81_FR_88875 81 FR 88639 - Endangered and Threatened Wildlife and Plants: Notice of 12-Month Finding on a Petition To List the Gulf of Mexico Bryde's Whale as Endangered Under the Endangered Species Act (ESA)

81 FR 88639 - Endangered and Threatened Wildlife and Plants: Notice of 12-Month Finding on a Petition To List the Gulf of Mexico Bryde's Whale as Endangered Under the Endangered Species Act (ESA)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 236 (December 8, 2016)

Page Range88639-88656
FR Document2016-29412

We, NMFS, announce a 12-month finding and listing determination on a petition to list the Gulf of Mexico Bryde's whale (Balaenoptera edeni) as threatened or endangered under the Endangered Species Act (ESA). We have completed a Status Review report of the Gulf of Mexico Bryde's whale in response to a petition submitted by the Natural Resources Defense Council. After reviewing the best scientific and commercial data available, including the Status Review report, and consulting with the Society for Marine Mammology's Committee on Taxonomy, we have determined that the Gulf of Mexico Bryde's whale is taxonomically a subspecies of the Bryde's whale thus meeting the ESA's definition of a species. Based on the Gulf of Mexico Bryde's whale's small population (likely fewer than 100 individuals), its life history characteristics, its extremely limited distribution, and its vulnerability to existing threats, we believe that the species faces a high risk of extinction. Based on these considerations, described in more detail within this action, we conclude that the Gulf of Mexico Bryde's whale is in danger of extinction throughout all of its range and meets the definition of an endangered species. We are soliciting information that may be relevant to inform both our final listing determination and designation of critical habitat.

Federal Register, Volume 81 Issue 236 (Thursday, December 8, 2016)
[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Proposed Rules]
[Pages 88639-88656]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-29412]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 141216999-6999-02]
RIN 0648-XD669


Endangered and Threatened Wildlife and Plants: Notice of 12-Month 
Finding on a Petition To List the Gulf of Mexico Bryde's Whale as 
Endangered Under the Endangered Species Act (ESA)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: We, NMFS, announce a 12-month finding and listing 
determination on a petition to list the Gulf of Mexico Bryde's whale 
(Balaenoptera edeni) as threatened or endangered under the Endangered 
Species Act (ESA). We have completed a Status Review report of the Gulf 
of Mexico Bryde's whale in response to a petition submitted by the 
Natural Resources Defense Council. After reviewing the best scientific 
and commercial data available, including the Status Review report, and 
consulting with the Society for Marine Mammology's Committee on 
Taxonomy, we have determined that the Gulf of Mexico Bryde's whale is 
taxonomically a subspecies of the Bryde's whale thus meeting the ESA's 
definition of a species. Based on the Gulf of Mexico Bryde's whale's 
small population (likely fewer than 100 individuals), its life history 
characteristics, its extremely limited distribution, and its 
vulnerability to existing threats, we believe that the species faces a 
high risk of extinction. Based on these considerations, described in 
more detail within this action, we conclude that the Gulf of Mexico 
Bryde's whale is in danger of extinction throughout all of its range 
and meets the definition of an endangered species. We are soliciting 
information that may be relevant to inform both our final listing 
determination and designation of critical habitat.

DATES: Information and comments on the subject action must be received 
by January 30, 2017. For the specific date of the public hearing, see 
Public Hearing section.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2014-0101 by any of the 
following methods:
     Electronic submissions: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0101, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments;
     Mail: NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701;
     Hand delivery: You may hand deliver written information to 
our office during normal business hours at the street address given 
above.
    The Status Review of Bryde's Whales in the Gulf of Mexico (Rosel et 
al., 2016) and reference list are available by submitting a request to 
the Species Conservation Branch Chief, Protected Resources Division, 
NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701-5505, Attn: Bryde's Whale 12-month Finding. The Status Review 
report and references are also available electronically at: http://sero.nmfs.noaa.gov/protected_resources/listing_petitions/index.html.

FOR FURTHER INFORMATION CONTACT: Laura Engleby or Calusa Horn, NMFS, 
Southeast Regional Office (727) 824-5312 or Marta Nammack, NMFS, Office 
of Protected Resources (301) 427-8469.

SUPPLEMENTARY INFORMATION:

Background

    On September 18, 2014, we received a petition from the Natural 
Resources Defense Council to list the Gulf of

[[Page 88640]]

Mexico population of Bryde's whale (Balaenoptera edeni) as an 
endangered species. The petition asserted that the Bryde's whale in the 
Gulf of Mexico is endangered by at least three of the five ESA section 
4(a)(1) factors: present or threatened destruction, modification, or 
curtailment of habitat or range; inadequacy of existing regulatory 
mechanisms; and other natural or manmade factors affecting its 
continued existence. The petitioner also requested that critical 
habitat be designated concurrent with listing under the ESA.
    On April 6, 2015, we published a 90-day finding that the petition 
presented substantial scientific and commercial information indicating 
that the petitioned action may be warranted (80 FR 18343). At that 
time, we announced the initiation of a formal status review and 
requested scientific and commercial information from the public, 
government agencies, scientific community, industry, and any other 
interested parties on the delineation of, threats to, and the status of 
the Bryde's whale in the Gulf of Mexico including: (1) Historical and 
current distribution, abundance, and population trends; (2) life 
history and biological information including adaptations to ecological 
settings, genetic analyses to assess paternal contribution and 
population connectivity, and movement patterns to determine population 
mixing; (3) management measures and regulatory mechanisms designed to 
protect the species; (4) any current or planned activities that may 
adversely impact the species; and (5) ongoing or planned efforts to 
protect and restore the species and habitat. We received eight public 
comments in response to the 90-day finding, with the majority of 
comments in support of the petition. The public provided relevant 
scientific literature to be considered in the Status Review report as 
well as a recently developed density model and abundance estimate. 
Relevant information was incorporated in the Status Review report and 
in this proposed rule.

