[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11208-11226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02966]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 240208-0042; RTID 0648-XR071]
Endangered and Threatened Wildlife and Plants: Listing the Queen
Conch as Threatened Under the Endangered Species Act (ESA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, are listing the queen conch (Aliger gigas, formerly
known as Strombus gigas) as a threatened species under the Endangered
Species Act (ESA). We have completed a review of the status of queen
conch, including efforts being made to protect the species, and
considered public comments submitted on the proposed listing rule as
well as new information received since the publication of the proposed
rule. Based on all of this information, we have determined that the
queen conch is not currently in danger of extinction throughout all or
a significant portion of its range, but is likely to become so within
the foreseeable future. Thus, we are listing the queen conch as a
threatened species under the ESA. At this time, we conclude that
critical habitat is not yet determinable because data sufficient to
perform the required analysis are lacking; any critical habitat
designation would be proposed in a separate, future rulemaking.
DATES: This final rule is effective on March 15, 2024.
ADDRESSES: Public comments that were submitted on the proposed rule to
list queen conch are available at https://www.regulations.gov
identified by docket number NOAA-NMFS-2019-0141. A list of references
cited in this final rule and other supporting materials are available
at: https://www.fisheries.noaa.gov/species/queen-conch, or by
submitting a request to the National Marine Fisheries Service,
Southeast Regional Office, Protected Resources Division, 263 13th
Avenue South, St. Petersburg, Florida 33701. Information relevant to
inform separate rulemakings to designate critical habitat for queen
conch or issue protective regulations for queen conch may be submitted
to this mailing address or to the email address indicated below (see
FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Orian Tzadik, NMFS Southeast Regional
Office, (813) 906-0353-C; or [email protected].
SUPPLEMENTARY INFORMATION:
Background
On February 27, 2012, we received a petition from WildEarth
Guardians to list the queen conch as threatened or endangered
throughout all or a significant portion of its range under the ESA. We
determined that the petitioned action may be warranted and published a
positive 90-day finding in the Federal
[[Page 11209]]
Register (77 FR 51763, August 27, 2012). After conducting a status
review, we determined that listing queen conch as threatened or
endangered under the ESA was not warranted and published our
determination in the Federal Register (79 FR 65628, November 5, 2014).
In making that determination, we first concluded that queen conch was
not presently in danger of extinction, nor was it likely to become so
in the foreseeable future. We also evaluated whether the species
warranted listing based on its status in a ``significant portion of its
range'' by applying the joint U.S. Fish and Wildlife Service (USFWS)
and NMFS Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' (SPR Policy; 79 FR 37580, July 1, 2014). We concluded
that available information did not indicate any ``portion's
contribution to the viability of the species is so important that,
without the members in that portion, the species would be in danger of
extinction, or likely to become so in the foreseeable future,
throughout all of its range.'' Therefore, we concluded that the species
did not warrant listing based on its status in a significant portion of
its range.
On July 27, 2016, WildEarth Guardians and Friends of Animals filed
suit in the U.S. District Court for the District of Columbia,
challenging our decision not to list queen conch as threatened or
endangered under the ESA. On August 26, 2019, the Court vacated our
determination that listing queen conch under the ESA was not warranted
and remanded the determination back to the NMFS based on our reliance
on the SPR Policy's particular threshold for defining ``significant,''
which was vacated nationwide in 2018 (though other aspects of the
policy remain in effect). See Desert Survivors v. U.S. Dep't of
Interior, 321 F. Supp. 3d 1011 (N.D. Cal. 2018).
On December 6, 2019, we announced the initiation of a new status
review of queen conch and requested scientific and commercial
information from the public (84 FR 66885, December 6, 2019). We also
provided notice and requested information from jurisdictions through
the Western Central Atlantic Fishery Commission (WECAFC), Caribbean
Regional Fisheries Mechanism (CRFM), and the Convention on the
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) Authorities. We received 12 public comments in response to this
request.
In May 2022, we completed a status review that considered all
relevant new information regarding the status of the species. The
status review report incorporated information received in response to
our request for information (84 FR 66885, December 6, 2019), and was
peer reviewed by three independent specialists selected from the
scientific community with expertise in queen conch biology and ecology,
conservation and management, and specific knowledge of threats to queen
conch. Peer reviewer comments were addressed and incorporated, as
appropriate, prior to dissemination of the final status review report
(Horn et al. 2022).
On September 8, 2022, we published a proposed rule to list the
queen conch as threatened (87 FR 55200, September 8, 2022). We
solicited comments on our proposed rule from the public for 95 days (87
FR 55200, September 8, 2022; 87 FR 67853, November 11, 2022) and held a
virtual public hearing on November 21, 2022 (87 FR 67853, November 11,
2022), at which time we also accepted public comments. We are basing
our listing determination on information in the status review report,
information received from the public, and additional materials cited in
this final rule, which comprise the best available scientific and
commercial information.
Listing Determinations Under the ESA
We are responsible for determining whether the queen conch 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 ``any subspecies of fish or
wildlife or plants, and any distinct population segment of any species
of vertebrate fish or wildlife which interbreeds when mature.'' Because
the queen conch is an invertebrate, we do not have the authority to
list individual populations as distinct population segments.
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, in the
context of the ESA, we interpret an ``endangered species'' to be one
that is presently at risk 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 now (endangered)
or in the foreseeable future (threatened). Additionally, as the
definition of ``endangered species'' and ``threatened species'' makes
clear, the determination of extinction risk can be based on either the
range-wide status of the species, or the status of the species in a
``significant portion of its range.'' A species may be endangered or
threatened throughout all of its range or a species may be endangered
or threatened within a significant portion of its range (SPR).
Section 4(a)(1) of the ESA requires us to determine whether any
species is endangered or threatened as a result of 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 (16 U.S.C. 1533(a)(1)(A)-(E)). We considered the
nature of the threats and the species' response to those threats. We
also considered each threat identified, both individually and
cumulatively. Once we evaluated the threats, we assessed the efforts
being made to protect the species to determine if these conservation
efforts were adequate to mitigate the existing threats and alter
extinction risk. Finally, we considered the public comments and
additional information received in response to the proposed rule. In
making this finding, we have relied on the best scientific and
commercial data available.
Public Comments and Our Responses
We requested comments on the proposed rule to list the queen conch
as threatened during a 60-day comment period. In response to requests
for a public hearing, we re-opened the public comment period for an
additional 35 days (87 FR 67853, November 10, 2022) and held a virtual
public hearing on November 21, 2022 (87 FR 67853, November 10, 2022).
Public comments were accepted via standard mail, at the public
hearing, and through the Federal eRulemaking portal. To facilitate
access to the proposed rule, we provided English, Spanish, French,
Dutch, and Creole versions of the proposed rule, as well as English and
Spanish versions of Frequently Asked
[[Page 11210]]
Questions on our website in advance of the public hearing. All
individuals who requested a public hearing along with representatives
from over 30 state, Federal, and international organizations were
contacted to provide direct notification of the public hearing. We also
directly contacted and solicited comments from a variety of stakeholder
groups and fisheries management organizations through avenues such as
the CITES, WECAFC, CRFM, the Caribbean Fishery Management Council
(CFMC), the United States State Department, the United States Congress,
State/Territorial partners, over 6,000 subscribers to our Fishery
Bulletin, and others.
The virtual public hearing included live Spanish-language
interpretation services and closed captioning translation options for
English, French, German, Spanish, and Italian. A total of 137 people
attended the virtual public hearing, 10 of whom provided oral public
comment. Overall, we received 154 public comments on the proposed rule
and supporting documents. Of these public comments, 56 opposed the
listing, with 44 providing new information that informed our final
determination. We received five comments that were neither supportive
nor unsupportive of the listing determination, but provided additional
data that were not included in the status review report or the proposed
rule. The remaining 93 comments agreed with our proposed determination;
many of these supportive comments presented general information on
threats and provided supplementary data that were already considered or
cited, and consequently discussed in the proposed rule. Of the comments
that were supportive of the listing, 50 provided documentation, such as
data or work cited, that reinforced the demographic factors and threats
identified in the proposed rule, including population declines, smaller
maturation sizes, degraded habitats, declining population connectivity,
and declining fecundity estimates.
The comments we received concerning critical habitat and protective
regulations were not directly related to this action. However, such
comments will be considered and addressed during subsequent rulemakings
on critical habitat and protective regulations under section 4(d) of
the ESA. Due to the direct threat of overutilization throughout the
range of queen conch, we intend to promulgate protective regulations
pursuant to section 4(d) for queen conch in a future rulemaking. We
solicit further public comment to inform future rulemakings on critical
habitat and development of protective regulations for the queen conch
(see ADDRESSES below). All relevant public comments on the proposed
rule to list queen conch are addressed in the following summary below.
We have categorized comments by topic. Where appropriate, we have
combined similar comments from multiple groups or members of the public
and addressed them together.
Comments on Available Data, Trends, and Analyses
Comment 1: Several commenters provided new, peer-reviewed or
agency-produced empirical data on queen conch abundance, density, and
landings that were not included in the status review report (Horn et
al. 2022). New data were provided for the following jurisdictions:
Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, Puerto
Rico, San Andres Islands in Colombia, St. Vincent and the Grenadines,
and the U.S. Virgin Islands. Some commenters suggested that the data
provided were indicative of healthier queen conch populations in their
particular jurisdiction than indicated by the status review report.
Response: We thank these commenters for the submission of
additional data to inform status of the species and this final rule.
The new abundance and adult density estimates provided by commenters
for Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, San
Andres Islands in Colombia, St. Vincent and the Grenadines, and the
U.S. Virgin Islands are within the range of previously reported
abundance and adult density estimates summarized in the status review
report for those jurisdictions (see figure 7 in Horn et al. 2022). The
new data provided for Florida were highly variable but indicated that
high densities of individuals occur in specific locations at different
times and that seasonal shifts in adult densities may be occurring
(Delgado and Glazer 2020). Overall, these data were still within the
adult density estimates that were presented in the status review report
for Florida. Similarly, the new commercial landings data provided by
Belize and the new commercial export data provided by St. Vincent and
the Grenadines were not substantially different from the data
considered in the status review report as the values were within the
range previously considered (see figure 16 in Horn et al. 2022).
Therefore, although we considered these additional data sources, these
data did not alter the previous conclusions presented in the status
review report or the decision to list this species as threatened.
The new density estimates provided for Puerto Rico were derived
from Cruz-Marrero et al. (2020), who used video sled sampling to
estimate conch population densities in Southwestern Puerto Rico. Cruz-
Marrero et al.'s (2020) estimates of adult densities are higher than
those considered in the status review report for Puerto Rico; however,
the methodology used to generate these estimates did not include visual
inspection to distinguish between live conch and empty shells,
potentially leading to overestimation of density, particularly in
heavily fished areas where shells are discarded. We determined the
video sled sampling method requires additional calibration and
validation prior to its inclusion in our analyses.
Therefore, we conclude the Cruz-Marrero et al. (2020) publication
does not represent the best scientific and commercial data available
due to concerns with the methodology used to estimate conch population
densities in Southwestern Puerto Rico.
Comment 2: Many commenters, including commercial fishers and local
scientists, stated that local stakeholder knowledge should have been
solicited prior to the publication of the proposed rule.
Response: We announced the initiation of a status review for queen
conch in the Federal Register (84 FR 66885, December 6, 2019). At that
time, we asked the public to provide information on the queen conch
that would inform our status review and opened a 60-day public comment
period. We also directly contacted and solicited comments from a
variety of stakeholder groups and fisheries management organizations
through avenues such as the CITES, WECAFC, CRFM, CFMC, the United
States State Department, State/Territorial partners, and others. The
CFMC further solicited comments from stakeholders via written comments,
District Advisory Panel (DAP) meetings, and oral comments. Comments
were initially solicited at the CFMC meeting in December 2019. NMFS
staff attended the WECAFC meeting in Puerto Rico in December 2019 to
notify members of the opportunity for public comment to inform the
status review. General updates on the queen conch status review were
provided during the CFMC's regular meetings held in June, August,
September, and December of 2020; April, July, August, and December of
2021; February, April, and August of 2022. General updates on the
status of the queen conch rulemaking were provided during the CFMC's
regular meetings held in December of 2022; and
[[Page 11211]]
April, August, and December of 2023. We also directly contacted and
solicited information from numerous scientific experts on conch
fisheries biology. All information received, including 12 formal public
comments, was considered, and relevant information was incorporated
into the status review report and the proposed rule.
