[Federal Register Volume 75, Number 132 (Monday, July 12, 2010)]
[Notices]
[Pages 39656-39662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16933]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 100607244-0246-01]
RIN 0648-XW40
Listing Endangered and Threatened Wildlife and Plants; 90-Day
Finding on Petitions to List the Porbeagle Shark under the Endangered
Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding.
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SUMMARY: We, NMFS, announce a 90-day finding for two petitions to list
[[Page 39657]]
porbeagle sharks (Lamna nasus) under the Endangered Species Act (ESA).
We find that neither petition presents substantial scientific
information indicating the petitioned actions may be warranted.
Accordingly, we will not initiate a status review of the species at
this time.
FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS, Northeast
Regional Office (978) 282-8485 or Marta Nammack, NMFS, Office of
Protected Resources (301) 713-1401. The petition and other pertinent
information are also available electronically at the NMFS website at
http://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/csr.htm.
References are available upon request.
SUPPLEMENTARY INFORMATION:
Background
Under Section 4(b)(3)(A) of the ESA, within 90 days after receiving
a petition to list a species under the ESA, the Secretary of Commerce
(Secretary), to the maximum extent practicable, must make a finding
whether the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted.
This finding must be promptly published in the Federal Register. In
determining whether a petition contains substantial information, we
take into account information submitted with and referenced in the
petition and all other information readily available in our files. Our
ESA implementing regulations at 50 CFR 424.14(b)(1) define
``substantial information'' as the ``amount of information that would
lead a reasonable person to believe that the measure proposed in the
petition may be warranted.'' If the petition is found to present such
information, the Secretary must conduct a review of the status of the
involved species and make a determination whether the petitioned action
is warranted within 12 months of receipt of the petition. In making a
finding on a petition to list a species, the Secretary shall consider
whether such a petition ``(i) clearly indicates the administrative
measure recommended and gives the scientific and any common name of the
species involved; (ii) 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; (iii) provides information regarding
the status of the species over all or a significant portion of its
range; and (iv) is accompanied by 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)).
On January 22, 2010, we received a petition from Wild Earth
Guardians (WEG), requesting that we list porbeagle sharks (Lamna nasus)
throughout their entire range, or as Northwest Atlantic, Northeast
Atlantic, and Mediterranean Distinct Population Segments (DPS), as
either threatened or endangered under the ESA, as well as designate
critical habitat for the species. We also received a petition from the
Humane Society of the United States (HSUS), on January 22, 2010,
requesting that we list a Northwest Atlantic DPS of porbeagle sharks as
endangered under the ESA. The WEG and HSUS will hereafter jointly be
referred to as the ``petitioners,'' and the petitions referred to
jointly as the ``petitions.'' Information contained in the petitions
focuses on the species' imperilment due to historical and continued
overfishing; modification of habitat through pollution, climate change,
and ocean acidification; failure of regulatory mechanisms; and low
productivity of the species.
ESA Statutory Provisions and Policy Considerations
Under the ESA, a listing determination can address a species,
subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532 (16)). The
ESA defines an endangered species as ``any species which is in danger
of extinction throughout all or a significant portion of its range''
(ESA section 3(6)). A threatened species is defined as a species that
is ``likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range'' (ESA
section 3(19)).
The ESA defines species to include subspecies or a DPS of any
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16);
50 CFR 424.02 (k)). The U.S. Fish and Wildlife Service and NMFS have
adopted a joint policy describing what constitutes a DPS of a taxonomic
species (61 FR 4722; February 7, 1996). The joint DPS policy identifies
two criteria for making DPS determinations: (1) The population must be
discrete in relation to the remainder of the taxon (species or
subspecies) to which it belongs; and (2) the population must be
significant to the remainder of the taxon to which it belongs.
A population segment of a vertebrate species may be considered
discrete if it satisfies either one of the following conditions: (1)
``It is markedly separated from other populations of the same taxon as
a consequence of physical, physiological, ecological, or behavioral
factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation; or
(2) ``it is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D)'' of the ESA.
If a population segment is found to be discrete under one or both
of the above conditions, its biological and ecological significance to
the taxon to which it belongs is evaluated. This consideration may
include, but is not limited to: (1) ``persistence of the discrete
population segment in an ecological setting unusual or unique for the
taxon; (2) evidence that the loss of the discrete population segment
would result in a significant gap in the range of a taxon; (3) evidence
that the discrete population segment represents the only surviving
natural occurrence of a taxon that may be more abundant elsewhere as an
introduced population outside its historic range; and (4) evidence that
the discrete population segment differs markedly from other populations
of the species in its genetic characteristics.
