[Federal Register Volume 83, Number 189 (Friday, September 28, 2018)]
[Rules and Regulations]
[Pages 48976-48985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21114]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 160614518-8790-03]
RIN 0648-XE685


Endangered and Threatened Wildlife and Plants; Final Rule To List 
the Chambered Nautilus 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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[[Page 48977]]

SUMMARY: We, NMFS, announce a final rule to list the chambered nautilus 
(Nautilus pompilius) as threatened under the Endangered Species Act 
(ESA). We have reviewed the status of the chambered nautilus, including 
efforts being made to protect this species, and considered public 
comments, including new information, submitted on the proposed rule. We 
have made our final determination based on the best scientific and 
commercial data available. At this time, we conclude that critical 
habitat is not determinable because data sufficient to perform the 
required analyses are lacking; however, we solicit information on 
habitat features and areas in U.S. waters that may meet the definition 
of critical habitat for the chambered nautilus.

DATES: This final rule is effective October 29, 2018.

ADDRESSES: Endangered Species Division, NMFS Office of Protected 
Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910. 
Copies of the petition, status review report, and Federal Register 
notices are available on our website at https://www.fisheries.noaa.gov/species/chambered-nautilus.

FOR FURTHER INFORMATION CONTACT: Maggie Miller, NMFS, Office of 
Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

    On May 31, 2016, we received a petition from the Center for 
Biological Diversity to list the chambered nautilus (N. pompilius) as a 
threatened species or an endangered species under the ESA. We found 
that the petitioned action may be warranted for the species and 
announced the initiation of a status review (81 FR 58895, August 26, 
2016). On October 23, 2017, we announced a positive 12-month finding on 
the petition and published a proposed rule to list the chambered 
nautilus as a threatened species under the ESA (82 FR 48948). We 
solicited information on the proposed listing determination, the 
potential development of proposed protective regulations, and potential 
designation of critical habitat for the chambered nautilus. The comment 
period was open through December 22, 2017, and no hearing requests were 
received. This final rule provides an overview of the ESA listing and 
status review process for this species; a discussion of the comments 
and information we received during the public comment period, as well 
as our responses to those comments; a summary of the statutory listing 
factors and other considerations supporting the listing determination; 
and our final ESA listing determination for the chambered nautilus. 
This rule should be read in conjunction with the proposed rule.

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 section 3 of the ESA, then whether the 
status of the species qualifies it for listing as either threatened or 
endangered.
    Section 3 of the ESA defines ``species'' to include any subspecies 
of fish or wildlife or plants and, for any vertebrate species, any 
distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). Because the chambered nautilus is an invertebrate, 
the ESA does not permit us to consider listing populations as DPSs.
    Section 3 of the ESA defines an ``endangered species'' as a 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. 
1532(6); (20). Thus, in the context of the ESA, we interpret an 
``endangered species'' to be one that is presently in danger of 
extinction. A ``threatened species'' 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 is or is likely to become in danger of extinction, either 
presently (endangered) or in the foreseeable future (threatened).
    As we explained in the proposed rule and summarize here, when we 
consider whether a species might qualify as threatened under the ESA, 
we must consider the meaning of the term ``foreseeable future.'' It is 
appropriate to interpret ``foreseeable future'' as the horizon over 
which predictions about the conservation status of the species can be 
reasonably relied upon. The appropriate timescales for analyzing 
various threats will vary with the data available about each threat. 
The foreseeable future considers the life history of the species, 
habitat characteristics, availability of data, particular threats, 
ability to predict threats, and the ability to reliably 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.
    The statute also requires us to determine whether any species is 
endangered or threatened throughout all or a significant portion of its 
range as a result of any one or a combination of the following 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 to address identified 
threats; or other natural or manmade factors affecting its continued 
existence (ESA section 4(a)(1)(A)-(E); 16 U.S.C. 1533(a)(1)(A)-(E). See 
also 50 CFR 424.11(c)).
    To make 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 assess the extinction risk of the species. In 
assessing the extinction risk of a species, in conjunction with the 
section 4(a)(1) factors, we consider demographic risk factors, such as 
those developed by McElhany et al. (2000), to organize and evaluate the 
forms of risks. The demographic risk analysis is an assessment of the 
manifestation of past threats that have contributed to the species' 
current status and also informs the consideration of the biological 
response of the species to present and future threats. 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 https://www.fisheries.noaa.gov/resources/documents?title=&field_category_document_value%5Besa_status_review%5D=esa_status_review&species=&field_species_vocab_target_id=&sort_by=created 
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.

