Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Multiple Species and Subpopulations of Marine Mammals as Threatened or Endangered Under the Endangered Species Act, 9880-9890 [2014-03735]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 35 (Friday, February 21, 2014)]
[Notices]
[Pages 9880-9890]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03735]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 131018873-4107-01]
RIN 0648-XC924


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Multiple Species and Subpopulations of Marine Mammals as 
Threatened or Endangered Under the Endangered Species Act

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

ACTION: Notice of 90-day petition finding; request for information.

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[[Page 9881]]

SUMMARY: We (NMFS) announce a 90-day finding on a petition to list two 
species and three distinct population segments of marine mammals as 
threatened or endangered under the Endangered Species Act (ESA). We 
find that the petition does not present substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted for the Gal[aacute]pagos fur seal (Arctocephalus 
galapagoensis). We also find that the petition presents substantial 
information indicating that the petitioned action may be warranted for 
Hector's dolphin (Cephalorhynchus hectori), the Baltic Sea 
subpopulation of harbor porpoise (Phocoena phocoena), the eastern 
Taiwan Strait subpopulation of the Indo-Pacific humpback dolphin (Sousa 
chinensis), and the Fiordland subpopulation of bottlenose dolphin 
(Tursiops truncatus). We will conduct status reviews for this species 
and three subpopulations to determine if the petitioned actions are 
warranted. To ensure that these status reviews are comprehensive, we 
are soliciting scientific and commercial information pertaining to 
these marine mammals from any interested party.

DATES: Information and comments on the subject action must be received 
by April 22, 2014.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2013-0151, by any of the 
following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0151, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous), although submitting comments anonymously will prevent us 
from contacting you if we have difficulty retrieving your submission. 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.
    Copies of the petition and related materials are available upon 
request from the Director, Office of Protected Resources, 1315 East 
West Highway, Silver Spring, MD 20910, or online at: www.nmfs.noaa.gov/pr/species/petition81.htm.

FOR FURTHER INFORMATION CONTACT: Lisa Manning, Office of Protected 
Resources, 301-427-8466.

SUPPLEMENTARY INFORMATION: 

Background

    On July 15, 2013, we received a petition from the WildEarth 
Guardians to list 81 marine species as threatened or endangered under 
the ESA and to designate critical habitat under the ESA. Copies of this 
petition are available from us (see ADDRESSES). Of the 81 species 
petitioned for listing, this notice addresses the marine mammals: 
specifically, the Gal[aacute]pagos fur seal (Arctocephalus 
galapagoensis), Hector's dolphin (Cephalorhynchus hectori); the Baltic 
Sea subpopulation of harbor porpoise (Phocoena phocoena), the eastern 
Taiwan Strait subpopulation of the Indo-Pacific humpback dolphin (Sousa 
chinensis), and the Fiordland subpopulation of bottlenose dolphin 
(Tursiops truncatus). Separate 90-day findings are being drafted or 
have already issued for the other species addressed by the petition.
    Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et 
seq.), requires, to the maximum extent practicable, that within 90 days 
of receipt of a petition to list a species as threatened or endangered, 
the Secretary of Commerce make a finding on whether that petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted, and to promptly publish 
the finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we 
find that substantial scientific or commercial information in a 
petition indicates that the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned, which includes 
conducting a comprehensive review of the best available scientific and 
commercial information. Within 12 months of receiving the petition, we 
must conclude the review with a finding as to whether, in fact, the 
petitioned action is warranted. Because the finding at the 12-month 
stage is based on a significantly more thorough review of the available 
information, a ``may be warranted'' finding at the 90-day stage does 
not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A species, subspecies, or DPS is 
``endangered'' if it is in danger of extinction throughout all or a 
significant portion of its range, and ``threatened'' if it is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range (ESA sections 3(6) and 3(20), 
respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our 
implementing regulations, the determination of whether a species is 
threatened or endangered shall be based on any one or a combination of 
the following five section 4(a)(1) factors: The present or threatened 
destruction, modification, or curtailment of habitat or range; 
overutilization for commercial, recreational, scientific, or 
educational purposes; disease or predation; inadequacy of existing 
regulatory mechanisms; and any other natural or manmade factors 
affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and the U.S. 
Fish and Wildlife Service (50 CFR 424.14(b)) define ``substantial 
information'' in the context of reviewing a petition to list, delist, 
or reclassify a species as the amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted. When evaluating whether substantial information is 
contained in a petition, we must consider whether the petition: (1) 
Clearly indicates the administrative measure recommended and gives the 
scientific and any common name of the species involved; (2) contains 
detailed narrative justification for the recommended measure, 
describing, based on available information, past and present numbers 
and distribution of the species involved and any threats faced by the 
species; (3) provides information regarding the status of the species 
over all or a significant portion of its range; and (4) is accompanied 
by the appropriate supporting documentation in the form of 
bibliographic references, reprints of pertinent publications, copies of 
reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).

[[Page 9882]]

    At the 90-day stage, we evaluate the petitioner's request based 
upon the information in the petition, including references provided, 
and the information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioner's sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files which 
indicates that the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude that it supports the petitioner's assertions. 
Conclusive information indicating that the species may meet the ESA's 
requirements for listing is not required to make a positive 90-day 
finding. We will not conclude that a lack of specific information alone 
negates a positive 90-day finding, if a reasonable person would 
conclude that the unknown information itself suggests an extinction 
risk of concern for the species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating that the subject species may be 
either threatened or endangered, as defined by the ESA. First, we 
evaluate whether the information presented in the petition, along with 
the information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species at issue faces extinction risk that is cause for concern; this 
may be indicated in information expressly discussing the species' 
status and trends, or in information describing impacts and threats to 
the species. We evaluate any information on specific demographic 
factors pertinent to evaluating extinction risk for the species at 
issue (e.g., population abundance and trends, productivity, spatial 
structure, age structure, sex ratio, diversity, current and historical 
range, habitat integrity or fragmentation), and the potential 
contribution of identified demographic risks to extinction risk for the 
species. We then evaluate the potential links between these demographic 
risks and the causative impacts and threats identified in section 
4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union for 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but such classification alone may 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (https://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source of information that the 
classification is based upon in light of the standards of the ESA and 
our policies as described above.
    With respect to the two species and three subpopulations of marine 
mammals discussed in this finding, the petitioner relies almost 
exclusively on the risk classifications of the IUCN as the source of 
information on the status of each petitioned species. All of the 
petitioned marine mammals are listed as ``endangered'' or ``critically 
endangered'' on the IUCN Red List and the petitioner notes this as an 
explicit consideration in offering petitions on these species. Species 
classifications under the IUCN and the ESA are not equivalent, and the 
data standards, evaluation criteria, and treatment of uncertainty are 
also not necessarily the same.

