[Federal Register Volume 78, Number 159 (Friday, August 16, 2013)]
[Notices]
[Pages 50032-50037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20026]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 130122061-3061-01]
RIN 0648-XC463


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Whale 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: Notice of 90-day petition finding.

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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list the 
whale shark (Rhincodon typus) as threatened or endangered under the 
Endangered Species Act (ESA). We find that the petition does not 
present substantial scientific or commercial information indicating 
that the petitioned action may be warranted.

ADDRESSES: Copies of the petition and related materials are available 
upon request from the Director, Office of Protected Resources, 1315 
East West Highway, Silver Spring, MD 20910, or online at: http://www.nmfs.noaa.gov/pr/species/negative.htm.

FOR FURTHER INFORMATION CONTACT: Lisa Manning, Office of Protected 
Resources, 301-427-8466.

SUPPLEMENTARY INFORMATION:

Background

    On December 21, 2012, we received a petition from the WildEarth 
Guardians to list the whale shark (Rhincodon typus) as threatened or 
endangered under the ESA and to designate critical habitat under the 
ESA. Copies of this petition are available from us (see ADDRESSES).
    Section 4(b)(3)(A) of the ESA of 1973, as amended (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 
the 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, which includes conducting a 
comprehensive review of the best available scientific and commercial 
information. Within 12 months of receiving the petition, we must 
conclude the review with a finding as to whether, in fact, the 
petitioned action is warranted. Because the finding at the 12-month 
stage is based on a significantly more thorough review of the available 
information, a ``may be warranted'' finding at the 90-day stage does 
not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife 
Service (USFWS) policy clarifies the agencies' interpretation of the 
phrase ``distinct population segment'' for the purposes of listing, 
delisting, and reclassifying a species under the ESA (``DPS Policy''; 
61 FR 4722; February 7, 1996). A species, subspecies, or DPS is 
``endangered'' if it is in danger of extinction throughout all or a 
significant portion of its range, and ``threatened'' if it is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range (ESA sections 3(6) and 3(20), 
respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our 
implementing regulations, the determination of whether a species is 
threatened or endangered shall be based on any one or a combination of 
the following five section 4(a)(1) factors: The present or threatened 
destruction, modification, or curtailment of habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; inadequacy of existing 
regulatory mechanisms; and any other natural or manmade factors 
affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. When 
evaluating whether substantial information is contained in a petition, 
we must consider whether the petition: (1) Clearly indicates the 
administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    At the 90-day stage, we evaluate the petitioner's request based 
upon the information in the petition including its references, and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioner's 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

[[Page 50033]]

the petition's information is incorrect, unreliable, obsolete, or 
otherwise irrelevant to the requested action. Information that is 
susceptible to more than one interpretation or that is contradicted by 
other available information will not be dismissed at the 90-day finding 
stage, so long as it is reliable and a reasonable person would conclude 
that it supports the petitioner's assertions. Conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information alone negates a positive 90-day 
finding, if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species at issue faces extinction risk that is cause for concern; this 
may be indicated in information expressly discussing the species' 
status and trends, or in information describing impacts and threats to 
the species. We evaluate any information on specific demographic 
factors pertinent to evaluating extinction risk for the species at 
issue (e.g., population abundance and trends, productivity, spatial 
structure, age structure, sex ratio, diversity, current and historical 
range, habitat integrity or fragmentation), and the potential 
contribution of identified demographic risks to extinction risk for the 
species. We then evaluate the potential links between these demographic 
risks and the causative impacts and threats identified in section 
4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but such classification alone may 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source of information that the 
classification is based upon in light of the standards on extinction 
risk and impacts or threats discussed above.

