[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Proposed Rules]
[Pages 13614-13617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04718]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 121204680-3387-01]
RIN 0648-XC387


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Humphead Wrasse 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 the 
humphead wrasse (Cheilinus undulatus) as threatened or endangered and 
designate critical habitat 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, for 60 days we are soliciting 
information pertaining to this species from any interested party.

DATES: Information and comments on the subject action must be received 
by April 29, 2013.

ADDRESSES: You may submit information, identified by the code NOAA-
NMFS-2013-0001, by any of the following methods:
     Electronic Submissions: Submit all electronic information 
via the Federal eRulemaking Portal http://www.regulations.gov. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0001, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: NMFS, Pacific Islands Regional Office, Regulatory 
Branch Chief, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814.
     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 http://www.regulations.gov without change. 
All personally identifiable information (for example, name, address, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. We will accept anonymous 
submissions. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS Pacific Islands 
Regional Office, 808-944-2238; or Lisa Manning, NMFS Office of 
Protected Resources, 301-427-8466.

SUPPLEMENTARY INFORMATION: 

Background

    On October 31, 2012, we received a petition from the WildEarth 
Guardians to list the humphead wrasse (Cheilinus undulatus) as 
threatened or endangered under the ESA and to designate critical 
habitat concurrent with the listing under the ESA. Copies of this 
petition are available from us (see ADDRESSES, above).

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

[[Page 13615]]

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 
the 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, which includes conducting a 
comprehensive review of the best available scientific and commercial 
information. Within 12 months of receiving the petition, we must 
conclude the review with a finding as to whether, in fact, the 
petitioned action is warranted. Because the finding at the 12-month 
stage is based on a significantly more thorough review of the available 
information, a ``may be warranted'' finding at the 90-day stage 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, the determination of whether a species is 
threatened or endangered shall be based on any one or a combination of 
the following five 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, 
we 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)).
    At the 90-day stage, 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 that it supports the petitioner's assertions. 
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.

Humphead Wrasse Species Description

    The humphead wrasse is a large, long-lived, slow growing, and 
naturally rare species of the Indo-West Pacific. Known by several other 
common names, including Napoleon wrasse, giant wrasse, and Maori 
wrasse, it is the largest species within its family, Labridae; and one 
of the largest of all reef fishes (Donaldson and Sadovy, 2001). 
Humphead wrasse are thought to reach sizes of over 200 cm; however, 
records of fish greater than 150 cm (fork length) are apparently 
lacking (Choat et al., 2006). Humphead wrasse reach sexual maturity at 
5-7 years and 35-85 cm total length (TL), and can live at least 30 
years (Sadovy de Mitcheson et al., 2010; Sadovy et al., 2003; Donaldson 
and Sadovy, 2001). The humphead

