Endangered and Threatened Wildlife and Plants: Final Rule To List the Taiwanese Humpback Dolphin as Endangered Under the Endangered Species Act, 21182-21187 [2018-09890]
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Federal Register / Vol. 83, No. 90 / Wednesday, May 9, 2018 / Rules and Regulations
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Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2018–09874 Filed 5–8–18; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 224
[Docket No. 160413329–8412–03]
RIN 0648–XE571
Endangered and Threatened Wildlife
and Plants: Final Rule To List the
Taiwanese Humpback Dolphin as
Endangered Under the Endangered
Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
In response to a petition by
Animal Welfare Institute, Center for
Biological Diversity, and WildEarth
Guardians, we, NMFS, are issuing a
final rule to list the Taiwanese
humpback dolphin (Sousa chinensis
taiwanensis) as endangered under the
Endangered Species Act (ESA). We have
reviewed the status of the Taiwanese
humpback dolphin, including efforts
being made to protect the subspecies,
and considered public comments
submitted on the proposed listing rule
as well as new information received
since publication of the proposed rule.
Based on all of this information, we
SUMMARY:
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have determined that the Taiwanese
humpback dolphin warrants listing as
an endangered subspecies. We will not
designate critical habitat for this
subspecies, because the geographical
areas occupied by these dolphins are
entirely outside U.S. jurisdiction, and
we have not identified any unoccupied
areas within U.S. jurisdiction that are
currently essential to the conservation
of the subspecies.
This final rule is effective June
8, 2018.
DATES:
Endangered Species
Conservation Division, NMFS Office of
Protected Resources (F/PR3), 1315 EastWest Highway, Silver Spring, MD
20910.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Chelsey Young, NMFS, Office of
Protected Resources, chelsey.young@
noaa.gov, (301) 427–8491.
SUPPLEMENTARY INFORMATION:
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Background
On March 9, 2016, we received a
petition from Animal Welfare Institute
(AWI), Center for Biological Diversity
(CBD), and WildEarth Guardians
(Guardians) to list the Taiwanese
humpback dolphin (S. chinensis
taiwanensis) as threatened or
endangered under the ESA throughout
its range. We found that the petitioned
action may be warranted for the species
and, on May 12, 2016, we published a
positive 90-day finding for the
Taiwanese humpback dolphin (81 FR
29515), announcing that the petition
presented substantial scientific or
commercial information indicating the
petitioned action may be warranted
range wide, and explaining the basis for
the finding. We also announced the
initiation of a status review of the
species, as required by section 4(b)(3)(a)
of the ESA, and requested information
to inform the agency’s decision on
whether the subspecies warranted
listing as endangered or threatened
under the ESA. On June 26, 2017, we
published a proposed rule to list the
Taiwanese humpback dolphin as
endangered (82 FR 28802). We
requested public comments on the
information in the proposed rule and
associated status review during a 60-day
public comment period, which closed
on August 25, 2017. This final rule
provides a discussion of the public
comments received in response to the
proposed rule and our final
determination on the petition to list the
Taiwanese humpback dolphin under the
ESA.
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Listing Determination Under the ESA
We are responsible for determining
whether species meet the definition of
threatened or endangered under the
ESA (16 U.S.C. 1531 et seq.). To make
this determination, we first consider
whether a group of organisms
constitutes a ‘‘species’’ under the ESA,
then whether the status of the species
qualifies it for listing as either
threatened or endangered. Section 3 of
the ESA defines a ‘‘species’’ to include
any subspecies of fish or wildlife or
plants, and any distinct population
segment of any species of vertebrate fish
or wildlife, which interbreeds when
mature. The Taiwanese humpback
dolphin, S. chinensis taiwanensis, is a
formally recognized subspecies (Wang
et al., 2015; Committee on Taxonomy,
2016) and thus meets the ESA definition
of a ‘‘species.’’
Section 3 of the ESA defines an
endangered species as any species
which is in danger of extinction
throughout all or a significant portion of
its range and a threatened species as one
which is likely to become an
endangered species within the
foreseeable future throughout all or a
significant portion of its range. We
interpret an ‘‘endangered species’’ to be
one that is presently in danger of
extinction. A ‘‘threatened species,’’ on
the other hand, is not presently in
danger of extinction, but is likely to
become so in the foreseeable future (that
is, at a later time). In other words, the
primary statutory difference between a
threatened species and endangered
species is the timing of when a species
may be in danger of extinction, either
presently (endangered) or in the
foreseeable future (threatened).
Section 4(a)(1) of the ESA requires us
to determine whether any species is
endangered or threatened due to any
one or a combination of the following
five threat factors: The present or
threatened destruction, modification, or
curtailment of its habitat or range;
overutilization for commercial,
recreational, scientific, or educational
purposes; disease or predation; the
inadequacy of existing regulatory
mechanisms; or other natural or
manmade factors affecting its continued
existence. We are also required to make
listing determinations based solely on
the best scientific and commercial data
available, after conducting a review of
the species’ status and after taking into
account efforts being made by any state
or foreign nation to protect the species.
In assessing the extinction risk of the
Taiwanese humpback dolphin, we
considered demographic risk factors,
such as those developed by McElhany et
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al. (2000), to organize and evaluate the
forms of risks. The approach of
considering demographic risk factors to
help frame the consideration of
extinction risk has been used in many
of our previous status reviews (see
https://www.nmfs.noaa.gov/pr/species
for links to these reviews). In this
approach, the collective condition of
individual populations is considered at
the species level according to four
demographic viability factors:
Abundance and trends, population
growth rate or productivity, spatial
structure and connectivity, and genetic
diversity. These viability factors reflect
concepts that are well-founded in
conservation biology and that
individually and collectively provide
strong indicators of extinction risk.
