Endangered and Threatened Wildlife; 90-Day Finding on Petitions To List the Dusky Shark as Threatened or Endangered Under the Endangered Species Act, 29100-29110 [2013-11862]

Download as PDF 29100 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules and development, contaminants, and commercial fisheries; and (4) inadequacy of existing regulatory mechanisms for addressing greenhouse gas emissions, climate change, ocean acidification, and the Pebble Project. CBD concludes that the combination of being a small, isolated population with the identified threats qualifies the seals in Iliamna Lake for listing as a threatened or endangered species under the ESA. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Petition Finding We have reviewed the petition, the literature cited in the petition, and other literature and information available in our files; we identified numerous factual errors, misquoted and incomplete references, and unsupported conclusions within the petition. Our review indicates that there is uncertainty and conflicting information specific to the harbor seals in Iliamna Lake. The seals inhabiting Iliamna Lake are not well studied, but there is some evidence that at least a small number of seals remain in the lake year-round. Currently, there is uncertainty and conflicting information about whether Pacific harbor seals migrate between Iliamna Lake and Bristol Bay. If there is no migration, and these seals are distinct from those in Bristol Bay, then they may face potentially serious threats including low abundance, the Pebble Project and climate change. Given this uncertainty, and considering the requirements of 50 CFR 424.14(b) and standards for addressing petitions at the 90-day stage, we find that the information presented in the petition and information readily available in our files would lead a reasonable person to believe that the petitioned action may be warranted. Therefore, we are making a positive 90-day finding and will promptly commence a status review of Iliamna Lake seals. Request for Information As a result of the finding, we will commence a status review of Pacific harbor seals in Iliamna Lake to determine: (1) If the Pacific harbor seals in Iliamna Lake constitute a DPS under the ESA, and if so, (2) the risk of extinction to this DPS. Based on the results of the status review, we will then determine whether listing the Pacific harbor seals of Iliamna Lake as threatened or endangered under the ESA is warranted. We intend that any final action resulting from this status review be as accurate as possible. Therefore, we are opening a 60-day public comment period to solicit comments and information from the public, government agencies, the VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 scientific community, industry, Alaska Native tribes and organizations, and any other interested parties on the status of the Pacific harbor seals in Iliamna Lake, including: (1) Information on taxonomy, abundance, reproductive success, age structure, distribution and population connectivity, habitat selection, food habits, population density and trends, and habitat trends; (2) Information on the effects of potential threats, including the Pebble Project and climate change, on the distribution and abundance of seals in Iliamna Lake and their principal prey over the short- and long-term; (3) Information on the effects of other potential threats, including disease and predation, contaminants, fishing, hunting, industrial activities, or other known or potential threats; (4) Information on management or conservation programs for harbor seals in Iliamna Lake, including mitigation measures associated with private, tribal or governmental conservation programs which benefit harbor seals in Iliamna Lake; (5) Information on the effects of research on the harbor seals in Iliamna Lake; and (6) Information relevant to whether harbor seals in Iliamna Lake may qualify as a DPS. We request that all data and information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Please send any comments to the ADDRESSES listed above. We will base our findings on a review of best available scientific and commercial information available, including all information received during the public comment period. Authority: The authority for this action is the Endangered Species act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: May 13, 2013. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2013–11869 Filed 5–16–13; 8:45 am] BILLING CODE 3510–22–P PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 DEPARTMENT OF COMMERCE National Ocean and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 130214141–3141–01] RIN 0648–XC515 Endangered and Threatened Wildlife; 90-Day Finding on Petitions To List the Dusky Shark as Threatened or Endangered Under the Endangered Species Act 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 petitions to list the dusky shark (Carcharhinus obscurus) range-wide or, in the alternative, the Northwest Atlantic and Gulf of Mexico population of the dusky shark as a threatened or endangered distinct population segment (DPS) under the Endangered Species Act (ESA), and to designate critical habitat concurrently with the listing. We find that the petitions present substantial scientific or commercial information indicating that the petitioned action may be warranted for the Northwest Atlantic and Gulf of Mexico population of dusky shark; we find that the petitions fail to present substantial scientific or commercial information indicating that the petitioned action may be warranted for the dusky shark range-wide. Therefore, we will conduct a status review of the Northwest Atlantic and Gulf of Mexico population of dusky shark to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this petitioned species from any interested party. DATES: Information and comments on the subject action must be received by July 16, 2013. ADDRESSES: You may submit comments, information, or data on this document, identified by the code NOAA–NMFS– 2013–0045, by any of the following methods: • Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20130045, click the ‘‘Comment Now!’’ icon, SUMMARY: E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules complete the required fields, and enter or attach your comments. • Mail: Submit written comments to Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. • Fax: 301–713–4060, Attn: Maggie Miller. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous), although submitting comments anonymously will prevent NMFS from contacting you if NMFS has difficulty retrieving your submission. Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of Protected Resources, (301) 427–8403. SUPPLEMENTARY INFORMATION: wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Background On November 14, 2012, we received a petition from WildEarth Guardians (WEG) to list the dusky shark (Carcharhinus obscurus) as threatened or endangered under the ESA throughout its entire range, or, as an alternative, to list the Northwest Atlantic/Gulf of Mexico DPS as threatened or endangered. The petitioners also requested that critical habitat be designated for the dusky shark under the ESA. On February 1, 2013, we received a petition from Natural Resources Defense Council (NRDC) to list the northwest Atlantic DPS of dusky shark as threatened, or, as an alternative, to list the dusky shark range-wide as threatened, and a request that critical habitat be designated. The joint USFWS/NMFS petition management handbook states that if we receive two equivalent petitions for the same species and a 90-day finding has not yet been made on the earlier petition, then the later petition will be combined with the earlier petition and a combined 90-day finding will be prepared. Given that, this 90-day finding will address both the WEG and NRDC petitions for dusky shark. Copies VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 of the petitions are available upon request (see ADDRESSES, above). ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a ‘‘positive 90-day finding’’), we are required to promptly commence a review of the status of the species concerned, during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a ‘‘may be warranted’’ finding does not prejudge the outcome of the status review. Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS–U.S. Fish and Wildlife Service (USFWS) (jointly, ‘‘the Services’’) policy clarifies the agencies’ interpretation of the phrase ‘‘distinct population segment’’ for the purposes of listing, delisting, and reclassifying a vertebrate species under the ESA (61 FR 4722; February 7, 1996) (‘‘DPS Policy’’). A species is ‘‘endangered’’ if it is in danger of extinction throughout all or a significant portion of its range, and ‘‘threatened’’ if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 29101 or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species’ existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). In evaluating whether a population constitutes a significant portion of the species’ range, we consider the portion of the range to be significant if its contribution to the overall viability of the species is so important that, without it, the species may be in danger of extinction. These considerations are consistent with interpretations and principles in the NMFS and USFWS Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species,’’ which we consider as nonbinding guidance in making listing determinations until a final policy is published. In the draft policy, the Services explain that this definition of ‘‘significant’’ for the purpose of analyzing whether a population constitutes a significant portion of a species range differs from the definition of ‘‘significant’’ defined in the Services’ DPS Policy and used for DPS analysis (76 FR 76987; December 9, 2011). ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define ‘‘substantial information’’ in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). Judicial decisions have clarified the appropriate scope and limitations of the Services’ review of petitions at the 90- E:\FR\FM\17MYP1.SGM 17MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS 29102 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules day finding stage, in making a determination that a petitioned action ‘‘may be’’ warranted. As a general matter, these decisions hold that a petition need not establish a ‘‘strong likelihood’’ or a ‘‘high probability’’ that a species is either threatened or endangered to support a positive 90-day finding. We evaluate the petitioners’ request based upon the information in the petition including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners’ sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information that indicates that the petition’s information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioners’ assertions. In other words, conclusive information indicating that the species may meet the ESA’s requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90day finding if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue. To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating that the subject species may be either threatened or endangered, as defined by the ESA. First, if the petition requests listing of a subspecies or a DPS, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a ‘‘species’’ eligible for listing under the ESA, pursuant to the DPS Policy. Next, we evaluate whether the information indicates that the species faces an extinction risk that is cause for concern throughout all or a significant portion of its range; this may be indicated in information expressly discussing the species’ status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 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 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 Dusky Shark The dusky shark is part of the Carcharhinidae family. It is a coastal- PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 pelagic species that inhabits warm temperate and tropical waters (FAO, 2012). It has a global but patchy distribution, with its range-wide occurrence poorly known. In the Northwest Atlantic, dusky sharks can be found from southern Massachusetts and Georges Bank to Florida, the Bahamas, Cuba, and the northern Gulf of Mexico (NMFS, 2011a). Dusky shark distribution off Central America is not well known (NMFS, 2011a). In the Eastern Pacific, the species is thought to occur off the coast of southern California to the Gulf of California, Revillagigedo Islands, and possibly Chile (NOAA, 1998; Musick et al., 2007). The species can also be found off the coasts of Australia, Nicaragua, and southern Brazil (NMFS, 2011a). According to Dudley et al. (2005), the shark’s distribution in the western Indian Ocean extends from the Red Sea to the southern tip of Africa and off the coast of Madagascar. The species is also thought to be found in the Mediterranean Sea, and off the coasts and continental shelves of Japan, China, Vietnam, New Caledonia, and North Africa, possibly around oceanic islands off western Africa (Musick et al., 2007; NMFS, 2011a). The dusky shark is a highly migratory species that occurs in both inshore (surf zone) and offshore waters, from the surface to depths as deep as 1,883 feet (574 m) (NOAA, 1998; Hoffmayer et al., 2010; NMFS, 2011a). The shark avoids areas of lower salinity and is rarely found in estuarine environments (NOAA, 1998; SEDAR, 2011). Along the U.S. coasts, the dusky shark undertakes long temperature-related migrations, moving north in the summer as waters warm and retreating south in the fall as water temperatures drop (NMFS, 2011a). Seasonal migrations have also been documented off South Africa (NOAA, 1998). In western Australia, both adolescents and adults move inshore during the summer and fall, with neonates occupying separate inshore areas (NOAA, 1998). The general life history pattern of the dusky shark is that of a long lived (oldest known female shark aged at 39 years), slow growing, and late maturing species (SEDAR, 2011). The dusky shark is a large, fairly slender shark, with an average total length (TL) of around 11.8 feet (360 cm) and weight of 400 pounds (180 kg) (NMFS, 2011a). Northwest Atlantic and Gulf of Mexico dusky males attain sexual maturity at around 280 cm TL, or 19 years, and females reach sexual maturity at 284 cm TL, or 21 years (NOAA, 1998; NMFS, 2011a). Similar maturity sizes have been observed for dusky sharks from South E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Africa and Australia (NOAA, 1998). The dusky shark is viviparous (i.e., gives birth to live young), with a gestation period of around 18 months and a triennial reproductive cycle (SEDAR, 2011). Litter sizes range between 3 and 14 pups (NMFS, 2011a; SEDAR, 2011) with the pupping months for the Northwest Atlantic and Gulf of Mexico dusky population occurring from May to June. Young are born at sizes of 33 to 39 inches (85—100 cm) (NMFS, 2011a). The shark has a rounded snout that is shorter than or equal to the width of its mouth and a low ridge along its back between its dorsal fins (NMFS, 2011a). The dorsal fin originates over or near the free rear tips of moderately large pectoral fins, and the second dorsal fin has a free tip length that is usually not more than twice its fin height (NMFS, 2011a; FLMNH, undated). The dusky shark is colored bronzy gray to blue gray above and white ventrally, and is also known as the bronze whaler or black whaler (NMFS, 2011a). It is a high ´ trophic level predator (Cortes, 1999) with a diet that includes a wide variety of bony and cartilaginous fishes and squid (NOAA, 1998). In the Indian Ocean, young dusky sharks have been observed feeding in large aggregations (NOAA, 1998). With respect to ESA listing actions, we added the dusky shark to our candidate species list in 1997 (62 FR 37560; July 14, 1997), but subsequently transferred the Northwest Atlantic and Gulf of Mexico population to our Species of Concern List in 2004 (69 FR 19975; April 15, 2004). There is no mandatory Federal protection for candidate species or species of concern, but voluntary protection is urged. Analysis of Petition and Information Readily Available in NMFS Files We evaluated the information provided in the petitions and readily available in our files to determine if the petitions presented substantial scientific or commercial information indicating that the petitioned actions may be warranted. The petitions contain information on the species, including the taxonomy, species description, geographic distribution, habitat, some population status and trends, and factors contributing to the species’ decline. According to the WEG petition, at least four of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the dusky shark, specifically: (A) Present and threatened destruction, modification, and curtailment of habitat and range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. The focus of the NRDC petition is mainly on the northwest Atlantic population and identified the threats of: (B) overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. In the following sections, we use the information presented in the petitions and in our files to determine whether the petitioned action may be warranted. We consider both the information presented for the global population of dusky sharks (as provided primarily in the WEG petition) as well as the information presented for the Northwest Atlantic and Gulf of Mexico population (provided in both petitions) on the specific ESA section 4(a)(1) factors affecting the species’ risk of extinction. We provide separate analyses and conclusions regarding the information presented by the petitioners and in our files for the global and for the Northwest Atlantic and Gulf of Mexico populations since we were petitioned to list either the global population (range-wide) or the Northwest Atlantic and Gulf of Mexico population. Qualification of Northwest Atlantic and Gulf of Mexico Population as a DPS Both petitions assert that the Northwest Atlantic and Gulf of Mexico population (henceforth referred to as ‘‘NW Atlantic population’’) of dusky shark qualifies as a DPS because it is both a discrete and significant population segment of the species as defined in the DPS Policy. The NRDC petition states that the NW Atlantic population is discrete based on both genetic and spatial separation from other populations of dusky sharks. Genetic analyses indicate that the NW Atlantic population of dusky sharks is genetically differentiated from other populations of dusky sharks (Benavides et al., 2011; Gray et al., 2012). Results from both nuclear microsatellite DNA and mitochondrial control region analyses showed significant genetic differentiation between the western North Atlantic, South African, and Australian dusky shark populations, with a low frequency of migration between these populations (Benavides et al., 2011; Gray et al., 2012). Analysis of mitochondrial control regions also indicate that dusky sharks off the U.S. East Coast and in the Gulf of Mexico are not genetically distinct (Benavides et al., 2011), with tagging data that show a high frequency of movements between PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 29103 these two basins (SEDAR, 2011). Furthermore, Benavides et al. (2011) provides preliminary evidence of population structure between the NW Atlantic population and the dusky sharks in the Southwest Atlantic (off Brazil), suggesting that the NW Atlantic population, if it were depleted, would not likely be replenished by immigrant females from the Southwest Atlantic population. In addition to genetic separation, the NRDC contends that the NW Atlantic population is geographically separated from other populations. NRDC indicates that the NW Atlantic population primarily inhabits U.S. waters, and as such is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. Both petitions make the case that the NW Atlantic population is significant to the taxon. As described above, the NW Atlantic population appears to be genetically distinct and geographically separate from other dusky shark populations, with evidence of little mixing between neighboring populations (Benavides et al., 2011; Gray et al., 2012). Thus, the petitions reason that loss of this population would result in a significant gap in the range of the species because it is unlikely to be repopulated by sharks from other populations. Overall, based on the above analysis, we conclude that the information in the two petitions and in our files suggests that the NW Atlantic population of dusky shark may qualify as a DPS under the discreteness and significance criteria of the DPS Policy. We will explore this designation further and conduct a formal DPS analysis during the status review. Qualification of the Northwest Atlantic and Gulf of Mexico as a Significant Portion of the Range (SPOIR) The NRDC petition specifically requests that we list the dusky shark as threatened because the species is likely to become endangered in a significant portion of its range (specifically throughout the habitat of the Northwest Atlantic, including the Gulf of Mexico). The WEG petition makes a similar statement: ‘‘The Gulf of Mexico comprises a significant portion of the dusky shark’s range’’ and focuses part of its threats analysis on this portion. However, we conclude that neither petition presented substantial information, nor is there information in our files, to indicate that the Northwest E:\FR\FM\17MYP1.SGM 17MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS 29104 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules Atlantic and Gulf of Mexico is a significant portion of the dusky shark’s range. In making this assessment we considered a portion of the range to be significant if its contribution to the overall viability of the dusky shark was so important that, without it, the dusky shark would be in danger of extinction. These considerations are consistent with interpretations and principles in the NMFS and USFWS Draft Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species,’’ which we consider as nonbinding