[Federal Register Volume 77, Number 196 (Wednesday, October 10, 2012)]
[Proposed Rules]
[Pages 61559-61562]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24930]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 1206013326-2490-01]
RIN 0648-XA984
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List Nassau Grouper 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, request for information.
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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list
Nassau grouper (Epinephelus striatus) as threatened or endangered under
the Endangered Species Act (ESA). We find that the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. Accordingly, we will conduct a
review of the status of this species to determine if the petitioned
action is warranted. To ensure that the status review is comprehensive,
we solicit information pertaining to this species from any interested
party.
DATES: Information and comments on the subject action must be received
by December 10, 2012.
ADDRESSES: You may submit information, identified by the code 0648-
XA984, addressed to: Jason Rueter, Fisheries Biologist, by any of the
following methods:
Electronic Submissions: Submit all electronic information
via the Federal eRulemaking Portal http://www.regulations.gov.
Facsimile (fax): 727-824-5309.
Mail: NMFS, Southeast Regional Office, 263 13th Avenue
South, St. Petersburg, FL 33701.
Hand delivery: You may hand deliver written information to
our office during normal business hours at the street address given
above.
Instructions: All information received is a part of the public
record and may be posted to http://www.regulations.gov without change.
All personally identifiable information (for example, name, address,
etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information. We will accept anonymous
submissions. Attachments to electronic comments will be accepted in
Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats
only.
FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS Southeast Region,
727-824-5350; or Lisa Manning, NMFS Office of Protected Resources, 301-
427-8466.
SUPPLEMENTARY INFORMATION:
Background
On September 3, 2010, we received a petition from the WildEarth
Guardians to list goliath grouper (Epinephelus itajara), Nassau grouper
(Epinephelus striatus), and speckled hind (Epinephelus drummondhayi) as
threatened or endangered under the
[[Page 61560]]
ESA. Copies of this petition are available from us (see ADDRESSES,
above). Due to the scope of the WildEarth Guardians' petition, as well
as the breadth and extent of the required evaluation and response, we
decided to provide species-specific findings on this petition. This
finding addresses WildEarth Guardians' petition to list Nassau grouper.
Negative findings for goliath grouper and speckled hind were made on
June 1, 2011 (76 FR 31592), and May 1, 2012 (77 FR 25687),
respectively.
ESA Statutory and Regulatory Provisions and Evaluation Framework
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
such 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 during which we will conduct a
comprehensive review of the best available scientific and commercial
information. In such cases, we are to conclude the review with a
finding as to whether, in fact, the petitioned action is warranted
within 12 months of receipt of the petition. Because the finding at the
12-month stage is based on a more thorough review of the available
information, as compared to the narrow scope of review at the 90-day
stage, a ``may be warranted'' finding 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, we determine whether species are threatened
or endangered because of any one or a combination of the following
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,
the Secretary 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)).
Court decisions clarify the appropriate scope and limitations of
the Services' review of petitions at the 90-day finding stage, in
making a determination whether 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 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 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
petitioner's 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 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
[[Page 61561]]
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.
Nassau Grouper Species Description
The Nassau grouper is a moderately large sea bass (family
Serranidae) distributed in the Western North Atlantic from Bermuda,
Florida, Bahamas, Yucatan Peninsula, and throughout the Caribbean to
southern Brazil. It is not known from the Gulf of Mexico except at the
Campeche Bank off the coast of the Yucatan, the Flower Gardens Bank off
Texas, and off the Dry Tortugas and Key West, Florida (Beebe and Tee-
van, 1933; Randall, 1965; Heemstra and Randall, 1993; Foley et al.,
2007). Nassau grouper are generally found near high-relief coral reefs
and rocky bottoms from inshore to a maximum depth of approximately 330
feet (100 m). There is no evidence of distinct subpopulations of Nassau
grouper based on genetic analysis (mtDNA and microsatellites) of fish
sampled from a number of sites in Florida, Cuba, Belize and the Bahamas
(Sedberry et al., 1996). Therefore, Nassau grouper are considered as
one, connected population.
Nassau grouper reach a maximum size of approximately 39 inches (100
cm) and 55 pounds (25 kg). They are late-maturing (between 4-7 years)
and fairly long-lived (up to 29 years). Nassau grouper were originally
considered to be amonandric protogynous hermaphrodites, meaning all
males are produced by the sex change of adult females. Evidence of a
change from adult female to adult male, however, is weak. Instead,
available evidence indicates that the Nassau grouper is primarily
gonochoristic (separate sexes) (Sadovy and Eklund, 1999). Nassau
grouper are known to assemble in very large numbers, from a few dozen
to historically over 100,000 individuals, at transient, site-specific
areas each year to spawn, presumably cued by temperature and moon
phase. Spawning is not known to occur outside of these aggregations.
