[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)]
[Rules and Regulations]
[Pages 43701-43710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19903]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 160614520-7805-02]
RIN 0648-XE686
Endangered and Threatened Wildlife and Plants: Final Rule To List
the Maui Dolphin as Endangered and the South Island Hector's Dolphin 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 the Maui dolphin
(Cephalorhynchus hectori maui) as endangered and the South Island (SI)
Hector's dolphin (C. hectori hectori) as threatened under the
Endangered Species Act (ESA). We considered comments submitted on the
proposed listing rule and have determined that the Maui dolphin and the
SI Hector's dolphin warrant listing as endangered and threatened
species, respectively. We will not designate critical habitat for
either of these dolphin subspecies, because the geographical areas
occupied by these dolphins 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
subspecies.
DATES: This final rule is effective October 19, 2017.
ADDRESSES: Endangered Species Division, NMFS Office of Protected
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Lisa Manning, NMFS, Office of
Protected Resources, [email protected], (301) 427-8466.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2013, we received a petition from WildEarth Guardians
to list 81 marine species or populations as endangered or threatened
species under the ESA. We determined that the petition had sufficient
merit for further consideration, and status reviews were initiated for
27 of the 81 species or populations, including the Hector's dolphin
(Cephalorhynchus hectori; 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 Maui dolphin (Cephalorhynchus
hectori maui) as endangered and the SI Hector's dolphin (C. hectori
hectori) as threatened (81 FR 64110). We requested
[[Page 43702]]
public comments on the information in the proposed rule and the
associated status review during a 60-day public comment period, which
closed on November 18, 2016. This final rule provides a discussion of
the public comments received in response to the proposed rule and our
final determinations on the petition to list the Maui dolphin and the
SI Hector's dolphin under the ESA. The findings and relevant Federal
Register notices for the other species and populations addressed in the
petition can be found on our Web site at www.nmfs.noaa.gov/pr/species/petition81.htm.
Listing Determinations Under the ESA
We are responsible for determining whether species meet the
definition of threatened or endangered under the ESA (16 U.S.C. 1531 et
seq.). To make this determination, we first consider whether a group of
organisms constitutes a ``species'' under 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. The Maui dolphin, C. hectori maui, and the SI Hector's
dolphin, C. hectori hectori, are formally recognized subspecies (Baker
et al., 2002, Pichler 2002) and thus meet the ESA definition of a
``species.''
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 species 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 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 regarding the species' response to that threat, 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 one or a combination of
the following five threat 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. 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 assessing the extinction risk of these two subspecies, we
considered demographic risk factors, such as those developed by
McElhany et al. (2000), to organize and evaluate the forms of risks.
The approach of considering demographic risk factors to help frame the
consideration of extinction risk has been used in many of our previous
status reviews (see http://www.nmfs.noaa.gov/pr/species for links to
these reviews). In this approach, the collective condition of
individual populations is considered at the species level (or in this
case, the subspecies level) according to four demographic viability
factors: abundance and trends, population growth rate or productivity,
spatial structure and connectivity, and genetic diversity. These
viability factors reflect concepts that are well-founded in
conservation biology and that individually and collectively provide
strong indicators of extinction risk.
Scientific conclusions about the overall risk of extinction faced
by the Maui dolphin and the SI Hector's dolphin under present
conditions and in the foreseeable future are based on our evaluation of
the subspecies' demographic risks and section 4(a)(1) threat factors.
Our assessment of overall extinction risk considered the likelihood and
contribution of each particular factor, synergies among contributing
factors, and the cumulative impact of all demographic risks and threats
on each subspecies.
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, or any
political subdivision of a State or foreign nation, to protect the
species. Therefore, prior to making a listing determination, we also
assess such protective efforts to determine if they are adequate to
mitigate the existing threats.
Summary of Comments
In response to our request for comments on the proposed rule, we
received 75 comments. The comments were submitted by multiple
organizations and individual members of the public from a minimum of
seven countries (Australia, Bahamas, Canada, England, Ireland, New
Zealand, and the United States). All of the comments were supportive of
the proposed endangered listing for the Maui dolphin. Several
commenters suggested listing the SI Hector's dolphin as endangered, and
one comment was opposed to the proposed threatened listing for the SI
Hector's dolphin. Summaries of comments received regarding the proposed
rule and our responses are provided below.
Comment 1: A large majority of the comments were general statements
expressing support for listing Maui dolphins as endangered and SI
Hector's dolphins as threatened under the ESA. Most of these comments
were not accompanied by information or references. Some of the comments
were accompanied by information that is consistent with, or cited
directly from, our proposed rule or draft status review report. Several
of the comments included pointed statements regarding the inadequacy of
current management efforts to reduce bycatch of Hector's dolphins.
Several other comments were associated with a ``Let's Face It''
campaign to protect Maui dolphins, and in one case, a commenter
provided a link to an online, visual petition from ``Let's Face it''
consisting of photos of the over 9,400 people who participated in the
campaign. The Marine Mammal Commission in particular concurred with our
proposed endangered listing of Maui dolphins, and recommended we
proceed with a final rule listing them as such under the ESA.
Response: We acknowledge all of these comments and the considerable
public interest expressed in support of
[[Page 43703]]
the conservation of the SI Hector's and Maui dolphins.
Comment 2: Two scientists from the University of Otago, New
Zealand, submitted an unpublished report (referred to here as Slooten
and Dawson 2016) presenting population viability analyses (PVAs),
estimates of Potential Biological Removal (PBR), and projected
population trends for Maui and SI Hector's dolphins. The report updates
previously published analyses (e.g., Slooten 2007a; Slooten and Dawson
2010) by incorporating the recent abundance estimates reported by Baker
et al. (2016) for Maui dolphins and by Mackenzie and Clement (2014,
2016) for SI Hector's dolphins. These updated analyses were conducted
to explore how the new abundance estimates affect previous conclusions
about risk and population viability. The report also reviews the
available data on fishery-observer coverage and available bycatch data
by location, year, and gear type (gillnet, trawl, or craypot). The
report discusses several limitations of the available bycatch data and
asserts the data provide an under-estimate of the actual level of
bycatch mortality.
