[Federal Register Volume 81, Number 174 (Thursday, September 8, 2016)]
[Rules and Regulations]
[Pages 62260-62320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21276]



[[Page 62259]]

Vol. 81

Thursday,

No. 174

September 8, 2016

Part II





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Parts 223 and 224





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

Federal Register / Vol. 81 , No. 174 / Thursday, September 8, 2016 / 
Rules and Regulations

[[Page 62260]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130708594-6598-03]
RIN 0648-XC751


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

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

ACTION: Final rule.

-----------------------------------------------------------------------

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

DATES: This final rule is effective October 11, 2016.

ADDRESSES: Public comments, a list of references cited in this final 
rule, and other supporting materials are available at 
www.regulations.gov identified by docket number NOAA-NMFS-2015-0035, or 
by submitting a request to the National ESA Listing Coordinator, Office 
of Protected Resources, NMFS, 1315 East-West Highway, Room 13536, 
Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, (301) 427-8469, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 12, 2009, we announced the initiation of a status review 
of the humpback whale to determine whether an endangered listing for 
the entire species was still appropriate (74 FR 40568). We sought 
information from the public to inform our review, contracted with two 
post-doctoral students to compile the best available scientific and 
commercial information on the species (Fleming and Jackson 2011), 
including the past, present, and foreseeable future threats to this 
species, and appointed a Biological Review Team (BRT) to analyze that 
information, make conclusions on extinction risk, and prepare a status 
review report (Bettridge et al. 2015).
    On April 16, 2013, we received a petition from the Hawaii 
Fishermen's Alliance for Conservation and Tradition, Inc., to classify 
the North Pacific humpback whale population as a DPS and then 
``delist'' that DPS under the ESA. On February 26, 2014, the State of 
Alaska submitted a petition to delineate the Central North Pacific 
(Hawaii) ``stock'' of the humpback whale as a DPS and subsequently 
remove that DPS from the ESA List of Endangered and Threatened Species. 
After reviewing the petitions, the literature cited in the petitions, 
and other literature and information available in our files, we found 
that both petitioned actions may be warranted and issued positive 90-
day findings (78 FR 53391, August 29, 2013; 79 FR 36281, June 26, 
2014). Public comment periods were opened upon publication of these 
findings to solicit information to be considered in the context of the 
ongoing status review. We subsequently extended the public comment 
period pertaining to information regarding the Central North Pacific 
(Hawaii) population (79 FR 40054; July 11, 2014). We then incorporated 
all information into a single status review report of the humpback 
whale (available at http://www.fisheries.noaa.gov/pr/species/mammals/whales/humpback-whale.html).
    Based on information presented in the status review report (which 
included a demographic analysis, threats analysis, and extinction risk 
analysis), our assessment of the BRT's conclusions, and efforts being 
made to protect the species, we initially determined: (1) 14 
populations of the humpback whale met the criteria of the NMFS and U.S. 
Fish and Wildlife Service (USFWS) joint 1996 DPS Policy and were, 
therefore, considered to be DPSs; (2) the Cape Verde Islands/Northwest 
Africa and Arabian Sea DPSs were in danger of extinction throughout 
their ranges; (3) the Western North Pacific and Central America DPSs 
were likely to become endangered throughout all of their ranges within 
the foreseeable future; and (4) the West Indies, Hawaii, Mexico, 
Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West 
Australia, East Australia, Oceania, and Southeastern Pacific DPSs were 
not in danger of extinction throughout all or a significant portion of 
their ranges or likely to become so within the foreseeable future. 
Accordingly, we issued a proposed rule (80 FR 22304; April 21, 2015) to 
revise the species-wide listing of the humpback whale by replacing it 
with two endangered species listings (Cape Verde Islands/Northwest 
Africa and Arabian Sea DPSs) and two threatened species listings 
(Western North Pacific and Central America DPSs). We also proposed to 
extend all ESA section 9 prohibitions to both the Western North Pacific 
and the Central America DPSs. As described below, after considering 
public comments and the best available scientific and commercial 
information, we have now reached our final determinations, which in 
three instances differ from our proposed determinations. We now issue a 
final rule to revise the species-wide listing of the humpback whale by 
replacing it with four endangered species listings (Cape Verde Islands/
Northwest Africa, Western North Pacific, Central America, and Arabian 
Sea DPSs) and one threatened species listing (Mexico DPS). We also 
finalize our proposed rule to extend all ESA section 9 prohibitions to 
threatened humpback whales (which now consists of the Mexico DPS).

Listing Determinations Under the ESA

    We are responsible for determining whether species are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). To reach a 
listing determination for a particular group of organisms, we must 
first consider whether that group of organisms constitutes a 
``species'' under the ESA, and then we consider whether the status of 
the species qualifies it for listing as either threatened or 
endangered. Section 3 of the ESA defines a ``species'' to include ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature.'' On February 7, 1996, NMFS and the USFWS (together, the 
Services) adopted a policy describing what constitutes a DPS of a 
species or subspecies (61 FR 4722). The joint DPS policy identified two 
elements that must be considered when identifying a DPS: (1) The 
discreteness of the population segment in relation to the remainder of 
the species (or subspecies) to which it belongs; and (2) the 
significance of the population segment to the remainder of the species 
(or subspecies) to which it belongs. As stated in the joint DPS policy, 
Congress expressed an expectation that the Services would exercise 
authority with regard to identifying DPSs sparingly and

[[Page 62261]]

only when the biological evidence indicates such action is warranted.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range'' (16 U.S.C. 
1533(6); (20)). Thus, we interpret an ``endangered species'' to be one 
that is presently in danger of extinction. A ``threatened species,'' on 
the other hand, is not presently in danger of extinction, but is likely 
to become so within the foreseeable future (that is, at a later time). 
In other words, the primary statutory difference between a threatened 
and endangered species is the timing of when a species may be in danger 
of extinction, either presently (endangered) or in the foreseeable 
future (threatened).
    As we explained in the proposed rule and summarize here, when we 
consider whether a species might qualify as threatened under the ESA, 
we must consider the meaning of the term ``foreseeable future.'' It is 
appropriate to interpret ``foreseeable future'' as the horizon over 
which predictions about the conservation status of the species can be 
reasonably relied upon. The foreseeable future considers the life 
history of the species, habitat characteristics, availability of data, 
particular threats, ability to predict threats, and the reliability to 
forecast the effects of these threats and future events on the status 
of the species under consideration. Because a species may be 
susceptible to a variety of threats for which different data are 
available, or which operate across different time scales, the 
foreseeable future is not necessarily reducible to a particular number 
of years. Our approach is consistent with the legal analysis adopted by 
the Department of the Interior. See United States Department of the 
Interior, Office of the Solicitor, Memorandum, ``The Meaning of 
`Foreseeable Future' in section 3(20) of the Endangered Species Act,'' 
M-37021 (Jan. 16, 2009).
    In determining the listing status of a species, subspecies, or DPS, 
the ESA and implementing regulations require that we consider whether 
the species is endangered or threatened because of any one or a 
combination of the following factors: The present or threatened 
destruction, modification, or curtailment of its habitat or range; 
overutilization of the species for commercial, recreational, 
scientific, or educational purposes; disease or predation; the 
inadequacy of existing regulatory mechanisms; and other natural or 
manmade factors affecting a species' continued existence (16 U.S.C. 
1533(a)(1); 50 CFR 424.11(c)). We evaluate demographic risk factors 
(i.e., abundance and trend information) in conjunction with the section 
4(a)(1) factors. The demographic risk analysis is an assessment of the 
manifestation of past threats that have contributed to the species' 
current status and also informs the consideration of the biological 
response of the species to present and future threats.
    Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made by any State or foreign 
nation or political subdivision thereof to protect the species (16 
U.S.C. 1533(b)(1)(A)).
    Applying the definitions of ``endangered species'' and ``threatened 
species,'' we first consider the status of a ``species'' (which 
includes subspecies and DPSs) ``throughout all . . . of its range.'' If 
(and only if) this rangewide evaluation does not lead to a conclusion 
that the species should be listed as endangered or threatened, then we 
must consider whether the species may be endangered or threatened in 
``a significant portion of its range.'' If it is, then the entire 
species (or subspecies, or DPS) will be listed. As we explained in the 
proposed rule and summarize here, we are guided in these listing 
determinations by the final joint policy adopted by the Services in 
2014 (79 FR 37577; July 1, 2014) (Final SPOIR Policy). The Final SPOIR 
Policy explains that it is necessary to fully evaluate a portion under 
the ``significant portion of its range'' authority only if substantial 
information indicates that the members of the species in a particular 
area are likely to both meet the test for biological ``significance'' 
established in the policy and to be currently endangered or threatened 
in that area. Making this preliminary determination triggers a need for 
further review, but does not prejudge whether the portion actually 
meets these standards such that the species should be listed.
    The BRT initially applied the higher threshold for ``significance'' 
from the 2011 draft SPOIR policy but before finalizing the report 
confirmed that application of the threshold of the final SPOIR Policy 
would not have changed the findings for any DPS (See 80 FR 22304, at 
22349). (The draft SPOIR policy differed from the final SPOIR policy in 
that a portion of the range of a species was considered ``significant'' 
if the portion's contribution to the viability of the species was so 
important that, without that portion, the species would be in danger of 
extinction (i.e., endangered) throughout all of its range. Under the 
Final SPOIR Policy, the hypothetical loss of the portion being 
considered would only need to result in the species being at least 
threatened throughout its range instead of endangered throughout its 
range.)

Status Review

    A summary of basic biological and life history information of the 
humpback whale can be found in the proposed rule (80 FR 22304; April 
21, 2015 at 22307-22309) and more details can be found in Fleming and 
Jackson (2011) and the BRT's status review report (Bettridge et al. 
2015; available at http://www.nmfs.noaa.gov/pr/species/statusreviewes.htm). As we described more fully in the proposed rule, 
to identify potential DPSs, the BRT reviewed the best scientific and 
commercial data available on the humpback whale's taxonomy and 
concluded that there are likely three unrecognized subspecies of 
humpback whale: North Pacific, North Atlantic, and Southern Hemisphere. 
In reaching this conclusion, the BRT considered available life history, 
morphological, and genetic information (mtDNA and DNA relationships and 
distribution, as described in Jackson et al. (2014)). Next, the BRT 
considered various humpback whale populations to determine whether they 
satisfied the DPS criteria of discreteness and significance relative to 
the three subspecies.
    The BRT considered both the abundance and trend information (i.e., 
the demographic analysis) and the threats to each DPS before reaching 
its conclusions on overall extinction risk for each DPS. With regard to 
the demographic analysis, the BRT concluded that abundance and, where 
available, trend information should be considered carefully but were 
not the sole criteria for evaluating extinction risk. When considering 
numbers of individuals within a DPS, the BRT considered the following 
general thresholds for population risk: A DPS with a total population 
size >2,000 individuals was not likely to be at risk due to low 
abundance alone; a DPS with a population size <2,000 individuals would 
be at increasing risk from factors associated with low abundance (and 
the lower the population size, the greater the risk); a DPS with a 
population size <500 individuals would be at high risk due to low 
abundance; and a DPS with

[[Page 62262]]

a population size <100 individuals would be at extremely high risk due 
to low abundance. BRT members also considered how each of the factors 
(or threats) listed in ESA section 4(a)(1) contribute to the extinction 
risk of each DPS now and in the foreseeable future.
    The BRT decided to evaluate risk of extinction over a time frame of 
approximately 60 years, which corresponds to about three humpback whale 
generations. The BRT concluded it could be reasonably confident in 
evaluating extinction risk over this time period (the foreseeable 
future) because current trends in both the biological status of the 
species and the threats it faces are reasonably foreseeable over this 
period of time. In making our listing determinations, we have applied a 
period of 60 years as the general foreseeable future when considering 
impacts to the species.
    In reaching our proposed listing determinations, we reviewed the 
status review report (Bettridge et al. 2015) and concluded that it 
provided the best available scientific and commercial data on the 
identification of DPSs, abundance and trends, and section 4(a)(1) 
factors as of the time it was compiled. To make the proposed listing 
determinations, we used the best available scientific and commercial 
data on the humpback whale, which are summarized in the status review 
report and incorporated herein. After considering conservation efforts 
by States and foreign nations to protect the DPS, as required under 
section 4(b)(1)(A), we proposed listing determinations based on the 
statutory definitions of ``endangered species'' and ``threatened 
species'' (80 FR 22304; April 21, 2015).
    To make our final listing determinations, we reviewed all 
information provided during the 90-day public comment period on the 
proposed rule (which included some studies and reports not initially 
considered for the proposed rule), information received through the 
four public hearings, and additional scientific and commercial data 
that became available since the publication of the proposed rule and 
the status review report. In most cases, this additional information 
merely supplemented, and did not differ significantly from, the 
information presented in the proposed rule. Where new information was 
received, we have reviewed it and present our evaluation of the 
information in this final rule. In most cases, the new information 
received was not so significant that we are relying on it for our final 
determinations. We received comments and received or obtained new 
information on the West Indies DPS, the Western North Pacific DPS, the 
Hawaii DPS, the Mexico DPS, the Central America DPS, the Gabon/
Southwest Africa DPS, and the Oceania DPS. After reviewing public 
comments and new information, we determined that: (1) Some of the data 
we relied upon for the West Indies DPS abundance estimate is not yet 
available in final, validated form or fully analyzed by the authors of 
the relevant study, so for the final rule we are relying solely on data 
from an earlier survey because it represents the best available 
scientific and commercial data, but this does not change our initial 
determination that listing this DPS is not warranted; (2) upon 
reconsideration of the information we had at the time of our proposal, 
the extinction risk to the Western North Pacific DPS should be 
classified as high, not moderate, and therefore, we are listing this 
DPS as endangered instead of threatened; (3) upon reconsideration of 
the information we had at the time of our proposal, and in light of 
updated, lower abundance estimates, the extinction risk to the Mexico 
DPS should be classified as moderate, not low, and therefore, we are 
listing this DPS as threatened; (4) upon reconsideration of the 
information we had at the time of our proposal, and in light of the 
updated, lower abundance estimate for the Central America DPS and 
associated uncertainties, the extinction risk to the Central America 
DPS should be classified as high, not moderate, and therefore, we are 
listing this DPS as endangered instead of threatened; (5) we have 
updated the population abundance estimate for the Gabon/Southwest 
Africa DPS to 7,134, based on more reliable data, but this does not 
change our initial determination that listing this DPS is not 
warranted; and (6) the population abundance estimate and the population 
growth rate of the Oceania DPS are 4,329 and 3 percent per year 
(previously ``unknown''), respectively, which further strengthens our 
initial determination that listing this DPS is not warranted. With this 
rule, we finalize our listing determinations, resulting in four DPSs 
listed as endangered (E), one DPS listed as threatened (T), and nine 
DPSs not warranted for listing (NW), as described in the following 
table:

------------------------------------------------------------------------
        Humpback Whale DPS             Proposed             Final
------------------------------------------------------------------------
West Indies......................  NW                NW.
Cape Verde Islands/Northwest       E                 E.
 Africa.
Western North Pacific............  T                 E.
Hawaii...........................  NW                NW.
Mexico...........................  NW                T.
Central America..................  T                 E.
Brazil...........................  NW                NW.
Gabon/Southwest Africa...........  NW                NW.
Southeast Africa/Madagascar......  NW                NW.
West Australia...................  NW                NW.
East Australia...................  NW                NW.
Oceania..........................  NW                NW.
Southeastern Pacific.............  NW                NW.
Arabian Sea......................  E                 E.
------------------------------------------------------------------------

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

    We have determined that, based on the best available scientific and 
commercial information, the humpback whale should be recognized under 
the ESA as 14 individual DPSs. We described the delineations of these 
14 DPSs in detail in the 12-month determination and proposed rule (80 
FR 22304; April 21, 2015). Comments regarding the delineation are 
addressed under Summary of Comments below. Based on a comprehensive 
status review and our analysis of demographic factors and the section 
4(a)(1) factors, we have concluded that four of the DPSs qualify as 
endangered species, one qualifies as a threatened species, and nine do 
not warrant listing. Our action here is prompted both by our own 
review, begun in 2009, and the two delisting petitions we received.
    Our final determinations are based on the best available scientific 
and commercial information pertaining to the species throughout its 
range and within each DPS. In this final rule, we are identifying 14 
DPSs, making listing determinations for each DPS, and revising the 
current listing. We find that the purposes of the ESA would be 
furthered by managing this wide-ranging species as separate units under 
the DPS authority, in order to tailor protections of the ESA to those 
populations that warrant protection. Based on a review of the 
demographics of these DPSs and the five factors contained in ESA 
section 4(a)(1), we find that the best available science no longer 
supports a finding that the species is an ``endangered species'' 
throughout its range. We revise the listing for the humpback whale by 
removing the current species-wide listing and in its place listing four 
DPSs as endangered and one DPS as threatened. Nine DPSs are not being 
listed because their current status does not warrant listing. Because 
these DPSs are not currently listed as separate entities, we are 
revising and replacing the existing listing of the species with 
separate listings for those DPSs that warrant classification as 
threatened or

[[Page 62263]]

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

[[Page 62264]]

was one of the original authorities cited in promulgating the 
regulation;
    (9) Information related to the designation of critical habitat, 
including identification of those physical or biological features which 
are essential to the conservation of the Western North Pacific and 
Central America DPSs of humpback whale and which may require special 
management consideration or protection;
    (10) Economic, national security, and other relevant impacts from 
the designation of critical habitat for the Western North Pacific and 
Central America DPSs of humpback whale; and
    (11) Research and other activities that would be important to 
include in post-delisting monitoring plans for the West Indies, Hawaii, 
Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, 
West Australia, East Australia, Oceania, and Southeastern Pacific DPSs.
    We received 225 comment letters on the proposed rule. One of the 
commenters attached a form letter that was signed by 13,279 members, as 
well as 539 letters that were modified versions of the same form 
letter. Another commenter sent a letter, including signatures from 
3,464 U.S. individuals and 4,046 individuals from foreign countries. We 
also held four public hearings in Honolulu, HI; Juneau, AK; Plymouth, 
MA; and Virginia Beach, VA, at which 13 members of the public provided 
testimony.
    Summaries of the substantive public comments received, and our 
responses, are provided below, organized by topic.

Comments on Topics That Apply to Multiple DPSs

    Comment 1: One commenter stated that NMFS initiated an ESA status 
review of the humpback whale in 2009 and asserted that it has yet to be 
completed. The commenter added that the findings are likely to shed new 
light onto the population status of humpback whale DPSs in the North 
Pacific.
    Response: We initiated an ESA status review in 2009 and completed 
it in 2015 (Bettridge et al. 2015). We relied upon the status review 
report to make our conclusions about the humpback whale DPSs and their 
status under the ESA. More recent information available since the 
report's publication and since publication of the proposed rule was 
considered during development of this final rule. If we become aware of 
new information at a later date that may affect our understanding of 
the DPSs' status, we can initiate a new status review. New information 
can also be evaluated during the 5-year reviews that are required under 
ESA section 4(c)(2) or presented via a petition at any time.
    Comment 2: One commenter stated that the ESA is only valid within 
the borders of the United States and that consideration of listing or 
delisting populations that are not within our borders is meaningless as 
far as protective status is concerned.
    Response: Section 4 of the ESA requires that we list any species 
that we determine to be endangered or threatened, whether it occurs 
within the United States or elsewhere. Demonstrating a need to secure 
particular protections under the other sections of the ESA, or that 
such protections will be afforded where the species is found, is not a 
precondition to listing. While it is true that fewer protections apply 
under the ESA for foreign species, important protections do apply. All 
persons subject to the jurisdiction of the United States (including its 
citizens) must comply with section 9 of the ESA, which, among other 
things, makes it unlawful to import endangered species into the United 
States or to export them from the United States, or to ``take'' 
endangered species within the territorial sea of the United States or 
upon the high seas (16 U.S.C. 1538(a)(1)(A)-(C)). These protections may 
be extended to threatened species through a rule issued under section 
4(d). In addition, listing provides important educational benefits.
    Comment 3: One commenter questioned the ``significance'' criterion 
of the DPS Policy, asserting that if a population is discrete from 
other populations, it should qualify as a DPS.
    Response: As noted earlier, the Services published the Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
Under the Endangered Species Act in 1996 (61 FR 4722; February 7, 
1996). To be considered a DPS, a population must be both discrete from 
the remainder of the species to which it belongs and significant to the 
species to which it belongs. The DPS policy states:

    If a population segment is considered discrete under one or more 
of the above conditions, its biological and ecological significance 
will then be considered in light of Congressional guidance (see 
Senate Report 151, 96th Congress, 1st Session) that the authority to 
list DPS's be used `` * * * sparingly'' while encouraging the 
conservation of genetic diversity. In carrying out this examination, 
the Services will consider available scientific evidence of the 
discrete population segment's importance to the taxon to which it 
belongs. This consideration may include, but is not limited to, the 
following:
    1. Persistence of the discrete population segment in an 
ecological setting unusual or unique for the taxon;
    2. Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    3. Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more 
abundant elsewhere as an introduced population outside its historic 
range; or
    4. Evidence that the discrete population segment differs 
markedly from other populations of the species in its genetic 
characteristics. Because precise circumstances are likely to vary 
considerably from case to case, it is not possible to describe 
prospectively all the classes of information that might bear on the 
biological and ecological importance of a discrete population 
segment.

The DPS Policy was adopted following a period of public comment and 
is the Services' definitive interpretation of ``distinct population 
segments.'' See Northwest Ecosystem Alliance v. U.S. Fish and 
Wildlife Service, 475 F.3d 1136, 1143 (9th Cir. 2007) (holding that 
the DPS Policy is entitled to deference as a duly promulgated, 
binding policy). Therefore, discreteness alone is not sufficient for 
identifying a population as a DPS.

