[Federal Register Volume 81, Number 60 (Tuesday, March 29, 2016)]
[Rules and Regulations]
[Pages 17398-17403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07001]



[[Page 17398]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 141219999-6207-02]
RIN 0648-XD681


Endangered and Threatened Wildlife and Plants; Final Rule To List 
the Tanzanian DPS of African Coelacanth (Latimeria chalumnae) as 
Threatened Under the Endangered Species Act

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final rule to list the Tanzanian Distinct 
Population Segment (DPS) of African coelacanth (Latimeria chalumnae) as 
a threatened species under the Endangered Species Act (ESA). We will 
not designate critical habitat for this species because the 
geographical areas occupied by the species are entirely outside U.S. 
jurisdiction, and we have not identified any unoccupied areas within 
U.S. jurisdiction that are essential to the conservation of the 
species.

DATES: This final rule is effective April 28, 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: Chelsey Young, NMFS, Office of 
Protected Resources, (301) 427-8491.

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, including the African 
coelacanth, 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). Following the positive 90-day 
finding, we conducted a comprehensive status review of the African 
coelacanth. A ``status review report'' (Whittaker, 2014) was produced 
and used as the basis of 12-month finding determination and proposed 
rule. Please refer to our Web site (http://www.nmfs.noaa.gov/pr/species/fish/coelacanth.html) for access to the status review report, 
which details African coelacanth biology, ecology, and habitat, the DPS 
determination, past, present, and future potential risk factors, and 
overall extinction risk. On March 3, 2015, we published a proposed rule 
to list the Tanzanian DPS of African coelacanth (L. chalumnae) as a 
threatened species (80 FR 11363) and solicited comments from all 
interested parties including the public, other governmental agencies, 
the scientific community, industry, and environmental groups.

ESA Statutory Provisions, Regulations, and Policy Considerations

    As the designee of the Secretary of Commerce, we are responsible 
for determining whether marine and anadromous 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.'' 16 U.S.C. 1532(16).
    Section 3 of the ESA also 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.'' 16 U.S.C. 1632(6); (20). We interpret an ``endangered 
species'' to be one that is presently in danger of extinction. A 
``threatened species,'' on the other hand, is not presently in danger 
of extinction, but is likely to become so in the ``foreseeable future'' 
(that is, at a later time). In other words, the primary statutory 
difference between a threatened and endangered species is the timing of 
when a species may be in danger of extinction, either presently 
(endangered) or in the foreseeable future (threatened). The duration of 
the ``foreseeable future'' in any circumstance is inherently fact-
specific and depends on the particular kinds of threats, the life-
history characteristics, and the specific habitat requirements for the 
species under consideration. The foreseeable future also considers the 
availability of data, the ability to predict particular 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. Further, the existence of a threat to a species and the 
species' response to that threat are not, in general, equally 
predictable or foreseeable. Hence, in some cases, the ability to 
foresee a threat to a species is greater than the ability to foresee 
the species' exact response, or the timeframe of such a response, to 
that threat. In making a listing determination, we must ask whether the 
species' population response to a threat (i.e., abundance, 
productivity, spatial distribution, diversity) is foreseeable, not 
merely whether the emergence or continuation of a threat is 
foreseeable. Because we are obligated to base our determinations on the 
best available scientific and commercial information, the foreseeable 
future extends only as far as we are able to reliably predict the 
species' population response to a particular threat.
    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 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. 
16 U.S.C. 1533(a)(1). We are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
(or subdivision thereof) to protect the species. 16 U.S.C. 
1533(b)(1)(A).
    Pursuant to the ESA, any interested person may petition to list or 
delist a species, subspecies, or DPS of a vertebrate species that 
interbreeds when mature (5 U.S.C. 553(e), 16 U.S.C. 1533(b)(3)(A)). 
ESA-implementing regulations issued by NMFS and the U.S. Fish and 
Wildlife Service (FWS) also establish procedures for receiving and 
considering petitions to revise the lists of endangered and threatened 
species and for conducting periodic reviews of listed species (50 CFR 
424.01).

