[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Proposed Rules]
[Pages 88639-88656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29412]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 141216999-6999-02]
RIN 0648-XD669


Endangered and Threatened Wildlife and Plants: Notice of 12-Month 
Finding on a Petition To List the Gulf of Mexico Bryde's Whale as 
Endangered Under the Endangered Species Act (ESA)

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

ACTION: Proposed rule, request for comments.

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SUMMARY: We, NMFS, announce a 12-month finding and listing 
determination on a petition to list the Gulf of Mexico Bryde's whale 
(Balaenoptera edeni) as threatened or endangered under the Endangered 
Species Act (ESA). We have completed a Status Review report of the Gulf 
of Mexico Bryde's whale in response to a petition submitted by the 
Natural Resources Defense Council. After reviewing the best scientific 
and commercial data available, including the Status Review report, and 
consulting with the Society for Marine Mammology's Committee on 
Taxonomy, we have determined that the Gulf of Mexico Bryde's whale is 
taxonomically a subspecies of the Bryde's whale thus meeting the ESA's 
definition of a species. Based on the Gulf of Mexico Bryde's whale's 
small population (likely fewer than 100 individuals), its life history 
characteristics, its extremely limited distribution, and its 
vulnerability to existing threats, we believe that the species faces a 
high risk of extinction. Based on these considerations, described in 
more detail within this action, we conclude that the Gulf of Mexico 
Bryde's whale is in danger of extinction throughout all of its range 
and meets the definition of an endangered species. We are soliciting 
information that may be relevant to inform both our final listing 
determination and designation of critical habitat.

DATES: Information and comments on the subject action must be received 
by January 30, 2017. For the specific date of the public hearing, see 
Public Hearing section.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2014-0101 by any of the 
following methods:
     Electronic submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0101, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments;
     Mail: NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701;
     Hand delivery: You may hand deliver written information to 
our office during normal business hours at the street address given 
above.
    The Status Review of Bryde's Whales in the Gulf of Mexico (Rosel et 
al., 2016) and reference list are available by submitting a request to 
the Species Conservation Branch Chief, Protected Resources Division, 
NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701-5505, Attn: Bryde's Whale 12-month Finding. The Status Review 
report and references are also available electronically at: http://sero.nmfs.noaa.gov/protected_resources/listing_petitions/index.html.

FOR FURTHER INFORMATION CONTACT: Laura Engleby or Calusa Horn, NMFS, 
Southeast Regional Office (727) 824-5312 or Marta Nammack, NMFS, Office 
of Protected Resources (301) 427-8469.

SUPPLEMENTARY INFORMATION:

Background

    On September 18, 2014, we received a petition from the Natural 
Resources Defense Council to list the Gulf of

[[Page 88640]]

Mexico population of Bryde's whale (Balaenoptera edeni) as an 
endangered species. The petition asserted that the Bryde's whale in the 
Gulf of Mexico is endangered by at least three of the five ESA section 
4(a)(1) factors: present or threatened destruction, modification, or 
curtailment of habitat or range; inadequacy of existing regulatory 
mechanisms; and other natural or manmade factors affecting its 
continued existence. The petitioner also requested that critical 
habitat be designated concurrent with listing under the ESA.
    On April 6, 2015, we published a 90-day finding that the petition 
presented substantial scientific and commercial information indicating 
that the petitioned action may be warranted (80 FR 18343). At that 
time, we announced the initiation of a formal status review and 
requested scientific and commercial information from the public, 
government agencies, scientific community, industry, and any other 
interested parties on the delineation of, threats to, and the status of 
the Bryde's whale in the Gulf of Mexico including: (1) Historical and 
current distribution, abundance, and population trends; (2) life 
history and biological information including adaptations to ecological 
settings, genetic analyses to assess paternal contribution and 
population connectivity, and movement patterns to determine population 
mixing; (3) management measures and regulatory mechanisms designed to 
protect the species; (4) any current or planned activities that may 
adversely impact the species; and (5) ongoing or planned efforts to 
protect and restore the species and habitat. We received eight public 
comments in response to the 90-day finding, with the majority of 
comments in support of the petition. The public provided relevant 
scientific literature to be considered in the Status Review report as 
well as a recently developed density model and abundance estimate. 
Relevant information was incorporated in the Status Review report and 
in this proposed rule.

Listing Determinations Under the ESA

    We are responsible for determining whether the Bryde's whale in the 
Gulf of Mexico is threatened or endangered under the ESA (16 U.S.C. 
1531 et seq.). Section 4(b)(1)(A) of the ESA requires us to make 
listing determinations based solely on the best scientific and 
commercial data available after conducting a review of the status of 
the species and after taking into account efforts being made by any 
state or foreign nation to protect the species. To be considered for 
listing under the ESA, a group of organisms must constitute a 
``species,'' which is defined in Section 3 of the ESA to include 
taxonomic species and ``any subspecies of fish, or wildlife, or plants, 
and any distinct population segment (DPS) of any species of vertebrate 
fish or wildlife which interbreeds when mature.'' Under NMFS 
regulations, we must rely not only on standard taxonomic distinctions, 
but also on the biological expertise of the agency and the scientific 
community, to determine if the relevant taxonomic group is a 
``species'' for purposes of the ESA (see 50 CFR 424.11). Under Section 
4(a)(1) of the ESA, we must next determine whether any species is 
endangered or threatened due to any of the following five factors: (A) 
The present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence (sections 4(a)(1)(A) 
through (E)).
    To determine whether the Bryde's whale population in the Gulf of 
Mexico warrants listing under the ESA, we first formed a Status Review 
Team (SRT) of seven biologists, including six NOAA Fisheries Science 
Center (Southeast, Southwest, and Northeast) and Southeast Regional 
Office personnel and one member from the Bureau of Safety and 
Environmental Enforcement--Gulf of Mexico Region, to compile and review 
the best available scientific information on Bryde's whales in the Gulf 
of Mexico and assess their extinction risk. The Status Review report 
prepared by the SRT summarizes the taxonomy, distribution, abundance, 
life history, and biology of the species, identifies threats or 
stressors affecting the status of the species, and provides a 
description of existing regulatory mechanisms and conservation efforts 
(Rosel et al., 2016). The Status Review report incorporates information 
received in response to our request for information (80 FR 18343; April 
6, 2015) and comments from three independent peer reviewers. 
Information from the Status Review report about the biology of the Gulf 
of Mexico Bryde's whale is summarized below under ``Biological 
Review.'' The Status Review report also includes a threats evaluation 
and an Extinction Risk Analysis (ERA), conducted by the SRT. The 
results of the threats evaluation are discussed below under ``Threats 
Evaluation'' and the results of the ERA are discussed below under 
``Extinction Risk Analysis.''
    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.'' Thus, we 
interpret an ``endangered species'' to be one that is presently in 
danger of extinction. A ``threatened species,'' on the other hand, is 
not currently at risk of extinction but is likely to become so in the 
foreseeable future. In other words, a key statutory difference between 
a threatened and endangered species is the timing of when a species may 
be in danger of extinction, either presently (endangered) or in the 
foreseeable future (threatened).
    In determining whether the Gulf of Mexico population of Bryde's 
whale meets the standard of endangered or threatened, we first 
determined that, based on the best scientific and commercial data 
available, the Gulf of Mexico Bryde's whale is a genetically distinct 
subspecies of the globally distributed Bryde's whale. We next 
considered the specific life history and ecology of the species, the 
nature of threats, the species' response to those threats, and 
population numbers and trends. We considered both the data and 
information summarized in the Status Review report, as well as the 
results of the ERA. We considered impacts of each identified threat 
both individually and cumulatively. For purposes of our analysis, the 
mere identification of factors that could impact a species negatively 
is not sufficient to compel a finding that ESA listing is appropriate. 
In considering those factors that might constitute threats, we look 
beyond mere exposure of the species to the factor to determine whether 
the species responds, either to a single threat or multiple threats, in 
a way that causes actual impacts at the species level. In making this 
finding, we have considered and evaluated the best available scientific 
and commercial information, including information received in response 
to our 90-day finding.

Biological Review

    This section provides a summary of key biological information 
presented in the Status Review report (Rosel et al., 2016), which 
provides the baseline context and foundation for our listing 
determination. The petition specifically requested that we consider the 
Gulf of Mexico population of Bryde's whale as a DPS and list that 
population as an

[[Page 88641]]

endangered species. Therefore, the SRT first considered whether the 
Bryde's whale in the Gulf of Mexico constituted a DPS, a subspecies, a 
species, or part of the globally distributed Bryde's whale population. 
This section also includes our conclusions based on the biological 
information presented in the Status Review report.

Species Description

    Bryde's whale (B. edeni) is a large baleen whale found in tropical 
and subtropical waters worldwide. Currently two subspecies of Bryde's 
whale are recognized: A smaller form, Eden's whale (B. e. edeni), found 
in the Indian and western Pacific oceans primarily in coastal waters, 
and a larger, more pelagic form, Bryde's whale (B. e. brydei), found 
worldwide. Like Bryde's whales found worldwide, the Bryde's whale in 
the Gulf of Mexico has a streamlined and sleek body shape, a somewhat 
pointed, flat rostrum with three prominent ridges (i.e., a large center 
ridge, and smaller left and right lateral ridges), a large falcate 
dorsal fin, and a counter-shaded color that is fairly uniformly-dark 
dorsally and light to pinkish ventrally (Jefferson et al., 2015). There 
is no apparent morphological difference between the Bryde's whale in 
the Gulf of Mexico and those worldwide. Baleen from these whales has 
not been thoroughly characterized, but the baleen plates from one 
individual from the Gulf of Mexico were dark gray to black with white 
bristles (Rosel et al., 2016). This is consistent with the description 
by Mead (1977), who indicated that the bristles of both Bryde's whale 
subspecies are coarser than those in the closely-related sei whale. 
Limited data (n=14) indicate the length of Bryde's whales in the Gulf 
of Mexico is intermediate with the currently recognized subspecies. The 
largest Bryde's whale observed in the Gulf of Mexico was a lactating 
female at 12.7 meters (m) in length and the next four largest animals 
were 11.2-11.6 m in length (Rosel and Wilcox 2014). Rice (1998) 
reported adult Eden's whales rarely exceed 11.5 m total length and 
adult Bryde's whales from the Atlantic, Pacific and the Indian Ocean 
reach 14.0-15.0 m in length.

Genetics

    In a recent genetic analysis of mitochondrial DNA (mtDNA) samples 
taken from Bryde's whales in the Gulf of Mexico, Rosel and Wilcox 
(2014) found that the Gulf of Mexico population was genetically 
distinct from all other Bryde's whales worldwide. Maternally inherited 
mtDNA is an indicator of population-level differentiation, as it 
evolves relatively rapidly. Rosel and Wilcox (2014) identified 25-26 
fixed nucleotide differences in the mtDNA control region between the 
Bryde's whale in the Gulf of Mexico and the two currently recognized 
subspecies (i.e., Eden's whale and Bryde's whale) and the sei whale (B. 
borealis). They found that the level and pattern of mtDNA 
differentiation discovered indicates that Gulf of Mexico Bryde's whales 
are as genetically differentiated from other Bryde's whales worldwide, 
as those Bryde's whales are differentiated from their most closely-
related species, the sei whale. In addition, genetic analysis of the 
mtDNA data and data from 42 nuclear microsatellite loci (repeating base 
pairs in the DNA) revealed that the genetic diversity within the Gulf 
of Mexico Bryde's whale population is exceedingly low. Rosel and Wilcox 
(2014) concluded that this level of genetic divergence suggests a 
unique evolutionary trajectory for the Gulf of Mexico population of 
Bryde's whale, worthy of its own taxonomic standing.
    The SRT considered this level of genetic divergence to be 
significant, indicating that the Bryde's whale in the Gulf of Mexico is 
a separate subspecies. To confirm its determination, the SRT asked the 
Society for Marine Mammalogy Committee on Taxonomy (Committee) for its 
expert scientific opinion on the level of taxonomic distinctiveness of 
the Bryde's whale in the Gulf of Mexico. The Committee maintains the 
official list of marine mammal species and subspecies for the Society 
for Marine Mammalogy. It updates the list as new descriptions of 
species, subspecies, or taxonomic actions appear in the technical 
literature, adhering to principle and procedures, opinions, and 
directions set forth by the International Commission on Zoological 
Nomenclature. The Committee also reviews, as requested, formal 
descriptions of new taxa and other taxonomic actions, and provides 
expert advice on taxonomic descriptions and other aspects of marine 
mammal taxonomy. In response to the request made by the SRT, all of the 
Committee members who responded (nine out of nine) voted it was 
``highly likely'' that Bryde's whales in the Gulf of Mexico comprise at 
least an undescribed subspecies of what is currently recognized as B. 
edeni. This result constituted the opinion of the Committee, which 
makes decisions by majority vote (W. F. Perrin, Committee Chairman 
2015). Based on the expert opinion from the Committee and the best 
available scientific information, the SRT concluded Bryde's whales in 
the Gulf of Mexico are taxonomically distinct from the other two 
Bryde's whale subspecies. The SRT identified the Bryde's whale 
occurring in the Gulf of Mexico as a separate subspecies called ``GOMx 
Bryde's whale,'' and conducted the Status Review accordingly.
    Our regulations state that, ``In determining whether a particular 
taxon or population is a species for the purpose of the Act, the 
Secretary shall rely on standard taxonomic distinctions and biological 
expertise of the Department and scientific community concerning the 
relevant taxonomic group'' (50 CFR 424.11(a)). Under this provision, we 
must consider the biological expertise of the SRT and the scientific 
community, and apply the best available science when it indicates that 
a taxonomic classification is outdated or incorrect. The GOMx Bryde's 
whale has a high level of genetic divergence from the two recognized 
Bryde's whale subspecies (Eden's whale and Bryde's whale) elsewhere in 
the world. Given this information, we relied on the biological 
expertise of the SRT and the Committee concerning the taxonomic status 
of the Bryde's whale in the Gulf of Mexico. We agree with the SRT and 
the Committee's determination that the Bryde's whale in the Gulf of 
Mexico is taxonomically at least a subspecies of B. edeni. Based on the 
best available scientific and commercial information described above 
and in the Status Review report, we have determined that the Bryde's 
whale in the Gulf of Mexico is a taxonomically distinct subspecies and, 
therefore, eligible for listing under the ESA. Accordingly, we did not 
further consider whether the Gulf of Mexico Bryde's whale population is 
a DPS under the ESA.

