Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Smalltail Shark as Threatened or Endangered Under the Endangered Species Act, 33075-33079 [2023-10891]

Download as PDF Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules § 302–6.207 What factors should we consider in determining whether quarters are temporary? In determining whether quarters are ‘‘temporary’’, you should consider factors such as reasonable time when the employee’s residence at the old official station becomes temporary and no longer suitable for permanent residence (e.g., household goods have been shipped and are unavailable to the employee and their immediate family), the duration of the lease, movement of household goods into the quarters, the type of quarters, the employee’s expressions of intent, attempts to secure a permanent dwelling, and the length of time the employee occupies the quarters. PART 302–17—TAXES ON RELOCATION EXPENSES 4. The authority for part 302–17 continues to read as follows: ■ Authority: 5 U.S.C. 5724b; 5 U.S.C 5738; E.O. 11609, as amended, 3 CFR, 1971–1975 Comp., p.586. § 302–17.21 [Amended] 5. Amend § 302–17.21(d) by removing ‘‘actual expense or lump sum method’’ in the second sentence and adding in its place ‘‘lodgings-plus, actual expense, or lump sum method’’. ■ [FR Doc. 2023–10695 Filed 5–22–23; 8:45 am] BILLING CODE 6820–14–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 230517–0132; RTID 0648– XR127] Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Smalltail Shark as Threatened or Endangered Under the Endangered Species Act National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: 90-Day petition finding, request for information, and initiation of status review. lotter on DSK11XQN23PROD with PROPOSALS1 AGENCY: We (NMFS) announce a positive 90-day finding on a petition to list the smalltail shark (Carcharhinus porosus) as threatened or endangered under the Endangered Species Act (ESA). The petitioner also requests that we designate critical habitat. We find SUMMARY: VerDate Sep<11>2014 16:36 May 22, 2023 Jkt 259001 that the petition and information readily available in our files present substantial scientific or commercial information indicating that listing the smalltail shark as threatened or endangered may be warranted. Therefore, we are commencing a review of the status of the smalltail shark to determine whether listing under the ESA is warranted. To support a comprehensive status review, we are soliciting scientific and commercial data regarding this species. DATES: Scientific and commercial data pertinent to the petitioned action must be received by July 24, 2023. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2023–0031 by the following method: Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA–NMFS–2023–0031 in the Search box. Click on the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. 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). Interested persons may obtain a copy of the petition online at the NMFS website: https://www.fisheries.noaa.gov/ national/endangered-speciesconservation/petitions-awaiting-90-dayfindings. FOR FURTHER INFORMATION CONTACT: Joe Heublein, NMFS Southeast Region, 727–209–5962 or Adam Brame, NMFS Southeast Region, 727–209–5958. SUPPLEMENTARY INFORMATION: Background On October 31, 2022, we received a petition from the Center for Biological Diversity to list the smalltail shark (Carcharhinus porosus) as an endangered or threatened species under the ESA, and to designate critical habitat concurrent with the listing. The petition also requests that, if we determine the smalltail shark warrants listing as a threatened species, we promulgate a protective regulation PO 00000 Frm 00098 Fmt 4702 Sfmt 4702 33075 under section 4(d) of the ESA, and requests that we promulgate a regulation under section 4(e) of the ESA for species similar in appearance to the smalltail shark. The petitioner asserts that fishery overexploitation for meat, fins, oil, and other byproducts, in addition to climate change, habitat degradation, pollution, inadequacy of regulatory mechanisms, and life history characteristics, is driving this species towards extinction. Copies of this petition are available from us (see ADDRESSES, above). ESA Statutory and Regulatory 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 we find 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 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 must address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (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 E:\FR\FM\23MYP1.SGM 23MYP1 lotter on DSK11XQN23PROD with PROPOSALS1 33076 Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules 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 to address identified threats; or 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 the Services (50 CFR 424.14(h)(1)(i)) define ‘‘substantial scientific or commercial information’’ in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition’s claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered substantial information. Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) VerDate Sep<11>2014 16:36 May 22, 2023 Jkt 259001 a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d). If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g). We may also consider information readily available at the time the determination is made. See 50 CFR 424.14(h)(1)(ii). We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, or letters from authorities). See 50 CFR 424.14(c)(6). The substantial scientific or commercial information standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petitioned action will generally not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information or analysis not previously considered. See 50 CFR 424.14(h)(1)(iii). At the 90-day finding stage, 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 PO 00000 Frm 00099 Fmt 4702 Sfmt 4702 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 conducting an impartial scientific review 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 necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future. 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, in light of 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 is at risk of extinction such that listing, delisting, or reclassification may be warranted; 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 E:\FR\FM\23MYP1.SGM 23MYP1 Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS1 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 for Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by such organizations or made under other Federal or state statutes may be informative, but such classification alone will not alone provide sufficient basis for a positive 90-day finding under the ESA. For example, as explained by NatureServe, its 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:// explorer.natureserve.org/ AboutTheData/DataTypes/ ConservationStatusCategories). 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. Smalltail Shark Species Description Smalltail sharks (C. porosus) are members of the ground shark family (Carcharhinidae). These relatively small sharks—reaching a maximum length of about 5 ft (1.5 m, Compagno 1984)—are generally found in estuaries and nearshore waters of the western Atlantic Ocean from Brazil to the northern Gulf of Mexico, though they are generally absent throughout the Caribbean Islands (Compagno 1984). They tend to associate with the bottom and are generally found over mud substrates (Compagno 1984). Smalltail sharks have large eyes, a long, pointed snout and lack an interdorsal ridge. Uniquely, the origin of their second dorsal fin is found above the midpoint of the anal fin. Their coloration is gray on the dorsal surface and white on the ventral. VerDate Sep<11>2014 16:36 May 22, 2023 Jkt 259001 Smalltail sharks are opportunistic predators and feed on bony fishes and invertebrates in shallow waters to depths of 275 ft (84 m). The smalltail shark is a relatively slow-growing viviparous shark with reproduction occurring year-round and a maximum litter size of nine embryos (Lessa et al. 1999). Both male and female smalltail sharks mature at approximately six years of age and maximum age has been documented as 12 years (Lessa and Santana 1998). Analysis of the Petition We first evaluated the information presented in the petition. We find that the petitioners presented the information required in 50 CFR 424.14(c) and sufficient information under 424.14(d) to allow us to review the petition. The petition contains information on the smalltail shark, including the species description, distribution, habitat, population status and trends, and factors contributing to the species’ status. Further, the petitioner asserts that the smalltail shark is impacted by overexploitation, climate change, habitat degradation, pollution, and its life history characteristics and clearly stated the petitioned action requested of listing the smalltail shark as threatened or endangered. Finally, the petition included a discussion of the smalltail shark’s taxonomy, and we conclude that the petitioned organism is a ‘‘species’’ eligible for further consideration of listing. Population Status and Trends The petition separates discussion of abundance and population trends into two regions: Western Central Atlantic (i.e., United States Gulf of Mexico, Southern Gulf of Mexico, and Caribbean) and Brazil (i.e., Northern Brazil, and Eastern and Southern Brazil). Overall, the petitioner states the global smalltail shark population has declined by more than 80 percent over three generations (27 years). Based on information readily available in our files, observations of the smalltail shark are rare in U.S. waters and appear restricted to sporadic interactions with fisheries in the Gulf of Mexico. Smalltail shark landing records were identified in U.S. fisheries reports from the Gulf of Mexico from 1984 to 2015, with records present in 14 years during this time period (NOAA Fisheries Southeast Fisheries Science Center, unpublished data). The petitioner references trend data involving other shark species and environmental modeling that estimates a reduction in catch probabilities of smalltail shark in the United States Gulf PO 00000 Frm 00100 Fmt 4702 Sfmt 4702 33077 of Mexico. Information presented in the petition and available in our files do not indicate a clear trend in smalltail shark abundance in the United States Gulf of Mexico. The petitioner notes a reduction in smalltail shark abundance and landings in the