guidance in making listing determinations until a final policy is published (76 FR 76987; December 9, 2011). As requested by the NRDC, we considered whether the loss of the northwest Atlantic portion would be expected to increase the entire species’ vulnerability to extinction to the point where the global population of dusky sharks would be in danger of extinction. However, neither petition provides substantial evidence that the global population may be at risk of extinction from the loss of the Northwest Atlantic portion, nor do we have information that would support this in our files. The WEG petition presents information on threats to the global population, whereas the NRDC petition does not; however, neither petition presents information about the dependence of the global population on the Northwest Atlantic portion for survival. Therefore, we conclude that the petitions do not provide substantial evidence that the Northwest Atlantic may qualify as a significant portion of the dusky shark’s range or that listing of the global population of shark may be warranted because the population is threatened or endangered in a significant portion of its range. Our analysis below considers the application of the ESA section 4(a)(1) factors to the Northwest Atlantic population in determining whether the WEG and NRDC petitions present substantial information indicating that listing the Northwest Atlantic population may be warranted. In addition, we consider the application of the ESA section 4(a)(1) factors to the global population in determining whether the WEG petition presents substantial information indicating that listing the global population may be warranted. VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 Factor A: Present and Threatened Destruction, Modification, or Curtailment of Habitat or Range NW Atlantic Population Analysis The WEG petition identifies the 2010 Deepwater Horizon oil spill as an event that has degraded the marine environment used by the NW Atlantic population of dusky sharks, but does not provide any information on how the effects of the spill contribute to the extinction risk of the species. It cites a National Geographic Daily News article (Handwerk, 2010) that discusses the potential negative impacts of the spill on whale sharks, a large, filter-feeding species. When feeding, the whale shark swims with its mouth open, filtering over 100,000 gallons of water an hour, capturing prey and passing the water through its gills (Handwerk, 2010). Due to this type of feeding behavior, scientists believe that the oil from the spill may have had lethal impacts to the whale sharks (Handwerk, 2010). Specifically, the article mentions sightings of whale sharks that were unable to avoid the oil slick, and suggests that the oil may have clogged the sharks’ gills, suffocating them, or contaminated their prey; however, there have been no reports of dead whale sharks (Handwerk, 2010). The article does not mention the dusky shark or its exposure to the oil. The dusky shark is not a filter-feeder, and thus the effects of the oil spill on the whale shark do not provide information on the effects of the spill on the dusky shark. In addition, the WEG petition does not provide any information on how the oil has affected the dusky sharks’ extinction risk, but mentions that researchers are currently studying the fatal and non-fatal impacts of the oil spill on the species. The petition does note that apex predators can bioaccumulate toxic chemicals that they ingest from their prey, but does not provide information on the amount of toxic substances from prey that the global population or the NW Atlantic population is absorbing, or how much this threat is a cause for concern in relation to extinction risk. The WEG petition notes that the oil ‘‘has degraded sea grass habitat south of Chandeleur Island a known nursery for a number of shark species’’ but does not identify if this location is a known nursery ground for the dusky shark. Neither the reference (CBD, undated) nor information in our files (NMFS, 2009) indicates that this is a nursery area for dusky sharks. Global Population Analysis In terms of other threats to the habitat of the global population of dusky PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 sharks, the WEG petition cites a general statement about the rate of development in the United States and abroad, and the resultant destructive impact on coastal habitat (Camhi et al., 1998), but does not provide any details on how this development is destroying specific dusky shark habitat or contributing to its extinction risk. Broad statements about generalized threats to the species do not constitute substantial information indicating that listing under the ESA may be warranted. Factor A Conclusion We conclude that the information presented in the WEG petition on threats from the modification of habitat does not provide substantial information indicating that listing is warranted for the global population or NW Atlantic population. However, we acknowledge that although there is no specific information at this time on the effects of the oil spill on the NW Atlantic population, the petition did reference a study (Hueter and Gelsleichter, 2010) that is currently looking at the sub-lethal impacts of oil exposure, with dusky sharks listed as a target species. We may re-examine this factor as new information becomes available. The NRDC petition did not identify habitat modification or destruction as a threat to the NW Atlantic population. Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes NW Atlantic Population Analysis The WEG petition presents information on threats from commercial and recreational overexploitation for the global population and the NW Atlantic population separately. However, in discussing the ‘‘domestic’’ commercial and recreational exploitation of the global population, the petition focuses entirely on information concerning the NW Atlantic population. In this section, the petition states ‘‘The dusky shark is subject to overfishing domestically . . . throughout its range, including in the NWA/GOM [NW Atlantic] and Pacific’’ and references the latest Southeast Data, Assessment, and Review (SEDAR) stock assessment report for the dusky shark (henceforth referred to as ‘‘SEDAR 21’’) (SEDAR, 2011). However, this statement is incorrect, as SEDAR 21 did not examine the status of the entire dusky shark population or the Pacific population of dusky sharks, only the Northwest Atlantic and Gulf of Mexico stock. Information from the petitions suggests that the primary threat to the E:\FR\FM\17MYP1.SGM 17MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules NW Atlantic population is from fishing pressure by commercial and recreational fisheries. Dusky sharks off the U.S. East Coast have been a prohibited species in U.S. Atlantic Highly Migratory Species (HMS) fisheries since 2000 (NMFS, 1999), meaning that neither U.S. commercial nor recreational fishers are allowed to legally land this species. However, according to the results from SEDAR 21, the stock is still overfished with overfishing occurring. This suggests that the species continues to be caught as bycatch in pelagic and bottom longline fisheries and/or is misidentified by recreational and commercial fishers and seafood dealers, with other sharks recorded as dusky shark in landings, log books and dealer ´ reports (Cortes et al., 2006; NMFS, 2012a). Historically, the fishing mortality of this population was estimated to be low from 1960 through the early 1980s, but was thought to have increased to unsustainably high levels in the 1990s, before declining following the prohibition of dusky landings in 2000 (SEDAR, 2011). In the 2006 stock assessment for the Northwest Atlantic and Gulf of Mexico dusky shark population, it was estimated that the stock (in 2004) had suffered significant declines from its virgin population size ´ (in 1960) (Cortes et al., 2006). Three forms of Bayesian surplus production models predicted depletions of over 80 percent, an age-structured production model estimated a decline of 62–80 percent, and a catch-free age-structure production model estimated a decrease in the spawning stock biomass (SSB) of ´ 92–93 percent (Cortes et al., 2006; SEDAR, 2011). The stock assessment also found statistically significant decreasing trends in the average weight of the catch, suggesting that the majority of dusky sharks being caught were immature and that the stock was heavily ´ exploited (Cortes et al., 2006). Given the historically heavy fishing on this population, and its low productivity and hence high vulnerability to exploitation, the stock assessment projected that the Northwest Atlantic and Gulf of Mexico population required ´ 100 to 400 years to rebuild (Cortes et al., 2006; SEDAR, 2011). Based on these results, NMFS declared the dusky shark stock in the Northwest Atlantic and Gulf of Mexico to be overfished with overfishing occurring (71 FR 65087; November 7, 2006) and established a rebuilding plan in July 2008. In 2011, the status of the Northwest Atlantic and Gulf of Mexico stock was re-evaluated through the SEDAR process (76 FR 62331; October 7, 2011), with results that indicate this dusky shark VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 population is still overfished and continues to experience overfishing, even though harvest of the species is prohibited (SEDAR, 2011). The NRDC petition contends that although SEDAR 21 determined that the stock is experiencing overfishing, the current fishing mortality (F) values calculated by SEDAR 21 are underestimations and therefore ‘‘the percent reduction needed to end overfishing (a 36 percent reduction) as well as rebuild the fishery (62 percent) are underestimated.’’ SEDAR 21 selected a range of 44.2—65 percent as the discard mortality for dusky sharks caught by bottom longline (BLL) gear (SEDAR, 2011). The petition states that these estimates ‘‘represent average values across age classes and are substantially lower than capture mortality rates of juvenile dusky sharks, a major source of bycatch’’ and references Morgan and Burgess (2007) and Romine et al. (2009). These two papers present at-vessel mortality rates for different age groups of dusky sharks on BLL gear. Morgan and Burgess (2007) estimated an 87.7 percent mortality rate for young dusky sharks (0–100 cm fork length, FL) and an 82.4 percent mortality rate for juveniles (101–231 cm FL). Romine et al. (2009) estimated mortality rates that ranged between 69 and 79 percent for dusky sharks < 230 cm FL. These higher rates may suggest that juveniles are more susceptible to atvessel mortality on BLL gear than previously assumed, with subsequent discards perhaps underestimated in SEDAR 21. Furthermore, the NRDC petition references the SEDAR 21 results that show additional declines (relative to the virgin (1960) population) in biomass and SSB between the 2006 and 2011 assessments (SEDAR, 2011). SEDAR 21 suggested that the declines in SSB can be attributed to decreasing numbers of older, heavier, sharks, but is partially compensated for by increases in pup survival (i.e., density dependent recruitment) as the abundance of dusky sharks (in numbers) has increased from 2004 to 2009 (SEDAR, 2011). However, the petition contends that the ‘‘significant impacts of continuing fishing pressures—and fishing-related mortality—on juvenile dusky sharks’’ and their late age at sexual maturity (hence, the long time needed to survive before reproducing) makes this scenario unlikely unless current fishing mortality is reduced. The NRDC petition also provides information on bycatch of NW Atlantic dusky sharks in U.S. commercial fisheries, and references NMFS U.S. National Bycatch Report for data in PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 29105 2005 and 2006 (NMFS, 2011). The report estimates that 2,739 sharks were caught as bycatch on reef fish handline and BLL gear, and 570,896 live pounds (lbs) (258,954 kg) in the shark BLL fishery, but notes that the shark BLL estimates are currently being reviewed. In addition, the petition states that the recreational fishery has accounted for around 47 percent of the total catch of dusky sharks (from 2001–2009) even though harvest of this species has been prohibited since 2001. Although total catch has decreased substantially since before the ban (by around 85 percent), dusky sharks are still being caught in both the recreational and commercial fisheries, and under the current fishing mortality rate, the stock has only an 11 percent probability of recovery by 2480 (400 years) (SEDAR, 2011; NMFS, 2012a). The fishery management terms ‘‘overfishing’’ and ‘‘overfished,’’ and targets such as ‘‘rebuilding’’ and ‘‘recovery,’’ are defined under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and are based on different criteria than threatened or endangered statuses under the ESA. As such, they do not necessarily indicate that a species may warrant listing under the ESA because they do not necessarily have any relationship to a species’ extinction risk. Overutilization under the ESA means that a species has been or is being harvested at levels that pose a risk of extinction. In other words, the species is being harvested faster than it can replace itself. Since 1960 (assumed pre-fishing levels), the dusky shark biomass and SSB have declined by approximately 80 and 85 percent, respectively, and, as the petition notes, dusky sharks are inherently vulnerable to overexploitation due to their life history characteristics, with a ‘‘very low natural intrinsic rate of population increase, one of the lowest intrinsic rebound potentials and lowest productivities of all sharks.’’ Given this ´ biological vulnerability (Cortes et al., 2012), the significant population decline, and the fact that this population is still experiencing fishing pressure from both commercial and recreational fishers with no change in its status despite fishing prohibitions, overutilization by commercial and/or recreational fisheries may present a threat that warrants further exploration to see if it is contributing to the Northwest Atlantic population’s risk of extinction that is cause for concern. E:\FR\FM\17MYP1.SGM 17MYP1 29106 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules Factor B Conclusion for NW Atlantic Population We conclude that the information presented in the petitions and information from our files indicates that the petitioned action to list the NW Atlantic population may be warranted due to threats from overutilization by commercial and/or recreational fisheries. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Global Population Analysis In terms of threats of overexploitation on the global population, the petitions reference the international shark fin trade as contributing to the decline of the dusky shark. The WEG petition cites Musick et al. (2007) when it states that the dusky shark represents at least 1.2— 1.7 percent of the fins auctioned in Hong Kong, the world’s largest fin trading center. However, in the original study that produced those estimates (Clarke et al., 2006a), the authors noted that the dusky shark had the ‘‘least reliable results’’ (referring to the above percentage proportions in the Hong Kong fin market) because the genetic primer used to identify shark fin species did not differentiate between dusky and Galapagos sharks (Clarke et al., 2006a). Thus, the authors caution that the percentage estimates of 1.2 to 1.7 ‘‘most likely overestimates this species’ proportion in the trade’’ (Clarke et al., 2006a). In addition, the WEG petition incorrectly cites Musick et al. (2007) claiming that ‘‘between 144,000 and 767,000 dusky sharks are represented in the shark fin trade each year or, in biomass, 6,000 to 30,000 million tons.’’ The biomass numbers are in metric tons, not million tons (i.e., 6,000 mt to 30,000 mt) (Musick et al. 2007; Clarke et al., 2006b); however, the petitions do not provide substantial evidence to indicate how these numbers relate to the global population size or data to indicate that the global population is in decline. Because dusky sharks have large fins with high fin needle content (a gelatinous product used to make shark fin soup), they fetch a high commercial price in the Asian shark fin trade (Clarke et al., 2006a) and thus are more likely to be kept when incidentally caught (Musick et al., 2007). Again, the petitions do not provide information on how the abundance and biomass of dusky sharks that are removed for the shark fin trade compare to global population numbers or biomass of dusky sharks, or how it subsequently translates to extinction risk. The WEG petition asserts that ‘‘studies suggest the dusky shark globally suffered a 64 92 percent decline in virgin biomass by 2004’’ but references SEDAR 21, which VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 only calculated declines for the Northwest Atlantic and Gulf of Mexico population, not the global population (SEDAR, 2011). The petition provides no information regarding the notion that equivalent declines are found elsewhere throughout the dusky shark range. For information on dusky shark abundance elsewhere in the world (i.e., not the NW Atlantic population), the WEG petition acknowledges that there are little available data. It provides information on fisheries that may land dusky sharks and the types of fishing gear used, but does not provide information on the status of these populations or any past or present numbers of the species in these areas. The WEG petition notes that in the Southwest Atlantic there are ‘‘little population data’’ but that the shark is taken both directly and indirectly by pelagic longline (PLL) and artisanal fisheries operating in these waters. However, the petition does not provide any data, such as catch or landings data, to show how these fisheries are threats to the dusky shark global population or how they contribute to its extinction risk, nor do we have that information in our files. The WEG petition states that in the Mediterranean, again, that there are ‘‘little data available on population trends’’ with the IUCN deeming the population ‘‘data deficient.’’ Although the petition states that ‘‘Nevertheless, there are numerous accounts of dusky sharks taken as both target and bycatch along the North African and Sicilian coasts . . . unsustainably,’’ the reference the WEG uses to support this statement actually states that the species is not frequently caught in this area (‘‘caught sporadically in . . . fisheries, principally off North Africa and rather less frequently by [other fisheries] in the Sicilian Channel . . . and rarely observed on fishmarkets in the Mediterranean’’) (Musick et al., 2007). Neither the petition, nor its reference, provides any information on catch numbers or evidence that take of dusky sharks is unsustainable or cause for concern. For the population found off the Australian coast, the WEG petition states that ‘‘Fisheries in Australian . . . waters have historically exploited dusky shark recreationally and continue to do so’’ and mentions the use of demersal gillnets to target neonates and dusky sharks less than 3 years of age, capturing ‘‘18–28 percent of the population in its first year.’’ The reference for these statements is Musick et al. (2007) which provides information from a stock assessment (Simpfendorfer, 1999) and also cites McAuley et al. (2005) as a second assessment of the dusky shark PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 population found off southwestern Australia. We could not verify the publication title of the McAuley et al. (2005) citation because the bibliography for the Musick et al. (2007) publication was not included by the petitioner, nor is this full reference included in the bibliography for the Musick et al. (2009) publication (which appears to be an updated version of the Musick et al. (2007) publication). We consider the second assessment for the dusky shark population found off southwestern Australia to be the McAuley et al. (2007) publication, which was also cited by the petitioner. It should also be noted that the fishery described by Musick et al. (2007) as using demersal gillnets is a commercial fishery, not a recreational fishery. According to the stock assessments, neonate and juvenile C. obscurus have been the primary targets of the demersal gillnet fishery operating off southwestern Australia since the 1970s (Simpfendorfer, 1999; McAuley et al., 2007). Due to the selectivity of the gillnet mesh sizes used in the fishery, very few dusky sharks older than 4 years are caught (Simpfendorfer, 1999), but these older individuals are also largely immune to exploitation because their distribution tends to be outside of the fishery’s operational area (McAuley et al., 2007). Historically, catches of dusky sharks in this fishery grew from under 100 mt per year in the late 1970s to just under 600 mt in 1998/1999 before fishery management restrictions reduced and stabilized the catch at around 300 mt per year (McAuley et al., 2007). Both assessments used demographic models to estimate the impacts of fishing mortality on the shark stock, and specifically examined the 1994 and 1995 cohorts. According to the Simpfendorfer (1999) assessment, the rates of fishing mortality experienced by the 1994 and 1995 cohorts were sustainable. In fact, Simpfendorfer (1999) estimated that up to 4.3 percent of each class could be sustainably harvested each year, or, in presenting a scenario of unequal exploitation distribution, estimated that up to 64.6 percent of the youngest age-class could be removed without decreasing the population, as long as no other age-class was harvested. McAuley et al. (2007) presented an update to this assessment using revised biological parameters and age-specific rates of fishing mortality. Results from McAuley et al. (2007) confirm the sustainability of the rates of fishing mortality experienced by the 1994 and 1995 dusky shark cohorts, but suggest that the 4.3 percent exploitation may be overly optimistic for older dusky E:\FR\FM\17MYP1.SGM 17MYP1 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules sharks. Instead, the assessment found that exploitation above 1 percent per year on dusky sharks older than 10 years had a 55 percent probability of resulting in a decline in the stock (McAuley et al., 2007). As such, the authors attribute the declining trend in catch rates in the target demersal gillnet fishery to the unquantified, yet probable, harvest of older sharks outside of the fishery, resulting in fewer breeders and thus fewer recruits to the population. However, in 2006, the Western Australian Government implemented a number of fishery management restrictions for its commercial fisheries, with the purpose of reducing mortality, particularly of dusky and sandbar sharks, and achieving dusky shark target biomass levels of 40 percent of the virgin biomass by 2040 (Musick et al., 2007; Musick et al., 2009). One of these measures involved setting a maximum size limit for dusky sharks (Musick et al., 2007; Musick et al., 2009), thereby protecting the stock breeding biomass from being harvested by fisheries outside of the demersal gillnet fishery. According to the reference cited by the petitioner, ‘‘These management measures should arrest further declines’’ and encourages continued monitoring of the stock (Musick et al., 2007). Thus, given the results of the stock assessments that show sustainable fishing mortality on the heavily targeted dusky neonates, and current regulations that arrest the harvest of the more sensitive older shark population, we do not find evidence that suggests overutilization of the dusky shark population off western Australia is a threat to the existence of the global dusky shark population. In the Indian Ocean, the WEG petition states that the dusky shark is mainly taken as bycatch in PLL tuna fisheries gear, but also by small commercial fisheries and recreational long-line and gillnet fishing. It also states that beach meshing is used to catch juveniles and adolescents. It does not provide details on any past or present numbers in this region; however, it references a study by Dudley et al. (2005), which analyzed catch rate and size frequency of dusky sharks caught in protective beach nets off the coast of South Africa. The results from this study showed no significant linear trend in catch rate over the period of 1978 to 1999 (Dudley et al., 2005). The authors of the study also mentioned that group catches of dusky sharks usually coincided with the annual ‘‘sardine run,’’ with size and catch distribution influenced by the attempts to remove the nets before the influx of sardine shoals (Dudley et al., 2005; VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 Musick et al., 2007). In a follow-up study that looked at more recent years of catch per unit effort (CPUE) information (extending the dataset from 1978 to 2003), the authors came to the same conclusion: the dusky shark did not show any indications of population decline, the CPUE trend was stable (Dudley and Simpfendorfer, 2006). In terms of other types of indirect catch of the global population of dusky sharks, the WEG petition makes generalized statements about sharks comprising a high percentage of nontarget bycatch in commercial fisheries targeting swordfish and tuna in the Southwest Atlantic. However, the petition does not provide this percentage, nor does it or the reference used as support (Mandelman et al., 2008), provide information on how much of this bycatch in the Southwest Atlantic can be attributed to dusky sharks. In fact, the reference only examines historical catches of the Northwest Atlantic and Gulf of Mexico dusky shark population, excluding catch records from the Caribbean and areas farther south (Mandelman et al., 2008). The WEG petition then proceeds to list countries that operate PLL vessels in the South Atlantic and mentions different types of fisheries operating in the Mediterranean and Indian Ocean that may also catch dusky sharks as bycatch. However, it fails to provide any information on the actual catch numbers, catch or population trends, past or present numbers of dusky sharks in this region, or information on how these fisheries contribute to the extinction risk of the global population of dusky sharks. The WEG petition also provides a figure of the distribution of hooks deployed by all International Commission for the Conservation of Atlantic Tunas (ICCAT) parties from 2000–2006 but does not explain the relevance of the figure in relation to dusky shark catches or overutilization of the global dusky shark population. For recreational catch, the WEG petition follows the same pattern of describing the type of fishing gear used to catch dusky sharks. However, it fails to provide substantial information on numbers, population trends, or support for how recreational fisheries may be contributing to the extinction risk of the global dusky shark population. Factor B Conclusion for Global Population Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, such as being a target of fisheries or caught on specific fishing gear, do not constitute substantial PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 29107 information indicating that listing may be warranted. With the exception of the NW Atlantic, the petitioners do not provide information on catch rates, landings, population trends, abundance numbers, or other information indicating that the global dusky shark may be responding in a negative fashion to fisheries or specific fishing gear. Because the petitioners have failed to provide substantial information that the NW Atlantic population constitutes a significant portion of the global population’s range, we conclude that the information presented in the petitions on threats from overutilization does not provide substantial information indicating that listing may be warranted for the global population. Factor D: Inadequacy of Existing Regulatory Mechanisms NW Atlantic Population Analysis The petitions assert that the inadequacy of existing Federal, state, or international regulatory mechanisms require that the dusky shark be listed under the ESA. As noted above, the dusky sharks off the U.S East Coast were classified as a prohibited species in the 1999 NMFS Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish and Sharks (NMFS, 1999). In 2003, Amendment 1 to this FMP established a Mid-Atlantic shark closure in part to protect dusky sharks (NMFS, 2003). Beginning in January 2005, NMFS closed this Mid-Atlantic area to bottom longline fishing from January 1 through July 31 of every year, partially due to reports of high catches and mortality rates of dusky sharks on bottom longline gear in this area (NMFS, 2012a). After the 2006 stock assessment found the Northwest Atlantic and Gulf of Mexico dusky shark population to be overfished ´ with overfishing occurring (Cortes et al., 2006), we established a rebuilding plan for this stock in July 2008, with Amendment 2 to the Consolidated Atlantic HMS FMP (NMFS, 2007). This amendment focused on minimizing the bycatch of dusky sharks by: reducing the overall retention limits of nonsandbar large coastal shark species, no longer allowing the species to be collected under display permits, and prohibiting similar-looking species from being retained by the recreational fishery. Although SEDAR 21 still determined the dusky shark stock to be overfished and experiencing overfishing in 2011, it concluded that the prohibition on dusky shark catch in 2000 has been an effective management tool in decreasing fishing mortality rates (F). Specifically, SEDAR 21 estimated that F has decreased by 11 percent from E:\FR\FM\17MYP1.SGM 17MYP1 29108 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules 2000 (F = 0.385) to 2009 (F = 0.056). However, even with this decrease in F, SEDAR 21 calculated that the stock has only an 11 percent probability of rebuilding by 2408 (400 years). This does not necessarily imply that the stock will go extinct. Dusky sharks do have inherently low population growth rates with no fishing pressure, and there is evidence that the species is still being caught by both commercial and recreational fisheries (NMFS, 2011b; NMFS, 2012a; NMFS 2012b). Despite the fact that existing regulations have prohibited harvest of this species, these factors may be cause for concern in regard to its extinction risk. As required under the MSA, we must implement additional conservation and management measures to rebuild the overfished dusky shark stock, and, as such, have proposed management measures that are expected to have a 70 percent probability of rebuilding the stock by 2099 (November 26, 2012; 77 FR 70552). The comment period for these proposed measures ended on February 12, 2013, and, after reviewing the comments, we announced that we would reconsider the proposed measures in a separate future action. We felt this was necessary to explore different approaches for ending overfishing and rebuilding dusky sharks, and fully consider and address public comments. Thus, because management measures are still in the process of being determined, we cannot comment on their likelihood of being effective in minimizing the species’ extinction risk at this time. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Factor D Conclusion for NW Atlantic Population Therefore, we conclude that the petitions, and information from our files, indicate that the petitioned action may be warranted for the NW Atlantic population as current regulatory mechanisms may not be adequate to protect the NW Atlantic population from extinction risk. Global Population Analysis For international regulations, the WEG petition mentions some of the international conservation agreements and plans to protect sharks, such as the Food and Agriculture Organization of the United Nations (FAO) International Plan of Action for the Conservation and Management of Sharks, but states that these measures are only voluntary. The petition presents no information regarding compliance with the voluntary measures or the impact of any non-compliance on the global dusky shark population. The WEG petition also mentions that ‘‘individual countries VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 such as Australia have made minor adjustments to their dusky shark quotas in the wake of depletion, but there is no evidence that these management measures have staved off decline of individual populations’’ and cites Musick et al. (2007) and NMFS’s 2010 Shark Finning Report to Congress (NMFS, 2010). As mentioned previously, Musick et al. (2007) references an assessment of the dusky shark population off southwestern Australia that found the stock was more susceptible to overfishing than previously thought; however, the authors also note that since 2006, the Western Australian Government has implemented additional management measures in all commercial fisheries, such as maximum size limits to protect older dusky sharks, which ‘‘should arrest further declines’’ of the dusky shark population (Musick et al., 2007). The NMFS 2010 Shark Finning Report to Congress concluded that ‘‘great strides continue to be made in shark conservation, data gathering, management, research, and education on a national and global scale that will contribute to sustainable management of sharks’’ (NMFS, 2010). Although perhaps more regulations are needed for the conservation of all shark species in general, the WEG petition does not provide substantial evidence to support the assertion that current regulatory mechanisms are insufficient to prevent the endangerment or extinction of the global dusky shark population. The WEG petition notes that finning regulations are ‘‘generally inadequate’’ for protecting the global dusky shark population because they may still be caught either directly or indirectly. It acknowledges that finning ‘‘contributes to a very high mortality rate for this species’’ and stresses that finning is ‘‘now a major factor in the commercial exploitation of sharks worldwide,’’ suggesting it is a threat to the global population of dusky sharks. Finning regulations are a common form of shark management regulation and have been adopted by far more countries and regional fishery management organizations than the petition lists (see HSI, 2012). In addition, a number of countries have also enacted complete shark fishing bans, with the Bahamas, Marshall Islands, Honduras, Sabah (Malaysia), and Tokelau (an island territory of New Zealand) adding to the list in 2011, and the Cook Islands in 2012. Shark sanctuaries can also be found in the Eastern Tropical Pacific Seascape (which encompasses around 2,000,000 km2 and includes the Galapagos, Cocos, and Malpelo Islands), PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 in waters off the Maldives, Mauritania, Palau, and French Polynesia. Countries that prohibit the sale or trade of shark fins or products include the Bahamas, CNMI, American Samoa, Cook Islands, Egypt, French Polynesia, Guam, Republic of Marshall Islands, and Sabah. Additionally, many cities in Canada also prohibit the sale or trade of shark fins/products; thus, providing further international protection for the global dusky shark population. The WEG petition also mentions that lack of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) protections (specifically an Appendix II listing) and international reporting requirements makes ESAlisting more urgent and ‘‘exacerbates the paucity of international regulation of bycatch.’’ Although a CITES Appendix II listing or international reporting requirements would provide better data on the global catch and trade of dusky sharks, the lack of listing or requirements would not suggest that current regulatory mechanisms are inadequate to protect the global dusky shark population from extinction. Factor D Conclusion for Global Population Other than the information presented for the NW Atlantic population, neither the information in the petitions, nor information in our files, suggest that the global dusky shark population is at risk of extinction from the inadequacy of existing regulatory mechanisms. Because the petitions do not present substantial evidence that the NW Atlantic population constitutes a significant portion of the dusky shark’s range, we conclude that the petitions do not present substantial information on threats from the inadequacy of existing regulatory mechanisms that would indicate that listing may be warranted for the global population. Factor E: Other Natural or Manmade Factors NW Atlantic Population Analysis The petitions contend that ‘‘biological vulnerability’’ in the form of slow growth rates, late maturity, and shorter reproductive cycles make the species particularly vulnerable to overfishing and slow to recover. In an ecological ´ risk assessment, Cortes et al. (2012) assessed 20 shark stocks caught in association with Atlantic PLL fisheries and estimated their productivity values and susceptibility to the fishery. The authors then considered those values to come up with an overall vulnerability ranking, which was defined as ‘‘a measure of the extent to which the E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules impact of a fishery [Atlantic PLL] on a species will exceed its biological ability ´ to renew itself’’ (Cortes et al., 2012). Out of the 20 assessed shark stocks, the Northwest Atlantic dusky shark population ranked 6th in lowest median productivity value (r = 0.043) but 17th in susceptibility to the Atlantic PLL fishery (indicating low susceptibility) ´ (Cortes et al., 2012). However, depending on the method used to calculate the vulnerability ranking, dusky sharks ranged from being at a low (17th) to high (6th) risk from Atlantic PLL fisheries (vulnerability rankings = ´ 6th, 12th, and 17th) (Cortes et al., 2012). On bottom longline fisheries, information in the petition and in our files shows that the species suffers high mortality from incidental capture (Morgan and Burgess, 2007; Romine et al. 2009). Factor E Conclusion for NW Atlantic Population We conclude that the information in the petition and in our files suggests that biological vulnerability of the species may be a threat to the NW Atlantic population as this population is already severely depleted and still experiencing levels of fishing pressure that may be of concern. Thus, its high observed at-vessel fishing mortality and low productivity may hinder the success of ongoing and future recovery efforts. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS Global Population Analysis In addition to biological vulnerability, the WEG petition asserts that natal homing, geographic preferences, and misidentification of fins makes the dusky shark particularly vulnerable to overfishing, and that pollution may lead to a population collapse, but does not provide specific or substantial information on the current or likely future effects of these factors on the extinction risk of the global dusky shark population. Factor E Conclusion for Global Population Other than the information presented in the petition and in our files regarding Factor E with respect to the NW Atlantic population, the petition provides only broad general assertions regarding the impact of other natural or manmade factors to the global population. Because the information in the petitions in combination with the information in our files do not present substantial information indicating that the NW Atlantic population constitutes a significant portion of the species’ range, we conclude that the information presented in the petitions and in our VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 29109 files is insufficient to indicate that there has been or may be any negative effect on the global dusky shark’s ability to recover due to pollution impacts, misidentification rates, global warming, or other biological or ecological vulnerability factors. whether listing the species as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing the species is found to be warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule. Summary of Section 4(a)(1) Factors Information Solicited We conclude that the petitions do not present substantial scientific or commercial information indicating that any of the section (4)(a)(1) factors may be causing or contributing to an increased risk of extinction for the global population of dusky sharks. However, we also conclude that the petitions present substantial scientific or commercial information indicating that a combination of three of the section 4(a)(1) factors: overutilization for commercial, recreational, scientific, or educational purposes; inadequate existing regulatory mechanisms; and other natural or manmade factors may be causing or contributing to an increased risk of extinction for the NW Atlantic population of dusky sharks. Petition Finding Global Population After reviewing the information contained in the petition, as well as information readily available in our files, and based on the above analysis, we conclude that the petitions do not present substantial scientific or commercial information indicating that the petitioned action may be warranted for the global population. NW Atlantic Population We conclude that the petitions present substantial scientific information indicating the petitioned action of listing the NW Atlantic population of dusky sharks as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS’ implementing regulations (50 CFR 424.14(b)(2)), we will commence a status review of the NW Atlantic population. During the status review, we will determine whether the population identified by the petitioners meets the DPS policy’s criteria, and if so, whether the population is in danger of extinction (endangered) or likely to become so within the foreseeable future (threatened) throughout all or a significant portion of its range. We now initiate this review, and thus, the NW Atlantic dusky shark is considered to be a candidate species (69 FR 19975; April 15, 2004). Within 12 months of the receipt of the petition (November 14, 2012), we will make a finding as to PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information relevant to whether the NW Atlantic population of dusky sharks is a DPS and whether it is threatened or endangered. Specifically, we are soliciting information, including unpublished information, in the following areas: (1) The discreteness, as defined in the DPS Policy, of the NW Atlantic population; (2) the significance, as defined in the DPS Policy, of the NW Atlantic population; (3) historical and current distribution and abundance of this population throughout its range; (4) historical and current population trends; (5) life history in NW Atlantic and Gulf of Mexico waters; (6) at-vessel and post-release mortality rates of dusky sharks on different types of fishing gears; (7) historical and current data on dusky shark bycatch and retention in commercial and recreational fisheries in the NW Atlantic and Gulf of Mexico waters; (8) historical and current data on dusky shark discards in commercial and recreational fisheries in the NW Atlantic and Gulf of Mexico waters; (9) data on the trade of NW Atlantic dusky shark products, including fins, jaws, and teeth; (10) any current or planned activities that may adversely impact the species; (11) ongoing or planned efforts to protect and restore the population and its habitat; (12) population structure information, such as genetics data; and (13) management, regulatory, and enforcement information. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter’s name, address, and any association, institution, or business that the person represents. References Cited A complete list of references is available upon request from NMFS Protected Resources Headquarters Office (see ADDRESSES). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). E:\FR\FM\17MYP1.SGM 17MYP1 29110 Federal Register / Vol. 78, No. 96 / Friday, May 17, 2013 / Proposed Rules Dated: May 13, 2013. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2013–11862 Filed 5–16–13; 8:45 am] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS BILLING CODE 3510–22–P VerDate Mar<15>2010 15:26 May 16, 2013 Jkt 229001 PO 00000 Frm 00025 Fmt 4702 Sfmt 9990 E:\FR\FM\17MYP1.SGM 17MYP1