Listing Determinations Under the ESA

    We are responsible for determining whether the Bryde's whale in the 
Gulf of Mexico 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 
taxonomic species and ``any subspecies of fish, or wildlife, or plants, 
and any distinct population segment (DPS) of any species of vertebrate 
fish or wildlife which interbreeds when mature.'' Under NMFS 
regulations, we must rely not only on standard taxonomic distinctions, 
but also on the biological expertise of the agency and the scientific 
community, to determine if the relevant taxonomic group is a 
``species'' for purposes of the ESA (see 50 CFR 424.11). Under Section 
4(a)(1) of the ESA, we must next determine whether any species is 
endangered or threatened due to 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 (sections 4(a)(1)(A) 
through (E)).
    To determine whether the Bryde's whale population in the Gulf of 
Mexico warrants listing under the ESA, we first formed a Status Review 
Team (SRT) of seven biologists, including six NOAA Fisheries Science 
Center (Southeast, Southwest, and Northeast) and Southeast Regional 
Office personnel and one member from the Bureau of Safety and 
Environmental Enforcement--Gulf of Mexico Region, to compile and review 
the best available scientific information on Bryde's whales in the Gulf 
of Mexico and assess their extinction risk. The Status Review report 
prepared by the SRT summarizes the taxonomy, distribution, abundance, 
life history, and biology of the species, identifies threats or 
stressors affecting the status of the species, and provides a 
description of existing regulatory mechanisms and conservation efforts 
(Rosel et al., 2016). The Status Review report incorporates information 
received in response to our request for information (80 FR 18343; April 
6, 2015) and comments from three independent peer reviewers. 
Information from the Status Review report about the biology of the Gulf 
of Mexico Bryde's whale is summarized below under ``Biological 
Review.'' The Status Review report also includes a threats evaluation 
and an Extinction Risk Analysis (ERA), conducted by the SRT. The 
results of the threats evaluation are discussed below under ``Threats 
Evaluation'' and the results of the ERA are discussed below under 
``Extinction Risk Analysis.''
    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, we 
interpret an ``endangered species'' to be one that is presently in 
danger 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 presently (endangered) or in the 
foreseeable future (threatened).
    In determining whether the Gulf of Mexico population of Bryde's 
whale meets the standard of endangered or threatened, we first 
determined that, based on the best scientific and commercial data 
available, the Gulf of Mexico Bryde's whale is a genetically distinct 
subspecies of the globally distributed Bryde's whale. We next 
considered the specific life history and ecology of the species, the 
nature of threats, the species' response to those threats, and 
population numbers and trends. We considered both the data and 
information summarized in the Status Review report, as well as the 
results of the ERA. We considered impacts of each identified threat 
both individually and cumulatively. For purposes of our analysis, the 
mere identification of factors that could impact a species negatively 
is not sufficient to compel a finding that ESA listing is appropriate. 
In considering those factors that might constitute threats, we look 
beyond mere exposure of the species to the factor to determine whether 
the species responds, either to a single threat or multiple threats, in 
a way that causes actual impacts at the species level. In making this 
finding, we have considered and evaluated the best available scientific 
and commercial information, including information received in response 
to our 90-day finding.

Biological Review

    This section provides a summary of key biological information 
presented in the Status Review report (Rosel et al., 2016), which 
provides the baseline context and foundation for our listing 
determination. The petition specifically requested that we consider the 
Gulf of Mexico population of Bryde's whale as a DPS and list that 
population as an

[[Page 88641]]

endangered species. Therefore, the SRT first considered whether the 
Bryde's whale in the Gulf of Mexico constituted a DPS, a subspecies, a 
species, or part of the globally distributed Bryde's whale population. 
This section also includes our conclusions based on the biological 
information presented in the Status Review report.

Species Description

    Bryde's whale (B. edeni) is a large baleen whale found in tropical 
and subtropical waters worldwide. Currently two subspecies of Bryde's 
whale are recognized: A smaller form, Eden's whale (B. e. edeni), found 
in the Indian and western Pacific oceans primarily in coastal waters, 
and a larger, more pelagic form, Bryde's whale (B. e. brydei), found 
worldwide. Like Bryde's whales found worldwide, the Bryde's whale in 
the Gulf of Mexico has a streamlined and sleek body shape, a somewhat 
pointed, flat rostrum with three prominent ridges (i.e., a large center 
ridge, and smaller left and right lateral ridges), a large falcate 
dorsal fin, and a counter-shaded color that is fairly uniformly-dark 
dorsally and light to pinkish ventrally (Jefferson et al., 2015). There 
is no apparent morphological difference between the Bryde's whale in 
the Gulf of Mexico and those worldwide. Baleen from these whales has 
not been thoroughly characterized, but the baleen plates from one 
individual from the Gulf of Mexico were dark gray to black with white 
bristles (Rosel et al., 2016). This is consistent with the description 
by Mead (1977), who indicated that the bristles of both Bryde's whale 
subspecies are coarser than those in the closely-related sei whale. 
Limited data (n=14) indicate the length of Bryde's whales in the Gulf 
of Mexico is intermediate with the currently recognized subspecies. The 
largest Bryde's whale observed in the Gulf of Mexico was a lactating 
female at 12.7 meters (m) in length and the next four largest animals 
were 11.2-11.6 m in length (Rosel and Wilcox 2014). Rice (1998) 
reported adult Eden's whales rarely exceed 11.5 m total length and 
adult Bryde's whales from the Atlantic, Pacific and the Indian Ocean 
reach 14.0-15.0 m in length.

