Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 43701 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 20, 

2017. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: September 7, 2017. 

Deborah A. Szaro, 

Acting Regional Administrator, EPA New 

England. 

Part 52 of chapter I, title 40 of the 

Code of Federal Regulations is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart U—Maine 

■ 2. In § 52.1020, the table in paragraph 

(e) is amended by adding the entry 

‘‘Regional Haze 5-Year Progress Report’’ 

at the end of the table to read as follows: 

§ 52.1020 Identification of plan. 

* * * * * 

(e) * * * 

MAINE NON REGULATORY

Name of non regulatory SIP 

provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date/effective 

date 

EPA approved date 3 Explanations 

*******

Regional Haze 5-Year Progress Report.Statewide ............ 2/23/2016 9/19/2017, [insert Federal Register citation].Progress report for the first regional haze planning period 

ending in 2018. 

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision. 

[FR Doc. 2017–19817 Filed 9–18–17; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 160614520–7805–02] 

RIN 0648–XE686 

Endangered and Threatened Wildlife 

and Plants: Final Rule To List the Maui 

Dolphin as Endangered and the South 

Island Hector’s Dolphin as Threatened 

Under the Endangered Species Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, NMFS, issue a final rule 

to list the Maui dolphin 

(Cephalorhynchus hectori maui) as 

endangered and the South Island (SI) 

Hector’s dolphin (C. hectori hectori) as 

threatened under the Endangered 

Species Act (ESA). We considered 

comments submitted on the proposed 

listing rule and have determined that 

the Maui dolphin and the SI Hector’s 

dolphin warrant listing as endangered 

and threatened species, respectively. We 

will not designate critical habitat for 

either of these dolphin 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 either of 

these subspecies. 

DATES: This final rule is effective 

October 19, 2017. 

ADDRESSES: Endangered Species 

Division, NMFS Office of Protected 

Resources (F/PR3), 1315 East West 

Highway, Silver Spring, MD 20910. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Manning, NMFS, Office of Protected 

Resources, lisa.manning@noaa.gov, 

(301) 427–8466. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 15, 2013, we received a 

petition from WildEarth Guardians to 

list 81 marine species or populations as 

endangered or threatened species under 

the ESA. We determined that the 

petition had sufficient merit for further 

consideration, and status reviews were 

initiated for 27 of the 81 species or 

populations, including the Hector’s 

dolphin (Cephalorhynchus hectori; 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 19, 

2016, we published a proposed rule to 

list the Maui dolphin (Cephalorhynchus 

hectori maui) as endangered and the SI 

Hector’s dolphin (C. hectori hectori) as 

threatened (81 FR 64110). We requested 


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43702 Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 

public comments on the information in 

the proposed rule and the associated 

status review during a 60-day public 

comment period, which closed on 

November 18, 2016. This final rule 

provides a discussion of the public 

comments received in response to the 

proposed rule and our final 

determinations on the petition to list the 

Maui dolphin and the SI Hector’s 

dolphin under the ESA. The findings 

and relevant Federal Register notices 

for the other species and populations 

addressed in the petition can be found 

on our Web site at www.nmfs.noaa.gov/ 

pr/species/petition81.htm. 

Listing Determinations 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 Maui dolphin, C. hectori 

maui, and the SI Hector’s dolphin, C. 

hectori hectori, are formally recognized 

subspecies (Baker et al., 2002, Pichler 

2002) and thus meet 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). 

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 

regarding the species’ response to that 

threat, 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 

account efforts being made by any state 

or foreign nation to protect the species. 

In assessing the extinction risk of 

these two subspecies, 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 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 (or in 

this case, the subspecies 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 

Maui dolphin and the SI Hector’s 

dolphin under present conditions and 

in the foreseeable future are based on 

our evaluation of the subspecies’ 

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 each subspecies. 

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 75 comments. The comments 

were submitted by multiple 

organizations and individual members 

of the public from a minimum of seven 

countries (Australia, Bahamas, Canada, 

England, Ireland, New Zealand, and the 

United States). All of the comments 

were supportive of the proposed 

endangered listing for the Maui dolphin. 

Several commenters suggested listing 

the SI Hector’s dolphin as endangered, 

and one comment was opposed to the 

proposed threatened listing for the SI 

Hector’s dolphin. Summaries of 

comments received regarding the 

proposed rule and our responses are 

provided below. 

Comment 1: A large majority of the 

comments were general statements 

expressing support for listing Maui 

dolphins as endangered and SI Hector’s 

dolphins as threatened under the ESA. 

Most of these comments were not 

accompanied by information or 

references. Some of the comments were 

accompanied by information that is 

consistent with, or cited directly from, 

our proposed rule or draft status review 

report. Several of the comments 

included pointed statements regarding 

the inadequacy of current management 

efforts to reduce bycatch of Hector’s 

dolphins. Several other comments were 

associated with a ‘‘Let’s Face It’’ 

campaign to protect Maui dolphins, and 

in one case, a commenter provided a 

link to an online, visual petition from 

‘‘Let’s Face it’’ consisting of photos of 

the over 9,400 people who participated 

in the campaign. The Marine Mammal 

Commission in particular concurred 

with our proposed endangered listing of 

Maui dolphins, and recommended we 

proceed with a final rule listing them as 

such under the ESA. 

Response: We acknowledge all of 

these comments and the considerable 

public interest expressed in support of 


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the conservation of the SI Hector’s and 

Maui dolphins. 

Comment 2: Two scientists from the 

University of Otago, New Zealand, 

submitted an unpublished report 

(referred to here as Slooten and Dawson 

2016) presenting population viability 

analyses (PVAs), estimates of Potential 

Biological Removal (PBR), and projected 

population trends for Maui and SI 

Hector’s dolphins. The report updates 

previously published analyses (e.g., 

Slooten 2007a; Slooten and Dawson 

2010) by incorporating the recent 

abundance estimates reported by Baker 

et al. (2016) for Maui dolphins and by 

Mackenzie and Clement (2014, 2016) for 

SI Hector’s dolphins. These updated 

analyses were conducted to explore how 

the new abundance estimates affect 

previous conclusions about risk and 

population viability. The report also 

reviews the available data on fisheryobserver coverage and available bycatch 

data by location, year, and gear type 

(gillnet, trawl, or craypot). The report 

discusses several limitations of the 

available bycatch data and asserts the 

data provide an under-estimate of the 

actual level of bycatch mortality. 

