# Endangered and Threatened Wildlife and Plants; Endangered Status of the Gulf of Mexico Bryde's Whale

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-06917

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 15, 2019
- **Citation:** 84 FR 15446

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 141216999-8702-02]
RIN 0648-XD669
Endangered and Threatened Wildlife and Plants; Endangered Status of the Gulf of Mexico Bryde's Whale

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We (NMFS) issue a final rule to list the Gulf of Mexico Bryde's whale (
Balaenoptera edeni
) (hereafter GOMx Bryde's whale) as endangered under the Endangered Species Act (ESA). We have completed a status review of the GOMx Bryde's whale in response to a petition submitted by the Natural Resource Defense Council. After reviewing the best scientific and commercial data available, including the status review and comments received on the proposed rule, we have determined that the GOMx Bryde's whale is a subspecies of
B. edeni
and warrants listing as endangered. The GOMx Bryde's whale is presently in danger of extinction (
i.e.,
meets the definition of endangered) throughout all of its range due to its small population size and restricted range, and the threats of energy exploration, development and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise. Critical habitat is not determinable at this time but will be proposed in a future rulemaking.

DATES:

This final rule is effective on May 15, 2019.

ADDRESSES:

Public comments are available at
www.regulations.gov
identified by docket number NOAA-NMFS-2014-0157. A list of references cited in this final rule and other supporting materials are available at:
http://sero.nmfs.noaa.gov/protected_resources/brydes_whale/index.html,
or by submitting a request to the National Marine Fisheries Service, Southeast Regional Office, Protected Resources Division, 263 13th Avenue South, St. Petersburg, Florida 33701.

FOR FURTHER INFORMATION CONTACT:

Laura Engleby or Calusa Horn, NMFS, Southeast Regional Office, (727) 824-5312, or email:
laura.engleby@noaa.gov
or
calusa.horn@noaa.gov;
or Lisa Manning, NMFS, Office of Protected Resources, (301) 427-8466, or email:
lisa.manning@noaa.gov.
If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

On September 18, 2014, we received a petition from the Natural Resources Defense Council to list the Gulf of Mexico population of Bryde's whale (
Balaenoptera edeni
) as an endangered species. The petition stated that the GOMx Bryde's whale is endangered based on at least three of the five section 4(a)(1) factors: Present or threatened destruction, modification, or curtailment of habitat or range; inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. The petitioner also requested that critical habitat be designated concurrent with listing under the ESA.

On April 6, 2015, we published a 90-day finding in the
Federal Register
that the petition presented substantial scientific and commercial information indicating that the petitioned action may be warranted (80 FR 18343). At that time, we announced the initiation of a formal status review and requested scientific and commercial information from the public, government agencies, scientific community, industry, and any other interested parties on the delineation of, threats to, and the status of the GOMx Bryde's whale. We received eight public comments in response to the 90-day finding, with the majority of comments in support of the petition. The public provided scientific literature, including a recently developed density model and abundance estimate, which was considered in the status review.

To help determine whether the Bryde's whale population in the Gulf of Mexico warrants listing under the ESA, we formed a Status Review Team (SRT) of seven biologists, including six biologists from NOAA Fisheries Science Centers (Southeast, Southwest, and Northeast) and Southeast Regional Office, and one from the Bureau of Safety and Environmental Enforcement—Gulf of Mexico Region, to compile and review the best available scientific and commercial information on Bryde's whales in the Gulf of Mexico and assess their extinction risk. The status review prepared by the SRT summarizes GOMx Bryde's whale taxonomy, distribution, abundance, and life history; identifies threats affecting the status of the species; and describes existing regulatory mechanisms and conservation efforts that affect the species (Rosel
et al.
2016). The status review incorporates information received in response to our request for information (80 FR 18343; April 6, 2015), and was peer reviewed by three independent scientists with expertise in marine mammal biology, ecology, acoustics, genetics, management and policy, or related fields. Peer reviewer comments were addressed and incorporated, as appropriate, prior to dissemination of the final status review (Rosel
et al.
2016).

On December 8, 2016, we published a proposed rule to list the GOMx Bryde's whale as endangered (81 FR 88639). We solicited comments on our proposed rule from the public for 75 days (81 FR 88639, December 8, 2016; 81 FR 92760, December 20, 2016; 82 FR 9707, February 8, 2017) and held a public hearing on January 19, 2017, at which we also accepted public comments. We are basing our listing determination on information in the status review, information received from the public, and additional materials cited in this final rule, which comprise the best available scientific and commercial information.

Listing Determinations Under the ESA

We are responsible for determining whether the GOMx Bryde's whale is threatened or endangered under the ESA (16 U.S.C. 1531
et seq.
). 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 to protect the species. To be considered for listing under the ESA, a group of organisms must constitute a “species,” which is defined in section 3 of the ESA to include taxonomic species and any subspecies of fish, or wildlife, or plants, and any distinct population segment (DPS) of any species of vertebrate fish or wildlife which interbreeds when mature (section 3(16)). Under our joint regulations with the United States Fish and Wildlife Service (collectively, the Services), we must rely not only on standard taxonomic distinctions, but also on the biological expertise of the agency and the scientific community, to determine if the relevant taxonomic group is a “species” for purposes of the ESA (see 50 CFR 424.11(a)). Under section 4(a)(1) of the ESA, we must determine whether any species is endangered or threatened due to any of the following five section 4(a)(1) factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B)

overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (sections 4(a)(1)(A) through (E)).

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.” (sections 3(6) and 3(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 currently at risk of extinction but is likely to become so in the foreseeable future. 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).

In determining whether the Gulf of Mexico population of Bryde's whale meets the definition of an endangered or threatened species under the ESA, we first determined that, based on the best scientific data available, the GOMx Bryde's whale is a subspecies of the globally distributed Bryde's whale, and thus eligible for listing under the ESA. We then considered the information on the specific life history and ecology of the species, the nature of threats, the species' response to those threats, and population numbers based on information included in the status review and any additional materials cited in this final rule, as well as the results of the Extinction Risk Assessment (ERA) in the status review. In determining whether the GOMx Bryde's whale is endangered or threatened, the mere identification of factors that could impact a species negatively is not sufficient to compel a finding that ESA listing is appropriate. In considering those factors that might constitute threats, we looked beyond the species' mere exposure to the factor to determine whether the species responds, either to a single threat or multiple threats, in a way that causes actual impacts at the species level. Once we evaluated the threats, we assessed the efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats and alter extinction risk. We also considered the public comments received in response to the proposed rule. In making this finding, we have relied on the best available scientific and commercial information.

Public Comments and Our Responses

We requested comments on the proposed rule to list the GOMx Bryde's whale as endangered for an extended 60-day period (81 FR 88639, December 8, 2016; see also 81 FR 92760, December 20, 2016, which corrected the deadline for comment submissions published in the proposed rule). In response to a request to extend the public comment period, we re-opened the public comment period for an additional 15 days (82 FR 9707; February 8, 2017), for a total comment period of 75 days. One public hearing was also held on January 19, 2017, at NOAA Fisheries Southeast Regional Office, in St. Petersburg, Florida.

To facilitate public participation, the proposed rule was made available on our regional web page and comments were accepted via standard mail and through the Federal eRulemaking portal. In addition to the proposed rule, the correction notice, the notice of the re-opening of the comment period, and the status review were also made publically available.

Four people attended the public hearing, three of whom offered oral comments that were similar to their written comments. We received 956 public comments on the proposed rule and supporting documents. We received four sets of comments from groups that were opposed to listing the GOMx Bryde's whale as endangered under the ESA. All other comments supported listing the GOMx Bryde's whale as endangered under the ESA. One commenter attached a form letter that was signed by 11,690 members, as well as an additional 661 letters that were slightly modified versions of the same form letter. Another commenter submitted a letter including signatures from 102,702 members; 2,760 individuals included a unique supportive statement with their signature.

We reviewed all comments received for information relevant to the proposed listing rule. We did not propose to designate critical habitat for the GOMx Bryde's whale in the proposed listing rule, but we requested information on the physical or biological features and areas that may support the life-history needs of the species and that may be designated as critical habitat. The few comments received concerning critical habitat are not germane to this action and will not be addressed in this final rule. However, such comments will be considered and addressed during subsequent rulemaking on critical habitat for the GOMx Bryde's whale. All relevant public comments are addressed in the following summary below. We have categorized comments under major issues and, where appropriate, have combined similar comments from multiple groups or members of the public and addressed them together.

Comments on NMFS' Use of Best Available Science

Comment 1:
Joint industry commenters stated that NMFS did not consider information they submitted in response to the request for public comment on the 90-day finding on the petition to list the GOMx Bryde's whale. They stated that the text of the status review suggests the SRT did not review their comments on the 90-day finding, and expressed concern that NMFS did not provide a response to their comment. Thus, the commenters stated that the 12-month finding is not based on the best scientific information available.

Response:
As described in the 90-day finding (80 FR 18343; April 6, 2015), and as set forth in the ESA, because we made a positive finding on the petition to list the species, we were required to conduct a review of the status of the species. To that end, we requested information from the public on the GOMx Bryde's whale to inform our review of the status of the species and our determination on whether the petitioned action is warranted. All information received on the 90-day finding, including information the commenters submitted, was considered and relevant information was incorporated into the status review and the proposed rule. We accepted comments on the proposed rule and are responding to those comments at this time.

Comment 2:
Several commenters expressed support for the proposed listing determination and agreed that the findings in the proposed rule and status review are consistent with the best available science. One commenter stated that NMFS complied with the ESA requirement to base our listing decision solely on the basis of the best scientific and commercial data available.

Response:
We appreciate the commenters' support. Section 4(b)(1)(A) of the ESA requires that listing decisions be made using the best scientific and commercial data available, after conducting a review of the status of the species and considering certain conservation efforts. We relied on the best available scientific and

commercial information contained within the status review and any additional materials cited in this final rule in forming our determination to list the GOMx Bryde's whale as endangered.

Comments on the Extinction Risk Assessment in the Status Review

Comment 3:
Joint industry group commenters stated that the SRT's extinction risk assessment was too narrow and biased in favor of finding the species was at a high risk of extinction, and therefore not based on the best scientific information available. The “severity” and “certainty” ranking systems only allowed the SRT to rank the severity of a threat as low, medium, or high, and only allowed them to find that the amount of the data supporting the conclusions (the certainty) was small, medium, or large. This system did not allow the SRT to determine that a factor does not threaten the species or that certain factors or conditions might benefit the species' abundance. With respect to the certainty ranking, the SRT members could not find that a threat had no scientific support or that a small, medium, or large amount of data disproved the threat. This system also did not allow the SRT to evaluate population stability or persistence. Further, the SRT did not assess the severity and certainty of the Inadequacy of Existing Regulatory Mechanisms. Lastly, the SRT did not analyze whether threats were occurring now or in the future.

Response:
We disagree that the SRT's extinction risk assessment was biased in favor of listing. The SRT could have found that a factor did not threaten the species. To inform the extinction risk assessment, the SRT gathered information on threats to the species. Threats are those specific human or natural events or actions that have the potential to impact the species presently or in the future. Thus, if events or actions (hereafter referred to as activities) did not have the potential to impact the species now or in the future, they were not identified as threats and were not considered in the extinction risk analysis. Furthermore, even when an activity was identified as a threat, that did not mean the SRT concluded it was threatening the species,
i.e.,
contributing to the population decline, in its extinction risk assessment. The SRT could conclude an activity was a threat with only low severity and/or a low certainty, and that those threats are unlikely to contribute to population decline. In fact, the SRT found that several activities categorized under section 4(a)(1) factor B were not likely contributing to GOMx Bryde's whale's population decline and, therefore, were not a significant contributing factor in the species' extinction risk. Further, the SRT did evaluate population stability and persistence by means of their demographic risk analysis because a species' continued persistence is directly linked to demographic processes. In particular, demographic risks associated with abundance, population growth rate, spatial structure, and genetic diversity are particularly useful for evaluating extinction risk (McElhany
et al.,
2000). The SRT evaluated each of these demographic risks.

