82_FR_6321 82 FR 6309 - Endangered and Threatened Wildlife and Plants; Final Rule To List Two Guitarfishes as Threatened Under the Endangered Species Act

82 FR 6309 - Endangered and Threatened Wildlife and Plants; Final Rule To List Two Guitarfishes as Threatened Under the Endangered Species Act

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range6309-6317
FR Document2017-00680

We, NMFS, issue a final rule to list two foreign marine guitarfish species under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the blackchin guitarfish (Rhinobatos cemiculus) and common guitarfish (Rhinobatos rhinobatos) warrant listing as threatened species. We will not designate critical habitat for either of these species because the geographical areas occupied by these species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are currently essential to the conservation of either of these species.

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 6309-6317]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00680]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 150211138-7024-02]
RIN 0648-XD771


Endangered and Threatened Wildlife and Plants; Final Rule To List 
Two Guitarfishes as Threatened Under the Endangered Species Act

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final rule to list two foreign marine 
guitarfish species under the Endangered Species Act (ESA). We 
considered comments submitted on the proposed listing rule and have 
determined that the blackchin guitarfish (Rhinobatos cemiculus) and 
common guitarfish (Rhinobatos rhinobatos) warrant listing as threatened 
species. We will not designate critical habitat for either of these 
species because the geographical areas occupied by these species are 
entirely outside U.S. jurisdiction, and we have not identified any 
unoccupied areas within U.S. jurisdiction that are currently essential 
to the conservation of either of these species.

DATES: This final rule is effective February 21, 2017.

ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Brendan Newell or Marta Nammack NMFS, 
Office of Protected Resources (OPR), (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

    On July 15, 2013, we received a petition from WildEarth Guardians 
to list 81 marine species or subpopulations as threatened or endangered 
under the ESA. This petition included species from many different 
taxonomic groups, and we prepared our 90-day findings in batches by 
taxonomic group. We found that the petitioned actions may be warranted 
for 24 of the species and 3 of the subpopulations and announced the 
initiation of status reviews for each of the 24 species and 3 
subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 
2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; 
and 79 FR 10104, February 24, 2014). On September 19, 2016, we 
published a proposed rule to list the blackchin guitarfish (Rhinobatos 
cemiculus) and the common guitarfish (Rhinobatos rhinobatos) as 
threated species (81 FR 64094). We requested public comment on 
information in the draft status review and proposed rule, and the 
comment period was open through November 18, 2016. This final rule 
provides a discussion of the information we received during the public 
comment period and our final determination on the petition to list the 
blackchin guitarfish and the common guitarfish under the ESA. The 
status of the findings and relevant Federal Register notices for the 
other 22 species and 3 subpopulations can be found on our Web site at 
www.nmfs.noaa.gov/pr/species/petition81.htm.

Listing Species Under the Endangered Species Act

    We are responsible for determining whether species are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this 
determination, we consider first whether a group of organisms 
constitutes a ``species'' under the ESA, then whether the status of the 
species qualifies it for listing as either threatened or endangered. 
Section 3 of the ESA defines a ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.''
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' We interpret an 
``endangered species'' to be one that is presently in danger of 
extinction. A ``threatened species,'' on the other hand, is not 
presently in danger of extinction, but is likely to become so in the 
foreseeable future (that is, at a later time). In other words, the 
primary statutory difference between a threatened and endangered 
species is the timing of when a species may be in danger of extinction, 
either presently (endangered) or in the foreseeable future 
(threatened).
    When we consider whether a species might qualify as threatened 
under the ESA, we must consider the meaning of the term ``foreseeable 
future.'' It is appropriate to interpret ``foreseeable future'' as the 
horizon over which predictions about the conservation status of the 
species can be reasonably relied upon. The foreseeable future

[[Page 6310]]

considers the life history of the species, habitat characteristics, 
availability of data, particular threats, ability to predict threats, 
and the reliability to forecast the effects of these threats and future 
events on the status of the species under consideration. Because a 
species may be susceptible to a variety of threats for which different 
data are available, or which operate across different time scales, the 
foreseeable future is not necessarily reducible to a particular number 
of years.
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened due to any of the following 
factors: The present or threatened destruction, modification, or 
curtailment of its habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; the inadequacy of existing regulatory mechanisms; or other 
natural or manmade factors affecting its continued existence. Under 
section (4)(b)(1)(A), we are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
to protect the species.
    In making a listing determination, we first determine whether a 
petitioned species meets the ESA definition of a ``species.'' Next, 
using the best available information gathered during the status review 
for the species, we complete a status and extinction risk assessment. 
In assessing extinction risk for these two guitarfishes, we considered 
the demographic viability factors developed by McElhany et al. (2000). 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our status 
reviews, including for Pacific salmonids, Pacific hake, walleye 
pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, 
scalloped hammerhead sharks, and black abalone (see www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the 
collective condition of individual populations is considered at the 
species level according to four viable population descriptors: 
abundance, growth rate/productivity, spatial structure/connectivity, 
and diversity. These viable population descriptors reflect concepts 
that are well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk (NMFS 2015).
    We then assess efforts being made to protect the species to 
determine if these conservation efforts are adequate to mitigate the 
existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, 
when making a listing determination for a species, to take into 
consideration those efforts, if any, being made by any State or foreign 
nation to protect the species.

Summary of Comments

    In response to our request for comments on the proposed rule, we 
received five comment letters. Two comment letters were from foreign 
governments and clarified information about their relevant regulations. 
One comment letter was from an environmental nonprofit organization 
supporting our proposed listing decision. Two comment letters were 
submitted anonymously, each challenging a number of our statements or 
conclusions in the status review or proposed rule, generally without 
providing references or evidence that would allow us to investigate 
further. One commenter also provided some editorial comments, which 
were incorporated in the status review as appropriate. Summaries of 
issues raised by the public comments received and our responses are 
provided below, with references where appropriate.
    Comment 1: One commenter pointed out that R. cemiculus is also 
referred to in some of the literature by the taxonomic synonym 
Glaucostegus cemiculus.
    Response: The fact that Glaucostegus cemiculus is a synonym for R. 
cemiculus has been added to the Taxonomy and Distinctive 
Characteristics section of the status review. Although we did not 
include this synonym in the draft status review this did not impact the 
development of the status review or proposed rule. We were aware of 
this synonym and searched for publications related to this species 
using both Rhinobatos cemiculus and Glaucostegus cemiculus while 
gathering information for the status review.
    Comment 2: One commenter disagreed with our description of the 
smallest reported length for a fish in a study as the ``minimum total 
length (TL),'' stating that minimum TL is always 0 mm for all animals.
    Response: The word minimum was used while discussing the smallest 
lengths ever reported for juveniles of each species. We did not intend 
to imply that the reported lengths were the smallest possible lengths 
that the animals could be. We have revised the status review to clarify 
this point.
    Comment 3: One commenter noted that we did not include the k value 
for R. rhinobatos reported in Ismen et al. (2007) in the discussion 
about growth rates.
    Response: The k value from Ismen et al. (2007) has been added to 
the discussion in the Reproduction and Growth section of the status 
review.
    Comment 4: One commenter claimed our analysis is biased because we 
discuss ``conflict'' in the literature regarding conclusions 
researchers have reached about the two guitarfish species' reproductive 
potential and growth rates. This commenter stated that these different 
conclusions reached by researchers are not conflicting conclusions but 
are evidence of intraspecies variation, which could be evidence of 
population structure. The same party made multiple other comments about 
regional variations in morphology and biology indicating population 
structure. An additional commenter also claimed that there is more 
evidence for population structuring in these guitarfishes than three 
ESA-listed species of angelshark, Squatina aculeata, S. oculata, and S. 
squatina. These three Squatina species were listed as endangered on 
August 1, 2016 (81 FR 50394). This commenter provided no references to 
validate this claim.
    Response: We disagree with the commenter's implication that noting 
conflicting conclusions from different authors about a species' life 
history implies bias. We acknowledge that variations in biology in 
different portions of a species' range could imply population 
structure. However, Lteif (2015) attributed these variations to 
environmental differences throughout each species' range (e.g., food 
availability and water temperatures) or the relatively small amount of 
data on the species and differences in sampling approach. ICES (2010) 
stated that the relationships between the Mediterranean and Atlantic 
stocks of R. cemiculus and R. rhinobatos are unclear. We found no other 
discussions of population structure in the available information. Given 
the lack of information, we could not reach conclusions about 
population structure. Our status review presents the best available 
information and notes where authors have reached different conclusions 
to accurately represent the available information.
    Comment 5: One commenter asserted that the discussion in the status 
review of both species' preference for warmer waters is moot because 
the only temperature data provided in the document is sea surface 
temperature data, and as both species are demersal, they live below the 
thermocline. This commenter also asserted that, in our

[[Page 6311]]

discussion about the threat of climate change in the status review, we 
failed to address specifically how changing bottom temperatures will 
affect the species.
    Response: According to the best available scientific information, 
both of the guitarfishes are demersal species that typically occur up 
to a maximum depth of 100m and spend at least a portion of their lives 
in shallow waters. The only information we found regarding how these 
species interact with water temperature is that both species prefer 
warmer, subtropical waters (Capape and Zaouali 1994; Corsini-Foka 2009; 
Edelist 2014). The discussion in the status review is about the role 
that temperature likely plays in restricting many Mediterranean species 
to biogeographic ranges. While we consider this information relevant to 
understanding both guitarfish species' habitat and distribution, we 
explicitly acknowledged in the draft status review that we found no 
information on how any particular isotherm affects the distribution and 
abundance of these guitarfish species. We found no discussion in the 
scientific literature regarding how these species interact with 
thermoclines, the depths of which likely vary seasonally and regionally 
given the wide distribution of these species (Coll et al., 2010). 
Specifically regarding climate change, Akyol and Capap[eacute] (2014) 
and Rafrafi-Nouira et al. (2015) both attributed shifts in R. cemiculus 
distribution to warming waters but did not discuss bottom temperatures 
or thermoclines. No references were provided by the commenter to 
explain how both species interact with thermoclines or invalidate our 
interpretation that sea surface and mixed layer temperature is likely 
relevant to the distribution of these subtropical species.
    Comment 6: One commenter asserted that our assumption that both 
guitarfish species are likely mirroring the trend of decreasing 
elasmobranch and batoid (rays, skates, guitarfishes, etc.) landings in 
southern Tunisia, where the best available information shows that both 
guitarfish species made up a high proportion of the total elasmobranch 
catch in the longline and gillnet fisheries over a 2-year period, is 
flawed, because, ``A high percentage of one species in a catch at one 
time says nothing about the trend of that species over time as 
different species can be targeted or caught with different methods or 
have different population structures and sources and sinks.''
    Response: We agree that a high percentage of one species in a catch 
at one time does not indicate a trend. However, the data in question 
were collected across two different fisheries (longline and gillnet) 
and in each case the data were collected over multiple months in both 
2007 and 2008 years (Echwikhi et al., 2013; Echwikhi et al.. 2012). 
Echwikhi et al. (2013) and Echwikhi et al. (2012) discuss their results 
in the context of the trends in elasmobranch abundance declines in the 
region. An additional citation (Brada[iuml] et al., 2006) has been 
added to the status review and provides further indication that both 
species have been and are commonly targeted and landed in southern 
Tunisia. Given the high proportion of these guitarfish species in the 
studied artisanal fisheries catches, and the fact that these species 
are known to be commonly targeted and landed in southern Tunisia, it is 
likely that the abundance trends for these species are similar to the 
overall trend of declining elasmobranch catches in southern Tunisia.
    Comment 7: One commenter made several comments that there is no 
evidence that R. rhinobatos and R. cemiculus were likely historically 
rare throughout most of the northwestern Mediterranean relative to 
other portions of its range (e.g., the southern and eastern 
Mediterranean). The same commenter challenged our conclusion that both 
species have likely always been rare in all parts of their Atlantic 
ranges north of the Strait of Gibraltar. This commenter asserted that 
we failed to include museum records and anthropological literature, but 
the commenter did not provide any references.
    Response: Our interpretation of the best available information is 
that R. rhinobatos and R. cemiculus were present, but likely uncommon 
or rare throughout most of the northwestern Mediterranean (including 
the waters off Spain, the seas around Italy, and, in the case of R. 
rhinobatos, the waters of France), with the exception of the waters 
around Sicily and the Balearic Islands. This interpretation is 
consistent with the conclusions reached in the best available 
scientific literature (Akyol and Capap[eacute] 2014; Capap[eacute] et 
al., 2006; Capap[eacute] et al., 1975; Dul[thorn]i[uuml] et al., 2005; 
Psomadakis et al., 2009). In the parts of their Atlantic ranges north 
of the Strait of Gibraltar, as stated in the status review, we found 
information that indicates both species have been rare for at least the 
last 45 years (ICES 2016), and no information that indicates either 
species was common at any time in what is known to be the northern 
extent of their ranges.
    To reach these conclusions we searched for data and publications 
related to both species, and guitarfishes in general, in all of the 
countries and seas that are considered part of either species' 
historical range. In the status review, we considered and incorporated 
the best available information, which included peer reviewed scientific 
articles, regional checklists of ichthyofauna, studies of fishers' 
knowledge, reports from conservation organizations (e.g., IUCN), and 
museum records. We also used relevant data from long term datasets such 
as trawl surveys and regional fisheries databases, including the MEDITS 
survey program (International bottom trawl survey in the Mediterranean) 
and the International Council for the Exploration of the Sea (ICES) 
DATRAS (Baino et al., 2001; Bertrand et al., 2000, ICES 2016). The only 
publications that we found that concluded that both species were common 
throughout the northwestern Mediterranean were the IUCN assessments of 
both species (Notarbartolo di Sciara et al., 2007a; Notarbartolo di 
Sciara et al., 2007b) and ICES (2010). All three of these reports 
specifically discuss and provide references for both species once being 
common off the Balearic Islands and Sicily, which make up a small 
amount of the overall area of the northwestern Mediterranean. No 
references were cited in these three reports to provide evidence that 
R. rhinobatos or R. cemiculus were common in the remaining area of the 
northwestern Mediterranean.
    Comment 8: One commenter noted the lack of explanation about what 
we mean by ``available literature.''
    Response: A summary of how we compiled the information used in the 
status review was added to the second paragraph of the Scope and Intent 
of Present Document section of the status review.
    Comment 9: Regarding the Overutilization for Commercial, 
Recreational, Scientific, or Educational Purposes section of the status 
review, one commenter stated: ``Generally in this section you 
misunderstand the difference between science and fisheries data. 
Scientifically gathered data is preferable and you are required to use 
the best available SCIENCE. Fisheries catch and landing data are not 
the best possible type of data, are not scientifically gathered and 
have serious flaws which you ignore entirely.''
    Response: The commenter incorrectly restricts the information we 
are required to use. ESA Section 4(b)(1)(A) states: ``The Secretary 
shall make determinations required by [Section 4](a)(1) solely on the 
basis of the best scientific and commercial data available

