[Federal Register Volume 83, Number 20 (Tuesday, January 30, 2018)]
[Rules and Regulations]
[Pages 4153-4165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01682]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 151110999-7999-03]
RIN 0648-XE314


Endangered and Threatened Wildlife and Plants: Listing the 
Oceanic Whitetip Shark as Threatened Under the Endangered Species Act

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In response to a petition by Defenders of Wildlife, we, NMFS, 
are issuing a final rule to list the oceanic whitetip shark 
(Carcharinus lonigmanus) as threatened under the Endangered Species Act 
(ESA). We have reviewed the status of the oceanic whitetip shark, 
including efforts being made to protect the species, and considered 
public comments submitted on the proposed listing rule as well as new 
information received since publication of the proposed rule. Based on 
all of this information, we have determined that the oceanic whitetip 
shark warrants listing as a threatened species. At this time, we 
conclude that critical habitat is not determinable because data 
sufficient to perform the required analyses are lacking; however, we 
solicit information on habitat features and areas in U.S. waters that 
may meet the definition of critical habitat for the oceanic whitetip 
shark.

DATES: This final rule is effective March 1, 2018.

ADDRESSES: Endangered Species Conservation Division, NMFS Office of 
Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Chelsey Young, NMFS, Office of 
Protected Resources, [email protected], (301) 427-8491.

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 alternatively, 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; and, 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 
may be warranted range wide, and explaining the basis for the finding. 
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. On December 29, 2016, we 
published a proposed rule to list the oceanic whitetip shark as 
threatened (81 FR 96304). We requested public comments

[[Page 4154]]

on the information in the proposed rule and associated status review 
during a 90-day public comment period, which closed on March 29, 2017. 
This final rule provides a discussion of the public comments received 
in response to the proposed rule and our final determination on the 
petition to list the oceanic whitetip shark under the ESA.

Listing Determination Under the ESA

    We are responsible for determining whether species meet the 
definition of 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 the ESA, then whether the 
status of the species qualifies it for listing as either threatened or 
endangered. Section 3 of the ESA defines a ``species'' to include any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife, which 
interbreeds when mature. The oceanic whitetip shark is a formally 
recognized species with no taxonomic uncertainty and thus meets the ESA 
definition of a ``species.''
    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. We interpret an ``endangered 
species'' to be one that is presently in danger of extinction. A 
``threatened species,'' on the other hand, is not presently in danger 
of extinction, but is likely to become so in the foreseeable future 
(that is, at a later time). In other words, the primary statutory 
difference between a threatened species and endangered species is the 
timing of when a species may be in danger of extinction, either 
presently (endangered) or in the foreseeable future (threatened).
    When we consider whether a species might qualify as threatened 
under the ESA, we must consider the meaning of the term ``foreseeable 
future.'' It is appropriate to interpret ``foreseeable future'' as the 
horizon over which predictions about the conservation status of the 
species can be reasonably relied upon. The foreseeable future considers 
the life history of the species, habitat characteristics, availability 
of data, particular threats, ability to predict threats, and the 
reliability to forecast the effects of these threats and future events 
on the status of the species under consideration. Because a species may 
be susceptible to a variety of threats for which different data are 
available regarding the species' response to that threat, or which 
operate across different time scales, the foreseeable future is not 
necessarily reducible to a particular number of years.
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened due to any one or a combination of 
the following five threat 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. We are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
to protect the species.
    In assessing the extinction risk of the oceanic whitetip shark, we 
considered demographic risk factors, such as those developed by 
McElhany et al. (2000), to organize and evaluate the forms of risks. 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our previous 
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 and trends, population 
growth rate or productivity, spatial structure and connectivity, and 
genetic diversity. These viability factors reflect concepts that are 
well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk.
    Scientific conclusions about the overall risk of extinction faced 
by the oceanic whitetip shark under present conditions and in the 
foreseeable future are based on our evaluation of the species' 
demographic risks and section 4(a)(1) threat factors. Our assessment of 
overall extinction risk considered the likelihood and contribution of 
each particular factor, synergies among contributing factors, and the 
cumulative impact of all demographic risks and threats on the species.
    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into consideration those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect the 
species. Therefore, prior to making a listing determination, we also 
assess such protective efforts to determine if they are adequate to 
mitigate the existing threats.

Summary of Comments

    In response to our request for comments on the proposed rule, we 
received a total of 356 comments. Comments were submitted by multiple 
organizations and individual members of the public from a minimum of 19 
countries (Australia, Brazil, Canada, Costa Rica, Ecuador, Egypt, 
England, Guatemala, India, Mexico, Netherlands, New Zealand, Norway, 
Panama, Philippines, South Africa, St. Kitts and Nevis, Sweden, and the 
United States). Most of the comments were supportive of the proposed 
listing of the oceanic whitetip shark as threatened. A few commenters 
argued that the oceanic whitetip should be listed as endangered, and 
some commenters were opposed to the proposed listing of the oceanic 
whitetip shark altogether. We have considered all public comments, and 
we provide responses to all relevant issues raised by comments. We have 
not responded to comments outside the scope of this rulemaking, such as 
comments regarding the potential economic impacts of ESA listings, 
comments suggesting that certain types of activities be covered or 
excluded in any future regulations pursuant to ESA section 4(d) for 
threatened species, or comments suggesting the ESA is not the 
appropriate tool for conserving the oceanic whitetip shark. Summaries 
of comments received regarding the proposed rule and our responses are 
provided below.

Comments on Proposed Listing Determination

    Comment 1: We received numerous comments that support the proposed 
listing of the oceanic whitetip shark as a threatened species under the 
ESA. A large majority of the comments were comprised of general 
statements expressing support for listing the oceanic whitetip shark as 
threatened under the ESA and were not accompanied by substantive 
information or references. Some of the comments were accompanied by 
information that is consistent with, or cited directly from, our 
proposed rule or draft status review report, including the observed 
population declines of the species, its prevalence in the international 
trade of shark fins, and the inadequacy of existing regulations to 
protect the species. Many comments also noted the importance of sharks 
as apex predators and their role in

[[Page 4155]]