    Comment 4: Several commenters supported identifying DPSs, but 
recommended that populations in different feeding areas be identified 
as DPSs separately from breeding population DPSs in order to support 
species diversity, as is done under the MMPA in some cases. One of 
these commenters supported our decision to identify DPSs because they 
agree that humpback whales should not be listed under the ESA as a 
global species, nor solely as three sub-species. This commenter also 
understood the rationale for initially focusing on distinct breeding 
stocks, as well as the mandate to apply DPSs sparingly.
    The commenters were nevertheless concerned that the proposed set of 
DPSs may not be adequate to maintain species diversity in light of 
humpback whale ecology, suggesting that humpback whales exhibit strong 
fidelity to feeding grounds as well as breeding grounds. This commenter 
noted that individuals that interbreed return reliably to their own 
discrete feeding areas, and these can be widely separated across ocean 
basins. The commenter asserted that we have previously indicated that 
if humpback whales were to be extirpated on one North Atlantic feeding 
ground then that area would not be re-colonized within a management-
relevant time frame (Waring et al. 2000), stating that this rationale 
was used to redefine the MMPA management unit for stock assessment from 
the Western North Atlantic to the Gulf of Maine (Waring et

[[Page 62265]]

al. 2000). The commenter strongly agreed with this view and management 
action and believed that the same rationale applies to the preservation 
of species range and diversity under the ESA.
    Furthermore, the commenter stated, there are significant genetic 
differences among feeding grounds in both the North Atlantic and the 
North Pacific (Palsb[oslash]ll et al. 2001; Baker et al. 2013), 
including among feeding grounds that share a proposed DPS. One example 
is the ``low but significant divergence between all summer foraging 
grounds . . . as well as between all summer foraging grounds and the 
samples collected on the breeding grounds in the West Indies'' 
(Palsb[oslash]ll et al. 2001). The commenter asserted that such 
differences are not adequately explained by our knowledge of breeding 
stocks, and therefore likely not captured by breeding-based DPS units 
alone. Finally, this commenter noted, there is evidence of cultural 
transmission of feeding behavior among individuals on at least one 
feeding ground (Allen et al. 2013; Weinrich et al. 1992), and such 
knowledge cannot be shared across breeding populations due to the 
segregation of breeding and feeding habitats. For these reasons, this 
commenter suggested that feeding aggregations warrant individual 
consideration under the ESA.
    Response: MMPA stocks do not necessarily coincide with DPSs under 
the ESA. To be identified as a DPS under the ESA, a population must be 
both discrete from other conspecific populations and significant to the 
species or subspecies to which it belongs. A population need only be 
demographically independent from another population to be considered a 
stock under the MMPA (NMFS 2016). It may be true that humpback whales 
demonstrate fidelity to their feeding areas, and if a stock in a 
particular feeding area is extirpated, it may not be repopulated within 
a management-relevant time period; however, this is not the test under 
the DPS policy. NMFS held a workshop on Conservation Units of Managed 
Fish, Threatened or Endangered Species, and Marine Mammals in February 
2006 to discuss the differences among stocks under the MMPA, fisheries 
stocks under the Magnuson-Stevens Act, and DPSs under the ESA (NMFS 
2008). We concluded that DPSs can encompass multiple MMPA stocks 
because of the significance criterion of the DPS policy. DPSs can be 
identified at different hierarchical levels, and we determine the DPS 
configuration that makes the most sense after evaluating the best 
available scientific and commercial information and considering what 
management approach best furthers the purposes of the ESA as concerns 
that species.
    Comment 5: One commenter recommended that we identify 
demographically independent populations as DPSs in the Southern 
Hemisphere because this has implications for candidacy for 
``delisting.'' The commenter asserted that the proposed rule omitted a 
number of DPSs that meet the DPS policy criterion of ``discreteness.'' 
Such omissions, they asserted, have further implications for 
estimations of abundance, status, threats, and possibly extinction 
risk, if a DPS includes a number of demographically independent units. 
The commenter cited relatively recent studies (Barendse et al. 2011; 
Carvalho et al. 2014; Elwen et al. 2014; Ersts et al. 2011; Fossette et 
al. 2014; Kershaw 2015; Rosenbaum et al. 2014; Van Waerebeek et al. 
2013) indicating statistically significant differences between 
substocks within International Whaling Commission (IWC) stocks B and C 
(equivalent to the Gabon/Southwest Africa DPS and the Southeast Africa/
Madagascar DPS). The commenter also recommended that the significance 
of Fst values (measure of genetic differentiation among 
groups) rather than the magnitude of these values be considered in 
delineating DPSs.
    Another commenter asserted that NMFS' proposed designation of the 
East Australia DPS and Oceania DPS uses a different boundary between 
two breeding stocks (designated E and F by the IWC) than the boundary 
used by the IWC. This commenter stated that NMFS' proposal is therefore 
arbitrary and capricious. The commenter suggests that this boundary may 
or may not be adequately protective of animals using the Southern 
Hemisphere breeding areas east of the coast of Australia, which appear 
to have a mixing of a fairly robust stock with smaller and more fragile 
stocks. The commenter pointed to one publication (Garrigue et al., 
undated), not cited by NMFS, that discusses the ``known connections 
between eastern Australia and the westerly component of Oceania (New 
Caledonia, Tonga and New Zealand).'' Clearly, this commenter asserted, 
some of these East Australia animals are mixing with breeding stocks 
included in the Oceania DPS. This commenter added that there has also 
been a documented interchange between humpbacks in New Caledonia and 
Eastern Australia at the same rate of exchange seen between New 
Caledonia and ``the rest of'' Oceania (i.e., Vanuatu and Tonga) 
(Garrigue et al. 2011).
    Response: We appreciate the citations for studies not included in 
the status review report or in the proposed rule. Some of these papers 
were published after the BRT had substantially completed drafting its 
status review report. We have carefully reviewed each publication, and 
all available information has now been considered for this final rule. 
While the substocks identified by the commenters represent 
demographically independent populations (as identified by the IWC), 
they do not meet the criteria of our DPS Policy (please see response to 
Comment 3). Criteria in the DPS policy indicate a population must be 
discrete from other conspecific populations and significant to the 
taxon to which it belongs. Our DPS determinations are case specific; we 
do not rely on a particular Fst value to indicate that 
populations are discrete from each other. Genetic differences among 
populations may be an indication of discreteness, but not necessarily 
an indication of significance. The BRT identified 15 humpback whale 
DPSs, and, as we explained in the proposed rule, we agreed with its 
conclusions in all cases but one (we combined two of the populations 
the BRT identified as separate into one DPS; please see response to 
Comment 43).
    In the case of the East Australia and Oceania DPSs, the BRT 
reviewed the data and made a modification based on the best available 
data, as the ESA requires. We are aware that there are migrants between 
these DPSs. The DPS Policy criteria do not require complete separation 
between populations. In discussing the DPS configuration of Southern 
Hemisphere humpback whale populations, the BRT stated, ``. . . 
significant differentiation was present among major breeding areas, and 
the estimated number of migrants/generation among areas was small 
compared to the estimated sizes of the populations'' (Bettridge et al. 
2015 at 24). The BRT interpreted the interchange between humpback 
whales in eastern Australia and New Caledonia as evidence that the 
whales share a migration corridor: ``Breeding population in New 
Caledonia and east Australia are separate but some overlap between the 
populations occurs: some whales bound for New Caledonia use the same 
migratory pathways as some whales headed past east Australia'' 
(Bettridge et al. 2015 at 25). The Garrigue et al. (2011) study cited 
by the commenter discusses only 7 matches between Eastern Australia and 
Oceania, which is a small number. Similar

[[Page 62266]]

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

[[Page 62267]]

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

[[Page 62268]]

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

[[Page 62269]]

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

    (A) Such species so closely resembles in appearance, at the 
point in question, a species which has been listed pursuant to such 
section that enforcement personnel would have substantial difficulty 
in attempting to differentiate between the listed and unlisted 
species;
    (B) the effect of this substantial difficulty is an additional 
threat to an endangered or threatened species; and
    (C) such treatment of an unlisted species will substantially 
facilitate the enforcement and further the policy of this chapter.

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

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

[[Page 62270]]

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

[[Page 62271]]

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

[[Page 62272]]

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

[[Page 62273]]

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

[[Page 62274]]

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

[[Page 62275]]

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

[[Page 62276]]

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

[[Page 62277]]

establishes a framework for continued monitoring and assessment of 
potential threats for the next 10 years (twice the minimum 5-year 
monitoring period required by the ESA).
    With regard to the suggestion that we failed to adequately evaluate 
the combined effects to the species from all section 4(a)(1) factors, 
while we did not explicitly discuss the combined effects of different 
threats on the different DPSs in the proposed rule, it is clear that we 
did consider them. For the West Indies, Hawaii, and Mexico DPSs, we did 
not mention the combined effects of threats in the proposed rule 
because the abundance estimates of these DPSs were sufficiently high 
that we could not foresee any combination of threats impacting the DPSs 
to the point where we would consider them threatened or endangered. 
(Note that we now have revised abundance estimates for the Mexico DPS 
and have reconsidered its status in light of the continuing threat of 
fishing gear entanglements). For the Southern Hemisphere DPSs that we 
did not propose to list (Brazil, Gabon/Southwest Africa, Southeast 
Africa/Madagascar, West Australia, East Australia, Oceania, and 
Southeastern Pacific), we noted in our proposed rule, ``None of the 
factors that may negatively impact the status of the humpback whale 
appear to pose a threat to recovery, either alone or cumulatively, for 
these DPSs.'' The high abundances of these DPSs similarly led us to 
conclude there was no potential combination of threats that would 
result in endangered or threatened status for any of these DPSs. For 
those DPSs that we proposed listing as endangered (Cape Verde Islands/
Northwest Africa, Arabian Sea) on the basis of the factors identified, 
there was no need for further consideration of combinations of effects 
because no amount of additional risk could lead to any greater 
protected status than endangered. While the discussion in the status 
review report and proposed rule was not explicit on this point, 
consideration of the combined effect of threats can be reasonably 
discerned from them and we reiterate this reasoning here.
    Since the proposed rule published, we have reconsidered our listing 
determinations for the Western North Pacific, Mexico, and Central 
America DPSs. We have determined that the Western North Pacific and 
Central America DPSs are endangered (please see Western North Pacific 
DPS and Central America DPS sections for our rationale) and that the 
Mexico DPS is threatened (please see Mexico DPS section for our 
rationale). Further, we now confirm in this final rule that we have 
considered whether any section 4(a)(1) threats in combination would 
lead us to conclude that a different listing status is appropriate for 
any DPS. We have reached our final listing determinations after fully 
considering all factors together and individually.

Comments on the West Indies DPS

    Comment 28: One commenter noted that on page 95 (80 FR 22304; April 
21, 2015 at 22325), the proposed rule states that the SBNMS has the 
potential to reduce the extinction risk of the West Indies DPS by 
providing protection on the feeding ground. While this commenter agrees 
that the SBNMS is a site of important research and management 
initiatives, the commenter points out that it is a small marine 
protected area that is visited by only approximately 200 individual 
humpback whales per year on average (CCS, unpublished data). As such, 
argues the commenter, it is unlikely that it could have significant 
effect on the viability of the West Indies DPS. The commenter further 
notes that, on a larger scale, the SBNMS is part of a Sister Sanctuary 
Program with other marine protected areas within the range of North 
Atlantic humpback whales and that this relationship has the potential 
to facilitate conservation and research across international 
boundaries. However, it is not clear how this program might be impacted 
by a change in the ESA status of the proposed West Indies DPS.
    Response: We agree that the SBNMS is a small marine protected area, 
but as the commenter noted, it is part of a larger Sister Sanctuary 
Program that can provide some protection to these whales at certain 
stages in their migration. To date, SBNMS has sister sanctuary 
agreements with the Dominican Republic, the French Antilles, and 
Bermuda. The intent of the agreement(s) is to foster cooperation on 
activities of mutual interest and exchange experience through 
coordination of capacity building, research, and education concerning 
the conservation, stewardship, and management of the endangered 
humpback whale, and the respective marine bank ecosystems they 
frequent. We do not expect these activities to change because the West 
Indies DPS of humpback whale is not protected under the ESA.
    Comment 29: The State of Massachusetts supports not listing the 
West Indies DPS and asserts that the MMPA and the Atlantic Large Whale 
Take Reduction Plan (ALWTRP) will provide protections.
    Response: We acknowledge the State of Massachusetts' comments, and 
are finalizing the identification of, and a ``not warranted'' finding 
for, the West Indies DPS in this final rule. We agree these other 
actions provide protection for humpback whales.
    Comment 30: Two commenters suggested that there was insufficient 
support for a single, wider Caribbean region DPS, taking the position 
that the West Indies DPS we identified comprises two (or more) DPSs 
that should be considered endangered. Another commenter stated that new 
information is now available based on research in the eastern Caribbean 
and the eastern North Atlantic and that this information does not 
support previous assumptions that the West Indies is a homogeneous 
breeding population. Rather, whales in the eastern Caribbean appear to 
exhibit different breeding timing and preferential exchange with 
eastern North Atlantic areas (Stevick et al. accepted; Stevick et al. 
2015). This commenter stated that it is unclear whether these results 
might require a change in the spatial boundaries of the two proposed 
DPSs, or if there should be more than two DPSs in the North Atlantic. 
The commenter stated that it is also not clear whether further 
heterogeneity may exist within other under-sampled areas of the 
Caribbean. The commenter believes that these results must be further 
scrutinized before ascertaining the number, the geographic extent, and 
status of DPSs in the North Atlantic.
    Response: Research (Stevick et al. 2015) shows that some humpback 
whales that are resighted in the western North Atlantic feeding grounds 
move into the more northern part of the Caribbean in January and 
February, and another group that is resighted in Iceland and northern 
Norway enters the southeastern Caribbean at a later date. Further, 
Stevick et al. (2016) discusses 4 individual humpback whales sighted in 
Guadeloupe and the Cape Verde Islands; one was subsequently sighted in 
Norway. However, this information is based on very few data, and does 
not provide a sufficient or convincing basis to combine whales that 
breed in the Southeastern Caribbean with those in the Cape Verde 
Islands/Northwest Africa DPS or to identify three or more DPSs in the 
North Atlantic. The difference in observed breeding timing could be a 
result of survey period. In addition, at least three humpback whales 
from the Lesser Antilles (southeastern Caribbean) have been resighted 
in West Greenland, Newfoundland, and Norway, as well as the Dominican 
Republic, which indicates mixing. At this time, we believe the best 
available scientific and

[[Page 62278]]

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

[[Page 62279]]

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

[[Page 62280]]

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

[[Page 62281]]

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

[[Page 62282]]

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

[[Page 62283]]

small, and the abundance of the West Indies DPS is large (10,400-
10,752). Bequians in St. Vincent and the Grenadines in the Lesser 
Antilles currently retain an IWC ``block'' quota of up to 24 whales 
over a 6-year period (2013-2018) (IWC 2012), and 27 humpback whales 
were killed in Greenland between 2010 and 2012 under a 2010 IWC quota. 
We have determined, based on the best available information, the West 
Indies DPS is not threatened or endangered under the ESA, and it can 
sustain a small number of subsistence takes.

Comments on the Cape Verde Islands/Northwest Africa DPS

    We did not receive any comments on this DPS, other than the general 
comment recommending endangered status for all DPSs. This DPS is being 
listed as endangered (please see Cape Verde Islands/Northwest Africa 
DPS section).

Comments on the Western North Pacific DPS

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

[[Page 62284]]

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

[[Page 62285]]

is difficult to know how to interpret this estimate. We were not able 
to review the undergraduate thesis itself, and not enough information 
is given to understand exactly how the analysis and modeling was 
conducted, and whether the thesis was submitted for any external peer 
review. Further, this study focused on whales around Okinawa, but the 
Western North Pacific DPS also includes whales from breeding areas in 
the Philippines and other unidentified areas, so the estimated growth 
rate does not necessarily reflect the growth rate of the entire DPS. 
Finally, we do not consider the estimate of pre-exploitation abundance 
(from the 2014 abstract of the undergraduate thesis) in the Okinawa 
area of this DPS to be reliable; as we have described, the migration of 
North Pacific humpback whales is complex and the thesis appears to have 
ignored the fact that the Asia population would have also experienced 
commercial whale catches on its summer feeding areas in Russia, the 
Aleutian Islands, and the Bering Sea. In any case, given the relatively 
low abundance of this DPS, several other remaining threats, and the 
significant uncertainties associated with the abundance estimate, we 
have changed our listing determination for this DPS, and we list it as 
endangered under the ESA instead of threatened (as proposed). Please 
see the Western North Pacific DPS section below for our rationale for 
this change.
    Comment 48: One commenter suggested that there is no information 
provided in the proposed rule's discussion of the proposed Western 
North Pacific DPS that allows an understanding of the BRT's level of 
concern given the admittedly low population size, unknown trend, and 
the fact that there is an acknowledgement that threats from energy 
development, whaling, competition with fisheries, and vessel collisions 
are considered moderately likely to reduce the population size or 
growth rate of this small, ``remnant'' population. Further, this 
commenter states, there is an acknowledgement that ``there is great 
uncertainty'' regarding threats and status of this proposed DPS. This 
commenter believes that we should have applied the precautionary 
approach in the face of this uncertainty. The commenter included a 
citation to the decision in Greater Yellowstone Coalition, Inc. v. 
Servheen, 665 F.3d 1015 (9th Cir. 2011).
    Response: We are required to use the best available scientific and 
commercial information when making ESA listing determinations. We are 
not required to consider only information that is free from 
uncertainty. Although there are threats to this DPS and there is some 
uncertainty as to the particular effects, we and the BRT viewed those 
threats against the backdrop of the population level, which at around 
1,000 is higher than the level (500) that would indicate the population 
is at high risk from small size alone.
    The situation here is distinguishable from that which was reviewed 
in the Greater Yellowstone Coalition case. There, FWS had decided to 
delist the Yellowstone population of grizzly bears, concluding without 
adequate explanation that changes in whitebark pine production were not 
likely to impact the bear to the point at which it would be threatened. 
FWS reached this conclusion despite the fact that the record documented 
a close association between reduced abundance of whitebark pine seeds 
and increases in grizzly mortality, recent reductions in whitebark pine 
due to pine beetles, and a potential for climate change to drastically 
affect the presence and distribution of whitebark pine seeds. The court 
found that the decision to delist the Yellowstone grizzly population 
could not rationally be reconciled with those particular facts in the 
record. The record before us does not present the kinds of documented 
effects that were present in the grizzly bear case.
    Nevertheless, we have found that, upon reconsideration of the best 
available information, the Western North Pacific DPS should be 
finalized as an endangered species instead of as a threatened species 
as proposed. Please see the Western North Pacific DPS section for our 
rationale for listing this DPS as endangered and our response to 
Comment 13 for discussion of the precautionary approach.

Comments on the Hawaii DPS

    Comment 49: The State of Alaska concurs with our proposal to not 
list the Hawaii DPS (which is consistent with Alaska's petition) and to 
list the Western North Pacific DPS as threatened. The State believes 
that any potential threats to the Hawaii DPS from human disturbance can 
be controlled through continued monitoring and management under the 
MMPA, the Magnuson-Stevens Act, the Fisheries Act of Canada, and SARA, 
as well as the IUCN, IWC, and the CITES. The State goes on to say that 
information on the Western North Pacific DPS is limited, particularly 
regarding the wintering/breeding area used by the whales that feed in 
the Aleutians and western Bering Sea. It notes that individual whales 
from the Western North Pacific DPS (proposed to be listed as 
threatened) and Hawaii DPS will mix to some extent during the summer in 
the Aleutians and the Bering Sea. As a result, ESA section 7 
consultations are likely to continue in the area of overlap because of 
the difficulty in distinguishing between individuals of the two DPSs.
    Response: We agree with the State of Alaska that the areas where 
individuals of a listed DPS mix with individuals of a DPS that is not 
listed will result in difficulty in distinguishing between individuals 
of the two DPSs. Any Federal agency that funds, authorizes, or carries 
out an action that may affect a listed DPS is required to consult with 
us under section 7 of the ESA, so this means that, in these areas where 
DPSs of different status mix, section 7 consultation will still be 
required to ensure that the threatened and endangered DPSs are 
protected under the ESA. Please see response to Comment 11, and the 
Western North Pacific DPS section for our rationale for listing the 
Western North Pacific DPS as endangered instead of threatened (as 
proposed).
    Comment 50: One commenter fully supports delisting the Hawaii DPS, 
emphasizing that the Hawaii-based commercial longline fisheries have no 
significant or detectable impact on the Hawaii DPS (or humpback whales 
from any other DPS), and any regulation of the fisheries that may be 
necessary with respect to humpback whales is amply addressed by the 
rigorous provisions contained in section 117 of the MMPA.
    Response: We acknowledge the comment. Fisheries that interact with 
marine mammals are regulated under section 118 of the MMPA, so this 
will provide a mechanism for continued monitoring and evaluation of the 
impacts of fisheries on humpback whales. We note that the Hawaii-based 
longline fisheries have been determined to have negligible impacts on 
humpback whales (79 FR 24567; October 16, 2014).
    Comment 51: One commenter stated that a recent assessment found 
that 78 percent of whales in northern Southeastern Alaska had been non-
lethally entangled in fishing gear (Neilson et al. 2009).
    Response: Entanglement in fishing gear remains a risk to large 
whales worldwide. Though these interactions occur in many regions, 
including the cases referred to in Southeast Alaska, many are non-
lethal (Bradford and Lyman 2015) and collectively they do not rise to a 
population level impact for the Hawaii DPS (which comprises most of the 
humpbacks found in Southeast Alaska). The Hawaii DPS has continued

[[Page 62286]]

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

Comment on the Mexico DPS

    Comment 55: One commenter noted that NMFS stated that the Mexico 
DPS has no trend information, yet NMFS is not listing it as endangered.
    Response: While we do not have trend information for the Mexico DPS 
by itself, there is population growth in most of its primary feeding 
areas, and this led us to conclude that it is unlikely to be declining, 
as we explained in the proposed rule (58 FR 22304; April 21, 2015). The 
abundance estimate we relied on in our proposed rule for this DPS was 
6,000-7,000, and this abundance estimate, along with available 
information on the species' response to ongoing threats, indicated to 
us that the Mexico DPS was not in danger of extinction throughout all 
or a significant portion of its range or likely to become so within the 
foreseeable future. However, the abundance estimate has been updated to 
3,264 (CV = 0.06), and we now conclude, in light of the ongoing threat 
of fishing gear entanglements which are believed likely to have a 
moderate impact on this DPS, that the Mexico DPS is threatened. Lack of 
definitive information on a growth rate trend alone is not 
determinative of a listing determination, which is based primarily on 
an assessment of threats to the species and consideration of whether 
the current abundance is sufficient to provide resilience against those 
threats. Here, however, in combination with these other considerations, 
we conclude that it does

[[Page 62287]]

support a determination of ``threatened'' for the Mexico DPS. (See the 
Mexico DPS section below for the rationale for our final listing 
determination.)

Comments on the Central America DPS

    Comment 56: Several commenters stated that the Central America DPS 
should remain endangered, not threatened, because there are only 500-
600 individuals, and the BRT concluded that 500 individuals indicates a 
high risk of extinction due to low abundance. One of these commenters 
noted that, according to the status review report, the population trend 
is unknown, and vessel strikes and fishing gear entanglement are likely 
to moderately reduce population size or growth rate. The other 
commenter noted that there were many uncertainties associated with the 
abundance estimate. Also, one of the commenters stated that this DPS 
may serve as a conduit for gene flow between the North Pacific and the 
Southern Hemisphere. The Government of Costa Rica agreed that the 
SPLASH study results clearly show that the Central America DPS is 
smaller than the Hawaii and Mexico DPSs and that the distinction would 
facilitate the management and protection of this segment of the 
population that uses the waters of Central America for the purpose of 
breeding and reproduction.
    Response: We have reconsidered our proposal, and we conclude that 
the Central America DPS should be listed as endangered under the ESA. 
The BRT reported that a preliminary estimate of abundance of the 
Central America population was about 500 from the SPLASH project 
(Calambokidis et al. 2008), or about 600 based on the reanalysis by 
Barlow et al. (2011). There are no estimates of precision associated 
with these estimates, so there is considerable uncertainty about the 
actual population size (Bettridge et al. 2015). Therefore, the actual 
population size could be somewhat larger or smaller than 500-600. Even 
though the BRT used 500 as a guideline between moderate and high risk 
of extinction (when considering abundance alone), the abundance 
estimates include a high level of uncertainty, and we note that this 
number straddles that threshold. The BRT concluded that this DPS was 
between ``moderate'' and ``high risk of extinction.'' After 
reconsidering all of the available information, we believe it is 
appropriate to give greater weight to the threats facing the Central 
America DPS, and we are now listing the DPS as endangered in this final 
rule. An updated abundance estimate of 411 for the Central America DPS 
(Wade et al. 2016) provides further support for this conclusion (Please 
see the Central America DPS section for further rationale.)

Comment on the Brazil DPS

    Comment 57: One commenter noted that the abundance estimate for the 
proposed Brazil DPS is from the 1990s and the citation for its 
entanglement risk is from a 1998 study reporting that calves are most 
heavily involved (a possible challenge to future reproduction). The 
commenter stated that although it is clear that mortality is ongoing 
and NMFS stated in the status review report of this DPS that there is 
``no current estimate of mortality,'' it proposed to remove ESA 
protection from this DPS.
    Response: The commenter's claim that the abundance estimate was 
based on data from the 1990s is incorrect. In the proposed rule (58 FR 
22304; April 21, 2015), we cited Andriolo et al. (2010), a study that 
is based on aerial surveys conducted off the coast of Brazil in 2002-
2005. However, the population growth rate estimate is based on data 
from the 1990s (Ward et al. 2011), which is the best available 
information. Because the abundance estimate is 6,400 with a 7.4 percent 
growth rate, the BRT concluded that the Brazil DPS was at low risk of 
extinction. Based on this, we concluded that, despite the presence of 
threats, the Brazil DPS does not meet the definition of a threatened or 
endangered species.

