Endangered and Threatened Species; Determination on the Designation of Critical Habitat for Oceanic Whitetip Shark, 12898-12905 [2020-04481]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 44 (Thursday, March 5, 2020)]
[Notices]
[Pages 12898-12905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04481]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 200226-0065; RTID 0648-XR088]


Endangered and Threatened Species; Determination on the 
Designation of Critical Habitat for Oceanic Whitetip Shark

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

ACTION: Notice.

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

SUMMARY: We, NMFS, have determined that a designation of critical 
habitat under the Endangered Species Act (ESA) for the oceanic whitetip 
shark (Carcharhinus longimanus) is not prudent at this time. Based on a 
comprehensive review of the best scientific data available, we find 
there are no identifiable physical or biological features that are 
essential to the conservation of the oceanic whitetip shark within 
areas under U.S. jurisdiction. We also find that there are no areas 
outside of the geographical area occupied by the species under U.S. 
jurisdiction that are essential to its conservation. As such, we find 
there are no areas within the jurisdiction of the United States that 
meet the definition of critical habitat for the oceanic whitetip shark.

DATES: This finding is made on March 5, 2020.

ADDRESSES: Electronic copies of the determination, list of references, 
and supporting documents prepared for this action are available from 
the NMFS Office of Protected Resources website at https://www.fisheries.noaa.gov/species/oceanic-whitetip-shark.

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

SUPPLEMENTARY INFORMATION:

Background

    On January 30, 2018, we published a final rule to list the oceanic 
whitetip shark (Carcharhinus longimanus) as a threatened species under 
the ESA (83 FR 4153). Section 4(b)(6)(C) of the ESA requires the 
Secretary of Commerce

[[Page 12899]]

(Secretary) to designate critical habitat concurrently with making a 
determination to list a species as threatened or endangered unless it 
is not determinable at that time, in which case the Secretary may 
extend the deadline for this designation by 1 year. In our proposal to 
list the species as threatened (81 FR 96304, Dec. 29, 2016), we 
requested relevant information from interested persons to help us 
identify and describe the physical and biological features essential to 
the conservation of the oceanic whitetip shark, and assess the economic 
impacts of designating critical habitat for the species. We solicited 
input from the public, other governmental agencies, the scientific 
community, industry, environmental groups, and any other interested 
parties on features and areas that may meet the definition of critical 
habitat for the oceanic whitetip shark within U.S. waters. However, at 
the time of listing, and based on comments provided and the best 
available scientific information, we concluded that critical habitat 
was not determinable because: (1) Sufficient information was not 
available to assess the impacts of designation; and (2) sufficient 
information was not available regarding the physical and biological 
features essential to conservation. We again requested interested 
persons to submit relevant information related to the identification of 
critical habitat and essential physical or biological features for this 
species, as well as economic or other relevant impacts of designation 
of critical habitat for the oceanic whitetip shark. Though we did not 
receive any information relevant to the designation of critical habitat 
in response to this request, we used the best available scientific data 
to evaluate whether critical habitat could be identified for the 
oceanic whitetip shark. As discussed below, we still find that there 
are no identifiable physical or biological features that are essential 
to the conservation of the oceanic whitetip shark within areas under 
U.S. jurisdiction, or unoccupied areas under U.S. jurisdiction that are 
essential to the conservation of the species. Therefore, at this time 
we find no areas within U.S. jurisdiction that meet the definition of 
critical habitat for the oceanic whitetip shark.
    This finding describes information on the biology, distribution, 
and habitat use of the oceanic whitetip shark and the methods used to 
identify areas that may meet the definition of critical habitat. In 
this determination, we focus on information directly relevant to the 
designation of critical habitat for oceanic whitetip sharks.

