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DEPARTMENT OF COMMERCE (Fleming and Jackson 2011), including likely to become so within the the past, present, and foreseeable future foreseeable future. Accordingly, we National Oceanic and Atmospheric threats to this species, and appointed a issued a proposed rule (80 FR 22304; Administration Biological Review Team (BRT) to April 21, 2015) to revise the species- analyze that information, make wide listing of the humpback whale by 50 CFR Parts 223 and 224 conclusions on extinction risk, and replacing it with two endangered [Docket No. 130708594–6598–03] prepare a status review report (Bettridge species listings (Cape Verde Islands/ et al. 2015). Northwest Africa and Arabian Sea RIN 0648–XC751 On April 16, 2013, we received a DPSs) and two threatened species petition from the Hawaii Fishermen’s listings (Western North Pacific and Endangered and Threatened Species; Alliance for Conservation and Tradition, Central America DPSs). We also Identification of 14 Distinct Population Inc., to classify the North Pacific proposed to extend all ESA section 9 Segments of the Humpback Whale humpback whale population as a DPS prohibitions to both the Western North (Megaptera novaeangliae) and and then ‘‘delist’’ that DPS under the Pacific and the Central America DPSs. Revision of Species-Wide Listing ESA. On February 26, 2014, the State of As described below, after considering AGENCY: National Marine Fisheries Alaska submitted a petition to delineate public comments and the best available Service (NMFS), National Oceanic and the Central North Pacific (Hawaii) scientific and commercial information, Atmospheric Administration (NOAA), ‘‘stock’’ of the humpback whale as a we have now reached our final Commerce. DPS and subsequently remove that DPS determinations, which in three from the ESA List of Endangered and ACTION: Final rule. instances differ from our proposed Threatened Species. After reviewing the determinations. We now issue a final SUMMARY: We, NMFS, issue a final petitions, the literature cited in the rule to revise the species-wide listing of determination to revise the listing status petitions, and other literature and the humpback whale by replacing it of the humpback whale (Megaptera information available in our files, we with four endangered species listings novaeangliae) under the Endangered found that both petitioned actions may (Cape Verde Islands/Northwest Africa, Species Act (ESA). We divide the be warranted and issued positive 90-day Western North Pacific, Central America, globally listed endangered species into findings (78 FR 53391, August 29, 2013; and Arabian Sea DPSs) and one 14 distinct population segments (DPS), 79 FR 36281, June 26, 2014). Public threatened species listing (Mexico DPS). remove the current species-level listing, comment periods were opened upon We also finalize our proposed rule to and in its place list four DPSs as publication of these findings to solicit extend all ESA section 9 prohibitions to endangered and one DPS as threatened. information to be considered in the threatened humpback whales (which Based on their current statuses, the context of the ongoing status review. We now consists of the Mexico DPS). remaining nine DPSs do not warrant subsequently extended the public listing. At this time, we find that critical comment period pertaining to Listing Determinations Under the ESA information regarding the Central North habitat is not determinable for the three We are responsible for determining listed DPSs that occur in U.S. waters Pacific (Hawaii) population (79 FR 40054; July 11, 2014). We then whether species are threatened or (Western North Pacific, Mexico, Central endangered under the ESA (16 U.S.C. America); we will consider designating incorporated all information into a single status review report of the 1531 et seq.). To reach a listing critical habitat for these three DPSs in determination for a particular group of a separate rulemaking. humpback whale (available at http:// www.fisheries.noaa.gov/pr/species/ organisms, we must first consider DATES: This final rule is effective mammals/whales/humpback- whether that group of organisms October 11, 2016. whale.html). constitutes a ‘‘species’’ under the ESA, ADDRESSES: Public comments, a list of Based on information presented in the and then we consider whether the status references cited in this final rule, and status review report (which included a of the species qualifies it for listing as other supporting materials are available demographic analysis, threats analysis, either threatened or endangered. Section at www.regulations.gov identified by and extinction risk analysis), our 3 of the ESA defines a ‘‘species’’ to docket number NOAA–NMFS–2015– assessment of the BRT’s conclusions, include ‘‘any subspecies of fish or 0035, or by submitting a request to the and efforts being made to protect the wildlife or plants, and any distinct National ESA Listing Coordinator, species, we initially determined: (1) 14 population segment of any species of Office of Protected Resources, NMFS, populations of the humpback whale met vertebrate fish or wildlife which 1315 East-West Highway, Room 13536, the criteria of the NMFS and U.S. Fish interbreeds when mature.’’ On February Silver Spring, MD 20910. and Wildlife Service (USFWS) joint 7, 1996, NMFS and the USFWS FOR FURTHER INFORMATION CONTACT: 1996 DPS Policy and were, therefore, (together, the Services) adopted a policy Marta Nammack, NMFS, (301) 427– considered to be DPSs; (2) the Cape describing what constitutes a DPS of a 8469, [email protected]. Verde Islands/Northwest Africa and species or subspecies (61 FR 4722). The SUPPLEMENTARY INFORMATION: Arabian Sea DPSs were in danger of joint DPS policy identified two elements extinction throughout their ranges; (3) that must be considered when Background the Western North Pacific and Central identifying a DPS: (1) The discreteness On August 12, 2009, we announced America DPSs were likely to become of the population segment in relation to the initiation of a status review of the endangered throughout all of their the remainder of the species (or humpback whale to determine whether ranges within the foreseeable future; subspecies) to which it belongs; and (2) an endangered listing for the entire and (4) the West Indies, Hawaii, Mexico, the significance of the population species was still appropriate (74 FR Brazil, Gabon/Southwest Africa, segment to the remainder of the species 40568). We sought information from the Southeast Africa/Madagascar, West (or subspecies) to which it belongs. As public to inform our review, contracted Australia, East Australia, Oceania, and stated in the joint DPS policy, Congress with two post-doctoral students to Southeastern Pacific DPSs were not in expressed an expectation that the compile the best available scientific and danger of extinction throughout all or a Services would exercise authority with commercial information on the species significant portion of their ranges or regard to identifying DPSs sparingly and

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only when the biological evidence predation; the inadequacy of existing policy in that a portion of the range of indicates such action is warranted. regulatory mechanisms; and other a species was considered ‘‘significant’’ if Section 3 of the ESA defines an natural or manmade factors affecting a the portion’s contribution to the endangered species as ‘‘any species species’ continued existence (16 U.S.C. viability of the species was so important which is in danger of extinction 1533(a)(1); 50 CFR 424.11(c)). We that, without that portion, the species throughout all or a significant portion of evaluate demographic risk factors (i.e., would be in danger of extinction (i.e., its range’’ and a threatened species as abundance and trend information) in endangered) throughout all of its range. one ‘‘which is likely to become an conjunction with the section 4(a)(1) Under the Final SPOIR Policy, the endangered species within the factors. The demographic risk analysis hypothetical loss of the portion being foreseeable future throughout all or a is an assessment of the manifestation of considered would only need to result in significant portion of its range’’ (16 past threats that have contributed to the the species being at least threatened U.S.C. 1533(6); (20)). Thus, we interpret species’ current status and also informs throughout its range instead of an ‘‘endangered species’’ to be one that the consideration of the biological endangered throughout its range.) is presently in danger of extinction. A response of the species to present and Status Review ‘‘threatened species,’’ on the other hand, future threats. is not presently in danger of extinction, Section 4(b)(1)(A) of the ESA requires A summary of basic biological and life but is likely to become so within the us to make listing determinations based history information of the humpback foreseeable future (that is, at a later solely on the best scientific and whale can be found in the proposed rule time). In other words, the primary commercial data available after (80 FR 22304; April 21, 2015 at 22307– statutory difference between a conducting a review of the status of the 22309) and more details can be found in threatened and endangered species is species and after taking into account Fleming and Jackson (2011) and the the timing of when a species may be in efforts being made by any State or BRT’s status review report (Bettridge et danger of extinction, either presently foreign nation or political subdivision al. 2015; available at http:// (endangered) or in the foreseeable future thereof to protect the species (16 U.S.C. www.nmfs.noaa.gov/pr/species/ (threatened). 1533(b)(1)(A)). statusreviewes.htm). As we described As we explained in the proposed rule Applying the definitions of more fully in the proposed rule, to and summarize here, when we consider ‘‘endangered species’’ and ‘‘threatened identify potential DPSs, the BRT whether a species might qualify as species,’’ we first consider the status of reviewed the best scientific and threatened under the ESA, we must a ‘‘species’’ (which includes subspecies commercial data available on the consider the meaning of the term and DPSs) ‘‘throughout all . . . of its humpback whale’s taxonomy and ‘‘foreseeable future.’’ It is appropriate to range.’’ If (and only if) this rangewide concluded that there are likely three interpret ‘‘foreseeable future’’ as the evaluation does not lead to a conclusion unrecognized subspecies of humpback horizon over which predictions about that the species should be listed as whale: North Pacific, North Atlantic, the conservation status of the species endangered or threatened, then we must and Southern Hemisphere. In reaching can be reasonably relied upon. The consider whether the species may be this conclusion, the BRT considered foreseeable future considers the life endangered or threatened in ‘‘a available life history, morphological, history of the species, habitat significant portion of its range.’’ If it is, and genetic information (mtDNA and characteristics, availability of data, then the entire species (or subspecies, or DNA relationships and distribution, as particular threats, ability to predict DPS) will be listed. As we explained in described in Jackson et al. (2014)). Next, threats, and the reliability to forecast the the proposed rule and summarize here, the BRT considered various humpback effects of these threats and future events we are guided in these listing whale populations to determine on the status of the species under determinations by the final joint policy whether they satisfied the DPS criteria consideration. Because a species may be adopted by the Services in 2014 (79 FR of discreteness and significance relative susceptible to a variety of threats for 37577; July 1, 2014) (Final SPOIR to the three subspecies. which different data are available, or Policy). The Final SPOIR Policy The BRT considered both the which operate across different time explains that it is necessary to fully abundance and trend information (i.e., scales, the foreseeable future is not evaluate a portion under the ‘‘significant the demographic analysis) and the necessarily reducible to a particular portion of its range’’ authority only if threats to each DPS before reaching its number of years. Our approach is substantial information indicates that conclusions on overall extinction risk consistent with the legal analysis the members of the species in a for each DPS. With regard to the adopted by the Department of the particular area are likely to both meet demographic analysis, the BRT Interior. See United States Department the test for biological ‘‘significance’’ concluded that abundance and, where of the Interior, Office of the Solicitor, established in the policy and to be available, trend information should be Memorandum, ‘‘The Meaning of currently endangered or threatened in considered carefully but were not the ‘Foreseeable Future’ in section 3(20) of that area. Making this preliminary sole criteria for evaluating extinction the Endangered Species Act,’’ M–37021 determination triggers a need for further risk. When considering numbers of (Jan. 16, 2009). review, but does not prejudge whether individuals within a DPS, the BRT In determining the listing status of a the portion actually meets these considered the following general species, subspecies, or DPS, the ESA standards such that the species should thresholds for population risk: A DPS and implementing regulations require be listed. with a total population size >2,000 that we consider whether the species is The BRT initially applied the higher individuals was not likely to be at risk endangered or threatened because of threshold for ‘‘significance’’ from the due to low abundance alone; a DPS with any one or a combination of the 2011 draft SPOIR policy but before a population size <2,000 individuals following factors: The present or finalizing the report confirmed that would be at increasing risk from factors threatened destruction, modification, or application of the threshold of the final associated with low abundance (and the curtailment of its habitat or range; SPOIR Policy would not have changed lower the population size, the greater overutilization of the species for the findings for any DPS (See 80 FR the risk); a DPS with a population size commercial, recreational, scientific, or 22304, at 22349). (The draft SPOIR <500 individuals would be at high risk educational purposes; disease or policy differed from the final SPOIR due to low abundance; and a DPS with

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a population size <100 individuals information on the West Indies DPS, the Humpback Whale DPS Proposed Final would be at extremely high risk due to Western North Pacific DPS, the Hawaii low abundance. BRT members also DPS, the Mexico DPS, the Central Central America ...... T E. considered how each of the factors (or America DPS, the Gabon/Southwest Brazil ...... NW NW. threats) listed in ESA section 4(a)(1) Africa DPS, and the Oceania DPS. After Gabon/Southwest Africa NW NW. contribute to the extinction risk of each reviewing public comments and new Southeast Africa/Mada- NW NW. gascar. DPS now and in the foreseeable future. information, we determined that: (1) West Australia ...... NW NW. The BRT decided to evaluate risk of Some of the data we relied upon for the East Australia ...... NW NW. extinction over a time frame of West Indies DPS abundance estimate is Oceania ...... NW NW. approximately 60 years, which not yet available in final, validated form Southeastern Pacific ..... NW NW. corresponds to about three humpback or fully analyzed by the authors of the Arabian Sea ...... E E. whale generations. The BRT concluded relevant study, so for the final rule we it could be reasonably confident in are relying solely on data from an earlier Rationale for Revising the Listing Status evaluating extinction risk over this time survey because it represents the best of a Listed Species Under the ESA period (the foreseeable future) because available scientific and commercial We have determined that, based on current trends in both the biological data, but this does not change our initial the best available scientific and status of the species and the threats it determination that listing this DPS is commercial information, the humpback faces are reasonably foreseeable over not warranted; (2) upon reconsideration whale should be recognized under the this period of time. In making our listing of the information we had at the time of ESA as 14 individual DPSs. We determinations, we have applied a our proposal, the extinction risk to the described the delineations of these 14 period of 60 years as the general Western North Pacific DPS should be DPSs in detail in the 12-month foreseeable future when considering classified as high, not moderate, and determination and proposed rule (80 FR impacts to the species. therefore, we are listing this DPS as 22304; April 21, 2015). Comments In reaching our proposed listing endangered instead of threatened; (3) determinations, we reviewed the status regarding the delineation are addressed upon reconsideration of the information under Summary of Comments below. review report (Bettridge et al. 2015) and we had at the time of our proposal, and concluded that it provided the best Based on a comprehensive status review in light of updated, lower abundance and our analysis of demographic factors available scientific and commercial data estimates, the extinction risk to the on the identification of DPSs, and the section 4(a)(1) factors, we have Mexico DPS should be classified as concluded that four of the DPSs qualify abundance and trends, and section moderate, not low, and therefore, we are 4(a)(1) factors as of the time it was as endangered species, one qualifies as listing this DPS as threatened; (4) upon a threatened species, and nine do not compiled. To make the proposed listing reconsideration of the information we determinations, we used the best warrant listing. Our action here is had at the time of our proposal, and in available scientific and commercial data prompted both by our own review, light of the updated, lower abundance on the humpback whale, which are begun in 2009, and the two delisting estimate for the Central America DPS summarized in the status review report petitions we received. and associated uncertainties, the and incorporated herein. After Our final determinations are based on extinction risk to the Central America considering conservation efforts by the best available scientific and DPS should be classified as high, not States and foreign nations to protect the commercial information pertaining to moderate, and therefore, we are listing DPS, as required under section the species throughout its range and this DPS as endangered instead of 4(b)(1)(A), we proposed listing within each DPS. In this final rule, we threatened; (5) we have updated the determinations based on the statutory are identifying 14 DPSs, making listing definitions of ‘‘endangered species’’ and population abundance estimate for the determinations for each DPS, and ‘‘threatened species’’ (80 FR 22304; Gabon/Southwest Africa DPS to 7,134, revising the current listing. We find that April 21, 2015). based on more reliable data, but this the purposes of the ESA would be To make our final listing does not change our initial furthered by managing this wide- determinations, we reviewed all determination that listing this DPS is ranging species as separate units under information provided during the 90-day not warranted; and (6) the population the DPS authority, in order to tailor public comment period on the proposed abundance estimate and the population protections of the ESA to those rule (which included some studies and growth rate of the Oceania DPS are populations that warrant protection. reports not initially considered for the 4,329 and 3 percent per year (previously Based on a review of the demographics proposed rule), information received ‘‘unknown’’), respectively, which of these DPSs and the five factors through the four public hearings, and further strengthens our initial contained in ESA section 4(a)(1), we additional scientific and commercial determination that listing this DPS is find that the best available science no data that became available since the not warranted. With this rule, we longer supports a finding that the publication of the proposed rule and the finalize our listing determinations, species is an ‘‘endangered species’’ status review report. In most cases, this resulting in four DPSs listed as throughout its range. We revise the additional information merely endangered (E), one DPS listed as listing for the humpback whale by supplemented, and did not differ threatened (T), and nine DPSs not removing the current species-wide significantly from, the information warranted for listing (NW), as described listing and in its place listing four DPSs presented in the proposed rule. Where in the following table: as endangered and one DPS as new information was received, we have threatened. Nine DPSs are not being reviewed it and present our evaluation Humpback Whale DPS Proposed Final listed because their current status does not warrant listing. Because these DPSs of the information in this final rule. In West Indies ...... NW NW. most cases, the new information Cape Verde Islands/ E E. are not currently listed as separate received was not so significant that we Northwest Africa. entities, we are revising and replacing are relying on it for our final Western North Pacific ... T E. the existing listing of the species with determinations. We received comments Hawaii ...... NW NW. separate listings for those DPSs that and received or obtained new Mexico ...... NW T. warrant classification as threatened or

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endangered under authority of sections ensure that the current lists of parties including the public, other 4(a)(1) and 4(c)(1) of the ESA, rather endangered and threatened species concerned governments and agencies, than ‘‘delisting’’ those DPSs that do not comport with the best available Indian tribal governments, Alaska warrant such classification under our scientific and commercial information. Native tribal governments or regulations (50 CFR 424.11(d)). For example, updating a listing may organizations, the scientific community, However, the effect of our final action further the statute’s purpose of industry, and any other interested is that the protections of the ESA no recognizing when the status of a listed parties on the proposed rule (80 FR longer apply to these nine DPSs. We species has improved to the point that 22304). Specifically, we requested note that we have previously fewer protections are needed under the information regarding: reclassified a species into constituent ESA, allowing for appropriately tailored (1) The identification of 3 subspecies populations (e.g., identified western and management for the populations that do of humpback whale composed of 14 eastern populations of the gray whale not warrant listing and for those DPSs; (Eschrichtius robustus) and revised the remaining populations that do. Where a (2) The current population status of listing to remove one population (the species, subspecies, or DPS no longer identified humpback whale DPSs; eastern one) from the endangered needs protection of the ESA, removing (3) Biological or other information species list (59 FR 31094; June 16, those protections may free resources regarding the threats to the identified 1994)). that can be devoted to the protection of humpback whale DPSs; The ESA gives us authority to make other species. Conversely, (4) Information on the effectiveness of these listing determinations and to disaggregating a species listing into ongoing and planned humpback whale revise the lists of endangered and DPSs can also sometimes lead to greater conservation efforts by countries, states, threatened species to reflect these protections if one or more constituent or local entities; determinations. Section 4(a)(1) of the DPSs qualify for reclassification to (5) Activities that could result in a ESA authorizes us to determine by endangered. violation of section 9(a)(1) of the ESA if regulation whether ‘‘any species,’’ There is no practicable alternative to such prohibitions are applied to the which is expressly defined to include simultaneously recognizing the newly Western North Pacific and Central species, subspecies, and DPSs, is identified DPSs and assigning them the America DPSs; endangered or threatened based on various statuses of threatened, (6) Whether any DPS of the humpback certain factors. Review of the status of endangered, or not warranted to replace whale that is not listed under the ESA a species may be commenced at any the original taxonomic species listing. It in a final rule would automatically lose time, either on our own initiative would be nonsensical and contrary to depleted status under the Marine through a status review at any time, or the statute’s purposes and the best Mammal Protection Act (MMPA), or, if in connection with a ‘‘5-year’’ review available science requirement to attempt not, what analysis and process is under section 4(c)(2), or in response to to first separately list all the constituent required by the MMPA before a change a petition. A DPS is not a scientifically DPSs; the best available scientific and in depleted status may occur. We sought recognized entity, but rather one that is commercial information would not comments regarding different options created under the language of the ESA support listing all of the DPSs now in for construing the relevant provisions of and effectuated through our 1996 DPS order to delist some of them these statutes in harmony; Policy. Because recognition of DPSs is subsequently. Nor would it make sense (7) Whether approach regulations not mandatory, we have some inherent to attempt to first ‘‘delist’’ the species- should be promulgated under the discretion to determine whether a level listing in order to then list some MMPA for the protection of the Hawaii species-level listing should be of the constituent DPSs. Where multiple DPS of the humpback whale because if reclassified into DPSs and what DPSs qualify for listing as endangered or the rule became final as proposed, that boundaries should be recognized for threatened, it would inherently thwart DPS would no longer be listed under the each DPS. At the conclusion of the the statute’s purposes to remove ESA, or whether current protections in listing review process, ESA section protections of the ESA from all members effect in the Hawaiian Islands 4(c)(1) gives us authority to update the of the species even temporarily. The Humpback Whale National Marine lists of endangered species and approach we have taken in this final Sanctuary (at 15 CFR 922.184) are threatened species to conform to our rule ensures a smooth transition from sufficient for the protection of the most recent determinations. This can the former taxonomic species listing of species from vessel interactions. We include revising the lists to remove a endangered to today’s listing of certain indicated that commenters should species from the lists or reclassifying the specified DPSs: Four as endangered and consider the impact of the proposal by listed entity. one as threatened (and nine as not- NOAA’s Office of National Marine Neither the ESA nor our regulations warranted). Sanctuaries to expand the sanctuary explicitly prescribe the process we We will continue to monitor the boundaries and strengthen the approach should follow where the best available status of the entire range of the regulations (80 FR 16224; March 26, scientific and commercial information humpback whale. For any listed DPSs, 2015), which has since been withdrawn indicates that the listing of a taxonomic monitoring is as a matter of course, (81 FR 13303; March 14, 2016); species should be updated and revised pursuant to the obligation to (8) Whether approach regulations in into listings of constituent DPSs. To the periodically review the status of these effect for the protection of humpback extent it may be said that the statute is species (ESA section 4(c)(2)). In whales in Alaska, currently set forth at ambiguous as to precisely how the addition, we will undertake monitoring 50 CFR 224.103(b), should be relocated updated listings should replace the of the DPSs that are not listed as a result to Part 223 (which applies to threatened original listing in such circumstances, of their improved status (consistent with species) for the continuing protection of we provide our interpretation of the ESA section 4(g)). the Western North Pacific DPS, and statutory scheme. The purposes of the whether these regulations should also statute are furthered in certain Summary of Comments be set out in 50 CFR part 216 as MMPA situations where the agency has On April 21, 2015, we solicited regulations for the protection of all determined that it is appropriate to comments during a 90-day public humpback whales occurring in that revise a rangewide listing in order to comment period from all interested area, in light of the fact that the MMPA

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was one of the original authorities cited are required under ESA section 4(c)(2) 1. Persistence of the discrete population in promulgating the regulation; or presented via a petition at any time. segment in an ecological setting unusual or (9) Information related to the unique for the taxon; Comment 2: One commenter stated 2. Evidence that loss of the discrete designation of critical habitat, including that the ESA is only valid within the population segment would result in a identification of those physical or borders of the United States and that significant gap in the range of a taxon; biological features which are essential to consideration of listing or delisting 3. Evidence that the discrete population the conservation of the Western North populations that are not within our segment represents the only surviving natural Pacific and Central America DPSs of borders is meaningless as far as occurrence of a taxon that may be more humpback whale and which may protective status is concerned. abundant elsewhere as an introduced require special management population outside its historic range; or consideration or protection; Response: Section 4 of the ESA 4. Evidence that the discrete population requires that we list any species that we segment differs markedly from other (10) Economic, national security, and determine to be endangered or populations of the species in its genetic other relevant impacts from the threatened, whether it occurs within the characteristics. Because precise designation of critical habitat for the United States or elsewhere. circumstances are likely to vary considerably Western North Pacific and Central Demonstrating a need to secure from case to case, it is not possible to America DPSs of humpback whale; and describe prospectively all the classes of particular protections under the other (11) Research and other activities that information that might bear on the biological sections of the ESA, or that such would be important to include in post- and ecological importance of a discrete protections will be afforded where the delisting monitoring plans for the West population segment. species is found, is not a precondition Indies, Hawaii, Mexico, Brazil, Gabon/ The DPS Policy was adopted following a to listing. While it is true that fewer Southwest Africa, Southeast Africa/ period of public comment and is the protections apply under the ESA for Madagascar, West Australia, East Services’ definitive interpretation of ‘‘distinct foreign species, important protections population segments.’’ See Northwest Australia, Oceania, and Southeastern do apply. All persons subject to the Ecosystem Alliance v. U.S. Fish and Wildlife Pacific DPSs. jurisdiction of the United States Service, 475 F.3d 1136, 1143 (9th Cir. 2007) We received 225 comment letters on (including its citizens) must comply (holding that the DPS Policy is entitled to the proposed rule. One of the with section 9 of the ESA, which, deference as a duly promulgated, binding commenters attached a form letter that policy). Therefore, discreteness alone is not among other things, makes it unlawful was signed by 13,279 members, as well sufficient for identifying a population as a to import endangered species into the as 539 letters that were modified DPS. United States or to export them from the versions of the same form letter. United States, or to ‘‘take’’ endangered Comment 4: Several commenters Another commenter sent a letter, species within the territorial sea of the supported identifying DPSs, but including signatures from 3,464 U.S. United States or upon the high seas (16 recommended that populations in individuals and 4,046 individuals from U.S.C. 1538(a)(1)(A)–(C)). These different feeding areas be identified as foreign countries. We also held four protections may be extended to DPSs separately from breeding public hearings in Honolulu, HI; Juneau, threatened species through a rule issued population DPSs in order to support AK; Plymouth, MA; and Virginia Beach, under section 4(d). In addition, listing species diversity, as is done under the VA, at which 13 members of the public provides important educational benefits. MMPA in some cases. One of these provided testimony. commenters supported our decision to Summaries of the substantive public Comment 3: One commenter identify DPSs because they agree that comments received, and our responses, questioned the ‘‘significance’’ criterion humpback whales should not be listed are provided below, organized by topic. of the DPS Policy, asserting that if a under the ESA as a global species, nor population is discrete from other solely as three sub-species. This Comments on Topics That Apply to populations, it should qualify as a DPS. Multiple DPSs commenter also understood the Response: As noted earlier, the rationale for initially focusing on Comment 1: One commenter stated Services published the Policy Regarding distinct breeding stocks, as well as the that NMFS initiated an ESA status the Recognition of Distinct Vertebrate mandate to apply DPSs sparingly. review of the humpback whale in 2009 Population Segments Under the The commenters were nevertheless and asserted that it has yet to be Endangered Species Act in 1996 (61 FR concerned that the proposed set of DPSs completed. The commenter added that 4722; February 7, 1996). To be may not be adequate to maintain species the findings are likely to shed new light considered a DPS, a population must be diversity in light of humpback whale onto the population status of humpback both discrete from the remainder of the ecology, suggesting that humpback whale DPSs in the North Pacific. species to which it belongs and whales exhibit strong fidelity to feeding Response: We initiated an ESA status significant to the species to which it grounds as well as breeding grounds. review in 2009 and completed it in 2015 belongs. The DPS policy states: This commenter noted that individuals (Bettridge et al. 2015). We relied upon If a population segment is considered that interbreed return reliably to their the status review report to make our discrete under one or more of the above own discrete feeding areas, and these conclusions about the humpback whale conditions, its biological and ecological can be widely separated across ocean DPSs and their status under the ESA. significance will then be considered in light basins. The commenter asserted that we More recent information available since of Congressional guidance (see Senate Report have previously indicated that if the report’s publication and since 151, 96th Congress, 1st Session) that the humpback whales were to be extirpated publication of the proposed rule was authority to list DPS’s be used ‘‘ * * * on one North Atlantic feeding ground considered during development of this sparingly’’ while encouraging the then that area would not be re-colonized final rule. If we become aware of new conservation of genetic diversity. In carrying within a management-relevant time out this examination, the Services will information at a later date that may consider available scientific evidence of the frame (Waring et al. 2000), stating that affect our understanding of the DPSs’ discrete population segment’s importance to this rationale was used to redefine the status, we can initiate a new status the taxon to which it belongs. This MMPA management unit for stock review. New information can also be consideration may include, but is not limited assessment from the Western North evaluated during the 5-year reviews that to, the following: Atlantic to the Gulf of Maine (Waring et

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al. 2000). The commenter strongly available scientific and commercial and ‘‘the rest of’’ Oceania (i.e., Vanuatu agreed with this view and management information and considering what and Tonga) (Garrigue et al. 2011). action and believed that the same management approach best furthers the Response: We appreciate the citations rationale applies to the preservation of purposes of the ESA as concerns that for studies not included in the status species range and diversity under the species. review report or in the proposed rule. ESA. Comment 5: One commenter Some of these papers were published Furthermore, the commenter stated, recommended that we identify after the BRT had substantially there are significant genetic differences demographically independent completed drafting its status review among feeding grounds in both the populations as DPSs in the Southern report. We have carefully reviewed each North Atlantic and the North Pacific Hemisphere because this has publication, and all available (PalsbNew Caledonia Endangered Species, and Marine discusses the ‘‘known connections as evidence that the whales share a Mammals in February 2006 to discuss between eastern Australia and the migration corridor: ‘‘Breeding the differences among stocks under the westerly component of Oceania (New population in New Caledonia and east MMPA, fisheries stocks under the Caledonia, Tonga and New Zealand).’’ Australia are separate but some overlap Magnuson-Stevens Act, and DPSs under Clearly, this commenter asserted, some between the populations occurs: some the ESA (NMFS 2008). We concluded of these East Australia animals are whales bound for New Caledonia use that DPSs can encompass multiple mixing with breeding stocks included in the same migratory pathways as some MMPA stocks because of the the Oceania DPS. This commenter whales headed past east Australia’’ significance criterion of the DPS policy. added that there has also been a (Bettridge et al. 2015 at 25). The DPSs can be identified at different documented interchange between Garrigue et al. (2011) study cited by the hierarchical levels, and we determine humpbacks in New Caledonia and commenter discusses only 7 matches the DPS configuration that makes the Eastern Australia at the same rate of between Eastern Australia and Oceania, most sense after evaluating the best exchange seen between New Caledonia which is a small number. Similar

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movements occur between the Hawaii Humane Society v. Jewell, ‘‘the creation understand the function of the status and Mexico DPSs. or initial designation of a DPS operates review report prepared by the BRT as it Further, the possibility that a as a one-way ratchet to provide ESA relates to our listing determinations. population could be a candidate for protections to the covered vertebrates’’ Convening a BRT to compile the best ‘‘delisting’’ if it were identified as a DPS (Humane Society of the United States v. available information about the species’ is not one of the DPS policy criteria and Jewell, Case 1:13-cv-00186–BAH (D.D.C. status is an optional process that helps is not otherwise an appropriate Dec. 19, 2014). This commenter also inform, and does not supersede, the consideration. The ESA requires that we cited Friends of the Wild Swan v. U.S. agency’s listing determinations. The base our listing determinations solely on Fish and Wildlife Service, 12 F. Supp. BRT does not make decisions in its the best available scientific and 2d 1121, 1133 (D. Or. 1997), and report. We, NMFS, take into commercial data. In conclusion, we do Defenders of Wildlife v. Norton, 239 F consideration the information provided not agree with the commenters that the Supp. 2d 9, 2 (D.D.C. 2002). They by the BRT in the status review report, Gabon/Southwest Africa DPS, the suggested that Federal courts have come but must also independently evaluate Southeast Africa/Madagascar DPS, East to the same conclusion (quoting the that information in light of all factors Australia DPS, or Oceania DPS should Friends of the Wild Swan decision): ‘‘As that govern listing. We thus evaluated be further divided into smaller DPSs at USFWS’s own population segment the information in the status review this time. policy acknowledges, listing of report and other information that Comment 6: One commenter stated population segments is a proactive became available to us and, after that the ESA should be faithful to its measure to prevent the need for listing considering ongoing conservation name, and afford protection to a species over a larger range—not a efforts, we developed our listing taxonomic ‘‘species.’’ Specifically, the tactic for subdividing a larger determinations. commenter indicated that dividing the population that USFWS has already With regard to our approach to species into populations does not determined, on the same information, identifying DPSs, see Rationale for recognize the biological validity of a warrants listing throughout a larger Revising the Listing Status of a Species species concept. range.’’ The commenter also stated that Under the ESA above. As we explained Response: The ESA provides for a DPS cannot be delisted until after it is in the proposed rule and reaffirm here, identifying and listing different first designated and after the mandatory we have developed a rational approach populations separately. As originally recovery planning process is completed that is consistent with both the statutory enacted, the statute defined ‘‘species’’ to for that particular DPS and that to do framework and our obligation to ensure include—in addition to taxonomic otherwise would shortcut the process that only those species that actually species—subspecies and ‘‘any other designed to ensure public comment and qualify for the protections of the ESA group of fish or wildlife of the same peer review. Finally, this commenter receive its protections. The commenter’s species or smaller taxa in common asserted that NMFS cannot conclude in suggested approach of first listing spatial arrangement that interbreed a ‘‘5-year review’’ that a DPS can be individual DPSs is untenable for the when mature.’’ In 1978, the ESA was reasons we explained in the proposed amended to replace that language with simultaneously designated and delisted because this practice conflicts with the rule and above: Where it is clear by the current language regarding ‘‘distinct direct application of the 4(a)(1) factors population segments’’ (DPSs) in the plain meaning and statutory requirements of section 4(c) of the ESA. that a DPS does not presently qualify for definition of ‘‘species’’ (Pub. L. 95–632 listing, we have no authority to list it This commenter asserted that we (1978)). Congress instructed us to separately. Thus it is simply illogical to apparently recognized the lack of legal exercise this authority with regard to suggest we must list such a DPS in order authority for our decision, so we DPSs ‘‘. . . sparingly and only when the to delist it. By evaluating the species claimed that we were not designating biological evidence indicates that such comprehensively throughout its range DPSs to delist them, but rather dividing action is warranted’’ (S. Rep. No. 96– and assigning listing status to each and the currently listed global population 151 (1979)). In 1996 the Services every DPS, we have taken an approach into 14 separate DPSs, downlisting two published the DPS Policy to define this that best fits the statutory framework of those DPSs, and not proposing to list term. Under the DPS Policy, if a and fulfills our obligation to adjust the ten of those DPSs. This commenter population is both discrete from other original listing to reflect the species’ conspecific populations and significant further asserted that semantics cannot actual circumstances. This approach to the taxon to which it belongs, it is hide our actions, which simultaneously differs significantly from that reviewed considered a DPS, and therefore, is a designate previously unlisted DPSs and in Humane Society of the United States ‘‘species’’ under the ESA. strips the majority of those DPSs of all (HSUS) v. Jewell, 76 F. Supp. 3d 69 For humpback whales, we found that their ESA protections. (D.D.C. 2014) (Western Great Lakes gray the purposes of the ESA would be Response: We must base our listing wolf), appeal docketed, No. 15–5041 furthered by managing this wide- determinations solely on the best (D.C. Cir. Feb. 19, 2015). ranging species as separate units under available scientific and commercial Further, we note that the DPS Policy the DPS authority, in order to tailor data, after considering ongoing does not set forth an interpretation of protections of the ESA to those conservation efforts. Increasing what procedures should be followed in populations that warrant protection. abundance is one key indication that a reclassifying a species-wide listing into Please see our response to Comment 3 species no longer warrants listing (i.e., DPSs. However, the policy states that for more details on the DPS Policy. is not an ‘‘endangered species’’ or a the policy is adopted ‘‘for the purposes Comment 7: Several commenters ‘‘threatened species’’), but it is not the of listing, delisting, and reclassifying stated that increasing abundance does only factor we considered, as we vertebrates . . . .’’ 61 FR 4722 not equate to full recovery, and that it explained in our proposed rule (80 FR (emphasis added). Thus, it does not is premature to delist any DPSs. One of 22304; April 21, 2015 at 22316–22317). provide support for the view that the these commenters suggested that the Rather, we have considered the factors DPS authority may only be used to ESA does not allow us to identify DPSs under section 4(a)(1) in conjunction recognize and list populations. We thus for the purpose of delisting, citing the with the species’ current demographic respectfully disagree with characterizing District of Columbia District Court in information. Further, it is important to the Friends of the Wild Swan case to

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suggest that the Services have no established in the U.S. Final Recovery time the humpback was listed globally authority to consider replacing existing Plan for humpback whales (NMFS 1991) with no recognized DPSs. The plan species-wide listings with DPS listings. (i.e., for populations to achieve 60 focused only on those populations that We note that the facts here are not percent of pre-whaling abundance) were occur in the North Atlantic and North analogous to the agency action reviewed not prioritized in our status review. This Pacific. The relevant DPSs implicated in that case, which involved a petition commenter stated that data on progress by the plan are: West Indies, Cape Verde to list where FWS had initially toward meeting the Recovery Plan Islands/Northwest Africa, Western concluded that listing of the entire abundance goal are now available for North Pacific, Hawaii, Mexico, and species of bull trout was ‘‘warranted but the proposed DPSs in the Southern Central America DPSs. Thus the plan precluded’’ but then, in a revised Hemisphere, as the result of a simply would not apply to the majority decision just a few years later, shifted to Comprehensive Assessment undertaken of the DPSs we now identify. considering listing of individual DPSs by the Scientific Committee of the IWC With regard to using the original without adequately explaining the basis (IWC 2015). Although a similar effort for benchmark for recovery (populations for the shift in approach. Here, we have the North Atlantic produced ambiguous achieving 60 percent of pre-whaling extensively explained that after more results (IWC 2001; IWC 2002), the abundance), where available, estimates than 40 years of listing under the ESA, commenter argues that this was likely of historical abundance can provide the scientific understanding of the due to the same uncertainties about useful context for setting recovery goals population structure of humpback stock structure and population and are likely to be indicative of whales, as well as the variations in the parameters that are a potential concern abundance levels associated with low degree of threats and rates of rebound, in our status review. For the North extinction risk. However, populations have reached the point that there is now Pacific, the commenter notes that there may also be at low risk of extinction at a scientific basis to identify DPSs, and are now more data available on whaling abundance levels below historical that listing each DPS at the appropriate catches (e.g., Ivashchenko et al. 2013) as levels, and accurate estimates of level furthers the purposes of well as population size, structure, and historical abundance are not essential conservation management under the trend (Baker et al. 2013; Barlow et al. for evaluating extinction risk. In the ESA. It is eminently reasonable that, in 2011). The commenter recommended case of humpback whales, the 1991 light of this more developed that we propose that the IWC undertake recovery plan noted that estimates of understanding, the agency has an assessment of the recovery status of historical abundance were highly discretion to manage a population of stocks in that ocean. uncertain and therefore specific 10,000 individuals differently than it Response: As we have explained in numerical targets based on those goals does a population of less than 100 the proposed rule, it is clear that a were not provided in the plan. That individuals. recovery plan represents one potential situation remains true today, despite To the extent this action may be said pathway to improving the status of the additional efforts to summarize to constitute a delisting for the nine populations addressed in the plan, but historical abundance. Because of this DPSs that will not be listed, it is does not establish a binding or the only uncertainty and because a comparison consistent with our regulations at 50 pathway for determining when a species of current to historical abundance is not CFR 424.11(d) because we would be no longer qualifies for protection under necessary for an evaluation of extinction delisting these DPSs on ‘‘the basis of the ESA. The criteria set forth in a risk, the BRT elected to focus its recovery’’ (§ 424.11(d)(2)). As that recovery plan are non-binding proxies extinction risk analysis primarily on phrase is used in the regulations, it for the section 4(a)(1) factors, which are current abundance and trends relative to means that ‘‘the best scientific and the governing considerations that must benchmarks associated with low risk commercial data available indicate that be applied in any determination (See section III/C of Bettridge et al., [the species] is no longer endangered or regarding the listing status of a species. 2015). threatened’’ (§ 424.11(d)(2)). We have The Services (as the designees of the One commenter suggested that we determined, after application of the Secretaries of Commerce and of the should be required to develop a section 4(a)(1) factors, that some of the Interior) retain authority to directly recovery plan particular to each DPS in DPSs do not warrant listing—therefore, apply the section 4(a)(1) factors at any order to preserve opportunities for we find that they are no longer time to determine whether a species public comment and peer review. The endangered or threatened. Delisting continues to warrant protection under development of recovery plans under determinations are to be based on the ESA. The Services are, thus, not section 4(f) of the ESA is a non- consideration of the same factors as bound to apply recovery criteria regulatory process that nevertheless listing determinations (50 CFR developed in a recovery plan (Friends of includes receiving and considering 424.11(b), (c)). The Services may Blackwater v. Salazar, 691 F.3d 428 public comment. The Services solicit directly apply the section 4(a)(1) factors (D.C. Cir. 2012)). This is particularly expert input and peer review of at any time (not just in the context of a true where adequate data do not exist to information used in developing ‘‘5-year review’’) to determine whether determine if the criteria are met, as is recovery plans (See ‘‘Endangered and a species continues to warrant the case here. As we discuss below, we Threatened Wildlife and Plants: Notice protection under the ESA and are not find that it is not possible on the basis of Interagency Cooperative Policy for bound to apply recovery criteria of available information to determine if Peer Review in Endangered Species Act developed in a recovery plan. This is the overall targets or interim goals of the Activities.’’ 59 FR 34270 (July 1, 1994)). discussed further in response to the next plan for those populations the recovery The comment does not cast doubt on comment. plan focused on are met. Further, we our approach here. The ESA does not Comment 8: Some commenters raised find that even if the data were available require that a recovery plan must be the issue of the intersection of this they would not necessarily demonstrate developed before a determination can be process with recovery planning. One that the relevant DPSs should or should made that a species no longer qualifies commenter stated that on pages 59–60 not continue to be listed. for protection under section 4(a)(1). (80 FR 22304; April 21, 2015 at 22317), At the outset, one must note that the Moreover, an opportunity for public our proposed rule explains that the 1991 Recovery Plan did not address all comment and peer review of the original benchmarks for recovery populations of humpback whale; at the information underlying our