Comment on the Gabon/Southwest Africa DPS

    Comment 58: One commenter noted that NMFS stated that the Gabon/
Southwest Africa DPS has no trend information, yet NMFS is not listing 
it as endangered. Another commenter stated that abundance estimates for 
the Gabon/Southwest Africa DPS are cited to a 2008 ``unpublished'' 
paper that is also inaccessible to the public.
    Response: With regard to the comment that we are not listing the 
Gabon/Southwest Africa DPS as endangered, despite having no trend 
information, please see our responses to Comments 10 and 13. In all 
cases, we have based our listing determinations on the best available 
scientific and commercial information, as required by the ESA. There is 
no requirement that we have specific trend information where the data 
establish that the species is not currently endangered or threatened.
    Regarding the comment on the abundance estimates being based on an 
``unpublished'' paper, the paper we relied on (Collins et al. 2008) was 
submitted to the IWC Scientific Committee (Collins et al. 2008), and 
the commenter is correct, it was not (to our knowledge) and will not be 
published. This paper is available to the public because we have it in 
our files and can provide it upon request. Nonetheless, we note that 
our final listing determination does not rely on that information. We 
have reviewed two more recent papers (Collins et al. 2010, with 
abundance estimates of 4,314 (CV = 0.19) for 2001-2004 and 7,134 (CV = 
0.23) for 2004-2006) and the IWC (2012) assessment of the Gabon stock 
for 2005, which reported an abundance estimate of 9,484 (90 percent 
prediction interval (PI) = 7465, 12221) and a growth rate of 0.045 (90 
percent PI = 0.006, 0.081)).
    The estimates in Collins et al. (2008) had a fairly substantial 
genotyping error rate that would produce false negatives (missed 
matches), so Collins et al. (2010) corrected for this using an estimate 
of genotyping error rates that they estimated by repeat genotyping of a 
subset of the samples. The Collins et al. 2010 paper was reviewed in 
depth by the Southern Hemisphere subcommittee of the IWC Scientific 
Committee. In the IWC (2012) assessment, this committee decided that 
the best data to use were the male-only genetic mark-recapture data 
(the data that gave the estimate of 7,134 (CV = 0.23)), and we agree.
    The IWC (2012) abundance estimate of 9,484 is an output from a very 
complicated assessment model. Although in principle it is appropriate 
to use model-based estimates like this, the BRT did not do so in any 
other cases in its review, and this estimate is from a model that 
involved multiple stocks and is thus not directly informative. 
Therefore, we will not rely on this model output (and it does not make 
any difference to our evaluation of extinction risk).
    Further, the ``estimate'' of population growth rate in IWC (2012) 
should not be used as an estimate of trend; the IWC (2012) report makes 
this same conclusion. This was also a model output from its Bayesian 
assessment model, and IWC (2012) explains that this is not an estimate; 
rather, it is something that was pre-specified. We agree that it is 
better not to rely on this model output as an estimate of population 
trend.
    Despite the threat of offshore hydrocarbon activity off the coast 
of west Africa, the BRT concluded that this DPS was not at risk of 
extinction, and we agreed with the BRT's assessment. The updated 
abundance estimate for this DPS is still significantly larger than 
2,000, which is the population size above which the BRT considered a 
DPS not to be likely to be at risk due to low

[[Page 62288]]

abundance alone. We reaffirm our proposed determination that the Gabon/
Southwest Africa DPS is not in danger of extinction throughout all or a 
significant portion of its range or likely to become so within the 
foreseeable future.

Comments on the Southeast Africa/Madagascar DPS

    Comment 59: One commenter asserted that there is a considerable 
discrepancy in population estimates cited in the status review report 
and derived from surveys in 2004-2006, almost a decade ago. This 
commenter added that various data sets and models resulted in best 
estimates ranging widely from 4,936 to 8,169. With regard to trend 
information, this commenter noted, NMFS cited land-based observations 
passing east South Africa that included an estimate of the rate of 
population increase of 12.3 percent (which NMFS acknowledges is 
``outside biological plausibility for this species'') and a second 
estimated increase of 9 percent that NMFS stated is within the range 
calculated for other Southern Hemisphere breeding grounds; yet it still 
stated that ``both rates are considered with caution.'' This wording 
regarding abundance and trend incorporates a great deal of uncertainty 
(i.e., wide range of population estimates, words including 
``possibly,'' ``to a smaller degree,'' should be ``considered with 
caution'') and NMFS itself states that ``given this uncertainty . . . 
it is likely the DPS is increasing but it is not possible to provide a 
quantitative estimate of the rate of increase.'' The commenter 
concludes that NMFS' conclusion is subjective, risk prone, and 
inappropriate under the ESA.
    Response: Please see our response to Comment 13.

Comments on the West Australia DPS

    Comment 60: One commenter asserted that the best abundance estimate 
for the West Australia DPS provided in the status review report is 
21,750, based on a 2009 paper reporting on results of line transect 
surveys and with an estimated 10 percent annual rate of increase that 
is at the approximate limit of biological plausibility. This commenter 
stated that a more recent study by Kent et al. (2012) provided caveats 
in this estimate but provided a ``best estimate'' of 26,100 (CI = 
20,152-33,272) and a rate of increase of 10-12 percent annually with a 
large coefficient of variance, precluding a reliable trend estimate.
    Response: The work cited by the BRT had documented an ~10 percent 
rate of increase between 1982 and 1994 (Bannister 1994), and semi-
quantitative information indicated the population had been increasing 
steadily since the 1960s. Then Paxton et al. (2011) estimated an 
increase of 9.8 percent between 1999 and 2005, and Hedley et al. (2011) 
estimated a continued increase on the order of 12.5 percent between 
2005 and 2008. The Kent et al. (2012) study cited by the commenter used 
completely different data from a different location, but still 
estimated an increase of 13 percent (CI = 5.6 percent-18.1 percent) for 
the period 2000-2008. When Kent et al. (2012) combined the two data 
sets, they estimated an 11.9 percent (SE = 2.6 percent) growth rate for 
1999-2008. The West Australia DPS of the humpback whale is, by any 
measure, very large, and has been steadily increasing for decades at 
one of the highest measured growth rates of any whale.
    Kent et al. (2012) noted that the coefficient of variation for the 
13-percent growth rate estimate was too large for a reliable trend 
estimate. Zerbini et al. (2010) had calculated that 11.8 percent should 
be a maximum plausible growth rate for humpback whales. However, it is 
important to keep in mind the nature of precision and statistics, where 
the estimate can be larger than the true value. One would need an 
extremely precise estimate to be able to tell if a growth rate estimate 
is significantly greater than the theoretical maximum of 11.8 percent 
calculated by Zerbini et al. (2010).

Comments on the East Australia DPS

    We did not receive any substantive comments on this DPS, other than 
the general comment recommending endangered status for all DPSs and 
DPS-related comments (see responses to Comments 3 and 4).

Comments on the Oceania DPS

    Comment 61: One commenter noted that NMFS stated that the Oceania 
DPS has no trend information, yet NMFS is not listing it as endangered.
    Response: We based our proposal on the best available scientific 
and commercial information. As noted elsewhere, the ESA does not 
require that we have trend information in order to make a determination 
under section 4(a)(1). The humpback whale status review report cited a 
preliminary report that estimated humpback whale abundance in the 
Oceania DPS (New Caledonia, Tonga, French Polynesia, and Cook Islands) 
as 3,827 (CV = 0.12) in 1999-2004 (South Pacific Whale Research 
Consortium et al. 2006). This abundance estimate is large (>2,000) and, 
despite the unknown population trend, we determined that the DPS was at 
low risk of extinction throughout all or a significant portion of its 
range, currently and in the foreseeable future.
    Since the BRT's review and publication of the proposed rule, we 
became aware of a more recent publication (Constantine et al. 2012), 
which included updated data from 2005 and a new analysis that included 
genetic data to better account for differences in capture probability 
between individuals.
    We have considered this study for our final rule. This more recent 
publication (Constantine et al. 2012) presents an improved estimate of 
abundance in the region (4,329, 95 percent CI = 3,345-5,313) in 2005 
and new estimates of population growth rate (3-7 percent/year for 1999-
2005). There is now published evidence that this population is growing. 
The previous abundance estimate and available information on the 
species' response to ongoing threats indicated that the DPS was not in 
danger of extinction throughout all or a significant portion of its 
range or likely to become so within the foreseeable future. The new 
estimate of population growth rate provides further support for this 
conclusion.
    Comment 62: One commenter noted that a single DPS (Oceania DPS) has 
been proposed for the range of breeding sites across the South Pacific 
Ocean basin from New Caledonia to French Polynesia and that NOAA also 
proposes to remove all protections under the ESA. The commenter notes 
that, last year, the Scientific Committee of the IWC completed an 
assessment of the recovery status of whales that breed in this region, 
concluding that these breeding populations had only recovered to within 
37 percent of pre-whaling numbers as of 2012 (IWC 2015). This commenter 
notes that this is well below the 60 percent recovery threshold that 
was originally proposed as indicative of recovery under the final 
recovery plan. Furthermore, it is far below apparent recovery of 
adjacent breeding stocks off west and east Australia (90 percent and 63 
percent, respectively). The reason for this relatively low recovery 
rate is not known, but this commenter believes that it is adequate 
cause for continuing concern and listing under the ESA.
    Another commenter asserted that the proposal to identify and delist 
the Oceania DPS is troubling, given the major uncertainties underlying 
stock definition and status. This commenter noted that the BRT itself 
showed substantial concern for this DPS (29 percent of the votes cast 
by the NMFS' BRT were suggesting a ``moderate risk''

[[Page 62289]]

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

[[Page 62290]]

distribution of points was quite different in that 68 percent of the 
points were allocated to the ``not at risk of extinction'' category, 
reflecting much more certainty about the low level of extinction risk 
of this DPS compared to that for the Western North Pacific DPS (which 
will now, coincidentally, be listed as endangered under this final 
rule). We see no parallel between these two examples.
    The comparison the other commenter made between the Oceania and 
Cape Verde Islands/Northwest Africa DPSs is not valid. We have a much 
higher abundance estimate for the Oceania DPS (approximately 4,300 
whales compared to less than 100 for the Cape Verde Islands/Northwest 
Africa DPS), good information on where whales are, some information 
about movements between areas, and a fair degree of reliability around 
the abundance estimate. In contrast, there is a great lack of knowledge 
and study of the Cape Verde Islands/Northwest Africa DPS, and only one 
genetics study that indicates there is more than one breeding 
population for humpback whales feeding in central and eastern North 
Atlantic. It is appropriate to use additional caution in the case of 
the Cape Verde Islands/Northwest Africa DPS, given the considerable 
uncertainty about where the central and eastern North Atlantic animals 
breed and the likelihood that the abundance of this DPS is extremely 
low (less than 100).
    We know there are significant genetic differences between some of 
the regional breeding grounds within the Oceania DPS, but, 
unfortunately, there are no accepted estimates of abundance for some of 
the regions currently aggregated into the Oceania stock (e.g., Tonga, 
French Polynesia). Even if we had reliable regional estimates, we have 
no way of allocating the historical catches in the Antarctic feeding 
grounds to regional breeding grounds, with confidence. Therefore, the 
IWC chose to undertake the comprehensive assessment for Oceania as an 
aggregate, and the BRT took this same approach. The commenter who 
expressed concern about the likelihood of a positively biased estimate 
for the Oceania DPS because of the exchange among areas makes a good 
point. On the other hand, abundance estimates are also likely to be 
negatively biased because we are almost certainly not surveying some 
significant habitats within the vast area of Oceania, and as a result, 
there are probably many whales with a zero probability of capture in 
the survey years that lead to abundance estimates. Please see our 
response to Comment 5 for an explanation of why statistically 
significant differences between populations are not sufficient 
justification for identifying DPSs.
    Comment 63: One commenter noted that the longest humpback whale 
migration on record is not from Costa Rica to Antarctica (Rasmussen et 
al. 2007) as stated on page 24 of the proposed rule (80 FR 22304; April 
21, 2015 at 22308); rather, they state, the longest minimum return 
movement has been documented as 18,840 km from American Samoa to the 
Antarctic Peninsula (Robbins et al. 2011). This extreme movement is an 
example of the complexity of movement in the South Pacific, and the 
challenges that we face in understanding its status.
    Response: We appreciate the updated information on the longest 
humpback whale migration distance. The updated information on maximum 
migration distance has been considered but does not cause us to change 
the determinations in this final rule. Our listing determinations are 
supported by consideration of the best available scientific and 
commercial information.

Comments on the Southeastern Pacific DPS

    Comment 64: Two commenters noted that NMFS stated that the 
Southeastern Pacific DPS has no trend information, yet NMFS is not 
listing it as endangered. One of these commenters noted that the study 
on which NMFS relies for the population estimate uses data collected 
from non-systematic sightings by whale watch vessels, data that NMFS 
virtually never uses for its U.S. stock assessments because of the 
unreliability of data from non-systematic tracks used by commercial 
whale watching vessels. Having provided that population estimate, the 
commenter added, NMFS failed to include in the discussion an important 
recommendation from this study, which was that there is a pressing need 
for information on ``population parameters such as survival and birth 
rates, population growth rates and movements, all of which are still 
poorly known for this population'' (Felix et al. 2011). This commenter 
stated that it would seem important to better understand all of this 
information before proposing to remove all protections.
    One commenter expressed concern about the threat of fishing gear 
entanglement, noting that NMFS indicated that entanglement poses the 
most serious risk to this DPS. The commenter stated that the problem of 
entanglement is significant enough for the proposed Southeastern 
Pacific DPS that researchers have recently warned that the ``intensive 
use of gillnets and the increasing use of longlines in artisanal 
fisheries represent serious threats to the conservation of large 
cetaceans in Peru and the Southeast Pacific and need to be addressed by 
national and regional conservation authorities'' (Garc[iacute]a-Godos 
et al. 2013). The commenter quoted from a study during a single year in 
Ecuador that extrapolated observed bycatch rates, resulting in a total 
bycatch in Ecuador in 2005 ``estimated to be 25 whales (C.I. 95 
percent, 20-32). This high bycatch rate is the result of the over-
dimensioned artisanal fishing fleet and the lack of fishing 
management'' (Felix et al. 2005). The commenter stated that Alava et 
al. (2011) confirmed that this bycatch is continuing in Ecuador, 
estimating that ``bycatch mortality is equivalent to 15 or 33 whales a 
year'' depending on assumptions of population size interacting with the 
estimated 15,000 vessels fishing off Ecuador; these authors expressed 
concern about the Southeastern Pacific DPS' breeding grounds becoming a 
hot spot for bycatch and cautioned that ``mitigation strategies and 
precautionary management and conservation measures are required to 
protect this vulnerable stock of whales in the long term.'' The 
commenter added that we did not consider this study, which also depicts 
a declining birth rate off Ecuador--contrasting to higher birth rates 
in Colombian calving areas. The commenter noted that the authors warn, 
``[c]onsidering low birth rates [off Ecuador] of less than 8% and 62% 
survival rates for this stock and possibly ~1% of the total population 
bycaught per year, the bycatch problem seems to be far more severe and 
can pose a serious threat for this humpback whale population 
survival.''
    This commenter noted that Capella Alzueta et al. (2001), cited in 
the status review report, looked at stranded animals and found the 
``annual frequency of occurrence over the 15-year period indicates an 
increasing trend of entanglement and vessel strike since 1996.'' The 
commenter asserted that the BRT mislead readers by implying that 
humpback whales are not struck by ships, even though Capella Alzueta et 
al. (2001) report increasing trends in carcasses evidencing both vessel 
collisions and entanglement.
    With regard to other threats to this stock, the same commenter 
noted that the status review cited a study from ten years ago that 
found that oil and gas production is increasing in Ecuador and 
stipulated energy development is likely to expand if oil and gas 
reserves are discovered in the area but indicated that ``it does not 
currently pose a threat to this population.'' Indeed, the

[[Page 62291]]

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

[[Page 62292]]

that predators eat at least 20 million tonnes annually (32 percent 
total krill biomass). Trigger levels are set so that fishing cannot be 
too concentrated in one area. At these low rates fishing has a very 
minimal impact on predators and other species in the food chain.
    Given what we know about the Southeastern Pacific DPS of the 
humpback whale and the threats it faces, we still conclude that the DPS 
is at low risk of extinction, now and within the foreseeable future. We 
have based our determination on the best available scientific and 
commercial information, including an evaluation of ongoing conservation 
efforts (see our response to Comment 65).
    Comment 65: The Directorate for Marine and Coastal Affairs and 
Aquatic Resources (DAMCRA) of the Colombian Ministry of Environment and 
Sustainable Development stated that it will maintain the humpback whale 
as ``vulnerable'' (IUCN), and it provided references for population 
size estimates in Malaga Bay (857--Florez-Gonzalez et al. 2007) and 
Gorgona Island (1,366--Escobar 2009; Caballero et al. 2000, 2001, 
2009). It also provided some biological and conservation effort 
information (the Plan of Action for the Conservation of the Aquatic 
Mammals in the Southeast Pacific of the Permanent Commission of the 
Southeast Pacific; the Strategy for the Conservation of the Humpback 
Whale of the Southeast Pacific; the recent adhesion of Colombia to the 
International Whaling Commission for the Regulation of the Hunt of 
Whales (Law 1348 of 2009); National Action Plan for the Conservation of 
the Aquatic Mammals of Colombia; the Diagnosis of the State of 
Knowledge and Conservation of the Aquatic Mammals in Colombia; and the 
Plan of Migratory Species, Diagnosis and Identification of Actions for 
the Conservation and the Sustainable Management of Migratory Species of 
the Biodiversity in Colombia. Finally, Colombia also provided a paper 
by Carmona et al. (2011) entitled ``Occurrence and encounter rates of 
marine mammals in the waters around the Malpelo Island and to the 
continent.''
    Response: We acknowledge and appreciate the information Colombia 
has provided and are encouraged to know about Colombia's humpback whale 
conservation efforts.

Comments on the Arabian Sea DPS

    Comment 66: One commenter asserted that we underestimated the risk 
of climate change vs. geography-based protections for the Arabian Sea 
DPS.
    Response: The comment is unclear. Our proposal to list the Arabian 
Sea DPS as endangered was partially based on the potential impact of 
climate change within the foreseeable future on a species that is so 
restricted geographically that it cannot adapt to climate change by 
moving elsewhere. In any case, we are finalizing a listing for this DPS 
at the highest possible level (endangered).

Comments on ``Depleted'' Status under the MMPA

    Comment 67: Several commenters asserted that removal of any DPSs 
from the list of endangered or threatened species would result in loss 
of depleted status under the MMPA. The commenters noted that NMFS could 
re-designate a species or stock as depleted if warranted.
    Response: We agree with the commenters that a species or stock that 
is considered to be depleted solely on the basis of an ESA listing 
loses that status if it is removed from the list of threatened or 
endangered species. Section 3(1) of the MMPA defines ``depleted'' as 
``any case in which:'' (1) the Secretary ``determines that a species or 
population stock is below its optimum sustainable population;'' (2) a 
state to which authority has been delegated makes the same 
determination; or (3) a species or stock ``is listed as an endangered 
species or a threatened species under the [ESA]'' (16 U.S.C. 1362(1)). 
In the case of a species or stock that achieved its depleted status 
solely on the basis of its ESA status, the species or stock would cease 
to qualify as depleted under the terms of the definition set forth in 
section 3(1) if the species or stock is no longer listed as threatened 
or endangered. Humpback whales were considered depleted species-wide 
under the MMPA solely on the basis of the species' ESA listing. Upon 
the effective date of this rule, humpback whales that are listed as 
threatened or endangered will retain depleted status under the MMPA. 
Humpback whales that are not listed as threatened or endangered will 
not have depleted status under the MMPA. We note that the DPSs 
established in this final rule that occur in waters under the 
jurisdiction of the United States do not equate to the existing MMPA 
stocks for which Stock Assessment Reports (SARs) have been published in 
accordance with section 117 of the MMPA (16 U.S.C. 1386). For further 
information on how this rulemaking affects existing MMPA stocks in U.S. 
waters, please see ``Effects of this Rulemaking,'' below.
    Comment 68: One commenter suggested that NMFS ask the BRT to re-
convene as soon as possible to determine if any of the DPSs proposed to 
be delisted are below their OSP. The commenter also recommended that in 
the future NMFS consider rulemaking approaches that would avoid any 
lapse in depleted status for stocks that are below their OSP.
    Response: The specific charge to the Humpback Whale BRT was to 
assess and describe the status of humpback whales pursuant to the ESA, 
and to identify potential DPSs and evaluate the extinction risk of 
those potential DPSs. NMFS did not ask the BRT to determine MMPA stock 
delineations or evaluate any MMPA stocks relative to OSP because NMFS 
did not want to conflate the two laws and their different standards for 
evaluating species and populations. As described below in the ``Effects 
of this Rulemaking'' section, at the time of a delisting, NMFS may 
choose to initiate a rulemaking under MMPA section 115(a) if 
information in its files or information presented by a Scientific 
Review Group indicates that the species or stock is below its OSP. In 
such cases, NMFS agrees that it would be beneficial to avoid or 
minimize any lapse in depleted status and associated MMPA protections 
for marine mammals that may be below their OSP. NMFS is evaluating 
different approaches to minimize any such lapse.
    Comment 69: One group of commenters asserted that depleted status 
under the MMPA should be maintained for all humpback whales. The 
commenters stated that any change in an unlisted DPS' depleted status 
can occur only through a separate rulemaking.
    Response: We disagree with the commenters. Consistent with the D.C. 
Circuit's opinion in In re Polar Bear Endangered Species Act Listing 
and Section 4(d) Rule Litigation, 720 F.3d 354 (D.C. Cir. 2013), we 
believe that the process described in MMPA section 115(a) applies only 
to the first basis for designating a species as depleted (i.e., when 
the agency determines that the species is below its OSP). Therefore, we 
are required to issue a rule in accordance with the process described 
in section 115(a) to determine that a species or stock is no longer 
depleted in cases where we previously issued a rule pursuant to section 
115(a) designating the species or stock as depleted on the basis that 
it is below its OSP. However, in the case of a species or stock that 
achieved depleted status solely on the basis of an ESA listing, 
depleted status automatically terminates if the species or stock is 
removed from the list of threatened or endangered species. For more 
information, please see the

[[Page 62293]]

response to Comment 67 and ``Effects of this Rulemaking,'' below.
    Comment 70: One commenter stated that PBR for the MMPA Gulf of 
Maine stock would increase from 2.6 to between 13.4 and 26 if the West 
Indies DPS is no longer ESA-listed. The commenter noted that current 
fishery-related mortality is 7.2 individuals per year, which is above 
the current PBR but would likely be below the new PBR and thus this 
stock would no longer be a priority under the MMPA.
    Response: The Gulf of Maine stock of humpback whales partially 
coincides with the West Indies DPS, which is no longer listed under the 
ESA. Therefore, the Gulf of Maine stock will no longer have depleted 
status under the MMPA. The stock's PBR is expected to increase 
following the change in depleted status, because the depleted status 
affects the selection of the recovery factor used in the PBR 
calculation. Despite the fact that fishery-related mortality was 
exceeding the previously-defined PBR for the Gulf of Maine stock (2.6), 
the abundance of the West Indies DPS is large and increasing. The Gulf 
of Maine stock is only a small component of the total West Indies DPS 
of the humpback whale. The best estimate for the total population of 
humpback whales in the Gulf of Maine stock is 823 animals (Waring et 
al. 2014), while the overall population of the West Indies DPS is 
estimated to be between 10,400 and 10,752 individuals (Bettridge et al. 
2015; please see response to Comment 31). We plan to review the MMPA 
Gulf of Maine stock delineation with respect to the West Indies DPS in 
the near future. Any resulting change in stock delineation, strategic 
status, PBR, or other MMPA section 117 elements would be proposed in 
future stock assessment reports following Scientific Review Group 
review, with opportunity for public comment.
    Comment 71: One commenter stated that the MMPA is adequate in 
identifying depleted status, and no change is necessary to the MMPA at 
this time. Under 16 U.S.C. 1362, section 2(1)(A), ``the Secretary, 
after consultation with the Marine Mammal Commission and the Committee 
of Scientific Advisors on Marine Mammals established under subchapter 
III of this chapter, determines that a species or population stock is 
below its optimum sustainable population.'' This mechanism authorizing 
the Secretary to declare any DPS of the humpback whale as ``depleted'' 
is an open and transparent process and is adequate use of the best 
available scientific information.
    Response: We did not propose any changes to the MMPA, which is a 
Federal law that may only be amended by Congress.
    Comment 72: One commenter stated that if the West Indies DPS is not 
listed under the ESA, NMFS should reevaluate the inclusion of humpback 
whales as a strategic stock in the ALWTRP. For example, how does the 
MMPA Gulf of Maine stock (800 minimum population size, PBR = 2.7) and 
its management align with the West Indies DPS? If the Gulf of Maine is 
one of the primary feeding grounds for the West Indies DPS, how can the 
population estimate used in the ALWTRP 2014 final rule be so much 
smaller than that which is described in the proposed rule? There needs 
to be clear and sensible interplay between the ESA, MMPA, and ALWTRP.
    Response: We plan to review the MMPA Gulf of Maine stock 
delineation with respect to the West Indies DPS in the near future. Any 
resulting change in stock delineation, strategic status, PBR, or other 
MMPA section 117 elements would be proposed in future stock assessment 
reports following Scientific Review Group review, with opportunity for 
public comment. Once final, any changes would be reflected in other 
related management programs, as appropriate. Humpback whales will 
remain within the scope of the ALWTRP regulations unless changed by 
separate rulemaking, and this is not affected by the action we take 
today.

