[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Notices]
[Pages 25687-25692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10498]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 120409406-2406-01]
RIN 0648-XA809


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
to List Speckled Hind 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 
speckled hind (Epinephelus drummondhayi) as threatened or endangered 
under the Endangered Species Act (ESA). We find that the petition does 
not present substantial scientific 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 at: http://sero.nmfs.noaa.gov/pr/ListingPetitions.htm

FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS Southeast Region, 
727-824-5312, 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 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 are providing species-specific 
findings on this petition. This finding addresses WildEarth Guardians' 
petition to list speckled hind. A negative finding for goliath grouper 
was made on June 1, 2011 (76 FR 31592), while the Nassau grouper 
finding is currently under development.

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 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 NMFS and 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 five 
section 4(a)(1) factors: (A) The present or threatened destruction, 
modification, or curtailment of habitat or range; (B) overutilization 
for commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
and (E) 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 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

[[Page 25688]]

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 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 (IUCN), the American Fisheries Society (AFS), 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.

Speckled Hind Species Description

    The speckled hind is a moderately large member of the sea bass or 
serranid family found in the Atlantic Ocean. Speckled hind inhabit 
deep-water reefs along the Atlantic coast of the southeast United 
States from North Carolina, to the Florida Keys, in the waters around 
Bermuda, and in the northern and eastern Gulf of Mexico (Chuen and 
Huntsman, 2006). Speckled hind are a deep-water grouper with adults 
inhabiting offshore rocky ledges and sea mounts in depths of 25-400 m, 
but most commonly found in waters between 60 and 120 m.
    Speckled hind are slow growing, protogynous hermaphrodites (i.e., 
spawning as a female, then later changing sex and spawning as a male), 
that reach a maximum size of 43 inches (1,096 mm) total length (TL), 
and a maximum age of at least 25 years (Matheson and Huntsman 1984). 
Females mature at 4 to 5 years of age and 18-24 inches (457-610 mm) in 
length, and transition to males at 7 to 14 years of age (Chuen and 
Huntsman 2006). Speckled hind form large spawning aggregations from May 
to October in specific areas throughout their range.

Analysis of the Petition

    We evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(b)(2). The petition states the 
administrative measures recommended, and provides the scientific and 
common name of the species. The petition includes a detailed narrative 
justification for the recommended measure, including some information 
on numbers of the species, historical geographic occurrences of the 
species, and threats faced by the species. The petition provides some 
information relevant to the status of the species. The petition 
includes supporting references and documentation. Speckled hind is 
taxonomically a species and thus is an eligible entity for listing 
under the ESA. The petition states that speckled hind are imperiled and 
that the primary threat contributing to the speckled hind's 
endangerment is overfishing, whether intentionally or as bycatch. The 
petitioner also asserts that the species' biological constraints, such 
as its reproductive traits (spawning aggregations) and its preferred 
habitat depth, increase its risk of extinction. The petition states 
that at least four of the five causal factors in section 4(a)(1) of the 
ESA are, in combination, adversely affecting the continued existence of 
speckled hind: (A) Present

[[Page 25689]]

or threatened destruction, modification, or curtailment of its habitat 
or range; (B) overutilization for commercial and recreational purposes; 
(D) inadequacy of existing regulatory mechanisms; and (E) other natural 
or manmade factors, including life history characteristics. The 
petition also requests an inquiry into the validity of a distinct 
population segment (DPS) for speckled hind.

