[Federal Register Volume 85, Number 225 (Friday, November 20, 2020)]
[Notices]
[Pages 74320-74322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25625]



[[Page 74320]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 201105-0292; RTID 0648-XR114]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Giant Devil Ray as Threatened or Endangered Under the 
Endangered Species Act

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

ACTION: Notification of 90-Day petition finding.

-----------------------------------------------------------------------

SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
giant devil ray (Mobula mobular) as an endangered or threatened species 
under the Endangered Species Act (ESA). The petition requests that we 
list the giant devil ray (M. mobular) as a distinct species with a 
limited range throughout the Mediterranean Sea. Information in our 
files indicates a recent taxonomic revision that found M. mobular and 
M. japanica (spinetail devilray) to be synonymous species (i.e., same 
taxon described and named more than once independently) with 
circumglobal distribution in tropical and warm temperate seas. The 
petition relies on obsolete information to identify the species, and 
therefore we find that the petition does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted.

ADDRESSES: Interested persons may obtain a copy of the petition online 
at the NMFS website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings.

FOR FURTHER INFORMATION CONTACT: Stephania Bolden (727 551-5768) or 
Lisa Manning (301 427-8466), NMFS Office of Protected Resources, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On February 10, 2020, we received a petition from Friends of 
Animals to list the giant devil ray (M. mobular) as a threatened or 
endangered species throughout its entire range under the ESA. The 
petition describes the range of the giant devil ray as being limited to 
the Mediterranean Sea. The petition also requests that critical habitat 
be designated for the species in Mediterranean waters. The petition is 
available online (see ADDRESSES).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When we find that substantial scientific or commercial information in a 
petition indicates that the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned, which includes 
conducting a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review and 12-month finding.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife 
Service (USFWS) policy clarifies the agencies' interpretation of the 
phrase ``distinct population segment'' for the purposes of listing, 
delisting, and reclassifying a species under the ESA (61 FR 4722; 
February 7, 1996). A species, subspecies, or DPS is ``endangered'' if 
it is in danger of extinction throughout all or a significant portion 
of its range, and ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 
1532(6) and (20)). Pursuant to the ESA and our implementing 
regulations, we determine whether species are threatened or endangered 
based on any one or a combination of the following five section 4(a)(1) 
factors: The present or threatened destruction, modification, or 
curtailment of habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; inadequacy of existing regulatory mechanisms; and any other 
natural or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(h)(1)(i) define ``substantial scientific or commercial 
information'' in the context of reviewing a petition to list, delist, 
or reclassify a species as credible scientific or commercial 
information in support of the petition's claims such that a reasonable 
person conducting an impartial scientific review would conclude that 
the action proposed in the petition may be warranted. Conclusions drawn 
in the petition without the support of credible scientific or 
commercial information will not be considered ``substantial 
information.'' In reaching the initial (90-day) finding on the 
petition, we will consider the information described in sections 50 CFR 
424.14(c), (d), and (g) (if applicable). Our determination as to 
whether the petition provides substantial scientific or commercial 
information indicating that the petitioned action may be warranted 
depends in part on the degree to which the petition includes the 
following types of information: (1) Information on current population 
status and trends and estimates of current population sizes and 
distributions, both in captivity and the wild, if available; (2) 
identification of the factors under section 4(a)(1) of the ESA that may 
affect the species and where these factors are acting upon the species; 
(3) whether and to what extent any or all of the factors alone or in 
combination identified in section 4(a)(1) of the ESA may cause the 
species to be an endangered species or threatened species (i.e., the 
species is currently in danger of extinction or is likely to become so 
within the foreseeable future), and, if so, how high in magnitude and 
how imminent the threats to the species and its habitat are; (4) 
information on adequacy of regulatory protections and effectiveness of 
conservation activities by States as well as other parties, that have 
been initiated or that are ongoing, that may protect the species or its 
habitat; and (5) a complete, balanced representation of the relevant 
facts, including information that may contradict claims in the 
petition. See 50 CFR 424.14(d).
    We may also consider information readily available at the time the 
determination is made. We are not required to consider any supporting 
materials cited by the petitioner if the petitioner does not provide 
electronic or