The WEG petition requested that porbeagle sharks throughout their
entire range, or proposed Northwest Atlantic, Northeast Atlantic, and
Mediterranean DPSs, be listed under the ESA. The petitioner states
``the species and DPSs face threats from historic and continued
overfishing, as well as a low reproduction rate, which hinders its
recovery.'' The information contained in the WEG petition focuses on
historical and continued overfishing of DPSs of porbeagle sharks
globally. The HSUS petition only addresses a Northwest Atlantic DPS of
porbeagle sharks. As such, we first reviewed whether either petition
presented information indicating that the global porbeagle shark
species consists of one or multiple DPSs, and then, assessed whether
available information indicated that the petitioned actions may be
warranted.
We evaluated whether the information provided or cited in the
petition met the ESA's standard for ``substantial information.'' We
reviewed information that is readily available in our files, and
consulted shark experts from NMFS' Highly Migratory Species (HMS)
Management Division, Northeast Fisheries Science Center- Apex Predator
Program, and the Southeast Fisheries Science Center to determine if the
information readily available in our files indicates that the
petitioned actions may be warranted, and if the available information
supports the identification
[[Page 39658]]
of any DPS(s) for this species. In 2009, the International Council for
the Exploration of the Sea (ICES) and the International Commission for
the Conservation of Atlantic Tunas (ICCAT) conducted a stock assessment
for porbeagle sharks - Report of the 2009 Porbeagle Stock Assessments
Meeting (ICES/ICCAT, 2009). The HSUS petition references information
from this report. In this finding, we heavily relied on the information
from this report, as it was readily available in our files prior to
receiving the petitions, it is referenced within the HSUS petition, and
it is the most recent compilation of porbeagle shark data available.
In the following sections, we use the information presented in the
petitions and in our files to: (1) describe the distribution of the
porbeagle shark; (2) determine whether porbeagle shark populations may
meet the criteria for being identified as DPSs; (3) evaluate whether
the porbeagle shark or DPSs proposed by the petitioners are at
abundance levels that would lead a reasonable person to conclude that
listing under the ESA may be warranted; (4) evaluate whether any of the
factors listed under section 4(a)(1) of the ESA may present threats to
the existence of the species or DPSs proposed by the petitioners. We
include conclusion subsections within each section, and our final
conclusion regarding these petitions is under the Petition Finding
section.
Porbeagle Shark Distribution and Analysis of DPS Information
Porbeagle sharks are found in the North Atlantic Ocean in the
following locations: the Northeast coast of the United States.;
Newfoundland Banks; Iceland; Barents, Baltic and North Seas; coast of
western Europe; and the Mediterranean Sea. In the southern hemisphere,
they are distributed in a circumglobal band of temperate waters in the
southern Atlantic, southern Indian, southern Pacific, and Antarctic
Oceans. The porbeagle prefers colder water, and it appears that they do
not occur in equatorial waters; however, recent evidence from pop-up
archival tags has revealed that mature female porbeagle sharks migrate
to a subtropical pupping ground in the Sargasso Sea in winter (Campana
et al., 2010).
In its petition, HSUS states that ``the Northwest Atlantic
porbeagle population is distinct' because it is ``markedly separated
from other populations'' due to ``physical [and] behavioral factors,''
as evidenced by ``genetic..discontinuity.'' The WEG petition suggests
that the ``Northwest Atlantic, Northeast Atlantic, and Mediterranean
populations of the porbeagle shark qualify as DPSs under the ESA.'' The
petitioners cite Kohler et al. (2002), COSEWIC (2004), Stevens et al.