[[Page 48978]]

    Where a species is found not to warrant listing throughout its 
range, we must go on to evaluate whether the species may be endangered 
or threatened in a ``significant portion of its range.'' Conversely, 
where a species is found to warrant listing as an endangered species or 
a threatened species based on a review of its status throughout its 
range, it is not necessary to proceed to an evaluation of potentially 
significant portions of the range. As explained more fully in the 
proposed rule, we interpret the Act to require that, where the best 
available information allows us to determine a status for the species 
rangewide, that status determination should be given conclusive weight. 
Our interpretation is also consistent with the 2014 Final Policy on 
Interpretation of the Phrase ``Significant Portion of its Range'' (79 
FR 37578, July 1, 2014).\1\
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    \1\ Although two district courts have held in litigation 
involving the United States Fish and Wildlife Service (USFWS) that 
the Final Policy's specific definition of ``significant'' is too 
narrow (Center for Biological Diversity, et al. v. Jewell, CV-14-
02506 (D. Ariz.); Desert Survivors, et al. v. Dep't of Interior, 16-
cv-01165 (N.D. Cal.)), all other provisions of the Final Policy 
continue in full effect for both Services, including the provisions 
establishing the overall process for sequencing determinations. 
Nevertheless, our approach is reached and applied independently of 
the Final Policy.
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    Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account any efforts being made by any State or 
foreign nation or political subdivision thereof to protect the species. 
16 U.S.C. 1533(b)(1)(A). Therefore, prior to making a listing 
determination, we also assess such protective efforts to determine if 
they ameliorate the existing threats to a degree that would affect the 
listing status of the species under the Act. Any relevant foreign 
efforts are directly evaluated under standards deducible from section 
4(b)(1)(A) and the statute's structure.

Status Review

    A summary of basic biological and life history information of the 
chambered nautilus can be found in the proposed rule and the status 
review report. In reaching our proposed listing determination, we used 
the best available scientific and commercial data on the chambered 
nautilus, which are summarized in the status review report and 
incorporated herein.
    Scientific conclusions about the overall risk of extinction faced 
by the chambered nautilus under present conditions and in the 
foreseeable future are based on our evaluation of the species' 
demographic risks and ESA 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 chambered nautilus. After considering conservation efforts by 
foreign nations to protect the species, as required under section 
4(b)(1)(A), we proposed to list the species as a ``threatened 
species.''
    For the assessment of extinction risk for the chambered nautilus, 
the ``foreseeable future'' was considered to extend out several decades 
(> 40 years). Given the species' life history traits, with longevity 
estimated to be at least 20 years, maturity ranges from 10 to 17 years, 
with very low fecundity (potentially 10-20 eggs per year with a 1-year 
incubation period), it would likely take more than a few decades (i.e., 
multiple generations) for any recent management actions to be realized 
and reflected in population abundance indices. Similarly, the impact of 
present threats to the species could be realized in the form of 
noticeable population declines within this time frame, as demonstrated 
in the available survey and fisheries data. As the main potential 
operative threat to the species is overutilization, this time frame 
would allow for reliable predictions regarding the impact of current 
levels of fishery-related mortality on the biological status of the 
species. Additionally, this time frame allows for consideration of the 
previously discussed impacts on chambered nautilus habitat from climate 
change and the potential effects on the status of this species.
    To make our final listing determination, we reviewed all comments 
and information provided during the public comment period on the 
proposed rule. In general, this additional information merely 
supplemented, and did not differ significantly from, the information 
presented in the proposed rule. Where new information was received, we 
have reviewed it and present our evaluation of the information in this 
final rule. The new information received was not so significant that we 
are relying on it for our final determination.
    With this rule, we finalize our listing determination for the 
chambered nautilus as a ``threatened species.''

Summary of Comments

    In response to our request for public comments on the proposed 
rule, we received comments and/or relevant information from 16 parties. 
The large majority of commenters supported the proposed listing 
determination but provided no new or substantive data or information 
relevant to the listing of the chambered nautilus. We also solicited 
comments from the countries where the chambered nautilus occurs via 
their ambassadors and received a response from the Philippines Bureau 
of Fisheries and Aquatic Resources and the Government of India. 
Summaries of the substantive public comments received and our responses 
are provided below and organized by topic.

Comments on Available Data, Trends, and Analysis

    Comment 1: Two commenters provided their personal observations 
regarding the decline of the chambered nautilus in the Indo-Pacific. 
One commenter noted that during their 20 years as a researcher studying 
the chambered nautilus, 1-2 of their study sites are now 100 percent 
depleted and others are rapidly following suit. Another commenter 
provided information on historical and current nautilus fishing 
practices in the Philippines. The commenter stated that nautilus 
fishing was more lucrative in the 1970s and 1980s in the region of 
Central Visayas (particularly the Ta[ntilde]on Strait municipalities) 
compared to the end of the 1990s, resulting in reduced fishing effort 
of the species. In March 2017, interviews conducted with three shell 
exporters on Mactan Islands (the major export hub for sea shells from 
Philippine waters) revealed that they had a few hundred nautilus shells 
in stock (despite the ban on trade in nautilus shells). The commenter 
also stated that there are known locations in Central Palawan as well 
as the southern tip of the island where nautilus fisheries were or 
still exist. However, the commenter noted that it is unclear whether 
the nautilus is a target species or just landed as bycatch. The 
commenter stressed the importance of obtaining information on current 
and historical fishing activities in order to obtain a better 
understanding of the present status of nautilus populations in the 
Philippines.
    Response: We thank the commenters for the information. We have 
updated the status review report (Miller 2018) to reflect the new 
information provided regarding the March 2017 interviews, which further 
supports our conclusion that existing regulations to protect N. 
pompilius from overutilization throughout the Philippines are 
inadequate. We agree with the commenter that fisheries information is