The commenters’ updated PBR (using 

a recovery factor of 0.1) for Maui 

dolphins ranges from 0.05 to 0.12, 

depending on the assumed per capita 

growth rate (Rmax). Their estimated rate 

of population decline is 2 percent per 

year, with a 95 percent confidence 

interval (CI) that ranges from a 1.6 

percent decline to a 4.8 percent increase 

per year, which the commenters note 

indicates a high level of uncertainty 

regarding the population trend. The 

commenters present a Bayesian linear 

regression analysis that indicates there 

is a 68 percent probability that the Maui 

dolphin population is continuing to 

decline, and their power analysis 

indicates that the ability (statistical 

power) to detect population trends in 

continued population surveys for Maui 

dolphins is very low. 

The updated PBR estimate provided 

by the commenters for the SI Hector’s 

dolphin ranges from 3 to 24 dolphins 

per year, depending on the value of 

Rmax and the offshore range of the 

dolphins applied. Results of the 

updated PVA suggest that the 

abundance of SI Hector’s dolphins has 

declined by 70 percent over the last 

three generations (39 years), and that the 

subspecies will continue to decline to 

8,283 dolphins (95 percent CI: 4,925– 

13,931) by the year 2050. The 

commenters conclude that the new, 

higher abundance estimate for the SI 

Hector’s dolphins is more than offset by 

the increased degree of overlap between 

fishing activities and the more extensive 

offshore distribution of dolphins on the 

east coast of the South Island. 

Response: We thoroughly reviewed 

and considered the analyses and 

information presented in this report. 

In response to the information 

provided in this comment, we updated 

our status review report (Manning and 

Grantz 2017) to include the recent 

abundance estimate for Maui dolphins 

from Baker et al. (2016), who reported 

an abundance estimate of 63 dolphins 1 

year of age and older (95 percent CI: 57– 

75). This new abundance estimate is 

based on a long-term genetic markrecapture study and is within the 95 

percent CI of the previous estimate 

resulting from this work (i.e., 55 

dolphins 1 year of age and older (95 

percent CI: 48–69), Hamner et al., 

2014b). Estimates of the rate of 

population decline provided by the 

commenters are consistent with those 

provided recently by Baker et al. (2016): 

Both sources indicate an annual rate of 

decline of about 2 percent with a high 

degree of uncertainty. The updated PBR 

estimates reported by the commenters 

(i.e., 0.05 (or one dolphin every 20 

years) to 0.12 (or one dolphin every 8.3 

years)) are also similar to those reported 

previously using older abundance 

estimates—e.g., 0.16 (Slooten et al., 

2006a), 0.044–0.10 (Wade et al., 2012). 

Overall, while the commenters’ report 

does provide updated analyses, the 

results presented and the more recent 

population abundance estimate for Maui 

dolphins do not change the outlook for 

this subspecies. The subspecies is at a 

critically low abundance, is still 

considered to have a very low threshold 

for human-caused mortality (i.e., PBR is 

still well below 1.0), and is likely to 

undergo continued decline. Therefore, 

we find that the new abundance 

estimate and revised analyses support, 

and do not alter, our previous 

conclusion that the Maui dolphin meets 

the definition of endangered under the 

ESA. 

As explained by the commenters, 

previous estimates of PBR and 

population viability analyses for the SI 

Hector’s dolphins relied on earlier, 

lower abundance estimates; whereas, 

the analyses prepared by the 

commenters use the latest abundance 

estimate of 14,849 SI Hector’s dolphins 

(95% CI = 11,923–18,492, Mackenzie 

and Clement 2014, 2016). As discussed 

in more detail in the status review 

report (Manning and Gantz 2017), this 

most recent abundance estimate for the 

SI Hector’s dolphin is based on a series 

of aerial, line-transect surveys that were 

conducted around the South Island 

during 2010–2015 (Clement et al., 2011, 

Mackenzie and Clement 2014, 

Mackenzie and Clement 2016). These 

surveys extended farther offshore than 

the previous island surveys (up to 20 

nautical miles offshore versus 4 to 10 

nautical miles), a factor that, to some 

extent, contributed to the larger 

abundance estimate relative to the 

previous estimate. Interestingly, despite 

the much larger population abundance 

estimate for this subspecies, the results 

of the updated analyses for the SI 

Hector’s dolphin provided by the 

commenters do not suggest a 

substantially different outlook for the 

subspecies. 

The commenters provide updated 

PBR estimates for SI Hector’s dolphins 

by region. Unfortunately, however, the 

east coast of the South Island is the only 

region for which bycatch estimates are 

available following implementation of 

management measures in 2008, making 

comparisons of bycatch levels to PBR 

estimates for other regions difficult. The 

updated PBR estimates for the east coast 

population presented by the 

commenters (3–15 dolphins per year) 

are higher than those published 

previously by the commenters (0.57– 

1.28, Slooten and Dawson 2008b); 

however, they are still largely below the 

level of bycatch estimated for the east 

coast using commercial gillnetting 

observer data (23 dolphins, min-max 

range of 4—48, Slooten and Davies 

2012). This information suggests that 

bycatch in commercial gillnets alone 

may be occurring at an unsustainable 

rate in this region. 

The results of the updated PVAs 

provided by the commenters for the SI 

Hector’s dolphins suggest that a large 

historical decline in abundance 

occurred since the 1970’s, similar to the 

finding of previous analyses (e.g., 

Slooten 2007a, Slooten and Dawson 

2010). The updated PVA also predicts 

continued decline by about 44 percent 

by the year 2050 given current fishing 

effort, estimated bycatch, and current 

management measures. It is not clear, 

however, what bycatch estimates were 

applied in this analysis; and, as noted 

by the commenters, there is 

considerable uncertainty regarding the 

level of bycatch across the range of the 

subspecies. This and previous analyses 

have relied on very limited bycatch 

estimates, which are only available for 

a small number of regions and years and 

only for commercial gillnet fisheries. 

