[Federal Register Volume 81, Number 245 (Wednesday, December 21, 2016)]
[Rules and Regulations]
[Pages 93639-93641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30483]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2016-0126; FXES11130900000 167 FF09E42000]
RIN 1018-BB80


Endangered and Threatened Wildlife and Plants; Identification of 
14 Distinct Population Segments of the Humpback Whale and Revision of 
Species-Wide Listing

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 
accordance with the Endangered Species Act of 1973, as amended (Act), 
are amending the List of Endangered and Threatened Wildlife (List) by 
removing the current species-level listing of the humpback whale 
(Megaptera novaeangliae), and in its place listing the Cape Verde 
Islands/Northwest Africa, Western North Pacific, Central America, and 
Arabian Sea distinct population segments (DPSs) as endangered and the 
Mexico DPS as threatened. Humpback whales in the remaining DPSs will no 
longer be protected under the Act. This amendment is based on a 
previously published determination by the National Marine Fisheries 
Service (NMFS) of the National Oceanic and Atmospheric Administration, 
Department of Commerce, which has jurisdiction for this species.

DATES: This rule is effective December 21, 2016. Applicability date: 
The revised listings were applicable as of October 11, 2016.

FOR FURTHER INFORMATION CONTACT: Don Morgan, Chief, Branch of Recovery 
and State Grants, U.S. Fish and Wildlife Service, MS-ES, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803; 703-358-2171.

SUPPLEMENTARY INFORMATION: 

Background

    In accordance with the Act (16 U.S.C. 1531 et seq.) and 
Reorganization Plan No. 4 of 1970 (35 FR 15627; October 6, 1970), NMFS 
has jurisdiction over the marine taxa identified in this rule. Under 
section 4(a)(2) of the Act, NMFS must decide whether a species under 
its jurisdiction should be classified as an endangered or threatened 
species. NMFS makes these determinations via its rulemaking process. 
We, the Service, are then responsible for publishing final rules to 
amend the Lists of Endangered and Threatened Wildlife and Plants 
(Lists) in title 50 of the Code of Federal Regulations (CFR) at 50 CFR 
17.11(h) and 17.12(h), respectively.
    Under section 4(a)(2)(A) of the Act, if NMFS determines that a 
species should be listed as endangered or threatened, or that a 
species' status should be changed from threatened to endangered, then 
NMFS is required to inform the Service of the status change. The 
Service is then responsible for implementing the status change by 
publishing a final rule to amend the appropriate List at 50 CFR 
17.11(h) or 17.12(h). Under section 4(a)(2)(B) of the Act, if NMFS 
determines that a species should be removed from the List (delisted), 
or that a species' status should be changed from an endangered to a 
threatened species, then NMFS is required to recommend the status 
change to the Service. If the Service concurs with the recommended 
status change, then the Service will implement the status change by 
publishing a final rule to amend the appropriate List.
    On April 21, 2015, NMFS published a proposed rule (80 FR 22304) to 
remove the species-level listing of the humpback whale (Megaptera 
novaeangliae) from 50 CFR part 224 and in its place list the Cape Verde 
Islands/Northwest Africa and Arabian Sea DPSs as endangered (at 50 CFR 
part 224) and the Western North Pacific and Central America DPSs as 
threatened (at 50 CFR part 223). NMFS solicited public comments on the 
proposed rule for 90 days, ending July 20, 2015. On September 8, 2016, 
NMFS published a final rule (81 FR 62260) to list the Cape Verde 
Islands/Northwest Africa, Western North Pacific, Central America, and 
Arabian Sea DPSs as endangered and the Mexico DPS as threatened. As of 
the effective date of NMFS' rule (October 11, 2016), the humpback 
whales that make up the remaining nine DPSs identified in the rule are 
no longer listed under the Act.

[[Page 93640]]