Information on Extinction Risk and Status

    The petition cites classifications made by NMFS, the International 
Union for Conservation of Nature (IUCN), the American Fisheries Society 
(AFS), and NatureServe to support its assertion that the speckled hind 
is imperiled. In 1997, NMFS added speckled hind to its Candidate 
Species list. At that time, a Candidate Species was defined as any 
species being considered by the Secretary of Commerce (Secretary) for 
listing as an endangered or a threatened species, but not yet the 
subject of a proposed rule (49 FR 38900; October 1, 1984). In 2004, 
NMFS created the Species of Concern list (69 FR 19975; April 15, 2004) 
to encompass species for which we have some concerns regarding their 
status and threats, but for which insufficient information is available 
to indicate a need to list the species under the ESA. Twenty-five 
Candidate Species, including speckled hind, were transferred to the 
Species of Concern list at that time because they were not being 
considered for ESA listing and were better suited for Species of 
Concern status due to some concerns and uncertainty regarding their 
biological status and threats. The Species of Concern status does not 
carry any procedural or substantive protections under the ESA. Our 
rationale for including speckled hind on the Species of Concern list 
included an unknown population size with information that suggested a 
decline in mean size, mean age, and percentage of males in the South 
Atlantic.
    The IUCN listed speckled hind as critically endangered in 2006, a 
status assigned to species facing an extremely high risk of extinction 
in the wild, based on: ``considerable concern about its present and 
future status given that management action may be too little and not 
effective,'' and ``Declines in the recent past have been extreme, 
fishing effort is not known, and there is concern that much other 
fishing effort is moving offshore and will increasingly impact this 
species.'' The IUCN explained the critically endangered status for 
speckled hind instead of a lower status was justified in part because: 
(a) There was no good evidence of a change in condition since the last 
assessment was conducted; (b) the species continues to be taken as 
bycatch and is not protected from this by current regulations; (c) a 
precautionary approach is being taken; and (d) the species has a suite 
of life history characteristics that are often associated with higher 
extinction risk.
    The AFS developed its extinction risk criteria for marine fishes in 
part as a reaction to IUCN's criteria (Musick, 1999). The AFS (Musick 
et al., 2000) classified speckled hind in the United States as 
``endangered,'' which they define as a species with a ``high risk of 
extinction in the wild in the immediate future (years),'' and states 
the species is in a ``steady and drastic decline in abundance, [and] 
males [are] rare (G. R. Huntsman, pers. observ.).'' Finally, the AFS 
states speckled hind is particularly vulnerable ``to commercial and 
recreational overfishing (Huntsman et al. 1999).''
    NatureServe's vulnerable classification is given to species that 
are ``at moderate risk of extinction or elimination due to a restricted 
range, relatively few populations, recent and widespread declines, or 
other factors.'' NatureServe specifically describes the range and 
imperilment of speckled hind as: ``range-wide population is not known; 
the number of occurrences is not known, but may be limited due to 
intense fishing throughout at least much of the U.S. western Atlantic; 
absent, disappearing, or becoming increasingly rare throughout range; 
considered extremely threatened by recreational and commercial fishing 
throughout most of range,'' as reasons for its vulnerable 
classification of speckled hind.
    While the cited classifications, including our own Species of 
Concern listing include a discussion of extinction risk for speckled 
hind, these risks are largely based on data for the South Atlantic 
portion of the species' range. Identified risks to the species in the 
South Atlantic include a decline in mean size and mean age in the 
recent past, and a low percentage of males within the population. 
Additional information in our files shows that changes in life history 
(e.g., earlier maturity) of the species may be due to continued over-
exploitation in the South Atlantic region and low reproductive 
resilience due to diminished reproductive capacity (Ziskin, 2008). All 
of this information applies to the South Atlantic only. Similar 
evidence of extinction risk for speckled hind in the Gulf of Mexico was 
not presented in the petition and does not exist in our files.
    The petition describes demographic factors specific to speckled 
hind that could be indicative of its extinction risk. These include a 
declining population trend with declines in mean size, mean age, and 
percentage of males. The petition also asserts that the species' low 
resilience to fishing and its minimum population doubling time are 
contributing to the species' extinction risk, and information to 
support this contention is provided.
    Population decline can result in extinction risk that is cause for 
concern in certain circumstances, for instance 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). The 
petition states that fishing has likely resulted in a population 
decline of speckled hind, and uses commercial landings and recreational 
catch data from the South Atlantic to document the decline. The 
petition does not present landings or length data from the Gulf of 
Mexico.
    The lack of data from the Gulf of Mexico is problematic when 
determining the status of the speckled hind population in the Southeast 
United States. The speckled hind population in the Southeast United 
States is thought to be one continuous population extending from the 
Gulf of Mexico around the Straits of Florida and into the South 
Atlantic. While there are spawning aggregations and a reproductively 
active population in the South Atlantic, the South Atlantic also 
receives a considerable influx of recruits that originated in the Gulf 
of Mexico and were transported to the South Atlantic region via the 
Straits of Florida and the Gulf Stream.
    In the Gulf of Mexico, data in our files show that landings have 
been fairly steady with a slight increase from 1991 through 2009 
(Southeast Fisheries Science Center (SEFSC) Annual Catch Limit (ACL) 
dataset, 2011). During this period, landings averaged approximately 
61,000 pounds with a low of 25,000 pounds in 1993 and a high of 103,000 
pounds in 2004. Additionally, trip intercept program (TIP) data show a 
slightly increasing trend in mean length for the species in the Gulf of 
Mexico (SEFSC TIP dataset, 2011). From 1984 to 2011, average mean 
length of fish sampled from the Gulf of Mexico was 57 cm with a low of 
48 cm in 1994 and a high of 65.2 cm in 1997. These data suggest the 
speckled hind population in the Gulf of Mexico is more stable than in 
the South Atlantic.
    The fisheries data described in the petition include a decline in 
speckled hind landings in the southeastern

