[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Rules and Regulations]
[Pages 2916-2931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01031]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 160105011-7999-03]
RIN 0648-XE390


Endangered and Threatened Wildlife and Plants; Final Rule To List 
the Giant Manta Ray as Threatened Under the Endangered Species Act

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

ACTION: Final rule.

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

SUMMARY: We, NMFS, announce a final rule to list the giant manta ray 
(Manta birostris) as threatened under the Endangered Species Act (ESA). 
We have reviewed the status of the giant manta ray, including efforts 
being made to protect this species, and considered public comments 
submitted on the proposed rule as well as new information received 
since publication of the proposed rule. We have made our final 
determinations based on the best scientific and commercial data 
available. At this time, we conclude that critical habitat is not 
determinable because data sufficient to perform the required analyses 
are lacking; however, we solicit information on habitat features and 
areas in U.S. waters that may meet the definition of critical habitat 
for the giant manta ray.

DATES: This final rule is effective February 21, 2018.

ADDRESSES: Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910. 
Copies of the petition, status review report, and Federal Register 
notices are available on our website at http://www.fisheries.noaa.gov/pr/species/fish/manta-ray.html.

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

SUPPLEMENTARY INFORMATION: 

Background

    On November 10, 2015, we received a petition from Defenders of 
Wildlife to list the giant manta ray (M. birostris), reef manta ray (M. 
alfredi) and Caribbean manta ray (M. c.f. birostris) as threatened or 
endangered under the ESA throughout their respective ranges, or, as an 
alternative, to list any identified distinct population segments (DPSs) 
as threatened or endangered. The petitioners also requested that 
critical habitat be designated concurrently with listing under the ESA. 
We found that the petitioned action may be warranted for the giant 
manta ray and reef manta ray and announced the initiation of status 
reviews for these species, but found that the Caribbean manta ray is 
not a taxonomically valid species or subspecies for listing, and 
explained the basis for that finding (81 FR 8874, February 23, 2016). 
On January 12, 2017, we published a proposed rule to list the giant 
manta ray as a threatened species under the ESA and made a 12-month 
determination that the reef manta ray did not warrant listing under the 
ESA (82 FR 3694). We solicited information on the proposed listing 
determination, the development of proposed protective regulations, and 
designation of critical habitat for the giant manta ray, and the 
comment period was open through March 13, 2017. This final rule 
provides a discussion of the information we received during and after 
the public comment period and our final determination on the petition 
to list the giant manta ray under the ESA.

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 first consider whether a group of organisms 
constitutes a ``species'' under section 3 of the ESA, then whether the 
status of the species qualifies it for listing as either threatened or 
endangered. Section 3 of the ESA defines 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.'' On February 7, 1996, NMFS and the U.S. Fish and Wildlife 
Service (USFWS; together, the Services) adopted a policy describing 
what constitutes a DPS of a taxonomic species (61 FR 4722). The joint 
DPS policy identified two elements that must be considered when 
identifying a DPS: (1) The discreteness of the population segment in 
relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the significance of the population segment to the 
species (or subspecies) to which it belongs.
    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.'' Thus, in the 
context of the ESA, the Services interpret an ``endangered species'' to 
be one that is presently in danger of extinction. A ``threatened 
species'' 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 is or is likely to 
become in danger of extinction, either presently (endangered) or in the 
foreseeable future (threatened).

[[Page 2917]]

    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 considers 
the life history of the species, habitat characteristics, availability 
of data, particular threats, ability to predict threats, and the 
ability to reliably 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.
    Additionally, as the definition of ``endangered species'' and 
``threatened species'' makes clear, the determination of status can be 
based on either assessment of the rangewide status of the species, or 
the status of the species in a ``significant portion of its range.'' A 
species may be endangered or threatened throughout all of its range or 
a species may be endangered or threatened throughout only a significant 
portion of its range. The Services published a final policy to clarify 
the interpretation of the phrase ``significant portion of its range'' 
(SPR) in the ESA definitions of ``threatened species'' and ``endangered 
species'' (referred to as the ``SPR Policy,'' 79 FR 37577; July 1, 
2014). The policy expressly recognizes that the SPR phrase provides an 
independent basis for listing and sets out the following principles:
    (1) If a species is found to be endangered or threatened throughout 
only an SPR, the entire species is listed as endangered or threatened, 
respectively, and the ESA's protections apply to all individuals of the 
species wherever found.
    (2) A portion of the range of a species is ``significant'' if the 
species is not currently endangered or threatened throughout its range, 
but the portion's contribution to the viability of the species is so 
important that without the members in that portion (i.e., if the 
members were hypothetically lost), the species would be in danger of 
extinction, or likely to become so in the foreseeable future, 
throughout all of its range.
    (3) The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
USFWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' life 
cycle, even if they are not used regularly (e.g., seasonal habitats). 
Lost historical range is relevant to the analysis of the status of the 
species, but it cannot constitute an SPR.
    (4) If a species is endangered or threatened throughout an SPR, and 
the population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies.
    The statute also requires us to determine whether any species is 
endangered or threatened throughout all or a significant portion of its 
range as a result of any one or a combination of the following five 
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 to address 
identified threats; or other natural or manmade factors affecting its 
continued existence (ESA section 4(a)(1)(A)-(E)).
    To make 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 assess the extinction risk of the species. In 
assessing the extinction risk of the giant manta ray, in conjunction 
with the section 4(a)(1) factors, we considered demographic risk 
factors, such as those developed by McElhany et al. (2000), to organize 
and evaluate the forms of risks. The demographic risk analysis is an 
assessment of the manifestation of past threats that have contributed 
to the species' current status and also informs the consideration of 
the biological response of the species to present and future threats. 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our previous 
status reviews (see http://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 demographic viability factors: abundance and trends, population 
growth rate or productivity, spatial structure and connectivity, and 
genetic diversity. These viability factors reflect concepts that are 
well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk.
    Scientific conclusions about the overall risk of extinction faced 
by the giant manta ray under present conditions and in the foreseeable 
future are based on our evaluation of the species' demographic risks 
and ESA section 4(a)(1) threat factors. Our assessment of overall 
extinction risk considered the likelihood and contribution of each 
particular factor, synergies among contributing factors, and the 
cumulative impact of all demographic risks and threats on the giant 
manta ray.
    Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made by any State or foreign 
nation or political subdivision thereof to protect the species. 
Therefore, prior to making a listing determination, we also assess such 
protective efforts to determine if they are adequate to mitigate the 
existing threats. In evaluating the efficacy of existing domestic 
protective efforts, we rely on the Services' joint Policy on Evaluation 
of Conservation Efforts When Making Listing Decisions (``PECE''; 68 FR 
15100; March 28, 2003) for any conservation efforts that have not been 
implemented, or have been implemented but not yet demonstrated 
effectiveness.

Summary of Comments

    In response to our request for public comments on the proposed 
rule, we received information and/or comments from 25 parties. The 
large majority of commenters supported the proposed listing 
determination but provided no new or substantive data or information 
relevant to the listing of the giant manta ray. We also directly 
solicited comments from the foreign ambassadors of countries where the 
giant manta ray occurs and received a response from the Aquatic 
Resources Authority and the Ministry of the Environment of Panama and 
the Fisheries and Aquaculture Regulatory Department of Guatemala, both 
in support of the proposed listing determination. Summaries of the 
substantive public comments received and our responses are provided 
below and organized by topic.

Comments on ESA Section 4(a)(1) Factors

    Comment 1: One commenter stated that the giant manta ray is widely 
distributed over vast tropical oceans and, therefore, is not a 
vulnerable species tied to specific restricted habitats. The commenter 
further noted that according to their own literature search, manta rays 
do not appear to have any predators, and the commenter

[[Page 2918]]

did not know of any reports of manta rays being eaten by sharks. The 
commenter concluded that because the manta ray has only one pup per 
birth, this indicates very low predation on the young. Finally, the 
commenter stated that there are no existing or historical commercial or 
sport fisheries for manta rays in U.S. waters and, thus, the stock has 
not been affected by any fisheries.
    Response: We note that the commenter did not provide any references 
that were not already considered and included in the status review 
report and proposed rule. While we agree that the giant manta ray is a 
wide-ranging species, we pointed out in the proposed rule that habitat 
preference for the species varies by region. And while the species may 
show low habitat specificity, we noted that manta rays frequently rely 
on offshore reefs for important life history functions (e.g., feeding, 
cleaning).
    We disagree that manta rays do not have any predators. As noted in 
the proposed rule, manta rays are frequently observed with shark-
inflicted bites, and killer whales have been recorded preying on manta 
rays. We also note that the number of young does not provide an 
indication of predation rates on young. While the predation rate on 
young manta rays is unknown, the status review reports that after 
birth, young mantas need a period of minutes before they can swim 
properly, meaning they would be at risk of predation during this time. 
Additionally, because mantas do not provide any parental care to their 
offspring, the survival rate of the young may depend on the mother's 
choice of birth site. However, at this time, manta ray pupping and 
nursery grounds are unknown. Therefore, we are aware of no information 
to support the commenter's conclusion that there is very low predation 
on manta ray young.
    Finally, while we do not dispute that there are no known existing 
or historical commercial or sport fisheries for manta rays in U.S. 
waters, this does not mean that U.S. fisheries are not contributing to 
the mortality rates of giant manta rays. As stated in the status review 
and proposed rule, giant manta rays are sometimes caught as bycatch in 
the U.S. bottom longline and gillnet fisheries operating in the western 
Atlantic. Additionally, manta rays have been identified in U.S. bycatch 
data from fisheries operating primarily in the Central and Western 
Pacific Ocean, including the U.S. tuna purse seine fisheries, the 
Hawaii-based deep-set and shallow-set longline fisheries for tuna, and 
the American Samoa pelagic longline fisheries. However, given the low 
estimates of M. birostris bycatch in U.S. fisheries, we concluded that 
impacts from this mortality on the species are likely to be minimal.