Whale Shark Species Description

    The whale shark is the world's largest fish and is one of three 
large species of filter-feeding sharks; the others being the basking 
shark (Cetorhinus maximus) and the megamouth (Megachasma pelagios) 
shark. Among the whale shark's distinctive features are its large, 
first dorsal fin; large pectoral fins; and an extremely large, 
transverse mouth near the front end of the head. Also distinctive is 
the checkerboard pattern of white or yellowish spots and horizontal and 
vertical stripes over much of its body. Maximum size is not known. The 
largest reported whale shark was 20 meters (m) total length (TL), but 
reports of specimens longer than 12 m are uncommon in the literature 
(Compagno, 2002; Rowat and Brooks, 2012). Longevity is also unknown but 
has been tentatively suggested to be 60-100 years (Pauly et al., 2000; 
as cited in Norman, 2005).
    Whale sharks feed on a variety of planktonic and nektonic organisms 
(e.g., copepods, sardines, anchovies, squid) and gametes. Stable-
isotope analysis of whale shark muscle tissue suggests that as whale 
sharks grow, consumption of small fish and larger zooplankton of higher 
trophic levels increases (Borrell et al., 2010). Seasonal feeding 
aggregations of whale sharks occur in many locations throughout the 
range (e.g., Belize, Tanzania, Seychelles, Western Australia) in 
association with localized increases in prey availability such as 
during fish, crab or coral spawning events or plankton blooms (Colman, 
1997; Roberts and Graham, 2003; Sequeira et al., 2013). Whale sharks 
are fairly versatile in terms of their feeding methods, which can be 
one of multiple forms: Ram, or active, filter feeding at the water 
surface; stationary suction feeding; and passive, sub-surface filter 
feeding (Motta et al., 2010).
    Growth and reproduction are poorly described for this species. 
Basic characteristics, like gestation length, age at maturity, and 
frequency of reproduction, are not yet known. Growth rates calculated 
for captive whale sharks range from about 22 to 240 centimeters (cm) 
per year and vary with initial size and sex of the shark (Rowat and 
Brooks, 2012). Growth rate estimates for wild whale sharks are highly 
variable (e.g., 3-82 cm per year) and are confounded by large 
associated errors (Rowat and Brooks, 2012). Male whale sharks are 
thought to reach sexual maturity around 7-9 m TL, and females are 
thought to reach maturity at about 9 m TL or larger (Ram[iacute]rez-
Mac[iacute]as et al., 2012; Rowat and Brooks, 2012). Using assumed 
growth rates and maximum lengths, the age at maturity has been roughly 
estimated at 8.9 years and 21.4 years by different authors (reviewed in 
Rowat and Brooks, 2012). Whale sharks are ovoviviparous--meaning the 
egg cases hatch in utero, and females give birth to live young. Whale 
sharks are also considered to be highly fecund based on the capture of 
a pregnant female off the coast of Taiwan in 1995 that contained over 
300 embryos, which greatly exceeds the number of embryos reported for 
any other shark species (Joung et al., 1996). Observations of pregnant 
or large females are rare, but they have been reported to occur in the 
southern Sea of Cortez, Mexico; the Galapagos; and the Philippines 
(Rowat and Brooks, 2012). A total of only 19 small juveniles (less than 
1.5 m TL) have been reported in the literature, and available data 
suggest that size at birth may vary considerably (Rowat and Brooks, 
2012). Small, free-living whale sharks (55 to 59 cm TL) have been found 
off tropical West Africa in the East-Central Atlantic and near Central 
America in the eastern Pacific, near continental waters and in the open 
ocean far from land (Wolfson, 1983;

[[Page 50034]]

Kukuyev, 1996; as cited in Compagno, 2002), suggesting that young may 
be born in the ocean and that pupping and possibly nursery habitat 
exist there (Compagno, 2002).
    Whale sharks are circumglobal and occur in all tropical and warm-
temperate seas (Rowat and Brooks, 2012). Although generally occurring 
far offshore, whale sharks are also found in more shallow, coastal 
waters. Whale sharks are typically encountered near the surface and are 
characterized as epipelagic, but tagging studies reveal they can also 
dive to mesopelagic (200-1,000 m) and even bathypelagic depths (>1,000 
m; Rowat and Brooks, 2012). Satellite telemetry data show that while 
some whale sharks may remain for relatively long periods of time within 
a given oceanic region, they are also highly migratory and capable of 
traveling 1,000s of kilometers (km) in several months (Sequeira et al., 
2013). Mean movement distances of whale sharks tagged in two separate 
studies, one conducted in the Sea of Cortez (Mexico) and one in the 
Sulu Sea (Malaysia), were very similar--24 km and 24.7 km per day, 
respectively (Eckert et al., 2002; Eckert and Stewart, 2001).
    Specific habitat requirements of whale sharks are not yet fully 
understood; however, efforts have been made to elucidate what 
environmental features drive whale shark migrations and habitat 
preferences. Episodic aggregations of whale sharks in warm, coastal 
habitats have been mainly linked to food blooms, sea surface 
temperature, and currents (Coleman, 1997; Sequeira et al., 2013). 
Wilson et al. (2001) examined the seasonal feeding aggregations at 
Ningaloo Reef, Western Australia, and found evidence suggesting a 
linkage between whale shark abundance and oceanographic processes, with 
greater abundances of whale sharks associated with La Ni[ntilde]a 
years. In terms of pelagic habitats, modeling efforts indicate that sea 
surface temperature is a main predictor of whale shark distribution in 
the open ocean (Sequeira et al., 2011). In one study, which modeled 
1,185 whale shark sightings from a 17- year time series, 90 percent of 
the whale shark sightings occurred within the fairly narrow temperature 
range of 26.5 to 30 degrees Celsius (Sequeira et al., 2011). Other 
factors such as distance to continental shelf edge, water depth, and 
chlorophyll a, have also been shown to have some correlation with whale 
sharks distribution (Sequeira et al., 2011; McKinney et al., 2012). 
Interestingly, surface currents do not appear to have a significant 
influence on migration. Sleeman et al. (2010) found that whale sharks 
tagged at Ningaloo Reef traveled actively and independently of surface 
currents despite the added energetic costs of doing so.