Oceanic Whitetip Shark Biology and Status

    The following discussion of the life history and status of the 
oceanic whitetip shark is based on the best scientific data available, 
including the ``Endangered Species Act Status Review Report: Oceanic 
Whitetip Shark (Carcharhinus longimanus)'' (Young et al. 2017).
    The oceanic whitetip shark is a large, pelagic species of shark, 
described historically as one of the most abundant shark species in 
tropical waters worldwide (Mather and Day 1954; Backus et al. 1956; 
Compagno 1984). The oceanic whitetip shark belongs to the family 
Carcharhinidae and is a member of the genus Carcharhinus, which 
includes other pelagic species of sharks, such as the silky shark (C. 
falciformis) and dusky shark (C. obscuras).
    The oceanic whitetip shark is globally distributed and can be found 
in all ocean basins in epipelagic tropical and subtropical waters. The 
species can be found offshore, along the edges of continental shelves, 
or around oceanic islands in deep water (Backus et al. 1956; Strasburg 
1958; Compagno 1984; Bonfil et al. 2008) and appears to be thermally 
sensitive, exhibiting a strong preference for the surface mixed layer 
in warm waters above 20 [deg]C (Bass et al. 1973; Bonfil et al. 2008). 
Several archival satellite tagging studies from various regions of the 
species' range indicate that oceanic whitetip sharks spend most of 
their time at depths of less than 200 m (above the thermocline) (Musyl 
et al. 2011; Carlson and Gulak 2012; Howey-Jordan et al. 2013; Tolotti 
et al. 2017). The oceanic whitetip is generally thought to be a long-
lived species, ranging from 12 to 18 years in the North Pacific and 
Western and Central Pacific, respectively (Joung et al. 2016; D'Alberto 
et al. 2017), and 13 to 19 years in the South Atlantic (Seki et al. 
1998; Lessa et al. 1999; Rodrigues et al. 2015), with relatively low 
reproductive output.
    Similar to other carcharhinid species, the oceanic whitetip shark 
is viviparous (i.e., gives birth to live young) with placental 
embryonic development. Reproductive periodicity is thought to be 
biennial, with individuals giving birth on alternate years after a 10-
12 month gestation period (Backus et al. 1956; Seki et al. 1998; 
Tambourgi et al. 2013). However, recent unpublished data obtained via 
ultrasonography of pregnant females over multiple years suggests that 
at least for a proportion of the population, reproduction could be 
annual (James Gelsleichter, University of North Florida, unpublished 
data). Litter sizes range from 1 to 14 (average of 6), and there is a 
positive correlation between female size and number of pups per litter, 
with larger sharks producing more offspring (Backus et al. 1956; 
Strasburg 1958; Bass et al. 1973).
    In terms of movement, the oceanic whitetip shark is considered to 
be a highly migratory species, with several satellite tracking studies 
measuring long distance movements of up to 4,285 km (Musyl et al. 2011) 
and over 6,000 km in the open ocean (Filmalter et al. 2012). Although 
the species is considered highly migratory and capable of making long 
distance movements, data from pop-off satellite archival tags provides 
evidence that this species also exhibits a high degree of philopatry in 
some locations (e.g., Cat Island, Bahamas and Northeast Brazil) (Howey-
Jordan et al. 2013; Tolotti et al. 2015). Overall, oceanic whitetip 
sharks are highly mobile and can travel great distances in the open 
ocean (Filmalter et al. 2012), with excursion estimates of several 
thousand kilometers demonstrated in multiple studies. However, 
information on potential migratory corridors and seasonality is 
lacking.
    As discussed in the proposed rule (81 FR 96304, December 29, 2016) 
and final rule (83 FR 4153, January 30, 2018) to list the oceanic 
whitetip shark, the most significant threat to the species is 
overutilization for commercial purposes. Although oceanic whitetip 
sharks are not necessarily a targeted species, they are caught as 
bycatch in a number of fisheries throughout their range, and are most 
susceptible to industrial longline fisheries. Oceanic whitetip shark 
fins are also prevalent in the international fin trade, which has 
likely contributed to the significant declines of the species 
throughout its range. Given the relatively low reproductive output and 
overall productivity of the oceanic whitetip shark, it is inherently 
vulnerable to threats that would deplete its abundance, with a low 
likelihood of recovery. Therefore, while there is considerable 
uncertainty regarding the current abundance of oceanic whitetip sharks 
throughout its entire range, the best available information indicates 
that the species is likely to become an endangered species within the 
foreseeable future due to overutilization.

Critical Habitat Identification and Designation

    Critical habitat is defined by section 3 of the ESA as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or

[[Page 12900]]

biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed upon a determination 
by the Secretary that such areas are essential for the conservation of 
the species. This definition provides a step-wise approach to 
identifying areas that may qualify as critical habitat for the oceanic 
whitetip shark: (1) Determine the geographical area occupied by the 
species at the time of listing; (2) identify physical or biological 
habitat features essential to the conservation of the species; (3) 
delineate specific areas within the geographical area occupied by the 
species on which are found the physical or biological features; (4) 
determine whether the features in a specific area may require special 
management considerations or protection; and (5) determine whether any 
unoccupied areas are essential for conservation. Our evaluation and 
conclusions as we worked through this step-wise process are described 
in detail in the following sections.

Geographical Area Occupied by the Species

    The ``geographical area occupied by the species'' is defined in our 
regulations as an area that may generally be delineated around species' 
occurrences, as determined by the Secretary (i.e., range). Such areas 
may include those areas used throughout all or part of the species' 
life cycle, even if not used on a regular basis (e.g., migratory 
corridors, seasonal habitats, and habitats used periodically, but not 
solely by vagrant individuals). (50 CFR 424.02). Further, our 
regulations at 50 CFR 424.12(g) state that the Secretary will not 
designate critical habitat within foreign countries or in other areas 
outside of the jurisdiction of the United States. As such, we cannot 
designate critical habitat for the oceanic whitetip outside of U.S. 
waters and will focus the following discussion on the U.S. 
jurisdictions where the oceanic whitetip shark is known to occur.

Northwest Atlantic and Caribbean

    The geographic range of the oceanic whitetip shark in the Northwest 
Atlantic and Caribbean is reportedly very broad, occurring from Maine 
to Florida on the East Coast, in the Gulf of Mexico and in U.S. 
Territorial waters within the Caribbean (U.S. Virgin Islands and Puerto 
Rico) (Compagno 1984). However, the NMFS Northeast Fisheries Science 
Center (NEFSC) describes this species as ``uncommon'' in the U.S. 
Atlantic EEZ (NMFS 2017). Essential fish habitat (EFH; defined under 
the MSA as those waters and substrate necessary to fish for spawning, 
breeding, feeding or growth to maturity (16 U.S.C. 1802(10))), has been 
designated for the oceanic whitetip shark in waters greater than 200 m 
in depth from offshore of the North Carolina/Virginia border to the 
Blake Plateau, which is a broad, relatively flat portion of the upper 
continental slope that extends from the coast of North Carolina to 
central Florida. Essential fish habitat was not designated north of 
Virginia (NMFS 2017). Designated EFH in the Gulf of Mexico includes 
offshore habitats of the northern Gulf of Mexico at the Alabama/Florida 
border (e.g., the Mississippi plume shows high occurrence of juveniles 
and adults) to offshore habitats of the western Gulf of Mexico south of 
eastern Texas. Additionally, the entire U.S. Caribbean (waters of 
Puerto Rico and the U.S. Virgin Islands) is considered to be EFH for 
the oceanic whitetip shark (NMFS 2017). These designations were based 
on high encounters of the species in fisheries observer data from the 
U.S. pelagic longline fishery as well as recent movement data from 
archival satellite tags (NMFS 2017), which confirms the historical and 
current presence of oceanic whitetip sharks in these waters. Areas of 
high occurrence are also off the east coast of Florida, Charleston Bump 
off the southeast United States, and between Florida, Cuba and the 
Yucatan Peninsula (J. Carlson, unpublished analysis, 2019). However, 
while we can confirm that the geographical areas occupied by the 
oceanic whitetip include U.S. waters, there is no information regarding 
the specific habitat use of oceanic whitetip sharks in any of these 
areas (J. Carlson, NMFS Southeast Fisheries Science Center pers. comm. 
to C. Young, NMFS OPR, 2017), and nurseries and pupping grounds have 
not been identified in U.S. waters (NMFS 2017; CITES 2013).

