Daily Rules, Proposed Rules, and Notices of the Federal Government
On September 3, 2010, we received a petition from the WildEarth Guardians to list goliath grouper (
On June 11, 1991, we identified goliath grouper (previously known as jewfish) as a candidate species under the ESA (56 FR 26797). On April 15, 2004, we announced the establishment of a species of concern list, a description of the factors that it will consider when identifying species of concern, and revision of the ESA candidate species list (69 FR 19976). We transferred 25 candidate species, including goliath grouper, to this species of concern list.
In January 2006, we completed a status report for goliath grouper in the continental U.S. (North Carolina to the Gulf of Mexico), which we determined met the criteria for designation as a distinct population segment (DPS) under the ESA (NOAA, 2006). The purpose of the 2006 status report was to investigate the status of goliath grouper in the United States relative to the criteria for including a species on the species of concern list and in light of updated information about the status of and threats to the continental U.S. DPS of the goliath grouper. After evaluating the most current data, we concluded that the continental U.S. DPS of goliath grouper had undergone significant increases in abundance since its identification in 1991 as a candidate species under the ESA and had become re-established throughout its historical
Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered as a result of any one or a combination of the following five section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
Court decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
We evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. In other words, conclusive information indicating that the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by other organizations or agencies, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society (AFS), or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other federal or state statutes may be informative, but such classifications alone may not provide the sole rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
The goliath grouper constitutes a “species” eligible for listing under the ESA. The goliath grouper is a large member of the sea bass or serranid family found in both the Atlantic and Pacific Oceans. In the western Atlantic, the species is distributed from Bermuda and the Carolinas, south into the Gulf of Mexico and Caribbean Sea through the coast of Brazil (NOAA, 2006). In the eastern Atlantic Ocean, goliath grouper is found rarely from Senegal to Congo and the Canary Islands. They have also been found off the coast of Mexico in the eastern Pacific, including the Gulf of California to Peru (Smith, 1971; Heemstra and Randall, 1993).
Mangrove habitat is thought to be the primary habitat for juvenile goliath grouper (up to 1 m total length (TL)). Secondary and tertiary juvenile goliath grouper habitat areas include seagrass beds and oyster reefs. Adult goliath grouper occur either as solitary individuals or in groups of up to 100 fish. Resident goliath grouper are often found in significant numbers on high-relief hardbottom habitat (
Goliath grouper are a shallow-water species, typically found in less than 50 m of water (Heemstra and Randall, 1993); however, solitary specimens have been observed as deep as 80 m in the Gulf of Mexico and in the Atlantic Ocean off Florida (NOAA, 2006). Juveniles appear to prefer shallow estuarine waters 0 to 3 m in depth (Bullock and Smith, 1991). Larvae are pelagic, but their exact depth distribution is unknown.
The goliath grouper is a long-lived and late-maturing species that grows to an unusually large size. Bullock and Smith (1991) determined goliath grouper longevity of more than 35 years, and Smith (1971) determined their maximum weight could exceed 318 kg. Reproductive maturity is reached late (∼5-6 years) and at a large size (∼1 m TL; Bullock
First we evaluated whether the petition presented the information required by 50 CFR 424.14(b)(2). The petition clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; provides information regarding the status of the species over all or a significant portion of its range; and is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps.
The petition asserts that the goliath grouper warrants listing throughout its range, and as an alternative, that the continental U.S. population warrants listing under the ESA. The petitioner asserts that the continental U.S. population, ranging from North Carolina to the Gulf of Mexico, is most at risk of extinction as a result of threats described in the petition.
