[Federal Register Volume 79, Number 128 (Thursday, July 3, 2014)]
[Rules and Regulations]
[Pages 38214-38242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15710]
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Vol. 79
Thursday,
No. 128
July 3, 2014
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 224
Endangered and Threatened Wildlife and Plants; Threatened and
Endangered Status for Distinct Population Segments of Scalloped
Hammerhead Sharks; Final Rule
Federal Register / Vol. 79 , No. 128 / Thursday, July 3, 2014 / Rules
and Regulations
[[Page 38214]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 111025652-4523-03]
RIN 0648-XA798
Endangered and Threatened Wildlife and Plants; Threatened and
Endangered Status for Distinct Population Segments of Scalloped
Hammerhead Sharks
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In response to a petition submitted by WildEarth Guardians and
Friends of Animals, we, NMFS, are issuing a final determination to list
the Central and Southwest (SW) Atlantic Distinct Population Segment
(DPS) and the Indo-West Pacific DPS of scalloped hammerhead shark
(Sphyrna lewini) as threatened species under the Endangered Species Act
(ESA). We are also issuing a final determination to list the Eastern
Atlantic DPS and Eastern Pacific DPS of scalloped hammerhead sharks as
endangered species under the ESA. We intend to consider critical
habitat for the Central & SW Atlantic, Indo-West Pacific, and Eastern
Pacific DPSs in a separate rulemaking.
DATES: This final rule is effective on September 2, 2014.
ADDRESSES: Information concerning this final rule may be obtained by
contacting NMFS, Office of Protected Resources, 1315 East-West Highway,
Silver Spring, MD 20910. The final rule, list of references and other
materials relating to this determination can be found on our Web site
at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm.
FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of
Protected Resources, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
On August 14, 2011, we received a petition from WildEarth Guardians
and Friends of Animals to list the scalloped hammerhead shark (Sphyrna
lewini) as threatened or endangered under the ESA throughout its entire
range, or, as an alternative, to delineate the species into five DPSs
(Eastern Central and Southeast Pacific, Eastern Central Atlantic,
Northwest and Western Central Atlantic, Southwest Atlantic, and Western
Indian Ocean) and list any or all of these DPSs as threatened or
endangered. The petitioners also requested that critical habitat be
designated for the scalloped hammerhead under the ESA. On November 28,
2011, we published a positive 90-day finding (76 FR 72891) announcing
that the petition presented substantial scientific or commercial
information indicating the petitioned action of listing the species may
be warranted and explained the basis for that finding. On April 5,
2013, after completing a comprehensive status review of the species
(Miller et al. 2013; hereafter referred to as the ``Status Review
Report'' available at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm), we identified six DPSs of scalloped
hammerhead sharks: Northwest Atlantic and Gulf of Mexico (NW Atlantic &
GOM) DPS, Central and Southwest (SW) Atlantic DPS, Eastern Atlantic
DPS, Indo-West Pacific DPS, Central Pacific DPS, and Eastern Pacific
DPS. On April 5, 2013, we published a 12-month determination in the
Federal Register announcing that listing was not warranted at this time
for the NW Atlantic & GOM DPS and the Central Pacific DPS (see 78 FR
20718, conclusion that listing is not warranted in Proposed
Determinations). As part of the same action, we proposed a rule to list
the Central & SW Atlantic DPS and Indo-West Pacific DPS as threatened
species under the ESA, and the Eastern Atlantic DPS and Eastern Pacific
DPS as endangered species under the ESA (see 78 FR 20718, proposal to
list DPSs in Proposed Determinations). We solicited comments from all
interested parties including the public, other governmental agencies,
the scientific community, industry, and environmental groups on the
Proposed Rule. Specifically, we requested information regarding: (1)
The proposed scalloped hammerhead DPS delineations; (2) the population
structure of scalloped hammerhead sharks; (3) habitat within the range
of the DPSs proposed for listing that was present in the past, but may
have been lost over time; (4) biological or other relevant data
concerning any threats to the scalloped hammerhead shark DPSs we
proposed for listing; (5) the range, distribution, and abundance of
these scalloped hammerhead shark DPSs; (6) current or planned
activities within the range of the scalloped hammerhead shark DPSs we
proposed for listing and their possible impact on these DPSs; (7)
recent observations or sampling of the scalloped hammerhead shark DPSs
we proposed for listing; (8) efforts being made to protect the
scalloped hammerhead shark DPSs we proposed to list; and (9)
information regarding the Indo-West Pacific DPS, mainly the population
structure, range, distribution, and recent observations or sampling of
scalloped hammerhead sharks around the Western Pacific Islands. We
received 670 comments in response to the Proposed Rule during the
public comment period. Summaries of these comments are included below.
Listing Species Under the Endangered Species Act
We are responsible for determining whether scalloped hammerhead
sharks are threatened or endangered under the ESA (16 U.S.C. 1531 et
seq.) To make this determination, we first consider whether a group of
organisms constitutes a ``species'' under Section 3 of the ESA, then
whether the status of the species qualifies it for listing as either
threatened or endangered under Section 4 of the Act. Section 3 of the
ESA defines species to include ``any subspecies of fish or wildlife or
plants, and any distinct population segment of any species of
vertebrate fish or wildlife which interbreeds when mature.'' On
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS;
together, the Services) adopted a policy describing what constitutes a
DPS of a taxonomic species (61 FR 4722). The joint DPS policy
identified two elements that must be considered when identifying a DPS:
(1) The discreteness of the population segment in relation to the
remainder of the species (or subspecies) to which it belongs; and (2)
the significance of the population segment to the remainder of the
species (or subspecies) to which it belongs. As stated in the joint DPS
policy, Congress expressed its expectation that the Services would
exercise authority with regard to DPSs sparingly and only when the
biological evidence indicates such action is warranted. We evaluated
whether scalloped hammerhead population segments met the DPS Policy
criteria and described the delineations of six scalloped hammerhead
DPSs in detail in the 12-month ``not warranted'' determination and
Proposed Rule. Comments regarding the delineation are addressed in the
section ``Summary of Peer Review and Public Comments Received'' below.
Section 3 of the ESA defines an endangered species as ``any species
which is in danger of extinction throughout all or a significant
portion of its range'' and a threatened species as one ``which is
likely to become an
[[Page 38215]]
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' Thus, in the context of the ESA,
the Services interpret an ``endangered species'' to be one that is
presently at risk of extinction. A ``threatened species,'' on the other
hand, is not currently at risk of extinction, but is likely to become
so in the foreseeable future. In other words, a key statutory
difference between a threatened and endangered species is the timing of
when a species may be in danger of extinction, either now (endangered)
or in the foreseeable future (threatened). The statute also requires us
to determine whether any species is endangered or threatened as a
result of any one or a combination of the following five factors: the
present or threatened destruction, modification, or curtailment of its
habitat or range; overutilization for commercial, recreational,
scientific, or educational purposes; disease or predation; the
inadequacy of existing regulatory mechanisms; or other natural or
manmade factors affecting its continued existence (ESA, section
4(a)(1)(A)-(E)). Section 4(b)(1)(A) of the ESA requires us to make
listing determinations based solely on the best scientific and
commercial data available after conducting a review of the status of
the species and after taking into account efforts being made by any
State or foreign nation or political subdivision thereof to protect the
species. In evaluating the efficacy of existing protective efforts, we
rely on the Services' joint Policy on Evaluation of Conservation
Efforts When Making Listing Decisions (``PECE''; 68 FR 15100; March 28,
2003). The PECE provides direction for consideration of conservation
efforts that have not been implemented, or have been implemented but
not yet demonstrated effectiveness.
Summary of Peer Review and Public Comments Received
On July 1, 1994, the NMFS and USFWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270). The intent of the peer review policy is
to ensure that listings are based on the best scientific and commercial
data available. Pursuant to our 1994 policy on peer review, we
solicited technical review of the 12-month ``not warranted''
determination and the Proposed Rule from six qualified specialists.
Comments were received from two of the independent experts and those
substantive comments are addressed below.
In addition, on April 5, 2013, we solicited public comments on the
Proposed Rule for a total of 90 days (78 FR 20718). We received
comments on the 12-month ``not warranted'' determination and the
Proposed Rule from 3,618 commenters; 2,948 commenters were in the form
of signatures on a form letter. We also received over 190 comments that
were variations of another form letter. Summaries of only the
substantive public comments received, and our responses, are provided
below, organized by topic.
Peer Reviewer Comments
Comment 1: A peer reviewer noted that, in general, the 5-factor
threats assessment was accurately done, but expressed concern over the
proposed ``threatened'' listing for the population found off southern
Brazil, believing that this population may be ``endangered.'' The peer
reviewer referenced studies that reported increases in catches and
decreases in hammerhead populations off Brazil that were cited and
considered in the Proposed Rule and Status Review Report (including
Amorim et al., 1998; Kotas et al., 2008; and CITES, 2010). The peer
reviewer also noted that embryonic development of S. lewini occurs in
the oceanic area off southern Brazil. For 296 embryos collected during
1988-93, average lengths were 24.3 cm in May, 29.7 cm in June, 32.9 cm
in July, 42.0 cm in September, 46.5 cm in October, and 47.4 cm in
November. The peer reviewer noted that birth occurs probably inshore
from October to December.
Response: We accept the additional information about embryonic
development of S. lewini specifically in Brazilian waters and have
updated the Status Review Report accordingly (see Miller et al. 2014).
It is important to note that the ``threatened'' listing status was
proposed for the Central & SW Atlantic DPS, which includes scalloped
hammerhead populations found in the Caribbean as well as off the coast
of Brazil. The Extinction Risk Analysis (ERA) team, a team of
biologists and shark experts that were tasked with conducting the
extinction risk analysis for the scalloped hammerhead shark DPSs,
considered the references that were mentioned by the peer reviewer, in
addition to a number of other studies within this DPS' range, when it
evaluated the extinction risk of the Central and SW Atlantic DPS (see
Status Review Report). With no new information to indicate an increase
in extinction risk for this DPS, we do not find reason to reevaluate
the analysis in the Status Review Report or reconsider the listing
status of the Central & SW Atlantic DPS.
Comment 2: A peer reviewer commented that gene flow likely occurs
between the Atlantic west and east populations. On the African coast,
only a few samples were used (N = 6) to differentiate populations
(Duncan et al., 2006). This does not prove that there is a strong
population differentiation between the east and west coast of the
Atlantic Ocean. Furthermore, Daly-Engel et al. (2012) found no
difference between the samples from the African coast and the samples
from South Carolina; there was differentiation only between the samples
from the Gulf of Mexico and African coast. In addition, only one study
(Duncan et al., 2006) had samples from the southwestern Atlantic, but
the number of these samples (N=3) used for comparison to samples from
the west African coast was likely insufficient. Therefore, the genetic
differentiation between the African coast compared to the American
coast may require further study. Additionally, there is probably no
barrier to overcome for the scalloped hammerhead sharks in the Atlantic
Ocean and so there must be genetic exchange across the ocean. The
scalloped hammerhead is considered a circumtropical species and is
capable of traveling long distances (1,941 km, Bessudo et al., 2011).
Scalloped hammerhead sharks found in larger areas, such as the Pacific
and Indian Oceans, have been considered as one population. Also,
evidence suggests S. lewini travels from the Atlantic to the Indo-
Pacific, via southern Africa (Duncan et al., 2006).
Response: Although scalloped hammerhead sharks are highly mobile,
this species rarely conducts trans-oceanic migrations (Kohler and
Turner, 2001; Duncan and Holland, 2006; Duncan et al., 2006; Chapman et
al., 2009; Diemer et al., 2011). Genetics analyses for scalloped
hammerhead sharks using mitochondrial DNA (mtDNA), which is maternally
inherited, and microsatellite loci data, which reflects the genetics of
both parents, have consistently shown that scalloped hammerhead
subpopulations are genetically diverse and that individual
subpopulations can be differentiated, especially those populations
separated by ocean basins (Duncan et al., 2006; Chapman et al., 2009;
Ovenden et al., 2011; Daly-Engel et al., 2012). In the Atlantic, both
mitochondrial and microsatellite data indicate genetic discontinuity
within this ocean basin, with distinct populations of scalloped
hammerhead sharks defined by their respective coasts. Although only a
few samples (N=6) were taken from the coast
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of west Africa in the Dudley et al. (2006) study, in the Daly-Engel et
al. (2012) study, the authors analyzed 28 samples from the coast of
west Africa and corroborated the finding of genetic structure between
the western and eastern Atlantic S. lewini populations. Using
biparentally-inherited DNA, Daly-Engel et al. (2012) found scalloped
hammerhead samples from West Africa were weakly differentiated from
South Carolina samples (which is not the same as ``no difference''; in
fact, 0.01 <= P <= 0.05, indicating statistical significance) and
significantly differentiated from Gulf of Mexico samples (P <= 0.001).
Additionally, the Daly-Engel et al. (2012) study found the West African
scalloped hammerhead samples to be significantly differentiated from
the South African samples (P <= 0.01). Since differences in genetic
composition can sometimes be explained by the behavior of a species, we
also reviewed tagging data to learn more about the movements of the
scalloped hammerhead populations. We found that the available data
corroborate the genetic findings that populations of scalloped
hammerhead sharks rarely travel long distances over oceanic barriers,
such as deep water (see discussion in Status Review Report and the
Proposed Rule). While we acknowledge that further genetic study is
likely warranted, we must rely on the best available information at the
time of listing in order to make our determinations. As such, with no
new data provided or available to suggest otherwise, we rely on these
genetic and behavioral studies which support the finding that there is
isolation between the eastern and western Atlantic scalloped hammerhead
populations, and conclude that these populations should be treated as
separate and discrete.
Comment 3: A peer reviewer commented that aside from the NW
Atlantic & GOM DPS, there was no quantitative data supporting the
listing status determinations. Neither was there data that represented
the status of the species throughout an entire DPS. Thus, for some of
the more extensive and complex DPSs (e.g., Indo-West Pacific) there are
likely to be multiple patterns of decline occurring. For example, in
Australia, where there is adequate management of sharks, there are
likely to be smaller declines in these populations than in the more
heavily fished parts of the DPS. However, the information on scalloped
hammerhead sharks in Australian waters was missing from the ``threat of
overutilization'' section for the Indo-West Pacific DPS. There has been
a significant amount of work on scalloped hammerhead sharks in
Australia, and the lack of this information in the decision means that
this variability has been under-estimated. This is particularly
important because Australia has some of the best shark management
practices in the world, and so scalloped hammerhead sharks likely have
a much higher probability of not going extinct in this part of the DPS.
Response: While we acknowledge that, with the exception of the NW
Atlantic & GOM DPS, there is a limited amount of quantitative data
available on the other DPSs, we are required to use the best scientific
and commercial data available to determine whether the DPSs should be
listed under the ESA because of any of the following five 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)
inadequacy of existing regulatory mechanisms; or (5) other natural or
man-made factors affecting its continued existence. The best available
information, including both qualitative and quantitative data,
indicates that the Indo-West Pacific and Central & SW Atlantic DPSs are
likely to become in danger of extinction in the foreseeable future and
that the Eastern Atlantic and Eastern Pacific DPSs are currently in
danger of extinction based on threats that are ongoing and not being
adequately addressed. While it may be true that there are differing
levels of population decline and adequacy of management regulations
throughout the range of a specific DPS, we must evaluate threats to the
entire DPS when making a listing determination.
We disagree with the peer reviewer that the information on
scalloped hammerhead sharks in Australian waters was not considered in
our decision. The proposed determination was largely based on the
Status Review Report, which included substantial information on the
status of scalloped hammerhead sharks found in Australian waters. In
fact, much of the quantitative data on abundance trends that were
considered in the demographic risks section for the Indo-West Pacific
DPS came from studies conducted in Australian waters (which were also
referenced by the peer reviewer, including Harry et al., 2011a; Harry
et al., 2011b; and Reid and Krogh, 1992). As the Proposed Rule notes
(see 78 FR 20718, discussion of Evaluation of Demographic Risks, Indo-
West Pacific DPS), estimates of the decline in Australian hammerhead
abundance range from 58-85 percent (Heupel and McAuley, 2007; CITES,
2010). Catch per unit effort (CPUE) data from the northern Australian
shark fishery indicate declines of 58-76 percent in hammerhead
abundance in Australia's northwest marine region from 1996-2005 (Heupel
and McAuley, 2007). Data from protective shark meshing programs off
beaches in New South Wales (NSW) and Queensland also suggest
significant declines in hammerhead populations off the east coast of
Australia. From 1973 to 2008, the number of hammerheads caught per year
in NSW beach nets decreased by more than 90 percent, from over 300
individuals to fewer than 30 (Reid and Krogh, 1992; Williamson, 2011).
Similarly, data from the Queensland shark control program indicate
declines of around 82 percent in hammerhead shark abundance between the
years of 1985 and 2012, with S. lewini abundance fluctuating over the
years but showing a steady decline since 2004. Between 2004 and 2012,
the number of S. lewini shark caught in the Queensland shark control
program nets has decreased by 80 percent (QLD DEEDI, 2013). These shark
control programs were assessed to have at least a medium causative
impact on the localized depletions of scalloped hammerhead sharks (Reid
and Krogh, 1992).
We also agree with the reviewer that Australia has adequate
fisheries management regulations in place that would minimize the risk
of overutilization of scalloped hammerhead sharks found in Australian
waters. As the Proposed Rule and Status Review Report documents,
Australia has a number of measures to sustainably manage shark
populations, prevent the waste of shark parts, and discourage finning
(see 78 FR 20718, discussion of Inadequacy of Existing Regulatory
Mechanisms, Indo-West Pacific DPS). For example, sharks must be landed
with fins naturally attached in Commonwealth, NSW and Victorian waters,
and must be landed with corresponding fins in a set fin to carcass
ratio in Tasmanian, Western Australian, Northern Territory and
Queensland waters. In May 2012, the state of New South Wales (NSW)
listed S. lewini as an endangered species, thus protecting the shark
form recreational and commercial fisheries in NSW state waters. In
Australia's northern shark fisheries (Joint Authority Northern Shark
Fishery (JANSF) and Western Australia North Coast Shark Fishery
(WANCSF)), hammerhead catches saw a significant decline from their peak
in 2004/05 following the implementation of stricter management
regulations in
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2005 (including area closures and longline and gillnet restrictions in
WANCSF). In 2008, the JANSF's export approval was revoked over concerns
about the ecological sustainability of the fishery. In 2009, the WANCSF
export approval expired. As such, no product from either fishery can
currently be legally exported. As the northern shark fisheries rely
upon shark fin exports for the majority of their income, these export
losses have effectively shut down the fisheries, and, consequently,
from 2009-2011 there was no reported activity in the northern shark
fisheries (McAuley and Rowland, 2012).
The adequacy of these numerous fisheries management and shark
conservation regulations in Australia is reflected by the fact that
scalloped hammerhead sharks are still fairly abundant off the east
coast of Australia. For example, in a 3-year study of commercial
gillnet catch of the Queensland East Coast Inshore Finfish Fishery, S.
lewini was the 4th most abundant elasmobranch (making up 8.8 percent of
the total catch) (Harry et al., 2011b). Similarly, data from a
Queensland banana prawn trawl fishery revealed that S. lewini was the
most frequently caught shark species (based on 184 net trawls) but only
represented 0.055 percent of the total bycatch (Shark Advisory Group,
2004). Given the available information, we did not find overutilization
by Australian fisheries, or the inadequacy of Australian fisheries
management regulations, as significant threats to the Indo-West Pacific
DPS, which is why they were not discussed at length in the threats
sections of the Proposed Rule.
However, in addition to waters off Australia's coast, the Indo-West
Pacific DPS range extends throughout the entire Indian Ocean and
western Pacific. As described in the DPS analysis section of the
Proposed Rule (see 78 FR 20718, discussion of the Identification of
Distinct Populations Segments), genetic and tagging data suggest that
the scalloped hammerhead sharks in the Indo-West Pacific frequently mix
with one another (Daly-Engel et al., 2012). For example, one study
found there to be no genetic subdivision of S. lewini between Indonesia
and the eastern or northern coasts of Australia, indicating this
species moves widely between the connecting habitats of Australia and
Indonesia (Ovenden et al., 2009; Ovenden et al., 2011). In other words,
the sharks found in Australian waters are not discrete or separate from
other sharks found in the DPS range and thus are affected by threats
outside of the Australian exclusive economic zone (EEZ). As such,
although management regulations may be adequate within Australian
waters, in other parts of its range the Indo-West Pacific DPS still
faces threats of overutilization by fisheries, is subject to high
levels of illegal fishing (although this occurs in Australia's EEZ as
well), and lacks adequate regulatory protection. Using the best
available scientific and commercial information, as found in the Status
Review Report and discussed in the Proposed Rule, we determined that
these threats warrant listing the Indo-West Pacific DPS as threatened,
as it is likely to become in danger of extinction in the foreseeable
future throughout its entire range.
