[Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)]
[Rules and Regulations]
[Pages 3023-3031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00943]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 151120999-5999-01]
RIN 0648-XE328
Endangered and Threatened Wildlife and Plants; Final Listing
Determinations on Proposal To List the Banggai Cardinalfish and
Harrisson's Dogfish 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: In response to a petition, we, NMFS, issue a final rule to
list the Banggai cardinalfish (Pterapogon kauderni) as a threatened
species under the Endangered Species Act (ESA). We have also determined
that the proposed listing of Harrisson's dogfish shark (Centrophorus
harrissoni) as a threatened species is not warranted at this time. We
will not designate critical habitat for Banggai cardinalfish because
the geographical areas occupied by this species are entirely outside
U.S. jurisdiction, and we have not identified any unoccupied areas
within U.S. jurisdiction that are currently essential to the
conservation of this species.
DATES: This final rule is effective February 19, 2016.
ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910,
USA.
FOR FURTHER INFORMATION CONTACT: Therese Conant or Maggie Miller, NMFS,
Office of Protected Resources, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2013, we received a petition from WildEarth Guardians
to list 81 marine species as threatened or endangered under the
Endangered Species Act (ESA). We found that the petitioned actions may
be warranted for 27 of the 81 species and announced the initiation of
status reviews for each of the 27 species (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
December 16, 2014, we published a proposed rule to list the dusky sea
snake (Aipysurus fuscus) and three foreign corals (Cantharellus
noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered
species, and we proposed to list the Banggai cardinalfish (Pterapogon
kauderni) and Harrisson's dogfish (Centrophorus harrissoni) as
threatened species (79 FR74953). We requested public comment on
information in the status reviews and proposed rule through February
17, 2015. This final rule provides a discussion of the information we
received during the public comment period and our final determination
on the petition to list the Banggai cardinalfish (Pterapogon kauderni)
and Harrisson's dogfish (Centrophorus harrissoni) under the ESA. Our
final determinations for the other species proposed for listing in the
December 16, 2014, proposed rule (dusky sea snake and three foreign
corals) were made in a prior rule (80 FR 60560). The status of the
findings and relevant Federal Register notices for those and the other
21 species can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.
We are responsible for determining whether species are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this
determination, we consider first whether a group of organisms
constitutes a ``species'' under the ESA, then whether the status of the
species qualifies it for listing as either threatened or endangered.
Section 3 of the ESA defines a ``species'' to include ``any subspecies
of fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature.''
Section 3 of the ESA defines an endangered species as ``any species
which is in danger of extinction throughout all or a significant
portion of its range'' and a threatened species as one ``which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' We interpret an
``endangered species'' to be one that is presently in danger of
extinction. A ``threatened species,'' on the other hand, is not
presently in danger of extinction, but is likely to become so in the
foreseeable future (that is, at a later time). In other words, the
primary statutory difference between a threatened and an 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, 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
[[Page 3024]]
account efforts being made by any state or foreign nation to protect
the species.
In making a listing determination, we first determine whether a
petitioned species meets the ESA definition of a ``species.'' Next,
using the best available information gathered during the status review
for the species, we complete a status and extinction risk assessment.
In assessing extinction risk for these two species, we consider the
demographic viability factors developed by McElhany et al. (2000) and
the risk matrix approach developed by Wainwright and Kope (1999) to
organize and summarize extinction risk considerations. The approach of
considering demographic risk factors to help frame the consideration of
extinction risk has been used in many of our status reviews, including
for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod,
Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks,
and black abalone (see 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 according to
four demographic viability factors: Abundance, growth rate/
productivity, spatial structure/connectivity, and diversity. These
viability factors reflect concepts that are well-founded in
conservation biology and that individually and collectively provide
strong indicators of extinction risk.
We then assess efforts being made to protect the species, to
determine if these conservation efforts are adequate to mitigate the
existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary,
when making a listing determination for a species, to take into
consideration those efforts, if any, being made by any State or foreign
nation to protect the species.
Summary of Comments
In the solicitation for information from the public on the proposed
rule, we received information and/or comments on the Banggai
cardinalfish and Harrisson's dogfish proposals from 13 parties. These
comments are broken out by species and summarized below.
Banggai Cardinalfish
Twelve commenters submitted information and/or commented on the
proposed listing of the Banggai cardinalfish.
Comment 1: One commenter felt that instead of listing under the
ESA, the Banggai cardinalfish would derive a greater benefit if we
would engage in direct talks and support for Indonesia's internal
efforts to conserve the species. The commenter also felt that continued
efforts to list the species under the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) should be
undertaken.
Response: We were petitioned to list the Banggai cardinalfish and
found that the petitioned action may be warranted for the species (see
Background). Thus, we are required to review the best available
scientific and commercial data to determine whether the species is
threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). We
agree that Indonesia's efforts to conserve and protect the Banggai
cardinalfish are essential to the long-term viability of the species
and should be supported. The ESA recognizes the international
instruments, including CITES, to conserve and protect various species.
