The IOTC Working 
Party on Ecosystems and Bycatch (WPEB) noted the following on the 
aforementioned studies: ``Data collected on shark abundance represents 
a consistent time series for the periods 1987-1988 and 2000-2004, 
collected with similar longline gear, and that the data was showing a 
declining trend in oceanic whitetip shark abundance, which is a 
potential indicator of overall stock depletion.'' The WPEB further 
noted that it could be related to localized effects, although this was 
deemed unlikely as oceanic whitetip sharks are wide-ranging and 
abundance trends from long-term research conducted by the former Soviet 
Union between the 1960s and 1980s indicate a similar decline of oceanic 
whitetip sharks, and that ``sightings of this species in Maldives and 
R[eacute]union islands is now quite uncommon'' (IOTC 2011).
    Similarly, surveys of the tuna longline fishery in India indicate a 
likely decline of oceanic whitetip shark abundance. In Andaman and 
Nicobar waters, where catches of sharks are prominent and contribute 
35.15 percent of the catch by number and 51.46 percent by weight, John 
and Varghese (2009) reported that the oceanic whitetip shark comprised 
4.6 percent of the total shark catch from 1984-2006. However, in more 
recent surveys, Varghese et al., (2015) report that oceanic whitetip 
shark comprised only 0.23 percent of the total shark catch from 2004-
2010 in this area, which is significantly lower than what John and 
Varghese (2009) reported previously. Off the West Coast of India in the 
eastern Arabian Sea, the percentage of oceanic whitetip sharks in the 
overall shark catch also declined slightly from 0.6 percent to 0.45 
percent. Overall, Varghese et al. (2015) shows that the index of 
relative abundance of sharks was considerably lower than that found in 
earlier studies, indicating a decline in abundance over the years. 
While the lack of standardized CPUE trend information for oceanic 
whitetip in these studies makes it difficult to evaluate the potential 
changes in abundance for this species in this region, based on the best 
available information, it is likely that the oceanic whitetip has 
experienced some level of population decline in this region. 
Additionally, it is important to note that India has objected to IOTC 
Resolution 13-06, which prohibits the retention of oceanic whitetip 
sharks (since 2013) in IOTC managed fisheries, and thus this Resolution 
is not binding on India. Therefore, oceanic whitetip sharks may still 
be retained in Indian fisheries.
    Other studies on the abundance trends of oceanic whitetip shark in 
the Indian Ocean, including analyses of standardized CPUE indices from 
Japanese and Spanish longline fisheries, also indicate potential 
population declines, although trends are conflicting. Two studies 
estimate standardized CPUE for oceanic whitetip shark in the Japanese 
longline fleet operating in the Indian Ocean (Semba and Yokawa 2011; 
Yokawa and Semba 2012). In the first 2011 study, CPUE reached its peak 
in 2003 and then showed a gradually decreasing trend thereafter. Prior 
to 2003, large fluctuations in oceanic whitetip CPUE are attributed to 
changes in reporting requirements rather than the actual trend of the 
stock, as those years represent the introduction phase of a new 
recording system. The data showed low values in 2000 and 2001 
(attributed to extremely low catches), and a gradual decreasing trend 
from 2003 to 2009. The authors interpreted a 40 percent decline in CPUE 
as an indication of a decrease in abundance of the population (FAO 
2012; Semba and Yokawa 2011). Yokawa and Semba (2012) updated the data 
to 2011 using a modified data filtering method, which produced a rather 
similar and somewhat flattened trend.
    Standardized CPUE of the Spanish longline fishery from 1998 to 2011 
showed large historical fluctuations and a general decreasing trend of 
oceanic whitetip shark from 1998-2007, followed by an increase 
thereafter in the last 4 years of the time series. Overall, the 
magnitude of decline in this study was estimated to be about 25-30 
percent (Ramos-Cartelle et al., 2012); however, it should be noted that 
due to the high variability of the standardized catch rates between 
consecutive years and limited availability of specimens in some years, 
this index could be representative of a particular period rather than a 
plausible indicator of the stock abundance at large (Ramos-Cartelle et 
al., 2012). Specifically, the data yielded support for the relatively 
low prevalence described for this species in the commercial fishery of 
surface longline fleets targeting swordfish in waters with temperatures 
generally lower than those selected by this species as its preferred 
habitat (Garc[iacute]a-Cort[eacute]s et al., 2012; Ramos-Cartelle et 
al., 2012).
    Finally, a study that incorporated data from the tropical French 
and Soviet Union purse seine fisheries analyzed the interaction between 
oceanic whitetip sharks and the tropical purse seine fisheries in terms 
of occurrence per set (not taking into account the number of 
individuals caught per set) from the mid-1980s to 2014. Results showed 
a marked change in the proportion of fish aggregating device (FAD) sets 
with oceanic whitetips present, fluctuating around 20 percent in the 
mid-1980s and 1990s, and then dropping to less than 10 percent from 
2005 onwards. Taking into account that the number of FADs has greatly 
increased since the 1990s (Dagorn et al., 2013; Maufroy et al., 2015; 
Tolotti et al., 2015b), the change in the proportion of FADs with 
oceanic whitetip sharks by more than 50 percent could indicate an 
important population decline (Tolotti et al., 2015b). Alternatively, 
the decline of oceanic whitetip shark occurrence per FAD could be the 
result of a sharp increase of FAD densities combined with a small and 
stable population size. In this scenario, the proportion of oceanic 
whitetips/FAD would simply decrease because there aren't enough sharks 
to aggregate around that many FADs. However, although the analyzed data 
does not provide a straightforward interpretation (as both hypotheses 
seem plausible), given the declines indicated in other studies 
throughout the Indian Ocean, it seems more plausible that the marked 
decline observed in Tolotti et al. (2015b) is indicative of a declining 
abundance trend rather than a small, stable population.
    Despite the varying magnitudes of reported declines of oceanic 
whitetip shark in the Indian Ocean, the ERA team agreed that given the 
significantly high fishing pressure and catches of oceanic whitetip 
shark in the Indian Ocean (which are likely severely underreported), 
combined with the

[[Page 96313]]

species' high at-vessel mortality rates in longlines in this area and 
the species' low-moderate productivity (see the Overutilization for 
Commercial, Recreational, Scientific, or Educational Purposes section 
below for more details), it is likely that the species will continue to 
experience population declines in this region into the foreseeable 
future.
    Overall, in areas where oceanic whitetip shark data are available, 
trends from throughout the species' global range show large historical 
declines in abundance (e.g., Eastern Pacific, Western and Central 
Pacific, Atlantic and Indian Oceans). Recent evidence suggests that 
most populations are still experiencing various levels of decline due 
to continued fishing pressure and associated mortality. Further, the 
potential stabilization of the abundance trends at depleted levels seen 
in observer data from the Northwest Atlantic and Hawaiian PLL fisheries 
represents a small contingent of the global population. Thus, the best 
available scientific and commercial data available suggest that the 
global population of oceanic whitetip continues to experience various 
levels of decline throughout the majority of its range.

Growth Rate/Productivity

    The ERA team expressed some concern regarding the effect of the 
oceanic whitetip shark's growth rate and productivity on its risk of 
extinction. Sharks, in general, have lower reproductive and growth 
rates compared to bony fishes. The ERA team noted that this species has 
some life history parameters that are typically advantageous, and some 
that are likely detrimental to the species' resilience to excessive 
levels of exploitation. For example, in comparison to other shark 
species, the oceanic whitetip is relatively productive, with an 
intrinsic rate of population increase (r) of 0.094-0.121 per year 
(Cort[eacute]s 2010; 2012). The oceanic whitetip also ranked among the 
highest in productivity when compared with other pelagic shark species 
in terms of its pup production, rebound potential, potential for 
population increase, and for its stochastic growth rate (Chapple and 
Botsford 2013). Although the oceanic whitetip shark has a relatively 
high productivity rate compared to other sharks, it is still considered 
low for a fish species (r <0.14). Additionally, the species has a 
fairly late age of maturity (~6-9 years for females depending on the 
location), has a lengthy gestation period of 9-12 months, and only 
produces an average of 5-6 pups every two years. Thus, while this 
species may generally be able to withstand low to moderate levels of 
exploitation, given the high level of fishing mortality this species 
has experienced and continues to experience throughout the majority of 
its range, its life history characteristics may only provide the 
species with a limited ability to compensate. Therefore, based on the 
best available information, these life history characteristics likely 
pose a risk to this species in combination with threats that reduce its 
abundance, such as overutilization.

Spatial Structure/Connectivity

    The oceanic whitetip shark is a relatively widespread species that 
may be comprised of distinct stocks in the Pacific, Indian, and 
Atlantic oceans. The population structure and exchange between these 
stocks is unknown; however, based on genetic information, telemetry 
data, and temperature preferences it is unlikely that there is much 
exchange between populations in the Atlantic and Indo-Pacific Oceans. 
However, recent genetic data suggests potentially significant 
population structure within the Atlantic, which may be underpinned by 
the fact that this species exhibits a high degree of philopatry in some 
locations (i.e., the species returns to the same site for purposes of 
breeding or feeding, etc.). While the population structure observed in 
the Atlantic, despite no physical or oceanographic barrier, could 
result in localized depletions in areas where fishing pressure is high 
(e.g., Brazil), habitat characteristics that are important to this 
species are unknown. The species is highly mobile, and there is little 
known about specific migration routes. It is also unknown if there are 
source-sink dynamics at work that may affect population growth or 
species' decline. There is no information on critical source 
populations to suggest spatial structure and/or loss of connectivity 
are presently posing demographic risks to the species. Thus, based on 
the best available information, there is insufficient information to 
support the conclusion that spatial structure and connectivity 
currently pose a significant demographic risk to this species.

Diversity

    As noted previously in the Population Structure and Genetics 
section, recent research suggests the oceanic whitetip shark has low 
genetic diversity (0.33 percent  0.19 percent; Ruck 2016), 
which is about half that of the closely related silky shark (0.61 
percent  0.32 percent; Clarke et al., (2015a)). The ERA 
team noted that the relatively low mtDNA genetic diversity of the 
oceanic whitetip raises potential concern for the future genetic health 
of this species, particularly in concert with steep global declines in 
abundance. Based on the fact that exploitation of the oceanic whitetip 
shark began with the onset of industrial fishing in the 1950s, only 5-7 
generations of oceanic whitetip have passed since the beginning of this 
exploitation. Thus, the low genetic diversity of oceanic whitetip shark 
likely reflects historic levels, and the significant global declines 
are not yet reflected genetically (Ruck 2016). The ERA team noted that 
this may be a cause for concern in the foreseeable future, since a 
species with already relatively low genetic diversity undergoing 
significant levels of exploitation may increase the species' risk in 
terms of reduced fitness and evolutionary adaptability to a rapidly 
changing oceanic environment as well as potential extirpations. The ERA 
team also noted that low genetic diversity does not necessarily equate 
to a risk of extinction in and of itself for all species; but, in 
combination with low levels of abundance and continued exploitation, 
low genetic diversity may pose a viable risk to the species in the 
foreseeable future.

Summary of Factors Affecting the Oceanic Whitetip Shark

    As described above, section 4(a)(1) of the ESA and NMFS' 
implementing regulations (50 CFR 424.11(c)) 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; the inadequacy of existing 
regulatory mechanisms; or other natural or manmade factors affecting 
its continued existence. The ERA team evaluated whether and the extent 
to which each of the foregoing factors contributed to the overall 
extinction risk of the global oceanic whitetip shark population. We 
summarize information regarding each of these threats below according 
to the factors specified in section 4(a)(1) of the ESA. Available 
information does not indicate that destruction, modification or 
curtailment of the species' habitat or range, disease or predation, or 
other natural or manmade factors are operative threats on this species; 
therefore, we do not discuss those further here. See Young et al. 
(2016) for

[[Page 96314]]

additional discussion of all ESA section 4(a)(1) threat categories.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Threats to the oceanic whitetip shark related to overutilization 
stem from mortality in commercial fisheries, largely driven by demand 
of the international shark fin trade, bycatch-related mortality, as 
well as illegal, unreported, and unregulated (IUU) fishing. The oceanic 
whitetip shark is generally not a targeted species, but because of its 
tendency to remain in the surface mixed layer of the water column (0-
152 m depth) and in tropical latitudes where fishing pressure is often 
most concentrated for target species such as tuna, the species is 
frequently encountered and suffers high mortality rates in numerous 
fisheries throughout its global range. The oceanic whitetip shark is 
also considered a preferred species for the international fin trade 
because its large, morphologically distinct fins obtain a high value in 
the Asian fin market. The high value and demand for oceanic whitetip 
fins incentivizes the retention and subsequent finning of oceanic 
whitetip sharks when caught, and thus represents the main economic 
driver for retention and mortality of this species in commercial 
fisheries throughout its global range. In fact, growth in demand from 
the fin trade during the 1990s coincided with a pattern of soaring 
catches of oceanic whitetip sharks in numerous fisheries across the 
globe. Catches generally peaked from 1995 to 2000 and were followed by 
precipitous declines over the next 10 years due to severe overfishing 
(Hazin et al., 2007; Lawson 2011; Clarke et al., 2012; Hasarangi et 
al., 2012; Brodziak et al., 2013; Hall and Rom[aacute]n 2013). The 
oceanic whitetip is regularly caught incidentally with PLLs, purse 
seines, handlines, troll and occasionally pelagic and even bottom 
trawls (Compagno 1984). In addition to mortality as a result of 
retention and finning in commercial fisheries, oceanic whitetip sharks 
experience varying levels of bycatch-related fishing mortality, 
including at-vessel and post-release mortality. Finally, recent reports 
of illegal trafficking of oceanic whitetip shark fins suggest the 
species may be heavily impacted by IUU fishing activities. Therefore, 
the ERA team assessed the following factors that may have contributed 
or continue to contribute to the historical and ongoing overutilization 
of the oceanic whitetip shark: Retention and finning in commercial 
fisheries for purposes of the international fin trade, incidental 
bycatch in commercial fisheries (including impacts of at-vessel and 
post-release mortality), and IUU fishing activities.
    In the EPO, the oceanic whitetip shark is caught on a variety of 
gear, including longline and purse seine gear targeting tunas and 
swordfish. They are also believed to be taken in artisanal fisheries in 
many countries around the EPO (IATTC 2007). To date, the IATTC has not 
conducted a stock assessment for the oceanic whitetip shark. However, 
species-specific catch estimates based on observer data from the purse 
seine fishery are available from the IATTC observer database. As noted 
previously in the Demographic Risk Assessment--Abundance section, the 
oceanic whitetip was the second most abundant shark in the catches 
behind the silky shark, and comprised approximately 9 percent of the 
total shark catch from 1993-2009 (Hall and Rom[aacute]n 2013). In 
floating object sets, which are responsible for 90 percent of oceanic 
whitetip shark catches, capture probability of the species has 
decreased over time from a high of 30 percent capture rate per set 
between 1994 and 1998, to less than 5 percent from 2004 to 2008 (Morgan 
2014). Estimated catches of oceanic whitetip sharks in all purse seine 
sets peaked with approximately 9,709 individuals caught in 1999; 
however, within 10 years catches dropped dramatically to an estimated 
379 oceanic whitetip sharks caught in 2005. Estimated catches of 
oceanic whitetip shark continue to decline in the EPO tropical tuna 
purse seine fishery, with only 120 individuals caught in 2015. This 
drastic decline in oceanic whitetip catches is in stark contrast to 
catches of the closely related silky shark, which have remained 
relatively constant over the same time period. Further, size trends in 
this fishery show that small oceanic whitetip sharks <90 cm, which 
comprised 21.4 percent of the oceanic whitetips captured in 1993, have 
been virtually eliminated (Hall and Rom[aacute]n 2013), indicating the 
possibility of recruitment failure in the population. During this same 
time period, there was an increase in both the total catch of tunas by 
purse seiners that employ drifting FADs and the number of FADs deployed 
(Eddy et al., 2016; Hall and Rom[aacute]n 2016). Over the past decade, 
the total number of FADs deployed per year has continued to increase 
steadily, from about 4,000 in 2005 to almost 15,000 in 2015 (Hall and 
Rom[aacute]n 2016). The total number of sets deployed has also 
continued increasing, with 2015 being the highest record observed. 
Thus, given the continued increase in fishing effort and expansion of 
the tropical tuna purse seine fleet in the Eastern Pacific, fishing 
pressure and associated mortality of oceanic whitetip sharks are 
expected to continue.
    Oceanic whitetip sharks are also sometimes a significant component 
of the bycatch in EPO longline fisheries, and are thought to be taken 
by local artisanal fisheries as well. While observer data is not 
available from these fisheries, some limited information is available 
from the various countries that fish in these waters. For example, the 
oceanic whitetip shark was identified as one of several principal 
species taken by Mexican fisheries targeting pelagic sharks (Sosa-
Nishizaki et al., 2008). Farther south, the oceanic whitetip shark has 
also been recorded in the catches of the Ecuadorian artisanal fishery. 
In an analysis of landings from the five principal ports of the 
Ecuadorian artisanal fishery from 2008-2012, 37.2 mt of oceanic 
whitetip shark were recorded out of a total 43,492.6 mt of shark 
catches (Martinez-Ortiz et al., 2015). Although limited, this 
information confirms that in addition to significant fishing pressure 
by the tropical tuna purse seine fishery, oceanic whitetip sharks are 
taken in longline and artisanal fisheries in unknown quantities. Based 
on the foregoing information, the ERA team concluded, and we agree, 
that overutilization of the oceanic whitetip shark is ongoing in this 
region, with no indication that these pressures will cease in the 
foreseeable future.
    In the Western and Central Pacific Ocean (WCPO), the oceanic 
whitetip shark commonly interacts with both longline and purse seine 
fisheries throughout the region, with at least 20 member nations of the 
Western and Central Pacific Fisheries Commission (WCPFC; the RFMO 
responsible for the conservation and management of tuna and tuna-like 
species in the region) recording the species in their fisheries. As 
noted previously, the oceanic whitetip historically comprised between 
20-28 percent of the total shark catch in some industrial longline 
fisheries during the 1950s and 1960s (Strasburg 1958; Taniuchi 1990). 
In this region, where sharks represent 25 percent of the longline 
fishery catch (Molony 2007), more recent observer data show that the 
oceanic whitetip shark represented only 6.3 percent of the total shark 
catch from 1991-2011(with blue shark comprising the large majority at 
~80.5 percent; Lawson 2011). In the purse seine fishery, the oceanic 
whitetip was once the second most common species of shark caught as 
bycatch in the WCPO,

[[Page 96315]]

and comprised approximately 4.2 percent of the total shark catch from 
1994-2011 (Lawson 2011). In addition to being caught indirectly as 
bycatch, observer records indicate that some targeting of oceanic 
whitetip shark has occurred historically in the waters near Papua New 
Guinea, and, given the high value of oceanic whitetip fins and low 
level of observer coverage in the region, it is likely that targeting 
has occurred in other areas as well (Rice and Harley 2012). Based on 
nominal and standardized catch rates for longline and purse seine 
fisheries, records of oceanic whitetip sharks in both fisheries have 
become increasingly rare over time, with catches of the species 
significantly declining since the late 1990s (Lawson 2011; Clarke et 
al., 2011a). For example, estimated catches of oceanic whitetip shark 
in the WCPO longline fishery suggest that catches peaked in 1998 at 
~249,000 individuals and declined to only ~53,000 individuals in 2009 
(Lawson 2011). It should be noted that catches by the fleets of 
Indonesia and the Philippines were not included because neither 
observer nor effort data were available for these fleets. Over the same 
time period (from 1995 to 2009) rates of fishing mortality consistently 
increased, driven mainly by the increased effort in the longline fleet, 
and remained substantially above the maximum sustainable yield (MSY) 
(i.e., the point at which there would be an equilibrium) for the 
species (Rice et al., 2015). The previously discussed stock assessment 
report (Rice et al., 2015) attributed the greatest impact on the 
species to bycatch from the longline fishery, and lesser impacts from 
target longline activities and purse-seining (Rice and Harley 2012). In 
fact, Rice et al. (2015) determined that fishing mortality on oceanic 
whitetip sharks in the WCPO has increased to levels 6.5 times what is 
sustainable, thus concluding that overfishing is still occurring.
    As a result of continued and increasing fishing pressure in the 
WCPO, size trends for oceanic whitetip have also declined, which is 
indicative of overutilization of the species. For example, declining 
median size trends were observed in all regions and sexes in both 
longline and purse seine fisheries until samples became too scarce for 
analysis. These size trends were significant for females in the 
longline fishery (Regions 3 and 4; See Figure 1 in Clarke et al., 2011a 
for the regional map), and for the purse seine fishery (Region 3). 
Regions 3 and 4 (i.e., the equatorial region of the WCPO) represent the 
species' core habitat areas, and contain 98 percent of the operational-
level reported purse seine sets and the majority of longline fishing 
effort (Clarke et al., 2011a; Rice et al., 2015). The decline in median 
size of female oceanic whitetip sharks is particularly concerning due 
to the potential correlation between maternal length and litter size, 
which has been documented in the Atlantic and Indian Oceans (Lessa et 
al. 1999, Bonfil et al. 2008). While Rice et al. (2015) more recently 
report that trends in oceanic whitetip median length are now stable, 
the majority of sharks observed are immature. In fact, 100 percent of 
oceanic whitetips sampled in the purse seine fishery have been immature 
since 2000 (Clarke et al., 2012).
    In the U.S. Pacific, the oceanic whitetip shark is a common bycatch 
species in the Hawaii-based PLL fishery. This fishery began around 
1917, and underwent considerable expansion in the late 1980s to become 
the largest fishery in the state (Boggs and Ito 1993). This fishery 
currently targets tunas and billfish and is managed under the auspices 
of the Western Pacific Fishery Management Council (WPFMC). From 1995-
2006, oceanic whitetip sharks comprised approximately 3 percent of the 
total shark catch (Brodziak et al., 2013). Based on observer data from 
the Pacific Islands Regional Observer Program (PIROP), oceanic whitetip 
shark mean annual nominal CPUE decreased significantly from 0.428 
sharks/1,000 hooks in 1995 to 0.036 sharks/1,000 hooks in 2010. This 
reflected a significant decrease in nominal CPUE on longline sets with 
positive catch from 1.690 sharks/1,000 hooks to 0.773 sharks/1,000 
hooks, and a significant increase in longline sets with zero catches 
from 74.7 percent in 1995 to 95.3 percent in 2010. As discussed 
previously in the Evaluation of Demographic Risks--Abundance section, 
oceanic whitetip CPUE declined by more than 90 percent in the Hawaii-
based PLL fishery since 1995 (Walsh and Clarke 2011; Brodziak et al., 
2013). Brodziak et al. (2013) concluded that relative abundance of 
oceanic whitetip declined within a few years of the expansion of the 
longline fishery, which suggests these fisheries are contributing to 
the commercial overutilization of oceanic whitetip within this portion 
of its range. It should be noted that while the Hawaii-based PLL 
fishery currently catches oceanic whitetip shark as bycatch, the 
majority of individuals are now released alive in this fishery and the 
number of individuals kept has been on a declining trend. For example, 
according to the U.S. National Bycatch Report First Edition Update 2 
(see www.st.nmfs.noaa.gov/observer-home/first-edition-update-2) the 
shallow-set fishery released alive an estimated 91-96 percent of all 
oceanic whitetip sharks caught from 2011 to 2013. During the same time 
period, the deep-set fishery released alive an estimated 78-82 percent 
of all oceanic whitetip sharks caught. However, it is unknown how many 
of these sharks survived after being released. Nonetheless, this 
particular fishery may be less of a threat to the oceanic whitetip 
shark in the foreseeable future. However, across the WCPO as a whole, 
given the ongoing impacts to the species from significant fishing 
pressure (with the majority of effort concentrated in the species' core 
tropical habitat area), including significant declines in CPUE, 
biomass, and size indices, and combined with the species' relatively 
low-moderate productivity, it is likely that overutilization has been 
and continues to be an ongoing threat contributing to the extinction 
risk of the oceanic whitetip shark across the region.
    The oceanic whitetip shark was also once described as the most 
common pelagic shark throughout the warm-temperate and tropical waters 
in the Atlantic and beyond the continental shelf in the Gulf of Mexico 
(Mather and Day 1954; Strasburg 1958). Oceanic whitetip sharks are 
taken in the Atlantic Ocean by longlines, purse seine nets, gillnets, 
trawls, and handlines; however, the large majority of the catch from 
1990-2014 reported to ICCAT was caught by longline gear (Young et al., 
2016). Oceanic whitetip sharks have exhibited a range of at-vessel 
mortality rates in longline gear in the Atlantic Ocean between 11-34 
percent (Beerkircher et al., 2002; Coelho et al., 2012; Fernandez-
Carvalho et al., 2015) and have been ranked as the 5th most vulnerable 
pelagic shark in an Ecological Risk Assessment that assessed 11 species 
of pelagic elasmobranchs (Cortes et al., 2010). In total, approximately 
2,430 mt of oceanic whitetip catches were reported to ICCAT from 1990-
2014; however, this is likely a severe underestimation of the total 
amount of oceanic whitetip sharks taken from the Atlantic. For example, 
Clarke (2008) calculated trade-based estimates that indicate between 
80,000-210,000 oceanic whitetip sharks were sourced from the Atlantic 
Ocean in 2003 alone to supply the Hong Kong fin market, which 
translates to approximately 3,000-8,000 mt.
    In the Northwest Atlantic, the oceanic whitetip is caught 
incidentally as bycatch by a number of fisheries,

[[Page 96316]]

including (but not limited to) the U.S. Atlantic PLL fishery, the Cuban 
``sport'' fishery (``sport'' = private artisanal and commercial), and 
the Colombian oceanic industrial longline fishery operating in the 
Caribbean (E-CoP16Prop.42, 2013). In the United States, oceanic 
whitetip sharks are caught as bycatch in PLL fisheries targeting tuna 
and swordfish in this region, with an estimated 8,526 individuals 
recorded as captured in U.S. fisheries logbooks from 1992 to 2000 (Baum 
et al., 2003) and a total of 912 individuals recorded by observers in 
the NMFS Pelagic Observer Program from 1992-2015. Relative to target 
species, oceanic whitetip sharks are caught infrequently and only 
incidentally on PLL vessels fishing for tuna and tuna-like species. 
Landings and dead discards of sharks by U.S. PLL fishers in the 
Atlantic are monitored every year and reported to ICCAT. Overall, very 
few oceanic whitetip sharks were landed by the commercial fishery, 
except for two peaks of about 1,250 and 1,800 fish in 1983 and 1998, 
respectively, but otherwise total catches never exceeded 450 fish (NMFS 
2009). Commercial landings of oceanic whitetip sharks in the U.S. 
Atlantic have been variable, but averaged approximately 1,077.4 lb 
(488.7 kg; 0.4887 mt) per year from 2003-2013. Although oceanic 
whitetip sharks have been prohibited on U.S. Atlantic commercial 
fishing vessels with pelagic longline gear onboard since 2011, they can 
still be caught as bycatch, caught with other gears, and are 
occasionally landed. However, since the ICCAT retention prohibition was 
implemented in 2011, estimated commercial landings of oceanic whitetip 
declined from 1.1 mt in 2011 to only 0.03 mt in 2013 (NMFS 2012; 2014). 
As discussed previously, the oceanic whitetip population size has 
likely declined significantly in this region due to historical 
exploitation of the species since the onset of industrial fishing 
(refer back to the Demographic Risk Assessment--Abundance section); 
however, results of the ERA team's analysis show that the oceanic 
whitetip shark population in this region has potentially stabilized 
since the 1990s/early 2000s (Young et al., 2016). The potential 
stabilization of oceanic whitetip sharks occurred concomitantly with 
the first Federal Fishery Management Plan for Sharks in the Northwest 
Atlantic Ocean and Gulf of Mexico, which directly manages oceanic 
whitetip shark under the pelagic shark group, and includes regulations 
on trip limits and quotas. This indicates the potential efficacy of 
these management measures for reducing the threat of overutilization of 
the oceanic whitetip shark population in this region; therefore, under 
current management measures, including the implementation of ICCAT 
Recommendation 10-07 (see Factor D--Inadequacy of Existing Regulatory 
Mechanisms for more details), the threat of overutilization is not 
likely as significant in this area relative to other portions of the 
species' range.
    In Cuba, some evidence suggests a historical decline of oceanic 
whitetip shark may have occurred, although this is uncertain. In the 
1960s, the oceanic whitetip shark was characterized as the most 
abundant species off the northwestern coast of Cuba, but since 1985, a 
substantial decline was observed in some species, including the oceanic 
whitetip. Variations in fishing effort and changes in the fishery make 
it difficult to assess the present condition of the resource, but since 
1981 there has been a tendency towards decline (Claro et al., 2001). 
Recent monitoring studies of a prominent fishing base in Cojimar, Cuba 
recorded the oceanic whitetip shark comprising only 2-5 percent of the 
shark landings from 2008-2011 (Cuba Department of Fisheries 2016). In 
contrast, Vald[eacute]s et al., (2016) show a steady pattern of 
abundance for the oceanic whitetip shark in Cuban fishery landings 
along the northwestern coast from 2010 to 2016. However, sharks caught 
in Cuban fisheries are never discarded, but rather utilized for either 
human consumption or bait. Cuba is not a member of ICCAT, and thus 
ICCAT Recommendation 10-07 on the retention prohibition of oceanic 
whitetip sharks is not applicable in Cuban waters. Further, evidence 
suggests there is a prevalence of small, immature individuals in Cuban 
catches, which suggests the possibility of an important nursery area 
for this species in the region. However, because these animals are 
small and of less value to the fishermen, they are typically using the 
juvenile C. longimanus as bait while at sea, a practice which is likely 
in conflict with sustainable fisheries management and conservation 
objectives (Valedz et al., 2016) and may be contributing to 
overutilization of the species.
    Farther south, it is likely that overutilization is an ongoing 
threat in the South Atlantic. Although fishing effort has been high and 
began intensifying in the southern Atlantic Ocean after the 1990s 
(Camhi et al., 2008), there is limited information on the catch rates 
or trends of oceanic whitetip sharks in this region. Oceanic whitetip 
sharks are taken as bycatch in numerous fisheries operating in the 
South Atlantic, including Brazilian, Uruguayan, Taiwanese, Japanese, 
Venezuelan, Spanish and Portuguese longline fisheries; however, the 
largest oceanic whitetip catching country in this region is Brazil. As 
noted in the Evaluation of Demographic Risks--Abundance section of this 
proposed rule, oceanic whitetips were historically reported as the 
second-most abundant shark in research surveys from northeastern Brazil 
between 1992 and 1997 (FAO 2012), with a high CPUE rate of 2.18 
individuals per 1,000 hooks (Domingo et al., 2007). More recently, 
however, average CPUE in this same area has seemingly declined. It also 
appears that the percentage of mature sharks has declined in recent 
years compared to surveys conducted in the 1990s. For example, the 
frequency of mature sharks >=180 cm was higher in the 1990s than in 
years 2005-2009. It should be noted that the data from 2005-2009 
represents a much larger area of the southwestern and equatorial 
Atlantic and has a much larger sample size (n = 1218; Tolotti et al., 
2013) than the results from the surveys conducted in the 1990s (n = 
258; Lessa et al., 1999). However, the two study areas do overlap and 
provide some indication that the size composition of oceanic whitetip 
sharks in the southwestern Atlantic may be shifting downwards. Catches 
of oceanic whitetip in the Brazilian tuna longline fishery have also 
shown a substantial decline, decreasing from ~640t in 2000 to only 80t 
in 2005 (Hazin et al., 2007). According to the ICCAT nominal catch 
database, catches of oceanic whitetip shark by Brazilian vessels 
continued to decline, with 0 mt reported from 2009-2012 and only 12 mt 
from 2013-2014. Although robust standardized CPUE data are not 
available for the species, making it difficult to evaluate whether the 
decline in catches resulted from decreased abundance or from changes in 
catchability, related, for instance, to targeting strategies (Hazin et 
al., 2007), a recent tagging study indicates that the preferred 
horizontal and vertical habitat of oceanic whitetip shark, including 
potential nursery areas, is heavily impacted by the industrial longline 
fishery. Telemetry data provides evidence that the equatorial region 
off Northeast Brazil is an area where the oceanic whitetip shark shows 
a high degree of philopatry (i.e., site fidelity). This same area also 
happens to be where the highest level of fishing effort is 
concentrated. For example, from 1999-2011, despite a wide distribution

[[Page 96317]]

of fishing sets, the area with the highest effort concentration by the 
Brazilian longline fleet was bound by the 5[deg] N. and the 15[deg] S. 
parallels and by the 040[deg] W. and 035[deg] W. meridians (i.e., the 
equatorial region of Northeast Brazil). Thus, the majority of fishing 
effort by the Brazilian fleet directly overlaps the preferred habitat 
area of oceanic whitetip sharks (Tolotti et al., 2015a). Further, many 
studies show a substantially high percentage of juveniles in the 
catches from this region (Coelho et al., 2009; Tambourgi et al., 2013; 
Tolotti et al., 2013; Fr[eacute]dou et al., 2015), which suggests the 
presence of nursery habitat. For example, Tambourgi et al. (2013) found 
that 80.5 percent of females were immature and 72.4 percent of males 
were immature in the Brazilian pelagic longline fishery between 
December 2003 and December 2010. Thus, it is likely that the intensive 
fishing pressure of oceanic whitetip across its preferred vertical and 
horizontal habitat, including nursery areas in Brazilian waters, is 
negatively impacting oceanic whitetip sharks at all life stages, and 
contributing to the overutilization of the species. In addition to 
information from Brazil, a recent study that synthesized information on 
shark catch rates for the major shark species caught by multiple fleets 
in the South Atlantic from 1979 and 2011 (e.g., Belize, Bolivia, 
Brazil, Canada, Spain, Guyana, Honduras, Iceland, Japan, Saint Kitts 
and Nevis, Korea, Morocco, Panama, Portugal, Taiwan, United Kingdom, 
Uruguay, United States, Saint Vincent and the Grenadines, and Vanuatu) 
concluded that declines of many shark species, including the oceanic 
whitetip, coincided with significant fishing effort expansion, a lack 
of regulatory measures to deal with shark bycatch, finning and directed 
fishing for sharks by some fleets (Barreto et al., 2015). Based on the 
foregoing information, the ERA team concluded, and we agree, that 
overutilization in the South Atlantic Ocean is likely a threat 
contributing to the oceanic whitetip's risk of extinction in the 
foreseeable future.
    Overutilization is also likely a threat to oceanic whitetip sharks 
in the Indian Ocean. The oceanic whitetip is reported as bycatch in all 
three major fisheries operating in the Indian Ocean; the species is 
considered ``frequent'' in both longline and purse seine fisheries, and 
``very frequent'' in the gillnet fishery (Murua et al., 2013b), with 
gillnet fisheries reporting the highest nominal catches of sharks in 
2014, and making up nearly 40 percent of total catches (Ardill et al., 
2011; IOTC 2015a). Although information from this region is limited and 
catch data are severely underreported, the IOTC (the RFMO that manages 
tuna and tuna-like species in the Indian Ocean and adjacent waters) 
reports that catches of oceanic whitetip shark are ranked as ``High,'' 
meaning the accumulated catches from 1950-2010 make up 5 percent or 
more of the total catches of sharks recorded (Herrera and Pierre 2011). 
In fact, a recent study estimated that the oceanic whitetip shark 
comprises 11 percent of the total estimated shark catch in the Indian 
Ocean (Murua et al., 2013a). It is also ranked as the 5th most 
vulnerable shark species caught in longline fisheries in the region 
(out of 16 species assessed) and the most vulnerable shark species 
caught in purse seine gear due to its high susceptibility (Murua et 
al., 2012; IOTC 2015a). Oceanic whitetip sharks also exhibit relatively 
higher at-vessel mortality rates in longlines in this region compared 
to other regions (i.e., 58 percent; IOTC 2015a) and likely have high 
mortality rates in purse seine and gillnet fisheries as well.
    The main fleets catching oceanic whitetip in the Indian Ocean in 
recent years (2011-2014) include: Indonesia, Sri Lanka, I.R. Iran, EU 
(Spain), China, Madagascar, and Seychelles. The reporting of catches of 
oceanic whitetip sharks shows an unusual trend in 2013 and 2014, with 
5,000+ mt reported to the IOTC. These trends are dominated by the Sri 
Lankan combination longline-gillnet fisheries, and an addition of 
proportionately very large catches by India (IOTC 2015b). Prior to the 
unusual trend in 2013 and 2014, the trend in oceanic whitetip catch 
shows a substantial increase throughout the 1990s, which likely 
corresponds with the rise in the shark fin trade (Clarke et al., 2007), 
a peak at 3,050 mt in 1999, followed by a sharp and continued decline 
in the 2000s. Although the IOTC database is constrained by a number of 
limitations, information from some fleets catching oceanic whitetip 
shark indicate declines in catches as well. For example, from 1996-
2004, landings of oceanic whitetip in Sri Lanka peaked at approximately 
3,000 mt in 1999 and show a declining trend thereafter (Hasarangi et 
al., 2012) to less than 300 mt in 2014. It is only in the last two 
years (2013 and 2014) that annual shark production has seen a 
significant decline in Sri Lanka due to regulatory measures 
(Jayathilaka and Maldeniya 2015). Most recently, Sri Lanka reported 
only 88 mt of oceanic whitetip shark catches to IOTC in 2015. Thus, the 
decline in oceanic whitetip catches in Sri Lanka occurred prior to the 
implementation of any regulatory measures, and may therefore be 
indicative of a population decline in Sri Lankan waters as a result of 
overutilization. Similarly, the substantial decline of oceanic whitetip 
sharks in the Maldives, from comprising 29 percent of the longline 
shark catch in the 1980s to only 3.5 percent of landings from 2000-2004 
(refer back to the Demographic Assessment--Abundance section of this 
proposed rule), is likely the result of overutilization of the species. 
In fact, Anderson et al. (2011) determined that the shark stocks that 
supported the shark fishery were sequentially overfished, with the 
decline in pelagic shark catches the result of high (and likely 
unsustainable) levels of fishing by overseas fisheries.
    The IOTC's Working Group on Ecosystems and Bycatch stated that at 
current catch levels (i.e., average of 347 mt prior to 2013), the 
Indian Ocean stock of oceanic whitetip was at considerable risk. Given 
the previous discussion regarding likely abundance declines in this 
region, combined with the high level of fishing pressure on oceanic 
whitetip sharks in the Indian Ocean and the species' low-moderate 
productivity, it is therefore likely that the substantially high 
catches of oceanic whitetip sharks in the Indian Ocean (5,000+ mt 
estimated for 2013 and 2014) are in excess of what is sustainable and 
are likely contributing to overutilization of the species in the Indian 
Ocean.
    Finally, the ERA team determined that demand from the international 
shark fin trade is the main economic force driving the retention and 
subsequent finning of oceanic whitetip sharks taken as bycatch in 
commercial fisheries worldwide, as they are considered a preferred 
species for their fins, command high prices in the international market 
(U.S. $45-85/kg; E-CoP16Prop.42 (2013)) and make up part of the ``first 
choice'' category in the China, Hong Kong Special Administrative Region 
(SAR) fin market (Vannuccini 1999). From 2000 to 2011, China, Hong Kong 
SAR maintained its position as the world's largest trader of shark 
fins, controlling the majority of global trade. In order to determine 
the species composition of the shark fin trade, Clarke et al., (2006a) 
analyzed 1999-2001 Hong Kong trade auction data in conjunction with 
species-specific fin weights and genetic information to estimate the 
annual number of globally traded shark fins. Using this approach, the 
authors discovered that oceanic whitetip sharks are sold under their 
own category ``Liu Qiu'' and represent approximately 1.8 percent of the 
Hong Kong shark fin

