[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]
 BILLING CODE 3510-22-P