The commenters' updated PBR (using a recovery factor of 0.1) for
Maui dolphins ranges from 0.05 to 0.12, depending on the assumed per
capita growth rate (Rmax). Their estimated rate of population decline
is 2 percent per year, with a 95 percent confidence interval (CI) that
ranges from a 1.6 percent decline to a 4.8 percent increase per year,
which the commenters note indicates a high level of uncertainty
regarding the population trend. The commenters present a Bayesian
linear regression analysis that indicates there is a 68 percent
probability that the Maui dolphin population is continuing to decline,
and their power analysis indicates that the ability (statistical power)
to detect population trends in continued population surveys for Maui
dolphins is very low.
The updated PBR estimate provided by the commenters for the SI
Hector's dolphin ranges from 3 to 24 dolphins per year, depending on
the value of Rmax and the offshore range of the dolphins applied.
Results of the updated PVA suggest that the abundance of SI Hector's
dolphins has declined by 70 percent over the last three generations (39
years), and that the subspecies will continue to decline to 8,283
dolphins (95 percent CI: 4,925-13,931) by the year 2050. The commenters
conclude that the new, higher abundance estimate for the SI Hector's
dolphins is more than offset by the increased degree of overlap between
fishing activities and the more extensive offshore distribution of
dolphins on the east coast of the South Island.
Response: We thoroughly reviewed and considered the analyses and
information presented in this report.
In response to the information provided in this comment, we updated
our status review report (Manning and Grantz 2017) to include the
recent abundance estimate for Maui dolphins from Baker et al. (2016),
who reported an abundance estimate of 63 dolphins 1 year of age and
older (95 percent CI: 57-75). This new abundance estimate is based on a
long-term genetic mark-recapture study and is within the 95 percent CI
of the previous estimate resulting from this work (i.e., 55 dolphins 1
year of age and older (95 percent CI: 48-69), Hamner et al., 2014b).
Estimates of the rate of population decline provided by the commenters
are consistent with those provided recently by Baker et al. (2016):
Both sources indicate an annual rate of decline of about 2 percent with
a high degree of uncertainty. The updated PBR estimates reported by the
commenters (i.e., 0.05 (or one dolphin every 20 years) to 0.12 (or one
dolphin every 8.3 years)) are also similar to those reported previously
using older abundance estimates--e.g., 0.16 (Slooten et al., 2006a),
0.044-0.10 (Wade et al., 2012).
Overall, while the commenters' report does provide updated
analyses, the results presented and the more recent population
abundance estimate for Maui dolphins do not change the outlook for this
subspecies. The subspecies is at a critically low abundance, is still
considered to have a very low threshold for human-caused mortality
(i.e., PBR is still well below 1.0), and is likely to undergo continued
decline. Therefore, we find that the new abundance estimate and revised
analyses support, and do not alter, our previous conclusion that the
Maui dolphin meets the definition of endangered under the ESA.
As explained by the commenters, previous estimates of PBR and
population viability analyses for the SI Hector's dolphins relied on
earlier, lower abundance estimates; whereas, the analyses prepared by
the commenters use the latest abundance estimate of 14,849 SI Hector's
dolphins (95% CI = 11,923-18,492, Mackenzie and Clement 2014, 2016). As
discussed in more detail in the status review report (Manning and Gantz
2017), this most recent abundance estimate for the SI Hector's dolphin
is based on a series of aerial, line-transect surveys that were
conducted around the South Island during 2010-2015 (Clement et al.,
2011, Mackenzie and Clement 2014, Mackenzie and Clement 2016). These
surveys extended farther offshore than the previous island surveys (up
to 20 nautical miles offshore versus 4 to 10 nautical miles), a factor
that, to some extent, contributed to the larger abundance estimate
relative to the previous estimate. Interestingly, despite the much
larger population abundance estimate for this subspecies, the results
of the updated analyses for the SI Hector's dolphin provided by the
commenters do not suggest a substantially different outlook for the
subspecies.
The commenters provide updated PBR estimates for SI Hector's
dolphins by region. Unfortunately, however, the east coast of the South
Island is the only region for which bycatch estimates are available
following implementation of management measures in 2008, making
comparisons of bycatch levels to PBR estimates for other regions
difficult. The updated PBR estimates for the east coast population
presented by the commenters (3-15 dolphins per year) are higher than
those published previously by the commenters (0.57-1.28, Slooten and
Dawson 2008b); however, they are still largely below the level of
bycatch estimated for the east coast using commercial gillnetting
observer data (23 dolphins, min-max range of 4--48, Slooten and Davies
2012). This information suggests that bycatch in commercial gillnets
alone may be occurring at an unsustainable rate in this region.
The results of the updated PVAs provided by the commenters for the
SI Hector's dolphins suggest that a large historical decline in
abundance occurred since the 1970's, similar to the finding of previous
analyses (e.g., Slooten 2007a, Slooten and Dawson 2010). The updated
PVA also predicts continued decline by about 44 percent by the year
2050 given current fishing effort, estimated bycatch, and current
management measures. It is not clear, however, what bycatch estimates
were applied in this analysis; and, as noted by the commenters, there
is considerable uncertainty regarding the level of bycatch across the
range of the subspecies. This and previous analyses have relied on very
limited bycatch estimates, which are only available for a small number
of regions and years and only for commercial gillnet fisheries. These
shortcomings have been noted previously and cannot be remedied until
sufficient, reliable bycatch data become available.