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wrasse is a carnivorous predator with a diet that includes a variety of 
reef-associated animals, including molluscs, crustaceans, sea urchins, 
fishes, and starfishes--including the toxic crown-of-thorns starfish 
(Donaldson and Sadovy, 2001). They are generally solitary, but can 
occur in small groups and are known to congregate to form spawning 
aggregations. Spawning activity is tidally influenced and, depending on 
location, occurs during multiple months or every month of the year 
(Colin, 2010; Sadovy et al., 2003).
    Humphead wrasse undergo changes in body form, color, and sex as 
they grow and mature. Small juveniles are pale with black markings; 
larger juveniles become pale green with black markings. Adults are a 
striking blue/green with large scales, intricate markings around the 
eyes, and a yellow margin on the caudal fin. Large adults also develop 
a large bump on their forehead and thickened, prominent lips. As with 
other wrasses and some other reef fish species, humphead wrasse are 
protogynous hermaphrodites, meaning males start out as females and 
undergo a sexual transition (Choat et al., 2006; Sadovy et al., 2003).
    The humphead wrasse ranges throughout the tropical and sub-tropical 
Indo-Pacific, from Egypt, the eastern coast of Africa, and Madagascar, 
throughout all of Southeast Asia; north to southern Japan; south to 
northern Australia; and eastward to Fiji, the Marshall Islands, and the 
Cook Islands (Russell, 2004; Sadovy et al., 2003). Within U.S. waters, 
humphead wrasse occur in American Samoa, Guam, Commonwealth of the 
Northern Mariana Islands (CNMI), and the Line Islands (Russell, 2004; 
Sadovy et al., 2003). Within this range, distribution of the fish is 
patchy.
    Humphead wrasses are typically associated with well-developed coral 
reefs. Adult humphead wrasse are thought to prefer steep outer reef 
edges, channels, and lagoon reef slopes at about 2-60 m depth (Sadovy 
et al., 2003; Donaldson and Sadovy, 2001). Small, post-settled humphead 
wrasse have been observed in branching hard and soft corals, coral 
rubble, and seagrasses (Tupper, 2007; Sadovy et al., 2003). Juveniles 
are more cryptic than adults and are often associated with denser coral 
reefs and thickets, coral rubble, bushy macroalgae, and seagrasses 
(Tupper, 2007; Sadovy et al., 2003). Juveniles typically occur inshore, 
while larger fish are more common in deeper, outer reefs or lagoons 
(Sadovy et al., 2003).

Analysis of the Petition

    The petition contains a detailed narrative justification for the 
recommended measure and provides information on the species' taxonomy, 
geographic distribution, habitat characteristics, population status and 
trends, and threats. The petition 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.

Humphead Wrasse Status

    The petitioner acknowledges that data on total numbers, globally or 
nationally, are not available for this species; however, humphead 
wrasse densities are provided by several studies cited in the petition. 
In general, these studies indicate that densities of humphead wrasse 
are low (less than 20 per 10,000 square meters), even within preferred 
habitats (Gillet, 2010; Sadovy et al., 2003). Biennial surveys 
conducted by NOAA's Pacific Islands Fisheries Science Center (PIFSC) 
during 2002-2012 at 32 U.S. Pacific islands indicate that the species 
is not common at any of the survey sites (PIFSC, unpublished data). The 
exception is Wake Atoll, where humphead wrasse are more abundant and 
more frequently encountered in surveys (PIFSC, unpublished data; NOAA, 
2009). Wake Atoll is very isolated, relatively pristine and, as of 
2009, part of the Pacific Remote Islands Marine National Monument, 
where commercial fishing is banned out to 50 nautical miles.
    The petitioner cites studies that show humphead wrasse densities 
are lower in areas that are fished, and very low or zero in areas with 
high fishing pressure and/or large human populations (Gillet, 2010; 
Sadovy et al., 2003). Results of 24 underwater visual census surveys 
from 11 range states were reviewed by Sadovy et al. (2003) and show 
that there is a decline in both density and body size of humphead 
wrasse in areas of higher fishing pressure. Landings data are limited, 
but severe declines in humphead wrasse landings have been reported from 
some locations, such as Borneo and Malaysia, over relatively short time 
scales (Scales et al., 2007; Sadovy et al., 2003). Interviews conducted 
in various locations throughout the species' range, including CNMI, 
Philippines, Australia, Malaysia and Fiji, indicate widely shared 
perceptions among elder fishers that abundance of humphead wrasse has 
declined and that this decline is largely attributed to fishing 
pressure (CNMI Final Grant Report, 2010; Sadovy et al., 2003). Humphead 
wrasse are also considered extirpated or nearly extirpated from some 
locations at the edge of its range, including parts of Fiji, 
southwestern Indian Ocean and the South China Sea (Sadovy et al., 
2003).

