[Federal Register Volume 89, Number 94 (Tuesday, May 14, 2024)]
[Proposed Rules]
[Pages 41917-41924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10466]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 240508-0132]
RIN 0648-BM49


Endangered and Threatened Wildlife and Plants; Protective 
Regulations for the Oceanic Whitetip Shark (Carcharhinus longimanus)

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

ACTION: Proposed rule; request for comments; notice of availability of 
a draft environmental assessment.

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SUMMARY: We, NMFS, are proposing to issue protective regulations under 
section 4(d) of the Endangered Species Act (ESA) for the conservation 
of the threatened oceanic whitetip shark (Carcharhinus longimanus). The 
proposed regulations would apply all of the prohibitions listed under 
ESA sections 9(a)(1)(A) through 9(a)(1)(G) for the species, with 
limited exceptions for scientific research and law enforcement 
activities that contribute to the conservation of the species. In 
addition, we are announcing the availability of a draft environmental 
assessment (EA) that analyzes the environmental impacts of promulgating 
these regulations. Finally, we solicit comments from the public and all 
interested parties regarding this proposed rule and the draft EA.

DATES: Comments on this proposed rule must be received by July 15, 
2024.

ADDRESSES: A plain language summary of this proposed rule is available 
at https://www.regulations.gov/docket/NOAA-NMFS-2023-0117. You may 
submit comments on the proposed rule, identified by NOAA-NMFS-2023-0117 
by the following method:
     Electronic Submissions: Submit all electronic comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2023-0117 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    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 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name and address), 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).
    The proposed rule and other reference materials regarding this 
determination are available electronically at https://www.fisheries.noaa.gov/species/oceanic-whitetip-shark#conservation-management.

FOR FURTHER INFORMATION CONTACT: Adrienne Lohe, NMFS Office of 
Protected Resources, 301-427-8442.

SUPPLEMENTARY INFORMATION:

Background

    The prohibitions listed under section 9(a)(1) of the ESA 
automatically apply when a species is listed as endangered, but not 
when a species is listed as threatened. In the case of a species listed 
as threatened, the Secretary of Commerce (Secretary) shall issue such 
regulations as deemed necessary and advisable to provide for the 
conservation of the species (16 U.S.C. 1533(d)). The Secretary may by 
regulation prohibit with respect to any threatened species any or all 
acts prohibited under section 9(a)(1). Section 9(a)(1) of the ESA 
prohibits any person subject to the jurisdiction of the United States 
from: (a) importing any such species into, or exporting any such 
species from the United States; (b) taking any such species within the 
United States or the territorial sea of the United States; (c) taking 
any such species upon the high seas; (d) possessing, selling, 
delivering, carrying, transporting, or shipping, by any means 
whatsoever, any such species that was illegally taken; (e) delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce, by any means whatsoever and in the course of commercial 
activity, any such species; (f) selling or offering for sale in 
interstate or foreign commerce any such species; or (g) violating any 
regulation pertaining to such species or to any threatened species of 
fish or wildlife (16 U.S.C. 1538(a)(1)). The ESA defines ``take'' as to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or attempt to engage in any such conduct (16 U.S.C. 1532(19)). 
The term ``harm'' is defined in our regulations as any act which kills 
or injures fish or wildlife. Such an act may include significant 
habitat modification or degradation that results in death or injury of 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, spawning, rearing, migrating, feeding, or 
sheltering (50 CFR 222.102). The term ``harm'' is used in this proposed 
rule as defined in the regulations.
    The final rule to list the oceanic whitetip shark (Carcharhinus 
longimanus) as a threatened species under the ESA was published on 
January 30, 2018, and became effective March 1, 2018 (83 FR 4153). The 
proposed and final rules to list the species as threatened (81 FR 
96304, December 29, 2016; 83 FR 4153, January 30, 2018), the Oceanic 
Whitetip Status Review Report (Young et al. 2017), and the Draft 
Recovery Status Review (NMFS 2023) provide extensive information on the 
status of the oceanic whitetip shark and the threats facing this 
species. We relied heavily on these documents while developing this 
proposed rule, and provide a brief summary of the species' status and 
threats below.
    The oceanic whitetip shark is a highly migratory, pelagic species 
distributed in tropical and subtropical waters globally. The species is 
relatively long-lived, and has low to moderate productivity relative to 
other shark species. Although the oceanic whitetip shark is currently 
thought to consist of a single population, some population structuring 
(i.e., genetic differentiation between population segments) is evident, 
particularly between the Atlantic and Indo-Pacific (Ruck 2016; Camargo 
et al. 2016). Historical fisheries data and observations suggest that 
the species was once among the most common and ubiquitous shark species 
in tropical waters around the world (NMFS 2023). More recently, 
however, numerous lines of evidence from all three major ocean basins 
(Atlantic, Pacific, and Indian Oceans) suggest that the oceanic 
whitetip shark has experienced significant historical declines of 
varying magnitudes over the past several decades, and that these 
declines are likely ongoing (NMFS 2023). Rigby et al. (2019) estimated 
a median global population reduction at 98-100 percent over three 
generation lengths (61.2 years). This is the only global trend estimate 
available for the oceanic whitetip shark. The following threats have 
been identified as contributing to the threatened status of the 
species: incidental bycatch in commercial fisheries (particularly 
pelagic longlines (PLL), purse seines, and gillnets), international 
trade of oceanic whitetip shark fins, and inadequate regulatory 
mechanisms (management) to address these threats. There are several 
other stressors that are of lesser concern but