[[Page 25690]]

United States from 1986 to 1995 (Parker and Mays, 1998; reproduced in 
NMFS, 2010), reductions in average size and age in the South Atlantic, 
and conclusions from a study documenting that speckled hind were caught 
in North Carolina in the 1970s but not in 2005-2006 (Rudershausen et 
al., 2008). Information in our files includes a number of reports, 
mostly associated with our fishery management actions under Magnuson-
Stevens Fishery Conservation and Management Act (MSFCMA), noting a 
similar decline in catch of speckled hind in the South Atlantic from 
1986 to 2009. The characterization of the IUCN assessment, as well as 
the landings data in the petition, however, includes a misunderstanding 
or misrepresentation of landings data. The 1986 to 1995 time series 
data in Parker and Mays (1998) and in the IUCN assessment refer only to 
the area between Cape Hatteras, North Carolina and Key West, Florida. 
For purposes of NMFS' fishery management, this area is within the 
``South Atlantic'' region. Within the South Atlantic, there has been a 
one-fish-per-vessel trip restriction since 1994. While the petition 
references classifications and conclusions that are based on declines 
in landings, these references do not acknowledge the regulatory 
mechanisms that led to this perceived decline in the landings and do 
not acknowledge a major portion of the landings in the Southeast that 
come from the Gulf of Mexico. Landings in the South Atlantic in 1993 
were approximately 20,270 pounds, but in 1994 (the first year of the 
one fish per vessel limit) declined to approximately 10,042 pounds, and 
from 1995-2009 averaged approximately 5,240 pounds (SEFSC ACL dataset, 
2011 \1\), indicating the one fish per trip regulation was effective in 
decreasing harvest of speckled hind in the South Atlantic. Fish not 
retained are not considered when calculating landings, and discarded 
catch is often not reported or is under-reported. Thus, the decline in 
landings for speckled hind reflects the regulations affecting the 
retention of the species by fishermen and not an actual population 
trend.
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    \1\ The landings data for 1986-1995 presented here differ 
slightly from those on the NMFS Species of Concern fact sheet for 
speckled hind; an error in our fact sheet was detected by the SEFSC 
during review of this petition. Correct landings data are presented 
here.
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    The petition states that with ``millions of licensed fisherpeople 
in the southeastern United States and Gulf, and the numerous trips 
these fishers are likely to make during a given season, the vessel 
limit does little to actually protect this species.'' Although fishers 
may take numerous trips in a year, those actually targeting speckled 
hind are extremely rare. For example, from 2005-2010, only 0.0009 
percent of recreational trips in the Gulf of Mexico and South Atlantic 
targeted speckled hind (Marine Recreational Fishing Statistical Survey 
(MRFSS)). Additionally, the South Atlantic Fishery Management Council 
(SAFMC) has prohibited the possession of speckled hind entirely since 
January 31, 2011, eliminating their retention as a target species. 
While rarely targeted, speckled hind are captured as bycatch when 
fishermen target other species. Thus, bycatch was a causative agent in 
the apparent decline of the population in the South Atlantic (Ziskin 
2008). However, the SAFMC recognized the potential impacts of bycatch 
in the South Atlantic and in 2009 created 8 marine protected areas 
(MPAs) where fishing is prohibited. This was designed to protect 
vulnerable deep-water species, such as speckled hind. An additional 
management measure, the closure of fishing for species in the snapper-
grouper complex in waters greater than 240 feet, was also initially 
implemented to curtail bycatch of speckled hind. After further 
analysis, it has become apparent that the closure provided no benefit 
to speckled hind because the species is not present in waters greater 
than 240 ft. Therefore, the SAFMC has proposed an action to rescind the 
closure of waters greater than 240 feet to fishing for species in the 
snapper-grouper complex. (The proposed rule for rescinding the closure 
may be found in the Federal Register at 76 FR 78879; December 20, 2011; 
the final rule is currently under review).
    We conclude that the petition and information in our files on 
demographic factors of speckled hind do not present substantial 
information to indicate the species may be facing an extinction risk 
level that is cause for concern.