Overall, the results of the analyses presented by the commenters
are consistent with our previous conclusions that the SI Hector's
dolphin
[[Page 43704]]
has experienced large historical declines in abundance, is likely
experiencing unsustainable levels of bycatch, and is likely to continue
to decline under existing management protections. Therefore, we
conclude the information provided in the commenters' report does not
alter our finding that the SI Hector's dolphin meets the definition of
threatened under the ESA.
Comment 3: Five commenters requested that we list the SI Hector's
dolphin as endangered under the ESA. One of these commenters also urged
that we enact strict protections immediately for SI Hector's dolphins
(and Maui dolphins). One of the commenters stated that an endangered
listing for SI Hector's dolphins was justified because this subspecies
consists of a network of unique, local populations or ``Distinct
Population Segments'' that are small, declining, and increasingly
fragmented. Three papers on specific subpopulations of SI Hector's
dolphins (i.e., Rayment et al., 2009a, Turek et al., 2013, Weir and
Sagnol 2015) and one study on genetic differentiation among populations
(i.e., Hamner et al., 2012a) were provided to demonstrate fragmentation
of populations. This commenter also stated that bycatch levels remain
high because current fisheries management measures cover only a small
portion of the SI Hector's dolphin's habitat and are poorly monitored
and enforced. A report reviewing marine fisheries catch data in New
Zealand (i.e., Simmons et al., 2016) and a link to video footage
showing the capture of two SI Hector's dolphins were provided to
support this statement.
Response: In response to these comments, we reviewed the
information and references provided and considered whether the
available information indicates the SI Hector's dolphin meets the
definition of endangered under the ESA.
We agree that SI Hector's dolphin comprises multiple populations,
some of which have been estimated to be very small, and that the
population structure, in combination with other factors such as small
home ranges (e.g., Rayment et al., 2009a), is contributing to the
extinction risk for this subspecies. The best available data indicate
that the SI Hector's subspecies comprises three, regional populations
that can be distinguished geographically and genetically--an east coast
(ECSI), west coast (WCSI), and south coast population (SCSI; Pichler
2002, Hamner et al., 2012). Additional population structuring within
these larger geographic regions has also been indicated in genetic
studies (e.g., Te W[aelig]w[aelig] Bay and Toetoe Bay within the SCSI,
Hamner et al., 2012a). Two references cited by the commenter present
analyses of photo-identification data that provide additional evidence
of small, localized or fragmented populations off Otago and Kairkoura
on the ECSI (Turek et al., 2013, Weir and Sagnol 2015). Because we had
not cited these latter two references previously, we have expanded our
discussion of population structure in the status review report (Manning
and Grantz 2017) to incorporate information from these two studies.
The references provided, however, do not alter our interpretation
of the available data regarding population structure and its
contribution to extinction risk for SI Hector's dolphins. As discussed
in the status review report and proposed rule, the available genetic
evidence (based on both mitochondrial DNA and microsatellites)
indicates that there are low levels of migration between most
neighboring local populations over distances shorter than 100 km
(Hamner et al., 2012a). While strong genetic differentiation has been
detected among the regional populations, very few intra-regional
comparisons of populations in the ECSI and WCSI regions have been
significant (Pichler 2002; Hamner et al., 2012a). Analysis of levels of
genetic differentiation among sample locations within regions suggests
there is sufficient gene flow to maintain genetic diversity within the
ECSI and WCSI regions; however, the very restricted gene flow detected
between local populations in the SCSI region (i.e., beween Te WaeWae
and Toetoe Bays) does pose a conservation concern (Hamner et al.,
2012a). Connectivity between the small, local populations within each
region is very important to the overall status of this subspecies, and
additional loss of connectivity would increase risks of genetic drift,
loss of genetic diversity, and extinction. Thus, as we concluded in our
status review (Manning and Grantz 2017), the spatial structure and
connectivity among SI Hector's populations is posing a moderate risk to
the subspecies, but this factor, either alone or in combination with
other threats, does not put the subspecies at immediate risk of
extinction (Manning and Grantz 2017). Information provided by the
commenter does not provide new or different information regarding the
degree of population fragmentation, abundance, or the rate of decline
of any populations. Therefore, we find that the information provided by
the commenter is consistent with the analysis presented in our status
review and does not alter our conclusion that the SI Hector's dolphin
meets the definition of threatened under the ESA.
We also agree with the comment that bycatch of SI Hector's dolphins
continues to pose a threat despite existing fisheries management
efforts. As we discuss in our status review, the risk of bycatch in
commercial and recreational trawl and gillnet fisheries remains high
given the known distribution of the dolphins relative to areas open to
fishing, especially on the west and north coasts of the South Island
(Faustino et al., 2013, Slooten 2013). The report provided by the
commenter, which reviewed New Zealand marine fisheries catch data from
1950-2010 (i.e., Simmons et al., 2016), indicates a serious degree of
under-reporting of catch and discards in commercial fisheries; however,
the report documents the under-reporting of only a single Hector's
dolphin by one fishing vessel. Video footage provided by one of the
commenters was recorded as part of an investigation, called Operation
Achilles, conducted by the New Zealand Ministry for Primary Industries'
(MPI) following earlier video evidence of dolphin bycatch obtained
during a pilot electronic monitoring program. The footage provided by
the commenter was made publicly available by MPI and shows the capture
of two SI Hector's dolphins; and according to the associated reports
provided by MPI (http://mpi.govt.nz/protection-and-response/environment-and-natural-resources/sustainable-fisheries/independent-review-of-prosecution-decisions/), only one of the two dolphins was
reported as legally required. Overall, while the report and the video
provide definitive evidence that under-reporting of bycatch of Hector's
dolphins has occurred, this information alone does not augment the
available bycatch data or improve our understanding of the extent or
rate of bycatch such that an endangered listing for the SI Hector's
dolphin is warranted.
Lastly, we note that one of the commenters who requested an
endangered listing for the SI Hector's dolphin equated the population
structure of SI Hector's dolphins with ``distinct population segments''
(DPSs), which are included in the ESA definition of a ``species'' and
are units of vertebrate populations that can be listed under the ESA.