Southern Gulf of Mexico based in part on limited landings and anecdotal data. In the Caribbean (the Central and South American coasts), the smalltail shark has been documented as a significant proportion of shark catch in some countries with varying abundance and trend data (Pollum et al. 2020). Overall, information presented in the petition and available in our files do not indicate a clear trend in abundance of smalltail sharks in the Western Central Atlantic Ocean. Available commercial fishing catch and landings data indicate that Brazil is the core of the smalltail shark distribution. Pollum et al. (2020) summarized information from multiple fisheries in Northern Brazil in the 1980s and 1990s where smalltail shark was the most commonly caught elasmobranch. Pollum et al. (2020) also noted that smalltail shark comprised up to 70% of catch weight in artisanal gillnet fisheries in Northern Brazil in the 1980s. The petitioner provides multiple lines of evidence, including catch rates, demographic modelling, and landings, suggesting a significant population decline (85–90% decline over 27 years) in this region. Furthermore, no recent recovery has been observed as ongoing fishing mortality is estimated to exceed population growth rates (Feitosa et al. 2020; Santana et al. 2020). In Eastern and Southern Brazil, the petitioner notes that the smalltail shark was common in the 1970s and 1980s and observations and catch records have become increasingly rare or absent since that time. The petitioner notes range reduction and localized extinction of the smalltail shark throughout Brazil. Information presented in the petition and available in our files suggests a potential significant population decline and range contraction of the smalltail shark in Brazilian waters. Thus, the petition provides credible information that the species’ current population status and trends may warrant the petitioned action. Information on Impacts and Threats to the Species Next, we evaluated whether the petition, viewed in context of information readily available in our files, credibly suggests that one or more of the factors listed in ESA section 4(a)(1) may pose a risk of extinction for the smalltail shark. The petition states E:\FR\FM\23MYP1.SGM 23MYP1 33078 Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules that smalltail shark is threatened or endangered because of four of the five factors in section 4(a)(1): present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. In the following sections, we summarize the information presented in the petition and in our files to determine whether the petitioned action may be warranted. The Present or Threatened Destruction, Modification, or Curtailment of the Smalltail Shark’s Habitat or Range The petitioner includes a description of general threats to marine biodiversity and elasmobranchs (e.g., coastal development, agricultural and urban runoff) in Brazil, the Caribbean, and the U.S. Gulf of Mexico. The petition includes a description of the specific threat of contaminant exposure for smalltail sharks. Harmful levels of contaminants were documented in smalltail shark tissue from Trinidad and Tobago and Brazil (Mohammed and Mohammed 2017; Wosnick et al. 2021). The petition, however, did not provide any evidence of a decline in the species due to threats to habitat or contaminant exposure. Overall, the petition fails to present substantial scientific or commercial information indicating that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the smalltail shark, nor do we have such information readily available in our files. lotter on DSK11XQN23PROD with PROPOSALS1 Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petition states overutilization for fishing as the primary cause of the smalltail shark decline. The petition primarily includes discussion of the impacts of direct harvest of smalltail shark in Brazil for fin and meat trade, but does not specifically discuss overutilization of smalltail sharks in fisheries outside of Brazil. Impacts of fishing on the smalltail shark are summarized above in the Population Status and Trends section, and this information suggests a major population decline in Brazil due to fishing mortality. Therefore, we find that the petition presents substantial scientific information indicating that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the smalltail shark. VerDate Sep<11>2014 16:36 May 22, 2023 Jkt 259001 Inadequacy of Existing Regulatory Mechanisms for Smalltail Shark Protection The petition includes discussion of smalltail shark fisheries regulations by country. In the United States, harvest of smalltail sharks is prohibited in stateand Federally-managed fisheries. Mexico and Colombia do not have specific prohibitions or fisheries regulations pertaining to smalltail sharks. As summarized above in the Population Status and Trends section, population abundance and trends of the smalltail shark in the Western Central Atlantic is inconclusive, and thus the adequacy of existing regulations in these counties is unknown. Information suggests a major decline of the smalltail shark population in Brazil, and the petition states overutilization for fishing as the primary cause of the smalltail shark decline. The petition notes that fisheries regulations in