Comment 4: A peer reviewer commented that the designated DPSs were
largely in line with what would be expected but was a little surprised
from a biological stand-point by the separation between the NW Atlantic
& GOM DPS and the Central & SW Atlantic DPS. Given the agency's DPS
policy that takes account of not only the biological evidence, but also
the management arrangements, this conforms to the DPS policy. However,
the peer reviewer expressed concern regarding the inclusion of the
entire Gulf of Mexico range within this DPS. Specifically, the peer
reviewer noted that there is likely to be greater pressure on the NW
Atlantic & GOM DPS as the sharks swim across U.S. jurisdictional
boundaries within the Gulf of Mexico (but also noted the boundaries by
Cuba and Bahamas), and may be at an elevated risk of capture in these
less regulated fisheries, a risk that was not fully accounted for in
the listing decision.
Response: As the peer reviewer notes, the DPS designations conform
to the DPS Policy. As discussed in the Proposed Rule, we used evidence
of genetic diversity, geographic isolation, and differences in
international regulatory mechanisms for identifying the NW Atlantic &
GOM DPS as discrete from the other scalloped hammerhead shark DPSs (see
78 FR 20718, discussion of the Identification of Distinct Populations
Segments). Significance is evaluated in terms of the importance of the
population segment to the overall welfare of the species. We used
evidence that loss of the NW Atlantic & GOM population segment would
result in a significant gap in the range of the taxon, as S. lewini
from other DPSs are unlikely to repopulate the NW Atlantic & GOM DPS.
Available data show that gene flow is low between this DPS and
neighboring population segments (Duncan et al., 2006; Chapman et al.,
2009; Daly-Engel et al., 2012) and tagging studies show limited
distance movements by individuals (Duncan and Holland, 2006; Bessudo et
al., 2011; Diemer et al., 2011), including along the western Atlantic
coast (Kohler and Turner, 2001).
Although the peer reviewer did not present any new information on
the risk of capture in fisheries outside of U.S. jurisdiction, we
acknowledge in the Proposed Rule that the ERA team had concerns about
the level of illegal fishing of the NW Atlantic & GOM DPS by Mexican
fishing vessels (see 78 FR 20718, discussion of Inadequacy of Existing
Regulatory Mechanisms, NW Atlantic & GOM DPS). Based on data from 2000-
2005, Brewster-Geisz and Eytcheson (2005) estimated that Mexican
fishers are illegally catching anywhere from 3 to 56 percent of the
total U.S. Atlantic commercial shark quota, and between 6 and 108
percent of the Gulf of Mexico regional commercial quota. However, the
large range of these estimates indicates a high degree of uncertainty,
indicating that the extent of illegal fishing on the scalloped
hammerhead sharks in the Gulf of Mexico is largely unknown. Updated
data that include years 2006 through 2009 also suggest that the risk of
this threat may be diminishing. In fact, since 2005, there has been a
46 percent decrease in the number of detected incursions (Brewster-
Geisz et al., 2010). Also, in 2012, Mexico established an annual shark
fishing prohibition in its jurisdictional Gulf of Mexico waters (from
May 1 to June 30) (DOF, 2012), which will help protect S. lewini from
capture during parturition and also deter future illegal fishing by its
fishers, at least during the prohibitive period. We disagree that the
increased risk of capture from fisheries operating in Mexican waters
was not fully accounted for in the listing decision as the above
information, as well as the analysis of it and other threats by the ERA
team, was taken into consideration when we made our listing
determination that the NW Atlantic & GOM DPS is not in danger of
extinction now or in the foreseeable future.
Public Comments
Below we summarize and address the substantive public comments that
were received during the public comment period for the Proposed Rule.
Many of the commenters presented general information on threats or
provided data that were already cited, discussed, and considered in the
Status Review Report or the 12-month ``not warranted'' determination
and Proposed Rule (78 FR 20718). We briefly summarize these comments
and respond below with references to our prior documents where
[[Page 38218]]
relevant. Substantive comments and our responses are organized by
relevant topic.
``Not Warranted'' Final Determination for the NW Atlantic & GOM DPS and
Central Pacific DPS
The Federal Register notice solicited public comments on the
Proposed Rule to list the Eastern Atlantic DPS and Eastern Pacific DPS
as endangered species and to list the Central & SW Atlantic DPS and the
Indo-West Pacific DPS as threatened species. However, the vast majority
of the comments concerned the 12-month ``not warranted'' determination
for the NW Atlantic & GOM DPS and the Central Pacific DPS. Although not
presented for public comment, we reviewed the comments on the 12-month
``not warranted'' determination and provide the following responses:
A few commenters expressed concern that Draft Amendment 5 to the
2006 Consolidated Highly Migratory Species (HMS) Fishery Management
Plan (FMP) is not yet implemented (proposed on November 26, 2012; 77 FR
70552) or likely to be effective in addressing threats, such as bycatch
mortality, illegal fishing, recreational catch data quality, and
species identification problems, to the NW Atlantic & GOM DPS.
Amendment 5 proposed measures that were designed to reduce fishing
mortality and effort in order to rebuild various overfished Atlantic
shark species, including scalloped hammerhead sharks, while ensuring
that a limited sustainable shark fishery for certain species could be
maintained. In the 12-month ``not warranted'' determination, we
addressed these concerns in our assessment of threats to the NW
Atlantic & GOM DPS (78 FR 20718, discussion of Summary of Factors
Affecting the Six DPSs of Scalloped Hammerhead Sharks) and evaluated
the likelihood of implementation and effectiveness of the proposed
Draft Amendment 5 in our discussion of ``Efforts Being Made to Protect
Scalloped Hammerhead Sharks'' (78 FR 20718, discussion of U.S. Fishery
Management: Amendment 5 to the Consolidated HMS FMP) pursuant to the
joint USFWS and NMFS Policy on Evaluation of Conservation Efforts When
Making Listing Decisions (``PECE'', 68 FR 15100; March 28, 2003). In
addition, since publication of the 12-month ``not warranted''
determination, these conservation efforts have been implemented. These
measures were finalized in July 2013 with publication of Amendment 5a
to the Consolidated HMS FMP (78 FR 40318; July 3, 2013). After
considering the public comments on Draft Amendment 5, the HMS
Management Division split Amendment 5 into two rulemakings: Amendment
5a (which addressed scalloped hammerhead, sandbar, blacknose, and Gulf
of Mexico blacktip sharks) and Amendment 5b (which addressed dusky
sharks). The implemented management measures include separating the
commercial hammerhead shark quotas from the aggregated large coastal
shark (LCS) management group quotas, linking the Atlantic hammerhead
shark quota to the Atlantic aggregated LCS quotas, and linking the Gulf
of Mexico hammerhead shark quota to the Gulf of Mexico aggregated LCS
quotas. In other words, if either the aggregated LCS or hammerhead
shark quota is reached, then both the aggregated LCS and hammerhead
shark management groups will close. These quota linkages were
implemented as an added conservation benefit for the hammerhead shark
complex due to the concern of hammerhead shark bycatch and additional
mortality from fishermen targeting other sharks within the LCS complex.
The separation of the hammerhead species for quota monitoring purposes
from other sharks within the LCS management unit will allow us to
better manage the specific utilization of the hammerhead shark complex,
which includes scalloped hammerhead sharks, thus further minimizing the
threat of overutilization and promoting sustainable fishing.
For the recreational fisheries, Amendment 5a increased the minimum
size limit for hammerheads from 54 inches fork length (FL) (4.5 feet;
137 cm) to 78 inches FL (6.5 feet; 198 cm) to ensure that primarily
mature individuals are retained, which will help with rebuilding
efforts. Furthermore, since January 1, 2007, the HMS Management
Division has required all U.S. Atlantic pelagic longline, bottom
longline, and gillnet vessel owners who hold shark permits and
operators of those vessels to attend a Protected Species Safe Handling,
Release, and Identification Workshop; and all Federally permitted shark
dealers are required to attend Atlantic Shark Identification workshops.
In addition, to help with increased accuracy in reporting shark catches
down to the species level, many RFMOs and national and international
fishery managers have started distributing shark and fin guides to
fishermen.
To address the concern regarding illegal fishing, see the
discussion in the 12-month ``not warranted'' determination (78 FR
20718, discussion of Inadequacy of Existing Regulatory Mechanisms, NW
Atlantic & GOM DPS). As that action notes, the extent of illegal
fishing on the NW Atlantic & GOM DPS remains unknown. There is a high
degree of uncertainty surrounding the available estimates of illegal
catch of the NW Atlantic & GOM DPS, and we have not received any new
data since publication of the 12-month ``not warranted'' determination.
However, as mentioned in that action, updated data since 2005 show a
decrease in the number of detected incursions by Mexican fishers into
U.S. waters (Brewster-Geisz et al., 2010), indicating a possible
decline in illegal fishing on the NW Atlantic & GOM DPS.
Bycatch from vessels targeting tuna and swordfish was also
suggested as a threat to the NW Atlantic & GOM DPS during the public
comment period. In 2010, the International Commission for the
Conservation of Atlantic Tunas (ICCAT) adopted Recommendation 10-08
prohibiting the retention of hammerheads caught in association with
ICCAT-managed fisheries. In 2011, the NMFS HMS Management Division
implemented this recommendation, prohibiting the retention,
transshipping, landing, storing, or selling of hammerhead sharks in the
family Sphyrnidae (except for Sphyrna tiburo) caught in association
with ICCAT fisheries (76 FR 53652; August 29, 2011). This rule affects
the commercial HMS pelagic longline (PLL) fishery and recreational
fisheries for tunas, swordfish, and billfish in the Atlantic Ocean,
including the Caribbean Sea and Gulf of Mexico (76 FR 53652; August 29,
2011). In addition, based on new data that we received and reviewed
since publication of the 12-month ``not warranted'' determination, it
appears that scalloped hammerhead sharks have a low risk of
vulnerability to overexploitation by these PLL fisheries (Cort[eacute]s
et al., 2012).
Using an Ecological Risk Assessment, Cort[eacute]s et al. (2012)
assessed 20 shark stocks caught in association with ICCAT fisheries.
Ecological Risk Assessments are popular modeling tools that take into
account a stock's biological productivity (evaluated based on life
history characteristics) and susceptibility to a fishery (evaluated
based on availability of the species within the fishery's area or
operation, encounterability, post capture mortality and selectivity of
the gear) in order to determine its overall vulnerability to
overexploitation (Cort[eacute]s et al., 2012; Kiska, 2012). For the
assessment, scalloped hammerhead sharks were separated into two
Atlantic stocks, a northern S. lewini stock and a southern S. lewini
stock. Out of the 20 shark stocks, the northern S. lewini stock
[[Page 38219]]
ranked 15th in terms of its susceptibility to PLL fisheries in the
Atlantic Ocean, and the southern stock ranked 19th (indicating low
susceptibility, which the authors attribute to reduced interactions
with PLL gear) (Cort[eacute]s et al., 2012). In terms of productivity,
the southern stock ranked 7th in highest productivity values (r =
0.121) and the northern stock ranked 9th (r = 0.096). The authors then
calculated overall vulnerability scores using three methods: the
Euclidean distance, a multiplicative index, and the arithmetic mean of
the productivity and susceptibility ranks. Using the Euclidean distance
method, the northern Atlantic S. lewini stock ranked 16th in terms of
its overall vulnerability to the PLL fisheries in the Atlantic Ocean,
and the southern Atlantic S. lewini stock ranked 19th (note: higher
numerical rankings indicate lower vulnerability). For the
multiplicative method, their vulnerability rankings were a little lower
(with a rank of 12 for northern stock and 15 for the southern stock).
Using the arithmetic mean to calculate vulnerability scores resulted in
the same scores as the Euclidean distance method. Overall, the authors
concluded that the northern and southern Atlantic scalloped hammerhead
sharks, along with the smooth hammerhead (Sphyrna zygaena) and pelagic
sting ray (Pteroplatytrygon violacea), have the lowest vulnerabilities
to ICCAT fisheries. In other words, out of the 20 assessed shark
stocks, these species are the least vulnerable to overfishing by ICCAT
fisheries.
One commenter noted that human-made threats, such as sport-fishing
and commercial catch or bycatch mortality, should have been considered
under Factor E (``Other natural or manmade factors affecting its
continued existence'') of Section (4)(a)(1) of the ESA. We did consider
at-vessel fishing mortality under this factor; however, we assessed the
other threats of recreational and commercial fishing morality under
Factor B ``Overutilization for commercial, recreational, scientific, or
educational purposes.'' Information regarding the threats assessment
can be found in the Status Review Report and also discussed in the 12-
month ``not warranted'' determination and Proposed Rule (78 FR 20718,
discussion of Summary of Factors Affecting the Six DPSs of Scalloped
Hammerhead Sharks).
Another commenter noted that significant weight for the delineation
of the NW Atlantic & GOM DPS from the Central & SW Atlantic DPS was
based on a personal communication (``Kohler personal communication,
2012'') made to the ERA team that is not available for the public to
review. In this personal communication, discussed in the 12-month ``not
warranted'' determination and Proposed Rule (78 FR 20718, discussion of
Identification of Distinct Population Segments, Discreteness, Atlantic
Ocean Population Segments), Kohler noted that no tagged scalloped
hammerhead sharks from the northwest Atlantic have been tracked moving
south to Brazil or even Central America. We referenced this personal
communication as evidence of a potential separation of the northwest
Atlantic and Gulf of Mexico population from the Central and South
American population based on movement behavior. The information within
the personal communication is based on results from the NMFS
Cooperative Shark Tagging Program, which has tagged scalloped
hammerhead sharks off the east coast of the United States and within
the Gulf of Mexico. Kohler et al. (1998) presents results from this
program during the years of 1962 to 1993. Out of the 2,131 tagged
scalloped hammerhead sharks, 34 were recaptured with no shark
recaptured south of Cuba (Kohler et al., 1998). Although these findings
support our delineation; we wanted to check if more recent data were
available. We contacted the primary author, Dr. Nancy Kohler (who is
still associated with the NMFS Cooperative Shark Tagging Program), to
find out if any scalloped hammerhead sharks have been recaptured
further south since publication of the Kohler et al. (1998) paper. As
this data from the program is currently unpublished, we had to rely on
personal communication from the primary author. This discussion should
have cited to the 1998 publication and we now direct the public to that
document, Kohler et al. (1998), for more information.
Finally, many commenters provided additional suggestions for how to
conserve the species, such as funding more research on at-vessel
mortality, improving monitoring, developing stock assessments, closing
fisheries, and adopting precautionary management measures. While we
appreciate public input on these issues, these suggestions are beyond
the scope of our 12-month ``not warranted'' determination and the
Proposed Rule.
Global Listing
Comment 5: Several commenters requested a global listing of the
species, rather than splitting the species into DPSs, or requested that
all DPSs should be listed. For support, the commenters provided general
statements regarding threats to the species, such as overfishing and
inadequate regulatory measures. The commenters state that the shark is
overfished because it is targeted in fisheries, caught as bycatch, its
fins are traded in the shark fin trade, there is poor species
identification by fishermen, and there are current enforcement issues,
particularly on the international scale, which have contributed
directly to overfishing.
Response: The threats mentioned above have already been discussed
at length in the Status Review Report and 12-month ``not warranted''
determination and Proposed Rule (see 78 FR 20718, discussion of Summary
of Factors Affecting the Six DPSs of Scalloped Hammerhead Sharks). In
fact, the commenters use the 12-month ``not warranted'' determination
and Proposed Rule as a reference of support for many of their
statements. We agree that overutilization, inadequate regulatory
measures, and other natural or manmade factors are threats to the
Central & SW Atlantic DPS, Eastern Pacific DPS, Eastern Atlantic DPS,
and Indo-West Pacific DPS, and have discussed their effects on the
extinction risk of these four DPSs in the Proposed Rule and Status
Review Report.
Comment 6: One commenter stated that the species is under severe
stress from climate change, but did not provide a reference or data to
support this statement.
Response: Although the Status Review Report did not find evidence
of global climate change as a current threat to the scalloped
hammerhead shark, we received new information since publication of the
Proposed Rule that specifically investigated this threat for scalloped
hammerhead sharks on Australia's Great Barrier Reef (GBR) (Chin et al.,
2010). Chin et al. (2010) conducted an integrated risk assessment for
climate change to assess the vulnerability of scalloped hammerhead
sharks, as well as a number of other chondrichthyan species, to climate
change on the GBR. The assessment examined individual species but also
lumped species together in ecological groups (such as freshwater and
estuarine, coastal and inshore, reef, shelf, etc.) to determine which
groups may be most vulnerable to climate change. The assessment took
into account the in situ changes and effects that are predicted to
occur over the next 100 years in the GBR and assessed each species'
exposure, sensitivity, and adaptive capacity to a number of climate
change factors including: water and air temperature, ocean
acidification, freshwater input, ocean circulation, sea level rise,
severe weather, light, and ultraviolet radiation. Of the 133 GBR
[[Page 38220]]
shark and ray species, the assessment identified 30 as being moderately
or highly vulnerable to climate change. The scalloped hammerhead shark,
however, was not one of these species. In fact, the scalloped
hammerhead shark was ranked as having a low overall vulnerability to
climate change, with low vulnerability to each of the assessed climate
change factors. Given the available information, we do not find
evidence that global climate change is a current threat to the
scalloped hammerhead shark.
Threats to the Four Listed DPSs
Comment 7: The commenters agreed with the proposed listing status
of the Eastern Atlantic DPS and Eastern Pacific DPS as endangered,
noting the threats of juvenile mortality from artisanal fisheries,
overutilization by artisanal fisheries, poorly regulated fisheries, and
evidence of significant declines in abundance. The commenters
frequently cited to the Proposed Rule as support for their statements.
Response: We agree that the Eastern Atlantic DPS and Eastern
Pacific DPS are currently in danger of extinction from threats of
overutilization, inadequacy of existing regulatory mechanisms, and
other natural and manmade factors, and thus are listing these two DPSs
as endangered under the ESA.
Comment 8: Several commenters agreed with our findings for, and
proposal to list, the Central & SW Atlantic DPS as threatened; however,
they urged NMFS to closely monitor fishing trends and encourage gear
research and mitigation.
Response: We agree that the Central & SW Atlantic DPS warrants
listing as threatened. We will monitor the status of the Central & SW
Atlantic DPS during our periodic reviews of listed species. Under
Section 4(c)(2) of the ESA, we are required to conduct a review of the
status of listed species at least once every five years to determine
whether the species should be removed from the list or requires a
change in its status. We have no response to conducting further
research on gear effects as that is beyond the scope of the Proposed
Rule.
Proposed Boundaries of the Indo-West Pacific DPS and Inclusion of U.S.
Flag Pacific Islands
Comment 9: One commenter mentioned that NMFS may need to further
consider the differing regional management capabilities and challenges
to recovery and suggested further sub-dividing the Indo-West Pacific
DPS to assure adequate protection to the most vulnerable areas.
Response: DPS identifications are based on the best available
information relevant to the discreteness and significance criteria of
the DPS policy. Although policy considerations are important when
determining whether a population is discrete from other conspecific
populations and significant to the taxon to which it belongs, we also
rely on the available science to support these determinations. In terms
of the Indo-West Pacific DPS, the best available scientific data, which
included both genetic data and tagging studies, indicated a population
where males of the species readily mix within the connecting habitats
of the Indo-West Pacific range. While we agree that there are differing
regional management capabilities and challenges within the Indo-West
Pacific, the species is highly migratory within the region (with
indications of long-shore dispersal and panmixia; Ovenden et al., 2011)
and, as such, we do not see a conservation benefit that will be gained
from further dividing the DPS into smaller units.
Comment 10: Several commenters stated that the Indo-West Pacific
DPS encompasses an extremely large area, with geographic boundary lines
that have been drawn based on relatively little supporting biological
information. The genetic study cited as support for the DPS only
includes samples from Taiwan, the Philippines, and Hawaii, but none
from any locations in between the Western and Central Pacific range.
The referenced tagging studies are similarly limited in scope.