[[Page 48979]]

useful when examining the status of nautilus populations.
    Comment 2: One commenter provided new published information on the 
genetics of the Nautilus genus, including an estimated effective 
population size of N. pompilius across the Indo-Pacific. Specifically, 
the commenter referenced the study by Combosch et al. (2017), which 
used genome-wide double digest restriction-site associated DNA data to 
re-analyze nautiloid species taxonomy. The commenter noted that the 
results from the new study suggest that the geographic distribution of 
N. pompilius may be smaller than previously thought, and would not 
include nautilids found in the Coral Sea and Southwest Pacific. 
However, the commenter noted that further research is needed to 
validate the results before a final decision on the actual geographical 
range of N. pompilius is made. In fact, the commenter stated that given 
that further research is still necessary, NMFS should rely on the best 
available science and list N. pompilius as one species (one 
``superspecies'') throughout its range, as stated in the proposed rule.
    In terms of effective population size, the commenter noted that the 
estimates provided in Combosch et al. (2017) generally tend to be in 
agreement with previous genetic studies (i.e., Williams et al. (2015)). 
While the estimates are rather large (for example, ~4.5 million 
specimens of N. pompilius may potentially exist in the entire Indo-
Pacific), the commenter cautioned that the data are more than two 
decades old and represent what the species could potentially support 
based on its current genetic diversity, not its current living 
population abundance estimate. The commenter cautioned that the 
substantial removal of individuals from N. pompilius populations in 
recent decades, and potential losses in genetic diversity, would take 
some time before being reflected in genetic-based effective population 
sizes. Ultimately, the commenter requested that the new genetic 
information, discussed above, be included in the final rule.
    Response: We reviewed the paper referenced by the commenter 
(Combosch et al. 2017) and have updated the status review report with 
this new information. Specifically, Combosch et al. (2017) indicate the 
existence of three main Nautilus clades: South Pacific, Coral Sea, and 
Indo-Pacific. The authors contend that these three clades consist of 
five distinct genetic clusters of Nautilus that most likely correspond 
to five different species. Three of these species exist in the South 
Pacific, including N. macromphalus in New Caledonia and two undescribed 
species (one around American Samoa and Fiji and the other around 
Vanuatu). A fourth species is found from the Great Barrier Reef to 
eastern Papua New Guinea, which the authors consider to be N. 
stenomphalus. The fifth species, N. pompilius, occurs from Western 
Australia throughout Indonesia and the Philippines and west to Palau. 
The authors also suggest that N. belauensis and N. repertus should be 
synonymized with N. pompilius as they are both nested within this Indo-
Pacific clade.
    While the results from Combosch et al. (2017) contrast with our 
characterization of N. pompilius and its range within the status review 
report and proposed rule, we find that this new information does not 
change our recognition of N. pompilius as a valid species for listing 
under the ESA, or our description of the species and its range based on 
the best available information. As noted in the status review report 
and proposed rule, nautilus taxonomy is controversial and is still not 
fully resolved. Until there is a new scientific agreement regarding the 
taxonomy of the Nautilus genus, we will continue to follow the latest 
scientific consensus as acknowledged by the Integrated Taxonomic 
Information System, with N. pompilius identified as one of five 
recognized species (N. pompilius, N. belauensis, N. macromphalus, N. 
repertus, and N. stenomphalus). In terms of range, we find that the 
best available information suggest that N. pompilius is found 
throughout the Indo-Pacific and within the South Pacific, including 
waters off American Samoa, Australia, Fiji, India, Indonesia, Malaysia, 
New Caledonia, Papua New Guinea, Philippines, Solomon Islands, and 
Vanuatu. Nautilus pompilius is also possibly native to China, Myanmar, 
Western Samoa, Thailand, and Vietnam.
    With respect to the new effective population size estimates in 
Combosch et al. (2017), we have updated the status review report with 
this data. The authors estimated median current effective population 
sizes for each of the genetic clades mentioned above (Indo-Pacific, 
Coral Sea, South Pacific) and found large population sizes in the 
panmictic Indo-Pacific population (4.5 x 10\6\ specimens; 3.2 x 10\6\ 
for the Philippines subpopulation) and in the Coral Sea (7.2 x 10\6\ 
for the Great Barrier Reef and 5.7 x 10\6\ for Papua New Guinea). The 
South Pacific clade had much smaller effective population sizes, with 
New Caledonia at 0.34 x 10\6\ specimens, Vanuatu at 0.67 x 10\6\ 
specimens, and American Samoa/Fiji population at 0.41 x 10\6\ 
specimens. As the commenters note, these estimates are similar to those 
from previous genetic studies as reported Williams et al. (2015). 
Specifically, Williams et al. (2015) estimated an effective population 
size for the Philippines of 3.2 x 10\6\ individuals, and 2.6 x 10\6\ 
individuals for Western Australia. While this new data further support 
the suggestion that the species may have high genetic diversity, we 
agree with the commenters that the current level of genetic diversity 
across the entire range of the species remains highly uncertain. Due to 
the low fecundity and long generation time of the species, genetic 
responses to current exploitation rates (such as decreases in genetic 
diversity) may not yet be detectable. We have updated the status review 
report with this new data but do not find that it changes our 
conclusions regarding the risk that genetic diversity currently poses 
to the species.

