80 FR 16356 - Endangered and Threatened Species; 90-Day Finding on Two Petitions To List Porbeagle Sharks

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 80, Issue 59 (March 27, 2015)

We, NMFS, are accepting two 2010 petitions to list porbeagle sharks (Lamna nasus) on the Federal List of Endangered and Threatened Wildlife under the Endangered Species Act (ESA) of 1973, as amended. This action is being taken in response to a December 12, 2014, U.S. District Court decision that our previous rejection of the petitions in 2010 was arbitrary and capricious. To ensure a comprehensive review, we are soliciting scientific and commercial data and other information relevant to the status of porbeagle sharks worldwide. We will publish the results of that review and will make a finding as to whether the petitioned action is or is not warranted on or before December 12, 2015.

[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Proposed Rules]
[Pages 16356-16358]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-07073]



[[Page 16356]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 150122069-5272-01]
RIN 0648-XD740


Endangered and Threatened Species; 90-Day Finding on Two 
Petitions To List Porbeagle Sharks

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

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

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SUMMARY: We, NMFS, are accepting two 2010 petitions to list porbeagle 
sharks (Lamna nasus) on the Federal List of Endangered and Threatened 
Wildlife under the Endangered Species Act (ESA) of 1973, as amended. 
This action is being taken in response to a December 12, 2014, U.S. 
District Court decision that our previous rejection of the petitions in 
2010 was arbitrary and capricious. To ensure a comprehensive review, we 
are soliciting scientific and commercial data and other information 
relevant to the status of porbeagle sharks worldwide. We will publish 
the results of that review and will make a finding as to whether the 
petitioned action is or is not warranted on or before December 12, 
2015.

DATES: Written comments, data and information related to this petition 
finding must be received no later than 5 p.m. local time on May 12, 
2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0013, by either of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2015-0013,
    2. Click the ``Comment Now!'' icon, complete the required fields
    3. Enter or attach your comments.
    - OR -
    Mail: Submit written comments to Assistant Regional Administrator, 
Protected Resources Division, Attn: Porbeagle Shark Status Review, 
Greater Atlantic Regional Fisheries Office, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted without change for public viewing 
on www.regulations.gov. All personal identifying information (e.g., 
name, address, etc.), confidential business information, or otherwise 
sensitive information submitted voluntarily by the sender will be 
publicly accessible. We will accept anonymous comments (enter ``N/A'' 
in the required fields if you wish to remain anonymous).
    The petitions and other pertinent information are also available 
electronically on our Web site at: http://www.greateratlantic.fisheries.noaa.gov/protected/pcp/soc/porbeagle_shark.html.

FOR FURTHER INFORMATION CONTACT: Kimberly Damon-Randall, NMFS, Greater 
Atlantic Region, (978) 281-9328; or Marta Nammack, NMFS, HQ, (301) 427-
8469.

SUPPLEMENTARY INFORMATION:

Background

    We received a petition from Wild Earth Guardians (WEG) dated 
January 20, 2010, requesting that we list porbeagle sharks (Lamna 
nasus) throughout their entire range, or as Northwest Atlantic, 
Northeast Atlantic, and Mediterranean Distinct Population Segments 
(DPS) 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), dated January 21, 2010, requesting that we list a 
Northwest Atlantic DPS of porbeagle sharks as endangered in the North 
Atlantic under the ESA. Information contained in the petitions focused 
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.
    Section 4(b)(3)(A) of the ESA requires that, to the maximum extent 
practicable, within 90 days after receiving a petition, the Secretary 
make a finding whether the petition presents substantial scientific 
information indicating that the petitioned action may be warranted (90-
day finding). The ESA implementing regulations for NMFS 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 (50 CFR 424.14(b)(1)). If a positive 90-day 
finding is made, then we must promptly conduct a review of the status 
of the species concerned and publish a finding indicating whether the 
petitioned action is or is not warranted within one year (1-year 
finding).
    On July 12, 2010, we published a 90-day finding in the Federal 
Register (75 FR 39656; http://www.nmfs.noaa.gov/pr/species/frnotices/negative90d/porbeagle_shark_75_fr_39656.pdf) stating that neither 
petition presented substantial information indicating that listing 
porbeagle sharks may be warranted. Accordingly, a status review of the 
species was not initiated.
    In August 2011, the petitioners filed complaints in the U.S. 
District Court for the District of Columbia challenging our denial of 
the petitions (Case 1:11-cv-01414-BJR HUMANE SOCIETY OF THE UNITED 
STATES v. BLANK et al.). On November 14, 2014, the court published a 
Memorandum Opinion vacating the 2010 90-day finding for porbeagle 
shark, and ordering NMFS to prepare a new 90-day finding. The court 
entered final judgment on December 12, 2014. This document represents 
our new 90-day finding.
    Given the length of time between when we received the petitions in 
2010 and this new 90-day finding, we have taken into account both 
information submitted with and referenced in the petitions as well as 
all other new information readily available in our files regarding 
porbeagle sharks globally. We have thoroughly reviewed the Court's 
Memorandum Opinion, the 2010 petitions and all other information 
available in our files in preparing our new finding. As we did in 2010, 
we consulted with experts within the Greater Atlantic Regional 
Fisheries Office's Sustainable Fisheries Division, NMFS' Highly 
Migratory Species Management Division, Northeast Fisheries Science 
Center- Apex Predator Program, and the Southeast Fisheries Science 
Center in November and December 2014 to provide context for the 
petitions and the information in our files.

The 2010 Petitions and New Information on Porbeagle Sharks

    Both petitions clearly identified themselves as petitions and 
included the identification information for the petitioner, as required 
in 50 CFR 424.14(a). The petitions indicated their recommended 
administrative measure and gave the scientific and common names for 
porbeagle sharks. The WEG petition requested that we list under the ESA 
porbeagle sharks throughout their entire range. Alternatively, the WEG 
petition proposed that porbeagle be listed under the ESA as three 
distinct population segments (DPSs) as follows: The Northwest Atlantic 
DPS, the

[[Page 16357]]