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determinations has been made available depends on whether the species is in protections of the ESA. One of the other in connection with our proposed listing danger of extinction or likely to become commenters noted that it is obvious that rule. so within the foreseeable future as a in the past 20 years, the North Pacific With regard to the recommendation result of one or more of the factors humpback whale population, on an that we propose that the IWC undertake described in section 4(a)(1) (See 16 ocean-basin scale, has achieved the an assessment of the recovery status of U.S.C. 1533(a)(1)). If a species is viable interim goal of doubling population stocks in the North Pacific Ocean, we at its current population levels into the size. Another commenter stated that, support any efforts to estimate foreseeable future, it is irrelevant given that we initiated the ESA status population abundance of humpback whether that population level is or is review process just 2 years prior to the whales. However, recommending that not close to its historical levels. two-decade threshold, the commenter the IWC undertake an assessment of the Recovery under the ESA does not believes that it would still be worth recovery status of stocks in the North mean a species has attained its evaluating progress toward that Pacific is beyond the scope of this historical abundance. It simply means management goal of doubling the action. The ESA requires that we base that a species is no longer in danger of population within 20 years. our determinations on the best available extinction throughout all or a significant Response: A recovery plan is not scientific and commercial information. portion of its range or likely to become binding on the Services and does not This standard does not require conduct so within the foreseeable future. represent the only path toward a of new studies, and because we have As we stated under Rationale for determination that a species no longer sufficient data to support our proposed Revising the Listing Status under the warrants protection under the ESA determinations, there is no reason for us ESA and in our response to Comment 8, (please see our response to Comment 8). to defer implementing those decisions to the extent that our action may be While estimated population growth rate until additional information becomes found to constitute a delisting for the has been calculated for six of the 14 available. If additional information nine DPSs not proposed for listing DPSs (but only two of the DPSs in the becomes available at a later time that the under the ESA, it is consistent with 50 North Pacific and North Atlantic, which commenter believes should affect our CFR 424.11(d) because we would be was the focus of the 1991 Recovery determinations, a petition for delisting these DPSs on ‘‘the basis of Plan) based on data since the Recovery consideration of the information could recovery’’ (§ 424.11(d)(2)). As discussed Plan was issued, we do not think the be filed. In addition, we will continue in the proposed rule (80 FR 22304; April available data allow directly evaluating to monitor all DPSs (those that will not 21, 2015), we initially determined, after whether the Recovery Plan criteria have be listed will be monitored under the evaluating abundance and trend been met. The plan was a forward- Monitoring Plan that we are issuing information, the ESA section 4(a)(1) looking document that specified that the today (see Monitoring Plan section factors, and ongoing conservation doubling of the population size was to below), and the listed DPSs are efforts, that ten humpback whale DPSs be over a 20-year period from that point reviewed periodically through the 5- did not warrant listing; therefore, we in time (‘‘within 20 years’’); it would not year review mechanism). found that they were not endangered or make sense to evaluate progress toward Comment 9: Several commenters threatened. The Services have authority a doubled population using data stated that population numbers of to apply ESA section 4(a)(1) factors at collected before the plan was even humpback whales were much higher any time, and we now finalize our developed. As we stated in our historically, and humpback whales will determination that nine of the DPSs do proposed rule, surveys from which not be recovered until they reach pre- not warrant listing. abundance estimates could be estimated whaling numbers (i.e., historical Comment 10: Several commenters in order to estimate population growth abundance, or carrying capacity), and noted that NMFS acknowledges that rate were not separated by 20 years or they should remain listed as surveys of humpback whales have not conducted continuously over that endangered. One commenter argued that spanned 20 years since issuance of the period. To achieve a doubling of the without an agreed upon and established 1991 recovery plan and data are not population would require a 3.5 percent historical population baseline, it is available to evaluate the status of average annual growth rate to occur over impossible to determine if humpback humpback whale populations against the course of 20 years; if the trend is whales in the North Pacific qualify for these goals. Therefore, one commenter only documented for less than 20 years, delisting. In addition, the commenter added, the BRT focused its biological this does not establish that the noted that some geographic areas where risk analysis primarily on recent population is on track to doubling. humpback whales used to be observed abundance trends and whether absolute Further, the BRT concluded (personal do not appear to have been recolonized abundance was sufficient for biological communication, Paul Wade, NMFS, (Gregr et al., 2000). The commenter viability. This commenter asserted that Northwest Fisheries Science Center, stated that Fleming and Jackson (2011) there are a number of populations for BRT member), and we agree, that the concluded that, despite observed which there are 20 years of data against Recovery Plan goal of doubling the positive population trends over the past which to measure growth and, as such, population within 20 years is not an decade, the California-Oregon it is inappropriate to disregard the appropriate proxy for applying the population likely remains well below recovery plan. section 4(a)(1) factors in the context of pre-exploitation size. The commenter also stated that NMFS current abundance for evaluating Response: The suggestion that references the 3.5 percent population extinction risk. One reason this metric humpback whales must remain listed growth rate from the recovery plan for is not an adequate proxy for applying until they reach pre-whaling numbers is some southern ocean DPSs, though the the section 4(a)(1) factors is that if a inconsistent with the relevant legal plan focused only on the North Pacific population approaches carrying standards under the ESA. A listing and North Atlantic populations. This capacity (K), the growth rate will be determination may be made at any time commenter also suggested that there are expected to decrease. A population by directly applying the section 4(a)(1) 20 years of data indicating that the West could have recovered to K, but this factors (please see our response to Indies DPS has not met recovery plan would only be known if the entire 20- Comment 8). Whether a species targets and the agency has instead year period was documented, including qualifies for listing under the ESA proposed to entirely remove the the early time period with the faster

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growth rate. This is why the BRT attributed to the appropriate stock. This We are extending the section 9 decided to rely on absolute population commenter pointed to NMFS’ treatment prohibitions to threatened humpback size as indicating the relative extinction of progeny of naturally spawned adults whales, which at this time includes the risk of each DPS due to small of west coast salmon (all progeny are Mexico DPS, and these same population size alone, with trend protected as ‘‘naturally spawned’’ prohibitions are automatically applied information as supplemental. because offspring of hatchery-born to the endangered Central America DPS. We referenced the 3.5 percent salmon adults cannot easily be Where humpback whales from different population growth rate for some of the distinguished from their wild DPSs mix on feeding grounds, such as DPSs in the Southern Hemisphere, even counterparts (70 FR 37,160; June 28, is the case off the coast of Alaska where though the 1991 recovery plan that 2005, at 37,166)) to show how NMFS the non-listed Hawaii DPS mixes with recommended an interim goal of ensures appropriate levels of protection the listed Western North Pacific and doubling the population size (which for listed species where there is overlap Mexico DPSs, we will continue to work translates to a 3.5 percent average between listed and non-listed with partners to mitigate threats to all annual population growth rate) focused populations. humpback whales, regardless of their on humpback whales in the North The commenter also attempted to ESA listing status, because all whales Pacific and North Atlantic. However, we draw support for protecting all DPSs remain protected under the MMPA. We did not measure population growth rate from the provisions of the statute and recognize the need for an approach that against that 3.5 percent target; we regulations governing recognition of will allow us to determine which DPSs included it only as a point of reference experimental populations, citing: (1) 16 have been affected by directed or as part of our summary of the best U.S.C. 1539(j)(1) and 50 CFR 17.80(a) incidental take or may be affected by available scientific and commercial (‘‘where part of an experimental Federal actions subject to consultation information. The BRT and we evaluated population overlaps with a natural under section 7. As we have for other whether growth rates were increasing, population of the same species . . . species (e.g., Pacific salmon), we will stable, or decreasing as part of the specimens of the experimental likely use a proportional approach to extinction risk analysis, not whether populations will not be recognized as indicate which DPSs are affected by any they were greater than or equal to 3.5 such while in the area of overlap’’; (2) takes based upon the best available percent. To be clear, then, whether a United States v. McKittrick, 142 F.3d science of what DPSs are present, specific DPS’ growth trend was at or 1170, 1174–75 (9th Cir. 1998) (‘‘When depending on location and timing above the interim recovery goals set out experimental and nonexperimental where take occurred. We have not for certain populations in the 1991 populations overlap—even if the finalized this approach, but it will be Recovery Plan did not play a role in our overlap occurs seasonally—section 10(j) fluid and based upon the best available determinations. populations lose their experimental science as it changes with increased Comment 11: The State of Washington status.’’); and (3) H.R. Rep. No. 97–567 understanding. indicated that individuals of the Mexico at 33 (1982), reprinted in 1982 With regard to the commenter’s DPS comprise the majority of humpback U.S.C.C.A.N. 2807, 2833 (legislative suggestion that we protect the Hawaii whales feeding off Washington. A history of section 10(j) stressing that ‘‘in and Mexico DPSs based on similarity of threatened status for the Central the case of the introduction of appearance, we disagree that the America DPS will encourage NMFS and individuals of a listed fish species into authority to list based on ‘‘similarity of others to continue efforts to mitigate a portion of a stream where the same appearance’’ should be invoked here. threats off the west coast. Another species already occurs, the introduced The statute affords discretion to extend commenter expressed concern that specimens would not be treated as an protections to a non-imperiled species creation of the DPS construct ‘experimental population’ separate from based on similarity of appearance only complicates management and dilutes the non-introduced specimens’’). where all three criteria of ESA section the effectiveness of any plan as a species While this commenter believes that 4(e) are met. Specifically, section 4(e) of saving effort. Another commenter stated delisting or downlisting of any DPS is the ESA provides that the Secretary that the status review report did not inappropriate at this time, if a ‘‘may, by regulation of commerce or include information that allows downlisting occurs and NMFS does not taking, and to the extent he deems understanding of the proportion of each retain ESA protections for all DPSs, this advisable’’ treat any species as an stock/DPS along the eastern Pacific that commenter recommends that mortality endangered species or threatened uses the North American feeding areas or injury in a feeding area with mixed (i.e., from California through the breeding stocks be attributed to the species even though it is not listed Aleutians) such that takes might be listed DPS with the most protected under section 4 of the ESA if he finds assigned proportionately to a stock on status unless it can definitively be that: the basis of their proportionate use of determined that it does not belong to (A) Such species so closely resembles in the area as NMFS has done in its that DPS. appearance, at the point in question, a management of lethal takes of mixed Response: Once a DPS is identified, it species which has been listed pursuant to is considered a species under the ESA. such section that enforcement personnel species of pilot whales in the Atlantic. would have substantial difficulty in This same commenter stated that, Listing DPSs separately can complicate attempting to differentiate between the listed even if NMFS determines that the management when DPSs of different and unlisted species; Mexico and Hawaii DPSs are recovered, status mix. In particular, when listed (B) the effect of this substantial difficulty NMFS must retain ESA protections for species mix with non-listed species, it is is an additional threat to an endangered or these DPSs because of similarity of important to ensure that the listed threatened species; and appearance. This commenter noted that species is protected. We have concluded (C) such treatment of an unlisted species mixing of breeding stocks in a single in this final rule that the Mexico DPS is will substantially facilitate the enforcement feeding area complicates any threat threatened instead of ‘‘not warranted,’’ and further the policy of this chapter. analysis and will confound and the Central America DPS is 16 U.S.C. 1533(e). determination of stock identity when endangered instead of threatened This authority allows the Services to anthropogenic mortalities that occur in (please see the Mexico DPS and Central treat a species that is not itself imperiled a mixed feeding area need to be America DPS sections for our rationale). as a listed species for certain purposes

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in very limited situations. Criterion A humpback whales, particularly in these iconic animals. One commenter under section 4(e) of the ESA is met for waters beyond the exclusive economic asserted that NMFS seeks to completely humpback whales because humpback zone (EEZ). Another commenter added delist from the ESA some of the 14 whales from different DPSs are not that the overlap in ranges of many populations it has identified, relying readily distinguishable in areas where populations of humpback whales would largely on a ‘‘speculative’’ approach two or more DPSs overlap. Criteria B provide a perfect excuse for whaling using qualitative information that is and C are not met. There is no incentive nations to hunt protected populations. contrary to the clear mandates of the for people to ‘‘take’’ humpback whales The commenter indicated there would ESA (‘‘The obvious purpose of the and claim they thought they were taking be no way to prove whalers had violated requirement that agencies ‘‘use the best a different species, because there is no the protection, as there would be much scientific and commercial data (legal) trade in those products. confusion as to which population they available’’ is to ensure that the ESA not Therefore, the effect of this substantial were actually hunting in the be implemented haphazardly, on the difficulty in assigning a humpback overlapping territories. Another basis of speculation or surmise’’ whale to a particular DPS does not pose commenter asserted that Japan, Norway, (Bennett v. Spear, 520 U.S. 154 (1997)). an additional threat to the listed DPS. Iceland, former Soviet Republics, and This commenter asserted that we should And finally, treating the unlisted DPS as others have gained votes and allies on not rely on qualitative data to strip ESA a listed DPS will not facilitate the IWC to open up hunting to the larger protections, as ‘‘[T]his is highly risk enforcement of laws against take of baleen whales. The commenter believes prone and an affront to the humpback whales from a listed DPS. that tropical nations, where humpbacks ‘‘institutionalized caution’’ Congress Therefore, we did not propose to protect congregate to calf and mate, can be embodied in the ESA’’ (Tennessee non-listed DPSs of the humpback whale incentivized for votes at the IWC to Valley Authority (TVA) v. Hill, 437 U.S. based on grounds of similarity of support hunting of humpbacks in their 153 (1978)). Several other commenters appearance to listed DPSs and we do waters. Many other commenters stated said that we should use the not find a basis to do so in this final that whaling would start again if precautionary principle when there are rule. However, we note that we changed humpback whales were no longer so many uncertainties in the scientific our listing determination for the Mexico protected under the ESA. data (e.g., unknown trends for several DPS, and, as noted above, we are listing Response: We are confident that DPSs; unknown effects of climate it as a threatened species under the ESA whaling will not resume as a result of change, contaminants, and harmful algal and extending the section 9 prohibitions not including nine humpback whale blooms (HABs); transfer rates of to the DPS so that it will be protected DPSs on the ESA List of Endangered contaminants to calves; chronic, under the ESA. and Threatened Wildlife. The IWC’s sublethal impacts of contaminants). Finally, in response to the comments commercial whaling moratorium Another commenter asserted that citing to the statutory and regulatory implemented by the IWC in 1986 NMFS’ proposed rule was not based on provisions of section 10(j) and related remains in effect as a needed the best available science as NMFS case law, we note that the authority to conservation measure for whale stocks failed to consider a number of scientific designate experimental populations is worldwide. We have no indications that reports published after 2011. completely separate from making listing the status quo will be changed, and thus Response: We are required to base our determinations under section 4. That conclude on the basis of the best decisions solely on the best available authority is designed to allow the available scientific and commercial scientific and commercial data, a Services to introduce or reintroduce information that the commercial standard that does not require certainty. species to areas where they do not whaling moratorium will continue to be The use of qualitative data is currently occur. We are not proposing to in effect for the foreseeable future. In appropriate if they are the best take such an action here, and there is no addition, the humpback whale is available. We have quantitative basis to conclude that Congress currently an Appendix I species under abundance estimates for each humpback intended the specific provisions relating the Convention for International Trade whale DPS, although some of these to the 10(j) authority to apply more in Endangered Species of Wild Fauna estimates are associated with large broadly. Had Congress intended that and Flora (CITES), which restricts confidence intervals (meaning that there result, it could have chosen to do so international trade and provides an is relatively less certainty as to their explicitly, but it did not. Thus the additional layer of protection against accuracy when compared to estimates portions of the comments relating to resumed whaling. Regarding scientific with small confidence intervals). While 10(j) are simply not relevant or whaling, there are currently no we have quantitative trend information informative here. countries hunting humpback whales for for some DPSs, we do not have it for Comment 12: One commenter noted scientific research and we have no others, though for most we have at least that humpback whales migrate between information to indicate there are plans a qualitative estimate. Regardless of the equator and the poles and that, to do so in the foreseeable future. whether the data are quantitative or therefore, no population of whales Regarding subsistence whaling, we have qualitative, we must use our best around the globe is entirely protected no reason to believe that the small professional judgment to determine within the borders of any one country. number of West Indies DPS humpback whether a species meets the definition Regardless of their protected status in whales killed for subsistence (see our of an ‘‘endangered species’’ or a the United States, this movement leaves response to Comment 42) will increase ‘‘threatened species.’’ When new data protected animals vulnerable to hunting because the DPS is not listed. become available, we can reinitiate a as they migrate across the borders of Comment 13: Many commenters status review on our own or in response whaling countries. Several commenters asserted that it is premature to remove to a petition. New information can also argued that delisting of any humpback ESA protections from some humpback be evaluated during the 5-year reviews whale populations by the United States whale populations, as the research that are required under ESA section will weaken the perception of their needs to be updated (e.g., address 4(c)(2). protected status, and signal to other questions about population abundance, With regard to whether the countries that the United States trends and risks), and a precautionary ‘‘precautionary’’ approach should be approves and encourages hunting approach should be taken to protecting applied and whether that should lead to

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retaining the species’ current listing point in time where the search for new populations retain ‘‘depleted’’ status status for each DPS, section 4 of the ESA information pauses while the under the MMPA, below. requires that we base listing information already possessed is Comment 15: Canada’s Department of determinations solely on the best analyzed and reviewed. It would be Fisheries and Oceans (DFO) commented available scientific and commercial unreasonable to expect that the BRT was that, in 2003, the Committee on the data. It is well established that this searching the literature during the entire Status of Endangered Wildlife in Canada standard does not require certainty in time between initiation of the status (COSEWIC) assessed the western North the data supporting the agency’s review and issuance of the final status Atlantic humpback whale population as decision but instead charges NMFS to review report. The BRT was presented ‘‘not at risk,’’ which is consistent with apply professional judgment to identify with a draft compilation of available NMFS’ proposed designation for the significant uncertainties and determine literature when it first convened, and West Indies DPS from which the how to proceed in light of them. the team members were tasked to Canadian western North Atlantic Moreover, where the fundamental update that compilation at a point prior population derives. In 2003, COSEWIC question of whether a species meets the to completion of the draft report. Once assessed the North Pacific humpback foundational tests for requiring the the BRT had substantially completed its whale population as ‘‘threatened,’’ and ESA’s protections under section 4(a)(1) draft report, NMFS reviewed the BRT in 2005 the population was listed as is at issue, the context is significantly findings and developed the proposed such under Canada’s Species at Risk Act different from cases arising under other rule. Our proposed rule invited (SARA). COSEWIC reassessed this provisions of the ESA, such as section comment and submission of any population as ‘‘special concern’’ in 2011 7 consultations, where legislative additional, relevant information for and confirmed the ‘‘special concern’’ history and case law indicate that consideration in development of the status of this population in 2013. In significant uncertainties should be final rule. This iterative process ensures response to this ‘‘special concern’’ resolved against action agencies. Thus, that all available information is assessment, the North Pacific humpback the commenter’s citation to TVA v. Hill considered for the final rule. whale population is being considered (437 U.S. 153 (1978)) is not pertinent. Further, the Monitoring Plan that we for reclassification as ‘‘special concern’’ Congress vested NMFS ‘‘with discretion are implementing for those DPSs that do under SARA. Humpback whales from to make listing decisions based on not warrant listing helps ensure these the proposed Hawaii, Mexico, and consideration of the relevant statutory DPSs are managed appropriately in light Central America DPSs contribute to the factors using the best scientific of all threats, including those that may population that frequents Canadian information available’’ (Trout Unlimited worsen. For any DPSs that are listed, waters. The proposed ‘‘not at risk’’ v. Lohn, 645 F. Supp. 2d 929, 947 (D. monitoring is as a matter of course, status for the Hawaii and Mexico DPSs Or. 2007)). pursuant to the obligation to is lower than the current (threatened) or Each of our determinations is periodically review the status of these potential (special concern) SARA status supported by the best available species (ESA section 4(c)(2)). Finally, of the Canadian North Pacific humpback scientific and commercial information, though not directly relevant to our whale population. Therefore, the and we have evaluated the data for each listing determinations, we note that the proposed ‘‘not at risk’’ designation for particular DPS carefully and non-listed DPSs will continue to be the Hawaii and Mexico DPSs would not deliberately. While there are some protected under the MMPA. offer the species the current or potential uncertainties in the data—as there Comment 14: Many commenters level of protection in Canada. The almost always are in every case of requested that we keep all humpback proposed status of ‘‘threatened’’ for the scientific information—we have whale populations listed under the ESA, Central America DPS aligns with the identified the relevant, significant as MMPA protection may not be North Pacific Humpback Whale current uncertainties, discussed them, and effective if ‘‘delisting’’ is perceived as designation as ‘‘threatened’’ under explained our decisions in light of them. ‘‘no longer protected.’’ These SARA. Where those uncertainties are commenters said that population Response: We appreciate the detailed particularly significant, we have erred numbers may have increased, but they information provided by Canada’s DFO. on the side of retaining protections for may not stay at a safe population size While it may appear that the status the DPS (and, in the case of the Western because of noise, water pollution, categories under the ESA North Pacific, Mexico, and Central climate change, vessel collisions, and (‘‘endangered,’’ ‘‘threatened,’’ America DPSs, have increased the level habitat destruction. ‘‘candidate,’’ and ‘‘not warranted’’) of protection from that in our proposed Response: Regardless of whether they correlate to those under the SARA rule). Indeed, one commenter expressed are also listed under the ESA, marine (‘‘endangered,’’ ‘‘threatened,’’ ‘‘special the opposite concern from that raised by mammals are protected under the concern,’’ and ‘‘not at risk’’), the ESA this commenter, accusing NMFS of MMPA. The MMPA’s provisions and SARA use different criteria to assess ‘‘abusing’’ the precautionary approach include prohibitions on take in U.S. the status of species. Therefore, a by listing the Western North Pacific DPS waters and by U.S. citizens on the high species listed as ‘‘threatened’’ under the (see response to Comment 44). seas. We based our listing ESA might not be at the same level of In response to the comment that the determinations on the best available extinction risk as one listed as proposed rule did not rely on the best data, including an evaluation of ‘‘threatened’’ under SARA. However, we available information because we had available information on threat levels. recognize that the Hawaii DPS will not not yet considered certain scientific Where we are not listing a DPS as be protected under the ESA in U.S. papers published after 2011, this threatened or endangered, it is because waters or on the high seas (with respect comment fails to take into account the we have determined that, based on the to U.S. citizens) and it will be protected important information-gathering and best available data, the DPS is not in in Canadian waters (until the Canadian consideration that takes place during danger of extinction throughout all or a North Pacific population is reclassified the public comment period as well as significant portion of its range or likely as ‘‘special concern,’’ if this happens). the iterative nature of agency to become so within the foreseeable All humpback whales will continue to decisionmaking. In all scientific future. We discuss the related issue of receive significant protection from decisionmaking, there must come a whether the previously listed taking under the MMPA in U.S. waters

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and by U.S. citizens on the high seas. LEXIS 45753, *49 (D. Idaho Aug. 19, percent chance of extinction in y years); And while we did not propose to list the 2005) for the proposition that it is they do not refer to the foreseeable Mexico DPS as threatened or inappropriate to evaluate ‘‘high risk of future as used under the ESA. As endangered and we proposed to list the extinction’’ over the ‘‘foreseeable explained above, the ‘‘foreseeable Central America DPS as threatened, we future.’’ The commenter states that this future’’ is generally defined for each are now listing the Mexico DPS as focus on current threats also fails to species based on how far into the future threatened and the Central America DPS recognize that, while the definition of a we may reliably project individual as endangered (please see the Mexico ‘‘threatened’’ species is necessarily threats as well as the species’ response DPS and Central America DPS sections). forward-looking, so, too, is the to those threats. Here, for the reasons Canada’s DFO is correct that the Central definition of an ‘‘endangered species.’’ already explained, 60 years was America DPS will receive essentially the Simply put, a species ‘‘in danger’’ of articulated by both the BRT and NMFS same protections under both the ESA extinction is not currently extinct. as the appropriate timeframe. and SARA. The Mexico DPS will, too, Rather, it is a species facing a risk of Even if equivalency in ‘‘foreseeable because we are extending the section 9 extinction in the future. future’’ determinations among species prohibitions to threatened humpback Response: The commenter’s with similar life history traits was whales. suggestion that it is improper to use required, there is no basis to compare Comment 16: Several commenters different time periods for different the foreseeable future for humpback expressed support for our decision to listing determinations or recovery plans whales with any ‘‘foreseeable future’’ for list the Western North Pacific DPS and (the latter of which are not binding the Cook Inlet beluga whale, North Central America DPS (as threatened) regulatory documents) misunderstands Pacific right whale, and North Atlantic and to list the Arabian Sea and Cape the nature of the determination of right whale because we did not define Verde Islands/Northwest Africa DPS (as ‘‘foreseeable future.’’ As we explained foreseeable future periods for any of the endangered). in the proposed rule and summarized in latter three species. Our extinction risk Response: We acknowledge the the introductory paragraphs of this final analyses for these species concluded commenters’ support. Please see the rule, the concept of the ‘‘foreseeable that these species were all endangered; Western North Pacific DPS, the Mexico future’’ must be determined and applied thus, we did not need to define DPS, and the Central America DPS specifically for each species undergoing foreseeable future for these species; the sections for our rationale for listing the a status review or listing determination ‘‘foreseeable future’’ concept is relevant Mexico DPS as threatened and for under the ESA in order to consider only to consideration of ‘‘threatened’’ reaching the determination of whether a species is a threatened status, which is unnecessary where we ‘‘endangered’’ for the Western North species. See, e.g., In re Polar Bear have determined the species meets the Pacific and Central America DPSs. Endangered Species Act Listing and 4(d) higher standard for ‘‘endangered.’’ The Comment 17: One commenter stated Rule Litigation, 794 F. Supp. 2d 65, 95 100-year period the commenter refers to that NMFS’ proposal is not based on the (D.D.C. 2011) (‘‘As with the term is simply one of two timeframes over best available science because it fails to ‘likely,’ Congress has not defined the which we estimated the risk of properly define and analyze the risk of term ‘‘foreseeable future’’ under the ESA extinction for the Cook Inlet beluga extinction in the foreseeable future. The . . . .’’). Instead of using an inflexible whale (the other timeframe was 300 commenter asserted that there are two quantitative standard, ‘‘a ‘foreseeable years) in the context of a population problems with our approach to future’ determination is made on the viability analysis. Neither we nor the weighing extinction risk: (1) Improper basis of the agency’s reasoned judgment BRT mentioned a 100-year time period use of a 60-year timeframe for risk in light of the best available science for in any context in the North Atlantic and assessment; and (2) failure to properly the species under consideration.’’ id. North Pacific right whale status reviews, apply the chosen 60-year time frame. In its status review report, the BRT proposed listing rule, or final listing The commenter stated that, in prior determined that 60 years was the determination. There is no requirement listing decisions and recovery plans for appropriate time period over which it that the same time period used to whale species, NMFS consistently uses could reasonably predict the humpback forecast effects as a matter of scientific longer time frames to evaluate whale’s responses to threats. We agreed modeling must be chosen as the extinction risk, generally 100 years. In with the BRT’s rationale and thus ‘‘foreseeable future’’ for the listing the case of both North Atlantic and adopted the 60-year period as the determination for that species. North Pacific right whales, the ‘‘foreseeable future’’ for this listing Determining the appropriate commenter argued, 100 years was used, determination. Nothing the commenter ‘‘foreseeable future’’ for a listing and this was based on conclusions from cites undercuts the basis for the decision involves the professional a large whale recovery criteria workshop foreseeable future identified for this judgment of the resource managers, who (Angliss et al. 2002). The commenter rulemaking. The 1991 Recovery Plan for must determine at what point it is no suggested that NMFS provided no the Northern Right Whale (Eubalaena longer reasonable to make official explanation or justification for the glacialis) (NMFS 1991) included several predictions about threats and the foreseeable future used in this criteria for reclassification from species’ response. Thus, while a rulemaking. The commenter suggests ‘‘endangered’’ to ‘‘threatened,’’ one of particular period may have been chosen that, despite claiming to analyze future which was that the species has less than to underlie a PVA in order to generate impacts, the threats analysis references a 1 percent probability of going extinct useful information, that same period ‘‘current’’ risks, but contains no analysis in 100 years. Similarly, it included will not necessarily be equivalent to the of the risk of extinction posed by several criteria for delisting, one of foreseeable future adopted for the reasonably foreseeable future impacts. which was that the species has less than ultimate listing decision. Indeed, it is The commenter also suggests that the a 10 percent probability of becoming not required that the foreseeable future extinction risk approach improperly endangered in 25 years. The timeframes be quantified as a specific number of ‘‘raised the bar’’ for the threatened of 100 years and 25 years as used in the years at any point for any listing category and cites to the unreported large whale recovery criteria workshop decision. decision in Western Watersheds Project referred to by the commenter are part of Recovery criteria remain case-specific. v. Foss, No. CV–04–168, 2005 U.S. Dist. a population viability analysis (x Further, there is no requirement under

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the ESA to define extinction risk in DPSs.) We agree with the commenter Comment 19: Several commenters quantitative terms; there is ‘‘nothing in that the definitions of ‘‘threatened’’ asserted that we underestimated the the text or structure of the statute to species and ‘‘endangered species’’ are risks of oil spills to humpback whales. compel the conclusion that Congress forward looking (i.e., a species ‘‘in Response: We do not agree that we intended to bind the agency to a danger’’ of extinction is not currently underestimated the risks of oil spills to particular formula for determining when extinct; rather, it is a species facing a humpback whales. We discussed this a species is ‘in danger of extinction.’ ’’ risk of extinction at an undefined point risk in our proposed rule (80 FR 22304; In re Polar Bear Endangered Species Act in the future). We did consider that the April 21, 2015 at 22321), concluding Listing and 4(d) Rule Litigation, 748 F. threats we can reliably predict will act that long-term ingestion of pollutants, Supp. 2d 19, 27 (D.D.C. 2010). Rather, on the species within the foreseeable including oil residues, could affect ‘‘[t]he overall structure of the ESA future. reproduction, but that data are lacking suggests that the definition of an Comment 18: One commenter stated to determine how oil may fit into this endangered species was ‘intentionally that the ESA is enforced in U.S. waters, scheme for humpback whales. The left ambiguous,’ ’’ and ‘‘Congress and that other countries recognize and effects of oil spills are generally broadly delegated responsibility to the respect this and may assign statuses associated with low probabilities of Secretary to determine whether a under their acts. The commenter occurrence, and are generally localized species is ‘in danger of extinction’ in asserted that other status classifications, in nature. Documented impacts from light of the five statutory listing factors such as the International Union for these activities in the past have been and the best available science for that Conservation of Nature (IUCN), are minimal. Therefore, we do not believe species.’’ Id. likely to be removed in response to that we have underestimated the risks of Under the ESA, in order to list a removing humpback whales from the oil spills, and we have accurately species as threatened, we must conclude ESA list. portrayed the effect of oil and gas that the species is likely to become in Response: The ESA is enforced in activities on the status of the species danger of extinction throughout all or a U.S. waters and on the high seas for within the foreseeable future. Comment 20: One commenter noted significant portion of its range within persons subject to U.S. jurisdiction. The that humpback whales off Southern the foreseeable future. For the ESA requires us to make our California and Asia are known to have humpback whale, the BRT and NMFS determinations in accordance with the high levels of defined the foreseeable future as 60 best available scientific and commercial dichlorodiphenyltrichloroethane, years. The classifications used by the information without regard to what BRT for its extinction risk assessment polychlorinated biphenyls, and other other countries might do with regard to appropriately maintained the temporal persistent organic pollutants (Elfes et al. conservation status of species under distinction between risk that currently 2010). their jurisdiction. With regard to IUCN, exists and risk that will become Response: We considered Elfes et al. species classifications under the ESA manifest within the foreseeable future. (2010), but when this information is and the IUCN Red List are not Here, the BRT specifically defined the combined with all of the other equivalent. Data standards, criteria used ‘‘high risk of extinction’’ category to information presented on contaminants to evaluate species status, and treatment measure near-term risk, while the in the status review report (Bettridge et of uncertainty are not considered ‘‘moderate risk of extinction’’ category al. 2015 at 41–42), we agreed with the similarly, and the legal effect is not the incorporates the foreseeable future BRT that the severity of this threat was (Bettridge et al. 2015 at 67–68). The same. low in all regions, except where lack of commenter is thus flatly incorrect in the Unlike the ESA, the IUCN Red List is data indicated a finding of unknown. suggestion that the BRT or NMFS not a statute and is not a legally binding Even where the extent of risk is conflated the threatened category with or regulatory instrument. It does not unknown, it is not enough to place any the endangered category, and the include legally binding requirements, DPS in danger of extinction presently or citation to Western Watersheds Project prohibitions, or guidance for the within the foreseeable future. v. Foss is inapposite. protection of threatened (i.e., critically Regardless, we are listing the Western When we reviewed the BRT’s endangered, endangered, or vulnerable) North Pacific and Central America DPSs extinction risk conclusions, and then taxa (IUCN 2012). Rather, it provides as endangered and the Mexico DPS as evaluated ongoing conservation efforts taxonomic, conservation status, and threatened for other reasons (see the as we are required to do, we agreed with distribution information on species. The Western North Pacific DPS, Mexico the BRT’s conclusions. For those DPSs IUCN Red List is based on a system of DPS, and Central America DPS sections that the BRT determined were at categories and criteria designed to for our rationale). These are the DPSs ‘‘moderate risk of extinction,’’ we determine the relative risk of extinction that occur off Southern California and generally concluded that the DPSs were (http://www.iucnredlist.org/about/ Asia. likely to become endangered over the introduction), classifying species in one Comment 21: One commenter stated next 60 years (threatened). For those of nine categories, as determined via that the ESA section 4(a)(1) factors must DPSs that the BRT concluded were at quantitative criteria, including be addressed before a species can be ‘‘high risk of extinction,’’ we generally population size reductions, range delisted. For example, the commenter concluded that the DPSs were in danger reductions, small population size, and noted, contaminants were given a risk of extinction currently (endangered). quantitative extinction risk. Whether the score of ‘‘low’’ or ‘‘none’’ for both the (However, for this final rule we have IUCN removes status classifications as a Mexico and Central America DPSs, both applied greater levels of protection than result of an ESA listing determination is of which are acknowledged to feed off the BRT votes would predict for three not relevant to the ESA’s requirement the coast of California. However, the DPSs. Please see our rationale for that we base listing determinations commenter continued, the text of the reconsidering our listing determinations solely on the best available scientific status review report cites data indicating for the Western North Pacific (Western and commercial data. that ‘‘contaminant levels have been North Pacific DPS section), Mexico Having said this, the IUCN classified proposed as a causative factor in lower (Mexico DPS section), and Central the humpback whale as ‘‘least concern’’ reproductive rates found among America (Central America DPS section) in 2008. humpback whales off Southern

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California.’’ Another commenter outreach that may be contributing to the humpback whale population, and a low pointed to the increased number of 2015 numbers. However, the fact is that or unknown threat for all other DPSs fishing gear entanglements off the number of reported fishing gear (Bettridge et al. 2015 at 56). California, Oregon, and Washington in entanglements have increased, and Comment 23: Many commenters 2015 as cause for concern for the therefore, we continue to view this expressed concern about whale watch Mexico and Central America DPSs. threat as posing a moderate risk to the vessels approaching humpback whales Response: While it is true that Mexico and Central America DPSs. too closely or at high speeds. One individuals from both the Mexico and Comment 22: Several commenters commenter asserted that some of the Central America DPSs feed off the coast stated that prey depletion in terms of worst harassment is currently seen of California, we are not aware of any competition from fisheries is a within marine sanctuary areas because evidence to indicate that either of the significant threat to humpback whales. of lack of enforcement, and that this DPSs is being negatively impacted Response: We have no evidence of results in displacement of humpback because of lower reproductive rates. We prey depletion contributing significantly whales through disturbance, cited data indicating that ‘‘contaminant to the extinction risk of any DPS of the harassment, and the abandonment of levels have been proposed as a causative humpback whale. It is conceivable that areas by the whales. The commenter factor in lower reproductive rates found reduction of forage fish could cause provided examples of harassment from among humpback whales off Southern shifts in the feeding range of humpback whale watchers a few miles out of Auke California’’ (Steiger and Calambokidis whales to areas with more threats from Bay off Juneau, AK, off Maui, HI, and in 2000), but we also added that, ‘‘at fishing gear, commercial shipping, or Stellwagen Bank in MA. This present the threshold level for negative areas not under U.S. jurisdiction. commenter urges us to maintain ESA effects, and transfer rates to calves, are However, we have no information to protections for humpback whales. unknown for humpback whales’’ and indicate that the fish species that Response: Stellwagen Bank National ‘‘[t]he health effects of different doses of humpback whales prey upon are Marine Sanctuary (SBNMS) is working contaminants are currently unknown for reduced in number or will be reduced with NMFS and other sanctuary humpback whales (Krahn et al. 2004c).’’ in number in the foreseeable future to partners to educate the public, deter While Steiger and Calambokidis (2000) the point where the feeding ranges of harassment, and encourage responsible clearly state that contaminants could be humpback whales are changing. stewardship among whale watchers in one of several possible causes of the In Alaska, for example, herring are the the sanctuary, including through observed lower rates of reproduction only forage fish species with a directed development of whale watching amongst these whales (which are still fishery, unless we consider juvenile guidelines for Atlantic waters off the increasing, just not as rapidly as other pollock and salmon (the only life stage northeast United States, implementation groups), they do not point to of these fishes that humpback whales of a citizen science program in contaminants as the primary or sole eat), which have fisheries targeting the collaboration with the U.S. Coast Guard cause; they actually indicate that adults and not the juveniles. Krill are auxiliary, and the joint enforcement mysticetes are thought to have lower probably the dominant prey item for agreement between NOAA’s Office of exposure to contaminants such as humpback whales in Alaska, and have Law Enforcement (OLE) and the State of hydrocarbons than pinnipeds and no directed harvest. Herring fisheries in Massachusetts. odontocetes. We do not have much Alaska are managed with a fairly In addition to establishing regulations information from recent humpback conservative guideline harvest rate and that prohibit vessels from approaching whale strandings that could shed light a minimum biomass threshold before within 100 yards of a whale in on either contaminant loads or their fishing is permitted. In Prince William sanctuary waters, the Hawaiian Islands possible effects on reproduction. We Sound, we found that humpback whales Humpback Whale National Marine will continue to monitor the health of were consuming 15–20 percent of the Sanctuary (HIHWNMS) has a number of humpback whales, whether they are pre-spawning biomass of herring; this outreach programs designed to increase listed under the ESA or not. rate is sustainable and roughly what the awareness of humpback whales and to Regarding the higher number of whale fishery would take, if the fishery were reduce harassment by interactions with entanglement reports made in 2015 off open. Humpback whales in Prince ocean users, including ocean awareness California, Oregon, and Washington, William Sound appear to be the most and ocean etiquette training that this may be attributable to changes in herring-focused whales in Alaskan educates both the general public and the number and distribution of whales waters based on diet analysis, and likely commercial whale watch operators in in recent years, and/or changes in the represent the high end of humpback the region. HIHWNMS has also distribution of fishing and other human whale dependency on herring. convened a standing Sanctuary activities, which are, in part, influenced The BRT discussed the high level of Interagency Law Enforcement Task by environmental conditions. We are fishing pressure in the region occupied Force to coordinate enforcement of the working to better understand and by the Okinawa/Philippines portion of humpback whale approach regulation predict how all these factors may be the Western North Pacific DPS (a small by state and Federal law enforcement impacting whales off the west coast. humpback whale population). Although partners. We believe these efforts will Broader public awareness may also be specific information on prey abundance help reduce the threat of whale contributing to the recent increase in and competition between whales and watching and increase enforcement and entanglement reports. Increasing fisheries is not known in this area, compliance with whale watching awareness about whale entanglements overlap of whales and fisheries has been guidelines and vessel approach and available reporting mechanisms is a indicated by the bycatch of humpback regulations. focus of our outreach. We have also whales in set-nets in the area. The BRT We continue to work with the whale been working with trained and determined that competition with watch industry to ensure that vessels do authorized responders along the west fisheries is a medium threat to the not approach humpback whales too coast to increase their capacity to Okinawa/Philippines portion of the closely through vessel approach respond to entanglement reports and Western North Pacific DPS (which will regulations in Hawaii and Alaska, and train new responders in reporting and be listed as an endangered species), vessel speed rules in the North Atlantic. response techniques—additional given the high level of fishing and small In fact, in two separate notices

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published elsewhere in today’s issue of whales typically feed in cooler Alaskan certainly increase, but not in the the Federal Register, we are: (1) waters during the spring, summer, and foreseeable future.’’ Promulgating a direct final rule making fall months (Baker et al. 1986). There While it is important to continue minor technical corrections to and may be resident populations of monitoring humpback whale health, we recodifying the Alaska approach humpback whales in the southeastern cannot conclude that ocean acidification regulations that have been in place in Gulf of Alaska. In Alaska, their diet is contributing significantly to the the part of the Code of Federal consists of krill and many different extinction risk of any humpback whale Regulations addressing endangered kinds of fish including herring (Clupea DPS through growth and toxicity of marine or anadromous species (50 CFR pallasii) and capelin (Mallotus villosus), phytoplankton associated with HABs or 224.103(b)) so that they also appear in all of which are planktivorous and impacts to the humpback whale’s food the part of the Code of Federal therefore likely vectors of domoic acid supply, now or in the foreseeable future. Regulations addressing threatened and saxitoxin exposure (Bargu et al. Comment 25: Several commenters marine and anadromous species (50 2002; Doucette et al. 2005; Lefebvre et asserted that NMFS makes nothing more CFR 223.214) and the part setting forth al. 2002a). A lower percentage of than a passing reference to climate MMPA regulations (50 CFR 216.18); and humpbacks tested positive for domoic change and ocean acidification, despite (2) promulgating an interim final rule acid (38 percent, highest concentration repeatedly recognizing that threats from setting out similar regulations in Hawaii = 51 ng/g feces) than saxitoxin (50 climate change are likely to increase. In under the MMPA (50 CFR 216.19). In percent, highest concentration = 62 ng/ so doing, one commenter argued, NMFS addition, we have implemented a g). The highest domoic acid and failed to adequately analyze the threat number of responsible viewing saxitoxin concentrations were found in they pose and improperly and programs across the United States to an individual that died from a ship summarily dismissed these threats in its promote precautionary practices on the strike, which may not be a coincidence analysis for the DPSs not proposed to be water. One of these programs, Whale because saxitoxin and domoic acid listed. Another commenter stated that SENSE, works closely with the whale intoxication have been suggested to be humpback whales have not recovered to watch industry along the U.S. Atlantic a factor in the loss of ability to avoid abundances that could sustain a rapid and in Alaska, whereby operators agree ships and to be a cause of stranding decline due to expected climate changes to adopt a high standard of stewardship (Geraci et al. 1989). Unless unknown in the foreseeable future. Response: We evaluated the effects of on the water, including limiting speeds factors inhibit HABs in northern waters, climate change and ocean acidification and time spent with whales. warming water temperatures and on each humpback whale DPS, as Comment 24: One commenter increased light availability due to loss of discussed in our proposed rule (80 FR asserted that we failed to consider the sea ice are likely to support more 22304; April 21, 2015 at 22328–22329), science demonstrating that ocean blooms, increasing toxin concentrations but found no basis to conclude they acidification could profoundly affect the and the health risks they present for growth and toxicity of phytoplankton contribute significantly to extinction northern marine mammal species as risk for most DPSs, now or in the associated with harmful algal blooms they have for southern species. Despite (known as ‘‘red tides’’) and the foreseeable future. (Please note that the these results, we do not have any Arabian Sea DPS, which we list as detrimental effects this will have on all evidence to indicate that HABs are humpbacks, particularly the proposed endangered, presents special causing humpback whale mortalities considerations as discussed in the Mexico, Central America, and Hawaii that rise to a level that would indicate DPSs, and that we failed to adequately Arabian Sea DPS section). The ESA they are contributing significantly to the consider impacts to their food supply. requires that listing decisions be based extinction risk of humpback whale Response: We did consider HABs, and solely on the best available scientific the BRT found, and we agreed, that DPSs, now or in the foreseeable future. and commercial information. We cannot HABs represented a minor threat to (Please note that the Arabian Sea DPS, merely speculate that climate change most humpback whale populations. which we list as endangered, presents and ocean acidification contribute HABs may be increasing in Alaska, but special considerations as discussed in significantly to the extinction risk of any the BRT was unaware of records of the Arabian Sea DPS section.) humpback whale DPS, but must base humpback whale mortality resulting With regard to impacts on the our listing determinations on evidence from HABs in this region. humpback whale’s food supply (in sufficient to indicate that a particular We have recent evidence of high terms of krill), humpback whales switch effect is likely to lead to particular levels of domoic acid in two humpback prey types and are also found feeding on biological responses at the species level. whales that stranded in California in schools of small fish when those are In fact, the only evidence for climate 2015. We obtained very few samples more available. This adaptability is change effects on prey abundance or from the eight humpback whales that beneficial within and between years and type is humpback whales moving north stranded in California in 2015 as most feeding areas and may help humpback into Arctic waters, which is an were too decayed or inaccessible for whales be more resilient to changing expansion of their range and could be necropsy, but in these two cases we prey distributions and availability. On seen as a positive effect. There is a high were able to test for domoic acid and the negative side, this adaptability may degree of uncertainty associated with detected its presence. Domoic acid has also bring the whales into greater the fundamental issue of whether loss of not been identified as the cause of death contact with fisheries for these same sea ice will negatively affect krill; while for the two humpback whales at this fish, leading to increases in interactions. overwintering larval krill use sea ice for time, and at least one of them also had As we stated in the proposed rule (80 predator protection and as a food source marks of blunt force trauma. FR 22304; April 21, 2015), ‘‘. . . the (algae on the underside of the ice), it is A recent study (Lefebvre et al. 2016) BRT did not think the linkage between possible that krill would do better in documented spatial patterns and climate change and future krill open water because it has higher prevalence of domoic acid and saxitoxin production was sufficiently well primary productivity. Here the data do exposure in Alaskan marine mammals understood to rate it as moderate or high not allow us to draw more than in order to assess health risks to risk. Nonetheless, any potential impacts speculative conclusions as to the northern populations. Humpback resulting from these threats will almost impacts of climate change on the