Eastern Pacific

    In the eastern Pacific, the oceanic whitetip shark reportedly 
occurs from southern California to Peru, including the Gulf of 
California and Clipperton Island (Compagno 1984). While its eastern 
Pacific range reportedly extends as far north as southern California, 
this is likely due to warm water incursions that allow the species to 
venture into waters far beyond its normal range (Compagno 1984). Ebert 
et al. (2017) notes that oceanic whitetip sharks are ``rare'' in 
southern California waters, usually observed around the Channel Islands 
during warm water years. Observer data of the West Coast-based U.S. 
fisheries further confirm this finding, with oceanic whitetip sharks 
not observed in the catches. For example, in the California/Oregon 
drift gillnet fishery, which operates off the U.S. Pacific coast from 
the U.S./Mexican border to waters off of Oregon, observers recorded 
zero oceanic whitetip sharks in 8,698 sets conducted over the past 25 
years (from 1990-2015; Young et al. 2017). We have no other information 
to suggest that oceanic whitetip sharks regularly occupy the waters of 
southern California or elsewhere along the U.S. West Coast. Based on 
the best available data, the distribution of the species appears to be 
concentrated in areas farther south in foreign waters or the high seas. 
For example, fisheries data from the eastern Pacific tuna purse seine 
fishery shows catches of oceanic whitetip are concentrated in the area 
between 10[deg] North and 10[deg] South, despite sets in more northerly 
waters (Hall and Roman 2013). Other fisheries data confirm the presence 
of oceanic whitetip sharks in waters off of Costa Rica, Ecuador and 
Peru (Arauz 2017; Martinez-Ortiz et al. 2015; Gonzalez-Pestana et al. 
2014). Although areas of southern California seem to be outside of the 
core tropical distribution of oceanic whitetip sharks and are used only 
during rare weather events that cause warm water incursions, we still 
consider this area to be part of the species' range. However, given the 
extremely limited data and seemingly limited use of this part of their 
range, we are unable to identify any features of the area that are 
essential to the conservation of the oceanic whitetip shark.

Western and Central Pacific

    The range of oceanic whitetip sharks in the Western and Central 
Pacific is broad, occurring throughout the region between 30[deg] N to 
35[deg] S, with catches of the species most frequently occurring in the 
central North Pacific south of 20[deg] N latitude and some individuals 
occurring in more northerly locations (Clarke 2011; Clarke et al. 
2011a). This range encompasses U.S. waters of Hawaii, Guam, American 
Samoa, Commonwealth of the Northern Mariana Islands (CNMI), and the 
Pacific Remote Island Areas. Fisheries data from a number of sources 
confirm the occurrence of the oceanic whitetip shark in all of these 
waters under U.S. jurisdiction (Brodziak et al. 2013; Clarke et al. 
2011a; Clarke et al. 2011b; Lawson 2011; Walsh and Clarke 2011). As 
such, we conclude that waters under the aforementioned U.S. 
jurisdictions throughout the Western and Central

[[Page 12901]]

Pacific are geographical areas occupied by the species, though we are 
unable to identify any features of the area that are essential to the 
conservation of the oceanic whitetip shark.
    In summary, based on the information above, we consider the 
geographical areas occupied by the oceanic whitetip shark in the 
Atlantic at the time of listing to include waters under U.S. 
jurisdiction off the U.S. East Coast, Gulf of Mexico, U.S. Virgin 
Islands, and Puerto Rico. We consider the geographical areas occupied 
by the oceanic whitetip shark in the Pacific to include waters under 
U.S. jurisdiction off southern California, Hawaii, American Samoa, 
Guam, CNMI, and the Pacific Remote Island Areas.

