[Federal Register Volume 89, Number 35 (Wednesday, February 21, 2024)]
[Rules and Regulations]
[Pages 12980-12986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03162]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 240208-0039; RTID 0648-XR118]
Endangered and Threatened Wildlife and Plants; Final Rule To List
the Atlantic Humpback Dolphin as an Endangered Species Under the
Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, are issuing a final rule to list the Atlantic
humpback dolphin (Sousa teuszii) as endangered under the Endangered
Species Act (ESA), in response to a petition from the Animal Welfare
Institute, the Center for Biological Diversity, and VIVA Vaquita. We
have reviewed the status of the Atlantic humpback dolphin, 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 publication of the proposed rule. Based on
all of this information, we have determined that the Atlantic humpback
dolphin warrants listing as an endangered species. We will not
designate critical habitat for this species, because the geographical
areas occupied by this species are entirely outside U.S. jurisdiction.
DATES: This final rule is effective March 22, 2024.
ADDRESSES: References and documents supporting this final rule are
available online at: https://www.fisheries.noaa.gov/species/atlantic-humpback-dolphin#conservation-management, or may be obtained by
contacting Heather Austin, Endangered Species Conservation Division,
NMFS Office of Protected Resources (F/PR3), 1315 East West Highway,
Silver Spring, MD 20910. Public comments are available online at
https://www.regulations.gov, search docket number NOAA-NMFS-2021-0110
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results).
FOR FURTHER INFORMATION CONTACT: Heather Austin, NMFS Office of
Protected Resources, [email protected], 301-427-8422.
SUPPLEMENTARY INFORMATION:
Background
On September 8, 2021, we received a petition from the Animal
Welfare Institute, the Center for Biological Diversity, and VIVA
Vaquita to list the Atlantic humpback dolphin (Sousa teuszii) as a
threatened or endangered species under the ESA. On December 2, 2021, we
published a 90-day finding for the Atlantic humpback dolphin with our
determination that the petition presented substantial scientific or
commercial information indicating that the petitioned action may be
warranted (86 FR 68452). We also announced the initiation of a status
review of the species, as required by section 4(b)(3)(A) of the ESA,
and requested information to inform the agency's decision on whether
this species warrants listing as endangered or threatened under the
ESA. On April 7, 2023, we published a proposed rule to list the
Atlantic humpback dolphin as endangered (88 FR 20829). We requested
public comments on the information in the proposed rule and associated
status review during a 60-day public comment period, which closed on
June 6, 2023.
Following publication of the proposed rule (88 FR 20829), we became
aware of cartographic guidance bulletin 38, issued by the Department of
State's Office of the Geographer and Global Issues on December 16,
2020, and determined that the preamble to our proposed rule was not in
alignment with the guidance. Thus, we issued a correction notice to
remove all references to ``Western Sahara'' from the proposed rule's
preamble and identify Morocco as a country within the species' range,
per the guidance (88 FR 46727). Additionally, the correction notice
included changes to the ``International Regulatory Mechanisms''
subsection of the proposed rule resulting from the inclusion of Morocco
as a range country for the Atlantic humpback dolphin (88 FR 46727). We
also reopened the public comment period for the proposed rule for an
additional 60 days, which closed on September 18, 2023, to allow the
Kingdom of Morocco, as well as any other interested person, an
opportunity to provide comments on our proposal. We found that bringing
the preamble to the proposed rule to list the Atlantic humpback dolphin
into alignment with the guidance bulletin presented good cause for
reopening the public comment period, in accordance with 50 CFR
424.16(c)(2).
This final rule provides a discussion of the public comments
received in response to the proposed rule, the correction notice, and
our final determination on the petition to list the Atlantic humpback
dolphin under the ESA.
Listing Determinations Under the ESA
We are responsible for determining whether species are threatened
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this
determination, we first consider whether a group of organisms
constitutes 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'' (16 U.S.C. 1532(16)). On
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS;
together, the Services) adopted a policy describing what constitutes a
distinct population segment (DPS) of a taxonomic species (``DPS
Policy,'' 61 FR 4722). The joint DPS Policy identifies two elements
that must be considered when identifying a DPS: (1) the discreteness of
the population segment in relation to the remainder of the taxon to
which it belongs; and (2) the significance of the population segment to
the remainder of the taxon to which it belongs.