Response: As the comment mentions, the tagging information and
genetic studies are limited in scope; however, in identifying DPSs, we
must work with the best available scientific information relevant to
the discreteness and significance criteria of the DPS policy. We are
not aware of any study comparing genetics from locations between the
Western and Central Pacific regions, nor did the commenter provide such
information. In addition, we are not aware of any tagging information
for scalloped hammerhead sharks offshore around the Hawaiian
Archipelago, surrounding high seas, or other U.S. possessions in the
Pacific, nor has this information been provided. As such, we must work
with the best available information, and we used tagging studies in
combination with DNA studies to come to the determination that
scalloped hammerhead sharks do not commonly make oceanic migrations,
are a coastal pelagic species with evidence of regional residential
populations, and can be delineated into DPSs based on their behavior,
geophysical boundaries, and genetic characteristics (see discussion in
12-month ``not warranted'' determination at 78 FR 20718, discussion of
Identification of Distinct Population Segments, and the Status Review
Report for more information).
We disagree that the geographic boundary lines were drawn with
little supporting biological information. In fact, we based the
coordinates of the boundary lines on the conclusions from the DPS
analysis discussed within the Status Review Report but acknowledge that
this may not have been fully explained in the 12-month ``not
warranted'' determination and Proposed Rule. The Indo-West Pacific DPS
is bounded to the south by 36[deg] S. latitude (lat) and to the north
by 40[deg] N. lat. These boundary lines are based on the known
geographic range of the species (Compagno, 1984; Baum et al., 2007;
Bester, 2011). The Indo-West Pacific DPS is bounded to the west by
20[deg] E. longitude (long). This boundary line provides the separation
from the Eastern Atlantic DPS as evidenced by the available genetic
information that suggests that members of the Eastern Atlantic DPS
rarely conduct long distance southern migrations into the Indo-West
Pacific to mix with other S. lewini individuals (Daly-Engel et al.,
2012). In the east, the southern Indo-West Pacific boundary line
extends to 130[deg] W. long, then moves due north to 4[deg] S. lat.,
then due west to 150[deg] W. long., then due north to 10[deg] N. lat.
These boundary lines coincide with the Western and Central Pacific
Fisheries Commission (WCPFC) convention area boundaries within the
Eastern Pacific.
As differences in S. lewini exploitation coinciding with
international boundary lines were cited as support for the DPS
delineation, we determined that the most effective way to conserve the
DPS was to delineate it by relevant Regional Fishery Management
Organization (RFMO) boundary lines, the implication being that any
conservation measures passed by the RFMO (in this case, the WCPFC)
would be applicable to the entire DPS, not just a portion of it. From
the 10[deg] N. lat., the boundary for the Indo-West Pacific DPS extends
due west to 175[deg] E. long. and then due north to 40[deg] N. lat.
These boundary lines were primarily a consequence of the Central
Pacific DPS delineation, in order to encompass all open ocean areas
(and, hence, extending to the border of the Central Pacific DPS
boundary line). More information on the delineation of the Central
Pacific DPS boundary lines can be found in our responses to the
comments below.
Comment 11: A commenter noted that NMFS has included Johnston Atoll
in
[[Page 38221]]
the Central Pacific DPS due to its proximity to the Hawaiian
archipelago, but has not provided sufficient evidence to show why the
remaining areas of the Pacific Remote Island Areas (PRIA) are not
sufficiently close to the Hawaiian Archipelago. In other words, it is
unclear why other areas of the PRIA are not included in the Central
Pacific DPS.
Response: The PRIA includes seven islands, atolls, and reefs
located in the Central Pacific that are under the jurisdiction of the
United States: Baker, Howland, Wake and Jarvis Islands, Johnston Atoll,
Kingman Reef, and Palmyra Atoll (Rose Atoll and Midway Atoll are also
sometimes included among the PRIAs). There is deep water separating the
Hawaiian Archipelago and Johnson Atoll in the Central Pacific from the
other PRIAs, including Kingman Reef (the closest PRIA) and Palmyra
Atoll. In addition, the distance between Johnston Atoll and Kingman
reef is approximately 1,350 to 1,400 km. As stated in the 12-month
``not warranted'' determination, the bathymetric barrier and the long
distance between Johnston Atoll and the adjacent PRIAs are the primary
reasons for the delineation between these areas (see 78 FR 20718,
discussion of Identification of Distinct Population Segments,
Discreteness, Pacific Ocean Population Segments and discussion of
Proposed Determinations). Although the 12-month ``not warranted''
determination references the scalloped hammerhead's ability to travel
long distances (1,941 km, Bessudo et al., 2011; 1,671 km, Kohler and
Turner, 2001; Hearn et al., 2010; see 78 FR 20718, discussion of Life
History, Biology, and Status of the Petitioned Species, Movement and
Habitat Use), it is important to note that these migrations occurred
along continental margins or coastlines (Northwest Atlantic coast:
1,671 km), or between islands with similar oceanographic conditions
(1,941 km--however this was not a direct migration. The scalloped
hammerhead shark migrated to and around islands, separated by distances
of up to 710 km, and the total trip was estimated at 1,941 km). This
species has been known to disperse into pelagic waters off seamounts
and islands, usually for limited durations (at night; Klimley and
Nelson 1984; Hearn et al., 2010; Bessudo et al., 2011) and distances
(<10 km; Klimley and Nelson 1984; Hearn et al., 2010). The assumption
is that they are foraging in the open waters at night and returning to
the seamounts during the day, with evidence of seasonal site residence
and fidelity. There is currently no tagging evidence of adult scalloped
hammerhead sharks that would suggest they traverse long distances
(>1000 km) over open water where no submarine features exist to
interrupt the migration. Thus, based on the best available information
above and presented in the Status Review Report, we decided on a
10[deg] N. lat. southern boundary line for the Central Pacific DPS,
which coincides with the discreteness and significance findings from
the DPS analysis.
Comment 12: A few commenters state that the U.S. Flag Pacific
Islands (American Samoa, Guam, and Commonwealth of the Northern Mariana
Islands (CNMI)) and the PRIA should either be included in the Central
Pacific DPS or constitute a separate DPS. They argue that these islands
satisfy the discreteness criteria under the DPS policy because they are
delimited by international governmental boundaries within which
significant differences in control of exploitation and regulatory
mechanisms exist compared to the surrounding areas in the Indo-West
Pacific DPS.
Response: As previously stated, some of the PRIAs were not included
in the Central Pacific DPS due to the significant bathymetric barriers
and distance between the islands. The U.S. Flag Pacific Islands are
located even farther away from the Central Pacific DPS, and thus the
same rationale would apply to these territories. There is currently no
tagging evidence that shows or would suggest frequent migrations
between the scalloped hammerhead sharks around the U.S. Flag Pacific
Islands and the Central Pacific DPS. The best available data indicate
these two populations are separate. As such, we identify the scalloped
hammerhead sharks around the U.S. Flag Pacific Islands as part of the
Indo-West Pacific and not as part of the Central Pacific DPS.
We also do not agree that the scalloped hammerhead sharks found in
the U.S. Flag Pacific Islands and other PRIAs should be a separate DPS.
The joint DPS policy identifies two elements that must be considered
when identifying a DPS: (1) The discreteness of the population segment
in relation to the remainder of the species (or subspecies) to which it
belongs; and (2) the significance of the population segment to the
remainder of the species (or subspecies) to which it belongs. When the
discreteness criterion is met for a potential DPS, as the commenter
contends, then we must consider the significance criterion next.
Significance is evaluated in terms of the importance of the population
segment to the overall welfare of the species. Some of the
considerations that can be used to determine a discrete population
segment's significance to the taxon as a whole include: (1) Persistence
of the population segment in an unusual or unique ecological setting;
(2) evidence that loss of the population segment would result in a
significant gap in the range of the taxon; and (3) evidence that the
population segment differs markedly from other populations of the
species in its genetic characteristics.
The scalloped hammerhead sharks found around the U.S. Pacific Flag
Islands are not in an unusual or unique ecological setting. Scalloped
hammerhead sharks are found in coastal warm temperate and tropical seas
worldwide, frequently observed in aggregations over seamounts and near
islands. Similar ecological conditions as those found around the U.S.
Pacific Flag Islands are also observed within the Central Pacific DPS
(e.g., Johnston Atoll, Hawaiian archipelago) and other neighboring
islands of the Indo-West Pacific DPS (e.g., Palau, Micronesia, Fiji,
Philippines, New Caledonia). We do not have any information, nor was
any provided, that would suggest the ecological conditions surrounding
the U.S. Pacific Flag Islands are unusual or unique compared to the
other areas where scalloped hammerhead sharks have been observed.
Currently, we do not have any evidence that would suggest that loss
of the scalloped hammerhead sharks around the U.S. Pacific Flag Islands
and other PRIAs would result in a significant gap in the range of the
taxon. The waters surrounding the U.S. Pacific Flag Islands and PRIAs
constitute only a very small portion of the range of the scalloped
hammerhead within the Indo-West Pacific. In the event of a loss, these
areas would likely be repopulated by scalloped hammerhead sharks from
neighboring locations, such as the Marshall Islands, Micronesia, Palau,
the Philippines, Indonesia, Papua New Guinea, New Caledonia, and
Tokelau. The data support this assumption as this species commonly
disperses along continuous coastlines, continental margins, and
submarine features, such as chains of seamounts, commonly associated
with scalloped hammerhead shark ``hotspots'' (Holland et al., 1993;
Kohler and Turner, 2001; Duncan and Holland, 2006; Hearn et al., 2010;
Bessudo et al., 2011; Diemer et al., 2011). This is true even for
island populations, with tagged S. lewini individuals frequently
migrating to nearby islands and mainlands with similar oceanographic
conditions and no bathymetric barriers (Duncan and
[[Page 38222]]
Holland, 2006; Hearn et al., 2010; Bessudo et al., 2011). In other
words, loss of scalloped hammerhead sharks from the U.S. Flag Pacific
Islands and other PRIAs would not result in a significant gap in the
range of the taxon.
Finally, there is no evidence, nor has the commenter provided any
new information, that would suggest that the population segment around
the U.S. Pacific Flag Islands or PRIAs differs markedly in its genetic
characteristics (such as exhibiting unique haplotypes) from the other
scalloped hammerhead sharks of the Indo-West DPS. Thus, using the best
available scientific data, we do not find that the U.S. Pacific Flag
Islands and PRIA population satisfy the significance criterion of the
DPS policy. These scalloped hammerhead sharks will remain included in
the Indo-West Pacific DPS.
Comment 13: Several commenters argue that the U.S. Flag Pacific
Islands have management measures and regulatory mechanisms comparable
to Hawaii that provide equivalent protections for scalloped hammerhead
sharks. The commenters proceed to discuss the various management and
regulatory mechanisms in the U.S. Flag Pacific Islands as support for
their statement that these mechanisms protect the scalloped hammerhead
shark from becoming threatened or endangered in the foreseeable future.
Therefore, similar to the Central Pacific DPS, the commenters propose
that these populations do not warrant listing.
Response: We are responsible for determining whether scalloped
hammerhead sharks are threatened or endangered under the ESA (16 U.S.C.
1531 et seq.). To make this determination, we first consider whether a
group of organisms constitutes a ``species'' under Section 3 of the
ESA, then whether the status of the species qualifies it for listing as
either threatened or endangered. Section 3 of the ESA defines species
to include ``any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.'' The scalloped hammerhead
sharks found around the U.S. Pacific Flag islands are considered to be
part of the larger Indo-West Pacific DPS. The DPS is the ``species''
that qualifies for listing under the ESA; we cannot make a ``not
warranted'' finding on a portion of the DPS.
While we agree that the U.S. Flag Pacific Islands have management
measures and regulatory mechanisms comparable to Hawaii, including
gear, logbook, observer, and protected species workshop requirements,
and longline exclusion zones, which afford some protection to scalloped
hammerhead sharks within those waters, we must evaluate the adequacy of
these regulations in terms of the protections they afford to the entire
Indo-West Pacific DPS. As the Proposed Rule (78 FR 20718; April 5,
2013) notes, threats to the Indo-West Pacific DPS include
overutilization by industrial/commercial and artisanal fisheries and
inadequacy of existing regulatory mechanisms in many areas of the Indo-
West Pacific DPS range (78 FR 20718, discussion of Proposed
Determinations). Few countries within the Indian Ocean have regulations
aimed at controlling the exploitation of shark species. In addition,
while many of the small Pacific Island countries have created shark
sanctuaries in their respective waters, including Tokelau, Palau,
Marshall Islands, Cook Islands, and French Polynesia, enforcement has
proven difficult, leading to reports of vessels illegally fishing
thousands of pounds of shark products from these waters (Paul, 2009;
AFP, 2012; Turagabeci, 2012). As discussed in the Status Review Report
and Proposed Rule, the ERA team considered the current regulatory
mechanisms, including those within the U.S. Pacific Flag Islands and
elsewhere within the DPS, and evaluated the demographic risks and
threats to the Indo-Pacific DPS and concluded that the Indo-West
Pacific DPS is not currently in danger of extinction, but is likely to
become so in the foreseeable future. We have reviewed the best
available information and have determined that the Indo-West Pacific
DPS warrants listing as a threatened species.
Comment 14: One commenter stated that NMFS should re-locate the
northern boundary of the Indo-West Pacific DPS farther south (e.g., to
the equator) so that more U.S. jurisdictional waters and high seas
waters fished by U.S. fisheries are included within the Central Pacific
DPS.
Response: The southern boundary line of the Central Pacific DPS
(which is also the northern boundary line of the Indo-West Pacific
mentioned in the comment) was not chosen based on catch rates or
fishing effort by U.S. fisheries. The boundary lines of each DPS were
chosen based on behavioral and biological data from tagging and genetic
studies and consideration of the physical features of the habitats. As
previously mentioned, given the long distance between Johnston Atoll
and Kingman Reef and Palmyra Atoll, coupled with the presence of deep
water barriers between these locations, a boundary line of 10[deg] N
was chosen to separate these locations and divide the Indo-West Pacific
DPS from the Central Pacific DPS. These boundary lines are meant to
reflect the conclusions from the DPS analysis regarding the
discreteness and significance of each DPS.
Comment 15: A few commenters stated that NMFS did not provide any
information regarding the presence of scalloped hammerhead sharks in
nearshore areas of American Samoa and CNMI and only limited information
for Guam, and that they are unaware of any evidence to suggest
localized population declines of scalloped hammerhead sharks in the
U.S. Flag Pacific Islands.
Response: We do not have any quantitative information regarding the
abundance of scalloped hammerhead sharks in nearshore areas of American
Samoa and CNMI. During the public comment period, the American Samoa
Government provided us with information on observed catches of
scalloped hammerhead sharks in the American Samoa longline fishery. The
American Samoa longline fishery has had an observer program since 2006,
with coverage ranging between 6 and 8 percent from 2006-2009, and
between 20 and 33 percent since 2010. Only eight scalloped hammerhead
sharks have been observed caught during this period in the American
Samoa longline fishery.
We do not presume localized population declines of scalloped
hammerhead sharks in the U.S. Flag Pacific Islands. In the 12-month
``not warranted'' determination, we state that decreases in CPUE of
sharks off the coasts of South Africa and Australia, and in longline
catch in Papua New Guinea and Indonesian waters, suggest localized
population declines (78 FR 20718, discussion of Evaluation of
Demographic Risks, Indo-West Pacific DPS and discussion of
Overutilization for Commercial, Recreational, Scientific or Educational
Purposes factor, Indo-West Pacific DPS). We considered these population
declines, as well as information regarding other threats, such as the
inadequacy of existing regulatory measures to protect the entire DPS
(not just individuals found off American Samoa) and the species' life
history characteristics that present demographic risks to its continued
viability, when we concluded that the Indo-West Pacific DPS is
approaching a level of abundance and productivity that places its
future persistence in question throughout its entire range.
Comment 16: One commenter mentioned that American Samoa already has
an existing regulation banning the take of all sharks and
[[Page 38223]]
therefore the proposal to list the species under the ESA is redundant.
Response: The scalloped hammerhead sharks found in waters of
American Samoa are part of the Indo-West Pacific DPS. Although American
Samoa currently bans the taking of all sharks, this is not a consistent
regulation throughout the range of the Indo-West Pacific DPS. As
mentioned in a previous response (and discussed in the Status Review
Report and 12-month ``not warranted'' determination), threats to the
Indo-West Pacific DPS include overutilization by industrial/commercial
and artisanal fisheries (in countries that, for example, do not ban the
taking of sharks) and inadequacy of existing regulatory mechanisms or
weak enforcement of current regulations in many areas, resulting in
frequent reports of illegal fishing of the species. Based on an
evaluation of these threats, the Indo-West Pacific DPS was found to
warrant listing as threatened.
Threats to the Species
Comment 17: One commenter noted that large-scale impacts (e.g.,
global climate change) are the greatest threats to this mainly oceanic
shark. The commenter concludes that it is therefore highly unlikely
that proposing to list this shark species under the ESA will eliminate
this threat.
Response: We disagree that the greatest threat to the species is
global climate change. This statement, which is found in the 12-month
``not warranted'' determination and Proposed Rule (see 78 FR 20718,
discussion of the Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range), was made with regard to the
evaluation of the threat of habitat modification or destruction. We
found no evidence that would suggest the scalloped hammerhead was in
danger of extinction due to habitat destruction or modification and
instead posited that large-scale impacts, such as global climate
change, could potentially alter habitat conditions and become a threat
to the species. However, based on the Chin et al. (2010) study
discussed previously, as well as the information in the Status Review
Report, we have not found evidence to indicate that any large-scale
impacts affecting habitat conditions are currently significant threats
to the species. As discussed in the Status Review Report and 12-month
``not warranted'' determination, the threats of overutilization,
inadequacy of existing regulatory mechanisms, and other natural or
manmade factors warrant listing of the Eastern Atlantic and Eastern
Pacific DPSs as endangered and the Indo-West Pacific and Central & SW
Atlantic DPSs as threatened (see 78 FR 20718, discussion of Proposed
Determinations).
Regardless of whether a threat can be eliminated, under the ESA, a
species must be listed if it is endangered or threatened as a result of
any one or a combination of the following five factors: the present or
threatened destruction, modification, or curtailment of its habitat or
range (which may include effects from global climate change);
overutilization for commercial, recreational, scientific, or
educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or other natural or manmade factors affecting
its continued existence (ESA, section 4(a)(1)(A)-(E)). While listing a
species does not automatically remove all threats, the ESA does provide
tools for greater protection of listed species. When this final rule
takes effect, the prohibition on ``take'' in section 9 of the ESA will
apply to the Eastern Pacific and Eastern Atlantic DPSs. Also, any
action funded, authorized, or undertaken by a Federal agency that may
affect any of the listed DPSs will require consultation between that
Federal agency and NMFS under section 7 of the ESA. Once listed,
section 4 of the ESA also requires that we develop and implement
recovery plans that must, in part, identify objective, measurable
criteria which, when met, would result in a determination that the
species may be removed from the list; this standard inherently requires
that recovery plans propose methods to address impacts and threats to
the species.
Factual Errors Within Status Review Report and 12-Month ``Not
Warranted'' Determination
Comment 18: Several commenters pointed out some factual errors
regarding the description of the Hawaii-based longline fishery. For
example, the shallow-set fishery is subject to periodic closures if sea
turtle ``hard caps'' are reached, but the fishery has only closed twice
since 2004 due to sea turtle interactions. The shallow-set fishery also
operates in higher latitudes than the deep-set fishery and, as a
result, only two scalloped hammerhead sharks have been caught in the
shallow-set fishery since 2004. It is therefore incorrect to imply that
shallow-set management measures are beneficial to scalloped hammerhead
sharks when in reality there are fewer takes due to the nature of the
fishery.
Response: We have updated the Status Review Report accordingly and
reviewed the incorrect implication within the report (included in the
DPS analysis section). We do not find that the removal of the statement
regarding the benefits of the shallow-set management measures changes
the conclusions of the DPS analysis.
Comment 19: A commenter noted that the observer program for the
Hawaii-based longline fishery was initiated in 1994, not 1995. Observer
coverage rate from 1994 to 2000 ranged between 3 and 10 percent and
increased to a minimum of 20 percent in 2001. The deep-set fishery is
currently observed at a minimum of 20 percent.
Response: We have updated the Status Review Report accordingly.
Comment 20: A commenter stated that the description of the longline
prohibited area around the Main Hawaiian Islands is not accurate. A
recently implemented False Killer Whale Take Reduction Plan (77 FR
71260; November 29, 2012) under the Marine Mammal Protection Act
eliminated the seasonal contraction of the exclusion zone, establishing
a permanent longline prohibited area ranging from 50-75 nautical miles
(93-139 km) around the Main Hawaiian Islands. As a result, there is now
a year-round longline fishery closure around the Main Hawaiian Islands.