[[Page 96318]]

market (Clarke et al., 2006a). This level of oceanic whitetip shark 
fins in the trade translates to an estimated median of 700,000 oceanic 
whitetip sharks (range: 200,000-1,200,000 individuals), with an 
equivalent median biomass of around 21,000 mt (range 9,000-48,000 mt), 
traded annually (Clarke et al., 2006b). The lack of estimates of the 
global population makes it difficult to put these trade-based estimates 
into perspective. However, given the minimum estimate of ~9,000 mt 
traded annually is in excess of the total biomass estimated for oceanic 
whitetip for the entire Western and Central Pacific Ocean in 2010 
(i.e., 7,295 mt), the effect of the removals (for the shark fin trade) 
on the ability of the overall population to sustain this level of 
exploitation is likely substantial.
    In more recent years, genetic testing conducted in various fish 
markets provides additional confirmation of the ongoing utilization of 
oceanic whitetip shark in the shark fin trade. For example, a genetic 
sampling study conducted on shark fins collected from several fish 
markets throughout Indonesia determined that oceanic whitetip shark 
fins were present and comprised approximately 1.72 percent of the fins 
tested (Sembiring et al., 2015). In a genetic barcoding study of shark 
fins from markets in Taiwan, the oceanic whitetip was 1 of 20 species 
identified and comprised 0.38 percent of average landings from 2001-
2010 (Liu et al., 2013). In another genetic barcoding study of fins at 
the Deira fish market in Dubai, United Arab Emirates (with sharks 
originating from Oman), oceanic whitetip shark comprised 0.45 percent 
of fins tested (Jabado et al., 2015). Although it is uncertain whether 
these studies are representative of the entire market within each 
respective country, results of these genetic tests confirm the 
continued presence of oceanic whitetip shark fins in various markets 
throughout its range.
    Recent studies indicate that due to a waning interest in fins as 
well as increased regulations to curb shark finning, the shark fin 
market is declining. In fact, the trade in shark fins through China, 
Hong Kong SAR, which has served as an indicator of the global trade for 
many years, fell by 22 percent in 2012. Additionally, current 
indications are that the shark fin trade through Hong Kong SAR and 
China will continue to contract (Dent and Clarke 2015). The pattern of 
trade decline closely matches the pattern in chondrichthyan capture 
production and thus suggests a strong link between the quantity 
harvested and the quantity traded. However, a government-led backlash 
against conspicuous consumption in China, combined with global 
conservation momentum, appears to have had some impact on traded 
volumes as well (Eriksson and Clarke 2015). Despite the potential 
improvements in the trade, it is clear that the shark fin trade has 
asserted and continues to assert significant pressure on oceanic 
whitetip sharks. Given that oceanic whitetip fins are among the most 
prized in the international shark fin trade and obtain a high value per 
kg, combined with recent evidence of oceanic whitetip fins in several 
prominent markets, the incentive to take oceanic whitetip sharks for 
their fins remains high and is an ongoing threat contributing to the 
overutilization of the species. This is further evidenced by recent 
incidents of illegal trafficking of oceanic whitetip fins, which 
indicate that oceanic whitetip sharks are still sought after for their 
fins and continue to experience pressure from demands of the fin trade 
(see Inadequacy of Existing Regulatory Mechanisms section below for 
more details). In addition, a surge in the trade of shark meat has 
occurred in recent years. This could be the result of a number of 
factors, but taking the shark fin and shark meat aggregate trends 
together indicate that shark fin supplies are limited by the existing 
levels of chondrichthyan capture production, but shark meat is 
underutilized by international markets (Dent and Clarke 2015). This 
suggests that historically underutilized chondrichthyan species will be 
increasingly utilized for their meat. The ERA team considered whether 
the recent shift in demand away from shark fins to shark meat would 
have any considerable impact on the oceanic whitetip shark. Although 
there are markets for low-value shark meat such as oceanic whitetip, 
the retention bans for the species in all relevant RFMOs will likely 
dampen this threat. Thus, the ERA team did not think this increase in 
demand for shark meat would create a significant new threat to the 
species.
    Overall, based on the best available information, the ERA team 
concluded, and we agree, that overutilization is the single most 
important threat contributing to the extinction risk of the oceanic 
whitetip shark. Due to the paucity of available data from some regions, 
the ERA team acknowledged that there are some uncertainties in 
assessing the contribution of the threat of overutilization to the 
extinction risk of the oceanic whitetip shark throughout its range. As 
results from the Cort[eacute]s et al. (2012) and Murua et al. (2012) 
Ecological Risk Assessments demonstrated, the threat of overutilization 
of oceanic whitetip sharks may be exacerbated by the species' low-
moderate productivity combined with the species' tendency to remain in 
the surface mixed layer of the water column (i.e., 0-152 m) and within 
warm, tropical waters where the majority of fishing effort is often 
most concentrated. The severity of the threat of overutilization is 
dependent upon other risks and threats to the species, such as its 
abundance (as a demographic risk) as well as its level of protection 
from fishing mortality throughout its range. Given the above analysis 
and best available information, as well as evidence that the species' 
current trends in abundance place its future persistence in question 
due to overutilization, we find that overutilization for commercial 
purposes is a threat that places the species on a trajectory towards 
being in danger of extinction in the foreseeable future throughout all 
or a significant portion of its range.
Inadequacy of Existing Regulatory Mechanisms
    The ERA team evaluated existing regulatory mechanisms to determine 
whether they may be inadequate to address threats to the oceanic 
whitetip shark. Existing regulatory mechanisms assessed include 
federal, state, and international regulations for commercial fisheries, 
as well as the international trade in shark products. Below is a 
description and evaluation of current and relevant domestic and 
international management measures that may affect the oceanic whitetip 
shark. More information on these management measures can be found in 
the status review report (Young et al., 2016) and other recent status 
reviews of other shark species (Miller et al., 2013; 2014). The 
following section will first discuss U.S. domestic regulatory measures 
applicable to the oceanic whitetip shark, followed by international 
regulations that may affect sharks in general, as well as the oceanic 
whitetip shark in particular.
U.S. Domestic Regulatory Mechanisms
    In the U.S. Pacific, highly migratory species (HMS) fishery 
management is the responsibility of adjacent states and three regional 
management councils that were established by the Magnuson-Stevens 
Fishery Conservation and Management Act: The Pacific Fishery Management 
Council (PFMC), the North Pacific Fishery Management Council, and the 
Western Pacific Fishery Management Council (WPFMC). The PFMC manages 
highly migratory species

[[Page 96319]]

off the coasts of Washington, Oregon, and California; however, the 
oceanic whitetip shark is not one of the species they actively manage, 
as its distribution favors more tropical waters. The PFMC is, however, 
actively engaged in international fishery management organizations that 
manage fish stocks that migrate through the PFMC's area of 
jurisdiction. In 2011, NMFS published a final rule (76 FR 68332) 
issuing regulations to implement decisions of the IATTC, including the 
Resolution Prohibiting the Retention of Oceanic Whitetip Sharks (C-11-
10), which is described in more detail below in the International 
Regulatory Mechanisms section of this proposed rule. According to the 
final rule mentioned previously, U.S. fisheries that target highly 
migratory species rarely retain, transship, land, or sell this species 
in the IATTC Convention Area.
    The WPFMC has jurisdiction over the EEZs of Hawaii, Territories of 
American Samoa and Guam, Commonwealth of the Northern Mariana Islands, 
and the Pacific Remote Island Areas, as well as the domestic fisheries 
that occur on the adjacent high seas. The WPFMC developed the Pelagics 
Fishery Ecosystem Plan (FEP; formerly the Fishery Management Plan for 
the Pelagic Fisheries of the Western Pacific Region) in 1986 and NMFS, 
on behalf of the U.S. Secretary of Commerce, approved the Plan in 1987. 
Under the FEP, the oceanic whitetip shark is designated as a Pelagic 
Management Unit Species and is subject to regulations. These 
regulations are intended to minimize impacts to targeted stocks as well 
as protected species. Fishery data are also analyzed in annual reports 
and used to amend the FEP as necessary. In Hawaii and American Samoa, 
oceanic whitetip sharks are predominantly caught in longline fisheries 
that operate under extensive regulatory measures, including gear, 
permit, logbook, vessel monitoring system, and protected species 
workshop requirements. In 2015, NMFS published a final rule to 
implement decisions of the WCPFC to prohibit the retention of oceanic 
whitetip sharks in fisheries operating within the WCPFC's area of 
competence (or Convention Area), which comprises the majority of the 
Western and Central Pacific Ocean. The regulations were published in 
the Federal Register on February 19, 2015 (80 FR 8807) and include 
prohibitions on the retention of the oceanic whitetip shark, as well as 
requirements to release any oceanic whitetip caught. These regulations 
are applicable to all U.S. fishing vessels used for commercial fishing 
for HMS in the Convention Area (PIRO 2015). As noted previously in the 
Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes section of this proposed rule, oceanic whitetip 
sharks are still caught as bycatch in this fishery, but the majority of 
individuals are now released alive. Though post-release survival rates 
are unknown, it is likely these regulations are helping to reduce 
overall mortality of the species to some degree.
    In the Northwest Atlantic, the U.S. Atlantic HMS Management 
Division within NMFS develops regulations for Atlantic HMS fisheries, 
and primarily coordinates the management of Atlantic HMS fisheries in 
Federal waters (domestic) and the high seas (international), while 
individual states establish regulations for HMS in state waters. The 
NMFS Atlantic HMS Management Division currently manages 42 species of 
sharks (excluding spiny dogfish) under the Consolidated Atlantic HMS 
FMP (NMFS 2006). The management of these sharks is divided into five 
species groups: Large coastal sharks, small coastal sharks, pelagic 
sharks, smoothhound sharks, and prohibited sharks. Oceanic whitetip 
sharks are managed under the pelagic sharks group. One way that the HMS 
Management Division controls and monitors commercial harvest is by 
requiring U.S. commercial Atlantic HMS fishermen who fish for or sell 
sharks to have a Federal Atlantic Directed or Incidental shark limited 
access permit. These permits are administered under a limited access 
program, and NMFS is no longer issuing new shark permits. As of October 
2015, 224 U.S. fishermen are permitted to target sharks managed by the 
HMS Management Division in the Atlantic Ocean and Gulf of Mexico, and 
an additional 275 fishermen are permitted to land sharks incidentally 
(NMFS 2015). Under a directed shark permit, there is no directed 
numeric retention limit for pelagic sharks, subject to quota 
limitations. An incidental permit allows fishers to keep up to a total 
of 16 pelagic or small coastal sharks (all species combined) per vessel 
per trip. Current authorized gear types for oceanic whitetip sharks 
include: Bottom longline, gillnet, rod and reel, handline, or bandit 
gear. There are no restrictions on the types of hooks that may be used 
to catch oceanic whitetip sharks, and there is no commercial minimum 
size limit. The annual quota for pelagic sharks (other than blue sharks 
or porbeagle sharks) is currently 488 mt dressed weight. NMFS monitors 
the different shark quota complexes annually and will close the fishing 
season for each fishery after 80 percent of the respective quota has 
been landed or is projected to be landed. Atlantic sharks and shark 
fins from federally permitted vessels may be sold only to federally 
permitted dealers. Logbook reporting is required for selected fishers 
with a federal commercial shark permit. In addition, fishers may be 
selected to carry an observer onboard, and some fishers are subject to 
vessel and electronic monitoring systems depending on the gear used and 
where they fish. In terms of processing sharks landed, the head may be 
removed and the shark may be gutted and bled, but the shark cannot be 
filleted or cut into pieces while onboard the vessel and all fins, 
including the tail, must remain naturally attached to the carcass 
through offloading.
    In 2011, NMFS published final regulations to implement decisions of 
ICCAT (i.e., Recommendation 10-07 for the conservation of oceanic 
whitetip sharks), which prohibits retention of oceanic whitetip sharks 
in the PLL fishery and on recreational (HMS Angling and Charter 
headboat permit holders) vessels that possess tuna, swordfish, or 
billfish (76 FR 53652). The implementation of regulations to comply 
with ICCAT Recommendation 10-07 for the conservation of oceanic 
whitetip sharks is likely the most influential regulatory mechanism in 
terms of reducing mortality of oceanic whitetip sharks in the U.S. 
Atlantic. It should be noted that oceanic whitetip sharks are still 
occasionally caught as bycatch and landed in this region despite its 
prohibited status in ICCAT associated fisheries (NMFS 2012; 2014), as 
retention is permitted in other authorized gears other than pelagic 
longlines (e.g., gillnets, bottom longlines); however, these numbers 
have decreased. Prior to the implementation of the retention 
prohibition on oceanic whitetip, an analysis of the 2005-2009 HMS 
logbook data indicated that, on average, a total of 50 oceanic whitetip 
sharks were kept per year, with an additional 147 oceanic whitetip 
sharks caught per year and subsequently discarded (133 released alive 
and 14 discarded dead). Thus, without the prohibition, approximately 
197 oceanic whitetip sharks could be caught and 64 oceanic whitetip 
sharks (32 percent) could die from being discarded dead or retained 
each year (NMFS 2011). Since the prohibition was implemented in 2011, 
estimated commercial landings of oceanic whitetip declined from only 
1.1 mt in

[[Page 96320]]

2011 to only 0.03 mt (dressed weight) in 2013 (NMFS 2012; 2014). In 
fact, from 2013-2014, NMFS reported a total of 81 oceanic whitetip 
interactions, with 83 percent (67 individuals) released alive and 17 
percent (14 individuals) discarded dead (NMFS 2014; 2015). While the 
retention ban for oceanic whitetip does not prevent incidental catch or 
subsequent at-vessel and post-release mortality, it likely provides 
minor ecological benefits to oceanic whitetip sharks via a reduction in 
overall fishing mortality in the Atlantic PLL fishery (NMFS 2011).
    In addition to general commercial fishing regulations for 
management of highly migratory species, the United States has 
implemented a couple of significant laws for the conservation and 
management of sharks: the Shark Finning Prohibition Act and the Shark 
Conservation Act. The Shark Finning Prohibition Act was enacted in 
December 2000 and implemented by final rule on February 11, 2002 (67 FR 
6194), and prohibited any person under U.S. jurisdiction from: (i) 
Engaging in the finning of sharks; (ii) possessing shark fins aboard a 
fishing vessel without the corresponding carcass; and (iii) landing 
shark fins without the corresponding carcass. It also implemented a 
five percent fin to carcass ratio, creating a rebuttable presumption 
that fins landed from a fishing vessel or found on board a fishing 
vessel were taken, held, or landed in violation of the Act if the total 
weight of fins landed or found on board the vessel exceeded five 
percent of the total weight of carcasses landed or found on board the 
vessel. The Shark Conservation Act was signed into law on January 4, 
2011, and implemented by final rule on June 29, 2016 (81 FR 42285), 
and, with a limited exception for smooth dogfish (Mustelus canis), 
prohibits any person from removing shark fins at sea, or possessing, 
transferring, or landing shark fins unless they are naturally attached 
to the corresponding carcass.
    As expected, U.S. exports of dried shark fins dropped significantly 
after the passage of the Shark Finning Prohibition Act. In 2011, with 
the passage of the U.S. Shark Conservation Act, exports of dried shark 
fins dropped again, by 58 percent, to 15 mt, the second lowest export 
amount since 2001. This is in contrast to the price per kg of shark 
fin, which was at its highest price of ~$100/kg, and suggests that 
existing regulations have likely been effective at discouraging fishing 
for sharks solely for the purpose of the fin trade. Thus, although the 
international shark fin trade is likely a driving force behind the 
overutilization of many global shark species, including the oceanic 
whitetip, the U.S. participation in this trade appears to be 
diminishing. In 2012, the value of fins also decreased, suggesting that 
the worldwide demand for fins may be on a decline. For example, a 
decrease in U.S. fin prices coincided with the implementation of fin 
bans in various U.S. states in 2012 and 2013, and U.S. shark fin 
exports have continued on a declining trend (Miller et al., 2013). 
However, it should be noted that the continued decline is also likely a 
result of the waning global demand for shark fins altogether. 
Similarly, many U.S. states, especially on the West Coast, and U.S. 
Flag Pacific Island Territories have also passed fin bans and trade 
regulations, subsequently decreasing the United States' contribution to 
the fin trade. For example, after the State of Hawaii prohibited 
finning in its waters and required shark fins to be landed with their 
corresponding carcasses in the state in 2000, the shark fin exports 
from the United States into Hong Kong declined significantly in 2001 
(54 percent decrease, from 374 to 171 t) as Hawaii could therefore no 
longer be used as a fin trading center for the international fisheries 
operating and finning in the Central Pacific (Clarke et al., 2007). 
With regard to oceanic whitetip sharks, the finning regulations 
introduced in 2001 in the U.S. Hawaii-based longline fishery have acted 
to reduce mortality on oceanic whitetip and other large shark species 
(Walsh et al., 2009). Prior to the ban, from 1995-2000, the fins were 
taken from a large proportion of captured oceanic whitetip with the 
remaining carcass being discarded (72.3 percent in deep sets and 52.7 
percent from shallow sets), as was the case with other large sharks 
(Walsh et al., 2009). From 2004-2006, following the implementation of 
the new regulations, almost all sharks were released, although some 
were dead on release. Overall, minimum mortality estimates declined 
substantially as a result of the finning regulations, from 81.9 percent 
to 25.6 percent in deep sets and from 61.3 percent to 9.1 percent in 
shallow sets (Walsh et al., 2009). However, aside from this example, 
there is little information on the level of compliance with the various 
fisheries management measures for sharks, including oceanic whitetip, 
with compliance likely variable among other countries and regions.
    Overall, regulations to control for overutilization of oceanic 
whitetip sharks in U.S. waters, including fisheries management plans 
with quotas and trip limits, species-specific retention prohibitions in 
PLL gear, and finning regulations are not in and of themselves 
inadequate such that they are contributing to the global extinction 
risk of the species. In fact, it is likely that the stable CPUE trend 
observed for the oceanic whitetip shark in the Northwest Atlantic is 
largely a result of the implementation of management measures for 
pelagic sharks under the U.S. HMS FMP. However, because oceanic 
whitetip sharks are highly migratory and frequently move beyond U.S. 
jurisdiction, these regulatory mechanisms are limited on the global 
stage in that they only provide protections to oceanic whitetip sharks 
while in U.S. waters. While this does not make them inadequate in terms 
of their purpose of protecting oceanic whitetip sharks while in U.S. 
waters, finning and retention bans are likely inadequate in other parts 
of the world to prevent further population declines of oceanic whitetip 
as a result of overutilization (as discussed in detail below). 
Therefore, given the significant abundance declines observed for the 
species as a result of overutilization, and the fact that regulatory 
mechanisms are largely inadequate elsewhere across the species' range, 
it is unlikely that U.S. regulatory mechanisms alone are enough to 
mitigate for threats contributing to the species' global extinction 
risk.
International Regulatory Mechanisms
    Regarding international regulatory mechanisms, the ERA team 
expressed significant concern regarding existing regulations to control 
bycatch-related mortality, finning of oceanic whitetip sharks for the 
international shark fin trade, and illegal fishing and trafficking 
activities. The ERA team recognized that the number of international 
regulatory mechanisms for sharks in general, and the oceanic whitetip 
shark in particular, have been on the rise in recent years. For 
example, the oceanic whitetip shark was listed under Appendix II of the 
Convention on International Trade in Endangered Species of Wild Flora 
and Fauna (CITES) in 2014. CITES is an international agreement between 
governments, with the aim of ensuring that international trade in 
specimens of wild animals and plants does not threaten their survival. 
International trade in specimens of Appendix-II species may be 
authorized by the granting of an export permit or re-export 
certificate. No import permit is necessary for these species under 
CITES (although a permit is needed in some countries that have taken 
stricter measures than CITES requires).

[[Page 96321]]

However, recent data from Hong Kong's Agriculture Fisheries 
Conservation Department (AFCD) suggests that these measures are not 
adequately implemented or enforced by all CITES Parties with respect to 
the oceanic whitetip shark. Specifically, since the oceanic whitetip 
shark was listed under CITES Appendix II in 2014, approximately 1,263 
kg (2,784 lbs) of oceanic whitetip fins have been confiscated upon 
entry into Hong Kong because the country of origin did not include the 
required CITES permits and paperwork. Since 2014, confiscated oceanic 
whitetip fin shipments included 940.46 kg from Colombia, 10.96 kg from 
the Seychelles, and 272.49 kg from the United Arab Emirates (AFCD, 
Unpublished data).
    In addition to trade regulations, finning bans have been 
implemented by a number of countries, including the European Union 
(EU), as well as by nine RFMOs. These finning bans range from requiring 
fins remain attached to the body, to allowing fishers to remove shark 
fins provided that the weight of the fins does not exceed 5 percent of 
the total weight of shark carcasses landed or found onboard. In fact, 
all of the relevant RFMOS prohibit fins onboard that weigh more than 5 
percent of the weight of sharks to curb the practice of shark finning 
(i.e., the fins-to-carcass ratio). Although the fins-to-carcass weight 
ratios have the potential to reduce the practice of finning, these 
regulations do not prohibit the fishing of sharks and a number of 
issues associated with reliance on the 5 percent fins-to-carcass weight 
ratio requirement have been identified, including: the percentage of 
fins-to-carcass weight varies widely among species, fin types used in 
calculation, the type of carcass weight used (whole or dressed) and fin 
cutting techniques; under the fins-to-carcass weight ratio measure, 
sharks that are not landed with fins attached to the body make it 
difficult to match fins to a carcass (Lack and Sant 2009). There are 
also issues with using the ratios for dried vs. fresh fins, which can 
change the ratio substantially. Further, despite their existence, laws 
and regulations are rapidly changing and are not always effectively 
enforced by countries and RFMOs (Biery and Pauly 2012).
    Numerous RFMOs and countries have also implemented various 
regulations regarding shark fishing in general, which are described in 
detail in the Status Review Report (Young et al., 2016). A number of 
countries have enacted complete shark fishing bans (i.e., bans on 
retention and possession of sharks and shark products), with the 
Bahamas, Marshall Islands, Honduras, Sabah (Malaysia), and Tokelau (an 
island territory of New Zealand) adding to the list in 2011, the Cook 
Islands in 2012, and the Federated States of Micronesia in 2015. These 
``shark sanctuaries'' (i.e., locations where harvesting sharks is 
prohibited) can also be found in the Eastern Tropical Pacific Seascape 
(which encompasses around two million km\2\ and includes the Galapagos, 
Cocos, and Malpelo Islands), in waters off the Maldives, Mauritania, 
Palau, French Polynesia, New Caledonia and Raja Ampat, Indonesia. 
However, it should be noted that sharks can still be caught as bycatch 
in these areas and enforcement is likely difficult; thus, their 
efficacy for reducing bycatch-related mortality of sharks is uncertain.
    In addition to international regulatory mechanisms for the 
conservation of sharks in general via shark finning and fishing bans, a 
number of species-specific measures have been implemented for the 
conservation of oceanic whitetip sharks in particular. Specifically, 
the oceanic whitetip is the only shark species that has a no-retention 
measure in every tuna RFMO, which underscores the species' conservation 
status. However, the ERA team noted that international regulations 
specific to oceanic whitetip sharks are likely inadequate to mitigate 
threats that will result in further population declines throughout the 
species' global range. Notably, these measures likely have varying 
rates of implementation and enforcement and they do not prevent oceanic 
whitetip sharks from being caught in the first place, nor the 
subsequent at-vessel and post-release mortality that may result from 
being captured. Additionally, evidence suggests illegal trafficking and 
exportation activities of oceanic whitetip sharks are ongoing.
    In 2011, the IATTC adopted Resolution C-11-10 for the conservation 
of oceanic whitetip sharks, which provides that IATTC Members and 
Cooperating non-Members shall prohibit retaining onboard, 
transshipping, landing, storing, selling, or offering for sale any part 
or whole carcass of oceanic whitetip sharks in the IATTC Convention 
Area. However, this measure is not likely adequate to prevent capture 
and a substantial amount of mortality in the main fishery that catches 
oceanic whitetip sharks in this region (i.e., the tropical tuna purse 
seine fishery). Though published mortality rates of the oceanic 
whitetip shark in purse seine fisheries are not available, it is likely 
the species experiences high mortality rates similar to congener C. 
falciformis during and after interactions with purse seine fisheries 
(i.e., ~85 percent in Western and Central Pacific and Indian Ocean 
tropical purse seine fisheries; Poisson et al., (2014); Hutchinson et 
al., (2015)). Given that oceanic whitetip sharks are captured in a net 
where they are unable to swim, and they are also subjected to the 
weight of whatever tonnage is on top of them, the sharks likely 
experience high levels of stress that can lead to mortality even if 
they are released alive. In addition, rough handling techniques 
utilized after sharks are brought onboard can also increase mortality. 
Thus, the ERA team concluded, and we agree, that the retention 
prohibition enacted for oceanic whitetip sharks in the eastern Pacific, 
particularly for the tropical tuna purse seine fishery, is not likely 
effective in reducing the threat of overutilization in this region.
    In the Western and Central Pacific, the WCPFC also has regulatory 
measures for the conservation of sharks in general, as well as specific 
measures for the conservation of oceanic whitetip sharks. Likely the 
most influential management measure for the conservation of oceanic 
whitetip sharks in the Western and Central Pacific is Conservation 
Management Measure (CMM) 2011-04, which prohibits WCPFC vessels from 
retaining onboard, transshipping, storing on a fishing vessel, or 
landing any oceanic whitetip shark, in whole or in part, in the 
fisheries covered by the Convention. However, observations from the 
longline fishery have shown that CMM 2011-04 for the retention 
prohibition of oceanic whitetip is not being strictly followed (or not 
yet fully implemented), with non-negligible proportions of oceanic 
whitetips still being retained or finned. In fact, both in number and 
proportionally more oceanic whitetip sharks were retained in 2013 (the 
first year of the CMM) than 2012 in the longline fishery (Rice et al., 
2015). In addition, observations from the Western and Central tropical 
tuna purse seine fishery suggest similar issues discussed previously 
for the eastern Pacific purse seine fishery: Even if live release is 
strictly practiced in purse seine fisheries, the number of sharks 
surviving is expected to be low.
    In addition to finning controls and species-specific retention 
bans, the WCPFC has also adopted some conservation measures related to 
fisheries gear to reduce bycatch of oceanic whitetip sharks in the 
first place. For example, CMM 2014-05, which became effective in July 
2015, requires each national fleet to either ban wire leaders or ban 
shark lines, both of which have potential to reduce shark

[[Page 96322]]

bycatch. However, while it is predicted that oceanic whitetip shark 
mortality may be reduced by up to 40 percent if both measures are used, 
this CMM allows flag-states to choose which fishing technique they 
exclude. Using Monte Carlo simulations, Harley and Pilling (2016) 
determined the following: if flag-states choose to exclude the 
technique least used by their vessels, the median predicted reduction 
in fishing-related mortality is only 10 percent for the oceanic 
whitetip shark. If flag-states exclude the technique most used by their 
vessels, this would reduce the fishing mortality rate by 30 percent. 
This compares to a reduction of 40 percent if choice was removed and 
both techniques are prohibited. Therefore, given the high levels of 
fishing mortality experienced by this species, it is unlikely that the 
options under CMM (2014-05) of either banning shark lines or wire 
traces will result in sufficient reductions in fishing mortality 
(Harley et al., 2015). Thus, based on the foregoing information, the 
ERA team concluded, and we agree, that despite the increasing species-
specific management measures in this region, given the severely 
depleted state of the oceanic whitetip population and the significant 
levels of fishing mortality the species experiences in this region, 
less[hyphen]than[hyphen]full implementation will erode the benefits of 
any mitigation measures.
    In the Atlantic Ocean, ICCAT is the main regulatory body for the 
conservation and management of tuna and tuna-like species. In 2010, 
ICCAT developed Recommendation 10-07, which specifically prohibits the 
retention, transshipping, landing, storing, selling, or offering for 
sale any part or whole carcass of oceanic whitetip sharks in any 
fishery; however, like other previously described retention bans, the 
retention ban implemented by ICCAT does not necessarily prevent all 
fisheries-associated mortality. Although oceanic whitetip sharks have a 
relatively higher at-vessel survivorship rate than other pelagic sharks 
in the Atlantic, some will still likely die as a result of being 
caught. As previously discussed in the Overutilization for Commercial, 
Recreational, Scientific, or Educational Purposes section of this 
proposed rule, Brazil is one of the top 26 shark-catching countries in 
the world and the largest oceanic whitetip catching country in the 
Atlantic Ocean, comprising 89 percent of the total oceanic whitetip 
catch reported to ICCAT from 1992-2014. Thus, the following text 
focuses on existing regulatory mechanisms and their efficacy for 
reducing fishing pressure on oceanic whitetip sharks in Brazil. Since 
the implementation of ICCAT Recommendation 10-07, Brazil reported 12 mt 
of oceanic whitetip from 2013-2014, which indicates the species is 
still being caught and continues to experience fisheries-related 
mortality in this portion of its range. In addition to ICCAT 
regulations, sharks in Brazil must be landed with corresponding fins 
and a 5 percent fin to carcass weight ratio is required. In addition, 
all carcasses and fins must be unloaded and weighed and the weights 
reported to authorities. Pelagic gillnets and trawls are prohibited in 
waters less than 3 nm (5.6 km) from the coast; however, given that the 
oceanic whitetip is a pelagic species, a gillnet ban within 3 nm of the 
coast is not likely going to be beneficial to the species. Further, it 
is generally recognized that these regulations are poorly enforced 
(Chiaramonte and Vooren 2007). In December 2014, the Brazilian 
Government's Chico Mendes Institute for Biodiversity Conservation 
approved the National Plan of Action for the Conservation of 
Elasmobranchs of Brazil (No 125). However, this plan will not be fully 
implemented until 2019, and it focuses on a list of 12 priority species 
that does not include the oceanic whitetip shark. As noted previously, 
the oceanic whitetip shark was designated as a ``species threatened by 
overexploitation'' in 2004 by Brazil's Ministry of Environment, and 
listed under Annex II of Brazil's Normative Ruling No. 5 of May 21, 
2004. In 2014, Brazil finalized its national assessment regarding the 
extinction risk of Brazilian fauna, and listed the oceanic whitetip 
shark as ``Vulnerable'' under Brazil's National Official List of 
Endangered Species of Fauna--Fish and Aquatic Invertebrate (ICMBio 
2014). Species listed as ``Vulnerable'' enjoy full protection, 
including, among other measures, the prohibition of capture, transport, 
storage, custody, handling, processing and marketing. The capture, 
transport, storage, and handling of specimens of the species shall only 
be allowed for research purposes or for the conservation of the 
species, with the permission of the Instituto Chico Mendes. However, 
whether these regulations are adequately implemented and enforced is 
unclear. In fact, there is strong opposition from the fishing industry 
and some ordinances guaranteeing protection to endangered species in 
the country have recently been canceled (Di Dario et al., 2014). 
Additionally, systematic data collection from fleets fishing over 
Brazilian jurisdiction ended in 2012, and onboard observer programs 
have been cancelled, which renders any further monitoring of South 
Atlantic shark populations difficult or impossible (Barreto et al., 
2015). Given the foregoing information, it appears that existing 
regulatory mechanisms in Brazil may not be adequate to effectively 
manage the significant threat of fishing pressure and associated 
mortality on oceanic whitetip sharks in this region.
    The ERA team also identified several issues with regulations in the 
Indian Ocean. The IOTC, the main regulatory body for managing tuna and 
tuna-like species, has management measures in place for sharks in 
general, and also specifically for the oceanic whitetip shark. In 2013, 
the IOTC passed Resolution 13-06 that prohibits the retention, 
transshipment, landing, or storing of any part or whole carcass of 
oceanic whitetip sharks. However, unlike similar regulations 
implemented by other RFMOs, the IOTC retention prohibition of oceanic 
whitetip shark exempts ``artisanal fisheries operating exclusively in 
their respective EEZ for the purpose of local consumption.'' However, 
the definition of artisanal vessels in the IOTC encompasses a wide 
array of boats with vastly different characteristics. They range from 
the pirogue that fishes close to shore for subsistence with no motor, 
no deck and no holding facilities, to a longliner, gillnetter or purse 
seiner of less than 24 m with an inboard motor, deck, communications, 
fish holding facilities, and in some cases chilling or freezing 
capabilities. This latter vessel could potentially conduct fishing 
operations offshore, including outside its EEZ (Moreno and Herrera 
2013). For example, in 2014 and 2015 the Islamic Republic of Iran and 
Sri Lanka reported 239 mt of oceanic whitetip sharks caught by gillnets 
that fall under the definition of ``artisanal fisheries.'' 
Additionally, while some no[hyphen]retention measures ban the ``selling 
or offering for sale'' of any products from the specified shark 
species, the IOTC oceanic whitetip shark measure does not (Clarke 
2013). Further, this measure is not binding on India, which is one of 
the main oceanic whitetip shark catching countries identified by the 
IOTC in the Indian Ocean. Finally, IOTC Resolution 13-06 was passed as 
an interim pilot measure; therefore, it is highly uncertain as to 
whether this measure will be ongoing into the foreseeable future. As a 
result, it appears that the retention ban of oceanic whitetip in the 
Indian Ocean is limited in scope relative to other RFMO no-retention 
measures, and only

