[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 6309-6317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00680]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 150211138-7024-02]
RIN 0648-XD771


Endangered and Threatened Wildlife and Plants; Final Rule To List 
Two Guitarfishes as Threatened Under the Endangered Species Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final rule to list two foreign marine 
guitarfish species under the Endangered Species Act (ESA). We 
considered comments submitted on the proposed listing rule and have 
determined that the blackchin guitarfish (Rhinobatos cemiculus) and 
common guitarfish (Rhinobatos rhinobatos) warrant listing as threatened 
species. We will not designate critical habitat for either of these 
species because the geographical areas occupied by these species are 
entirely outside U.S. jurisdiction, and we have not identified any 
unoccupied areas within U.S. jurisdiction that are currently essential 
to the conservation of either of these species.

DATES: This final rule is effective February 21, 2017.

ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Brendan Newell or Marta Nammack NMFS, 
Office of Protected Resources (OPR), (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

    On July 15, 2013, we received a petition from WildEarth Guardians 
to list 81 marine species or subpopulations as threatened or endangered 
under the ESA. This petition included species from many different 
taxonomic groups, and we prepared our 90-day findings in batches by 
taxonomic group. We found that the petitioned actions may be warranted 
for 24 of the species and 3 of the subpopulations and announced the 
initiation of status reviews for each of the 24 species and 3 
subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 
2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; 
and 79 FR 10104, February 24, 2014). On September 19, 2016, we 
published a proposed rule to list the blackchin guitarfish (Rhinobatos 
cemiculus) and the common guitarfish (Rhinobatos rhinobatos) as 
threated species (81 FR 64094). We requested public comment on 
information in the draft status review and proposed rule, and the 
comment period was open through November 18, 2016. This final rule 
provides a discussion of the information we received during the public 
comment period and our final determination on the petition to list the 
blackchin guitarfish and the common guitarfish under the ESA. The 
status of the findings and relevant Federal Register notices for the 
other 22 species and 3 subpopulations can be found on our Web site at 
www.nmfs.noaa.gov/pr/species/petition81.htm.

Listing Species Under the Endangered Species Act

    We are responsible for determining whether species are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this 
determination, we consider first whether a group of organisms 
constitutes a ``species'' under the ESA, then whether the status of the 
species qualifies it for listing as either threatened or endangered. 
Section 3 of the ESA defines a ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.''
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' We interpret an 
``endangered species'' to be one that is presently in danger of 
extinction. A ``threatened species,'' on the other hand, is not 
presently in danger of extinction, but is likely to become so in the 
foreseeable future (that is, at a later time). In other words, the 
primary statutory difference between a threatened and endangered 
species is the timing of when a species may be in danger of extinction, 
either presently (endangered) or in the foreseeable future 
(threatened).
    When we consider whether a species might qualify as threatened 
under the ESA, we must consider the meaning of the term ``foreseeable 
future.'' It is appropriate to interpret ``foreseeable future'' as the 
horizon over which predictions about the conservation status of the 
species can be reasonably relied upon. The foreseeable future

[[Page 6310]]

considers the life history of the species, habitat characteristics, 
availability of data, particular threats, ability to predict threats, 
and the reliability to forecast the effects of these threats and future 
events on the status of the species under consideration. Because a 
species may be susceptible to a variety of threats for which different 
data are available, or which operate across different time scales, the 
foreseeable future is not necessarily reducible to a particular number 
of years.
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened due to any of the following 
factors: The present or threatened destruction, modification, or 
curtailment of its habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; the inadequacy of existing regulatory mechanisms; or other 
natural or manmade factors affecting its continued existence. Under 
section (4)(b)(1)(A), we are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
to protect the species.
    In making a listing determination, we first determine whether a 
petitioned species meets the ESA definition of a ``species.'' Next, 
using the best available information gathered during the status review 
for the species, we complete a status and extinction risk assessment. 
In assessing extinction risk for these two guitarfishes, we considered 
the demographic viability factors developed by McElhany et al. (2000). 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our status 
reviews, including for Pacific salmonids, Pacific hake, walleye 
pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, 
scalloped hammerhead sharks, and black abalone (see www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the 
collective condition of individual populations is considered at the 
species level according to four viable population descriptors: 
abundance, growth rate/productivity, spatial structure/connectivity, 
and diversity. These viable population descriptors reflect concepts 
that are well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk (NMFS 2015).
    We then assess efforts being made to protect the species to 
determine if these conservation efforts are adequate to mitigate the 
existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, 
when making a listing determination for a species, to take into 
consideration those efforts, if any, being made by any State or foreign 
nation to protect the species.