[[Page 6312]]

to him . . .'' There is a paucity of scientific studies on both species 
range wide, including the almost complete lack of fisheries independent 
population data, a fact that is well documented in the status review 
and proposed rule. We agree that additional scientifically gathered 
data would greatly enhance our ability to accurately understand the 
status of both species. However, when analyzing the threat of 
commercial fisheries to these guitarfishes, fisheries data are relevant 
and valuable. Therefore, this information must be considered as a 
source of ``best scientific and commercial data available,'' regardless 
of flaws with these data, which are acknowledged and discussed 
throughout the status review.
    Comment 10: Also regarding the discussion of commercial 
overutilization in the Overutilization for Commercial, Recreational, 
Scientific, or Educational Purposes section of the status review, one 
commenter asks: ``why is only bycatch considered?''
    Response: All types of interactions with commercial and artisanal 
fisheries are considered and described in the status review, including 
bycatch from industrial and artisanal fishing and targeted fishing of 
both guitarfish species by artisanal fishers using gillnets, longlines, 
and beach based lines. The commenter may have missed the information by 
focusing on only one part of the discussion within the section.
    Comment 11: Regarding the passage in the status review: ``At the 
time of the 2007 publication of the IUCN report Overview of the 
Conservation Status of Cartilaginous Fishes (Chondrichthyans) in the 
Mediterranean Sea,'' by Cavanagh and Gibson (2007) there were six 
Mediterranean elasmobranchs affected by target fisheries . . . It is 
unclear if R. rhinobatos and R. cemiculus were two of the six targeted 
species referenced in this report'', one commenter asked how it can be 
unclear if the two Rhinobatos species were not part of the six species 
referred to in Cavanagh and Gibson (2007).
    Response: Cavanagh and Gibson (2007) did not discuss which 
elasmobranch species or groups were part of past or present targeted 
fisheries, except for using angelsharks (Squatina spp.) as an example 
of species that had become so rare they were no longer targeted. 
Therefore, it was not possible to determine which six Mediterranean 
elasmobranch species were considered to be affected by targeted 
fisheries by Cavanagh and Gibson (2007).
    Comment 12: One commenter stated that the discussion of 
elasmobranch landing trends in Egyptian fisheries in the status review 
is contradictory because it claims both increased and decreased 
landings in Egyptian fisheries.
    Response: In Egypt, an increase in effort across fisheries led to a 
decrease in overall fisheries landings, but an increase in the landings 
of, and demand for, elasmobranchs, which had previously been discarded. 
The commenter appears to have misunderstood the discussion in the 
status review. Elasmobranch landings increased because the landings of 
preferred, non-elasmobranch targets were decreasing. Thus, 
elasmobranchs, which were always caught but previously discarded, have 
been landed at a higher rate by fishers to offset the decreasing 
availability of other species.
    Comment 13: Regarding the discussion in the status review of the 
development of the shark (and other shark-like elasmobranchs) fin 
industry in the Atlantic, one commenter stated, ``you claim a need for 
increased effort CAUSES a need to maximize profits. This is quite [a] 
twist on economic theory which usually has causation go from the desire 
for profit as the starting point causing need for more effort . . .''
    Response: This conclusion was reached by Diop and Dossa (2011) who 
provide the most comprehensive report on shark fishing in West Africa 
available. As explained in the status review, as fisheries in easily 
accessible areas became overexploited, fishers had to travel farther to 
find fish. This increased effort raised their cost of doing business 
(e.g., fuel costs). Because storage capacity is limited on fishing 
vessels, and shark fins are more valuable than other products that 
would take up more space, shrinking profit margins that resulted from 
the need to increase effort contributed to the unsustainable shift to 
retaining a larger percentage of the highest value products (i.e., 
shark fins from many sharks) rather than utilizing the entire shark or 
less valuable species.
    Comment 14: One commenter stated that while we noted in the status 
review that large sharks, such as dusky sharks, are predators of 
Rhinobatos spp., we failed to discuss how the decline of dusky sharks 
would impact R. cemiculus and R. rhinobatos.
    Response: Based on our analysis, predation is not posing a threat 
to either guitarfish species and, with the exception of one sentence in 
Camhi et al. (2005), we found no additional information regarding 
predation on guitarfishes by any shark species. Additionally, dusky 
sharks were an example of a large shark that preys on these species, 
but not the only shark species to do so.
    Comment 15: One commenter stated that in the Commercial 
Overutilization in the Atlantic section of the status review ``you 
claim Rhinobatos is found in the highest numbers but you fail to say 
compared to what or part of what grouping.''
    Response: The sentence the commenter is referring to is a quote 
provided in a series of quotes of the qualitative descriptions of 
elasmobranch fisheries in West African nations by Diop and Dossa 
(2011). In all cases, Diop and Dossa (2011) were discussing landing of 
guitarfishes relative to other elasmobranchs. Additional text has been 
added to the Commercial Overutilization in the Atlantic section to 
clarify this point.
    Comment 16: One commenter pointed out the recent evidence 
suggesting a decline in the demand for shark fins.
    Response: A paragraph further discussing trends in demand for shark 
fins and meat, as well as the uncertainty related to how these shifts 
in demand are impacting both guitarfish species, has been added to the 
Commercial Overutilization in the Atlantic section of the status 
review.
    Comment 17: One commenter stated that we are required to consider 
the interaction of the ESA Section 4 (a)(1) factors but failed to do 
so.
    Response: The commenter is correct that we are required to consider 
the interaction between the ESA 4(a)(1) factors, and we did so. We 
present a discussion of the interactions among the threats and each 
species' demographic risks in the Extinction Risk Analysis sections of 
the status review for each species. However, because data on both 
species and their threats are generally lacking, a more detailed 
analysis of the interactions among the threat factors was not possible.
    Comment 18: One commenter stated that we incorrectly limited our 
analysis to present and future threats only and that we should have 
also considered past threats.
    Response: The ESA and the section 4 regulations require that we 
list a species if the species is endangered or threatened because of 
any of the five factors in ESA section 4 (a)(1). Included in our risk 
analysis is an assessment of the manifestation of past threats that 
have contributed to the species' current status.
    Comment 19: One commenter stated, ``Foreseeable future discussion 
is confounded and you just assert your timeline, you provide no 
evidence it is the best available. Assertions really arent [sic] 
facts.''

[[Page 6313]]

    Response: As discussed in Box 2: Defining Foreseeable Future in the 
status review, the foreseeable future for both guitarfish species (15-
20 years) is based on these species' life histories and the main 
threats each species faces. Given the relatively low productivity of 
these species, it will likely take more than one generation for these 
species to recover. 15-20 years corresponds to approximately three 
generations of R. cemiculus, which likely reproduces at a slower rate 
than R. rhinobatos. 15-20 years is also a reasonable period of time to 
project the continued threats of overutilization and inadequacy of 
existing regulations. Many of the regulations that protect these 
species have recently been adopted and are inadequately enforced. Given 
both species' reproductive life history traits, 15-20 years is a 
reasonable amount of time to foresee continued decline of both species 
should these regulations continue to be inadequate, which seems likely 
at this time. The commenter provided no information to invalidate any 
or all of the justification for our definition.
    Comment 20: One commenter pointed out that in our discussion of the 
increase in abundance of R. rhinobatos in the Tunis Northern and 
Southern Lagoon after restoration, we did not discuss the possibility 
that individuals could be migrating into the area without an increase 
in the overall population.
    Response: A sentence acknowledging that it is unknown if the 
increase of R. rhinobatos in the Tunis Lagoons is the result of an 
increasing population or simply individuals migrating into what has 
become suitable habitat has been added to the Demographic Risk Analysis 
section of the status review.
    Comment 21: One commenter stated that we missed the following 
references: Ali et al. (2008), Ambrose (2004), Bauchot (1987), 
Faruggia, Feretti, Lloris, and Rucabado (1998), McEachran and Capape 
(1984), Seck et al. (2004), Valadou (2003), and Whitehead et al. 
(1984).
    Response: In response to this comment, we conducted a search for 
the references listed that we were unaware of, which were Ambrose 
(2004), Valadou (2003), and Faruggia et al. (1998). Only an abstract 
for Ambrose. (2004) was available online, which contained no 
information about guitarfishes. Because we were not able to review this 
publication we have not included it in this analysis. We requested but 
have not received a copy of Valadou (2003), which is a master's 
dissertation that we cannot access online. We were also unable to find 
Faruggia et al. (1998) based on the information provided.
    We were already aware of Seck et al. (2004), Ali et al. (2008), 
Bauchot (1987), McEachran and Capape (1984), and Whitehead et al. 
(1984). Seck et al. (2004) was used and cited in our draft status 
review and proposed rule. Ali et al. (2008) was not available online or 
through interlibrary loan during the development of the status review, 
proposed rule, and final rule, and we reached out to one of the authors 
regarding this and another publication but have not received a 
response. Because this comment was submitted anonymously, we also could 
not contact the commenter with a request for a copy of this or other 
references. Bauchot (1987), McEachran and Capape (1984), and Whitehead 
et al. (1984) are identification guides that provide basic taxonomic 
and life history information consistent with information already 
included in the status review. Thus, these references provided no 
additional information that would affect our status review.
    Comment 22: One comment letter asserted that our decision to list 
R. rhinobatos and R. cemiculus as threatened is arbitrary and 
capricious because the commenter believes that both guitarfish species 
are ``in at least as bad a condition'' as three species of angelshark, 
Squatina aculeata, S. oculata, and S. squatina, which are listed as 
endangered under the ESA (81 FR 50394). This commenter provided the 
following reasons for this opinion: (1) These five species are all 
demersal elasmobranchs that share similar ranges, thus they face 
similar spatial threats; (2) The maximum depth that the guitarfishes 
occur in (100m) is shallower than the angelsharks' maximum depth 
(550m), thus the guitarfishes must be easier for humans to catch, 
increasing their vulnerability; (3) Guitarfishes have a faster 
reproductive cycle, smaller litter size, later age at maturity, and 
likely longer life span than the angelsharks, which makes the 
guitarfishes less resilient to overexploitation; (4) The guitarfishes, 
but not the angelsharks, are known to have an inshore migration for 
reproduction, putting the guitarfishes at a greater risk from human 
threats; (5) There is more evidence of population structuring for the 
guitarfishes than the angelsharks, resulting in smaller, isolated, less 
resilient populations; (6) There is higher commercial demand and fewer 
conservation efforts for the guitarfishes than the angelsharks; (7) 
Abundance data, including data from the Canary Islands and the 
northwest Mediterranean, support a worse status for the guitarfishes 
than the angelsharks, and; (8) The guitarfishes were likely in demand 
and serially exploited even earlier than the angelsharks.
    Response: While we acknowledge that all five species share some 
similarities in biology, ecology, and threats, we do not base decisions 
on whether or not one species should be listed as threatened or 
endangered solely on similarities in life history traits or 
circumstances with other listed species. We assess each species 
individually based on the best scientific and commercial information 
available, considering both the demographic risks facing the species as 
well as current and future threats that may affect the species' status. 
Data on all five species are lacking, but the best available 
information shows that all three angelsharks are extremely rare 
throughout most of their ranges, with evidence of declines in abundance 
and subsequent extirpations and range curtailment, while both 
guitarfishes are likely still somewhat abundant in relatively larger 
portions of their ranges, such as within portions of the southern and 
eastern Mediterranean and West Africa (Echwikhi et al., 2012; Golani 
2006; Ismen et al., 2007, Lteif 2015, M. Ducrocq, Parcs Gabon, pers. 
comm. to J. Shultz, NMFS, 21 June, 2016; Miller 2016, Saad et al., 
2006).
    To specifically address some of the commenter's points about 
guitarfish, regarding point (6), while both the guitarfish and the 
angelsharks face threats from commercial fishing, it is not appropriate 
to directly compare the fishing related threats these species face. For 
example, the fin trade has contributed to the decline of the 
guitarfishes but is not a direct threat to the angelsharks, while 
historical commercial fishing pressure on angelsharks has already made 
these species so rare that they can no longer support fisheries in most 
areas. Regarding points (5) and (7), the commenter provided no 
references to verify the assertions about the two guitarfishes' 
population structures or abundance throughout their respective ranges 
or the presence of guitarfish in the Canary Islands, so we are unable 
to determine the validity of any data upon which the commenter based 
these assertions. As such, without any new information to consider, we 
maintain our previous conclusion in the proposed rule that the two 
guitarfish species are likely to be in danger of extinction in the 
foreseeable future throughout their ranges and, thus, are threatened 
species under the ESA.
    Additionally, we also wish to clarify some of the information 
presented for

