[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Notices]
[Pages 7820-7822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3138]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 110131074-1069-02]
RIN 0648-XZ69


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
to List the Texas Pipefish 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.

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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list the 
Texas pipefish (Syngnathus affinis) as threatened or endangered under 
the Endangered Species Act (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 Assistant Regional Administrator, Protected 
Resources Division, Southeast Regional Office, NMFS, 263 13th Avenue 
South, St. Petersburg, FL 33701, or online from the NMFS SERO Web site: 
http://sero.nmfs.noaa.gov/pr/ListingPetitions.htm

FOR FURTHER INFORMATION CONTACT: Calusa Horn, NMFS Southeast Region, 
727-824-5312, or Lisa Manning, NMFS Office of Protected Resources, 301-
713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    On September 1, 2010, we received a petition from the WildEarth 
Guardians to list Texas pipefish (Syngnathus affinis) as threatened or 
endangered under the ESA. Copies of this petition are available from us 
(see ADDRESSES, above).
    In 2007, WildEarth Guardians (then known as the Forest Guardians) 
petitioned the U.S. Fish and Wildlife Service (USFWS) to list 475 
species in the Southwestern United States as threatened or endangered 
under the ESA, including the Texas pipefish (Syngnathus affinis). The 
request was to list all full species in USFWS' Southwest Region ranked 
as ``critically imperiled'' (G1) or ``critically imperiled/imperiled'' 
(G1G2) by the organization NatureServe. On January 6, 2009, the USFWS 
published a negative 90-day finding for the Texas pipefish and 269 
other species included within the petition (74 FR 419). (The Texas 
pipefish is a marine fish that primarily uses seagrass habitat within 
shallow, coastal areas. Marine fishes typically fall under NMFS 
jurisdiction pursuant to section 4(2) of the ESA, the Reorganization 
Plan No. 4 of 1970 and a 1973 memorandum of understanding between the 
USFWS and the NMFS.) The USFWS determined that the information 
presented by the petitioner on the Texas pipefish contained only 
``basic information on the range of the species, based on some level of 
survey effort. Habitat was frequently mentioned as well as other 
aspects of the species' biology, such as food habitats. Population size 
or abundance, if addressed, was rarely quantified, and the database 
instead used descriptors such as large, small, or numerous. The 
available information we [USFWS] reviewed did not address specific 
threats to the species'' (74 FR 419). With respect to application of 
the listing factors in ESA section 4(a)(1) to the Texas pipefish, USFWS 
concluded: no information was presented on threats to the species or 
their habitats regarding the first three factors; the petitioner's 
claim that more protection could be afforded to the species if it was 
listed under the ESA did not establish inadequate regulatory 
mechanisms; and assertions of limited distribution and small population 
size alone did not establish a natural or manmade factor affecting the 
species' continued existence. The USFWS concluded that the petition did 
not present substantial scientific or commercial information to 
indicate that the petitioned action may be warranted for the Texas 
pipefish (74 FR 419; January 6, 2009).

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 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-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 (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

[[Page 7821]]

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.
    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.'' (http://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.

Analysis of the Petition

    The petition states that the Texas pipefish is imperiled, extremely 
rare, could be extinct, and that the primary threat contributing to the 
Texas pipefish's endangerment is habitat degradation. The petition 
cites the decline of seagrasses utilized by pipefish as a result of 
anthropogenic activities, such as dredging, prop scarring, coastal 
development, non-point source pollutants, nutrient loading, and oil 
spills, and states that these activities are contributing to the 
endangerment of the Texas pipefish. The petitioner also asserts that 
the species' biological constraints, such as small population size and 
reproductive traits increase its risk of extinction, and that the 
species is inadequately protected by regulatory mechanisms from the 
threats it faces. In summary, the petition argues that at least three 
of the five causal factors in section 4(a)(1) of the ESA are negatively 
impacting the continued existence of the Texas pipefish: present or 
threatened destruction, modification, or curtailment of its habitat or 
range; inadequacy of existing regulatory mechanisms; and other natural 
or manmade factors, particularly the biological constraints of the 
species' life history.
    We evaluated whether the petition presented the information 
required for a positive finding under 50 CFR 424.14(b)(2). The petition 
does not include any information on population size, past or present, 
or information on the status of the species, over all or a significant 
portion of its range and none of this information is available in our 
files. The petition provided some information on the historical 
geographic occurrences of the existing nominal museum specimens. The 
petition clearly indicates the administrative measure recommended and 
gives the scientific and common name of the species involved; contains 
a narrative justification for the recommended measure, describing the 
distribution of

[[Page 7822]]

the species, as well as the threats faced by the species; and 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. However, we believe that 
the information in the petition indicates that Syngnathus affinis is 
not a species eligible for listing under the ESA, as we discuss in 
detail below.