We address DPSs and the issue of whether populations of SI Hector's
dolphins should be identified as DPSs under our response to Comment 4
(below).
Comment 4: The Marine Mammal Commission commented that the
information provided in our status
[[Page 43705]]
review and proposed rule is insufficient to support a threatened
listing for the SI Hector's dolphin. The comment discussed four main
lines of reasoning in support of that statement: (1) In contrast to the
Maui dolphin, the SI Hector's dolphins remain fairly abundant; (2) the
length of the ``foreseeable future'' we applied is unrealistically
long; (3) bycatch is currently being mitigated through management
actions, and we cannot assume that additional management measures will
not be implemented by New Zealand; and, (4) while disease and tourism
are potential threats, their population-level impacts are uncertain.
The Commission recommended that we revise the length of the
``foreseeable future'' used in the analysis, reconsider whether
existing regulatory mechanisms are inadequate to address the threat of
bycatch, and reconsider our proposal to list the SI Hector's dolphin
subspecies as threatened.
The Commission also noted that one or more of the regional
populations of SI Hector's dolphins could meet the definition of a DPS.
The Commission states that the status review and proposed rule did not
explore the possibility that any of these populations could merit
separate listing consideration or could contribute to a threatened
listing of the subspecies.
Response: We agree with the Commission that the current abundance
estimate for the SI Hector's dolphin is fairly high relative to the
estimated population abundance of Maui dolphins, which is at a
critically low level. The estimated abundance of the entire SI
subspecies was an important consideration in our risk analysis and
contributed to our finding that the SI Hector's dolphin is not
presently in danger of extinction and thus does not meet the definition
of endangered under the ESA. However, we did not rely on estimates of
abundance as an exclusive determinant of this subspecies' risk of
extinction. Rather, and as is our standard practice when conducting
status reviews under the ESA and as articulated in our status review,
our analysis also considered other demographic risk factors, including
population growth/productivity, spatial structure and connectivity, and
genetic diversity. As required under the ESA, we also considered
threats and protective efforts. Thus, for SI Hector's dolphins in
particular, we considered the estimates of large historical declines in
abundance, the observed loss of genetic diversity, the limited
connectivity of populations, as well as ongoing threats such as bycatch
and the projections of continued declines despite management efforts.
Ultimately, all of this information was used in reaching the conclusion
that this subspecies faces a level of risk that warrants listing it as
threatened under the ESA.
We disagree with the comment that we applied an ``unrealistically
long'' timeframe as the ``foreseeable future'' in our analysis and that
we should revise it to be ``a period of time relevant to mitigation of
the bycatch threat.'' The comment explicitly refers to a discussion
presented in both the status review and proposed rule regarding the
rate of decline of SI Hector's dolphins around Banks Peninsula as
estimated by Gormley et al. (2012) and our extrapolation of that rate
of decline to the entire subspecies. The result of our calculation was
a 50 percent decline in the population in about 138 years and an 80
percent decline in about 321 years. We did not, however, apply these
timeframes as the ``foreseeable future'' as asserted by the Commission.
As we stated in the proposed rule (81 FR 64121, September 19, 2016),
these are simply calculations based on the limited data available, and
we did not use them to establish any specific thresholds for
determining when the subspecies may be in danger of extinction. The
status review also characterizes this calculation as ``grossly over-
simplified and not realistic'' and explains that a trend analysis and a
projection of the time to extinction is not currently possible (Manning
and Grantz 2017). We also stated in both the status review and proposed
rule that the actual rate of decline of the subspecies remains unclear
given the deficiency of bycatch mortality data. We note that we are not
required to develop a specific rate of decline in order to find that a
species meets the definition of threatened under the ESA. In this
particular case, the available data do not support such a calculation.
Lastly, we note that our ultimate determination regarding the status of
the SI Hector's dolphin does not exclusively depend on the threat of
bycatch or the rate of decline attributable to bycatch alone. Our
status review and proposed rule discuss available data on other
demographic risk factors and threats, and our conclusion that the SI
Hector's dolphin warrants listing as threatened was based on
consideration of these multiple threats, each of which may be operating
at different time scales. We made minor edits to the status review
report to clarify this issue.
As requested by the Commission, we reconsidered our conclusion
regarding the adequacy of existing management measures relative to the
threat of bycatch of SI Hector's dolphins. We also searched for
additional data and information regarding bycatch of Hector's dolphins
and associated management measures. We did not find any updated
information regarding the rate or extent of bycatch or the
effectiveness of current bycatch reduction efforts around the South
Island, nor did the Commission provide any data or information
regarding the adequacy of bycatch management measures. We did, however,
receive a letter, dated November 22, 2016, from the New Zealand
Department of Conservation (DOC), affirming the New Zealand
government's commitment to the long-term viability of Hector's dolphins
and indicating that the DOC and the Ministry for Primary Industries
(MPI) will be undertaking a review of their Threat Management Plan in
2018. The effectiveness of existing protections for the dolphins will
be assessed as part of that review. However, we cannot speculate on
whether or what changes to existing protections may occur in the future
as a result of that review process.
During our search for additional information, we noticed that since
publication of the proposed rule to list SI Hector's dolphins in
September 2016 (81 FR 64110), five SI Hector's dolphin mortalities had
been added to the DOC's incident database. Cause of death, which was
determinable for three of the five dolphins, is listed as disease for
two dolphins and bycatch in a commercial trawl net for the third
dolphin. We also found a recent press release, dated June 27, 2017,
from the New Zealand MPI indicating that MPI was investigating the
death of two other SI Hector's dolphins found in March 2017, one near
Banks Peninsula on the East Coast and one in Greymouth on the West
Coast (http://www.mpi.govt.nz). In the press release, MPI states they
believe the cause of death of the dolphin found on the West Coast was
illegal recreational set-netting. This additional information clearly
indicates that bycatch of SI Hector's dolphins is continuing in both
trawls and gillnets; however, it does not constitute sufficient data to
alter or revise our previous assessment. Ultimately, after careful
consideration, we did not find any basis to change our previous
conclusion regarding the adequacy of existing bycatch management
measures. We find that the weight of the available data and study
results support a conclusion that bycatch has contributed to a large
historical decline in abundance and continues to contribute to the
decline of SI Hector's dolphins.
