[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Rules and Regulations]
[Pages 72545-72550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25420]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration 50 CFR Parts 223 
and 224

[Docket No. 150527481-6928-02]
RIN 0648-XD971


Endangered and Threatened Wildlife and Plants: Final Rule To List 
the Island Grouper (Mycteroperca fusca) as Threatened and the Gulf 
Grouper (Mycteroperca jordani) as Endangered 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 two foreign grouper 
species under the Endangered Species Act (ESA). We considered comments 
submitted on the proposed listing rule and have determined that the 
gulf grouper (Mycteroperca jordani) and the island grouper 
(Mycteroperca fusca) warrant listing as endangered and threatened 
species, respectively. We will not designate critical habitat for 
either of these species because the geographical areas occupied by 
these 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 either of these species.

DATES: This final rule is effective November 21, 2016.

ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, Office of 
Protected Resources (OPR), (301) 427-8469.

SUPPLEMENTARY INFORMATION: 

Background

    On July 15, 2013, we received a petition from WildEarth Guardians 
to list 81 marine species or subpopulations as threatened or endangered 
under the ESA. This petition included species from many different 
taxonomic groups, and we prepared our 90-day findings in batches by 
taxonomic group. We found that the petitioned actions may be warranted 
for 24 of the species and 3 of the subpopulations and announced the 
initiation of status reviews for each of the 24 species and 3 
subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 
2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; 
and 79 FR 10104, February 24, 2014). On September 23, 2015, we 
published a proposed rule to list the gulf grouper (Mycteroperca 
jordani) as an endangered species and the island grouper (Mycteroperca 
fusca) as a threatened species (80 FR 57314). We requested public 
comment on the information in the draft status review and proposed 
rule, and the comment period was open through November 23, 2015. This 
final rule provides a discussion of the information we received during 
the public comment period and our final determinations on the petition 
to list the gulf grouper and island grouper under the ESA. The status 
of the findings and relevant Federal Register notices for the other 22 
species and 3 subpopulations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

Listing Species Under the Endangered Species Act

    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 first consider whether a group of organisms 
constitutes a ``species'' under the ESA, then whether the status of the 
species qualifies it for listing as either threatened or endangered. 
Section 3 of the ESA defines a ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.''
    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 endangered species is the timing of when a 
species may be in danger of extinction, either presently (endangered) 
or in the foreseeable future (threatened).
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened due to any one or a combination of 
the following five threat factors: The present or threatened 
destruction, modification, or curtailment of its habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; the inadequacy of existing 
regulatory mechanisms; or other natural or manmade factors affecting 
its continued existence. We are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any State or foreign nation 
to protect the species.
    In 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 grouper species, we 
considered the demographic viability factors developed by McElhany et 
al. (2000). 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 viable population 
descriptors: Abundance, growth rate/productivity, spatial structure/
connectivity, and diversity. These viable population descriptors 
reflect concepts that are well-founded in conservation biology and that 
individually and collectively provide strong indicators of extinction 
risk (NMFS 2015).
    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 response to our request for comments on the proposed rule, we 
received comments from eight parties. All commenters presented general

