[Federal Register Volume 78, Number 96 (Friday, May 17, 2013)]
[Proposed Rules]
[Pages 29100-29110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11862]
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DEPARTMENT OF COMMERCE
National Ocean and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 130214141-3141-01]
RIN 0648-XC515
Endangered and Threatened Wildlife; 90-Day Finding on Petitions
To List the Dusky 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 petitions to list the
dusky shark (Carcharhinus obscurus) range-wide or, in the alternative,
the Northwest Atlantic and Gulf of Mexico population of the dusky shark
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 present
substantial scientific or commercial information indicating that the
petitioned action may be warranted for the Northwest Atlantic and Gulf
of Mexico population of dusky shark; we find that the petitions fail to
present substantial scientific or commercial information indicating
that the petitioned action may be warranted for the dusky shark range-
wide. Therefore, we will conduct a status review of the Northwest
Atlantic and Gulf of Mexico population of dusky shark 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 petitioned species from any interested party.
DATES: Information and comments on the subject action must be received
by July 16, 2013.
ADDRESSES: You may submit comments, information, or data on this
document, identified by the code NOAA-NMFS-2013-0045, by any of the
following methods:
Electronic Submissions: Submit all electronic comments via
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0045, click the ``Comment Now!'' icon,
[[Page 29101]]
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Fax: 301-713-4060, Attn: Maggie Miller.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous), although submitting comments anonymously will prevent NMFS
from contacting you if NMFS has difficulty retrieving your submission.
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of
Protected Resources, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
On November 14, 2012, we received a petition from WildEarth
Guardians (WEG) to list the dusky shark (Carcharhinus obscurus) as
threatened or endangered under the ESA throughout its entire range, or,
as an alternative, to list the Northwest Atlantic/Gulf of Mexico DPS as
threatened or endangered. The petitioners also requested that critical
habitat be designated for the dusky shark under the ESA. On February 1,
2013, we received a petition from Natural Resources Defense Council
(NRDC) to list the northwest Atlantic DPS of dusky shark as threatened,
or, as an alternative, to list the dusky shark range-wide as
threatened, and a request that critical habitat be designated. The
joint USFWS/NMFS petition management handbook states that if we receive
two equivalent petitions for the same species and a 90-day finding has
not yet been made on the earlier petition, then the later petition will
be combined with the earlier petition and a combined 90-day finding
will be prepared. Given that, this 90-day finding will address both the
WEG and NRDC petitions for dusky shark. 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 review with a
finding as to whether, in fact, 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 more thorough review of the available
information, as compared to the narrow 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 subspecies and, for any vertebrate species,
any DPS that 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 vertebrate species under the ESA (61 FR 4722; February
7, 1996) (``DPS Policy''). A species 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 (ESA sections 3(6) and 3(20), respectively, 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 five section 4(a)(1) factors: (1) The
present or threatened destruction, modification, or curtailment of
habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4)
inadequacy of existing regulatory mechanisms; and (5) any other natural
or manmade factors affecting the species' existence (16 U.S.C.
1533(a)(1), 50 CFR 424.11(c)). In evaluating whether a population
constitutes a significant portion of the species' range, we consider
the portion of the range to be significant if its contribution to the
overall viability of the species is so important that, without it, the
species may be in danger of extinction. These considerations are
consistent with interpretations and principles in the NMFS and USFWS
Draft Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species,'' which we consider as nonbinding
guidance in making listing determinations until a final policy is
published. In the draft policy, the Services explain that this
definition of ``significant'' for the purpose of analyzing whether a
population constitutes a significant portion of a species range differs
from the definition of ``significant'' defined in the Services' DPS
Policy and used for DPS analysis (76 FR 76987; December 9, 2011).
ESA-implementing regulations issued jointly by NMFS and USFWS (50
CFR 424.14(b)) 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. In
evaluating whether substantial information is contained in a petition,
the Secretary must consider whether the petition: (1) Clearly indicates
the administrative measure recommended 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-
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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 that indicates that 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 that it supports the
petitioners' assertions. In other words, conclusive information
indicating that 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 alone negates a positive 90-day
finding if a reasonable person would conclude that the unknown
information itself 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 that the subject species may be
either threatened or endangered, as defined by the ESA. First, if the
petition requests listing of a subspecies or a DPS, 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, pursuant
to the DPS Policy. Next, we evaluate whether the information indicates
that the species faces an extinction risk that is cause for concern
throughout all or a significant portion of its range; 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 may 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 Dusky Shark
The dusky shark is part of the Carcharhinidae family. It is a
coastal-pelagic species that inhabits warm temperate and tropical
waters (FAO, 2012). It has a global but patchy distribution, with its
range-wide occurrence poorly known. In the Northwest Atlantic, dusky
sharks can be found from southern Massachusetts and Georges Bank to
Florida, the Bahamas, Cuba, and the northern Gulf of Mexico (NMFS,
2011a). Dusky shark distribution off Central America is not well known
(NMFS, 2011a). In the Eastern Pacific, the species is thought to occur
off the coast of southern California to the Gulf of California,
Revillagigedo Islands, and possibly Chile (NOAA, 1998; Musick et al.,
2007). The species can also be found off the coasts of Australia,
Nicaragua, and southern Brazil (NMFS, 2011a). According to Dudley et
al. (2005), the shark's distribution in the western Indian Ocean
extends from the Red Sea to the southern tip of Africa and off the
coast of Madagascar. The species is also thought to be found in the
Mediterranean Sea, and off the coasts and continental shelves of Japan,
China, Vietnam, New Caledonia, and North Africa, possibly around
oceanic islands off western Africa (Musick et al., 2007; NMFS, 2011a).
The dusky shark is a highly migratory species that occurs in both
inshore (surf zone) and offshore waters, from the surface to depths as
deep as 1,883 feet (574 m) (NOAA, 1998; Hoffmayer et al., 2010; NMFS,
2011a). The shark avoids areas of lower salinity and is rarely found in
estuarine environments (NOAA, 1998; SEDAR, 2011). Along the U.S.
coasts, the dusky shark undertakes long temperature-related migrations,
moving north in the summer as waters warm and retreating south in the
fall as water temperatures drop (NMFS, 2011a). Seasonal migrations have
also been documented off South Africa (NOAA, 1998). In western
Australia, both adolescents and adults move inshore during the summer
and fall, with neonates occupying separate inshore areas (NOAA, 1998).
