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]
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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.
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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
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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
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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
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:
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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:
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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
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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
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or range; (2) overutilization for
commercial, recreational, scientific, or
educational purposes; (3) disease or
predation; (4) inadequacy of existing
regulatory mechanisms; and (5) any
other natural or manmade factors
affecting the species’ existence (16
U.S.C. 1533(a)(1), 50 CFR 424.11(c)). In
evaluating whether a population
constitutes a significant portion of the
species’ range, we consider the portion
of the range to be significant if its
contribution to the overall viability of
the species is so important that, without
it, the species may be in danger of
extinction. These considerations are
consistent with interpretations and
principles in the NMFS and USFWS
Draft Policy on Interpretation of the
Phrase ‘‘Significant Portion of Its
Range’’ in the Endangered Species Act’s
Definitions of ‘‘Endangered Species’’
and ‘‘Threatened Species,’’ which we
consider as nonbinding guidance in
making listing determinations until a
final policy is published. In the draft
policy, the Services explain that this
definition of ‘‘significant’’ for the
purpose of analyzing whether a
population constitutes a significant
portion of a species range differs from
the definition of ‘‘significant’’ defined in
the Services’ DPS Policy and used for
DPS analysis (76 FR 76987; December 9,
2011).
ESA-implementing regulations issued
jointly by NMFS and USFWS (50 CFR
424.14(b)) define ‘‘substantial
information’’ in the context of reviewing
a petition to list, delist, or reclassify a
species as the amount of information
that would lead a reasonable person to
believe that the measure proposed in the
petition may be warranted. In evaluating
whether substantial information is
contained in a petition, the Secretary
must consider whether the petition: (1)
Clearly indicates the administrative
measure recommended and gives the
scientific and any common name of the
species involved; (2) contains detailed
narrative justification for the
recommended measure, describing,
based on available information, past and
present numbers and distribution of the
species involved and any threats faced
by the species; (3) provides information
regarding the status of the species over
all or a significant portion of its range;
and (4) is accompanied by the
appropriate supporting documentation
in the form of bibliographic references,
reprints of pertinent publications,
copies of reports or letters from
authorities, and maps (50 CFR
424.14(b)(2)).
Judicial decisions have clarified the
appropriate scope and limitations of the
Services’ review of petitions at the 90-
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day finding stage, in making a
determination that a petitioned action
‘‘may be’’ warranted. As a general
matter, these decisions hold that a
petition need not establish a ‘‘strong
likelihood’’ or a ‘‘high probability’’ that
a species is either threatened or
endangered to support a positive 90-day
finding.
We evaluate the petitioners’ request
based upon the information in the
petition including its references and the
information readily available in our
files. We do not conduct additional
research, and we do not solicit
information from parties outside the
agency to help us in evaluating the
petition. We will accept the petitioners’
sources and characterizations of the
information presented if they appear to
be based on accepted scientific
principles, unless we have specific
information that indicates that the
petition’s information is incorrect,
unreliable, obsolete, or otherwise
irrelevant to the requested action.
Information that is susceptible to more
than one interpretation or that is
contradicted by other available
information will not be dismissed at the
90-day finding stage, so long as it is
reliable and a reasonable person would
conclude that it supports the
petitioners’ assertions. In other words,
conclusive information indicating that
the species may meet the ESA’s
requirements for listing is not required
to make a positive 90-day finding. We
will not conclude that a lack of specific
information alone negates a positive 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
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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-
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pelagic species that inhabits warm
temperate and tropical waters (FAO,
2012). It has a global but patchy
distribution, with its range-wide
occurrence poorly known. In the
Northwest Atlantic, dusky sharks can be
found from southern Massachusetts and
Georges Bank to Florida, the Bahamas,
Cuba, and the northern Gulf of Mexico
(NMFS, 2011a). Dusky shark
distribution off Central America is not
well known (NMFS, 2011a). In the
Eastern Pacific, the species is thought to
occur off the coast of southern
California to the Gulf of California,
Revillagigedo Islands, and possibly
Chile (NOAA, 1998; Musick et al.,
2007). The species can also be found off
the coasts of Australia, Nicaragua, and
southern Brazil (NMFS, 2011a).
According to Dudley et al. (2005), the
shark’s distribution in the western
Indian Ocean extends from the Red Sea
to the southern tip of Africa and off the
coast of Madagascar. The species is also
thought to be found in the
Mediterranean Sea, and off the coasts
and continental shelves of Japan, China,
Vietnam, New Caledonia, and North
Africa, possibly around oceanic islands
off western Africa (Musick et al., 2007;
NMFS, 2011a).
The dusky shark is a highly migratory
species that occurs in both inshore (surf
zone) and offshore waters, from the
surface to depths as deep as 1,883 feet
(574 m) (NOAA, 1998; Hoffmayer et al.,
2010; NMFS, 2011a). The shark avoids
areas of lower salinity and is rarely
found in estuarine environments
(NOAA, 1998; SEDAR, 2011). Along the
U.S. coasts, the dusky shark undertakes
long temperature-related migrations,
moving north in the summer as waters
warm and retreating south in the fall as
water temperatures drop (NMFS,
2011a). Seasonal migrations have also
been documented off South Africa
(NOAA, 1998). In western Australia,
both adolescents and adults move
inshore during the summer and fall,
with neonates occupying separate
inshore areas (NOAA, 1998).