DPS Policy

    A joint NOAA-U.S. Fish and Wildlife Service (USFWS) policy 
clarifies the agencies' interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying a species under the ESA (``DPS Policy''; 61 FR 4722; 
February 7, 1996). The joint DPS Policy (61 FR 4722; February 7, 1996) 
identifies two criteria for making DPS determinations: (1) The 
population must be discrete in relation to the remainder of the taxon 
(species or subspecies) to which it belongs; and (2) the population 
must be significant to the remainder of the taxon to which it belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) 
``It is markedly separated from other populations of the same taxon as 
a consequence of physical, physiological, ecological, or behavioral 
factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation''; or (2) ``it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D)'' of the ESA (61 FR 4722; 
February 7, 1996).
    If a population segment is found to be discrete under one or both 
of the above conditions, then its biological and ecological 
significance to the taxon to which it belongs is evaluated. This 
consideration may include, but is not limited to: (1) ``Persistence of 
the discrete population segment in an ecological setting unusual or 
unique for the taxon; (2) evidence that the loss of the discrete 
population segment would result in a significant gap in the range of a 
taxon; (3) evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; and 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics'' (61 
FR 4722; February 7, 1996).

Species Descriptions

    The marine mammals addressed by the petition include three dolphins 
(Cephalorhynchus hectori, Sousa chinensis, Tursiops truncatus), a 
porpoise (Phocoena phocoena), and a seal (Arctocephalus galapagoensis).

[[Page 9883]]

    The Gal[aacute]pagos fur seal, Arctocephalus galapagoensis, is 
found on most islands of the Gal[aacute]pagos Archipelago, Ecuador in 
the southeast Pacific Ocean. This species is the smallest and least 
sexually dimorphic member of the ``eared seal'' family, Otariidae. The 
few adult males that have been weighed have ranged from 60-68 kg; adult 
females are smaller and weigh an average of 27.3 kg (Aurioles and 
Trillmich, 2013). Gal[aacute]pagos fur seals may mature at about 5-6 
years of age, and lactation lasts for 2-3 years (Bonner, 1984). The 
seals form colonies close to foraging areas and feed primarily at night 
on squids and fishes. Their preferred haul-out areas are rocky, rugged 
coasts with large boulders that provide shade.
    Hector's dolphin (Cephalorhynchus hectori) is a coastal species 
endemic to New Zealand, and as a result of its very nearshore 
distribution, it is one of the best-studied dolphins in the world. They 
are the smallest members of the family Delphinidae. Adults reach 
lengths of 1.5 m and weights up to 57 kg (Jefferson et al., 1993). 
Hector's dolphins live in groups of 2-8 individuals but larger 
aggregations (~50 animals) can also be seen at times (Jefferson et al., 
1993). Females bear their first calf at around 7-9 years of age and may 
bear calves every 2-3 years (Dawson, 1991). Their diet consists of 
small fishes and squids. Relatively recently, based on genetic and 
morphological data, the population of Hector's dolphins occurring on 
the coast of New Zealand's North Island were formally recognized as a 
new subspecies, C. hectori maui or Maui's dolphin (Baker et al., 2002). 
The dolphins of the South Island can be referred to as the nominate 
subspecies, C. hectori hectori.
    The harbor porpoise, Phocoena phocoena, is a widely distributed 
cetacean found in northern temperate and subarctic coastal and offshore 
waters. They are commonly found in bays, estuaries, harbors, and fiords 
in waters less than 200 m deep. They are medium to dark gray with a 
white belly and throat and have a small, stocky body (~45-70 kg; 2.0 m 
maximum length); a short, blunt beak; and a medium-sized triangular 
dorsal fin. Sexual maturity is generally reached at about 3-4 years. 
They feed on demersal and benthic species, mainly schooling fish and 
cephalopods. They are non-social and are usually seen in groups of 2-5 
animals. The petition requests listing of the Baltic Sea subpopulation 
of harbor porpoise.
    The Indo-Pacific humpback dolphin, Sousa chinensis, is found from 
northern Australia and southern China, through Indonesia and westward 
along the coastal rim of the Indian Ocean and down along the east coast 
of Africa (Jefferson et al., 1993). This species primarily occurs in 
nearshore habitats, and is often associated with estuaries, river 
mouths and mangroves. Although still formally recognized as a single 
species, some biologists consider there to be two species: S. plumbea, 
found from South Africa to the east coast of India, and S. chinensis, 
found from the east coast of India to China and Australia (Reeves et 
al., 2008a). Evidence seems to be growing in support of the existences 
of two or even more species (Reeves et al., 2008a). Color and color 
patterns are variable among the populations; and, in some populations 
the dorsal fin sits on a hump on the back, while in other populations 
this hump is absent (Jefferson et al., 1993). All Indo-Pacific humpback 
dolphins have a distinctively long, well defined beak. Maximum sizes 
recorded for males 3.2 m long and 2.5 m long for females. They form 
social groups of about 10 animals, but groups of up to 30 animals have 
been documented (Jefferson et al., 1993). Reproductive parameters are 
not well known. Based on limited information, age at sexual maturity is 
thought to be around 9-12 years, and gestation length may be about 10-
12 months (Jefferson, 2004). Diet consists of mainly nearshore and 
estuarine fishes. The petition requests listing of the eastern Taiwan 
Strait subpopulation of the Indo-Pacific humpback dolphin.
    The bottlenose dolphin, Tursiops truncatus, is one of the most 
well-known species of marine mammals. They have a robust body and a 
short, thick beak. Their coloration ranges from light gray to black 
with lighter coloration on the belly. Inshore and offshore individuals 
vary in color and size. Inshore animals are smaller and lighter in 
color, while offshore animals are larger, darker in coloration, and 
have smaller flippers. Bottlenose dolphins range in length from 1.8 to 
3.8 m, with males slightly larger than females. Lifespan is 40-45 years 
for males and more than 50 years for females. Sexual maturity varies by 
population and ranges from 5-13 years for females and 9-14 years for 
males. Calves are born after a 12 month gestation period and are weaned 
at 18 to 20 months. On average, calving occurs every 3 to 6 years. 
Females as old as 45 years have given birth. Bottlenose dolphins are 
commonly found in groups of 2 to 15 individuals, but offshore herds can 
sometimes have several hundred individuals. They feed on a variety of 
prey items, including invertebrates and fishes, and may forage 
individually and cooperatively. The petition requests listing of the 
Fiordland subpopulation of bottlenose dolphins.

Analysis of the Petition

    The petition indicates the recommended administrative measure and 
gives the scientific and common names of the species involved. The 
petition is not clear, however, regarding which population or 
populations of Hector's dolphin are petitioned for listing; we discuss 
this further below in the section addressing this particular species. 
The petition contains a narrative justification for the recommended 
measures and provides information on the species' geographic 
distributions, habitats, and threats. Information is provided regarding 
the species' past or present numbers, or population status and trends 
for all or a significant portion of the species' ranges. Supporting 
documentation is provided, mainly in the form of IUCN species 
assessments.
    Based on the information presented in the petition, along with the 
information readily available in our files, we find that the 
Gal[aacute]pagos fur seal (Arctocephalus galapagoensis) and Hector's 
dolphin (Cephalorhynchus hectori) constitute valid ``species'' eligible 
for listing under the ESA as each is considered a valid taxonomic 
species. In evaluating the request to list certain DPSs, we must first 
consider whether the petition provides substantial information 
indicating that the petitioned subpopulations may qualify as DPSs and 
thus constitute valid ``species'' eligible for listing. Our analyses 
and conclusions regarding the possible qualification of the petitioned 
subpopulations as DPSs are provided below within the relevant species 
section.
    The petition includes a general introductory section discussing 
threats to all 81 species addressed in the petition, a section on the 
threats to the marine mammals petitioned for listing, and species-
specific sections with information on each individual marine mammal 
species. We have reviewed and considered the information in each 
section of the petition, and a synopsis of our analysis of the 
information provided in the petition and readily available in our files 
is provided below for each of the petitioned marine mammal species and 
subpopulations.