Agencies

[Federal Register Volume 78, Number 96 (Friday, May 17, 2013)]
[Proposed Rules]
[Pages 29100-29110]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11862]


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DEPARTMENT OF COMMERCE

National Ocean and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130214141-3141-01]
RIN 0648-XC515


Endangered and Threatened Wildlife; 90-Day Finding on Petitions 
To List the Dusky Shark as Threatened or Endangered Under the 
Endangered Species Act

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

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

-----------------------------------------------------------------------

SUMMARY: We, NMFS, announce a 90-day finding on petitions to list the 
dusky shark (Carcharhinus obscurus) range-wide or, in the alternative, 
the Northwest Atlantic and Gulf of Mexico population of the dusky shark 
as a threatened or endangered distinct population segment (DPS) under 
the Endangered Species Act (ESA), and to designate critical habitat 
concurrently with the listing. We find that the petitions present 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted for the Northwest Atlantic and Gulf 
of Mexico population of dusky shark; we find that the petitions fail to 
present substantial scientific or commercial information indicating 
that the petitioned action may be warranted for the dusky shark range-
wide. Therefore, we will conduct a status review of the Northwest 
Atlantic and Gulf of Mexico population of dusky shark to determine if 
the petitioned action is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
pertaining to this petitioned species from any interested party.

