[Federal Register Volume 83, Number 90 (Wednesday, May 9, 2018)]
[Rules and Regulations]
[Pages 21182-21187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09890]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 160413329-8412-03]
RIN 0648-XE571


Endangered and Threatened Wildlife and Plants: Final Rule To List 
the Taiwanese Humpback Dolphin 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: In response to a petition by Animal Welfare Institute, Center 
for Biological Diversity, and WildEarth Guardians, we, NMFS, are 
issuing a final rule to list the Taiwanese humpback dolphin (Sousa 
chinensis taiwanensis) as endangered under the Endangered Species Act 
(ESA). We have reviewed the status of the Taiwanese humpback dolphin, 
including efforts being made to protect the subspecies, and considered 
public comments submitted on the proposed listing rule as well as new 
information received since publication of the proposed rule. Based on 
all of this information, we

[[Page 21183]]

have determined that the Taiwanese humpback dolphin warrants listing as 
an endangered subspecies. We will not designate critical habitat for 
this subspecies, because the geographical areas occupied by these 
dolphins are entirely outside U.S. jurisdiction, and we have not 
identified any unoccupied areas within U.S. jurisdiction that are 
currently essential to the conservation of the subspecies.

DATES: This final rule is effective June 8, 2018.

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

FOR FURTHER INFORMATION CONTACT: Chelsey Young, NMFS, Office of 
Protected Resources, [email protected], (301) 427-8491.

SUPPLEMENTARY INFORMATION:

Background

    On March 9, 2016, we received a petition from Animal Welfare 
Institute (AWI), Center for Biological Diversity (CBD), and WildEarth 
Guardians (Guardians) to list the Taiwanese humpback dolphin (S. 
chinensis taiwanensis) as threatened or endangered under the ESA 
throughout its range. We found that the petitioned action may be 
warranted for the species and, on May 12, 2016, we published a positive 
90-day finding for the Taiwanese humpback dolphin (81 FR 29515), 
announcing that the petition presented substantial scientific or 
commercial information indicating the petitioned action may be 
warranted range wide, and explaining the basis for the finding. We also 
announced the initiation of a status review of the species, as required 
by section 4(b)(3)(a) of the ESA, and requested information to inform 
the agency's decision on whether the subspecies warranted listing as 
endangered or threatened under the ESA. On June 26, 2017, we published 
a proposed rule to list the Taiwanese humpback dolphin as endangered 
(82 FR 28802). We requested public comments on the information in the 
proposed rule and associated status review during a 60-day public 
comment period, which closed on August 25, 2017. This final rule 
provides a discussion of the public comments received in response to 
the proposed rule and our final determination on the petition to list 
the Taiwanese humpback dolphin under the ESA.

Listing Determination Under the ESA

    We are responsible for determining whether species meet the 
definition of threatened or endangered under the ESA (16 U.S.C. 1531 et 
seq.). To make this determination, we first consider whether a group of 
organisms constitutes a ``species'' under the ESA, then whether the 
status of the species qualifies it for listing as either threatened or 
endangered. Section 3 of the ESA defines a ``species'' to include any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife, which 
interbreeds when mature. The Taiwanese humpback dolphin, S. chinensis 
taiwanensis, is a formally recognized subspecies (Wang et al., 2015; 
Committee on Taxonomy, 2016) and thus meets the ESA definition of a 
``species.''
    Section 3 of the ESA defines an endangered species as any species 
which is in danger of extinction throughout all or a significant 
portion of its range and a threatened species as one which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. We interpret an ``endangered 
species'' to be one that is presently in danger of extinction. A 
``threatened species,'' on the other hand, is not presently in danger 
of extinction, but is likely to become so in the foreseeable future 
(that is, at a later time). In other words, the primary statutory 
difference between a threatened species and endangered species is the 
timing of when a species may be in danger of extinction, either 
presently (endangered) or in the foreseeable future (threatened).
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened due to any one or a combination of 
the following five threat factors: The present or threatened 
destruction, modification, or curtailment of its habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; the inadequacy of existing 
regulatory mechanisms; or other natural or manmade factors affecting 
its continued existence. We are also required to make listing 
determinations based solely on the best scientific and commercial data 
available, after conducting a review of the species' status and after 
taking into account efforts being made by any state or foreign nation 
to protect the species.
    In assessing the extinction risk of the Taiwanese humpback dolphin, 
we considered demographic risk factors, such as those developed by 
McElhany et al. (2000), to organize and evaluate the forms of risks. 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our previous 
status reviews (see http://www.nmfs.noaa.gov/pr/species for links to 
these reviews). In this approach, the collective condition of 
individual populations is considered at the species level according to 
four demographic viability factors: Abundance and trends, population 
growth rate or productivity, spatial structure and connectivity, and 
genetic diversity. These viability factors reflect concepts that are 
well-founded in conservation biology and that individually and 
collectively provide strong indicators of extinction risk.
    Scientific conclusions about the overall risk of extinction faced 
by the Taiwanese humpback dolphin under present conditions and in the 
foreseeable future are based on our evaluation of the species' 
demographic risks and section 4(a)(1) threat factors. Our assessment of 
overall extinction risk considered the likelihood and contribution of 
each particular factor, synergies among contributing factors, and the 
cumulative impact of all demographic risks and threats on the species.
    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into consideration those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect the 
species. Therefore, prior to making a listing determination, we also 
assess such protective efforts to determine if they are adequate to 
mitigate the existing threats.