These shortcomings have been noted 

previously and cannot be remedied 

until sufficient, reliable bycatch data 

become available. 

Overall, the results of the analyses 

presented by the commenters are 

consistent with our previous 

conclusions that the SI Hector’s dolphin 


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43704 Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 

has experienced large historical declines 

in abundance, is likely experiencing 

unsustainable levels of bycatch, and is 

likely to continue to decline under 

existing management protections. 

Therefore, we conclude the information 

provided in the commenters’ report 

does not alter our finding that the SI 

Hector’s dolphin meets the definition of 

threatened under the ESA. 

Comment 3: Five commenters 

requested that we list the SI Hector’s 

dolphin as endangered under the ESA. 

One of these commenters also urged that 

we enact strict protections immediately 

for SI Hector’s dolphins (and Maui 

dolphins). One of the commenters stated 

that an endangered listing for SI 

Hector’s dolphins was justified because 

this subspecies consists of a network of 

unique, local populations or ‘‘Distinct 

Population Segments’’ that are small, 

declining, and increasingly fragmented. 

Three papers on specific subpopulations 

of SI Hector’s dolphins (i.e., Rayment et 

al., 2009a, Turek et al., 2013, Weir and 

Sagnol 2015) and one study on genetic 

differentiation among populations (i.e., 

Hamner et al., 2012a) were provided to 

demonstrate fragmentation of 

populations. This commenter also stated 

that bycatch levels remain high because 

current fisheries management measures 

cover only a small portion of the SI 

Hector’s dolphin’s habitat and are 

poorly monitored and enforced. A 

report reviewing marine fisheries catch 

data in New Zealand (i.e., Simmons et 

al., 2016) and a link to video footage 

showing the capture of two SI Hector’s 

dolphins were provided to support this 

statement. 

Response: In response to these 

comments, we reviewed the information 

and references provided and considered 

whether the available information 

indicates the SI Hector’s dolphin meets 

the definition of endangered under the 

ESA. 

We agree that SI Hector’s dolphin 

comprises multiple populations, some 

of which have been estimated to be very 

small, and that the population structure, 

in combination with other factors such 

as small home ranges (e.g., Rayment et 

al., 2009a), is contributing to the 

extinction risk for this subspecies. The 

best available data indicate that the SI 

Hector’s subspecies comprises three, 

regional populations that can be 

distinguished geographically and 

genetically—an east coast (ECSI), west 

coast (WCSI), and south coast 

population (SCSI; Pichler 2002, Hamner 

et al., 2012). Additional population 

structuring within these larger 

geographic regions has also been 

indicated in genetic studies (e.g., Te 

W#w# Bay and Toetoe Bay within the 

SCSI, Hamner et al., 2012a). Two 

references cited by the commenter 

present analyses of photo-identification 

data that provide additional evidence of 

small, localized or fragmented 

populations off Otago and Kairkoura on 

the ECSI (Turek et al., 2013, Weir and 

Sagnol 2015). Because we had not cited 

these latter two references previously, 

we have expanded our discussion of 

population structure in the status 

review report (Manning and Grantz 

2017) to incorporate information from 

these two studies. 

The references provided, however, do 

not alter our interpretation of the 

available data regarding population 

structure and its contribution to 

extinction risk for SI Hector’s dolphins. 

As discussed in the status review report 

and proposed rule, the available genetic 

evidence (based on both mitochondrial 

DNA and microsatellites) indicates that 

there are low levels of migration 

between most neighboring local 

populations over distances shorter than 

100 km (Hamner et al., 2012a). While 

strong genetic differentiation has been 

detected among the regional 

populations, very few intra-regional 

comparisons of populations in the ECSI 

and WCSI regions have been significant 

(Pichler 2002; Hamner et al., 2012a). 

Analysis of levels of genetic 

differentiation among sample locations 

within regions suggests there is 

sufficient gene flow to maintain genetic 

diversity within the ECSI and WCSI 

regions; however, the very restricted 

gene flow detected between local 

populations in the SCSI region (i.e., 

beween Te WaeWae and Toetoe Bays) 

does pose a conservation concern 

(Hamner et al., 2012a). Connectivity 

between the small, local populations 

within each region is very important to 

the overall status of this subspecies, and 

additional loss of connectivity would 

increase risks of genetic drift, loss of 

genetic diversity, and extinction. Thus, 

as we concluded in our status review 

(Manning and Grantz 2017), the spatial 

structure and connectivity among SI 

Hector’s populations is posing a 

moderate risk to the subspecies, but this 

factor, either alone or in combination 

with other threats, does not put the 

subspecies at immediate risk of 

extinction (Manning and Grantz 2017). 

Information provided by the commenter 

does not provide new or different 

information regarding the degree of 

population fragmentation, abundance, 

or the rate of decline of any populations. 

Therefore, we find that the information 

provided by the commenter is 

consistent with the analysis presented 

in our status review and does not alter 

our conclusion that the SI Hector’s 

dolphin meets the definition of 

threatened under the ESA. 

We also agree with the comment that 

bycatch of SI Hector’s dolphins 

continues to pose a threat despite 

existing fisheries management efforts. 

As we discuss in our status review, the 

risk of bycatch in commercial and 

recreational trawl and gillnet fisheries 

remains high given the known 

distribution of the dolphins relative to 

areas open to fishing, especially on the 

west and north coasts of the South 

Island (Faustino et al., 2013, Slooten 

2013). The report provided by the 

commenter, which reviewed New 

Zealand marine fisheries catch data 

from 1950–2010 (i.e., Simmons et al., 

2016), indicates a serious degree of 

under-reporting of catch and discards in 

commercial fisheries; however, the 

report documents the under-reporting of 

only a single Hector’s dolphin by one 

fishing vessel. Video footage provided 

by one of the commenters was recorded 

as part of an investigation, called 

Operation Achilles, conducted by the 

New Zealand Ministry for Primary 

Industries’ (MPI) following earlier video 

evidence of dolphin bycatch obtained 

during a pilot electronic monitoring 

program. The footage provided by the 

commenter was made publicly available 

by MPI and shows the capture of two SI 

Hector’s dolphins; and according to the 

associated reports provided by MPI 

(http://mpi.govt.nz/protection-andresponse/environment-and-naturalresources/sustainable-fisheries/

independent-review-of-prosecutiondecisions/), only one of the two 

dolphins was reported as legally 

required. Overall, while the report and 

the video provide definitive evidence 

that under-reporting of bycatch of 

Hector’s dolphins has occurred, this 

information alone does not augment the 

available bycatch data or improve our 

understanding of the extent or rate of 

bycatch such that an endangered listing 

for the SI Hector’s dolphin is warranted. 