Distribution

    The Status Review report (Rosel et al., 2016) found that the 
historical distribution of Bryde's whale in the Gulf of Mexico included 
the northeastern, north-central and southern Gulf of Mexico. This was 
based on work by Reeves et al. (2011), which reviewed whaling logbooks 
of ``Yankee whalers'' and plotted daily locations of ships during the 
period 1788-1877 as a proxy for whaling effort, with locations of 
species takes and sightings in the Gulf of Mexico. These sightings by 
the whalers were generally offshore in deeper (e.g., >1000 m) waters, 
given their primary target of sperm whales (Physeter microcephalus). 
Reeves et al. (2011) concluded whales reported as ``finback'' by 
``Yankee whalers'' in the

[[Page 88642]]

Gulf of Mexico were most likely Bryde's whales, because Bryde's whales 
are the only baleen whales that occur in the Gulf of Mexico year-round. 
The SRT found that these data indicate that the historical distribution 
of Bryde's whales in the Gulf of Mexico was much broader and also 
included the north-central and southern Gulf of Mexico.
    Stranding records from the Southeast U.S. stranding network, the 
Smithsonian Institution, and the literature (Mead 1977, Schmidly 1981, 
Jefferson 1995) include 22 Bryde's whales strandings in the Gulf of 
Mexico from 1954-2012, although three have uncertain species 
identification. Most strandings were recorded east of the Mississippi 
River through west central Florida, but two were recorded west of 
Louisiana. There are no documented Bryde's whale strandings in Texas, 
although strandings of fin (B. physalus), sei (B. borealis), and minke 
(B. acutorostrata) whales have been documented.
    We began conducting oceanic (ship) and continental shelf (ship and 
aerial) surveys for cetaceans in 1991 that continue today. The location 
of shipboard and aerial survey effort in the Gulf of Mexico and 
Atlantic Ocean was plotted by Roberts et al. (2016). Details of Bryde's 
whale sightings from these surveys are summarized in Waring et al. 
(2015). During surveys in 1991, Bryde's whales were sighted in the 
northeastern Gulf of Mexico along the continental shelf break, in an 
area known as the De Soto Canyon. In subsequent surveys, Bryde's whales 
or whales identified as Bryde's/sei whales (i.e.., where it was not 
possible to distinguish between a Bryde's whale or a sei whale), were 
sighted in this same region of the northeastern Gulf of Mexico. When 
observers were able to clearly see the dorsal surface of the rostrum of 
at least one whale, three ridges were present, a diagnostic 
characteristic of Bryde's whales (Maze-Foley & Mullin 2006). As a 
result, our Gulf of Mexico surveys from 1991-2015 use sightings of 
Bryde's whale, Bryde's/sei whale, and baleen whale species collectively 
as the basis for estimates of Bryde's whales abundance and 
distribution. Sightings of Bryde's whales in the Gulf of Mexico have 
been consistently located in the De Soto Canyon area, along the 
continental shelf break between 100 m and 300 m depth. Bryde's whales 
have been sighted in all seasons within the De Soto Canyon area (Mullin 
and Hoggard 2000, Maze-Foley and Mullin 2006, Mullin 2007, DWH MMIQT 
2015). Consequently, LaBrecque et al. (2015) designated this area, home 
to the small resident population of Bryde's whale in the northeastern 
Gulf of Mexico, as a Biologically Important Area (BIA). BIA's are 
reproductive areas, feeding areas, migratory corridors, and areas in 
which small and resident populations are concentrated. They do not have 
direct or immediate regulatory consequences. Rather, they are intended 
to provide the best available science to help inform regulatory and 
management decisions, in order to minimize impacts from anthropogenic 
activities on marine mammals (LaBrecque et al., 2015).
    Despite the lack of sightings of Bryde's whales in the Gulf of 
Mexico outside the BIA, questions remain about their current 
distribution in U.S. waters. NMFS surveys recorded three baleen whales 
sighted outside the BIA (i.e., fin whale identified in 1992 off Texas 
and two sightings of Bryde's/sei whale in 1992 and 1994 along the shelf 
break in the western Gulf of Mexico). In addition, five records of 
`baleen whales' have been recorded from 2010 to 2014 west of the BIA, 
at the longitude of western Louisiana in depths similar to those in the 
BIA (Bureau of Safety and Environmental Enforcement, unpublished). The 
two sightings southwest of Louisiana included photographs showing they 
were clearly baleen whales. However, the information collected was not 
sufficient to identify to the species level. In 2015 a citizen sighted 
and photographed what most experts believe was a Bryde's whale in the 
western Gulf of Mexico south of the Louisiana-Texas border (Rosel et 
al., 2016). Given these observations, the SRT determined that while it 
is possible that a small number of baleen whales occur in U.S. waters 
outside the BIA, these observations in the north-central and western 
Gulf of Mexico were difficult to interpret (Rosel et al., 2016).
    Few systematic surveys have been conducted in the southern Gulf of 
Mexico (i.e., Mexico and Cuba). Six marine mammal surveys were 
conducted from 1997 to 1999 in the southern Gulf of Mexico and 
Yucat[aacute]n Channel. These surveys focused specifically in the 
extreme southern Bay of Campeche, an area where Reeves et al. (2011) 
reported numerous sightings of baleen whales from the whaling logbooks. 
A more recent survey reported a single baleen whale in an area of 
nearly 4,000 square kilometers (km\2\) (Ortega-Ortiz 2002, LaBrecque et 
al. 2015). This whale was identified as a fin whale; however, 
subsequent discussion between the author and the SRT suggested it 
should have been recorded as an unidentified baleen whale (Rosel et 
al., 2016). A compilation of all available records of marine mammal 
sightings, strandings, and captures in the southern Gulf of Mexico 
identified no Bryde's whales (Ortega-Ortiz 2002) as summarized in the 
Status Review report (Rosel et al., 2016).
    We agree with the SRT's findings that what is now recognized as the 
GOMx Bryde's whale has been consistently located over the past 25 years 
along a very narrow depth corridor in the northeastern Gulf of Mexico, 
recognized as the GOMx Bryde's whale BIA. Sightings outside this 
particular area are few, despite a large amount of dedicated marine 
mammal survey effort that included both continental shelf and oceanic 
waters of the Atlantic Ocean off the southeastern United States and the 
northern Gulf of Mexico. Historical whaling records indicate that the 
historical distribution of the GOMx Bryde's whale in the Gulf of Mexico 
was much broader than it is currently and included the north-central 
and southern Gulf of Mexico. We agree with the SRT that the BIA, 
located in the De Soto Canyon area of the northeastern Gulf of Mexico, 
encompasses the current areal distribution of GOMx Bryde's whale.

Abundance Estimates

    All of the abundance estimates for Bryde's whale in the northern 
Gulf of Mexico are based on aerial- or ship-based line-transect surveys 
(Buckland et al., 2005). Various surveys conducted from 1991 to 2012 
are discussed in the Status Review report (Rosel et al., 2016). As 
previously stated, nearly all GOMx Bryde's whale sightings occurred in 
the BIA during surveys that uniformly sampled the entire northern Gulf 
of Mexico. The Marine Mammal Protection Act abundance estimate used for 
management of the ``Northern Gulf of Mexico Bryde's Whale Stock'' is 33 
whales (coefficient of variation = 1.07; Waring et al., 2013). 
Recently, Duke University researchers estimated abundance to be 44 
individuals (coefficient of variation = .27) based on the averages of 
23 years of survey data (Roberts et al., 2015a, Roberts et al., 2016). 
No analysis has been conducted to evaluate abundance trends for GOMx 
Bryde's whale. Given the paucity of data that influences the range in 
the abundance estimates, the SRT agreed by consensus that, given the 
best available science and allowing for the uncertainty of Bryde's 
whale occurrence in non-U.S. waters of the Gulf of Mexico, most likely 
less than 100 individuals exist. For the reasons stated above, we 
concur that likely less than 100 GOMx Bryde's whales exist.

[[Page 88643]]

Behavior

    Little information exists on the behavior of GOMx Bryde's whale. 
Maze-Foley and Mullin (2006) found GOMx Bryde's whales to have a mean 
group size of 2 (range 1 -5, n = 14), similar to group sizes of the 
Eden's and Bryde's whales (Wade and Gerrodette 1993). The GOMx Bryde's 
whale is known to be periodically ``curious'' around ships and has been 
documented approaching them in the Gulf of Mexico (Rosel et al., 2016), 
as observed in Bryde's whales worldwide (Leatherwood et al. 1976, 
Cummings 1985). In September 2015, a female GOMx Bryde's whale was 
tagged with an acoustic and kinematic data-logging tag in the De Soto 
Canyon (Rosel et al., 2016). Over the nearly 3-day tagging period, the 
whale spent 47 percent of its time within 15 m of the surface during 
the day and 88 percent of its time within 15 m of the surface during 
the night (NMFS, unpublished data).

Foraging Ecology

    Little information is available on foraging ecology available for 
GOMx Bryde's whales. Based on behavior observed during assessment 
surveys, these whales do not appear to forage at or near the surface 
(NMFS, unpublished). In general, Bryde's whales are thought to feed 
primarily in the water column on schooling fish such as anchovy, 
sardine, mackerel and herring, and small crustaceans (Kato 2002). These 
prey occur throughout the Gulf of Mexico and the BIA (Grace et al. 
2010). Tracking data from the single whale with an acoustic tag 
(described above) indicated diurnal diving to depths of up to 271 m, 
with foraging lunges apparent at the deepest depths. That whale was 
likely foraging at or just above the sea floor (NMFS, unpublished data) 
where diel-vertical-migrating schooling fish form tight aggregations.

Reproduction and Growth

    Little information exists on reproduction and growth of GOMx 
Bryde's whale; however, similar to Eden's whales and Bryde's whales 
elsewhere in the world, the GOMx Bryde's whale is considered to have k-
selected life history parameters (large body size, long life 
expectancy, slow growth rate, late maturity, with few offspring). 
Taylor et al. (2007) estimated that Bryde's whales worldwide may 
reproduce every two to three years and reach sexual maturity at age 
nine. Given the basic biology of baleen whales, it is likely that under 
normal conditions, the female GOMx Bryde's whales produce a calf every 
2 to 3 years. The largest known GOMx Bryde's whale was a lactating 
female 12.6 m in length (Rosel and Wilcox 2014). Currently, skewed sex 
ratio does not appear to be an issue for this population, as recent 
biopsies have shown equal number of males and females (Rosel and 
Wilcox, 2014; Rosel et al., 2016). No GOMx Bryde's whale calves have 
been reported during surveys. However, two stranded calves have been 
recorded in the Gulf of Mexico: A 4.7 m calf stranded in the Florida 
Panhandle in 2006 (SEUS Historical Stranding Database) and a 6.9 m 
juvenile stranded north of Tampa, Florida, in 1988 (Edds et al. 1993).

Acoustics

    Baleen whale species produce a variety of highly stereotyped, low-
frequency tonal and broadband calls for communication purposes 
(Richardson et al. 1995). These calls are thought to function in a 
reproductive or territorial context, provide individual identification, 
and communicate the presence of danger or food (Richardson et al., 
1995). Bryde's whales worldwide produce a variety of calls that are 
distinctive among geographic regions that may be useful for delineating 
subspecies or populations (Oleson et al. 2003, [Scaron]irovi[cacute] et 
al. 2014). In the Gulf of Mexico, [Scaron]irovi[cacute] et al. (2014) 
reported Bryde's whale call types composed of downsweeps and downsweep 
sequences and localized these calls. Rice et al. (2014) detected these 
sequences, as well as two stereotyped tonal call types that originated 
from Bryde's whales in the Gulf of Mexico. One call type has been 
definitively identified to free-ranging GOMx Bryde's whales 
([Scaron]irovi[cacute] et al., 2014), four additional call types have 
been proposed as likely candidates (Rice et al., 2014a, 
[Scaron]irovi[cacute] et al., 2014), and two call types have been 
described from a captive juvenile during rehabilitation (Edds et al., 
1993). Based on these data, the calls by the Gulf of Mexico Bryde's 
whale are consistent with, but different from those previously reported 
for Bryde's whales worldwide (Rice et al., 2014). These unique acoustic 
signatures support the genetic analyses identifying the GOMx Bryde's 
whale as an evolutionary distinct unit (Rosel and Wilcox 2014).