Summary of Comments

    In response to our request for comments on the proposed rule, we 
received a total of eight public comments from several non-governmental 
organizations as well as individual members of the public. All comments 
were supportive of the proposed listing of the Taiwanese humpback 
dolphin as endangered and the large majority provided no new or 
substantive data or information relevant to the listing of Taiwanese 
humpback dolphin that was not already considered in the status review 
report and proposed rule. We have considered all public comments, and 
we provide responses to all relevant issues raised by comments as 
summarized below.

[[Page 21184]]

Comments on Proposed Listing Determination

    Comment 1: As mentioned previously, all public comments received 
were supportive of the proposed listing determination for the Taiwanese 
humpback dolphin as endangered. One commenter emphasized the 
detrimental ecosystem impacts that can result from species extinctions. 
The commenter also noted the importance of the United States to 
continue leading in the area of environmental preservation and 
expressed support for the proposed listing.
    Several commenters reiterated information and many of the points 
from the status review and proposed rule for the Taiwanese humpback 
dolphin, notably the subspecies' small and dwindling population, its 
restricted range in the shallow waters of the Taiwan Strait, the 
numerous anthropogenic threats the subspecies faces, and the need for 
more stringent regulations to protect the dolphin. The petitioners 
(AWI, CBD, and Guardians) also submitted a comment letter in support of 
our endangered listing determination for the Taiwanese humpback 
dolphin. The comment letter largely reiterated information from the 
status review and proposed rule and emphasized the severity of 
fisheries interactions, results of population viability models showing 
population declines, and the inadequacy of current laws to protect the 
dolphin. They also provided new scientific and commercial information 
regarding the emerging threat of acoustic disturbance to the subspecies 
(discussed below in Comment 2). The Marine Mammal Commission also 
submitted a letter of support regarding our determination that the 
Taiwanese humpback dolphin has a high risk of extinction throughout its 
range and warrants listing as an endangered subspecies.
    Response: We acknowledge the several public comments in support of 
our listing determination and the public interest in conserving the 
Taiwanese humpback dolphin.

