Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Smooth Hammerhead Shark as Threatened or Endangered Under the Endangered Species Act, 48053-48061 [2015-19550]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 154 (Tuesday, August 11, 2015)]
[Proposed Rules]
[Pages 48053-48061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19550]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 150506425-5425-01]
RIN 0648-XD941


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

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

ACTION: 90-day petition finding, request for information.

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

DATES: Information and comments on the subject action must be received 
by October 13, 2015.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2015-0103, by either any of 
the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0103. Click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Maggie Miller, NMFS 
Office of Protected Resources (F/PR3), 1315 East West Highway, Silver 
Spring, MD 20910, USA.
    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).
    Copies of the petition and related materials are available on our 
Web site at https://www.fisheries.noaa.gov/pr/species/fish/smooth-hammerhead-shark.html.

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

SUPPLEMENTARY INFORMATION: 

Background

    On April 27, 2015, we received a petition from Defenders of 
Wildlife to list the smooth hammerhead shark (Sphyrna zygaena) as 
threatened or endangered under the ESA throughout its entire range, or, 
as an alternative, to list any identified DPSs as threatened or 
endangered. To this end, the petitioners identified five populations 
that they indicate qualify for protection as DPSs: Northeast Atlantic 
and Mediterranean Sea, Northwest Atlantic, Southwest Atlantic, Eastern 
Pacific, and Indo-West Pacific. The petition also requests that 
critical habitat be designated for the smooth hammerhead shark under 
the ESA. In the case that the species does not warrant listing under 
the ESA, the petition requests that the species be listed based on its 
similarity of appearance to the listed DPSs of the scalloped hammerhead 
shark (Sphyrna

[[Page 48054]]

lewini). Copies of the petition are available upon request (see 
ADDRESSES).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'') 
policy clarifies the agencies' interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered based on any one 
or a combination of the following five section 4(a)(1) factors: The 
present or threatened destruction, modification, or curtailment of 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and any other natural or manmade 
factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(b)) define ``substantial information'' in the context of 
reviewing 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)).
    At the 90-day finding stage, we evaluate the petitioners' request 
based upon the information in the petition including its references and 
the information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude it supports the petitioners' assertions. In other 
words, conclusive information indicating the species may meet the ESA's 
requirements for listing is not required to make a positive 90- day 
finding. We will not conclude that a lack of specific information alone 
negates a positive 90-day finding if a reasonable person would conclude 
that the unknown information itself suggests an extinction risk of 
concern for the species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk that is cause for concern; this may be 
indicated in information expressly discussing the species' status and 
trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by 
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 such classification alone may 
not provide the rationale for

[[Page 48055]]

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/pdf/NatureServeStatusAssessmentsListing-Dec%202008.pdf. Additionally, 
species classifications under IUCN and the ESA are not equivalent; data 
standards, criteria used to evaluate species, and treatment of 
uncertainty are also not necessarily the same. 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 Smooth Hammerhead Shark

    The smooth hammerhead shark is a circumglobal species found in 
temperate to warm waters (Compagno, 1984). It occurs close inshore and 
in shallow waters, over continental shelves, in estuaries and bays, and 
around coral reefs, but it has also been observed offshore at depths as 
great as 65-650 feet (20-200 meters (m)) deep (Compagno, 1984; Bester, 
n.d.). Smooth hammerheads are highly mobile and, within the Sphyrnidae 
family, are the most tolerant of temperate waters (Compagno, 1984). In 
the western Atlantic Ocean, the range of the smooth hammerhead shark 
extends from Nova Scotia to Florida and into the Caribbean Sea, and in 
the south from southern Brazil to southern Argentina (Compagno, 1984; 
Bester, n.d). In the eastern Atlantic Ocean, smooth hammerhead sharks 
can be found from the British Isles to Guinea and farther south through 
parts of equatorial West Africa. They are also found throughout the 
Mediterranean Sea (Compagno, 1984; Bester, n.d). In the Indian Ocean, 
the shark occurs from South Africa, along the southern coast of India 
and Sri Lanka, to the coasts of Australia. Distribution in the Pacific 
extends from Vietnam to Japan and includes Australia and New Zealand in 
the west, the Hawaiian Islands in the central Pacific, and extends from 
Northern California to the Nayarit state of Mexico, and from Panama to 
southern Chile in the eastern Pacific (Compagno, 1984; Bester, n.d).
    The smooth hammerhead shark gets its common name from its large, 
laterally expanded head that resembles a hammer (Bester, n.d.). The 
unique head shape allows for easy distinction of hammerheads of the 
Sphyrnidae family from other types of sharks. The smooth hammerhead is 
characterized by a ventrally located and strongly arched mouth with 
smooth or slightly serrated teeth (Compagno, 1984). The body of the 
shark is fusiform with a moderately hooked first dorsal fin and a lower 
second dorsal fin, and its color ranges from a dark olive to greyish-
brown that fades into a white underside (Bester, n.d.).
    The general life history characteristics of the smooth hammerhead 
shark are that of a long-lived, slow-growing, and late maturing species 
(Compagno, 1984; Casper et al., 2005). The smooth hammerhead can reach 
a maximum length of 16 feet (5 m) and a maximum weight of 880 pounds 
(400 kilograms (kg)) (Bester, n.d.). Females are considered sexually 
mature at the age of 9, which correlates to size at sexual maturity of 
8.7 feet (2.65 m) (Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES), 2013). Males are considered 
sexually mature slightly earlier in life than females, and at sizes 
from 8.2-8.7 feet (2.10-2.65 m.) (CITES, 2013). The smooth hammerhead 
shark is viviparous (i.e., give birth to live young), with a gestation 
period of 10-11 months, and likely breeds every other year (ICCAT, 
2012; Bester, n.d.). Litter sizes range from 20 to 40 live pups with a 
mean litter size of 33.5 pups. Average length at birth is estimated to 
be 50 cm (Bester, n.d.).
    The smooth hammerhead shark is a high trophic level predator 
(Cort[eacute]s, 1999) and opportunistic feeder that consumes a variety 
of teleosts, small sharks, skates and stingrays, crustaceans, and 
cephalopods (Compagno, 1984). The species has also been observed 
scavenging from nets and hooks.