Comments on Existing Regulatory Mechanisms

    Comment 3: The Philippines Bureau of Fisheries and Aquatic 
Resources (the Bureau) provided information regarding existing 
regulations. Specifically, the Bureau stated that under Section 102 (b) 
of the Philippine Fisheries Code of 1998 (RA 8550 as amended by RA 
10654), it is unlawful to fish, take, catch, gather, sell, purchase, 
possess, transport, export, forward or ship out aquatic species listed 
under Appendix II and III of the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES). Based on the 
listing of the chambered nautilus in Appendix II of CITES during the 
Conference of the Parties in 2016, the prohibition became effective on 
January 2, 2017. However, the export of government-inventoried 
chambered nautilus Pre-Convention specimens used in the shell craft 
industry of Cebu, Philippines is allowed until 2018.
    Response: We thank the Bureau for its comment and have updated the 
status review report to reflect this regulation. However, at this time, 
we have no information regarding the effectiveness of this prohibition, 
including subsequent enforcement efforts, in protecting the chambered 
nautilus from continued overutilization throughout the Philippines. 
Available information from the status review report suggests 
enforcement of current regulations may be lacking, with evidence of 
nautilus products being sold in shops in Cebu, the Western Visayas 
region, and Palawan as recently as 2017, despite local ordinances that 
prohibit the trade and harvest of N. pompilius. Given the significant 
harvest and trade of the

[[Page 48980]]

chambered nautilus throughout the Philippines (with the Philippines 
being the number one supplier of nautilus commodities to the United 
States) and present uncertainty regarding the enforcement of existing 
regulatory measures and subsequent adequacy in reducing the threat of 
overutilization to the species in the foreseeable future, we find that 
our conclusions regarding threats to the species and its extinction 
risk remains the same.
    Comment 4: The Government of India (the Government) provided 
information on India's existing regulations related to the protection 
of the chambered nautilus. Specifically, the Government commented that 
the chambered nautilus is listed on Schedule I of India's Wild Life 
(Protection) Act, 1972, which provides the species with the highest 
degree of protection from hunting and trade. Commercial trade of N. 
pompilius in India is not permitted. Additionally, the Government 
states that there are no reports of captures of chambered nautiluses in 
Indian fishery landing centers. However, the Government notes that 
illegal trade in the species cannot be ruled out.
    The Government of India also commented that India, along with Fiji 
and the United States, proposed the listing of Nautilidae on Appendix 
II of CITES during the 17th meeting of the Conference of the Parties to 
CITES. Considering this, the Government states that India has no 
objections to the listing of the species as threatened under the ESA.
    Response: We thank the Government of India for its comment and 
support of the listing of chambered nautilus under the ESA. In the 
status review report, we recognized the listing of N. pompilius under 
Schedule I of the Indian Wild Life (Protection) Act of 1972; however, 
we found information indicating that N. pompilius shells were still 
being collected in Indian waters and sold in major coastal tourist 
curio markets as recently as 2007 (John et al. 2012). In fact, 
interviews with retail vendors suggested that a large majority were 
aware of the Indian Wild Life Protection Act and legal ramifications of 
selling protected species yet continued to sell large quantities of 
protected marine mollusks and corals in the curio shops (John et al. 
2012). Additionally, based on the shell size of the chambered 
nautiluses in the curio shops, we found it likely that the inventory is 
comprised entirely of shells from immature individuals. While India may 
prohibit the harvest and trade of chambered nautilus, the best 
available information suggests that the species is still being 
exploited, with the high demand for nautilus shells and profits from 
the illegal curio trade resulting in the overutilization of N. 
pompilius that will continue to threaten populations within Indian 
waters. With no new information to consider regarding the effectiveness 
of enforcement of India's existing regulatory mechanisms, we find that 
our conclusions regarding threats to the species and its extinction 
risk remains the same.

Comments on Proposed Listing Determination

    Comment 5: We received a number of comments that supported the 
proposed listing of the chambered nautilus as a threatened species 
under the ESA. A large majority of the comments were general statements 
of support for listing and were not accompanied by substantive 
information or references. Some of the comments were accompanied by 
information that is consistent with, or cited directly from, our 
proposed rule or status review report.
    Response: Given that no new substantive information was provided in 
these comments that was not already considered in the proposed rule or 
status review report, our conclusion regarding the status of the 
chambered nautilus remains the same. We acknowledge these comments and 
the considerable public interest expressed in support of the 
conservation of the chambered nautilus.
    Comment 6: Several commenters requested that we list the chambered 
nautilus as an endangered species under the ESA. One commenter stated 
that listing as endangered is warranted for a host of reasons 
including: how little is known about the biology and ecology of the 
chambered nautilus; lack of information on population abundance and 
trends in vast portions of the species' range; the species' 
reproductive characteristics (i.e., long-lived, late maturing, slow 
growing); its patchy distribution, geographic isolation, specialized 
habitat needs, and genetic distinction between populations; the massive 
level of international trade in the species (including in to the United 
States); and the lack of effective regulations protecting the species 
where it exists. The commenter suggested that the ``precautionary 
principle'' would indicate that the species should be listed as an 
endangered species.
    Response: The commenters did not provide any new information 
regarding threats to the species or its current status that was not 
already considered in the status review report or proposed rule. One 
commenter cited the proposed rule and status review report to support 
their argument of listing the chambered nautilus as, ``preferably,'' an 
endangered species. With no new information to consider, our conclusion 
regarding the status of the chambered nautilus remains the same.
    Regarding the request to use a precautionary approach when making a 
listing decision, it would be inappropriate apply a presumption in 
favor of a particular listing status under the Act. Under the framework 
of the ESA, the threshold determination of whether or not to list a 
species is required to be a scientific conclusion based solely on the 
best available scientific and commercial information. In carrying out 
other provisions under the ESA that come into play after the time of 
listing, such as conducting consultations under section 7, it may be 
appropriate to apply a ``precautionary approach'' or give the benefit 
of the doubt to the species. But such considerations do not apply at 
the step of making a listing determination under Section 4. Trout 
Unlimited v. Lohn, 645 F. Supp. 2d 929, 947-48 (D. Or. 2007). We simply 
may not list a species as endangered unless the best available 
scientific and commercial information supports concluding that it meets 
the statutory definition of an ``endangered species'' at the time of 
listing.