Scientific conclusions about the
overall risk of extinction faced by the
Taiwanese humpback dolphin under
present conditions and in the
foreseeable future are based on our
evaluation of the species’ demographic
risks and section 4(a)(1) threat factors.
Our assessment of overall extinction
risk considered the likelihood and
contribution of each particular factor,
synergies among contributing factors,
and the cumulative impact of all
demographic risks and threats on the
species.
Section 4(b)(1)(A) of the ESA requires
the Secretary, when making a listing
determination for a species, to take into
consideration those efforts, if any, being
made by any State or foreign nation, or
any political subdivision of a State or
foreign nation, to protect the species.
Therefore, prior to making a listing
determination, we also assess such
protective efforts to determine if they
are adequate to mitigate the existing
threats.
Summary of Comments
In response to our request for
comments on the proposed rule, we
received a total of eight public
comments from several nongovernmental organizations as well as
individual members of the public. All
comments were supportive of the
proposed listing of the Taiwanese
humpback dolphin as endangered and
the large majority provided no new or
substantive data or information relevant
to the listing of Taiwanese humpback
dolphin that was not already considered
in the status review report and proposed
rule. We have considered all public
comments, and we provide responses to
all relevant issues raised by comments
as summarized below.
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Comments on Proposed Listing
Determination
Comment 1: As mentioned
previously, all public comments
received were supportive of the
proposed listing determination for the
Taiwanese humpback dolphin as
endangered. One commenter
emphasized the detrimental ecosystem
impacts that can result from species
extinctions. The commenter also noted
the importance of the United States to
continue leading in the area of
environmental preservation and
expressed support for the proposed
listing.
Several commenters reiterated
information and many of the points
from the status review and proposed
rule for the Taiwanese humpback
dolphin, notably the subspecies’ small
and dwindling population, its restricted
range in the shallow waters of the
Taiwan Strait, the numerous
anthropogenic threats the subspecies
faces, and the need for more stringent
regulations to protect the dolphin. The
petitioners (AWI, CBD, and Guardians)
also submitted a comment letter in
support of our endangered listing
determination for the Taiwanese
humpback dolphin. The comment letter
largely reiterated information from the
status review and proposed rule and
emphasized the severity of fisheries
interactions, results of population
viability models showing population
declines, and the inadequacy of current
laws to protect the dolphin. They also
provided new scientific and commercial
information regarding the emerging
threat of acoustic disturbance to the
subspecies (discussed below in
Comment 2). The Marine Mammal
Commission also submitted a letter of
support regarding our determination
that the Taiwanese humpback dolphin
has a high risk of extinction throughout
its range and warrants listing as an
endangered subspecies.
Response: We acknowledge the
several public comments in support of
our listing determination and the public
interest in conserving the Taiwanese
humpback dolphin.
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Comments on Threats to the Taiwanese
Humpback Dolphin
Comment 2: We received a comment
letter from the petitioners (AWI, CBD,
and Guardians) that provided some new
scientific information related to the
threat of underwater noise and acoustic
disturbance to the Taiwanese humpback
dolphin. Specifically, the commenters
emphasized the emerging threat of piledriving activities associated with the
development and installation of offshore
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wind farms in close proximity to the
dolphin’s habitat. The commenters
provided recent studies that evaluated
the in-situ noise pressure levels from
these types of activities (Chen et al.,
2017a, 2017b) and referred to NMFS’s
technical guidance for assessing the
effects of anthropogenic sound on
marine mammal hearing to suggest that
the development of offshore wind farms
is a significant threat to the Taiwanese
humpback dolphin. We received a letter
from another group of commenters
expressing similar concerns regarding
the wind farm development on the
western coast of Taiwan. The
commenters stated that ‘‘offshore wind
farms and their construction will
exacerbate noise pollution that can be
traumatically harmful to the dolphins.’’
Response: We agree with commenters
that the development of offshore wind
farms on the western coast of Taiwan is
concerning for the Taiwanese humpback
dolphin, particularly given the limited
amount of suitable habitat available to
the subspecies. We incorporated this
new information into our status review
report, and we agree that this new
information further supports our
endangered listing determination for the
dolphin. As described in the status
review report and proposed rule,
acoustic disturbance is likely a threat
that compounds other threats to the
population by decreasing foraging
success, increasing stress, and
decreasing immune health. As such, we
ranked this threat as ‘‘moderate,’’
meaning that it is likely that this
particular threat contributes
significantly to the subspecies’ risk of
extinction. We maintain our conclusion
regarding this threat ranking for acoustic
disturbance to the Taiwanese humpback
dolphin. However, given the increasing
development activities related to the
installation of numerous wind turbines
slated to occur within the dolphin’s
habitat in the next several years, we
acknowledge that the threat of acoustic
disturbance to the Taiwanese humpback
dolphin population is likely to increase
in the future.
information regarding the threat of
acoustic disturbance to the Taiwanese
humpback dolphin, particularly as it
relates to the increase in underwater
noise that is likely to occur from the
construction of offshore wind farms
within the subspecies’ habitat.
