Daily Rules, Proposed Rules, and Notices of the Federal Government
On June 25, 2012, we received a petition from WildEarth Guardians to list the northeastern Pacific Ocean DPS of great white shark (
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
Under the ESA, a listing determination may address a species, which is defined to also include any subspecies and, for vertebrate species, any DPS which interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' continued existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA implementing regulations 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 (50 CFR 424.14(b)). In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended
Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
We evaluate the petitioners' 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 petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files indicating 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 it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information negates a positive 90-day finding if a reasonable person would conclude that the uncertainty from the lack of information 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 faces an 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 (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 indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by 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 the classification alone does 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” (
The great white shark (also known as “white shark”) is a circumglobal species that resides primarily in temperate and sub-tropical waters (Compagno
Great white sharks are distinguished by their stout spindle-shaped body, moderately long and bluntly conical snout, five long gill slits, large falcate first dorsal fin with free rear tip located over the pectoral inner margins, pivoting second dorsal and anal fins, white ventral body color, and lack of any secondary keels on the base of the caudal fin. The teeth are large, flat, and triangular shaped, with blade-like serrations, although teeth in the rear of
Available information on the general life history pattern of white sharks suggests that females mature at about 12-14 years of age, and about 4-5 m (13-16 ft) in length. Males mature at 9-10 years old, and about 3.5-4.1 m (11.5-13.5 ft) in length (Compagno
Primary concentrations of white sharks occur in South Africa, Australia and New Zealand, and the northeastern Pacific Ocean, with other white sharks observed in the north Atlantic and the Mediterranean (Boustany
White sharks in the northeastern Pacific Ocean have been observed from Baja California to the Bering Sea (Kato, 1965; COSEWIC, 2006) and offshore out to Hawaii. Using satellite and acoustic telemetry, researchers have followed movements of white sharks in the northeastern Pacific Ocean and discovered patterns of site fidelity and repeated homing in structured seasonal migrations, including fixed destinations, schedules, and routes (Boustany
The coastal areas of southern California and Baja California, Mexico, appear to be important nursery areas hosting large concentrations of young-of-the-year (YOY) and juvenile great white sharks (Dewar
The two petitions request the same action, to list the northeastern Pacific Ocean (NEP) DPS of great white shark (or white shark) as endangered or threatened under the ESA and to designate critical habitat for the DPS. Therefore, we evaluated the information provided in both petitions and readily available in our files to determine if the petitions presented substantial scientific or commercial information indicating that the petitioned action may be warranted. Both petitions contain information on the species, including the taxonomy, species description, geographic distribution, habitat, population status and trends, and factors contributing to the species' decline. Both petitions state that a primary threat to the NEP population of white shark is exploitation by fishing (historical and current) and bycatch in fisheries. Both petitions also assert that the lack of adequate regulatory protection worldwide, bioaccumulation of contaminants, and habitat degradation, as well as the species' biological constraints, increase the susceptibility of the NEP population of white shark to extinction.
According to both petitions, the NEP population of white shark qualifies as a DPS because the NEP population is both discrete and significant, as defined under the Services' DPS policy (61 FR 4722; February 7, 1996). The WildEarth Guardians petition asserts that all of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the NEP population, whereas the Oceana
Both petitions assert that the NEP population of white shark qualifies as a DPS, because it is both a discrete and significant population segment of the species, as defined in the NMFS and USFWS policy on DPSs (61 FR 4722; February 7, 1996). First, the petitions state that the NEP population is discrete based on both genetic and spatial
In addition to genetic separation, the NEP population is geographically separated from other populations, adheres to predictable seasonal migratory routes, and exhibits strong site fidelity within the NEP. As discussed above, white sharks in the NEP population range from Baja California to the Bering Sea, and out to Hawaii. Tagged white sharks from the NEP population consistently used three core areas within the northeastern and central Pacific ocean: (a) The coastal shelf waters of North America (primarily from central California to Baja California); (b) the slope and offshore waters of the Hawaiian archipelago; and (c) offshore waters between California and Hawaii, including an offshore habitat approximately halfway between California and Hawaii referred to as the SOFA/white shark café, used primarily by adults (Boustany
Second, the petitions state that the NEP population is discrete because of 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 (i.e., the inadequacy of existing regulatory mechanisms as a factor to consider in determining whether a species is endangered or threatened). The petitions state that a large portion of the NEP population's habitat is within U.S. waters, highlighting the importance of U.S. protections for the species. The petitions also argue that the NEP population is discrete because it ranges internationally into waters with differing management regimes, particularly when occupying offshore habitats and visiting aggregation sites off Baja California, where it may be subject to exploitation by non-U.S. entities. However, the Services' DPS policy states that a population may be considered discrete if it is separated from other populations by international boundaries within which significant differences in regulatory mechanisms exist. That the NEP population crosses these international boundaries actually argues against considering this population as discrete from other white shark populations. Thus, the NEP population is not considered discrete based on this factor. Nevertheless, the information available in the petitions and in our files provides evidence suggesting the NEP population may be discrete based on both genetic and spatial separation from other populations.