The general life history pattern of the dusky shark is that of a
long lived (oldest known female shark aged at 39 years), slow growing,
and late maturing species (SEDAR, 2011). The dusky shark is a large,
fairly slender shark, with an average total length (TL) of around 11.8
feet (360 cm) and weight of 400 pounds (180 kg) (NMFS, 2011a).
Northwest Atlantic and Gulf of Mexico dusky males attain sexual
maturity at around 280 cm TL, or 19 years, and females reach sexual
maturity at 284 cm TL, or 21 years (NOAA, 1998; NMFS, 2011a). Similar
maturity sizes have been observed for dusky sharks from South
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Africa and Australia (NOAA, 1998). The dusky shark is viviparous (i.e.,
gives birth to live young), with a gestation period of around 18 months
and a triennial reproductive cycle (SEDAR, 2011). Litter sizes range
between 3 and 14 pups (NMFS, 2011a; SEDAR, 2011) with the pupping
months for the Northwest Atlantic and Gulf of Mexico dusky population
occurring from May to June. Young are born at sizes of 33 to 39 inches
(85--100 cm) (NMFS, 2011a).
The shark has a rounded snout that is shorter than or equal to the
width of its mouth and a low ridge along its back between its dorsal
fins (NMFS, 2011a). The dorsal fin originates over or near the free
rear tips of moderately large pectoral fins, and the second dorsal fin
has a free tip length that is usually not more than twice its fin
height (NMFS, 2011a; FLMNH, undated). The dusky shark is colored bronzy
gray to blue gray above and white ventrally, and is also known as the
bronze whaler or black whaler (NMFS, 2011a). It is a high trophic level
predator (Cort[eacute]s, 1999) with a diet that includes a wide variety
of bony and cartilaginous fishes and squid (NOAA, 1998). In the Indian
Ocean, young dusky sharks have been observed feeding in large
aggregations (NOAA, 1998).
With respect to ESA listing actions, we added the dusky shark to
our candidate species list in 1997 (62 FR 37560; July 14, 1997), but
subsequently transferred the Northwest Atlantic and Gulf of Mexico
population to our Species of Concern List in 2004 (69 FR 19975; April
15, 2004). There is no mandatory Federal protection for candidate
species or species of concern, but voluntary protection is urged.
Analysis of Petition and Information Readily Available in NMFS Files
We evaluated the information provided in the petitions and readily
available in our files to determine if the petitions presented
substantial scientific or commercial information indicating that the
petitioned actions may be warranted. The petitions contain information
on the species, including the taxonomy, species description, geographic
distribution, habitat, some population status and trends, and factors
contributing to the species' decline. According to the WEG petition, at
least four of the five causal factors in section 4(a)(1) of the ESA are
adversely affecting the continued existence of the dusky shark,
specifically: (A) Present and threatened destruction, modification, and
curtailment of habitat and range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (D) inadequacy of
existing regulatory mechanisms; and (E) other natural or manmade
factors affecting its continued existence. The focus of the NRDC
petition is mainly on the northwest Atlantic population and identified
the threats of: (B) overutilization for commercial, recreational,
scientific, or educational purposes; (D) inadequacy of existing
regulatory mechanisms; and (E) other natural or manmade factors
affecting its continued existence. In the following sections, we use
the information presented in the petitions and in our files to
determine whether the petitioned action may be warranted. We consider
both the information presented for the global population of dusky
sharks (as provided primarily in the WEG petition) as well as the
information presented for the Northwest Atlantic and Gulf of Mexico
population (provided in both petitions) on the specific ESA section
4(a)(1) factors affecting the species' risk of extinction. We provide
separate analyses and conclusions regarding the information presented
by the petitioners and in our files for the global and for the
Northwest Atlantic and Gulf of Mexico populations since we were
petitioned to list either the global population (range-wide) or the
Northwest Atlantic and Gulf of Mexico population.
Qualification of Northwest Atlantic and Gulf of Mexico Population as a
DPS
Both petitions assert that the Northwest Atlantic and Gulf of
Mexico population (henceforth referred to as ``NW Atlantic
population'') of dusky shark qualifies as a DPS because it is both a
discrete and significant population segment of the species as defined
in the DPS Policy. The NRDC petition states that the NW Atlantic
population is discrete based on both genetic and spatial separation
from other populations of dusky sharks. Genetic analyses indicate that
the NW Atlantic population of dusky sharks is genetically
differentiated from other populations of dusky sharks (Benavides et
al., 2011; Gray et al., 2012). Results from both nuclear microsatellite
DNA and mitochondrial control region analyses showed significant
genetic differentiation between the western North Atlantic, South
African, and Australian dusky shark populations, with a low frequency
of migration between these populations (Benavides et al., 2011; Gray et
al., 2012). Analysis of mitochondrial control regions also indicate
that dusky sharks off the U.S. East Coast and in the Gulf of Mexico are
not genetically distinct (Benavides et al., 2011), with tagging data
that show a high frequency of movements between these two basins
(SEDAR, 2011). Furthermore, Benavides et al. (2011) provides
preliminary evidence of population structure between the NW Atlantic
population and the dusky sharks in the Southwest Atlantic (off Brazil),
suggesting that the NW Atlantic population, if it were depleted, would
not likely be replenished by immigrant females from the Southwest
Atlantic population.
In addition to genetic separation, the NRDC contends that the NW
Atlantic population is geographically separated from other populations.
NRDC indicates that the NW Atlantic population primarily inhabits U.S.
waters, and as such is delimited by 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.
Both petitions make the case that the NW Atlantic population is
significant to the taxon. As described above, the NW Atlantic
population appears to be genetically distinct and geographically
separate from other dusky shark populations, with evidence of little
mixing between neighboring populations (Benavides et al., 2011; Gray et
al., 2012). Thus, the petitions reason that loss of this population
would result in a significant gap in the range of the species because
it is unlikely to be repopulated by sharks from other populations.
