Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Scalloped Hammerhead Shark as Threatened or Endangered Under the Endangered Species Act, 72891-72896 [2011-30599]

Download as PDF Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules imaged documents, instead of word processing documents, the ‘‘pdf’’ versions of the documents are word searchable. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. Terry Shelton, Associate Administrator for the National Center for Statistics and Analysis. [FR Doc. 2011–30277 Filed 11–25–11; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 111025652–1657–01] RIN 0648–XA798 Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Scalloped Hammerhead Shark as Threatened or Endangered Under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: 90-day petition finding, request for information, and initiation of status review. AGENCY: We, NMFS, announce a 90day finding on a petition to list the scalloped hammerhead shark (Sphyrna lewini) or, in the alternative, multiple distinct population segments (DPSs) of the scalloped hammerhead shark as threatened or endangered under the Endangered Species Act (ESA), and to designate critical habitat concurrently with the listing. We find that the petition and information in our files present substantial scientific or commercial information indicating that the petitioned action may be warranted. We will conduct a status review of the species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species from any interested party. DATES: Information and comments on the subject action must be received by January 27, 2012. ADDRESSES: You may submit comments, information, or data, identified by pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 SUMMARY: VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 ‘‘NOAA–NMFS–2011–0261’’ by any one of the following methods: • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal https:// www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the ‘‘submit a comment’’ icon, then enter ‘‘NOAA–NMFS–2011–0261’’ in the keyword search. Locate the document you wish to comment on from the resulting list and click on the ‘‘Submit a Comment’’ icon on the right of that line. • Mail or hand-delivery: Office of Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 20910. Instructions: All comments received are a part of the public record and may be posted to https://www.regulations.gov without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: 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. Copies of the petition are available upon request (see ADDRESSES, above). ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 72891 of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a ‘‘positive 90-day finding’’), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a ‘‘may be warranted’’ finding does not prejudge the outcome of the status review. Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS–U.S. Fish and Wildlife Service (USFWS) (jointly, ‘‘the Services’’) policy clarifies the agencies’ interpretation of the phrase ‘‘distinct population segment’’ for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is ‘‘endangered’’ if it is in danger of extinction throughout all or a significant portion of its range, and ‘‘threatened’’ if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species’ existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define ‘‘substantial information’’ in the context of reviewing E:\FR\FM\28NOP1.SGM 28NOP1 pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 72892 Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). Judicial decisions have clarified the appropriate scope and limitations of the Services’ review of petitions at the 90day finding stage, in making a determination that a petitioned action ‘‘may be’’ warranted. As a general matter, these decisions hold that a petition need not establish a ‘‘strong likelihood’’ or a ‘‘high probability’’ that a species is either threatened or endangered to support a positive 90-day finding. We evaluate the petitioners’ request based upon the information in the petition including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners’ sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition’s information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners’ assertions. In other words, conclusive information indicating the species may meet the ESA’s requirements for listing is not required to make a positive 90day finding. We will not conclude that a lack of specific information alone VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 negates a positive 90-day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue. To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a ‘‘species’’ eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk that is cause for concern; this may be indicated in information expressly discussing the species’ status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1). Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response. Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but the classification alone may not provide the rationale for a PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species’ conservation status do ‘‘not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act’’ because NatureServe assessments ‘‘have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide’’ (https:// www.natureserve.org/prodServices/ statusAssessment.jsp). Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above. Distribution and Life History of the Scalloped Hammerhead Shark The scalloped hammerhead shark is a circumglobal species that lives in coastal warm temperate and tropical seas. It occurs over continental and insular shelves, as well as adjacent deep waters, but is seldom found in waters cooler than 22 °C (Compagno, 1984; Schulze-Haugen et al., 2003). Scalloped hammerhead sharks are highly mobile and partly migratory and are likely the most abundant of the hammerhead species (Maguire et al., 2006). However, Maguire et al. (2006) also notes that ‘‘although its worldwide distribution and known high abundance gives the species some protection globally, the risk of local depletions remains a serious concern.’’ In the western Atlantic Ocean, the scalloped hammerhead range extends from the Northeast coast of the United States (from New Jersey to Florida) to Brazil, including the Gulf of Mexico and Caribbean Sea. In the eastern Atlantic, it can be found from the Mediterranean Sea to Namibia. Populations in the Indian Ocean are found in the following locations: South Africa and the Red Sea to Pakistan, India, and Myanmar, and in the western Pacific the scalloped hammerhead can be found from Japan and China to New Caledonia, including throughout the Philippines, Indonesia, and off Australia. Distribution in the eastern Pacific Ocean extends from the coast of southern California (U.S.), including the Gulf of California, to Ecuador and possibly Peru (Compagno, 1984), and off waters of Hawaii (U.S.) and Tahiti. The general life history pattern of the scalloped hammerhead shark is that of a long lived (oldest known sharks of both sexes aged at 30.5 years; Piercy et al., 2007), slow growing, and late E:\FR\FM\28NOP1.SGM 28NOP1 pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules maturing species. The scalloped hammerhead shark has a laterally expanded head that resembles a hammer, hence the common name ‘‘hammerhead,’’ and belongs to the Sphyrnidae family. The scalloped hammerhead