Threats Evaluation

    The threats evaluation is the second step in making an ESA listing 
determination for the GOMx Bryde's whale, as described above in 
``Listing Determinations Under the ESA.'' The SRT identified a total of 
27 specific threats, organized and described them according to the five 
ESA factors listed in section 4(a)(1), and then evaluated the severity 
of each threat with a level of certainty (see Appendix 3 in Rosel et 
al., 2016). Because direct evidence from studies on GOMx Bryde's whales 
was lacking, the SRT agreed that published scientific evidence from 
other similar marine mammals was relevant and necessary to estimate 
impacts to GOMx Bryde's whale and extinction risk.
    To promote consistency when ranking each threat, the SRT used 
definitions for `severity of threat' and `level of certainty' similar 
to other status reviews, including the Hawaiian insular false killer 
whales (Oleson et al. 2010) and the northeastern Pacific population of 
white shark (Dewar et al. 2013). The SRT categorically defined specific 
rankings for both severity and certainty for each specific threat 
(identified below) as ``low,'' ``moderate,'' or ``high.'' The 
categorical definitions for the severity of each threat were identified 
by the SRT as 1 = ``low,'' meaning that the threat is likely to only 
slightly impair the population; 2 = ``moderate,'' meaning that the 
threat is likely to moderately degrade the population; or 3 = ``high,'' 
meaning that the threat is likely to eliminate or seriously degrade the 
population. The SRT also scored the certainty of the threat severity 
based on the following categorical definitions: 1 = ``low,'' meaning 
little published and/or unpublished data exist to support the 
conclusion that the threat did affect, is affecting, or is likely to 
affect the GOMx Bryde's whale with the severity ascribed; 2 = 
``moderate,'' meaning some published and/or unpublished data exist to 
support the conclusion that the threat did affect, is affecting, or is 
likely to affect the population with the severity ascribed; and 3 = 
``high,'' meaning there are definitive published and/or unpublished 
data to support the conclusion that this threat did affect, is 
affecting, or is likely to affect the GOMx Bryde's whale with the 
severity ascribed. Then, to determine the overall impact of an ESA 
factor, the SRT looked at the collective impact of threats considered 
for each ESA factor to provide an ``overall threat ranking'' for each 
ESA factor, defined as follows: 1= ``low,'' meaning the ESA factor 
included ``a low number'' of threats likely to contribute to the 
decline of the GOMx Bryde's whale; 2 = ``moderate,'' meaning the ESA 
Factor included an intermediate number of threats likely to contribute 
to the decline of the GOMx Bryde's whale, or contained some individual 
threats identified as moderately likely to contribute to the decline; 
and 3 = ``high,'' meaning the ESA factor included a high number of 
threats that are moderately or very likely

[[Page 88644]]

to contribute to the decline of the GOMx Bryde's whale, or contains 
some individual threats identified as very likely to contribute to the 
decline of the GOMx Bryde's whale.
    The SRT then calculated the numerical mean of the team members' 
scores for each threat or category of threats. However, we do not 
believe that relying on the numerical mean of the SRT's scores is 
appropriate, because the specific rankings for the severity, certainty, 
and overall threat were categorically defined by the SRT and not 
numerically defined. Therefore, we assessed the majority vote of the 
team members' scores (i.e., 1, 2, or 3, as described above) and 
assigned each threat a specific ranking defined by the SRT's 
categorical definitions (i.e., low, moderate or high) based on the 
majority vote of the SRT. When there was no clear majority (i.e., no 
rank received four votes), the categorical ranking we assigned was a 
combination of the two ranks receiving three votes each (e.g., three 
votes for high and three votes for moderate we characterized as 
``moderate-high'').
    Each of the 27 threats identified by the SRT is summarized below, 
by ESA factor, with severity and certainty rankings based on the SRT's 
categorical scoring, as described above. We also summarize the overall 
threat ranking for each ESA factor, based on the SRT's scores, and 
provide NMFS' determination with regard to each factor. A detailed 
table of the SRT's threats and rankings can be found in Appendix 3 of 
the Status Review report (Rosel et al., 2016).

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Habitat or Range

    The SRT considered the following threats to the GOMx Bryde's whale 
under ESA Factor A: Energy exploration and development, oil spills and 
spill response, harmful algal blooms, persistent organic pollutants, 
and heavy metals. Based on the SRT's numerical threat rankings, the 
overall threat ranking assigned to Factor A was ``high.''
Energy Exploration and Development
    The SRT assigned the threat of energy exploration and development 
(drilling rigs, platforms, cables, pipelines) a score of ``high'' 
severity threat with ``moderate'' certainty, as it relates to 
destruction, modification, or curtailments of the range of the GOMx 
Bryde's whale. (Note: Other aspects or elements of energy exploration 
and development can act directly on the whales (e.g., noise, vessel 
collision, marine debris). The SRT evaluated those threats under Factor 
E, other natural or human factors affecting a species continued 
existence. Accordingly, we discuss and evaluate those threats under 
Factor E below.)
    The Gulf of Mexico is a major oil and gas producing area and has 
proven a steady and reliable source of crude oil and natural gas for 
more than 50 years. Approximately 2,300 platforms operate in Federal 
outer continental shelf (OCS) waters (Rosel et al., 2016) and in 2001 
approximately 27,569 miles (44,368 km) of pipeline lay on the Gulf of 
Mexico seafloor (Cranswick 2001). For planning and administrative 
purposes, the Bureau of Ocean Energy Management (BOEM) has divided the 
Gulf of Mexico into three planning areas: Western, Central, and 
Eastern. The majority of active lease sales are located in the Western 
and Central Planning Areas. Habitat in the north-central and western 
Gulf of Mexico, which includes the GOMx Bryde's whale's historical 
range, has been significantly modified with the presence of thousands 
of oil and gas platforms. The Eastern Planning Area (EPA), which 
overlaps with the GOMx Bryde's whale BIA, currently has no production 
activity, with most of the area falling under a moratorium of lease 
sales until 2022. However, this moratorium expires in 2022, and GOMx 
Bryde's whale could then be exposed to increased threats associated 
with energy exploration and development activities (e.g., marine 
debris, operational discharge, vessel collision, noise, seismic 
surveys, oil spills, etc.) as they are almost exclusively located 
within this geographic region. In addition to expressing concern 
regarding the current curtailment of the GOMx Bryde's whale range due 
to energy exploration and development in the north-central and western 
Gulf of Mexico, the SRT raised significant concern about the moratorium 
expiring and the potential expansion of impacts that opening these 
waters to development would have on the Bryde's whale BIA in the 
future, especially in light of the apparent limited use by Bryde's 
whales of the north-central and western Gulf of Mexico.
Oil Spills and Spill Response
    Oil spills are a common occurrence in the Gulf of Mexico. In 2010, 
the Deepwater Horizon (DWH) oil spill was the largest spill affecting 
U.S. waters in U.S. history, spilling nearly 134 million gallons (507 
million liters) of oil into the Gulf of Mexico. In addition, 46 
smaller-scale spills associated with oil and gas related activities 
(e.g., platforms, rigs, vessels, pipelines) occurred in the Gulf of 
Mexico between 2011 and 2013 (OCS EIS EA BOEM 2015-001).
    Exposure to oil spills may cause marine mammals acute or chronic 
impacts with lethal or sub-lethal effects depending on the size and 
duration of the spill. For large baleen whales, like the GOMx Bryde's 
whale, oil can foul the baleen they use to filter-feed, decreasing 
their ability to eat, and resulting in the ingestion of oil (Geraci et 
al., 1989). Impacts from exposure may also include: Reproductive 
failure, lung and respiratory impairments, decreased body condition and 
overall health, and increased susceptibility to other diseases (Harvey 
and Dahlheim 1994). Oil and other chemicals on the body of marine 
mammals may result in irritation, burns to mucous membranes of eyes and 
mouth, and increased susceptibility to infection (DWH Trustees 2016). 
Dispersants used during oil spill response activities may also be toxic 
to marine mammals (Wise et al., 2014a). After oil spills cease, marine 
mammals may experience continued effects through persistent exposure to 
oil and dispersants in the environment, reduction or contamination of 
prey, direct ingestion of contaminated prey, or displacement from 
preferred habitat (Schwacke et al., 2014, BOEM and Gulf of Mexico OCS 
Region 2015, DWH Trustees 2016). The DWH oil spill is an example of the 
significant impacts a spill can have on the status of the GOMx Bryde's 
whale. Although the DWH platform was not located within the BIA, the 
oil footprint included 48 percent of GOMx Bryde's whale habitat and an 
estimated 17 percent of the species was killed, 22 percent of 
reproductive females experienced reproductive failure, and 18 percent 
of the population likely suffered adverse health effects due to the 
spill (DWH Trustees 2016). Based on the SRT's scoring, the threat of 
exposure to oil spills and spill response is a ``high'' severity threat 
with a ``high'' level of certainty to the GOMx Bryde's whale.
Harmful Algal Blooms
    Harmful Algal Blooms (HAB) occur throughout the Gulf of Mexico, 
with most blooms occurring off the coast of Florida. One of the most 
common HAB species, Karenia brevis (also known as the red tide 
organism), is common along coastal zones, but can also develop 
offshore. Karenia brevis produces neurotoxins that affect the nervous 
system by blocking the entry of sodium ions to nerve and muscle cells 
(Geraci et al., 1989). The neurotoxins can accumulate in primary 
consumers through direct exposure to toxins in the water, ingestion, or 
inhalation. Once

[[Page 88645]]

neurotoxins have entered the food web, bioaccumulation can occur in 
predators higher up on the food web, like GOMx Bryde's whales.
    HABs are also known to negatively affect marine mammal populations 
through acute and chronic detrimental health effects, including 
reproductive failure (reviewed in Fire et al., 2009). Although no 
documented cases of GOMx Bryde's whale deaths resulting from HABs 
exist, cases involving humpback whales (Megaptera novaeangliae; Geraci 
et al., 1989) and potentially fin (B. physalus) and minke whales 
(Gulland and Hall 2007) have been reported. Impacts from HABs have also 
been associated with large-scale mortality events for common bottlenose 
dolphins and manatees in the offshore and coastal waters of the 
northeastern Gulf of Mexico. Given the small population size of the 
GOMx Bryde's whale, the SRT noted that a HAB-induced mortality of a 
single breeding female would significantly degrade the status of the 
population. Largely due to human activities, HABs are increasing in 
frequency, duration, and intensity throughout the world (Van Dolah 
2000). Based on the SRT's scoring, the threat of harmful algal blooms 
(HABs) is a ``moderate'' severity threat with a ``low'' level 
certainty.
Persistent Organic Pollutants and Heavy Metals
    Concentrations of persistent organic pollutants (POP) are typically 
lower in baleen whales compared to toothed whales due to differences in 
feeding levels in the trophic system (Waugh et al., 2014, Wise et al., 
2014b). In general, thresholds for adverse impacts to baleen whales 
resulting from POPs are unknown (Steiger and Calambokidis 2000).
    Little is known about the effects of heavy metals on offshore 
marine mammal populations. Heavy metals can accumulate in whale tissue 
and cause toxicity (Sanpera et al., 1996, Hern[aacute]ndez et al., 
2000, Wise et al., 2009). Similarly heavy metals accumulate in prey at 
the trophic levels where marine mammals feed. However, concentrations 
of heavy metals in tissue vary based on physiological and ecological 
factors such as geographic location, diet, age, sex, tissue, and 
metabolic rate (Das et al., 2003). Although heavy metals are pervasive 
in the marine environment and documented in various marine mammal 
species, their impact on Bryde's whale health and survivorship is 
unknown. Based on the SRT's scoring, the threat of POPs and heavy 
metals are ``low'' severity threat, with a ``moderate'' level of 
certainty for POPs and a ``low'' level of certainty for heavy metals.
Summary of Factor A
    We interpret the overall risk assigned by the SRT for ESA Factor A 
as ``high,'' indicating that there are a high number of threats that 
are moderately or very likely to contribute to the decline of the GOMx 
Bryde's whale, or some individual threats identified as very likely to 
contribute to the decline of the population. Specifically, the SRT 
found that energy exploration and development, and oil spills and spill 
response, were significant threats currently seriously degrading the 
GOMx Bryde's whale population. In addition, the SRT found that HABs, 
POPs, and heavy metals are not currently significantly contributing to 
the risk of extinction for the Gulf of Mexico Bryde's whale.
    Based on the comprehensive status review and after considering the 
SRT's threats assessment, we conclude that energy exploration and 
development, and oil spills and spill response, are currently 
increasing the GOMx Bryde's whales risk of extinction.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The SRT considered two threats under ESA Factor B; historical 
whaling and scientific biopsy sampling. The overall rank assigned for 
Factor B, based on the SRT's scoring, is ``low.''
Historical Whaling
    The SRT scored the impacts from historical whaling as a ``low'' 
severity threat with a ``moderate-high'' degree of certainty. Whaling 
that occurred in the 18th and 19th centuries in the Gulf of Mexico may 
have removed Bryde's whales. The primary target species were sperm 
whales, but other species were taken. Reeves et al., (2011) indicated 
that, during the 18th and 19th centuries, whalers hunting ``finback 
whales'' in the Gulf of Mexico were most likely taking Bryde's whales, 
based on the known distribution and recent records of baleen whale 
species in the Gulf of Mexico. However, the total number of whales 
killed during that time cannot be quantified. The SRT determined that 
it is unlikely the current low abundance of GOMx Bryde's whales is 
related to historical whaling, as the population would have recovered 
to some extent, given the estimated population recovery rate (Wade 
1998) and considering that whaling stopped over a century ago (Rosel et 
al., 2016). Whaling is not a current threat in the Gulf of Mexico and 
is regulated by the International Whaling Commission (see Factor D). 
The SRT ranked the impacts from historical whaling as ``low'' severity 
threat with a ``moderate-high'' degree of certainty.
Scientific Biopsy Sampling
    Scientific research that may have the potential to disturb and/or 
injure marine mammals such as the Bryde's whale requires a letter of 
authorization under the Marine Mammal Protection Act (MMPA). As of 
March 7, 2016 (the reference date used by the SRT), there was one 
active scientific permit authorizing non-lethal take of GOMx Bryde's 
whale and four scientific research permits authorizing non-lethal take 
of Bryde's whales worldwide, including the Gulf of Mexico. The permits 
authorize activities such as vessel or aerial surveys, photo-
identification, behavioral observation, collection of sloughed skin, 
and passive acoustics. Four of the permits also authorize activities 
such as dart biopsies and/or tagging. Biopsy sampling, where a small 
piece of tissue is removed for analysis, is a common research activity 
used to support stock differentiation, evaluate genetic variation, and 
investigate health, reproduction and pollutant loads (Brown et al., 
1994). Research on wound healing from biopsies has indicated little 
long-term impact (Brown et al., 1994, Best et al., 2005). In addition, 
research activities are closely monitored and evaluated in the United 
States in an attempt to minimize impacts (see Factor D). The SRT scored 
the threat of scientific biopsy sampling as a ``low'' severity threat 
with a ``high'' level of certainty.
Summary of Factor B
    The overall threat rank assigned for Factor B by the SRT was 
``low,'' indicating there are a low number of threats that are likely 
to contribute to the decline of the GOMx Bryde's whale. We conclude, 
based on our review of the information presented in the Status Review 
report and SRTs threats assessment, that the threats posed by whaling 
and scientific biopsy sampling are not increasing the risk of 
extinction for the Gulf of Mexico Bryde's whale. Upon reviewing the 
information in the Status Review report and the SRT's threats 
assessment, we concluded that whaling and scientific biopsy sampling 
are low potential threats to the GOMx Bryde's whale and are not 
currently contributing to the risk of extinction.