Summary of Comments

    In response to our request for comments on the proposed rule, we 
received five comment letters. Two comment letters were from foreign 
governments and clarified information about their relevant regulations. 
One comment letter was from an environmental nonprofit organization 
supporting our proposed listing decision. Two comment letters were 
submitted anonymously, each challenging a number of our statements or 
conclusions in the status review or proposed rule, generally without 
providing references or evidence that would allow us to investigate 
further. One commenter also provided some editorial comments, which 
were incorporated in the status review as appropriate. Summaries of 
issues raised by the public comments received and our responses are 
provided below, with references where appropriate.
    Comment 1: One commenter pointed out that R. cemiculus is also 
referred to in some of the literature by the taxonomic synonym 
Glaucostegus cemiculus.
    Response: The fact that Glaucostegus cemiculus is a synonym for R. 
cemiculus has been added to the Taxonomy and Distinctive 
Characteristics section of the status review. Although we did not 
include this synonym in the draft status review this did not impact the 
development of the status review or proposed rule. We were aware of 
this synonym and searched for publications related to this species 
using both Rhinobatos cemiculus and Glaucostegus cemiculus while 
gathering information for the status review.
    Comment 2: One commenter disagreed with our description of the 
smallest reported length for a fish in a study as the ``minimum total 
length (TL),'' stating that minimum TL is always 0 mm for all animals.
    Response: The word minimum was used while discussing the smallest 
lengths ever reported for juveniles of each species. We did not intend 
to imply that the reported lengths were the smallest possible lengths 
that the animals could be. We have revised the status review to clarify 
this point.
    Comment 3: One commenter noted that we did not include the k value 
for R. rhinobatos reported in Ismen et al. (2007) in the discussion 
about growth rates.
    Response: The k value from Ismen et al. (2007) has been added to 
the discussion in the Reproduction and Growth section of the status 
review.
    Comment 4: One commenter claimed our analysis is biased because we 
discuss ``conflict'' in the literature regarding conclusions 
researchers have reached about the two guitarfish species' reproductive 
potential and growth rates. This commenter stated that these different 
conclusions reached by researchers are not conflicting conclusions but 
are evidence of intraspecies variation, which could be evidence of 
population structure. The same party made multiple other comments about 
regional variations in morphology and biology indicating population 
structure. An additional commenter also claimed that there is more 
evidence for population structuring in these guitarfishes than three 
ESA-listed species of angelshark, Squatina aculeata, S. oculata, and S. 
squatina. These three Squatina species were listed as endangered on 
August 1, 2016 (81 FR 50394). This commenter provided no references to 
validate this claim.
    Response: We disagree with the commenter's implication that noting 
conflicting conclusions from different authors about a species' life 
history implies bias. We acknowledge that variations in biology in 
different portions of a species' range could imply population 
structure. However, Lteif (2015) attributed these variations to 
environmental differences throughout each species' range (e.g., food 
availability and water temperatures) or the relatively small amount of 
data on the species and differences in sampling approach. ICES (2010) 
stated that the relationships between the Mediterranean and Atlantic 
stocks of R. cemiculus and R. rhinobatos are unclear. We found no other 
discussions of population structure in the available information. Given 
the lack of information, we could not reach conclusions about 
population structure. Our status review presents the best available 
information and notes where authors have reached different conclusions 
to accurately represent the available information.
    Comment 5: One commenter asserted that the discussion in the status 
review of both species' preference for warmer waters is moot because 
the only temperature data provided in the document is sea surface 
temperature data, and as both species are demersal, they live below the 
thermocline. This commenter also asserted that, in our

[[Page 6311]]

