Endangered Species Law & Policy

On January 30, 2018, the National Marine Fisheries Service (NMFS) issued a final rule listing the oceanic whitetip shark (Carcharinus lonigmanus) as a threatened species under the Endangered Species Act (ESA).  This final listing rule is the culmination of NMFS’ analysis following the 2015 petition filed by Defenders of Wildlife seeking to either list the species range-wide or, alternatively, to list two distinct populations (DPSs) of the oceanic whitetip shark.  In the final rule, NMFS notes that the shark is a globally-distributed species that has not undergone any range contraction or experienced population extirpations in any portion of its range despite heavy harvest bycatch and decreases in abundance of the species.  These points were central to NMFS’ determination that the species merits a threatened listing status as opposed to an endangered status.  NMFS listed the shark as threatened under the ESA because the species has experienced significant historical and ongoing declines in abundance globally, with estimates of up to a 96 percent decline in some areas, due to overutilization from fishing pressure (both as bycatch and intentional catch) and inadequate regulatory mechanisms to protect the species.

NMFS noted that global regulations for fisheries and trade are insufficient to control for the threat of overutilization via fishing pressure, which includes the effects of the fin trade. Despite an increase in species-specific fisheries regulations throughout the species’ range, NMFS concluded that existing regulatory mechanisms are largely inadequate for addressing the threat of overutilization throughout a large portion of the species’ range.

Additionally, NMFS determined it was not obligated to consider the listing of two potential DPSs because it already found that the shark warrants listing range-wide. Specifically, NMFS stated, We concluded that the oceanic whitetip shark warrants listing as a threatened species throughout its range.  As such, we have discretion as to whether we should divide a species into DPSs, and the [public] commenter is incorrect that we are required to commit additional agency resources to conduct an analysis and break up the species into the smallest listable entity (i.e., DPSs) despite a warranted listing for the species globally.  NMFS, however, also briefly noted that it did consider the best available science and concluded that the science does not support the identification of DPSs for the shark.  NMFS’ assertion that it is not required to break up a species eligible for listing into the smallest listable entity has potential implications for use of DPSs going forward.

This listing may impact U.S. longline and purse seine fisheries in the Northwest Atlantic, Hawaii, American Samoa, and elsewhere throughout the species’ range, as the species is susceptible to incidental capture as bycatch. Because NMFS is listing the species as threatened rather than endangered, the ESA’s take prohibitions do not automatically apply.  NMFS is not currently proposing to promulgate a 4(d) special rule that would apply some or all of the ESA’s take prohibitions to the oceanic whitetip shark, although NMFS may propose to do so in the future.