maintaining the balance of marine ecosystems. We also received two 
letters of support for our proposed rule to list the oceanic whitetip 
shark under the ESA that were accompanied by thousands of signatures: 
one letter had 3,306 signatures and the other had 24,020 signatures.
    Response: We acknowledge the numerous comments and the considerable 
public interest expressed in support of the conservation of the oceanic 
whitetip shark.
    Comment 2: We received several comments that disagreed with our 
proposed listing determination of threatened for the oceanic whitetip 
shark, and argued that the species should be listed as endangered 
instead for a variety of reasons. One commenter noted that the species 
should be listed as endangered (as opposed to threatened) because the 
species' stock is ``much lower than accounted for in the finding.'' 
Another commenter wrote that global warming, pollution (including 
increasing volumes of trash and plastic) and lack of genetic diversity 
all contribute to an endangered status. This particular commenter also 
disagreed that persistence at diminished abundance levels justifies a 
threatened listing, alleging that we characterized population declines 
of 70-80 percent as ``reasonable.'' Other commenters stated that while 
they agreed with us that the oceanic whitetip shark warrants listing 
under the ESA, they believe the best available scientific and 
commercial information indicates that the species warrants listing as 
endangered as opposed to threatened due to inadequate regulatory 
mechanisms. One commenter provided a substantive discussion of several 
regulatory mechanisms in the Eastern Pacific that were deemed 
inadequate (see Comment 11 below for a detailed summary and response). 
Another commenter asserted that the species is endangered because past 
regulatory efforts to protect sharks have been unsuccessful in the 
United States (e.g., Magnuson-Stevens Fishery Conservation and 
Management Act (MSA), Shark Finning Prohibition Act of 2000, and Shark 
Conservation Act of 2010). Other commenters noted that if the oceanic 
whitetip shark is likely going to be endangered in the foreseeable 
future, we should use a precautionary approach and list it as 
endangered now. Finally, a few commenters noted that listing the 
oceanic whitetip as threatened would not suffice to protect the 
species, and asserted that we can only promulgate take prohibitions for 
species that are listed as endangered.
    Response: We disagree with commenters that the oceanic whitetip 
shark should be listed as endangered. As explained in the proposed 
rule, there are several reasons why the oceanic whitetip shark does not 
meet the definition of an endangered species under the ESA. The oceanic 
whitetip shark is a globally distributed species that has not undergone 
any range contraction or experienced population extirpations in any 
portion of its range despite heavy harvest bycatch. Given that local 
extirpations are often a precursor to extinction events range wide, we 
consider this one indication that the species is not presently in 
danger of extinction. We could also not find any evidence to suggest 
that the threats of global warming or plastic pollution are having 
negative population-level effects on this species and the commenter 
provided no substantive information to support their claim that these 
are operative threats on the species. With regard to the species' low 
genetic diversity, we addressed this threat in detail in the status 
review report and proposed rule. We explained that the Extinction Risk 
Analysis (ERA) team acknowledged the low genetic diversity of the 
species and concluded that it did not, in and of itself, necessarily 
equate to a risk of extinction, but when combined with the low levels 
of abundance and continued exploitation, it could pose a viable risk in 
the foreseeable future. In terms of oceanic whitetip shark abundance, 
we did not receive any information to suggest that the species' 
abundance is lower than what we accounted for in our status review 
report and proposed rule. We also never characterized this species' 
population declines as ``reasonable;'' in fact, the species' historical 
and ongoing declining trends in abundance is one of the major 
demographic risks we identified for the oceanic whitetip that led to 
our proposed determination of threatened for the species. However, 
based on analyses of fisheries observer data conducted by the ERA team 
and presented in the status review report (Young et al., 2017), the 
oceanic whitetip shark is showing stabilizing trends in abundance in a 
couple of areas, including the Northwest Atlantic and Hawaii. We 
concluded that these trends are likely attributable to U.S. fisheries 
management plans and species-specific regulations that have been in 
place for the oceanic whitetip for several years and will likely help 
maintain these trends in the near-term. Additionally, with respect to 
the adequacy of regulatory mechanisms, we concluded that the increase 
in species-specific regulatory mechanisms that prohibit the species in 
numerous fisheries throughout its range should help to reduce 
fisheries-related mortality and slow (but not necessarily halt) 
population declines to some degree, thus providing a temporal buffer in 
terms of the species' extinction risk. As such, we cannot conclude that 
the species is presently in danger of extinction throughout all or a 
significant portion of its range; rather, we maintain that the species 
is likely to become endangered throughout all or a significant portion 
of its range in the foreseeable future, and thus meets the statutory 
definition of a threatened species under the ESA.
    With regard to comments about using a precautionary approach when 
making a listing determination, we are only able to consider the best 
available scientific and commercial information to determine whether 
the species meets the definition of a threatened or endangered species 
under the ESA. Therefore, we are unable to utilize a precautionary 
approach and list a species as endangered when it does not meet the 
statutory definition of an endangered species at the time of listing.
    Finally, commenters are incorrect in their statements that only 
endangered species are afforded protections under the ESA in the form 
of take prohibitions. While it is true that only endangered species 
receive automatic protections under section 9 of the ESA at the time of 
listing, we have the discretion and ability to promulgate 4(d) 
regulations for threatened species to apply any or all of the same 
protections for threatened species, should we find them necessary and 
advisable for the conservation of the species.
    Comment 3: In contrast to Comment 2 above, we also received a 
comment supporting our determination that the oceanic whitetip shark 
does not qualify as an endangered species. The commenter stated that 
the information in the proposed rule clearly does not support a 
conclusion that the species is presently ``on the brink of extinction'' 
and requested that we provide a more detailed explanation in our final 
decision as to why the oceanic whitetip shark does not qualify as an 
endangered species.
    Response: Although we disagree with the interpretation of 
endangered as being equivalent to ``on the brink of extinction,'' we do 
agree with the commenter regarding our determination that the oceanic 
whitetip shark is not presently in danger of extinction throughout its 
range (i.e., endangered).

[[Page 4156]]