Section 3 of the ESA defines an endangered species as any species
which is in danger of extinction throughout all or a significant
portion of its range and a threatened species as one which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range (16 U.S.C. 1532(6), 16 U.S.C.
1532(20)). Thus, we interpret an ``endangered species'' to be one that
is presently in danger of extinction. A ``threatened species,'' on the
other hand, is not presently in danger of extinction, but is likely to
become so in the foreseeable future (that is, at a later time). In
other words, the primary statutory difference between a threatened
species and an endangered species is the timing of when a species may
be in danger of extinction, either presently (endangered) or not
presently but within the foreseeable future (threatened).
Under section 4(a)(1) of the ESA and our implementing regulations,
we must determine whether any species is endangered or threatened as a
result of any one or a combination of any of the following 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
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mechanisms; or (E) other natural or manmade factors affecting its
continued existence (16 U.S.C. 1533(a)(1); 50 CFR 424.11(c)). We are
also required to make listing determinations based solely on the best
scientific and commercial data available, after conducting a review of
the species' status and after taking into account efforts, if any,
being made by any state or foreign nation (or subdivision thereof) to
protect the species (16 U.S.C. 1533(b)(1)(A)).
In assessing the extinction risk of the Atlantic humpback dolphin,
we considered demographic risk factors, such as those developed by
McElhany et al. (2000), to organize and evaluate the forms of risks.
The approach of considering demographic risk factors to help frame the
consideration of extinction risk has been used in many of our previous
status reviews (see https://www.nmfs.noaa.gov/pr/species for links to
these reviews). Under this approach, the collective condition of
individual populations is considered at the species level according to
four demographic risk factors: (1) abundance; (2) growth rate and
productivity; (3) spatial distribution and connectivity; and (4)
genetic diversity. These risk factors reflect concepts that are well-
founded in conservation biology and that individually and collectively
provide strong indicators of extinction risk.
Scientific conclusions about the overall risk of extinction faced
by the Atlantic humpback dolphin under present conditions and in the
foreseeable future are based on our evaluation of the species'
demographic risks and section 4(a)(1) threat factors. Our assessment of
overall extinction risk considered the likelihood and contribution of
each particular factor, synergies among contributing factors, and the
cumulative impact of all demographic risks and threats on the species.
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a
listing determination for a species, to take into consideration those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect the
species. Therefore, prior to making a listing determination, we also
assessed protective efforts to determine if they are adequate to
mitigate the existing threats.
Summary of Comments
In response to our request for comments on the proposed rule and
the subsequent correction notice, we received a total of 18 public
comments from non-governmental organizations, foreign governments, and
individual members of the public. All comments were supportive of the
proposed endangered listing for the Atlantic humpback dolphin and the
large majority provided no new or substantive data or information
relevant to the listing of the Atlantic humpback dolphin that was not
already considered in the status review report (Austin 2023) and
proposed rule. We have considered all public comments, and we provide
responses to all relevant issues raised by comments as summarized
below.
Comment 1: All public comments received were supportive of the
proposed listing determination for the Atlantic humpback dolphin as
endangered. A majority of these comments were general statements
expressing support for listing the Atlantic humpback dolphin as
endangered under the ESA. A few commenters described general
repercussions within the ecosystem of the coastal Atlantic waters of
western Africa, if this species went extinct. Most of these comments
were not accompanied by information or references. Several of the
comments were accompanied by information that is consistent with, or
cited directly from, our proposed rule or draft status review report
(Austin 2023).