Further, the ESA calls for a suite of engagements to enhance
international cooperation with foreign nations where listed species
occur. Through the ESA, we are encouraged to work with foreign
countries to enter into bilateral or multilateral agreements to provide
for conservation of species. Regarding CITES, in 2007, due to
overharvest concerns, the Banggai cardinalfish was proposed to be
listed under CITES Appendix II. Appendix II includes species that are
vulnerable to overexploitation, but not at risk of extinction under
CITES criteria; trade must be regulated to avoid exploitation rates
that are incompatible with species survival. Indonesia did not support
the proposal and it was withdrawn. The next Conference of the Parties
(COP) will be held in 2016. The United States has not determined which
species it will propose for listing at the next COP. The United States
has a public process to determine which species it will propose.
Comment 2: One commenter stated that requiring the aquarium trade
to only buy captive-bred or maricultured specimens through a section
4(d) protective regulation would not control commercial trade in wild-
caught fish because there is no way to discern a captive-bred or
maricultured specimen from a wild-harvested one.
Response: We agree that identifying a captive-bred from a wild-
harvested fish would be difficult. We have not decided which, if any,
of the section 9 prohibitions to apply to the Banggai cardinalfish. We
intend to announce an advance notice of proposed rulemaking to solicit
public comment and information on any section 4(d) protective
regulation, if proposed, for the Banggai cardinalfish.
Comment 3: Many commenters felt that the data do not support a
listing under the ESA. Rather, they stated that the Banggai
cardinalfish should be listed as a species of concern. They recommended
continued data collection on population trends and structure,
stratified by habitat in both the historical and introduced ranges,
establishment of a sampling regime to quantify habitat trends in
abundance and quality, studies of the Banggai cardinalfish's use of
alternative microhabitats, and consultations with the Republic of
Indonesia on current and future management plans for wild harvest and
captive propagation. One commenter felt the population abundance
transect surveys need to be standardized, given the species' patchy
distribution and variable density. They felt this was necessary for
future evaluations on the species' population status and trends.
However, they agreed with the overall conclusion that abundance has
declined due to unsustainable harvest in the early years. One commenter
recommended we extend the period to make a final determination, citing
a lack of data to support the proposed listing and the need to solicit
additional data.
Response: We disagree that the data are insufficient to make a
listing determination. Data exist on the Banggai cardinalfish's
biology, population structure, abundance, trends, habitat use and
threats that were reported in the proposed rule and the status review.
We agree that standardized surveys across years would be ideal.
However, the existing data indicate an overall population decline, and
decreases in population density are also evidenced by significant
declines in the catch per unit effort. Prior to 2003, collectors from
Bone Baru typically required one day to capture approximately 2,000
specimens. In 2007, they reported requiring one week to capture the
same number. For Banggai Island, reported mean catch declined from
about 1,000 fish/hour in 2000 to 25-330 fish/hour in 2004. Extirpations
of populations within the Banggai cardinalfish's natural range have
occurred. In particular, extirpation of local populations has been
documented in areas with increased harvest of microhabitat, such as
Diadema sea urchins and sea anemones, combined with fishing pressure on
Banggai cardinalfish. Further fragmentation of an already small endemic
population, which exhibits high genetic population substructuring,
increases the extinction risk for the Banggai cardinalfish.
Comment 4: One commenter felt that the species' life history
represents an adaptation of a small-bodied fish to its physical
environment (i.e., shallow
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waters separated by deep channels with swift currents). They contend
that its early maturity, low fecundity, and extended parental care are
manifestations of a reproductive strategy in a physically limited
environment. They state that situational cannibalism is further
evidence of a behavior adapted to maintain abundance within the
carrying capacity of its microhabitat-oriented habitat. Therefore, they
do not concur with the assertion that these characteristics lower
Banggai cardinalfish resilience.
Response: While we agree the Banggai cardinalfish life history
characteristics are likely adaptive, we disagree that these traits do
not render the species less resilient and vulnerable to threats. The
Banggai cardinalfish lacks dispersal ability and exhibits high site
fidelity, and new recruits stay within parental habitat. Thus,
population discreteness is high and recolonization is unlikely once a
local population is extirpated. Local populations off Liang Island,
Peleng Island, and Masoni Island are reported extirpated, and
interviews with local fishermen indicate extirpation of local
populations throughout the Banggai Archipelago.
Comment 5: Several commenters provided information on their shift
from purchasing wild-harvest to mariculture specimens, including from
domestic facilities. Many commenters felt that directed harvest for the
live marine ornamental reef fish trade no longer poses a significant
threat to the Banggai cardinalfish.
Response: We appreciate the information submitted, as it supports
the proposed rule's statement that Banggai cardinalfish exports for the
ornamental live reef fish trade may be decreasing, although systematic
data are lacking. We reported that the large-scale aquaculture facility
based in Thailand and efforts to captive-breed the species in the
United States may alleviate some of the pressure to collect fish from
wild populations, but the degree to which aquaculture would affect
harvest of wild populations is unknown. As we explain in more detail in
the response to the next comment, the evidence shows that directed
harvest for the live marine ornamental reef fish trade and harvest of
microhabitat remain concerns.
Comment 6: One commenter felt that the improved harvest practices,
development of significant aquaculture production, and Indonesian
management initiatives undertaken since 2007 were not fully considered
in the proposed rule.