Further, the SRT did consider actions that may benefit the species, as the SRT reviewed the best scientific and commercial information to determine whether any current or future actions may benefit the GOMx Bryde's whale. The SRT identified two conservation efforts that have the potential to benefit the GOMx Bryde's whale, the Deepwater Horizon Oil Spill Final Programmatic Damage Assessment and Restoration Plan (DWH PDARP) and the Gulf of Mexico Marine Assessment Program for Protected Species (GoMMAPPS) (see Conservation Efforts section, Rosel
et al.,
2016). In the proposed rule, we also evaluated these conservation efforts and determined that the conservation benefits that would be expected from these efforts would not be expected to reduce the extinction risk of the GOMx Bryde's whale. Beyond what we considered in the proposed rule and status review, the commenter did not provide any new information on the conditions that they believed might benefit the species' abundance. Further, as explained in the proposed rule, we summarized existing regulatory mechanisms relevant to threats to the GOMx Bryde's whale generally, and assessed their adequacy for controlling the primary threats identified. While the SRT did not rank the severity and certainty for Inadequacy of Existing Regulatory Mechanisms in its extinction risk assessment, we do not believe that this undermines the SRT's analysis or our reliance on the information in the status review for our listing determination. The SRT assessed the impacts on the species resulting from the underlying unregulated or inadequately regulated threats.

Additionally, the SRT did evaluate whether the threats were occurring now or in the future. In its extinction risk assessment, the SRT stated that current threats are those that are occurring now and that future threats are those that are likely to result in a mounting risk to the species in the next 55 years. The SRT noted that these future threats may or may not be occurring now as well.

Lastly, convening the SRT 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 determination. The SRT does not make listing decisions in its status review. We take into consideration the information provided by the SRT in the status review, but also independently evaluate that information in light of all the factors that govern listing. We thus evaluated the information in the status review and other information that became available to us and, after considering ongoing conservation efforts, we developed our listing determination. The commenters have provided no information on which to base a change to our listing determination.

Comment 4:
Joint industry group commenters stated that small population size alone is not an indicator of extinction risk. This is particularly true when a species does not occupy a high trophic level and is not constrained to a small geographic range. In addition, the SRT never compared the population estimate of 100 to 250 mature individuals to Franklin's (1980) rule of thumb to evaluate the risk of inbreeding depression. Conversely, several other commenters believed that the need for protection under the ESA is immediate, due to the GOMx Bryde's whale small population size, restricted range, and exposure to several significant threats.

Response:
The status review included a detailed discussion of how small population effects increase extinction risk. The SRT determined, and we agree, that the small size of the GOMx Bryde's whale's population makes it vulnerable to Allee effects, genetic and demographic stochasticity, and stochastic and catastrophic events (
e.g.,
oil spills). The k-selected life history strategy and thus slower population growth rate also reduces the ability of the GOMx Bryde's whale population to recover from low abundance and its ability to withstand additional sources of mortality. Thus, this small population currently faces a host of risks intrinsic to its low abundance that places the GOMx Bryde's whale at greater risk of extinction than if its population were larger. Further, while small population size alone in this instance indicates a high extinction risk, the SRT also relied on other factors in evaluating the GOMx Bryde's whale's extinction risk. In the proposed rule, we summarized the SRT's extinction risk assessment, and explained our determination that the GOMx Bryde's whale is presently in

endanger of extinction (
i.e.,
meets the definition of endangered) throughout all of its range due to multiple threats including energy exploration, development, and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise. We also noted that due to this species' small population size and restricted range, it is particularly susceptible to those threats, and explained the risks inherent to a small population size. Thus, we agree with the commenters who stated that the need for protection under the ESA is immediate.

The SRT considered Franklin's (1980) rule of thumb in evaluating the species' extinction risk. Franklin (1980) proposed the “50/500” rule that populations with an effective population size under 50 are near extinction and that populations with an effective size of fewer than 500 are at long-term risk of extinction. As explained in the status review, Franklin also suggested that populations with fewer than 250 mature individuals are at a level where genetic diversity will erode due to genetic drift, leaving the species less fit through time and at long-term risk of extinction (Franklin 1980). The SRT determined that a dangerously small population for GOMx Bryde's whales would be defined as a population either having equal to or fewer than 250 mature individuals or a population found in a spatial configuration vulnerable to a single catastrophic event that could drive the taxon to near extinction (
i.e.,
≤ 50 mature individuals) in a very short time (for more discussion see Rosel
et al.
2016). All recent studies have provided estimates that indicate the total abundance of the GOMx Bryde's whale is fewer than 100 individuals, with 50 or fewer being mature. These low numbers support our listing determination for the Bryde's whale.

Comments on Identification of the GOMx Bryde's Whale as a Subspecies

Comment 5:
Joint industry commenters stated that NMFS improperly “created” a subspecies for the purpose of this listing and that NMFS does not have the authority under the ESA to create a subspecies for listing before independent scientific organizations have officially recognized the classification. The commenters suggest that the Services' joint regulations implementing the ESA at 50 CFR 424.11(a), which provide standards for the Services to apply when recognizing taxonomic groups eligible for listing under the ESA, are outside the Services' authority under the ESA. The commenters stated that NMFS' ability to create taxonomic units for purpose of listing under the ESA is largely limited to the creation of DPSs, and in addition to reliance on the best available scientific information, the factors used to recognize a DPS are the minimal criteria that should guide NMFS' recognition of taxonomic classifications, to the extent the agency has the authority to make such a recognition.

Response:
The ESA defines “species” as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. Section 3(16);
see also
50 CFR 424.02 (defining species). Under the Services' joint regulations implementing the ESA, in determining whether a particular taxon or population is a species for the purposes of the Act, the Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group. 50 CFR 424.11(a). The Services issued this regulation based on their authority under the ESA. The regulation does not impermissibly expand the Services' authority to list species, but rather explains how the Services will exercise their discretion to determine whether an entity qualifies as a “species” as defined in the ESA and is thus eligible for listing.
See, e.g., Am. Wildlands
v.
Kempthorne,
478 F. Supp. 2d 92 (D.D.C. 2007).

Under the regulations, we can rely on “standard taxonomic distinctions” as well as our biological expertise and that of the scientific community in determining whether a taxon is a species eligible for listing under the ESA. Thus, neither the statute nor the Services' regulations require formal recognition by independent scientific organizations before we can classify a group of individuals as a subspecies eligible for listing. Instead, such “standard taxonomic distinctions” are just one basis for our classification, and should be relied upon only when they represent the best available scientific information. Likewise, we need not await scientific “consensus” before we can recognize a population as a species eligible for listing.
Alabama-Tombigbee Rivers Coalition
v.
Kempthorne,
477 F.3d 1250, 1260 (11th Cir. 2007) (“Given the nature of taxonomy, it would be surprising if there were not some disagreement about the proper classification of the Alabama sturgeon, but disagreement in the field does not preclude agency decision making.”);
cf. Nw. Ecosystem Alliance
v.
U.S. Fish & Wildlife Serv.,
475 F.3d 1136, 1147 (9th Cir. 2007);
Defenders of Wildlife
v.
Babbitt,
958 F. Supp. 670, 679 (D.D.C. 1997).

For the same reasons, we also disagree with commenters that identifying a DPS pursuant to the DPS Policy is the only means by which we can recognize a taxonomic unit eligible for listing, or that the policy provides the required minimum criteria for determining whether a group of individuals are a “species” eligible for listing under the ESA. Moreover, after determining that the GOMx Bryde's whale should be considered a species under the ESA based on the best available scientific and commercial information, the SRT did consider the relevant factors under the DPS Policy (Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the ESA, 61 FR 4722, February 7, 1996). Under that policy, to identify a DPS, NMFS evaluates the discreteness of the population segment in relation to the remainder of the species to which it belongs and the significance of the population segment to the species to which it belongs (61 FR 4722, 4725, February 7, 1996). The SRT explained that although the GOMx Bryde's whales would meet the discreteness and significance criteria for a DPS, the best available scientific and commercial information indicates the GOMx Bryde's whale is a taxonomically distinct subspecies. Because we determined the GOMx Bryde's whale is a taxonomically distinct subspecies, we did not further consider whether the GOMx Bryde's whale population is a DPS.

Comment 6:
Joint industry commenters stated that the proposed rule is invalid because there is no scientific consensus that the GOMx Bryde's whale is a subspecies. NMFS has not presented evidence that any scientific organization has adopted or is considering adopting the classification. The commenters noted that the Society of Marine Mammalogy Committee on Taxonomy (SMM Committee) does not include GOMx Bryde's whale on its list of species and subspecies, which confirms they do not view the GOMx Bryde's whale as a subspecies. The commenters also noted that the International Whaling Commission (IWC) and the International Union for Conservation of Nature do not recognize the GOMx Bryde's whale as a subspecies. NMFS has previously appropriately recognized and relied on a subspecies classification before it was adopted by the larger scientific community in other listing rules, but in those cases, NMFS' view of the taxonomy mirrored scientific consensus.

Therefore, the commenters concluded, the best available scientific information is that the GOMx Bryde's whale is not a subspecies. The State of Louisiana commented that they could not support the proposed rule because the subspecies determination is based in a single publication (referring to Rosel and Wilcox (2014)).

Response:
We find that the best scientific and commercial information available demonstrates that the GOMx Bryde's whale is a taxonomically distinct subspecies from other Bryde's whales worldwide and that we need not await further confirmation from other scientific organizations before recognizing the population as a subspecies and listing it as an endangered species under the ESA. As we explained in the proposed rule, at the request of the SRT, the SMM Committee provided their scientific opinion that it is highly likely that the Bryde's whales in the Gulf of Mexico are at least an undescribed subspecies of what is currently recognized as
B. edeni.
In May 2016, the SMM Committee updated its list of marine mammal species and subspecies and stated that a new subspecies-level taxonomic action for Bryde's whale based on Rosel and Wilcox (2014) may be proposed and addressed in a future update to the Society of Marine Mammalogy list of marine mammal species and subspecies. The most recent update from July 2017 continues to note that the action is forthcoming (Society for Marine Mammalogy, Committee on Taxonomy, List of Marine Mammal Species and Subspecies, 2017,
https://www.marinemammalscience.org/species-information/list-marine-mammal-species-subspecies/
). In the report from their recent meeting in May 2017, the IWC Scientific Committee agreed that GOMx Bryde's whale ranked as at least a separate subspecies, and possibly a species, and stated their concern about its continued survival. Further, the IWC recommended that “U.S. authorities use all available legal and regulatory tools to provide the maximum protection for this population” (IWC, Report of the Scientific Committee, 2017, available at
https://iwc.int/scientific-committee-report-published
). Although we do not need to await scientific consensus to validate our view of the best available scientific information, nor does the ESA require us to delay a listing determination for such consensus (see also response to Comment 5), we find that there is substantial support within the scientific community that the GOMx Bryde's whale is at least a subspecies. Furthermore, as the commenters noted, NMFS has previously recognized subspecies classifications before their formal adoption by the larger scientific community—for example in identifying the appropriate reference taxon for completing a DPS analysis for Southern Resident killer whales (70 FR 69903, Nov. 18, 2005) and humpback whales (81 FR 62260, Sept. 8, 2016). In these cases, we listed DPSs of unrecognized subspecies of Resident killer whales in the North Pacific and several unrecognized subspecies of humpback whales.

