Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Revision of Species-Wide Listing

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130708594-6598-03]

RIN 0648-XC751

Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Revision of Species-Wide Listing

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, NMFS, issue a final determination to revise the listing status of the humpback whale (

Megaptera novaeangliae

) under the Endangered Species Act (ESA). We divide the globally listed endangered species into 14 distinct population segments (DPS), remove the current species-level listing, and in its place list four DPSs as endangered and one DPS as threatened. Based on their current statuses, the remaining nine DPSs do not warrant listing. At this time, we find that critical habitat is not determinable for the three listed DPSs that occur in U.S. waters (Western North Pacific, Mexico, Central America); we will consider designating critical habitat for these three DPSs in a separate rulemaking.

DATES:

This final rule is effective October 11, 2016.

ADDRESSES:

Public comments, a list of references cited in this final rule, and other supporting materials are available at

www.regulations.gov

identified by docket number NOAA-NMFS-2015-0035, or by submitting a request to the National ESA Listing Coordinator, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13536, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Marta Nammack, NMFS, (301) 427-8469,

marta.nammack@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

On August 12, 2009, we announced the initiation of a status review of the humpback whale to determine whether an endangered listing for the entire species was still appropriate (74 FR 40568). We sought information from the public to inform our review, contracted with two post-doctoral students to compile the best available scientific and commercial information on the species (Fleming and Jackson 2011), including the past, present, and foreseeable future threats to this species, and appointed a Biological Review Team (BRT) to analyze that information, make conclusions on extinction risk, and prepare a status review report (Bettridge

et al.

2015).

On April 16, 2013, we received a petition from the Hawaii Fishermen's Alliance for Conservation and Tradition, Inc., to classify the North Pacific humpback whale population as a DPS and then “delist” that DPS under the ESA. On February 26, 2014, the State of Alaska submitted a petition to delineate the Central North Pacific (Hawaii) “stock” of the humpback whale as a DPS and subsequently remove that DPS from the ESA List of Endangered and Threatened Species. After reviewing the petitions, the literature cited in the petitions, and other literature and information available in our files, we found that both petitioned actions may be warranted and issued positive 90-day findings (78 FR 53391, August 29, 2013; 79 FR 36281, June 26, 2014). Public comment periods were opened upon publication of these findings to solicit information to be considered in the context of the ongoing status review. We subsequently extended the public comment period pertaining to information regarding the Central North Pacific (Hawaii) population (79 FR 40054; July 11, 2014). We then incorporated all information into a single status review report of the humpback whale (available at

http://www.fisheries.noaa.gov/pr/species/mammals/whales/humpback-whale.html

).

Based on information presented in the status review report (which included a demographic analysis, threats analysis, and extinction risk analysis), our assessment of the BRT's conclusions, and efforts being made to protect the species, we initially determined: (1) 14 populations of the humpback whale met the criteria of the NMFS and U.S. Fish and Wildlife Service (USFWS) joint 1996 DPS Policy and were, therefore, considered to be DPSs; (2) the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs were in danger of extinction throughout their ranges; (3) the Western North Pacific and Central America DPSs were likely to become endangered throughout all of their ranges within the foreseeable future; and (4) the West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs were not in danger of extinction throughout all or a significant portion of their ranges or likely to become so within the foreseeable future. Accordingly, we issued a proposed rule (80 FR 22304; April 21, 2015) to revise the species-wide listing of the humpback whale by replacing it with two endangered species listings (Cape Verde Islands/Northwest Africa and Arabian Sea DPSs) and two threatened species listings (Western North Pacific and Central America DPSs). We also proposed to extend all ESA section 9 prohibitions to both the Western North Pacific and the Central America DPSs. As described below, after considering public comments and the best available scientific and commercial information, we have now reached our final determinations, which in three instances differ from our proposed determinations. We now issue a final rule to revise the species-wide listing of the humpback whale by replacing it with four endangered species listings (Cape Verde Islands/Northwest Africa, Western North Pacific, Central America, and Arabian Sea DPSs) and one threatened species listing (Mexico DPS). We also finalize our proposed rule to extend all ESA section 9 prohibitions to threatened humpback whales (which now consists of the Mexico DPS).

Listing Determinations Under the ESA

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531

et seq.

). To reach a listing determination for a particular group of organisms, we must first consider whether that group of organisms constitutes a “species” under the ESA, and then we consider whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” On February 7, 1996, NMFS and the USFWS (together, the Services) adopted a policy describing what constitutes a DPS of a species or subspecies (61 FR 4722). The joint DPS policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) to which it belongs. As stated in the joint DPS policy, Congress expressed an expectation that the Services would exercise authority with regard to identifying DPSs sparingly and

only when the biological evidence indicates such action is warranted.

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1533(6); (20)). Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so within the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

As we explained in the proposed rule and summarize here, when we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years. Our approach is consistent with the legal analysis adopted by the Department of the Interior.

See

United States Department of the Interior, Office of the Solicitor, Memorandum, “The Meaning of `Foreseeable Future' in section 3(20) of the Endangered Species Act,” M-37021 (Jan. 16, 2009).

In determining the listing status of a species, subspecies, or DPS, the ESA and implementing regulations require that we consider whether the species is endangered or threatened because of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization of the species for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting a species' continued existence (16 U.S.C. 1533(a)(1); 50 CFR 424.11(c)). We evaluate demographic risk factors (

i.e.,

abundance and trend information) in conjunction with the section 4(a)(1) factors. The demographic risk analysis is an assessment of the manifestation of past threats that have contributed to the species' current status and also informs the consideration of the biological response of the species to present and future threats.

Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species (16 U.S.C. 1533(b)(1)(A)).

Applying the definitions of “endangered species” and “threatened species,” we first consider the status of a “species” (which includes subspecies and DPSs) “throughout all . . . of its range.” If (and only if) this rangewide evaluation does not lead to a conclusion that the species should be listed as endangered or threatened, then we must consider whether the species may be endangered or threatened in “a significant portion of its range.” If it is, then the entire species (or subspecies, or DPS) will be listed. As we explained in the proposed rule and summarize here, we are guided in these listing determinations by the final joint policy adopted by the Services in 2014 (79 FR 37577; July 1, 2014) (Final SPOIR Policy). The Final SPOIR Policy explains that it is necessary to fully evaluate a portion under the “significant portion of its range” authority only if substantial information indicates that the members of the species in a particular area are likely to

both

meet the test for biological “significance” established in the policy

and

to be currently endangered or threatened in that area. Making this preliminary determination triggers a need for further review, but does not prejudge whether the portion actually meets these standards such that the species should be listed.

The BRT initially applied the higher threshold for “significance” from the 2011 draft SPOIR policy but before finalizing the report confirmed that application of the threshold of the final SPOIR Policy would not have changed the findings for any DPS (See 80 FR 22304, at 22349). (The draft SPOIR policy differed from the final SPOIR policy in that a portion of the range of a species was considered “significant” if the portion's contribution to the viability of the species was so important that, without that portion, the species would be in danger of extinction (

i.e.,

endangered) throughout all of its range. Under the Final SPOIR Policy, the hypothetical loss of the portion being considered would only need to result in the species being at least threatened throughout its range instead of endangered throughout its range.)

Status Review

A summary of basic biological and life history information of the humpback whale can be found in the proposed rule (80 FR 22304; April 21, 2015 at 22307-22309) and more details can be found in Fleming and Jackson (2011) and the BRT's status review report (Bettridge

et al.

2015; available at

http://www.nmfs.noaa.gov/pr/species/statusreviewes.htm

). As we described more fully in the proposed rule, to identify potential DPSs, the BRT reviewed the best scientific and commercial data available on the humpback whale's taxonomy and concluded that there are likely three unrecognized subspecies of humpback whale: North Pacific, North Atlantic, and Southern Hemisphere. In reaching this conclusion, the BRT considered available life history, morphological, and genetic information (mtDNA and DNA relationships and distribution, as described in Jackson

et al.

(2014)). Next, the BRT considered various humpback whale populations to determine whether they satisfied the DPS criteria of discreteness and significance relative to the three subspecies.

The BRT considered both the abundance and trend information (

i.e.,

the demographic analysis) and the threats to each DPS before reaching its conclusions on overall extinction risk for each DPS. With regard to the demographic analysis, the BRT concluded that abundance and, where available, trend information should be considered carefully but were not the sole criteria for evaluating extinction risk. When considering numbers of individuals within a DPS, the BRT considered the following general thresholds for population risk: A DPS with a total population size >2,000 individuals was not likely to be at risk due to low abundance alone; a DPS with a population size <2,000 individuals would be at increasing risk from factors associated with low abundance (and the lower the population size, the greater the risk); a DPS with a population size <500 individuals would be at high risk due to low abundance; and a DPS with

a population size <100 individuals would be at extremely high risk due to low abundance. BRT members also considered how each of the factors (or threats) listed in ESA section 4(a)(1) contribute to the extinction risk of each DPS now and in the foreseeable future.

The BRT decided to evaluate risk of extinction over a time frame of approximately 60 years, which corresponds to about three humpback whale generations. The BRT concluded it could be reasonably confident in evaluating extinction risk over this time period (the foreseeable future) because current trends in both the biological status of the species and the threats it faces are reasonably foreseeable over this period of time. In making our listing determinations, we have applied a period of 60 years as the general foreseeable future when considering impacts to the species.

In reaching our proposed listing determinations, we reviewed the status review report (Bettridge

et al.

2015) and concluded that it provided the best available scientific and commercial data on the identification of DPSs, abundance and trends, and section 4(a)(1) factors as of the time it was compiled. To make the proposed listing determinations, we used the best available scientific and commercial data on the humpback whale, which are summarized in the status review report and incorporated herein. After considering conservation efforts by States and foreign nations to protect the DPS, as required under section 4(b)(1)(A), we proposed listing determinations based on the statutory definitions of “endangered species” and “threatened species” (80 FR 22304; April 21, 2015).

To make our final listing determinations, we reviewed all information provided during the 90-day public comment period on the proposed rule (which included some studies and reports not initially considered for the proposed rule), information received through the four public hearings, and additional scientific and commercial data that became available since the publication of the proposed rule and the status review report. In most cases, this additional information merely supplemented, and did not differ significantly from, the information presented in the proposed rule. Where new information was received, we have reviewed it and present our evaluation of the information in this final rule. In most cases, the new information received was not so significant that we are relying on it for our final determinations. We received comments and received or obtained new information on the West Indies DPS, the Western North Pacific DPS, the Hawaii DPS, the Mexico DPS, the Central America DPS, the Gabon/Southwest Africa DPS, and the Oceania DPS. After reviewing public comments and new information, we determined that: (1) Some of the data we relied upon for the West Indies DPS abundance estimate is not yet available in final, validated form or fully analyzed by the authors of the relevant study, so for the final rule we are relying solely on data from an earlier survey because it represents the best available scientific and commercial data, but this does not change our initial determination that listing this DPS is not warranted; (2) upon reconsideration of the information we had at the time of our proposal, the extinction risk to the Western North Pacific DPS should be classified as high, not moderate, and therefore, we are listing this DPS as endangered instead of threatened; (3) upon reconsideration of the information we had at the time of our proposal, and in light of updated, lower abundance estimates, the extinction risk to the Mexico DPS should be classified as moderate, not low, and therefore, we are listing this DPS as threatened; (4) upon reconsideration of the information we had at the time of our proposal, and in light of the updated, lower abundance estimate for the Central America DPS and associated uncertainties, the extinction risk to the Central America DPS should be classified as high, not moderate, and therefore, we are listing this DPS as endangered instead of threatened; (5) we have updated the population abundance estimate for the Gabon/Southwest Africa DPS to 7,134, based on more reliable data, but this does not change our initial determination that listing this DPS is not warranted; and (6) the population abundance estimate and the population growth rate of the Oceania DPS are 4,329 and 3 percent per year (previously “unknown”), respectively, which further strengthens our initial determination that listing this DPS is not warranted. With this rule, we finalize our listing determinations, resulting in four DPSs listed as endangered (E), one DPS listed as threatened (T), and nine DPSs not warranted for listing (NW), as described in the following table:

Humpback Whale DPS

Proposed

Final

West Indies

NW

NW.

Cape Verde Islands/Northwest Africa

E

E.

Western North Pacific

T

E.

Hawaii

NW

NW.

Mexico

NW

T.

Central America

T

E.

Brazil

NW

NW.

Gabon/Southwest Africa

NW

NW.

Southeast Africa/Madagascar

NW

NW.

West Australia

NW

NW.

East Australia

NW

NW.

Oceania

NW

NW.

Southeastern Pacific

NW

NW.

Arabian Sea

E

E.

Rationale for Revising the Listing Status of a Listed Species Under the ESA

We have determined that, based on the best available scientific and commercial information, the humpback whale should be recognized under the ESA as 14 individual DPSs. We described the delineations of these 14 DPSs in detail in the 12-month determination and proposed rule (80 FR 22304; April 21, 2015). Comments regarding the delineation are addressed under Summary of Comments below. Based on a comprehensive status review and our analysis of demographic factors and the section 4(a)(1) factors, we have concluded that four of the DPSs qualify as endangered species, one qualifies as a threatened species, and nine do not warrant listing. Our action here is prompted both by our own review, begun in 2009, and the two delisting petitions we received.

Our final determinations are based on the best available scientific and commercial information pertaining to the species throughout its range and within each DPS. In this final rule, we are identifying 14 DPSs, making listing determinations for each DPS, and revising the current listing. We find that the purposes of the ESA would be furthered by managing this wide-ranging species as separate units under the DPS authority, in order to tailor protections of the ESA to those populations that warrant protection. Based on a review of the demographics of these DPSs and the five factors contained in ESA section 4(a)(1), we find that the best available science no longer supports a finding that the species is an “endangered species” throughout its range. We revise the listing for the humpback whale by removing the current species-wide listing and in its place listing four DPSs as endangered and one DPS as threatened. Nine DPSs are not being listed because their current status does not warrant listing. Because these DPSs are not currently listed as separate entities, we are revising and replacing the existing listing of the species with separate listings for those DPSs that warrant classification as threatened or

endangered under authority of sections 4(a)(1) and 4(c)(1) of the ESA, rather than “delisting” those DPSs that do not warrant such classification under our regulations (50 CFR 424.11(d)). However, the effect of our final action is that the protections of the ESA no longer apply to these nine DPSs. We note that we have previously reclassified a species into constituent populations (

e.g.,

identified western and eastern populations of the gray whale (

Eschrichtius robustus

) and revised the listing to remove one population (the eastern one) from the endangered species list (59 FR 31094; June 16, 1994)).