(2006), and NMFS (2010) in support of their conclusion about the
existence of Northeast and/or Northwest Atlantic DPSs. Based on the
best available information, there is conflicting scientific evidence
regarding whether DPSs of porbeagle sharks exist. As indicated in the
HSUS petition, most tagging data indicate porbeagle sharks are highly
migratory, but remain within the range of the particular stock; thus,
there is little exchange between the geographically dispersed
populations in the Northeast and Northwest Atlantic (Stevens et al.,
2006; COSEWIC, 2004). As noted in the HSUS petition, a single
transatlantic migration has been recorded; however, conventional
tagging data (approximately 200 recaptures from three separate studies)
and recent satellite tagging data indicate that transatlantic
migrations are very limited (ICES/ICCAT, 2009). While the tagging data
indicate that there is little movement between populations in the North
Atlantic, which could lead to limited genetic exchange, mitochondrial
DNA studies which were readily available in our files indicate that
there is no differentiation among the stocks within the North Atlantic
(Pade et al., 2006; Testerman et al., 2007). Genetic studies did,
however, show marked differences in haplotype frequencies between the
northern and southern hemispheres, which support the contention that
there is restricted gene flow between the North and South Atlantic
populations (ICES/ICCAT, 2009; Pade et al., 2006; Testerman et al.,
2007). Based upon the available information, ICES/ICCAT (2009)
determined, for management purposes, that porbeagle sharks consist of
four separate stocks - the Northwest Atlantic, Northeast Atlantic,
Southwest Atlantic, and Southeast Atlantic. However, fishery management
units are not the equivalent of DPSs unless they also meet the criteria
for identifying a DPS.
Conclusion
Given the conflicting evidence from the tagging and genetic data,
without a more thorough analysis it is unclear as to whether porbeagle
shark DPSs exist. As cited in the HSUS petition and noted above, the
ICES/ICCAT porbeagle stock assessment (2009) separates the North
Atlantic porbeagle population into two stocks, the Northwest (NW) and
Northeast (NE) Atlantic stocks. The NW Atlantic stock includes
porbeagles from the waters on and adjacent to the continental shelf of
North America, and the NE Atlantic stock includes porbeagles from the
waters in and adjacent to the Barents Sea, south to northwest Africa
(ICES/ICCAT, 2009). Current information is insufficient to conclude
whether fish from the Mediterranean represent a discrete population and
should be considered separate from the NE stock. As such, NMFS
considers the NE Atlantic stock to include the Mediterranean Sea. ICES/
ICCAT (2009) also divides porbeagle in the South Atlantic into two
separate stocks - the Southwest and Southeast. As mentioned above,
however, fishery management units are not the equivalent of DPSs unless
they also meet the criteria for identifying a DPS. The petitioners have
not presented substantial information indicating that these populations
meet the criteria for being identified as DPSs under the ESA.
However, in order to be thorough and ensure that each petitioned
action is fully evaluated to determine if it may be warranted, we
considered whether the petitioners presented substantial evidence
indicating that the petitioned action for the full species or for the
DPSs as proposed by WEG and HSUS may be warranted.
Abundance
NW Atlantic
In 2005, the NW Atlantic population size was estimated to vary from
188,000 to 195,000 fish (DFO, 2005). Based on the model estimates in
2005, the population was estimated to be 12 to 24 percent of what it
had been in 1961. The ICES/ICCAT stock assessment working group ran
several different models using the data that was used by DFO in 2005.
The Bayesian Surplus Production (BSP) model estimated current (2005)
biomass to be 66 percent of the 1961 biomass, compared to the age-
structured model results presented above (ICES/ICCAT, 2009). The BSP
model with equal weighting provided results that were more similar to
the age-structured model, estimating current biomass at 37 percent of
1961 biomass. The BSP model with equal weighting predicted that the NW
Atlantic stock would recover to sustainable biomass (BMSY) levels in
approximately 20 years with no fishing (ICES/ICCAT, 2009). The working
group also ran the BSP model again using data through 2009 and derived
similar results; however, they noted the model indicated a low current
fishing mortality rate relative to maximum sustainable yield (FMSY)
because of low catches in 2008 (ICES/ICCAT, 2009). A forward projecting
age- and sex- based model was also used by
[[Page 39659]]
the working group. This model estimated the total population size in
2009 to be approximately 22 to 27 percent of its size in 1961 and about
95 to 103 percent its size in 2001 (ICES/ICCAT, 2009). With this model,
they also estimated the number of mature females in 2009 to range from
11,000 to 14,000 individuals, or 12 to 16 percent of its 1961 level and
83 to 103 percent of its 2001 value (ICES/ICCAT, 2009). Based on the
results of this most recent modeling effort, the working group
concluded that the NW Atlantic stock biomass is depleted below BMSY,
recent fishing mortality is below FMSY, and recent biomass appears to
be increasing (ICES/ICCAT, 2009).