A number of commenters reiterated information and many of the
points from the draft status review report (Austin 2023) and proposed
rule for the Atlantic humpback dolphin, notably the species small
population size, fragmented distribution, restricted range in coastal
Atlantic waters of western Africa, the severity of range-wide threats
(fisheries bycatch and human use, coastal development, and the
inadequacy of existing regulatory mechanisms to protect the dolphin),
and the need for more stringent regulations to protect the species. In
addition, a couple of commenters reiterated information from the draft
status review report (Austin 2023) and proposed rule regarding the
species' conservation efforts to date, most notably the recent
assessment by the International Union for Conservation of Nature (IUCN)
which classified the Atlantic humpback dolphin into the Red List
category of ``Critically Endangered'' in 2017, and the conservation
efforts by the Convention on the Conservation of Migratory Species of
Wild Animals (CMS or Bonn Convention) and West African Cetacean
Research and Conservation Programme (WAFCET) since the 1990s.
Several commenters also noted that this listing would: (1) help
raise awareness for the species; (2) help scientists and
conservationists protecting the Atlantic humpback dolphin to raise
funds for projects aimed at conserving this species and its habitat;
(3) foster international cooperation and facilitate increased
collaboration to improve outcomes of any conservation actions; (4)
facilitate the enhancement of legal protections in the national laws of
the species' range countries (especially relating to laws addressing
bycatch); and (5) strengthen the monitoring, control, and surveillance
regimes in each range country. Additionally, one commenter noted that
protecting this species under the ESA would help encourage commercial
farmers and industries within this species' habitat to be conscientious
about avoiding the Atlantic humpback dolphin during fishing activities,
which would hopefully lead to more sustainable and ethical fishing
practices to protect other wildlife as well.
Response: We acknowledge all of these comments in support of our
listing determination and the public interest in conserving the
Atlantic humpback dolphin.
Comment 2: We received a comment letter from a group of commenters
that stated that the final rule on fish and fish product import
provisions of the Marine Mammal Protection Act (MMPA import rule) (81
FR 54389, August 15, 2016) may help to provide external motivation for
Atlantic humpback dolphin range countries that export fish and fish
products to the United States. The commenters also provided some new
scientific and commercial information related to the threat of
fisheries bycatch to the Atlantic humpback dolphin off the coasts of
Mauritania and Senegal. Specifically, the commenters emphasized that
there are records of Atlantic humpback dolphins being bycaught off the
coasts of Mauritania and Senegal based on reports by Gascoigne et al.
(2021a, b, and c), and these reports also note that most coastal
fisheries have high overlap with this species' habitat preferences. The
commenters discussed the Marine Stewardship Council (MSC), a non-profit
organization which aims to set standards for sustainable fishing.
Fisheries that wish to demonstrate that they are well-managed and
sustainable compared to MSC's standards are assessed to evaluate
whether they meet MSC's environmental standard for sustainable fishing.
Based on the reports by Gascoigne et al. (2021a, b, and c), the coastal
fisheries in this region were unable to proceed to the next level of
the MSC's certification due in part to the potential high risk posed to
the
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Atlantic humpback dolphin and other species. Additionally, the
commenters submitted updated information on distribution, sightings,
and habitat parameters for the species within the Saloum Delta in
Senegal (specifically the preliminary results of the 2021 and 2022 S.
teuszii surveys in the Saloum Delta, Senegal) with the majority
sightings clustered in the Saloum River in the northern portion of the
delta (Minton et al. 2022). Lastly, the commenters provided information
about a male Atlantic humpback dolphin that washed ashore on the coast
of Mauritania just south of Banc d'Arguin National Park on May 10, 2013
(Bilal et al. 2023).
Response: We reviewed the scientific and commercial information
submitted by the commenters related to the threat of fisheries bycatch
to the Atlantic humpback dolphin off the coasts of Mauritania and
Senegal, and the updated information the commenters submitted on
distribution, sightings, and habitat parameters for the species within
the Saloum Delta in Senegal. While most of the material cited and/or
provided by these commenters had already been considered in our status
review report (Austin 2023) and proposed rule, we have updated our
status review report (Austin 2023) to include the new information
regarding the distribution, sightings, and habitat parameters for the
Atlantic humpback dolphin within the Saloum Delta in Senegal, from the
preliminary results of the 2021 and 2022 S. teuszii surveys in the
Saloum Delta described in Minton et al. (2022). We also incorporated
new information related to the threat of fisheries bycatch off the
coasts of Mauritania and Senegal into our status review report (Austin
2023). Additionally, we included information in our status review
report (Austin 2023) regarding a record of a male Atlantic humpback
dolphin specimen washed ashore on the coast of Mauritania just south of
Banc d'Arguin National Park on May 10, 2013 (Bilal et al. 2023). We
find that although this new information does not alter our previous
conclusions regarding the threat of bycatch in this region, it further
supports our endangered listing determination for this species.