DATES: Information and comments on the subject action must be received 
by July 16, 2013.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2013-0045, by any of the 
following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0045, click the ``Comment Now!'' icon,

[[Page 29101]]

complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
     Fax: 301-713-4060, Attn: Maggie Miller.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous), although submitting comments anonymously will prevent NMFS 
from contacting you if NMFS has difficulty retrieving your submission. 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of 
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On November 14, 2012, we received a petition from WildEarth 
Guardians (WEG) to list the dusky shark (Carcharhinus obscurus) as 
threatened or endangered under the ESA throughout its entire range, or, 
as an alternative, to list the Northwest Atlantic/Gulf of Mexico DPS as 
threatened or endangered. The petitioners also requested that critical 
habitat be designated for the dusky shark under the ESA. On February 1, 
2013, we received a petition from Natural Resources Defense Council 
(NRDC) to list the northwest Atlantic DPS of dusky shark as threatened, 
or, as an alternative, to list the dusky shark range-wide as 
threatened, and a request that critical habitat be designated. The 
joint USFWS/NMFS petition management handbook states that if we receive 
two equivalent petitions for the same species and a 90-day finding has 
not yet been made on the earlier petition, then the later petition will 
be combined with the earlier petition and a combined 90-day finding 
will be prepared. Given that, this 90-day finding will address both the 
WEG and NRDC petitions for dusky shark. Copies of the petitions are 
available upon request (see ADDRESSES, above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned, during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'') 
policy clarifies the agencies' interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying a vertebrate species under the ESA (61 FR 4722; February 
7, 1996) (``DPS Policy''). A species is ``endangered'' if it is in 
danger of extinction throughout all or a significant portion of its 
range, and ``threatened'' if it is likely to become endangered within 
the foreseeable future throughout all or a significant portion of its 
range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered based on any one 
or a combination of the following five section 4(a)(1) factors: (1) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)). In evaluating whether a population 
constitutes a significant portion of the species' range, we consider 
the portion of the range to be significant if its contribution to the 
overall viability of the species is so important that, without it, the 
species may be in danger of extinction. These considerations are 
consistent with interpretations and principles in the NMFS and USFWS 
Draft Policy on Interpretation of the Phrase ``Significant Portion of 
Its Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species,'' which we consider as nonbinding 
guidance in making listing determinations until a final policy is 
published. In the draft policy, the Services explain that this 
definition of ``significant'' for the purpose of analyzing whether a 
population constitutes a significant portion of a species range differs 
from the definition of ``significant'' defined in the Services' DPS 
Policy and used for DPS analysis (76 FR 76987; December 9, 2011).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-

[[Page 29102]]

day finding stage, in making a determination that a petitioned action 
``may be'' warranted. As a general matter, these decisions hold that a 
petition need not establish a ``strong likelihood'' or a ``high 
probability'' that a species is either threatened or endangered to 
support a positive 90-day finding.
    We evaluate the petitioners' request based upon the information in 
the petition including its references and the information readily 
available in our files. We do not conduct additional research, and we 
do not solicit information from parties outside the agency to help us 
in evaluating the petition. We will accept the petitioners' sources and 
characterizations of the information presented if they appear to be 
based on accepted scientific principles, unless we have specific 
information that indicates that the petition's information is 
incorrect, unreliable, obsolete, or otherwise irrelevant to the 
requested action. Information that is susceptible to more than one 
interpretation or that is contradicted by other available information 
will not be dismissed at the 90-day finding stage, so long as it is 
reliable and a reasonable person would conclude that it supports the 
petitioners' assertions. In other words, conclusive information 
indicating that the species may meet the ESA's requirements for listing 
is not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information alone negates a positive 90-day 
finding if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating that the subject species may be 
either threatened or endangered, as defined by the ESA. First, if the 
petition requests listing of a subspecies or a DPS, we evaluate whether 
the information presented in the petition, along with the information 
readily available in our files, indicates that the petitioned entity 
constitutes a ``species'' eligible for listing under the ESA, pursuant 
to the DPS Policy. Next, we evaluate whether the information indicates 
that the species faces an extinction risk that is cause for concern 
throughout all or a significant portion of its range; this may be 
indicated in information expressly discussing the species' status and 
trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1). 
Information presented on impacts or threats should be specific to the 
species and should reasonably suggest that one or more of these factors 
may be operative threats that act or have acted on the species to the 
point that it may warrant protection under the ESA. Broad statements 
about generalized threats to the species, or identification of factors 
that could negatively impact a species, do not constitute substantial 
information indicating that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but the classification alone may not 
provide the rationale for a positive 90-day finding under the ESA. For 
example, as explained by NatureServe, their assessments of a species' 
conservation status do ``not constitute a recommendation by NatureServe 
for listing under the U.S. Endangered Species Act'' because NatureServe 
assessments ``have different criteria, evidence requirements, purposes 
and taxonomic coverage than government lists of endangered and 
threatened species, and therefore these two types of lists should not 
be expected to coincide'' (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 Dusky Shark

    The dusky shark is part of the Carcharhinidae family. It is a 
coastal-pelagic species that inhabits warm temperate and tropical 
waters (FAO, 2012). It has a global but patchy distribution, with its 
range-wide occurrence poorly known. In the Northwest Atlantic, dusky 
sharks can be found from southern Massachusetts and Georges Bank to 
Florida, the Bahamas, Cuba, and the northern Gulf of Mexico (NMFS, 
2011a). Dusky shark distribution off Central America is not well known 
(NMFS, 2011a). In the Eastern Pacific, the species is thought to occur 
off the coast of southern California to the Gulf of California, 
Revillagigedo Islands, and possibly Chile (NOAA, 1998; Musick et al., 
2007). The species can also be found off the coasts of Australia, 
Nicaragua, and southern Brazil (NMFS, 2011a). According to Dudley et 
al. (2005), the shark's distribution in the western Indian Ocean 
extends from the Red Sea to the southern tip of Africa and off the 
coast of Madagascar. The species is also thought to be found in the 
Mediterranean Sea, and off the coasts and continental shelves of Japan, 
China, Vietnam, New Caledonia, and North Africa, possibly around 
oceanic islands off western Africa (Musick et al., 2007; NMFS, 2011a).
    The dusky shark is a highly migratory species that occurs in both 
inshore (surf zone) and offshore waters, from the surface to depths as 
deep as 1,883 feet (574 m) (NOAA, 1998; Hoffmayer et al., 2010; NMFS, 
2011a). The shark avoids areas of lower salinity and is rarely found in 
estuarine environments (NOAA, 1998; SEDAR, 2011). Along the U.S. 
coasts, the dusky shark undertakes long temperature-related migrations, 
moving north in the summer as waters warm and retreating south in the 
fall as water temperatures drop (NMFS, 2011a). Seasonal migrations have 
also been documented off South Africa (NOAA, 1998). In western 
Australia, both adolescents and adults move inshore during the summer 
and fall, with neonates occupying separate inshore areas (NOAA, 1998).
    The general life history pattern of the dusky shark is that of a 
long lived (oldest known female shark aged at 39 years), slow growing, 
and late maturing species (SEDAR, 2011). The dusky shark is a large, 
fairly slender shark, with an average total length (TL) of around 11.8 
feet (360 cm) and weight of 400 pounds (180 kg) (NMFS, 2011a). 
Northwest Atlantic and Gulf of Mexico dusky males attain sexual 
maturity at around 280 cm TL, or 19 years, and females reach sexual 
maturity at 284 cm TL, or 21 years (NOAA, 1998; NMFS, 2011a). Similar 
maturity sizes have been observed for dusky sharks from South

[[Page 29103]]

Africa and Australia (NOAA, 1998). The dusky shark is viviparous (i.e., 
gives birth to live young), with a gestation period of around 18 months 
and a triennial reproductive cycle (SEDAR, 2011). Litter sizes range 
between 3 and 14 pups (NMFS, 2011a; SEDAR, 2011) with the pupping 
months for the Northwest Atlantic and Gulf of Mexico dusky population 
occurring from May to June. Young are born at sizes of 33 to 39 inches 
(85--100 cm) (NMFS, 2011a).
    The shark has a rounded snout that is shorter than or equal to the 
width of its mouth and a low ridge along its back between its dorsal 
fins (NMFS, 2011a). The dorsal fin originates over or near the free 
rear tips of moderately large pectoral fins, and the second dorsal fin 
has a free tip length that is usually not more than twice its fin 
height (NMFS, 2011a; FLMNH, undated). The dusky shark is colored bronzy 
gray to blue gray above and white ventrally, and is also known as the 
bronze whaler or black whaler (NMFS, 2011a). It is a high trophic level 
predator (Cort[eacute]s, 1999) with a diet that includes a wide variety 
of bony and cartilaginous fishes and squid (NOAA, 1998). In the Indian 
Ocean, young dusky sharks have been observed feeding in large 
aggregations (NOAA, 1998).
    With respect to ESA listing actions, we added the dusky shark to 
our candidate species list in 1997 (62 FR 37560; July 14, 1997), but 
subsequently transferred the Northwest Atlantic and Gulf of Mexico 
population to our Species of Concern List in 2004 (69 FR 19975; April 
15, 2004). There is no mandatory Federal protection for candidate 
species or species of concern, but voluntary protection is urged.

Analysis of Petition and Information Readily Available in NMFS Files

    We evaluated the information provided in the petitions and readily 
available in our files to determine if the petitions presented 
substantial scientific or commercial information indicating that the 
petitioned actions may be warranted. The petitions contain information 
on the species, including the taxonomy, species description, geographic 
distribution, habitat, some population status and trends, and factors 
contributing to the species' decline. According to the WEG petition, at 
least four of the five causal factors in section 4(a)(1) of the ESA are 
adversely affecting the continued existence of the dusky shark, 
specifically: (A) Present and threatened destruction, modification, and 
curtailment of habitat and range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (D) inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. The focus of the NRDC 
petition is mainly on the northwest Atlantic population and identified 
the threats of: (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (D) inadequacy of existing 
regulatory mechanisms; and (E) other natural or manmade factors 
affecting its continued existence. In the following sections, we use 
the information presented in the petitions and in our files to 
determine whether the petitioned action may be warranted. We consider 
both the information presented for the global population of dusky 
sharks (as provided primarily in the WEG petition) as well as the 
information presented for the Northwest Atlantic and Gulf of Mexico 
population (provided in both petitions) on the specific ESA section 
4(a)(1) factors affecting the species' risk of extinction. We provide 
separate analyses and conclusions regarding the information presented 
by the petitioners and in our files for the global and for the 
Northwest Atlantic and Gulf of Mexico populations since we were 
petitioned to list either the global population (range-wide) or the 
Northwest Atlantic and Gulf of Mexico population.

Qualification of Northwest Atlantic and Gulf of Mexico Population as a 
DPS

    Both petitions assert that the Northwest Atlantic and Gulf of 
Mexico population (henceforth referred to as ``NW Atlantic 
population'') of dusky shark qualifies as a DPS because it is both a 
discrete and significant population segment of the species as defined 
in the DPS Policy. The NRDC petition states that the NW Atlantic 
population is discrete based on both genetic and spatial separation 
from other populations of dusky sharks. Genetic analyses indicate that 
the NW Atlantic population of dusky sharks is genetically 
differentiated from other populations of dusky sharks (Benavides et 
al., 2011; Gray et al., 2012). Results from both nuclear microsatellite 
DNA and mitochondrial control region analyses showed significant 
genetic differentiation between the western North Atlantic, South 
African, and Australian dusky shark populations, with a low frequency 
of migration between these populations (Benavides et al., 2011; Gray et 
al., 2012). Analysis of mitochondrial control regions also indicate 
that dusky sharks off the U.S. East Coast and in the Gulf of Mexico are 
not genetically distinct (Benavides et al., 2011), with tagging data 
that show a high frequency of movements between these two basins 
(SEDAR, 2011). Furthermore, Benavides et al. (2011) provides 
preliminary evidence of population structure between the NW Atlantic 
population and the dusky sharks in the Southwest Atlantic (off Brazil), 
suggesting that the NW Atlantic population, if it were depleted, would 
not likely be replenished by immigrant females from the Southwest 
Atlantic population.
    In addition to genetic separation, the NRDC contends that the NW 
Atlantic population is geographically separated from other populations. 
NRDC indicates that the NW Atlantic population primarily inhabits U.S. 
waters, and as such is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the ESA.
    Both petitions make the case that the NW Atlantic population is 
significant to the taxon. As described above, the NW Atlantic 
population appears to be genetically distinct and geographically 
separate from other dusky shark populations, with evidence of little 
mixing between neighboring populations (Benavides et al., 2011; Gray et 
al., 2012). Thus, the petitions reason that loss of this population 
would result in a significant gap in the range of the species because 
it is unlikely to be repopulated by sharks from other populations.
    Overall, based on the above analysis, we conclude that the 
information in the two petitions and in our files suggests that the NW 
Atlantic population of dusky shark may qualify as a DPS under the 
discreteness and significance criteria of the DPS Policy. We will 
explore this designation further and conduct a formal DPS analysis 
during the status review.