Comment 3: Several commenters provided anecdotal observations of
queen conch densities and one fisher provided underwater videos in
Puerto Rico, suggesting that these observations were indicative of
healthier queen conch populations in their jurisdictions than indicated
by the status review report.
Response: We thank these commenters for submitting their videos and
sharing their knowledge of the queen conch population in their
particular jurisdictions. While these data are indeed encouraging, they
remain difficult to incorporate into the status review report as they
cannot be readily converted into estimates of population densities. We
acknowledge that the available density data can be difficult to
interpret for several reasons, including the fact that survey methods
varied, surveys were lacking from many areas and, in some cases,
surveys were decades old. In addition, the connectivity modeling
scenario provided density estimates that represent jurisdiction-wide
medians, and the status review team (SRT) acknowledges that conch are
not distributed evenly across space. Even in jurisdictions with very
low densities, there likely exist some areas above the critical density
threshold where reproduction continues to take place (Horn et al.
2022). However, cross-shelf surveys likely generate the most reliable
estimates of overall queen conch populations, and cross-shelf surveys
are a widely used monitoring method for queen conch stocks (Vaz et al.
2022). By contrast, the videos and observations provided are limited in
their spatial inference because they represent a relatively small
fraction of the overall range of the species. As described in the
proposed rule, there is a clear need to improve data collection on this
species throughout its range, and NMFS looks forward to working with
all stakeholders to improve and standardize data collection to promote
the recovery of the species.
Comment 4: We received several comments requesting that NMFS
acquire new, additional, or better data prior to making a listing
determination. These commenters suggested that the available data and
scientific studies do not provide sufficient evidence to support
listing queen conch as a threatened species under the ESA.
Response: As stated above, and as described in the proposed rule,
NMFS acknowledges the need for further research and additional and
uniform data. However, we disagree with the commenters' assertion that
the best scientific studies available do not provide sufficient
evidence to support our listing determination. As detailed in the
Listing Determinations under the ESA section above, we evaluated all
five factors under section 4(a)(1) of the ESA and concluded the best
scientific and commercial data available indicate that, while the queen
conch is not currently in danger of extinction, it will likely become
so in the foreseeable future, therefore warranting listing as a
threatened species under the ESA. In the proposed rule, we concluded
that the species does not currently have a high risk of extinction due
to the following: the species has a broad distribution and still occurs
throughout its geographic range and is not confined or limited to a
small geographic area; the species does not appear to have been
extirpated from any jurisdiction and can still be found, albeit at low
densities in most cases, throughout its geographic range; and there are
several jurisdictions that have queen conch populations that are
currently disproportionately contributing to the viability of the
species, such that the species is not presently at risk of extinction.
There are 9 jurisdictions that are estimated to have adult queen conch
densities greater than 100 conch/ha, and together these 9 jurisdictions
comprise about 61 percent of the estimated queen conch habitat. Several
of these locations have high connectivity values (see figure 13 in Horn
et al. 2022), indicating that these areas facilitate the flow of queen
conch larvae, allowing for some exchange of larvae and maintenance of
some genetic diversity.
In addition, we note that the ESA requires that we base our listing
determinations on the best scientific and commercial data available (16
U.S.C. 1533(b)(1)(A) and does not require, nor necessarily allow time
for, additional studies to gather more data. Am. Wildlands v.
Kempthorne, 530 F.3d 991, 998 (D.C. Cir. 2008) (finding that the ``best
available data'' requirement in section 1533(b)(1)(A) requires not only
that data be attainable, but that researchers in fact have conducted
the tests); Southwest Ctr. for Biological Diversity v. Babbitt, 215
F.3d 58, 60 (D.C. Cir. 2000) (``The `best available data' requirement
makes it clear that the Secretary has no obligation to conduct
independent studies.''); see also, Oceana, Inc. v. Ross, 321 F. Supp.
3d 128, 142 (D.D.C. 2018) (interpreting analogous language in section
1536(a)(2)) (citations omitted); San Luis & Delta-Mendota Water Auth.
v. Locke, 776 F.3d 971, 995 (9th Cir. 2014) (holding that the best
available science standard ``does not require an agency to conduct new
tests or make decisions on data that does not yet exist.''). The ESA's
emphasis on the best available information thus requires us to make
listing determinations based upon what is sometimes incomplete
information. Provided that the best available information is sufficient
to enable us to make a determination as required under the ESA, as is
the case here, we must rely on it even though there is some degree of
imperfection or uncertainty. Defenders of Wildlife v. Babbitt, 958 F.
Supp. 670, 679-81 (D.D.C. 1997) (explaining that courts have
consistently held that the statutory standard requiring that listing
decisions be made on the ``best scientific and commercial data
available,'' is less stringent than a standard requiring ``conclusive
evidence'' or ``absolute scientific certainty'').
Comment 5: Several commenters questioned what data were used to
make the final listing determination. Specifically, commenters from
Puerto Rico, U.S. Virgin Islands, and Nicaragua asked about the recency
of the landings and adult density data and what studies had been used
to make the listing determination.
Response: The data and research used to inform our listing decision
were published online concurrently with the proposed rule and are
summarized in the status review report (Horn et al. 2022). This report
considered all relevant published and grey literature, databases, and
reports, as well as any relevant information provided during the public
comment period from our previous notice of initiation of a status
review (84 FR 66885, December 6, 2019). The status review evaluated
data from 47 countries and territories (e.g., management
jurisdictions), assimilating approximately 360 references. The status
review considered the scientific literature to determine density
thresholds for reproductive viability, then evaluated these thresholds
by jurisdiction using the best scientific information available for
density surveys from 2012-2020. Similarly, the status review considered
fisheries landings data (1950-2018) from the Food and Agriculture
Organization and reconstructed landing histories (1950-2016) from the
Sea Around Us (SAU) project. It considered results from recent genetic
structure studies (e.g., Truelove
[[Page 11212]]
et al. 2017) and published results from simulations identifying
limiting factors for conch reproductive dynamics (Farmer & Doerr 2022).
It evaluated a novel hydrodynamic modeling approach to connectivity
which provided insight into how exchange of larvae across the
population range has been dramatically interrupted by overexploitation
relative to virgin stock patterns (Vaz et al. 2022). The status review
team organized this information and data by jurisdiction and searched
systematically for information regarding conch densities, landings, and
population trends. Additionally, the team systematically evaluated the
threats to conch across management jurisdictions, including
overutilization, inadequacy of regulations and enforcement, and climate
change.
Upon its publication in May 2022, the status review report (Horn et
al. 2022) provided a complete list of citations used as well as five
supplemental files, including the most recently available fisheries
data by jurisdiction, Food and Agriculture Organization (FAO) landings
data, and population density estimates. This information is all
publically available on our website. The landings data alluded to by
commenters were included through 2018 (see figures 15, 16, 17, 19, and
20 in Horn et al. 2022), and all known fishery independent surveys were
considered as well (see table 1 in Horn et al. 2022). Specific analyses
regarding conch population connectivity and reproductive dynamics
within the status review were also published in peer reviewed
scientific journals (Vaz et al. 2022; Farmer and Doerr 2022).
Comment 6: Several commenters cited the presence of queen conch
populations in deep-water habitats that act as refuges due to their
inaccessibility to fishing. In particular, commenters from Belize,
Jamaica, Puerto Rico, and Florida cited local ecological knowledge to
support the presence of deep water populations within their
jurisdictions. Other commenters suggested that deep water populations
exist throughout the range of the species and that these deep-water
populations regularly supply recruits to the shallow water populations,
which are subject to fishing. The commenters suggest that the presence
of these deep water populations negate the need for listing the species
under the ESA, as the populations will always replenish themselves.
Response: The population dynamics of deep-water queen conch
populations were evaluated and considered in the status review report.
All published findings on deep-water populations were reported,
including documentation of active fishing and depletion of some of
these deep-water populations, such as those at Glover's atoll in Belize
(Horn et al. 2022). The status review assessed all known deep-water
populations, including several in the jurisdictions of The Bahamas,
Belize, Florida, Jamaica, Puerto Rico, and St. Croix, and also
considered other factors such as prevailing currents, and physical
recruitment dynamics that can influence population connectivity (Horn
et al. 2022). The commenters did not provide any new scientific
information to support claims of deep-water populations beyond what was
already considered in the status review, and we are unable to determine
the direct contribution of additional populations to local queen conch
populations without further research. The current state of research on
deep water populations remains limited due to two major factors. The
first is that in most locations, the deep water habitats do not seem to
be the primary habitat for queen conch, and population densities are
therefore limited. The second is that these populations occur at depths
below safe recreational diving limits, therefore necessitating
specialized technical training and equipment to access them. We agree
with the commenters that there is a need to improve our understanding
of the deep-water populations, and we look forward to working with
stakeholders on this endeavor as we work to promote the recovery of the
species.
Comment 7: One commenter stated that the proposed listing
determination arbitrarily relied on reproductive capacity and total
population to support its conclusions instead of density and adequacy
of regulations, which the commenter asserted should be the driving
metrics for the listing determination.
Response: We appropriately considered all relevant biological data
when assessing extinction risk for those portions that warranted
further investigation based on the initial assessment tool. Biological
factors considered, such as reproductive capacity and productivity at
viable spawning areas (e.g., areas with sufficient adult density and
total population), are directly relevant to assessing status of the
species now and in the foreseeable future. We cannot ignore such
factors and focus exclusively on the factors the commenter prefers.
Comment 8: One commenter stated we had erred by not having the SRT
review the various spatial scales considered in the SPR analysis.
Another commenter claimed that NMFS erred by not having the SRT review
the eco-regional and macro-regional spatial scale approaches to
evaluating SPR.
Response: We disagree. Our analysis of whether queen conch is
endangered within a significant portion of its range was informed by
the SRT's work, and we applied extensions of the SRT's population-scale
approach to our SPR analysis. Specifically, we followed the SRT's
approach, by applying the same quantitative assessment tool to screen
for ``potentially high risk'' and ``potentially significant'' portions
of the range. Furthermore, nothing in the ESA or our regulations
requires that the SRT review the agency's listing decision, including
its evaluation of potential SPRs.
Comment 9: One commenter stated that NMFS should list the queen
conch as endangered in a significant portion of its range, asserting
that the SPR analysis in the proposed rule was flawed because it
arbitrarily divided the range of the queen conch instead of considering
those portions where the species is in danger of extinction, and that
the determination is contrary to the best available science because the
queen conch is endangered in a significant portion of its range. The
commenter concluded that our SPR analysis should have evaluated the
total portion of the species' range where the species is below the
critical density and in danger of extinction. The commenter asserted
this ``portion'' is a significant portion of the range in which the
species is endangered.
Response: We conducted a thorough and conservative screening of
portions of the range as described in the proposed rule, assessing 50
different portions at 3 different geographic scales. Also as explained
above, portions of the range below the critical density are not
necessarily ``in danger of extinction.'' While we find that our
previous analysis was adequate, we undertook the additional analysis
sought by the commenter.
As suggested by the commenter, we identified 11 management
jurisdictions with empirical measurements of adult conch densities
(e.g., not borrowed from nearest neighbor estimates of density) that
were below ``critical density'' (i.e., Anguilla, Antigua and Barbuda,
Aruba, Bonaire, Dominican Republic, Guadeloupe, Haiti, Martinique,
Panama, St. Vincent and Grenadines, and Venezuela). We further
evaluated this portion of the species' range, comprised of these 11
jurisdictions, to determine whether this portion was, in our
assessment, at a ``high risk'' of extinction and ``significant.''
Because
[[Page 11213]]
both of these conditions must be met, regardless of which question is
addressed first, if a negative answer is reached with respect to the
first question addressed, the other question does not need to be
evaluated for that portion of the species' range. As with our SPR
analysis in the proposed rule, we elected to address the ``high risk''
of extinction question first. The members of the species within the
portion may be at ``high risk'' of extinction if the members are at or
near a level of abundance, productivity, spatial structure, or
diversity that places the members' continued persistence in question.