Comment 3: Some commenters expressed strong support for our
conclusion that the inadequacy of legal protections in the range
countries of the Atlantic humpback dolphin are contributing to a high
risk of extinction for this species. These commenters conducted a
review of the current laws and regulations in Atlantic humpback dolphin
range countries to assess if there had been any changes in the legal
framework since the CMS' Draft Single Species Action Plan (Action Plan)
was drafted in 2022. They found that the regulatory framework in place
at the time of their work on the Action Plan remains the same, with no
apparent evidence of any improvements in protections for this species
generally or from the threat of bycatch in particular. Consequently,
the commenters concluded that their findings support our conclusion in
the proposed rule regarding the inadequacy of existing regulatory
mechanisms to address the primary threats to Atlantic humpback dolphins
(i.e., bycatch and coastal development).
Additionally, these commenters refer to the discussion in the
status review report (Austin 2023) about the difficulties faced by
Senegal in enforcing its longstanding ban on monofilament nets and
noted that there is presently no indication that the country of Senegal
is making any headway on this management issue. In support of this
statement, the commenters cite an April 2023 news article from ``Voice
of America'' that discusses the threats faced by the Atlantic humpback
dolphin in Senegalese waters (see Voice of America, ``Senegal:
Critically Endangered Dolphin Threatened by Illegal Fishing Nets,''
April 11, 2023).
Response: We appreciate and acknowledge the commenters' support of
our conclusions for ESA listing criterion D (the inadequacy of existing
regulatory mechanisms), in particular regarding how the inadequacy of
legal protections in the species' range countries contributes to a high
risk of extinction for the Atlantic humpback dolphin. Additionally, we
agree that there have been no changes in the legal status quo since
these commenters initially researched and compiled the legislative
summary within the CMS' Draft Single Species Action Plan, and that
there is no indication of improved protections, in general or from the
threat of bycatch in particular, for the Atlantic humpback dolphin. As
described in our status review report (Austin 2023) and proposed rule,
regulatory mechanisms that currently exist are not adequate to address
the species' primary threats of bycatch and coastal development, due to
lack of enforcement, resources, implementation, and/or effectiveness
within each range country. Thus, we maintain our conclusion that the
inadequacy of existing regulatory mechanisms contributes to a high risk
of extinction for the Atlantic humpback dolphin.
Additionally, we note the commenters' statement that there is no
indication of improved enforcement of the monofilament net ban in
Senegalese waters. We agree that the best available scientific and
commercial data supports that conclusion. Therefore, we incorporated
this new information into our status review report (Austin 2023), and
find it further supports our endangered listing determination for the
Atlantic humpback dolphin.
Comment 4: One commenter proposed a new strategy to recover and
conserve the species via a proposed conservation policy which targets
the species' primary threat of fisheries bycatch and is predicated on
financial assistance under section 8(a) of the ESA, with an emphasis on
the Saloum Delta region of Senegal (the commenter notes that this area
houses a concentrated population of the species and Senegal already has
enacted laws focused on conservation). The commenter stated that
section 8(a) of the ESA provides the Executive Branch with discretion
to disburse monies to foreign countries to aid in the development and
management of programs ``useful for the conservation of any endangered
species'' (16 U.S.C. 1537(a)). The commenter states that NMFS should
provide financial assistance to Senegal under section 8(a) of the ESA,
in collaboration with the United States Agency for International
Development (USAID). To support this proposition, the commenter
included citations to foreign policy articles regarding the Biden
Administration's Africa strategy and USAID's Municipal Waste Recycling
Program, as well as sources discussing the use of acoustic instruments
that act as a deterrent to dolphins by allowing them to echolocate
monofilament fishing nets (i.e., pingers), which have been shown to
reduce bycatch in other dolphin species around the world.