[[Page 6314]]

angelsharks, particularly in response to the commenter's points in (2) 
and (4). We note that while S. aculeata and S. oculata have maximum 
depths of up to 500 m and 560 m, respectively, S. aculeata can be found 
in depths as shallow as 30 m and S. oculata is more commonly found in 
depths between 50 m and 100 m. Squatina squatina is generally found in 
shallower water, from inshore areas out to the continental shelf in 
depths of 5 m to 150 m. This species is also thought to conduct inshore 
migrations in the summer, with reports of beachgoers being bitten by 
small (likely juvenile) angelsharks (suggesting inshore migration for 
reproduction). This information on these species, as well as additional 
information on the threats and status of the three angelsharks, can be 
found in the proposed (80 FR 40969; July 14, 2015) and final rules (81 
FR 50394; August 1, 2016) listing these species under the ESA, as well 
as the status review for these three species (Miller 2016), available 
on our Web site at www.nmfs.noaa.gov/pr/species/petition81.htm.
    Comment 23: The Embassy of Greece, through the Hellenic Ministry of 
Rural Development and Food, commented that Greece meets its obligations 
arising from international conventions, such as the Barcelona 
Convention, and is a party to the General Fisheries Commission of the 
Mediterranean (GFCM), the regional fisheries management organization 
whose convention area includes Mediterranean waters and the Black Sea. 
The measures adopted by the GFCM are incorporated into European Law. 
The Ministry specifically highlighted GFCM recommendation GFCM/36/3012/
3, which prohibits those elasmobranchs on Annex II of the Specially 
Protected Areas and Biological Diversity (SPA/BD) Protocol to the 
Barcelona Convention (which includes both guitarfish species) from 
being retained on board, transhipped, landed, transferred, stored, sold 
or displayed, or offered for sale. The Ministry noted that the species 
must be released, as far as possible, unharmed and alive, and that 
there is an obligation for owners of fishing vessels to record 
information related to fishing activities, including capture data, 
incidental catch, and releases and/or discards of species. The Ministry 
recently adopted and released Circular No. 4531/83795/20-07-2016 to 
inform all stakeholders of the provisions of the above protection 
measures.
    Response: We thank the Hellenic Ministry of Rural Development and 
Food for the comments and have updated the status review accordingly. 
We note that while these regulations will likely, to some extent, 
reduce the fishing related mortality to both guitarfish species, it 
does not appear that either species is common in Greek waters. 
Therefore we conclude that these regulatory mechanisms are unlikely to 
significantly decrease both Rhinobatos species' risks of extinction.
    Comment 24: The Lebanese Ministry of Agriculture, through the 
Embassy of Lebanon, commented that fishing both Rhinobatos species is 
prohibited in Lebanon by decision number 1045/1 issued on November 25, 
2014, based on GFCM recommendation GFCM/36/3012/3. Based on this 
decision, they welcomed our proposal to list both guitarfishes species 
as threatened under the ESA.
    Response: We thank the Lebanese Ministry of Agriculture for the 
comments and have updated the status review accordingly. We note that 
the information available to us (Lteif 2015) indicates that regulations 
related to these guitarfish species are not adequately enforced. 
However, we note that these conclusions were reached based on data that 
were collected up until approximately the time that decision number 
1045/1 was issued, so the enforcement of relevant regulations may now 
be effective. Given the uncertainty regarding the enforcement of these 
regulations, and the relatively small portion of both species' ranges 
that occur in Lebanese waters, we conclude that these regulatory 
mechanisms are unlikely to significantly decrease both Rhinobatos 
species' risks of extinction range wide.
    Comment 25: One commenter noted that in the Inadequacy of Existing 
Regulations section of the status review we did not mention relevant 
Turkish laws, species specific laws for Rhinobatos species in Banc 
d'Arguin National Park (Mauritania), and a ban on finning in Nigeria.
    Response: The commenter provided no references regarding any of 
these regulations. We found no information about Turkish laws relevant 
to guitarfishes or sharks and rays in general and the General Fisheries 
Commission for the Mediterranean National Legislation Database 
(available at: http://nationallegislation.gfcmsecretariat.org) lists no 
such relevant law. However, some additional information about general 
fisheries management efforts in Turkey, including vessel registrations, 
gear restrictions, and seasonal area closures has been added to the 
Regulatory Mechanisms in the Mediterranean section of the status 
review. Because these management efforts are not specific to 
guitarfish, and we have no information on how these efforts affect 
guitarfish in Turkey, this new information does not change our 
conclusion that current regulations are inadequate to protect either 
species.
    As discussed in the status review, fishing for all shark species, 
including guitarfishes, has been banned since 2003 in Banc d'Arguin 
National Park. Additional information on regulatory efforts from 1998 
to 2003 has been added to the Regulatory Mechanisms in the Atlantic 
section of the status review. This information provides context for how 
the current protective regulations were developed in Banc d' Arguin, 
which are currently adequately protecting both species in this small 
portion of their ranges, a fact that was acknowledged in the draft 
status review.
    The fact that Nigeria prohibits the dumping of shark carcasses at 
sea has also been added to the Regulatory Mechanisms in the Atlantic 
section. While this information augments our knowledge of regulations 
that may affect these species, we found no information on how this 
regulation is enforced and very little information on guitarfish in 
Nigeria in general. Thus, it does not change our conclusion that 
current regulations are inadequate to protect either species.
    Comment 26: One commenter strongly supported our proposed rule and 
encouraged us to finalize the our listing decision in a timely manner, 
incorporate comments and suggestions submitted during the comment 
period, and incorporate a full analysis of all the factors under 
section 4(a)(1) of the ESA.
    Response: We appreciate this comment. We have incorporated all 
substantive comments received into the status review and this final 
rule and fully analyzed the ESA section 4(a)(1) factors using the best 
available scientific and commercial information.

Summary of Changes From the Proposed Listing Rule

    We reviewed, and incorporated as appropriate, scientific data from 
references that were not previously included in the draft status review 
(Newell 2016) and proposed rule (81 FR 64094; September 19, 2016). We 
included the following references and communications, which, together 
with previously cited references, represent the best available 
scientific and commercial data on R. cemiculus and R. rhinobatos: 
Ambrose et al. (2005), Ateweberhan et al. (2012), Carla Jazzar, Embassy 
of Lebanon, pers. comm. to D. Wieting, NMFS (7 December, 2016), 
Caverivi[egrave]re and Andriamirado (1997), Coll (2010), D. Berces, 
University of Florida, pers. comm. to B. Newell,

[[Page 6315]]

NMFS, (14 November, 2016), Farrugio et al. (1993), Hellenic Ministry of 
Rural Development pers. comm. (2016), HSI (2016), ICES (2010), and OECD 
(undated). However, the information not previously included in the 
draft status review or proposed rule does not present significant new 
findings that change either of our proposed listing determinations. The 
updated status review (Newell 2016) is available at: www.nmfs.noaa.gov/pr/species/petition81.htm.

Status Review

    The status review for both guitarfish species was conducted by a 
NMFS biologist in the Office of Protected Resources. In order to 
complete the status review, we compiled information on the species' 
biology, ecology, life history, threats, and conservation status from 
information contained in the petition, our files, a comprehensive 
literature search, and consultation with experts. Prior to publication 
of the proposed rule, the status review was subjected to peer review. 
Peer reviewer comments are available at www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. This status review provides 
a thorough discussion of the life history, demographic risks, and 
threats to the two guitarfish species. We considered all identified 
threats, both individually and cumulatively, to determine whether these 
guitarfish species respond in a way that causes actual impacts at the 
species level. The collective condition of individual populations was 
also considered at the species level, according to the four viable 
population descriptors discussed above.

Summary of Factors Affecting the Two Guitarfish Species

    We considered whether any one or a combination of the five threat 
factors specified in section 4(a)(1) of the ESA contribute to the 
extinction risk of these species. The comments that we received on the 
proposed rule and the additional information that became available 
since the publication of the proposed rule did not change our 
conclusions regarding any of the section 4(a)(1) factors or their 
interactions for these species. Therefore, we incorporate herein all 
information, discussion, and conclusions on the summary of factors 
affecting the two guitarfish species in the status review (Newell 2016) 
and proposed rule (81 FR 64094; September 19, 2016).

Extinction Risk

    None of the information we received from public comment on the 
proposed rule affected our extinction risk evaluations of these two 
guitarfish species. Therefore, we incorporate herein all information, 
discussion, and conclusions, with the minor updates noted above, on the 
extinction risk of the two guitarfish species in the status review 
(Newell 2016) and proposed rule (81 FR 64094; September 19, 2016).

Protective Efforts

    As part of our evaluation of the status of the guitarfishes, we 
considered conservation efforts to protect each species and evaluated 
whether these conservation efforts are adequate to mitigate the 
existing threats to the point where extinction risk is significantly 
lowered and the species' status is improved. None of the information we 
received from public comment on the proposed rule affected our 
conclusions regarding conservation efforts to protect the two 
guitarfish species. We incorporate herein all information, discussion, 
and conclusions on the protective efforts for both guitarfish species 
in the status review (Newell 2016) and proposed rule (81 FR 64094; 
September 19, 2016).

Final Determination

    There is significant uncertainty regarding the status of the 
current populations of both R. rhinobatos and R. cemiculus, but both 
species may still be relatively common, although very likely below 
their historical population levels, in Tunisia, Israel, Lebanon, Syria, 
and southeastern Turkey. Based on this information, and the best 
available scientific and commercial information, as summarized here, in 
the proposed rule (81 FR 64094; September 19, 2016), and in Newell 
(2016), we find that neither Rhinobatos species is currently at high 
risk of extinction throughout their ranges. However, both species are 
at moderate risk of extinction. We assessed the ESA section 4(a)(1) 
factors and conclude that R. rhinobatos and R. cemiculus face ongoing 
threats of overutilization by fisheries and inadequate existing 
regulatory mechanisms throughout their ranges. Both species have also 
suffered a curtailment of a large portion of their historical ranges. 
These species' natural biological vulnerability to overexploitation and 
present demographic risks (declining abundance, decreasing size of 
reproductive individuals, and low productivity) are currently 
exacerbating the negative effects of these threats. Further, ongoing 
conservation efforts are not adequate to improve the status of these 
species. Thus, both species likely to become endangered throughout 
their ranges in the foreseeable future (15-20 years). Therefore, we are 
listing both species as threatened under the ESA.

Effects of Listing

    Conservation measures provided for species listed as threatened 
under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal 
agency requirements to consult with NMFS under section 7 of the ESA to 
ensure their actions do not jeopardize the species or result in adverse 
modification or destruction of critical habitat should it be designated 
(16 U.S.C. 1536); designation of critical habitat if prudent and 
determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 
U.S.C. 1538) through a rule promulgated under section 4(d). In 
addition, recognition of the species' plight through listing promotes 
conservation actions by Federal and State agencies, foreign entities, 
private groups, and individuals.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS 
regulations require Federal agencies to consult with us to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of listed species or destroy or 
adversely modify critical habitat. It is unlikely that the listing of 
these species under the ESA will increase the number of section 7 
consultations, because these species occur entirely outside of the 
United States and are unlikely to be affected by Federal actions.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 
1533(a)(3)(A)) requires that, to the extent prudent and determinable, 
critical habitat be designated concurrently with the listing of a 
species. However, critical habitat shall not be designated in foreign 
countries or other areas outside U.S. jurisdiction (50 CFR 424.12 (g)).
    The best available scientific and commercial data as discussed 
above identify the geographical areas occupied

[[Page 6316]]

by R. rhinobatos and R. cemiculus as being entirely outside U.S. 
jurisdiction, so we cannot designate occupied critical habitat for 
these species. We can designate critical habitat in areas in the United 
States currently unoccupied by the species if the area(s) are 
determined by the Secretary to be essential for the conservation of the 
species. The best available scientific and commercial information on 
these species does not indicate that U.S. waters provide any specific 
essential biological function for either of the Rhinobatos species. 
Therefore, based on the available information, we are not designating 
critical habitat for R. cemiculus or R. rhinobatos.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires NMFS to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. Because we are listing 
R. rhinobatos and R. cemiculus as threatened, no prohibitions of 
section 9(a)(1) of the ESA will apply to these species.