NE Atlantic
According to ICES/ICCAT (2009), the NE Atlantic stock has the
longest history of commercial exploitation; however, the lack of catch
per unit effort (CPUE) data derived during the peak of the fishery
makes it difficult to estimate current status relative to virgin
biomass. The working group determined that this stock is depleted and
that recent fishing mortality rates were either near or above
sustainable levels (ICES/ICCAT, 2009). Based on their modeling efforts,
the working group concluded that current management efforts are likely
to result in the stock remaining fairly stable (ICES/ICCAT, 2009).
SW Atlantic
The working group concluded that the data for the southern
hemisphere porbeagle stock are too limited to provide a robust
indication on the status of this stock (ICES/ICCAT, 2009). They noted
that the data that are available indicate a decline in CPUE in the
Uruguayan fleet, suggesting a potential decline in porbeagle abundance
in the SW Atlantic to levels below MSY (ICES/ICCAT, 2009). They
conducted a similar modeling effort and noted that depletion levels are
below MSY and fishing mortality rates are above those producing MSY;
however, they also indicated that catch and other data are generally
too limited to allow definition of sustainable harvest levels (ICES/
ICCAT, 2009).
SE Atlantic
According to ICES/ICCAT (2009), information and data for porbeagle
in the SE Atlantic are too limited to assess their status. The working
group did note that available catch rate patterns suggest that this
stock has stabilized since the early 1990s (ICES/ICCAT, 2009).
The abundance information in the petition and in our files does not
indicate that listing the full species of porbeagle or any of the DPSs
proposed by WEG or HSUS as threatened or endangered may be warranted.
Present or Threatened Destruction, Modification or Curtailment of
Habitat or Range
The HSUS petition asserts that ``[P]resent or threatened
destruction, modification, of porbeagle habitat is negatively affecting
the species,'' and provides references suggesting that coastal
pollution, global climate change, and ocean temperatures and
acidification could potentially have adverse effects on NW Atlantic
porbeagle sharks. For coastal pollution, bioaccumulated contaminants
are suggested as a concern to porbeagle fitness, as sharks are high on
the trophic level. Available information does not indicate that the
fitness of the NW Atlantic porbeagle stock is impacted by mercury or
other bioaccumulated contaminants. The National Shark Research
Consortium (NSRC) conducted studies from 2002-2007 that focused on
essential fish habitat (EFH) and the effects of environmental
pollutants on the reproduction, growth, and maturation of sharks along
the eastern U.S. coast. NSRC submitted a five-year technical report to
NOAA/NMFS (NSRC, 2007), which was readily available in our files before
the petitions were received. NSRC (2007) found that although coastal
and estuarine U.S. Atlantic sharks were exposed to polychlorinated bi-
phenyls (PCB), the concentrations of PCB congeners showed that the more
harmful, highly toxic congeners only accounted for 0.7 to 4 percent of
the total PCB load, indicating that effects from these contaminants did
not pose a significant threat. In addition, they determined that it was
unlikely that infertility rates were associated with exposure to
contaminants like organochlorine pesticides (OCP) and PCBs (NSRC,
2007). Although no studies have focused specifically on NW Atlantic
porbeagle sharks, no information is presented to indicate that
porbeagle sharks, as DPSs or as a single species, are currently at
greater risk of being impacted by coastal pollution than other
sympatric shark species.
HSUS also asserts that due to global climate change, the
distribution of prey resources and competitors for these resources may
change, which would limit the potential for porbeagles to recover. In
addition, they stress that while there is no available information
indicating a change in porbeagle distribution, ocean temperatures have
increased by 0.1 degrees Celsius (C). Porbeagle sharks are
opportunistic feeders, taking advantage of available prey (Campana and
Joyce, 2004). They thermoregulate and have adapted to be able to hunt
in colder waters but are commonly found in temperatures ranging from 2
to 23 degrees C (32 to 59 degrees Fahrenheit) (Campana and Joyce,
2004). As they are adapted to a fairly wide temperature range and are
opportunistic feeders, available information does not indicate that a
change in temperature of 0.1 degrees C would have a significant impact
on porbeagle sharks. Furthermore, there is no information available
that indicates there has been any change in the distribution of
porbeagle sharks as a result of climate change, or that porbeagles are
not adapting to potential changes in distributions of prey species.
