Endangered and Threatened Wildlife and Plants; Final Rule To List the Atlantic Humpback Dolphin as an Endangered Species Under the Endangered Species Act

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 224</CFR> <DEPDOC>[Docket No. 240208-0039; RTID 0648-XR118]</DEPDOC> <SUBJECT>Endangered and Threatened Wildlife and Plants; Final Rule To List the Atlantic Humpback Dolphin as an Endangered Species Under the Endangered Species Act</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 issuing a final rule to list the Atlantic humpback dolphin ( <E T="03">Sousa teuszii</E> ) 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective March 22, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> References and documents supporting this final rule are available online at: <E T="03">https://www.fisheries.noaa.gov/species/atlantic-humpback-dolphin#conservation-management,</E> 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 <E T="03">https://www.regulations.gov,</E> search docket number NOAA-NMFS-2021-0110 (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Heather Austin, NMFS Office of Protected Resources, <E T="03">Heather.Austin@noaa.gov,</E> 301-427-8422. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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 ( <E T="03">Sousa teuszii</E> ) 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. <HD SOURCE="HD2">Listing Determinations Under the ESA</HD> We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 <E T="03">et seq.</E> ). 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 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 <E T="03">et al.</E> (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 <E T="03">https://www.nmfs.noaa.gov/pr/species</E> 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. <HD SOURCE="HD2">Summary of Comments</HD> 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 w ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 46k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━