discussion about the threat of climate change in the status review, we 
failed to address specifically how changing bottom temperatures will 
affect the species.
    Response: According to the best available scientific information, 
both of the guitarfishes are demersal species that typically occur up 
to a maximum depth of 100m and spend at least a portion of their lives 
in shallow waters. The only information we found regarding how these 
species interact with water temperature is that both species prefer 
warmer, subtropical waters (Capape and Zaouali 1994; Corsini-Foka 2009; 
Edelist 2014). The discussion in the status review is about the role 
that temperature likely plays in restricting many Mediterranean species 
to biogeographic ranges. While we consider this information relevant to 
understanding both guitarfish species' habitat and distribution, we 
explicitly acknowledged in the draft status review that we found no 
information on how any particular isotherm affects the distribution and 
abundance of these guitarfish species. We found no discussion in the 
scientific literature regarding how these species interact with 
thermoclines, the depths of which likely vary seasonally and regionally 
given the wide distribution of these species (Coll et al., 2010). 
Specifically regarding climate change, Akyol and Capap[eacute] (2014) 
and Rafrafi-Nouira et al. (2015) both attributed shifts in R. cemiculus 
distribution to warming waters but did not discuss bottom temperatures 
or thermoclines. No references were provided by the commenter to 
explain how both species interact with thermoclines or invalidate our 
interpretation that sea surface and mixed layer temperature is likely 
relevant to the distribution of these subtropical species.
    Comment 6: One commenter asserted that our assumption that both 
guitarfish species are likely mirroring the trend of decreasing 
elasmobranch and batoid (rays, skates, guitarfishes, etc.) landings in 
southern Tunisia, where the best available information shows that both 
guitarfish species made up a high proportion of the total elasmobranch 
catch in the longline and gillnet fisheries over a 2-year period, is 
flawed, because, ``A high percentage of one species in a catch at one 
time says nothing about the trend of that species over time as 
different species can be targeted or caught with different methods or 
have different population structures and sources and sinks.''
    Response: We agree that a high percentage of one species in a catch 
at one time does not indicate a trend. However, the data in question 
were collected across two different fisheries (longline and gillnet) 
and in each case the data were collected over multiple months in both 
2007 and 2008 years (Echwikhi et al., 2013; Echwikhi et al.. 2012). 
Echwikhi et al. (2013) and Echwikhi et al. (2012) discuss their results 
in the context of the trends in elasmobranch abundance declines in the 
region. An additional citation (Brada[iuml] et al., 2006) has been 
added to the status review and provides further indication that both 
species have been and are commonly targeted and landed in southern 
Tunisia. Given the high proportion of these guitarfish species in the 
studied artisanal fisheries catches, and the fact that these species 
are known to be commonly targeted and landed in southern Tunisia, it is 
likely that the abundance trends for these species are similar to the 
overall trend of declining elasmobranch catches in southern Tunisia.
    Comment 7: One commenter made several comments that there is no 
evidence that R. rhinobatos and R. cemiculus were likely historically 
rare throughout most of the northwestern Mediterranean relative to 
other portions of its range (e.g., the southern and eastern 
Mediterranean). The same commenter challenged our conclusion that both 
species have likely always been rare in all parts of their Atlantic 
ranges north of the Strait of Gibraltar. This commenter asserted that 
we failed to include museum records and anthropological literature, but 
the commenter did not provide any references.
    Response: Our interpretation of the best available information is 
that R. rhinobatos and R. cemiculus were present, but likely uncommon 
or rare throughout most of the northwestern Mediterranean (including 
the waters off Spain, the seas around Italy, and, in the case of R. 
rhinobatos, the waters of France), with the exception of the waters 
around Sicily and the Balearic Islands. This interpretation is 
consistent with the conclusions reached in the best available 
scientific literature (Akyol and Capap[eacute] 2014; Capap[eacute] et 
al., 2006; Capap[eacute] et al., 1975; Dul[thorn]i[uuml] et al., 2005; 
Psomadakis et al., 2009). In the parts of their Atlantic ranges north 
of the Strait of Gibraltar, as stated in the status review, we found 
information that indicates both species have been rare for at least the 
last 45 years (ICES 2016), and no information that indicates either 
species was common at any time in what is known to be the northern 
extent of their ranges.
    To reach these conclusions we searched for data and publications 
related to both species, and guitarfishes in general, in all of the 
countries and seas that are considered part of either species' 
historical range. In the status review, we considered and incorporated 
the best available information, which included peer reviewed scientific 
articles, regional checklists of ichthyofauna, studies of fishers' 
knowledge, reports from conservation organizations (e.g., IUCN), and 
museum records. We also used relevant data from long term datasets such 
as trawl surveys and regional fisheries databases, including the MEDITS 
survey program (International bottom trawl survey in the Mediterranean) 
and the International Council for the Exploration of the Sea (ICES) 
DATRAS (Baino et al., 2001; Bertrand et al., 2000, ICES 2016). The only 
publications that we found that concluded that both species were common 
throughout the northwestern Mediterranean were the IUCN assessments of 
both species (Notarbartolo di Sciara et al., 2007a; Notarbartolo di 
Sciara et al., 2007b) and ICES (2010). All three of these reports 
specifically discuss and provide references for both species once being 
common off the Balearic Islands and Sicily, which make up a small 
amount of the overall area of the northwestern Mediterranean. No 
references were cited in these three reports to provide evidence that 
R. rhinobatos or R. cemiculus were common in the remaining area of the 
northwestern Mediterranean.
    Comment 8: One commenter noted the lack of explanation about what 
we mean by ``available literature.''
    Response: A summary of how we compiled the information used in the 
status review was added to the second paragraph of the Scope and Intent 
of Present Document section of the status review.
    Comment 9: Regarding the Overutilization for Commercial, 
Recreational, Scientific, or Educational Purposes section of the status 
review, one commenter stated: ``Generally in this section you 
misunderstand the difference between science and fisheries data. 
Scientifically gathered data is preferable and you are required to use 
the best available SCIENCE. Fisheries catch and landing data are not 
the best possible type of data, are not scientifically gathered and 
have serious flaws which you ignore entirely.''
    Response: The commenter incorrectly restricts the information we 
are required to use. ESA Section 4(b)(1)(A) states: ``The Secretary 
shall make determinations required by [Section 4](a)(1) solely on the 
basis of the best scientific and commercial data available

[[Page 6312]]