Similarly, the members of the species within the portion may be at
``high risk'' of extinction if the members face clear and present
threats (e.g., confinement to a small geographic area; imminent
destruction, modification, or curtailment of habitat; or disease
epidemic) that are likely to create imminent and substantial
demographic risks.
In evaluating whether this portion of the species' range is at high
risk of extinction, we considered the portion's abundance,
productivity, spatial structure, and diversity. Although the portion
contains only 1 percent of the contemporary abundance for the species,
that 1 percent represents nearly 7 million adult conch. Generally
speaking, low abundance places a population at greater risk for
perturbation or genetic bottlenecks; however, this portion is broadly
distributed geographically, which provides a significant buffer against
these threats. Although this portion comprises only 12 percent of the
total available habitat for queen conch, it contains an estimated 8,753
km\2\ of available habitat. The portion is also protected against
genetic bottlenecks because although it contains 11 important
connectivity nodes for the species throughout its range, 13 additional
important connectivity nodes outside the portion supply areas within
the portion with larvae (Vaz et al. 2022). For example, within the
portion, Panama receives most of its conch larvae from Costa Rica. The
Dominican Republic receives larvae from Puerto Rico, Cuba, Turks and
Caicos, and possibly Saint Lucia. Haiti has limited connectivity with
neighboring islands, but may receive some limited input from Jamaica
and Cuba. Anguilla presently receives larvae from multiple Leeward
Islands. In Venezuela, Martinique, Bonaire, and Guadeloupe, conch
reproduction is thought to be nominal, and most upstream supply would
originate from Saint Lucia. For the management jurisdictions of Aruba,
St. Vincent and Grenadines, Antigua and Barbuda, contemporary
reproductive output is thought to be nominal, with a small likelihood
of receiving larval supply from other locations.
Although this portion has limited abundance and productivity is
constrained by likely reproductive failures due to low adult densities
leading to depensatory effects, the portion is distributed over a broad
geographic area (i.e., the Caribbean basin) and is not subject to
disease or disproportionate habitat destruction relative to the species
across its range. The spatial structure of the portion and diversity of
the portion are partially protected by the remaining reproductively
viable populations and connectivity nodes that exist outside the
portion. We estimate 685 million adult conch in habitats with
reproductively viable densities outside of this portion. A single
female conch lays between 7-14 egg masses containing between 500,000-
750,000 eggs during a single spawning season (Appeldoorn 2020).
Assuming a 1:1 sex ratio, we estimate that the 342 million females in
viable aggregation densities could produce up to 3,591 trillion eggs in
a single spawning season. Our connectivity modeling suggests that a
reasonable number of these eggs might successfully recruit to this
portion during a given spawning season. Owing to the prolific
reproductive output of viable conch spawning aggregations and the
overall connectivity remaining within the system, including
connectivity to this portion, we determine that, within this portion,
queen conch is not currently in danger of extinction, but is likely to
become so within the foreseeable future. This finding is consistent
with the species' range wide determination, that queen conch is not
currently in danger of extinction, but is likely to become so within
the foreseeable future.
Comment 10: Several commenters noted that the adult densities
described in the status review report as thresholds for reproduction of
individual populations were evaluated against cross-shelf population
densities instead of against spawning aggregation densities. These
thresholds were therefore overly conservative estimates when discussing
the likelihood of extinction because the aggregation-densities are far
greater than cross-shelf densities due to the nature of the queen conch
spawning aggregation strategies.
Response: As described in the status review report and proposed
rule, the absence of reproduction in low density populations is
primarily attributed to a low encounter rate and can contribute to
Allee effects and localized extirpation due to reproductive failure.
The cross-shelf density threshold of 50 adult conch/hectare is
generally accepted as a minimum to achieve some level of reproductive
success (Appeldoorn 1995; Gascoigne and Lipcius 2004; Stephens et al.
1999; Stoner and Ray-Culp 2000). While we acknowledge that many minimum
density estimates have been suggested in the literature, the threshold
of 50 adult conch per hectare is lower than most recommended
thresholds. For example, CITES initially proposed a minimum threshold
of 56 adult conch per hectare but then revised their threshold to 100
adults per hectare after further deliberation (Van Eijs 2014). An
equivalent threshold of 100 adult conch per hectare has been proposed
by the WECAFC queen conch working group and consequently adopted by the
United Nations Environment Programme (UNEP 2012). The reference point
used in the proposed rule is derived from cross shelf data from
unfished areas in The Bahamas that show that mating and spawning
plateau at approximately 100 adult queen conch per hectare (Stoner and
Ray-Culp 2000; Stoner et al. 2012b). As discussed in the status review
report (Horn et al. 2022), we agree that density thresholds may vary
over both spatial scale and by location, as other studies have
demonstrated higher thresholds needed to ensure reproductive success.
For example, Delgado and Glazer (2020) identified a within-aggregation
minimum of 204 adult conch/hectare.
The SRT conducted a comprehensive review of the best scientific and
commercial information available, with the goal of compiling robust,
cross-shelf adult conch density estimates for each jurisdiction. To the
extent possible, the SRT focused on the most recent studies where
randomized sampling was conducted across broad areas of the shelf,
including a range of habitats and depths (see table 2 and file S5 in
Horn et al. 2022). Given differences in survey methodologies and
uncertainties in the reproductive threshold, the SRT evaluated current
and temporal trends in likely reproductive status by jurisdictions
under three categories: (1) densities greater than 100 adult conch/ha,
a density considered to support reproductive activity and population
growth (UNEP 2012); (2) densities of 50-99.9 adult conch/ha, a density
associated with reduced reproduction (Appeldoorn 1988c; Stoner and Ray-
Culp 2000); and (3) densities below 50 adult conch/ha, densities
associated with likely Allee effects and limited viable reproduction
(Stoner and Ray-
[[Page 11214]]
Culp 2000; Stoner et al. 2012b; UNEP 2012). The SRT considered these
uncertainties in their Extinction Risk Analysis, and we considered them
in the development of our proposed rule.
We acknowledge that the thresholds considered by the SRT and
discussed in the proposed rule (<50 adult conch/ha, 50-99.9 adult
conch/ha, and <100 adult conch/ha) may differ from thresholds
identified by other regulatory agencies, regional working groups, or
national-level policies for some countries within the range of the
species. However, we relied on the best available scientific and
commercial information, as described within the status review report,
to identify appropriate thresholds and to interpret published density
estimates relative to those thresholds, while accounting for
differences in survey methodologies (see ``Density Estimates'' section
in Horn et al. 2022). The commenters did not identify any
scientifically-supported alternative estimates or thresholds. The
commenters did not provide information on which to base a change to the
adult density estimate we used in our analysis, other than they believe
the 50 adult conch/ha threshold is overly conservative for assessing
the likelihood of extinction of the species. We acknowledge that
substantial variability in the collection of conch density estimates by
different researchers in different jurisdictions through time has led
to challenges in identifying reproductive thresholds and making
appropriate comparisons to those thresholds; however, we feel that the
best scientific and commercial information available supports our
methods and determination.
Comment 11: Several commenters requested uncertainty estimates be
provided for data that were used in the status review report and the
proposed rule, particularly for those data pertaining to the levels of
uncertainty for population model estimates and for the extinction risk
analysis.
Response: Uncertainty in the estimates of population densities,
adult population sizes, and exploitation rates derived from the best
available scientific and commercial data available are all presented in
the status review report (see figures 5, 9, 18, and 19 in Horn et al.
2022). Uncertainty in reproductive dynamics are presented in the status
review report and described further in Farmer and Doerr (2022).
Multiple scenarios of population connectivity are presented in the
status review report and described further in Vaz et al. (2022). These
scenarios contribute to the uncertainty of the population model due to
the variability of values and of sampling methods at each of the
different nodes in the model. Reported versus reconstructed landings
are presented in figure 15 of Horn et al. (2022). Variability in the
extinction risk analysis is captured in figures 22-24 of Horn et al.
(2022). Finally, summary statistics and raw data associated with the
extinction risk analysis and density estimates are presented in status
review Supplementary Files 3 and 5, respectively.
Comment 12: One commenter noted that the variability in
morphometric measures, specifically shell lip thickness, among
locations suggests that determination of maturity in queen conch is not
uniform and can vary by location, thereby limiting the utility of
universal measures of maturity, and suggesting that such measures
should not be applied to all locations equally.
Response: As described in the proposed rule and discussed in the
status review report (Horn et al. 2022), we acknowledge that studies
have suggested morphometric characteristics may differ among localized
populations. Furthermore, age and size at maturity may differ among
locations, such that morphometric measures, such as shell lip
thickness, at maturity are not consistent among locations. Despite
local variability, shell lip thickness is often used as an indicator of
maturity in queen conch and in fishery management. Therefore, the
status review report analyzes morphology and shell lip thickness
carefully. As mentioned in the status review report, some of these
differences (including variability in shell lip thickness in mature
adults) may be driven by overutilization of the resource. Growth
overfishing (i.e., when conch are harvested at an average size that is
smaller than the size that would produce the maximum yield per recruit)
leads to smaller adults within fished stocks. In addition, the status
review report recommends further research on the direct effects of
environmental contaminants, such as heavy metals, pesticides, and other
pollutants. Contaminants and lower quality habitats may impact growth,
reproduction, and morphology. Other than the detrimental effects these
pollutants are known to have on early life stages such as larvae, the
effects of environmental contaminants on queen conch remain poorly
understood (Horn et al. 2022).
Despite the variability in morphometric characteristics among
localized population, shell lip thickness is the most reliable
indicator for maturity in queen conch, as described in the proposed
rule. The best available information indicates that shell lip thickness
for mature queen conch ranges from 17.5 to 26.2 mm for females, and 13
to 24 mm for males (Stoner et al. 2012; Bissada 2011; Aldana-Aranda and
Frenkiel 2007; Avila-Poveda and Barqueiro-Cardenas 2006). Boman et al.
(2018) suggested that a 15 mm minimum lip thickness would be an
appropriate threshold metric for most of the Caribbean region. The
primary goal of a minimum lip thickness is as a fishery management
metric to ensure that at least 50 percent of the queen conch population
will reach maturity prior to being harvested (Boman et al. 2018).
While the relationships between shell lip thickness, age, and
sexual maturity vary geographically, the best available information
demonstrates that the value established for minimum shell lip thickness
by most jurisdictions is inadequate to prevent immature conch from
being harvested. Only six jurisdictions (i.e., Colombia, Puerto Rico,
Nicaragua, U.S. Virgin Islands, Cuba, and Honduras) have minimum shell
lip thickness regulations. Only Honduras has a minimum shell lip
thickness of at least 18 mm, which is likely the most effective
criteria for prohibiting the harvest of immature conch; the other five
jurisdictions require a minimum lip thickness well below reported
minimum size at maturity (i.e., 5 mm, Colombia; 9.5 mm, Puerto Rico;
9.5 mm, Nicaragua; and 10 mm, Cuba). Thus, although several
jurisdictions have regulations that may prohibit harvest of immature
conch and while measures of maturity may vary geographically, our
review of minimum meat weight, shell length, and flared lip regulations
indicates that immature queen conch are being legally harvested in 20
jurisdictions, which is partially responsible for observed low
densities and declining populations. We also note that the majority of
queen conch fisheries (except St. Lucia and the U.S. Virgin Islands) do
not have requirements to land queen conch in the shell. Regulations
that allow queen conch meat to be removed and the shell discarded at
sea undermine enforcement and compliance with regulations for a minimum
shell length, shell lip thickness, and flared shell lip.
Comment 13: Several commenters suggested that demographic and
exploitation thresholds should not be equally applied across all
jurisdictions due to the nuances of individual fisheries. The
commenters argued that the differences among jurisdictions should be
accounted for and therefore different thresholds should be considered
for each individual jurisdiction.