Qualification of the Northwest Atlantic and Gulf of Mexico as a 
Significant Portion of the Range (SPOIR)

    The NRDC petition specifically requests that we list the dusky 
shark as threatened because the species is likely to become endangered 
in a significant portion of its range (specifically throughout the 
habitat of the Northwest Atlantic, including the Gulf of Mexico). The 
WEG petition makes a similar statement: ``The Gulf of Mexico comprises 
a significant portion of the dusky shark's range'' and focuses part of 
its threats analysis on this portion. However, we conclude that neither 
petition presented substantial information, nor is there information in 
our files, to indicate that the Northwest

[[Page 29104]]

Atlantic and Gulf of Mexico is a significant portion of the dusky 
shark's range. In making this assessment we considered a portion of the 
range to be significant if its contribution to the overall viability of 
the dusky shark was so important that, without it, the dusky shark 
would be in danger of extinction. These considerations are consistent 
with interpretations and principles in the NMFS and USFWS Draft Policy 
on Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species,'' which we consider as nonbinding guidance in 
making listing determinations until a final policy is published (76 FR 
76987; December 9, 2011).
    As requested by the NRDC, we considered whether the loss of the 
northwest Atlantic portion would be expected to increase the entire 
species' vulnerability to extinction to the point where the global 
population of dusky sharks would be in danger of extinction. However, 
neither petition provides substantial evidence that the global 
population may be at risk of extinction from the loss of the Northwest 
Atlantic portion, nor do we have information that would support this in 
our files. The WEG petition presents information on threats to the 
global population, whereas the NRDC petition does not; however, neither 
petition presents information about the dependence of the global 
population on the Northwest Atlantic portion for survival. Therefore, 
we conclude that the petitions do not provide substantial evidence that 
the Northwest Atlantic may qualify as a significant portion of the 
dusky shark's range or that listing of the global population of shark 
may be warranted because the population is threatened or endangered in 
a significant portion of its range.
    Our analysis below considers the application of the ESA section 
4(a)(1) factors to the Northwest Atlantic population in determining 
whether the WEG and NRDC petitions present substantial information 
indicating that listing the Northwest Atlantic population may be 
warranted. In addition, we consider the application of the ESA section 
4(a)(1) factors to the global population in determining whether the WEG 
petition presents substantial information indicating that listing the 
global population may be warranted.

Factor A: Present and Threatened Destruction, Modification, or 
Curtailment of Habitat or Range

NW Atlantic Population Analysis
    The WEG petition identifies the 2010 Deepwater Horizon oil spill as 
an event that has degraded the marine environment used by the NW 
Atlantic population of dusky sharks, but does not provide any 
information on how the effects of the spill contribute to the 
extinction risk of the species. It cites a National Geographic Daily 
News article (Handwerk, 2010) that discusses the potential negative 
impacts of the spill on whale sharks, a large, filter-feeding species. 
When feeding, the whale shark swims with its mouth open, filtering over 
100,000 gallons of water an hour, capturing prey and passing the water 
through its gills (Handwerk, 2010). Due to this type of feeding 
behavior, scientists believe that the oil from the spill may have had 
lethal impacts to the whale sharks (Handwerk, 2010). Specifically, the 
article mentions sightings of whale sharks that were unable to avoid 
the oil slick, and suggests that the oil may have clogged the sharks' 
gills, suffocating them, or contaminated their prey; however, there 
have been no reports of dead whale sharks (Handwerk, 2010). The article 
does not mention the dusky shark or its exposure to the oil. The dusky 
shark is not a filter-feeder, and thus the effects of the oil spill on 
the whale shark do not provide information on the effects of the spill 
on the dusky shark. In addition, the WEG petition does not provide any 
information on how the oil has affected the dusky sharks' extinction 
risk, but mentions that researchers are currently studying the fatal 
and non-fatal impacts of the oil spill on the species. The petition 
does note that apex predators can bioaccumulate toxic chemicals that 
they ingest from their prey, but does not provide information on the 
amount of toxic substances from prey that the global population or the 
NW Atlantic population is absorbing, or how much this threat is a cause 
for concern in relation to extinction risk.
    The WEG petition notes that the oil ``has degraded sea grass 
habitat south of Chandeleur Island a known nursery for a number of 
shark species'' but does not identify if this location is a known 
nursery ground for the dusky shark. Neither the reference (CBD, 
undated) nor information in our files (NMFS, 2009) indicates that this 
is a nursery area for dusky sharks.
Global Population Analysis
    In terms of other threats to the habitat of the global population 
of dusky sharks, the WEG petition cites a general statement about the 
rate of development in the United States and abroad, and the resultant 
destructive impact on coastal habitat (Camhi et al., 1998), but does 
not provide any details on how this development is destroying specific 
dusky shark habitat or contributing to its extinction risk. Broad 
statements about generalized threats to the species do not constitute 
substantial information indicating that listing under the ESA may be 
warranted.
Factor A Conclusion
    We conclude that the information presented in the WEG petition on 
threats from the modification of habitat does not provide substantial 
information indicating that listing is warranted for the global 
population or NW Atlantic population. However, we acknowledge that 
although there is no specific information at this time on the effects 
of the oil spill on the NW Atlantic population, the petition did 
reference a study (Hueter and Gelsleichter, 2010) that is currently 
looking at the sub-lethal impacts of oil exposure, with dusky sharks 
listed as a target species. We may re-examine this factor as new 
information becomes available. The NRDC petition did not identify 
habitat modification or destruction as a threat to the NW Atlantic 
population.

Factor B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

NW Atlantic Population Analysis
    The WEG petition presents information on threats from commercial 
and recreational overexploitation for the global population and the NW 
Atlantic population separately. However, in discussing the ``domestic'' 
commercial and recreational exploitation of the global population, the 
petition focuses entirely on information concerning the NW Atlantic 
population. In this section, the petition states ``The dusky shark is 
subject to overfishing domestically . . . throughout its range, 
including in the NWA/GOM [NW Atlantic] and Pacific'' and references the 
latest Southeast Data, Assessment, and Review (SEDAR) stock assessment 
report for the dusky shark (henceforth referred to as ``SEDAR 21'') 
(SEDAR, 2011). However, this statement is incorrect, as SEDAR 21 did 
not examine the status of the entire dusky shark population or the 
Pacific population of dusky sharks, only the Northwest Atlantic and 
Gulf of Mexico stock.
    Information from the petitions suggests that the primary threat to 
the

[[Page 29105]]

NW Atlantic population is from fishing pressure by commercial and 
recreational fisheries. Dusky sharks off the U.S. East Coast have been 
a prohibited species in U.S. Atlantic Highly Migratory Species (HMS) 
fisheries since 2000 (NMFS, 1999), meaning that neither U.S. commercial 
nor recreational fishers are allowed to legally land this species. 
However, according to the results from SEDAR 21, the stock is still 
overfished with overfishing occurring. This suggests that the species 
continues to be caught as bycatch in pelagic and bottom longline 
fisheries and/or is misidentified by recreational and commercial 
fishers and seafood dealers, with other sharks recorded as dusky shark 
in landings, log books and dealer reports (Cort[eacute]s et al., 2006; 
NMFS, 2012a). Historically, the fishing mortality of this population 
was estimated to be low from 1960 through the early 1980s, but was 
thought to have increased to unsustainably high levels in the 1990s, 
before declining following the prohibition of dusky landings in 2000 
(SEDAR, 2011). In the 2006 stock assessment for the Northwest Atlantic 
and Gulf of Mexico dusky shark population, it was estimated that the 
stock (in 2004) had suffered significant declines from its virgin 
population size (in 1960) (Cort[eacute]s et al., 2006). Three forms of 
Bayesian surplus production models predicted depletions of over 80 
percent, an age-structured production model estimated a decline of 62-
80 percent, and a catch-free age-structure production model estimated a 
decrease in the spawning stock biomass (SSB) of 92-93 percent 
(Cort[eacute]s et al., 2006; SEDAR, 2011). The stock assessment also 
found statistically significant decreasing trends in the average weight 
of the catch, suggesting that the majority of dusky sharks being caught 
were immature and that the stock was heavily exploited (Cort[eacute]s 
et al., 2006). Given the historically heavy fishing on this population, 
and its low productivity and hence high vulnerability to exploitation, 
the stock assessment projected that the Northwest Atlantic and Gulf of 
Mexico population required 100 to 400 years to rebuild (Cort[eacute]s 
et al., 2006; SEDAR, 2011). Based on these results, NMFS declared the 
dusky shark stock in the Northwest Atlantic and Gulf of Mexico to be 
overfished with overfishing occurring (71 FR 65087; November 7, 2006) 
and established a rebuilding plan in July 2008. In 2011, the status of 
the Northwest Atlantic and Gulf of Mexico stock was re-evaluated 
through the SEDAR process (76 FR 62331; October 7, 2011), with results 
that indicate this dusky shark population is still overfished and 
continues to experience overfishing, even though harvest of the species 
is prohibited (SEDAR, 2011).
    The NRDC petition contends that although SEDAR 21 determined that 
the stock is experiencing overfishing, the current fishing mortality 
(F) values calculated by SEDAR 21 are underestimations and therefore 
``the percent reduction needed to end overfishing (a 36 percent 
reduction) as well as rebuild the fishery (62 percent) are 
underestimated.'' SEDAR 21 selected a range of 44.2--65 percent as the 
discard mortality for dusky sharks caught by bottom longline (BLL) gear 
(SEDAR, 2011). The petition states that these estimates ``represent 
average values across age classes and are substantially lower than 
capture mortality rates of juvenile dusky sharks, a major source of 
bycatch'' and references Morgan and Burgess (2007) and Romine et al. 
(2009). These two papers present at-vessel mortality rates for 
different age groups of dusky sharks on BLL gear. Morgan and Burgess 
(2007) estimated an 87.7 percent mortality rate for young dusky sharks 
(0-100 cm fork length, FL) and an 82.4 percent mortality rate for 
juveniles (101-231 cm FL). Romine et al. (2009) estimated mortality 
rates that ranged between 69 and 79 percent for dusky sharks < 230 cm 
FL. These higher rates may suggest that juveniles are more susceptible 
to at-vessel mortality on BLL gear than previously assumed, with 
subsequent discards perhaps underestimated in SEDAR 21.
    Furthermore, the NRDC petition references the SEDAR 21 results that 
show additional declines (relative to the virgin (1960) population) in 
biomass and SSB between the 2006 and 2011 assessments (SEDAR, 2011). 
SEDAR 21 suggested that the declines in SSB can be attributed to 
decreasing numbers of older, heavier, sharks, but is partially 
compensated for by increases in pup survival (i.e., density dependent 
recruitment) as the abundance of dusky sharks (in numbers) has 
increased from 2004 to 2009 (SEDAR, 2011). However, the petition 
contends that the ``significant impacts of continuing fishing 
pressures--and fishing-related mortality--on juvenile dusky sharks'' 
and their late age at sexual maturity (hence, the long time needed to 
survive before reproducing) makes this scenario unlikely unless current 
fishing mortality is reduced.
    The NRDC petition also provides information on bycatch of NW 
Atlantic dusky sharks in U.S. commercial fisheries, and references NMFS 
U.S. National Bycatch Report for data in 2005 and 2006 (NMFS, 2011). 
The report estimates that 2,739 sharks were caught as bycatch on reef 
fish handline and BLL gear, and 570,896 live pounds (lbs) (258,954 kg) 
in the shark BLL fishery, but notes that the shark BLL estimates are 
currently being reviewed. In addition, the petition states that the 
recreational fishery has accounted for around 47 percent of the total 
catch of dusky sharks (from 2001-2009) even though harvest of this 
species has been prohibited since 2001. Although total catch has 
decreased substantially since before the ban (by around 85 percent), 
dusky sharks are still being caught in both the recreational and 
commercial fisheries, and under the current fishing mortality rate, the 
stock has only an 11 percent probability of recovery by 2480 (400 
years) (SEDAR, 2011; NMFS, 2012a).
    The fishery management terms ``overfishing'' and ``overfished,'' 
and targets such as ``rebuilding'' and ``recovery,'' are defined under 
the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and 
are based on different criteria than threatened or endangered statuses 
under the ESA. As such, they do not necessarily indicate that a species 
may warrant listing under the ESA because they do not necessarily have 
any relationship to a species' extinction risk. Overutilization under 
the ESA means that a species has been or is being harvested at levels 
that pose a risk of extinction. In other words, the species is being 
harvested faster than it can replace itself. Since 1960 (assumed pre-
fishing levels), the dusky shark biomass and SSB have declined by 
approximately 80 and 85 percent, respectively, and, as the petition 
notes, dusky sharks are inherently vulnerable to overexploitation due 
to their life history characteristics, with a ``very low natural 
intrinsic rate of population increase, one of the lowest intrinsic 
rebound potentials and lowest productivities of all sharks.'' Given 
this biological vulnerability (Cort[eacute]s et al., 2012), the 
significant population decline, and the fact that this population is 
still experiencing fishing pressure from both commercial and 
recreational fishers with no change in its status despite fishing 
prohibitions, overutilization by commercial and/or recreational 
fisheries may present a threat that warrants further exploration to see 
if it is contributing to the Northwest Atlantic population's risk of 
extinction that is cause for concern.