[[Page 96323]]

partially protective depending on whether the measure is adequately 
implemented and enforced. For example, in Indonesia, which is the 
largest shark fishing nation in the world, oceanic whitetip sharks are 
protected in order to comply with IOTC Resolution 13-06. However, 
evidence suggests that this Resolution may not be strictly adhered to. 
For instance, in a genetic barcoding study of shark fin samples 
throughout traditional fish markets in Indonesia from mid-2012 to mid-
2014, oceanic whitetip shark was identified as present (Sembiring et 
al., 2015) despite being prohibited in 2013. In addition, authorities 
confiscated around 3,000 oceanic whitetip shark fins from sharks caught 
in waters near Java Island as recent as October 2015 (South China 
Morning Post 2015). Thus, while it generally appears that the IOTC has 
increased its number of management measures for sharks, including the 
oceanic whitetip, these regulations are likely inadequate to prevent 
further population declines of the oceanic whitetip shark in this 
region as a result of overutilization.
    It is clear that many countries and RFMOs have implemented shark 
finning bans or have prohibited the sale or trade of shark fins or 
products, and have even prohibited the retention of oceanic whitetip 
sharks in their respective fisheries, with declining trends in finning 
and catches of oceanic whitetip sharks evident in some locations as a 
result of these regulations (e.g., Fiji, Australia and the United 
States; see Young et al., 2016 for more details). It also evident that 
the international trade in shark fins may be gradually slowing. In 
fact, as described previously, the trade in shark fins through China, 
Hong Kong SAR, which has served as an indicator of the global trade for 
many years, fell by 22 percent in 2012. Additionally, current 
indications are that the shark fin trade through Hong Kong SAR and 
China will continue to contract (Dent & Clarke 2015). However, although 
the overall situation regarding the shark fin trade appears to be 
improving due to current regulations (e.g., increasing number of 
finning bans) and trends (e.g., waning demand for shark fins), and it 
may not be as severe a threat to some species of sharks compared to 
others, evidence suggests that oceanic whitetip fins are considered to 
be preferred or ``first choice'' in the Hong Kong market (Vannuccini 
1999; E-CoP16Prop.42 2013) and the high demand for oceanic whitetip 
fins is ongoing. This is evidenced by recent genetic studies that 
confirm the presence of oceanic whitetip shark fins in several markets 
throughout its range, as well as several recent incidents of illegal 
finning and trafficking of oceanic whitetip fins despite national and 
international regulations. For example, in February 2013, oceanic 
whitetip fins were found in a large seizure of fins from a Taiwanese 
vessel illegally fishing in the Marshall Islands. In 2014, illegal 
oceanic whitetip shark fins were discovered in a random sample 
inspection of three 40 kg sacks slated for export from Costa Rica to 
Hong Kong (Tico Times 2014). Additionally, and as previously noted, 
Indonesian authorities seized 3,000 shark fins belonging to oceanic 
whitetip sharks that were reportedly caught in waters around Java 
Island in October 2015. The fins, which were about to be flown to Hong 
Kong, were seized at the international airport that serves the capital 
Jakarta. This haul was worth an estimated U.S. $72,000 in Indonesia, 
but would reportedly fetch several times that amount in Hong Kong 
(South China Morning Post 2015). Therefore, it is clear that the 
oceanic whitetip shark is subject to illegal fishing and trafficking, 
particularly for its valuable fins. Given the recent downturn in the 
shark fin trade (Dent & Clarke, 2015; Eriksson & Clarke 2015), the 
threat of this IUU fishing for the sole purpose of shark fins may not 
be as significant into the future. However, based on the best available 
information on the species' declining population trends throughout its 
range, as well as current utilization levels, the present mortality 
rates associated with illegal fishing and its impacts on oceanic 
whitetip shark populations may be contributing to the overutilization 
of the species. Therefore, based on the foregoing information, the ERA 
team concluded that despite national and international regulations to 
protect the oceanic whitetip, illegal finning and exportation 
activities are ongoing. As such, and based on the best available 
information, existing regulatory mechanisms to control for 
overutilization by the shark fin trade are likely inadequate to 
significantly reduce this threat to the oceanic whitetip shark at this 
time.
    Overall, and based on the above review of regulatory measures (in 
addition to the regulations described in Young et al., 2016), the ERA 
team concluded, and we agree, that existing regulatory mechanisms to 
control for overutilization are largely inadequate to significantly 
reduce this global threat to the oceanic whitetip shark at this time. 
The ERA team acknowledged that in some locations, regulatory measures 
may be effective for reducing the threat of overutilization to some 
degree. For example, as noted in the U.S. Domestic Regulatory 
Mechanisms section, in the U.S. Northwest Atlantic and Pacific Island 
States and Territories oceanic whitetip sharks are managed under 
comprehensive management plans and regulations with trip limits, 
quotas, logbook and protected species requirements, and other various 
fishing restrictions. In the Northwest Atlantic, oceanic whitetip 
sharks are managed under the pelagic species complex of the Atlantic 
HMS FMP, with commercial quotas imposed that restrict the overall level 
of oceanic whitetip sharks taken in this part of its range. Pelagic 
longline gear is heavily managed and strictly monitored. The use of 
pelagic longline gear (targeting swordfish, tuna and/or shark) also 
requires specific permits, with all required permits administered under 
a limited access program. Presently, no new permits are being issued; 
thus, persons wishing to enter the fishery may only obtain these 
permits by transferring the permit from a permit holder who is leaving 
the fishery, and transferees are currently subject to vessel upgrading 
restrictions. These national regulations, as detailed in the 2006 
Consolidated HMS FMP and described in this Status Review Report, 
combined with ICCAT's Recommendation 10-07 on the retention prohibition 
of oceanic whitetip shark, have likely led to the recent stabilization 
of the Northwest Atlantic population. In Hawaii, finning and no-
retention regulations have resulted in a significant decline in the 
number of oceanic whitetip sharks finned and an increase in the number 
of sharks released alive. Thus, these U.S. conservation and management 
measures in and of themselves are not inadequate such that they 
contribute to the extinction risk of the oceanic whitetip shark by 
increasing demographic risks (e.g., further abundance declines) or the 
threat of overutilization (e.g., unsustainable catch rates) currently 
and in the foreseeable future. However, the oceanic whitetip shark is 
highly migratory and often moves beyond U.S. jurisdiction. For example, 
in just one tagging study conducted in the Northwest Atlantic, five 
tagged oceanic whitetip sharks made transboundary movements, spending 
time in waters managed by different countries (United States, Cuba, and 
several of the windward Caribbean islands) or the high seas that are 
managed by international bodies (Howey-Jordan et al. 2013). 
Additionally, the ERA team emphasized that regulatory mechanisms

[[Page 96324]]

to control for overutilization of the species are largely inadequate 
throughout the rest of the species' global range. Therefore, based on 
the best available information, and given the significant global 
abundance declines of the oceanic whitetip shark as a result of 
overutilization, the inadequacy of existing regulatory mechanisms is 
likely a threat contributing to the species' risk of extinction 
throughout its range.

Overall Risk Summary

    Guided by the results and discussions from the demographic risk 
analysis and threats assessment, the ERA team members used their 
informed professional judgment to make an overall extinction risk 
determination for the oceanic whitetip shark now and in the foreseeable 
future. The ERA team concluded, and we agree, that the oceanic whitetip 
shark currently has a ``moderate'' risk of extinction globally. The ERA 
team was fairly confident in determining the overall level of 
extinction risk of the oceanic whitetip shark, placing more than half 
of their likelihood points in the ``moderate risk'' category. To 
express some uncertainty, particularly regarding the lack of robust 
abundance trends and catch data for populations in certain areas (e.g., 
South Atlantic and Indian Ocean), as well as potential stabilizing 
trends observed in two areas (e.g., Northwest Atlantic and Hawaii), the 
team placed some of their likelihood points in the ``low risk'' and 
``high risk'' categories as well. Likelihood points attributed to the 
overall level of extinction risk categories were as follows: Low Risk 
(20/60), Moderate Risk (34/60), High Risk (6/60). The ERA team 
reiterated that the once abundant and ubiquitous oceanic whitetip shark 
has likely experienced significant historical population declines 
throughout its global range, with multiple data sources and analyses, 
including a stock assessment and trends in relative abundance, 
suggesting declines greater than 70-80 percent in most areas. The ERA 
team concluded that declining abundance trends of varying magnitudes 
are likely ongoing in all three ocean basins.
    In terms of threats to the species, the ERA team noted that the 
most significant threat to the continued existence of the oceanic 
whitetip shark in the foreseeable future is ongoing and significantly 
high rates of fishing mortality driven by demands of the international 
trade in shark fins and meat, as well as impacts related to incidental 
bycatch and IUU fishing. The ERA team emphasized that the oceanic 
whitetip shark's vertical and horizontal distribution significantly 
increases its exposure to industrial fisheries, including pelagic 
longline and purse seine fisheries operating within the species' core 
tropical habitat throughout its global range. In addition to declines 
in oceanic whitetip catches throughout its range, there is also 
evidence of declining average size over time in some areas, which is 
particularly concerning given evidence that litter size is potentially 
correlated with maternal length. With such extensive declines in the 
species' global abundance and the ongoing threat of overutilization, 
the species' slow growth and relatively low fecundity may limit its 
ability for compensation. Related to this, the low genetic diversity of 
oceanic whitetip is also cause for concern and a viable risk over the 
foreseeable future for this species. This is particularly concerning 
since it is possible (though uncertain) that a reduction in genetic 
diversity following the large reduction in population size due to 
overutilization has not yet manifested in the species. Loss of genetic 
diversity can lead to reduced fitness and a limited ability to adapt to 
a rapidly changing environment, thus increasing the species' overall 
risk of extinction.
    Finally, the species' extensive distribution, ranging across entire 
oceans and across multiple international boundaries complicates 
management of the species. The ERA team agreed that implementation and 
enforcement of management measures that could reduce the threat of 
overutilization to the species are likely highly variable and/or 
lacking altogether across the species' range. The ERA team acknowledged 
a significant increase in species-specific management measures to 
control for overutilization of oceanic whitetip shark across its range; 
however, the ERA team also noted that most of these regulations, 
particularly the retention prohibitions enacted by all relevant RFMOs 
throughout the range of the species, are too new to truly determine 
their efficacy in reducing mortality of oceanic whitetip shark. Despite 
this limitation, and with the exception of the Northwest Atlantic and 
Pacific Island States and Territories, the ERA team was not confident 
in the adequacy of these regulations to reduce the threat of 
overutilization and prevent further abundance declines in the 
foreseeable future. First, the ERA team discussed the fact that 
retention prohibitions do not prevent at-vessel and post-release 
mortality, which is likely high in some fisheries. In addition, the 
biggest concern to the ERA team with regard to these regulatory 
mechanisms going forward is the lack of full implementation and 
enforcement. The ERA team noted that proper implementation and 
enforcement of these regulations would likely result in a reduction in 
overall mortality of the species over time. However, the best available 
information suggests that this may not currently be the case. Given the 
species' depleted state throughout its range, the ERA team agreed that 
less than full implementation and enforcement of current regulations is 
likely undermining any conservation benefit to the species.
    Based on all of the foregoing information, which represents the 
best scientific and commercial data available regarding current 
demographic risks and threats to the species, the ERA team concluded 
that the oceanic whitetip shark currently has a moderate risk of 
extinction throughout its range. We concluded that the species does not 
currently have a high risk of extinction because of the following: The 
species has a significantly broad distribution and does not seem to 
have been extirpated in any region, even in areas where there is heavy 
harvest bycatch and utilization of the species' high-value fins; there 
appears to be a potential for relative stability in population sizes on 
the order of 5-10 years at the post-decline depressed state, as 
evidenced by the potential stabilization of two populations (e.g., NW 
Atlantic and Hawaii) at a diminished abundance, which suggests that 
this species is potentially capable of persisting at a low population 
size; and the overall reduction of the fin trade as well as increasing 
management regulations will likely reduce the threat of overutilization 
to some extent, and thus reduce the species' overall risk of 
extinction. However, given the species' significant historical and 
ongoing abundance declines of varying magnitudes in all three ocean 
basins, slow growth, low fecundity, and low genetic diversity, combined 
with ongoing threats of overutilization and largely inadequate 
regulatory mechanisms, the ERA team concluded that the oceanic whitetip 
shark currently has a moderate risk of extinction throughout its global 
range. In other words, due to significant and ongoing threats of 
overutilization and largely inadequate regulatory mechanisms, current 
trends in the species' abundance, productivity and genetic diversity 
place the species on a trajectory towards a high risk of extinction in 
the foreseeable future of ~30 years.

[[Page 96325]]

Conservation Efforts

    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into account those 
efforts, if any, being made by any State or foreign nation to protect 
the species. In judging the efficacy of protective efforts, we rely on 
the Services' joint ``Policy for Evaluation of Conservation Efforts 
When Making Listing Decisions'' (``PECE;'' 68 FR 15100; March 28, 
2003). The PECE is designed to guide determinations on whether any 
conservation efforts that have been recently adopted or implemented, 
but not yet proven to be successful, will result in recovering the 
species to the point at which listing is not warranted or contribute to 
forming a basis for listing a species as threatened rather than 
endangered. The purpose of the PECE is to ensure consistent and 
adequate evaluation of future or recently implemented conservation 
efforts identified in conservation agreements, conservation plans, 
management plans, and similar documents developed by Federal agencies, 
State and local governments, Tribal governments, businesses, 
organizations, and individuals when making listing decisions. The PECE 
provides direction for the consideration of such conservation efforts 
that have not yet been implemented, or have been implemented but have 
not yet demonstrated effectiveness. The policy is expected to 
facilitate the development by states and other entities of conservation 
efforts that sufficiently improve a species' status so as to make 
listing the species as threatened or endangered unnecessary. The PECE 
established two basic criteria: (1) The certainty that the conservation 
efforts will be implemented, and (2) the certainty that the efforts 
will be effective. Satisfaction of the criteria for implementation and 
effectiveness establishes a given protective effort as a candidate for 
consideration, but does not mean that an effort will ultimately change 
the risk assessment for the species. Overall, the PECE analysis 
ascertains whether the formalized conservation effort improves the 
status of the species at the time a listing determination is made.
    The concern regarding the practice of finning and its effect on 
global shark populations has been growing both domestically and 
internationally. Notably, the push to stop shark finning and curb the 
trade of shark fins is evident overseas and even in Asian countries, 
where the demand for shark fin soup is highest. For example, in a 
recent report from WildAid, Whitcraft et al. (2014) reported the 
following regarding the declining demand for shark fins: An 82 percent 
decline in sales reported by shark fin vendors in Guangzhou, China and 
a decrease in prices (47 percent retail and 57 percent wholesale) over 
the past 2 years; 85 percent of Chinese consumers surveyed online said 
they gave up shark fin soup within the past 3 years, and two-thirds of 
these respondents cited awareness campaigns as a reason for ending 
their shark fin consumption; 43 percent of consumers responded that 
much of the shark fin in the market is fake; 24 airlines, 3 shipping 
lines, and 5 hotel groups have banned shark fins from their operations; 
there has been an 80 percent decline from 2007 levels in prices paid to 
fishermen in Tanjung Luar and Lombok in Indonesia and a decline of 19 
percent since 2002-2003 in Central Maluku, Southeastern Maluku and East 
Nusa Tenggara; and of 20 Beijing restaurant representatives 
interviewed, 19 reported a significant decline in shark fin 
consumption. While there seems to be a growing trend to prohibit and 
discourage shark finning domestically and internationally, it is 
difficult to predict at this time whether the trend will be effective 
in reducing the threat of overutilization to the oceanic whitetip 
shark. Nonetheless, we conclude that these conservation measures are 
not likely to be effective in reducing current threats to oceanic 
whitetip shark to the point that listing would no longer be warranted.
    There are also many other smaller national and international 
organizations with shark-focused goals that include advocating the 
conservation of sharks through education and campaign programs and 
conducting shark research to fill data gaps regarding the status of 
shark species. Some of these organizations include: The Pew Environment 
Group, Oceana, Ocean Conservancy, Shark Trust, Bite-Back, Shark 
Project, Pelagic Shark Research Foundation, Shark Research Institute, 
and Shark Savers. More information on the specifics of these programs 
and groups can be found on their Web sites. Important research on 
oceanic whitetip sharks is also being conducted in a joint partnership 
by Nova Southeastern University and the Guy Harvey Research Institute. 
To facilitate conservation and management efforts for oceanic whitetip 
sharks, the Guy Harvey Research Institute/Guy Harvey Ocean Foundation 
and their project partners are using integrative approaches to 
investigate the population connectivity of this species, including 
ongoing studies of the global stock structure of oceanic whitetip 
sharks by using genetic techniques, as well as migration patterns of 
this species in the western Atlantic with the aid of satellite tracking 
technologies. All of these conservation efforts and non-regulatory 
mechanisms are beneficial to the persistence of the oceanic whitetip 
shark. The implementation of many of these efforts, especially the 
shark research programs, will help to fill current data gaps in oceanic 
whitetip abundance, genetics, and movement patterns, which can 
ultimately help inform other conservation and management measures. 
However, it is too soon to tell whether the collective conservation 
efforts of both non-governmental and academic organizations will be 
effective in reducing threats to the species, particularly those 
related to overutilization of the oceanic whitetip shark.

Proposed 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 independently reviewed the best available 
scientific and commercial information, including the petition, public 
comments submitted on the 90-day finding (81 FR 1376; January 12, 
2016), the status review report (Young et al., 2016), and other 
published and unpublished information, and we have consulted with 
species experts and individuals familiar with the oceanic whitetip 
shark. We considered each of the section 4(a)(1) factors to determine 
whether it contributed significantly to the extinction risk of the 
species on its own. We also considered the combination of those factors 
to determine whether they collectively contributed significantly to the 
extinction risk of the species. Therefore, our determination set forth 
below is based on a synthesis and integration of the foregoing 
information, factors and considerations, and their effects on the 
status of the species throughout its range. With respect to the term 
``foreseeable future,'' we accept the ERA team's definition and 
rationale of approximately 30 years as reasonable for the reliable 
prediction of threats on the biological status of the species. That 
rationale for a foreseeable future of approximately 30 years was 
provided in detail previously (refer back to the

[[Page 96326]]

Assessment of Extinction Risk--Methods section of this proposed rule).
    We conclude that the oceanic whitetip shark is not presently in 
danger of extinction, but is likely to become so in the foreseeable 
future throughout all of its range. We summarize the factors supporting 
this conclusion as follows: (1) The best available information 
indicates that the species has experienced significant and ongoing 
abundance declines in all three ocean basins (i.e., globally); (2) 
oceanic whitetip sharks possess life history characteristics that 
increase their vulnerability to harvest, including slow growth, 
relatively late age of maturity, and low fecundity; (3) the species' 
low genetic diversity in concert with steep global abundance declines 
and ongoing threats of overutilization may pose a viable risk to the 
species in the foreseeable future; (4) due to the species' preferred 
vertical and horizontal habitat, the oceanic whitetip shark is 
extremely susceptible to incidental capture in both longline and purse 
seine fisheries throughout its range, and thus experiences substantial 
levels of fishing mortality from these fisheries; (5) the oceanic 
whitetip shark is a preferred species in the international fin market 
for its large, morphologically distinct fins, which incentivizes the 
retention and/or finning of the species; and (6) despite the increasing 
number of regulations for the conservation of the species, existing 
regulatory mechanisms are largely inadequate for addressing the most 
important threat of overutilization throughout a large portion of the 
species' range. We conclude that the species is not presently in danger 
of extinction as a result of the following supporting factors: (1) The 
species is broadly distributed over a large geographic range, and does 
not seem to have been extirpated in any region, even in areas where 
there is heavy harvest bycatch and utilization of the species' high-
value fins; (2) there appears to be a potential for relative stability 
in population sizes on the order of 5-10 years at the post-decline 
depressed state, as evidenced by the potential stabilization of two 
populations (e.g., NW Atlantic and Hawaii) at a diminished abundance, 
which suggests that this species is potentially capable of persisting 
at a low population size; (3) there is no evidence of a range 
contraction and there is no evidence of habitat loss or destruction; 
(4) the overall reduction of the fin trade as well as increasing 
management regulations will likely reduce the threat of overutilization 
to some extent in the foreseeable future, and thus reduce the species' 
current overall risk of extinction; (5) there is no evidence that 
disease or predation are contributing to an increased risk of 
extinction of the species; and (6) there is no evidence that other 
natural or manmade factors are contributing to an increased risk of 
extinction of the species.
    As a result of the foregoing findings, which are based on the best 
scientific and commercial data available, we conclude that while the 
oceanic whitetip shark is not presently in danger of extinction 
throughout all or a significant portion of its range, it is likely to 
become so within the foreseeable future. Accordingly, the oceanic 
whitetip shark meets the definition of a threatened species, and thus, 
the oceanic whitetip shark warrants listing as a threatened species at 
this time.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include the development and implementation of 
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if 
prudent and determinable (16 U.S.C. 1533(a)(3)(A)); a requirement that 
Federal agencies consult with NMFS under section 7 of the ESA to ensure 
their actions do not jeopardize the species or result in adverse 
modification or destruction of designated critical habitat (16 U.S.C. 
1536); and prohibitions on ``taking'' (16 U.S.C. 1538). Recognition of 
the species' plight through listing may also promote conservation 
actions by Federal and state agencies, foreign entities, private 
groups, and individuals.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/FWS 
regulations require Federal agencies to confer with us on actions 
likely to jeopardize the continued existence of species proposed for 
listing, or that result in the destruction or adverse modification of 
proposed critical habitat. If a proposed species is ultimately listed, 
Federal agencies must consult on any action they authorize, fund, or 
carry out if those actions may affect the listed species or its 
critical habitat and ensure that such actions do not jeopardize the 
species or result in adverse modification or destruction of critical 
habitat should it be designated. Examples of Federal actions that may 
affect the oceanic whitetip shark include, but are not limited to: 
Alternative energy projects, discharge of pollution from point sources, 
non-point source pollution, contaminated waste and plastic disposal, 
dredging, pile-driving, development of water quality standards, vessel 
traffic, military activities, and fisheries management practices.

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 the oceanic whitetip shark 
in a separate rule. Public input on features and areas in U.S. waters 
that may meet the definition of critical habitat for the oceanic 
whitetip shark is invited.

Protective Regulations Under Section 4(d) of the ESA

    We are proposing to list the oceanic whitetip shark, Carcharhinus 
longimanus, as a threatened species under the ESA. In the case of 
threatened species, ESA section 4(d) leaves it to the Secretary's 
discretion whether, and to what extent, to extend the section 9(a) 
``take'' prohibitions to the species, and authorizes us to issue 
regulations necessary and advisable for the conservation of the 
species. Thus, we have flexibility under section 4(d) to tailor 
protective regulations based on the needs of and threats to the 
species. The section 4(d) protective regulations may prohibit, with 
respect to threatened species, some or all of the acts which section 
9(a) of the ESA prohibits with respect to endangered species. We are

[[Page 96327]]

not proposing such regulations at this time, but may consider potential 
protective regulations pursuant to section 4(d) for the oceanic 
whitetip in a future rulemaking. In order to inform our consideration 
of appropriate protective regulations for the species, we seek 
information from the public on the threats to oceanic whitetip shark 
and possible measures for their conservation.

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. In December 
2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review establishing minimum peer 
review standards, a transparent process for public disclosure of peer 
review planning, and opportunities for public participation. The OMB 
Bulletin, implemented under the Information Quality Act (Pub. L. 106-
554), is intended to enhance the quality and credibility of the Federal 
government's scientific information, and applies to influential or 
highly influential scientific information disseminated on or after June 
16, 2005. To satisfy our requirements under the OMB Bulletin, we 
obtained independent peer review of the status review report. 
Independent specialists were selected from the academic and scientific 
community for this review. All peer reviewer comments were addressed 
prior to dissemination of the final status review report and 
publication of this proposed rule.

Public Comments Solicited on Listing

    To ensure that the final action resulting from this proposal will 
be as accurate and effective as possible, we solicit comments and 
suggestions from the public, other governmental agencies, the 
scientific community, industry, environmental groups, and any other 
interested parties. Comments are encouraged on this proposal (See DATES 
and ADDRESSES). Specifically, we are interested in information 
regarding: (1) New or updated information regarding the range, 
distribution, and abundance of the oceanic whitetip shark; (2) new or 
updated information regarding the genetics and population structure of 
the oceanic whitetip shark; (3) habitat within the range of the oceanic 
whitetip shark that was present in the past, but may have been lost 
over time; (4) new or updated biological or other relevant data 
concerning any threats to the oceanic whitetip shark (e.g., post-
release mortality rates, finning rates in commercial fisheries, etc.); 
(5) current or planned activities within the range of the oceanic 
whitetip shark and their possible impact on the species; (6) recent 
observations or sampling of the oceanic whitetip shark; and (7) efforts 
being made to protect the oceanic whitetip shark.

Public Comments Solicited on Critical Habitat

    We request quantitative evaluations describing the quality and 
extent of habitats for the oceanic whitetip shark, as well as 
information on areas that may qualify as critical habitat for the 
species in U.S. waters. Specific areas that include the physical and 
biological features essential to the conservation of the species, where 
such features may require special management considerations or 
protection, should be identified. Areas outside the occupied 
geographical area should also be identified, if such areas themselves 
are essential to the conservation of the species. ESA implementing 
regulations at 50 CFR 424.12(g) specify that critical habitat shall not 
be designated within foreign countries or in other areas outside of 
U.S. jurisdiction. Therefore, we request information only on potential 
areas of critical habitat within waters under U.S. jurisdiction.
    Section 4(b)(2) of the ESA requires the Secretary to consider the 
``economic impact, impact on national security, and any other relevant 
impact'' of designating a particular area as critical habitat. Section 
4(b)(2) also authorizes the Secretary to exclude from a critical 
habitat designation those particular areas where the Secretary finds 
that the benefits of exclusion outweigh the benefits of designation, 
unless excluding that area will result in extinction of the species. 
For features and areas potentially qualifying as critical habitat, we 
also request information describing: (1) Activities or other threats to 
the essential features or activities that could be affected by 
designating them as critical habitat; and (2) the positive and negative 
economic, national security and other relevant impacts, including 
benefits to the recovery of the species, likely to result if these 
areas are designated as critical habitat. We seek information regarding 
the conservation benefits of designating areas within waters under U.S. 
jurisdiction as critical habitat. In keeping with the guidance provided 
by OMB (2000; 2003), we seek information that would allow the 
monetization of these effects to the extent possible, as well as 
information on qualitative impacts to economic values.
    Data reviewed may include, but are not limited to: (1) Scientific 
or commercial publications; (2) administrative reports, maps or other 
graphic materials; (3) information received from experts; and (4) 
comments from interested parties. Comments and data particularly are 
sought concerning: (1) Maps and specific information describing the 
amount, distribution, and use type (e.g., foraging or migration) by the 
oceanic whitetip shark, as well as any additional information on 
occupied and unoccupied habitat areas; (2) the reasons why any habitat 
should or should not be determined to be critical habitat as provided 
by sections 3(5)(A) and 4(b)(2) of the ESA; (3) information regarding 
the benefits of designating particular areas as critical habitat; (4) 
current or planned activities in the areas that might be proposed for 
designation and their possible impacts; (5) any foreseeable economic or 
other potential impacts resulting from designation, and in particular, 
any impacts on small entities; (6) whether specific unoccupied areas 
may be essential to provide additional habitat areas for the 
conservation of the species; and (7) potential peer reviewers for a 
proposed critical habitat designation, including persons with 
biological and economic expertise relevant to the species, region, and 
designation of critical habitat. We seek information regarding critical 
habitat for the oceanic whitetip shark as soon as possible, but no 
later than March 29, 2017.

Public Hearings

    If requested by the public by February 13, 2017, hearings will be 
held regarding the proposal to list the oceanic whitetip shark as a 
threatened species under the ESA. If hearings are requested, details 
regarding location(s), date(s), and time(s) will be published in a 
subsequent Federal Register notice.

References

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

Classification

National Environmental Policy Act

    Section 4(b)(1)(A) of the ESA restricts the information that may be 
considered when assessing species for listing and sets the basis upon 
which listing determinations must be made. Based on the requirements in 
section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal 
Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), we have concluded 
that ESA listing actions are not subject to the environmental 
assessment requirements

[[Page 96328]]

of the National Environmental Policy Act (NEPA).

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 proposed rule is exempt from review under 
Executive Order 12866. This proposed rule does not contain a 
collection-of-information requirement for the purposes of the Paperwork 
Reduction Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule does not have significant Federalism effects and that a Federalism 
assessment is not required. In keeping with the intent of the 
Administration and Congress to provide continuing and meaningful 
dialogue on issues of mutual state and Federal interest, this proposed 
rule will be given to the relevant state agencies in each state in 
which the species is believed to occur, and those states will be 
invited to comment on this proposal. We have considered, among other 
things, Federal, state, and local conservation measures. As we proceed, 
we intend to continue engaging in informal and formal contacts with the 
state, and other affected local or regional entities, giving careful 
consideration to all written and oral comments received.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: December 22, 2016.
Samuel D Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be 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. 1531-1543; 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, in paragraph (e), add a new entry for ``Shark, 
oceanic whitetip'' under Fishes in alphabetical order by Common Name to 
read as follows:


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                          Species \1\
---------------------------------------------------------------  Citation(s) for     Critical
                                                Description of       listing          habitat        ESA rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
           Fishes
 
                                                  * * * * * * *
Shark, oceanic whitetip.....  Carcharhinus     Entire species.  [Insert Federal               NA              NA
                               longimanus.                       Register page
                                                                 where the
                                                                 document
                                                                 begins],
                                                                 [Insert date of
                                                                 publication
                                                                 when published
                                                                 as a final
                                                                 rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2016-31460 Filed 12-28-16; 8:45 am]
BILLING CODE 3510-22-P



                                                      96304               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      DEPARTMENT OF COMMERCE                                  #!docketDetail;D=NOAA-NMFS-2015-                      review of the species, as required by
                                                                                                              0152, click the ‘‘Comment Now!’’ icon,                section 4(b)(3)(a) of the ESA, and
                                                      National Oceanic and Atmospheric                        complete the required fields, and enter               requested information to inform the
                                                      Administration                                          or attach your comments.                              agency’s decision on whether the
                                                                                                                • Mail: Submit written comments to                  species warranted listing as endangered
                                                      50 CFR Part 223                                         Chelsey Young, NMFS Office of                         or threatened under the ESA.
                                                      [Docket No. 151110999–6999–02]                          Protected Resources (F/PR3), 1315 East
                                                                                                                                                                    Listing Species Under the Endangered
                                                                                                              West Highway, Silver Spring, MD
                                                      RIN 0648–XE314                                                                                                Species Act
                                                                                                              20910, USA. Attention: Oceanic
                                                                                                              whitetip proposed rule.                                  We are responsible for determining
                                                      Endangered and Threatened Wildlife                        Instructions: Comments sent by any                  whether species are threatened or
                                                      and Plants; Proposed Threatened                         other method, to any other address or                 endangered under the ESA (16 U.S.C.
                                                      Listing Determination for the Oceanic                   individual, or received after the end of              1531 et seq.). To make this
                                                      Whitetip Shark Under the Endangered                     the comment period, may not be                        determination, we first consider
                                                      Species Act (ESA)                                       considered by NMFS. All comments                      whether a group of organisms
                                                      AGENCY:  National Marine Fisheries                      received are a part of the public record              constitutes a ‘‘species’’ under section 3
                                                      Service (NMFS), National Oceanic and                    and will generally be posted for public               of the ESA, then whether the status of
                                                      Atmospheric Administration (NOAA),                      viewing on www.regulations.gov                        the species qualifies it for listing as
                                                      Commerce.                                               without change. All personal identifying              either threatened or endangered. Section
                                                                                                              information (e.g., name, address, etc.),              3 of the ESA defines species to include
                                                      ACTION: Proposed rule; request for
                                                                                                              confidential business information, or                 ‘‘any subspecies of fish or wildlife or
                                                      comments.                                                                                                     plants, and any distinct population
                                                                                                              otherwise sensitive information
                                                      SUMMARY:    NMFS has completed a                        submitted voluntarily by the sender will              segment of any species of vertebrate fish
                                                      comprehensive status review under the                   be publicly accessible. NMFS will                     or wildlife which interbreeds when
                                                      Endangered Species Act (ESA) for the                    accept anonymous comments (enter ‘‘N/                 mature.’’ On February 7, 1996, NMFS
                                                      oceanic whitetip shark (Carcharhinus                    A’’ in the required fields if you wish to             and the U.S. Fish and Wildlife Service
                                                      longimanus) in response to a petition                   remain anonymous).                                    (USFWS; together, the Services) adopted
                                                      from Defenders of Wildlife to list the                    You can find the petition, status                   a policy describing what constitutes a
                                                      species. Based on the best scientific and               review report, Federal Register notices,              DPS of a taxonomic species (61 FR
                                                      commercial information available,                       and the list of references electronically             4722). The joint DPS policy identified
                                                      including the status review report                      on our Web site at http://                            two elements that must be considered
                                                      (Young et al., 2016), and after taking                  www.nmfs.noaa.gov/pr/species/fish/                    when identifying a DPS: (1) The
                                                      into account efforts being made to                      oceanic-whitetip-shark.html. You may                  discreteness of the population segment
                                                      protect the species, we have determined                 also receive a copy by submitting a                   in relation to the remainder of the
                                                      that the oceanic whitetip shark warrants                request to the Office of Protected                    species (or subspecies) to which it
                                                      listing as a threatened species. We                     Resources, NMFS, 1315 East-West                       belongs; and (2) the significance of the
                                                      conclude that the oceanic whitetip                      Highway, Silver Spring, MD 20910,                     population segment to the remainder of
                                                      shark is likely to become endangered                    Attention: Oceanic whitetip proposed                  the species (or subspecies) to which it
                                                      throughout all or a significant portion of              rule.                                                 belongs.
                                                                                                                                                                       Section 3 of the ESA defines an
                                                      its range within the foreseeable future.                FOR FURTHER INFORMATION CONTACT:                      endangered species as ‘‘any species
                                                      Any protective regulations determined                   Chelsey Young, NMFS, Office of                        which is in danger of extinction
                                                      to be necessary and advisable for the                   Protected Resources, (301) 427–8403.                  throughout all or a significant portion of
                                                      conservation of the species under ESA
                                                                                                              SUPPLEMENTARY INFORMATION:                            its range’’ and a threatened species as
                                                      section 4(d) would be proposed in a
                                                                                                                                                                    one ‘‘which is likely to become an
                                                      subsequent Federal Register                             Background
                                                                                                                                                                    endangered species within the
                                                      announcement. Should the proposed                          On September 21, 2015, we received                 foreseeable future throughout all or a
                                                      listing be finalized, we would also                     a petition from Defenders of Wildlife to              significant portion of its range.’’ Thus,
                                                      designate critical habitat for the species,             list the oceanic whitetip shark                       in the context of the ESA, the Services
                                                      to the maximum extent prudent and                       (Carcharhinus longimanus) as                          interpret an ‘‘endangered species’’ to be
                                                      determinable. We solicit information to                 threatened or endangered under the                    one that is presently at risk of
                                                      assist in this listing determination, the               ESA throughout its entire range, or, as               extinction. A ‘‘threatened species,’’ on
                                                      development of proposed protective                      an alternative, to list two distinct                  the other hand, is not currently at risk
                                                      regulations, and the designation of                     population segments (DPSs) of the                     of extinction, but is likely to become so
                                                      critical habitat in the event this                      oceanic whitetip shark, as described in               in the foreseeable future. In other words,
                                                      proposed listing determination is                       the petition, as threatened or                        a key statutory difference between a
                                                      finalized.                                              endangered, and to designate critical                 threatened and endangered species is
                                                      DATES: Comments on this proposed rule                   habitat. We found that the petitioned                 the timing of when a species may be in
                                                      must be received by March 29, 2017.                     action may be warranted for the species;              danger of extinction, either now
                                                      Public hearing requests must be                         on January 12, 2016, we published a                   (endangered) or in the foreseeable future
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      requested by February 13, 2017.                         positive 90-day finding for the oceanic               (threatened). The statute also requires us
                                                      ADDRESSES: You may submit comments                      whitetip shark (81 FR 1376),                          to determine whether any species is
                                                      on this document, identified by NOAA–                   announcing that the petition presented                endangered or threatened as a result of
                                                      NMFS–2015–0152, by either of the                        substantial scientific or commercial                  any of the following five factors: The
                                                      following methods:                                      information indicating the petitioned                 present or threatened destruction,
                                                         • Electronic Submissions: Submit all                 action of listing the species may be                  modification, or curtailment of its
                                                      electronic comments via the Federal                     warranted range wide, and explaining                  habitat or range; overutilization for
                                                      eRulemaking Portal. Go to                               the basis for those findings. We also                 commercial, recreational, scientific, or
                                                      www.regulations.gov/                                    announced the initiation of a status                  educational purposes; disease or