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species, and thus our qualitative We carefully reviewed the four citations drilling, and other impacts of the oil and analysis of the impacts of climate (Martinez-Levasseur et al. 2010, 2013a, gas industry have never been fully change satisfies our obligation to use the 2013b; Bowman et al. 2013) related to realized for these animals as these types best scientific and commercial data UV radiation damage to whale skin of projects are recent additions to the available. See Oceana, Inc. v. Pritzker, provided by the commenter and not ocean environment and their 75 F. Supp. 3d 469, 493 (D.D.C. 2014) reviewed at the time of the proposed development has been limited in the Comment 26: One commenter rule. Results from Martinez-Levasseur et whales’ habitat due to their protected asserted that the scientific record does al. (2010) may indicate quick responses status. The commenter further suggested not support the statement made by the to increasing irradiation, based on that deep-sea mining is another new IWC and cited in the status review increased number of melanocytes, industry, the impacts of which are just report and the proposed rule, ‘‘It is stimulation of the synthesis of melanin, beginning to be studied now, that has generally accepted that cetaceans are and augmented apoptosis (the death of the potential to release toxic unlikely to suffer problems because of cells that occurs as a normal and contaminants previously locked away in changes in water temperature per se controlled part of an organism’s growth the seabed, and that old industries (IWC 1997).’’ This commenter added or development) when exposed to UV haven’t yet reformed into modern, that the proposed rule changes fail to radiation in blue whales, fin whales, sustainable practices. This commenter address environmental and health and sperm whales. Martinez-Levasseur asserted that fishing continues globally concerns regarding climatic events that et al. (2013a) discovered an apparent to take larger catches than science have already begun, and that they plastic pigmentation response as well as recommends; farming, sewage, and believe will escalate in the foreseeable the use of distinct strategies to industrial practices continue to put too future. The commenter described her counteract harmful exposure to UV many nutrients and pollutants into the research on the structure and radiation amongst whale species, raising ocean, increasing dead zones and innervation of humpback whale skin, questions about the selective pressure bioaccumulation; and the shipping and concluded that critical concerns that sun exposure has exerted on these industry continues to increase, facing the species from climate change marine mammals. Martinez-Levasseur et increasing the likelihood of ship strikes include: (1) UV radiation exposure al. (2013b) provided preliminary results and acoustic interference as the oceans secondary to ozone depletion that demonstrate an association between become noisier. Another commenter compromises skin by burns and blisters, the levels of expression of target genes asserted that NMFS also failed to making the whale more susceptible to and sunburn microscopic lesions consider new practices in the oil and pathogens and weakening its immune previously recorded in cetacean gas industry that present new threats. response; (2) If water temperatures rise, epidermis. Bowman et al. (2013) Offshore ‘‘fracking’’—an unconventional the ability of these animals to cool presented a reliable method which, for oil and gas extraction practice that down, particularly in tropical birthing the first time in the literature, allows for involves blasting voluminous amounts and calving grounds, will be the simultaneous detection of skin of water and toxic chemicals into the diminished. While the metabolic effects mtDNA damage in the same three earth at high pressures to crack rock of this are unknown, her experience species of sun blistered whales and beneath the ocean floor—is expanding, with whale skin suggests to her that one noted that it would be interesting to see exposing animals to possible leaks and complication will be a breakdown of if detected differences in damage among to the chemical discharges that are a skin integrity; (3) Low pH levels are these species reflect any behavioral byproduct of this activity. This same experienced as chemical burns. This differences, such as migration patterns, commenter said that, in addition to commenter asserted that her research skin pigmentation, or the time spent at analyzing each threat on its own, NMFS has shown these animals have the surface of the ocean. While these must also analyze threats to humpbacks neuroanatomical fibers in their skin that studies are interesting, they do not cumulatively to determine if they are may respond to similar stimuli; (4) Skin provide sufficient evidence to conclude threatened or endangered, citing Carlton diseases, lesions, lice, pathological that increased UV radiation due to v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. microbial communities, and pollutants climate change is currently affecting the 1995) (the agency ‘‘must consider each is another area of particular concern, as status of humpback whale DPSs or is of the listing factors singularly and in the science exploring lesions and likely to do so within the foreseeable combination with the other factors’’). immune response is minimal, though This commenter asserted that NMFS reported occurrences are increasing. future. The commenter did not provide While whales were able to evolve any citations to her own published paid lip service to this requirement by during past climatic shifts, this research, so we cannot evaluate her claiming that the five listing factors do commenter argues, the present rapid other assertions, which were only not pose a threat to recovery ‘‘either rate of temperature change and ocean generally described. We have no alone or cumulatively.’’ acidification is unprecedented. The evidence that humpback whales will be Response: The threats mentioned in commenter concludes that it is not wise impacted in the ways described by this this comment are described very to assume whales will be able to commenter within the foreseeable generally, and we have no specific genetically evolve or adopt behavioral future. The only DPS for which we evidence to indicate that they will modifications sufficient to overcome the consider climate change to be a negatively impact any humpback whale foreseeably predicted changes. The significant threat is the Arabian Sea DPS. We considered the potential for commenter provided 4 citations related DPS, as we stated in the proposed rule, new threats in developing our proposed to ultraviolet (UV) radiation damage to and we are listing this DPS as listing determinations, and we conclude whale skin. endangered. that these threats are not likely to Response: When we cited the IWC Comment 27: One commenter stated increase the risk of extinction to any of (1997) report in the proposed rule, we that delisting populations will also the DPSs not proposed for listing to the added, ‘‘Rather, global warming is more expose whales to new threats, the point where they would warrant listing likely to effect changes in habitats that impacts of which are not well under the ESA. Finally, it is important in turn potentially affect the abundance understood. The commenter suggested to note that the Monitoring Plan we are and distribution of prey in these areas.’’ that acoustic prospecting, off-shore issuing today for humpback whales

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establishes a framework for continued have considered whether any section finalizing the identification of, and a monitoring and assessment of potential 4(a)(1) threats in combination would ‘‘not warranted’’ finding for, the West threats for the next 10 years (twice the lead us to conclude that a different Indies DPS in this final rule. We agree minimum 5-year monitoring period listing status is appropriate for any DPS. these other actions provide protection required by the ESA). We have reached our final listing for humpback whales. With regard to the suggestion that we determinations after fully considering Comment 30: Two commenters failed to adequately evaluate the all factors together and individually. suggested that there was insufficient combined effects to the species from all support for a single, wider Caribbean section 4(a)(1) factors, while we did not Comments on the West Indies DPS region DPS, taking the position that the explicitly discuss the combined effects Comment 28: One commenter noted West Indies DPS we identified of different threats on the different DPSs that on page 95 (80 FR 22304; April 21, comprises two (or more) DPSs that in the proposed rule, it is clear that we 2015 at 22325), the proposed rule states should be considered endangered. did consider them. For the West Indies, that the SBNMS has the potential to Another commenter stated that new Hawaii, and Mexico DPSs, we did not reduce the extinction risk of the West information is now available based on mention the combined effects of threats Indies DPS by providing protection on research in the eastern Caribbean and in the proposed rule because the the feeding ground. While this the eastern North Atlantic and that this abundance estimates of these DPSs were commenter agrees that the SBNMS is a information does not support previous sufficiently high that we could not site of important research and assumptions that the West Indies is a foresee any combination of threats management initiatives, the commenter homogeneous breeding population. impacting the DPSs to the point where points out that it is a small marine Rather, whales in the eastern Caribbean we would consider them threatened or protected area that is visited by only appear to exhibit different breeding endangered. (Note that we now have approximately 200 individual timing and preferential exchange with revised abundance estimates for the humpback whales per year on average eastern North Atlantic areas (Stevick et Mexico DPS and have reconsidered its (CCS, unpublished data). As such, al. accepted; Stevick et al. 2015). This status in light of the continuing threat argues the commenter, it is unlikely that commenter stated that it is unclear of fishing gear entanglements). For the it could have significant effect on the whether these results might require a Southern Hemisphere DPSs that we did viability of the West Indies DPS. The change in the spatial boundaries of the not propose to list (Brazil, Gabon/ commenter further notes that, on a two proposed DPSs, or if there should Southwest Africa, Southeast Africa/ larger scale, the SBNMS is part of a be more than two DPSs in the North Madagascar, West Australia, East Sister Sanctuary Program with other Atlantic. The commenter stated that it is Australia, Oceania, and Southeastern marine protected areas within the range also not clear whether further Pacific), we noted in our proposed rule, of North Atlantic humpback whales and heterogeneity may exist within other ‘‘None of the factors that may negatively that this relationship has the potential under-sampled areas of the Caribbean. impact the status of the humpback to facilitate conservation and research The commenter believes that these whale appear to pose a threat to across international boundaries. results must be further scrutinized recovery, either alone or cumulatively, However, it is not clear how this before ascertaining the number, the for these DPSs.’’ The high abundances program might be impacted by a change geographic extent, and status of DPSs in of these DPSs similarly led us to in the ESA status of the proposed West the North Atlantic. conclude there was no potential Indies DPS. Response: Research (Stevick et al. combination of threats that would result Response: We agree that the SBNMS 2015) shows that some humpback in endangered or threatened status for is a small marine protected area, but as whales that are resighted in the western any of these DPSs. For those DPSs that the commenter noted, it is part of a North Atlantic feeding grounds move we proposed listing as endangered larger Sister Sanctuary Program that can into the more northern part of the (Cape Verde Islands/Northwest Africa, provide some protection to these whales Caribbean in January and February, and Arabian Sea) on the basis of the factors at certain stages in their migration. To another group that is resighted in identified, there was no need for further date, SBNMS has sister sanctuary Iceland and northern Norway enters the consideration of combinations of effects agreements with the Dominican southeastern Caribbean at a later date. because no amount of additional risk Republic, the French Antilles, and Further, Stevick et al. (2016) discusses could lead to any greater protected Bermuda. The intent of the agreement(s) 4 individual humpback whales sighted status than endangered. While the is to foster cooperation on activities of in Guadeloupe and the Cape Verde discussion in the status review report mutual interest and exchange Islands; one was subsequently sighted and proposed rule was not explicit on experience through coordination of in Norway. However, this information is this point, consideration of the capacity building, research, and based on very few data, and does not combined effect of threats can be education concerning the conservation, provide a sufficient or convincing basis reasonably discerned from them and we stewardship, and management of the to combine whales that breed in the reiterate this reasoning here. endangered humpback whale, and the Southeastern Caribbean with those in Since the proposed rule published, respective marine bank ecosystems they the Cape Verde Islands/Northwest we have reconsidered our listing frequent. We do not expect these Africa DPS or to identify three or more determinations for the Western North activities to change because the West DPSs in the North Atlantic. The Pacific, Mexico, and Central America Indies DPS of humpback whale is not difference in observed breeding timing DPSs. We have determined that the protected under the ESA. could be a result of survey period. In Western North Pacific and Central Comment 29: The State of addition, at least three humpback America DPSs are endangered (please Massachusetts supports not listing the whales from the Lesser Antilles see Western North Pacific DPS and West Indies DPS and asserts that the (southeastern Caribbean) have been Central America DPS sections for our MMPA and the Atlantic Large Whale resighted in West Greenland, rationale) and that the Mexico DPS is Take Reduction Plan (ALWTRP) will Newfoundland, and Norway, as well as threatened (please see Mexico DPS provide protections. the Dominican Republic, which section for our rationale). Further, we Response: We acknowledge the State indicates mixing. At this time, we now confirm in this final rule that we of Massachusetts’ comments, and are believe the best available scientific and

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commercial information supports the fully analyzed yet, so in this final rule and our responses to Comments 8 and DPS structure we have identified. While we are not relying on the abundance 9. further research, including studies of estimate from the MONAH survey. The Comment 32: One commenter noted genetic variation between breeding areas abundance estimates from the YONAH that there is very little available in the northern Caribbean and southeast survey are therefore the best available scientific information about breeding Caribbean, as well as the Cape Verde scientific or commercial information, areas for the humpback whales near Islands, may support the commenter’s and they indicate a population size for Iceland and Norway, where whales are position in the future. At this time we this DPS of 10,400 (95 percent still killed. Many of these populations find no basis to draw different confidence interval (CI) 8,000–13,600) use the same feeding areas, so if a whale conclusions about the DPS structure of individuals using genetic identification is killed, it would be hard to determine humpback whales in the North Atlantic data, and 10,752 (coefficient of variation the origin of a particular humpback than we described in our proposed rule. (CV) = 6.8 percent) individuals using whale population. In these areas where Comment 31: Several commenters photo identification data for the period multiple populations feed, it would be stated that the Years of the North 1992–1993. Stevick et al. (2003) difficult to determine which level of Atlantic Humpback (YONAH) and More estimated the growth rate at 3.1 percent protection applies to individuals when North Atlantic Humpbacks (MONAH) (standard error (SE) = 1.2 percent) for each population is treated differently. surveys are 20+ and 10 years old, the period 1979–1993. While these This commenter does not support the respectively, and that we relied on abundance and growth rate estimates removal of ESA protections from North older, unpublished abundance data for are based on data that were collected Atlantic humpback whales that breed in the proposed West Indies DPS. The prior to the MONAH data, we consider the West Indies, a population that they commenters noted that we have them to be more reliable at this time. We assert has not yet recovered from suggested in the past that data older reaffirm our conclusion that the West whaling and continues to be seriously than 8 years are not good enough for Indies DPS is not threatened or impacted by human induced threats. estimating potential biological removal endangered under the ESA. If newer Response: We agree that there is little (PBR) (Stevick et al. 2015). One of the reliable data become available, that available scientific or commercial commenters asserted that the MONAH information can be considered in the information about breeding areas for data were used to calculate a population context of 5-year reviews, the humpback whales near Iceland and trend that is said to vary from a ‘‘zero Monitoring Plan, or upon a petition, to Norway. Humpback whales feeding in percent’’ increase to a 3 percent increase determine whether any further changes the Northeast Atlantic have been in a 10-year period depending on the to listing status are warranted. matched to breeding grounds in the model used. This commenter added that Cape Verde Islands and the Caribbean. The commenters who stated that the the MONAH data remain unavailable for Additional research would provide a population growth rate for this DPS review a decade later. The commenters greater understanding of the proportions seems to be only 3.1 percent (Stevick et also stated that the population growth of humpback whales in the Northeast al. 2003) are correct, but their assertion rate for this DPS seems to be only 3.1 Atlantic that come from the Cape Verde that the Humpback Whale Recovery percent (Stevick et al. 2003), but the Islands and the Caribbean, but the ESA Plan said 3.5 percent would be required Humpback Whale Recovery Plan said standard of ‘‘best available scientific before we could consider delisting the 3.5 percent would be required before we and commercial information’’ does not humpback whale is incorrect. The could consider delisting the humpback require that we conduct new studies. whale. Further, they argued, the Recovery Plan did not state that a 3.5 Rather, we must rely on the best abundance estimate of 12,312 percent growth rate would satisfy the available information. Here, we individuals for the West Indies DPS’ recovery goal of doubling the conclude that the best available putative breeding ground is only 10 population size (please see our response scientific and commercial information is percent of the long-term estimate of to Comment 10 for further details). sufficient to support our determinations. 112,000 individuals. As we have explained, our action Iceland and Norway do not hunt Response: We are required to use the today is based on a comprehensive humpback whales, so we are confident best available scientific or commercial evaluation of the DPSs comprising the that individual humpback whales information when making a listing humpback whale’s entire range and migrating to Iceland and Norway from determination under the ESA, and this assigns a listing status to each DPS. To the Caribbean are not in danger of is what we did when we relied on these the extent that our action for the West extinction due to whaling. Nor is this abundance and trend estimates. The Indies DPS may constitute a ‘‘delisting,’’ threat likely to affect the status of commenter has taken certain prior it is consistent with § 424.11(d), which whales in the foreseeable future. Iceland statements out of context: We have provides for delisting on ‘‘the basis of hunts minke whales for its domestic determined that, unless compelling recovery’’ (424.11(d)(2)). As that phrase market and its hunt for fin whales was evidence indicates that a stock has not is used in the regulations, it means that recently suspended. Norway hunts declined since the last census, the ‘‘the best scientific and commercial data minke whales only for domestic minimum population size estimate of available indicate that [the species] is no consumption. These countries have not the stock should be considered longer endangered or threatened’’ recently expressed a desire to hunt unknown if 8 years have transpired (424.11(d)(2)). We are not required to humpback whales, and there are no since the last abundance survey (NMFS first find that the recovery plan criteria other indications to suggest that they 2016). This guidance is in the context of have been met in order to directly apply will conduct such hunts. Therefore, we our PBR calculations under the MMPA the 4(a)(1) factors. As discussed in the are confident they will not begin and does not apply to ESA listing proposed rule, we determined, after whaling for humpback whales in the determinations, which require that we evaluating the ESA section 4(a)(1) foreseeable future. (Please also see our base our decisions on the best available factors, that the West Indies DPS is not response to Comment 12). scientific and commercial data. endangered or threatened. For further Comment 33: One commenter noted However, we agree with the explanation, please see the Rationale for that few humpback whales were seen in commenter that the MONAH data Revising the Listing Status of a Listed the New York Bight area before 2011, remain unavailable and have not been Species Under the ESA section above and now they are coming back. This

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commenter stated that the Hudson River On October 10, 2012, we completed Finally, it is important to note that the is improving, but that threats still an informal consultation with the NRC Monitoring Plan we are issuing today remain, and shipping in this area will on the proposed relicensing of the for humpback whales establishes a only increase. This commenter Seabrook Nuclear Power Station framework for continued monitoring recommended leaving the West Indies (SBNPS) located in Seabrook, New and assessment of threats for the next 10 DPS listed as endangered, adding that Hampshire. We concurred with the years (twice the minimum 5 year there is no definitive evidence to NRC’s determination that the continued monitoring window required by the conclude that the West Indies DPS is operation of the SBNPS is not likely to ESA). leveling off or reaching carrying adversely affect any ESA-listed species. Comment 36: One commenter stated capacity. We consulted on the Mirant Canal that it has not been possible to Response: The best available scientific Power Plant in 2008, concluding, adequately limit the human impacts and commercial information indicates ‘‘Based on the above analysis of water from entanglement and ship strikes that that the West Indies DPS is increasing quality effects and the determination are known to occur within U.S. waters, in abundance. As we explained in our that all effects, if adverse, will be let alone those that may occur in other response to Comment 9, whether a DPS insignificant or discountable, NMFS is parts of the range of the West Indies reaches carrying capacity (or historical able to concur with EPA’s determination DPS. The commenter stated that abundance) is not a criterion for that the proposed NPDES permit for this humpback whale takes along the U.S. recovery under the ESA. Please see facility is not likely to adversely affect East Coast have exceeded management responses to Comments 34–38 and 42 listed whales or sea turtles.’’ limits for more than two decades, and regarding threats to the West Indies Comment 35: One commenter these are thought to be underestimates DPS. expressed concern about the adequacy of the total number of takes actually of other protection measures for the Comment 34: One commenter occurring (van der Hoop et al. 2013; West Indies DPS, which the commenter asserted that humpback whales in the Pace et al. 2014; Cole and Henry 2013). understands to be the primary breeding Northwest Atlantic are subject to As rationale for urging us to keep the ground for North Atlantic humpback impacts of industrial electric generators West Indies DPS listed as endangered, whales that consistently return to U.S. operating on the shoreline, such as another commenter asserted that this waters each year. The latest information year alone the marine animal Entergy Pilgrim Nuclear Power Station on population size and growth rate for disentanglement team, based out of on the shore of Cape Cod Bay the West Indies DPS is more than a Provincetown, MA, has received reports (Plymouth, MA), Seabrook Station decade old and, according to the of 7 entangled humpback whales. Nuclear Power Plant (Seabrook, NH), commenter, the results are somewhat Another commenter asserted that and Mirant Canal Power Plant ambiguous. This commenter would be (Sandwich, MA). Possible and realized more comfortable with listing changes if entanglement-related mortality in negative impacts include entrainment there were proven success in DPS-level Canada is largely unaddressed, and and impingement of food sources (fish monitoring and controlling current there has been an increase in the use of and ichthyoplankton), as well as human impacts. The commenter stated trap/pot gear. This commenter also chemical, thermal, and radioactive that if populations were to lose ESA asserted that there was an increased risk discharges. protections then it will be necessary to of entanglement for humpback whales Response: We have conducted track their status more intensively to in the areas that were reopened to informal consultations under section 7 reliably detect and potentially reverse groundfishing when the New England of the ESA for the relicensing of the adverse effects of delisting in a timely Fishery Management Council took final named power plants. The consultations manner. action on their Omnibus Essential Fish concluded that the relicensing and Response: The commenter refers to Habitat Amendment 2. continued operation of the power plants the West Indies DPS as ‘‘the primary Response: The largest potential were not likely to adversely affect any breeding ground for North Atlantic threats to the West Indies DPS are ESA-listed species under our humpback whales.’’ To clarify, the West entanglement in fishing gear and ship jurisdiction (including, at the time, Indies DPS refers to the individual strikes; these occur primarily in the humpback whales). On May 17, 2012, humpback whales that constitute the feeding grounds, with some we concluded an informal consultation DPS, not the breeding ground itself. The documented in U.S. waters of the mid- with the Nuclear Regulatory breeding grounds for the West Indies Atlantic. While some large whales Commission (NRC) on the relicensing of DPS include waters of the Dominican display evidence of surviving vessel the Pilgrim Nuclear Power Plant Station Republic (primarily Silver Bank, collisions, these interactions, (PNPPS) located in Plymouth, Navidad Bank) and Puerto Rico (Mona particularly with larger ships, are Massachusetts. The consultation Passage). routinely lethal due to blunt force concluded that the relicensing and There are a number of ongoing trauma of the impact and the severe continued operation of the PNPPS was conservation efforts that benefit the lacerations associated with the vessel not likely to adversely affect any NMFS- West Indies DPS. These include a propeller. It is difficult to determine listed species. No new information has number of measures implemented under whether mortalities and injuries from come to our attention that would cause the authority of the MMPA, including these threats are due to increasing us to take a different view for this final the ALWTRP and Harbor Porpoise Take abundance of humpback whales or listing determination. While some Reduction Plan (HPTRP) to reduce the increased numbers of fishing gears and zooplankton is likely lost to entrainment risks associated with large whale vessels. However, we have determined at the PNPPS each year, approximately interactions with fishing gear, and the that the West Indies DPS continues to 85 percent of entrained zooplankton are Ship Strike Reduction Strategy to grow in abundance, despite the fishing believed to survive (Bridges and reduce risks associated with vessel gear entanglements and vessel strikes, Anderson 1984). Further, in October collisions. Please see the proposed rule and we determine that its high 2015, Entergy Corporation announced (80 FR 22304; April 15, 2015 at 22324– abundance provides sufficient resilience that it will close its PNPPS in Plymouth, 22325) for more information on these within the foreseeable future against MA, no later than June 1, 2019. measures. such threats.

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We disagree that it has not been gillnet effort overall, the overall risk of different between the feeding and possible to adequately limit the human marine mammal entanglement is breeding grounds. A possible impacts from entanglement and ship unlikely to increase and the risk of explanation would be that the Silver strikes that are known to occur within opening closed areas to gillnet fishing is Bank breeding ground has reached U.S. waters, let alone those that may unknown. There could potentially be a carrying capacity, and that an increasing occur in other parts of the range of the decreased level of entanglement risk, as number and percentage of whales are West Indies DPS. Existing management areas in which gillnet gear is currently using other parts of the West Indies as measures implemented specifically for heavily concentrated become more breeding areas (Bettridge et al. 2015). In protected resource conservation should diffuse. Please see our response to any case, the ESA does not require that mitigate any impacts of the amendment Comment 39 for details on measures the population level of a listed species on large whales and other marine that are in place for Atlantic right must ‘‘level off’’ or reach carrying mammals. The ALWTRP implements whales that likely reduce the risk of capacity for ESA protections to not gear restrictions, spatially and vessel collisions with humpback apply; we have directly evaluated the seasonally, to minimize interactions whales. likelihood of the DPS to persist by between whales and vertical lines from Further, Barlow and Clapham (1997) considering abundance and trend fishing gear, as well as to reduce serious have estimated a population growth rate information and applying the section injury or mortality, should an of 6.5 percent (SE = 1.2 percent) for the 4(a)(1) factors directly. interaction occur. Two recent well-studied humpback whale It is not clear whether there is a adjustments to the ALWTRP include the population in the Gulf of Maine, which significant increase in the use of trap/ ‘‘Sinking Groundline Rule’’ that became is part of the West Indies DPS. Clapham pot gear in Canada as the commenter effective in April 2009 (73 FR 51228; et al. (2003) suggest that there are suggests. Canada’s most recent September 2, 2008), and the ‘‘Vertical indications this growth rate has slowed assessment of the Northwest Atlantic Line’’ rule that became effective in in recent years. population of humpback whales August 2014 (79 FR 36586; June 27, The current PBR for Gulf of Maine conducted by COSEWIC determined 2014). These rules have improved, or humpback whale population stock that the population is not at risk of are expected to improve, management of (under the MMPA) is 2.7 animals per being listed as endangered under SARA. marine mammal interactions with year. When this final rule becomes A Code of Ethics was established by a fishing gear. In addition, when the effective, PBR will be recalculated and non-profit organization working with Atlantic Large Whale Take Reduction will increase because the West Indies whale-watching operators to minimize Team (ALWTRT) was working on the DPS will no longer be listed, and there the impact of whale watching on vertical line rule to address will be no ESA-listed DPS that overlaps whales. Whale watching and ecotourism with the Gulf of Maine stock. The total entanglement risk of vertical lines to operators throughout Atlantic Canada estimated human-caused mortality and large whales, it determined that gillnets and Quebec have adopted similar codes serious injury to the Gulf of Maine represent less than 1 percent of the total of ethics to reduce interactions with humpback whale stock is estimated as vertical lines on the east coast (see large whales, including humpback 10.3 animals per year. This average is Appendix 3A in the most recent whales. A protocol has been established derived from two components: (1) ALWTRP Final Environmental Impact for releasing entangled whales from Incidental fishery interaction records, Statement) and that the impacts from fishing gear. There are a number of first 8.9; and (2) records of vessel collisions, responders in Canadian waters. In this gear on large whales is minimal. 1.4 (Waring et al. 2014). addition to the Grand Manan Whale and Therefore, the 2014 rule focused on While mortality and serious injury of Seabird Research Station and other trap/pot vertical line reduction, which humpback whales from the Gulf of groups in Nova Scotia, the volunteer is a gear that has been, and would, for Maine stock have exceeded its PBR, this Campobello Whale Rescue Team the most part, continue to be allowed in stock is only a small component of the responds to entanglements in Canadian the habitat management areas. Areas total West Indies DPS humpback whale waters (primarily the lower Bay of with the greatest co-occurrence of large population. The best estimate for the Fundy) and collaborates with U.S.-based whales and gillnet gear will continue to total population of humpback whales in rescue groups at the Provincetown be subject to existing restrictions under the Gulf of Maine stock is 823 animals Center for Coastal Studies and the New the ALWTRP. Further, should data (Waring et al. 2014). The overall England Aquarium where humpback indicate that gillnet entanglement risk population of the West Indies DPS of whales and other whale species are has increased, the ALWTRT would be humpback whales is estimated to be more prevalent. We do not agree that reconvened to address the issue. 10,400–10,752 (please see response to entanglement-related mortality in Because a number of the proposed Comment 31). Overall, the West Indies Canada is largely unaddressed. alternatives considered for Omnibus DPS was estimated to be increasing Regarding the commenter’s assertion Essential Fish Habitat Amendment 2 slowly over the time period 1980 to that there would be an increased risk of would potentially open areas to fishing 2005, but there is not sufficient entanglement for humpback whales in that have been closed for a significant evidence to statistically conclude the the areas that were reopened to period of time, there are no data to DPS has leveled off, such as would groundfishing when the New England provide insight as to how gear may occur for a population reaching carrying Fishery Management Council (Council) potentially shift and, if there is a shift, capacity (Bettridge et al. 2015). In took final action on their Omnibus what kind of impact this may have on contrast, estimates from feeding areas in Essential Fish Habitat Amendment, this protected species. As a result, it is not the North Atlantic indicate strongly is not a final action. NMFS has not possible to forecast precisely what increasing trends in Iceland (1979–1988 taken a final action on this amendment. entanglement risk would exist if the and 1987–2007), Greenland (1984– Between October 10, 2013 and January closures are removed. However, we can 2007), and the Gulf of Maine (1979– 8, 2014, the Council accepted written adequately examine risk based on 1991). There is some indication that the comments on the amendment and its overall gillnet effort—i.e., the actual population growth rate in the Gulf of associated draft Environmental Impact number of nets in the water. Because Maine has slowed in more recent years. Statement, and these comments were there is unlikely to be an increase in It is not clear why the trends appear so submitted to us. Between November 24,

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2014 and January 7, 2015, the Council year, which we conclude is evidence of rescued since 1984, many from gear held 12 public hearings on Omnibus the population’s resilience to the entanglement. According to another Essential Fish Habitat Amendment 2. injuries and mortalities it may commenter, a quarter to a third of the All of the proposed habitat management experience into the foreseeable future. population show evidence of vessel alternatives, except for the no action The most recent and best estimate of strikes, and well over half show signs of alternative, would remove year-round annual serious injury and mortality for a previous entanglement. In discussing groundfish closures and result in gear the Gulf of Maine stock of humpback their assertion that we did not consider capable of catching groundfish being whales is 10.2 animals annually (Waring the inadequacy of regulatory allowed into areas where they had et al. 2014). As stated above in our mechanisms when making our listing previously been restricted. Changes in response to Comment 36, the Gulf of determinations for the 14 humpback the patterns of fixed gear use, Maine stock (under the MMPA) is only whale DPSs, another commenter specifically concentrations of fixed gear, a small portion of the overall population asserted that regulations have proven have the greatest potential to influence of humpback whales that comprise the inadequate to reduce humpback whale the magnitude of protected resources West Indies DPS. Further, these whales mortality to legally mandated levels, impacts in the region. Gillnets and will still be protected under the MMPA, citing Pace et al. (2014). traps/pots have been documented as which prohibits take and requires that Response: The commenters having the most interactions with marine mammal stocks be maintained at misconstrue the source of the data in whales and dolphins as compared to optimum sustainable population levels Waring et al. (2014). Those data are from trawl or hook gear. The management (please see response to Comment 36). the Stock Assessment Report for measures currently in place for the The majority of the BRT members humpback whales. Stock Assessment Northeast multispecies, monkfish, and concluded that the West Indies DPS was Reports are, for the most part, skate fisheries (i.e., the fisheries that use ‘‘not at risk of extinction’’ (82 percent of compilations of published information gillnets and bottom trawls) and the the likelihood points). The concern by rather than NMFS’ own data. Waring et scallop fishery all limit the overall some members of the BRT that there is al. (2014) note that scarification rates amount of fishing effort, mainly through potential for this DPS to be at have been used to study entanglement- annual catch limits on target stocks. As ‘‘moderate’’ or ‘‘high risk of extinction’’ related scarring on humpback whales in a result, the changes proposed in this reflects uncertainty on the part of some the Gulf of Maine, with the results amendment would not be expected to BRT members stemming from suggesting that between 48 percent and result in an increase in fishing effort potentially high rates of entanglement 65 percent had experienced some sort of overall, just shifts in the location of that and/or ship strikes in some portions of entanglement (see also Robbins and effort. its range (17 and 1 percent, Mattila 2001). However, those Comment 37: Commenters assert that respectively), and the occurrence in the entanglement rates include all sources while some humpback whale Gulf of Maine of recent multiple of entanglement, including moorings populations have shown signs of unusual mortality events (UMEs) and other non-fishing activities. recovery, North Atlantic humpback (Bettridge et al. 2015). Despite these Large whale entanglements, including whales struggle to recover from decades threats, the abundance of the West those involving humpback whales, are of whaling as they face unsustainable Indies DPS is substantial, and the difficult to study, as the moment of threats from entanglements in fishing growth rate is positive. entanglement is rarely observed and in gear, vessel strikes, energy development, The threats mentioned in this most cases animals move away from the ocean noise, and pollution. The comment are described very generally, location of the event. Since 1997, commenters argue that Gulf of Maine and we have no indication that they will scarification rates have been used as a humpback whales are currently being negatively impact humpback whale measure of entanglement rates for large seriously injured or killed by human DPSs. We considered the potential for whales. These scar studies provide a impacts at a rate higher than the new threats in developing our proposed method for evaluating both lethal and population can sustain to recover, and determinations, and we conclude that non-lethal entanglement events. The some BRT members considered that these threats are not likely to increase continued monitoring of scarification North Atlantic humpback whales who the risk of extinction to any of the DPSs rates provides a means to help monitor breed in the West Indies may be at a that have not been proposed for listing the effectiveness of management efforts ‘‘moderate’’ or ‘‘high risk of extinction’’ to the point where they would warrant implemented to reduce the frequency of due to ‘‘potentially high rates of listing under the ESA. these types of interactions. Further, entanglement and/or ship strikes in Finally, it is important to note that the since those scarification studies have some parts of its range’’ as well as the Monitoring Plan we are issuing today been conducted, NMFS, in consultation multiple cases of mass die-offs of per section 4(g)(1) of the ESA with the ALWTRT, has developed and humpback whales in the Gulf of Maine. establishes a framework for continued implemented two major regulatory The commenters do not support monitoring and assessment of threats for actions that have significantly reduced removing ESA protections from North the next 10 years (twice the minimum the volume of groundlines from trap/pot Atlantic humpback whales that breed in 5-year monitoring window required by and gillnet gear (72 FR 57104; October the West Indies. the ESA). We have determined that the 5, 2007) and vertical lines in all trap/pot Response: The BRT concluded that West Indies DPS continues to grow in gear (79 FR 36586; June 27, 2014) to North Atlantic humpback whales that abundance, despite the fishing gear significantly reduce the risk of breed in the West Indies are at low risk entanglements and vessel strikes. Please entanglement. of extinction, and we agree. As see our responses to Comments 19, 20, We acknowledge that fishing gear discussed in the West Indies DPS 21, 34, 35, 36, 38, and 41. entanglement continues to impact section, the most reliable estimate of Comment 38: Several commenters humpback whales to varying degrees in abundance for the West Indies DPS is stated that NMFS’ own data say most the range of different DPSs. However, 10,400–10,752 animals (please see humpback whales have been entangled we have assessed the potential effects of response to Comment 31). Humpback at least once. One commenter stated fishing gear entanglements on several whale numbers in the Gulf of Maine are that, according to Center for Coastal species of large whales including increasing at a rate of 3.1 percent per Studies, 80 humpback whales have been humpback whales in the northwest

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Atlantic (West Indies DPS) through the of human activity, this commenter ESA and adjusting the listing to ESA section 7 consultation process. We argues, the population will continually accurately reflect that status (as we are have completed a number of biological end up going over its PBR rate and will required to do under sections 4(a)(1), opinions on several fishery management fail to meet or maintain its optimum 4(b)(1)(A), and 4(c)) is incompatible plans (FMPs), including the American sustainable population (OSP) level. This with our obligations under the MMPA. lobster, the Northeast Multispecies, commenter also asserts that the ESA Comment 40: One commenter monkfish, spiny dogfish, Atlantic provides more protection than the suggested that new breakaway nets that bluefish, Northeast skate complex, MMPA. This commenter concludes that protect whales from entanglement be mackerel/squid/butterfish, and summer it is likely that delisting this particular required. flounder/scup/black sea bass fisheries population will cause these cases of Response: The current action is a final and concluded that these fisheries are human interactions to increase, which listing determination addressing the not likely to jeopardize the continued may ultimately lead to a need for NMFS status of the DPSs under the ESA on the existence of the species (see http:// to relist the population, wasting basis of the best scientific and www.greateratlantic.fisheries.noaa.gov/ valuable resources that could have been commercial data available. We are also protected/section7/bo/actbo.html). saved if the population remained listed categorically extending all the Pace et al. (2014) analyzed data from the entire time. Another commenter protections of section 9 to the mortalities and serious injuries prior to cited Laist et al. (2014) to assert that the threatened DPSs. It is outside the scope new regulations requiring sinking authors concluded that there is no of this action to consider modifying or ground lines and vertical lines, which evidence to show that the North promulgating additional special are a known important whale Atlantic right whale vessel speed rule protections, though we may do so in the entanglement problem. That paper confers benefits to the humpback whale future through a special rule under supports our conclusion that additional (West Indies DPS). section 4(d). Nevertheless, we respond measures to reduce entanglement were Response: As discussed above, to clarify the current regulatory status of needed at that time and are still measures to reduce the take of the type of protective measure to which required now. The ALWTRT was humpback whales (as well as other large we understand the commenter to be apprised of these findings, and our whales) have been promulgated under referring. We assume the commenter’s Greater Atlantic Regional Fisheries the authority of the MMPA (please see mention of ‘‘breakaway nets’’ was Office cited this information as support our response to Comment 35). These referring to weak links that allow the for the ground line and vertical line measures implemented to protect large gear to part under various weight rules with the goal of reducing whales, including humpback whales, tolerances, with the intention of entanglements that result in serious will remain in place, including those to reducing the risk of serious injury and injuries and mortalities, in accordance reduce the risks of fishing gear mortality should a whale encounter with requirements of MMPA and ESA. interactions and ship strikes. The trap/pot or gillnet gear. The use of weak Further, we collaborated with the measures we have imposed to reduce links is already required through the ALWTRT to develop a monitoring plan the threat posed by ship strikes to North regulations implementing the ALWTRP. for the ALWTRP that provides for a 5- Atlantic right whales have been The ALWTRP is intended to reduce the year monitoring period to evaluate the promulgated under the authority of the risk of serious injury and mortality of impact from and compliance with the ESA and MMPA, and although these large whales caused by the incidental regulations associated with the measures were keyed closely to North entanglement of large whales in U.S. ALWTRP. As such, we will gather data Atlantic right whale distribution, they commercial trap/pot and gillnet fishing over 5 years, and will then analyze are expected to help reduce risk to gear. The ALWTRP focuses on reducing whether there is a noticeable change humpback whales to the extent that the entanglements of right, humpback, and from the suite of conservation measures distribution of the two species overlap. fin whales. implemented through the ALWTRP. We Related to this, additional actions Comment 41: Several commenters are currently in our second year of established primarily to protect right stated that noise was a threat to implementing the combined sinking whales almost certainly will reduce the humpback whales in the North Atlantic. groundline and vertical line regulations. risk of vessel collisions with humpback Response: We described the research The monitoring plan provides for taking whales. Among these are various vessel on the effects of noise on marine immediate additional action if needed routing measures endorsed by the mammals in the proposed rule (80 FR (as a safety mechanism that allows us to International Maritime Organization and 22304; April 21, 2015 at 22326), and we respond if a new emerging issue arises implemented domestically (Silber et al. concluded that population-level impacts that is not addressed in the ALWTRP) 2012); one of which is expected to on cetaceans have not been confirmed. prior to the end of 5 years. reduce the likelihood of fatal collisions There is little specific, reliable Comment 39: Many commenters with humpback whales by 81 percent in information regarding, for example, the urged us not to take the West Indies DPS the relevant geographical area (http:// interruption of breeding and other off the endangered and threatened stellwagen.noaa.gov/science/tss.html). behaviors or a resulting reduction in species list, as many threats still remain, Further, we have concluded that population growth or mortality of including vessel collisions, fishing gear climate change and noise do not individuals. Therefore, the BRT entanglements, noise, and climate currently place this DPS in danger of considered this to be a low threat for all change. One of these commenters extinction or make it likely that they DPSs. We agree with that conclusion. asserts that the Gulf of Maine will become so within the foreseeable Comment 42: Several commenters population will demonstrate moderate future (please see our responses to asserted that we underestimated the habitat variability in coming years that Comments 25 and 41). risks of subsistence whaling to the West will increase the risk to it from these Our obligations to make listing Indies DPS. threats. The commenter states that, determinations under the ESA are Response: We disagree, and have not without the additional protections of the separate and apart from our obligations received any information to change our ESA, NMFS may find it hard to meet its under the MMPA. We cannot agree with conclusion from the proposed rule. The legal obligations under the MMPA. If the commenter that recognizing the number of West Indies DPS humpback too many individuals are lost as a result improved status of this DPS under the whales killed for subsistence is very