to him . . .'' There is a paucity of scientific studies on both species 
range wide, including the almost complete lack of fisheries independent 
population data, a fact that is well documented in the status review 
and proposed rule. We agree that additional scientifically gathered 
data would greatly enhance our ability to accurately understand the 
status of both species. However, when analyzing the threat of 
commercial fisheries to these guitarfishes, fisheries data are relevant 
and valuable. Therefore, this information must be considered as a 
source of ``best scientific and commercial data available,'' regardless 
of flaws with these data, which are acknowledged and discussed 
throughout the status review.
    Comment 10: Also regarding the discussion of commercial 
overutilization in the Overutilization for Commercial, Recreational, 
Scientific, or Educational Purposes section of the status review, one 
commenter asks: ``why is only bycatch considered?''
    Response: All types of interactions with commercial and artisanal 
fisheries are considered and described in the status review, including 
bycatch from industrial and artisanal fishing and targeted fishing of 
both guitarfish species by artisanal fishers using gillnets, longlines, 
and beach based lines. The commenter may have missed the information by 
focusing on only one part of the discussion within the section.
    Comment 11: Regarding the passage in the status review: ``At the 
time of the 2007 publication of the IUCN report Overview of the 
Conservation Status of Cartilaginous Fishes (Chondrichthyans) in the 
Mediterranean Sea,'' by Cavanagh and Gibson (2007) there were six 
Mediterranean elasmobranchs affected by target fisheries . . . It is 
unclear if R. rhinobatos and R. cemiculus were two of the six targeted 
species referenced in this report'', one commenter asked how it can be 
unclear if the two Rhinobatos species were not part of the six species 
referred to in Cavanagh and Gibson (2007).
    Response: Cavanagh and Gibson (2007) did not discuss which 
elasmobranch species or groups were part of past or present targeted 
fisheries, except for using angelsharks (Squatina spp.) as an example 
of species that had become so rare they were no longer targeted. 
Therefore, it was not possible to determine which six Mediterranean 
elasmobranch species were considered to be affected by targeted 
fisheries by Cavanagh and Gibson (2007).
    Comment 12: One commenter stated that the discussion of 
elasmobranch landing trends in Egyptian fisheries in the status review 
is contradictory because it claims both increased and decreased 
landings in Egyptian fisheries.
    Response: In Egypt, an increase in effort across fisheries led to a 
decrease in overall fisheries landings, but an increase in the landings 
of, and demand for, elasmobranchs, which had previously been discarded. 
The commenter appears to have misunderstood the discussion in the 
status review. Elasmobranch landings increased because the landings of 
preferred, non-elasmobranch targets were decreasing. Thus, 
elasmobranchs, which were always caught but previously discarded, have 
been landed at a higher rate by fishers to offset the decreasing 
availability of other species.
    Comment 13: Regarding the discussion in the status review of the 
development of the shark (and other shark-like elasmobranchs) fin 
industry in the Atlantic, one commenter stated, ``you claim a need for 
increased effort CAUSES a need to maximize profits. This is quite [a] 
twist on economic theory which usually has causation go from the desire 
for profit as the starting point causing need for more effort . . .''
    Response: This conclusion was reached by Diop and Dossa (2011) who 
provide the most comprehensive report on shark fishing in West Africa 
available. As explained in the status review, as fisheries in easily 
accessible areas became overexploited, fishers had to travel farther to 
find fish. This increased effort raised their cost of doing business 
(e.g., fuel costs). Because storage capacity is limited on fishing 
vessels, and shark fins are more valuable than other products that 
would take up more space, shrinking profit margins that resulted from 
the need to increase effort contributed to the unsustainable shift to 
retaining a larger percentage of the highest value products (i.e., 
shark fins from many sharks) rather than utilizing the entire shark or 
less valuable species.
    Comment 14: One commenter stated that while we noted in the status 
review that large sharks, such as dusky sharks, are predators of 
Rhinobatos spp., we failed to discuss how the decline of dusky sharks 
would impact R. cemiculus and R. rhinobatos.
    Response: Based on our analysis, predation is not posing a threat 
to either guitarfish species and, with the exception of one sentence in 
Camhi et al. (2005), we found no additional information regarding 
predation on guitarfishes by any shark species. Additionally, dusky 
sharks were an example of a large shark that preys on these species, 
but not the only shark species to do so.
    Comment 15: One commenter stated that in the Commercial 
Overutilization in the Atlantic section of the status review ``you 
claim Rhinobatos is found in the highest numbers but you fail to say 
compared to what or part of what grouping.''
    Response: The sentence the commenter is referring to is a quote 
provided in a series of quotes of the qualitative descriptions of 
elasmobranch fisheries in West African nations by Diop and Dossa 
(2011). In all cases, Diop and Dossa (2011) were discussing landing of 
guitarfishes relative to other elasmobranchs. Additional text has been 
added to the Commercial Overutilization in the Atlantic section to 
clarify this point.
    Comment 16: One commenter pointed out the recent evidence 
suggesting a decline in the demand for shark fins.
    Response: A paragraph further discussing trends in demand for shark 
fins and meat, as well as the uncertainty related to how these shifts 
in demand are impacting both guitarfish species, has been added to the 
Commercial Overutilization in the Atlantic section of the status 
review.
    Comment 17: One commenter stated that we are required to consider 
the interaction of the ESA Section 4 (a)(1) factors but failed to do 
so.
    Response: The commenter is correct that we are required to consider 
the interaction between the ESA 4(a)(1) factors, and we did so. We 
present a discussion of the interactions among the threats and each 
species' demographic risks in the Extinction Risk Analysis sections of 
the status review for each species. However, because data on both 
species and their threats are generally lacking, a more detailed 
analysis of the interactions among the threat factors was not possible.
    Comment 18: One commenter stated that we incorrectly limited our 
analysis to present and future threats only and that we should have 
also considered past threats.
    Response: The ESA and the section 4 regulations require that we 
list a species if the species is endangered or threatened because of 
any of the five factors in ESA section 4 (a)(1). Included in our risk 
analysis is an assessment of the manifestation of past threats that 
have contributed to the species' current status.
    Comment 19: One commenter stated, ``Foreseeable future discussion 
is confounded and you just assert your timeline, you provide no 
evidence it is the best available. Assertions really arent [sic] 
facts.''

