[Federal Register Volume 77, Number 189 (Friday, September 28, 2012)]
[Proposed Rules]
[Pages 59582-59589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23963]



[[Page 59582]]

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DEPARTMENT OF COMMERCE

National Ocean and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 120807313-2313-01]
RIN 0648-XC154


Endangered and Threatened Wildlife; 90-Day Finding on Petitions 
To List the Northeastern Pacific Ocean Distinct Population Segment of 
Great White Shark as Threatened or Endangered Under the Endangered 
Species Act

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

ACTION: 90-day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on two petitions received 
to list the northeastern Pacific Ocean population of great white shark 
(Carcharodon carcharias) as a threatened or endangered distinct 
population segment (DPS) under the Endangered Species Act (ESA) and to 
designate critical habitat concurrently with the listing. We find that 
the petitions and information in our files present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. We will conduct a status review of the species 
to determine if the petitioned action is warranted. To ensure that the 
status review is comprehensive, we are soliciting scientific and 
commercial information pertaining to this species from any interested 
party.

DATES: Information and comments on the subject action must be received 
by November 27, 2012.

ADDRESSES: You may submit comments, information, or data, identified by 
``NOAA-NMFS-2012-0176'' by any one of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal http://www.regulations.gov. To submit 
comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter ``NOAA-NMFS-2012-0176'' in the keyword 
search. Locate the document you wish to comment on from the resulting 
list and click on the ``Submit a Comment'' icon on the right of that 
line.
     Mail or hand-delivery: Protected Resources Division, 
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213.
    Instructions: All comments received are a part of the public record 
and may be posted to http://www.regulations.gov without change. All 
personally identifiable information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or other information you 
wish to protect from public disclosure. NMFS will accept anonymous 
comments. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Craig Wingert, NMFS, Southwest Region, 
(562) 980-4021; or Marta Nammack, NMFS, Office of Protected Resources, 
(301) 427-8469.

SUPPLEMENTARY INFORMATION:

Background

    On June 25, 2012, we received a petition from WildEarth Guardians 
to list the northeastern Pacific Ocean DPS of great white shark 
(Carcharodon carcharias) as threatened or endangered under the ESA. The 
petitioners also requested that critical habitat be designated for this 
DPS under the ESA. On August 13, 2012, we received a second petition, 
filed jointly by Oceana, Center for Biological Diversity (CBD), and 
Shark Stewards, to list the northeastern Pacific Ocean DPS of white 
shark (another common name for the great white shark) under the ESA and 
designate critical habitat. Both petitions bring forth much of the same 
or related factual information on the biology and ecology of great 
white sharks, and raise several identical or similar issues related to 
potential factors affecting this species. As a result, we are 
considering both petitions simultaneously in this 90-day finding. 
Copies of the petitions are available upon request (see ADDRESSES, 
above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the status review 
with a finding published in the Federal Register as to whether or not 
the petitioned action is warranted within 12 months of receipt of the 
petition. Because the finding at the 12-month stage is based on a 
thorough review of the available information, as compared to the more 
limited scope of review at the 90-day stage, a ``may be warranted'' 
finding does not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include any subspecies and, for vertebrate species, 
any DPS which interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'') 
policy clarifies the agencies' interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing 
regulations, we determine whether species are threatened or endangered 
based on any one or a combination of the following factors: (1) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) the 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' continued existence (16 
U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
    ESA implementing regulations define ``substantial information'' in 
the context of reviewing a petition to list, delist, or reclassify a 
species as the amount of information that would lead a reasonable 
person to believe that the measure proposed in the petition may be 
warranted (50 CFR 424.14(b)). In evaluating whether substantial 
information is contained in a petition, the Secretary must consider 
whether the petition: (1) Clearly indicates the administrative measure 
recommended

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and gives the scientific and any common name of the species involved; 
(2) contains detailed narrative justification for the recommended 
measure, describing, based on available information, past and present 
numbers and distribution of the species involved and any threats faced 
by the species; (3) provides information regarding the status of the 
species over all or a significant portion of its range; and (4) is 
accompanied by the appropriate supporting documentation in the form of 
bibliographic references, reprints of pertinent publications, copies of 
reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action ``may be'' 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is either threatened or endangered to support a positive 
90-day finding.
    We evaluate the petitioners' request based upon the information in 
the petition including its references and the information readily 
available in our files. We do not conduct additional research and we do 
not solicit information from parties outside the agency to help us in 
evaluating the petition. We will accept the petitioners' sources and 
characterizations of the information presented if they appear to be 
based on accepted scientific principles, unless we have specific 
information in our files indicating the petition's information is 
incorrect, unreliable, obsolete, or otherwise irrelevant to the 
requested action. Information that is susceptible to more than one 
interpretation or that is contradicted by other available information 
will not be dismissed at the 90-day finding stage, so long as it is 
reliable and a reasonable person would conclude it supports the 
petitioners' assertions. In other words, conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information negates a positive 90-day finding 
if a reasonable person would conclude that the uncertainty from the 
lack of information suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk that is cause for concern; this may be 
indicated in information expressly discussing the species' status and 
trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but the classification alone does 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source of information that the 
classification is based upon in light of the standards on extinction 
risk and impacts or threats discussed above.