Analysis of Petition and Information Readily Available in NMFS Files

    The petition contains information on the species, including the 
taxonomy, species description, geographic distribution, habitat, 
population status and trends, and factors contributing to the species' 
decline. According to the petition, all five causal factors in section 
4(a)(1) of the ESA are adversely affecting the continued existence of 
the smooth hammerhead shark: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence.
    In the following sections, we evaluate the information provided in 
the petition and readily available in our files to determine if the 
petition presents substantial scientific or commercial information 
indicating that an endangered or threatened listing may be warranted as 
a result of any of these ESA factors. Because we were requested to list 
a global population and, alternatively, DPSs, we will first determine 
if the petition presents substantial information that the petitioned 
action is warranted for the global population. If it does, then we will 
make a positive finding on the petition and conduct a review of the 
species range-wide. If after this review we find that the species does 
not warrant listing range-wide, then we will consider whether the 
populations requested by the petitioners qualify as DPSs and warrant 
listing. If the petition does not present substantial information that 
the global population may warrant listing, and it has requested that we 
list any populations of the species as threatened or endangered, then 
we will consider whether the petition provides substantial information 
that the requested population(s) may qualify as DPSs under the 
discreteness and significance criteria of our joint DPS Policy, and if 
listing any of those DPSs may be warranted. Below, we summarize the 
information presented in the petition and in our files on the status of 
the species and the ESA section 4(a)(1) factors that may be affecting 
the species' risk of global extinction and determine whether a 
reasonable person would conclude that an endangered or threatened 
listing may be warranted as a result of any of these factors.

Smooth Hammerhead Shark Status and Trends

    The petition does not provide an estimate of global population 
abundance or trends for the smooth hammerhead shark. The petition 
refers to the IUCN Redlist status assessment (Casper et al., 2005) and 
its classification of the smooth hammerhead as globally ``vulnerable.'' 
The IUCN assessment cites overutilization by global fisheries as the 
main threat to the species, with smooth hammerheads both targeted and 
caught as bycatch and kept for their fins.
    The petition provides evidence of population declines in a number 
of regions throughout the smooth

[[Page 48056]]

hammerhead's range that would indicate that smooth hammerhead sharks 
may be experiencing declines on a global scale. For example, a stock 
assessment of smooth hammerhead sharks in the Northwest Atlantic 
region, conducted by Hayes (2007), estimated a 91 percent decline of 
the population between 1981 and 2005. Similarly, another study (Myers 
et al., 2007) used standardized catch per unit effort (CPUE) data from 
shark-targeted, fishery-independent surveys off the east coast of the 
United States and found a 99 percent decline of smooth hammerhead 
sharks from 1972-2003. Myers et al. (2007) remarks that the trends in 
abundance may be indicative of coast-wide population declines because 
the survey was situated ``where it intercepts sharks on their seasonal 
migrations.'' In the southwest Atlantic, Brazilian commercial fisheries 
report an 80 percent decline in CPUE of the hammerhead complex 
(including smooth hammerhead sharks) from 2000 to 2008, suggesting a 
significant decline in abundance of hammerhead sharks from this area 
(FAO, 2010). The State of Rio Grande do Sul, Brazil, experienced a 65 
percent decrease in CPUE from 2000-2002, specifically of smooth 
hammerhead sharks (CITES, 2013). In the Mediterranean Sea, estimated 
declines of the Sphyrna complex (with S. zygaena comprising the main 
species) exceeded 99 percent over the last century, with hammerhead 
sharks considered to be functionally extinct in the region (Feretti et 
al., 2008). In the Indian Ocean, tagging surveys conducted off the 
eastern coast of South Africa over the course of 25 years suggest 
smooth hammerhead abundance has declined, after reaching a peak in 1987 
(n = 468, 34.9 percent of the total smooth hammerheads tagged over the 
course of the study; Diemer et al., 2007). However, catches of smooth 
hammerhead sharks in beach protective nets set off the KwaZulu-Natal 
beaches in South Africa were highly variable from 1978-2003, with no 
clear trend that could indicate the status of the population (Dudley 
and Simpfendorfer, 2006). In the Eastern Pacific, incidental catches of 
smooth hammerhead sharks by tuna purse-seine vessels have exhibited a 
declining trend, from a peak of 1,205 sharks caught in 2004 to 436 
individuals in 2011 (a decrease of around 64 percent) (CITES, 2013). 
Based on the available information from these regions, we find evidence 
suggesting that the population abundance of smooth hammerhead sharks 
has declined significantly and may still be in decline. While data are 
limited with respect to population size and trends, we find the 
information presented in the petition and readily available in our 
files to be substantial information on smooth hammerhead shark 
abundance, trends, and status.

