Proposed Rule2024-10466
Endangered and Threatened Wildlife and Plants; Protective Regulations for the Oceanic Whitetip Shark (Carcharhinus longimanus)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 14, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/docket/NOAA-NMFS-2023-0117">https://www.regulations.gov/docket/NOAA-NMFS-2023-0117</a>. You may
submit comments on the proposed rule, identified by NOAA-NMFS-2023-0117
by the following method:
<bullet> Electronic Submissions: Submit all electronic comments via
the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.fisheries.noaa.gov/species/oceanic-whitetip-shark#conservation-management">https://www.fisheries.noaa.gov/species/oceanic-whitetip-shark#conservation-management</a>.
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
[[Page 41918]]
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 (<a href="https://www.regulations.gov">https://www.regulations.gov</a>) 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
[[Page 41921]]
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
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</html>Indexed from Federal Register on May 14, 2024.
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