Overall, based on the above analysis, we conclude that the
information in the two petitions and in our files suggests that the NW
Atlantic population of dusky shark may qualify as a DPS under the
discreteness and significance criteria of the DPS Policy. We will
explore this designation further and conduct a formal DPS analysis
during the status review.
Qualification of the Northwest Atlantic and Gulf of Mexico as a
Significant Portion of the Range (SPOIR)
The NRDC petition specifically requests that we list the dusky
shark as threatened because the species is likely to become endangered
in a significant portion of its range (specifically throughout the
habitat of the Northwest Atlantic, including the Gulf of Mexico). The
WEG petition makes a similar statement: ``The Gulf of Mexico comprises
a significant portion of the dusky shark's range'' and focuses part of
its threats analysis on this portion. However, we conclude that neither
petition presented substantial information, nor is there information in
our files, to indicate that the Northwest
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Atlantic and Gulf of Mexico is a significant portion of the dusky
shark's range. In making this assessment we considered a portion of the
range to be significant if its contribution to the overall viability of
the dusky shark was so important that, without it, the dusky shark
would be in danger of extinction. These considerations are consistent
with interpretations and principles in the NMFS and USFWS Draft Policy
on Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species,'' which we consider as nonbinding guidance in
making listing determinations until a final policy is published (76 FR
76987; December 9, 2011).
As requested by the NRDC, we considered whether the loss of the
northwest Atlantic portion would be expected to increase the entire
species' vulnerability to extinction to the point where the global
population of dusky sharks would be in danger of extinction. However,
neither petition provides substantial evidence that the global
population may be at risk of extinction from the loss of the Northwest
Atlantic portion, nor do we have information that would support this in
our files. The WEG petition presents information on threats to the
global population, whereas the NRDC petition does not; however, neither
petition presents information about the dependence of the global
population on the Northwest Atlantic portion for survival. Therefore,
we conclude that the petitions do not provide substantial evidence that
the Northwest Atlantic may qualify as a significant portion of the
dusky shark's range or that listing of the global population of shark
may be warranted because the population is threatened or endangered in
a significant portion of its range.
Our analysis below considers the application of the ESA section
4(a)(1) factors to the Northwest Atlantic population in determining
whether the WEG and NRDC petitions present substantial information
indicating that listing the Northwest Atlantic population may be
warranted. In addition, we consider the application of the ESA section
4(a)(1) factors to the global population in determining whether the WEG
petition presents substantial information indicating that listing the
global population may be warranted.
Factor A: Present and Threatened Destruction, Modification, or
Curtailment of Habitat or Range
NW Atlantic Population Analysis
The WEG petition identifies the 2010 Deepwater Horizon oil spill as
an event that has degraded the marine environment used by the NW
Atlantic population of dusky sharks, but does not provide any
information on how the effects of the spill contribute to the
extinction risk of the species. It cites a National Geographic Daily
News article (Handwerk, 2010) that discusses the potential negative
impacts of the spill on whale sharks, a large, filter-feeding species.
When feeding, the whale shark swims with its mouth open, filtering over
100,000 gallons of water an hour, capturing prey and passing the water
through its gills (Handwerk, 2010). Due to this type of feeding
behavior, scientists believe that the oil from the spill may have had
lethal impacts to the whale sharks (Handwerk, 2010). Specifically, the
article mentions sightings of whale sharks that were unable to avoid
the oil slick, and suggests that the oil may have clogged the sharks'
gills, suffocating them, or contaminated their prey; however, there
have been no reports of dead whale sharks (Handwerk, 2010). The article
does not mention the dusky shark or its exposure to the oil. The dusky
shark is not a filter-feeder, and thus the effects of the oil spill on
the whale shark do not provide information on the effects of the spill
on the dusky shark. In addition, the WEG petition does not provide any
information on how the oil has affected the dusky sharks' extinction
risk, but mentions that researchers are currently studying the fatal
and non-fatal impacts of the oil spill on the species. The petition
does note that apex predators can bioaccumulate toxic chemicals that
they ingest from their prey, but does not provide information on the
amount of toxic substances from prey that the global population or the
NW Atlantic population is absorbing, or how much this threat is a cause
for concern in relation to extinction risk.
The WEG petition notes that the oil ``has degraded sea grass
habitat south of Chandeleur Island a known nursery for a number of
shark species'' but does not identify if this location is a known
nursery ground for the dusky shark. Neither the reference (CBD,
undated) nor information in our files (NMFS, 2009) indicates that this
is a nursery area for dusky sharks.
Global Population Analysis
In terms of other threats to the habitat of the global population
of dusky sharks, the WEG petition cites a general statement about the
rate of development in the United States and abroad, and the resultant
destructive impact on coastal habitat (Camhi et al., 1998), but does
not provide any details on how this development is destroying specific
dusky shark habitat or contributing to its extinction risk. Broad
statements about generalized threats to the species do not constitute
substantial information indicating that listing under the ESA may be
warranted.
Factor A Conclusion
We conclude that the information presented in the WEG petition on
threats from the modification of habitat does not provide substantial
information indicating that listing is warranted for the global
population or NW Atlantic population. However, we acknowledge that
although there is no specific information at this time on the effects
of the oil spill on the NW Atlantic population, the petition did
reference a study (Hueter and Gelsleichter, 2010) that is currently
looking at the sub-lethal impacts of oil exposure, with dusky sharks
listed as a target species. We may re-examine this factor as new
information becomes available. The NRDC petition did not identify
habitat modification or destruction as a threat to the NW Atlantic
population.
Factor B: Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
NW Atlantic Population Analysis
The WEG petition presents information on threats from commercial
and recreational overexploitation for the global population and the NW
Atlantic population separately. However, in discussing the ``domestic''
commercial and recreational exploitation of the global population, the
petition focuses entirely on information concerning the NW Atlantic
population. In this section, the petition states ``The dusky shark is
subject to overfishing domestically . . . throughout its range,
including in the NWA/GOM [NW Atlantic] and Pacific'' and references the
latest Southeast Data, Assessment, and Review (SEDAR) stock assessment
report for the dusky shark (henceforth referred to as ``SEDAR 21'')
(SEDAR, 2011). However, this statement is incorrect, as SEDAR 21 did
not examine the status of the entire dusky shark population or the
Pacific population of dusky sharks, only the Northwest Atlantic and
Gulf of Mexico stock.