Gal[aacute]pagos Fur Seal

    This species (Arctocephalus galapagoensis) is currently listed as 
``endangered'' on the IUCN Red List and

[[Page 9884]]

is listed on CITES Appendix II. The petition asserts that this species 
is being threatened with extinction by all five of the ESA section 
4(a)(1) factors--habitat destruction or modification, overutilization, 
disease and predation, inadequacy of regulatory mechanisms, and other 
natural factors.
    The petition states that Gal[aacute]pagos fur seals, and in fact 
all of the marine mammals addressed in the petition, are threatened by 
habitat destruction and modification as a result of various factors, 
including human population growth and associated consequences such as 
pollution, dead zones (i.e., areas of very low dissolved oxygen), 
development, tourism, and ocean acidification. The petition highlights 
the threat of ocean acidification in particular, and discusses how the 
acidity of sea water alters the absorption of low and mid-frequency 
sound. The petition argues that while communication over long distances 
for some marine mammals may be improved, the increasing ocean acidity 
also means a ``noisier'' environment and potential loss of suitable 
habitat. The information in the petition regarding these various 
habitat threats, however, is general in nature and is not clearly 
linked to the petitioned species' range or habitats. For example, no 
information is provided or available to us to indicate what, if any, 
effect dead zones, pollution, or ocean acidification may be having, or 
may have in the future, on Gal[aacute]pagos fur seal habitat. 
Furthermore, the Gal[aacute]pagos fur seals' range lies within the 
boundaries of the Gal[aacute]pagos National Park, where tourism is 
closely regulated (Aurioles and Trillmich, 2008) and where, presumably, 
their habitat receives some measure of protection from development and 
pollution.
    During the 19th century, Gal[aacute]pagos fur seals were heavily 
exploited by sealers and whalers. By the early 20th century, the 
species was near extinction but ``has since recovered'' (Aurioles and 
Trillmich, 2008). Although the seals are now protected, the petition 
asserts that the seals continue to be threatened indirectly by fishing 
as evidenced by reports of the seals becoming entangled in fishing 
nets. According to the most recent IUCN assessment, entanglement of 
seals is ``thought to be increasing'' (Aurioles and Trillmich, 2008). 
References or data to support this statement are not provided, and 
there is no indication of why the entanglements are thought to be 
increasing (e.g., increased fishing activity). The waters around the 
islands are also protected by a 40 nautical mile no fishing zone 
(Aurioles and Trillmich, 2008). No additional information is provided 
or available in our files regarding fishing activity, the frequency of 
seal entanglements, or the outcome of seal entanglements (e.g., 
mortality, injury). Therefore, it is unclear whether and to what extent 
entanglement is affecting the extinction risk of the species.
    The petition states that Gal[aacute]pagos fur seals are threatened 
by both disease and predation. The petition presents information about 
feral dogs on Isabela Island and how the dogs decimated colonies of 
seals on the southwestern end of the island (Aurioles and Trillmich, 
2008). The petition also states that transmission of diseases from dogs 
to the fur seals is the ``most serious threat to the species at this 
time.'' The feral dogs have since been exterminated from this island 
(Aurioles and Trillmich, 2008), but because the potential exists for 
feral dogs to return the island, the petition asserts that predation by 
dogs and disease transmission from dogs to seals represent ``ongoing'' 
threats to the species' existence. No information is provided or is 
available in our files to indicate the likelihood of feral dogs 
returning, and no information is available in the petition or our files 
to indicate whether or how these threats are currently being managed 
within the Gal[aacute]pagos National Park. We also lack information 
about how specific impacts occurring on Isabela Island would impact the 
fur seals elsewhere in the archipelago and at the species level. As a 
result, we cannot conclude that disease and predation by dogs on 
Isabela Island represent ongoing threats to the species existence.
    The petition states that current protections for the 
Gal[aacute]pagos fur seals are inadequate to protect them against the 
most serious threats to their existence. Specifically, the petition 
asserts that although the seals are listed on CITES Appendix II and are 
protected under Ecuadorian law and by management of the 
Gal[aacute]pagos National Park, these protections are not adequate to 
address the threats of bycatch, disease, predation, tourism, El 
Ni[ntilde]o and anthropogenic climate change. The petition does not 
discuss the existing regulatory context further or indicate what 
additional regulations might be necessary to adequately protect the fur 
seals from these threats. Also, as discussed above, we do not have 
sufficient information to indicate whether bycatch, disease, predation 
and tourism are posing an extinction risk for the species. Therefore, 
it is unclear whether existing regulatory mechanisms and protections 
are inadequate to address these threats. With respect to climate change 
and El Ni[ntilde]o, we agree with statements in the petition that 
localized protections may not be adequate to protect a species from 
global events. However, the petition does not present information 
regarding existing regulatory mechanisms or what protections are needed 
to address these particular threats as they relate specifically to 
Gal[aacute]pagos fur seals. For example, the petition does not relate 
current levels of greenhouse gas emissions to the status of the 
species, or indicate what reductions would adequately safeguard the 
seals from anthropogenic climate change given an existing context of 
the various emission reduction targets and pledges that have been made 
by a number of countries. Such specific information is also not 
provided regarding regulatory mechanisms to mitigate the effects of El 
Ni[ntilde]o, a natural feature of our climate system and the seals' 
habitat. Thus, it is unclear the level and extent to which existing 
regulatory mechanisms are inadequate to protect Gal[aacute]pagos fur 
seals from potential consequences of anthropogenic climate change and 
El Ni[ntilde]o.
    The petition states that Gal[aacute]pagos fur seals are threatened 
by El Ni[ntilde]o events, which result in declines in primary 
productivity and reduced food availability for higher trophic levels. 
The effects of El Ni[ntilde]o on Gal[aacute]pagos fur seals and other 
pinnipeds in the eastern tropical and temperate Pacific Ocean are well 
documented (Limberger, 1990; Aurioles-Gamboa et al., 2004). The 1982/83 
El Ni[ntilde]o was an extreme event that had widespread oceanographic 
effects and resulted in very high mortality rates for Gal[aacute]pagos 
fur seals and other species (Aurioles and Trillmich, 2008). El 
Ni[ntilde]o events occur irregularly about every 3-6 years, and strong 
events, as measured by the degree of warming, occur at 8 to 15 year 
intervals. El Ni[ntilde]o events of the magnitude similar to the 1982/
83 event, however, only occur one or a few times per century (see 
www.elnino.noaa.gov). Presumably, the seals are somewhat resilient to 
this periodic disturbance, which forms a part of the evolutionary 
framework that shaped the species (Limberger, 1990), but the degree of 
recovery of Gal[aacute]pagos fur seals since the 1982/83 event is not 
known (Aurioles and Trillmich, 2008). Whether or not El Ni[ntilde]o 
constitutes an extinction risk for the species depends on the rate of 
recovery of the seals and the frequency of intense El Ni[ntilde]o 
events. Sufficient information to evaluate this is not available in the 
petition or in in our files. Thus, it is not clear that such events 
represent an extinction risk to

