Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition To List the Caribbean Electric Ray as Threatened or Endangered Under the Endangered Species Act (ESA), 15947-15952 [2011-6692]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Notices]
[Pages 15947-15952]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6692]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 110309187-1185-01]
RIN 0648-XA105


Endangered and Threatened Wildlife; Notice of 90-Day Finding on a 
Petition To List the Caribbean Electric Ray as Threatened or Endangered 
Under the Endangered Species Act (ESA)

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

ACTION: Notice of 90-day petition finding.

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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list the 
Caribbean electric ray (Narcine bancroftii) as threatened or endangered 
under the ESA. We find that the petition does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted.

ADDRESSES: Copies of the petition and related materials are available 
upon request from the Chief, Protected Resources Division, Southeast 
Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701, 
or online from the Southeast Regional Office-Protected Resources 
Division Web site: https://sero.nmfs.noaa.gov/pr/ListingPetitions.htm.

FOR FURTHER INFORMATION CONTACT: Andrew Herndon, NMFS Southeast Region, 
727-824-5312, or Marta Nammack, NMFS Office of Protected Resources, 
301-713-1401.

SUPPLEMENTARY INFORMATION: On September 7, 2010, we received a petition 
from WildEarth Guardians to list the Caribbean electric ray as 
threatened or endangered under the ESA. The petitioner asserts that the 
species has declined 98 percent since 1972 in the northern Gulf of 
Mexico and that it faces threats from incidental taking as shrimp trawl 
bycatch and also from habitat degradation, including the BP oil spill 
in the Gulf of Mexico.

ESA Statutory and Regulatory Provisions and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 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 (Secretary) 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 it is found 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 
shall 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 (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 five section 
4(a)(1) factors: (1) The present or threatened destruction, 
modification, or curtailment of habitat or range; (2) overutilization 
for commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
and (5) 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 
(jointly, ``the Services'') (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. In 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 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.

[[Page 15948]]

    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 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.
    Many petitions identify risk classifications made by other 
organizations or agencies, such as the International Union on the 
Conservation of Nature, 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 may 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'' (https://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source information that the 
classification is based upon, in light of the standards on extinction 
risk and impacts or threats discussed above.

Information on Species Status and Extinction Risk

    The petition describes a few demographic factors specific to the 
Caribbean electric ray that could be indicative of its extinction risk, 
including: the abortion of embryos by gravid females when stressed, low 
survival rates of incidentally caught individuals, the species' 
relative rarity, and a critically low population count. The petition 
also states that the species' declines in the Gulf of Mexico and South 
Atlantic and habitat degradation are additional factors indicating the 
species is imperiled. These two factors are discussed in the ESA 
section 4(a)(1) factor analysis section below.
    The majority of the other demographic factors are discussed in the 
World Conservation Union's (IUCN) synopsis of the threats to the 
species, which the petitioner relies heavily upon to support the 
assertion that the Caribbean electric ray is imperiled. The IUCN 
provides the following rationale for assigning a critically endangered 
classification to the Caribbean electric ray: ``Electric rays are 
sluggish swimmers, with small home ranges, highly localized within an 
area and concentrating in surf zones adjacent to barrier beaches and on 
offshore sand bars in warm months and moving offshore in winter 
(Rudloe, 1989), making them susceptible to localized population 
depletion. The species is captured as bycatch by inshore shrimp trawl 
and other fisheries. It does not appear to be utilized and is discarded 
at sea, but survivorship rates are thought to be very low. Furthermore, 
abortion of embryos by captured gravid females is of concern. While 
specific catch data are lacking over most of the species' range, 
declines to 2 [percent] (95% confidence intervals 0.5 to 5%) of its 
baseline abundance in 1972 have been demonstrated in the Northern Gulf 
of Mexico. Shrimp trawl fishing is intense in that area and while the 
implementation of Turtle Exclusion Devices and Bycatch Reduction 
Devices has lowe[re]d overall bycatch rates, these mitigation measures 
are thought to be ineffective for this species due to it[s] size and 
sluggish swimming ability. Given the species' very low age at maturity 
it would take a very intense fishery to locally eliminate this species; 
however, this has been demonstrated in the Northern Gulf of Mexico. 
Further data showing declines of a similar magnitude are available from 
the U.S. east coast and Florida. While specific data are lacking, 
fishing activities, both artisanal and commercial in nature are 
generally intense and most often unregulated in shallow inshore waters 
of the remainder of the species' range. Given that large declines have 
been documented in U.S. waters where data are available, there is no 
reason to suspect that similar declines have not also occurred 
elsewhere across the species' range. The species is therefore globally 
assessed as Critically Endangered, based on observed declines in U.S. 
waters and inferred declines throughout the rest of the species' range. 
Information from outside U.S. waters is a priority (Carvalho et al., 
2007).''
    The IUCN could not identify a population trend for the Caribbean