Summary of Changes From the
Proposed Listing Rule
We did not receive, nor did we find,
data or references that presented
substantial new information to change
our proposed listing determination. We
did, however, make some revisions to
the status review report (Whittaker and
Young 2018) to incorporate, as
appropriate, relevant information that
we received in response to our request
for public comments or identified
ourselves. Specifically, we updated the
status review to include new
ESA Section 4(a)(1) Factors Affecting
the Taiwanese Humpback Dolphin
As stated previously and as discussed
in the proposed rule (82 FR 28802; June
26, 2017), we considered whether any
one or a combination of the five threat
factors specified in section 4(a)(1) of the
ESA is contributing to the extinction
risk of the Taiwanese humpback
dolphin. One commenter provided
additional information related to
threats, particularly underwater noise
from coastal and energy development.
The information provided was
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Status Review
The status review for the Taiwanese
humpback dolphin was completed by
NMFS staff from the Office of Protected
Resources. To complete the status
review, we compiled the best available
data and information on the subspecies’
biology, ecology, life history, threats,
and conservation status by examining
the petition and cited references, and by
conducting a comprehensive literature
search and review. We also considered
information submitted to us in response
to our petition finding. The draft status
review report was subjected to
independent peer review as required by
the Office of Management and Budget
Final Information Quality Bulletin for
Peer Review (M–05–03; December 16,
2004). The draft status review report
was peer reviewed by three independent
specialists selected from the academic
and scientific community, with
expertise in cetacean biology,
conservation and management, and
specific knowledge of the Taiwanese
humpback dolphin. The peer reviewers
were asked to evaluate the adequacy,
appropriateness, and application of data
used in the draft status review report as
well as the findings made in the
‘‘Assessment of Extinction Risk’’ section
of the report. All peer reviewer
comments were addressed prior to
finalizing the draft status review report.
We subsequently reviewed the status
review report, and its cited references,
and we find the status review report,
upon which the proposed and final
rules are based, provides the best
available scientific and commercial
information on the Taiwanese
humpback dolphin. The final status
review report (cited as Whittaker and
Young 2018) is available on our website
(see ADDRESSES section).
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consistent with or reinforced
information in the status review report
and proposed rule, and thus, did not
change our conclusions regarding any of
the section 4(a)(1) factors or their
interactions. Therefore, we incorporate
and affirm herein all information,
discussion, and conclusions regarding
the factors affecting the Taiwanese
humpback dolphin from the final status
review report (Whittaker and Young
2018) and the proposed rule (82 FR
28802; June 26, 2017).
Extinction Risk
As discussed previously, the status
review evaluated the demographic risks
to the Taiwanese humpback dolphin
according to four categories—abundance
and trends, population growth/
productivity, spatial structure/
connectivity, and genetic diversity. As a
concluding step, after considering all of
the available information regarding
demographic and other threats to the
subspecies, we rated the subspecies’
extinction risk according to a qualitative
scale (high, moderate, and low risk).
Although we did update our status
review to incorporate the most recent
threat information for the Taiwanese
humpback dolphin, none of the
comments or information we received
on the proposed rule changed the
outcome of our extinction risk
evaluation for the subspecies. As such,
our conclusions regarding extinction
risk for the Taiwanese humpback
dolphin remain the same. Therefore, we
incorporate and affirm, herein, all
information, discussion, and
conclusions on the extinction risk of the
Taiwanese humpback dolphin in the
final status review report (Whittaker and
Young 2018) and proposed rule (82 FR
28802; June 26, 2017).
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Protective Efforts
In addition to regulatory measures
(e.g., Taiwan’s Wildlife Conservation
Act and designation of Major Wildlife
Habitat, etc.), we considered other
efforts being made to protect the
Taiwanese humpback dolphin. We
considered whether such protective
efforts altered the conclusions of the
extinction risk analysis for the species;
however, none of the information we
received on the proposed rule affected
our conclusions regarding conservation
efforts to protect the dolphin. Therefore,
we incorporate and affirm herein all
information, discussion, and
conclusions on the extinction risk of the
Taiwanese humpback dolphin in the
final status review report (Whittaker and
Young 2018) and proposed rule (82 FR
28802; June 26, 2017).
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Final Listing Determination
We summarize the factors supporting
our final listing determination as
follows: (1) The best available
information indicates that the
subspecies has a critically small
population of less than 100 individuals,
which is likely declining; (2) the
Taiwanese humpback dolphin has a
very restricted range, occurring only in
the shallow waters off the western coast
of Taiwan; (3) the subspecies possesses
life history characteristics that increase
its vulnerability to threats, including
that it is long-lived and has a late age
of maturity, slow population growth,
and low rate of reproduction and
fecundity; (4) the subspecies is confined
to limited habitat in a heavily impacted
area of coastline where ongoing habitat
destruction (including coastal
development, land reclamation, and
fresh water diversion) contributes to a
high risk of extinction; (5) the
Taiwanese humpback dolphin is
experiencing unsustainable rates of
fisheries interactions, including
mortality and major injuries due to
bycatch and entanglement in fishing
gear; and (6) existing regulatory
mechanisms are inadequate for
addressing the most important threats of
habitat destruction and fisheries
interactions. Based on the foregoing
information, which is based on the best
available scientific and commercial
data, we find that the Taiwanese
humpback dolphin meets the definition
of an endangered species and list it as
such.
Effects of Listing
Conservation measures provided for
species listed as endangered or
threatened under the ESA include the
development and implementation of
recovery plans (16 U.S.C. 1533(f));
designation of critical habitat, if prudent
and determinable (16 U.S.C.
1533(a)(3)(A)); and a requirement that
Federal agencies consult with NMFS
under section 7 of the ESA to ensure
their actions are not likely to jeopardize
the species or result in adverse
modification or destruction of
designated critical habitat (16 U.S.C.