Distinct Population Segment

    The petition requested an inquiry into the validity of a DPS for 
speckled hind. A DPS is a vertebrate population or group of populations 
that is discrete from other populations of the species and significant 
in relation to the entire species. The ESA provides for listing 
distinct population segments of vertebrate species, such as speckled 
hind. The petition, however, fails to present any information or 
rationale for considering DPSs of speckled hind. Additionally, no 
information exists in our files that would indicate speckled hind 
populations meet the criteria for identification as DPSs pursuant to 
the DPS Policy. Available information suggests the population of 
speckled hind is a continuous population from the Gulf of Mexico, 
through the Straits of Florida, and into the South Atlantic. Thus, 
listing speckled hind as distinct populations is not warranted

Information on Threats to the Species

    We next evaluated whether the information in the petition and 
information in our files concerning the extent and severity of one or 
more of the ESA section 4(a)(1) factors suggest these impacts and 
threats may be posing a risk of extinction for speckled hind that is 
cause for concern.

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

    The petition states ``habitat loss and degradation is a very real 
threat to these species, ranging from declining coral reef ecosystems 
to the devastating impacts of the Deepwater Horizon oil spill.'' In 
support, the petition cites peer-reviewed scientific literature that 
assesses a number of coral stressors, including coral bleaching, 
disease, tropical storms, coastal development and pollution, 
overfishing, ship groundings, and offshore oil and gas exploration and 
development. While NMFS acknowledges these stressors are leading to the 
destruction of coral reefs, we do not believe this is having as great 
an impact on speckled hind as on other more reef-reliant serranids. 
While the species' distribution does include geographic areas where 
coral reefs occur, speckled hind inhabit offshore rocky ledges and sea 
mounts typically in waters 60-120 m deep and are not generally 
associated with shallower coral reefs. Therefore, these deep-water 
reefs where speckled hind occur are not susceptible to the myriad of 
habitat stressors and degraders as their near-shore counterparts.
    The petition also cites the species' range overlap with the 
``rampant and escalating off-shore oil drilling'' activities. The 
petition states the recent Deepwater Horizon oil spill highlights the 
dangers of these activities and the susceptibility of the species to 
effects from them. Impacts ranging from direct uptake through the gills 
to oil persistence after a spill are sighted as ``imminent habitat 
destruction.'' However, no reference is made to how these generalized 
threats would specifically impact speckled hind, or how the Deepwater 
Horizon oil spill impacted the speckled hind population or habitat. 
Additionally, landings data in the Gulf of Mexico indicate no recent 
change over historic averages for

[[Page 25691]]

speckled hind, despite oil and gas activity there.
    In summary, the petition and information in our files do not 
comprise substantial information indicating that the present and 
threatened destruction, modification, or curtailment of habitat or 
range may have been, or may continue to be, causing extinction risk of 
concern for speckled hind.