shark is distinguished from other hammerheads by a marked central indentation on the anterior margin of the head, along with two more indentations on each side of this central indentation, giving the head a ‘‘scalloped’’ appearance. It has a broadly arched mouth and the rear margin of the head is slightly swept backward. The dentition of the hammerhead consists of small, narrow, and triangular teeth with smooth edges (often slightly serrated in larger individuals), and is similar in both jaws. The front teeth are erect while subsequent teeth have oblique cusps, and the lower teeth are more erect than the upper teeth (Florida Museum of Natural History, 2011). The body of the scalloped hammerhead is fusiform, with a large first dorsal fin and low second dorsal and pelvic fins. The first dorsal fin is moderately hooked with its origin over or slightly behind the pectoral fin insertions and the rear tip in front of the pelvic fin origins. The height of the second dorsal fin is less than the anal fin height and has a posterior margin that is approximately twice the height of the fin, with the free rear tip almost reaching the precaudal pit. The pelvic fins have relatively straight rear margins while the anal fin is deeply notched on the posterior margin (Compagno, 1984). The scalloped hammerhead generally has a uniform gray, grayish brown, bronze, or olive coloration on top of the body that shades to white on the underside with dusky or black pectoral fin tips. The oldest aged scalloped hammerhead sharks had lengths of 241 cm (females) and 234 cm (males) (Piercy et al., 2007), but the scalloped hammerhead shark can reach lengths of up to 365–420 cm (Compagno, 1984). The estimates on the exact age and length at sexual maturity for the scalloped hammerhead vary widely by region. In the Gulf of Mexico, Branstetter (1987) estimated that females mature around 270 cm, or about 15 years of age, and males mature around 180 cm, or 9–10 years of age. In Northeastern Taiwan waters, Chen et al. (1990) calculated age at maturity to be 4 years for females and 3.8 years for males, corresponding to lengths of 210 cm and 198 cm, respectively. Zeeberg et al. (2006) considered hammerheads greater than 140 cm to be mature in Northwest Africa, while off the coast of northern Australia, males are thought to VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 reach maturity at 150 cm and females at 200 cm (Stevens and Lyle, 1989). On the east coast of South Africa, observed median length at maturity for scalloped hammerheads was 184 cm for females and 161 cm for males, with age estimated around 11 years (Dudley and Simpfendorfer, 2006). While it may appear that maturity estimates vary by region, it is unclear whether these differences are truly biological or a result of differences in band interpretations in aging methodology approaches (Piercy et al., 2007). The scalloped hammerhead shark is viviparous (i.e., give birth to live young), with a gestation period of 9–12 months and likely followed by a oneyear resting period (Branstetter, 1987; Stevens and Lyle, 1989; Chen et al., 1990; Liu and Chen, 1999). Females move inshore to birth during the summer months, with litter sizes anywhere between 2 and 41 live pups (Branstetter, 1987; Stevens and Lyle, 1989; Hazin et al., 2001; White et al., 2008). Length at birth estimates for scalloped hammerheads range from 31– 50 cm (Branstetter, 1987; Stevens and Lyle, 1989; Chen et al., 1990; Zeeberg et al., 2006). Juveniles remain close to inshore waters but will migrate to deeper waters as they grow. Both juveniles and adult scalloped hammerhead sharks have been found to occur as solitary individuals, as pairs, and in schools. The schooling behavior has been documented during summer migrations off the coast of South Africa as well as in permanent resident populations, like those in the East China Sea (Compagno, 1984). Adult aggregations are most common offshore over seamounts and near islands, especially near the Galapagos, Malpelo, Cocos and Revillagigedo Islands, and within the Gulf of California (Compagno, 1984; CITES, 2010). The schooling behavior exhibited by scalloped hammerheads makes them vulnerable to being caught in large numbers (Hayes et al., 2009). The scalloped hammerhead shark is a ´ high trophic level predator (Cortes, 1999) and opportunistic feeder, with a diet that includes a wide variety of teleosts, cephalopods, crustaceans, and rays (Compagno, 1984). Analysis of Petition and Information Readily Available in NMFS Files We evaluated the information provided in the petition and readily available in our files to determine if the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted. The petition contains information on the species, including PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 72893 the taxonomy, species description, geographic distribution, habitat, population status and trends, and factors contributing to the species’ decline. The petition states that the primary threat to the scalloped hammerhead shark is exploitation by fishing, with the ongoing practice of ‘‘finning’’ of particular concern. The petitioners also assert that the lack of adequate regulatory protection programs worldwide, as well the species’ biological constraints, increase the susceptibility of the scalloped hammerhead shark to exploitation and extinction. Although data are not available to determine the actual number or size of the global population of scalloped hammerhead sharks, the information from our files and from the petitioners’ references suggest that the scalloped hammerhead underwent significant range-wide declines from historical abundance levels (Feretti et al., 2008; Hayes et al., 2009; CITES, 2010). According to the petition, at least three of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the scalloped hammerhead shark, specifically: (B) Overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. In the following sections, we use the information presented in the petition and in our files to determine whether the petitioned action may be warranted. We consider the global population of scalloped hammerhead sharks and will revisit the question of DPSs during a status review, if necessary. We summarize our analysis and conclusions regarding the information presented by the petitioner and in our files on the specific ESA section 4(a)(1) factors affecting the species’ risk of global extinction below. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Information from the petition and in our files suggests that the primary threat to the scalloped hammerhead shark is from fisheries. We refer to the U.S. and Palau CITES (2010) proposal to list S. lewini under Appendix II (henceforth, referred to as the CITES proposal) for much of the available abundance and catch trend data as this is a recent compilation of information on the species. Scalloped hammerhead sharks are both targeted and taken as bycatch in many global fisheries (e.g., bottom and pelagic longlines, coastal gillnet E:\FR\FM\28NOP1.SGM 28NOP1 pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 72894 Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules fisheries, artisanal fisheries). Because of their large fins with high fin noodle content (a gelatinous product used to make shark fin soup), scalloped hammerheads fetch a high commercial value in the Asian shark fin trade (Abercrombie et al., 2005). In Hong Kong, the world’s largest fin trade market, S. lewini and S. zygaena (smooth hammerhead) are mainly traded under the ‘‘Chun chi’’ market category, which also happens to be the second most traded fin category. Together, smooth and scalloped hammerheads are estimated to comprise 4–5 percent of the total fins traded in the Hong Kong market, which suggests that 1.3 to 2.7 million individuals of these species (equivalent to a biomass of 49,000–90,000 tons) are used in the Hong Kong fin trade annually (Clarke et al., 2006; Camhi et al., 2009). In the United States, scalloped hammerhead sharks are mainly caught as bycatch in longline and coastal gillnet fisheries and are known to suffer high mortality from capture. In the northwest Atlantic, on-line mortalities (for all age groups) were estimated at 91.4 percent and 93.8 percent (Mejuto et al., 2002; Morgan and Burgess, 2007; Camhi et al., 2009). Scalloped hammerheads have also become a popular target species of recreational fishermen in the last several decades. A recent stock assessment by Hayes et al. (2009) found that the northwestern Atlantic population in 1981, which ranged between 146,000 and 165,000 individuals, has since decreased to approximately 25,000–28,000 individuals in 2005, a level estimated to be at 45 percent of the biomass that would produce the maximum sustainable yield (MSY). Fishing mortality was also estimated to be 129 percent of fishing mortality associated with MSY. Given the data, Hayes et al. (2009) concluded that the northwestern Atlantic S. lewini stock is only 17 percent of the virgin stock size, or, in other words, has been depleted by approximately 83 percent since 1981. In another study, Myers et al. (2007) documented a 98 percent decline of S. lewini off the coast of North Carolina between 1972 and 2003 using standardized catch per unit effort (CPUE) data from shark targeted, fishery-independent surveys. Myers et al. (2007) remarks that the trends in abundance may be indicative of coastwide population changes, because the survey was situated ‘‘where it intercepts sharks on their seasonal migrations.’’ A time-series analysis conducted by Carlson et al. (2005) since 1995 suggests that the northwest VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 Atlantic population may be stabilized but at a very low level (CITES, 2010). According to the CITES proposal, overutilization of scalloped hammerheads has also been documented off the coast of Belize, leading to an observed decline in the abundance and size of hammerheads and prompting a halt in the Belize-based shark fishery. However, fishing pressure on hammerheads still continues as a result of Guatemalan fishermen entering Belizean waters (CITES, 2010). Further south, in Brazil, declines between 60 and 90 percent of adult female scalloped hammerheads have been reported from 1993 to 2001 using CPUE data, while the abundance of neonates has significantly decreased over the past 10 years (CITES, 2010). In inshore waters, neonates are heavily targeted by coastal gillnets and recreational fisheries, and are also caught as bycatch in shrimp and pair trawls (CITES, 2010). Further offshore, catches of scalloped hammerheads have been documented as incidental take in other directed fisheries, such as a tuna fishery based in ˜ Santos City, Sao Paulo State, Brazil, where data has revealed a decline in these incidental catch weights, from 290 t in 1990 to 59 t in 1996 (Amorim et al., 1998). In the Pacific Ocean, juvenile scalloped hammerheads are targeted mainly in directed fisheries but also taken as bycatch by shrimp trawlers and coastal teleost fisheries. Importance of scalloped hammerheads in fishery landings appears to vary by region, from 11.9 percent of the total catch from El Salvador (number of individuals (n)=412; 1991–1992) to 36 percent from the Gulf of Tehauntepec, Mexico (n=8,659; 1996–1998), and ranging from 6 percent (n=339) to 74 percent (n=800) of the total catch off different parts of Guatemala (1996–1999) (CITES, 2010). In Ecuador, landings of hammerhead sharks have decreased since 1996, with a 51 percent decline in artisanal fishery landings between 2004 and 2006 in the Port of Manta, an area where artisanal and drift-net fleets account for 80 percent of shark landings in Ecuador (CITES, 2010). In the Indian Ocean, pelagic sharks, including the scalloped hammerhead, are targeted in various fisheries, including semi-industrial, artisanal, and recreational fisheries. Countries that fish for sharks include: Egypt, India, Iran, Oman, Saudi Arabia, Sudan, United Arab Emirates, and Yemen, where the probable or actual status of the shark populations is unknown, and Maldives, Kenya, Mauritius, Seychelles, South Africa, and United Republic of Tanzania, where the actual status of the PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 shark population is presumed to be fully to over exploited (Young, 2006). We conclude that the information in the petition and in our files suggests that fisheries may be impacting the continued existence of the scalloped hammerhead. Inadequacy of Existing Regulatory Mechanisms The petition asserts that the inadequacy of existing Federal, state, or international regulatory mechanisms require that the scalloped hammerhead shark be listed under the ESA. The petition contends that the lack of specific regulations for the scalloped hammerhead has failed to prevent large population declines of the shark species. However, the latest stock assessment for the northwestern Atlantic scalloped hammerhead shark population estimated that a total allowable catch (TAC) of 2,853 scalloped hammerhead sharks per year (or 69 percent of the 2005 catch) would allow a 70 percent probability of rebuilding to MSY in 10 years (Hayes et al., 2009). Based on this assessment, on April 28, 2011, NMFS determined that the northwestern Atlantic scalloped hammerhead shark stock was ‘‘overfished’’ and that ‘‘overfishing is occurring,’’ prompting NMFS to ‘‘take action to end or prevent overfishing in the fishery and implement conservation and management measures to rebuild overfished stocks within 2 years’’ (76 FR 23794; April 28, 2011). This status determination is specific to the northwestern Atlantic scalloped hammerhead shark stock and any additional regulations would be implemented to prevent large population declines of that stock. In addition, the petition asserts that there is little international regulation of fishing or trading to protect scalloped hammerheads; however, in 2010, the International Commission for the Conservation of Atlantic Tunas (ICCAT) developed recommendations 10–07 and 10–08, which specifically prohibit the retention, transshipping, landing, sorting, or selling of hammerhead sharks, other than bonnethead sharks, caught in association with ICCAT fisheries. The ICCAT is responsible for the conservation of tuna and tuna-like species in the Atlantic Ocean and adjacent seas and its recommendations are binding to Contracting Parties (of which there are 48, including the United States), unless Parties object pursuant to the treaty. On April 29, 2011, NMFS proposed and on August 29, 2011, finalized the implementation of these recommendations, which affect the U.S. commercial HMS pelagic E:\FR\FM\28NOP1.SGM 28NOP1 pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules 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). The petition notes that finning bans are a common form of shark management regulation and have been adopted by 19 countries, including Mexico, Costa Rica, and Chile, but argues that many of these bans contain