The ESA gives us authority to make these listing determinations and to revise the lists of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether “any species,” which is expressly defined to include species, subspecies, and DPSs, is endangered or threatened based on certain factors. Review of the status of a species may be commenced at any time, either on our own initiative through a status review at any time, or in connection with a “5-year” review under section 4(c)(2), or in response to a petition. A DPS is not a scientifically recognized entity, but rather one that is created under the language of the ESA and effectuated through our 1996 DPS Policy. Because recognition of DPSs is not mandatory, we have some inherent discretion to determine whether a species-level listing should be reclassified into DPSs and what boundaries should be recognized for each DPS. At the conclusion of the listing review process, ESA section 4(c)(1) gives us authority to update the lists of endangered species and threatened species to conform to our most recent determinations. This can include revising the lists to remove a species from the lists or reclassifying the listed entity.

Neither the ESA nor our regulations explicitly prescribe the process we should follow where the best available scientific and commercial information indicates that the listing of a taxonomic species should be updated and revised into listings of constituent DPSs. To the extent it may be said that the statute is ambiguous as to precisely how the updated listings should replace the original listing in such circumstances, we provide our interpretation of the statutory scheme. The purposes of the statute are furthered in certain situations where the agency has determined that it is appropriate to revise a rangewide listing in order to ensure that the current lists of endangered and threatened species comport with the best available scientific and commercial information. For example, updating a listing may further the statute's purpose of recognizing when the status of a listed species has improved to the point that fewer protections are needed under the ESA, allowing for appropriately tailored management for the populations that do not warrant listing and for those remaining populations that do. Where a species, subspecies, or DPS no longer needs protection of the ESA, removing those protections may free resources that can be devoted to the protection of other species. Conversely, disaggregating a species listing into DPSs can also sometimes lead to greater protections if one or more constituent DPSs qualify for reclassification to endangered.

There is no practicable alternative to simultaneously recognizing the newly identified DPSs and assigning them the various statuses of threatened, endangered, or not warranted to replace the original taxonomic species listing. It would be nonsensical and contrary to the statute's purposes and the best available science requirement to attempt to first separately list all the constituent DPSs; the best available scientific and commercial information would not support listing all of the DPSs now in order to delist some of them subsequently. Nor would it make sense to attempt to first “delist” the species-level listing in order to then list some of the constituent DPSs. Where multiple DPSs qualify for listing as endangered or threatened, it would inherently thwart the statute's purposes to remove protections of the ESA from all members of the species even temporarily. The approach we have taken in this final rule ensures a smooth transition from the former taxonomic species listing of endangered to today's listing of certain specified DPSs: Four as endangered and one as threatened (and nine as not-warranted).

We will continue to monitor the status of the entire range of the humpback whale. For any listed DPSs, monitoring is as a matter of course, pursuant to the obligation to periodically review the status of these species (ESA section 4(c)(2)). In addition, we will undertake monitoring of the DPSs that are not listed as a result of their improved status (consistent with ESA section 4(g)).

Summary of Comments

On April 21, 2015, we solicited comments during a 90-day public comment period from all interested parties including the public, other concerned governments and agencies, Indian tribal governments, Alaska Native tribal governments or organizations, the scientific community, industry, and any other interested parties on the proposed rule (80 FR 22304). Specifically, we requested information regarding:

(1) The identification of 3 subspecies of humpback whale composed of 14 DPSs;

(2) The current population status of identified humpback whale DPSs;

(3) Biological or other information regarding the threats to the identified humpback whale DPSs;

(4) Information on the effectiveness of ongoing and planned humpback whale conservation efforts by countries, states, or local entities;

(5) Activities that could result in a violation of section 9(a)(1) of the ESA if such prohibitions are applied to the Western North Pacific and Central America DPSs;

(6) Whether any DPS of the humpback whale that is not listed under the ESA in a final rule would automatically lose depleted status under the Marine Mammal Protection Act (MMPA), or, if not, what analysis and process is required by the MMPA before a change in depleted status may occur. We sought comments regarding different options for construing the relevant provisions of these statutes in harmony;

(7) Whether approach regulations should be promulgated under the MMPA for the protection of the Hawaii DPS of the humpback whale because if the rule became final as proposed, that DPS would no longer be listed under the ESA, or whether current protections in effect in the Hawaiian Islands Humpback Whale National Marine Sanctuary (at 15 CFR 922.184) are sufficient for the protection of the species from vessel interactions. We indicated that commenters should consider the impact of the proposal by NOAA's Office of National Marine Sanctuaries to expand the sanctuary boundaries and strengthen the approach regulations (80 FR 16224; March 26, 2015), which has since been withdrawn (81 FR 13303; March 14, 2016);

(8) Whether approach regulations in effect for the protection of humpback whales in Alaska, currently set forth at 50 CFR 224.103(b), should be relocated to Part 223 (which applies to threatened species) for the continuing protection of the Western North Pacific DPS, and whether these regulations should also be set out in 50 CFR part 216 as MMPA regulations for the protection of all humpback whales occurring in that area, in light of the fact that the MMPA

was one of the original authorities cited in promulgating the regulation;

(9) Information related to the designation of critical habitat, including identification of those physical or biological features which are essential to the conservation of the Western North Pacific and Central America DPSs of humpback whale and which may require special management consideration or protection;

(10) Economic, national security, and other relevant impacts from the designation of critical habitat for the Western North Pacific and Central America DPSs of humpback whale; and

(11) Research and other activities that would be important to include in post-delisting monitoring plans for the West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs.

We received 225 comment letters on the proposed rule. One of the commenters attached a form letter that was signed by 13,279 members, as well as 539 letters that were modified versions of the same form letter. Another commenter sent a letter, including signatures from 3,464 U.S. individuals and 4,046 individuals from foreign countries. We also held four public hearings in Honolulu, HI; Juneau, AK; Plymouth, MA; and Virginia Beach, VA, at which 13 members of the public provided testimony.

Summaries of the substantive public comments received, and our responses, are provided below, organized by topic.

Comments on Topics That Apply to Multiple DPSs

Comment 1:

One commenter stated that NMFS initiated an ESA status review of the humpback whale in 2009 and asserted that it has yet to be completed. The commenter added that the findings are likely to shed new light onto the population status of humpback whale DPSs in the North Pacific.

Response:

We initiated an ESA status review in 2009 and completed it in 2015 (Bettridge

et al.

2015). We relied upon the status review report to make our conclusions about the humpback whale DPSs and their status under the ESA. More recent information available since the report's publication and since publication of the proposed rule was considered during development of this final rule. If we become aware of new information at a later date that may affect our understanding of the DPSs' status, we can initiate a new status review. New information can also be evaluated during the 5-year reviews that are required under ESA section 4(c)(2) or presented via a petition at any time.

Comment 2:

One commenter stated that the ESA is only valid within the borders of the United States and that consideration of listing or delisting populations that are not within our borders is meaningless as far as protective status is concerned.

Response:

Section 4 of the ESA requires that we list any species that we determine to be endangered or threatened, whether it occurs within the United States or elsewhere. Demonstrating a need to secure particular protections under the other sections of the ESA, or that such protections will be afforded where the species is found, is not a precondition to listing. While it is true that fewer protections apply under the ESA for foreign species, important protections do apply. All persons subject to the jurisdiction of the United States (including its citizens) must comply with section 9 of the ESA, which, among other things, makes it unlawful to import endangered species into the United States or to export them from the United States, or to “take” endangered species within the territorial sea of the United States or upon the high seas (16 U.S.C. 1538(a)(1)(A)-(C)). These protections may be extended to threatened species through a rule issued under section 4(d). In addition, listing provides important educational benefits.

Comment 3:

One commenter questioned the “significance” criterion of the DPS Policy, asserting that if a population is discrete from other populations, it should qualify as a DPS.

Response:

As noted earlier, the Services published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act in 1996 (61 FR 4722; February 7, 1996). To be considered a DPS, a population must be both discrete from the remainder of the species to which it belongs and significant to the species to which it belongs. The DPS policy states:

If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPS's be used “ * * * sparingly” while encouraging the conservation of genetic diversity. In carrying out this examination, the Services will consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following:

1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon;

2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;

3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Because precise circumstances are likely to vary considerably from case to case, it is not possible to describe prospectively all the classes of information that might bear on the biological and ecological importance of a discrete population segment.

The DPS Policy was adopted following a period of public comment and is the Services' definitive interpretation of “distinct population segments.”

See Northwest Ecosystem Alliance

v.

U.S. Fish and Wildlife Service,

475 F.3d 1136, 1143 (9th Cir. 2007) (holding that the DPS Policy is entitled to deference as a duly promulgated, binding policy). Therefore, discreteness alone is not sufficient for identifying a population as a DPS.

Comment 4:

Several commenters supported identifying DPSs, but recommended that populations in different feeding areas be identified as DPSs separately from breeding population DPSs in order to support species diversity, as is done under the MMPA in some cases. One of these commenters supported our decision to identify DPSs because they agree that humpback whales should not be listed under the ESA as a global species, nor solely as three sub-species. This commenter also understood the rationale for initially focusing on distinct breeding stocks, as well as the mandate to apply DPSs sparingly.

The commenters were nevertheless concerned that the proposed set of DPSs may not be adequate to maintain species diversity in light of humpback whale ecology, suggesting that humpback whales exhibit strong fidelity to feeding grounds as well as breeding grounds. This commenter noted that individuals that interbreed return reliably to their own discrete feeding areas, and these can be widely separated across ocean basins. The commenter asserted that we have previously indicated that if humpback whales were to be extirpated on one North Atlantic feeding ground then that area would not be re-colonized within a management-relevant time frame (Waring

et al.

2000), stating that this rationale was used to redefine the MMPA management unit for stock assessment from the Western North Atlantic to the Gulf of Maine (Waring

et

al.

2000). The commenter strongly agreed with this view and management action and believed that the same rationale applies to the preservation of species range and diversity under the ESA.

Furthermore, the commenter stated, there are significant genetic differences among feeding grounds in both the North Atlantic and the North Pacific (Palsbøll

et al.

2001; Baker

et al.

2013), including among feeding grounds that share a proposed DPS. One example is the “low but significant divergence between all summer foraging grounds . . . as well as between all summer foraging grounds and the samples collected on the breeding grounds in the West Indies” (Palsbøll

et al.

2001). The commenter asserted that such differences are not adequately explained by our knowledge of breeding stocks, and therefore likely not captured by breeding-based DPS units alone. Finally, this commenter noted, there is evidence of cultural transmission of feeding behavior among individuals on at least one feeding ground (Allen

et al.

2013; Weinrich

et al.

1992), and such knowledge cannot be shared across breeding populations due to the segregation of breeding and feeding habitats. For these reasons, this commenter suggested that feeding aggregations warrant individual consideration under the ESA.

Response:

MMPA stocks do not necessarily coincide with DPSs under the ESA. To be identified as a DPS under the ESA, a population must be both discrete from other conspecific populations and significant to the species or subspecies to which it belongs. A population need only be demographically independent from another population to be considered a stock under the MMPA (NMFS 2016). It may be true that humpback whales demonstrate fidelity to their feeding areas, and if a stock in a particular feeding area is extirpated, it may not be repopulated within a management-relevant time period; however, this is not the test under the DPS policy. NMFS held a workshop on

Conservation Units of Managed Fish, Threatened or Endangered Species, and Marine Mammals

in February 2006 to discuss the differences among stocks under the MMPA, fisheries stocks under the Magnuson-Stevens Act, and DPSs under the ESA (NMFS 2008). We concluded that DPSs can encompass multiple MMPA stocks because of the significance criterion of the DPS policy. DPSs can be identified at different hierarchical levels, and we determine the DPS configuration that makes the most sense after evaluating the best available scientific and commercial information and considering what management approach best furthers the purposes of the ESA as concerns that species.

Comment 5:

One commenter recommended that we identify demographically independent populations as DPSs in the Southern Hemisphere because this has implications for candidacy for “delisting.” The commenter asserted that the proposed rule omitted a number of DPSs that meet the DPS policy criterion of “discreteness.” Such omissions, they asserted, have further implications for estimations of abundance, status, threats, and possibly extinction risk, if a DPS includes a number of demographically independent units. The commenter cited relatively recent studies (Barendse

et al.

2011; Carvalho

et al.

2014; Elwen

et al.

2014; Ersts

et al.

2011; Fossette

et al.

2014; Kershaw 2015; Rosenbaum

et al.

2014; Van Waerebeek

et al.

2013) indicating statistically significant differences between substocks within International Whaling Commission (IWC) stocks B and C (equivalent to the Gabon/Southwest Africa DPS and the Southeast Africa/Madagascar DPS). The commenter also recommended that the significance of F

st

values (measure of genetic differentiation among groups) rather than the magnitude of these values be considered in delineating DPSs.

Another commenter asserted that NMFS' proposed designation of the East Australia DPS and Oceania DPS uses a different boundary between two breeding stocks (designated E and F by the IWC) than the boundary used by the IWC. This commenter stated that NMFS' proposal is therefore arbitrary and capricious. The commenter suggests that this boundary may or may not be adequately protective of animals using the Southern Hemisphere breeding areas east of the coast of Australia, which appear to have a mixing of a fairly robust stock with smaller and more fragile stocks. The commenter pointed to one publication (Garrigue

et al.,

undated), not cited by NMFS, that discusses the “known connections between eastern Australia and the westerly component of Oceania (New Caledonia, Tonga and New Zealand).” Clearly, this commenter asserted, some of these East Australia animals are mixing with breeding stocks included in the Oceania DPS. This commenter added that there has also been a documented interchange between humpbacks in New Caledonia and Eastern Australia at the same rate of exchange seen between New Caledonia and “the rest of” Oceania (

i.e.,

Vanuatu and Tonga) (Garrigue

et al.

2011).

Response:

We appreciate the citations for studies not included in the status review report or in the proposed rule. Some of these papers were published after the BRT had substantially completed drafting its status review report. We have carefully reviewed each publication, and all available information has now been considered for this final rule. While the substocks identified by the commenters represent demographically independent populations (as identified by the IWC), they do not meet the criteria of our DPS Policy (please see response to Comment 3). Criteria in the DPS policy indicate a population must be discrete from other conspecific populations

and significant

to the taxon to which it belongs. Our DPS determinations are case specific; we do not rely on a particular F

st

value to indicate that populations are discrete from each other. Genetic differences among populations may be an indication of discreteness, but not necessarily an indication of significance. The BRT identified 15 humpback whale DPSs, and, as we explained in the proposed rule, we agreed with its conclusions in all cases but one (we combined two of the populations the BRT identified as separate into one DPS; please see response to Comment 43).