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small, and the abundance of the West Western North Pacific DPS as collisions, and fishing gear Indies DPS is large (10,400–10,752). threatened was, ‘‘Some poaching is entanglements; significant uncertainties Bequians in St. Vincent and the reported to occur in Korean waters and associated with the abundance Grenadines in the Lesser Antilles is suspected off Japan (Baker et al. 2002; estimates, population growth rate, and currently retain an IWC ‘‘block’’ quota IWC 2005c).’’ Japan asserted, however, the extent of its breeding ground; and of up to 24 whales over a 6-year period that Baker et al. (2002) deals with only the BRT’s distribution of likelihood (2013–2018) (IWC 2012), and 27 two cases: (1) A case of gray whale points, which indicated a high level of humpback whales were killed in market products whose origin was uncertainty regarding overall extinction Greenland between 2010 and 2012 unidentified; and (2) a case of one gray risk to this DPS. Regarding the under a 2010 IWC quota. We have whale which was reported as commenter’s assertion that our listing is determined, based on the best available ‘‘stranded’’ by the Japanese government based on an ‘‘abuse’’ of the information, the West Indies DPS is not but appeared to have been killed by precautionary approach, we disagree. threatened or endangered under the fishermen. Japan expressed concern Our final listing determination is based ESA, and it can sustain a small number about the leap of logic in concluding on the best available scientific and of subsistence takes. that some poaching of humpback commercial information. In this case, the best available scientific and Comments on the Cape Verde Islands/ whales is suspected off Japan because a commercial information about the Northwest Africa DPS few cases of illegal catch of gray whales were suspected in the 1990s before the species’ status and threats directly We did not receive any comments on introduction, in 2001, of the system to supports our conclusion that the this DPS, other than the general ban the market distribution of products Western North Pacific DPS is an comment recommending endangered of whale meat not obtained legally. endangered species under the ESA. See status for all DPSs. This DPS is being Japan recommended deletion of some our response to Comment 13 for listed as endangered (please see Cape sentences about Japanese catch/ additional explanation of ‘‘best available Verde Islands/Northwest Africa DPS research/entanglement, and provided information’’ and the Western North section). some references to support its view. Pacific DPS section below for our Comments on the Western North Pacific Japan explained that after the rationale for listing this DPS as DPS Government of Japan introduced a endangered instead of threatened (as domestic regulation in 2001 requiring proposed). Comment 43: One commenter With regard to the comments about expressed concern that we had reporting of bycatch, the reported number of bycaught humpback whales illegal catches and bycatch, we note that combined two populations that the BRT what was discussed were IUU takes; by identified as separate DPSs (Okinawa/ has actually been stable with no increasing trend (http:// definition these takes are not necessarily Philippines and 2nd West Pacific) into _ illegal, but may be unreported or one DPS, the Western North Pacific www.jfa.maff.go.jp/j/whale/w document/index.html (in Japanese); link unregulated. Market survey results from DPS. According to the commenter, if we 2001–2009 in Japan have documented had identified them as separate DPSs, at provided by Japan). Japan argued that this fact clearly shows that the alleged concerns for IUU takes from stocks of at least one of them might warrant least six species of whales, including endangered status. increase in the number of reported entanglement/deaths lacks foundation. humpback whales; the others are sei, Response: We concluded that Bryde’s, gray, North Pacific minke, and Also, Japan noted, no whale products combining the two putative DPSs into fin whales (Baker et al. 2015 SC/66a/ derived from whales other than legally one DPS was the most consistent with SD2; Steel et al. 2009 SC/61/BC8, Baker obtained ones have been found in the the best available scientific and et al. 2008 SC/60/BC2, Baker et al. 2007 market sample monitoring survey (using commercial information. It is not known SC/59/BC9). This includes the DNA sequencing technique) conducted where the ‘‘2nd West Pacific’’ possibility of the sale of whale meat by the Fisheries Agency of Japan in population breeds, and therefore it from undocumented sei and fin whales recent years. Judging from this survey cannot be classified as a separate DPS from the Southern Hemisphere, and of result, Japan stated, it is highly unlikely from the others, which are generally a greater number of individual fin that there is substantial underreporting identified by breeding area. Further, whales than expected from reports of whether or not identifying an entity as of bycaught whales in Japan, and Japan bycatch. Therefore, recent IUU of large threatened or endangered if it is a concluded that the assertion that ‘‘the whales in this region remains possible. smaller entity would lead to a different actual number of entanglements may be We do not agree that bycatch of listing determination would not be an underrepresented’’ is not persuasive. humpback whales has not increased; appropriate rationale for identifying that Likewise, Japan stated that IWC (2005c) using Japan’s Progress Reports to the entity as a DPS. Regardless, we are reported five cases of illegal catch of IWC, and numbers provided by the listing the Western North Pacific DPS as minke whales, not humpback whales, in Japan Fisheries Agency for years for endangered in this final rule. Please see Korea in 2003. Japan believes that the which no Progress Report was provided the Western North Pacific DPS section precautionary approach is being abused to the IWC, there has been a significant below for our rationale for listing this in justifying the ‘‘threatened’’ status of increase in bycatch of humpback whales DPS as endangered instead of the Western North Pacific DPS. in Japan from 2000 to 2015 (e.g., an threatened (as proposed). Response: We do not agree that our average of 2.4 whales per year in 2000– Comment 44: The Fisheries Agency of main rationale for proposing to list the 2004, versus an average of 6.2 whales Japan (Japan) commented that the Western North Pacific DPS as per year in 2010–2015). Western North Pacific DPS should not threatened was the reported or Comment 45: Japan and another be listed under the ESA, asserting that suspected poaching in Korean waters or commenter noted that the abundance we did not provide support for off Japan. We proposed to list this DPS estimate of the Western North Pacific suspicions about Japanese illegal, as threatened because of the relatively DPS is 1,000 and its growth rate is 6.9 unreported, and unregulated (IUU) low abundance estimate (∼1,100); the percent (p.64–65 of the proposed rule; fishing. Japan suggested that our main threats of energy development, whaling, 80 FR 22303; April 21, 2015 at 22318). rationale for proposing to list the competition with fisheries, vessel Japan stated that the annual number of

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bycaught humpback whales in Japan for other regions within the range of smaller (∼1,500 individuals) than what the last 5 years is six individuals on humpback whales in the Western North was considered by NMFS. average, well below one percent of the Pacific DPS, including Taiwan and the Response: We reviewed Okamoto total abundance and the growth rate. Philippines, given past histories of (2013) for the proposed rule, but we did Japan argued that this shows that the whaling’’ (80 FR 22304; April 21, 2015 not consider it to provide enough bycatch of humpback whales in Japan at 22332).’’ But, Japan argues, no information to be reliable. The Okamoto has no adverse impact on the status of descriptions of past histories or (2013) study consisted of a visual survey the Western North Pacific DPS. references are presented. Japan argues of whales in the Ogasawara area Response: Calambokidis et al. (2008) that without such descriptions to conducted on one day (January 30, estimated the growth rate for humpback support the possibility of IUU 2013), which was compared to a similar whales in the Western North Pacific to exploitation in those other regions, previous survey conducted in 1997 be 6.9 percent between 1991–93 and statements that IUU exploitation is (cited as Yoshida and Kato 1999, but 2004–2006, although this could be possible have no basis and cannot be with no other information given). While biased upwards by the comparison of raised as evidence to support the it is encouraging that Okamoto (2013) earlier estimates based on photo- ‘‘threatened’’ status of the Western reports a higher encounter rate around identification records from Ogasawara North Pacific DPS. Japan notes that any Ogasawara in 2013, given the nature of and Okinawa with current estimates information on stranded, beached, this study, there are other reasons that based on the more extensive records bycaught, and/or landed whales can be different encounter rates might have collected in Ogasawara, Okinawa, and easily and promptly shared through the occurred on the two surveys, so the the Philippines during the Structure of internet. Such a circumstance, being results cannot be used to conclude there Populations, Levels of Abundance and combined with the market-sample has been an increase in abundance. Status of Humpback Whales in the monitoring, makes it quite difficult, if Survey data such as this need to be North Pacific (SPLASH) program not impossible, to hide illegal analyzed using line transect methods to (Calambokidis et al. 2008). However, the harvesting/products from the public in take account of differing abilities to overall number of whales identified in Japan. detect whales, which could occur the Philippines was small relative to Response: The statements we made in because of differences in variables such both Okinawa and Ogasawara, so any the proposed rule about possible as vessel type or weather conditions, for bias would likely not be large. Given the exploitation in other regions within the which no information was provided. Additionally, no estimates of precision possible bias in the rate of increase and range of the Western North Pacific DPS, the fact that it represents a combination (such as confidence limits) were given past histories of whaling, were of two populations that the BRT had calculated for either estimate of clearly labeled as not being based on proposed as separate DPSs (Okinawa/ encounter rate. Finally, the BRT specific supporting documentation; Philippines and Second West Pacific), it concluded, and we agree, that the rather, our evaluation was based on our is not possible to make a definite Ogasawara area is an area through professional judgment. Further, our statement about the rate of increase of which humpback whales migrate on the final listing of this DPS as endangered the Western North Pacific DPS. way to their feeding grounds. Therefore, is based on consideration of objective Therefore, we conclude that the the number of whales in a location such factors using the best available scientific population growth rate for the Western as Ogasawara is highly dependent upon and commercial information, as North Pacific DPS is unknown, as we the timing of the survey and the timing stated in the Conclusions on the Status explained in the responses to Comments of migration of the whales. No date is of Each DPS Under the ESA section of 44 and 47 and in the Western North given for the 1997 survey, so if it our proposed rule (80 FR 22304; April Pacific DPS section. occurred earlier or later in the 21, 2015 at 22349). Comment 47: One commenter migration, this could account for the The BRT concluded that, given the recommended delisting the Western lower encounter rate. Moreover, it is not relatively low abundance of the North Pacific DPS because information clear that a survey on a single day could Philippines/Okinawa portion of this not cited in the proposed rule (Okamoto reliably track abundance in a migratory DPS (∼1,000 individuals), fishing gear 2013) indicates the DPS is recovering at area if the timing of migration varies entanglement could seriously reduce its a rate similar to other North Pacific between years; a more reliable survey population size or growth rate. Given DPSs, and threats identified by NMFS design would be to have repeated this conclusion, and the BRT’s do not appear to be negatively surveys across a longer time period than uncertainty about the threats facing the impacting them. The commenter a single day. Second West Pacific portion of this DPS, asserted that NMFS’ analysis of threats We have reviewed the more recent we cannot conclude that bycatch of was speculative and overestimated. information provided by the commenter humpback whales in Japan or anywhere Further, the commenter stated that (Kato, unpublished), but this study is else is not having an impact on the additional surveys independent of also not reliable. This information status of the Western North Pacific DPS. SPLASH have been conducted in consists of a 2014 abstract of Mr. Please see the Western North Pacific Okinawa and Ogasawara, indicating the Nobuyuki Suzuki’s undergraduate DPS section below for our rationale for population is increasing in abundance thesis, supervised by Professor Hidehiro listing this DPS as endangered instead (unpublished study in Okinawa, by Kato, which reported an abundance of threatened (as proposed). Kato: 1989–2008 (16.9 percent growth estimate of 683 (CV = 0.10) humpback Comment 46: Japan notes that the rate); 2009–2028 (3 percent growth rate), whales migrating to the research area points raised above are all related to reaching pre-exploitation abundance in around the Okinawa main islands in Japan. In order to evaluate the status of 2029; and Okamoto (2013), indicating a 2009 and an estimated average annual the Western North Pacific DPS, a similar 4-fold sighting increase in abundance rate of increase of 16.9 percent (no examination should be done of all from 1997 to 2013 from 0.06 individuals confidence limits reported) from 1989– relevant countries that could impact the to 0.24 individuals per nautical mile 2008 and 3.0 percent from 2009–2028. status of this DPS. Japan notes that the (nmi) in Okinawa). The commenter adds A growth rate of 16.9 percent is not proposed rule states, ‘‘Some degree of that pre-exploitation abundance in the biologically plausible (Zerbini et al. IUU exploitation is also possible in Okinawa area of this DPS is likely to be 2010), so without further information it

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is difficult to know how to interpret this from uncertainty. Although there are DPS (proposed to be listed as estimate. We were not able to review the threats to this DPS and there is some threatened) and Hawaii DPS will mix to undergraduate thesis itself, and not uncertainty as to the particular effects, some extent during the summer in the enough information is given to we and the BRT viewed those threats Aleutians and the Bering Sea. As a understand exactly how the analysis against the backdrop of the population result, ESA section 7 consultations are and modeling was conducted, and level, which at around 1,000 is higher likely to continue in the area of overlap whether the thesis was submitted for than the level (500) that would indicate because of the difficulty in any external peer review. Further, this the population is at high risk from small distinguishing between individuals of study focused on whales around size alone. the two DPSs. Okinawa, but the Western North Pacific The situation here is distinguishable Response: We agree with the State of DPS also includes whales from breeding from that which was reviewed in the Alaska that the areas where individuals areas in the Philippines and other Greater Yellowstone Coalition case. of a listed DPS mix with individuals of unidentified areas, so the estimated There, FWS had decided to delist the a DPS that is not listed will result in growth rate does not necessarily reflect Yellowstone population of grizzly bears, difficulty in distinguishing between the growth rate of the entire DPS. concluding without adequate individuals of the two DPSs. Any Finally, we do not consider the estimate explanation that changes in whitebark Federal agency that funds, authorizes, or of pre-exploitation abundance (from the pine production were not likely to carries out an action that may affect a 2014 abstract of the undergraduate impact the bear to the point at which it listed DPS is required to consult with us thesis) in the Okinawa area of this DPS would be threatened. FWS reached this under section 7 of the ESA, so this to be reliable; as we have described, the conclusion despite the fact that the means that, in these areas where DPSs migration of North Pacific humpback record documented a close association of different status mix, section 7 whales is complex and the thesis between reduced abundance of consultation will still be required to appears to have ignored the fact that the whitebark pine seeds and increases in ensure that the threatened and Asia population would have also grizzly mortality, recent reductions in endangered DPSs are protected under experienced commercial whale catches whitebark pine due to pine beetles, and the ESA. Please see response to on its summer feeding areas in Russia, a potential for climate change to Comment 11, and the Western North the Aleutian Islands, and the Bering drastically affect the presence and Pacific DPS section for our rationale for Sea. In any case, given the relatively low distribution of whitebark pine seeds. listing the Western North Pacific DPS as abundance of this DPS, several other The court found that the decision to endangered instead of threatened (as remaining threats, and the significant delist the Yellowstone grizzly proposed). uncertainties associated with the population could not rationally be Comment 50: One commenter fully abundance estimate, we have changed reconciled with those particular facts in supports delisting the Hawaii DPS, our listing determination for this DPS, the record. The record before us does emphasizing that the Hawaii-based and we list it as endangered under the not present the kinds of documented commercial longline fisheries have no ESA instead of threatened (as proposed). effects that were present in the grizzly significant or detectable impact on the Please see the Western North Pacific bear case. Hawaii DPS (or humpback whales from DPS section below for our rationale for Nevertheless, we have found that, any other DPS), and any regulation of this change. upon reconsideration of the best the fisheries that may be necessary with Comment 48: One commenter available information, the Western respect to humpback whales is amply suggested that there is no information North Pacific DPS should be finalized as addressed by the rigorous provisions provided in the proposed rule’s an endangered species instead of as a contained in section 117 of the MMPA. discussion of the proposed Western threatened species as proposed. Please Response: We acknowledge the North Pacific DPS that allows an see the Western North Pacific DPS comment. Fisheries that interact with understanding of the BRT’s level of section for our rationale for listing this marine mammals are regulated under concern given the admittedly low DPS as endangered and our response to section 118 of the MMPA, so this will population size, unknown trend, and Comment 13 for discussion of the provide a mechanism for continued the fact that there is an precautionary approach. monitoring and evaluation of the impacts of fisheries on humpback acknowledgement that threats from Comments on the Hawaii DPS energy development, whaling, whales. We note that the Hawaii-based competition with fisheries, and vessel Comment 49: The State of Alaska longline fisheries have been determined collisions are considered moderately concurs with our proposal to not list the to have negligible impacts on humpback likely to reduce the population size or Hawaii DPS (which is consistent with whales (79 FR 24567; October 16, 2014). growth rate of this small, ‘‘remnant’’ Alaska’s petition) and to list the Comment 51: One commenter stated population. Further, this commenter Western North Pacific DPS as that a recent assessment found that 78 states, there is an acknowledgement that threatened. The State believes that any percent of whales in northern ‘‘there is great uncertainty’’ regarding potential threats to the Hawaii DPS from Southeastern Alaska had been non- threats and status of this proposed DPS. human disturbance can be controlled lethally entangled in fishing gear This commenter believes that we should through continued monitoring and (Neilson et al. 2009). have applied the precautionary management under the MMPA, the Response: Entanglement in fishing approach in the face of this uncertainty. Magnuson-Stevens Act, the Fisheries gear remains a risk to large whales The commenter included a citation to Act of Canada, and SARA, as well as the worldwide. Though these interactions the decision in Greater Yellowstone IUCN, IWC, and the CITES. The State occur in many regions, including the Coalition, Inc. v. Servheen, 665 F.3d goes on to say that information on the cases referred to in Southeast Alaska, 1015 (9th Cir. 2011). Western North Pacific DPS is limited, many are non-lethal (Bradford and Response: We are required to use the particularly regarding the wintering/ Lyman 2015) and collectively they do best available scientific and commercial breeding area used by the whales that not rise to a population level impact for information when making ESA listing feed in the Aleutians and western the Hawaii DPS (which comprises most determinations. We are not required to Bering Sea. It notes that individual of the humpbacks found in Southeast consider only information that is free whales from the Western North Pacific Alaska). The Hawaii DPS has continued

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to grow rapidly in spite of occasional approach regulations in Alaska and comprehensive management plan for entanglements. As required under the Hawaii. Sanctuary waters that will assist in MMPA, we assess marine mammal Comment 53: One commenter noted ensuring the species’ lasting survival. A serious injury and mortality levels that NOAA can take pride in the comprehensive ESA status review, resulting from human interactions, and improved status of the species, but too coupled with an updated and monitor these levels against the many risks still abound and the comprehensive Sanctuary management thresholds for removal that have been humpback whale is nowhere near its plan, should be completed prior to any calculated as sustainable for the historical numbers. The commenter discussion of species delisting. population. We collect, analyze, and indicates that whale strikes from tour Response: NOAA’s Hawaiian Islands respond to large whale entanglement ships and commercial vessels are on the Humpback Whale National Marine reports through the Marine Mammal increase each year, noticeably in Sanctuary is developing a revised Health and Stranding Program. Southeast Alaska where the number of management plan based on the relevant Comment 52: One commenter noted docks to accommodate them continually elements of the March 2015 draft that collisions of humpbacks and ships increases. The number of whale management plan that focused on appear to be increasing in important watching boats also increases every humpback whales and their habitat. breeding areas such as Hawaii (Lammers year. One study finds the whales are NOAA will work with the State of et al. 2003) and that available evidence adapting, but vigilance is warranted. Hawaii and the Sanctuary Advisory also suggests that ship strikes are The commenter also stated that Alaska Council on this revised management increasing in Alaska (Gabriele et al. is also in the forefront of experiencing plan. However, while we must consider 2007). the effects of climate change. In ongoing conservation efforts when Response: In general, it is difficult to northern Alaska, delisting may ease the making ESA listing determinations, the conclude that ship strike levels are way for underwater oil exploration. In ESA does not provide for extending the definitively increasing based on an Auke Bay, coastal development has timeframe to act on a proposed rule to increase in reports. For instance, in been excessive. Another commenter implement ESA listing determinations Alaska, following the implementation of stated that there are no boat speed limits in order to incorporate other a stranding hotline in 2009, many types in Hawaiian waters or limits on fish management plans. Therefore, we are of stranding reports increased, likely nets, adding that limits are needed on finalizing our proposed rule to revise due to heightened public awareness. krill fishing in Alaska. Further, the listing status of the humpback That said, large whale ship strikes removing endangered status from the whale. reported to NMFS in Alaska have been humpback whale will weaken legal Comment on the Mexico DPS fairly steady over the past decade protections that might limit the Navy’s (NMFS Alaska Region Stranding behavior toward the ocean (high speed Comment 55: One commenter noted Program data). Most collisions in Alaska ships, active sonar). that NMFS stated that the Mexico DPS involve small recreational vessels or Response: The threats mentioned in has no trend information, yet NMFS is whale watch boats with no apparent this comment are described very not listing it as endangered. long-term consequences for the whale. generally, and we have no indication Response: While we do not have trend NMFS is actively working with sectors that they will negatively impact information for the Mexico DPS by of the maritime industry on ship strike humpback whale DPSs on a population itself, there is population growth in avoidance and awareness programs. level. These whales will still be most of its primary feeding areas, and In Hawaii, Lammers et al. (2013) protected under the MMPA, which this led us to conclude that it is unlikely estimated that vessel collisions (i.e., any prohibits take and requires that marine to be declining, as we explained in the physical contact between a humpback mammal stocks are maintained at proposed rule (58 FR 22304; April 21, whale and a vessel) increased 20-fold optimum sustainable population levels. 2015). The abundance estimate we between 1976 and 2011, particularly We considered the potential for new relied on in our proposed rule for this between 2000 and 2011. As in Alaska, threats in developing our proposed DPS was 6,000–7,000, and this an extensive educational campaign and determinations, and we conclude that abundance estimate, along with hotline number were initiated in 2003 these threats are not likely to increase available information on the species’ and likely contributed to the increased the risk of extinction to any of the DPSs response to ongoing threats, indicated to number of reports of vessel collisions. not being listed to the point where they us that the Mexico DPS was not in However, the authors concluded that would warrant listing under the ESA. danger of extinction throughout all or a increasing numbers of humpback Finally, it is important to note that the significant portion of its range or likely whales in Hawaii was an important Monitoring Plan we are issuing today to become so within the foreseeable contributor to the trend. They also pursuant to section 4(g)(1) of the ESA future. However, the abundance suggest that an increase in the number establishes a framework for continued estimate has been updated to 3,264 (CV of vessels of a specific size and changes monitoring and assessment of threats for = 0.06), and we now conclude, in light in behavior of vessels around humpback the next 10 years (twice the minimum of the ongoing threat of fishing gear whales could affect the rate of vessel 5-year monitoring window required by entanglements which are believed likely collisions. Although the total number of the ESA). The risk of vessel collisions to have a moderate impact on this DPS, registered vessels in Hawaii has not will be addressed through the approach that the Mexico DPS is threatened. Lack significantly increased in recent years, regulations (See the Comments on the of definitive information on a growth registered vessels sized between 7.9 m Need for Approach Regulations section rate trend alone is not determinative of and 19.8 m has significantly increased. for details on our plans to implement a listing determination, which is based Approximately two thirds of reported approach regulations in Alaska and primarily on an assessment of threats to collisions involved vessels that were Hawaii). the species and consideration of within the 7.9 m to 19.8 m length range Comment 54: One commenter feels whether the current abundance is (Lammers et al. 2013). that now, more than ever, the Hawaiian sufficient to provide resilience against See the Comments on the Need for Islands Humpback Whale National those threats. Here, however, in Approach Regulations section for Marine Sanctuary should assume a combination with these other details on our plans to implement leadership role in drafting a considerations, we conclude that it does

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support a determination of ‘‘threatened’’ conclusion (Please see the Central Committee (Collins et al. 2008), and the for the Mexico DPS. (See the Mexico America DPS section for further commenter is correct, it was not (to our DPS section below for the rationale for rationale.) knowledge) and will not be published. our final listing determination.) This paper is available to the public Comment on the Brazil DPS because we have it in our files and can Comments on the Central America DPS Comment 57: One commenter noted provide it upon request. Nonetheless, Comment 56: Several commenters that the abundance estimate for the we note that our final listing stated that the Central America DPS proposed Brazil DPS is from the 1990s determination does not rely on that should remain endangered, not and the citation for its entanglement risk information. We have reviewed two threatened, because there are only 500– is from a 1998 study reporting that more recent papers (Collins et al. 2010, 600 individuals, and the BRT concluded calves are most heavily involved (a with abundance estimates of 4,314 (CV that 500 individuals indicates a high possible challenge to future = 0.19) for 2001–2004 and 7,134 (CV = risk of extinction due to low abundance. reproduction). The commenter stated 0.23) for 2004–2006) and the IWC (2012) One of these commenters noted that, that although it is clear that mortality is assessment of the Gabon stock for 2005, according to the status review report, ongoing and NMFS stated in the status which reported an abundance estimate the population trend is unknown, and review report of this DPS that there is of 9,484 (90 percent prediction interval vessel strikes and fishing gear ‘‘no current estimate of mortality,’’ it (PI) = 7465, 12221) and a growth rate of entanglement are likely to moderately proposed to remove ESA protection 0.045 (90 percent PI = 0.006, 0.081)). reduce population size or growth rate. from this DPS. The estimates in Collins et al. (2008) The other commenter noted that there Response: The commenter’s claim had a fairly substantial genotyping error were many uncertainties associated that the abundance estimate was based rate that would produce false negatives with the abundance estimate. Also, one on data from the 1990s is incorrect. In (missed matches), so Collins et al. of the commenters stated that this DPS the proposed rule (58 FR 22304; April (2010) corrected for this using an may serve as a conduit for gene flow 21, 2015), we cited Andriolo et al. estimate of genotyping error rates that between the North Pacific and the (2010), a study that is based on aerial they estimated by repeat genotyping of Southern Hemisphere. The Government surveys conducted off the coast of Brazil a subset of the samples. The Collins et of Costa Rica agreed that the SPLASH in 2002–2005. However, the population al. 2010 paper was reviewed in depth by study results clearly show that the growth rate estimate is based on data the Southern Hemisphere subcommittee Central America DPS is smaller than the from the 1990s (Ward et al. 2011), of the IWC Scientific Committee. In the Hawaii and Mexico DPSs and that the which is the best available information. IWC (2012) assessment, this committee distinction would facilitate the Because the abundance estimate is 6,400 decided that the best data to use were management and protection of this with a 7.4 percent growth rate, the BRT the male-only genetic mark-recapture segment of the population that uses the concluded that the Brazil DPS was at data (the data that gave the estimate of waters of Central America for the low risk of extinction. Based on this, we 7,134 (CV = 0.23)), and we agree. purpose of breeding and reproduction. concluded that, despite the presence of The IWC (2012) abundance estimate Response: We have reconsidered our threats, the Brazil DPS does not meet of 9,484 is an output from a very proposal, and we conclude that the the definition of a threatened or complicated assessment model. Central America DPS should be listed as endangered species. Although in principle it is appropriate endangered under the ESA. The BRT to use model-based estimates like this, reported that a preliminary estimate of Comment on the Gabon/Southwest the BRT did not do so in any other cases abundance of the Central America Africa DPS in its review, and this estimate is from population was about 500 from the Comment 58: One commenter noted a model that involved multiple stocks SPLASH project (Calambokidis et al. that NMFS stated that the Gabon/ and is thus not directly informative. 2008), or about 600 based on the Southwest Africa DPS has no trend Therefore, we will not rely on this reanalysis by Barlow et al. (2011). There information, yet NMFS is not listing it model output (and it does not make any are no estimates of precision associated as endangered. Another commenter difference to our evaluation of with these estimates, so there is stated that abundance estimates for the extinction risk). considerable uncertainty about the Gabon/Southwest Africa DPS are cited Further, the ‘‘estimate’’ of population actual population size (Bettridge et al. to a 2008 ‘‘unpublished’’ paper that is growth rate in IWC (2012) should not be 2015). Therefore, the actual population also inaccessible to the public. used as an estimate of trend; the IWC size could be somewhat larger or Response: With regard to the (2012) report makes this same smaller than 500–600. Even though the comment that we are not listing the conclusion. This was also a model BRT used 500 as a guideline between Gabon/Southwest Africa DPS as output from its Bayesian assessment moderate and high risk of extinction endangered, despite having no trend model, and IWC (2012) explains that (when considering abundance alone), information, please see our responses to this is not an estimate; rather, it is the abundance estimates include a high Comments 10 and 13. In all cases, we something that was pre-specified. We level of uncertainty, and we note that have based our listing determinations agree that it is better not to rely on this this number straddles that threshold. on the best available scientific and model output as an estimate of The BRT concluded that this DPS was commercial information, as required by population trend. between ‘‘moderate’’ and ‘‘high risk of the ESA. There is no requirement that Despite the threat of offshore extinction.’’ After reconsidering all of we have specific trend information hydrocarbon activity off the coast of the available information, we believe it where the data establish that the species west Africa, the BRT concluded that this is appropriate to give greater weight to is not currently endangered or DPS was not at risk of extinction, and the threats facing the Central America threatened. we agreed with the BRT’s assessment. DPS, and we are now listing the DPS as Regarding the comment on the The updated abundance estimate for endangered in this final rule. An abundance estimates being based on an this DPS is still significantly larger than updated abundance estimate of 411 for ‘‘unpublished’’ paper, the paper we 2,000, which is the population size the Central America DPS (Wade et al. relied on (Collins et al. 2008) was above which the BRT considered a DPS 2016) provides further support for this submitted to the IWC Scientific not to be likely to be at risk due to low

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abundance alone. We reaffirm our (Bannister 1994), and semi-quantitative trend, we determined that the DPS was proposed determination that the Gabon/ information indicated the population at low risk of extinction throughout all Southwest Africa DPS is not in danger had been increasing steadily since the or a significant portion of its range, of extinction throughout all or a 1960s. Then Paxton et al. (2011) currently and in the foreseeable future. significant portion of its range or likely estimated an increase of 9.8 percent Since the BRT’s review and to become so within the foreseeable between 1999 and 2005, and Hedley et publication of the proposed rule, we future. al. (2011) estimated a continued became aware of a more recent increase on the order of 12.5 percent publication (Constantine et al. 2012), Comments on the Southeast Africa/ between 2005 and 2008. The Kent et al. which included updated data from 2005 Madagascar DPS (2012) study cited by the commenter and a new analysis that included Comment 59: One commenter used completely different data from a genetic data to better account for asserted that there is a considerable different location, but still estimated an differences in capture probability discrepancy in population estimates increase of 13 percent (CI = 5.6 between individuals. cited in the status review report and percent¥18.1 percent) for the period We have considered this study for our derived from surveys in 2004–2006, 2000–2008. When Kent et al. (2012) final rule. This more recent publication almost a decade ago. This commenter combined the two data sets, they (Constantine et al. 2012) presents an added that various data sets and models estimated an 11.9 percent (SE = 2.6 improved estimate of abundance in the resulted in best estimates ranging percent) growth rate for 1999–2008. The region (4,329, 95 percent CI = 3,345– widely from 4,936 to 8,169. With regard West Australia DPS of the humpback 5,313) in 2005 and new estimates of to trend information, this commenter whale is, by any measure, very large, population growth rate (3–7 percent/ noted, NMFS cited land-based and has been steadily increasing for year for 1999–2005). There is now observations passing east South Africa decades at one of the highest measured published evidence that this population that included an estimate of the rate of growth rates of any whale. is growing. The previous abundance population increase of 12.3 percent Kent et al. (2012) noted that the estimate and available information on (which NMFS acknowledges is ‘‘outside coefficient of variation for the 13- the species’ response to ongoing threats biological plausibility for this species’’) percent growth rate estimate was too indicated that the DPS was not in and a second estimated increase of 9 large for a reliable trend estimate. danger of extinction throughout all or a percent that NMFS stated is within the Zerbini et al. (2010) had calculated that significant portion of its range or likely range calculated for other Southern 11.8 percent should be a maximum to become so within the foreseeable Hemisphere breeding grounds; yet it plausible growth rate for humpback future. The new estimate of population still stated that ‘‘both rates are whales. However, it is important to keep growth rate provides further support for considered with caution.’’ This wording in mind the nature of precision and this conclusion. regarding abundance and trend statistics, where the estimate can be Comment 62: One commenter noted incorporates a great deal of uncertainty larger than the true value. One would that a single DPS (Oceania DPS) has (i.e., wide range of population estimates, need an extremely precise estimate to be been proposed for the range of breeding words including ‘‘possibly,’’ ‘‘to a able to tell if a growth rate estimate is sites across the South Pacific Ocean smaller degree,’’ should be ‘‘considered significantly greater than the theoretical basin from New Caledonia to French with caution’’) and NMFS itself states maximum of 11.8 percent calculated by Polynesia and that NOAA also proposes that ‘‘given this uncertainty . . . it is Zerbini et al. (2010). to remove all protections under the likely the DPS is increasing but it is not ESA. The commenter notes that, last possible to provide a quantitative Comments on the East Australia DPS year, the Scientific Committee of the estimate of the rate of increase.’’ The We did not receive any substantive IWC completed an assessment of the commenter concludes that NMFS’ comments on this DPS, other than the recovery status of whales that breed in conclusion is subjective, risk prone, and general comment recommending this region, concluding that these inappropriate under the ESA. endangered status for all DPSs and DPS- breeding populations had only Response: Please see our response to related comments (see responses to recovered to within 37 percent of pre- Comment 13. Comments 3 and 4). whaling numbers as of 2012 (IWC 2015). This commenter notes that this is well Comments on the West Australia DPS Comments on the Oceania DPS below the 60 percent recovery threshold Comment 60: One commenter Comment 61: One commenter noted that was originally proposed as asserted that the best abundance that NMFS stated that the Oceania DPS indicative of recovery under the final estimate for the West Australia DPS has no trend information, yet NMFS is recovery plan. Furthermore, it is far provided in the status review report is not listing it as endangered. below apparent recovery of adjacent 21,750, based on a 2009 paper reporting Response: We based our proposal on breeding stocks off west and east on results of line transect surveys and the best available scientific and Australia (90 percent and 63 percent, with an estimated 10 percent annual commercial information. As noted respectively). The reason for this rate of increase that is at the elsewhere, the ESA does not require that relatively low recovery rate is not approximate limit of biological we have trend information in order to known, but this commenter believes plausibility. This commenter stated that make a determination under section that it is adequate cause for continuing a more recent study by Kent et al. (2012) 4(a)(1). The humpback whale status concern and listing under the ESA. provided caveats in this estimate but review report cited a preliminary report Another commenter asserted that the provided a ‘‘best estimate’’ of 26,100 (CI that estimated humpback whale proposal to identify and delist the = 20,152–33,272) and a rate of increase abundance in the Oceania DPS (New Oceania DPS is troubling, given the of 10–12 percent annually with a large Caledonia, Tonga, French Polynesia, major uncertainties underlying stock coefficient of variance, precluding a and Cook Islands) as 3,827 (CV = 0.12) definition and status. This commenter reliable trend estimate. in 1999–2004 (South Pacific Whale noted that the BRT itself showed Response: The work cited by the BRT Research Consortium et al. 2006). This substantial concern for this DPS (29 had documented an ∼10 percent rate of abundance estimate is large (>2,000) percent of the votes cast by the NMFS’ increase between 1982 and 1994 and, despite the unknown population BRT were suggesting a ‘‘moderate risk’’

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of extinction for this DPS). The ‘‘although it is known that sub- would not necessarily apply to DPSs in commenter stated that almost half of the populations differ in growth rates and the Southern Hemisphere. Please see BRT votes were in the same ‘‘moderate other demographic parameters’’ our response to Comment 8. risk’’ of extinction category for the (Bettridge et al. 2015 at 100). The The 1991 recovery plan recommended Okinawa/Philippines population, commenter stated that NMFS also an interim goal of doubling the which, together with the Second West acknowledged that some areas of the population size of the humpback whale Pacific portion of the Western Pacific historical range extent have not within 20 years because of uncertainty DPS, NMFS ultimately proposed for rebounded and there are others without surrounding historical abundance listing as ‘‘threatened.’’ This commenter historical whaling information to levels. However, as we explained in our expressed the opinion that these indicate pre- and post-exploitation proposed rule (80 FR 22304; April 21, distributions of votes should have levels. Most recently, the commenter 2015 at 22316–22317) and in our translated to equivalent levels of adds, the Scientific Committee of the response to Comment 8, the BRT protections for the Oceania and Western IWC concluded in a stock assessment focused its biological risk analysis North Pacific DPSs. that ‘‘. . . complexities in Oceania primarily on recent abundance trends The commenter added that numerous require further investigation due to (where available) and whether absolute studies indicate that humpback whales inadequate stock structure definition abundance was sufficient for biological in the Oceania DPS move among across the broad area, a lack of viability in light of consideration of the different island nations and mix with population trend data for most of the factors under section 4(a)(1). See individuals in the East Australia DPS region, and a lack of resolution and Rationale for Revising the Listing Status (Garrigue et al. 2000; Garrigue et al. understanding of connectivity in eastern of a Listed Species Under the ESA and 2010; Hauser et al. 2010) and asserted Oceania’’ (IWC Scientific Committee our responses to Comments 8 and 10 for that Garrigue et al. (2000) concluded, 2015). The commenter adds that both an explanation of why we do not need ‘‘[t]he documented movement of some the Federal Register notice and the to meet recovery criteria in a recovery whales among portions of Oceania status review report acknowledge that plan and why evaluating whether the indicate that stock assessments based on ‘‘[t]here is uncertainty regarding which population size has met the interim combining regional estimates of geographic portion of the Antarctic this growth rates for specific years is not the abundance are likely to be positively DPS uses for feeding. The complex best methodology for evaluating biased. In contrast with the apparent population structure of humpback extinction risk. We considered the best recovery exhibited in Area IV and in the whales within the Oceania region available scientific and commercial western portion of Area V, humpback creates higher uncertainty regarding information, and we determined that the whale abundance appears to remain low demographic parameters and threat abundance of the Oceania DPS (and in Oceania, presumably because of levels than for any other DPS.’’ now, the population trend estimate, as overexploitation in the feeding grounds To draw an analogy, the commenter discussed in our response to Comment of Area VI.’’ This commenter stated that asserted that the uncertainties 61) is at a level that demonstrates Hauser et al. (2010), not cited by NMFS underlying the proposed Cape Verde resilience against threats and does not in the status review report or the Islands/Northwest Africa DPS are a support a listing as threatened or proposed rule, stated, ‘‘the feeding major part of the rationale for NMFS’ endangered under the ESA. Moreover, ground connections with breeding areas determination to leave an area around as we have explained in response to in Oceania are among the poorest Cape Verde Islands classified as other comments, the Services may at known, as is the degree of movement endangered. However, the commenter any time apply the section 4(a)(1) between different areas in the stated, in the face of similar uncertainty factors directly in considering the southwestern South Pacific.’’ Further, regarding the proposed Oceania DPS, appropriate listing status for a species the commenter noted, Garrigue et al. NMFS proposed to delist these and is not bound to apply the recovery (2006) analyzed whales from New humpback whales despite admitting criteria, which are merely proxies for Caledonia and Tonga using both photo- that it has no reliable population those factors. and genetic-ID and found ‘‘significant abundance or an estimate of trend(s) in Next we respond to the commenter differences in the FST and AST for the various sub-divided areas in the who asserted that the BRT’s allocation mitochondrial and nuclear markers, region, and despite acknowledging that of 29 percent of likelihood points to the strongly suggesting differentiation the area used for feeding grounds is ‘‘moderate’’ risk of extinction category among the Breeding Stock E, supporting unknown. This is particularly troubling for the Oceania DPS should have the proposed sub-stock division for New to the commenter, considering that the translated to equivalent levels of Caledonia (E2) and Tonga (E3).’’ The agency admits that there is a higher protections for the Oceania and Western commenter asserted that NMFS ‘‘uncertainty regarding demographic North Pacific DPSs because the BRT arbitrarily lumped these various areas parameters and threat levels [for the allocated less than half of its likelihood into a single DPS without explaining proposed Oceania DPS] than for any points to the ‘‘moderate’’ risk of why they constitute a single breeding other DPS.’’ extinction category for the Okinawa/ stock that differs from the IWC Response: As we explained in the Philippines portion of the Western management scheme and contradicts proposed rule (80 FR 22304; April 21, North Pacific DPS. The BRT allocated observations of researchers whose work 2015 at 22317), the 1991 Humpback 44 percent of its likelihood points to the suggests a complex situation within Whale Recovery Plan did not identify ‘‘moderate’’ risk of extinction category breeding grounds in which there may be specific numerical targets based on the and 36 percent to the ‘‘high’’ risk of either mixing of stocks or, contrarily, recovery criterion that populations grow extinction category for the Okinawa/ isolation in and between different areas to at least 60 percent of their historical Philippines portion of the Western within the region. (pre-hunting) abundance because of North Pacific DPS, and 47 percent of its The commenter further noted that uncertainty surrounding historical likelihood points to the ‘‘moderate’’ risk NMFS indicates there is no trend abundance levels. Further, the Recovery of extinction category and 14 percent to information available, the DPS is ‘‘quite Plan focused on the North Pacific and the ‘‘high’’ risk extinction category for sub-divided,’’ and the population North Atlantic populations, so recovery the Second West Pacific portion of this estimate applies to an aggregate criteria outlined in the Recovery Plan DPS. For the Oceania DPS, the