loopholes that allow for the continued removal of shark fins at sea. It is important to note that the petition does not provide information that some countries and management bodies are working to address these issues, including the United States and the European Union (EU). In fact, on January 4, 2011, the 2010 U.S. Shark Conservation Act was signed. This legislation requires that all sharks caught in U.S. waters, with an exemption for smooth dogfish, be landed with fins naturally attached, effectively ending the practice of removing fins at sea in the United States (Pub. L. 111–348). However, even with the increase and strengthening of finning bans, the lack of internationally enforced catch limits or trade regulations allows for the continued and unregulated fishing of scalloped hammerheads in international waters. In 2010, the United States and Palau proposed to list S. lewini under Appendix II of CITES, which would have imposed international trade regulations and provided protection for the species through the requirement of export permits or re-export certificates. However, this proposal was rejected. In 2011, the EU failed in its proposals to secure Indian Ocean Tuna Commission (IOTC) and Inter-American Tropical Tuna Commission (IATTC) protection for the scalloped hammerhead, which would have prohibited retaining onboard, transhipping, landing, storing, selling, or offering for sale any part or whole carcass of hammerhead sharks of the family Sphyrnidae taken in the IOTC and IATTC area of competence, respectively. In addition, information in our files and in the petition indicates that illegal fishing of this species may be occurring in certain regions. For example, in Cocos Island National Park, off Costa Rica, a ‘‘no take’’ zone was established in 1992, yet populations of S. lewini continued to decline by an estimated 71 percent from 1992 to 2004 (Myers et al., 2004). In Ecuador, concern over illegal fishing around the Galapagos Islands prompted a 2004 ban on the exportation of fins; however, this only resulted in the establishment of new illegal trade routes and continued VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 exploitation of S. lewini (CITES, 2010). Thus, the information in the petition and in our files suggests that while there is increasing support for domestic and international shark conservation and regulation, the existing regulatory mechanisms in some portions of the S. lewini range may be inadequate to address threats to the global scalloped hammerhead population. Other Natural or Manmade Factors The petition contends that ‘‘biological vulnerability’’ in the form of long gestation periods, late maturity, large size, and documented schooling behavior, is affecting the species’ ability to recover from exploitation. However, a recent ecological risk assessment for pelagic sharks found that scalloped hammerheads ranked among the less vulnerable species in terms of its biological productivity and susceptibility to the pelagic longline ´ fisheries in the Atlantic Ocean (Cortes et al., 2010), suggesting a low risk of overexploitation. In addition, the petition states that ‘‘high predation on pups further hampers the species’ ability to recover,’’ but Clarke (1971) noted that despite this mortality, the population of pups remains high in nursery grounds and suggested that birth rates may match mortality rates, hence protecting the population from significant losses. Thus, available information is insufficient to indicate that there has been any negative effect on the scalloped hammerhead shark’s ability to recover due to its biological characteristics. The petition also asserts that ‘‘human population growth’’ may pose a serious threat to the scalloped hammerhead population. However, broad statements about generalized threats to the species do not constitute substantial information indicating that listing may be warranted. Although the petition presents information that the human population may be expanding, it does not provide information indicating an increase in fishing pressure on scalloped hammerhead sharks due specifically to this human population growth, or information that scalloped hammerhead sharks are responding in a negative fashion to human population growth. Summary of Section 4(a)(1) Factors We conclude that the petition presents substantial scientific or commercial information indicating that a combination of two of the section 4(a)(1) factors: Overutilization for commercial, recreational, scientific, or educational purposes, and inadequate existing regulatory mechanisms, may be PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 72895 causing or contributing to an increased risk of extinction for the scalloped hammerhead shark. Petition Finding After reviewing the information contained in the petition, as well as information readily available in our files, and based on the above analysis, we conclude the petition presents substantial scientific information indicating the petitioned action of listing the scalloped hammerhead shark as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS’ implementing regulations (50 CFR 424.14(b)(2)), we will commence a status review of the species. During our status review, we will first determine whether the species is in danger of extinction (endangered) or likely to become so (threatened) throughout all or a significant portion of its range. If it is not, then we will consider whether the populations identified by the petitioner meet the DPS policy criteria, and if so, whether any of these are threatened or endangered. We now initiate this review, and thus, the scalloped hammerhead shark is considered to be a candidate species (69 FR 19975; April 15, 2004). Within 12 months of the receipt of the petition (August 14, 2012), we will make a finding as to whether listing the species (or any identified DPSs) as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing the species (or any identified DPSs) is found to be warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule. Information Solicited To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether the scalloped hammerhead shark is endangered or threatened. Specifically, we are soliciting information in the following areas: (1) Historical and current distribution and abundance of this species throughout its range; (2) historical and current population trends; (3) life history in marine environments; (4) shark fin trade data; (5) any current or planned activities that may adversely impact the species; (6) ongoing or planned efforts to protect and restore the species and their habitats; (7) population structure information, such as genetics data; and (8) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as E:\FR\FM\28NOP1.SGM 28NOP1 72896 Federal Register / Vol. 76, No. 228 / Monday, November 28, 2011 / Proposed Rules maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter’s name, address, and any association, institution, or business that the person represents. pmangrum on DSK3VPTVN1PROD with PROPOSALS-1 References Cited A complete list of references is available upon request from NMFS VerDate Mar<15>2010 15:28 Nov 25, 2011 Jkt 226001 Protected Resources Headquarters Office (see ADDRESSES). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). PO 00000 Frm 00044 Fmt 4702 Sfmt 9990 Dated: November 21, 2011. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2011–30599 Filed 11–25–11; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\28NOP1.SGM 28NOP1