Genetics

    In a recent genetic analysis of mitochondrial DNA (mtDNA) samples 
taken from Bryde's whales in the Gulf of Mexico, Rosel and Wilcox 
(2014) found that the Gulf of Mexico population was genetically 
distinct from all other Bryde's whales worldwide. Maternally inherited 
mtDNA is an indicator of population-level differentiation, as it 
evolves relatively rapidly. Rosel and Wilcox (2014) identified 25-26 
fixed nucleotide differences in the mtDNA control region between the 
Bryde's whale in the Gulf of Mexico and the two currently recognized 
subspecies (i.e., Eden's whale and Bryde's whale) and the sei whale (B. 
borealis). They found that the level and pattern of mtDNA 
differentiation discovered indicates that Gulf of Mexico Bryde's whales 
are as genetically differentiated from other Bryde's whales worldwide, 
as those Bryde's whales are differentiated from their most closely-
related species, the sei whale. In addition, genetic analysis of the 
mtDNA data and data from 42 nuclear microsatellite loci (repeating base 
pairs in the DNA) revealed that the genetic diversity within the Gulf 
of Mexico Bryde's whale population is exceedingly low. Rosel and Wilcox 
(2014) concluded that this level of genetic divergence suggests a 
unique evolutionary trajectory for the Gulf of Mexico population of 
Bryde's whale, worthy of its own taxonomic standing.
    The SRT considered this level of genetic divergence to be 
significant, indicating that the Bryde's whale in the Gulf of Mexico is 
a separate subspecies. To confirm its determination, the SRT asked the 
Society for Marine Mammalogy Committee on Taxonomy (Committee) for its 
expert scientific opinion on the level of taxonomic distinctiveness of 
the Bryde's whale in the Gulf of Mexico. The Committee maintains the 
official list of marine mammal species and subspecies for the Society 
for Marine Mammalogy. It updates the list as new descriptions of 
species, subspecies, or taxonomic actions appear in the technical 
literature, adhering to principle and procedures, opinions, and 
directions set forth by the International Commission on Zoological 
Nomenclature. The Committee also reviews, as requested, formal 
descriptions of new taxa and other taxonomic actions, and provides 
expert advice on taxonomic descriptions and other aspects of marine 
mammal taxonomy. In response to the request made by the SRT, all of the 
Committee members who responded (nine out of nine) voted it was 
``highly likely'' that Bryde's whales in the Gulf of Mexico comprise at 
least an undescribed subspecies of what is currently recognized as B. 
edeni. This result constituted the opinion of the Committee, which 
makes decisions by majority vote (W. F. Perrin, Committee Chairman 
2015). Based on the expert opinion from the Committee and the best 
available scientific information, the SRT concluded Bryde's whales in 
the Gulf of Mexico are taxonomically distinct from the other two 
Bryde's whale subspecies. The SRT identified the Bryde's whale 
occurring in the Gulf of Mexico as a separate subspecies called ``GOMx 
Bryde's whale,'' and conducted the Status Review accordingly.
    Our regulations state that, ``In determining whether a particular 
taxon or population is a species for the purpose of the Act, the 
Secretary shall rely on standard taxonomic distinctions and biological 
expertise of the Department and scientific community concerning the 
relevant taxonomic group'' (50 CFR 424.11(a)). Under this provision, we 
must consider the biological expertise of the SRT and the scientific 
community, and apply the best available science when it indicates that 
a taxonomic classification is outdated or incorrect. The GOMx Bryde's 
whale has a high level of genetic divergence from the two recognized 
Bryde's whale subspecies (Eden's whale and Bryde's whale) elsewhere in 
the world. Given this information, we relied on the biological 
expertise of the SRT and the Committee concerning the taxonomic status 
of the Bryde's whale in the Gulf of Mexico. We agree with the SRT and 
the Committee's determination that the Bryde's whale in the Gulf of 
Mexico is taxonomically at least a subspecies of B. edeni. Based on the 
best available scientific and commercial information described above 
and in the Status Review report, we have determined that the Bryde's 
whale in the Gulf of Mexico is a taxonomically distinct subspecies and, 
therefore, eligible for listing under the ESA. Accordingly, we did not 
further consider whether the Gulf of Mexico Bryde's whale population is 
a DPS under the ESA.

Distribution

    The Status Review report (Rosel et al., 2016) found that the 
historical distribution of Bryde's whale in the Gulf of Mexico included 
the northeastern, north-central and southern Gulf of Mexico. This was 
based on work by Reeves et al. (2011), which reviewed whaling logbooks 
of ``Yankee whalers'' and plotted daily locations of ships during the 
period 1788-1877 as a proxy for whaling effort, with locations of 
species takes and sightings in the Gulf of Mexico. These sightings by 
the whalers were generally offshore in deeper (e.g., >1000 m) waters, 
given their primary target of sperm whales (Physeter microcephalus). 
Reeves et al. (2011) concluded whales reported as ``finback'' by 
``Yankee whalers'' in the

[[Page 88642]]

Gulf of Mexico were most likely Bryde's whales, because Bryde's whales 
are the only baleen whales that occur in the Gulf of Mexico year-round. 
The SRT found that these data indicate that the historical distribution 
of Bryde's whales in the Gulf of Mexico was much broader and also 
included the north-central and southern Gulf of Mexico.
    Stranding records from the Southeast U.S. stranding network, the 
Smithsonian Institution, and the literature (Mead 1977, Schmidly 1981, 
Jefferson 1995) include 22 Bryde's whales strandings in the Gulf of 
Mexico from 1954-2012, although three have uncertain species 
identification. Most strandings were recorded east of the Mississippi 
River through west central Florida, but two were recorded west of 
Louisiana. There are no documented Bryde's whale strandings in Texas, 
although strandings of fin (B. physalus), sei (B. borealis), and minke 
(B. acutorostrata) whales have been documented.
    We began conducting oceanic (ship) and continental shelf (ship and 
aerial) surveys for cetaceans in 1991 that continue today. The location 
of shipboard and aerial survey effort in the Gulf of Mexico and 
Atlantic Ocean was plotted by Roberts et al. (2016). Details of Bryde's 
whale sightings from these surveys are summarized in Waring et al. 
(2015). During surveys in 1991, Bryde's whales were sighted in the 
northeastern Gulf of Mexico along the continental shelf break, in an 
area known as the De Soto Canyon. In subsequent surveys, Bryde's whales 
or whales identified as Bryde's/sei whales (i.e.., where it was not 
possible to distinguish between a Bryde's whale or a sei whale), were 
sighted in this same region of the northeastern Gulf of Mexico. When 
observers were able to clearly see the dorsal surface of the rostrum of 
at least one whale, three ridges were present, a diagnostic 
characteristic of Bryde's whales (Maze-Foley & Mullin 2006). As a 
result, our Gulf of Mexico surveys from 1991-2015 use sightings of 
Bryde's whale, Bryde's/sei whale, and baleen whale species collectively 
as the basis for estimates of Bryde's whales abundance and 
distribution. Sightings of Bryde's whales in the Gulf of Mexico have 
been consistently located in the De Soto Canyon area, along the 
continental shelf break between 100 m and 300 m depth. Bryde's whales 
have been sighted in all seasons within the De Soto Canyon area (Mullin 
and Hoggard 2000, Maze-Foley and Mullin 2006, Mullin 2007, DWH MMIQT 
2015). Consequently, LaBrecque et al. (2015) designated this area, home 
to the small resident population of Bryde's whale in the northeastern 
Gulf of Mexico, as a Biologically Important Area (BIA). BIA's are 
reproductive areas, feeding areas, migratory corridors, and areas in 
which small and resident populations are concentrated. They do not have 
direct or immediate regulatory consequences. Rather, they are intended 
to provide the best available science to help inform regulatory and 
management decisions, in order to minimize impacts from anthropogenic 
activities on marine mammals (LaBrecque et al., 2015).
    Despite the lack of sightings of Bryde's whales in the Gulf of 
Mexico outside the BIA, questions remain about their current 
distribution in U.S. waters. NMFS surveys recorded three baleen whales 
sighted outside the BIA (i.e., fin whale identified in 1992 off Texas 
and two sightings of Bryde's/sei whale in 1992 and 1994 along the shelf 
break in the western Gulf of Mexico). In addition, five records of 
`baleen whales' have been recorded from 2010 to 2014 west of the BIA, 
at the longitude of western Louisiana in depths similar to those in the 
BIA (Bureau of Safety and Environmental Enforcement, unpublished). The 
two sightings southwest of Louisiana included photographs showing they 
were clearly baleen whales. However, the information collected was not 
sufficient to identify to the species level. In 2015 a citizen sighted 
and photographed what most experts believe was a Bryde's whale in the 
western Gulf of Mexico south of the Louisiana-Texas border (Rosel et 
al., 2016). Given these observations, the SRT determined that while it 
is possible that a small number of baleen whales occur in U.S. waters 
outside the BIA, these observations in the north-central and western 
Gulf of Mexico were difficult to interpret (Rosel et al., 2016).
    Few systematic surveys have been conducted in the southern Gulf of 
Mexico (i.e., Mexico and Cuba). Six marine mammal surveys were 
conducted from 1997 to 1999 in the southern Gulf of Mexico and 
Yucat[aacute]n Channel. These surveys focused specifically in the 
extreme southern Bay of Campeche, an area where Reeves et al. (2011) 
reported numerous sightings of baleen whales from the whaling logbooks. 
A more recent survey reported a single baleen whale in an area of 
nearly 4,000 square kilometers (km\2\) (Ortega-Ortiz 2002, LaBrecque et 
al. 2015). This whale was identified as a fin whale; however, 
subsequent discussion between the author and the SRT suggested it 
should have been recorded as an unidentified baleen whale (Rosel et 
al., 2016). A compilation of all available records of marine mammal 
sightings, strandings, and captures in the southern Gulf of Mexico 
identified no Bryde's whales (Ortega-Ortiz 2002) as summarized in the 
Status Review report (Rosel et al., 2016).
    We agree with the SRT's findings that what is now recognized as the 
GOMx Bryde's whale has been consistently located over the past 25 years 
along a very narrow depth corridor in the northeastern Gulf of Mexico, 
recognized as the GOMx Bryde's whale BIA. Sightings outside this 
particular area are few, despite a large amount of dedicated marine 
mammal survey effort that included both continental shelf and oceanic 
waters of the Atlantic Ocean off the southeastern United States and the 
northern Gulf of Mexico. Historical whaling records indicate that the 
historical distribution of the GOMx Bryde's whale in the Gulf of Mexico 
was much broader than it is currently and included the north-central 
and southern Gulf of Mexico. We agree with the SRT that the BIA, 
located in the De Soto Canyon area of the northeastern Gulf of Mexico, 
encompasses the current areal distribution of GOMx Bryde's whale.