[[Page 17399]]

    When we receive a petition to list a species, we are required to 
the maximum extent practicable to make a finding within 90 days as to 
whether the petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. The 
ESA-implementing regulations provide that ``substantial information'' 
is that amount of information that would lead a reasonable person to 
believe that listing may be warranted (50 CFR 424.14(b)(1)). In 
determining whether substantial information exists, we take into 
account several factors, in light of any information noted in the 
petition or otherwise readily available in our files. If a positive 
finding is made at that initial stage, then we commence a status review 
in order to assemble and assess the best available scientific and 
commercial information. 16 U.S.C. 1533(b)(3)(A). After conducting the 
status review and within 12 months of receiving the petition, we must 
prepare a finding that the action is not warranted, warranted, or 
warranted but precluded by higher listing priorities. 16 U.S.C. 
1533(b)(3)(B). If we find that the petitioned action is warranted, we 
promptly publish a proposed rule to list the species, take steps to 
notify affected states and foreign governments, and solicit public 
input. 16 U.S.C. 1533(b)(3)(B)(ii); 16 U.S.C. 1533(b)(5). After 
reviewing additional information received during the comment period, we 
must either publish a final regulation to implement the determination 
or take certain other actions. 16 U.S.C. 1533(b)(6).
    In making a final listing determination, we first determine whether 
a petitioned species meets the ESA definition of a ``species.'' This 
term includes taxonomic species, subspecies, and ``distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature.'' 16 U.S.C. 1532(16). On February 7, 1996, the Services 
adopted a policy describing what constitutes a DPS of a taxonomic 
species (61 FR 4722). The joint DPS Policy identified two elements that 
must be considered when identifying a DPS: (1) The discreteness of the 
population segment in relation to the remainder of the species (or 
subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs. A population segment of a vertebrate species may be 
considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA.
    If a population segment is considered discrete under one or more of 
the above conditions, its biological and ecological significance is 
then considered in light of Congressional guidance (see S. Rep. No. 96-
151(1979)) that the authority to list DPSs be used ``sparingly'' while 
encouraging the conservation of genetic diversity. This consideration 
may include, but is not limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    After determining whether a group of organisms constitutes a 
listable ``species,'' then using the best available information 
gathered during the status review for the species, we complete a status 
and extinction risk assessment to determine whether the species 
qualifies as an endangered species or threatened species. In assessing 
extinction risk, 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. Against this backdrop we evaluate the influence of the Section 
4(a)(1) threat factors.
    As the definition of ``endangered species'' and ``threatened 
species'' makes clear, the determination of extinction risk can be 
based on either assessment of the range wide status of the species, or 
the status of the species in a ``significant portion of its range.'' 
NMFS and FWS recently published a final policy to clarify the 
interpretation of the phrase ``significant portion of the range'' in 
the ESA definitions of ``threatened species'' and ``endangered 
species'' (79 FR 37577; July 1, 2014) (SPR Policy). The SPR Policy 
reads:

    Consequences of a species being endangered or threatened 
throughout a significant portion of its range: The phrase 
``significant portion of its range'' in the Act's definitions of 
``endangered species'' and ``threatened species'' provides an 
independent basis for listing. Thus, there are two situations (or 
factual bases) under which a species would qualify for listing: a 
species may be endangered or threatened throughout all of its range 
or a species may be endangered or threatened throughout only a 
significant portion of its range.
    If a species is found to be endangered or threatened throughout 
only a significant portion of its range, the entire species is 
listed as endangered or threatened, respectively, and the Act's 
protections apply to all individuals of the species wherever found.
    Significant: A portion of the range of a species is 
``significant'' if the species is not currently endangered or 
threatened throughout its range, but the portion's contribution to 
the viability of the species is so important that, without the 
members in that portion, the species would be in danger of 
extinction, or likely to become so in the foreseeable future, 
throughout all of its range.
    Range: The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
FWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' 
life cycle, even if they are not used regularly (e.g., seasonal 
habitats). Lost historical range is relevant to the analysis of the 
status of the species, but it cannot constitute a significant 
portion of a species' range.
    Reconciling SPR with DPS authority: If the species is endangered 
or threatened throughout a significant portion of its range, and the 
population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies.

    The Final Policy explains that it is necessary to fully evaluate a 
portion for potential listing under the ``significant

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portion of its range'' authority only if the species is not found to 
warrant listing rangewide and if substantial information indicates that 
the members of the species in a particular area are likely both to meet 
the test for biological significance and to be currently endangered or 
threatened in that area. Making this preliminary determination triggers 
a need for further review, but does not prejudge whether the portion 
actually meets these standards such that the species should be listed:

    To identify only those portions that warrant further 
consideration, we will determine whether there is substantial 
information indicating that (1) the portions may be significant and 
(2) the species may be in danger of extinction in those portions or 
likely to become so within the foreseeable future. We emphasize that 
answering these questions in the affirmative is not a determination 
that the species is endangered or threatened throughout a 
significant portion of its range--rather, it is a step in 
determining whether a more detailed analysis of the issue is 
required. 79 FR 37586.