1536). For endangered species,
protections also include prohibitions
related to ‘‘take’’ and trade (16 U.S.C.
1538). Take is defined as to harass,
harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to
engage in any such conduct (16 U.S.C.
1532(19)). Recognition of the species’
imperiled status through listing may
also promote conservation actions by
Federal and state agencies, foreign
entities, private groups, and individuals.
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Activities That Would Constitute a
Violation of Section 9 of the ESA
On July 1, 1994, NMFS and the U.S.
Fish and Wildlife Service (USFWS)
published a policy (59 FR 34272) that
requires us to identify, to the maximum
extent practicable, at the time a species
is listed, those activities that would or
would not constitute a violation of
section 9 of the ESA. The intent of this
policy is to increase public awareness of
the potential effects of species listings
on proposed and ongoing activities.
Because we are listing the Taiwanese
humpback dolphin as endangered, all of
the prohibitions of section 9(a)(1) of the
ESA will apply to this subspecies.
Section 9(a)(1) includes prohibitions
against the import, export, use in foreign
commerce, and ‘‘take’’ of the listed
species. These prohibitions apply to all
persons subject to the jurisdiction of the
United States, including all persons in
the United States or its territorial sea,
and U.S. citizens on the high seas.
Activities that could result in a violation
of section 9 prohibitions for Taiwanese
humpback dolphins include, but are not
limited to, the following:
(1) Delivering, receiving, carrying,
transporting, or shipping in interstate or
foreign commerce any Taiwanese
humpback dolphin or any of its parts, in
the course of a commercial activity;
(2) Selling or offering for sale in
interstate commerce any part of a
Taiwanese humpback dolphin, except
antique articles at least 100 years old;
and
(3) Importing or exporting Taiwanese
humpback dolphins or any parts of
these dolphins.
Whether a violation results from a
particular activity is entirely dependent
upon the facts and circumstances of
each incident. Further, an activity not
listed here may in fact constitute a
violation.
Identification of Those Activities That
Would Not Likely Constitute a Violation
of Section 9 of the ESA
Although the determination of
whether any given activity constitutes a
violation is fact dependent, we consider
the following actions, depending on the
circumstances, as being unlikely to
violate the prohibitions in ESA section
9 with regard to Taiwanese humpback
dolphins: (1) Take authorized by, and
carried out in accordance with the terms
and conditions of, an ESA section
10(a)(1)(A) permit issued by NMFS for
purposes of scientific research or the
enhancement of the propagation or
survival of the species; and (2)
continued possession of Taiwanese
humpback dolphins or any parts that
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were in possession at the time of listing.
Such parts may be non-commercially
exported or imported; however, the
importer or exporter must be able to
provide evidence to show that the parts
meet the criteria of ESA section 9(b)(1)
(i.e., held in a controlled environment at
the time of listing, in a non-commercial
activity).
Identifying Section 7 Consultation
Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2))
of the ESA and joint NMFS/USFWS
regulations require Federal agencies to
consult with NMFS to ensure that
activities they authorize, fund, or carry
out are not likely to jeopardize the
continued existence of listed species or
destroy or adversely modify critical
habitat. It is unlikely that the listing of
the Taiwanese humpback dolphin under
the ESA will increase the number of
section 7 consultations, because this
subspecies occurs outside of the United
States and is unlikely to be affected by
U.S. Federal actions.
Critical Habitat
Critical habitat is defined in section 3
of the ESA (16 U.S.C. 1532(5)) as: (1)
The specific areas within the
geographical area occupied by a species,
at the time it is listed in accordance
with the ESA, on which are found those
physical or biological features (a)
essential to the conservation of the
species and (b) that may require special
management considerations or
protection; and (2) specific areas outside
the geographical area occupied by a
species at the time it is listed if such
areas are determined to be essential for
the conservation of the species. Section
4(a)(3)(A) of the ESA (16 U.S.C.
1533(a)(3)(A)) requires that, to the
extent prudent and determinable,
critical habitat be designated
concurrently with the listing of a
species. However, critical habitat cannot
be designated in foreign countries or
other areas outside U.S. jurisdiction (50
CFR 424.12(g)). The Taiwanese
humpback dolphin is endemic to
Taiwan and does not occur within areas
under U.S. jurisdiction. There is no
basis to conclude that any unoccupied
areas under U.S. jurisdiction are
essential for the conservation of the
subspecies. Therefore, we do not intend
to propose any critical habitat
designations for this subspecies.
Peer Review
In December 2004, the Office of
Management and Budget (OMB) issued
a Final Information Quality Bulletin for
Peer Review establishing a minimum
peer review standard. We solicited peer
review comments on the draft status
review report from three scientists with
expertise on cetaceans in general and
specific knowledge regarding the
Taiwanese humpback dolphin in
particular. We received and reviewed
comments from these scientists, and,
prior to publication of the proposed
rule, their comments were incorporated
into the draft status review report
(Whittaker and Young 2017), which was
then made available for public
comment. Peer reviewer comments on
the status review are available at https://
www.cio.noaa.gov/services_programs/
prplans/ID370.html.
References
A complete list of the references used
is available upon request (see
ADDRESSES).
Classification
National Environmental Policy Act
Section 4(b)(1)(A) of the ESA restricts
the information that may be considered
when assessing species for listing and
sets the basis upon which listing
determinations must be made. Based on
the requirements in section 4(b)(1)(A) of
the ESA and the opinion in Pacific Legal
Foundation v. Andrus, 657 F.2d 829
(6th Cir. 1981), we have concluded that
ESA listing actions are not subject to the
environmental assessment requirements
of the National Environmental Policy
Act (NEPA).
economic impacts cannot be considered
when assessing the status of a species.
