59690 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 

these redeterminations and instruct U.S. 

Customs and Border Protection to assess 

countervailing duties on entries of the 

subject merchandise during the POR 

from Essar based on the revised 

assessment rates calculated by the 

Department. 

This notice is issued and published in 

accordance with section 516A(e)(1) of 

the Tariff Act of 1930, as amended. 

Dated: September 22, 2010. 

Ronald K. Lorentzen, 

Deputy Assistant Secretary for Import 

Administration. 

[FR Doc. 2010–24312 Filed 9–27–10; 8:45 am] 

BILLING CODE 3510–DS–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[Docket No. 100604243–0430–02] 

RIN 0648–XW88 

Endangered and Threatened Wildlife; 

Notice of 90-Day Finding on a Petition 

To List Warsaw Grouper as Threatened 

or Endangered Under the Endangered 

Species Act (ESA) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce. 

ACTION: Notice of 90-day petition 

finding. 

SUMMARY: We (NMFS) announce a 90- 

day finding on a petition to list warsaw 

grouper (Epinephelus nigritus) as 

threatened or endangered under the 

ESA. We find that the petition does not 

present substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

ADDRESSES: Copies of the petition and 

related materials are available upon 

request from the Chief, Protected 

Resources Division, Southeast Regional 

Office, NMFS, 263 13th Avenue South, 

St. Petersburg, FL 33701, or online from 

the NMFS HQ Web site: http:// 

www.nmfs.noaa.gov/pr/species/fish/ 

warsawgrouper.htm. 

FOR FURTHER INFORMATION CONTACT: 

Michael Barnette, NMFS Southeast 

Region, 727–551–5794, or Marta 

Nammack, NMFS Office of Protected 

Resources, 301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 3, 2010, we received a 

petition from the WildEarth Guardians 

to list warsaw grouper (Epinephelus 

nigritus) as threatened or endangered 

under the ESA. Copies of this petition 

are available from us (see ADDRESSES, 

above). 

ESA Statutory and Regulatory 

Provisions and Evaluation Framework 

Section 4(b)(3)(A) of the ESA of 1973, 

as amended (U.S.C. 1531 et seq.), 

requires, to the maximum extent 

practicable, that within 90 days of 

receipt of a petition to list a species as 

threatened or endangered, the Secretary 

of Commerce make a finding on whether 

that petition presents substantial 

scientific or commercial information 

indicating that the petitioned action 

may be warranted, and to promptly 

publish such finding in the Federal 

Register (16 U.S.C. 1533(b)(3)(A)). When 

it is found that substantial scientific or 

commercial information in a petition 

indicates the petitioned action may be 

warranted (a ‘‘positive 90-day finding’’), 

we are required to promptly commence 

a review of the status of the species 

concerned during which we will 

conduct a comprehensive review of the 

best available scientific and commercial 

information. In such cases, within 1 

year of receipt of the petition, we shall 

conclude the review with a finding as to 

whether, in fact, the petitioned action is 

warranted. Because the finding at the 

12-month stage is based on a more 

thorough review of the available 

information, as compared to the narrow 

scope of review at the 90-day stage, a 

‘‘may be warranted’’ finding does not 

prejudge the outcome of the status 

review. 

Under the ESA, a listing 

determination may address a ‘‘species,’’ 

which is defined to also include 

subspecies and, for any vertebrate 

species, a distinct population segment 

(DPS) that interbreeds when mature (16 

U.S.C. 1532(16)). A species, subspecies, 

or DPS is ‘‘endangered’’ if it is in danger 

of extinction throughout all or a 

significant portion of its range, and 

‘‘threatened’’ if it is likely to become 

endangered within the foreseeable 

future throughout all or a significant 

portion of its range (ESA sections 3(6) 

and 3(20), respectively, 16 U.S.C. 

1532(6) and (20)). The ESA requires us 

to determine whether species are 

threatened or endangered because of 

any one or a combination of the 

following five section 4(a)(1) factors: (1) 

The present or threatened destruction, 

modification, or curtailment of habitat 

or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) inadequacy of existing 

regulatory mechanisms; and (5) any 

other natural or manmade factors 

affecting the species’ existence (16 

U.S.C. 1533(a)(1)). 

ESA-implementing regulations issued 

jointly by NMFS and the U.S. Fish and 

Wildlife Service (USFWS; 50 CFR 

424.14(b)) define ‘‘substantial 

information’’ in the context of reviewing 

a petition to list, delist, or reclassify a 

species as the amount of information 

that would lead a reasonable person to 

believe that the measure proposed in the 

petition may be warranted. In evaluating 

whether substantial information is 

contained in a petition, the Secretary 

must consider whether the petition: (1) 

Clearly indicates the administrative 

measure recommended and gives the 

scientific and any common name of the 

species involved; (2) contains detailed 

narrative justification for the 

recommended measure, describing, 

based on available information, past and 

present numbers and distribution of the 

species involved and any threats faced 

by the species; (3) provides information 

regarding the status of the species over 

all or a significant portion of its range; 

and (4) is accompanied by the 

appropriate supporting documentation 

in the form of bibliographic references, 

reprints of pertinent publications, 

copies of reports or letters from 

authorities, and maps (50 CFR 

424.14(b)(2)). 