[[Page 15949]]

electric ray. The petition cites the decline in species abundance in 
the northern Gulf of Mexico reported in Shepherd and Myers (2005) as 
evidence the population is in decline. Population decline can result in 
extinction risk that is cause for concern in certain circumstances 
(e.g., if the decline is rapid and/or below a critical minimum 
population threshold and the species has low resilience for recovery 
from a decline) (Musick, 1999). While the petitioner provides some 
evidence that the Caribbean electric ray population, at least in the 
Northern Gulf of Mexico, may have declined relatively rapidly, it fails 
to provide substantial information that the species is at a critically 
low population level or has a low resilience for recovery. An analysis 
of the apparent population decline is discussed below in the Other 
Natural or Manmade Factors section.
    The petitioner claims the Caribbean electric ray has such a 
critically low population count that ``it is increasingly vulnerable to 
extirpation from stochastic events.'' To determine that there is 
substantial information indicating that the species may be in danger of 
extinction now or in the foreseeable future due to small population 
size or stochastic events, information provided in the petition or 
existing in our files should be specific to the species and should 
reasonably suggest that these factors may be operative threats that act 
on the species to the point that it may warrant protection under the 
ESA. Broad statements about a generalized threat to species with small 
populations do not constitute substantial information that listing may 
be warranted. There is no information in our files indicating the 
species is at risk due to small population size or stochastic events, 
and the petition fails to provide any species specific information to 
that effect. Presumably, the petitioner believes the 98 percent decline 
in trawl abundance from 1972 to 2002 in the Northern Gulf of Mexico has 
reduced the population of the Caribbean electric ray to a critically 
low level (see the discussion under the Other Natural or Manmade 
Threats section for more on this decline). However, while a decline in 
relative catch per unit effort during fisheries independent monitoring 
(FIM) surveys likely does imply a decline in abundance, relative to 
1972 levels, there are no estimates of abundance in the petition or in 
our files. Thus, the claim of a critically low population count is 
unsupported. Data in our files, which is a continuation of the same 
dataset analyzed by Shepherd and Myers (2005), show that since 2002 
Caribbean electric rays have been documented in FIM cruises every year 
through 2010. Further, the Caribbean electric ray was the fifth (out of 
31) most common species recorded in the data presented in Shepherd and 
Myers (2005). While we do not have an estimate of population numbers, 
the data does indicate that the species is relatively common, and it 
occurs in high enough abundance to be detected repeatedly during annual 
sampling. Species that are vulnerable to stochastic events generally 
have small ranges (endemism), fractured ranges, or dependence on 
limited habitat features that are themselves vulnerable to stochastic 
events. The petition and the information in our files do not provide 
any support that vulnerability to stochastic events may be an 
extinction risk concern for the Caribbean electric ray.
    Outside the United States and the Northern Gulf of Mexico, shrimp 
fishing may be catching Caribbean electric rays, but beyond general 
statements on the quantities of bycatch produced during shrimp 
trawling, the petition fails to provide any information on what impact 
those fisheries may be having on the species. While we acknowledge that 
bycatch in foreign shrimp fisheries may be affecting the Caribbean 
electric ray, the petition provides no evidence that those interactions 
have somehow reduced Caribbean electric ray populations to critically 
low levels. There is also no information within our files to indicate 
that bycatch in foreign shrimp fisheries is having an effect on the 
Caribbean electric ray.
    While the onus of determining what a critically low population 
count may be for the Caribbean electric ray should not necessarily fall 
on the petitioner, the petitioner must provide at least some 
information on what a critically low population count may be. 
Otherwise, the statements that the Caribbean electric ray populations 
are critically low are nothing more than an unsupported conclusion. The 
petition fails to provide substantial evidence that the Caribbean 
electric ray's population is critically low throughout its range. Data 
in the petition and in our files suggest that in the northern Gulf of 
Mexico the Caribbean electric ray is relatively common and regularly 
encountered (NMFS unpublished data, Shepherd and Myers 2005).
    The petition also cites the abortion of embryos by gravid females 
caught in shrimp trawls as another characteristic that imperils the 
species by lowering its reproductive output. The petition provides no 
information on the rate at which gravid females are caught or what 
percent of gravid female actually abort embryos. Without such 
information it is impossible to determine what effect this trait has on 
the population. In slower maturing species, with small brood sizes and 
long gestation periods, the abortion of embryos could be particularly 
harmful because of the time and energy needed to produce another 
litter, potentially reducing the species' resiliency for recovery. 
However, unlike other ray and shark species, the Caribbean electric ray 
matures relatively early (females at approximately 2 years of age 
(Carvalho et al., 2007)), has a short gestation period, has relatively 
large litters, and has an estimated population doubling time ranging 
from 4.5-14 years (Froese and Pauly, 2010). Thus, the Caribbean 
electric ray has a relatively high resiliency for recovery.
    The petition states that ``Electric Rays are generally discarded at 
sea, and survivorship rates are believed to be quite low,'' citing the 
IUCN's assessment of the species (i.e., Carvalho et al., 2007). Review 
of that assessment provided no additional information, and we have no 
information in our files on the survivorship of incidentally caught 
Caribbean electric rays. Beyond the IUCN statement, the petition 
provides no additional information on the survival rates of Caribbean 
electric rays incidentally caught in shrimp trawls. Providing only a 
single reference and no additional information regarding the 
survivorship of discarded Caribbean electric ray does not represent 
substantial information that the species warrants listing under the 
ESA.
    The petition references the Reef Environmental Education 
Foundation's (REEF) database sightings of the Caribbean electric ray as 
evidence that ``sightings of the Electric ray are extremely rare in 
recent years.'' That database indicates the Caribbean electric ray is 
not commonly observed (i.e., less than 50 percent of the time), and 
when it is seen, it is usually in low abundance (i.e., usually only a 
single individual). As the petition points out, the Caribbean electric 
ray is relatively small (i.e., ~60 cm), buries itself in the sand or 
mud, and appears to prefer nearshore sandy habitats. Given these 
characteristics, it is not particularly surprising that a small, buried 
animal, commonly found away from reef habitats, is not reported 
frequently by divers. Further, there is no indication from these data 
that the number of sightings has declined over time. Additionally, 
Shepherd and Myers (2005) reported that the Caribbean electric ray was 
the fifth most common species encountered.
    While it is unclear how rare the species actually is, rarity alone 
is not an indication that a species faces an