Factor C. Disease, Parasites, and Predation

    The SRT considered the following threats under ESA Factor C: 
Disease and

[[Page 88646]]

parasites, and predation. The overall rank assigned for Factor C based 
on the SRT's scoring was ``low.''
Disease and Parasites
    There is little information on disease or parasitism of any Bryde's 
whale in the literature. Reviews of conservation issues for baleen 
whales have tended to see disease as a relatively inconsequential 
threat (Claphan et al., 1999). The SRT noted that cetacean 
morbillivirus, which causes epizootics resulting in serious population 
declines in dolphin species (Van Bressem et al., 2014), has also been 
detected in fin whales in the eastern Atlantic Ocean (Jauniaux et al., 
2000) and in fin whales and minke whales in the Mediterranean Sea 
(Mazzariol et al., 2012; Di Guardo et al., 1995). In the Gulf of Mexico 
the morbillivirus outbreaks that occurred in 1990, 1992, and 1994, 
caused marine mammal mortalities, with most the mortalities being 
common bottlenose dolphins (Rosel et al., 2016). These outbreaks were 
thought to have originated in the Atlantic Ocean (Litz et al. 2014). An 
unusual mortality event involving hundreds of common bottlenose 
dolphins in the Atlantic Ocean from 2013-2015 was caused by 
morbillivirus (Rosel et al., 2016). During this outbreak, a few 
individuals of multiple species of baleen whales in the Atlantic tested 
positive for the disease, indicating that it could potentially spread 
to Bryde's whales (Rosel et al., 2016). However, there have been no 
confirmed morbillivirus-related deaths of Bryde's whales in the Gulf of 
Mexico (Rosel et al., 2016).
    The SRT identified only two cases of other diseases and parasites 
known to occur in Bryde's whale detected in Australia (Patterson 1984) 
and Brazil (Pinto et al., 2004). Based on the SRT's scoring, the threat 
of disease and parasites is a ``low'' severity threat with ``low'' 
certainty.
Predation
    Killer whales (Orcinus orca) are the only known predator to Bryde's 
whales and they occur in areas further offshore from the BIA (Silber & 
Newcomer 1990, Alava et al. 2013). There are no published records of 
killer whale predation of GOMx Bryde's whale (Rosel et al., 2016). 
Killer whales have been observed harassing sperm whales and attacking 
pantropical spotted dolphins (Stenella attenuate) and a dwarf/pygmy 
sperm whale (Kogia sp.) (Pitman et al. 2001, Whitt et al. 2015, NMFS 
SEFSC, unpublished) in the Gulf of Mexico. While large sharks (e.g., 
white sharks Carcharodon carcharias, and tiger sharks Galaecerdo 
cuvier) are known to scavenge on carcasses of Bryde's whales elsewhere 
in the world (Dudley et al. 2000), the SRT found no published reports 
of large shark predation on healthy, living individuals (Rosel et al., 
2016). Based on this information, the SRT's scoring of this threat was 
``low'' severity with ``low'' certainty.
Summary of Factor C
    The overall threat rank assigned for Factor C, based on the SRT's 
scoring was ``low,'' indicating that this category includes a low 
number of threats that are likely to contribute to the decline of the 
GOMx Bryde's whale. Based on the limited observance of disease, 
parasites, or predation, we concur that these are low potential threats 
to the GOMx Bryde's whale and are not currently contributing to their 
extinction risk.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The relevance of existing regulatory mechanisms to extinction risk 
for an individual species depends on the vulnerability of that species 
to each of the threats identified under the other factors of ESA 
section 4, and the extent to which regulatory mechanisms could or do 
control the threats that are contributing to the species' extinction 
risk. If a species is not vulnerable to a particular threat, it is not 
necessary to evaluate the adequacy of existing regulatory mechanisms 
for addressing that threat. Conversely, if a species is vulnerable to a 
particular threat, we do evaluate the adequacy of existing measures, if 
any, in controlling or mitigating that threat. In the following 
paragraphs, we summarize existing regulatory mechanisms relevant to 
threats to GOMx Bryde's whale generally, and assess their adequacy for 
controlling those threats.
Marine Mammal Protection Act
    In U.S. waters, Bryde's whales are protected by the MMPA (16 U.S.C. 
1361 et seq.). The MMPA sets forth a national policy to prevent marine 
mammal species or population stocks from diminishing to the point where 
they are no longer a significant functioning element of their 
ecosystem. The Secretaries of Commerce and the Interior have primary 
responsibility for implementing the MMPA. The Secretary of Commerce has 
jurisdiction over the orders Cetacean and Pinnipedia with the exception 
of walruses, and the Secretary of Interior has jurisdiction over all 
other marine mammals. Both agencies are responsible for promulgating 
regulations, issuing permits, conducting scientific research, and 
enforcing regulations, as necessary, to carry out the purposes of the 
MMPA. The MMPA includes a general moratorium on the `taking' and 
importing of marine mammals, which is subject to a number of 
exceptions. Some of these exceptions include `take' for scientific 
purposes, public display, and unintentional incidental take coincident 
with conducting lawful activities. Any U.S. citizen, agency, or company 
who engages in a specified activity other than commercial fishing 
(which is specifically and separately addressed under the MMPA) within 
a specified geographic region may submit an application to the 
Secretary to authorize the incidental, but not intentional, taking of 
small numbers of marine mammals within that region for a period of not 
more than five consecutive years (16 U.S.C. 1371(a)(5)(A)). U.S. 
citizens can also apply under the MMPA for authorization to 
incidentally take marine mammals by harassment for up to 1 year (16 
U.S.C. 1371(a)(5)(D)). For both types of authorizations, it must be 
determined that the take is of small numbers, has no more than a 
negligible impact on those marine mammal species or stocks, and does 
not have an unmitigable adverse impact on the availability of the 
species or stock for subsistence use. The MMPA also provides mechanisms 
for directed ``take'' of marine mammals for the purposes of scientific 
research. Non-lethal research takes of Bryde's whale for scientific 
research (e.g., biopsy sampling) are currently authorized on a global 
scale and typically do not specify a geographic area. Hence the 
potential for multiple biopsies of an individual Bryde's whale does 
exist. However, any risk to GOMx Bryde's whale from multiple sampling 
is low, and we do not expect any mortalities to result. In these 
situations, we take a proactive role and coordinate with researchers to 
minimize any potential negative effects to a small population.
    The MMPA currently identifies the Northern Gulf of Mexico stock of 
Bryde's whales as a ``strategic'' stock, because the level of direct 
human-caused mortality and serious injury exceeds the potential 
biological removal (PBR) level determined for the species, which could 
have management implications. The MMPA also provides additional 
protections to stocks designated as ``depleted'' and requires that 
conservation plans be developed to conserve and restore the stock to 
its optimum sustainable population (OSP). In order for a stock to be 
considered ``depleted'' the Secretary, after consultation with the 
Marine Mammal

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Commission and the Committee of Scientific Advisors on Marine Mammals, 
must determine it is below its OSP or if the species or stock is listed 
under the ESA. In 2015, the Marine Mammal Stock Assessment Report 
determined that the status of the Northern Gulf of Mexico Population of 
Bryde's whales, relative to OSP was unknown, as there was insufficient 
information to determine population trends (SARS 2015). Due to this 
lack of information on OSP, the GOMx Bryde's whale is not designated as 
a ``depleted'' stock and there is no conservation plan. Based on the 
above, we conclude that, outside of the general protections provided to 
marine mammals by the MMPA, there are no specific regulatory mechanisms 
specific to the GOMx Bryde's whale under the MMPA.
Outer Continental Shelf Lands Act and the Oil Pollution Act
    The SRT also identified existing regulatory mechanisms relating to 
oil and gas development and oil spills and spill response (see Factors 
A and E for a discussion of those threats). The Outer Continental Shelf 
Lands Act (OCSLA) establishes Federal jurisdiction over submerged lands 
on the OCS seaward of coastal state boundaries in order to explore and 
develop oil and gas resources. Implementation, regulation, and granting 
of leases for exploration and development on the OCS are delegated to 
the BOEM, and BOEM is responsible for managing development of the 
nation's offshore resources. The functions of BOEM include leasing, 
exploration and development, plan administration, environmental 
studies, National Environmental Policy Act (NEPA) analysis, resource 
evaluation, economic analysis, and the renewable energy program BSEE is 
responsible for enforcing safety and environmental regulations. OCSLA 
mandates that orderly development of OCS energy resources be balanced 
with protection of human, marine and coastal environments. It is the 
stated objective of the OCSLA ``to prevent or minimize the likelihood 
of blowouts, loss of well control, fires, spillages . . . or other 
occurrences which may cause damage to the environment or to property, 
or endanger life or health'' (43 U.S.C. 1332(6)). OCSLA further 
requires the study of the environmental impacts of oil and gas leases 
on the continental shelf, including an assessment of effects on marine 
biota (43 U.S.C. 1346). OCSLA, as amended, requires the Secretary of 
the Interior, through BOEM and BSEE, to manage the exploration and 
development of OCS oil, gas, and marine minerals (e.g., sand and 
gravel) and the siting of renewable energy facilities. The Energy 
Policy Act of 2005, Public Law (Pub. L.) 109-58, added Section 
8(p)(1)(C) to the OCSLA, which grants the Secretary of Interior the 
authority to issue leases, easements, or rights-of-way on the OCS for 
the purpose of renewable energy development (43 U.S.C. 1337(p)(1)(C)). 
This authority has been delegated to BOEM (30 CFR 585), who now 
regulates activities within Federal waters. Since 2006, there has been 
a moratorium on leasing new areas for oil and gas development and 
production in the Gulf of Mexico EPA that includes the waters offshore 
of Florida, including the BIA. The moratorium is set to expire in 2022 
and, if it is not renewed, the GOMx Bryde's whale within the BIA could 
be exposed to increased energy exploration.
    The Oil Pollution Act (OPA) of 1990 (33 U.S.C. 2701-2761) is the 
principal statute governing oil spills in the nation's waterways. OPA 
was passed following the March 1989 Exxon Valdez oil spill to address a 
lack of adequate resources, particularly Federal funds, to respond to 
oil spills (National Pollution Funds Center 2016). The OPA created 
requirements for preventing, responding to, and funding restoration for 
oil pollution incidents in navigable waters, adjoining shorelines, and 
Federal waters. The OPA authorizes Trustees (representatives of 
Federal, state, and local government entities, and Tribes with 
jurisdiction over the natural resources in question) to determine the 
type and amount of restoration needed to compensate the public for the 
environmental impacts of the spill. These assessments are typically 
described in damage assessment and restoration plans. The Final 
Programmatic Damage Assessment and Restoration Plan (PDARP) developed 
for the 2010 DWH oil spill found the GOMx Bryde's whale to be the most 
impacted oceanic and shelf marine mammal; 48 percent of the population 
was affected, resulting in an estimated 22 percent maximum decline in 
population size (DWH Trustees 2016). The DWH PDARP allocates fifty-five 
million dollars over the next 15 years for restoration of oceanic and 
shelf marine mammals, including Bryde's whales. The PDARP does not 
identify specific projects, but lays out a framework for planning 
future restoration projects, that may contribute to the restoration of 
GOMx Bryde's whale.
    The ongoing impacts to the GOMx Bryde's whale from oil and gas 
development and oil spills in the Gulf of Mexico identified by the SRT 
indicate that existing regulatory mechanisms are not adequate to 
control these threats. While the current moratorium on leasing for new 
oil and gas development in the EPA appears to provide some protection 
to the GOMx Bryde's whale, the SRT found that development in the Gulf 
of Mexico continues to have broad impacts, through curtailment of range 
and anthropogenic noise from seismic surveys and vessels associated 
with oil and gas development. Additionally, the existing moratorium on 
new leases in the EPA expires in 2022 and, if not renewed, energy 
exploration would be allowed in the GOMx Bryde's whale BIA, resulting 
in potentially severe impacts to this small population. We acknowledge 
that activities under the DWH PDARP may be beneficial to GOMx Bryde's 
whales, but we also conclude that oil spills and spill response remain 
a serious current threat to the GOMx Bryde's whale population, as 
discussed above in Factor A.
International Convention for the Regulation of Whaling
    The International Whaling Commission (IWC) was set up under the 
International Convention for the Regulation of Whaling (ICRW), signed 
in 1946. The IWC established an international moratorium on commercial 
whaling for all large whale species in 1982, effective in 1986; this 
affected all member (signatory) nations (paragraph 10e, IWC 2009a). 
Since 1985, IWC catch limits for commercial whaling have been set at 
zero. However, under the IWC's regulations, commercial whaling has been 
permitted in both Norway and Iceland based on their objection to 
specific provisions. In addition, harvest of whales by Japan for 
scientific purposes has been permitted by the ICRW, including the 
Bryde's whale in the North Pacific. However, distribution of the GOMx 
Bryde's whale does not overlap with any permitted commercial whaling. 
The SRT concluded the current commercial whaling moratorium provides 
significant protection for the GOMx Bryde's whale, and we concur.
The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora
    The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) is aimed at protecting species at risk from 
unregulated international trade and regulates international trade in 
animals and plants by listing species in one of its three appendices. 
The level of monitoring and control to which an animal or plant species 
is subject depends on the appendix in which the