[[Page 11215]]
Response: The status review report used threshold values of
population densities associated with reproductive capacity and harvest
levels that are generally considered sustainable. Those thresholds were
compared against the available information on population density and
harvest levels as a tool to evaluate the population in each
jurisdiction; however, we did not use these thresholds as definitive
measures of population status. Instead, thresholds were used to flag
whether jurisdictions, eco-regions, or macro-regions merited further
evaluation as being potentially at higher risk for viable queen conch
populations. Flagged locations were subjected to additional scrutiny
including evaluation of local and regional differences in data
collection programs, population productivity, connectivity, and
management regimes. In the status review report, the species was
evaluated across four demographic factors for viability (i.e.,
abundance, growth rate/productivity, spatial structure/connectivity,
and diversity) and five major threat categories as identified in
section 4(a)(1)(A)-(E) of the ESA (i.e., present or threatened
destruction, modification, or curtailment of its habitat or range;
over-utilization of the species for commercial, recreational,
scientific, or educational purposes; disease or predation; inadequacy
of existing regulatory mechanisms; and other natural or manmade factors
affecting its continued existence) across its entire range. We
evaluated these factors and threats across the entire range of the
species, then within individual jurisdictions, and ultimately across 10
distinct ecoregions within the range of the species. This approach
ensured that all risk factors were evaluated at both small and large
spatial scales, and no single factor was relied upon to determine the
extinction risk at any one location.
Comment 14: One commenter noted that the cause of reproductive
failure of queen conch in the Florida Keys is unknown, and cautioned
NMFS to consider this issue in the derivation of future regulations.
Response: NMFS acknowledges this issue and discusses the phenomenon
in the status review report and the proposed rule (87 FR 55220).
Nearshore populations seem to be disproportionately affected by the
described phenomenon. Given that heavy metals have been documented to
impair egg-laying in gastropods, several experts in the field have
speculated that the presence of ambient heavy metals in the Florida
Keys is likely contributing to reproductive failure in the nearshore
environment, however, further research is necessary to definitively
determine causality. We look forward to working with stakeholders in
the Florida Keys to address knowledge gaps and promote the recovery of
regional queen conch populations.
Comment 15: One commenter noted that subpopulations of queen conch
exist in Florida due to larval settlement patterns and barriers to
connectivity. In particular, the commenter discussed the importance of
the Hawk Channel in the Florida Keys as it represents a unique barrier
that limits connectivity among inshore and offshore populations in the
Keys that does not exist in other jurisdictions. The commenter stated
that this barrier in the Keys limits the ability of individuals from
inshore populations to migrate based on unfavorable environmental
conditions.
Response: Queen conch require physical contact to procreate;
however, their ability to move is hindered by various barriers
throughout its range, such as deep water passages, physical features of
insular shelves, and manmade structures. We agree with the commenter
that the Hawk Channel is a particularly large barrier. The status
review report and the proposed rule note the potential impacts of Hawk
Channel on connectivity and that it may be limiting movement, thereby
limiting the formation of spawning aggregations in the Florida Keys.
Comment 16: One commenter requested that NMFS contact one
particular researcher that has an extensive knowledge of queen conch
and the fishery throughout the region.
Response: The publications of the researcher in question were used
to inform the status review. In addition, the researcher that was
mentioned provided public comment on the proposed rule, and we have
considered that comment, which was generally supportive of the proposed
rule.
Comment 17: One commenter requested that NMFS summarize the
uncertainty associated with the habitat model that was used in the
status review to estimate total area of queen conch habitat throughout
its range and provide uncertainty estimates.
Response: NMFS used a habitat model published in Vaz et al. (2022)
to estimate the total area of queen conch habitat throughout its range.
The habitat estimates presented in Vaz et al. (2022) were based on
coral reef locations from the Millennium Coral Mapping Project
(Spalding et al. 2001; IMaRS-USF 2005; IMaRS-USF and IRD 2005;
Andr[eacute]fou[euml]t 2008; UNEP-WCMC et al. 2021), and restricted to
depths of less than 20 m (Salley 1986; Berg Jr. et al. 1992; Boidron-
Metairon 1992; Stoner and Sandt 1992; Stoner and Schwarte 1994; Delgado
and Glazer 2020). Vaz et al. (2022) also included known spawning sites,
including putative deep-water spawning locations, in the habitat layer,
by ground-trutheding the habitat map with spawning sites reported in
the literature (Randall 1964; D'Asaro 1965; Brownell 1977; Davis et al.
1984; Weil and Laughlin 1984; Coulston et al. 1987; Wilkins et al.
1987; Wicklund et al. 1991; Berg Jr. et al. 1992; Garc[iacute]a-Escobar
et al. 1992; Stoner and Sandt 1992; M[aacute]rquez-Pretel et al. 1994;
Lagos-Bayona et al. 1996; P[eacute]rez-P[eacute]rez and Aldana-Aranda
2003; Garcia-Sais et al. 2012; Cala et al. 2013; de Graaf et al. 2014;
Meijer zu Schlochtern 2014; Wynne et al. 2016; Truelove et al. 2017).
This review led to the inclusion of 13 shallow-water polygons not
initially present in the Coral Mapping Project-derived habitat layer.
These areas were in St. Eustatius, U.S. Virgin Islands (USVI),
Colombia, Florida, Mexico, Jamaica, Saba, Bonaire, and The Bahamas
(Randall 1964; Coulston et al. 1987; Garc[iacute]a-Escobar et al. 1992;
M[aacute]rquez-Pretel et al. 1994; Meijer zu Schlochtern 2014; Truelove
et al. 2017). Vaz et al. (2022) also included additional 14 polygons
containing putative deep spawning sites in waters off of Venezuela,
Cuba, The Bahamas, USVI, Turks and Caicos Islands (TCI), Saba,
Colombia, Belize, Honduras, Puerto Rico and Jamaica (i.e., Pedro Bank)
(Randall 1964; Brownell 1977; Davis et al. 1984; Weil and Laughlin
1984; Wicklund et al. 1991; Stoner and Sandt 1992; Lagos-Bayona et al.
1996; Aiken et al. 2006; Garcia-Sais et al. 2012; Cala et al. 2013; de
Graaf et al. 2014; Truelove et al. 2017).
Uncertainty associated with the habitat area estimates were not
reported for the data sources used to derive the Vaz et al. (2022)
habitat model. To evaluate uncertainty in their habitat
categorizations, Vaz et al. (2022) compared their habitat model
estimates to published seagrass habitat cover and conch fishing areas
(supplemental information figure 3 in Vaz et al. 2022), including
compilations of global geomorphic zones (UNEP-WCMC and Short 2021;
Allen Coral Atlas 2020; McKenzie et al. 2020; Schill et al. 2021);
studies focused on jurisdictions or regional levels (Wabnitz et al.
2008; Tewfik et al. 2017; Le[oacute]n-P[eacute]rez et al. 2019); and
documented fishing sites (compiled in Prada et al., 2017). Overall, Vaz
et al. (2022) found that estimates of seagrass area by jurisdiction
were highly variable, and estimates of conch fishing areas were
generally much lower than
[[Page 11216]]
the highest estimates of seagrass cover. Vaz et al. (2022) concluded
that their final habitat model represented a conservative measurement
of conch habitat throughout the Caribbean.
Comments on Existing Regulatory Mechanisms
Comment 18: Several commenters stated that local regulations are
sufficient to recover the queen conch population, or that they were
already effective in preventing the decline of the species in local
jurisdictions.
Response: We disagree that existing regulatory mechanisms are
adequate to prevent the decline of queen conch. The status review
assessed the adequacy of regulatory mechanisms in each jurisdiction
relative to the threats impacting the status of queen conch, and we
concluded that existing regulations were unlikely to prevent queen
conch from becoming in danger of extinction within the foreseeable
future throughout its range.
We recognize that efforts are being made throughout the region to
responsibly manage the queen conch fishery. However, many populations
continue to decline, particularly in the central/southern Caribbean,
despite these efforts. In addition, the regulatory mechanisms in place
for minimum sizes, harvest rules, and landing methods are inadequate in
many jurisdictions. For example, in many jurisdictions, current
regulations allow the harvest of immature individuals. Moreover, as
detailed in the proposed rule, many jurisdictions lack effective
enforcement of their existing regulatory mechanisms and evidence of
illegal, unreported, and unregulated (IUU) fishing undermines the
ability of such mechanisms to prevent further declines. Only a fraction
of the jurisdictions (i.e., Belize, The Bahamas, Jamaica, Nicaragua,
and Colombia) are conducting periodic surveys to inform their national
harvest quotas. Several jurisdictions (e.g., Curacao and Trinidad and
Tobago) have no regulations despite having queen conch fisheries.
Despite some potentially effective local efforts to protect conch
populations, when considering management strategies throughout the
range of the species, most efforts have fallen short of their goals.
Due primarily to a lack of population surveys, assessments, and
monitoring, and a reliance on minimum size-based regulations that
likely do not prevent the harvest of immature conch or protect spawning
stocks, we conclude that existing regulatory mechanisms throughout the
range of the species are inadequate to achieve their purpose of
protecting the queen conch from unsustainable harvest and continued
populations decline. The commenters provided no new information
suggesting that new regulations have been implemented, that regulations
exist that were not previously considered in making our listing
determination, or that there is evidence that the existing regulations
are effectively enforced or more effective than we considered.
Comment 19: Several commenters mentioned that inadequate
enforcement of existing regulations is one of the primary threats to
the queen conch population throughout the region. Similar comments
mentioned that overutilization by IUU fishing was a significant
contributor to the decline of the species.
Response: We agree that inadequate enforcement of existing
regulations and IUU fishing are serious threats to the queen conch
population throughout its range. We discussed these factors in the
proposed rule and in response to comment 18.
Comment 20: One commenter encouraged NMFS to increase support for
collaborative efforts to address IUU fishing throughout the region,
because this is the largest threat that the queen conch is facing.
Response: As outlined in the status review and the proposed rule,
NMFS recognizes the detrimental impact of IUU fishing on the population
of queen conch as a serious threat throughout the region. We plan to
work with regional stakeholders to foster collaborations and address
this threat as we strive to implement actions that will promote the
recovery of the species.
Comment 21: Several commenters expressed concern that the ESA
listing would penalize particular regions or jurisdictions that have
implemented sustainable regulations to protect queen conch as a result
of detrimental actions in other jurisdictions.
Response: Under section 4(b) of the ESA, we are required to base
listing decision solely on the best scientific and commercial data
available after conducting a review of the status of the species, and
after taking into account conservation efforts to protect the species
(16 U.S.C. 1533(b)(1)(A)). When making a listing decision, we cannot
consider economic impacts or other potential impacts that may result
from a listing. Our decision to list the queen conch as a threatened
species does not automatically result in take prohibitions, nor does it
automatically impose any restrictions on trade in queen conch. However,
under section 7(a)(2) of the ESA, listing does result in a requirement
for Federal agencies to ensure that activities they carry out, fund, or
authorize are not likely to jeopardize the continued existence of the
species (16 U.S.C. 1533(d)). Section 4(d) of the ESA also authorizes us
to issue protective regulations we deem necessary and advisable for the
conservation of threatened species (16 U.S.C. 1533(d)). Under section
4(d) of the ESA, we may also prohibit any of the actions that are
prohibited under section 9(a)(1) of the ESA for endangered species,
including import into and export from the United States of the listed
species. Protective regulations would be tailored specifically to
prevent further decline and facilitate recovery, and would be issued
through a separate rulemaking with further opportunity for public
comment.
Because the queen conch is an invertebrate, we cannot list this
species as distinct population segments, and therefore we cannot limit
this species' listing to certain jurisdictions. Any future regulatory
impacts associated with listing queen conch under the ESA apply within
the United States, U.S. Territories, and any persons subject to U.S.
jurisdiction. While we encourage other jurisdictions to implement
actions to recover queen conch populations in light of this listing
determination, we cannot enforce regulatory actions in foreign
jurisdictions.
Comment 22: Several commenters suggested that NMFS consider other
actions to facilitate the recovery of the queen conch population rather
than an ESA listing, including regional collaborations, such as working
with WECAFC or stricter CITES regulations.