Information from the petitions suggests that the primary threat to
the
[[Page 29105]]
NW Atlantic population is from fishing pressure by commercial and
recreational fisheries. Dusky sharks off the U.S. East Coast have been
a prohibited species in U.S. Atlantic Highly Migratory Species (HMS)
fisheries since 2000 (NMFS, 1999), meaning that neither U.S. commercial
nor recreational fishers are allowed to legally land this species.
However, according to the results from SEDAR 21, the stock is still
overfished with overfishing occurring. This suggests that the species
continues to be caught as bycatch in pelagic and bottom longline
fisheries and/or is misidentified by recreational and commercial
fishers and seafood dealers, with other sharks recorded as dusky shark
in landings, log books and dealer reports (Cort[eacute]s et al., 2006;
NMFS, 2012a). Historically, the fishing mortality of this population
was estimated to be low from 1960 through the early 1980s, but was
thought to have increased to unsustainably high levels in the 1990s,
before declining following the prohibition of dusky landings in 2000
(SEDAR, 2011). In the 2006 stock assessment for the Northwest Atlantic
and Gulf of Mexico dusky shark population, it was estimated that the
stock (in 2004) had suffered significant declines from its virgin
population size (in 1960) (Cort[eacute]s et al., 2006). Three forms of
Bayesian surplus production models predicted depletions of over 80
percent, an age-structured production model estimated a decline of 62-
80 percent, and a catch-free age-structure production model estimated a
decrease in the spawning stock biomass (SSB) of 92-93 percent
(Cort[eacute]s et al., 2006; SEDAR, 2011). The stock assessment also
found statistically significant decreasing trends in the average weight
of the catch, suggesting that the majority of dusky sharks being caught
were immature and that the stock was heavily exploited (Cort[eacute]s
et al., 2006). Given the historically heavy fishing on this population,
and its low productivity and hence high vulnerability to exploitation,
the stock assessment projected that the Northwest Atlantic and Gulf of
Mexico population required 100 to 400 years to rebuild (Cort[eacute]s
et al., 2006; SEDAR, 2011). Based on these results, NMFS declared the
dusky shark stock in the Northwest Atlantic and Gulf of Mexico to be
overfished with overfishing occurring (71 FR 65087; November 7, 2006)
and established a rebuilding plan in July 2008. In 2011, the status of
the Northwest Atlantic and Gulf of Mexico stock was re-evaluated
through the SEDAR process (76 FR 62331; October 7, 2011), with results
that indicate this dusky shark population is still overfished and
continues to experience overfishing, even though harvest of the species
is prohibited (SEDAR, 2011).
The NRDC petition contends that although SEDAR 21 determined that
the stock is experiencing overfishing, the current fishing mortality
(F) values calculated by SEDAR 21 are underestimations and therefore
``the percent reduction needed to end overfishing (a 36 percent
reduction) as well as rebuild the fishery (62 percent) are
underestimated.'' SEDAR 21 selected a range of 44.2--65 percent as the
discard mortality for dusky sharks caught by bottom longline (BLL) gear
(SEDAR, 2011). The petition states that these estimates ``represent
average values across age classes and are substantially lower than
capture mortality rates of juvenile dusky sharks, a major source of
bycatch'' and references Morgan and Burgess (2007) and Romine et al.
(2009). These two papers present at-vessel mortality rates for
different age groups of dusky sharks on BLL gear. Morgan and Burgess
(2007) estimated an 87.7 percent mortality rate for young dusky sharks
(0-100 cm fork length, FL) and an 82.4 percent mortality rate for
juveniles (101-231 cm FL). Romine et al. (2009) estimated mortality
rates that ranged between 69 and 79 percent for dusky sharks < 230 cm
FL. These higher rates may suggest that juveniles are more susceptible
to at-vessel mortality on BLL gear than previously assumed, with
subsequent discards perhaps underestimated in SEDAR 21.
Furthermore, the NRDC petition references the SEDAR 21 results that
show additional declines (relative to the virgin (1960) population) in
biomass and SSB between the 2006 and 2011 assessments (SEDAR, 2011).
SEDAR 21 suggested that the declines in SSB can be attributed to
decreasing numbers of older, heavier, sharks, but is partially
compensated for by increases in pup survival (i.e., density dependent
recruitment) as the abundance of dusky sharks (in numbers) has
increased from 2004 to 2009 (SEDAR, 2011). However, the petition
contends that the ``significant impacts of continuing fishing
pressures--and fishing-related mortality--on juvenile dusky sharks''
and their late age at sexual maturity (hence, the long time needed to
survive before reproducing) makes this scenario unlikely unless current
fishing mortality is reduced.
The NRDC petition also provides information on bycatch of NW
Atlantic dusky sharks in U.S. commercial fisheries, and references NMFS
U.S. National Bycatch Report for data in 2005 and 2006 (NMFS, 2011).
The report estimates that 2,739 sharks were caught as bycatch on reef
fish handline and BLL gear, and 570,896 live pounds (lbs) (258,954 kg)
in the shark BLL fishery, but notes that the shark BLL estimates are
currently being reviewed. In addition, the petition states that the
recreational fishery has accounted for around 47 percent of the total
catch of dusky sharks (from 2001-2009) even though harvest of this
species has been prohibited since 2001. Although total catch has
decreased substantially since before the ban (by around 85 percent),
dusky sharks are still being caught in both the recreational and
commercial fisheries, and under the current fishing mortality rate, the
stock has only an 11 percent probability of recovery by 2480 (400
years) (SEDAR, 2011; NMFS, 2012a).