Both petitions make the case that the NEP population is significant to the taxon. As described above, the NEP population does not appear to overlap spatially with other populations (Jorgensen
Based on the above analysis, we conclude that the information in the two petitions and in our files suggests that the NEP population of white shark may qualify as a DPS under the discreteness and significance requirements.
Both petitions assert that habitat degradation, largely associated with increasing human activity, poses a threat to the NEP population of white shark, although the two petitions focus on different sources of habitat degradation. The Oceana
The WildEarth Guardians petition also suggests that the concentration of marine debris in the North Pacific Gyre (the “Great Pacific Garbage Patch”) may
We conclude that the information in the petitions and in our files suggests that habitat degradation associated with pollutant discharge in the Southern California Bight may be impacting the health of the NEP population of white shark. Human exploitation may have impacted prey resources (e.g., pinnipeds and fish and invertebrate species) in the past; however, further analyses are needed to evaluate the recent and current impacts on prey resources. In addition, the information provided on the effects of marine debris in the North Pacific Gyre or ocean acidification is insufficient to evaluate whether these factors may be threatening the habitat of the NEP population of white shark such that listing may be warranted.
Information from both petitions suggests that a primary threat to the NEP population of white shark is from fisheries. The petitions cite information on the effects of fisheries on white sharks worldwide and within the NEP. White sharks are harvested in targeted fisheries and as bycatch and are highly prized for their teeth, jaws, and fins. White sharks are primarily caught incidentally in commercial fisheries using longlines, setlines, gillnets, trawls, fish traps, and other gear (Compagno, 2001; Fowler
In the NEP Ocean, there is little commercial fishing activity in the SOFA, providing a potential refuge from incidental capture for individuals when they occupy this offshore area (Domeier, 2012). However, the lack of international laws to protect great white sharks in international waters is a potential threat to the species (Domeier, 2012; discussed further under “Inadequacy of existing regulatory mechanisms”). White sharks are most vulnerable to fisheries capture when occupying nearshore aggregation or nursery habitats, especially YOY and juvenile stages (Domeier, 2012). Off California, there have been no directed fisheries for white sharks, but incidental and targeted catch has occurred (Lowe
Incidental catch of white sharks also continues to occur off Baja California. Incidental catch of 111 great white sharks was reported from 1999 through 2010, consisting of YOY (79.8 percent) and juvenile (20.2 percent) sharks (Santana-Morales
The petitions assert that the continued incidental catch of white sharks poses a threat to the species, because the removal of just a few individuals could have a substantive effect on the local population (Pyle
We conclude that the petitions and information in our files present evidence that fisheries impacts continue to affect white shark populations worldwide and in the NEP, primarily due to incidental capture in fisheries and the potential for the high value of great white shark teeth, jaws, and fins to promote keeping incidentally caught individuals rather than releasing them back into the water. This information suggests that fisheries impacts may be affecting the continued existence of the NEP population of white shark. To further evaluate these effects, more information is needed on fisheries impacts specifically within the range of the NEP population, particularly on the capture of white sharks in fisheries in offshore waters and the lethal and sublethal effects of catch and release.
The WildEarth Guardians petition asserts that the addition of mercury, organochlorine contaminants, and other pollutants to the ocean and the effects of these pollutants on the NEP population of white sharks may be categorized as disease. The petition does not provide any additional information to support that disease is a factor affecting the NEP population's continued existence such that listing may be warranted. Thus, the available information is insufficient to evaluate if disease may be affecting the continued existence of the NEP population of white shark. The petition more appropriately discusses pollutants and their effects on the NEP population under the habitat degradation and “other natural or manmade” factors.
The petitions assert that the inadequacy of existing Federal, state, or international regulatory mechanisms require that the NEP population of white shark be listed under the ESA. The petitions contend that although Federal, state, and international regulations exist to protect white sharks from targeted capture in some areas, these regulations are insufficient because white sharks in the NEP population are still vulnerable to incidental capture throughout its range, and to exploitation when in international waters. In addition, the WildEarth Guardians petition states that existing regulations do not protect the NEP population's habitat and health from threats such as habitat degradation, pollution, and overfishing of prey resources.