Aside from spawning, Nassau grouper are solitary fish.
Analysis of the Petition
We have determined, based on the information provided in the
petition and readily available in our files, that the petition
presented substantial scientific or commercial information indicating
that the petitioned action may be warranted. The petition contains a
justification for the recommended measure, species taxonomic
description, geographic distribution, preferred habitat
characteristics, population status and trends, and threats contributing
to the species' decline, and it is accompanied by appropriate
supporting documentation. Below is a synopsis of our analysis of the
information provided in the petition and readily available in our
files.
The petition cites classifications made by NMFS, the International
Union for Conservation of Nature (IUCN), and NatureServe to support its
assertion that Nassau grouper is imperiled. The petitioner suggests
historic and continued overfishing is the primary threat to Nassau
grouper. Because commercial and recreational landings in the U.S. from
1986-1991 decreased in both pounds landed and average size, the
Caribbean (1990), South Atlantic (1991), and Gulf of Mexico (1996)
Fishery Management Councils, and the State of Florida (1993) all have
prohibited the take and possession of Nassau grouper (NMFS, 2010). The
IUCN estimates the population of Nassau grouper has declined by 60
percent over the last three generations (Cornish and Eklund, 2003). The
petition also cites the IUCN's conclusion that Nassau grouper is
suffering from a ``high rate of decline in population size'' (Cornish
and Eklund, 2003). This decline was estimated by weighing estimates of
the original Nassau population to coral reef area (rather than
population size) to give an overall decline figure. This method assumes
that pristine densities of Nassau grouper were the same at all
localities. This is probably not likely to have been the case but it
enables a single figure to be derived (60 percent decline of Nassau
grouper), which is likely more representative of the global situation
than the alternative, which would be to say that the decline lies
between 55 and 99.5% (the lowest and highest documented decline rates)
(Cornish and Eklund, 2003). Additionally, NatureServe (2009) estimates
the global abundance of Nassau grouper to be as low as 10,000
worldwide, with numbers still declining. This estimate by NatureServe
is based on the occurrence of at least 28 extant spawning aggregations
in the western Atlantic, most of which are assumed to each represent
hundreds to thousands of individuals (Smith, 1972; Aguilar-Perera,
1990). Conversely, the declining trend is based on spawning
aggregations that are absent, disappearing, or becoming increasingly
rare throughout the range with several spawning aggregations having
vanished completely (Sobel, 1996).
Heavy fishing of spawning aggregations leading to recruitment
overfishing is thought to be a major reason for the ``catastrophic''
decline in populations of Nassau grouper (Colin, 1996; Beets and Hixon,
1994). The spawning aggregations are particularly vulnerable to fishing
pressure as they are spatially and temporally predictable. The
aggregations form on or near the full moons during November through
February when water temperatures are 25-26 degrees Celsius (Colin,
1992). Targeting of spawning aggregations can cause local populations
to be extirpated in a matter of a few years (Morris et. al., 2000).
The petitioner claims that throughout the Caribbean, inadequate
regulations have led to heavy fishing of the spawning aggregations.
Numerous examples exist of the discovery of spawning aggregations,
followed by heavy exploitation, and then loss of the spawning
aggregation in subsequent years (see Sadovy, 1992 for examples). In
other countries, heavy fishing of aggregations led to a fishery
composed of primarily juveniles or to the species being considered
fishery extinct (Sadovy, 1992). Because there was no evident increase
in the number of Nassau grouper following the fishing ban imposed in
the Atlantic and Caribbean, Sadovy and Eklund (1999) state an increase
is unlikely given presumed illegal capture. In the U.S., where harvest
has been prohibited, regulations have not totally prevented harvest of
grouper. For example, harvest has been prohibited since 1990 in Puerto
Rico yet Nassau grouper landings averaged 12,539 pounds annually
between 1991-2010. Further, in waters off the continental U.S.,
population levels are low relative to historical levels, having shown
little response to a fishing moratorium established in 1992 (NMFS,
2010).