The petition states that the goliath grouper is becoming increasingly rare and imperiled, and that overfishing has taken a devastating toll on the species. The petition asserts that the species' biological constraints increase its susceptibility to adverse impacts from fishing, and that current regulations are not safeguarding the species from extinction. Additionally, the petition states the 2010 Deepwater Horizon oil spill event had, and continues to have, a detrimental effect on the habitat and range of the species. Thus, the petition states that at least four of the five causal factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of the goliath grouper: Present and threatened destruction, modification, and curtailment of habitat or range; overutilization for commercial and recreational purposes; inadequacy of existing regulatory mechanisms; and other natural or manmade factors, particularly the biological constraints of the species' life history.
The petition cites classifications made by the IUCN, AFS, and NatureServe to support its assertion that the goliath grouper is imperiled. The IUCN classified goliath grouper as critically endangered in 2006, a status assigned to species facing an extremely high risk of extinction in the wild, based on: “An observed, estimated, inferred or suspected population size reduction of ≥ 80% over the last 10 years or three generations, whichever is the longer, where the reduction or its causes may not have ceased or may not be understood or may not be reversible, based on actual or potential levels of exploitation,” and “a population size reduction of ≥ 80%, projected or suspected to be met within the next 10 years or three generations, whichever is the longer (up to a maximum of 100 years), based on actual or potential levels of exploitation” (
In 2000, the AFS identified the goliath grouper as being “conservation dependent,” which is a category for species considered to be “reduced but stabilized or recovering under a continuing conservation plan” (Musick
The 1998 NatureServe status review for goliath grouper concluded that the species was “imperiled” (NatureServe, 1998). NatureServe's imperiled classification is given to species that are “at high risk of extinction or elimination due to very restricted range, very few populations, steep declines, or other factors.” The NatureServe classification provides estimates of goliath grouper's global abundance and global short-term trend, but these estimates are outdated and/or unsubstantiated. Further, this classification does not use currently available data on population status indicating the species has been steadily recovering over the past 20 years in the United States due largely to a prohibition on goliath grouper harvest (
In summary, the source information that the cited classifications are based upon either does not include specific information or does not include current information on the extinction risk or population trends for goliath grouper throughout all or a significant portion of its range to indicate that the petitioned actions may be warranted. Additionally, in contrast to the petitioner's assertion that the U.S. population is most at risk, the IUCN assessment indicates that the goliath grouper population in the United States is recovering.
We next evaluated the information in the petition and information in our files concerning the extent and severity of threats corresponding to the factors listed in section 4(a)(1) of the ESA.
The petition cites declines in coral reef ecosystems; increasing water pollution from coastal development and tourism; and effects from energy development, specifically, the 2010 Deepwater Horizon oil spill event, as threats to the species. However, the petition does not provide any supporting information to indicate these generalized concerns are actually negatively affecting goliath grouper. Nor does the petition provide any information on threats to goliath grouper habitat that is located outside the range of the continental U.S. population.
The modification and destruction of goliath grouper habitat, notably the elimination of juvenile mangrove habitat, may currently have some impact on the species' abundance. Mangroves are essential fish habitat for post-larval and juvenile goliath grouper (GMFMC, 2004). Over the past 100 years, there has been a reduction in the amount of mangrove habitat acreage in Florida. In some areas, in particular southeast Florida and the Florida Keys, coastal development has dramatically reduced the amount of available mangrove habitat. The reduction of mangrove habitat, coupled with degraded water quality, may potentially have a negative impact on goliath grouper. Mangroves are abundant near the current center of abundance (Ten Thousand Islands, Florida), but have significantly declined in other areas. The destruction or modification of mangrove habitat in these areas may limit the rate at which goliath grouper become reestablished throughout their historical range, because it offers less suitable habitat for juveniles to reside. Areas outside the center of abundance (
Of the estimated 693,360 acres of mangroves in the United States, 96 percent occur in Florida (Mendelssohn and McKee, 2000). A recent study by Ueland (2005) determined there were an estimated 512,842 acres of mangrove in the 14 southernmost coastal counties of Florida in 2000. In one of the few studies that investigated long-term changes in mangrove systems, Ueland (2005) determined that the 2000 estimate represented a 9.0 percent total loss in mangrove habitat from his 1987 estimate of 563,388 acres. In terms of total acres amongst the 14 counties encompassed within the study, Monroe County lost the largest amount of mangrove area (37,031 acres; 12.2 percent decline), while Charlotte County showed an increase of 1,229 acres (5.9 percent increase) during the 13-year period.