Therefore, the economic analysis
requirements of the Regulatory
Flexibility Act are not applicable to the
listing process.
In addition, this final rule is exempt
from review under Executive Order
12866.
Paperwork Reduction Act
This final rule does not contain a
collection-of-information requirement
for the purposes of the Paperwork
Reduction Act.
Executive Order 13132, Federalism
In accordance with E.O. 13132, we
determined that this final rule does not
have significant federalism effects and
that a federalism assessment is not
required.
List of Subjects in 50 CFR Part 224
Endangered and threatened species,
Exports, Transportation.
Dated: May 4, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 224 is amended
as follows:
PART 224—ENDANGERED MARINE
AND ANADROMOUS SPECIES
1. The authority citation for part 224
continues to read as follows:
■
Authority: 16 U.S.C. 1531–1543 and 16
U.S.C 1361 et seq.
2. In § 224.101, amend the table in
paragraph (h) by adding an entry for
‘‘Dolphin, Taiwanese humpback’’ under
‘‘Marine Mammals’’ in alphabetical
order, by common name, to read as
follows:
■
Executive Order 12866, Regulatory
Flexibility Act
§ 224.101 Enumeration of endangered
marine and anadromous species.
As noted in the Conference Report on
the 1982 amendments to the ESA,
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Species 1
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Description of
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Critical
habitat
ESA
rules
*
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).
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Agencies
[Federal Register Volume 83, Number 90 (Wednesday, May 9, 2018)]
[Rules and Regulations]
[Pages 21182-21187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09890]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 160413329-8412-03]
RIN 0648-XE571
Endangered and Threatened Wildlife and Plants: Final Rule To List
the Taiwanese Humpback Dolphin as Endangered Under the Endangered
Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In response to a petition by Animal Welfare Institute, Center
for Biological Diversity, and WildEarth Guardians, we, NMFS, are
issuing a final rule to list the Taiwanese humpback dolphin (Sousa
chinensis taiwanensis) as endangered under the Endangered Species Act
(ESA). We have reviewed the status of the Taiwanese humpback dolphin,
including efforts being made to protect the subspecies, and considered
public comments submitted on the proposed listing rule as well as new
information received since publication of the proposed rule. Based on
all of this information, we
[[Page 21183]]
have determined that the Taiwanese humpback dolphin warrants listing as
an endangered subspecies. We will not designate critical habitat for
this subspecies, because the geographical areas occupied by these
dolphins are entirely outside U.S. jurisdiction, and we have not
identified any unoccupied areas within U.S. jurisdiction that are
currently essential to the conservation of the subspecies.
DATES: This final rule is effective June 8, 2018.
ADDRESSES: Endangered Species Conservation Division, NMFS Office of
Protected Resources (F/PR3), 1315 East-West Highway, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Chelsey Young, NMFS, Office of
Protected Resources, [email protected], (301) 427-8491.
SUPPLEMENTARY INFORMATION:
Background
On March 9, 2016, we received a petition from Animal Welfare
Institute (AWI), Center for Biological Diversity (CBD), and WildEarth
Guardians (Guardians) to list the Taiwanese humpback dolphin (S.
chinensis taiwanensis) as threatened or endangered under the ESA
throughout its range. We found that the petitioned action may be
warranted for the species and, on May 12, 2016, we published a positive
90-day finding for the Taiwanese humpback dolphin (81 FR 29515),
announcing that the petition presented substantial scientific or
commercial information indicating the petitioned action may be
warranted range wide, and explaining the basis for the finding. We also
announced the initiation of a status review of the species, as required
by section 4(b)(3)(a) of the ESA, and requested information to inform
the agency's decision on whether the subspecies warranted listing as
endangered or threatened under the ESA. On June 26, 2017, we published
a proposed rule to list the Taiwanese humpback dolphin as endangered
(82 FR 28802). We requested public comments on the information in the
proposed rule and associated status review during a 60-day public
comment period, which closed on August 25, 2017. This final rule
provides a discussion of the public comments received in response to
the proposed rule and our final determination on the petition to list
the Taiwanese humpback dolphin under the ESA.
Listing Determination Under the ESA
We are responsible for determining whether species meet the
definition of threatened or endangered under the ESA (16 U.S.C. 1531 et
seq.). To make this determination, we first consider whether a group of
organisms constitutes a ``species'' under the ESA, then whether the
status of the species qualifies it for listing as either threatened or
endangered. Section 3 of the ESA defines a ``species'' to include any
subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife, which
interbreeds when mature. The Taiwanese humpback dolphin, S. chinensis
taiwanensis, is a formally recognized subspecies (Wang et al., 2015;
Committee on Taxonomy, 2016) and thus meets the ESA definition of a
``species.''
Section 3 of the ESA defines an endangered species as any species
which is in danger of extinction throughout all or a significant
portion of its range and a threatened species as one which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. We interpret an ``endangered
species'' to be one that is presently in danger of extinction. A
``threatened species,'' on the other hand, is not presently in danger
of extinction, but is likely to become so in the foreseeable future
(that is, at a later time). In other words, the primary statutory
difference between a threatened species and endangered species is the
timing of when a species may be in danger of extinction, either
presently (endangered) or in the foreseeable future (threatened).