The information presented by the petitioner and otherwise available
to us indicates that Nassau grouper populations in many Caribbean
countries declined as a result of overexploitation and inadequacy of
regulatory mechanisms. Much of the data we and the petition use are
quite dated with some more than two decades old, and we are concerned
about relying on such old information for this finding; however, we
believe the seriousness of these threats and the lack of a response
[[Page 61562]]
by the population to regulatory mechanisms over the last twenty years
are sufficient to indicate that Nassau grouper face an extinction risk
of concern. Declines in landings, catch per unit effort, and, by
implication, abundance have been reported throughout its range, and it
is now considered to be commercially extinct in a number of areas
(Sadovy and Eklund, 1999). Further, heavy fishing, especially of
spawning aggregations, and certain fishing practices such as
spearfishing and the excessive capture of juveniles in small-mesh fish
traps, are the attributed causes for severe declines (Sadovy and
Eklund, 1999). The reported extirpations of spawning aggregations, in
particular, causes us to be concerned that overexploitation may pose a
significant risk to the Nassau grouper, as the demographic impacts of
targeting the reproductive population can be much more serious than
merely fishing down a stock's overall abundance.
In addition to the information on overutilization and inadequacy of
existing regulatory mechanisms, the petitioner provided information
addressing the other ESA section 4(a)(1) listing factors: the present
and threatened destruction, modification, or curtailment of habitat or
range, and the other natural or manmade factors that may be affecting
the continued existence of Nassau grouper. However, because we have
determined that the information provided on overutilization and
inadequacy of existing regulatory mechanisms presents substantial
information indicating the petitioned action may be warranted, we do
not find a need to conduct a detailed analysis of the other submitted
information here.
Petition Finding
We have determined after reviewing the information contained in the
petition, as well as information readily available in our files, that
there is substantial information indicating that the petitioned action
may be warranted, based on the threats of overutilization for
commercial, recreational, scientific or education purposes, and
inadequacy of existing regulatory mechanisms. Because we have found
that substantial information was presented on the above factors, we
will commence a status review of the species. During our status review,
we will fully address all five of the listing factors set out in
section 4(a)(1). At the conclusion of the status review, we will
determine whether the petitioned action is warranted. As previously
noted, a ``may be warranted'' finding does not prejudge the outcome of
the status review.
Information Solicited
As required by section 4(b)(3)(B) of the ESA and NMFS' implementing
regulations (50 CFR 424.14(b)(2)), we are to commence a review of the
status of the species and make a determination within 12 months of
receiving the petition as to whether the petitioned action is
warranted. We intend that any final action resulting from this review
be as accurate and as effective as possible. Therefore, we open a 60-
day public comment period to solicit information from the public,
government agencies, the scientific community, industry, and any other
interested parties on the status of Nassau grouper throughout its range
including: (1) Status of historical and current spawning aggregation
sites; (2) historical and current distribution, abundance, and
population trends; (3) biological information (life history, genetics,
population connectivity, etc.); (4) management measures, regulatory
mechanisms designed to protect spawning aggregations, and enforcement
information; (5) any current or planned activities that may adversely
impact the species; and (6) ongoing or planned efforts to protect and
restore the species and their habitats. 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. Section 4(b)(1)(A) of the ESA and
NMFS' implementing regulations (50 CFR 424.11(b)) require that a
listing determination be made solely on the basis of the best
scientific and commercial data, without consideration of possible
economic or other impacts of the determination. During the 60-day
public comment period we are seeking information related only to the
status of Nassau grouper throughout its range.
Peer Review
On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife
Service, published a series of policies regarding listings under the
ESA, including a policy for peer review of scientific data (59 FR
34270). The intent of the peer review policy is to ensure listings are
based on the best scientific and commercial data available. The Office
of Management and Budget issued its Final Information Quality Bulletin
for Peer Review on December 16, 2004. The Bulletin went into effect
June 16, 2005, and generally requires that all ``influential scientific
information'' and ``highly influential scientific information''
disseminated on or after that date be peer reviewed. Because the
information used to evaluate this petition may be considered
``influential scientific information,'' we solicit the names of
recognized experts in the field that could take part in the peer review
process for this status review (see ADDRESSES). Independent peer
reviewers will be selected from the academic and scientific community,
tribal and other Native American groups, Federal and state agencies,
the private sector, and public interest groups.
References Cited
A complete list of references is available upon request from the
Southeast Regional Office, Protected Resource Division (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: October 2, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2012-24930 Filed 10-9-12; 8:45 am]
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