81 FR 72545 - Endangered and Threatened Wildlife and Plants: Final Rule To List the Island Grouper (Mycteroperca fusca) as Threatened and the Gulf Grouper (Mycteroperca jordani) as Endangered Under the Endangered Species Act

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224

Federal Register Volume 81, Issue 203 (October 20, 2016)

Page Range		72545-72550
FR Document		2016-25420

We, NMFS, issue a final rule to list two foreign grouper species under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the gulf grouper (Mycteroperca jordani) and the island grouper (Mycteroperca fusca) warrant listing as endangered and threatened species, respectively. We will not designate critical habitat for either of these species because the geographical areas occupied by these 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 either of these species.

Federal Register, Volume 81 Issue 203 (Thursday, October 20, 2016)

[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Rules and Regulations]
[Pages 72545-72550]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-25420]

[[Page 72545]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration 50 CFR Parts 223
and 224

[Docket No. 150527481-6928-02]
RIN 0648-XD971

Endangered and Threatened Wildlife and Plants: Final Rule To List
the Island Grouper (Mycteroperca fusca) as Threatened and the Gulf
Grouper (Mycteroperca jordani) as Endangered Under the Endangered
Species Act

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final rule to list two foreign grouper
species under the Endangered Species Act (ESA). We considered comments
submitted on the proposed listing rule and have determined that the
gulf grouper (Mycteroperca jordani) and the island grouper
(Mycteroperca fusca) warrant listing as endangered and threatened
species, respectively. We will not designate critical habitat for
either of these species because the geographical areas occupied by
these 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 either of these species.

DATES: This final rule is effective November 21, 2016.

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

FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, Office of
Protected Resources (OPR), (301) 427-8469.

SUPPLEMENTARY INFORMATION:

Background

On July 15, 2013, we received a petition from WildEarth Guardians
to list 81 marine species or subpopulations as threatened or endangered
under the ESA. This petition included species from many different
taxonomic groups, and we prepared our 90-day findings in batches by
taxonomic group. We found that the petitioned actions may be warranted
for 24 of the species and 3 of the subpopulations and announced the
initiation of status reviews for each of the 24 species and 3
subpopulations (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 September 23, 2015, we
published a proposed rule to list the gulf grouper (Mycteroperca
jordani) as an endangered species and the island grouper (Mycteroperca
fusca) as a threatened species (80 FR 57314). We requested public
comment on the information in the draft status review and proposed
rule, and the comment period was open through November 23, 2015. This
final rule provides a discussion of the information we received during
the public comment period and our final determinations on the petition
to list the gulf grouper and island grouper under the ESA. The status
of the findings and relevant Federal Register notices for the other 22
species and 3 subpopulations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

Listing Species Under the Endangered Species Act

We are responsible for determining whether species are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this
determination, we first consider whether a group of organisms
constitutes a ``species'' under 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 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 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 grouper species, we
considered the demographic viability factors developed by McElhany et
al. (2000). 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 viable population
descriptors: Abundance, growth rate/productivity, spatial structure/
connectivity, and diversity. These viable population descriptors
reflect concepts that are well-founded in conservation biology and that
individually and collectively provide strong indicators of extinction
risk (NMFS 2015).
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 response to our request for comments on the proposed rule, we
received comments from eight parties. All commenters presented general

[[Page 72546]]

