[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]
BILLING CODE 3510-22-S