To make a 90-day finding on a 

petition to list a species, we evaluate 

whether the petition presents 

substantial scientific or commercial 

information indicating the subject 

species may meet the ESA’s definition 

of either an endangered or a threatened 

species, and that such status may be the 

result of one or a combination of the 

factors listed under section 4(a)(1) of the 

ESA. Thus, we first evaluate whether 

the information presented in the 

petition, along with the information 

readily available in our files, indicates 

that the species at issue faces extinction 

risk that is cause for concern. Risk 

classifications of the petitioned species 

by other organizations or made under 

other statutes may be informative, but 

may not provide rationale for a positive 

90-day finding; many times these 

classifications are generalized for a 

group of species, or only describe traits 

of species that could increase their 

vulnerability to extinction if they were 

being adversely impacted. We evaluate 

any information on specific 

demographic factors pertinent to 

evaluating extinction risk for the species 

at issue (e.g., population abundance and 

trends, productivity, spatial structure, 

age structure, sex ratio, diversity, 

current and historical range, habitat 

integrity), and the potential contribution 

of identified demographic risks to 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59691 

extinction risk for the species. We then 

evaluate the potential links between 

these demographic risks and the 

causative section 4(a)(1) factors. 

Information on threats should be 

specific to the species and should 

reasonably suggest that one or more of 

these factors may be operative threats 

that act or have acted on the species to 

the point that it may warrant protection 

under the ESA. Broad statements about 

generalized threats to the species, or 

identification of factors that could 

negatively impact a species, do not 

constitute substantial information that 

listing may be warranted. We look for 

information that indicates not just that 

a species is exposed to a factor, but that 

also indicates the species may be 

responding in a negative fashion, and 

then we assess the potential significance 

of that negative response. 

For a 90-day finding, we evaluate the 

petitioner’s request based upon the 

information in the petition and its 

references, and the information readily 

available in our files. We do not conduct 

additional research, we do not subject 

the petition to rigorous critical review, 

and we do not solicit information from 

parties outside the agency to help us in 

evaluating the petition. We will accept 

the petitioner’s sources and 

characterizations of the information 

presented, if they appear to be based on 

accepted scientific principles, unless we 

have specific information in our files 

that indicates the petition’s information 

is incorrect, unreliable, or otherwise 

irrelevant to the requested action. 

Conclusive information indicating the 

species may meet the ESA’s 

requirements for listing is not required 

to make a positive 90-day finding. If the 

information is equivocal, but reliable 

information supports a conclusion that 

listing the species may be warranted, we 

defer to the information that supports 

the petition’s position. Uncertainty or 

lack of specific information does not 

negate a positive 90-day finding, if the 

uncertainty or unknown information 

itself suggests an extinction risk of 

concern for the species at issue. 

Warsaw Grouper Species Description 

The warsaw grouper is a large 

member of the sea bass or serranid 

family distributed from North Carolina 

south into the Gulf of Mexico to the 

northern coast of South America (Parker 

and Mays, 1998). Warsaw grouper seem 

to be rare in the West Indies, with single 

records from Cuba, Haiti, and Trinidad; 

this rarity and their apparent absence 

from the western Caribbean shelf may 

be due to the dearth of deep-water 

fishing in this area (Heemstra and 

Randall, 1993). 

Adults typically inhabit rough, 

irregular bottoms including steep cliffs 

and rocky ledges of the continental shelf 

break in waters 180 to 1,700 feet (55 to 

525 m) deep, while juveniles may 

occasionally be found in shallower 

waters (Heemstra and Randall, 1993). 

Warsaw grouper is considered naturally 

rare, and specimens are most often 

caught incidentally in fisheries for 

snowy grouper and other deep-dwelling 

species (Huntsman et al., 1990). Very 

little information is available about the 

reproduction of warsaw grouper; eggs 

and larvae are presumed to be pelagic. 

The occurrence of post-spawning 

females in November may indicate a late 

summer spawning period (Bullock and 

Smith, 1991). Warsaw grouper is a longlived species (up to 41 years) and has a 

slow growth rate (Manooch and Mason, 

1987), with an estimated age of sexual 

maturity between 4 (Ault et al., 1998) 

and 9 years (Parker and Mays, 1998). 

While most serranid species are 

protogynous hermaphrodites, with 

individuals first maturing as females 

and only some large adults becoming 

males, this has not been verified in 

warsaw grouper. Maximum size is about 

7.7 feet (235 cm) and about 440 pounds 

(200 kg). Prey items include fish and 

crustaceans. 

Analysis of the Petition 

First we evaluated whether the 

petition presented the information 

indicated in 50 CFR 424.14(b)(2). The 

petition clearly indicates the 

administrative measure recommended 

and gives the scientific and any 

common name of the species involved; 

contains detailed narrative justification 

for the recommended measure, 

describing the distribution of the 

species, as well as the threats faced by 

the species; and is accompanied by the 

appropriate supporting documentation 

in the form of bibliographic references, 

reprints of pertinent publications, 

copies of reports or letters from 

authorities, and maps. However, the 

petition does not include information 

on the past and present numbers of the 

species, or information regarding the 

status of the species over all or a 

significant portion of its range, other 

than conclusions and opinions. This 

latter information is also not available in 

our files, as we discuss in detail below. 