We agree with the Commission that the population-level effects of
disease
[[Page 43706]]
and tourism are uncertain. Other threats discussed in our status review
report (Manning and Grantz 2017)--for example, pollution and
contaminants--have a similar uncertainty. We do not agree, however,
that this uncertainty means these threats can be disregarded. As we
discuss in our status review report, the available data suggest that
tourism activities and disease are posing threats to SI Hector's
dolphins (Manning and Grantz 2017). The report presents the available
information regarding infectious disease cases (especially
toxoplasmosis) in SI Hector's dolphins, which in addition to being a
possibly substantial source of mortality, may have other detrimental,
sub-lethal consequences (e.g., increased risk of predation, reduced
reproductive rate, neonatal deaths) for the dolphins. The status review
report also presents information on the intensity and popularity of
dolphin watching and commercial encounter (or ``swim with'') operations
off the South Island; and presents evidence of short-term behavioral
responses in SI Hector's dolphins, and evidence of linkages to longer-
term impacts in other dolphins (e.g., Tursiops sp.). Available data on
the related concern of boat strikes were also provided. We noted in the
report that the available data are not currently sufficient to
understand the magnitude or overall impact of these threats on the
subspecies. In our proposed rule (81 FR 64123, September 19, 2016), we
concluded that factors such as disease and tourism are ``lesser
threats'' that are ``likely exacerbating the rates of decline'' for SI
Hector's dolphins. In other words, we do not consider disease and
tourism to be the main drivers of decline of SI Hector's dolphins;
rather, we consider them to be contributors to the cumulative, negative
impacts on the status of the subspecies.
Lastly, we disagree with the suggestion that we should explore the
possibility of listing separate distinct population segments (DPS) of
SI Hector's dolphins or consider how their individual statuses might
contribute to a threatened listing for the subspecies. 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.'' A joint
policy with the U.S. Fish and Wildlife Service (together the
``Services'') lays out two elements that must be considered when
identifying a DPS: (1) The discreteness of the population segment in
relation to the remainder of the species (or subspecies); and (2) the
significance of the population segment to the remainder of the species
(or subspecies) (``the DPS Policy,'' 61 FR 4722, February 7, 1996). As
stated in the DPS Policy, Congress expressed its expectation that the
Services would exercise authority with regard to DPSs sparingly and
only when the biological evidence indicates such action is warranted.
In this particular case, because we reached a determination that the SI
Hector's dolphin warrants listing at the subspecies level, such an
analysis would be superfluous. In addition, because we were not
petitioned to list the SI Hector's dolphins as separate DPSs, there is
no requirement that we commit additional agency resources to conduct an
analysis and determine whether SI Hector's dolphins could be listed
separately at the DPS level. Furthermore, we note there is no clear
conservation benefit to the subspecies by pursuing such an option.
Comment 5: Several commenters stated that they were opposed to the
elimination of swim-with-dolphin activities. One commenter stated that,
although he is supportive of marine mammal conservation generally,
swimming with wild dolphins should not be prohibited because it causes
no harm to the dolphins.
Response: This rulemaking concerns only whether Maui dolphins and
SI Hector's dolphins meet the statutory definition of a threatened or
endangered species and thus warrant listing under the ESA. Therefore,
these comments are not relevant to this rulemaking. Furthermore,
regulation of swimming with wild Hector's dolphins is under the
exclusive jurisdiction of the government of New Zealand.
We also note that, as discussed in our proposed rule and status
review, several studies have demonstrated short-term behavioral changes
in SI Hector's dolphins in response to dolphin-watching tour boats and
`swim-with' activities (e.g., significant disruptions of diving and
travelling), and that any longer-term impacts are not yet clear. The
commenter provided no data or information to support the assertion that
such activities pose ``no harm'' to SI Hector's dolphins.
Comment 6: Over a dozen commenters requested that the United States
or U.S. citizens stop buying New Zealand fish until both Maui and SI
Hector's dolphins are protected throughout their ranges. Several
comments specifically referenced the Fish and Fish Product Import
Provisions of the Marine Mammal Protection Act and the associated
regulatory requirements for countries wishing to export fish to the
United States. One of these commenters stated that to meet these
requirements New Zealand will have to implement effective measures to
protect Maui and Hector's dolphins, including substantially improving
its fisheries management systems.
Response: This rulemaking concerns only whether Maui dolphins and
SI Hector's dolphins meet the statutory definition of a threatened or
endangered species and thus warrant listing under the ESA. Listing the
Maui dolphin and the SI Hector's dolphin under the ESA will not
directly result in a ban or prohibition on U.S. import of fish or fish
products from fisheries contributing to incidental mortality or serious
injury of Hector's dolphins. Such a ban cannot be established under the
authority of the ESA. Specific protections that will be provided to
Hector's dolphins following their listing under the ESA are discussed
below in the Effects of Listing section.
U.S. import of fish or fish products from a nation's fisheries with
associated incidental mortality or serious injury of marine mammals may
be subject to NMFS' recent regulation promulgated under the U.S. Marine
Mammal Protection Act (81 FR 54390, August 15, 2016). This regulation
established criteria and a formal process for evaluating foreign
fisheries and their frequency of incidental mortality and serious
injury of marine mammals. Additional information on this regulation and
its implementation are available online at www.fisheries.noaa.gov/ia/slider_stories/2016/08/mmpafinalrule.html.
