WASHINGTON (CN) – The National Marine Fisheries Service announced its final listing determination for the oceanic whitetip shark as a threatened species under the Endangered Species Act Monday, disappointing those who had hoped for endangered species protections.
The Defenders of Wildlife conservation group spurred the listing process with its 2015 petition.
“Defenders is pleased that, in response to our listing petition, the National Marine Fisheries Service has recognized the significant threats to the oceanic whitetip shark posed by overfishing, especially the cruel and wasteful practice of shark finning, and incidental fisheries bycatch,” Defenders senior attorney Jane Davenport said in an email. “However, we’re disappointed that NMFS has not put any legal teeth into the listing decision by issuing specific protective regulations under ESA Section 4(d).”
Section 4(d) authorizes the agency to put specific protections in place for threatened species.
The U.S. Fish and Wildlife Service, the federal listing agency that handles land-based species, provides the same protections to species listed as threatened or endangered. But the National Marine Fisheries Service, under the National Oceanic and Atmospheric Administration, does not provide the same protections to threatened marine species as those it lists as endangered.
Section 9 of the ESA lays the foundation for prohibition of “take” – the harming or killing of threatened or endangered species.
“With respect to ESA 4(d), FWS has had a general regulation in place for decades applying all of the broad take prohibitions of Section 9 for endangered animal species to any animal species listed as threatened,” Davenport explained. “NMFS does not have a similar general regulation. Therefore, any species that it lists as threatened will not receive any protection from the take prohibitions of Section 9 unless the agency promulgates a species-specific regulation.”
Fisheries service spokesperson Kate Brogan concurred with Davenport’s assessment of the difference between the way the two agencies handle threatened species listings.
“NOAA Fisheries does differ from FWS in its approach to threatened species,” she said in an email. “In 1978, FWS issued a regulation whereby all of the prohibitions in Section 9 of the ESA are automatically applied to threatened species, unless they issue a special regulation to modify those prohibitions. NOAA Fisheries does not have a similar regulation. Rather, NOAA Fisheries is able to tailor protections for threatened species on a case-by-case basis.”
The biggest threat to oceanic whitetips stems from “finning,” according to the listing proposal published in December 2016. Finning is the practice of cutting fins off sharks and throwing the live sharks back into the ocean to die. The fins are then used in a soup that is popular in Asian markets. The fins command up to $85 per kilogram in Hong Kong, the largest shark fin market. Although many types of sharks are targeted, the whitetip’s large fins make it a preferred species for finning. Whitetip sharks, once among the most abundant shark species, have declined up to 90 percent in some areas of the Pacific Ocean and up to 88 percent in the Atlantic and Gulf of Mexico, according to the agency’s 2017 status report.
Many national and international laws already exist to address the finning trade, such as the Shark Finning Prohibition Act and the Shark Conservation Act, but still it continues. Other sharks, including scalloped hammerheads and shark-family species, such as the guitarfish, are also in steep decline.
U.S. fisheries that operate in waters where whitetips swim are already regulated and prohibited from retaining the sharks, Brogan said.
“Oceanic whitetip sharks are frequently encountered and caught as bycatch in numerous industrial fisheries throughout its range, the majority of which is outside the U.S. Exclusive Economic Zone,” she said. “Oceanic whitetip sharks are caught as bycatch in U.S. fisheries, however, this particular species does not account for a large portion of the catch, and we find the impact of these fisheries on the status of the oceanic whitetip shark to be likely minimal.”
Even though the fisheries service does not automatically extend all take protections to threatened species, the listing does provide other protections. The agency says it is continuing to evaluate whether it will address the special take protections in a future rule.
“Although NOAA Fisheries is not extending the prohibitions of Section 9 to oceanic white tip sharks at this time, federal agencies must still ensure any activity they authorize, fund or carry out does not jeopardize oceanic whitetip sharks and NOAA Fisheries must determine whether a recovery plan will benefit the conservation of the species,” Brogan said.
The agency is also considering whether to designate a critical habitat, further noting that “recognition of the species’ imperiled status through listing may also promote conservation actions by federal and state agencies, foreign entities, private groups, and individuals.”
The listing will be effective 30 days after the publication date, which is expected to be Jan. 30, 2018.