Response: We accept this correction and have concluded that this
new information regarding new fishery management measures that will
protect scalloped hammerhead sharks from being incidentally caught in
longline gear within the closure further supports our ``not warranted''
determination for the Central Pacific DPS.
Comment 21: One commenter noted that NMFS incorrectly attributes
threats to the Central Pacific DPS from the purse seine fishery. Purse
seine effort in the Western and Central Pacific Ocean occurs south of
10[deg] N. lat., with little to no effort in the Central Pacific DPS
range. It is worth nothing that higher velocity wind speeds are
encountered in higher latitudes north and south of 10[deg] N. lat. And
10[deg] S. lat., respectively, which makes it difficult to operate
large purse seine vessels that may bycatch schools of scalloped
hammerhead sharks.
Response: We have updated the Status Review Report accordingly. The
impact of this correction on our evaluation of threats to the Central
Pacific DPS has not changed our determination that listing the Central
Pacific DPS is not warranted at this time.
Comment 22: One commenter mentioned that NMFS incorrectly states
that American Samoa has a shark sanctuary. Rather, American Samoa has
[[Page 38224]]
an Executive Order prohibiting the possession and take of marine
species that includes all shark species.
Response: We have updated the Status Review Report accordingly.
Additional Information for Status Review Report and 12-Month ``Not
Warranted'' Determination
Comment 23: One commenter noted that NMFS failed to mention that
the U.S. Territories of American Samoa, Guam, and CNMI also have
measures to prohibit shark finning or possession of shark fins when it
discussed U.S. legislation in the 12-month ``not warranted''
determination and Proposed Rule.
Response: Although we did not specifically discuss the shark
finning and possession bans of the U.S. Flag Pacific Islands within the
text of the 12-month ``not warranted'' determination and Proposed Rule,
this information was included in the Status Review Report. We
considered the Status Review Report, upon which the 12-month ``not
warranted'' determination and Proposed Rule was based, as providing the
best available scientific and commercial information on the scalloped
hammerhead shark, and used it to inform our determination. Thus, the
information on shark finning and possession bans of the U.S. Flag
Pacific Islands included in the Status Review Report was considered in
our 12-month ``not warranted'' determination and Proposed Rule.
Comment 24: Several commenters provided detailed descriptions of
the American Samoa longline fishery and information regarding Guam and
CNMI longline fisheries.
Response: We appreciate the additional information and have updated
the Status Review Report accordingly.
Comment 25: One commenter provided further information on the
decline of landings from Brazil and the Eastern Atlantic, catch records
from India, and information on juveniles and landings from the Eastern
Pacific. The commenter supported the proposed endangered and threatened
listing statuses for the DPSs.
Response: We reviewed the information provided by the commenter and
determined that these data provide further support for our
designations. We have updated the Status Review Report to include this
new information.
ESA Section 9 Take Prohibitions
Comment 26: One commenter requested that if NMFS issues a Section
4(d) rule for the Indo-West Pacific DPS, Section 9 take prohibitions
should not apply to licensed Hawaii-based commercial longline vessels.
The commenter stated that the two primary threats that NMFS identified
as contributing to the extinction risk of the Indo-West Pacific DPS
were (1) lack of regulatory controls over certain fisheries and (2)
overutilization caused by bycatch and the targeting of hammerhead
sharks for fins or meat. According to the commenter, the Hawaii-based
longline fisheries do not contribute to either of these threats. The
commenter argues that existing regulatory structures applicable to the
Hawaii-based longline fisheries support the conservation of the Indo-
West Pacific DPS, and the effects, if any, of the Hawaii-based longline
fisheries on scalloped hammerhead sharks are negligible, discountable,
and insignificant. Thus, the commenter argues that the Hawaii-based
longline fisheries should not be subjected to Section 9 take
prohibitions as it is not necessary or advisable for the conservation
of the Indo-West Pacific DPS.
Response: Once a species is listed as endangered, the ESA section 9
take prohibitions of the ESA automatically apply and any `take' of the
species is illegal unless that take is authorized under an incidental
take statement following ESA section 7 consultation or under an ESA
section 10 permit authorizing directed take (e.g., for scientific
research or enhancement of the species) or incidental take during an
otherwise lawful activity. In the case of a species listed as
threatened, section 4(d) of the ESA requires the implementation of
measures deemed necessary and advisable for the conservation of
species. Therefore, for any species listed as threatened, we can impose
any or all of the section 9 prohibitions if such measures are necessary
and advisable for the conservation of the species. However, after a
review of the threats and needs of the Central & SW Atlantic DPS and
the Indo-West Pacific DPS, we have decided not to propose protective
regulations for either of these threatened DPSs (see the Section 9 Take
Prohibitions section below for more information).
Comment 27: A commenter requested that if NMFS pursues a threatened
status for the Indo-West Pacific DPS, without modifications to the
boundaries of the DPS, then NMFS should recognize the significant shark
management and conservation measures in place for the U.S. Flag Pacific
Islands. NMFS should exempt any federally authorized or permitted
activity in the U.S. Flag Pacific Islands that may occasionally operate
within the Indo-West Pacific DPS from ESA Section 4(d) take
prohibitions.
Response: As mentioned above and as explained further below, we
have determined that additional regulations prohibiting take are not
necessary or advisable for either of the threatened DPSs at this time.
Critical Habitat
Comment 28: One commenter stated that NMFS should not designate
critical habitat within any of the U.S. Flag Pacific Islands because
existing measures negate the need for any special management
consideration or protections, and the U.S. Flag Pacific Islands are on
the margins of the Indo-West Pacific distribution.
Response: The fact that the location of the U.S. Flag Pacific
Islands are on the margins of the Indo-West Pacific DPS distribution
does not necessarily have any bearing on the designation of critical
habitat. Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(3)) as: (1) The specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the ESA is no longer necessary.
Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires
that, to the extent prudent and determinable, critical habitat be
designated concurrently with the listing of a species. Designations of
critical habitat must be based on the best scientific data available
and must take into consideration the economic, national security, and
other relevant impacts of specifying any particular area as critical
habitat. If we determine that it is prudent and determinable, we will
publish a proposed designation of critical habitat for scalloped
hammerhead sharks in a separate rule. In making that determination, we
would consider input from government agencies, the scientific
community, industry and any other interested party on features and
areas that may meet the definition of critical habitat for the DPSs to
be listed that occur in U.S. waters or its territories; the Central &
SW Atlantic,
[[Page 38225]]
Indo-West Pacific, and Eastern Pacific DPSs. Input may be sent to the
Office of Protected Resources in Silver Spring, Maryland (see
ADDRESSES). Please note that we are not required to respond to any
input provided on this matter.
Summary of Changes From the Proposed Listing Rule
Based on the comments received and our review of the Proposed Rule,
we made the changes listed below.
1. We added information on the delineation of the DPS boundary
lines to clarify why these specific boundary lines were chosen.
2. We made minor revisions or added information on management
measures and regulatory mechanisms found within the U.S. Flag Pacific
Islands based on information from the American Samoa Government and the
WCPFC.
3. We changed many of the references of ``IUU'' fishing to
``illegal'' fishing based on comments received from our internal review
of the proposed listing rule and discussions with the ERA team. The ERA
team had defined ``IUU'' fishing as any instance of illegal fishing
within either the jurisdiction of a coastal state or upon the high seas
that is essentially not being regulated (as it is done without the
authorization of the nation or organization governing that fishing area
or species) and ultimately goes unreported. However, the definition of
``IUU'' fishing for the purposes of the U.S. High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826d-1826g) is provided under
regulations at 50 CFR 300.201, which defines ``IUU'' fishing as:
(1) Fishing activities that violate conservation and management
measures required under an international fishery management agreement
to which the United States is a party, including but not limited to
catch limits or quotas, capacity restrictions, and bycatch reduction
requirements;
(2) Overfishing of fish stocks shared by the United States, for
which there are no applicable international conservation or management
measures or in areas with no applicable international fishery
management organization or agreement, that has adverse impacts on such
stocks; or,
(3) Fishing activity that has a significant adverse impact on
seamounts, hydrothermal vents, cold water corals and other vulnerable
marine ecosystems located beyond any national jurisdiction, for which
there are no applicable conservation or management measures, including
those in areas with no applicable international fishery management
organization or agreement.
Because the ERA team was not using this regulatory definition of
``IUU'' fishing when referring to ``IUU'' fishing in the Status Review
Report, we have changed some of the text that previously referred to
``IUU'' fishing to read as ``illegal'' fishing in order to reduce
confusion and more accurately reflect the term as understood and
defined by the ERA team.
4. We made minor updates or added information in the listing rule
based on recommendations from peer reviewers, commenters, new
information we received or reviewed since publication of the Proposed
Rule, and our own internal review of the proposed listing rule.
We have also updated our Status Review Report based on new
information that we received or reviewed since March 2013, as well as
information provided by peer reviewers and commenters mentioned above.
From hereafter, mention of the ``Status Review Report'' refers to the
updated version (see Miller et al. 2014, available at http://www.nmfs.noaa.gov/pr/species/fish/scallopedhammerheadshark.htm). Our
listing determination and summary of the data on which it is based,
with the incorporated changes, are presented in the remainder of this
document.
Identification of Distinct Population Segments
As described above, the ESA's definition of ``species'' includes
``any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.'' The genetic diversity among subpopulations,
geographic isolation, and differences in international regulatory
mechanisms provide evidence that several populations of scalloped
hammerhead sharks meet the DPS Policy criteria. Therefore, prior to
evaluating the conservation status for scalloped hammerhead sharks, and
in accordance with the joint DPS policy, we considered: (1) The
discreteness of any scalloped hammerhead shark population segment in
relation to the remainder of the species to which it belongs; and (2)
the significance of any scalloped hammerhead shark population segment
to the remainder of the species to which it belongs.
Discreteness
The Services' joint DPS policy states that a population of a
vertebrate species may be considered discrete if it satisfies either
one of the following conditions: (1) It is markedly separated from
other populations of the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors (quantitative measures
of genetic or morphological discontinuity may provide evidence of this
separation) or (2) it 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.
To inform its decisions with respect to possible scalloped hammerhead
DPSs, the ERA team mainly relied on genetic data, tagging studies, and
evidence of differences in the control of exploitation and management
by international governmental bodies.
Although scalloped hammerhead sharks are highly mobile, this
species rarely conducts trans-oceanic migrations (Kohler and Turner,
2001; Duncan and Holland, 2006; Duncan et al., 2006; Chapman et al.,
2009; Diemer et al., 2011). Female scalloped hammerhead sharks may even
display a level of site fidelity for reproduction purposes (Duncan et
al., 2006; Chapman et al., 2009) that likely contributes to the
apparent genetic discontinuity in the global scalloped hammerhead shark
population (Duncan et al., 2006; Chapman et al., 2009; Daly-Engel et
al., 2012). Genetics analyses for scalloped hammerhead sharks using
mitochondrial DNA (mtDNA), which is maternally inherited, and
microsatellite loci data, which reflects the genetics of both parents,
have consistently shown that scalloped hammerhead subpopulations are
genetically diverse and that individual subpopulations can be
differentiated (Duncan et al., 2006; Chapman et al., 2009; Ovenden et
al., 2011; Daly-Engel et al., 2012). As discussed in the 12-month ``not
warranted'' determination and Proposed Rule (see 78 FR 20718,
discussion of Identification of Distinct Population Segments), genetic
studies indicate that populations of S. lewini in the Atlantic are
differentiated from those found in the Pacific or Indian Oceans (Duncan
et al., 2006; Chapman et al., 2009; Ovenden et al., 2011; Daly-Engel et
al., 2012). There is also evidence of further genetic isolation between
the eastern and western Atlantic scalloped hammerhead populations, and
finer scale delineation within the western Atlantic population (Duncan
et al., 2006; Chapman et al., 2009; Daly-Engel et al., 2012). With
regards to the S. lewini sharks in the Central Pacific and Eastern
Pacific, both microsatellite loci
[[Page 38226]]
and mtDNA data indicate significant genetic differentiation between
these two populations (Daly-Engel et al., 2012). However, within the
Indo-West Pacific region a lack of genetic structure suggests frequent
mixing of scalloped hammerhead populations found in these waters (Daly-
Engel et al., 2012). A comparison of microsatellite loci samples from
the Indian Ocean, specifically samples from the Seychelles and West
Australia, as well as from South Africa and West Australia, indicated
either no or weak population differentiation (Daly-Engel et al., 2012).
Additionally, there was no evidence of genetic structure between the
Pacific and Indian Oceans, as samples from Taiwan, Philippines, and
East Australia in the western Pacific showed no population
differentiation from samples in the Indian Ocean (FST = -
0.018, P = 0.470) (Daly-Engel et al., 2012).
Although these genetic data may imply that males of the species
move widely within the Indo-West Pacific region, potentially across
ocean basins, tagging studies suggest otherwise. Along the east coast
of South Africa, for example, S. lewini moved an average distance of
only 147.8 km (data from 641 tagged scalloped hammerhead sharks; Diemer
et al., 2011). Tagging studies in other regions also suggest limited
distance movements, and only along continental margins, coastlines, and
submarine features, such as chains of seamounts, commonly associated
with scalloped hammerhead shark ``hotspots'' (Holland et al., 1993;
Kohler and Turner, 2001; Duncan and Holland, 2006; Hearn et al., 2010;
Bessudo et al., 2011; Diemer et al., 2011). This is true even for
island populations, with tagged S. lewini individuals frequently
migrating to nearby islands and mainlands (Duncan and Holland, 2006;
Hearn et al., 2010; Bessudo et al., 2011), but no evidence or data to
support oceanic migration behavior. Thus, it seems more likely that the
high connectivity of the habitats found along the Indian and western
Pacific coasts have provided a means for this shark population to mix
and reproduce without having to traverse deep ocean basins. Further
explanation of the other discreteness factors can be found in the 12-
month ``not warranted'' determination and Proposed Rule (78 FR 20718).
Significance
When the discreteness criterion is met for a potential DPS, as it
is for the Northwest Atlantic & Gulf of Mexico, Central & Southwest
Atlantic, Eastern Atlantic, Indo-West Pacific, Central Pacific, and
Eastern Pacific population segments identified above, the second
element that must be considered under the DPS policy is significance of
each DPS to the taxon as a whole. Significance is evaluated in terms of
the importance of the population segment to the overall welfare of the
species. Some of the considerations that can be used to determine a
discrete population segment's significance to the taxon as a whole
include: (1) Persistence of the population segment in an unusual or
unique ecological setting; (2) evidence that loss of the population
segment would result in a significant gap in the range of the taxon;
and (3) evidence that the population segment differs markedly from
other populations of the species in its genetic characteristics.
Based on the results from the genetic and tagging analyses
mentioned previously, we believe that there is evidence that loss of
any of the population segments would result in a significant gap in the
range of the taxon. For example, the Indo-West Pacific region, which is
hypothesized as the center of origin for S. lewini, with the oldest
extant scalloped hammerhead species found in this region (Duncan et
al., 2006; Daly-Engel et al., 2012), covers a wide swath of the
scalloped hammerhead sharks' range (extending from South Africa to
Japan, and south to Australia and New Caledonia and neighboring Island
countries). However, as Daly-Engel et al. (2012) note, the migration
rate of S. lewini individuals from West Africa into South Africa is
very low (0.06 individuals per generation), suggesting that in the case
of an Indo-West Pacific extirpation, re-colonization from the Eastern
Atlantic to the Western Indian Ocean is very unlikely. In addition, re-
colonization from the Central Pacific DPS would also occur rather
slowly (on an evolutionary timescale), as those individuals would have
to conduct trans-oceanic migrations, a behavior that has yet to be
documented in this species. The Central Pacific region, itself
(extending from Kure Atoll to Johnston Atoll, and including the
Hawaiian Archipelago), encompasses a vast portion of the scalloped
hammerhead sharks' range in the Pacific Ocean and is isolated from the
neighboring Indo-West Pacific and eastern Pacific regions by deep
expanses of water. Loss of this DPS would result in a decline in the
number of suitable and productive nursery habitats and create a
significant gap in the range of this taxon across the Pacific Ocean.
From an evolutionary standpoint, the Central Pacific population is
thought to be the ``stepping stone'' for colonization to the isolated
eastern Pacific, as Duncan et al. (2006) observed two shared haplotypes
between Hawaii and the otherwise isolated Eastern Pacific population.
In other words, in the case of an Eastern Pacific population
extirpation and loss of the Central Pacific population, it would
require two separate and rare colonization events to repopulate the
Eastern Pacific population: one for the re-colonization of the central
Pacific and another for the re-colonization of the eastern Pacific.
Thus, on an evolutionary timescale, loss of the Central Pacific
population would result in a significant truncation in the range of the
taxon.
Even those discrete population segments that share a connecting
coastline, like the Northwest Atlantic & Gulf of Mexico and Central &
Southwest Atlantic population segments, will not likely see individuals
re-colonizing the range of the other population segment, given that
gene flow is low between these areas and tagging studies show limited
distance movements by individuals along the western Atlantic coast. In
addition, repopulation by individuals from the eastern Pacific to the
western Atlantic, or vice versa, is highly unlikely as these animals
would have to migrate through suboptimal oceanographic conditions, such
as very cold waters, that are detrimental to this species' survival.
Therefore, the display of weak philopatry and constrained migratory
movements provides evidence that loss of any of the discrete population
segments would result in a significant gap in the range of the
scalloped hammerhead shark, negatively impacting the species as a
whole.
Boundary Lines
In summary, the scalloped hammerhead shark population segments
considered by the ERA team meet both the discreteness and significance
criteria of the DPS policy. We concur with the ERA team's conclusion
that there are six scalloped hammerhead shark DPSs, which comprise the
global population, and are hereafter referred to as: (1) NW Atlantic &
GOM DPS, (2) Central & SW Atlantic DPS, (3) Eastern Atlantic DPS, (4)
Indo-West Pacific DPS, (5) Central Pacific DPS, and (6) Eastern Pacific
DPS. The boundaries for each of these DPSs, and brief explanations of
specific boundary lines based on the DPS analysis, are as follows (see
Figure 1):
(1) NW Atlantic & GOM DPS--Bounded to the north by 40[deg] N. lat.,
includes all U.S. EEZ waters in the Northwest Atlantic off the U.S.
mainland and extends due east along 28[deg] N. lat. off the coast of
Florida to 30[deg] W. long. In the Gulf of Mexico, the
[[Page 38227]]
boundary line includes all waters of the Gulf of Mexico, with the
eastern portion bounded by the U.S. and Mexico EEZ borders.
Explanation: The NW Atlantic & GOM DPS was identified as being
discrete from other DPSs as a consequence of genetic, behavioral, and
physical factors. Tagging studies, for example, showed that scalloped
hammerhead sharks in the northwest Atlantic and Gulf of Mexico
frequently mixed but there was no evidence of this mixing occurring
farther south with scalloped hammerhead sharks in Central and South
America, or with any of the other DPSs. Additionally, differences in
the control of exploitation and regulatory mechanisms between the
United States and Mexico and the other countries in the Atlantic were
also identified as a factor that could influence the conservation
status of Atlantic populations and provided support for the separation
of the NW Atlantic & GOM DPS from the Central & SW Atlantic DPS. For
example, the United States has implemented its own strict regulations
aimed at controlling the exploitation of scalloped hammerhead sharks in
the northwest Atlantic and Gulf of Mexico in an effort to rebuild the
population (78 FR 40317; July 3, 2013). Mexico has also prohibited
shark finning in its EEZ and recently banned shark fishing from May 1
to June 30 in the Gulf of Mexico. Based on the above information and
that which was discussed in further detail in the DPS analysis, the
boundary lines for the NW Atlantic & GOM DPS specifically around the
Gulf of Mexico and Caribbean Sea were chosen to coincide with the U.S.
and Mexico EEZ borders. The northern boundary line was based on the
known geographic range of the species (Compagno, 1984; Baum et al.,
2007; Bester, 2011), and the eastern boundary line was chosen as a mid-
point of the Atlantic Ocean to separate the Eastern from the Western
Atlantic Ocean. Although scalloped hammerhead sharks are coastal
species and would not likely be encountered in this open ocean area
(near the Eastern/Western Atlantic boundary line), we wanted to ensure
that all waters within the scalloped hammerhead range were included
within the range of a DPS.