The petition states that the warsaw 

grouper is imperiled, that it has 

declined and continues to decline, that 

the primary threat to the species is 

commercial fishing capture, including 

targeted capture and as bycatch, in 

gillnets, longlines, bottom trawls, and 

other fishing gear and activities, and 

that recreational fishers are likely 

contributing to the species’ 

endangerment. The petition states that 

the species’ biological constraints 

increase its susceptibility to adverse 

impacts from fishing, and that the 

species is inadequately protected by 

regulatory mechanisms from the threats 

it faces. Thus, the petition states that at 

least three of the five causal factors in 

section 4(a)(1) of the ESA are adversely 

affecting the continued existence of the 

warsaw grouper: overutilization in 

fisheries; inadequacy of existing 

regulatory mechanisms; and other 

natural or manmade factors, particularly 

the biological constraints of the species’ 

life history. 

Information on Extinction Risk 

The petition cites classifications made 

by NMFS, the International Union for 

Conservation of Nature (IUCN), the 

American Fisheries Society (AFS), and 

NatureServe to support its assertion that 

warsaw grouper is imperiled. Warsaw 

grouper was added to our species of 

concern list on April 15, 2004 (69 FR 

19975). Warsaw grouper had previously 

been included on our ESA candidate 

species list since 1999 (64 FR 33466, 

June 23, 1999). A species of concern is 

one about which we have some 

concerns regarding status and threats, 

but for which insufficient information is 

available to indicate a need to list the 

species under the ESA (71 FR 61022; 

October 17, 2006). Our rationale for 

including warsaw grouper on the 

species of concern list included a 

potential population decline and threats 

from fishing and bycatch. The IUCN 

classified warsaw grouper as critically 

endangered in 2006, a status assigned to 

species facing an extremely high risk of 

extinction in the wild, based on: ‘‘an 

observed, estimated, inferred or 

suspected population size reduction of 

≥ 80% over the last 10 years or three 

generations, whichever is the longer, 

where the reduction or its causes may 

not have ceased or may not be 

understood or may not be reversible, 

based on actual or potential levels of 

exploitation,’’ and ‘‘a population size 

reduction of ≥ 80%, projected or 

suspected to be met within the next 10 

years or three generations, whichever is 

the longer (up to a maximum of 100 

years), based on actual or potential 

levels of exploitation’’ (http:// 

www.iucnredlist.org/apps/redlist/ 

details/7860/0). In apparent 

contradiction with this classification, 

the IUCN’s supporting assessment for 

warsaw grouper states that its 

population trend is unknown and 

describes the status of warsaw grouper 

as ‘‘ambiguous.’’ The IUCN explains the 

critically endangered status for warsaw 


srobinson on DSKHWCL6B1PROD with NOTICES
59692 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 

grouper instead of a lower status as 

justified in part: ‘‘(a) Because there is no 

good evidence of a change in condition 

since the last assessment was 

conducted; (b) there is no clear 

indication that management is being 

effective; and (c) a precautionary 

approach is being taken, given 

increasing fishing effort in offshore 

waters where the species occurs.’’ 

The AFS developed its extinction risk 

criteria for marine fishes in part as a 

reaction to IUCN’s criteria, which the 

AFS Criteria Workshop stated ‘‘grossly 

overestimate the extinction risk for 

many if not most marine fish species’’ 

because marine fish exhibit a wide 

range of resilience to population 

declines based on life history 

parameters (Musick, 1999). The AFS 

(Musick et al., 2000) classified warsaw 

grouper in the U.S. as ‘‘endangered,’’ 

which they define as a species with a 

‘‘high risk of extinction in the wild in 

the immediate future (years),’’ and states 

the species is ‘‘now very rare, only small 

individuals observed’’ (from Huntsman 

et al., 1999). The AFS describes warsaw 

grouper’s risk factors as: ‘‘Very low 

productivity,’’ based on estimates of 

Brody growth coefficient and maximum 

age from taxa-specific literature used in 

Ault et al. (1998); rarity; protogynous 

hermaphroditism; and vulnerability to 

overfishing (Heemstra and Randall, 

1993). Finally, the AFS states warsaw 

grouper is particularly vulnerable ‘‘to 

extraordinary mortality because of their 

life history constraints’’ such as the 

species’ large size (Musick et al., 2000). 

NatureServe’s vulnerable 

classification is given to species that are 

‘‘at moderate risk of extinction or 

elimination due to a restricted range, 

relatively few populations, recent and 

widespread declines, or other factors,’’ 

but NatureServe does not provide 

specific information on warsaw 

grouper’s population size or trends. 

In summary, none of the cited 

classifications, including our own 

species of concern listing or other 

information in our files, include a 

specific analysis of extinction risk for 

warsaw grouper, or an analysis of 

population size or trends, or other 

information directly addressing whether 

the species faces extinction risk that is 

cause for concern. 

The petition describes a few 

demographic factors specific to warsaw 

grouper that could be indicative of its 

extinction risk, for which the petition 

provides some supporting information. 