Analysis of ESA Section 4(a)(1) Factors

The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    The petition contends that smooth hammerhead sharks are at risk of 
extinction throughout their range due to pollutants, especially those 
that are able to bioaccumulate and biomagnify to high concentrations at 
high trophic levels. Of particular concern to the petitioners are high 
mercury and polychlorinated biphenyl (PCB) concentrations in smooth 
hammerhead shark tissues. International agencies, such as the Food and 
Drug Administration and the World Health Organization, have set a 
recommended maximum of 1 [micro]g/g concentration of mercury in seafood 
tissues (Garc[iacute]a-Hern[aacute]ndez et al., 2007) for human 
consumption. Storelli et al. (2003) tested tissue samples from four 
smooth hammerhead sharks from the Mediterranean Sea and found that, on 
average, tissue samples from the liver and muscle had concentrations of 
mercury that greatly exceeded recommended limits (mean mercury 
concentration in muscle samples: 12.15  4.60 [micro]g/g, 
mean mercury concentration in liver samples: 35.89  3.58 
[micro]g/g). Additionally, these specimens showed high concentrations 
of more chlorinated (hexa- and hepta-chlorinated) PCBs. Similarly, 
Garc[iacute]a-Hern[aacute]ndez et al. (2007) found high concentrations 
of mercury in tissues of four smooth hammerhead sharks from the Gulf of 
California, Mexico (mean mercury concentration in muscle tissue: 8.25 
 9.05 [micro]g/g). Escobar-S[aacute]nchez (2010) also 
studied mercury concentrations in the muscle tissues of smooth 
hammerhead sharks from the Mexican Pacific, but out of 37 studied 
sharks, only one shark had a mercury concentration that exceeded the 
recommended limits. As stated previously, we look for information in 
the petition and in our files to indicate that not only is the 
particular species exposed to a factor, but that the species may be 
responding in a negative fashion. Despite providing evidence that 
smooth hammerhead sharks accumulate pollutants in their tissues, the 
petitioners fail to provide evidence that these concentrations of 
mercury and PCBs are causing detrimental physiological effects to the 
species or may be contributing significantly to population declines in 
smooth hammerhead sharks to the point where the species may be at risk 
of extinction. As such, we conclude that the information presented in 
the petition on threats to the habitat of the smooth hammerhead shark 
does not provide substantial information indicating that listing may be 
warranted for the species.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Information from the petition and in our files suggests that the 
primary threat to the smooth hammerhead shark is from overutilization 
by fisheries. Smooth hammerhead sharks are both targeted and taken as 
bycatch in many global fisheries. Smooth hammerhead sharks face fishing 
pressure from commercial, artisanal, and recreational fisheries that 
use a variety of gear types to harvest these sharks: Pelagic and bottom 
longlines, handlines, gillnets, purse seines, and pelagic and bottom 
trawls (Camhi et al., 2007). Smooth hammerhead sharks are mostly 
targeted for their large, high-quality fins for use in shark fin soup, 
which are then transported to Asian markets where they fetch a high 
market price ($88/kg in 2003) (Abercrombie et al., 2005). In the Hong 
Kong fin market, which is the largest fin market in the world, S. 
zygaena and S. lewini are mainly traded under a combined market 
category called Chun chi (Abercrombie et al., 2005; NMFS, 2014a). Based 
on data from 2000-2002, Chun chi is the second most traded category, 
comprising around 4-5 percent of the total fins traded in the Hong Kong 
market annually (Clarke et al., 2006; Camhi et al., 2007). This 
percentage of fins correlates to an estimated 1.3-2.7 million 
individuals of scalloped and smooth hammerhead sharks (equivalent to a 
biomass of 49,000-90,000 tons) traded in the Hong Kong market annually. 
Given their relatively high price and popularity in the Hong Kong 
market, there is concern that many smooth hammerhead sharks caught as 
incidental catch may be kept for the fin trade as opposed to released 
alive; however, as noted in the Great Hammerhead 12-month finding (79 
FR 33509; June 11, 2014), there has also been a recent global push to 
decrease the demand of shark fins, especially for shark fin soup.
    In the northwestern Atlantic, smooth hammerhead sharks are mainly 
caught as bycatch in the U.S. commercial longline and net fisheries and 
by U.S. recreational fishermen using rod and reel, albeit rarely (NMFS, 
2014b). This