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that may work synergistically to negatively affect the population 
viability of oceanic whitetip sharks (e.g., effects of climate change, 
pollutants, recreational fisheries).
    In our listing determination for the species we concluded that, 
within the jurisdiction of the United States, 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, were not in and of themselves inadequate such that they 
were contributing to the global extinction risk of the species (81 FR 
96304, December 29, 2016). Further, NMFS has recently added the oceanic 
whitetip shark to the prohibited retention list for all U.S. Atlantic 
shark fisheries (89 FR 278, January 3, 2024). However, retention of 
oceanic whitetip sharks is not prohibited in all gear types or 
fisheries, and other forms of take beyond retention are not prohibited.

Application of Section 9 Prohibitions to the Oceanic Whitetip Shark

    Based on the preceding information, we are proposing to apply all 
of the prohibitions listed under ESA sections 9(a)(1)(A) through (G) to 
the species, with limited exceptions. This will contribute to the 
conservation of the species by ensuring that the United States is not 
impeding the recovery of the species. We are proposing limited 
exceptions to the prohibitions on import, export, and take; these 
limited exceptions are more fully described in the next section.
    Section 9(a)(1)(A) prohibits the import and export of endangered 
species to or from the United States. The international shark fin trade 
was identified as a significant threat to the oceanic whitetip shark in 
both the final listing of the species (83 FR 4153, January 30, 2018) 
and the Draft Recovery Status Review (NMFS 2023). Although the oceanic 
whitetip shark is not generally targeted in fisheries, the high value 
of oceanic whitetip shark fins creates an incentive for opportunistic 
retention and finning of oceanic whitetip sharks when caught, and is 
the main economic driver of mortality of this species in commercial 
fisheries throughout its global range. The United States makes up a 
small proportion of the global shark fin trade (Ferretti et al. 2020), 
and shark finning has been illegal in U.S. waters for many years. 
Additionally, the Shark Fin Sales Elimination Act, enacted as section 
5946 of the National Defense Authorization Act for Fiscal Year 2023 
(117 H.R. 7776, Pub. L. 117-263, Dec. 23, 2022), recently prohibited 
the possessing, acquiring, receiving, transporting, offering for sale, 
selling, or purchasing a shark fin or a product containing a shark fin 
in the United States, with limited exceptions. However, prohibition of 
the import and export of oceanic whitetip sharks to or from the United 
States through this rule, if finalized, would serve to further deter 
illegal trade and transshipment activity within and through the United 
States.
    Section 9(a)(1)(B) of the ESA prohibits the take of endangered 
species within the United States or the territorial seas of the United 
States, and section 9(a)(1)(C) prohibits the take of endangered species 
upon the high seas by any person subject to the jurisdiction of the 
United States. As stated previously, ``take'' under the ESA means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct. Take of oceanic 
whitetip sharks may be intentional or incidental, may occur during the 
course of commercial or recreational activities, and may result in 
direct and indirect impacts to an individual shark. Because much of the 
range of the oceanic whitetip shark occurs outside U.S. jurisdiction, 
it is important that protective regulations also prohibit take on the 
high seas by any person subject to U.S. jurisdiction. Protecting 
oceanic whitetip sharks from take, whether intentional or incidental, 
would help preserve the species' populations occurring in U.S. waters 
as well as on the high seas, and slow the rate of population decline.
    Sections 9(a)(1)(D), (E), and (F) of the ESA prohibit, among other 
things, the possession, sale, and transport of endangered species that 
are taken illegally or that are entered into interstate or foreign 
commerce. The extension of these prohibitions to the oceanic whitetip 
shark would serve as a further deterrent to illegal trade in its fins 
or other parts.
    Lastly, we are proposing to extend the section 9(a)(1)(G) 
prohibition against violating this and any other regulations we 
promulgate pertaining to the oceanic whitetip shark.

Summary of Exceptions to Section 9 Prohibitions

    The ESA allows for specific exceptions to the section 9 
prohibitions through interagency consultations as prescribed by ESA 
section 7 or permits issued pursuant to ESA section 10. If this 
proposed rule becomes final and the section 9 prohibitions are extended 
to the threatened oceanic whitetip shark, the following exceptions 
would also apply.
    Section 7 of the ESA requires all Federal agencies to consult with 
us on actions they fund, authorize, or carry out that may affect 
species listed under the ESA (16 U.S.C. 1536(a)(2)). NMFS consults on a 
range of activities conducted, funded, or authorized by Federal 
agencies, including but not limited to fishery regulations and 
scientific research activities. Incidental take of the oceanic whitetip 
shark that results from federally conducted, funded, or authorized 
activities for which section 7 consultations are completed would not 
constitute violations of section 9 prohibitions against take, provided 
the activities are conducted in accordance with all reasonable and 
prudent measures (RPMs) and terms and conditions contained in any 
biological opinion issued by NMFS.
    Sections 10(a)(1)(A) and (B) of the ESA provide us with the 
authority to grant exceptions to the ESA's prohibitions for certain 
activities. Section 10(a)(1)(A) allows NMFS to permit any action 
otherwise prohibited by section 9 for scientific purposes or to enhance 
the propagation or survival of the affected species. We issue 
scientific research and enhancement permits to Federal and non-Federal 
entities conducting research or conservation activities that involve 
take of a listed species, in exception to any section 9 prohibitions. 
Section 10(a)(1)(B) allows NMFS to issue incidental take permits to 
non-Federal entities performing activities that may incidentally take a 
listed species in the course of an otherwise lawful activity; these 
permits provide an exception to the section 9(a)(1)(B) prohibitions.
    We have decided to propose exceptions to the ESA section 
9(a)(1)(A), (B), and (C) prohibitions for the oceanic whitetip shark, 
to apply in certain circumstances described below. We are proposing 
exceptions to these prohibitions for two classes of activities that 
provide for the conservation of the species. Specifically, and under 
specified conditions described below, we propose to except: (1) 
scientific research activities from the section 9(a)(1)(A), (B), and 
(C) prohibitions; and (2) law enforcement activities from the section 
9(a)(1)(B) take prohibitions. These exceptions are described in detail 
in the following sections.