Comments on the Need for Approach Regulations

    Comment 73: One commenter stated that approach regulations are not 
necessary in Hawaii because vessels do not pose a threat to the 
population. The commenter added that the Sanctuary regulations provide 
enough protection, given the high density of humpback whales there that 
overlap with whale watching. Further, the commenter suggested, NMFS 
determined that vessel collisions pose a negligible impact to the 
Hawaii DPS and, when they do occur, there is little warning, so 
approach regulations would not be helpful. Instead, the commenter 
believes we should enhance outreach efforts to educate the public on 
safe approach distances.
    Response: We appreciate the comments received in response to our 
request on this issue. As a direct consequence of our final listing 
determination, the current regulations protecting whales from approach 
in Hawaii, which were promulgated only under authority of the ESA, are 
no longer supported. Therefore, upon the effective date of this final 
rule, the existing regulations at 50 CFR 224.103(a) will be deleted and 
that paragraph of the regulations reserved. However, given the 
importance of the issue, we have determined that approach regulations 
in Hawaii should be developed through a separate rulemaking under the 
MMPA, in the form of an interim final rule published elsewhere in 
today's issue of the Federal Register. As detailed in the separate 
interim final rule, we have determined that relying solely on 
protections within the Sanctuary would be inadequate. Comments received 
in response to the request for information on this topic through our 
proposed rule were considered in connection with that process. There 
will also be a further opportunity for comment in response to the 
interim final approach regulations.
    To clarify the issues raised by the commenter, we have not 
determined that vessel collisions pose a negligible impact to the 
Hawaii DPS; we did, however, find that the mortality and serious injury 
incidental to Hawaii deep-set and shallow-set longline fisheries have a 
negligible impact on this DPS (79 FR 62105; October 16, 2014). While 
the analysis considered all sources of human-caused mortality and 
serious injury, including vessel strikes, the determination was 
specific to these fisheries.
    Comment 74: One commenter stated that approach regulations under 
the MMPA should be issued in Hawaiian waters and that we should work 
with the Sanctuary on its regulations.
    Response: As noted above, we developed a separate interim final 
rule to promulgate approach regulations for Hawaii under the MMPA, and 
this has been done in coordination with the Sanctuary managers. We 
believe the approach regulations that we are issuing, published 
elsewhere in this issue of the Federal Register, are largely consistent 
with the Sanctuary's regulations.
    Comment 75: The State of Hawaii Department of Land and Natural 
Resources (DLNR) noted that references to Hawaii State law protections 
were missing from the proposed rule. Under Hawaii Administrative Rules 
(HAR) section 13-244-40, the Hawaii DLNR prohibits approach within 100 
yards of a humpback whale in State waters (0-3 nmi). Under HAR sections 
13-256-16 and 19, the Hawaii DLNR prohibits the use of thrill craft and 
parasail vessels off South and West Maui to avoid possible adverse 
impacts on humpback whales. The Hawaii DLNR recommends that the final 
rule include references to the State of Hawaii's relevant rules.

[[Page 62294]]

    Response: We acknowledge the Hawaii DLNR's comment and appreciate 
the reference to their regulations.
    Comment 76: The Hawaii DLNR also stated that the March 26, 2015, 
NOAA rule revising regulations within the Sanctuary proposed to 
strengthen the Sanctuary's humpback whale approach regulation to 
address ``interceptions,'' otherwise known as leapfrogging (80 FR 
16223). It noted that, though the State can regulate vessel approach 
out to 3 nm, and the Sanctuary can regulate approach in Federal and 
State waters of the Sanctuary, these efforts alone do not sufficiently 
protect humpback whales from vessel interactions throughout the 
Hawaiian Islands and out to the seaward boundary of the U.S. EEZ (200 
mi). Therefore, the Hawaii DLNR encourages NOAA to promulgate the 100-
yard approach regulations and 1,000-ft overflight regulation under the 
MMPA, as this would make regulations consistent throughout state and 
Federal waters off Hawaii, thus improving compliance. NOAA should also 
consider including those provisions from the Sanctuary proposed rule 
that address leapfrogging. The Hawaii DLNR intends to adopt these 
provisions.
    Response: We are issuing an interim final rule to implement 
approach regulations in Hawaii under the MMPA, published elsewhere in 
this issue of the Federal Register. These regulations are similar to 
the State of Hawaii regulations and the Sanctuary regulations, and they 
include an additional provision prohibiting interception (or 
``leapfrogging''). Please see the interim final rule published 
elsewhere in today's issue of the Federal Register for additional 
details.
    Comment 77: The State of Alaska noted that NMFS promulgated the 
approach regulations in Alaska under both the ESA and the MMPA, so if 
the ESA status of the Hawaii DPS is revised, the authority under MMPA 
should remain. For the Western North Pacific DPS, which is proposed to 
be listed as threatened, authority for this regulation under both the 
ESA and MMPA should be valid. The State supported retaining the 
approach regulations in U.S. waters off Alaska because of the 
conservation benefits that will accrue to both the proposed threatened 
Western North Pacific DPS and to the increasing number of whales in the 
Hawaii DPS that frequent Alaska waters in summer. Potential areas of 
concern at present for this DPS include ship strikes and entanglements, 
which are currently at low levels, but continued enforcement of 
approach regulations will assist in keeping those levels low.
    Response: We appreciate the State of Alaska's comments, and we 
concur. In a separate, direct final rule (publishing elsewhere in 
today's issue of the Federal Register), we are publishing a technical 
correction making minor amendments to the regulations currently set out 
in the part of the Code of Federal Regulations that applies to 
endangered marine and anadromous species (at 50 CFR 224.103(b)) and 
recodifying them so that they also appear in the part that applies to 
threatened marine and anadromous species (at 50 CFR 223.214) and in the 
part setting out MMPA regulations (at 50 CFR 216.18). Setting out these 
approach regulations at 50 CFR 223.214 will ensure that threatened 
humpback whales in Alaska (which includes the threatened Mexico DPS) 
will also be protected under the ESA approach regulations. As noted 
above, we have determined that the Western North Pacific DPS is 
endangered instead of threatened (see Western North Pacific DPS section 
for rationale), so the approach regulations will also remain at 50 CFR 
224.103 for their continuing protection. Setting the regulations out at 
216.18 reflects that the approach regulations in Alaska were also 
originally promulgated under the authority of the MMPA and that they 
protect all whales in Alaskan waters whether listed under the ESA or 
not.

Comments on Critical Habitat

    Comment 78: Colombia provided an atlas of distribution, migratory 
routes, and critical and threatened habitat for large whales in the 
East Pacific.
    Response: We appreciate the information. However, pursuant to the 
regulations implementing the ESA, we lack authority to designate 
critical habitat in non-U.S. waters (50 CFR 424.12(g)).
    Comment 79: Jamaica stated that the Silver-Navidad-Muchoir bank 
complex is a major breeding area in the West Indies and could qualify 
as critical habitat.
    Response: We appreciate Jamaica's comment. However, pursuant to the 
regulations implementing the ESA, we lack authority to designate 
critical habitat in non-U.S. waters (50 CFR 424.12(g)).
    Comment 80: One commenter noted that protecting habitat will be 
difficult without the additional protections of the ESA, and most of 
the threats require active management of habitat.
    Response: A critical habitat designation has limited regulatory 
effect and does not mean that NMFS will actively manage habitat. 
Rather, when an area is designated as critical habitat, Federal 
agencies must consult with us on any action they authorize, fund, or 
carry out that may affect the area to ensure that the action is not 
likely to destroy or adversely modify that habitat (16 U.S.C. 
1536(a)(2)).
    There are separate tools for protection of habitat that are beyond 
the scope of this rulemaking. For example, section 112(e) of the MMPA 
gives us authority to promulgate regulations to protect habitat for 
strategic stocks. Stocks that maintain depleted status (see Comments on 
``Depleted'' Status under the MMPA) due to endangered/threatened status 
will remain strategic. Other laws will continue to protect habitat used 
by humpback whales (e.g., Clean Water Act, National Environmental 
Policy Act).
    Comment 81: One commenter stated that critical habitat is not 
necessary in Guam and the Commonwealth of the Northern Mariana Islands 
(CNMI) because it is unlikely to provide a measureable conservation 
benefit to the DPS and there are no threats there to the Western North 
Pacific DPS. Another commenter stated that, despite NMFS' clear 
statutory mandate, NMFS has never designated critical habitat for 
humpback whales. This commenter noted that amending the listing status 
for humpback whales would trigger NMFS' duty anew. If NMFS goes forward 
with its proposal, this commenter asserted, NMFS must designate 
critical habitat for any and all ESA-listed humpback whale populations 
in U.S. waters.
    Response: The humpback whale was first listed under the precursor 
to the ESA in 1970, and was transferred to the list of endangered 
species under the original ESA before the statute was amended to 
require designation of critical habitat for listed species. Therefore, 
there was no statutory requirement to designate critical habitat for 
the endangered humpback whale. We agree with the commenter that, upon 
revising the listing status of the humpback whale to recognize 14 DPSs 
and list five of them as threatened or endangered, the obligation 
arises to designate critical habitat in areas under U.S. jurisdiction 
for the listed DPSs to the maximum extent prudent and determinable (16 
U.S.C. 1533(a)(3)(A)). Our regulations provide that critical habitat is 
not determinable when data sufficient to perform required analyses are 
lacking and/or the biological needs of the species are not sufficiently 
well known (50 CFR 424.12(a)(2)). At this time, we find that critical 
habitat is not determinable for both of these reasons, as discussed 
further in the ``Effects of this Action'' section, below.

[[Page 62295]]

    We are currently evaluating the habitat needs of humpback whale 
DPSs that occur in U.S. waters to determine habitat areas that may be 
essential in supporting the conservation of the species, including 
areas occupied at the time of listing that contain essential physical 
and biological features for humpback whales and unoccupied areas that 
may be essential for their conservation (16 U.S.C. 1532(5)). At this 
time, we cannot predict whether designating critical habitat in Guam 
and CNMI or anywhere else will be ``prudent,'' e.g., whether it will 
provide a conservation benefit to the species (50 CFR 
424.12(a)(1)(ii)). If we identify areas that meet the definition of 
critical habitat, we will publish a proposed rule and solicit public 
comments on the proposal before finalizing any critical habitat 
designation.

Comments on Monitoring Humpback Whale DPSs

    Comment 82: One commenter provided actions that should be included 
in the Monitoring Plan: Continuation of SPLASH, at least in part; 
Entanglement Response Program; abundance estimates by aerial surveys; 
humpback whale strike/contact database; serious injury determinations; 
sanctuary research efforts; outreach programs; ocean etiquette; 
guidelines for boater and ocean users; sanctuary ocean count; sanctuary 
interagency law enforcement task force; ship strike workshop; humpback 
whale protections working group. Another commenter (MMC) suggested that 
we reexamine population structure and DPSs with more genetic sampling 
and other studies, that we reconvene the BRT after the final 
determination to seek advice on humpback whale research and monitoring, 
that we share advice with states and countries, and that we announce 
the reconvening of a BRT after 5 years.
    Response: Today we are issuing a Monitoring Plan for the nine 
humpback whale DPSs that are not being listed under the ESA. The 
Monitoring Plan Coordinator will work with collaborators to identify 
specific surveys and monitoring efforts that we can use to continue 
monitoring these humpback whales. We believe most, if not all, of the 
actions identified by the commenter would provide valuable information, 
and we will pursue them within fiscal and other constraints. As far as 
the recommendation that we reconvene the BRT to seek advice on research 
and monitoring, we already consulted with many BRT members as we 
developed the Monitoring Plan. We plan to collaborate with States and 
countries in an effort to gather data from all humpback whale DPSs that 
are not listed under the ESA. With regard to reconvening a BRT after 5 
years, the ESA requires us to conduct a 5-year review after a species 
has been removed from threatened or endangered status. As we get closer 
to that date, we will know more about our plans for conducting that 
review.
    Comment 83: The State of Massachusetts recommended that NMFS fund 
population surveys to update abundance and trend information.
    Response: Population surveys are important, and we intend to work 
with collaborators from the States and other Federal agencies to take 
advantage of ongoing surveys and stranding databases to monitor 
abundance, trends, and health of humpback whale DPSs that are not being 
listed under the ESA. However, we cannot predict our budget or 
competing priorities from year to year. Further, we cannot commit or 
require any Federal agency to obligate or pay funds in contravention of 
the Anti-Deficiency Act, 31 U.S.C. 1341, or any other law or 
regulation.
    Comment 84: The State of Alaska noted that various groups have 
expressed concerns about the potential for increased ship strikes by 
cruise ships and whale-watching vessels as the humpback whale 
population increases in Southeast Alaska, but pointed out that such 
``takes'' for DPSs that are not listed will still be prohibited under 
the MMPA (but no longer the ESA). The State of Alaska stated that if 
the proposed rule is finalized, the post-delisting monitoring effort 
will present opportunities for the State to comment on such concerns 
and the need to develop feasible mitigation measures, an effort to 
which the State would like to contribute.
    Response: We worked closely with the State of Alaska and other 
entities to develop a Monitoring Plan, sent it out for public comment 
and peer review, and are issuing it today with publication of this 
final rule. We also appreciate the State of Alaska's willingness to 
contribute to developing feasible mitigation measures.
    Comment 85: One commenter noted that funding for population 
monitoring would be reduced and eventually removed if ESA protections 
are removed from humpback whales. This commenter asserted that it is 
unlikely that a reduction in sustainability of any humpback whale DPS 
will be acknowledged until it is too late. Adding the DPS back to the 
Endangered and Threatened Species list and developing a recovery plan 
will take too long.
    Response: We disagree. Under the MMPA we are required to assess 
strategic marine mammal stocks in the United States every year, and 
non-strategic stocks every 3 years. We do not expect other countries to 
discontinue their monitoring efforts of humpback whale DPSs that are 
not listed under the ESA. For example, the IWC will continue to assess 
the status of humpback whale stocks in order to conserve and manage 
them. Finally, it is important to note that the Monitoring Plan we are 
issuing today per section 4(g)(1) of the ESA (16 U.S.C. 1533(g)(1)) 
establishes a framework for continued monitoring and assessment of 
threats for the next 10 years (twice the minimum 5-year monitoring 
window required by the ESA). We do not expect any existing funding to 
be reduced or removed with removal of ESA protections.
    Comment 86: One commenter noted that some of the proposed DPSs are 
simply too large to effectively or routinely study and manage, 
including in the event of post-delisting monitoring.
    Response: Size of a DPS and ability to manage it did not factor 
into our identification of DPSs (please see response to Comment 3 for 
more details on DPS Policy criteria). DPSs must meet the criteria of 
the DPS Policy, and we do our best to study and manage DPSs once they 
are identified and listed under the ESA. We will use the best 
scientific and commercial data available to monitor DPSs that are not 
listed under the ESA.

Comments on the Draft Monitoring Plan

    Comment 87: The Alaska Department of Fish and Game (ADFG) supported 
our efforts and offered editorial suggestions for clarification and 
consistency in the Monitoring Plan.
    Response: We acknowledge ADFG's support, and we appreciate the 
editorial suggestions, which we have incorporated into the final 
Monitoring Plan that we are issuing today.
    Comment 88: The Massachusetts Division of Marine Fisheries (DMF) 
fully supports the development of the Monitoring Plan and is interested 
in contributing to a successful Monitoring Plan to ensure that NMFS and 
its collaborators can successfully detect changes in the status of the 
stock and ensure the non-listed DPSs are appropriately managed.
    Response: We acknowledge MA DMF's support and appreciate its 
willingness to contribute.
    Comment 89: The MA DMF strongly urges NMFS and collaborators to 
coordinate efforts to collect photo ID

[[Page 62296]]

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

[[Page 62297]]

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

[[Page 62298]]

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

[[Page 62299]]

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

[[Page 62300]]

et al. (2011); Gattuso and Hansson (2011); Gaylor et al. (2015); 
Goldbogen et al. (2013); Grebmeier (2012); Hattenrath-Lehmann et al. 
(2015); Haigh et al. (2015); Hare et al. (2007); Hauser et al. (2010); 
Hedley et al. (2011); Hester et al. (2008); Hollowed et al. (2012); 
Honisch et al. (2012); Ilyina et al. (2010); IWC (2015); Ivashchenko et 
al. (2013); IWC (2012); Jensen et al. (2015); Kajawara et al. (2004); 
Kato (unpublished abstract); Kawaguchi et al. (2013); Kent et al. 
(2012); Kershaw (2015); Kirkley et al. (2014); Krieger and Wing (1984, 
1986); Kroeker et al. (2010); Kroeker et al. (2013); Laist et al. 
(2014); Lefebvre et al. (2016); Leandro et al. (2010); Le Quere et al. 
(2015); Lischka et al. (2010); Lewitus et al. (2012); Maclean and 
Wilson (2011); Martinez-Levasseur et al. (2011); Martinez-Levasseur et 
al. (2013a); Martinez-Levasseur et al. (2013b); McHuron et al. (2013); 
Moore et al. (2015); Moura et al. (2013); Moy et al. (2009); NOAA 
National Climatic Data Center (2015); NMFS (2015); Nemoto (1957, 1959); 
Noad et al. (2005); Okamoto et al. (2013); Olavarria et al. (2006); 
Pace et al. (2014); Pachauri et al. (2014); Parmesan (2006); Parmesan 
and Yohe (2003); Paxton et al. (2011); Payne et al. (1986); Ramp et al. 
(2015); Risch et al. (2012); Robbins et al. (2011); Rolland et al. 
(2012); Rosenbaum et al. (2014); Schonberg et al. (2014); Sible et al. 
(2002); Simmonds and Eliott (2009); Simmonds and Isaac (2007); Stevick 
et al. (2015); Stevick et al. (2016); Strinddberg et al. (2011); Tanabe 
et al. (1994); Tatters et al. (2012); Thomas et al. (2004); Trainer et 
al. (2012); Tyack et al. (2011); Van Bressem et al. (2009); van derHoop 
et al. (2014); Van Waerebeek et al. (2013); Vikingsson et al. (2015); 
Wade et al. (2016); Warren et al. (2013); Wiley et al. (2011); 
Witteveen et al. (2006); Witteveen et al. (2008); Wright (2008); Wright 
et al. (2015); Yasunaga and Fujise (2009a); and Yasunaga and Fujise 
(2009b).
Identification of DPSs
    As we discussed earlier in our responses to comments on particular 
DPSs, the comments that we received on the proposed rule did not change 
our conclusions regarding the identification of DPSs. We reviewed 
relevant and recently available scientific data that were not included 
in the status review report and proposed rule: Barendse et al. 2011; 
Carvalho et al. 2014; Elwen et al. 2014; Ersts et al. 2011; Fossette et 
al. 2014; Kershaw 2015; Rosenbaum et al. 2014; Stevick et al. 2015; 
Stevick et al. 2016; and Van Waerebeek et al. 2013. Based on the best 
available scientific and commercial data, we reaffirm that the DPSs 
identified in the proposed rule are discrete and significant. 
Therefore, we incorporate herein all information on the identification 
of DPSs provided in the status review report and proposed rule (80 FR 
22304; April 21, 2015).
    In summary, we apply our joint DPS policy (61 FR 4722; February 7, 
1996) to identify 14 discrete and significant DPSs: West Indies, Cape 
Verde Islands/Northwest Africa, Western North Pacific, Hawaii, Mexico, 
Central America, Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, West Australia, East Australia, Oceania, Southeastern 
Pacific, and Arabian Sea.
    We next present a summary of the extinction risk analysis and our 
listing determinations for each DPS. Additional detail may be found in 
the proposed rule.
West Indies DPS
    The comments that we received on the West Indies DPS and additional 
information that became available since the publication of the proposed 
rule did not change our conclusion that this DPS does not warrant 
listing. However, as previously explained in a response to Comment 31, 
we determined that we should not rely on the MONAH abundance estimate 
(12,312 individuals) because the underlying data are not final, and 
they are not verifiable. We incorporate herein all other information on 
the West Indies DPS provided in the status review report and proposed 
rule (80 FR 22304; April 21, 2015). The following represents a brief 
summary of that information.
    The West Indies DPS consists of the humpback whales whose breeding 
range includes the Atlantic margin of the Antilles from Cuba to 
northern Venezuela, and whose feeding range primarily includes the Gulf 
of Maine, eastern Canada, and western Greenland. While many West Indies 
whales also use feeding grounds in the central (Iceland) and eastern 
(Norway) North Atlantic, many whales from these feeding areas appear to 
winter in another unknown location.

Abundance and Trends for the West Indies DPS

    The most reliable abundance estimates for this DPS are from the 
1992-1993 YONAH survey on the breeding grounds in the Caribbean: 10,400 
(95 percent CI, 8,000-13,600) individuals according to genetic ID data; 
and 10,752 (CV = 6.8 percent) individuals according to photo ID data 
(Stevick et al. 2003). Stevick et al. (2003) estimated the average 
annual growth rate at 3.1 percent (SE = 1.2 percent) for the period 
1979-1993, but because of concerns that the same data may have been 
used twice and potentially lead to an over-estimate of the precision of 
the trend estimate, they re-calculated the trend analysis using only 
one set of abundance estimates for each time period. The revised trend 
for this time period was still 3.1 percent (SE = 1.2 percent).
    In contrast, estimates from feeding areas in the North Atlantic 
indicate strongly increasing trends in Iceland (1979-1988 and 1987-
2007), Greenland (1984-2007), and the Gulf of Maine (1979-1991) 
(Bettridge et al. 2015). There is some indication that the increase 
rate in the Gulf of Maine has slowed in more recent years (6.5 percent 
from 1979 to 1991 (Barlow and Clapham 1997), 0-4 percent from 1992-2000 
(Clapham et al. 2003a)). It is not clear why the trends appear so 
different between the feeding and breeding grounds. A possible 
explanation would be that the Silver Bank breeding ground has reached 
carrying capacity, and that an increasing number and percentage of 
whales are using other parts of the West Indies as breeding areas.