The fishery management terms ``overfishing'' and ``overfished,''
and targets such as ``rebuilding'' and ``recovery,'' are defined under
the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and
are based on different criteria than threatened or endangered statuses
under the ESA. As such, they do not necessarily indicate that a species
may warrant listing under the ESA because they do not necessarily have
any relationship to a species' extinction risk. Overutilization under
the ESA means that a species has been or is being harvested at levels
that pose a risk of extinction. In other words, the species is being
harvested faster than it can replace itself. Since 1960 (assumed pre-
fishing levels), the dusky shark biomass and SSB have declined by
approximately 80 and 85 percent, respectively, and, as the petition
notes, dusky sharks are inherently vulnerable to overexploitation due
to their life history characteristics, with a ``very low natural
intrinsic rate of population increase, one of the lowest intrinsic
rebound potentials and lowest productivities of all sharks.'' Given
this biological vulnerability (Cort[eacute]s et al., 2012), the
significant population decline, and the fact that this population is
still experiencing fishing pressure from both commercial and
recreational fishers with no change in its status despite fishing
prohibitions, overutilization by commercial and/or recreational
fisheries may present a threat that warrants further exploration to see
if it is contributing to the Northwest Atlantic population's risk of
extinction that is cause for concern.
[[Page 29106]]
Factor B Conclusion for NW Atlantic Population
We conclude that the information presented in the petitions and
information from our files indicates that the petitioned action to list
the NW Atlantic population may be warranted due to threats from
overutilization by commercial and/or recreational fisheries.
Global Population Analysis
In terms of threats of overexploitation on the global population,
the petitions reference the international shark fin trade as
contributing to the decline of the dusky shark. The WEG petition cites
Musick et al. (2007) when it states that the dusky shark represents at
least 1.2--1.7 percent of the fins auctioned in Hong Kong, the world's
largest fin trading center. However, in the original study that
produced those estimates (Clarke et al., 2006a), the authors noted that
the dusky shark had the ``least reliable results'' (referring to the
above percentage proportions in the Hong Kong fin market) because the
genetic primer used to identify shark fin species did not differentiate
between dusky and Galapagos sharks (Clarke et al., 2006a). Thus, the
authors caution that the percentage estimates of 1.2 to 1.7 ``most
likely overestimates this species' proportion in the trade'' (Clarke et
al., 2006a). In addition, the WEG petition incorrectly cites Musick et
al. (2007) claiming that ``between 144,000 and 767,000 dusky sharks are
represented in the shark fin trade each year or, in biomass, 6,000 to
30,000 million tons.'' The biomass numbers are in metric tons, not
million tons (i.e., 6,000 mt to 30,000 mt) (Musick et al. 2007; Clarke
et al., 2006b); however, the petitions do not provide substantial
evidence to indicate how these numbers relate to the global population
size or data to indicate that the global population is in decline.
Because dusky sharks have large fins with high fin needle content
(a gelatinous product used to make shark fin soup), they fetch a high
commercial price in the Asian shark fin trade (Clarke et al., 2006a)
and thus are more likely to be kept when incidentally caught (Musick et
al., 2007). Again, the petitions do not provide information on how the
abundance and biomass of dusky sharks that are removed for the shark
fin trade compare to global population numbers or biomass of dusky
sharks, or how it subsequently translates to extinction risk. The WEG
petition asserts that ``studies suggest the dusky shark globally
suffered a 64 92 percent decline in virgin biomass by 2004'' but
references SEDAR 21, which only calculated declines for the Northwest
Atlantic and Gulf of Mexico population, not the global population
(SEDAR, 2011). The petition provides no information regarding the
notion that equivalent declines are found elsewhere throughout the
dusky shark range.
For information on dusky shark abundance elsewhere in the world
(i.e., not the NW Atlantic population), the WEG petition acknowledges
that there are little available data. It provides information on
fisheries that may land dusky sharks and the types of fishing gear
used, but does not provide information on the status of these
populations or any past or present numbers of the species in these
areas. The WEG petition notes that in the Southwest Atlantic there are
``little population data'' but that the shark is taken both directly
and indirectly by pelagic longline (PLL) and artisanal fisheries
operating in these waters. However, the petition does not provide any
data, such as catch or landings data, to show how these fisheries are
threats to the dusky shark global population or how they contribute to
its extinction risk, nor do we have that information in our files. The
WEG petition states that in the Mediterranean, again, that there are
``little data available on population trends'' with the IUCN deeming
the population ``data deficient.'' Although the petition states that
``Nevertheless, there are numerous accounts of dusky sharks taken as
both target and bycatch along the North African and Sicilian coasts . .
. unsustainably,'' the reference the WEG uses to support this statement
actually states that the species is not frequently caught in this area
(``caught sporadically in . . . fisheries, principally off North Africa
and rather less frequently by [other fisheries] in the Sicilian Channel
. . . and rarely observed on fishmarkets in the Mediterranean'')
(Musick et al., 2007). Neither the petition, nor its reference,
provides any information on catch numbers or evidence that take of
dusky sharks is unsustainable or cause for concern.
For the population found off the Australian coast, the WEG petition
states that ``Fisheries in Australian . . . waters have historically
exploited dusky shark recreationally and continue to do so'' and
mentions the use of demersal gillnets to target neonates and dusky
sharks less than 3 years of age, capturing ``18-28 percent of the
population in its first year.'' The reference for these statements is
Musick et al. (2007) which provides information from a stock assessment
(Simpfendorfer, 1999) and also cites McAuley et al. (2005) as a second
assessment of the dusky shark population found off southwestern
Australia. We could not verify the publication title of the McAuley et
al. (2005) citation because the bibliography for the Musick et al.
(2007) publication was not included by the petitioner, nor is this full
reference included in the bibliography for the Musick et al. (2009)
publication (which appears to be an updated version of the Musick et
al. (2007) publication). We consider the second assessment for the
dusky shark population found off southwestern Australia to be the
McAuley et al. (2007) publication, which was also cited by the
petitioner. It should also be noted that the fishery described by
Musick et al. (2007) as using demersal gillnets is a commercial
fishery, not a recreational fishery.
According to the stock assessments, neonate and juvenile C.
obscurus have been the primary targets of the demersal gillnet fishery
operating off southwestern Australia since the 1970s (Simpfendorfer,
1999; McAuley et al., 2007). Due to the selectivity of the gillnet mesh
sizes used in the fishery, very few dusky sharks older than 4 years are
caught (Simpfendorfer, 1999), but these older individuals are also
largely immune to exploitation because their distribution tends to be
outside of the fishery's operational area (McAuley et al., 2007).