Comments on Available Data, Trends, and Analysis

    Comment 2: One commenter stated the available information on 
abundance declines was insufficient to imply a rangewide decline. The 
commenter noted that many of the declines described in the status 
review were in highly populous areas or where targeted fishing for 
mobulids occurs, and that both the status review and proposed rule 
state that giant manta rays may be stable where they are not subject to 
fishing. Additionally, the commenter states that the documented 
declines are not based on systematic abundance surveys and rely heavily 
on anecdotal information.
    Response: We proposed to list the giant manta ray based on its 
status in a significant portion of its range (SPR). Our proposal is not 
based on our assessment of the status throughout the range. We agree 
that the available information on abundance trends is lacking 
throughout the species range, but within the relevant SPR, the best 
available data indicate that the species has suffered population 
declines of significant magnitude (up to 95 percent in some places). We 
note that these declines are largely based on trends in landings and 
market data, diver sightings, and anecdotal observations. While we 
would also like to have systematic abundance survey data, this type of 
data is not currently available, nor did the commenter provide any such 
data. Under the ESA, we are required to use the best available data to 
make our listing determinations, and we have determined that the best 
available data, along with the evidence of threats to the species 
(i.e., overutilization and inadequacy of existing regulatory 
mechanisms), indicate that the species is likely to become in danger of 
extinction within the foreseeable future throughout a significant 
portion of its range.
    Comment 3: One commenter suggested that the longline catch-per-
unit-effort (CPUE) data from the Western and Central Pacific Ocean 
(WCPO) should be viewed circumspectly, and that further analysis is 
warranted to discern the cause of the reduction in M. birostris catch 
as presented in Tremblay-Boyer and Brouwer (2016). Additionally, the 
commenter argues that the WCPO purse seine catch data (Tremblay-Boyer 
and Brouwer 2016) does not indicate a decline, and that the bycatch 
data for the Eastern Pacific Ocean (Hall and Roman 2013) are variable 
or do not exhibit a strong trend. As such, the commenter asserts that 
the available evidence suggests only localized depletion and does not 
support a threatened status for M. birostris throughout the Indo-
Pacific and Eastern Pacific (i.e., the relevant significant portion of 
its range).
    Response: In the status review and proposed rule, we noted that the 
available WCPO CPUE longline data presented in Tremblay-Boyer and 
Brouwer (2016), while short, indicates that the giant manta ray is 
observed less frequently in recent years compared to 2000-2005. Based 
on the distribution of longline effort from 2000-2015 in the Western 
and Central Pacific Fisheries Commission longline fisheries, effort has 
been concentrated around Indonesia and the Philippines (Williams and 
Terawasi 2016), where significant declines in the species have been 
observed. Additionally, Williams and Terawasi (2016) note that there 
has been a growth in the domestic fleets operating in the South Pacific 
over the past decade, with effort clearly increasing between 2004 and 
2015. Therefore, we think it is reasonable to assume that the noted 
declines in observations of the giant manta ray in the WCPO may be a 
result of fishery-related mortality and an associated decrease in the 
abundance of the species in the region. While the commenter suggested 
that the decline may be due to some aspect of the fishery that has made 
M. birostris less catchable, they did not provide, nor are we aware of 
any information that supports that assumption.
    In terms of the WCPO purse seine data (presented in Tremblay-Boyer 
and Brouwer (2016)), we noted in the status review that these data show 
strong reporting bias trends (as observer reporting in the purse seine 
fisheries to species-level became more prevalent after 2008), and, 
therefore, should not be used to assess abundance trends. The bycatch 
data for the Eastern Pacific Ocean (Hall and Roman 2013), mentioned by 
the commenter, is also discussed in the status review. While the 
current data do not exhibit a strong trend, overall, they do show a 
substantial increase in the catch and bycatch (defined as individuals 
retained for utilization and individuals discarded dead, respectively) 
of manta rays in purse seines in the Eastern Pacific Ocean since 2005. 
For example, prior to 2005, catch and bycatch remained below 20 t per 
year (data from 1998-2004), but by 2005, it was around 30 t and jumped 
to around 150 t in 2006 (Hall and Roman 2013). In 2008, catch

[[Page 2919]]

and bycatch had dropped to 40 t and, in 2009, decreased further to less 
than 10 t (Hall and Roman 2013). In 2015, catches of manta and mobula 
rays by Inter-American Tropical Tuna Commission (IATTC) large purse 
seine vessels with observers on board in the Eastern Pacific Ocean 
(EPO) was 71 t (IATTC 2016). As mentioned in the status review, the 
estimated average annual capture for giant manta rays by IATTC purse 
seine vessels operating in the EPO was 135 individuals (based on data 
from 1993-2015). We have also become aware of a recent preliminary 
productivity and susceptibly analysis (PSA) that was not included in 
the draft status review (Miller and Klimovich 2016). This preliminary 
PSA suggests that giant manta rays are one of the most vulnerable 
species to overfishing in the EPO purse-seine fisheries (Duffy and 
Griffiths 2017). Specifically, the PSA compared 32 species and 
calculated vulnerability scores as a combination of the species' 
productivity and susceptibility to the fishery (Duffy and Griffiths 
2017). In all three of the models run, giant manta rays were always one 
of the top five most vulnerable species to the EPO purse seine 
fisheries (Duffy and Griffiths 2017). Because effort in this fishery 
coincides with high productivity areas where giant manta rays are 
likely to aggregate, and have been observed caught in sets, we find 
that this continued fishing pressure in the EPO purse-seine fisheries 
is likely to lead to substantial declines in M. birostris throughout 
this portion of its range and potential extirpations within the 
foreseeable future, with evidence of significant declines already 
observed off Cocos Island, Costa Rica (a protected area for manta 
rays).
    Given the migratory nature of the species, as well as the 
significant fishing pressure and threats of overutilization and 
inadequacy of existing regulatory mechanisms to address those threats, 
further supported by available data indicating the vulnerability of the 
species to overfishing and declines in giant manta ray populations 
throughout this portion of its range, we disagree with the commenter 
and find that the available evidence indicates that M. birostris is 
likely to be in danger of extinction in the foreseeable future 
throughout the Indo-Pacific and Eastern Pacific portion of its range.
    Comment 4: One commenter provided manta/mobula ray CPUE data from 
the Hawaii deep-set and shallow-set longline fisheries and the American 
Samoa longline fishery based on unpublished NMFS observer data.
    Response: We have updated the final status review report with this 
information. The CPUE data further support our findings that catch of 
manta rays is low in these fisheries. Specifically, the observer data 
indicate that the CPUE (individuals per 1,000 hooks) has ranged between 
<0.001 and 0.003 in the Hawaii deep-set longline fishery since 2002, 
with approximately 20 percent observer coverage. In the Hawaii shallow-
set longline fishery, CPUE has ranged between 0 and 0.005 since 2004, 
with 100 percent observer coverage. In the American Samoa longline 
fishery, CPUE has ranged between <0.001 and 0.003 since 2007, with 
approximately 20 percent observer coverage. While we find that this new 
data supports our conclusion that impacts from these U.S. fisheries on 
the status of giant manta rays are likely minimal, we do not find that 
it changes our analysis or conclusions regarding the extinction risk of 
the giant manta ray throughout a significant portion of its range due 
to overutilization in non-U.S. fisheries.
    Comment 5: One commenter requested that the final rule expressly 
state that the Hawaii-based longline fisheries have only very rare 
interactions with manta rays, and negligible, discountable, and 
insignificant indirect effects on M. birostris. The commenter provides 
Hawaii-based and American Samoa longline bycatch data from 2011 to 2013 
to support this argument.
    Response: We have updated the final status review report with the 
provided bycatch data from 2011 and 2012. The status review already 
presented the bycatch information from 2013. It is not necessary to 
present detailed information in this rule about specific fisheries that 
do not appear to be significantly affecting the status of M. birostris, 
because this rule is focused on explaining the basis for our conclusion 
regarding the listing status of the species. Available details on 
particular fisheries and their associated impacts can be found in the 
final status review of the species (Miller and Klimovich 2017). As 
mentioned in our response to Comment 4, based on available U.S. bycatch 
data from fisheries operating primarily in the Central and Western 
Pacific Ocean, including the Hawaii-based deep-set longline fisheries, 
the status review concludes that impacts on the giant manta ray are 
likely to be minimal. The additional data further support this finding.
    Comment 6: One commenter provided personal observations from aerial 
surveys of manta rays off of St. Augustine, Florida. The commenter 
noted that the surveys were done from 2009-2012, and that they 
personally observed vast schools of mantas, with it not unusual to 
observe over 500 manta rays per 6-8 hour day of aerial survey. The 
commenter noted that unpublished results from aerial surveys also 
document significant numbers of manta rays from 2011-2013, and that 
additional aerial surveys are underway at this time.
    Response: We thank the commenter for this general information and 
have included it in the final status review (Miller and Klimovich 2017) 
as a personal communication from the commenter. However, without more 
specific information regarding these aerial surveys and the associated 
data (including survey methods and manta ray identification protocols, 
specific counts of individuals, composition of schools (i.e., males, 
females, juveniles, adults), seasonal and geographical information), we 
find that information is still severely lacking on population sizes, 
distribution, and trends in abundance of M. birostris within this 
portion of its range. As such, this general information does not change 
our conclusion from the proposed rule regarding the demographic risks 
to the species or the overall extinction risk of the species throughout 
its range and within the Indo-Pacific and eastern Pacific SPR.
    Comment 7: The Aquatic Resources Authority of Panama and the 
Ministry of the Environment of Panama submitted a comment supporting 
our proposal to list the giant manta ray as threatened. In terms of 
Panamanian data, they noted that landings are reported by general 
category and not by species, and, therefore, no information is 
available on the landing or occurrence of Manta species in the 
Panamanian fisheries. However, in general, rays appear to be a sporadic 
resource and possibly associated with net fishing, but this cannot be 
verified based on the available data.
    While the data on the species is lacking in Panamanian waters, the 
Panama Environment Ministry and the Aquatic Resources Authority of 
Panama noted that the available information indicates that the species 
should be protected and pointed to the IATTC resolution (C-15-04) that 
prohibits the retention, transshipment, storage, landing, and sale of 
all devil and manta rays taken in its large-scale fisheries.
    Response: We thank the Aquatic Resources Authority of Panama and 
the Ministry of the Environment of Panama for their comment in support 
of our conclusion that the species warrants

[[Page 2920]]

listing as a threatened species under the ESA.
    Comment 8: One commenter provided new information regarding the 
trophic level position of the giant manta ray and potential 
geographical differences in body sizes of the species. The commenter 
noted that the new information, which indicates that the diet of giant 
manta rays off Ecuador is predominantly of mesopelagic origin (as 
opposed to surface zooplankton) and that body size may vary by region 
due to prey availability or fishing pressure, should be taken into 
consideration during the development of critical habitat, recovery 
plans, and potential fishery regulations for giant manta rays.
    Response: We reviewed the new information regarding the trophic 
level position (Burgess et al. 2016) and potential body-size 
differences (McClain et al. 2015); however, we do not find that this 
new information changes any of our conclusions regarding the threats to 
the giant manta ray or the extinction risk analysis of the species. In 
the development of critical habitat, recovery plans, or any other 
regulations for the conservation of the giant manta ray, we will 
consider this along with all other available information.