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information on threats or provided data that were already cited, 
discussed, and considered in the draft status review reports (Dennis 
2015; Salz 2015) or the proposed rule (80 FR 57314; September 23, 
2015). Summaries of the substantive public comments received, and our 
responses, are provided below, with references to our prior documents 
where relevant.
    Comment 1: One commenter noted that WildEarth Guardians had 
submitted the petition to list these two grouper species and wondered 
at what level we involved WildEarth Guardians or other organizations in 
the process of making the assessment.
    Response: WildEarth Guardians did not have any role in evaluating 
the status of the two grouper species under the ESA beyond providing us 
with the information in its petition.
    Comment 2: Most commenters expressed support for the proposed rule, 
though several recommended we consider economic and social impacts on 
the tourism and fishing industries when determining what is restricted 
and prohibited or when developing recovery plans. One of these 
commenters noted that U.S. fishing companies will suffer if the gulf 
grouper is listed as endangered under the ESA because Mexico will not 
have regulations and laws for bycatch prevention devices and Mexican 
fishers do not have to abide by the ESA. And another commenter 
suggested allowing small amounts of sustainable yield to support those 
industries dependent on these two groupers.
    Response: The ESA requires us to base our listing determinations 
solely on the best available scientific and commercial information. We 
may not consider economic or social impacts in making these 
determinations. When a species is listed as endangered, the ESA section 
9 prohibitions are automatically extended to that species. The gulf 
grouper is listed as endangered, and therefore, it is a violation for 
anybody subject to U.S. jurisdiction to harvest this species in U.S. 
waters or on the high seas.
    Therefore, we cannot authorize even small amounts of harvest of 
this species to support the fishing industry. However, when a species 
is listed as threatened, section 9 prohibitions are not automatically 
extended to that species. In this case, we have not extended any 
section 9 prohibitions to the threatened island grouper, so there is no 
prohibition against harvesting them. However, any Federal agency that 
funds, authorizes, or carries out an action that may affect an ESA 
listed species must consult with us under section 7 of the ESA to 
ensure that the action is not likely to jeopardize the continued 
existence of any species listed under the ESA.
    Comment 3: One commenter asserted that Mexico has an 8,000 km\2\ 
area where gill nets are illegal, but more efforts are needed to 
protect the two grouper species.
    Response: Although we have no authority with respect to how other 
countries manage species within their territories, we encourage Spain, 
Portugal, and Mexico to provide for the conservation of these species 
that are found in their waters.
    Comment 4: One commenter stated that he understood the need to 
protect these grouper species, but he asserted that ESA protection will 
not have the protective effect NMFS is seeking, especially for the gulf 
grouper. This commenter noted that the gulf grouper has limited 
habitat, the habitat is threatened by dams, and ESA listing will not 
help. The commenter suggested that NMFS consider public outreach to 
bring attention to the many problems dams cause.
    Response: While it is true that fewer protections apply under the 
ESA for foreign species, important protections do apply. All persons 
subject to the jurisdiction of the United States (including its 
citizens) must comply with section 9 of the ESA, which, among other 
things, makes it unlawful to import endangered species into the United 
States or to export them from the United States, or to ``take'' 
endangered species within the territorial sea of the United States or 
upon the high seas (16 U.S.C. 1538(a)(1)(A)-(C)). Also, any Federal 
agency that funds, authorizes, or carries out an action that may affect 
an ESA listed species must consult with us under section 7 of the ESA 
to ensure that the action is not likely to jeopardize the continued 
existence of any species listed under the ESA. In addition, listing 
provides important educational benefits by informing the public about 
the plight of these species and promotes conservation actions by 
Federal and State agencies, foreign entities, private groups, and 
individuals.
    Comment 5: One commenter wondered why NMFS was listing the island 
grouper, which is a foreign species. The commenter noted that ESA 
listing would have no legal impact, and it would be better to impose a 
[gteqt]700mm size limit for these two grouper species.
    Response: Section 4 of the ESA requires that we list any species 
that we determine to be endangered or threatened, whether it occurs 
within the United States or elsewhere. Demonstrating a need to secure 
particular protections under the other sections of the ESA, or that 
such protections will be afforded where the species is found, is not a 
precondition to listing. As we noted in our response to Comment 3, 
although we have no authority with respect to how other countries 
manage species within their territories, we encourage Spain, Portugal, 
and Mexico to provide for the conservation of these species that are 
found in their waters. Please see our response to Comment 4 for a 
summary of protections that will apply to the endangered gulf grouper 
and threatened island grouper.
    Comment 6: One commenter stated that it would be helpful if other 
countries would realize that the imminent threats of tidal power, 
desalination, commercial fishing, and waste runoff are big factors in 
the degradation and loss of habitat for these grouper species and that 
they would follow through to begin addressing these issues and help 
bring these groupers back to viable numbers.
    Response: Again, although we have no authority with respect to how 
other countries manage species within their territories, we encourage 
Spain, Portugal, and Mexico to provide for the conservation of these 
species that are found in their waters.
    Comment 7: One commenter suggested a campaign to increase 
recreational scuba diving aimed at hunting lionfish for sport, feeding 
them to the gulf grouper, and serving them at restaurants as an 
effective tool for conserving gulf grouper (and lionfish eradication), 
as this has been successful in helping eradicate lionfish in the 
Caribbean.
    Response: We appreciate the commenter's suggestion, but this is 
beyond the scope of our final rule.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, scientific data from 
references that were not previously included in the draft status review 
reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314; 
September 23, 2015). We incorporate, as appropriate, relevant 
information received as communications during the public comment 
process.
    However, this information does not present significant new findings 
that change any of our proposed listing determinations.