Brazil are insufficient to protect smalltail shark. The petition states that the legal framework protecting smalltail sharks and other elasmobranchs in Brazil is insufficient and that obsolete and the country has not had a nationally standardized fisheries data collection system since 2007. While smalltail shark was listed on the Brazilian Ordinance of the Ministry of Environment no. 445—which restricted the harvest and trade of species listed on Brazil’s Red List of Endangered and Threatened Species—it was suspended in 2015, half of 2016, 2017, and half of 2018. These details indicate that both inadequate regulations and low compliance and enforcement in Brazilian fisheries are failing to protect the species from fishing mortality. Therefore, we find that the petition presents substantial scientific and commercial information indicating that the inadequacy of existing regulatory mechanisms is a threat to the smalltail shark. Other Natural or Manmade Factors Affecting Its Continued Existence The majority of threats from climate change described in the petition are not specific to the smalltail shark or their habitat in the marine and estuarine waters of the Western Central Atlantic and Brazil. The petition fails to present credible new information or otherwise offer substantial scientific or commercial information indicating that other natural or manmade factors are a threat to the smalltail shark. Petition Finding After reviewing the petition, the literature cited in the petition, and other PO 00000 Frm 00101 Fmt 4702 Sfmt 4702 information readily available in our files, we find that there is substantial scientific and commercial information indicating that listing the smalltail shark, C. porosus, as a threatened or endangered species may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS’ implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of this species. During the status review, we will determine whether C. porosus is in danger of extinction (endangered) or likely to become so in the foreseeable future (threatened) throughout all or a significant portion of its range. As the petition did not request that we consider listing any specific DPSs, we will first assess the status of the taxonomic species, and then based on that assessment, consider whether additional analysis of potential DPSs is warranted and appropriate. As required by section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the petition (October 31, 2022), we will make a finding as to whether listing the smalltail shark (or any DPSs) as an endangered or threatened species is warranted. If listing is warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule. If applicable, the request to promulgate regulations under section 4(d) and section 4(e) of the ESA would be considered in accordance with the Administrative Procedure Act (5 U.S.C. 553) and applicable Departmental regulations, and appropriate action would be taken (50 CFR 424.14(j)). Information Solicited To ensure that the status review is based on the best available scientific and commercial data, we are soliciting comments and information from interested parties on the status of the smalltail shark. Specifically, we are soliciting information in the following areas: (1) Historical and current abundance and population trends of C. porosus throughout its range; (2) Historical and current distribution and population structure of C. porosus; (3) Information on C. porosus site fidelity, population connectivity, and movements within and between populations (including estimates of genetic diversity across and within populations); (4) Historical and current condition of C. porosus habitat; (5) Information on C. porosus life history and reproductive parameters; (6) Data on C. porosus diet and prey; E:\FR\FM\23MYP1.SGM 23MYP1 Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS1 (7) Information and data on common C. porosus disease(s) and/or contaminant exposure; (8) Historical and current data on C. porosus catch, bycatch, and retention in industrial, commercial, artisanal, and recreational fisheries throughout its range; (9) Past, current, and potential threats, including any current or planned activities that may adversely impact C. porosus over the short-term or longterm; (10) Data on trade of C. porosus products; and (11) Management, regulatory, or conservation programs for C. porosus, VerDate Sep<11>2014 16:36 May 22, 2023 Jkt 259001 including mitigation measures related to any known or potential threats to the species throughout its range. 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 in accordance with the instructions provided in the ADDRESSES section above. We will base our findings on a review of the best available scientific and commercial data, including relevant information received during the public comment period. PO 00000 Frm 00102 Fmt 4702 Sfmt 9990 33079 References Cited A complete list of all references is available upon request from the Protected Resources Division of the NMFS Southeast Regional Office (see FOR FURTHER INFORMATION CONTACT). Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: May 17, 2023. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2023–10891 Filed 5–22–23; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\23MYP1.SGM 23MYP1