[[Page 29106]]

Factor B Conclusion for NW Atlantic Population
    We conclude that the information presented in the petitions and 
information from our files indicates that the petitioned action to list 
the NW Atlantic population may be warranted due to threats from 
overutilization by commercial and/or recreational fisheries.
Global Population Analysis
    In terms of threats of overexploitation on the global population, 
the petitions reference the international shark fin trade as 
contributing to the decline of the dusky shark. The WEG petition cites 
Musick et al. (2007) when it states that the dusky shark represents at 
least 1.2--1.7 percent of the fins auctioned in Hong Kong, the world's 
largest fin trading center. However, in the original study that 
produced those estimates (Clarke et al., 2006a), the authors noted that 
the dusky shark had the ``least reliable results'' (referring to the 
above percentage proportions in the Hong Kong fin market) because the 
genetic primer used to identify shark fin species did not differentiate 
between dusky and Galapagos sharks (Clarke et al., 2006a). Thus, the 
authors caution that the percentage estimates of 1.2 to 1.7 ``most 
likely overestimates this species' proportion in the trade'' (Clarke et 
al., 2006a). In addition, the WEG petition incorrectly cites Musick et 
al. (2007) claiming that ``between 144,000 and 767,000 dusky sharks are 
represented in the shark fin trade each year or, in biomass, 6,000 to 
30,000 million tons.'' The biomass numbers are in metric tons, not 
million tons (i.e., 6,000 mt to 30,000 mt) (Musick et al. 2007; Clarke 
et al., 2006b); however, the petitions do not provide substantial 
evidence to indicate how these numbers relate to the global population 
size or data to indicate that the global population is in decline.
    Because dusky sharks have large fins with high fin needle content 
(a gelatinous product used to make shark fin soup), they fetch a high 
commercial price in the Asian shark fin trade (Clarke et al., 2006a) 
and thus are more likely to be kept when incidentally caught (Musick et 
al., 2007). Again, the petitions do not provide information on how the 
abundance and biomass of dusky sharks that are removed for the shark 
fin trade compare to global population numbers or biomass of dusky 
sharks, or how it subsequently translates to extinction risk. The WEG 
petition asserts that ``studies suggest the dusky shark globally 
suffered a 64 92 percent decline in virgin biomass by 2004'' but 
references SEDAR 21, which only calculated declines for the Northwest 
Atlantic and Gulf of Mexico population, not the global population 
(SEDAR, 2011). The petition provides no information regarding the 
notion that equivalent declines are found elsewhere throughout the 
dusky shark range.
    For information on dusky shark abundance elsewhere in the world 
(i.e., not the NW Atlantic population), the WEG petition acknowledges 
that there are little available data. It provides information on 
fisheries that may land dusky sharks and the types of fishing gear 
used, but does not provide information on the status of these 
populations or any past or present numbers of the species in these 
areas. The WEG petition notes that in the Southwest Atlantic there are 
``little population data'' but that the shark is taken both directly 
and indirectly by pelagic longline (PLL) and artisanal fisheries 
operating in these waters. However, the petition does not provide any 
data, such as catch or landings data, to show how these fisheries are 
threats to the dusky shark global population or how they contribute to 
its extinction risk, nor do we have that information in our files. The 
WEG petition states that in the Mediterranean, again, that there are 
``little data available on population trends'' with the IUCN deeming 
the population ``data deficient.'' Although the petition states that 
``Nevertheless, there are numerous accounts of dusky sharks taken as 
both target and bycatch along the North African and Sicilian coasts . . 
. unsustainably,'' the reference the WEG uses to support this statement 
actually states that the species is not frequently caught in this area 
(``caught sporadically in . . . fisheries, principally off North Africa 
and rather less frequently by [other fisheries] in the Sicilian Channel 
. . . and rarely observed on fishmarkets in the Mediterranean'') 
(Musick et al., 2007). Neither the petition, nor its reference, 
provides any information on catch numbers or evidence that take of 
dusky sharks is unsustainable or cause for concern.
    For the population found off the Australian coast, the WEG petition 
states that ``Fisheries in Australian . . . waters have historically 
exploited dusky shark recreationally and continue to do so'' and 
mentions the use of demersal gillnets to target neonates and dusky 
sharks less than 3 years of age, capturing ``18-28 percent of the 
population in its first year.'' The reference for these statements is 
Musick et al. (2007) which provides information from a stock assessment 
(Simpfendorfer, 1999) and also cites McAuley et al. (2005) as a second 
assessment of the dusky shark population found off southwestern 
Australia. We could not verify the publication title of the McAuley et 
al. (2005) citation because the bibliography for the Musick et al. 
(2007) publication was not included by the petitioner, nor is this full 
reference included in the bibliography for the Musick et al. (2009) 
publication (which appears to be an updated version of the Musick et 
al. (2007) publication). We consider the second assessment for the 
dusky shark population found off southwestern Australia to be the 
McAuley et al. (2007) publication, which was also cited by the 
petitioner. It should also be noted that the fishery described by 
Musick et al. (2007) as using demersal gillnets is a commercial 
fishery, not a recreational fishery.
    According to the stock assessments, neonate and juvenile C. 
obscurus have been the primary targets of the demersal gillnet fishery 
operating off southwestern Australia since the 1970s (Simpfendorfer, 
1999; McAuley et al., 2007). Due to the selectivity of the gillnet mesh 
sizes used in the fishery, very few dusky sharks older than 4 years are 
caught (Simpfendorfer, 1999), but these older individuals are also 
largely immune to exploitation because their distribution tends to be 
outside of the fishery's operational area (McAuley et al., 2007). 
Historically, catches of dusky sharks in this fishery grew from under 
100 mt per year in the late 1970s to just under 600 mt in 1998/1999 
before fishery management restrictions reduced and stabilized the catch 
at around 300 mt per year (McAuley et al., 2007).
    Both assessments used demographic models to estimate the impacts of 
fishing mortality on the shark stock, and specifically examined the 
1994 and 1995 cohorts. According to the Simpfendorfer (1999) 
assessment, the rates of fishing mortality experienced by the 1994 and 
1995 cohorts were sustainable. In fact, Simpfendorfer (1999) estimated 
that up to 4.3 percent of each class could be sustainably harvested 
each year, or, in presenting a scenario of unequal exploitation 
distribution, estimated that up to 64.6 percent of the youngest age-
class could be removed without decreasing the population, as long as no 
other age-class was harvested. McAuley et al. (2007) presented an 
update to this assessment using revised biological parameters and age-
specific rates of fishing mortality. Results from McAuley et al. (2007) 
confirm the sustainability of the rates of fishing mortality 
experienced by the 1994 and 1995 dusky shark cohorts, but suggest that 
the 4.3 percent exploitation may be overly optimistic for older dusky

[[Page 29107]]

sharks. Instead, the assessment found that exploitation above 1 percent 
per year on dusky sharks older than 10 years had a 55 percent 
probability of resulting in a decline in the stock (McAuley et al., 
2007). As such, the authors attribute the declining trend in catch 
rates in the target demersal gillnet fishery to the unquantified, yet 
probable, harvest of older sharks outside of the fishery, resulting in 
fewer breeders and thus fewer recruits to the population.
    However, in 2006, the Western Australian Government implemented a 
number of fishery management restrictions for its commercial fisheries, 
with the purpose of reducing mortality, particularly of dusky and 
sandbar sharks, and achieving dusky shark target biomass levels of 40 
percent of the virgin biomass by 2040 (Musick et al., 2007; Musick et 
al., 2009). One of these measures involved setting a maximum size limit 
for dusky sharks (Musick et al., 2007; Musick et al., 2009), thereby 
protecting the stock breeding biomass from being harvested by fisheries 
outside of the demersal gillnet fishery. According to the reference 
cited by the petitioner, ``These management measures should arrest 
further declines'' and encourages continued monitoring of the stock 
(Musick et al., 2007). Thus, given the results of the stock assessments 
that show sustainable fishing mortality on the heavily targeted dusky 
neonates, and current regulations that arrest the harvest of the more 
sensitive older shark population, we do not find evidence that suggests 
overutilization of the dusky shark population off western Australia is 
a threat to the existence of the global dusky shark population.
    In the Indian Ocean, the WEG petition states that the dusky shark 
is mainly taken as bycatch in PLL tuna fisheries gear, but also by 
small commercial fisheries and recreational long-line and gillnet 
fishing. It also states that beach meshing is used to catch juveniles 
and adolescents. It does not provide details on any past or present 
numbers in this region; however, it references a study by Dudley et al. 
(2005), which analyzed catch rate and size frequency of dusky sharks 
caught in protective beach nets off the coast of South Africa. The 
results from this study showed no significant linear trend in catch 
rate over the period of 1978 to 1999 (Dudley et al., 2005). The authors 
of the study also mentioned that group catches of dusky sharks usually 
coincided with the annual ``sardine run,'' with size and catch 
distribution influenced by the attempts to remove the nets before the 
influx of sardine shoals (Dudley et al., 2005; Musick et al., 2007). In 
a follow-up study that looked at more recent years of catch per unit 
effort (CPUE) information (extending the dataset from 1978 to 2003), 
the authors came to the same conclusion: the dusky shark did not show 
any indications of population decline, the CPUE trend was stable 
(Dudley and Simpfendorfer, 2006).
    In terms of other types of indirect catch of the global population 
of dusky sharks, the WEG petition makes generalized statements about 
sharks comprising a high percentage of non-target bycatch in commercial 
fisheries targeting swordfish and tuna in the Southwest Atlantic. 
However, the petition does not provide this percentage, nor does it or 
the reference used as support (Mandelman et al., 2008), provide 
information on how much of this bycatch in the Southwest Atlantic can 
be attributed to dusky sharks. In fact, the reference only examines 
historical catches of the Northwest Atlantic and Gulf of Mexico dusky 
shark population, excluding catch records from the Caribbean and areas 
farther south (Mandelman et al., 2008). The WEG petition then proceeds 
to list countries that operate PLL vessels in the South Atlantic and 
mentions different types of fisheries operating in the Mediterranean 
and Indian Ocean that may also catch dusky sharks as bycatch. However, 
it fails to provide any information on the actual catch numbers, catch 
or population trends, past or present numbers of dusky sharks in this 
region, or information on how these fisheries contribute to the 
extinction risk of the global population of dusky sharks. The WEG 
petition also provides a figure of the distribution of hooks deployed 
by all International Commission for the Conservation of Atlantic Tunas 
(ICCAT) parties from 2000-2006 but does not explain the relevance of 
the figure in relation to dusky shark catches or overutilization of the 
global dusky shark population.
    For recreational catch, the WEG petition follows the same pattern 
of describing the type of fishing gear used to catch dusky sharks. 
However, it fails to provide substantial information on numbers, 
population trends, or support for how recreational fisheries may be 
contributing to the extinction risk of the global dusky shark 
population.
Factor B Conclusion for Global Population
    Broad statements about generalized threats to the species, or 
identification of factors that could negatively impact a species, such 
as being a target of fisheries or caught on specific fishing gear, do 
not constitute substantial information indicating that listing may be 
warranted. With the exception of the NW Atlantic, the petitioners do 
not provide information on catch rates, landings, population trends, 
abundance numbers, or other information indicating that the global 
dusky shark may be responding in a negative fashion to fisheries or 
specific fishing gear. Because the petitioners have failed to provide 
substantial information that the NW Atlantic population constitutes a 
significant portion of the global population's range, we conclude that 
the information presented in the petitions on threats from 
overutilization does not provide substantial information indicating 
that listing may be warranted for the global population.