Threats to Humphead Wrasse

    The petition identifies overutilization and inadequate protections 
as major threats to this species. Other threats identified in the 
petition but not explicitly linked to humphead wrasse status include 
destruction and degradation of coral reef habitat, human population 
growth, climate change, and ocean acidification. The petitioner also 
cites natural rarity as a factor contributing to the species' risk of 
extinction.
    The humphead wrasse is highly prized within the Indo-Pacific region 
as a luxury food fish, primarily in Hong Kong, Taiwan, and Singapore 
(Sadovy et al., 2003; Erdmann and Pet-Soede, 1997), and garners the 
highest price of all fishes in the live reef fish food trade (Sadovy de 
Micheson et al., 2010). Demand for this fish is expected to remain 
high, and fishing efforts are likely to continually extend into new 
areas as local populations are fished out (Sadovy et al., 2003; Burke 
et al., 2002; Barber and Pratt, 1997).
    The petitioner provides references that suggest this species is 
vulnerable to fishing pressure. For example, Scales et al. (2007) 
documented exponential declines in relative abundance of humphead 
wrasse in under a decade in northern Borneo and suggest that serial 
depletion is occurring. Additionally, the humphead wrasse has been 
noted to experience a greater than 50 percent decline over the last 
three generations in locations where data are available (Russell, 
2004). This decline is predicted to continue or even accelerate with 
the expected growth of the live reef fish food trade (Russell, 2004). 
Also, the international live-fish fishery appears to be largely focused 
on juveniles (fish under 500 mm TL), which are then held in cages until 
they grow to market size (Sadovy de Micheson et al., 2010). This 
practice exacerbates the potential for overexploitation because fish 
are removed from the wild prior to reproducing.
    The petition discusses how, in addition to other general threats to 
coral reefs, humphead wrasse fishing practices are posing a threat to 
humphead wrasse habitat. Stunning and capturing humphead wrasse by 
applying sodium cyanide to reefs, a common method of live-capture, 
damages corals and other reef organisms (Bryant et al., 1998; Barber 
and Pratt,

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1997). This practice is prohibited in many areas but is still used in 
some areas for collecting humphead wrasse for the live reef fish food 
trade (Sadovy et al, 2003; Bryant et al., 1998; Barber and Pratt, 
1997).
    The petition proposes that exploitation threats to this species are 
not being addressed, a result of the lack of protective measures in 
most countries and the inadequacy of regulatory mechanisms where they 
do exist. Although this species receives some protections through local 
fishing restrictions, Sadovy et al. (2003) indicates that, with few 
exceptions, protective legislation is largely ineffective due to the 
lack of enforcement or permitted exemptions. Additionally, despite 
international trade concerns and protections granted with the species' 
listing in Appendix II of the Convention on International Trade of 
Endangered Species of Wild Fauna and Flora (CITES), there is a body of 
evidence indicating illegal, unregulated, and unreported fishing and 
trade of the humpback wrasse (CITES Workshop Report, 2010).

Petition Finding

    After reviewing the petitioner's information and the information in 
our files, we have determined there is substantial information 
indicating that the petitioned action may be warranted. The low natural 
densities and other life history characteristics of humphead wrasse, 
coupled with evidence of declines in abundance, overutilization, and 
apparent inadequacy of existing regulatory mechanisms and protections 
for this species and its coral reef habitat are cause for concern. 
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 factors set 
out in section 4(a)(1) of the ESA. 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 are opening 
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 humphead wrasse throughout its 
range including: (1) Historical and current abundance, distribution, 
and population trends; (2) biological information (life history, 
population genetics, population connectivity, etc.); (3) status of 
historical and current habitat, including spawning aggregation sites; 
(4) regulatory mechanisms and management measures, including 
enforcement thereof, designed to manage fishing or protect habitats; 
(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 to the status 
of humphead wrasse throughout its range.

Peer Review

    On July 1, 1994, NMFS, jointly with the USFWS, 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 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 
Pacific Islands 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: February 22, 2013.
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. 2013-04718 Filed 2-27-13; 8:45 am]
BILLING CODE 3510-22-P