Response: We appreciate the commenter's input and ideas for how to
advance recovery for the Atlantic humpback dolphin. However, because
this comment addresses potential future conservation efforts for the
Atlantic humpback dolphin, it is not relevant to our assessment of
extinction risk and the final listing determination for the Atlantic
humpback dolphin.
Comment 5: We received comments from two foreign countries, the
Kingdom of Morocco and the Republic of Cameroon, expressing support for
listing the Atlantic humpback dolphin as endangered under the ESA. Each
country also provided additional information regarding existing
domestic laws in their respective countries to
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protect the species. The Kingdom of Morocco submitted documentation
from its Order of the Minister of Agriculture, Maritime Fisheries,
Rural Development and Waters and Forests No. 464-23 (signed February
21, 2023), which prohibits fishing for the Atlantic humpback dolphin in
Moroccan maritime waters for a period of 25 years, beginning on June 1,
2023. The Republic of Cameroon submitted documentation from their
Ministry of Forestry and Wildlife ``Establishing the Modality of the
Distribution of Animal Species in Protected Classes,'' which lists the
Atlantic humpback dolphin, along with four other marine mammal species,
as a legally protected species within the waters of Cameroon
(Arr[ecirc]t[eacute] N[deg]0053/Ministry of Forestry and Wildlife
(MINFOF), passed on April 1, 2020).
A separate public comment also reiterated information provided by
the Kingdom of Morocco, and noted that recent efforts have been made by
the Kingdom of Morocco to help mitigate threats to the species by
highlighting that the prohibition of any harmful act towards the
species in Moroccan maritime waters has been established for a period
of 25 years. The commenter also agreed with our proposal to list the
species as endangered under the ESA and our issuance of the correction
notice to include Morocco as a country within the species' range.
Response: We appreciate these comments from the Kingdom of Morocco
and the Republic of Cameroon supporting our Atlantic humpback dolphin
listing determination. Additionally, we reviewed the supporting
documentation regarding legal protections afforded to the species in
these two countries and incorporated this new information into the
status review report (Austin 2023). While we acknowledge that the
Kingdom of Morocco and Republic of Cameroon have legal protections in
place for the Atlantic humpback dolphin, these countries are only two
of the four (out of 19) range countries that have specific protections
for the Atlantic humpback dolphin, and effective bycatch mitigation has
not been documented in most range countries. This is a serious concern,
given that bycatch is considered linked to the species' population
decline and poses an immediate range-wide threat. Additionally, because
Morocco's prohibition is new (i.e., it became effective on June 1,
2023), we cannot yet gauge its effectiveness in protecting the Atlantic
humpback dolphin in Moroccan maritime waters. As described in our
status review report (Austin 2023) and proposed rule, regulatory
mechanisms that currently exist throughout the majority of the species'
range are not adequate to address the species' primary threats of
bycatch and coastal development, due to lack of enforcement, resources,
implementation, and/or effectiveness within most range countries.
Additionally, government agencies in many range countries lack the
resources to effectively monitor and mitigate threats and to design and
implement research and conservation measures specific to the Atlantic
humpback dolphin. As such, we ranked ESA listing criterion D (the
inadequacy of existing regulatory mechanisms) as a ``high'' level
threat, particularly due to lack of enforcement, resources,
implementation, and/or effectiveness within each range country. We
maintain our conclusion that inadequacy of existing regulatory
mechanisms contributes to a high risk of extinction for the Atlantic
humpback dolphin. Therefore, we conclude the new information regarding
legal protections afforded to the Atlantic humpback dolphin provided by
the Kingdom of Morocco and the Republic of Cameroon does not alter our
conclusion that the Atlantic humpback dolphin meets the definition of
an endangered species under the ESA.
