Endangered and Threatened Wildlife and Plants; Final Listing Determinations on Proposal To List the Banggai Cardinalfish and Harrisson's Dogfish Under the Endangered Species Act
Federal Register, Volume 81 Issue 12 (Wednesday, January 20, 2016)
Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)
Rules and Regulations
Pages 3023-3031
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-00943
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
Docket No. 151120999-5999-01
RIN 0648-XE328
Endangered and Threatened Wildlife and Plants; Final Listing Determinations on Proposal To List the Banggai Cardinalfish and Harrisson's Dogfish Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In response to a petition, we, NMFS, issue a final rule to list the Banggai cardinalfish (Pterapogon kauderni) as a threatened species under the Endangered Species Act (ESA). We have also determined that the proposed listing of Harrisson's dogfish shark (Centrophorus harrissoni) as a threatened species is not warranted at this time. We will not designate critical habitat for Banggai cardinalfish because the geographical areas occupied by this species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are currently essential to the conservation of this species.
DATES: This final rule is effective February 19, 2016.
ADDRESSES: Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910, USA.
FOR FURTHER INFORMATION CONTACT: Therese Conant or Maggie Miller, NMFS, Office of Protected Resources, (301) 427-8403.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the Endangered Species Act (ESA). We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 16, 2014, we published a proposed rule to list the dusky sea snake (Aipysurus fuscus) and three foreign corals (Cantharellus noumeae, Siderastrea glynni, and Tubastraea floreana) as endangered species, and we proposed to list the Banggai cardinalfish (Pterapogon kauderni) and Harrisson's dogfish (Centrophorus harrissoni) as threatened species (79 FR74953). We requested public comment on information in the status reviews and proposed rule through February 17, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determination on the petition to list the Banggai cardinalfish (Pterapogon kauderni) and Harrisson's dogfish (Centrophorus harrissoni) under the ESA. Our final determinations for the other species proposed for listing in the December 16, 2014, proposed rule (dusky sea snake and three foreign corals) were made in a prior rule (80 FR 60560). The status of the findings and relevant Federal Register notices for those and the other 21 species can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first whether a group of organisms constitutes a ``species'' under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a ``species'' to include ``any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.''
Section 3 of the ESA defines an endangered species as ``any species which is in danger of extinction throughout all or a significant portion of its range'' and a threatened species as one ``which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.'' We interpret an ``endangered species'' to be one that is presently in danger of extinction. A ``threatened species,'' on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and an endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term ``foreseeable future.'' It is appropriate to interpret ``foreseeable future'' as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.
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
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account efforts being made by any state or foreign nation to protect the species.
In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a ``species.'' Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these two species, we consider the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/
productivity, spatial structure/connectivity, and diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.
We then assess efforts being made to protect the species, to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species.
Summary of Comments
In the solicitation for information from the public on the proposed rule, we received information and/or comments on the Banggai cardinalfish and Harrisson's dogfish proposals from 13 parties. These comments are broken out by species and summarized below.
Banggai Cardinalfish
Twelve commenters submitted information and/or commented on the proposed listing of the Banggai cardinalfish.
Comment 1: One commenter felt that instead of listing under the ESA, the Banggai cardinalfish would derive a greater benefit if we would engage in direct talks and support for Indonesia's internal efforts to conserve the species. The commenter also felt that continued efforts to list the species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) should be undertaken.
Response: We were petitioned to list the Banggai cardinalfish and found that the petitioned action may be warranted for the species (see Background). Thus, we are required to review the best available scientific and commercial data to determine whether the species is threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). We agree that Indonesia's efforts to conserve and protect the Banggai cardinalfish are essential to the long-term viability of the species and should be supported. The ESA recognizes the international instruments, including CITES, to conserve and protect various species. Further, the ESA calls for a suite of engagements to enhance international cooperation with foreign nations where listed species occur. Through the ESA, we are encouraged to work with foreign countries to enter into bilateral or multilateral agreements to provide for conservation of species. Regarding CITES, in 2007, due to overharvest concerns, the Banggai cardinalfish was proposed to be listed under CITES Appendix II. Appendix II includes species that are vulnerable to overexploitation, but not at risk of extinction under CITES criteria; trade must be regulated to avoid exploitation rates that are incompatible with species survival. Indonesia did not support the proposal and it was withdrawn. The next Conference of the Parties (COP) will be held in 2016. The United States has not determined which species it will propose for listing at the next COP. The United States has a public process to determine which species it will propose.
Comment 2: One commenter stated that requiring the aquarium trade to only buy captive-bred or maricultured specimens through a section 4(d) protective regulation would not control commercial trade in wild-
caught fish because there is no way to discern a captive-bred or maricultured specimen from a wild-harvested one.
Response: We agree that identifying a captive-bred from a wild-
harvested fish would be difficult. We have not decided which, if any, of the section 9 prohibitions to apply to the Banggai cardinalfish. We intend to announce an advance notice of proposed rulemaking to solicit public comment and information on any section 4(d) protective regulation, if proposed, for the Banggai cardinalfish.