Comments on Threats to the Taiwanese Humpback Dolphin

    Comment 2: We received a comment letter from the petitioners (AWI, 
CBD, and Guardians) that provided some new scientific information 
related to the threat of underwater noise and acoustic disturbance to 
the Taiwanese humpback dolphin. Specifically, the commenters emphasized 
the emerging threat of pile-driving activities associated with the 
development and installation of offshore wind farms in close proximity 
to the dolphin's habitat. The commenters provided recent studies that 
evaluated the in-situ noise pressure levels from these types of 
activities (Chen et al., 2017a, 2017b) and referred to NMFS's technical 
guidance for assessing the effects of anthropogenic sound on marine 
mammal hearing to suggest that the development of offshore wind farms 
is a significant threat to the Taiwanese humpback dolphin. We received 
a letter from another group of commenters expressing similar concerns 
regarding the wind farm development on the western coast of Taiwan. The 
commenters stated that ``offshore wind farms and their construction 
will exacerbate noise pollution that can be traumatically harmful to 
the dolphins.''
    Response: We agree with commenters that the development of offshore 
wind farms on the western coast of Taiwan is concerning for the 
Taiwanese humpback dolphin, particularly given the limited amount of 
suitable habitat available to the subspecies. We incorporated this new 
information into our status review report, and we agree that this new 
information further supports our endangered listing determination for 
the dolphin. As described in the status review report and proposed 
rule, acoustic disturbance is likely a threat that compounds other 
threats to the population by decreasing foraging success, increasing 
stress, and decreasing immune health. As such, we ranked this threat as 
``moderate,'' meaning that it is likely that this particular threat 
contributes significantly to the subspecies' risk of extinction. We 
maintain our conclusion regarding this threat ranking for acoustic 
disturbance to the Taiwanese humpback dolphin. However, given the 
increasing development activities related to the installation of 
numerous wind turbines slated to occur within the dolphin's habitat in 
the next several years, we acknowledge that the threat of acoustic 
disturbance to the Taiwanese humpback dolphin population is likely to 
increase in the future.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information to change our proposed listing 
determination. We did, however, make some revisions to the status 
review report (Whittaker and Young 2018) to incorporate, as 
appropriate, relevant information that we received in response to our 
request for public comments or identified ourselves. Specifically, we 
updated the status review to include new information regarding the 
threat of acoustic disturbance to the Taiwanese humpback dolphin, 
particularly as it relates to the increase in underwater noise that is 
likely to occur from the construction of offshore wind farms within the 
subspecies' habitat.

Status Review

    The status review for the Taiwanese humpback dolphin was completed 
by NMFS staff from the Office of Protected Resources. To complete the 
status review, we compiled the best available data and information on 
the subspecies' biology, ecology, life history, threats, and 
conservation status by examining the petition and cited references, and 
by conducting a comprehensive literature search and review. We also 
considered information submitted to us in response to our petition 
finding. The draft status review report was subjected to independent 
peer review as required by the Office of Management and Budget Final 
Information Quality Bulletin for Peer Review (M-05-03; December 16, 
2004). The draft status review report was peer reviewed by three 
independent specialists selected from the academic and scientific 
community, with expertise in cetacean biology, conservation and 
management, and specific knowledge of the Taiwanese humpback dolphin. 
The peer reviewers were asked to evaluate the adequacy, 
appropriateness, and application of data used in the draft status 
review report as well as the findings made in the ``Assessment of 
Extinction Risk'' section of the report. All peer reviewer comments 
were addressed prior to finalizing the draft status review report.
    We subsequently reviewed the status review report, and its cited 
references, and we find the status review report, upon which the 
proposed and final rules are based, provides the best available 
scientific and commercial information on the Taiwanese humpback 
dolphin. The final status review report (cited as Whittaker and Young 
2018) is available on our website (see ADDRESSES section).

ESA Section 4(a)(1) Factors Affecting the Taiwanese Humpback Dolphin

    As stated previously and as discussed in the proposed rule (82 FR 
28802; June 26, 2017), we considered whether any one or a combination 
of the five threat factors specified in section 4(a)(1) of the ESA is 
contributing to the extinction risk of the Taiwanese humpback dolphin. 
One commenter provided additional information related to threats, 
particularly underwater noise from coastal and energy development. The 
information provided was

[[Page 21185]]

consistent with or reinforced information in the status review report 
and proposed rule, and thus, did not change our conclusions regarding 
any of the section 4(a)(1) factors or their interactions. Therefore, we 
incorporate and affirm herein all information, discussion, and 
conclusions regarding the factors affecting the Taiwanese humpback 
dolphin from the final status review report (Whittaker and Young 2018) 
and the proposed rule (82 FR 28802; June 26, 2017).