Response: Section 4 of the ESA requires that we make listing
determinations based solely on the best scientific and commercial data
available after conducting a status review of the species and after
taking into account efforts being made to protect the species (16
U.S.C. 1533(b)(1)(A)). In the proposed rule, we provided an assessment
of existing regulations, including those associated with the CITES
Appendix II, as well as other conservation measures currently underway
in the region to account for efforts being made by any state or foreign
nation to protect the species. We also evaluated the certainty of
whether formalized conservation efforts will be implemented and will
demonstrate effectiveness in accordance with the Policy for Evaluation
of Conservation Efforts (68 FR 15100, March 28, 2003). The evaluation
conducted under this policy assesses whether these conservation efforts
are sufficiently certain to be implemented and effective
[[Page 11217]]
such that that they contribute to making it unnecessary to list a
species, or to list a species as threatened rather than endangered. As
explained in the proposed rule, and further expanded upon in comment
20, we concluded that existing regulatory mechanisms are inadequate to
control overutilization of the species, and various protective efforts
are not sufficient to change the species' risk of extinction. We
acknowledge that the Seafood Import Monitoring Program of the United
States includes the queen conch as one of the species monitored to
combat IUU fishing and therefore promotes sustainable harvest. We are
also aware of restoration efforts being carried out to promote
population recovery (e.g., Florida Atlantic University Queen Conch
Aquaculture program), as well as the recovery of queen conch habitats,
including coral reefs (e.g., Coral Reef Conservation Program) and
seagrasses (e.g., Restore Act), all of which will in turn promote the
recovery of the species. Despite fishery management regulations aimed
at controlling commercial harvest, poor enforcement, inappropriate
management measures, and significant IUU fishing demonstrate that the
existing regulatory mechanisms throughout much of the range of the
species are inadequate to control over-harvest and therefore are
contributing to continued population decline. We note that the
integration of efforts by FAO, CFMC, WECAFC, and the Organizacion del
Sector Pesquero y Acuicola del Istmo Centroamericano (OPESCA) to
coordinate and improve management and combat IUU fishing region-wide,
is an encouraging sign, as their goals are to improve fishery data
collection and establish reliable landings data based on scientifically
supported conversion factors and management measures (Horn et al.
2022).
Comment 23: One commenter suggested that NMFS did not account for
the ability of range states to adapt management policies based on their
own queen conch population projections, such as has occurred in The
Bahamas. According to this commenter, The Bahamas has greatly reduced
queen conch exports in favor of meeting local demand due to population
survey monitoring results.
Response: The status review report summarizes the adequacy of each
jurisdiction's specific fisheries management regulations, in terms of
their design and enforcement, on the status of queen conch populations
across the range of the species, and includes a detailed Supplemental
File describing regional management strategies (Supplemental File 1 in
Horn et al. 2022). We understand The Bahamas policy referenced by the
commenter is not an enforceable regulation, but rather a suggested
policy. While we support all strategies that have the potential to
reduce over-exploitation of the species, without data to support the
effectiveness of such strategies, such as increased population density
or increased reproductive output, we cannot rely on them to support a
decision not to list a species that otherwise meets the definition of
threatened.
Comment 24: Several commenters stated that their particular
jurisdictions were promoting queen conch recovery via CITES management
measures (including quotas, exploitation rates and density thresholds)
and CRFM legislation, and therefore the ESA listing is unnecessary.
Response: The status review report and proposed rule considered
existing regulations and recovery efforts, including those mentioned by
the commenters (see the Inadequacy of Existing Regulatory Mechanisms
section in Horn et al. (2022) for a jurisdiction by jurisdiction
breakdown of regulatory mechanisms). We are encouraged by local
recovery efforts, and intend to partner with local stakeholders to
complement these types of efforts with our own to ultimately promote
the recovery of the species.
Comments on Threats
Comment 25: One commenter asked what specifications allow a species
to be listed under the ESA, whether different species have different
specifications for a listing, whether a species can be listed based on
loss of habitat, and whether overfishing of queen conch in one location
can lead to a listing even if healthy populations exist elsewhere.
Response: A species is considered ``endangered'' if it is in danger
of extinction throughout all or a significant portion of its range,
whereas a ``threatened'' species is defined as any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. As mandated by
the ESA, we are required to determine whether a species is threatened
or endangered because of any of the factors identified in section
4(a)(1)(A)-(E) of the ESA. A species may be listed as threatened or
endangered as a result of any one or more of those factors (threats).
The particular circumstances and threats that contribute to a
particular species' listing under the ESA are highly fact- and case-
specific, but each listing determination must be based on the best
scientific and commercial data available and be supported by those
data.
One of the section 4(a)(1) factors (factor A) specifically
addresses habitat loss as a potential basis for listing. However, with
regard to queen conch, we concluded that at this time, the best
available information indicates that habitat loss and degradation are
not significantly contributing to the species' extinction risk. As
outlined in the status review report, factor B, overutilization for
commercial, recreational, scientific, or educational purposes, was
identified as the primary contributor to the listing determination. The
extinction risk analysis was conducted on the entire range of the
species, assessing demographic trends, including productivity and
connectivity across 39 unique jurisdictions. Overall, we concluded that
overfishing, coupled with inadequate regulatory mechanisms to control
overfishing, in particular jurisdictions is having adverse effects
across the range of the species such that the species is likely to
become an endangered species within the foreseeable throughout its
range.
Comment 26: Several commenters pointed out that the exploitation
rate of 8 percent for the adult queen conch populations referenced in
the proposed rule was intended as a guideline to be used in data-
limited situations as opposed to a firm threshold that cannot be
surpassed in data-rich fisheries. These commenters suggested that their
own jurisdictions could in fact surpass this threshold given the status
of their monitoring programs and fishery regulations.
Response: We did not use the exploitation rate of 8 percent as a
definitive threshold to evaluate the status of queen conch fisheries
across all jurisdictions. Instead, we used it as a tool to flag areas
that exhibited high amounts of harvest relative to the local
population. We evaluated the threat of overutilization of conch
populations across many factors including density thresholds, available
habitat, and exploitation rate. In particular, we note that 51 percent
of jurisdictions were above the 8 percent exploitation rate; 80 percent
of those had densities below 100 adult conch/hectare and 65 percent had
densities below 50 adult conch/hectare.
The commenters have not provided any new data or information
derived from their monitoring programs beyond what was considered in
the status review report and proposed rule. Moreover, the commenters
did not identify better available scientific or commercial information
that would lead us to change our determination.
[[Page 11218]]
Comment 27: Fourteen commenters recommended listing queen conch as
endangered; one commenter specifically mentioned that the ESA section
4(a) risk factors support listing queen conch as an endangered species,
rather than a threatened species. One commenter in particular stated
that because overfishing (factor B) is reducing queen conch populations
and there is no foreseeable reduction in fishing pressure, queen conch
will continue on the path towards extinction, which the commenter
equates with the standard for listing the species as endangered. This
commenter also stated that existing regulatory mechanisms (factor D)
over the past 30 years have not succeeded in recovering queen conch
populations. According to this commenter, NMFS should list the species
as endangered because once the population falls below critical density
thresholds, it is at risk of extinction, and NMFS should not wait to
list the species as endangered until this threat becomes more severe,
which the commenter believes will occur in less than 30 years.
Response: We disagree that the queen conch should be listed as an
endangered species. As explained in the proposed rule, the key
statutory difference between a threatened and endangered species is the
timing of when a species may be in danger of extinction, either now
(endangered) or in the foreseeable future (threatened). We have
concluded that the queen conch is not presently in danger of
extinction, but is likely to become so in the foreseeable future. The
status review team conducted an extinction risk analysis whereby risk
categories (i.e., low, medium, high) were assigned to the threats and
the demographic risks to the species throughout its range. Guided by
the results of their demographic risk analysis and the threats
assessment, the status review team used their informed professional
judgement to make an overall extinction risk determination for the
queen conch. The SRT ultimately concluded that queen conch is facing a
moderate risk of extinction, meaning that it is on a trajectory that
puts it at a high level of extinction risk within the foreseeable
future.
As stated in the proposed rule and in our response above to comment
4, we evaluated the SRT's conclusions regarding extinction risk and
ongoing and planned conservation efforts for queen conch. We considered
each of the statutory factors to determine whether it presented an
extinction risk to the queen conch on its own, now or in the
foreseeable future, and also considered the combination of those
factors to determine whether they collectively contribute to the
extinction risk of the species, currently or in the foreseeable future.
Based on our consideration of the best available scientific and
commercial information, as summarized here, including the SPR analysis,
we conclude that while queen conch is not currently in danger of
extinction throughout all or a significant portion of its range, it is
likely to become so within the foreseeable future as a result of ESA
section 4(a)(1) factors: B (overutilization for commercial,
recreational, scientific, or educational purposes); D (inadequacy of
existing regulatory mechanisms to address identified threats); and E
(other natural or human factors affecting its continued existence).
We conclude that the species does not currently have a high risk of
extinction due to its broad distribution, its presence throughout its
geographic range, and the significant connectivity between
reproductively viable locations and other locations with reduced
populations throughout the species' range. The commenters did not
provide any new or better information about any threats that NMFS
failed to consider in reaching its determination that the species'
extinction risk is in the foreseeable future. Nor did the commenters
suggest that NMFS relied on anything other than the best available
information in assessing the threats.
Based on our consideration of the best data available, and as
explained above, we do not find that queen conch is presently in danger
of extinction. We also disagree that a species that is currently on a
path towards extinction is necessarily equivalent to a species that is
currently in danger of extinction. A species that is on a path towards
extinction is, however, consistent with our determination in this case
that queen conch is likely to become endangered in the foreseeable
future, i.e., threatened.
While we agree with the commenter that factor D is a threat to the
species, we disagree that this threat means the species is currently at
risk of extinction. Our decision to list the species as threatened does
not mean that we will wait until the threats become more severe before
we undertake actions to recover the species. To the contrary, after the
species is listed, we will work on developing a recovery plan that will
guide future efforts to change the species' trajectory toward recovery.
To the extent this comment disagrees with NMFS's definition of the
foreseeable future, we address that comment in response to comment 29.
Thus, while we recognize that the commenters would have reached a
different assessment of the species' extinction risk based on the
information NMFS relied upon, the commenters did not provide any
information that would change our conclusion that the queen conch is
not presently in danger of extinction, but is likely to become an
endangered species within the foreseeable future.
Comment 28: One commenter stated that queen conch should be listed
as endangered because ocean temperature, ocean acidification, and
possible changes in Caribbean circulation patterns, all of which are
associated with climate change (factor E), represent serious threats to
the continued viability of the queen conch. This commenter also stated
that because NMFS determined that the foreseeable future for climate
change extends out to the year 2100, there may not be sufficient levels
of queen conch to protect, or enough density to continue reproducing,
given the current decline.
Response: NMFS agrees with the commenter that ocean temperature,
ocean acidification, and changes in circulation patterns present
threats to queen conch. We disagree, however, that these climate-change
associated threats mean the species is currently at risk of extinction
and thereby warrant listing the species as endangered. The climate-
change associated threats have been evaluated for the foreseeable
future (i.e., to the year 2100), when we expect them to present greater
challenges to the viability of queen conch. If a species is at risk of
extinction in the foreseeable future, but not presently, then a
threatened listing is warranted instead of an endangered one.
We selected a longer timeframe associated with the threat of
climate change, out to the year 2100, because of the availability of
long-term predictions of increasing climate change and associated
predicted impacts on queen conch. The commenter did not provide a
scientifically defensible alternative to the foreseeable future values
that were developed and applied in the status review report. With
respect to the year 2100 (equal to roughly 8-18 generations), the
commenter is concerned that populations of queen conch will be too
depleted to be recovered at that time, if they do not receive the
protections of an endangered status. We also note that by listing queen
conch as a threatened species, the goal is to alleviate the effects of
such threats before the species becomes endangered. Once listed under
the ESA, we are required to review the status of the species every 5
years, thereby ensuring that we monitor the status of
[[Page 11219]]
this species and the appropriateness of its classification as
threatened.
As explained in response to comment 27, our determination that the
species is likely to become in danger of extinction in the foreseeable
future (i.e., threatened) does not mean that we will wait until the
effects associated with climate change occur before undertaking actions
to recover the species. While the commenter disagrees with our
assessment that 2100 represents the foreseeable future as it relates to
climate change (factor E), the commenter does not assert that threats
associated with climate change represent an imminent extinction risk
for queen conch. Thus, even if the commenter believes NMFS should have
selected a shorter timeframe as the foreseeable future associated with
climate change, the commenter's acknowledgement that climate change
presents threat to species' risk of extinction within the foreseeable
future is consistent with our determination to list the species as
threatened.