information on threats or provided data that were already cited,
discussed, and considered in the draft status review reports (Dennis
2015; Salz 2015) or the proposed rule (80 FR 57314; September 23,
2015). Summaries of the substantive public comments received, and our
responses, are provided below, with references to our prior documents
where relevant.
Comment 1: One commenter noted that WildEarth Guardians had
submitted the petition to list these two grouper species and wondered
at what level we involved WildEarth Guardians or other organizations in
the process of making the assessment.
Response: WildEarth Guardians did not have any role in evaluating
the status of the two grouper species under the ESA beyond providing us
with the information in its petition.
Comment 2: Most commenters expressed support for the proposed rule,
though several recommended we consider economic and social impacts on
the tourism and fishing industries when determining what is restricted
and prohibited or when developing recovery plans. One of these
commenters noted that U.S. fishing companies will suffer if the gulf
grouper is listed as endangered under the ESA because Mexico will not
have regulations and laws for bycatch prevention devices and Mexican
fishers do not have to abide by the ESA. And another commenter
suggested allowing small amounts of sustainable yield to support those
industries dependent on these two groupers.
Response: The ESA requires us to base our listing determinations
solely on the best available scientific and commercial information. We
may not consider economic or social impacts in making these
determinations. When a species is listed as endangered, the ESA section
9 prohibitions are automatically extended to that species. The gulf
grouper is listed as endangered, and therefore, it is a violation for
anybody subject to U.S. jurisdiction to harvest this species in U.S.
waters or on the high seas.
Therefore, we cannot authorize even small amounts of harvest of
this species to support the fishing industry. However, when a species
is listed as threatened, section 9 prohibitions are not automatically
extended to that species. In this case, we have not extended any
section 9 prohibitions to the threatened island grouper, so there is no
prohibition against harvesting them. However, any Federal agency that
funds, authorizes, or carries out an action that may affect an ESA
listed species must consult with us under section 7 of the ESA to
ensure that the action is not likely to jeopardize the continued
existence of any species listed under the ESA.
Comment 3: One commenter asserted that Mexico has an 8,000 km\2\
area where gill nets are illegal, but more efforts are needed to
protect the two grouper species.
Response: Although we have no authority with respect to how other
countries manage species within their territories, we encourage Spain,
Portugal, and Mexico to provide for the conservation of these species
that are found in their waters.
Comment 4: One commenter stated that he understood the need to
protect these grouper species, but he asserted that ESA protection will
not have the protective effect NMFS is seeking, especially for the gulf
grouper. This commenter noted that the gulf grouper has limited
habitat, the habitat is threatened by dams, and ESA listing will not
help. The commenter suggested that NMFS consider public outreach to
bring attention to the many problems dams cause.
Response: While it is true that fewer protections apply under the
ESA for foreign species, important protections do apply. All persons
subject to the jurisdiction of the United States (including its
citizens) must comply with section 9 of the ESA, which, among other
things, makes it unlawful to import endangered species into the United
States or to export them from the United States, or to ``take''
endangered species within the territorial sea of the United States or
upon the high seas (16 U.S.C. 1538(a)(1)(A)-(C)). Also, any Federal
agency that funds, authorizes, or carries out an action that may affect
an ESA listed species must consult with us under section 7 of the ESA
to ensure that the action is not likely to jeopardize the continued
existence of any species listed under the ESA. In addition, listing
provides important educational benefits by informing the public about
the plight of these species and promotes conservation actions by
Federal and State agencies, foreign entities, private groups, and
individuals.
Comment 5: One commenter wondered why NMFS was listing the island
grouper, which is a foreign species. The commenter noted that ESA
listing would have no legal impact, and it would be better to impose a
[gteqt]700mm size limit for these two grouper species.
Response: Section 4 of the ESA requires that we list any species
that we determine to be endangered or threatened, whether it occurs
within the United States or elsewhere. Demonstrating a need to secure
particular protections under the other sections of the ESA, or that
such protections will be afforded where the species is found, is not a
precondition to listing. As we noted in our response to Comment 3,
although we have no authority with respect to how other countries
manage species within their territories, we encourage Spain, Portugal,
and Mexico to provide for the conservation of these species that are
found in their waters. Please see our response to Comment 4 for a
summary of protections that will apply to the endangered gulf grouper
and threatened island grouper.
Comment 6: One commenter stated that it would be helpful if other
countries would realize that the imminent threats of tidal power,
desalination, commercial fishing, and waste runoff are big factors in
the degradation and loss of habitat for these grouper species and that
they would follow through to begin addressing these issues and help
bring these groupers back to viable numbers.
Response: Again, although we have no authority with respect to how
other countries manage species within their territories, we encourage
Spain, Portugal, and Mexico to provide for the conservation of these
species that are found in their waters.
Comment 7: One commenter suggested a campaign to increase
recreational scuba diving aimed at hunting lionfish for sport, feeding
them to the gulf grouper, and serving them at restaurants as an
effective tool for conserving gulf grouper (and lionfish eradication),
as this has been successful in helping eradicate lionfish in the
Caribbean.
Response: We appreciate the commenter's suggestion, but this is
beyond the scope of our final rule.

Summary of Changes From the Proposed Listing Rule

We did not receive, nor did we find, scientific data from
references that were not previously included in the draft status review
reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314;
September 23, 2015). We incorporate, as appropriate, relevant
information received as communications during the public comment
process.
However, this information does not present significant new findings
that change any of our proposed listing determinations.

Status Review

Status reviews for the gulf grouper and the island grouper were
conducted by NMFS OPR staff and an in-house contractor. In order to
complete the

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status reviews, we compiled information on the species' biology,
ecology, life history, threats, and conservation status from
information contained in the petition, our files, a comprehensive
literature search, and consultation with experts. Prior to publication
of the proposed rule, the status review reports were subjected to peer
review. Peer reviewer comments are available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.
The status review reports provide a thorough discussion of the life
history, demographic risks, and threats to the two grouper species. We
considered all identified threats, both individually and cumulatively,
to determine whether these grouper species respond in a way that causes
actual impacts at the species level. The collective condition of
individual populations was also considered at the species level,
according to the four viable population descriptors discussed above.
The proposed rule (80 FR 57314; September 23, 2015) summarizes
general background information on the description, reproductive biology
and spawning behavior, population structure, distribution, abundance,
and habitat of the gulf grouper and island grouper. All of that
information is incorporated herein.