[[Page 48057]]

is likely a reflection of the low abundance of the species. Between 
1981 and 2005, Hayes (2007) estimated that the Northwest Atlantic 
population of smooth hammerhead shark suffered a 91 percent decline in 
size. As of 2005, the population was estimated to be at 19-24 percent 
of the biomass that would produce maximum sustainable yield (MSY), as 
defined by the Magnuson-Stevens Fishery Conservation and Management 
Act, and that the population was being fished at 150 percent of fishing 
mortality associated with MSY. Under 2005 catch levels, Hayes (2007) 
estimated that there was a 64 percent likelihood of smooth hammerhead 
shark recovery within 30 years. It is important to note that the term 
``recovery'' as used by Hayes (2007) is defined under the Magnuson-
Stevens Fishery Conservation and Management Act and is based on 
different criteria than threatened or endangered statuses under the 
ESA. As such, it does not necessarily indicate that a species may 
warrant listing under the ESA because it does 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, not just at levels over MSY. However, we 
agree that the significant decline estimated for the population 
combined with the species' biological susceptibility to current 
fisheries and high at-vessel mortality rates (see Other natural or 
manmade factors affecting its continued existence section) may be of 
concern as it relates to the extinction risk of the species. In 
addition, we note that, as pointed out in the NMFS Great Hammerhead 
Shark Status Review (Miller et al., 2014), Hayes (2007) (cited as Hayes 
2008 in the status review) identified many uncertainties in the data 
and catch estimates from his stock assessment model that may have 
affected population decline estimates and should be taken into 
consideration. We will evaluate these uncertainties and the adequacy of 
existing regulatory measures in preventing further declines in the 
species during the status review phase.
    In the southwestern Atlantic, industrial landings of the hammerhead 
complex (mainly S. lewini and S. zygaena) off the coast of Santa 
Catarina, Brazil increased from 6.7 tons in 1989 to a peak of 570 tons 
in 1994, due to fast development of industrial net fishing during this 
time (CITES, 2013). However, catches of hammerheads from the industrial 
net fishery fell to 44 tons in 2008, despite continued fishing effort. 
Industrial deep fishing with bottom gillnets off the coast of Brazil is 
a threat to recruiting coastal hammerheads, especially during their 
mating and birthing seasons (CITES, 2013). Data from a bottom gillnet 
fishery targeting hammerheads off the coast of Brazil noted an 80 
percent decline in CPUE of the hammerhead complex from 2000-2008 (FAO, 
2010). The targeted hammerhead fishery was abandoned after 2008 when 
the species became too rare to make the fishery economically viable. In 
the Rio Grande do Sul State of Brazil, a 65 percent decrease in CPUE of 
smooth hammerhead sharks from the industrial fisheries was noted from 
2000-2002, decreasing from 0.37 tons per trip to 0.13 tons per trip 
(CITES, 2013). The various fishing operations in this region 
concentrate effort in areas where all life stages of hammerhead sharks 
occur. For example, the artisanal net and industrial trawl fishing 
within inshore areas and on the continental shelf place neonates and 
juveniles at risk of fishery-related mortality, and the industrial 
gillnet and longline fisheries operating on the outer continental shelf 
and adjacent ocean waters place adults at risk (CITES, 2013). With this 
heavy fishing effort affecting all life stages, there may be observed 
declines in the population.
    In the Mediterranean Sea, it is thought that smooth hammerheads may 
have been fished to functional extinction (Feretti et al., 2008). In 
the early 20th century, coastal fisheries would target large sharks and 
also land them as incidental bycatch in gill nets, fish traps, and tuna 
traps (Feretti et al., 2008). Feretti et al. (2008) hypothesized that 
certain species, including S. zygaena, found refuge in offshore pelagic 
waters from this intense coastal fishing. However, with the expansion 
of the tuna and swordfish longline and drift net fisheries into pelagic 
waters in the 1970s, these offshore areas no longer served as 
protection from fisheries, and sharks again became regular bycatch. 
Consequently, the hammerhead shark abundance in the Mediterranean Sea 
(primarily S. zygaena) is estimated to have declined by more than 99 
percent over the past 107 years, with hammerheads considered to be 
functionally extinct in the region. Recently, Sperone et al. (2012) 
provided evidence of the contemporary occurrence of the smooth 
hammerhead shark in Mediterranean waters, recording seven individuals 
from 2000-2009 near the Calabria region of Italy. Additionally, the 
aforementioned toxicology study, Storelli et al. (2003), used four 
smooth hammerhead sharks that were caught as bycatch from the swordfish 
fishery in the Mediterranean in July of 2001. These two studies suggest 
that numbers of smooth hammerhead shark in the Mediterranean region may 
be slowly recovering (Sperone et al., 2012), although further study is 
needed.
    In the waters off of northwestern Africa, hammerhead sharks are 
retained primarily as bycatch from the industrial fisheries and catch 
from the artisanal fisheries operating within this region. 
Historically, Spanish swordfish gillnet and longline fisheries and 
European industrial trawl fisheries caught significant amounts of 
hammerheads (Buencuerpo et al., 1998; Zeeberg et al., 2006). For 
example, from 1991-1992 a total of 675 hammerheads (the authors refer 
to them as scalloped hammerheads but give the scientific name of S. 
zygaena) were landed as incidental catch in the Spanish swordfish 
fishery, with juveniles comprising the majority of the catch (94 
percent of males and 96 percent of females) (Buencuerpo et al., 1998). 
In a study of European trawl fisheries off the coast of Mauritania, 42 
percent of the megafauna bycatch (the largest category) were hammerhead 
sharks and 75 percent of the hammerhead sharks were juveniles (Zeeberg 
et al., 2006). The study estimated that over 1,000 hammerheads are 
removed annually, a number considered to be unsustainable for the 
region. Additionally, according to a review of shark fishing in the Sub 
Regional Fisheries Commission member countries (Cape-Verde, Gambia, 
Guinea, Guinea-Bissau, Mauritania, Senegal, and Sierra Leone), Diop and 
Dossa (2011) state that shark fishing is an important component of the 
artisanal fishery. Before 1989, artisanal catch of sharks was less than 
4,000 mt. However, from 1990 to 2005, shark catch increased 
dramatically from 5,000 mt to over 26,000 mt, as did the level of 
fishing effort (Diop and Dossa, 2011). However, from 2005 to 2008, 
shark landings dropped by more than 50 percent, to 12,000 mt (Diop and 
Dossa, 2011). As noted in the Scalloped Hammerhead Final Listing Rule 
(79 FR 38213; July 3, 2014), regulations in Europe appear to be moving 
towards the sustainable use and conservation of shark species; however, 
there is still concern regarding the level of exploitation of 
hammerhead sharks off the west coast of Africa, and the threat warrants 
further exploration.
    In the eastern Pacific Ocean, smooth hammerhead sharks are both 
targeted and taken as bycatch in industrial and artisanal fisheries 
(Casper et al., 2005). In Mexico, sharks, in general, are an important 
component of the artisanal