We explain our final decision regarding the listing status of the 
oceanic whitetip shark in our response to Comment 2 above and in the 
Final Listing Determination section below.
    Comment 4: One commenter asserted that we did not conduct the 
required analysis to determine that the oceanic whitetip shark is 
currently threatened. The commenter stated that although we provided a 
comprehensive summary of the present status of the oceanic whitetip 
shark, we did not provide an adequate analysis of the expected status 
of the species at the end of the foreseeable future. In other words, 
the commenter contends that we did not properly analyze whether, how, 
when and to what degree the identified threats will affect the species' 
status by the end of the foreseeable future (i.e., 30 years). The 
commenter also asserted that our reliance on the Extinction Risk 
Analysis (ERA) team's assessment is flawed because there were mixed 
results regarding the species' overall extinction risk (e.g., 20 out of 
60 likelihood points were allocated to the ``low risk'' category; 34 
out of 60 likelihood points were allocated to the ``moderate risk'' 
category; and 6 out of 60 likelihood points were allocated to the 
``high risk'' category). The commenter concluded that we did not 
consider the factors relevant to our decision nor make a rational 
connection between the facts and our determination.
    Response: We disagree with the commenter's characterization of our 
extinction risk analysis. With regard to the ERA team's methods and 
conclusions, the available data for the oceanic whitetip shark did not 
allow for a quantitative analysis or model of extinction risk into the 
foreseeable future. Therefore, the ERA team adopted the ``likelihood 
point'' (i.e., FEMAT; Forest Ecosystem Management Assessment Team 1993) 
method for ranking the overall risk of extinction to allow individuals 
to express uncertainty. As explained in the proposed rule, this method 
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. Therefore, while the ERA 
team distributed their likelihood points among all three risk 
categories to express some level of uncertainty, more than half of the 
available likelihood points were allocated to the ``moderate risk'' 
category. The ERA team's scientific conclusions about the overall risk 
of extinction faced by the oceanic whitetip shark is based on an 
evaluation of current demographic risks and identified threats to the 
species, and how these factors will likely impact the trajectory of the 
species into the foreseeable future. As noted in the proposed rule, the 
ERA team determined that 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. In other words, given the likely continuation 
of present-day conditions over the next 30 years or so, the oceanic 
whitetip will more likely than not be at or near a level of abundance, 
productivity, and/or diversity that places its continued persistence in 
question, and may be strongly influenced by stochastic or depensatory 
processes. Therefore, while we were unable to quantify or model the 
expected condition of the species at the end of the foreseeable future, 
we thoroughly evaluated the best available scientific information 
regarding the species' current demographic risks and threats and made 
rational conclusions regarding the species' trajectory over the next 30 
years based on the ERA team's expertise and professional judgement 
regarding the species, its threats, and fisheries management.
Comments on Distinct Population Segments (DPSs)
    We received a few comments suggesting that we identify distinct 
population segments of the oceanic whitetip shark.
    Comment 5: One group of commenters disagreed with the proposed 
global listing of the oceanic whitetip shark as a threatened species. 
The commenters asserted that we failed to reach conclusions regarding 
recent genetic studies discussed in the status review and proposed rule 
(Ruck 2016 and Camargo et al., 2016), which they argue supports the 
identification of at least two DPSs. They provided further discussion 
of theories proposed by Ruck (2016) and Camargo et al. (2016) that 
population structure may reflect thermal barriers and female 
philopatry. As such, they requested that we re-assess the extinction 
risk of the species following a thorough analysis of potential distinct 
population segments (DPSs), specifically the Atlantic and Indo-Pacific 
populations, because the commenters believe that extinction risk 
analyses of these individual DPSs may result in a different listing 
determination. The commenters asserted that ``Even when listing is 
warranted for the global species, NMFS has a duty to analyze potential 
DPSs.'' The commenter also stated that conducting an extinction risk 
analysis at the DPS level (as opposed to the global level) would be 
``more meaningful and scientifically relevant for the oceanic whitetip 
shark's future management, including critical habitat designation and 
recovery planning strategies.''
    Response: We disagree with the commenters regarding our duty to 
analyze potential DPSs after finding the species warrants listing 
range-wide. The petition we received from Defenders of Wildlife clearly 
requested that we list the oceanic whitetip shark as threatened or 
endangered throughout its range. As an alternative to a global listing, 
the petition requested that if we found that there are DPSs of oceanic 
whitetips (specifically Indo-Pacific and Atlantic populations), that 
those DPSs be listed under the ESA. At the 90-day finding stage, we 
determined that the petition presented substantial scientific or 
commercial information indicating listing may be warranted for the 
oceanic whitetip shark range-wide, and therefore, we initiated the 
status review on the global population (81 FR 1376, January 12, 2016). 
We specifically explained in the 90-day finding that if after this 
review we determined that the species did not warrant listing range-
wide, then we would consider whether the populations requested by the 
petition qualify as DPSs and warrant listing. We concluded that the 
oceanic whitetip shark warrants listing as a threatened species 
throughout its range. As such, we have discretion as to whether we 
should divide a species into DPSs, and the commenter is incorrect that 
we are required to commit additional agency resources to conduct an 
analysis and break up the species into the smallest listable entity 
(i.e., DPSs) despite a warranted listing for the species globally. 
Nonetheless, we re-reviewed the two available genetic studies for the 
species (Ruck 2016 and Camargo et al., 2016), particularly in regards 
to discreteness between Atlantic and Indo-Pacific subpopulations. These 
studies differ in genetic markers and sampling locations, but neither 
provides strong evidence for genetic discontinuity. Camargo et al. 
(2016) compared mitochondrial DNA sequences of samples collected in 
eight locations, including the southeast Atlantic and the southwest 
Indian Oceans (i.e., on either side of the southern tip of Africa). 
They concluded there was an absence of genetic structure between the 
East Atlantic and

[[Page 4157]]

Indian Ocean subpopulations. Though the Indian Ocean sample size was 
small (n=9), it included four haplotypes, all of which were also found 
in Atlantic Ocean subpopulations. Camargo et al. (2016) explained that 
this genetic connectivity (i.e., the existence of only one genetic 
stock around the African continent) may be facilitated by the warm 
Agulhas current, which passes under the Cape of Good Hope of South 
Africa and may transport oceanic whitetips from the Indian Ocean to the 
eastern Atlantic. Ruck (2016) compared longer mitochondrial DNA 
sequences and 11 microsatellite DNA loci of samples collected in seven 
locations; however, there were no samples from the southeast Atlantic 
and the southwest Indian Oceans (i.e., the closest sampling locations 
were Brazil and Arabian Sea). Ruck (2016) found weak but statistically 
significant differentiation between West Atlantic and Indo-Pacific 
subpopulations but explained that her study shows genetic evidence for 
contemporary migration between the West Atlantic and Indo-Pacific as a 
result of semi-permeable thermal barriers (i.e., the warm Agulhas 
current). Thus, we compare one study which may lack resolution but 
demonstrates genetic connectivity between the southeast Atlantic and 
the southwest Indian Ocean subpopulations (i.e., across the Agulhas 
current; Camargo et al., 2016) to another that finds weak genetic 
structure and low-level contemporary migration across great distances 
(i.e., the West Atlantic and the northern Indian Ocean; Ruck 2016). We 
conclude that neither study provides unequivocal evidence for genetic 
discontinuity or marked separation (i.e., discreteness) between 
Atlantic and Indo-Pacific Ocean subpopulations. Therefore, the best 
available data do not support the identification of these populations 
as DPSs.
    Overall, given the ambiguous nature of the genetics data, limited 
information regarding the movements of oceanic whitetip sharks, and our 
discretion to identify DPSs, we do not find cause nor are we required 
to break up the global population into DPSs. We also do not agree that 
breaking the global population up into two DPSs would enhance 
conservation of the species under the ESA. For a threatened species, we 
have the discretion to promulgate ESA section 4(d) regulations that can 
be tailored for specific populations and threats should we find it 
necessary and advisable for the conservation of the species. Recovery 
planning can also be tailored for the species in different parts of its 
range.
    Comment 6: Another commenter also urged us to break up the global 
population into DPSs due to differences in regulatory mechanisms and 
management, specifically between the Northwest Atlantic and South 
Atlantic. The commenter argued that while regulatory measures in U.S. 
fisheries operating in the Northwest Atlantic are adequate for the 
oceanic whitetip, regulations for other fishing fleets in the South 
Atlantic (particularly Brazil) are likely inadequate. Therefore, the 
commenter asserted that oceanic whitetip sharks occurring in U.S. 
waters of the Northwest Atlantic should be identified as a DPS, such 
that the Northwest Atlantic population would not qualify as a 
threatened species.
    Response: We disagree with the commenter's interpretation of the 
DPS Policy and its intent. As noted previously, we have discretion with 
regard to listing DPSs in the case of the oceanic whitetip shark, and 
Congress has indicated that the provision to list DPSs should be used 
sparingly. Furthermore, the DPS Policy (61 FR 4722, February 7, 1996) 
identifies two specific criteria that populations must meet in order to 
be listed as a DPS--discreteness and significance; and while management 
differences may be considered in our analysis, management differences 
are not a sufficient basis for delineating populations as DPSs. 
Additionally, in many cases recognition of DPSs can unduly complicate 
species management rather than further the conservation purposes of the 
statute. In this case, we could find no overriding conservation benefit 
to break up the global species into DPSs. Finally, as explained in the 
status review and proposed rule (Young et al., 2017; 81 FR 96304), 
despite the stabilizing trend in its current state, the Northwest 
Atlantic population represents a very small portion of the range of the 
species and is likely persisting at a diminished abundance, 
particularly given the common abundance documented historically for the 
oceanic whitetip in this part of its range. With no clear indication of 
population recovery to date, we still have some concern for the species 
in this part of its range. Therefore, given the species warrants 
listing as threatened throughout its range, we do not find cause to 
break up the population into smaller units.
Comments on Significant Portion of Its Range
    Comment 7: One commenter asserted that the status review and 
proposed rule failed to analyze whether any particular regions of the 
oceanic whitetip shark's range qualify as significant portions of the 
species' range (SPR) under the SPR Policy. The commenter contended that 
had we conducted analyses of potential SPRs, we may have determined 
that oceanic whitetip sharks in a particular ocean basin (e.g., 
Atlantic and Pacific) or regions within an ocean basin (e.g., eastern 
and western Atlantic) face different levels of extinction risk and 
would result in a likely change of listing determination for the 
oceanic whitetip shark.
    Response: We disagree with the commenter's interpretation of the 
SPR Policy (79 FR 37577, July 1, 2014), as well as their statement that 
we failed to analyze whether there are any portions of the oceanic 
whitetip shark's range that would qualify as an SPR, which implies we 
were required to do so. We believe Congress intended that, where the 
best available information allows the Services to determine a status 
for the species rangewide, such listing determination should be given 
conclusive weight. A rangewide determination of status more accurately 
reflects the species' degree of imperilment, and assigning such status 
to the species (rather than potentially assigning a different status 
based on a review of only a portion of the range) best implements the 
statutory distinction between threatened and endangered species. 
Maintaining this fundamental distinction is important for ensuring that 
conservation resources are allocated toward species according to their 
actual level of risk. We also note that Congress placed the ``all'' 
language before the ``significant portion of its range'' phrase in the 
definitions of ``endangered species'' and ``threatened species.'' This 
suggests that Congress intended that an analysis based on consideration 
of the entire range should receive primary focus, and thus that the 
agencies should do a ``significant portion of its range'' analysis as 
an alternative to a rangewide analysis only if necessary. Under this 
reading, we should first consider whether listing is appropriate based 
on a rangewide analysis and proceed to conduct a ``significant portion 
of its range'' analysis if (and only if) a species does not qualify for 
listing as either endangered or threatened according to the ``all'' 
language. We note that this interpretation is also consistent with the 
2014 Final Policy on Interpretation of the Phrase ``Significant Portion 
of its Range'' (79 FR 37578 (July 1, 2014)), which provides that a 
portion of a species' range can be ``significant'' only if the species 
is not currently