[[Page 9885]]

the species such that listing under the ESA may be warranted.
    The petition presents the additional argument that El Ni[ntilde]o 
events ``appear to be increasing in frequency and duration'' and 
therefore this threat ``will only continue to grow.'' Whether the 
frequency and intensity of El Ni[ntilde]os are increasing or are being 
influenced by anthropogenic climate change are unanswered questions and 
currently the subject of much research. Furthermore, there is no 
information provided to indicate that such environmental changes are 
occurring at a certain rate that is expected out-pace the species' 
ability to adapt. Sightings of Gal[aacute]pagos fur seals and other 
pinnipeds outside their geographic ranges have been documented along 
the Central and South American coast, and several authors have 
hypothesized these extra-range sightings are caused in part by El 
Ni[ntilde]o events (Felix et al., 2001; Capella, 2002; Aurioles-Gamboa 
et al, 2004). While much research is still needed to conclusively link 
El Ni[ntilde]o events to these extra-range sightings, such dispersal 
may play an important role in the long-term persistence of populations 
as the carrying capacity of their preferred habitats changes in 
response to climatic events (Capella et al., 2002).
    The petition includes brief mention of several other threats to 
Gal[aacute]pagos fur seals, including small population size, oil 
spills, a small range, and a declining population trend. We considered 
each of these factors and concluded that statements about them and 
their effect on the species are very general in nature or not 
substantiated by any data or information. For example, the petition 
states that, although there is limited large vessel traffic in the 
Gal[aacute]pagos, smaller vessels ``could release moderate quantities'' 
of oil ``if involved in a marine accident.'' No information regarding 
frequency or potential for such oil spills is presented or available in 
our files. Furthermore, according to the last IUCN assessment, the 
current abundance of Gal[aacute]pagos fur seals is roughly estimated to 
be about 15,000 to 20,000 animals (Aurioles and Trillmich, 2008), which 
is not necessarily considered ``small.'' Given the limited information 
provided, we do not consider the ``other natural factors'' discussed in 
the petition to constitute substantial information that listing 
Gal[aacute]pagos fur seals under the ESA may be warranted.
    Overall, while the information in the petition suggests that the 
Gal[aacute]pagos fur seal should continue to be protected, much of the 
information about threats is overly general or speculative in nature. 
Insufficient information is provided to demonstrate that ocean 
acidification, pollution, entanglement, disease, predation and climate 
change are operative threats that are acting or will act on the species 
such that it may warrant protection under the ESA. Many of the major 
threats presented in the petition also appear to have been eliminated 
(e.g., direct harvest, feral dogs) or addressed through current 
management action (e.g., no fishing zone, regulation of tourism). 
Information regarding specific effects of climate change on the seals 
and the seals response to this threat is lacking, and the argument that 
Gal[aacute]pagos fur seals will not be able to recover from temporary 
impacts of El Ni[ntilde]o events is not well supported. In conclusion, 
we do not find that the petition presents substantial information that 
listing under the ESA may be warranted for the Gal[aacute]pagos fur 
seals.

Hector's Dolphin

    Hector's dolphin (Cephalorhynchus hectori) has a discontinuous 
distribution along the coasts of both the North and South Islands of 
New Zealand and is comprised of multiple, genetically distinct 
populations (Reeves et al., 2013a). A separate IUCN assessment has been 
completed for the subspecies C. hectori maui or Maui's dolphin, which 
occurs off the North Island. The petition states that, because Maui's 
dolphin has been recognized and assessed separately, ``. . . this 
Petition is focused on the South Island subspecies and petitions for 
listing as an endangered or threatened species and not as a DPS.'' 
Despite this stated focus on the ``South Island subspecies,'' the 
petition provides status information for both subspecies and relies on 
the species-level IUCN assessment for C. hectori. The Latin name for 
the South Island subspecies, C. hectori hectori, is not mentioned in 
the petition. Thus, it is not clear which entity the petition is 
requesting be considered for listing under the ESA. We elected to 
address the species, C. hectori, in our review, because the petition 
consistently refers to C. hectori throughout its discussions and 
presents status and threats information for the dolphins range-wide.
    Hector's dolphin is currently classified as ``endangered'' on the 
IUCN Red List and is listed on Appendix II of CITES. Maui's dolphin is 
listed separately as ``critically endangered'' on the Red List. Under 
the New Zealand Threat Classification System, the South Island 
subspecies is currently categorized as ``endangered'' (Baker et al., 
2010), and Maui's dolphin is categorized as the more serious, 
``nationally critical.''
    Aside from the vaquita (Phocoena sinus), Hector's dolphin is 
considered to have the most limited range of any marine cetacean 
(Reeves et al., 2013a). Alongshore ranges of individual dolphins may 
typically be less than 60 km (Brager et al, 2002). The petition states 
that, due to this limited coastal distribution, Hector's dolphins are 
threatened by human activities such as ``pollution, vessel traffic and 
habitat modification.'' The petition refers to a single sentence in the 
IUCN assessment of C. hectori to support of these assertions (Reeves et 
al., 2013a). No further discussion or information is provided in the 
petition to clarify these statements or indicate how these factors are 
threatening the Hector's dolphins of either island. One study in our 
files, however, suggests that boat strikes are posing more of a threat 
to this species than previously thought (Stone and Yoshinaga 2000), but 
the available data are too limited to make conclusive statements 
regarding the severity or extent of this particular threat.
    The petition asserts that that the main threat to Hector's dolphins 
is incidental entanglement in fishing nets and gear. Multiple, 
independent modeling efforts have indicated that bycatch is 
contributing to the decline of Hector's dolphin populations (Martien et 
al., 1999; Burkhart and Slooten, 2003), and populations are predicted 
to continue declining throughout New Zealand under the current 
management scenarios (Slooten, 2013). In a review of such modelling 
efforts, Slooten and Davies (2012) showed that all analyses are 
remarkably consistent in indicating that (1) dolphin populations have 
declined substantially due to fisheries mortality, and (2) recovery is 
unlikely under recent management efforts. Research has also 
demonstrated a significant conservation benefit of the Banks Peninsula 
Marine Mammal Sanctuary (Slooten, 2013), which was enacted in 1988 to 
protect the dolphins from commercial gillnetting. Despite this 
sanctuary, additional protected areas, and a slow but steady escalation 
of protections since 1988, Slooten (2013) reports that population 
decline is still occurring nationwide. An expert panel, convened in 
2012 by the New Zealand Department of Conservation and Ministry for 
Primary Industries and consisting of scientists from New Zealand and 
the United States, estimated that fisheries bycatch accounted for 95.5% 
of all human-caused mortality; pollution, mining, and tidal energy 
generation were among the threats comprising the remaining 4.5%

