Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Nassau Grouper as Threatened or Endangered Under the Endangered Species Act, 61559-61562 [2012-24930]
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Federal Register / Vol. 77, No. 196 / Wednesday, October 10, 2012 / Proposed Rules
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[FR Doc. 2012–24805 Filed 10–9–12; 8:45 am]
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identified by Docket Nos. FEMA–B–
1069 and B–1122, to Luis Rodriguez,
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Management Agency, 500 C Street SW.,
Washington, DC 20472, (202) 646–4064,
or (email)
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DATES:
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Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–4064, or (email)
Luis.Rodriguez3@fema.dhs.gov.
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at 74 FR 47169 and 75 FR 29296,
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[FR Doc. 2012–24855 Filed 10–9–12; 8:45 am]
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AGENCY:
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SUMMARY:
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Endangered and Threatened Wildlife;
90-Day Finding on a Petition To List
Nassau Grouper as Threatened or
Endangered Under the Endangered
Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
AGENCY:
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61559
Notice of 90-day petition
finding, request for information.
ACTION:
We (NMFS) announce a 90day 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 https://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 https://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:
SUMMARY:
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
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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
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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 90day 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
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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 90day 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
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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 latematuring (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
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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;
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61561
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
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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.
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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
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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]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 120706221–2481–01]
RIN 0648–XC106
Atlantic Highly Migratory Species;
2013 Atlantic Shark Commercial
Fishing Season
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
This proposed rule would
establish opening dates and adjust
quotas for the 2013 fishing season for
the Atlantic commercial shark fisheries.
Quotas would be adjusted as allowable
based on any over- and/or
underharvests experienced during the
2011 and 2012 Atlantic commercial
shark fishing seasons. We propose to
keep the porbeagle shark fishery closed
in 2013 due to the small quota and
SUMMARY:
E:\FR\FM\10OCP1.SGM
10OCP1
Agencies
[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 https://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 https://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]
BILLING CODE 3510-22-P