Overutilization for Commercial and Recreational Purposes

    The petition states the ``primary threat to these grouper species 
is overfishing, both commercially and recreationally. Their slow rate 
of maturation and growth, large size, and aggregation at specific times 
and sites for spawning, combined with their high commercial value and 
value as trophy fish, make them particularly susceptible to depletion 
from fishers.'' The petition also cites the NMFS (2010) classification 
of speckled hind as overfished. The most recent Report to Congress on 
the Status of U.S. Fisheries (NMFS, 2008, 2009) lists speckled hind 
under SAFMC jurisdiction as undergoing overfishing while the overfished 
status is unknown; the species' status in the Gulf of Mexico is 
unknown. A species undergoing overfishing is one where the current 
fishing mortality exceeds an identified mortality threshold, while an 
overfished species is one where the current biomass falls short of an 
identified stock threshold; typically, overfishing leads to a stock 
becoming overfished. These MSFCMA classifications do not necessarily 
indicate that a species may warrant listing as a threatened or 
endangered species, because these classifications do not have any per 
se relationship to a species' extinction risk. For example, our 2007 
status review for the Atlantic white marlin (73 FR 843, January 4, 
2008; http://sero.nmfs.noaa.gov/pr/endangered%20species/pdf/2007_Atlantic_white_marlin_status_%20review.pdf) explained in detail 
important distinctions between the terms ``overfished'' from the MSFCMA 
context, and ``overutilization'' as used in the ESA context. While a 
stock can be exploited to the point of diminishing returns where the 
objective is to sustain a harvest of the species, that over-
exploitation in and of itself does not imply a continuing downward 
spiral for a population. A population may equilibrate at an abundance 
lower than that which would support a desired harvest level, but can 
still be stable at that level if fishing effort is stable. 
Additionally, the SAFMC and NMFS have attempted to reduce the fishing 
mortality with the implementation in 2009 of 8 MPAs designed to protect 
deep-water species and the 2011 prohibition on harvest of speckled 
hind.
    The petition also expresses concern over potential bycatch 
mortality. The MSFCMA defines bycatch to mean fish harvested in a 
fishery, but which are not sold or kept for personal use, and includes 
economic discards and regulatory discards; it does not include fish 
released alive under a recreational catch and release fishery 
management program. Release mortality rates for the commercial and 
recreational speckled hind fisheries are not available, but bycatch 
mortality, including post-release mortality, is a potential concern for 
deep-water species due to the likelihood of barotrauma (i.e., injury 
resulting from expansion of gasses in internal spaces as ambient 
pressure is reduced during ascent). The SAFMC has noted that under the 
existing discard logbook program, discards are self reported and 
involve a high degree of uncertainty. However, it is also suspected 
that the incidental bycatch of speckled hind may have been responsible 
for the overfishing of the species. As evidence of this, fishing 
mortality of speckled hind actually increased despite the 1994 SAFMC 
one-fish-per-vessel trip limit (Ziskin, 2008). However, management 
actions implemented in 2009 and 2011 were intended to: (1) Eliminate 
the overutilization of the species by implementing MPAs intended to 
protect deep-water species from bycatch mortality (thus reducing 
fishing mortality associated with bycatch and the one fish per vessel 
limit) and (2) prohibit all retention of speckled hind, respectively. 
These management actions make the information presented in the petition 
incorrect and irrelevant as susceptibility to bycatch has been 
addressed through these management actions.
    In summary, the petition and information in our files comprises 
substantial information indicating that overutilization may have 
occurred in the past in the South Atlantic; however, regulations have 
been implemented in the South Atlantic to address overutilization 
concerns, and additional measures have been developed and can be 
quickly implemented through the MSFCMA and Council to provide further 
protection for speckled hind if it becomes apparent such measures are 
needed. The petition did not present information on the Gulf of Mexico 
fishery, and fishery information in our files suggests that the 
speckled hind population is stable and harvest levels are sustainable. 
Current, average landings from the Gulf of Mexico are larger than the 
maximum reported landings from the South Atlantic.

