Endangered Species Act (ESA) Section 7(a)(2) Consultation: Oceanic Whitetip Shark and Giant Manta Ray Supplemental Biological Opinion

NMFS (2022) Endangered Species Act (ESA) Section 7(a)(2) Consultation: Oceanic Whitetip Shark and Giant Manta Ray Supplemental Biological Opinion. PIRO-2022-02106, Pacific Island Region

Section 7(a)(2) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1536(a) (2)) requires each federal agency to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. When a federal agency’s action “may affect” a listed species or its designated critical habitat, that agency is required to consult formally with the National Marine Fisheries Service (NMFS) or the United States Fish and Wildlife Service (FWS), depending upon the endangered species, threatened species, or designated critical habitat that may be affected by the action (50 CFR 402.14(a)). Federal agencies are exempt from this general requirement if they have concluded that an action “may affect, but is not likely to adversely affect” endangered species, threatened species or their designated critical habitat, and NMFS or the FWS concur with that conclusion (50 CFR 402.14
Section 7(b)(3) of the ESA requires that at the conclusion of consultation, NMFS provides an opinion stating whether the Federal agency’s action is likely to jeopardize ESA-listed species or destroy or adversely modify designated critical habitat. If NMFS determines that the action is likely to jeopardize listed species or destroy or adversely modify critical habitat, in accordance with the ESA section 7(b)(3)(A), NMFS provides a reasonable and prudent alternative that allows the action to proceed in compliance with section 7(a)(2) of the ESA. If incidental take is expected, section 7(b)(4) requires NMFS to provide an incidental take statement that specifies the impact of any incidental taking and includes reasonable and prudent measures to minimize such impacts and terms and conditions to implement the reasonable and prudent measures. NMFS, by regulation has determined that an incidental take statement must be prepared when take is “reasonably certain to occur” as a result of the proposed action (50 C.F.R. 402.14(g)(7)). For the actions described in this document, the action agency is NMFS’ Pacific Islands Region
(PIRO) Sustainable Fisheries Division (SFD), which proposes to authorize the operation of the American Samoa longline (ASLL) fishery, as currently managed under the existing regulatory framework of the Pelagic Fishery Ecosystem Plan (FEP) and other applicable laws. The consulting agency for this proposal is PIRO’s Protected Resources Division (PRD). This document represents NMFS’ final biological opinion on the effects of the proposed action on threatened giant manta ray and oceanic whitetip shark.