Response: We disagree. All section 4(a)(1) factors that are found
to pose an extinction risk to the Banggai cardinalfish, as well as
ongoing conservation efforts and other mitigating factors, were
considered in the proposed rule. In the proposed rule, we considered
the improved harvest practices, the increasing aquaculture facilities,
and the local management initiatives under these factors. If the
species is endangered or threatened with extinction because of any one
of the 4(a)(1) factors, then we must determine that listing is
warranted. In our synthesis of the extinction risk to the Banggai
cardinalfish, we stated that overutilization from direct harvest for
the ornamental live reef fish trade has significantly impacted the
Banggai cardinalfish and remains a concern. We further stated an
increase in compliance with the Fish Quarantine regulations and
improved trade practices have occurred in recent years, and we
anticipated compliance and trade practices will likely continue to
improve in the future, which may mitigate impacts through sustainable
trade. However, since the proposed rule, interviews were held in March
2015 with Indonesian government officials and Banggai cardinalfish
collectors. The interviews were conducted by Dr. Vagelli, New Jersey
Academy for Aquatic Sciences, who served as a peer reviewer
(Information Quality Act, Pub. L. 106-554) for the Banggai cardinalfish
status review. The March 2015 report (Vagelli unpublished report 2015)
is available upon request (see FOR FURTHER INFORMATION CONTACT).
Indonesian officials and collectors reported that compliance with the
Fish Quarantine regulations was largely voluntary and that improved
trade practices had not been implemented (Vagelli unpublished report
2015). Thus, reports are conflicting on whether compliance and trade
practices have improved and are likely to improve in the future.
Participation in collection of Banggai cardinalfish for the live
ornamental reef trade has dropped in recent years. Captive-bred
facilities have recently started in the United States and Thailand and
are anticipated to decrease the threat of directed harvest of the wild
populations in the future, but the degree to which aquaculture would
affect harvest of wild populations is unknown. Data also indicate that
by 2007, harvest of microhabitat (sea urchins and sea anemones) had
negatively impacted cardinalfish populations, and the harvest had
increased by 2011, and will continue in the future, which negatively
impacts Banggai cardinalfish and their ability to avoid predators.
Overutilization from direct harvest for the ornamental live reef fish
trade has significantly impacted the Banggai cardinalfish and remains a
concern. Data from several sources reported an increase in compliance
with the Fish Quarantine regulations and improved trade practices, but
an updated survey in 2015 reported voluntary compliance and a lack of
improved trade practices. For these reasons, we conclude that directed
harvest for the live marine ornamental reef fish trade harvest and
harvest of microhabitat remain concerns.
Comment 7: One commenter stated that the introduced populations in
Palu Bay and Luwuk Harbor must be considered in the listing process.
Response: We considered these introduced populations. The
introduced populations are an artifact of the commercial ornamental
live reef trade and are not part of any conservation program to benefit
the native populations. The introduced populations were introduced
through the practice of high-grading (i.e., discarding live specimens
determined to be of low quality/non saleable) or escapement near trade
centers for the ornamental live reef market. The introduced population
at Lembeh Strait is considered invasive and may be impacting local
diversity through interspecific competition for resources in the area,
but specific data on ecological impacts are lacking. Because one of the
purposes of the ESA is to provide a means whereby the ecosystems upon
which endangered and threatened species depend may be conserved (16
U.S.C. 1531(b)), we consider a species' natural range to be
biologically and ecologically important to the species' viability to
persist in the face of threats. The introduced populations are outside
of the Banggai cardinalfish's natural range and may not contribute to
the species' ability to persist and therefore were not included in the
analysis of the overall extinction risk to the species.
Comment 8: One commenter disagreed with the statement in the
proposed rule that designation of critical habitat was not proposed for
any of the species, including the Banggai cardinalfish, because
critical habitat shall not be designated in foreign countries or other
areas outside U.S. jurisdiction (50 CFR 424.12(h)). The commenter
argued that we should construe areas under U.S. ``jurisdiction,'' as
used in Sec. 424.12(h), to include Taiwan and areas under U.S.
military protection. The commenter cited multiple sections in U.S. Code
Title 22, Foreign Relations and Intercourse, and referenced ``U.S. Navy
[[Page 3026]]
Okinawan Dugong litigation'' without citation.
Response: We found one line of cases involving the Department of
Defense and the Okinawa dugong (Ctr. for Biological Diversity v. Hagel,
80 F. Supp. 3d 991 (N.D. Cal. 2015); Okinawa Dugong v. Gates, 543
F.Supp.2d 1082 (N.D. Cal. 2008); Okinawa Dugong v. Rumsfeld, No. 03-
4350, 2005 WL 522106 (N.D. Cal. Mar. 2, 2005) (unpublished)). These
cases interpret specific provisions of the National Historic
Preservation Act, not the ESA, and have no bearing on interpretation or
application of 50 CFR 424.12(h). We also note that the Banggai
cardinalfish's natural historical and present range does not occur
within the area mentioned by the commenter, and therefore, the question
of critical habitat designation is irrelevant.
Harrisson's Dogfish
We received a single submission on the proposal to list Harrisson's
dogfish from the Australian Government Department of the Environment.