[[Page 4158]]

endangered or threatened throughout all of its range. The current SPR 
Policy defines ``significant'' as follows: ``A portion of the range of 
a species is `significant' if the species is not currently endangered 
or threatened throughout all of its range, but the portion's 
contribution to the viability of the species is so important that, 
without the members in that portion, the species would be in danger of 
extinction, or likely to become so in the foreseeable future, 
throughout all of its range'' (79 FR 37578, July 1, 2014). For all of 
these reasons and based on the SPR Policy, because we determined the 
oceanic whitetip shark is currently threatened throughout all of its 
range, we did not conduct an additional SPR analysis to determine if a 
portion of the species' range is significant and whether the species is 
endangered in that portion.
Comments on Threats to the Species
    Comment 8: We received a comment letter that articulated concern 
for an omission of information regarding various NMFS time/area 
seasonal closures for pelagic longline (PLL) gear in the United States 
Exclusive Economic Zone (EEZ) that have been in place for many years 
along the East Coast. The commenter asserted that these closures have 
resulted in a reduction of oceanic whitetip shark bycatch, and this 
information should have been included in the status review report as an 
example of management that has benefited the species.
    Response: We acknowledge that the status review report did not 
specifically discuss the time/area seasonal closures for PLL gear in 
the U.S. EEZ along certain sections of the East Coast. We have since 
incorporated this information into the status review report. However, 
the commenter did not provide any details or data to show how these 
particular regulations have reduced oceanic whitetip shark bycatch in 
particular, and we are not aware of any scientific study or data that 
demonstrates the impacts of these closures on oceanic whitetip shark 
abundance. We agree that it's possible these particular regulations may 
have had a positive effect on reducing bycatch of oceanic whitetip 
shark in the Northwest Atlantic PLL fishery, particularly given the 
stabilizing trend shown by the ERA team's analysis of observer data 
from the fishery (which cover the aforementioned time/area seasonal 
closures), but there's no way to confirm this assertion based on the 
available data and information. Overall, as we explained in the status 
review report and proposed rule, we do agree that regulatory mechanisms 
in the Northwest Atlantic have likely improved the status of the 
oceanic whitetip shark in this portion of its range; however, the 
incorporation of this new information does not alter our overall 
assessment of the species' extinction risk throughout its global range.
    Comment 9: We received a comment letter from the Blue Water 
Fishermen's Association that disagreed with our conclusion that 
inadequate regulatory mechanisms are contributing to an increased risk 
of extinction for the species, and thus, our decision to list the 
species as threatened. The substance of the comment focused on 
regulatory mechanisms implemented for U.S. fishing vessels in the 
Northwest Atlantic, and asserted that these measures adequately reduce 
bycatch-related mortality and protect the species from fishing 
pressure, thus rendering the impacts of U.S. fisheries to the oceanic 
whitetip shark negligible. The commenter also asserted that the 
relevant Regional Fishery Management Organizations (RFMOs) have taken 
adequate measures to protect the species globally by implementing 
measures to prohibit the retention of oceanic whitetip sharks in the 
fisheries over which they have competence. The commenter concluded that 
global regulations of both fisheries and trade (including the 
Convention on International Trade of Endangered Species of Wild Fauna 
and Flora (CITES)) are adequate to protect the oceanic whitetip shark, 
and therefore, the species does not warrant listing under the ESA.
    Response: As discussed previously in the response to Comment 8 
above, we agree that regulatory mechanisms implemented in the Northwest 
Atlantic for the U.S. PLL fishery have likely contributed to the 
stabilization of the oceanic whitetip shark population in this portion 
of its range. We also agree that the no-retention measures implemented 
by the relevant RFMOs will also likely help reduce fisheries-related 
mortality of the species to some degree, when adequately enforced. 
Although there is arguably high compliance with, and adequate 
enforcement of, U.S. fisheries regulations, the oceanic whitetip shark 
is a highly migratory species and thus a shared resource across the 
Atlantic Ocean basin. Several other pelagic longline fleets impact the 
species, many of which have poor compliance with and enforcement of 
fisheries regulations. As such, U.S. regulatory mechanisms have limited 
impact on the global stage in that they only provide protections to 
oceanic whitetip sharks while in U.S. waters. While this does not make 
U.S. regulations inadequate in terms of their purpose of protecting 
oceanic whitetip sharks while in U.S. waters, regulations are likely 
inadequate in other parts of the world to prevent further population 
declines of oceanic whitetip as a result of overutilization. For 
example, we explained in the status review report and proposed rule 
that Brazil, which is the top oceanic whitetip catching country in the 
Atlantic, has poor enforcement of its fisheries regulations to mitigate 
the significant fishing pressure on oceanic whitetip sharks in the 
region. In fact, a recent review paper of legal instruments to manage 
fisheries in Brazil noted a ``complete disrespect for the regulations'' 
and showed that fleets continued to land prohibited or size limited 
species, including the oceanic whitetip shark (Fiedler et al., 2017). 
This means Brazil is not only non-compliant with their own national 
regulations that prohibit the landing and retention of oceanic whitetip 
sharks, but with international management measures as well.
    We also disagree that global regulations for fisheries and trade 
are adequate to control for the threat of overutilization via fishing 
pressure and the fin trade. For example, across the Pacific Ocean 
basin, the species has experienced and continues to experience 
concentrated fishing pressure and associated mortality in its core 
tropical distribution (Rice et al., 2015; Hall and Roman 2013). We also 
noted that implementation and enforcement of regulations to protect the 
species are likely variable across countries. Additionally, the 
retention-prohibition enacted by the Western and Central Pacific 
Fisheries Commission is not being strictly adhered to in longline 
fisheries (Rice et al., 2015) and will not likely decrease mortality 
from purse seine fisheries (Young et al., 2017). Given the depleted 
status of oceanic whitetip sharks across the Pacific Ocean basin, less-
than-full implementation of management measures will likely undermine 
benefits to the species. In terms of the shark fin trade, we discussed 
in the status review and proposed rule several incidents of illegal 
oceanic whitetip fin confiscations from fishing vessels in violation of 
RFMO management measures. Additionally, since the listing of oceanic 
whitetip shark under CITES Appendix II went into effect in 2014 to 
control for trade, 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