Species Determinations

Based on the best available scientific and commercial information
described or referenced above, and included in the status review
reports, and as stated in the proposed rule (80 FR 57314; September 23,
2015), we have determined that the gulf grouper (Mycteroperca jordani)
and the island grouper (Mycteroperca fusca) are taxonomically-distinct
species and therefore meet the definition of ``species'' pursuant to
section 3 of the ESA and are eligible for listing under the ESA.

Summary of Factors Affecting the Two Species

Next we consider whether any one or a combination of the five
threat factors specified in section 4(a)(1) of the ESA contribute to
the extinction risk of these species. The comments that we received on
the proposed rule did not change our conclusions regarding any of the
section 4(a)(1) factors or their interactions for these species. In
fact, the comments lend further support to our conclusion that the
threats of overutilization and inadequacy of existing regulatory
mechanisms are contributing significantly to the risk of extinction for
both Mycteroperca species. Therefore, we incorporate herein all
information, discussion, and conclusions on the summary of factors
affecting the two grouper species in the status review reports (Dennis
2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

Extinction Risk

None of the comments we received from public comment on the
proposed rule affected our extinction risk evaluations of these two
grouper species. Our evaluations and conclusions regarding extinction
risk for these species remain the same. Therefore, we incorporate
herein all information, discussion, and conclusions on the extinction
risk of the two grouper species in the status review reports (Dennis
2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

Protective Efforts

Finally, we considered conservation efforts to protect both species
and evaluated whether these conservation efforts are adequate to
mitigate the existing threats to the point where extinction risk is
significantly lowered and the species' status is improved. None of the
information we received from public comment on the proposed rule
affected our conclusions regarding conservation efforts to protect the
two grouper species. We incorporate herein all information, discussion,
and conclusions on the protective efforts for the two grouper species
in the status review reports (Dennis 2015; Salz 2015) and proposed rule
(80 FR 57314; September 23, 2015).

Final Determinations

We have reviewed the best available scientific and commercial
information, including the petition, the information in the status
review reports (Dennis 2015; Salz 2015), the comments of peer
reviewers, and public comments. Following are summaries of our listing
determinations for these two species.

Gulf Grouper

Based on the best available scientific and commercial information,
as summarized here, in our proposed rule (80 FR 57314; September 23,
2015), and in Dennis (2015), and consideration of protective efforts
being made to protect the species, we find that the gulf grouper
(Mycteroperca jordani) is at a high risk of extinction. The gulf
grouper was once considered abundant, and now it is rare (Jenkins and
Evermann 1889, Croker 1937, and S[aacute]enz-Arroyo et al. 2005a).
Direct harvest is the major reason for gulf grouper decline (Sala et
al. 2004, S[aacute]enz-Arroyo et al. 2005a, Aburto-Oropeza et al. 2008)
and, due to the lack of protective regulations in Mexico (no meaningful
quotas nor protective regulations for gulf grouper), there is no reason
to expect fishing to be a diminishing threat.
Moreover, gulf grouper are intrinsically vulnerable to overfishing
due to life history traits, including large size, late onset of
reproductive maturity, protogynous hermaphrodite life history,
transient aggregate spawning, slow growth rate, long life-span, and
restricted geographic range (Sadovy de Mitcheson et al. 2012). Based on
the best available information, we find that the gulf grouper is in
danger of extinction throughout its range. After considering efforts
being made to protect this species, we could not conclude that the
existing or proposed conservation efforts would alter its extinction
risk. We therefore list it as endangered under the ESA.

Island Grouper

Based on the best available scientific and commercial information,
as summarized here, in our proposed rule (80 FR 57314; September 23,
2015), and in Salz (2015), and consideration of protective efforts
being made to protect the species, we find that the island grouper
(Mycteroperca fusca) is at a moderate risk of extinction. The nature of
the threats and demographic risks identified, taking into account the
uncertainty associated with the threats and risks, does not demonstrate
the species is presently in danger of extinction; and therefore, it
does not meet the definition of an endangered species.
However, the current threats to island grouper from fishing
overutilization and inadequate regulatory mechanisms are likely to
continue in the future, further exacerbating the demographic risk
factors associated with abundance, growth rate and productivity, and
spatial structure and connectivity. We conclude that both the species'
current risk of extinction and the best available information on the
extent of, and trends in, the major threats affecting this species make
it likely this species will become an endangered species within the
foreseeable future (defined as 40 years, as explained in the proposed
rule (80 FR 57314; September 23, 2015)) throughout its range. We
therefore list it as threatened under the ESA.