[[Page 48058]]

fishery (INP, 2006). They are targeted for both their fins, which are 
harvested by fishermen for export, and for their shark meat, which is 
becoming increasingly important for domestic consumption. In the Gulf 
of Tehuantepec, smooth hammerhead sharks are the seventh most important 
shark species (out of 21 identified species) caught in the artisanal 
fishery (INP, 2006). In a survey of the targeted artisanal elasmobranch 
fishery off the coast of Sinaloa, Mexico, smooth hammerhead sharks 
accounted for 6.4 percent (n = 70) of total landings in the more active 
winter season and 3 percent (n = 120) of the total surveyed catch from 
1998-1999 (Bizzarro et al., 2009). Of concern is the fact that all 
individuals landed during this survey were juveniles. Similarly, a 
1995-1996 survey of the artisanal fishery off the Tres Marinas Islands 
of Mexico demonstrated that smooth hammerhead sharks constituted 35 
percent (n = 700) of the total catch, and only 20 percent of the 
females and 1 percent of the males were considered mature 
(P[eacute]rez-Jim[eacute]nez et al., 2005). Given the species' low 
productivity, slow growth rate, and late maturity, this targeted 
removal of recruits from the population may cause or continue to cause 
declines in the abundance of the species to the point where it may be 
contributing to the species' risk of extinction and is cause for 
concern that warrants further review.
    Smooth hammerhead sharks are also taken as bycatch by the tuna 
purse-seine fisheries operating in the Inter-American Tropical Tuna 
Commission convention area of the Eastern Pacific region. Based on data 
from observers, smooth hammerhead sharks constituted around 1.7 percent 
of the total bycatch from the tuna purse-seine fleet from 2000-2001. 
Since the mid-1980s, the tuna purse-seine fishery in the Pacific has 
been rapidly expanding (Williams and Terawasi, 2011), and despite the 
increase in fishery effort (or perhaps a consequence of this increased 
fishing pressure), incidental catch of smooth hammerhead sharks has 
seen a decline, from a peak of 1,205 individuals in 2004 to 436 
individuals in 2011 (CITES, 2013).
    In the west-coast based U.S. fisheries, hammerheads are primarily 
caught as bycatch, and, based on observer data, appear to be relatively 
rare in the fisheries catch. For example, in the California/Oregon 
drift gillnet fishery, which targets swordfish and common thresher 
shark and operates off the U.S. Pacific coast, observers recorded only 
70 bycaught smooth hammerheads and 2 unidentified hammerheads in 8,698 
sets conducted over the past 25 years (from 1990-2015; WCR, 2015).
    Throughout the majority of the Indian Ocean and western Pacific, 
fisheries data in the petition and available in our files are lacking, 
but shark finning and illegal, unregulated and unreported (IUU) fishing 
were identified by the petitioners as threats contributing to the 
overutilization of the species in these areas. The smooth hammerhead 
shark is caught in both artisanal and commercial fisheries as directed 
catch and retained incidental bycatch (Casper et al., 2005). Pelagic 
fisheries from industrialized countries have been active in the region 
for over 50 years (Casper et al., 2005). A recent review of fisheries 
in the Indian Ocean reports that sharks in the area are fully or over-
exploited (de Young, 2006), but due to the high levels of IUU fishing 
and lack of species-specific catch reporting, it is difficult to 
determine the rate of exploitation of smooth hammerhead sharks. In 
Western Australia, smooth hammerhead sharks are retained as bycatch in 
the demersal gillnet fishery, but it appears that the fishing pressure 
is too low to have impacted populations in this region (Casper et al., 
2005). Smooth hammerheads are relatively common around New Zealand's 
North Island, where they are frequently caught as bycatch in commercial 
gillnets and trawls; however, these individuals are often discarded 
dead (Casper et al., 2005).
    In the central Pacific, smooth hammerhead sharks are bycaught in 
the Hawaii-based fisheries, but comprise a very small proportion of the 
bycatch. In fact, from 1995-2006, only 49 smooth hammerhead sharks and 
38 unidentified hammerhead sharks were bycaught in the Hawaiian 
longline fishery, amounting to less than 0.1 percent of all bycaught 
shark species in the fishery for that time period (Walsh et al., 2009). 
According to the U.S. National Bycatch Report (NMFS, 2011; NMFS, 2013), 
the Hawaii-based deep-set pelagic longline fishery (which targets 
swordfish) bycaught 3,173.91 pounds (1440 kg) of smooth hammerhead in 
2010, an increase of around 29 percent from the amount reported in 2005 
(2,453.74 pounds (1,113 kg)). However, for the Hawaii based shallow-set 
pelagic longline fishery (which also targets swordfish), there were no 
reports of bycaught smooth hammerhead sharks in 2010, whereas in 2005, 
930.35 pounds (422 kg) of smooth hammerheads were recorded as bycatch. 
Additionally, in 2011, an estimated 12 smooth hammerhead sharks (based 
on extrapolated observer data) were taken in the American Samoa 
longline fishery (PIFSC, unpublished data). Further review is necessary 
to determine if this level of fishery-related mortality is a threat to 
the smooth hammerhead shark.
    Given the evidence of historical exploitation of the species and 
subsequent population declines, and the fact that fishing pressure from 
industrial and artisanal fisheries may still be high based on available 
fisheries data and the high value and contribution of smooth hammerhead 
fins to the international fin trade, we conclude that the information 
in the petition and in our files suggest that global fisheries are 
impacting smooth hammerhead shark populations to a degree that raises 
concern that the species may be at risk of extinction.