Abundance Estimates

    All of the abundance estimates for Bryde's whale in the northern 
Gulf of Mexico are based on aerial- or ship-based line-transect surveys 
(Buckland et al., 2005). Various surveys conducted from 1991 to 2012 
are discussed in the Status Review report (Rosel et al., 2016). As 
previously stated, nearly all GOMx Bryde's whale sightings occurred in 
the BIA during surveys that uniformly sampled the entire northern Gulf 
of Mexico. The Marine Mammal Protection Act abundance estimate used for 
management of the ``Northern Gulf of Mexico Bryde's Whale Stock'' is 33 
whales (coefficient of variation = 1.07; Waring et al., 2013). 
Recently, Duke University researchers estimated abundance to be 44 
individuals (coefficient of variation = .27) based on the averages of 
23 years of survey data (Roberts et al., 2015a, Roberts et al., 2016). 
No analysis has been conducted to evaluate abundance trends for GOMx 
Bryde's whale. Given the paucity of data that influences the range in 
the abundance estimates, the SRT agreed by consensus that, given the 
best available science and allowing for the uncertainty of Bryde's 
whale occurrence in non-U.S. waters of the Gulf of Mexico, most likely 
less than 100 individuals exist. For the reasons stated above, we 
concur that likely less than 100 GOMx Bryde's whales exist.

[[Page 88643]]

Behavior

    Little information exists on the behavior of GOMx Bryde's whale. 
Maze-Foley and Mullin (2006) found GOMx Bryde's whales to have a mean 
group size of 2 (range 1 -5, n = 14), similar to group sizes of the 
Eden's and Bryde's whales (Wade and Gerrodette 1993). The GOMx Bryde's 
whale is known to be periodically ``curious'' around ships and has been 
documented approaching them in the Gulf of Mexico (Rosel et al., 2016), 
as observed in Bryde's whales worldwide (Leatherwood et al. 1976, 
Cummings 1985). In September 2015, a female GOMx Bryde's whale was 
tagged with an acoustic and kinematic data-logging tag in the De Soto 
Canyon (Rosel et al., 2016). Over the nearly 3-day tagging period, the 
whale spent 47 percent of its time within 15 m of the surface during 
the day and 88 percent of its time within 15 m of the surface during 
the night (NMFS, unpublished data).

Foraging Ecology

    Little information is available on foraging ecology available for 
GOMx Bryde's whales. Based on behavior observed during assessment 
surveys, these whales do not appear to forage at or near the surface 
(NMFS, unpublished). In general, Bryde's whales are thought to feed 
primarily in the water column on schooling fish such as anchovy, 
sardine, mackerel and herring, and small crustaceans (Kato 2002). These 
prey occur throughout the Gulf of Mexico and the BIA (Grace et al. 
2010). Tracking data from the single whale with an acoustic tag 
(described above) indicated diurnal diving to depths of up to 271 m, 
with foraging lunges apparent at the deepest depths. That whale was 
likely foraging at or just above the sea floor (NMFS, unpublished data) 
where diel-vertical-migrating schooling fish form tight aggregations.

Reproduction and Growth

    Little information exists on reproduction and growth of GOMx 
Bryde's whale; however, similar to Eden's whales and Bryde's whales 
elsewhere in the world, the GOMx Bryde's whale is considered to have k-
selected life history parameters (large body size, long life 
expectancy, slow growth rate, late maturity, with few offspring). 
Taylor et al. (2007) estimated that Bryde's whales worldwide may 
reproduce every two to three years and reach sexual maturity at age 
nine. Given the basic biology of baleen whales, it is likely that under 
normal conditions, the female GOMx Bryde's whales produce a calf every 
2 to 3 years. The largest known GOMx Bryde's whale was a lactating 
female 12.6 m in length (Rosel and Wilcox 2014). Currently, skewed sex 
ratio does not appear to be an issue for this population, as recent 
biopsies have shown equal number of males and females (Rosel and 
Wilcox, 2014; Rosel et al., 2016). No GOMx Bryde's whale calves have 
been reported during surveys. However, two stranded calves have been 
recorded in the Gulf of Mexico: A 4.7 m calf stranded in the Florida 
Panhandle in 2006 (SEUS Historical Stranding Database) and a 6.9 m 
juvenile stranded north of Tampa, Florida, in 1988 (Edds et al. 1993).