Effects of Listing

Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery actions (16 U.S.C. 1533(f));

[[Page 72548]]

Federal agency requirements to consult with NMFS under section 7 of the
ESA to ensure their actions do not jeopardize the species or result in
adverse modification or destruction of critical habitat should it be
designated (16 U.S.C. 1536); designation of critical habitat if prudent
and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking
(16 U.S.C. 1538). In addition, recognition of the species' plight
through listing promotes conservation actions by Federal and State
agencies, foreign entities, private groups, and individuals. Because
the ranges of these two species are entirely outside U.S. jurisdiction,
the main effects of this final rule are the prohibitions on take,
including export and import, of the endangered gulf grouper.

Identifying Section 7 Consultation Requirements

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS
regulations require Federal agencies to consult with us to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of listed species or destroy or
adversely modify critical habitat. It is unlikely that the listing of
these species under the ESA will increase the number of section 7
consultations, because these species occur entirely outside of the
United States and are unlikely to be affected by Federal actions.
Although the gulf grouper's historical range includes parts of Southern
California, there are no recent records indicating that this species
still exists in U.S. waters.

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 upon a determination that such areas are essential for the
conservation of the species. Our regulations at 50 CFR 424.12(b)
specify that the Secretary will identify, at a scale determined by the
Secretary to be appropriate, specific areas outside the geographical
area occupied by the species that are essential for its conservation,
considering the life history, status, and conservation needs of the
species based on the best available scientific data. 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 shall notbe
designated in foreign countries or other areas outside U.S.
jurisdiction (50 CFR 424.12(g)).
The best available scientific and commercial information as
discussed above, the status review reports (Dennis 2015; Salz 2015),
and the proposed rule (80 FR 57314; September 23, 2015) does not
indicate that U.S. waters provide any specific essential biological or
physical function for the gulf grouper. U.S. waters account for a very
small portion on the northern limit of the gulf grouper's historical
range, and may no longer be part of the species' current range. Based
on the best available information, we have not identified unoccupied
areas in U.S. waters that are currently essential to the conservation
of gulf grouper. Therefore, based on the available information, we do
not intend to designate critical habitat for the gulf grouper.
The island grouper occurs entirely outside of the United States.
Therefore, we cannot designate critical habitat for island grouper.

Identification of Those Activities That Would Likely Constitute a
Violation of Section 9 of the ESA

On July 1, 1994, NMFS and FWS 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 likely
constitute a violation of section 9 of the ESA. Because we are listing
Mycteroperca jordani as endangered, all of the prohibitions of section
9(a)(1) of the ESA will apply to this species. These include
prohibitions against the import, export, interstate or foreign trade
(including delivery, receipt, carriage, shipment, transport, sale and
offering for sale), and ``take'' of these species. These prohibitions
apply to all persons subject to the jurisdiction of the United States,
including in the United States, its territorial sea, or on the high
seas. 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.'' The intent of this policy is to increase public awareness of
the effects of this listing on proposed and ongoing activities within
the species' ranges. Activities that we believe could (subject to the
exemptions set forth in 16 U.S.C. 1539) result in a violation of
section 9 prohibitions for the endangered gulf grouper include, but are
not limited to, the following:
(1) Possessing, delivering, transporting, or shipping any
individual or part (dead or alive) taken in violation of section
9(a)(1);
(2) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any individual or part, in the course of
a commercial activity;
(3) Selling or offering for sale in interstate or foreign commerce
any individual or part, except antique articles at least 100 years old;
and
(4) Importing or exporting gulf grouper or any part of this
species.
We emphasize that whether a particular activity constitutes a
violation is entirely dependent upon the facts and circumstances of
each incident. Further, an activity not listed above 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 M. jordani: (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 parts that
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).
Section 11(f) of the ESA gives NMFS authority to promulgate
regulations that may be appropriate to enforce the ESA. We may
promulgate future regulations to regulate trade or holding of gulf
grouper, if necessary. We will provide the public with the opportunity
to comment on future proposed regulations.

Protective Regulations Under Section 4(d) of the ESA

We are listing the island grouper as a threatened species. In the
case of threatened species, ESA section 4(d) leaves it to the
Secretary's discretion whether, and to what extent, to extend the
section 9(a) ``take'' prohibitions to

[[Page 72549]]

the species, and authorizes us to issue regulations necessary and
advisable for the conservation of the species. Thus, we have
flexibility under section 4(d) to tailor protective regulations, taking
into account the effectiveness of available conservation measures. The
4(d) protective regulations may prohibit, with respect to threatened
species, some or all of the acts which section 9(a) of the ESA
prohibits with respect to endangered species. These 9(a) prohibitions
apply to all individuals, organizations, and agencies subject to U.S.
jurisdiction.
Because the island grouper occurs entirely outside of the United
States, and is not commercially traded with the United States,
extending the section 9(a) ``take'' prohibitions to this species will
not result in added conservation benefits or species protection.
Therefore, we do not intend to issue section 4(d) regulations for the
island grouper.