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species is listed. All Bryde's whales (B. edeni) are currently listed 
in Appendix I under CITES. Appendix I includes species that are 
threatened with extinction and may be affected by trade; trade of 
Appendix I species is only allowed in exceptional circumstances. Due to 
the IWC commercial whaling moratorium in place since 1985, commercial 
trade of Bryde's whale in the Gulf of Mexico has not been permitted. 
However, if the moratorium should be lifted in the future, the Bryde's 
whale's CITES Appendix I listing would restrict trade, so that trade 
would not contribute to the extinction risk of the species.
International Maritime Organization
    The International Maritime Organization (IMO), a branch of the 
United Nations, is the international authority on shipping, pollution, 
and safety at sea and has adopted guidelines to reduce shipping noise 
and pollution from maritime vessels. Additionally, the IMO's Marine 
Environment Protection Committee occasionally identifies special areas 
and routing schemes for various ecological, economic, or scientific 
reasons. Some of these actions help benefit endangered right whales and 
humpback whales. However the SRT found no protected areas or routing 
schemes that would protect the GOMx Bryde's whale.
Mexico Energy Sector: Opening to Private Investment
    The SRT expressed concern regarding potential oil and gas 
development in the southern Gulf of Mexico. Mexico recently instituted 
reforms related to its oil and gas sector that officially opened 
Mexico's oil, natural gas, and energy sectors to private investment. As 
a result, Mexico's state-owned petroleum company, Petroleos Mexicanos 
(Pemex) may now partner with international companies for the purposes 
of exploring the southern Gulf of Mexico's deep water and shale 
resources. The SRT found that more than 9 companies have shallow water 
lease permits either pending or approved, and 2D and 3D seismic data 
collection has begun. In 2013, the U.S. Congress approved the U.S.-
Mexico Transboundary Hydrocarbons Agreement, which aims to facilitate 
joint development of oil and natural gas in part of the Gulf of Mexico. 
This agreement, coupled with recent reforms in Mexico, could lead to 
development within the Gulf of Mexico offshore Mexico oil and gas, 
including infrastructure for cross-border pipelines. The SRT found that 
recent developments indicate a high potential for oil and gas 
development in these waters. However, we believe that anticipating any 
future threats to the GOMx Bryde's whale at this point in time is 
overly speculative, because the best available science indicates that 
the GOMx Bryde's whale distribution does not currently include the 
southern Gulf of Mexico.
Summary of Factor D
    The SRT unanimously agreed that the inadequacy of existing 
regulatory mechanisms factor is a ``high'' threat to the GOMx Bryde's 
whale (Rosel et al., 2016). Specifically the SRT found that, given the 
current status and limited distribution of the Bryde's whale population 
in the Gulf of Mexico, it is clear that existing regulations have been 
inadequate to protect them. The SRT expressed particular concern 
regarding current oil and gas development and impacts from oil spills 
in the Gulf of Mexico, as well as vessel strikes due to shipping 
traffic. We agree that currently there are no regulatory mechanisms in 
the Gulf of Mexico to address ship strikes on GOMx Bryde's whales, 
which the SRT identified as one of the primary threats faced by the 
species (see Factor E below). Additionally, the Status Review report 
suggests that oil and gas development in the Gulf of Mexico have been a 
contributing factor to limiting the GOMx Bryde's whale's current range 
to the De Soto Canyon. Thus, while we acknowledge that existing 
protective regulations are in place, we agree with the SRT's overall 
conclusion that the existing regulatory mechanisms have not prevented 
the current status of the GOMx Bryde's whale, for the reasons stated 
above.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The SRT categorized threats under ESA Factor E by three groups: A 
general category for ``other natural or human factors;'' anthropogenic 
noise; and small population concerns. Within the general sub-category 
for other natural or human factors, the SRT included: Vessel collision; 
military activities; fishing gear entanglements; trophic impacts due to 
commercial harvest of prey; climate change; plastics and marine debris; 
and aquaculture. Within the anthropogenic noise sub-category of Factor 
E, the SRT included: Aircraft and vessel noise associated with oil and 
gas activities; drilling and production noise associated with oil and 
gas activities; seismic survey noise associated with oil and gas 
activities; noise associated with military training and exercises; 
noise associated with commercial fisheries and scientific acoustics; 
and noise associated with vessels and shipping traffic. Within the 
small population concerns sub-category of Factor E, the SRT included: 
Allee effects; demographic stochasticity; genetics; k-selected life-
history parameters; and stochastic and catastrophic events. An 
explanation of these threats and the SRT's ranking for each of these 
sub-categories follows.

Other Natural or Human Factors

    Vessel Collision--Vessel collisions are a significant source of 
mortality for a variety of coastal large whale species (Laist et al., 
2001). The northern Gulf of Mexico is an area of considerably high 
amount of ship traffic, which increases the risk of vessel-whale 
collisions (Rosel et al., 2016). Several important commercial shipping 
lanes travel through the primary GOMx Bryde's whale habitat in the 
northeastern Gulf of Mexico, particularly vessel traffic from ports in 
Mobile, Pensacola, Panama City, and Tampa (see Figure 17; Rosel et al., 
2016). In 2009, a GOMx Bryde's whale was found floating dead in the 
Port of Tampa, Tampa Bay, Florida. The documented cause of death was 
blunt impact trauma due to ship strike (Waring et al., 2016). The 
necropsy report found that the whale was a lactating female indicating 
that the whale was nursing a calf. It is likely that the calf died, as 
it was still dependent on the mother.
    Bryde's whales are the third most commonly reported species struck 
by ships in the southern hemisphere (Van Waerebeek et al., 2007). As 
previously described, tracking information from a single GOMx Bryde's 
whale indicated a consistent diel dive pattern over 3 days, with 88 
percent of nighttime hours spent within 15 m of the surface. This 
suggested to the SRT that, if other individuals exhibit a similar 
diving pattern, they would be at greater risk of ship strike, because 
they spend most of the time at the surface at night when there is 
minimal visibility. Marine mammals that spend the majority of their 
nighttime hours near the surface and animals that spend more time at or 
near the surface are at greater risk than species that spend less time 
at the surface (Rosel et al., 2016). Additionally, the threat of vessel 
collision may increase in the future given the expansion of the Panama 
Canal, which is anticipated to increase vessel traffic in the Gulf of 
Mexico (Institute for Water Resources 2012). Given the location of 
commercial shipping lanes, the difficulty of sighting a whale at the 
surface at night, and the low ability of large ships to change course 
quickly enough to avoid a whale, the SRT's scoring indicates that ship

[[Page 88649]]

strikes pose a ``high'' severity threat to the GOMx Bryde's whale with 
``high'' certainty.
    Military Activities--Significant portions of the Gulf of Mexico are 
used for military activities. NMFS conducted a 2013 Biological Opinion 
to assess the impact of the Navy training exercises and coordinated via 
a Letter of Authorization under the MMPA to govern unintentional takes 
incidental to training and testing activities (Rosel et al., 2016). 
Although Level B harassment (i.e., activities that have the potential 
to disturb or harass) is authorized, the Navy determined that very few 
training or testing activities are likely to occur within the BIA (see 
Figures 18 and 19 in Rosel et al., 2016). Moreover, the Navy agreed to 
expand their Planning Awareness Area to encompass the Bryde's whale BIA 
and as a result they will avoid planning major training activities 
there, when feasible. In addition, Eglin Air Force Base (AFB) also 
conducts training exercises in the Gulf of Mexico. Eglin AFB also has 
an incidental harassment authorization for common bottlenose dolphin 
and Atlantic spotted dolphin, for their Maritime Weapon Systems 
Evaluation Program. However, their training activities take place in 
relatively shallow water (i.e., 35 to 50 m depth). Eglin AFB does not 
anticipate that its activities would take GOMx Bryde's whales, because 
the GOMx Bryde's whales are rare in the areas involved (e.g., shallow 
waters); therefore, Eglin AFB did not request a take authorization 
(Rosel et al., 2016; 81 FR 7307, February 11, 2016). The SRT concluded 
that, although there are military activities in the Gulf of Mexico, 
including the northern Gulf of Mexico, most activities appeared to 
occur outside the BIA. In addition, they found that military activities 
are not constant, and due to the current scope of existing activities, 
the threat was considered less likely to have negative impacts on the 
population (Rosel et al., 2016). However, the SRT believed that this 
threat would need to be re-evaluated if the intensity, timing, or 
location of military training exercises encroached closer to the BIA. 
Based on the SRT rankings, the threat of military activities (i.e., 
explosive pressure waves, target training, and vessel activities) is a 
``moderate'' threat with ``low'' certainty. The threat of noise from 
military activities is considered under the Anthropogenic Noise 
section, below.
    Fishing Gear Entanglement--Marine mammals are known to become 
hooked, trapped, or entangled in fishing gear, leading to injury or 
mortality (Read 2008, Reeves et al., 2013). While gear interactions are 
documented more frequently for toothed whales, they remain a threat to 
small populations of baleen whales like the GOMx Bryde's whale (Reeves 
et al., 2013). The SRT evaluated the special distribution and fishing 
effort for 12 fisheries that occur in the Gulf of Mexico. Based on 
their evaluation, the SRT concluded that five commercial fisheries 
(Table 7; Rosel et al., 2016) overlap or possibly overlap with the 
Bryde's whale BIA and use gear types (i.e., pelagic longlines, bottom 
longlines, and trawls) that pose entanglement threats to whales.
    Pelagic longlines are a known entanglement threat to baleen whales, 
as the majority of mainline gear is in the water column and animals 
swimming in the area may interact with the gear (Andersen et al., 
2008). The Atlantic Ocean, Caribbean, Gulf of Mexico commercial pelagic 
longline fishery for large pelagic species is active within the GOMx 
Bryde's whale BIA. Approximately two thirds of the BIA has been closed 
to commercial pelagic longline fishing year-round since 2000, when the 
Highly Migratory Species Atlantic Tunas, Swordfish, and Sharks Fishery 
Management Plan was amended to close the De Soto Canyon Marine 
Protected Area (65 FR 47214, August 1, 2000). While longline fishing 
still occurs in the remaining one third of the BIA (Figure 20B; Rosel 
et al., 2016), the fishery typically operates in waters greater than 
300m, where sightings of Bryde's whales are infrequent. To date, no 
interactions between GOMx Bryde's whale and pelagic longline gear have 
been recorded.
    Gulf reef fish and shark bottom longline gear consists of a 
monofilament mainline up to a mile in length anchored on the seafloor, 
with up to 1,000 baited hooks along the mainline and marked with buoys. 
Generally bottom longline gear poses less of a threat of entanglement 
threat to cetaceans compared to pelagic longline gear, except when 
cetaceans forage along the seafloor. Such foraging appears to be the 
case with the GOMx Bryde's whale, exposing them to risk of entanglement 
in mainlines. These fisheries overlap spatially with the GOMx Bryde's 
whale BIA. While bottom longlining typically occurs in waters less than 
100m, fishing for yellowedge grouper, golden tilefish, blueline 
tilefish, and sharks occurs in deeper waters between 100 and 300m 
within the BIA. The available information indicates the GOMx Bryde's 
whale forages on or near the seafloor bottom, such that, potential for 
interactions exists, although no interactions have been recorded (Rosel 
et al., 2016).
    Both the Gulf of Mexico shrimp trawl fishery and the butterfish 
trawl fishery occur within the GOMx Bryde's whale BIA (Rosel et al., 
2016). However, the shrimp trawl fishery has limited spatial overlap 
with the BIA and the areas that do overlap represent only a small 
portion of total fishing effort. The butterfish trawl fishery is small, 
with only two participants currently permitted, and limited available 
information. Based on the SRT's scoring, the threat of entanglement in 
commercial fishing gear is ``moderate'' in severity with ``moderate'' 
certainty.
    Trophic Impacts Due to Commercial Harvest of Prey Items--While GOMx 
Bryde's whales' prey in the Gulf of Mexico are currently unknown (Rosel 
et al., 2016), they likely feed on anchovy, sardine, mackerel and 
herring, and small crustaceans, similar to Bryde's whales worldwide 
(Kato 2000). The two main Gulf of Mexico commercial fisheries for small 
schooling fish are the Gulf of Mexico menhaden purse-seine fishery and 
the Florida west coast sardine purse-seine fishery; the main 
invertebrate fishery is the Gulf of Mexico shrimp trawl fishery. The 
SRT concluded that direct competition between GOMx Bryde's whale and 
commercial fisheries did not appear to be likely, based on the current 
distribution of the GOMx Bryde's whale, the distribution of fishery 
effort, and presumed fish and invertebrate habitat (Rosel et al., 
2016). The SRT also evaluated the threat of total biomass removal by 
the menhaden purse-seine fishery and the shrimp trawl fishery in the 
Gulf of Mexico and the resulting impact on ecosystem functioning, 
species composition, and potential trophic pathway alterations, and 
concluded that the ecosystem and trophic effects of these removals are 
unknown. Based on the SRT's scoring, the threat from trophic impacts 
due to commercial harvest of prey is a ``low'' severity threat with 
``low'' certainty.
    Climate Change--The impacts of climate change on cetaceans are not 
easily quantified; however direct and indirect impacts are expected 
(Evans and Bj[oslash]rge 2013). Potential impacts of climate change on 
marine mammals include range shifts, habitat degradation or loss, 
changes to the food web, susceptibility to disease and contaminants, 
and thermal intolerance (MacLeod 2009, Evans and Bj[oslash]rge 2013). 
The restricted distribution of the GOMx Bryde's whale is a concern, as 
climate change may disproportionately affect species with specialized 
or restricted habitat requirements. As water temperatures rise, many 
marine species will have to shift their distributions