Northeast Atlantic DPS and the Mediterranean DPS. The petition 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 the above named DPSs of 
porbeagle sharks globally. The HSUS petition only addresses a Northwest 
Atlantic DPS of porbeagle sharks, requesting they be listed as 
endangered in the Northwest Atlantic.
    Several new references were available in our files since remand 
that were not available when the 2010 petitions were received. 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 (ICES/ICCAT, 2009). 
The information in this report was considered in our 2010 90-day 
finding, and this report continues to be a good source of recent, 
comprehensive porbeagle shark data. However, there is a new Canadian 
assessment for the Northwest Atlantic stock based on information 
contained in Campana et al. 2012 (2012 Canadian assessment). Also, 
other new information is contained in recent ICCAT proceedings, 
regulatory documents, published literature and FR notices since the 
ICES/ICCAT 2009 stock assessment (Andrushchenko et al./Canada, 2014; 
Bendall et al., 2013; Campana et al., 2012; Canada/ICCAT, 2014; CPC/
ICCAT, 2014; Gallagher et al., 2014; Kitamura and Matsunaga, 2010; 
Marua et al., 2012; NEAFC/ICCAT, 2013; NMFS/HMS, 2013; SCRS, 2014; 
Semba et al., 2013; 75 FR 250; 79 FR 75068; 50 CFR part 635).
    Additionally, several new management actions were implemented or 
became effective prior to remand, but after the 2010 petitions were 
received. These include the addition of porbeagle sharks to Appendix II 
of the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora, a 2013 prohibition on directed fishing for porbeagle 
in Canada and increasing protections in the European Union (EU) which 
will more closely regulate trade of the species.
    In 2014, the Committee on the Status of Endangered Wildlife in 
Canada (COSEWIC) published a new assessment and status report on 
porbeagle sharks in Canada. The report reaffirms COSEWIC's designation 
of the species as ``endangered'' due to COSEWIC criterion A2b under the 
Species at Risk Act. The report states the species meets this criterion 
``because the abundance of mature females has declined by 74-77% over 
the past 2.6 generations. Although the directed fishery has been 
suspended, the species continues to be taken as bycatch in a variety of 
other fisheries.'' As noted throughout the report, the species decline 
has halted, and while numbers of porbeagle remain low compared to pre-
exploitation levels, the information does indicate the species trend is 
stable. The report states that in Canada, the ``greatest current threat 
to porbeagle is overfishing due to multiple bycatch fisheries, which 
are not closely monitored, where a large portion of the catch may be 
discarded and unreported.'' While this report is an update of a 2004 
COSEWIC report, relied upon by the petitioners, which also assessed 
porbeagle as endangered based on the decline that the species has 
experienced, the emphasis the new status report places on the potential 
threat to the species from ongoing, unregulated bycatch in Canada is of 
concern and represents new information not previously considered. A 
status review is the appropriate means for assessing this potential 
threat.
    COSEWIC also provides information on whether the Northwest Atlantic 
stock constitutes a single designatable unit. The report indicates that 
the Northeast and Northwest populations of porbeagle sharks are 
separate. This conclusion appears to be based solely on conventional 
tagging information, consistent with the petitions, and does not appear 
to incorporate any information from genetic studies. In our 2010 
finding, we concluded, based on genetic information, that porbeagle 
from the Northeast and Northwest Atlantic are not discrete. While we 
believe genetics are a more reliable indicator of discreteness than 
tagging information, we recognize the uncertainty about the existence 
of discrete populations. The appropriate means for addressing this 
uncertainty is to consider the information in a review of the status of 
the species.

Petition Finding

    In light of the information described above, which indicates that 
the petitioned actions may be warranted, we are accepting the petitions 
and initiating a review of the status of the species.

Information Solicited

    To ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information concerning porbeagle sharks. We request information from 
the public, concerned governmental agencies, Native American tribes, 
the scientific community, conservation groups, industry, or any other 
interested parties concerning the current and/or historical status of 
porbeagle sharks.
    Specifically, we are soliciting information, including unpublished 
information, in the following areas: (1) Historical and current 
distribution and abundance of porbeagle sharks throughout their range; 
(2) historical and current population trends for porbeagle sharks; (3) 
life history and habitat requirements of porbeagle ; (4) genetics and 
population structure information (including morphology, ecology, 
behavior, etc.) for populations of porbeagle; (5) past, current, and 
future threats to porbeagle, including any current or planned 
activities that may adversely impact the species; (6) ongoing or 
planned efforts to protect and restore porbeagle and their habitat; and 
(7) management, regulatory, and enforcement information pertaining to 
porbeagle. We request that all information be accompanied by: (1) 
Supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications; and (2) the submitter's name, 
address, and any association, institution, or business that the person 
represents.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination. Section 4(b)(1)(A) of the ESA directs that a 
determination must be made ``solely on the basis of the best scientific 
and commercial data available.'' On or before December 12, 2015, we 
will issue a 12-month determination based on a review of the best 
scientific and commercial data available, including all relevant 
information received from the public in response to this 90-day 
finding.
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. Please note that in our 
final determination we may not consider comments we receive after the 
date specified in the DATES section. If you submit your information via 
http://www.regulations.gov, your entire submission including personal 
identifying information will be posted on the Web site. If your 
submission is made via hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this information from public review. However, we cannot 
guarantee that we will be able to do so. We will post all hard copy 
submissions on http://www.regulations.gov.

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    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection, by appointment, during normal business hours at 
NMFS' Greater Atlantic Regional Fisheries Office.

Authority

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

    Dated: March 23, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-07073 Filed 3-26-15; 8:45 am]
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