We briefly summarize their comments below and respond with references
to our prior documents where relevant.
Comment 9: The proposal to list Harrisson's dogfish suggests that
lower catches in recent years reflect a decreasing population. This
conclusion appears not to have taken into account restrictive catch
limits for Harrisson's dogfish in the last five years in the Southern
and Eastern Scalefish and Shark Fishery (SESSF). Since 2010, a limit of
15 kg per day of Harrisson's dogfish has been implemented, which has
contributed to reductions in catch rates by stopping targeted fishing
and encouraging active avoidance of dogfish.
Response: The text in the proposed rule, to which this comment
refers, states ``However, even before the prohibition, reported catch
rates of Harrisson's dogfish in the SESSF have been minimal in recent
years, likely due to the low abundance of the species on the
continental margin where the fisheries operate.'' While we agree that
the 2010 catch limit does, in part, contribute to the observed low
catches of the species, we would like to point out that even before the
2010 catch limit, C. harrissoni catches were rare. According to Walker
et al. (2009), annual catches of Harrisson's dogfish in the SESSF from
2000-2006 were <1 t. Catches of all gulper sharks (C. harrissoni, C.
moluccensis, C. zeehaani) have also been decreasing since the mid-1990s
(Georgeson et al. 2014). Given that Harrisson's dogfish's relative
abundance on the upper-slope is estimated to have declined by over 99
percent between 1976-77 and 1996-97 (Graham et al. 2001), we find that
the minimal catches of the species, even prior to 2010, are more likely
a reflection of the low abundance and rarity of the species on the
continental margin.
Comment 10: The proposal to list Harrisson's dogfish notes that
there is potentially high at-vessel mortality of Harrisson's dogfish in
auto-longline (ALL) gear and cites to Williams et al. (2013a). However,
the proposal does not appear to have considered tagging studies, which
indicate post-capture survival rates on ALL gear to be between 65 and
95 percent, potentially downgrading capture on longline to a lower risk
method (Williams et al. 2013a).
Response: The Status Review Report (Miller 2014), upon which the
proposed rule for Harrisson's dogfish was based, discusses the
potential for high at-vessel mortality in ALL gear. Citing the Williams
et al. (2013a) paper, Miller (2014) notes that mortality of Harrisson's
dogfish after capture on ALL gear ranged from 4 percent (if estimates
included only confirmed dead sharks immediately after capture) to as
high as 73 percent (if estimates included sharks that swam away slowly
after capture, indicating stress or shock, as potential mortalities).
The comment above appears to refer to the estimates of post capture
survival on ALL gear from tagging studies on a different gulper
species, the Southern dogfish (C. zeehaani), as reported in Williams et
al. (2013a) which further cited Williams et al. (2012). Based on
detections from 70 tagged Southern dogfish, post-capture mortality rate
was estimated to be low, around 3 to 16 percent (Williams et al.
2013a). However, as part of this tagging study, steps were taken to
maximize survivorship (such as restricting soak times to 2-4 hours and
careful de-hooking and handling of the sharks) that may not be followed
during commercial fishing operations (Williams et al. 2012). In fact,
Williams et al. (2012) notes that soak times of up to 13.45 hours are
more common during normal commercial fishing operations. Given the
methods taken to maximize survivorship, as well as the fact that the
study focused on Southern dogfish, we find that the estimates reported
in Williams et al. (2012; 2013a) and referred to by the commenters may
not be an accurate representation of post-capture survivorship for
Harrisson's dogfish on ALL gear. As such, we find no reason to change
our initial characterization of risk from incidental capture on ALL
gear.
Comment 11: Since the publication of the proposed rule, there has
been a reduction in ALL effort in the SESSF, with one boat leaving the
fishery. There are now only two dedicated longline boats remaining in
the fishery, as opposed to the three vessels considered in the proposed
listing. Both of the remaining vessels have now been fitted with
electronic monitoring systems which are required to monitor all fishing
operations. This allows assessment of dogfish handling practices, as
well as evaluation of the effectiveness of the industry code of
conduct.
Response: We appreciate the new information and have updated the
status review accordingly. After review, we do not find that the
removal of this single vessel from the fishery would significantly
change the overall conclusions of the extinction risk analysis.
Status Reviews
Status reviews for the petitioned species addressed in this finding
were conducted by NMFS staff. Separate draft status reviews were
completed for the Banggai cardinalfish (Conant 2014) and Harrisson's
dogfish (Miller 2014). In order to complete the status reviews, we
compiled information on the species' biology, ecology, life history,
threats, and conservation status from information contained in the
petition, our files, a comprehensive literature search, and
consultation with experts. We also considered information submitted by
the public and peer reviewers. Prior to publication of the proposed
rule, all status reviews were subjected to peer review. Peer reviewer
comments are available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.
The status review reports provide a thorough discussion of life
history, demographic risks and threats to the particular species. We
considered all identified threats, both individually and cumulatively,
to determine whether the species responds in a way that causes actual
impacts at the species level. The collective condition of individual
populations was also considered at the species level, according to the
four demographic viability factors discussed above.