Comment 7: Multiple commenters raised concerns about the impacts to
Hector's dolphins from offshore oil and gas development and alternative
energy projects. One commenter stated that there are concerns that
current seismic mapping will scare away Hector's dolphins on the east
coast of the South Island. Another commenter stated that we should
further consider emerging threats, including the potential offshore
expansion of renewable energy facilities. This commenter noted that
while her organization is not opposed to renewable energy projects and
that while relevant data are limited, the risks to Hector's dolphins
stemming from pile driving noise, collisions with tidal turbines,
increased marine traffic, vessel strikes, and habitat displacement
should not be dismissed. The commenter provided several studies
documenting the effects of wind farm construction and operation on
harbor porpoises within the Baltic Sea.
Response: We agree that seismic testing and other activities within
the
[[Page 43707]]
marine environment associated with oil and gas exploration and
development may be posing threats to Hector's dolphins. Our status
review (Manning and Grantz 2017) provided some discussion about the
possible impacts of these activities--for example, reductions in local
fish abundance (Eng[aring]s et al., 1996), disruption of normal
behaviors (Gordon et al., 2003; Thompson 2012), and habitat
displacement (Hildebrand 2005). However, we also acknowledged that the
extent to which Hector's dolphins are being negatively affected--both
individually and at a population level--has not yet been established
because there are insufficient data to evaluate impacts to Hector's
dolphins specifically. Thus, we cannot draw any firm conclusions
regarding the extent to which these activities are affecting Hector's
dolphins. We note that the Marine Mammal Impact Assessments, which are
prerequisite environmental assessments for conducting seismic testing
within New Zealand's EEZ (http://www.doc.govt.nz/our-work/seismic-surveys-code-of-conduct/marine-mammal-impact-assessments/), typically
conclude that impacts on marine mammals from seismic testing are
``minor.''
In response to the comment on marine renewable energy facilities
and projects, we reviewed the literature submitted and conducted a
search for additional information regarding these types of projects
within New Zealand. According to the national energy efficiency
strategy for 2017-2022, New Zealand has set a target of generating 90
percent of its electricity from renewable sources by the year 2025
(MBIE 2017). However, very little information is available regarding
specific renewable marine energy projects or associated impacts in New
Zealand. Tidal and wave energy development, in particular, appear to be
at a very nascent stage. The Energy Efficiency and Conservation
Authority (EECA) is New Zealand's government agency charged with
promoting energy efficiency, including the use of renewable sources of
energy. According to EECA's Web site, the agency provided funding to
support six wave or tidal projects from 2007 to 2011 but none of those
projects has proceeded past some initial stage. A tidal power project
has been proposed for the main channel of Kaipara Harbor, which lies
towards the northern edge of the Maui dolphin range; however, the
status of that facility is unclear. Within the range of SI Hector's
dolphins, as of 2011, two tidal energy projects were being pursued in
Cook Strait, and research and development to support a wave energy
project in Pegasus Bay was underway (Wright and Leary 2011). The
current status of these projects is also unclear. The EECA Web site
states that, given the relatively substantial expense of these
projects, the agency does not foresee marine energy as a major energy
contributor in New Zealand (see www.eeca.govt.nz). Wind energy appears
to be a more promising renewable energy source in New Zealand, and
according to the EECA, 19 wind farms are either operating or under
construction. However, none of these wind farms are in the marine
environment (see www.windenergy.org.nz). Therefore, at this time, there
is insufficient information to evaluate whether renewable marine energy
projects are currently posing a threat to Hector's dolphins, and there
is no clear indication that renewable energy projects will pose a
future threat to the dolphins or their habitat. We have revised our
status review report to include a discussion of renewable energy
development, but ultimately this information did not alter our
extinction risk conclusions for either subspecies.
Summary of Changes From the Proposed Listing Rule
We did not receive, nor did we find, data or references that
presented substantial new information to change our proposed listing
determinations. We did, however, make several revisions to the status
review report (Manning and Grantz 2017) to incorporate, as appropriate,
relevant information received in response to our request for public
comments. Specifically, we updated the status review to include the
more recently completed 2015-2016 abundance estimate for Maui dolphins
and associated results (e.g., survival rates, Baker et al., 2016).
Because this new abundance estimate still indicates a critically low
population abundance of 63 dolphins 1 year of age and older (95 percent
CI = 57-75; Baker et al., 2016) and is within the 95 percent confidence
interval of the previous estimate (N = 55, 95 percent CI = 48-69), it
did not alter the outcome of our risk assessment. We expanded our
discussion of population structure within the SI Hector's dolphin to
include the additional references provided by a commenter and made
minor edits to clarify our discussion on the rate of decline for this
subspecies. We also revised the status review report by adding a
discussion of the potential threat of marine alternative energy
projects to both Hector's and Maui dolphins. As noted above,
consideration of this additional, potential threat did not alter any
conclusions regarding extinction risk for either subspecies. Lastly, we
updated the spelling of the common name for C. hectori maui to Maui in
response to a peer reviewer's comment that this spelling more
appropriately reflects the Maori language from which the name was
derived.
Status Review
Status reviews for the Maui dolphin and the SI Hector's dolphin
were completed by NMFS staff from the Office of Protected Resources. To
complete the status reviews, we compiled the best available data and
information on the subspecies' biology, ecology, life history, threats,
and conservation status by examining the petition and cited references
and by conducting a comprehensive literature search and review. We also
considered information submitted to us in response to our petition
finding. The status review report provides a thorough discussion of the
life history, threats, demographic risks, and overall extinction risk
for both dolphin subspecies. The status review was subjected to peer
review by three, independent reviewers. All peer reviewer comments are
available at http://www.cio.noaa.gov/services_programs/prplans/ID351.html. The final status review report (cited as Manning and Grantz
2017) is available on our Web site http://www.nmfs.noaa.gov/pr/species/petition81.htm.