[[Page 15950]]

extinction risk that is cause for concern. A species' rarity could be 
of concern if the species was distributed in small, isolated 
populations, or had a very restricted geographic range and was subject 
to specific habitat degradation. The information in the petition 
suggests the species is wide-ranging, found from North Carolina, 
through the Gulf of Mexico, to the north coast of South America, as 
well as in the Lesser and Greater Antilles (Carvalho et al., 2007). The 
petition argues that the Caribbean electric ray's habitat is being 
degraded, but does not provide information on any habitat degradation 
threats that are specific to the species (see discussion on habitat 
degradation below).
    Based on the information provided in the petition and available in 
our files on demographic factors of the Caribbean electric ray, we 
conclude there is not substantial information to indicate the species 
may be facing an extinction risk that is cause for concern.

Information on Threats to the Species

    We next evaluated whether the information in the petition 
concerning the extent and severity of one or more of the ESA section 
4(a)(1) factors suggests these impacts and threats may be posing a risk 
of extinction to the Caribbean electric ray that is cause for concern. 
The petition states that three of the five ESA section 4(a)(1) factors 
may affect the Caribbean electric ray. We evaluate those three factors 
below.

Present or Threatened Destruction, Modification, or Curtailment of 
Habitat or Range

    The petition states ``[the Caribbean electric ray] is threatened by 
habitat destruction from energy development, burgeoning human 
populations, and other pressures,'' claiming that ``though the 
[Caribbean electric ray]'s range is relatively large, localized habitat 
loss and degradation are threats to significant portions of the 
species' range.'' The petition also makes a general reference to how 
coastal areas of the United States and other nations are being 
threatened and destroyed, and non-specifically references studies 
suggesting these changes are ``affecting all species of sharks and rays 
(Camhi et al., 1998).'' The only specific statement provided in the 
petition regarding the extent of habitat degradation is a referenced 
statement from the proposed rule to list the largetooth sawfish under 
the ESA (75 FR 25174; May 7, 2010), which stated:

    Coastal habitats in the southern [U.S.] Gulf of Mexico region 
have experienced and continue to experience losses due to 
urbanization. Wetland losses in the Gulf of Mexico region of the 
U.S. [average] annual net losses of 60,000 acres (242.8 km\2\) of 
coastal and freshwater habitats from 1998 to 2004. Although wetland 
restoration activities are ongoing in this region of the U.S., the 
losses significantly outweigh the gains. These losses have been 
attributed to commercial and residential development, port 
construction (dredging, blasting, and filling activities), 
construction of water control structures, modification to freshwater 
inflows (Rio Grande River in Texas), and gas and oil related 
activities.

    The coastal habitats in the United States are being impacted by 
urbanization. However, the petition characterizes these impacts as 
generalized threats to the species. It fails to provide any information 
beyond these broad statements indicating how habitat degradation may be 
affecting the Caribbean electric ray to a point where it may warrant 
protection under the ESA. The only specific statements in the petition 
regarding habitat degradation appear to be almost entirely unrelated to 
the Caribbean electric ray. The species description provided in the 
petition states the Caribbean electric ray ``concentrat[es] in the surf 
zone adjacent to barrier beaches and offshore sand bars in warm months 
and moves offshore in winter (Rudloe 1989),'' and ``are unable to 