Status of Syngnathus affinis

    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). 
Historically the Texas pipefish has been considered a distinct species 
(Syngnathus affinis) or a subspecies of the Northern pipefish 
(Syngnathus fuscus); however the petition does not support a ``may be 
warranted'' finding because the best available scientific information 
indicates that specimens previously identified as the ``Texas 
pipefish'' are actually all phenotypic variants of the common Gulf 
pipefish.
    The petition notes that a recent scientific publication questioned 
whether the Texas pipefish (Syngnathus affinis) is distinct from the 
Gulf pipefish (Syngnathus scovelli) (Tolan 2008). Tolan (2008) explains 
that prior to his study, S. affinis was only known from a small number 
of museum specimens, that no new collection of any specimen purported 
to be the Texas pipefish had been recorded in over 30 years, and that 
``considerable confusion'' surrounds the taxonomic status of the 
entity. The nominal species was based on a single specimen bought at a 
London auction, and recorded as originating from Louisiana. Early 
discussion of ``short-snouted'' pipefishes from the western Gulf of 
Mexico included two species, Syngnathus fuscus and S. scovelli, 
differentiated by total number of trunk rings and dorsal fin rays. A 
subspecies designation of S. fuscus affinis was adopted by authors of 
two separate studies in 1965 and 1977. The subspecies designation was 
first dropped in 1982 in a study distinguishing S. affinis and S. 
fuscus in the Gulf of Mexico. Other authors subsequently combined all 
specimens of short-snouted pipefishes in the Gulf of Mexico as S. 
affinis, eliminating this region from the range of S. fuscus.
    In his study, Tolan (2008) located new museum specimens of the 
Texas pipefish that ``call into question the limited distribution range 
of S. affinis, with this `species' now recorded from around the 
northern Gulf of Mexico,'' which is a range ``fully encompassed by the 
known range of S. scovelli (Dawson 1982).'' Tolan (2008) conducted an 
analysis of similarity (ANOSIM), comparing meristic (number of trunk 
rings, tail rings, total rings, subdorsal trunk rings, subdorsal tail 
rings, total subdorsal rings, and dorsal fin ray counts) and 
morphometric characteristics (standard length, head length, snout 
length, snout depth, snout depth-to-length, trunk depth, anal depth, 
pectoral depth, and dorsal base length) of all known specimens 
nominally identified as Syngnathus affinis to specimens of Syngnathus 
scovelli that the author collected for the study from areas where S. 
affinis had previously been recorded as collected. The results revealed 
``a low degree of separation'' between meristic characters of the two 
species. The analysis detected differences in mean values for meristic 
characteristics but found there was a high degree of overlap in the 
ranges of the counts. The ANOSIM performed by Tolan (2008) failed to 
detect ``any consistent pattern of differences'' between the two groups 
based on morphometric characters. Based on the ``plasticity of meristic 
characters within western Atlantic species of Sygnathus,'' Tolan 
suggests that the specimens examined in his study ``represent different 
phenotypes of S. scovelli'', and that specimens identified as S. 
affinis ``most likely represent individuals at the upper limits of 
these features.'' Tolan concluded, ``Based on the multivariable 
techniques used for this study, there appears to be little 
justification for recognizing S. affinis and S. scovelli as distinct 
species, as the former is shown herein to be indistinct from the 
latter.''
    The petition cited several classifications made for S. affinis by 
other organizations (American Fisheries Society, ``endangered''; 
NatureServe, ``critically imperiled''), but none of these examines the 
taxonomic uncertainty of S. affinis or provides scientific information 
to suggest it is a valid species, subspecies or DPS. Therefore, the 
only credible scientific information referenced in the petition 
suggests that S. affinis is not a valid ``species'' as defined by the 
ESA. The petition correctly cites Tolan (2008) as stating that before 
S. affinis is invalidated as a nominal taxon, ``extensive field work 
must be conducted in the western Gulf of Mexico to document that there 
is indeed only a single specimen of short-snouted Syngnathus within the 
area.'' Tolan suggests that such field work should be conducted over a 
longer timeframe than the 6 months devoted to his study, as a step in 
assigning the proper name to the taxon according to the Principles of 
Priority of the International Commission of Zoological Nomenclature 
(ICZN 2000). However, as has been noted in other listing 
determinations, NMFS is not required to ignore scientific information 
that contrasts with taxonomic nomenclature. Our regulations state that, 
``In determining whether a particular taxon or population is a species 
for the purposes of the Act, the Secretary shall rely on standard 
taxonomic distinctions and the biological expertise of the Department 
and the scientific community concerning the relevant taxonomic group'' 
(50 CFR 424.11(a)). Under this provision, NMFS must apply the best 
available science even when it indicates that taxonomic classifications 
are outdated or wrong.

Petition Finding

    After reviewing the information contained in the petition, we find 
that the best available information supports the conclusion that the 
Texas pipefish is not a ``species'' eligible for listing under the ESA. 
Over the past 30 years no specimens identified as S. affinis have been 
collected and the best scientific information presented in the petition 
indicates that the Texas pipefish and the Gulf pipefish are not 
separate species. Rather, the existing nominal museum specimens appear 
only to be misidentified phenotypes of the Gulf pipefish, based on the 
plasticity and high degree of overlap in identifying characteristics. 
After reviewing the information contained in the petition and in our 
files, we have concluded that the petition fails to present substantial 
scientific or commercial information indicating that 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: February 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-3138 Filed 2-10-11; 8:45 am]
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