Exception to Prohibitions for Scientific Research Activities

    Currently, there are many data gaps related to the biology, life 
history, ecology, movement patterns, habitat

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use, and population structure of the oceanic whitetip shark. Scientific 
research to fill these data gaps is critical for improving our 
understanding of the species' conservation status and threats facing 
the species, assessing the effectiveness of current and future 
management measures, measuring recovery progress, and ultimately 
conserving the species. The species' life history parameters and 
population structure may be investigated through the collection and 
analysis of tissue samples (e.g., fin clip, tissue plug, blood) from 
live animals. Determination of life history parameters may also be 
accomplished through the collection and analysis of biological samples 
(e.g., vertebrae, reproductive organs, blood, and other internal 
organs) from animals that previously suffered mortality unrelated to 
the need to obtain biological samples (i.e., sample collection from 
salvaged carcasses, or samples taken by fisheries observers or 
scientists from oceanic whitetip sharks dead at haulback). Reproductive 
information may be gleaned using ultrasonography techniques on live 
female sharks that may or may not be pregnant. Data on movements and 
habitat use may be obtained through application of video cameras/
Crittercams, as well as tagging (e.g., conventional, acoustic, 
satellite, biologgers, physiological), release, and recapture of live 
animals. Some of these research activities require targeted and/or 
incidental capture or handling of individual sharks during fishing 
activities in order to take biological samples, apply various tracking 
tags, and/or conduct other research activities. Therefore, these and 
other types of research activities that will contribute to the species' 
conservation would require conditional exceptions from the take 
prohibitions. We propose an exception from the section 9(a)(1)(B) and 
(C) prohibitions for scientific research activities when the following 
conditions are met: (1) the scientific research activities are carried 
out by or in collaboration with a research institution; state, tribal, 
or federal agency; or other scientific organization in a good faith 
effort to advance the conservation and/or recovery of the species; (2) 
the scientific research activities are intended to involve only non-
lethal take, i.e., no individuals may be intentionally killed for the 
purposes of scientific research under this exception; and (3) the 
scientific research activities are carried out in accordance with all 
other applicable laws and regulations. If these conditions are met, 
scientific research activities resulting in take would not constitute a 
violation of the prohibitions, and an ESA section 10(a)(1)(A) permit 
would not be required.
    We also propose an exception from the section 9(a)(1)(A) 
prohibitions on import and/or export when the following conditions are 
met: (1) the import or export is accompanied by proper permits issued 
under the Convention on International Trade in Endangered Species of 
Wild Fauna and Flora (CITES) indicating that the trade is for the 
purposes of scientific research; and (2) the import or export is 
carried out in accordance with all other applicable laws and 
regulations. If these conditions are met, import and/or export for the 
purposes of scientific research would not constitute a violation of the 
section 9(a)(1)(A) prohibitions, and an ESA section 10(a)(1)(A) permit 
would not be required.

Exception to Prohibitions for Law Enforcement Activities

    There may be instances in which law enforcement officials or 
management authorities, including any employee or designee of NMFS or 
of any other governmental entity that has co-management authority for 
the oceanic whitetip shark, may need to take an oceanic whitetip shark 
when acting in the course of their official duties. We propose that the 
employee or designee, when acting in the course of official duties, be 
authorized to take an oceanic whitetip shark without an ESA section 
10(a)(1)(A) permit if such action is necessary in the following 
circumstances: to aid a sick, injured, entangled, or stranded oceanic 
whitetip shark, to dispose of a dead oceanic whitetip shark, or to 
salvage a dead oceanic whitetip shark (or parts or samples thereof) 
that may be useful for scientific study.