Analysis of the Petition

    The petition clearly indicates the administrative measure 
recommended and gives the scientific and any common name of the species 
involved. The petition also contains a narrative justification for the 
recommended measure and provides information on the species' taxonomy, 
geographic distribution and threats. Limited information is provided on 
past and present numbers, population status and trends. The petition is 
accompanied by internet articles, emails, Web sites, unpublished 
reports, Federal Register notices, and published literature. A synopsis 
of our analysis of the information provided in the petition and readily 
available in our files is provided below.

Distinct Population Segments

    The petition requests that we list whale sharks throughout their 
range or list any DPSs that we may find to exist. To meet the 
definition of a DPS, a population must be both discrete from other 
populations of the species and significant to the species as a whole 
(61 FR 4722; February 7, 1996). The petition does not suggest possible 
delineations of particular populations or provide information to 
identify particular DPSs of whale sharks. The petition does note, 
however: ``While it is entirely possible that there are subpopulations 
of whale sharks within each ocean or region, the relative scarcity of 
information on the species and its highly migratory nature make it 
difficult to know for sure whether such subpopulations exist.''
    Information in our files indicates there is low genetic 
differentiation among geographic whale shark populations and a history 
of gene flow among populations. One study, using mitochondrial DNA, 
found that the most common haplotype is globally distributed and that 
differentiation among the three major ocean basins is low, especially 
relative to other globally distributed shark species (Castro et al., 
2007). A second study, using nuclear DNA, also found low 
differentiation among whale sharks from geographically distinct 
populations (Schmidt et al., 2009). Data from both studies indicate 
significant gene flow among Indian and Pacific Ocean populations and a 
lower level of interaction with Atlantic populations (Castro et al., 
2007; Schmidt et al., 2009). Satellite tracking data show that whale 
sharks make frequent, regional and at least occasional, longer-range 
migrations, providing some behavioral evidence to support the genetic 
data (reviewed in Sequeira et al., 2013). A recent review article 
synthesizes the existing genetic, telemetry and sightings data and 
presents a conceptual model of whale sharks as a single, global meta-
population (Sequeira et al., 2013). These authors suggest that whale 
sharks can move among the three major ocean basins every 2-4 years, 
thereby connecting populations on a generational time-scale (Sequeira 
et al., 2013). Based on this information, we conclude that delineation 
of discrete populations and evaluation of the significance of those 
populations are not currently possible. Thus, in evaluating the 
petition, we considered the taxonomic species.