The proposed rule (79 FR 74953, December 16, 2014) summarizes
general background information on the natural history, range,
reproduction, population structure, distribution and abundance of the
Banggai cardinalfish and Harrisson's dogfish. All of that information
is incorporated herein by reference. In addition, an update on the
Banggai
[[Page 3027]]
cardinalfish population abundance and conservation efforts (Vagelli
unpublished report 2015) is available upon request (see FOR FURTHER
INFORMATION CONTACT).
Species Determinations
Based on the best available scientific and commercial information
described above and in the status review reports, we have determined
that the Banggai cardinalfish (Pterapogon kauderni) and Harrisson's
dogfish (Centrophorus harrissoni) are taxonomically-distinct species
and therefore meet the definition of ``species'' pursuant to section 3
of the ESA and are eligible for listing under the ESA.
Summary of Threat Factors Affecting the Two Species
Next we considered whether any one or a combination of the five
threat factors specified in section 4(a)(1) of the ESA contribute to
the extinction risk of these species. For Harrisson's dogfish, none of
the information we received from public comment on the proposed rule
affected our discussion or conclusions regarding any of the section
4(a)(1) factors or their interactions, so we incorporate the discussion
of these factors from the proposed rule (79 FR 74953, December 16,
2014) by reference herein. For the Banggai cardinalfish, the report
received from the peer review on the Banggai cardinalfish status review
indicated that compliance with the Fish Quarantine regulations was
largely voluntary and that improved trade practices had not been
implemented (Vagelli unpublished report 2015). Thus, we are less
certain that compliance and trade practices will improve in the future
under the ``inadequacy of existing regulatory mechanisms'' threat
factor.
Extinction Risk
None of the information we received from public comment on the
proposed rule affected our extinction risk evaluation of Harrisson's
dogfish. As such, our evaluation remains the same as in the original
status review report and the discussion in the proposed rule (79 FR
74953, December 16, 2014), and that discussion is incorporated herein
by reference. For the Banggai cardinalfish, as stated above, the report
received from the peer review on the Banggai cardinalfish status review
indicated that compliance with the Fish Quarantine regulations was
largely voluntary and that improved trade practices had not been
implemented (Vagelli unpublished report 2015). Thus, we are less
certain that compliance and trade practices will improve in the future.
However, the updated information on the inadequacy of existing
regulatory mechanisms did not result in a higher risk of extinction
because we previously had considered that enforcement was weak, and
illegal, unregulated, and unreported capture and trade were still a
major problem in the extinction risk assessment (Conant 2014).
Conservation Efforts
Finally, we considered conservation efforts to protect each species
and evaluated whether these conservation efforts are adequate to
mitigate the existing threats to the point where extinction risk is
significantly lowered and the species' status is improved. None of the
information we received from public comment on the proposed rule
affected any of our discussion or conclusions regarding conservation
efforts to protect Banggai cardinalfish, so we incorporate the
discussion of these efforts from the proposed rule (79 FR 74953,
December 16, 2014) by reference herein.
For Harrisson's dogfish, we specifically requested information
during the public comment process on the conservation efforts that were
identified in the proposed rule (79 FR 74953; December 16, 2014) and
their certainty of implementation and effectiveness. We received no
comments or information on our conclusions regarding the effectiveness
of the conservation efforts. As such, our discussion and conclusion
from the proposed rule remains the same (and is incorporated herein by
reference); namely, that the implemented conservation efforts are
likely to improve the present status of the species by effectively
decreasing the threat of overutilization by fisheries in the near term
to the point where the species is no longer presently in danger of
extinction.
We did receive information on the other aspect of our evaluation of
conservation efforts, namely, the certainty of implementation of these
conservation efforts. Specifically, we received information from the
Australian Government, the organization in charge of implementing the
conservation efforts. This information, as well as additional
information collected during the comment period and our analysis of
this new information, is discussed below.
Certainty of Implementation of Conservation Efforts to Protect
Harrisson's Dogfish
In the proposed rule (79 FR 74954), we concluded that the
regulatory measures from the Upper-Slope Dogfish Management Strategy
(the ``Strategy''; see AFMA, 2012), which the Australian Fisheries
Management Authority (AFMA) implemented for the conservation of the
species, were likely to be effective in improving the present status of
the species. However, we also noted in the proposed rule that the
certainty of the conservation efforts remaining in place after 5 years
could not be predicted at this time. As such, we concluded that the
time frame over which the conservation efforts would certainly be in
place was insufficient to increase the species' chances of survival or
prevent its extinction through the foreseeable future.
Our conclusion was primarily based on our understanding that the
legal instrument (i.e., the ``SESSF Fishery Closures Direction No. 1
2013'') used to implement the conservation efforts within the Strategy
expires in 5 years, with no certainty of implementation of conservation
efforts past this point in time. Additionally, we interpreted the
listing of the species as ``conservation dependent'' under Australia's
Commonwealth Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) to mean that it is not afforded protection by the EPBC
Act because it is not considered to be a ``matter of national
significance.'' However, upon review of the information received from
the Australian Government, as well as information we collected during
the comment period, briefly discussed below, we now have a high degree
of certainty that conservation efforts will continue to be implemented
beyond a 5-year period.