[[Page 4159]]

include the required CITES permits. This provides evidence that some 
countries are not adhering to requirements under CITES and oceanic 
whitetip fins continue to be traded without the proper documentation 
certifying that the trade is not negatively affecting the species' 
status. Therefore, we reaffirm our conclusion in the proposed rule (see 
81 FR 96320) regarding the adequacy of U.S. regulatory mechanisms in 
the context of the species' global range.
    Comment 10: We received a similar comment from the Hawaii Longline 
Association (HLA) that emphasized the negligible effect of the Hawaii-
based longline fisheries on the global population of the oceanic 
whitetip shark due to adequate regulatory mechanisms. The commenter 
stated that Hawaii-based longline fisheries do not engage in finning or 
targeting of oceanic whitetip sharks, they incidentally catch very few 
oceanic whitetip sharks relative to foreign fisheries, and almost all 
incidentally caught individuals are released alive. Specifically, the 
commenter pointed out that from 2005-2016, the oceanic whitetip shark 
only comprised 0.16 percent of all species landed in shallow-set and 
deep-set longline fisheries combined. Additionally, the commenter noted 
that in recent years, the percentage of oceanic whitetip sharks 
released alive is high, ranging from 91-96 percent in the shallow-set 
fishery, and from 78-82 percent in the deep-set fishery. They also 
noted that Hawaii-based longline fisheries use a variety of practices 
to reduce potential adverse effects on the species. Finally, the 
commenter warned of potential unintended conservation consequences that 
could result from additional regulations placed on the Hawaii-based 
longline fisheries as a result of a threatened listing of the oceanic 
whitetip shark. The commenters asserted that the extensive regulatory 
system that the Hawaii-based longline fisheries are managed under can 
create a shift in fishing effort to the very species we are trying to 
protect by foreign fisheries that are much less regulated (if at all).
    We received comments from the Western and Central Pacific Regional 
Fishery Management Council (Council) along the same lines as comments 
from HLA, noting that the impact of the Hawaii and American Samoa 
longline fisheries on the oceanic whitetip shark population is likely 
limited relative to overall impacts occurring throughout the rest of 
the species' range. The Council emphasized that the combination of 
state and federal regulations to prohibit shark finning has likely 
resulted in increased amounts of oceanic whitetip sharks released alive 
and asserted that the stabilizing CPUE trend for the Hawaii-based PLL 
fishery might be attributable to the high proportion of oceanic 
whitetip sharks released alive over the last 15 years. Additionally, 
the Council noted that the Hawaii and American Samoa fisheries are 
operating with gear configurations recommended to reduce shark bycatch 
(e.g., use of circle hooks and non-use of shark lines), which further 
reduce the fisheries' impact on the status of the oceanic whitetip 
shark.
    Response: We acknowledge the information provided by HLA and the 
Council regarding the impact of the Hawaii and American Samoa longline 
fisheries on the global oceanic whitetip shark population and largely 
agree with their comments. We explained in the proposed rule that 
although the Hawaii-based PLL fishery currently catches oceanic 
whitetip sharks as bycatch, the majority of individuals are released 
alive in this fishery and the number of individuals kept has shown a 
declining trend. In fact, the comment letter from HLA provided the same 
exact statistics that we discussed in the proposed rule regarding the 
percentage of oceanic whitetip sharks released alive in the shallow-set 
and deep-set fisheries (i.e., 91-96 percent and 78-82 percent, 
respectively). We agree that due to the extensive regulatory measures 
the Hawaii and American Samoa longline fisheries operate under, and the 
large proportion of individuals released alive, these fisheries may be 
less of a threat to the oceanic whitetip shark when compared to foreign 
industrial fisheries. However, while we agree that U.S. fisheries are 
not likely posing a significant threat to the species relative to 
foreign industrial fisheries, levels of implementation and enforcement 
of management measures by other fleets are likely variable across the 
region. As such, and as noted above in a previous comment response, 
given the depleted state of the oceanic whitetip population and 
significant level of fishing mortality the species experiences in this 
part of its range, less-than-full implementation across the Western and 
Central Pacific Ocean (WCPO) will likely undermine the benefits of any 
adequately implemented and enforced management measures in U.S. 
fisheries. Therefore, in addition to the response we gave to Comment 9 
above regarding the adequacy of U.S. regulatory mechanisms in context 
of the species' global range, we reiterate our conclusion from the 
proposed rule regarding the status of oceanic whitetip sharks across 
the Western and Central Pacific region. Given the ongoing impacts to 
the species from significant fishing pressure across the WCPO as a 
whole, (with the majority of effort concentrated in the species' core 
tropical habitat area), including significant declines in CPUE, 
biomass, and size indices, combined with the species' relatively low-
moderate productivity, we conclude that overutilization has been and 
continues to be an ongoing threat contributing to the extinction risk 
of the oceanic whitetip shark across the region (see 81 FR 96315).
    With regard to unintended conservation consequences resulting from 
a threatened listing of the oceanic whitetip shark (i.e., a shift in 
fishing effort for the species by unregulated foreign industrial 
fisheries), we can only consider the best available scientific and 
commercial information regarding the biological status of the species 
when determining whether it meets the definition of threatened or 
endangered under the ESA. Therefore, we are unable to consider 
hypothetical ramifications of protective regulations that the commenter 
believes may result from listing a species. However, it should be noted 
that any decision to extend protective regulations to the species via a 
4(d) regulation that would potentially affect U.S. fisheries will be 
addressed in a separate rule-making process with opportunity for public 
comment and input.
    Comment 11: We received a comment letter from the Panama Aquatic 
Resources Authority within the Panama Ministry of the Environment with 
some new information regarding shark landings in Panama. The commenter 
explained that sharks are not reported at the species level in 
fisheries landing reports; therefore, there is no species-specific 
information regarding the oceanic whitetip shark in catch reports 
collected by the Authority. The commenter also reaffirmed information 
reported in the status review report and proposed rule regarding the 
significant decline in oceanic whitetip shark catches in the eastern 
Pacific purse seine fishery, which led to the Inter-American Tropical 
Tuna Commission's (IATTC) resolution on the conservation of the 
species. The comment then provided landings data for sharks in the Port 
of Vacamontes, and noted that sharks are caught under various types of 
licenses and combinations of licenses, which indicates that shark 
fishing in Panama is a combination of directed and incidental catch by 
both longliners (bottom and surface) and trawls. The commenter also 
included information regarding artisanal and industrial