Disease or Predation

    The petition asserts that high concentrations of arsenic in smooth 
hammerhead shark tissues should be considered a significant threat to 
smooth hammerhead shark populations as it is a possible carcinogenic. 
The petition refers to Storelli et al. (2003), which found that smooth 
hammerhead sharks (n = 4) had a mean arsenic concentration in muscle 
samples of 18.00  8.57 [micro]g/g and a mean arsenic 
concentration in liver samples of 44.22  2.22 [micro]g/g. 
The study cites that sharks rarely have arsenic concentrations that 
exceed 10 [micro]g/g, and so the arsenic levels in the sharks tissues 
should be considered ``notably elevated'' (Storelli et al., 2003). The 
petitioners contend that the smooth hammerhead sharks are at a higher 
risk for developing cancer due to these high levels of arsenic. 
However, as already stated, we look for information in the petition and 
in our files to indicate that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion. Despite providing evidence that some smooth 
hammerhead sharks have elevated levels of arsenic in their tissues, the 
petitioners fail to show that those specific levels are causing 
detrimental physiological effects or may be contributing significantly 
to population declines in smooth hammerhead sharks to the point where 
the species may be at risk of extinction. Additionally, neither the 
petitioners nor the information in our files indicate that predation is 
a significant threat to this apex species. As such, we conclude that 
the information presented in the petition on the threats of disease or 
predation to the smooth hammerhead shark does not provide substantial 
information indicating that listing may be warranted for the species.

[[Page 48059]]