In the case of the East Australia and Oceania DPSs, the BRT reviewed the data and made a modification based on the best available data, as the ESA requires. We are aware that there are migrants between these DPSs. The DPS Policy criteria do not require complete separation between populations. In discussing the DPS configuration of Southern Hemisphere humpback whale populations, the BRT stated, “. . . significant differentiation was present among major breeding areas, and the estimated number of migrants/generation among areas was small compared to the estimated sizes of the populations” (Bettridge

et al.

2015 at 24). The BRT interpreted the interchange between humpback whales in eastern Australia and New Caledonia as evidence that the whales share a migration corridor: “Breeding population in New Caledonia and east Australia are separate but some overlap between the populations occurs: some whales bound for New Caledonia use the same migratory pathways as some whales headed past east Australia” (Bettridge

et al.

2015 at 25). The Garrigue

et al.

(2011) study cited by the commenter discusses only 7 matches between Eastern Australia and Oceania, which is a small number. Similar

movements occur between the Hawaii and Mexico DPSs.

Further, the possibility that a population could be a candidate for “delisting” if it were identified as a DPS is not one of the DPS policy criteria and is not otherwise an appropriate consideration. The ESA requires that we base our listing determinations solely on the best available scientific and commercial data. In conclusion, we do not agree with the commenters that the Gabon/Southwest Africa DPS, the Southeast Africa/Madagascar DPS, East Australia DPS, or Oceania DPS should be further divided into smaller DPSs at this time.

Comment 6:

One commenter stated that the ESA should be faithful to its name, and afford protection to taxonomic “species.” Specifically, the commenter indicated that dividing the species into populations does not recognize the biological validity of a species concept.

Response:

The ESA provides for identifying and listing different populations separately. As originally enacted, the statute defined “species” to include—in addition to taxonomic species—subspecies and “any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.” In 1978, the ESA was amended to replace that language with the current language regarding “distinct population segments” (DPSs) in the definition of “species” (Pub. L. 95-632 (1978)). Congress instructed us to exercise this authority with regard to DPSs “. . . sparingly and only when the biological evidence indicates that such action is warranted” (S. Rep. No. 96-151 (1979)). In 1996 the Services published the DPS Policy to define this term. Under the DPS Policy, if a population is both discrete from other conspecific populations and significant to the taxon to which it belongs, it is considered a DPS, and therefore, is a “species” under the ESA.

For humpback whales, we found that the purposes of the ESA would be furthered by managing this wide-ranging species as separate units under the DPS authority, in order to tailor protections of the ESA to those populations that warrant protection. Please see our response to Comment 3 for more details on the DPS Policy.

Comment 7:

Several commenters stated that increasing abundance does not equate to full recovery, and that it is premature to delist any DPSs. One of these commenters suggested that the ESA does not allow us to identify DPSs for the purpose of delisting, citing the District of Columbia District Court in

Humane Society

v.

Jewell,

“the creation or initial designation of a DPS operates as a one-way ratchet to provide ESA protections to the covered vertebrates” (

Humane Society of the United States

v.

Jewell,

Case 1:13-cv-00186-BAH (D.D.C. Dec. 19, 2014). This commenter also cited

Friends of the Wild Swan

v.

U.S. Fish and Wildlife Service,

12 F. Supp. 2d 1121, 1133 (D. Or. 1997), and

Defenders of Wildlife

v.

Norton,

239 F Supp. 2d 9, 2 (D.D.C. 2002). They suggested that Federal courts have come to the same conclusion (quoting the

Friends of the Wild Swan

decision): “As USFWS's own population segment policy acknowledges, listing of population segments is a proactive measure to prevent the need for listing a species over a larger range—not a tactic for subdividing a larger population that USFWS has already determined, on the same information, warrants listing throughout a larger range.” The commenter also stated that a DPS cannot be delisted until after it is first designated and after the mandatory recovery planning process is completed for that particular DPS and that to do otherwise would shortcut the process designed to ensure public comment and peer review. Finally, this commenter asserted that NMFS cannot conclude in a “5-year review” that a DPS can be simultaneously designated and delisted because this practice conflicts with the plain meaning and statutory requirements of section 4(c) of the ESA. This commenter asserted that we apparently recognized the lack of legal authority for our decision, so we claimed that we were not designating DPSs to delist them, but rather dividing the currently listed global population into 14 separate DPSs, downlisting two of those DPSs, and not proposing to list ten of those DPSs. This commenter further asserted that semantics cannot hide our actions, which simultaneously designate previously unlisted DPSs and strips the majority of those DPSs of all their ESA protections.

Response:

We must base our listing determinations solely on the best available scientific and commercial data, after considering ongoing conservation efforts. Increasing abundance is one key indication that a species no longer warrants listing (

i.e.,

is not an “endangered species” or a “threatened species”), but it is not the only factor we considered, as we explained in our proposed rule (80 FR 22304; April 21, 2015 at 22316-22317). Rather, we have considered the factors under section 4(a)(1) in conjunction with the species' current demographic information. Further, it is important to understand the function of the status review report prepared by the BRT as it relates to our listing determinations. Convening a BRT to compile the best available information about the species' status is an optional process that helps inform, and does not supersede, the agency's listing determinations. The BRT does not make decisions in its report. We, NMFS, take into consideration the information provided by the BRT in the status review report, but must also independently evaluate that information in light of all factors that govern listing. We thus evaluated the information in the status review report and other information that became available to us and, after considering ongoing conservation efforts, we developed our listing determinations.

With regard to our approach to identifying DPSs, see

Rationale for Revising the Listing Status of a Species Under the ESA

above. As we explained in the proposed rule and reaffirm here, we have developed a rational approach that is consistent with both the statutory framework and our obligation to ensure that only those species that actually qualify for the protections of the ESA receive its protections. The commenter's suggested approach of first listing individual DPSs is untenable for the reasons we explained in the proposed rule and above: Where it is clear by direct application of the 4(a)(1) factors that a DPS does not presently qualify for listing, we have no authority to list it separately. Thus it is simply illogical to suggest we must list such a DPS in order to delist it. By evaluating the species comprehensively throughout its range and assigning listing status to each and every DPS, we have taken an approach that best fits the statutory framework and fulfills our obligation to adjust the original listing to reflect the species' actual circumstances. This approach differs significantly from that reviewed in

Humane Society of the United States (HSUS)

v.

Jewell,

76 F. Supp. 3d 69 (D.D.C. 2014) (Western Great Lakes gray wolf),

appeal docketed,

No. 15-5041 (D.C. Cir. Feb. 19, 2015).

Further, we note that the DPS Policy does not set forth an interpretation of what procedures should be followed in reclassifying a species-wide listing into DPSs. However, the policy states that the policy is adopted “for the purposes of listing,

delisting, and reclassifying

vertebrates . . . .” 61 FR 4722 (emphasis added). Thus, it does not provide support for the view that the DPS authority may only be used to recognize and list populations. We thus respectfully disagree with characterizing the

Friends of the Wild Swan

case to

suggest that the Services have no authority to consider replacing existing species-wide listings with DPS listings. We note that the facts here are not analogous to the agency action reviewed in that case, which involved a petition to list where FWS had initially concluded that listing of the entire species of bull trout was “warranted but precluded” but then, in a revised decision just a few years later, shifted to considering listing of individual DPSs without adequately explaining the basis for the shift in approach. Here, we have extensively explained that after more than 40 years of listing under the ESA, the scientific understanding of the population structure of humpback whales, as well as the variations in the degree of threats and rates of rebound, have reached the point that there is now a scientific basis to identify DPSs, and that listing each DPS at the appropriate level furthers the purposes of conservation management under the ESA. It is eminently reasonable that, in light of this more developed understanding, the agency has discretion to manage a population of 10,000 individuals differently than it does a population of less than 100 individuals.

To the extent this action may be said to constitute a delisting for the nine DPSs that will not be listed, it is consistent with our regulations at 50 CFR 424.11(d) because we would be delisting these DPSs on “the basis of recovery” (§ 424.11(d)(2)). As that phrase is used in the regulations, it means that “the best scientific and commercial data available indicate that [the species] is no longer endangered or threatened” (§ 424.11(d)(2)). We have determined, after application of the section 4(a)(1) factors, that some of the DPSs do not warrant listing—therefore, we find that they are no longer endangered or threatened. Delisting determinations are to be based on consideration of the same factors as listing determinations (50 CFR 424.11(b), (c)). The Services may directly apply the section 4(a)(1) factors at any time (not just in the context of a “5-year review”) to determine whether a species continues to warrant protection under the ESA and are not bound to apply recovery criteria developed in a recovery plan. This is discussed further in response to the next comment.

Comment 8:

Some commenters raised the issue of the intersection of this process with recovery planning. One commenter stated that on pages 59-60 (80 FR 22304; April 21, 2015 at 22317), our proposed rule explains that the original benchmarks for recovery established in the U.S. Final Recovery Plan for humpback whales (NMFS 1991) (

i.e.,

for populations to achieve 60 percent of pre-whaling abundance) were not prioritized in our status review. This commenter stated that data on progress toward meeting the Recovery Plan abundance goal are now available for the proposed DPSs in the Southern Hemisphere, as the result of a Comprehensive Assessment undertaken by the Scientific Committee of the IWC (IWC 2015). Although a similar effort for the North Atlantic produced ambiguous results (IWC 2001; IWC 2002), the commenter argues that this was likely due to the same uncertainties about stock structure and population parameters that are a potential concern in our status review. For the North Pacific, the commenter notes that there are now more data available on whaling catches (

e.g.,

Ivashchenko

et al.

2013) as well as population size, structure, and trend (Baker

et al.

2013; Barlow

et al.

2011). The commenter recommended that we propose that the IWC undertake an assessment of the recovery status of stocks in that ocean.

Response:

As we have explained in the proposed rule, it is clear that a recovery plan represents one potential pathway to improving the status of the populations addressed in the plan, but does not establish a binding or the only pathway for determining when a species no longer qualifies for protection under the ESA. The criteria set forth in a recovery plan are non-binding proxies for the section 4(a)(1) factors, which are the governing considerations that must be applied in any determination regarding the listing status of a species. The Services (as the designees of the Secretaries of Commerce and of the Interior) retain authority to directly apply the section 4(a)(1) factors at any time to determine whether a species continues to warrant protection under the ESA. The Services are, thus, not bound to apply recovery criteria developed in a recovery plan (

Friends of Blackwater

v.

Salazar,

691 F.3d 428 (D.C. Cir. 2012)). This is particularly true where adequate data do not exist to determine if the criteria are met, as is the case here. As we discuss below, we find that it is not possible on the basis of available information to determine if the overall targets or interim goals of the plan for those populations the recovery plan focused on are met. Further, we find that even if the data were available they would not necessarily demonstrate that the relevant DPSs should or should not continue to be listed.

At the outset, one must note that the 1991 Recovery Plan did not address all populations of humpback whale; at the time the humpback was listed globally with no recognized DPSs. The plan focused only on those populations that occur in the North Atlantic and North Pacific. The relevant DPSs implicated by the plan are: West Indies, Cape Verde Islands/Northwest Africa, Western North Pacific, Hawaii, Mexico, and Central America DPSs. Thus the plan simply would not apply to the majority of the DPSs we now identify.

With regard to using the original benchmark for recovery (populations achieving 60 percent of pre-whaling abundance), where available, estimates of historical abundance can provide useful context for setting recovery goals and are likely to be indicative of abundance levels associated with low extinction risk. However, populations may also be at low risk of extinction at abundance levels below historical levels, and accurate estimates of historical abundance are not essential for evaluating extinction risk. In the case of humpback whales, the 1991 recovery plan noted that estimates of historical abundance were highly uncertain and therefore specific numerical targets based on those goals were not provided in the plan. That situation remains true today, despite additional efforts to summarize historical abundance. Because of this uncertainty and because a comparison of current to historical abundance is not necessary for an evaluation of extinction risk, the BRT elected to focus its extinction risk analysis primarily on current abundance and trends relative to benchmarks associated with low risk (See section III/C of Bettridge

et al.,

2015).

One commenter suggested that we should be required to develop a recovery plan particular to each DPS in order to preserve opportunities for public comment and peer review. The development of recovery plans under section 4(f) of the ESA is a non-regulatory process that nevertheless includes receiving and considering public comment. The Services solicit expert input and peer review of information used in developing recovery plans (

See

“Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities.” 59 FR 34270 (July 1, 1994)). The comment does not cast doubt on our approach here. The ESA does not require that a recovery plan must be developed before a determination can be made that a species no longer qualifies for protection under section 4(a)(1). Moreover, an opportunity for public comment and peer review of the information underlying our

determinations

has been

made available in connection with our proposed listing rule.

With regard to the recommendation that we propose that the IWC undertake an assessment of the recovery status of stocks in the North Pacific Ocean, we support any efforts to estimate population abundance of humpback whales. However, recommending that the IWC undertake an assessment of the recovery status of stocks in the North Pacific is beyond the scope of this action. The ESA requires that we base our determinations on the best

available

scientific and commercial information. This standard does not require conduct of new studies, and because we have sufficient data to support our proposed determinations, there is no reason for us to defer implementing those decisions until additional information becomes available. If additional information becomes available at a later time that the commenter believes should affect our determinations, a petition for consideration of the information could be filed. In addition, we will continue to monitor all DPSs (those that will not be listed will be monitored under the Monitoring Plan that we are issuing today (see Monitoring Plan section below), and the listed DPSs are reviewed periodically through the 5-year review mechanism).

Comment 9:

Several commenters stated that population numbers of humpback whales were much higher historically, and humpback whales will not be recovered until they reach pre-whaling numbers (

i.e.,

historical abundance, or carrying capacity), and they should remain listed as endangered. One commenter argued that without an agreed upon and established historical population baseline, it is impossible to determine if humpback whales in the North Pacific qualify for delisting. In addition, the commenter noted that some geographic areas where humpback whales used to be observed do not appear to have been recolonized (Gregr

et al.,

2000). The commenter stated that Fleming and Jackson (2011) concluded that, despite observed positive population trends over the past decade, the California-Oregon population likely remains well below pre-exploitation size.

Response:

The suggestion that humpback whales must remain listed until they reach pre-whaling numbers is inconsistent with the relevant legal standards under the ESA. A listing determination may be made at any time by directly applying the section 4(a)(1) factors (please see our response to Comment 8). Whether a species qualifies for listing under the ESA depends on whether the species is in danger of extinction or likely to become so within the foreseeable future as a result of one or more of the factors described in section 4(a)(1) (See 16 U.S.C. 1533(a)(1)). If a species is viable at its current population levels into the foreseeable future, it is irrelevant whether that population level is or is not close to its historical levels.