Comments on Foreseeable Future

    Comment 9: One commenter stated that NMFS neglected to define the 
``foreseeable future'' and that without a temporal unit of measure to 
evaluate the species' future status, NMFS cannot rationally make 
conclusions about the future status.
    Response: We disagree with the commenter that we did not define the 
``foreseeable future'' as a temporal unit of measure. In fact, in the 
status review and proposed rule, we defined the ``foreseeable future'' 
as extending out several decades (>50 years). We note that because the 
giant manta ray is susceptible to a variety of threats for which 
different data are available, and which operate across different time 
scales, the foreseeable future is not reducible to a particular number 
of years, nor does the ESA require that we identify a specific year or 
period of time as the foreseeable future. We also noted in the status 
review that the appropriate time horizon for ``foreseeable future'' is 
not limited to the period that status can be quantitatively modeled or 
predicted within predetermined limits of statistical confidence. 
Because neither the ESA nor implementing regulations define 
``foreseeable future,'' the term is ambiguous, and Congress has left 
broad discretion to the Secretary to determine what period of time is 
reasonable for each species. See ``Memorandum Opinion: The Meaning of 
`Foreseeable Future' in Section 3(20) of the Endangered Species Act'' 
(M-37021, Department of the Interior Office of the Solicitor, January 
16, 2009). The appropriate timescales for analyzing various threats 
will vary with the data available about each threat. The foreseeable 
future considers factors such as the life history of the species 
(including generational length), habitat characteristics, availability 
of data, particular threats, ability to predict threats, and the 
ability to reliably forecast the effects of these threats and future 
events on the status of the species under consideration. In making our 
final listing determinations we must synthesize all available 
information and forecast the species' status into the future only as 
far as we reliably are able based on the best available scientific and 
commercial information and best professional judgment.
    As discussed in the status review and proposed rule, we considered 
the giant manta ray's life history traits, noting that it would likely 
take more than a few decades for management actions to be realized and 
reflected in population abundance indices, and the impact of present 
threats to the species. We found that the time frame extending out 
several decades (>50 years) would allow for reasonable predictions 
regarding the impact of current levels of fishery-related mortality on 
the biological status of the giant manta ray as well as impacts on 
giant manta ray habitat from climate change and the potential effects 
on the status of the species.

Comments on Significant Portion of Its Range Analysis

    Comment 10: One commenter stated that we inconsistently evaluated 
the threat of fisheries to the Atlantic portion of the giant manta ray 
population. The commenter notes that we concluded in the proposed rule 
that overutilization is unlikely to be a threat to M. birostris in the 
Atlantic Ocean; however, in the SPR analysis, we found that the impact 
of targeted catch and bycatch in the Atlantic Ocean would be a 
significant contributing factor to the extinction risk of the species 
without the members in the SPR. The commenter asserts that if we do not 
consider targeted catch and bycatch to be a threat to the species in 
the Atlantic Ocean, and if extirpation of giant manta rays in the Indo-
Pacific and eastern Pacific would not result in a shift in effort to 
the Atlantic Ocean, then it is unlikely that extirpation of the SPR 
would result in increased impacts from fisheries in the remaining 
portions of the species' range.
    Response: We disagree with the commenter that we inconsistently 
evaluated the threat of fisheries in the Atlantic portion of the giant 
manta ray's range and that, by extension, our conclusion regarding the 
identified SPR is not supported. Our determination that the Indo-
Pacific and eastern Pacific portion is biologically ``significant'' 
rests on the contributions the members in that portion make to the 
overall viability of the species. It does not depend on any assumptions 
or projections as to shifts in threats that would occur if the members 
in the portion were hypothetically lost, but rather to the reduction in 
the species' ability to withstand continuing threats (e.g., fishing) 
without those members.
    When we conducted the SPR analysis, we noted the absence of known 
areas exhibiting source-sink dynamics, which could affect the survival 
of the species, but that the largest subpopulations and records of 
individuals of the species come from the Indo-Pacific and eastern 
Pacific portion. In the Atlantic, the only available data on 
populations were records of over 70 individuals from the Flower Garden 
Banks Marine Sanctuary (Gulf of Mexico) and 60 manta rays from waters 
off Brazil. As mentioned previously, these observations, coupled with 
the low presence of the species in Atlantic fisheries data, led us to 
conclude that Atlantic M. birostris populations are likely small and 
sparsely distributed. New information submitted during the public 
comment period also provided numbers from off the east coast of Florida 
(>90 individuals); however, these data do not change our previous 
conclusion. If the species was hypothetically extirpated within the 
Indo-Pacific and eastern Pacific portion of the range, only the 
potentially small and fragmented Atlantic populations would remain. The 
demographic risks associated with small and fragmented populations 
discussed in the proposed rule, such as demographic stochasticity, 
depensation, and inability to adapt to environmental changes, would 
become significantly greater threats to the species as a whole, and 
coupled with the species' inherent vulnerability to depletion, indicate 
that even low levels of mortality would portend drastic declines in the 
population. Because of these risks, we concluded that without the 
animals in the Indo-Pacific and eastern Pacific, even minimal targeted 
fishing of the species by artisanal fishermen and bycatch mortality 
from the purse seine, trawl, and longline fisheries currently operating 
in the Atlantic would become significant contributing factors to the

[[Page 2921]]

extinction risk of the species, placing the species in danger of 
extinction within the foreseeable future throughout its range. We found 
that the Indo-Pacific and eastern Pacific portion of the giant manta 
ray's range qualifies as ``significant'' under the SPR Policy because 
this portion's contribution to the viability of M. birostris is so 
important that, without the members in this portion, the giant manta 
ray would be likely to become in danger of extinction within the 
foreseeable future, throughout all of its range.
    Comment 11: One commenter suggested that we should analyze whether 
there are more geographically-defined or regional populations of giant 
manta rays that could compose an SPR and analyze the status of those 
populations. The commenter asserts that there is no support to conclude 
that the entire Indo-Pacific and eastern Pacific portion of the giant 
manta range is an SPR and theorizes perhaps smaller portions could be 
SPRs that may be endangered instead of threatened.
    Response: The commenter is correct that there are theoretically 
infinite ways to divide a species' range into potential SPRs. However, 
the SPR Policy does not require exhaustively analyzing all potential 
configurations, but rather sets out a rule of reason--that the Services 
will evaluate an area as a potential SPR only where there is 
substantial information indicating both that a particular portion may 
be biologically ``significant'' and that the species may be either 
endangered or threatened in that portion. We must base our decision to 
focus on a particular portion on the best available scientific and 
commercial information. The commenter does not provide information to 
support analyzing any particular portions that are likely to meet the 
two tests of the SPR Policy. Nor do we have additional information to 
support the identification of alternate, smaller SPRs. The commenter 
cited a study (McClain et al. 2015) that found some geographic 
variability in disc width sizes among giant manta ray individuals that 
may be associated with fishing pressure or differences in food 
availability; however, the study cautions that these differences may be 
a result of ``uneven sampling across different regions or differences 
in methodologies.'' Additionally, the authors stated that the size 
distribution was not ``significantly different from normal'' when the 
data were combined for all the regions. Other than this paper, the 
commenter makes only general suppositions regarding the potential 
presence of smaller portions that they believe may be significant under 
the SPR Policy, and cites to the status review and proposed rule 
statements regarding declining subpopulations in the Indo-Pacific and 
eastern Pacific as support.
    During our analysis of the best available information, we found 
that threats were concentrated in the Indo-Pacific and eastern Pacific 
portion of the species' range, based on data from the smaller regional 
populations, and concluded that this portion meets the definition of an 
SPR under the SPR Policy. We note that the SPR Policy does not specify 
how portions are to be geographically identified or require exhaustive 
analyses to determine all possible geographic combinations of members 
or areas that may comprise an SPR. However, in our demographic and SPR 
analysis, we found no information to demonstrate that M. birostris is 
composed of source[hyphen]sink populations in any specific portion of 
its range, which could affect the survival of the species and may meet 
the specific standard of the SPR Policy to qualify it as biologically 
significant. Additionally, although we found data to suggest specific 
populations throughout the Indo-Pacific and eastern Pacific are in 
decline, there was no information to suggest that the loss of any one 
of these populations would place the species in danger of extinction, 
or render it likely to become so in the foreseeable future, throughout 
all of its range. The commenter did not provide any new information 
that suggests this would be the case. However, we did find that loss of 
all of the populations in the Indo-Pacific and eastern Pacific portion 
of the species' range would place the species in danger of extinction 
within the foreseeable future throughout all of its range. We state 
that the largest subpopulations and records of individuals of the 
species come from this portion and, without it, the species would have 
to rely only on its members in the potentially small and fragmented 
Atlantic populations for survival (see response to Comment 10 for 
further details). We therefore disagree with the commenter and find no 
rationale for conducting additional SPR analysis.
    Comment 12: One commenter contended that the proposed rule failed 
to provide the required analysis and information to satisfy the legal 
requirements of the ESA in the context of the SPR analysis. The 
commenter asserted that there are two underlying errors: (1) NMFS 
failed to conduct a ``detailed analysis'' to support its conclusion 
that the Indo-Pacific and eastern Pacific portion of the giant manta 
ray's range is significant under the SPR Policy; and (2) NMFS failed to 
engage in a ``separately'' and similarly ``detailed analysis'' to 
determine whether the giant manta ray is endangered or threatened in 
the portion of its range found to be significant.
    Response: In regards to the first claim, we disagree with the 
commenter that we failed to conduct a ``detailed analysis'' with 
respect to our determination that the Indo-Pacific and eastern Pacific 
portion of the giant manta ray's range is ``significant'' under the SPR 
Policy. As required by the SPR Policy, we examined whether the members 
of the species within the identified portion of the giant manta ray's 
range are so important to the viability of the species that, without 
them, the species would be in danger of extinction or likely to become 
so within the foreseeable future throughout all of its range. In 
conducting this analysis, we considered what the composition of the 
species would be if, hypothetically, members of the Indo-Pacific and 
eastern Pacific portion were extirpated (lost). We noted that the 
species would have to rely on only its members in the Atlantic for 
survival. As previously discussed in the proposed rule within the 
Demographic Risk Analysis section (82 FR 3708; January 12, 2017) and 
summarized in our response to Comment 10, the best available data 
suggest that the populations within the Atlantic are small and sparsely 
distributed, so the demographic risks of the species would increase to 
the point that the species would likely become endangered within the 
foreseeable future throughout its range. The demographic risk analysis, 
which examined abundance, spatial distribution, productivity, and 
diversity of giant manta rays, specifically discussed the risks 
associated with small and fragmented populations. We did not find it 
necessary to repeat this same information within the SPR analysis 
section but rather referred back to the previous, detailed discussion 
of demographic risks for small and sparsely distributed populations. 
While the commenter argues that this discussion falls short of the 
analytical standards set forth in the SPR Policy, specifically citing 
that the analysis must consider the contribution of the portion to the 
viability of the species using concepts of redundancy, resiliency and 
representation, we note that the SPR Policy also states that these 
concepts can be considered in terms of abundance, spatial distribution, 
productivity, and diversity of the species, as was done in this 
analysis. See 79 FR at 37581. Additionally, while the commenter 
suggests our discussion is conclusory and speculative, the commenter 
provides no additional data