[[Page 4160]]

fishing fleets, noting that the oceanic whitetip shark likely has the 
most interaction with the longline fishery; however, there is no way to 
corroborate this information with the landings data from the Panama 
Aquatic Resources Authority. The commenter concluded that although 
there are no landings data for oceanic whitetip shark in Panama, this 
does not necessarily mean the species is not caught. Nonetheless, the 
commenter agreed that the available information on the species' status 
in the region suggests that the species warrants protection.
    Response: We appreciate the information provided to us by the 
Panama Aquatic Resources Authority regarding shark fishing and landings 
data from Panamanian waters, and we have incorporated this information 
into our status review report for the oceanic whitetip shark. However, 
the information provided was very limited, and, as the commenter points 
out, species-specific information for oceanic whitetips in Panama is 
lacking. We agree with the commenter that although there is no species-
specific catch or landings data, the oceanic whitetip likely interacts 
with the industrial longline fishery in these waters. Overall, because 
of the depleted status of the species in this region, any additional 
mortality in Panamanian waters due to bycatch in longlines supports our 
determination that overutilization is an ongoing threat to the species.
    Comment 12: We received a report from the organization Fins 
Attached (Arauz 2017) stating that existing management measures and 
regulations in the Eastern Pacific (e.g., Resolutions passed by the 
IATTC and various national laws in Costa Rica) are inadequate for 
oceanic whitetip sharks. The report gave several examples from Costa 
Rica where existing regulations are failing to achieve their 
objectives, including a 5 percent fin-to-body weight ratio, the IATTC's 
Resolution C-11-10 on the Conservation of Oceanic Whitetip Sharks 
(which prohibits Members and Cooperating non-Members (CPCs) from 
retaining or landing any part or whole oceanic white tip carcass in 
fisheries covered by the Antigua Convention), and Costa Rica's ban on 
the use of fish aggregating devices (FADs).
    Response: We appreciate the additional information provided in the 
Fins Attached report and have incorporated this information into our 
status review report for the oceanic whitetip shark. We agree with the 
commenter that existing regulatory mechanisms in the eastern Pacific 
are likely inadequate to halt or reverse population declines of the 
species in this portion of its range. As explained in the status review 
report and proposed rule, the IATTC's Resolution C-11-10 is not likely 
adequate to prevent capture and mortality in the main fishery that 
catches oceanic whitetip sharks in this region (i.e., the tropical tuna 
purse seine fishery). Therefore, because of the species' depleted 
status in the eastern Pacific and the ongoing fishing pressure from 
both purse seine and longline fisheries, we concluded that the 
retention prohibition for oceanic whitetip sharks in the eastern 
Pacific is not likely adequate in terms of effectively mitigating for 
the threat of overutilization in this region. The evidence provided of 
other inadequate regulations in this region further supports our 
conclusion that overutilization of oceanic whitetip shark in the 
Eastern Pacific is an ongoing, unabated threat contributing to the 
species' threatened status.
    Comment 13: We received a comment letter from the Ministry of 
Foreign Affairs of Saint Kitts and Nevis, confirming that oceanic 
whitetip sharks are not targeted in the waters of St. Kitts and Nevis.
    Response: We acknowledge the letter and information provided by the 
government of St. Kitts and Nevis. Although it is useful to know that 
oceanic whitetip sharks are not targeted in the waters of St. Kitts and 
Nevis, this information does not alter our determination regarding the 
species' listing status, as the main issue for the oceanic whitetip 
shark is incidental bycatch-related mortality and not targeted fishing.
    Comment 14: We received a comment letter from an international 
conservation organization that expressed support for the proposed 
threatened listing for the oceanic whitetip shark, and concern for the 
species' low genetic diversity and its potential impact on the species' 
viability in the future. The commenter identified the African cheetah 
and northern elephant seal as examples of species in which severe 
genetic and population bottlenecks, respectively, occurred and led to 
low genetic variation in the seal and physiological impairments (e.g., 
decreased fecundity, high infant mortality and increased sensitivity to 
diseases) in the cheetah. The commenter urged us to continue to monitor 
the oceanic whitetip shark for any change in status, with particular 
concern for potential population or genetic bottlenecks that may result 
in increased inbreeding and subsequent impacts on the species' 
population viability in the future.
    Response: We agree with the commenter that the oceanic whitetip 
shark has relatively low genetic diversity compared to several other 
circumtropical sharks. As we described in the proposed rule, the 
oceanic whitetip sharks' relatively low mitochondrial DNA genetic 
diversity raises potential concern for the future genetic health of the 
species, particularly in concert with steep global declines in 
abundance. Because only 5-7 generations of oceanic whitetip sharks have 
passed since the onset of industrial fishing (and hence, the intense 
exploitation of the species), the low genetic diversity observed in 
Ruck (2016) and Camargo et al. (2016) likely reflect historical levels, 
rather than current levels that would reflect the species' significant 
population declines (Ruck 2016). Thus, we agree with the commenter that 
genetic bottlenecks 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 experience increased 
risk in terms of reduced fitness, evolutionary adaptability, and 
potential extirpations (Camargo et al., 2016). In terms of monitoring, 
once a species is listed under the ESA, we are required to conduct 5-
year reviews to determine whether there has been any change in the 
species' status since the final listing rule went into effect. At that 
time, we can assess whether any new genetic information has become 
available that would indicate whether the species' extinction risk has 
increased due to any population or genetic bottlenecks. Additionally, 
any interested person can petition us to change the species' status, at 
which time we would evaluate any new information submitted as part of 
the petition.

Comments Outside the Scope of the Proposed Listing Determination

    We received numerous comments regarding actions that fall outside 
the scope of this rulemaking. Below are brief explanations to note the 
comments were received and explain why they are not considered relevant 
to the content of the proposed rule.
    Comment 15: We received multiple comments regarding the designation 
of critical habitat for the oceanic whitetip shark in U.S. waters. One 
commenter urged NMFS to propose designated critical habitat for the 
oceanic whitetip shark in waters off the continental U.S., Puerto Rico, 
the U.S. Virgin Islands, Hawaii and the Pacific Trust Territories to 
the maximum extent prudent and determinable.