Inadequacy of Existing Regulatory Mechanisms

    The petition asserts that the existing international, regional, and 
national regulations do not adequately protect the smooth hammerhead 
shark and have been insufficient in preventing population declines. 
Additionally, the petition asserts that most existing regulations are 
inadequate because they limit retention of the smooth hammerhead shark 
and argues that the focus should be on limiting the catch of smooth 
hammerhead sharks in order to decrease fishery-related mortality, 
particularly given the species' high post-catch mortality rates. Among 
the regulations that the petition cites as inadequate are shark finning 
bans and shark finning regulations. Shark finning bans are currently 
one of the most widely used forms of shark utilization regulations, and 
the petition notes that 21 countries, the European Union, and 9 
Regional Fisheries Management Organizations (RFMOs) have implemented 
shark finning bans (CITES, 2013). However, the petition contends that 
these shark finning bans are often ineffective as enforcement is 
difficult or lacking, implementation in RFMOs and international 
agreements is not always binding, and catches often go unreported 
(CITES, 2013). The petition also states that shark finning regulations 
tend to have loopholes that can be exploited to allow continued 
finning. Many shark finning regulations require that both the carcass 
and the fins be landed, but not necessarily naturally attached. 
Instead, the regulations impose a fin to carcass ratio weight, which is 
usually 5 percent (Dulvy et al., 2008). This allows fishermen to 
preferentially retain the carcasses of valuable species and valuable 
fins from other species in order to maximize profits (Abercrombie et 
al., 2005). In 2010, the United States passed the Shark Conservation 
Act, which except for a limited exception regarding smooth dogfish, 
requires all sharks to be landed with their fins attached, abolishing 
the fin to carcass ratio. However, in other parts of the species' 
range, the inadequacy of existing finning bans may be contributing to 
further declines in the species by allowing the wasteful practice of 
shark finning at sea to continue.
    In the Atlantic United States, smooth hammerhead sharks are managed 
as part of the Large Coastal Shark (LCS) complex group under the U.S. 
Highly Migratory Species Fishery Management Plan (HMS FMP). The 
petition asserts that the inclusion of smooth hammerheads in the LCS 
complex offers minimal to no protection to the smooth hammerhead shark, 
and that implementation of Amendment 5 to the HMS FMP does not cover 
smooth hammerhead sharks. We find that the petitioners are incorrect in 
their assertion.
    Amendments, in general, are rulemakings that amend FMPs, and in 
2012, NMFS published a draft of Amendment 5 to the 2006 HMS FMP (77 FR 
73029) that proposed measures designed to reduce fishing mortality and 
effort in order to rebuild various overfished Atlantic shark species 
while ensuring that a limited sustainable shark fishery for certain 
species could be maintained. After considering all of the public 
comments on Draft Amendment 5, NMFS split Amendment 5 into two 
rulemakings: Amendment 5a (which addressed scalloped hammerhead, 
sandbar, blacknose, and Gulf of Mexico blacktip sharks) and Amendment 
5b (which addressed dusky sharks).
    Amendment 5a was implemented in 2013 (78 FR 40318) and was a 
rulemaking designed to maintain the rebuilding of sandbar sharks, end 
overfishing and rebuild scalloped hammerhead and Atlantic blacknose 
sharks, establish total allowable catches (TAC) and commercial quotas 
for Gulf of Mexico blacknose and blacktip sharks, and establish new 
recreational shark fishing management measures. Although Amendment 5a 
focuses specifically on the rebuilding of scalloped hammerhead sharks, 
the regulatory measures affect and likely benefit the entire hammerhead 
complex. For example, with the implementation of Amendment 5a, 
commercial hammerhead shark quotas (which include smooth, scalloped and 
great hammerheads) have been separated from the aggregated LCS 
management group quotas, with links between the Atlantic hammerhead 
shark quota and the Atlantic aggregated LCS quotas, and links between 
the Gulf of Mexico hammerhead shark quota and Gulf of Mexico aggregated 
LCS quotas. In other words, if either the aggregated LCS or hammerhead 
shark quota is reached, then both the aggregated LCS and hammerhead 
shark management groups will close. These quota linkages were 
implemented as an additional conservation benefit for the hammerhead 
shark complex due to the concern of hammerhead shark bycatch and 
additional mortality from fishermen targeting other sharks within the 
LCS complex. The separation of the hammerhead species for quota 
monitoring purposes from other sharks within the LCS management unit 
allows for better management of the specific utilization of the 
hammerhead shark complex, which includes smooth hammerhead sharks.
    Additionally, although the petition asserts that Amendment 5 did 
not cover the smooth hammerhead shark, it acknowledges that an 
applicable protection for smooth hammerhead sharks from Amendment 5a is 
the minimum size catch requirement for recreational fishermen, which 
has been set at 6.5 feet (198 cm). However, the petition notes that 
this minimum size is below the size at maturity for smooth hammerhead 
sharks (estimated at 210-250 cm for males and 270 cm for females), and, 
as such, allows for the continued catch of immature smooth hammerhead 
sharks.
    Finally, although not part of Amendment 5a but still applicable to 
the smooth hammerhead shark, we note that starting in 2011, U.S. 
fishermen using pelagic longline (PLL) gear and operating in the 
Atlantic Ocean, including the Caribbean Sea, and dealers buying from 
vessels that have PLL gear onboard, have been prohibited from retaining 
onboard, transshipping, landing, storing, selling, or offering for sale 
any part or whole carcass of hammerhead sharks of the family Sphyrnidae 
(except for S. tiburo) (76 FR 53652; August 29, 2011). This prohibition 
provides an additional benefit to the species by reducing the fishery-
related mortality of this species within the Atlantic.
    While we find that the petitioners are incorrect in their assertion 
that the inclusion of smooth hammerheads in the LCS complex offers 
minimal to no protection to the smooth hammerhead shark and the 
implementation of Amendment 5 (presumably Amendment 5a) does not cover 
smooth hammerhead sharks, we will evaluate the adequacy of these and 
the other existing regulations in relation to the threat of 
overutilization of the species during the status review.
    In terms of other national measures, the petition provides a list 
of countries that have prohibited shark fishing in their respective 
waters, but notes that many suffer from enforcement related issues, 
citing cases of illegal fishing and shark finning. The petition also 
highlights enforceability issues associated with international 
agreements regarding smooth hammerhead shark utilization and trade. 
Based on the information presented in the petition as well as 
information in our files, we find that further evaluation of the 
adequacy of existing regulatory measures is needed to determine whether 
this may be a

[[Page 48060]]

threat contributing to the extinction risk of the species.