Recovery under the ESA does not mean a species has attained its historical abundance. It simply means that a species is no longer in danger of extinction throughout all or a significant portion of its range or likely to become so within the foreseeable future.

As we stated under

Rationale for Revising the Listing Status under the ESA

and in our response to Comment 8, to the extent that our action may be found to constitute a delisting for the nine DPSs not proposed for listing under the ESA, it is consistent with 50 CFR 424.11(d) because we would be delisting these DPSs on “the basis of recovery” (§ 424.11(d)(2)). As discussed in the proposed rule (80 FR 22304; April 21, 2015), we initially determined, after evaluating abundance and trend information, the ESA section 4(a)(1) factors, and ongoing conservation efforts, that ten humpback whale DPSs did not warrant listing; therefore, we found that they were not endangered or threatened. The Services have authority to apply ESA section 4(a)(1) factors at any time, and we now finalize our determination that nine of the DPSs do not warrant listing.

Comment 10:

Several commenters noted that NMFS acknowledges that surveys of humpback whales have not spanned 20 years since issuance of the 1991 recovery plan and data are not available to evaluate the status of humpback whale populations against these goals. Therefore, one commenter added, the BRT focused its biological risk analysis primarily on recent abundance trends and whether absolute abundance was sufficient for biological viability. This commenter asserted that there are a number of populations for which there are 20 years of data against which to measure growth and, as such, it is inappropriate to disregard the recovery plan.

The commenter also stated that NMFS references the 3.5 percent population growth rate from the recovery plan for some southern ocean DPSs, though the plan focused only on the North Pacific and North Atlantic populations. This commenter also suggested that there are 20 years of data indicating that the West Indies DPS has not met recovery plan targets and the agency has instead proposed to entirely remove the protections of the ESA. One of the other commenters noted that it is obvious that in the past 20 years, the North Pacific humpback whale population, on an ocean-basin scale, has achieved the interim goal of doubling population size. Another commenter stated that, given that we initiated the ESA status review process just 2 years prior to the two-decade threshold, the commenter believes that it would still be worth evaluating progress toward that management goal of doubling the population within 20 years.

Response:

A recovery plan is not binding on the Services and does not represent the only path toward a determination that a species no longer warrants protection under the ESA (please see our response to Comment 8). While estimated population growth rate has been calculated for six of the 14 DPSs (but only two of the DPSs in the North Pacific and North Atlantic, which was the focus of the 1991 Recovery Plan) based on data since the Recovery Plan was issued, we do not think the available data allow directly evaluating whether the Recovery Plan criteria have been met. The plan was a forward-looking document that specified that the doubling of the population size was to be over a 20-year period from that point in time (“within 20 years”); it would not make sense to evaluate progress toward a doubled population using data collected before the plan was even developed. As we stated in our proposed rule, surveys from which abundance estimates could be estimated in order to estimate population growth rate were not separated by 20 years or conducted continuously over that period. To achieve a doubling of the population would require a 3.5 percent average annual growth rate to occur over the course of 20 years; if the trend is only documented for less than 20 years, this does not establish that the population is on track to doubling.

Further, the BRT concluded (personal communication, Paul Wade, NMFS, Northwest Fisheries Science Center, BRT member), and we agree, that the Recovery Plan goal of doubling the population within 20 years is not an appropriate proxy for applying the section 4(a)(1) factors in the context of current abundance for evaluating extinction risk. One reason this metric is not an adequate proxy for applying the section 4(a)(1) factors is that if a population approaches carrying capacity (K), the growth rate will be expected to decrease. A population could have recovered to K, but this would only be known if the entire 20-year period was documented, including the early time period with the faster

growth rate. This is why the BRT decided to rely on absolute population size as indicating the relative extinction risk of each DPS due to small population size alone, with trend information as supplemental.

We referenced the 3.5 percent population growth rate for some of the DPSs in the Southern Hemisphere, even though the 1991 recovery plan that recommended an interim goal of doubling the population size (which translates to a 3.5 percent average annual population growth rate) focused on humpback whales in the North Pacific and North Atlantic. However, we did not measure population growth rate against that 3.5 percent target; we included it only as a point of reference as part of our summary of the best available scientific and commercial information. The BRT and we evaluated whether growth rates were increasing, stable, or decreasing as part of the extinction risk analysis, not whether they were greater than or equal to 3.5 percent. To be clear, then, whether a specific DPS' growth trend was at or above the interim recovery goals set out for certain populations in the 1991 Recovery Plan did not play a role in our determinations.

Comment 11:

The State of Washington indicated that individuals of the Mexico DPS comprise the majority of humpback whales feeding off Washington. A threatened status for the Central America DPS will encourage NMFS and others to continue efforts to mitigate threats off the west coast. Another commenter expressed concern that creation of the DPS construct complicates management and dilutes the effectiveness of any plan as a species saving effort. Another commenter stated that the status review report did not include information that allows understanding of the proportion of each stock/DPS along the eastern Pacific that uses the North American feeding areas (

i.e.,

from California through the Aleutians) such that takes might be assigned proportionately to a stock on the basis of their proportionate use of the area as NMFS has done in its management of lethal takes of mixed species of pilot whales in the Atlantic.

This same commenter stated that, even if NMFS determines that the Mexico and Hawaii DPSs are recovered, NMFS must retain ESA protections for these DPSs because of similarity of appearance. This commenter noted that mixing of breeding stocks in a single feeding area complicates any threat analysis and will confound determination of stock identity when anthropogenic mortalities that occur in a mixed feeding area need to be attributed to the appropriate stock. This commenter pointed to NMFS' treatment of progeny of naturally spawned adults of west coast salmon (all progeny are protected as “naturally spawned” because offspring of hatchery-born salmon adults cannot easily be distinguished from their wild counterparts (70 FR 37,160; June 28, 2005, at 37,166)) to show how NMFS ensures appropriate levels of protection for listed species where there is overlap between listed and non-listed populations.

The commenter also attempted to draw support for protecting all DPSs from the provisions of the statute and regulations governing recognition of experimental populations, citing: (1) 16 U.S.C. 1539(j)(1) and 50 CFR 17.80(a) (“where part of an experimental population overlaps with a natural population of the same species . . . specimens of the experimental populations will not be recognized as such while in the area of overlap”; (2)

United States

v.

McKittrick,

142 F.3d 1170, 1174-75 (9th Cir. 1998) (“When experimental and nonexperimental populations overlap—even if the overlap occurs seasonally—section 10(j) populations lose their experimental status.”); and (3) H.R. Rep. No. 97-567 at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833 (legislative history of section 10(j) stressing that “in the case of the introduction of individuals of a listed fish species into a portion of a stream where the same species already occurs, the introduced specimens would not be treated as an `experimental population' separate from the non-introduced specimens”).

While this commenter believes that delisting or downlisting of any DPS is inappropriate at this time, if a downlisting occurs and NMFS does not retain ESA protections for all DPSs, this commenter recommends that mortality or injury in a feeding area with mixed breeding stocks be attributed to the listed DPS with the most protected status unless it can definitively be determined that it does not belong to that DPS.

Response:

Once a DPS is identified, it is considered a species under the ESA. Listing DPSs separately can complicate management when DPSs of different status mix. In particular, when listed species mix with non-listed species, it is important to ensure that the listed species is protected. We have concluded in this final rule that the Mexico DPS is threatened instead of “not warranted,” and the Central America DPS is endangered instead of threatened (please see the Mexico DPS and Central America DPS sections for our rationale). We are extending the section 9 prohibitions to threatened humpback whales, which at this time includes the Mexico DPS, and these same prohibitions are automatically applied to the endangered Central America DPS. Where humpback whales from different DPSs mix on feeding grounds, such as is the case off the coast of Alaska where the non-listed Hawaii DPS mixes with the listed Western North Pacific and Mexico DPSs, we will continue to work with partners to mitigate threats to all humpback whales, regardless of their ESA listing status, because all whales remain protected under the MMPA. We recognize the need for an approach that will allow us to determine which DPSs have been affected by directed or incidental take or may be affected by Federal actions subject to consultation under section 7. As we have for other species (

e.g.,

Pacific salmon), we will likely use a proportional approach to indicate which DPSs are affected by any takes based upon the best available science of what DPSs are present, depending on location and timing where take occurred. We have not finalized this approach, but it will be fluid and based upon the best available science as it changes with increased understanding.

With regard to the commenter's suggestion that we protect the Hawaii and Mexico DPSs based on similarity of appearance, we disagree that the authority to list based on “similarity of appearance” should be invoked here. The statute affords discretion to extend protections to a non-imperiled species based on similarity of appearance only where all three criteria of ESA section 4(e) are met. Specifically, section 4(e) of the ESA provides that the Secretary “may, by regulation of commerce or taking, and to the extent he deems advisable” treat any species as an endangered species or threatened species even though it is not listed under section 4 of the ESA if he finds that:

(A) Such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this chapter.

16 U.S.C. 1533(e).

This authority allows the Services to treat a species that is not itself imperiled as a listed species for certain purposes

in very limited situations. Criterion A under section 4(e) of the ESA is met for humpback whales because humpback whales from different DPSs are not readily distinguishable in areas where two or more DPSs overlap. Criteria B and C are not met. There is no incentive for people to “take” humpback whales and claim they thought they were taking a different species, because there is no (legal) trade in those products. Therefore, the effect of this substantial difficulty in assigning a humpback whale to a particular DPS does not pose an additional threat to the listed DPS. And finally, treating the unlisted DPS as a listed DPS will not facilitate enforcement of laws against take of humpback whales from a listed DPS. Therefore, we did not propose to protect non-listed DPSs of the humpback whale based on grounds of similarity of appearance to listed DPSs and we do not find a basis to do so in this final rule. However, we note that we changed our listing determination for the Mexico DPS, and, as noted above, we are listing it as a threatened species under the ESA and extending the section 9 prohibitions to the DPS so that it will be protected under the ESA.

Finally, in response to the comments citing to the statutory and regulatory provisions of section 10(j) and related case law, we note that the authority to designate experimental populations is completely separate from making listing determinations under section 4. That authority is designed to allow the Services to introduce or reintroduce species to areas where they do not currently occur. We are not proposing to take such an action here, and there is no basis to conclude that Congress intended the specific provisions relating to the 10(j) authority to apply more broadly. Had Congress intended that result, it could have chosen to do so explicitly, but it did not. Thus the portions of the comments relating to 10(j) are simply not relevant or informative here.

Comment 12:

One commenter noted that humpback whales migrate between the equator and the poles and that, therefore, no population of whales around the globe is entirely protected within the borders of any one country. Regardless of their protected status in the United States, this movement leaves protected animals vulnerable to hunting as they migrate across the borders of whaling countries. Several commenters argued that delisting of any humpback whale populations by the United States will weaken the perception of their protected status, and signal to other countries that the United States approves and encourages hunting humpback whales, particularly in waters beyond the exclusive economic zone (EEZ). Another commenter added that the overlap in ranges of many populations of humpback whales would provide a perfect excuse for whaling nations to hunt protected populations. The commenter indicated there would be no way to prove whalers had violated the protection, as there would be much confusion as to which population they were actually hunting in the overlapping territories. Another commenter asserted that Japan, Norway, Iceland, former Soviet Republics, and others have gained votes and allies on the IWC to open up hunting to the larger baleen whales. The commenter believes that tropical nations, where humpbacks congregate to calf and mate, can be incentivized for votes at the IWC to support hunting of humpbacks in their waters. Many other commenters stated that whaling would start again if humpback whales were no longer protected under the ESA.

Response:

We are confident that whaling will not resume as a result of not including nine humpback whale DPSs on the ESA List of Endangered and Threatened Wildlife. The IWC's commercial whaling moratorium implemented by the IWC in 1986 remains in effect as a needed conservation measure for whale stocks worldwide. We have no indications that the

status quo

will be changed, and thus conclude on the basis of the best available scientific and commercial information that the commercial whaling moratorium will continue to be in effect for the foreseeable future. In addition, the humpback whale is currently an Appendix I species under the Convention for International Trade in Endangered Species of Wild Fauna and Flora (CITES), which restricts international trade and provides an additional layer of protection against resumed whaling. Regarding scientific whaling, there are currently no countries hunting humpback whales for scientific research and we have no information to indicate there are plans to do so in the foreseeable future. Regarding subsistence whaling, we have no reason to believe that the small number of West Indies DPS humpback whales killed for subsistence (see our response to Comment 42) will increase because the DPS is not listed.

Comment 13:

Many commenters asserted that it is premature to remove ESA protections from some humpback whale populations, as the research needs to be updated (

e.g.,

address questions about population abundance, trends and risks), and a precautionary approach should be taken to protecting these iconic animals. One commenter asserted that NMFS seeks to completely delist from the ESA some of the 14 populations it has identified, relying largely on a “speculative” approach using qualitative information that is contrary to the clear mandates of the ESA (“The obvious purpose of the requirement that agencies “use the best scientific and commercial data available” is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise” (

Bennett

v.

Spear,

520 U.S. 154 (1997)). This commenter asserted that we should not rely on qualitative data to strip ESA protections, as “[T]his is highly risk prone and an affront to the “institutionalized caution” Congress embodied in the ESA” (

Tennessee Valley Authority (TVA)

v.

Hill,

437 U.S. 153 (1978)). Several other commenters said that we should use the precautionary principle when there are so many uncertainties in the scientific data (

e.g.,

unknown trends for several DPSs; unknown effects of climate change, contaminants, and harmful algal blooms (HABs); transfer rates of contaminants to calves; chronic, sublethal impacts of contaminants). Another commenter asserted that NMFS' proposed rule was not based on the best available science as NMFS failed to consider a number of scientific reports published after 2011.

Response:

We are required to base our decisions solely on the best available scientific and commercial data, a standard that does not require certainty. The use of qualitative data is appropriate if they are the best available. We have quantitative abundance estimates for each humpback whale DPS, although some of these estimates are associated with large confidence intervals (meaning that there is relatively less certainty as to their accuracy when compared to estimates with small confidence intervals). While we have quantitative trend information for some DPSs, we do not have it for others, though for most we have at least a qualitative estimate. Regardless of whether the data are quantitative or qualitative, we must use our best professional judgment to determine whether a species meets the definition of an “endangered species” or a “threatened species.” When new data become available, we can reinitiate a status review on our own or in response to a petition. New information can also be evaluated during the 5-year reviews that are required under ESA section 4(c)(2).