Protective Regulations Under Section 4(d) of the ESA

    We are listing R. rhinobatos and R. cemiculus as threatened under 
the ESA. In the case of threatened species, ESA section 4(d) leaves it 
to the Secretary's discretion whether, and to what extent, to extend 
the section 9(a) ``take'' prohibitions to the species, and authorizes 
us to issue regulations necessary and advisable for the conservation of 
the species. Thus, we have flexibility under section 4(d) to tailor 
protective regulations, taking into account the effectiveness of 
available conservation measures. The section 4(d) protective 
regulations may prohibit, with respect to threatened species, some or 
all of the acts which section 9(a) of the ESA prohibits with respect to 
endangered species. These section 9(a) prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Because neither species has ever occupied U.S. waters, and the United 
States has no known commercial or management interest in either 
species, we are not applying any section 9(a) prohibitions to either 
species at this time.

References

    A complete list of references used in this final rule is available 
upon request (see ADDRESSES).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule 
does not have significant federalism effects and that a federalism 
assessment is not required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: January 10, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, paragraph (e) add new entries for ``Guitarfish, 
blackchin'' and ``Guitarfish, common'', in alphabetical order by common 
name under the ``Fishes'' table subheading to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Species \1\
-------------------------------------------------------------------------------------------    Citation(s) for listing         Critical
                                                                    Description of listed          determination(s)            habitat        ESA rules
              Common name                    Scientific name               entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                       * * * * * *
Fishes
 
                                                                       * * * * * *
Guitarfish, blackchin.................  Rhinobatos cemciculus...  Entire species..........  82 FR [Insert Federal                      NA           NA.
                                                                                             Register page where the
                                                                                             document begins], January
                                                                                             19, 2017.
Guitarfish, common....................  Rhinobatos rhinobatos...  Entire species..........  82 FR [Insert Federal                      NA           NA.
                                                                                             Register page where the
                                                                                             document begins], January
                                                                                             19, 2017.
 
                                                                      * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).


[[Page 6317]]

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



                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                                                       6309

                                                                                                                                                                                                                        Maximum civil
                                                                      Law                                                 Citation                                          Type of violation                          monetary penalty

                                                                                                                                                            (2) Violations referred to in 16 U.S.C.                                 635
                                                                                                                                                              3373(a)(2).
                                                  (e) Marine Mammal Protection Act of                16 U.S.C. 1375 .....................................   Any violation ..........................................             25,409
                                                     1972.
                                                  (f) Recreational Hunting Safety Act of             16 U.S.C. 5202(b) .................................    (1) Violation involving use of force or                              16,169
                                                     1994.                                                                                                    violence or threatened use of force
                                                                                                                                                              or violence.
                                                                                                                                                            (2) Any other violation ...........................                   8,084
                                                  (g) Rhinoceros and Tiger Conservation              16 U.S.C. 5305a(b)(2) ...........................      Any violation ..........................................             17,688
                                                    Act of 1998.
                                                  (h) Wild Bird Conservation Act ..............      16 U.S.C. 4912(a)(1) .............................     (1) Violation of section 4910(a)(1), sec-                            42,618
                                                                                                                                                              tion 4910(a)(2), or any permit issued
                                                                                                                                                              under section 4911.
                                                                                                                                                            (2) Violation of section 4910(a)(3) ........                         20,456
                                                                                                                                                            (3) Any other violation ...........................                     853



                                                    Dated: January 10, 2017.                                 ADDRESSES:  Chief, Endangered Species                             Listing Species Under the Endangered
                                                  Michael J. Bean,                                           Division, NMFS Office of Protected                                Species Act
                                                  Principal Deputy Assistant Secretary for Fish              Resources (F/PR3), 1315 East West
                                                                                                                                                                                  We are responsible for determining
                                                  and Wildlife and Parks.                                    Highway, Silver Spring, MD 20910.
                                                                                                                                                                               whether species are threatened or
                                                  [FR Doc. 2017–00889 Filed 1–18–17; 8:45 am]                FOR FURTHER INFORMATION CONTACT:                                  endangered under the ESA (16 U.S.C.
                                                  BILLING CODE 4333–15–P                                     Brendan Newell or Marta Nammack                                   1531 et seq.). To make this
                                                                                                             NMFS, Office of Protected Resources                               determination, we consider first
                                                                                                             (OPR), (301) 427–8403.                                            whether a group of organisms
                                                  DEPARTMENT OF COMMERCE                                     SUPPLEMENTARY INFORMATION:                                        constitutes a ‘‘species’’ under the ESA,
                                                                                                                                                                               then whether the status of the species
                                                  National Oceanic and Atmospheric                           Background                                                        qualifies it for listing as either
                                                  Administration                                                On July 15, 2013, we received a                                threatened or endangered. Section 3 of
                                                                                                             petition from WildEarth Guardians to                              the ESA defines a ‘‘species’’ to include
                                                  50 CFR Part 223                                            list 81 marine species or subpopulations                          ‘‘any subspecies of fish or wildlife or
                                                                                                             as threatened or endangered under the                             plants, and any distinct population
                                                  [Docket No. 150211138–7024–02]                             ESA. This petition included species                               segment of any species of vertebrate fish
                                                                                                             from many different taxonomic groups,                             or wildlife which interbreeds when
                                                  RIN 0648–XD771
                                                                                                             and we prepared our 90-day findings in                            mature.’’
                                                  Endangered and Threatened Wildlife                         batches by taxonomic group. We found                                 Section 3 of the ESA defines an
                                                  and Plants; Final Rule To List Two                         that the petitioned actions may be                                endangered species as ‘‘any species
                                                  Guitarfishes as Threatened Under the                       warranted for 24 of the species and 3 of                          which is in danger of extinction
                                                  Endangered Species Act                                     the subpopulations and announced the                              throughout all or a significant portion of
                                                                                                             initiation of status reviews for each of                          its range’’ and a threatened species as
                                                  AGENCY:  National Marine Fisheries                         the 24 species and 3 subpopulations (78                           one ‘‘which is likely to become an
                                                  Service (NMFS), National Oceanic and                       FR 63941, October 25, 2013; 78 FR                                 endangered species within the
                                                  Atmospheric Administration (NOAA),                         66675, November 6, 2013; 78 FR 69376,                             foreseeable future throughout all or a
                                                  Commerce.                                                  November 19, 2013; 79 FR 9880,                                    significant portion of its range.’’ We
                                                  ACTION: Final rule.                                        February 21, 2014; and 79 FR 10104,                               interpret an ‘‘endangered species’’ to be
                                                                                                             February 24, 2014). On September 19,                              one that is presently in danger of
                                                  SUMMARY:    We, NMFS, issue a final rule                   2016, we published a proposed rule to                             extinction. A ‘‘threatened species,’’ on
                                                  to list two foreign marine guitarfish                      list the blackchin guitarfish (Rhinobatos                         the other hand, is not presently in
                                                  species under the Endangered Species                       cemiculus) and the common guitarfish                              danger of extinction, but is likely to
                                                  Act (ESA). We considered comments                          (Rhinobatos rhinobatos) as threated                               become so in the foreseeable future (that
                                                  submitted on the proposed listing rule                     species (81 FR 64094). We requested                               is, at a later time). In other words, the
                                                  and have determined that the blackchin                     public comment on information in the                              primary statutory difference between a
                                                  guitarfish (Rhinobatos cemiculus) and                      draft status review and proposed rule,                            threatened and endangered species is
                                                  common guitarfish (Rhinobatos                              and the comment period was open                                   the timing of when a species may be in
                                                  rhinobatos) warrant listing as threatened                  through November 18, 2016. This final                             danger of extinction, either presently
                                                  species. We will not designate critical                    rule provides a discussion of the                                 (endangered) or in the foreseeable future
                                                  habitat for either of these species                        information we received during the                                (threatened).
                                                  because the geographical areas occupied                    public comment period and our final                                  When we consider whether a species
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  by these species are entirely outside                      determination on the petition to list the                         might qualify as threatened under the
                                                  U.S. jurisdiction, and we have not                         blackchin guitarfish and the common                               ESA, we must consider the meaning of
                                                  identified any unoccupied areas within                     guitarfish under the ESA. The status of                           the term ‘‘foreseeable future.’’ It is
                                                  U.S. jurisdiction that are currently                       the findings and relevant Federal                                 appropriate to interpret ‘‘foreseeable
                                                  essential to the conservation of either of                 Register notices for the other 22 species                         future’’ as the horizon over which
                                                  these species.                                             and 3 subpopulations can be found on                              predictions about the conservation
                                                  DATES: This final rule is effective                        our Web site at www.nmfs.noaa.gov/pr/                             status of the species can be reasonably
                                                  February 21, 2017.                                         species/petition81.htm.                                           relied upon. The foreseeable future


                                             VerDate Sep<11>2014   20:34 Jan 18, 2017   Jkt 241001    PO 00000     Frm 00113     Fmt 4700     Sfmt 4700     E:\FR\FM\19JAR1.SGM          19JAR1


                                                  6310             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  considers the life history of the species,              mitigate the existing threats. Section                 (2007) in the discussion about growth
                                                  habitat characteristics, availability of                4(b)(1)(A) of the ESA requires the                     rates.
                                                  data, particular threats, ability to predict            Secretary, when making a listing                          Response: The k value from Ismen et
                                                  threats, and the reliability to forecast the            determination for a species, to take into              al. (2007) has been added to the
                                                  effects of these threats and future events              consideration those efforts, if any, being             discussion in the Reproduction and
                                                  on the status of the species under                      made by any State or foreign nation to                 Growth section of the status review.
                                                  consideration. Because a species may be                 protect the species.                                      Comment 4: One commenter claimed
                                                  susceptible to a variety of threats for                                                                        our analysis is biased because we
                                                                                                          Summary of Comments                                    discuss ‘‘conflict’’ in the literature
                                                  which different data are available, or
                                                  which operate across different time                       In response to our request for                       regarding conclusions researchers have
                                                  scales, the foreseeable future is not                   comments on the proposed rule, we                      reached about the two guitarfish
                                                  necessarily reducible to a particular                   received five comment letters. Two                     species’ reproductive potential and
                                                  number of years.                                        comment letters were from foreign                      growth rates. This commenter stated
                                                     Section 4(a)(1) of the ESA requires us               governments and clarified information                  that these different conclusions reached
                                                  to determine whether any species is                     about their relevant regulations. One                  by researchers are not conflicting
                                                  endangered or threatened due to any of                  comment letter was from an                             conclusions but are evidence of
                                                  the following factors: The present or                   environmental nonprofit organization                   intraspecies variation, which could be
                                                  threatened destruction, modification, or                supporting our proposed listing                        evidence of population structure. The
                                                  curtailment of its habitat or range;                    decision. Two comment letters were                     same party made multiple other
                                                  overutilization for commercial,                         submitted anonymously, each                            comments about regional variations in
                                                  recreational, scientific, or educational                challenging a number of our statements                 morphology and biology indicating
                                                  purposes; disease or predation; the                     or conclusions in the status review or                 population structure. An additional
                                                  inadequacy of existing regulatory                       proposed rule, generally without                       commenter also claimed that there is
                                                  mechanisms; or other natural or                         providing references or evidence that                  more evidence for population
                                                  manmade factors affecting its continued                 would allow us to investigate further.                 structuring in these guitarfishes than
                                                  existence. Under section (4)(b)(1)(A), we               One commenter also provided some                       three ESA-listed species of angelshark,
                                                  are also required to make listing                       editorial comments, which were                         Squatina aculeata, S. oculata, and S.
                                                  determinations based solely on the best                 incorporated in the status review as                   squatina. These three Squatina species
                                                  scientific and commercial data                          appropriate. Summaries of issues raised                were listed as endangered on August 1,
                                                  available, after conducting a review of                 by the public comments received and                    2016 (81 FR 50394). This commenter
                                                  the species’ status and after taking into               our responses are provided below, with                 provided no references to validate this
                                                  account efforts being made by any state                 references where appropriate.                          claim.
                                                  or foreign nation to protect the species.                 Comment 1: One commenter pointed                        Response: We disagree with the
                                                     In making a listing determination, we                out that R. cemiculus is also referred to              commenter’s implication that noting
                                                  first determine whether a petitioned                    in some of the literature by the                       conflicting conclusions from different
                                                  species meets the ESA definition of a                   taxonomic synonym Glaucostegus                         authors about a species’ life history
                                                  ‘‘species.’’ Next, using the best available             cemiculus.                                             implies bias. We acknowledge that
                                                  information gathered during the status                    Response: The fact that Glaucostegus                 variations in biology in different
                                                  review for the species, we complete a                   cemiculus is a synonym for R.                          portions of a species’ range could imply
                                                  status and extinction risk assessment. In               cemiculus has been added to the                        population structure. However, Lteif
                                                  assessing extinction risk for these two                 Taxonomy and Distinctive                               (2015) attributed these variations to
                                                  guitarfishes, we considered the                         Characteristics section of the status                  environmental differences throughout
                                                  demographic viability factors developed                 review. Although we did not include                    each species’ range (e.g., food
                                                  by McElhany et al. (2000). The approach                 this synonym in the draft status review                availability and water temperatures) or
                                                  of considering demographic risk factors                 this did not impact the development of                 the relatively small amount of data on
                                                  to help frame the consideration of                      the status review or proposed rule. We                 the species and differences in sampling
                                                  extinction risk has been used in many                   were aware of this synonym and                         approach. ICES (2010) stated that the
                                                  of our status reviews, including for                    searched for publications related to this              relationships between the
                                                  Pacific salmonids, Pacific hake, walleye                species using both Rhinobatos                          Mediterranean and Atlantic stocks of R.
                                                  pollock, Pacific cod, Puget Sound                       cemiculus and Glaucostegus cemiculus                   cemiculus and R. rhinobatos are
                                                  rockfishes, Pacific herring, scalloped                  while gathering information for the                    unclear. We found no other discussions
                                                  hammerhead sharks, and black abalone                    status review.                                         of population structure in the available
                                                  (see www.nmfs.noaa.gov/pr/species/ for                    Comment 2: One commenter                             information. Given the lack of
                                                  links to these reviews). In this approach,              disagreed with our description of the                  information, we could not reach
                                                  the collective condition of individual                  smallest reported length for a fish in a               conclusions about population structure.
                                                  populations is considered at the species                study as the ‘‘minimum total length                    Our status review presents the best
                                                  level according to four viable                          (TL),’’ stating that minimum TL is                     available information and notes where
                                                  population descriptors: abundance,                      always 0 mm for all animals.                           authors have reached different
                                                  growth rate/productivity, spatial                         Response: The word minimum was                       conclusions to accurately represent the
                                                  structure/connectivity, and diversity.                  used while discussing the smallest                     available information.
                                                  These viable population descriptors                     lengths ever reported for juveniles of                    Comment 5: One commenter asserted
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                                                  reflect concepts that are well-founded in               each species. We did not intend to                     that the discussion in the status review
                                                  conservation biology and that                           imply that the reported lengths were the               of both species’ preference for warmer
                                                  individually and collectively provide                   smallest possible lengths that the                     waters is moot because the only
                                                  strong indicators of extinction risk                    animals could be. We have revised the                  temperature data provided in the
                                                  (NMFS 2015).                                            status review to clarify this point.                   document is sea surface temperature
                                                     We then assess efforts being made to                   Comment 3: One commenter noted                       data, and as both species are demersal,
                                                  protect the species to determine if these               that we did not include the k value for                they live below the thermocline. This
                                                  conservation efforts are adequate to                    R. rhinobatos reported in Ismen et al.                 commenter also asserted that, in our