Comment 3: Many commenters felt that the data do not support a listing under the ESA. Rather, they stated that the Banggai cardinalfish should be listed as a species of concern. They recommended continued data collection on population trends and structure, stratified by habitat in both the historical and introduced ranges, establishment of a sampling regime to quantify habitat trends in abundance and quality, studies of the Banggai cardinalfish's use of alternative microhabitats, and consultations with the Republic of Indonesia on current and future management plans for wild harvest and captive propagation. One commenter felt the population abundance transect surveys need to be standardized, given the species' patchy distribution and variable density. They felt this was necessary for future evaluations on the species' population status and trends. However, they agreed with the overall conclusion that abundance has declined due to unsustainable harvest in the early years. One commenter recommended we extend the period to make a final determination, citing a lack of data to support the proposed listing and the need to solicit additional data.
Response: We disagree that the data are insufficient to make a listing determination. Data exist on the Banggai cardinalfish's biology, population structure, abundance, trends, habitat use and threats that were reported in the proposed rule and the status review. We agree that standardized surveys across years would be ideal. However, the existing data indicate an overall population decline, and decreases in population density are also evidenced by significant declines in the catch per unit effort. Prior to 2003, collectors from Bone Baru typically required one day to capture approximately 2,000 specimens. In 2007, they reported requiring one week to capture the same number. For Banggai Island, reported mean catch declined from about 1,000 fish/hour in 2000 to 25-330 fish/hour in 2004. Extirpations of populations within the Banggai cardinalfish's natural range have occurred. In particular, extirpation of local populations has been documented in areas with increased harvest of microhabitat, such as Diadema sea urchins and sea anemones, combined with fishing pressure on Banggai cardinalfish. Further fragmentation of an already small endemic population, which exhibits high genetic population substructuring, increases the extinction risk for the Banggai cardinalfish.
Comment 4: One commenter felt that the species' life history represents an adaptation of a small-bodied fish to its physical environment (i.e., shallow
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waters separated by deep channels with swift currents). They contend that its early maturity, low fecundity, and extended parental care are manifestations of a reproductive strategy in a physically limited environment. They state that situational cannibalism is further evidence of a behavior adapted to maintain abundance within the carrying capacity of its microhabitat-oriented habitat. Therefore, they do not concur with the assertion that these characteristics lower Banggai cardinalfish resilience.
Response: While we agree the Banggai cardinalfish life history characteristics are likely adaptive, we disagree that these traits do not render the species less resilient and vulnerable to threats. The Banggai cardinalfish lacks dispersal ability and exhibits high site fidelity, and new recruits stay within parental habitat. Thus, population discreteness is high and recolonization is unlikely once a local population is extirpated. Local populations off Liang Island, Peleng Island, and Masoni Island are reported extirpated, and interviews with local fishermen indicate extirpation of local populations throughout the Banggai Archipelago.
Comment 5: Several commenters provided information on their shift from purchasing wild-harvest to mariculture specimens, including from domestic facilities. Many commenters felt that directed harvest for the live marine ornamental reef fish trade no longer poses a significant threat to the Banggai cardinalfish.
Response: We appreciate the information submitted, as it supports the proposed rule's statement that Banggai cardinalfish exports for the ornamental live reef fish trade may be decreasing, although systematic data are lacking. We reported that the large-scale aquaculture facility based in Thailand and efforts to captive-breed the species in the United States may alleviate some of the pressure to collect fish from wild populations, but the degree to which aquaculture would affect harvest of wild populations is unknown. As we explain in more detail in the response to the next comment, the evidence shows that directed harvest for the live marine ornamental reef fish trade and harvest of microhabitat remain concerns.
Comment 6: One commenter felt that the improved harvest practices, development of significant aquaculture production, and Indonesian management initiatives undertaken since 2007 were not fully considered in the proposed rule.