In Australia, Commonwealth fisheries are managed by AFMA, which is
governed by the legislative objectives in Australia's Fisheries
Management Act 1991 (FM Act). One of AFMA's main legislative objectives
under the FM Act is ``Ensuring that the exploitation of fisheries
resources and the carrying on of any related activities are conducted
in a manner consistent with the principles of ecologically sustainable
development (which include the exercise of the precautionary
principle), in particular the need to have regard to the impact of
fishing activities on non-target species and the long-term
sustainability of the marine environment'' (FM Act subsection 3(1)(b)).
In addition, AFMA also has the objective of ``Ensuring, through proper
conservation and management measures, that the living resources of the
AFZ [Australian Fishing Zone] are not endangered by over-exploitation''
(FM Act subsection 3(2)(a)).
[[Page 3028]]
In 1999, the EPBC Act was passed and is considered to be the key
legislation for conserving the biodiversity of Australian ecosystems
and protecting the natural environments that support these ecosystems.
Broadly, the EPBC Act requires that fishing actions do not have a
significant impact on the Commonwealth marine environment, including
protected species or ecological communities. Objectives of the EPBC Act
include providing for the protection of the environment, especially
matters of national environmental significance (which includes
Commonwealth marine areas), conserving Australian biodiversity, and
promoting ecologically sustainable development through the conservation
and ecologically sustainable use of natural resources.
Part of AFMA's obligations under the EPBC Act is the requirement to
prepare strategic assessment reports for all Commonwealth fisheries,
particularly those with an export component. These reports are prepared
to address the Australian Government's Guidelines for the Ecologically
Sustainable Management of Fisheries--2nd Edition, which specifies
principles and objectives designed to ensure a strategic and
transparent way of evaluating the ecological sustainability of fishery
management measures. These reports also provide updates on the
implementation of conditions and recommendations from the previous
assessments of the fishery. These reports are then submitted to and
assessed by Australia's Department of Environment for accreditation.
The Department of the Environment ultimately evaluates the
environmental performance of fisheries, including: The strategic
assessment of fisheries under Part 10 of the EPBC Act; assessments
relating to impacts on protected marine species under Part 13 of the
EPBC Act; and assessments for the purpose of export approval under Part
13A of the EPBC Act.
This accreditation process is extremely important for the SESSF. As
noted in the proposed rule, Harrisson's dogfish are primarily caught as
bycatch by the SESSF, which operates over an extensive area of the AFZ
around eastern, southern, and southwestern Australia. In fact, the
management area covers almost half of the AFZ (Georgeson et al. 2014).
In 2012-2013, the SESSF was the largest commonwealth fishery in terms
of production value, and also the most valuable, with a gross value of
production (GVP) of $91.8 million (28 percent of the total GVP for
Commonwealth fisheries) (Georgeson et al. 2014). As such, ensuring that
the SESSF is managed in an ecologically sustainable way so that
commercial export of Australian native wildlife from this fishery may
continue appears to be a priority for the Australian Government.
The most recent assessment of the SESSF occurred in 2013, before
the EPBC Act listing of Harrisson's dogfish. However, in recognition of
the decline in Harrisson's dogfish and the potential impacts that
continued SESSF operations may have on the shark, the Department of
Environment recommended that the accreditation be subject to a number
of conditions that must be addressed by AFMA within the period of the
approved wildlife trade operation declaration for the fishery. For
Harrisson's dogfish, these conditions were: (1) Implement long-term
management measures, including fisheries closures and other actions,
that are clearly directed towards stopping the decline and supporting
the recovery of Harrisson's dogfish and southern dogfish, and (2)
continue, in consultation with relevant experts, to monitor and review
the adequacy of management measures designed to stop the decline and
support the recovery of Harrisson's dogfish and southern dogfish
(Department of Environment 2013). On February 25, 2013, Australia's
Minister for the Environment officially declared the harvest operations
of the SESSF an approved wildlife trade operation but subject to a
number of conditions, including the ones concerning Harrisson's dogfish
stated above (Commonwealth of Australia Gazette S 30; 25 February
2013). This approval is valid until February 25, 2016, at which point
the SESSF will have to be re-assessed to ensure the sustainability of
the fishery, including AFMA's progress on meeting the conditions from
the approval declaration.
The state-managed New South Wales Ocean, Trap, and Line Fishery
(OTLF) and Ocean Trawl Fishery (OTF) also potentially bycatch
Harrisson's dogfish and were assessed in March and May 2014,
respectively, after Harrisson's dogfish was listed as conservation
dependent under the EPBC Act. Similar to the conditions set forth for
the SESSF accreditation, the OTLF and OTF are also subject to
conditions for protecting Harrisson's dogfish. Specifically, the New
South Wales Department of Primary Industries, in consultation with
AFMA, must: (1) Maintain long-term management measures that are clearly
directed towards stopping the decline and supporting the recovery of
Harrisson's dogfish and southern dogfish, and (2) continue, in
consultation with relevant experts, to monitor and review the adequacy
of management measures designed to stop the decline and support the
recovery of Harrisson's dogfish and southern dogfish (Commonwealth of
Australia Gazette C2014G00735; 8 May 2014 (OTLF); C2014G01029; 20 June
2014 (OTF)). These approvals are valid for 3 years, after which, again,
the fisheries must be re-assessed to ensure ecological sustainability.