Lastly, we note that one of the 

commenters who requested an 

endangered listing for the SI Hector’s 

dolphin equated the population 

structure of SI Hector’s dolphins with 

‘‘distinct population segments’’ (DPSs), 

which are included in the ESA 

definition of a ‘‘species’’ and are units 

of vertebrate populations that can be 

listed under the ESA. We address DPSs 

and the issue of whether populations of 

SI Hector’s dolphins should be 

identified as DPSs under our response 

to Comment 4 (below). 

Comment 4: The Marine Mammal 

Commission commented that the 

information provided in our status 


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Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 43705 

review and proposed rule is insufficient 

to support a threatened listing for the SI 

Hector’s dolphin. The comment 

discussed four main lines of reasoning 

in support of that statement: (1) In 

contrast to the Maui dolphin, the SI 

Hector’s dolphins remain fairly 

abundant; (2) the length of the 

‘‘foreseeable future’’ we applied is 

unrealistically long; (3) bycatch is 

currently being mitigated through 

management actions, and we cannot 

assume that additional management 

measures will not be implemented by 

New Zealand; and, (4) while disease and 

tourism are potential threats, their 

population-level impacts are uncertain. 

The Commission recommended that we 

revise the length of the ‘‘foreseeable 

future’’ used in the analysis, reconsider 

whether existing regulatory mechanisms 

are inadequate to address the threat of 

bycatch, and reconsider our proposal to 

list the SI Hector’s dolphin subspecies 

as threatened. 

The Commission also noted that one 

or more of the regional populations of 

SI Hector’s dolphins could meet the 

definition of a DPS. The Commission 

states that the status review and 

proposed rule did not explore the 

possibility that any of these populations 

could merit separate listing 

consideration or could contribute to a 

threatened listing of the subspecies. 

Response: We agree with the 

Commission that the current abundance 

estimate for the SI Hector’s dolphin is 

fairly high relative to the estimated 

population abundance of Maui 

dolphins, which is at a critically low 

level. The estimated abundance of the 

entire SI subspecies was an important 

consideration in our risk analysis and 

contributed to our finding that the SI 

Hector’s dolphin is not presently in 

danger of extinction and thus does not 

meet the definition of endangered under 

the ESA. However, we did not rely on 

estimates of abundance as an exclusive 

determinant of this subspecies’ risk of 

extinction. Rather, and as is our 

standard practice when conducting 

status reviews under the ESA and as 

articulated in our status review, our 

analysis also considered other 

demographic risk factors, including 

population growth/productivity, spatial 

structure and connectivity, and genetic 

diversity. As required under the ESA, 

we also considered threats and 

protective efforts. Thus, for SI Hector’s 

dolphins in particular, we considered 

the estimates of large historical declines 

in abundance, the observed loss of 

genetic diversity, the limited 

connectivity of populations, as well as 

ongoing threats such as bycatch and the 

projections of continued declines 

despite management efforts. Ultimately, 

all of this information was used in 

reaching the conclusion that this 

subspecies faces a level of risk that 

warrants listing it as threatened under 

the ESA. 

We disagree with the comment that 

we applied an ‘‘unrealistically long’’ 

timeframe as the ‘‘foreseeable future’’ in 

our analysis and that we should revise 

it to be ‘‘a period of time relevant to 

mitigation of the bycatch threat.’’ The 

comment explicitly refers to a 

discussion presented in both the status 

review and proposed rule regarding the 

rate of decline of SI Hector’s dolphins 

around Banks Peninsula as estimated by 

Gormley et al. (2012) and our 

extrapolation of that rate of decline to 

the entire subspecies. The result of our 

calculation was a 50 percent decline in 

the population in about 138 years and 

an 80 percent decline in about 321 

years. We did not, however, apply these 

timeframes as the ‘‘foreseeable future’’ 

as asserted by the Commission. As we 

stated in the proposed rule (81 FR 

64121, September 19, 2016), these are 

simply calculations based on the limited 

data available, and we did not use them 

to establish any specific thresholds for 

determining when the subspecies may 

be in danger of extinction. The status 

review also characterizes this 

calculation as ‘‘grossly over-simplified 

and not realistic’’ and explains that a 

trend analysis and a projection of the 

time to extinction is not currently 

possible (Manning and Grantz 2017). 

We also stated in both the status review 

and proposed rule that the actual rate of 

decline of the subspecies remains 

unclear given the deficiency of bycatch 

mortality data. We note that we are not 

required to develop a specific rate of 

decline in order to find that a species 

meets the definition of threatened under 

the ESA. In this particular case, the 

available data do not support such a 

calculation. Lastly, we note that our 

ultimate determination regarding the 

status of the SI Hector’s dolphin does 

not exclusively depend on the threat of 

bycatch or the rate of decline 

attributable to bycatch alone. Our status 

review and proposed rule discuss 

available data on other demographic 

risk factors and threats, and our 

conclusion that the SI Hector’s dolphin 

warrants listing as threatened was based 

on consideration of these multiple 

threats, each of which may be operating 

at different time scales. We made minor 

edits to the status review report to 

clarify this issue. 