Agencies

[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Proposed Rules]
[Pages 33075-33079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10891]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 230517-0132; RTID 0648-XR127]

Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List the Smalltail 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, and
initiation of status review.

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SUMMARY: We (NMFS) announce a positive 90-day finding on a petition to
list the smalltail shark (Carcharhinus porosus) as threatened or
endangered under the Endangered Species Act (ESA). The petitioner also
requests that we designate critical habitat. We find that the petition
and information readily available in our files present substantial
scientific or commercial information indicating that listing the
smalltail shark as threatened or endangered may be warranted.
Therefore, we are commencing a review of the status of the smalltail
shark to determine whether listing under the ESA is warranted. To
support a comprehensive status review, we are soliciting scientific and
commercial data regarding this species.

DATES: Scientific and commercial data pertinent to the petitioned
action must be received by July 24, 2023.

ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2023-0031 by the following method:
Electronic Submissions: Submit all electronic public comments via
the Federal eRulemaking Portal. Go to https://www.regulations.gov and
enter NOAA-NMFS-2023-0031 in the Search box. Click on the ``Comment''
icon, complete the required fields, and enter or attach your comments.
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).
Interested persons may obtain a copy of the petition online at the
NMFS website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/petitions-awaiting-90-day-findings.

FOR FURTHER INFORMATION CONTACT: Joe Heublein, NMFS Southeast Region,
727-209-5962 or Adam Brame, NMFS Southeast Region, 727-209-5958.

SUPPLEMENTARY INFORMATION:

Background

On October 31, 2022, we received a petition from the Center for
Biological Diversity to list the smalltail shark (Carcharhinus porosus)
as an endangered or threatened species under the ESA, and to designate
critical habitat concurrent with the listing. The petition also
requests that, if we determine the smalltail shark warrants listing as
a threatened species, we promulgate a protective regulation under
section 4(d) of the ESA, and requests that we promulgate a regulation
under section 4(e) of the ESA for species similar in appearance to the
smalltail shark. The petitioner asserts that fishery overexploitation
for meat, fins, oil, and other byproducts, in addition to climate
change, habitat degradation, pollution, inadequacy of regulatory
mechanisms, and life history characteristics, is driving this species
towards extinction. Copies of this petition are available from us (see
ADDRESSES, above).

ESA Statutory and Regulatory 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 we find 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 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 must address a species,
which is defined to also include subspecies and, for any vertebrate
species, any distinct population segment (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

[[Page 33076]]

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 to address identified threats; or 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 the Services (50 CFR
424.14(h)(1)(i)) define ``substantial scientific or commercial
information'' in the context of reviewing a petition to list, delist,
or reclassify a species as credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted. Conclusions drawn
in the petition without the support of credible scientific or
commercial information will not be considered substantial information.
Our determination as to whether the petition provides substantial
scientific or commercial information indicating that the petitioned
action may be warranted will depend in part on the degree to which the
petition includes the following types of information: (1) information
on current population status and trends and estimates of current
population sizes and distributions, both in captivity and the wild, if
available; (2) identification of the factors under section 4(a)(1) of
the ESA that may affect the species and where these factors are acting
upon the species; (3) whether and to what extent any or all of the
factors alone or in combination identified in section 4(a)(1) of the
ESA may cause the species to be an endangered species or threatened
species (i.e., the species is currently in danger of extinction or is
likely to become so within the foreseeable future), and, if so, how
high in magnitude and how imminent the threats to the species and its
habitat are; (4) information on adequacy of regulatory protections and
effectiveness of conservation activities by States as well as other
parties, that have been initiated or that are ongoing, that may protect
the species or its habitat; and (5) a complete, balanced representation
of the relevant facts, including information that may contradict claims
in the petition. See 50 CFR 424.14(d).
If the petitioner provides supplemental information before the
initial finding is made and states that it is part of the petition, the
new information, along with the previously submitted information, is
treated as a new petition that supersedes the original petition, and
the statutory timeframes will begin when such supplemental information
is received. See 50 CFR 424.14(g).
We may also consider information readily available at the time the
determination is made. See 50 CFR 424.14(h)(1)(ii). We are not required
to consider any supporting materials cited by the petitioner if the
petitioner does not provide electronic or hard copies, to the extent
permitted by U.S. copyright law, or appropriate excerpts or quotations
from those materials (e.g., publications, maps, reports, or letters
from authorities). See 50 CFR 424.14(c)(6).
The substantial scientific or commercial information standard must
be applied in light of any prior reviews or findings we have made on
the listing status of the species that is the subject of the petition.
Where we have already conducted a finding on, or review of, the listing
status of that species (whether in response to a petition or on our own
initiative), we will evaluate any petition received thereafter seeking
to list, delist, or reclassify that species to determine whether a
reasonable person conducting an impartial scientific review would
conclude that the action proposed in the petition may be warranted
despite the previous review or finding. Where the prior review resulted
in a final agency action--such as a final listing determination, 90-day
not-substantial finding, or 12-month not-warranted finding--a
petitioned action will generally not be considered to present
substantial scientific and commercial information indicating that the
action may be warranted unless the petition provides new information or
analysis not previously considered. See 50 CFR 424.14(h)(1)(iii).
At the 90-day finding stage, 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 conducting an impartial
scientific review 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 necessitates a negative 90-day finding if a
reasonable person conducting an impartial scientific review would
conclude that the unknown information itself suggests the species may
be at risk of extinction presently or within the foreseeable future.
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, in light of 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 is at risk of extinction such that listing, delisting, or
reclassification may be warranted; 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