Section 4(a)(1) of the ESA requires us to determine whether any
species is endangered or threatened due to any one or a combination of
the following five threat factors: The present or threatened
destruction, modification, or curtailment of its habitat or range;
overutilization for commercial, recreational, scientific, or
educational purposes; disease or predation; the inadequacy of existing
regulatory mechanisms; or other natural or manmade factors affecting
its continued existence. We are also required to make listing
determinations based solely on the best scientific and commercial data
available, after conducting a review of the species' status and after
taking into account efforts being made by any state or foreign nation
to protect the species.
In assessing the extinction risk of the Taiwanese humpback dolphin,
we considered demographic risk factors, such as those developed by
McElhany et al. (2000), to organize and evaluate the forms of risks.
The approach of considering demographic risk factors to help frame the
consideration of extinction risk has been used in many of our previous
status reviews (see https://www.nmfs.noaa.gov/pr/species for links to
these reviews). In this approach, the collective condition of
individual populations is considered at the species level according to
four demographic viability factors: Abundance and trends, population
growth rate or productivity, spatial structure and connectivity, and
genetic diversity. These viability factors reflect concepts that are
well-founded in conservation biology and that individually and
collectively provide strong indicators of extinction risk.
Scientific conclusions about the overall risk of extinction faced
by the Taiwanese humpback dolphin under present conditions and in the
foreseeable future are based on our evaluation of the species'
demographic risks and section 4(a)(1) threat factors. Our assessment of
overall extinction risk considered the likelihood and contribution of
each particular factor, synergies among contributing factors, and the
cumulative impact of all demographic risks and threats on the species.
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a
listing determination for a species, to take into consideration those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect the
species. Therefore, prior to making a listing determination, we also
assess such protective efforts to determine if they are adequate to
mitigate the existing threats.
Summary of Comments
In response to our request for comments on the proposed rule, we
received a total of eight public comments from several non-governmental
organizations as well as individual members of the public. All comments
were supportive of the proposed listing of the Taiwanese humpback
dolphin as endangered and the large majority provided no new or
substantive data or information relevant to the listing of Taiwanese
humpback dolphin that was not already considered in the status review
report and proposed rule. We have considered all public comments, and
we provide responses to all relevant issues raised by comments as
summarized below.
[[Page 21184]]
Comments on Proposed Listing Determination
Comment 1: As mentioned previously, all public comments received
were supportive of the proposed listing determination for the Taiwanese
humpback dolphin as endangered. One commenter emphasized the
detrimental ecosystem impacts that can result from species extinctions.
The commenter also noted the importance of the United States to
continue leading in the area of environmental preservation and
expressed support for the proposed listing.
Several commenters reiterated information and many of the points
from the status review and proposed rule for the Taiwanese humpback
dolphin, notably the subspecies' small and dwindling population, its
restricted range in the shallow waters of the Taiwan Strait, the
numerous anthropogenic threats the subspecies faces, and the need for
more stringent regulations to protect the dolphin. The petitioners
(AWI, CBD, and Guardians) also submitted a comment letter in support of
our endangered listing determination for the Taiwanese humpback
dolphin. The comment letter largely reiterated information from the
status review and proposed rule and emphasized the severity of
fisheries interactions, results of population viability models showing
population declines, and the inadequacy of current laws to protect the
dolphin. They also provided new scientific and commercial information
regarding the emerging threat of acoustic disturbance to the subspecies
(discussed below in Comment 2). The Marine Mammal Commission also
submitted a letter of support regarding our determination that the
Taiwanese humpback dolphin has a high risk of extinction throughout its
range and warrants listing as an endangered subspecies.
Response: We acknowledge the several public comments in support of
our listing determination and the public interest in conserving the
Taiwanese humpback dolphin.
Comments on Threats to the Taiwanese Humpback Dolphin
Comment 2: We received a comment letter from the petitioners (AWI,
CBD, and Guardians) that provided some new scientific information
related to the threat of underwater noise and acoustic disturbance to
the Taiwanese humpback dolphin. Specifically, the commenters emphasized
the emerging threat of pile-driving activities associated with the
development and installation of offshore wind farms in close proximity
to the dolphin's habitat. The commenters provided recent studies that
evaluated the in-situ noise pressure levels from these types of
activities (Chen et al., 2017a, 2017b) and referred to NMFS's technical
guidance for assessing the effects of anthropogenic sound on marine
mammal hearing to suggest that the development of offshore wind farms
is a significant threat to the Taiwanese humpback dolphin. We received
a letter from another group of commenters expressing similar concerns
regarding the wind farm development on the western coast of Taiwan. The
commenters stated that ``offshore wind farms and their construction
will exacerbate noise pollution that can be traumatically harmful to
the dolphins.''
Response: We agree with commenters that the development of offshore
wind farms on the western coast of Taiwan is concerning for the
Taiwanese humpback dolphin, particularly given the limited amount of
suitable habitat available to the subspecies. We incorporated this new
information into our status review report, and we agree that this new
information further supports our endangered listing determination for
the dolphin. As described in the status review report and proposed
rule, acoustic disturbance is likely a threat that compounds other
threats to the population by decreasing foraging success, increasing
stress, and decreasing immune health. As such, we ranked this threat as
``moderate,'' meaning that it is likely that this particular threat
contributes significantly to the subspecies' risk of extinction. We
maintain our conclusion regarding this threat ranking for acoustic
disturbance to the Taiwanese humpback dolphin. However, given the
increasing development activities related to the installation of
numerous wind turbines slated to occur within the dolphin's habitat in
the next several years, we acknowledge that the threat of acoustic
disturbance to the Taiwanese humpback dolphin population is likely to
increase in the future.