Agencies

[Federal Register Volume 76, Number 228 (Monday, November 28, 2011)]
[Proposed Rules]
[Pages 72891-72896]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30599]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 111025652-1657-01]
RIN 0648-XA798


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Scalloped Hammerhead Shark as Threatened or Endangered 
Under the Endangered Species Act

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

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

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
scalloped hammerhead shark (Sphyrna lewini) or, in the alternative, 
multiple distinct population segments (DPSs) of the scalloped 
hammerhead shark as threatened or endangered under the Endangered 
Species Act (ESA), and to designate critical habitat concurrently with 
the listing. We find that the petition and information in our files 
present substantial scientific or commercial information indicating 
that the petitioned action may be warranted. We will conduct a status 
review of the species to determine if the petitioned action is 
warranted. To ensure that the status review is comprehensive, we are 
soliciting scientific and commercial information pertaining to this 
species from any interested party.

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

ADDRESSES: You may submit comments, information, or data, identified by 
``NOAA-NMFS-2011-0261'' by any one of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal https://www.regulations.gov. To submit 
comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter ``NOAA-NMFS-2011-0261'' in the keyword 
search. Locate the document you wish to comment on from the resulting 
list and click on the ``Submit a Comment'' icon on the right of that 
line.
     Mail or hand-delivery: Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and may be posted to https://www.regulations.gov without change. All 
personally identifiable information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information. NMFS will accept anonymous comments. Attachments 
to electronic comments will be accepted in Microsoft Word, Excel, Corel 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: 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. Copies of the 
petition are available upon request (see ADDRESSES, above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

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

[[Page 72892]]

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

Distribution and Life History of the Scalloped Hammerhead Shark

    The scalloped hammerhead shark is a circumglobal species that lives 
in coastal warm temperate and tropical seas. It occurs over continental 
and insular shelves, as well as adjacent deep waters, but is seldom 
found in waters cooler than 22 [deg]C (Compagno, 1984; Schulze-Haugen 
et al., 2003). Scalloped hammerhead sharks are highly mobile and partly 
migratory and are likely the most abundant of the hammerhead species 
(Maguire et al., 2006). However, Maguire et al. (2006) also notes that 
``although its worldwide distribution and known high abundance gives 
the species some protection globally, the risk of local depletions 
remains a serious concern.''
    In the western Atlantic Ocean, the scalloped hammerhead range 
extends from the Northeast coast of the United States (from New Jersey 
to Florida) to Brazil, including the Gulf of Mexico and Caribbean Sea. 
In the eastern Atlantic, it can be found from the Mediterranean Sea to 
Namibia. Populations in the Indian Ocean are found in the following 
locations: South Africa and the Red Sea to Pakistan, India, and 
Myanmar, and in the western Pacific the scalloped hammerhead can be 
found from Japan and China to New Caledonia, including throughout the 
Philippines, Indonesia, and off Australia. Distribution in the eastern 
Pacific Ocean extends from the coast of southern California (U.S.), 
including the Gulf of California, to Ecuador and possibly Peru 
(Compagno, 1984), and off waters of Hawaii (U.S.) and Tahiti.
    The general life history pattern of the scalloped hammerhead shark 
is that of a long lived (oldest known sharks of both sexes aged at 30.5 
years; Piercy et al., 2007), slow growing, and late

[[Page 72893]]

maturing species. The scalloped hammerhead shark has a laterally 
expanded head that resembles a hammer, hence the common name 
``hammerhead,'' and belongs to the Sphyrnidae family. The scalloped 
hammerhead shark is distinguished from other hammerheads by a marked 
central indentation on the anterior margin of the head, along with two 
more indentations on each side of this central indentation, giving the 
head a ``scalloped'' appearance. It has a broadly arched mouth and the 
rear margin of the head is slightly swept backward. The dentition of 
the hammerhead consists of small, narrow, and triangular teeth with 
smooth edges (often slightly serrated in larger individuals), and is 
similar in both jaws. The front teeth are erect while subsequent teeth 
have oblique cusps, and the lower teeth are more erect than the upper 
teeth (Florida Museum of Natural History, 2011). The body of the 
scalloped hammerhead is fusiform, with a large first dorsal fin and low 
second dorsal and pelvic fins. The first dorsal fin is moderately 
hooked with its origin over or slightly behind the pectoral fin 
insertions and the rear tip in front of the pelvic fin origins. The 
height of the second dorsal fin is less than the anal fin height and 
has a posterior margin that is approximately twice the height of the 
fin, with the free rear tip almost reaching the precaudal pit. The 
pelvic fins have relatively straight rear margins while the anal fin is 
deeply notched on the posterior margin (Compagno, 1984). The scalloped 
hammerhead generally has a uniform gray, grayish brown, bronze, or 
olive coloration on top of the body that shades to white on the 
underside with dusky or black pectoral fin tips.
    The oldest aged scalloped hammerhead sharks had lengths of 241 cm 
(females) and 234 cm (males) (Piercy et al., 2007), but the scalloped 
hammerhead shark can reach lengths of up to 365-420 cm (Compagno, 
1984). The estimates on the exact age and length at sexual maturity for 
the scalloped hammerhead vary widely by region. In the Gulf of Mexico, 
Branstetter (1987) estimated that females mature around 270 cm, or 
about 15 years of age, and males mature around 180 cm, or 9-10 years of 
age. In Northeastern Taiwan waters, Chen et al. (1990) calculated age 
at maturity to be 4 years for females and 3.8 years for males, 
corresponding to lengths of 210 cm and 198 cm, respectively. Zeeberg et 
al. (2006) considered hammerheads greater than 140 cm to be mature in 
Northwest Africa, while off the coast of northern Australia, males are 
thought to reach maturity at 150 cm and females at 200 cm (Stevens and 
Lyle, 1989). On the east coast of South Africa, observed median length 
at maturity for scalloped hammerheads was 184 cm for females and 161 cm 
for males, with age estimated around 11 years (Dudley and 
Simpfendorfer, 2006). While it may appear that maturity estimates vary 
by region, it is unclear whether these differences are truly biological 
or a result of differences in band interpretations in aging methodology 
approaches (Piercy et al., 2007).
    The scalloped hammerhead shark is viviparous (i.e., give birth to 
live young), with a gestation period of 9-12 months and likely followed 
by a one-year resting period (Branstetter, 1987; Stevens and Lyle, 
1989; Chen et al., 1990; Liu and Chen, 1999). Females move inshore to 
birth during the summer months, with litter sizes anywhere between 2 
and 41 live pups (Branstetter, 1987; Stevens and Lyle, 1989; Hazin et 
al., 2001; White et al., 2008). Length at birth estimates for scalloped 
hammerheads range from 31-50 cm (Branstetter, 1987; Stevens and Lyle, 
1989; Chen et al., 1990; Zeeberg et al., 2006). Juveniles remain close 
to inshore waters but will migrate to deeper waters as they grow. Both 
juveniles and adult scalloped hammerhead sharks have been found to 
occur as solitary individuals, as pairs, and in schools. The schooling 
behavior has been documented during summer migrations off the coast of 
South Africa as well as in permanent resident populations, like those 
in the East China Sea (Compagno, 1984). Adult aggregations are most 
common offshore over seamounts and near islands, especially near the 
Galapagos, Malpelo, Cocos and Revillagigedo Islands, and within the 
Gulf of California (Compagno, 1984; CITES, 2010). The schooling 
behavior exhibited by scalloped hammerheads makes them vulnerable to 
being caught in large numbers (Hayes et al., 2009).
    The scalloped hammerhead shark is a high trophic level predator 
(Cort[eacute]s, 1999) and opportunistic feeder, with a diet that 
includes a wide variety of teleosts, cephalopods, crustaceans, and rays 
(Compagno, 1984).