[[Page 6313]]

    Response: As discussed in Box 2: Defining Foreseeable Future in the 
status review, the foreseeable future for both guitarfish species (15-
20 years) is based on these species' life histories and the main 
threats each species faces. Given the relatively low productivity of 
these species, it will likely take more than one generation for these 
species to recover. 15-20 years corresponds to approximately three 
generations of R. cemiculus, which likely reproduces at a slower rate 
than R. rhinobatos. 15-20 years is also a reasonable period of time to 
project the continued threats of overutilization and inadequacy of 
existing regulations. Many of the regulations that protect these 
species have recently been adopted and are inadequately enforced. Given 
both species' reproductive life history traits, 15-20 years is a 
reasonable amount of time to foresee continued decline of both species 
should these regulations continue to be inadequate, which seems likely 
at this time. The commenter provided no information to invalidate any 
or all of the justification for our definition.
    Comment 20: One commenter pointed out that in our discussion of the 
increase in abundance of R. rhinobatos in the Tunis Northern and 
Southern Lagoon after restoration, we did not discuss the possibility 
that individuals could be migrating into the area without an increase 
in the overall population.
    Response: A sentence acknowledging that it is unknown if the 
increase of R. rhinobatos in the Tunis Lagoons is the result of an 
increasing population or simply individuals migrating into what has 
become suitable habitat has been added to the Demographic Risk Analysis 
section of the status review.
    Comment 21: One commenter stated that we missed the following 
references: Ali et al. (2008), Ambrose (2004), Bauchot (1987), 
Faruggia, Feretti, Lloris, and Rucabado (1998), McEachran and Capape 
(1984), Seck et al. (2004), Valadou (2003), and Whitehead et al. 
(1984).
    Response: In response to this comment, we conducted a search for 
the references listed that we were unaware of, which were Ambrose 
(2004), Valadou (2003), and Faruggia et al. (1998). Only an abstract 
for Ambrose. (2004) was available online, which contained no 
information about guitarfishes. Because we were not able to review this 
publication we have not included it in this analysis. We requested but 
have not received a copy of Valadou (2003), which is a master's 
dissertation that we cannot access online. We were also unable to find 
Faruggia et al. (1998) based on the information provided.
    We were already aware of Seck et al. (2004), Ali et al. (2008), 
Bauchot (1987), McEachran and Capape (1984), and Whitehead et al. 
(1984). Seck et al. (2004) was used and cited in our draft status 
review and proposed rule. Ali et al. (2008) was not available online or 
through interlibrary loan during the development of the status review, 
proposed rule, and final rule, and we reached out to one of the authors 
regarding this and another publication but have not received a 
response. Because this comment was submitted anonymously, we also could 
not contact the commenter with a request for a copy of this or other 
references. Bauchot (1987), McEachran and Capape (1984), and Whitehead 
et al. (1984) are identification guides that provide basic taxonomic 
and life history information consistent with information already 
included in the status review. Thus, these references provided no 
additional information that would affect our status review.
    Comment 22: One comment letter asserted that our decision to list 
R. rhinobatos and R. cemiculus as threatened is arbitrary and 
capricious because the commenter believes that both guitarfish species 
are ``in at least as bad a condition'' as three species of angelshark, 
Squatina aculeata, S. oculata, and S. squatina, which are listed as 
endangered under the ESA (81 FR 50394). This commenter provided the 
following reasons for this opinion: (1) These five species are all 
demersal elasmobranchs that share similar ranges, thus they face 
similar spatial threats; (2) The maximum depth that the guitarfishes 
occur in (100m) is shallower than the angelsharks' maximum depth 
(550m), thus the guitarfishes must be easier for humans to catch, 
increasing their vulnerability; (3) Guitarfishes have a faster 
reproductive cycle, smaller litter size, later age at maturity, and 
likely longer life span than the angelsharks, which makes the 
guitarfishes less resilient to overexploitation; (4) The guitarfishes, 
but not the angelsharks, are known to have an inshore migration for 
reproduction, putting the guitarfishes at a greater risk from human 
threats; (5) There is more evidence of population structuring for the 
guitarfishes than the angelsharks, resulting in smaller, isolated, less 
resilient populations; (6) There is higher commercial demand and fewer 
conservation efforts for the guitarfishes than the angelsharks; (7) 
Abundance data, including data from the Canary Islands and the 
northwest Mediterranean, support a worse status for the guitarfishes 
than the angelsharks, and; (8) The guitarfishes were likely in demand 
and serially exploited even earlier than the angelsharks.
    Response: While we acknowledge that all five species share some 
similarities in biology, ecology, and threats, we do not base decisions 
on whether or not one species should be listed as threatened or 
endangered solely on similarities in life history traits or 
circumstances with other listed species. We assess each species 
individually based on the best scientific and commercial information 
available, considering both the demographic risks facing the species as 
well as current and future threats that may affect the species' status. 
Data on all five species are lacking, but the best available 
information shows that all three angelsharks are extremely rare 
throughout most of their ranges, with evidence of declines in abundance 
and subsequent extirpations and range curtailment, while both 
guitarfishes are likely still somewhat abundant in relatively larger 
portions of their ranges, such as within portions of the southern and 
eastern Mediterranean and West Africa (Echwikhi et al., 2012; Golani 
2006; Ismen et al., 2007, Lteif 2015, M. Ducrocq, Parcs Gabon, pers. 
comm. to J. Shultz, NMFS, 21 June, 2016; Miller 2016, Saad et al., 
2006).
    To specifically address some of the commenter's points about 
guitarfish, regarding point (6), while both the guitarfish and the 
angelsharks face threats from commercial fishing, it is not appropriate 
to directly compare the fishing related threats these species face. For 
example, the fin trade has contributed to the decline of the 
guitarfishes but is not a direct threat to the angelsharks, while 
historical commercial fishing pressure on angelsharks has already made 
these species so rare that they can no longer support fisheries in most 
areas. Regarding points (5) and (7), the commenter provided no 
references to verify the assertions about the two guitarfishes' 
population structures or abundance throughout their respective ranges 
or the presence of guitarfish in the Canary Islands, so we are unable 
to determine the validity of any data upon which the commenter based 
these assertions. As such, without any new information to consider, we 
maintain our previous conclusion in the proposed rule that the two 
guitarfish species are likely to be in danger of extinction in the 
foreseeable future throughout their ranges and, thus, are threatened 
species under the ESA.
    Additionally, we also wish to clarify some of the information 
presented for