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                           96305

                                                      predation; the inadequacy of existing                   www.nmfs.noaa.gov/pr/species/fish/                    tips on its front dorsal, caudal, and
                                                      regulatory mechanisms; or other natural                 oceanic-whitetip-shark.html.                          pectoral fins with black tips on its anal
                                                      or manmade factors affecting its                           The status review report was                       fin and on the ventral surfaces of its
                                                      continued existence (ESA, section                       subjected to independent peer review as               pelvic fins. The head has a short and
                                                      4(a)(1)(A)–(E)). Section 4(b)(1)(A) of the              required by the Office of Management                  bluntly rounded nose and small circular
                                                      ESA requires us to make listing                         and Budget Final Information Quality                  eyes with nictitating membranes. The
                                                      determinations based solely on the best                 Bulletin for Peer Review (M–05–03;                    upper jaw contains broad, triangular
                                                      scientific and commercial data available                December 16, 2004). The status review                 serrated teeth, while the teeth in the
                                                      after conducting a review of the status                 report was peer reviewed by five                      lower jaw are more pointed and are only
                                                      of the species and after taking into                    independent specialists selected from                 serrated near the tip. The body is
                                                      account efforts being made by any State                 the academic and scientific community,                grayish bronze to brown in color, but
                                                      or foreign nation or political subdivision              with expertise in shark biology,                      varies depending upon geographic
                                                      thereof to protect the species. In                      conservation and management, and                      location. The underside is whitish with
                                                      evaluating the efficacy of existing                     specific knowledge of oceanic whitetip                a yellow tinge on some individuals
                                                      protective efforts, we rely on the                      sharks. The peer reviewers were asked                 (Compagno 1984).
                                                      Services’ joint Policy on Evaluation of                 to evaluate the adequacy,                             Current Distribution
                                                      Conservation Efforts When Making                        appropriateness, and application of data
                                                      Listing Decisions (‘‘PECE’’; 68 FR 15100;               used in the status review as well as the                 The oceanic whitetip shark is
                                                      March 28, 2003) for any conservation                    findings made in the ‘‘Assessment of                  distributed worldwide in epipelagic
                                                      efforts that have not been implemented,                 Extinction Risk’’ section of the report.              tropical and subtropical waters between
                                                      or have been implemented but have not                   All peer reviewer comments were                       30° North latitude and 35° South
                                                      yet demonstrated effectiveness.                         addressed prior to finalizing the status              latitude (Baum et al., 2006). In the
                                                                                                              review report.                                        western Atlantic, oceanic whitetips
                                                      Status Review                                                                                                 occur from Maine to Argentina,
                                                                                                                 We subsequently reviewed the status
                                                         We convened a team of agency                         review report, its cited references, and              including the Caribbean and Gulf of
                                                      scientists to conduct the status review                 peer review comments, and believe the                 Mexico. In the central and eastern
                                                      for the oceanic whitetip shark and                      status review report, upon which this                 Atlantic, the species occurs from
                                                      prepare a report. The status review                     proposed rule is based, provides the                  Madeira, Portugal south to the Gulf of
                                                      report of the oceanic whitetip shark                    best available scientific and commercial              Guinea, and possibly in the
                                                      (Young et al., 2016) compiles the best                  information on the oceanic whitetip                   Mediterranean Sea. In the western
                                                      available information on the status of                  shark. Much of the information                        Indian Ocean, the species occurs in
                                                      the species as required by the ESA and                  discussed below on oceanic whitetip                   waters of South Africa, Madagascar,
                                                      assesses the current and future                         shark biology, distribution, abundance,               Mozambique, Mauritius, Seychelles,
                                                      extinction risk for the species, focusing               threats, and extinction risk is                       India, and within the Red Sea. Oceanic
                                                      primarily on threats related to the five                attributable to the status review report.             whitetips also occur throughout the
                                                      statutory factors set forth above. We                   However, we have independently                        Western and Central Pacific Ocean,
                                                      appointed a biologist in the Office of                  applied the statutory provisions of the               including China, Taiwan, the
                                                      Protected Resources Endangered                          ESA, including evaluation of the factors              Philippines, New Caledonia, Australia
                                                      Species Conservation Division to                        set forth in section 4(a)(1)(A)–(E), our              (southern Australian coast), Hawaiian
                                                      undertake a scientific review of the life               regulations regarding listing                         Islands south to Samoa Islands, Tahiti
                                                      history and ecology, distribution,                      determinations, and our DPS policy in                 and Tuamotu Archipelago and west to
                                                      abundance, and threats to the oceanic                   making the 12-month finding                           the Galapagos Islands. Finally, in the
                                                      whitetip shark. Next, we convened a                                                                           eastern Pacific, the species occurs from
                                                                                                              determination.
                                                      team of biologists and shark experts                                                                          southern California to Peru, including
                                                      (hereinafter referred to as the Extinction              Life History, Biology, and Status of the              the Gulf of California and Clipperton
                                                      Risk Analysis (ERA) team) to conduct an                 Petitioned Species                                    Island (Compagno 1984).
                                                      extinction risk analysis for the species,
                                                                                                              Taxonomy and Species Description                      Habitat Use and Movement
                                                      using the information in the scientific
                                                      review. The ERA team was comprised of                      The oceanic whitetip shark belongs to                The oceanic whitetip shark is a highly
                                                      a natural resource management                           the family Carcharhinidae and is                      migratory species of shark that is
                                                      specialist from NMFS Office of                          classified as a requiem shark (Order                  usually found offshore in the open
                                                      Protected Resources, a fishery                          Carcharhiniformes). The oceanic                       ocean, on the outer continental shelf, or
                                                      management specialist from NMFS’                        whitetip belongs to the genus                         around oceanic islands in deep water,
                                                      Highly Migratory Species (HMS)                          Carcharhinus, which includes other                    occurring from the surface to at least
                                                      Management Division, and four research                  pelagic species of sharks, such as the                152 meters (m) depth. Although the
                                                      fishery biologists from NMFS’                           silky shark (Carcharhinus falciformis)                oceanic whitetip can be found in
                                                      Southeast, Northeast, Southwest, and                    and dusky shark (C. obscuras), and is                 decreasing numbers out to latitudes of
                                                      Pacific Island Fisheries Science Centers.               the only truly oceanic (i.e., pelagic)                30° N and 35° S, with abundance
                                                      The ERA team had group expertise in                     shark of its genus (Bonfil et al., 2008).             decreasing with greater proximity to
                                                      shark biology and ecology, population                   The oceanic whitetip shark has a stocky               continental shelves, it has a clear
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      dynamics, highly migratory species                      build with a large rounded first dorsal               preference for open ocean waters
                                                      management, and stock assessment                        fin and very long and wide paddle-like                between 10° S and 10° N (Backus et al.,
                                                      science. The status review report                       pectoral fins. The first dorsal fin is very           1956; Strasburg 1958; Compagno 1984;
                                                      presents the ERA team’s professional                    wide with a rounded tip, originating just             Bonfil et al., 2008). The species can be
                                                      judgment of the extinction risk facing                  in front of the rear tips of the pectoral             found in waters between 15 °C and 28
                                                      the oceanic whitetip shark but makes no                 fins. The second dorsal fin originates                °C, but it exhibits a strong preference for
                                                      recommendation as to the listing status                 over or slightly in front of the base of              the surface mixed layer in water with
                                                      of the species. The status review report                the anal fin. The species also exhibits a             temperatures above 20 °C, and is
                                                      is available electronically at http://                  distinct color pattern of mottled white               considered a surface-dwelling shark. It


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                                                      96306               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      is however, capable of tolerating colder                tagging area, tagging and pop-up sites                teleosts (72 percent) than in long-term
                                                      waters down to 7.75 °C for short periods                were relatively close to each other. In               diets (47 percent), showing a
                                                      as exhibited by brief, deep dives into the              fact, five out of eight sharks ended their            spatiotemporal difference in oceanic
                                                      mesopelagic zone below the                              tracks relatively close to their starting             whitetip feeding habits. Thus, the
                                                      thermocline (>200 m), presumably for                    points, even after traveling several                  availability of large teleost prey and
                                                      foraging (Howey-Jordan et al., 2013;                    thousand kilometers (Tolotti et al.,                  supplemental feeding from recreational
                                                      Howey et al., 2016). However,                           2015a).                                               sport fishermen may be possible
                                                      exposures to these cold temperatures are                   In the Indo-Pacific, two tagging                   mechanisms underpinning site-fidelity
                                                      not sustained (Musyl et al., 2011; Tolotti              studies of oceanic whitetip shark have                and aggregation of oceanic whitetips at
                                                      et al., 2015a) and there is some evidence               been conducted: one in the central                    this location (Madigan et al., 2015).
                                                      to suggest the species tends to withdraw                Pacific and one in the western Indian
                                                                                                                                                                    Size and Growth
                                                      from waters below 15 °C (e.g., the Gulf                 Ocean. In the central Pacific, oceanic
                                                      of Mexico in winter; Compagno 1984).                    whitetip sharks showed a complex                         Historically, the maximum length
                                                                                                              movement pattern generally restricted to              effectively measured for the oceanic
                                                         Little is known about the movement
                                                                                                              tropical waters north of the North                    whitetip was 350 cm total length (TL;
                                                      or possible migration paths of the
                                                                                                              Equatorial Countercurrent near the                    Bigelow and Schroder 1948 cited in
                                                      oceanic whitetip shark. Although the
                                                                                                              tagging location. Maximum time at                     Lessa et al., 1999), with ‘‘gigantic
                                                      species is considered highly migratory
                                                                                                              liberty was 243 days, but the largest                 individuals’’ perhaps reaching 395 cm
                                                      and capable of making long distance                                                                           TL (Compagno 1984), though
                                                                                                              linear movement was 2,314 nmi (4,285
                                                      movements, tagging data provides                                                                              Compagno’s length seems to have never
                                                                                                              km) in 95 days (Musyl et al., 2011).
                                                      evidence that this species also exhibits                                                                      been measured (Lessa et al., 1999). In
                                                                                                              Similar to previously discussed studies,
                                                      a high degree of philopatry (i.e., site                                                                       contemporary times, Lessa et al. (1999)
                                                                                                              long distance movements were also
                                                      fidelity) in some locations. To date,                                                                         recorded a maximum size of 250 cm TL
                                                                                                              observed in the Indian Ocean, with one
                                                      there have been three tagging studies                                                                         in the Southwest Atlantic, and
                                                                                                              tag that remained attached for 100 days.
                                                      conducted on oceanic whitetip sharks in                                                                       estimated a theoretical maximum size of
                                                                                                              This individual displayed extensive
                                                      the Atlantic. Mark recapture data                                                                             325 cm TL (Lessa et al., 1999), but the
                                                                                                              horizontal movement covering a
                                                      (number tagged = 645 and recaptures =                                                                         most common sizes are below 300 cm
                                                                                                              distance of approximately 6,500 km
                                                      8) from the NMFS Cooperative Shark                                                                            TL (Compagno 1984). The oceanic
                                                                                                              during the monitored period, moving
                                                      Tagging Program between 1962 and                                                                              whitetip has an estimated maximum age
                                                                                                              from the Mozambique Channel up the
                                                      2015 provide supporting evidence that                   African east coast of Somalia and then                of 17 years, with confirmed maximum
                                                      the range of movement of oceanic                        heading back down towards the                         ages of 12 and 13 years in the North
                                                      whitetip sharks is large, with potential                Seychelles (Filmalter et al., 2012).                  Pacific and South Atlantic, respectively
                                                      for transatlantic movements (Kohler et                  Overall, the available tagging data                   (Seki et al., 1998; Lessa et al., 1999).
                                                      al., 1998; NMFS, unpublished data).                     demonstrates that oceanic whitetip                    However, other information from the
                                                      Maximum time at liberty was 3.3 years                   sharks are capable of traveling great                 South Atlantic suggests the species
                                                      and the maximum distance traveled was                   distances in the pelagic environment,                 likely lives up to ∼20 years old based on
                                                      1,225 nautical miles (nmi0 (2,270                       but also show a high degree of site                   observed vertebral ring counts
                                                      kilometers (km0). These data indicate                   fidelity in some locations.                           (Rodrigues et al., 2015). Growth rates
                                                      movements from the northeastern Gulf                                                                          (growth coefficient, K) have been
                                                      of Mexico to the Atlantic Coast of                      Diet and Feeding                                      estimated similarly for both sexes and
                                                      Florida, from the Mid-Atlantic Bight to                    Oceanic whitetip sharks are high                   range from 0.075—0.099 in the
                                                      southern Cuba, from the Lesser Antilles                 trophic-level predators in open ocean                 Southwest Atlantic to 0.0852–0.103 in
                                                      west into the central Caribbean Sea,                    ecosystems feeding mainly on teleosts                 the North Pacific (Seki et al., 1998;
                                                      from east to west along the equatorial                  and cephalopods (Backus et al., 1956;                 Lessa et al., 1999; Joung et al., 2016).
                                                      Atlantic, and from off southern Brazil in               Bonfil et al., 2008), but studies have also           Using life history parameters from the
                                                      a northeasterly direction. In the                       reported that they consume sea birds,                 Southwest Atlantic, Cortés et al. (2010;
                                                      Bahamas, oceanic whitetips tagged at                    marine mammals, other sharks and rays,                2012) estimated productivity of the
                                                      Cat Island stayed within 500 km of the                  molluscs, crustaceans, and even garbage               oceanic whitetip shark, determined as
                                                      tagging site for ∼30 days before                        (Compagno 1984; Cortés 1999). Backus                 intrinsic rate of population increase (r),
                                                      dispersing across 16,422 km2 of the                     et al., (1956) recorded various fish                  to be 0.094–0.121 per year (median).
                                                      western North Atlantic. Maximum                         species in the stomachs of oceanic                    Overall, the best available data indicate
                                                      individual displacement from the                        whitetip sharks, including blackfin                   that the oceanic whitetip shark is a long-
                                                      tagging site ranged from 290–1,940 km                   tuna, barracuda, and white marlin.                    lived species (at least 20 years) and can
                                                      after times at liberty from 30–245 days,                Based on the species’ diet, the oceanic               be characterized as having relatively
                                                      with individuals moving to several                      whitetip has a high trophic level, with               low productivity (based on the Food
                                                      different destinations (e.g., the northern              a score of 4.2 out of a maximum 5.0                   and Agriculture Organization of the
                                                      Lesser Antilles, the northern Bahamas,                  (Cortés 1999). The available evidence                United Nations (FAO) productivity
                                                      and north of the Windward Passage).                     also suggests that oceanic whitetip                   indices for exploited fish species, where
                                                      Many sharks returned to the Bahamas                     sharks are opportunistic feeders. In the              r < 0.14 is considered low productivity),
                                                      after ∼150 days and estimated residency                 Bahamas, large pelagic teleosts (e.g.,                making them generally vulnerable to
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      times within the Bahamas Exclusive                      billfish, tunas, and dolphin fish) are                depletion and potentially slow to
                                                      Economic Zone (EEZ), were generally                     abundant and oceanic whitetips are                    recover from overexploitation.
                                                      high (mean=68.2 percent of time;                        anecdotally reported to feed heavily on
                                                      Howey-Jordan et al., 2013). Oceanic                     recreationally caught teleosts in this                Reproduction
                                                      whitetip sharks showed similar                          region. In a recent study of an oceanic                  Similar to other Carcharhinid species,
                                                      movement patterns and site fidelity in a                whitetip shark aggregation at Cat Island,             the oceanic whitetip shark is viviparous
                                                      tagging study conducted in Brazil.                      Bahamas, SIA-based Bayesian mixing                    (i.e., the species produces live young)
                                                      Although individuals tended to travel                   model estimates of short-term (near Cat               with placental embryonic development.
                                                      long distances before returning to the                  Island) diets showed more large pelagic               The reproductive cycle is thought to be


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                96307

                                                      biennial, giving birth on alternate years,              Auckland, New Zealand. These points         from the eastern Atlantic). However,
                                                      after a lengthy 10–12 month gestation                   suggest that females may come close to      although significant inter-basin
                                                      period. The number of pups in a litter                  shore to pup (Clarke et al., 2015b). In     population structure was evident, it was
                                                      ranges from 1 to 14 (mean = 6), and a                   the southwestern Indian Ocean, oceanic      associated with deep phylogeographic
                                                      positive correlation between female size                whitetip sharks appear to mate and give     mixing of mitochondrial haplotypes and
                                                      and number of pups per litter has been                  birth in the early summer. The locations    evidence of contemporary migration
                                                      observed, with larger sharks producing                  of the nursery grounds are not well         between the western Atlantic and Indo-
                                                      more offspring (Compagno 1984; Seki et                  known but they are thought to be in         Pacific Oceans (Ruck 2016).
                                                      al., 1998; Bonfil et al., 2008; IOTC                    oceanic areas.                                 As noted previously, although Ruck
                                                      2015a). Age and length of maturity                                                                  (2016) did not initially detect fine-scale
                                                                                                              Population Structure and Genetics           matrilineal structure within ocean
                                                      estimates are slightly different
                                                      depending on geographic location. For                      To date, only two studies have been      basins, after comparing and analyzing
                                                      example, in the Southwest Atlantic, age                 conducted on the genetics and               the genetic samples of the two studies
                                                      and length of maturity in oceanic                       population structure of the oceanic         together (i.e., samples from Camargo et
                                                      whitetips was estimated to be 6–7 years                 whitetip shark, which suggest there may al., 2016 and samples from Ruck 2016),
                                                      and 180–190 cm TL, respectively, for                    be some genetic differentiation between Ruck (Unpublished data) detected
                                                      both sexes (Lessa et al., 1999). In the                 various populations of the species. The     significant maternal population
                                                      North Pacific, there are two different                  first study (Camargo et al., 2016)          structure within the western Atlantic
                                                      estimates for age and length of maturity.               compared the mitochondrial control          that provides evidence of three
                                                      Seki et al., (1998) estimated that females              region (mtCR) in 215 individuals from       matrilineal lineages in the western
                                                      reach sexual maturity at approximately                  the Indian Ocean and eastern and            Atlantic. However, the data showing
                                                      168–196 cm TL, and males at 175–189                     western Atlantic Ocean. While results       population structure within the Atlantic
                                                      cm TL, which corresponds to ages of 4                   showed significant genetic                  relies solely on mitochondrial DNA and
                                                      and 5 years, respectively (Seki et al.,                 differentiation (based on haplotype         does not reflect male mediated gene
                                                      1998). However, more recently Joung et                  frequencies) between the eastern and        flow. Thus, while the current (albeit
                                                      al. (2016) determined a later age of                    western Atlantic Ocean (FST = 0.1039,       unpublished) data supports three
                                                      maturity in the North Pacific, with                     P <0.001; Camargo et al., 2016), pairwise maternal populations within the
                                                      females reaching maturity at 190 cm TL                  comparisons among populations within Atlantic, this data is preliminary and
                                                                                                              the regions revealed a complex pattern.     information regarding male mediated
                                                      (approximately 8.5–8.8 years) and males
                                                                                                              Though some eastern Atlantic                gene flow would provide an improved
                                                      reaching maturity at 172 cm TL
                                                                                                              populations were significantly              understanding of the fine-scale genetic
                                                      (approximately 6.8–8.9 years old). In the
                                                                                                              differentiated from western Atlantic        structuring of oceanic whitetip in the
                                                      Indian Ocean, both males and females
                                                                                                              populations (FST = 0.09¥0.27, P <           Atlantic.
                                                      mature at around 190–200 cm TL (IOTC
                                                                                                              0.01), others were not (FST =                  The best available information
                                                      2014). Size at birth also varies slightly
                                                                                                              0.02¥0.03, P > 0.01), even after            indicates that the oceanic whitetip shark
                                                      between geographic locations, ranging
                                                                                                              excluding populations with sample           has relatively low genetic diversity.
                                                      from 55 to 75 cm TL in the North
                                                                                                              sizes of less than 10 individuals           Compared to eight other circumtropical
                                                      Pacific, around 65–75 cm TL in the
                                                                                                              (Camargo et al., 2016). Additionally, the elasmobranch species, including the
                                                      northwestern Atlantic, and 60–65 cm TL                  sample size from the Indian Ocean (N = basking shark (Cetorhinus maximus),
                                                      off South Africa, with reproductive                     9) may be inadequate to detect              smooth hammerhead (Sphyrna
                                                      seasons thought to occur from late                      statistically significant genetic structure zygaena), great hammerhead (Sphyrna
                                                      spring to summer (Bonfil et al., 2008;                  between this and other regions              mokarran), tiger shark (Galeocerdo
                                                      Compagno 1984).                                         (Camargo et al., 2016). Furthermore,        cuvier), blacktip reef shark
                                                         Tropical Pacific records of pregnant                 since this study only used                  (Carcharhinus limbatus), sandbar shark
                                                      females and newborns are concentrated                   mitochondrial markers, male mediated        (Carcharhinus plumbeus), silky shark
                                                      between 20° N and the equator, from                     gene flow is not reflected.                 (Carcharhinus falciformis), and the
                                                      170° E to 140° W. In the Atlantic, young                   In the second study, Ruck (2016)         whale shark (Rhincodon typus), the
                                                      oceanic whitetip sharks have been                       compared the mitochondrial control          oceanic whitetip shark ranks the fourth
                                                      found well offshore along the                           region, a protein-coding mitochondrial      lowest in global mtCR genetic diversity
                                                      southeastern coast of the United States,                region, and nine nuclear microsatellite     (0.33 percent ± 0.19 percent; Ruck
                                                      suggesting that there may be a nursery                  loci in 171 individuals sampled from        2016), with diversity similar to the
                                                      in oceanic waters over this continental                 the western Atlantic, Indian, and Pacific smooth hammerhead (0.32 percent ±
                                                      shelf (Compagno 1984; Bonfil et al.,                    Oceans. Using three population-level        0.18 percent (Testerman 2014) and
                                                      2008). In the southwestern Atlantic, the                pairwise metrics (PhiST, FST, and Jost’s greater than basking sharks (Hoelzel et
                                                      prevalence of immature sharks, both                     D), Ruck (2016) did not detect fine-scale al., 2006). The mtCR genetic diversity of
                                                      female and male, in fisheries catch data                matrilineal structure within ocean          the oceanic whitetip is about half that
                                                      suggests that this area may serve as                    basins, but mitochondrial and nuclear       of the closely related silky shark (0.61
                                                      potential nursery habitat for the oceanic               analyses indicated weak but significant     percent ±0.32 percent; (Clarke et al.,
                                                      whitetip shark (Coelho et al., 2009;                    differentiation between western Atlantic 2015a)) and about a third that of the
                                                      Tambourgi et al., 2013; Tolotti et al.,                 and Indo-Pacific Ocean populations          whale shark (1.1 percent ± 0.6 percent;
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      2013; Frédou et al., 2015). Juveniles                  (FST = 0.076, P = 0.0002; FST = 0.017,      (Castro et al., 2007). Ruck (2016) noted
                                                      seem to be concentrated in equatorial                   P < 0.05 after correction for False         that the relatively low mtDNA genetic
                                                      latitudes, while specimens in other                     Discovery Rate). Therefore, Ruck (2016) diversity (concatenated mtCR–ND4
                                                      maturational stages are more                            suggests that oceanic whitetip sharks       nucleotide diversity p = 0.32 percent
                                                      widespread (Tambourgi et al., 2013).                    consist of a minimum of two                 ±0.17 percent) compared to other
                                                      Pregnant females are often found close                  contemporary, distinct genetic              circumtropical elasmobranch species
                                                      to shore, particularly around the                       populations comprising sharks from the raises potential concern for the future
                                                      Caribbean Islands. One pregnant female                  western Atlantic and the Indo-Pacific       genetic health of this species. Camargo
                                                      was found washed ashore near                            (this study did not have any samples        et al., (2016) also observed low levels of


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                                                      96308               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      genetic variability for the species                     Distinct Population Segments                          oceanic whitetip shark, availability of
                                                      throughout the study area, and noted                      As described above, the ESA’s                       data, and types of threats, the ERA team
                                                      that these low genetic variability rates                definition of ‘‘species’’ includes ‘‘any              decided that the foreseeable future
                                                      may represent a risk to the adaptive                    subspecies of fish or wildlife or plants,             should be defined as approximately 3
                                                      potential of the species leading to a                   and any distinct population segment                   generation times for the oceanic
                                                      weaker ability to respond to                            (DPS) of any species of vertebrate fish or            whitetip shark, or approximately 30
                                                      environmental changes (Camargo et al.                   wildlife which interbreeds when                       years. A generation time is defined as
                                                      2016).                                                  mature.’’ As stated in the joint DPS                  the time it takes, on average, for a
                                                                                                              policy, Congress expressed its                        sexually mature female oceanic whitetip
                                                      Current Status                                                                                                shark to be replaced by offspring with
                                                                                                              expectation that the Services would
                                                         Oceanic whitetip sharks can be found                 exercise authority with regard to DPSs                the same spawning capacity. This
                                                      worldwide, with no present indication                   sparingly and only when the biological                timeframe (3 generation times) takes
                                                      of a range contraction. Although                        evidence indicates such action is                     into account the time necessary to
                                                      generally not targeted, they are                        warranted. NMFS determined at the 90-                 provide for the conservation and
                                                      frequently caught as bycatch in many                    day finding stage that the petition to list           recovery of the species. As a late-
                                                      global fisheries, including pelagic                     the global species of oceanic whitetip                maturing species, with slow growth rate
                                                      longline (PLL) fisheries targeting tuna                 shark was warranted. As such, we                      and relatively low productivity, it
                                                                                                              conducted the extinction risk analysis                would likely take more than a
                                                      and swordfish, purse seine, gillnet, and
                                                                                                              on the global oceanic whitetip shark                  generation time for any conservative
                                                      artisanal fisheries. Oceanic whitetip
                                                                                                              population.                                           management action to be realized and
                                                      sharks are also a preferred species for
                                                                                                                                                                    reflected in population abundance
                                                      their large, morphologically distinct                   Assessment of Extinction Risk                         indices. In addition, the foreseeable
                                                      fins, as they obtain a high price in the
                                                                                                                 The ESA (section 3) defines an                     future timeframe is also a function of
                                                      Asian fin market, and thus they are
                                                                                                              endangered species as ‘‘any species                   the reliability of available data regarding
                                                      valuable as incidental catch for the
                                                                                                              which is in danger of extinction                      the identified threats and extends only
                                                      international shark fin trade.
                                                                                                              throughout all or a significant portion of            as far as the data allow for making
                                                         In 2006, the International Union for                                                                       reasonable predictions about the
                                                                                                              its range.’’ A threatened species is
                                                      Conservation of Nature (IUCN)                                                                                 species’ response to those threats. Since
                                                                                                              defined as ‘‘any species which is likely
                                                      classified the oceanic whitetip shark as                to become an endangered species within                the main threats to the species were
                                                      Vulnerable globally based on an                         the foreseeable future throughout all or              identified as fisheries and the
                                                      assessment by Baum et al., (2006) and                   a significant portion of its range.’’                 inadequacy of existing regulatory
                                                      its own criteria (A2ad+3d+4ad), and                     Neither we nor the USFWS have                         measures that manage these fisheries,
                                                      placed the species on its ‘‘Red List.’’                 developed formal policy guidance about                the ERA team felt that they had the
                                                      Under criteria A2ad, 3d and 4ad, a                      how to interpret the definitions of                   background knowledge in fisheries
                                                      species may be classified as Vulnerable                 threatened and endangered with respect                management and expertise to
                                                      when its ‘‘observed, estimated, inferred                to what it means to be ‘‘in danger of                 confidently predict the impact of these
                                                      or suspected’’ population size is                       extinction.’’ We consider the best                    threats on the biological status of the
                                                      reduced by 30 percent or more over the                  available information and apply                       species within this timeframe.
                                                      last 10 years, the next 10 years, or any                professional judgment in evaluating the                  The ability to measure or document
                                                      10-year time period, or over a 3-                       level of risk faced by a species in                   risk factors to a marine species is often
                                                      generation period, whichever is the                     deciding whether the species is                       limited, where quantitative estimates of
                                                      longer, where the reduction or its causes               threatened or endangered. We evaluate                 abundance and life history information
                                                      may not have ceased or may not be                       both demographic risks, such as low                   are often lacking altogether. Therefore,
                                                      understood or may not be reversible,                    abundance and productivity, and threats               in assessing extinction risk of a data
                                                      based on a direct observation and actual                to the species, including those related to            limited species, it is important to
                                                      or potential levels of exploitation. The                the factors specified in ESA section                  include both qualitative and
                                                      IUCN’s justification for the                            4(a)(1)(A)–(E).                                       quantitative information. In assessing
                                                      categorization is based on the species’                                                                       extinction risk to the oceanic whitetip
                                                      declining populations. The IUCN notes                   Methods                                               shark, the ERA team considered the
                                                      that the species’ regional trends, slow                    As we described previously, we                     demographic viability factors developed
                                                      life history characteristics (hence low                 convened an ERA team to evaluate                      by McElhany et al., (2000) and the risk
                                                      capacity to recover from moderate levels                extinction risk to the species. This                  matrix approach developed by
                                                      of exploitation), and high levels of                    section discusses the methods used to                 Wainwright and Kope (1999) to organize
                                                      largely unmanaged and unreported                        evaluate threats and the overall                      and summarize extinction risk
                                                      mortality in target and bycatch fisheries,              extinction risk to the oceanic whitetip               considerations. The approach of
                                                      give cause to suspect that the                          shark. For purposes of the risk                       considering demographic risk factors to
                                                      population has decreased by over 30                     assessment, an ERA team comprised of                  help frame the consideration of
                                                      percent and meets the criteria to be                    fishery biologists and shark experts was              extinction risk has been used in many
                                                      categorized as Vulnerable globally. As a                convened to review the best available                 of our status reviews (see http://
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      note, the IUCN classification for the                   information on the species and evaluate               www.nmfs.noaa.gov/pr/species for links
                                                      oceanic whitetip shark alone does not                   the overall risk of extinction facing the             to these reviews). In this approach, the
                                                      provide the rationale for a listing                     oceanic whitetip shark, now and in the                collective condition of individual
                                                      recommendation under the ESA, but the                   foreseeable future. The term                          populations is considered at the species
                                                      classification and the sources of                       ‘‘foreseeable future’’ was defined as the             level according to four demographic
                                                      information that the classification is                  timeframe over which threats could be                 viability factors: Abundance, growth
                                                      based upon are evaluated in light of the                reliably predicted to impact the                      rate/productivity, spatial structure/
                                                      standards on extinction risk and                        biological status of the species. After               connectivity, and diversity. These
                                                      impacts or threats to the species.                      considering the life history of the                   viability factors reflect concepts that are


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                          96309