[[Page 88650]]

northward or in a direction that maintains a near-constant environment 
(e.g., temperature and prey availability) (Evans et al., 2010). Within 
the Gulf of Mexico, GOMx Bryde's whales have little room to shift their 
distribution northward into cooler waters. Furthermore, the predicted 
changes in freshwater inflow and the associated effects on productivity 
may affect the health of the Gulf of Mexico. While recognizing the 
potential threat that climate change poses to the GOMx Bryde's whale, 
the SRT considered that there are more significant and immediate 
pressures on the GOMx Bryde's whale (Rosel et al., 2016). The SRT 
assigned the threat of climate change as a ``low'' severity threat to 
GOMx Bryde's whale with ``low'' certainty.
    Plastics and Marine Debris--Plastics comprise 60-80 percent of all 
marine debris (Baulch and Perry 2014), and derelict fishing gear is the 
second most common form of marine debris (National Oceanic Service 
2015). The interactions of marine mammals with marine debris in the 
Gulf of Mexico are not frequently documented and the SRT did not find 
any documented cases specific to Bryde's whale (NOAA Fisheries Marine 
Mammal Health and Stranding Response Database). Less than one percent 
of marine mammal strandings in the Gulf of Mexico from 2000-2014 showed 
evidence of entanglement or ingestion of marine debris (NOAA Fisheries 
Marine Mammal Health and Stranding Response Database, March 21, 2016). 
While noting that the records of reported marine mammal strandings may 
not be comprehensive, the SRT's scoring ranked this threat as ``low'' 
severity with ``low'' certainty (Rosel et al., 2016).
    Aquaculture--There are currently no aquaculture facilities in the 
U.S. waters of the Gulf of Mexico. However, a final rule was published 
on January 13, 2016 (81 FR 1761) regulating offshore marine aquaculture 
in the Gulf of Mexico and establishing a regional permitting process. 
We note that this final rule is currently under challenge in a pending 
court proceeding, Gulf Fishermen's Association, et al. v. NMFS, 16-cv-
01271 (E.D. La.). The associated Fishery Management Plan for Regulating 
Offshore Aquaculture in the Gulf of Mexico (FMP) specifies that each 
facility must satisfy a list of siting requirements and conditions and 
specifies that an application may be denied for potential risks to 
essential fish habitat, endangered and threatened species, marine 
mammals, wild fish and invertebrate stocks, public health, or safety 
(Gulf of Mexico Fishery Management Council and National Marine 
Fisheries Service 2009). Marine mammals are known to interact with 
aquaculture facilities through physical interaction with nets, ropes, 
twine and anchor lines (Price and Marris 2013). Because each 
application, including the proposed location, will be considered on a 
case-by-case basis, taking into account potential impacts to marine 
mammals, and no aquaculture facilities are currently sited in the Gulf 
of Mexico, the SRT scoring indicates that the SRT found aquaculture to 
be a ``low'' severity threat with ``low'' certainty.
    Anthropogenic Noise--A variety of anthropogenic noise sources, such 
as energy exploration and development and shipping have considerable 
energy at low frequencies (<100 Hz) (Sodal 1999; Nieukirk et al., 2004; 
Hildebrand 2009; Nieukirk et al., 2012) and are pervasive in the Gulf 
of Mexico (Rosel et al., 2016). Baleen whales produce calls that span a 
similar low frequency range (20 Hz-30 kHz), and therefore, presumably 
these species' best hearing abilities fall within this range, and are 
most impacted by low-frequency sounds (Richardson et al., 1995, Ketten 
1997, Ketten et al., 2013, Cranford and Krysl 2015). Marine mammals 
rely heavily on their hearing to detect and interpret communication and 
environmental cues to select mates, find food, maintain group structure 
and relationships, avoid predators, navigate, and perform other 
critical life functions (Rosel et al., 2016). As noise levels rise in 
the marine environment, there are a variety of direct and indirect 
adverse physical and behavioral effects to marine mammals such as 
death, hearing loss or impairment, stress, behavioral changes, 
physiological effects, reduced foraging success, reduced reproductive 
success, masking of communication and environmental cues, and habitat 
displacement (Richardson et al., 1995, Southall et al., 2007, Francis 
and Barber 2013). The SRT evaluated anthropogenic noise and separately 
assessed, as detailed below, noise from aircraft and vessels associated 
with oil and gas activities, seismic surveys associated with oil and 
gas activities, noise associated with military training and exercises, 
noise associated with commercial fisheries and scientific acoustics, 
and noise associated with vessels and shipping traffic.
    Noise Generated from Aircraft and Vessels and Oil Drilling and 
Production Associated with Oil and Gas Activities--Aircraft and vessel 
operations (service vessels, etc.) support outer continental shelf oil 
and gas activities in the Gulf of Mexico. Routine aircraft overflights 
may interrupt and elicit a startle response from marine mammals nearby 
(Richardson et al., 1995). However, if marine mammals are nearby, the 
disturbance caused by helicopters approaching or departing OCS oil and 
gas facilities will be short in duration and transient in nature. The 
SRT reasoned that aircraft and vessel operations may ensonify large 
areas, but due to the lack of oil and gas activities currently in the 
eastern Gulf of Mexico, the threat from service aircraft and vessel 
noise to GOMx Bryde's whale should be minimal.
    Oil drilling and production activities produce low-frequency 
underwater sounds that are in the frequency range detectable by the 
GOMx Bryde's whale and, given the amount of drilling activity and 
platforms in the central and western Gulf of Mexico, noise levels are 
already high. While there are currently no wells being drilled in the 
eastern Gulf of Mexico, and no production platforms in place, the 
potential opening of the EPA that overlaps the GOMx Bryde's whale BIA 
for oil and gas exploration is of considerable concern (Rosel et al., 
2016). Based on the SRT's scoring, the threat of noise generated from 
aircraft and vessels associated with oil and gas activities and noise 
from drilling and oil production is a ``moderate'' threat, with a 
``moderate'' level of certainty for noise associated with aircraft and 
vessels, and the SRT assigned a ``low'' level of certainty for noise 
generated from drilling and oil production.
    Seismic Survey Noise Associated with Oil and Gas Activities--The 
northern Gulf of Mexico is an area of high seismic survey activity; 
seismic surveys are typically conducted 24 hours a day, 365-days a 
year, using airguns that are a source of primarily low-frequency sound 
(Sodal 1999), and that overlap with ranges baleen whales use for 
communication and hearing (Rosel et al., 2016). These low-frequency 
sounds can travel substantial distances and airgun sounds have been 
recorded many hundreds of miles away from the survey locations 
(Nieukirk et al., 2004). Seismic surveys have the potential to cause 
serious injury to animals within 100m-1km of airguns with source levels 
of 230 dB re 1 [micro]Pa (peak) or higher (Southall et al., 2007). 
Behavioral changes following seismic surveys, specifically changes in 
vocal behavior and habitat avoidance, have been documented for baleen 
whales (Malme et al., 1984, McCauley et al., 1998, Gordon et al., 2001, 
Blackwell et al., 2015). While reactions of Bryde's whales to seismic 
surveys have not been studied, the

[[Page 88651]]

auditory abilities of all baleen whale species are considered to be 
broadly similar based upon vocalization frequencies and ear anatomy 
(Ketten 1998). There are currently few seismic surveys occurring in the 
eastern Gulf of Mexico, due in part to the moratorium on energy 
exploration in the EPA; however, the SRT noted that, given the ability 
of low-frequency sounds to travel substantial distances, sounds from 
nearby surveys may be impacting the GOMx Bryde's whales in the BIA. The 
SRT scorned anthropogenic noise associated with seismic surveys as a 
``high'' severity threat with ``moderate'' certainty.
    Noise Associated with Military Training and Exercises--Military 
training and exercises use active sonar sources and explosives as part 
of their operations and each of these sources have the potential to 
impact marine mammals (Rosel et al., 2016). However, as discussed 
above, most military activities that occur in the Gulf of Mexico take 
place outside of the GOMx Bryde's whale BIA and the Navy expanded their 
Planning Awareness Area to encompass the BIA (see Military Activities 
above). The SRT found this threat to be less likely to have a negative 
impact on the GOMx Bryde's whale compared to other threats associated 
with the anthropogenic noise considered in this sub-category. 
Therefore, the SRT assigned the threat of noise associated with 
military training and exercises as ``low'' in severity with a 
``moderate'' level of certainty.
    Noise Associated with Commercial Fisheries and Scientific 
Acoustics--Commercial and scientific vessels employ active sonar for 
the detection, localization, and classification of underwater targets, 
including the seafloor, plankton, fish, and human divers (Hildebrand 
2009). Source frequencies of many of these sonars are likely above the 
frequency range for Bryde's whale hearing (Watkins 1986, Au et al. 
2006, Tubelli et al. 2012). Recent technological advancements, such as 
Ocean Acoustic Waveguide Remote Sensing (OAWRS) system, use low-
frequency acoustics that have the potential to impact baleen whale 
behavior (Risch et al., 2012). However, the SRT concluded these low-
frequency systems are not likely to be used in U.S. waters in the 
future (Rosel et al., 2016). Because the acoustic frequencies 
associated with the sonar systems employed by commercial fisheries and 
scientific vessels are not within the range of GOMx Bryde's whale 
hearing and are not likely to be used in the Gulf of Mexico, the SRT 
assigned the threat of noise associated with commercial fisheries and 
scientific acoustics a ranking of ``low'' in severity with ``low'' 
certainty.
    Noise Associated with Shipping Traffic and Vessels--Noise from 
shipping traffic is an unintended byproduct of shipping and depends on 
factors such as ship type, load, speed, ship hull and propeller design; 
noise levels increase with increasing speed and vessel size (Allen et 
al., 2012, McKella et al 2012b, Rudd et al., 2015). Shipping noise is 
characterized by mainly low frequencies (Hermannsen et al., 2014) and 
contributes significantly to low-frequency noise in the marine 
environment (National Research Council 2003, Hildebrand 2009). 
Approximately 50 percent of U.S. merchant vessel traffic (as measured 
by port calls or tonnage for merchant vessels over 1000 gross tons) 
occurs at U.S. Gulf of Mexico ports, indicating shipping activity is a 
significant source of noise in this region. Noise is likely to increase 
as shipping trends indicate that faster, larger ships will traverse the 
Gulf of Mexico following expansion of the Panama Canal (Rosel et al., 
2016).
    Shipping noise in the northeast United States was predicted to 
reduce the communication space of humpback whales, right whales, and 
fin whales by 8 percent, 77 percent, and 20 percent, respectively, by 
masking their calls (Clark et al. 2009). Because Bryde's whale call 
source levels are most similar to those of right whales, the SRT found 
they may be similarly impacted (Rosel et al., 2016). Documented impacts 
of vessel and shipping noise on marine mammals, like the GOMx Bryde's 
whale, include: habitat displacement; changes in diving and foraging 
behavior; changes in vocalization behavior; and altered stress hormone 
levels (Rosel et al., 2016).
    The SRT found that there is a high level of low frequency noise 
caused by shipping activity in the Gulf of Mexico, and that it is 
likely the GOMx Bryde's whale is experiencing significant biological 
impacts as a result. The impacts to the GOMx Bryde's whale are assumed 
to be similar to those observed in other low frequency hearing baleen 
whale species, and include increased stress hormone levels, changes in 
dive and foraging behavior and communication, and habitat displacement. 
The SRT assigned the threat of noise associated with shipping traffic 
and vessels a score of ``moderate'' severity threat with ``moderate'' 
certainty.