If any of these fisheries fail to follow the conditions set forth in
the wildlife trade operation declaration, then they would be prohibited
from exporting products derived from the fishery, essentially shutting
down the fishery operations.
To meet the approval conditions and satisfy the management
requirements for a conservation dependent listing under the EPBC Act
(TSSC 2013), AFMA identified and implemented fishery management
measures in the Strategy that were deemed necessary to stop the decline
of, and support the recovery of, the species so that its chances of
long term survival in nature are maximized. In the proposed rule, we
determined that these conservation efforts would be effective at
preventing the extinction of Harrisson's dogfish (see 79 FR 74954,
discussion of Harrisson's Dogfish Protective Efforts). These measures
have ultimately been given legal effect through legislative instruments
under the FM Act, including the Fishery Closure Direction (``SESSF
Fishery Closures Direction No. 1 2013''). Although the current closure
direction will expire in 5 years (which is the longest time period that
closure directions are in effect; G. Day, AFMA, personal communication
2014), the objectives of and requirements under the FM Act and the EPBC
Act (as stated above) compel ongoing management measures to be
implemented to protect Harrisson's dogfish from extinction through the
foreseeable future.
To assist with these ongoing conservation efforts, AFMA published
the ``Upper-Slope Dogfish Management Strategy Research and Monitoring
Workplan,'' (``Workplan''; AFMA 2014) which uses the principles of
adaptive management to assess the effectiveness of the Strategy in
stopping the decline of and promoting the rebuilding of Harrisson's
dogfish. According to the Workplan, the scheduled periodic reviews of
its outcomes ``provides for a feedback loop whereby arrangements in the
Strategy can be adapted as necessary to meet developments in the
fishery and the improved understanding of Harrisson's dogfish biology
and stock structure'' (AFMA 2014). The Workplan also outlines explicit
incremental
[[Page 3029]]
objectives for the conservation effort, steps needed to achieve the
objectives, timeframes associated with the steps, as well as
performance indicators, monitoring mechanisms and progress reporting on
the implementation and evaluation of the success of the objectives.
Given the implementation of current conservation efforts, with a
published Workplan that allows for the continued monitoring and
reporting on the implementation and effectiveness of these conservation
efforts, as well as legislative obligations that compel these efforts,
we find there to be a high likelihood that management measures for the
protection of Harrisson's dogfish will continue to be implemented
through the foreseeable future. As noted by the Australian Government
in their public submission, ``following the expiration of the current
Closure Direction, management measures will be reviewed and subsequent
spatial closure decisions or other conservation efforts will be
implemented for the protection of Harrisson's Dogfish in light of the
performance of the Strategy against its objectives and the objectives
of the FM Act and EPBC Act.'' Based on the above, we have determined
that the conservation efforts protecting Harrisson's dogfish from risk
of extinction through the foreseeable future have a high certainty of
being implemented.
In the proposed rule we also noted that the protection of the
species is not required under the EPBC Act due to its conservation
dependent status. However, as noted above, there are a number of
legislative protections for Harrisson's dogfish. In addition, although
the species is not directly characterized as a matter of national
significance due to its conservation dependent status under the EPBC
Act, the species is indirectly protected by the EPBC Act through the
designation of Commonwealth Marine Areas as matters of national
significance. Under this designation, an action that is likely to have
a substantial adverse effect on a population of a marine species (such
as Harrisson's dogfish), including its life cycle (for example,
breeding, feeding, migration behavior, life expectancy) and spatial
distribution, is considered to have a significant impact on the
environment in a Commonwealth Marine Area and must be referred to
Australia's Minister of the Environment and undergo an environmental
assessment and approval process. This is an additional protection
afforded to Harrisson's dogfish under the Australian Government's legal
framework that was not considered in the proposed rule.
In light of the new information received and collected during the
public comment period regarding Australia's legislative objectives,
requirements, and actions, especially as they pertain to Harrisson's
dogfish, we no longer find that the timeframe over which conservation
efforts will certainly be in place is insufficient to increase the
species' chances of survival or prevent its extinction through the
foreseeable future. Rather, we now have a high degree of certainty that
conservation efforts to protect the species from further decline (and
with the primary objective of rebuilding) will continue to be
implemented after 5 years and through the foreseeable future,
effectively mitigating existing threats to the species and improving
the status of the species to the point where extinction is unlikely now
or in the foreseeable future.
Final Determination
We have reviewed the best available scientific and commercial
information, including the petition, the information in the status
review reports, public comments, and the comments of peer reviewers.
Based on the information presented, we find that the Banggai
cardinalfish (Pterapogon kauderni) is likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range. We assessed the ESA section 4(a)(1) factors and
demographic risk factors and conclude that habitat destruction and
overutilization affect Banggai cardinalfish. After considering efforts
being made to protect Banggai cardinalfish, we could not conclude that
the proposed conservation efforts would alter the extinction risk for
the species. Therefore, we are listing the Banggai cardinalfish as
threatened under the ESA.