[[Page 6314]]

angelsharks, particularly in response to the commenter's points in (2) 
and (4). We note that while S. aculeata and S. oculata have maximum 
depths of up to 500 m and 560 m, respectively, S. aculeata can be found 
in depths as shallow as 30 m and S. oculata is more commonly found in 
depths between 50 m and 100 m. Squatina squatina is generally found in 
shallower water, from inshore areas out to the continental shelf in 
depths of 5 m to 150 m. This species is also thought to conduct inshore 
migrations in the summer, with reports of beachgoers being bitten by 
small (likely juvenile) angelsharks (suggesting inshore migration for 
reproduction). This information on these species, as well as additional 
information on the threats and status of the three angelsharks, can be 
found in the proposed (80 FR 40969; July 14, 2015) and final rules (81 
FR 50394; August 1, 2016) listing these species under the ESA, as well 
as the status review for these three species (Miller 2016), available 
on our Web site at www.nmfs.noaa.gov/pr/species/petition81.htm.
    Comment 23: The Embassy of Greece, through the Hellenic Ministry of 
Rural Development and Food, commented that Greece meets its obligations 
arising from international conventions, such as the Barcelona 
Convention, and is a party to the General Fisheries Commission of the 
Mediterranean (GFCM), the regional fisheries management organization 
whose convention area includes Mediterranean waters and the Black Sea. 
The measures adopted by the GFCM are incorporated into European Law. 
The Ministry specifically highlighted GFCM recommendation GFCM/36/3012/
3, which prohibits those elasmobranchs on Annex II of the Specially 
Protected Areas and Biological Diversity (SPA/BD) Protocol to the 
Barcelona Convention (which includes both guitarfish species) from 
being retained on board, transhipped, landed, transferred, stored, sold 
or displayed, or offered for sale. The Ministry noted that the species 
must be released, as far as possible, unharmed and alive, and that 
there is an obligation for owners of fishing vessels to record 
information related to fishing activities, including capture data, 
incidental catch, and releases and/or discards of species. The Ministry 
recently adopted and released Circular No. 4531/83795/20-07-2016 to 
inform all stakeholders of the provisions of the above protection 
measures.
    Response: We thank the Hellenic Ministry of Rural Development and 
Food for the comments and have updated the status review accordingly. 
We note that while these regulations will likely, to some extent, 
reduce the fishing related mortality to both guitarfish species, it 
does not appear that either species is common in Greek waters. 
Therefore we conclude that these regulatory mechanisms are unlikely to 
significantly decrease both Rhinobatos species' risks of extinction.
    Comment 24: The Lebanese Ministry of Agriculture, through the 
Embassy of Lebanon, commented that fishing both Rhinobatos species is 
prohibited in Lebanon by decision number 1045/1 issued on November 25, 
2014, based on GFCM recommendation GFCM/36/3012/3. Based on this 
decision, they welcomed our proposal to list both guitarfishes species 
as threatened under the ESA.
    Response: We thank the Lebanese Ministry of Agriculture for the 
comments and have updated the status review accordingly. We note that 
the information available to us (Lteif 2015) indicates that regulations 
related to these guitarfish species are not adequately enforced. 
However, we note that these conclusions were reached based on data that 
were collected up until approximately the time that decision number 
1045/1 was issued, so the enforcement of relevant regulations may now 
be effective. Given the uncertainty regarding the enforcement of these 
regulations, and the relatively small portion of both species' ranges 
that occur in Lebanese waters, we conclude that these regulatory 
mechanisms are unlikely to significantly decrease both Rhinobatos 
species' risks of extinction range wide.
    Comment 25: One commenter noted that in the Inadequacy of Existing 
Regulations section of the status review we did not mention relevant 
Turkish laws, species specific laws for Rhinobatos species in Banc 
d'Arguin National Park (Mauritania), and a ban on finning in Nigeria.
    Response: The commenter provided no references regarding any of 
these regulations. We found no information about Turkish laws relevant 
to guitarfishes or sharks and rays in general and the General Fisheries 
Commission for the Mediterranean National Legislation Database 
(available at: http://nationallegislation.gfcmsecretariat.org) lists no 
such relevant law. However, some additional information about general 
fisheries management efforts in Turkey, including vessel registrations, 
gear restrictions, and seasonal area closures has been added to the 
Regulatory Mechanisms in the Mediterranean section of the status 
review. Because these management efforts are not specific to 
guitarfish, and we have no information on how these efforts affect 
guitarfish in Turkey, this new information does not change our 
conclusion that current regulations are inadequate to protect either 
species.
    As discussed in the status review, fishing for all shark species, 
including guitarfishes, has been banned since 2003 in Banc d'Arguin 
National Park. Additional information on regulatory efforts from 1998 
to 2003 has been added to the Regulatory Mechanisms in the Atlantic 
section of the status review. This information provides context for how 
the current protective regulations were developed in Banc d' Arguin, 
which are currently adequately protecting both species in this small 
portion of their ranges, a fact that was acknowledged in the draft 
status review.
    The fact that Nigeria prohibits the dumping of shark carcasses at 
sea has also been added to the Regulatory Mechanisms in the Atlantic 
section. While this information augments our knowledge of regulations 
that may affect these species, we found no information on how this 
regulation is enforced and very little information on guitarfish in 
Nigeria in general. Thus, it does not change our conclusion that 
current regulations are inadequate to protect either species.
    Comment 26: One commenter strongly supported our proposed rule and 
encouraged us to finalize the our listing decision in a timely manner, 
incorporate comments and suggestions submitted during the comment 
period, and incorporate a full analysis of all the factors under 
section 4(a)(1) of the ESA.
    Response: We appreciate this comment. We have incorporated all 
substantive comments received into the status review and this final 
rule and fully analyzed the ESA section 4(a)(1) factors using the best 
available scientific and commercial information.