Physical or Biological Features Essential for Conservation

    Within the geographical area occupied by an endangered or 
threatened species at the time of listing, critical habitat consists of 
specific areas upon which are found those physical or biological 
features essential to the conservation of the species and that may 
require special management considerations or protection. The ESA does 
not specifically define physical or biological features; however, court 
decisions and joint NMFS-USFWS regulations at 50 CFR 424.02 provide 
guidance on how physical or biological features are expressed. 
Specifically, these regulations state that the physical and biological 
features are those that are essential to support the life-history needs 
of the species, including but not limited to, water characteristics, 
soil type, geological features, sites, prey, vegetation, symbiotic 
species, or other features. A feature may be a single habitat 
characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. (50 CFR 
424.02).
    Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms 
``conserve,'' ``conserving,'' and ``conservation'' to mean: To use and 
the use of all methods and procedures which are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided pursuant to this chapter are no longer necessary. For 
oceanic whitetip sharks, we consider conservation to include the use of 
all methods and procedures necessary to bring oceanic whitetip sharks 
to the point at which factors related to population ecology and vital 
rates indicate that the species is recovered in accordance with the 
definition of recovery in 50 CFR 402.02. Important factors related to 
population ecology and vital rates include population size and trends, 
range, distribution, age structure, gender ratios, age-specific 
survival, age-specific reproduction, and lifetime reproductive success. 
Based on the available knowledge of oceanic whitetip shark population 
ecology and life history, we have identified four biological behaviors 
that are critical to the goal of increasing survival and population 
growth: (1) Foraging, (2) pupping, (3) breeding, and (4) migration. In 
the following section, we evaluate whether there are physical and 
biological features of the habitat areas known or thought to be used 
for these behaviors that are essential to the species' conservation 
because they facilitate or are intimately tied to these behaviors and, 
hence, support the life-history needs of the species. Because these 
behaviors are essential to the species' conservation, facilitating or 
protecting each one is considered a key conservation objective for any 
critical habitat designation for this species.

Physical and Biological Features of Foraging Habitat That Are Essential 
to the Conservation of the Species

    Oceanic whitetip sharks are top-level predators in pelagic 
ecosystems and feed primarily on pelagic teleosts (bony fish) and 
cephalopods (mostly squids), but are also known to consume sea birds, 
marine mammals, other sharks and rays, molluscs, crustaceans, large 
sportfish, and even garbage (Madigan et al. 2015; Bonfil et al. 2008; 
Cort[eacute]s 1999; Backus et al. 1956). Based on the species' diet, 
the oceanic whitetip shark has a high trophic level, scoring 4.2 out of 
a maximum 5.0 (Cort[eacute]s 1999). Although typically solitary, 
oceanic whitetip sharks have been observed aggregating around food 
sources (Bonfil et al. 2008). Historically, oceanic whitetip sharks 
were described as pests to pelagic longline fisheries for tuna, as the 
sharks would persistently follow boats and cause significant damage to 
the catches (Compagno 1984). Oceanic whitetips have also been observed 
scavenging off dead marine mammal carcasses off South Africa (Bass et 
al. 1973) and feeding opportunistically on recreationally caught 
sportfish in the Bahamas (Madigan et al. 2015). In fact, Madigan et al. 
(2015) suggested that abundance and availability of large pelagic 
teleosts in waters off Cat Island, Bahamas might be a possible 
mechanism driving site-fidelity and aggregation of oceanic whitetip 
sharks in the region. Additionally, results showed spatiotemporal 
variation in feeding habits of the species, with short-term (i.e., near 
Cat Island) diets comprised mostly of larger pelagic teleosts, and 
long-term diets (>1 year) comprised mostly of squid, teleosts, and 
small foraging fish (Madigan et al. 2015). However, although site 
fidelity to Cat Island has been demonstrated via satellite tracking 
data (Howey-Jordan et al. 2013) the reasons driving this site fidelity 
(e.g., foraging, navigation, pupping, mating, etc.) are unknown at this 
time. See The Physical and Biological Features of Migratory Habitat 
That Are Essential to the Conservation of the Species section below for 
more information. Based on the foregoing information, the oceanic 
whitetip shark appears to be an opportunistic predator that is not 
limited in its foraging habitats and feeds on whatever prey is 
available.
    Aside from the observations described above, there is no 
information regarding established foraging grounds for the oceanic 
whitetip shark. Recent tracking studies from the Bahamas, Brazil, and 
the Indian Ocean have revealed complex vertical movements in the 
species and diel behavior changes (Papastamatiou et al. 2018; Tolotti 
et al. 2017; Howey et al. 2016). Based on tracking data from the 
Bahamas, oceanic whitetip sharks regularly exhibit mesopelagic 
excursions (defined as >=5 consecutive depth records below the 200 m 
isobaths), particularly during dusk periods that may be related to 
foraging (Howey et al. 2016). Tolotti et al. (2017) noted that deep 
dives below 150 m were rare, but the variation seen in the shark's 
vertical movement patterns could be linked to prey distribution as 
well. Papastamatiou et al. (2018) further reaffirms this possibility 
with evidence from oceanic whitetip sharks outfitted with cameras. 
Potential prey (mackerel, scad and squid) were observed during dives 
(as opposed to when individuals were in shallow water) and at the apex 
of the dive when bursts of speed were common (Papastamatiou et al. 
2018). Squid and other cephalopods are likely an important prey species 
for the oceanic whitetip shark; Cortes (1999) and Madigan et al. (2015) 
both reported that cephalopods comprise approximately 44 percent of the 
oceanic whitetip shark's regular diet. Additionally, oceanic whitetip 
sharks have been associated with short-finned pilot whales 
(Globicephala macrorhynchus) of which squid is a main prey source 
(Bester, n.d.). Although the reason for this behavior is