(2) Central & SW Atlantic DPS--Bounded to the north by 28[deg] N.
lat., to the east by 30[deg] W. long., and to the south by 36[deg] S.
lat. All waters of the Caribbean Sea are within this DPS boundary,
including the Bahamas' EEZ off the coast of Florida, the U.S. EEZ off
Puerto Rico and the U.S. Virgin Islands, and Cuba's EEZ.
Explanation: Although the U.S. regulations extend to the U.S. EEZ
in the Caribbean (i.e., surrounding U.S. territories) and to U.S.
fishermen fishing on the high seas in the Caribbean Sea, the vast
majority of the Caribbean Sea nations, as well as nations farther
south, lack regulatory measures controlling the exploitation of
scalloped hammerhead sharks. Additionally, the Central & SW Atlantic
DPS was identified as being discrete from other DPSs as a consequence
of genetic, behavioral, and physical factors (78 FR 20718). As such,
the boundary lines were drawn to incorporate all waters of the
Caribbean Sea, including the U.S. EEZ surrounding the U.S. territories
in the Caribbean, and the South Atlantic. The southern boundary line
was based on the known geographic range of the species (Compagno, 1984;
Baum et al., 2007; Bester, 2011), and the eastern boundary line was
chosen as a mid-point of the Atlantic Ocean to separate the Eastern
from the Western Atlantic Ocean.
(3) Eastern Atlantic DPS--Bounded to the west by 30[deg] W. long.,
to the north by 40[deg] N. lat., to the south by 36[deg] S. lat., and
to the east by 20[deg] E. long., but includes all waters of the
Mediterranean Sea.
Explanation: The Eastern Atlantic population of scalloped
hammerhead sharks was identified as being discrete from other DPSs as a
consequence of genetic, behavioral, and physical factors (78 FR 20718).
In addition, scalloped hammerhead sharks have recently been observed
around southern Italy (Sperone et al., 2012) within the Mediterranean
Sea. Therefore, based on geography, genetics, and behavioral
information, the Eastern Atlantic DPS boundary includes those scalloped
hammerhead sharks found within the Eastern Atlantic and the
Mediterranean Sea. The northern and southern boundary lines were based
on the known geographic range of the species (Compagno, 1984; Baum et
al., 2007; Bester, 2011) and the western boundary line was chosen as a
mid-point of the Atlantic Ocean to separate the Eastern from the
Western Atlantic Ocean. The eastern boundary line shows the division
between the Eastern Atlantic DPS and those scalloped hammerhead sharks
in the Indian Ocean, as supported by available genetic information
(Daly-Engel et al., 2012).
(4) Indo-West Pacific DPS--Bounded to the south by 36[deg] S. lat.,
to the west by 20[deg] E. long., and to the north by 40[deg] N. lat. In
the east, the boundary line extends from 175[deg] E. long. due south to
10[deg] N. lat., then due east along 10[deg] N. lat. to 150[deg] W.
long., then due south to 4[deg] S. lat., then due east along 4[deg] S.
lat. to 130[deg] W. long, and then extends due south along 130[deg] W.
long.
Explanation: The Indo-West Pacific population of scalloped
hammerhead sharks was identified as being discrete from other DPSs as a
consequence of genetic, behavioral, and physical factors, as well as
differences in the control of exploitation of the species across
international boundaries (78 FR 20718). The southern and northern
boundary lines are based on the known geographic range of the species
(Compagno, 1984; Baum et al., 2007; Bester, 2011), and the western
boundary provides the separation from the Eastern Atlantic DPS as
supported by available genetic information (Daly-Engel et al., 2012).
In the east, the boundaries that form the lines south of 10[deg] N lat.
coincide with the WCPFC convention area boundaries within the Eastern
Pacific. As differences in S. lewini exploitation coinciding with
international boundary lines were cited as support for the DPS
delineation (78 FR 20718), we determined that the most effective way to
conserve the DPS was to delineate it by relevant RFMO boundary lines.
The remaining boundary lines are drawn based on the boundaries of the
Central Pacific DPS delineation in order to encompass all open ocean
areas (and, hence, extending to the border of the Central Pacific DPS
boundary line).
(5) Central Pacific DPS--Bounded to the north by 40[deg] N lat., to
the east by 140[deg] W. long., to the south by 10[deg] N. lat., and to
the west by 175[deg] E. long.
Explanation: The Central Pacific population of scalloped hammerhead
sharks was identified as being discrete from other DPSs as a
consequence of physical factors (bathymetric barriers), behavioral
factors (unlikely to make long-distance oceanic migrations but rather
disperses along continuous coastlines, continental margins, and
submarine features), and genetic differences (which support separating
this population from the neighboring Eastern Pacific and Atlantic
DPSs). In addition, the Central Pacific was identified as having many
management controls in place that protect important scalloped
hammerhead habitats and nursery grounds, as well as adequately enforced
fishing regulations that control the exploitation of the species and
provide conservation benefits to the species which are lacking in
neighboring DPSs. For example, the fisheries of the Hawaiian Islands
are managed by both Federal law, such as the Magnuson-Stevens Fishery
Conservation and Management Act (MSA), and State of Hawaii marine
conservation law. Currently, there are
[[Page 38228]]
no directed shark fisheries in Hawaii; however, scalloped hammerhead
sharks are sometimes caught as bycatch on Hawaiian longline gear. The
Hawaii pelagic longline (PLL) fishery, which operates mainly in the
Northern Central Pacific Ocean, is managed through a Fishery Ecosystem
Plan (FEP) developed by the Western Pacific Regional Fishery Management
Council (WPFMC) and approved by NMFS under the authority of the MSA. In
an effort to reduce bycatch in this fishery, a number of gear
regulations and fishery management measures have been implemented. A
recently implemented False Killer Whale Take Reduction Plan (77 FR
71260; November 29, 2012) under the Marine Mammal Protection Act has
also established a permanent longline prohibited area ranging from 50-
75 nautical miles (93-139 km) around the Main Hawaiian Islands. In
addition, mandatory fishery observers have been monitoring both sectors
(shallow and deep) of the limited-entry Hawaii-based PLL fishery since
1994, with observer coverage increasing in recent years to provide a
more comprehensive bycatch dataset. Shark finning has also been banned
since 2000 for the Hawaii-based longline fishery. Although these
significant and effectively enforced fishery management measures in the
Central Pacific (and the lack thereof in neighboring DPSs) were
identified as support for the discreteness of this DPS, we relied
mainly on the biological and physical factors that separated this DPS
from other DPSs when delineating the boundary lines of the DPS.
The northern boundary line of Central Pacific DPS is based on the
known geographic range of the species (Compagno, 1984; Baum et al.,
2007; Bester, 2011). The southern boundary line was chosen based on
bathymetric barriers and distance to the neighboring PRIAs. Between
Johnston Atoll and the nearest PRIA (Kingman reef), the distance is
approximately 1,350 to 1,400 km. Although scalloped hammerhead sharks
have the ability to travel long distances (1,941 km, Bessudo et al.,
2011; 1,671 km, Kohler and Turner, 2001; Hearn et al., 2010), it is
important to note that these migrations occur along continental margins
or coastlines or between islands with similar oceanographic conditions.
This species has been known to disperse into pelagic waters off
seamounts and islands, usually for limited durations (at night; Klimley
and Nelson 1984; Hearn et al., 2010; Bessudo et al., 2011) and
distances (<10 km; Klimley and Nelson 1984; Hearn et al., 2010). The
assumption is that they are foraging in the open waters at night and
returning to the seamounts during the day, with evidence of seasonal
site residence and fidelity. A study conducted in a nursery ground in
Hawaii revealed that sharks travelled as far as 5.1 km in the same day,
but the mean distance between capture points was only 1.6 km (Duncan
and Holland, 2006). Another tagging study in Hawaii indicates that
adult males remain ``coastal'' within the archipelago (Holland personal
communication, 2012). There is currently no tagging evidence of adult
scalloped hammerhead sharks that would suggest they traverse long
distances (>1000 km) over deep open water. As such, the southern
boundary line at 10[deg] N. lat. represents the separation of the
Central Pacific DPS from the Indo-West Pacific DPS as a result of
bathymetric and distance barriers. The western boundary line was
delineated based on the deep water barrier adjacent to the
Papah[amacr]naumoku[amacr]kea Marine National Monument to the northwest
of the range of the Central Pacific DPS in order to separate these
islands from the neighboring Indo-West Pacific islands and their
respective EEZs. The eastern boundary line captures the eastern extent
of the U.S. EEZ of the Hawaiian Archipelago and falls within the
longitudinal area regarded as the Eastern Pacific Barrier (EPB), a deep
water barrier to routine passage by this species and many insular
species, based on their zoogeographic patterns (Baums et al., 2012). As
the scalloped hammerhead is unlikely to cross this deep EPB, as
supported by the genetic and behavioral data (78 FR 20718), it was
determined that the boundary line between the Eastern Pacific DPS and
Central Pacific DPS should be approximately the midpoint of this
geophysical barrier.
(6) Eastern Pacific DPS--bounded to the north by 40[deg] N lat. and
to the south by 36[deg] S lat. The western boundary line extends from
140[deg] W. long. due south to 10[deg] N., then due west along 10[deg]
N. lat. to 150[deg] W. long., then due south to 4[deg] S. lat., then
due east along 4[deg] S. lat. to 130[deg] W. long, and then extends due
south along 130[deg] W. long.
Explanation: The Eastern Pacific population of scalloped hammerhead
sharks was identified as being discrete from other DPSs as a
consequence of genetic, behavioral, and physical factors as well as
differences in the control of exploitation of the species across
international boundary lines (78 FR 20718). The northern and southern
boundary lines are based on the known geographic range of the species
(Compagno, 1984; Baum et al., 2007; Bester, 2011). The northern section
of the western boundary provides the geophysical separation from the
Central Pacific DPS and the rest of the boundary line coincides with
the WCPFC convention area boundaries within the Eastern Pacific. As
differences in S. lewini exploitation coinciding with international
boundary lines were cited as support for the DPS delineation (78 FR
20718), we determined that the most effective way to conserve the DPS
was to delineate it by relevant RFMO boundary lines.
[[Page 38229]]
[GRAPHIC] [TIFF OMITTED] TR03JY14.010
Summary of Factors Affecting the Four DPSs of Scalloped Hammerhead
Sharks
The ESA defines an endangered species as one that is ``in danger of
extinction throughout all or a significant portion of its range,'' and
a threatened species as one that is ``likely to become an endangered
species in the foreseeable future throughout all or a significant
portion of its range'' (Sections 3 (6) and (20) of the ESA). Section
4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424)
state that we must determine whether a species is endangered or
threatened because of any one or a combination of the following
factors: the present or threatened destruction, modification, or
curtailment of its habitat or range; overutilization for commercial,
recreational, scientific, or educational purposes; disease or
predation; inadequacy of existing regulatory mechanisms; or other
natural or man-made factors affecting its continued existence. We are
to make this determination based solely on the best available
scientific and commercial information after conducting a review of the
status of the species and taking into account any efforts being made by
states or foreign governments to protect the species.
The Proposed Rule to list the Central & SW Atlantic DPS, Eastern
Atlantic DPS, Indo-West Pacific DPS, and the Eastern Pacific DPS (78 FR
20718) and the Status Review Report (Miller et al., 2014) provide
detailed discussion of the status and threats to each DPS. As described
in the Proposed Rule, the primary factors responsible for the decline
of these four DPSs are overutilization, due to both catch and bycatch
of these sharks in fisheries, and inadequate regulatory mechanisms for
protecting these sharks, with illegal fishing identified as a
significant problem. We conducted a comprehensive assessment of the
combined impact of the five ESA section 4(a)(1) factors throughout the
range of each DPS to determine extinction risk of each DPS. We focused
on evaluating whether the DPSs are presently in danger of extinction,
or whether the danger of extinction is likely to develop in the future.
In our Proposed Rule and this final rule to list these four DPSs, we
determined that the Eastern Atlantic and Eastern Pacific DPSs are
currently in danger of extinction and that the Central & SW Atlantic
and Indo-West Pacific DPSs are likely to become so in the foreseeable
future. The next section briefly summarizes our findings regarding
threats to these DPSs of scalloped hammerhead sharks, including any new
information that was received during the public comment period. More
details can be found in the Status Review Report and the Proposed Rule
(78 FR 20718).
The Present or Threatened Destruction, Modification, or Curtailment of
Its Habitat or Range
We did not find evidence to suggest that habitat destruction,
modification, or curtailment was presently contributing significantly
to any of the DPS's risks of extinction. Because the scalloped
hammerhead range is mainly comprised of open ocean environments
occurring over broad geographic ranges, large-scale impacts such as
global climate change that affect ocean temperatures, currents, and
potentially food chain dynamics, are most likely to pose the greatest
threat to this species. However, we did not find evidence of any large-
scale impacts affecting habitat
[[Page 38230]]
conditions that are currently significant threats to the species.
Additionally, the scalloped hammerhead shark is highly mobile within
the range of its DPS (Kohler and Turner, 2001; Duncan and Holland,
2006, Maguire et al., 2006; Bessudo et al., 2011; Diemer et al., 2011),
and there is no evidence to suggest its access to essential habitat is
restricted within the ranges of any of the DPSs. It also does not
participate in natal homing, which would essentially restrict the
species to a specific nursery ground, but rather has been found
utilizing artificially enlarged estuaries as nursery habitats located
100 to 600 km from established nursery grounds (Duncan et al., 2006).
Also, based on a comparison of S. lewini distribution maps from 1984
(Compagno, 1984) and 2012 (Bester, n.d.), and current reports of
scalloped hammerhead shark catches in FAO fishing areas, there is no
evidence to suggest a range contraction for any DPS based on habitat
degradation. Overall, using the best available information, there is no
evidence to suggest there exists a present or threatened destruction,
modification, or curtailment of the scalloped hammerhead shark's
habitat or range and we conclude that it is unlikely that this factor
is contributing on its own or in combination with other factors to the
extinction risk of any of the four DPSs.
Overutilization for Commercial, Recreational, Scientific or Educational
Purposes
We identified overutilization for commercial and/or recreational
purposes as a significant threat contributing to the extinction risk of
the four scalloped hammerhead shark DPSs. Scalloped hammerhead sharks
are targeted by industrial, commercial, artisanal and recreational
fisheries, and caught as bycatch in many other fisheries, including
pelagic longline tuna and swordfish, gill net, and purse seine
fisheries. Below, we briefly summarize our findings regarding
overutilization for each of the four DPSs.
The threat of overutilization by industrial/commercial fisheries
was identified as a high risk and overutilization by artisanal
fisheries as a moderate risk to the extinction of the Central & SW
Atlantic DPS. Brazil, the country that reports one of the highest
scalloped hammerhead landings in South America, maintains heavy
industrial fishing of this species off its coastal waters. In the late
1990s, Amorim et al. (1998) remarked that heavy fishing by longliners
led to a decrease in this population. According to the FAO global
capture production database, Brazil reported a significant increase in
catch of S. lewini during this period, from 30 mt in 1999 to 508 mt by
2002, before decreasing to a low of 87 mt in 2009. Similar decreases in
landings were also reported by the State of Santa Catarina in Brazil.
Based on new information not previously discussed in the Proposed Rule,
in 1989, landings of the hammerhead complex (mainly S. lewini and S.
zygaena) totaled 6.7 mt, but then increased to a peak of 570 mt in 1994
as a result of the development of net fishing (CITES, 2013). From 1995
to 2007, landings varied but never recovered to the levels of 1994, and
in 2008, landings dropped to 44 mt (CITES, 2013).
Documented heavy inshore fishing has also led to significant
declines of adult female S. lewini abundance (up to 90 percent) (CITES,
2010) as well as targeted fishing of and reported decreases in juvenile
and neonate scalloped hammerhead populations (Vooren et al., 2005;
Kotas et al., 2008). Information from surface longline and bottom
gillnet fisheries targeting hammerhead sharks off southern Brazil
indicates declines of more than 80 percent in CPUE from 2000 to 2008,
with the targeted hammerhead fishery abandoned after 2008 due to the
rarity of the species (FAO, 2010).
S. lewini is also commonly landed by artisanal fishers in the
Central and Southwest Atlantic, with concentrated fishing effort in
nearshore and inshore waters, areas likely to be used as nursery
grounds. Specific catch and landings data are unavailable from the
Caribbean; however, S. lewini is often a target of artisanal fisheries
off Trinidad and Tobago, eastern Venezuela, and Guyana, and anecdotal
reports of declines in abundance, size, and distribution shifts of
sharks suggest significant fishing pressure on overall shark
populations in this region (Kyne et al., 2012). Additionally, Chapman
et al. (2009) recently linked S. lewini fins from Hong Kong fin traders
to the Central American Caribbean region, suggesting the lucrative fin
trade may partially be driving the artisanal and commercial fishing of
this DPS. Farther south, in Brazil, artisanal fisheries make up about
50 percent of the fishing sector, with many fishers focusing their
efforts inshore on schools of hammerheads. Between 1993 and 2001, adult
female S. lewini abundance in Brazil decreased by 60-90 percent due to
this inshore fishing pressure (CITES, 2010). In 2004, Brazil recognized
this threat of S. lewini overutilization in its waters and subsequently
added the species to its list of over-exploited species (Normative
Instruction MMA n[deg] 05); however, this listing does not carry with
it any prohibitions on fishing for the species. The best available
information indicates that overutilization of this DPS has resulted in,
and continues to contribute to, declines in abundance of this DPS. As
abundance decreases, the DPS becomes more vulnerable to risk of
extinction due to environmental variation, anthropogenic perturbations,
and depensatory processes. The ERA team concluded, and we agree, that
this DPS' current trends and level of abundance due to overutilization
of the DPS are contributing significantly to its risk of extinction.
The threat of overutilization by industrial/commercial and
artisanal fisheries was identified as a high risk to the extinction of
the Indo-West Pacific DPS. High levels of commercial fishing that
target sharks or catch them as bycatch occur in this DPS.
Unfortunately, few studies on the specific abundance of S. lewini have
been conducted on this DPS, making it difficult to determine the rate
of exploitation of this species. One study, off the coast of Oman,
found S. lewini to be among the most commonly encountered species in
commercial landings from 2002 to 2003 (Henderson et al., 2007).
However, in 2003, S. lewini experienced a notable decline in relative
abundance and, along with other large pelagic sharks, was displaced by
smaller elasmobranch species (a trend also reported by informal
interviews with fishermen) (Henderson et al., 2007). Off East Lombok,
in Indonesia, data provided to the FAO also suggest potential declines
in the population as the proportion of scalloped hammerhead sharks in
the Tanjung Luar artisanal shark longline fishery catch decreased from
15 percent to 2 percent over the period of 2001 to 2011 (FAO, 2013).
In contrast, and based on new information not previously discussed
in the Proposed Rule, records from Cohin Fisheries Harbor in India
suggest an increase in the catch of S. lewini from 2007 to 2011, with
the sharks constituting around 12.2 percent of the total shark landings
at Cochin (CITES, 2013). However, during this same period, the minimum
size of the sharks decreased from 1.1 m to 0.7 m, possibly indicating
evidence of size truncation and overexploitation (CITES, 2013).
Similarly, in Chinese Taipei, the median weight of S. lewini has
significantly decreased over the past 20 years, based on new data from
Huang (2013) (Joung et al., 2013) that was received after publication
of the Proposed Rule. The
[[Page 38231]]
removal of these larger, and hence, likely mature animals decreases the
productivity of the population, particularly for slow-growing, late-
maturing, and long-lived species such as the scalloped hammerhead
shark. Additionally, CPUE data from South Africa and Australia shark
control programs indicate significant declines (over 90 percent) of
local scalloped hammerhead populations in this DPS, most likely a
result from overharvesting, although it should be noted that these
shark control programs were also assessed to have at least a medium
causative impact on these localized depletions. Specifically, declines
of 99 percent, 86 percent, and 64 percent have been estimated for S.
lewini from catch rates in shark nets deployed off the beaches of South
Africa from 1952-1972, 1961-1972, and 1978-2003, respectively (Dudley
and Simpfendorfer, 2006; Ferretti et al., 2010). Estimates of the
decline in Australian hammerhead abundance range from 58-85 percent
(Heupel and McAuley 2007; CITES, 2010). CPUE data from the northern
Australian shark fishery indicate declines of 58-76 percent in
hammerhead abundance in Australia's northwest marine region from 1996-
2005 (Heupel and McAuley, 2007). From 1973 to 2008, the number of
hammerheads caught per year in NSW beach nets decreased by more than 90
percent, from over 300 individuals to fewer than 30 (Reid and Krogh,
1992; Williamson, 2011). Similarly, data from the Queensland shark
control program indicate declines of around 82 percent in hammerhead
shark abundance between 1985 and 2012, with S. lewini abundance
fluctuating over the years but showing a recent and steady decline
since 2004 (QLD DEEDI, 2013). Between 2004 and 2012, the number of S.
lewini sharks caught in the Queensland shark control program nets
decreased by 80 percent (QLD DEEDI, 2013).
