[Federal Register Volume 77, Number 196 (Wednesday, October 10, 2012)]
[Proposed Rules]
[Pages 61559-61562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24930]



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.


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 

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 
    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 

727-824-5350; or Lisa Manning, NMFS Office of Protected Resources, 301-



    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), 

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 
    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 
    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, 
    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).


    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]