Finally, we did not base our determination that the GOMx Bryde's whale is a subspecies solely on Rosel and Wilcox (2014); we also considered the opinion of scientific experts, including the SMM Committee, as discussed above. In addition, we disagree that the mtDNA evidence in Rosel and Wilcox (2014) is insufficient to use in establishing that the GOMx Bryde's whale is a subspecies. Rosel and Wilcox (2014) found that GOMx Bryde's whales exhibited very low levels of genetic diversity and are evolutionarily distinct from all other members of the Bryde's whale complex based on mtDNA and phylogenetic (evolutionary) analyses. As we explained in the proposed rule, Rosel and Wilcox (2014) concluded that this suggests a unique evolutionary trajectory for the Gulf of Mexico population of Bryde's whale, worthy of its own taxonomic standing, and we agree. We conclude the best scientific and commercial information available demonstrates that the Bryde's whale in the Gulf of Mexico is a subspecies.

Comment 7:
Joint industry commenters stated that the SRT's request to the SMM Committee was too narrow to generate a response that could validate the SRT's conclusion that the GOMx Bryde's whale was a new subspecies. In particular, the commenters asserted that the SRT should have requested that the SMM Committee consider the taxonomic status of Bryde's whales in the Gulf of Mexico and officially recognize the GOMx Bryde's whale as a separate subspecies. In addition, the commenters stated that the SRT provided irrelevant background information and omitted additional relevant information such as the population estimate in Roberts
et al.,
(2016), or evidence of Bryde's whales in the Atlantic. Finally, given the overlap between members of the SRT and the SMM Committee, any opinion from the SMM Committee could not validate the SRT's conclusion or be used to demonstrate that the conclusion was shared among multiple, independent sources.

Response:
We disagree and find that the question was appropriately posed to the SMM Committee. The SRT asked the SMM Committee whether the Bryde's whales in the Gulf of Mexico are “likely to belong to at least an undescribed subspecies of what is currently recognized as
Balaenoptera edeni.
” The SRT also asked the SMM Committee to rate the likelihood of subspecies status as high or low based on their expert opinion (see Appendix 1, Rosel
et al.,
(2016), containing the document sent to the SMM Committee). The SRT sought an additional expert opinion on the taxonomic status of the GOMx Bryde's whale to inform their conclusions, which were not yet finalized. Thus, the SRT posed the general question seeking the SMM Committee's view of the taxonomic status and the certainty in their conclusion. The SMM Committee could decide to update their list after reviewing the request, and have indicated that they intend to do so, based on the findings in Rosel and Wilcox (2014).

The request to the SMM Committee included relevant information and omitted no key information necessary to assess the taxonomic status of the GOMx Bryde's whale. The request contained the relevant background on the ESA listing petition that initiated the species status review, a summary of information on the species, including population estimates, and presented the genetic evidence, with a list of references, including Rosel and Wilcox (2014), required to assess the taxonomic status of those Bryde's whales in the Gulf of Mexico relative to Bryde's whales worldwide. The document sent to the SMM Committee noted the strandings in the Atlantic when discussing Rosel and Wilcox (2014). Thus, the SMM Committee was provided evidence of Bryde's whales in the Atlantic.

Species, subspecies, and DPSs can be delineated based on morphological traits, behavior, and genetics; such lines of evidence are not mutually exclusive. We do not agree that it was necessary for the SRT to provide the SMM the Roberts
et al.
(2016) abundance estimates for Bryde's whales from their U.S. East Coast or Gulf of Mexico models. First, subspecies delineation is not contingent upon abundance estimates or population size. Secondly, NMFS has records of six stranded Bryde's whales along the U.S. East Coast from 1923 to present, but considers these extralimital occurrences. Comparisons of mtDNA from available U.S. East Coast strandings (n=2)

matched that of Bryde's whales found in the Gulf of Mexico. Last, no Bryde's whales have been definitively recorded in the U.S. Atlantic during aerial and shipboard surveys conducted between 1994 and 2016, nor have any Bryde's whales been definitively detected by acoustic surveys conducted along the U.S. Atlantic Coast. While Roberts
et al.
(2016) treated unidentified sightings of baleen whales in the U.S. Atlantic as possibly Bryde's whales or sei whales, there is no definitive evidence that those sightings might be Bryde's whales, much less that they form a Atlantic population. For these reasons, we conclude that the Robert's
et al.
(2016) abundance estimates were not relevant to the question of whether Bryde's whales in the Gulf of Mexico are likely to belong to an undescribed subspecies.

Finally, as explained in the proposed rule, nine SMM Committee members, none of whom were on the SRT, provided their independent opinion. Thus, we find that the SRT's conclusions and the basis for our listing determination are shared among different experts in the field.

Comment 8:
Joint industry commenters stated that NMFS improperly relied on Rosel and Wilcox (2014) to determine that the GOMx Bryde's whale is a genetically distinct subspecies, given commenters' concerns with the potential for misidentification of whales and samples within the Bryde's whale complex. According to the commenters, Rosel and Wilcox (2014) based their conclusion on a comparison of samples from 23 individuals assumed to be GOMx Bryde's whales, including 21 individual Bryde's whales sampled in the Gulf of Mexico and two individuals stranded in the North Atlantic, to samples from four whales encountered off the coast of Japan. According to the commenters, the authors analyzed three new DNA samples obtained from individuals stranded in the Gulf of Mexico and two new samples from individuals stranded in the Northwest Atlantic, but the source for the remaining samples of whales from the Gulf of Mexico population was not identified. The commenters stated that the samples may have been taken from GenBank, which they stated increases the likelihood of misidentification due to the contradictory nomenclature used to identify species samples suspected to be in the Bryde's whale complex. In addition, the commenters state that the reference whales sampled from the waters surrounding Japan were assigned their classifications based on the disputed morphological analysis proposed in Wada
et al.
(2003), and this is not an appropriate reference set. Commenters also stated that Rosel and Wilcox (2014) indicate that
B. e. brydei
is more closely related to sei whales than to
B. e. edeni.

Response:
We disagree with the commenters' characterization of the samples used in Rosel and Wilcox (2014) and statement that we improperly relied on this study in determining that the GOMx Bryde's whale is a subspecies. In making our determination, we are relying on the best available scientific information, including Rosel and Wilcox (2014) and the SMM Committee's expert opinion on the taxonomic status, and the commenters have not identified any additional or superior scientific information. As stated in Rosel and Wilcox (2014), the authors originally extracted and sequenced DNA from 23 Bryde's whales encountered and sampled in the Gulf of Mexico (including three stranded whales) and two whales that stranded in the western North Atlantic. Regarding the whales encountered and sampled in the Gulf of Mexico, they identified two sets of duplicates, indicating that two whales had been sampled twice. After excluding these duplicates, the authors analyzed 23 samples representing 23 individuals from the Gulf of Mexico population—
i.e.,
the 21 unique individuals sampled in the Gulf of Mexico and the two individuals stranded in the western North Atlantic —to determine genetic similarity among those whales and to compare DNA sequence data collected from individuals encountered worldwide. In particular, they compared the 23 samples of the Gulf of Mexico population to data from 472 individuals representing Bryde's whale complex samples worldwide, not just four from the coast of Japan (see Rosel and Wilcox, 2014, supplement at:
www.int-res.com/articles/suppl/n025p019_supp.pdf
). The worldwide scope of samples used in the analyses is illustrated in Figure 4 of Rosel and Wilcox (2014). The authors determined that mtDNA diversity was very low among the Gulf of Mexico whales and that the Gulf of Mexico whales were phylogenetically distinct from all other Bryde's whales that have been examined, and we agree with this analysis.

With respect to the origin of the samples from the whales encountered in the Gulf of Mexico (not the individuals that stranded in the Gulf of Mexico and North Atlantic), as stated in the Results section of Rosel and Wilcox (2014), the samples were obtained by scientists during field surveys and the genetic data from those samples was later submitted to GenBank. The worldwide samples were obtained from GenBank, however, we do not agree with the commenters that the samples were misidentified in Rosel and Wilcox (2014). Samples from species within the Bryde's whale complex in GenBank may be labeled based on evolving taxonomy. For example, in 2003, Wada
et al.
(2003) identified another species in the Bryde's complex,
B. omurai.
Therefore, prior to 2003, samples could not be submitted to GenBank under that name. Furthermore, GenBank currently only recognizes the two species within the complex,
B. edeni
and
B. omurai,
and does not have an option to submit samples under the subspecies of
B. edeni, B. edeni edeni
or
B. edeni brydei,
even though the scientific community recognizes that these are two taxonomically distinct subspecies of
B. edeni.

Rosel and Wilcox (2014) noted the evolving taxonomy. To assign names to the different groupings identified in their phylogenetic analysis (
i.e.,
to assign a taxonomic classification to each clade or grouping of the phylogenetic tree), Rosel and Wilcox (2014) used the DNA sequences from Sasaki
et al.
(2006); they did not rely on how the samples were labeled in GenBank or otherwise identified. Sasaki
et al.
(2006) sequenced 4 samples from whales encountered off Japan, meaning they identified a genetic sequence applicable to each. These whales were morphologically identified as
B. edeni edeni, B. edeni brydei,
and
B. omurai
following Wada
et al.
(2003). The phylogenetic analysis in Rosel and Wilcox (2014) consistently showed that GOMx Bryde's whales grouped together as a separate clade (or group) on the phylogenetic tree, regardless of how those clades would be taxonomically identified or named. This illustrates their phylogenetic distinctiveness. Rosel and Wilcox (2014) also performed a character attributes analysis on the samples, and this analysis illustrated that there are multiple diagnostic differences in mtDNA control region sequences among members of the Bryde's whale complex (
i.e., B. omurai, B. edeni edeni,
and
B. edeni brydei
), making correct identification of sequences straightforward. Therefore, we find that the information from the GenBank samples as applied by Rosel and Wilcox (2014) is reliable.

We also disagree that the analysis in Rosel and Wilcox (2014) is flawed because of its reliance on Wada
et al.
(2003) and Sasaki
et al.,
(2006). As noted in Rosel and Wilcox (2014), taxonomic uncertainties exist as to whether the
B. e. edeni
and
B. e. brydei,

the two recognized subspecies of
B.edeni,
should be recognized as full species, not subspecies, as suggested in Wada
et al.
(2003). The ongoing discussion within the taxonomic community as to the number of species and subspecies within the Bryde's whale complex is not directly relevant to our listing determination for the GOMx Bryde's whale. Until that issue is resolved, the accepted taxonomy is that there are two species in the complex,
B. edeni
and
B. omurai,
and two subspecies of
B. edeni, B.e. edeni
and
B.e. brydei.
The best available scientific information establishes that the GOMx Bryde's whale is a genetically isolated unit and is distinct from other whales within the Bryde's whale complex (
B.e. edeni, B.e. brydei,
and
B. omurai
). Thus, based on the current recognized taxonomic standing, we determined it is appropriate to list the GOMx Bryde's whales as a subspecies of
B. edeni.
Rosel and Wilcox (2014) did not indicate that
B. edeni brydei
is more closely related to sei whales than to
B. e. edeni.
This study found significant differences between GOMx Bryde's whale haplotypes and those from sei whales and the two recognized Bryde's whale subspecies (
B. edeni edeni
and
B. edeni brydei
).

Comment 9:
Industry commenters stated that the disputed taxonomic status of the Bryde's whale complex casts doubt on the decision to recognize the GOMx Bryde's whale as a genetically distinct subspecies. In support, the commenters stated that Wada
et al.
(2003) concluded that
B. e. brydei, B. e. edeni, and B. omurai
are three species based on morphology; that Sazaki (2006) used genetic data to confirm those results, but suggested that
B. e. edeni
and
B. e. brydei
may be in the same genetic complex as the sei whale (
Balaenoptera borealis
); and that Kato and Perrin (2009) evaluated Wada
et al.
(2003) and Sazaki (2006) and questioned the suggestion that
B. e. edeni
and
B. e. brydei
should be considered full species. The commenters stated that Kato and Perrin (2009) noted that these studies are based on discrete regions and that global studies have to be undertaken. The commenters stated that the Rosel and Wilcox (2014) study does not settle this taxonomic question.