[[Page 2922]]

for us to consider. As such, we reiterate that we used the best 
available information, as required by the ESA, to conduct our SPR 
analysis, we fully analyzed all of that information, and we provided a 
detailed explanation of our analysis to support our conclusions.
    With respect to the second claim, we disagree with the commenter 
that we failed to conduct a separate, detailed analysis of whether the 
giant manta ray is endangered or threatened in the portion of its range 
that we found to be ``significant.'' In conducting our extinction risk 
analysis, which considered all of the information from the detailed 
demographic risk analysis and threats assessment, we concluded that 
giant manta ray populations within the Indo-Pacific and eastern Pacific 
portion of its range (i.e., the SPR) are at a ``moderate risk of 
extinction,'' and we explained the basis for that conclusion in the 
proposed rule. We defined ``moderate risk of extinction'' within the 
status review (and cited to this definition within the proposed rule) 
as a species that ``. . . is on a trajectory that puts it at a high 
level of extinction risk in the foreseeable future.'' A ``high level of 
extinction risk'' was defined to mean that a species ``is at or near a 
level of abundance, productivity, spatial structure, and/or diversity 
that places its continued persistence in question . . . [or] faces 
clear and present threats (e.g., confinement to a small geographic 
area; imminent destruction, modification, or curtailment of its 
habitat; or disease epidemic) that are likely to create imminent and 
substantial demographic risks.'' In our overall determination, we found 
that a ``moderate risk of extinction'' equates to a threatened status, 
as the species is on a trajectory toward a status where its continued 
persistence is in question (where it is in danger of extinction) in the 
foreseeable future. To the extent there was any ambiguity in the 
analysis set forth in the proposed rule, we clarify here that the 
species is likely to become in danger of extinction within the 
foreseeable future within the Indo-Pacific and eastern Pacific portion, 
which correlates to ``threatened'' status. However, we cannot end our 
analysis there. The ESA also directs us to take into account 
conservation efforts after conducting a review of the status of the 
species and before making our determination. Therefore, we conducted 
the SPR analysis to evaluate the risk of extinction of the giant manta 
ray, but then proceeded to look at conservation efforts to determine 
whether the identified risk level is reduced as a result of such 
efforts before coming to our final determination. As we did not find 
that conservation efforts significantly altered the extinction risk for 
the giant manta ray to the point where it would not be in danger of 
extinction in the foreseeable future, we made our final determination 
that the giant manta ray is likely to become in danger of extinction 
within the foreseeable future throughout a significant portion of its 
range and therefore proposed to list it throughout its range as a 
threatened species.
    Comment 13: Two commenters argued that the giant manta ray is in 
danger of extinction in the identified SPR and, therefore, should be 
listed as an endangered species. One commenter states that NMFS did not 
fully take into account the migratory nature of the giant manta ray and 
its large range when it proposed to list the species as threatened. The 
commenter cites to the declines of over 80 percent in certain 
commercial fishing hotspots in the SPR where giant manta rays feed and 
aggregate during migrations through the region, and argues that the 
impairment of these portions increases the vulnerability of the species 
to threats, placing the entire species in danger of extinction. The 
other commenter argues that the observed declines of 80-95 percent in 
the SPR should be interpreted as the SPR being at a high risk of 
extinction. One commenter also states that our own conclusions in the 
proposed rule satisfied the SPR Policy threshold for ``likely to go 
extinct throughout a significant portion of its range.'' Finally, the 
same commenter states that if NMFS lists the species as threatened, it 
has circumvented the analysis of determining whether the species is in 
danger of extinction in any portion of its range, instead basing its 
conclusion on the worldwide decline of the species.
    Response: We disagree with both commenters. We also note that 
neither commenter provided any new information that was not already 
considered in the status review and proposed rule. As such, the 
commenters' claims are based on their own interpretation of the data 
and the SPR Policy. Below, we discuss our rationale for listing the 
giant manta ray as threatened within an SPR and explain key aspects of 
the SPR Policy.
    First, we disagree with the statement that we did not consider the 
migratory nature of the giant manta ray or its large range when 
evaluating the species' extinction risk. In fact, its global range and 
the lack of available information on the abundance, life history, and 
ecology of the species in the Atlantic portion of this range was the 
reason why the declines observed in the Indo-Pacific and eastern 
Pacific portion were found not to translate to overall declines in the 
species throughout its entire range. We also considered the migratory 
nature of the species when we examined threats to the species. For 
example, in our discussion of the adequacy of existing regulatory 
mechanisms, we noted that current national protections for the species 
may not be adequate to protect it from overutilization, primarily 
because the species is pelagic and migratory and not confined to these 
protected areas. Additionally, when evaluating the overall risk of 
extinction of the species, we noted that although larger, and seemingly 
stable populations of the species still exist (including within areas 
of the Indo-Pacific and eastern Pacific), its migratory behavior means 
the species will continue to face fishing pressure throughout this 
portion through the foreseeable future. However, we disagree that 
declines of 80-95 percent in local populations within the SPR establish 
that the species is at a high risk of extinction. As stated in the 
proposed rule, despite these declines, larger subpopulations of the 
species still exist within the SPR. In fact, the only two available 
subpopulation estimates of M. birostris (from Mozambique and Ecuador) 
suggest that these populations are not so critically small in size that 
they are likely to experience extreme fluctuations that could lead to 
depensation or otherwise put the populations in danger of extinction at 
this time. In addition, we note that elsewhere in the SPR, current and 
accurate abundance estimates are unavailable for the giant manta ray, 
as the species tends to be only sporadically observed. In terms of 
other demographic risks, we note that the available information does 
not indicate any changes in the reproductive traits of the species or 
the natural rates of dispersal among populations (particularly within 
the SPR), or any evidence that the species is presently strongly 
influenced by stochastic or depensatory processes within the SPR. As 
such, the best available information does not indicate that the species 
is presently in danger of extinction within the SPR. However, due to 
continued fishing pressure within the SPR and the inadequacy of 
existing regulatory measures to control this fishing pressure, we 
concluded that overutilization is a threat to the remaining M. 
birostris populations that places the species within the SPR on a 
trajectory to be in danger of extinction in the foreseeable future.

[[Page 2923]]

    Second, one of the commenters equates a statement in the proposed 
rule that extirpations of those populations that have experienced 
substantial declines and are still subject to fishing, particularly in 
the Indo-Pacific and eastern Pacific portions of the species' range, 
would inherently increase the overall risk of extinction for the entire 
species (see 82 FR 3694; January 12, 2017) to indicating that the 
species is ``likely to go extinct'' throughout an SPR. The commenter 
further goes on to incorrectly interpret our statement to mean that the 
Indo-Pacific and eastern Pacific portions are increasing the 
vulnerability of the species to threats to the point where the entire 
species is in danger of extinction. The statement in the proposed rule 
referenced by the commenter was made in our analysis of the demographic 
risk that current abundance and trends in abundance pose to the 
species. To clarify, the statement in the proposed rule that the 
hypothetical loss of the animals in the SPR would cause an ``inherent 
increase'' in the overall risk of extinction for the species does not 
mean that the species is actually now at the level where it is 
considered to be in danger of extinction. Rather, it means that the 
species would be at a higher risk of extinction if, hypothetically, the 
members in the portion were no longer in existence and providing 
contributions to the species than the species is currently. In fact, as 
already discussed, we concluded the species would likely become 
endangered within the foreseeable future without that portion.
    Third, one of the commenters presents an argument that the entire 
species is in danger of extinction due to the impairment of the species 
within the SPR, and that we should therefore conclude that the giant 
manta ray is in danger of extinction throughout the SPR. Specifically, 
the commenter states that the species has experienced declines in 
certain fishing hotspots or aggregation areas and that ``[t]he 
impairment of these portions of the species' range increases the 
vulnerability of the species to the threats it faces to the point that 
the entire species is in danger of extinction.'' The commenter thus 
asserts that we should have concluded that the giant manta ray is 
endangered in an SPR, and that we inappropriately reached a threatened 
status conclusion simply because the species is not endangered in every 
part of its range. The commenter further states that if we list the 
species as threatened, it indicates that we only looked at the 
worldwide decline and did not consider whether the species is 
endangered in some portions of its range. Contrary to this assertion, 
we did consider whether the species was endangered or threatened in any 
significant portion of its range. As outlined previously, after 
evaluating the species' extinction risk throughout its range 
(worldwide), we reached a conclusion that the species was not 
threatened or endangered range wide. Thus, we next conducted an SPR 
analysis. As stated in the proposed rule, and in the SPR Policy (79 FR 
37577; July 1, 2014), in order to identify only those portions that 
warrant further consideration under the SPR Policy, we must determine 
whether there is substantial information indicating both that (1) a 
particular portion of the range may be ``significant'' and (2) the 
species may be in danger of extinction in that portion or likely to 
become so within the foreseeable future. The policy further explains 
that, depending on the particular facts of the situation, it may be 
more efficient to address the question of whether any identified 
portions are ``significant'' first, but in other cases it will make 
more sense to examine the status of the species in the identified 
portions first. In the case of the giant manta ray, we first examined 
whether there were any portions of the range where the species is in 
danger of extinction (endangered) or likely to become so in the 
foreseeable future (threatened) and, finding that there were, we then 
evaluated whether those portions were ``significant'' under the SPR 
Policy. We concluded that the species is threatened in the Indo-Pacific 
and eastern Pacific portion of its range, and that this portion is 
``significant'' under the SPR Policy. As previously explained, the best 
available information does not indicate that the species is presently 
in danger of extinction within the SPR; and therefore, we disagree with 
the commenter that the species should be listed as endangered.
    Lastly, the commenter makes assertions about the status of the 
species that are not supported in the record. Specifically, the 
commenter states: ``Under any reasonable reading of the ESA, the rapid 
decline of individuals in these areas and their likelihood of 
extinction in the foreseeable future would indicate that the species 
should be listed as endangered.'' (Emphasis added.) The commenter's 
assertions that the species is likely to become extinct within the 
foreseeable future is not supported in the record. We found that the 
best available scientific and commercial information indicates that the 
species is likely to become ``endangered'' (in danger of extinction) 
``within the foreseeable future'' within the SPR. 16 U.S.C. 1532(20). 
Thus, the species meets the definition of ``threatened'' within the 
SPR. We have not stated, and could not on the present record conclude, 
that the species is ``likely to become extinct within the foreseeable 
future''--a much more grave prediction--either within the SPR or 
throughout its range. (Note that a finding that the portion is 
``significant,'' while based on an assumed hypothetical loss of the 
members in the portion for the sake of analysis, is not actually a 
prediction of such loss.) Because we have found that the species is 
threatened in the SPR, per the SPR Policy, we are listing the species 
as threatened throughout its range.
    To summarize from the proposed rule, after examining and 
considering all of the available information on the species, including 
life history and abundance data as well as current and future threats 
to the species, we concluded that the species was not in danger of 
extinction or likely to become so within the foreseeable future 
throughout its range. However, applying the SPR Policy, we determined 
that the Indo-Pacific and eastern Pacific portion of the species' range 
qualified as an SPR. In evaluating the extinction risk of the species 
within this portion, we took into consideration the demographic risks 
of the species, the information on observed declines of the species in 
certain fishing areas, and the factors under section 4(a)(1). However, 
we also noted that there is considerable uncertainty regarding the 
current abundance of M. birostris throughout this portion, with 
evidence that large subpopulations of the species still exist, such as 
off Mozambique and Ecuador. The proposed rule also mentioned that 
numbers of giant manta rays identified through citizen science in 
Thailand's waters have been increasing over the past few years, and 
actually surpass the estimate of identified giant mantas in Mozambique, 
possibly indicating that Thailand may be home to the largest 
aggregation of giant manta rays within the Indian Ocean. Because 
neither commenter provided any new information to consider regarding 
abundance, population declines, or threats in this SPR, our conclusion 
that the species is likely to become in danger of extinction within the 
foreseeable future, and thus is threatened, within the SPR remains the 
same, and, per the SPR Policy, we are listing it is as threatened 
throughout its range under the ESA.
    Comment 14: One commenter states that the intention to list the 
giant manta