Status Review

    Status reviews for the gulf grouper and the island grouper were 
conducted by NMFS OPR staff and an in-house contractor. In order to 
complete the

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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. Prior to publication 
of the proposed rule, the status review reports 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 the life 
history, demographic risks, and threats to the two grouper species. We 
considered all identified threats, both individually and cumulatively, 
to determine whether these grouper species respond 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 viable population descriptors discussed above.
    The proposed rule (80 FR 57314; September 23, 2015) summarizes 
general background information on the description, reproductive biology 
and spawning behavior, population structure, distribution, abundance, 
and habitat of the gulf grouper and island grouper. All of that 
information is incorporated herein.

Species Determinations

    Based on the best available scientific and commercial information 
described or referenced above, and included in the status review 
reports, and as stated in the proposed rule (80 FR 57314; September 23, 
2015), we have determined that the gulf grouper (Mycteroperca jordani) 
and the island grouper (Mycteroperca fusca) 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 Factors Affecting the Two Species

    Next we consider 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. The comments that we received on 
the proposed rule did not change our conclusions regarding any of the 
section 4(a)(1) factors or their interactions for these species. In 
fact, the comments lend further support to our conclusion that the 
threats of overutilization and inadequacy of existing regulatory 
mechanisms are contributing significantly to the risk of extinction for 
both Mycteroperca species. Therefore, we incorporate herein all 
information, discussion, and conclusions on the summary of factors 
affecting the two grouper species in the status review reports (Dennis 
2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

Extinction Risk

    None of the comments we received from public comment on the 
proposed rule affected our extinction risk evaluations of these two 
grouper species. Our evaluations and conclusions regarding extinction 
risk for these species remain the same. Therefore, we incorporate 
herein all information, discussion, and conclusions on the extinction 
risk of the two grouper species in the status review reports (Dennis 
2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

Protective Efforts

    Finally, we considered conservation efforts to protect both 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 our conclusions regarding conservation efforts to protect the 
two grouper species. We incorporate herein all information, discussion, 
and conclusions on the protective efforts for the two grouper species 
in the status review reports (Dennis 2015; Salz 2015) and proposed rule 
(80 FR 57314; September 23, 2015).

Final Determinations

    We have reviewed the best available scientific and commercial 
information, including the petition, the information in the status 
review reports (Dennis 2015; Salz 2015), the comments of peer 
reviewers, and public comments. Following are summaries of our listing 
determinations for these two species.

Gulf Grouper

    Based on the best available scientific and commercial information, 
as summarized here, in our proposed rule (80 FR 57314; September 23, 
2015), and in Dennis (2015), and consideration of protective efforts 
being made to protect the species, we find that the gulf grouper 
(Mycteroperca jordani) is at a high risk of extinction. The gulf 
grouper was once considered abundant, and now it is rare (Jenkins and 
Evermann 1889, Croker 1937, and S[aacute]enz-Arroyo et al. 2005a). 
Direct harvest is the major reason for gulf grouper decline (Sala et 
al. 2004, S[aacute]enz-Arroyo et al. 2005a, Aburto-Oropeza et al. 2008) 
and, due to the lack of protective regulations in Mexico (no meaningful 
quotas nor protective regulations for gulf grouper), there is no reason 
to expect fishing to be a diminishing threat.
    Moreover, gulf grouper are intrinsically vulnerable to overfishing 
due to life history traits, including large size, late onset of 
reproductive maturity, protogynous hermaphrodite life history, 
transient aggregate spawning, slow growth rate, long life-span, and 
restricted geographic range (Sadovy de Mitcheson et al. 2012). Based on 
the best available information, we find that the gulf grouper is in 
danger of extinction throughout its range. After considering efforts 
being made to protect this species, we could not conclude that the 
existing or proposed conservation efforts would alter its extinction 
risk. We therefore list it as endangered under the ESA.