[[Page 33077]]

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 for
Conservation of Nature (IUCN), the American Fisheries Society, or
NatureServe, as evidence of extinction risk for a species. Risk
classifications by such organizations or made under other Federal or
state statutes may be informative, but such classification alone will
not alone provide sufficient basis for a positive 90-day finding under
the ESA. For example, as explained by NatureServe, its 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://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). 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.

Smalltail Shark Species Description

Smalltail sharks (C. porosus) are members of the ground shark
family (Carcharhinidae). These relatively small sharks--reaching a
maximum length of about 5 ft (1.5 m, Compagno 1984)--are generally
found in estuaries and nearshore waters of the western Atlantic Ocean
from Brazil to the northern Gulf of Mexico, though they are generally
absent throughout the Caribbean Islands (Compagno 1984). They tend to
associate with the bottom and are generally found over mud substrates
(Compagno 1984). Smalltail sharks have large eyes, a long, pointed
snout and lack an interdorsal ridge. Uniquely, the origin of their
second dorsal fin is found above the midpoint of the anal fin. Their
coloration is gray on the dorsal surface and white on the ventral.
Smalltail sharks are opportunistic predators and feed on bony
fishes and invertebrates in shallow waters to depths of 275 ft (84 m).
The smalltail shark is a relatively slow-growing viviparous shark with
reproduction occurring year-round and a maximum litter size of nine
embryos (Lessa et al. 1999). Both male and female smalltail sharks
mature at approximately six years of age and maximum age has been
documented as 12 years (Lessa and Santana 1998).

Analysis of the Petition

We first evaluated the information presented in the petition. We
find that the petitioners presented the information required in 50 CFR
424.14(c) and sufficient information under 424.14(d) to allow us to
review the petition. The petition contains information on the smalltail
shark, including the species description, distribution, habitat,
population status and trends, and factors contributing to the species'
status. Further, the petitioner asserts that the smalltail shark is
impacted by overexploitation, climate change, habitat degradation,
pollution, and its life history characteristics and clearly stated the
petitioned action requested of listing the smalltail shark as
threatened or endangered. Finally, the petition included a discussion
of the smalltail shark's taxonomy, and we conclude that the petitioned
organism is a ``species'' eligible for further consideration of
listing.