penetrate fresh water to any extent.'' Given this description, the 
petition fails to demonstrate why or how the loss of wetlands and 
freshwater habitats would affect a species commonly found in sandy 
marine habitats. Thus, enumeration of these threats does not constitute 
substantial information that listing may be warranted.
    The petition also discusses impacts from oil and gas exploration. 
It specifically mentions the Deepwater Horizon (DWH) oil spill, stating 
that following ``the April 2010 [BP] oil spill disaster, the threat of 
habitat modification and degradation is now more acute for Gulf of 
Mexico marine life, including the Caribbean electric ray.'' The 
petition concludes that ``the current oil spill situation, combined 
with the already-strained ecosystems in the Gulf of Mexico and coastal 
areas within the Ray's range, is a recipe for extinction, particularly 
given its current lack of ESA protection.'' The petition further states 
that ``drilling [for oil and gas] * * * subjects marine species, 
including the [Caribbean electric ray], to elevated risks.'' Finally, 
the petition references the IUCN's statement that ``pollution and oil 
exploration may also adversely affect the habitat of [the Caribbean 
electric ray], although no specific information is available (Carvalho 
et al., 2007),'' as supporting evidence of habitat degradation.
    We also acknowledge oil and gas exploration may adversely affect 
the marine environment. The DWH oil spill was an unprecedented 
disaster, likely impacting the marine ecosystem in ways that may not be 
fully known for decades. However, like the discussion regarding the 
effects of losing coastal habitat, the petition fails to provide any 
information on the specific effects to Caribbean electric rays beyond 
broad statements on the impacts of oil and gas exploration. Thus, these 
threats do not constitute substantial information that listing may be 
warranted.
    Beyond the impacts from habitat loss and oil and gas exploration, 
the petition also presents arguments that the destruction of coral reef 
habitats may be adversely affecting the Caribbean electric ray. The 
petition states that for ``localized [Caribbean electric ray] 
populations living in coral reef habitats, habitat degradation in the 
form of coral reef destruction is a serious threat.'' Reef habitats in 
the Gulf of Mexico and Caribbean are threatened by multiple factors, 
including: natural abrasion and breakage, anthropogenic abrasion and 
breakage, sedimentation, persistent elevated sea surface temperature, 
competition, excessive nutrients, and sea level rise. However, the 
petition fails to demonstrate to what extent the Caribbean electric ray 
even utilize these habitats and how impacts to coral reefs would cause 
specific adverse effects to the species such that protection under the 
ESA may be warranted. Thus, these broad statements about generalized 
threats to the species do not constitute substantial information that 
listing may be warranted.
    The petition also requests that we consider ``the effects of 
Florida red tide [in] limiting the range of [Caribbean electric ray] 
around this State and other areas.'' Asserting that ``[r]ed tide 
(Karenia brevia) is a local phenomenon in the Gulf of Mexico, along the 
Florida coast, and it impacts many species of fish and wildlife.'' 
While red tide events can cause deaths of aquatic species, possibly 
even the Caribbean electric ray, the petition fails to describe how and 
to what extent red tides may be affecting the species. More 
importantly, the petition fails to provide any compelling evidence 
regarding how the natural, localized phenomenon of red tide is 
threatening to destroy, modify, or curtail the habitat or range of the 
Caribbean electric ray. Thus, this does not constitute substantial 
information that listing may be warranted.