As requested by the Commission, we 

reconsidered our conclusion regarding 

the adequacy of existing management 

measures relative to the threat of 

bycatch of SI Hector’s dolphins. We also 

searched for additional data and 

information regarding bycatch of 

Hector’s dolphins and associated 

management measures. We did not find 

any updated information regarding the 

rate or extent of bycatch or the 

effectiveness of current bycatch 

reduction efforts around the South 

Island, nor did the Commission provide 

any data or information regarding the 

adequacy of bycatch management 

measures. We did, however, receive a 

letter, dated November 22, 2016, from 

the New Zealand Department of 

Conservation (DOC), affirming the New 

Zealand government’s commitment to 

the long-term viability of Hector’s 

dolphins and indicating that the DOC 

and the Ministry for Primary Industries 

(MPI) will be undertaking a review of 

their Threat Management Plan in 2018. 

The effectiveness of existing protections 

for the dolphins will be assessed as part 

of that review. However, we cannot 

speculate on whether or what changes 

to existing protections may occur in the 

future as a result of that review process. 

During our search for additional 

information, we noticed that since 

publication of the proposed rule to list 

SI Hector’s dolphins in September 2016 

(81 FR 64110), five SI Hector’s dolphin 

mortalities had been added to the DOC’s 

incident database. Cause of death, 

which was determinable for three of the 

five dolphins, is listed as disease for two 

dolphins and bycatch in a commercial 

trawl net for the third dolphin. We also 

found a recent press release, dated June 

27, 2017, from the New Zealand MPI 

indicating that MPI was investigating 

the death of two other SI Hector’s 

dolphins found in March 2017, one near 

Banks Peninsula on the East Coast and 

one in Greymouth on the West Coast 

(http://www.mpi.govt.nz). In the press 

release, MPI states they believe the 

cause of death of the dolphin found on 

the West Coast was illegal recreational 

set-netting. This additional information 

clearly indicates that bycatch of SI 

Hector’s dolphins is continuing in both 

trawls and gillnets; however, it does not 

constitute sufficient data to alter or 

revise our previous assessment. 

Ultimately, after careful consideration, 

we did not find any basis to change our 

previous conclusion regarding the 

adequacy of existing bycatch 

management measures. We find that the 

weight of the available data and study 

results support a conclusion that 

bycatch has contributed to a large 

historical decline in abundance and 

continues to contribute to the decline of 

SI Hector’s dolphins. 

We agree with the Commission that 

the population-level effects of disease 


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and tourism are uncertain. Other threats 

discussed in our status review report 

(Manning and Grantz 2017)—for 

example, pollution and contaminants— 

have a similar uncertainty. We do not 

agree, however, that this uncertainty 

means these threats can be disregarded. 

As we discuss in our status review 

report, the available data suggest that 

tourism activities and disease are posing 

threats to SI Hector’s dolphins (Manning 

and Grantz 2017). The report presents 

the available information regarding 

infectious disease cases (especially 

toxoplasmosis) in SI Hector’s dolphins, 

which in addition to being a possibly 

substantial source of mortality, may 

have other detrimental, sub-lethal 

consequences (e.g., increased risk of 

predation, reduced reproductive rate, 

neonatal deaths) for the dolphins. The 

status review report also presents 

information on the intensity and 

popularity of dolphin watching and 

commercial encounter (or ‘‘swim with’’) 

operations off the South Island; and 

presents evidence of short-term 

behavioral responses in SI Hector’s 

dolphins, and evidence of linkages to 

longer-term impacts in other dolphins 

(e.g., Tursiops sp.). Available data on 

the related concern of boat strikes were 

also provided. We noted in the report 

that the available data are not currently 

sufficient to understand the magnitude 

or overall impact of these threats on the 

subspecies. In our proposed rule (81 FR 

64123, September 19, 2016), we 

concluded that factors such as disease 

and tourism are ‘‘lesser threats’’ that are 

‘‘likely exacerbating the rates of 

decline’’ for SI Hector’s dolphins. In 

other words, we do not consider disease 

and tourism to be the main drivers of 

decline of SI Hector’s dolphins; rather, 

we consider them to be contributors to 

the cumulative, negative impacts on the 

status of the subspecies. 

Lastly, we disagree with the 

suggestion that we should explore the 

possibility of listing separate distinct 

population segments (DPS) of SI 

Hector’s dolphins or consider how their 

individual statuses might contribute to 

a threatened listing for the subspecies. 

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.’’ A joint 

policy with the U.S. Fish and Wildlife 

Service (together the ‘‘Services’’) lays 

out two elements that must be 

considered when identifying a DPS: (1) 

The discreteness of the population 

segment in relation to the remainder of 

the species (or subspecies); and (2) the 

significance of the population segment 

to the remainder of the species (or 

subspecies) (‘‘the DPS Policy,’’ 61 FR 

4722, February 7, 1996). As stated in the 

DPS Policy, Congress expressed its 

expectation that the Services would 

exercise authority with regard to DPSs 

sparingly and only when the biological 

evidence indicates such action is 

warranted. In this particular case, 

because we reached a determination 

that the SI Hector’s dolphin warrants 

listing at the subspecies level, such an 

analysis would be superfluous. In 

addition, because we were not 

petitioned to list the SI Hector’s 

dolphins as separate DPSs, there is no 

requirement that we commit additional 

agency resources to conduct an analysis 

and determine whether SI Hector’s 

dolphins could be listed separately at 

the DPS level. Furthermore, we note 

there is no clear conservation benefit to 

the subspecies by pursuing such an 

option. 

Comment 5: Several commenters 

stated that they were opposed to the 

elimination of swim-with-dolphin 

activities. One commenter stated that, 

although he is supportive of marine 

mammal conservation generally, 

swimming with wild dolphins should 

not be prohibited because it causes no 

harm to the dolphins. 

Response: This rulemaking concerns 

only whether Maui dolphins and SI 

Hector’s dolphins meet the statutory 

definition of a threatened or endangered 

species and thus warrant listing under 

the ESA. Therefore, these comments are 

not relevant to this rulemaking. 

Furthermore, regulation of swimming 

with wild Hector’s dolphins is under 

the exclusive jurisdiction of the 

government of New Zealand. 

We also note that, as discussed in our 

proposed rule and status review, several 

studies have demonstrated short-term 

behavioral changes in SI Hector’s 

dolphins in response to dolphinwatching tour boats and ‘swim-with’ 

activities (e.g., significant disruptions of 

diving and travelling), and that any 

longer-term impacts are not yet clear. 