Analysis of Petition and Information Readily Available in NMFS Files

    We evaluated the information provided in the petition and readily 
available in our files to determine if the petition presented 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. The petition contains information 
on the species, including the taxonomy, species description, geographic 
distribution, habitat, population status and trends, and factors 
contributing to the species' decline. The petition states that the 
primary threat to the scalloped hammerhead shark is exploitation by 
fishing, with the ongoing practice of ``finning'' of particular 
concern. The petitioners also assert that the lack of adequate 
regulatory protection programs worldwide, as well the species' 
biological constraints, increase the susceptibility of the scalloped 
hammerhead shark to exploitation and extinction. Although data are not 
available to determine the actual number or size of the global 
population of scalloped hammerhead sharks, the information from our 
files and from the petitioners' references suggest that the scalloped 
hammerhead underwent significant range-wide declines from historical 
abundance levels (Feretti et al., 2008; Hayes et al., 2009; CITES, 
2010).
    According to the petition, at least three of the five causal 
factors in section 4(a)(1) of the ESA are adversely affecting the 
continued existence of the scalloped hammerhead shark, specifically: 
(B) Overutilization for commercial, recreational, scientific, or 
educational purposes; (D) inadequacy of existing regulatory mechanisms; 
and (E) other natural or manmade factors affecting its continued 
existence. In the following sections, we use the information presented 
in the petition and in our files to determine whether the petitioned 
action may be warranted. We consider the global population of scalloped 
hammerhead sharks and will revisit the question of DPSs during a status 
review, if necessary. We summarize our analysis and conclusions 
regarding the information presented by the petitioner and in our files 
on the specific ESA section 4(a)(1) factors affecting the species' risk 
of global extinction below.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Information from the petition and in our files suggests that the 
primary threat to the scalloped hammerhead shark is from fisheries. We 
refer to the U.S. and Palau CITES (2010) proposal to list S. lewini 
under Appendix II (henceforth, referred to as the CITES proposal) for 
much of the available abundance and catch trend data as this is a 
recent compilation of information on the species.
    Scalloped hammerhead sharks are both targeted and taken as bycatch 
in many global fisheries (e.g., bottom and pelagic longlines, coastal 
gillnet

[[Page 72894]]