Based on the information presented, we find that Harrisson's
dogfish is not in danger of extinction, or likely to become so in the
foreseeable future, throughout all or a significant portion of its
range. We assessed the ESA section 4(a)(1) factors and demographic risk
factors and conclude that Harrisson's dogfish faces threats from
overutilization, with the species' natural biological vulnerability to
overexploitation and demographic risks exacerbating the severity of the
threats. However, we also conclude that ongoing conservation efforts
implemented by the Australian Government are currently effective in
decreasing this main threat of overutilization to the point where the
species is not presently in danger of extinction. In addition, we
conclude that these conservation efforts are sufficiently certain to be
implemented and effective over a timeframe necessary to stop the
decline of, and support recovery of, the species so that its chances of
long term survival in nature are maximized, thereby making it unlikely
that the species will become in danger of extinction in the foreseeable
future. Therefore, we find that listing Harrisson's dogfish as an
endangered or threatened species under the ESA is not warranted at this
time.
We will continue to monitor the status of Harrisson's dogfish and
if, at any time, data indicate that protective status under the ESA may
be necessary and should be considered again, including information that
the implementation of necessary conservation efforts has ceased, or if
we become aware of noncompliance issues with the conservation measures,
or if there are new or increasing threats, we can initiate listing
procedures, including, if appropriate, emergency listing pursuant to
section 4(b)(7) of the ESA.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery actions (16 U.S.C. 1533(f));
concurrent designation of critical habitat, if prudent and determinable
(16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to consult with
NMFS under section 7 of the ESA to ensure their actions do not
jeopardize the species or result in adverse modification or destruction
of critical habitat should it be designated (16 U.S.C. 1536); and
prohibitions on taking (16 U.S.C. 1538). Recognition of the species'
plight through listing promotes conservation actions by Federal and
state agencies, foreign entities, private groups, and individuals.
Identifying Section 7 Consultation Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS
regulations require Federal agencies to consult with us to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of listed species or destroy or
adversely modify critical habitat. It is unlikely that the listing of
the Banggai cardinalfish under the ESA will increase the number of
section 7 consultations, because this species occurs outside of the
United States and is unlikely to be affected by Federal actions.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(5)) as: (1)
[[Page 3030]]
The specific areas within the geographical area occupied by a species,
at the time it is listed in accordance with the ESA, on which are found
those physical or biological features (a) essential to the conservation
of the species and (b) that may require special management
considerations or protection; and (2) specific areas outside the
geographical area occupied by a species at the time it is listed upon a
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the ESA
is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the
ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and
determinable, critical habitat be designated concurrently with the
listing of a species. However, critical habitat shall not be designated
in foreign countries or other areas outside U.S. jurisdiction (50 CFR
424.12 (h)).
The best available scientific and commercial data as discussed
above identify the geographical areas occupied by Pterapogon kauderni
as being entirely outside U.S. jurisdiction, so we cannot designate
critical habitat for this species. We can designate critical habitat in
areas in the United States currently unoccupied by the species, if the
area(s) are determined by the Secretary to be essential for the
conservation of the species. Based on the best available information,
we have not identified unoccupied area(s) in U.S. waters that are
currently essential to the conservation of the Banggai cardinalfish.
Therefore, based on the available information, we will not designate
critical habitat for Pterapogon kauderni.
Protective Regulations Under Section 4(d) of the ESA
Section 9 of the ESA prohibits the take of endangered species. The
term ``take'' means 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)). In the case of threatened species, ESA section
4(d) leaves it to the Secretary's discretion whether, and to what
extent, to extend the section 9(a) ``take'' prohibitions to the
species, and authorizes us to issue regulations necessary and advisable
for the conservation of the species. Thus, we have flexibility under
section 4(d) to tailor protective regulations, taking into account the
effectiveness of available conservation measures. The 4(d) protective
regulations may prohibit, with respect to threatened species, some or
all of the acts which section 9(a) of the ESA prohibits with respect to
endangered species. These section 9(a) prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
We will consider potential protective regulations pursuant to section
4(d) for the Banggai cardinalfish in a future rulemaking.
References
Vagelli, A.A. 2015. Update on populations' condition of the Banggai
cardinalfish Pterapogon kauderni. Unpublished report. 17 pages.
A complete list of the references used in this proposed rule is
available upon request (see ADDRESSES).
Classification
National Environmental Policy Act
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.
1981), NMFS has concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA) (See NOAA Administrative Order 216-6).
Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under Executive
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction
Act.
Executive Order 13132, Federalism
In accordance with E.O. 13132, we determined that this final rule
does not have significant Federalism effects and therefore a Federalism
assessment is not required.
List of Subjects in 50 CFR Part 223
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: January 7, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 223 is amended
as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, amend the table in paragraph (e) by adding the
entry ``Cardinalfish, Banggai'' in alphabetical order under the
subheading ``Fishes'' to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
----------------------------------------------------------------------------------- Citation(s) for
Description of listed listing Critical habitat ESA rules
Common name Scientific name entity determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 3031]]
* * * * * * *
Cardinalfish, Banggai.............. Pterapogon kauderni... Entire species....... January 20, 2016 NA................... NA.
[Insert Federal
Register citation].
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. 2016-00943 Filed 1-19-16; 8:45 am]
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