Comment 29: One commenter asserted that NMFS erred in limiting the
foreseeable future as 30 years for factors B and D. The commenter
stated that previous management measures that were enacted well over 30
years ago have yet to recover populations in individual jurisdictions.
Response: The ``foreseeable future,'' in the context of an ESA
status review, is the time period over which we can reasonably
determine that both the future threats and the species' responses to
those threats are likely. After we published the proposed rule to list
queen conch as a threatened species, NMFS and the USFWS jointly
proposed to revise the interpretation of ``foreseeable future'' in the
definition of a ``threatened species,'' as extending as far into the
future as we can reasonably rely on information about the threats to
the species and the species' responses to those threats (88 FR 40764,
June 22, 2023). Applying either interpretation, we must have a
reasonable degree of confidence in the prediction based on the best
available information. Regarding listing factors B and D, the
foreseeable future of 30 years indicates that we anticipate both the
threats associated with those factors and their continued impact on
queen conch are likely to be realized over that period. As the
commenter points out, restrictions that were put in place over 30 years
ago (equal to roughly 3-6 generations) have not resulted in fully
recovered populations; however, some of those specific jurisdictions
(e.g., Florida) have seen initial signs of recovery which have resulted
in some of the highest densities of aggregating individuals (Delgado
and Glazer 2020) recorded throughout the range of the species.
Additionally, recovery within a particular jurisdiction will depend on
the larval dynamics associated with that sub-population, such that
self-recruiting populations will have greater benefits resulting from
no-take prohibitions, while other jurisdictions will need to rely on
upstream sub-populations to augment recovery.
We continue to find that the foreseeable future timeframes applied
to queen conch are appropriate and that we can reasonably determine
that both the threats and the species' responses to the threats are
likely to occur within those timeframes.
Comment 30: One commenter asserted that NMFS failed to analyze all
of the statutory factors in ESA section 4(a)(1)(A)-(E) when determining
whether queen conch should be listed as endangered or threatened.
Namely, the commenter indicated that NMFS failed to analyze factors A
(e.g., the present or threatened destruction, modification, or
curtailment of its habitat or range) and C (e.g., disease or
predation). The commenter went on to assert that the habitat of queen
conch exhibits destruction and curtailment throughout its range, which
is likely a result of risk factors B, D, and E. The commenter further
indicated that climate change will exacerbate this destruction and
therefore precautionary actions should be taken to acknowledge the
habitat destruction in the jurisdiction of the United States.
Response: We disagree. We considered all five statutory factors
(ESA section 4(a)(1)(A)-(E)) in reaching our determination that the
queen conch warrants listing as a threatened species under the ESA.
With respect to factor A, the SRT concluded that (i) habitat stability,
quality, and resilience is decreasing in many parts of the Caribbean
due to anthropogenic activities that have led to direct and indirect
impacts to seagrass and substrate, which are important to queen conch,
(ii) increased pollutants, contaminants, and microplastics are
impacting conch via their habitats, and (iii) the severity of these
habitat related threats depend on the spatial scope and temporal
persistence of the specific activities and the local demographics of
queen conch populations. Nonetheless, the SRT concluded that the best
available information indicates that habitat loss and degradation alone
are not threatening the species' persistence. Additionally, with
respect to factor C, we concluded that the best available information
indicates that an organism, which may be parasitic, is prevalent in all
the sampled conch specimens throughout the Caribbean and that several
studies suggest that the organisms are correlated with irregularities
in reproductive cycles and reduced gametogenesis, while other studies
are contradictory, suggesting that the organisms had no negative
effects on health or reproduction. With respect to predation, the SRT
concluded it is not believed to currently be a factor that is
influencing the status of queen conch.
As explained in the proposed rule, we concluded that the SRT's
findings on all five factors in ESA section 4(a)(1)(A)-(E), including
factors A and C, were well-considered and based on the best available
scientific information. We concurred with the SRT's assessment and
found that the best available information does not indicate that
factors A and C are operative threats on this species (87 FR 55209,
September 8, 2022).
Comment 31: One commenter mentioned that it was contradictory to
state that ESA section 4(a) risk factor A was not significantly
contributing to the extinction of the species, while also acknowledging
that specific jurisdictions may require habitat protections or
regulations, adding that such measures would not be warranted if no
threats to the species' habitat existed.
Response: We disagree that the need for measures to protect a
species' habitat means that factor A must always be significantly
contributing to the extinction risk of the species. In this case, the
present or threatened destruction, modification, or curtailment of the
species' habitat or range is not currently a factor contributing to the
queen conch's overall extinction risk. At the same time, there are some
areas, such as in Bermuda, where regulations aimed at protecting local
habitat or water quality may be warranted. The fact that one
jurisdiction may need additional measures to protect queen conch
habitat within that jurisdiction does not necessarily mean that habitat
destruction, modification, or curtailment is contributing to the
species' extinction risk throughout all or a significant portion of its
range.
Comment 32: Several commenters asserted that NMFS failed to provide
a substantive analysis of the cumulative impact of the five factors
(ESA section 4(a)(1)(A)-(E)). These commenters suggested that the
cumulative impact of threats to queen conch supports listing the queen
conch as an endangered species, rather than a threatened
[[Page 11220]]
species. The commenter further asserted that NMFS failed to provide any
quantitative or qualitative assessments or estimates of the overall
extinction risk for the queen conch.
Response: We disagree. NMFS considered all five listing factors in
combination in determining whether to list the queen conch under the
ESA. The analysis in the status review report considered and evaluated
the species overall extinction risk resulting from the threats
assessment as well as the demographic assessment. The overall
extinction risk analysis ranking considers the cumulative impact of all
identified threats and risks to the species. In the proposed rule, we
describe in detail the relationship between the inadequacy of existing
regulatory measures and enforcement to control the threat of
overutilization, which translates into demographic concerns of low
reproductive densities and disrupted population connectivity.
Additionally, in our discussion of indirect impacts of climate change
on queen conch (as part of our discussion of factor E), we discuss how
higher temperatures could impact the availability of sea grasses and
oxygen and salinity levels, all of which would impact the species
habitat, food sources and availability of shelter from predators. We
also discuss how ocean acidification could affect shell formation,
which plays a vital role in protection from predators, parasites, and
unfavorable environmental conditions.
We acknowledge that more information is needed to better understand
the population consequences of multiple stressors, especially those
associated with interactions between long-term climate change such as
sea level rise and increased erosion, turbidity, siltation, and
severity of tropical storms. These threats have the potential to
produce more widespread impacts, especially as they affect key
ecological processes during early life stages such as larval dispersal,
growth, and predation and whether presence of parasites increases the
species' extinction risk. Despite this need for more information and as
explained above in our response to comment 27, we disagree that queen
conch is currently at risk of extinction and should be listed as an
endangered species. We find that the best available scientific and
commercial information indicates that the species is likely to become
``endangered'' (in danger of extinction) ``within the foreseeable
future,'' which is consistent with listing the species as threatened.
In support of this listing determination, the SRT conducted a
qualitative assessment of the overall extinction risk for the queen
conch. This assessment is discussed in detail in the status review
report (Horn et al. 2022). There is no requirement under the ESA that
NMFS conduct a quantitative assessment of extinction risk, and
sufficient data to perform quantitative analyses of extinction risk are
often not available. As we described in the proposed rule, based on
demographic risk factors and threats to the species, the SRT evaluated
the overall extinction risk for queen conch using a ``likelihood
point'' (Forest Ecosystem Management Assessment Team 1993) method to
express each team member's assessment of extinction risk across all
factors and capture their uncertainty in that assessment. As discussed
in more detail in the status review report, each of the 7 SRT members
distributed 10 ``likelihood points'' among 3 extinction risk
categories: (1) low risk; (2) moderate risk; and (3) high risk. The SRT
placed 59 percent of their likelihood points in the ``moderate risk''
category. Due to uncertainty, particularly regarding consistent
reporting of landings and survey methodologies, the SRT also placed
some of their likelihood points in the ``low risk'' (30 percent) and
``high risk'' (11 percent) categories. Based on this analysis, the SRT
concluded that the queen conch is currently at a ``moderate risk'' of
extinction. We agreed that the SRT's approach to assessing the
extinction risk for queen conch was appropriate, consistent with our
agency practice, and based on the best scientific and commercial
information available. After considering the SRT's assessment, we
concluded that the queen conch is not currently in danger of
extinction, but is likely to become so in the foreseeable future
throughout all of its range.
Comments on Social, Economic, or Cultural Factors
Comment 33: Several commenters provided a social or cultural
rationale as to why the species should not be listed under the ESA. The
commenters referred to the cultural and social importance of queen
conch in the form of traditional cuisine, subsistence, nutrition, and
historical cultural values and beliefs.
Response: NMFS is mandated under the ESA to determine whether a
species is an endangered or threatened species ``solely on the basis of
the best scientific and commercial data available'' (16 U.S.C.
1533(b)(1)(A). Therefore, we are not allowed to consider social,
economic, or cultural factors when deciding whether to list a species
under the ESA. Within U.S. jurisdiction, the listing of listing queen
conch as a threatened species under the ESA does not create additional
user regulations beyond those that are already in place; therefore,
this rule is not anticipated to impact the cultural or social
importance of queen conch within the United States. The ESA listing
will have no effect on the citizens of other nations, outside the
jurisdiction of the United States, and thus would not restrict
traditional uses there. Any potential regulations under the authority
of the ESA for the species would be developed through a separate
rulemaking process under section 4(d) of the ESA, whereby NMFS can
tailor the rule to specifically address conservation needs. Public
comment would be solicited and considered, along with economic and
social impacts, in the development of any future 4(d) regulations.
Comment 34: Several commenters suggested that better outreach and
educational programs are needed to inform stakeholders about how
species can get listed under the ESA, citing concerns over equity and
environmental justice. Specifically, commenters suggested that NMFS
coordinate with under-served communities to promote outreach and
education opportunities due to unawareness of regulations and local
management strategies.
Response: Prior to publication of the proposed rule, NMFS sent
Spanish-speaking staff to discuss the queen conch status review with
the CFMC and WECFAC working groups. Following publication of the
proposed rule, NMFS provided English, Spanish, French, Dutch, and
Creole versions of the proposed rule; along with English and Spanish
versions of Frequently Asked Questions. Additionally, NMFS provided an
after-hours virtual public hearing presentation and question and answer
session, with live Spanish-language interpretation services and
English, French, German, Spanish, and Italian closed captioning
translation options. Spanish-speaking staff have attended several CFMC
and District Advisory Panel meetings to provide presentations and
updates on queen conch rulemaking.
Although NMFS has made good faith efforts to engage under-served
communities in the development of this final rule, we recognize there
is room for improvement. NMFS identified outreach and engagement as a
core component of the new national Equity and Environmental Justice
(EEJ) strategy released in May of 2023 (https://media.fisheries.noaa.gov/2023-05/NOAA-Fisheries-EEJ-Strategy-Final.pdf). The three overarching goals of the strategy are to: (1)
prioritize
[[Page 11221]]
identification, equitable treatment, and meaningful involvement of
underserved communities; (2) prioritize equitable delivery of services;
and (3) prioritize EEJ in our mandated and mission work with
demonstrable progress. Our outreach and engagement objective aims to
build relationships with underserved communities to better understand
their engagement preferences and improve information sharing with all
communities.
We are currently working to operationalize the national EEJ
strategy in the Southeast Region through the development of a Southeast
EEJ Implementation Plan. That plan is being informed by feedback we
received in response to a public Request for Information, along with
information we obtained through a series of focus group meetings
conducted with underserved community members and liaisons throughout
the region. We will continue to coordinate with underserved communities
on outreach and education initiatives as we work to incorporate EEJ
into the vital services we provide to all communities.
Comment 35: One commenter suggested that NMFS should increase
outreach and education programs to warn fishers of the dangers of IUU
fishing and overexploitation as there is a lack of awareness of local
management strategies and regulations.
Response: We agree that increased outreach and education programs
could promote queen conch fishery sustainability throughout the region,
and we look forward to working with regional partners to promote such
programs, as appropriate, to facilitate the recovery of the species.
Comment 36: Several commenters requested that the public documents,
presentations, rulings, listings in the Federal Register, and other
communications put forward by NMFS should be provided in Spanish.