Distribution and Life History of the Great White Shark

    The great white shark (also known as ``white shark'') is a 
circumglobal species that resides primarily in temperate and sub-
tropical waters (Compagno et al., 1997; Domeier and Nasby-Lucas, 2006; 
Domeier et al., 2012). White sharks commonly inhabit coastal and 
continental shelf waters, although they have been observed entering 
marine bays, estuaries, lagoons, and harbors (Compagno et al., 1997). 
Recent studies suggest that these sharks also spend considerable amount 
of time in open ocean habitats thousands of kilometers from shore 
(Domeier, 2012). Areas likely to attract adult white sharks include 
coastal waters adjacent to pinniped colonies or haulout sites, as these 
are favored prey species (Klimley et al., 1996; Hussey et al., 2012). 
Known prey of white sharks also includes a wide range of other species 
from smaller demersal fish, such as rockfish, to giant pelagic species, 
such as tuna and swordfish, as well as sea turtles, seabirds, 
cetaceans, and other species of sharks (Fergusson, 1996; Long and 
Jones, 1996; Wilson and Patyten, 2008; IUCN, 2009; Santana-Morales et 
al., 2012). White sharks are recognized as apex predators throughout 
the oceanic and coastal marine environments where they occur, and may 
play an important role in ecosystem balance and population control for 
a number of other marine species (Myers et al., 2007; Wilson and 
Patyten, 2008). White sharks demonstrate the ability to undertake 
transoceanic migrations to specific locations in patterns that appear 
to be predictable (Boustany et al., 2002; Jorgensen et al., 2010; 
Chapple et al., 2011; Domeier, 2012).
    Great white sharks are distinguished by their stout spindle-shaped 
body, moderately long and bluntly conical snout, five long gill slits, 
large falcate first dorsal fin with free rear tip located over the 
pectoral inner margins, pivoting second dorsal and anal fins, white 
ventral body color, and lack of any secondary keels on the base of the 
caudal fin. The teeth are large, flat, and triangular shaped, with 
blade-like serrations, although teeth in the rear of

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the mouth get progressively smaller and sometimes lack serration, 
especially in younger sharks (Compagno et al., 1997; FAO, 2012). The 
maximum size of this species has not been established, but has been 
estimated at about 6 m (19 ft), and possibly up to 6.4 m (21 ft), or 
more (Cailliet et al., 1985; Wilson and Patyten, 2008; IUCN, 2009). 
Estimated weight of the largest individuals is nearly 3,000 kg (6,600 
lbs) (Cailliet et al., 1985; Anderson et al., 2011).
    Available information on the general life history pattern of white 
sharks suggests that females mature at about 12-14 years of age, and 
about 4-5 m (13-16 ft) in length. Males mature at 9-10 years old, and 
about 3.5-4.1 m (11.5-13.5 ft) in length (Compagno et al., 1997). It is 
believed that females give birth at 2 or 3-year intervals to litters of 
2-10 pups that are 1-1.5 m (3.3-4.9 ft) in length after a 12-22 month 
gestation (Francis, 1996; Wilson and Patyten, 2008; Domeier, 2012). 
Embryos are oophagus, meaning they consume and store yolk in their 
stomachs (Francis, 1996; Uchida et al., 1996), and viviparous (live) 
birth of pups likely occurs sometime between May and October (Domeier, 
2012). Specific knowledge of pup survival rates is not available, but 
is estimated to be low (CITES, 2004).
    Primary concentrations of white sharks occur in South Africa, 
Australia and New Zealand, and the northeastern Pacific Ocean, with 
other white sharks observed in the north Atlantic and the Mediterranean 
(Boustany et al., 2002; Domeier and Nasby-Lucas, 2006; Weng et al., 
2007; Jorgensen et al., 2010). Genetic and migration studies provide 
evidence that these may represent separate populations (Jorgensen et 
al., 2010). Mitochondrial DNA suggests at least three matrilineal 
populations: South Africa/northwest Atlantic; southwest Pacific; and 
northeastern Pacific (Gubili et al., 2012). Although the southwestern 
Pacific and northeastern Pacific populations could potentially 
interbreed, the genetic sampling indicates that these two populations 
are largely reproductively isolated. It has been suggested that the 
northeastern Pacific population was founded by relatively few sharks 
within the last 200,000 years, and hasn't mixed with other shark 
populations near Australia or South Africa since (Hance, 2009; 
Jorgensen et al., 2010).
    White sharks in the northeastern Pacific Ocean have been observed 
from Baja California to the Bering Sea (Kato, 1965; COSEWIC, 2006) and 
offshore out to Hawaii. Using satellite and acoustic telemetry, 
researchers have followed movements of white sharks in the northeastern 
Pacific Ocean and discovered patterns of site fidelity and repeated 
homing in structured seasonal migrations, including fixed destinations, 
schedules, and routes (Boustany et al., 2002; Jorgensen et al., 2010). 
As a result, three core areas have been identified in the central and 
northeastern Pacific: (1) North American shelf waters; (2) slope and 
offshore waters of Hawaii; and (3) an area between the North American 
coast and Hawaii termed the ``white shark caf[eacute]'' or Shared 
Offshore Foraging Area (SOFA) (Jorgensen et al., 2010; Anderson et al., 
2011; Domeier, 2012). Each winter, great white sharks leave coastal 
aggregation sites off of central California (Farallon Islands/
A[ntilde]o Nuevo/Point Reyes) and migrate 2000-5000 km offshore to 
subtropical and tropical pelagic habitats, returning to coastal 
aggregation sites in late summer. Site fidelity in North American 
coastal hotspots has also been documented using photo-identification 
(Jorgensen et al., 2010; Chapple et al., 2011; Sosa-Nishizaki et al., 
2012). Guadalupe Island, located 250 miles off the coast of Baja 
California, Mexico, is also a preferred aggregation site for adults 
(Sosa-Nishizaki et al., 2012). Adult males annually migrate from 
preferred aggregation sites to the SOFA/white shark caf[eacute]. 
Females have been observed to migrate biennially between preferred 
aggregation sites and the area surrounding the SOFA/white shark 
caf[eacute], usually after males have returned to coastal aggregation 
sites (Domeier, 2012).
    The coastal areas of southern California and Baja California, 
Mexico, appear to be important nursery areas hosting large 
concentrations of young-of-the-year (YOY) and juvenile great white 
sharks (Dewar et al. 2004; Weng et al., 2007; Galv[aacute]n-
Maga[ntilde]a et al., 2011; Domeier, 2012; Santana-Morales et al., 
2012). Information gained from the records of white shark bycatch in 
California and Baja fisheries, including gillnet, seine-net, and hook 
and line fisheries (Lowe et al., 2012; Santana-Morales et al., 2012), 
along with relatively consistent reporting of juvenile white shark 
observations along the southern California coast, lend support to the 
assertion that this area is important developmental habitat for white 
sharks before they mature into larger adults. Estimates of abundance 
have not been available historically, but recent studies have suggested 
the population size at two known aggregation sites (Farallon Islands/
Central California and Guadalupe Island) in the northeastern Pacific 
Ocean is around 340 sub-adults and adults (Chapple et al., 2011; Sosa-
Nishizaki et al., 2012).

