[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Notices]
[Pages 41958-41961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15201]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 160517429-6429-01]
RIN 0648-XE635


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Maui and Kona Reef Manta Ray Populations as Threatened 
Distinct Population Segments 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 
Maui and Kona reef manta ray (Manta alfredi) populations as threatened 
distinct population segments (DPSs) under the Endangered Species Act 
(ESA). We find that the petition and information in our files do not 
present substantial scientific or commercial information indicating 
that either the Maui or Kona reef manta ray population may qualify as a 
DPS under the ESA. As such, we find that the petition does not present 
substantial scientific or commercial information indicating that the 
Maui and Kona reef manta ray populations are ``species'' eligible for 
listing under the ESA. However, in response to a previous petition to 
list the entire reef manta ray species under the ESA, we are currently 
conducting a status review of M. alfredi to determine if the species 
warrants listing throughout all or a significant portion of its range.

ADDRESSES: Copies of the petition and related materials are available 
on our Web site at http://www.fisheries.noaa.gov/pr/species/fish/manta-ray.html.

FOR FURTHER INFORMATION CONTACT: Maggie Miller, Office of Protected 
Resources, 301-427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On April 26, 2016, we received a petition from Dr. Mark Deakos to 
list the Maui and Kona reef manta ray (M. alfredi) populations as 
threatened DPSs under the ESA. The Maui reef manta ray is described as 
occurring in the State of Hawaii around the islands of Maui, Molokai, 
Lanai, and Kahoolawe. The Kona reef manta ray is described as occurring 
off the western side of the Big Island of Hawaii, referred to as the 
Kona coast. The petition also requested that critical habitat be 
designated concurrent with the listing. The petition was submitted as a 
public comment on our previous 90-day finding response on a petition to 
list the giant manta ray (M. birostris) and reef manta ray under the 
ESA (81 FR 8874; February 23, 2016). Copies of the petitions are 
available upon request (see ADDRESSES).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce 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 that 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 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 DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'') 
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 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 the Services (50 CFR 
424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
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

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authorities, and maps (50 CFR 424.14(b)(2)).
    At the 90-day finding stage, we evaluate the petitioners' 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 petitioners' 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 petitioners' assertions. In other 
words, conclusive information indicating that 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 that 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 faces an 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 (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 indicating 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.

Analysis of Petition and Information Readily Available in NMFS Files

    As mentioned above, in analyzing the request of the petitioner, we 
first evaluate whether the information presented in the petition, along 
with information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Because the petition specifically requests listing of DPSs, we 
evaluate whether the information indicates that the petitioned 
entities, the Maui and Kona reef manta ray populations, constitute DPSs 
pursuant to our DPS Policy.
    When identifying a DPS, our DPS Policy stipulates two elements that 
must be considered: (1) The discreteness of the population segment in 
relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the significance of the population segment to the 
remainder of the species (or subspecies) to which it belongs. In terms 
of discreteness, the DPS Policy states that a population of a 
vertebrate species may be considered discrete if it satisfies either 
one of the following conditions: (1) It is markedly separated from 
other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation) or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the ESA. 
If a population segment is considered discrete under one or more of the 
above conditions, then its biological and ecological significance is 
considered. Significance under the DPS Policy is evaluated in terms of 
the importance of the population segment to the overall welfare of the 
species. Some of the considerations that can be used to determine a 
discrete population segment's significance to the taxon as a whole 
include: (1) Persistence of the population segment in an unusual or 
unique ecological setting; (2) evidence that loss of the population 
segment would result in a significant gap in the range of the taxon; 
(3) evidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or 
(4) evidence that the population segment differs markedly from other 
populations of the species in its genetic characteristics.
    In evaluating this petition, we looked for information to suggest 
that the petitioned entities, the Maui and Kona reef manta ray 
populations, may qualify as DPSs under both the discreteness and 
significance criteria of our DPS Policy. Our evaluation is discussed 
below.

Qualification of the Maui Reef Manta Ray Population as a DPS

    The petition asserts that the Maui population of reef manta ray 
qualifies as a DPS. The petition references research on the 
population's size (Deakos et al. 2011), demographics (Deakos 2010a), 
home range (Deakos et al. 2011), reproductive ecology (Deakos 2012), 
threats, and ongoing photo-identification, tagging and genetic analysis 
as evidence that suggests that the Maui population is a DPS that is 
insular to the Maui County region. While the petition itself fails to 
provide any details regarding how the population may satisfy either the 
discreteness or significance criteria of the DPS Policy, we reviewed 
the referenced documents and our own files for information that may 
support this assertion.
    In terms of discreteness, information cited within the petition 
suggests that the reef manta rays in the Maui County area (the islands 
of Maui, Molokai, Lanai and Kahoolawe) exhibit strong, long-term site 
fidelity (Deakos et al. 2011). From 2005 to 2009, 229 SCUBA surveys 
were conducted at a manta ray aggregation site approximately 450 m off 
the west coast of Maui, Hawaii. The study area was ~30,000 m\2\ in size 
(Deakos et al. 2011). Because manta rays contain unique and distinct 
markings on their ventral side that appear to remain throughout the 
animal's lifespan, photo-identification can provide a useful tool to 
identify new and previously observed