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distribution of points was quite different significant differences between artisanal fisheries represent serious in that 68 percent of the points were populations are not sufficient threats to the conservation of large allocated to the ‘‘not at risk of justification for identifying DPSs. cetaceans in Peru and the Southeast extinction’’ category, reflecting much Comment 63: One commenter noted Pacific and need to be addressed by more certainty about the low level of that the longest humpback whale national and regional conservation extinction risk of this DPS compared to migration on record is not from Costa authorities’’ (Garcı´a-Godos et al. 2013). that for the Western North Pacific DPS Rica to Antarctica (Rasmussen et al. The commenter quoted from a study (which will now, coincidentally, be 2007) as stated on page 24 of the during a single year in Ecuador that listed as endangered under this final proposed rule (80 FR 22304; April 21, extrapolated observed bycatch rates, rule). We see no parallel between these 2015 at 22308); rather, they state, the resulting in a total bycatch in Ecuador two examples. longest minimum return movement has in 2005 ‘‘estimated to be 25 whales (C.I. The comparison the other commenter been documented as 18,840 km from 95 percent, 20–32). This high bycatch made between the Oceania and Cape American Samoa to the Antarctic rate is the result of the over- Verde Islands/Northwest Africa DPSs is Peninsula (Robbins et al. 2011). This dimensioned artisanal fishing fleet and not valid. We have a much higher extreme movement is an example of the the lack of fishing management’’ (Felix abundance estimate for the Oceania DPS complexity of movement in the South et al. 2005). The commenter stated that (approximately 4,300 whales compared Pacific, and the challenges that we face Alava et al. (2011) confirmed that this to less than 100 for the Cape Verde in understanding its status. bycatch is continuing in Ecuador, Islands/Northwest Africa DPS), good Response: We appreciate the updated estimating that ‘‘bycatch mortality is information on where whales are, some information on the longest humpback equivalent to 15 or 33 whales a year’’ information about movements between whale migration distance. The updated depending on assumptions of areas, and a fair degree of reliability information on maximum migration population size interacting with the around the abundance estimate. In distance has been considered but does estimated 15,000 vessels fishing off contrast, there is a great lack of not cause us to change the Ecuador; these authors expressed knowledge and study of the Cape Verde determinations in this final rule. Our concern about the Southeastern Pacific Islands/Northwest Africa DPS, and only listing determinations are supported by DPS’ breeding grounds becoming a hot one genetics study that indicates there consideration of the best available spot for bycatch and cautioned that is more than one breeding population scientific and commercial information. ‘‘mitigation strategies and precautionary for humpback whales feeding in central Comments on the Southeastern Pacific management and conservation measures and eastern North Atlantic. It is DPS are required to protect this vulnerable appropriate to use additional caution in stock of whales in the long term.’’ The the case of the Cape Verde Islands/ Comment 64: Two commenters noted commenter added that we did not Northwest Africa DPS, given the that NMFS stated that the Southeastern consider this study, which also depicts considerable uncertainty about where Pacific DPS has no trend information, a declining birth rate off Ecuador— the central and eastern North Atlantic yet NMFS is not listing it as endangered. contrasting to higher birth rates in animals breed and the likelihood that One of these commenters noted that the Colombian calving areas. The the abundance of this DPS is extremely study on which NMFS relies for the commenter noted that the authors warn, low (less than 100). population estimate uses data collected ‘‘[c]onsidering low birth rates [off We know there are significant genetic from non-systematic sightings by whale Ecuador] of less than 8% and 62% differences between some of the watch vessels, data that NMFS virtually survival rates for this stock and possibly regional breeding grounds within the never uses for its U.S. stock assessments ∼1% of the total population bycaught Oceania DPS, but, unfortunately, there because of the unreliability of data from per year, the bycatch problem seems to are no accepted estimates of abundance non-systematic tracks used by be far more severe and can pose a for some of the regions currently commercial whale watching vessels. serious threat for this humpback whale aggregated into the Oceania stock (e.g., Having provided that population population survival.’’ Tonga, French Polynesia). Even if we estimate, the commenter added, NMFS This commenter noted that Capella had reliable regional estimates, we have failed to include in the discussion an Alzueta et al. (2001), cited in the status no way of allocating the historical important recommendation from this review report, looked at stranded catches in the Antarctic feeding grounds study, which was that there is a pressing animals and found the ‘‘annual to regional breeding grounds, with need for information on ‘‘population frequency of occurrence over the 15- confidence. Therefore, the IWC chose to parameters such as survival and birth year period indicates an increasing undertake the comprehensive rates, population growth rates and trend of entanglement and vessel strike assessment for Oceania as an aggregate, movements, all of which are still poorly since 1996.’’ The commenter asserted and the BRT took this same approach. known for this population’’ (Felix et al. that the BRT mislead readers by The commenter who expressed concern 2011). This commenter stated that it implying that humpback whales are not about the likelihood of a positively would seem important to better struck by ships, even though Capella biased estimate for the Oceania DPS understand all of this information before Alzueta et al. (2001) report increasing because of the exchange among areas proposing to remove all protections. trends in carcasses evidencing both makes a good point. On the other hand, One commenter expressed concern vessel collisions and entanglement. abundance estimates are also likely to about the threat of fishing gear With regard to other threats to this be negatively biased because we are entanglement, noting that NMFS stock, the same commenter noted that almost certainly not surveying some indicated that entanglement poses the the status review cited a study from ten significant habitats within the vast area most serious risk to this DPS. The years ago that found that oil and gas of Oceania, and as a result, there are commenter stated that the problem of production is increasing in Ecuador and probably many whales with a zero entanglement is significant enough for stipulated energy development is likely probability of capture in the survey the proposed Southeastern Pacific DPS to expand if oil and gas reserves are years that lead to abundance estimates. that researchers have recently warned discovered in the area but indicated that Please see our response to Comment 5 that the ‘‘intensive use of gillnets and ‘‘it does not currently pose a threat to for an explanation of why statistically the increasing use of longlines in this population.’’ Indeed, the

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commenter asserted, there is increasing portion of its range or likely to become humpback whales, it may slow its onshore production that requires so within the foreseeable future. population recovery.’’ ‘‘Population additional shipping and, as the status As we have acknowledged, the BRT recovery’’ as used by the commenter review report indicates, there is a spill concluded that fishing gear does not have the same meaning as risk from difficult navigation in the area. entanglement is likely to moderately ‘‘recovery’’ under the ESA; instead, it The commenter stated that NMFS reduce the abundance or population refers to the goal of reaching historical should be evaluating the threat over the growth rate of the Southeastern Pacific abundance or carrying capacity, which, foreseeable future, not just at the present DPS. The commenter cited Garcı´a- as we explained in our response to time. Godos et al. (2013) in asserting that this Comment 9, is not the goal of recovery This commenter also asserted that the threat needed to be addressed by under the ESA. We are required to status review report insufficiently national and regional conservation determine whether a species is actually addressed krill harvest, and that this authorities. Garcı´a-Godos et al. (2013) threatened or endangered because of harvest may well be increasing with the expressed concern about the 10 any of the ESA section 4(a)(1) factors; decline in abundance of other humpback whales entangled off Peru we consider the information known commercial fishery targets and the between 1995 and 2012 and suggested about threats over the course of the indication from the Marine Stewardship that this was likely a small fraction of foreseeable future, but we are not Council that it is willing to certify fishing gear entanglements because the permitted to rely on speculation about Antarctic krill harvests as sustainable. data-collection methodology applied future impacts. We agree with the BRT The commenter stated that the likely was largely opportunistic. They that the Southeastern Pacific DPS is not impact of this increasing harvest is recommended a nationally and currently threatened by vessel strikes. compounded by increasing warming of regionally integrated stranding network We disagree that there is a sufficient the Antarctic waters and range along the Peruvian coast, capable of basis to predict serious impacts in the contraction of krill. monitoring the impacts of fisheries and foreseeable future. We reaffirm our The commenter concluded that, given shipping on populations of large conclusion that ship strikes pose a low cetaceans off Peru, as well as the acknowledgement that ‘‘population risk to this DPS now or within the encouraging reporting of whale parameters such as survival and birth foreseeable future. entanglements by fishermen and raising rates, population growth rates and With regard to climate change impacts awareness among fishermen and coastal movements . . . are still poorly known on the availability of krill to humpback communities of the impacts of whale for this population’’ and, in light of entanglements, potential preventive and whales, please see our response to threats to this population from mitigation measures, and reporting Comment 25. With regard to the entanglement, future fishery conflicts in duties. We agree that all of these commenter’s concern about certification a warming ocean, it appears premature recommendations would benefit of krill fisheries, to date, the Marine to remove this stock from the humpback whales in the Southeastern Stewardship Council has certified two protections offered by its ESA listing. Pacific DPS, but we do not agree with krill fisheries in the Antarctic, Aker Response: Abundance estimates for the commenter’s assertion, based on Biomarine and Norwegian Olympic the Southeastern Pacific DPS suggest fishing gear entanglements off Peru and Seafood (see https://www.msc.org/ that it is increasing. While we still do Ecuador, that this threat is likely to newsroom/news/msc-responds-to- not have trend information for this DPS, negatively impact this DPS to such a questions-about-antarctic-krill- we based our proposal on the best degree that extinction risk is increased. certification and https://www.msc.org/ available scientific and commercial The abundance of this DPS is high, and newsroom/news/antarctic-krill-fishery- information. The abundance estimate of we do not consider the threat to be achieves-msc-certification/ 6,504 individuals (95 percent CI: 4,270– causing the DPS to be threatened or ?searchterm=krill). The Commission for 9,907) is likely to be an underestimate endangered. Most of the threats the BRT the Conservation of Antarctic Marine because, as we stated in the proposed evaluated are subject to various Living Resources (CCAMLR) came into rule, only a portion of the DPS was national, international, and/or local being at least in part to address concerns enumerated for this estimate. This regulations, and the BRT determined that an increase in krill catches in the estimate is much higher than 2,000, and that the adequacy of these regulations is, Southern Ocean could have a serious the BRT did not consider populations at least to a large degree, reflected in the effect on populations of krill and other larger than 2,000 to be at risk due to low overall biological status of the species. marine life, particularly on birds, seals, abundance alone. All threats other than The BRT also considered the adequacy whales, and fish, which mainly depend fishing gear entanglement are likely to of the major regulations governing these on krill for food. The 25 governments of have no or minor impact on population threats when making predictions about CCAMLR that regulate the krill fishery size and/or the growth rate or are future status. Please see Comment 65 for have adopted a precautionary approach unknown for the Southeastern Pacific a list of ongoing conservation efforts in to minimize risk, and they set the DPS. Despite our conclusion that fishing Colombia, where humpback whales overall quotas to specifically take into gear entanglements are likely to from the Southeastern Pacific DPS are account the needs of dependent moderately reduce the population size more concentrated. predators. CCAMLR is widely regarded or the growth rate of this DPS, the large With regard to the comment about as the most precautionary of all population size makes this threat ship strikes, again, we do not consider organizations in terms of setting catch unlikely to contribute significantly to this to be a significant threat to the quotas. The total krill catch allowed in the extinction risk of the Southeastern Southeastern Pacific DPS. The the fishery area (CCAMLR Area 48) Pacific DPS, now or in the foreseeable commenter neglected to provide a more represents just 1 percent (620,000 future. (Also, see our response to full statement of the conclusion from tonnes) of the population of krill Comment 21 for possible explanations Capella Alzueta et al. (2001), which (estimated at 62 million tonnes). for an increase in number of fishing gear stated, ‘‘[w]hile the current rate of Olympic Seafood currently catches entanglements.) Therefore, we conclude mortality from human related activities around 3 percent (15,000 tonnes) of the that this DPS is not in danger of (fishing gear or vessel strike) does not 620,000 tonnes catch limit set by extinction throughout all or a significant appear to seriously threaten this stock of CCAMLR. By contrast it is estimated

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that predators eat at least 20 million Response: The comment is unclear. convene as soon as possible to tonnes annually (32 percent total krill Our proposal to list the Arabian Sea determine if any of the DPSs proposed biomass). Trigger levels are set so that DPS as endangered was partially based to be delisted are below their OSP. The fishing cannot be too concentrated in on the potential impact of climate commenter also recommended that in one area. At these low rates fishing has change within the foreseeable future on the future NMFS consider rulemaking a very minimal impact on predators and a species that is so restricted approaches that would avoid any lapse other species in the food chain. geographically that it cannot adapt to in depleted status for stocks that are Given what we know about the climate change by moving elsewhere. In below their OSP. Southeastern Pacific DPS of the any case, we are finalizing a listing for Response: The specific charge to the humpback whale and the threats it this DPS at the highest possible level Humpback Whale BRT was to assess faces, we still conclude that the DPS is (endangered). and describe the status of humpback at low risk of extinction, now and whales pursuant to the ESA, and to Comments on ‘‘Depleted’’ Status under identify potential DPSs and evaluate the within the foreseeable future. We have the MMPA based our determination on the best extinction risk of those potential DPSs. available scientific and commercial Comment 67: Several commenters NMFS did not ask the BRT to determine information, including an evaluation of asserted that removal of any DPSs from MMPA stock delineations or evaluate ongoing conservation efforts (see our the list of endangered or threatened any MMPA stocks relative to OSP response to Comment 65). species would result in loss of depleted because NMFS did not want to conflate status under the MMPA. The Comment 65: The Directorate for the two laws and their different commenters noted that NMFS could re- Marine and Coastal Affairs and Aquatic standards for evaluating species and designate a species or stock as depleted Resources (DAMCRA) of the Colombian populations. As described below in the if warranted. Ministry of Environment and ‘‘Effects of this Rulemaking’’ section, at Response: We agree with the the time of a delisting, NMFS may Sustainable Development stated that it commenters that a species or stock that choose to initiate a rulemaking under will maintain the humpback whale as is considered to be depleted solely on MMPA section 115(a) if information in ‘‘vulnerable’’ (IUCN), and it provided the basis of an ESA listing loses that its files or information presented by a references for population size estimates status if it is removed from the list of Scientific Review Group indicates that in Malaga Bay (857—Florez-Gonzalez et threatened or endangered species. the species or stock is below its OSP. In al. 2007) and Gorgona Island (1,366— Section 3(1) of the MMPA defines such cases, NMFS agrees that it would Escobar 2009; Caballero et al. 2000, ‘‘depleted’’ as ‘‘any case in which:’’ (1) be beneficial to avoid or minimize any 2001, 2009). It also provided some the Secretary ‘‘determines that a species lapse in depleted status and associated biological and conservation effort or population stock is below its MMPA protections for marine mammals information (the Plan of Action for the optimum sustainable population;’’ (2) a that may be below their OSP. NMFS is Conservation of the Aquatic Mammals state to which authority has been evaluating different approaches to in the Southeast Pacific of the delegated makes the same minimize any such lapse. Permanent Commission of the Southeast determination; or (3) a species or stock Comment 69: One group of Pacific; the Strategy for the ‘‘is listed as an endangered species or a commenters asserted that depleted Conservation of the Humpback Whale of threatened species under the [ESA]’’ (16 status under the MMPA should be the Southeast Pacific; the recent U.S.C. 1362(1)). In the case of a species maintained for all humpback whales. adhesion of Colombia to the or stock that achieved its depleted status The commenters stated that any change International Whaling Commission for solely on the basis of its ESA status, the in an unlisted DPS’ depleted status can the Regulation of the Hunt of Whales species or stock would cease to qualify occur only through a separate (Law 1348 of 2009); National Action as depleted under the terms of the rulemaking. Plan for the Conservation of the Aquatic definition set forth in section 3(1) if the Response: We disagree with the Mammals of Colombia; the Diagnosis of species or stock is no longer listed as commenters. Consistent with the D.C. the State of Knowledge and threatened or endangered. Humpback Circuit’s opinion in In re Polar Bear Conservation of the Aquatic Mammals whales were considered depleted Endangered Species Act Listing and in Colombia; and the Plan of Migratory species-wide under the MMPA solely on Section 4(d) Rule Litigation, 720 F.3d Species, Diagnosis and Identification of the basis of the species’ ESA listing. 354 (D.C. Cir. 2013), we believe that the Actions for the Conservation and the Upon the effective date of this rule, process described in MMPA section Sustainable Management of Migratory humpback whales that are listed as 115(a) applies only to the first basis for Species of the Biodiversity in Colombia. threatened or endangered will retain designating a species as depleted (i.e., Finally, Colombia also provided a paper depleted status under the MMPA. when the agency determines that the by Carmona et al. (2011) entitled Humpback whales that are not listed as species is below its OSP). Therefore, we ‘‘Occurrence and encounter rates of threatened or endangered will not have are required to issue a rule in marine mammals in the waters around depleted status under the MMPA. We accordance with the process described the Malpelo Island and to the note that the DPSs established in this in section 115(a) to determine that a continent.’’ final rule that occur in waters under the species or stock is no longer depleted in Response: We acknowledge and jurisdiction of the United States do not cases where we previously issued a rule appreciate the information Colombia equate to the existing MMPA stocks for pursuant to section 115(a) designating has provided and are encouraged to which Stock Assessment Reports (SARs) the species or stock as depleted on the know about Colombia’s humpback have been published in accordance with basis that it is below its OSP. However, whale conservation efforts. section 117 of the MMPA (16 U.S.C. in the case of a species or stock that 1386). For further information on how achieved depleted status solely on the Comments on the Arabian Sea DPS this rulemaking affects existing MMPA basis of an ESA listing, depleted status Comment 66: One commenter stocks in U.S. waters, please see ‘‘Effects automatically terminates if the species asserted that we underestimated the risk of this Rulemaking,’’ below. or stock is removed from the list of of climate change vs. geography-based Comment 68: One commenter threatened or endangered species. For protections for the Arabian Sea DPS. suggested that NMFS ask the BRT to re- more information, please see the

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response to Comment 67 and ‘‘Effects of Response: We did not propose any effective date of this final rule, the this Rulemaking,’’ below. changes to the MMPA, which is a existing regulations at 50 CFR Comment 70: One commenter stated Federal law that may only be amended 224.103(a) will be deleted and that that PBR for the MMPA Gulf of Maine by Congress. paragraph of the regulations reserved. stock would increase from 2.6 to Comment 72: One commenter stated However, given the importance of the between 13.4 and 26 if the West Indies that if the West Indies DPS is not listed issue, we have determined that DPS is no longer ESA-listed. The under the ESA, NMFS should reevaluate approach regulations in Hawaii should commenter noted that current fishery- the inclusion of humpback whales as a be developed through a separate related mortality is 7.2 individuals per strategic stock in the ALWTRP. For rulemaking under the MMPA, in the year, which is above the current PBR example, how does the MMPA Gulf of form of an interim final rule published but would likely be below the new PBR Maine stock (800 minimum population elsewhere in today’s issue of the and thus this stock would no longer be size, PBR = 2.7) and its management Federal Register. As detailed in the a priority under the MMPA. align with the West Indies DPS? If the separate interim final rule, we have Response: The Gulf of Maine stock of Gulf of Maine is one of the primary determined that relying solely on humpback whales partially coincides feeding grounds for the West Indies protections within the Sanctuary would with the West Indies DPS, which is no DPS, how can the population estimate be inadequate. Comments received in longer listed under the ESA. Therefore, used in the ALWTRP 2014 final rule be response to the request for information the Gulf of Maine stock will no longer so much smaller than that which is on this topic through our proposed rule have depleted status under the MMPA. described in the proposed rule? There were considered in connection with that The stock’s PBR is expected to increase needs to be clear and sensible interplay process. There will also be a further following the change in depleted status, between the ESA, MMPA, and opportunity for comment in response to because the depleted status affects the ALWTRP. the interim final approach regulations. Response: We plan to review the selection of the recovery factor used in To clarify the issues raised by the MMPA Gulf of Maine stock delineation the PBR calculation. Despite the fact commenter, we have not determined with respect to the West Indies DPS in that vessel collisions pose a negligible that fishery-related mortality was the near future. Any resulting change in impact to the Hawaii DPS; we did, exceeding the previously-defined PBR stock delineation, strategic status, PBR, however, find that the mortality and for the Gulf of Maine stock (2.6), the or other MMPA section 117 elements serious injury incidental to Hawaii abundance of the West Indies DPS is would be proposed in future stock deep-set and shallow-set longline large and increasing. The Gulf of Maine assessment reports following Scientific fisheries have a negligible impact on stock is only a small component of the Review Group review, with opportunity this DPS (79 FR 62105; October 16, total West Indies DPS of the humpback for public comment. Once final, any 2014). While the analysis considered all whale. The best estimate for the total changes would be reflected in other sources of human-caused mortality and population of humpback whales in the related management programs, as serious injury, including vessel strikes, Gulf of Maine stock is 823 animals appropriate. Humpback whales will the determination was specific to these (Waring et al. 2014), while the overall remain within the scope of the ALWTRP fisheries. population of the West Indies DPS is regulations unless changed by separate Comment 74: One commenter stated estimated to be between 10,400 and rulemaking, and this is not affected by that approach regulations under the 10,752 individuals (Bettridge et al. the action we take today. MMPA should be issued in Hawaiian 2015; please see response to Comment waters and that we should work with Comments on the Need for Approach 31). We plan to review the MMPA Gulf the Sanctuary on its regulations. of Maine stock delineation with respect Regulations Response: As noted above, we to the West Indies DPS in the near Comment 73: One commenter stated developed a separate interim final rule future. Any resulting change in stock that approach regulations are not to promulgate approach regulations for delineation, strategic status, PBR, or necessary in Hawaii because vessels do Hawaii under the MMPA, and this has other MMPA section 117 elements not pose a threat to the population. The been done in coordination with the would be proposed in future stock commenter added that the Sanctuary Sanctuary managers. We believe the assessment reports following Scientific regulations provide enough protection, approach regulations that we are Review Group review, with opportunity given the high density of humpback issuing, published elsewhere in this for public comment. whales there that overlap with whale issue of the Federal Register, are largely Comment 71: One commenter stated watching. Further, the commenter consistent with the Sanctuary’s that the MMPA is adequate in suggested, NMFS determined that vessel regulations. identifying depleted status, and no collisions pose a negligible impact to Comment 75: The State of Hawaii change is necessary to the MMPA at this the Hawaii DPS and, when they do Department of Land and Natural time. Under 16 U.S.C. 1362, section occur, there is little warning, so Resources (DLNR) noted that references 2(1)(A), ‘‘the Secretary, after approach regulations would not be to Hawaii State law protections were consultation with the Marine Mammal helpful. Instead, the commenter believes missing from the proposed rule. Under Commission and the Committee of we should enhance outreach efforts to Hawaii Administrative Rules (HAR) Scientific Advisors on Marine Mammals educate the public on safe approach section 13–244–40, the Hawaii DLNR established under subchapter III of this distances. prohibits approach within 100 yards of chapter, determines that a species or Response: We appreciate the a humpback whale in State waters (0– population stock is below its optimum comments received in response to our 3 nmi). Under HAR sections 13–256–16 sustainable population.’’ This request on this issue. As a direct and 19, the Hawaii DLNR prohibits the mechanism authorizing the Secretary to consequence of our final listing use of thrill craft and parasail vessels off declare any DPS of the humpback whale determination, the current regulations South and West Maui to avoid possible as ‘‘depleted’’ is an open and protecting whales from approach in adverse impacts on humpback whales. transparent process and is adequate use Hawaii, which were promulgated only The Hawaii DLNR recommends that the of the best available scientific under authority of the ESA, are no final rule include references to the State information. longer supported. Therefore, upon the of Hawaii’s relevant rules.

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Response: We acknowledge the Response: We appreciate the State of on any action they authorize, fund, or Hawaii DLNR’s comment and appreciate Alaska’s comments, and we concur. In carry out that may affect the area to the reference to their regulations. a separate, direct final rule (publishing ensure that the action is not likely to Comment 76: The Hawaii DLNR also elsewhere in today’s issue of the destroy or adversely modify that habitat stated that the March 26, 2015, NOAA Federal Register), we are publishing a (16 U.S.C. 1536(a)(2)). rule revising regulations within the technical correction making minor There are separate tools for protection Sanctuary proposed to strengthen the amendments to the regulations currently of habitat that are beyond the scope of Sanctuary’s humpback whale approach set out in the part of the Code of Federal this rulemaking. For example, section regulation to address ‘‘interceptions,’’ Regulations that applies to endangered 112(e) of the MMPA gives us authority otherwise known as leapfrogging (80 FR marine and anadromous species (at 50 to promulgate regulations to protect 16223). It noted that, though the State CFR 224.103(b)) and recodifying them habitat for strategic stocks. Stocks that can regulate vessel approach out to 3 so that they also appear in the part that maintain depleted status (see Comments nm, and the Sanctuary can regulate applies to threatened marine and on ‘‘Depleted’’ Status under the MMPA) approach in Federal and State waters of anadromous species (at 50 CFR 223.214) due to endangered/threatened status the Sanctuary, these efforts alone do not and in the part setting out MMPA will remain strategic. Other laws will sufficiently protect humpback whales regulations (at 50 CFR 216.18). Setting continue to protect habitat used by from vessel interactions throughout the out these approach regulations at 50 humpback whales (e.g., Clean Water Hawaiian Islands and out to the seaward CFR 223.214 will ensure that threatened Act, National Environmental Policy boundary of the U.S. EEZ (200 mi). humpback whales in Alaska (which Act). Therefore, the Hawaii DLNR encourages includes the threatened Mexico DPS) Comment 81: One commenter stated NOAA to promulgate the 100-yard will also be protected under the ESA that critical habitat is not necessary in approach regulations and 1,000-ft approach regulations. As noted above, Guam and the Commonwealth of the overflight regulation under the MMPA, we have determined that the Western Northern Mariana Islands (CNMI) as this would make regulations North Pacific DPS is endangered instead because it is unlikely to provide a consistent throughout state and Federal of threatened (see Western North Pacific measureable conservation benefit to the waters off Hawaii, thus improving DPS section for rationale), so the DPS and there are no threats there to the compliance. NOAA should also approach regulations will also remain at Western North Pacific DPS. Another consider including those provisions 50 CFR 224.103 for their continuing commenter stated that, despite NMFS’ from the Sanctuary proposed rule that protection. Setting the regulations out at clear statutory mandate, NMFS has address leapfrogging. The Hawaii DLNR 216.18 reflects that the approach never designated critical habitat for intends to adopt these provisions. regulations in Alaska were also humpback whales. This commenter Response: We are issuing an interim originally promulgated under the noted that amending the listing status final rule to implement approach authority of the MMPA and that they for humpback whales would trigger regulations in Hawaii under the MMPA, protect all whales in Alaskan waters NMFS’ duty anew. If NMFS goes published elsewhere in this issue of the whether listed under the ESA or not. forward with its proposal, this Federal Register. These regulations are Comments on Critical Habitat commenter asserted, NMFS must similar to the State of Hawaii designate critical habitat for any and all Comment 78: Colombia provided an regulations and the Sanctuary ESA-listed humpback whale atlas of distribution, migratory routes, regulations, and they include an populations in U.S. waters. and critical and threatened habitat for additional provision prohibiting large whales in the East Pacific. Response: The humpback whale was interception (or ‘‘leapfrogging’’). Please Response: We appreciate the first listed under the precursor to the see the interim final rule published information. However, pursuant to the ESA in 1970, and was transferred to the elsewhere in today’s issue of the regulations implementing the ESA, we list of endangered species under the Federal Register for additional details. lack authority to designate critical original ESA before the statute was Comment 77: The State of Alaska habitat in non-U.S. waters (50 CFR amended to require designation of noted that NMFS promulgated the 424.12(g)). critical habitat for listed species. approach regulations in Alaska under Comment 79: Jamaica stated that the Therefore, there was no statutory both the ESA and the MMPA, so if the Silver-Navidad-Muchoir bank complex requirement to designate critical habitat ESA status of the Hawaii DPS is revised, is a major breeding area in the West for the endangered humpback whale. the authority under MMPA should Indies and could qualify as critical We agree with the commenter that, remain. For the Western North Pacific habitat. upon revising the listing status of the DPS, which is proposed to be listed as Response: We appreciate Jamaica’s humpback whale to recognize 14 DPSs threatened, authority for this regulation comment. However, pursuant to the and list five of them as threatened or under both the ESA and MMPA should regulations implementing the ESA, we endangered, the obligation arises to be valid. The State supported retaining lack authority to designate critical designate critical habitat in areas under the approach regulations in U.S. waters habitat in non-U.S. waters (50 CFR U.S. jurisdiction for the listed DPSs to off Alaska because of the conservation 424.12(g)). the maximum extent prudent and benefits that will accrue to both the Comment 80: One commenter noted determinable (16 U.S.C. 1533(a)(3)(A)). proposed threatened Western North that protecting habitat will be difficult Our regulations provide that critical Pacific DPS and to the increasing without the additional protections of the habitat is not determinable when data number of whales in the Hawaii DPS ESA, and most of the threats require sufficient to perform required analyses that frequent Alaska waters in summer. active management of habitat. are lacking and/or the biological needs Potential areas of concern at present for Response: A critical habitat of the species are not sufficiently well this DPS include ship strikes and designation has limited regulatory effect known (50 CFR 424.12(a)(2)). At this entanglements, which are currently at and does not mean that NMFS will time, we find that critical habitat is not low levels, but continued enforcement actively manage habitat. Rather, when determinable for both of these reasons, of approach regulations will assist in an area is designated as critical habitat, as discussed further in the ‘‘Effects of keeping those levels low. Federal agencies must consult with us this Action’’ section, below.

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We are currently evaluating the an effort to gather data from all developing a recovery plan will take too habitat needs of humpback whale DPSs humpback whale DPSs that are not long. that occur in U.S. waters to determine listed under the ESA. With regard to Response: We disagree. Under the habitat areas that may be essential in reconvening a BRT after 5 years, the MMPA we are required to assess supporting the conservation of the ESA requires us to conduct a 5-year strategic marine mammal stocks in the species, including areas occupied at the review after a species has been removed United States every year, and non- time of listing that contain essential from threatened or endangered status. strategic stocks every 3 years. We do not physical and biological features for As we get closer to that date, we will expect other countries to discontinue humpback whales and unoccupied areas know more about our plans for their monitoring efforts of humpback that may be essential for their conducting that review. whale DPSs that are not listed under the conservation (16 U.S.C. 1532(5)). At this Comment 83: The State of ESA. For example, the IWC will time, we cannot predict whether Massachusetts recommended that continue to assess the status of designating critical habitat in Guam and NMFS fund population surveys to humpback whale stocks in order to CNMI or anywhere else will be update abundance and trend conserve and manage them. Finally, it is ‘‘prudent,’’ e.g., whether it will provide information. important to note that the Monitoring a conservation benefit to the species (50 Response: Population surveys are Plan we are issuing today per section CFR 424.12(a)(1)(ii)). If we identify areas important, and we intend to work with 4(g)(1) of the ESA (16 U.S.C. 1533(g)(1)) that meet the definition of critical collaborators from the States and other establishes a framework for continued habitat, we will publish a proposed rule Federal agencies to take advantage of monitoring and assessment of threats for and solicit public comments on the ongoing surveys and stranding the next 10 years (twice the minimum proposal before finalizing any critical databases to monitor abundance, trends, 5-year monitoring window required by habitat designation. and health of humpback whale DPSs the ESA). We do not expect any existing Comments on Monitoring Humpback that are not being listed under the ESA. funding to be reduced or removed with Whale DPSs However, we cannot predict our budget removal of ESA protections. or competing priorities from year to Comment 86: One commenter noted Comment 82: One commenter year. Further, we cannot commit or that some of the proposed DPSs are provided actions that should be require any Federal agency to obligate or simply too large to effectively or included in the Monitoring Plan: pay funds in contravention of the Anti- routinely study and manage, including Continuation of SPLASH, at least in Deficiency Act, 31 U.S.C. 1341, or any in the event of post-delisting part; Entanglement Response Program; other law or regulation. monitoring. abundance estimates by aerial surveys; Response: Size of a DPS and ability to humpback whale strike/contact Comment 84: The State of Alaska noted that various groups have manage it did not factor into our database; serious injury determinations; identification of DPSs (please see sanctuary research efforts; outreach expressed concerns about the potential for increased ship strikes by cruise ships response to Comment 3 for more details programs; ocean etiquette; guidelines for on DPS Policy criteria). DPSs must meet boater and ocean users; sanctuary ocean and whale-watching vessels as the humpback whale population increases the criteria of the DPS Policy, and we do count; sanctuary interagency law our best to study and manage DPSs once enforcement task force; ship strike in Southeast Alaska, but pointed out that such ‘‘takes’’ for DPSs that are not they are identified and listed under the workshop; humpback whale protections ESA. We will use the best scientific and working group. Another commenter listed will still be prohibited under the MMPA (but no longer the ESA). The commercial data available to monitor (MMC) suggested that we reexamine DPSs that are not listed under the ESA. population structure and DPSs with State of Alaska stated that if the more genetic sampling and other proposed rule is finalized, the post- Comments on the Draft Monitoring Plan studies, that we reconvene the BRT after delisting monitoring effort will present Comment 87: The Alaska Department the final determination to seek advice opportunities for the State to comment of Fish and Game (ADFG) supported our on humpback whale research and on such concerns and the need to efforts and offered editorial suggestions monitoring, that we share advice with develop feasible mitigation measures, an for clarification and consistency in the states and countries, and that we effort to which the State would like to Monitoring Plan. announce the reconvening of a BRT contribute. Response: We acknowledge ADFG’s after 5 years. Response: We worked closely with support, and we appreciate the editorial Response: Today we are issuing a the State of Alaska and other entities to suggestions, which we have Monitoring Plan for the nine humpback develop a Monitoring Plan, sent it out incorporated into the final Monitoring whale DPSs that are not being listed for public comment and peer review, Plan that we are issuing today. under the ESA. The Monitoring Plan and are issuing it today with publication Comment 88: The Massachusetts Coordinator will work with of this final rule. We also appreciate the Division of Marine Fisheries (DMF) collaborators to identify specific surveys State of Alaska’s willingness to fully supports the development of the and monitoring efforts that we can use contribute to developing feasible Monitoring Plan and is interested in to continue monitoring these humpback mitigation measures. contributing to a successful Monitoring whales. We believe most, if not all, of Comment 85: One commenter noted Plan to ensure that NMFS and its the actions identified by the commenter that funding for population monitoring collaborators can successfully detect would provide valuable information, would be reduced and eventually changes in the status of the stock and and we will pursue them within fiscal removed if ESA protections are removed ensure the non-listed DPSs are and other constraints. As far as the from humpback whales. This appropriately managed. recommendation that we reconvene the commenter asserted that it is unlikely Response: We acknowledge MA BRT to seek advice on research and that a reduction in sustainability of any DMF’s support and appreciate its monitoring, we already consulted with humpback whale DPS will be willingness to contribute. many BRT members as we developed acknowledged until it is too late. Comment 89: The MA DMF strongly the Monitoring Plan. We plan to Adding the DPS back to the Endangered urges NMFS and collaborators to collaborate with States and countries in and Threatened Species list and coordinate efforts to collect photo ID

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mark-recapture data during the humpback whale protection measures general public on monitoring and monitoring period, which requires taken by Stellwagen Bank and Greater resource protection efforts within U.S. prioritization of sustained and increased Farallones National Marine Sanctuaries, west coast National Marine Sanctuaries. funding of vessel-based surveys. The it does not mention efforts made by the Response: We acknowledge the West DMF notes that the Monitoring Plan Cordell Bank and Channel Islands Coast Region of the National Marine cannot rely predominately on threat sanctuaries. This commenter provided a Sanctuary Program’s comments and monitoring or serious injuries and list of humpback whale protection, appreciate their willingness to continue mortalities without considering those management, and research measures collaborating with us. threats and cases in the context of implemented by west coast National Comment 94: The MMC stated that population monitoring. Another Marine Sanctuaries and links to two the objectives and methods identified in commenter noted that NMFS provides working group reports: (1) Reducing the our Monitoring Plan for monitoring caveats with regard to achieving its aims Threat of Ship Strikes on Large humpback whale growth rates, and the sufficiency of funding, and this Cetaceans in the Santa Barbara Channel distribution, and threats are appropriate. is cause for concern regarding the ability Region and Channel Islands National Response: We acknowledge the of the agency to monitor populations Marine Sanctuary: Recommendations MMC’s support. and trends and/or make timely and Case Studies and (2) Vessel Strikes Comment 95: The MMC recommends interventions. This commenter adds that and Acoustic Impacts: Report of a Joint that the Monitoring Plan be expanded to lack of guaranteed funding renders Working Group of the Gulf of the include (1) an objective to determine almost meaningless the agency’s Farallones and Cordell Bank National whether additional DPSs merit commitment to convene a ‘‘team of Marine Sanctuaries Advisory Councils. consideration as endangered or experts’’ to advise it on whether Response: We appreciate the threatened under the ESA, and (2) a monitoring should be extended or information and will collaborate with description of the methods, including additional studies initiated. The these sanctuaries to access the available further collections of tissue samples and commenter states that the need to data. We reviewed the protective efforts genetic analyses, that will be used to convene this team is predicated on on Cordell Bank and Channel Islands assess population structure further obtaining data indicating that calf sanctuaries provided by the other within the ten DPSs. production is declining, juvenile and/or commenter, and we intend to continue Response: We received comments on adult abundance and growth rates are collaborating with National Marine the proposed rule to revise the listing declining, distributional changes cause Sanctuaries to reduce threats to listed status of the humpback whale from the concerns or existing or emerging threats and non-listed humpback whale DPSs MMC and others about dividing some of ‘‘seem to be negatively affecting that breed or feed within or migrate the DPSs we identified into smaller production, abundance, population through the boundaries of these units because they may be genetically growth rate or distribution,’’ and that sanctuaries. We appreciate the distinct. We believe the DPS structure one cannot find what one is not able to education and outreach efforts made by we proposed and are finalizing is based seek. these sanctuaries. on the best available scientific and Response: While we cannot predict Comment 92: One commenter commercial information. Please see our future funding levels, to the extent recommended that we add to the list of responses to Comments 3, 4, and 5 for feasible, we intend to budget for post- ongoing conservation efforts, under more details. If reliable data become delisting monitoring efforts through the section I.B., of the draft Monitoring Plan available that would lead us to identify annual appropriations process. the regulations that apply to all U.S. smaller DPSs within any of the However, we are constrained by the west coast National Marine Sanctuaries. identified DPSs, we will evaluate the provisions of the Anti-Deficiency Act Specifically, under 15 CFR 922, west data at that time. Note that only nine (See 31 U.S.C. 1341 (a)(1)). Further, coast National Marine Sanctuaries DPS are included in the Monitoring guaranteeing funding for the measures prohibit ‘‘Disturbing, taking or Plan (rather than the ten DPS that were recommended in a plan is not a possessing any marine mammal, sea included in the draft Plan) because of precondition to making a listing turtle or bird within or above the changes to the listing status of some determination such as we make today. sanctuary; except as permitted by DPSs in this final rule. Nevertheless, we understand the high regulations under the Marine Mammal Comment 96: One commenter and one value of vessel-based surveys for Protection Act, the Endangered Species peer reviewer noted that existing obtaining photo ID mark-recapture data, Act, and the Migratory Bird Act.’’ baseline data for many of the proposed and we will endeavor to fund vessel- Response: We have moved the list of DPSs are outdated, not available, or based surveys to the extent possible ongoing conservation efforts from have significantly wide confidence consistent with available budgetary section I.B. to Appendix C of the intervals. They asserted that resources. Monitoring Plan, and we have added accomplishing the objectives of the draft Comment 90: The MA DMF urges these regulations as background to the Monitoring Plan depends on: (1) Having NMFS to work with its international same list. confidence in the information on partners to monitor humpback whales Comment 93: The West Coast Region current abundance and trends in in areas where they may redistribute of the National Marine Sanctuary population and on population dynamics because of ocean warming (e.g., Gulf of Program noted that many ongoing (e.g., growth rates, calf production, age Maine). monitoring programs conducted by structure); (2) having accurately Response: We will continue our sanctuaries are aligned with the identified the spatial and temporal efforts to work with our international prescribed monitoring methods in the distribution of the DPSs, including partners to monitor humpback whales draft Monitoring Plan. They strongly differential use by various age classes; in all areas where they occur. support the 10-year monitoring period and (3) proper identification of and Comment 91: One commenter and will continue to collaborate and ability to accurately monitor trends in provided a list of monitoring efforts in enhance communication with the threats. National Marine Sanctuaries off Humpback Whale Monitoring Plan Response: Under the ESA, we are California. Another commenter noted Coordinator and regional staff of NMFS, required to base our decisions on the that while the proposed rule mentions the research community, and the best available scientific and commercial

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information. Where quantitative data are scientific and commercial information. the DPS reaching carrying capacity, not available, it is appropriate to use We have added a qualifier to the saying that as ‘‘DPSs continue to qualitative data. Please see our response distribution trigger to clarify that a large increase in abundance, they may reach to Comment 13 for more discussion of contraction in range would indicate a and/or possibly exceed carrying the ESA’s requirement to base our potential problem. capacity in certain locations and decisions on the best available scientific Comment 99: One commenter noted nutritional stress could affect and commercial information. that there is a great deal of mixing of population dynamics.’’ The commenter Comment 97: One commenter stated breeding stocks in feeding areas that asserts that we are apparently excusing that it will be difficult to determine will make threat assessment for ourselves from the need to identify whether changes in ocean climate, individual proposed DPSs difficult if domestic or international management overharvest of primary prey resources, not impossible, adding that a actions that may be taken to allow an or other factors are adversely affecting monitoring plan that commits to improved recovery trajectory if slowed populations until a significant decline tracking the impact of threats is of no growth is a consequence of habitat has already resulted. As support for this use if it cannot reliably determine degradation rather than a species or DPS statement, the commenter cited Taylor which stock is being adversely affected attaining full recovery. et al. (2007), who estimated that, given in an area of mixing. Response: We will rely on the best the frequency and precision of Response: Again, we must rely on the available scientific and commercial estimates, a precipitous decline of 50 best available scientific and commercial information to determine whether DPSs percent in 15 years would not be information. As we noted in our are reaching carrying capacity. For the detected for over 70 percent of baleen response to Comment 11, where Southern Hemisphere DPSs, we can rely whales, including many humpback humpback whales from different DPSs on IWC assessments (IWC 2015) to populations. mix on feeding grounds, we recognize determine whether different DPSs are Response: The commenter cited the need for an approach that will allow approaching carrying capacity. IWC Taylor et al. (2007), which discusses the us to determine which DPSs have been Breeding Stocks correspond, for the difficulty of monitoring trends in affected by directed or incidental take or most part, to the DPSs we have marine mammal stocks when declines may be affected by Federal actions identified, with the exception that the are caused by factors that do not involve subject to consultation under section 7. boundary between the East Australia direct human-caused mortalities. The We will likely use a proportional DPS and the Oceania DPS differs from most common methods to increase our approach to indicate which DPSs are the boundary between IWC Breeding ability to detect precipitous declines are affected by any takes based upon the Stocks E and F. We expect to be able to to increase survey frequency and/or best available science of what DPSs are review estimates of population sizes change decision criteria (Taylor et al. present, depending on location and relative to carrying capacity for the 2007). For example, Taylor et al. (2007) timing where take occurred. We have North Pacific DPSs this year based on suggests that if we wanted to detect a not finalized this approach, but it will modeling work that was submitted to precipitous decline 80 percent of the be fluid, based upon the best available the IWC Scientific Committee in June time for bowhead whales, we could do science as it changes with increased 2016. More work on population annual surveys. To save expense, understanding. Of course, we will structure in the North Atlantic is needed surveys could be less frequent, but the continue to work with partners to before we can estimate population size decision criterion for significance would mitigate threats to all humpback whales, relative to carrying capacity there. have to be changed to a = 0.1 for 4-year regardless of their ESA listing status, Comment 102: One commenter stated intervals or a = 0.2 for 6-year intervals. because they remain protected under that we incorrectly asserted that the In the latter case, underprotection and the MMPA. We will also work with our Stellwagen Bank National Marine overprotection errors are equal at about partners to determine the most effective Sanctuary (SBNMS) has its own 20 percent. ways to track the impacts of these approach guidelines ‘‘that provide some As we stated in our responses to threats to humpback whales. protection [sic] individuals from the Comments 83 and 89, we will endeavor Comment 100: One commenter noted West Indies’’ DPS. This commenter to fund vessel-based surveys to the that we stated that we will monitor noted that currently there are no extent possible consistent with available abundance, distribution, and protection SBNMS-specific approach guidelines budgetary resources, and we must rely of key prey species even as we admit beyond those NMFS suggests for vessels on the best available information in that ‘‘[d]ata are lacking for most operating in the Greater Atlantic Region. making decisions under the ESA. locations for humpback whale prey Therefore, the commenter states, in However, we are not relying only on species that are not commercially these areas where harassment abundance information. As we stated in harvested.’’ necessitates control of vessel and the draft Monitoring Plan, threats Response: Again, we acknowledge the aircraft approaches to whales based on monitoring will be important to indicate comment, and we must rely on the best their listing under the ESA, these that a new threat has emerged, the available scientific and commercial protections will be largely lost. magnitude of an existing threat has information. We have added a list of Response: It is true that SBNMS does increased, and/or that the cumulative funded Federal efforts to the Monitoring not have its own approach guidelines. impact from threats is likely greater than Plan, but we cannot do the same for The only species in this area with ESA previously understood. non-federal efforts because there is no regulatory restrictions on aircraft, vessel Comment 98: One commenter guarantee that these will be funded. In speed, and approach is the North wondered how we think we can detect a particular year, we may have available Atlantic right whale. Because the changes in the spatial or temporal annual discretionary funds and some MMPA also offers general harassment distribution of humpback whales in the ESA section 6 funds that we hope to be prohibitions to all marine mammals, no Southern Hemisphere when the whales’ able to use to support some of these protections will be lost for humpback use of specific feeding areas is largely efforts. whales in this respect. Humpback conjectural. Comment 101: One commenter stated whales will also continue to receive Response: We will need to base our that we appear to be poised to attribute ancillary benefits from those regulations monitoring on the best available any health effects or slowed growth to in place to protect right whales (please