Analysis of the Petitions and Information Readily Available in NMFS 
Files

    The two petitions request the same action, to list the northeastern 
Pacific Ocean (NEP) DPS of great white shark (or white shark) as 
endangered or threatened under the ESA and to designate critical 
habitat for the DPS. Therefore, we evaluated the information provided 
in both petitions and readily available in our files to determine if 
the petitions presented substantial scientific or commercial 
information indicating that the petitioned action may be warranted. 
Both petitions contain information on the species, including the 
taxonomy, species description, geographic distribution, habitat, 
population status and trends, and factors contributing to the species' 
decline. Both petitions state that a primary threat to the NEP 
population of white shark is exploitation by fishing (historical and 
current) and bycatch in fisheries. Both petitions also assert that the 
lack of adequate regulatory protection worldwide, bioaccumulation of 
contaminants, and habitat degradation, as well as the species' 
biological constraints, increase the susceptibility of the NEP 
population of white shark to extinction.
    According to both petitions, the NEP population of white shark 
qualifies as a DPS because the NEP population is both discrete and 
significant, as defined under the Services' DPS policy (61 FR 4722; 
February 7, 1996). The WildEarth Guardians petition asserts that all of 
the five causal factors in section 4(a)(1) of the ESA are adversely 
affecting the continued existence of the NEP population, whereas the 
Oceana et al. petition does not discuss disease and predation as a 
factor that is adversely affecting the NEP population. In the following 
sections, we analyze the information presented by the petitions and in 
our files on the qualification of the NEP population of white shark as 
a DPS and the specific ESA section 4(a)(1) factors affecting the 
population's risk of extinction.

Qualification of Northeastern Pacific Ocean Population as a DPS

    Both petitions assert that the NEP population of white shark 
qualifies as a DPS, because it is both a discrete and significant 
population segment of the species, as defined in the NMFS and USFWS 
policy on DPSs (61 FR 4722; February 7, 1996). First, the petitions 
state that the NEP population is discrete based on both genetic and 
spatial