Small Population Concerns

    The final sub-category considered by the SRT under ESA Factor E was 
small population concerns. The SRT considered Allee effects, 
demographic stochasticity, genetics, k-selected life-history 
parameters, and stochastic and catastrophic events under this sub-
category.
    Allee Effects--If a population is critically small in size, 
individuals may have difficulty finding a mate. The probability of 
finding a mate depends largely on density (i.e., abundance per area) 
rather than absolute abundance alone (Rosel et al., 2016). As 
previously discussed, noise from ships and industrial oil activities, 
including seismic exploration, could mask mating calls and contribute 
to reduced fecundity of the GOMx Bryde's whale (Rosel et al., 2016). 
The small population size (i.e., likely less than 100 individuals) may 
mean that Allee effects are occurring, making it difficult for 
individual whales to find one another for breeding, thereby reducing 
the population growth rate. The SRT's scored the impacts from Allee 
effects as a ``moderate'' threat in both severity and certainty.
    Demographic Stochasticity--Demographic stochasticity refers to the 
variability of annual population change arising from random birth and 
death events at the individual level. Populations that are small in 
number are more vulnerable to adverse effects from demographic 
stochasticity. Demographic stochasticity is also more problematic for 
slowly reproducing species, such as GOMx Bryde's whales, which under 
normal conditions are likely to produce a calf every two to three 
years, similar to Bryde's whales worldwide and Eden's whale. Mean 
population growth rates can be reduced by variances in inter-annual 
growth rates, and this variance steadily increases as the population 
size decreases (Goodman 1987). The SRT also noted that, while skewed 
sex ratios do not currently appear to be a problem for GOMx Bryde's 
whales, their low calving rate and small population size create a 
higher probability of developing skewed sex ratios through chance 
alone. The SRT's scored the threat from impacts from demographic 
stochasticity as ``high'' in both severity and certainty.
    Genetics--Genetic stochasticity results from three separate 
factors: Inbreeding depression, loss of potentially adaptive genetic 
diversity and mutation accumulation (Frankham 2005, Reed 2005). The SRT 
concluded that the very small population size and documented low level 
of genetic

[[Page 88652]]

diversity (Rosel and Wilcox 2014) indicates that the GOMx Bryde's whale 
is likely already experiencing inbreeding (mating with related 
individuals) that could lead to a loss of potentially adaptive genetic 
diversity and accumulation of deleterious mutations (Frankham 2005, 
Reed 2005). Applying the estimate from Taylor et al., (2007) of 0.51 
for the proportion of a Bryde's whale population that is mature, and 
assuming a stable age distribution, the SRT concluded there would be at 
most 50 mature individuals for the GOMx Bryde's whale population, 
putting the whales at immediate recognized risk for genetic factors. 
Even with a 50-50 sex ratio, the SRT concluded that current abundance 
estimates are so low that current Bryde's whale population levels would 
meet any genetic risk threshold for decreased population growth due to 
inbreeding depression and potential loss of adaptive genetic diversity 
(Rosel et al., 2016). The SRT scored the threat of genetic 
stochasticity as ``high'' in both severity and certainty.
    K-Selected Life History Parameters--In general all whales are 
considered as k-selected species due to their life history 
characteristics of large-size, late-maturity, and iteroparous 
reproduction that is energetically expensive, resulting in few 
offspring. K-selected life history characteristics in and of themselves 
are not a problem for baleen whales, but a small population size 
coupled with a low productivity rate further hinders population growth 
and increases the time frame for recovery when, as with the GOMx 
Bryde's whale, the population size is small and overly vulnerable to 
threats (Rosel et al., 2016). The SRT assigned the threat from k-
selective life history parameters a score of ``high'' in severity and 
certainty.
    Stochastic and Catastrophic Events--The small number of GOMx 
Bryde's whales and their restricted range (i.e., De Soto Canyon area of 
the northeastern Gulf of Mexico) exacerbates the species' vulnerability 
to stochastic and catastrophic events. Further, the GOMx Bryde's whales 
are in close proximity to oil extraction developments, extreme weather 
events, and HABs. For example, an analysis of the impacts of Deepwater 
Horizon oil spill on cetacean stocks in the Gulf of Mexico estimated 
that 17 percent of the GOMx Bryde's whale population was killed (DWH 
Trustees 2016). The SRT scored the threat from stochastic and 
catastrophic events on the GOMx Bryde's whale as ``high'' in severity 
with ``high'' certainty.
Summary of Factor E
    The overall threat rank for ESA Factor E by the SRT was influenced 
by the suite of threats assessed by the SRT. Based on the SRT's 
scoring, vessel collision, followed by fishing gear entanglements, 
presents the most serious individual threats of those considered in the 
generic ``other natural and human factors,'' category. The threat of 
vessel collision is a significant source of mortality for a variety of 
coastal whale species and several important commercial shipping lanes 
travel through the GOMx Bryde's whale BIA (Rosel et al., 2016). Fishing 
gear entanglement from the pelagic longline and bottom longline 
fisheries is a threat due to the spatial overlap between these 
fisheries and the Bryde's whale BIA, and the potential for interactions 
given the whale's foraging behavior (Rosel et al., 2016). The SRT's 
overall threat ranking for the generic ``other natural or human factors 
category'' was moderate-high. The SRT's overall threat ranking for the 
sub-category of ``anthropogenic noise'' was ``high'', which was driven 
strongly by the impacts of seismic noise, shipping noise, and oil and 
gas activities. The greatest threat identified by the SRT under ESA 
Factor E was ``small population concerns, which the SRT's scoring 
unanimously assigned a ``high'' overall threat rank.
    In summary, the SRT found the level of anthropogenic noise in the 
Gulf of Mexico, the cumulative threat posed by energy exploration, 
development and production, and the risk of vessel collisions, in 
combination with the small population size, are threats that are likely 
to eliminate or seriously degrade the population. The overall rank the 
SRT assigned for Factor E was ``high'' (i.e., two high overall ranks 
and one moderate-high overall rank), indicating that there are a high 
number of threats that are moderately or very likely to contribute to 
the decline of the GOMx Bryde's whale. Considering the assessment 
completed by the SRT, we determine that the threats considered under 
Factor E are currently increasing the risk of extinction for the GOMx 
Bryde's whale.

NMFS' Conclusions From Threats Evaluation

    The most serious threats to the GOMx Bryde's whale are: Energy 
exploration and development, oil spills and oil spill response, vessel 
collision, anthropogenic noise, and the effects of small population 
size. We consider these threats, under ESA section 4(a)(1) factors A 
and E, as overall ``high'' threats. We agree with the SRT's assessment 
that these threats are currently affecting the status of the GOMx 
Bryde's whale, and find that they are putting it at a heightened risk 
of extinction. We also agree with the SRT's characterization of factors 
B and C, overutilization for commercial, recreational, scientific, or 
educational purposes and disease, parasites, or predation, and their 
low overall ranking. We find that these are not factors that are likely 
contributing to the extinction risk for the GOMx Bryde's whale. 
Finally, we agree with the SRT's overall conclusion for Factor D, that 
existing regulatory measures have not adequately prevented the GOMx 
Bryde's whale from reaching its current status, given the presence of 
current threats to the GOMx Bryde's whale identified under Factors A 
and E.

Demographic Risk Analysis

    The SRT also evaluated four demographic factors to assess the 
degree of extinction risk: Abundance, spatial distribution, growth/
productivity, and genetic diversity. These demographic criteria have 
been used in previous NMFS status reviews to summarize and assess a 
population's extinction risk due to demographic processes. The SRT used 
the following definitions to rank these factors: 1 = ``No or low risk: 
it is unlikely that this factor contributes significantly to risk of 
extinction, either by itself or in combination with other factors;'' 2 
= ``Low risk: it is unlikely that this factor contributes significantly 
to risk of extinction by itself, but some concern that it may 
contribute, in combination with other factors;'' 3 = ``Moderate risk: 
it is likely that this factor in combination with others contributes 
significantly to risk of extinction;'' 4 = ``High risk: it is likely 
that this factor, by itself, contributes significantly to risk of 
extinction''; and 5 = ``Very high risk: it is highly likely that this 
factor, by itself, contributes significantly to risk of extinction.'' 
As described in detail below, the SRT concluded that each of these four 
demographic factors are likely to contribute significantly to the risk 
of extinction for the GOMx Bryde's whale.
    The SRT determined that both abundance and spatial distribution 
were ``very high risk'' factors, meaning that it is highly likely that 
each factor, by itself, contributes significantly to the risk of 
extinction. The SRT concluded the best available science indicated: (1) 
The number of GOMx Bryde's whales is likely less than 100 mature 
individuals, and (2) their current distribution restricted to a small 
region along the continental shelf break (100-300 m) in the De Soto 
Canyon makes them

[[Page 88653]]

vulnerable to catastrophe. The SRT concluded that the GOMx Bryde's 
whale constitutes a dangerously small population, at or below the near-
extinction population level, and the species' restricted range makes it 
vulnerable to a single catastrophic event (Rosel et al., 2016).
    The SRT ranked both growth/productivity and genetic diversity as 
``high'' risk factors, meaning that it is likely that each factor, by 
itself, contributes significantly to the risk of extinction. The SRT 
noted that the life-history characteristics of the GOMx Bryde's whale 
(i.e., late-maturing, long gestation, single offspring) result in a 
slower recovery ability from their small population size and leads to a 
longer time during which a risk factor like a catastrophe could occur 
(Rosel et al., 2016). Allee effects were also identified by the SRT as 
increasing extinction risk because the small number of individuals 
reduces population growth rate through mate limitation (Rosel et al., 
2016). Similarly, the low level of genetic diversity, documented in 
both mtDNA and nuclear DNA by Rosel and Wilcox (2014), combined with 
the small population size, means that individuals are likely breeding 
with related individuals and inbreeding depression may be occurring, 
resulting in a loss of genetic diversity (Rosel et al., 2016).

Extinction Risk Analysis

    The SRT considered the information provided in the Status Review 
report and demographic risk factors to conduct an Extinction Risk 
Analysis (ERA). The SRT summarized its ERA for the GOMx Bryde's whale, 
placing it in the context of our agency guidelines on how to synthesize 
extinction risk (NMFS 2015). Those agency guidelines define the high 
extinction risk category as:

    A species or DPS with a high risk of extinction is at or near a 
level of abundance, productivity, spatial structure, and/or 
diversity that places its continued persistence in question. The 
demographics of a species or DPS at such a high level of risk may be 
highly uncertain and strongly influenced by stochastic or 
depensatory processes. Similarly, a species or DPS may be at high 
risk of extinction if it faces clear and present threats (e.g., 
confinement to a small geographic area; imminent destruction, 
modification, or curtailment of its habitat; or disease epidemic) 
that are likely to create present and substantial demographic risks.

Applying this standard, the SRT unanimously agreed that the GOMx 
Bryde's whale has a high risk of extinction.
    The SRT provided the following summary of the concerns leading to 
its overall extinction risk assessment:

    The GOMx Bryde's whale population is very small and is 
restricted to a small habitat area in the De Soto Canyon region of 
the northeastern [Gulf of Mexico]. Their level of genetic divergence 
from other Bryde's whales worldwide indicates they are 
reproductively isolated and on a unique evolutionary trajectory. The 
Society for Marine Mammalogy's Committee on Taxonomy concluded they 
represent at least an unnamed subspecies of Bryde's whales. Although 
the historic population size is unknown, whaling data indicate their 
distribution in the [Gulf of Mexico] was once much broader. The Team 
concluded, therefore, based on the best available scientific data, 
that there has been a range contraction such that their primary 
range is restricted to the northeastern [Gulf of Mexico] although 
there are limited data from outside U.S. waters. The north-central 
and western [Gulf of Mexico] contains some of the most 
industrialized marine waters in the U.S. due to expansive energy 
exploration and production, and also experiences significant 
commercial shipping traffic and commercial fishing activity. The 
area in the northeastern [Gulf of Mexico], where all verified 
sightings of Bryde's whales have been recorded during cetacean 
surveys, has experienced the least amount of energy exploration, due 
in part to a moratorium put in place in 2006. However, this 
moratorium expires in 2022 and the eastern [Gulf of Mexico] could be 
exposed to increased energy activities. Commercial fishing and 
vessel traffic also could affect the whales in the eastern [Gulf of 
Mexico].
    The Team concluded that the small population size alone put the 
GOMx Bryde's whale at high risk of extinction. The small size of 
this population makes it vulnerable to inbreeding depression, 
demographic stochasticity, and stochastic and catastrophic events. 
The combination of small size plus risk factors that may have 
affected the population in the past and may affect it in the future, 
further increase the extinction risk. These factors include, in 
particular, impacts due to energy exploration (e.g., habitat 
modification, noise from seismic surveys, and shipping) and energy 
production (e.g., oil spills), and vessel collisions. The Team's 
concern for this group of whales is further increased by uncertainty 
regarding the cause(s) of its small population size, its limited 
distribution, current and future threats, and the long-term 
viability of the population (Rosel et al., 2016).