These include a declining population 

trend, decrease in size of animals in the 

population, and rarity of males. The 

petition also asserts that small sizes of 

adult populations of warsaw groupers 

are contributing to the species’ 

extinction risk, but no information to 

support this contention is provided. The 

petition makes reference to the generally 

understood natural rarity of the species 

(e.g., citing results in Koenig et al. 

2000). However, rarity alone is not an 

indication that warsaw grouper faces an 

extinction risk that is cause for concern. 

A species’ rarity could be cause for 

concern if the species was distributed in 

small, isolated populations, or had a 

very restricted geographic range and 

was subject to specific habitat 

degradation. Neither of these conditions 

appears applicable to warsaw grouper. 

Rarity could also subject a species to 

heightened extinction risk if specific 

stressors are negatively affecting its 

status and trends. Therefore, we next 

evaluated whether information indicates 

warsaw grouper’s population has 

declined or continues to decline, and if 

so whether this suggests extinction risk 

that is cause for concern. 

Population decline can result in 

extinction risk that is cause for concern 

in certain circumstances, for instance if 

the decline is rapid and/or below a 

critical minimum population threshold 

and the species has low resilience for 

recovery from a decline (Musick, 1999). 

The petition states that fishing has 

likely resulted in a population decline 

of warsaw grouper, and uses 

commercial landings and recreational 

catch data to document the decline. 

Fishery landings and catch data may 

provide inferences about the population 

status and trends of a species, though 

such inferences may not be reliable in 

the absence of information regarding the 

level or distribution of fishery effort 

over time, changes in fishing practices, 

or changes in regulations that may affect 

catch independent of changes in a 

species’ population. 

The fisheries data described in the 

petition include a graph of weight of 

warsaw grouper landed in all South 

Atlantic fisheries combined from the 

late 1970s to the mid-1990s (from Parker 

and Mays, 1998), reduction in average 

weight of landed warsaw grouper, and 

conclusions from a study (Rudershausen 

et al., 2008) documenting warsaw 

grouper were caught recreationally in 

North Carolina in the 1970s, but not in 

2005–2006. Information in our files 

includes a number of reports, mostly 

associated with our fishery management 

actions under Magnuson Stevens 

Fishery Conservation and Management 

Act (MSFCMA), noting a decline in 

catch of warsaw grouper beginning 

around the mid to late 1970s through 

the late 1980s or early 1990s. Our 

species of concern listing similarly 

relied on the decline in landings in the 

late 1980s described in Parker and Mays 

(1998). As will be demonstrated below, 

we believe that warsaw grouper has 

always been too uncommonly captured 

in fisheries for data on landings or 

weight of fish landed to be a reliable 

indicator of population status and 

trends. 

Parker and Mays’ (1998) study 

objective was to assemble information 

on little known fish species of economic 

importance inhabiting deep reefs (100– 

300 m) along the south Atlantic coast of 

the U.S.; the information was needed to 

support management measures under 

the MSFCMA in the early 1990s that 

were triggered by considerable increases 

in the amount of effort exerted by 

commercial and recreational fisheries 

beginning in the mid-1970s. Parker and 

Mays (1998) describe a downward trend 

in commercial landings from 1973 

through 1995, but the authors also 

describe the commercial landings 

information available to them at the 

time as limited; reliable information on 

effort was described as unavailable, 

catch was often not reported by species, 

and less common species including 

warsaw grouper are described as ‘‘not 

sufficiently abundant to be targeted or 

recorded in catches.’’ This observation is 

also echoed by Potts (2001), who noted, 

‘‘the species is not that common and 

never has been in the South Atlantic 

region as long as records have been 

collected.’’ 

The recreational fishing data 

discussed in Parker and Mays (1998) are 

NMFS’ Marine Recreational Fisheries 

Statistics Survey (MRFSS) landings data 

and headboat landings data. The MRFSS 

includes telephone surveys of fishing 

effort and an access-site intercept survey 

of angler catch, which are then 

combined and extrapolated to obtain 

estimates of total catch, effort, and 

participation for marine recreational 

fisheries. Headboats are for-hire vessels 

that carry multiple recreational 

fishermen to fishing locations in Federal 

waters. Parker and Mays (1998) describe 

landings based on MRFSS data as highly 

variable, with an apparent large spike in 

1985 and a subsequent steep decline. 

We believe the landings data from 1985 

are unreliable as an indicator of trends 

in the warsaw grouper population 

numbers for a number of reasons. 

Notably, the 1985 MRFSS Atlantic 

landings were estimated to total 99,811 

fish and 1.28 million pounds (581.5 

metric tons (mt)), which is almost four 

times greater than the highest historical 

catch of warsaw grouper in the 

combined Atlantic and Gulf of Mexico 

commercial fishery (0.36 million 

pounds (162.6 mt) in 1965). The 1985 

MRFSS landings estimates were 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59693 

extrapolated from low survey effort and 

small numbers of anglers reporting 

catching warsaw grouper: 6 Anglers out 

of 5,426 surveyed in the South Atlantic 

region reported catching warsaw 

grouper. Likewise, the headboat data 

analyzed by Parker and Mays (1998) 

were also based on very few actual fish 

evaluated per year—the highest being 41 

fish in 1984. 