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6311

                                                  discussion about the threat of climate                  However, the data in question were                     related to both species, and guitarfishes
                                                  change in the status review, we failed to               collected across two different fisheries               in general, in all of the countries and
                                                  address specifically how changing                       (longline and gillnet) and in each case                seas that are considered part of either
                                                  bottom temperatures will affect the                     the data were collected over multiple                  species’ historical range. In the status
                                                  species.                                                months in both 2007 and 2008 years                     review, we considered and incorporated
                                                     Response: According to the best                      (Echwikhi et al., 2013; Echwikhi et al..               the best available information, which
                                                  available scientific information, both of               2012). Echwikhi et al. (2013) and                      included peer reviewed scientific
                                                  the guitarfishes are demersal species                   Echwikhi et al. (2012) discuss their                   articles, regional checklists of
                                                  that typically occur up to a maximum                    results in the context of the trends in                ichthyofauna, studies of fishers’
                                                  depth of 100m and spend at least a                      elasmobranch abundance declines in                     knowledge, reports from conservation
                                                  portion of their lives in shallow waters.               the region. An additional citation                     organizations (e.g., IUCN), and museum
                                                  The only information we found                           (Bradaı̈ et al., 2006) has been added to               records. We also used relevant data from
                                                  regarding how these species interact                    the status review and provides further                 long term datasets such as trawl surveys
                                                  with water temperature is that both                     indication that both species have been                 and regional fisheries databases,
                                                  species prefer warmer, subtropical                      and are commonly targeted and landed                   including the MEDITS survey program
                                                  waters (Capape and Zaouali 1994;                        in southern Tunisia. Given the high                    (International bottom trawl survey in
                                                  Corsini-Foka 2009; Edelist 2014). The                   proportion of these guitarfish species in              the Mediterranean) and the
                                                  discussion in the status review is about                the studied artisanal fisheries catches,               International Council for the
                                                  the role that temperature likely plays in               and the fact that these species are                    Exploration of the Sea (ICES) DATRAS
                                                  restricting many Mediterranean species                  known to be commonly targeted and                      (Baino et al., 2001; Bertrand et al., 2000,
                                                  to biogeographic ranges. While we                       landed in southern Tunisia, it is likely               ICES 2016). The only publications that
                                                  consider this information relevant to                   that the abundance trends for these                    we found that concluded that both
                                                  understanding both guitarfish species’                  species are similar to the overall trend               species were common throughout the
                                                  habitat and distribution, we explicitly                 of declining elasmobranch catches in                   northwestern Mediterranean were the
                                                  acknowledged in the draft status review                 southern Tunisia.                                      IUCN assessments of both species
                                                  that we found no information on how                        Comment 7: One commenter made                       (Notarbartolo di Sciara et al., 2007a;
                                                  any particular isotherm affects the                     several comments that there is no                      Notarbartolo di Sciara et al., 2007b) and
                                                  distribution and abundance of these                     evidence that R. rhinobatos and R.                     ICES (2010). All three of these reports
                                                  guitarfish species. We found no                         cemiculus were likely historically rare                specifically discuss and provide
                                                  discussion in the scientific literature                 throughout most of the northwestern                    references for both species once being
                                                  regarding how these species interact                    Mediterranean relative to other portions               common off the Balearic Islands and
                                                  with thermoclines, the depths of which                  of its range (e.g., the southern and                   Sicily, which make up a small amount
                                                  likely vary seasonally and regionally                   eastern Mediterranean). The same                       of the overall area of the northwestern
                                                  given the wide distribution of these                    commenter challenged our conclusion                    Mediterranean. No references were cited
                                                  species (Coll et al., 2010). Specifically               that both species have likely always                   in these three reports to provide
                                                  regarding climate change, Akyol and                     been rare in all parts of their Atlantic               evidence that R. rhinobatos or R.
                                                  Capapé (2014) and Rafrafi-Nouira et al.                ranges north of the Strait of Gibraltar.               cemiculus were common in the
                                                  (2015) both attributed shifts in R.                     This commenter asserted that we failed                 remaining area of the northwestern
                                                  cemiculus distribution to warming                       to include museum records and                          Mediterranean.
                                                  waters but did not discuss bottom                       anthropological literature, but the                       Comment 8: One commenter noted
                                                  temperatures or thermoclines. No                        commenter did not provide any                          the lack of explanation about what we
                                                  references were provided by the                         references.                                            mean by ‘‘available literature.’’
                                                  commenter to explain how both species                      Response: Our interpretation of the                    Response: A summary of how we
                                                  interact with thermoclines or invalidate                best available information is that R.                  compiled the information used in the
                                                  our interpretation that sea surface and                 rhinobatos and R. cemiculus were                       status review was added to the second
                                                  mixed layer temperature is likely                       present, but likely uncommon or rare                   paragraph of the Scope and Intent of
                                                  relevant to the distribution of these                   throughout most of the northwestern                    Present Document section of the status
                                                  subtropical species.                                    Mediterranean (including the waters off                review.
                                                     Comment 6: One commenter asserted                    Spain, the seas around Italy, and, in the                 Comment 9: Regarding the
                                                  that our assumption that both guitarfish                case of R. rhinobatos, the waters of                   Overutilization for Commercial,
                                                  species are likely mirroring the trend of               France), with the exception of the                     Recreational, Scientific, or Educational
                                                  decreasing elasmobranch and batoid                      waters around Sicily and the Balearic                  Purposes section of the status review,
                                                  (rays, skates, guitarfishes, etc.) landings             Islands. This interpretation is consistent             one commenter stated: ‘‘Generally in
                                                  in southern Tunisia, where the best                     with the conclusions reached in the best               this section you misunderstand the
                                                  available information shows that both                   available scientific literature (Akyol and             difference between science and fisheries
                                                  guitarfish species made up a high                       Capapé 2014; Capapé et al., 2006;                    data. Scientifically gathered data is
                                                  proportion of the total elasmobranch                    Capapé et al., 1975; Dul:iü et al., 2005;            preferable and you are required to use
                                                  catch in the longline and gillnet                       Psomadakis et al., 2009). In the parts of              the best available SCIENCE. Fisheries
                                                  fisheries over a 2-year period, is flawed,              their Atlantic ranges north of the Strait              catch and landing data are not the best
                                                  because, ‘‘A high percentage of one                     of Gibraltar, as stated in the status                  possible type of data, are not
                                                  species in a catch at one time says                     review, we found information that                      scientifically gathered and have serious
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                                                  nothing about the trend of that species                 indicates both species have been rare for              flaws which you ignore entirely.’’
                                                  over time as different species can be                   at least the last 45 years (ICES 2016),                   Response: The commenter incorrectly
                                                  targeted or caught with different                       and no information that indicates either               restricts the information we are required
                                                  methods or have different population                    species was common at any time in                      to use. ESA Section 4(b)(1)(A) states:
                                                  structures and sources and sinks.’’                     what is known to be the northern extent                ‘‘The Secretary shall make
                                                     Response: We agree that a high                       of their ranges.                                       determinations required by [Section
                                                  percentage of one species in a catch at                    To reach these conclusions we                       4](a)(1) solely on the basis of the best
                                                  one time does not indicate a trend.                     searched for data and publications                     scientific and commercial data available