With regard to whether the “precautionary” approach should be applied and whether that should lead to

retaining the species' current listing status for each DPS, section 4 of the ESA requires that we base listing determinations solely on the best available scientific and commercial data. It is well established that this standard does not require certainty in the data supporting the agency's decision but instead charges NMFS to apply professional judgment to identify significant uncertainties and determine how to proceed in light of them. Moreover, where the fundamental question of whether a species meets the foundational tests for requiring the ESA's protections under section 4(a)(1) is at issue, the context is significantly different from cases arising under other provisions of the ESA, such as section 7 consultations, where legislative history and case law indicate that significant uncertainties should be resolved against action agencies. Thus, the commenter's citation to

TVA

v.

Hill

(437 U.S. 153 (1978)) is not pertinent. Congress vested NMFS “with discretion to make listing decisions based on consideration of the relevant statutory factors using the best scientific information available” (

Trout Unlimited

v.

Lohn,

645 F. Supp. 2d 929, 947 (D. Or. 2007)).

Each of our determinations is supported by the best available scientific and commercial information, and we have evaluated the data for each particular DPS carefully and deliberately. While there are some uncertainties in the data—as there almost always are in every case of scientific information—we have identified the relevant, significant uncertainties, discussed them, and explained our decisions in light of them. Where those uncertainties are particularly significant, we have erred on the side of retaining protections for the DPS (and, in the case of the Western North Pacific, Mexico, and Central America DPSs, have increased the level of protection from that in our proposed rule). Indeed, one commenter expressed the opposite concern from that raised by this commenter, accusing NMFS of “abusing” the precautionary approach by listing the Western North Pacific DPS (see response to Comment 44).

In response to the comment that the proposed rule did not rely on the best available information because we had not yet considered certain scientific papers published after 2011, this comment fails to take into account the important information-gathering and consideration that takes place during the public comment period as well as the iterative nature of agency decisionmaking. In all scientific decisionmaking, there must come a point in time where the search for new information pauses while the information already possessed is analyzed and reviewed. It would be unreasonable to expect that the BRT was searching the literature during the entire time between initiation of the status review and issuance of the final status review report. The BRT was presented with a draft compilation of available literature when it first convened, and the team members were tasked to update that compilation at a point prior to completion of the draft report. Once the BRT had substantially completed its draft report, NMFS reviewed the BRT findings and developed the proposed rule. Our proposed rule invited comment and submission of any additional, relevant information for consideration in development of the final rule. This iterative process ensures that all available information is considered for the final rule.

Further, the Monitoring Plan that we are implementing for those DPSs that do not warrant listing helps ensure these DPSs are managed appropriately in light of all threats, including those that may worsen. For any DPSs that are listed, monitoring is as a matter of course, pursuant to the obligation to periodically review the status of these species (ESA section 4(c)(2)). Finally, though not directly relevant to our listing determinations, we note that the non-listed DPSs will continue to be protected under the MMPA.

Comment 14:

Many commenters requested that we keep all humpback whale populations listed under the ESA, as MMPA protection may not be effective if “delisting” is perceived as “no longer protected.” These commenters said that population numbers may have increased, but they may not stay at a safe population size because of noise, water pollution, climate change, vessel collisions, and habitat destruction.

Response:

Regardless of whether they are also listed under the ESA, marine mammals are protected under the MMPA. The MMPA's provisions include prohibitions on take in U.S. waters and by U.S. citizens on the high seas. We based our listing determinations on the best available data, including an evaluation of available information on threat levels. Where we are not listing a DPS as threatened or endangered, it is because we have determined that, based on the best available data, the DPS is not in danger of extinction throughout all or a significant portion of its range or likely to become so within the foreseeable future. We discuss the related issue of whether the previously listed populations retain “depleted” status under the MMPA, below.

Comment 15:

Canada's Department of Fisheries and Oceans (DFO) commented that, in 2003, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the western North Atlantic humpback whale population as “not at risk,” which is consistent with NMFS' proposed designation for the West Indies DPS from which the Canadian western North Atlantic population derives. In 2003, COSEWIC assessed the North Pacific humpback whale population as “threatened,” and in 2005 the population was listed as such under Canada's Species at Risk Act (SARA). COSEWIC reassessed this population as “special concern” in 2011 and confirmed the “special concern” status of this population in 2013. In response to this “special concern” assessment, the North Pacific humpback whale population is being considered for reclassification as “special concern” under SARA. Humpback whales from the proposed Hawaii, Mexico, and Central America DPSs contribute to the population that frequents Canadian waters. The proposed “not at risk” status for the Hawaii and Mexico DPSs is lower than the current (threatened) or potential (special concern) SARA status of the Canadian North Pacific humpback whale population. Therefore, the proposed “not at risk” designation for the Hawaii and Mexico DPSs would not offer the species the current or potential level of protection in Canada. The proposed status of “threatened” for the Central America DPS aligns with the North Pacific Humpback Whale current designation as “threatened” under SARA.

Response:

We appreciate the detailed information provided by Canada's DFO. While it may appear that the status categories under the ESA (“endangered,” “threatened,” “candidate,” and “not warranted”) correlate to those under the SARA (“endangered,” “threatened,” “special concern,” and “not at risk”), the ESA and SARA use different criteria to assess the status of species. Therefore, a species listed as “threatened” under the ESA might not be at the same level of extinction risk as one listed as “threatened” under SARA. However, we recognize that the Hawaii DPS will not be protected under the ESA in U.S. waters or on the high seas (with respect to U.S. citizens) and it will be protected in Canadian waters (until the Canadian North Pacific population is reclassified as “special concern,” if this happens). All humpback whales will continue to receive significant protection from taking under the MMPA in U.S. waters

and by U.S. citizens on the high seas. And while we did not propose to list the Mexico DPS as threatened or endangered and we proposed to list the Central America DPS as threatened, we are now listing the Mexico DPS as threatened and the Central America DPS as endangered (please see the Mexico DPS and Central America DPS sections). Canada's DFO is correct that the Central America DPS will receive essentially the same protections under both the ESA and SARA. The Mexico DPS will, too, because we are extending the section 9 prohibitions to threatened humpback whales.

Comment 16:

Several commenters expressed support for our decision to list the Western North Pacific DPS and Central America DPS (as threatened) and to list the Arabian Sea and Cape Verde Islands/Northwest Africa DPS (as endangered).

Response:

We acknowledge the commenters' support. Please see the Western North Pacific DPS, the Mexico DPS, and the Central America DPS sections for our rationale for listing the Mexico DPS as threatened and for reaching the determination of “endangered” for the Western North Pacific and Central America DPSs.

Comment 17:

One commenter stated that NMFS' proposal is not based on the best available science because it fails to properly define and analyze the risk of extinction in the foreseeable future. The commenter asserted that there are two problems with our approach to weighing extinction risk: (1) Improper use of a 60-year timeframe for risk assessment; and (2) failure to properly apply the chosen 60-year time frame. The commenter stated that, in prior listing decisions and recovery plans for whale species, NMFS consistently uses longer time frames to evaluate extinction risk, generally 100 years. In the case of both North Atlantic and North Pacific right whales, the commenter argued, 100 years was used, and this was based on conclusions from a large whale recovery criteria workshop (Angliss

et al.

2002). The commenter suggested that NMFS provided no explanation or justification for the foreseeable future used in this rulemaking. The commenter suggests that, despite claiming to analyze future impacts, the threats analysis references “current” risks, but contains no analysis of the risk of extinction posed by reasonably foreseeable future impacts. The commenter also suggests that the extinction risk approach improperly “raised the bar” for the threatened category and cites to the unreported decision in

Western Watersheds Project

v.

Foss,

No. CV-04-168, 2005 U.S. Dist. LEXIS 45753, *49 (D. Idaho Aug. 19, 2005) for the proposition that it is inappropriate to evaluate “high risk of extinction” over the “foreseeable future.” The commenter states that this focus on current threats also fails to recognize that, while the definition of a “threatened” species is necessarily forward-looking, so, too, is the definition of an “endangered species.” Simply put, a species “in danger” of extinction is not currently extinct. Rather, it is a species facing a risk of extinction in the future.

Response:

The commenter's suggestion that it is improper to use different time periods for different listing determinations or recovery plans (the latter of which are not binding regulatory documents) misunderstands the nature of the determination of “foreseeable future.” As we explained in the proposed rule and summarized in the introductory paragraphs of this final rule, the concept of the “foreseeable future” must be determined and applied specifically for each species undergoing a status review or listing determination under the ESA in order to consider whether a species is a threatened species.

See, e.g., In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation,

794 F. Supp. 2d 65, 95 (D.D.C. 2011) (“As with the term `likely,' Congress has not defined the term “foreseeable future” under the ESA . . . .”). Instead of using an inflexible quantitative standard, “a `foreseeable future' determination is made on the basis of the agency's reasoned judgment in light of the best available science for the species under consideration.”

id.

In its status review report, the BRT determined that 60 years was the appropriate time period over which it could reasonably predict the humpback whale's responses to threats. We agreed with the BRT's rationale and thus adopted the 60-year period as the “foreseeable future” for this listing determination. Nothing the commenter cites undercuts the basis for the foreseeable future identified for this rulemaking. The 1991 Recovery Plan for the Northern Right Whale (

Eubalaena glacialis

) (NMFS 1991) included several criteria for reclassification from “endangered” to “threatened,” one of which was that the species has less than a 1 percent probability of going extinct in 100 years. Similarly, it included several criteria for delisting, one of which was that the species has less than a 10 percent probability of becoming endangered in 25 years. The timeframes of 100 years and 25 years as used in the large whale recovery criteria workshop referred to by the commenter are part of a population viability analysis (

x

percent chance of extinction in

y

years); they do not refer to the foreseeable future as used under the ESA. As explained above, the “foreseeable future” is generally defined for each species based on how far into the future we may reliably project individual threats as well as the species' response to those threats. Here, for the reasons already explained, 60 years was articulated by both the BRT and NMFS as the appropriate timeframe.

Even if equivalency in “foreseeable future” determinations among species with similar life history traits was required, there is no basis to compare the foreseeable future for humpback whales with any “foreseeable future” for the Cook Inlet beluga whale, North Pacific right whale, and North Atlantic right whale because we did not define foreseeable future periods for any of the latter three species. Our extinction risk analyses for these species concluded that these species were all endangered; thus, we did not need to define foreseeable future for these species; the “foreseeable future” concept is relevant only to consideration of “threatened” status, which is unnecessary where we have determined the species meets the higher standard for “endangered.” The 100-year period the commenter refers to is simply one of two timeframes over which we estimated the risk of extinction for the Cook Inlet beluga whale (the other timeframe was 300 years) in the context of a population viability analysis. Neither we nor the BRT mentioned a 100-year time period in any context in the North Atlantic and North Pacific right whale status reviews, proposed listing rule, or final listing determination. There is no requirement that the same time period used to forecast effects as a matter of scientific modeling must be chosen as the “foreseeable future” for the listing determination for that species. Determining the appropriate “foreseeable future” for a listing decision involves the professional judgment of the resource managers, who must determine at what point it is no longer reasonable to make official predictions about threats and the species' response. Thus, while a particular period may have been chosen to underlie a PVA in order to generate useful information, that same period will not necessarily be equivalent to the foreseeable future adopted for the ultimate listing decision. Indeed, it is not required that the foreseeable future be quantified as a specific number of years at any point for any listing decision.

Recovery criteria remain case-specific. Further, there is no requirement under

the ESA to define extinction risk in quantitative terms; there is “nothing in the text or structure of the statute to compel the conclusion that Congress intended to bind the agency to a particular formula for determining when a species is `in danger of extinction.' ”

In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation,

748 F. Supp. 2d 19, 27 (D.D.C. 2010). Rather, “[t]he overall structure of the ESA suggests that the definition of an endangered species was `intentionally left ambiguous,' ” and “Congress broadly delegated responsibility to the Secretary to determine whether a species is `in danger of extinction' in light of the five statutory listing factors and the best available science for that species.”

Id.

Under the ESA, in order to list a species as threatened, we must conclude that the species is likely to become in danger of extinction throughout all or a significant portion of its range within the foreseeable future. For the humpback whale, the BRT and NMFS defined the foreseeable future as 60 years. The classifications used by the BRT for its extinction risk assessment appropriately maintained the temporal distinction between risk that currently exists and risk that will become manifest within the foreseeable future. Here, the BRT specifically defined the “high risk of extinction” category to measure near-term risk, while the “moderate risk of extinction” category incorporates the foreseeable future (Bettridge

et al.

2015 at 67-68). The commenter is thus flatly incorrect in the suggestion that the BRT or NMFS conflated the threatened category with the endangered category, and the citation to

Western Watersheds Project

v.

Foss

is inapposite.

When we reviewed the BRT's extinction risk conclusions, and then evaluated ongoing conservation efforts as we are required to do, we agreed with the BRT's conclusions. For those DPSs that the BRT determined were at “moderate risk of extinction,” we generally concluded that the DPSs were likely to become endangered over the next 60 years (threatened). For those DPSs that the BRT concluded were at “high risk of extinction,” we generally concluded that the DPSs were in danger of extinction currently (endangered). (However, for this final rule we have applied greater levels of protection than the BRT votes would predict for three DPSs. Please see our rationale for reconsidering our listing determinations for the Western North Pacific (Western North Pacific DPS section), Mexico (Mexico DPS section), and Central America (Central America DPS section) DPSs.) We agree with the commenter that the definitions of “threatened” species and “endangered species” are forward looking (

i.e.,

a species “in danger” of extinction is not currently extinct; rather, it is a species facing a risk of extinction at an undefined point in the future). We did consider that the threats we can reliably predict will act on the species within the foreseeable future.

Comment 18:

One commenter stated that the ESA is enforced in U.S. waters, and that other countries recognize and respect this and may assign statuses under their acts. The commenter asserted that other status classifications, such as the International Union for Conservation of Nature (IUCN), are likely to be removed in response to removing humpback whales from the ESA list.

Response:

The ESA is enforced in U.S. waters and on the high seas for persons subject to U.S. jurisdiction. The ESA requires us to make our determinations in accordance with the best available scientific and commercial information without regard to what other countries might do with regard to conservation status of species under their jurisdiction. With regard to IUCN, species classifications under the ESA and the IUCN Red List are not equivalent. Data standards, criteria used to evaluate species status, and treatment of uncertainty are not considered similarly, and the legal effect is not the same.