[[Page 9886]]

of human-caused mortality (Slooten, 2013). Overall, the available 
information suggests that bycatch is posing an extinction risk for the 
species.
    The petition states that Hectors' dolphins are also threatened with 
extinction from disease. However, no other information, discussion or 
references are provided in the petition to indicate what diseases are 
affecting the dolphins and how these diseases are affecting 
survivorship or health of the dolphins. While it is possible the 
species is threatened by some disease or diseases, the available 
information is insufficient to indicate that it is an operative threat 
that is posing a potential extinction risk for the species. For 
example, Duignan et al. (2005) confirmed the presence of Brucella in a 
female dolphin, but the prevalence of this potentially significant 
dolphin pathogen or its impacts on Hector's dolphin is not known.
    The petition asserts that Hector's dolphin is threatened by the 
inadequacy of existing regulatory mechanisms. The petition focuses 
specifically on CITES and the efforts of the New Zealand government. No 
information or discussion of international trade is provided, and thus 
it is not clear whether CITES protections are actually inadequate to 
address this particular threat. For reasons discussed above, we agree 
that recent protections extended to Hector's dolphins within New 
Zealand do not appear to be sufficient to address the threat of 
bycatch, which is estimated to be occurring at an unsustainable rate 
(Slooten, 2007).
    Although figures vary among studies, Hector's dolphins have been 
estimated to number 7,270 animals off the South Island (Slooten et al., 
2004) and 111 animals off the North Island (Slooten et al., 2006). 
Dolphin densities have declined since the 1970s and the populations 
have become increasingly fragmented (Slooten, 2013). In a population 
viability analysis for the period 1970-2009, Slooten (2007) estimated a 
rate of decline of 74% over 3 generations for the species as a whole. 
Given low the abundances and population fragmentation, the ongoing 
threat of bycatch, and the predicted continued decline in abundance, we 
find that Hector's dolphin may warrant listing under the ESA.

Baltic Sea Subpopulation of Harbor Porpoise

    The petition requests listing of the Baltic Sea subpopulation of 
harbor porpoise (Phocoena phocoena) as a DPS. To meet the definition of 
a DPS, a population must be both discrete from other populations of the 
species and significant to the species as a whole (61 FR 4722; February 
7, 1996). Several morphological and genetic studies referenced in the 
petition provide some evidence that the harbor porpoises in the Baltic 
Sea are distinct from the harbor porpoises living in the Kattegat, 
Skagerrak and North Seas (Tiedemann et al., 1997; Huggenberger et al., 
2002). On the basis of these studies, the petition argues that the 
Baltic Sea porpoises are markedly separated from other subpopulations 
and thus meet the ``discreteness'' criterion of the DPS Policy. A more 
recent paper in our files provides some additional support for this 
assertion: Wiemann et al. (2010) analyzed microsatellite and 
mitochondrial DNA for over 300 porpoise samples from the Baltic and 
surrounding seas and found a small but significant amount of genetic 
separation of the Baltic Sea porpoises from those in the adjacent Belt 
Sea. The data also suggest some level of gene flow among 
subpopulations, and the issues of how and where to divide 
subpopulations into meaningful management units has been a matter of 
some debate (Palme et al., 2008; Wiemann et al., 2010). In a review 
article on harbor porpoises in the Baltic Sea, Kochinski (2002) 
concludes that, although some studies are inconsistent in their 
findings, the existence of a Baltic Sea subpopulation does seem likely. 
Thus, we consider the available information sufficient to indicate that 
there may be a discrete Baltic Sea subpopulation of P. phocoena. For 
ease of discussion, we refer to these harbor porpoises as the Baltic 
Sea subpopulation (BSS) throughout the remainder of this document.
    The petition asserts that the BSS differs from other subpopulations 
in its genetic characteristics and that loss of the BSS of harbor 
porpoise would result in a significant gap in the range of the 
taxonomic species. Based on these two lines of reasoning, the petition 
argues that the BSS meets the ``significance'' criterion of the DPS 
Policy. We find limited support for the assertion that loss of this 
subpopulation from the Baltic Sea would result in a signifigant gap in 
the range of this very wide-ranging and mobile species. Given the 
evidence of some degree of migration among the subpopulations (Wiemann, 
2010), we cannot concur with the statement in the petition that it is 
``highly unlikely'' for harbor porpoises from other subpopulations to 
fill the gap that would be left by an extirpated BSS. However, we do 
agree, that on the basis of morphological differences among 
subpopulations, the BSS may differ markedly in its genetic 
characteristics. For example, Huggenberger et al. (2002) found 
significant differences in skull morphology among subpopuations of the 
North and Baltic Sea regions that may stem from differences in prey 
species among areas. Differences in tooth ultrastructure, which may be 
genetically or environmentally controlled, have also been found among 
harbor porpoises from the Baltic, North and Skagerrat Seas (Lockyer, 
1999). In conclusion, we find sufficient indication that the BSS may 
meet the ``significance'' criterion of the DPS Policy.
    The weight of the available evidence suggests that the BSS may meet 
the ``discreteness'' and the ``significance'' criteria of the DPS 
Policy (61 FR 4722; February 7, 1996) and thus may qualify as a DPS. 
Therefore, we proceeded to review the petition and information readily 
available in our files to evaluate whether this presumed DPS may 
warrant listing under the ESA. We note, however, that precise 
boundaries for this potential DPS are not known or determined at this 
stage.
    The petition highlights pollution, and specifically polychlorinated 
biphenyls (PCBs), as a cause of habitat modification, disease and 
parasitism that is threatening the BSS of harbor porpoise. PCBs are 
toxic organic chemicals once widely used in many commercial and 
industrial products (e.g., paints, plastics, electrical equipment), and 
although used and manufactured to a much lesser extent today, they can 
still be released into the environment where they persist for long 
periods of time. PCBs can enter the food chain through direct contact, 
inhalation or ingestion, and can accumulate in the tissues of animals, 
especially those of higher trophic levels. An analysis of organic 
contaminants in harbor porpoises showed that animals in the Baltic Sea 
have 41 to 245% higher mean levels of PCBs and other organochlorines in 
their tissues when compared to animals from the Kattegat and Skagerrak 
Seas (Berggrena et al., 1999). The total mean concentration of PCBs 
measured in mature harbor porpoises from the Baltic Sea (46  26 [mu]g/g) also exceeds the estimated threshold level for 
subtle, adverse neurobehavioral effects in harbor porpoises (i.e., ~3 
[mu]g/g; (Berggrena et al, 1999). Beineke et al. (2005) completed 
detailed pathological examinations on 61 stranded or by-caught harbor 
porpoises and found that harbor porpoises from the German North and 
Baltic Seas exhibited a higher incidence of bacterial infection when 
compared to harbor porpoises from less polluted

[[Page 9887]]