Landings data alone are not very 

useful in assessing the condition of a 

population as landings can fluctuate up 

and down for a variety of reasons. As 

mentioned above, information about 

fishing effort, fishing practices, and 

regulatory measures affecting catch is 

generally necessary to determine 

whether trends in fishery landings and 

catch are indicative of fish species’ 

population status or trends. For 

example, decline in catch per unit of 

effort (CPUE) is a generally accepted 

indicator of decline in abundance of a 

target fish species. The petition does not 

discuss information on effort and 

regulations respecting catch and effort. 

Parker and Mays (1998) discuss in 

general terms a considerable increase in 

the number of commercial and 

recreational vessels fishing for reef fish 

off the South Atlantic coast beginning in 

the mid-1970s. As suggested in Parker 

and Mays (1998), and other more recent 

information in our files, warsaw grouper 

is too infrequently captured in fisheries 

to allow for reliable estimation of effort 

or other biological metrics useful in 

estimating population size and trends. 

The most recent attempt at assessing 

warsaw grouper’s stock status, due to its 

MSFCMA classification of undergoing 

overfishing in the South Atlantic, 

concluded that commercial and 

recreational data available were 

insufficient to proceed with a stock 

assessment for the species due to data 

limitations, and specifically stated 

MRFSS data were insufficient to 

calculate CPUE indices across fishery 

sectors (SEDAR, 2004). As mentioned 

above, implemented regulatory 

measures have restricted catch or 

landings, and may have affected effort, 

beginning in the early 1990s. For 

example, a deep-water grouper 

commercial quota was established in 

1990 for the Gulf of Mexico, and a onefish per vessel per trip limit was 

imposed in 1994 for the South Atlantic 

(regulatory measures are discussed in 

detail below in analysis of 

overutilization). As such, these 

measures confound our use of landings 

data across the available time series as 

indicators of population status or 

trends, or extinction risk. 

The other information presented in 

the petition as evidence of a population 

decline of warsaw grouper is 

Rudershausen et al. (2008). However, 

the single quote from the study 

contained in the petition is misleading. 

The petition quotes the study, stating, 

‘‘while warsaw groupers were caught in 

the 1970s, they were not caught in 

2005–2006.’’ However, the petition 

neglects to mention that while no 

warsaw grouper were caught in 2005– 

2006, only one warsaw grouper was 

caught from the one study site in the 

1970s that was resampled in 2005–2006 

(Rudershausen et al., 2008). 

Additionally, the petition fails to note 

the study’s statement regarding ‘‘the 

total fishing effort in the 1970s was 

greater than 2005–2006, which could 

explain the absence of [this] species in 

the latter period.’’ 

The petition includes several 

examples of reduction in average weight 

of individual warsaw grouper landed in 

fisheries to support their assertion the 

species is imperiled, including weight 

data reported in Parker and Mays 

(1988). Declines in average weight of 

fish may result from excessive fishing 

pressure, and may be a cause for 

concern due to potential associated 

declines in fecundity, as well as 

population instability due to truncation 

of the age structure. Conversely, it may 

also occur due to the introduction of 

large numbers of new recruits into the 

population or if fishing effort is focused 

on areas predominated by younger, 

smaller individuals of a species (e.g., 

shallower habitats closer to shore). 

Regardless, we believe data on landed 

weight of warsaw grouper in general is 

unreliable to support inferences of 

changes in the population status or 

trends and extinction risk for the 

species. As discussed above, the 

numbers of fish measured to describe 

trends in weight per fish in Parker and 

Mays (1998) were extremely low 

throughout the period studied, with a 

maximum of 58 fish sampled in the 

commercial fishery in 1988, and 41 fish 

sampled in the headboat fishery in 

1984. These low sample sizes resulted 

in very large standard deviations in 

mean weights in many years. Based on 

the data analyzed, Parker and Mays 

(1998) describe a reduction in average 

weight of warsaw grouper caught by 

headboats over time, but an increasing 

average weight in commercially caught 

fish towards the end of the study period. 

Thus, these data are conflicting as an 

indicator of the status or trends in the 

warsaw grouper population. 

Additionally, since warsaw grouper is 

an uncommonly caught recreational 

species, weights are frequently 

unreported in the MRFSS database, so 

there is limited weight data to evaluate 

for indications of population-level 

trends. For example, MRFSS estimates 

3,711 warsaw grouper were caught by 

Gulf of Mexico recreational fishers in 

1989, but no poundage is reported for 

that year. Further, given the size of adult 

warsaw grouper and their deep reef 

habitats, the difficulty in landing larger 

individuals may bias weight data 

toward smaller, younger fish. 

The petition references an observation 

of rarity of males in the warsaw grouper 

population as an indication of its 

extinction risk (Huntsman’s pers. obs., 

from Chuen and Huntsman, 2006). 

Protogynous fish populations exhibit 

naturally-skewed sex ratios, since fish 

do not transition from females to male 

until they reach larger sizes or older 

ages. Fishing pressure can exacerbate 

this sex bias if older, larger male fish are 

disproportionately removed, potentially 

leading to reproductive failure, or by 

reducing the mean lifespan of the 

population and reducing the probability 

that females will survive long enough to 

become males (Heppell et al., 2006). 