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separation from other populations of white shark. Genetic analyses 
indicate that the NEP population of white sharks is similar to and 
descended from the Australian/New Zealand (ANZ) population (Jorgensen 
et al., 2010; Gubili et al., 2012). The NEP population was likely 
established during the Late Pleistocene, from a limited number of 
founders from the ANZ population, but has since had little gene flow 
with the ANZ population (Jorgensen et al., 2010). Thus, although the 
two populations can interbreed, they are thought to be largely 
reproductively isolated (Jorgensen et al., 2010).
    In addition to genetic separation, the NEP population is 
geographically separated from other populations, adheres to predictable 
seasonal migratory routes, and exhibits strong site fidelity within the 
NEP. As discussed above, white sharks in the NEP population range from 
Baja California to the Bering Sea, and out to Hawaii. Tagged white 
sharks from the NEP population consistently used three core areas 
within the northeastern and central Pacific ocean: (a) The coastal 
shelf waters of North America (primarily from central California to 
Baja California); (b) the slope and offshore waters of the Hawaiian 
archipelago; and (c) offshore waters between California and Hawaii, 
including an offshore habitat approximately halfway between California 
and Hawaii referred to as the SOFA/white shark caf[eacute], used 
primarily by adults (Boustany et al., 2002; Jorgensen et al., 2010; 
Domeier, 2012). The individuals followed seasonal migratory patterns, 
generally moving offshore starting in winter and returning to the 
California and Baja California coast in the late summer (Jorgensen et 
al., 2010; Domeier, 2012). Tagged individuals from the NEP population 
did not show any straying or spatial overlap with the ANZ population 
(Jorgensen et al., 2010). YOY and juvenile white sharks also stay 
within the geographic boundaries of the NEP population, likely using 
nearshore, shallow waters of the Southern California Bight and Baja 
California as nursery habitats, with adults likely aggregating at sites 
off central California and at Guadalupe Island (off Baja California) to 
mate (Domeier, 2012). Thus, the available information on migratory 
behavior and habitat use indicates that the NEP population is 
geographically separated from other white shark populations.
    Second, the petitions state that the NEP population is discrete 
because of international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA (i.e., the 
inadequacy of existing regulatory mechanisms as a factor to consider in 
determining whether a species is endangered or threatened). The 
petitions state that a large portion of the NEP population's habitat is 
within U.S. waters, highlighting the importance of U.S. protections for 
the species. The petitions also argue that the NEP population is 
discrete because it ranges internationally into waters with differing 
management regimes, particularly when occupying offshore habitats and 
visiting aggregation sites off Baja California, where it may be subject 
to exploitation by non-U.S. entities. However, the Services' DPS policy 
states that a population may be considered discrete if it is separated 
from other populations by international boundaries within which 
significant differences in regulatory mechanisms exist. That the NEP 
population crosses these international boundaries actually argues 
against considering this population as discrete from other white shark 
populations. Thus, the NEP population is not considered discrete based 
on this factor. Nevertheless, the information available in the 
petitions and in our files provides evidence suggesting the NEP 
population may be discrete based on both genetic and spatial separation 
from other populations.
    Both petitions make the case that the NEP population is significant 
to the taxon. As described above, the NEP population does not appear to 
overlap spatially with other populations (Jorgensen et al., 2010; 
Domeier, 2012; Gubili et al., 2012). The petitions reason that loss of 
this population would result in a significant gap in the range of the 
species because it is unlikely, given the geographic separation of the 
NEP population from other populations, that sharks from other 
populations would expand their distribution into the NEP's current 
habitats. The petitions also state that the NEP population is 
genetically differentiated from other white shark populations, as 
described above. In addition, the Oceana et al. petition contends that 
the NEP population occupies an ecological setting that is unique to 
this species, because they are the only population to occupy coastal 
waters off California and the SOFA. Overall, the information available 
in the petitions and in our files suggests that the NEP population of 
white shark may be significant to the species. The Oceana et al. 
petition also argues that great white sharks play an important 
ecological role that is essential for the health of the NEP ecosystem, 
as a top predator that regulates prey populations (e.g., fish, other 
sharks, and pinnipeds). We do not comment on the merit of this 
statement, but note that in determining whether a discrete population 
segment is significant, the NMFS and USFWS policy focuses on the 
biological and ecological significance of the population segment to the 
taxon, not to the ecosystem.
    Based on the above analysis, we conclude that the information in 
the two petitions and in our files suggests that the NEP population of 
white shark may qualify as a DPS under the discreteness and 
significance requirements.

The Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    Both petitions assert that habitat degradation, largely associated 
with increasing human activity, poses a threat to the NEP population of 
white shark, although the two petitions focus on different sources of 
habitat degradation. The Oceana et al. petition briefly mentions that 
pollutant discharge can degrade coastal aggregation and nursery 
habitats, whereas the WildEarth Guardians petition goes into more 
detail on this potential threat. The WildEarth Guardians petition cites 
urban stormwater runoff and point source discharge as important sources 
of pollutants (e.g., pesticides, fertilizers, trace metals, synthetic 
organic compounds, petroleum, and pathogens) into the Southern 
California Bight (DiGiacomo et al., 2004). The petition states that 
these pollutants threaten predators like white sharks, primarily 
through effects on their prey. For example, historical discharges of 
organochlorines, such as DDT and PCBs, into the Southern California 
Bight have resulted in high levels of these contaminants in local 
populations of pinnipeds (Blasius and Goodmanlowe, 2008), one of the 
prey resources for white sharks. Both petitions cite a recent finding 
that young white sharks sampled off California have high levels of 
mercury, DDT, PCBs, and chlordanes that could result in physiological 
impairment (Mull et al., 2012). The WildEarth Guardians petition 
briefly states that water quality in areas off Mexico where the NEP 
population occurs may also be affected by contaminants (Parks Watch, 
2004).
    The WildEarth Guardians petition also suggests that the 
concentration of marine debris in the North Pacific Gyre (the ``Great 
Pacific Garbage Patch'') may