Population Status and Trends

The petition separates discussion of abundance and population
trends into two regions: Western Central Atlantic (i.e., United States
Gulf of Mexico, Southern Gulf of Mexico, and Caribbean) and Brazil
(i.e., Northern Brazil, and Eastern and Southern Brazil). Overall, the
petitioner states the global smalltail shark population has declined by
more than 80 percent over three generations (27 years).
Based on information readily available in our files, observations
of the smalltail shark are rare in U.S. waters and appear restricted to
sporadic interactions with fisheries in the Gulf of Mexico. Smalltail
shark landing records were identified in U.S. fisheries reports from
the Gulf of Mexico from 1984 to 2015, with records present in 14 years
during this time period (NOAA Fisheries Southeast Fisheries Science
Center, unpublished data). The petitioner references trend data
involving other shark species and environmental modeling that estimates
a reduction in catch probabilities of smalltail shark in the United
States Gulf of Mexico. Information presented in the petition and
available in our files do not indicate a clear trend in smalltail shark
abundance in the United States Gulf of Mexico.
The petitioner notes a reduction in smalltail shark abundance and
landings in the Southern Gulf of Mexico based in part on limited
landings and anecdotal data. In the Caribbean (the Central and South
American coasts), the smalltail shark has been documented as a
significant proportion of shark catch in some countries with varying
abundance and trend data (Pollum et al. 2020). Overall, information
presented in the petition and available in our files do not indicate a
clear trend in abundance of smalltail sharks in the Western Central
Atlantic Ocean.
Available commercial fishing catch and landings data indicate that
Brazil is the core of the smalltail shark distribution. Pollum et al.
(2020) summarized information from multiple fisheries in Northern
Brazil in the 1980s and 1990s where smalltail shark was the most
commonly caught elasmobranch. Pollum et al. (2020) also noted that
smalltail shark comprised up to 70% of catch weight in artisanal
gillnet fisheries in Northern Brazil in the 1980s. The petitioner
provides multiple lines of evidence, including catch rates, demographic
modelling, and landings, suggesting a significant population decline
(85-90% decline over 27 years) in this region. Furthermore, no recent
recovery has been observed as ongoing fishing mortality is estimated to
exceed population growth rates (Feitosa et al. 2020; Santana et al.
2020). In Eastern and Southern Brazil, the petitioner notes that the
smalltail shark was common in the 1970s and 1980s and observations and
catch records have become increasingly rare or absent since that time.
The petitioner notes range reduction and localized extinction of the
smalltail shark throughout Brazil.
Information presented in the petition and available in our files
suggests a potential significant population decline and range
contraction of the smalltail shark in Brazilian waters. Thus, the
petition provides credible information that the species' current
population status and trends may warrant the petitioned action.

Information on Impacts and Threats to the Species

Next, we evaluated whether the petition, viewed in context of
information readily available in our files, credibly suggests that one
or more of the factors listed in ESA section 4(a)(1) may pose a risk of
extinction for the smalltail shark. The petition states

[[Page 33078]]

that smalltail shark is threatened or endangered because of four of the
five factors in section 4(a)(1): present or threatened destruction,
modification, or curtailment of habitat or range; overutilization for
commercial, recreational, scientific, or educational purposes;
inadequacy of existing regulatory mechanisms; and other natural or
manmade factors affecting its continued existence. In the following
sections, we summarize the information presented in the petition and in
our files to determine whether the petitioned action may be warranted.

The Present or Threatened Destruction, Modification, or Curtailment of
the Smalltail Shark's Habitat or Range

The petitioner includes a description of general threats to marine
biodiversity and elasmobranchs (e.g., coastal development, agricultural
and urban runoff) in Brazil, the Caribbean, and the U.S. Gulf of
Mexico. The petition includes a description of the specific threat of
contaminant exposure for smalltail sharks. Harmful levels of
contaminants were documented in smalltail shark tissue from Trinidad
and Tobago and Brazil (Mohammed and Mohammed 2017; Wosnick et al.
2021). The petition, however, did not provide any evidence of a decline
in the species due to threats to habitat or contaminant exposure.
Overall, the petition fails to present substantial scientific or
commercial information indicating that the present or threatened
destruction, modification, or curtailment of habitat or range is a
threat to the smalltail shark, nor do we have such information readily
available in our files.

Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

The petition states overutilization for fishing as the primary
cause of the smalltail shark decline. The petition primarily includes
discussion of the impacts of direct harvest of smalltail shark in
Brazil for fin and meat trade, but does not specifically discuss
overutilization of smalltail sharks in fisheries outside of Brazil.
Impacts of fishing on the smalltail shark are summarized above in the
Population Status and Trends section, and this information suggests a
major population decline in Brazil due to fishing mortality. Therefore,
we find that the petition presents substantial scientific information
indicating that overutilization for commercial, recreational,
scientific, or educational purposes is a threat to the smalltail shark.