Inadequacy of Existing Regulatory Mechanisms

    The petition states that existing regulatory mechanisms are 
inadequate to prevent endangerment or extinction of speckled hind, 
focusing on federal fishing regulations. Specifically, the petition 
identifies the inadequacy of the one-fish-per-vessel limit for all 
fishers in the South Atlantic and fishers in the Gulf of Mexico 
recreational fishery, and the lack of an annual catch limit for the 
Gulf of Mexico commercial fishery. The petition also cites the 
management of the fishery itself as posing a threat to the species. 
Citing the IUCN (2010), the petition states:

the management of fishing is itself posing a threat to these species 
of grouper: An immediate threat to [these] species is related to 
management of the commercial bottom long-lined [sic] fishery of the 
southeastern [United States]. The management trend has been to 
restrict such indiscriminate gear to deeper waters. If this 
management trend continues, [these grouper] and other deep water 
species like [them] will experience an even greater impact than they 
do now because barotrauma (expansion of enclosed gases in the swim 
bladder-embolism) results in hemorrhage and eventual death as these 
deepwater fish are brought to the surface (Coleman and Williams 
2002; Coleman et al. 2004; See also Sadovy & Eklund 1999). There is 
also a trend for the recreational fishery to operate in deeper water 
as shallow stocks become depleted. Even though there is a daily bag 
limit for groupers, there are so many recreational fishermen (over 1 
million in Florida alone) that the potential impact on [these 
already depleted populations] is serious.

    In federal waters of the Gulf of Mexico, speckled hind is managed 
by the Gulf of Mexico Fishery Management Council (GMFMC) through their 
Reef Fish Fishery Management Plan (FMP). In 1990, Amendment 1 to the 
FMP established a 1.8 million pound (816 mt) commercial quota for deep-
water groupers, which includes misty, snowy, yellowedge, speckled hind, 
and warsaw grouper, and also includes scamp after the shallow-water 
grouper quota is filled. Since 2004, the deep-water grouper commercial 
quota has been set at 1.02 million pounds (463 mt) with no size limit. 
Available species-specific commercial landings reveal the Gulf of 
Mexico fishery has only exceeded 0.1 million pounds (45 mt) of speckled 
hind once. Amendment 16B to the FMP, implemented on November 24, 1999, 
established a one-fish-per-vessel recreational bag limit for speckled 
hind, and a prohibition on sale of speckled

[[Page 25692]]