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have deleterious effects on offshore habitats, including the SOFA. The 
main concern expressed in the petition is the concentration of plastic 
of various sizes in the ``Garbage Patch'' (Algalita, 2009) which could 
be ingested by white sharks in the area either directly or ingested by 
their prey. The petition also suggests that accumulation of persistent 
organic pollutants on the plastic (Algalita, 2009) may pose another 
threat to the health of white sharks. We note, however, that it appears 
to be unclear exactly what the adults (primarily males) are preying on 
in the SOFA (Jorgensen et al., 2010; Domeier, 2012) because the area is 
devoid of the small marine mammals typically preyed upon by adult white 
sharks (Domeier, 2012). Adults in the SOFA may be feeding on squid or 
other species that target squid (Domeier, 2012). Without specific 
information about the extent to which adults in the SOFA are feeding 
and what they are feeding on, it is difficult to evaluate the potential 
effects of plastic marine debris on the NEP population's feeding 
habitat and prey resources.
    The Oceana et al. petition focuses on two sources of habitat 
degradation: (1) Decreased prey resources due to human exploitation; 
and (2) the effects of ocean acidification on the California Current 
ecosystem. The WildEarth Guardians petition briefly mentions that 
fisheries activities in coastal areas may deplete important prey 
resources for the NEP population (CITES, 2004). The Oceana et al. 
petition provides more detail, stating that human exploitation depleted 
populations of pinnipeds, an important prey resource for adult white 
sharks. The petition contends that although pinniped populations are 
currently increasing, they were depleted for a long period of time and 
remain below historical levels. We note that the most recent stock 
assessments estimate that harbor seals may be at carrying capacity 
(NMFS, 2011a) and that northern elephant seals have almost reached 
their carrying capacity for pups per year (NMFS, 2007). Population 
trends have generally been increasing since the 1980s or earlier for 
harbor seals, California sea lions, and northern elephant seals in 
California (NMFS, 2007; 2011a; 2011b). Thus, although these prey 
resources may have been limited in the past when pinniped populations 
were at historical lows, the populations have been increasing over the 
last 30 years or more and may not currently be limiting. For example, 
an increased frequency of observed shark attacks on prey off the South 
Farallon Islands from 1983 to 1993 indicated a potential increase in 
the white shark population at the islands, which may be explained by 
increased recruitment of younger white sharks supported by the increase 
and stabilization of pinniped prey resources over the 1970s and 1980s 
(Pyle et al., 1996). Further analysis is needed to evaluate what effect 
changes in pinniped populations have had on the status of white shark 
populations over time. The petition also states that there have been 
and continue to be major commercial fisheries for most of the other 
prey resources supporting various life stages of white sharks (e.g., 
fish species, crustaceans, cephalopods; Klimley, 1985; Ellis and 
McCosker, 1995). Again, further analysis is needed to specifically 
evaluate the impacts of these fisheries on prey resources for white 
sharks.
    The Oceana et al. petition also contends that the effects of ocean 
acidification could have negative impacts on the marine food web within 
the California Current ecosystem, including on the NEP population of 
white shark. The petition cites a model simulation study which predicts 
that by 2050, the oceanic uptake of increased atmospheric 
CO2 will lower the pH and the saturation state of aragonite 
(a mineral form of calcium carbonate, used by calcifying organisms) in 
nearshore waters of the California Current system to levels well below 
the natural range for this area (Gruber et al., 2012). The petition 
states that these effects of ocean acidification will have negative 
impacts on fish species, referencing recent studies showing that high 
CO2 and low pH levels impair olfactory responses and homing 
ability in clownfish (Munday et al., 2009) and can lead to cardiac 
failure in some fish species (Ishimatsu et al., 2004). The petition 
readily admits, however, that the severity of effects on specific 
species is uncertain. Some fish species may experience metabolic 
responses to elevated CO2 levels at the cellular level, but 
are able to compensate for those responses at the whole animal level, 
making them less sensitive to the effects of ocean acidification 
(Portner, 2008). In addition, extrapolating specific effects at the 
species levels to the overall ecosystem (e.g., effects on prey 
availability and predator-prey interactions for top predators like 
white sharks) is highly uncertain. The petition also states that ocean 
acidification can potentially affect marine mammals and other marine 
life by reducing the sound absorption of seawater and allowing sound to 
travel further (Hester et al., 2008). However, the petition does not 
explain what the potential effects on marine mammals and other marine 
life may be or how any such effects relate to the degradation of white 
shark habitat (e.g., the availability or abundance of prey resources). 
The available information is not sufficient to determine if ocean 
acidification may be threatening the habitat of the NEP population of 
white shark such that listing may be warranted.
    We conclude that the information in the petitions and in our files 
suggests that habitat degradation associated with pollutant discharge 
in the Southern California Bight may be impacting the health of the NEP 
population of white shark. Human exploitation may have impacted prey 
resources (e.g., pinnipeds and fish and invertebrate species) in the 
past; however, further analyses are needed to evaluate the recent and 
current impacts on prey resources. In addition, the information 
provided on the effects of marine debris in the North Pacific Gyre or 
ocean acidification is insufficient to evaluate whether these factors 
may be threatening the habitat of the NEP population of white shark 
such that listing may be warranted.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Information from both petitions suggests that a primary threat to 
the NEP population of white shark is from fisheries. The petitions cite 
information on the effects of fisheries on white sharks worldwide and 
within the NEP. White sharks are harvested in targeted fisheries and as 
bycatch and are highly prized for their teeth, jaws, and fins. White 
sharks are primarily caught incidentally in commercial fisheries using 
longlines, setlines, gillnets, trawls, fish traps, and other gear 
(Compagno, 2001; Fowler et al., 2005; Lowe et al., 2012; Santana-
Morales et al., 2012). The curious nature of white sharks makes them 
more vulnerable to incidental capture, and their high value and 
negative reputation may contribute to the killing of incidentally 
caught individuals rather than being released alive (Fowler et al., 
2005). CITES (2004a) estimated that low to mid hundreds of white sharks 
are killed annually as bycatch within each major region of the species' 
range. Targeted sport and commercial fisheries for white sharks also 
exist worldwide. Targeted sports fisheries may either kill or release 
sharks alive, but post-release mortality is unknown. It is estimated 
that tens to low hundreds of white sharks are killed in sports 
fisheries worldwide each year (CITES, 2004). Targeted commercial 
fisheries for white sharks are thought to be uncommon and opportunistic 
when