The seriousness of these phenomena in 

protogynous fish would depend in part 

on whether a species is plastic or 

inflexible in the size or age of sex 

transition, and whether transition is 

triggered by biological or social cues, or 

both (Heppell et al., 2006). Protogynous 

hermaphroditism in warsaw grouper has 

not been confirmed. Moreover, we have 

no information that indicates the size or 

age at which warsaw grouper might 

transition from female to male, or what 

the cues for transition may be. Even if 

the species is protogynous, there is no 

data to evaluate current or historical sex 

ratios within the population to 

determine if fishing pressure is 

selectively removing males resulting in 

an active extinction risk. 

We conclude that the petition and 

information in our files on demographic 

factors of warsaw grouper does not 

present substantial information to 

indicate the species may be facing an 

extinction risk level that is cause for 

concern. Even if fisheries landings data 

could be interpreted as evidencing a 

decline in warsaw grouper’s population, 

that would seem to have been limited to 

the corresponding marked increase in 

commercial and recreational fishing 

effort for all reef fish off the 

southeastern U.S. beginning in the mid1970s. Management measures designed 

to rebuild stocks of deep-water grouper 

in general, and warsaw grouper 

specifically, in the early 1990s resulted 

in immediate and drastic reductions in 

landings. There is no indication that a 

population decline that might have 

occurred in the 1970s and 1980s 


srobinson on DSKHWCL6B1PROD with NOTICES
59694 Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 

resulted in depensation or other 

negative effects such as loss of age 

classes, truncation of age structure, 

absence of large individuals, or shift in 

sex ratio in the warsaw grouper 

population. 

Information on Threats to the Species 

We next evaluated whether the 

information in the petition and 

information in our files concerning the 

extent and severity of one or more of the 

ESA section 4(a)(1) factors suggests 

these impacts and threats may be posing 

a risk of extinction for warsaw grouper 

that is cause for concern. 

Overutilization in Fisheries 

The petition states that ‘‘the primary 

threat to the warsaw grouper is historic 

and continued overfishing.’’ In support, 

the petition states the South Atlantic 

Fishery Management Council (SAFMC) 

considers warsaw grouper ‘‘overfished 

and undergoing overfishing (NMFS 

2003).’’ The most recent Report to 

Congress on the Status of U.S. Fisheries 

(NMFS, 2008, 2009) lists warsaw 

grouper under SAFMC jurisdiction as 

undergoing overfishing; the species’ 

status in the Gulf of Mexico is listed as 

unknown. A species undergoing 

overfishing is one where the current 

fishing mortality exceeds an identified 

mortality threshold, while an overfished 

species is one where the current 

biomass falls short of an identified stock 

threshold; typically, overfishing leads to 

a stock becoming overfished. These 

MSFCMA classifications do not 

necessarily indicate that a species may 

warrant listing as a threatened or 

endangered species, however, because 

these classifications do not have any per 

se relationship to a species’ extinction 

risk. For example, our 2007 status 

review for the Atlantic white marlin (73 

FR 843, January 4, 2008; http:// 

sero.nmfs.noaa.gov/pr/ 

endangered%20species/pdf/ 

2007_Atlantic_white_marlin_

status_%20review.pdf) explained in 

detail important distinctions between 

the terms ‘‘overfished’’ from the 

MSFCMA context, and ‘‘overutilization’’ 

as used in the ESA context. While a 

stock can be exploited to the point of 

diminishing returns where the objective 

is to sustain a harvest of the species, 

that over-exploitation in and of itself 

does not imply a continuing downward 

spiral for a population. A population 

may equilibrate at an abundance lower 

than that which would support a 

desired harvest level, but can still be 

stable at that level if fishing effort is 

stable. 

The petition also expresses concern 

over potential bycatch mortality. The 

MSFCMA defines bycatch to mean fish 

harvested in a fishery, but which are not 

sold or kept for personal use, and 

includes economic discards and 

regulatory discards; it does not include 

fish released alive under a recreational 

catch and release fishery management 

program. According to SEDAR (2004), 

estimated release mortality rates for the 

commercial and recreational warsaw 

grouper fisheries are not available. 

There is no available information on 

post-release mortality rates of warsaw 

grouper, but bycatch mortality, 

including post-release mortality, is a 

potential concern for deep-water species 

due to the likelihood of barotrauma (i.e., 

injury resulting from expansion of 

gasses in internal spaces as ambient 

pressure is reduced during ascent). The 

SAFMC has noted that under the 

existing discard logbook program, 

discards are self reported and involve a 

high degree of uncertainty, and they 

also suspect that the incidental bycatch 

of warsaw grouper may be responsible 

for the continued overfishing status of 

the species. However, bycatch may not 

be a significant issue for warsaw 

grouper due to its natural rarity, which 

likely prevents significant numbers (i.e., 

beyond the one-fish per vessel limit) 