References

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

Classification

National Environmental Policy Act

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th Cir.
1981), NMFS has concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA).

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

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

Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.

Dated: October 11, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 224
are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).

0
2. In Sec. 223.102, in the table in paragraph (e), add an entry for
``Grouper, island'' under Fishes in alphabetical order by common name
to read as follows:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *
(e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species\1\
-------------------------------------------------------------------------------------------- Citation(s) for listing Critical
Description of listed determination(s) habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Grouper, island....................... Mycteroperca fusca....... Entire species.......... [Insert Federal Register NA NA
page where the document
begins], October 20,
2016.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. 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
4. In Sec. 224.101, in the table in paragraph (h), add an entry for
``Grouper, gulf'' under Fishes in alphabetical order by common name to
read as follows:

Sec. 224.101 Enumeration of endangered marine and anadromous species.

* * * * *
(h) * * *

[[Page 72550]]

* * * * * * *
Grouper, gulf......................... Mycteroperca jordani..... Entire species.......... [Insert Federal Register NA NA
page where the document
begins], October 20,
2016.

[FR Doc. 2016-25420 Filed 10-19-16; 8:45 am]
BILLING CODE 3510-22-P

Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 / Rules and Regulations 72545

DEPARTMENT OF COMMERCE November 19, 2013; 79 FR 9880, five threat factors: The present or
February 21, 2014; and 79 FR 10104, threatened destruction, modification, or
National Oceanic and Atmospheric February 24, 2014). On September 23, curtailment of its habitat or range;
Administration 50 CFR Parts 223 and 2015, we published a proposed rule to overutilization for commercial,
224 list the gulf grouper (Mycteroperca recreational, scientific, or educational
jordani) as an endangered species and purposes; disease or predation; the
[Docket No. 150527481–6928–02]
the island grouper (Mycteroperca fusca) inadequacy of existing regulatory
RIN 0648–XD971 as a threatened species (80 FR 57314). mechanisms; or other natural or
We requested public comment on the manmade factors affecting its continued
Endangered and Threatened Wildlife information in the draft status review
and Plants: Final Rule To List the existence. We are also required to make
and proposed rule, and the comment
Island Grouper (Mycteroperca fusca) listing determinations based solely on
period was open through November 23,
as Threatened and the Gulf Grouper 2015. This final rule provides a the best scientific and commercial data
(Mycteroperca jordani) as Endangered discussion of the information we available, after conducting a review of
Under the Endangered Species Act received during the public comment the species’ status and after taking into
period and our final determinations on account efforts being made by any State
AGENCY: National Marine Fisheries or foreign nation to protect the species.
the petition to list the gulf grouper and
Service (NMFS), National Oceanic and
island grouper under the ESA. The In making a listing determination, we
Atmospheric Administration (NOAA), status of the findings and relevant
Commerce. first determine whether a petitioned
Federal Register notices for the other 22 species meets the ESA definition of a
ACTION: Final rule. species and 3 subpopulations can be ‘‘species.’’ Next, using the best available
found on our Web site at http:// information gathered during the status
SUMMARY: We, NMFS, issue a final rule
www.nmfs.noaa.gov/pr/species/ review for the species, we complete a
to list two foreign grouper species under
petition81.htm. status and extinction risk assessment. In
the Endangered Species Act (ESA). We
considered comments submitted on the Listing Species Under the Endangered assessing extinction risk for these two
proposed listing rule and have Species Act grouper species, we considered the
determined that the gulf grouper We are responsible for determining demographic viability factors developed
(Mycteroperca jordani) and the island whether species are threatened or by McElhany et al. (2000). The approach
grouper (Mycteroperca fusca) warrant endangered under the ESA (16 U.S.C. of considering demographic risk factors
listing as endangered and threatened 1531 et seq.). To make this to help frame the consideration of
species, respectively. We will not determination, we first consider extinction risk has been used in many
designate critical habitat for either of whether a group of organisms of our status reviews, including for
these species because the geographical constitutes a ‘‘species’’ under the ESA, Pacific salmonids, Pacific hake, walleye
areas occupied by these species are then whether the status of the species pollock, Pacific cod, Puget Sound
entirely outside U.S. jurisdiction, and qualifies it for listing as either rockfishes, Pacific herring, scalloped
we have not identified any unoccupied threatened or endangered. Section 3 of hammerhead sharks, and black abalone
areas within U.S. jurisdiction that are the ESA defines a ‘‘species’’ to include (see http://www.nmfs.noaa.gov/pr/
currently essential to the conservation ‘‘any subspecies of fish or wildlife or species/ for links to these reviews). In
of either of these species. plants, and any distinct population this approach, the collective condition
DATES: This final rule is effective segment of any species of vertebrate fish of individual populations is considered
November 21, 2016. or wildlife which interbreeds when at the species level according to four
ADDRESSES: Chief, Endangered Species mature.’’
Section 3 of the ESA defines an viable population descriptors:
Division, NMFS Office of Protected Abundance, growth rate/productivity,
Resources (F/PR3), 1315 East West endangered species as ‘‘any species
which is in danger of extinction spatial structure/connectivity, and
Highway, Silver Spring, MD 20910. diversity. These viable population
throughout all or a significant portion of
FOR FURTHER INFORMATION CONTACT: descriptors reflect concepts that are
its range’’ and a threatened species as
Marta Nammack, NMFS, Office of one ‘‘which is likely to become an well-founded in conservation biology
Protected Resources (OPR), (301) 427– endangered species within the and that individually and collectively
8469. foreseeable future throughout all or a provide strong indicators of extinction
SUPPLEMENTARY INFORMATION: significant portion of its range.’’ We risk (NMFS 2015).
interpret an endangered species to be We then assess efforts being made to
Background
one that is presently in danger of protect the species to determine if these
On July 15, 2013, we received a extinction. A threatened species, on the conservation efforts are adequate to
petition from WildEarth Guardians to other hand, is not presently in danger of mitigate the existing threats. Section
list 81 marine species or subpopulations extinction, but is likely to become so in 4(b)(1)(A) of the ESA requires the
as threatened or endangered under the the foreseeable future (that is, at a later Secretary, when making a listing
ESA. This petition included species time). In other words, the primary
determination for a species, to take into
from many different taxonomic groups, statutory difference between a
and we prepared our 90-day findings in consideration those efforts, if any, being
threatened and endangered species is
made by any State or foreign nation to
asabaliauskas on DSK3SPTVN1PROD with RULES