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

    On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service (FWS) 
published a policy (59 FR 34272) that requires us to identify, to the 
extent known at the time a species is listed, those activities that 
would or would not be considered likely to result in a violation of 
section 9 of the ESA. The intent of this policy is to increase public 
awareness of the effect of a listing on proposed and ongoing activities 
within a species' range. Because we did not apply any of the section 9 
prohibitions to the oceanic whitetip shark at the time of listing, we 
will now identify the activities that are likely to result in a 
violation of the proposed prohibitions in this proposed rule. Based on 
the best scientific and commercial data available, we conclude that the 
following categories of activities are those likely to result in a 
violation of the ESA section 9 prohibitions. Whether a violation 
results from a particular activity, however, is entirely dependent upon 
the facts and circumstances of each incident. The mere fact that an 
activity may fall within one of these categories does not mean that the 
specific activity will result in a violation; due to such factors as 
location and scope, specific actions may not result in direct or 
indirect adverse effects on the species. Further, an activity not 
listed here may result in a violation. However, the following types of 
activities are those that are likely to violate the prohibitions in 
section 9 that we propose to extend to the oceanic whitetip shark 
through this action:
    1. Fishing activity that results in take of oceanic whitetip 
sharks, unless authorized by an incidental take statement issued 
through a biological opinion pursuant to section 7 of the ESA or 
permitted through section 10 of the ESA.
    2. Interstate or foreign commerce in oceanic whitetip sharks or 
parts or products thereof.
    3. Import or export of oceanic whitetip sharks, or parts or 
products thereof, unless under an ESA section 10 permit or subject to 
the scientific research activity exception in this proposed rule.
    This non-exhaustive list provides examples of the types of 
activities that are likely to violate this proposed rule, if finalized. 
Identification of these activities is intended to help people identify 
actions with a high risk of violating the ESA, such that they can be 
avoided, and to encourage efforts to recover the oceanic whitetip 
shark. Persons or entities concluding that their activity is likely to 
violate the ESA are encouraged to immediately adjust or terminate that 
activity to avoid violations and to seek authorization under: (a) an 
ESA section 10 incidental take permit; (b) an ESA section 10 research 
and enhancement permit; or (c) an ESA section 7 consultation. The 
public is encouraged to contact us (see FOR FURTHER INFORMATION 
CONTACT) for assistance in determining whether circumstances at a 
particular location, involving these or any other activities, might 
constitute a violation of this proposed rule, if finalized.
    We find that, based on the best available information, the 
following actions will not result in a violation of the section 9 
prohibitions that we

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propose to extend to the species through this action:
    1. Activities that result in incidental take authorized by an 
incidental take statement issued through a biological opinion pursuant 
to section 7 of the ESA or permitted through section 10 of the ESA.
    2. Collection, handling, and possession of oceanic whitetip sharks 
and specimens thereof that are acquired lawfully in accordance with an 
ESA section 10 permit or through one of the exceptions in this proposed 
rule.
    3. Import or export of oceanic whitetip shark, or parts or products 
thereof, under an ESA section 10 permit or through the scientific 
research activity exception in this proposed rule.

Public Comments Solicited

    We are soliciting comments, information, and/or recommendations on 
any aspect of this proposed rule from all concerned parties (see DATES 
and ADDRESSES). We will consider all relevant information, comments, 
and recommendations received before reaching a final decision on ESA 
section 4(d) regulations for the oceanic whitetip shark. We may add or 
remove prohibitions or exceptions on the basis of public comment and in 
light of the biological status, conservation needs, and threats to the 
species.

Public Hearing

    The ESA provides for a public hearing on this proposal, if 
requested. Requests must be filed by the date specified in the DATES 
section above.

Peer Review

    In December 2004, the Office of Management and Budget issued a 
Final Information Quality Bulletin for Peer Review (Peer Review 
Bulletin), establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
Peer Review Bulletin, implemented under the Information Quality Act 
(Pub. L. 106-554), is intended to provide public oversight on the 
quality of agency information, analyses, and regulatory activities. The 
text of the Peer Review Bulletin was published in the Federal Register 
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires 
Federal agencies to subject ``influential'' scientific information to 
peer review prior to public dissemination. Influential scientific 
information is defined as ``information the agency reasonably can 
determine will have or does have a clear and substantial impact on 
important public policies or private sector decisions,'' and the Peer 
Review Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. The Peer Review Bulletin 
establishes stricter standards for the peer review of ``highly 
influential'' scientific assessments, defined as information whose 
``dissemination could have a potential impact of more than $500 million 
in any one year on either the public or private sector or that the 
dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.'' As stated previously, in developing 
this rule, we relied on previous NMFS reviews of this species, and thus 
we do not consider the scientific information underlying the proposed 
protective regulations to constitute newly compiled or disseminated 
influential scientific information requiring peer review per the Peer 
Review Bulletin.

References

    A complete list of the references used in this proposed rule is 
available online (see ADDRESSES) and upon request (see FOR FURTHER 
INFORMATION CONTACT).

Classification

National Environmental Policy Act (NEPA)

    In the case of a species listed as threatened, section 4(d) of the 
ESA directs that the Secretary of Commerce (Secretary) shall issue such 
regulations as the Secretary deems necessary and advisable to provide 
for the conservation of the species. The Secretary may, by regulation, 
prohibit, with respect to any threatened species of fish or wildlife, 
any or all acts prohibited under section 9(a)(1). Accordingly, the 
promulgation of ESA section 4(d) protective regulations is subject to 
the requirements of NEPA, and we have prepared a draft EA analyzing the 
proposed 4(d) regulations and alternatives. We are seeking comment on 
the draft EA, which is available on the Federal eRulemaking Portal 
website (https://www.regulations.gov) or upon request (see DATES and 
ADDRESSES, above).

Executive Order (E.O.) 12866 and 14094--Regulatory Planning and Review

    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866, as amended by E.O. 14094.