In other waters of this DPS, shark populations are presumed to be
fully to over-exploited (de Young, 2006), with evidence of significant
landings by longline and artisanal fisheries and declines in scalloped
hammerhead shark catch. For example, Papua New Guinea, which currently
has an active domestic shark longline fishery, reported a 43 percent
decrease in its hammerhead catch over the course of 1 year (from 2011
to 2012). For many of the artisanal fisheries in this region, the
lucrative shark fin trade is the driving force behind exploitation of
scalloped hammerhead sharks. For example, in northern Madagascar,
Robinson and Sauer (2011) documented an artisanal fishery that targets
sharks primarily for their fins and discards the carcasses. Two shark
families comprised the majority of the artisanal landings:
Carcharhinidae accounted for 69 percent of the species and Sphyrnidae
accounted for 24 percent (Robinson and Sauer, 2011). S. lewini was the
most common species in the Sphyrnidae landings, with over 96 percent of
the catch comprised of immature individuals (Robinson and Sauer, 2011).
Similarly, the shark fisheries operating in Antongil Bay in
northeastern Madagascar commonly land only fins, rather than whole
sharks, with the scalloped hammerhead shark as the most represented
species in the shark fishery (Doukakis et al., 2011). Both adults,
including pregnant females, and juveniles are harvested in the small
and large-mesh artisanal gillnet and traditional beach seine fisheries,
suggesting largely unregulated and targeted fishing of scalloped
hammerhead sharks in a potential breeding ground (Doukakis et al.,
2011). Furthermore, four of the top five exporters of shark fins to
Hong Kong (Singapore, Taiwan, Indonesia, and the United Arab Emirates)
are located in this DPS' range, and in 2008 accounted for around 34
percent (or 3,384 mt) of the total exports of shark fins (both frozen
and dried). The best available information indicates that
overutilization of this DPS has resulted in, and continues to
contribute to, declines in abundance of this DPS. Decreases in the size
of the sharks over time likely indicate an overexploited population and
portends declines in the per capita growth rate of the population.
Over-harvesting of sharks in breeding grounds is likely to affect
recruitment success to this DPS. Overall, the ERA team concluded, and
we agree, that overutilization is significantly increasing this DPS'
risk of extinction by contributing to the continued decline in current
abundance and placing the DPS on a path where it is more vulnerable to
risk of extinction due to environmental variation, anthropogenic
perturbations, and depensatory processes.
The threat of overutilization by industrial/commercial fisheries
was identified as a high risk and overutilization by artisanal
fisheries as a moderate risk to the extinction of the Eastern Atlantic
DPS. Although species-specific data are unavailable from this region,
hammerheads are a large component of the bycatch in the European
pelagic freezer-trawler fishery that operates off Mauritania. Between
2001 and 2005, 42 percent of the retained pelagic megafauna bycatch
from over 1,400 freezer-trawl sets consisted of hammerhead species (S.
lewini, S. zygaena, and S. mokarran). Of concern, especially as it
relates to abundance and recruitment to the population, is the fact
that around 75 percent of the hammerhead catch were juveniles of 0.50-
1.40 m in length (Zeeberg et al., 2006). In addition to the industrial
fisheries, scalloped hammerhead sharks are targeted by many of the
artisanal fisheries operating off West Africa. According to Diop and
Dossa (2011), shark fishing has occurred in the Sub Regional Fisheries
Commission (SRFC) member countries (Cape-Verde, Gambia, Guinea, Guinea-
Bissau, Mauritania, Senegal, and Sierra Leone) for around 30 years.
However, since 2005, there has been a significant and ongoing decrease
in shark landings, with an observed extirpation of some species, and a
scarcity of others, such as large hammerhead sharks (Diop and Dossa,
2011), indicating overutilization of the resource. In Mauritania, many
of the artisanal fisheries have been documented fishing great
quantities of juvenile scalloped hammerhead sharks using driftnets and
fixed gillnets (CITES, 2010), with S. lewini also caught in large
numbers in the sciaenid fishery operating in this region. In 2010, the
first year that it provided capture production statistics to FAO,
Mauritania reported a total catch of 257 mt of S. lewini, the highest
amount reported by any one country since 2003. According to data
provided to the FAO, S. lewini abundance off the coast of Mauritania
has declined by 95 percent since 1999, with evidence of a decrease in
average size of the shark since 2006 (FAO, 2013). From 2006 to 2009,
CPUE of S. lewini declined from a peak of 55.0 kg/day at sea to 26.2
kg/day at sea (Dia et al., 2012). Similarly, scientific research survey
data, collected from 1982-2010, also show a sharp drop in yields,
especially since 2005, and in 2010, virtually no Sphyrna sp (S. lewini
and S. zygaena) were caught during the survey (Dia et al., 2012). Given
the evidence of significant declines in abundance, to the point where
S. lewini is rarely observed, it is likely that the current DPS levels
of abundance and density place it at a risk of extinction due to
depensatory processes (where abundance may be insufficient to support
reproductive processes). As such, any additional mortality on this DPS
may be devastating, and given the largely unregulated catch of the
species off West Africa but steady demand and fishing pressure on
marine resources for food and livelihood in this region (Diop
[[Page 38232]]
and Dossa, 2011), we conclude that historical and current
overutilization of this DPS is contributing significantly to its risk
of extinction.
The threat of overutilization by industrial/commercial fisheries
and artisanal fisheries was identified as a high risk to the extinction
of the Eastern Pacific DPS. Although abundance data are lacking in this
area, information from commercial and artisanal fisheries suggests
heavy exploitation of this DPS. For example, in Mexico, S. lewini was
and continues to be a popular fished species in artisanal fisheries.
Historically, artisanal fishermen routinely caught them on the southern
coast of Sinaloa (P[eacute]rez-Jim[eacute]nez et al., 2005; Bizzarro et
al., 2009), and they comprised over 50 percent of the elasmobranch
catch and 43 percent of the total recorded catch in the late 1990s
(Bizzarro et al., 2009). From 2004 to 2005, S. lewini comprised 64
percent of the artisanal shark catch south of Oaxaca, Mexico (CITES,
2012). In the Gulf of Tehuantepec, scalloped hammerhead sharks
constitute the second most important shark species targeted by Mexican
fishers, comprising around 29 percent of the total shark catch from
this region (INP, 2006). In fact, from 1996 to 2003, a total of 10,919
individual scalloped hammerhead sharks were landed from this area and
brought to port in the Mexican state of Chiapas (INP, 2006), where S.
lewini and C. falciformis represent 89.3 percent of the shark catch
(CITES, 2012). However, it is estimated that the scalloped hammerhead
population is currently decreasing by 6 percent per year, and from
1996-2001, CPUE of S. lewini in the Gulf of Tehuantepac declined to
nearly zero (INP, 2006).
In Costa Rica, shark catches reported by the artisanal and longline
fisheries declined by approximately 50 percent after reaching a maximum
of 5,000 mt in 2000 (SINAC, 2012). According to the Costa Rican
Institute of Fishing and Aquaculture, the estimated total catch of S.
lewini by the coastal artisanal and longline fleet from 2004-2007 was
823 mt, which represented 3 percent of the national Costa Rican total
catch of sharks for these years (SINAC, 2012). In Ecuador, sharks are
mainly caught as incidental catch in a variety of fishing gear,
including pelagic and bottom longlines, and drift and set gill nets,
with scalloped hammerhead sharks used primarily for the fin trade. In
2004, total combined landings from ten of Ecuador's main small-scale
fishing ports were approximately 149 mt. In 2005, this number decreased
by about 67 percent to 49 mt, but subsequently increased in the
following years to reach a peak of 327 mt in 2008. In 2009, landings
decreased again by around 71 percent, but tripled the following year to
reach approximately 304 mt of hammerhead sharks in 2010 (INP, 2010).
Of major concern is that many of the artisanal fishers from the
Eastern Pacific region are targeting schools of juvenile and immature
S. lewini due to the profitability of the younger shark meat (Arriatti,
2011), and likely negatively affecting recruitment to this DPS. In
Colombia, around 73.7 percent of the S. lewini individuals caught in
artisanal fisheries are juveniles < 200 cm TL (CITES 2013). In Panama,
directed artisanal fishing for hammerheads has been documented in
coastal nursery areas, with artisanal gillnet fishery catches dominated
by neonate and juvenile S. lewini (Arriatti, 2011). Likewise, in Costa
Rica, many of the identified nursery grounds for scalloped hammerhead
sharks are also popular elasmobranch fishing grounds and are heavily
fished by gillnets (Zanella et al., 2009). In ``Tres Marias'' Islands
and Isabel Island in the Central Mexican Pacific, Perez-Jimenez et al.
(2005) found artisanal fishery catches dominated by immature
individuals. Out of 1,178 females and 1,331 males caught from 1995-1996
and 2000-2001, less than 1 percent were mature (Perez-Jimenez et al.,
2005). On the coast of Chiapas in Mexico, neonates (<= 60cm TL)
comprised over 40 percent of the Port of Madero catch from 1996-2003
(INP, 2006). Seasonal surveys conducted in Sinaloa, Mexico from 1998-
1999 depict an active artisanal fishery that primarily targets early
life stages of S. lewini, with only four specimens (out of 1,515)
measuring > 200 cm stretched TL (Bizzarro et al., 2009). A comparison
of landing sizes from this region between 1998-1999 and 2007-2008
revealed a significant decrease in S. lewini size, indicating a
possible truncation of the size of the local population (Bizzarro et
al., 2009). In Michoac[aacute]n, hammerheads represent 70 percent of
the catch, with fishing effort concentrated in breeding areas and
directed towards juveniles and pregnant females (CITES, 2012) and
reports of the artisanal fishermen filleting the embryos of S. lewini
for domestic consumption (Smith et al., 2009).
Given the species' low productivity, slow growth rate, and late
maturity, this substantial removal of recruits from the population is
causing, and will continue to cause, a decline in the DPS abundance.
For example, based on new information not previously discussed in the
Proposed Rule, between 1995 and 2004, a shrimp trawling fishery
operating in the Colombian Pacific noted a significant decrease in its
bycatch of S. lewini juveniles, with no reports of the species in 2007
(CITES, 2013). Overall, the data suggest the heavy fishing pressure on
scalloped hammerhead sharks by artisanal fisheries, especially in
nursery areas where substantial takes of juveniles and neonates, and
possibly pregnant females, have been recorded, and subsequent catch and
population declines can be characterized as overutilization that is
significantly increasing the species' risk of extinction.
Competition, Disease, and Predation
We did not find evidence to suggest that competition, disease, or
predation was presently contributing significantly to any of the DPSs'
risks of extinction, nor was it likely to put any of the DPSs at risk
of extinction in the future. Scalloped hammerhead sharks are apex
predators and opportunistic feeders, with a diet composed of a wide
variety of items, including teleosts, cephalopods, crustaceans, and
rays (Compagno, 1984; Bush, 2003; J[uacute]nior et al., 2009; Noriega
et al., 2011). Although there may be some prey species that have
experienced population declines, no information exists to indicate that
depressed populations of these prey species are negatively affecting
the scalloped hammerhead shark abundance. In addition, predation is not
thought to be a major threat to scalloped hammerhead abundance numbers.
In terms of disease, these sharks likely carry a range of parasites,
such as external leeches (Stilarobdella macrotheca) and copepods
(Alebion carchariae, A. elegans, Nesippus crypturus, Kroyerina
scotterum); however, the sharks have often been observed visiting
parasite cleaning stations (Bester, n.d.) and no data exist to suggest
these parasites are affecting S. lewini abundance.
The Inadequacy of Existing Regulatory Mechanisms
We identified the inadequacy of existing regulatory mechanisms as a
significant threat contributing to the extinction risk of the four
scalloped hammerhead shark DPSs. Existing regulatory mechanisms may
include Federal, state, and international regulations. Below we briefly
summarize our findings regarding our evaluation of current and relevant
domestic and international management measures that affect these four
scalloped hammerhead shark DPSs. More information on these domestic and
international management measures can
[[Page 38233]]
be found in the Status Review Report and Proposed Rule (78 FR 20718).
For the Central & SW Atlantic DPS, we identified the inadequacy of
current regulatory mechanisms as a moderate risk, with illegal fishing
significantly contributing to the DPS' risk of extinction. Many foreign
commercial and artisanal fisheries operate within the range of this
DPS, with little to no regulatory oversight, and thus regulatory
mechanisms are likely inadequate to reduce the significant threat of
overutilization to the scalloped hammerhead shark population. For
example, artisanal gillnet fisheries, known for their substantial
bycatch problems, are still active in Central America, with many
allowed to operate in inshore nursery areas. Due in large part to the
number of sovereign states found in this region, the management of
shark species in Central America and the Caribbean remains largely
disjointed, with some countries lacking basic fisheries regulations
(Kyne et al., 2012). Other countries lack the capabilities to enforce
what has already been implemented. For example, in May 2012, the
Honduran navy seized hundreds of shark fins from fishers operating
illegally within the borders of its shark sanctuary. As Kyne et al.
(2012) reports, it is basically common practice to move shark fins
across borders for sale in countries where enforcement is essentially
lacking in this region. In South America, Brazil has banned finning,
but continues to find evidence of illegal fishing in its waters. In
Bel[eacute]m in May 2012, the Brazilian Institute of Environmental and
Renewable Natural Resources (IBAMA) seized around 7.7 mt of illegally
obtained dried shark fins intended for export to China (Nickel, 2012).
A few months later, IBAMA confiscated more than 5 mt of illegal shark
fins in Rio Grande do Norte (Rocha de Medeiros, 2012), suggesting
current regulations and enforcement are not adequate to deter or
prevent illegal shark finning. In fact, it is estimated that illegal
fishing constitutes 32 percent of the Southwest Atlantic region's catch
(based on estimates of illegal and unreported catch averaged over the
years of 2000 to 2003; Agnew et al., 2009).
In addition, heavy industrial fishing off the coast of Brazil, with
the use of drift gillnets and longlines, remains largely unregulated,
as does the intensive artisanal fishery, which accounts for about 50
percent of the fishing sector. Brazil currently has regulations
limiting the extension of pelagic gillnets and prohibiting trawls in
waters less than 3 nautical miles (5.6 km) from the coast; however, as
is the case with many regulations affecting this DPS, inadequate
enforcement of these laws has led to continued fishing in these inshore
nursery areas and resultant observed declines in both adult and
juvenile scalloped hammerhead shark abundance (Amorim et al., 1998;
Kotas, 2008; CITES, 2010). Given the information above, the ERA team
ranked both illegal fishing and the inadequacy of current regulatory
mechanisms as moderate risks. We agree that these factors, in
combination with others (such as overutilization and low species
productivity), likely contribute significantly to the Central & SW
Atlantic DPS' risk of extinction.
For the Indo-West Pacific DPS, we identified the inadequacy of
current regulatory mechanisms as a moderate risk, with illegal fishing
significantly contributing to the DPS' risk of extinction. Multiple
RFMOs cover the Indo-West Pacific DPS area with requirements of full
utilization of any retained catches of sharks and regulations that
onboard fins cannot weigh more than 5 percent of the weight of the
sharks. These regulations are aimed at curbing the practice of shark
finning, but do not prohibit the fishing of sharks. In addition, these
regulations may not even be effective in stopping finning of scalloped
hammerhead sharks, as a recent study found the scalloped hammerhead
shark to have an average wet-fin-to-round-mass ratio of only 2.13
percent (n=81; Biery and Pauly, 2012). This ratio suggests that fishing
vessels operating in these RFMO convention areas would be able to land
more scalloped hammerhead shark fins than bodies and still pass
inspection. There are no scalloped hammerhead-specific RFMO management
measures in place for this region, even though this DPS is heavily
fished. Consequently, this species has seen population declines off the
coasts of South Africa and Australia, so much so that in 2012, New
South Wales, Australia, listed it as an endangered species.
Few countries within this DPS' range have regulations aimed at
controlling the exploitation of shark species. Oman, Seychelles,
Australia, South Africa, Taiwan, and most recently India all have
measures to prevent the waste of shark parts and discourage finning.
The Maldives have designated their waters as a shark sanctuary. A
number of Pacific Island countries (including U.S. territories) have
also created shark sanctuaries, prohibited shark fishing, or have
strong management measures to control the exploitation of sharks in
their respective waters, including Tokelau, Palau, Marshall Islands,
American Samoa, CNMI, Cook Islands, and French Polynesia, although
effective enforcement of these regulations is an issue for some of the
countries. Additionally, many of the top shark fishing nations and
world's exporters of fins are also located within the range of this
DPS, and have little to no regulation (or enforcement) of their
expansive shark fisheries. For example, off northern Madagascar, where
there is an active artisanal fin fishery, sharks are an open access
resource, with no restrictions on gear, established quotas, or fishing
area closures (Robinson and Sauer, 2011). Indonesia, which is the top
shark fishing nation in the world, does not currently have restrictions
pertaining to shark fishing or finning. Indonesian small-scale
fisheries, which account for around 90 percent of the total fisheries
production, are not required to have fishing permits (Varkey et al.,
2010), nor are their vessels likely to have insulated fish holds or
refrigeration units (Tull, 2009), increasing the incentive for shark
finning by this sector (Lack and Sant, 2012). Ultimately, their fishing
activities remain largely unreported (Varkey et al., 2010), which
suggests that the estimates of Indonesian shark catches are greatly
underestimated. In fact, in Raja Ampat, an archipelago in Eastern
Indonesia, Varkey et al. (2010) estimated that 44 percent of the total
shark catch in 2006 was unreported (including small-scale and
commercial fisheries' unreported catch and illegal, unregulated, and
unreported (IUU) fishing). Although Indonesia adopted an FAO
recommended shark conservation plan (National Plan of Action--Shark) in
2010, due to budget constraints, it can only focus its implementation
of key conservation actions in one area, East Lombok (Satria et al.,
2011). Due to this historical and current absence of shark management
measures, especially in the small-scale fisheries sector, many of the
larger shark species in Indonesian waters have already been severely
overfished (Field et al., 2009).
In addition to the largely unregulated fishing of this DPS, illegal
fishing, especially for shark fins, has been identified as a
significant contributor to the extinction risk of this DPS. Scalloped
hammerhead sharks are valued for their large fins, which fetch a high
commercial value in the Asian shark fin trade (Abercrombie et al.,
2005) and comprise the second most traded fin category in the Hong Kong
market (Clarke et al., 2006). Due to this profit incentive, there have
been many reports of finning and seizures of illegally gained shark
fins throughout the range of this DPS, including in
[[Page 38234]]
waters of Australia (Field et al., 2009), Mozambique, South Africa, Bay
of Bengal, Arabian Gulf, Palau, the Federated States of Micronesia
(FSM) (Paul, 2009), and Somalia (HSTF, 2006). Agnew et al. (2009)
provided regional estimates of illegal fishing (using FAO fishing areas
as regions) and found the Western Central Pacific (Area 71) and Eastern
Indian Ocean (Area 57) regions to have relatively high levels of
illegal fishing (compared to the rest of the regions), with illegal and
unreported catch constituting 34 and 32 percent of the region's catch,
respectively.
Although the number of shark management and conservation measures
for this DPS is on the rise, the ERA team noted that the current
protections that they afford the Indo-West Pacific DPS may be minimal
if illegal fishing is not controlled. We agree and conclude that the
inadequacy of current regulatory mechanisms, in the form of ineffective
enforcement of current regulations or lack of existing regulatory
measures, in combination with illegal fishing, is contributing
significantly to the risk of extinction of this DPS.
For the Eastern Atlantic DPS, we identified the inadequacy of
current regulatory mechanisms as a moderate risk, with illegal fishing
significantly contributing to the DPS' risk of extinction. Although
regulations in Europe appear to be moving towards the sustainable use
and conservation of shark species, these strict and enforceable
regulations do not extend farther south in the Eastern Atlantic, where
the majority of scalloped hammerhead sharks are caught. Some western
African countries have attempted to impose restrictions on shark
fishing; however, these regulations have exceptions, loopholes, or poor
enforcement. For example, Mauritania has created a 6,000 km\2\ coastal
sanctuary for sharks and rays, prohibiting targeted shark fishing in
this region; however, sharks, such as the scalloped hammerhead, may be
caught as bycatch in nets. Many other countries, such as Namibia,
Guinea, Cape-Verde, Sierra Leone, Nigeria, and Gambia, have shark
finning bans, but even with this regulation, scalloped hammerhead
sharks are caught with little to no restrictions on harvest numbers.