Unlike the ESA, the IUCN Red List is not a statute and is not a legally binding or regulatory instrument. It does not include legally binding requirements, prohibitions, or guidance for the protection of threatened (

i.e.,

critically endangered, endangered, or vulnerable) taxa (IUCN 2012). Rather, it provides taxonomic, conservation status, and distribution information on species. The IUCN Red List is based on a system of categories and criteria designed to determine the

relative

risk of extinction (

http://www.iucnredlist.org/about/introduction

), classifying species in one of nine categories, as determined via quantitative criteria, including population size reductions, range reductions, small population size, and quantitative extinction risk. Whether the IUCN removes status classifications as a result of an ESA listing determination is not relevant to the ESA's requirement that we base listing determinations solely on the best available scientific and commercial data.

Having said this, the IUCN classified the humpback whale as “least concern” in 2008.

Comment 19:

Several commenters asserted that we underestimated the risks of oil spills to humpback whales.

Response:

We do not agree that we underestimated the risks of oil spills to humpback whales. We discussed this risk in our proposed rule (80 FR 22304; April 21, 2015 at 22321), concluding that long-term ingestion of pollutants, including oil residues, could affect reproduction, but that data are lacking to determine how oil may fit into this scheme for humpback whales. The effects of oil spills are generally associated with low probabilities of occurrence, and are generally localized in nature. Documented impacts from these activities in the past have been minimal. Therefore, we do not believe that we have underestimated the risks of oil spills, and we have accurately portrayed the effect of oil and gas activities on the status of the species within the foreseeable future.

Comment 20:

One commenter noted that humpback whales off Southern California and Asia are known to have high levels of dichlorodiphenyltrichloroethane, polychlorinated biphenyls, and other persistent organic pollutants (Elfes

et al.

2010).

Response:

We considered Elfes

et al.

(2010), but when this information is combined with all of the other information presented on contaminants in the status review report (Bettridge

et al.

2015 at 41-42), we agreed with the BRT that the severity of this threat was low in all regions, except where lack of data indicated a finding of unknown. Even where the extent of risk is unknown, it is not enough to place any DPS in danger of extinction presently or within the foreseeable future. Regardless, we are listing the Western North Pacific and Central America DPSs as endangered and the Mexico DPS as threatened for other reasons (see the Western North Pacific DPS, Mexico DPS, and Central America DPS sections for our rationale). These are the DPSs that occur off Southern California and Asia.

Comment 21:

One commenter stated that the ESA section 4(a)(1) factors must be addressed before a species can be delisted. For example, the commenter noted, contaminants were given a risk score of “low” or “none” for both the Mexico and Central America DPSs, both of which are acknowledged to feed off the coast of California. However, the commenter continued, the text of the status review report cites data indicating that “contaminant levels have been proposed as a causative factor in lower reproductive rates found among humpback whales off Southern

California.” Another commenter pointed to the increased number of fishing gear entanglements off California, Oregon, and Washington in 2015 as cause for concern for the Mexico and Central America DPSs.

Response:

While it is true that individuals from both the Mexico and Central America DPSs feed off the coast of California, we are not aware of any evidence to indicate that either of the DPSs is being negatively impacted because of lower reproductive rates. We cited data indicating that “contaminant levels have been proposed as a causative factor in lower reproductive rates found among humpback whales off Southern California” (Steiger and Calambokidis 2000), but we also added that, “at present the threshold level for negative effects, and transfer rates to calves, are unknown for humpback whales” and “[t]he health effects of different doses of contaminants are currently unknown for humpback whales (Krahn

et al.

2004c).” While Steiger and Calambokidis (2000) clearly state that contaminants could be one of several possible causes of the observed lower rates of reproduction amongst these whales (which are still increasing, just not as rapidly as other groups), they do not point to contaminants as the primary or sole cause; they actually indicate that mysticetes are thought to have lower exposure to contaminants such as hydrocarbons than pinnipeds and odontocetes. We do not have much information from recent humpback whale strandings that could shed light on either contaminant loads or their possible effects on reproduction. We will continue to monitor the health of humpback whales, whether they are listed under the ESA or not.

Regarding the higher number of whale entanglement reports made in 2015 off California, Oregon, and Washington, this may be attributable to changes in the number and distribution of whales in recent years, and/or changes in the distribution of fishing and other human activities, which are, in part, influenced by environmental conditions. We are working to better understand and predict how all these factors may be impacting whales off the west coast. Broader public awareness may also be contributing to the recent increase in entanglement reports. Increasing awareness about whale entanglements and available reporting mechanisms is a focus of our outreach. We have also been working with trained and authorized responders along the west coast to increase their capacity to respond to entanglement reports and train new responders in reporting and response techniques—additional outreach that may be contributing to the 2015 numbers. However, the fact is that the number of reported fishing gear entanglements have increased, and therefore, we continue to view this threat as posing a moderate risk to the Mexico and Central America DPSs.

Comment 22:

Several commenters stated that prey depletion in terms of competition from fisheries is a significant threat to humpback whales.

Response:

We have no evidence of prey depletion contributing significantly to the extinction risk of any DPS of the humpback whale. It is conceivable that reduction of forage fish could cause shifts in the feeding range of humpback whales to areas with more threats from fishing gear, commercial shipping, or areas not under U.S. jurisdiction. However, we have no information to indicate that the fish species that humpback whales prey upon are reduced in number or will be reduced in number in the foreseeable future to the point where the feeding ranges of humpback whales are changing.

In Alaska, for example, herring are the only forage fish species with a directed fishery, unless we consider juvenile pollock and salmon (the only life stage of these fishes that humpback whales eat), which have fisheries targeting the adults and not the juveniles. Krill are probably the dominant prey item for humpback whales in Alaska, and have no directed harvest. Herring fisheries in Alaska are managed with a fairly conservative guideline harvest rate and a minimum biomass threshold before fishing is permitted. In Prince William Sound, we found that humpback whales were consuming 15-20 percent of the pre-spawning biomass of herring; this rate is sustainable and roughly what the fishery would take, if the fishery were open. Humpback whales in Prince William Sound appear to be the most herring-focused whales in Alaskan waters based on diet analysis, and likely represent the high end of humpback whale dependency on herring.

The BRT discussed the high level of fishing pressure in the region occupied by the Okinawa/Philippines portion of the Western North Pacific DPS (a small humpback whale population). Although specific information on prey abundance and competition between whales and fisheries is not known in this area, overlap of whales and fisheries has been indicated by the bycatch of humpback whales in set-nets in the area. The BRT determined that competition with fisheries is a medium threat to the Okinawa/Philippines portion of the Western North Pacific DPS (which will be listed as an endangered species), given the high level of fishing and small humpback whale population, and a low or unknown threat for all other DPSs (Bettridge

et al.

2015 at 56).

Comment 23:

Many commenters expressed concern about whale watch vessels approaching humpback whales too closely or at high speeds. One commenter asserted that some of the worst harassment is currently seen within marine sanctuary areas because of lack of enforcement, and that this results in displacement of humpback whales through disturbance, harassment, and the abandonment of areas by the whales. The commenter provided examples of harassment from whale watchers a few miles out of Auke Bay off Juneau, AK, off Maui, HI, and in Stellwagen Bank in MA. This commenter urges us to maintain ESA protections for humpback whales.

Response:

Stellwagen Bank National Marine Sanctuary (SBNMS) is working with NMFS and other sanctuary partners to educate the public, deter harassment, and encourage responsible stewardship among whale watchers in the sanctuary, including through development of whale watching guidelines for Atlantic waters off the northeast United States, implementation of a citizen science program in collaboration with the U.S. Coast Guard auxiliary, and the joint enforcement agreement between NOAA's Office of Law Enforcement (OLE) and the State of Massachusetts.

In addition to establishing regulations that prohibit vessels from approaching within 100 yards of a whale in sanctuary waters, the Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS) has a number of outreach programs designed to increase awareness of humpback whales and to reduce harassment by interactions with ocean users, including ocean awareness and ocean etiquette training that educates both the general public and commercial whale watch operators in the region. HIHWNMS has also convened a standing Sanctuary Interagency Law Enforcement Task Force to coordinate enforcement of the humpback whale approach regulation by state and Federal law enforcement partners. We believe these efforts will help reduce the threat of whale watching and increase enforcement and compliance with whale watching guidelines and vessel approach regulations.

We continue to work with the whale watch industry to ensure that vessels do not approach humpback whales too closely through vessel approach regulations in Hawaii and Alaska, and vessel speed rules in the North Atlantic. In fact, in two separate notices

published elsewhere in today's issue of the

Federal Register

, we are: (1) Promulgating a direct final rule making minor technical corrections to and recodifying the Alaska approach regulations that have been in place in the part of the Code of Federal Regulations addressing endangered marine or anadromous species (50 CFR 224.103(b)) so that they also appear in the part of the Code of Federal Regulations addressing threatened marine and anadromous species (50 CFR 223.214) and the part setting forth MMPA regulations (50 CFR 216.18); and (2) promulgating an interim final rule setting out similar regulations in Hawaii under the MMPA (50 CFR 216.19). In addition, we have implemented a number of responsible viewing programs across the United States to promote precautionary practices on the water. One of these programs, Whale SENSE, works closely with the whale watch industry along the U.S. Atlantic and in Alaska, whereby operators agree to adopt a high standard of stewardship on the water, including limiting speeds and time spent with whales.

Comment 24:

One commenter asserted that we failed to consider the science demonstrating that ocean acidification could profoundly affect the growth and toxicity of phytoplankton associated with harmful algal blooms (known as “red tides”) and the detrimental effects this will have on all humpbacks, particularly the proposed Mexico, Central America, and Hawaii DPSs, and that we failed to adequately consider impacts to their food supply.

Response:

We did consider HABs, and the BRT found, and we agreed, that HABs represented a minor threat to most humpback whale populations. HABs may be increasing in Alaska, but the BRT was unaware of records of humpback whale mortality resulting from HABs in this region.

We have recent evidence of high levels of domoic acid in two humpback whales that stranded in California in 2015. We obtained very few samples from the eight humpback whales that stranded in California in 2015 as most were too decayed or inaccessible for necropsy, but in these two cases we were able to test for domoic acid and detected its presence. Domoic acid has not been identified as the cause of death for the two humpback whales at this time, and at least one of them also had marks of blunt force trauma.

A recent study (Lefebvre

et al.

2016) documented spatial patterns and prevalence of domoic acid and saxitoxin exposure in Alaskan marine mammals in order to assess health risks to northern populations. Humpback whales typically feed in cooler Alaskan waters during the spring, summer, and fall months (Baker

et al.

1986). There may be resident populations of humpback whales in the southeastern Gulf of Alaska. In Alaska, their diet consists of krill and many different kinds of fish including herring (

Clupea pallasii

) and capelin (

Mallotus villosus

), all of which are planktivorous and therefore likely vectors of domoic acid and saxitoxin exposure (Bargu

et al.

2002; Doucette

et al.

2005; Lefebvre

et al.

2002a). A lower percentage of humpbacks tested positive for domoic acid (38 percent, highest concentration = 51 ng/g feces) than saxitoxin (50 percent, highest concentration = 62 ng/g). The highest domoic acid and saxitoxin concentrations were found in an individual that died from a ship strike, which may not be a coincidence because saxitoxin and domoic acid intoxication have been suggested to be a factor in the loss of ability to avoid ships and to be a cause of stranding (Geraci

et al.

1989). Unless unknown factors inhibit HABs in northern waters, warming water temperatures and increased light availability due to loss of sea ice are likely to support more blooms, increasing toxin concentrations and the health risks they present for northern marine mammal species as they have for southern species. Despite these results, we do not have any evidence to indicate that HABs are causing humpback whale mortalities that rise to a level that would indicate they are contributing significantly to the extinction risk of humpback whale DPSs, now or in the foreseeable future. (Please note that the Arabian Sea DPS, which we list as endangered, presents special considerations as discussed in the Arabian Sea DPS section.)

With regard to impacts on the humpback whale's food supply (in terms of krill), humpback whales switch prey types and are also found feeding on schools of small fish when those are more available. This adaptability is beneficial within and between years and feeding areas and may help humpback whales be more resilient to changing prey distributions and availability. On the negative side, this adaptability may also bring the whales into greater contact with fisheries for these same fish, leading to increases in interactions. As we stated in the proposed rule (80 FR 22304; April 21, 2015), “. . . the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase, but not in the foreseeable future.”

While it is important to continue monitoring humpback whale health, we cannot conclude that ocean acidification is contributing significantly to the extinction risk of any humpback whale DPS through growth and toxicity of phytoplankton associated with HABs or impacts to the humpback whale's food supply, now or in the foreseeable future.

Comment 25:

Several commenters asserted that NMFS makes nothing more than a passing reference to climate change and ocean acidification, despite repeatedly recognizing that threats from climate change are likely to increase. In so doing, one commenter argued, NMFS failed to adequately analyze the threat they pose and improperly and summarily dismissed these threats in its analysis for the DPSs not proposed to be listed. Another commenter stated that humpback whales have not recovered to abundances that could sustain a rapid decline due to expected climate changes in the foreseeable future.

Response:

We evaluated the effects of climate change and ocean acidification on each humpback whale DPS, as discussed in our proposed rule (80 FR 22304; April 21, 2015 at 22328-22329), but found no basis to conclude they contribute significantly to extinction risk for most DPSs, now or in the foreseeable future. (Please note that the Arabian Sea DPS, which we list as endangered, presents special considerations as discussed in the Arabian Sea DPS section). The ESA requires that listing decisions be based solely on the best available scientific and commercial information. We cannot merely speculate that climate change and ocean acidification contribute significantly to the extinction risk of any humpback whale DPS, but must base our listing determinations on evidence sufficient to indicate that a particular effect is likely to lead to particular biological responses at the species level. In fact, the only evidence for climate change effects on prey abundance or type is humpback whales moving north into Arctic waters, which is an expansion of their range and could be seen as a positive effect. There is a high degree of uncertainty associated with the fundamental issue of whether loss of sea ice will negatively affect krill; while overwintering larval krill use sea ice for predator protection and as a food source (algae on the underside of the ice), it is possible that krill would do better in open water because it has higher primary productivity. Here the data do not allow us to draw more than speculative conclusions as to the impacts of climate change on the

species, and thus our qualitative analysis of the impacts of climate change satisfies our obligation to use the best scientific and commercial data available.

See Oceana, Inc.

v.