[[Page 12902]]

unknown, it is thought to be prey-related, as pilot whales are 
extremely efficient at locating food sources (Migura and Meadows 2002). 
The diel vertical migrations of oceanic whitetip sharks are similar to 
and may overlap with the diel vertical migrations and/or distribution 
of many species of mesopelagic and bathypelagic squids (see original 
reference in Howey et al. 2016). As such, it is possible these 
mesopelagic excursions represent a foraging strategy for seeking out 
prey, such as squid. Although the species of squid consumed by oceanic 
whitetips are unknown, many species have a wide geographic 
distribution, moving throughout the deep waters of the ocean, and, 
therefore, it is difficult to link these prey species to any 
``specific'' areas within the oceanic geographic areas occupied. 
Additionally, there was no site-specific correlation with the 
mesopelagic dives undertaken by oceanic whitetips tagged in the 
Bahamas. Individuals not only made consistent dives year-round near the 
aggregation site in the Bahamas, but also during migrations (Howey et 
al. 2016). Clear temporal or spatial patterns of vertical movements 
could also not be identified in individuals tagged in Brazil or the 
Indian Ocean, as behaviors alternated regularly and there was no 
evident pattern across the time series of the study (Tolotti et al. 
2017). Overall, although it is hypothesized that these mesopelagic 
excursions are for purposes of foraging, this theory has not been 
confirmed.
    Overall, the best available information indicates that oceanic 
whitetip sharks are opportunistic feeders and may exhibit behavioral 
plasticity when encountering different prey types (Papastamatiou et al. 
2018). The species does not appear to be associated with any specific 
foraging grounds, adapting to its present habitat by feeding on 
whatever prey are available and even scavenging on whale carcasses when 
available. There does not appear to be a specific prey species that is 
required to be present in a habitat for successful foraging to occur, 
nor are there any specific habitat characteristics that appear to be 
intimately tied with feeding behavior. As such, we are unable to 
identify any particular physical or biological features of areas that 
facilitate successful foraging. Further, no oceanic whitetip sharks 
have been observed foraging in the geographic areas under U.S. 
jurisdiction, aside from opportunistic depredation on the catch of 
pelagic longline fisheries. For the foregoing reasons, it is not 
possible to identify any specific areas within waters under U.S. 
jurisdiction with physical or biological features related to foraging 
that are essential to the conservation of the species.

Physical and Biological Features of Pupping Habitat That Are Essential 
to the Conservation of the Species

    Because the oceanic whitetip shark is a pelagic species that spends 
most of its time offshore in the open ocean (Compagno 1984) and is one 
of the few species that may complete its entire life cycle in open 
water, there is limited information regarding the species' life history 
and biology. Studies from the Northwest Atlantic and Indian Ocean 
estimate that oceanic whitetip sharks give birth from late spring to 
summer (Backus et al. 1956; Bass et al. 1973, Compagno 1984; Bonfil et 
al. 2008). Based on ultrasonography, Gelsleichter (unpublished) 
suggests pupping occurs in the Bahamas in May and June. In contrast, 
Seki et al. (1998) found no apparent parturition period in the North 
Pacific, as embryos were observed in almost every month in which data 
was collected. In the Southwest Atlantic, oceanic whitetips likely give 
birth in the latter half of the year, potentially from September to 
November (Tambourgi et al. 2013) although Amorim (1998) found full-term 
embryos from July to November, which may indicate a relatively extended 
pupping period for this species, as was observed in the North Pacific 
by Seki et al. (1998) (Tambourgi et al. 2013). Additionally, recent 
conflicting results regarding the species' reproductive periodicity 
(i.e., whether oceanic whitetip sharks give birth annually or 
biannually), may indicate the possibility of non-specific pupping 
seasons for this species (Clarke et al. 2015). Clarke et al. (2015) 
notes that pregnant females are often found close to shore, 
particularly around oceanic Caribbean Islands, which suggests that 
females may come close to shore to pup. However, the specific locations 
of pupping grounds and nurseries have not been identified for the 
oceanic whitetip shark, and habitat requisites of these areas, such as 
temperature, depth, and substrate, are unknown.
    To date, neither pupping grounds nor nursery areas have been 
identified definitively in the Atlantic for the oceanic whitetip shark. 
Only generalized descriptions of ``potential'' pupping and nursery 
areas are available, based largely on observations of young of the year 
(YOY) and juvenile sharks in fisheries catch data. For example, 
observations of YOY oceanic whitetips in fisheries catches off 
Northwest Cuba (Vald[eacute]s et al. 2016) and observations of very 
small juveniles in the waters off Haiti (Jamie Aquino, Haiti Ocean 
Project, pers. comm. to C. Young, NMFS OPR, 2019) may indicate 
potential pupping/nursery areas in these regions. However, these areas 
are outside U.S. jurisdiction and cannot be designated as critical 
habitat for the species. In addition, while the available information 
suggests that there are several regions outside U.S. jurisdiction with 
potential pupping grounds, there is insufficient information to 
identify the essential physical or biological features for pupping 
grounds. Within U.S. waters, an area of pelagic waters over the 
continental shelf running along the southeastern coast of the United 
States has been described as a potential nursery area based solely on 
observations of young oceanic whitetip sharks offshore in this general 
area (NMFS 2017). In determining the revised EFH designation for the 
oceanic whitetip shark, which was based on fisheries observer and 
archival satellite tagging data (NMFS 2017), high encounters of YOY 
seem to occur over the continental shelf from North Carolina to 
Florida, and in other pockets in the central Gulf of Mexico and north 
of the U.S. Virgin Islands (J. Carlson, NMFS SEFSC, pers. comm. to C. 
Young, NMFS OPR, 2019). High juvenile encounters seem to occur in 
similar areas along the U.S. East Coast, with another area of 
occurrence to the north of Puerto Rico and moderate usage of waters 
north and south of the U.S. Virgin Islands (J. Carlson, NMFS SEFSC, 
pers. comm. to C. Young, NMFS OPR, 2019). Although these areas could 
represent nursery grounds for the oceanic whitetip shark, oceanic 
whitetip sharks have not been observed pupping in these areas and more 
importantly, we are unable to determine the physical or biological 
features that are essential for pupping. Using the nursery area 
identification criteria proposed by Heupel et al. (2007) and validated 
by Froeschke et al. (2010), areas described above meet the first 
criteria (newborn or YOY sharks are more commonly encountered in the 
area than in other areas), though data regarding the second two 
criteria (newborn or YOY sharks have a tendency to remain or return for 
extended periods; the area or habitat is repeatedly used across years, 
whereas others are not) are insufficient for a complete analysis. 
Further, in the EFH designation for oceanic whitetip sharks in the 
Atlantic, insufficient information prevented any differentiation 
between EFH areas for neonate/juvenile and adult size classes, 
resulting in a