Whale Shark Status and Trends

    The petition states that population size is unknown for whale 
sharks but points to its ``vulnerable'' status on the IUCN 
(International Union for Conservation of Nature and Natural Resources) 
Red List and its Appendix II listing under CITES (the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora) as 
evidence of an imperiled status. The petition asserts that a global 
decline of whale sharks has been caused mainly by commercial fishing--
both direct harvest and bycatch--and points to the declines in whale 
shark landings that occurred during the late 1990's in Taiwan and the 
Philippines. Additional information on historical or present abundance 
or population trends is not presented in the petition.
    Both Taiwan and the Philippines have closed their whale shark 
fisheries, as have multiple, other range states (Rowat and Brooks, 
2012). The threat of commercial fishing is discussed in more detail 
below (see ``Overutilization'').
    According to Article II of CITES, species listed on Appendix II are 
those that are ``not necessarily now threatened with extinction but may 
become so unless trade in specimens of such species is subject to 
strict regulation in order to avoid utilization incompatible with their 
survival.'' The United States proposed to add whale sharks to Appendix 
II in 2000, and the species was ultimately added to that Appendix in 
2003. Based on the CITES definitions and standards for listing species 
on Appendix II, neither the proposal to add whale sharks to Appendix II 
in 2000, nor their actual listing on Appendix II in 2003, are 
themselves inherent indications that whale sharks may now

[[Page 50035]]

warrant threatened or endangered status under the ESA. Species 
classifications under CITES and the ESA are not equivalent, and 
criteria used to evaluate species are not the same. Thus, we instead 
consider the available information on the threat of international trade 
and, more specifically, commercial fishing. See ``Threats to Whale 
Sharks'' section below for further discussion.
    The last IUCN assessment of whale sharks was completed in 2005, and 
since then several estimates of global and subpopulation abundance have 
been made. Whale sharks are being studied in various locations across 
the range, and identification of larger aggregations of animals in 
previously unknown locations suggests that global abundance may be 
higher than previously thought (Schmidt et al., 2009). Perhaps most 
heavily studied have been the whale sharks of Ningaloo Reef, Western 
Australia, where the local population has been estimated at 
approximately 300-500 individuals (95 percent confidence interval (CI)) 
using closed population models and at 320-440 (95 percent CI) using 
open population models (Meekan et al, 2006). Using mark-recapture 
techniques and an open-population model, Ram[iacute]rez-Mac[iacute]as 
et al. (2012) estimated 521-802 (95 percent CI) whale sharks in the 
aggregation near Holbox Island, Mexico. These and other studies of 
seasonal whale shark aggregations provide useful information about 
particular aggregations, but the sample populations typically consist 
primarily of immature males and few females and adults, and thus are 
not likely to be representative of the wider population (Rowat and 
Brooks, 2012). Several authors have discussed how, given these skewed 
sample populations, key data requirement of the population models are 
not met, making strong inferences about population size difficult 
(e.g., Graham and Roberts, 2007; Riley et al., 2010).
    However, in addition to the studies of individual whale shark 
aggregations, genetic data have been used to estimate the effective 
population size of whale sharks, meaning the number of individuals 
contributing offspring to the next generation. Using mitochondrial DNA 
from whale shark samples collected from aggregation areas across the 
entire species' range, Castro et al. (2007) calculated an estimated 
effective population size of 238,000 to 476,000 adults. Using 
microsatellite DNA samples from across the species' range, Schmidt et 
al. (2009) estimated an effective population size of 103,572, with a 
standard error range of 27,401-179,794 animals. While these values are 
only rough estimates of the actual effective population size, the 
relatively large estimates indicate that population sizes may be much 
larger than previously assumed (Castro et al., 2007). It is also clear 
that adult whale shark habitat consists of more than just the surface 
waters occupied by transient feeding aggregations, where nearly all of 
the observations of living whale sharks have occurred (Castro et al., 
2007).
    In conclusion, while data are still limited with respect to 
population size and trends, we find the petition insufficient in terms 
of presenting substantial information on whale shark abundance, trends 
or status to indicate the petitioned action may be warranted.

Threats to Whale Sharks

    The petition lists four main categories of threats to whale sharks: 
Habitat destruction, overutilization, inadequacy of existing regulatory 
mechanisms, and other natural and manmade factors. We discuss each of 
these below.