According to Diop and Dossa (2011), fishing in the SRFC region now
occurs year-round, including during shark breeding season, and, as
such, both pregnant and juvenile sharks may be fished, with shark fins
from fetuses included on balance sheets at landing areas. Many of these
state-level management measures also lack standardization at the
regional level (Diop and Dossa, 2011), which weakens some of their
effectiveness. For example, Sierra Leone and Guinea both require shark
fishing licenses; however, these licenses are much cheaper in Sierra
Leone, and as a result, fishers from Guinea fish for sharks in Sierra
Leone (Diop and Dossa, 2011). Also, although many of these countries
have recently adopted FAO recommended National Plan of Action--Sharks,
their shark fishery management plans are still in the early
implementation phase, and with few resources for monitoring and
managing shark fisheries, the benefits to sharks from these regulatory
mechanisms (such as reducing the threat of overutilization) have yet to
be realized (Diop and Dossa, 2011). In addition, reports of illegal
fishing are prevalent in the waters off West Africa and account for
around 37 percent of the region's catch, the highest regional estimate
of illegal fishing worldwide (Agnew et al., 2009; EJF, 2012). The
available data suggest that illegal fishing is a serious and rampant
problem in West African waters, and with lack of enforcement of
existing regulations and weak management of the fisheries in this area,
as evidenced by the observed substantial and largely unregulated
catches of both adult and juvenile hammerheads by artisanal fishers in
this region, we agree with the ERA team's findings and conclude that
the combination of both the inadequacy of existing regulatory measures
and illegal fishing are contributing significantly to the risk of
extinction of this DPS.
For the Eastern Pacific DPS, we identified the inadequacy of
current regulatory mechanisms as a moderate risk, with illegal fishing
significantly contributing to the DPS' risk of extinction. Similar to
the RFMO regulations for the Indo-West Pacific DPS, the RFMO that
covers the Eastern Pacific DPS area, the Inter-American Tropical Tuna
Commission (IATTC), requires the full utilization of any retained
catches of sharks, with a regulation that onboard fins cannot weigh
more than 5 percent of the weight of the sharks. However, in 2013, we
published a report to Congress that identified nations that engaged in
IUU fishing, based on violations of international conservation and
management measures during 2011 and/or 2012, and identified three
Colombian, one Ecuadorian, one Panamanian, and two Venezuelan-flagged
vessels that violated IATTC resolutions and illegally finned sharks,
discarding the carcasses at sea (NMFS, 2013).
Shark finning and discarding the corresponding carcass at sea is
also illegal in Colombia, Costa Rica, and El Salvador. Panama requires
industrial fishers to land sharks with fins naturally attached, but
artisanal fishers may separate the fins from the carcass, as long as
they satisfy the 5 percent weight rule. Although the purpose of these
regulations is to help deter finning, they do not protect sharks from
overfishing. In addition, many of the other current regulatory
mechanisms found in Central American countries in the Eastern Pacific
may not adequately protect scalloped hammerhead sharks from
overutilization. For example, although Ecuador has banned directed
fishing for sharks in its waters, sharks caught in ``continental''
(i.e., not Galapagos) fisheries may be landed if bycaught. Panama still
allows directed artisanal gillnet fishing for juvenile and adult
sharks, including S. lewini (Arriatti, 2011), as does the Mexican State
of Sinaloa, where the most popular gears in the elasmobranch fishery
are bottom set gillnets and longlines (Bizzarro et al., 2009). Bottom
fixed gillnets are also allowed in the artisanal fishery around ``Tres
Marias'' Island and Isabel Island in the Central Mexican Pacific, with
bycatch dominated by juvenile S. lewini (Perez-Jimenez et al., 2005).
Although Mexico is working towards promoting a sustainable shark and
ray fishery, the current legislation (NOM-029-PESCA-2006) allows
artisanal fishers to target hammerheads with longlines within 10 nm
from the shore. However, given the artisanal fleets' already
substantial fishing effort on sharks (artisanal vessels contribute 40
percent of the marine domestic production and comprise up to 80 percent
of the elasmobranch fishing effort; Cartamil et al., 2011), this
increase in fishing opportunity may further threaten the Eastern
Pacific DPS, especially since 62 percent of the total Mexican domestic
shark production comes from the Pacific Ocean (NOM-029-PESCA-2006). In
addition, many of the new regulations are not well understood by
current Mexican fishers, with very few fishers found to be in
compliance with them (Cartamil et al., 2011). Recently, Mexico issued
regulations prohibiting shark fishing in its Pacific Ocean waters, from
May 1 to July 31 (DOF, 2012).
More restrictive regulations, such as complete moratoriums on shark
fishing, can be found within this DPS' range around Honduras and in the
Eastern Tropical Pacific Seascape. However, there is evidence of
illegal fishing by both local fishers and industrial longliners within
these marine protected areas. For example, in Cocos Island National
Park, off Costa Rica, a ``no take'' zone was established in 1992,
[[Page 38235]]
yet between 2004 and 2009, 1,512 km of illegal longlines, 48,552 hooks,
and 459 hooked sharks were documented in the park (Friedlander et al.,
2012). Populations of S. lewini declined in this protected area by an
estimated 71 percent from 1992 to 2004 (Myers et al., nd). Data
collected by dive masters since 1992 place the decline in hammerhead
abundance at more than 11 fold from peak relative abundance numbers in
the park (Friedlander et al., 2012).
From 1998-2004, Jacquet et al. (2008) found Ecuadorian shark fin
exports exceeded mainland catches by 44 percent (average of 3,850 mt
per year), and suggested that this discrepancy may have been a result
of illegal fishing on protected Galapagos sharks. New information that
we received since publication of the Proposed Rule shows a decline in
the relative abundance of S. lewini from 2003 to 2011 around the
Malpelo Wildlife Sanctuary, off Colombia; however, the decrease was not
strongly negative (Soler et al., 2013). From 2004 to 2011, Soler et al.
(2013) reported estimates of relative abundance ranging from 30
(hammerheads/dive) to 17 (hammerheads/dive) and suggested the decrease
in hammerhead abundance was likely due to overfishing and poaching in
the surrounding waters. Evidence of such poaching occurred in November
2011, when Colombian environmental authorities reported a large shark
massacre in this wildlife sanctuary. The divers counted 10 illegal
Costa Rican trawler boats in the wildlife sanctuary and estimated that
as many as 2,000 scalloped hammerhead, Gal[aacute]pagos and silky
sharks may have been killed for their fins (Brodzinsky, 2011).
Although shark finning is discouraged in the waters of this DPS,
the ERA team voiced concerns about the allowed use of fishing gear that
is especially effective at catching schools of scalloped hammerhead
sharks within inshore and nursery areas in this DPS' range. Thus, the
ERA team ranked the threat of inadequate current regulatory mechanisms
as a moderate risk. Additionally, without stronger enforcement,
especially in the marine protected areas in the Eastern Tropical
Pacific, the known ``hot spots'' of scalloped hammerhead aggregations,
the inadequacy of existing regulatory mechanisms will continue to
enable the substantial illegal fishing, which we concluded is a threat
contributing significantly to this DPS' risk of extinction.
Other Natural or Man-Made Factors Affecting Its Continued Existence
We also identified other natural factors, such as the species' high
at-vessel fishing mortality and schooling behavior, as contributing to
the risk of extinction for each DPS when combined with other threats
such as overutilization and illegal fishing. Scalloped hammerhead
sharks are obligate ram ventilators (they must keep moving to ensure a
constant supply of oxygenated water) and suffer very high at-vessel
fishing mortality in bottom longline fisheries (Morgan and Burgess,
2007; Macbeth et al., 2009) and in beach net programs (Reid and Krogh,
1992; Dudley and Simpfendorfer, 2006). Their schooling behavior also
increases the shark's likelihood of being caught in large numbers. For
example, fishers in Costa Rica were documented using gillnets in
shallow waters to target schools of juveniles and neonates in these
nursery areas (Zanella et al., 2009). In Brazil, schools of neonates
and juveniles are caught in large numbers by coastal gillnets and
recreational fishers in inshore waters, and consequently their
abundance has significantly decreased over time (CITES, 2010). Off
South Africa, Dudley and Simpfendorfer (2006) reported significant
catches of newborn S. lewini by prawn trawlers, with estimates of 3,288
sharks in 1989 and 1,742 sharks in 1992.
This schooling behavior also makes the species a popular target for
illegal fishing activity, with fishers looking to catch large numbers
of scalloped hammerhead sharks (both adult and juveniles) quickly and
with relatively little effort. In the Malpelo Wildlife Sanctuary,
divers had reported sightings of schools of more than 200 hammerhead
sharks before the sanctuary became a recent target of illegal fishing
(Brodzinsky, 2011). Because this schooling behavior provides greater
access to large numbers of scalloped hammerhead sharks, the likelihood
of this species being overfished greatly increases. Given the species'
low fecundity, slow growth rate, and late maturity, it would likely
take decades for a given DPS to recover from large removals of
individuals. In the interim, the DPS would be exposed to demographic
risks that could lead to population collapse and possible extinction.
Thus, we identified the species' high at-vessel mortality and schooling
behavior as factors that work in combination with others, such as
current abundance and trends, heavy fishing pressure and
overutilization, inadequate regulatory mechanisms, and illegal fishing,
to significantly increase the four DPSs' risks of extinction.
Efforts Being Made To Protect the Four DPSs
Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to
take into account ``. . . efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State or foreign
nation, to protect such species, whether by predator control,
protection of habitat and food supply, or other conservation practices,
within any area under its jurisdiction or on the high seas.'' The ESA
therefore directs us to consider all conservation efforts being made to
conserve the species. The joint USFWS and NMFS Policy on Evaluation of
Conservation Efforts When Making Listing Decisions (``PECE Policy,'' 68
FR 15100; March 28, 2003) further identifies criteria we use to
determine whether formalized conservation efforts that have yet to be
implemented or to show effectiveness contribute to making listing
unnecessary, or to listing a species as threatened rather than
endangered. In determining whether a formalized conservation effort
contributes to a basis for not listing a species, or for listing a
species as threatened rather than endangered, we must evaluate whether
the conservation effort improves the status of the species under the
ESA. Two factors are key in that evaluation: (1) For those efforts yet
to be implemented, the certainty that the conservation effort will be
implemented, and (2) for those efforts that have not yet demonstrated
effectiveness, the certainty that the conservation effort will be
effective. The following is a brief review of the major conservation
efforts and an evaluation of whether these efforts are reducing or
eliminating threats by having a positive conservation benefit and thus
improving the status of the scalloped hammerhead shark DPSs.
We identified the increasing number of shark fin bans as one
potential effort to conserve the DPSs. The concern regarding the
practice of finning and its effect on global shark populations has been
growing both domestically and internationally. The push to stop shark
finning and curb the trade of shark fins is evident overseas and most
surprisingly in Asian countries, where the demand for shark fin soup is
highest. Just recently, China prohibited shark fins at all official
reception dinners (Ng, 2013). However, as many of these bans have just
recently been implemented, their effect on reducing the threat of S.
lewini overutilization and illegal fishing is unknown.
[[Page 38236]]
We also identified the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) listings as another
potential effort to conserve the DPSs. Since publication of the
Proposed Rule, member nations of CITES, referred to as ``Parties,''
voted in support of listing three species of hammerhead sharks
(scalloped, smooth, and great) in Appendix II--an action that means
increased protection, but still allows legal and sustainable trade. In
addition, S. lewini was submitted for inclusion on CITES Appendix III
by Costa Rica. These CITES listings will go into effect on September
14, 2014. At that time, export of their fins will require CITES permits
that ensure the products were legally acquired and that the Scientific
Authority of the State of export has advised that such export will not
be detrimental to the survival of that species. The countries of Guyana
and Yemen have entered reservations, which means that they are not
bound by CITES requirements when trading in these species with
countries not a party to CITES. Japan has also taken a reservation but
has stated that it will comply voluntarily with the CITES requirements
for export permits. Canada has also entered reservations but this is
temporary until they are able to implement domestic regulations.
Although these CITES listings will likely work towards creating
sustainable international trade in S. lewini products in the future,
their effect on reducing current threats to the point where an ESA
listing may be unnecessary or downgraded for any of the DPSs is
uncertain. As the CITES listings will only apply to international
trade, it is unclear if this effort will effectively reduce the threats
of overutilization by artisanal fisheries for domestic consumption, or
if these CITES listings will help promote stronger domestic regulatory
and conservation measures or curb illegal fishing for these four DPSs.
We support all conservation efforts currently in effect and those
that are planned for the near future, as mentioned above. However, we
cannot say with a high level of certainty that the conservation efforts
will be effective as required by the PECE policy (68 FR 15100, 28 March
2003). Therefore, we have determined that these efforts will not likely
alter the extinction risk of the four DPSs.
Final Listing Determination
Section 4(b)(1) of the ESA requires that NMFS make listing
determinations based solely on the best scientific and commercial data
available after conducting a review of the status of the species and
taking into account those efforts, if any, being made by any state or
foreign nation, or political subdivisions thereof, to protect and
conserve the species. We have reviewed the best available scientific
and commercial information including the petition, the Status Review
Report, peer review comments, public comments, and other available
published and unpublished information, and we have consulted with
species experts and individuals familiar with scalloped hammerhead
sharks.
For the reasons stated above, and as summarized here, we conclude
that: (1) Scalloped hammerhead sharks in the Central & SW Atlantic,
Eastern Atlantic, Indo-West Pacific, and Eastern Pacific meet the
discreteness and significance criteria for DPSs; (2) the Eastern
Atlantic and Eastern Pacific scalloped hammerhead shark DPSs are in
danger of extinction throughout their ranges; and (3) the Central & SW
Atlantic and Indo-West Pacific scalloped hammerhead shark DPSs are
likely to become endangered throughout their ranges in the foreseeable
future.
The scalloped hammerhead shark population segment occurring in the
Central & SW Atlantic is discrete from other population segments and
significant to the scalloped hammerhead species based on the following:
(1) Genetic differences between this population and those scalloped
hammerhead sharks inhabiting waters of the Pacific, Indian, and eastern
Atlantic oceans; (2) tagging studies that suggest limited distance
migrations along coastlines, continental margins, and submarine
features with no observed mixing between the Central & SW Atlantic
population and the NW Atlantic & GOM population, supporting the
conclusion of isolation from other populations; (3) fishery management
measures that are lacking for this DPS compared to NW Atlantic & GOM
DPS (with the exception of U.S. EEZ Caribbean), with significant
differences in control of S. lewini exploitation and regulatory
mechanisms across these international boundaries; and (4) evidence that
a loss of this segment would result in a significant gap in the range
of the taxon (from Caribbean to Uruguay), with oceanographic conditions
that would act as barriers to re-colonization, and tagging and genetic
studies that suggest the segment would unlikely be rapidly repopulated
through immigration.
The scalloped hammerhead shark population segment occurring in the
Eastern Atlantic is discrete from other population segments and
significant to the scalloped hammerhead species based on the following:
(1) Genetic differences between this population and those scalloped
hammerhead sharks inhabiting waters of the Pacific, Indian, and western
Atlantic oceans; (2) tagging studies that suggest limited distance
migrations along coastlines, continental margins, and submarine
features, with genetic studies that show migration around the southern
tip of Africa is rare (i.e., no mixing with those sharks found in the
Indian Ocean), supporting the conclusion of isolation from other
populations; and (3) evidence that loss of this segment would result in
a significant gap in the range of the taxon (from Mediterranean Sea to
Namibia), with oceanographic conditions that would act as barriers to
re-colonization, and tagging and genetic studies that suggest the
segment would unlikely be rapidly repopulated through immigration.
The scalloped hammerhead shark population segment occurring in the
Indo-West Pacific is discrete from other population segments and
significant to the scalloped hammerhead species based on the following:
(1) Genetic differences between this population and those scalloped
hammerhead sharks inhabiting waters of the Eastern Pacific and Atlantic
oceans; (2) tagging and genetic studies that show limited distance
migrations and support isolation from other populations, but suggest
males mix readily along coastlines and continental margins within the
range of this DPS due to the high connectivity of habitat; (3) fishery
management measures that are lacking for this DPS compared to those for
the Central Pacific DPS, with significant differences in control of S.
lewini exploitation and regulatory mechanisms across international
boundaries; and (4) evidence that loss of this segment would result in
a significant gap in the range of the taxon (from South Africa to Japan
and south to Australia and New Caledonia and neighboring island
countries), with oceanographic conditions that would act as barriers to
re-colonization, and tagging and genetic studies that suggest the
segment would unlikely be rapidly repopulated through immigration.
The scalloped hammerhead shark population segment occurring in the
Eastern Pacific is discrete from other population segments and
significant to the scalloped hammerhead species based on the following:
(1) Genetic differences between this population and those scalloped
hammerhead sharks inhabiting waters of the Indo-West Pacific, Central
Pacific, and Atlantic oceans; (2) tagging studies that suggest wide
movements around islands and
[[Page 38237]]
occasional long-distance dispersals between neighboring islands with
similar oceanographic conditions, but isolation from other DPSs by
bathymetric barriers and oceanographic conditions, supporting the
conclusion of isolation from other populations; and (3) evidence that
loss of this segment would result in a significant gap in the range of
the taxon (from southern CA, USA to Peru), with oceanographic
conditions that would act as barriers to re-colonization, and tagging
and genetic studies that suggest the segment would unlikely be rapidly
repopulated through immigration.
We have independently reviewed and evaluated the best available
scientific and commercial information related to the status of each
DPS, including the demographic risks and trends and the multiple
threats related to the factors set forth in the ESA Section 4(a)(1)(A)-
(E). As explained in the Proposed Rule (see 78 FR 20718, discussion of
Proposed Determinations), no portion of any DPS' range is considered
significant and we therefore have determined that no DPS is threatened
or endangered throughout a significant portion of its range. Our
determinations set forth above and summarized below are thus based on
the status of each DPS across its entire range. Based on our evaluation
of the status of each DPS and the threats to its persistence we
predicted the likelihood that each DPS is in danger of extinction
throughout all of its range now and in the foreseeable future (which
was defined as 50 years) (78 FR 20718). We considered each of the
statutory factors to determine whether it presented an extinction risk
to each DPS on its own. We also considered the combination of those
factors to determine whether they collectively contributed to the
extinction of each DPS. As required by the ESA, Section 4(b)(1)(a), we
also took into account efforts to protect scalloped hammerhead sharks
by states, foreign nations and others and evaluated whether those
efforts provide a conservation benefit to each DPS and reduced threats
to the extent that a DPS did not warrant listing or could be listed as
threatened rather than endangered. Our conclusions and final listing
determinations are based on a synthesis and integration of the
foregoing information, factors and considerations.
Below are the summaries of our final listing determinations:
We have determined that the Central & SW Atlantic DPS of the
scalloped hammerhead shark is not presently in danger of extinction,
but is likely to become so in the foreseeable future throughout all of
its range. Factors supporting a conclusion that this DPS is not
presently in danger of extinction include: (1) Low productivity rates
but moderate rebound potential to pelagic longline fisheries common
within the range of this DPS; (2) ICCAT recommendations slated for
implementation (or already implemented) by Contracting Parties that
offer protection for this species from ICCAT fishing vessels; (3)
regulations that limit the extension of pelagic gillnets and trawls,
shark fin bans, and prohibitions on shark fishing or the retention of
scalloped hammerhead sharks; and (4) evidence that sharks are still
present in significant enough numbers to be caught by commercial and
artisanal fisheries. Factors supporting a conclusion that the DPS is
likely to become in danger of extinction in the foreseeable future
include overutilization, inadequacy of existing regulatory mechanisms
and other natural or manmade factors, specifically: (1) Decreasing
catch trends suggesting population decline; (2) high susceptibility to
overfishing, especially given its schooling behavior, with artisanal
fisheries catching large numbers of juveniles in inshore and nursery
areas, likely affecting future recruitment to the DPS; (3) high at-
vessel mortality rate associated with incidental capture in fisheries
(resulting in further reduction of population productivity and
abundance); (4) popularity of the species in the shark fin trade; and
(5) limited regulatory mechanisms and/or weak enforcement in some
areas, leading to illegal fishing of the species and contributing to
the further decline of this DPS. Therefore, we are listing the Central
& SW Atlantic DPS of the scalloped hammerhead shark as threatened under
the ESA.