The commenter provided no data or 

information to support the assertion that 

such activities pose ‘‘no harm’’ to SI 

Hector’s dolphins. 

Comment 6: Over a dozen 

commenters requested that the United 

States or U.S. citizens stop buying New 

Zealand fish until both Maui and SI 

Hector’s dolphins are protected 

throughout their ranges. Several 

comments specifically referenced the 

Fish and Fish Product Import Provisions 

of the Marine Mammal Protection Act 

and the associated regulatory 

requirements for countries wishing to 

export fish to the United States. One of 

these commenters stated that to meet 

these requirements New Zealand will 

have to implement effective measures to 

protect Maui and Hector’s dolphins, 

including substantially improving its 

fisheries management systems. 

Response: This rulemaking concerns 

only whether Maui dolphins and SI 

Hector’s dolphins meet the statutory 

definition of a threatened or endangered 

species and thus warrant listing under 

the ESA. Listing the Maui dolphin and 

the SI Hector’s dolphin under the ESA 

will not directly result in a ban or 

prohibition on U.S. import of fish or fish 

products from fisheries contributing to 

incidental mortality or serious injury of 

Hector’s dolphins. Such a ban cannot be 

established under the authority of the 

ESA. Specific protections that will be 

provided to Hector’s dolphins following 

their listing under the ESA are 

discussed below in the Effects of Listing 

section. 

U.S. import of fish or fish products 

from a nation’s fisheries with associated 

incidental mortality or serious injury of 

marine mammals may be subject to 

NMFS’ recent regulation promulgated 

under the U.S. Marine Mammal 

Protection Act (81 FR 54390, August 15, 

2016). This regulation established 

criteria and a formal process for 

evaluating foreign fisheries and their 

frequency of incidental mortality and 

serious injury of marine mammals. 

Additional information on this 

regulation and its implementation are 

available online at www.fisheries.

noaa.gov/ia/slider_stories/2016/08/

mmpafinalrule.html. 

Comment 7: Multiple commenters 

raised concerns about the impacts to 

Hector’s dolphins from offshore oil and 

gas development and alternative energy 

projects. One commenter stated that 

there are concerns that current seismic 

mapping will scare away Hector’s 

dolphins on the east coast of the South 

Island. Another commenter stated that 

we should further consider emerging 

threats, including the potential offshore 

expansion of renewable energy 

facilities. This commenter noted that 

while her organization is not opposed to 

renewable energy projects and that 

while relevant data are limited, the risks 

to Hector’s dolphins stemming from pile 

driving noise, collisions with tidal 

turbines, increased marine traffic, vessel 

strikes, and habitat displacement should 

not be dismissed. The commenter 

provided several studies documenting 

the effects of wind farm construction 

and operation on harbor porpoises 

within the Baltic Sea. 

Response: We agree that seismic 

testing and other activities within the 


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marine environment associated with oil 

and gas exploration and development 

may be posing threats to Hector’s 

dolphins. Our status review (Manning 

and Grantz 2017) provided some 

discussion about the possible impacts of 

these activities—for example, 

reductions in local fish abundance 

(Enga ̊s et al., 1996), disruption of 

normal behaviors (Gordon et al., 2003; 

Thompson 2012), and habitat 

displacement (Hildebrand 2005). 

However, we also acknowledged that 

the extent to which Hector’s dolphins 

are being negatively affected—both 

individually and at a population level— 

has not yet been established because 

there are insufficient data to evaluate 

impacts to Hector’s dolphins 

specifically. Thus, we cannot draw any 

firm conclusions regarding the extent to 

which these activities are affecting 

Hector’s dolphins. We note that the 

Marine Mammal Impact Assessments, 

which are prerequisite environmental 

assessments for conducting seismic 

testing within New Zealand’s EEZ 

(http://www.doc.govt.nz/our-work/ 

seismic-surveys-code-of-conduct/marine

-mammal-impact-assessments/), 

typically conclude that impacts on 

marine mammals from seismic testing 

are ‘‘minor.’’ 

In response to the comment on marine 

renewable energy facilities and projects, 

we reviewed the literature submitted 

and conducted a search for additional 

information regarding these types of 

projects within New Zealand. According 

to the national energy efficiency strategy 

for 2017–2022, New Zealand has set a 

target of generating 90 percent of its 

electricity from renewable sources by 

the year 2025 (MBIE 2017). However, 

very little information is available 

regarding specific renewable marine 

energy projects or associated impacts in 

New Zealand. Tidal and wave energy 

development, in particular, appear to be 

at a very nascent stage. The Energy 

Efficiency and Conservation Authority 

(EECA) is New Zealand’s government 

agency charged with promoting energy 

efficiency, including the use of 

renewable sources of energy. According 

to EECA’s Web site, the agency provided 

funding to support six wave or tidal 

projects from 2007 to 2011 but none of 

those projects has proceeded past some 

initial stage. A tidal power project has 

been proposed for the main channel of 

Kaipara Harbor, which lies towards the 

northern edge of the Maui dolphin 

range; however, the status of that facility 

is unclear. Within the range of SI 

Hector’s dolphins, as of 2011, two tidal 

energy projects were being pursued in 

Cook Strait, and research and 

development to support a wave energy 

project in Pegasus Bay was underway 

(Wright and Leary 2011). The current 

status of these projects is also unclear. 

The EECA Web site states that, given the 

relatively substantial expense of these 

projects, the agency does not foresee 

marine energy as a major energy 

contributor in New Zealand (see 

www.eeca.govt.nz). Wind energy 

appears to be a more promising 

renewable energy source in New 

Zealand, and according to the EECA, 19 

wind farms are either operating or under 

construction. However, none of these 

wind farms are in the marine 

environment (see 

www.windenergy.org.nz). Therefore, at 

this time, there is insufficient 

information to evaluate whether 

renewable marine energy projects are 

currently posing a threat to Hector’s 

dolphins, and there is no clear 

indication that renewable energy 

projects will pose a future threat to the 

dolphins or their habitat. We have 

revised our status review report to 

include a discussion of renewable 

energy development, but ultimately this 

information did not alter our extinction 

risk conclusions for either subspecies. 