Response:
As explained in the status review, the scientific community has been considering whether the two recognized subspecies of Bryde's whales, Eden's whales (
B. e. edeni
) and Bryde's whales (
B. e. brydei
), should be categorized as two different species. In a morphological comparison of Omura's whale (
B. omurai
) with other members of the Bryde's whale complex, Wada
et al.
(2003) suggested that
B. omurai
and the recognized subspecies (
i.e., B. e. edeni
and
B. e. brydei
) should be considered three distinct species:
B. omurai, B. edeni,
and
B. brydei.
The morphological work of Wada
et al.
(2003) is not disputed. That work resulted in the naming of a new species, Omura's whale,
B. omurai,
that has been well accepted by the cetacean research community, including the IWC. Omura's whale,
B. omurai,
is on the official list of marine mammal species curated by the SMM. Sasaki's
et al.
(2006) genetic analysis supported the morphological findings in Wada
et al.
(2003), which indicated that Omura's whale (
B. omurai
) is a distinct species, and together these analyses suggest that the species has long been on a separate evolutionary pathway. The SMM Committee currently recognizes Omura's whale species,
B. omurai,
and a single Bryde's whale species,
B. edeni,
and is awaiting further analysis of the two Bryde's whale subspecies (
i.e., B. e. edeni
and
B. e. brydei
) to determine whether these two recognized subspecies are actually two separate species. We reviewed Kato and Perrin (2009), and we conclude that it continues the discussions related to how many species, not subspecies, are recognized within the complex. However, we do not believe Kato and Perrin (2009) call into question our determination that the GOMx Bryde's whale is a subspecies of Bryde's whales (
B. edeni
). As explained in response to Comment 8, Rosel and Wilcox (2014) relied on the accepted taxonomy—that there are two species in the complex,
B. edeni
and
B. omurai,
and two subspecies of
B. edeni, B.e. edeni
and
B.e. brydei
—and found that the GOMx Bryde's whale is genetically isolated and is distinct from other whales within the Bryde's whale complex such that it should be classified as a subspecies of
B. edeni.

Comment 10:
Joint industry commenters stated that the best scientific information, including Rosel and Wilcox (2014), shows that GOMx Bryde's whales are genetically indistinct from whales in the North Atlantic Ocean and possibly elsewhere and thus may be part of a larger, discontinuous population, with population connectivity aligning with ocean currents. Commenters stated that Rosel and Wilcox (2014) should not have relied on samples from GenBank because those samples may be mislabeled or misidentified, and that without the samples, the study is an evaluation of five samples, three from individuals stranded in the Gulf of Mexico and two from individuals stranded in the North Atlantic. Because two of the five samples (40 percent) used in Rosel and Wilcox (2014) were from whales in the North Atlantic that were found to be genetically identical to those in the Gulf of Mexico, the study suggests there is a discontinuous population across the Gulf of Mexico and North Atlantic. The commenters do not agree that the two North Atlantic samples were stray Bryde's whales from the Gulf of Mexico that had stranded in the Atlantic. In addition, studies published since 2014 identifying the presence of subspecies
B.e. brydei
in the southern Caribbean and southern Brazil, and observations of
B. omurai
in northern Brazil, West Africa, and off Madagascar, establish that the GOMx Bryde's whales could be connected to a larger, unidentified discontinuous population.

Response:
As described herein, the total number of unique genetic samples of GOMx Bryde's whales used in Rosel and Wilcox (2014) was 23; of which 20 were from skin biopsies obtained during NMFS cetacean surveys in the Gulf of Mexico and three were tissue samples from stranded animals (one from the Gulf of Mexico and two from the Southeast U.S. Atlantic coast). Less than nine percent of the samples from the Gulf of Mexico population were from the Atlantic, not 40 percent. The sequences from these samples were submitted to GenBank as part of the publication process for Rosel and Wilcox (2014). We disagree that these samples need to be disregarded.

We do not believe that the GOMx Bryde's whales are part of a larger group of interconnected populations. If that were the case, genetic diversity would be expected to be much higher than what was found because there would be genetic exchange between populations. The two stranded animals from the Southeast U.S. Atlantic coast had identical DNA sequences to all the Bryde's whales from the Gulf of Mexico over the 375 base pair (bp) fragment that was the primary alignment used for all analyses, and this sequence differed from the worldwide samples. Therefore, NMFS concurs with Rosel and Wilcox (2014) that the two stranded whales from North Carolina and South Carolina are GOMx Bryde's whales. Rosel and Wilcox (2014) also examined genetic samples from other regions in the Atlantic, including the Azores and Canary Islands, and more recently the southern Caribbean and Brazil, and found that these samples were clearly genetically distinct from the whales from the Gulf of Mexico, including the

two North Atlantic strandings. Thus, we disagree that the GOMx Bryde's whale could be part of a much larger population existing elsewhere. Nor do we find that the genetic similarity of the whales stranded on the east coast of the United States suggests there is a discontinuous population of Bryde's whales across the Gulf of Mexico and North Atlantic. Species resident in the Gulf of Mexico may strand in the Atlantic. Equally plausible is that the individuals were sick and/or injured, but alive, and swam out of the Gulf of Mexico, with the currents, and stranded along the east coast of the United States. The most recent recorded stranding of a GOMx Bryde's whale along the east coast was a whale that stranded in North Carolina in 2003. It was entangled in black polypropylene line and was extremely emaciated. The cause of stranding for other whales is unavailable. Extralimital strandings on the Atlantic Coast of whales from the Gulf of Mexico and other areas are possible (Mead 1977). Similarly, strandings in the Gulf of Mexico have been documented for several individuals of multiple baleen whale species not routinely seen there (Jefferson and Schiro 1997). In addition, north Atlantic right whales are typically found in the western North Atlantic; however, a few extralimital sightings have occurred in the Gulf of Mexico (Ward
et al.
2011). For all of these reasons, NMFS believes the best available information suggests the two GOMx Bryde's whales that stranded along the Southeast U.S. Atlantic represent extralimital occurrences.

Commenters presented no additional information on GOMx Bryde's whale distribution that casts doubt on our findings. The studies related to
B.e. brydei
(Luksenburg
et al.,
2015; Pastene
et al.,
2015) were considered in the status review. The SRT included these studies, among others, in the description of the distribution and habitat use of
B.e. brydei
in the Atlantic Ocean in the status review (Rosel
et al.,
2016). The studies the commenter cites on
B. omurai
(Cypriano-Souza, 2016; Jung 2016; Cerchio
et al.,
2015) are not part of the status review or proposed rule because
B. omurai
is recognized as an entirely different species and thus this information does not add to our understanding of the distribution of the GOMx Bryde's whale or whales within
B. edeni.

Comment 11:
Joint industry commenters questioned NMFS' reliance on Rosel and Wilcox (2014) because of its reliance on differences in mtDNA between species from the Gulf of Mexico and elsewhere. The commenters stated that genetic data alone are rarely sufficient to make a taxonomic distinction and are insufficient in this instance. The commenters stated that subspecies are traditionally defined by morphological traits, color variation, or behavior differences and that GOMx Bryde's whales are morphologically identical to Bryde's whales worldwide. Even if the mtDNA patterns showed a statistically significant differentiation between oceans, mtDNA, which is maternally inherited, cannot alone describe population structure without additional information on male and female movement patterns. The commenters stated that NMFS recognized this fact in its “Not Warranted” 12-month Finding on a Petition to List Sperm Whales in the Gulf of Mexico as a Distinct Population Segment (79 FR 68032). The commenters further stated that the difference in mtDNA may indicate discreteness in populations where movement patterns of male and female are the same, but these patterns are not known for Bryde's whales. According to the commenter, the limited Bryde's whale tagging data and migratory patterns are disputed, but commenters state that recent satellite tracking data of two
B. edeni
whales in the North Pacific travelling longer distances than previously known demonstrates an increased potential for population connectivity over long distances. Thus, the commenters stated that a comprehensive analysis of genetic differentiation requires more extensive evaluation of paternally inherited genes.

Response:
We find that reliance on mtDNA evaluation to support the listing is appropriate. Rosel and Wilcox (2014) looked at differences among mtDNA samples in a control region as well as differences in other markers (nuclear microsatellite loci) to evaluate the genetic diversity of Bryde's whales in the Gulf of Mexico and concluded that the low level of differentiation, as well as the differences between of those Gulf of Mexico whales and other members of the Bryde's whale complex, suggest they are an isolated unit. We agree with those findings. In this case, it is appropriate to look at the differences in mtDNA to determine the genetic distinctiveness of the Gulf of Mexico Bryde's whales relative to each other, and to the worldwide complex. As we explained in our determination concerning sperm whales in the Gulf of Mexico (61 FR 4722; February 7, 1996), mtDNA may indicate that populations are discrete (as that term is used in our DPS Policy) where male and female movement patterns are the same. However, because mtDNA information is maternally inherited, in species where female and male movement patterns differ, as in the case of sperm whales for example, analysis of nuclear DNA (nDNA), which is inherited from both parents, may indicate that the populations are not discrete (see
e.g.,
loggerhead sea turtle, 68 FR 53947, September 15, 2003, at 53950-51 and Conant
et al.,
2009, at 18, 22, 25-28; southern resident killer whale, Krahn
et al.,
2002, at 23-30). Thus, for species in which male and female movement patterns differ, mtDNA is not likely to be sufficient to evaluate the discreteness of the population or to determine their degree of genetic differentiation. In our determination concerning sperm whales, we found that male and female movement patterns differ. Due to the wide ranging nature of male sperm whales, males from one population may breed with females from other populations. Thus, in the case of sperm whales, we concluded that maternally-inherited mtDNA was not sufficient to indicate populations are discrete. Unlike the sperm whales in the Gulf of Mexico, visual surveys (Waring
et al.,
2013) and acoustic (Rice
et al.,
2014) data indicate that GOMx Bryde's whales are year-round residents within the Gulf of Mexico. Available evidence indicates that, excluding a few extralimital occurrences into the Atlantic from the Gulf of Mexico, the population is primarily distributed within the northeastern Gulf of Mexico and distinct from other Bryde's whale populations (Rosel
et al.,
2016). Extralimital occurrences have been observed in other marine mammal species. For example, the North Atlantic right whales are typically found in the western North Atlantic; however, a few extralimital occurrences have been recorded in the Gulf of Mexico (Ward
et al.
2011). We agree that GOMx Bryde's whales may strand dead in the U.S. Atlantic; however, we do not have, nor have the commenters presented, evidence to support the claim that GOMx Bryde's whales are interbreeding with other populations of Bryde's whales. In addition, Bryde's whales have not been sighted in the U.S. Atlantic during aerial and shipboard surveys conducted from 1994 to present, nor have we documented any definitive acoustic detection of Bryde's whales along the U.S. Atlantic Coast. Furthermore, the extremely high number of fixed genetic differences between the GOMx Bryde's whales and all other Bryde's whales sampled worldwide is indicative of an isolated unit. If male Bryde's whales were entering the Gulf of Mexico from

nearby populations, they would be expected to bring the mtDNA haplotypes of that population. The dataset in Rosel and Wilcox (2014) consisted of a near equal mix of males and females with both sexes collected across seasons indicating there is not a bias against males in the dataset that might arise if males were only present in the Gulf of Mexico during the breeding season. If the Bryde's whales in the Gulf of Mexico were part of a larger more broadly distributed population, the haplotype diversity would be expected to be larger and the nuclear microsatellite diversity would also be expected to be higher. Thus, mtDNA, without additional information from nDNA, can be used to evaluate their genetic distinctiveness. Further, the high level of genetic divergence of GOMx Bryde's whales when compared with the two recognized Bryde's whale subspecies and sei whales suggests that GOMx Bryde's whales have been isolated for a relatively long period of time and are not interbreeding with other Bryde's whale populations. Species, subspecies, and DPSs can be delineated based on morphological traits, behavior, and genetics; such lines of evidence are not mutually exclusive. Thus, it is appropriate to rely on genetic data, including mtDNA information, to support our subspecies determination.