                                                      well-founded in conservation biology                    species or DPS with a high risk of                    abundance trends of the species. Given
                                                      and that individually and collectively                  extinction is at or near a level of                   the available data, and the fact that the
                                                      provide strong indicators of extinction                 abundance, productivity, spatial                      available assessments were not
                                                      risk.                                                   structure, and/or diversity that places its           conducted prior to the advent of
                                                         Using these concepts, the ERA team                   continued persistence in question. The                industrial fishing (and thus not from
                                                      evaluated demographic risks by                          demographics of a species or DPS at                   virgin biomass), the exact magnitude of
                                                      assigning a risk score to each of the four              such a high level of risk may be highly               the declines and current abundance of
                                                      demographic risk factors. The scoring                   uncertain and strongly influenced by                  the global population are unknown.
                                                      for these demographic risk criteria                     stochastic or depensatory processes.                  However, based on the best available
                                                      correspond to the following values: 0—                  Similarly, a species or DPS may be at                 scientific and commercial data, the ERA
                                                      unknown risk, 1—low risk, 2—moderate                    high risk of extinction if it faces clear             team concluded, and we agree, that
                                                      risk, and 3—high risk. Detailed                         and present threats (e.g., confinement to             while the oceanic whitetip shark was
                                                      definitions of the risk scores can be                   a small geographic area; imminent                     historically one of the most abundant
                                                      found in the status review report.                      destruction, modification, or                         and ubiquitous shark species in tropical
                                                         The ERA team also performed a                        curtailment of its habitat; or disease                seas around the world, numerous lines
                                                      threats assessment for the oceanic                      epidemic) that are likely to create                   of evidence suggest the species has not
                                                      whitetip shark by evaluating the effect                 present and substantial demographic                   only undergone significant historical
                                                      that the threat was currently having on                 risks. The ERA team adopted the                       declines throughout its range, but likely
                                                      the extinction risk of the species. The                 ‘‘likelihood point’’ (FEMAT) method for               continues to experience abundance
                                                      levels included ‘‘unknown,’’ ‘‘low,’’                   ranking the overall risk of extinction to             declines of varying magnitude globally.
                                                      ‘‘moderate,’’ and ‘‘high.’’ The scores                  allow individuals to express                             Across the Pacific Ocean, several lines
                                                      were then tallied and summarized for                    uncertainty. For this approach, each                  of evidence indicate significant and
                                                      each threat. It should be emphasized                    team member distributed 10 ‘‘likelihood               ongoing population declines of the
                                                      that this exercise was simply a tool to                 points’’ among the extinction risk levels.            oceanic whitetip shark. In the eastern
                                                      help the ERA team members organize                      This approach has been used in                        Pacific Ocean (EPO), the oceanic
                                                      the information and assist in their                     previous NMFS status reviews (e.g.,                   whitetip shark was historically the third
                                                      thought processes for determining the                   Pacific salmon, Southern Resident killer              most abundant shark species after blue
                                                      overall risk of extinction for the oceanic              whale, Puget Sound rockfish, Pacific                  sharks (Prionace glauca) and silky
                                                      whitetip shark.                                         herring, and black abalone) to structure              sharks (C. falciformis). The oceanic
                                                         Guided by the results from the                                                                             whitetip comprised approximately 20
                                                                                                              the team’s thinking and express levels of
                                                      demographic risk analysis and the                                                                             percent of the total shark catch in the
                                                                                                              uncertainty when assigning risk
                                                      threats assessment, the ERA team                                                                              tropical tuna purse seine fishery from
                                                                                                              categories. Although this process helps
                                                      members were asked to use their                                                                               2000–2001 (Roman-Verdesoto and
                                                                                                              to integrate and summarize a large
                                                      informed professional judgment to make                                                                        Orozco-Zoller 2005) and averaged 9
                                                                                                              amount of diverse information, there is
                                                      an overall extinction risk determination                                                                      percent of the total shark catch from
                                                      for the oceanic whitetip shark. For this                no simple way to translate the risk
                                                                                                              matrix scores directly into a                         1993–2009 (with silky sharks
                                                      analysis, the ERA team considered three                                                                       comprising 84 percent, the hammerhead
                                                      levels of extinction risk: 1—low risk,                  determination of overall extinction risk.
                                                                                                              Other descriptive statistics, such as                 complex comprising 5 percent, and
                                                      2—moderate risk, and 3—high risk,                                                                             other sharks comprising 2 percent; Hall
                                                      which are all temporally connected.                     mean, variance, and standard deviation,
                                                                                                                                                                    and Román 2013). However, if only the
                                                      Detailed definitions of these risk levels               were not calculated, as the ERA team
                                                                                                                                                                    more recent period from 2005–2009 is
                                                      are as follows: 1 = Low risk: A species                 felt these metrics would add artificial
                                                                                                                                                                    considered, then the proportion of silky
                                                      or DPS is at low risk of extinction if it               precision to the results. The scores were
                                                                                                                                                                    sharks is 93 percent, followed by the
                                                      is not at a moderate or high level of                   then tallied and summarized.
                                                                                                                 Finally, the ERA team did not make                 scalloped hammerhead shark (1.6
                                                      extinction risk (see ‘‘Moderate risk’’ and                                                                    percent), and the smooth hammerhead
                                                      ‘‘High risk’’ below). A species or DPS                  recommendations as to whether the
                                                                                                              species should be listed as threatened or             shark (1.5 percent). The changes are the
                                                      may be at a low risk of extinction if it                                                                      result of a rapid decline in oceanic
                                                      is not facing threats that result in                    endangered. Rather, the ERA team drew
                                                                                                                                                                    whitetip sharks (Hall and Román 2013).
                                                      declining trends in abundance,                          scientific conclusions about the overall
                                                                                                                                                                    Data for the oceanic whitetip shark in
                                                      productivity, spatial structure, or                     risk of extinction faced by the oceanic
                                                                                                                                                                    the EPO is available from the Inter-
                                                      diversity. A species or DPS at low risk                 whitetip shark under present conditions
                                                                                                                                                                    American Tropical Tuna Commission
                                                      of extinction is likely to show stable or               and in the foreseeable future based on
                                                                                                                                                                    (IATTC), the Regional Fishery
                                                      increasing trends in abundance and                      an evaluation of the species’
                                                                                                                                                                    Management Organization (RFMO)
                                                      productivity with connected, diverse                    demographic risks and assessment of
                                                                                                                                                                    responsible for the conservation and
                                                      populations; 2 = Moderate risk: A                       threats.
                                                                                                                                                                    management of tuna and tuna-like
                                                      species or DPS is at moderate risk of                   Evaluation of Demographic Risks                       species in the IATTC Convention Area.
                                                      extinction if it is on a trajectory that                                                                      The IATTC Convention Area is defined
                                                      puts it at a high level of extinction risk              Abundance
                                                                                                                                                                    as waters of the EPO within the area
                                                      in the foreseeable future (see description                While a global population size                      bounded by the west coast of the
                                                      of ‘‘High risk’’). A species or DPS may                 estimate or trend for the oceanic                     Americas and by 50° N. latitude, 150°
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      be at moderate risk of extinction due to                whitetip shark is currently unavailable,              W. longitude, and 50° S. latitude.
                                                      projected threats or declining trends in                numerous sources of information,                         Nominal catch data from the IATTC
                                                      abundance, productivity, spatial                        including the results of a recent stock               shows that purse seine sets on floating
                                                      structure, or diversity. The appropriate                assessment and several other abundance                objects, unassociated sets and dolphin
                                                      time horizon for evaluating whether a                   indices (e.g., trends in occurrence and               sets all show decreasing trends of
                                                      species or DPS is more likely than not                  composition in fisheries catch data,                  oceanic whitetip shark since 1994
                                                      to be at high risk in the foreseeable                   catch-per-unit-effort (CPUE), and                     (IATTC 2007). In particular, presence of
                                                      future depends on various case- and                     biological indicators) were available to              oceanic whitetip sharks on sets with
                                                      species-specific factors; 3 = High risk: A              infer and assess current regional                     floating objects, which are responsible


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                                                      96310               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      for 90 percent of the shark catches in the              abundance indices, including                          (2004) were challenged on the basis of
                                                      EPO purse seine fishery, has declined                   standardized CPUE, concluded that the                 whether correct inferences were made
                                                      significantly (Hall and Román 2013).                   oceanic whitetip shark continues to                   regarding the magnitude of shark
                                                      Based on nominal catches per set as                     decline throughout the tropical waters                population declines in the Atlantic (see
                                                      well as the frequency of occurrence of                  of the Western and Central Pacific (Rice              discussions in Burgess et al., (2005b)
                                                      oceanic whitetip sharks in floating                     et al., 2015), indicating a severely                  and Burgess et al., (2005a)). Of
                                                      object sets, the species has practically                depleted population of oceanic whitetip               particular relevance to the oceanic
                                                      disappeared from the fishing grounds,                   shark across the region with                          whitetip, Burgess et al., (2005b) noted
                                                      with a seemingly north to south                         observations of the species becoming                  that the change from steel to
                                                      progression. Similar trends are also seen               increasingly rare. Similar results were               monofilament leaders between the
                                                      in dolphin and school sets. These                       found in analyses of CPUE data from the               1950s and 1990s could have reduced the
                                                      declines in nominal CPUE or the                         Hawaii-based PLL fishery, where                       catchability of all large sharks, and the
                                                      frequency of occurrence translates to a                 oceanic whitetip shark showed a                       increase in the average depth of sets
                                                      decline of 80–95 percent from the                       decline in relative abundance on the                  during the same period could have
                                                      population levels in the late 1990s (Hall               order of ≥90 percent from 1995–2010                   reduced the catchability of the surface-
                                                      and Román 2013). Although there are                    (Clarke et al., 2012; Brodziak et al.,                dwelling oceanic whitetip (FAO 2012).
                                                      various potential reasons for such                      2013). It must be recognized that the                 Later, Driggers et al., (2011) conducted
                                                      reductions, including changes in fishing                closeness of the agreement between the                a study on the effects of different leader
                                                      areas or methods, higher utilization                    trends in observer data from Hawaii and               materials on the CPUE of oceanic sharks
                                                      rates, or some combination of factors,                  the observer data from the SPC for the                and determined that with equivalent
                                                      the increasing rarity of this species in                entire Western and Central Pacific                    methods but using a wire leader, the
                                                      EPO purse seine sets likely tracks                      Ocean may be partly due to the use of                 catch rates of Baum and Myers (2004)
                                                      closely with their relative abundance                   datasets that partially overlap for years             for the recent period would have been
                                                      (Hall and Román 2016).                                 prior to 2005. Still, even after 2005, the            0.55 rather than 0.02 (as estimated by
                                                         Similar levels of decline have also                  trends show similar results suggesting                Baum and Myers (2004) using nylon
                                                      been observed across the Western and                    that the patterns are representative of               leaders). Comparing the recent 0.55
                                                      Central Pacific Ocean. Like the eastern                 regional trends in oceanic whitetip                   value with the Baum et al. (2003) value
                                                      Pacific, the oceanic whitetip shark was                 abundance. A preliminary update of the                of 4.62 for the 1950s gave an estimated
                                                      once one of the most abundant pelagic                   Brodziak et al. (2013) study with 4                   extent of decline of 88 percent (FAO
                                                      shark species throughout the tropical                   additional years of data (2011–2014)                  2012). In a re-analysis of the same
                                                      waters of the region. For example, tuna                 indicates a potential relative stability in           logbook dataset analyzed by Baum et al.
                                                      longline survey data from the 1950s                     the population size at a post-decline                 (2003) for the Northwest Atlantic using
                                                      indicate oceanic whitetip sharks                        depressed state (Young et al., 2016).                 a similar methodology, Cortés et al.,
                                                      comprised 28 percent of the total shark                 Nonetheless, the ERA team concluded,                  (2007) reported a 57 percent decline
                                                      catch of fisheries south of 10° N.                      and we agree, that the levels of                      from 1992–2005. The decline was
                                                      (Strasburg 1958). Likewise, Japanese                    significant and ongoing population                    largely driven by a 37 percent decline
                                                      research longline records during 1967–                  decline observed in these studies                     from 1992 to 1993 and a subsequent
                                                      1968 indicate that oceanic whitetip                     indicate that these declines are not just             decline of 53 percent from 1997 to 2000,
                                                      sharks were among the most common                       local or regional, but rather a Pacific-              after which the time series remained
                                                      shark species taken by tuna vessels in                  wide phenomenon, with no significant                  stable (2000–2005). However, an
                                                      tropical seas of the Western and Central                indication that these trends have                     analysis of the observer dataset from the
                                                      Pacific, and comprised 22.5 percent and                 reversed.                                             same fishery resulted in a less
                                                      23.5 percent of the total shark catch                      In the Northwest Atlantic, the oceanic             pronounced decline than that of the
                                                      west and east of the International Date                 whitetip shark was described                          logbook analysis, with a 9 percent
                                                      Line, respectively (Taniuchi 1990).                     historically as widespread, abundant,                 decline in abundance from the same
                                                      However, numerous sources of                            and the most common pelagic shark in                  period of 1992–2005. Finally, the ERA
                                                      information indicate significant and                    the warm parts of the North Atlantic                  team conducted an updated analysis
                                                      ongoing abundance declines of oceanic                   (Backus et al., 1956). Several studies                (1992–2015) using the same observer
                                                      whitetip sharks in this region. For                     have been conducted to determine                      data analyzed by Cortés et al. (2007).
                                                      example, a recent stock assessment                      trends in abundance of various shark                  Similar to previous analyses, there was
                                                      conducted in the Western and Central                    species, including the oceanic whitetip               high variability in the initial years of the
                                                      Pacific, based on observer data from the                shark. Baum et al., (2003) analyzed                   time series, but overall, the analysis
                                                      Secretariat of the Pacific Community                    logbook data for the U.S. PLL fleets                  conducted by the ERA team showed ∼4
                                                      (SPC), estimated an 86 percent decline                  targeting swordfish and tunas, and                    percent decline over the time series,
                                                      in spawning biomass from 1995 to 2009,                  reported a 70 percent decline in relative             with the overall trend indicative that the
                                                      with total biomass reduced to just 6.6                  abundance for the oceanic whitetip                    population may have stabilized (Young
                                                      percent of the theoretical equilibrium                  shark from 1992 to 2000. Similarly,                   et al. 2016). Although observer data are
                                                      virgin biomass (i.e., a total decline of                Baum and Myers (2004) compared                        generally regarded as more reliable than
                                                      93.4 percent; Rice and Harley 2012).                    longline CPUE from research surveys                   logbook data for non-target shark
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      Based on the results from the oceanic                   from 1954–1957 to observed commercial                 species (Walsh et al., 2002), it should be
                                                      whitetip stock assessment, the median                   longline sets from 1995–1999, and                     noted that the sample size of oceanic
                                                      estimate of oceanic whitetip biomass in                 determined that the oceanic whitetip                  whitetip shark in the observer data was
                                                      the Western Central Pacific as of 2010                  had declined by more than 150-fold, or                substantially smaller than for other
                                                      was 7,295 tons (Rice and Harley 2012),                  99.3 percent (95 percent; Confidence                  species, and thus the trends estimated
                                                      which would be equivalent to a                          Interval (CI): 98.3–99.8 percent) in the              should be regarded with caution.
                                                      population of roughly 200,000                           Gulf of Mexico during that time.                      Additionally, although misreporting and
                                                      individuals (FAO 2012). An updated                      However, the methods and results of                   species misidentification are likely to be
                                                      assessment analyzing various                            Baum et al. (2003) and Baum and Myers                 much more prevalent in logbooks,


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                          96311

                                                      which can obscure abundance trends,                     1990s. Further, demographic analyses                  whitetip in this area may be the result
                                                      misidentification is not considered an                  from the largest oceanic whitetip shark               of the species’ tendency to remain in
                                                      issue for the oceanic whitetip, whereas                 catching country in the South Atlantic                warmer, tropical waters farther north.
                                                      it is more problematic for other species                (i.e., Brazil) indicate abundance                     Alternatively, it could be a result of
                                                      such as night shark and other                           declines similar to the Northwest                     historical fishing pressure in the region.
                                                      Carcharhinus species. It should also be                 Atlantic of 50–79 percent in recent                      Finally, in a study that synthesized
                                                      noted that fishing pressure on the                      decades (Santana et al., 2004; ICMBio                 information on shark catch rates (based
                                                      oceanic whitetip shark began decades                    2014) and coincide with significant                   on 871,177 sharks caught on 86,492
                                                      prior to the time series covered in these               declines in catches of oceanic whitetip               longline sets) for the major species
                                                      studies (with the exception of the Baum                 shark reported by Brazil to the                       caught by multiple fleets in the South
                                                      and Myers (2004) study), thus the                       International Commission for the                      Atlantic between 1979 and 2011, catch
                                                      percentage declines discussed here do                   Conservation of Atlantic Tunas (ICCAT).               rates of most species (with the exception
                                                      not represent percentage declines from                  As a result of these declining trends, the            of P. glauca and A. superciliosus),
                                                      historical virgin biomass. Therefore,                   oceanic whitetip shark was designated                 including oceanic whitetip, declined by
                                                      given all of the caveats and limitations                as a ‘‘species threatened by                          more than 85 percent (Barreto et al.,
                                                      of the studies and analyses discussed                   overexploitation’’ in 2004 by Brazil’s                2015). However, it should be noted that
                                                      above, it is likely that the oceanic                    Ministério do Meio Ambiente (Ministry                there are some caveats and limitations
                                                      whitetip shark population in the                        of Environment), and listed under                     to this study, including high and
                                                      Northwest Atlantic and Gulf of Mexico                   Annex II of Brazil’s Normative Ruling                 overlapping confidence intervals,
                                                      experienced significant historical                      No. 5 of May 21, 2004 that recognizes                 raising the possibility that the trends
                                                      declines; however, relative abundance                   endangered species and species                        may be noise rather than truly tracking
                                                      of oceanic whitetip shark may have                      threatened by overexploitation,                       abundance. Nonetheless, while robust
                                                      stabilized in the Northwest Atlantic                    including aquatic invertebrates and fish.             abundance data is lacking in the South
                                                      since 2000 and in the Gulf of Mexico/                   In 2014, Brazil finalized its national                Atlantic, the best available information,
                                                      Caribbean since the late 1990s at a                     assessment regarding the extinction risk              including demographic analyses and
                                                      significantly diminished abundance                      of Brazilian fauna, and listed the                    fisheries data across the region from
                                                      (Cortés et al. 2007; Young et al. 2016).               oceanic whitetip shark as Vulnerable                  1979–2011, indicate the oceanic
                                                                                                              under Brazil’s ‘‘Lista Nacional Oficial de            whitetip shark has potentially
                                                         In other areas of the oceanic whitetip                                                                     experienced a significant population
                                                      shark range, robust and reliable                        Espécies da Fauna Ameaçadas de
                                                                                                              Extinção—Peixes e Invertebrados                     decline ranging from 50–85 percent
                                                      quantitative abundance data are limited                                                                       (Santana et al. 2004; ICMBio 2014;
                                                      or lacking altogether. In the South                     Aquáticos’’ (National Official List of
                                                                                                              Endangered Species of Fauna—Fish and                  Barreto et al. 2015). Overall, the ERA
                                                      Atlantic, the oceanic whitetip has been                                                                       team concluded, and we agree, that the
                                                      characterized as one of the most                        Aquatic Invertebrate; ICMBio 2014).
                                                                                                                                                                    oceanic whitetip population in the
                                                      abundant species of pelagic shark in the                   Elsewhere across the South Atlantic,               South Atlantic has likely experienced
                                                      southwestern and equatorial region. For                 the oceanic whitetip shark appears to be              historical declines similar to levels seen
                                                      example, the oceanic whitetip was the                   relatively rare, with low patchy                      in the Northwest Atlantic, and this
                                                      third most commonly caught shark out                    abundance. For example, in 6 years of                 population decline is likely ongoing,
                                                      of 33 shark species caught year-round in                observer data from the Uruguayan                      although we acknowledge some
                                                      the prominent Brazilian Santos longline                 longline fleet (1998–2003), catches of                uncertainty regarding the available data
                                                      fishery, and one of 7 species that                      oceanic whitetip shark were described                 from this region.
                                                      comprised >5 percent of total shark                     as ‘‘occasional’’ with CPUE rates of only                Abundance information from the
                                                      catches from 1971–1995 (Amorim 1998).                   0.006 individuals/1,000 hooks                         Indian Ocean is relatively deficient and
                                                      In Itajai, southern Brazil, oceanic                     (Domingo 2004). However, during this                  unreliable. Nonetheless, historical
                                                      whitetip sharks were considered                         study, the Uruguayan longline fleet                   research data shows overall declines in
                                                      ‘‘abundant’’ and ‘‘frequent’’ in the                    operated between latitudes 26° and 37°                both CPUE and mean weight of oceanic
                                                      surface longline and gillnet fleets,                    S. and within sea surface temperatures                whitetip sharks (Romanov et al., 2008),
                                                      respectively, from 1994–1999                            ranging between 16° and 23 °C, which                  and anecdotal reports suggest that
                                                      (Mazzoleni and Schwingel 1999).                         are largely lower than the temperature                oceanic whitetips have become rare
                                                      Likewise, in equatorial waters off the                  preferences of the species. Domingo                   throughout much of the Indian Ocean
                                                      northeastern coast of Brazil, the oceanic               (2004) noted that it is unknown whether               over the past 20 years (IOTC 2015a). The
                                                      whitetip shark was historically reported                the species has always occurred in low                Indian Ocean Tuna Commission (IOTC)
                                                      as the second most abundant                             numbers in this region of the South                   also reports that despite limited data,
                                                      elasmobranch species, outnumbered                       Atlantic, or whether the population has               oceanic whitetip shark abundance has
                                                      only by the blue shark (P. glauca), in                  been affected significantly by fishing                likely declined significantly over recent
                                                      research surveys conducted within the                   effort. More recently, Domingo et al.                 decades. Furthermore, a few
                                                      EEZ of Brazil, and comprised 29 percent                 (2007) found similar results, with the                quantitative studies provide some
                                                      of the total elasmobranch catch in the                  highest CPUE recorded not exceeding                   additional information indicative of
                                                      1990s (Lessa et al., 1999). From 1992–                  0.491 individuals/1,000 hooks. In total,              declining trends of oceanic whitetip in
                                                      2002, oceanic whitetip CPUE in this                     only 63 oceanic whitetips were caught                 the Indian Ocean. For example, data
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      area averaged 2.18 individuals/1,000                    on 2,279,169 hooks and 63 percent were                from an exploratory fishing survey for
                                                      hooks (Domingo et al., 2007); more                      juveniles. All catches occurred in sets               large pelagic species conducted off the
                                                      recently, however, the average CPUE                     with sea surface temperatures ≥22.5 °C                eastern seaboard of the Maldives from
                                                      recorded in this same area from 2004–                   (Domingo et al., 2007). Again, this data              1987–1988 reported that oceanic
                                                      2010 of 0.1–0.3 individuals/1,000 hooks                 does not indicate whether a decline in                whitetips represented 29 percent of the
                                                      (Frédou et al., 2015) is much lower.                   the population has occurred, rather, it               sharks caught by longline and 10
                                                      Additionally, none of the other areas                   clearly reflects the low abundance of the             percent of the sharks caught by gillnet
                                                      within this region exhibit CPUE rates                   species in this area (Domingo et al.,                 in all fishing zones (Anderson and
                                                      comparable to the rates seen in the                     2007). The low abundance of oceanic                   Waheed 1990). During this survey, the


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                                                      96312               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      average CPUE for all sharks was 48.7                    in the eastern Arabian Sea, the                       (Ramos-Cartelle et al., 2012); however, it
                                                      sharks/1,000 hooks. Applying the                        percentage of oceanic whitetip sharks in              should be noted that due to the high
                                                      percentage of oceanic whitetips in the                  the overall shark catch also declined                 variability of the standardized catch
                                                      catch to the total CPUE, it is estimated                slightly from 0.6 percent to 0.45 percent.            rates between consecutive years and
                                                      that the CPUE of oceanic whitetip in                    Overall, Varghese et al. (2015) shows                 limited availability of specimens in
                                                      this period was about 1.41 individuals/                 that the index of relative abundance of               some years, this index could be
                                                      100 hooks (FAO 2012). More recently,                    sharks was considerably lower than that               representative of a particular period
                                                      Anderson et al. (2011) estimated that                   found in earlier studies, indicating a                rather than a plausible indicator of the
                                                      the average CPUE of oceanic whitetip in                 decline in abundance over the years.                  stock abundance at large (Ramos-
                                                      the shark longline fishery was only 0.20                While the lack of standardized CPUE                   Cartelle et al., 2012). Specifically, the
                                                      individuals per fishing vessel (or                      trend information for oceanic whitetip                data yielded support for the relatively
                                                      approximately 0.14 sharks/100 hooks),                   in these studies makes it difficult to                low prevalence described for this
                                                      and estimated the species contributed                   evaluate the potential changes in                     species in the commercial fishery of
                                                      only 3.5 percent of the shark landings.                 abundance for this species in this                    surface longline fleets targeting
                                                      This would represent a 90 percent                       region, based on the best available                   swordfish in waters with temperatures
                                                      decline in abundance between 1987–                      information, it is likely that the oceanic            generally lower than those selected by
                                                      1988 and 2000–2004. Such a level of                     whitetip has experienced some level of                this species as its preferred habitat
                                                      decline would be consistent with the                    population decline in this region.                    (Garcı́a-Cortés et al., 2012; Ramos-
                                                      decrease in the proportion of oceanic                   Additionally, it is important to note that            Cartelle et al., 2012).
                                                      whitetip in the catch (from 29 percent                  India has objected to IOTC Resolution                    Finally, a study that incorporated data
                                                      of longline shark catch in 1987–1988 to                 13–06, which prohibits the retention of               from the tropical French and Soviet
                                                      just 3.5 percent of landings in 2000–                   oceanic whitetip sharks (since 2013) in               Union purse seine fisheries analyzed the
                                                      2004) and also with anecdotal                           IOTC managed fisheries, and thus this                 interaction between oceanic whitetip
                                                      information reporting a marked decrease                 Resolution is not binding on India.                   sharks and the tropical purse seine
                                                      in sightings of oceanic whitetip sharks                 Therefore, oceanic whitetip sharks may                fisheries in terms of occurrence per set
                                                      off northern and central Maldives                       still be retained in Indian fisheries.                (not taking into account the number of
                                                      (Anderson et al., 2011; FAO 2012). The                     Other studies on the abundance                     individuals caught per set) from the
                                                      IOTC Working Party on Ecosystems and                    trends of oceanic whitetip shark in the               mid-1980s to 2014. Results showed a
                                                      Bycatch (WPEB) noted the following on                   Indian Ocean, including analyses of                   marked change in the proportion of fish
                                                      the aforementioned studies: ‘‘Data                      standardized CPUE indices from                        aggregating device (FAD) sets with
                                                      collected on shark abundance represents                 Japanese and Spanish longline fisheries,              oceanic whitetips present, fluctuating
                                                      a consistent time series for the periods                also indicate potential population                    around 20 percent in the mid-1980s and
                                                      1987–1988 and 2000–2004, collected                      declines, although trends are                         1990s, and then dropping to less than 10
                                                      with similar longline gear, and that the                conflicting. Two studies estimate                     percent from 2005 onwards. Taking into
                                                      data was showing a declining trend in                   standardized CPUE for oceanic whitetip                account that the number of FADs has
                                                      oceanic whitetip shark abundance,                       shark in the Japanese longline fleet                  greatly increased since the 1990s
                                                      which is a potential indicator of overall               operating in the Indian Ocean (Semba                  (Dagorn et al., 2013; Maufroy et al.,
                                                      stock depletion.’’ The WPEB further                     and Yokawa 2011; Yokawa and Semba                     2015; Tolotti et al., 2015b), the change
                                                                                                              2012). In the first 2011 study, CPUE                  in the proportion of FADs with oceanic
                                                      noted that it could be related to
                                                                                                              reached its peak in 2003 and then                     whitetip sharks by more than 50 percent
                                                      localized effects, although this was
                                                                                                              showed a gradually decreasing trend                   could indicate an important population
                                                      deemed unlikely as oceanic whitetip
                                                                                                              thereafter. Prior to 2003, large                      decline (Tolotti et al., 2015b).
                                                      sharks are wide-ranging and abundance
                                                                                                              fluctuations in oceanic whitetip CPUE                 Alternatively, the decline of oceanic
                                                      trends from long-term research
                                                                                                              are attributed to changes in reporting                whitetip shark occurrence per FAD
                                                      conducted by the former Soviet Union
                                                                                                              requirements rather than the actual                   could be the result of a sharp increase
                                                      between the 1960s and 1980s indicate a
                                                                                                              trend of the stock, as those years                    of FAD densities combined with a small
                                                      similar decline of oceanic whitetip
                                                                                                              represent the introduction phase of a                 and stable population size. In this
                                                      sharks, and that ‘‘sightings of this
                                                                                                              new recording system. The data showed                 scenario, the proportion of oceanic
                                                      species in Maldives and Réunion                        low values in 2000 and 2001 (attributed               whitetips/FAD would simply decrease
                                                      islands is now quite uncommon’’ (IOTC                   to extremely low catches), and a gradual              because there aren’t enough sharks to
                                                      2011).                                                  decreasing trend from 2003 to 2009. The               aggregate around that many FADs.
                                                         Similarly, surveys of the tuna longline              authors interpreted a 40 percent decline              However, although the analyzed data
                                                      fishery in India indicate a likely decline              in CPUE as an indication of a decrease                does not provide a straightforward
                                                      of oceanic whitetip shark abundance. In                 in abundance of the population (FAO                   interpretation (as both hypotheses seem
                                                      Andaman and Nicobar waters, where                       2012; Semba and Yokawa 2011).                         plausible), given the declines indicated
                                                      catches of sharks are prominent and                     Yokawa and Semba (2012) updated the                   in other studies throughout the Indian
                                                      contribute 35.15 percent of the catch by                data to 2011 using a modified data                    Ocean, it seems more plausible that the
                                                      number and 51.46 percent by weight,                     filtering method, which produced a                    marked decline observed in Tolotti et al.
                                                      John and Varghese (2009) reported that                  rather similar and somewhat flattened                 (2015b) is indicative of a declining
                                                      the oceanic whitetip shark comprised                    trend.                                                abundance trend rather than a small,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      4.6 percent of the total shark catch from                  Standardized CPUE of the Spanish                   stable population.
                                                      1984–2006. However, in more recent                      longline fishery from 1998 to 2011                       Despite the varying magnitudes of
                                                      surveys, Varghese et al., (2015) report                 showed large historical fluctuations and              reported declines of oceanic whitetip
                                                      that oceanic whitetip shark comprised                   a general decreasing trend of oceanic                 shark in the Indian Ocean, the ERA
                                                      only 0.23 percent of the total shark                    whitetip shark from 1998–2007,                        team agreed that given the significantly
                                                      catch from 2004–2010 in this area,                      followed by an increase thereafter in the             high fishing pressure and catches of
                                                      which is significantly lower than what                  last 4 years of the time series. Overall,             oceanic whitetip shark in the Indian
                                                      John and Varghese (2009) reported                       the magnitude of decline in this study                Ocean (which are likely severely
                                                      previously. Off the West Coast of India                 was estimated to be about 25–30 percent               underreported), combined with the


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                            96313

                                                      species’ high at-vessel mortality rates in              while this species may generally be able              team noted that the relatively low
                                                      longlines in this area and the species’                 to withstand low to moderate levels of                mtDNA genetic diversity of the oceanic
                                                      low-moderate productivity (see the                      exploitation, given the high level of                 whitetip raises potential concern for the
                                                      Overutilization for Commercial,                         fishing mortality this species has                    future genetic health of this species,
                                                      Recreational, Scientific, or Educational                experienced and continues to                          particularly in concert with steep global
                                                      Purposes section below for more                         experience throughout the majority of                 declines in abundance. Based on the
                                                      details), it is likely that the species will            its range, its life history characteristics           fact that exploitation of the oceanic
                                                      continue to experience population                       may only provide the species with a                   whitetip shark began with the onset of
                                                      declines in this region into the                        limited ability to compensate.                        industrial fishing in the 1950s, only
                                                      foreseeable future.                                     Therefore, based on the best available                5–7 generations of oceanic whitetip
                                                         Overall, in areas where oceanic                      information, these life history                       have passed since the beginning of this
                                                      whitetip shark data are available, trends               characteristics likely pose a risk to this            exploitation. Thus, the low genetic
                                                      from throughout the species’ global                     species in combination with threats that              diversity of oceanic whitetip shark
                                                      range show large historical declines in                 reduce its abundance, such as                         likely reflects historic levels, and the
                                                      abundance (e.g., Eastern Pacific,                       overutilization.                                      significant global declines are not yet
                                                      Western and Central Pacific, Atlantic                                                                         reflected genetically (Ruck 2016). The
                                                      and Indian Oceans). Recent evidence                     Spatial Structure/Connectivity
                                                                                                                                                                    ERA team noted that this may be a cause
                                                      suggests that most populations are still                   The oceanic whitetip shark is a                    for concern in the foreseeable future,
                                                      experiencing various levels of decline                  relatively widespread species that may                since a species with already relatively
                                                      due to continued fishing pressure and                   be comprised of distinct stocks in the                low genetic diversity undergoing
                                                      associated mortality. Further, the                      Pacific, Indian, and Atlantic oceans. The             significant levels of exploitation may
                                                      potential stabilization of the abundance                population structure and exchange                     increase the species’ risk in terms of
                                                      trends at depleted levels seen in                       between these stocks is unknown;                      reduced fitness and evolutionary
                                                      observer data from the Northwest                        however, based on genetic information,                adaptability to a rapidly changing
                                                      Atlantic and Hawaiian PLL fisheries                     telemetry data, and temperature                       oceanic environment as well as
                                                      represents a small contingent of the                    preferences it is unlikely that there is              potential extirpations. The ERA team
                                                      global population. Thus, the best                       much exchange between populations in                  also noted that low genetic diversity
                                                      available scientific and commercial data                the Atlantic and Indo-Pacific Oceans.                 does not necessarily equate to a risk of
                                                      available suggest that the global                       However, recent genetic data suggests                 extinction in and of itself for all species;
                                                      population of oceanic whitetip                          potentially significant population
                                                                                                                                                                    but, in combination with low levels of
                                                      continues to experience various levels                  structure within the Atlantic, which
                                                                                                                                                                    abundance and continued exploitation,
                                                      of decline throughout the majority of its               may be underpinned by the fact that this
                                                                                                                                                                    low genetic diversity may pose a viable
                                                      range.                                                  species exhibits a high degree of
                                                                                                                                                                    risk to the species in the foreseeable
                                                                                                              philopatry in some locations (i.e., the
                                                      Growth Rate/Productivity                                                                                      future.
                                                                                                              species returns to the same site for
                                                         The ERA team expressed some                          purposes of breeding or feeding, etc.).               Summary of Factors Affecting the
                                                      concern regarding the effect of the                     While the population structure observed               Oceanic Whitetip Shark
                                                      oceanic whitetip shark’s growth rate and                in the Atlantic, despite no physical or
                                                      productivity on its risk of extinction.                 oceanographic barrier, could result in                  As described above, section 4(a)(1) of
                                                      Sharks, in general, have lower                          localized depletions in areas where                   the ESA and NMFS’ implementing
                                                      reproductive and growth rates compared                  fishing pressure is high (e.g., Brazil),              regulations (50 CFR 424.11(c)) state that
                                                      to bony fishes. The ERA team noted that                 habitat characteristics that are important            we must determine whether a species is
                                                      this species has some life history                      to this species are unknown. The                      endangered or threatened because of
                                                      parameters that are typically                           species is highly mobile, and there is                any one or a combination of the
                                                      advantageous, and some that are likely                  little known about specific migration                 following factors: The present or
                                                      detrimental to the species’ resilience to               routes. It is also unknown if there are               threatened destruction, modification, or
                                                      excessive levels of exploitation. For                   source-sink dynamics at work that may                 curtailment of its habitat or range;
                                                      example, in comparison to other shark                   affect population growth or species’                  overutilization for commercial,
                                                      species, the oceanic whitetip is                        decline. There is no information on                   recreational, scientific, or educational
                                                      relatively productive, with an intrinsic                critical source populations to suggest                purposes; disease or predation; the
                                                      rate of population increase (r) of 0.094–               spatial structure and/or loss of                      inadequacy of existing regulatory
                                                      0.121 per year (Cortés 2010; 2012). The                connectivity are presently posing                     mechanisms; or other natural or
                                                      oceanic whitetip also ranked among the                  demographic risks to the species. Thus,               manmade factors affecting its continued
                                                      highest in productivity when compared                   based on the best available information,              existence. The ERA team evaluated
                                                      with other pelagic shark species in                     there is insufficient information to                  whether and the extent to which each of
                                                      terms of its pup production, rebound                    support the conclusion that spatial                   the foregoing factors contributed to the
                                                      potential, potential for population                     structure and connectivity currently                  overall extinction risk of the global
                                                      increase, and for its stochastic growth                 pose a significant demographic risk to                oceanic whitetip shark population. We
                                                      rate (Chapple and Botsford 2013).                       this species.                                         summarize information regarding each
                                                      Although the oceanic whitetip shark has                                                                       of these threats below according to the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      a relatively high productivity rate                     Diversity                                             factors specified in section 4(a)(1) of the
                                                      compared to other sharks, it is still                     As noted previously in the Population               ESA. Available information does not
                                                      considered low for a fish species (r                    Structure and Genetics section, recent                indicate that destruction, modification
                                                      <0.14). Additionally, the species has a                 research suggests the oceanic whitetip                or curtailment of the species’ habitat or
                                                      fairly late age of maturity (∼6–9 years for             shark has low genetic diversity (0.33                 range, disease or predation, or other
                                                      females depending on the location), has                 percent ± 0.19 percent; Ruck 2016),                   natural or manmade factors are
                                                      a lengthy gestation period of 9–12                      which is about half that of the closely               operative threats on this species;
                                                      months, and only produces an average                    related silky shark (0.61 percent ± 0.32              therefore, we do not discuss those
                                                      of 5–6 pups every two years. Thus,                      percent; Clarke et al., (2015a)). The ERA             further here. See Young et al. (2016) for