Comments on Establishing Protective Regulations Under Section 4(d) of 
the ESA

    Comment 7: Two commenters urged us to promulgate a section 4(d) 
rule to establish import prohibitions of the species into the United 
States and other trade regulations, as well as to require permits in 
order to address the threat of unsustainable overharvesting of the 
species that supports the international shell trade. As support for 
their request, one commenter stated that the CITES protection for the 
species will not be enough to prevent it from becoming endangered in 
the foreseeable future because illegal trade is likely to happen. 
Additionally, the commenter noted that without ESA protections, 
unregulated interstate sale (including from American Samoa) would 
continue. Thus, even with the CITES Appendix II listing, the commenter 
stated that regulatory mechanisms remain inadequate to ensure the 
species' survival in the foreseeable future. The commenters noted that 
a 4(d) rule restricting trade, including import prohibitions, would 
allow the U.S. authority to review CITES non-detriment findings and 
make their own determinations as well as ensure adequate trade 
restrictions where domestic efforts to protect the species in foreign 
countries have failed.

[[Page 48981]]

    Response: Under the ESA, if a species of fish or wildlife is listed 
as endangered, a number of protections set out in section 9(a)(1) of 
the Act (16 U.S.C. 1538(a)(1)) automatically apply. Among other 
prohibitions, any ``take'' of, import into or export from the United 
States, and interstate or foreign commerce in the species, is illegal, 
subject to certain exceptions. In the case of a species listed as 
threatened, the protections of section 9 do not automatically apply. 
However, section 4(d) of the ESA gives the Secretary the authority to 
issue such regulations as he or she deems necessary and advisable to 
provide for the conservation of the species. The Secretary may also 
prohibit with respect to a threatened species any or all of the acts 
prohibited under section 9(a)(1) of the ESA. 16 U.S.C. 1533(d).
    While the commenter stated that CITES protection for the species 
would not be sufficient to prevent the chambered nautilus from becoming 
endangered in the foreseeable future, the commenter pointed to no 
information regarding current implementation efforts and enforcement of 
CITES requirements, or overall effectiveness of the CITES Appendix II 
listing in ensuring the sustainable trade of the chambered nautilus to 
support their assertion. If sustainable trade in this species is 
achieved as a result of the CITES Appendix II listing, the need for 
additional protective measures would be unnecessary; however, at this 
time, we are still evaluating the effectiveness of the CITES Appendix 
II listing of the chambered nautilus. Also, in response to the 
commenter's concerns regarding interstate commerce, as mentioned in the 
proposed rule and status review report, we found no evidence of local 
utilization or commercial harvest of chambered nautiluses in American 
Samoa. Therefore, any sale of non-imported chambered nautilus shells in 
interstate commerce would likely involve collected drift shells from 
American Samoa (i.e., the only portion of the species' range in U.S. 
waters). As such, we do not agree with the commenter that this 
interstate commerce places the species at risk of extinction at this 
time.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information that would cause us to change our 
proposed listing determination. We did, however, make several revisions 
to the final status review report (Miller 2018) to incorporate, as 
appropriate, relevant information received in response to our request 
for public comments.
    Specifically, we updated the status review to include new 
information regarding the sale of nautilus shells in the Philippines 
(K. Schroeder, pers. comm. 2017), the taxonomy of the species (Combosch 
et al. 2017), and estimates of effective population sizes for nautilus 
populations (Combosch et al. 2017). As noted above, with more detailed 
discussion in the previous comment responses, consideration of this new 
information did not alter any conclusions (and in some cases further 
supported our conclusions) regarding the threat assessment or 
extinction risk analysis for the chambered nautilus. Thus, the 
conclusion contained in the status review report and determination 
based on that conclusion in the proposed rule are reaffirmed in this 
final action.

Species Determination

    As noted previously, nautilus taxonomy is controversial and still 
not fully resolved. However, the current scientific consensus is that 
N. pompilius is a recognized taxonomically-distinct species and, 
therefore, meets the definition of ``species'' pursuant to section 3 of 
the ESA, making it eligible for listing under the ESA.