ESA Section 4(a)(1) Factors Affecting the Dolphins
As stated previously and as discussed in the proposed rule (81 FR
64110; September 19, 2016), we considered whether any one or a
combination of the five threat factors specified in section 4(a)(1) of
the ESA are contributing to the extinction risk of the Maui and SI
Hector's dolphins. Several commenters provided additional information
related to threats such as forms of habitat modification and
degradation, under-reporting of bycatch, and the projected population
decline of SI Hector's dolphins. The information provided was
consistent with or reinforced information in the status review report
and proposed rule, and thus, did not change our conclusions regarding
any of the section 4(a)(1) factors or their interactions. Therefore, we
incorporate herein all information, discussion, and conclusions
regarding the factors affecting the two dolphin subspecies from the
final status review report (Manning and Grantz 2017) and the
[[Page 43708]]
proposed rule (81 FR 64110; September 19, 2016).
Extinction Risk
As discussed previously, the status review evaluated the
demographic risks to both dolphin subspecies according to four
categories--abundance and trends, population growth/productivity,
spatial structure/connectivity, and genetic diversity. As a concluding
step, after considering all of the available information regarding
demographic and other threats to the subspecies, we rated each
subspecies' extinction risk according to a qualitative scale (high,
moderate, and low risk). Although we did update our status review to
incorporate the most recent abundance estimate for Maui dolphins and
information from two additional studies regarding population
fragmentation within SI Hector's dolphins, none of the comments or
information we received on the proposed rule changed the outcome of our
extinction risk evaluations for either subspecies. Our conclusions
regarding extinction risk for these subspecies remain the same.
Therefore, we incorporate herein all information, discussion, and
conclusions on the extinction risk of the two dolphin subspecies in the
final status review report (Manning and Grantz 2017) and proposed rule
(81 FR 64110; September 19, 2016).
Protective Efforts
In addition to regulatory measures (e.g., fishing and boating
regulations, sanctuary designations), we considered other efforts being
made to protect Hector's dolphins. We considered whether such
protective efforts altered the conclusions of the extinction risk
analysis for Maui and SI Hector's dolphins. None of the information we
received on the proposed rule affected our conclusions regarding
conservation efforts to protect the two dolphin subspecies. Therefore,
we incorporate herein all information, discussion, and conclusions on
the extinction risk of the two dolphin subspecies in the final status
review report (Manning and Grantz 2017) and proposed rule (81 FR 64110;
September 19, 2016).
Final Listing Determinations
The present estimated abundance of Maui dolphins is critically low,
and the subspecies faces additional demographic risks due to greatly
reduced genetic diversity and a low intrinsic population growth rate.
Past declines, estimated to be on the order of about 90 percent
(Martien et al., 1999, Slooten 2007a), are considered to have been
driven largely by bycatch in gillnets (Currey et al., 2012). Maui
dolphins continue to face threats of bycatch, disease, and mining and
seismic disturbances; and, it is considered unlikely that this
subspecies will recover unless sources of anthropogenic mortality are
eliminated (Slooten et al., 2006; MFish and DOC 2007b, Baker et al.,
2010). Based on the best available scientific and commercial
information, as summarized here, in our proposed rule (81 FR 64110;
September 19, 2016), and in the status review report (Manning and
Grantz 2017), and after consideration of protective efforts, we find
that the Maui dolphin (Cephalorhynchus hectori maui) is in danger of
extinction throughout its range. Therefore, we find that this
subspecies meets the definition of an endangered species under the ESA
and list it as such.
The SI Hector's dolphin has experienced substantial population
declines since the 1970s, has relatively low genetic diversity, a low
intrinsic population growth rate, and a fragmented population
structure. Although historical data are lacking, Slooten (2007a)
estimated that the SI Hector's dolphin population has declined by about
73 percent between 1970 and 2007, and available population viability
analyses indicate that the SI Hector's dolphin is likely to continue to
decline unless bycatch mortality is reduced (Davies et al., 2008,
Slooten and Davies 2012, Slooten 2013). Gormley et al. (2012) estimated
that the Banks Peninsula population, which has benefited from almost
three decades of protection, would continue to decline at a rate of
about 0.5 percent per year despite significantly improved survival
rates. The actual rate of decline of the subspecies remains unclear
given the very limited bycatch mortality data available, and a trend
analysis based on survey data is also confounded by the fact that
surveys have covered different portions of the range and have
dramatically increased in sophistication and geographical scope over
time. Thus, a precise analysis of the rate of decline and projection of
time to extinction given multiple threats and demographic
considerations is not currently possible. However, the available
evidence indicates that management measures have not halted population
declines and supports a conclusion that populations of SI Hector's
dolphins will continue to decline.
Current levels of bycatch are contributing to the decline of this
subspecies (Slooten and Davies 2012). Additional, lesser threats, such
as disease and tourism impacts, are likely exacerbating the rate of
decline and thereby contributing to the overall extinction risk of this
subspecies. Given recent abundance estimates for the total population
and evidence of a slowed rate of decline following expanded fisheries
management measures, we find that this subspecies is not presently in
danger of extinction. However, significant historical declines and the
projected decline for most populations, combined with a low population
growth rate, low genetic diversity, limited population connectivity,
and the ongoing threats of bycatch, disease, and tourism, provide a
strong indication that this subspecies is likely to become an
endangered species within the foreseeable future. We therefore find
that this subspecies meets the definition of threatened under the ESA
and list it as such.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include the development and implementation of
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if
prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and a requirement
that Federal agencies consult with NMFS under section 7 of the ESA to
ensure their actions are not likely to jeopardize the species or result
in adverse modification or destruction of designated critical habitat
(16 U.S.C. 1536). For endangered species, protections also include
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is
defined as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct'' (16
U.S.C. 1532(19)). These prohibitions do not apply to species listed as
threatened unless protective regulations are issued under section 4(d)
of the ESA (16 U.S.C. 1533(d)), leaving it to the Secretary's
discretion whether, and to what extent, to extend the ESA's
prohibitions to the species. 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.