Acoustics

    Baleen whale species produce a variety of highly stereotyped, low-
frequency tonal and broadband calls for communication purposes 
(Richardson et al. 1995). These calls are thought to function in a 
reproductive or territorial context, provide individual identification, 
and communicate the presence of danger or food (Richardson et al., 
1995). Bryde's whales worldwide produce a variety of calls that are 
distinctive among geographic regions that may be useful for delineating 
subspecies or populations (Oleson et al. 2003, [Scaron]irovi[cacute] et 
al. 2014). In the Gulf of Mexico, [Scaron]irovi[cacute] et al. (2014) 
reported Bryde's whale call types composed of downsweeps and downsweep 
sequences and localized these calls. Rice et al. (2014) detected these 
sequences, as well as two stereotyped tonal call types that originated 
from Bryde's whales in the Gulf of Mexico. One call type has been 
definitively identified to free-ranging GOMx Bryde's whales 
([Scaron]irovi[cacute] et al., 2014), four additional call types have 
been proposed as likely candidates (Rice et al., 2014a, 
[Scaron]irovi[cacute] et al., 2014), and two call types have been 
described from a captive juvenile during rehabilitation (Edds et al., 
1993). Based on these data, the calls by the Gulf of Mexico Bryde's 
whale are consistent with, but different from those previously reported 
for Bryde's whales worldwide (Rice et al., 2014). These unique acoustic 
signatures support the genetic analyses identifying the GOMx Bryde's 
whale as an evolutionary distinct unit (Rosel and Wilcox 2014).

Threats Evaluation

    The threats evaluation is the second step in making an ESA listing 
determination for the GOMx Bryde's whale, as described above in 
``Listing Determinations Under the ESA.'' The SRT identified a total of 
27 specific threats, organized and described them according to the five 
ESA factors listed in section 4(a)(1), and then evaluated the severity 
of each threat with a level of certainty (see Appendix 3 in Rosel et 
al., 2016). Because direct evidence from studies on GOMx Bryde's whales 
was lacking, the SRT agreed that published scientific evidence from 
other similar marine mammals was relevant and necessary to estimate 
impacts to GOMx Bryde's whale and extinction risk.
    To promote consistency when ranking each threat, the SRT used 
definitions for `severity of threat' and `level of certainty' similar 
to other status reviews, including the Hawaiian insular false killer 
whales (Oleson et al. 2010) and the northeastern Pacific population of 
white shark (Dewar et al. 2013). The SRT categorically defined specific 
rankings for both severity and certainty for each specific threat 
(identified below) as ``low,'' ``moderate,'' or ``high.'' The 
categorical definitions for the severity of each threat were identified 
by the SRT as 1 = ``low,'' meaning that the threat is likely to only 
slightly impair the population; 2 = ``moderate,'' meaning that the 
threat is likely to moderately degrade the population; or 3 = ``high,'' 
meaning that the threat is likely to eliminate or seriously degrade the 
population. The SRT also scored the certainty of the threat severity 
based on the following categorical definitions: 1 = ``low,'' meaning 
little published and/or unpublished data exist to support the 
conclusion that the threat did affect, is affecting, or is likely to 
affect the GOMx Bryde's whale with the severity ascribed; 2 = 
``moderate,'' meaning some published and/or unpublished data exist to 
support the conclusion that the threat did affect, is affecting, or is 
likely to affect the population with the severity ascribed; and 3 = 
``high,'' meaning there are definitive published and/or unpublished 
data to support the conclusion that this threat did affect, is 
affecting, or is likely to affect the GOMx Bryde's whale with the 
severity ascribed. Then, to determine the overall impact of an ESA 
factor, the SRT looked at the collective impact of threats considered 
for each ESA factor to provide an ``overall threat ranking'' for each 
ESA factor, defined as follows: 1= ``low,'' meaning the ESA factor 
included ``a low number'' of threats likely to contribute to the 
decline of the GOMx Bryde's whale; 2 = ``moderate,'' meaning the ESA 
Factor included an intermediate number of threats likely to contribute 
to the decline of the GOMx Bryde's whale, or contained some individual 
threats identified as moderately likely to contribute to the decline; 
and 3 = ``high,'' meaning the ESA factor included a high number of 
threats that are moderately or very likely

[[Page 88644]]

to contribute to the decline of the GOMx Bryde's whale, or contains 
some individual threats identified as very likely to contribute to the 
decline of the GOMx Bryde's whale.
    The SRT then calculated the numerical mean of the team members' 
scores for each threat or category of threats. However, we do not 
believe that relying on the numerical mean of the SRT's scores is 
appropriate, because the specific rankings for the severity, certainty, 
and overall threat were categorically defined by the SRT and not 
numerically defined. Therefore, we assessed the majority vote of the 
team members' scores (i.e., 1, 2, or 3, as described above) and 
assigned each threat a specific ranking defined by the SRT's 
categorical definitions (i.e., low, moderate or high) based on the 
majority vote of the SRT. When there was no clear majority (i.e., no 
rank received four votes), the categorical ranking we assigned was a 
combination of the two ranks receiving three votes each (e.g., three 
votes for high and three votes for moderate we characterized as 
``moderate-high'').
    Each of the 27 threats identified by the SRT is summarized below, 
by ESA factor, with severity and certainty rankings based on the SRT's 
categorical scoring, as described above. We also summarize the overall 
threat ranking for each ESA factor, based on the SRT's scores, and 
provide NMFS' determination with regard to each factor. A detailed 
table of the SRT's threats and rankings can be found in Appendix 3 of 
the Status Review report (Rosel et al., 2016).