Regulatory Flexibility Act

    We prepared an initial regulatory impact analysis (IRFA) in 
accordance with section 603 of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601, et seq.). The IRFA analyzes the impacts to small entities 
that may be affected by the proposed rule. To review the IRFA, see the 
ADDRESSES section above. We welcome comments on this IRFA, which is 
summarized below.
    The IRFA first identified the types and approximate number of small 
entities that would be subject to regulation under the proposed rule. 
It then evaluated the potential for the proposed rule to incrementally 
impact small entities, i.e., result in impacts to small entities beyond 
those that would be incurred due to existing regulations but absent the 
proposed rule. The IRFA anticipates that regulations under the proposed 
rule would apply to thousands of small entities, but that only a small 
subset of these small entities would be impacted and impacts would be 
negligible. It is unlikely that the proposed rule would affect any 
small governmental jurisdictions. The small entities potentially 
impacted by the proposed rule are comprised of small businesses 
participating in numerous fisheries in the Atlantic Ocean, Eastern 
Pacific Ocean (EPO), and Western and Central Pacific Ocean (WCPO) 
management units, as well as small businesses involved in the 
commercial trade or transport of oceanic whitetip sharks or their 
derivative products. Any additional costs associated with enforcement 
of the rule would be incurred by government agencies that do not 
qualify as small entities.
    The proposed rule would prohibit the take, whether intentional or 
incidental, of oceanic whitetip sharks within waters of the United 
States or the territorial seas of the United States, as well as upon 
the high seas, by any person subject to the jurisdiction of the United 
States. Hundreds of small entities participating in commercial and 
recreational fisheries in the Atlantic Ocean, EPO, and WCPO Management 
Units (MUs) would be subject to prohibitions under the proposed 
regulations. These entities are categorized under North American 
Industry Classification System (NAICS) codes 114111 (commercial finfish 
fishing) and 487210 (scenic and sightseeing transportation (water)). 
For purposes of compliance with the RFA, NMFS has established a small 
business size standard of $11 million in annual gross receipts for all 
businesses in the commercial fishing industry.
    Oceanic whitetip sharks in international waters of the Atlantic 
Ocean, EPO, and WCPO MUs are managed by the International Commission 
for the Conservation of Atlantic Tunas, the Inter-American Tropical 
Tuna Commission, and the