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 determinations. We 

did, however, make several revisions to 

the status review report (Manning and 

Grantz 2017) to incorporate, as 

appropriate, relevant information 

received in response to our request for 

public comments. Specifically, we 

updated the status review to include the 

more recently completed 2015–2016 

abundance estimate for Maui dolphins 

and associated results (e.g., survival 

rates, Baker et al., 2016). Because this 

new abundance estimate still indicates 

a critically low population abundance of 

63 dolphins 1 year of age and older (95 

percent CI = 57–75; Baker et al., 2016) 

and is within the 95 percent confidence 

interval of the previous estimate (N = 

55, 95 percent CI = 48–69), it did not 

alter the outcome of our risk assessment. 

We expanded our discussion of 

population structure within the SI 

Hector’s dolphin to include the 

additional references provided by a 

commenter and made minor edits to 

clarify our discussion on the rate of 

decline for this subspecies. We also 

revised the status review report by 

adding a discussion of the potential 

threat of marine alternative energy 

projects to both Hector’s and Maui 

dolphins. As noted above, consideration 

of this additional, potential threat did 

not alter any conclusions regarding 

extinction risk for either subspecies. 

Lastly, we updated the spelling of the 

common name for C. hectori maui to 

Maui in response to a peer reviewer’s 

comment that this spelling more 

appropriately reflects the Maori 

language from which the name was 

derived. 

Status Review 

Status reviews for the Maui dolphin 

and the SI Hector’s dolphin were 

completed by NMFS staff from the 

Office of Protected Resources. To 

complete the status reviews, 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 status 

review report provides a thorough 

discussion of the life history, threats, 

demographic risks, and overall 

extinction risk for both dolphin 

subspecies. The status review was 

subjected to peer review by three, 

independent reviewers. All peer 

reviewer comments are available at 

http://www.cio.noaa.gov/services_

programs/prplans/ID351.html. The final 

status review report (cited as Manning 

and Grantz 2017) is available on our 

Web site http://www.nmfs.noaa.gov/pr/ 

species/petition81.htm. 

ESA Section 4(a)(1) Factors Affecting 

the Dolphins 

As stated previously and as discussed 

in the proposed rule (81 FR 64110; 

September 19, 2016), we considered 

whether any one or a combination of the 

five threat factors specified in section 

4(a)(1) of the ESA are contributing to the 

extinction risk of the Maui and SI 

Hector’s dolphins. Several commenters 

provided additional information related 

to threats such as forms of habitat 

modification and degradation, underreporting of bycatch, and the projected 

population decline of SI Hector’s 

dolphins. The information provided was 

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 

herein all information, discussion, and 

conclusions regarding the factors 

affecting the two dolphin subspecies 

from the final status review report 

(Manning and Grantz 2017) and the 


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proposed rule (81 FR 64110; September 

19, 2016). 

Extinction Risk 

As discussed previously, the status 

review evaluated the demographic risks 

to both dolphin subspecies 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 

each 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 abundance 

estimate for Maui dolphins and 

information from two additional studies 

regarding population fragmentation 

within SI Hector’s dolphins, none of the 

comments or information we received 

on the proposed rule changed the 

outcome of our extinction risk 

evaluations for either subspecies. Our 

conclusions regarding extinction risk for 

these subspecies remain the same. 

Therefore, we incorporate herein all 

information, discussion, and 

conclusions on the extinction risk of the 

two dolphin subspecies in the final 

status review report (Manning and 

Grantz 2017) and proposed rule (81 FR 

64110; September 19, 2016). 

Protective Efforts 

In addition to regulatory measures 

(e.g., fishing and boating regulations, 

sanctuary designations), we considered 

other efforts being made to protect 

Hector’s dolphins. We considered 

whether such protective efforts altered 

the conclusions of the extinction risk 

analysis for Maui and SI Hector’s 

dolphins. None of the information we 

received on the proposed rule affected 

our conclusions regarding conservation 

efforts to protect the two dolphin 

subspecies. Therefore, we incorporate 

herein all information, discussion, and 

conclusions on the extinction risk of the 

two dolphin subspecies in the final 

status review report (Manning and 

Grantz 2017) and proposed rule (81 FR 

64110; September 19, 2016). 

Final Listing Determinations 

The present estimated abundance of 

Maui dolphins is critically low, and the 

subspecies faces additional 

demographic risks due to greatly 

reduced genetic diversity and a low 

intrinsic population growth rate. Past 

declines, estimated to be on the order of 

about 90 percent (Martien et al., 1999, 

Slooten 2007a), are considered to have 

been driven largely by bycatch in 

gillnets (Currey et al., 2012). Maui 

dolphins continue to face threats of 

bycatch, disease, and mining and 

seismic disturbances; and, it is 

considered unlikely that this subspecies 

will recover unless sources of 

anthropogenic mortality are eliminated 

(Slooten et al., 2006; MFish and DOC 

2007b, Baker et al., 2010). Based on the 

best available scientific and commercial 

information, as summarized here, in our 

proposed rule (81 FR 64110; September 

19, 2016), and in the status review 

report (Manning and Grantz 2017), and 

after consideration of protective efforts, 

we find that the Maui dolphin 

(Cephalorhynchus hectori maui) is in 

danger of extinction throughout its 

range. Therefore, we find that this 

subspecies meets the definition of an 

endangered species under the ESA and 

list it as such. 

The SI Hector’s dolphin has 

experienced substantial population 

declines since the 1970s, has relatively 

low genetic diversity, a low intrinsic 

population growth rate, and a 

fragmented population structure. 

Although historical data are lacking, 

Slooten (2007a) estimated that the SI 

Hector’s dolphin population has 

declined by about 73 percent between 

1970 and 2007, and available 

population viability analyses indicate 

that the SI Hector’s dolphin is likely to 

continue to decline unless bycatch 

mortality is reduced (Davies et al., 2008, 

Slooten and Davies 2012, Slooten 2013). 