Factor D: Inadequacy of Existing Regulatory Mechanisms

NW Atlantic Population Analysis
    The petitions assert that the inadequacy of existing Federal, 
state, or international regulatory mechanisms require that the dusky 
shark be listed under the ESA. As noted above, the dusky sharks off the 
U.S East Coast were classified as a prohibited species in the 1999 NMFS 
Fishery Management Plan (FMP) for Atlantic Tunas, Swordfish and Sharks 
(NMFS, 1999). In 2003, Amendment 1 to this FMP established a Mid-
Atlantic shark closure in part to protect dusky sharks (NMFS, 2003). 
Beginning in January 2005, NMFS closed this Mid-Atlantic area to bottom 
longline fishing from January 1 through July 31 of every year, 
partially due to reports of high catches and mortality rates of dusky 
sharks on bottom longline gear in this area (NMFS, 2012a). After the 
2006 stock assessment found the Northwest Atlantic and Gulf of Mexico 
dusky shark population to be overfished with overfishing occurring 
(Cort[eacute]s et al., 2006), we established a rebuilding plan for this 
stock in July 2008, with Amendment 2 to the Consolidated Atlantic HMS 
FMP (NMFS, 2007). This amendment focused on minimizing the bycatch of 
dusky sharks by: reducing the overall retention limits of non-sandbar 
large coastal shark species, no longer allowing the species to be 
collected under display permits, and prohibiting similar-looking 
species from being retained by the recreational fishery. Although SEDAR 
21 still determined the dusky shark stock to be overfished and 
experiencing overfishing in 2011, it concluded that the prohibition on 
dusky shark catch in 2000 has been an effective management tool in 
decreasing fishing mortality rates (F). Specifically, SEDAR 21 
estimated that F has decreased by 11 percent from

[[Page 29108]]

2000 (F = 0.385) to 2009 (F = 0.056). However, even with this decrease 
in F, SEDAR 21 calculated that the stock has only an 11 percent 
probability of rebuilding by 2408 (400 years). This does not 
necessarily imply that the stock will go extinct. Dusky sharks do have 
inherently low population growth rates with no fishing pressure, and 
there is evidence that the species is still being caught by both 
commercial and recreational fisheries (NMFS, 2011b; NMFS, 2012a; NMFS 
2012b). Despite the fact that existing regulations have prohibited 
harvest of this species, these factors may be cause for concern in 
regard to its extinction risk.
    As required under the MSA, we must implement additional 
conservation and management measures to rebuild the overfished dusky 
shark stock, and, as such, have proposed management measures that are 
expected to have a 70 percent probability of rebuilding the stock by 
2099 (November 26, 2012; 77 FR 70552). The comment period for these 
proposed measures ended on February 12, 2013, and, after reviewing the 
comments, we announced that we would reconsider the proposed measures 
in a separate future action. We felt this was necessary to explore 
different approaches for ending overfishing and rebuilding dusky 
sharks, and fully consider and address public comments. Thus, because 
management measures are still in the process of being determined, we 
cannot comment on their likelihood of being effective in minimizing the 
species' extinction risk at this time.
Factor D Conclusion for NW Atlantic Population
    Therefore, we conclude that the petitions, and information from our 
files, indicate that the petitioned action may be warranted for the NW 
Atlantic population as current regulatory mechanisms may not be 
adequate to protect the NW Atlantic population from extinction risk.
Global Population Analysis
    For international regulations, the WEG petition mentions some of 
the international conservation agreements and plans to protect sharks, 
such as the Food and Agriculture Organization of the United Nations 
(FAO) International Plan of Action for the Conservation and Management 
of Sharks, but states that these measures are only voluntary. The 
petition presents no information regarding compliance with the 
voluntary measures or the impact of any non-compliance on the global 
dusky shark population. The WEG petition also mentions that 
``individual countries such as Australia have made minor adjustments to 
their dusky shark quotas in the wake of depletion, but there is no 
evidence that these management measures have staved off decline of 
individual populations'' and cites Musick et al. (2007) and NMFS's 2010 
Shark Finning Report to Congress (NMFS, 2010). As mentioned previously, 
Musick et al. (2007) references an assessment of the dusky shark 
population off southwestern Australia that found the stock was more 
susceptible to overfishing than previously thought; however, the 
authors also note that since 2006, the Western Australian Government 
has implemented additional management measures in all commercial 
fisheries, such as maximum size limits to protect older dusky sharks, 
which ``should arrest further declines'' of the dusky shark population 
(Musick et al., 2007). The NMFS 2010 Shark Finning Report to Congress 
concluded that ``great strides continue to be made in shark 
conservation, data gathering, management, research, and education on a 
national and global scale that will contribute to sustainable 
management of sharks'' (NMFS, 2010). Although perhaps more regulations 
are needed for the conservation of all shark species in general, the 
WEG petition does not provide substantial evidence to support the 
assertion that current regulatory mechanisms are insufficient to 
prevent the endangerment or extinction of the global dusky shark 
population.
    The WEG petition notes that finning regulations are ``generally 
inadequate'' for protecting the global dusky shark population because 
they may still be caught either directly or indirectly. It acknowledges 
that finning ``contributes to a very high mortality rate for this 
species'' and stresses that finning is ``now a major factor in the 
commercial exploitation of sharks worldwide,'' suggesting it is a 
threat to the global population of dusky sharks. Finning regulations 
are a common form of shark management regulation and have been adopted 
by far more countries and regional fishery management organizations 
than the petition lists (see HSI, 2012). In addition, a number of 
countries have also enacted complete shark fishing bans, with the 
Bahamas, Marshall Islands, Honduras, Sabah (Malaysia), and Tokelau (an 
island territory of New Zealand) adding to the list in 2011, and the 
Cook Islands in 2012. Shark sanctuaries can also be found in the 
Eastern Tropical Pacific Seascape (which encompasses around 2,000,000 
km\2\ and includes the Galapagos, Cocos, and Malpelo Islands), in 
waters off the Maldives, Mauritania, Palau, and French Polynesia. 
Countries that prohibit the sale or trade of shark fins or products 
include the Bahamas, CNMI, American Samoa, Cook Islands, Egypt, French 
Polynesia, Guam, Republic of Marshall Islands, and Sabah. Additionally, 
many cities in Canada also prohibit the sale or trade of shark fins/
products; thus, providing further international protection for the 
global dusky shark population. The WEG petition also mentions that lack 
of Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) protections (specifically an Appendix II 
listing) and international reporting requirements makes ESA-listing 
more urgent and ``exacerbates the paucity of international regulation 
of by-catch.'' Although a CITES Appendix II listing or international 
reporting requirements would provide better data on the global catch 
and trade of dusky sharks, the lack of listing or requirements would 
not suggest that current regulatory mechanisms are inadequate to 
protect the global dusky shark population from extinction.
Factor D Conclusion for Global Population
    Other than the information presented for the NW Atlantic 
population, neither the information in the petitions, nor information 
in our files, suggest that the global dusky shark population is at risk 
of extinction from the inadequacy of existing regulatory mechanisms. 
Because the petitions do not present substantial evidence that the NW 
Atlantic population constitutes a significant portion of the dusky 
shark's range, we conclude that the petitions do not present 
substantial information on threats from the inadequacy of existing 
regulatory mechanisms that would indicate that listing may be warranted 
for the global population.

Factor E: Other Natural or Manmade Factors

NW Atlantic Population Analysis
    The petitions contend that ``biological vulnerability'' in the form 
of slow growth rates, late maturity, and shorter reproductive cycles 
make the species particularly vulnerable to overfishing and slow to 
recover. In an ecological risk assessment, Cort[eacute]s et al. (2012) 
assessed 20 shark stocks caught in association with Atlantic PLL 
fisheries and estimated their productivity values and susceptibility to 
the fishery. The authors then considered those values to come up with 
an overall vulnerability ranking, which was defined as ``a measure of 
the extent to which the

[[Page 29109]]

impact of a fishery [Atlantic PLL] on a species will exceed its 
biological ability to renew itself'' (Cort[eacute]s et al., 2012). Out 
of the 20 assessed shark stocks, the Northwest Atlantic dusky shark 
population ranked 6th in lowest median productivity value (r = 0.043) 
but 17th in susceptibility to the Atlantic PLL fishery (indicating low 
susceptibility) (Cort[eacute]s et al., 2012). However, depending on the 
method used to calculate the vulnerability ranking, dusky sharks ranged 
from being at a low (17th) to high (6th) risk from Atlantic PLL 
fisheries (vulnerability rankings = 6th, 12th, and 17th) (Cort[eacute]s 
et al., 2012). On bottom longline fisheries, information in the 
petition and in our files shows that the species suffers high mortality 
from incidental capture (Morgan and Burgess, 2007; Romine et al. 2009).
Factor E Conclusion for NW Atlantic Population
    We conclude that the information in the petition and in our files 
suggests that biological vulnerability of the species may be a threat 
to the NW Atlantic population as this population is already severely 
depleted and still experiencing levels of fishing pressure that may be 
of concern. Thus, its high observed at-vessel fishing mortality and low 
productivity may hinder the success of ongoing and future recovery 
efforts.
Global Population Analysis
    In addition to biological vulnerability, the WEG petition asserts 
that natal homing, geographic preferences, and misidentification of 
fins makes the dusky shark particularly vulnerable to overfishing, and 
that pollution may lead to a population collapse, but does not provide 
specific or substantial information on the current or likely future 
effects of these factors on the extinction risk of the global dusky 
shark population.
Factor E Conclusion for Global Population
    Other than the information presented in the petition and in our 
files regarding Factor E with respect to the NW Atlantic population, 
the petition provides only broad general assertions regarding the 
impact of other natural or manmade factors to the global population. 
Because the information in the petitions in combination with the 
information in our files do not present substantial information 
indicating that the NW Atlantic population constitutes a significant 
portion of the species' range, we conclude that the information 
presented in the petitions and in our files is insufficient to indicate 
that there has been or may be any negative effect on the global dusky 
shark's ability to recover due to pollution impacts, misidentification 
rates, global warming, or other biological or ecological vulnerability 
factors.

Summary of Section 4(a)(1) Factors

    We conclude that the petitions do not present substantial 
scientific or commercial information indicating that any of the section 
(4)(a)(1) factors may be causing or contributing to an increased risk 
of extinction for the global population of dusky sharks. However, we 
also conclude that the petitions present substantial scientific or 
commercial information indicating that a combination of three of the 
section 4(a)(1) factors: overutilization for commercial, recreational, 
scientific, or educational purposes; inadequate existing regulatory 
mechanisms; and other natural or manmade factors may be causing or 
contributing to an increased risk of extinction for the NW Atlantic 
population of dusky sharks.

Petition Finding

Global Population

    After reviewing the information contained in the petition, as well 
as information readily available in our files, and based on the above 
analysis, we conclude that the petitions do not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted for the global population.

NW Atlantic Population

    We conclude that the petitions present substantial scientific 
information indicating the petitioned action of listing the NW Atlantic 
population of dusky sharks as threatened or endangered may be 
warranted. Therefore, in accordance with section 4(b)(3)(B) of the ESA 
and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we will 
commence a status review of the NW Atlantic population. During the 
status review, we will determine whether the population identified by 
the petitioners meets the DPS policy's criteria, and if so, whether the 
population is in danger of extinction (endangered) or likely to become 
so within the foreseeable future (threatened) throughout all or a 
significant portion of its range. We now initiate this review, and 
thus, the NW Atlantic dusky shark is considered to be a candidate 
species (69 FR 19975; April 15, 2004). Within 12 months of the receipt 
of the petition (November 14, 2012), we will make a finding as to 
whether listing the species as endangered or threatened is warranted as 
required by section 4(b)(3)(B) of the ESA. If listing the species is 
found to be warranted, we will publish a proposed rule and solicit 
public comments before developing and publishing a final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information relevant 
to whether the NW Atlantic population of dusky sharks is a DPS and 
whether it is threatened or endangered. Specifically, we are soliciting 
information, including unpublished information, in the following areas: 
(1) The discreteness, as defined in the DPS Policy, of the NW Atlantic 
population; (2) the significance, as defined in the DPS Policy, of the 
NW Atlantic population; (3) historical and current distribution and 
abundance of this population throughout its range; (4) historical and 
current population trends; (5) life history in NW Atlantic and Gulf of 
Mexico waters; (6) at-vessel and post-release mortality rates of dusky 
sharks on different types of fishing gears; (7) historical and current 
data on dusky shark bycatch and retention in commercial and 
recreational fisheries in the NW Atlantic and Gulf of Mexico waters; 
(8) historical and current data on dusky shark discards in commercial 
and recreational fisheries in the NW Atlantic and Gulf of Mexico 
waters; (9) data on the trade of NW Atlantic dusky shark products, 
including fins, jaws, and teeth; (10) any current or planned activities 
that may adversely impact the species; (11) ongoing or planned efforts 
to protect and restore the population and its habitat; (12) population 
structure information, such as genetics data; and (13) management, 
regulatory, and enforcement information. We request that all 
information be accompanied by: (1) Supporting documentation such as 
maps, bibliographic references, or reprints of pertinent publications; 
and (2) the submitter's name, address, and any association, 
institution, or business that the person represents.

References Cited

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

Authority

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


[[Page 29110]]


    Dated: May 13, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-11862 Filed 5-16-13; 8:45 am]
BILLING CODE 3510-22-P