Summary of Demographic Risk Analysis

    As stated previously and as discussed in the proposed rule (82 FR 
48948, October 23, 2017), we conducted a demographic risk analysis for 
the chambered nautilus. This analysis evaluated the population 
viability characteristics and trends data available for the species to 
determine the potential risks these demographic factors pose to the 
species. Based on the available data, we found that the species exists 
as small and isolated populations throughout its range, with low rates 
of dispersal and little gene flow among populations, particularly those 
that are separated by large geographic distances and deep ocean 
expanses. Genetic variability within the species has likely been 
reduced due to bottleneck events and genetic drift in the small and 
isolated N. pompilius populations throughout its range. Additionally, 
the data indicate that the chambered nautilus is a slow-growing and 
late-maturing species (with maturity estimated between 10 and 17 years, 
and longevity at least 20 years) with likely very low productivity and, 
thus, is extremely susceptible to decreases in its abundance. In fact, 
the data suggest that many chambered nautilus populations are in 
decline and may be extirpated in the next several decades.
    The comments that we received on the proposed rule provided 
information that was either already considered in our analysis, was not 
substantial or relevant, or was consistent with or reinforced 
information in the status review report and proposed rule. Therefore, 
our consideration of the information received has not altered our 
analysis of the demographic risks to the species.

Summary of ESA Section 4(a)(1) Factors Affecting the Chambered Nautilus

    As stated previously and as discussed in the proposed rule (82 FR 
48948, October 23, 2017), we considered whether any one or a 
combination of the five threat factors specified in section 4(a)(1) of 
the ESA are contributing to the extinction risk of the chambered 
nautilus and result in the species meeting the definition of 
``endangered species'' or ``threatened species.'' The primary threat to 
the chambered nautilus is overutilization through commercial harvest to 
meet the demand for the international nautilus shell trade. Out of the 
10 nations where N. pompilius is known to occur, potentially half have 
targeted nautilus fisheries either historically or currently. These 
waters comprise roughly three-quarters of the species' known range. 
Current estimated levels of harvest to meet the international demand 
are projected to lead to extirpations of local N. pompilius populations 
as has been observed in the past. Additionally, efforts to address 
overutilization of the species through regulatory measures appear 
inadequate, with evidence of targeted fishing of and trade in the 
species, particularly in Indonesia, Philippines, and China, despite 
prohibitions.
    The comments that we received on the proposed rule provided 
information that was either already considered in our analysis, was not 
substantial or relevant, or was consistent with or reinforced 
information in the status review report and proposed rule. Therefore, 
our consideration of the information received has not led us to change 
our conclusions regarding any of the section 4(a)(1) factors or their 
interactions. All of the information, discussion, and conclusions 
regarding the factors affecting the chambered nautilus contained in the 
final status review report (Miller 2018) and the proposed rule is 
reaffirmed in this final action.

[[Page 48982]]

Extinction Risk

    As discussed previously, the status review report evaluated the 
demographic risks to the chambered nautilus 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 species, we rated the species' 
extinction risk according to a qualitative scale (high, moderate, and 
low risk). We found that N. pompilius is at a moderate risk of 
extinction throughout its range. We explained in the proposed rule that 
a species is at a ``moderate risk'' of extinction when it is on a 
trajectory that puts it at a high level of extinction risk in the 
foreseeable future. A species may be at moderate risk of extinction 
because of projected threats or declining trends in abundance, 
productivity, spatial structure, or diversity. While the chambered 
nautilus is still traded in considerable amounts (upwards of thousands 
to hundreds of thousands annually), with evidence of new sites being 
established for nautilus fishing (e.g., in Indonesia, Philippines, 
Papua New Guinea), and areas of stable, unfished populations (e.g., 
eastern Australia, American Samoa), we concluded that without adequate 
measures controlling the overutilization of the species, N. pompilius 
is on a trajectory where its overall abundance will likely see 
significant declines within the foreseeable future eventually reaching 
the point where the species' continued persistence will be in jeopardy. 
We, therefore, determined that the species is not presently in danger 
of extinction throughout its range but is likely to become so within 
the foreseeable future (i.e., the species is a threatened species). 
Because we find that the chambered nautilus is likely to become an 
endangered species within the foreseeable future throughout its range, 
we do not go on to consider whether the species might be threatened or 
endangered in a significant portion of its range, for the reasons 
explained in the Listing Species Under the Endangered Species Act 
section above and more fully in the proposed rule.
    The information received from public comments on the proposed rule 
was either already considered in our analysis, was not substantial or 
relevant, or was consistent with or reinforced information in the 
status review report and proposed rule. Therefore, our consideration of 
the information received has not altered our view of the extinction 
risk of the chambered nautilus. Our conclusion regarding the extinction 
risk for the chambered nautilus remains the same. Therefore, all of the 
information, discussion, and conclusions on the extinction risk of the 
chambered nautilus contained in the final status review report and the 
proposed rule is reaffirmed in this final action.

Protective Efforts

    In addition to regulatory mechanisms (considered under ESA section 
4(a)(1)(D)), we considered other efforts being made to protect the 
chambered nautilus (pursuant to ESA section 4(b)(1)(A)). The efforts we 
evaluated included a non-profit campaign devoted to raising the 
awareness of threats to the chambered nautilus and the potential for 
aquaculture or artificial propagation programs to satisfy the trade 
industry demand for shells and restore wild populations. We considered 
whether such protective efforts sufficiently ameliorated the identified 
threats to the point that they would alter the conclusions of the 
extinction risk analysis for the species so as to possibly avoid the 
need to list. None of the information we received on the proposed rule 
affected our conclusions regarding conservation efforts to protect the 
chambered nautilus. Thus, all of the information, discussion, and 
conclusions on the protective efforts for the chambered nautilus 
contained in the final status review report and proposed rule are 
reaffirmed in this final action.