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Western and Central Pacific Fisheries Commission. There are 
approximately 2,100 U.S.-flagged vessels participating in international 
fisheries under the management of these Regional Fishery Management 
Organizations (RFMOs). Binding measures of each of the three RFMOs 
prohibit the retention, transshipping, landing, storing, selling, or 
offering for sale any part or whole carcass of oceanic whitetip sharks 
in any fishery by Contracting Parties, including U.S.-flagged vessels 
and persons subject to the jurisdiction of the United States. In 
addition, the Atlantic Highly Migratory Species (HMS) Pelagic Longline 
Fishery and Hawaii Pelagic Shallow Set Longline Fishery already undergo 
section 7 consultation on effects of the fisheries' actions on oceanic 
whitetip sharks in waters of the U.S. Exclusive Economic Zone and on 
the high seas. Despite the current lack of a 4(d) prohibition on take, 
NMFS included in biological opinions on each of the fisheries 
incidental take statements (ITSs) and RPMs intended to improve release 
conditions and post-release survival, as well as monitoring/reporting 
requirements for oceanic whitetip sharks. Given these baseline 
measures, the proposed rule is unlikely to impose additional reporting 
requirements on these fisheries for incidental take of oceanic whitetip 
sharks or result in any measurable incremental impacts to small 
entities due to their participation in international fisheries.
    Impacts of the proposed rule on U.S. federally and state-managed 
fisheries would be minor. Oceanic whitetip sharks are not a targeted 
species in U.S. fisheries due to a combination of factors, and 
historical landings of the sharks in state and federal waters have been 
very low. Possession and landing of sharks is prohibited in multiple 
fisheries, as well as in state waters of several coastal and island 
states and U.S. territories. Oceanic whitetip sharks are generally 
found outside state water boundaries, making catch of the sharks in 
state waters rare even if landing is not prohibited. Since 2000, the 
highest reported single-year total for combined commercial and 
recreational landings of oceanic whitetip sharks in all state and 
federal waters was 26 pounds in 2002. NOAA Fisheries' annual landings 
statistics indicate that there were no commercial or recreational 
landings of oceanic whitetip sharks in U.S. state or federal waters 
from 2015 to 2020, and there have been no commercial landings in U.S. 
territorial waters since 2016.
    Federally managed fisheries in the Atlantic most likely to interact 
with oceanic whitetip sharks and, therefore, most likely to be impacted 
by the proposed rule, include the Atlantic HMS fisheries and NMFS' 
Southeast Region's Coastal Migratory Pelagic (CMP) and Caribbean Reef 
Fish Fisheries. NMFS considers all HMS, CMP, and Caribbean Reef Fish 
fishery permit holders to be small entities because they had average 
annual receipts of less than $11 million for commercial fishing in 2021 
and the proposed rule would apply to all permit holders in these 
fisheries. However, this proposed rule is not expected to incrementally 
impact permit holders in these fisheries in cases in which retention of 
oceanic whitetip sharks is already prohibited.
    Recent Atlantic HMS fishery management measures prohibit the 
retention of oceanic whitetip sharks in all commercial and recreational 
HMS fisheries (89 FR 278, January 3, 2024). As of October 2022, 
approximately 206 Shark Directed Limited Access and 241 Shark 
Incidental Limited Access permits were issued. From 2017 through 2021, 
no oceanic whitetip sharks were landed in HMS commercial fisheries in 
U.S. waters of the Atlantic Ocean, including the Gulf of Mexico and 
Caribbean Sea. During that same time period, two oceanic whitetip 
sharks were harvested in the recreational sector. Thus, while this 
proposed rule could directly impact small entities with HMS Shark 
Directed Limited Access permits and Shark Incidental Limited Access 
permits, these impacts are expected to be none to negligible as these 
permit holders cannot retain any oceanic whitetip sharks under the 
current regulations. Similarly, any impacts of this proposed rule on 
small entities sponsoring HMS tournaments in which recreational permit 
holders participate and on HMS charter/headboat operators are also 
expected to be none to negligible, given the prohibition on retention 
that is currently in place.
    The CMP Fishery, as managed by the Fishery Management Plan for CMP 
Resources in the Gulf of Mexico and Atlantic Region, has been 
identified as a fishery likely to interact with oceanic whitetip 
sharks. Oceanic whitetip sharks are not targeted and are only caught as 
bycatch. The Caribbean Reef Fish Fisheries are managed by the island-
based fishery management plans (St. Croix, Puerto Rico, and St. Thomas/
St. John). These island-based fisheries do not target oceanic whitetip 
sharks, although interactions can occur as bycatch. Based on historical 
data, the number of interactions in the CMP Fishery and the Caribbean 
Reef Fish Fisheries is expected to be small and, thus, any economic 
impacts resulting from the proposed rule would be minimal.
    In the EPO, oceanic whitetip sharks are not a managed species under 
the Pacific Fishery Management Council or the North Pacific Fishery 
Management Council, nor are they an expressly prohibited species given 
their low frequency of occurrence in the regions. Encounters with 
oceanic whitetip sharks are extremely rare in EPO federally managed 
waters, and NMFS does not anticipate any impacts to small entities 
participating in EPO federally managed fisheries from the proposed 
rule.
    In the WCPO, NMFS has completed section 7 consultations on all of 
its federally managed fisheries that are likely to incidentally capture 
oceanic whitetip sharks. This proposed rule would apply to participants 
in these WCPO fisheries, which include the Hawaii Deep-set Longline 
Fishery; the Hawaii Shallow-set Longline Fishery, the Hawaii, Guam, and 
CNMI Bottomfish Fisheries; and the United States WCPO Purse Seine 
Fishery. NMFS considers all participants in these fisheries to be small 
entities because they had average annual receipts of less than $11 
million for commercial fishing in 2021. Despite the lack of a 
prohibition on take at the time, in each of the biological opinions on 
these fisheries, NMFS included ITSs and RPMs requiring monitoring/
reporting of oceanic whitetip sharks as well as measures to minimize 
captures and improve release conditions and post-release survival. NMFS 
does not foresee any additional impacts to small entities participating 
in WCPO federally managed fisheries, and therefore does not foresee the 
need for additional consultation from the proposed rule.
    This proposed rule would directly regulate small entities engaged 
in the import and export of oceanic whitetip sharks (or their 
derivative products) to or from the United States; the possession, 
transport, and sale of sharks that were illegally taken; and the 
possession, transport, and sale of oceanic whitetip sharks through both 
interstate and foreign commerce. Small entities subject to these 
prohibitions are largely categorized under NAICS codes 424460 (Fish and 
Seafood Merchant Wholesalers), 484 (Truck Transportation subsector), 
and 481112 (Scheduled Freight Air Transportation). According to data 
gathered from the Dun & Bradstreet Hoovers Database, there are more 
than 8,000 U.S. small businesses with primary NAICS code 424460, 
approximately 500,000 U.S. small businesses with a primary NAICS code

[[Page 41922]]