    After reviewing the best available information as to the species 
status and threats throughout its range (and, if necessary, in a 
significant portion of its range), we then assess efforts being made to 
protect the species, to determine if these conservation efforts are 
adequate to mitigate the existing threats as required under Section 
4(b)(1)(A), and whether they are likely improving the status of the 
species to the point at which listing is not warranted, or contribute 
to forming the basis for listing a species as threatened rather than 
endangered. Finally, we re-assess the extinction risk of the species in 
light of the existing conservation efforts, as necessary and come to a 
final conclusion as to whether the species qualifies as an endangered 
or threatened species.

Summary of Comments Received

    Below we address comments received pertaining to the proposed 
listing of the Tanzanian DPS of African coelacanth in the March 3, 
2015, proposed rule (80 FR 11363). During the 60-day public comment 
period from March 3, 2015, to May 4, 2015, we received a total of 8 
written comments from individuals. Each of the commenters generally 
supported the proposed listing.
    Comment 1: We received eight comments in general support of the 
proposed listing. Commenters agreed with the proposal to list the 
species as threatened. They cited its rarity and current threats from 
fishing and habitat impacts as reasons why the Tanzanian DPS of African 
coelacanth warrants protection under the ESA. One commenter noted that 
ESA listing status would help raise awareness of the species' plight 
and authorize the United States to fund and assist in conservation 
programs.
    Response: We appreciate these comments as they support the proposed 
listing rule for the Tanzanian DPS of African coelacanth as a 
threatened species under the ESA. We also agree that the species' 
listing status as threatened could help raise conservation awareness 
for the species. However, we emphasize that our listing determination 
is based solely on consideration of the best scientific and commercial 
information available regarding the threats facing this species as 
required under Section 4(b)(1)(A) and discussed in the proposed rule.
    Comment 2: One commenter noted that they would prefer all 
populations of coelacanth be listed under the ESA, but did not provide 
any additional information to support listing any other populations. In 
contrast, the commenter pointed out that great progress has been made 
regarding educational outreach of Comoran fishermen on how to avoid 
incidental catch of coelacanths, and also noted that coelacanth habitat 
in the Comoros Islands is currently stable.
    Response: As detailed in the proposed listing rule and explained 
further below in our Final Determination section, we conducted a status 
review of the African coelacanth and first considered whether the 
species was at risk of extinction throughout its range and found that 
threats to the species across its range are generally low, with 
isolated threats of overutilization and habitat loss concentrated in 
the Tanzanian portion of the range. Thus, we determined on the basis of 
the best available scientific and commercial information that there was 
no basis to list the species overall based on an assessment of its 
status throughout its range. However, applying our SPR Policy and DPS 
Policy, we concluded that the Tanzanian DPS was a listable entity and 
that it met the test for a threatened species. Because the population 
is a valid DPS, our SPR Policy directs that the members of that 
population be listed rather than the species at large. We thus proposed 
to list only the Tanzanian DPS as a threatened species. Because the 
commenter provided no information to indicate that we should reconsider 
these findings, we cannot adopt their suggestion to list the entire 
species.

Status Review

    The status review for the African coelacanth addressed in this 
finding was conducted in 2014 (Whittaker, 2014). The status review 
represents the best available scientific and commercial 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. This 
information is available in the status review report (Whittaker, 2014), 
which is available on our Web site (http://www.nmfs.noaa.gov/pr/species/fish/coelacanth.html). The status review report provides 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 (80 FR 11363, March 3, 2015) summarizes general 
background information on the species' natural history, range, 
reproduction, population structure, distribution and abundance. None of 
this information has changed since the proposed rule, and we received 
no new information through the public comment period that would cause 
us to reconsider our previous finding as reflected in the 12-month 
finding and proposed rule. Thus, all of the information contained in 
the status review report and proposed rule is reaffirmed in this final 
action.

Overview of Determination Regarding the African Coelacanth at the 
Species Level

    Based on the best available scientific and commercial information 
described in the status review report and proposed rule, in developing 
our 12-month finding we determined that the African coelacanth is 
taxonomically distinct from the Indonesian coelacanth, Latimeria 
menadoensis, and is a valid species under the ESA; it meets the 
definition of ``species'' pursuant to section 3 of the ESA and is 
eligible for listing under the ESA. 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 the African 
coelacanth species and went on to evaluate the species' level of 
extinction risk. Finally we considered conservation efforts for the 
species overall as required under Section 4(b)(1)(A).
    We received no information or analysis from public comment on the