[[Page 12903]]

combined EFH designation for all size classes (NMFS 2017). This 
emphasizes the lack of information regarding any potential pupping and 
nursery habitat for the species in U.S. waters of the Atlantic.
    As described previously, oceanic whitetip sharks in the Western and 
Central Pacific are distributed throughout the region from 30[deg] N 
and 30[deg] S, but are concentrated in warm equatorial waters between 
10[deg] N and 10[deg] S. Although limited information suggests there 
are some areas that may serve as potential pupping grounds, 
descriptions are fairly general and whether these areas occur in waters 
under U.S. jurisdiction is uncertain. Records of pregnant females and 
newborns are concentrated between the equator and 20[deg] N, and 
between 170[deg] E to 140[deg] W, with higher concentrations in the 
central part of this distribution just north of 10[deg] N (Bonfil et 
al. 2008; CITES 2013). This area is a large swath of ocean that 
partially overlaps the EEZs of Hawaii and several of the U.S. Pacific 
Remote Island Areas (Johnston Atoll, Palmyra, Jarvis Island, Howland & 
Baker Islands, and potentially Wake Island). Seki et al. (1998) 
observed small neonates (<60 cm precaudal length) in a narrow band 
between 10[deg]N and 20[deg] N, including waters south of Hawaii, and 
concluded that there is an oceanic whitetip nursery ground in the 
``oceanic region'' of the North Pacific. Bonfil et al. (2008) 
reaffirmed that newborn oceanic whitetips occur mainly in a narrow 
strip in the central Pacific slightly north of 10[deg] N. This, coupled 
with higher concentrations of pregnant females, suggest a pupping 
ground for oceanic whitetip may exist in the central Pacific between 
150[deg] W and 180[deg] W and just above 10[deg] N, but a more refined 
definition of the area is not possible due to incomplete sampling 
(Bonfil et al. 2008). More recent analyses of fisheries catch data 
determined that juveniles tend to occur in waters near the equator to 
the west, just north of the northeastern islands of Papua New Guinea 
and the Solomon Islands (Clarke 2011; Clarke et al. 2011a). As in the 
Atlantic areas, though YOY oceanic whitetip sharks have been more 
commonly encountered in these areas, there is insufficient data to 
apply Heupel et al.'s (2007) second and third criteria for identifying 
pupping areas in the Pacific. Other than generalized descriptions of 
potential nursery area locations, which are based on fisheries 
encounters of neonates, juveniles, and pregnant females, there is 
inadequate information to identify any physical or biological features 
of these areas that would be necessary to facilitate successful pupping 
behavior for the species.
    Overall, while some waters under U.S. jurisdiction may overlap with 
general areas identified as potential pupping or nursery grounds for 
the species, the descriptions of these areas are fairly vague (e.g., 
pelagic waters over continental shelves, oceanic areas, etc.) and are 
based solely on high encounters with various size classes of the 
species. We have no other information to specify the locations of these 
areas within U.S. waters or identify any physical or biological 
features within these areas that are essential to support the life-
history needs of the oceanic whitetip shark. As such, we cannot 
identify any specific essential features that define pupping habitat 
for the oceanic whitetip shark in U.S. waters.

The Physical and Biological Features of Breeding Habitat That Are 
Essential to the Conservation of the Species