Summary of Changes From the Proposed Listing Rule
We did not receive, nor did we find, data or references that
presented substantial new information to change our proposed listing
determination. We did, however, make some revisions to the status
review report (Whittaker and Young 2018) to incorporate, as
appropriate, relevant information that we received in response to our
request for public comments or identified ourselves. Specifically, we
updated the status review to include new information regarding the
threat of acoustic disturbance to the Taiwanese humpback dolphin,
particularly as it relates to the increase in underwater noise that is
likely to occur from the construction of offshore wind farms within the
subspecies' habitat.
Status Review
The status review for the Taiwanese humpback dolphin was completed
by NMFS staff from the Office of Protected Resources. To complete the
status review, we compiled the best available data and information on
the subspecies' biology, ecology, life history, threats, and
conservation status by examining the petition and cited references, and
by conducting a comprehensive literature search and review. We also
considered information submitted to us in response to our petition
finding. The draft status review report was subjected to independent
peer review as required by the Office of Management and Budget Final
Information Quality Bulletin for Peer Review (M-05-03; December 16,
2004). The draft status review report was peer reviewed by three
independent specialists selected from the academic and scientific
community, with expertise in cetacean biology, conservation and
management, and specific knowledge of the Taiwanese humpback dolphin.
The peer reviewers were asked to evaluate the adequacy,
appropriateness, and application of data used in the draft status
review report as well as the findings made in the ``Assessment of
Extinction Risk'' section of the report. All peer reviewer comments
were addressed prior to finalizing the draft status review report.
We subsequently reviewed the status review report, and its cited
references, and we find the status review report, upon which the
proposed and final rules are based, provides the best available
scientific and commercial information on the Taiwanese humpback
dolphin. The final status review report (cited as Whittaker and Young
2018) is available on our website (see ADDRESSES section).
ESA Section 4(a)(1) Factors Affecting the Taiwanese Humpback Dolphin
As stated previously and as discussed in the proposed rule (82 FR
28802; June 26, 2017), we considered whether any one or a combination
of the five threat factors specified in section 4(a)(1) of the ESA is
contributing to the extinction risk of the Taiwanese humpback dolphin.
One commenter provided additional information related to threats,
particularly underwater noise from coastal and energy development. The
information provided was
[[Page 21185]]
consistent with or reinforced information in the status review report
and proposed rule, and thus, did not change our conclusions regarding
any of the section 4(a)(1) factors or their interactions. Therefore, we
incorporate and affirm herein all information, discussion, and
conclusions regarding the factors affecting the Taiwanese humpback
dolphin from the final status review report (Whittaker and Young 2018)
and the proposed rule (82 FR 28802; June 26, 2017).
Extinction Risk
As discussed previously, the status review evaluated the
demographic risks to the Taiwanese humpback dolphin according to four
categories--abundance and trends, population growth/productivity,
spatial structure/connectivity, and genetic diversity. As a concluding
step, after considering all of the available information regarding
demographic and other threats to the subspecies, we rated the
subspecies' extinction risk according to a qualitative scale (high,
moderate, and low risk). Although we did update our status review to
incorporate the most recent threat information for the Taiwanese
humpback dolphin, none of the comments or information we received on
the proposed rule changed the outcome of our extinction risk evaluation
for the subspecies. As such, our conclusions regarding extinction risk
for the Taiwanese humpback dolphin remain the same. Therefore, we
incorporate and affirm, herein, all information, discussion, and
conclusions on the extinction risk of the Taiwanese humpback dolphin in
the final status review report (Whittaker and Young 2018) and proposed
rule (82 FR 28802; June 26, 2017).
Protective Efforts
In addition to regulatory measures (e.g., Taiwan's Wildlife
Conservation Act and designation of Major Wildlife Habitat, etc.), we
considered other efforts being made to protect the Taiwanese humpback
dolphin. We considered whether such protective efforts altered the
conclusions of the extinction risk analysis for the species; however,
none of the information we received on the proposed rule affected our
conclusions regarding conservation efforts to protect the dolphin.
Therefore, we incorporate and affirm herein all information,
discussion, and conclusions on the extinction risk of the Taiwanese
humpback dolphin in the final status review report (Whittaker and Young
2018) and proposed rule (82 FR 28802; June 26, 2017).
Final Listing Determination
We summarize the factors supporting our final listing determination
as follows: (1) The best available information indicates that the
subspecies has a critically small population of less than 100
individuals, which is likely declining; (2) the Taiwanese humpback
dolphin has a very restricted range, occurring only in the shallow
waters off the western coast of Taiwan; (3) the subspecies possesses
life history characteristics that increase its vulnerability to
threats, including that it is long-lived and has a late age of
maturity, slow population growth, and low rate of reproduction and
fecundity; (4) the subspecies is confined to limited habitat in a
heavily impacted area of coastline where ongoing habitat destruction
(including coastal development, land reclamation, and fresh water
diversion) contributes to a high risk of extinction; (5) the Taiwanese
humpback dolphin is experiencing unsustainable rates of fisheries
interactions, including mortality and major injuries due to bycatch and
entanglement in fishing gear; and (6) existing regulatory mechanisms
are inadequate for addressing the most important threats of habitat
destruction and fisheries interactions. Based on the foregoing
information, which is based on the best available scientific and
commercial data, we find that the Taiwanese humpback dolphin meets the
definition of an endangered species and list it as such.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include the development and implementation of
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if
prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and a requirement
that Federal agencies consult with NMFS under section 7 of the ESA to
ensure their actions are not likely to jeopardize the species or result
in adverse modification or destruction of designated critical habitat
(16 U.S.C. 1536). For endangered species, protections also include
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is
defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct (16
U.S.C. 1532(19)). Recognition of the species' imperiled status through
listing may also promote conservation actions by Federal and state
agencies, foreign entities, private groups, and individuals.