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                                                  6312             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  to him . . .’’ There is a paucity of                    the status review is contradictory                     these species, but not the only shark
                                                  scientific studies on both species range                because it claims both increased and                   species to do so.
                                                  wide, including the almost complete                     decreased landings in Egyptian                            Comment 15: One commenter stated
                                                  lack of fisheries independent population                fisheries.                                             that in the Commercial Overutilization
                                                  data, a fact that is well documented in                    Response: In Egypt, an increase in                  in the Atlantic section of the status
                                                  the status review and proposed rule. We                 effort across fisheries led to a decrease              review ‘‘you claim Rhinobatos is found
                                                  agree that additional scientifically                    in overall fisheries landings, but an                  in the highest numbers but you fail to
                                                  gathered data would greatly enhance                     increase in the landings of, and demand                say compared to what or part of what
                                                  our ability to accurately understand the                for, elasmobranchs, which had                          grouping.’’
                                                  status of both species. However, when                   previously been discarded. The                            Response: The sentence the
                                                  analyzing the threat of commercial                      commenter appears to have                              commenter is referring to is a quote
                                                  fisheries to these guitarfishes, fisheries              misunderstood the discussion in the                    provided in a series of quotes of the
                                                  data are relevant and valuable.                         status review. Elasmobranch landings                   qualitative descriptions of elasmobranch
                                                  Therefore, this information must be                     increased because the landings of                      fisheries in West African nations by
                                                  considered as a source of ‘‘best scientific             preferred, non-elasmobranch targets                    Diop and Dossa (2011). In all cases,
                                                  and commercial data available,’’                        were decreasing. Thus, elasmobranchs,                  Diop and Dossa (2011) were discussing
                                                  regardless of flaws with these data,                    which were always caught but                           landing of guitarfishes relative to other
                                                  which are acknowledged and discussed                    previously discarded, have been landed                 elasmobranchs. Additional text has been
                                                  throughout the status review.                           at a higher rate by fishers to offset the              added to the Commercial
                                                     Comment 10: Also regarding the                       decreasing availability of other species.              Overutilization in the Atlantic section to
                                                  discussion of commercial                                   Comment 13: Regarding the                           clarify this point.
                                                  overutilization in the Overutilization for              discussion in the status review of the                    Comment 16: One commenter pointed
                                                  Commercial, Recreational, Scientific, or                development of the shark (and other                    out the recent evidence suggesting a
                                                  Educational Purposes section of the                     shark-like elasmobranchs) fin industry                 decline in the demand for shark fins.
                                                  status review, one commenter asks:                                                                                Response: A paragraph further
                                                                                                          in the Atlantic, one commenter stated,
                                                  ‘‘why is only bycatch considered?’’                                                                            discussing trends in demand for shark
                                                                                                          ‘‘you claim a need for increased effort
                                                     Response: All types of interactions                                                                         fins and meat, as well as the uncertainty
                                                                                                          CAUSES a need to maximize profits.
                                                  with commercial and artisanal fisheries                                                                        related to how these shifts in demand
                                                                                                          This is quite [a] twist on economic
                                                  are considered and described in the                                                                            are impacting both guitarfish species,
                                                                                                          theory which usually has causation go
                                                  status review, including bycatch from                                                                          has been added to the Commercial
                                                                                                          from the desire for profit as the starting
                                                  industrial and artisanal fishing and                                                                           Overutilization in the Atlantic section of
                                                                                                          point causing need for more effort . . .’’
                                                  targeted fishing of both guitarfish                                                                            the status review.
                                                  species by artisanal fishers using                         Response: This conclusion was                          Comment 17: One commenter stated
                                                  gillnets, longlines, and beach based                    reached by Diop and Dossa (2011) who                   that we are required to consider the
                                                  lines. The commenter may have missed                    provide the most comprehensive report                  interaction of the ESA Section 4 (a)(1)
                                                  the information by focusing on only one                 on shark fishing in West Africa                        factors but failed to do so.
                                                  part of the discussion within the                       available. As explained in the status                     Response: The commenter is correct
                                                  section.                                                review, as fisheries in easily accessible              that we are required to consider the
                                                     Comment 11: Regarding the passage                    areas became overexploited, fishers had                interaction between the ESA 4(a)(1)
                                                  in the status review: ‘‘At the time of the              to travel farther to find fish. This                   factors, and we did so. We present a
                                                  2007 publication of the IUCN report                     increased effort raised their cost of                  discussion of the interactions among the
                                                  Overview of the Conservation Status of                  doing business (e.g., fuel costs). Because             threats and each species’ demographic
                                                  Cartilaginous Fishes (Chondrichthyans)                  storage capacity is limited on fishing                 risks in the Extinction Risk Analysis
                                                  in the Mediterranean Sea,’’ by Cavanagh                 vessels, and shark fins are more                       sections of the status review for each
                                                  and Gibson (2007) there were six                        valuable than other products that would                species. However, because data on both
                                                  Mediterranean elasmobranchs affected                    take up more space, shrinking profit                   species and their threats are generally
                                                  by target fisheries . . . It is unclear if R.           margins that resulted from the need to                 lacking, a more detailed analysis of the
                                                  rhinobatos and R. cemiculus were two                    increase effort contributed to the                     interactions among the threat factors
                                                  of the six targeted species referenced in               unsustainable shift to retaining a larger              was not possible.
                                                  this report’’, one commenter asked how                  percentage of the highest value products                  Comment 18: One commenter stated
                                                  it can be unclear if the two Rhinobatos                 (i.e., shark fins from many sharks) rather             that we incorrectly limited our analysis
                                                  species were not part of the six species                than utilizing the entire shark or less                to present and future threats only and
                                                  referred to in Cavanagh and Gibson                      valuable species.                                      that we should have also considered
                                                  (2007).                                                    Comment 14: One commenter stated                    past threats.
                                                     Response: Cavanagh and Gibson                        that while we noted in the status review                  Response: The ESA and the section 4
                                                  (2007) did not discuss which                            that large sharks, such as dusky sharks,               regulations require that we list a species
                                                  elasmobranch species or groups were                     are predators of Rhinobatos spp., we                   if the species is endangered or
                                                  part of past or present targeted fisheries,             failed to discuss how the decline of                   threatened because of any of the five
                                                  except for using angelsharks (Squatina                  dusky sharks would impact R.                           factors in ESA section 4 (a)(1). Included
                                                  spp.) as an example of species that had                 cemiculus and R. rhinobatos.                           in our risk analysis is an assessment of
                                                  become so rare they were no longer                         Response: Based on our analysis,                    the manifestation of past threats that
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                                                  targeted. Therefore, it was not possible                predation is not posing a threat to either             have contributed to the species’ current
                                                  to determine which six Mediterranean                    guitarfish species and, with the                       status.
                                                  elasmobranch species were considered                    exception of one sentence in Camhi et                     Comment 19: One commenter stated,
                                                  to be affected by targeted fisheries by                 al. (2005), we found no additional                     ‘‘Foreseeable future discussion is
                                                  Cavanagh and Gibson (2007).                             information regarding predation on                     confounded and you just assert your
                                                     Comment 12: One commenter stated                     guitarfishes by any shark species.                     timeline, you provide no evidence it is
                                                  that the discussion of elasmobranch                     Additionally, dusky sharks were an                     the best available. Assertions really
                                                  landing trends in Egyptian fisheries in                 example of a large shark that preys on                 arent [sic] facts.’’


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6313

                                                     Response: As discussed in Box 2:                     Faruggia et al. (1998) based on the                    for the guitarfishes than the angelsharks,
                                                  Defining Foreseeable Future in the                      information provided.                                  and; (8) The guitarfishes were likely in
                                                  status review, the foreseeable future for                  We were already aware of Seck et al.                demand and serially exploited even
                                                  both guitarfish species (15–20 years) is                (2004), Ali et al. (2008), Bauchot (1987),             earlier than the angelsharks.
                                                  based on these species’ life histories and              McEachran and Capape (1984), and                          Response: While we acknowledge that
                                                  the main threats each species faces.                    Whitehead et al. (1984). Seck et al.                   all five species share some similarities
                                                  Given the relatively low productivity of                (2004) was used and cited in our draft                 in biology, ecology, and threats, we do
                                                  these species, it will likely take more                 status review and proposed rule. Ali et                not base decisions on whether or not
                                                  than one generation for these species to                al. (2008) was not available online or                 one species should be listed as
                                                  recover. 15–20 years corresponds to                     through interlibrary loan during the                   threatened or endangered solely on
                                                  approximately three generations of R.                   development of the status review,                      similarities in life history traits or
                                                  cemiculus, which likely reproduces at a                 proposed rule, and final rule, and we                  circumstances with other listed species.
                                                  slower rate than R. rhinobatos. 15–20                   reached out to one of the authors                      We assess each species individually
                                                  years is also a reasonable period of time               regarding this and another publication                 based on the best scientific and
                                                  to project the continued threats of                     but have not received a response.                      commercial information available,
                                                  overutilization and inadequacy of                       Because this comment was submitted                     considering both the demographic risks
                                                  existing regulations. Many of the                       anonymously, we also could not contact                 facing the species as well as current and
                                                  regulations that protect these species                  the commenter with a request for a copy                future threats that may affect the
                                                  have recently been adopted and are                      of this or other references. Bauchot                   species’ status. Data on all five species
                                                  inadequately enforced. Given both                       (1987), McEachran and Capape (1984),                   are lacking, but the best available
                                                  species’ reproductive life history traits,              and Whitehead et al. (1984) are                        information shows that all three
                                                  15–20 years is a reasonable amount of                   identification guides that provide basic               angelsharks are extremely rare
                                                  time to foresee continued decline of                    taxonomic and life history information                 throughout most of their ranges, with
                                                  both species should these regulations                   consistent with information already                    evidence of declines in abundance and
                                                  continue to be inadequate, which seems                  included in the status review. Thus,                   subsequent extirpations and range
                                                  likely at this time. The commenter                      these references provided no additional                curtailment, while both guitarfishes are
                                                  provided no information to invalidate                   information that would affect our status               likely still somewhat abundant in
                                                  any or all of the justification for our                 review.                                                relatively larger portions of their ranges,
                                                  definition.                                                Comment 22: One comment letter                      such as within portions of the southern
                                                                                                          asserted that our decision to list R.                  and eastern Mediterranean and West
                                                     Comment 20: One commenter pointed
                                                                                                          rhinobatos and R. cemiculus as                         Africa (Echwikhi et al., 2012; Golani
                                                  out that in our discussion of the
                                                                                                          threatened is arbitrary and capricious                 2006; Ismen et al., 2007, Lteif 2015, M.
                                                  increase in abundance of R. rhinobatos
                                                                                                          because the commenter believes that                    Ducrocq, Parcs Gabon, pers. comm. to J.
                                                  in the Tunis Northern and Southern
                                                                                                          both guitarfish species are ‘‘in at least as           Shultz, NMFS, 21 June, 2016; Miller
                                                  Lagoon after restoration, we did not
                                                                                                          bad a condition’’ as three species of                  2016, Saad et al., 2006).
                                                  discuss the possibility that individuals
                                                                                                          angelshark, Squatina aculeata, S.                         To specifically address some of the
                                                  could be migrating into the area without                oculata, and S. squatina, which are                    commenter’s points about guitarfish,
                                                  an increase in the overall population.                  listed as endangered under the ESA (81                 regarding point (6), while both the
                                                     Response: A sentence acknowledging                   FR 50394). This commenter provided                     guitarfish and the angelsharks face
                                                  that it is unknown if the increase of R.                the following reasons for this opinion:                threats from commercial fishing, it is
                                                  rhinobatos in the Tunis Lagoons is the                  (1) These five species are all demersal                not appropriate to directly compare the
                                                  result of an increasing population or                   elasmobranchs that share similar ranges,               fishing related threats these species face.
                                                  simply individuals migrating into what                  thus they face similar spatial threats; (2)            For example, the fin trade has
                                                  has become suitable habitat has been                    The maximum depth that the                             contributed to the decline of the
                                                  added to the Demographic Risk Analysis                  guitarfishes occur in (100m) is                        guitarfishes but is not a direct threat to
                                                  section of the status review.                           shallower than the angelsharks’                        the angelsharks, while historical
                                                     Comment 21: One commenter stated                     maximum depth (550m), thus the                         commercial fishing pressure on
                                                  that we missed the following references:                guitarfishes must be easier for humans                 angelsharks has already made these
                                                  Ali et al. (2008), Ambrose (2004),                      to catch, increasing their vulnerability;              species so rare that they can no longer
                                                  Bauchot (1987), Faruggia, Feretti, Lloris,              (3) Guitarfishes have a faster                         support fisheries in most areas.
                                                  and Rucabado (1998), McEachran and                      reproductive cycle, smaller litter size,               Regarding points (5) and (7), the
                                                  Capape (1984), Seck et al. (2004),                      later age at maturity, and likely longer               commenter provided no references to
                                                  Valadou (2003), and Whitehead et al.                    life span than the angelsharks, which                  verify the assertions about the two
                                                  (1984).                                                 makes the guitarfishes less resilient to               guitarfishes’ population structures or
                                                     Response: In response to this                        overexploitation; (4) The guitarfishes,                abundance throughout their respective
                                                  comment, we conducted a search for the                  but not the angelsharks, are known to                  ranges or the presence of guitarfish in
                                                  references listed that we were unaware                  have an inshore migration for                          the Canary Islands, so we are unable to
                                                  of, which were Ambrose (2004),                          reproduction, putting the guitarfishes at              determine the validity of any data upon
                                                  Valadou (2003), and Faruggia et al.                     a greater risk from human threats; (5)                 which the commenter based these
                                                  (1998). Only an abstract for Ambrose.                   There is more evidence of population                   assertions. As such, without any new
                                                  (2004) was available online, which                      structuring for the guitarfishes than the              information to consider, we maintain
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  contained no information about                          angelsharks, resulting in smaller,                     our previous conclusion in the proposed
                                                  guitarfishes. Because we were not able                  isolated, less resilient populations; (6)              rule that the two guitarfish species are
                                                  to review this publication we have not                  There is higher commercial demand and                  likely to be in danger of extinction in
                                                  included it in this analysis. We                        fewer conservation efforts for the                     the foreseeable future throughout their
                                                  requested but have not received a copy                  guitarfishes than the angelsharks; (7)                 ranges and, thus, are threatened species
                                                  of Valadou (2003), which is a master’s                  Abundance data, including data from                    under the ESA.
                                                  dissertation that we cannot access                      the Canary Islands and the northwest                      Additionally, we also wish to clarify
                                                  online. We were also unable to find                     Mediterranean, support a worse status                  some of the information presented for