Summary of Changes From the Proposed Listing Rule
We did not receive, nor did we find, data or references that
presented substantial new information to change our proposed listing
determination. We did, however, make some revisions to the status
review report (Austin 2023) to incorporate, as appropriate, relevant
information that we received in response to our request for public
comments or identified ourselves. Specifically, we updated the status
review report (Austin 2023) to include new information regarding the
distribution, sightings, and habitat parameters for the Atlantic
humpback dolphin within the Saloum Delta in Senegal and information
about the male Atlantic humpback dolphin that washed ashore on the
coast of Mauritania. We also updated the status review report (Austin
2023) to include new information related to the threat of fisheries
bycatch off the coasts of Mauritania and Senegal. Lastly, we
incorporated into our status review report (Austin 2023) additional
information regarding existing domestic laws from the Kingdom of
Morocco and the Republic of Cameroon that protect the Atlantic humpback
dolphin in these countries' waters.
Status Review
The status review for the Atlantic humpback dolphin was completed
by NMFS staff from the Office of Protected Resources. To complete the
status review, we compiled the best scientific and commercial data
available on the species' biology, ecology, life history, threats, and
conservation status by examining the petition and cited references, and
by conducting a comprehensive literature search and review. We also
considered information submitted to us in response to our petition
finding. The draft status review report (Austin 2023) was subjected to
independent peer review as required by the Office of Management and
Budget Final Information Quality Bulletin for Peer Review (M-05-03,
December 16, 2004). The draft status review report (Austin 2023) was
peer reviewed by four independent scientists selected from the academic
and scientific community with expertise in cetacean biology,
conservation, and management, and with specific knowledge of the
Atlantic humpback dolphin. The peer reviewers were asked to evaluate
the adequacy, appropriateness, and application of data used in the
draft status review report (Austin 2023) as well as the findings made
in the ``Extinction Risk Analysis'' section of the report. All peer
reviewer comments were addressed prior to finalizing the draft status
review report (Austin 2023) that was subsequently made available to the
public at the proposed rule stage.
We subsequently reviewed the status review report (Austin 2023),
and its cited references, and we find the status review report (Austin
2023), upon which the proposed and final rules are based, provides the
best available scientific and commercial data on the Atlantic humpback
dolphin. All peer reviewer comments are available online at: https://www.noaa.gov/information-technology/endangered-species-act-status-review-report-atlantic-humpback-dolphin-sousa-teuszii-id447. The final
status review report (cited as Austin 2023) is available online at:
https://www.fisheries.noaa.gov/species/atlantic-humpback-dolphin#conservation-management.
ESA Section 4(a)(1) Factors Affecting the Atlantic Humpback Dolphin
As stated previously and as discussed in the proposed rule (88 FR
20829, April 7, 2023), 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 Atlantic humpback dolphin. A
few commenters provided additional
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information related to threats such as fisheries bycatch and the
inadequacy of existing regulatory mechanisms in a number of Atlantic
humpback dolphin range countries. The information provided was
consistent with or reinforced information in the status review report
(Austin 2023) and proposed rule, and thus did not change our
conclusions regarding any of the section 4(a)(1) factors. Therefore, we
incorporate and affirm herein all information, discussion, and
conclusions regarding the factors affecting the Atlantic humpback
dolphin from the final status review report (Austin 2023) and the
proposed rule (88 FR 20829, April 7, 2023).
Extinction Risk
As discussed previously, the status review evaluated the
demographic risks to the Atlantic humpback dolphin according to four
categories: (1) abundance; (2) growth rate and productivity; (3)
spatial distribution and connectivity; and (4) genetic diversity (see
McElhany et al. (2000)). As a concluding step, after considering the
best available information regarding demographic and other threats to
the species, we rated the species' extinction risk according to a
qualitative scale (high, moderate, and low risk). While we updated our
status review report (Austin 2023) as described above (see Summary of
Changes from the Proposed Listing Rule) with (1) the latest threat
information for the Atlantic humpback dolphin, (2) information on
distribution, sightings, and habitat parameters for the species within
Senegal, and (3) information about the male Atlantic humpback dolphin
which washed ashore on the coast of Mauritania, none of the comments or
information we received on the proposed rule changed the outcome of our
extinction risk analysis for the species. As such, our conclusions
regarding extinction risk for the Atlantic humpback dolphin remain the
same. Therefore, we incorporate and affirm, herein, all information,
discussion, and conclusions on the extinction risk of the Atlantic
humpback dolphin in the final status review report (Austin 2023) and
proposed rule (88 FR 20829, April 7, 2023).