within the 484 subsector, and approximately 900 U.S. small businesses 
with primary NAICS code 481112. Despite the large number of small 
entities to which these prohibitions would apply, incremental impacts 
of this proposed rule on these small entities would likely be 
negligible. A query of the CITES trade database revealed a single 
import of oceanic whitetip shark fins into the United States between 
2013 and 2021, and this import, which occurred in 2019, was seized or 
confiscated. The CITES data further indicate that no commercial exports 
of oceanic whitetip shark fins or specimens from the United States 
occurred between 2013 and 2021, and that the last export of oceanic 
whitetip sharks or derivative products for non-commercial purposes 
occurred in 2019. Import and export of oceanic whitetip sharks for 
scientific research purposes would not be impacted due to the proposed 
exception from the section 9(a)(1)(A) prohibitions on import and/or 
export when specific conditions are met. As noted above, existing 
regulations limit opportunities for legal harvest of oceanic whitetip 
sharks in U.S. fisheries, and very little such harvest has occurred in 
recent years. Thus, this proposed rule would have little or no 
incremental impact on legal U.S. trade of oceanic whitetip sharks, 
their fins, and other derivative products. Specifically, the proposed 
rule would have negligible impacts on U.S. small entities engaged in 
the import, export, wholesale, retail sale, or transport of fish and 
seafood products. This includes small entities with fishery-specific 
dealer permits for sharks.
    Potential impacts of this proposed rule on small entities beyond 
those related to fisheries and trade are anticipated to be minor. Under 
the exception to the section 9(a)(1)(A), (B), and (C) prohibitions for 
scientific research activities that meet certain conditions, entities 
conducting qualifying scientific research and/or enhancement activities 
would not need to obtain a section 10(a)(1)(A) scientific enhancement 
permit. Small entities conducting aquaculture activities resulting in 
incidental take of oceanic whitetip sharks could be required to obtain 
a section 10(a)(1)(B) incidental take permit. However, there is no 
foreseeable instance of this occurring, and it is possible that section 
7 consultation on effects of the aquaculture operations on oceanic 
whitetip sharks would already address incidental take of the species if 
that did occur. Section 10 incidental take permits could also be 
required for entities conducting derelict gear or trash removal 
activities on the high seas or for those working to disentangle marine 
mammals from fishing gear/lines. However, these activities are 
typically carried out by federal and state agencies, which do not 
qualify as small entities.
    It has been determined that this proposed action would not 
duplicate or conflict with any federal rules. We note that fishermen, 
dealers, and managers in the fisheries to which this proposed rule 
would apply already must comply with domestic laws that implement a 
number of existing international agreements and other fishery 
management, environmental, and administrative measures. These include, 
but are not limited to, the Magnuson-Stevens Fishery and Conservation 
Management Act, the High Seas Fishing Compliance Act, the Marine Mammal 
Protection Act, the ESA, the National Environmental Policy Act, the 
Paperwork Reduction Act, the Coastal Zone Management Act, and the Shark 
Fin Sales Elimination Act.
    The RFA requires consideration of any significant alternatives to 
the proposed rule that would accomplish the stated objectives of the 
applicable statutes and would minimize significant economic impacts to 
small entities. We considered the following alternatives when 
developing this proposed rule.
    Alternative 1: No-action Alternative. Under the No-action 
Alternative, NMFS would not establish an ESA 4(d) rule (i.e., no change 
from current management policies). The No-action Alternative represents 
the regulatory status quo. Under the No-action Alternative, none of the 
prohibitions under section 9(a)(1) of the ESA would be extended to 
provide for the conservation of the oceanic whitetip shark. Current 
programs would continue to guide management of the species. ESA section 
7 consultations on federal agency actions would only address whether an 
action jeopardizes the continued existence of the oceanic whitetip 
shark. Reasonable and prudent alternatives would only be imposed if 
federal agency actions that take oceanic whitetip sharks are likely to 
jeopardize the continued existence of the species. ESA section 10 
permits would not be required for non-federal actions that take the 
species because take would not be prohibited.
    Currently, a suite of region-specific rules and best practices 
(described above and detailed in the Draft Recovery Status Review (NMFS 
2023)) regulate the harvest of oceanic shark species, including the 
oceanic whitetip shark, both in U.S. and international waters. NMFS 
concluded in its final listing determinations that existing regulations 
have not totally abated the impact of stressors on the threatened 
oceanic whitetip shark (83 FR 4153, January 30, 2018). In the Draft 
Recovery Status Review, NMFS finds that efforts to address 
overutilization of the species through regulatory measures appear 
largely inadequate (NMFS 2023). Under the No-action Alternative, 
oceanic whitetip sharks would remain vulnerable to stressors that would 
continue to affect population status of the species. Thus, the No-
action Alternative is not necessarily a ``no cost'' alternative.
    Alternative 2: Application of All ESA Section 9(a) Prohibitions 
with Exceptions (Proposed Alternative). Under the Proposed Alternative, 
ESA section 9(a)(1) prohibitions would apply to thousands of small 
entities engaged in commercial and recreational fishing; import, 
export, and wholesale of seafood products; and air and truck freight 
transport. However, as discussed above, both direct and indirect 
impacts to all potentially affected industries and entities would 
likely be minor. Import and export of oceanic whitetip sharks for 
qualifying scientific research purposes would not be impacted due to 
the proposed exception to the section 9(a)(1)(A) prohibition under this 
alternative. Alternative 2 was selected as the Proposed Alternative 
because it would promote the survival and recovery of the oceanic 
whitetip shark, and because this alternative would reduce the economic 
impacts on entities as compared to the economic impacts of Alternative 
3.
    Alternative 3: Application of ESA Section 9(a)(1) Prohibitions 
(Full Action Alternative). Alternative 3 would apply all Section 
9(a)(1) prohibitions of the ESA to the oceanic whitetip shark, without 
exception. Potential impacts on small entities under this alternative 
would be equivalent to those generated under the Proposed Alternative, 
with a few notable exceptions. Under this alternative, an entity 
carrying out scientific research activities that would qualify for the 
exception to section 9(a)(1)(A) and (B) prohibitions under the Proposed 
Alternative would be required to obtain a section 10(a)(1)(A) permit 
for such activities. An entity that would qualify under the Proposed 
Alternative for the exception from the section 9(a)(1)(A) prohibitions 
on import and/or export of oceanic whitetip sharks or their parts would 
also be required to obtain a section 10(a)(1)(A) permit. Finally, under 
this alternative, a law enforcement official or management authority 
whose take of an oceanic whitetip shark would qualify under the

[[Page 41923]]

Proposed Alternative for the exception from the prohibition on take 
would be required to obtain a section 10(a)(1)(A) permit. The 
administrative effort and associated cost of obtaining a section 
10(a)(1)(A) permit that would not be required under the Proposed Action 
constitutes an incremental impact of Alternative 3, relative to impacts 
resulting from the Proposed Action. While activities that are known to 
contribute to the extinction risk of the species (e.g., take) would be 
prohibited under this alternative, activities that contribute to the 
conservation and recovery of the species would likely be deterred or 
delayed.