Island Grouper

    Based on the best available scientific and commercial information, 
as summarized here, in our proposed rule (80 FR 57314; September 23, 
2015), and in Salz (2015), and consideration of protective efforts 
being made to protect the species, we find that the island grouper 
(Mycteroperca fusca) is at a moderate risk of extinction. The nature of 
the threats and demographic risks identified, taking into account the 
uncertainty associated with the threats and risks, does not demonstrate 
the species is presently in danger of extinction; and therefore, it 
does not meet the definition of an endangered species.
    However, the current threats to island grouper from fishing 
overutilization and inadequate regulatory mechanisms are likely to 
continue in the future, further exacerbating the demographic risk 
factors associated with abundance, growth rate and productivity, and 
spatial structure and connectivity. We conclude that both the species' 
current risk of extinction and the best available information on the 
extent of, and trends in, the major threats affecting this species make 
it likely this species will become an endangered species within the 
foreseeable future (defined as 40 years, as explained in the proposed 
rule (80 FR 57314; September 23, 2015)) throughout its range. We 
therefore list it as threatened 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));

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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); designation of critical habitat if prudent 
and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking 
(16 U.S.C. 1538). In addition, recognition of the species' plight 
through listing promotes conservation actions by Federal and State 
agencies, foreign entities, private groups, and individuals. Because 
the ranges of these two species are entirely outside U.S. jurisdiction, 
the main effects of this final rule are the prohibitions on take, 
including export and import, of the endangered gulf grouper.

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 entirely outside of the 
United States and are unlikely to be affected by Federal actions. 
Although the gulf grouper's historical range includes parts of Southern 
California, there are no recent records indicating that this species 
still exists in U.S. waters.

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. Our regulations at 50 CFR 424.12(b) 
specify that the Secretary will identify, at a scale determined by the 
Secretary to be appropriate, specific areas outside the geographical 
area occupied by the species that are essential for its conservation, 
considering the life history, status, and conservation needs of the 
species based on the best available scientific data. 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 notbe 
designated in foreign countries or other areas outside U.S. 
jurisdiction (50 CFR 424.12(g)).
    The best available scientific and commercial information as 
discussed above, the status review reports (Dennis 2015; Salz 2015), 
and the proposed rule (80 FR 57314; September 23, 2015) does not 
indicate that U.S. waters provide any specific essential biological or 
physical function for the gulf grouper. U.S. waters account for a very 
small portion on the northern limit of the gulf grouper's historical 
range, and may no longer be part of the species' current range. Based 
on the best available information, we have not identified unoccupied 
areas in U.S. waters that are currently essential to the conservation 
of gulf grouper. Therefore, based on the available information, we do 
not intend to designate critical habitat for the gulf grouper.
    The island grouper occurs entirely outside of the United States. 
Therefore, we cannot designate critical habitat for island grouper.