Icelandic and Norwegian waters. These authors concluded their findings 
support the hypothesis of contaminant-induced immunosuppression in 
harbor porpoise, which may possibly contribute to disease 
susceptibility (Beineke et al, 2005). In a review article, Koschinski 
(2002) reports that environmental contaminants most likely do affect 
the long-term viability of the BSS porpoises and may in fact have 
played a large role in their decline from the 1940s to the 1970s, after 
which time the concentration of PCBs and other organochlorine 
contaminants began to decline. The IUCN assessment for the BSS also 
references multiple studies that report various pathologies in Baltic 
harbor porpoises, including pneumonia, skin lesions, and heavy parasite 
loads (see Hammond et al., 2008b). Thus, while it is unclear the level 
and extent to which pollution is currently affecting the BSS, the 
available information indicates the BSS is exposed to a relatively high 
level of pollution, and it suggests this exposure may be having 
negative health consequences for these animals.
    The petition and IUCN assessment for the BSS of harbor porpoise 
state that the most significant threat to this subpopulation today is 
bycatch in commercial fisheries (Hammond et al., 2008b). Bycatch of 
harbor porpoises has been documented to occur in multiple gear types, 
but the majority of the bycatch is attributed to bottom-set gillnets 
and driftnets (Koschinski, 2002). Entanglement in such nets typically 
results in mortality (Koschinski, 2002). Concern about incidental catch 
of small cetaceans led the European Union (EU) to adopt a regulation in 
2004 to help minimize bycatch in EU waters (Hammond et al., 2008b). 
Information or data to evaluate the effectiveness of this regulation in 
mitigating bycatch of harbor porpoises are not available to us. 
Apparently, a complete evaluation of the threat bycatch poses to the 
BSS is not yet possible due to uncertainty regarding the total amount 
of bycatch and uncertainty regarding harbor porpoise stock structure, 
abundance, and population growth rate (Berggren, 1994; Koschinski, 
2002). However, Berggren et al. (2002); as cited in (Carlstrom et al, 
2009) concluded that the levels of bycatch in the Skagerrak, Kattegat, 
and Baltic Sea are not sustainable. Overall, it appears that bycatch is 
widely accepted to be a serious threat to harbor porpoises in the 
Baltic Sea; however, sufficient data and information to thoroughly 
evaluate the extent and severity of this threat appear to be lacking, 
especially given the context of ongoing conservation action.
    The petition argues that existing regulatory measures are 
inadequate to protect the BSS of harbor porpoise and focuses the 
discussion on CITES and the 2004 EU fisheries regulation in particular. 
However, no information is presented on international trade of the BSS 
of harbor porpoise, and no information is presented to indicate that 
the current Appendix II listing of P. phocoena is not adequate to 
safeguard the BSS from effects of international trade. The petition 
argues that the EU's fisheries regulation is inadequate because this 
regulation does not address sources of bycatch from fisheries other 
than drift net fisheries (e.g., does not address trawls). The extent of 
take or mortality in other fisheries or gear types is not discussed 
further nor is such information available in our files; thus, it is not 
possible for us to evaluate the extent to which these other fisheries 
pose a threat to the BSS. Lastly, the petition argues that no 
regulations are adequately addressing the threat of pollution; but the 
regulatory context for addressing pollution and PCBs in this region is 
not discussed, making this assertion difficult to assess. Furthermore, 
while the petition refers to a report by ASCOBANS (``Agreement on the 
Conservation of Small Cetaceans of the Baltic and North Seas'') at one 
point, the petition provides no information on international 
conservation goals or actions being taken by this group. We have no 
additional information in our files regarding the management actions of 
this group or any other individual country. Thus, we do not find there 
is sufficient information to support the claim that existing measures 
are inadequate.
    The harbor porpoise, P. phocoena, is an abundant and widespread 
species with an estimated global abundance of about 700,000, (Hammond 
et al., 2008a). In contrast, the BSS is estimated to number fewer than 
250 mature animals (Hammond et al., 2008b). In his review of existing 
literature, Koschinski (2002) states that abundance of porpoises in the 
Baltic region declined during the second half of the 20th century and 
the range contracted considerably. Anecdotal data collected by Skora et 
al. (1988) suggest that in Polish waters, harbor porpoise abundance is 
very low as compared to the abundance in the early 20th century. Harbor 
porpoises are still fairly abundant in the Kattegat and Belt Seas 
(0.73-0.99 animals/sq km), especially relative to the Baltic proper 
where densities are less than 0.01 animals/sq km (Koschinski, 2002). 
Acoustic and visual surveys conducted in the Baltic Sea and surrounding 
waters during the summers of 2001 and 2002 have confirmed that the 
relative abudance and occurrence of harbor porpoises in the Baltic Sea 
are very low (Gillespie et al., 2005). An unpublished ASCOBANS report 
(1997; as cited in Koschinski, 2002) also states that harbor porpoises 
in the Baltic Sea ``appear to be in a serious long-term decline.''
    In conclusion, we find that harbor porpoises of the Baltic Sea may 
meet the ``discreteness'' and ``significance'' criteria of the DPS 
Policy (61 FR 4722; February 7, 1996) and thus may qualify as a DPS. We 
also find that, given the available information regarding low 
abundance, a declining population trend and potential threat of 
pollution, the BSS of harbor porpoise may warrant listing as threatened 
or endangered under the ESA.

Eastern Taiwan Strait Subpopulation of Indo-Pacific Humpback Dolphin

    The petition requests listing of the eastern Taiwan Strait 
subpopulation (ETS) of the Indo-Pacific humpback dolphin, Sousa 
chinensis, as a DPS. As discussed previously, a population must be both 
discrete from other populations of the species and significant to the 
species as a whole in order to meet the definition of a DPS (61 FR 
4722; February 7, 1996). The petition discusses how the ETS dolphins 
can be distinguished from Indo-Pacific dolphins off the coast of 
mainland China on the basis of pigmentation patterns. While a genetic 
basis for this color variation has not yet been established, the 
maintenance of these phenotypic differences may be indicative of 
reproductive isolation (Wang et al., 2008). As additional evidence of 
``marked separation'' of ETS dolphins, the petition discusses how the 
ETS dolphins are restricted to the western side of Taiwan, mainly in 
and around the two main estuaries. With few exceptions, all sightings 
of ETS dolphins have been reported from within 3 km of shore despite 
survey efforts beyond this point, and it has been suggested that the 
depth of the relatively narrow Taiwan Strait may function as a barrier 
for movement of ETS dolphins across to the coast of mainland China 
(Wang et al., 2008; Reeves et al., 2008b). An analysis of 450 
individually photo-identified dolphins also provided no evidence of 
movement or exchange of individuals among the ETS and two groups from 
mainland China (Wang et al., 2008). Overall, this information suggests 
this subpopulation may be ``discrete'' from other Indo-Pacific humpback 
dolphins.

[[Page 9888]]