[[Page 2924]]

ray as threatened is unwarranted due to an almost complete lack of 
scientific evidence. The commenter notes that there is no conclusive 
threat in North American waters, and that the threatened conclusion is 
based on one article in the literature. The commenter further goes on 
to state that there are no fisheries for manta rays in North American 
waters or evidence of the species being overfished in U.S. waters, and 
notes that manta rays are protected from direct fishing pressure in 
Mexico, Brazil, and Florida and are listed on Appendix II of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES).
    Response: We disagree with the commenter that the listing of the 
giant manta ray as threatened is unwarranted. We also disagree that our 
conclusion was based on one article in the literature. As noted in the 
proposed rule, we considered the best available scientific and 
commercial information including the petition, public comments 
submitted on the 90-day finding (81 FR 8874; February 23, 2016), the 
draft status review report (Miller and Klimovich 2016), and other 
published and unpublished information, and have consulted with species 
experts and individuals familiar with manta rays to come to our 
determination. Based on the available data, we concluded that the giant 
manta ray is not in danger of extinction or likely to become so 
throughout its entire range, but is threatened within an SPR. As 
thoroughly discussed in the proposed rule and status review, the giant 
manta ray faces concentrated threats within the SPR, with estimated 
take of the species frequently greater than the observed individuals in 
the area and evidence of declines in sightings and landings of the 
species of up to 95 percent in some places. Efforts to address 
overutilization of the species through regulatory measures are 
inadequate within the SPR, with targeted fishing of the species despite 
prohibitions and bycatch measures. Based on the demographic risks and 
threats to the species within the SPR, we determined that the species 
is likely to become in danger of extinction within the foreseeable 
future throughout the SPR.
    We do not posit that that there are fisheries for manta rays in 
North American waters, or that the species is being overfished in U.S. 
waters. As the final status review (Miller and Klimovich 2017) and 
proposed rule state, manta rays are observed as bycatch in the purse 
seine, trawl, and longline fisheries operating in the Atlantic Ocean. 
In our analysis of the species' status throughout its entire range, we 
conclude that it is unlikely that overutilization as a result of 
bycatch mortality is a significant threat to the species in the 
Atlantic Ocean; however, we caveat this statement with the fact that 
information is severely lacking on population sizes and distribution of 
M. birostris in the Atlantic as well as current catch and fishing 
effort on the species throughout this portion of its range. However, as 
noted in our response to Comment 10, in conducting the SPR analysis, we 
found that even minimal targeted fishing of the species by artisanal 
fishermen and bycatch mortality from the purse seine, trawl, and 
longline fisheries operating in the Atlantic would become significant 
contributing factors to the extinction risk of the species if the 
species was extirpated within the SPR, which would place the species in 
danger of extinction within the foreseeable future throughout its 
range.

Comments on Similarity of Appearance Listing

    Comment 15: Two commenters stated that when NMFS finalizes its 
decision on the giant manta ray, it should also ``list'' the reef manta 
ray under the similarity of appearance provision in the ESA. One of the 
commenters notes that both species are morphologically similar and that 
products from the giant and reef manta rays are practically impossible 
to distinguish in the international trade market (citing Wu 2016).
    The other commenter notes the exponential demand for manta ray gill 
plates in the trade and argues that the gill plates in all nine species 
of manta rays look ``almost identical.'' The commenter further states 
that once a manta ray gill plate has been removed and dried, it is 
``almost impossible'' to identify it to species. The commenter asserts 
that release of the ``Field Identification Guide of the Prebranchial 
Appendages (Gill Plates) of Mobulid Rays for Law Enforcement and Trade 
Monitoring Applications'' by the Manta Trust non-profit (Manta Trust 
2011) was evidence of ``how difficult it is for law enforcement to 
distinguish between each species gill plates'' and that this is an 
``extremely difficult task.'' The commenter further goes on to state 
that law enforcement will also be unable to use capture locations or 
depths to help determine the species of manta ray because they inhabit 
an overlapping range of habitat. The commenter contends that the 
difficulty in distinguishing between the reef and giant manta ray gill 
plates is an additional threat to the giant manta ray because fishermen 
will be able to continue to target the giant manta ray and pass off the 
gill plates as reef manta rays. Additionally, the commenter contends 
that listing the reef manta ray will ``substantially facilitate the 
enforcement and further the policy'' of the ESA because it will allow 
the giant manta ray population to increase and deter fishermen from 
catching them due to the higher likelihood that they will be caught by 
law enforcement. The commenter concludes that the reef manta ray must 
also be protected under the ESA to avoid misidentification of the manta 
ray gill plates and to discourage fishermen from disregarding the 
species of manta ray that they catch.
    Response: Section 4 of the ESA (16 U.S.C. 1533(e)) provides that 
the Secretary may, by regulation of commerce or taking, and to the 
extent he deems advisable, treat any species as an endangered or 
threatened species even though it is not listed pursuant to Section 4 
of the ESA when the following three conditions are satisfied: (1) Such 
species so closely resembles in appearance, at the point in question, a 
species which has been listed pursuant to Section 4 of the ESA that 
enforcement personnel would have substantial difficulty differentiating 
between the listed and unlisted species; (2) the effect of this 
substantial difficulty is an additional threat to an endangered or 
threatened species; and (3) such treatment of an unlisted species will 
substantially facilitate the enforcement and further the policy of the 
ESA (16 U.S.C. 1533(e)(A)-(C)).
    In terms of the similarity of appearance of the gill plates 
assertion by the commenter, we first note that there are not nine 
species of manta rays, as stated by one of the commenters, but nine 
species of mobula rays. Manta rays are currently split into two 
species. We assume that the commenter was also referring to mobula rays 
in their statement that ``all nine species of manta rays look almost 
identical.'' Furthermore, the Manta Trust field identification guide 
cited by the commenter (Manta Trust 2011) explicitly states that 
``[g]ill plates from the two species of manta rays can be visually 
identified from the other species.'' The guide explains that if the 
gill plate size is larger than 30 cm, is uniform brown or black in 
color, and has smooth filament edgings, then it belongs to a manta 
species (Manta Trust 2011). The guide concludes that ``Manta ray gill 
plates can easily be distinguished from the traded mobula ray species' 
gill plates using this simple visual ID Guide. The size, colour 
patterning, and filament edging of the

[[Page 2925]]