Section 4(a)(1) Factors for the West Indies DPS

    The best documented unusual mortality event (UME) for humpback 
whales attributable to disease occurred in 1987-1988 in the North 
Atlantic, when at least 14 mackerel-feeding humpback whales died of 
saxitoxin poisoning (a neurotoxin produced by some dinoflagellate and 
cyanobacteria species) in Cape Cod, Massachusetts (Geraci et al. 1989). 
The whales subsequently stranded or were recovered in the vicinity of 
Cape Cod Bay and Nantucket Sound, and it is highly likely that other 
unrecorded mortalities occurred during this event. Such events have 
been linked to increased coastal runoff. During the first 6 months of 
1990, seven dead juvenile (7.6 to 9.1 m long) humpback whales stranded 
between North Carolina and New Jersey. The significance of these 
strandings is unknown.
    Additional UMEs occurred in the Gulf of Maine in 2003 (12-15 dead 
humpback whales on Georges Bank), 2005 (7 in New England), and 2006-
2007 (minimum of 21 whales), with no cause yet determined but HABs 
potentially implicated (Gulland 2006; Waring et al. 2009). In the Gulf 
of Maine in 2003, a few sampled individuals among 16 humpback whale 
carcasses were found with saxitoxin and domoic acid (produced by 
certain species of diatoms, a different type of algae (Gulland 2006)). 
The BRT discussed the possible levels of unobserved mortality

[[Page 62301]]

that may be resulting from HABs and determined that, as the West Indies 
population had been affected by HABs in the past, it is likely 
experiencing a higher level of HAB-related mortality than is detected.
    The largest potential threats to the West Indies DPS are 
entanglement in fishing gear and ship strikes (vessel collisions); 
these occur primarily in the feeding grounds, with some documented in 
the mid-Atlantic U.S. migratory grounds. There are no reliable 
estimates of entanglement or ship-strike mortalities for most of the 
North Atlantic. During the period 2003-2007, the minimum annual rate of 
human-caused mortality and serious injury (from both entanglements and 
ship collisions) for the Gulf of Maine feeding population averaged 4.4 
animals per year (Waring et al. 2009). Off Newfoundland, an average of 
50 humpback whale entanglements (range 26-66) was reported annually 
between 1979 and 1988 (Lien et al. 1988); another 84 were reported 
entangled in either Newfoundland or Labrador from 2000-2006 (Waring et 
al. 2009). Not all entanglements result in mortality (Waring et al. 
2009). However, all of these figures are likely to be underestimates, 
as not all entanglements are observed. A study of entanglement-related 
scarring on the caudal peduncles of 134 individual humpback whales in 
the Gulf of Maine suggested that between 48 percent and 65 percent had 
experienced entanglements (Robbins and Mattila 2001).
    Ship strike injuries were identified for 8 percent (10 of 123) of 
dead stranded humpback whales between 1975-1996 along the U.S. East 
Coast, 25 percent (9 of 36) of which were along mid-Atlantic and 
southeast states (south of the Gulf of Maine) between Delaware Bay and 
Okracoke Island North Carolina (Wiley and Asmutis 1995). Ship strikes 
made up 4 percent of observed humpback whale mortalities between 2001-
2005 (Nelson et al. 2007) and 7 percent between 2005-2009 (Henry et al. 
2011) along the U.S. East Coast, and the Canadian Maritimes. Among 
strandings along the mid- and southeast U.S. coastline during 1975-
1996, 80 percent (8 of 10) of struck whales were considered to be less 
than 3 years old based on their length (Laist et al. 2001). This 
suggests that young whales may be disproportionately affected. However, 
those waters may be used preferentially by young animals (Swingle et 
al. 1993; Barco et al. 2002). It should be noted that ship strikes do 
not always produce external injuries and may therefore be 
underestimated among strandings that are not examined for internal 
injuries.
    HABs, vessel collisions, and fishing gear entanglements are likely 
to moderately reduce the population size and/or the growth rate of the 
West Indies DPS. All other threats, with the exception of climate 
change (unknown severity), are considered likely to have no or minor 
impact on population size or the growth rate of this DPS.

Extinction Risk Analysis for the West Indies DPS

    The BRT distributed 82 percent of its likelihood points for the 
West Indies DPS to the ``not at risk of extinction'' category and 17 
percent to the ``moderate risk of extinction'' category. Given the 
large population size (10,400-10,752, more than five times the 
population size that the BRT considered sufficient to demonstrate that 
a population was not at risk due to low abundance alone), moderately 
increasing trend, and the high percentage of likelihood points 
allocated to the ``not at risk of extinction'' category, we conclude 
that, despite the moderate threats of HABs, vessel collisions, and 
fishing gear entanglements and unknown severity of climate change as a 
threat, the West Indies DPS is not in danger of extinction throughout 
its range or likely to become so within the foreseeable future 
throughout its range.
    Next, per the Final SPOIR Policy, because we have determined that 
the DPS is neither endangered nor threatened based on a rangewide 
evaluation, we need to determine whether the West Indies DPS is in 
danger of extinction or likely to become so within the foreseeable 
future in a significant portion of its range. The BRT noted that there 
are some regional differences in threats for the West Indies DPS, but 
it was unable to identify any portions of the DPS that both faced 
particularly high threats and were so significant to the viability of 
the DPS as a whole that their loss would result in the remainder of the 
DPS being at high risk of extinction. We agree with the BRT's 
conclusions and conclude that there are no portions of the DPS that 
face particularly high threats and are so significant to the viability 
of the DPS that, if lost, the remainder of the DPS would be in danger 
of extinction or likely to become so within the foreseeable future. 
Therefore, we conclude that the DPS is not in danger of extinction in a 
significant portion of its range and is not likely to become so within 
the foreseeable future.

Conservation Efforts for the West Indies DPS

    While there are many ongoing conservation efforts that apply to the 
West Indies DPS, we do not need to further evaluate them in the context 
of this decision because they would serve only to further reduce the 
likely impact of threats.

Listing Determination for the West Indies DPS

    For the above reasons, we finalize our proposed determination that 
the West Indies DPS of the humpback whale does not warrant listing as 
threatened or endangered under the ESA.
Cape Verde Islands/Northwest Africa DPS
    The comments that we received on the Cape Verde Islands/Northwest 
Africa DPS and additional information that became available since the 
publication of the proposed rule did not change our conclusions 
regarding listing this DPS as endangered. Therefore, we incorporate 
herein all information on the Cape Verde Islands/Northwest Africa DPS 
provided in the status review report and proposed rule (80 FR 22304; 
April 21, 2015). The following represents a brief summary of that 
information.
    This DPS consists of the humpback whales whose breeding range 
includes waters surrounding the Cape Verde Islands as well as an 
undetermined breeding area in the eastern tropical Atlantic which may 
be more geographically diffuse than the West Indies breeding ground. 
Its feeding range includes primarily Iceland and Norway. The population 
of whales breeding in the Cape Verde Islands, plus this unknown area, 
likely represent the remnants of a historically larger population 
breeding around the Cape Verde Islands and northwestern Africa (Reeves 
et al. 2002). In our proposed rule, we stated that there is no known 
overlap in breeding range with North Atlantic humpback whales that 
breed in the West Indies, although overlap occurs among feeding 
aggregations in Iceland and Norway from different breeding populations. 
However, recent information provides some evidence to indicate there 
may be two different breeding areas in the Caribbean, with different 
breeding times, and the whales breeding in the southeast Caribbean seem 
to be more prevalent in the Northeast Atlantic feeding grounds (Stevick 
et al. 2015). Some humpback whales from the Cape Verde Islands breeding 
grounds have been re-sighted in the southeast Caribbean (Guadeloupe)

[[Page 62302]]

(Stevick et al. 2016), suggesting the southeast Caribbean may be part 
of the Cape Verde Islands/Northwest Africa DPS' breeding ground, though 
this has not been confirmed.

Abundance and Trends for the Cape Verde Islands/Northwest Africa DPS

    The population abundance and population trend for the Cape Verde 
Islands/Northwest Africa DPS are unknown. The Cape Verde Islands photo-
identification catalog contains only 88 individuals from a 20-year 
period (1990-2009) (Wenzel et al. 2010). Of those 88 individuals, 20 
(22.7 percent) were seen more than once, 15 were seen in 2 years, 4 
were seen in 3 years, and 1 was seen in 4 years. The relative high re-
sighting rate suggests a small population size with high fidelity to 
this breeding area, although the DPS may also contain other, as yet 
unknown, breeding areas (Wenzel et al. 2010).
    Little is known about the total size of the Cape Verde Islands/
Northwest Africa DPS, and its trend is unknown.

Section 4(a)(1) Factors for the Cape Verde Islands/Northwest Africa DPS

    For the Cape Verde Islands/Northwest Africa DPS, the threats of 
HABs, disease, parasites, vessel collisions, fishing gear entanglements 
and climate change are unknown. All other threats to this DPS are 
considered likely to have no or minor impact on the population size 
and/or growth rate.

Extinction Risk Analysis for the Cape Verde Islands/Northwest Africa 
DPS

    The BRT distributed 32 percent of its likelihood points for this 
DPS to the ``high risk of extinction'' category, 43 percent to the 
``moderate risk of extinction'' category, and 25 percent to the ``not 
at risk of extinction'' category. Unlike for the other DPSs we have 
identified, we have no reason to believe that this DPS' status has 
improved since humpback whales within the range of this DPS were listed 
as endangered. There is a high likelihood that the abundance of this 
DPS is low (much lower than the BRT's threshold of 500 individuals for 
a population that would be considered at high risk from low abundance, 
and potentially below the threshold of 100 individuals for a population 
that would be considered at extremely high risk). There is also 
considerable uncertainty regarding the risks of extinction of this DPS 
due to a general lack of data as reflected in the wide spread of BRT 
points. Therefore, we conclude that this DPS is in danger of extinction 
throughout its range.

Conservation Efforts for the Cape Verde Islands/Northwest Africa DPS

    Other than protections provided to humpback whales by the IWC and 
CITES, we are not aware of any ongoing conservation efforts for this 
DPS. The IWC has programs that provide protection to humpback whales 
from all DPSs. The IWC's Conservation Committee was established to 
consider a number of emerging cetacean conservation issues, and its 
role continues to evolve. The Conservation Committee collaborates 
closely with the IWC's Scientific Committee to understand and address a 
range of threats to whales and their habitats including whale watching, 
ship strikes, and marine debris. In addition, the humpback whale is 
currently an Appendix I species under CITES, which restricts 
international trade and provides an additional layer of protection 
against resumed whaling.

Listing Determination for the Cape Verde Islands/Northwest Africa DPS

    While the IWC and CITES conservation efforts are likely to benefit 
all humpback whales, they are not sufficient to change the extinction 
risk of this DPS. For the above reasons, we finalize our proposal to 
list the Cape Verde Islands/Northwest Africa DPS of the humpback whale 
as an endangered species under the ESA.
Western North Pacific DPS
    After reviewing the comments we received on the Western North 
Pacific DPS and reconsidering the information in the proposed rule, we 
have reached a different conclusion regarding the appropriate listing 
status for this DPS. Specifically, though we proposed to list the DPS 
as a ``threatened species,'' we will finalize the listing as an 
``endangered species.'' Additional information became available since 
the publication of the proposed rule, and some information had not been 
cited in the status review report (Darling and Mori 1992; Kato 
unpublished; Okamoto 2013; Wade et al. 2016), but this information did 
not influence our conclusion. We incorporate herein all information on 
the Western North Pacific DPS provided in the status review report and 
proposed rule (80 FR 22303; April 21, 2015). The following represents a 
brief summary of that information.
    The Western North Pacific DPS consists of the whales breeding/
wintering in the area of Okinawa and the Philippines, another 
unidentified breeding area (inferred from sightings of whales in the 
Aleutian Islands area feeding grounds), and those transiting the 
Ogasawara area. These whales migrate to feeding grounds in the northern 
Pacific, primarily off the Russian coast.

Abundance and Trends for the Western North Pacific DPS

    The abundance of humpback whales in the Western North Pacific was 
estimated to be around 1,000, based on the photo-identification, 
capture-recapture analyses from the years 2004-2006 by the SPLASH 
program (Calambokidis et al. 2008) from two primary sampling regions, 
Okinawa and Ogasawara. The growth rate for humpback whales in the 
Western North Pacific is estimated to be 6.9 percent (Calambokidis et 
al. 2008) between 1991-93 and 2004-2006, although this could be biased 
upwards by the comparison of earlier estimates based on photo-
identification records from Ogasawara and Okinawa with current 
estimates based on the more extensive records collected in Ogasawara, 
Okinawa, and the Philippines during the SPLASH program. However, the 
overall number of whales identified in the Philippines was small 
relative to both Okinawa and Ogasawara, so any bias may not be large. 
Given the possible bias in the rate of increase and the fact that it 
represents a combination of two populations that the BRT had proposed 
as separate DPSs (Okinawa/Philippines and Second West Pacific), it is 
not possible to make a definitive statement about the rate of increase 
of the Western North Pacific DPS.
    More recently, in advance of the June 2016 IWC Scientific Committee 
meeting in Slovenia, Wade et al. (2016) submitted a paper in which they 
used an integrated spatial multi-strata mark-recapture model to 
simultaneously estimate abundance for all winter and summer areas 
sampled during the SPLASH project in the North Pacific. We believe the 
multi-strata estimates are likely less subject to bias from capture 
heterogeneity, which has been shown to lead to substantial biases, and 
they use all the data (from both summer and winter), rather than 
estimating abundance from just part of the data. Given this, it seems 
reasonable to conclude that the multi-strata estimates calculated here 
are more accurate than the within-season Chapman-Peterson estimates. 
From these analyses, the multi-strata estimate for the Western North 
Pacific DPS is 1,059 (CV = 0.08). This is not significantly different 
from the earlier Calambokidis et al. (2008) estimate of about 1,000. 
Overall recovery seems to be slower than in the Central and Eastern 
North Pacific.

[[Page 62303]]

Humpback whales in the Western North Pacific remain rare in some parts 
of their former range, such as the coastal waters of Korea, and have 
shown no signs of a recovery in those locations (Gregr 2000; Gregr et 
al. 2000).
    The abundance of the Western North Pacific DPS is 1,059 
individuals, with unknown trend.

Section 4(a)(1) Factors for the Western North Pacific DPS

    The BRT noted that the Sea of Okhotsk currently has a high level of 
energy exploration and development, and these activities are likely to 
expand with little regulation or oversight. The BRT determined that the 
threat posed by energy exploration to the Okinawa/Philippines portion 
of the Western North Pacific DPS is medium, but noted that there was 
low certainty regarding this because specifics of feeding location (on 
or off the shelf) are unavailable. If feeding activity occurs on the 
shelf in the Sea of Okhotsk, energy exploration in this area could 
impact what is likely one of the most depleted subunits of humpback 
whales. The threat posed by energy exploration to the 2nd West Pacific 
portion of the Western North Pacific DPS was unknown.
    The BRT discussed the high level of fishing pressure in the region 
occupied by the Okinawa/Philippines portion of the Western North 
Pacific DPS (a small humpback whale population). Although specific 
information on prey abundance and competition between whales and 
fisheries is not known in this area, overlap of whales and fisheries 
has been indicated by the bycatch of humpback whales in set-nets in the 
area. The BRT determined that competition with fisheries is a medium 
threat for this DPS (Bettridge et al. 2015 at 56), given the high level 
of fishing and small humpback whale population.
    The likely range of the Western North Pacific DPS includes some of 
the world's largest centers of human activities and shipping. Although 
reporting of ship strikes is requested in the Annual Progress reports 
to the IWC, reporting by Japan and Korea is likely to be poor 
(Bettridge et al. 2015 at 94). A reasonable assumption, although not 
established, is that shipping traffic will increase as global commerce 
increases; thus, a reasonable assumption is that the level of the 
threat will increase. The threat of ship strikes was therefore 
considered to be medium for the Okinawa/Philippines portion of the 
Western North Pacific DPS and unknown for the 2nd West Pacific DPS 
portion.
    Whales along the coast of Japan and Korea are at risk of 
entanglement in fisheries gear and related mortality, although overall 
rates of net and rope scarring are similar to other regions of the 
North Pacific (Brownell et al. 2000). The reported number of humpback 
whale entanglements/deaths has increased for Japan since 2001 as a 
result of improved reporting, although the actual number of 
entanglements may be underrepresented in both Japan and Korea (Baker et 
al. 2006). The BRT concluded that the threat of fishing gear 
entanglement to this DPS was high for the Okinawa/Philippines portion 
of this DPS and unknown for the 2nd West Pacific portion of the DPS 
(Bettridge et al. 2015, Table 9). The level of confidence in 
understanding the minimum magnitude of this threat is medium for the 
Okinawa/Philippines portion of this DPS and low for the 2nd West 
Pacific portion of this DPS, given the unknown wintering grounds and 
primary migratory corridors.
    To summarize, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown, with 
the following exceptions: Energy development, competition with 
fisheries (Bettridge et al. 2015 at 56), whaling, and vessel collisions 
are considered likely to moderately reduce the population size or the 
growth rate of the Okinawa/Philippines portion of this DPS; and fishing 
gear entanglement is likely to seriously reduce the population size or 
the growth rate of the Okinawa/Philippines portion of this DPS 
(Bettridge et al. 2015, Table 9). The levels of these threats are 
higher than in most other regions of the world and are expected to 
increase, rather than decline (Bettridge et al. 2015 at 94). Also, the 
threats of underwater noise and ship strikes to this portion of the DPS 
are expected to increase as shipping traffic increases (Bettridge et 
al. 2015 at 94). In general, there is great uncertainty about the 
threats facing the 2nd West Pacific portion of this DPS.

Extinction Risk Analysis for the Western North Pacific DPS

    The BRT distributed 36 percent of its likelihood points for the 
Okinawa/Philippines portion of the DPS in the ``high risk of 
extinction'' category and 44 percent in the ``moderate risk of 
extinction'' category, with only 21 percent of the points in the ``not 
at risk of extinction'' category. The distribution of likelihood points 
among the risk categories indicates uncertainty. There was also 
considerable uncertainty regarding the risk of extinction of the 2nd 
West Pacific portion of this DPS, with 14 percent of the points in the 
``high risk of extinction'' category, 47 percent in the ``moderate risk 
of extinction'' category, and 39 percent in the ``not at risk of 
extinction'' category. The majority of likelihood points were in the 
``moderate risk of extinction'' category for both portions of the 
Western North Pacific DPS. Given the relatively low population size of 
the Western North Pacific DPS (1,059, about half the population size 
that the BRT considered sufficient to demonstrate that a population was 
not at risk due to low abundance alone), the moderate reduction of its 
population size or growth rate likely from energy development, 
competition with fisheries, whaling, and vessel collisions, the serious 
reduction of its population size or growth rate likely from fishing 
gear entanglements, the fact that the majority of the BRT's likelihood 
points were in the ``moderate risk of extinction'' category for both 
portions of the DPS, and the considerable uncertainty associated with 
abundance and trend estimates, we concluded in our proposed rule that 
the Western North Pacific DPS was likely to become endangered 
throughout its range within the foreseeable future.
    However, the abundance estimate of 1,059 for this DPS is still 
relatively low and below the level that would signify that the 
population is not at risk due to low abundance alone. This DPS faces a 
significant number of moderate threats and one serious threat (fishing 
gear entanglement) that are expected to increase. The BRT members 
expressed a considerable degree of uncertainty with regard to both 
portions of this DPS in their allocation of likelihood points among 
different extinction risk categories. Further, we note that this DPS 
includes members of two different populations that the BRT considered 
to be two different DPSs, one of which has an unknown breeding area; 
thus, they are likely to have different demographic characteristics. As 
discussed above under the Status Review section, the BRT considered 
abundance and trend information carefully in evaluating extinction 
risk, but abundance was not the sole criterion for evaluating 
extinction risk. The thresholds described by the BRT were only general 
guidelines, and we must consider them in light of the threats the DPS 
faces.
    We have reconsidered our original listing determination for this 
DPS in light of the relatively low abundance estimate, the threats that 
continue to operate on the population, and the considerable uncertainty 
reflected in the distribution of BRT votes. Under these circumstances, 
for this particular DPS,

[[Page 62304]]

the risk to the species is compounded by the lack of information on the 
population abundance trend. We conclude that the Western North Pacific 
DPS is in danger of extinction throughout its range.

Conservation Efforts for the Western North Pacific DPS

    Currently, NMFS approach regulations exist in Alaska to protect 
humpback whales from vessels by prohibiting vessels from approaching 
within 100 yards of a humpback whale (50 CFR 224.103(b)). This 
regulation also requires vessels to maintain a slow, safe speed near 
humpback whales, and prohibits vessels from intercepting oncoming 
whales (a practice also known as ``leap-frogging''). In a separate 
direct final rule published elsewhere in today's issue of the Federal 
Register, this approach regulation is also being set forth in MMPA 
regulations (50 CFR part 216) because the Alaska regulation was adopted 
under authority of both the MMPA and the ESA but was inadvertently not 
codified under the MMPA regulations. It is also being added to 50 CFR 
223.214 to extend these ESA protections to threatened humpback whales 
in Alaskan waters (the Mexico DPS).
    In addition, Whale SENSE, a voluntary program promoting responsible 
viewing to minimize disturbance and protect whales from harassment, 
currently exists in Alaska.
    IWC and CITES conservation efforts apply to this DPS (please see 
Conservation Efforts for the Cape Verde Islands/Northwest Africa DPS).

Listing Determination for the Western North Pacific DPS

    While these conservation efforts are likely to benefit this DPS, 
they are not sufficient to reduce its extinction risk. For the above 
reasons, we list the Western North Pacific DPS of the humpback whale as 
an endangered species under the ESA.
Hawaii DPS
    The comments that we received on the Hawaii DPS and additional 
information that became available since the publication of the proposed 
rule or that was not cited in the status review report (Darling and 
Morowitz 1986) did not change our conclusion that this DPS does not 
warrant listing. Therefore, we incorporate herein all information on 
the Hawaii DPS provided in the status review report and proposed rule 
(80 FR 22304; April 21, 2015). The following represents a brief summary 
of that information.
    The Hawaii DPS consists of humpback whales that breed in Hawaii and 
feed in the east Bering Sea, Gulf of Alaska, and northern British 
Columbia.

Abundance and Trends for the Hawaii DPS

    Calambokidis et al. (2008) estimated the size of the humpback whale 
populations frequenting the Hawaii breeding area at 10,000 individuals 
and, assuming that proportions from the Barlow et al. (2011) estimate 
of 21,808 individuals in breeding areas in the North Pacific are likely 
to be similar to those estimated by Calambokidis et al. (2008), the 
population size frequenting the Hawaii breeding area would have 
increased to about 12,000 individuals. The most recent growth rate for 
this DPS was estimated between 5.5 percent and 6.0 percent 
(Calambokidis et al. 2008).
    More recently, in advance of the June 2016 IWC Scientific Committee 
meeting in Slovenia, Wade et al. (2016) submitted a paper in which they 
used an integrated spatial multi-strata mark-recapture model to 
simultaneously estimate abundance for all winter and summer areas 
sampled during the SPLASH project in the North Pacific. We believe the 
multi-strata estimates are likely less subject to bias from capture 
heterogeneity, which has been shown to lead to substantial biases, and 
they use all the data (from both summer and winter), rather than 
estimating abundance from just part of the data. Given this, it seems 
reasonable to conclude that the multi-strata estimates calculated here 
are more accurate than the within-season Chapman-Peterson estimates. 
The multi-strata estimate for the Hawaii DPS is 11,398 (CV = 0.04), 
which is higher than the Calambokidis et al. (2008) estimate of 10,000 
and just a little less than the estimate based on Barlow et al. (2011).
    The abundance estimate for the Hawaii DPS is 11,398 individuals and 
its population trend estimate is 5.5-6 percent.

Section 4(a)(1) Factors for the Hawaii DPS

    Studies of characteristic wounds and scarring indicate that this 
DPS experiences a high rate of interaction with fishing gear (20-71 
percent), with the highest rates recorded in Southeast Alaska and 
Northern British Columbia (Neilson et al. 2009). However, these rates 
represent only survivors. Fatal entanglements of humpback whales in 
fishing gear have been reported in all areas, but, given the isolated 
nature of much of their range, observed fatalities are almost certainly 
under-reported and should be considered minimum estimates. Studies in 
another humpback whale feeding ground, which has similar levels of 
scarring, estimate that the actual annual mortality rate from 
entanglement may be as high as 3.7 percent (Angliss and Outlaw 2008). 
There is a high level of certainty with regard to this information. The 
threat is considered to be medium.
    Threats generally are considered likely to have no or minor impact 
on population size and/or the growth rate of the Hawaii DPS or are 
unknown, with the following exception: Fishing gear entanglements are 
considered likely to moderately reduce the population size or the 
growth rate of the Hawaii DPS.