Though natural events such as hurricanes can result in mangrove loss, over the past six decades, habitat modification and coastal development in Florida have been the primary forces behind dramatic reductions in mangrove habitat. The Everglades has lost approximately 22 percent of mangrove/marsh habitat since 1927, primarily due to habitat modification for agricultural purposes (Foster and Smith, 2001). On Florida's east coast, the Indian River Lagoon system from St. Lucie Inlet north to Satellite Beach has less than 8,000 acres of mangroves, but only 1,900 are available as fisheries habitat because of mosquito impoundments; a total of 86 percent of the mangrove areas have been lost to fisheries since the 1940s (FL DEP, 2003). Lake Worth Lagoon near West Palm Beach has experienced an 87 percent decrease of its mangrove acreage over the past 40 years (FL DEP, 2003). Mangroves appear to have been replaced by the Australian pine and/or urbanization (FL DEP, 2003).
While habitat destruction and modification may have some impact on the abundance of the goliath grouper, it is unlikely that it presents a significant impact that would threaten or endanger the species, unless extensive juvenile habitat loss occurs near the population's center of abundance. Despite extensive habitat modification in Florida, the species has been increasing in number over the past 20 years (NOAA, 2006). The construction of artificial reefs in both the Atlantic Ocean and Gulf of Mexico during the past 25 years may have had a beneficial impact on the species by presenting additional shelter and forage opportunities for adult goliath grouper. In summary, the petition and information in our files does not constitute substantial information indicating the present or threatened destruction, modification, or curtailment of habitat or range is an extinction risk of concern for goliath grouper either throughout its range or in a significant portion of its range.
The petition states that “the primary threat to these grouper species is overfishing, both commercially and recreationally.” Further, it states “these species * * * are considered overfished
Threatened or endangered status under the ESA and overfished status under MSFCMA are based on different criteria and, thus, do not necessarily coincide. In our 2007 status review for the Atlantic white marlin (73 FR 843, January 4, 2008;
As noted above, goliath grouper is not listed as undergoing overfishing in the South Atlantic, Gulf of Mexico, or Caribbean. Additional information indicates that the species continues to rebound within the continental United States following population declines in the 1980s and into the 1990s (NOAA, 2006). Long-term visual survey indices document increased goliath grouper abundance throughout Florida starting in the late 1990s, following implementation of harvest and possession moratoriums (SEDAR, 2010).
Model results from Porch
The 2003 assessment estimated there was a 50 percent chance of exceeding the current MSFCMA management benchmark for this species in the southeastern United States as early as 2006, and that there was a 95 percent chance that the population might recover by 2012 (Porch
The petition also expresses concern over potential bycatch mortality, and states “there is a high probability that they will suffer from barotrauma (
In summary, the petition and information in our files do not present substantial information indicating that overutilization is resulting in an extinction risk of concern for goliath grouper either throughout or in a significant portion of its range.
The petition states that existing regulatory mechanisms are inadequate to prevent endangerment or extinction of goliath grouper. While the petition notes the two decade-long harvest ban on goliath grouper, it cites studies recommending further data be collected before lifting the fishing ban.