gill plates can be used as an effective and easy indicator to determine 
the species of orgin [sic]'' (Manta Trust 2011). Based on this new 
information, we do not find that enforcement officials will have 
difficulty identifying manta ray gill plates from other mobula ray gill 
plates.
    In terms of identifying manta ray gill plates to species level, the 
information provided by the commenters did not discuss this issue, nor 
do we have information available in our files that would allow us to 
conclude that enforcement personnel would have substantial difficulty 
in attempting to differentiate between the two manta ray species. 
Additionally, even if these products from the two species closely 
resemble each other in appearance, we do not find that this resemblance 
poses an additional threat to the giant manta ray, nor do we find that 
treating the reef manta ray as an endangered or threatened species will 
substantially facilitate the enforcement of current ESA prohibitions or 
further the policy of the ESA, for the reasons explained below.
    As described in the proposed rule, the significant operative 
threats to the giant manta ray are overutilization by foreign 
commercial and artisanal fisheries in an SPR (i.e., the Indo-Pacific 
and Eastern Pacific) and inadequate regulatory mechanisms in foreign 
nations to protect these manta rays from the heavy fishing pressure and 
related mortality in these waters outside of U.S. jurisdiction. In 
fact, the take and trade of the species by persons under U.S. 
jurisdiction were not identified as significant threats to the giant 
manta ray. As such, we do not find that treating the reef manta ray as 
a threatened species would substantially further the conservation of 
the giant manta ray under the ESA.
    Regarding the potential take of giant manta rays by U.S. fishermen, 
which is primarily in the form of bycatch in U.S. fisheries, we do not 
find that the reef manta ray so closely resembles the giant manta ray 
in appearance such that enforcement personnel would not be able to 
differentiate between these two species when caught or landed. In fact, 
as noted in the status review, many physical characteristics, including 
coloration, dentition, denticles, spine morphology, and size, can be 
used to distinguish between the giant manta ray and the reef manta ray. 
For example, the chevron color variant of M. birostris can be 
distinguished from the chevron M. alfredi color type by its dark (black 
to charcoal grey) mouth coloration, medium to large black spots that 
occur below its fifth gill slits, and a grey V-shaped colored margin 
along the posterior edges of its pectoral fins (Marshall et al. 2009). 
In contrast, the chevron M. alfredi has a white to light grey mouth, 
dark spots that are typically located in the middle of the abdomen, in 
between the five gill slits, and dark colored bands on the posterior 
edges of the pectoral fins that only stretch mid-way down to the fin 
tip (Marshall et al. 2009). Additionally, only M. birostris has a 
caudal thorn and prominent dermal denticles that gives their skin a 
much rougher appearance than that of M. alfredi (Marshall et al. 2009). 
Based on these distinguishing characteristics, we do not find that 
enforcement personnel would have substantial difficulty in attempting 
to differentiate between the giant and reef manta ray species in the 
bycatch of U.S. fisheries. Furthermore, we note that the reef manta ray 
does not occur in the Atlantic Ocean, so any manta rays caught by U.S. 
fisheries in this portion of the giant manta ray range would easily be 
identified as M. birostris.
    Regarding trade, the main threat to the giant manta ray is the 
international mobulid gill plate trade. As stated in the status review 
and proposed rule, since the 1990s, the gill plate market has 
significantly expanded, which has increased the demand for manta ray 
products, particularly in China. These gill plates are used in Asian 
medicine and are thought to have healing properties. However, as noted 
in the final status review (Miller and Klimovich 2017) and proposed 
rule, Indonesia, Sri Lanka, and India presently represent the largest 
manta ray exporting range state countries, with Chinese gill plate 
vendors also reporting mobulid gill plates from other regions as well, 
including Malaysia, China, Taiwan, Vietnam, South Africa, Thailand, 
Australia, Philippines, Mexico, South America (e.g., Brazil), the 
Middle East, and the South China Sea (CMS 2014; Hau et al. 2016; 
O'Malley et al. 2017). We found no information to indicate that the 
United States has a significant, or even any, presence in the 
international mobulid gill plate trade.
    Additionally, and as explained in the Protective Regulations Under 
Section 4(d) of the ESA section below, because we find that the United 
States is not a significant contributor to the threats facing the giant 
manta ray, we have determined that protective regulations pursuant to 
section 4(d) are not currently necessary and advisable for the 
conservation of the species. Therefore, even if there may be some 
degree of difficulty in differentiating reef manta rays and giant manta 
rays, or their gill plates, we do not find that U.S. enforcement 
personnel will be faced with this task to the extent that necessitates 
treating the reef manta ray as a listed species to further the 
conservation of the giant manta ray under the ESA. Ultimately, given 
the threats to the species as discussed in the final status review 
(Miller and Klimovich 2017) and proposed rule, any conservation actions 
for giant manta ray that would bring it to the point that the measures 
of the ESA are no longer necessary will need to be implemented by 
foreign nations.
    For the reasons above, we do not find it advisable to further 
regulate the commerce or taking of the reef manta ray by treating it as 
a threatened species based on similarity of appearance to the giant 
manta ray.

Comments on Establishing Protective Regulations Under Section 4(d) of 
the ESA

    Comment 16: Two commenters requested that we consider not issuing 
protective regulations pursuant to section 4(d) of the ESA as U.S. 
fisheries are not contributing significantly to the primary threat of 
overutilization of the giant manta ray. One of the commenters noted 
that there are no directed fisheries for giant manta rays in the U.S. 
Western Pacific Region, and incidental catches are rare. Additionally, 
the commenter pointed out that we considered the impact on the giant 
manta ray from the Hawaii-based longline and American Samoa longline 
fisheries to be minimal. Similarly, the other commenter asserted that 
the Hawaii-based commercial longline fisheries pose no risk to the 
giant manta ray and, therefore, application of the take prohibition to 
these fisheries is not necessary or advisable for the conservation of 
the species. Another commenter urged NMFS to consider exempting a very 
small number of giant manta rays for collection for public aquarium 
display.
    In contrast, one commenter urged NMFS to promulgate a section 4(d) 
rule to make it unlawful to take a giant manta ray, especially for its 
gill plate. Additionally, the commenter stated that the rule should 
prohibit the trade or sale of manta ray gill plates in the United 
States and also include habitat protection to ensure ecosystems that 
giant manta rays depend on remain intact. Similarly, another commenter 
formally petitioned NMFS under the Administrative Procedure Act (APA), 
5 U.S.C. 553(e), to extend the ESA section 9(a) prohibitions to giant 
manta rays.
    Response: Under the ESA, if a species is listed as endangered, the 
ESA section 9 prohibitions automatically apply and any ``take'' of, or 
trade in, the species is illegal, subject to certain exceptions. In

[[Page 2926]]

the case of a species listed as threatened, section 4(d) of the ESA 
gives the Secretary discretion to implement protective measures the 
Secretary deems necessary and advisable for the conservation of 
species. Therefore, for any species listed as threatened, we can impose 
any or all of the section 9 prohibitions if we determine such measures 
are necessary and advisable for the conservation of the species.
    However, after a review of the threats and needs of the giant manta 
ray, we have determined that protective regulations pursuant to section 
4(d) are not currently necessary and advisable for the conservation of 
the species. The basis for this determination is provided in detail in 
the Protective Regulations Under Section 4(d) of the ESA section below; 
please see that section for more information.

Comments on Designating of Critical Habitat

    Comment 17: Two commenters stated that NMFS should designate 
critical habitat in U.S. waters concurrently with the final listing. 
One commenter states that these areas should include aggregation sites 
along the west coast of the United States and the Pacific Trust 
Territories (the Marianas, the Carolines, and the Marshalls Island 
groups), the east coast of the United States, the coasts of Hawaii, and 
anywhere else the species lives in U.S. waters. The commenter notes 
that there are at least two known aggregation sites that should be 
designated with the final listing: The area within and surrounding the 
Flower Garden Banks National Marine Sanctuary, and a site off the coast 
of St. Augustine, Florida. Similarly, the other commenter also mentions 
that giant manta rays often use the Flower Gardens Banks National 
Marine Sanctuary and may also aggregate off the east coast of South 
Florida.
    Response: 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, if 
critical habitat of such species is not then determinable, the 
Secretary may extend the time period for designation by one additional 
year (16 U.S.C. 1533(b)(6)(C)(ii); 50 CFR 424.17(b)).
    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) 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.
    In the proposed rule to list the giant manta ray (82 FR 3694; 
January 12, 2017), we requested information describing the quality and 
extent of habitats for the giant manta ray, as well as information on 
areas that may qualify as critical habitat for the species in U.S. 
waters. We stated that specific areas that include the physical and 
biological features essential to the conservation of the species, where 
such features may require special management considerations or 
protection, should be identified. While the commenters provided the 
general locations of known giant manta ray aggregation areas within the 
U.S. Gulf of Mexico, and a potential aggregation area off the U.S. east 
coast, the commenters did not provide, nor do we have, any information 
on the physical or biological features of these sites that might make 
these aggregation areas essential to the conservation of the species. 
Additionally, the commenters provided no information on specific areas 
that may meet the definition of critical habitat within the other 
locations that they listed. We also note that critical habitat shall 
not be designated in foreign countries or other areas outside U.S. 
jurisdiction (50 CFR 424.12(g)); and, therefore, we cannot designate 
critical habitat in the waters of the commenter's requested Pacific 
Trust Territories, specifically the Republic of the Marshall Islands, 
Federated States of Micronesia, or the Republic of Palau.
    We received no other information regarding critical habitat from 
public comments. After reviewing the comments provided and the best 
available scientific information, we conclude that critical habitat is 
not determinable at this time because data sufficient to perform the 
required analyses are lacking. Specifically, we find that sufficient 
information is not currently available to: (1) Identify the physical 
and biological features essential to conservation of the species at an 
appropriate level of specificity, particularly given the uncertainty 
surrounding the species' life history characteristics (e.g., pupping 
and nursery grounds remain unknown) and migratory movements, (2) 
determine the specific geographical areas that contain the physical and 
biological features essential to conservation of the species, 
particularly given the global range of the species, and (3) assess the 
impacts of the designation. (See also the Critical Habitat section for 
additional information.) However, public input on features and areas in 
U.S. waters that may meet the definition of critical habitat for the 
giant manta ray is invited. Additional details about specific types of 
information sought are provided in the Information Solicited section 
later in this document. Input may be sent to the Office of Protected 
Resources in Silver Spring, Maryland (see ADDRESSES). Information 
received will be considered in evaluating potential critical habitat 
for this species.

Comments on Development of a Recovery Plan

    Comment 18: One commenter noted that NMFS should develop a 
comprehensive recovery plan following the ESA listing of the giant 
manta ray.
    Response: Once a species is listed as threatened or endangered, 
section 4(f) of the ESA generally requires that we develop and 
implement recovery plans that must, to the maximum extent practicable, 
identify objective, measurable criteria which, when met, would result 
in a determination that the species may be removed from the list. 
Development of a recovery plan will be considered through a separate 
effort subsequent to this rulemaking.

Comments on the ``Not Warranted'' Final Determination for the Reef 
Manta Ray

    The Federal Register document announcing the 12-month finding on 
the petition to list giant and reef manta rays under the ESA (82 FR 
3694; January 12, 2017) solicited public comments only on the proposal 
to list the giant manta ray as a threatened species. However, we also 
received a few comments from one commenter concerning the final 12-
month ``not warranted'' determination for the reef manta ray. Although 
that determination is a final agency action and thus not subject to 
public comment or an obligation to respond to such comment, we 
nevertheless reviewed the comments on the 12-month ``not warranted'' 
determination and take this opportunity to provide responses for 
additional clarity below.
    Comment 19: The commenter stated that the SPR analysis was 
inadequate, and that NMFS did not identify any portion of the range as 
biologically significant to determine whether the reef manta ray may be 
in danger of extinction in that portion now or in the foreseeable 
future. Thus, the commenter asserts that NMFS relied on an inadequate 
SPR analysis to conclude that the risk of extinction is low throughout 
the species' entire range.