hind when caught recreationally. Additionally, the GMFMC's objective 
for a lack of a minimum size in the Gulf of Mexico is to minimize 
regulatory discards and curb bycatch mortality of this deep-water 
grouper species (GMFMC, 1999). Allowing fishermen to retain speckled 
hind that may otherwise become regulatory discards due to size prevents 
these fish from being thrown back dead due to barotrauma and also 
excluded from landings statistics. Hence, with respect to the Gulf of 
Mexico, the Petitioner is incorrect in its assertion that fishery 
management measures are posing a threat to the species.
    In federal waters of the U.S. South Atlantic, speckled hind is 
managed by the SAFMC through their Snapper-Grouper FMP. Amendment 6 to 
the Snapper-Grouper FMP, effective on July 27, 1994, included a one-
fish-per-vessel, per trip, commercial and recreational possession limit 
for speckled hind; a prohibition on the sale of speckled hind; and 
established the Oculina Experimental Closed Area, which prohibited 
fishing for all snapper-grouper species within this area (59 FR 27242; 
May 26, 1994). Since the implementation of Amendment 6 in 1994, sale of 
speckled hind has been prohibited; however, commercial vessels were 
allowed to retain one speckled hind per vessel. Landings of speckled 
hind on commercial vessels under this prohibition have annually 
averaged approximately 5,240 pounds (2.4 mt) through 2009. Prior to 
this action, commercial landings averaged approximately 21,605 pounds 
(9.8 mt) during the previous 9-year time frame, 1986 through 1994. In 
January 2011, the SAFMC prohibited all landings of speckled hind, thus 
no commercial or recreational landings are expected in the future.
    The petition, its references, and numerous sources state that 
establishment of large marine protected areas is likely to be the most 
effective measure for protection and conservation of speckled hind. 
Studies have found larger and more abundant grouper in closed areas 
than in similar, unprotected areas (Sedberry et al., 1999). The 
petition does not acknowledge that Federal fishery management of 
speckled hind has involved the use of protected areas since the early 
1990s. As discussed above, the Oculina Banks, a unique deep-water coral 
reef ecosystem off the South Atlantic coast of the United States, was 
protected beginning in 1994, specifically to facilitate rebuilding of 
deep-water grouper stocks. Amendment 13A to the South Atlantic snapper-
grouper FMP, effective on April 26, 2004, extended the prohibition on 
fishing for or possessing snapper-grouper species within the Oculina 
Experimental Closed Area for an indefinite period (69 FR 15731). On 
February 12, 2009, Amendment 14 to the South Atlantic snapper-grouper 
FMP established eight marine protected areas in which fishing for or 
possession of South Atlantic snapper-grouper species is prohibited (74 
FR 1621). Additionally, Amendment 17B to the South Atlantic snapper-
grouper FMP prohibited harvest and possession of speckled hind. 
Similarly, the GMFMC established several large closed areas in the Gulf 
of Mexico, including the Steamboat Lump and Madison and Swanson marine 
reserves. Ziskin (2008) stated that the one fish bag limit (in the 
South Atlantic) seemed insufficient to halt the over-exploitation of 
the species and that a new management strategy may be necessary to 
improve the status of the population. Given the SAFMC measures 
implementing 8 MPAs protecting deep water species in 2009 and the 
recent (January 2011) ban on any harvest of speckled hind, it appears 
that the SAFMC has heeded this call. Further, through the MSFCMA and 
Council process management measures have been and can be implemented 
quickly to protect speckled hind if such measures are found to be 
necessary.
    In summary, the petition and information in our files indicates 
that existing regulatory mechanisms are adequate to prevent 
endangerment for speckled hind. The first regulatory mechanisms to 
address problems with speckled hind focused on targeted catch of the 
species. When it was understood that targeted reductions (i.e., a 1-
fish per vessel limit) were not enough because of bycatch, new 
regulatory mechanisms were developed to eliminate any harvest (i.e., 
zero bag limit) and protect the species from bycatch (i.e., MPA's). 
Additionally, regulatory mechanisms appear to be flexible in response 
to information about the population, and thus are not posing an 
extinction risk for speckled hind.

Other Natural or Manmade Factors

    The petition and several referenced studies state that speckled 
hind are vulnerable to increased risk of extinction, particularly from 
fishing pressure, due to biological constraints, including its large 
size, slow growth and maturity rates, susceptibility to barotrauma, 
lack of population increase, slow population doubling rates, 
protogynous hermaphroditism, and formation of spawning aggregations 
that can be easily targeted by fishermen. However, concerns about the 
inherent vulnerability of deep-water grouper species have been taken 
into account and have been a recurring justification for Federal 
fishery management actions implemented under the MSFCMA.
    The petition also lists potential small population size of adult 
speckled hind and human population growth as other natural or manmade 
factors contributing to speckled hind's vulnerability, but does not 
provide any supporting information to indicate these generalized 
concerns are actually negatively affecting speckled hind.
    In summary, the petition and information in our files do not 
present substantial information to suggest that other natural or 
manmade factors, alone or in combination with other factors such as 
fishing pressure, may be causing extinction risk of concern in speckled 
hind.

 Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
does not 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: April 25, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2012-10498 Filed 4-30-12; 8:45 am]
BILLING CODE 3510-22-P