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Habitat or Range

    The SRT considered the following threats to the GOMx Bryde's whale 
under ESA Factor A: Energy exploration and development, oil spills and 
spill response, harmful algal blooms, persistent organic pollutants, 
and heavy metals. Based on the SRT's numerical threat rankings, the 
overall threat ranking assigned to Factor A was ``high.''
Energy Exploration and Development
    The SRT assigned the threat of energy exploration and development 
(drilling rigs, platforms, cables, pipelines) a score of ``high'' 
severity threat with ``moderate'' certainty, as it relates to 
destruction, modification, or curtailments of the range of the GOMx 
Bryde's whale. (Note: Other aspects or elements of energy exploration 
and development can act directly on the whales (e.g., noise, vessel 
collision, marine debris). The SRT evaluated those threats under Factor 
E, other natural or human factors affecting a species continued 
existence. Accordingly, we discuss and evaluate those threats under 
Factor E below.)
    The Gulf of Mexico is a major oil and gas producing area and has 
proven a steady and reliable source of crude oil and natural gas for 
more than 50 years. Approximately 2,300 platforms operate in Federal 
outer continental shelf (OCS) waters (Rosel et al., 2016) and in 2001 
approximately 27,569 miles (44,368 km) of pipeline lay on the Gulf of 
Mexico seafloor (Cranswick 2001). For planning and administrative 
purposes, the Bureau of Ocean Energy Management (BOEM) has divided the 
Gulf of Mexico into three planning areas: Western, Central, and 
Eastern. The majority of active lease sales are located in the Western 
and Central Planning Areas. Habitat in the north-central and western 
Gulf of Mexico, which includes the GOMx Bryde's whale's historical 
range, has been significantly modified with the presence of thousands 
of oil and gas platforms. The Eastern Planning Area (EPA), which 
overlaps with the GOMx Bryde's whale BIA, currently has no production 
activity, with most of the area falling under a moratorium of lease 
sales until 2022. However, this moratorium expires in 2022, and GOMx 
Bryde's whale could then be exposed to increased threats associated 
with energy exploration and development activities (e.g., marine 
debris, operational discharge, vessel collision, noise, seismic 
surveys, oil spills, etc.) as they are almost exclusively located 
within this geographic region. In addition to expressing concern 
regarding the current curtailment of the GOMx Bryde's whale range due 
to energy exploration and development in the north-central and western 
Gulf of Mexico, the SRT raised significant concern about the moratorium 
expiring and the potential expansion of impacts that opening these 
waters to development would have on the Bryde's whale BIA in the 
future, especially in light of the apparent limited use by Bryde's 
whales of the north-central and western Gulf of Mexico.
Oil Spills and Spill Response
    Oil spills are a common occurrence in the Gulf of Mexico. In 2010, 
the Deepwater Horizon (DWH) oil spill was the largest spill affecting 
U.S. waters in U.S. history, spilling nearly 134 million gallons (507 
million liters) of oil into the Gulf of Mexico. In addition, 46 
smaller-scale spills associated with oil and gas related activities 
(e.g., platforms, rigs, vessels, pipelines) occurred in the Gulf of 
Mexico between 2011 and 2013 (OCS EIS EA BOEM 2015-001).
    Exposure to oil spills may cause marine mammals acute or chronic 
impacts with lethal or sub-lethal effects depending on the size and 
duration of the spill. For large baleen whales, like the GOMx Bryde's 
whale, oil can foul the baleen they use to filter-feed, decreasing 
their ability to eat, and resulting in the ingestion of oil (Geraci et 
al., 1989). Impacts from exposure may also include: Reproductive 
failure, lung and respiratory impairments, decreased body condition and 
overall health, and increased susceptibility to other diseases (Harvey 
and Dahlheim 1994). Oil and other chemicals on the body of marine 
mammals may result in irritation, burns to mucous membranes of eyes and 
mouth, and increased susceptibility to infection (DWH Trustees 2016). 
Dispersants used during oil spill response activities may also be toxic 
to marine mammals (Wise et al., 2014a). After oil spills cease, marine 
mammals may experience continued effects through persistent exposure to 
oil and dispersants in the environment, reduction or contamination of 
prey, direct ingestion of contaminated prey, or displacement from 
preferred habitat (Schwacke et al., 2014, BOEM and Gulf of Mexico OCS 
Region 2015, DWH Trustees 2016). The DWH oil spill is an example of the 
significant impacts a spill can have on the status of the GOMx Bryde's 
whale. Although the DWH platform was not located within the BIA, the 
oil footprint included 48 percent of GOMx Bryde's whale habitat and an 
estimated 17 percent of the species was killed, 22 percent of 
reproductive females experienced reproductive failure, and 18 percent 
of the population likely suffered adverse health effects due to the 
spill (DWH Trustees 2016). Based on the SRT's scoring, the threat of 
exposure to oil spills and spill response is a ``high'' severity threat 
with a ``high'' level of certainty to the GOMx Bryde's whale.
Harmful Algal Blooms
    Harmful Algal Blooms (HAB) occur throughout the Gulf of Mexico, 
with most blooms occurring off the coast of Florida. One of the most 
common HAB species, Karenia brevis (also known as the red tide 
organism), is common along coastal zones, but can also develop 
offshore. Karenia brevis produces neurotoxins that affect the nervous 
system by blocking the entry of sodium ions to nerve and muscle cells 
(Geraci et al., 1989). The neurotoxins can accumulate in primary 
consumers through direct exposure to toxins in the water, ingestion, or 
inhalation. Once

[[Page 88645]]