[[Page 4161]]

    Response: We appreciate the submission of these comments regarding 
critical habitat. NMFS is required to designate critical habitat at the 
time of final rule publication, unless we determine that critical 
habitat is undeterminable at that time. We discuss our determination 
that critical habitat is not currently determinable for the oceanic 
whitetip shark in the Critical Habitat section below.
    Comment 16: We received several comments related to ESA 4(d) rule 
making, which was discussed in the Protective Regulations Under Section 
4(d) of the ESA section of the proposed rule. One commenter requested 
that NMFS not apply the ESA section 9 take prohibitions to licensed 
Hawaii-based commercial longline fishing vessels, as these prohibitions 
would not be necessary and advisable for the conservation of the 
species given that the Hawaii longline fisheries have a negligible 
impact on the oceanic whitetip shark relative to foreign industrialized 
fisheries. In contrast, another commenter requested that NMFS use its 
authority under ESA section 4(d) to extend the section 9(a) take 
prohibitions, particularly because ``take'' by fisheries was identified 
as a main threat to the oceanic whitetip shark in the status review and 
proposed rule, and thus take prohibitions would be necessary and 
advisable for the conservation of the species.
    Response: The comments described above did not provide substantive 
information to help inform the final listing determination for the 
oceanic whitetip shark. For threatened species, the take prohibitions 
under section 9 of the ESA do not automatically apply, as they do for 
endangered species. Additionally, NMFS is not required to issue a 4(d) 
rule for threatened species in conjunction with a final ESA listing. We 
will do so only if we determine it is necessary and advisable for the 
conservation of the species. Issuance of a 4(d) rule would be done in a 
separate rulemaking process that would include specific opportunities 
for public input. As such, the comments above are noted but not 
responded to further in this final rule.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information to change our proposed listing 
determination. We did, however, make several revisions to the status 
review report (Young et al., 2017) to incorporate, as appropriate, 
relevant information that we received in response to our request for 
public comments or identified ourselves. Specifically, we updated the 
status review to include information regarding fisheries data and 
regulations from two countries that border the eastern Pacific (Costa 
Rica and Panama), which largely supports our determination that 
population declines as a result of overutilization and inadequate 
regulations in this region are contributing to the species' threatened 
status globally. We also revised the discussion of U.S. regulatory 
mechanisms in the status review report to include relevant time/area 
and seasonal closures to longline fishing gear along the East Coast of 
the United States. In addition, we identified a couple of new 
publications with relevant information regarding the life history of 
the oceanic whitetip shark from the Western and Central Pacific and 
Indian Oceans (D'Alberto et al., 2017 and Varghese et al., 2016, 
respectively). Specifically, these publications provide new information 
regarding age, growth and maturity for the species, which we 
incorporated into the status review report. We also identified a new 
paper regarding the inadequacy of fisheries regulations in Brazil 
(Fiedler et al., 2017), which further supports our determination that 
overutilization and inadequate regulations are ongoing threats to the 
species in the South Atlantic. Finally, we revised the discussion of 
the essential fish habitat (EFH) designation for the oceanic whitetip 
shark in U.S. waters of the Northwest Atlantic, because NMFS amended 
the designation in this region in 2017. We thoroughly considered the 
additional information we received and gathered; however, the inclusion 
of this new information did not alter the outcome of our risk 
assessment of the species.

Status Review

    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 (the 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 Management 
Division, and four research fishery biologists from NMFS' Southeast, 
Northeast, Southwest, and Pacific Island Fisheries Science Centers. The 
ERA team had 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 
final status review report of the oceanic whitetip shark (Young et al., 
2017) 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 in section 4(a)(1) of the ESA. 
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 the proposed rule and this final rule are based, 
provides the best available scientific and commercial information on 
the oceanic whitetip shark. Much of the information discussed in the 
proposed rule and 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 this final listing 
determination.

ESA Section 4(a)(1) Factors Affecting the Oceanic Whitetip Shark

    As stated previously and as discussed in the proposed rule (81 FR 
96304;

[[Page 4162]]

December 29, 2016), we considered whether any one or a combination of 
the five threat factors specified in section 4(a)(1) of the ESA is 
contributing to the extinction risk of the oceanic whitetip shark. 
Several commenters provided additional information related to threats, 
such as forms of overutilization, including bycatch-related fisheries 
mortality and the fin trade, as well as inadequate regulatory 
mechanisms. The information provided was consistent with or reinforced 
information in the status review report and proposed rule, and thus, 
did not change our conclusions regarding any of the section 4(a)(1) 
factors or their interactions. Therefore, we incorporate and affirm 
herein all information, discussion, and conclusions regarding the 
factors affecting the oceanic whitetip shark from the final status 
review report (Young et al., 2017) and the proposed rule (81 FR 96304; 
December 29, 2016).

Extinction Risk

    As discussed previously, the status review evaluated the 
demographic risks to the oceanic whitetip shark according to four 
categories--abundance and trends, population growth/productivity, 
spatial structure/connectivity, and genetic diversity. As a concluding 
step, after considering all of the available information regarding 
demographic and other threats to the species, we rated the species' 
extinction risk according to a qualitative scale (high, moderate, and 
low risk). Although we did update our status review to incorporate the 
most recent life history information for the oceanic whitetip from two 
additional studies regarding age, growth and age of maturity, none of 
the comments or information we received on the proposed rule changed 
the outcome of our extinction risk evaluation for the species. As such, 
our conclusions regarding extinction risk for the oceanic whitetip 
shark remains the same. Therefore, we incorporate and affirm herein all 
information, discussion, and conclusions on the extinction risk of the 
oceanic whitetip shark in the final status review report (Young et al., 
2017) and proposed rule (81 FR 96304; December 29, 2016).

Protective Efforts

    In addition to regulatory measures (e.g., fishing and finning 
regulations, sanctuary designations, etc.), we considered other efforts 
being made to protect the oceanic whitetip shark. We considered whether 
such protective efforts altered the conclusions of the extinction risk 
analysis for the species; however, none of the information we received 
on the proposed rule affected our conclusions regarding conservation 
efforts to protect the oceanic whitetip. Therefore, we incorporate and 
affirm herein all information, discussion, and conclusions on the 
extinction risk of the oceanic whitetip shark in the final status 
review report (Young et al., 2017) and proposed rule (81 FR 96304; 
December 29, 2016).