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                                                      96314               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      additional discussion of all ESA section                international fin trade, incidental                   observed. Thus, given the continued
                                                      4(a)(1) threat categories.                              bycatch in commercial fisheries                       increase in fishing effort and expansion
                                                                                                              (including impacts of at-vessel and post-             of the tropical tuna purse seine fleet in
                                                      Overutilization for Commercial,
                                                                                                              release mortality), and IUU fishing                   the Eastern Pacific, fishing pressure and
                                                      Recreational, Scientific, or Educational
                                                                                                              activities.                                           associated mortality of oceanic whitetip
                                                      Purposes
                                                                                                                 In the EPO, the oceanic whitetip shark             sharks are expected to continue.
                                                         Threats to the oceanic whitetip shark                is caught on a variety of gear, including                Oceanic whitetip sharks are also
                                                      related to overutilization stem from                    longline and purse seine gear targeting               sometimes a significant component of
                                                      mortality in commercial fisheries,                      tunas and swordfish. They are also                    the bycatch in EPO longline fisheries,
                                                      largely driven by demand of the                                                                               and are thought to be taken by local
                                                                                                              believed to be taken in artisanal
                                                      international shark fin trade, bycatch-                                                                       artisanal fisheries as well. While
                                                                                                              fisheries in many countries around the
                                                      related mortality, as well as illegal,                                                                        observer data is not available from these
                                                                                                              EPO (IATTC 2007). To date, the IATTC
                                                      unreported, and unregulated (IUU)                                                                             fisheries, some limited information is
                                                                                                              has not conducted a stock assessment
                                                      fishing. The oceanic whitetip shark is                                                                        available from the various countries that
                                                                                                              for the oceanic whitetip shark. However,
                                                      generally not a targeted species, but                                                                         fish in these waters. For example, the
                                                                                                              species-specific catch estimates based
                                                      because of its tendency to remain in the                                                                      oceanic whitetip shark was identified as
                                                                                                              on observer data from the purse seine
                                                      surface mixed layer of the water column                                                                       one of several principal species taken by
                                                                                                              fishery are available from the IATTC
                                                      (0–152 m depth) and in tropical                                                                               Mexican fisheries targeting pelagic
                                                                                                              observer database. As noted previously
                                                      latitudes where fishing pressure is often                                                                     sharks (Sosa-Nishizaki et al., 2008).
                                                      most concentrated for target species                    in the Demographic Risk Assessment—
                                                                                                                                                                    Farther south, the oceanic whitetip
                                                      such as tuna, the species is frequently                 Abundance section, the oceanic
                                                                                                                                                                    shark has also been recorded in the
                                                      encountered and suffers high mortality                  whitetip was the second most abundant
                                                                                                                                                                    catches of the Ecuadorian artisanal
                                                      rates in numerous fisheries throughout                  shark in the catches behind the silky
                                                                                                                                                                    fishery. In an analysis of landings from
                                                      its global range. The oceanic whitetip                  shark, and comprised approximately 9
                                                                                                                                                                    the five principal ports of the
                                                      shark is also considered a preferred                    percent of the total shark catch from
                                                                                                                                                                    Ecuadorian artisanal fishery from 2008–
                                                      species for the international fin trade                 1993–2009 (Hall and Román 2013). In
                                                                                                                                                                    2012, 37.2 mt of oceanic whitetip shark
                                                      because its large, morphologically                      floating object sets, which are
                                                                                                                                                                    were recorded out of a total 43,492.6 mt
                                                      distinct fins obtain a high value in the                responsible for 90 percent of oceanic
                                                                                                                                                                    of shark catches (Martinez-Ortiz et al.,
                                                      Asian fin market. The high value and                    whitetip shark catches, capture                       2015). Although limited, this
                                                      demand for oceanic whitetip fins                        probability of the species has decreased              information confirms that in addition to
                                                      incentivizes the retention and                          over time from a high of 30 percent                   significant fishing pressure by the
                                                      subsequent finning of oceanic whitetip                  capture rate per set between 1994 and                 tropical tuna purse seine fishery,
                                                      sharks when caught, and thus represents                 1998, to less than 5 percent from 2004                oceanic whitetip sharks are taken in
                                                      the main economic driver for retention                  to 2008 (Morgan 2014). Estimated                      longline and artisanal fisheries in
                                                      and mortality of this species in                        catches of oceanic whitetip sharks in all             unknown quantities. Based on the
                                                      commercial fisheries throughout its                     purse seine sets peaked with                          foregoing information, the ERA team
                                                      global range. In fact, growth in demand                 approximately 9,709 individuals caught                concluded, and we agree, that
                                                      from the fin trade during the 1990s                     in 1999; however, within 10 years                     overutilization of the oceanic whitetip
                                                      coincided with a pattern of soaring                     catches dropped dramatically to an                    shark is ongoing in this region, with no
                                                      catches of oceanic whitetip sharks in                   estimated 379 oceanic whitetip sharks                 indication that these pressures will
                                                      numerous fisheries across the globe.                    caught in 2005. Estimated catches of                  cease in the foreseeable future.
                                                      Catches generally peaked from 1995 to                   oceanic whitetip shark continue to                       In the Western and Central Pacific
                                                      2000 and were followed by precipitous                   decline in the EPO tropical tuna purse                Ocean (WCPO), the oceanic whitetip
                                                      declines over the next 10 years due to                  seine fishery, with only 120 individuals              shark commonly interacts with both
                                                      severe overfishing (Hazin et al., 2007;                 caught in 2015. This drastic decline in               longline and purse seine fisheries
                                                      Lawson 2011; Clarke et al., 2012;                       oceanic whitetip catches is in stark                  throughout the region, with at least 20
                                                      Hasarangi et al., 2012; Brodziak et al.,                contrast to catches of the closely related            member nations of the Western and
                                                      2013; Hall and Román 2013). The                        silky shark, which have remained                      Central Pacific Fisheries Commission
                                                      oceanic whitetip is regularly caught                    relatively constant over the same time                (WCPFC; the RFMO responsible for the
                                                      incidentally with PLLs, purse seines,                   period. Further, size trends in this                  conservation and management of tuna
                                                      handlines, troll and occasionally pelagic               fishery show that small oceanic whitetip              and tuna-like species in the region)
                                                      and even bottom trawls (Compagno                        sharks <90 cm, which comprised 21.4                   recording the species in their fisheries.
                                                      1984). In addition to mortality as a                    percent of the oceanic whitetips                      As noted previously, the oceanic
                                                      result of retention and finning in                      captured in 1993, have been virtually                 whitetip historically comprised between
                                                      commercial fisheries, oceanic whitetip                  eliminated (Hall and Román 2013),                    20–28 percent of the total shark catch in
                                                      sharks experience varying levels of                     indicating the possibility of recruitment             some industrial longline fisheries
                                                      bycatch-related fishing mortality,                      failure in the population. During this                during the 1950s and 1960s (Strasburg
                                                      including at-vessel and post-release                    same time period, there was an increase               1958; Taniuchi 1990). In this region,
                                                      mortality. Finally, recent reports of                   in both the total catch of tunas by purse             where sharks represent 25 percent of the
                                                      illegal trafficking of oceanic whitetip                 seiners that employ drifting FADs and                 longline fishery catch (Molony 2007),
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      shark fins suggest the species may be                   the number of FADs deployed (Eddy et                  more recent observer data show that the
                                                      heavily impacted by IUU fishing                         al., 2016; Hall and Román 2016). Over                oceanic whitetip shark represented only
                                                      activities. Therefore, the ERA team                     the past decade, the total number of                  6.3 percent of the total shark catch from
                                                      assessed the following factors that may                 FADs deployed per year has continued                  1991–2011(with blue shark comprising
                                                      have contributed or continue to                         to increase steadily, from about 4,000 in             the large majority at ∼80.5 percent;
                                                      contribute to the historical and ongoing                2005 to almost 15,000 in 2015 (Hall and               Lawson 2011). In the purse seine
                                                      overutilization of the oceanic whitetip                 Román 2016). The total number of sets                fishery, the oceanic whitetip was once
                                                      shark: Retention and finning in                         deployed has also continued increasing,               the second most common species of
                                                      commercial fisheries for purposes of the                with 2015 being the highest record                    shark caught as bycatch in the WCPO,


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                          96315

                                                      and comprised approximately 4.2                         and contain 98 percent of the                         U.S. National Bycatch Report First
                                                      percent of the total shark catch from                   operational-level reported purse seine                Edition Update 2 (see
                                                      1994–2011 (Lawson 2011). In addition                    sets and the majority of longline fishing             www.st.nmfs.noaa.gov/observer-home/
                                                      to being caught indirectly as bycatch,                  effort (Clarke et al., 2011a; Rice et al.,            first-edition-update-2) the shallow-set
                                                      observer records indicate that some                     2015). The decline in median size of                  fishery released alive an estimated 91–
                                                      targeting of oceanic whitetip shark has                 female oceanic whitetip sharks is                     96 percent of all oceanic whitetip sharks
                                                      occurred historically in the waters near                particularly concerning due to the                    caught from 2011 to 2013. During the
                                                      Papua New Guinea, and, given the high                   potential correlation between maternal                same time period, the deep-set fishery
                                                      value of oceanic whitetip fins and low                  length and litter size, which has been                released alive an estimated 78–82
                                                      level of observer coverage in the region,               documented in the Atlantic and Indian                 percent of all oceanic whitetip sharks
                                                      it is likely that targeting has occurred in             Oceans (Lessa et al. 1999, Bonfil et al.              caught. However, it is unknown how
                                                      other areas as well (Rice and Harley                    2008). While Rice et al. (2015) more                  many of these sharks survived after
                                                      2012). Based on nominal and                             recently report that trends in oceanic                being released. Nonetheless, this
                                                      standardized catch rates for longline                   whitetip median length are now stable,                particular fishery may be less of a threat
                                                      and purse seine fisheries, records of                   the majority of sharks observed are                   to the oceanic whitetip shark in the
                                                      oceanic whitetip sharks in both fisheries               immature. In fact, 100 percent of                     foreseeable future. However, across the
                                                      have become increasingly rare over                      oceanic whitetips sampled in the purse                WCPO as a whole, given the ongoing
                                                      time, with catches of the species                       seine fishery have been immature since                impacts to the species from significant
                                                      significantly declining since the late                  2000 (Clarke et al., 2012).                           fishing pressure (with the majority of
                                                      1990s (Lawson 2011; Clarke et al.,                         In the U.S. Pacific, the oceanic                   effort concentrated in the species’ core
                                                      2011a). For example, estimated catches                  whitetip shark is a common bycatch                    tropical habitat area), including
                                                      of oceanic whitetip shark in the WCPO                   species in the Hawaii-based PLL fishery.              significant declines in CPUE, biomass,
                                                      longline fishery suggest that catches                   This fishery began around 1917, and                   and size indices, and combined with the
                                                      peaked in 1998 at ∼249,000 individuals                  underwent considerable expansion in                   species’ relatively low-moderate
                                                      and declined to only ∼53,000                            the late 1980s to become the largest                  productivity, it is likely that
                                                      individuals in 2009 (Lawson 2011). It                                                                         overutilization has been and continues
                                                                                                              fishery in the state (Boggs and Ito 1993).
                                                      should be noted that catches by the                                                                           to be an ongoing threat contributing to
                                                                                                              This fishery currently targets tunas and
                                                      fleets of Indonesia and the Philippines                                                                       the extinction risk of the oceanic
                                                                                                              billfish and is managed under the
                                                      were not included because neither                                                                             whitetip shark across the region.
                                                                                                              auspices of the Western Pacific Fishery                  The oceanic whitetip shark was also
                                                      observer nor effort data were available                 Management Council (WPFMC). From
                                                      for these fleets. Over the same time                                                                          once described as the most common
                                                                                                              1995–2006, oceanic whitetip sharks                    pelagic shark throughout the warm-
                                                      period (from 1995 to 2009) rates of                     comprised approximately 3 percent of
                                                      fishing mortality consistently increased,                                                                     temperate and tropical waters in the
                                                                                                              the total shark catch (Brodziak et al.,               Atlantic and beyond the continental
                                                      driven mainly by the increased effort in                2013). Based on observer data from the
                                                      the longline fleet, and remained                                                                              shelf in the Gulf of Mexico (Mather and
                                                                                                              Pacific Islands Regional Observer                     Day 1954; Strasburg 1958). Oceanic
                                                      substantially above the maximum                         Program (PIROP), oceanic whitetip
                                                      sustainable yield (MSY) (i.e., the point                                                                      whitetip sharks are taken in the Atlantic
                                                                                                              shark mean annual nominal CPUE                        Ocean by longlines, purse seine nets,
                                                      at which there would be an equilibrium)                 decreased significantly from 0.428                    gillnets, trawls, and handlines; however,
                                                      for the species (Rice et al., 2015). The                sharks/1,000 hooks in 1995 to 0.036                   the large majority of the catch from
                                                      previously discussed stock assessment                   sharks/1,000 hooks in 2010. This                      1990–2014 reported to ICCAT was
                                                      report (Rice et al., 2015) attributed the               reflected a significant decrease in                   caught by longline gear (Young et al.,
                                                      greatest impact on the species to                       nominal CPUE on longline sets with                    2016). Oceanic whitetip sharks have
                                                      bycatch from the longline fishery, and                  positive catch from 1.690 sharks/1,000                exhibited a range of at-vessel mortality
                                                      lesser impacts from target longline                     hooks to 0.773 sharks/1,000 hooks, and                rates in longline gear in the Atlantic
                                                      activities and purse-seining (Rice and                  a significant increase in longline sets               Ocean between 11–34 percent
                                                      Harley 2012). In fact, Rice et al. (2015)               with zero catches from 74.7 percent in                (Beerkircher et al., 2002; Coelho et al.,
                                                      determined that fishing mortality on                    1995 to 95.3 percent in 2010. As                      2012; Fernandez-Carvalho et al., 2015)
                                                      oceanic whitetip sharks in the WCPO                     discussed previously in the Evaluation                and have been ranked as the 5th most
                                                      has increased to levels 6.5 times what is               of Demographic Risks—Abundance                        vulnerable pelagic shark in an
                                                      sustainable, thus concluding that                       section, oceanic whitetip CPUE                        Ecological Risk Assessment that
                                                      overfishing is still occurring.                         declined by more than 90 percent in the               assessed 11 species of pelagic
                                                         As a result of continued and                         Hawaii-based PLL fishery since 1995                   elasmobranchs (Cortes et al., 2010). In
                                                      increasing fishing pressure in the                      (Walsh and Clarke 2011; Brodziak et al.,              total, approximately 2,430 mt of oceanic
                                                      WCPO, size trends for oceanic whitetip                  2013). Brodziak et al. (2013) concluded               whitetip catches were reported to
                                                      have also declined, which is indicative                 that relative abundance of oceanic                    ICCAT from 1990–2014; however, this is
                                                      of overutilization of the species. For                  whitetip declined within a few years of               likely a severe underestimation of the
                                                      example, declining median size trends                   the expansion of the longline fishery,                total amount of oceanic whitetip sharks
                                                      were observed in all regions and sexes                  which suggests these fisheries are                    taken from the Atlantic. For example,
                                                      in both longline and purse seine                        contributing to the commercial                        Clarke (2008) calculated trade-based
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      fisheries until samples became too                      overutilization of oceanic whitetip                   estimates that indicate between 80,000–
                                                      scarce for analysis. These size trends                  within this portion of its range. It                  210,000 oceanic whitetip sharks were
                                                      were significant for females in the                     should be noted that while the Hawaii-                sourced from the Atlantic Ocean in 2003
                                                      longline fishery (Regions 3 and 4; See                  based PLL fishery currently catches                   alone to supply the Hong Kong fin
                                                      Figure 1 in Clarke et al., 2011a for the                oceanic whitetip shark as bycatch, the                market, which translates to
                                                      regional map), and for the purse seine                  majority of individuals are now released              approximately 3,000–8,000 mt.
                                                      fishery (Region 3). Regions 3 and 4 (i.e.,              alive in this fishery and the number of                  In the Northwest Atlantic, the oceanic
                                                      the equatorial region of the WCPO)                      individuals kept has been on a declining              whitetip is caught incidentally as
                                                      represent the species’ core habitat areas,              trend. For example, according to the                  bycatch by a number of fisheries,


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                                                      96316               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      including (but not limited to) the U.S.                 potential efficacy of these management                whitetip sharks are taken as bycatch in
                                                      Atlantic PLL fishery, the Cuban ‘‘sport’’               measures for reducing the threat of                   numerous fisheries operating in the
                                                      fishery (‘‘sport’’ = private artisanal and              overutilization of the oceanic whitetip               South Atlantic, including Brazilian,
                                                      commercial), and the Colombian                          shark population in this region;                      Uruguayan, Taiwanese, Japanese,
                                                      oceanic industrial longline fishery                     therefore, under current management                   Venezuelan, Spanish and Portuguese
                                                      operating in the Caribbean                              measures, including the implementation                longline fisheries; however, the largest
                                                      (E-CoP16Prop.42, 2013). In the United                   of ICCAT Recommendation 10–07 (see                    oceanic whitetip catching country in
                                                      States, oceanic whitetip sharks are                     Factor D—Inadequacy of Existing                       this region is Brazil. As noted in the
                                                      caught as bycatch in PLL fisheries                      Regulatory Mechanisms for more                        Evaluation of Demographic Risks—
                                                      targeting tuna and swordfish in this                    details), the threat of overutilization is            Abundance section of this proposed
                                                      region, with an estimated 8,526                         not likely as significant in this area                rule, oceanic whitetips were historically
                                                      individuals recorded as captured in U.S.                relative to other portions of the species’            reported as the second-most abundant
                                                      fisheries logbooks from 1992 to 2000                    range.                                                shark in research surveys from
                                                      (Baum et al., 2003) and a total of 912                     In Cuba, some evidence suggests a                  northeastern Brazil between 1992 and
                                                      individuals recorded by observers in the                historical decline of oceanic whitetip                1997 (FAO 2012), with a high CPUE rate
                                                      NMFS Pelagic Observer Program from                      shark may have occurred, although this                of 2.18 individuals per 1,000 hooks
                                                      1992–2015. Relative to target species,                  is uncertain. In the 1960s, the oceanic               (Domingo et al., 2007). More recently,
                                                      oceanic whitetip sharks are caught                      whitetip shark was characterized as the               however, average CPUE in this same
                                                      infrequently and only incidentally on                   most abundant species off the                         area has seemingly declined. It also
                                                                                                              northwestern coast of Cuba, but since                 appears that the percentage of mature
                                                      PLL vessels fishing for tuna and tuna-
                                                                                                              1985, a substantial decline was observed
                                                      like species. Landings and dead                                                                               sharks has declined in recent years
                                                                                                              in some species, including the oceanic
                                                      discards of sharks by U.S. PLL fishers in                                                                     compared to surveys conducted in the
                                                                                                              whitetip. Variations in fishing effort and
                                                      the Atlantic are monitored every year                                                                         1990s. For example, the frequency of
                                                                                                              changes in the fishery make it difficult
                                                      and reported to ICCAT. Overall, very                                                                          mature sharks ≥180 cm was higher in
                                                                                                              to assess the present condition of the
                                                      few oceanic whitetip sharks were                                                                              the 1990s than in years 2005–2009. It
                                                                                                              resource, but since 1981 there has been
                                                      landed by the commercial fishery,                                                                             should be noted that the data from
                                                                                                              a tendency towards decline (Claro et al.,
                                                      except for two peaks of about 1,250 and                                                                       2005–2009 represents a much larger
                                                                                                              2001). Recent monitoring studies of a
                                                      1,800 fish in 1983 and 1998,                                                                                  area of the southwestern and equatorial
                                                                                                              prominent fishing base in Cojimar, Cuba
                                                      respectively, but otherwise total catches               recorded the oceanic whitetip shark                   Atlantic and has a much larger sample
                                                      never exceeded 450 fish (NMFS 2009).                    comprising only 2–5 percent of the                    size (n = 1218; Tolotti et al., 2013) than
                                                      Commercial landings of oceanic                          shark landings from 2008–2011 (Cuba                   the results from the surveys conducted
                                                      whitetip sharks in the U.S. Atlantic                    Department of Fisheries 2016). In                     in the 1990s (n = 258; Lessa et al., 1999).
                                                      have been variable, but averaged                        contrast, Valdés et al., (2016) show a               However, the two study areas do
                                                      approximately 1,077.4 lb (488.7 kg;                     steady pattern of abundance for the                   overlap and provide some indication
                                                      0.4887 mt) per year from 2003–2013.                     oceanic whitetip shark in Cuban fishery               that the size composition of oceanic
                                                      Although oceanic whitetip sharks have                   landings along the northwestern coast                 whitetip sharks in the southwestern
                                                      been prohibited on U.S. Atlantic                        from 2010 to 2016. However, sharks                    Atlantic may be shifting downwards.
                                                      commercial fishing vessels with pelagic                 caught in Cuban fisheries are never                   Catches of oceanic whitetip in the
                                                      longline gear onboard since 2011, they                  discarded, but rather utilized for either             Brazilian tuna longline fishery have also
                                                      can still be caught as bycatch, caught                  human consumption or bait. Cuba is not                shown a substantial decline, decreasing
                                                      with other gears, and are occasionally                  a member of ICCAT, and thus ICCAT                     from ∼640t in 2000 to only 80t in 2005
                                                      landed. However, since the ICCAT                        Recommendation 10–07 on the                           (Hazin et al., 2007). According to the
                                                      retention prohibition was implemented                   retention prohibition of oceanic                      ICCAT nominal catch database, catches
                                                      in 2011, estimated commercial landings                  whitetip sharks is not applicable in                  of oceanic whitetip shark by Brazilian
                                                      of oceanic whitetip declined from 1.1                   Cuban waters. Further, evidence                       vessels continued to decline, with 0 mt
                                                      mt in 2011 to only 0.03 mt in 2013                      suggests there is a prevalence of small,              reported from 2009–2012 and only 12
                                                      (NMFS 2012; 2014). As discussed                         immature individuals in Cuban catches,                mt from 2013–2014. Although robust
                                                      previously, the oceanic whitetip                        which suggests the possibility of an                  standardized CPUE data are not
                                                      population size has likely declined                     important nursery area for this species               available for the species, making it
                                                      significantly in this region due to                     in the region. However, because these                 difficult to evaluate whether the decline
                                                      historical exploitation of the species                  animals are small and of less value to                in catches resulted from decreased
                                                      since the onset of industrial fishing                   the fishermen, they are typically using               abundance or from changes in
                                                      (refer back to the Demographic Risk                     the juvenile C. longimanus as bait while              catchability, related, for instance, to
                                                      Assessment—Abundance section);                          at sea, a practice which is likely in                 targeting strategies (Hazin et al., 2007),
                                                      however, results of the ERA team’s                      conflict with sustainable fisheries                   a recent tagging study indicates that the
                                                      analysis show that the oceanic whitetip                 management and conservation                           preferred horizontal and vertical habitat
                                                      shark population in this region has                     objectives (Valedz et al., 2016) and may              of oceanic whitetip shark, including
                                                      potentially stabilized since the 1990s/                 be contributing to overutilization of the             potential nursery areas, is heavily
                                                      early 2000s (Young et al., 2016). The                   species.                                              impacted by the industrial longline
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      potential stabilization of oceanic                         Farther south, it is likely that                   fishery. Telemetry data provides
                                                      whitetip sharks occurred concomitantly                  overutilization is an ongoing threat in               evidence that the equatorial region off
                                                      with the first Federal Fishery                          the South Atlantic. Although fishing                  Northeast Brazil is an area where the
                                                      Management Plan for Sharks in the                       effort has been high and began                        oceanic whitetip shark shows a high
                                                      Northwest Atlantic Ocean and Gulf of                    intensifying in the southern Atlantic                 degree of philopatry (i.e., site fidelity).
                                                      Mexico, which directly manages oceanic                  Ocean after the 1990s (Camhi et al.,                  This same area also happens to be
                                                      whitetip shark under the pelagic shark                  2008), there is limited information on                where the highest level of fishing effort
                                                      group, and includes regulations on trip                 the catch rates or trends of oceanic                  is concentrated. For example, from
                                                      limits and quotas. This indicates the                   whitetip sharks in this region. Oceanic               1999–2011, despite a wide distribution


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                            96317

                                                      of fishing sets, the area with the highest              Although information from this region                 implementation of any regulatory
                                                      effort concentration by the Brazilian                   is limited and catch data are severely                measures, and may therefore be
                                                      longline fleet was bound by the 5° N.                   underreported, the IOTC (the RFMO                     indicative of a population decline in Sri
                                                      and the 15° S. parallels and by the 040°                that manages tuna and tuna-like species               Lankan waters as a result of
                                                      W. and 035° W. meridians (i.e., the                     in the Indian Ocean and adjacent                      overutilization. Similarly, the
                                                      equatorial region of Northeast Brazil).                 waters) reports that catches of oceanic               substantial decline of oceanic whitetip
                                                      Thus, the majority of fishing effort by                 whitetip shark are ranked as ‘‘High,’’                sharks in the Maldives, from comprising
                                                      the Brazilian fleet directly overlaps the               meaning the accumulated catches from                  29 percent of the longline shark catch in
                                                      preferred habitat area of oceanic                       1950–2010 make up 5 percent or more                   the 1980s to only 3.5 percent of landings
                                                      whitetip sharks (Tolotti et al., 2015a).                of the total catches of sharks recorded               from 2000–2004 (refer back to the
                                                      Further, many studies show a                            (Herrera and Pierre 2011). In fact, a                 Demographic Assessment—Abundance
                                                      substantially high percentage of                        recent study estimated that the oceanic               section of this proposed rule), is likely
                                                      juveniles in the catches from this region               whitetip shark comprises 11 percent of                the result of overutilization of the
                                                      (Coelho et al., 2009; Tambourgi et al.,                 the total estimated shark catch in the                species. In fact, Anderson et al. (2011)
                                                      2013; Tolotti et al., 2013; Frédou et al.,             Indian Ocean (Murua et al., 2013a). It is             determined that the shark stocks that
                                                      2015), which suggests the presence of                   also ranked as the 5th most vulnerable                supported the shark fishery were
                                                      nursery habitat. For example,                           shark species caught in longline                      sequentially overfished, with the
                                                      Tambourgi et al. (2013) found that 80.5                 fisheries in the region (out of 16 species            decline in pelagic shark catches the
                                                      percent of females were immature and                    assessed) and the most vulnerable shark               result of high (and likely unsustainable)
                                                      72.4 percent of males were immature in                  species caught in purse seine gear due                levels of fishing by overseas fisheries.
                                                      the Brazilian pelagic longline fishery                  to its high susceptibility (Murua et al.,                The IOTC’s Working Group on
                                                      between December 2003 and December                      2012; IOTC 2015a). Oceanic whitetip                   Ecosystems and Bycatch stated that at
                                                      2010. Thus, it is likely that the intensive             sharks also exhibit relatively higher at-             current catch levels (i.e., average of 347
                                                      fishing pressure of oceanic whitetip                    vessel mortality rates in longlines in this           mt prior to 2013), the Indian Ocean
                                                      across its preferred vertical and                       region compared to other regions (i.e.,               stock of oceanic whitetip was at
                                                      horizontal habitat, including nursery                   58 percent; IOTC 2015a) and likely have               considerable risk. Given the previous
                                                      areas in Brazilian waters, is negatively                high mortality rates in purse seine and               discussion regarding likely abundance
                                                      impacting oceanic whitetip sharks at all                gillnet fisheries as well.                            declines in this region, combined with
                                                      life stages, and contributing to the                                                                          the high level of fishing pressure on
                                                                                                                 The main fleets catching oceanic                   oceanic whitetip sharks in the Indian
                                                      overutilization of the species. In                      whitetip in the Indian Ocean in recent
                                                      addition to information from Brazil, a                                                                        Ocean and the species’ low-moderate
                                                                                                              years (2011–2014) include: Indonesia,                 productivity, it is therefore likely that
                                                      recent study that synthesized                           Sri Lanka, I.R. Iran, EU (Spain), China,
                                                      information on shark catch rates for the                                                                      the substantially high catches of oceanic
                                                                                                              Madagascar, and Seychelles. The                       whitetip sharks in the Indian Ocean
                                                      major shark species caught by multiple                  reporting of catches of oceanic whitetip
                                                      fleets in the South Atlantic from 1979                                                                        (5,000+ mt estimated for 2013 and 2014)
                                                                                                              sharks shows an unusual trend in 2013                 are in excess of what is sustainable and
                                                      and 2011 (e.g., Belize, Bolivia, Brazil,                and 2014, with 5,000+ mt reported to
                                                      Canada, Spain, Guyana, Honduras,                                                                              are likely contributing to overutilization
                                                                                                              the IOTC. These trends are dominated                  of the species in the Indian Ocean.
                                                      Iceland, Japan, Saint Kitts and Nevis,                  by the Sri Lankan combination longline-                  Finally, the ERA team determined
                                                      Korea, Morocco, Panama, Portugal,                       gillnet fisheries, and an addition of                 that demand from the international
                                                      Taiwan, United Kingdom, Uruguay,                        proportionately very large catches by                 shark fin trade is the main economic
                                                      United States, Saint Vincent and the                    India (IOTC 2015b). Prior to the unusual              force driving the retention and
                                                      Grenadines, and Vanuatu) concluded                      trend in 2013 and 2014, the trend in                  subsequent finning of oceanic whitetip
                                                      that declines of many shark species,                    oceanic whitetip catch shows a                        sharks taken as bycatch in commercial
                                                      including the oceanic whitetip,                         substantial increase throughout the                   fisheries worldwide, as they are
                                                      coincided with significant fishing effort               1990s, which likely corresponds with                  considered a preferred species for their
                                                      expansion, a lack of regulatory measures                the rise in the shark fin trade (Clarke et            fins, command high prices in the
                                                      to deal with shark bycatch, finning and                 al., 2007), a peak at 3,050 mt in 1999,               international market (U.S. $45–85/kg;
                                                      directed fishing for sharks by some                     followed by a sharp and continued                     E-CoP16Prop.42 (2013)) and make up
                                                      fleets (Barreto et al., 2015). Based on the             decline in the 2000s. Although the IOTC               part of the ‘‘first choice’’ category in the
                                                      foregoing information, the ERA team                     database is constrained by a number of                China, Hong Kong Special
                                                      concluded, and we agree, that                           limitations, information from some                    Administrative Region (SAR) fin market
                                                      overutilization in the South Atlantic                   fleets catching oceanic whitetip shark                (Vannuccini 1999). From 2000 to 2011,
                                                      Ocean is likely a threat contributing to                indicate declines in catches as well. For             China, Hong Kong SAR maintained its
                                                      the oceanic whitetip’s risk of extinction               example, from 1996–2004, landings of                  position as the world’s largest trader of
                                                      in the foreseeable future.                              oceanic whitetip in Sri Lanka peaked at               shark fins, controlling the majority of
                                                         Overutilization is also likely a threat              approximately 3,000 mt in 1999 and                    global trade. In order to determine the
                                                      to oceanic whitetip sharks in the Indian                show a declining trend thereafter                     species composition of the shark fin
                                                      Ocean. The oceanic whitetip is reported                 (Hasarangi et al., 2012) to less than 300             trade, Clarke et al., (2006a) analyzed
                                                      as bycatch in all three major fisheries                 mt in 2014. It is only in the last two                1999–2001 Hong Kong trade auction
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      operating in the Indian Ocean; the                      years (2013 and 2014) that annual shark               data in conjunction with species-
                                                      species is considered ‘‘frequent’’ in both              production has seen a significant                     specific fin weights and genetic
                                                      longline and purse seine fisheries, and                 decline in Sri Lanka due to regulatory                information to estimate the annual
                                                      ‘‘very frequent’’ in the gillnet fishery                measures (Jayathilaka and Maldeniya                   number of globally traded shark fins.
                                                      (Murua et al., 2013b), with gillnet                     2015). Most recently, Sri Lanka reported              Using this approach, the authors
                                                      fisheries reporting the highest nominal                 only 88 mt of oceanic whitetip shark                  discovered that oceanic whitetip sharks
                                                      catches of sharks in 2014, and making                   catches to IOTC in 2015. Thus, the                    are sold under their own category ‘‘Liu
                                                      up nearly 40 percent of total catches                   decline in oceanic whitetip catches in                Qiu’’ and represent approximately 1.8
                                                      (Ardill et al., 2011; IOTC 2015a).                      Sri Lanka occurred prior to the                       percent of the Hong Kong shark fin


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                                                      96318               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      market (Clarke et al., 2006a). This level               backlash against conspicuous                          demonstrated, the threat of
                                                      of oceanic whitetip shark fins in the                   consumption in China, combined with                   overutilization of oceanic whitetip
                                                      trade translates to an estimated median                 global conservation momentum, appears                 sharks may be exacerbated by the
                                                      of 700,000 oceanic whitetip sharks                      to have had some impact on traded                     species’ low-moderate productivity
                                                      (range: 200,000–1,200,000 individuals),                 volumes as well (Eriksson and Clarke                  combined with the species’ tendency to
                                                      with an equivalent median biomass of                    2015). Despite the potential                          remain in the surface mixed layer of the
                                                      around 21,000 mt (range 9,000–48,000                    improvements in the trade, it is clear                water column (i.e., 0–152 m) and within
                                                      mt), traded annually (Clarke et al.,                    that the shark fin trade has asserted and             warm, tropical waters where the
                                                      2006b). The lack of estimates of the                    continues to assert significant pressure              majority of fishing effort is often most
                                                      global population makes it difficult to                 on oceanic whitetip sharks. Given that                concentrated. The severity of the threat
                                                      put these trade-based estimates into                    oceanic whitetip fins are among the                   of overutilization is dependent upon
                                                      perspective. However, given the                         most prized in the international shark                other risks and threats to the species,
                                                      minimum estimate of ∼9,000 mt traded                    fin trade and obtain a high value per kg,             such as its abundance (as a demographic
                                                      annually is in excess of the total                      combined with recent evidence of                      risk) as well as its level of protection
                                                      biomass estimated for oceanic whitetip                  oceanic whitetip fins in several                      from fishing mortality throughout its
                                                      for the entire Western and Central                      prominent markets, the incentive to take              range. Given the above analysis and best
                                                      Pacific Ocean in 2010 (i.e., 7,295 mt),                 oceanic whitetip sharks for their fins                available information, as well as
                                                      the effect of the removals (for the shark               remains high and is an ongoing threat                 evidence that the species’ current trends
                                                      fin trade) on the ability of the overall                contributing to the overutilization of the            in abundance place its future
                                                      population to sustain this level of                     species. This is further evidenced by                 persistence in question due to
                                                      exploitation is likely substantial.                     recent incidents of illegal trafficking of            overutilization, we find that
                                                         In more recent years, genetic testing                oceanic whitetip fins, which indicate                 overutilization for commercial purposes
                                                      conducted in various fish markets                       that oceanic whitetip sharks are still                is a threat that places the species on a
                                                      provides additional confirmation of the                 sought after for their fins and continue              trajectory towards being in danger of
                                                      ongoing utilization of oceanic whitetip                 to experience pressure from demands of                extinction in the foreseeable future
                                                      shark in the shark fin trade. For                       the fin trade (see Inadequacy of Existing             throughout all or a significant portion of
                                                      example, a genetic sampling study                       Regulatory Mechanisms section below                   its range.
                                                      conducted on shark fins collected from                  for more details). In addition, a surge in
                                                      several fish markets throughout                                                                               Inadequacy of Existing Regulatory
                                                                                                              the trade of shark meat has occurred in               Mechanisms
                                                      Indonesia determined that oceanic                       recent years. This could be the result of
                                                      whitetip shark fins were present and                                                                             The ERA team evaluated existing
                                                                                                              a number of factors, but taking the shark
                                                      comprised approximately 1.72 percent                                                                          regulatory mechanisms to determine
                                                                                                              fin and shark meat aggregate trends
                                                      of the fins tested (Sembiring et al.,                                                                         whether they may be inadequate to
                                                                                                              together indicate that shark fin supplies
                                                      2015). In a genetic barcoding study of                                                                        address threats to the oceanic whitetip
                                                                                                              are limited by the existing levels of
                                                      shark fins from markets in Taiwan, the                                                                        shark. Existing regulatory mechanisms
                                                                                                              chondrichthyan capture production, but
                                                      oceanic whitetip was 1 of 20 species                                                                          assessed include federal, state, and
                                                                                                              shark meat is underutilized by
                                                      identified and comprised 0.38 percent                                                                         international regulations for commercial
                                                                                                              international markets (Dent and Clarke
                                                      of average landings from 2001–2010                                                                            fisheries, as well as the international
                                                                                                              2015). This suggests that historically                trade in shark products. Below is a
                                                      (Liu et al., 2013). In another genetic                  underutilized chondrichthyan species
                                                      barcoding study of fins at the Deira fish                                                                     description and evaluation of current
                                                                                                              will be increasingly utilized for their               and relevant domestic and international
                                                      market in Dubai, United Arab Emirates
                                                                                                              meat. The ERA team considered                         management measures that may affect
                                                      (with sharks originating from Oman),
                                                                                                              whether the recent shift in demand                    the oceanic whitetip shark. More
                                                      oceanic whitetip shark comprised 0.45
                                                                                                              away from shark fins to shark meat                    information on these management
                                                      percent of fins tested (Jabado et al.,
                                                                                                              would have any considerable impact on                 measures can be found in the status
                                                      2015). Although it is uncertain whether
                                                                                                              the oceanic whitetip shark. Although                  review report (Young et al., 2016) and
                                                      these studies are representative of the
                                                                                                              there are markets for low-value shark                 other recent status reviews of other
                                                      entire market within each respective
                                                                                                              meat such as oceanic whitetip, the                    shark species (Miller et al., 2013; 2014).
                                                      country, results of these genetic tests
                                                                                                              retention bans for the species in all                 The following section will first discuss
                                                      confirm the continued presence of
                                                      oceanic whitetip shark fins in various                  relevant RFMOs will likely dampen this                U.S. domestic regulatory measures
                                                      markets throughout its range.                           threat. Thus, the ERA team did not                    applicable to the oceanic whitetip shark,
                                                         Recent studies indicate that due to a                think this increase in demand for shark               followed by international regulations
                                                      waning interest in fins as well as                      meat would create a significant new                   that may affect sharks in general, as well
                                                      increased regulations to curb shark                     threat to the species.                                as the oceanic whitetip shark in
                                                      finning, the shark fin market is                           Overall, based on the best available               particular.
                                                      declining. In fact, the trade in shark fins             information, the ERA team concluded,
                                                      through China, Hong Kong SAR, which                     and we agree, that overutilization is the             U.S. Domestic Regulatory Mechanisms
                                                      has served as an indicator of the global                single most important threat                            In the U.S. Pacific, highly migratory
                                                      trade for many years, fell by 22 percent                contributing to the extinction risk of the            species (HMS) fishery management is
                                                      in 2012. Additionally, current                          oceanic whitetip shark. Due to the                    the responsibility of adjacent states and
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      indications are that the shark fin trade                paucity of available data from some                   three regional management councils that
                                                      through Hong Kong SAR and China will                    regions, the ERA team acknowledged                    were established by the Magnuson-
                                                      continue to contract (Dent and Clarke                   that there are some uncertainties in                  Stevens Fishery Conservation and
                                                      2015). The pattern of trade decline                     assessing the contribution of the threat              Management Act: The Pacific Fishery
                                                      closely matches the pattern in                          of overutilization to the extinction risk             Management Council (PFMC), the North
                                                      chondrichthyan capture production and                   of the oceanic whitetip shark                         Pacific Fishery Management Council,
                                                      thus suggests a strong link between the                 throughout its range. As results from the             and the Western Pacific Fishery
                                                      quantity harvested and the quantity                     Cortés et al. (2012) and Murua et al.                Management Council (WPFMC). The
                                                      traded. However, a government-led                       (2012) Ecological Risk Assessments                    PFMC manages highly migratory species