neurotoxins have entered the food web, bioaccumulation can occur in 
predators higher up on the food web, like GOMx Bryde's whales.
    HABs are also known to negatively affect marine mammal populations 
through acute and chronic detrimental health effects, including 
reproductive failure (reviewed in Fire et al., 2009). Although no 
documented cases of GOMx Bryde's whale deaths resulting from HABs 
exist, cases involving humpback whales (Megaptera novaeangliae; Geraci 
et al., 1989) and potentially fin (B. physalus) and minke whales 
(Gulland and Hall 2007) have been reported. Impacts from HABs have also 
been associated with large-scale mortality events for common bottlenose 
dolphins and manatees in the offshore and coastal waters of the 
northeastern Gulf of Mexico. Given the small population size of the 
GOMx Bryde's whale, the SRT noted that a HAB-induced mortality of a 
single breeding female would significantly degrade the status of the 
population. Largely due to human activities, HABs are increasing in 
frequency, duration, and intensity throughout the world (Van Dolah 
2000). Based on the SRT's scoring, the threat of harmful algal blooms 
(HABs) is a ``moderate'' severity threat with a ``low'' level 
certainty.
Persistent Organic Pollutants and Heavy Metals
    Concentrations of persistent organic pollutants (POP) are typically 
lower in baleen whales compared to toothed whales due to differences in 
feeding levels in the trophic system (Waugh et al., 2014, Wise et al., 
2014b). In general, thresholds for adverse impacts to baleen whales 
resulting from POPs are unknown (Steiger and Calambokidis 2000).
    Little is known about the effects of heavy metals on offshore 
marine mammal populations. Heavy metals can accumulate in whale tissue 
and cause toxicity (Sanpera et al., 1996, Hern[aacute]ndez et al., 
2000, Wise et al., 2009). Similarly heavy metals accumulate in prey at 
the trophic levels where marine mammals feed. However, concentrations 
of heavy metals in tissue vary based on physiological and ecological 
factors such as geographic location, diet, age, sex, tissue, and 
metabolic rate (Das et al., 2003). Although heavy metals are pervasive 
in the marine environment and documented in various marine mammal 
species, their impact on Bryde's whale health and survivorship is 
unknown. Based on the SRT's scoring, the threat of POPs and heavy 
metals are ``low'' severity threat, with a ``moderate'' level of 
certainty for POPs and a ``low'' level of certainty for heavy metals.
Summary of Factor A
    We interpret the overall risk assigned by the SRT for ESA Factor A 
as ``high,'' indicating that there are a high number of threats that 
are moderately or very likely to contribute to the decline of the GOMx 
Bryde's whale, or some individual threats identified as very likely to 
contribute to the decline of the population. Specifically, the SRT 
found that energy exploration and development, and oil spills and spill 
response, were significant threats currently seriously degrading the 
GOMx Bryde's whale population. In addition, the SRT found that HABs, 
POPs, and heavy metals are not currently significantly contributing to 
the risk of extinction for the Gulf of Mexico Bryde's whale.
    Based on the comprehensive status review and after considering the 
SRT's threats assessment, we conclude that energy exploration and 
development, and oil spills and spill response, are currently 
increasing the GOMx Bryde's whales risk of extinction.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The SRT considered two threats under ESA Factor B; historical 
whaling and scientific biopsy sampling. The overall rank assigned for 
Factor B, based on the SRT's scoring, is ``low.''
Historical Whaling
    The SRT scored the impacts from historical whaling as a ``low'' 
severity threat with a ``moderate-high'' degree of certainty. Whaling 
that occurred in the 18th and 19th centuries in the Gulf of Mexico may 
have removed Bryde's whales. The primary target species were sperm 
whales, but other species were taken. Reeves et al., (2011) indicated 
that, during the 18th and 19th centuries, whalers hunting ``finback 
whales'' in the Gulf of Mexico were most likely taking Bryde's whales, 
based on the known distribution and recent records of baleen whale 
species in the Gulf of Mexico. However, the total number of whales 
killed during that time cannot be quantified. The SRT determined that 
it is unlikely the current low abundance of GOMx Bryde's whales is 
related to historical whaling, as the population would have recovered 
to some extent, given the estimated population recovery rate (Wade 
1998) and considering that whaling stopped over a century ago (Rosel et 
al., 2016). Whaling is not a current threat in the Gulf of Mexico and 
is regulated by the International Whaling Commission (see Factor D). 
The SRT ranked the impacts from historical whaling as ``low'' severity 
threat with a ``moderate-high'' degree of certainty.
Scientific Biopsy Sampling
    Scientific research that may have the potential to disturb and/or 
injure marine mammals such as the Bryde's whale requires a letter of 
authorization under the Marine Mammal Protection Act (MMPA). As of 
March 7, 2016 (the reference date used by the SRT), there was one 
active scientific permit authorizing non-lethal take of GOMx Bryde's 
whale and four scientific research permits authorizing non-lethal take 
of Bryde's whales worldwide, including the Gulf of Mexico. The permits 
authorize activities such as vessel or aerial surveys, photo-
identification, behavioral observation, collection of sloughed skin, 
and passive acoustics. Four of the permits also authorize activities 
such as dart biopsies and/or tagging. Biopsy sampling, where a small 
piece of tissue is removed for analysis, is a common research activity 
used to support stock differentiation, evaluate genetic variation, and 
investigate health, reproduction and pollutant loads (Brown et al., 
1994). Research on wound healing from biopsies has indicated little 
long-term impact (Brown et al., 1994, Best et al., 2005). In addition, 
research activities are closely monitored and evaluated in the United 
States in an attempt to minimize impacts (see Factor D). The SRT scored 
the threat of scientific biopsy sampling as a ``low'' severity threat 
with a ``high'' level of certainty.
Summary of Factor B
    The overall threat rank assigned for Factor B by the SRT was 
``low,'' indicating there are a low number of threats that are likely 
to contribute to the decline of the GOMx Bryde's whale. We conclude, 
based on our review of the information presented in the Status Review 
report and SRTs threats assessment, that the threats posed by whaling 
and scientific biopsy sampling are not increasing the risk of 
extinction for the Gulf of Mexico Bryde's whale. Upon reviewing the 
information in the Status Review report and the SRT's threats 
assessment, we concluded that whaling and scientific biopsy sampling 
are low potential threats to the GOMx Bryde's whale and are not 
currently contributing to the risk of extinction.

Factor C. Disease, Parasites, and Predation

    The SRT considered the following threats under ESA Factor C: 
Disease and

[[Page 88646]]

parasites, and predation. The overall rank assigned for Factor C based 
on the SRT's scoring was ``low.''
Disease and Parasites
    There is little information on disease or parasitism of any Bryde's 
whale in the literature. Reviews of conservation issues for baleen 
whales have tended to see disease as a relatively inconsequential 
threat (Claphan et al., 1999). The SRT noted that cetacean 
morbillivirus, which causes epizootics resulting in serious population 
declines in dolphin species (Van Bressem et al., 2014), has also been 
detected in fin whales in the eastern Atlantic Ocean (Jauniaux et al., 
2000) and in fin whales and minke whales in the Mediterranean Sea 
(Mazzariol et al., 2012; Di Guardo et al., 1995). In the Gulf of Mexico 
the morbillivirus outbreaks that occurred in 1990, 1992, and 1994, 
caused marine mammal mortalities, with most the mortalities being 
common bottlenose dolphins (Rosel et al., 2016). These outbreaks were 
thought to have originated in the Atlantic Ocean (Litz et al. 2014). An 
unusual mortality event involving hundreds of common bottlenose 
dolphins in the Atlantic Ocean from 2013-2015 was caused by 
morbillivirus (Rosel et al., 2016). During this outbreak, a few 
individuals of multiple species of baleen whales in the Atlantic tested 
positive for the disease, indicating that it could potentially spread 
to Bryde's whales (Rosel et al., 2016). However, there have been no 
confirmed morbillivirus-related deaths of Bryde's whales in the Gulf of 
Mexico (Rosel et al., 2016).
    The SRT identified only two cases of other diseases and parasites 
known to occur in Bryde's whale detected in Australia (Patterson 1984) 
and Brazil (Pinto et al., 2004). Based on the SRT's scoring, the threat 
of disease and parasites is a ``low'' severity threat with ``low'' 
certainty.
Predation
    Killer whales (Orcinus orca) are the only known predator to Bryde's 
whales and they occur in areas further offshore from the BIA (Silber & 
Newcomer 1990, Alava et al. 2013). There are no published records of 
killer whale predation of GOMx Bryde's whale (Rosel et al., 2016). 
Killer whales have been observed harassing sperm whales and attacking 
pantropical spotted dolphins (Stenella attenuate) and a dwarf/pygmy 
sperm whale (Kogia sp.) (Pitman et al. 2001, Whitt et al. 2015, NMFS 
SEFSC, unpublished) in the Gulf of Mexico. While large sharks (e.g., 
white sharks Carcharodon carcharias, and tiger sharks Galaecerdo 
cuvier) are known to scavenge on carcasses of Bryde's whales elsewhere 
in the world (Dudley et al. 2000), the SRT found no published reports 
of large shark predation on healthy, living individuals (Rosel et al., 
2016). Based on this information, the SRT's scoring of this threat was 
``low'' severity with ``low'' certainty.
Summary of Factor C
    The overall threat rank assigned for Factor C, based on the SRT's 
scoring was ``low,'' indicating that this category includes a low 
number of threats that are likely to contribute to the decline of the 
GOMx Bryde's whale. Based on the limited observance of disease, 
parasites, or predation, we concur that these are low potential threats 
to the GOMx Bryde's whale and are not currently contributing to their 
extinction risk.