Extinction Risk Analysis for the Hawaii DPS

    The BRT distributed 98 percent of its likelihood points for the 
Hawaii DPS to the ``not at risk of extinction'' category. Given the 
large population size (11,398, more than five times the population size 
that the BRT considered sufficient to demonstrate that a population was 
not at risk due to low abundance alone), population growth rate of 5.5-
6 percent, and high percentage of likelihood points allocated to the 
``not at risk of extinction'' category for the Hawaii DPS, we conclude 
that, despite the moderate threat of fishing gear entanglements, the 
Hawaii DPS is not in danger of extinction throughout its range and not 
likely to become so within the foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Hawaii DPS is presently in danger of extinction or likely to become so 
within the foreseeable future in a significant portion of its range, 
because we have determined that the DPS is neither endangered nor 
threatened based on a rangewide evaluation. The BRT noted that there 
are some regional differences in threats for the Hawaii DPS, but it was 
unable to identify any portion of the DPS that both faced particularly 
high threats and was so significant to the viability of the DPS as a 
whole that its loss would result in the remainder of the DPS being at 
high risk of extinction. We agree, and we conclude that no portion of 
the Hawaii DPS faces particularly high threats and is so significant to 
the viability of the DPS that, if lost, the remainder of the DPS would 
be in danger of extinction, or likely to become so within the 
foreseeable future. Therefore, we conclude that the Hawaii DPS is not 
in danger of extinction in a significant portion of its range and is 
not likely to become so within the foreseeable future.

[[Page 62305]]

Conservation Efforts for the Hawaii DPS

    While there are many ongoing conservation efforts that apply to the 
Hawaii DPS, including IWC and CITES conservation efforts (please see 
Conservation Efforts for the Cape Verde Islands/Northwest Africa DPS), 
we do not need to further evaluate them in the context of this decision 
because they would serve only to further reduce the likely impact of 
threats.

Listing Determination for the Hawaii DPS

    For the above reasons, we finalize our proposed determination that 
the Hawaii DPS of the humpback whale does not warrant listing as a 
threatened or an endangered species under the ESA.
Mexico DPS
    After reviewing the comments we received on the Mexico DPS, 
reconsidering the information in the proposed rule, and reviewing Wade 
et al. (2016), we have reached a different conclusion regarding the 
appropriate listing status for this DPS. Specifically, though we did 
not propose to list the DPS as a ``threatened species'' or an 
``endangered species,'' we will finalize the listing status as a 
``threatened species.'' We incorporate herein all information on the 
Mexico DPS provided in the status review report and proposed rule (80 
FR 22303; April 21, 2015). The following represents a brief summary of 
that information.
    The Mexico DPS consists of whales that breed along the Pacific 
coast of mainland Mexico, and the Revillagigedos Islands and transit 
through the Baja California Peninsula coast. The Mexico DPS feeds 
across a broad geographic range from California to the Aleutian 
Islands, with concentrations in California-Oregon, northern Washington-
southern British Columbia, northern and western Gulf of Alaska and 
Bering Sea feeding grounds.

Abundance and Trends for the Mexico DPS

    The preliminary estimate of abundance of the Mexico DPS that 
informed our proposed rule was 6,000-7,000 from the SPLASH project 
(Calambokidis et al. 2008), or higher (Barlow et al. 2011). There were 
no estimates of precision associated with that estimate, so there was 
considerable uncertainty about the actual population size. However, the 
BRT was confident that the population was likely to be much greater 
than 2,000 in total size (above the BRT threshold for a population to 
be not at risk due to low abundance). Estimates of population growth 
trends do not exist for the Mexico DPS by itself. Given evidence of 
population growth throughout most of the primary feeding areas of the 
Mexico DPS (California/Oregon (Calambokidis et al. 2008), Gulf of 
Alaska from the Shumagins to Kodiak (Zerbini et al. 2006a)), it was 
considered unlikely this DPS was declining, but the BRT noted that a 
reliable, quantitative estimate of the population growth rate for this 
DPS was not available.
    More recently, in advance of the June 2016 IWC Scientific Committee 
meeting in Slovenia, Wade et al. (2016) submitted a paper in which they 
used an integrated spatial multi-strata mark-recapture model to 
simultaneously estimate abundance for all winter and summer areas 
sampled during the SPLASH project in the North Pacific. We believe the 
multi-strata estimates are likely less subject to bias from capture 
heterogeneity, which has been shown to lead to substantial biases, and 
they use all the data (from both summer and winter), rather than 
estimating abundance from just part of the data. Given this, it seems 
reasonable to conclude that the multi-strata estimates calculated here 
are more accurate than the within-season Chapman-Peterson estimates. 
The multi-strata estimate for the Mexico DPS is 3,264 (CV = 0.06). This 
is a significantly lower abundance estimate than the Calambokidis et 
al. (2008) estimate, and with a coefficient of variation of 0.06, it is 
more reliable.
    The abundance estimate for the Mexico DPS is 3,264 individuals, and 
the population trend is unknown.

Section 4(a)(1) Factors for the Mexico DPS

    Of the 17 records of stranded whales in Washington, Oregon, and 
California in the NMFS stranding database, three involved fishery 
interactions, two were attributed to vessel strikes, and in five cases 
the cause of death could not be determined (Carretta et al. 2010). 
Specifically, between 2004 and 2008, 14 humpback whales were reported 
seriously injured in commercial fisheries offshore of California and 
two were reported dead. The proportion of these that represent the 
Mexican breeding population is unknown. Fishing gear involved included 
gillnet, pot, and trap gear (Carretta et al. 2010). Between 2004 and 
2008, there were two humpback whale mortalities resulting from ship 
strikes reported and eight ship strike attributed injuries for 
unidentified whales in the California-Oregon-Washington stock as 
defined by NMFS, and some of these may have been humpback whales 
(Carretta et al. 2010). The Mexico DPS is known to also use Alaska and 
British Columbia waters for feeding (Calambokidis et al. 2008). 
Numerous collisions have been reported from Alaska and British Columbia 
(where shipping traffic has increased 200 percent in 20 years) (Neilson 
et al. 2012). According to a summary of Alaska ship strike records, an 
average of 5 strikes a year was reported from 1978-2011 (Neilson et al. 
2012). However, effects in Alaska will likely be mitigated by the 
vessel approach regulations discussed above (66 FR 29502; May 31, 2001) 
and by NMFS outreach to the cruise ship industry to share information 
about whale siting locations.
    Since the publication of the proposed rule, we have updated 
information on the number of entanglements off the coasts of 
California, Oregon, and Washington in 2015: 31 confirmed humpback 
whales of 48 confirmed whale entanglements (NMFS 2015). This represents 
a higher rate of fishing gear entanglements than was considered by the 
BRT and presented in the proposed rule, but the reasons for the 
observed increase is not clear. These new reports did not influence our 
conclusions on the status of the Mexico DPS. That is, our final listing 
determination takes into account that fishing gear entanglement poses 
at least a moderate risk to this DPS but does not attempt to speculate 
as to whether or why entanglement may be increasing, as the data are 
inconclusive (please see our response to Comment 21).
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate of this DPS or are unknown, with 
the following exception: Fishing gear entanglements are still 
considered likely to moderately reduce the population size or the 
growth rate of the Mexico DPS.

Extinction Risk Analysis for the Mexico DPS

    The BRT distributed 92 percent of its likelihood points for the 
Mexico DPS to the ``not at risk of extinction'' category. At the time 
we made our proposed determinations, given the large population size of 
6,000-7,000, qualitatively described trend (which, based on data about 
growth in the feeding areas off the west coast of the United States 
could be interpreted to be moderately increasing), and high percentage 
of likelihood points allocated to the ``not at risk of extinction'' 
category for the Mexico DPS, we concluded that, despite the moderate 
threat of fishing gear entanglements, the Mexico DPS was not in danger 
of extinction throughout its range or likely to become so within the 
foreseeable future.

[[Page 62306]]

    The updated abundance estimate of 3,264 (Wade et al. 2016), while 
still higher than 2,000 (the BRT's threshold between ``not likely to be 
at risk of extinction due to low abundance alone'' and ``increasing 
risk from factors associated with low abundance''), is significantly 
lower than the previous estimate of 6,000-7,000, though these estimates 
were derived from the same data. The BRT considered that this DPS was 
unlikely to be declining because of the population growth throughout 
most of its feeding areas, in California/Oregon and the Gulf of Alaska, 
but we do not have specific evidence that this DPS is actually 
increasing in overall population size.
    We have reconsidered our original listing determination for this 
DPS in light of the revised abundance estimate that is significantly 
lower than we previously thought (that is only about 50 percent greater 
than the size that the BRT considered sufficient to demonstrate that a 
population was not at risk due to low abundance alone) and the presence 
of a known threat of moderate intensity. In these circumstances, for 
this particular DPS, the risk to the species is compounded by the 
absence of firm data to establish the population abundance trend. As 
discussed above under the Status Review section, the BRT considered 
abundance and trend information carefully in evaluating extinction 
risk, but abundance was not the sole criterion for evaluating 
extinction risk. The thresholds described by the BRT were only general 
guidelines, and we must consider them in light of the considerations we 
just outlined. Fishing gear entanglement is likely to moderately reduce 
the population size or growth rate of this DPS. In this case, we do not 
agree with the BRT's conclusions on the extinction risk for the Mexico 
DPS. We conclude that the Mexico DPS is likely to become endangered 
throughout its range within the foreseeable future, i.e., that it is a 
threatened species.

Conservation Efforts for the Mexico DPS

    Mexican Standard 131 establishes guidelines and specifications for 
whale watching, including avoidance distances and speeds, limits on the 
number of boats, and protection from noise (echo sounders are 
prohibited). Mexico has also established protected natural areas that 
contribute to the conservation and sustainable management of humpback 
whales. These include Natural Heritage whale sanctuaries (Biosphere 
Reserve ``El Vizca[iacute]no'' and National Marine Park ``Cabo Pulmo'' 
in Baja California Sur) and other protected areas (National Park 
``Bah[iacute]a de Loreto,'' Archipelago ``Islas Mar[iacute]as,'' 
National Park ``Isla Isabel,'' and National Park ``Islas Marietas'' in 
Nayarit).
    The Greater Farallones National Marine Sanctuary has whale approach 
guidelines that provide some protection to individuals from the Mexico 
DPS while they are in their feeding areas.
    In addition, Whale SENSE, a voluntary program promoting responsible 
viewing to minimize disturbance and protect whales from harassment is 
expected to be adopted in California in the near future.
    In Canada, the ``North Pacific'' population of humpback whales 
(i.e., the whales that feed along the entire length of the west coast 
of British Columbia from Washington to Alaska, including in inshore 
coastal inlets and offshore waters) is listed as threatened under the 
SARA (http://www.sararegistry.gc.ca/approach/act/default_e.cfm), so it 
is illegal to kill, harass, capture or harm members of this population 
in any way. Because some individuals from the Mexico DPS feed in 
southern British Columbia, the SARA listing should provide some 
benefits to individuals while feeding there. Critical habitat has been 
identified under Canadian law to the extent possible off Langara 
Island, southeast Moresby Island, Gil Island and southwest Vancouver 
Island. These areas support feeding and foraging, and resting and 
socializing, and they are protected from destruction. A recovery 
strategy under SARA was published in 2013 (Fisheries and Oceans Canada 
2013). The two goals of this recovery strategy are: In the short term, 
to maintain, at a minimum, the current abundance of humpback whales in 
British Columbia (using best estimate of 2,145 animals (95 percent CI = 
1,970-2,331 as presented in Ford et al. 2009)); and, in the longer-
term, to observe continued growth of the population and expansion into 
suitable habitats throughout British Columbia. To meet these goals, 
threat and population monitoring, research, management, protection and 
enforcement, stewardship, outreach and education activities were 
recommended. Based on the need to assess population-level effects of 
threats and develop appropriate mitigation measures, activities to 
monitor and assess threats were given higher priority. An action plan 
to implement the Canadian recovery strategy is expected to be completed 
within five years of final posting of the recovery strategy on the SAR 
Public Registry.
    IWC and CITES conservation efforts apply to this DPS (please see 
Conservation Efforts for the Cape Verde Islands/Northwest Africa DPS).

Listing Determination for the Mexico DPS

    While these conservation efforts are likely to benefit this DPS, 
they are not sufficient to change its extinction risk. For the above 
reasons, we list the Mexico DPS of the humpback whale as a threatened 
species under the ESA.
Central America DPS
    After reviewing the comments we received on the Central America DPS 
and reconsidering the information in the proposed rule, we have reached 
a different conclusion regarding the appropriate listing status for 
this DPS. Specifically, though we proposed to list the DPS as a 
``threatened species,'' we will finalize the listing as an ``endangered 
species.'' We incorporate herein all information on the Central America 
DPS provided in the status review report and proposed rule (80 FR 
22303; April 21, 2015). The following represents a brief summary of 
that information.
    The Central America DPS is composed of whales that breed along the 
Pacific coast of Costa Rica, Panama, Guatemala, El Salvador, Honduras 
and Nicaragua. Whales from this breeding ground feed almost exclusively 
offshore of California and Oregon in the eastern Pacific, with only a 
few individuals identified at the northern Washington-southern British 
Columbia feeding grounds.

Abundance and Trends for the Central America DPS

    A preliminary estimate of abundance of the Central America 
population was ~500 from the SPLASH project (Calambokidis et al. 2008), 
or ~600 based on the reanalysis by Barlow et al. (2011). There were no 
estimates of precision associated with these estimates, so there was 
considerable uncertainty about the actual population size. Therefore, 
the actual population size could have been somewhat larger or smaller 
than 500-600, but the BRT considered it very unlikely to be as large as 
2,000 or more. The size of this DPS was relatively low compared to most 
other North Pacific breeding populations (Calambokidis et al. 2008) and 
within the range of population sizes considered by the BRT to be at 
risk based on low abundance. The trend of the Central America DPS was 
considered unknown.
    More recently, in advance of the June 2016 IWC Scientific Committee 
meeting in Slovenia, Wade et al. (2016) submitted a paper in which they 
used

[[Page 62307]]

an integrated spatial multi-strata mark-recapture model to 
simultaneously estimate abundance for all winter and summer areas 
sampled during the SPLASH project in the North Pacific. We believe the 
multi-strata estimates are likely less subject to bias from capture 
heterogeneity, which has been shown to lead to substantial biases, and 
they use all the data (from both summer and winter), rather than 
estimating abundance from just part of the data. Given this, it seems 
reasonable to conclude that the multi-strata estimates calculated here 
are more accurate than the within-season Chapman-Peterson estimates. 
The multi-strata estimate for the Central America DPS is 411 (CV = 
0.30), which is lower than the Calambokidis et al. (2008) preliminary 
estimate of 500 and the estimate of 600 based on Barlow et al. (2011).
    The abundance estimate of the Central America DPS is 411 
individuals, with unknown population trend.

Section 4(a)(1) Factors for the Central America DPS

    Vessel collisions and entanglement in fishing gear pose the 
greatest threat to this DPS. Especially high levels of large vessel 
traffic are found in this DPS' range off Panama, southern California, 
and San Francisco. Several records exist of ships striking humpback 
whales (Carretta et al. 2008; Douglas et al. 2008), and it is likely 
that not all incidents are reported. Two deaths of humpback whales were 
attributed to ship strikes along the U.S. west coast in 2004-2008 
(Carretta et al. 2010). Ship strikes are probably underreported 
(Bettridge et al. 2015 at 88), and the level of associated mortality is 
also likely higher than the observed mortalities. Vessel collisions 
were determined to pose a medium risk to this DPS, especially given the 
small population size. Shipping traffic will probably increase as 
global commerce increases; thus, a reasonable assumption is that the 
level of ship strikes will also increase.
    Between 2004 and 2008, 18 humpback whale entanglements in 
commercial fishing gear off California, Oregon, and Washington were 
reported (Carretta et al. 2010), although the actual number of 
entanglements may be underreported. Effective fisheries monitoring and 
stranding programs exist in California, but are lacking in Central 
America and much of Mexico. Levels of mortality from entanglement are 
unknown and do vary by region, but entanglement scarring rates indicate 
a significant interaction with fishing gear. Since the proposed rule 
published, we have received updated information on the number of 
entanglements off California, Oregon, and Washington in 2015: 31 
confirmed humpback whales of 48 confirmed whale entanglements (NMFS 
2015). This represents a higher rate of fishing gear entanglements than 
was considered by the BRT and presented in the proposed rule, but the 
reasons for the observed increase is not clear. These new reports did 
not influence our conclusions on the status of the Central America DPS. 
That is, our final listing determination does not rely on entanglements 
being at a higher rate than previously believed (please see our 
response to Comment 21).
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown, with the 
following exceptions: Vessel collisions and fishing gear entanglements 
are considered likely to moderately reduce the population size or the 
growth rate of the Central America DPS.

Extinction Risk Analysis for the Central America DPS

    The BRT distributed 28 percent of its likelihood points for the 
Central America DPS in the ``high risk of extinction'' category, 56 
percent in the ``moderate risk of extinction'' category, and 16 percent 
in the ``not at risk of extinction'' category, but the distribution of 
votes among the risk categories indicates uncertainty. Even though the 
BRT used 500 as a guideline between moderate and high risk of 
extinction (when considering abundance alone), the abundance estimates 
include a high level of uncertainty. As noted above, the population 
trend is unknown.
    While some may point out that this population feeds in Southern and 
central California, and those populations are increasing, Mexico DPS 
whales also feed in this area, and it is likely that Mexico DPS whales 
represent a higher proportion of the whales in this feeding area 
because they are more abundant (3,264 individuals in the Mexico DPS vs. 
411 individuals in the Central America DPS). Vessel strikes and fishing 
gear entanglement are still likely to moderately reduce population size 
or growth rate.
    The BRT concluded that this DPS was between ``moderate'' and ``high 
risk of extinction,'' with over a quarter of its likelihood points in 
the ``high risk of extinction'' category. Because the Central America 
DPS shares mtDNA haplotypes with some Southern Hemisphere DPSs, 
suggesting it may serve as a conduit for gene flow between the North 
Pacific and Southern Hemisphere, it is unique.
    We have reconsidered our original listing determination for this 
DPS in light of the original low abundance estimate (which was at the 
dividing line between BRT risk categories), the fact that the moderate 
threats of vessel collisions and fishing gear entanglement continue to 
act upon a population that is so small, and the considerable 
uncertainty reflected in the distribution of BRT votes. Under these 
circumstances, for this particular DPS, the risk is compounded by the 
lack of information on the population abundance trend. This conclusion 
was reached prior to receipt of the updated abundance estimate, but we 
note that the revised estimate of 411 is below the threshold of 500, 
under which the BRT considered a DPS to be at high risk of extinction 
due to abundance alone and thus reinforces our final determination. We 
conclude that the Central America DPS is in danger of extinction 
throughout its range.

Conservation Efforts for the Central America DPS

    The Greater Farallones National Marine Sanctuary has whale approach 
guidelines that provide some protection to individuals from the Central 
America DPS while they are in their feeding areas.
    In addition, Whale SENSE, a voluntary program promoting responsible 
viewing to minimize disturbance and protect whales from harassment is 
expected to be adopted in California in the near future.
    In Canada, the ``North Pacific'' population of humpback whales 
(i.e., the whales that feed along the entire length of the west coast 
of British Columbia from Washington to Alaska, including in inshore 
coastal inlets and offshore waters) is listed as threatened under the 
SARA (http://www.sararegistry.gc.ca/approach/act/default_e.cfm), so it 
is illegal to kill, harass, capture or harm members of this population 
in any way. Since some individuals from the Central America DPS feed in 
southern British Columbia, the SARA listing should provide some 
benefits to individuals while feeding there. Critical habitat has been 
identified under Canadian law to the extent possible off Langara 
Island, southeast Moresby Island, Gil Island and southwest Vancouver 
Island. These areas support feeding and foraging, and resting and 
socializing, and they are protected from destruction. A recovery 
strategy under SARA was published in 2013 (Fisheries and Oceans Canada 
2013). The two goals of this recovery strategy are: In the short term, 
to maintain at a minimum, the current

[[Page 62308]]

abundance of humpback whales in British Columbia (using best estimate 
of 2,145 animals (95 percent CI = 1,970-2,331 as presented in Ford et 
al. 2009)); and in the longer-term, to observe continued growth of the 
population and expansion into suitable habitats throughout British 
Columbia. To meet these goals, threat and population monitoring, 
research, management, protection and enforcement, stewardship, outreach 
and education activities were recommended. Based on the need to assess 
population-level effects of threats and develop appropriate mitigation 
measures, activities to monitor and assess threats were given higher 
priority. An action plan to implement the Canadian recovery strategy is 
expected to be completed within five years of final posting of the 
recovery strategy on the SAR Public Registry.
    IWC and CITES conservation efforts apply to this DPS (please see 
Conservation Efforts for the Cape Verde Islands/Northwest Africa DPS).

Listing Determination for the Central America DPS

    While these conservation efforts are likely to benefit this DPS, 
they are not sufficient to change its extinction risk. For the above 
reasons, we list the Central America DPS of the humpback whale as an 
endangered species under the ESA.
Brazil DPS
    The comments that we received on the Brazil DPS and additional 
information that became available since the publication of the proposed 
rule did not change our conclusion that this DPS does not warrant 
listing as a threatened species or an endangered species under the ESA. 
Therefore, we incorporate herein all information on the Brazil DPS 
provided in the status review report and proposed rule (80 FR 22304; 
April 21, 2015). The following represents a brief summary of that 
information.
    This DPS consists of whales that breed between 3[deg] S. and 
23[deg] S. in the southwestern Atlantic along the coast of Brazil, with 
a prominent concentration around the Abrolhos Bank (15[deg]-18[deg] 
S.), and feed off South Georgia and the South Sandwich Islands.

Abundance and Trends for the Brazil DPS

    The most recent abundance estimate for the Brazil DPS comes from 
aerial surveys conducted off the coast of Brazil in 2002-2005 (Andriolo 
et al. 2010). These surveys covered the continental shelf between 
6[deg] S. and 24[deg]30' S. and provided a best estimate of 6,400 
whales (95 percent CI = 5,000-8,000) in 2005. This estimate corresponds 
to nearly 24 percent of this DPS' pre-exploitation abundance (Zerbini 
et al. 2006d). Nearly 80 percent of the whales are found in the 
Abrolhos Bank, the eastern tip of the Brazilian continental shelf 
located between 16[deg] S. and 18[deg] S. (Andriolo et al. 2010). The 
best estimate of population growth rate is 7.4 percent per year (95 
percent CI = 0.5-14.7 percent) for the period 1995-1998 (Ward et al. 
2011).
    The abundance estimate for the Brazil DPS is estimated to be 6,400 
individuals, with a 7.4 percent per year population growth rate.

Section 4(a)(1) Factors for the Brazil DPS

    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate of the Brazil DPS or are 
unknown.

Extinction Risk Analysis for the Brazil DPS

    The BRT distributed 96 percent of their likelihood points to the 
``not at risk of extinction'' category for the Brazil DPS, thus 
indicating a high certainty in its voting. None of the factors that may 
negatively impact the status of the humpback whale appear to have 
impeded recovery, either alone or cumulatively, for this DPS. Given the 
large population size (6,400, more than three times the population size 
that the BRT considered sufficient to demonstrate that a population was 
not at risk due to low abundance alone) of this DPS, the fact that it 
is known to be increasing in population size, the high percentage of 
likelihood points allocated to the ``not at risk of extinction'' 
category, and the high certainty associated with these extinction risk 
estimates, we conclude that the Brazil DPS is not in danger of 
extinction throughout its range presently and not likely to become so 
within the foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Brazil DPS is in danger of extinction or likely to become so in the 
foreseeable future in a significant portion of its range, because we 
have determined that the DPS is neither endangered nor threatened based 
on a rangewide evaluation. The BRT was unable to identify a portion of 
the Brazil DPS that both faced particularly high threats and was so 
significant to the viability of the DPS as a whole that its loss would 
result in the remainder of the DPS being at high risk of extinction. We 
agree, and we also conclude that no portion of this DPS faces 
particularly high threats and is so significant to the viability of the 
remainder of the DPS that, if lost, it would be in danger of 
extinction, or likely to become so within the foreseeable future. 
Therefore, we conclude that the Brazil DPS is not threatened or 
endangered in a significant portion of its range.