Pritzker,

75 F. Supp. 3d 469, 493 (D.D.C. 2014)

Comment 26:

One commenter asserted that the scientific record does not support the statement made by the IWC and cited in the status review report and the proposed rule, “It is generally accepted that cetaceans are unlikely to suffer problems because of changes in water temperature per se (IWC 1997).” This commenter added that the proposed rule changes fail to address environmental and health concerns regarding climatic events that have already begun, and that they believe will escalate in the foreseeable future. The commenter described her research on the structure and innervation of humpback whale skin, and concluded that critical concerns facing the species from climate change include: (1) UV radiation exposure secondary to ozone depletion compromises skin by burns and blisters, making the whale more susceptible to pathogens and weakening its immune response; (2) If water temperatures rise, the ability of these animals to cool down, particularly in tropical birthing and calving grounds, will be diminished. While the metabolic effects of this are unknown, her experience with whale skin suggests to her that one complication will be a breakdown of skin integrity; (3) Low pH levels are experienced as chemical burns. This commenter asserted that her research has shown these animals have neuroanatomical fibers in their skin that may respond to similar stimuli; (4) Skin diseases, lesions, lice, pathological microbial communities, and pollutants is another area of particular concern, as the science exploring lesions and immune response is minimal, though reported occurrences are increasing. While whales were able to evolve during past climatic shifts, this commenter argues, the present rapid rate of temperature change and ocean acidification is unprecedented. The commenter concludes that it is not wise to assume whales will be able to genetically evolve or adopt behavioral modifications sufficient to overcome the foreseeably predicted changes. The commenter provided 4 citations related to ultraviolet (UV) radiation damage to whale skin.

Response:

When we cited the IWC (1997) report in the proposed rule, we added, “Rather, global warming is more likely to effect changes in habitats that in turn potentially affect the abundance and distribution of prey in these areas.” We carefully reviewed the four citations (Martinez-Levasseur

et al.

2010, 2013a, 2013b; Bowman

et al.

2013) related to UV radiation damage to whale skin provided by the commenter and not reviewed at the time of the proposed rule. Results from Martinez-Levasseur

et al.

(2010) may indicate quick responses to increasing irradiation, based on increased number of melanocytes, stimulation of the synthesis of melanin, and augmented apoptosis (the death of cells that occurs as a normal and controlled part of an organism's growth or development) when exposed to UV radiation in blue whales, fin whales, and sperm whales. Martinez-Levasseur

et al.

(2013a) discovered an apparent plastic pigmentation response as well as the use of distinct strategies to counteract harmful exposure to UV radiation amongst whale species, raising questions about the selective pressure that sun exposure has exerted on these marine mammals. Martinez-Levasseur

et al.

(2013b) provided preliminary results that demonstrate an association between the levels of expression of target genes and sunburn microscopic lesions previously recorded in cetacean epidermis. Bowman

et al.

(2013) presented a reliable method which, for the first time in the literature, allows for the simultaneous detection of skin mtDNA damage in the same three species of sun blistered whales and noted that it would be interesting to see if detected differences in damage among these species reflect any behavioral differences, such as migration patterns, skin pigmentation, or the time spent at the surface of the ocean. While these studies are interesting, they do not provide sufficient evidence to conclude that increased UV radiation due to climate change is currently affecting the status of humpback whale DPSs or is likely to do so within the foreseeable future. The commenter did not provide any citations to her own published research, so we cannot evaluate her other assertions, which were only generally described. We have no evidence that humpback whales will be impacted in the ways described by this commenter within the foreseeable future. The only DPS for which we consider climate change to be a significant threat is the Arabian Sea DPS, as we stated in the proposed rule, and we are listing this DPS as endangered.

Comment 27:

One commenter stated that delisting populations will also expose whales to new threats, the impacts of which are not well understood. The commenter suggested that acoustic prospecting, off-shore drilling, and other impacts of the oil and gas industry have never been fully realized for these animals as these types of projects are recent additions to the ocean environment and their development has been limited in the whales' habitat due to their protected status. The commenter further suggested that deep-sea mining is another new industry, the impacts of which are just beginning to be studied now, that has the potential to release toxic contaminants previously locked away in the seabed, and that old industries haven't yet reformed into modern, sustainable practices. This commenter asserted that fishing continues globally to take larger catches than science recommends; farming, sewage, and industrial practices continue to put too many nutrients and pollutants into the ocean, increasing dead zones and bioaccumulation; and the shipping industry continues to increase, increasing the likelihood of ship strikes and acoustic interference as the oceans become noisier. Another commenter asserted that NMFS also failed to consider new practices in the oil and gas industry that present new threats. Offshore “fracking”—an unconventional oil and gas extraction practice that involves blasting voluminous amounts of water and toxic chemicals into the earth at high pressures to crack rock beneath the ocean floor—is expanding, exposing animals to possible leaks and to the chemical discharges that are a byproduct of this activity. This same commenter said that, in addition to analyzing each threat on its own, NMFS must also analyze threats to humpbacks cumulatively to determine if they are threatened or endangered, citing

Carlton

v.

Babbitt,

900 F. Supp. 526, 530 (D.D.C. 1995) (the agency “must consider each of the listing factors singularly and in combination with the other factors”). This commenter asserted that NMFS paid lip service to this requirement by claiming that the five listing factors do not pose a threat to recovery “either alone or cumulatively.”

Response:

The threats mentioned in this comment are described very generally, and we have no specific evidence to indicate that they will negatively impact any humpback whale DPS. We considered the potential for new threats in developing our proposed listing determinations, and we conclude that these threats are not likely to increase the risk of extinction to any of the DPSs not proposed for listing to the point where they would warrant listing under the ESA. Finally, it is important to note that the Monitoring Plan we are issuing today for humpback whales

establishes a framework for continued monitoring and assessment of potential threats for the next 10 years (twice the minimum 5-year monitoring period required by the ESA).

With regard to the suggestion that we failed to adequately evaluate the combined effects to the species from all section 4(a)(1) factors, while we did not explicitly discuss the combined effects of different threats on the different DPSs in the proposed rule, it is clear that we did consider them. For the West Indies, Hawaii, and Mexico DPSs, we did not mention the combined effects of threats in the proposed rule because the abundance estimates of these DPSs were sufficiently high that we could not foresee any combination of threats impacting the DPSs to the point where we would consider them threatened or endangered. (Note that we now have revised abundance estimates for the Mexico DPS and have reconsidered its status in light of the continuing threat of fishing gear entanglements). For the Southern Hemisphere DPSs that we did not propose to list (Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific), we noted in our proposed rule, “None of the factors that may negatively impact the status of the humpback whale appear to pose a threat to recovery, either alone or cumulatively, for these DPSs.” The high abundances of these DPSs similarly led us to conclude there was no potential combination of threats that would result in endangered or threatened status for any of these DPSs. For those DPSs that we proposed listing as endangered (Cape Verde Islands/Northwest Africa, Arabian Sea) on the basis of the factors identified, there was no need for further consideration of combinations of effects because no amount of additional risk could lead to any greater protected status than endangered. While the discussion in the status review report and proposed rule was not explicit on this point, consideration of the combined effect of threats can be reasonably discerned from them and we reiterate this reasoning here.

Since the proposed rule published, we have reconsidered our listing determinations for the Western North Pacific, Mexico, and Central America DPSs. We have determined that the Western North Pacific and Central America DPSs are endangered (please see Western North Pacific DPS and Central America DPS sections for our rationale) and that the Mexico DPS is threatened (please see Mexico DPS section for our rationale). Further, we now confirm in this final rule that we have considered whether any section 4(a)(1) threats in combination would lead us to conclude that a different listing status is appropriate for any DPS. We have reached our final listing determinations after fully considering all factors together and individually.

Comments on the West Indies DPS

Comment 28:

One commenter noted that on page 95 (80 FR 22304; April 21, 2015 at 22325), the proposed rule states that the SBNMS has the potential to reduce the extinction risk of the West Indies DPS by providing protection on the feeding ground. While this commenter agrees that the SBNMS is a site of important research and management initiatives, the commenter points out that it is a small marine protected area that is visited by only approximately 200 individual humpback whales per year on average (CCS, unpublished data). As such, argues the commenter, it is unlikely that it could have significant effect on the viability of the West Indies DPS. The commenter further notes that, on a larger scale, the SBNMS is part of a Sister Sanctuary Program with other marine protected areas within the range of North Atlantic humpback whales and that this relationship has the potential to facilitate conservation and research across international boundaries. However, it is not clear how this program might be impacted by a change in the ESA status of the proposed West Indies DPS.

Response:

We agree that the SBNMS is a small marine protected area, but as the commenter noted, it is part of a larger Sister Sanctuary Program that can provide some protection to these whales at certain stages in their migration. To date, SBNMS has sister sanctuary agreements with the Dominican Republic, the French Antilles, and Bermuda. The intent of the agreement(s) is to foster cooperation on activities of mutual interest and exchange experience through coordination of capacity building, research, and education concerning the conservation, stewardship, and management of the endangered humpback whale, and the respective marine bank ecosystems they frequent. We do not expect these activities to change because the West Indies DPS of humpback whale is not protected under the ESA.

Comment 29:

The State of Massachusetts supports not listing the West Indies DPS and asserts that the MMPA and the Atlantic Large Whale Take Reduction Plan (ALWTRP) will provide protections.

Response:

We acknowledge the State of Massachusetts' comments, and are finalizing the identification of, and a “not warranted” finding for, the West Indies DPS in this final rule. We agree these other actions provide protection for humpback whales.

Comment 30:

Two commenters suggested that there was insufficient support for a single, wider Caribbean region DPS, taking the position that the West Indies DPS we identified comprises two (or more) DPSs that should be considered endangered. Another commenter stated that new information is now available based on research in the eastern Caribbean and the eastern North Atlantic and that this information does not support previous assumptions that the West Indies is a homogeneous breeding population. Rather, whales in the eastern Caribbean appear to exhibit different breeding timing and preferential exchange with eastern North Atlantic areas (Stevick

et al.

accepted; Stevick

et al.

2015). This commenter stated that it is unclear whether these results might require a change in the spatial boundaries of the two proposed DPSs, or if there should be more than two DPSs in the North Atlantic. The commenter stated that it is also not clear whether further heterogeneity may exist within other under-sampled areas of the Caribbean. The commenter believes that these results must be further scrutinized before ascertaining the number, the geographic extent, and status of DPSs in the North Atlantic.

Response:

Research (Stevick

et al.

2015) shows that some humpback whales that are resighted in the western North Atlantic feeding grounds move into the more northern part of the Caribbean in January and February, and another group that is resighted in Iceland and northern Norway enters the southeastern Caribbean at a later date. Further, Stevick

et al.

(2016) discusses 4 individual humpback whales sighted in Guadeloupe and the Cape Verde Islands; one was subsequently sighted in Norway. However, this information is based on very few data, and does not provide a sufficient or convincing basis to combine whales that breed in the Southeastern Caribbean with those in the Cape Verde Islands/Northwest Africa DPS or to identify three or more DPSs in the North Atlantic. The difference in observed breeding timing could be a result of survey period. In addition, at least three humpback whales from the Lesser Antilles (southeastern Caribbean) have been resighted in West Greenland, Newfoundland, and Norway, as well as the Dominican Republic, which indicates mixing. At this time, we believe the best available scientific and

commercial information supports the DPS structure we have identified. While further research, including studies of genetic variation between breeding areas in the northern Caribbean and southeast Caribbean, as well as the Cape Verde Islands, may support the commenter's position in the future. At this time we find no basis to draw different conclusions about the DPS structure of humpback whales in the North Atlantic than we described in our proposed rule.

Comment 31:

Several commenters stated that the Years of the North Atlantic Humpback (YONAH) and More North Atlantic Humpbacks (MONAH) surveys are 20+ and 10 years old, respectively, and that we relied on older, unpublished abundance data for the proposed West Indies DPS. The commenters noted that we have suggested in the past that data older than 8 years are not good enough for estimating potential biological removal (PBR) (Stevick

et al.

2015). One of the commenters asserted that the MONAH data were used to calculate a population trend that is said to vary from a “zero percent” increase to a 3 percent increase in a 10-year period depending on the model used. This commenter added that the MONAH data remain unavailable for review a decade later. The commenters also stated that the population growth rate for this DPS seems to be only 3.1 percent (Stevick

et al.

2003), but the Humpback Whale Recovery Plan said 3.5 percent would be required before we could consider delisting the humpback whale. Further, they argued, the abundance estimate of 12,312 individuals for the West Indies DPS' putative breeding ground is only 10 percent of the long-term estimate of 112,000 individuals.

Response:

We are required to use the best available scientific or commercial information when making a listing determination under the ESA, and this is what we did when we relied on these abundance and trend estimates. The commenter has taken certain prior statements out of context: We have determined that, unless compelling evidence indicates that a stock has not declined since the last census, the minimum population size estimate of the stock should be considered unknown if 8 years have transpired since the last abundance survey (NMFS 2016). This guidance is in the context of our PBR calculations under the MMPA and does not apply to ESA listing determinations, which require that we base our decisions on the best available scientific and commercial data.

However, we agree with the commenter that the MONAH data remain unavailable and have not been fully analyzed yet, so in this final rule we are not relying on the abundance estimate from the MONAH survey. The abundance estimates from the YONAH survey are therefore the best available scientific or commercial information, and they indicate a population size for this DPS of 10,400 (95 percent confidence interval (CI) 8,000-13,600) individuals using genetic identification data, and 10,752 (coefficient of variation (CV) = 6.8 percent) individuals using photo identification data for the period 1992-1993. Stevick

et al.

(2003) estimated the growth rate at 3.1 percent (standard error (SE) = 1.2 percent) for the period 1979-1993. While these abundance and growth rate estimates are based on data that were collected prior to the MONAH data, we consider them to be more reliable at this time. We reaffirm our conclusion that the West Indies DPS is not threatened or endangered under the ESA. If newer reliable data become available, that information can be considered in the context of 5-year reviews, the Monitoring Plan, or upon a petition, to determine whether any further changes to listing status are warranted.

The commenters who stated that the population growth rate for this DPS seems to be only 3.1 percent (Stevick

et al.

2003) are correct, but their assertion that the Humpback Whale Recovery Plan said 3.5 percent would be required before we could consider delisting the humpback whale is incorrect. The Recovery Plan did not state that a 3.5 percent growth rate would satisfy the recovery goal of doubling the population size (please see our response to Comment 10 for further details).

As we have explained, our action today is based on a comprehensive evaluation of the DPSs comprising the humpback whale's entire range and assigns a listing status to each DPS. To the extent that our action for the West Indies DPS may constitute a “delisting,” it is consistent with § 424.11(d), which provides for delisting on “the basis of recovery” (424.11(d)(2)). As that phrase is used in the regulations, it means that “the best scientific and commercial data available indicate that [the species] is no longer endangered or threatened” (424.11(d)(2)). We are not required to first find that the recovery plan criteria have been met in order to directly apply the 4(a)(1) factors. As discussed in the proposed rule, we determined, after evaluating the ESA section 4(a)(1) factors, that the West Indies DPS is not endangered or threatened. For further explanation, please see the

Rationale for Revising the Listing Status of a Listed Species Under the ESA

section above and our responses to Comments 8 and 9.