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                          96319

                                                      off the coasts of Washington, Oregon,                   used for commercial fishing for HMS in                different shark quota complexes
                                                      and California; however, the oceanic                    the Convention Area (PIRO 2015). As                   annually and will close the fishing
                                                      whitetip shark is not one of the species                noted previously in the Overutilization               season for each fishery after 80 percent
                                                      they actively manage, as its distribution               for Commercial, Recreational, Scientific,             of the respective quota has been landed
                                                      favors more tropical waters. The PFMC                   or Educational Purposes section of this               or is projected to be landed. Atlantic
                                                      is, however, actively engaged in                        proposed rule, oceanic whitetip sharks                sharks and shark fins from federally
                                                      international fishery management                        are still caught as bycatch in this                   permitted vessels may be sold only to
                                                      organizations that manage fish stocks                   fishery, but the majority of individuals              federally permitted dealers. Logbook
                                                      that migrate through the PFMC’s area of                 are now released alive. Though post-                  reporting is required for selected fishers
                                                      jurisdiction. In 2011, NMFS published a                 release survival rates are unknown, it is             with a federal commercial shark permit.
                                                      final rule (76 FR 68332) issuing                        likely these regulations are helping to               In addition, fishers may be selected to
                                                      regulations to implement decisions of                   reduce overall mortality of the species               carry an observer onboard, and some
                                                      the IATTC, including the Resolution                     to some degree.                                       fishers are subject to vessel and
                                                      Prohibiting the Retention of Oceanic                       In the Northwest Atlantic, the U.S.                electronic monitoring systems
                                                      Whitetip Sharks (C–11–10), which is                     Atlantic HMS Management Division                      depending on the gear used and where
                                                      described in more detail below in the                   within NMFS develops regulations for                  they fish. In terms of processing sharks
                                                      International Regulatory Mechanisms                     Atlantic HMS fisheries, and primarily                 landed, the head may be removed and
                                                      section of this proposed rule. According                coordinates the management of Atlantic                the shark may be gutted and bled, but
                                                      to the final rule mentioned previously,                 HMS fisheries in Federal waters                       the shark cannot be filleted or cut into
                                                      U.S. fisheries that target highly                       (domestic) and the high seas                          pieces while onboard the vessel and all
                                                      migratory species rarely retain,                        (international), while individual states              fins, including the tail, must remain
                                                      transship, land, or sell this species in                establish regulations for HMS in state                naturally attached to the carcass through
                                                      the IATTC Convention Area.                              waters. The NMFS Atlantic HMS                         offloading.
                                                         The WPFMC has jurisdiction over the                  Management Division currently                            In 2011, NMFS published final
                                                      EEZs of Hawaii, Territories of American                 manages 42 species of sharks (excluding               regulations to implement decisions of
                                                      Samoa and Guam, Commonwealth of                         spiny dogfish) under the Consolidated                 ICCAT (i.e., Recommendation 10–07 for
                                                      the Northern Mariana Islands, and the                   Atlantic HMS FMP (NMFS 2006). The                     the conservation of oceanic whitetip
                                                      Pacific Remote Island Areas, as well as                 management of these sharks is divided                 sharks), which prohibits retention of
                                                      the domestic fisheries that occur on the                into five species groups: Large coastal               oceanic whitetip sharks in the PLL
                                                      adjacent high seas. The WPFMC                           sharks, small coastal sharks, pelagic                 fishery and on recreational (HMS
                                                      developed the Pelagics Fishery                          sharks, smoothhound sharks, and                       Angling and Charter headboat permit
                                                      Ecosystem Plan (FEP; formerly the                       prohibited sharks. Oceanic whitetip                   holders) vessels that possess tuna,
                                                      Fishery Management Plan for the                         sharks are managed under the pelagic                  swordfish, or billfish (76 FR 53652). The
                                                      Pelagic Fisheries of the Western Pacific                sharks group. One way that the HMS                    implementation of regulations to
                                                      Region) in 1986 and NMFS, on behalf of                  Management Division controls and                      comply with ICCAT Recommendation
                                                      the U.S. Secretary of Commerce,                         monitors commercial harvest is by                     10–07 for the conservation of oceanic
                                                      approved the Plan in 1987. Under the                    requiring U.S. commercial Atlantic                    whitetip sharks is likely the most
                                                      FEP, the oceanic whitetip shark is                      HMS fishermen who fish for or sell                    influential regulatory mechanism in
                                                      designated as a Pelagic Management                      sharks to have a Federal Atlantic                     terms of reducing mortality of oceanic
                                                      Unit Species and is subject to                          Directed or Incidental shark limited                  whitetip sharks in the U.S. Atlantic. It
                                                      regulations. These regulations are                      access permit. These permits are                      should be noted that oceanic whitetip
                                                      intended to minimize impacts to                         administered under a limited access                   sharks are still occasionally caught as
                                                      targeted stocks as well as protected                    program, and NMFS is no longer issuing                bycatch and landed in this region
                                                      species. Fishery data are also analyzed                 new shark permits. As of October 2015,                despite its prohibited status in ICCAT
                                                      in annual reports and used to amend the                 224 U.S. fishermen are permitted to                   associated fisheries (NMFS 2012; 2014),
                                                      FEP as necessary. In Hawaii and                         target sharks managed by the HMS                      as retention is permitted in other
                                                      American Samoa, oceanic whitetip                        Management Division in the Atlantic                   authorized gears other than pelagic
                                                      sharks are predominantly caught in                      Ocean and Gulf of Mexico, and an                      longlines (e.g., gillnets, bottom
                                                      longline fisheries that operate under                   additional 275 fishermen are permitted                longlines); however, these numbers
                                                      extensive regulatory measures,                          to land sharks incidentally (NMFS                     have decreased. Prior to the
                                                      including gear, permit, logbook, vessel                 2015). Under a directed shark permit,                 implementation of the retention
                                                      monitoring system, and protected                        there is no directed numeric retention                prohibition on oceanic whitetip, an
                                                      species workshop requirements. In                       limit for pelagic sharks, subject to quota            analysis of the 2005–2009 HMS logbook
                                                      2015, NMFS published a final rule to                    limitations. An incidental permit allows              data indicated that, on average, a total
                                                      implement decisions of the WCPFC to                     fishers to keep up to a total of 16 pelagic           of 50 oceanic whitetip sharks were kept
                                                      prohibit the retention of oceanic                       or small coastal sharks (all species                  per year, with an additional 147 oceanic
                                                      whitetip sharks in fisheries operating                  combined) per vessel per trip. Current                whitetip sharks caught per year and
                                                      within the WCPFC’s area of competence                   authorized gear types for oceanic                     subsequently discarded (133 released
                                                      (or Convention Area), which comprises                   whitetip sharks include: Bottom                       alive and 14 discarded dead). Thus,
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      the majority of the Western and Central                 longline, gillnet, rod and reel, handline,            without the prohibition, approximately
                                                      Pacific Ocean. The regulations were                     or bandit gear. There are no restrictions             197 oceanic whitetip sharks could be
                                                      published in the Federal Register on                    on the types of hooks that may be used                caught and 64 oceanic whitetip sharks
                                                      February 19, 2015 (80 FR 8807) and                      to catch oceanic whitetip sharks, and                 (32 percent) could die from being
                                                      include prohibitions on the retention of                there is no commercial minimum size                   discarded dead or retained each year
                                                      the oceanic whitetip shark, as well as                  limit. The annual quota for pelagic                   (NMFS 2011). Since the prohibition was
                                                      requirements to release any oceanic                     sharks (other than blue sharks or                     implemented in 2011, estimated
                                                      whitetip caught. These regulations are                  porbeagle sharks) is currently 488 mt                 commercial landings of oceanic
                                                      applicable to all U.S. fishing vessels                  dressed weight. NMFS monitors the                     whitetip declined from only 1.1 mt in


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                                                      96320               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      2011 to only 0.03 mt (dressed weight) in                behind the overutilization of many                    and trip limits, species-specific
                                                      2013 (NMFS 2012; 2014). In fact, from                   global shark species, including the                   retention prohibitions in PLL gear, and
                                                      2013–2014, NMFS reported a total of 81                  oceanic whitetip, the U.S. participation              finning regulations are not in and of
                                                      oceanic whitetip interactions, with 83                  in this trade appears to be diminishing.              themselves inadequate such that they
                                                      percent (67 individuals) released alive                 In 2012, the value of fins also decreased,            are contributing to the global extinction
                                                      and 17 percent (14 individuals)                         suggesting that the worldwide demand                  risk of the species. In fact, it is likely
                                                      discarded dead (NMFS 2014; 2015).                       for fins may be on a decline. For                     that the stable CPUE trend observed for
                                                      While the retention ban for oceanic                     example, a decrease in U.S. fin prices                the oceanic whitetip shark in the
                                                      whitetip does not prevent incidental                    coincided with the implementation of                  Northwest Atlantic is largely a result of
                                                      catch or subsequent at-vessel and post-                 fin bans in various U.S. states in 2012               the implementation of management
                                                      release mortality, it likely provides                   and 2013, and U.S. shark fin exports                  measures for pelagic sharks under the
                                                      minor ecological benefits to oceanic                    have continued on a declining trend                   U.S. HMS FMP. However, because
                                                      whitetip sharks via a reduction in                      (Miller et al., 2013). However, it should             oceanic whitetip sharks are highly
                                                      overall fishing mortality in the Atlantic               be noted that the continued decline is                migratory and frequently move beyond
                                                      PLL fishery (NMFS 2011).                                also likely a result of the waning global             U.S. jurisdiction, these regulatory
                                                         In addition to general commercial                    demand for shark fins altogether.                     mechanisms are limited on the global
                                                      fishing regulations for management of                   Similarly, many U.S. states, especially               stage in that they only provide
                                                      highly migratory species, the United                    on the West Coast, and U.S. Flag Pacific              protections to oceanic whitetip sharks
                                                      States has implemented a couple of                      Island Territories have also passed fin               while in U.S. waters. While this does
                                                      significant laws for the conservation and               bans and trade regulations,                           not make them inadequate in terms of
                                                      management of sharks: the Shark                         subsequently decreasing the United                    their purpose of protecting oceanic
                                                      Finning Prohibition Act and the Shark                   States’ contribution to the fin trade. For            whitetip sharks while in U.S. waters,
                                                      Conservation Act. The Shark Finning                     example, after the State of Hawaii                    finning and retention bans are likely
                                                      Prohibition Act was enacted in                          prohibited finning in its waters and                  inadequate in other parts of the world
                                                      December 2000 and implemented by                        required shark fins to be landed with                 to prevent further population declines
                                                      final rule on February 11, 2002 (67 FR                  their corresponding carcasses in the                  of oceanic whitetip as a result of
                                                      6194), and prohibited any person under                  state in 2000, the shark fin exports from             overutilization (as discussed in detail
                                                      U.S. jurisdiction from: (i) Engaging in                 the United States into Hong Kong                      below). Therefore, given the significant
                                                      the finning of sharks; (ii) possessing                  declined significantly in 2001 (54                    abundance declines observed for the
                                                      shark fins aboard a fishing vessel                      percent decrease, from 374 to 171 t) as               species as a result of overutilization,
                                                      without the corresponding carcass; and                  Hawaii could therefore no longer be                   and the fact that regulatory mechanisms
                                                      (iii) landing shark fins without the                    used as a fin trading center for the                  are largely inadequate elsewhere across
                                                      corresponding carcass. It also                          international fisheries operating and                 the species’ range, it is unlikely that
                                                      implemented a five percent fin to                       finning in the Central Pacific (Clarke et             U.S. regulatory mechanisms alone are
                                                      carcass ratio, creating a rebuttable                    al., 2007). With regard to oceanic                    enough to mitigate for threats
                                                      presumption that fins landed from a                     whitetip sharks, the finning regulations              contributing to the species’ global
                                                      fishing vessel or found on board a                      introduced in 2001 in the U.S. Hawaii-                extinction risk.
                                                      fishing vessel were taken, held, or                     based longline fishery have acted to
                                                      landed in violation of the Act if the total                                                                   International Regulatory Mechanisms
                                                                                                              reduce mortality on oceanic whitetip                     Regarding international regulatory
                                                      weight of fins landed or found on board
                                                                                                              and other large shark species (Walsh et               mechanisms, the ERA team expressed
                                                      the vessel exceeded five percent of the
                                                                                                              al., 2009). Prior to the ban, from 1995–              significant concern regarding existing
                                                      total weight of carcasses landed or
                                                                                                              2000, the fins were taken from a large                regulations to control bycatch-related
                                                      found on board the vessel. The Shark
                                                                                                              proportion of captured oceanic whitetip               mortality, finning of oceanic whitetip
                                                      Conservation Act was signed into law
                                                                                                              with the remaining carcass being                      sharks for the international shark fin
                                                      on January 4, 2011, and implemented by
                                                                                                              discarded (72.3 percent in deep sets and              trade, and illegal fishing and trafficking
                                                      final rule on June 29, 2016 (81 FR
                                                                                                              52.7 percent from shallow sets), as was               activities. The ERA team recognized that
                                                      42285), and, with a limited exception
                                                                                                              the case with other large sharks (Walsh               the number of international regulatory
                                                      for smooth dogfish (Mustelus canis),
                                                                                                              et al., 2009). From 2004–2006, following              mechanisms for sharks in general, and
                                                      prohibits any person from removing
                                                      shark fins at sea, or possessing,                       the implementation of the new                         the oceanic whitetip shark in particular,
                                                      transferring, or landing shark fins unless              regulations, almost all sharks were                   have been on the rise in recent years.
                                                      they are naturally attached to the                      released, although some were dead on                  For example, the oceanic whitetip shark
                                                      corresponding carcass.                                  release. Overall, minimum mortality                   was listed under Appendix II of the
                                                         As expected, U.S. exports of dried                   estimates declined substantially as a                 Convention on International Trade in
                                                      shark fins dropped significantly after                  result of the finning regulations, from               Endangered Species of Wild Flora and
                                                      the passage of the Shark Finning                        81.9 percent to 25.6 percent in deep sets             Fauna (CITES) in 2014. CITES is an
                                                      Prohibition Act. In 2011, with the                      and from 61.3 percent to 9.1 percent in               international agreement between
                                                      passage of the U.S. Shark Conservation                  shallow sets (Walsh et al., 2009).                    governments, with the aim of ensuring
                                                      Act, exports of dried shark fins dropped                However, aside from this example, there               that international trade in specimens of
                                                      again, by 58 percent, to 15 mt, the                     is little information on the level of                 wild animals and plants does not
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      second lowest export amount since                       compliance with the various fisheries                 threaten their survival. International
                                                      2001. This is in contrast to the price per              management measures for sharks,                       trade in specimens of Appendix-II
                                                      kg of shark fin, which was at its highest               including oceanic whitetip, with                      species may be authorized by the
                                                      price of ∼$100/kg, and suggests that                    compliance likely variable among other                granting of an export permit or re-export
                                                      existing regulations have likely been                   countries and regions.                                certificate. No import permit is
                                                      effective at discouraging fishing for                      Overall, regulations to control for                necessary for these species under CITES
                                                      sharks solely for the purpose of the fin                overutilization of oceanic whitetip                   (although a permit is needed in some
                                                      trade. Thus, although the international                 sharks in U.S. waters, including                      countries that have taken stricter
                                                      shark fin trade is likely a driving force               fisheries management plans with quotas                measures than CITES requires).


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                           96321

                                                      However, recent data from Hong Kong’s                   Bahamas, Marshall Islands, Honduras,                  after interactions with purse seine
                                                      Agriculture Fisheries Conservation                      Sabah (Malaysia), and Tokelau (an                     fisheries (i.e., ∼85 percent in Western
                                                      Department (AFCD) suggests that these                   island territory of New Zealand) adding               and Central Pacific and Indian Ocean
                                                      measures are not adequately                             to the list in 2011, the Cook Islands in              tropical purse seine fisheries; Poisson et
                                                      implemented or enforced by all CITES                    2012, and the Federated States of                     al., (2014); Hutchinson et al., (2015)).
                                                      Parties with respect to the oceanic                     Micronesia in 2015. These ‘‘shark                     Given that oceanic whitetip sharks are
                                                      whitetip shark. Specifically, since the                 sanctuaries’’ (i.e., locations where                  captured in a net where they are unable
                                                      oceanic whitetip shark was listed under                 harvesting sharks is prohibited) can also             to swim, and they are also subjected to
                                                      CITES Appendix II in 2014,                              be found in the Eastern Tropical Pacific              the weight of whatever tonnage is on top
                                                      approximately 1,263 kg (2,784 lbs) of                   Seascape (which encompasses around                    of them, the sharks likely experience
                                                      oceanic whitetip fins have been                         two million km2 and includes the                      high levels of stress that can lead to
                                                      confiscated upon entry into Hong Kong                   Galapagos, Cocos, and Malpelo Islands),               mortality even if they are released alive.
                                                      because the country of origin did not                   in waters off the Maldives, Mauritania,               In addition, rough handling techniques
                                                      include the required CITES permits and                  Palau, French Polynesia, New Caledonia                utilized after sharks are brought onboard
                                                      paperwork. Since 2014, confiscated                      and Raja Ampat, Indonesia. However, it                can also increase mortality. Thus, the
                                                      oceanic whitetip fin shipments included                 should be noted that sharks can still be              ERA team concluded, and we agree, that
                                                      940.46 kg from Colombia, 10.96 kg from                  caught as bycatch in these areas and                  the retention prohibition enacted for
                                                      the Seychelles, and 272.49 kg from the                  enforcement is likely difficult; thus,                oceanic whitetip sharks in the eastern
                                                      United Arab Emirates (AFCD,                             their efficacy for reducing bycatch-                  Pacific, particularly for the tropical tuna
                                                      Unpublished data).                                      related mortality of sharks is uncertain.             purse seine fishery, is not likely
                                                         In addition to trade regulations,                       In addition to international regulatory            effective in reducing the threat of
                                                      finning bans have been implemented by                   mechanisms for the conservation of                    overutilization in this region.
                                                      a number of countries, including the                    sharks in general via shark finning and                  In the Western and Central Pacific,
                                                      European Union (EU), as well as by nine                 fishing bans, a number of species-                    the WCPFC also has regulatory
                                                      RFMOs. These finning bans range from                    specific measures have been                           measures for the conservation of sharks
                                                      requiring fins remain attached to the                   implemented for the conservation of                   in general, as well as specific measures
                                                      body, to allowing fishers to remove                     oceanic whitetip sharks in particular.                for the conservation of oceanic whitetip
                                                      shark fins provided that the weight of                  Specifically, the oceanic whitetip is the             sharks. Likely the most influential
                                                      the fins does not exceed 5 percent of the               only shark species that has a no-                     management measure for the
                                                      total weight of shark carcasses landed or               retention measure in every tuna RFMO,                 conservation of oceanic whitetip sharks
                                                      found onboard. In fact, all of the                      which underscores the species’                        in the Western and Central Pacific is
                                                      relevant RFMOS prohibit fins onboard                    conservation status. However, the ERA                 Conservation Management Measure
                                                      that weigh more than 5 percent of the                   team noted that international                         (CMM) 2011–04, which prohibits
                                                      weight of sharks to curb the practice of                regulations specific to oceanic whitetip              WCPFC vessels from retaining onboard,
                                                      shark finning (i.e., the fins-to-carcass                sharks are likely inadequate to mitigate              transshipping, storing on a fishing
                                                      ratio). Although the fins-to-carcass                    threats that will result in further                   vessel, or landing any oceanic whitetip
                                                      weight ratios have the potential to                     population declines throughout the                    shark, in whole or in part, in the
                                                      reduce the practice of finning, these                   species’ global range. Notably, these                 fisheries covered by the Convention.
                                                      regulations do not prohibit the fishing of              measures likely have varying rates of                 However, observations from the longline
                                                      sharks and a number of issues                           implementation and enforcement and                    fishery have shown that CMM 2011–04
                                                      associated with reliance on the 5                       they do not prevent oceanic whitetip                  for the retention prohibition of oceanic
                                                      percent fins-to-carcass weight ratio                    sharks from being caught in the first                 whitetip is not being strictly followed
                                                      requirement have been identified,                       place, nor the subsequent at-vessel and               (or not yet fully implemented), with
                                                      including: the percentage of fins-to-                   post-release mortality that may result                non-negligible proportions of oceanic
                                                      carcass weight varies widely among                      from being captured. Additionally,                    whitetips still being retained or finned.
                                                      species, fin types used in calculation,                 evidence suggests illegal trafficking and             In fact, both in number and
                                                      the type of carcass weight used (whole                  exportation activities of oceanic                     proportionally more oceanic whitetip
                                                      or dressed) and fin cutting techniques;                 whitetip sharks are ongoing.                          sharks were retained in 2013 (the first
                                                      under the fins-to-carcass weight ratio                     In 2011, the IATTC adopted                         year of the CMM) than 2012 in the
                                                      measure, sharks that are not landed with                Resolution C–11–10 for the conservation               longline fishery (Rice et al., 2015). In
                                                      fins attached to the body make it                       of oceanic whitetip sharks, which                     addition, observations from the Western
                                                      difficult to match fins to a carcass (Lack              provides that IATTC Members and                       and Central tropical tuna purse seine
                                                      and Sant 2009). There are also issues                   Cooperating non-Members shall prohibit                fishery suggest similar issues discussed
                                                      with using the ratios for dried vs. fresh               retaining onboard, transshipping,                     previously for the eastern Pacific purse
                                                      fins, which can change the ratio                        landing, storing, selling, or offering for            seine fishery: Even if live release is
                                                      substantially. Further, despite their                   sale any part or whole carcass of oceanic             strictly practiced in purse seine
                                                      existence, laws and regulations are                     whitetip sharks in the IATTC                          fisheries, the number of sharks
                                                      rapidly changing and are not always                     Convention Area. However, this                        surviving is expected to be low.
                                                      effectively enforced by countries and                   measure is not likely adequate to                        In addition to finning controls and
                                                      RFMOs (Biery and Pauly 2012).                           prevent capture and a substantial                     species-specific retention bans, the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                         Numerous RFMOs and countries have                    amount of mortality in the main fishery               WCPFC has also adopted some
                                                      also implemented various regulations                    that catches oceanic whitetip sharks in               conservation measures related to
                                                      regarding shark fishing in general,                     this region (i.e., the tropical tuna purse            fisheries gear to reduce bycatch of
                                                      which are described in detail in the                    seine fishery). Though published                      oceanic whitetip sharks in the first
                                                      Status Review Report (Young et al.,                     mortality rates of the oceanic whitetip               place. For example, CMM 2014–05,
                                                      2016). A number of countries have                       shark in purse seine fisheries are not                which became effective in July 2015,
                                                      enacted complete shark fishing bans                     available, it is likely the species                   requires each national fleet to either ban
                                                      (i.e., bans on retention and possession of              experiences high mortality rates similar              wire leaders or ban shark lines, both of
                                                      sharks and shark products), with the                    to congener C. falciformis during and                 which have potential to reduce shark


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                                                      96322               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      bycatch. However, while it is predicted                 efficacy for reducing fishing pressure on             jurisdiction ended in 2012, and onboard
                                                      that oceanic whitetip shark mortality                   oceanic whitetip sharks in Brazil. Since              observer programs have been cancelled,
                                                      may be reduced by up to 40 percent if                   the implementation of ICCAT                           which renders any further monitoring of
                                                      both measures are used, this CMM                        Recommendation 10–07, Brazil reported                 South Atlantic shark populations
                                                      allows flag-states to choose which                      12 mt of oceanic whitetip from 2013–                  difficult or impossible (Barreto et al.,
                                                      fishing technique they exclude. Using                   2014, which indicates the species is still            2015). Given the foregoing information,
                                                      Monte Carlo simulations, Harley and                     being caught and continues to                         it appears that existing regulatory
                                                      Pilling (2016) determined the following:                experience fisheries-related mortality in             mechanisms in Brazil may not be
                                                      if flag-states choose to exclude the                    this portion of its range. In addition to             adequate to effectively manage the
                                                      technique least used by their vessels,                  ICCAT regulations, sharks in Brazil                   significant threat of fishing pressure and
                                                      the median predicted reduction in                       must be landed with corresponding fins                associated mortality on oceanic whitetip
                                                      fishing-related mortality is only 10                    and a 5 percent fin to carcass weight                 sharks in this region.
                                                      percent for the oceanic whitetip shark.                 ratio is required. In addition, all                      The ERA team also identified several
                                                      If flag-states exclude the technique most               carcasses and fins must be unloaded                   issues with regulations in the Indian
                                                      used by their vessels, this would reduce                and weighed and the weights reported                  Ocean. The IOTC, the main regulatory
                                                      the fishing mortality rate by 30 percent.               to authorities. Pelagic gillnets and                  body for managing tuna and tuna-like
                                                      This compares to a reduction of 40                      trawls are prohibited in waters less than             species, has management measures in
                                                      percent if choice was removed and both                  3 nm (5.6 km) from the coast; however,                place for sharks in general, and also
                                                      techniques are prohibited. Therefore,                   given that the oceanic whitetip is a                  specifically for the oceanic whitetip
                                                      given the high levels of fishing mortality              pelagic species, a gillnet ban within 3               shark. In 2013, the IOTC passed
                                                      experienced by this species, it is                      nm of the coast is not likely going to be             Resolution 13–06 that prohibits the
                                                      unlikely that the options under CMM                     beneficial to the species. Further, it is             retention, transshipment, landing, or
                                                      (2014–05) of either banning shark lines                 generally recognized that these                       storing of any part or whole carcass of
                                                      or wire traces will result in sufficient                regulations are poorly enforced                       oceanic whitetip sharks. However,
                                                      reductions in fishing mortality (Harley                 (Chiaramonte and Vooren 2007). In                     unlike similar regulations implemented
                                                      et al., 2015). Thus, based on the                       December 2014, the Brazilian                          by other RFMOs, the IOTC retention
                                                      foregoing information, the ERA team                     Government’s Chico Mendes Institute                   prohibition of oceanic whitetip shark
                                                      concluded, and we agree, that despite                   for Biodiversity Conservation approved                exempts ‘‘artisanal fisheries operating
                                                      the increasing species-specific                         the National Plan of Action for the                   exclusively in their respective EEZ for
                                                      management measures in this region,                     Conservation of Elasmobranchs of Brazil               the purpose of local consumption.’’
                                                      given the severely depleted state of the                (No 125). However, this plan will not be              However, the definition of artisanal
                                                      oceanic whitetip population and the                     fully implemented until 2019, and it                  vessels in the IOTC encompasses a wide
                                                      significant levels of fishing mortality the             focuses on a list of 12 priority species              array of boats with vastly different
                                                      species experiences in this region,                     that does not include the oceanic                     characteristics. They range from the
                                                      less-than-full implementation will erode                whitetip shark. As noted previously, the              pirogue that fishes close to shore for
                                                      the benefits of any mitigation measures.                oceanic whitetip shark was designated                 subsistence with no motor, no deck and
                                                         In the Atlantic Ocean, ICCAT is the                  as a ‘‘species threatened by                          no holding facilities, to a longliner,
                                                      main regulatory body for the                            overexploitation’’ in 2004 by Brazil’s                gillnetter or purse seiner of less than 24
                                                      conservation and management of tuna                     Ministry of Environment, and listed                   m with an inboard motor, deck,
                                                      and tuna-like species. In 2010, ICCAT                   under Annex II of Brazil’s Normative                  communications, fish holding facilities,
                                                      developed Recommendation 10–07,                         Ruling No. 5 of May 21, 2004. In 2014,                and in some cases chilling or freezing
                                                      which specifically prohibits the                        Brazil finalized its national assessment              capabilities. This latter vessel could
                                                      retention, transshipping, landing,                      regarding the extinction risk of Brazilian            potentially conduct fishing operations
                                                      storing, selling, or offering for sale any              fauna, and listed the oceanic whitetip                offshore, including outside its EEZ
                                                      part or whole carcass of oceanic                        shark as ‘‘Vulnerable’’ under Brazil’s                (Moreno and Herrera 2013). For
                                                      whitetip sharks in any fishery; however,                National Official List of Endangered                  example, in 2014 and 2015 the Islamic
                                                      like other previously described                         Species of Fauna—Fish and Aquatic                     Republic of Iran and Sri Lanka reported
                                                      retention bans, the retention ban                       Invertebrate (ICMBio 2014). Species                   239 mt of oceanic whitetip sharks
                                                      implemented by ICCAT does not                           listed as ‘‘Vulnerable’’ enjoy full                   caught by gillnets that fall under the
                                                      necessarily prevent all fisheries-                      protection, including, among other                    definition of ‘‘artisanal fisheries.’’
                                                      associated mortality. Although oceanic                  measures, the prohibition of capture,                 Additionally, while some no-retention
                                                      whitetip sharks have a relatively higher                transport, storage, custody, handling,                measures ban the ‘‘selling or offering for
                                                      at-vessel survivorship rate than other                  processing and marketing. The capture,                sale’’ of any products from the specified
                                                      pelagic sharks in the Atlantic, some will               transport, storage, and handling of                   shark species, the IOTC oceanic
                                                      still likely die as a result of being                   specimens of the species shall only be                whitetip shark measure does not (Clarke
                                                      caught. As previously discussed in the                  allowed for research purposes or for the              2013). Further, this measure is not
                                                      Overutilization for Commercial,                         conservation of the species, with the                 binding on India, which is one of the
                                                      Recreational, Scientific, or Educational                permission of the Instituto Chico                     main oceanic whitetip shark catching
                                                      Purposes section of this proposed rule,                 Mendes. However, whether these                        countries identified by the IOTC in the
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      Brazil is one of the top 26 shark-                      regulations are adequately implemented                Indian Ocean. Finally, IOTC Resolution
                                                      catching countries in the world and the                 and enforced is unclear. In fact, there is            13–06 was passed as an interim pilot
                                                      largest oceanic whitetip catching                       strong opposition from the fishing                    measure; therefore, it is highly uncertain
                                                      country in the Atlantic Ocean,                          industry and some ordinances                          as to whether this measure will be
                                                      comprising 89 percent of the total                      guaranteeing protection to endangered                 ongoing into the foreseeable future. As
                                                      oceanic whitetip catch reported to                      species in the country have recently                  a result, it appears that the retention ban
                                                      ICCAT from 1992–2014. Thus, the                         been canceled (Di Dario et al., 2014).                of oceanic whitetip in the Indian Ocean
                                                      following text focuses on existing                      Additionally, systematic data collection              is limited in scope relative to other
                                                      regulatory mechanisms and their                         from fleets fishing over Brazilian                    RFMO no-retention measures, and only


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                         96323