    With respect to the ``significance'' criterion of the DPS Policy, 
the petition states that the ETS dolphins are significant to the 
taxonomic species as a whole, because loss of this particular 
subpopulation would result in a significant gap in the range of the 
species. While it may be unlikely that other Indo-Pacific humpback 
dolphins would move to occupy the available habitat should the ETS 
dolphins be extirpated (given potential bathymetric barriers), it is 
not clear that the loss of this small range would constitute a 
``significant gap'' given the extensive Indo-Pacific range of this 
species. The petition also argues that the subpopulation is significant 
to the species as a whole, because it differs markedly from other 
subpopulations in its genetic characteristics. While there are no 
genetic data provided in the petition or in our files to indicate the 
observed phenotypic differences are genetically controlled, a 
meaningful degree of genetic differentiation of the ETS dolphins is 
plausible given the potential year-round residency of the ETS dolphins 
and the evidence suggesting a lack of migration among regional groups 
(Wang et al., 2008; Wang and Yang, 2010). Thus, we find sufficient 
indication that the ETS dolphins may meet the ``significance'' 
criterion of the DPS Policy.
    We conclude that the Indo-Pacific humpback dolphins in the eastern 
Taiwan Strait may meet both the ``discreteness'' and the 
``significance'' criteria of the DPS Policy and thus may qualify as a 
DPS (61 FR 4722; February 7, 1996). Therefore, we proceeded to review 
the petition and information readily available in our files to evaluate 
whether this presumed DPS may warrant listing under the ESA. For ease 
of discussion, we refer to the ETS subpopulation of the Indo-Pacific 
humpback dolphin as a DPS throughout the remainder of this text.
    The petition states that the ETS DPS of S. chinensis is being 
threatened by habitat destruction and modification and lists multiple 
causes including reduction of freshwater flows, seabed reclamation, and 
pollution. The ETS DPS dolphins' exposure to land-based pollution and 
other threats is relatively high all along the central western coast of 
Taiwan, because these dolphins are thought to inhabit only a narrow 
strip of coastal habitat: They have not been observed in waters deeper 
than 25 m and are typically sighted in waters 15 m deep and within 3 km 
from shore (Reeves et al., 2008b). Information in our files indicates 
that much of the preferred habitat of the ETS DPS has been altered or 
may become altered, but we do not have sufficient information to 
evaluate what effects this and most of the activities discussed in the 
petition (e.g., reduced freshwater flows, seabed reclamation) are 
having on the dolphins' status. For example, while several of the 
rivers in western Taiwan have already been dammed or diverted for 
agricultural, municipal, or other purposes, there are no data or 
information in the petition or our files to indicate what the impact, 
if any, reduced water flows to the estuaries is having on the ETS DPS 
dolphins or their prey (Ross et al, 2010). However, we do have some 
information in our files indicating that these dolphins are exposed to 
toxic PCBs and are likely to be negatively affected through ingestion 
of contaminated prey. By measuring PCB concentrations of known prey 
species, Riehl et al. (2011) constructed a bioaccumulation model to 
assess the risk PCBs may be posing to the ETS dolphins. Their results 
indicated that the ETS dolphins are at risk of immunotoxic effects of 
PCBs over their lifetime (Riehl et al., 2011). In addition, surveys of 
97 ETS DPS dolphins conducted from 2006 to 2010 showed that 73% had at 
least one type of skin lesion and that 49% of the surveyed dolphins 
were diseased (Yang et al., 2011). These data suggest the dolphins may 
have weakened immune systems and are consequently more susceptible to 
disease. Overall, while we have insufficient information to evaluate 
several of the claims in the petition, we do have sufficient 
information to indicate that pollution is probably having a negative 
impact on the status of the ETS of Indo-Pacific humpback dolphins.
    The petition asserts that the greatest threat to this DPS is 
bycatch in commercial fisheries. Data or information to directly 
evaluate this assertion appears to be lacking, but some indirect data 
does suggest that fisheries are posing a threat to this DPS. For 
example, thousands of vessels deploying trammel or gillnets are known 
to operate within the range of this DPS, and one third of 32 photo-
identified dolphins of this DPS have scars thought to have been caused 
by either collisions with ships or interactions with fishing gear (Wang 
et al., 2004). There are also two unpublished reports of dead, stranded 
ETS dolphins suspected to have died as a result of a fisheries 
interaction (see Ross et al., 2010). Overall, however, the available 
information is insufficient to support conclusions regarding whether or 
to what extent bycatch is contributing to extinction risk for the ETS 
DPS.
    The petition asserts that existing regulatory mechanisms are 
inadequate to conserve this DPS. The petition specifically identifies 
the CITES Appendix I listing of Sousa spp. as one deficiency; however, 
no additional information or data are provided in the petition 
regarding international trade of ETS DPS dolphins. Thus, we cannot 
conclude that the Appendix I listing is inadequate to safeguard this 
DPS from the threat of international trade. The ETS DPS dolphins are 
currently protected under Taiwan's Wildlife Conservation Act, although 
it appears that no specific habitats or areas are currently being 
protected (Ross et al., 2010). The petition, the IUCN assessment, and 
other references in our files also discuss Taiwan's policy on 
environmental impact assessments and the failure of this process to 
adequately assess potential impacts of projects to the ETS DPS dolphins 
or result in meaningful protection for the dolphins (e.g., see Wang et 
al., 2007). The lack of habitat protections and a rigorous 
environmental review process is concerning given the large number of 
new industrial projects awaiting approval and an expectation of 
continued habitat alteration and degradation (Wang et al., 2007).
    The size of the ETS DPS has been estimated to total 99 animals, and 
additional mark-recapture data from 2007-2010 indicate that the total 
population size is probably less than 80 animals (Wang et al., 2012). 
Given the low estimated abundance and restricted range coupled with 
high exposure to environmental contaminants and potentially weak 
regulatory protections, we conclude that the ETS DPS of the Indo-
Pacific humpback dolphin may warrant listing under the ESA.

Fiordland Subpopulation of Bottlenose Dolphin

    The petition requests listing of the Fiordland subpopulation of 
bottlenose dolphins as a DPS and provides information on how this 
subpopulation meets both the ``discreteness'' and ``significance'' 
criteria of the DPS Policy (61 FR 4722; February 7, 1996). Bottlenose 
dolphins occupy three, discontinuous coastal regions around New 
Zealand: Northland, Marlborough Sounds and Fiordland. A comprehensive 
analysis of mitochondrial DNA indicates that there is a high degree of 
genetic isolation of the Fiordland, Northland and Marlborough Sounds 
subpopulations from each other (Tezanos-Pinto et al., 2008). Within 
Fiordland--the mountainous, rainforested region in the southwest 
portion of New Zealand's

[[Page 9889]]