[[Page 59587]]

aggregations are found, but the species' site fidelity and tendency to 
aggregate in predictable areas make it vulnerable to over-exploitation 
(CITES, 2004). Targeted commercial fisheries worldwide may also kill 
tens to low hundreds of white sharks each year (CITES, 2004).
    In the NEP Ocean, there is little commercial fishing activity in 
the SOFA, providing a potential refuge from incidental capture for 
individuals when they occupy this offshore area (Domeier, 2012). 
However, the lack of international laws to protect great white sharks 
in international waters is a potential threat to the species (Domeier, 
2012; discussed further under ``Inadequacy of existing regulatory 
mechanisms''). White sharks are most vulnerable to fisheries capture 
when occupying nearshore aggregation or nursery habitats, especially 
YOY and juvenile stages (Domeier, 2012). Off California, there have 
been no directed fisheries for white sharks, but incidental and 
targeted catch has occurred (Lowe et al., 2012). An analysis of 
fishery-dependent catch records for the Southern California Bight from 
1936 to 2009 found that the majority of the reported white shark 
captures (where size was indicated) were of YOY sharks (60 percent), 
followed by juveniles (32 percent) and subadults/adults (8 percent); 
however, the proportion of YOY sharks in the reported catch increased 
to 77 percent after the nearshore gillnet ban was implemented in 1994 
(Lowe et al., 2012). Commercial entangling nets (81 percent) and 
recreational hook-and-line fishing (8 percent) accounted for the 
majority of the reported white shark captures (Lowe et al., 2012). The 
number of reported white shark captures in commercial entangling nets 
has been 20 or less from 1985 through 2009, except in 1985 when 25 
captures were reported (Lowe et al., 2012). The analysis suggests that 
the effects of incidental capture in gillnet fisheries off California 
have decreased compared to historical effects. As gillnet fishing 
effort decreased from the mid-1980s to mid-1990s, so did reports of 
white shark captures (Lowe et al., 2012). However, although gillnet 
fishing effort remained stable or decreased from the mid-1990s through 
2009, reports of white shark captures increased from 2005 through 2009 
(Lowe et al., 2012). Increases in the number of reported captures in 
the gillnet fisheries since 2005, despite stable or decreased effort, 
may be the result of increased reporting of captures and/or an increase 
in the abundance of white sharks due to the nearshore gillnet ban and 
changes in offshore gillnet regulations (Lowe et al., 2012). Also, data 
from the Monterey Bay Aquarium's Juvenile White Shark Tagging Program 
indicate that YOY and juvenile white sharks have relatively high post-
release survival after being caught in gillnet gear (Lowe et al., 
2012).
    Incidental catch of white sharks also continues to occur off Baja 
California. Incidental catch of 111 great white sharks was reported 
from 1999 through 2010, consisting of YOY (79.8 percent) and juvenile 
(20.2 percent) sharks (Santana-Morales et al., 2012). Incidental catch 
primarily occurred in bottom gillnet gear (74.7 percent), but also in 
drift gillnet (18 percent) and artisanal seine net (4.5 percent) gear 
(Santana-Morales et al., 2012).
    The petitions assert that the continued incidental catch of white 
sharks poses a threat to the species, because the removal of just a few 
individuals could have a substantive effect on the local population 
(Pyle et al., 1996; Chapple, 2011). The petitions also highlight the 
high value of white shark teeth, jaws, and fins as trophies, curios, 
and food, stating that this provides a strong monetary incentive to 
capture and keep white sharks (Clarke, 2004; Shivji et al., 2005; 
Clarke et al., 2006).
    We conclude that the petitions and information in our files present 
evidence that fisheries impacts continue to affect white shark 
populations worldwide and in the NEP, primarily due to incidental 
capture in fisheries and the potential for the high value of great 
white shark teeth, jaws, and fins to promote keeping incidentally 
caught individuals rather than releasing them back into the water. This 
information suggests that fisheries impacts may be affecting the 
continued existence of the NEP population of white shark. To further 
evaluate these effects, more information is needed on fisheries impacts 
specifically within the range of the NEP population, particularly on 
the capture of white sharks in fisheries in offshore waters and the 
lethal and sublethal effects of catch and release.

Disease or Predation

    The WildEarth Guardians petition asserts that the addition of 
mercury, organochlorine contaminants, and other pollutants to the ocean 
and the effects of these pollutants on the NEP population of white 
sharks may be categorized as disease. The petition does not provide any 
additional information to support that disease is a factor affecting 
the NEP population's continued existence such that listing may be 
warranted. Thus, the available information is insufficient to evaluate 
if disease may be affecting the continued existence of the NEP 
population of white shark. The petition more appropriately discusses 
pollutants and their effects on the NEP population under the habitat 
degradation and ``other natural or manmade'' factors.