The commenters also state that knowledge of the Bryde's whale movement patterns is evolving, and reference Murase
et al.
(2015). Murase
et al.
(2015) found that North Pacific Bryde's whales may transition from one known feeding area to another known feeding area during the summer months. The distance traveled between the known feeding areas is consistent with the known movements of the North Pacific Bryde's whale population. Murase
et al.
(2015) indicates that the timing of those movements may differ from what was previously believed, but it does not report longer distance movements than what was already known. This study is not relevant to our understanding of movement patterns for the GOMx Bryde's whale. We find that the evidence supports the determination that the GOMx Bryde's whales are a resident population that inhabits the northeastern Gulf of Mexico year round.

Comment 12:
Joint industry commenters stated that NMFS should not rely on Rosel and Wilcox (2014) because the study did not establish that the GOMx Bryde's whale is a subspecies because it does not have the requisite marked distinction. Further, commenters state that Rosel and Wilcox (2014) did not identify what the Gulf of Mexico population is distinct from.

Response:
Commenters appear to be referring to the Services' joint DPS Policy (61 FR 4722, February 7, 1996) when stating that there is a need for a population to exhibit some amount of “marked distinction.” we determined that the GOMx Bryde's whale is a subspecies of the globally distributed Bryde's whale, based on the genetic analyses in Rosel and Wilcox (2014), the conclusions in the status review, and the expert opinion of the SMM Committee. As we explained in response to Comment 5, because we determined the GOMx Bryde's whale is a subspecies of
B. edeni,
we did not further analyze whether it would qualify as a DPS. Thus, the commenters are incorrect in their assertion that NMFS did not meet the requisite criteria of our DPS policy as we did not conduct a DPS analysis.

Comments on Bryde's Whale Distribution and Abundance

Comment 13:
Joint industry commenters stated that an increase in ocean temperatures could substantially expand the Bryde's whale's global range. The commenters discussed that globally, Bryde's whales are most frequently found in warm temperate waters and intermittent sightings of the Bryde's whales outside areas where these whales are frequently observed (between 40°N and 40°S) either indicates a broader distribution than what has been described or that distribution is connected to larger-scale climate variability and trends.

Response:
Based on the best available commercial and scientific information as summarized in Rosel
et al.
(2016), we have determined that Bryde's whales in the Gulf of Mexico are distinct from the globally distributed Bryde's whale, and that those whales in the Gulf of Mexico are limited to the Biological Important Area (BIA) (see the Distribution section for a full description of the BIA). The best available scientific information suggests that the GOMx Bryde's whale has been isolated for some time from other Bryde's whale populations so their ability to disperse to or colonize new habitats in response to increasing ocean temperatures may be limited, irrespective of whether other members of the global Bryde's whale complex may be able to do so. We do not have any evidence to suggest that the GOMx Bryde's whale's distribution or range is shifting or expanding in response to climate change or that this population's distribution is connected to larger scale climate variability. In addition, we cannot predict whether or how the GOMx Bryde's whale's range may shift in response to climate change or whether new threats may arise resulting from climate change. Therefore, we have no basis to change our determination that the GOMx Bryde's whale is not presently endangered based on possible future range shifts in the GOMx Bryde's whale's distribution or possible future threats from climate change.

Comment 14:
Joint industry commenters stated that NMFS did not have sufficient evidence on which to assess the species' abundance and identify population trends. The commenters stated that NMFS relied on limited survey data, including surveys for other species (bluefin tuna and ichthyoplankton surveys), but information from these surveys is of limited applicability as those surveys may have been conducted at times or in locations or depths when GOMx Bryde's whales are not frequently observed, or may have proceeded without the proper equipment (
e.g.,
acoustic tracking equipment) needed to locate the GOMx Bryde's whale.

Response:
We disagree and find that we do have sufficient information to assess the GOMx Bryde's whale's abundance. As the SRT explained in the status review, 25 years of dedicated cetacean survey effort (shipboard and aerial surveys during 1991-2015) has been developed covering both the continental shelf and oceanic waters of the Gulf of Mexico and U.S. Atlantic east coast (see Figure 3 in Rosel
et al.
2016). These surveys, which are ongoing, cover a broad area, are conducted in all seasons and at various depths, and employ appropriate techniques for observing cetaceans, including Bryde's whales. The SRT considered the information from the dedicated cetacean survey effort, which covered appropriate habitats and employed appropriate techniques for observing Bryde's whales. GOMx Bryde's whale sightings have occurred in all seasons in the northeastern Gulf of Mexico. We did not rely on surveys for other species, including bluefin tuna and ichthyoplankton surveys, to estimate GOMx Bryde's whale abundance. In estimating abundance, the status review discusses the limited number of cetacean surveys in Mexican waters and the southern Gulf of Mexico. The SRT's conclusion that the population size is most likely fewer than 250 mature individuals, and more likely fewer than 100 whales, with 50 or fewer at maturity, accounts for an unknown level of negative bias due to the low survey effort in Mexican and southern Gulf of Mexico waters. We agree with this conclusion. As stated in the status review, population trend data are not available for the GOMx Bryde's

whale, and the SRT did not estimate population trends.

Comment 15:
Joint industry commenters stated that it is unlikely that the De Soto Canyon area is the geographic extent of the GOMx Bryde's whale range. Instead, the commenters stated that the De Soto Canyon is likely a prime observational area among a number of other areas in the Gulf of Mexico and western Atlantic where Bryde's whales are found due to the area's high but unpredictable concentrations of food. In addition, commenters stated that (a) Bryde's whale strandings have occurred throughout the Gulf of Mexico and on the Atlantic Coast as far north as the Chesapeake Bay; (b) Bryde's whale are sighted on and off the continental shelf during surveys of North Carolina and Florida, and throughout the Gulf of Mexico in waters off the coast of Texas and Louisiana; and (c) Bryde's whales have been sighted in Brazil, the Caribbean Sea, and elsewhere. Thus, the commenters stated that concerted survey efforts elsewhere in the world have found Bryde's whales in areas where they were thought not to exist. The commenters stated that the SRT did not address the fact that survey effort outside the De Soto Canyon area, in the U.S. Atlantic and Mexican waters, and outside the De Soto Canyon is limited, and that as a result NMFS did not have sufficient information to conclude the species is absent from those areas.

Response:
We considered and cited the stranding and sighting information that the commenters reference in evaluating the species' distribution and range, which is described in more detail in the status review. The commenters have not provided any new or additional stranding or sighting information that we have not already considered. There has been a concerted survey effort for marine mammals along the U.S. Atlantic coast and in the Gulf of Mexico. We find that the best scientific and commercial information demonstrates that over the past 25 years, the GOMx Bryde's whale has been consistently located along a very narrow depth corridor in the northeastern Gulf of Mexico. There are no confirmed sightings outside of this area, despite a large amount of dedicated marine mammal survey effort that has covered both continental shelf and oceanic waters of the Atlantic Ocean off the southeastern United States and the northern Gulf of Mexico.

In the proposed rule, we acknowledged, as did the SRT, that a small number of unidentified baleen whales were sighted in the north-central and western Gulf of Mexico, and explained that we do not know if those unidentified whales are Bryde's whales. For example, in 1992, a fin whale was identified during an aerial survey off Texas, and in 1992 and 1994, a single baleen whale was sighted along the shelf break in the western Gulf of Mexico during GulfCet surveys. These latter sightings were recorded as Bryde's/sei whale (Rosel
et al.,
2016). In addition, we are aware of five other “baleen whale” reported sightings west of the BIA to the longitude of western Louisiana, from reports from protected species observers and a single citizen sighting (Rosel
et al.,
2016).The SRT noted, and we agree, that these sighting, are difficult to interpret because the information collected during those sightings is insufficient to identify the species. Consequently, we are unable to draw conclusions about the GOMx Bryde's whale's distribution from this information. Thus, we find that the best available scientific evidence indicates that the BIA, located in the De Soto Canyon area of the northeastern Gulf of Mexico, encompasses the current range of GOMx Bryde's whale. We agree with the commenter's observation that the waters in the De Soto Canyon are nutrient rich, productive waters, which contain sources of prey for the GOMx Bryde's whale. However, for the reasons just discussed we do not agree that the De Soto Canyon is merely a prime observational area.

Comment 16:
Joint industry commenters stated that the SRT selectively accounted for estimates of the Bryde's whale population size and that the estimates upon which the SRT relied do not appear to be the best available scientific information. The commenters stated that the SRT relied on population estimates in NMFS' Stock Assessment Reports, which underestimate abundance because they assume all whales in the vicinity of the survey were counted. The commenters stated that the reliability of the estimates in the Stock Assessment Reports are in question given the variation in the population estimates in the reports over time, and the variability cannot be attributed to mortality and reproduction in the population. The commenters stated that the SRT did not take into account the estimate published in Roberts
et al.
(2016), although the commenters do not necessarily endorse the conclusions of those authors. The commenters also stated that it is unclear how the SRT extrapolated and estimated the Gulf-wide population (
i.e.,
likely fewer than 250 mature individuals, and more likely fewer than 100 individuals, with 50 or fewer being mature).

Response:
We find that the population abundance estimates are based on the best available scientific information. The SRT considered abundance estimates contained in published reports of surveys conducted from the early 1990s to 2012; these estimates ranged from 15-44 Bryde's whales in the northern Gulf of Mexico (see Table 2, Rosel
et al.
2016). These abundance estimates were based on data collected through NMFS' cetacean research surveys and by other researchers (
e.g.,
Roberts
et al.
2015a). The proposed rule and status review also discussed other papers by Roberts
et al.
(Roberts
et al.
(2016, 2015a, 2015b) in evaluating the population abundance. As discussed in the status review, the SRT recognized that the most recent abundance estimate in 2015 NMFS Stock Assessment Report (33 individuals, CV = 1.07) was likely negatively biased because it assumed all whales on the track line were sighted. The SRT explained that Roberts
et al.
(2015a and 2016) averaged years of survey data and accounted for not meeting the assumption of sighting all whales on the track lines and concluded that the population was higher—
i.e.,
44 whales (CV = 0.27). Thus, the SRT considered potential bias in abundance estimates that may have contributed to variability in the estimates. The SRT did not attribute variability among the available abundance estimates solely to individuals entering or leaving the population.

Regarding the SRT's extrapolation of a Gulf of Mexico-wide population estimate, the status review, in its discussion of Population Status, stated “the population size is most likely fewer than 100 whales.” The SRT made a conclusion regarding the likely size of the GOMx Bryde's whale's population size after considering all previous abundance estimates, which have ranged from 15 (CV = 1.98) to 44 (CV = 0.27) whales. The SRT noted potential bias in some of the estimates, and did not rely on a single abundance estimate or survey. In developing their conclusions regarding abundance, the SRT considered several elements including previous abundance estimates, available survey information, historical range and current range, and the limited survey effort outside the U.S. Gulf of Mexico. The SRT reached consensus, based on the best available information and their professional expert opinion, that there are fewer than 250 mature individuals, and more than likely the population contains fewer than 100 individuals, with 50 or fewer being mature. We agreed with the SRT's assessment.