Historically, catches of dusky sharks in this fishery grew from under
100 mt per year in the late 1970s to just under 600 mt in 1998/1999
before fishery management restrictions reduced and stabilized the catch
at around 300 mt per year (McAuley et al., 2007).
Both assessments used demographic models to estimate the impacts of
fishing mortality on the shark stock, and specifically examined the
1994 and 1995 cohorts. According to the Simpfendorfer (1999)
assessment, the rates of fishing mortality experienced by the 1994 and
1995 cohorts were sustainable. In fact, Simpfendorfer (1999) estimated
that up to 4.3 percent of each class could be sustainably harvested
each year, or, in presenting a scenario of unequal exploitation
distribution, estimated that up to 64.6 percent of the youngest age-
class could be removed without decreasing the population, as long as no
other age-class was harvested. McAuley et al. (2007) presented an
update to this assessment using revised biological parameters and age-
specific rates of fishing mortality. Results from McAuley et al. (2007)
confirm the sustainability of the rates of fishing mortality
experienced by the 1994 and 1995 dusky shark cohorts, but suggest that
the 4.3 percent exploitation may be overly optimistic for older dusky
[[Page 29107]]
sharks. Instead, the assessment found that exploitation above 1 percent
per year on dusky sharks older than 10 years had a 55 percent
probability of resulting in a decline in the stock (McAuley et al.,
2007). As such, the authors attribute the declining trend in catch
rates in the target demersal gillnet fishery to the unquantified, yet
probable, harvest of older sharks outside of the fishery, resulting in
fewer breeders and thus fewer recruits to the population.
However, in 2006, the Western Australian Government implemented a
number of fishery management restrictions for its commercial fisheries,
with the purpose of reducing mortality, particularly of dusky and
sandbar sharks, and achieving dusky shark target biomass levels of 40
percent of the virgin biomass by 2040 (Musick et al., 2007; Musick et
al., 2009). One of these measures involved setting a maximum size limit
for dusky sharks (Musick et al., 2007; Musick et al., 2009), thereby
protecting the stock breeding biomass from being harvested by fisheries
outside of the demersal gillnet fishery. According to the reference
cited by the petitioner, ``These management measures should arrest
further declines'' and encourages continued monitoring of the stock
(Musick et al., 2007). Thus, given the results of the stock assessments
that show sustainable fishing mortality on the heavily targeted dusky
neonates, and current regulations that arrest the harvest of the more
sensitive older shark population, we do not find evidence that suggests
overutilization of the dusky shark population off western Australia is
a threat to the existence of the global dusky shark population.
In the Indian Ocean, the WEG petition states that the dusky shark
is mainly taken as bycatch in PLL tuna fisheries gear, but also by
small commercial fisheries and recreational long-line and gillnet
fishing. It also states that beach meshing is used to catch juveniles
and adolescents. It does not provide details on any past or present
numbers in this region; however, it references a study by Dudley et al.
(2005), which analyzed catch rate and size frequency of dusky sharks
caught in protective beach nets off the coast of South Africa. The
results from this study showed no significant linear trend in catch
rate over the period of 1978 to 1999 (Dudley et al., 2005). The authors
of the study also mentioned that group catches of dusky sharks usually
coincided with the annual ``sardine run,'' with size and catch
distribution influenced by the attempts to remove the nets before the
influx of sardine shoals (Dudley et al., 2005; Musick et al., 2007). In
a follow-up study that looked at more recent years of catch per unit
effort (CPUE) information (extending the dataset from 1978 to 2003),
the authors came to the same conclusion: the dusky shark did not show
any indications of population decline, the CPUE trend was stable
(Dudley and Simpfendorfer, 2006).
In terms of other types of indirect catch of the global population
of dusky sharks, the WEG petition makes generalized statements about
sharks comprising a high percentage of non-target bycatch in commercial
fisheries targeting swordfish and tuna in the Southwest Atlantic.
However, the petition does not provide this percentage, nor does it or
the reference used as support (Mandelman et al., 2008), provide
information on how much of this bycatch in the Southwest Atlantic can
be attributed to dusky sharks. In fact, the reference only examines
historical catches of the Northwest Atlantic and Gulf of Mexico dusky
shark population, excluding catch records from the Caribbean and areas
farther south (Mandelman et al., 2008). The WEG petition then proceeds
to list countries that operate PLL vessels in the South Atlantic and
mentions different types of fisheries operating in the Mediterranean
and Indian Ocean that may also catch dusky sharks as bycatch. However,
it fails to provide any information on the actual catch numbers, catch
or population trends, past or present numbers of dusky sharks in this
region, or information on how these fisheries contribute to the
extinction risk of the global population of dusky sharks. The WEG
petition also provides a figure of the distribution of hooks deployed
by all International Commission for the Conservation of Atlantic Tunas
(ICCAT) parties from 2000-2006 but does not explain the relevance of
the figure in relation to dusky shark catches or overutilization of the
global dusky shark population.
For recreational catch, the WEG petition follows the same pattern
of describing the type of fishing gear used to catch dusky sharks.
However, it fails to provide substantial information on numbers,
population trends, or support for how recreational fisheries may be
contributing to the extinction risk of the global dusky shark
population.
Factor B Conclusion for Global Population
Broad statements about generalized threats to the species, or
identification of factors that could negatively impact a species, such
as being a target of fisheries or caught on specific fishing gear, do
not constitute substantial information indicating that listing may be
warranted. With the exception of the NW Atlantic, the petitioners do
not provide information on catch rates, landings, population trends,
abundance numbers, or other information indicating that the global
dusky shark may be responding in a negative fashion to fisheries or
specific fishing gear. Because the petitioners have failed to provide
substantial information that the NW Atlantic population constitutes a
significant portion of the global population's range, we conclude that
the information presented in the petitions on threats from
overutilization does not provide substantial information indicating
that listing may be warranted for the global population.