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see our response to Comment 39). In the both the U.S. east and west coasts to static. This peer reviewer added that, Greater Atlantic Region, voluntary both promote prevention and facilitate even if it is determined for a particular guidelines are in place to encourage reporting of incidents. The IWC is region, carrying capacity can shift along aircraft and vessel behaviors that will currently examining the mechanisms for with changing environmental not violate the harassment prohibitions reporting ship strikes globally and is conditions, especially with respect to of both the MMPA and ESA. These working with the International Maritime dynamic ecosystem changes due to voluntary guidelines will remain in Organization on outreach to industry for climate change. place for humpback whales under the areas of overlap of large whales and Response: Please see our response to MMPA, regardless of their status under shipping lanes. In addition, the IWC is Comment 101. We must continue to the ESA. beginning the process of tracking and base our decisions on the best available Comment 103: One commenter stated standardizing data on large whale scientific and commercial information. that because there is an existing TRP entanglements world-wide and making We believe the ongoing assessment that currently applies to humpback the data available for prevention and work can help us determine when DPSs whales in the North Atlantic, the TRP mitigation. are approaching carrying capacity. should continue to apply to the West Both NMFS and the IWC have Comment 106: Two peer reviewers Indies DPS and any other humpback supported the training and equipping of stated that a 10-year monitoring period whale populations off the U.S. east coast tiered skilled entanglement response was too short for detecting changes in even if ESA protections are removed. teams for large whales in a domestic and population trends, given the slow life The commenter added that, similar to international capacity. The IWC is history, and they would advise a longer the ALWTRP, NMFS should make clear actively training large whale monitoring period if possible. that the provisions of the Pacific entanglement response personnel Regardless, they noted, the ability to Offshore Cetacean Take Reduction Plan around the world in high-risk or high detect population trends and other (POCTRP) will continue to apply to reported entanglement areas. Again, this triggers will rely on regular, thorough, humpback whales, even if some DPSs work to mitigate injury and mortality of consistent, and coordinated survey are delisted. whales in distress falls under MMPA effort throughout the monitoring period. Response: Provisions of the ALWTRP Title IV, at the national level. When a Response: Section 4(g) of the ESA and the POCTRP will continue even whale with an entanglement is reported requires that we monitor species that though some DPSs are no longer listed to NMFS or the network, an assessment have recovered under the ESA for a under the ESA. These take reduction of whether the entanglement is life- period of at least 5 years. We decided plans are implemented under the threatening is undertaken. If it is a life- to adopt a period for this rule that is authority of the MMPA. threatening entanglement, all efforts are twice the minimum time period. If we Comment 104: One commenter stated made to respond if it is safe and determine that we need more than 10 that it is unclear how NMFS considers conditions allow. From experience, we years to detect changes in population the IWC’s ship strike database, stranding know that many whales shed gear on trends, we can extend the monitoring networks, and disentanglement training their own in successful self-releases, so period. We agree that the ability to as sufficient monitoring measures for not all entanglements require human detect population trends and other humpback whales. The commenter intervention. triggers will rely on regular, thorough, added that there are no mandates for Given the high abundance estimates consistent, and coordinated survey any individual or country to report ship for those DPSs not being listed under effort throughout the monitoring period, strikes to the database, and our own the ESA, we do not believe that ship and we will do the best we can to data indicate that ship strikes are strikes, entanglements, or other human achieve a high quality monitoring effort. underreported. The commenter stated caused factors are having a negative Comment 107: One peer reviewer that stranding response varies by region population level impact on these DPSs noted that the southern hemisphere and adequate carcass examinations are at this time or within the foreseeable DPSs appear to have solid current IWC rare. This commenter asserted that, future. monitoring but that the Hawaii DPS while disentanglement training is Comment 105: One commenter and description of data being gathered for laudable, it is not legally mandated and two peer reviewers took issue with the mark-recapture for Southeast Alaska in only a small percentage of whales notion of accurately assessing carrying the draft Monitoring Plan was incorrect. benefit from this activity. capacity, let alone determining that a This reviewer stated that the regional Response: Regardless of the ESA species or DPS has reached it. The Southeast Alaska and Prince William status of humpback whales, we have a commenter suggested we should Sound datasets are collaborations with continuing directive under Title IV of reference the achievement of optimum Glacier Bay National Park and the the MMPA to collect health indices for sustainable populations rather than NOAA Fisheries Auke Bay Laboratory, marine mammal populations. The carrying capacity, which fluctuates with and the North Gulf Oceanic Society and national stranding network will resource availability. One of the peer Eye of the Whale datasets will be useful. continue to document reports of ship reviewers noted that carrying capacity However, this peer reviewer strike and consistently necropsy for monitoring the DPSs is a useless recommended that a monitoring plan humpback whale carcasses to determine term because most DPS managers have (and agreements) be established to if ship strike is a cause of death. These no realistic idea of the target population access and maintain the usefulness of results are incorporated into serious abundance. Instead, we should focus on these long-term datasets collected since injury and mortality estimates in the ways to document or monitor status via 1979. The peer reviewer believes we are Stock Assessment Reports and reproductive rates and environmental overstating the monitoring efforts. Given considered in management decisions on threats. The other peer reviewer the funding situation for humpback behalf of the species. New ship strike expressed concern with the emphasis on whales, this peer reviewer noted that avoidance tools are being used in using carrying capacity to identify the only guaranteed systematic survey various parts of the United States, such response triggers because determining for the Hawaii DPS is the Glacier Bay as the reporting application Whale carrying capacity for species like work. Alert, and we are actively working with humpback whales with such slow life Response: If the commenter is the cruise and shipping industries on histories is not easy, straightforward, or referring to surveys with guaranteed

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funding, the commenter is correct. We other marine animals such as pinnipeds • We reviewed, and incorporated as do not intend to overstate the or seabirds.’’ appropriate, scientific data from monitoring efforts. With the exception Response: While there is no evidence references that were not included in the of Glacier Bay National Park and our that climate-change related effects status review report and proposed rule. work in Prince William Sound (if we currently contribute, or within the We include the following references, receive funding for continued work), foreseeable future are likely to which together with previously cited there are no systematic surveys in place contribute, significantly to the references, represent the best available for the Hawaii DPS. North Gulf Oceanic extinction risk of most DPSs (except the scientific and commercial data. Several Society data are incorporated into our Arabian Sea DPS) (see responses to of these references present new data, Exxon Valdez Oil Spill-Prince William Comments 24 and 25), we agree that but, with the exception of Wade et al. Sound database. The Eye of the Whale, monitoring HABs and unusual mortality (2016), the new data do not result in a Alaska Whale Foundation, and similar events is important. Early detection may change in any of our listing efforts may be useful for identifying provide us with a better opportunity to determinations. We are making a change some of the triggers but are not suitable diagnose potential causes of mortality. to the Western North Pacific DPS listing for a robust mark-recapture model. We However, stranding networks are determination because we have have revised the Monitoring Plan to already in place and, either through reconsidered our original determination clarify that we do not expect a full suite these networks or as a result of direct in light of the fact that the abundance of SPLASH-like humpback whale contacts to NMFS via the hotlines and estimate for this DPS is relatively low, surveys to be funded in the near future. other lines of communication, we are numerous threats of at least moderate Instead, the Monitoring Plan provides made aware of dead animals, floating impact still exist, and the DPS includes animals, and animals in distress. We us with guidance to assess the data that a population with unknown breeding track these strandings, and the MMPA exist on a regular basis (and fund grounds and unknown growth rate. We has provisions for declaring UMEs and additional efforts where possible), and are also making changes to the Mexico assessing the potential causes. Stock then try to extrapolate from that. We and Central America DPS listing assessment reports will capture this plan to collaborate with other Federal determinations. The new, lower information as well. We do not believe agencies, states, the IWC, and academia abundance estimates (Wade et al. 2016) this particular trigger is needed. While to obtain the information we need in for these DPSs increase our level of we will likely indirectly monitor order to monitor the status of these concern about their extinction risk. For changes in environmental conditions humpback whale DPSs. the Central America DPS we would through the stranding networks, it is Comment 108: One commenter noted have listed the DPS as endangered even highly unlikely that we will be that the warmer waters throughout the in the absence of the new abundance launching surveys, as suggested by the Pacific have been documented to affect estimate, for the reasons we explain commenter. There have been HABs on marine animals from Alaska to Baja and further in the Central America DPS both U.S. coasts, and they will continue. out to the Pacific Islands, resulting in section. In all other cases where new While individual humpback whales widespread HABs, some of which have information was received (or obtained may be affected, it is unlikely that an been linked to the die-off of marine by us), the information either was not HAB event would present sufficient mammals, including humpback whales. sufficient to convince us to change our cause to reevaluate the population’s Because of the ocean warming trend, determination or provided support for listing status. An HAB would have to be this commenter cautioned that this our proposed determinations, and thus very large in scale, or repetitive, to have trend may potentially have a significant we do not rely on the information for meaningful impact at the population effect on humpback whale populations, our final determinations: Alava et al. level. as well as other marine mammals. This (2011); Alter et al. (2010); Alter et al. commenter recommended that the Summary of Changes From the (2015); Alzueta et al. (2001); Anderson Monitoring Plan add a bullet related to Proposed Rule et al. (2014); Baker et al. (2013); rapid changes in environmental • We are relying on the YONAH Barendse et al. (2011); Barnosky et al. conditions under the ‘‘Response survey data instead of the MONAH (2012); Barth et al. (2007); Barth et al. triggers.’’ The existing bullets are linked survey data for the abundance estimate (2007); Beaugrand (2014); Bowman et al. to the condition of the whales (numbers, for the West Indies DPS. (2013); Bednarsek et al. (2014) Boyce et distribution, calves, and health) but do • We have updated the abundance al. (2010); Braithwaite et al. (2015); not take into account changes in the estimates for the Western North Pacific, Caballero et al. (2000, 2001, 2009); environment. For example, a large HAB Hawaii, Mexico, Central America, and Carmona et al. (2011); Carstensen et al. detected in southeastern Alaska might Gabon/Southwest Africa DPSs. (2015); Carvalho et al. (2014); Chen et trigger NMFS to initiate additional • We are listing the Western North al. (2011); Coello-Camba et al. (2014); surveys to detect any potentially dead Pacific and Central America DPSs as Childerhouse and Smith (undated); whales. Early detection of dead whales endangered instead of threatened based Collins et al. (2010); Comeau et al. may enable researchers to respond more on a reconsideration of the information (2012); Constantine et al. (2012); Corrie rapidly to necropsy and thereby we presented in the proposed rule. et al. (2015); Dalla Rosa et al. (2012); diagnose potential causes for mortality. • We are listing the Mexico DPS as Darling and Mori (1992); Dunlop et al. The commenter suggested the following threatened instead of not listing it, (2010); Elwen et al. (2014); Ersts et al. for such an environmental trigger: based on a reconsideration of the (2011); Escobar (2009); Evans et al. ‘‘Evidence of rapid environmental information we presented in the (2013); Felix et al. (2005); Fire et al. changes in oceanographic conditions in proposed rule and the new abundance (2010); Feng et al. (2009); Florez- calving or foraging grounds that estimate. Gonzalez et al. (2007); Flynn et al. potentially could pose an immediate • We have updated the abundance (2015); Fossette et al. (2014); Frisch et threat to the health of humpback whales estimate for the Oceania DPS with an al. (2015); Fu et al. (2012); Garcia-Godes or their prey. Examples of rapid changes estimate that is based on an additional et al. (2013); Garrigue et al. (undated); in environmental condition include, but year of data, and we have added a Garrigue et al. (2000); Garrigue et al. are not limited to, HABs or die-offs of population growth-rate estimate. (2006); Garrigue et al. (2010); Garrigue

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et al. (2011); Gattuso and Hansson the DPSs identified in the proposed rule because of concerns that the same data (2011); Gaylor et al. (2015); Goldbogen are discrete and significant. Therefore, may have been used twice and et al. (2013); Grebmeier (2012); we incorporate herein all information potentially lead to an over-estimate of Hattenrath-Lehmann et al. (2015); Haigh on the identification of DPSs provided the precision of the trend estimate, they et al. (2015); Hare et al. (2007); Hauser in the status review report and proposed re-calculated the trend analysis using et al. (2010); Hedley et al. (2011); Hester rule (80 FR 22304; April 21, 2015). only one set of abundance estimates for et al. (2008); Hollowed et al. (2012); In summary, we apply our joint DPS each time period. The revised trend for Honisch et al. (2012); Ilyina et al. policy (61 FR 4722; February 7, 1996) to this time period was still 3.1 percent (SE (2010); IWC (2015); Ivashchenko et al. identify 14 discrete and significant = 1.2 percent). (2013); IWC (2012); Jensen et al. (2015); DPSs: West Indies, Cape Verde Islands/ In contrast, estimates from feeding Kajawara et al. (2004); Kato Northwest Africa, Western North areas in the North Atlantic indicate (unpublished abstract); Kawaguchi et al. Pacific, Hawaii, Mexico, Central strongly increasing trends in Iceland (2013); Kent et al. (2012); Kershaw America, Brazil, Gabon/Southwest (1979–1988 and 1987–2007), Greenland (2015); Kirkley et al. (2014); Krieger and Africa, Southeast Africa/Madagascar, (1984–2007), and the Gulf of Maine Wing (1984, 1986); Kroeker et al. (2010); West Australia, East Australia, Oceania, (1979–1991) (Bettridge et al. 2015). Kroeker et al. (2013); Laist et al. (2014); Southeastern Pacific, and Arabian Sea. There is some indication that the Lefebvre et al. (2016); Leandro et al. We next present a summary of the increase rate in the Gulf of Maine has (2010); Le Quere et al. (2015); Lischka extinction risk analysis and our listing slowed in more recent years (6.5 percent et al. (2010); Lewitus et al. (2012); determinations for each DPS. Additional from 1979 to 1991 (Barlow and Clapham Maclean and Wilson (2011); Martinez- detail may be found in the proposed 1997), 0–4 percent from 1992–2000 Levasseur et al. (2011); Martinez- rule. (Clapham et al. 2003a)). It is not clear Levasseur et al. (2013a); Martinez- West Indies DPS why the trends appear so different Levasseur et al. (2013b); McHuron et al. between the feeding and breeding (2013); Moore et al. (2015); Moura et al. The comments that we received on grounds. A possible explanation would (2013); Moy et al. (2009); NOAA the West Indies DPS and additional be that the Silver Bank breeding ground National Climatic Data Center (2015); information that became available since has reached carrying capacity, and that NMFS (2015); Nemoto (1957, 1959); the publication of the proposed rule did an increasing number and percentage of Noad et al. (2005); Okamoto et al. not change our conclusion that this DPS whales are using other parts of the West (2013); Olavarria et al. (2006); Pace et al. does not warrant listing. However, as Indies as breeding areas. (2014); Pachauri et al. (2014); Parmesan previously explained in a response to Comment 31, we determined that we Section 4(a)(1) Factors for the West (2006); Parmesan and Yohe (2003); Indies DPS Paxton et al. (2011); Payne et al. (1986); should not rely on the MONAH Ramp et al. (2015); Risch et al. (2012); abundance estimate (12,312 individuals) The best documented unusual Robbins et al. (2011); Rolland et al. because the underlying data are not mortality event (UME) for humpback (2012); Rosenbaum et al. (2014); final, and they are not verifiable. We whales attributable to disease occurred Schonberg et al. (2014); Sible et al. incorporate herein all other information in 1987–1988 in the North Atlantic, (2002); Simmonds and Eliott (2009); on the West Indies DPS provided in the when at least 14 mackerel-feeding Simmonds and Isaac (2007); Stevick et status review report and proposed rule humpback whales died of saxitoxin al. (2015); Stevick et al. (2016); (80 FR 22304; April 21, 2015). The poisoning (a neurotoxin produced by Strinddberg et al. (2011); Tanabe et al. following represents a brief summary of some dinoflagellate and cyanobacteria (1994); Tatters et al. (2012); Thomas et that information. species) in Cape Cod, Massachusetts al. (2004); Trainer et al. (2012); Tyack et The West Indies DPS consists of the (Geraci et al. 1989). The whales al. (2011); Van Bressem et al. (2009); humpback whales whose breeding range subsequently stranded or were van derHoop et al. (2014); Van includes the Atlantic margin of the recovered in the vicinity of Cape Cod Waerebeek et al. (2013); Vikingsson et Antilles from Cuba to northern Bay and Nantucket Sound, and it is al. (2015); Wade et al. (2016); Warren et Venezuela, and whose feeding range highly likely that other unrecorded al. (2013); Wiley et al. (2011); Witteveen primarily includes the Gulf of Maine, mortalities occurred during this event. et al. (2006); Witteveen et al. (2008); eastern Canada, and western Greenland. Such events have been linked to Wright (2008); Wright et al. (2015); While many West Indies whales also increased coastal runoff. During the first Yasunaga and Fujise (2009a); and use feeding grounds in the central 6 months of 1990, seven dead juvenile Yasunaga and Fujise (2009b). (Iceland) and eastern (Norway) North (7.6 to 9.1 m long) humpback whales Atlantic, many whales from these stranded between North Carolina and Identification of DPSs feeding areas appear to winter in New Jersey. The significance of these As we discussed earlier in our another unknown location. strandings is unknown. responses to comments on particular Additional UMEs occurred in the Gulf DPSs, the comments that we received on Abundance and Trends for the West of Maine in 2003 (12–15 dead the proposed rule did not change our Indies DPS humpback whales on Georges Bank), conclusions regarding the identification The most reliable abundance 2005 (7 in New England), and 2006– of DPSs. We reviewed relevant and estimates for this DPS are from the 2007 (minimum of 21 whales), with no recently available scientific data that 1992–1993 YONAH survey on the cause yet determined but HABs were not included in the status review breeding grounds in the Caribbean: potentially implicated (Gulland 2006; report and proposed rule: Barendse et 10,400 (95 percent CI, 8,000–13,600) Waring et al. 2009). In the Gulf of Maine al. 2011; Carvalho et al. 2014; Elwen et individuals according to genetic ID data; in 2003, a few sampled individuals al. 2014; Ersts et al. 2011; Fossette et al. and 10,752 (CV = 6.8 percent) among 16 humpback whale carcasses 2014; Kershaw 2015; Rosenbaum et al. individuals according to photo ID data were found with saxitoxin and domoic 2014; Stevick et al. 2015; Stevick et al. (Stevick et al. 2003). Stevick et al. acid (produced by certain species of 2016; and Van Waerebeek et al. 2013. (2003) estimated the average annual diatoms, a different type of algae Based on the best available scientific growth rate at 3.1 percent (SE = 1.2 (Gulland 2006)). The BRT discussed the and commercial data, we reaffirm that percent) for the period 1979–1993, but possible levels of unobserved mortality

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that may be resulting from HABs and HABs, vessel collisions, and fishing Conservation Efforts for the West Indies determined that, as the West Indies gear entanglements are likely to DPS population had been affected by HABs moderately reduce the population size While there are many ongoing in the past, it is likely experiencing a and/or the growth rate of the West conservation efforts that apply to the higher level of HAB-related mortality Indies DPS. All other threats, with the West Indies DPS, we do not need to than is detected. exception of climate change (unknown The largest potential threats to the further evaluate them in the context of severity), are considered likely to have this decision because they would serve West Indies DPS are entanglement in no or minor impact on population size fishing gear and ship strikes (vessel only to further reduce the likely impact or the growth rate of this DPS. collisions); these occur primarily in the of threats. feeding grounds, with some Extinction Risk Analysis for the West Listing Determination for the West documented in the mid-Atlantic U.S. Indies DPS Indies DPS migratory grounds. There are no reliable For the above reasons, we finalize our estimates of entanglement or ship-strike The BRT distributed 82 percent of its proposed determination that the West mortalities for most of the North likelihood points for the West Indies Indies DPS of the humpback whale does Atlantic. During the period 2003–2007, DPS to the ‘‘not at risk of extinction’’ not warrant listing as threatened or the minimum annual rate of human- category and 17 percent to the endangered under the ESA. caused mortality and serious injury ‘‘moderate risk of extinction’’ category. (from both entanglements and ship Given the large population size (10,400– Cape Verde Islands/Northwest Africa collisions) for the Gulf of Maine feeding 10,752, more than five times the DPS population averaged 4.4 animals per population size that the BRT considered The comments that we received on year (Waring et al. 2009). Off sufficient to demonstrate that a the Cape Verde Islands/Northwest Newfoundland, an average of 50 population was not at risk due to low Africa DPS and additional information humpback whale entanglements (range abundance alone), moderately that became available since the 26–66) was reported annually between increasing trend, and the high publication of the proposed rule did not 1979 and 1988 (Lien et al. 1988); percentage of likelihood points another 84 were reported entangled in change our conclusions regarding listing allocated to the ‘‘not at risk of either Newfoundland or Labrador from this DPS as endangered. Therefore, we 2000–2006 (Waring et al. 2009). Not all extinction’’ category, we conclude that, incorporate herein all information on entanglements result in mortality despite the moderate threats of HABs, the Cape Verde Islands/Northwest (Waring et al. 2009). However, all of vessel collisions, and fishing gear Africa DPS provided in the status these figures are likely to be entanglements and unknown severity of review report and proposed rule (80 FR underestimates, as not all entanglements climate change as a threat, the West 22304; April 21, 2015). The following are observed. A study of entanglement- Indies DPS is not in danger of extinction represents a brief summary of that related scarring on the caudal peduncles throughout its range or likely to become information. of 134 individual humpback whales in so within the foreseeable future This DPS consists of the humpback the Gulf of Maine suggested that throughout its range. whales whose breeding range includes waters surrounding the Cape Verde between 48 percent and 65 percent had Next, per the Final SPOIR Policy, experienced entanglements (Robbins Islands as well as an undetermined because we have determined that the breeding area in the eastern tropical and Mattila 2001). DPS is neither endangered nor Ship strike injuries were identified for Atlantic which may be more threatened based on a rangewide 8 percent (10 of 123) of dead stranded geographically diffuse than the West humpback whales between 1975–1996 evaluation, we need to determine Indies breeding ground. Its feeding along the U.S. East Coast, 25 percent (9 whether the West Indies DPS is in range includes primarily Iceland and of 36) of which were along mid-Atlantic danger of extinction or likely to become Norway. The population of whales and southeast states (south of the Gulf so within the foreseeable future in a breeding in the Cape Verde Islands, plus of Maine) between Delaware Bay and significant portion of its range. The BRT this unknown area, likely represent the Okracoke Island North Carolina (Wiley noted that there are some regional remnants of a historically larger and Asmutis 1995). Ship strikes made differences in threats for the West Indies population breeding around the Cape up 4 percent of observed humpback DPS, but it was unable to identify any Verde Islands and northwestern Africa whale mortalities between 2001–2005 portions of the DPS that both faced (Reeves et al. 2002). In our proposed (Nelson et al. 2007) and 7 percent particularly high threats and were so rule, we stated that there is no known between 2005–2009 (Henry et al. 2011) significant to the viability of the DPS as overlap in breeding range with North along the U.S. East Coast, and the a whole that their loss would result in Atlantic humpback whales that breed in Canadian Maritimes. Among strandings the remainder of the DPS being at high the West Indies, although overlap along the mid- and southeast U.S. risk of extinction. We agree with the occurs among feeding aggregations in coastline during 1975–1996, 80 percent BRT’s conclusions and conclude that Iceland and Norway from different (8 of 10) of struck whales were there are no portions of the DPS that breeding populations. However, recent information provides some evidence to considered to be less than 3 years old face particularly high threats and are so based on their length (Laist et al. 2001). indicate there may be two different significant to the viability of the DPS This suggests that young whales may be breeding areas in the Caribbean, with that, if lost, the remainder of the DPS disproportionately affected. However, different breeding times, and the whales those waters may be used preferentially would be in danger of extinction or breeding in the southeast Caribbean by young animals (Swingle et al. 1993; likely to become so within the seem to be more prevalent in the Barco et al. 2002). It should be noted foreseeable future. Therefore, we Northeast Atlantic feeding grounds that ship strikes do not always produce conclude that the DPS is not in danger (Stevick et al. 2015). Some humpback external injuries and may therefore be of extinction in a significant portion of whales from the Cape Verde Islands underestimated among strandings that its range and is not likely to become so breeding grounds have been re-sighted are not examined for internal injuries. within the foreseeable future. in the southeast Caribbean (Guadeloupe)

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(Stevick et al. 2016), suggesting the Conservation Efforts for the Cape Verde feeding grounds), and those transiting southeast Caribbean may be part of the Islands/Northwest Africa DPS the Ogasawara area. These whales Cape Verde Islands/Northwest Africa Other than protections provided to migrate to feeding grounds in the DPS’ breeding ground, though this has humpback whales by the IWC and northern Pacific, primarily off the not been confirmed. CITES, we are not aware of any ongoing Russian coast. Abundance and Trends for the Cape conservation efforts for this DPS. The Abundance and Trends for the Western Verde Islands/Northwest Africa DPS IWC has programs that provide North Pacific DPS protection to humpback whales from all The abundance of humpback whales The population abundance and DPSs. The IWC’s Conservation in the Western North Pacific was population trend for the Cape Verde Committee was established to consider estimated to be around 1,000, based on Islands/Northwest Africa DPS are a number of emerging cetacean the photo-identification, capture- unknown. The Cape Verde Islands conservation issues, and its role recapture analyses from the years 2004– photo-identification catalog contains continues to evolve. The Conservation 2006 by the SPLASH program only 88 individuals from a 20-year Committee collaborates closely with the (Calambokidis et al. 2008) from two period (1990–2009) (Wenzel et al. 2010). IWC’s Scientific Committee to primary sampling regions, Okinawa and Of those 88 individuals, 20 (22.7 understand and address a range of Ogasawara. The growth rate for percent) were seen more than once, 15 threats to whales and their habitats humpback whales in the Western North were seen in 2 years, 4 were seen in 3 including whale watching, ship strikes, Pacific is estimated to be 6.9 percent years, and 1 was seen in 4 years. The and marine debris. In addition, the (Calambokidis et al. 2008) between relative high re-sighting rate suggests a humpback whale is currently an 1991–93 and 2004–2006, although this small population size with high fidelity Appendix I species under CITES, which could be biased upwards by the to this breeding area, although the DPS restricts international trade and comparison of earlier estimates based on may also contain other, as yet unknown, provides an additional layer of photo-identification records from breeding areas (Wenzel et al. 2010). protection against resumed whaling. Ogasawara and Okinawa with current Little is known about the total size of Listing Determination for the Cape estimates based on the more extensive the Cape Verde Islands/Northwest Verde Islands/Northwest Africa DPS records collected in Ogasawara, Africa DPS, and its trend is unknown. Okinawa, and the Philippines during While the IWC and CITES the SPLASH program. However, the Section 4(a)(1) Factors for the Cape conservation efforts are likely to benefit overall number of whales identified in Verde Islands/Northwest Africa DPS all humpback whales, they are not the Philippines was small relative to sufficient to change the extinction risk both Okinawa and Ogasawara, so any For the Cape Verde Islands/Northwest of this DPS. For the above reasons, we Africa DPS, the threats of HABs, bias may not be large. Given the finalize our proposal to list the Cape possible bias in the rate of increase and disease, parasites, vessel collisions, Verde Islands/Northwest Africa DPS of fishing gear entanglements and climate the fact that it represents a combination the humpback whale as an endangered of two populations that the BRT had change are unknown. All other threats species under the ESA. to this DPS are considered likely to have proposed as separate DPSs (Okinawa/ Philippines and Second West Pacific), it no or minor impact on the population Western North Pacific DPS is not possible to make a definitive size and/or growth rate. After reviewing the comments we statement about the rate of increase of Extinction Risk Analysis for the Cape received on the Western North Pacific the Western North Pacific DPS. Verde Islands/Northwest Africa DPS DPS and reconsidering the information More recently, in advance of the June in the proposed rule, we have reached 2016 IWC Scientific Committee meeting The BRT distributed 32 percent of its a different conclusion regarding the in Slovenia, Wade et al. (2016) likelihood points for this DPS to the appropriate listing status for this DPS. submitted a paper in which they used ‘‘high risk of extinction’’ category, 43 Specifically, though we proposed to list an integrated spatial multi-strata mark- percent to the ‘‘moderate risk of the DPS as a ‘‘threatened species,’’ we recapture model to simultaneously extinction’’ category, and 25 percent to will finalize the listing as an estimate abundance for all winter and the ‘‘not at risk of extinction’’ category. ‘‘endangered species.’’ Additional summer areas sampled during the Unlike for the other DPSs we have information became available since the SPLASH project in the North Pacific. identified, we have no reason to believe publication of the proposed rule, and We believe the multi-strata estimates are that this DPS’ status has improved since some information had not been cited in likely less subject to bias from capture humpback whales within the range of the status review report (Darling and heterogeneity, which has been shown to this DPS were listed as endangered. Mori 1992; Kato unpublished; Okamoto lead to substantial biases, and they use There is a high likelihood that the 2013; Wade et al. 2016), but this all the data (from both summer and abundance of this DPS is low (much information did not influence our winter), rather than estimating lower than the BRT’s threshold of 500 conclusion. We incorporate herein all abundance from just part of the data. individuals for a population that would information on the Western North Given this, it seems reasonable to be considered at high risk from low Pacific DPS provided in the status conclude that the multi-strata estimates abundance, and potentially below the review report and proposed rule (80 FR calculated here are more accurate than threshold of 100 individuals for a 22303; April 21, 2015). The following the within-season Chapman-Peterson population that would be considered at represents a brief summary of that estimates. From these analyses, the extremely high risk). There is also information. multi-strata estimate for the Western considerable uncertainty regarding the The Western North Pacific DPS North Pacific DPS is 1,059 (CV = 0.08). risks of extinction of this DPS due to a consists of the whales breeding/ This is not significantly different from general lack of data as reflected in the wintering in the area of Okinawa and the earlier Calambokidis et al. (2008) wide spread of BRT points. Therefore, the Philippines, another unidentified estimate of about 1,000. Overall we conclude that this DPS is in danger breeding area (inferred from sightings of recovery seems to be slower than in the of extinction throughout its range. whales in the Aleutian Islands area Central and Eastern North Pacific.

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Humpback whales in the Western North Whales along the coast of Japan and with 14 percent of the points in the Pacific remain rare in some parts of Korea are at risk of entanglement in ‘‘high risk of extinction’’ category, 47 their former range, such as the coastal fisheries gear and related mortality, percent in the ‘‘moderate risk of waters of Korea, and have shown no although overall rates of net and rope extinction’’ category, and 39 percent in signs of a recovery in those locations scarring are similar to other regions of the ‘‘not at risk of extinction’’ category. (Gregr 2000; Gregr et al. 2000). the North Pacific (Brownell et al. 2000). The majority of likelihood points were The abundance of the Western North The reported number of humpback in the ‘‘moderate risk of extinction’’ Pacific DPS is 1,059 individuals, with whale entanglements/deaths has category for both portions of the unknown trend. increased for Japan since 2001 as a Western North Pacific DPS. Given the result of improved reporting, although relatively low population size of the Section 4(a)(1) Factors for the Western the actual number of entanglements may Western North Pacific DPS (1,059, about North Pacific DPS be underrepresented in both Japan and half the population size that the BRT The BRT noted that the Sea of Korea (Baker et al. 2006). The BRT considered sufficient to demonstrate Okhotsk currently has a high level of concluded that the threat of fishing gear that a population was not at risk due to energy exploration and development, entanglement to this DPS was high for low abundance alone), the moderate and these activities are likely to expand the Okinawa/Philippines portion of this reduction of its population size or with little regulation or oversight. The DPS and unknown for the 2nd West growth rate likely from energy BRT determined that the threat posed by Pacific portion of the DPS (Bettridge et development, competition with energy exploration to the Okinawa/ al. 2015, Table 9). The level of fisheries, whaling, and vessel collisions, Philippines portion of the Western confidence in understanding the the serious reduction of its population North Pacific DPS is medium, but noted minimum magnitude of this threat is size or growth rate likely from fishing that there was low certainty regarding medium for the Okinawa/Philippines gear entanglements, the fact that the this because specifics of feeding portion of this DPS and low for the 2nd majority of the BRT’s likelihood points location (on or off the shelf) are West Pacific portion of this DPS, given were in the ‘‘moderate risk of unavailable. If feeding activity occurs on the unknown wintering grounds and extinction’’ category for both portions of the shelf in the Sea of Okhotsk, energy primary migratory corridors. the DPS, and the considerable exploration in this area could impact To summarize, all threats are uncertainty associated with abundance what is likely one of the most depleted considered likely to have no or minor and trend estimates, we concluded in subunits of humpback whales. The impact on population size and/or the our proposed rule that the Western threat posed by energy exploration to growth rate or are unknown, with the North Pacific DPS was likely to become the 2nd West Pacific portion of the following exceptions: Energy endangered throughout its range within Western North Pacific DPS was development, competition with fisheries the foreseeable future. (Bettridge et al. 2015 at 56), whaling, However, the abundance estimate of unknown. and vessel collisions are considered 1,059 for this DPS is still relatively low The BRT discussed the high level of likely to moderately reduce the and below the level that would signify fishing pressure in the region occupied population size or the growth rate of the that the population is not at risk due to by the Okinawa/Philippines portion of Okinawa/Philippines portion of this low abundance alone. This DPS faces a the Western North Pacific DPS (a small DPS; and fishing gear entanglement is significant number of moderate threats humpback whale population). Although likely to seriously reduce the population and one serious threat (fishing gear specific information on prey abundance size or the growth rate of the Okinawa/ entanglement) that are expected to and competition between whales and Philippines portion of this DPS increase. The BRT members expressed a fisheries is not known in this area, (Bettridge et al. 2015, Table 9). The considerable degree of uncertainty with overlap of whales and fisheries has been levels of these threats are higher than in regard to both portions of this DPS in indicated by the bycatch of humpback most other regions of the world and are their allocation of likelihood points whales in set-nets in the area. The BRT expected to increase, rather than decline among different extinction risk determined that competition with (Bettridge et al. 2015 at 94). Also, the categories. Further, we note that this fisheries is a medium threat for this DPS threats of underwater noise and ship DPS includes members of two different (Bettridge et al. 2015 at 56), given the strikes to this portion of the DPS are populations that the BRT considered to high level of fishing and small expected to increase as shipping traffic be two different DPSs, one of which has humpback whale population. increases (Bettridge et al. 2015 at 94). In an unknown breeding area; thus, they The likely range of the Western North general, there is great uncertainty about are likely to have different demographic Pacific DPS includes some of the the threats facing the 2nd West Pacific characteristics. As discussed above world’s largest centers of human portion of this DPS. under the Status Review section, the activities and shipping. Although BRT considered abundance and trend Extinction Risk Analysis for the Western reporting of ship strikes is requested in information carefully in evaluating North Pacific DPS the Annual Progress reports to the IWC, extinction risk, but abundance was not reporting by Japan and Korea is likely to The BRT distributed 36 percent of its the sole criterion for evaluating be poor (Bettridge et al. 2015 at 94). A likelihood points for the Okinawa/ extinction risk. The thresholds reasonable assumption, although not Philippines portion of the DPS in the described by the BRT were only general established, is that shipping traffic will ‘‘high risk of extinction’’ category and guidelines, and we must consider them increase as global commerce increases; 44 percent in the ‘‘moderate risk of in light of the threats the DPS faces. thus, a reasonable assumption is that the extinction’’ category, with only 21 We have reconsidered our original level of the threat will increase. The percent of the points in the ‘‘not at risk listing determination for this DPS in threat of ship strikes was therefore of extinction’’ category. The distribution light of the relatively low abundance considered to be medium for the of likelihood points among the risk estimate, the threats that continue to Okinawa/Philippines portion of the categories indicates uncertainty. There operate on the population, and the Western North Pacific DPS and was also considerable uncertainty considerable uncertainty reflected in the unknown for the 2nd West Pacific DPS regarding the risk of extinction of the distribution of BRT votes. Under these portion. 2nd West Pacific portion of this DPS, circumstances, for this particular DPS,

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the risk to the species is compounded The Hawaii DPS consists of estimates. Studies in another humpback by the lack of information on the humpback whales that breed in Hawaii whale feeding ground, which has population abundance trend. We and feed in the east Bering Sea, Gulf of similar levels of scarring, estimate that conclude that the Western North Pacific Alaska, and northern British Columbia. the actual annual mortality rate from DPS is in danger of extinction Abundance and Trends for the Hawaii entanglement may be as high as 3.7 throughout its range. DPS percent (Angliss and Outlaw 2008). There is a high level of certainty with Conservation Efforts for the Western Calambokidis et al. (2008) estimated North Pacific DPS regard to this information. The threat is the size of the humpback whale considered to be medium. populations frequenting the Hawaii Currently, NMFS approach Threats generally are considered regulations exist in Alaska to protect breeding area at 10,000 individuals and, assuming that proportions from the likely to have no or minor impact on humpback whales from vessels by population size and/or the growth rate prohibiting vessels from approaching Barlow et al. (2011) estimate of 21,808 individuals in breeding areas in the of the Hawaii DPS or are unknown, with within 100 yards of a humpback whale the following exception: Fishing gear (50 CFR 224.103(b)). This regulation North Pacific are likely to be similar to those estimated by Calambokidis et al. entanglements are considered likely to also requires vessels to maintain a slow, moderately reduce the population size safe speed near humpback whales, and (2008), the population size frequenting or the growth rate of the Hawaii DPS. prohibits vessels from intercepting the Hawaii breeding area would have oncoming whales (a practice also known increased to about 12,000 individuals. Extinction Risk Analysis for the Hawaii as ‘‘leap-frogging’’). In a separate direct The most recent growth rate for this DPS DPS final rule published elsewhere in was estimated between 5.5 percent and today’s issue of the Federal Register, 6.0 percent (Calambokidis et al. 2008). The BRT distributed 98 percent of its More recently, in advance of the June this approach regulation is also being likelihood points for the Hawaii DPS to 2016 IWC Scientific Committee meeting set forth in MMPA regulations (50 CFR the ‘‘not at risk of extinction’’ category. in Slovenia, Wade et al. (2016) part 216) because the Alaska regulation Given the large population size (11,398, submitted a paper in which they used was adopted under authority of both the more than five times the population size an integrated spatial multi-strata mark- MMPA and the ESA but was that the BRT considered sufficient to recapture model to simultaneously inadvertently not codified under the demonstrate that a population was not estimate abundance for all winter and MMPA regulations. It is also being at risk due to low abundance alone), summer areas sampled during the added to 50 CFR 223.214 to extend population growth rate of 5.5–6 percent, SPLASH project in the North Pacific. these ESA protections to threatened and high percentage of likelihood points We believe the multi-strata estimates are humpback whales in Alaskan waters allocated to the ‘‘not at risk of likely less subject to bias from capture (the Mexico DPS). extinction’’ category for the Hawaii DPS, heterogeneity, which has been shown to In addition, Whale SENSE, a we conclude that, despite the moderate lead to substantial biases, and they use threat of fishing gear entanglements, the voluntary program promoting all the data (from both summer and responsible viewing to minimize Hawaii DPS is not in danger of winter), rather than estimating extinction throughout its range and not disturbance and protect whales from abundance from just part of the data. harassment, currently exists in Alaska. likely to become so within the Given this, it seems reasonable to foreseeable future. IWC and CITES conservation efforts conclude that the multi-strata estimates apply to this DPS (please see calculated here are more accurate than Next, per the Final SPOIR Policy, we Conservation Efforts for the Cape Verde the within-season Chapman-Peterson need to determine whether the Hawaii Islands/Northwest Africa DPS). estimates. The multi-strata estimate for DPS is presently in danger of extinction or likely to become so within the Listing Determination for the Western the Hawaii DPS is 11,398 (CV = 0.04), foreseeable future in a significant North Pacific DPS which is higher than the Calambokidis et al. (2008) estimate of 10,000 and just portion of its range, because we have While these conservation efforts are a little less than the estimate based on determined that the DPS is neither likely to benefit this DPS, they are not Barlow et al. (2011). endangered nor threatened based on a sufficient to reduce its extinction risk. The abundance estimate for the rangewide evaluation. The BRT noted For the above reasons, we list the Hawaii DPS is 11,398 individuals and that there are some regional differences Western North Pacific DPS of the its population trend estimate is 5.5–6 in threats for the Hawaii DPS, but it was humpback whale as an endangered percent. unable to identify any portion of the species under the ESA. DPS that both faced particularly high Section 4(a)(1) Factors for the Hawaii threats and was so significant to the Hawaii DPS DPS viability of the DPS as a whole that its The comments that we received on Studies of characteristic wounds and loss would result in the remainder of the Hawaii DPS and additional scarring indicate that this DPS the DPS being at high risk of extinction. information that became available since experiences a high rate of interaction We agree, and we conclude that no the publication of the proposed rule or with fishing gear (20–71 percent), with portion of the Hawaii DPS faces that was not cited in the status review the highest rates recorded in Southeast particularly high threats and is so report (Darling and Morowitz 1986) did Alaska and Northern British Columbia significant to the viability of the DPS not change our conclusion that this DPS (Neilson et al. 2009). However, these that, if lost, the remainder of the DPS does not warrant listing. Therefore, we rates represent only survivors. Fatal would be in danger of extinction, or incorporate herein all information on entanglements of humpback whales in likely to become so within the the Hawaii DPS provided in the status fishing gear have been reported in all foreseeable future. Therefore, we review report and proposed rule (80 FR areas, but, given the isolated nature of conclude that the Hawaii DPS is not in 22304; April 21, 2015). The following much of their range, observed fatalities danger of extinction in a significant represents a brief summary of that are almost certainly under-reported and portion of its range and is not likely to information. should be considered minimum become so within the foreseeable future.