batches by taxonomic group. We found the timing of when a species may be in
that the petitioned actions may be protect the species.
danger of extinction, either presently
warranted for 24 of the species and 3 of (endangered) or in the foreseeable future Summary of Comments
the subpopulations and announced the (threatened).
initiation of status reviews for each of Section 4(a)(1) of the ESA requires us In response to our request for
the 24 species and 3 subpopulations (78 to determine whether any species is comments on the proposed rule, we
FR 63941, October 25, 2013; 78 FR endangered or threatened due to any received comments from eight parties.
66675, November 6, 2013; 78 FR 69376, one or a combination of the following All commenters presented general

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72548 Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 / Rules and Regulations

Federal agency requirements to consult Section 4(a)(3)(A) of the ESA (16 U.S.C. grouper include, but are not limited to,
with NMFS under section 7 of the ESA 1533(a)(3)(A)) requires that, to the the following:
to ensure their actions do not jeopardize extent prudent and determinable, (1) Possessing, delivering,
the species or result in adverse critical habitat be designated transporting, or shipping any individual
modification or destruction of critical concurrently with the listing of a or part (dead or alive) taken in violation
habitat should it be designated (16 species. However, critical habitat shall of section 9(a)(1);
U.S.C. 1536); designation of critical notbe designated in foreign countries or (2) Delivering, receiving, carrying,
habitat if prudent and determinable (16 other areas outside U.S. jurisdiction (50 transporting, or shipping in interstate or
U.S.C. 1533(a)(3)(A)); and prohibitions CFR 424.12(g)). foreign commerce any individual or
on taking (16 U.S.C. 1538). In addition, The best available scientific and part, in the course of a commercial
recognition of the species’ plight commercial information as discussed activity;
through listing promotes conservation above, the status review reports (Dennis (3) Selling or offering for sale in
actions by Federal and State agencies, 2015; Salz 2015), and the proposed rule interstate or foreign commerce any
foreign entities, private groups, and (80 FR 57314; September 23, 2015) does individual or part, except antique
individuals. Because the ranges of these not indicate that U.S. waters provide articles at least 100 years old; and
two species are entirely outside U.S. any specific essential biological or (4) Importing or exporting gulf
jurisdiction, the main effects of this physical function for the gulf grouper. grouper or any part of this species.
final rule are the prohibitions on take, We emphasize that whether a
U.S. waters account for a very small
including export and import, of the particular activity constitutes a violation
portion on the northern limit of the gulf
endangered gulf grouper. is entirely dependent upon the facts and
grouper’s historical range, and may no
circumstances of each incident. Further,
Identifying Section 7 Consultation longer be part of the species’ current
an activity not listed above may in fact
Requirements range. Based on the best available
constitute a violation.
information, we have not identified
Section 7(a)(2) (16 U.S.C. 1536(a)(2))
unoccupied areas in U.S. waters that are Identification of Those Activities That
of the ESA and NMFS/USFWS
currently essential to the conservation Would Not Likely Constitute a Violation
regulations require Federal agencies to
of gulf grouper. Therefore, based on the of Section 9 of the ESA
consult with us to ensure that activities
available information, we do not intend Although the determination of
they authorize, fund, or carry out are not
to designate critical habitat for the gulf whether any given activity constitutes a
likely to jeopardize the continued
existence of listed species or destroy or grouper. violation is fact dependent, we consider
adversely modify critical habitat. It is The island grouper occurs entirely the following actions, depending on the