[[Page 17401]]

proposed rule that would cause us to reconsider any of our analysis or 
conclusions regarding any of the section 4(a)(1) factors or their 
interactions for the species overall. Likewise, we did not receive any 
new information or analysis that would cause us to reconsider our 
analysis of extinction risk. Finally, we did not receive any new 
information regarding conservation efforts, which we evaluated as 
required under Section 4(b)(1)(A). For this final rule, we clarify that 
we do not apply the particularized rubric of the Policy on the 
Evaluation of Conservation Efforts (PECE Policy, 68 FR 15100, March 28, 
2003) to consideration of foreign conservation efforts, because that 
policy applies only to conservation efforts ``identified in 
conservation agreements, conservation plans, management plans, or 
similar documents developed by Federal agencies, State and local 
governments, Tribal governments, businesses, organizations, and 
individuals.'' Nevertheless, in this case we have substantively 
evaluated the likelihood of implementation and efficacy of relevant 
efforts, including specifically the recently established Tanga 
Coelacanth Marine Park and its associated protections, as described in 
the proposed rule. We therefore reaffirm the substance of our 
discussion of the 4(a)(1) factors, extinction risk, and conservation 
efforts from the 12-month finding and proposed rule (80 FR 11363, March 
03, 2015) in this final action. In summary, after considering the 
status, threats and extinction risk for the African coelacanth (L. 
chalumnae), we determined the species does not meet the definition of a 
threatened or endangered species when evaluated throughout all of its 
range. Thus, we did not propose to list the species overall. We 
received no information or analysis through the comment process that 
would cause us to reevaluate our determination that the African 
coelacanth does not warrant listing rangewide.

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, and as described in the proposed 
listing rule, because we found the African coelacanth species overall 
to not warrant listing on the basis of the range wide analysis, we 
applied the SPR Policy and considered whether any portions of the range 
of the species would be likely to be both significant to the species 
and at risk of extinction now or within the foreseeable future. We 
considered first whether any populations faced an unusual concentration 
of threats that might suggest they were at risk of extinction. After a 
review of the best available information, we identified the Tanzanian 
population of the African coelacanth as a population facing 
concentrated threats because of increased catch rates in this region 
since 2003, and the threat of a deep-water port directly impacting 
coelacanth habitat in this region. Due to these concentrated threats, 
we found that the species may be at risk of extinction in this area, so 
next we determined whether this portion of the range of the species 
could be considered significant under the SPR Policy (79 FR 37577; July 
1, 2014).
    The Tanzanian population is one of only three confirmed populations 
of the African coelacanth, all considered to be small and isolated. 
Because all three populations are isolated, the loss of one would not 
directly impact the other remaining populations. However, loss of any 
one of the three known African coelacanth populations would 
significantly increase the extinction risk of the species as a whole, 
as only two small populations would remain, making them more vulnerable 
to catastrophic events such as storms, disease, or temperature 
anomalies. Therefore, we determined that this portion of the range of 
the species (the Tanzanian population) represents a significant portion 
of the range of the African coelacanth.
    Having found that the members of the Tanzanian population 
constituted a significant portion of the species' range, we next 
evaluated the extinction risk of this significant portion of the range 
to determine whether it was threatened or endangered. After reviewing 
the best available scientific and commercial information, we determined 
that the Tanzanian population faces demographic risks, such as 
population isolation and low productivity, which make it likely to be 
influenced by stochastic or depensatory processes throughout its range. 
Additionally, ongoing or future threats include overutilization via 
bycatch in the Tanzanian gillnet shark fishery, as well as habitat 
destruction as a result of coastal development. The species' natural 
biological vulnerability to overexploitation exacerbates the severity 
of these threats and places the population at an increased risk of 
extinction within the foreseeable future. In our consideration of the 
foreseeable future, we evaluated how far into the future we could 
reliably predict the operation of the major threats to this population, 
as well as the population's response to those threats. We are confident 
in our ability to make projections over the next several decades in 
assessing the threats of overutilization and habitat destruction, and 
their interaction with the life history of the coelacanth, with its 
lifespan of 40 or more years. Based on this information, we find that 
the Tanzanian population is at a moderate risk of extinction within the 
foreseeable future. Therefore, we consider the Tanzanian population to 
be threatened.
    Because the Tanzanian population represents a significant portion 
of the range of the species, and this population is threatened, we 
conclude that the African coelacanth is threatened in a significant 
portion of its range. We next applied the provision from the SPR Policy 
providing that if a species is determined to be threatened or 
endangered across a significant portion of its range, and the 
population in that significant portion is a valid DPS, we will list the 
DPS rather than the entire taxonomic species or subspecies. In 
evaluating whether this population qualified as a DPS under the DPS 
Policy (61 FR 4722; February 7, 1996), we determined that the Tanzanian 
population is discrete based on evidence for its genetic and geographic 
isolation from the rest of the taxon. The population also meets the 
significance criterion set forth by the DPS policy, as its loss would 
constitute a significant gap in the taxon's range. Because it is both 
discrete and significant to the taxon as a whole, we identified the 
Tanzanian population as a valid DPS.
    Finally, because the population in the significant portion of the 
range is a valid DPS, we proposed to list the DPS rather than the 
entire taxonomic species or subspecies. We received no information or 
analysis through the public comment process that would cause us to 
reconsider our determination. Therefore, with this final rule we are 
listing the Tanzanian DPS of the African coelacanth as a threatened 
species under 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 for species that occur 
within the United States, 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