Response: The issue of language alternatives was brought to our
attention early on during the public comment period. In response, we
provided English, Spanish, French, Dutch, and Creole versions of the
proposed rule; English and Spanish versions of Frequently Asked
Questions and the public hearing presentation; and live Spanish-
language interpretation services and English, French, German, Spanish,
and Italian closed captioning translation options for the public
hearing. To the extent possible, we will similarly prepare English,
Spanish, French, Dutch, and Creole versions of the final rule, and we
will continue to provide English and Spanish versions of frequently
asked questions and other documents that will be developed as a part of
the recovery planning process.
Comment 37: One commenter suggested that NMFS is undermining local
stakeholders to ensure that the queen conch is listed under the ESA.
Response: While we disagree with the commenter's assertion, we
recognize the important role of stakeholders as we work together to
recover the species. NMFS received a petition to list the species, and
we are carrying out our statutory responsibilities under the ESA.
Listing queen conch as a threatened species under the ESA recognizes
the objectively determined status of the species and provides support
from the Federal Government towards the recovery of the species.
Comment 38: One commenter suggested that NMFS is implementing
``draconian measures'' on resources in the U.S. Caribbean, which
equates to ``institutional racism and discrimination.'' The commenter
elaborated by mentioning that these issues fall under ``equity and
environmental justice.''
Response: We disagree. By listing a species under the ESA, NMFS is
executing its statutory responsibilities. As required by the ESA, we
based our listing determination solely on the best scientific and
commercial data available regarding the status of the species. Our
procedures, some prescribed by statute and others by Agency regulations
or policies, are focused on ensuring that our decisions are objective
and based on the best available science. We recognized the need for
further engagement with local stakeholders beyond conventional means,
particularly to solicit input from underrepresented, marginalized, and
underserved communities that may not have the technical training,
technology, or experience needed to provide public comment via
traditional platform, as explained in response to comment 34. As we
develop further actions related to the queen conch, NMFS will continue
to work to find ways to meaningfully engage with local stakeholders to
promote the recovery of the species.
Comment 39: One commenter referenced the United Nations sustainable
development goal 10, to ``Reduce inequality within and among
countries.'' The commenter expressed concern that the listing
determination would inadvertently lead to inequality and limit
inclusion by stakeholder groups.
Response: We disagree that our determination to list queen conch as
a threatened species will lead to inequality and limit inclusion by
stakeholder groups. We note that listing of queen conch under the ESA
has no regulatory effect beyond those required through ESA section 7
that Federal agencies consult with us on actions they authorize, fund,
or carry out if those actions may affect the listed species or
designated critical habitat within our jurisdiction. Under the ESA, we
are also required to designate critical habitat for listed species to
the maximum extent prudent and determinable (16 U.S.C.
1533(a)(3)(A)(ii). Per our implementing regulations, however, we cannot
designate critical habitat within foreign countries or in other areas
outside the jurisdiction of the United States (50 CFR 424.12(g)).
While we acknowledge that economic, social, and cultural
considerations cannot be considered during the listing process, we note
that the listing determination was based on the best available science,
and we took measures to ensure broad and inclusive stakeholder
participation. Public comments were solicited and received after the
90-day positive finding (77 FR 51763, December 6, 2019) and again for
an extended period after the publication of the proposed listing (87 FR
55200, September 8, 2022; 87 FR 67853, November 10, 2022). As noted
above, substantial efforts were made to provide materials across
numerous languages and to engage with stakeholders throughout the range
of the species. Our public hearing, held on November 21, 2022, was
formally noticed to representatives from over 30 state, Federal, and
international organizations including CITES; WECAFC; CRFM; CFMC; the
United States Department of State; the United States Congress; State/
Territorial partners; over 6,000 subscribers to our Fishery Bulletin,
including 4,000 in the U.S. Caribbean; and many others.
Should further rulemaking be initiated through section 4(d) of the
ESA, other factors including economic, social, and cultural
considerations can be incorporated into the decision making process.
This process would provide additional opportunities for public comment,
community engagement, and stakeholder inclusion.
Comment 40: Several commenters referenced the economic importance
of queen conch to their fisheries, and commented that any further
restrictions on catch would hinder economic growth and fishing
community prosperity.
Response: NMFS is mandated under the ESA to make listing decisions
``solely on the basis of the best scientific and commercial data
available,'' after conducting a review of the status of the species and
taking into account the efforts being made by any state or
[[Page 11222]]
foreign nation to protect the species. While we recognize the economic
importance of queen conch to fishing communities, we cannot consider
social, economic, or cultural impacts that may stem from a species'
listing when determining whether to list that species under the ESA.
Additionally, no fishing restrictions are being proposed at this time.
Listing the species as threatened under the ESA does not automatically
establish any take prohibitions, which would apply if the species were
listed as endangered. However, based on our review of the current
population trends of the species and the inadequacy of existing
regulations to control the ongoing threat of overutilization, we intend
to propose protective regulations pursuant to section 4(d) for queen
conch in a future rulemaking. A future rulemaking on protective
regulations will include an opportunity for additional public comment,
including any comments related to the economic importance of queen
conch. We will also develop a recovery plan for queen conch to identify
actions and establish goals for conserving and recovering the species.
The development of the recovery plan will also include an opportunity
for public comment.
Comment 41: Several commenters pointed out that exports of queen
conch out of their jurisdictions are already highly regulated and that
the level of exports comply with CITES regulations to ensure
sustainable resource use. Many of these commenters also mentioned that
exports were primarily distributed to the United States and therefore
U.S. law should not create any additional regulations that will inhibit
exports of queen conch from their jurisdictions.
Response: In making our listing determination, we reviewed the best
scientific and commercial data available and ultimately concluded that
the species warrants listing as a threatened species under the ESA.
Foreign regulatory measures and actions of other stakeholders,
including a detailed analysis of management measures by jurisdiction,
were considered during our determination. In the proposed rule, we
reviewed existing regulatory measures and concluded that existing
regulations are inadequate to control the ongoing threats of
overutilization and climate change. We determined that despite CITES
measures to ensure sustainable resource use, the species is likely to
become endangered within the foreseeable future and therefore warrants
a threatened listing status. A threatened listing under the ESA does
not automatically establish any restrictions on imports into the United
States. However, as stated in our response to comment 40, we recognize
the threat of overutilization throughout the range of queen conch and
we intend to propose protective regulations pursuant to section 4(d)
for the queen conch in a future rulemaking. Such regulations, including
any potential import restrictions, will be proposed in a separate
rulemaking that will include an opportunity for additional public
comment. We will also consider any comments related to export
compliance with CITES regulations further in the subsequent rulemaking
regarding protective regulations.
Comment 42: Several commenters mentioned that consumption of queen
conch within local markets was exceptionally low and that their local
fishery was only profitable by exporting their product, while others
mentioned that local consumption was the only queen conch market that
exists. These commenters assert that fishers within local jurisdictions
do not apply sufficient fishing pressure to overharvest the species due
to limited local demand and harvesting strategies.
Response: The proposed rule identified overutilization of the
resource in the form of extraction as the primary threat to queen conch
throughout its range. Many commenters provided evidence of industrial
fishing driven by exports while others provided anecdotal evidence of
high local consumption. We agree that industrial-scale fishing is a
primary threat to the species. As we explain in the proposed rule,
fishing pressure for local consumption remains difficult to quantify
and varies considerably among locations. The high degree of impact from
industrial fishing combined with the uncertainty of subsistence fishing
efforts supports our decision to list the queen conch as threatened
throughout its range. Although the contributions of industrial,
artisanal, and IUU fishing are challenging to discretely quantify, the
status review report clearly shows that overutilization, in aggregate,
has contributed to declines in reproductive densities and fishery
failures in many jurisdictions.
Comments on Recovery Planning and Recovery Actions
Comment 43: One commenter requested that NMFS implement protective
measures that incentivize good practices instead of punishing
unsustainable practices, recognizing that a collaborative, regional
approach is essential to recover the species.
Response: We will consider these comments in a subsequent
rulemaking regarding protective regulations under section 4(d), which
will include an opportunity for additional public comment. We will also
consider these comments when we develop a recovery plan under section
4(f) of the ESA. We agree that a collaborative, regional approach is
essential to recover the species.
Comment 44: One commenter requested that NMFS take specific actions
related to the queen conch population in Florida. These requests
include: (1) limit the social, economic, and cultural impact of the ESA
listing to communities that depend on the imports, cultural
significance, and tourism associated with the species, such as in the
Florida Keys; (2) develop criteria to identify sustainable commercial
fisheries throughout the Caribbean to allow for the import, export, and
sale of commercially harvested queen conch in these fisheries; (3)
coordinate an aquaculture program to further develop the capacity of
existing operations and to promote new operations for recovery and
commercial aquaculture purposes; (4) allow for the possession of queen
conch shells, as it would be impossible to determine existing products
compared to newly extracted ones; and (5) allow for conservation
activities that are currently being carried out to continue unhindered.
Response: The actions requested by this commenter go beyond the
scope of this rule. Subsequent actions, including developing a recovery
plan, can consider these actions requested by this commenter.
Similarly, any potential take prohibitions we might develop under the
authority of ESA section 4(d) can be specifically tailored to consider
regional needs. Therefore, we will consider this comment in the context
of future actions, including recovery planning, and any separate
rulemaking we may undertake pursuant to ESA section 4(d).
Comment 45: Several commenters requested that they be consulted and
included in strategies to enhance the recovery of the species moving
forward.
Response: We thank these commenters for identifying their interest
in the recovery planning process. NMFS intends to work with regional
stakeholders to identify the most effective actions and the best
strategies to promote the recovery of the species. This will include
consultations with stakeholders and recovery planning based on the best
available information.
Comment 46: One commenter recommended that NMFS establish a
regional initiative with the following components: (1) define and
standardize
[[Page 11223]]
a queen conch assessment method; (2) standardize survey designs; (3)
develop a more robust monitoring design, ideally using electronic
monitoring; and (4) apply the developed initiative in three pilot
countries to determine effectiveness and analyze the results.
Response: We appreciate these suggestions, although they are beyond
the scope of this rule. The actions requested are appropriate for
evaluation during the recovery planning process. During the development
of the recovery plan, NMFS will consider this comment and solicit
additional information and recommendations from a variety of
stakeholders to develop effective strategies to promote the recovery of
queen conch throughout its range.
Summary of Changes From the Proposed Listing Rule
We did not receive, nor did we find, data or references that
presented substantial new information that would cause us to change our
proposed listing determination. We did however, receive nine sources of
new data (see comment 1), eight of which provided data that fit within
the range of estimates considered in the status review report (Horn et
al. 2022) and proposed rule. As stated above, the ninth new data source
provided data that was derived using experimental methodology that has
yet to be sufficiently validated and is not considered the best
scientific information available. Therefore, while the new data
contributed to our overall understanding of population dynamics and
provided more refined local density estimates for populations in
Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, San
Andres Islands in Colombia, St. Vincent and the Grenadines, and the
USVI, they did not alter the outcomes of the extinction risk analysis
nor our interpretation of risk factors across the range of the species.
After the publication of our proposed rule (87 FR 55200, September
8, 2022) and during our analysis of public comments, NMFS adopted a new
set of guidelines with regards to climate considerations during
rulemaking processes. On May 9, 2023, NMFS officially recognized
climate scenario SSP3-7.0 as the most likely predictor of future
climate conditions, and therefore the climate scenario that should be
used to evaluate climate change effects under the ESA. The proposed
rule evaluated the ESA section (4)(a)(1) factors (specifically factor
E) using the climate scenario SSP5-8.5. Climate scenario SSP3-7.0 is
characterized by emissions and temperatures rising steadily, with
carbon dioxide emissions roughly doubling and average temperatures
rising by 3.6 [deg]C from current levels by 2100. While this scenario
is more optimistic than scenario SSP5-8.5, the effects to queen conch
and the corresponding extinction analysis are equivalent, as explained
more fully below. ESA section 4(a)(1) factor E, other natural or man-
made factors affecting the continued existence of the species, was
highlighted by the SRT as one of the risk factors that was relevant to
the listing determination in that climate change is significantly
contributing to the species extinction risk in the foreseeable future,
which in this case is the year 2100. The SRT highlighted high carbon
dioxide levels, higher mean sea surface temperature, and possible
changes to the Caribbean Sea circulation patterns as major threats to
the species. The corresponding effects are predicted to include
disruption to shell formation due to acidic ambient water conditions,
negative implications on reproduction, and impacts to population-level
connectivity and recruitment, respectively. The associated extinction
analysis under climate scenario SSP5-8.5 was also conducted with the
considerations into the foreseeable future (i.e., 2100).