                                                      partially protective depending on                       whitetip shark fins in several markets                may be effective for reducing the threat
                                                      whether the measure is adequately                       throughout its range, as well as several              of overutilization to some degree. For
                                                      implemented and enforced. For                           recent incidents of illegal finning and               example, as noted in the U.S. Domestic
                                                      example, in Indonesia, which is the                     trafficking of oceanic whitetip fins                  Regulatory Mechanisms section, in the
                                                      largest shark fishing nation in the world,              despite national and international                    U.S. Northwest Atlantic and Pacific
                                                      oceanic whitetip sharks are protected in                regulations. For example, in February                 Island States and Territories oceanic
                                                      order to comply with IOTC Resolution                    2013, oceanic whitetip fins were found                whitetip sharks are managed under
                                                      13–06. However, evidence suggests that                  in a large seizure of fins from a                     comprehensive management plans and
                                                      this Resolution may not be strictly                     Taiwanese vessel illegally fishing in the             regulations with trip limits, quotas,
                                                      adhered to. For instance, in a genetic                  Marshall Islands. In 2014, illegal                    logbook and protected species
                                                      barcoding study of shark fin samples                    oceanic whitetip shark fins were                      requirements, and other various fishing
                                                      throughout traditional fish markets in                  discovered in a random sample                         restrictions. In the Northwest Atlantic,
                                                      Indonesia from mid-2012 to mid-2014,                    inspection of three 40 kg sacks slated for            oceanic whitetip sharks are managed
                                                      oceanic whitetip shark was identified as                export from Costa Rica to Hong Kong                   under the pelagic species complex of
                                                      present (Sembiring et al., 2015) despite                (Tico Times 2014). Additionally, and as               the Atlantic HMS FMP, with
                                                      being prohibited in 2013. In addition,                  previously noted, Indonesian authorities              commercial quotas imposed that restrict
                                                      authorities confiscated around 3,000                    seized 3,000 shark fins belonging to                  the overall level of oceanic whitetip
                                                      oceanic whitetip shark fins from sharks                 oceanic whitetip sharks that were                     sharks taken in this part of its range.
                                                      caught in waters near Java Island as                    reportedly caught in waters around Java               Pelagic longline gear is heavily managed
                                                      recent as October 2015 (South China                     Island in October 2015. The fins, which               and strictly monitored. The use of
                                                      Morning Post 2015). Thus, while it                      were about to be flown to Hong Kong,                  pelagic longline gear (targeting
                                                      generally appears that the IOTC has                     were seized at the international airport              swordfish, tuna and/or shark) also
                                                      increased its number of management                      that serves the capital Jakarta. This haul            requires specific permits, with all
                                                      measures for sharks, including the                      was worth an estimated U.S. $72,000 in                required permits administered under a
                                                      oceanic whitetip, these regulations are                 Indonesia, but would reportedly fetch                 limited access program. Presently, no
                                                      likely inadequate to prevent further                    several times that amount in Hong Kong                new permits are being issued; thus,
                                                      population declines of the oceanic                      (South China Morning Post 2015).                      persons wishing to enter the fishery may
                                                      whitetip shark in this region as a result               Therefore, it is clear that the oceanic               only obtain these permits by transferring
                                                      of overutilization.                                     whitetip shark is subject to illegal                  the permit from a permit holder who is
                                                         It is clear that many countries and                  fishing and trafficking, particularly for             leaving the fishery, and transferees are
                                                      RFMOs have implemented shark finning                    its valuable fins. Given the recent                   currently subject to vessel upgrading
                                                      bans or have prohibited the sale or trade               downturn in the shark fin trade (Dent &               restrictions. These national regulations,
                                                      of shark fins or products, and have even                Clarke, 2015; Eriksson & Clarke 2015),                as detailed in the 2006 Consolidated
                                                      prohibited the retention of oceanic                     the threat of this IUU fishing for the sole           HMS FMP and described in this Status
                                                      whitetip sharks in their respective                     purpose of shark fins may not be as                   Review Report, combined with ICCAT’s
                                                      fisheries, with declining trends in                     significant into the future. However,                 Recommendation 10–07 on the
                                                      finning and catches of oceanic whitetip                 based on the best available information               retention prohibition of oceanic
                                                      sharks evident in some locations as a                   on the species’ declining population                  whitetip shark, have likely led to the
                                                      result of these regulations (e.g., Fiji,                trends throughout its range, as well as               recent stabilization of the Northwest
                                                      Australia and the United States; see                    current utilization levels, the present               Atlantic population. In Hawaii, finning
                                                      Young et al., 2016 for more details). It                mortality rates associated with illegal               and no-retention regulations have
                                                      also evident that the international trade               fishing and its impacts on oceanic                    resulted in a significant decline in the
                                                      in shark fins may be gradually slowing.                 whitetip shark populations may be                     number of oceanic whitetip sharks
                                                      In fact, as described previously, the                   contributing to the overutilization of the            finned and an increase in the number of
                                                      trade in shark fins through China, Hong                 species. Therefore, based on the                      sharks released alive. Thus, these U.S.
                                                      Kong SAR, which has served as an                        foregoing information, the ERA team                   conservation and management measures
                                                      indicator of the global trade for many                  concluded that despite national and                   in and of themselves are not inadequate
                                                      years, fell by 22 percent in 2012.                      international regulations to protect the              such that they contribute to the
                                                      Additionally, current indications are                   oceanic whitetip, illegal finning and                 extinction risk of the oceanic whitetip
                                                      that the shark fin trade through Hong                   exportation activities are ongoing. As                shark by increasing demographic risks
                                                      Kong SAR and China will continue to                     such, and based on the best available                 (e.g., further abundance declines) or the
                                                      contract (Dent & Clarke 2015). However,                 information, existing regulatory                      threat of overutilization (e.g.,
                                                      although the overall situation regarding                mechanisms to control for                             unsustainable catch rates) currently and
                                                      the shark fin trade appears to be                       overutilization by the shark fin trade are            in the foreseeable future. However, the
                                                      improving due to current regulations                    likely inadequate to significantly reduce             oceanic whitetip shark is highly
                                                      (e.g., increasing number of finning bans)               this threat to the oceanic whitetip shark             migratory and often moves beyond U.S.
                                                      and trends (e.g., waning demand for                     at this time.                                         jurisdiction. For example, in just one
                                                      shark fins), and it may not be as severe                   Overall, and based on the above                    tagging study conducted in the
                                                      a threat to some species of sharks                      review of regulatory measures (in                     Northwest Atlantic, five tagged oceanic
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      compared to others, evidence suggests                   addition to the regulations described in              whitetip sharks made transboundary
                                                      that oceanic whitetip fins are                          Young et al., 2016), the ERA team                     movements, spending time in waters
                                                      considered to be preferred or ‘‘first                   concluded, and we agree, that existing                managed by different countries (United
                                                      choice’’ in the Hong Kong market                        regulatory mechanisms to control for                  States, Cuba, and several of the
                                                      (Vannuccini 1999; E-CoP16Prop.42                        overutilization are largely inadequate to             windward Caribbean islands) or the
                                                      2013) and the high demand for oceanic                   significantly reduce this global threat to            high seas that are managed by
                                                      whitetip fins is ongoing. This is                       the oceanic whitetip shark at this time.              international bodies (Howey-Jordan et
                                                      evidenced by recent genetic studies that                The ERA team acknowledged that in                     al. 2013). Additionally, the ERA team
                                                      confirm the presence of oceanic                         some locations, regulatory measures                   emphasized that regulatory mechanisms


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                                                      96324               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      to control for overutilization of the                   exposure to industrial fisheries,                     full implementation and enforcement.
                                                      species are largely inadequate                          including pelagic longline and purse                  The ERA team noted that proper
                                                      throughout the rest of the species’ global              seine fisheries operating within the                  implementation and enforcement of
                                                      range. Therefore, based on the best                     species’ core tropical habitat throughout             these regulations would likely result in
                                                      available information, and given the                    its global range. In addition to declines             a reduction in overall mortality of the
                                                      significant global abundance declines of                in oceanic whitetip catches throughout                species over time. However, the best
                                                      the oceanic whitetip shark as a result of               its range, there is also evidence of                  available information suggests that this
                                                      overutilization, the inadequacy of                      declining average size over time in some              may not currently be the case. Given the
                                                      existing regulatory mechanisms is likely                areas, which is particularly concerning               species’ depleted state throughout its
                                                      a threat contributing to the species’ risk              given evidence that litter size is                    range, the ERA team agreed that less
                                                      of extinction throughout its range.                     potentially correlated with maternal                  than full implementation and
                                                      Overall Risk Summary                                    length. With such extensive declines in               enforcement of current regulations is
                                                                                                              the species’ global abundance and the                 likely undermining any conservation
                                                         Guided by the results and discussions                ongoing threat of overutilization, the
                                                      from the demographic risk analysis and                                                                        benefit to the species.
                                                                                                              species’ slow growth and relatively low
                                                      threats assessment, the ERA team                        fecundity may limit its ability for                      Based on all of the foregoing
                                                      members used their informed                             compensation. Related to this, the low                information, which represents the best
                                                      professional judgment to make an                        genetic diversity of oceanic whitetip is              scientific and commercial data available
                                                      overall extinction risk determination for               also cause for concern and a viable risk              regarding current demographic risks and
                                                      the oceanic whitetip shark now and in                   over the foreseeable future for this                  threats to the species, the ERA team
                                                      the foreseeable future. The ERA team                    species. This is particularly concerning              concluded that the oceanic whitetip
                                                      concluded, and we agree, that the                       since it is possible (though uncertain)               shark currently has a moderate risk of
                                                      oceanic whitetip shark currently has a                  that a reduction in genetic diversity                 extinction throughout its range. We
                                                      ‘‘moderate’’ risk of extinction globally.               following the large reduction in                      concluded that the species does not
                                                      The ERA team was fairly confident in                    population size due to overutilization                currently have a high risk of extinction
                                                      determining the overall level of                        has not yet manifested in the species.                because of the following: The species
                                                      extinction risk of the oceanic whitetip                 Loss of genetic diversity can lead to                 has a significantly broad distribution
                                                      shark, placing more than half of their                  reduced fitness and a limited ability to              and does not seem to have been
                                                      likelihood points in the ‘‘moderate risk’’              adapt to a rapidly changing                           extirpated in any region, even in areas
                                                      category. To express some uncertainty,
                                                                                                              environment, thus increasing the                      where there is heavy harvest bycatch
                                                      particularly regarding the lack of robust
                                                                                                              species’ overall risk of extinction.                  and utilization of the species’ high-
                                                      abundance trends and catch data for
                                                      populations in certain areas (e.g., South                  Finally, the species’ extensive                    value fins; there appears to be a
                                                      Atlantic and Indian Ocean), as well as                  distribution, ranging across entire                   potential for relative stability in
                                                      potential stabilizing trends observed in                oceans and across multiple international              population sizes on the order of 5–10
                                                      two areas (e.g., Northwest Atlantic and                 boundaries complicates management of                  years at the post-decline depressed
                                                      Hawaii), the team placed some of their                  the species. The ERA team agreed that                 state, as evidenced by the potential
                                                      likelihood points in the ‘‘low risk’’ and               implementation and enforcement of                     stabilization of two populations (e.g.,
                                                      ‘‘high risk’’ categories as well.                       management measures that could                        NW Atlantic and Hawaii) at a
                                                      Likelihood points attributed to the                     reduce the threat of overutilization to               diminished abundance, which suggests
                                                      overall level of extinction risk categories             the species are likely highly variable                that this species is potentially capable of
                                                      were as follows: Low Risk (20/60),                      and/or lacking altogether across the                  persisting at a low population size; and
                                                      Moderate Risk (34/60), High Risk (6/60).                species’ range. The ERA team                          the overall reduction of the fin trade as
                                                      The ERA team reiterated that the once                   acknowledged a significant increase in                well as increasing management
                                                      abundant and ubiquitous oceanic                         species-specific management measures                  regulations will likely reduce the threat
                                                      whitetip shark has likely experienced                   to control for overutilization of oceanic             of overutilization to some extent, and
                                                      significant historical population                       whitetip shark across its range;                      thus reduce the species’ overall risk of
                                                      declines throughout its global range,                   however, the ERA team also noted that                 extinction. However, given the species’
                                                      with multiple data sources and                          most of these regulations, particularly               significant historical and ongoing
                                                      analyses, including a stock assessment                  the retention prohibitions enacted by all
                                                                                                                                                                    abundance declines of varying
                                                      and trends in relative abundance,                       relevant RFMOs throughout the range of
                                                                                                                                                                    magnitudes in all three ocean basins,
                                                      suggesting declines greater than 70–80                  the species, are too new to truly
                                                                                                                                                                    slow growth, low fecundity, and low
                                                      percent in most areas. The ERA team                     determine their efficacy in reducing
                                                                                                              mortality of oceanic whitetip shark.                  genetic diversity, combined with
                                                      concluded that declining abundance
                                                                                                              Despite this limitation, and with the                 ongoing threats of overutilization and
                                                      trends of varying magnitudes are likely
                                                                                                              exception of the Northwest Atlantic and               largely inadequate regulatory
                                                      ongoing in all three ocean basins.
                                                         In terms of threats to the species, the              Pacific Island States and Territories, the            mechanisms, the ERA team concluded
                                                      ERA team noted that the most                            ERA team was not confident in the                     that the oceanic whitetip shark
                                                      significant threat to the continued                     adequacy of these regulations to reduce               currently has a moderate risk of
                                                      existence of the oceanic whitetip shark                 the threat of overutilization and prevent             extinction throughout its global range.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      in the foreseeable future is ongoing and                further abundance declines in the                     In other words, due to significant and
                                                      significantly high rates of fishing                     foreseeable future. First, the ERA team               ongoing threats of overutilization and
                                                      mortality driven by demands of the                      discussed the fact that retention                     largely inadequate regulatory
                                                      international trade in shark fins and                   prohibitions do not prevent at-vessel                 mechanisms, current trends in the
                                                      meat, as well as impacts related to                     and post-release mortality, which is                  species’ abundance, productivity and
                                                      incidental bycatch and IUU fishing. The                 likely high in some fisheries. In                     genetic diversity place the species on a
                                                      ERA team emphasized that the oceanic                    addition, the biggest concern to the ERA              trajectory towards a high risk of
                                                      whitetip shark’s vertical and horizontal                team with regard to these regulatory                  extinction in the foreseeable future of
                                                      distribution significantly increases its                mechanisms going forward is the lack of               ∼30 years.


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                           96325

                                                      Conservation Efforts                                    al. (2014) reported the following                     sharks by using genetic techniques, as
                                                         Section 4(b)(1)(A) of the ESA requires               regarding the declining demand for                    well as migration patterns of this
                                                      the Secretary, when making a listing                    shark fins: An 82 percent decline in                  species in the western Atlantic with the
                                                      determination for a species, to take into               sales reported by shark fin vendors in                aid of satellite tracking technologies. All
                                                      account those efforts, if any, being made               Guangzhou, China and a decrease in                    of these conservation efforts and non-
                                                      by any State or foreign nation to protect               prices (47 percent retail and 57 percent              regulatory mechanisms are beneficial to
                                                      the species. In judging the efficacy of                 wholesale) over the past 2 years; 85                  the persistence of the oceanic whitetip
                                                      protective efforts, we rely on the                      percent of Chinese consumers surveyed                 shark. The implementation of many of
                                                      Services’ joint ‘‘Policy for Evaluation of              online said they gave up shark fin soup               these efforts, especially the shark
                                                      Conservation Efforts When Making                        within the past 3 years, and two-thirds               research programs, will help to fill
                                                      Listing Decisions’’ (‘‘PECE;’’ 68 FR                    of these respondents cited awareness                  current data gaps in oceanic whitetip
                                                      15100; March 28, 2003). The PECE is                     campaigns as a reason for ending their                abundance, genetics, and movement
                                                      designed to guide determinations on                     shark fin consumption; 43 percent of                  patterns, which can ultimately help
                                                      whether any conservation efforts that                   consumers responded that much of the                  inform other conservation and
                                                      have been recently adopted or                           shark fin in the market is fake; 24                   management measures. However, it is
                                                      implemented, but not yet proven to be                   airlines, 3 shipping lines, and 5 hotel               too soon to tell whether the collective
                                                      successful, will result in recovering the               groups have banned shark fins from                    conservation efforts of both non-
                                                      species to the point at which listing is                their operations; there has been an 80                governmental and academic
                                                      not warranted or contribute to forming                  percent decline from 2007 levels in                   organizations will be effective in
                                                      a basis for listing a species as threatened             prices paid to fishermen in Tanjung                   reducing threats to the species,
                                                      rather than endangered. The purpose of                  Luar and Lombok in Indonesia and a                    particularly those related to
                                                      the PECE is to ensure consistent and                    decline of 19 percent since 2002–2003                 overutilization of the oceanic whitetip
                                                      adequate evaluation of future or recently               in Central Maluku, Southeastern                       shark.
                                                      implemented conservation efforts                        Maluku and East Nusa Tenggara; and of
                                                                                                                                                                    Proposed Determination
                                                      identified in conservation agreements,                  20 Beijing restaurant representatives
                                                      conservation plans, management plans,                   interviewed, 19 reported a significant                   Section 4(b)(1) of the ESA requires
                                                      and similar documents developed by                      decline in shark fin consumption. While               that NMFS make listing determinations
                                                      Federal agencies, State and local                       there seems to be a growing trend to                  based solely on the best scientific and
                                                      governments, Tribal governments,                        prohibit and discourage shark finning                 commercial data available after
                                                      businesses, organizations, and                          domestically and internationally, it is               conducting a review of the status of the
                                                      individuals when making listing                         difficult to predict at this time whether             species and taking into account those
                                                      decisions. The PECE provides direction                  the trend will be effective in reducing               efforts, if any, being made by any state
                                                      for the consideration of such                           the threat of overutilization to the                  or foreign nation, or political
                                                      conservation efforts that have not yet                  oceanic whitetip shark. Nonetheless, we               subdivisions thereof, to protect and
                                                      been implemented, or have been                          conclude that these conservation                      conserve the species. We have
                                                      implemented but have not yet                            measures are not likely to be effective in            independently reviewed the best
                                                      demonstrated effectiveness. The policy                  reducing current threats to oceanic                   available scientific and commercial
                                                      is expected to facilitate the development               whitetip shark to the point that listing              information, including the petition,
                                                      by states and other entities of                         would no longer be warranted.                         public comments submitted on the 90-
                                                      conservation efforts that sufficiently                    There are also many other smaller                   day finding (81 FR 1376; January 12,
                                                      improve a species’ status so as to make                 national and international organizations              2016), the status review report (Young et
                                                      listing the species as threatened or                    with shark-focused goals that include                 al., 2016), and other published and
                                                      endangered unnecessary. The PECE                        advocating the conservation of sharks                 unpublished information, and we have
                                                      established two basic criteria: (1) The                 through education and campaign                        consulted with species experts and
                                                      certainty that the conservation efforts                 programs and conducting shark research                individuals familiar with the oceanic
                                                      will be implemented, and (2) the                        to fill data gaps regarding the status of             whitetip shark. We considered each of
                                                      certainty that the efforts will be                      shark species. Some of these                          the section 4(a)(1) factors to determine
                                                      effective. Satisfaction of the criteria for             organizations include: The Pew                        whether it contributed significantly to
                                                      implementation and effectiveness                        Environment Group, Oceana, Ocean                      the extinction risk of the species on its
                                                      establishes a given protective effort as a              Conservancy, Shark Trust, Bite-Back,                  own. We also considered the
                                                      candidate for consideration, but does                   Shark Project, Pelagic Shark Research                 combination of those factors to
                                                      not mean that an effort will ultimately                 Foundation, Shark Research Institute,                 determine whether they collectively
                                                      change the risk assessment for the                      and Shark Savers. More information on                 contributed significantly to the
                                                      species. Overall, the PECE analysis                     the specifics of these programs and                   extinction risk of the species. Therefore,
                                                      ascertains whether the formalized                       groups can be found on their Web sites.               our determination set forth below is
                                                      conservation effort improves the status                 Important research on oceanic whitetip                based on a synthesis and integration of
                                                      of the species at the time a listing                    sharks is also being conducted in a joint             the foregoing information, factors and
                                                      determination is made.                                  partnership by Nova Southeastern                      considerations, and their effects on the
                                                         The concern regarding the practice of                University and the Guy Harvey Research                status of the species throughout its
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS




                                                      finning and its effect on global shark                  Institute. To facilitate conservation and             range. With respect to the term
                                                      populations has been growing both                       management efforts for oceanic whitetip               ‘‘foreseeable future,’’ we accept the ERA
                                                      domestically and internationally.                       sharks, the Guy Harvey Research                       team’s definition and rationale of
                                                      Notably, the push to stop shark finning                 Institute/Guy Harvey Ocean Foundation                 approximately 30 years as reasonable for
                                                      and curb the trade of shark fins is                     and their project partners are using                  the reliable prediction of threats on the
                                                      evident overseas and even in Asian                      integrative approaches to investigate the             biological status of the species. That
                                                      countries, where the demand for shark                   population connectivity of this species,              rationale for a foreseeable future of
                                                      fin soup is highest. For example, in a                  including ongoing studies of the global               approximately 30 years was provided in
                                                      recent report from WildAid, Whitcraft et                stock structure of oceanic whitetip                   detail previously (refer back to the


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                                                      96326               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      Assessment of Extinction Risk—                          foreseeable future, and thus reduce the               sources, non-point source pollution,
                                                      Methods section of this proposed rule).                 species’ current overall risk of                      contaminated waste and plastic
                                                         We conclude that the oceanic                         extinction; (5) there is no evidence that             disposal, dredging, pile-driving,
                                                      whitetip shark is not presently in danger               disease or predation are contributing to              development of water quality standards,
                                                      of extinction, but is likely to become so               an increased risk of extinction of the                vessel traffic, military activities, and
                                                      in the foreseeable future throughout all                species; and (6) there is no evidence that            fisheries management practices.
                                                      of its range. We summarize the factors                  other natural or manmade factors are
                                                                                                                                                                    Critical Habitat
                                                      supporting this conclusion as follows:                  contributing to an increased risk of
                                                                                                              extinction of the species.                               Critical habitat is defined in section 3
                                                      (1) The best available information
                                                                                                                 As a result of the foregoing findings,             of the ESA (16 U.S.C. 1532(3)) as: (1)
                                                      indicates that the species has
                                                                                                              which are based on the best scientific                The specific areas within the
                                                      experienced significant and ongoing
                                                                                                              and commercial data available, we                     geographical area occupied by a species,
                                                      abundance declines in all three ocean
                                                                                                              conclude that while the oceanic                       at the time it is listed in accordance
                                                      basins (i.e., globally); (2) oceanic
                                                                                                              whitetip shark is not presently in danger             with the ESA, on which are found those
                                                      whitetip sharks possess life history
                                                                                                              of extinction throughout all or a                     physical or biological features (a)
                                                      characteristics that increase their
                                                                                                              significant portion of its range, it is               essential to the conservation of the
                                                      vulnerability to harvest, including slow
                                                                                                              likely to become so within the                        species and (b) that may require special
                                                      growth, relatively late age of maturity,
                                                                                                              foreseeable future. Accordingly, the                  management considerations or
                                                      and low fecundity; (3) the species’ low                                                                       protection; and (2) specific areas outside
                                                                                                              oceanic whitetip shark meets the
                                                      genetic diversity in concert with steep                                                                       the geographical area occupied by a
                                                                                                              definition of a threatened species, and
                                                      global abundance declines and ongoing                                                                         species at the time it is listed upon a
                                                                                                              thus, the oceanic whitetip shark
                                                      threats of overutilization may pose a                                                                         determination that such areas are
                                                                                                              warrants listing as a threatened species
                                                      viable risk to the species in the                                                                             essential for the conservation of the
                                                                                                              at this time.
                                                      foreseeable future; (4) due to the                                                                            species. ‘‘Conservation’’ means the use
                                                      species’ preferred vertical and                         Effects of Listing                                    of all methods and procedures needed
                                                      horizontal habitat, the oceanic whitetip                  Conservation measures provided for                  to bring the species to the point at
                                                      shark is extremely susceptible to                       species listed as endangered or                       which listing under the ESA is no
                                                      incidental capture in both longline and                 threatened under the ESA include the                  longer necessary. Section 4(a)(3)(a) of
                                                      purse seine fisheries throughout its                    development and implementation of                     the ESA (16 U.S.C. 1533(a)(3)(A))
                                                      range, and thus experiences substantial                 recovery plans (16 U.S.C. 1533(f));                   requires that, to the extent prudent and
                                                      levels of fishing mortality from these                  designation of critical habitat, if prudent           determinable, critical habitat be
                                                      fisheries; (5) the oceanic whitetip shark               and determinable (16 U.S.C.                           designated concurrently with the listing
                                                      is a preferred species in the                           1533(a)(3)(A)); a requirement that                    of a species. Designations of critical
                                                      international fin market for its large,                 Federal agencies consult with NMFS                    habitat must be based on the best
                                                      morphologically distinct fins, which                    under section 7 of the ESA to ensure                  scientific data available and must take
                                                      incentivizes the retention and/or finning               their actions do not jeopardize the                   into consideration the economic,
                                                      of the species; and (6) despite the                     species or result in adverse modification             national security, and other relevant
                                                      increasing number of regulations for the                or destruction of designated critical                 impacts of specifying any particular area
                                                      conservation of the species, existing                   habitat (16 U.S.C. 1536); and                         as critical habitat. If we determine that
                                                      regulatory mechanisms are largely                       prohibitions on ‘‘taking’’ (16 U.S.C.                 it is prudent and determinable, we will
                                                      inadequate for addressing the most                      1538). Recognition of the species’ plight             publish a proposed designation of
                                                      important threat of overutilization                     through listing may also promote                      critical habitat for the oceanic whitetip
                                                      throughout a large portion of the                       conservation actions by Federal and                   shark in a separate rule. Public input on
                                                      species’ range. We conclude that the                    state agencies, foreign entities, private             features and areas in U.S. waters that
                                                      species is not presently in danger of                   groups, and individuals.                              may meet the definition of critical
                                                      extinction as a result of the following                                                                       habitat for the oceanic whitetip shark is
                                                      supporting factors: (1) The species is                  Identifying Section 7 Consultation
                                                                                                                                                                    invited.
                                                      broadly distributed over a large                        Requirements
                                                      geographic range, and does not seem to                     Section 7(a)(2) (16 U.S.C. 1536(a)(2))             Protective Regulations Under Section
                                                      have been extirpated in any region, even                of the ESA and NMFS/FWS regulations                   4(d) of the ESA
                                                      in areas where there is heavy harvest                   require Federal agencies to confer with                  We are proposing to list the oceanic
                                                      bycatch and utilization of the species’                 us on actions likely to jeopardize the                whitetip shark, Carcharhinus
                                                      high-value fins; (2) there appears to be                continued existence of species proposed               longimanus, as a threatened species
                                                      a potential for relative stability in                   for listing, or that result in the                    under the ESA. In the case of threatened
                                                      population sizes on the order of 5–10                   destruction or adverse modification of                species, ESA section 4(d) leaves it to the
                                                      years at the post-decline depressed                     proposed critical habitat. If a proposed              Secretary’s discretion whether, and to
                                                      state, as evidenced by the potential                    species is ultimately listed, Federal                 what extent, to extend the section 9(a)
                                                      stabilization of two populations (e.g.,                 agencies must consult on any action                   ‘‘take’’ prohibitions to the species, and
                                                      NW Atlantic and Hawaii) at a                            they authorize, fund, or carry out if                 authorizes us to issue regulations
                                                      diminished abundance, which suggests                    those actions may affect the listed                   necessary and advisable for the
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                                                      that this species is potentially capable of             species or its critical habitat and ensure            conservation of the species. Thus, we
                                                      persisting at a low population size; (3)                that such actions do not jeopardize the               have flexibility under section 4(d) to
                                                      there is no evidence of a range                         species or result in adverse modification             tailor protective regulations based on
                                                      contraction and there is no evidence of                 or destruction of critical habitat should             the needs of and threats to the species.
                                                      habitat loss or destruction; (4) the                    it be designated. Examples of Federal                 The section 4(d) protective regulations
                                                      overall reduction of the fin trade as well              actions that may affect the oceanic                   may prohibit, with respect to threatened
                                                      as increasing management regulations                    whitetip shark include, but are not                   species, some or all of the acts which
                                                      will likely reduce the threat of                        limited to: Alternative energy projects,              section 9(a) of the ESA prohibits with
                                                      overutilization to some extent in the                   discharge of pollution from point                     respect to endangered species. We are


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                                                                          Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules                                          96327

                                                      not proposing such regulations at this                  planned activities within the range of                commercial publications; (2)
                                                      time, but may consider potential                        the oceanic whitetip shark and their                  administrative reports, maps or other
                                                      protective regulations pursuant to                      possible impact on the species; (6)                   graphic materials; (3) information
                                                      section 4(d) for the oceanic whitetip in                recent observations or sampling of the                received from experts; and (4)
                                                      a future rulemaking. In order to inform                 oceanic whitetip shark; and (7) efforts               comments from interested parties.
                                                      our consideration of appropriate                        being made to protect the oceanic                     Comments and data particularly are
                                                      protective regulations for the species,                 whitetip shark.                                       sought concerning: (1) Maps and
                                                      we seek information from the public on                                                                        specific information describing the
                                                                                                              Public Comments Solicited on Critical
                                                      the threats to oceanic whitetip shark                                                                         amount, distribution, and use type (e.g.,
                                                                                                              Habitat
                                                      and possible measures for their                                                                               foraging or migration) by the oceanic
                                                      conservation.                                              We request quantitative evaluations                whitetip shark, as well as any additional
                                                                                                              describing the quality and extent of                  information on occupied and
                                                      Role of Peer Review                                     habitats for the oceanic whitetip shark,              unoccupied habitat areas; (2) the
                                                         The intent of the peer review policy                 as well as information on areas that may              reasons why any habitat should or
                                                      is to ensure that listings are based on the             qualify as critical habitat for the species           should not be determined to be critical
                                                      best scientific and commercial data                     in U.S. waters. Specific areas that                   habitat as provided by sections 3(5)(A)
                                                      available. In December 2004, the Office                 include the physical and biological                   and 4(b)(2) of the ESA; (3) information
                                                      of Management and Budget (OMB)                          features essential to the conservation of             regarding the benefits of designating
                                                      issued a Final Information Quality                      the species, where such features may                  particular areas as critical habitat; (4)
                                                      Bulletin for Peer Review establishing                   require special management                            current or planned activities in the areas
                                                      minimum peer review standards, a                        considerations or protection, should be               that might be proposed for designation
                                                      transparent process for public                          identified. Areas outside the occupied                and their possible impacts; (5) any
                                                      disclosure of peer review planning, and                 geographical area should also be                      foreseeable economic or other potential
                                                      opportunities for public participation.                 identified, if such areas themselves are              impacts resulting from designation, and
                                                      The OMB Bulletin, implemented under                     essential to the conservation of the                  in particular, any impacts on small
                                                      the Information Quality Act (Pub. L.                    species. ESA implementing regulations                 entities; (6) whether specific
                                                      106–554), is intended to enhance the                    at 50 CFR 424.12(g) specify that critical             unoccupied areas may be essential to
                                                      quality and credibility of the Federal                  habitat shall not be designated within                provide additional habitat areas for the
                                                      government’s scientific information, and                foreign countries or in other areas                   conservation of the species; and (7)
                                                      applies to influential or highly                        outside of U.S. jurisdiction. Therefore,
                                                                                                                                                                    potential peer reviewers for a proposed
                                                      influential scientific information                      we request information only on
                                                                                                                                                                    critical habitat designation, including
                                                      disseminated on or after June 16, 2005.                 potential areas of critical habitat within
                                                                                                                                                                    persons with biological and economic
                                                      To satisfy our requirements under the                   waters under U.S. jurisdiction.
                                                                                                                 Section 4(b)(2) of the ESA requires the            expertise relevant to the species, region,
                                                      OMB Bulletin, we obtained independent
                                                                                                              Secretary to consider the ‘‘economic                  and designation of critical habitat. We
                                                      peer review of the status review report.
                                                                                                              impact, impact on national security, and              seek information regarding critical
                                                      Independent specialists were selected
                                                                                                              any other relevant impact’’ of                        habitat for the oceanic whitetip shark as
                                                      from the academic and scientific
                                                                                                              designating a particular area as critical             soon as possible, but no later than
                                                      community for this review. All peer
                                                                                                              habitat. Section 4(b)(2) also authorizes              March 29, 2017.
                                                      reviewer comments were addressed
                                                      prior to dissemination of the final status              the Secretary to exclude from a critical              Public Hearings
                                                      review report and publication of this                   habitat designation those particular
                                                      proposed rule.                                          areas where the Secretary finds that the                 If requested by the public by February
                                                                                                              benefits of exclusion outweigh the                    13, 2017, hearings will be held
                                                      Public Comments Solicited on Listing                    benefits of designation, unless                       regarding the proposal to list the
                                                        To ensure that the final action                       excluding that area will result in                    oceanic whitetip shark as a threatened
                                                      resulting from this proposal will be as                 extinction of the species. For features               species under the ESA. If hearings are
                                                      accurate and effective as possible, we                  and areas potentially qualifying as                   requested, details regarding location(s),
                                                      solicit comments and suggestions from                   critical habitat, we also request                     date(s), and time(s) will be published in
                                                      the public, other governmental agencies,                information describing: (1) Activities or             a subsequent Federal Register notice.
                                                      the scientific community, industry,                     other threats to the essential features or
                                                                                                                                                                    References
                                                      environmental groups, and any other                     activities that could be affected by
                                                      interested parties. Comments are                        designating them as critical habitat; and               A complete list of all references cited
                                                      encouraged on this proposal (See DATES                  (2) the positive and negative economic,               herein is available upon request (see FOR
                                                      and ADDRESSES). Specifically, we are                    national security and other relevant                  FURTHER INFORMATION CONTACT).
                                                      interested in information regarding: (1)                impacts, including benefits to the
                                                      New or updated information regarding                    recovery of the species, likely to result             Classification
                                                      the range, distribution, and abundance                  if these areas are designated as critical             National Environmental Policy Act
                                                      of the oceanic whitetip shark; (2) new or               habitat. We seek information regarding
                                                      updated information regarding the                       the conservation benefits of designating                Section 4(b)(1)(A) of the ESA restricts
                                                      genetics and population structure of the                areas within waters under U.S.                        the information that may be considered
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                                                      oceanic whitetip shark; (3) habitat                     jurisdiction as critical habitat. In                  when assessing species for listing and
                                                      within the range of the oceanic whitetip                keeping with the guidance provided by                 sets the basis upon which listing
                                                      shark that was present in the past, but                 OMB (2000; 2003), we seek information                 determinations must be made. Based on
                                                      may have been lost over time; (4) new                   that would allow the monetization of                  the requirements in section 4(b)(1)(A) of
                                                      or updated biological or other relevant                 these effects to the extent possible, as              the ESA and the opinion in Pacific Legal
                                                      data concerning any threats to the                      well as information on qualitative                    Foundation v. Andrus, 675 F. 2d 825
                                                      oceanic whitetip shark (e.g., post-release              impacts to economic values.                           (6th Cir. 1981), we have concluded that
                                                      mortality rates, finning rates in                          Data reviewed may include, but are                 ESA listing actions are not subject to the
                                                      commercial fisheries, etc.); (5) current or             not limited to: (1) Scientific or                     environmental assessment requirements


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                                                      96328               Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Proposed Rules

                                                      of the National Environmental Policy                    provide continuing and meaningful                         PART 223—THREATENED MARINE
                                                      Act (NEPA).                                             dialogue on issues of mutual state and                    AND ANADROMOUS SPECIES
                                                                                                              Federal interest, this proposed rule will
                                                      Executive Order 12866, Regulatory
                                                                                                              be given to the relevant state agencies in                ■ 1. The authority citation for part 223
                                                      Flexibility Act, and Paperwork
                                                                                                              each state in which the species is                        continues to read as follows:
                                                      Reduction Act
                                                                                                              believed to occur, and those states will
                                                         As noted in the Conference Report on                 be invited to comment on this proposal.                      Authority: 16 U.S.C. 1531–1543; subpart B,
                                                      the 1982 amendments to the ESA,                         We have considered, among other                           § 223.201–202 also issued under 16 U.S.C.
                                                      economic impacts cannot be considered                   things, Federal, state, and local                         1361 et seq.; 16 U.S.C. 5503(d) for
                                                      when assessing the status of a species.                 conservation measures. As we proceed,                     § 223.206(d)(9).
                                                      Therefore, the economic analysis                        we intend to continue engaging in                         ■ 2. In § 223.102, in paragraph (e), add
                                                      requirements of the Regulatory                          informal and formal contacts with the                     a new entry for ‘‘Shark, oceanic
                                                      Flexibility Act are not applicable to the               state, and other affected local or regional               whitetip’’ under Fishes in alphabetical
                                                      listing process.                                        entities, giving careful consideration to
                                                         In addition, this proposed rule is                                                                             order by Common Name to read as
                                                                                                              all written and oral comments received.                   follows:
                                                      exempt from review under Executive
                                                      Order 12866. This proposed rule does                    List of Subjects in 50 CFR Part 223
                                                                                                                                                                        § 223.102 Enumeration of threatened
                                                      not contain a collection-of-information                   Endangered and threatened species,                      marine and anadromous species.
                                                      requirement for the purposes of the                     Exports, Imports, Transportation.
                                                      Paperwork Reduction Act.                                                                                          *       *    *       *      *
                                                                                                                Dated: December 22, 2016.                                   (e) * * *
                                                      Executive Order 13132, Federalism                       Samuel D Rauch, III,
                                                        In accordance with E.O. 13132, we                     Deputy Assistant Administrator for
                                                      determined that this proposed rule does                 Regulatory Programs, National Marine
                                                      not have significant Federalism effects                 Fisheries Service.
                                                      and that a Federalism assessment is not                   For the reasons set out in the
                                                      required. In keeping with the intent of                 preamble, 50 CFR part 223 is proposed
                                                      the Administration and Congress to                      to be amended as follows:

                                                                                                Species 1                                                   Citation(s) for listing      Critical habitat   ESA rules
                                                                                                                                                              determination(s)
                                                            Common name                     Scientific name           Description of listed entity


                                                                *                       *                       *                        *                       *                       *                   *
                                                                FISHES

                                                               *                      *                   *                          *                             *                     *                   *
                                                      Shark, oceanic whitetip ...    Carcharhinus longimanus          Entire species .................   [Insert Federal Register                    NA             NA
                                                                                                                                                            page where the docu-
                                                                                                                                                            ment begins], [Insert
                                                                                                                                                            date of publication
                                                                                                                                                            when published as a
                                                                                                                                                            final rule].

                                                                *                       *                       *                        *                       *                       *                   *
                                                         1 Speciesincludes 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. 2016–31460 Filed 12–28–16; 8:45 am]
                                                      BILLING CODE 3510–22–P
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Document Created: 2016-12-29 01:59:09
Document Modified: 2016-12-29 01:59:09
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule; request for comments.
DatesComments on this proposed rule must be received by March 29, 2017. Public hearing requests must be requested by February 13, 2017.
ContactChelsey Young, NMFS, Office of Protected Resources, (301) 427-8403.
FR Citation81 FR 96304 
RIN Number0648-XE31
CFR AssociatedEndangered and Threatened Species; Exports; Imports and Transportation

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