Final Determination

    We have reviewed the best available scientific and commercial 
information, including the petition, the information in the final 
status review report (Miller 2018), the comments of peer reviewers, and 
public comments. None of the information received since publication of 
the proposed rule (82 FR 48948, October 23, 2017) altered our analyses 
or conclusions that led to our determination for the chambered 
nautilus. Therefore, the determination in the proposed rule is 
reaffirmed in this final rule and stated below.
    Based on the best available scientific and commercial information, 
and after considering efforts being made to protect N. pompilius, we 
conclude that the chambered nautilus is not currently in danger of 
extinction throughout its range but is likely to become so in the 
foreseeable future throughout all of its range from threats of 
overutilization and the inadequacy of existing regulatory mechanisms. 
Therefore, we have determined that the chambered nautilus meets the 
definition of a ``threatened species'' and list it is as such 
throughout its range under the ESA.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include designation of critical habitat, to 
the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)(A)); 
development of recovery plans (16 U.S.C. 1533(f)); Federal agency 
consultations 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 critical habitat, should it be 
designated (16 U.S.C. 1536); and, for endangered species, prohibitions 
on taking and certain other activities (16 U.S.C. 1538). Prohibitions 
on taking, or other protections, may also be extended through 
regulation to threatened species. (16 U.S.C. 1533(d)). In addition, 
recognition of the species' imperiled status through listing can 
indirectly inform voluntary conservation actions by Federal and State 
agencies, foreign entities, private groups, and individuals.

Protective Measures and Prohibitions

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS 
regulations (50 CFR part 402) 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. Our section 7 regulations 
require the responsible Federal agency to initiate formal consultation 
if a Federal action may affect a listed species or its critical habitat 
(50 CFR 402.14(a)). Examples of Federal actions that may affect the 
chambered nautilus include: Fishery harvest and management practices, 
energy projects, discharge of pollution from point sources, non-point 
source pollution, dredging, mining, pile-driving, military activities, 
toxic waste and other pollutant disposal, and shoreline development. 
This list is not exhaustive, and the extent to which consultation is 
required will depend on the particular facts of any particular proposed 
Federal action.
    In the case of threatened species, ESA section 4(d) gives the 
Secretary discretion to issue such regulations as he or she deems 
necessary and advisable for the conservation of the species. 16 U.S.C. 
1533(d). The Secretary may also decide to extend some or all the 
prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) to 
the species.

[[Page 48983]]

    As mentioned in the status review report and proposed rule, all 
nautilus species were included on Appendix II of CITES in October 2016, 
with the listing going into effect in January 2017. Export of nautilus 
products, such as shells, requires CITES permits that ensure the 
products were legally acquired and that the Scientific Authority of the 
State of export has advised that such export will not be detrimental to 
the survival of that species (after taking into account factors such as 
its population status and trends, distribution, harvest, and other 
biological and ecological elements). In the proposed rule, this CITES 
protection was determined not to have ameliorated the threats to the 
threatened chambered nautilus because the CITES listing had only 
recently gone into effect and, therefore, we lacked information that 
would allow us to fully evaluate its adequacy in decreasing the threat 
of overutilization. We are still in the process of collecting 
information in order to evaluate the effectiveness of this CITES 
Appendix II listing of the chambered nautilus as a tool to ensure the 
sustainable trade in this species. If we determine that additional 
measures may be necessary to safeguard the species against future 
depletion of populations or potential extinction of the chambered 
nautilus, then we may issue protective regulations under section 4(d) 
or extend some or all of the prohibitions of section 9(a)(1) of the ESA 
that automatically apply with respect to endangered species. However, 
at this time, we are not proposing to apply such prohibitions to the 
chambered nautilus. We may consider potential protective regulations 
pursuant to section 4(d) for chambered nautilus in a future rulemaking.

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, 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 (i.e., the point at which it is ``recovered''). 
16 U.S.C. 1532(3). Section 4(a)(3)(A) of the ESA (16 U.S.C. 
1533(a)(3)(A)) requires that, to the maximum extent prudent and 
determinable, critical habitat be designated concurrently with the 
listing of a species. Designations of critical habitat must be based on 
the best scientific data available and must take into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat.
    At this time, we find that critical habitat for the chambered 
nautilus is not determinable because data sufficient to perform the 
required analyses are lacking. As stated in the status review report 
and proposed rule, while it is known that chambered nautiluses are 
extreme habitat specialists, found in association with steep-sloped 
forereefs with sandy, silty, or muddy-bottomed substrates, and in 
depths from around 100 meters to 500 meters, the presence of these 
features does not necessarily indicate the likelihood of chambered 
nautilus occurrence. Chambered nautiluses have a patchy distribution 
and, given the difficulty associated with accessing their habitat and 
observing the species for research purposes, very little is known 
regarding important aspects of the species' life history, such as 
reproduction and growth in the wild. As such, we find that sufficient 
information is not currently available to: (1) Identify the physical 
and biological features essential to conservation of the species at an 
appropriate level of specificity, particularly given the uncertainty 
regarding habitat features necessary to support important life history 
needs and the irregularity and unpredictability of chambered nautiluses 
within areas they are known to occur, (2) determine the specific 
geographical areas that contain the physical and biological features 
essential to conservation of the species, and (3) assess the impacts of 
the designation. Therefore, public input on features and areas under 
U.S. jurisdiction that may meet the definition of critical habitat for 
the chambered nautilus is invited. Additional details about specific 
types of information sought are provided in the Information Solicited 
section later in this document. Input may be sent to the Office of 
Protected Resources in Silver Spring, Maryland (see ADDRESSES). Please 
note that we are not required to respond to any input provided on this 
matter.