[[Page 2927]]

    Response: We disagree with the commenter regarding the adequacy of 
the SPR analysis. As discussed above, the SPR Policy explains that, 
after identifying any portions that warrant further consideration, 
depending on the particular facts of the situation, NMFS may find it is 
more efficient to address the question of whether any identified 
portions are ``significant'' first, but in other cases it will make 
more sense to examine the status of the species in the identified 
portions first. In the case of the reef manta ray, we chose to look at 
the second issue first; that is, we first considered whether the 
species is in danger of extinction, or likely to become so in the 
foreseeable future, in any particular portion of its range. We found 
that in waters off Mozambique and the Philippines, M. alfredi has 
suffered declines from targeted fishing, with this overutilization 
likely causing the members in this portion to experience a higher risk 
of extinction relative to the species overall. Additionally, we 
identified waters off Indonesia, Papua New Guinea, and Kiribati as 
portions of the species range where the species is likely at higher 
risk of extinction relative to the species overall, due to concentrated 
threats. Having concluded the species is likely at higher risk than the 
overall species in these portions (but without reaching the point of 
definitively concluding that the species is threatened or endangered 
there for the time being), we moved on to the second part of the SPR 
analysis, which requires us to determine whether any of these portions 
meet the SPR Policy's test of ``significant.'' Again, as stated in the 
proposed rule, we found that the hypothetical loss of the members of 
the species within any or all of these portions would not put the 
entire species in danger of extinction throughout all of its range now 
or in the foreseeable future. This is because the remaining 
populations, which include some of the largest identified M. alfredi 
populations, benefit from national protections that prevent 
overutilization of the species and are not showing evidence of decline. 
Because we did not have any evidence to establish that the loss of 
animals in any or all of the at-risk portions would place the entire 
species in danger of extinction now or in the foreseeable future, there 
was no basis to conclude any of the potentially at-risk portions were 
``significant.'' Because the ``significance'' prong of the analysis was 
not met, it was unnecessary to continue to evaluate whether the species 
may be threatened or endangered in those portions. We also note that 
the commenter did not provide any new information regarding these 
portions or their significance under the SPR Policy. As such, we find 
that our SPR analysis was adequate.
    Comment 20: The commenter stated that we did not analyze any 
potential DPSs for reef manta rays and suggests that the reef manta ray 
population in the Indo-Pacific may comprise a potential SPR and DPS.
    Response: The commenter did not provide any species-specific 
information to indicate that potential DPSs of reef manta rays exist, 
nor do we have any such information. We are not required to consider 
listing DPSs of a species unless we are petitioned to evaluate a 
specific population or populations for listing as a DPS(s), and the 
petitioner has provided substantial information that the population(s) 
may be warranted for listing as DPS(s). Furthermore, as stated in the 
DPS Policy, Congress instructed the Services that listing of DPSs is to 
be done sparingly and only when the biological evidence supports such a 
listing (61 FR 4722; February 7, 1996). In the status review, we state 
that additional studies (including genetic sampling) are needed to 
better understand the population structure of the species throughout 
its range (particularly given the uncertainties in the species' range, 
habitat use, and life history characteristics), indicating a lack of 
available data that may provide insight into the ``discreteness'' or 
``significance'' of populations under the DPS Policy.
    We also note that the commenter did not provide any species-
specific information to support the suggestion that the reef manta ray 
population in the Indo-Pacific may comprise a potential SPR and DPS. 
Under the SPR Policy, if a species is found to be endangered or 
threatened throughout a significant portion of its range, and the 
population(s) in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies. 
However, because we did not identify any SPRs for reef manta rays, 
there was no basis for evaluating whether any SPRs were DPSs.
    Comment 21: The commenter asserted that if we list the giant manta 
ray under the ESA, then we must also propose to ``list'' the reef manta 
ray pursuant to the ESA's similarity of appearance provision. The 
commenter stated that they are petitioning NMFS to reconsider listing 
the reef manta ray under the ESA under the APA, 5 U.S.C. 553(e).
    Response: The similarity of appearance provision of the ESA allows 
the Secretary to treat non-listed species as if they were listed 
species, if certain conditions are met and to the extent the Secretary 
determines it is advisable to do so. We disagree with the commenter's 
request to apply this provision to the reef manta ray and address this 
issue more fully in our response to Comment 15. With regard to 
reconsidering the listing of the reef manta ray under the APA, we do 
not find the requested action to be warranted at this time. In making 
our 12-month finding that the reef manta ray does not warrant listing, 
we considered the best available information on the species' biology, 
ecology, life history, threats, and demographic risks to determine the 
species' overall risk of extinction. The commenter did not provide any 
new information to consider in support of their request, and, as such, 
our conclusion remains the same. We would also like to note that 
petitions for listing species under the ESA (including 
reconsiderations) must follow the implementing regulations issued 
jointly by the Services at 50 CFR 424.14.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information that would cause us to change our 
proposed listing determination. We did, however, make several revisions 
to the final status review report (Miller and Klimovich 2017) to 
incorporate, as appropriate, relevant information received in response 
to our request for public comments and information we collected after 
publication of the proposed rule.
    Specifically, we updated the status review to include new 
information regarding: The seasonal occurrence of manta rays off the 
northern Yucatan peninsula (Hacohen-Domen[eacute] et al. 2017), the 
diet and trophic levels of the two manta ray species (Couturier et al. 
2013; Burgess et al. 2016; Rohner et al. 2017a; Stewart et al. 2017), 
life history parameters for M. birostris (Nair et al. 2015; Rohner et 
al. 2017a), personal observations (F. Young, pers. comm. 2017) and 
estimates of manta rays off the east coast of Florida (Kendall 2010), 
time-series analysis of manta ray sightings off Mozambique (Rohner et 
al. 2017b), gill plate market prices and trends (Hau et al. 2016; 
O'Malley et al. 2017), landings of mobula rays in India (Nair et al. 
2015; Zacharia et al. 2017), landings of manta rays off New Zealand 
(Jones and Francis 2017), landings of manta rays off Peru (Alfaro-
Cordova et al. 2017), bycatch (NMFS 2016) and CPUE (Western Pacific 
Regional Fisheries Management Council pers. comm. 2017, citing NMFS 
Pacific Islands Observer Program unpublished

[[Page 2928]]

data) of manta rays in U.S. fisheries, longline effort in the Pacific 
(Williams and Terawasi 2016), manta ray catch and bycatch data in the 
eastern Pacific (Hall and Roman 2013; IATTC 2016), and PSA results for 
giant manta rays in the eastern Pacific Ocean (Duffy and Griffiths 
2017). As noted above, with more detailed discussion in many of the 
previous comment responses, consideration of this new information did 
not alter any conclusions (and in some cases further supported our 
conclusions) regarding the threat assessment or extinction risk 
analysis for either manta ray species. Thus, the conclusions contained 
in the status review and determinations based on those conclusions in 
the proposed rule are reaffirmed in this final action.

Species Determination

    We are aware that a recent taxonomic study has suggested that Manta 
birostris and Manta alfredi may actually be closely related to the 
Chilean devil ray (Mobula tarapacana), with genetic analyses that 
demonstrate support for nesting these species under the genus Mobula 
rather than Manta (White et al. 2017). However, we note that the study 
still recognized both manta rays as distinct species (but referred to 
them as Mobula birostris and Mobula alfredi). Until the genus name 
change is formally accepted by the scientific community, we continue to 
recognize Manta birostris as a species under the genus Manta. As such, 
we consider Manta birostris to be a taxonomically-distinct species that 
meets the definition of ``species'' pursuant to section 3 of the ESA 
and is eligible for listing under the ESA.

Summary of ESA Section 4(a)(1) Factors Affecting the Giant Manta Ray

    As stated previously and as discussed in the proposed rule (82 FR 
3694; January 12, 2017), we considered whether any one or a combination 
of the five threat factors specified in section 4(a)(1) of the ESA are 
contributing to the extinction risk of the giant manta ray and result 
in the species meeting the definition of ``endangered species'' or 
``threatened species.'' The comments that we received on the proposed 
rule, as well as new information we collected since publication of the 
proposed rule, provided information that was either already considered 
in our analysis, was not substantial or relevant, or was consistent 
with or reinforced information in the status review and proposed rule, 
and thus, did not change our conclusions regarding any of the section 
4(a)(1) factors or their interactions. Therefore, all of the 
information, discussion, and conclusions regarding the factors 
affecting the giant manta ray contained in the final status review 
report (Miller and Klimovich 2017) and the proposed rule is reaffirmed 
in this final action.

Extinction Risk

    As discussed previously, the status review evaluated the 
demographic risks to the giant manta ray according to four categories--
abundance and trends, population growth/productivity, spatial 
structure/connectivity, and genetic diversity. As a concluding step, 
after considering all of the available information regarding 
demographic and other threats to the species, we rated the species' 
extinction risk according to a qualitative scale (high, moderate, and 
low risk). The information received from public comments on the 
proposed rule, as well as new information we collected since 
publication of the proposed rule, was either already considered in our 
analysis, was not substantial or relevant, or was consistent with or 
reinforced information in the status review report and proposed rule, 
and thus, did not affect our extinction risk evaluation for the giant 
manta ray. Our conclusion regarding the extinction risk for the giant 
manta ray remains the same. Therefore, all of the information, 
discussion, and conclusions on the extinction risk of the giant manta 
ray contained in the final status review report and the proposed rule 
is reaffirmed in this final action.

Protective Efforts

    In addition to regulatory mechanisms (considered under ESA section 
4(a)(1)(D)), we considered other efforts being made to protect giant 
manta rays (pursuant to ESA section 4(b)(1)(A)). We considered whether 
such protective efforts sufficiently ameliorated the identified threats 
to the point that they would alter the conclusions of the extinction 
risk analysis for the species. None of the information we received on 
the proposed rule affected our conclusions regarding conservation 
efforts to protect the giant manta ray. Thus, all of the information, 
discussion, and conclusions on the protective efforts for the giant 
manta ray contained in the final status review report and proposed rule 
are reaffirmed in this final action.

Final Determination

    We have reviewed the best available scientific and commercial 
information, including the petition, the information in the final 
status review report (Miller and Klimovich 2017), the comments of peer 
reviewers, public comments, and information that has become available 
since the publication of the proposed rule (82 FR 3694; January 12, 
2017). None of the information received since publication of the 
proposed rule altered our analyses or conclusions that led to our 
determination for the giant manta ray. Therefore, the determination in 
the proposed rule is reaffirmed in this final rule and stated below.
    Based on the best available scientific and commercial information, 
and after considering efforts being made to protect M. birostris, we 
find that the giant manta ray is not currently endangered or threatened 
throughout its range. However, the giant manta ray is likely to become 
an endangered species within the foreseeable future throughout a 
significant portion of its range (the Indo-Pacific and eastern Pacific 
portion). This portion satisfies the test for ``significance'' from the 
SPR Policy because, without the members in that portion, the species 
would be likely to become in danger of extinction in the foreseeable 
future throughout all of its range. For the reasons discussed in the 
proposed rule, we do not find that this significant portion meets the 
criteria of a DPS. Therefore, we have determined that the giant manta 
ray meets the definition of a threatened species and, per the SPR 
Policy, list it is as such throughout its range under the ESA.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
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 are not likely to 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 and certain other activities (16 U.S.C. 1538, 
1533(d)). In addition, recognition of the species' imperiled status 
through listing promotes conservation actions by Federal and State 
agencies, foreign entities, private groups, and individuals.