Habitat Destruction

    The petition lists several causes of current and threatened 
destruction of whale shark habitat: Human population growth, coastal 
pollution and ``dead zones,'' climate change, the Deepwater Horizon oil 
spill, and oil drilling in the Gulf of Mexico. The petition focuses on 
the Gulf of Mexico as ``critical habitat'' and states that the large 
dead zone in particular has ``made a large swath of the Gulf [of 
Mexico] uninhabitable for the species.''
    We agree with the petitioner that human population growth, coastal 
pollution, and climate change have various, negative, environmental 
consequences. Mechanisms presented in the petition to explain how these 
threats are impacting whale shark habitats include the increasing 
number and size of dead zones, loss of fish species, and coral 
bleaching. Both fish and coral species are affected to varying degrees 
around the world by the inter-related threats of human populations, 
pollution and climate change. Dead zones, or areas of very low levels 
of dissolved oxygen (2-3 parts per million), occur throughout the 
world, typically in estuaries and coastal areas, and cause mortality of 
organisms at or near the bottom. These threats and mechanisms, however, 
are general in nature, and neither the petition nor the available 
information provides clear linkages to whale sharks or whale shark 
habitat use. Whale sharks occur in oceanic and coastal waters, are 
highly mobile, and consume a variety of prey species. Neither the 
petition nor the information in our files provides evidence to indicate 
whale sharks are experiencing prey-limitations, or that dead zones and 
loss of coral reef habitat are limiting the distribution or range of 
this species. For the specific example of the Gulf of Mexico, sighting 
records and modeling efforts indicate that seasonal whale shark feeding 
areas exist in the northern Gulf of Mexico, primarily along the 
productive continental shelf edge; and that the spatial distribution of 
suitable whale shark habitat is dynamic, meaning it can vary from year 
to year (McKinney et al., 2012). For the most part, this habitat does 
not overlap with the Gulf of Mexico dead zone, which occurs along the 
coast, on the continental shelf, typically from Texas to Louisiana, and 
can vary in size and exact location from year to year.
    The petition also discusses the very specific threat of the 
Deepwater Horizon oil spill and asserts it has degraded important whale 
shark habitat. The petition further states that the extensive oil 
drilling in this region and the ``high probability'' of future spills 
also pose a serious threat to this important whale shark habitat. The 
Deepwater Horizon spill was a catastrophic disaster, and such events 
are extremely problematic for endemic species in particular. While some 
whale sharks may have been exposed to oil and suffered some harm, 
possibly even through the ingestion of contaminated prey, it is unknown 
at this time whether and to what extent there are acute or chronic 
effects on whale sharks at a population level. A reference cited in the 
petition discusses observations made by scientists at Mote Marine 
Laboratory of elevated numbers of whale sharks in the more pristine 
waters near Florida's Gulf Coast during the summer months following the 
spill (Handwerk, 2010). These observations have led researchers to ask 
whether whale sharks that typically use the northern Gulf of Mexico 
were responding to the spill by avoiding the impacted area.
    In summary, the petition, the references cited, and information in 
our files do not comprise substantial information indicating there is 
present or threatened destruction, modification, or curtailment of the 
whale shark's habitat or range such that listing may be warranted.

Overutilization

    The petition states that commercial fishing is the greatest 
contributor to the overutilization of whale sharks and refers to 
landings information for fisheries in India, Taiwan and the 
Philippines. The petition also states that whales sharks are ``heavily 
fished'' in

[[Page 50036]]