Response: We disagree. All section 4(a)(1) factors that are found to pose an extinction risk to the Banggai cardinalfish, as well as ongoing conservation efforts and other mitigating factors, were considered in the proposed rule. In the proposed rule, we considered the improved harvest practices, the increasing aquaculture facilities, and the local management initiatives under these factors. If the species is endangered or threatened with extinction because of any one of the 4(a)(1) factors, then we must determine that listing is warranted. In our synthesis of the extinction risk to the Banggai cardinalfish, we stated that overutilization from direct harvest for the ornamental live reef fish trade has significantly impacted the Banggai cardinalfish and remains a concern. We further stated an increase in compliance with the Fish Quarantine regulations and improved trade practices have occurred in recent years, and we anticipated compliance and trade practices will likely continue to improve in the future, which may mitigate impacts through sustainable trade. However, since the proposed rule, interviews were held in March 2015 with Indonesian government officials and Banggai cardinalfish collectors. The interviews were conducted by Dr. Vagelli, New Jersey Academy for Aquatic Sciences, who served as a peer reviewer (Information Quality Act, Pub. L. 106-554) for the Banggai cardinalfish status review. The March 2015 report (Vagelli unpublished report 2015) is available upon request (see FOR FURTHER INFORMATION CONTACT). Indonesian officials and collectors reported that compliance with the Fish Quarantine regulations was largely voluntary and that improved trade practices had not been implemented (Vagelli unpublished report 2015). Thus, reports are conflicting on whether compliance and trade practices have improved and are likely to improve in the future. Participation in collection of Banggai cardinalfish for the live ornamental reef trade has dropped in recent years. Captive-bred facilities have recently started in the United States and Thailand and are anticipated to decrease the threat of directed harvest of the wild populations in the future, but the degree to which aquaculture would affect harvest of wild populations is unknown. Data also indicate that by 2007, harvest of microhabitat (sea urchins and sea anemones) had negatively impacted cardinalfish populations, and the harvest had increased by 2011, and will continue in the future, which negatively impacts Banggai cardinalfish and their ability to avoid predators. Overutilization from direct harvest for the ornamental live reef fish trade has significantly impacted the Banggai cardinalfish and remains a concern. Data from several sources reported an increase in compliance with the Fish Quarantine regulations and improved trade practices, but an updated survey in 2015 reported voluntary compliance and a lack of improved trade practices. For these reasons, we conclude that directed harvest for the live marine ornamental reef fish trade harvest and harvest of microhabitat remain concerns.
Comment 7: One commenter stated that the introduced populations in Palu Bay and Luwuk Harbor must be considered in the listing process.
Response: We considered these introduced populations. The introduced populations are an artifact of the commercial ornamental live reef trade and are not part of any conservation program to benefit the native populations. The introduced populations were introduced through the practice of high-grading (i.e., discarding live specimens determined to be of low quality/non saleable) or escapement near trade centers for the ornamental live reef market. The introduced population at Lembeh Strait is considered invasive and may be impacting local diversity through interspecific competition for resources in the area, but specific data on ecological impacts are lacking. Because one of the purposes of the ESA is to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved (16 U.S.C. 1531(b)), we consider a species' natural range to be biologically and ecologically important to the species' viability to persist in the face of threats. The introduced populations are outside of the Banggai cardinalfish's natural range and may not contribute to the species' ability to persist and therefore were not included in the analysis of the overall extinction risk to the species.
Comment 8: One commenter disagreed with the statement in the proposed rule that designation of critical habitat was not proposed for any of the species, including the Banggai cardinalfish, because critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)). The commenter argued that we should construe areas under U.S. ``jurisdiction,'' as used in Sec. 424.12(h), to include Taiwan and areas under U.S. military protection. The commenter cited multiple sections in U.S. Code Title 22, Foreign Relations and Intercourse, and referenced ``U.S. Navy
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Okinawan Dugong litigation'' without citation.
Response: We found one line of cases involving the Department of Defense and the Okinawa dugong (Ctr. for Biological Diversity v. Hagel, 80 F. Supp. 3d 991 (N.D. Cal. 2015); Okinawa Dugong v. Gates, 543 F.Supp.2d 1082 (N.D. Cal. 2008); Okinawa Dugong v. Rumsfeld, No. 03-
4350, 2005 WL 522106 (N.D. Cal. Mar. 2, 2005) (unpublished)). These cases interpret specific provisions of the National Historic Preservation Act, not the ESA, and have no bearing on interpretation or application of 50 CFR 424.12(h). We also note that the Banggai cardinalfish's natural historical and present range does not occur within the area mentioned by the commenter, and therefore, the question of critical habitat designation is irrelevant.
Harrisson's Dogfish
We received a single submission on the proposal to list Harrisson's dogfish from the Australian Government Department of the Environment. We briefly summarize their comments below and respond with references to our prior documents where relevant.
Comment 9: The proposal to list Harrisson's dogfish suggests that lower catches in recent years reflect a decreasing population. This conclusion appears not to have taken into account restrictive catch limits for Harrisson's dogfish in the last five years in the Southern and Eastern Scalefish and Shark Fishery (SESSF). Since 2010, a limit of 15 kg per day of Harrisson's dogfish has been implemented, which has contributed to reductions in catch rates by stopping targeted fishing and encouraging active avoidance of dogfish.
Response: The text in the proposed rule, to which this comment refers, states ``However, even before the prohibition, reported catch rates of Harrisson's dogfish in the SESSF have been minimal in recent years, likely due to the low abundance of the species on the continental margin where the fisheries operate.'' While we agree that the 2010 catch limit does, in part, contribute to the observed low catches of the species, we would like to point out that even before the 2010 catch limit, C. harrissoni catches were rare. According to Walker et al. (2009), annual catches of Harrisson's dogfish in the SESSF from 2000-2006 were