Within the United States, Federal and state regulations to protect white sharks vary. Currently, the retention of white sharks in U.S. Federal waters in the Pacific Ocean is prohibited under the Highly Migratory Species Fishery Management Plan. In California, targeted capture of white sharks is prohibited, but incidentally caught white sharks may be retained under a permit from the California Department of Fish and Game for scientific or educational purposes (14 CCR § 28.06). In Oregon, all white sharks must be released immediately if caught (ODFW, 2012). Washington and Hawaii do not have specific fisheries regulations for white shark. However, both Hawaii and California passed bans making it unlawful to possess, sell, offer for sale, trade, or distribute shark fins, which may provide some protection for white sharks. The petitions argue that despite these protections, the continued incidental capture and mortality of even small numbers of white sharks in U.S. waters, particularly off California, can have a large impact on the local population, citing a study off the Farallon Islands in which the removal of four white sharks from the area in 1982 resulted in significantly fewer sightings of shark attacks on pinnipeds than expected in 1983 to 1985 (Pyle
Outside of the United States, protections for white sharks also vary. In Mexico, catch and retention of white sharks and the landing of shark fins without carcasses has been banned since 2006 (Lack and Sant, 2011), although incidental capture continues to occur (Galván-Magaña
Based on the information in the petition and in our files as discussed above, we conclude that existing regulatory mechanisms may be inadequate to address threats to the NEP population of white shark. To further evaluate the adequacy of existing regulatory mechanisms, more information is needed regarding the level of illegal fishing and poaching in U.S. and international waters.
The two petitions assert that other natural or manmade factors may be affecting the survival and recovery of the NEP population of white shark, including contaminant loads, negative press, life history factors, small population size, and the synergistic effects of all of the threats facing the population. Both petitions cite a study conducted in the Southern California Bight revealing mercury and organochlorines (e.g., DDT, PCBs, and chlordanes) in the tissues of juvenile white sharks at levels that may result in physiological impairment (Mull
The WildEarth Guardians petition asserts that natural factors, including the species' life history characteristics and small population size, also increase the extinction risk of the NEP population of white shark, particularly when considered in combination with other threats to the species. The petition states that the species' life history characteristics (e.g., slow growth, late maturation, long-life, long generation time, small litter size, and low reproductive capacity) make it susceptible to extinction when faced with population declines and continuing threats (Withgott and Brennan, 2007). The petition also contends that the small estimated population size (e.g., approximately 340 subadults and adults in the NEP population; Chapple
Overall, the petition and information in our files suggest that effects from bioaccumulation of contaminants and negative media attention, coupled with the life history characteristics of white sharks, may be affecting the survival and recovery of the NEP population. More specific information is needed, however, to assess population trends and to evaluate the population's estimated abundance in terms of the potential effects on the population's survival and recovery.
We conclude that the petition presents substantial scientific or commercial information indicating that multiple section 4(a)(1) factors, as discussed above, may be causing or contributing to an increased risk of extinction for the NEP population of white shark.
After reviewing the information contained in both petitions, as well as information readily available in our files, we conclude the petitions present substantial scientific information indicating the petitioned action of listing the NEP population of white shark as a threatened or endangered DPS may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(3)), we will commence a status review of the species. During the status review, we will determine whether the population identified by the petitioners meets the DPS policy's criteria, and if so, whether the population is in danger of extinction (endangered) or likely to become so within the foreseeable future (threatened) throughout all or a significant portion of its range. We now initiate this review, and thus, the northeastern Pacific Ocean population of white shark is considered to be a candidate species (50 CFR 424.15(b)). Within 12 months of the receipt of the WildEarth Guardians petition (June 25, 2013), we will make a finding as to whether listing the species as endangered or threatened is warranted as required by section 4(b)(3)(B) of the ESA. If listing the species is warranted, we will publish a proposed rule and solicit public comments before developing and publishing a final rule.
To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information relevant to whether the NEP Ocean population of white sharks is a DPS and whether it is threatened or endangered. Specifically, we are soliciting published and unpublished
We also request information on critical habitat for the NEP Ocean population of white sharks. Specifically, we request information on the physical and biological habitat features that are essential to the conservation of the species and identification of habitat areas that include these essential physical and biological features. Essential features include, but are not limited to: (1) Space for individual and population growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of the species (50 CFR 424.12). For habitat areas potentially qualifying as critical habitat, we request information describing: (1) The activities that affect the habitat areas or could be affected by the designation; and (2) the economic impacts, impacts to national security, or other relevant impacts of additional requirements of management measures likely to result from the designation.
We request that all information be accompanied by: (1) Supporting documentation such as maps, raw data with associated documentation, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, mailing address, email address, and any association, institution, or business that the person represents.
A complete list of references is available upon request from the NMFS Southwest Regional Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531