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                                                  6314             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  angelsharks, particularly in response to                will likely, to some extent, reduce the                information on how these efforts affect
                                                  the commenter’s points in (2) and (4).                  fishing related mortality to both                      guitarfish in Turkey, this new
                                                  We note that while S. aculeata and S.                   guitarfish species, it does not appear                 information does not change our
                                                  oculata have maximum depths of up to                    that either species is common in Greek                 conclusion that current regulations are
                                                  500 m and 560 m, respectively, S.                       waters. Therefore we conclude that                     inadequate to protect either species.
                                                  aculeata can be found in depths as                      these regulatory mechanisms are                           As discussed in the status review,
                                                  shallow as 30 m and S. oculata is more                  unlikely to significantly decrease both                fishing for all shark species, including
                                                  commonly found in depths between 50                     Rhinobatos species’ risks of extinction.               guitarfishes, has been banned since
                                                  m and 100 m. Squatina squatina is                          Comment 24: The Lebanese Ministry                   2003 in Banc d’Arguin National Park.
                                                  generally found in shallower water,                     of Agriculture, through the Embassy of                 Additional information on regulatory
                                                  from inshore areas out to the continental               Lebanon, commented that fishing both                   efforts from 1998 to 2003 has been
                                                  shelf in depths of 5 m to 150 m. This                   Rhinobatos species is prohibited in                    added to the Regulatory Mechanisms in
                                                  species is also thought to conduct                      Lebanon by decision number 1045/1                      the Atlantic section of the status review.
                                                  inshore migrations in the summer, with                  issued on November 25, 2014, based on                  This information provides context for
                                                  reports of beachgoers being bitten by                   GFCM recommendation GFCM/36/                           how the current protective regulations
                                                  small (likely juvenile) angelsharks                     3012/3. Based on this decision, they                   were developed in Banc d’ Arguin,
                                                  (suggesting inshore migration for                       welcomed our proposal to list both                     which are currently adequately
                                                  reproduction). This information on                      guitarfishes species as threatened under               protecting both species in this small
                                                  these species, as well as additional                    the ESA.                                               portion of their ranges, a fact that was
                                                  information on the threats and status of                   Response: We thank the Lebanese                     acknowledged in the draft status review.
                                                  the three angelsharks, can be found in                  Ministry of Agriculture for the                           The fact that Nigeria prohibits the
                                                  the proposed (80 FR 40969; July 14,                     comments and have updated the status                   dumping of shark carcasses at sea has
                                                  2015) and final rules (81 FR 50394;                     review accordingly. We note that the                   also been added to the Regulatory
                                                  August 1, 2016) listing these species                   information available to us (Lteif 2015)               Mechanisms in the Atlantic section.
                                                  under the ESA, as well as the status                    indicates that regulations related to                  While this information augments our
                                                  review for these three species (Miller                  these guitarfish species are not                       knowledge of regulations that may affect
                                                  2016), available on our Web site at                     adequately enforced. However, we note                  these species, we found no information
                                                  www.nmfs.noaa.gov/pr/species/                           that these conclusions were reached                    on how this regulation is enforced and
                                                  petition81.htm.                                         based on data that were collected up                   very little information on guitarfish in
                                                     Comment 23: The Embassy of Greece,                   until approximately the time that                      Nigeria in general. Thus, it does not
                                                  through the Hellenic Ministry of Rural                  decision number 1045/1 was issued, so                  change our conclusion that current
                                                  Development and Food, commented                         the enforcement of relevant regulations                regulations are inadequate to protect
                                                  that Greece meets its obligations arising               may now be effective. Given the                        either species.
                                                  from international conventions, such as                 uncertainty regarding the enforcement                     Comment 26: One commenter
                                                  the Barcelona Convention, and is a party                of these regulations, and the relatively               strongly supported our proposed rule
                                                  to the General Fisheries Commission of                  small portion of both species’ ranges                  and encouraged us to finalize the our
                                                  the Mediterranean (GFCM), the regional                  that occur in Lebanese waters, we                      listing decision in a timely manner,
                                                  fisheries management organization                       conclude that these regulatory                         incorporate comments and suggestions
                                                  whose convention area includes                          mechanisms are unlikely to significantly               submitted during the comment period,
                                                  Mediterranean waters and the Black                      decrease both Rhinobatos species’ risks                and incorporate a full analysis of all the
                                                  Sea. The measures adopted by the                        of extinction range wide.                              factors under section 4(a)(1) of the ESA.
                                                  GFCM are incorporated into European                        Comment 25: One commenter noted                        Response: We appreciate this
                                                  Law. The Ministry specifically                          that in the Inadequacy of Existing                     comment. We have incorporated all
                                                  highlighted GFCM recommendation                         Regulations section of the status review               substantive comments received into the
                                                  GFCM/36/3012/3, which prohibits those                   we did not mention relevant Turkish                    status review and this final rule and
                                                  elasmobranchs on Annex II of the                        laws, species specific laws for                        fully analyzed the ESA section 4(a)(1)
                                                  Specially Protected Areas and Biological                Rhinobatos species in Banc d’Arguin                    factors using the best available scientific
                                                  Diversity (SPA/BD) Protocol to the                      National Park (Mauritania), and a ban                  and commercial information.
                                                  Barcelona Convention (which includes                    on finning in Nigeria.
                                                                                                             Response: The commenter provided                    Summary of Changes From the
                                                  both guitarfish species) from being                                                                            Proposed Listing Rule
                                                  retained on board, transhipped, landed,                 no references regarding any of these
                                                  transferred, stored, sold or displayed, or              regulations. We found no information                     We reviewed, and incorporated as
                                                  offered for sale. The Ministry noted that               about Turkish laws relevant to                         appropriate, scientific data from
                                                  the species must be released, as far as                 guitarfishes or sharks and rays in                     references that were not previously
                                                  possible, unharmed and alive, and that                  general and the General Fisheries                      included in the draft status review
                                                  there is an obligation for owners of                    Commission for the Mediterranean                       (Newell 2016) and proposed rule (81 FR
                                                  fishing vessels to record information                   National Legislation Database (available               64094; September 19, 2016). We
                                                  related to fishing activities, including                at: http://nationallegislation.gfcm                    included the following references and
                                                  capture data, incidental catch, and                     secretariat.org) lists no such relevant                communications, which, together with
                                                  releases and/or discards of species. The                law. However, some additional                          previously cited references, represent
                                                  Ministry recently adopted and released                  information about general fisheries                    the best available scientific and
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  Circular No. 4531/83795/20–07–2016 to                   management efforts in Turkey,                          commercial data on R. cemiculus and R.
                                                  inform all stakeholders of the provisions               including vessel registrations, gear                   rhinobatos: Ambrose et al. (2005),
                                                  of the above protection measures.                       restrictions, and seasonal area closures               Ateweberhan et al. (2012), Carla Jazzar,
                                                     Response: We thank the Hellenic                      has been added to the Regulatory                       Embassy of Lebanon, pers. comm. to D.
                                                  Ministry of Rural Development and                       Mechanisms in the Mediterranean                        Wieting, NMFS (7 December, 2016),
                                                  Food for the comments and have                          section of the status review. Because                  Caverivière and Andriamirado (1997),
                                                  updated the status review accordingly.                  these management efforts are not                       Coll (2010), D. Berces, University of
                                                  We note that while these regulations                    specific to guitarfish, and we have no                 Florida, pers. comm. to B. Newell,


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           6315

                                                  NMFS, (14 November, 2016), Farrugio et                  evaluations of these two guitarfish                    years). Therefore, we are listing both
                                                  al. (1993), Hellenic Ministry of Rural                  species. Therefore, we incorporate                     species as threatened under the ESA.
                                                  Development pers. comm. (2016), HSI                     herein all information, discussion, and
                                                                                                                                                                 Effects of Listing
                                                  (2016), ICES (2010), and OECD                           conclusions, with the minor updates
                                                  (undated). However, the information not                 noted above, on the extinction risk of                   Conservation measures provided for
                                                  previously included in the draft status                 the two guitarfish species in the status               species listed as threatened under the
                                                  review or proposed rule does not                        review (Newell 2016) and proposed rule                 ESA include recovery actions (16 U.S.C.
                                                  present significant new findings that                   (81 FR 64094; September 19, 2016).                     1533(f)); Federal agency requirements to
                                                  change either of our proposed listing                                                                          consult with NMFS under section 7 of
                                                                                                          Protective Efforts                                     the ESA to ensure their actions do not
                                                  determinations. The updated status
                                                  review (Newell 2016) is available at:                     As part of our evaluation of the status              jeopardize the species or result in
                                                  www.nmfs.noaa.gov/pr/species/                           of the guitarfishes, we considered                     adverse modification or destruction of
                                                  petition81.htm.                                         conservation efforts to protect each                   critical habitat should it be designated
                                                                                                          species and evaluated whether these                    (16 U.S.C. 1536); designation of critical
                                                  Status Review                                           conservation efforts are adequate to                   habitat if prudent and determinable (16
                                                     The status review for both guitarfish                mitigate the existing threats to the point             U.S.C. 1533(a)(3)(A)); and prohibitions
                                                  species was conducted by a NMFS                         where extinction risk is significantly                 on taking (16 U.S.C. 1538) through a
                                                  biologist in the Office of Protected                    lowered and the species’ status is                     rule promulgated under section 4(d). In
                                                  Resources. In order to complete the                     improved. None of the information we                   addition, recognition of the species’
                                                  status review, we compiled information                  received from public comment on the                    plight through listing promotes
                                                  on the species’ biology, ecology, life                  proposed rule affected our conclusions                 conservation actions by Federal and
                                                  history, threats, and conservation status               regarding conservation efforts to protect              State agencies, foreign entities, private
                                                  from information contained in the                       the two guitarfish species. We                         groups, and individuals.
                                                  petition, our files, a comprehensive                    incorporate herein all information,
                                                  literature search, and consultation with                discussion, and conclusions on the                     Identifying Section 7 Consultation
                                                  experts. Prior to publication of the                    protective efforts for both guitarfish                 Requirements
                                                  proposed rule, the status review was                    species in the status review (Newell                      Section 7(a)(2) (16 U.S.C. 1536(a)(2))
                                                  subjected to peer review. Peer reviewer                 2016) and proposed rule (81 FR 64094;                  of the ESA and NMFS/USFWS
                                                  comments are available at                               September 19, 2016).                                   regulations require Federal agencies to
                                                  www.cio.noaa.gov/services_programs/                                                                            consult with us to ensure that activities
                                                                                                          Final Determination                                    they authorize, fund, or carry out are not
                                                  prplans/PRsummaries.html. This status
                                                  review provides a thorough discussion                      There is significant uncertainty                    likely to jeopardize the continued
                                                  of the life history, demographic risks,                 regarding the status of the current                    existence of listed species or destroy or
                                                  and threats to the two guitarfish species.              populations of both R. rhinobatos and R.               adversely modify critical habitat. It is
                                                  We considered all identified threats,                   cemiculus, but both species may still be               unlikely that the listing of these species
                                                  both individually and cumulatively, to                  relatively common, although very likely                under the ESA will increase the number
                                                  determine whether these guitarfish                      below their historical population levels,              of section 7 consultations, because these
                                                  species respond in a way that causes                    in Tunisia, Israel, Lebanon, Syria, and                species occur entirely outside of the
                                                  actual impacts at the species level. The                southeastern Turkey. Based on this                     United States and are unlikely to be
                                                  collective condition of individual                      information, and the best available                    affected by Federal actions.
                                                  populations was also considered at the                  scientific and commercial information,
                                                                                                          as summarized here, in the proposed                    Critical Habitat
                                                  species level, according to the four
                                                  viable population descriptors discussed                 rule (81 FR 64094; September 19, 2016),                   Critical habitat is defined in section 3
                                                  above.                                                  and in Newell (2016), we find that                     of the ESA (16 U.S.C. 1532(5)) as: (1)
                                                                                                          neither Rhinobatos species is currently                The specific areas within the
                                                  Summary of Factors Affecting the Two                    at high risk of extinction throughout                  geographical area occupied by a species,
                                                  Guitarfish Species                                      their ranges. However, both species are                at the time it is listed in accordance
                                                    We considered whether any one or a                    at moderate risk of extinction. We                     with the ESA, on which are found those
                                                  combination of the five threat factors                  assessed the ESA section 4(a)(1) factors               physical or biological features (a)
                                                  specified in section 4(a)(1) of the ESA                 and conclude that R. rhinobatos and R.                 essential to the conservation of the
                                                  contribute to the extinction risk of these              cemiculus face ongoing threats of                      species and (b) that may require special
                                                  species. The comments that we received                  overutilization by fisheries and                       management considerations or
                                                  on the proposed rule and the additional                 inadequate existing regulatory                         protection; and (2) specific areas outside
                                                  information that became available since                 mechanisms throughout their ranges.                    the geographical area occupied by a
                                                  the publication of the proposed rule did                Both species have also suffered a                      species at the time it is listed upon a
                                                  not change our conclusions regarding                    curtailment of a large portion of their                determination that such areas are
                                                  any of the section 4(a)(1) factors or their             historical ranges. These species’ natural              essential for the conservation of the
                                                  interactions for these species. Therefore,              biological vulnerability to                            species. Section 4(a)(3)(A) of the ESA
                                                  we incorporate herein all information,                  overexploitation and present                           (16 U.S.C. 1533(a)(3)(A)) requires that,
                                                  discussion, and conclusions on the                      demographic risks (declining                           to the extent prudent and determinable,
                                                  summary of factors affecting the two                    abundance, decreasing size of                          critical habitat be designated
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  guitarfish species in the status review                 reproductive individuals, and low                      concurrently with the listing of a
                                                  (Newell 2016) and proposed rule (81 FR                  productivity) are currently exacerbating               species. However, critical habitat shall
                                                  64094; September 19, 2016).                             the negative effects of these threats.                 not be designated in foreign countries or
                                                                                                          Further, ongoing conservation efforts are              other areas outside U.S. jurisdiction (50
                                                  Extinction Risk                                         not adequate to improve the status of                  CFR 424.12 (g)).
                                                     None of the information we received                  these species. Thus, both species likely                  The best available scientific and
                                                  from public comment on the proposed                     to become endangered throughout their                  commercial data as discussed above
                                                  rule affected our extinction risk                       ranges in the foreseeable future (15–20                identify the geographical areas occupied