Inadequacy of Existing Regulatory Mechanisms

    The petitions assert that the inadequacy of existing Federal, 
state, or international regulatory mechanisms require that the NEP 
population of white shark be listed under the ESA. The petitions 
contend that although Federal, state, and international regulations 
exist to protect white sharks from targeted capture in some areas, 
these regulations are insufficient because white sharks in the NEP 
population are still vulnerable to incidental capture throughout its 
range, and to exploitation when in international waters. In addition, 
the WildEarth Guardians petition states that existing regulations do 
not protect the NEP population's habitat and health from threats such 
as habitat degradation, pollution, and overfishing of prey resources.
    Within the United States, Federal and state regulations to protect 
white sharks vary. Currently, the retention of white sharks in U.S. 
Federal waters in the Pacific Ocean is prohibited under the Highly 
Migratory Species Fishery Management Plan. In California, targeted 
capture of white sharks is prohibited, but incidentally caught white 
sharks may be retained under a permit from the California Department of 
Fish and Game for scientific or educational purposes (14 CCR Sec.  
28.06). In Oregon, all white sharks must be released immediately if 
caught (ODFW, 2012). Washington and Hawaii do not have specific 
fisheries regulations for white shark. However, both Hawaii and 
California passed bans making it unlawful to possess, sell, offer for 
sale, trade, or distribute shark fins, which may provide some 
protection for white sharks. The petitions argue that despite these 
protections, the continued incidental capture and mortality of even 
small numbers of white sharks in U.S. waters, particularly off 
California, can have a large impact on the local population, citing a 
study off the Farallon Islands in which the removal of four white 
sharks from the area in 1982 resulted in significantly fewer sightings 
of shark attacks on pinnipeds than expected in 1983 to 1985 (Pyle et 
al., 1996). The petitions also suggest that illegal fishing may be a 
problem in the United States, citing cases of illegal

[[Page 59588]]

fishing and sale of white shark teeth, jaws, and fins in 2003 (CITES, 
2004).
    Outside of the United States, protections for white sharks also 
vary. In Mexico, catch and retention of white sharks and the landing of 
shark fins without carcasses has been banned since 2006 (Lack and Sant, 
2011), although incidental capture continues to occur (Galv[aacute]n-
Maga[ntilde]a et al., 2010; Santana-Morales et al., 2012). In Canada, 
there are no specific regulations to protect white sharks, although a 
ban on shark finning may provide some protection (DFO, 2007). In 
international waters, white sharks are protected under CITES (Appendix 
II) and other international agreements, including the Convention on 
Migratory Species (Appendix I and II) and the United Nations Convention 
on the Law of the Sea. However, the petitions contend that these 
protections are not sufficient, given continued trade in white shark 
products due to poaching and variable enforcement of regulations 
(CITES, 2004; Clarke, 2004; Shivji et al., 2005; Clarke et al., 2006; 
Galv[aacute]n-Maga[ntilde]a et al., 2010; Jorgensen et al., 2010; 
Viegas, 2011).
    Based on the information in the petition and in our files as 
discussed above, we conclude that existing regulatory mechanisms may be 
inadequate to address threats to the NEP population of white shark. To 
further evaluate the adequacy of existing regulatory mechanisms, more 
information is needed regarding the level of illegal fishing and 
poaching in U.S. and international waters.

Other Natural or Manmade Factors

    The two petitions assert that other natural or manmade factors may 
be affecting the survival and recovery of the NEP population of white 
shark, including contaminant loads, negative press, life history 
factors, small population size, and the synergistic effects of all of 
the threats facing the population. Both petitions cite a study 
conducted in the Southern California Bight revealing mercury and 
organochlorines (e.g., DDT, PCBs, and chlordanes) in the tissues of 
juvenile white sharks at levels that may result in physiological 
impairment (Mull et al., 2012). Young white sharks are likely 
bioaccumulating these contaminants (likely from historical discharges 
in the Southern California Bight) when feeding on prey resources in the 
area (Blasius and Goodmanlowe, 2008; Mull et al., 2012). The WildEarth 
Guardian petition also cites negative media attention as a threat to 
white sharks, especially when shark attacks on humans occur, because 
this generates general paranoia and encourages targeting of the species 
for sport or trophy hunting (IUCN, 2009).
    The WildEarth Guardians petition asserts that natural factors, 
including the species' life history characteristics and small 
population size, also increase the extinction risk of the NEP 
population of white shark, particularly when considered in combination 
with other threats to the species. The petition states that the 
species' life history characteristics (e.g., slow growth, late 
maturation, long-life, long generation time, small litter size, and low 
reproductive capacity) make it susceptible to extinction when faced 
with population declines and continuing threats (Withgott and Brennan, 
2007). The petition also contends that the small estimated population 
size (e.g., approximately 340 subadults and adults in the NEP 
population; Chapple et al., 2011; Sosa-Nishizaki et al., 2012) makes 
the population highly susceptible to extinction due to a stochastic 
event (Brook et al., 2008). We note, however, that this estimate of 
abundance is based on studies of individuals surveyed in aggregation 
sites off central California and Guadalupe Island, and do not include 
YOY and juveniles. Also, without information on the historical 
abundance of the NEP population, it is difficult to assess what this 
estimated population size means for the persistence of the population. 
The low estimated abundance of the population may be the result of 
anthropogenic pressures on the population or a naturally low carrying 
capacity (the NEP population is thought to have been established by a 
limited number of founders from the ANZ population; Jorgensen et al., 
2010) (Chapple et al., 2011). Catch ratios of white sharks to all shark 
species off the U.S. west coast from 1965 (1:67) to 1983 (1:210) 
suggest a potential decline in abundance (Casey and Pratt, 1985, cited 
in Fowler et al., 2005). However, recent increases in the incidental 
capture of white sharks in gillnet fisheries off California, despite 
stable or decreasing fishing effort, suggest that the population may be 
increasing (Lowe et al., 2012). In addition, an increased frequency of 
observed white shark attacks on pinnipeds off the South Farallon 
Islands over time indicates an increase in the shark population at the 
islands (Pyle et al., 1996; Pyle et al., 2003). Thus, it is difficult 
at this time to determine population trends and to evaluate how the 
estimated size of the NEP population relates to the population's 
extinction risk.
    Overall, the petition and information in our files suggest that 
effects from bioaccumulation of contaminants and negative media 
attention, coupled with the life history characteristics of white 
sharks, may be affecting the survival and recovery of the NEP 
population. More specific information is needed, however, to assess 
population trends and to evaluate the population's estimated abundance 
in terms of the potential effects on the population's survival and 
recovery.