unlikely that the listing of these species outside of the United States. Therefore, circumstances, as being unlikely to
under the ESA will increase the number we cannot designate critical habitat for violate the prohibitions in ESA section
of section 7 consultations, because these island grouper. 9 with regard to M. jordani: (1) Take
species occur entirely outside of the Identification of Those Activities That authorized by, and carried out in
United States and are unlikely to be Would Likely Constitute a Violation of accordance with the terms and
affected by Federal actions. Although Section 9 of the ESA conditions of, an ESA section
the gulf grouper’s historical range 10(a)(1)(A) permit issued by NMFS for
includes parts of Southern California, On July 1, 1994, NMFS and FWS purposes of scientific research or the
there are no recent records indicating published a policy (59 FR 34272) that enhancement of the propagation or
that this species still exists in U.S. requires us to identify, to the maximum survival of the species; and (2)
waters. extent practicable at the time a species continued possession of parts that were
is listed, those activities that would or in possession at the time of listing. Such
Critical Habitat would not likely constitute a violation parts may be non-commercially
Critical habitat is defined in section 3 of section 9 of the ESA. Because we are exported or imported; however the
of the ESA (16 U.S.C. 1532(5)) as: (1) listing Mycteroperca jordani as importer or exporter must be able to
The specific areas within the endangered, all of the prohibitions of provide evidence to show that the parts
geographical area occupied by a species, section 9(a)(1) of the ESA will apply to meet the criteria of ESA section 9(b)(1)
at the time it is listed in accordance this species. These include prohibitions (i.e., held in a controlled environment at
with the ESA, on which are found those against the import, export, interstate or the time of listing, in a non-commercial
physical or biological features (a) foreign trade (including delivery, activity).
essential to the conservation of the receipt, carriage, shipment, transport, Section 11(f) of the ESA gives NMFS
species and (b) that may require special sale and offering for sale), and ‘‘take’’ of authority to promulgate regulations that
management considerations or these species. These prohibitions apply may be appropriate to enforce the ESA.
protection; and (2) specific areas outside to all persons subject to the jurisdiction We may promulgate future regulations
the geographical area occupied by a of the United States, including in the to regulate trade or holding of gulf
species at the time it is listed upon a United States, its territorial sea, or on grouper, if necessary. We will provide
determination that such areas are the high seas. Take is defined as ‘‘to the public with the opportunity to
essential for the conservation of the harass, harm, pursue, hunt, shoot, comment on future proposed
species. Our regulations at 50 CFR wound, kill, trap, capture, or collect, or regulations.
424.12(b) specify that the Secretary will to attempt to engage in any such
asabaliauskas on DSK3SPTVN1PROD with RULES

identify, at a scale determined by the conduct.’’ The intent of this policy is to Protective Regulations Under Section
Secretary to be appropriate, specific increase public awareness of the effects 4(d) of the ESA
areas outside the geographical area of this listing on proposed and ongoing We are listing the island grouper as a
occupied by the species that are activities within the species’ ranges. threatened species. In the case of
essential for its conservation, Activities that we believe could (subject threatened species, ESA section 4(d)
considering the life history, status, and to the exemptions set forth in 16 U.S.C. leaves it to the Secretary’s discretion
conservation needs of the species based 1539) result in a violation of section 9 whether, and to what extent, to extend
on the best available scientific data. prohibitions for the endangered gulf the section 9(a) ‘‘take’’ prohibitions to

