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