Comment 17:
Joint industry commenters stated that other available data, including recent passive acoustic surveys conducted in the De Soto Canyon and carcass recovery rates indicate that GOMx Bryde's whale populations may be higher than NMFS and the SRT have estimated. The commenters stated that acoustic surveys target GOMx Bryde's whales and capture subsurface GOMx Bryde's whales that visual surveys may miss and the relatively high GOMx Bryde's whale acoustic activity seems to be in disagreement with the low number of visual observations made during surveys. Call rates of the GOMx Bryde's cited in Rice
et al.
(2014) and Sirovic
et al.
(2014) are higher when compared to call rates of Bryde's whales in the “Gulf of California” cited in Kerosky
et al.
(2012). The commenters stated that Bryde's whales are considered abundant in the Gulf of California, and higher call rates in the Gulf of Mexico could suggest a higher abundance of the Bryde's whales than in the Gulf of California, or than NMFS assumed in the proposed listing. The commenters also stated that the carcass recovery rates the SRT used to estimate the threat of vessel collisions are likely too high and, when considering the observed stranding rates, cast doubt on the abundance estimates.

Response:
We disagree that the available acoustic data can be compared to, or conflicts with, the visual observations, and that it should be used to estimate abundance. Estimating call rates (
i.e.,
calls per animal, per time period—typically per hour) for baleen whales requires either extended simultaneous visual and acoustic localization studies or multi-day acoustic tag deployments. Using call rates to estimate abundance of a particular population (for example, GOMx Bryde's whales) requires information on the density of the species in the measured area as well as on the location where the measurements were taken and on the sex, age group, behavior state, time of day, and season in which the measurements were taken (Heinemann
et al.,
2016; Marques
et al.,
2013). The acoustic activity of Bryde's whales in the Gulf of Mexico referred to by the commenter (
i.e.,
Rice
et al.,
2014 and Sirovic
et al.,
2014) does not provide this level of information, thus it would not be appropriate to use those data to estimate abundance of the GOMx Bryde's whales. For example, Rice
et al.
(2014) identified Bryde's whale vocalizations to understand spatial and temporal distribution patterns of GOMx Bryde's whales, but this study did not quantify the number of whales in an area or determine whether the calls represented a single or multiple individuals. Sirovic
et al.
(2014) described one call type that was recorded in the presence of GOMx Bryde's whales and produced a time series of the presence of that call in long-term autonomous recordings from the De Soto Canyon in the northern Gulf of Mexico. This study recorded a few tens to just over a hundred calls a week, which is a reasonable number for a small population size and relatively small area of monitoring. However, Sirovic
et al.
(2014) concluded that more targeted recordings are necessary to obtain a call production rate, and additional measurements of call source levels are needed to estimate population size. Kerosky
et al.
(2012) studied the seasonal and inter-annual changes in Bryde's whale presence within the Southern California Bight (not in the Gulf of California as stated by the commenters), and thus reported the number of hours per day where calls were recorded in that area alongside information on sea surface temperature. Bryde's whales produce different call types in different ocean basins, and likely have differing inter-call intervals in different locations. Without information that would allow us to compare call rate information across ocean basins, such as information on relative densities and inter-calling intervals of the different populations, or information on the different environmental conditions in each region that could affect the ability to record the calls, we cannot readily compare the call information in Kerosky
et al.
(2012) to information we have on calls of GOMx Bryde's whales to estimate the relative population size across these regions.

Lastly, it also is not appropriate to use stranding records in the SRT's carcass recovery rate equation to develop an abundance estimate. First, the actual carcass recovery rate for GOMx Bryde's whales is unknown and likely low. The GOMx Bryde's whale is an offshore species and thus carcasses are unlikely to be detected due to factors such as at-sea scavenging, sinking, wind, currents, and stranding in locations where detection is unlikely. Given these uncertainties, any abundance estimate derived from carcass recovery rates would suffer from both unknown biases and un-quantified uncertainty, and therefore cannot be validly compared to estimates derived from line-transect surveys. Secondly, if the carcass recovery rate is fixed, then only mortality rates and abundance will affect the estimated number of observed strandings. The historical mortality rate and abundance of GOMx Bryde's whale is unknown. Thus, historical stranding information cannot inform our understanding of past population size. Without a mortality rate, we cannot determine what percentage of the entire population a single stranding represents. For these reasons, we believe that the dedicated cetacean survey (shipboard and aerial) methodology that NMFS used to inform the abundance estimates in the Stock Assessment Reports is the best available method to estimate abundance. Researchers regularly use this methodology to assess cetacean populations throughout the United States and other parts of the world.

Comment 18:
An industry comment stated that the genetic analysis contained in Rosel and Wilcox (2014) suggests that Bryde's whale abundance in the Gulf of Mexico is underestimated. If the population was as small as we stated, it is unlikely that researchers obtained genetic samples from 23 Bryde's whales and only received two duplicate samples. The low number of duplicate samples suggests that the genetic analysis is flawed because it failed to detect duplicate samples. There is 0.57 percent chance that researchers were able to obtain 23 random samples from a population of 33 whales and have only two duplicates. The commenters calculated a population size between 79 and 125 whales based on 23 random samples containing two duplicates.

Response:
We disagree. Rosel and Wilcox (2014) examined a total of 23 samples (3 stranded and 20 biopsy sampled whales) from the Gulf of Mexico. After collecting the genetic data, the researchers determined that two whales had each been biopsied twice over the years. Therefore, the number of individual whales sampled in the Gulf of Mexico and used in Rosel and Wilcox (2014) mtDNA analysis was 21. In addition, the researchers extracted sequence DNA information from 2 animals from the Gulf of Mexico population that stranded in the North Atlantic. To calculate the commenters' suggested probability that there is only a 0.57 percent chance that 23 random samples from a population of 33 whales would result in only two duplicates, one would have to assume that the same 33 whales were present in the ship-surveyed locations during the approximately 19 years over which samples were collected. However, that assumption raises several concerns. First, the researchers screened which whales to sample. At least during a

given survey year, efforts were made to avoid repeated sampling of individual animals. Therefore, biopsies collected during the same survey are not independent sampling events, but were structured in a way to avoid duplicates. Secondly, annual surveys were not random sampling events. Many encounters with Bryde's whales were during opportunistic encounters rather than samples collected across a randomized trackline. This lack of independence and random sampling prevents the interpretation of capture probabilities and the likelihood of repeated events. Finally, it is unreasonable to evaluate the probability of obtaining duplicates from a set of 33 animals, because the population size is not exactly 33 animals. The sample size may be higher or lower, and individuals may enter and leave the population overtime. Therefore, inferences about re-sampling probabilities based upon a fixed estimate of exactly 33 animals are unreliable.

Comments on Existing Regulatory Mechanisms

Comment 19:
Joint industry commenters stated that NMFS misapplied the analysis mandated under ESA section 4(a)(1), factor D. According to commenters, NMFS concluded that the existing regulatory mechanisms are inadequate because they have not prevented the current status of the GOMx Bryde's whale, or because the species is threatened under other factors such as low abundance and limited distribution. Commenters state that it is inappropriate to rely on estimates of abundance and distribution as a measure of regulatory efficacy without analyzing population trends over time, and that our analysis offered “only the cursory conclusion that any evidence of risk is evidence of the inadequacy of existing regulations.”

Response:
We did not conclude that evidence of low abundance or limited distribution, or any evidence of risk, is evidence of inadequacy of existing regulations. In agreeing with the SRT's conclusion that existing regulatory measures have not prevented the current status of the GOMx Bryde's whale, we were stating that existing regulatory measures are not adequate to address the threats that are contributing to the species extinction risk. We summarized the regulatory mechanisms relevant to the threats that contribute to the species' extinction risk, and evaluated whether any existing regulatory mechanisms will adequately control those threats.

As we stated in the proposed rule, the relevance of existing regulatory mechanisms to extinction risk for an individual species depends on the vulnerability of that species to each of the threats identified under the other section 4(a)(1) factors, and the extent to which regulatory mechanisms are expected to control the threats that are contributing to the species' extinction risk. If GOMx Bryde's whales were not vulnerable to a specific threat (
i.e.,
risk was low), we did not consider that threat under our analysis of the adequacy of regulatory mechanisms. The best available scientific and commercial information establishes that energy exploration, development, and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, anthropogenic noise, and small population concerns, such as Allee effects, demographic and genetic stochasticity, k-selected life history parameters, and stochastic and catastrophic effects are currently threatening the species and contributing to its extinction risk (ESA section 4(a)(1) factors A and E). Consequently, we assessed the adequacy of regulatory mechanisms relative to those threats and determined that there are no existing regulatory mechanisms in place to control those ongoing threats. Population trend information is not necessary to reach this conclusion.

Comment 20:
Joint industry comments stated that existing regulatory mechanisms and industry-driven initiatives sufficiently protect the Bryde's whales because those measures have eliminated the largest historical threat to the species, commercial whaling, and because those measures address each of the threats NMFS identified. In particular, the commenters stated (a) the IWC commercial whaling moratorium prohibits commercial harvest, (b) the Marine Mammal Protection Act (MMPA) prohibits takings, unless NMFS otherwise permits the taking, (c) the Outer Continental Shelf Lands Act (OCSLA) allows the Department of Interior (DOI) to administer mineral exploration, development, and production in a manner that protects natural resources, (d) the Oil Pollution Act (OPA) addresses oil spills (prevention and remediation), (e) the Ports and Waterways Safety Act (PWSA) manages ports and vessel traffic to protect the marine environment, (f) the Clean Water Act (CWA) regulates discharges into U.S. waters and creates pollution control programs, (g) the International Convention for the Regulation of Whaling (ICRW) provides for proper conservation of whale stocks, and (h) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) provides a framework for ensuring international trade in wild animals does not threaten the survival of species in the wild and establishes lists of species and accords them varying degrees of protection based on the level of their endangerment. The commenters stated that NMFS did not consider these laws collectively, and when the laws are taken as a whole, they address and minimize each threat. The commenters also stated that the threat of energy exploration, development, and production is not likely to arise in the future due to the numerous protections in place to protect marine mammals. The moratorium on new lease sales within the EPA will protect Bryde's whales from oil spills and spill response, and recently developed measures “including additional subsea blowout preventer testing, required downhole mechanical barriers, well containment systems, and additional regulatory oversight” make an oil spill event “less likely than in the past.” The commenters also stated that the court's opinion in
Oceana
v.
BOEM,
37 F. Supp. 3d 147 (D.D.C. 2014) confirmed that oil and gas seismic surveys do not injure marine mammals. In addition, industry initiatives prevent oil spills and improve spill responses. A separate commenter stated that existing regulations have been inadequate to protect the GOMx Bryde's whale because, despite general protection under the MMPA, the GOMx Bryde's whale population is estimated at 33 animals, and the MMPA provides no regulatory mechanisms specific to the GOMx Bryde's whale.

Response:
We agree that the IWC commercial whaling moratorium provides significant protection for the GOMx Bryde's whale now. However, we do not agree that Bryde's whales in the Gulf of Mexico are sufficiently protected by the MMPA, OCSLA, OPA, PWSA, CWA, ICRW, or CITES, or other regulatory mechanisms addressed in the proposed rule, including the International Maritime Organization (IMO). We assessed the adequacy of regulatory mechanisms, including the MMPA, OCSLA, OPA, ICRW, CITES, and the IMO-related regulatory mechanisms, relative to the identified threats and determined that there are no existing specific regulatory mechanisms in place to control those threats. For example, there are no IMO-related regulatory mechanisms in the Gulf of Mexico to address the threat of vessel collisions to the GOMx Bryde's whale, which has been identified as one of the primary threats facing the species.

The commenters also stated the PWSA or the CWA are adequate at protecting GOMx Bryde's whales from the ongoing threats. Under the PWSA, the U.S. Coast Guard has implemented two mandatory ship reporting systems in 1999 in an effort to reduce the threat of ship strikes to right whales in U.S. waters of the Atlantic Ocean. The Coast Guard noted that the ship reporting systems have the potential to reduce ship strike of the endangered north Atlantic right whale by providing direct communication of current north Atlantic right whale sighting information to ship operators in high risk areas. However, no similar ship reporting system exists that would protect the GOMx Bryde's whale.