The goliath grouper fishery expanded quickly and dramatically through the 1980s, which required the introduction of conservation and management measures for the species. The South Atlantic Fishery Management Council (SAFMC) prohibited the spearing of goliath grouper in March 1983 (SAFMC, 1983). In 1985, the state of Florida implemented an 18-inch minimum size limit for goliath grouper to help prevent the harvest of juvenile fish. However, the rapid increase in fishing effort for goliath grouper followed by a subsequent decline in catches also led to regulatory measures by the Gulf of Mexico Fishery Management Council (GMFMC) for federal waters in the Gulf of Mexico. In 1989, the GMFMC implemented a 50-inch (1,270-mm) total length minimum size limit for goliath grouper (GMFMC, 1989). This measure was originally considered conservative enough to restore the stock. However, additional information revealed that the stock was more depleted than previously thought, so in March 1990, the GMFMC prohibited all harvest and possession of goliath grouper in federal waters of the Gulf of Mexico (GMFMC, 1990). Likewise, the SAFMC prohibited
The state of Florida followed suit and prohibited the harvest and possession of goliath grouper from state waters in 1990. Eventually, all other coastal states from North Carolina to Texas implemented regulations to prohibit the harvest or possession of goliath grouper.
The petition states the IUCN defines the species as critically endangered throughout its entire range. The IUCN, however, qualifies its assessment by stating, “Information is needed from other locations within its range, including the eastern Atlantic and eastern Pacific” (IUCN, 2006). The IUCN also notes that “Global or regional abundance of adults is unknown” (Ibid).
The petition fails to provide substantial information indicating existing regulatory mechanisms are inadequate to prevent, or are contributing to, extinction risk for goliath grouper throughout its range, in a significant portion of the range, or in the continental United States. To the contrary, the petition notes the various harvest restrictions have “yielded some signs of recovery” in the Gulf of Mexico. Available information documents that there has been a history of effective regulatory action to conserve and protect goliath grouper, which has resulted in the species' ongoing recovery and rebuilding within the continental United States (NOAA, 2006). While Brazil implemented a harvest prohibition in 2002, IUCN (2006) details that “nothing is known yet about the response to management in Brazil and data are missing on the species from many other places in its range.” The petition provides no information supporting the statements of generalized threats posed by the alleged inadequacy of global regulatory measures, and we have no information in our files suggesting that this is an extinction risk of concern.
The petition states that goliath grouper is more susceptible to extinction due to a number of biological constraints, including a “slow rate of maturation and growth, large size, and aggregation at specific times and sites for spawning, combined with their high commercial value and value as a trophy fish, make them particularly susceptible to depletion from fishers.” However, neither the petition nor information in our files suggests that current fishing pressure (
The petition also lists potential small population size of adult goliath grouper and human population growth as other natural or manmade factors contributing to goliath grouper's vulnerability, but does not provide any supporting information to indicate these generalized concerns are actually negatively affecting goliath grouper.
Therefore, we conclude that the petition and information in our files do not present substantial information to suggest that other natural or manmade factors may be causing extinction risk of concern for goliath grouper either throughout or in a significant portion of its range. We further conclude the petition and information in our files do not present substantial information to suggest that any combination of the 4(a)(1) factors discussed above may pose an extinction risk for goliath grouper that is cause for concern.
Goliath grouper are found in the western Atlantic Ocean from Bermuda southward through the Gulf of Mexico and Caribbean Sea to Brazil, in the eastern Atlantic off the African coast, and in the eastern Pacific Ocean from the Gulf of California south to Peru. As noted by the petitioners, the goliath grouper is widely ranging but is most likely to occur in U.S. waters (Chuen and Huntsman, 2006). The petitioner requests the species be listed throughout its range, or alternatively that the continental U.S. population be listed. The information presented in the petition focuses on the status of the species in the U.S. waters where the petitioner asserts “* * * it is most threatened by the risk of extinction * * *.” However, evidence in the petition and in our files supports the conclusion that the species is recovering in U.S. waters. The petition also fails to either present specific information on how the cited threats are affecting goliath grouper or does not incorporate current data regarding the improved status of the species. After reviewing the information contained in the petition, as well as information readily available in our files, we conclude the petition fails to present substantial scientific or commercial information indicating the petitioned action may be warranted.
A complete list of all references is available upon request from the Protected Resources Division of the NMFS Southeast Regional Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531