    The removal of the species-level listing and the listing of the 
five humpback whale DPSs were applicable as of October 11, 2016. In the 
September 8, 2016, final rule (81 FR 62260), NMFS addressed all public 
comments received in response to the proposed rule. NMFS reconsidered 
its proposals with regard to the Western North Pacific, Mexico, and 
Central America DPSs, listing the Western North Pacific and Central 
America DPSs as endangered instead of threatened as proposed and 
listing the Mexico DPS as threatened instead of not listing it.
    For the Western North Pacific DPS, NMFS considered the relatively 
low, slightly revised abundance estimate (1,059 instead of 1,100); the 
moderate reduction of its population size or growth rate likely from 
energy development, competition with fisheries, whaling, and vessel 
collisions; the serious reduction of its population size or growth rate 
likely from fishing gear entanglements; and the considerable 
uncertainty reflected in the distribution of Biological Review Team 
(BRT) votes in assigning extinction risk categories.
    For the Mexico DPS, NMFS considered the revised abundance estimate 
that is significantly lower than previously thought (3,264 instead of 
6,000-7,000) and the presence of the known fishing gear entanglement 
threat of moderate intensity.
    For the Central America DPS, NMFS considered the original low 
abundance estimate of 500-600 (which was at the dividing line between 
BRT risk categories) and the more recently updated estimate of 411 
(which is below the BRT's threshold of 500 between ``high risk of 
extinction'' and ``moderate risk of extinction''), the fact that the 
moderate threats of vessel collisions and fishing gear entanglement 
continue to act upon a population that is so small, and the 
considerable uncertainty reflected in the distribution of BRT votes for 
different extinction risk categories.
    As discussed under the Status Review section of NMFS' final rule 
(see 81 FR 62261-62262; September 8, 2016), the BRT considered 
abundance and trend information carefully in evaluating extinction 
risk, but abundance was not the sole criterion for evaluating 
extinction risk. The thresholds described by the BRT were only general 
guidelines, and NMFS was required to consider them in light of the 
considerations just outlined. Under these circumstances, for these 
particular DPSs, the extinction risk is compounded by the lack of 
information on the population abundance trends. NMFS concluded that the 
Western North Pacific and Central America DPSs are in danger of 
extinction throughout their ranges and the Mexico DPS is likely to 
become endangered throughout its range within the foreseeable future.
    Because humpback whales that make up some of the identified DPSs of 
humpback whale will no longer be protected under the Act and whales in 
one DPS are considered threatened rather than endangered, both section 
4(a)(2)(A) and section 4(a)(2)(B) of the Act apply to our 
responsibility to implement the status changes by publishing a final 
rule to amend the List at 50 CFR 17.11(h).
    In a September 6, 2016, memorandum (Memorandum from Gary Frazer to 
Donna Wieting, September 6, 2016), per section 4(a)(2)(B), we concur 
with NMFS's recommendation that humpback whales in nine DPSs are no 
longer endangered or threatened species and that whales in the Mexico 
DPS are now a threatened species rather than an endangered species. By 
publishing this final rule, we are taking the necessary administrative 
step to codify these changes in the List at 50 CFR 17.11(h).

Administrative Procedure Act

    Because NMFS provided a public comment period on the proposed rule 
for the humpback whale, and we concur with NMFS' actions, we find good 
cause that the notice and public comment procedures of 5 U.S.C. 553(b) 
are unnecessary for this action. We also find good cause under 5 U.S.C. 
553(d)(3) to make this rule effective immediately. The NMFS rule (81 FR 
62260; September 8, 2016) revised the listing status of the humpback 
whale, extending protection under the Act to five DPSs and listing them 
at 50 CFR parts 223 and 224; this rule is an administrative action to 
add those DPSs to the List at 50 CFR 17.11(h). The public would not be 
served by delaying the effective date of this rulemaking action.

Required Determinations

National Environmental Policy Act

    We have determined that an environmental assessment, as defined 
under the authority of the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), need not be prepared in connection with 
regulations adopted pursuant to section 4(a) of the Act. We outlined 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11(h), the List of Endangered and Threatened 
Wildlife, under MAMMALS, by:
0
a. Removing the entry for ``Whale, humpback''; and
0
b. Adding entries, in alphabetical order, for ``Whale, humpback 
[Arabian Sea DPS]''; ``Whale, humpback [Cape Verde Islands/Northwest 
Africa DPS]''; ``Whale, humpback [Central America DPS]''; ``Whale, 
humpback [Mexico DPS]''; and ``Whale, humpback [Western North Pacific 
DPS]'', to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

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                                                                                          Listing citations and
           Common name                Scientific name        Where listed      Status       applicable rules
----------------------------------------------------------------------------------------------------------------
Whale, humpback [Arabian Sea DPS]  Megaptera             Arabian Sea DPS--          E   35 FR 8491; 6/2/1970, 35
                                    novaeangliae.         see 50 CFR 224.101.            FR 18319; 12/2/1970, 81
                                                                                         FR 62260; 9/8/2016\N\,
                                                                                         81 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 12/21/
                                                                                         2016.
Whale, humpback [Cape Verde        Megaptera             Cape Verde Islands/        E   35 FR 8491; 6/0/1970, 35
 Islands/Northwest Africa DPS].     novaeangliae.         Northwest Africa               FR 18319; 12/2/1970, 81
                                                          DPS--see 50 CFR                FR 62260; 9/8/2016\N\,
                                                          224.101.                       81 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 12/21/
                                                                                         2016.

[[Page 93641]]

 
Whale, humpback [Central America   Megaptera             Central America            E   35 FR 8491; 6/2/1970, 35
 DPS].                              novaeangliae.         DPS--see 50 CFR                FR 18319; 12/2/1970, 81
                                                          224.101.                       FR 62260; 9/8/2016\N\,
                                                                                         81 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 12/21/
                                                                                         2016.
Whale, humpback [Mexico DPS].....  Megaptera             Mexico DPS--see 50         T   35 FR 8491; 6/2/1970, 35
                                    novaeangliae.         CFR 223.102.                   FR 18319; 12/2/1970, 81
                                                                                         FR 62260; 9/8/2016\N\,
                                                                                         81 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 12/21/
                                                                                         2016,
                                                                                        50 CFR 223.213
                                                                                        50 CFR 223.214.
Whale, humpback [Western North     Megaptera             Western North              E   35 FR 8491; 6/2/1970, 35
 Pacific DPS].                      novaeangliae.         Pacific DPS--see               FR 18319; 12/2/1970, 81
                                                          50 CFR 224.101.                FR 62260; 9/8/2016\N\,
                                                                                         81 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 12/21/
                                                                                         2016,
                                                                                        50 CFR 224.103.
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    Dated: December 5, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-30483 Filed 12-20-16; 8:45 am]
BILLING CODE 4333-15-P