Ocean acidification is posed as an additional threat to habitat or
the range of porbeagle sharks by HSUS. HSUS states that ``[T]he ongoing
increase in ocean acidification poses an additional threat to the
health of the populations of a number of marine species, porbeagle
sharks among them,'' specifically pointing out hypercapnia, an increase
in the amount of carbon dioxide in the tissues (Fabry et al., 2008). As
noted in the HSUS petition, Fabry et al. (2008) indicates that
increases in carbon dioxide (CO2) have the potential to affect pH
levels in marine organisms; however, they state that active animals
have a higher capacity for buffering pH changes, and that the tolerance
of CO2 by marine fish appears to be very high. Porbeagle sharks are an
active, highly migratory species, and active animals have a higher
capacity for buffering pH changes; therefore, they may have the ability
to tolerate changes in CO2 and buffer pH changes (Compagno, 2001; Fabry
et al., 2008). Ocean acidification, therefore, does not appear to pose
a significant risk to porbeagle sharks throughout the taxon's range or
within separate DPSs.
Conclusion
Porbeagle sharks are a highly migratory species capable of
thermoregulation and with the ability to feed opportunistically.
Although coastal pollution, global climate change, and ocean
temperatures and acidification were posed by HSUS as adversely
affecting NW Atlantic porbeagle sharks, current information does not
indicate that these factors are currently having significant impacts on
porbeagle sharks or will in the foreseeable future; information was not
presented on how these factors might affect populations in the NE
Atlantic, SW Atlantic, or SE Atlantic. While we have concluded that
[[Page 39660]]
the petitions do not present substantial information indicating that
the petitioned actions of listing the full porbeagle shark species or
any of the DPSs proposed by WEG or HSUS under the ESA due to present or
threatened destruction, modification, or curtailment of habitat or
range may be warranted at this time.
Overutilization for Commercial, Recreational, Scientific or Education
Purposes
The petitioners claim that overutilization of porbeagle shark for
commercial and recreational purposes in the form of historical and
continued overfishing requires that the species be listed under the
ESA. Porbeagle sharks are currently managed by the Division of
Fisheries and Oceans (DFO) in Canada, NMFS in the United States, the
European Union (EU) in Europe, with ICES and ICCAT working
collaboratively to perform stock assessments and make recommendations
for management actions specific to porbeagles.
As indicated previously, ICES/ICCAT (2009) presented information on
porbeagle stocks in the NW, NE, SW, and SE Atlantic. Although the
stocks are depleted, available information indicates that the stocks
are stable or increasing in size (ICES/ICCAT, 2009). Potential declines
were suggested for the SW Atlantic stock; however, it was determined
that data are too limited to indicate a trend (ICES/ICCAT, 2009). For
all the stocks, it was determined that although catches on the high
seas did occur, they occurred at low levels (ICES/ICCAT, 2009);
therefore, bycatch and directed catch on the high seas is not a
significant threat to the species. Furthermore, bycatch of porbeagle
within the ICES and NAFO fisheries of Spain were very rare, and bycatch
of porbeagle in the North and South Atlantic in swordfish (Xiphias
gladius) fisheries by Spanish longliners was very low (ICES/ICCAT,
2009).
In the Northwest Atlantic, NMFS has set a total allowable catch
(TAC) for porbeagles at 11.3 metric tons (mt) dressed weight (dw), and
a commercial quota of 1.7 mt dw (50 CFR 635). The TAC is the total
amount of a species that is allowed to be caught by all resource users
over a particular period of time (e.g., year/fishing season). The
commercial quota is the amount of the TAC allocated to fishermen issued
a Federal limited access shark permit; however, all fishing for that
species ceases when the commercial quota is reached. It has been
determined that porbeagle sharks in the NW Atlantic are overfished and
biomass has been depleted; however, biomass is currently increasing,
and overfishing is no longer occurring (NMFS/HMS, 2009; ICES/ICCAT,
2009).
According to CITES (2010), Canadian catch data indicate that
commercial porbeagle landings have progressively decreased from a peak
in 1995 of 1400 tons (t) to 92t in 2007, corresponding with decreasing
TAC levels (cited from Campana and Gibson, 2008). The TAC for porbeagle
shark in Canada has been decreased from 250t to 185t; of this amount,
125t is the quota for the directed commercial shark fishery in the
Maritimes Region; 10t is the quota for the directed commercial fishery
in the Gulf and Quebec Regions combined; and the remaining 50t quota is
reserved to account for bycatch of porbeagle shark in other fisheries
(DFO, 2009). Mating grounds for the species have also been closed in
Canada to directed fisheries. CITES (2010) states that population
projections indicate that the population will eventually recover if
harvest rates are kept under 4 percent (approximately, 185t, as cited
in DFO 2005b). Canadian landings have been below the TAC the last
several years, and ICES/ICCAT (2009) indicates that the NW Atlantic
stock is increasing. Thus, reduced commercial landings in both the
United States and Canada appear to be having a positive impact on the
stock, and the stock is expected to continue to recover under the
management measures in place in both countries.