[[Page 74321]]

hard copies, to the extent permitted by U.S. copyright law, or 
appropriate excerpts or quotations from those materials (e.g., 
publications, maps, reports, letters from authorities). See 50 CFR 
424.14(c)(6).
    At the 90-day finding stage, we evaluate the petitioners' request 
based upon the information in the petition including its references and 
the information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude it supports the petitioners' assertions. 
Conclusive information indicating that the species may meet the ESA's 
requirements for listing is not required to make a positive 90-day 
finding. We will not conclude that a lack of specific information alone 
negates a positive 90-day finding if a reasonable person would conclude 
that the unknown information itself suggests an extinction risk of 
concern for the species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating that the subject species may be 
either threatened or endangered, as defined by the ESA. First, we 
evaluate whether the information presented in the petition, along with 
the information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk that is cause for concern; this may be 
indicated in information expressly discussing the species' status and 
trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union for the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but such classification alone may 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species classifications 
under IUCN and the ESA are not equivalent; data standards, criteria 
used to evaluate species, and treatment of uncertainty are also not 
necessarily the same. Thus, when a petition cites such classifications, 
we will evaluate the source of information that the classification is 
based upon in light of the standards on extinction risk and impacts or 
threats discussed above.

Analysis of the Petition and Information Readily Available in NMFS 
Files

    As mentioned above, in analyzing the request of the petitioner, we 
first evaluate whether the information presented in the petition, along 
with information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA.
    To evaluate the petition, we first looked at the taxonomic 
description in the petition that referred to the M. mobular by one of 
its common names, ``giant devil ray.'' The petition includes a ``full 
taxonomic classification'' of the giant devil ray, and identifies M. 
mobular (Raia mobular Bonnaterre 1778) within the genus Mobula. The 
petition then asserts there are nine different species of the devil ray 
and lists them as: Giant devil ray (M. mobular), lesser Guinean devil 
ray (M. rochebrunei), Chilean devil ray (M. tarapacana), pygmy devil 
ray (M. eregoodootenkee), smoothtail Mobula (M. munkiana), bentfin 
devil ray (M. thurstoni), spinetail devil ray (M. japanica), Atlantic 
devil ray (M. hypostoma), and the shortfin devil ray (M. kuhlii). The 
petition cites the M. mobular 2015 IUCN Red List Report (Notarbartolo 
di Sciara et al. 2015) as reference for the taxonomy of the giant devil 
ray and includes as the source a 12-page document downloaded from the 
IUCN website (Notarbartolo di Sciara et al. 2015; that appears to be 
downloaded on January 24, 2020). However, this source citation for the 
taxonomic description provided by the petitioner includes on the first 
page next to the scientific name of the species the statement: ``This 
concept is no longer recognized.''
    The 2019 IUCN Red List Report for M. mobular (Marshall et al. 
2019), which was readily available in our files, describes a 2017 
taxonomic revision that combines the individuals previously identified 
as M. japanica with those classified as M. mobular. Citing both 
morphological examination and an increased understanding of molecular 
genetics, the 2017 taxonomic revision found M. japanica to be a junior 
synonym to the senior M. mobular (White et al. 2017 with agreement by 
Hosegood et al. 2018). This taxonomic revision is reflected in the 2019 
IUCN Red List Report (Marshall et al. 2019), which no longer recognizes 
M. japanica and identifies the range of M. mobular as ``circumglobal in 
temperate and tropical waters throughout all oceans.''

[[Page 74322]]

    Thus, while the petition identifies M. mobular as a species 
separate from M. japanica, recent improved knowledge of phylogenetic 
relationships, available when the petition was submitted to NMFS in 
2020, indicates the species is no longer a valid concept. Information 
in our files, as well as the source citation submitted with the 
petition (IUCN Red List 2015), clearly indicate the species identified 
in the petition is based on an obsolete taxonomic classification.
    Because we concluded that the petition does not identify a valid 
species for listing, we do not need to evaluate whether the information 
in the petition indicates the species may be an endangered or 
threatened species based on ESA section 4(a)(1) factors. Furthermore, 
our regulations specify that critical habitat will not be designated 
within foreign countries or in areas outside the jurisdiction of the 
United States (50 CFR 424.12(g)). Thus, we conclude that the petition 
does not meet the requirements outlined in our regulations indicating 
that the petitioned action may be warranted.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude that because 
of a recent taxonomic revision the species identified in the petition 
is no longer a valid concept. Therefore, the petition does not present 
substantial scientific or commercial information indicating the 
requested actions may be warranted. We note our regulations (50 CFR 
424.12(g)) specify that critical habitat will not be designated within 
foreign countries or in areas outside the jurisdiction of the United 
States.

References Cited

    A complete list of references is available upon request to the NMFS 
Office of Protected Resources (see FOR FURTHER INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 10, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-25625 Filed 11-19-20; 8:45 am]
BILLING CODE 3510-22-P