[[Page 15951]]

Inadequacy of Existing Regulatory Mechanisms

    The petitioner also maintains listing is warranted due to the 
inadequacy of existing regulatory mechanisms. The petition presents two 
basic tenets with regard to this claim: (1) There are no species 
specific regulations in place to protect the Caribbean electric ray; 
and (2) shrimp trawl bycatch is the primary threat to the Caribbean 
electric ray, and the regulations requiring the use of turtle excluder 
devices and bycatch reduction devices (TED/BRDs) are inadequate to 
protect the species because TED/BRDs do not effectively release 
Caribbean electric rays.
    The simple lack of species specific regulations does not 
necessarily mean a species' listing is warranted. To conclude that 
listing may be warranted because of inadequate regulatory mechanisms, 
there must be evidence that the lack of regulations has actually caused 
or is a contributing factor to the potential endangerment of the 
Caribbean electric ray. The petition fails to provide any supporting 
information on how the lack of species specific regulations has 
actually contributed to the endangerment of the Caribbean electric ray.
    The petition also claims that existing regulations requiring TED/
BRDs are inadequate to protect the Caribbean electric ray because TED/
BRDs are ineffective in releasing Caribbean electric rays. However, the 
petition fails to provide substantial information specific to the 
species regarding the release or retention rates of Caribbean electric 
rays in shrimp nets equipped with TED/BRDs. Instead, the petitioner's 
claim that TED/BRDs are ineffective is based on broad statements about 
finfish swimming ability related to size. Specifically, the petition 
states that ``[d]evices intended to reduce bycatch are ineffective for 
this species due to it[s] size and slow speed (Steele et al., 2002 at 
p. 349). As these researchers explain, this is because `larger fish 
were more likely to escape [shrimp trawl nets] than smaller fish, 
probably because swimming ability is positively associated with size in 
fishes.''' However, this statement is misleading as written. The Steele 
et al. (2002) study did not catch any ray species and did not comment 
on whether TED/BRDs would be effective in releasing the Caribbean 
electric ray. The entire quote reads: ``[w]ith some exceptions, larger 
fish were more likely to escape than smaller fish, probably because 
swimming ability is positively associated with size in fishes (Wardle, 
1993)'' (Steele et al., 2002); the quote is not specific to the 
Caribbean electric ray. Beyond this non-specific statement, the 
petition fails to present any information to suggest that TED/BRDs are 
ineffective in releasing Caribbean electric ray.
    Conversely, information from the NMFS technical experts who develop 
and test TED/BRDs indicate that TED/BRDs could be effective in 
releasing smaller animals depending on their orientation (J. Mitchell 
NMFS, to A. Herndon NMFS, pers. comm., 2010). NMFS' research on the 
effectiveness of TED/BRDs has not collected length frequency data for 
rays captured and released during those tests. However, NMFS scientists 
involved in that research indicate that for an animal the size of the 
Caribbean electric ray (i.e., ~60 cm), the exclusion rate might be as 
high as 75 percent for a bottom opening TED, but likely lower (i.e., 
less than 35 percent) for a top opening TED (J. Mitchell NMFS, to A. 
Herndon NMFS, pers. comm., 2010). However, no specific data are 
available on the effectiveness of TED/BRDs in releasing Caribbean 
electric rays from shrimp trawls.
    The petition also fails to acknowledge any potential beneficial 
effects from the implementation of TED requirements in most shrimp 
fisheries in the mid-1990s. Given the information available, mandatory 
TED requirements likely have had at least some beneficial effect.