Comment 32:

One commenter noted that there is very little available scientific information about breeding areas for the humpback whales near Iceland and Norway, where whales are still killed. Many of these populations use the same feeding areas, so if a whale is killed, it would be hard to determine the origin of a particular humpback whale population. In these areas where multiple populations feed, it would be difficult to determine which level of protection applies to individuals when each population is treated differently. This commenter does not support the removal of ESA protections from North Atlantic humpback whales that breed in the West Indies, a population that they assert has not yet recovered from whaling and continues to be seriously impacted by human induced threats.

Response:

We agree that there is little available scientific or commercial information about breeding areas for humpback whales near Iceland and Norway. Humpback whales feeding in the Northeast Atlantic have been matched to breeding grounds in the Cape Verde Islands and the Caribbean. Additional research would provide a greater understanding of the proportions of humpback whales in the Northeast Atlantic that come from the Cape Verde Islands and the Caribbean, but the ESA standard of “best available scientific and commercial information” does not require that we conduct new studies. Rather, we must rely on the best

available

information. Here, we conclude that the best available scientific and commercial information is sufficient to support our determinations.

Iceland and Norway do not hunt humpback whales, so we are confident that individual humpback whales migrating to Iceland and Norway from the Caribbean are not in danger of extinction due to whaling. Nor is this threat likely to affect the status of whales in the foreseeable future. Iceland hunts minke whales for its domestic market and its hunt for fin whales was recently suspended. Norway hunts minke whales only for domestic consumption. These countries have not recently expressed a desire to hunt humpback whales, and there are no other indications to suggest that they will conduct such hunts. Therefore, we are confident they will not begin whaling for humpback whales in the foreseeable future. (Please also see our response to Comment 12).

Comment 33:

One commenter noted that few humpback whales were seen in the New York Bight area before 2011, and now they are coming back. This

commenter stated that the Hudson River is improving, but that threats still remain, and shipping in this area will only increase. This commenter recommended leaving the West Indies DPS listed as endangered, adding that there is no definitive evidence to conclude that the West Indies DPS is leveling off or reaching carrying capacity.

Response:

The best available scientific and commercial information indicates that the West Indies DPS is increasing in abundance. As we explained in our response to Comment 9, whether a DPS reaches carrying capacity (or historical abundance) is not a criterion for recovery under the ESA. Please see responses to Comments 34-38 and 42 regarding threats to the West Indies DPS.

Comment 34:

One commenter asserted that humpback whales in the Northwest Atlantic are subject to impacts of industrial electric generators operating on the shoreline, such as Entergy Pilgrim Nuclear Power Station on the shore of Cape Cod Bay (Plymouth, MA), Seabrook Station Nuclear Power Plant (Seabrook, NH), and Mirant Canal Power Plant (Sandwich, MA). Possible and realized negative impacts include entrainment and impingement of food sources (fish and ichthyoplankton), as well as chemical, thermal, and radioactive discharges.

Response:

We have conducted informal consultations under section 7 of the ESA for the relicensing of the named power plants. The consultations concluded that the relicensing and continued operation of the power plants were not likely to adversely affect any ESA-listed species under our jurisdiction (including, at the time, humpback whales). On May 17, 2012, we concluded an informal consultation with the Nuclear Regulatory Commission (NRC) on the relicensing of the Pilgrim Nuclear Power Plant Station (PNPPS) located in Plymouth, Massachusetts. The consultation concluded that the relicensing and continued operation of the PNPPS was not likely to adversely affect any NMFS-listed species. No new information has come to our attention that would cause us to take a different view for this final listing determination. While some zooplankton is likely lost to entrainment at the PNPPS each year, approximately 85 percent of entrained zooplankton are believed to survive (Bridges and Anderson 1984). Further, in October 2015, Entergy Corporation announced that it will close its PNPPS in Plymouth, MA, no later than June 1, 2019.

On October 10, 2012, we completed an informal consultation with the NRC on the proposed relicensing of the Seabrook Nuclear Power Station (SBNPS) located in Seabrook, New Hampshire. We concurred with the NRC's determination that the continued operation of the SBNPS is not likely to adversely affect any ESA-listed species.

We consulted on the Mirant Canal Power Plant in 2008, concluding, “Based on the above analysis of water quality effects and the determination that all effects, if adverse, will be insignificant or discountable, NMFS is able to concur with EPA's determination that the proposed NPDES permit for this facility is not likely to adversely affect listed whales or sea turtles.”

Comment 35:

One commenter expressed concern about the adequacy of other protection measures for the West Indies DPS, which the commenter understands to be the primary breeding ground for North Atlantic humpback whales that consistently return to U.S. waters each year. The latest information on population size and growth rate for the West Indies DPS is more than a decade old and, according to the commenter, the results are somewhat ambiguous. This commenter would be more comfortable with listing changes if there were proven success in DPS-level monitoring and controlling current human impacts. The commenter stated that if populations were to lose ESA protections then it will be necessary to track their status more intensively to reliably detect and potentially reverse adverse effects of delisting in a timely manner.

Response:

The commenter refers to the West Indies DPS as “the primary breeding ground for North Atlantic humpback whales.” To clarify, the West Indies DPS refers to the individual humpback whales that constitute the DPS, not the breeding ground itself. The breeding grounds for the West Indies DPS include waters of the Dominican Republic (primarily Silver Bank, Navidad Bank) and Puerto Rico (Mona Passage).

There are a number of ongoing conservation efforts that benefit the West Indies DPS. These include a number of measures implemented under the authority of the MMPA, including the ALWTRP and Harbor Porpoise Take Reduction Plan (HPTRP) to reduce the risks associated with large whale interactions with fishing gear, and the Ship Strike Reduction Strategy to reduce risks associated with vessel collisions. Please see the proposed rule (80 FR 22304; April 15, 2015 at 22324-22325) for more information on these measures.

Finally, it is important to note that the Monitoring Plan we are issuing today for humpback whales establishes a framework for continued monitoring and assessment of threats for the next 10 years (twice the minimum 5 year monitoring window required by the ESA).

Comment 36:

One commenter stated that it has not been possible to adequately limit the human impacts from entanglement and ship strikes that are known to occur within U.S. waters, let alone those that may occur in other parts of the range of the West Indies DPS. The commenter stated that humpback whale takes along the U.S. East Coast have exceeded management limits for more than two decades, and these are thought to be underestimates of the total number of takes actually occurring (van der Hoop

et al.

2013; Pace

et al.

2014; Cole and Henry 2013). As rationale for urging us to keep the West Indies DPS listed as endangered, another commenter asserted that this year alone the marine animal disentanglement team, based out of Provincetown, MA, has received reports of 7 entangled humpback whales. Another commenter asserted that entanglement-related mortality in Canada is largely unaddressed, and there has been an increase in the use of trap/pot gear. This commenter also asserted that there was an increased risk of entanglement for humpback whales in the areas that were reopened to groundfishing when the New England Fishery Management Council took final action on their Omnibus Essential Fish Habitat Amendment 2.

Response:

The largest potential threats to the West Indies DPS are entanglement in fishing gear and ship strikes; these occur primarily in the feeding grounds, with some documented in U.S. waters of the mid-Atlantic. While some large whales display evidence of surviving vessel collisions, these interactions, particularly with larger ships, are routinely lethal due to blunt force trauma of the impact and the severe lacerations associated with the vessel propeller. It is difficult to determine whether mortalities and injuries from these threats are due to increasing abundance of humpback whales or increased numbers of fishing gears and vessels. However, we have determined that the West Indies DPS continues to grow in abundance, despite the fishing gear entanglements and vessel strikes, and we determine that its high abundance provides sufficient resilience within the foreseeable future against such threats.

We disagree that it has not been possible to adequately limit the human impacts from entanglement and ship strikes that are known to occur within U.S. waters, let alone those that may occur in other parts of the range of the West Indies DPS. Existing management measures implemented specifically for protected resource conservation should mitigate any impacts of the amendment on large whales and other marine mammals. The ALWTRP implements gear restrictions, spatially and seasonally, to minimize interactions between whales and vertical lines from fishing gear, as well as to reduce serious injury or mortality, should an interaction occur. Two recent adjustments to the ALWTRP include the “Sinking Groundline Rule” that became effective in April 2009 (73 FR 51228; September 2, 2008), and the “Vertical Line” rule that became effective in August 2014 (79 FR 36586; June 27, 2014). These rules have improved, or are expected to improve, management of marine mammal interactions with fishing gear. In addition, when the Atlantic Large Whale Take Reduction Team (ALWTRT) was working on the vertical line rule to address entanglement risk of vertical lines to large whales, it determined that gillnets represent less than 1 percent of the total vertical lines on the east coast (see Appendix 3A in the most recent ALWTRP Final Environmental Impact Statement) and that the impacts from this gear on large whales is minimal. Therefore, the 2014 rule focused on trap/pot vertical line reduction, which is a gear that has been, and would, for the most part, continue to be allowed in the habitat management areas. Areas with the greatest co-occurrence of large whales and gillnet gear will continue to be subject to existing restrictions under the ALWTRP. Further, should data indicate that gillnet entanglement risk has increased, the ALWTRT would be reconvened to address the issue.

Because a number of the proposed alternatives considered for Omnibus Essential Fish Habitat Amendment 2 would potentially open areas to fishing that have been closed for a significant period of time, there are no data to provide insight as to how gear may potentially shift and, if there is a shift, what kind of impact this may have on protected species. As a result, it is not possible to forecast precisely what entanglement risk would exist if the closures are removed. However, we can adequately examine risk based on overall gillnet effort—

i.e.,

the actual number of nets in the water. Because there is unlikely to be an increase in gillnet effort overall, the overall risk of marine mammal entanglement is unlikely to increase and the risk of opening closed areas to gillnet fishing is unknown. There could potentially be a decreased level of entanglement risk, as areas in which gillnet gear is currently heavily concentrated become more diffuse. Please see our response to Comment 39 for details on measures that are in place for Atlantic right whales that likely reduce the risk of vessel collisions with humpback whales.

Further, Barlow and Clapham (1997) have estimated a population growth rate of 6.5 percent (SE = 1.2 percent) for the well-studied humpback whale population in the Gulf of Maine, which is part of the West Indies DPS. Clapham

et al.

(2003) suggest that there are indications this growth rate has slowed in recent years.

The current PBR for Gulf of Maine humpback whale population stock (under the MMPA) is 2.7 animals per year. When this final rule becomes effective, PBR will be recalculated and will increase because the West Indies DPS will no longer be listed, and there will be no ESA-listed DPS that overlaps with the Gulf of Maine stock. The total estimated human-caused mortality and serious injury to the Gulf of Maine humpback whale stock is estimated as 10.3 animals per year. This average is derived from two components: (1) Incidental fishery interaction records, 8.9; and (2) records of vessel collisions, 1.4 (Waring

et al.

2014).

While mortality and serious injury of humpback whales from the Gulf of Maine stock have exceeded its PBR, this stock is only a small component of the total West Indies DPS humpback whale population. The best estimate for the total population of humpback whales in the Gulf of Maine stock is 823 animals (Waring

et al.

2014). The overall population of the West Indies DPS of humpback whales is estimated to be 10,400-10,752 (please see response to Comment 31). Overall, the West Indies DPS was estimated to be increasing slowly over the time period 1980 to 2005, but there is not sufficient evidence to statistically conclude the DPS has leveled off, such as would occur for a population reaching carrying capacity (Bettridge

et al.

2015). In contrast, estimates from feeding areas in the North Atlantic indicate strongly increasing trends in Iceland (1979-1988 and 1987-2007), Greenland (1984-2007), and the Gulf of Maine (1979-1991). There is some indication that the population growth rate in the Gulf of Maine has slowed in more recent years. It is not clear why the trends appear so different between the feeding and breeding grounds. A possible explanation would be that the Silver Bank breeding ground has reached carrying capacity, and that an increasing number and percentage of whales are using other parts of the West Indies as breeding areas (Bettridge

et al.

2015). In any case, the ESA does not require that the population level of a listed species must “level off” or reach carrying capacity for ESA protections to not apply; we have directly evaluated the likelihood of the DPS to persist by considering abundance and trend information and applying the section 4(a)(1) factors directly.

It is not clear whether there is a significant increase in the use of trap/pot gear in Canada as the commenter suggests. Canada's most recent assessment of the Northwest Atlantic population of humpback whales conducted by COSEWIC determined that the population is not at risk of being listed as endangered under SARA. A Code of Ethics was established by a non-profit organization working with whale-watching operators to minimize the impact of whale watching on whales. Whale watching and ecotourism operators throughout Atlantic Canada and Quebec have adopted similar codes of ethics to reduce interactions with large whales, including humpback whales. A protocol has been established for releasing entangled whales from fishing gear. There are a number of first responders in Canadian waters. In addition to the Grand Manan Whale and Seabird Research Station and other groups in Nova Scotia, the volunteer Campobello Whale Rescue Team responds to entanglements in Canadian waters (primarily the lower Bay of Fundy) and collaborates with U.S.-based rescue groups at the Provincetown Center for Coastal Studies and the New England Aquarium where humpback whales and other whale species are more prevalent. We do not agree that entanglement-related mortality in Canada is largely unaddressed.

Regarding the commenter's assertion that there would be an increased risk of entanglement for humpback whales in the areas that were reopened to groundfishing when the New England Fishery Management Council (Council) took final action on their Omnibus Essential Fish Habitat Amendment, this is not a final action. NMFS has not taken a final action on this amendment. Between October 10, 2013 and January 8, 2014, the Council accepted written comments on the amendment and its associated draft Environmental Impact Statement, and these comments were submitted to us. Between November 24,

2014 and January 7, 2015, the Council held 12 public hearings on Omnibus Essential Fish Habitat Amendment 2. All of the proposed habitat management alternatives, except for the no action alternative, would remove year-round groundfish closures and result in gear capable of catching groundfish being allowed into areas where they had previously been restricted. Changes in the patterns of fixed gear use, specifically concentrations of fixed gear, have the greatest potential to influence the magnitude of protected resources impacts in the region. Gillnets and traps/pots have been documented as having the most interactions with whales and dolphins as compared to trawl or hook gear. The management measures currently in place for the Northeast multispecies, monkfish, and skate fisheries (

i.e.,

the fisheries that use gillnets and bottom trawls) and the scallop fishery all limit the overall amount of fishing effort, mainly through annual catch limits on target stocks. As a result, the changes proposed in this amendment would not be expected to result in an increase in fishing effort overall, just shifts in the location of that effort.

Comment 37:

Commenters assert that while some humpback whale po

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