Under the CWA, the Environmental Protection Agency has implemented regulations pertaining to pollutant discharges (see generally 40 CFR ch. I, subchapter D, water programs). The commenters state that the CWA regulates discharges of pollutants into U.S. waters and creates pollution control programs, but did not state which threat this would address. If the commenters believe that the CWA adequately controls the threat of oil spills and spill response, we disagree. As we explained in the proposed rule, OPA is the principal statute governing oil spills in the nation's waterways. Even with OPA, there have been multiple large and numerous small scale oil spills in the Gulf of Mexico (Rosel
et al.,
2016; BSEE accessed November 3, 2017,
https://www.bsee.gov/newsroom
). We found no CWA regulation that would protect the GOMx Bryde's whale from the ongoing threats from oil spills and oil spill response. In addition, we did not identify vessel discharges or discharges from oil and gas activities as a threat that is contributing to the species' extinction risk. We have determined that, taken individually and collectively, the existing regulatory measures discussed or referenced above are inadequate to address the threats to the GOMx Bryde's whale from energy exploration, development, and production, oil spills and oil spill response, fishing gear entanglement, vessel collision, and anthropogenic noise.

We agree with the comment that the moratorium on new lease sales exploration, development, and production in the EPA has provided some level of protection for Bryde's whales by reducing nearby industrialization. However, the moratorium does not adequately address the threat the species' faces from energy exploration, production, and development. The moratorium does not preclude energy exploration (seismic survey activity) and thus seismic survey activity can occur within the EPA and affect the species in their habitat. Moreover, we have found that energy exploration, production, and development in the Gulf of Mexico has broad impacts on the subspecies, through curtailment of its range. The moratorium on activities in the EPA does not affect the energy exploration, production, and development activities in the north-central and southern Gulf of Mexico that likely contributed to the subspecies' range contraction and continues to restrict the whales to the BIA. Further, these activities elsewhere in the Gulf of Mexico have affected the whales. For example, as a result of the 2010 DWH oil spill, an estimated 17 percent of the population of GOMx Bryde's whales was killed, 22 percent of reproductive females experienced reproductive failure, and 18 percent of the population likely suffered adverse health effects due to lung and adrenal disease and poor body condition (DWH MMIQT 2015, DWH Trustees 2016). The activities that led to the DWH oil spill were not subject to the moratorium, and the moratorium thus did not offer the species' protection. In addition, the moratorium expires in 2022. If oil and gas development and production were to move closer to the BIA or expand within the BIA or if seismic survey activity levels near or within the BIA were to increase, extremely detrimental effects on the remaining individuals within the population could result. Exposure to seismic survey noise at energy levels that can cause acute auditory injury may lead to hearing loss and affect individual fitness, and any such effects in a very small population can have significant population level consequences. In addition, chronic noise from seismic survey activity in the species' habitat can mask vocalizations, increase stress, reduce foraging and reproductive success, mask environmental cues, and, at high enough levels, lead to habitat displacement. With regard to the latter, this species appears to have no other available habitat in which to seek refuge. We reached our final listing determination after fully considering existing regulations individually and together and found that existing regulatory mechanisms are not adequately protecting the GOMx Bryde's whale from these threats.

Nothing in the Court's determination that BOEM and NMFS had complied with the ESA with respect to specific lease sales stands for the general proposition that oil and gas seismic surveys do not injure marine mammals.

Finally, we agree with the second commenter that, as we explained in the proposed listing rule, outside of the general protections provided to marine mammals under the MMPA, there are no regulatory mechanisms specific to the GOMx Bryde's whale under the MMPA.

Comment 21:
Joint industry commenters stated that numerous vessel strike avoidance measures are in place to protect Bryde's whales from vessel traffic in the Gulf of Mexico. The commenters referenced a notice to lessees and operators that engage in certain oil and gas activities issued by the Bureau of Ocean Energy Management (BOEM) (BOEM NTL No. 2016-G01). They also state that the MMPA and the PWSA provide NMFS ample, adequate authority to implement regulations mitigating the threat from vessel strikes.

Response:
We do not find that GOMx Bryde's whales are adequately protected from vessel strike. The notice that commenters' cite includes several recommendations to vessel operators engaging in oil and gas activities to avoid vessel strikes with marine mammals and sea turtles; these recommendations were issued through ESA section 7 consultations with BOEM. The recommendations are specific to particular areas and do not apply to other commercial vessel operators. Furthermore, these vessel strike avoidance measures are recommendations and are not a regulatory mechanism that would be considered under the section 4(a)(1) factor D. The ESA does not allow us to consider speculative future regulatory activities, such as those that may occur under MMPA and PWSA authority, when making a listing determination. There are currently no vessel speed restrictions, routing schemes, or reporting requirements or regulations established that protect GOMx Bryde's whales from vessel strike. The commenters provided no information on regulatory mechanisms that exist that we have not considered and that address the threat of ship strike. For these reasons, we conclude that our determination that there are no existing regulations to control the threat of ship strike for the GOMx Bryde's whale is appropriate and valid.

Comment 22:
Joint industry commenters stated that the Magnuson-Steven Fishery Conservation and Management Act (MSA) protects Bryde's whales from prey reduction as a result of overfishing because the MSA has successfully rebuilt overfished

populations and limits future fish stock depletions. Furthermore, Fishery Management Councils are required to consider ecosystem interactions in their management plans.

Response:
As we stated in the proposed rule, the relevance of existing regulatory mechanisms to extinction risk for an individual species depends on the vulnerability of that species to each of the threats identified under the other factors of ESA section 4(a)(1), and the extent to which regulatory mechanisms are expected to control the threats that are contributing to the species' extinction risk. The SRT scored the threat from trophic impacts due to commercial harvest of prey as a “low” severity threat with “low” certainty. NMFS agrees that Bryde's whales are not vulnerable to this particular threat; consequently, we did not evaluate further the adequacy of existing regulatory mechanisms for addressing the threat from trophic impacts.

Comment 23:
Joint industry commenters stated that Bryde's whales are protected from entanglement under the Atlantic Tunas Convention Act because NMFS promulgated regulations under this authority that resulted in an area within De Soto Canyon that is closed to pelagic longline fishing. Commenters state that such fishing is not contributing to Bryde's whale entanglement in that area.

Response:
Pelagic longlines are a known entanglement threat to baleen whales. Approximately two thirds of the BIA has been closed to commercial pelagic longline fishing year-round since 2000, when the Highly Migratory Species (HMS) Atlantic Tunas, Swordfish, and Sharks Fishery Management Plan (FMP) was amended to close the De Soto Canyon Marine Protected Area (65 FR 47214, August 1, 2000). The longline closure implemented under the Atlantic Tunas Convention Act and HMS Atlantic Tunas, Swordfish, and Sharks FMP provides protection to GOMx Bryde's whales from entanglement in longline gear in the De Soto Canyon Marine Protected Area; however, the species is not protected outside of the closed area, and pelagic longline fishing still occurs in the remaining one third of the BIA (Figure 20B in Rosel
et al.,
2016). In addition, other fisheries pose an entanglement risk. There are no restrictions on, or areas within the BIA closed to, bottom longline fishing. The bottom longline component of the Gulf of Mexico reef fish fishery and the Gulf of Mexico shark bottom longline fishery overlap with portions of the Bryde's whale BIA, and bottom longline gear is an entanglement risk to bottom-foraging whales, given that the majority of mainline gear is anchored on the seafloor. The closures discussed above do not fully address the threat of entanglement from these fisheries. In addition, given the species' small population, the species is particularly vulnerable to any threat. Consequently, we have determined that existing regulatory mechanisms are not sufficient to protect Bryde's whales from the threat of entanglement from pelagic and bottom longline gears.

Comments on the Threat of Energy Exploration, Development, and Production

Comment 24:
Some commenters disagreed with NMFS' conclusion that energy exploration, development, and production presents a current threat to GOMx Bryde's whales. Joint industry commenters stated that oil and gas activities currently do not impact areas that we have identified as being important for Bryde's whale conservation. As support, the commenters stated that “whales, including Bryde's whales, have been living in close proximity to the offshore oil and gas industry for decades without any evidence that populations in the Gulf of Mexico are declining or that individuals are being harmed,” citing a 2008 U.S. Department of the Interior Minerals Management Service Sperm Whale Seismic Study in the Gulf of Mexico.

Response:
Energy exploration, development, and production presents a current threat to GOMx Bryde's whales. In the proposed rule, we explained that in the area that we have identified as important for GOMx Bryde's whale conservation, there is currently no oil and gas production activity, with most of the area falling under a moratorium on lease sales until 2022. However, energy exploration, development, and production, including noise associated with those activities, and oil spills and spill response contribute to the habitat modification and curtailment of the species' range. Based on sightings data and extensive survey effort over the past 25 years, there appears to be limited current use by Bryde's whales in the north-central and southern Gulf of Mexico where habitat has been significantly modified with the presence of thousands of oil and gas platforms (Rosel
et al.,
2016). Considering that historical whaling records indicate the GOMx Bryde's whales were distributed more broadly than they are currently, including areas in the north-central and southern Gulf of Mexico, it is likely that this industrialization and associated noise contributed to the range contraction such that their primary habitat is restricted to the BIA within the northeastern Gulf of Mexico. Continued activities and associated noise within the north-central and southern Gulf of Mexico may keep the species limited to this area.

Commenters state that the GOMx Bryde's whale has been living in close proximity to offshore oil and gas for decades without any evidence of harm, based on a 2008 U.S. Department of the Interior Minerals Management Service Sperm Whale Seismic Study in the Gulf of Mexico. In that study, the authors were unable to detect biological effects of seismic activities on sperm whales. However, the authors explain that their study cannot be viewed as conclusive evidence that sperm whales or other ecosystem components have not and are not being affected by oil and gas exploration and production. Further, this reference is entirely related to sperm whales with no mention of Bryde's whales, and did not extrapolate conclusions about the sperm whales to other species. Sperm whales differ from Bryde's whales both acoustically and behaviorally such that their potential for exposure to effects from oil and gas exploration and production are different. Sperm whales are mid-frequency odontocetes, whereas Bryde's whales are low-frequency mysticetes. Oil and gas activities generate low frequency sounds that have a greater potential to overlap with and mask the lower frequency Bryde's whales calls and interfere with the species' communication. Sperm whales also dive to much greater depths than Bryde's whales are known to dive. We do not believe it is appropriate to apply the findings in this study to the GOMx Bryde's whale.

Comment 25:
Joint industry commenters disagreed with our conclusion that oil and gas development in the Gulf of Mexico contributed to restricting the GOMx Bryde's whales' range to the De Soto Canyon. The commenters stated that the best available science indicates that Bryde's whales are not limited to the De Soto Canyon, and neither the SRT nor NMFS have provided scientific support for the conclusion that the species' range is limited. According to the commenter, NMFS improperly drew this conclusion despite a peer reviewer comment that expressed concern over the conclusion, and misstated the SRT's conclusion regarding the restriction of the species' range.

Response:
Whaling records indicate that Bryde's whales were once distributed more widely in the Gulf of Mexico and that their range included

the north-central and southern Gulf of Mexico (Reeves
et al.,
2011). The best available scientific information (
e.g.,
Mullin and Hoggard 2000, Maze-Foley and Mullin 2006, Mullin 2007, DWH MMIQT 2015) indicate that Bryde's whales in the Gulf of Mexico are now restricted primarily to a small region along the continental shelf break in the De Soto Canyon area of the northeastern Gulf of Mexico. Surveys throughout U.S. waters of the Gulf of Mexico over the past 25 years have not identified any Bryde's whales outside this region. Available information indicate that interbreeding between GOMx Bryde's whales and other Bryde's whales is not taking place because of substantial genetic differences between GOMx Bryde's whales and other Bryde's whales (see our responses to Comments 10 and 11). Consequently, NMFS believes the stranding reports U.S. Atlantic represent rare, extralimital occurrences of GOMx Bryde's whales and not additional habitat or expanded distribution. Roberts
et al.
(2015a) modeled Bryde's whale density in the Gulf of Mexico is based on sightings, physiographic, physical, oceanographic, and biological covariates obtained from remote sensing and ocean models to develop a spatially-explicit description of Bryde's whale density. The model shows Bryde's whales' mean year-round density extending from the northeastern Gulf of Mexico, where the highest density in the BIA occurs, into a relatively narrow band of depth in the northern Gulf of Mexico, in areas where the species has been historically observed (see Figure 7, Rosel
et al.,
2016).