Recognition of the species' imperiled status through listing may
also promote conservation actions by Federal and state agencies,
foreign entities, private groups, and individuals.
Activities That Would Constitute a Violation of Section 9 of the ESA
On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service
(USFWS) published a policy (59 FR 34272) that requires us to identify,
to the maximum
[[Page 43709]]
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.
The intent of this policy is to increase public awareness of the
potential effects of species listings on proposed and ongoing
activities.
Because we are listing the Maui dolphin as endangered, all of the
prohibitions of section 9(a)(1) of the ESA will apply to this
subspecies. Section 9(a)(1) includes prohibitions against the import,
export, use in foreign commerce, and ``take'' of the listed species.
These prohibitions apply to all persons subject to the jurisdiction of
the United States, including in the United States, its territorial sea,
or on the high seas. Activities that could result in a violation of
section 9 prohibitions for Maui dolphins include, but are not limited
to, the following:
(1) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any Maui dolphin or any of its parts, in
the course of a commercial activity;
(2) Selling or offering for sale in interstate commerce any part,
except antique articles at least 100 years old; and
(3) Importing or exporting Maui dolphins or any parts of these
dolphins.
Whether a violation results from a particular activity is entirely
dependent upon the facts and circumstances of each incident. Further,
an activity not listed here may in fact constitute a violation.
Identification of Those Activities That Would Not Likely Constitute a
Violation of Section 9 of the ESA
Although the determination of whether any given activity
constitutes a violation is fact dependent, we consider the following
actions, depending on the circumstances, as being unlikely to violate
the prohibitions in ESA section 9 with regard to Maui dolphins: (1)
Take authorized by, and carried out in accordance with the terms and
conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for
purposes of scientific research or the enhancement of the propagation
or survival of the species; and (2) continued possession of Maui
dolphins or any parts that were in possession at the time of listing.
Such parts may be non-commercially exported or imported; however, the
importer or exporter must be able to provide evidence to show that the
parts meet the criteria of ESA section 9(b)(1) (i.e., held in a
controlled environment at the time of listing, in a non-commercial
activity).
Section 11(f) of the ESA gives NMFS the authority to promulgate
regulations that may be appropriate to enforce the ESA. Thus, we could
promulgate future regulations to regulate trade or holding of Maui
dolphins. However, we do not foresee a necessity for such regulations
at this time.
Protective Regulations Under Section 4(d) of the ESA
Because we are listing the SI Hector's dolphins as threatened, the
prohibitions under section 9 of the ESA will not automatically apply to
this subspecies. As stated above, ESA section 4(d) leaves it to the
Secretary's discretion whether, and to what extent, to extend the
section 9(a) prohibitions to threatened species, and authorizes us to
issue regulations that are deemed necessary and advisable to provide
for the conservation of the species. Because SI Hector's dolphins occur
entirely outside of the United States, and are not commercially traded
with the United States, extending the section 9(a) prohibitions to this
subspecies will not result in added conservation benefits or species
protection, particularly given the fact that such trade is already
generally prohibited under the Marine Mammal Protection Act (16 U.S.C.
1372). Therefore, we do not intend to issue section 4(d) regulations
for SI Hector's dolphins at this time.
Section 7 Consultation Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and joint NMFS/
USFWS regulations require Federal agencies to consult with NMFS 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 subspecies under the ESA will increase the number of
section 7 consultations, because these subspecies occur outside of the
United States and are unlikely to be affected by U.S. 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 if such areas are determined to be 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 cannot be designated in foreign
countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)).
Maui and SI Hector's dolphins are endemic to New Zealand and do not
occur within areas under U.S. jurisdiction. There is no basis to
conclude that any unoccupied areas under U.S. jurisdiction are
essential for the conservation of either subspecies. Therefore, we do
not intend to propose any critical habitat designations for either
subspecies.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing a
minimum peer review standard. We solicited peer review comments on the
draft status review report from three scientists with expertise on
Hector's dolphins. We received and reviewed comments from these
scientists, and, prior to publication of the proposed rule, their
comments were incorporated into the draft status review report (Manning
and Grantz 2016), which was then made available for public comment. As
stated earlier, peer reviewer comments on the status review are
available at http://www.cio.noaa.gov/services_programs/prplans/ID351.html.
References
A complete list of the references used is available upon request
(see ADDRESSES).
Classification
National Environmental Policy Act
Section 4(b)(1)(A) of the ESA restricts the information that may be
considered when assessing species for listing and sets the basis upon
which listing determinations must be made. Based on the requirements in
section 4(b)(1)(A) of the ESA 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
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
[[Page 43710]]
Flexibility Act are not applicable to the listing process.
In addition, this rule is exempt from review under Executive Order
12866.
Paperwork Reduction Act
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
50 CFR Part 223
Endangered and threatened species, Exports, Transportation.
50 CFR Part 224
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: September 14, 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 parts 223 and 224
are 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. Sec. 223.201-
202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, amend the table in paragraph (e) by adding a new
entry under ``Marine Mammals'' in alphabetical order, by common name,
to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
Dolphin, Hector's........... Cephalorhynchus Entire [Insert Federal NA NA
hectori subspecies. Register page
hectori. where the
document
begins],
September 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).
* * * * *
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
3. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
4. In Sec. 224.101, amend the table in paragraph (h) by adding a new
entry under ``Marine Mammals'' in alphabetical order, by common name,
to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Dolphin, Maui............... Cephalorhynchus Entire [Insert Federal NA NA
hectori maui. subspecies. Register page
where the
document
begins],
September 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).
* * * * *
[FR Doc. 2017-19903 Filed 9-18-17; 8:45 am]
BILLING CODE 3510-22-P