[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Proposed Rules]
[Pages 96304-96328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

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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