Factor D: Inadequacy of Existing Regulatory Mechanisms
NW Atlantic Population Analysis
The petitions assert that the inadequacy of existing Federal,
state, or international regulatory mechanisms require that the dusky
shark be listed under the ESA. As noted above, the dusky sharks off the
U.S East Coast were classified as a prohibited species in the 1999 NMFS
Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish and Sharks
(NMFS, 1999). In 2003, Amendment 1 to this FMP established a Mid-
Atlantic shark closure in part to protect dusky sharks (NMFS, 2003).
Beginning in January 2005, NMFS closed this Mid-Atlantic area to bottom
longline fishing from January 1 through July 31 of every year,
partially due to reports of high catches and mortality rates of dusky
sharks on bottom longline gear in this area (NMFS, 2012a). After the
2006 stock assessment found the Northwest Atlantic and Gulf of Mexico
dusky shark population to be overfished with overfishing occurring
(Cort[eacute]s et al., 2006), we established a rebuilding plan for this
stock in July 2008, with Amendment 2 to the Consolidated Atlantic HMS
FMP (NMFS, 2007). This amendment focused on minimizing the bycatch of
dusky sharks by: reducing the overall retention limits of non-sandbar
large coastal shark species, no longer allowing the species to be
collected under display permits, and prohibiting similar-looking
species from being retained by the recreational fishery. Although SEDAR
21 still determined the dusky shark stock to be overfished and
experiencing overfishing in 2011, it concluded that the prohibition on
dusky shark catch in 2000 has been an effective management tool in
decreasing fishing mortality rates (F). Specifically, SEDAR 21
estimated that F has decreased by 11 percent from
[[Page 29108]]
2000 (F = 0.385) to 2009 (F = 0.056). However, even with this decrease
in F, SEDAR 21 calculated that the stock has only an 11 percent
probability of rebuilding by 2408 (400 years). This does not
necessarily imply that the stock will go extinct. Dusky sharks do have
inherently low population growth rates with no fishing pressure, and
there is evidence that the species is still being caught by both
commercial and recreational fisheries (NMFS, 2011b; NMFS, 2012a; NMFS
2012b). Despite the fact that existing regulations have prohibited
harvest of this species, these factors may be cause for concern in
regard to its extinction risk.
As required under the MSA, we must implement additional
conservation and management measures to rebuild the overfished dusky
shark stock, and, as such, have proposed management measures that are
expected to have a 70 percent probability of rebuilding the stock by
2099 (November 26, 2012; 77 FR 70552). The comment period for these
proposed measures ended on February 12, 2013, and, after reviewing the
comments, we announced that we would reconsider the proposed measures
in a separate future action. We felt this was necessary to explore
different approaches for ending overfishing and rebuilding dusky
sharks, and fully consider and address public comments. Thus, because
management measures are still in the process of being determined, we
cannot comment on their likelihood of being effective in minimizing the
species' extinction risk at this time.
Factor D Conclusion for NW Atlantic Population
Therefore, we conclude that the petitions, and information from our
files, indicate that the petitioned action may be warranted for the NW
Atlantic population as current regulatory mechanisms may not be
adequate to protect the NW Atlantic population from extinction risk.
Global Population Analysis
For international regulations, the WEG petition mentions some of
the international conservation agreements and plans to protect sharks,
such as the Food and Agriculture Organization of the United Nations
(FAO) International Plan of Action for the Conservation and Management
of Sharks, but states that these measures are only voluntary. The
petition presents no information regarding compliance with the
voluntary measures or the impact of any non-compliance on the global
dusky shark population. The WEG petition also mentions that
``individual countries such as Australia have made minor adjustments to
their dusky shark quotas in the wake of depletion, but there is no
evidence that these management measures have staved off decline of
individual populations'' and cites Musick et al. (2007) and NMFS's 2010
Shark Finning Report to Congress (NMFS, 2010). As mentioned previously,
Musick et al. (2007) references an assessment of the dusky shark
population off southwestern Australia that found the stock was more
susceptible to overfishing than previously thought; however, the
authors also note that since 2006, the Western Australian Government
has implemented additional management measures in all commercial
fisheries, such as maximum size limits to protect older dusky sharks,
which ``should arrest further declines'' of the dusky shark population
(Musick et al., 2007). The NMFS 2010 Shark Finning Report to Congress
concluded that ``great strides continue to be made in shark
conservation, data gathering, management, research, and education on a
national and global scale that will contribute to sustainable
management of sharks'' (NMFS, 2010). Although perhaps more regulations
are needed for the conservation of all shark species in general, the
WEG petition does not provide substantial evidence to support the
assertion that current regulatory mechanisms are insufficient to
prevent the endangerment or extinction of the global dusky shark
population.
The WEG petition notes that finning regulations are ``generally
inadequate'' for protecting the global dusky shark population because
they may still be caught either directly or indirectly. It acknowledges
that finning ``contributes to a very high mortality rate for this
species'' and stresses that finning is ``now a major factor in the
commercial exploitation of sharks worldwide,'' suggesting it is a
threat to the global population of dusky sharks. Finning regulations
are a common form of shark management regulation and have been adopted
by far more countries and regional fishery management organizations
than the petition lists (see HSI, 2012). In addition, a number of
countries have also enacted complete shark fishing bans, with the
Bahamas, Marshall Islands, Honduras, Sabah (Malaysia), and Tokelau (an
island territory of New Zealand) adding to the list in 2011, and the
Cook Islands in 2012. Shark sanctuaries can also be found in the
Eastern Tropical Pacific Seascape (which encompasses around 2,000,000
km\2\ and includes the Galapagos, Cocos, and Malpelo Islands), in
waters off the Maldives, Mauritania, Palau, and French Polynesia.
Countries that prohibit the sale or trade of shark fins or products
include the Bahamas, CNMI, American Samoa, Cook Islands, Egypt, French
Polynesia, Guam, Republic of Marshall Islands, and Sabah. Additionally,
many cities in Canada also prohibit the sale or trade of shark fins/
products; thus, providing further international protection for the
global dusky shark population. The WEG petition also mentions that lack
of Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) protections (specifically an Appendix II
listing) and international reporting requirements makes ESA-listing
more urgent and ``exacerbates the paucity of international regulation
of by-catch.'' Although a CITES Appendix II listing or international
reporting requirements would provide better data on the global catch
and trade of dusky sharks, the lack of listing or requirements would
not suggest that current regulatory mechanisms are inadequate to
protect the global dusky shark population from extinction.