E.O. 12988--Civil Justice Reform

    We have determined that this proposed rule does not unduly burden 
the judicial system and that it meets the requirements of sections 3(a) 
and 3(b)(2) of E.O. 12988. We are proposing protective regulations 
pursuant to provisions in the ESA using an existing approach that 
improves the clarity of the regulations and minimizes the regulatory 
burden of managing ESA listings while retaining the necessary and 
advisable protections to provide for the conservation of threatened 
species.

E.O. 13175--Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and with respect 
to Indian lands, tribal trust resources, and the exercise of tribal 
rights. Pursuant to these authorities, lands have been retained by 
Indian Tribes or have been set aside for tribal use. These lands are 
managed by Indian Tribes in accordance with tribal goals and objectives 
within the framework of applicable treaties and laws. E.O. 13175 
outlines the responsibilities of the Federal Government in matters 
affecting tribal interests.
    E.O. 13175 requires that if NMFS issues a regulation that has 
substantial direct effects on the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
Government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. In developing this 
proposed rule, we found that the proposed 4(d) rule will not impose 
substantial direct compliance costs on the communities of Indian tribal 
governments and does not have tribal implications.

E.O. 13132--Federalism

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

Paperwork Reduction Act (PRA)

    This proposed rule does not contain any new or revised collection 
of information requirements. This rule, if adopted, would not impose 
recordkeeping or reporting requirements on state or local governments, 
individuals, businesses, or organizations.

E.O. 13211--Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking ``significant energy actions.'' According to 
E.O. 13211, ``significant energy action'' means any action by an agency 
that promulgates or is expected to lead to the promulgation of a final 
rule or regulation that is a significant regulatory action under E.O. 
12866 and is likely to have a significant adverse effect on the supply, 
distribution, or use of energy. NMFS has determined that no Statement 
of Energy Effects is required because this proposed rule is not 
significant under E.O. 12866.

E.O. 12898--Environmental Justice

    E.O. 12898 requires that Federal actions address environmental 
justice in the decision-making process. In particular, the adverse 
human health or environmental effects of the actions should not have a 
disproportionately high effect on minority and low-income communities. 
The proposed protective regulations are not expected to have a 
disproportionately high effect on minority populations or low-income 
populations.

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: May 8, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 223 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. Add Sec.  223.216 to subpart B to read as follows:


Sec.  223.216  Oceanic whitetip shark.

    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to the 
threatened oceanic whitetip shark listed in Sec.  223.102(e), except as 
provided in paragraph (b) of this section.
    (b) Exceptions. Exceptions to the prohibitions applied in paragraph 
(a) of this section to the threatened oceanic whitetip shark listed in 
Sec.  223.102(e) are described in paragraphs (b)(1) through (b)(3) of 
this section.
    (1) Scientific research import/export exception. The prohibitions 
of section 9(a)(1)(A) of the ESA, as applied in paragraph (a) of this 
section, relating to the threatened oceanic whitetip shark listed in 
Sec.  223.102(e) do not apply when the following conditions are met: 
(1) the import or export is accompanied by proper permits issued under 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) indicating that the trade is for the purposes 
of scientific research; and (2) the import or export is carried out in 
accordance with all other applicable laws and regulations. If these 
conditions are met, import and/or export for the purposes of scientific 
research would not constitute a violation of the section 9(a)(1)(A) 
prohibitions, and an ESA section 10(a)(1)(A) permit would not be 
required.
    (2) Scientific research take exception. The take prohibitions of 
sections 9(a)(1)(B) and (C) of the ESA, as applied in paragraph (a) of 
this section, relating to the threatened oceanic whitetip shark listed 
in Sec.  223.102(e) do not apply to ongoing or future scientific 
research when the following conditions are met: (1) the scientific 
research activities are carried out by or in collaboration with a 
research institution; state, tribal, or

[[Page 41924]]

federal agency; or other scientific organization in a good faith effort 
to advance the conservation and/or recovery of the species; (2) the 
scientific research activities are intended to involve only non-lethal 
take, i.e., no individuals may be intentionally killed for the purposes 
of scientific research under this exception; and (3) the scientific 
research activities are carried out in accordance with all other 
applicable laws and regulations. If these conditions are met, 
scientific research activities resulting in take would not constitute a 
violation of the prohibitions, and an ESA section 10(a)(1)(A) permit 
would not be required.
    (3) Law enforcement take exception. The take prohibitions of 
section 9(a)(1)(B) of the ESA, as applied in paragraph (a) of this 
section, relating to the threatened oceanic whitetip shark listed in 
Sec.  223.102(e) do not apply to law enforcement officials or 
management authorities, including any employee or designee of NMFS or 
of any other governmental entity that has co-management authority for 
the oceanic whitetip shark if, when acting in the course of their 
official duties, it is necessary to take an oceanic whitetip shark to: 
aid a sick, injured, entangled, or stranded oceanic whitetip shark, 
dispose of a dead oceanic whitetip shark, or salvage a dead oceanic 
whitetip shark (or parts or samples thereof) which may be useful for 
scientific study.

[FR Doc. 2024-10466 Filed 5-13-24; 8:45 am]
BILLING CODE 3510-22-P