Summary of Changes From the Proposed Listing Rule

    We reviewed, and incorporated as appropriate, scientific data from 
references that were not previously included in the draft status review 
(Newell 2016) and proposed rule (81 FR 64094; September 19, 2016). We 
included the following references and communications, which, together 
with previously cited references, represent the best available 
scientific and commercial data on R. cemiculus and R. rhinobatos: 
Ambrose et al. (2005), Ateweberhan et al. (2012), Carla Jazzar, Embassy 
of Lebanon, pers. comm. to D. Wieting, NMFS (7 December, 2016), 
Caverivi[egrave]re and Andriamirado (1997), Coll (2010), D. Berces, 
University of Florida, pers. comm. to B. Newell,

[[Page 6315]]

NMFS, (14 November, 2016), Farrugio et al. (1993), Hellenic Ministry of 
Rural Development pers. comm. (2016), HSI (2016), ICES (2010), and OECD 
(undated). However, the information not previously included in the 
draft status review or proposed rule does not present significant new 
findings that change either of our proposed listing determinations. The 
updated status review (Newell 2016) is available at: www.nmfs.noaa.gov/pr/species/petition81.htm.

Status Review

    The status review for both guitarfish species was conducted by a 
NMFS biologist in the Office of Protected Resources. In order to 
complete the status review, we compiled information on the species' 
biology, ecology, life history, threats, and conservation status from 
information contained in the petition, our files, a comprehensive 
literature search, and consultation with experts. Prior to publication 
of the proposed rule, the status review was subjected to peer review. 
Peer reviewer comments are available at www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. This status review provides 
a thorough discussion of the life history, demographic risks, and 
threats to the two guitarfish species. We considered all identified 
threats, both individually and cumulatively, to determine whether these 
guitarfish species respond in a way that causes actual impacts at the 
species level. The collective condition of individual populations was 
also considered at the species level, according to the four viable 
population descriptors discussed above.

Summary of Factors Affecting the Two Guitarfish Species

    We considered whether any one or a combination of the five threat 
factors specified in section 4(a)(1) of the ESA contribute to the 
extinction risk of these species. The comments that we received on the 
proposed rule and the additional information that became available 
since the publication of the proposed rule did not change our 
conclusions regarding any of the section 4(a)(1) factors or their 
interactions for these species. Therefore, we incorporate herein all 
information, discussion, and conclusions on the summary of factors 
affecting the two guitarfish species in the status review (Newell 2016) 
and proposed rule (81 FR 64094; September 19, 2016).

Extinction Risk

    None of the information we received from public comment on the 
proposed rule affected our extinction risk evaluations of these two 
guitarfish species. Therefore, we incorporate herein all information, 
discussion, and conclusions, with the minor updates noted above, on the 
extinction risk of the two guitarfish species in the status review 
(Newell 2016) and proposed rule (81 FR 64094; September 19, 2016).

Protective Efforts

    As part of our evaluation of the status of the guitarfishes, we 
considered conservation efforts to protect each species and evaluated 
whether these conservation efforts are adequate to mitigate the 
existing threats to the point where extinction risk is significantly 
lowered and the species' status is improved. None of the information we 
received from public comment on the proposed rule affected our 
conclusions regarding conservation efforts to protect the two 
guitarfish species. We incorporate herein all information, discussion, 
and conclusions on the protective efforts for both guitarfish species 
in the status review (Newell 2016) and proposed rule (81 FR 64094; 
September 19, 2016).