The general life history pattern of the
dusky shark is that of a long lived
(oldest known female shark aged at 39
years), slow growing, and late maturing
species (SEDAR, 2011). The dusky shark
is a large, fairly slender shark, with an
average total length (TL) of around 11.8
feet (360 cm) and weight of 400 pounds
(180 kg) (NMFS, 2011a). Northwest
Atlantic and Gulf of Mexico dusky
males attain sexual maturity at around
280 cm TL, or 19 years, and females
reach sexual maturity at 284 cm TL, or
21 years (NOAA, 1998; NMFS, 2011a).
Similar maturity sizes have been
observed for dusky sharks from South
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Africa and Australia (NOAA, 1998). The
dusky shark is viviparous (i.e., gives
birth to live young), with a gestation
period of around 18 months and a
triennial reproductive cycle (SEDAR,
2011). Litter sizes range between 3 and
14 pups (NMFS, 2011a; SEDAR, 2011)
with the pupping months for the
Northwest Atlantic and Gulf of Mexico
dusky population occurring from May to
June. Young are born at sizes of 33 to
39 inches (85—100 cm) (NMFS, 2011a).
The shark has a rounded snout that is
shorter than or equal to the width of its
mouth and a low ridge along its back
between its dorsal fins (NMFS, 2011a).
The dorsal fin originates over or near
the free rear tips of moderately large
pectoral fins, and the second dorsal fin
has a free tip length that is usually not
more than twice its fin height (NMFS,
2011a; FLMNH, undated). The dusky
shark is colored bronzy gray to blue gray
above and white ventrally, and is also
known as the bronze whaler or black
whaler (NMFS, 2011a). It is a high
´
trophic level predator (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
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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
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these two basins (SEDAR, 2011).
Furthermore, Benavides et al. (2011)
provides preliminary evidence of
population structure between the NW
Atlantic population and the dusky
sharks in the Southwest Atlantic (off
Brazil), suggesting that the NW Atlantic
population, if it were depleted, would
not likely be replenished by immigrant
females from the Southwest Atlantic
population.
In addition to genetic separation, the
NRDC contends that the NW Atlantic
population is geographically separated
from other populations. NRDC indicates
that the NW Atlantic population
primarily inhabits U.S. waters, and as
such is delimited by international
governmental boundaries within which
differences in control of exploitation,
management of habitat, conservation
status, or regulatory mechanisms exist
that are significant in light of section
4(a)(1)(D) of the ESA.
Both petitions make the case that the
NW Atlantic population is significant to
the taxon. As described above, the NW
Atlantic population appears to be
genetically distinct and geographically
separate from other dusky shark
populations, with evidence of little
mixing between neighboring
populations (Benavides et al., 2011;
Gray et al., 2012). Thus, the petitions
reason that loss of this population
would result in a significant gap in the
range of the species because it is
unlikely to be repopulated by sharks
from other populations.
Overall, based on the above analysis,
we conclude that the information in the
two petitions and in our files suggests
that the NW Atlantic population of
dusky shark may qualify as a DPS under
the discreteness and significance criteria
of the DPS Policy. We will explore this
designation further and conduct a
formal DPS analysis during the status
review.
Qualification of the Northwest Atlantic
and Gulf of Mexico as a Significant
Portion of the Range (SPOIR)
The NRDC petition specifically
requests that we list the dusky shark as
threatened because the species is likely
to become endangered in a significant
portion of its range (specifically
throughout the habitat of the Northwest
Atlantic, including the Gulf of Mexico).
The WEG petition makes a similar
statement: ‘‘The Gulf of Mexico
comprises a significant portion of the
dusky shark’s range’’ and focuses part of
its threats analysis on this portion.
However, we conclude that neither
petition presented substantial
information, nor is there information in
our files, to indicate that the Northwest
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Atlantic and Gulf of Mexico is a
significant portion of the dusky shark’s
range. In making this assessment we
considered a portion of the range to be
significant if its contribution to the
overall viability of the dusky shark was
so important that, without it, the dusky
shark would be in danger of extinction.
These considerations are consistent
with interpretations and principles in
the NMFS and USFWS Draft Policy on
Interpretation of the Phrase ‘‘Significant
Portion of Its Range’’ in the Endangered
Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species,’’ which we consider as
nonbinding guidance in making listing
determinations until a final policy is
published (76 FR 76987; December 9,
2011).
As requested by the NRDC, we
considered whether the loss of the
northwest Atlantic portion would be
expected to increase the entire species’
vulnerability to extinction to the point
where the global population of dusky
sharks would be in danger of extinction.
However, neither petition provides
substantial evidence that the global
population may be at risk of extinction
from the loss of the Northwest Atlantic
portion, nor do we have information
that would support this in our files. The
WEG petition presents information on
threats to the global population,
whereas the NRDC petition does not;
however, neither petition presents
information about the dependence of
the global population on the Northwest
Atlantic portion for survival. Therefore,
we conclude that the petitions do not
provide substantial evidence that the
Northwest Atlantic may qualify as a
significant portion of the dusky shark’s
range or that listing of the global
population of shark may be warranted
because the population is threatened or
endangered in a significant portion of its
range.
Our analysis below considers the
application of the ESA section 4(a)(1)
factors to the Northwest Atlantic
population in determining whether the
WEG and NRDC petitions present
substantial information indicating that
listing the Northwest Atlantic
population may be warranted. In
addition, we consider the application of
the ESA section 4(a)(1) factors to the
global population in determining
whether the WEG petition presents
substantial information indicating that
listing the global population may be
warranted.
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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;
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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
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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
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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.
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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
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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),
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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
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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.
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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
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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
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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.).
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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]
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Agencies
- DEPARTMENT OF COMMERCE
- National Ocean and Atmospheric Administration
[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]
-----------------------------------------------------------------------
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]
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