fisheries, artisanal fisheries). Because of their large fins with high 
fin noodle content (a gelatinous product used to make shark fin soup), 
scalloped hammerheads fetch a high commercial value in the Asian shark 
fin trade (Abercrombie et al., 2005). In Hong Kong, the world's largest 
fin trade market, S. lewini and S. zygaena (smooth hammerhead) are 
mainly traded under the ``Chun chi'' market category, which also 
happens to be the second most traded fin category. Together, smooth and 
scalloped hammerheads are estimated to comprise 4-5 percent of the 
total fins traded in the Hong Kong market, which suggests that 1.3 to 
2.7 million individuals of these species (equivalent to a biomass of 
49,000-90,000 tons) are used in the Hong Kong fin trade annually 
(Clarke et al., 2006; Camhi et al., 2009).
    In the United States, scalloped hammerhead sharks are mainly caught 
as bycatch in longline and coastal gillnet fisheries and are known to 
suffer high mortality from capture. In the northwest Atlantic, on-line 
mortalities (for all age groups) were estimated at 91.4 percent and 
93.8 percent (Mejuto et al., 2002; Morgan and Burgess, 2007; Camhi et 
al., 2009). Scalloped hammerheads have also become a popular target 
species of recreational fishermen in the last several decades. A recent 
stock assessment by Hayes et al. (2009) found that the northwestern 
Atlantic population in 1981, which ranged between 146,000 and 165,000 
individuals, has since decreased to approximately 25,000-28,000 
individuals in 2005, a level estimated to be at 45 percent of the 
biomass that would produce the maximum sustainable yield (MSY). Fishing 
mortality was also estimated to be 129 percent of fishing mortality 
associated with MSY. Given the data, Hayes et al. (2009) concluded that 
the northwestern Atlantic S. lewini stock is only 17 percent of the 
virgin stock size, or, in other words, has been depleted by 
approximately 83 percent since 1981. In another study, Myers et al. 
(2007) documented a 98 percent decline of S. lewini off the coast of 
North Carolina between 1972 and 2003 using standardized catch per unit 
effort (CPUE) data from shark targeted, fishery-independent surveys. 
Myers et al. (2007) remarks that the trends in abundance may be 
indicative of coastwide population changes, because the survey was 
situated ``where it intercepts sharks on their seasonal migrations.'' A 
time-series analysis conducted by Carlson et al. (2005) since 1995 
suggests that the northwest Atlantic population may be stabilized but 
at a very low level (CITES, 2010).
    According to the CITES proposal, overutilization of scalloped 
hammerheads has also been documented off the coast of Belize, leading 
to an observed decline in the abundance and size of hammerheads and 
prompting a halt in the Belize-based shark fishery. However, fishing 
pressure on hammerheads still continues as a result of Guatemalan 
fishermen entering Belizean waters (CITES, 2010). Further south, in 
Brazil, declines between 60 and 90 percent of adult female scalloped 
hammerheads have been reported from 1993 to 2001 using CPUE data, while 
the abundance of neonates has significantly decreased over the past 10 
years (CITES, 2010). In inshore waters, neonates are heavily targeted 
by coastal gillnets and recreational fisheries, and are also caught as 
bycatch in shrimp and pair trawls (CITES, 2010). Further offshore, 
catches of scalloped hammerheads have been documented as incidental 
take in other directed fisheries, such as a tuna fishery based in 
Santos City, S[atilde]o Paulo State, Brazil, where data has revealed a 
decline in these incidental catch weights, from 290 t in 1990 to 59 t 
in 1996 (Amorim et al., 1998).
    In the Pacific Ocean, juvenile scalloped hammerheads are targeted 
mainly in directed fisheries but also taken as bycatch by shrimp 
trawlers and coastal teleost fisheries. Importance of scalloped 
hammerheads in fishery landings appears to vary by region, from 11.9 
percent of the total catch from El Salvador (number of individuals 
(n)=412; 1991-1992) to 36 percent from the Gulf of Tehauntepec, Mexico 
(n=8,659; 1996-1998), and ranging from 6 percent (n=339) to 74 percent 
(n=800) of the total catch off different parts of Guatemala (1996-1999) 
(CITES, 2010). In Ecuador, landings of hammerhead sharks have decreased 
since 1996, with a 51 percent decline in artisanal fishery landings 
between 2004 and 2006 in the Port of Manta, an area where artisanal and 
drift-net fleets account for 80 percent of shark landings in Ecuador 
(CITES, 2010).
    In the Indian Ocean, pelagic sharks, including the scalloped 
hammerhead, are targeted in various fisheries, including semi-
industrial, artisanal, and recreational fisheries. Countries that fish 
for sharks include: Egypt, India, Iran, Oman, Saudi Arabia, Sudan, 
United Arab Emirates, and Yemen, where the probable or actual status of 
the shark populations is unknown, and Maldives, Kenya, Mauritius, 
Seychelles, South Africa, and United Republic of Tanzania, where the 
actual status of the shark population is presumed to be fully to over 
exploited (Young, 2006). We conclude that the information in the 
petition and in our files suggests that fisheries may be impacting the 
continued existence of the scalloped hammerhead.

Inadequacy of Existing Regulatory Mechanisms

    The petition asserts that the inadequacy of existing Federal, 
state, or international regulatory mechanisms require that the 
scalloped hammerhead shark be listed under the ESA. The petition 
contends that the lack of specific regulations for the scalloped 
hammerhead has failed to prevent large population declines of the shark 
species. However, the latest stock assessment for the northwestern 
Atlantic scalloped hammerhead shark population estimated that a total 
allowable catch (TAC) of 2,853 scalloped hammerhead sharks per year (or 
69 percent of the 2005 catch) would allow a 70 percent probability of 
rebuilding to MSY in 10 years (Hayes et al., 2009). Based on this 
assessment, on April 28, 2011, NMFS determined that the northwestern 
Atlantic scalloped hammerhead shark stock was ``overfished'' and that 
``overfishing is occurring,'' prompting NMFS to ``take action to end or 
prevent overfishing in the fishery and implement conservation and 
management measures to rebuild overfished stocks within 2 years'' (76 
FR 23794; April 28, 2011). This status determination is specific to the 
northwestern Atlantic scalloped hammerhead shark stock and any 
additional regulations would be implemented to prevent large population 
declines of that stock.
    In addition, the petition asserts that there is little 
international regulation of fishing or trading to protect scalloped 
hammerheads; however, in 2010, the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) developed recommendations 10-07 
and 10-08, which specifically prohibit the retention, transshipping, 
landing, sorting, or selling of hammerhead sharks, other than 
bonnethead sharks, caught in association with ICCAT fisheries. The 
ICCAT is responsible for the conservation of tuna and tuna-like species 
in the Atlantic Ocean and adjacent seas and its recommendations are 
binding to Contracting Parties (of which there are 48, including the 
United States), unless Parties object pursuant to the treaty. On April 
29, 2011, NMFS proposed and on August 29, 2011, finalized the 
implementation of these recommendations, which affect the U.S. 
commercial HMS pelagic

[[Page 72895]]