    We consider the SRT's approach to assessing the extinction risk for 
GOMx Bryde's whale appropriate, consistent with our agency guidance, 
and based on the best scientific and commercial information available. 
Based on the key conclusions from the Status Review report, including 
the ERA (Rosel et al., 2016), we find that the GOMx Bryde's whale is a 
species, as defined by the ESA, which is in danger of extinction 
throughout all of its range, as a result of ESA Factors A (the present 
or threatened destruction, modification or curtailment of a species' 
habitat or range), D (inadequacy of existing regulatory mechanisms), 
and E (other natural or manmade factors affecting its continued 
existence). Accordingly, we find that the species meets the definition 
of an endangered species.

Protective Efforts

    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into consideration those 
efforts, if any, being made by any State or foreign nation to protect 
the species. To evaluate the efficacy of domestic efforts that have not 
yet been implemented or that have been implemented, but have not yet 
demonstrated to be effective, the Services developed a joint ``Policy 
for Evaluation of Conservation Efforts When Making Listing Decisions'' 
(PECE) (68 FR 15100; March 28, 2003). The PECE is designed to ensure 
consistent and adequate evaluation on whether domestic conservation 
efforts that have been recently adopted or implemented, but not yet 
proven to be successful, will result in recovering the species to the 
point at which listing is not warranted or contribute to forming the 
basis for listing a species as threatened rather than endangered. The 
PECE is expected to facilitate the development of conservation efforts 
by states and other entities that sufficiently improve a species' 
status so as to make listing the species as threatened or endangered 
unnecessary.
    The PECE establishes two overarching criteria to use in evaluating 
efforts identified in conservations plans, conservation agreements, 
management plans or similar documents: (1) The certainty that the 
conservation efforts will be implemented; and (2) the certainty that 
the efforts will be effective. We have considered the actions 
identified by the SRT (i.e., potential future DWH PDARP restoration 
activities and Gulf of Mexico Marine Assessment Program for Protected 
Species (GoMMAPPS) as conservation efforts and we have concluded that 
they do not meet the PECE policy criteria (see analysis below).
    The Status Review report (Rosel et al., 2016) summarized two known 
conservation efforts, both of which are planned and have yet to be 
implemented, which we further assess here: The DWH PDARP and the 
GoMMAPPS. The restoration plan in the PDARP is a framework for planning 
future restoration projects. For marine mammals, the PDARP focuses on 
restoration activities that support population resilience, reduce 
further harm or impacts, and complement existing management priorities, 
with the

[[Page 88654]]

goal of compensating for the population injuries suffered by each 
marine mammal stock. GOMx Bryde's whales were the most impacted 
offshore cetacean by the DWH oil spill, suffering an estimated 22 
percent maximum decline in population size (DWH Trustees 2016). 
Although specific projects are not yet identified to implement Bryde's 
whale restoration, we anticipate that they should benefit the 
population, but, considering the species' life history, population 
recovery to pre-spill levels will take decades. More importantly, the 
population estimates considered by the SRT were pre-spill and were 
still found to represent a high extinction risk. Therefore, the 
conservation benefits that may be expected through implementation of 
the PDARP would not be expected to reduce the extinction risk for 
Bryde's whale to a degree where this population qualifies only as 
threatened or where that listing is not warranted.
    We also considered the proposed results from GoMMAPPS and its 
potential to protect and restore the population of GOMx Bryde's whale. 
The purpose of this program is to improve information about abundance, 
distribution, habitat use, and behavior of living marine resources 
(e.g., marine mammals, sea turtles, sea birds) in the Gulf of Mexico, 
as well as to mitigate and monitor potential impacts of human 
activities. GoMMAPPS promotes collaborations via data sharing with 
other research efforts in the Gulf of Mexico, including potentially 
with Mexico. Given the scope of the program, studies are likely to 
increase scientific understanding of the GOMx Bryde's whale and its 
habitat, support management decisions, and monitor potential impacts of 
human activities. GoMMAPPS is likely to provide significantly improved 
information on the status of protected species in the Gulf of Mexico, 
possibly including GOMx Bryde's whales, and we anticipate that this 
information can be used to protect Bryde's whales more effectively in 
the future. However, these conservation benefits will require secondary 
actions that are not currently known. Therefore, we conclude that the 
conservation benefits from GOMAPPS to Bryde's whales are too diffuse 
and uncertain to be considered effective measures under our PECE 
policy. After taking into account these conservation efforts and the 
current status of GOMx Bryde's whale, our evaluation of the section 
4(a)(1) factors is that the conservation efforts identified cannot be 
considered effective measures in reducing the current extinction risk.

Proposed Listing Determination

    Section 4(b)(1) of the ESA requires that we make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account those efforts, if any, being made by any state or 
foreign nation, or political subdivisions thereof, to protect and 
conserve the species. We have reviewed the best available scientific 
and commercial information contained in the Status Review report, the 
Threats Evaluation, Demographic Evaluation, and the ERA (Rosel et al., 
2016). We found that the GOMx Bryde's whale is a species, as defined by 
the ESA, which is in danger of extinction throughout all of its range 
as a result of ESA section 4(a)(1) Factors A, D, and E. After 
considering efforts being made to protect the species, we could not 
conclude that existing or proposed conservation efforts would alter its 
extinction risk. Accordingly, we propose to list the GOMx Bryde's whale 
as an endangered species.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery plans (16 U.S.C. 1533(f)), 
critical habitat designations (16 U.S.C. 1533(a)(3)(A)), Federal agency 
consultation requirements (16 U.S.C. 1536), and protective regulations 
(16 U.S.C. 1533(d)). Recognition of the species' status through listing 
promotes conservation actions by Federal and state agencies, private 
groups, and individuals, as well as the international community. Both a 
recovery program and designation of critical habitat could result from 
this final listing. Given its narrow range in the De Soto Canyon region 
of the northeastern Gulf of Mexico, and existing threats, a regional 
cooperative effort to protect and restore the population is necessary. 
Federal, state, and the private sectors will need to cooperate to 
conserve listed GOMx Bryde's whales and the ecosystem upon which they 
depend.

Marine Mammal Protection Act

    The MMPA provides protections to all marine mammals, such as 
Bryde's whales, whether they are listed under the ESA or not. In 
addition, the MMPA provides heightened protections to marine mammals 
designated as ``depleted.'' 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.

Identifying ESA Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA and joint NMFS/U.S. Fish and Wildlife 
Service regulations require Federal agencies to consult with us on any 
actions they authorize, fund, or carry out if those actions may affect 
the listed species or designated critical habitat. Based on currently 
available information, we can conclude that examples of Federal actions 
that may affect GOMx Bryde's whale include, but are not limited to: 
Authorizations for energy exploration (e.g., habitat modification, 
noise from seismic surveys, and shipping), energy production (e.g., oil 
drilling and production), actions that directly or indirectly introduce 
vessel traffic that could result in collisions, and military activities 
and fisheries regulations that may impact the species.

Take Prohibitions

    Because we are proposing to list this species as endangered, all of 
the take prohibitions of section 9(a)(1) of the ESA would apply. These 
include prohibitions against the import, export, use in foreign 
commerce, or ``take'' of the species. ``Take'' is defined under the ESA 
as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct.'' These 
prohibitions apply to all persons subject to the jurisdiction of the 
United States, including in the United States or on the high seas.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the

[[Page 88655]]

species and (b) that may require special management considerations or 
protection; and (2) specific areas outside the geographical area 
occupied by a species at the time it is listed upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the ESA is no 
longer necessary. Critical habitat may also include areas unoccupied by 
GOMx Bryde's whale if those areas are essential to the conservation of 
the species.
    Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires 
that, to the maximum extent prudent and determinable, critical habitat 
be designated concurrently with the listing of a species. Pursuant to 
50 CFR 424.12(a), designation of critical habitat is not determinable 
when one or both of the following situations exist: (i) Data sufficient 
to perform required analyses are lacking; or (ii) The biological needs 
of the species are not sufficiently well known to identify any area 
that meets the definition of ``critical habitat.'' Although we have 
gathered information through the Status Review report and public 
comment periods on the habitat occupied by this species, we currently 
do not have enough information to determine what physical and 
biological feature(s) within that habitat facilitate the species' life 
history strategy and are thus essential to the conservation of GOMx 
Bryde's whale, and may require special management considerations or 
protection. To the maximum extent prudent and determinable, we will 
publish a proposed designation of critical habitat for GOMx Bryde's 
whale in a separate rule. Designations 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. 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. 
This requirement is in addition to the section 7 requirement that 
Federal agencies ensure that their actions do not jeopardize the 
continued existence of listed species.

Policies on 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 received peer reviews from three independent 
peer reviewers on the Status Review report (Rosel et al., 2016). All 
peer reviewer comments were addressed prior to dissemination of the 
final Status Review report and publication of this final rule. We 
conclude that these experts' reviews satisfy the requirements for 
``adequate [prior] peer review'' contained in the Bulletin (sec. 
II.2.).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate as possible and informed by the best available 
scientific and commercial information. Therefore, we request comments 
or information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. In particular we seeks comments 
containing: (1) Information, including genetic analyses, regarding the 
classification of the GOMx Bryde's whale as a subspecies; (2) life 
history information including abundance, distribution, diving, and 
foraging patterns; (3) information concerning threats to the species; 
(4) efforts being made to protect the species throughout its current 
range; and (5) other pertinent information regarding the species.
    We are also soliciting information on physical or biological 
features and areas that may support designation of critical habitat for 
the GOMx Bryde's whale. Information provided should identify the 
physical and biological features essential to the conservation of the 
species and areas that contain these features. Areas outside the 
occupied geographical area should also be identified if such areas 
themselves are essential to the conservation of the species. Essential 
features may include, but are not limited to, features specific to the 
species' range, habitat, and life history characteristics within the 
following general categories of habitat features: (1) Space for 
individual growth and normal behaviour; (2) food, or other nutritional 
or physiological requirements; (3) protection from predation; (4) sites 
for reproduction and development of offspring; and (5) habitats that 
are protected from natural or human disturbance or are representative 
of the historical, geographical, and ecological distributions of the 
species (50 CFR 424.12(b)). ESA implementing regulations at 50 CFR 
424.12(h) specify that critical habitat shall not be designated within 
foreign countries or in other areas outside of U.S. jurisdiction. 
Therefore, we request information only on potential areas of critical 
habitat within U.S. jurisdiction. For features and areas potentially 
qualifying as critical habitat, we also request information describing: 
(1) Activities or other threats to the essential features or activities 
that could be affected by designating them as critical habitat, and (2) 
the positive and negative economic, national security and other 
relevant impacts, including benefits to the recovery of the species, 
likely to result if these areas are designated as critical habitat.

Public Hearing

    During the public hearing, a brief opening presentation on the 
proposed rule will be provided before accepting public testimony. 
Written comments may be submitted at the hearing or via the Federal e-
Rulemaking Portal (see ADDRESSES) until the scheduled close of the 
comment period on (January 30, 2017). In the event that attendance at 
the public hearing is large, the time allotted for oral statements may 
be limited. There are no limits on the length of written comments 
submitted to us. Oral and written statements receive equal 
consideration.

Public Hearing Schedule

    The date and location for the public hearing is as follows: St. 
Petersburg, Florida: January 19, 2017, from 6:00 p.m. to 8:00 p.m. at 
NOAA Fisheries, Southeast Regional Office, Dolphin Conference Room, 236 
13th Avenue, South, St. Petersburg, Florida 33701.

Special Accommodations

    This hearing is physically accessible to people with disabilities. 
Requests for sign language interpretation or other accommodations 
should be directed to Calusa Horn (see ADDRESSES) as soon as possible, 
but no later than 7 business days prior to the hearing date.

References

    A complete list of the references used in this proposed rule is 
available upon request, and also available at: http://sero.nmfs.noaa.gov/protected_resources/listing_petitions/species_esa_consideration/index.html.

[[Page 88656]]

Classifications

National Environmental Policy Act

    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, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the NEPA (See NOAA 
Administrative Order 216-6A).

Executive Order 12866, Regulatory Flexibility Act and 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 analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, the proposed rule will be provided to the 
relevant agencies in each state in which the subject species occurs, 
and these agencies are invited to comment.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

    Dated: December 2, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 224 as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. 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
2. In Sec.  224.101, in the table in paragraph (h), add an entry for 
``Whale, Bryde's (Gulf of Mexico subspecies)'' under MARINE MAMMALS in 
alphabetical order by common name to read as follows:


Sec.  224.101   Enumeration of endangered marine and anadromous 
species.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Species \1\
-----------------------------------------------------------------------------------     Citation(s) for
                                                             Description of listed          listing            Critical habitat          ESA rules
            Common name                  Scientific name             entity            determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Marine mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Whale, Bryde's (Gulf of Mexico       Balaenoptera edeni      Bryde's whales that    [Federal Register       NA...................  NA
 subspecies).                         (unnamed subspecies).   breed and feed in      citation and date
                                                              the Gulf of Mexico.    when published as a
                                                                                     final rule].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).

[FR Doc. 2016-29412 Filed 12-7-16; 8:45 am]
 BILLING CODE 3510-22-P