from being caught by anglers in the first 

place, to be subsequently released and 

subjected to potentially high bycatch 

mortality rates. Estimates for warsaw 

grouper discards in the South Atlantic 

commercial deep-water grouper fishery 

during all handline and bandit rig gear 

trips from August 2001 through July 

2003 indicate a mean discard rate of 

0.098 fish per trip (SEDAR, 2004), and 

thus a low level of bycatch. Available 

data indicate bycatch mortality, even 

with a 100 percent release mortality 

rate, is not an extinction threat to 

warsaw grouper because of low catch 

rates. For example, the estimated 

average annual warsaw grouper catchper-trip on commercial South Atlantic 

deep-water grouper trips (1,674 average 

annual trips) from 1994–2002 was 0.10 

(SEDAR, 2004). Additionally, the 

annual average of warsaw grouper 

discards from commercial, headboat, 

and MRFSS during 2005–2008 was 

estimated to be 80 fish (SAFMC, 2009). 

Thus, we believe these low catch and 

retention levels of warsaw grouper 

prevent bycatch mortality from 

producing an extinction risk of concern. 

In summary, the petition and 

information in our files does not 

comprise substantial information 

indicating that overutilization may 

have, or may continue to be causing 

extinction risk of concern in warsaw 

grouper. 

Inadequacy of Existing Regulatory 

Mechanisms 

The petition states that existing 

regulatory mechanisms are inadequate 

to prevent endangerment or extinction 

of warsaw grouper, focusing on Federal 

fishing regulations. Specifically, the 

petition identifies the lack of minimum 

size, lack of possession limits, and a 726 

mt overall deep-water grouper quota in 

the Gulf of Mexico, and the 1-fish pervessel per-trip commercial and 

recreational limit in the South Atlantic 

that is inadequate given the number of 

fishers. 

In Federal waters of the Gulf of 

Mexico, warsaw grouper is managed by 

the Gulf of Mexico Fishery Management 

Council (GMFMC) through their Reef 

Fish Fishery Management Plan (FMP). 

In 1990, Amendment 1 to the FMP 

established a 1.8 million pound (816 mt) 

commercial quota for deep-water 

groupers, which includes misty, snowy, 

yellowedge, speckled hind, and warsaw 

grouper, and also includes scamp after 

the shallow-water grouper quota is 

filled; since 2004, the deep-water 

grouper commercial quota has been set 

at 1.02 million pounds (463 mt). 

Available species-specific commercial 

landings reveals the Gulf of Mexico 

fishery has never exceeded 0.3 million 

pounds (140 mt) of warsaw grouper. 

Amendment 16B to the FMP, 

implemented on November 24, 1999, 

established a one-fish per vessel 

recreational bag limit for warsaw 

grouper, and a prohibition on sale of 

warsaw grouper when caught 

recreationally. According to MRFSS 

landing statistics, this management 

action reduced recreational landings to 

low levels, averaging approximately 

1,300 fish or 23,000 pounds (10.4 mt) of 

warsaw grouper annually for the period 

1999 through 2009, compared to 

approximately 8,000 fish or 85,000 

pounds (38.6 mt) annually for the 

period 1988 through 1998. Additionally, 

the GMFMC’s objective for lack of a 

minimum size in the Gulf of Mexico is 

to curb bycatch of this deep-water 

grouper species. Allowing commercial 

fishermen to retain warsaw grouper that 

may otherwise become regulatory 

discards due to size prevents these fish 

from being thrown back dead due to 

barotrauma and also excluded from 

landings statistics. 

In Federal waters of the U.S. South 

Atlantic, warsaw grouper is managed by 

the SAFMC through their Snapper 

Grouper FMP. Amendment 6 to the 

FMP, effective on July 27, 1994, 

included a one-fish per vessel, per trip, 

commercial and recreational possession 

limit for warsaw grouper; a prohibition 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 187 / Tuesday, September 28, 2010 / Notices 59695 

on the sale of warsaw grouper; and 

established the Oculina Experimental 

Closed Area, which prohibited fishing 

for all snapper grouper species within 

this area (59 FR 27242). Since the 

implementation of Amendment 6 in 

1994, commercial landings of warsaw 

grouper have annually averaged 

approximately 240 pounds (0.1 mt) 

through 2008. Prior to this action, 

commercial landings averaged 

approximately 17,000 pounds (7.7 mt) 

during the previous 14-year time frame, 

1981 through 1994. 

The petition, its references, and 

numerous sources have stated that 

establishment of large marine protected 

areas is likely to be the most effective 

measure for protection and conservation 

of warsaw grouper. Studies have found 

larger and more abundant grouper in 

closed areas than in similar, 

unprotected areas (Sedberry et al., 

1999). Yet, the petition fails to 

acknowledge that this objective has 

characterized Federal fishery 

management of warsaw grouper since 

the early 1990s. As discussed above, the 

Oculina Banks, a unique deep-water 

coral reef ecosystem off the South 

Atlantic coast of the U.S., was protected 

beginning in 1994 specifically to 

facilitate rebuilding of deep-water 

grouper stocks. Amendment 13A to the 

FMP, effective on April 26, 2004, 

extended the prohibition on fishing for 

or possessing snapper grouper species 

within the Oculina Experimental Closed 

Area for an indefinite period (69 FR 

15731). On February 12, 2009, 

Amendment 14 to the FMP established 

eight marine protected areas in which 

fishing for or possession of South 

Atlantic snapper grouper species is 

prohibited (74 FR 1621). Similarly, 

several large closed areas have been 

established in the Gulf of Mexico, 

including the Madison and Swanson 

and Steamboat Lump marine reserves. 