According to a draft CITES proposal that was readily available in
our files prior to receiving the petitions, catch of porbeagles in
recreational fisheries is considered to be extremely low in Canada and
the United States (CITES, 2009). Recreational fisheries for sharks in
the United States are limited to rod, reel, and handline gear (50 CFR
part 635). In addition, according to NMFS/HMS (2009), between 2000 and
2008, only 40 porbeagle sharks were observed in the rod and reel
fishery, and out of that total, only 4 were kept and 36 were released
alive.
The HSUS notes that it feels NMFS underestimates the number of
porbeagle sharks caught and discarded as a result of recreational
fisheries. It also notes discrepancies between Tables 3.24 and 3.26 in
Amendment 2 of the HMS Fishery Management Plan (FMP) (NMFS/HMS, 2008).
Table 3.24 is a compilation of recreational fisheries data from the
Marine Recreational Fisheries Statistics Survey (MRFSS), showing
expanded MRFSS survey estimates, while table 3.26 shows raw, unexpanded
numbers of fish from the large pelagic survey (LPS). Offshore fishing
trips targeting pelagic sharks typically make up a relatively small
proportion of all recreational fishing trips. As a result of the ``rare
event'' nature of these trips, generalized angler surveys, such as the
MRFSS, aimed at estimating catch and effort for all species do not
produce very precise estimates for many shark species. In addition to
low precision, shark catch estimates derived from MRFSS may suffer from
biases associated with sampling under-coverage of shark tournaments,
since MRFSS interviews are not conducted at tournament sites.
Specialized surveys are often needed to achieve the desired level of
statistical precision. For example, the NMFS LPS was specifically
designed to collect information on recreational fishing directed at
highly migratory species (e.g., tunas, billfishes, swordfish, and
sharks). Also, unlike the MRFSS, LPS dockside interviews are conducted
at HMS tournaments. This specialization has allowed the higher levels
of sampling needed to provide more precise landings estimates of
pelagic sharks such as shortfin mako, common thresher, and blue sharks
from Maine through Virginia. However, for shark species less commonly
encountered by recreational anglers, including porbeagle, even a
specialized survey such as the LPS cannot produce precise landings
estimates. A mandatory census approach that accounts for every fish
landed (both during and outside of tournaments) would be needed instead
of a survey if precision is desired on the small recreational landings
of these extremely rare event species. Despite the identified
shortcomings associated with the numbers presented in Tables 3.24 and
3.26, these numbers still represent the best available data on
recreational fishing catch for porbeagle sharks. The fact that only 2
landed fish were observed and only 20 were reported as released alive
during 18,626 LPS dockside interviews conducted from 2005 through 2009
suggests that porbeagles are very rarely encountered by recreational
anglers from Virginia through Maine.
Results for the NE Atlantic stock indicate that the stock is
depleted but is projected to remain stable under the TAC of 436 tons
(t) (ICES/ICCAT, 2009). Furthermore, ICES/ICCAT (2009) determined that
reductions in fishing mortality would allow the population to rebuild.
The TAC of 436t referred to in ICES/ICCAT (2009) is no longer
applicable as new regulations setting the TAC at zero in domestic
waters and prohibiting EU vessels from fishing for, retaining on board
ships, trans-shipping
[[Page 39661]]
(e.g., transferring from one ship to another), and landing porbeagle
sharks in international waters were implemented by the European Union
(EU) on January 14, 2010 (EU, 2010).
Although information on the southern hemisphere stocks is limited,
data for the SE Atlantic suggest, through catch rate patterns, that the
stock has stabilized; however, ICES/ICCAT (2009) determined that the
data are too limited to adequately assess their status at this time. In
addition, the SW data suggest a potential decline has been observed
through the CPUE reported for the Uruguayan fishing fleet, but the data
are too limited to adequately assess their current status (ICES/ICCAT,
2009). Camhi et al. (2009), as referenced by HSUS, reports that
porbeagle fins are neither highly valued, nor a significant portion of
the Hong Kong shark fin trade.