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

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that 
requires us to identify, to the maximum extent practicable at the time 
a species is listed, those activities that would or would not likely 
constitute a violation of section 9 of the ESA. Because we are listing 
Mycteroperca jordani as endangered, all of the prohibitions of section 
9(a)(1) of the ESA will apply to this species. These include 
prohibitions against the import, export, interstate or foreign trade 
(including delivery, receipt, carriage, shipment, transport, sale and 
offering for sale), and ``take'' of these species. These prohibitions 
apply to all persons subject to the jurisdiction of the United States, 
including in the United States, its territorial sea, or on the high 
seas. Take is defined as ``to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct.'' The intent of this policy is to increase public awareness of 
the effects of this listing on proposed and ongoing activities within 
the species' ranges. Activities that we believe could (subject to the 
exemptions set forth in 16 U.S.C. 1539) result in a violation of 
section 9 prohibitions for the endangered gulf grouper include, but are 
not limited to, the following:
    (1) Possessing, delivering, transporting, or shipping any 
individual or part (dead or alive) taken in violation of section 
9(a)(1);
    (2) Delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce any individual or part, in the course of 
a commercial activity;
    (3) Selling or offering for sale in interstate or foreign commerce 
any individual or part, except antique articles at least 100 years old; 
and
    (4) Importing or exporting gulf grouper or any part of this 
species.
    We emphasize that whether a particular activity constitutes a 
violation is entirely dependent upon the facts and circumstances of 
each incident. Further, an activity not listed above may in fact 
constitute a violation.

Identification of Those Activities That Would Not Likely Constitute a 
Violation of Section 9 of the ESA

    Although the determination of whether any given activity 
constitutes a violation is fact dependent, we consider the following 
actions, depending on the circumstances, as being unlikely to violate 
the prohibitions in ESA section 9 with regard to M. jordani: (1) Take 
authorized by, and carried out in accordance with the terms and 
conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for 
purposes of scientific research or the enhancement of the propagation 
or survival of the species; and (2) continued possession of parts that 
were in possession at the time of listing. Such parts may be non-
commercially exported or imported; however the importer or exporter 
must be able to provide evidence to show that the parts meet the 
criteria of ESA section 9(b)(1) (i.e., held in a controlled environment 
at the time of listing, in a non-commercial activity).
    Section 11(f) of the ESA gives NMFS authority to promulgate 
regulations that may be appropriate to enforce the ESA. We may 
promulgate future regulations to regulate trade or holding of gulf 
grouper, if necessary. We will provide the public with the opportunity 
to comment on future proposed regulations.

Protective Regulations Under Section 4(d) of the ESA

    We are listing the island grouper as a threatened species. 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

[[Page 72549]]

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 9(a) prohibitions 
apply to all individuals, organizations, and agencies subject to U.S. 
jurisdiction.
    Because the island grouper occurs entirely outside of the United 
States, and is not commercially traded with the United States, 
extending the section 9(a) ``take'' prohibitions to this species will 
not result in added conservation benefits or species protection. 
Therefore, we do not intend to issue section 4(d) regulations for the 
island grouper.

References

    A complete list of the references used in this final 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).

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, this final rule is exempt from review under 
Executive Order 12866 and the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
This final rule does not contain a collection-of-information 
requirement for the purposes of the Paperwork Reduction Act.

Executive Order 13132, Federalism

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

List of Subjects in 50 CFR Part 224

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


    Dated: October 11, 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 parts 223 and 224 
are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531 1543; subpart B, Sec.  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, in the table in paragraph (e), add an entry for 
``Grouper, island'' under Fishes in alphabetical order by common name 
to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species\1\
--------------------------------------------------------------------------------------------  Citation(s) for listing       Critical
                                                                     Description of listed        determination(s)          habitat         ESA rules
              Common name                    Scientific name                entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Grouper, island.......................  Mycteroperca fusca.......  Entire species..........  [Insert Federal Register               NA               NA
                                                                                              page where the document
                                                                                              begins], October 20,
                                                                                              2016.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 224 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


0
4. In Sec.  224.101, in the table in paragraph (h), add an entry for 
``Grouper, gulf'' under Fishes in alphabetical order by common name to 
read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

[[Page 72550]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species\1\
--------------------------------------------------------------------------------------------  Citation(s) for listing       Critical
                                                                     Description of listed        determination(s)          habitat         ESA rules
              Common name                    Scientific name                entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Grouper, gulf.........................  Mycteroperca jordani.....  Entire species..........  [Insert Federal Register               NA               NA
                                                                                              page where the document
                                                                                              begins], October 20,
                                                                                              2016.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. 2016-25420 Filed 10-19-16; 8:45 am]
 BILLING CODE 3510-22-P