Other Natural or Manmade Factors

    The petition states bycatch is the primary natural or manmade 
factor affecting the Caribbean electric ray's continued existence. More 
specifically, it states ``[t]he decline of the ray by 98 [percent] 
since 1972 in the Northern Gulf of Mexico is likely primarily caused by 
shrimp trawling (Carvalho et al., 2007),'' citing ineffective TED/BRDs 
and intense shrimping effort as causative factors. However, the 
petition's conclusion appears to be based on misleading statements and 
invalid assumptions.
    The petition asserts that shrimp trawling is likely the primary 
cause of the 98 percent decline of the ray since 1972 in the Northern 
Gulf of Mexico. This statement is misleading. The decline referenced by 
the petition is from a study by Shepherd and Myers (2005) that 
estimated the Caribbean electric ray's relative abundance from FIM 
survey data available from 1972 to 2002. The data presented in that 
study show what appears to be a significant decline in mean 
standardized catch per tow (MSCPT) of the Caribbean electric ray from 
1972 to 1973. However, those data also show that from 1973 through 2002 
the MSCPT for the Caribbean electric ray appears to remain essentially 
stable. The petitioner's statement regarding the decline of the species 
since 1972 does not mention the stable MSCPT from 1973 to 2002. Thus, 
the assertion regarding population decline appears to be based on a 
decline solely between two data points from 1972 to 1973.
    Although questionable, we cannot dismiss the petition's conclusion 
that the decline in MSCPT from 1972 to 1973 was evidence of a 
population decline. However, the data provided by the petitioner also 
show that no additional decline in relative abundance appears to have 
occurred after 1973. The data in our files also indicate the Caribbean 
electric ray is still encountered consistently during FIM trawl 
projects. Based on this information, we do not believe the information 
presented on the decline in MSCPT from 1972 to 1973 is evidence that 
the species is currently facing an extinction risk that is cause for 
concern.
    The petition also asserts ``[s]imilar high rates of decline, around 
[a] 95 [percent] decrease, have occurred in the United States coastal 
areas between Cape Canaveral, Florida, and Cape Hatteras, North 
Carolina,'' citing the Shepherd and Myers (2005) study. However, no 
such statement could be found in the referenced study.
    The petitioner's statements regarding the ineffectiveness of TED/
BRDs were addressed in the preceding section.
    The petition also provided outdated statistics on the total level 
of shrimp fishing occurring annually in the United States (4-5 million 
hours annually; Shepherd and Myers (2005)) in support of its argument 
that shrimp fishing is intense in areas where the Caribbean electric 
ray is present. While the amount of fishing effort reported by Shepherd 
and Myers (2005) may have been correct, the petitioner failed to 
acknowledge the drastic changes in the shrimp fishery, particularly in 
the northern Gulf of Mexico. Since 2001, the total annual amount of 
shrimp fishing effort in the Gulf of Mexico has declined each year with 
the exception of 2009. Effort has declined from a high of approximately 
6.7 million hours in 2001 to approximately 2.1 million hours in 2008 
(NMFS unpublished data); a reduction of over 68 percent. Effort 
rebounded slightly in 2009 to 2.6 million hours (NMFS unpublished 
data), approximately 61 percent less effort than was documented in 
2001. External factors such as low shrimp prices, rising fuel costs, 
competition with imported shrimp products, and the impacts of 
hurricanes in the Gulf of