Conclusion
Although the petitioners claim that overutilization of porbeagle
sharks for commercial and recreational purposes in the form of
historical and continued overfishing requires that the species be
listed under the ESA, available information indicates that porbeagle
shark population trends are stable or increasing globally, and that
protections for the species are increasing in these areas as well;
therefore, the petitions do not present substantial information
indicating that the petitioned actions of listing the full porbeagle
shark species or DPSs proposed by WEG or HSUS under the ESA due to
historical and current overutilization may be warranted at this time.
Predation and Disease
The petitions assert that disease or predation are not likely a
threat to this species. As indicated in the petitions, porbeagle sharks
are an apex predator, and other than possible predation by white sharks
and orcas, humans are likely to be the only significant predator
(CITES, 2007). The petitions also state that studies have shown some
incidence of cancer in sharks, although actual rates of cancer in
sharks have not been determined, and evidence of cancer in porbeagles
is limited (National Geographic, 2003).
Conclusion
Available information on disease and predation on porbeagles is
limited; however, available information indicates that it is not likely
that these factors pose a significant threat to the species; therefore,
the petitions do not present substantial information indicating that
the petitioned actions of listing the full porbeagle shark species or
DPSs proposed by WEG or HSUS under the ESA due to disease or predation
may be warranted at this time.
Inadequacy of Existing Regulatory Mechanisms
The petitions assert that inadequacy of existing regulatory
mechanisms requires that the porbeagle shark be listed under the ESA.
As indicated by WEG, porbeagles are a species of concern (SOC), and SOC
status does not carry any protections under the ESA. The WEG petition
states that ``the species therefore lacks Federal protection in the
U.S.'' The Magnuson-Stevens Fishery Conservation and Management Act
(MSA) regulates fisheries in Federal waters in the United States, and
states generally have authority within state waters. Generally,
Regional Fishery Management Councils construct FMPs for each fishery
under their jurisdiction, and these plans are designed to allow
fisheries to thrive while preventing overfishing. FMPs are implemented
by NMFS. Because porbeagle sharks are considered to be a highly
migratory species, as defined under the MSA, NMFS, as delegated by the
Secretary of Commerce, and not the Regional Fishery Management
Councils, manages the species. As such, the porbeagle shark is included
in the 2006 Consolidated HMS FMP. The 2006 Consolidated HMS FMP
regulates fishing for highly migratory species in Federal waters by
measures such as quotas, permit requirements, retention limits, time/
area closures, prohibited species, observer coverage, and fishermen and
dealer reporting. The FMP also requires that all sharks be landed with
all fins naturally attached. Porbeagle sharks are an authorized
species, and the Federal commercial fishery for porbeagle sharks is
regulated by a base commercial quota of 1.7 mt dw per year. This quota
can only be harvested by fishermen who possess a Federal limited access
shark permit when the fishing season, as announced by NMFS, is open. In
other words, porbeagle sharks are managed through the MSA by the 2006
Consolidated HMS FMP, and regulations are implemented and enforced by
NMFS; therefore, porbeagle sharks do not lack Federal protection in the
United States.
HSUS states that despite NMFS management, porbeagle sharks are
continuing to decline in the Northwest Atlantic, and thus, protections
are inadequate. The most recent stock assessment report for porbeagle
sharks reports that although biomass is depleted, trends indicate that
it is currently increasing (ICES/ICCAT, 2009). NMFS' regulatory
mechanisms for porbeagle sharks are a factor in allowing biomass to
increase by preventing overfishing; therefore, NMFS regulatory measures
are adequate.
ICES/ICCAT (2009) note that in Canada and internationally,
management efforts and regulations that benefit porbeagle sharks are
increasing. Canada has implemented closures of porbeagle shark mating
grounds to targeted fisheries, and also lowered the TAC to 185t from a
maximum sustainable yield (MSY) of 250t (ICES/ICCAT, 2009).
Furthermore, ICES/ICCAT (2009) considers Canada's harvest regime of
porbeagle sharks in Canada's Exclusive Economic Zone (EEZ) to be
conservative.
