[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Notices]
[Pages 59690-59695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24334]


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

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

[[Page 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 long-lived 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

[[Page 59692]]

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

[[Page 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 one-fish 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 mid-1970s. 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

[[Page 59694]]

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 catch-per-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 per-vessel 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

[[Page 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 deep-water 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