Activities That Would Constitute a Violation of Section 9 of the ESA
On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service
(USFWS) published a policy (59 FR 34272) that requires us to identify,
to the maximum extent practicable, at the time a species is listed,
those activities that would or would not constitute a violation of
section 9 of the ESA. The intent of this policy is to increase public
awareness of the potential effects of species listings on proposed and
ongoing activities.
Because we are listing the Taiwanese humpback dolphin as
endangered, all of the prohibitions of section 9(a)(1) of the ESA will
apply to this subspecies. Section 9(a)(1) includes prohibitions against
the import, export, use in foreign commerce, and ``take'' of the listed
species. These prohibitions apply to all persons subject to the
jurisdiction of the United States, including all persons in the United
States or its territorial sea, and U.S. citizens on the high seas.
Activities that could result in a violation of section 9 prohibitions
for Taiwanese humpback dolphins include, but are not limited to, the
following:
(1) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any Taiwanese humpback dolphin or any of
its parts, in the course of a commercial activity;
(2) Selling or offering for sale in interstate commerce any part of
a Taiwanese humpback dolphin, except antique articles at least 100
years old; and
(3) Importing or exporting Taiwanese humpback dolphins or any parts
of these dolphins.
Whether a violation results from a particular activity is entirely
dependent upon the facts and circumstances of each incident. Further,
an activity not listed here may in fact constitute a violation.
Identification of Those Activities That Would Not Likely Constitute a
Violation of Section 9 of the ESA
Although the determination of whether any given activity
constitutes a violation is fact dependent, we consider the following
actions, depending on the circumstances, as being unlikely to violate
the prohibitions in ESA section 9 with regard to Taiwanese humpback
dolphins: (1) Take authorized by, and carried out in accordance with
the terms and conditions of, an ESA section 10(a)(1)(A) permit issued
by NMFS for purposes of scientific research or the enhancement of the
propagation or survival of the species; and (2) continued possession of
Taiwanese humpback dolphins or any parts that
[[Page 21186]]
were in possession at the time of listing. Such parts may be non-
commercially exported or imported; however, the importer or exporter
must be able to provide evidence to show that the parts meet the
criteria of ESA section 9(b)(1) (i.e., held in a controlled environment
at the time of listing, in a non-commercial activity).
Identifying Section 7 Consultation Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and joint NMFS/
USFWS regulations require Federal agencies to consult with NMFS to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of listed species or
destroy or adversely modify critical habitat. It is unlikely that the
listing of the Taiwanese humpback dolphin under the ESA will increase
the number of section 7 consultations, because this subspecies occurs
outside of the United States and is unlikely to be affected by U.S.
Federal actions.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(5)) as: (1) The specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed if such areas are determined to be essential for the
conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C.
1533(a)(3)(A)) requires that, to the extent prudent and determinable,
critical habitat be designated concurrently with the listing of a
species. However, critical habitat cannot be designated in foreign
countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)).
The Taiwanese humpback dolphin is endemic to Taiwan and does not occur
within areas under U.S. jurisdiction. There is no basis to conclude
that any unoccupied areas under U.S. jurisdiction are essential for the
conservation of the subspecies. Therefore, we do not intend to propose
any critical habitat designations for this subspecies.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing a
minimum peer review standard. We solicited peer review comments on the
draft status review report from three scientists with expertise on
cetaceans in general and specific knowledge regarding the Taiwanese
humpback dolphin in particular. We received and reviewed comments from
these scientists, and, prior to publication of the proposed rule, their
comments were incorporated into the draft status review report
(Whittaker and Young 2017), which was then made available for public
comment. Peer reviewer comments on the status review are available at
https://www.cio.noaa.gov/services_programs/prplans/ID370.html.
References
A complete list of the references used is available upon request
(see ADDRESSES).
Classification
National Environmental Policy Act
Section 4(b)(1)(A) of the ESA restricts the information that may be
considered when assessing species for listing and sets the basis upon
which listing determinations must be made. Based on the requirements in
section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal
Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981), we have concluded
that ESA listing actions are not subject to the environmental
assessment requirements of the National Environmental Policy Act
(NEPA).
Executive Order 12866, Regulatory Flexibility Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under Executive
Order 12866.
Paperwork Reduction Act
This final rule does not contain a collection-of-information
requirement for the purposes of the Paperwork Reduction Act.
Executive Order 13132, Federalism
In accordance with E.O. 13132, we determined that this final rule
does not have significant federalism effects and that a federalism
assessment is not required.
List of Subjects in 50 CFR Part 224
Endangered and threatened species, Exports, Transportation.
Dated: May 4, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 224 is amended
as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C 1361 et seq.
0
2. In Sec. 224.101, amend the table in paragraph (h) by adding an
entry for ``Dolphin, Taiwanese humpback'' under ``Marine Mammals'' in
alphabetical order, by common name, to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous
species.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
------------------------------------------------------------------------ Citation(s) for Critical ESA
Description of listing habitat rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Marine Mammals
* * * * * * *
Dolphin, Taiwanese humpback.... Sousa chinensis Entire subspecies. [Insert Federal NA NA
taiwanensis. Register page
where the
document begins],
May 9, 2018.
[[Page 21187]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
* * * * *
[FR Doc. 2018-09890 Filed 5-8-18; 8:45 am]
BILLING CODE 3510-22-P