Endangered and Threatened Wildlife and Plants: Listing the Queen Conch as Threatened Under the Endangered Species Act (ESA)

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 223</CFR> <DEPDOC>[Docket No. 240208-0042; RTID 0648-XR071]</DEPDOC> <SUBJECT>Endangered and Threatened Wildlife and Plants: Listing the Queen Conch as Threatened Under the Endangered Species Act (ESA)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, NMFS, are listing the queen conch ( <E T="03">Aliger gigas,</E> formerly known as <E T="03">Strombus gigas</E> ) 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on March 15, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Public comments that were submitted on the proposed rule to list queen conch are available at <E T="03">https://www.regulations.gov</E> identified by docket number NOAA-NMFS-2019-0141. A list of references cited in this final rule and other supporting materials are available at: <E T="03">https://www.fisheries.noaa.gov/species/queen-conch,</E> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Orian Tzadik, NMFS Southeast Regional Office, (813) 906-0353-C; or <E T="03">Orian.Tzadik@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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 <E T="04"> Federal Register </E> (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 <E T="04">Federal Register</E> (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 <E T="03">Desert Survivors</E> v. <E T="03">U.S. Dep't of Interior,</E> 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 <E T="03">et al.</E> 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. <HD SOURCE="HD1">Listing Determinations Under the ESA</HD> We are responsible for determining whether the queen conch is threatened or endangered under the ESA (16 U.S.C. 1531 <E T="03">et seq.</E> ). 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 136k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━