[[Page 17402]]

habitat should it be designated (16 U.S.C. 1536); and, for endangered 
species, certain prohibitions including against ``take'' of the species 
by persons subject to United States jurisdiction (16 U.S.C. 
1538(a)(1)). Recognition of the species' plight through listing also 
promotes conservation actions by Federal and state agencies, foreign 
entities, private groups, and individuals.

Identifying Section 7 Consultation Requirements

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

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``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. 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, our regulations provide that 
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 Latimeria chalumnae 
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 only if the area(s) are determined 
by the Secretary to be essential for the conservation of the species. 
The best available scientific and commercial information on the species 
does not indicate that U.S. waters provide any specific essential 
biological function for the species proposed for listing. Based on the 
best available information, we have not identified unoccupied area(s) 
in U.S. water that are essential to the conservation of the Tanzanian 
DPS of Latimeria chalumnae. Therefore, based on the available 
information, we will not designate critical habitat for this DPS.

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

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires NMFS to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. Because we are 
finalizing a rule to list the Tanzanian DPS of the African coelacanth 
as threatened, no prohibitions of Section 9(a)(1) of the ESA will apply 
to this species.

Protective Regulations Under Section 4(d) of the ESA

    We are listing the Tanzanian DPS of African coelacanth as a 
threatened species. In the case of threatened species, ESA section 4(d) 
states the Secretary shall issue such regulations as he deems necessary 
and advisable for the conservation of the species and authorizes the 
Secretary to extend the section 9(a) prohibitions to the species. 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 did not receive any information from 
governmental agencies, the scientific community, industry, or any other 
interested parties on information in the status review and proposed 
rule pertaining to potential ESA section 4(d) protective regulations 
for the proposed threatened DPS, including the application, if any, of 
the ESA section 9 prohibitions on import, take, possession, receipt, 
and sale of the African coelacanth. Additionally, commercial trade, 
including import and export, of the African coelacanth is prohibited as 
a result of an Appendix I listing under the Convention on International 
Trade in Endangered Species of Wild Flora and Fauna. Finally, we have 
no evidence to suggest that the species is at risk due to illegal 
trade. Any trade of the species is limited to the transfer of specimens 
for scientific purposes. Thus, we have determined that protective 
regulations pursuant to section 4(d) are not necessary for the 
conservation of the species at this time.

References

Whittaker, Kerry. 2014. Endangered Species Act draft status review 
report for the coelacanth (Latimeria chalumnae). Report to National 
Marine Fisheries Service, Office of Protected Resources. October 
2014. 47 pp.

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered and the basis that must be found 
when assessing species for listing. Based on this limitation of 
criteria for a listing decision and the opinion in Pacific Legal 
Foundation v. Andrus, 657 F.2d 829 (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

    Under the 1982 amendments to the ESA, economic impacts cannot be 
considered when assessing the status of a species. 16 U.S.C. 
1533(b)(1)(a) (``The Secretary shall make determinations required by 
subsection (a)(1) solely on the basis of the best scientific and 
commercial data available to him after conducting a review of the 
status of the species and after taking into account those efforts, if 
any, being made by any State or foreign nation, or any political 
subdivision of a State or foreign nation, to protect such 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.

[[Page 17403]]

Executive Order 13132, Federalism

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

List of Subjects in 50 CFR Part 223

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: March 23, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, 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 ``Coelacanth, African'' 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     Critical
                                                Description of       listing          habitat        ESA Rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Fishes
 
                                                  * * * * * * *
Coelacanth, African           Latimeria        African          81 FR [Insert FR              NA              NA
 (Tanzanian DPS).              chalumnae.       coelacanth       page number
                                                population       where the
                                                inhabiting       document
                                                deep waters      begins], March
                                                off the coast    29, 2016.
                                                of Tanzania.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2016-07001 Filed 3-28-16; 8:45 am]
 BILLING CODE 3510-22-P