Taiwan. Whale shark fishing in Taiwan, however, as well as in India and 
the Philippines, is currently prohibited (Rowat and Brooks, 2012). 
Whale sharks are also legally protected in Australia, Belize (at 
Gladden Spit), Honduras, Mexico, the Maldives, Malaysia, Thailand, and 
the Atlantic waters of the United States (Norman, 2005). Information in 
our files does, however, indicate that while a targeted fishery for 
whale sharks does not yet exist in China, a commercial fishery may be 
emerging, and monitoring is needed to determine the extent to which 
incidental catch is occurring and what effects this may be having on 
whale shark populations in China (Li et al., 2012).
    The petition states that in addition to direct commercial harvest, 
incidental capture of whale sharks has resulted in population decline. 
No information about population declines as a result of bycatch, 
however, is provided. Information in our files about the response of 
fishermen to incidental capture of whale sharks in small-scale 
fisheries is mixed. Interviews conducted with local fishermen in China 
indicate that some fishermen consider them a nuisance species and will 
kill them to minimize damage to their nets, while others have assisted 
with transferring incidentally captured whale sharks to a 
rehabilitation center (Li et al., 2012). In Tanzania, fishermen 
reportedly do not actively hunt for whale sharks and instead actively 
avoid them to prevent damage to their nets (Norman, 2005). Following 
the prohibition on killing whale sharks in Taiwan in 2008, Hsu et al. 
(2012) reports that an unprecedented number of incidentally caught 
whale sharks were released alive (n = 154).
    The petition highlights the tuna purse seine fishery and the 
practice of setting nets around whale sharks as a major source of whale 
shark mortality, injury and physiological stress. Based on purse seine 
fleet records of whale shark-associated sets, whale shark mortality 
rates can be high but also seem to vary widely (Rowat and Brooks, 2012; 
WCPFC, 2012). The highest mortality appears to have been occurring in 
the Pacific fleets (Rowat and Brooks, 2012), which consequently led to 
a ban on setting nets around whale sharks by the Western and Central 
Pacific Fisheries Commission (WCPFC) in 2012 (effective January, 2014). 
The WCPFC is developing guidelines for the safe release and handling of 
whale sharks and will be making these available to fishing vessels 
(WCPFC, 2011). The Parties to the Nauru Agreement, which collectively 
control one of the world's largest tuna purse seine fisheries, also 
agreed in 2010 that vessels shall not engage in fishing or related 
activity in order to catch tuna associated with whale sharks. Very 
recently, both the Indian Ocean Tuna Commission (IOTC) and the Inter-
American Tropical Tuna Commission (IATTC) have also adopted whale shark 
provisions similar to the WCPFC's.
    A third category of overutilization discussed in the petition is 
the dive-based ecotourism occurring in many of the predictable whale 
shark aggregation areas throughout the world. The petition specifically 
identifies diver interactions with whale sharks, such as close 
approaches, touching and riding, as forms of harassment that 
potentially disrupt normal life functions. We strongly advocate against 
touching, handling, or riding any marine wildlife. It remains highly 
speculative, however, whether any short or long term impacts to whale 
shark populations are occurring as result of tourist activities 
(Colman, 1997). Whale shark encounters with divers and tourists are 
also generally limited to those portions of the population and those 
times of year when whale sharks form seasonal aggregations in coastal 
areas. Thus, given their largely offshore existence, whale sharks have 
considerable refuge from interactions with ecotourism operations. In a 
preliminary investigation of whale shark tolerance of snorkelers, 
Rezzolla and Storai (2010) analyzed categories of whale shark behaviors 
and interactions with humans to produce an index of distress. In their 
study, which took place in the Gulf of Tadjoura, Djibouti, snorkeler 
presence was not found to result in any negative interference with 
natural whale shark behavior in a large majority of encounters; and, in 
only 12.7 percent of encounters (N = 55) did whale sharks demonstrate a 
defensive attitude (i.e., banking; Rezzolla and Storai, 2010). For 
whale sharks at Ningaloo Reef, where dive-based ecotourism has a 
relatively long history, recent modeling of the population provides no 
evidence of a population decline; nor is there any indication among 
tour operators and park managers that whale sharks at North Ningaloo 
are becoming harder to find (Holmberg et al., 2009).
    Taking a precautionary approach, however, some countries have 
instituted certain restrictions on ecotourism activities. In Belize, 
only six dive and snorkel boats are allowed within the area designated 
for whale shark viewing, and diving at dusk and night are prohibited 
except for permitted research purposes (Heyman et al., 2001; 
Ram[iacute]rez-Mac[iacute]as et al., 2012). Also, in 1993, with the 
increasing numbers of tourists visiting Ningaloo Marine Park to see the 
whale sharks, the Western Australian Department of Conservation and 
Land Management instituted a licensing system to manage commercial 
operations within the park and reduce disturbance to whale sharks 
(Coleman, 1997). Protections there include limitations on the number of 
licensed tour operators; restrictions on approach speeds, distances and 
time vessels can be near the sharks; and restrictions on numbers, 
behavior and proximity of divers to the sharks (DOEC, 2012).
    Given the information discussed above, we conclude that the 
petition, the references cited, and information in our files do not 
comprise substantial information indicating there is overutilization 
for commercial, recreational, scientific or educational purposes such 
that listing may be warranted.