    Little information exists on the reproductive ecology of the 
oceanic whitetip shark, as mating behavior is rarely observed in the 
wild and has not been formally documented. Important areas for mating 
are also unknown for oceanic whitetip sharks and information regarding 
their reproductive periodicity and specific mating seasons is limited. 
To identify potential sites as mating grounds, we looked for the 
presence of both mature females and males. Aside from one established 
aggregation location in foreign waters (Cat Island, Bahamas), which may 
be due to availability of food as opposed to reproductive purposes 
(Madigan et al. 2015), there are no known aggregation sites of mature 
oceanic whitetip sharks. In examining fisheries observer data and 
tagging data for revising the EFH designation for the oceanic whitetip 
shark (NMFS 2017), high encounters of oceanic whitetip adults have been 
observed in pockets along the U.S. East Coast from South Carolina to 
Florida in waters greater than 200 m, with potential hotspots off the 
eastern central coast of Florida and in the Gulf of Mexico south of 
Louisiana and Texas (J. Carlson, NMFS SEFSC, pers. comm. to C. Young, 
NMFS OPR, 2019). Based on this limited information, we can cautiously 
confirm that male and female adult oceanic whitetip sharks co-occupy 
waters under U.S. jurisdiction in the Atlantic and Gulf of Mexico. 
Nonetheless, we have no evidence to confirm that these individuals are 
mating in these waters, nor can we identify any physical or biological 
features that would facilitate successful breeding in these 
geographical areas and thus be essential to the conservation of the 
species.
    In the U.S. western Pacific, including Hawaii, American Samoa, 
Guam, and CNMI, EFH for adult and juvenile oceanic whitetip sharks is 
broadly defined as the water column down to a depth of 1,000 m from the 
shoreline to the outer limit of the EEZ (WPFMC 2009). Thus, similar to 
EFH in the Atlantic, EFH in the Pacific is designated the same for all 
size classes in this region. It should also be noted that this is a 
generic EFH designation for all pelagic species, and not specific to 
the oceanic whitetip shark.
    A tagging study in Hawaiian waters, conducted from March 2001 
through November 2006, involved the capture and tagging of both mature 
males and females in the general vicinity that has been identified as a 
potential pupping ground (i.e., the area between 150[deg] W and 
180[deg] W and just above 10[deg] N; Bonfil et al. 2008). However, only 
11 of the 16 tagged sharks were measured and only four were likely 
mature (3 males and 1 female), with the remaining likely immature 
juveniles. Adults of both sexes have also been caught in the pelagic 
longline fishery operating in the Hawaiian EEZ and in the 
Papahanaumokuakea Marine National Monument. Based on an assessment of 
interactions with the Hawaii pelagic longline fishery from 2004-2018, 
adults of both sexes occur in Hawaiian waters, and the majority of 
interactions occur on the north side of the Hawaiian Islands in a 
linear band stretching southeast to northwest within the limits of the 
EEZ, both inside and outside of the Papahanaumokuakea Marine National 
Monument (NMFS 2019). One area of high occurrence of interactions is on 
the south-westernmost portion of the EEZ, within the limits of the 
Monument (NMFS 2019). Adults of both sexes have also been caught off 
Kona, Hawaii (M. Hutchinson, NMFS Pacific Islands Fisheries Science 
Center, pers. comm. to Chelsey Young, NMFS OPR, 2017). Other analyses 
of fisheries catch data from across the Western and Central Pacific 
indicate that adults appear to predominate more to the southwest near 
the identified center of abundance (10[deg] S, 190[deg] E; refer to 
Figure 3 in Clarke 2011) and may overlap with waters of American Samoa. 
However, while adults of both sexes likely co-occur in waters under 
U.S. jurisdiction in both Hawaii and American Samoa, we have no 
additional information to confirm that these areas represent mating 
grounds for the species, or identify the physical and biological 
features that would be necessary for mating to occur in these areas.

[[Page 12904]]

    Overall, the areas where oceanic whitetip shark mating occurs 
remain unknown. Additionally, there has not been any systematic 
evaluation of the particular physical or biological features that 
facilitate successful mating behavior. As such, we cannot identify 
physical or biological features of breeding habitat that are essential 
to the conservation of the species.

The Physical and Biological Features of Migratory Habitat That Are 
Essential to the Conservation of the Species

    Although small and large-scale migratory movements have been 
observed for the oceanic whitetip shark, information regarding movement 
patterns or possible migration paths is fairly limited (Bonfil et al. 
2008). During longline fishing surveys in the Central Pacific Ocean, 
Strasburg (1958) noted that oceanic whitetip sharks did not exhibit any 
specific migratory pattern. Since then, several tagging studies have 
been conducted on oceanic whitetip sharks to determine horizontal and 
vertical movement patterns of the species, confirming the species' 
strong thermal preference for temperatures above 20 [deg]C, highly 
migratory nature, and site fidelity to certain locations (Tolotti et 
al. 2017; Howey et al. 2016; Tolotti et al. 2015; Howey-Jordan et al. 
2013; Carlson and Gulak 2012; Musyl et al. 2011).
    In the Atlantic, limited tagging data from the NMFS Cooperative 
Tagging Program (Kohler et al. 1998; NMFS unpublished data) from eight 
oceanic whitetip sharks do not elucidate any migratory paths or 
corridors for the oceanic whitetip shark. The tagging data largely 
reveal the movements of some juveniles from the northeastern Gulf of 
Mexico to the East Coast of Florida, from the Mid-Atlantic Bight to 
southern Cuba, from the Lesser Antilles west into the central Caribbean 
Sea, from east to west along the equatorial Atlantic, and from southern 
Brazil to farther offshore in a northeasterly direction (Bonfil et al. 
2008). Only one adult of unknown sex was both tagged and recaptured 
near Cat Island, Bahamas (NMFS unpublished data). In another tagging 
study at Cat Island, 11 mature oceanic whitetip sharks (10 females, 1 
male) were tagged in May of 2011. After remaining within 500 km of the 
tagging site for approximately 30 days, individuals dispersed across a 
vast area of the western North Atlantic and to several different 
locations, with many of the sharks returning to the Bahamas 
approximately 150 days later (Howey-Jordan et al. 2013). However, 
unlike other pelagic animals in the North Atlantic that exhibit more 
uniform movement patterns within a single demographic group, mature 
oceanic whitetip females tagged were not uniform in their movement 
patterns in the months after they were tagged (Howey-Jordan et al. 
2013). Some individuals remained within the Bahamas' EEZ for their 
entire track while others made long-distance movements outside of the 
EEZ (Howey-Jordan et al. 2013). This may be attributed to the oceanic 
whitetip's presumed biennial reproduction cycle (Backus et al. 1956; 
Seki et al. 1998), resulting in differences between individuals in 
particular stages of the reproductive cycle; thus, variation in 
individual movements may correspond to migrations by gravid and non-
gravid females to disjunct pupping and mating areas (Howey-Jordan et 
al. 2013). However, this has yet to be confirmed, and more information 
is needed to determine why these sharks are moving to particular 
locations (e.g., northern Lesser Antilles, northern Bahamas, and north 
of the Windward Passage). Moreover, none of these locations are within 
U.S. waters.
    In Hawaiian waters, tagging data from 13 oceanic whitetip sharks 
revealed a complex pattern, where nine individuals showed a meandering 
swimming behavior and three individuals made more straight-line 
movements (Musyl et al. 2011). The three individuals that made more 
straight-line movements were all males, whereas the sharks that 
followed the meandering swimming pattern and remained relatively close 
to the tagging area were a mix of both males and females (Musyl et al. 
2011). Aside from confirming the epipelagic niche these sharks occupy 
and their strong thermal preference of temperatures above 20 [deg]C, 
there were no obvious reasons underpinning the movements undertaken by 
the tagged individuals.
    Although the available information suggests that these sharks do 
undergo short and long-distance migrations, the space or migratory 
corridor used by oceanic whitetip sharks during these migrations 
remains unknown. In addition, the migratory tracking studies that have 
been conducted in waters under U.S. jurisdiction have not elucidated 
any information on any potential migratory corridors or habitats that 
may exist within waters under U.S. jurisdiction for the oceanic 
whitetip shark. Until such time that the movements and migrations of 
the species throughout its life cycle are better understood, the 
importance of physical features (e.g., salinity and temperature) to the 
oceanic whitetip shark's distribution cannot be clearly established 
(Bass et al. 1973). As such, we cannot identify any specific essential 
features that define migratory habitat for oceanic whitetip sharks.