Conservation Efforts for the Brazil DPS

    Other than protections provided to humpback whales by the IWC and 
CITES (please see Conservation Efforts for the Cape Verde Islands/
Northwest Africa DPS), we are not aware of any ongoing conservation 
efforts for this DPS. Regardless, we do not need to further evaluate 
conservation efforts in the context of this decision because they would 
serve only to further reduce the likely impact of threats.

Listing Determination for the Brazil DPS

    For the above reasons, we finalize our proposed determination that 
the Brazil DPS of the humpback whale does not warrant listing as a 
threatened species or an endangered species under the ESA.
Gabon/Southwest Africa DPS
    The comments that we received on the Gabon/Southwest Africa DPS and 
additional information that became available since the publication of 
the proposed rule did not change our conclusion that this DPS does not 
warrant listing as a threatened species or an endangered species. We 
incorporate herein all information on the Gabon/Southwest Africa DPS 
provided in the status review report and proposed rule (80 FR 22304; 
April 21, 2015). The following represents a brief summary of that 
information and some new information.
    The Gabon/Southwest Africa DPS consists of whales that breed and 
calve off central western Africa between ~6[deg] S. and ~6[deg] N. in 
the eastern Atlantic, including the coastal regions of northern Angola, 
Congo, Togo, Gabon, Benin, other coastal countries within the Gulf of 
Guinea and possibly further north. This DPS is thought to feed offshore 
of west South Africa and Namibia south of 18[deg] S. and in the 
Southern Ocean beneath west South Africa (20[deg] W. -10[deg] E.).

Abundance and Trends for the Gabon/Southwest Africa DPS

    We have reviewed two more recent papers that were not included in 
the status review report or considered in the proposed rule (Collins et 
al. 2010, with abundance estimates of 4,314 (CV = 0.19) for 2001-2004 
and 7,134 (CV = 0.23) for 2004-2006) and the IWC 2012

[[Page 62309]]

assessment of the Gabon stock for 2005 (9,484 (90 percent PI = 
7465,12,221), growth rate = 0.045 (90 percent PI = 0.006, 0.081)). We 
conclude that it is appropriate to use an abundance estimate of 7,134 
(CV = 0.23, 95 percent CI 4,576-11,124) for the Gabon/Northwest Africa 
DPS, as explained in our response to Comment 58. The trend is still 
unknown because we have determined that it is not appropriate to rely 
on the growth rate from the IWC (2012) assessment (see response to 
Comment 58).

Section 4(a)(1) Factors for the Gabon/Southwest Africa DPS

    For humpback whales using the waters of central western Africa, 
expanding offshore hydrocarbon extraction activity now poses an 
increasing threat (Findlay et al. 2006). The degree to which humpback 
whales are affected by offshore hydrocarbon extraction activity is not 
known, but it is believed that long-term exposure to low levels of 
pollutants and noise, as well as the drastic consequences of potential 
oil spills, could have conservation implications.
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown, with the 
exception of energy exploration posing a moderate threat to Gabon/
Southwest Africa DPS.

Extinction Risk Analysis for the Gabon/Southwest Africa DPS

    The BRT distributed 93 percent of their likelihood points to the 
``not at risk of extinction'' category for the Gabon/Southwest Africa 
DPS, thus indicating a high certainty in its voting. Despite the threat 
of offshore hydrocarbon activity off west Africa, the BRT distributed 
93 percent of its likelihood points in the ``not at risk of 
extinction'' category, and we agreed with the BRT's assessment. We are 
now relying on the more recent Collins et al. (2010) abundance estimate 
of 7,134 for this DPS. This estimate does not differ significantly from 
the average of the previous estimates of 6,560 (CV = 0.15) for 2001-
2004 and 8,064 (CV = 012) for 2001-2005 (Collins et al. 2008), which is 
7,312. This abundance estimate is more than three times the population 
size that the BRT considered sufficient to demonstrate that a 
population was not at risk due to low abundance alone), and therefore, 
we affirm our earlier conclusion that the DPS is not in danger of 
extinction throughout its range presently and not likely to become so 
within the foreseeable future.
    Therefore, we conclude that the Gabon/Southwest Africa DPS is not 
in danger of extinction throughout its range presently or within the 
foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Gabon/Southwest Africa DPS is in danger of extinction or likely to 
become so within the foreseeable future in a significant portion of its 
range, because we have determined that the DPS is neither endangered 
nor threatened based on a rangewide evaluation. The BRT concluded that 
there was some evidence for population substructure within the Gabon/
Southwest Africa DPS, based on an extensive breeding range with some 
significant genetic differentiation among breeding locations (Rosenbam 
et al. 2009). However, the BRT was unable to identify any portion of 
the DPS that both faced particularly high threats and was so 
significant to the viability of the DPS as a whole that its loss would 
result in the remainder of the DPS being at high risk of extinction. We 
agree, and we also conclude that no portions of this DPS face 
particularly high threats and are so significant to the viability of 
the DPS that, if lost, the DPS would be in danger of extinction, or 
likely to become so within the foreseeable future. Therefore we 
conclude that the Gabon/Southwest Africa DPS is not threatened or 
endangered in a significant portion of its range.

Conservation Efforts for the Gabon/Southwest Africa DPS

    Other than whale-watching regulations in South Africa that help 
protect humpback whales from the Gabon/Southwest Africa DPS and 
protections provided to humpback whales by the IWC and CITES (please 
see Conservation Efforts for the Cape Verde Islands/Northwest Africa 
DPS), we are not aware of any ongoing conservation efforts specific to 
this DPS. Regardless, we do not need to further evaluate conservation 
efforts in the context of this decision because they would serve only 
to further reduce the likely impact of threats.

Listing Determination for the Gabon/Southwest Africa DPS

    For the above reasons, we finalize our proposed determination that 
the Gabon/Southwest Africa DPS of the humpback whale does not warrant 
listing as a threatened species or an endangered species under the ESA.
Southeast Africa/Madagascar DPS
    The comments that we received on the Southeast Africa/Madagascar 
DPS and additional information that became available since the 
publication of the proposed rule did not change our conclusion that 
this DPS does not warrant listing. Therefore, we incorporate herein all 
information on the Southeast Africa/Madagascar DPS provided in the 
status review report and proposed rule (80 FR 22303; April 21, 2015). 
The following represents a brief summary of that information.
    The Southeast Africa/Madagascar DPS includes whales breeding in at 
least three different areas in the western Indian Ocean: One associated 
with mainland coastal waters of southeastern Africa, extending from 
Mozambique to as far north as Tanzania and southern Kenya; a second 
found in the coastal waters of the northern Mozambique Channel Islands 
and the southern Seychelles; and the third found in the coastal waters 
of eastern Madagascar. The feeding grounds of this DPS in the Southern 
Ocean are not well defined but are believed to include multiple 
localities to the west and east of the region bounded by 5[deg] W. -
60[deg] E.

Abundance and Trends for the Southeast Africa/Madagascar DPS

    The most recent abundance estimates for the Madagascar population 
were from surveys of Antongil Bay, 2000-2006 (Cerchio et al. 2009). 
Estimates using data from 2004-2006 and involving ``closed'' models of 
photo-identification of individuals and genotype data were 7,406 (CV = 
0.37, CI = 2,106-12,706) and 6,951 (CV = 0.33, CI = 2,509-11,394), 
respectively. Additional estimates were made using various data sets 
(e.g., photo-identification and genotype) and models, estimating 4,936 
(CV = 0.44, CI = 2,137-11,692) and 8,169 individuals (CV = 0.44, CI = 
3,476-19,497, Cerchio et al. 2009). The mark-recapture data were 
derived from surveys over several years and thus may represent the 
abundance of whales breeding off Madagascar, in addition to possibly 
whales breeding in Mayotte and the Comoros (Ersts et al. 2006), and to 
a smaller degree from the East African Mainland (Razafindrakoto et al. 
2008).
    Two trends in relative abundance have been calculated from land-
based observations of the migratory stream passing Cape Vidal, east 
South Africa in July 1998-2002, and July 1990-2000. The first was an 
estimate of 12.3 percent per year (Findlay and Best 2006) (however, 
this estimate is likely outside biological plausibility for this 
species (Bannister and Hedley 2001; Noad et al. 2008; Zerbini et al. 
2010)); and the second is 9.0 percent (an estimate that is within the 
range calculated for other Southern Hemisphere breeding grounds (e.g., 
Ward et al. 2006; Noad et al. 2008; Hedley et al. 2009)). Both rates 
are

[[Page 62310]]

considered with caution because the surveys were short in duration. It 
is not certain that these estimates represent the growth rate of the 
entire DPS. Given this uncertainty, and the uncertainty from the short 
duration of the surveys, we conclude it is likely the DPS is 
increasing, but it is not possible to provide a quantitative estimate 
of the rate of increase for the entire DPS.
    The Southeast Africa/Madagascar DPS is thought to be between 4,936 
and 8,169 individuals in population size, and its trend is thought to 
either be increasing or stable.

Section 4(a)(1) Factors for the Southeast Africa/Madagascar DPS

    Information regarding fisheries and other activities is limited. 
Kiszka et al. (2009) and Razafindrakoto et al. (2008) provided 
summaries of humpback whale entanglement and strandings based on 
interviews with artisanal fishing communities. Substantial gillnet 
fisheries have been reported in the near-shore waters off the coasts of 
mainland Africa and Madagascar, and to a lesser extent in the Comoros 
Archipelago, Mayotte, and Mascarene Islands, where such practices are 
hindered by coral reefs and a steep continental slope bathymetry 
(Kiszka et al. 2009). Stranding reports and observations from Tanzania 
and Mozambique have mostly implicated gillnets, with most Madagascan 
entanglements associated with long-line shark fishing (Razafindrakoto 
et al. 2008). In Mayotte, humpback whales have been observed with 
gillnet remains attached to them (Kiszka et al. 2009), although no 
fatalities have yet been documented. Industrial fishing operations, 
including longlines and drift longlines on fish aggregation devices, 
purse seine and midwater trawling, occur in waters off Mauritius. The 
extent of bycatch and entanglement in these waters is unknown (Kiszka 
et al. 2009). Strandings and bycatch data from 2001-2005 from South 
Africa indicated an estimated 15 humpback whales entangled in shark 
nets (large-mesh gillnets) in KwaZulu Natal province (only one death), 
while nine stranded whales were reported from the south and east coasts 
(IWC 2002b, 2003, 2004b, 2005b, 2006b).
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown, with the 
exception of fishing gear entanglements posing a moderate threat to the 
Southeast Africa/Madagascar DPS.

Extinction Risk Analysis for the Southeast Africa/Madagascar DPS

    The BRT distributed 96 percent of their likelihood points to the 
``not at risk of extinction'' category for the Southeast Africa/
Madagascar DPS, thus indicating a high degree of certainty in its 
voting. None of the factors that may negatively impact the status of 
the humpback whale appear to have impeded recovery, either alone or 
cumulatively, for this DPS. The population size (4,936-8,169) for this 
DPS is estimated to be more than twice and maybe four times the 
population size that the BRT considered sufficient to demonstrate that 
a population was not at risk due to low abundance alone and its 
population trend is likely to be stable or increasing. The high 
percentage of likelihood points allocated to the ``not at risk of 
extinction'' category and the high certainty associated with this 
extinction risk estimate further support a finding that this DPS is 
healthy and resilient, despite the moderate threat posed to this DPS by 
fishing gear entanglements. Therefore, we conclude that the Southeast 
Africa/Madagascar DPS is not in danger of extinction throughout its 
range presently and not likely to become so within the foreseeable 
future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Southeast Africa/Madagascar DPS is in danger of extinction or likely to 
become so within the foreseeable future in a significant portion of its 
range, because we have determined that the DPS is neither endangered 
nor threatened based on a rangewide evaluation. The BRT was unable to 
identify any portion of the Southeast Africa/Madagascar DPS that both 
faced particularly high threats and was so significant to the viability 
of the DPS as a whole that its loss would result in the remainder of 
the DPS being at high risk of extinction. We agree, and we also 
conclude that no portion of this DPS faces particularly high threats 
and is so significant to the viability of the DPS that, if lost, the 
remainder of the DPS would be in danger of extinction, or likely to 
become so within the foreseeable future. Therefore, we conclude that 
the Southeast Africa/Madagascar DPS is not threatened or endangered in 
a significant portion of its range.

Conservation Efforts for the Southeast Africa/Madagascar DPS

    Other than protections provided to humpback whales by the IWC and 
CITES (please see Conservation Efforts for the Cape Verde Islands/
Northwest Africa DPS), we are not aware of any ongoing conservation 
efforts for this DPS. Regardless, we do not need to further evaluate 
conservation efforts in the context of this decision because they would 
serve only to further reduce the likely impact of threats.

Listing Determination for the Southeast Africa/Madagascar DPS

    For the above reasons, we finalize our proposed determination that 
the Southeast Africa/Madagascar DPS of the humpback whale does not 
warrant listing as a threatened species or an endangered species under 
the ESA.
West Australia DPS
    The comments that we received on the West Australia DPS and 
additional information that became available since the publication of 
the proposed rule did not change our conclusion that this DPS does not 
warrant listing. Therefore, we incorporate herein all information on 
the West Australia DPS provided in the status review report and 
proposed rule (80 FR 22304; April 21, 2015). The following represents a 
brief summary of that information.
    The West Australia DPS consists of the whales whose breeding/
wintering range includes the West Australia coast, primarily in the 
Kimberly Region. Individuals in this population migrate to feeding 
areas in the Antarctic, primarily between 80[deg]E and 110[deg]E based 
on tagging data.

Abundance and Trends for the West Australia DPS

    Abundance of northbound humpback whales in the southeastern Indian 
Ocean in 2008 was estimated at 21,750 (95 percent CI = 17,550-43,000) 
based upon line transect survey data (Hedley et al. 2009). The current 
abundance appears likely close to the historical abundance for the DPS, 
although there is some uncertainty of the historical abundance because 
of difficulties in allocating catch to specific breeding populations 
(IWC 2007a). The current abundance is large relative to any of the 
general guidelines for viable abundance levels. The rate of population 
growth is estimated to be ~10 percent annually since 1982, which is at 
or near the estimated physiological limit of the species (Bannister 
1994; Bannister and Hedley 2001).
    The West Australia DPS abundance estimate is 21,750 individuals, 
with a 10 percent per year population growth rate.

Section 4(a)(1) Factors for the West Australia DPS

    The threat posed by energy development to the West Australia DPS 
was considered medium because of the substantial number of oil rigs and 
the

[[Page 62311]]

amount of energy exploration activity in the region inhabited by the 
whales (indicator CO-26 in (Beeton et al. 2006)). Additionally, there 
are proposals for many more oil platforms to be built in the near 
future, which are highly likely to be executed (Department of Industry 
and Resources 2008).
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown, with the 
exception of energy exploration posing a moderate threat to the West 
Australia DPS.

Extinction Risk Analysis for the West Australia DPS

    The BRT distributed 97 percent of their likelihood points to the 
``not at risk of extinction'' category for the West Australia DPS, thus 
indicating a high degree of certainty in its voting. None of the 
factors that may negatively impact the status of the humpback whale 
appear to have impeded recovery, either alone or cumulatively, for this 
DPS. Given the large population size (21,750) for this DPS (more than 
ten times the population size that the BRT considered sufficient to 
demonstrate that a population was not at risk due to low abundance 
alone), the fact that its trend is increasing at a rate of 10 percent 
per year, the high percentage of likelihood points allocated to the 
``not at risk of extinction'' category, and the high certainty 
associated with this extinction risk estimate, we conclude that the 
West Australia DPS is not in danger of extinction throughout its range 
presently and not likely to become so within the foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
West Australia DPS is in danger of extinction or likely to become so 
within the foreseeable future in a significant portion of its range, 
because we have determined that the DPS is neither endangered nor 
threatened based on a rangewide evaluation. The BRT was unable to 
identify a portion of the West Australia DPS that both faced 
particularly high threats and was so significant to the viability of 
the DPS as a whole that its loss would result in the remainder of the 
DPS being at high risk of extinction. We agree, and we also conclude 
that no portion of this DPS faces particularly high threats and is so 
significant to the viability of the DPS that, if lost, the remainder of 
the DPS would be in danger of extinction, or likely to become so within 
the foreseeable future. Therefore, we conclude that the West Australia 
DPS is not threatened or endangered in a significant portion of its 
range.

Conservation Efforts for the West Australia DPS

    While there are many ongoing conservation efforts that apply to the 
West Australia DPS, we do not need to further evaluate them in the 
context of this decision because they would serve only to further 
reduce the likely impact of threats.

Listing Determination for the West Australia DPS

    For the above reasons, we finalize our proposed determination that 
the West Australia DPS of the humpback whale does not warrant listing 
as a threatened species or an endangered species under the ESA.
East Australia DPS
    The comments that we received on the East Australia DPS and 
additional information that became available since the publication of 
the proposed rule did not change our conclusion that this DPS does not 
warrant listing. Therefore, we incorporate herein all information on 
the East Australia DPS provided in the status review report and 
proposed rule (80 FR 22304; April 21, 2015). The following represents a 
brief summary of that information.
    The East Australia DPS consists of the whales breeding/wintering 
along the eastern and northeastern Australian coast. Based upon 
tagging, telemetry, and re-sighting data, individuals in this 
population migrate to Antarctic feeding areas ranging from 100[deg] E. 
to 180[deg] E., but are concentrated mostly between 120[deg] E. and 
180[deg] E.

Abundance and Trends for the East Australia DPS

    Abundance of the East Australia DPS was estimated to be 6,300-7,800 
(95 percent CI = 4,040-10,739) in 2005 based on photo-ID data (Paton 
and Clapham 2006; Paton et al. 2008; Paton et al. 2009). The current 
abundance is large relative to any of the general guidelines for viable 
abundance levels. The annual rate of increase is estimated to be 10.9 
percent for humpback whales in the southwestern Pacific Ocean (Noad et 
al. 2008). This estimate of population increase is very close to the 
biologically plausible upper limit of reproduction for humpbacks 
(Zerbini et al. 2010). The surveys presented by Noad et al. (2005, 
2008) have remained consistent over time, with a strong correlation (r 
> 0.99) between counts and years.
    The East Australia DPS abundance estimate is between 6,300 and 
7,800, with a 10.9 percent per year population growth rate.

Section 4(a)(1) Factors for the East Australia DPS

    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown.

Extinction Risk Analysis for the East Australia DPS

    The BRT distributed 96 percent of their likelihood points to the 
``not at risk of extinction'' category for the East Australia DPS, thus 
indicating a high degree of certainty in its voting. None of the 
factors that may negatively impact the status of the humpback whale 
appear to have impeded recovery, either alone or cumulatively, for this 
DPS. Given the large population size (6,300-7,800, more than three 
times the population size that the BRT considered sufficient to 
demonstrate that a population was not at risk due to low abundance 
alone) for this DPS, the fact that its trend is increasing at a rate of 
10.9 percent per year, the high percentage of likelihood points 
allocated to the ``not at risk of extinction'' category, and the high 
certainty associated with this extinction risk estimate, we conclude 
that the East Australia DPS is not in danger of extinction throughout 
its range presently and not likely to become so within the foreseeable 
future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
East Australia DPS is in danger of extinction or likely to become so 
within the foreseeable future in a significant portion of its range, 
because we have determined that the DPS is neither endangered nor 
threatened based on a rangewide evaluation. The BRT was unable to 
identify a portion of the East Australia DPS that both faced 
particularly high threats and was so significant to the viability of 
the DPS as a whole that its loss would result in the remainder of the 
DPS being at high risk of extinction. We agree, and we also conclude 
that no portion of this DPS faces particularly high threats and is so 
significant to the viability of the DPS that, if lost, the remainder of 
the DPS would be in danger of extinction, or likely to become so within 
the foreseeable future. Therefore, we conclude that the East Australia 
DPS is not threatened or endangered in a significant portion of its 
range.

Conservation Efforts for the East Australia DPS

    While there are many ongoing conservation efforts that apply to the 
East Australia DPS, we do not need to further evaluate them in the 
context of

[[Page 62312]]

this decision because they would serve only to further reduce the 
likely impact of threats.

Listing Determination for the East Australia DPS

    For the above reasons, we finalize our proposed determination that 
the East Australia DPS of the humpback whale does not warrant listing 
as a threatened species or an endangered species under the ESA.
Oceania DPS
    The comments that we received on the Oceania DPS and additional 
information that became available since the publication of the proposed 
rule did not change our conclusion that this DPS does not warrant 
listing. Therefore, we incorporate herein all information on the 
Oceania DPS provided in the status review report and proposed rule (80 
FR 22304; April 21, 2015). The following represents a brief summary of 
that information.
    The Oceania DPS consists of whales that breed/winter in the South 
Pacific Islands between ~160[deg] E., (west of New Caledonia) to 
~120[deg] W. (east of French Polynesia), including American Samoa, the 
Cook Islands, Fiji, French Polynesia, Republic of Kiribati, Nauru, New 
Caledonia, Norfolk Island, New Zealand, Niue, the Independent State of 
Samoa, Solomon Islands, Tokelau, Kingdom of Tonga, Tuvalu, Vanuatu, and 
Wallis and Futuna. Individuals in this population are believed to 
migrate to a largely undescribed Antarctic feeding area.

Abundance and Trends for the Oceania DPS

    The Oceania humpback whale DPS is of moderate size (4,329 whales; 
95 percent CI = 3,345-5,313) (Constantine et al. 2012). The trend of 
the Oceania DPS was unknown at the time of publication of the proposed 
rule, though more recent information (Constantine et al. 2012) that was 
not included in the status review report (please see our response to 
Comment 61) or considered in the proposed rule indicates that the 
growth rate of this DPS is 3 percent per year or higher. The DPS is 
quite subdivided, and the population estimate applies to an aggregate 
(although it is known that sub-populations differ in growth rates and 
other demographic parameters). There are some areas of historical range 
extent that have not rebounded and other areas without historical 
whaling information (Fleming and Jackson 2011). There is uncertainty 
regarding which geographic portion of the Antarctic this DPS uses for 
feeding. The complex population structure of humpback whales within the 
Oceania region creates higher uncertainty regarding demographic 
parameters and threat levels than for any other DPS.
    The abundance estimate for the Oceania DPS is 4,329 individuals, 
with a population growth rate of 3 percent per year.

Section 4(a)(1) Factors for the Oceania DPS

    There is little information available from the South Pacific 
regarding entanglement with fishing gear; two humpback whales have been 
observed in Tonga entangled in rope in one instance and fishing net in 
another (Donoghue, pers. comm.). One humpback mother (and her calf) was 
reported entangled in a longline in the Cook Islands in 2007 (South 
Pacific Whale Research Consortium 2008). Entanglement scars have been 
seen on humpback whales in American Samoa, but there are not enough 
data to determine an entanglement rate. Available evidence suggests 
that entanglement is a potential concern in regions where whales and 
stationary or drifting gear in the water overlap (Mattila et al. 2010). 
The threat of entanglements was ranked low for the Oceania DPS.
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown. In the section 
4(a)(1) analysis section of the proposed rule (80 FR 22304; April 21, 
2015 at 22344), we stated that the BRT ranked the threat of 
entanglements as low for the Oceania DPS. However, in the Conclusions 
on the Status of Each DPS Under the ESA section of the proposed rule 
(80 FR 22304; April 21, 2015 at 22350), we incorrectly stated that 
fishing gear entanglements posed a moderate threat to the Oceania DPS. 
This latter apparently contradictory statement was in error and 
reflected a corresponding error in the Executive Summary of the BRT 
report.