We have determined that the Indo-West Pacific DPS of scalloped
hammerhead sharks is not presently in danger of extinction, but is
likely to become so in the foreseeable future throughout all of its
range. Factors supporting a conclusion that this DPS is not presently
in danger of extinction include: (1) Relatively high reported catches
of the species off the coasts of South Africa and Queensland,
Australia; (2) still observed throughout the entire range of this DPS
with the overall population size uncertain given the expansive range of
this DPS; and (3) current regulations that prevent the waste of shark
parts and discourage finning in this region, with the number of shark
sanctuaries on the rise in the Western Pacific. Factors supporting a
conclusion that the DPS is likely to become in danger of extinction in
the foreseeable future include overutilization, inadequacy of existing
regulatory mechanisms and other natural or manmade factors,
specifically: (1) Decreases in CPUE of sharks off the coasts of South
Africa and Australia and in longline catch in Papua New Guinea and
Indonesian waters, suggesting localized population declines, (2) high
susceptibility to overfishing, especially given its schooling behavior,
in artisanal fisheries and industrial/commercial fisheries; (3) high
at-vessel mortality rate associated with incidental capture in
fisheries (resulting in further reduction of population productivity
and abundance); (4) popularity of the species in the shark fin trade;
and (5) inadequate regulatory mechanisms and/or weak enforcement of
current regulations in many areas, resulting in frequent reports of
illegal fishing of the species and contributing to the further decline
of this DPS. Therefore, we are listing the Indo-West Pacific DPS of the
scalloped hammerhead shark as threatened under the ESA.
We have determined that the Eastern Atlantic DPS of the scalloped
hammerhead shark is currently in danger of extinction throughout all of
its range. Factors supporting this conclusion include overutilization,
inadequacy of existing regulatory mechanisms and other natural or
manmade factors, specifically: (1) Reduced abundance and declining
population trends and catch; (2) low productivity rates; (3) high
susceptibility to overfishing, especially given its schooling behavior;
(4) significant historical removals of scalloped hammerhead sharks by
artisanal and industrial fisheries, with directed shark fisheries still
in operation and heavy fishing pressure despite evidence of species'
extirpations and declines of large hammerheads; (5) high at-vessel
mortality rate associated with incidental capture in fisheries
(resulting in further reduction of population productivity and
abundance); (6) popularity of the species in the shark fin trade; and
(7) inadequate regulatory mechanisms along the coast of West Africa,
with severe enforcement issues leading to heavy illegal fishing.
Therefore, we are listing the Eastern Atlantic DPS of the scalloped
hammerhead shark as endangered under the ESA.
We have determined that the Eastern Pacific DPS of the scalloped
hammerhead shark is also currently in danger of extinction throughout
all of its range. Factors supporting this conclusion include
overutilization, inadequacy of existing regulatory mechanisms and other
natural or
[[Page 38238]]
manmade factors, specifically: (1) Reduced abundance, declining
population trends and catch, and evidence of size truncation; (2) low
productivity rates; (3) high susceptibility to overfishing, especially
given its schooling behavior, with artisanal fisheries targeting
juveniles of the species in inshore and nursery areas; (4) high at-
vessel mortality rate associated with incidental capture in fisheries
(resulting in further reduction of population productivity and
abundance); (5) popularity of the species in the shark fin trade and
importance in Mexican artisanal fisheries operating in the Pacific; and
(6) limited regulatory mechanisms and weak enforcement in many areas,
leading to illegal fishing of the species, especially in protected
waters. Therefore, we are listing the Eastern Pacific DPS of the
scalloped hammerhead shark as endangered under the ESA.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery plans and actions (16 U.S.C.
1536(f)); concurrent designation of critical habitat if prudent and
determinable (16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to
consult with NMFS and to ensure its actions do not jeopardize the
species or result in adverse modification or destruction of critical
habitat should it be designated (16 U.S.C. 1536); and prohibitions on
taking (16 U.S.C. 1538). Recognition of the species' plight through
listing promotes conservation actions by Federal and state agencies,
foreign entities, private groups, and individuals.
Identifying ESA Section 7 Consultation Requirements
Section 7(a)(4) of the ESA requires Federal agencies to confer with
us on actions likely to jeopardize the continued existence of species
proposed for listing or result in the destruction or adverse
modification of proposed critical habitat. Once a species is listed as
threatened or endangered, section 7(a)(2) requires Federal agencies to
ensure that any actions they fund, authorize, or carry out are not
likely to jeopardize the continued existence of the species. Once
critical habitat is designated, section 7(a)(2) also requires Federal
agencies to ensure that they do not fund, authorize, or carry out any
actions that are likely to destroy or adversely modify that habitat.
Our section 7 regulations require the responsible Federal agency to
initiate formal consultation if a Federal action may affect a listed
species or its critical habitat (50 CFR 402.14(a)). Examples of Federal
actions that may affect the scalloped hammerhead shark DPSs include:
fishery harvest and management practices, military activities,
alternative energy projects, dredging in known scalloped hammerhead
nursery grounds, point and non-point source discharge of persistent
contaminants in known nursery grounds, toxic waste and other pollutant
disposal in known nursery grounds, and shoreline development in known
nursery grounds.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(3)) as: (1) The specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species, and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species.
Section 4(a)(3) of the ESA requires that, to the extent practicable
and determinable, critical habitat be designated concurrently with the
listing of a species. Designation of critical habitat must be based on
the best scientific data available and must take into consideration the
economic, national security, and other relevant impacts of specifying
any particular area as critical habitat.
In determining what areas qualify as critical habitat, 50 CFR
424.12(b) requires that we consider those physical or biological
features that are essential to the conservation of a given species
including ``space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, and rearing of offspring; and habitats that are protected
from disturbance or are representative of the historical geographical
and ecological distribution of a species.'' The regulations further
direct NMFS to ``focus on the principal biological or physical
constituent elements . . . that are essential to the conservation of
the species,'' and specify that the ``Known primary constituent
elements shall be listed with the critical habitat description.'' The
regulations identify physical and biological features as including:
``roost sites, nesting grounds, spawning sites, feeding sites, seasonal
wetland or dry land, water quality or quantity, host species or plant
pollinator, geological formation, vegetation type, tide, and specific
soil types.''
In our proposal to list the scalloped hammerhead shark DPSs (78 FR
20718), we requested information on the identification of specific
areas that meet the definition of critical habitat defined above for
the Central & SW Atlantic DPS, Indo-West Pacific DPS, and Eastern
Pacific DPS. These DPSs are the only DPSs that occur in U.S. waters or
its territories. We also solicited biological and economic information
relevant to making a critical habitat designation for each DPS. We have
reviewed the comments provided and the best available scientific
information. We conclude that critical habitat is not determinable at
this time for the following reasons: (1) Sufficient information is not
currently available to assess impacts of designation; and (2)
sufficient information is not currently available regarding the
physical and biological features essential to conservation.
ESA Section 9 Take Prohibitions
Because we are listing the Eastern Pacific DPS and Eastern Atlantic
DPS of scalloped hammerhead sharks as endangered, all of the take
prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) will
apply. These include prohibitions against importing, exporting,
engaging in foreign or interstate commerce, or ``taking'' of the
species. ``Take'' is defined under the ESA as ``to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
to engage in any such conduct.'' These prohibitions apply to all
persons, organizations and entities subject to the jurisdiction of the
United States, including in the United States and its territorial seas,
or on the high seas.
In the case of threatened species, ESA section 4(d) requires the
Secretary to issue regulations deemed necessary and appropriate for the
conservation of the species. We have evaluated the needs of and threats
to the Central & SW Atlantic DPS and Indo-West Pacific DPS and have
determined that protective regulations pursuant to section 4(d) are not
currently necessary and appropriate for the conservation of either DPS.
The main threats identified for these two DPSs are overutilization
(high risk) and inadequate existing regulatory measures (especially
illegal fishing) (moderate risk). The threat of overutilization is
primarily a result of heavy fishing pressure by foreign industrial,
[[Page 38239]]
commercial and artisanal fisheries. Most of the commercial fishermen
under U.S. jurisdiction who could catch the Central & SW Atlantic DPS
are already prohibited from landing this DPS in the Atlantic Ocean,
including the Caribbean Sea. Starting in 2011, Atlantic Highly
Migratory Species (HMS) commercially-permitted vessels that have PLL
gear on board and dealers buying from these vessels have been
prohibited from retaining onboard, transshipping, landing, storing,
selling, or offering for sale any part or whole carcass of hammerhead
sharks of the family Sphyrnidae (except for the Sphyrna tiburo) (76 FR
53652; August 29, 2011). HMS fishermen using other types of gear who
fish for, retain, possess, sell, or intend to sell, scalloped
hammerhead sharks need a Federal Atlantic Directed or Incidental shark
limited access permit. These permits are administered under a limited
access program and we are no longer issuing new shark permits.
Additionally, HMS fishermen who have an HMS Commercial Caribbean Small
Boat permit (which allows fishing for and sales of HMS species within
the local U.S. Caribbean market) are currently prohibited from
retaining Atlantic sharks and are restricted to fishing with only rod
and reel, handline, and bandit gear under the permit (77 FR 59842;
October 1, 2012).
Recreational fishermen under U.S. jurisdiction are also prohibited
from retaining hammerhead sharks in the Atlantic, including the
Caribbean Sea, when tuna, swordfish or billfish are also retained (76
FR 53652; August 29, 2011). When tuna, swordfish or billfish are not
onboard, then recreational fishermen are only allowed to land one shark
per trip (and if it is a scalloped hammerhead shark, then it must be a
minimum size of 78 inches (6.5 feet; 198 cm) FL to ensure that
primarily mature individuals are retained).
In the western Pacific, scalloped hammerhead sharks are rarely
caught or seen around the U.S. Pacific Island Territories. Both CNMI
and Guam have banned the possession, sale, offer for sale, trade, and
distribution of shark fins. Guam also explicitly prohibits the take,
purchase, barter, transport, export, and import of shark fins. American
Samoa prohibits the possession, delivery, or transportation of any
shark species or shark body party. American Samoa also prohibits shark
fishing within three nautical miles of its shore. A lthough there are
no targeted shark fisheries in Guam, CNMI, or American Samoa, American
Samoa does have a limited entry longline fishery that operates within
the U.S. EEZ. However, this longline fishery is strictly managed and
regulated (see Miller et al., 2014), with only eight scalloped
hammerhead sharks observed caught in this fishery since 2006. There is
currently no longline fishery operating in the CNMI, and Guam has had a
50-100 nm longline exclusion zone in place since 1992. Guam also
prohibits drift gillnets in its fisheries. In terms of the Hawaii
longline fisheries, which operate in some areas of the Indo-West
Pacific DPS range, there is very low interaction with scalloped
hammerhead sharks. From 1994 to 2004, there were only 26 observed
interactions in the deep-set longline fishery (HLA, 2013). From 2004 to
the present, this number drops to three (HLA, 2013). Catch of scalloped
hammerhead sharks by U.S. vessels in the WCPFC convention area is also
very minimal (SPC, 2010; Miller et al. 2014). Overall, the significant
and adequate management measures that are in place for fishermen under
U.S. jurisdiction (including gear restrictions, permit and logbook
requirements, quota monitoring, bycatch measures, vessel monitoring
systems, and protected species workshop requirements), directly and
indirectly contribute to the very rare interactions between U.S.
fishing activities and the threatened DPSs. As such, we do not see
these activities as contributing significantly to the identified
threats of overutilization and inadequate regulatory measures. In
addition, we do not find that prohibiting these activities would have a
significant effect on the extinction risks of the threatened DPSs
(considering the U.S. interaction with the DPSs is negligible and the
DPS' risks of extinction are primarily a result of threats from foreign
fishing activities).
As mentioned previously, scalloped hammerhead sharks were included
on Appendix II of CITES at the 16 Conference of the CITES Parties in
March 2013, with the listing going into effect on September 14, 2014.
At that time, export of their fins will require CITES permits that
ensure the products were legally acquired and that the Scientific
Authority of the State of export has advised that such export will not
be detrimental to the survival of that species (after taking into
account factors such as its population status and trends, distribution,
harvest, and other biological and ecological elements). In other words,
trade of these DPSs will have to be monitored to ensure that the
species is maintained throughout its range at a level consistent with
its role in the ecosystem, and does not reach the level whereby
international trade would have to be prohibited to protect the species
from extinction. Although this CITES protection was not considered to
be an action that decreased the current listing status of the
threatened DPSs (due to its uncertain effects at reducing the threats
of foreign domestic overutilization and inadequate regulations) it does
help address the threat of foreign overutilization for the
international fin trade, ensuring that international trade of these
threatened DPSs is sustainable. Because the United States does not have
a significant presence in the international fin trade (U.S. exports and
imports of all species of shark fins comprise less than one percent of
the total number of fins globally exported and imported; see NMFS, 2012
and FAO, 2014) we have concluded that restrictions on U.S. trade of
these DPSs, in addition to the CITES requirements, are not necessary
and appropriate for the conservation of these DPSs.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that
requires us to identify, to the maximum extent practicable at the time
a species is listed, those activities that would or would not
constitute a violation of section 9 of the ESA. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within a species' range. We will
identify, to the extent known, specific activities that will not be
considered likely to result in violation of section 9, as well as
activities that will be considered likely to result in violation.
Based on the best available information, activities that we believe
could result in violation of section 9 prohibitions against ``take'' of
the Eastern Atlantic and Eastern Pacific DPSs include the following:
(1) Importing fins or any part of a scalloped hammerhead shark; (2)
exporting fins or any part of a scalloped hammerhead shark; (3) taking
fins or any part of a scalloped hammerhead shark, including fishing
for, capturing, handling, or possessing scalloped hammerhead sharks or
fins; (4) selling fins or any part of a scalloped hammerhead shark; (5)
delivery of fins or any part of a scalloped hammerhead shark; and (6)
impacting the water column attributes in scalloped hammerhead nursery
grounds (e.g., coastal development and habitat alterations, point and
non-point source discharge of persistent contaminants, toxic waste and
other pollutant disposal). We emphasize that whether a violation
results from a particular activity is entirely dependent
[[Page 38240]]
upon the facts and circumstances of each incident. The mere fact that
an activity may fall within one of these categories does not mean that
the specific activity will cause a violation; due to such factors as
location and scope, specific actions may not result in direct or
indirect adverse effects on the species. Further, an activity not
listed may in fact result in a violation.
ESA sections 10(a)(1)(A) and (B) provide us with authority to grant
exceptions to the ESA's section 9 ``take'' prohibitions. Section
10(a)(1)(A) scientific research and enhancement permits may be issued
to entities (Federal and non-Federal) for scientific purposes or to
enhance the propagation or survival of the species. The type of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets the Central
& SW Atlantic DPS, Indo-West Pacific DPS, Eastern Atlantic DPS, or
Eastern Pacific DPS.
ESA Section 10(a)(1)(B) incidental take permits may be issued to
non-Federal entities performing activities that may incidentally take
listed species, as long as the taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.
Based on the best available information, we believe the following
actions will not result in a violation of ESA section 9: (1) Take or
possession of scalloped hammerhead sharks acquired lawfully by permit
issued by NMFS pursuant to section 10 of the ESA, or take in accordance
with the terms of an incidental take statement in a biological opinion
pursuant to section 7 of the ESA; and (2) Federally approved projects
that involve activities such as managed fisheries or the alteration of
water column attributes within known scalloped hammerhead nursery
grounds for which consultation under section 7 of the ESA has been
completed and determined not likely to jeopardize the continued
existence of the scalloped hammerhead DPS, and when such activity is
conducted in accordance with any terms and conditions given by NMFS in
an incidental take statement in a biological opinion pursuant to
section 7 of the ESA.
Policies on Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing a
minimum peer review standard. Similarly, a joint NMFS/FWS policy (59 FR
34270; July 1, 1994) requires us to solicit independent expert review
from qualified specialists, concurrent with the public comment period.
The intent of the peer review policies is to ensure that listings are
based on the best scientific and commercial data available. We formally
solicited the expert opinion of three appropriate and independent
specialists regarding scientific or commercial data or assumptions
related to the information considered for listing. We received comments
from two of these scientists and their comments were incorporated into
the status review report and this final rule. We conclude that these
experts' reviews satisfy the requirements for ``adequate [prior] peer
review'' contained in the Bulletin (sec. II.2.), as well as the
Services' joint policy.
Information Solicited
We request interested persons to submit relevant information
related to the identification of critical habitat and essential
physical or biological features, as well as economic or other relevant
impacts of designation of critical habitat for the Central & SW
Atlantic DPS, Indo-West Pacific DPS, and Eastern Pacific DPS. We
solicit information from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party (see ADDRESSES).
References
A complete list of all references cited herein is available upon
request (see FOR FURTHER INFORMATION CONTACT).
Classification
National Environmental Policy Act
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir.
1981), we have concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (See NOAA Administrative Order 216-6).
Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under Executive
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction
Act.
Executive Order 13132, Federalism
Executive Order 13132 requires agencies to take into account any
federalism impacts of regulations under development. It includes
specific consultation directives for situations where a regulation will
preempt state law, or impose substantial direct compliance costs on
state and local governments (unless required by statue). Neither of
those circumstances is applicable to this final listing determination.
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: June 27, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 224
are amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, amend the table in paragraph (e) by adding new
entries for two species in alphabetical order under the ``Fishes''
table subheading to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) The threatened species under the jurisdiction of the Secretary
of Commerce are:
[[Page 38241]]
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Shark, scalloped hammerhead Sphyrna lewini. Scalloped hammerhead [Insert FR page NA NA
(Central & Southwest sharks originating number where
Atlantic DPS). from the Central & the document
Southwest Atlantic begins], July
Ocean, including 3, 2014.
all waters of the
Caribbean Sea, the
Bahamas' EEZ off
the coast of
Florida, the U.S.
EEZ off Puerto Rico
and the U.S. Virgin
Islands, and Cuba's
EEZ, and further
delineated by the
following boundary
lines: bounded to
the north by
28[deg] N. lat., to
the east by 30[deg]
W. long., and to
the south by
36[deg] S. lat.
Shark, scalloped hammerhead Sphyrna lewini. Scalloped hammerhead [Insert FR page NA NA
(Indo-West Pacific DPS). sharks originating number where
from the Indo-West the document
Pacific Ocean, begins], July
delineated by the 3, 2014.
following boundary
lines: bounded to
the south by
36[deg] S. lat., to
the west by 20[deg]
E. long., and to
the north by
40[deg] N. lat. In
the east, the
boundary line
extends from
175[deg] E. long.
due south to
10[deg] N. lat.,
then due east along
10[deg] N. lat. to
150[deg] W. long.,
then due south to
4[deg] S. lat.,
then due east along
4[deg] S. lat. to
130[deg] W. long,
and then extends
due south along
130[deg] W. long.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
* * * * *
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
3. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq. and 16 U.S.C. 1361 et seq.
0
4. In Sec. 224.101, amend the table in paragraph (h) by adding new
entries for two species in alphabetical order under the ``Fishes''
table subheading to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) The endangered species under the jurisdiction of the Secretary
of Commerce are:
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes*
* * * * * * *
Shark, scalloped hammerhead Sphyrna lewini. Scalloped hammerhead [Insert FR page NA NA
(Eastern Atlantic DPS). sharks originating number where
from the Eastern the document
Atlantic Ocean, begins], July
including all 3, 2014.
waters of the
Mediterranean Sea,
and delineated by
the following
boundary lines:
bounded to the west
by 30[deg] W.
long., to the north
by 40[deg] N. lat.,
to the south by
36[deg] S. lat.,
and to the east by
20[deg] E. long.
[[Page 38242]]
Shark, scalloped hammerhead Sphyrna lewini. Scalloped hammerhead [Insert FR page NA NA
(Eastern Pacific DPS). sharks originating number where
from the Eastern the document
Pacific Ocean, begins], July
delineated by the 3, 2014.
following boundary
lines: bounded to
the north by
40[deg] N lat. and
to the south by
36[deg] S lat. The
western boundary
line extends from
140[deg] W. long.
due south to
10[deg] N., then
due west along
10[deg] N. lat. to
150[deg] W. long.,
then due south to
4[deg] S. lat.,
then due east along
4[deg] S. lat. to
130[deg] W. long,
and then extends
due south along
130[deg] W. long.
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
* * * * *
[FR Doc. 2014-15710 Filed 7-2-14; 8:45 am]
BILLING CODE 3510-22-P