Conclusion
Although the petitioners claim that inadequacy of existing
regulatory mechanisms warrants that the porbeagle shark be listed under
the ESA, the petitions do not present substantial information
indicating that the petitioned actions either for DPSs proposed by WEG
or HSUS or the full species may be warranted. When considering new and
existing U.S., Canadian, and EU regulations and fisheries management
mechanisms, and taking into account the most recent stock assessment by
ICES/ICCAT (2009) which indicates that stocks have stabilized or
increased, it is reasonable to conclude that the existing regulatory
mechanisms are adequately protecting porbeagle sharks; therefore, the
petitioned actions do not appear to be warranted at this time.
Other Natural or Manmade Factors Affecting Its Existence
The petitions contend that ``biological vulnerability,'' in the
form of low productivity, isolated populations, and low population
density, is a natural factor that is affecting the continued existence
of porbeagle sharks. As stated earlier, ICES/ICCAT (2009) determined
that the stocks were generally stable or increasing in biomass. Genetic
studies indicate that there is no differentiation between the North
Atlantic stocks, which indicates that there is the potential for some
mixing in the North Atlantic; therefore, the threat of isolated
populations does not appear to be a factor for this HMS in the northern
hemisphere (Pade et al., 2006; Testerman et al., 2007). Available
information for the southern hemisphere indicates that the distribution
of porbeagle sharks in the South Atlantic appears to be continuous
around the tips of South America and southern Africa, and although
genetic
[[Page 39662]]
data are lacking, the porbeagle sharks in the southern hemisphere do
not appear to be isolated (ICES/ICCAT, 2009). Considering the highly
migratory nature of this species, isolation does not appear to be a
factor for decline. Low productivity is an aspect of the species' life
history that has the potential to make the species more vulnerable to
specific threats; however, this trait along with all other life history
parameters is evaluated and addressed in management and conservation
actions. As indicated by literature cited in the HSUS petition, female
porbeagle sharks mature at approximately 13 years and males at 8 years
in the Northwest Atlantic Ocean (Campana and Gibson, 2005; Campana et
al., 2003; Natanson et al., 2001). They produce an average litter size
ranging from two to six pups, and reproduce annually (Jensen et al.,
2002; Gibson and Campana, 2005). A recent Ecological Risk Assessment
for Atlantic pelagic sharks found that porbeagle sharks ranked among
the less vulnerable species in terms of their biological productivity
and susceptibility to pelagic longline fisheries (Cortes et al., 2010).
Available information is insufficient to indicate that there has been
any decrease in productivity of porbeagle sharks.
Conclusion
Although the petitions contend that ``biological vulnerability'' is
a natural factor that is affecting the continued existence of porbeagle
sharks, available information does not indicate that these factors pose
a significant threat to the species. It does not appear that porbeagle
populations are isolated, and the most recent stock assessment reports
that biomass is either stable or increasing. In addition, available
information does not indicate that there has been any decrease in
porbeagle shark productivity. While much of the life history
information presented is specific to Northwest Atlantic population, it
is reasonable to assume that life history parameters for other
porbeagle shark populations are similar to those of the Northwest
Atlantic population. Therefore, the petitions do not present
substantial information indicating that the petitioned actions for
either DPSs proposed by WEG or HSUS or the full species may be
warranted at this time.
Petition Finding
After reviewing the information contained in the petitions, as well
as information readily available in our files, we have determined that
the petitions do not present substantial scientific or commercial
information indicating that the petitioned actions may be warranted.
While the petitions assert that porbeagle sharks have suffered
disastrous declines and that they are continuing to decline, we do not
believe that the information presented in the petitions is substantial.
This finding is supported by information contained within the ICES/
ICCAT Stock Assessment Report (2009), which indicates increases in
biomass in some stocks and stability in others. As stated previously,
the United States has managed porbeagle shark through the HMS FMP since
2006. The Federal commercial fishery for porbeagle sharks is regulated
by a base commercial quota of 1.7 mt dw per year. This quota can be
harvested only by fishermen who possess a Federal limited access shark
permit when the fishing season, as announced by NMFS, is open. In
addition, Canada and the EU are increasing protections for porbeagle
sharks internationally. Increasing numbers and stability in these
stocks, coupled with new and continuing national and international
management efforts, also support our conclusion that the petition does
not present substantial information indicating that the petitioned
actions may be warranted. If new information becomes available to
suggest that porbeagle sharks may, in fact, warrant listing under the
ESA, we will reconsider conducting a status review of the species.
Authority: 16 U.S.C. 1531 et seq.
Dated: July 7, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2010-16933 Filed 7-9-10; 8:45 am]
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