Extinction Risk

    As discussed previously, the status review evaluated the 
demographic risks to the Taiwanese humpback dolphin according to four 
categories--abundance and trends, population growth/productivity, 
spatial structure/connectivity, and genetic diversity. As a concluding 
step, after considering all of the available information regarding 
demographic and other threats to the subspecies, we rated the 
subspecies' extinction risk according to a qualitative scale (high, 
moderate, and low risk). Although we did update our status review to 
incorporate the most recent threat information for the Taiwanese 
humpback dolphin, none of the comments or information we received on 
the proposed rule changed the outcome of our extinction risk evaluation 
for the subspecies. As such, our conclusions regarding extinction risk 
for the Taiwanese humpback dolphin remain the same. Therefore, we 
incorporate and affirm, herein, all information, discussion, and 
conclusions on the extinction risk of the Taiwanese humpback dolphin in 
the final status review report (Whittaker and Young 2018) and proposed 
rule (82 FR 28802; June 26, 2017).

Protective Efforts

    In addition to regulatory measures (e.g., Taiwan's Wildlife 
Conservation Act and designation of Major Wildlife Habitat, etc.), we 
considered other efforts being made to protect the Taiwanese humpback 
dolphin. We considered whether such protective efforts altered the 
conclusions of the extinction risk analysis for the species; however, 
none of the information we received on the proposed rule affected our 
conclusions regarding conservation efforts to protect the dolphin. 
Therefore, we incorporate and affirm herein all information, 
discussion, and conclusions on the extinction risk of the Taiwanese 
humpback dolphin in the final status review report (Whittaker and Young 
2018) and proposed rule (82 FR 28802; June 26, 2017).

Final Listing Determination

    We summarize the factors supporting our final listing determination 
as follows: (1) The best available information indicates that the 
subspecies has a critically small population of less than 100 
individuals, which is likely declining; (2) the Taiwanese humpback 
dolphin has a very restricted range, occurring only in the shallow 
waters off the western coast of Taiwan; (3) the subspecies possesses 
life history characteristics that increase its vulnerability to 
threats, including that it is long-lived and has a late age of 
maturity, slow population growth, and low rate of reproduction and 
fecundity; (4) the subspecies is confined to limited habitat in a 
heavily impacted area of coastline where ongoing habitat destruction 
(including coastal development, land reclamation, and fresh water 
diversion) contributes to a high risk of extinction; (5) the Taiwanese 
humpback dolphin is experiencing unsustainable rates of fisheries 
interactions, including mortality and major injuries due to bycatch and 
entanglement in fishing gear; and (6) existing regulatory mechanisms 
are inadequate for addressing the most important threats of habitat 
destruction and fisheries interactions. Based on the foregoing 
information, which is based on the best available scientific and 
commercial data, we find that the Taiwanese humpback dolphin meets the 
definition of an endangered species and list it as such.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include the development and implementation of 
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if 
prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and a requirement 
that Federal agencies consult with NMFS under section 7 of the ESA to 
ensure their actions are not likely to jeopardize the species or result 
in adverse modification or destruction of designated critical habitat 
(16 U.S.C. 1536). For endangered species, protections also include 
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is 
defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct (16 
U.S.C. 1532(19)). Recognition of the species' imperiled status through 
listing may also promote conservation actions by Federal and state 
agencies, foreign entities, private groups, and individuals.

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

    On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service 
(USFWS) published a policy (59 FR 34272) that requires us to identify, 
to the maximum extent practicable, at the time a species is listed, 
those activities that would or would not constitute a violation of 
section 9 of the ESA. The intent of this policy is to increase public 
awareness of the potential effects of species listings on proposed and 
ongoing activities.
    Because we are listing the Taiwanese humpback dolphin as 
endangered, all of the prohibitions of section 9(a)(1) of the ESA will 
apply to this subspecies. Section 9(a)(1) includes prohibitions against 
the import, export, use in foreign commerce, and ``take'' of the listed 
species. These prohibitions apply to all persons subject to the 
jurisdiction of the United States, including all persons in the United 
States or its territorial sea, and U.S. citizens on the high seas. 
Activities that could result in a violation of section 9 prohibitions 
for Taiwanese humpback dolphins include, but are not limited to, the 
following:
    (1) Delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce any Taiwanese humpback dolphin or any of 
its parts, in the course of a commercial activity;
    (2) Selling or offering for sale in interstate commerce any part of 
a Taiwanese humpback dolphin, except antique articles at least 100 
years old; and
    (3) Importing or exporting Taiwanese humpback dolphins or any parts 
of these dolphins.
    Whether a violation results from a particular activity is entirely 
dependent upon the facts and circumstances of each incident. Further, 
an activity not listed here may in fact constitute a violation.