Gormley et al. (2012) estimated that the 

Banks Peninsula population, which has 

benefited from almost three decades of 

protection, would continue to decline at 

a rate of about 0.5 percent per year 

despite significantly improved survival 

rates. The actual rate of decline of the 

subspecies remains unclear given the 

very limited bycatch mortality data 

available, and a trend analysis based on 

survey data is also confounded by the 

fact that surveys have covered different 

portions of the range and have 

dramatically increased in sophistication 

and geographical scope over time. Thus, 

a precise analysis of the rate of decline 

and projection of time to extinction 

given multiple threats and demographic 

considerations is not currently possible. 

However, the available evidence 

indicates that management measures 

have not halted population declines and 

supports a conclusion that populations 

of SI Hector’s dolphins will continue to 

decline. 

Current levels of bycatch are 

contributing to the decline of this 

subspecies (Slooten and Davies 2012). 

Additional, lesser threats, such as 

disease and tourism impacts, are likely 

exacerbating the rate of decline and 

thereby contributing to the overall 

extinction risk of this subspecies. Given 

recent abundance estimates for the total 

population and evidence of a slowed 

rate of decline following expanded 

fisheries management measures, we find 

that this subspecies is not presently in 

danger of extinction. However, 

significant historical declines and the 

projected decline for most populations, 

combined with a low population growth 

rate, low genetic diversity, limited 

population connectivity, and the 

ongoing threats of bycatch, disease, and 

tourism, provide a strong indication that 

this subspecies is likely to become an 

endangered species within the 

foreseeable future. We therefore find 

that this subspecies meets the definition 

of threatened under the ESA 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)). These prohibitions do not 

apply to species listed as threatened 

unless protective regulations are issued 

under section 4(d) of the ESA (16 U.S.C. 

1533(d)), leaving it to the Secretary’s 

discretion whether, and to what extent, 

to extend the ESA’s prohibitions to the 

species. Section 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. 

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 


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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 Maui 

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 in the United 

States, its territorial sea, or on the high 

seas. Activities that could result in a 

violation of section 9 prohibitions for 

Maui dolphins include, but are not 

limited to, the following: 

(1) Delivering, receiving, carrying, 

transporting, or shipping in interstate or 

foreign commerce any Maui dolphin or 

any of its parts, in the course of a 

commercial activity; 

(2) Selling or offering for sale in 

interstate commerce any part, except 

antique articles at least 100 years old; 

and 

(3) Importing or exporting Maui 

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 Maui 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 Maui dolphins 

or any 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 

the authority to promulgate regulations 

that may be appropriate to enforce the 

ESA. Thus, we could promulgate future 

regulations to regulate trade or holding 

of Maui dolphins. However, we do not 

foresee a necessity for such regulations 

at this time. 

Protective Regulations Under Section 

4(d) of the ESA 

Because we are listing the SI Hector’s 

dolphins as threatened, the prohibitions 

under section 9 of the ESA will not 

automatically apply to this subspecies. 

As stated above, ESA section 4(d) leaves 

it to the Secretary’s discretion whether, 

and to what extent, to extend the section 

9(a) prohibitions to threatened species, 

and authorizes us to issue regulations 

that are deemed necessary and advisable 

to provide for the conservation of the 

species. Because SI Hector’s dolphins 

occur entirely outside of the United 

States, and are not commercially traded 

with the United States, extending the 

section 9(a) prohibitions to this 

subspecies will not result in added 

conservation benefits or species 

protection, particularly given the fact 

that such trade is already generally 

prohibited under the Marine Mammal 

Protection Act (16 U.S.C. 1372). 

Therefore, we do not intend to issue 

section 4(d) regulations for SI Hector’s 

dolphins at this time. 

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 

these subspecies under the ESA will 

increase the number of section 7 

consultations, because these subspecies 

occur outside of the United States and 

are 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)). Maui and SI Hector’s 

dolphins are endemic to New Zealand 

and do 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 either subspecies. 

Therefore, we do not intend to propose 

any critical habitat designations for 

either 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 Hector’s dolphins. 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 (Manning and 

Grantz 2016), which was then made 

available for public comment. As stated 

earlier, peer reviewer comments on the 

status review are available at http://

www.cio.noaa.gov/services_programs/ 

prplans/ID351.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, 675 F. 2d 825 

(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 


asabaliauskas on DSKBBXCHB2PROD with RULES
43710 Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 

Flexibility Act are not applicable to the 

listing process. 

In addition, this 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 

50 CFR Part 223 

Endangered and threatened species, 

Exports, Transportation. 

50 CFR Part 224 

Endangered and threatened species, 

Exports, Imports, Transportation. 

Dated: September 14, 2017. 

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 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart 

B, §§ 223.201–202 also issued under 16 

U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

■ 2. In § 223.102, amend the table in 

paragraph (e) by adding a new entry 

under ‘‘Marine Mammals’’ in 

alphabetical order, by common name, to 

read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 

Species 1

Citation(s) for listing 

determination(s) 

Critical 

habitat ESA rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

Dolphin, Hector’s ................. Cephalorhynchus hectori hectori ............. Entire subspecies .............. [Insert Federal Register 

page where the document begins], September 

19, 2017.

NA NA 

* * * * * * * 

1Species 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 

■ 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. 

■ 4. In § 224.101, amend the table in 

paragraph (h) by adding a new entry 

under ‘‘Marine Mammals’’ in 

alphabetical order, by common name, to 

read as follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) * * * 

Species 1

Citation(s) for listing 

determination(s) 

Critical 

habitat ESA rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Dolphin, Maui ...................... Cephalorhynchus hectori maui ................ Entire subspecies .............. [Insert Federal Register 

page where the document begins], September 

19, 2017.

NA NA 

* * * * * * * 

1Species 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. 2017–19903 Filed 9–18–17; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

RIN 0648–XF700 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification that the Northeast 

Distant Area (NED) quota is filled and 

Atlantic Tunas Longline Category 

Individual Bluefin Quota (IBQ) 

accounting rules now apply in the NED. 

SUMMARY: NMFS announces that the 25- 

mt quota available for Atlantic bluefin 

tuna bycatch (including landings and 

dead discards) by the Longline category 

in the Northeast Distant gear restricted 


asabaliauskas on DSKBBXCHB2PROD with RULES