Extinction Risk Analysis for the Oceania DPS

    The BRT distributed 68 percent of their likelihood points to the 
``not at risk of extinction'' category for the Oceania DPS, indicating 
a moderate degree of certainty, and 29 percent of its points to the 
``moderate risk of extinction'' category, indicating some support for a 
conclusion that the species is imperiled. None of the factors that may 
negatively impact the status of the humpback whale appear to have 
impeded recovery, either alone or cumulatively, for this DPS. Given the 
moderate population size (4,329) for this DPS (more than twice the 
population size that the BRT considered sufficient to demonstrate that 
a population was not at risk due to low abundance alone), the 3 percent 
annual growth rate, the majority of likelihood points allocated to the 
``not at risk of extinction'' category, and the moderate certainty 
associated with the extinction risk estimate for the Oceania DPS, we 
conclude that the Oceania DPS is not in danger of extinction throughout 
all of its range presently and not likely to become so within the 
foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Oceania DPS is in danger of extinction or likely to become so within 
the foreseeable future in a significant portion of its range, because 
we have determined that the DPS is neither endangered nor threatened 
based on a rangewide evaluation. The BRT noted that the Oceania DPS has 
potentially somewhat greater substructure than most other humpback 
whale DPSs due to its extended breeding range, though a lack of strong 
genetic structure indicates there are likely to be considerable 
demographic connections among these areas. Some threats, such as whale 
watching in the Southern Lagoon of New Caledonia, appear to be 
localized. Nonetheless, the BRT was unable to identify any specific 
areas where threats were sufficiently severe to be likely to cause 
local extirpation. We agree, and we also conclude that no portion of 
this DPS faces particularly high threats and is so significant to the 
viability of the DPS that, if lost, the remainder of the DPS would be 
in danger of extinction, or likely to become so within the foreseeable 
future. Therefore, we conclude that the Oceania DPS is not threatened 
or endangered in a significant portion of its range.

Conservation Efforts for the Oceania DPS

    Other than protections provided to humpback whales by the IWC and 
CITES (please see Conservation Efforts for the Cape Verde Islands/
Northwest Africa DPS), we are not aware of any ongoing conservation 
efforts for this DPS. Regardless, we do not need to further evaluate 
conservation efforts in the context of this decision because they would 
serve only to further reduce the likely impact of threats.

Listing Determination for the Oceania DPS

    For the above reasons, we finalize our proposed determination that 
the Oceania DPS of the humpback whale does not warrant listing as a 
threatened

[[Page 62313]]

species or an endangered species under the ESA.
Southeastern Pacific DPS
    The comments that we received on the Southeastern Pacific DPS and 
additional information that became available since the publication of 
the proposed rule did not change our conclusion that this DPS does not 
warrant listing. Therefore, we incorporate herein all information on 
the Southeastern Pacific DPS provided in the status review report and 
proposed rule (80 FR 22304; April 21, 2015). The following represents a 
brief summary of that information.
    The Southeastern Pacific DPS consists of whales that breed/winter 
along the Pacific coasts of Panama to northern Peru (9[deg] N.-6[deg] 
S.), with the main wintering areas concentrated in Colombia. Feeding 
grounds for this DPS are thought to be concentrated in the Chilean 
Magellan Straits and the western Antarctic Peninsula. These cross-
equatorial breeders feed in the Southern Ocean during much of the 
austral summer.

Abundance and Trends for the Southeastern Pacific DPS

    Individuals of the Southeastern Pacific population migrate from 
breeding grounds between Costa Rica and northern Peru to feeding 
grounds in the Magellan Straits and along the Western Antarctic 
Peninsula. Though no quantitative growth rate information is available 
for this DPS, abundance estimates over a 13-year period suggest that 
the DPS size is increasing, and abundance was estimated to be 6,504 (95 
percent CI = 4,270-9,907) individuals in 2005-2006 (F[eacute]lix et al. 
2006a; F[eacute]lix et al. 2011). Total abundance is likely to be 
larger because only a portion of the DPS was enumerated.
    The abundance estimate for the Southeastern Pacific DPS is 6,504 
individuals, with a population trend that is likely increasing.

Section 4(a)(1) Factors for the Southeastern Pacific DPS

    Aquaculture activities are high in waters of Argentina and Chile, 
but the impact of these activities on this DPS of humpback whales has 
not been documented and is likely low if few whales use these inland 
areas. Entanglement was determined to pose a medium threat to this DPS 
based on stranding and entanglement observations and spatial and 
temporal overlap with aquaculture activities.
    All threats are considered likely to have no or minor impact on 
population size and/or the growth rate or are unknown, with the 
exception of fishing gear entanglements posing a moderate threat to the 
Southeastern Pacific DPS.

Extinction Risk Analysis for the Southeastern Pacific DPS

    The BRT distributed 93 percent of their likelihood points to the 
``not at risk of extinction'' category for the Southeastern Pacific 
DPS, thus indicating a high certainty in its voting. None of the 
factors that may negatively impact the status of the humpback whale 
appear to have impeded recovery, either alone or cumulatively, for this 
DPS. Given the large population sizes (6,504) for this DPS (more than 
three times the population size that the BRT considered sufficient to 
demonstrate that a population was not at risk due to low abundance 
alone), the fact that it is thought to be increasing, the high 
percentage of likelihood points allocated to the ``not at risk of 
extinction'' category, and the high certainty associated with this 
extinction risk estimate, we conclude that the Southeastern Pacific DPS 
is not in danger of extinction throughout all of its range presently 
and not likely to become so within the foreseeable future.
    Next, per the Final SPOIR Policy, we need to determine whether the 
Southeastern Pacific DPS is in danger of extinction or likely to become 
so within the foreseeable future in a significant portion of its range, 
because we have determined that the DPS is neither endangered nor 
threatened based on a rangewide evaluation. The BRT was unable to 
identify a portion of the Southeastern Pacific DPS that both faced 
particularly high threats and was so significant to the viability of 
the DPS as a whole, that its loss would result in the remainder of the 
DPS being at high risk of extinction. We agree, and we also conclude 
that no portion of this DPS faces particularly high threats and is so 
significant to the viability of the DPS that, if lost, the remainder of 
the DPS would be in danger of extinction, or likely to become so within 
the foreseeable future. Therefore, we conclude that the Southeastern 
Pacific DPS is not threatened or endangered in a significant portion of 
its range.

Conservation Efforts for the Southeastern Pacific DPS

    While there are many ongoing conservation efforts that apply to the 
Southeastern Pacific DPS, we do not need to further evaluate them in 
the context of this decision because they would serve only to further 
reduce the likely impact of threats.

Listing Determination for the Southeastern Pacific DPS

    For the above reasons, we finalize our proposed determination that 
the Southeastern Pacific DPS of the humpback whale does not warrant 
listing as a threatened species or an endangered species under the ESA.
Arabian Sea DPS
    The comments that we received on the Arabian Sea DPS and additional 
information that became available since the publication of the proposed 
rule did not change our conclusions that this DPS warrants listing as 
an endangered species. Therefore, we incorporate herein all information 
on the Arabian Sea DPS provided in the status review report and 
proposed rule (80 FR 22304; April 21, 2015). The following represents a 
brief summary of that information.
    The Arabian Sea DPS includes those whales that are currently known 
to breed and feed along the coast of Oman. However, historical records 
from the eastern Arabian Sea along the coasts of Pakistan and India 
indicate its range may also include these areas.

Abundance and Trends for the Arabian Sea DPS

    Mark-recapture studies using tail fluke photographs collected in 
Oman from 2000-2004 yielded a population estimate of only 82 
individuals (95 percent CI = 60-111). However, sample sizes were small, 
and there are various sources of possible negative bias, including 
insufficient spatial and temporal coverage of the population's 
suspected range (Minton et al. 2010b).
    Reproductive rates in this DPS are not well understood. Cow-calf 
pairs were very rarely observed in surveys off the coast of Oman, 
composing only 7 percent of encounters in Dhofar, and not encountered 
at all since 2001. Soviet whaling catches off Oman, Pakistan and 
northwestern India also included low numbers of lactating females (3.5 
percent of mature females) relative to pregnant females (46 percent of 
mature females) (Mikhalev 1997).
    No trend data are available for this DPS. A low proportion of 
immature whales (12.4 percent of all females) was also found, even 
though catches were indiscriminate with respect to sex and condition 
(Mikhalev 1997), suggesting that calf mortality in this DPS is high, 
immature animals occupy areas that have not been surveyed, or that the 
whales have reproductive ``boom and bust'' cycles which respond to high 
annual variation in productivity. The BRT noted that the entire region 
has not

[[Page 62314]]

been surveyed; however, in areas where the whales are likely to be, not 
many whales have been observed. The BRT noted that this is a very small 
population by any standard but felt that there was some uncertainty in 
abundance estimates.
    The estimated abundance of the Arabian Sea DPS is 82 individuals, 
but its entire range was not surveyed, so it could be somewhat larger. 
Its population trend is unknown.

Section 4(a)(1) Factors for the Arabian Sea DPS

    The BRT determined that the threat posed by energy exploration to 
the Arabian Sea DPS should be classified as high, given the small 
population size and the present levels of energy activity. A 
catastrophic event similar to the Deepwater Horizon Oil Spill that 
occurred in the Gulf of Mexico, the potential for which is reasonably 
foreseeable in light of the scope of ongoing activity, could be 
devastating to this DPS, especially in light of the year-round presence 
of humpback whales in this area.
    Liver damage was detected in 68.5 percent of necropsied humpback 
whales in this area during Soviet whaling in 1966, with degeneration of 
peripheral liver sections, cone-shaped growths up to 20 cm in diameter 
and blocked bile ducts (Mikhalev 1997). While this pathology was 
consistent with infection by trematode parasites, none were identified 
during necropsy, and the causes of this liver damage remain unknown.
    Poisonous algal blooms and biotoxins have been implicated in some 
mass fish, turtle, and possibly cetacean, mortality events on the Oman 
coast, although no events have yet been known to include humpback 
whales. Coastal run-off from industrial activities is likely to be 
increasing rapidly, while regular oil spills in shipping lanes from 
tankers also contribute to pollution along the coast (e.g., Shriadah 
1999). Tattoo skin lesions were observed in 26 percent of photo-
identified whales from Oman (Baldwin et al. 2010). While not thought to 
be a common cause of adult mortality, it has been suggested that tattoo 
skin disease may differentially kill neonates and calves that have not 
yet gained immunity (Van Bressem et al. 2009). The authors also 
suggested that this disease may be more prevalent in marine mammal 
populations that experience chronic stress and/or are exposed to 
pollutants that suppress the immune system.
    Humpback whales in the Arabian Sea are exposed to a high level of 
vessel traffic (Baldwin 2000; Minton 2004; Kaluza et al. 2010), so the 
threat of ship strikes was considered medium for this small DPS.
    There is high fishing pressure in areas off Oman where humpback 
whales are sighted. Eight live humpback whale entanglement incidents 
were documented between 1990 and 2000, involving bottom set gillnets 
often with weights still attached and anchoring the whales to the ocean 
floor (Minton 2004). Minton et al. (2010b) examined peduncle 
photographs of humpback whales in the Arabian Sea and concluded that at 
least 33 percent had been entangled in fishing gear at some stage. The 
threat of fishing gear entanglements in the Arabian Sea is considered 
high and increasing.
    The threat posed by climate change to the Arabian Sea DPS of the 
humpback whale within the foreseeable future was determined to be 
slightly higher than to the other DPSs and was assigned a medium threat 
level. This higher threat level is based on the more limited movement 
of this DPS that both breeds and feeds in the Arabian Sea. In the 
foreseeable future, changing climatic conditions may change the 
monsoon-driven upwelling that creates seasonal productivity in the 
region. While Northern Hemisphere individuals may be able to adapt to 
climatic changes by moving farther north, Arabian Sea individuals have 
less flexibility for expanding their range to cooler regions.
    Evidence that this DPS has undergone a recent genetic bottleneck 
and is currently at low abundance (Minton et al. 2010b) suggests that 
there may be an additional risk of impacts from increased inbreeding 
(which may reduce genetic fitness and increase susceptibility to 
disease). At low densities, populations are more likely to suffer from 
the ``Allee'' effect, where inbreeding and the heightened difficulty of 
finding mates reduces the population growth rate in proportion to 
reducing density.
    The Arabian Sea DPS faces unique threats, given that the whales do 
not migrate, but instead feed and breed in the same, relatively 
constrained geographic location. Energy exploration and fishing gear 
entanglements are considered likely to seriously reduce the 
population's size and/or growth rate, and disease, vessel collisions, 
and climate change are likely to moderately reduce the population's 
size or growth rate.

Extinction Risk Analysis for the Arabian Sea DPS

    The BRT distributed 87 percent of its likelihood points for the 
Arabian Sea DPS in the ``at high risk of extinction'' category. We 
agree with the BRT and conclude that the Arabian Sea DPS is presently 
in danger of extinction.

Conservation Efforts for the Arabian Sea DPS

    Other than protections provided to humpback whales by the IWC and 
CITES (please see Conservation Efforts for the Cape Verde Islands/
Northwest Africa DPS), we are not aware of any ongoing conservation 
efforts for this DPS.

Listing Determination for the Arabian Sea DPS

    While the IWC and CITES conservation efforts are likely to benefit 
all humpback whales, they are not sufficient to change the extinction 
risk of this DPS. For the above reasons, we finalize our proposal to 
list the Arabian Sea DPS of the humpback whale as an endangered species 
under the ESA.
Final Determinations
    We reviewed the best available scientific and commercial 
information, including the information in the peer reviewed status 
review report, public comments, and information that has become 
available since the publication of the proposed rule. We identified 14 
humpback whale DPSs: West Indies, Cape Verde Islands/Northwest Africa, 
Western North Pacific, Hawaii, Mexico, Central America, Brazil, Gabon/
Southwest Africa, Southeast Africa/Madagascar, West Australia, East 
Australia, Oceania, Southeastern Pacific, and Arabian Sea. For each 
DPS, we reviewed the abundance and trends and section 4(a)(1) factors, 
performed an extinction risk analysis, and considered conservation 
efforts. We determined that the Cape Verde Islands/Northwest Africa, 
Western North Pacific, Central America, and Arabian Sea DPSs are 
endangered species, and the Mexico DPS is a threatened species. 
Pursuant to the second sentence of section 4(d) of the ESA, we extend 
the prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA 
(16 U.S.C. 1538) relating to endangered species to threatened humpback 
whales (which under this rule consists of the Mexico DPS).
    The following nine DPSs do not warrant listing under the ESA: West 
Indies, Hawaii, Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, West Australia, East Australia, Oceania, and Southeastern 
Pacific. We hereby replace the original endangered listing for the 
entire species with listings of the four endangered DPSs and one 
threatened DPS.

[[Page 62315]]

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

[[Page 62316]]

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

[[Page 62317]]

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

[[Page 62318]]

    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that NMFS ``Identify physical and biological 
features essential to the conservation of the species at an appropriate 
level of specificity using the best available scientific data. This 
analysis will vary between species and may include consideration of the 
appropriate quality, quantity, and spatial and temporal arrangements of 
such features in the context of the life history, status, and 
conservation needs of the species.'' ``Physical or biological 
features'' are defined as the ``features that support the life-history 
needs of the species, including but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity'' (50 CFR 
424.02).
    The ESA directs the Secretary of Commerce to consider the economic 
impact, the national security impacts, and any other relevant impacts 
from designating critical habitat, and under section 4(b)(2), the 
Secretary may exclude any area from such designation if the benefits of 
exclusion outweigh those of inclusion, provided that the exclusion will 
not result in the extinction of the species.
    50 CFR 424.12(g) specifies that critical habitat shall not be 
designated within foreign countries or in other areas outside U.S. 
jurisdiction. Because the known distributions of the humpback whales in 
the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs occur in 
areas outside the jurisdiction of the United States, no critical 
habitat will be designated for these DPSs.
    In our proposed rule (80 FR 22304; April 21, 2015), we requested 
information on the identification of specific areas that meet the 
definition of critical habitat defined above for the Western North 
Pacific and Central America DPSs of the humpback whale. These DPSs, 
together with the Mexico DPS that we are now listing as threatened, are 
the only listed DPSs that occur in U.S. waters or its territories. We 
also solicited biological and economic information relevant to making a 
critical habitat designation for each DPS. We have reviewed the 
comments provided and the best available scientific information. We 
conclude that critical habitat is not determinable at this time for the 
following reasons: (i) Data sufficient to perform required analyses are 
lacking; and (ii) the biological needs of the species are not 
sufficiently well known to identify any area that meets the definition 
of ``critical habitat'' (50 CFR 424.12(a)(2)). We will propose critical 
habitat for the Western North Pacific, Mexico, and Central America DPSs 
of the humpback whale in a separate rulemaking if we determine that it 
is prudent to do so. (See 50 CFR 424.12(a)(1).)
Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6 (1999), Sec.  6.03.e.1; 
NAO 216-6A (2016), Sec.  6.01.) Further, we conclude that extension of 
the section 9(a)(1) protections in a blanket or categorical fashion is 
a form of ministerial action taken under the authority of the second 
sentence of ESA section 4(d). Courts have found that it is reasonable 
to interpret the second sentence of section 4(d) as setting out 
distinct authority from that of the first sentence, which is invoked 
when the agency proposes tailored or special protections that go beyond 
the standard section 9 protections. See In re Polar Bear Endangered 
Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 
(D.D.C. 2011); Sweet Home Chapter of Cmties. for a Great Oregon v. 
Babbitt, 1 F.3d 1, 8 (D.C. Cir.1993), modified on other grounds on 
reh'g, 17 F.3d 1463 (D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 
687 (1995). This type of action is covered under the NOAA categorical 
exclusion for ``policy directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature . . . 
.'' See NAO 216-6, Sec.  6.03c.3(i). None of the exceptional 
circumstances of Sec.  5.05c of NAO 216-6 applies. That is, the action 
does not involve a geographic area with unique characteristics, is not 
the subject of public controversy based on potential environmental 
consequences, does not have uncertain environmental impacts or unique 
or unknown risks, does not establish a precedent or decision in 
principle about future proposals, will not result in cumulatively 
significant impacts, and will not have any adverse effects upon 
endangered or threatened species or their habitats. In particular, the 
rule may not reasonably be said to potentially have ``any adverse 
effects upon endangered or threatened species or their habitats'' 
because here the rule will ensure the same level of protections 
continue to apply to any threatened DPS, which benefits the species. In 
addition, we note that there will be no change in the legal or 
regulatory status quo as it relates to the threatened DPS of humpback 
whales, because these whales have for decades been covered by all 
protections of section 9 as endangered species. Issuance of this rule 
thus does not alter the legal and regulatory status quo in such a way 
as to create any environmental effects. See Humane Soc. of U.S. v. 
Johanns, 520 F. Supp. 2d. 8, 29 (D.D.C. 2007). NEPA analysis is not 
required in cases where the rule will not result in any physical 
effects to the environment, much less any adverse effects. See Oceana, 
Inc. v. Bryson, 940 F. Supp. 2d 1029 (N.D. Cal. 2013).

Executive Order (E.O.) 12866, Paperwork Reduction Act, and Regulatory 
Flexibility Act

    This rule is exempt from review under E.O. 12866. This final rule 
does not contain a collection of information requirement for the 
purposes of the Paperwork Reduction Act.
    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analyses required by the Regulatory 
Flexibility Act are not applicable to the listing process.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this final rule; therefore this 
action does not have federalism implications as that term is defined in 
E.O. 13132.

E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by

[[Page 62319]]

treaties, statutes, executive orders, judicial decisions, and co-
management agreements, which differentiate tribal governments from the 
other entities that deal with, or are affected by, the Federal 
government. This relationship has given rise to a special Federal trust 
responsibility involving the legal responsibilities and obligations of 
the United States toward Indian Tribes and the application of fiduciary 
standards of due care with respect to Indian lands, tribal trust 
resources, and the exercise of tribal rights. E.O. 13175--Consultation 
and Coordination with Indian Tribal Governments--outlines the 
responsibilities of the Federal Government in matters affecting tribal 
interests. Section 161 of Public Law 108-199 (188 Stat. 452), as 
amended by section 518 of Public Law 108-447 (118 Stat. 3267), directs 
all Federal agencies to consult with Alaska Native tribes or 
organizations on the same basis as Indian tribes under E.O. 13175.
    We have coordinated with tribal governments and native corporations 
that may be affected by the action. We provided them with a copy of the 
proposed rule, and offered the opportunity to comment on the Monitoring 
Plan. We did not receive any comments.
References Cited
    A list of all references cited in this final rule is available at 
www.regulations.gov (identified by docket number NOAA-NMFS-2015-0035) 
or upon request from NMFS (see ADDRESSES).

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Endangered and threatened species.

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

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

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

0
2. In Sec.  223.102, in the table in paragraph (e), add an entry for 
``Whale, humpback (Mexico DPS)'' under MARINE MAMMALS in alphabetical 
order by common name to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Species \1\
--------------------------------------------------------------------------------------    Citation(s) for
                                                              Description of listed           listing           Critical  habitat         ESA rules
            Common name                Scientific name               entity               determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Whale, humpback (Mexico DPS)......  Megaptera              Humpback whales that breed  81 FR [Insert Federal  NA..................  223.213
                                     novaeangliae.          or winter in the area of    Register page where
                                                            mainland Mexico and the     the document
                                                            Revillagigedos Islands,     begins], September
                                                            transit Baja California,    8, 2016.
                                                            or feed in the North
                                                            Pacific Ocean, primarily
                                                            off California-Oregon,
                                                            northern Washington-
                                                            southern British
                                                            Columbia, northern and
                                                            western Gulf of Alaska
                                                            and East Bering Sea.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

0
3. Add Sec.  223.213 to subpart B to read as follows:


Sec.  223.213  Humpback whales.

    The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the 
ESA (16 U.S.C. 1538) relating to endangered species apply to threatened 
species of the humpback whale listed in Sec.  223.102(e).

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
4. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


0
5. In Sec.  224.101, in the table in paragraph (h), remove the entry 
for ``Whale, humpback'' and add four entries in its place to read as 
follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

[[Page 62320]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Species \1\
--------------------------------------------------------------------------------------    Citation(s) for
                                                              Description of listed           listing           Critical  habitat         ESA rules
            Common name                Scientific name               entity               determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Whale, humpback (Arabian Sea DPS).  Megaptera              Humpback whales that breed  81 FR [Insert Federal  NA..................  NA
                                     novaeangliae.          and feed in the Arabian     Register page where
                                                            Sea.                        the document
                                                                                        begins], September
                                                                                        8, 2016.
Whale, humpback (Cape Verde         Megaptera              Humpback whales that breed  81 FR [Insert Federal  NA..................  NA
 Islands/Northwest Africa DPS).      novaeangliae.          in waters surrounding the   Register page where
                                                            Cape Verde Islands in the   the document
                                                            Eastern North Atlantic      begins], September
                                                            Ocean, as well as those     8, 2016.
                                                            that breed in an
                                                            undetermined breeding
                                                            area in the eastern
                                                            tropical Atlantic
                                                            (possibly Canary Current)
                                                            and feed along the
                                                            Iceland Shelf and Sea and
                                                            the Norwegian Sea.
Whale, humpback (Central America    Megaptera              Humpback whales that breed  81 FR [Insert Federal
 DPS).                               novaeangliae.          in waters off Central       Register page where
                                                            America in the North        the document
                                                            Pacific Ocean and feed      begins], September
                                                            along the west coast of     8, 2016.
                                                            the United States and
                                                            southern British Columbia.
Whale, humpback (Western North      Megaptera              Humpback whales that breed  81 FR [Insert Federal
 Pacific DPS).                       novaeangliae.          or winter in the area of    Register page where
                                                            Okinawa and the             the document
                                                            Philippines in the          begins], September
                                                            Kuroshio Current (as well   8, 2016.
                                                            as unknown breeding
                                                            grounds in the Western
                                                            North Pacific Ocean),
                                                            transit the Ogasawara
                                                            area, or feed in the
                                                            North Pacific Ocean,
                                                            primarily in the West
                                                            Bering Sea and off the
                                                            Russian coast and the
                                                            Aleutian Islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *

0
6. Remove and reserve Sec.  224.103(a) to read as follows:


Sec.  224.103  Special prohibitions for endangered marine mammals.

    (a) [Reserved]
* * * * *
[FR Doc. 2016-21276 Filed 9-6-16; 4:15 pm]
BILLING CODE 3510-22-P