Final Determination

    There is significant uncertainty regarding the status of the 
current populations of both R. rhinobatos and R. cemiculus, but both 
species may still be relatively common, although very likely below 
their historical population levels, in Tunisia, Israel, Lebanon, Syria, 
and southeastern Turkey. Based on this information, and the best 
available scientific and commercial information, as summarized here, in 
the proposed rule (81 FR 64094; September 19, 2016), and in Newell 
(2016), we find that neither Rhinobatos species is currently at high 
risk of extinction throughout their ranges. However, both species are 
at moderate risk of extinction. We assessed the ESA section 4(a)(1) 
factors and conclude that R. rhinobatos and R. cemiculus face ongoing 
threats of overutilization by fisheries and inadequate existing 
regulatory mechanisms throughout their ranges. Both species have also 
suffered a curtailment of a large portion of their historical ranges. 
These species' natural biological vulnerability to overexploitation and 
present demographic risks (declining abundance, decreasing size of 
reproductive individuals, and low productivity) are currently 
exacerbating the negative effects of these threats. Further, ongoing 
conservation efforts are not adequate to improve the status of these 
species. Thus, both species likely to become endangered throughout 
their ranges in the foreseeable future (15-20 years). Therefore, we are 
listing both species as threatened under the ESA.

Effects of Listing

    Conservation measures provided for species listed as threatened 
under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal 
agency requirements to consult with NMFS under section 7 of the ESA to 
ensure their actions do not jeopardize the species or result in adverse 
modification or destruction of critical habitat should it be designated 
(16 U.S.C. 1536); designation of critical habitat if prudent and 
determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 
U.S.C. 1538) through a rule promulgated under section 4(d). In 
addition, recognition of the species' plight through listing promotes 
conservation actions by Federal and State agencies, foreign entities, 
private groups, and individuals.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS 
regulations require Federal agencies to consult with us to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of listed species or destroy or 
adversely modify critical habitat. It is unlikely that the listing of 
these species under the ESA will increase the number of section 7 
consultations, because these species occur entirely outside of the 
United States and are unlikely to be affected by Federal actions.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 
1533(a)(3)(A)) requires that, to the extent prudent and determinable, 
critical habitat be designated concurrently with the listing of a 
species. However, critical habitat shall not be designated in foreign 
countries or other areas outside U.S. jurisdiction (50 CFR 424.12 (g)).
    The best available scientific and commercial data as discussed 
above identify the geographical areas occupied

[[Page 6316]]

by R. rhinobatos and R. cemiculus as being entirely outside U.S. 
jurisdiction, so we cannot designate occupied critical habitat for 
these species. We can designate critical habitat in areas in the United 
States currently unoccupied by the species if the area(s) are 
determined by the Secretary to be essential for the conservation of the 
species. The best available scientific and commercial information on 
these species does not indicate that U.S. waters provide any specific 
essential biological function for either of the Rhinobatos species. 
Therefore, based on the available information, we are not designating 
critical habitat for R. cemiculus or R. rhinobatos.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires NMFS to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. Because we are listing 
R. rhinobatos and R. cemiculus as threatened, no prohibitions of 
section 9(a)(1) of the ESA will apply to these species.

Protective Regulations Under Section 4(d) of the ESA

    We are listing R. rhinobatos and R. cemiculus as threatened under 
the ESA. In the case of threatened species, ESA section 4(d) leaves it 
to the Secretary's discretion whether, and to what extent, to extend 
the section 9(a) ``take'' prohibitions to the species, and authorizes 
us to issue regulations necessary and advisable for the conservation of 
the species. Thus, we have flexibility under section 4(d) to tailor 
protective regulations, taking into account the effectiveness of 
available conservation measures. The section 4(d) protective 
regulations may prohibit, with respect to threatened species, some or 
all of the acts which section 9(a) of the ESA prohibits with respect to 
endangered species. These section 9(a) prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Because neither species has ever occupied U.S. waters, and the United 
States has no known commercial or management interest in either 
species, we are not applying any section 9(a) prohibitions to either 
species at this time.

References

    A complete list of references used in this final rule is available 
upon request (see ADDRESSES).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule 
does not have significant federalism effects and that a federalism 
assessment is not required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: January 10, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, paragraph (e) add new entries for ``Guitarfish, 
blackchin'' and ``Guitarfish, common'', in alphabetical order by common 
name under the ``Fishes'' table subheading to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Species \1\
-------------------------------------------------------------------------------------------    Citation(s) for listing         Critical
                                                                    Description of listed          determination(s)            habitat        ESA rules
              Common name                    Scientific name               entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                       * * * * * *
Fishes
 
                                                                       * * * * * *
Guitarfish, blackchin.................  Rhinobatos cemciculus...  Entire species..........  82 FR [Insert Federal                      NA           NA.
                                                                                             Register page where the
                                                                                             document begins], January
                                                                                             19, 2017.
Guitarfish, common....................  Rhinobatos rhinobatos...  Entire species..........  82 FR [Insert Federal                      NA           NA.
                                                                                             Register page where the
                                                                                             document begins], January
                                                                                             19, 2017.
 
                                                                      * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).


[[Page 6317]]

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[FR Doc. 2017-00680 Filed 1-18-17; 8:45 am]
 BILLING CODE 3510-22-P