[[Page 41960]]

manta rays with a high degree of certainty. Over the course of the 
study, 1,494 manta rays were encountered, with 290 unique individuals 
identified through the use of photo-identification (Deakos et al. 
2011). Of the 290 individuals, 73 percent (n=212) were observed more 
than once in the study area, with 198 individuals re-sighted within a 
1-year period and 95 re-sighted over multiple years (Deakos et al. 
2011). Times between re-sightings ranged from 1 day to over 3 years, 
with a mean of around 6 months (Deakos et al. 2011). Although site 
fidelity varied between individuals, the authors indicate that the high 
number and frequency of re-sightings within and across years supports 
long-term site fidelity to the study area.
    In addition to using photo-identification to examine residency and 
movement, Deakos et al. (2011) tagged an adult male and female reef 
manta ray with acoustic transmitters and tracked these rays for 28 
hours and 51 hours, respectively. Results from the tracking data showed 
that the male traveled a linear distance of 40 km from the tagging site 
to the island of Lanai, and the female traveled a linear distance of 32 
km to the island of Kahoolawe (Deakos et al. 2011). The distance from 
the study area to the Big Island of Hawaii is 49 km (using closest 
geographic points; Deakos et al. 2011), which would appear attainable 
for M. alfredi given that recent satellite and photo-identification 
studies observed M. alfredi making regular migrations over much larger 
distances (>700 km) (Convention on Migratory Species (CMS) 2014). 
However, using a catalog of photos identifying 146 reef manta rays from 
a well-monitored population off Kona (Big Island, Hawaii), the authors 
note that none of the 290 uniquely identified individuals from the Maui 
population were a match to the Kona individuals. The authors suggest 
that depth could be a barrier to migration from Maui to the Big Island 
(identifying the 2,000 m depth of the Alenuihaha Channel between the 
two islands) and also from Molokai to Oahu (where depths between the 
two islands reach 600 m), but recognize future research is needed to 
confirm this hypothesis, including photo-identification between Oahu 
individuals and the Maui population (Deakos et al. 2011). Deakos et al. 
(2011) suggest that a more likely explanation for the absence of photo-
identification matches between the Big Island and Maui reef manta rays 
is the presence of sufficient resources within the Maui County area to 
sustain the Maui population, making movement between the two islands 
unnecessary. While it is clear that further information is required to 
definitively determine whether the Maui population is discrete from 
other M. alfredi populations, with the authors' own implication that 
transit may occur if resources diminish, we find that the above 
information provides substantial information that the Maui reef manta 
ray population may be markedly separated from other populations of the 
same taxon as a consequence of physical, ecological, or behavioral 
factors.
    While we find that the Maui population may satisfy the discreteness 
criteria under our DPS Policy, the petition provides no information on 
the importance of this population segment to the overall welfare of the 
species. In reviewing the cited references within the petition, as well 
as information in our files, we found no evidence to suggest that the 
population segment persists in an unusual or unique ecological setting. 
The Maui population segment, described in the petition's references, 
exists in waters off the islands of Maui, Molokai, Lanai and Kahoolawe. 
Only a main aggregation site for the population is described in the 
references, consisting of primarily fringing coral reef, extending away 
from the shoreline for approximately 550 m, with coral substrate cover 
composed of lobe (Porites lobata), rice (Acroporidae spp.), cauliflower 
(Pocillopora meandrina), and finger coral (Porites compressa), as well 
as sand and sea grass (Halimeda spp.) (Deakos 2010a; Deakos et al. 
2011). We have no information, however, to indicate that this substrate 
cover in the aggregation site is unique to this location. Furthermore, 
as Marshall et al. (2009) describe M. alfredi as a species commonly 
observed inshore, around coral and rocky reefs, productive coastlines, 
tropical island groups, atolls, and bays, we do not find the Maui 
County area, which shares these same attributes, to be unique or 
unusual in terms of an ecological setting for the species. We also do 
not consider loss of the Maui population segment as resulting in a 
significant gap in the range of the taxon, nor do we have evidence to 
suggest that this population segment represents the only surviving 
natural occurrence of M. alfredi within its historical range. As noted 
in the previous 90-day finding addressing this species (81 FR 8874; 
February 23, 2016), M. alfredi is widespread in tropical and 
subtropical waters throughout the Indian Ocean (from South Africa to 
the Red Sea, and off Thailand and Indonesia to Western Australia) and 
the western Pacific (from the Yaeyama Islands, Japan in the north to 
the Solitary Islands, Australia in the south), and it occurs as far 
east as French Polynesia and the Hawaiian Islands (Marshall et al. 
2009; Mourier 2012). A few historical reports and photographs also 
place the species off the Canary Islands, Cape Verde Islands, and 
Senegal (Marshall et al. 2009). Furthermore, if the Maui population 
segment was lost, the species would still be represented in the Central 
Pacific, and even within the Hawaiian Islands, by other M. alfredi 
populations (e.g., the Kona population; Deakos et al. 2011; CITES 
2013).
    While the petition indicates that a genetic analysis examining the 
connectivity between the Maui and Kona reef manta ray populations ``is 
almost complete'' and ``should provide insight into the degree that 
these populations represent genetically independent stocks,'' the 
petition does not provide any further information on the genetics of 
these populations, nor do we have this type of data available in our 
files. As such, we have no information to evaluate whether the Maui 
population segment may differ markedly from other populations of the 
species in its genetic characteristics. Additionally, none of the 
references cited by the petition (Deakos 2010a; Deakos 2010b; Deakos et 
al. 2011; Deakos 2012), nor the information in our files, provide any 
other evidence to suggest that the Maui reef manta ray population 
segment may make a significant contribution to the adaptive, 
ecological, or genetic diversity of the taxon.
    Overall, based on the information in the petition and in our files, 
and guided by the DPS Policy criteria, we found evidence to suggest 
that the Maui reef manta ray population may be discrete, but we were 
unable to find evidence that could support the potential significance 
of the Maui reef manta ray population to the taxon as a whole. Thus, we 
conclude that the petition does not present substantial information to 
indicate that the Maui reef manta ray population may qualify as a DPS 
under the DPS Policy.