Summary of Section 4(a)(1) Factors

    We conclude that the petition presents substantial scientific or 
commercial information indicating that multiple section 4(a)(1) 
factors, as discussed above, may be causing or contributing to an 
increased risk of extinction for the NEP population of white shark.

Petition Finding

    After reviewing the information contained in both petitions, as 
well as information readily available in our files, we conclude the 
petitions present substantial scientific information indicating the 
petitioned action of listing the NEP population of white shark as a 
threatened or endangered DPS may be warranted. Therefore, in accordance 
with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations 
(50 CFR 424.14(b)(3)), we will commence a status review of the species. 
During the status review, we will determine whether the population 
identified by the petitioners meets the DPS policy's criteria, and if 
so, whether the population is in danger of extinction (endangered) or 
likely to become so within the foreseeable future (threatened) 
throughout all or a significant portion of its range. We now initiate 
this review, and thus, the northeastern Pacific Ocean population of 
white shark is considered to be a candidate species (50 CFR 424.15(b)). 
Within 12 months of the receipt of the WildEarth Guardians petition 
(June 25, 2013), we will make a finding as to whether listing the 
species as endangered or threatened is warranted as required by section 
4(b)(3)(B) of the ESA. If listing the species is warranted, we will 
publish a proposed rule and solicit public comments before developing 
and publishing a final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information relevant 
to whether the NEP Ocean population of white sharks is a DPS and 
whether it is threatened or endangered. Specifically, we are soliciting 
published and unpublished

[[Page 59589]]

information in the following areas: (1) Population structure 
information in the Pacific Ocean, such as genetics data; particularly 
any unpublished information; (2) migratory and behavior patterns in the 
NEP Ocean, particularly any unpublished information; (3) life history 
and ecology, particularly any unpublished information; (4) historical 
and current distribution and abundance of this species throughout the 
NEP Ocean; (5) historical and current population trends in the NEP 
Ocean; (6) historical and current data on commercial and recreational 
fisheries directed at white sharks in the NEP Ocean, including Mexican 
waters; (7) historical and current data on white shark bycatch and 
retention in commercial and recreational fisheries in the NEP Ocean, 
including Mexican waters; (8) data on the trade of white shark 
products, including fins, jaws, and teeth in the NEP Ocean, including 
Mexico; (9) data or other information on encounter rates with white 
sharks through ecotourism operations and sightings data, and long-term 
records of white shark attacks, wounds or scaring of marine mammals; 
(10) adverse impacts related to coastal habitat degradation and the 
health of white sharks, including, but not limited to, impacts related 
to discharge of pollutants, marine debris, or ocean acidification; (11) 
any current or planned activities that may adversely impact the 
species; (12) ongoing or planned efforts to protect and restore the 
species and their habitats; and (12) management, regulatory, and 
enforcement information.
    We also request information on critical habitat for the NEP Ocean 
population of white sharks. Specifically, we request information on the 
physical and biological habitat features that are essential to the 
conservation of the species and identification of habitat areas that 
include these essential physical and biological features. Essential 
features include, but are not limited to: (1) Space for individual and 
population growth and for normal behavior; (2) food, water, air, light, 
minerals, or other nutritional or physiological requirements; (3) cover 
or shelter; (4) sites for reproduction and development of offspring; 
and (5) habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of the species (50 CFR 424.12). For habitat areas 
potentially qualifying as critical habitat, we request information 
describing: (1) The activities that affect the habitat areas or could 
be affected by the designation; and (2) the economic impacts, impacts 
to national security, or other relevant impacts of additional 
requirements of management measures likely to result from the 
designation.
    We request that all information be accompanied by: (1) Supporting 
documentation such as maps, raw data with associated documentation, 
bibliographic references, or reprints of pertinent publications; and 
(2) the submitter's name, mailing address, email address, and any 
association, institution, or business that the person represents.

References Cited

    A complete list of references is available upon request from the 
NMFS Southwest Regional Office (see ADDRESSES).

Authority

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

    Dated: September 25, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2012-23963 Filed 9-27-12; 8:45 am]
BILLING CODE 3510-22-P