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Conservation Efforts for the Hawaii DPS Mexico DPS by itself. Given evidence of for feeding (Calambokidis et al. 2008). While there are many ongoing population growth throughout most of Numerous collisions have been reported conservation efforts that apply to the the primary feeding areas of the Mexico from Alaska and British Columbia Hawaii DPS, including IWC and CITES DPS (California/Oregon (Calambokidis (where shipping traffic has increased conservation efforts (please see et al. 2008), Gulf of Alaska from the 200 percent in 20 years) (Neilson et al. Conservation Efforts for the Cape Verde Shumagins to Kodiak (Zerbini et al. 2012). According to a summary of Islands/Northwest Africa DPS), we do 2006a)), it was considered unlikely this Alaska ship strike records, an average of not need to further evaluate them in the DPS was declining, but the BRT noted 5 strikes a year was reported from 1978– context of this decision because they that a reliable, quantitative estimate of 2011 (Neilson et al. 2012). However, would serve only to further reduce the the population growth rate for this DPS effects in Alaska will likely be mitigated likely impact of threats. was not available. by the vessel approach regulations More recently, in advance of the June discussed above (66 FR 29502; May 31, Listing Determination for the Hawaii 2016 IWC Scientific Committee meeting 2001) and by NMFS outreach to the DPS in Slovenia, Wade et al. (2016) cruise ship industry to share For the above reasons, we finalize our submitted a paper in which they used information about whale siting proposed determination that the Hawaii an integrated spatial multi-strata mark- locations. DPS of the humpback whale does not recapture model to simultaneously Since the publication of the proposed warrant listing as a threatened or an estimate abundance for all winter and rule, we have updated information on endangered species under the ESA. summer areas sampled during the the number of entanglements off the SPLASH project in the North Pacific. coasts of California, Oregon, and Mexico DPS We believe the multi-strata estimates are Washington in 2015: 31 confirmed After reviewing the comments we likely less subject to bias from capture humpback whales of 48 confirmed received on the Mexico DPS, heterogeneity, which has been shown to whale entanglements (NMFS 2015). reconsidering the information in the lead to substantial biases, and they use This represents a higher rate of fishing proposed rule, and reviewing Wade et all the data (from both summer and gear entanglements than was considered al. (2016), we have reached a different winter), rather than estimating by the BRT and presented in the conclusion regarding the appropriate abundance from just part of the data. proposed rule, but the reasons for the listing status for this DPS. Specifically, Given this, it seems reasonable to observed increase is not clear. These though we did not propose to list the conclude that the multi-strata estimates new reports did not influence our DPS as a ‘‘threatened species’’ or an calculated here are more accurate than conclusions on the status of the Mexico ‘‘endangered species,’’ we will finalize the within-season Chapman-Peterson DPS. That is, our final listing the listing status as a ‘‘threatened estimates. The multi-strata estimate for determination takes into account that species.’’ We incorporate herein all the Mexico DPS is 3,264 (CV = 0.06). fishing gear entanglement poses at least information on the Mexico DPS This is a significantly lower abundance a moderate risk to this DPS but does not provided in the status review report and estimate than the Calambokidis et al. attempt to speculate as to whether or proposed rule (80 FR 22303; April 21, (2008) estimate, and with a coefficient why entanglement may be increasing, as 2015). The following represents a brief of variation of 0.06, it is more reliable. the data are inconclusive (please see our summary of that information. The abundance estimate for the response to Comment 21). The Mexico DPS consists of whales Mexico DPS is 3,264 individuals, and All threats are considered likely to that breed along the Pacific coast of the population trend is unknown. have no or minor impact on population size and/or the growth rate of this DPS mainland Mexico, and the Section 4(a)(1) Factors for the Mexico or are unknown, with the following Revillagigedos Islands and transit DPS through the Baja California Peninsula exception: Fishing gear entanglements coast. The Mexico DPS feeds across a Of the 17 records of stranded whales are still considered likely to moderately broad geographic range from California in Washington, Oregon, and California reduce the population size or the growth to the Aleutian Islands, with in the NMFS stranding database, three rate of the Mexico DPS. concentrations in California-Oregon, involved fishery interactions, two were attributed to vessel strikes, and in five Extinction Risk Analysis for the Mexico northern Washington-southern British DPS Columbia, northern and western Gulf of cases the cause of death could not be Alaska and Bering Sea feeding grounds. determined (Carretta et al. 2010). The BRT distributed 92 percent of its Specifically, between 2004 and 2008, 14 likelihood points for the Mexico DPS to Abundance and Trends for the Mexico humpback whales were reported the ‘‘not at risk of extinction’’ category. DPS seriously injured in commercial At the time we made our proposed The preliminary estimate of fisheries offshore of California and two determinations, given the large abundance of the Mexico DPS that were reported dead. The proportion of population size of 6,000–7,000, informed our proposed rule was 6,000– these that represent the Mexican qualitatively described trend (which, 7,000 from the SPLASH project breeding population is unknown. based on data about growth in the (Calambokidis et al. 2008), or higher Fishing gear involved included gillnet, feeding areas off the west coast of the (Barlow et al. 2011). There were no pot, and trap gear (Carretta et al. 2010). United States could be interpreted to be estimates of precision associated with Between 2004 and 2008, there were two moderately increasing), and high that estimate, so there was considerable humpback whale mortalities resulting percentage of likelihood points uncertainty about the actual population from ship strikes reported and eight allocated to the ‘‘not at risk of size. However, the BRT was confident ship strike attributed injuries for extinction’’ category for the Mexico that the population was likely to be unidentified whales in the California- DPS, we concluded that, despite the much greater than 2,000 in total size Oregon-Washington stock as defined by moderate threat of fishing gear (above the BRT threshold for a NMFS, and some of these may have entanglements, the Mexico DPS was not population to be not at risk due to low been humpback whales (Carretta et al. in danger of extinction throughout its abundance). Estimates of population 2010). The Mexico DPS is known to also range or likely to become so within the growth trends do not exist for the use Alaska and British Columbia waters foreseeable future.

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The updated abundance estimate of and other protected areas (National Park Conservation Efforts for the Cape Verde 3,264 (Wade et al. 2016), while still ‘‘Bahı´a de Loreto,’’ Archipelago ‘‘Islas Islands/Northwest Africa DPS). higher than 2,000 (the BRT’s threshold Marı´as,’’ National Park ‘‘Isla Isabel,’’ Listing Determination for the Mexico between ‘‘not likely to be at risk of and National Park ‘‘Islas Marietas’’ in DPS extinction due to low abundance alone’’ Nayarit). and ‘‘increasing risk from factors The Greater Farallones National While these conservation efforts are associated with low abundance’’), is Marine Sanctuary has whale approach likely to benefit this DPS, they are not significantly lower than the previous guidelines that provide some protection sufficient to change its extinction risk. estimate of 6,000–7,000, though these to individuals from the Mexico DPS For the above reasons, we list the estimates were derived from the same while they are in their feeding areas. Mexico DPS of the humpback whale as data. The BRT considered that this DPS In addition, Whale SENSE, a a threatened species under the ESA. voluntary program promoting was unlikely to be declining because of Central America DPS the population growth throughout most responsible viewing to minimize of its feeding areas, in California/Oregon disturbance and protect whales from After reviewing the comments we and the Gulf of Alaska, but we do not harassment is expected to be adopted in received on the Central America DPS have specific evidence that this DPS is California in the near future. and reconsidering the information in the actually increasing in overall population In Canada, the ‘‘North Pacific’’ proposed rule, we have reached a size. population of humpback whales (i.e., different conclusion regarding the We have reconsidered our original the whales that feed along the entire appropriate listing status for this DPS. listing determination for this DPS in length of the west coast of British Specifically, though we proposed to list light of the revised abundance estimate Columbia from Washington to Alaska, the DPS as a ‘‘threatened species,’’ we that is significantly lower than we including in inshore coastal inlets and will finalize the listing as an previously thought (that is only about offshore waters) is listed as threatened ‘‘endangered species.’’ We incorporate 50 percent greater than the size that the under the SARA (http:// herein all information on the Central BRT considered sufficient to www.sararegistry.gc.ca/approach/act/ America DPS provided in the status demonstrate that a population was not default_e.cfm), so it is illegal to kill, review report and proposed rule (80 FR at risk due to low abundance alone) and harass, capture or harm members of this 22303; April 21, 2015). The following the presence of a known threat of population in any way. Because some represents a brief summary of that moderate intensity. In these individuals from the Mexico DPS feed information. circumstances, for this particular DPS, in southern British Columbia, the SARA The Central America DPS is the risk to the species is compounded listing should provide some benefits to composed of whales that breed along by the absence of firm data to establish individuals while feeding there. Critical the Pacific coast of Costa Rica, Panama, the population abundance trend. As habitat has been identified under Guatemala, El Salvador, Honduras and discussed above under the Status Canadian law to the extent possible off Nicaragua. Whales from this breeding Review section, the BRT considered Langara Island, southeast Moresby ground feed almost exclusively offshore abundance and trend information Island, Gil Island and southwest of California and Oregon in the eastern carefully in evaluating extinction risk, Vancouver Island. These areas support Pacific, with only a few individuals but abundance was not the sole criterion feeding and foraging, and resting and identified at the northern Washington- for evaluating extinction risk. The socializing, and they are protected from southern British Columbia feeding thresholds described by the BRT were destruction. A recovery strategy under grounds. only general guidelines, and we must SARA was published in 2013 (Fisheries and Oceans Canada 2013). The two Abundance and Trends for the Central consider them in light of the America DPS considerations we just outlined. Fishing goals of this recovery strategy are: In the gear entanglement is likely to short term, to maintain, at a minimum, A preliminary estimate of abundance moderately reduce the population size the current abundance of humpback of the Central America population was or growth rate of this DPS. In this case, whales in British Columbia (using best ∼500 from the SPLASH project we do not agree with the BRT’s estimate of 2,145 animals (95 percent CI (Calambokidis et al. 2008), or ∼600 conclusions on the extinction risk for = 1,970–2,331 as presented in Ford et al. based on the reanalysis by Barlow et al. the Mexico DPS. We conclude that the 2009)); and, in the longer-term, to (2011). There were no estimates of Mexico DPS is likely to become observe continued growth of the precision associated with these endangered throughout its range within population and expansion into suitable estimates, so there was considerable the foreseeable future, i.e., that it is a habitats throughout British Columbia. uncertainty about the actual population threatened species. To meet these goals, threat and size. Therefore, the actual population population monitoring, research, size could have been somewhat larger or Conservation Efforts for the Mexico DPS management, protection and smaller than 500–600, but the BRT Mexican Standard 131 establishes enforcement, stewardship, outreach and considered it very unlikely to be as large guidelines and specifications for whale education activities were recommended. as 2,000 or more. The size of this DPS watching, including avoidance Based on the need to assess population- was relatively low compared to most distances and speeds, limits on the level effects of threats and develop other North Pacific breeding number of boats, and protection from appropriate mitigation measures, populations (Calambokidis et al. 2008) noise (echo sounders are prohibited). activities to monitor and assess threats and within the range of population sizes Mexico has also established protected were given higher priority. An action considered by the BRT to be at risk natural areas that contribute to the plan to implement the Canadian based on low abundance. The trend of conservation and sustainable recovery strategy is expected to be the Central America DPS was management of humpback whales. completed within five years of final considered unknown. These include Natural Heritage whale posting of the recovery strategy on the More recently, in advance of the June sanctuaries (Biosphere Reserve ‘‘El SAR Public Registry. 2016 IWC Scientific Committee meeting Vizcaı´no’’ and National Marine Park IWC and CITES conservation efforts in Slovenia, Wade et al. (2016) ‘‘Cabo Pulmo’’ in Baja California Sur) apply to this DPS (please see submitted a paper in which they used

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an integrated spatial multi-strata mark- the number of entanglements off We have reconsidered our original recapture model to simultaneously California, Oregon, and Washington in listing determination for this DPS in estimate abundance for all winter and 2015: 31 confirmed humpback whales of light of the original low abundance summer areas sampled during the 48 confirmed whale entanglements estimate (which was at the dividing line SPLASH project in the North Pacific. (NMFS 2015). This represents a higher between BRT risk categories), the fact We believe the multi-strata estimates are rate of fishing gear entanglements than that the moderate threats of vessel likely less subject to bias from capture was considered by the BRT and collisions and fishing gear entanglement heterogeneity, which has been shown to presented in the proposed rule, but the continue to act upon a population that lead to substantial biases, and they use reasons for the observed increase is not is so small, and the considerable all the data (from both summer and clear. These new reports did not uncertainty reflected in the distribution winter), rather than estimating influence our conclusions on the status of BRT votes. Under these abundance from just part of the data. of the Central America DPS. That is, our circumstances, for this particular DPS, Given this, it seems reasonable to final listing determination does not rely the risk is compounded by the lack of conclude that the multi-strata estimates on entanglements being at a higher rate information on the population calculated here are more accurate than than previously believed (please see our abundance trend. This conclusion was the within-season Chapman-Peterson response to Comment 21). reached prior to receipt of the updated estimates. The multi-strata estimate for All threats are considered likely to abundance estimate, but we note that the Central America DPS is 411 (CV = have no or minor impact on population the revised estimate of 411 is below the 0.30), which is lower than the size and/or the growth rate or are threshold of 500, under which the BRT Calambokidis et al. (2008) preliminary unknown, with the following considered a DPS to be at high risk of estimate of 500 and the estimate of 600 exceptions: Vessel collisions and fishing extinction due to abundance alone and based on Barlow et al. (2011). gear entanglements are considered thus reinforces our final determination. The abundance estimate of the Central likely to moderately reduce the We conclude that the Central America America DPS is 411 individuals, with population size or the growth rate of the DPS is in danger of extinction unknown population trend. Central America DPS. throughout its range. Section 4(a)(1) Factors for the Central Extinction Risk Analysis for the Central Conservation Efforts for the Central America DPS America DPS America DPS Vessel collisions and entanglement in The BRT distributed 28 percent of its The Greater Farallones National fishing gear pose the greatest threat to likelihood points for the Central Marine Sanctuary has whale approach this DPS. Especially high levels of large America DPS in the ‘‘high risk of guidelines that provide some protection vessel traffic are found in this DPS’ extinction’’ category, 56 percent in the to individuals from the Central America range off Panama, southern California, ‘‘moderate risk of extinction’’ category, DPS while they are in their feeding and San Francisco. Several records exist and 16 percent in the ‘‘not at risk of areas. of ships striking humpback whales extinction’’ category, but the In addition, Whale SENSE, a (Carretta et al. 2008; Douglas et al. distribution of votes among the risk voluntary program promoting 2008), and it is likely that not all categories indicates uncertainty. Even responsible viewing to minimize incidents are reported. Two deaths of though the BRT used 500 as a guideline disturbance and protect whales from humpback whales were attributed to between moderate and high risk of harassment is expected to be adopted in ship strikes along the U.S. west coast in extinction (when considering California in the near future. 2004–2008 (Carretta et al. 2010). Ship abundance alone), the abundance In Canada, the ‘‘North Pacific’’ strikes are probably underreported estimates include a high level of population of humpback whales (i.e., (Bettridge et al. 2015 at 88), and the uncertainty. As noted above, the the whales that feed along the entire level of associated mortality is also population trend is unknown. length of the west coast of British likely higher than the observed While some may point out that this Columbia from Washington to Alaska, mortalities. Vessel collisions were population feeds in Southern and including in inshore coastal inlets and determined to pose a medium risk to central California, and those offshore waters) is listed as threatened this DPS, especially given the small populations are increasing, Mexico DPS under the SARA (http:// population size. Shipping traffic will whales also feed in this area, and it is www.sararegistry.gc.ca/approach/act/ probably increase as global commerce likely that Mexico DPS whales represent default_e.cfm), so it is illegal to kill, increases; thus, a reasonable assumption a higher proportion of the whales in this harass, capture or harm members of this is that the level of ship strikes will also feeding area because they are more population in any way. Since some increase. abundant (3,264 individuals in the individuals from the Central America Between 2004 and 2008, 18 Mexico DPS vs. 411 individuals in the DPS feed in southern British Columbia, humpback whale entanglements in Central America DPS). Vessel strikes the SARA listing should provide some commercial fishing gear off California, and fishing gear entanglement are still benefits to individuals while feeding Oregon, and Washington were reported likely to moderately reduce population there. Critical habitat has been (Carretta et al. 2010), although the actual size or growth rate. identified under Canadian law to the number of entanglements may be The BRT concluded that this DPS was extent possible off Langara Island, underreported. Effective fisheries between ‘‘moderate’’ and ‘‘high risk of southeast Moresby Island, Gil Island monitoring and stranding programs extinction,’’ with over a quarter of its and southwest Vancouver Island. These exist in California, but are lacking in likelihood points in the ‘‘high risk of areas support feeding and foraging, and Central America and much of Mexico. extinction’’ category. Because the resting and socializing, and they are Levels of mortality from entanglement Central America DPS shares mtDNA protected from destruction. A recovery are unknown and do vary by region, but haplotypes with some Southern strategy under SARA was published in entanglement scarring rates indicate a Hemisphere DPSs, suggesting it may 2013 (Fisheries and Oceans Canada significant interaction with fishing gear. serve as a conduit for gene flow between 2013). The two goals of this recovery Since the proposed rule published, we the North Pacific and Southern strategy are: In the short term, to have received updated information on Hemisphere, it is unique. maintain at a minimum, the current

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abundance of humpback whales in (95 percent CI = 5,000–8,000) in 2005. is so significant to the viability of the British Columbia (using best estimate of This estimate corresponds to nearly 24 remainder of the DPS that, if lost, it 2,145 animals (95 percent CI = 1,970– percent of this DPS’ pre-exploitation would be in danger of extinction, or 2,331 as presented in Ford et al. 2009)); abundance (Zerbini et al. 2006d). Nearly likely to become so within the and in the longer-term, to observe 80 percent of the whales are found in foreseeable future. Therefore, we continued growth of the population and the Abrolhos Bank, the eastern tip of the conclude that the Brazil DPS is not expansion into suitable habitats Brazilian continental shelf located threatened or endangered in a throughout British Columbia. To meet between 16° S. and 18° S. (Andriolo et significant portion of its range. these goals, threat and population al. 2010). The best estimate of Conservation Efforts for the Brazil DPS monitoring, research, management, population growth rate is 7.4 percent protection and enforcement, per year (95 percent CI = 0.5–14.7 Other than protections provided to stewardship, outreach and education percent) for the period 1995–1998 humpback whales by the IWC and activities were recommended. Based on (Ward et al. 2011). CITES (please see Conservation Efforts the need to assess population-level The abundance estimate for the Brazil for the Cape Verde Islands/Northwest effects of threats and develop DPS is estimated to be 6,400 Africa DPS), we are not aware of any appropriate mitigation measures, individuals, with a 7.4 percent per year ongoing conservation efforts for this activities to monitor and assess threats population growth rate. DPS. Regardless, we do not need to were given higher priority. An action Section 4(a)(1) Factors for the Brazil further evaluate conservation efforts in plan to implement the Canadian DPS the context of this decision because they recovery strategy is expected to be would serve only to further reduce the completed within five years of final All threats are considered likely to likely impact of threats. have no or minor impact on population posting of the recovery strategy on the Listing Determination for the Brazil DPS SAR Public Registry. size and/or the growth rate of the Brazil IWC and CITES conservation efforts DPS or are unknown. For the above reasons, we finalize our apply to this DPS (please see Extinction Risk Analysis for the Brazil proposed determination that the Brazil Conservation Efforts for the Cape Verde DPS DPS of the humpback whale does not Islands/Northwest Africa DPS). warrant listing as a threatened species The BRT distributed 96 percent of or an endangered species under the Listing Determination for the Central their likelihood points to the ‘‘not at risk ESA. America DPS of extinction’’ category for the Brazil Gabon/Southwest Africa DPS While these conservation efforts are DPS, thus indicating a high certainty in likely to benefit this DPS, they are not its voting. None of the factors that may The comments that we received on sufficient to change its extinction risk. negatively impact the status of the the Gabon/Southwest Africa DPS and For the above reasons, we list the humpback whale appear to have additional information that became Central America DPS of the humpback impeded recovery, either alone or available since the publication of the whale as an endangered species under cumulatively, for this DPS. Given the proposed rule did not change our the ESA. large population size (6,400, more than conclusion that this DPS does not three times the population size that the warrant listing as a threatened species Brazil DPS BRT considered sufficient to or an endangered species. We The comments that we received on demonstrate that a population was not incorporate herein all information on the Brazil DPS and additional at risk due to low abundance alone) of the Gabon/Southwest Africa DPS information that became available since this DPS, the fact that it is known to be provided in the status review report and the publication of the proposed rule did increasing in population size, the high proposed rule (80 FR 22304; April 21, not change our conclusion that this DPS percentage of likelihood points 2015). The following represents a brief does not warrant listing as a threatened allocated to the ‘‘not at risk of summary of that information and some species or an endangered species under extinction’’ category, and the high new information. the ESA. Therefore, we incorporate certainty associated with these The Gabon/Southwest Africa DPS herein all information on the Brazil DPS extinction risk estimates, we conclude consists of whales that breed and calve provided in the status review report and that the Brazil DPS is not in danger of off central western Africa between ∼6° proposed rule (80 FR 22304; April 21, extinction throughout its range S. and ∼6° N. in the eastern Atlantic, 2015). The following represents a brief presently and not likely to become so including the coastal regions of northern summary of that information. within the foreseeable future. Angola, Congo, Togo, Gabon, Benin, This DPS consists of whales that Next, per the Final SPOIR Policy, we other coastal countries within the Gulf breed between 3° S. and 23° S. in the need to determine whether the Brazil of Guinea and possibly further north. southwestern Atlantic along the coast of DPS is in danger of extinction or likely This DPS is thought to feed offshore of Brazil, with a prominent concentration to become so in the foreseeable future in west South Africa and Namibia south of around the Abrolhos Bank (15°–18° S.), a significant portion of its range, 18° S. and in the Southern Ocean and feed off South Georgia and the because we have determined that the beneath west South Africa (20° W. ¥10° South Sandwich Islands. DPS is neither endangered nor E.). threatened based on a rangewide Abundance and Trends for the Brazil evaluation. The BRT was unable to Abundance and Trends for the Gabon/ DPS identify a portion of the Brazil DPS that Southwest Africa DPS The most recent abundance estimate both faced particularly high threats and We have reviewed two more recent for the Brazil DPS comes from aerial was so significant to the viability of the papers that were not included in the surveys conducted off the coast of Brazil DPS as a whole that its loss would result status review report or considered in the in 2002–2005 (Andriolo et al. 2010). in the remainder of the DPS being at proposed rule (Collins et al. 2010, with These surveys covered the continental high risk of extinction. We agree, and abundance estimates of 4,314 (CV = shelf between 6° S. and 24°30′ S. and we also conclude that no portion of this 0.19) for 2001–2004 and 7,134 (CV = provided a best estimate of 6,400 whales DPS faces particularly high threats and 0.23) for 2004–2006) and the IWC 2012

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assessment of the Gabon stock for 2005 danger of extinction throughout its conclusion that this DPS does not (9,484 (90 percent PI = 7465,12,221), range presently or within the warrant listing. Therefore, we growth rate = 0.045 (90 percent PI = foreseeable future. incorporate herein all information on 0.006, 0.081)). We conclude that it is Next, per the Final SPOIR Policy, we the Southeast Africa/Madagascar DPS appropriate to use an abundance need to determine whether the Gabon/ provided in the status review report and estimate of 7,134 (CV = 0.23, 95 percent Southwest Africa DPS is in danger of proposed rule (80 FR 22303; April 21, CI 4,576–11,124) for the Gabon/ extinction or likely to become so within 2015). The following represents a brief Northwest Africa DPS, as explained in the foreseeable future in a significant summary of that information. our response to Comment 58. The trend portion of its range, because we have The Southeast Africa/Madagascar DPS is still unknown because we have determined that the DPS is neither includes whales breeding in at least determined that it is not appropriate to endangered nor threatened based on a three different areas in the western rely on the growth rate from the IWC rangewide evaluation. The BRT Indian Ocean: One associated with (2012) assessment (see response to concluded that there was some evidence mainland coastal waters of southeastern Comment 58). for population substructure within the Africa, extending from Mozambique to Gabon/Southwest Africa DPS, based on as far north as Tanzania and southern Section 4(a)(1) Factors for the Gabon/ an extensive breeding range with some Kenya; a second found in the coastal Southwest Africa DPS significant genetic differentiation among waters of the northern Mozambique For humpback whales using the breeding locations (Rosenbam et al. Channel Islands and the southern waters of central western Africa, 2009). However, the BRT was unable to Seychelles; and the third found in the expanding offshore hydrocarbon identify any portion of the DPS that coastal waters of eastern Madagascar. extraction activity now poses an both faced particularly high threats and The feeding grounds of this DPS in the increasing threat (Findlay et al. 2006). was so significant to the viability of the Southern Ocean are not well defined but The degree to which humpback whales DPS as a whole that its loss would result are believed to include multiple are affected by offshore hydrocarbon in the remainder of the DPS being at localities to the west and east of the extraction activity is not known, but it high risk of extinction. We agree, and region bounded by 5° W. ¥60° E. is believed that long-term exposure to we also conclude that no portions of low levels of pollutants and noise, as Abundance and Trends for the this DPS face particularly high threats Southeast Africa/Madagascar DPS well as the drastic consequences of and are so significant to the viability of potential oil spills, could have the DPS that, if lost, the DPS would be The most recent abundance estimates conservation implications. in danger of extinction, or likely to for the Madagascar population were All threats are considered likely to become so within the foreseeable future. from surveys of Antongil Bay, 2000– have no or minor impact on population Therefore we conclude that the Gabon/ 2006 (Cerchio et al. 2009). Estimates size and/or the growth rate or are Southwest Africa DPS is not threatened using data from 2004–2006 and unknown, with the exception of energy or endangered in a significant portion of involving ‘‘closed’’ models of photo- exploration posing a moderate threat to its range. identification of individuals and Gabon/Southwest Africa DPS. genotype data were 7,406 (CV = 0.37, CI Conservation Efforts for the Gabon/ = 2,106–12,706) and 6,951 (CV = 0.33, Extinction Risk Analysis for the Gabon/ Southwest Africa DPS CI = 2,509–11,394), respectively. Southwest Africa DPS Other than whale-watching Additional estimates were made using The BRT distributed 93 percent of regulations in South Africa that help various data sets (e.g., photo- their likelihood points to the ‘‘not at risk protect humpback whales from the identification and genotype) and of extinction’’ category for the Gabon/ Gabon/Southwest Africa DPS and models, estimating 4,936 (CV = 0.44, CI Southwest Africa DPS, thus indicating a protections provided to humpback = 2,137–11,692) and 8,169 individuals high certainty in its voting. Despite the whales by the IWC and CITES (please (CV = 0.44, CI = 3,476–19,497, Cerchio threat of offshore hydrocarbon activity see Conservation Efforts for the Cape et al. 2009). The mark-recapture data off west Africa, the BRT distributed 93 Verde Islands/Northwest Africa DPS), were derived from surveys over several percent of its likelihood points in the we are not aware of any ongoing years and thus may represent the ‘‘not at risk of extinction’’ category, and conservation efforts specific to this DPS. abundance of whales breeding off we agreed with the BRT’s assessment. Regardless, we do not need to further Madagascar, in addition to possibly We are now relying on the more recent evaluate conservation efforts in the whales breeding in Mayotte and the Collins et al. (2010) abundance estimate context of this decision because they Comoros (Ersts et al. 2006), and to a of 7,134 for this DPS. This estimate does would serve only to further reduce the smaller degree from the East African not differ significantly from the average likely impact of threats. Mainland (Razafindrakoto et al. 2008). of the previous estimates of 6,560 (CV Two trends in relative abundance = 0.15) for 2001–2004 and 8,064 (CV = Listing Determination for the Gabon/ have been calculated from land-based 012) for 2001–2005 (Collins et al. 2008), Southwest Africa DPS observations of the migratory stream which is 7,312. This abundance For the above reasons, we finalize our passing Cape Vidal, east South Africa in estimate is more than three times the proposed determination that the Gabon/ July 1998–2002, and July 1990–2000. population size that the BRT considered Southwest Africa DPS of the humpback The first was an estimate of 12.3 percent sufficient to demonstrate that a whale does not warrant listing as a per year (Findlay and Best 2006) population was not at risk due to low threatened species or an endangered (however, this estimate is likely outside abundance alone), and therefore, we species under the ESA. biological plausibility for this species affirm our earlier conclusion that the (Bannister and Hedley 2001; Noad et al. DPS is not in danger of extinction Southeast Africa/Madagascar DPS 2008; Zerbini et al. 2010)); and the throughout its range presently and not The comments that we received on second is 9.0 percent (an estimate that likely to become so within the the Southeast Africa/Madagascar DPS is within the range calculated for other foreseeable future. and additional information that became Southern Hemisphere breeding grounds Therefore, we conclude that the available since the publication of the (e.g., Ward et al. 2006; Noad et al. 2008; Gabon/Southwest Africa DPS is not in proposed rule did not change our Hedley et al. 2009)). Both rates are

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considered with caution because the Extinction Risk Analysis for the DPS. Regardless, we do not need to surveys were short in duration. It is not Southeast Africa/Madagascar DPS further evaluate conservation efforts in certain that these estimates represent The BRT distributed 96 percent of the context of this decision because they the growth rate of the entire DPS. Given their likelihood points to the ‘‘not at risk would serve only to further reduce the this uncertainty, and the uncertainty of extinction’’ category for the Southeast likely impact of threats. from the short duration of the surveys, Africa/Madagascar DPS, thus indicating Listing Determination for the Southeast we conclude it is likely the DPS is a high degree of certainty in its voting. Africa/Madagascar DPS increasing, but it is not possible to None of the factors that may negatively For the above reasons, we finalize our provide a quantitative estimate of the impact the status of the humpback proposed determination that the rate of increase for the entire DPS. whale appear to have impeded recovery, Southeast Africa/Madagascar DPS of the either alone or cumulatively, for this The Southeast Africa/Madagascar DPS humpback whale does not warrant DPS. The population size (4,936–8,169) is thought to be between 4,936 and listing as a threatened species or an for this DPS is estimated to be more 8,169 individuals in population size, endangered species under the ESA. and its trend is thought to either be than twice and maybe four times the increasing or stable. population size that the BRT considered West Australia DPS sufficient to demonstrate that a The comments that we received on Section 4(a)(1) Factors for the Southeast population was not at risk due to low the West Australia DPS and additional Africa/Madagascar DPS abundance alone and its population information that became available since trend is likely to be stable or increasing. Information regarding fisheries and the publication of the proposed rule did The high percentage of likelihood points not change our conclusion that this DPS other activities is limited. Kiszka et al. allocated to the ‘‘not at risk of (2009) and Razafindrakoto et al. (2008) does not warrant listing. Therefore, we extinction’’ category and the high incorporate herein all information on provided summaries of humpback certainty associated with this extinction whale entanglement and strandings the West Australia DPS provided in the risk estimate further support a finding status review report and proposed rule based on interviews with artisanal that this DPS is healthy and resilient, fishing communities. Substantial gillnet (80 FR 22304; April 21, 2015). The despite the moderate threat posed to following represents a brief summary of fisheries have been reported in the near- this DPS by fishing gear entanglements. that information. shore waters off the coasts of mainland Therefore, we conclude that the The West Australia DPS consists of Africa and Madagascar, and to a lesser Southeast Africa/Madagascar DPS is not the whales whose breeding/wintering extent in the Comoros Archipelago, in danger of extinction throughout its range includes the West Australia coast, Mayotte, and Mascarene Islands, where range presently and not likely to become primarily in the Kimberly Region. such practices are hindered by coral so within the foreseeable future. Individuals in this population migrate reefs and a steep continental slope Next, per the Final SPOIR Policy, we to feeding areas in the Antarctic, bathymetry (Kiszka et al. 2009). need to determine whether the primarily between 80°E and 110°E based Stranding reports and observations from Southeast Africa/Madagascar DPS is in on tagging data. Tanzania and Mozambique have mostly danger of extinction or likely to become implicated gillnets, with most so within the foreseeable future in a Abundance and Trends for the West Madagascan entanglements associated significant portion of its range, because Australia DPS with long-line shark fishing we have determined that the DPS is Abundance of northbound humpback (Razafindrakoto et al. 2008). In Mayotte, neither endangered nor threatened whales in the southeastern Indian humpback whales have been observed based on a rangewide evaluation. The Ocean in 2008 was estimated at 21,750 with gillnet remains attached to them BRT was unable to identify any portion (95 percent CI = 17,550–43,000) based (Kiszka et al. 2009), although no of the Southeast Africa/Madagascar DPS upon line transect survey data (Hedley fatalities have yet been documented. that both faced particularly high threats et al. 2009). The current abundance Industrial fishing operations, including and was so significant to the viability of appears likely close to the historical longlines and drift longlines on fish the DPS as a whole that its loss would abundance for the DPS, although there aggregation devices, purse seine and result in the remainder of the DPS being is some uncertainty of the historical midwater trawling, occur in waters off at high risk of extinction. We agree, and abundance because of difficulties in Mauritius. The extent of bycatch and we also conclude that no portion of this allocating catch to specific breeding entanglement in these waters is DPS faces particularly high threats and populations (IWC 2007a). The current unknown (Kiszka et al. 2009). is so significant to the viability of the abundance is large relative to any of the Strandings and bycatch data from 2001– DPS that, if lost, the remainder of the general guidelines for viable abundance 2005 from South Africa indicated an DPS would be in danger of extinction, levels. The rate of population growth is ∼ estimated 15 humpback whales or likely to become so within the estimated to be 10 percent annually entangled in shark nets (large-mesh foreseeable future. Therefore, we since 1982, which is at or near the gillnets) in KwaZulu Natal province conclude that the Southeast Africa/ estimated physiological limit of the (only one death), while nine stranded Madagascar DPS is not threatened or species (Bannister 1994; Bannister and whales were reported from the south endangered in a significant portion of its Hedley 2001). and east coasts (IWC 2002b, 2003, range. The West Australia DPS abundance estimate is 21,750 individuals, with a 10 2004b, 2005b, 2006b). Conservation Efforts for the Southeast percent per year population growth rate. All threats are considered likely to Africa/Madagascar DPS have no or minor impact on population Other than protections provided to Section 4(a)(1) Factors for the West size and/or the growth rate or are humpback whales by the IWC and Australia DPS unknown, with the exception of fishing CITES (please see Conservation Efforts The threat posed by energy gear entanglements posing a moderate for the Cape Verde Islands/Northwest development to the West Australia DPS threat to the Southeast Africa/ Africa DPS), we are not aware of any was considered medium because of the Madagascar DPS. ongoing conservation efforts for this substantial number of oil rigs and the

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amount of energy exploration activity in Conservation Efforts for the West Section 4(a)(1) Factors for the East the region inhabited by the whales Australia DPS Australia DPS (indicator CO–26 in (Beeton et al. While there are many ongoing All threats are considered likely to 2006)). Additionally, there are proposals conservation efforts that apply to the have no or minor impact on population for many more oil platforms to be built West Australia DPS, we do not need to size and/or the growth rate or are in the near future, which are highly further evaluate them in the context of unknown. likely to be executed (Department of this decision because they would serve Extinction Risk Analysis for the East Industry and Resources 2008). only to further reduce the likely impact Australia DPS All threats are considered likely to of threats. have no or minor impact on population The BRT distributed 96 percent of size and/or the growth rate or are Listing Determination for the West their likelihood points to the ‘‘not at risk unknown, with the exception of energy Australia DPS of extinction’’ category for the East exploration posing a moderate threat to For the above reasons, we finalize our Australia DPS, thus indicating a high the West Australia DPS. proposed determination that the West degree of certainty in its voting. None of Extinction Risk Analysis for the West Australia DPS of the humpback whale the factors that may negatively impact Australia DPS does not warrant listing as a threatened the status of the humpback whale species or an endangered species under appear to have impeded recovery, either The BRT distributed 97 percent of the ESA. alone or cumulatively, for this DPS. their likelihood points to the ‘‘not at risk Given the large population size (6,300– East Australia DPS of extinction’’ category for the West 7,800, more than three times the Australia DPS, thus indicating a high The comments that we received on population size that the BRT considered degree of certainty in its voting. None of the East Australia DPS and additional sufficient to demonstrate that a the factors that may negatively impact information that became available since population was not at risk due to low the status of the humpback whale the publication of the proposed rule did abundance alone) for this DPS, the fact appear to have impeded recovery, either not change our conclusion that this DPS that its trend is increasing at a rate of alone or cumulatively, for this DPS. does not warrant listing. Therefore, we 10.9 percent per year, the high Given the large population size (21,750) incorporate herein all information on percentage of likelihood points for this DPS (more than ten times the the East Australia DPS provided in the allocated to the ‘‘not at risk of population size that the BRT considered status review report and proposed rule extinction’’ category, and the high sufficient to demonstrate that a (80 FR 22304; April 21, 2015). The certainty associated with this extinction population was not at risk due to low following represents a brief summary of risk estimate, we conclude that the East abundance alone), the fact that its trend that information. Australia DPS is not in danger of is increasing at a rate of 10 percent per The East Australia DPS consists of the extinction throughout its range year, the high percentage of likelihood whales breeding/wintering along the presently and not likely to become so points allocated to the ‘‘not at risk of eastern and northeastern Australian within the foreseeable future. extinction’’ category, and the high coast. Based upon tagging, telemetry, Next, per the Final SPOIR Policy, we certainty associated with this extinction and re-sighting data, individuals in this need to determine whether the East risk estimate, we conclude that the West population migrate to Antarctic feeding Australia DPS is in danger of extinction Australia DPS is not in danger of areas ranging from 100° E. to 180° E., or likely to become so within the extinction throughout its range but are concentrated mostly between foreseeable future in a significant presently and not likely to become so 120° E. and 180° E. portion of its range, because we have within the foreseeable future. determined that the DPS is neither Abundance and Trends for the East Next, per the Final SPOIR Policy, we endangered nor threatened based on a Australia DPS need to determine whether the West rangewide evaluation. The BRT was Australia DPS is in danger of extinction Abundance of the East Australia DPS unable to identify a portion of the East or likely to become so within the was estimated to be 6,300–7,800 (95 Australia DPS that both faced foreseeable future in a significant percent CI = 4,040–10,739) in 2005 particularly high threats and was so portion of its range, because we have based on photo-ID data (Paton and significant to the viability of the DPS as determined that the DPS is neither Clapham 2006; Paton et al. 2008; Paton a whole that its loss would result in the endangered nor threatened based on a et al. 2009). The current abundance is remainder of the DPS being at high risk rangewide evaluation. The BRT was large relative to any of the general of extinction. We agree, and we also unable to identify a portion of the West guidelines for viable abundance levels. conclude that no portion of this DPS Australia DPS that both faced The annual rate of increase is estimated faces particularly high threats and is so particularly high threats and was so to be 10.9 percent for humpback whales significant to the viability of the DPS significant to the viability of the DPS as in the southwestern Pacific Ocean that, if lost, the remainder of the DPS a whole that its loss would result in the (Noad et al. 2008). This estimate of would be in danger of extinction, or remainder of the DPS being at high risk population increase is very close to the likely to become so within the of extinction. We agree, and we also biologically plausible upper limit of foreseeable future. Therefore, we conclude that no portion of this DPS reproduction for humpbacks (Zerbini et conclude that the East Australia DPS is faces particularly high threats and is so al. 2010). The surveys presented by not threatened or endangered in a significant to the viability of the DPS Noad et al. (2005, 2008) have remained significant portion of its range. that, if lost, the remainder of the DPS consistent over time, with a strong would be in danger of extinction, or correlation (r > 0.99) between counts Conservation Efforts for the East likely to become so within the and years. Australia DPS foreseeable future. Therefore, we The East Australia DPS abundance While there are many ongoing conclude that the West Australia DPS is estimate is between 6,300 and 7,800, conservation efforts that apply to the not threatened or endangered in a with a 10.9 percent per year population East Australia DPS, we do not need to significant portion of its range. growth rate. further evaluate them in the context of

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this decision because they would serve humpback whales within the Oceania twice the population size that the BRT only to further reduce the likely impact region creates higher uncertainty considered sufficient to demonstrate of threats. regarding demographic parameters and that a population was not at risk due to threat levels than for any other DPS. low abundance alone), the 3 percent Listing Determination for the East The abundance estimate for the annual growth rate, the majority of Australia DPS Oceania DPS is 4,329 individuals, with likelihood points allocated to the ‘‘not at For the above reasons, we finalize our a population growth rate of 3 percent risk of extinction’’ category, and the proposed determination that the East per year. moderate certainty associated with the Australia DPS of the humpback whale extinction risk estimate for the Oceania does not warrant listing as a threatened Section 4(a)(1) Factors for the Oceania DPS DPS, we conclude that the Oceania DPS species or an endangered species under is not in danger of extinction throughout the ESA. There is little information available all of its range presently and not likely from the South Pacific regarding Oceania DPS to become so within the foreseeable entanglement with fishing gear; two future. The comments that we received on humpback whales have been observed Next, per the Final SPOIR Policy, we the Oceania DPS and additional in Tonga entangled in rope in one need to determine whether the Oceania information that became available since instance and fishing net in another DPS is in danger of extinction or likely the publication of the proposed rule did (Donoghue, pers. comm.). One not change our conclusion that this DPS humpback mother (and her calf) was to become so within the foreseeable does not warrant listing. Therefore, we reported entangled in a longline in the future in a significant portion of its incorporate herein all information on Cook Islands in 2007 (South Pacific range, because we have determined that the Oceania DPS provided in the status Whale Research Consortium 2008). the DPS is neither endangered nor review report and proposed rule (80 FR Entanglement scars have been seen on threatened based on a rangewide 22304; April 21, 2015). The following humpback whales in American Samoa, evaluation. The BRT noted that the represents a brief summary of that but there are not enough data to Oceania DPS has potentially somewhat information. determine an entanglement rate. greater substructure than most other The Oceania DPS consists of whales Available evidence suggests that humpback whale DPSs due to its that breed/winter in the South Pacific entanglement is a potential concern in extended breeding range, though a lack Islands between ∼160° E., (west of New regions where whales and stationary or of strong genetic structure indicates Caledonia) to ∼120° W. (east of French drifting gear in the water overlap there are likely to be considerable Polynesia), including American Samoa, (Mattila et al. 2010). The threat of demographic connections among these the Cook Islands, Fiji, French Polynesia, entanglements was ranked low for the areas. Some threats, such as whale Republic of Kiribati, Nauru, New Oceania DPS. watching in the Southern Lagoon of Caledonia, Norfolk Island, New All threats are considered likely to New Caledonia, appear to be localized. Zealand, Niue, the Independent State of have no or minor impact on population Nonetheless, the BRT was unable to Samoa, Solomon Islands, Tokelau, size and/or the growth rate or are identify any specific areas where threats Kingdom of Tonga, Tuvalu, Vanuatu, unknown. In the section 4(a)(1) analysis were sufficiently severe to be likely to and Wallis and Futuna. Individuals in section of the proposed rule (80 FR cause local extirpation. We agree, and this population are believed to migrate 22304; April 21, 2015 at 22344), we we also conclude that no portion of this to a largely undescribed Antarctic stated that the BRT ranked the threat of DPS faces particularly high threats and feeding area. entanglements as low for the Oceania is so significant to the viability of the DPS. However, in the Conclusions on DPS that, if lost, the remainder of the Abundance and Trends for the Oceania the Status of Each DPS Under the ESA DPS would be in danger of extinction, DPS section of the proposed rule (80 FR or likely to become so within the The Oceania humpback whale DPS is 22304; April 21, 2015 at 22350), we foreseeable future. Therefore, we of moderate size (4,329 whales; 95 incorrectly stated that fishing gear conclude that the Oceania DPS is not percent CI = 3,345–5,313) (Constantine entanglements posed a moderate threat threatened or endangered in a et al. 2012). The trend of the Oceania to the Oceania DPS. This latter significant portion of its range. DPS was unknown at the time of apparently contradictory statement was Conservation Efforts for the Oceania publication of the proposed rule, though in error and reflected a corresponding DPS more recent information (Constantine et error in the Executive Summary of the al. 2012) that was not included in the BRT report. Other than protections provided to status review report (please see our humpback whales by the IWC and response to Comment 61) or considered Extinction Risk Analysis for the Oceania CITES (please see Conservation Efforts in the proposed rule indicates that the DPS for the Cape Verde Islands/Northwest growth rate of this DPS is 3 percent per The BRT distributed 68 percent of Africa DPS), we are not aware of any year or higher. The DPS is quite their likelihood points to the ‘‘not at risk ongoing conservation efforts for this subdivided, and the population estimate of extinction’’ category for the Oceania DPS. Regardless, we do not need to applies to an aggregate (although it is DPS, indicating a moderate degree of further evaluate conservation efforts in known that sub-populations differ in certainty, and 29 percent of its points to the context of this decision because they growth rates and other demographic the ‘‘moderate risk of extinction’’ would serve only to further reduce the parameters). There are some areas of category, indicating some support for a likely impact of threats. historical range extent that have not conclusion that the species is imperiled. Listing Determination for the Oceania rebounded and other areas without None of the factors that may negatively DPS historical whaling information (Fleming impact the status of the humpback and Jackson 2011). There is uncertainty whale appear to have impeded recovery, For the above reasons, we finalize our regarding which geographic portion of either alone or cumulatively, for this proposed determination that the the Antarctic this DPS uses for feeding. DPS. Given the moderate population Oceania DPS of the humpback whale The complex population structure of size (4,329) for this DPS (more than does not warrant listing as a threatened