Qualification of the Kona Reef Manta Ray Population as a DPS

    The petition also asserts that the Kona population of reef manta 
ray qualifies as a DPS. The petition states that photo-identification 
and tagging of the Kona population suggests that it is also a DPS that 
is insular to the Big Island region, and possibly restricted to the 
west coast of the Big Island. However, the petition fails to provide 
any further information

[[Page 41961]]

or references to support this assertion. Mentions of the Kona 
population in the references cited in the petition only exist in 
relation to the catalog of photos identifying 146 manta rays from this 
population (citing www.mantapacific.org), which was used to compare 
against photos of individuals from the Maui reef manta ray population 
(Deakos 2010a; Deakos et al. 2011).
    In terms of discreteness, we do not consider the lack of photo-
identification matches between the Maui population and the Kona 
population to be substantial evidence indicating that the Kona 
population may be discrete. As noted above, the Maui population study 
also included time-series information on re-sightings of individuals 
within the population, providing support for long-term site fidelity, 
as well as acoustic tracking of individuals (Deakos 2010a; Deakos et 
al. 2011). Similar information was not provided for the Kona 
population, nor do we have this information available in our files. 
Even if we were to consider that the Kona population may be discrete by 
using the information supporting the potential discreteness of the Maui 
population as a proxy (e.g., physical barriers, ecological and/or 
behavioral factors contributing to marked separation), the petition 
provides no information on the importance of the Kona population 
segment to the overall welfare of the species, nor do we have that 
information readily available in our files. Similar to the Maui 
population, the ecological setting that the Kona population occupies is 
similar to that of the rest of the species; loss of the population 
would not constitute a significant gap in the taxon's extensive range; 
the Kona population does not represent the only surviving natural 
occurrence of M. alfredi within its historical range; and we have no 
available genetic or other data to suggest that the population may make 
a significant contribution to the adaptive, ecological, or genetic 
diversity of the taxon.
    Overall, based on the information in the petition and in our files, 
and guided by the DPS Policy criteria, we were unable to find evidence 
to suggest that the Kona reef manta ray population may be both discrete 
and significant. Thus, we conclude that the petition does not present 
substantial information to indicate that the Kona reef manta ray 
population may qualify as a DPS under the DPS Policy.

ESA Section 4(a)(1) Factors

    Because we concluded that the petition does not present substantial 
information to indicate that the Maui and Kona reef manta ray 
populations may qualify as DPSs under the DPS Policy, the petitioned 
entities do not constitute ``species'' that are eligible for listing 
under the ESA. As such, we do not need to evaluate whether the 
information in the petition indicates that these populations face an 
extinction risk that is cause for concern.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, and based on the above 
analysis, we conclude that the petition does not present substantial 
scientific or commercial information indicating that the petitioned 
action of identifying the Maui and Kona reef manta ray populations as 
DPSs may be warranted. As such, we find that the petition does not 
present substantial scientific or commercial information indicating 
that the Maui and Kona reef manta ray populations are ``species'' 
eligible for listing under the ESA.
    While this is a final action, and, therefore, we do not solicit 
comments on it, we note that we are currently conducting a status 
review of M. alfredi (which considers all global populations of reef 
manta rays, including the Maui and Kona populations) to determine 
whether the reef manta ray is in danger of extinction or likely to 
become so throughout all or a significant portion of its range. More 
information on that action can be found in the Federal Register notice 
(81 FR 8874; February 23, 2016) announcing the initiation of this 
status review.

References Cited

    A complete list of references is available upon request to the NMFS 
Office of Protected Resources (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: June 20, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-15201 Filed 6-27-16; 8:45 am]
 BILLING CODE 3510-22-P