Inadequacy of Existing Regulatory Mechanisms

    The petition acknowledges that different national and international 
protections have been implemented to conserve whale sharks but states 
that these existing protections are either ineffective or lack 
enforcement. Citing the last IUCN assessment, the petition asserts that 
illegal fishing is continuing despite fishing bans. The IUCN 
assessment, however, only reports that ``. . . illegal fishing [in the 
Philippines] and attempted export of meat still continues on a small 
scale, with shipments having been impounded by customs authorities 
(Anon, 2002b)'' (see Norman, 2005). Additional information on the 
extent of illegal fishing in the Philippines or elsewhere is not 
provided.
    The petition also asserts that the CITES Appendix II listing of 
whales sharks offers insufficient protection. The petition argues that 
because an Appendix II listing requires issuance of export permits only 
and not import permits, the CITES listing does not address domestic 
consumption nor the potential for landing whale sharks caught in one 
country at ports of another country. No information accompanies these 
statements to indicate whether or not such activities are occurring to 
any degree that would constitute a concern for whale sharks. The 
petition also argues that the CITES listing is insufficient because the 
requirements are `easily circumvented' and lack adequate enforcement. 
While we agree enforcement challenges probably exist, no specific 
information in the petition or in our files indicates that illegal 
foreign trade is posing a

[[Page 50037]]

threat that may be creating an extinction risk for whale shark 
populations.
    CITES can be an effective tool to control, track and regulate 
trade, but it is not intended to replace fisheries and other forms of 
management. At least a dozen countries have developed national 
conservation measures for whale sharks, including bans on capture and 
killing of whale sharks in those countries where targeted whale shark 
fishing was once relatively intense (Rowat and Brooks, 2012). Whale 
sharks also receive protection under the Shark Conservation Act of 2010 
(Pub. L. 111-348, January 4, 2011), which prohibits removing fins from 
sharks harvested seaward of state waters or possessing such unattached 
shark fins at port or at sea by any person subject to the jurisdiction 
of the United States; the High Seas Driftnet Moratorium Protection Act 
(16 U.S.C. 1826h-k), which, among other provisions, allows for the 
identification and certification of nations by the United States to 
address bycatch of protected species and shark catches; and through the 
fisheries management actions by the WCPFC, IOTC and IATTC. In 
additional several U.S. coastal states have adopted measures to 
conserve sharks. Whale sharks are listed on Appendix II of the 
Convention of Migratory Species of Wild Animals (``the Bonn 
Convention''), which provides an international forum for the 
development of a conservation and management plan (Rowat and Brooks, 
2012). Whale sharks are also likely to benefit from the United Nations 
Food and Agriculture Organization's International Plan of Action for 
the Conservation and Management of Sharks, which calls for conservation 
and management of sharks to allow for long-term, sustainable use and 
has already stimulated the development of over a dozen national plans 
of action (Rowat and Brooks, 2012). Conservation efforts may be further 
bolstered by the increasing demand for live whale sharks in countries 
where ecotourism has replaced fishing as a source of revenue (Norman, 
2005).
    In conclusion, we find that the information presented in the 
petition and available in our files does not comprise substantial 
information indicating inadequacies of existing regulatory mechanisms 
such that listing may be warranted.

Other Natural and Manmade Factors

    The petition lists the whale shark's susceptibility to fishing and 
natural history strategy as additional threats to whale sharks. Several 
biological characteristics of whale sharks--including large body size, 
long life span, and late maturation--do suggest that this species 
cannot sustain high levels of exploitation. This statement is supported 
by the reported declines in landings in the now closed whale shark 
fisheries in Taiwan, India and the Philippines following the increase 
in popularity and price of whale shark meat in the 1990's (Compagno, 
2002; Hsu et al., 2012). In fact, the IUCN listing was based largely on 
the observed and projected declines in fisheries from the Indian and 
Philippine fisheries, both of which are now closed (Rowat and Brooks, 
2012). In the absence of these targeted fisheries or evidence of 
overutilization of whale sharks, the natural history characteristics of 
whale sharks do not inherently pose a threat to the species. Broad 
statements in the petition that whale sharks are ``currently 
experiencing the type of rapid chaotic change that makes their K-
selected life history pattern a liability,'' and that they are ``being 
fished from their remaining habitat at a rate greater than they can 
replenish their numbers'' are not accompanied by supporting data or 
information about whale sharks. In conclusion, we find that there is 
not substantial information indicating that the other natural or 
manmade factors named in the petition are operating such that listing 
may be warranted.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
does not present substantial scientific or commercial information 
indicating the petitioned action may be warranted.

References Cited

    A complete list of references is available upon request to the 
Office of Protected Resources (see ADDRESSES).

Authority

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

    Dated: August 12, 2013.
Samuel D. Rauch III,
 Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator, National Marine 
Fisheries Service.
[FR Doc. 2013-20026 Filed 8-15-13; 8:45 am]
BILLING CODE 3510-22-P