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species or an endangered species under size and/or the growth rate or are Listing Determination for the the ESA. unknown, with the exception of fishing Southeastern Pacific DPS gear entanglements posing a moderate Southeastern Pacific DPS For the above reasons, we finalize our threat to the Southeastern Pacific DPS. The comments that we received on proposed determination that the the Southeastern Pacific DPS and Extinction Risk Analysis for the Southeastern Pacific DPS of the additional information that became Southeastern Pacific DPS humpback whale does not warrant available since the publication of the listing as a threatened species or an The BRT distributed 93 percent of endangered species under the ESA. proposed rule did not change our their likelihood points to the ‘‘not at risk conclusion that this DPS does not of extinction’’ category for the Arabian Sea DPS warrant listing. Therefore, we Southeastern Pacific DPS, thus The comments that we received on incorporate herein all information on indicating a high certainty in its voting. the Arabian Sea DPS and additional the Southeastern Pacific DPS provided None of the factors that may negatively information that became available since in the status review report and proposed impact the status of the humpback the publication of the proposed rule did rule (80 FR 22304; April 21, 2015). The whale appear to have impeded recovery, not change our conclusions that this following represents a brief summary of either alone or cumulatively, for this DPS warrants listing as an endangered that information. DPS. Given the large population sizes species. Therefore, we incorporate The Southeastern Pacific DPS consists (6,504) for this DPS (more than three of whales that breed/winter along the herein all information on the Arabian times the population size that the BRT Sea DPS provided in the status review Pacific coasts of Panama to northern considered sufficient to demonstrate Peru (9° N.–6° S.), with the main report and proposed rule (80 FR 22304; that a population was not at risk due to April 21, 2015). The following wintering areas concentrated in low abundance alone), the fact that it is Colombia. Feeding grounds for this DPS represents a brief summary of that thought to be increasing, the high information. are thought to be concentrated in the percentage of likelihood points Chilean Magellan Straits and the The Arabian Sea DPS includes those allocated to the ‘‘not at risk of whales that are currently known to western Antarctic Peninsula. These extinction’’ category, and the high cross-equatorial breeders feed in the breed and feed along the coast of Oman. certainty associated with this extinction However, historical records from the Southern Ocean during much of the risk estimate, we conclude that the austral summer. eastern Arabian Sea along the coasts of Southeastern Pacific DPS is not in Pakistan and India indicate its range Abundance and Trends for the danger of extinction throughout all of its may also include these areas. Southeastern Pacific DPS range presently and not likely to become so within the foreseeable future. Abundance and Trends for the Arabian Individuals of the Southeastern Sea DPS Pacific population migrate from Next, per the Final SPOIR Policy, we breeding grounds between Costa Rica need to determine whether the Mark-recapture studies using tail and northern Peru to feeding grounds in Southeastern Pacific DPS is in danger of fluke photographs collected in Oman the Magellan Straits and along the extinction or likely to become so within from 2000–2004 yielded a population Western Antarctic Peninsula. Though the foreseeable future in a significant estimate of only 82 individuals (95 no quantitative growth rate information portion of its range, because we have percent CI = 60–111). However, sample is available for this DPS, abundance determined that the DPS is neither sizes were small, and there are various estimates over a 13-year period suggest endangered nor threatened based on a sources of possible negative bias, that the DPS size is increasing, and rangewide evaluation. The BRT was including insufficient spatial and abundance was estimated to be 6,504 unable to identify a portion of the temporal coverage of the population’s (95 percent CI = 4,270–9,907) Southeastern Pacific DPS that both suspected range (Minton et al. 2010b). individuals in 2005–2006 (Fe´lix et al. faced particularly high threats and was Reproductive rates in this DPS are not 2006a; Fe´lix et al. 2011). Total so significant to the viability of the DPS well understood. Cow-calf pairs were abundance is likely to be larger because as a whole, that its loss would result in very rarely observed in surveys off the only a portion of the DPS was the remainder of the DPS being at high coast of Oman, composing only 7 enumerated. risk of extinction. We agree, and we also percent of encounters in Dhofar, and not The abundance estimate for the conclude that no portion of this DPS encountered at all since 2001. Soviet Southeastern Pacific DPS is 6,504 faces particularly high threats and is so whaling catches off Oman, Pakistan and individuals, with a population trend significant to the viability of the DPS northwestern India also included low that is likely increasing. that, if lost, the remainder of the DPS numbers of lactating females (3.5 would be in danger of extinction, or percent of mature females) relative to Section 4(a)(1) Factors for the likely to become so within the pregnant females (46 percent of mature Southeastern Pacific DPS foreseeable future. Therefore, we females) (Mikhalev 1997). Aquaculture activities are high in conclude that the Southeastern Pacific No trend data are available for this waters of Argentina and Chile, but the DPS is not threatened or endangered in DPS. A low proportion of immature impact of these activities on this DPS of a significant portion of its range. whales (12.4 percent of all females) was also found, even though catches were humpback whales has not been Conservation Efforts for the indiscriminate with respect to sex and documented and is likely low if few Southeastern Pacific DPS whales use these inland areas. condition (Mikhalev 1997), suggesting Entanglement was determined to pose a While there are many ongoing that calf mortality in this DPS is high, medium threat to this DPS based on conservation efforts that apply to the immature animals occupy areas that stranding and entanglement Southeastern Pacific DPS, we do not have not been surveyed, or that the observations and spatial and temporal need to further evaluate them in the whales have reproductive ‘‘boom and overlap with aquaculture activities. context of this decision because they bust’’ cycles which respond to high All threats are considered likely to would serve only to further reduce the annual variation in productivity. The have no or minor impact on population likely impact of threats. BRT noted that the entire region has not

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been surveyed; however, in areas where Kaluza et al. 2010), so the threat of ship category. We agree with the BRT and the whales are likely to be, not many strikes was considered medium for this conclude that the Arabian Sea DPS is whales have been observed. The BRT small DPS. presently in danger of extinction. noted that this is a very small There is high fishing pressure in areas population by any standard but felt that off Oman where humpback whales are Conservation Efforts for the Arabian Sea there was some uncertainty in sighted. Eight live humpback whale DPS abundance estimates. entanglement incidents were Other than protections provided to The estimated abundance of the documented between 1990 and 2000, humpback whales by the IWC and Arabian Sea DPS is 82 individuals, but involving bottom set gillnets often with CITES (please see Conservation Efforts its entire range was not surveyed, so it weights still attached and anchoring the for the Cape Verde Islands/Northwest could be somewhat larger. Its whales to the ocean floor (Minton 2004). Africa DPS), we are not aware of any population trend is unknown. Minton et al. (2010b) examined ongoing conservation efforts for this peduncle photographs of humpback Section 4(a)(1) Factors for the Arabian DPS. whales in the Arabian Sea and Sea DPS concluded that at least 33 percent had Listing Determination for the Arabian The BRT determined that the threat been entangled in fishing gear at some Sea DPS posed by energy exploration to the stage. The threat of fishing gear Arabian Sea DPS should be classified as entanglements in the Arabian Sea is While the IWC and CITES high, given the small population size considered high and increasing. conservation efforts are likely to benefit and the present levels of energy activity. The threat posed by climate change to all humpback whales, they are not A catastrophic event similar to the the Arabian Sea DPS of the humpback sufficient to change the extinction risk Deepwater Horizon Oil Spill that whale within the foreseeable future was of this DPS. For the above reasons, we occurred in the Gulf of Mexico, the determined to be slightly higher than to finalize our proposal to list the Arabian potential for which is reasonably the other DPSs and was assigned a Sea DPS of the humpback whale as an foreseeable in light of the scope of medium threat level. This higher threat endangered species under the ESA. ongoing activity, could be devastating to level is based on the more limited this DPS, especially in light of the year- movement of this DPS that both breeds Final Determinations round presence of humpback whales in and feeds in the Arabian Sea. In the We reviewed the best available this area. foreseeable future, changing climatic scientific and commercial information, Liver damage was detected in 68.5 conditions may change the monsoon- including the information in the peer percent of necropsied humpback whales driven upwelling that creates seasonal reviewed status review report, public in this area during Soviet whaling in productivity in the region. While comments, and information that has 1966, with degeneration of peripheral Northern Hemisphere individuals may become available since the publication liver sections, cone-shaped growths up be able to adapt to climatic changes by of the proposed rule. We identified 14 to 20 cm in diameter and blocked bile moving farther north, Arabian Sea humpback whale DPSs: West Indies, ducts (Mikhalev 1997). While this individuals have less flexibility for Cape Verde Islands/Northwest Africa, pathology was consistent with infection expanding their range to cooler regions. Western North Pacific, Hawaii, Mexico, by trematode parasites, none were Evidence that this DPS has undergone Central America, Brazil, Gabon/ identified during necropsy, and the a recent genetic bottleneck and is Southwest Africa, Southeast Africa/ causes of this liver damage remain currently at low abundance (Minton et Madagascar, West Australia, East unknown. al. 2010b) suggests that there may be an Australia, Oceania, Southeastern Poisonous algal blooms and biotoxins additional risk of impacts from have been implicated in some mass fish, Pacific, and Arabian Sea. For each DPS, increased inbreeding (which may we reviewed the abundance and trends turtle, and possibly cetacean, mortality reduce genetic fitness and increase events on the Oman coast, although no and section 4(a)(1) factors, performed an susceptibility to disease). At low extinction risk analysis, and considered events have yet been known to include densities, populations are more likely to humpback whales. Coastal run-off from conservation efforts. We determined suffer from the ‘‘Allee’’ effect, where that the Cape Verde Islands/Northwest industrial activities is likely to be inbreeding and the heightened difficulty increasing rapidly, while regular oil Africa, Western North Pacific, Central of finding mates reduces the population America, and Arabian Sea DPSs are spills in shipping lanes from tankers growth rate in proportion to reducing also contribute to pollution along the endangered species, and the Mexico density. DPS is a threatened species. Pursuant to coast (e.g., Shriadah 1999). Tattoo skin The Arabian Sea DPS faces unique the second sentence of section 4(d) of lesions were observed in 26 percent of threats, given that the whales do not the ESA, we extend the prohibitions of photo-identified whales from Oman migrate, but instead feed and breed in section 9(a)(1)(A) through 9(a)(1)(G) of (Baldwin et al. 2010). While not thought the same, relatively constrained the ESA (16 U.S.C. 1538) relating to to be a common cause of adult geographic location. Energy exploration endangered species to threatened mortality, it has been suggested that and fishing gear entanglements are humpback whales (which under this tattoo skin disease may differentially considered likely to seriously reduce the rule consists of the Mexico DPS). kill neonates and calves that have not population’s size and/or growth rate, yet gained immunity (Van Bressem et al. and disease, vessel collisions, and The following nine DPSs do not 2009). The authors also suggested that climate change are likely to moderately warrant listing under the ESA: West this disease may be more prevalent in reduce the population’s size or growth Indies, Hawaii, Brazil, Gabon/Southwest marine mammal populations that rate. Africa, Southeast Africa/Madagascar, experience chronic stress and/or are West Australia, East Australia, Oceania, exposed to pollutants that suppress the Extinction Risk Analysis for the Arabian and Southeastern Pacific. We hereby immune system. Sea DPS replace the original endangered listing Humpback whales in the Arabian Sea The BRT distributed 87 percent of its for the entire species with listings of the are exposed to a high level of vessel likelihood points for the Arabian Sea four endangered DPSs and one traffic (Baldwin 2000; Minton 2004; DPS in the ‘‘at high risk of extinction’’ threatened DPS.

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Peer Review Council, university affiliates, and proposed for listing, or to adversely In December 2004, the Office of private research groups. As noted in modify critical habitat or proposed Management and Budget (OMB) issued Bettridge et al. (2015), many regulatory critical habitat. If a Federal action may a Final Information Quality Bulletin for avenues already in existence provide for affect a listed species or its critical Peer Review, establishing minimum review of proposed projects to reduce or habitat, the responsible Federal agency peer review standards, a transparent prevent adverse effects to humpback must enter into consultation with us. process for public disclosure of peer whales and for post-project monitoring Examples of Federal actions that may review planning, and opportunities for to ensure protection to humpback require section 7 consultation because public participation. The OMB Bulletin, whales, as well as penalties for violation they affect the Cape Verde Islands/ of the prohibition on unauthorized take Northwest Africa, Western North implemented under the Information under the MMPA for all DPSs that occur Pacific, Mexico, Central America, and Quality Act (Pub. L. 106–554), is in U.S. waters or by U.S. persons or Arabian Sea DPSs of the humpback intended to enhance the quality and vessels on the high seas. However, the whale include permits and credibility of the Federal government’s addition and implementation of a authorizations for shipping, fisheries, scientific information and applies to specific Monitoring Plan will provide an oil and gas exploration, and toxic waste influential or highly influential additional degree of attention and an and other pollutant discharges, if they scientific information disseminated on early warning system to ensure that occur in U.S. waters or on the high seas. or after June 16, 2005. To satisfy our identifying 14 DPSs and concluding that Sections 10(a)(1)(A) and (B) of the requirements under the OMB Bulletin, nine of these DPSs do not warrant ESA provide us with authority to grant we obtained independent peer review of listing as threatened or endangered will exceptions to the ESA’s section 9 ‘‘take’’ the status review report by 5 not result in the re-emergence of threats prohibitions. Section 10(a)(1)(A) independent scientists with expertise in to the DPSs. scientific research and enhancement humpback whale biology and genetics, We sought peer review and public permits may be issued to entities and related fields. All peer reviewer comment on the draft Monitoring Plan (Federal and non-Federal) for scientific comments were addressed prior to the during a 30-day public comment period, purposes or to enhance the propagation publication of the status review report and we have addressed these comments or survival of a listed species. The type and proposed rule. in the Comment and Response section of activities potentially requiring a Peer reviewer comments and above. section 10(a)(1)(A) research/ responses to comments can be reviewed enhancement permit include scientific Prohibitions and Protective Measures in the appendix of the status review research that targets humpback whales, report and also at http:// Section 9 of the ESA prohibits certain including the importation of non-U.S. _ www.cio.noaa.gov/services programs/ activities that directly or indirectly samples for research conducted in the prplans/ID284.html. affect endangered species. These United States. Section 10(a)(1)(B) Monitoring Plan prohibitions apply to all individuals, incidental take permits are required for organizations and agencies subject to non-Federal activities that may We worked with the States of Alaska, U.S. jurisdiction. Section 4(d) of the incidentally take a listed species in the Hawaii, and Massachusetts, NOAA’s ESA directs the Secretary of Commerce course of an otherwise lawful activity. National Marine Sanctuary Program, (Secretary) to implement regulations ‘‘to and the National Park Service to provide for the conservation of Identification of Those Activities That develop a plan pursuant to section [threatened] species’’ that may include Would Constitute a Violation of Section 4(g)(1) of the ESA to continue to extending any or all of the prohibitions 9 of the ESA monitor the status of the DPSs that we of section 9 to threatened species. On July 1, 1994, the Services issued consider to not warrant listing under the Section 9(a)(1)(g) also prohibits an Interagency Cooperative Policy for ESA. We find that it is appropriate to violations of protective regulations for Endangered Species Act Section 9 monitor the status of the populations threatened species implemented under Prohibitions (59 FR 34272). The intent that will no longer be listed under this section 4(d). We extend all of the of this policy is to increase public final rule; although this action is not prohibitions of section 9(a)(1) in awareness of the effect of our ESA technically a delisting, we believe protective regulations issued under the listing on proposed and ongoing monitoring is consistent with the intent second sentence of section 4(d) for activities within the species’ range. We of section 4(g)(1) of the ESA (See 16 threatened humpback whales, which identify, to the extent known, specific U.S.C. 1533(g)(1)). We are finalizing this under this final rule includes the activities that will be considered likely plan today with publication of this final Mexico DPS. No special findings are to result in violation of section 9 for rule. The objective of the monitoring required to support extending section 9 endangered species (as well as for plan will be to ensure that necessary prohibitions for the protection of threatened species where the section 9 recovery actions remain in place and to threatened species. See In re Polar Bear prohibitions have been extended), as ensure the absence of substantial new Endangered Species Act Listing and 4(d) well as activities that will not be threats to the DPSs’ continued Rule Litigation, 818 F. Supp. 2d 214, considered likely to result in violation. existence. In part, such monitoring 228 (D.D.C. 2011); Sweet Home Chapter Although the Cape Verde Islands/ efforts are already an integral of Cmties. for a Great Oregon v. Babbitt, Northwest Africa and Arabian Sea DPSs component of ongoing research, existing 1 F.3d 1, 8 (D.C. Cir. 1993), modified on occur outside of the jurisdiction of the stranding networks, and other other grounds on reh’g, 17 F.3d 1463 United States, the possibility for management and enforcement programs (D.C. Cir. 1994), rev’d on other grounds, violations of section 9 of the ESA exists implemented under the MMPA. These 515 U.S. 687 (1995). with respect to these DPSs (for example, activities are conducted by NMFS in Sections 7(a)(2) and (4) of the ESA import into the United States or take by collaboration with other Federal and require Federal agencies to consult or a person subject to the jurisdiction of state agencies, the Western Pacific confer with us to ensure that activities the United States on the high seas). Fishery Management Council, North they authorize, fund, or conduct are not Activities that we believe could result in Pacific Fishery Management Council, likely to jeopardize the continued violation of section 9 prohibitions the New England Fishery Management existence of a listed species or a species against ‘‘take’’ of the members of the

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Western North Pacific, Mexico, and under section 7 of the ESA to ensure species or stock as depleted when the Central America DPSs of the humpback their proposed actions are not likely to basis for its depleted status is that it is whale include: (1) Unauthorized harvest jeopardize the continued existence of below its OSP. This interpretation was or lethal takes of humpback whales that the species or result in destruction or confirmed by the United States Court of are members of the Western North adverse modification of any designated Appeals for the D.C. Circuit. See In re Pacific, Mexico, and Central America critical habitat (16 U.S.C. 1536(a)(2)); Polar Bear Endangered Species Act DPSs by U.S. citizens; (2) unauthorized and prohibitions against ‘‘take’’ (16 Listing and Section 4(d) Rule Litigation, in-water activities conducted by any U.S.C. 1538(a)(1)). Recognition of the 720 F.3d 354 (D.C. Cir. 2013). person subject to the jurisdiction of the species’ plight through listing promotes The language and structure of the United States that produce high levels conservation actions by Federal and MMPA’s definition of depleted lead of underwater noise, which may harass state agencies, foreign entities, private NMFS to the conclusion that a species or injure humpback whales that are groups, and individuals. The main or stock that is designated as depleted members of the Western North Pacific, effects of the listings are prohibitions on solely on the basis of its ESA listing Mexico, and Central America DPSs; (3) take, as well as export and import. The status would cease to qualify as unauthorized U.S. fisheries that may provisions discussed above will no depleted under the terms of that result in entanglement of humpback longer apply to the nine DPSs that are definition if it is no longer listed. whales that are members of the Western in effect removed from the endangered Therefore, a species or stock that is North Pacific, Mexico, and Central species list. For section 7 requirements removed from the list of threatened and America DPSs; (4) vessel strikes on that will continue to apply to listed endangered species loses its depleted whales from the Western North Pacific, DPSs, we recognize the need for an status when removed from the list. Mexico, and Central America DPSs by approach that will allow us to Consistent with the D.C. Circuit’s U.S. ships operating in U.S. waters or on determine which DPSs may be affected opinion in In re Polar Bear Endangered the high seas; and (5) discharging or by Federal actions subject to Species Act Listing and Section 4(d) dumping toxic chemicals or other consultation under section 7 where Rule Litigation, 720 F.3d 354 (D.C. Cir. pollutants by U.S. citizens into areas humpback whales from different DPSs 2013), we believe that the process used by humpback whales that are mix. As we have for other species, we described in section 115(a) applies only members of the Western North Pacific, will likely use a proportional approach to the first basis for designating a Mexico, and Central America DPSs. to indicate which DPSs are affected by species as depleted (i.e., when the We expect, based on the best available any takes based upon the best available agency determines that the species is information, the following actions will science indicating which DPSs are below its OSP). Therefore, we are not result in a violation of section 9: (1) present, depending on the location and required to issue a rule in accordance Federally funded or approved projects timing where take occurred. with the process described in section for which ESA section 7 consultation 115(a) to determine that a species or has been completed and necessary The MMPA provides substantial stock is no longer depleted in cases mitigation developed, and that are protections to all marine mammals, where the agency previously issued a conducted in accordance with any terms such as humpback whales, whether they rule pursuant to section 115(a) and conditions we provide in an are listed under the ESA or not. In designating the species or stock as incidental take statement accompanying addition, the MMPA provides depleted on the basis that it is below its a biological opinion; and (2) takes of heightened protections to marine OSP. However, in the case of a species humpback whales in the Western North mammals designated as ‘‘depleted’’ or stock that achieved depleted status Pacific, Mexico, and Central America (e.g., no take waiver, additional solely on the basis of an ESA listing, DPSs that have been authorized by restrictions on the issuance of permits depleted status automatically terminates NMFS pursuant to section 10 of the for research, importation, and captive if the species or stock is removed from ESA. maintenance). Section 3(1) of the the list of threatened or endangered These lists are not exhaustive. They MMPA defines ‘‘depleted’’ as ‘‘any case species. In such a situation, we may are merely intended to provide some in which’’: (1) The Secretary choose to evaluate whether the species examples of the types of activities that ‘‘determines that a species or population or stock is below its OSP and re- we might or might not consider as stock is below its optimum sustainable designate the species or stock as constituting a take of humpback whales population’’; (2) a state to which depleted through an MMPA rulemaking in the Western North Pacific, Mexico, authority has been delegated makes the on that basis if warranted. and Central America DPSs based on the same determination; or (3) a species or We have previously delisted two information currently available. stock ‘‘is listed as an endangered species populations of marine mammals, both of Whether a violation results from a or a threatened species under the which were considered to be depleted particular activity is entirely dependent [ESA]’’ (16 U.S.C. 1362(1)). Section solely on the basis of an ESA listing. upon the facts and circumstances of 115(a)(1) of the MMPA establishes that The first delisting occurred in 1994, each incident. Further, an activity not ‘‘[i]n any action by the Secretary to when the agency delisted the Eastern listed may in fact constitute or result in determine if a species or stock should be North Pacific (ENP) population of gray a violation. designated as depleted, or should no whales. See 59 FR 31094 (June 16, longer be designated as depleted,’’ such 1994). As indicated by our rejection of Effects of This Rulemaking determination must be made by rule, a petition to designate the ENP gray Conservation measures provided for after public notice and an opportunity whales as depleted under the MMPA in species listed as endangered or for comment (16 U.S.C. 1383b(a)(1)). It 2010, we considered the population to threatened under the ESA include is our position that a marine mammal be no longer depleted following its development of recovery plans (16 species or stock automatically gains delisting (See 75 FR 81225; December U.S.C. 1533(f)); concurrent designation ‘‘depleted’’ status under the MMPA 27, 2010). The second delisting occurred of critical habitat, to the maximum when it is listed under the ESA. In the in 2013, when we delisted the Eastern extent prudent and determinable (16 absence of an ESA listing, we follow the DPS of the Steller sea lion (See 78 FR U.S.C. 1533(a)(3)(A)); Federal agency procedures described in section 66139; November 4, 2013). In our final requirements to consult with NMFS 115(a)(1) to designate a marine mammal rule to delist the DPS, we notified the

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public that the delisting ‘‘w[ould] likely manage one portion of a stock as Pacific DPS as endangered, we will lead to two modifications to depleted and another portion as not retain the approach regulations under classifications of the eastern DPS of depleted under the MMPA, we will treat the ESA at 50 CFR 224.103, and because Steller sea lion under the MMPA: from existing MMPA stocks that fully or we are listing the Mexico DPS as its current classification as a ‘strategic partially coincide with a listed DPS as threatened, we will also add the stock’ and as a ‘depleted’ species to a depleted and stocks that do not fully or provisions to Part 223 at 50 CFR new classification as a ‘non-strategic partially coincide with a listed DPS as 223.214. By separate rulemaking stock’ and/or as not depleted.’’ Id. at not depleted for management purposes. elsewhere in today’s issue of the 66168. We stated that we ‘‘w[ould] Therefore, in the interim, we will treat Federal Register, we therefore consider redesignating the eastern stock the Western North Pacific, Central North promulgate a final rule effecting a of Steller sea lions as non-strategic and Pacific, and California/Oregon/ technical correction and recodification not depleted under the MMPA Washington stocks as depleted because that recodifies these provisions so that following review by the Alaska they partially or fully coincide with they appear in both Parts 223 and 224 Scientific Review Group in 2014.’’ Id. ESA-listed DPSs, and we will treat the and also sets the provisions out in Part We take this opportunity to clarify our Gulf of Maine and American Samoa 216 (MMPA Regulations) at 50 CFR interpretation that loss of depleted stocks as no longer depleted because 216.18, to reflect that these provisions status is automatic at the time at the they do not coincide with any ESA- were originally adopted under the time of a delisting if the sole basis for listed DPS. Any changes in stock MMPA as well as the ESA and are an the species or stocks’ depleted status delineation or MMPA section 117 important source of protection for these was an ESA listing. In the future, we elements (such as PBR or strategic marine mammals. will notify the public in any proposed status) will be reflected in future stock Critical Habitat rule to delist a marine mammal species assessment reports, and the Scientific or stock that a final rule, if promulgated, Review Groups and the public will be Section 3 of the ESA (16 U.S.C. will have the effect of designating the provided opportunity to review and 1532(5)(A)) defines critical habitat as species or stock as no longer depleted. comment. ‘‘(i) the specific areas within the At the time of a delisting, we may This final rule also has implications geographical area occupied by the choose to initiate a rulemaking under for the approach regulations currently at species, at the time it is listed . . . on section 115(a) if information in our files 50 CFR 224.103(a) and (b). With regard which are found those physical or or information presented by a Scientific to the regulations in effect in Hawaii biological features (I) essential to the Review Group indicates that the species (224.103(a)), the delisting of the Hawaii conservation of the species and (II) or stock is below its OSP. We will also DPS removes the ESA basis for which may require special management initiate a review of the species or stock promulgation of that rule. Therefore, considerations or protection; and (ii) pursuant to section 115(a) if we are upon the effective date of this final rule, specific areas outside the geographical petitioned to do so. However, loss of the regulations currently at § 224.103(a) area occupied by the species at the time will be deleted and that paragraph depleted status at the time of a delisting it is listed . . . upon a determination by reserved. However, elsewhere in today’s is automatic if the sole basis for the the Secretary that such areas are issue of the Federal Register, we are population’s depleted status was an essential for the conservation of the issuing an interim final rule to ESA listing; no further review as to OSP species.’’ Section 3 of the ESA also promulgate approach regulations in is necessary before loss of depleted defines the terms ‘‘conserve,’’ Hawaii under the MMPA that are status occurs. ‘‘conserving,’’ and ‘‘conservation’’ to substantially similar to the ESA mean ‘‘to use and the use of all methods Humpback whales were considered to regulations being removed, but also and procedures which are necessary to be depleted species-wide under the prohibit interception (i.e., leap- bring any endangered species or MMPA solely on the basis of the frogging). species’ ESA listing. Therefore, upon With regard to the regulations in threatened species to the point at which the effective date of this rule, humpback effect in Alaska (224.103(b)), the the measures provided pursuant to this whales that are listed as threatened or impacts of this final rule are different. chapter are no longer necessary’’ (16 endangered will retain depleted status When the Alaska provisions were U.S.C. 1532(3)). under the MMPA and humpback whales adopted, we cited section 112(a) of the Section 4(a)(3)(A)(i) of the ESA that are not listed as threatened or MMPA in addition to section 11(f) of the requires that, to the maximum extent endangered will lose depleted status ESA as authority (16 U.S.C. 1382(a); 16 practicable and determinable, critical under the MMPA. However, we note U.S.C. 1540(f)). However, because the habitat be designated concurrently with that the DPSs established in this final humpback whale was listed throughout the listing of a species. Designation of rule that occur in waters under the its range as endangered, the rule was critical habitat must be based on the jurisdiction of the United States do not codified only in Part 224 of the ESA best scientific data available, and must necessarily equate to the existing regulations (which applies to take into consideration the economic, MMPA stocks for which Stock ‘‘Endangered Marine and Anadromous national security, and other relevant Assessment Reports (SARs) have been Species’’). At the time of the proposed impacts of specifying any particular area published in accordance with section listing rule, we did not expect that there as critical habitat (16 U.S.C. 1533(b)(2)). 117 of the MMPA (16 U.S.C. 1386). would be any endangered DPSs present Once critical habitat is designated, Following publication of this rule, we in Alaska and so sought comment as to section 7 of the ESA requires Federal will conduct a review of humpback whether we should relocate the agencies to ensure that they do not fund, whale stock delineations in waters approach regulations from Part 224 to authorize, or carry out any actions that under the jurisdiction of the United Part 223 (setting out ESA regulations are likely to destroy or adversely modify States to determine whether any stocks applicable to ‘‘Threatened Marine and that habitat (16 U.S.C. 1536(a)(2)). This should be realigned in light of the ESA Anadromous Species’’) and also as to requirement is in addition to the section DPSs established herein. Until such whether we should set them out in Part 7 requirement that Federal agencies time as the MMPA stock delineations 216 as MMPA regulations. Because we ensure their actions do not jeopardize are reviewed, because we cannot are now listing the Western North the continued existence of the species.

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In determining what areas qualify as conclude that critical habitat is not future proposals, will not result in critical habitat, 50 CFR 424.12(b) determinable at this time for the cumulatively significant impacts, and requires that NMFS ‘‘Identify physical following reasons: (i) Data sufficient to will not have any adverse effects upon and biological features essential to the perform required analyses are lacking; endangered or threatened species or conservation of the species at an and (ii) the biological needs of the their habitats. In particular, the rule may appropriate level of specificity using the species are not sufficiently well known not reasonably be said to potentially best available scientific data. This to identify any area that meets the have ‘‘any adverse effects upon analysis will vary between species and definition of ‘‘critical habitat’’ (50 CFR endangered or threatened species or may include consideration of the 424.12(a)(2)). We will propose critical their habitats’’ because here the rule appropriate quality, quantity, and habitat for the Western North Pacific, will ensure the same level of protections spatial and temporal arrangements of Mexico, and Central America DPSs of continue to apply to any threatened such features in the context of the life the humpback whale in a separate DPS, which benefits the species. In history, status, and conservation needs rulemaking if we determine that it is addition, we note that there will be no of the species.’’ ‘‘Physical or biological prudent to do so. (See 50 CFR change in the legal or regulatory status features’’ are defined as the ‘‘features 424.12(a)(1).) quo as it relates to the threatened DPS that support the life-history needs of the of humpback whales, because these Classification species, including but not limited to, whales have for decades been covered water characteristics, soil type, National Environmental Policy Act by all protections of section 9 as geological features, sites, prey, (NEPA) endangered species. Issuance of this vegetation, symbiotic species, or other The 1982 amendments to the ESA, in rule thus does not alter the legal and features. A feature may be a single section 4(b)(1)(A), restrict the regulatory status quo in such a way as habitat characteristic, or a more information that may be considered to create any environmental effects. See complex combination of habitat when assessing species for listing. Based Humane Soc. of U.S. v. Johanns, 520 F. characteristics. Features may include on this limitation of criteria for a listing Supp. 2d. 8, 29 (D.D.C. 2007). NEPA habitat characteristics that support decision and the opinion in Pacific analysis is not required in cases where ephemeral or dynamic habitat Legal Foundation v. Andrus, 657 F. 2d the rule will not result in any physical conditions. Features may also be 829 (6th Cir. 1981), we have concluded effects to the environment, much less expressed in terms relating to principles that NEPA does not apply to ESA listing any adverse effects. See Oceana, Inc. v. of conservation biology, such as patch actions. (See NOAA Administrative Bryson, 940 F. Supp. 2d 1029 (N.D. Cal. size, distribution distances, and Order 216–6 (1999), § 6.03.e.1; NAO 2013). connectivity’’ (50 CFR 424.02). The ESA directs the Secretary of 216–6A (2016), § 6.01.) Further, we Executive Order (E.O.) 12866, Commerce to consider the economic conclude that extension of the section Paperwork Reduction Act, and impact, the national security impacts, 9(a)(1) protections in a blanket or Regulatory Flexibility Act categorical fashion is a form of and any other relevant impacts from This rule is exempt from review ministerial action taken under the designating critical habitat, and under under E.O. 12866. This final rule does authority of the second sentence of ESA section 4(b)(2), the Secretary may not contain a collection of information section 4(d). Courts have found that it exclude any area from such designation requirement for the purposes of the is reasonable to interpret the second if the benefits of exclusion outweigh Paperwork Reduction Act. those of inclusion, provided that the sentence of section 4(d) as setting out As noted in the Conference Report on exclusion will not result in the distinct authority from that of the first the 1982 amendments to the ESA, extinction of the species. sentence, which is invoked when the economic impacts cannot be considered 50 CFR 424.12(g) specifies that critical agency proposes tailored or special when assessing the status of a species. habitat shall not be designated within protections that go beyond the standard Therefore, the economic analyses foreign countries or in other areas section 9 protections. See In re Polar required by the Regulatory Flexibility outside U.S. jurisdiction. Because the Bear Endangered Species Act Listing Act are not applicable to the listing known distributions of the humpback and 4(d) Rule Litigation, 818 F. Supp. process. whales in the Cape Verde Islands/ 2d 214, 228 (D.D.C. 2011); Sweet Home Northwest Africa and Arabian Sea DPSs Chapter of Cmties. for a Great Oregon v. E.O. 13132, Federalism occur in areas outside the jurisdiction of Babbitt, 1 F.3d 1, 8 (D.C. Cir.1993), E.O. 13132 requires agencies to take the United States, no critical habitat will modified on other grounds on reh’g, 17 into account any federalism impacts of be designated for these DPSs. F.3d 1463 (D.C. Cir. 1994), rev’d on regulations under development. It In our proposed rule (80 FR 22304; other grounds, 515 U.S. 687 (1995). This includes specific directives for April 21, 2015), we requested type of action is covered under the consultation in situations where a information on the identification of NOAA categorical exclusion for ‘‘policy regulation will preempt state law or specific areas that meet the definition of directives, regulations and guidelines of impose substantial direct compliance critical habitat defined above for the an administrative, financial, legal, costs on state and local governments Western North Pacific and Central technical or procedural nature . . . .’’ (unless required by statute). Neither of America DPSs of the humpback whale. See NAO 216–6, § 6.03c.3(i). None of those circumstances is applicable to this These DPSs, together with the Mexico the exceptional circumstances of § 5.05c final rule; therefore this action does not DPS that we are now listing as of NAO 216–6 applies. That is, the have federalism implications as that threatened, are the only listed DPSs that action does not involve a geographic term is defined in E.O. 13132. occur in U.S. waters or its territories. area with unique characteristics, is not We also solicited biological and the subject of public controversy based E.O. 13175, Consultation and economic information relevant to on potential environmental Coordination with Indian Tribal making a critical habitat designation for consequences, does not have uncertain Governments each DPS. We have reviewed the environmental impacts or unique or The longstanding and distinctive comments provided and the best unknown risks, does not establish a relationship between the Federal and available scientific information. We precedent or decision in principle about tribal governments is defined by

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treaties, statutes, executive orders, provided them with a copy of the PART 223—THREATENED MARINE judicial decisions, and co-management proposed rule, and offered the AND ANADROMOUS SPECIES agreements, which differentiate tribal opportunity to comment on the governments from the other entities that Monitoring Plan. We did not receive any ■ 1. The authority citation for part 223 deal with, or are affected by, the Federal comments. continues to read as follows: government. This relationship has given References Cited rise to a special Federal trust Authority: 16 U.S.C. 1531–1543; subpart B, responsibility involving the legal A list of all references cited in this § 223.201–202 also issued under 16 U.S.C. responsibilities and obligations of the final rule is available at 1361 et seq.; 16 U.S.C. 5503(d) for United States toward Indian Tribes and www.regulations.gov (identified by § 223.206(d)(9). the application of fiduciary standards of docket number NOAA–NMFS–2015– ■ 2. In § 223.102, in the table in 0035) or upon request from NMFS (see due care with respect to Indian lands, paragraph (e), add an entry for ‘‘Whale, ADDRESSES). tribal trust resources, and the exercise of humpback (Mexico DPS)’’ under tribal rights. E.O. 13175—Consultation List of Subjects MARINE MAMMALS in alphabetical and Coordination with Indian Tribal 50 CFR Part 223 order by common name to read as Governments—outlines the follows: responsibilities of the Federal Endangered and threatened species, Government in matters affecting tribal Exports, Imports, Transportation. § 223.102 Enumeration of threatened interests. Section 161 of Public Law marine and anadromous species. 50 CFR Part 224 108–199 (188 Stat. 452), as amended by * * * * * section 518 of Public Law 108–447 (118 Endangered and threatened species. (e) * * * Stat. 3267), directs all Federal agencies Samuel D. Rauch III, to consult with Alaska Native tribes or Deputy Assistant Administrator for organizations on the same basis as Regulatory Programs, National Marine Indian tribes under E.O. 13175. Fisheries Service. We have coordinated with tribal For the reasons set out in the governments and native corporations preamble, 50 CFR parts 223 and 224 are that may be affected by the action. We amended as follows:

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

Marine Mammals

******* Whale, humpback Megaptera Humpback whales that breed or winter in 81 FR [Insert Federal NA ...... 223.213 (Mexico DPS). novaeangliae. the area of mainland Mexico and the Register page Revillagigedos Islands, transit Baja Cali- where the docu- fornia, or feed in the North Pacific ment begins], Sep- Ocean, primarily off California-Oregon, tember 8, 2016. northern Washington-southern British Columbia, northern and western Gulf of Alaska and East Bering Sea.

******* 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).

* * * * * apply to threatened species of the ■ 5. In § 224.101, in the table in humpback whale listed in § 223.102(e). paragraph (h), remove the entry for ■ 3. Add § 223.213 to subpart B to read ‘‘Whale, humpback’’ and add four as follows: PART 224—ENDANGERED MARINE entries in its place to read as follows: AND ANADROMOUS SPECIES § 223.213 Humpback whales. § 224.101 Enumeration of endangered The prohibitions of section 9(a)(1)(A) ■ 4. The authority citation for part 224 marine and anadromous species. through 9(a)(1)(G) of the ESA (16 U.S.C. continues to read as follows: * * * * * 1538) relating to endangered species Authority: 16 U.S.C. 1531–1543 and 16 (h) * * * U.S.C. 1361 et seq.

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

Marine Mammals

******* Whale, humpback Megaptera Humpback whales that breed and feed in 81 FR [Insert Fed- NA ...... NA (Arabian Sea DPS). novaeangliae. the Arabian Sea. eral Register page where the document begins], September 8, 2016. Whale, humpback Megaptera Humpback whales that breed in waters 81 FR [Insert Fed- NA ...... NA (Cape Verde Is- novaeangliae. surrounding the Cape Verde Islands in eral Register lands/Northwest Af- the Eastern North Atlantic Ocean, as page where the rica DPS). well as those that breed in an undeter- document begins], mined breeding area in the eastern trop- September 8, 2016. ical Atlantic (possibly Canary Current) and feed along the Iceland Shelf and Sea and the Norwegian Sea. Whale, humpback Megaptera Humpback whales that breed in waters off 81 FR [Insert Fed- (Central America novaeangliae. Central America in the North Pacific eral Register DPS). Ocean and feed along the west coast of page where the the United States and southern British document begins], Columbia. September 8, 2016. Whale, humpback Megaptera Humpback whales that breed or winter in 81 FR [Insert Fed- (Western North Pa- novaeangliae. the area of Okinawa and the Philippines eral Register cific DPS). in the Kuroshio Current (as well as un- page where the known breeding grounds in the Western document begins], North Pacific Ocean), transit the September 8, 2016. Ogasawara area, or feed in the North Pacific Ocean, primarily in the West Ber- ing Sea and off the Russian coast and the Aleutian Islands.

******* 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).

* * * * * ■ 6. Remove and reserve § 224.103(a) to § 224.103 Special prohibitions for read as follows: endangered marine mammals. (a) [Reserved] * * * * * [FR Doc. 2016–21276 Filed 9–6–16; 4:15 pm] BILLING CODE 3510–22–P

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