South Island--the population is considered to be further subdivided 
into three units, which can be referred to as the Milford, Doubtful and 
Dusky Sounds units (Tezanos-Pinto et al., 2008). The three bottlenose 
dolphin communities within Fiordland appear to be relatively separate 
from each other; however, there are some records of exchange among 
these groups, suggesting that they are part of one metapopulation 
(Currey et al., 2011a; citing Lusseau et al. 2006). We find the 
available information sufficient to indicate that the Fiordland 
bottlenose dolphins may meet the ``discreteness'' criterion of the DPS 
Policy.
    The petition argues that the Fiordland bottlenose dolphins are 
significant to their taxon as a whole for multiple reasons. We agree 
with the assertion in the petition that the Fiordland bottlenose 
dolphins differ markedly from other populations in their genetic 
characteristics and thereby may meet the ``significance criterion'' of 
the DPS Policy. As noted above, analysis of mitochondrial DNA indicates 
that there is significant genetic differentiation of the Fiordland 
bottlenose dolphins (Tezanos-Pinto et al., 2008). The Fiordland 
dolphins also display multiple physical (e.g., larger, more rotund 
bodies; shorter fins, flukes and rostrum; Currey et al., 2011a; citing 
Schneider, 1999) and behavioral (e.g., shorter birthing season; Haase 
and Schneider, 2001) differences that possibly reflect adaptation to 
their colder water habitat, which lies at the extreme southern end of 
the species' range (Currey et al., 2011a). The coastal fiords and bays 
of Fiordland may also represent an ecological setting that is unusual 
for this species. We find this information sufficient to indicate that 
the Fiordland bottlenose dolphins may meet the ``significance'' 
criterion of the DPS Policy.
    We conclude, based on the readily available information in our 
files and the information presented in the petition, that the Fiordland 
bottlenose dolphins may meet both the ``discreteness'' and the 
``significance'' criteria of the DPS Policy and thus may qualify as a 
DPS (61 FR 4722; February 7, 1996). Therefore, we proceeded to review 
the petition and information readily available in our files to evaluate 
whether this potential DPS may warrant listing under the ESA.
    Citing the IUCN assessment, the petition states that the Fiordland 
bottlenose dolphins are exposed to three main threats: Disturbance and 
boat strikes associated with boat-based tourism, increased freshwater 
discharge from hydroelectric power generation, and reduced prey 
availability (Currey et al., 2011a). Other threats discussed in the 
petition (e.g., anthropogenic climate change, ocean acidification) are 
general in nature and not clearly or causally linked to the status or 
habitat of the Fiordland bottlenose dolphins. Thus, as summarized 
below, our review of the information regarding threats to this 
subpopulation focused on the three main threats identified in the IUCN 
assessment.
    Tour boats have been shown to affect several behaviors of 
bottlenose dolphins in Doubtful Sound, and dolphins with boat-strike 
scars have been observed in both Doubtful and Milford Sounds (Currey et 
al., 2011a; citing Lusseau et al., 2002; Lusseau, 2003; Boisseau, 
2003). In response to the documented impacts on the dolphins, a 
voluntary code of conduct was adopted in 2006 in Milford and Doubtful 
Sounds. Dolphin Protection Zones, in which boating activities are 
limited, were also created and extend 200m out from shore in regions of 
the fiord that include some of the most frequently used habitats 
(Currey et al., 2011a). This management effort remains voluntary, and 
its effectiveness is unknown (Currey et al., 2011a). Tourism in 
Fiordland is increasing, and thus the potential for impacts on 
bottlenose dolphins is expected to increase as well, even in the less 
accessible Dusky Sound (Currey et al., 2011a). Although boating clearly 
is and will likely continue to affect the Fiordland dolphins, it is not 
clear what population-level effect boating activity is having on the 
Fiordland bottlenose dolphins. Thus, based on the available 
information, it is unclear whether this threat is posing an extinction 
risk that is cause for concern.
    The Lake Manapouri hydroelectric power station tailrace discharges 
a large volume of freshwater into Deep Cove in Doubtful Sound and 
creates a distinct low-salinity water layer significantly deeper than 
that found in neighboring fiords (Currey et al., 2011a; citing Gibbs et 
al. 2000, Gibbs 2001). The bottlenose dolphins of Doubtful Sound 
exhibit a higher severity of skin lesions, have smaller calves and a 
more restricted calving season when compared to the bottlenose dolphins 
of the less-disturbed Dusky Sound (Rowe et al., 2010). This 
circumstantial evidence supports but does not confirm the hypothesis 
that the elevated freshwater input is having a negative impact on the 
bottlenose dolphins within this particular sound. Additional data are 
required to fully evaluate the extent to which freshwater input from 
this hydropower facility is contributing to extinction risk for the 
Fiordland subpopulation.
    Quoting from the IUCN assessment, the petition states that the 
Fiordland bottlenose dolphins are threatened by reduced prey 
availability as a result of environmental degradation and overfishing. 
Specific information or data to support this assertion are very 
limited. The IUCN assessment cites several studies that document an 
altered sub-tidal community structure and reduced the species' richness 
in response to the freshwater input in Doubtful Sound from the 
hydropower facility (Currey et al., 2011a; citing Boyle et al. 2001, 
Tallis et al. 2004, Rutger and Wing 2006). These ecological side-
effects may translate into reduced or altered prey availability for the 
dolphins. The IUCN assessment also states that historical fishing has 
resulted in significant declines in fish abundance throughout Fiordland 
(Currey et al., 2011a; citing Beentjes and Carbines 2005). Specific 
information regarding the dolphins' existing prey resources, however, 
is not presented or available in our files; thus, it is difficult to 
fully assess whether food limitation is posing a threat to the 
Fiordland bottlenose dolphins.
    While the common bottlenose dolphin, T. truncatus, is a 
cosmopolitan and relatively abundant species, the Fiordland 
subpopulation contains only about 205 animals (95% CI: 192-219; Currey 
et al., 2009). Results of population viability analyses by Currey et 
al. (2009) also show that the Fiordland subpopulation is highly likely 
to decline over periods of one, three and five generations. The average 
rate of decline for this subpopulation was estimated as 31.4% over one 
generation (21 years), and the average risk of extinction was 
calculated as 10.1% over five generations (100 years) (Currey et al., 
2009). Capture-recapture modeling of data from 1996-2008 for the 
bottlenose dolphins in Doubtful Sound indicate that this unit has been 
declining since 1995, and that the decline has been driven by reduced 
survivorship of calves (less than 1 year old) and juveniles (less than 
3 years old) (Currey et al., 2011b).
    In conclusion, while it is difficult to attribute the decline of 
the Fiordland bottlenose dolphins to a specific cause or causes, we 
find that low abundance coupled with past and projected decline of 
these dolphins constitutes substantial information that listing 
Fiordland bottlenose dolphins as threatened or endangered under the ESA 
may be warranted.

[[Page 9890]]

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude that the 
petition does not present substantial scientific or commercial 
information indicating the petitioned action may be warranted for the 
Gal[aacute]pagos fur seal, Arctocephalus galapagoensis. In contrast, as 
described above, we find that there is substantial scientific 
information indicating the petitioned action may be warranted for 
Hector's dolphin, Cephalorhynchus hectori; the BSS of the harbor 
porpoise, Phocoena phocoena; the ETS subpopulation of the Indo-Pacific 
humpback dolphin, Sousa chinensis; and the Fiordland subpopulation of 
the bottlenose dolphin, Tursiops truncatus. We hereby announce the 
initiation of status reviews for each of these four entities to 
determine whether the petition actions are warranted.

Information Solicited

    To ensure that the status reviews are based on the best available 
scientific and commercial data, we are soliciting information relevant 
to whether Hector's dolphin, the BSS of harbor porpoise, the ETS 
subpopulation of the Indo-Pacific humpback dolphin, and the Fiordland 
subpopulation of bottlenose dolphin may warrant listing as threatened 
or endangered under the ESA. Specifically, we are soliciting data and 
information, including unpublished data and information, in the 
following areas: (1) Historical and current distribution and abundance 
of Hector's dolphin and the petitioned subpopulations of harbor 
porpoise, Indo-Pacific humpbacked dolphin, and bottlenose dolphin 
throughout their range; (2) historical and current population trends; 
(3) life history and habitat requirements (4) genetic analyses of 
subpopulations, populations or subspecies; (5) past, current and future 
threats, including any current or planned activities that may adversely 
impact these marine mammals; (6) ongoing or planned efforts to protect 
and restore the marine mammals and their habitat; and (7) management, 
regulatory, and enforcement information. We request that all 
information be accompanied by: (1) Supporting documentation such as 
maps, bibliographic references, or reprints of pertinent publications; 
and (2) the submitter's name, address, and any association, 
institution, or business that the person represents.

References Cited

    A complete list of references is available upon request to the 
Office of Protected Resources (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 14, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-03735 Filed 2-20-14; 8:45 am]
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