Other Natural or Manmade Factors Affecting Its Continued Existence

    The petition contends that ``biological vulnerability'' in the form 
of long gestation periods, late maturity, large size, relatively 
infrequent reproduction, and high post-catch mortality rates exacerbate 
the threat of overutilization and increase the species' susceptibility 
to extinction. The petition cites Cort[eacute]s et al. (2010), which 
estimated a post-release mortality of 85 percent for smooth hammerheads 
caught on pelagic longline. In New South Wales, Australia, Reid and 
Krogh (1992) examined shark mortality rates in protective beach nets 
set off the coast between 1950 and 1990, and found that only 1.7 
percent of the total number of hammerheads caught in the net (total 
=2,031 sharks) were still alive when the nets were cleared. These high 
post-release mortality rates increases the sharks' vulnerability to 
fishing pressure, with any capture of this species, regardless of 
whether the fishing is targeted or incidental, contributing to its 
fishing mortality. However, in an ecological risk assessment of 20 
shark stocks, Cort[eacute]s et al. (2010) found that the smooth 
hammerhead ranked among the least vulnerable sharks to pelagic longline 
fisheries in the Atlantic Ocean, although the authors note that the 
amount and quality of data regarding the species was considerably lower 
than for the other species. Overall, this information suggests that the 
species' biological vulnerability (low productivity and high post-
release mortality) may be a threat in certain fisheries, possibly 
contributing to an increased risk of extinction, but may not be a cause 
for concern in other fisheries.
    The petition also contends that the species' tendency to form 
juvenile aggregations increases the species' susceptibility to 
extinction. Juveniles of the species have been known to aggregate in 
shallow, coastal waters (Zeeberg et al., 2006; Diemer et al., 2011; 
CITES, 2013), which increases the species' susceptibility to being 
caught in large numbers. These shallow areas are close to coastlines 
and, as such, generally face heavier fishing pressure from commercial, 
artisanal, and recreational fisheries. Many studies of targeted and 
retained bycatch shark fisheries have demonstrated that a large amount 
of the catch of smooth hammerhead sharks are juveniles (Bizzarro et 
al., 1998; Buencuerpo et al., 1998; Zeeberg et al., 2006; Diemer et 
al., 2007). The removal of substantial numbers of juveniles from a 
population can have significant effects on recruitment to the 
population and could lead to population declines and potentially 
extinction of a species. Given the observed declines in the species, 
this juvenile aggregating behavior and, consequently, increased 
susceptibility to being caught in large numbers, may be a threat that 
is contributing to the extinction risk of the species.
    Thus, the available information in the petition and in our files 
suggests that the species' natural biological vulnerability (including 
high post-catch mortality rates and aggregating behavior) may present a 
threat that warrants further exploration to see if it is exacerbating 
the threat of overutilization and contributing to the species' risk of 
extinction that is cause for concern.

Summary of ESA Section 4(a)(1) Factors

    We conclude that the petition presents 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 factors) may be causing or contributing 
to an increased risk of extinction for the smooth hammerhead shark.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, and based on the above 
analysis, we conclude the petition presents substantial scientific 
information indicating the petitioned action of listing the smooth 
hammerhead shark as threatened or endangered may be warranted. 
Therefore, in accordance with section 4(b)(3)(B) of the ESA and NMFS' 
implementing regulations (50 CFR 424.14(b)(2)), we will commence a 
status review of the species. During our status review, we will first 
determine whether the species is in danger of extinction (endangered) 
or likely to become so (threatened) throughout all or a significant 
portion of its range. If it is not, then we will consider whether the 
populations identified by the petitioners meet the DPS policy criteria, 
and if so, whether any of these are threatened or endangered. If no 
populations meet the DPS policy criteria, then we will consider whether 
a similarity of appearance listing is warranted. We now initiate this 
review, and thus, the smooth hammerhead shark is considered to be a 
candidate species (69 FR 19975; April 15, 2004). Within 12 months of 
the receipt of the petition (April 27, 2016), we will make a finding as 
to whether listing the species (or any petitioned DPSs) as endangered 
or threatened is warranted as required by section 4(b)(3)(B) of the 
ESA. If listing the species (or any petitioned DPSs) or a similarity of 
appearance listing is found to be warranted, we will publish a proposed 
rule and solicit public comments before developing and publishing a 
final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether the smooth hammerhead shark is endangered or threatened. 
Specifically, we are soliciting information in the following areas: (1) 
Historical and current distribution and abundance of this species 
throughout its range; (2) historical and current population trends; (3) 
life history in marine environments, including identified nursery 
grounds; (4) historical and current data on smooth hammerhead shark 
bycatch and retention in industrial, commercial, artisanal, and 
recreational fisheries worldwide; (5) historical and current data on 
smooth hammerhead shark discards in global fisheries; (6) data on the 
trade of smooth hammerhead shark products, including fins, jaws, meat, 
and teeth; (7) any current or planned activities that may adversely 
impact the species; (8) ongoing or planned efforts to protect and 
restore the species and its habitats; (9) population structure 
information, such as genetics data; and (10) 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 to the 
Office of Protected Resources (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 48061]]


    Dated: August 5, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-19550 Filed 8-10-15; 8:45 am]
 BILLING CODE 3510-22-P