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                                                  6316             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  by R. rhinobatos and R. cemiculus as                     account the effectiveness of available                     listing process. In addition, this final
                                                  being entirely outside U.S. jurisdiction,                conservation measures. The section 4(d)                    rule is exempt from review under
                                                  so we cannot designate occupied critical                 protective regulations may prohibit,                       Executive Order 12866. This final rule
                                                  habitat for these species. We can                        with respect to threatened species, some                   does not contain a collection-of-
                                                  designate critical habitat in areas in the               or all of the acts which section 9(a) of                   information requirement for the
                                                  United States currently unoccupied by                    the ESA prohibits with respect to                          purposes of the Paperwork Reduction
                                                  the species if the area(s) are determined                endangered species. These section 9(a)                     Act.
                                                  by the Secretary to be essential for the                 prohibitions apply to all individuals,
                                                  conservation of the species. The best                                                                               Executive Order 13132, Federalism
                                                                                                           organizations, and agencies subject to
                                                  available scientific and commercial                      U.S. jurisdiction. Because neither                           In accordance with E.O. 13132, we
                                                  information on these species does not                    species has ever occupied U.S. waters,                     determined that this final rule does not
                                                  indicate that U.S. waters provide any                    and the United States has no known                         have significant federalism effects and
                                                  specific essential biological function for               commercial or management interest in                       that a federalism assessment is not
                                                  either of the Rhinobatos species.                        either species, we are not applying any                    required.
                                                  Therefore, based on the available                        section 9(a) prohibitions to either
                                                  information, we are not designating                                                                                 List of Subjects in 50 CFR Part 223
                                                                                                           species at this time.
                                                  critical habitat for R. cemiculus or R.                                                                               Endangered and threatened species,
                                                  rhinobatos.                                              References                                                 Exports, Imports, Transportation.
                                                  Identification of Those Activities That                    A complete list of references used in                      Dated: January 10, 2017.
                                                  Would Constitute a Violation of Section                  this final rule is available upon request                  Samuel D. Rauch, III,
                                                  9 of the ESA                                             (see ADDRESSES).                                           Deputy Assistant Administrator for
                                                     On July 1, 1994, NMFS and FWS                         Classification                                             Regulatory Programs, National Marine
                                                                                                                                                                      Fisheries Service.
                                                  published a policy (59 FR 34272) that                    National Environmental Policy Act
                                                  requires NMFS to identify, to the                                                                                     For the reasons set out in the
                                                  maximum extent practicable at the time                     The 1982 amendments to the ESA, in                       preamble, 50 CFR part 223 is amended
                                                  a species is listed, those activities that               section 4(b)(1)(A), restrict the                           as follows:
                                                  would or would not constitute a                          information that may be considered
                                                  violation of section 9 of the ESA.                       when assessing species for listing. Based                  PART 223—THREATENED MARINE
                                                  Because we are listing R. rhinobatos and                 on this limitation of criteria for a listing               AND ANADROMOUS SPECIES
                                                  R. cemiculus as threatened, no                           decision and the opinion in Pacific
                                                  prohibitions of section 9(a)(1) of the                   Legal Foundation v. Andrus, 675 F. 2d                      ■ 1. The authority citation for part 223
                                                  ESA will apply to these species.                         825 (6th Cir. 1981), we have concluded                     continues to read as follows:
                                                                                                           that ESA listing actions are not subject                      Authority: 16 U.S.C. 1531–1543; subpart B,
                                                  Protective Regulations Under Section                     to the environmental assessment                            § 223.201–202 also issued under 16 U.S.C.
                                                  4(d) of the ESA                                          requirements of the National                               1361 et seq.; 16 U.S.C. 5503(d) for
                                                     We are listing R. rhinobatos and R.                   Environmental Policy Act (NEPA).                           § 223.206(d)(9).
                                                  cemiculus as threatened under the ESA.                                                                              ■  2. In § 223.102, paragraph (e) add new
                                                  In the case of threatened species, ESA                   Executive Order 12866, Regulatory
                                                                                                           Flexibility Act, and Paperwork                             entries for ‘‘Guitarfish, blackchin’’ and
                                                  section 4(d) leaves it to the Secretary’s                                                                           ‘‘Guitarfish, common’’, in alphabetical
                                                  discretion whether, and to what extent,                  Reduction Act
                                                                                                                                                                      order by common name under the
                                                  to extend the section 9(a) ‘‘take’’                        As noted in the Conference Report on                     ‘‘Fishes’’ table subheading to read as
                                                  prohibitions to the species, and                         the 1982 amendments to the ESA,                            follows:
                                                  authorizes us to issue regulations                       economic impacts cannot be considered
                                                  necessary and advisable for the                          when assessing the status of a species.                    § 223.102 Enumeration of threatened
                                                  conservation of the species. Thus, we                    Therefore, the economic analysis                           marine and anadromous species.
                                                  have flexibility under section 4(d) to                   requirements of the Regulatory                             *       *    *         *      *
                                                  tailor protective regulations, taking into               Flexibility Act are not applicable to the                      (e) * * *

                                                                                        Species 1
                                                                                                                                             Citation(s) for listing determination(s)       Critical habitat   ESA rules
                                                                                                             Description of listed
                                                     Common name                  Scientific name                   entity


                                                            *                       *                        *                          *                        *                      *
                                                  Fishes

                                                             *                    *                          *                       *                 *                 *
                                                  Guitarfish, blackchin     Rhinobatos cemciculus ...        Entire species ........ 82 FR [Insert FEDERAL REGISTER page                          NA             NA.
                                                                                                                                       where the document begins], Janu-
                                                                                                                                       ary 19, 2017.
                                                  Guitarfish, common        Rhinobatos rhinobatos ....       Entire species ........ 82 FR [Insert FEDERAL REGISTER page                          NA             NA.
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                                                                                                       where the document begins], Janu-
                                                                                                                                       ary 19, 2017.

                                                            *                       *                        *                          *                        *                      *
                                                     1 Speciesincludes 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).




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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          6317

                                                  *      *     *       *      *                           Secretary of Commerce with respect to                  Bycatch at Chapters 3, 4, and 5 and
                                                  [FR Doc. 2017–00680 Filed 1–18–17; 8:45 am]             any fishery establish a standardized                   Appendix 5 (discussing regional
                                                  BILLING CODE 3510–22–P                                  reporting methodology to assess the                    bycatch and fisheries issues, reporting/
                                                                                                          amount and type of bycatch occurring in                monitoring measures, and precision
                                                                                                          the fishery, and include conservation                  goals for bycatch estimates, but noting
                                                  DEPARTMENT OF COMMERCE                                  and management measures that, to the                   that goals ‘‘may in some instances
                                                                                                          extent practicable, minimize bycatch                   exceed minimum statutory
                                                  National Oceanic and Atmospheric                        and bycatch mortality (16 U.S.C.                       requirements’’).
                                                  Administration                                          1853(a)(11)). See also 16 U.S.C. 1854(c)                  Additional background information—
                                                                                                          and (g) (authorizing Secretarial FMPs.                 including NMFS’ rationale for
                                                  50 CFR Part 600                                         Hereafter, ‘‘Council’’ includes the                    developing this rule, statutory and
                                                  [Docket No. 1512–01999–6969–02]                         Secretary of Commerce as applicable                    historical background, and the purpose
                                                                                                          when preparing FMPs or amendments                      and scope of the rule—can be found in
                                                  RIN 0648–BF51                                           under 16 U.S.C. 1854(c) and (g). See 50                the proposed rule that published on
                                                                                                          CFR 600.305(d). This standardized                      February 25, 2016 (81 FR 9413). Copies
                                                  Standardized Bycatch Reporting
                                                                                                          reporting methodology is commonly                      are available from NMFS (see
                                                  Methodology
                                                                                                          referred to as a ‘‘Standardized Bycatch                ADDRESSES), or can be viewed
                                                  AGENCY:  National Marine Fisheries                      Reporting Methodology’’ (SBRM). This                   electronically at the Federal E-
                                                  Service (NMFS), National Oceanic and                    final rule, which is promulgated                       Rulemaking portal for this action: http://
                                                  Atmospheric Administration (NOAA),                      pursuant to 16 U.S.C. 1855(d), sets forth              www.regulations.gov.
                                                  Commerce.                                               NMFS’ interpretation of section                           Separate from this rulemaking, which
                                                  ACTION: Final rule.                                     303(a)(11) and establishes national                    solely addresses reporting
                                                                                                          requirements and guidance for                          methodologies for bycatch as defined
                                                  SUMMARY:   This final rule interprets and               developing, documenting, and                           under the MSA, NMFS has engaged in
                                                  provides guidance on the requirement of                 reviewing SBRMs. A proposed rule for                   a broad range of activities since the
                                                  the Magnuson-Stevens Fishery                            this action was published on February                  1970s to address its bycatch-related
                                                  Conservation and Management Act                         25, 2016 (81 FR 9413), with public                     responsibilities under the MSA, the
                                                  (MSA) that all fishery management                       comments accepted through April 25,                    Marine Mammal Protection Act
                                                  plans (FMPs), with respect to any                       2016.                                                  (MMPA), the Endangered Species Act
                                                  fishery, establish a standardized                          Section 303(a)(11) was added to the                 (ESA), and other relevant statutes and
                                                  reporting methodology to assess the                     MSA by the Sustainable Fisheries Act of                international agreements. More
                                                  amount and type of bycatch occurring in                 1996 (SFA). The MSA does not define                    specifically, NMFS, the Councils, and
                                                  a fishery. The final rule establishes                   ‘‘standardized reporting methodology’’                 multiple partners have implemented
                                                  requirements and provides guidance to                   or any of the words contained within                   management measures to minimize
                                                  regional fishery management councils                    the phrase. Similar to section 303(a)(11),             bycatch and bycatch mortality in
                                                  and the Secretary of Commerce                           National Standard 9 (NS9) (16 U.S.C.                   fisheries (e.g., time and area closures);
                                                  regarding the development,                              1851(a)(9)) requires that conservation                 developed and/or researched bycatch
                                                  documentation, and review of such                       and management measures ‘‘shall, to the                reduction technologies for fishing gear
                                                  methodologies, commonly referred to as                  extent practicable, (A) minimize bycatch               (e.g., turtle excluder devices and circle
                                                  Standardized Bycatch Reporting                          and (B) to the extent bycatch cannot be                hooks); convened multi-stakeholder take
                                                  Methodologies (SBRMs).                                  avoided, minimize the mortality of such                reduction teams to address marine
                                                  DATES: Effective February 21, 2017.                     bycatch.’’ However, NS9 does not                       mammal bycatch; supported national
                                                                                                          address SBRM.                                          research programs, such as the Bycatch
                                                  ADDRESSES: Copies of the Categorical
                                                                                                             Prior to this rulemaking, NMFS never                Reduction Engineering Program;
                                                  Exclusion/Regulatory Impact Review                      issued regulations that set forth the                  promoted the adoption of bycatch
                                                  (RIR)/Final Regulatory Flexibility Act                  basic requirements of the SBRM                         reduction measures in international
                                                  Analysis (FRFAA) prepared for this                      provision. To implement the 1996 SFA                   regional fishery management
                                                  action can be obtained from: Karen                      Amendments, NMFS developed NS9                         organizations; and published a series of
                                                  Abrams, National Marine Fisheries                       guidelines in 1998, and amended these                  biennial National Bycatch Reports and
                                                  Service, 1315 East West Highway, Room                   guidelines in 2008. See 50 CFR 600.350.                Updates since 2011 that provide a
                                                  13461, Silver Spring, MD 20910. An                      The guidelines provide several                         historical summary of fishery- and
                                                  electronic copy of the CE/RIR/RFAA                      clarifications about bycatch                           species-specific bycatch estimates on an
                                                  documents as well as copies of public                   requirements under the MSA, but do not                 annual basis for major U.S. fisheries
                                                  comments received can be viewed at the                  interpret the SBRM requirement. In                     around the country, to cite a few
                                                  Federal e-rulemaking portal: http://                    2004, NMFS published Evaluating                        examples. NMFS also has a database
                                                  www.regulations.gov/ (Docket ID:                        Bycatch: A National Approach to                        from which members of the public can
                                                  NOAA–NMFS–2012–0092).                                   Standardized Bycatch Monitoring                        query bycatch estimates from the
                                                  FOR FURTHER INFORMATION CONTACT:                        Programs (NOAA Technical                               National Bycatch Reports and Updates.
                                                  Karen Abrams, 301–427–8508, or by                       Memorandum NMFS–F/SPO–66,                              See http://www.st.nmfs.noaa.gov/
                                                  email: karen.abrams@noaa.gov.                           October 2004, hereafter referred to as                 observer-home/first-edition-update-1.
                                                  SUPPLEMENTARY INFORMATION:                              Evaluating Bycatch), a report that was                 To build on its bycatch efforts, this year
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                                                                          prepared by the agency’s National                      in February 2016, NMFS issued for
                                                  Background                                              Working Group on Bycatch (available at                 public comment a draft National
                                                    Section 303(a)(11) of the Magnuson-                   http://www.nmfs.noaa.gov/by_catch/                     Bycatch Reduction Strategy that aims to
                                                  Stevens Fishery Conservation and                        SPO_final_rev_12204.pdf). The report                   coordinate NMFS’ efforts to address
                                                  Management Act (MSA) requires that                      did not provide, or purport to provide,                bycatch under the various mandates it is
                                                  any fishery management plan (FMP)                       the agency’s interpretation of the basic               charged with carrying out to further
                                                  prepared by a regional fishery                          requirements of complying with MSA                     advance its work in addressing bycatch
                                                  management council (Council) or the                     section 303(a)(11). See Evaluating                     both domestically and internationally.


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Document Created: 2018-02-01 15:15:31
Document Modified: 2018-02-01 15:15:31
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective February 21, 2017.
ContactBrendan Newell or Marta Nammack NMFS, Office of Protected Resources (OPR), (301) 427-8403.
FR Citation82 FR 6309 
RIN Number0648-XD77
CFR AssociatedEndangered and Threatened Species; Exports; Imports and Transportation

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