Final Listing Determination

    Based on the best available scientific and commercial information, 
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 or a significant portion of its range. While the oceanic 
whitetip shark was historically one of the most abundant and ubiquitous 
shark species in warm tropical and sub-tropical seas around the world 
(Mather and Day 1954, Backus et al., 1956, Strasburg 1958), the best 
available scientific and commercial information suggests the species 
has experienced significant historical and ongoing abundance declines 
in all three ocean basins (i.e., globally) due to overutilization from 
fishing pressure and inadequate regulatory mechanisms to protect the 
species. Estimates of abundance decline range from 50-88 percent across 
the Atlantic Ocean (Northwest Atlantic, Gulf of Mexico, Southwest 
Atlantic; Baum and Meyers 2004, Cort[eacute]s 2007, Driggers et al., 
2011, Barretto et al., 2015, ICMBio 2014, Santana et al., 2004); 80-96 
percent across the Pacific Ocean basin (Hall and Roman 2013, Rice and 
Harley 2012, Rice et al., 2015, Clark et al., 2012, Brodziak et al., 
2013); and variable declines across the Indian Ocean, (IOTC 2015, 
Yokawa and Semba 2012, Ramos-Cartelle et al., 2012, IOTC 2011, Anderson 
et al., 2011). Due to the species' preferred vertical and horizontal 
habitat in the upper-mixed layer of warm, tropical and sub-tropical 
waters, the oceanic whitetip shark is extremely susceptible to 
incidental capture in both longline and purse seine fisheries 
throughout its range (Rice et al., 2015; Cortes et al., 2012, Murua et 
al., 2012), and thus experiences substantial levels of bycatch-related 
fishing mortality from these fisheries. Additionally, the oceanic 
whitetip shark is a preferred species in the international fin market 
for its large, morphologically distinct fins (CITES 2013, Vannuccini 
1999), which incentivizes the retention and/or finning of the species. 
Although there has been some decline in the shark fin trade in recent 
years (Dent and Clarke 2015), we anticipate ongoing threats of fishing 
pressure and related mortality to continue, as the species is still 
regularly caught as bycatch in global fisheries and incidents of 
illegal finning and trafficking of oceanic whitetip fins have occurred 
recently despite CITES protections (Young et al., 2017, AFCD 
unpublished data). The oceanic whitetip shark is rendered more 
vulnerable to fishing pressure due its life history characteristics, 
including relatively slow growth, late age of maturity, and low 
fecundity due to its presumed biennial reproductive cycle, which limit 
the species' capacity to recover. Further, 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. Finally, despite the increasing number of 
regulations for the conservation of the species, which we acknowledge 
may help to slow population declines to some degree, we determined that 
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 oceanic whitetip shark is not presently in 
danger of extinction for a number of reasons. First, 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. Given 
that local extirpations are often a typical precursor to range-wide 
extinction events, we consider this to be an indication (among others) 
that the species is not presently in danger of extinction. There also 
appears to be a potential for relative stability in population sizes 5 
to10 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 reduced population size. 
Although these populations represent very small portions of the 
species' overall range, given that both of these populations are 
managed under strict fishing regulations in U.S. waters, we anticipate 
these stabilizing trends to continue in the near-term. We also conclude 
that the overall reduction of the fin trade and the marked increase in 
species-specific regulatory mechanisms in numerous fisheries throughout 
the species' range should help to reduce fisheries-related mortality 
and slow (but not necessarily halt) population declines to some degree, 
thus providing a temporal buffer in terms of the species' extinction 
risk.

[[Page 4163]]

Given the foregoing reasons, we cannot conclude that the oceanic 
whitetip shark is presently in danger of extinction throughout all or a 
significant portion of its range. Therefore, based on the best 
available scientific and commercial information, as summarized here, in 
our proposed rule (81 FR 64110; September 19, 2016), and in the final 
status review report (Young et al., 2017), and after consideration of 
protective efforts, we find that the oceanic whitetip shark 
(Carcharhinus longimanus) is not presently in danger of extinction 
throughout all or a significant portion of its range, but is likely to 
become so in the foreseeable future (i.e., approximately 30 years). As 
such, we find that this species meets the definition of a threatened 
species under the ESA and list it as such.

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)); and a requirement 
that Federal agencies consult with NMFS under section 7 of the ESA to 
ensure their actions are not likely to jeopardize the species or result 
in adverse modification or destruction of designated critical habitat 
(16 U.S.C. 1536). For endangered species, protections also include 
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is 
defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct (16 
U.S.C. 1532(19)). These prohibitions do not apply to species listed as 
threatened unless protective regulations are issued under section 4(d) 
of the ESA (16 U.S.C. 1533(d)), leaving it to the Secretary's 
discretion whether, and to what extent, to extend the ESA's 
prohibitions to the species. Section 4(d) protective regulations may 
prohibit, with respect to a threatened species, some or all of the acts 
which section 9(a) of the ESA prohibits with respect to endangered 
species. Recognition of the species' imperiled status 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. Once a species is listed as threatened or 
endangered, section 7(a)(2) requires Federal agencies to ensure that 
any actions they fund, authorize, or carry out are not likely to 
jeopardize the continued existence of the species. If critical habitat 
is designated, section 7(a)(2) also requires Federal agencies to ensure 
that they do not fund, authorize, or carry out any actions that are 
likely to destroy or adversely modify that habitat. Our section 7 
regulations require the responsible Federal agency to initiate formal 
consultation if a Federal action may affect a listed species or its 
critical habitat (50 CFR 402.14(a)). Examples of Federal actions that 
may affect the 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(5)) 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 if such areas are determined to be 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 requires that, to the extent practicable and determinable, 
critical habitat be designated concurrently with the listing of a 
species. Designation of critical habitat must be based on the best 
scientific data available and must take into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat.
    In our proposal to list the oceanic whitetip shark, we requested 
information on the identification of specific features and areas in 
U.S. waters that may meet the definition of critical habitat for the 
oceanic whitetip shark (81 FR 96326; December 29, 2016). We have 
reviewed the comments provided and the best available scientific 
information. We conclude that critical habitat is not determinable at 
this time for the following reasons: (1) Sufficient information is not 
currently available to assess the impacts of designation; and (2) 
sufficient information is not currently available regarding the 
physical and biological features essential to conservation. We will 
continue to evaluate potential critical habitat for the oceanic 
whitetip shark, and we intend to consider critical habitat for this 
species in a separate action.

ESA Section 9 Take Prohibitions

    Because we are listing the oceanic whitetip shark as threatened, 
the prohibitions under section 9 of the ESA will not automatically 
apply to this species. As described below, ESA section 4(d) leaves it 
to the Secretary's discretion whether, and to what extent, to extend 
the section 9(a) prohibitions to threatened species, and authorizes us 
to issue regulations that are deemed necessary and advisable to provide 
for the conservation of the species.

Protective Regulations Under Section 4(d) of the ESA

    As stated above, NMFS has flexibility under section 4(d) to tailor 
protective regulations based on the needs of and threats to the 
species. 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 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.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing a 
minimum peer review standard. We solicited peer review comments on the 
draft status review report from five scientists with expertise on 
sharks in general and specific knowledge regarding the oceanic whitetip 
in particular. We received and reviewed comments from these scientists, 
and, prior to publication of the proposed rule, their comments were 
incorporated into the draft status review report (Young et al., 2016), 
which was then made available for public comment. Peer reviewer 
comments on the status review are available at http://www.cio.noaa.gov/services_programs/prplans/ID345.html.

[[Page 4164]]

References

    A complete list of the references used is available upon request 
(see ADDRESSES).

Information Solicited

    We request interested persons to submit relevant information 
related to the identification of critical habitat and essential 
physical or biological features for this species, as well as economic 
or other relevant impacts of designation of critical habitat for the 
oceanic whitetip shark. Details about the types of information we are 
seeking can be found in the proposed rule (81 FR 96327; December 29, 
2016). We solicit information from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party as soon as possible but no later than April 2, 2018 
(see ADDRESSES).

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, 657 F. 2d 829 (6th Cir. 1981), we have concluded 
that ESA listing actions are not subject to the environmental 
assessment requirements of the National Environmental Policy Act 
(NEPA).

Executive Order 12866, Regulatory Flexibility Act

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

Paperwork Reduction Act

    This final 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 final rule 
does not have significant federalism effects and that a federalism 
assessment is not required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Transportation.

    Dated: January 24, 2018.
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 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, amend the table in paragraph (e) by adding an 
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......  Carcharhinuss     Entire species.  83 FR [Insert                  NA           NA
                                longimanus.                        Federal Register
                                                                   page where the
                                                                   document begins],
                                                                   January 30, 2018.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2018-01682 Filed 1-29-18; 8:45 am]
 BILLING CODE 3510-22-P