As stated in the status review and restated in the proposed rule, the GOMx Bryde's whales habitat in the north-central and southern Gulf of Mexico has been physically modified over time and is highly industrialized as a result of energy exploration, development, and production. We conclude that this modification and industrialization, including associated noise, likely contributed to the GOMx Bryde's whale's range contraction. Peer Reviewer 2 stated that the range contraction may have been due to whaling, in that whaling may have reduced the population and the remaining population may have relocated to the most favorable habitat. The SRT concluded that the GOMx Bryde's whales small population size is not related to historical whaling because the population should have recovered from whaling moralities sustained more than a century ago and we agree. In addition, we do not agree that the proposed rule misstates the conclusions reached by the SRT. The proposed rule is consistent with and directly refers to conclusions in status review regarding the GOMx Bryde's whale's restricted range.

Comment 26:
Joint industry commenters stated that the current level of oil and gas activity in the EPA of the Gulf of Mexico is low, and that this threat is not causing GOMx Bryde's whales to approach the brink of extinction. Currently only 0.3 percent of the EPA is leased through 37 active leases, and only 105 wells have been drilled, none of which have been put into production. The commenters state that production is low, likely for market reasons. For example, only natural gas has been discovered in significant quantities, and natural gas prices in 2016 were at a 20-year low, which likely reduces the incentive to produce from the wells. The commenters state that BOEM has conducted only two lease sales (in 2014 and 2016) in a small portion of the EPA that remained open for leasing, and neither received a bid.

Response:
We agree that the current level of oil and gas activity in the EPA is low. The majority of active lease sales are located in the Western and Central Planning Areas. However, we find it is likely that the high levels of industrialization associated with oil and gas exploration (seismic surveys), development, and production in parts of the species' historical range have contributed to the curtailment of their range to the area recognized as the GOMx Bryde's whale BIA. The low level of energy production and development activities in the EPA is a potential reason why the GOMx Bryde's whale only occurs in the northeastern Gulf of Mexico (
i.e.,
the species is likely avoiding the more industrialized part of their historical range). The range contraction is a current threat to the species. In addition, we note that seismic survey activity was high in the EPA in 2009 and that the activity may return to those high levels following expiration of the moratorium on lease sales in 2022. At those high levels, individual GOMx Bryde's whales would not be able to hear their closest neighbors. Furthermore, the moratorium on lease sales in the EPA does not preclude seismic survey activity in the EPA now, and such activity could increase before the actual expiration of the moratorium.

Comment 27:
Joint industry commenters asserted that NMFS conflated present threats from energy exploration, development, and production with future threats and overestimated the likelihood of oil and gas production activity in the EPA in the future. The commenters stated that EPA is subject to a moratorium on new lease sales that expires in 2022, but even if the lease moratorium in the EPA is lifted in 2022, the future level of energy exploration, development, and production and pipeline activity is largely unknown, and depends on the potential for hydrocarbon discoveries and future market conditions. The commenters stated that most geographically relevant forward-looking analysis is likely BOEM's Environmental Impact Statement (EIS) for multiple lease sales in the Central and Eastern Planning Areas between 2017 and 2022. For areas in the Central and Eastern Planning Areas offered for leasing between 2017 and 2022, BOEM expects that, at most, 67 wells will be drilled, 2 production structures will be installed and removed, and up to 145 miles of pipeline will be laid between 2012 and 2051. The commenters stated all of these activities will take place in waters more than 800 meters (m) deep, which is beyond the depths where Bryde's whales are commonly found. The commenters concluded that even if the moratorium is lifted and the post-2022 lease sales attract bidders and the leases are developed, peak well construction and operation and pipeline development would not occur for many years.

Response:
We did not conflate present threats from energy exploration, development, and production with future threats, and we did not overestimate the likelihood of oil and gas production in the future. As we stated in the preceding response, we find that the current level of energy exploration, production, and development elsewhere in the Gulf of Mexico is affecting the species. In addition, the species' exposure to future energy exploration, development, and production are likely to increase in the EPA with expiration of the moratorium on new lease sales in 2022. Some development is already expected in the EPA. As the commenters noted, based on the final supplemental EIS on oil and gas lease sales in 2016 and 2017 in the Central and Eastern Planning areas, which includes one lease sale in the EPA (Lease Sale 226), BOEM expects up to 67 wells will be drilled, up to 2 production structures will be installed, up to 145 miles of pipeline will be laid, 1,000 service-vessel round trips will be made, and 1,000 helicopter operations are expected between 2012 and 2051 in the EPA (BOEM 2015-033). Even if this development occurs in waters deeper than 800 m, the species would likely

still be exposed to noise and vessel strike from service vessels. Due to extended underwater sound propagation of low-frequency noise from well drilling, structure construction, seismic surveys, supporting vessel traffic, etc., we still expect acoustic impacts to the species that typically occur between 100 and 400 m water depths even if activities were to occur in depths greater than 800 m. In addition, in its final programmatic EIS on geological and geophysical activities in the Gulf of Mexico, BOEM estimates that there will be hundreds of instances of GOMx Bryde's whales being injured and thousands of instances of behavior disruptions as a result of noise associated with oil and gas activities, including noise from seismic surveys, from 2016 to 2025 (BOEM 2017-051). These analyses support our concern that future development is a threat to the species that contributes to its extinction risk.

Comments on the Threat of Oil Spills and Spill Response

Comment 28:
Joint industry commenters and another commenter disagreed with NMFS' reliance on the DWH Natural Resource Damage Assessment injury estimate to conclude that Bryde's whales experienced significant impacts from the DWH oil spill, and that oil spills and spill responses are a high threat to the species. The commenters stated that models used in the DWH assessment were flawed and have not been validated. In particular, the Marine Mammal Working Group, which evaluated and quantified injury to cetaceans from the DWH oil spill, did not observe any Bryde's whales in oiled waters in 2010, did not identify any Bryde's whale mortalities in 2010 or 2011, and did not observe any Bryde's whale behavioral changes or collect samples showing that whales ingested oil or dispersants. Furthermore, the commenters stated, all exposure risks and impairments were improperly inferred from dolphin studies in other areas. Other commenters agreed with NMFS' reliance on the DWH assessment to conclude that GOMx Bryde's whales were the most impacted shelf and oceanic species as a result of the DWH oil spill.

Response:
We disagree and find there is sufficient evidence that the GOMx Bryde's whales were adversely affected by the DWH event and that GOMx Bryde's whales are threatened by oil spills and spill responses. The DWH Trustees undertook a Natural Resource Damage Assessment (NRDA) to evaluate the nature and extent of adverse effects of the DWH incident on natural resources. As a result of the extensive, multi-year NRDA, the Trustees concluded that the DWH oil spill caused a wide array of injuries to species and natural resources in the northern Gulf of Mexico, including to the GOMx Bryde's whale. In particular, the damage assessment estimated that the oil footprint included 48 percent of the BIA, 17 percent of the population was killed, 22 percent of reproductive females experienced reproductive failure, and 18 percent of the population likely suffered adverse health effects due to the spill. Through the Marine Mammal Working Group's analysis in the NRDA, the group estimated the impacts of the DWH oil spill on the GOMx Bryde's whales and other cetaceans based on data from stranded animals, photo-identification surveys, and live dolphin health assessments that together characterized the adverse health effects of the spill on observed populations of dolphins in Barataria Bay and Mississippi Sound. Those assessments extrapolate the magnitude of the injury to other populations present within the oil footprint. The DWH NRDA Marine Mammal Technical Working Group report (DWH MMIQT 2015) explains that due to their narrow distribution and small population size, Bryde's whales are rarely observed during any single line transect study. In addition, the probability is extremely low that animals dying far offshore would eventually strand on beaches, which likely explains why no Bryde's whale strandings were recovered in 2010 or 2011. In order for researchers to collect samples of stomach contents showing that whales ingested oil or dispersants, dead whales would have had to strand ashore, and because the GOMx Bryde's whale is an oceanic animal it is highly unlikely that a carcasses would strand. The commenters provided no new information suggesting that GOMx Bryde's whales were not impacted by the DWH oil spill. For all the foregoing reasons, we believe it is reasonable to rely on NRDA to assess the impacts to the GOMx Bryde's whale resulting from exposure to the DWH oil spill, and to evaluate the threat to the species from oil spills and spill response.

Comment 29:
Several commenters stated that GOMx Bryde's whales are more vulnerable to oil spills due to the whale's highly limited range and strong site fidelity, increasing their risk and vulnerability to a single catastrophic event.

Response:
We agree. The Bryde's whales' small population size, restricted range, and year-round residency in the northeastern Gulf of Mexico increase the species' vulnerability to stochastic and catastrophic events such as oil spills and spill responses. Moreover, the GOMx Bryde's whale BIA is in close geographic proximity to oil extraction development areas, increasing their risk of exposure to an oil spill event.

Comment 30:
Joint industry commenters stated that if a spill was to occur and dispersants were needed for spill response, the dispersants will have minimal impacts to Bryde's whales. The commenters stated that impacts are highly dependent on a number of factors, such as frequency and duration of exposure, the type and mixtures of the chemical/compounds, the route of exposure, and the species' known avoidance of oily water. The commenters also stated that no Bryde's whales were observed within the oil during the DWH oil spill and there were no samples showing that Bryde's whales ingested oil or oil dispersants. Another commenter, however, stated that baleen whales, such as Bryde's whales, are more susceptible to impacts from oil spills and response activities because, as filter feeders, oil may adhere to their baleen plates and result in ingestion of the oil or dispersants used.

Response:
We recognize that impacts from dispersants are highly dependent on a number of factors, such as frequency and duration of exposure, the type and mixtures of the chemical/compounds, and the route of exposure. There is no evidence that GOMx Bryde's whales will avoid oiled waters. While previous studies have suggested that marine mammals could detect and avoid oiled waters, recent photographic evidence and field observations gathered following the DWH oil spill documented at least 11 marine mammal species swimming through oil and sheen, with oil adhering to their skin (Dias
et al.,
2017). This evidence demonstrates that marine mammals do not necessarily avoid oiled waters. In addition, the best available scientific information indicates that dispersants can cause acute or chronic impacts to marine mammals with lethal or sub-lethal effects (
e.g.,
Wise
et al.,
2014). Oil and other chemicals used as dispersants may impair marine mammals' health and reproduction, and increase their susceptibility to other diseases (DWH Trustees 2016). After active spilling has been stopped, marine mammals may experience continued effects through persistent exposure to oil in the environment, reduction or contamination of prey, direct ingestion of contaminated prey, or displacement from preferred habitat (Schwacke
et al.,
2014, Bureau of Ocean Energy

Management and Gulf of Mexico OCS Region 2015, DWH Trustees 2016). Thus, based on available information for marine mammals, we cannot conclude that GOMx Bryde's whale would be minimally harmed by oil spills or response activities. Moreover, as described herein, the DWH PDARP determined the Bryde's whale to be the most impacted oceanic marine mammal following the 2010 DWH oil spill. We find that the best available science supports our determination that oil spills and spill responses are a threat to the species. We agree with the other commenter that Bryde's whales are susceptible to impacts from oil spills and response activities and that ingestion of oil or dispersants are likely harmful to GOMx Bryde's whales.

Comment 31:
Joint industry commenters stated that the species will not be threatened by oil spills or spill response a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-06917. Public record. Not legal advice.