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

    Although the determination of whether any given activity 
constitutes a violation is fact dependent, we consider the following 
actions, depending on the circumstances, as being unlikely to violate 
the prohibitions in ESA section 9 with regard to Taiwanese humpback 
dolphins: (1) Take authorized by, and carried out in accordance with 
the terms and conditions of, an ESA section 10(a)(1)(A) permit issued 
by NMFS for purposes of scientific research or the enhancement of the 
propagation or survival of the species; and (2) continued possession of 
Taiwanese humpback dolphins or any parts that

[[Page 21186]]

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).

Identifying Section 7 Consultation Requirements

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

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed if such areas are determined to be essential for the 
conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 
1533(a)(3)(A)) requires that, to the extent prudent and determinable, 
critical habitat be designated concurrently with the listing of a 
species. However, critical habitat cannot be designated in foreign 
countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)). 
The Taiwanese humpback dolphin is endemic to Taiwan and does not occur 
within areas under U.S. jurisdiction. There is no basis to conclude 
that any unoccupied areas under U.S. jurisdiction are essential for the 
conservation of the subspecies. Therefore, we do not intend to propose 
any critical habitat designations for this subspecies.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing a 
minimum peer review standard. We solicited peer review comments on the 
draft status review report from three scientists with expertise on 
cetaceans in general and specific knowledge regarding the Taiwanese 
humpback dolphin in particular. We received and reviewed comments from 
these scientists, and, prior to publication of the proposed rule, their 
comments were incorporated into the draft status review report 
(Whittaker and Young 2017), which was then made available for public 
comment. Peer reviewer comments on the status review are available at 
http://www.cio.noaa.gov/services_programs/prplans/ID370.html.

References

    A complete list of the references used is available upon request 
(see ADDRESSES).

Classification

National Environmental Policy Act

    Section 4(b)(1)(A) of the ESA restricts the information that may be 
considered when assessing species for listing and sets the basis upon 
which listing determinations must be made. Based on the requirements in 
section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal 
Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981), we have concluded 
that ESA listing actions are not subject to the environmental 
assessment requirements of the National Environmental Policy Act 
(NEPA).

Executive Order 12866, Regulatory Flexibility Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process.
    In addition, this final rule is exempt from review under Executive 
Order 12866.

Paperwork Reduction Act

    This final rule does not contain a collection-of-information 
requirement for the purposes of the Paperwork Reduction Act.

Executive Order 13132, Federalism

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

List of Subjects in 50 CFR Part 224

    Endangered and threatened species, Exports, Transportation.

    Dated: May 4, 2018.
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 224 is amended 
as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. 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
2. In Sec.  224.101, amend the table in paragraph (h) by adding an 
entry for ``Dolphin, Taiwanese humpback'' under ``Marine Mammals'' in 
alphabetical order, by common name, to read as follows:


Sec.  224.101   Enumeration of endangered marine and anadromous 
species.

* * * * *
    (h) * * *

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                              Species \1\
------------------------------------------------------------------------   Citation(s) for    Critical     ESA
                                                       Description of          listing         habitat    rules
          Common name              Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
         Marine Mammals
 
                                                  * * * * * * *
Dolphin, Taiwanese humpback....  Sousa chinensis     Entire subspecies.  [Insert Federal     NA          NA
                                  taiwanensis.                            Register page
                                                                          where the
                                                                          document begins],
                                                                          May 9, 2018.

[[Page 21187]]

 
 
                                                  * * * * * * *
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\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. 2018-09890 Filed 5-8-18; 8:45 am]
 BILLING CODE 3510-22-P