[[Page 15952]]

Mexico (particularly Hurricanes Katrina and Rita) are all factors that 
have acted to reduce fishing effort (GMFMC, 2007). This reduction in 
effort has likely reduced the potential threat of shrimp trawling to 
the Caribbean electric ray. Not acknowledging these reductions in 
effort is misleading and mischaracterizes the current potential threat 
of shrimp trawling.
    The petitioner also claims that ``[i]ntense shrimp fisheries exist 
in multiple other countries surrounding the Gulf of Mexico as well, 
within the [Caribbean electric ray's] range.'' The petition concludes 
that ``[s]ince fishing activities are similarly intense and most often 
unregulated in these areas, similar declines to that of the United 
States are likely across the species' range (Carvalho et al., 2007).'' 
Information provided in the petition and readily available in our files 
does not support these statements.
    Information provided in the petition on the range of the species 
shows the species occurring along the Atlantic coasts of Mexico, 
Belize, Costa Rica, Panama, and Colombia, as well as in Venezuela, 
Cuba, Jamaica, and the Lesser Antilles. Of the countries listed, only 
Mexico and Venezuela even appeared on the Food and Agricultural 
Organization's list of the top 35 shrimp fishing nations from 2000-2005 
(Gillet, 2008). Subsequent to the publication of that list, commercial 
shrimp fishing in Venezuela has been banned. Likewise, Belize has also 
recently banned all industrial shrimp fishing. While Costa Rica, 
Panama, and Colombia do have active commercial shrimp fisheries, they 
fish primarily in the Pacific Ocean where the Caribbean electric ray is 
not found. The state of the commercial shrimp fishery in Cuba is 
unknown, but the political and economic climate within the country 
makes it unlikely to be a source of great fishing effort. In the Lesser 
Antilles, only Trinidad and Tobago has a commercial shrimp fishery (M. 
Barnette, NMFS, to A. Herndon, NMFS, pers. comm., 2010).
    Based on the preceding information, it appears extremely unlikely 
that the Caribbean electric ray is facing intense shrimp fisheries in 
multiple other countries within the Caribbean electric ray's range. In 
fact, statements regarding the Caribbean electric ray's exposure to 
intense shrimp fisheries outside the United States are misleading. In 
the Caribbean electric ray's range, only Mexico has a sizeable shrimp 
fishery. The Mexican shrimp fishery has experienced the same limiting 
factors as the U.S. fleet, and has declined to a similar degree over 
the last decade (M. Barnette, NMFS, to A. Herndon, NMFS, pers. comm., 
2010). Thus, the petition does not accurately represent the potential 
threat posed by shrimp trawling throughout the range of the species. 
The available information does not indicate that the potential impacts 
from shrimp fisheries have caused declines or likely contributed to the 
endangerment of the species throughout the rest of its range. 
Therefore, this threat does not constitute substantial information that 
listing may be warranted.
    In summary, the petitioner claims that shrimp trawling has caused 
Caribbean electric ray declines in the Gulf of Mexico and South 
Atlantic, and is likely causing declines elsewhere, primarily because 
of ineffective TED/BRDs and intense fishing effort. Based on 
information presented in the petition and contained within our files, 
these statements are either unsubstantiated or inaccurate 
representations of the available data. Thus, the petition does not 
provide substantial information that listing may be warranted.
    In addition to the potential threat from shrimp fishing, the 
petitioner also claims that the species is prone to a specific type of 
infection when in captivity. While the information provided by the 
petition does suggest that the species is prone to infection, the 
petition fails to explain why the species' susceptibility to infection 
in captivity suggests a threat to wild populations. Thus, the existence 
of disease in captive animals does not constitute substantial 
information that listing may be warranted.

Petition Finding

    After reviewing the information contained in the petition and 
information readily available in our files, we conclude the petition 
fails to present substantial scientific or commercial information 
indicating the petitioned action may be warranted.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Southeast Regional Office 
(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: March 17, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-6692 Filed 3-21-11; 8:45 am]
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