Inadequacy of Existing Regulatory Mechanisms for Smalltail Shark
Protection

The petition includes discussion of smalltail shark fisheries
regulations by country. In the United States, harvest of smalltail
sharks is prohibited in state- and Federally-managed fisheries. Mexico
and Colombia do not have specific prohibitions or fisheries regulations
pertaining to smalltail sharks. As summarized above in the Population
Status and Trends section, population abundance and trends of the
smalltail shark in the Western Central Atlantic is inconclusive, and
thus the adequacy of existing regulations in these counties is unknown.
Information suggests a major decline of the smalltail shark
population in Brazil, and the petition states overutilization for
fishing as the primary cause of the smalltail shark decline. The
petition notes that fisheries regulations in Brazil are insufficient to
protect smalltail shark. The petition states that the legal framework
protecting smalltail sharks and other elasmobranchs in Brazil is
insufficient and that obsolete and the country has not had a nationally
standardized fisheries data collection system since 2007. While
smalltail shark was listed on the Brazilian Ordinance of the Ministry
of Environment no. 445--which restricted the harvest and trade of
species listed on Brazil's Red List of Endangered and Threatened
Species--it was suspended in 2015, half of 2016, 2017, and half of
2018. These details indicate that both inadequate regulations and low
compliance and enforcement in Brazilian fisheries are failing to
protect the species from fishing mortality. Therefore, we find that the
petition presents substantial scientific and commercial information
indicating that the inadequacy of existing regulatory mechanisms is a
threat to the smalltail shark.

Other Natural or Manmade Factors Affecting Its Continued Existence

The majority of threats from climate change described in the
petition are not specific to the smalltail shark or their habitat in
the marine and estuarine waters of the Western Central Atlantic and
Brazil. The petition fails to present credible new information or
otherwise offer substantial scientific or commercial information
indicating that other natural or manmade factors are a threat to the
smalltail shark.

Petition Finding

After reviewing the petition, the literature cited in the petition,
and other information readily available in our files, we find that
there is substantial scientific and commercial information indicating
that listing the smalltail shark, C. porosus, as a threatened or
endangered species may be warranted. Therefore, in accordance with
section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50
CFR 424.14(h)(2)), we will commence a status review of this species.
During the status review, we will determine whether C. porosus is in
danger of extinction (endangered) or likely to become so in the
foreseeable future (threatened) throughout all or a significant portion
of its range. As the petition did not request that we consider listing
any specific DPSs, we will first assess the status of the taxonomic
species, and then based on that assessment, consider whether additional
analysis of potential DPSs is warranted and appropriate. As required by
section 4(b)(3)(B) of the ESA, within 12 months of the receipt of the
petition (October 31, 2022), we will make a finding as to whether
listing the smalltail shark (or any DPSs) as an endangered or
threatened species is warranted. If listing is warranted, we will
publish a proposed rule and solicit public comments before developing
and publishing a final rule. If applicable, the request to promulgate
regulations under section 4(d) and section 4(e) of the ESA would be
considered in accordance with the Administrative Procedure Act (5
U.S.C. 553) and applicable Departmental regulations, and appropriate
action would be taken (50 CFR 424.14(j)).

Information Solicited

To ensure that the status review is based on the best available
scientific and commercial data, we are soliciting comments and
information from interested parties on the status of the smalltail
shark. Specifically, we are soliciting information in the following
areas:
(1) Historical and current abundance and population trends of C.
porosus throughout its range;
(2) Historical and current distribution and population structure of
C. porosus;
(3) Information on C. porosus site fidelity, population
connectivity, and movements within and between populations (including
estimates of genetic diversity across and within populations);
(4) Historical and current condition of C. porosus habitat;
(5) Information on C. porosus life history and reproductive
parameters;
(6) Data on C. porosus diet and prey;

[[Page 33079]]

(7) Information and data on common C. porosus disease(s) and/or
contaminant exposure;
(8) Historical and current data on C. porosus catch, bycatch, and
retention in industrial, commercial, artisanal, and recreational
fisheries throughout its range;
(9) Past, current, and potential threats, including any current or
planned activities that may adversely impact C. porosus over the short-
term or long-term;
(10) Data on trade of C. porosus products; and
(11) Management, regulatory, or conservation programs for C.
porosus, including mitigation measures related to any known or
potential threats to the species throughout its range.
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 in
accordance with the instructions provided in the ADDRESSES section
above. We will base our findings on a review of the best available
scientific and commercial data, including relevant information received
during the public comment period.

References Cited

A complete list of all references is available upon request from
the Protected Resources Division of the NMFS Southeast Regional Office
(see FOR FURTHER INFORMATION CONTACT).

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

Dated: May 17, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-10891 Filed 5-22-23; 8:45 am]
BILLING CODE 3510-22-P

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