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).
    The petition notes that finning bans are a common form of shark 
management regulation and have been adopted by 19 countries, including 
Mexico, Costa Rica, and Chile, but argues that many of these bans 
contain loopholes that allow for the continued removal of shark fins at 
sea. It is important to note that the petition does not provide 
information that some countries and management bodies are working to 
address these issues, including the United States and the European 
Union (EU). In fact, on January 4, 2011, the 2010 U.S. Shark 
Conservation Act was signed. This legislation requires that all sharks 
caught in U.S. waters, with an exemption for smooth dogfish, be landed 
with fins naturally attached, effectively ending the practice of 
removing fins at sea in the United States (Pub. L. 111-348). However, 
even with the increase and strengthening of finning bans, the lack of 
internationally enforced catch limits or trade regulations allows for 
the continued and unregulated fishing of scalloped hammerheads in 
international waters. In 2010, the United States and Palau proposed to 
list S. lewini under Appendix II of CITES, which would have imposed 
international trade regulations and provided protection for the species 
through the requirement of export permits or re-export certificates. 
However, this proposal was rejected. In 2011, the EU failed in its 
proposals to secure Indian Ocean Tuna Commission (IOTC) and Inter-
American Tropical Tuna Commission (IATTC) protection for the scalloped 
hammerhead, which would have prohibited retaining onboard, 
transhipping, landing, storing, selling, or offering for sale any part 
or whole carcass of hammerhead sharks of the family Sphyrnidae taken in 
the IOTC and IATTC area of competence, respectively. In addition, 
information in our files and in the petition indicates that illegal 
fishing of this species may be occurring in certain regions. For 
example, in Cocos Island National Park, off Costa Rica, a ``no take'' 
zone was established in 1992, yet populations of S. lewini continued to 
decline by an estimated 71 percent from 1992 to 2004 (Myers et al., 
2004). In Ecuador, concern over illegal fishing around the Galapagos 
Islands prompted a 2004 ban on the exportation of fins; however, this 
only resulted in the establishment of new illegal trade routes and 
continued exploitation of S. lewini (CITES, 2010). Thus, the 
information in the petition and in our files suggests that while there 
is increasing support for domestic and international shark conservation 
and regulation, the existing regulatory mechanisms in some portions of 
the S. lewini range may be inadequate to address threats to the global 
scalloped hammerhead population.

Other Natural or Manmade Factors

    The petition contends that ``biological vulnerability'' in the form 
of long gestation periods, late maturity, large size, and documented 
schooling behavior, is affecting the species' ability to recover from 
exploitation. However, a recent ecological risk assessment for pelagic 
sharks found that scalloped hammerheads ranked among the less 
vulnerable species in terms of its biological productivity and 
susceptibility to the pelagic longline fisheries in the Atlantic Ocean 
(Cort[eacute]s et al., 2010), suggesting a low risk of 
overexploitation. In addition, the petition states that ``high 
predation on pups further hampers the species' ability to recover,'' 
but Clarke (1971) noted that despite this mortality, the population of 
pups remains high in nursery grounds and suggested that birth rates may 
match mortality rates, hence protecting the population from significant 
losses. Thus, available information is insufficient to indicate that 
there has been any negative effect on the scalloped hammerhead shark's 
ability to recover due to its biological characteristics.
    The petition also asserts that ``human population growth'' may pose 
a serious threat to the scalloped hammerhead population. However, broad 
statements about generalized threats to the species do not constitute 
substantial information indicating that listing may be warranted. 
Although the petition presents information that the human population 
may be expanding, it does not provide information indicating an 
increase in fishing pressure on scalloped hammerhead sharks due 
specifically to this human population growth, or information that 
scalloped hammerhead sharks are responding in a negative fashion to 
human population growth.

Summary of Section 4(a)(1) Factors

    We conclude that the petition presents substantial scientific or 
commercial information indicating that a combination of two of the 
section 4(a)(1) factors: Overutilization for commercial, recreational, 
scientific, or educational purposes, and inadequate existing regulatory 
mechanisms, may be causing or contributing to an increased risk of 
extinction for the scalloped hammerhead shark.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, and based on the above 
analysis, we conclude the petition presents substantial scientific 
information indicating the petitioned action of listing the scalloped 
hammerhead shark as threatened or endangered may be warranted. 
Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' 
implementing regulations (50 CFR 424.14(b)(2)), we will commence a 
status review of the species. During our status review, we will first 
determine whether the species is in danger of extinction (endangered) 
or likely to become so (threatened) throughout all or a significant 
portion of its range. If it is not, then we will consider whether the 
populations identified by the petitioner meet the DPS policy criteria, 
and if so, whether any of these are threatened or endangered. We now 
initiate this review, and thus, the scalloped hammerhead shark is 
considered to be a candidate species (69 FR 19975; April 15, 2004). 
Within 12 months of the receipt of the petition (August 14, 2012), we 
will make a finding as to whether listing the species (or any 
identified DPSs) as endangered or threatened is warranted as required 
by section 4(b)(3)(B) of the ESA. If listing the species (or any 
identified DPSs) is found to be warranted, we will publish a proposed 
rule and solicit public comments before developing and publishing a 
final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether the scalloped hammerhead shark is endangered or threatened. 
Specifically, we are soliciting information in the following areas: (1) 
Historical and current distribution and abundance of this species 
throughout its range; (2) historical and current population trends; (3) 
life history in marine environments; (4) shark fin trade data; (5) any 
current or planned activities that may adversely impact the species; 
(6) ongoing or planned efforts to protect and restore the species and 
their habitats; (7) population structure information, such as genetics 
data; and (8) management, regulatory, and enforcement information. We 
request that all information be accompanied by: (1) Supporting 
documentation such as

[[Page 72896]]

maps, bibliographic references, or reprints of pertinent publications; 
and (2) the submitter's name, address, and any association, 
institution, or business that the person represents.

References Cited

    A complete list of references is available upon request from NMFS 
Protected Resources Headquarters Office (see ADDRESSES).

Authority

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

    Dated: November 21, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-30599 Filed 11-25-11; 8:45 am]
BILLING CODE 3510-22-P