The climate considerations in the proposed rule represent a range
of values and were used to analyze the effects on queen conch biology
using possible trends that may occur under climate scenario SSP5-8.5.
The environmental changes anticipated within the range of the species
under climate scenario SSP3-7.0 do not alter our interpretation of
anticipated trends in the climate change risk factor, nor do they
affect our corresponding extinction analyses. Specifically, decreases
in aragonite and larval shell calcification can occur at pH levels of
7.6-7.7, which are projected to occur by 2100 under climate scenario
SSP3-7.0 due to elevated carbon dioxide levels. The anticipated mean
sea surface temperature increases under scenario SSP3-7.0 are within
the range evaluated in the status review report of 1.1-6.4 [deg]C;
thus, changes in reproductive biology are still anticipated.
Additionally, the increase in water temperatures and its effects on
circulation patterns in the Caribbean anticipated under climate
scenario SSP3-7.0 are not substantively different from those considered
in the proposed rule under SSP5-8.5, with similar impacts to conch
connectivity and recruitment. Thus, the conclusions contained in the
status review and determinations based on those conclusions in the
proposed rule are reaffirmed in this final action.
ESA Section 4(a)(1) Factors Affecting the Queen Conch
As stated previously and as discussed in the proposed rule (87 FR
55200, September 8, 2022), we considered whether any one or a
combination of the five threat factors specified in section 4(a)(1) of
the ESA is contributing to the extinction risk of the queen conch.
Several commenters provided additional information related to threats,
such as overutilization, IUU fishing, inadequate regulatory mechanisms,
and climate considerations. The information provided was consistent
with or reinforced information in the status review and proposed rule,
and thus, did not change our conclusions regarding any of the section
4(a)(1) factors or their interactions. Therefore, we incorporate and
affirm herein all information, discussion, and conclusions regarding
the factors affecting the queen conch from the status review report
(Horn et al. 2022) and the proposed rule (87 FR 55200, September 8,
2022).
Protective Efforts
In addition to regulatory measures (e.g., fishing regulations,
seasonal closures, spatial closures, etc.), we considered other efforts
being made to protect the queen conch. We assessed whether such
protective efforts altered the conclusions of the extinction risk
analysis for the species; however, none of the information we received
on the proposed rule affected our prior conclusions regarding
conservation efforts to protect the queen conch. Therefore, we
incorporate and affirm herein all information, discussion, and
conclusions on the extinction risk of the queen conch in the status
review report (Horn et al. 2022) and proposed rule (87 FR 55200,
September 8, 2022).
Final Listing Determination
We reviewed the best available scientific and commercial
information, including the information in the status review report
(Horn et al. 2022). Based on the status review report, our evaluation
of protective efforts, and consideration of all public comments, we
determine that the queen conch meets the definition of a threatened
species under the ESA. We find that the queen conch is in danger of
extinction in the foreseeable future throughout all of its range as a
result of ESA section 4(a)(1) factors B, D, and E. We summarize the
results of our determination as follows: (1) The most significant
threat to queen conch is overutilization; (2) Existing regulatory
mechanisms including morphometric
[[Page 11224]]
and exploitation thresholds, compliance, and enforcement are
insufficient to protect the species from growth overfishing and
poaching, including IUU fishing, throughout the Caribbean; (3) The
majority of jurisdictions are below the minimum adult density threshold
required to support mate finding (i.e., 100 adult conch/hectare). These
populations are not reproductive and unlikely to be contributing to
recruitment and population growth; (4) The species currently suffers
from low population densities and poor recruitment throughout a vast
majority of its range and experiences limited larval dispersal and
interrupted population connectivity; (5) The Caribbean region is likely
to be impacted by climate change, and those adverse impacts, while not
yet fully realized, could have devastating implications for queen conch
over the next century (i.e., by 2100). Based on the demographic risks
and threats under ESA section (4)(1)B, D, and E, we have concluded that
queen conch is likely to become an endangered species in the
foreseeable future throughout its range. However, as stated in the
proposed rule and reiterated here, we concluded that the species does
not currently have a high risk of extinction such that it warrants
listing as an endangered species due to the following: the species has
a broad distribution and still occurs throughout its geographic range
and is not confined or limited to a small geographic area; the species
does not appear to have been extirpated from any jurisdiction and can
still be found, albeit at low densities in most cases, throughout its
geographic range; and there are several jurisdictions that have queen
conch populations that are currently disproportionately contributing to
the viability of the species, such that the species is not presently at
risk of extinction. After considering efforts being made to protect the
species, we conclude that existing conservation efforts are
insufficient to alter the extinction risk. We evaluated 51 different
portions of the species range at 4 different geographic scales and
determined that none are at ``high risk'' of extinction but some are
likely to become so in the foreseeable future. Therefore, our
conclusion regarding the species' overall extinction risk does not
change based on consideration of status of the species within portions
of the species' range, and thus we find that queen conch is not
currently in danger, but is likely to become an endangered species
within the foreseeable future throughout all of its range. Accordingly,
we have determined that the queen conch warrants listing as a
threatened species under the ESA.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include the development and implementation of
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat (16
U.S.C. 1533(a)(3)(A)); and a requirement that Federal agencies consult
with NMFS under section 7 of the ESA to ensure their actions are not
likely to jeopardize the continued existence of the species or result
in adverse modification or destruction of designated critical habitat
(16 U.S.C. 1536). An endangered species automatically receives
protections against ``take'' under section 9 of the ESA. The ESA
defines take to mean ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' (16 U.S.C. 1532(19)). The ESA section 9 prohibitions do not
automatically apply to species listed as threatened; however, we may
extend any of these prohibitions to threatened species through a
regulation issued under section 4(d) of the ESA (16 U.S.C. 1533(d)).
Section 4(d) of the ESA also directs the Secretary of Commerce to
develop regulations that the Secretary ``deems necessary and advisable
to provide for the conservation of [a threatened] species.''
Recognition of the species' imperiled status through listing may also
promote conservation actions by Federal and state agencies, foreign
entities, private groups, and individuals.
Identifying ESA Section 7 Consultation Requirements
Section 7(a)(2) of the ESA (16 U.S.C. 1536(a)(2)) and joint NMFS
and USFWS regulations (50 CFR part 402) require Federal agencies to
consult with us on 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 conclude that examples of
Federal actions that may affect the queen conch include but are not
limited to: Fishery harvest and management, renewable energy projects,
discharge of pollution from point sources, non-point source pollution,
contaminated waste and plastic disposal, dredging, pile-driving,
development of water quality standards, military activities, beach
renourishment, coastal construction, and shoreline development.
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 (I)
essential to the conservation of the species and (II) 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, if such areas are determined to be 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. Designation of
critical habitat must be based on the best scientific data available
and must take into consideration the economic, national security, and
other relevant impacts of specifying any particular area as critical
habitat.
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, unless as
described in section 4(b)(6)(C), critical habitat is not then
determinable, in which case we may take an additional year to publish
the final critical habitat determination (16 U.S.C. 1533(b)(6)(C)(ii)).
In our proposal to list the queen conch, we requested information on
the identification of specific features and areas in U.S. waters that
may meet the definition of critical habitat for the queen conch (87 FR
55200, September 8, 2022). We received and considered six comments that
specifically provided information to inform the determination of
critical habitat. We conclude that critical habitat is not determinable
at this time for the following reasons: (1) Sufficient information and
analysis are not currently available to assess the impacts of
designation; and (2) Sufficient information and analysis are not
currently available regarding the physical and biological features
essential to conservation. We will continue to evaluate potential
critical habitat for the queen conch, and we intend to consider
critical habitat for this species in a separate action.
ESA Section 9 Take Prohibitions
Because we are listing the queen conch as threatened, the
prohibitions under section 9 of the ESA will not automatically apply to
this species. As described below, ESA section 4(d) leaves it to the
Secretary's discretion whether, and to what extent, to extend the
section 9(a) prohibitions to threatened species, and authorizes us to
issue regulations that are deemed
[[Page 11225]]
necessary and advisable to provide for the conservation of the species.
Protective Regulations Under Section 4(d) of the ESA
As discussed previously, NMFS has flexibility under section 4(d) to
tailor protective regulations based on the needs of and threats to the
species. Section 4(d) protective regulations may prohibit, with respect
to threatened species, some or all of the acts which section 9(a) of
the ESA prohibits with respect to endangered species. We are not
proposing such regulations at this time, but may consider potential
protective regulations pursuant to section 4(d) for the queen conch in
a future rulemaking.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review. The primary
purpose of the Bulletin is to improve the quality and credibility of
scientific information disseminated by the Federal government by
requiring peer review. To satisfy our requirements under the Bulletin,
we solicited peer review comments on the draft status review report
from three scientists with specific knowledge regarding queen conch. We
received and reviewed comments from these scientists, and, prior to
publication of the proposed rule, their comments were incorporated into
the status review report (Horn et al. 2022), which was then made
available for public comment. Peer reviewer comments on the status
review report are available at https://www.noaa.gov/organization/information-technology/information-quality-peer-review-id425.
Information Solicited
Subsequent to this listing, as required by ESA, we will evaluate
whether any locations within U.S. waters meet the definition of
critical habitat for queen conch and designate any critical habitat as
appropriate. We request interested persons to submit relevant
information related to the identification of critical habitat and
essential physical or biological features for this species, as well as
economic or other relevant impacts of designation of critical habitat
for the queen conch. Physical and biological features essential to the
conservation of the species include, but are not limited to, features
specific to queen conch habitats and life history characteristics
within the following general categories: (1) space for individual
growth and for normal behavior; (2) food, water, air, light, minerals,
or other nutritional or physiological requirements; (3) cover or
shelter; (4) sites for reproduction and development of offspring; and
(5) habitats that are protected from disturbance or are representative
of the historical, geographical, and ecological distributions of the
species.
In addition, while we are not proposing any protective regulations
under section 4(d) at this time, we intend to propose protective
regulations to conserve queen conch throughout its range in the future.
These regulations may prohibit for the threatened queen conch one or
more of the acts prohibited by section 9(a)(1) of the ESA for
endangered species. Examples of measures that may be included in
protective regulations include prohibiting the import, export, or take
of the species and also specifying conditions under which import,
export, or take of the species may be allowed. We solicit information
to inform this determination and the development of any protective
regulations for the queen conch. In addition to information on the
potential conservation benefits of particular protective regulations,
we solicit input on the associated cultural and socio-economic impacts
that those regulatory measures may produce. Information on these topics
may be submitted from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party directly to us (see ADDRESSES).
References
A complete list of the references used in this final rule, and the
corresponding proposed rule, is available upon request, and also
available at: https://www.fisheries.noaa.gov/species/queen-conch.
Classification
National Environmental Policy Act (NEPA)
The 1982 amendments to the ESA in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 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 accordance with E.O. 13132, agencies are required to take into
account any federalism impacts of regulations under development. This
Executive Order includes specific consultation directives for
situations where a regulation will preempt state law, or impose
substantial direct compliance costs on state and local governments
(unless required by statute). Neither of those circumstances is
applicable to this final listing determination. 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 was provided to the relevant agencies in each state in
which the subject species occurs, and these agencies were invited to
comment. Their comments were addressed with other comments in the
Public Comments and Our Responses section.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: February 8, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, we amend 50 CFR part 223
as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, in the table in paragraph (e), under the
subheading ``Molluscs,'' add an entry for ``Conch,
[[Page 11226]]
queen'' in alphabetical order by common name to read as follows:
Sec. 223.102 Enumeration of endangered marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
---------------------------------------------------------------------------------------- Citation(s) for
Description of listed listing Critical habitat ESA rules
Common name Scientific name entity determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Molluscs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Conch, queen................ Aliger gigas................ Entire species............. [Insert Federal NA................. NA.
Register citation]
February 14, 2024.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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\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. 2024-02966 Filed 2-13-24; 8:45 am]
BILLING CODE 3510-22-P