Information Solicited

    Because critical habitat is not currently determinable for the 
chambered nautilus, we are not proposing to designate critical habitat 
in this rulemaking. We request interested persons to submit relevant 
information regarding the identification of critical habitat of the 
chambered nautilus, including specific areas within the geographical 
area occupied by the species that include the physical or biological 
features essential to the conservation of the species and that may 
require special management considerations or protection. Areas outside 
the occupied geographical area should also be identified if such areas 
themselves are essential for the conservation of the species. ESA 
implementing regulations at 50 CFR 424.12(g) specify that critical 
habitat shall not be designated within foreign countries or in other 
areas outside of U.S. jurisdiction. Therefore, we request information 
only on potential areas of critical habitat within U.S. jurisdiction.
    Section 4(b)(2) of the ESA requires the Secretary to consider the 
economic impact, impact on national security, and any other relevant 
impact of designating a particular area as critical habitat. Section 
4(b)(2) also gives the Secretary discretion to consider excluding from 
a critical habitat designation any particular area where the Secretary 
finds that the benefits of exclusion outweigh the benefits of including 
the area in the designation, unless excluding that area will result in 
extinction of the species.
    To inform our consideration of potential critical habitat, we also 
request information describing the following with respect to the 
relevant features or areas: (1) Activities that may affect the 
essential features or threats to the essential features, or to an area 
of potential critical habitat itself; (2) activities that could be 
affected by designating specific areas as critical habitat; and (3) the 
positive and negative economic, national security and other relevant 
impacts, including benefits to the recovery of the species, likely to 
result if specific areas are designated as critical habitat. We seek 
information regarding the conservation benefits of designating areas 
under U.S. jurisdiction as critical habitat. In keeping with the 
guidance provided by the Office of Management and Budget (2000; 2003), 
we seek information that would allow the monetization of these effects 
to the extent possible, as well as information on qualitative impacts.
    Information submitted may include, but need not be limited to: (1) 
Scientific or commercial publications; (2) administrative reports, maps 
or other graphic materials; and (3) information received from experts. 
Information and data are particularly sought concerning: (1) Maps and 
specific information describing the amount, distribution, and use type 
(e.g., foraging, reproduction) of chambered nautilus habitats, as well 
as any additional information on occupied

[[Page 48984]]

and unoccupied habitat areas; (2) the reasons why any habitat should or 
should not be included in a designation of critical habitat under 
sections 3(5)(A) and 4(b)(2) of the ESA; (3) information regarding the 
benefits of designating particular areas as critical habitat or of 
excluding particular areas; (4) current or planned activities in the 
areas that might be proposed for designation and their possible 
impacts; (5) any foreseeable economic or other potential impacts 
resulting from designation, and in particular, any impacts on small 
entities; (6) whether specific unoccupied areas may be essential to 
provide additional habitat areas for the conservation of the species; 
and (7) potential peer reviewers for a proposed critical habitat 
designation, including persons with biological and economic expertise 
relevant to the species, region, and designation of critical habitat. 
We solicit information from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party (see ADDRESSES).

References

    A list of all references cited in this final rule is available at 
www.regulations.gov (identified by docket number NOAA-NMFS-2016-0098) 
or available upon request (see ADDRESSES). The peer review report is 
available at: http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. Additional information can be found on our website at 
https://www.fisheries.noaa.gov/species/chambered-nautilus.

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, 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 216-6A (2016) and 
Companion Manual ``Policy and Procedures for Compliance with the 
National Environmental Policy Act and Related Authorities'' at 2 
(2017).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

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

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This rule is not an E.O. 13771 regulatory action because this rule 
is exempt from review under E.O. 12866.

Executive Order 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct ccompliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this final rule; therefore this 
action does not have federalism implications as that term is defined in 
E.O. 13132. 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

    Endangered and threatened species.

    Dated: September 24, 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 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 a 
subheading for ``Molluscs'' after the entry for ``Sturgeon, green'' 
under the ``Fishes'' subheading, and by adding an entry for ``Nautilus, 
chambered'' underneath the ``Molluscs'' table subheading to read as 
follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Species \1\                                               Citation(s) for
-----------------------------------------------------------------------------------------------         listing             Critical        ESA rules
            Common name                  Scientific name        Description of listed entity       determination(s)         habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Molluscs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nautilus, chambered................  Nautilus pompilius....  Entire species...................  [Insert Federal                     NA               NA
                                                                                                 Register page where
                                                                                                 the document begins],
                                                                                                 September 28, 2018.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).


[[Page 48985]]

[FR Doc. 2018-21114 Filed 9-27-18; 8:45 am]
BILLING CODE 3510-22-P