Protective Efforts
In addition to regulatory measures (e.g., fishing and gillnet
regulations and domestic laws), we considered other efforts being made
to protect the Atlantic humpback dolphin. We considered whether such
protective efforts altered the conclusions of the extinction risk
analysis for this species; however, none of the information we received
on the proposed rule affected our conclusions regarding conservation
efforts to protect the dolphin. Therefore, we incorporate and affirm
herein all information, discussion, and conclusions on the protective
efforts of the Atlantic humpback dolphin in the final status review
report (Austin 2023) and proposed rule (88 FR 20829, April 7, 2023).
Final Listing Determination
We summarize the factors supporting our final listing determination
as follows: (1) the best scientific and commercial data available
indicates that the species has a low abundance, with fewer than 3,000
dolphins likely remaining, with observed or suspected population
declines increasing the risk of local extirpation for extremely small
stocks (e.g., Dakhla Bay and Angola) in the near future; (2) continued
declines in abundance are expected given the ongoing and projected
increase of identified range-wide threats (specifically, fisheries
bycatch and coastal development), suggesting that the species will
continue to decline in the absence of interventions; (3) the Atlantic
humpback dolphin has a fragmented distribution with limited
connectivity between stocks; (4) the Atlantic humpback dolphin has a
restricted geographic range, being endemic to the tropical and
subtropical waters along the Atlantic African coast where ongoing
habitat destruction (including coastal development) contributes to a
high risk of extinction; (5) the species' preference for nearshore
habitat increases its vulnerability to incidental capture (i.e.,
fisheries bycatch) which also contributes to a high risk of extinction;
and (6) existing regulatory mechanisms are inadequate for addressing
the most important threats of fisheries bycatch and coastal
development.
As a result of the foregoing findings, which are based on the best
scientific and commercial data available, as summarized herein, in our
proposed rule (88 FR 20829, April 7, 2023), and in the status review
report (Austin 2023), and after consideration of protective efforts, we
find that the Atlantic humpback dolphin is presently in danger of
extinction throughout its range. Therefore, we find that the Atlantic
humpback dolphin meets the definition of an endangered species under
the ESA and list it as such.
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, if
prudent and determinable (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 species or result
in adverse modification or destruction of designated critical habitat
(16 U.S.C. 1536). For endangered species, protections also include
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is
defined as 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)). Recognition of the species' imperiled status through
listing may also promote conservation actions by Federal and state
agencies, foreign entities, private groups, and individuals.
Activities That Would Constitute a Violation of Section 9 of the ESA
On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service
(USFWS) published a policy (59 FR 34272) that requires us to identify,
to the maximum extent practicable, at the time a species is listed,
those activities that would or would not constitute a violation of
section 9 of the ESA. The intent of this policy is to increase public
awareness of the potential effects of species listings on proposed and
ongoing activities.
Because we are listing the Atlantic humpback dolphin as endangered,
all of the prohibitions of section 9(a)(1) of the ESA will apply to
this species. Section 9(a)(1) includes prohibitions against the import,
export, use in foreign commerce, and ``take'' of the listed species.
These prohibitions apply to all persons subject to the jurisdiction of
the United States, including all persons in the United States or its
territorial sea, and U.S. citizens on the high seas. Activities that
could result in a violation of section 9 prohibitions for Atlantic
humpback dolphins include, but are not limited to, the following:
(1) Delivering, receiving, carrying, transporting, or shipping in
interstate or foreign commerce any Atlantic humpback dolphin or any of
its parts, in the course of a commercial activity;
(2) Selling or offering for sale in interstate or foreign commerce
any part of an Atlantic humpback dolphin, except antique articles at
least 100 years old; and
(3) Importing or exporting Atlantic humpback dolphins or any parts
of these dolphins.
Whether a violation results from a particular activity is entirely
dependent upon the facts and circumstances of each incident. Further,
an activity not
[[Page 12985]]
listed here may in fact constitute a violation of the ESA.