In summary, the petition and 

information in our files does not 

constitute substantial information 

indicating existing regulatory 

mechanisms are inadequate to prevent, 

or are contributing to, extinction risk for 

warsaw grouper that is cause for 

concern. To the contrary, available 

information suggests management 

actions have significantly reduced 

landings, thereby reducing risk of 

overutilization in both the Gulf of 

Mexico and South Atlantic. 

Furthermore, closures of large areas in 

the Gulf of Mexico and South Atlantic 

to fishing effort, including known reef 

habitats important to deep-water 

groupers, likely offer conservation 

benefits to the species. 

Other Natural or Manmade Factors 

The petition and several referenced 

studies state that warsaw grouper is 

vulnerable to increased risk of 

extinction, particularly from fishing 

pressure, due to biological constraints, 

including its large size, long lifespan, 

late age of sexual maturity, low rates of 

population increase, protogynous 

hermaphroditism, and formation of 

spawning aggregations that can be easily 

targeted by fishermen. Concerns about 

the inherent vulnerability of rare deepwater grouper species has been a 

recurring justification for Federal 

fishery management actions 

implemented under the MSFCMA. 

However, as discussed above, fishing 

pressure has been severely curtailed on 

this species. Moreover, neither the 

petition nor information in our files 

suggests that fishing pressure has 

resulted in changes in population 

metrics for the species that might be 

expected given its particular biological 

constraints. Additionally, the petition’s 

inclusion of the species’ vulnerability to 

fishing pressure during spawning 

aggregations is inaccurate. While some 

grouper species, such as goliath and 

black grouper, are known to form 

spawning aggregations, no published 

studies or other available information in 

our files document warsaw grouper 

aggregate to spawn. 

The petition also lists potential small 

population size of adult warsaw grouper 

and human population growth as other 

natural or manmade factors contributing 

to warsaw grouper’s vulnerability, but 

does not provide any supporting 

information to indicate these 

generalized concerns are actually 

negatively affecting warsaw grouper. 

Therefore, we conclude that the 

petition and information in our files 

does not present substantial information 

to suggest that other natural or 

manmade factors, alone or in 

combination with other factors such as 

fishing pressure, may be causing 

extinction risk of concern in warsaw 

grouper. 

Petition Finding 

After reviewing the information 

contained in the petition, as well as 

information readily available in our 

files, we conclude the petition fails to 

present substantial scientific or 

commercial information indicating the 

petitioned action may be warranted. 

References Cited 

A complete list of all references is 

available upon request from the 

Protected Resources Division of the 

NMFS Southeast Regional Office (see 

ADDRESSES). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: September 22, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

[FR Doc. 2010–24334 Filed 9–27–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

Foreign-Trade Zones Board 

[Docket 55–2010] 

Foreign-Trade Zone 169—Manatee 

County, Florida; Extension of 

Subzone; Aso LLC (Adhesive Bandage 

Manufacturing); Sarasota County, FL 

An application has been submitted to 

the Foreign-Trade Zones Board (the 

Board) by the Manatee County Port 

Authority, grantee of FTZ 169, 

requesting to indefinitely extend 

Subzone 169A, on behalf of Aso LLC 

(formerly Aso Corporation) (Aso), 

located in Sarasota County, Florida. The 

application was submitted pursuant to 

the provisions of the Foreign-Trade 

Zones Act, as amended (19 U.S.C. 81a– 

81u), and the regulations of the Board 

(15 CFR part 400). It was formally filed 

on September 23, 2010. 

Subzone 169A (229 employees, total 

annual capacity of 2.2 billion bandage 

strips per year) was approved by the 

Board in 2000 for the manufacture of 

adhesive bandages under FTZ 

procedures (Board Order 1120, 65 FR 

58508–58509, 9/29/2000) for a period of 

4 years of activation, subject to 

extension upon review. Subzone 169A 

consists of one site (166,000 square feet 

of enclosed space on 38 acres) located 

at 300 Sarasota Center Blvd., within the 

International Trade Industrial Park, east 

of Sarasota (Sarasota County), Florida. 

Since approval, the subzone has been 

activated intermittently since the 

company has at times instead used 

various duty suspension provisions on 

adhesive tape. Aso is now requesting to 

indefinitely extend its subzone status 

with manufacturing authority to 

produce adhesive bandages (HTSUS 

3005.10) using foreign-sourced adhesive 

tape (HTSUS 3919.10), representing 

some 22 percent of the final product 

value. 

FTZ procedures would exempt Aso 

from customs duty payments on the 

foreign adhesive tape used in export 

production. The company anticipates 

that some 6 percent of the plant’s 

shipments will be exported. On its 

domestic sales, Aso would be able to 

choose the duty rate during customs 


srobinson on DSKHWCL6B1PROD with NOTICES