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA defines critical habitat to include 
specific areas outside the geographical area occupied by a threatened 
or endangered species at the time it is listed if the areas are 
determined by the Secretary to be essential for the conservation of the 
species. Regulations at 50 CFR 424.12(b)(2) address designation of 
unoccupied area as critical habitat and the regulations at 50 CFR 
424.12(g) state that critical habitat shall not be designated within 
foreign countries or in other areas outside of United States 
jurisdiction.
    Because we are unable to identify any physical or biological 
features of oceanic whitetip shark habitat that are essential to the 
conservation of the species, we cannot identify any unoccupied habitat 
that contains such features. Furthermore, due to the limited 
understanding of habitat use by the oceanic whitetip shark, we cannot 
identify any unoccupied areas that have a reasonable certainty of 
contributing to the conservation of the species or are essential to the 
conservation of the species.

Critical Habitat Determination

    Given the best available information and the above analysis of this 
information, we find that there are no identifiable occupied areas 
under the jurisdiction of the United States that contain physical or 
biological features that are essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species. Thus, we conclude there are no specific areas within the 
oceanic whitetip shark's respective range and under U.S. jurisdiction 
that meet the definition of critical habitat; and therefore, we have 
determined that a critical habitat designation for oceanic whitetip 
sharks is not prudent.
    Although we have made this ``not prudent'' determination, the areas 
occupied by oceanic whitetip sharks under U.S. jurisdiction will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the ESA, as well as consultations pursuant to 
section 7(a)(2) of the ESA for Federal activities that may affect the 
oceanic whitetip shark, as determined on the basis of the best 
available information at the time of the action. Through the 
consultation process, we will continue to assess effects of Federal 
actions on the species and its habitat.

[[Page 12905]]

    Additionally, we remain committed to promoting the recovery of the 
oceanic whitetip shark through both domestic and international efforts. 
As noted in the proposed and final rules (81 FR 96304, December 29, 
2016; 83 FR 4153, January 30, 2018, respectively), the most significant 
threat to the oceanic whitetip shark is overutilization by commercial 
fisheries, primarily in areas outside of U.S. jurisdiction. Oceanic 
whitetip sharks are caught as bycatch in a number of fisheries 
throughout their range, and they are still a prevalent species in the 
international fin trade despite retention prohibitions in tuna Regional 
Fisheries Management Organizations and a Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES) Appendix II 
listing. Therefore, efforts to address overutilization of the species 
through regulatory measures appear inadequate (Young et al. 2017). 
Thus, recovery of the oceanic whitetip shark is highly dependent upon 
international conservation efforts. To address this, we have developed 
a recovery plan outline that provides our preliminary strategy for the 
conservation of the oceanic whitetip shark. This outline can be found 
on our website at: https://www.fisheries.noaa.gov/species/oceanic-whitetip-shark#resources and provides an interim recovery action plan 
as well as preliminary steps we will take towards the development of a 
full recovery plan. We also conducted two recovery planning workshops: 
One in Honolulu, Hawaii (April 23-24, 2019) that focused on the Indo-
Pacific portion of the species' range, and one in Miami, Florida 
(November 13-14, 2019) that focused on the Atlantic/Caribbean portion 
of the species' range. These workshops brought together numerous 
experts and various stakeholders to collect information, facts, and 
perspectives on how to recover the oceanic whitetip shark. Input 
received from these workshops, including ideas and recommendations 
regarding recovery criteria and actions, will help inform the 
development of the forthcoming recovery plan for the species.
    We will continue to work towards the conservation and recovery of 
oceanic whitetip sharks, both on a domestic and global level, including 
with our international partners and within regional fisheries 
management organizations and other international bodies to promote the 
adoption of conservation and management measures for the threatened 
oceanic whitetip shark.

References

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

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

    Dated: February 28, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-04481 Filed 3-4-20; 8:45 am]
 BILLING CODE 3510-22-P