Factor D Conclusion for Global Population
Other than the information presented for the NW Atlantic
population, neither the information in the petitions, nor information
in our files, suggest that the global dusky shark population is at risk
of extinction from the inadequacy of existing regulatory mechanisms.
Because the petitions do not present substantial evidence that the NW
Atlantic population constitutes a significant portion of the dusky
shark's range, we conclude that the petitions do not present
substantial information on threats from the inadequacy of existing
regulatory mechanisms that would indicate that listing may be warranted
for the global population.
Factor E: Other Natural or Manmade Factors
NW Atlantic Population Analysis
The petitions contend that ``biological vulnerability'' in the form
of slow growth rates, late maturity, and shorter reproductive cycles
make the species particularly vulnerable to overfishing and slow to
recover. In an ecological risk assessment, Cort[eacute]s et al. (2012)
assessed 20 shark stocks caught in association with Atlantic PLL
fisheries and estimated their productivity values and susceptibility to
the fishery. The authors then considered those values to come up with
an overall vulnerability ranking, which was defined as ``a measure of
the extent to which the
[[Page 29109]]
impact of a fishery [Atlantic PLL] on a species will exceed its
biological ability to renew itself'' (Cort[eacute]s et al., 2012). Out
of the 20 assessed shark stocks, the Northwest Atlantic dusky shark
population ranked 6th in lowest median productivity value (r = 0.043)
but 17th in susceptibility to the Atlantic PLL fishery (indicating low
susceptibility) (Cort[eacute]s et al., 2012). However, depending on the
method used to calculate the vulnerability ranking, dusky sharks ranged
from being at a low (17th) to high (6th) risk from Atlantic PLL
fisheries (vulnerability rankings = 6th, 12th, and 17th) (Cort[eacute]s
et al., 2012). On bottom longline fisheries, information in the
petition and in our files shows that the species suffers high mortality
from incidental capture (Morgan and Burgess, 2007; Romine et al. 2009).
Factor E Conclusion for NW Atlantic Population
We conclude that the information in the petition and in our files
suggests that biological vulnerability of the species may be a threat
to the NW Atlantic population as this population is already severely
depleted and still experiencing levels of fishing pressure that may be
of concern. Thus, its high observed at-vessel fishing mortality and low
productivity may hinder the success of ongoing and future recovery
efforts.
Global Population Analysis
In addition to biological vulnerability, the WEG petition asserts
that natal homing, geographic preferences, and misidentification of
fins makes the dusky shark particularly vulnerable to overfishing, and
that pollution may lead to a population collapse, but does not provide
specific or substantial information on the current or likely future
effects of these factors on the extinction risk of the global dusky
shark population.
Factor E Conclusion for Global Population
Other than the information presented in the petition and in our
files regarding Factor E with respect to the NW Atlantic population,
the petition provides only broad general assertions regarding the
impact of other natural or manmade factors to the global population.
Because the information in the petitions in combination with the
information in our files do not present substantial information
indicating that the NW Atlantic population constitutes a significant
portion of the species' range, we conclude that the information
presented in the petitions and in our files is insufficient to indicate
that there has been or may be any negative effect on the global dusky
shark's ability to recover due to pollution impacts, misidentification
rates, global warming, or other biological or ecological vulnerability
factors.
Summary of Section 4(a)(1) Factors
We conclude that the petitions do not present substantial
scientific or commercial information indicating that any of the section
(4)(a)(1) factors may be causing or contributing to an increased risk
of extinction for the global population of dusky sharks. However, we
also conclude that the petitions present substantial scientific or
commercial information indicating that a combination of three of the
section 4(a)(1) factors: overutilization for commercial, recreational,
scientific, or educational purposes; inadequate existing regulatory
mechanisms; and other natural or manmade factors may be causing or
contributing to an increased risk of extinction for the NW Atlantic
population of dusky sharks.
Petition Finding
Global Population
After reviewing the information contained in the petition, as well
as information readily available in our files, and based on the above
analysis, we conclude that the petitions do not present substantial
scientific or commercial information indicating that the petitioned
action may be warranted for the global population.
NW Atlantic Population
We conclude that the petitions present substantial scientific
information indicating the petitioned action of listing the NW Atlantic
population of dusky sharks as threatened or endangered may be
warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA
and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will
commence a status review of the NW Atlantic population. 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 NW Atlantic dusky shark is considered to be a candidate
species (69 FR 19975; April 15, 2004). Within 12 months of the receipt
of the petition (November 14, 2012), 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
found to be 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 NW Atlantic population of dusky sharks is a DPS and
whether it is threatened or endangered. Specifically, we are soliciting
information, including unpublished information, in the following areas:
(1) The discreteness, as defined in the DPS Policy, of the NW Atlantic
population; (2) the significance, as defined in the DPS Policy, of the
NW Atlantic population; (3) historical and current distribution and
abundance of this population throughout its range; (4) historical and
current population trends; (5) life history in NW Atlantic and Gulf of
Mexico waters; (6) at-vessel and post-release mortality rates of dusky
sharks on different types of fishing gears; (7) historical and current
data on dusky shark bycatch and retention in commercial and
recreational fisheries in the NW Atlantic and Gulf of Mexico waters;
(8) historical and current data on dusky shark discards in commercial
and recreational fisheries in the NW Atlantic and Gulf of Mexico
waters; (9) data on the trade of NW Atlantic dusky shark products,
including fins, jaws, and teeth; (10) any current or planned activities
that may adversely impact the species; (11) ongoing or planned efforts
to protect and restore the population and its habitat; (12) population
structure information, such as genetics data; and (13) management,
regulatory, and enforcement information. We request that all
information be accompanied by: (1) Supporting documentation such as
maps, bibliographic references, or reprints of pertinent publications;
and (2) the submitter's name, address, and any association,
institution, or business that the person represents.
References Cited
A complete list of references is available upon request from NMFS
Protected Resources Headquarters 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.).
[[Page 29110]]
Dated: May 13, 2013.
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. 2013-11862 Filed 5-16-13; 8:45 am]
BILLING CODE 3510-22-P