Identifying Section 7 Conference and Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS 
regulations (50 CFR part 402) 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

[[Page 2929]]

modify critical habitat. Our section 7 regulations require the 
responsible Federal agency to initiate formal consultation if a Federal 
action may affect a listed species or its critical habitat (50 CFR 
402.14(a)). Examples of Federal actions that may affect the giant manta 
ray include: Fishery harvest and management practices, military 
activities, alternative energy projects, dredging in known giant manta 
ray aggregation sites (e.g., observed feeding and cleaning sites), 
point and non-point source discharge of persistent contaminants in 
known giant manta ray aggregation sites, toxic waste and other 
pollutant disposal in known giant manta ray aggregation sites, and 
shoreline development in known giant manta ray aggregation sites.

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. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the ESA is no longer necessary. 16 U.S.C. 1532(3). 
Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, 
to the maximum extent prudent and determinable, critical habitat be 
designated concurrently with the listing of a species. Designations of 
critical habitat must be based on the best scientific data available 
and must take into consideration the economic, national security, and 
other relevant impacts of specifying any particular area as critical 
habitat.
    At this time, we find that critical habitat for the giant manta ray 
is not determinable because data sufficient to perform the required 
analyses are lacking. Specifically, we find that sufficient information 
is not currently available to: (1) Identify the physical and biological 
features essential to conservation of the species at an appropriate 
level of specificity, particularly given the uncertainty regarding 
habitats required to support its life history (e.g., pupping and 
nursery grounds remain unknown) and migratory movements, (2) determine 
the specific geographical areas that contain the physical and 
biological features essential to conservation of the species, 
particularly given the global range of the species, and (3) assess the 
impacts of the designation. Therefore, public input on features and 
areas in U.S. waters that may meet the definition of critical habitat 
for the giant manta ray is invited. Additional details about specific 
types of information sought are provided in the Information Solicited 
section later in this document. Input may be sent to the Office of 
Protected Resources in Silver Spring, Maryland (see ADDRESSES). Please 
note that we are not required to respond to any input provided on this 
matter.

Protective Regulations Under Section 4(d) of the ESA

    We are listing the giant manta ray (Manta birostris) as a 
threatened species. In the case of threatened species, ESA section 4(d) 
gives the Secretary discretion to determine whether, and to what 
extent, to extend the prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538(a)(1)) to the species, and authorizes us to issue 
regulations necessary and advisable for the conservation of the 
species. We have evaluated the needs of and threats to the giant manta 
ray and have determined that protective regulations pursuant to section 
4(d) are not currently necessary and advisable for the conservation of 
the species.
    As described in the proposed rule, the significant operative 
threats to the giant manta ray are overutilization by foreign 
commercial and artisanal fisheries in a significant portion of its 
range (i.e., the Indo-Pacific and eastern Pacific) and inadequate 
regulatory mechanisms in foreign nations to protect these manta rays 
from the heavy fishing pressure and related mortality in these waters 
outside of U.S. jurisdiction. The take and trade of the species by 
persons under U.S. jurisdiction were not identified as significant 
threats to the giant manta ray.
    Regarding potential take, as stated in the proposed rule, giant 
manta rays may be caught as bycatch in U.S. fisheries; however, given 
the rarity of the species in the U.S. bycatch data, current levels were 
found to be negligible and determined to only have a minimal impact on 
the status of the giant manta ray. Furthermore, in many portions of the 
species' range, and particularly in the SPR, current U.S. fishery 
regulations as well as U.S. state and territory regulations prohibit 
the retention of manta rays by persons under U.S. jurisdiction. For 
example, in the eastern Pacific Ocean, U.S. commercial fishing vessels 
are prohibited from retaining on board, transshipping, landing, 
storing, selling, or offering for sale any part or whole carcass of a 
mobulid ray caught by vessel owners or operators in the IATTC 
Convention Area (81 FR 50401, August 1, 2016). The state of Hawaii 
prohibits any person from knowingly capturing or killing a manta ray 
within state marine waters (HI Rev Stat 188-39.5 (2016)), and in 
Florida, it is illegal to harvest, possess, land, purchase, sell, or 
exchange any or any part of species of the genus Manta and Mobula in 
state waters (FL Admin Code 68B-44.008). In Guam, it is unlawful for 
any person to possess, sell, offer for sale, take, purchase, barter, 
transport, export, import, trade or distribute ray parts (including 
manta rays), unless for subsistence, traditional, or cultural sharing 
purposes (Article 1, Chapter 63 of Title 5, Guam Code Annotated, Sec. 
63114.2), and in the Commonwealth of the Northern Mariana Islands, it 
is illegal to feed, take, possess, sell, purchase, barter, offer to 
sell, purchase or barter, transport, export or import, any ray 
(including manta rays), alive or dead, or any part thereof (Pub. L. 15-
124). Additionally, as noted in the final status review report (Miller 
and Klimovich 2017), established Marine Protected Areas (MPAs) that 
limit or prohibit fishing also exist that cover areas with observed 
giant manta ray presence, including off Guam (Tumon Bay Marine 
Preserve), within the Gulf of Mexico (Flower Garden Banks National 
Marine Sanctuary), and in the Central Pacific Ocean (Pacific Remote 
Islands Marine National Monument).
    Overall, current management measures that are in place for 
fishermen under U.S. jurisdiction appear to directly and indirectly 
contribute to the infrequency of interactions between U.S. fishing 
activities and the threatened giant manta ray. As such, we do not 
believe these activities are contributing significantly to the 
identified threats of overutilization and inadequate regulatory 
measures. We, therefore, do not find that developing regulations under 
section 4(d) to prohibit some or all of these activities is necessary 
and advisable (considering the U.S. interaction with the species is 
negligible and its moderate risk of extinction is primarily a result of 
threats from foreign fishing activities).
    Additionally, as mentioned in the status review and proposed rule, 
manta rays were included on Appendix II of CITES at the 16 Conference 
of the CITES Parties in March 2013, with the listing going into effect 
on September 14, 2014. Export of manta rays and manta ray products, 
such as gill plates, require

[[Page 2930]]

CITES permits that ensure the products were legally acquired and that 
the Scientific Authority of the State of export has advised that such 
export will not be detrimental to the survival of that species (after 
taking into account factors such as its population status and trends, 
distribution, harvest, and other biological and ecological elements). 
Although this CITES protection was not considered to be an action that 
decreased the current listing status of the threatened giant manta ray 
(due to its uncertain effects at reducing the threats of foreign 
domestic overutilization and inadequate regulations, and unknown post-
release mortality rates from bycatch in industrial fisheries), it may 
help address the threat of foreign overutilization for the gill plate 
trade by ensuring that international trade of this threatened species 
is sustainable. Regardless, because the United States does not have a 
significant (or potentially any) presence in the international gill 
plate trade, we have concluded that any restrictions on U.S. trade of 
the giant manta ray that are in addition to the CITES requirements are 
not necessary and advisable for the conservation of the species.
    Therefore, because we find that the United States is not a 
significant contributor to the threats facing the giant manta ray, we 
have determined that protective regulations pursuant to section 4(d) 
under the ESA are not currently necessary and advisable for the 
conservation of the species. Any conservation actions for the giant 
manta ray that would bring it to the point that the measures of the ESA 
are no longer necessary will ultimately need to be implemented by 
foreign nations.

Information Solicited

    We request interested persons to submit relevant information 
related to the identification of critical habitat of the giant manta 
ray, including specific areas within the geographical area occupied by 
the species that include the physical and biological features essential 
to the conservation of the species and where such features may require 
special management considerations or protection. Areas outside the 
occupied geographical area should also be identified if such areas 
themselves are essential to the conservation of the species. ESA 
implementing regulations at 50 CFR 424.12(g) specify that critical 
habitat shall not be designated within foreign countries or in other 
areas outside of U.S. jurisdiction. Therefore, we request information 
only on potential areas of critical habitat within waters under U.S. 
jurisdiction.
    Section 4(b)(2) of the ESA requires the Secretary to consider the 
``economic impact, impact on national security, and any other relevant 
impact'' of designating a particular area as critical habitat. Section 
4(b)(2) also gives the Secretary discretion to consider excluding from 
a critical habitat designation any particular area where the Secretary 
finds that the benefits of exclusion outweigh the benefits of including 
the area in the designation, unless excluding that area will result in 
extinction of the species. For features and areas potentially 
qualifying as critical habitat, we also request information describing: 
(1) Activities or other threats to the essential features or activities 
that could be affected by designating them as critical habitat; and (2) 
the positive and negative economic, national security and other 
relevant impacts, including benefits to the recovery of the species, 
likely to result if these areas are designated as critical habitat. We 
seek information regarding the conservation benefits of designating 
areas within waters under U.S. jurisdiction as critical habitat. In 
keeping with the guidance provided by the Office of Management and 
Budget (2000; 2003), we seek information that would allow the 
monetization of these effects to the extent possible, as well as 
information on qualitative impacts to economic values.
    Information reviewed may include, but is not limited to: (1) 
Scientific or commercial publications; (2) administrative reports, maps 
or other graphic materials; (3) information received from experts; and 
(4) comments from interested parties. Comments and data are 
particularly sought concerning: (1) Maps and specific information 
describing the amount, distribution, and use type (e.g., foraging or 
migration) of giant manta ray habitats, as well as any additional 
information on occupied and unoccupied habitat areas; (2) the reasons 
why any habitat should or should not be determined to be critical 
habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA; (3) 
information regarding the benefits of designating particular areas as 
critical habitat; (4) current or planned activities in the areas that 
might be proposed for designation and their possible impacts; (5) any 
foreseeable economic or other potential impacts resulting from 
designation, and in particular, any impacts on small entities; (6) 
whether specific unoccupied areas may be essential to provide 
additional habitat areas for the conservation of the species; and (7) 
potential peer reviewers for a proposed critical habitat designation, 
including persons with biological and economic expertise relevant to 
the species, region, and designation of critical habitat. We solicit 
information from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party (see 
ADDRESSES).

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, 657 F. 2d 829 (6th Cir. 
1981), NMFS has 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 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not an E.O. 13771 regulatory action because this rule 
is exempt from review under E.O. 12866.

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.


[[Page 2931]]


    Dated: January 17, 2018.
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 to be 
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, amend the table in paragraph (e) by adding an 
entry for ``Ray, giant manta'' in alphabetical order under the 
``Fishes'' 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
 
 
                                                                      * * * * * * *
Ray, giant manta......................  Manta birostris..........  Entire species..........  83 FR [Insert Federal                  NA               NA
                                                                                              Register page where the
                                                                                              document begins], 1/22/
                                                                                              18.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).

* * * * *
[FR Doc. 2018-01031 Filed 1-19-18; 8:45 am]
 BILLING CODE 3510-22-P