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Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 / Rules and Regulations 72549

the species, and authorizes us to issue information that may be considered List of Subjects in 50 CFR Part 224
regulations necessary and advisable for when assessing species for listing. Based
Administrative practice and
the conservation of the species. Thus, on this limitation of criteria for a listing procedure, Endangered and threatened
we have flexibility under section 4(d) to decision and the opinion in Pacific species, Exports, Imports, Reporting and
tailor protective regulations, taking into Legal Foundation v. Andrus, 675 F.2d recordkeeping requirements,
account the effectiveness of available 825 (6th Cir. 1981), NMFS has Transportation.
conservation measures. The 4(d) concluded that ESA listing actions are
protective regulations may prohibit, not subject to the environmental Dated: October 11, 2016.
with respect to threatened species, some assessment requirements of the National Samuel D. Rauch, III,
or all of the acts which section 9(a) of Environmental Policy Act (NEPA). Deputy Assistant Administrator for
the ESA prohibits with respect to Regulatory Programs, National Marine
endangered species. These 9(a) Executive Order 12866, Regulatory Fisheries Service.
prohibitions apply to all individuals, Flexibility Act, and Paperwork For the reasons set out in the
organizations, and agencies subject to Reduction Act preamble, 50 CFR parts 223 and 224 are
U.S. jurisdiction. amended as follows:
Because the island grouper occurs As noted in the Conference Report on
entirely outside of the United States, the 1982 amendments to the ESA, PART 223—THREATENED MARINE
and is not commercially traded with the economic impacts cannot be considered AND ANADROMOUS SPECIES
United States, extending the section 9(a) when assessing the status of a species.
‘‘take’’ prohibitions to this species will Therefore, this final rule is exempt from ■ 1. The authority citation for part 223
not result in added conservation review under Executive Order 12866 continues to read as follows:
benefits or species protection. and the economic analysis requirements
Authority: 16 U.S.C. 1531 1543; subpart B,
Therefore, we do not intend to issue of the Regulatory Flexibility Act are not § 223.201–202 also issued under 16 U.S.C.
section 4(d) regulations for the island applicable to the listing process. This 1361 et seq.; 16 U.S.C. 5503(d) for
grouper. final rule does not contain a collection- § 223.206(d)(9).
of-information requirement for the
References purposes of the Paperwork Reduction ■ 2. In § 223.102, in the table in
A complete list of the references used Act. paragraph (e), add an entry for
in this final rule is available upon ‘‘Grouper, island’’ under Fishes in
request (see ADDRESSES). Executive Order 13132, Federalism alphabetical order by common name to
read as follows:
Classification In accordance with E.O. 13132, we
determined that this final rule does not § 223.102 Enumeration of threatened
National Environmental Policy Act have significant Federalism effects and marine and anadromous species.
The 1982 amendments to the ESA, in that a Federalism assessment is not * * * * *
section 4(b)(1)(A), restrict the required. (e) * * *

Species1
Citation(s) for listing determination(s) Critical habitat ESA rules
Description of listed
Common name Scientific name entity

Fishes

* * * * * * *
Grouper, island ........ Mycteroperca fusca Entire species ......... [Insert Federal Register page where the NA NA
document begins], October 20, 2016.

* * * * * * *
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).

PART 224—ENDANGERED MARINE ■ 4. In § 224.101, in the table in § 224.101 Enumeration of endangered
AND ANADROMOUS SPECIES paragraph (h), add an entry for marine and anadromous species.
‘‘Grouper, gulf’’ under Fishes in * * * * *
■ 3. The authority citation for part 224 alphabetical order by common name to
continues to read as follows: (h) * * *
read as follows:
Authority: 16 U.S.C. 1531–1543 and 16
U.S.C. 1361 et seq.
asabaliauskas on DSK3SPTVN1PROD with RULES

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$72550 Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 / Rules and Regulations Species1 Citation(s) for listing determination(s) Critical habitat ESA rules Description of listed Common name Scientific name entity Fishes * * * * * * * Grouper, gulf ........... Mycteroperca Entire species ......... [Insert Federal Register page where the NA NA jordani. document begins], October 20, 2016. * * * * * * * 1 Speciesincludes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). [FR Doc. 2016–25420 Filed 10–19–16; 8:45 am] BILLING CODE 3510–22–P asabaliauskas on DSK3SPTVN1PROD with RULES VerDate Sep<11>2014 17:18 Oct 19, 2016 Jkt 241001 PO 00000 Frm 00070 Fmt 4700 Sfmt 9990 E:\FR\FM\20OCR1.SGM 20OCR1$

Document Created: 2016-10-21 09:59:02
Document Modified: 2016-10-21 09:59:02

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective November 21, 2016.
Contact		Marta Nammack, NMFS, Office of Protected Resources (OPR), (301) 427-8469.
FR Citation		81 FR 72545
RIN Number		0648-XD97
CFR Citation		50 CFR 223 50 CFR 224

81 FR 72545 - Endangered and Threatened Wildlife and Plants: Final Rule To List the Island Grouper (Mycteroperca fusca) as Threatened and the Gulf Grouper (Mycteroperca jordani) as Endangered Under the Endangered Species Act

DEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224

Federal Register Volume 81, Issue 203 (October 20, 2016)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224