Identification of Those Activities That Would Not Likely Constitute a
Violation of Section 9 of the ESA
Although the determination of whether any given activity
constitutes a violation is fact dependent, we consider the following
actions, depending on the circumstances, as being unlikely to violate
the prohibitions in ESA section 9 with regard to Atlantic humpback
dolphins: (1) take authorized by, and carried out in accordance with
the terms and conditions of, an ESA section 10(a)(1)(A) permit issued
by NMFS for purposes of scientific research or the enhancement of the
propagation or survival of the species; and (2) continued possession of
Atlantic humpback dolphins or any parts that were in possession at the
time of listing. Such parts may be non-commercially exported or
imported; however, the importer or exporter must be able to provide
evidence to show that the parts meet the criteria of ESA section
9(b)(1) (i.e., held in a controlled environment at the time of listing,
in a non-commercial activity).
Identifying Section 7 Consultation Requirements
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and joint NMFS/
USFWS regulations require Federal agencies to consult with NMFS to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of listed species or
destroy or adversely modify critical habitat. It is unlikely that the
listing of the Atlantic humpback dolphin under the ESA will increase
the number of section 7 consultations because this species occurs
outside of the United States and is unlikely to be affected by U.S.
Federal actions.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(5)) as: (1) the specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, on which are found those physical or biological features (a)
essential to the conservation of the species and (b) which may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring an endangered or threatened
species to the point at which listing under the ESA is no longer
necessary. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A))
requires that, to the extent prudent and determinable, critical habitat
be designated concurrently with the listing of a species. However,
critical habitat cannot be designated in foreign countries or other
areas outside U.S. jurisdiction (50 CFR 424.12(g)). The Atlantic
humpback dolphin is endemic to coastal Atlantic waters of western
Africa and does not occur within areas under U.S. jurisdiction, which
are well outside the natural range of this species. Therefore, we are
not designating critical habitat for this species.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation. The OMB Bulletin implemented under the Information
Quality Act (Pub. L. 106-554), is intended to enhance the quality and
credibility of the Federal Government's scientific information, and
applies to influential scientific information or highly influential
scientific assessments disseminated on or after June 16, 2005. To
satisfy our requirements under the OMB Bulletin, we solicited peer
review comments on the draft status review report (Austin 2023) from
four independent scientists selected from the academic and scientific
community with expertise on cetaceans in general and specific knowledge
regarding the Atlantic humpback dolphin in particular. We received and
reviewed comments from these scientists and, prior to publication of
the proposed rule, incorporated their comments into the draft status
review report (Austin 2023), which was then made available for public
comment. As stated earlier, peer reviewer comments on the status review
report (Austin 2023) are available online at: https://www.noaa.gov/information-technology/endangered-species-act-status-review-report-atlantic-humpback-dolphin-sousa-teuszii-id447.
References
A complete list of the references used is available upon request
(see FOR FURTHER INFORMATION CONTACT).
Classification
National Environmental Policy Act
Section 4(b)(1)(A) of the ESA restricts the information that may be
considered when assessing species for listing and sets the basis upon
which listing determinations must be made. Based on the requirements in
section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal
Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded
that ESA listing actions are not subject to the environmental
assessment requirements of the National Environmental Policy Act.
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, we determined that this final rule
does not have significant federalism effects and that a federalism
assessment is not required. Given that this species occurs entirely
outside of U.S. waters, there will be no federalism impacts because
listing the species will not affect any state programs.
List of Subjects in 50 CFR Part 224
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: February 12, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, the National Marine
Fisheries Service amends 50 CFR part 224 as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C 1361 et seq.
0
2. In Sec. 224.101, amend the table in paragraph (h) by adding an
entry for
[[Page 12986]]
``Dolphin, Atlantic humpback'' in alphabetical order by common name
under ``Marine Mammals'' to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous
species.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
-------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
Dolphin, Atlantic humpback.... Sousa teuszii.... Entire species.. [Insert Federal NA NA
Register page where
the document
begins], 2/21/2024.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2024-03162 Filed 2-20-24; 8:45 am]
BILLING CODE 3510-22-P