Factor D. Inadequacy of Existing Regulatory Mechanisms

    The relevance of existing regulatory mechanisms to extinction risk 
for an individual species depends on the vulnerability of that species 
to each of the threats identified under the other factors of ESA 
section 4, and the extent to which regulatory mechanisms could or do 
control the threats that are contributing to the species' extinction 
risk. If a species is not vulnerable to a particular threat, it is not 
necessary to evaluate the adequacy of existing regulatory mechanisms 
for addressing that threat. Conversely, if a species is vulnerable to a 
particular threat, we do evaluate the adequacy of existing measures, if 
any, in controlling or mitigating that threat. In the following 
paragraphs, we summarize existing regulatory mechanisms relevant to 
threats to GOMx Bryde's whale generally, and assess their adequacy for 
controlling those threats.
Marine Mammal Protection Act
    In U.S. waters, Bryde's whales are protected by the MMPA (16 U.S.C. 
1361 et seq.). The MMPA sets forth a national policy to prevent marine 
mammal species or population stocks from diminishing to the point where 
they are no longer a significant functioning element of their 
ecosystem. The Secretaries of Commerce and the Interior have primary 
responsibility for implementing the MMPA. The Secretary of Commerce has 
jurisdiction over the orders Cetacean and Pinnipedia with the exception 
of walruses, and the Secretary of Interior has jurisdiction over all 
other marine mammals. Both agencies are responsible for promulgating 
regulations, issuing permits, conducting scientific research, and 
enforcing regulations, as necessary, to carry out the purposes of the 
MMPA. The MMPA includes a general moratorium on the `taking' and 
importing of marine mammals, which is subject to a number of 
exceptions. Some of these exceptions include `take' for scientific 
purposes, public display, and unintentional incidental take coincident 
with conducting lawful activities. Any U.S. citizen, agency, or company 
who engages in a specified activity other than commercial fishing 
(which is specifically and separately addressed under the MMPA) within 
a specified geographic region may submit an application to the 
Secretary to authorize the incidental, but not intentional, taking of 
small numbers of marine mammals within that region for a period of not 
more than five consecutive years (16 U.S.C. 1371(a)(5)(A)). U.S. 
citizens can also apply under the MMPA for authorization to 
incidentally take marine mammals by harassment for up to 1 year (16 
U.S.C. 1371(a)(5)(D)). For both types of authorizations, it must be 
determined that the take is of small numbers, has no more than a 
negligible impact on those marine mammal species or stocks, and does 
not have an unmitigable adverse impact on the availability of the 
species or stock for subsistence use. The MMPA also provides mechanisms 
for directed ``take'' of marine mammals for the purposes of scientific 
research. Non-lethal research takes of Bryde's whale for scientific 
research (e.g., biopsy sampling) are currently authorized on a global 
scale and typically do not specify a geographic area. Hence the 
potential for multiple biopsies of an individual Bryde's whale does 
exist. However, any risk to GOMx Bryde's whale from multiple sampling 
is low, and we do not expect any mortalities to result. In these 
situations, we take a proactive role and coordinate with researchers to 
minimize any potential negative effects to a small population.
    The MMPA currently identifies the Northern Gulf of Mexico stock of 
Bryde's whales as a ``strategic'' stock, because the level of direct 
human-caused mortality and serious injury exceeds the potential 
biological removal (PBR) level determined for the species, which could 
have management implications. The MMPA also provides additional 
protections to stocks designated as ``depleted'' and requires that 
conservation plans be developed to conserve and restore the stock to 
its optimum sustainable population (OSP). In order for a stock to be 
considered ``depleted'' the Secretary, after consultation with the 
Marine Mammal

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Commission and the Committee of Scientific Advisors on Marine Mammals, 
must determine it is below its OSP or if the species or stock is listed 
under the ESA. In 2015, the Marine Mammal Stock Assessment Report 
determined that the status of the Northern Gulf of Mexico Population of 
Bryde's whales, relative to OSP was unknown, as there was insufficient 
information to determine population trends (SARS 2015). Due to this 
lack of information on OSP, the GOMx Bryde's whale is not designated as 
a ``depleted'' stock and there is no conservation plan. Based on the 
above, we conclude that, outside of the general protections provided to 
marine mammals by the MMPA, there are no specific regulatory mechanisms 
specific to the GOMx Bryde's whale under the MMPA.
Outer Continental Shelf Lands Act and the Oil Pollution Act
    The SRT also identified existing regulatory mechanisms relating to 
oil and gas development and oil spills and spill response (see Factors 
A and E for a discussion of those threats). The Outer Continental Shelf 
Lands Act (OCSLA) establishes Federal jurisdiction over submerged lands 
on the OCS seaward of coastal state boundaries in order to explore and 
develop oil and gas resources. Implementation, regulation, and granting 
of leases for exploration and development on the OCS are delegated to 
the BOEM, and BOEM is responsible for managing development of the 
nation's offshore resources. The functions of BOEM include leasing, 
exploration and development, plan administration, environmental 
studies, National Environmental Policy Act (NEPA) analysis, resource 
evaluation, economic analysis, and the renewable energy program BSEE is 
responsible for enforcing safety and environmental regulations. OCSLA 
mandates that orderly development of OCS energy resources be balanced 
with protection of human, marine and coastal environments. It is the 
stated objective of the OCSLA ``to prevent or minimize the likelihood 
of blowouts, loss of well control, fires, spillages . . . or other 
occurrences which may cause damage to the environment or to property, 
or endanger life or health'' (43 U.S.C. 1332(6)). OCSLA further 
requires the study of the environmental impacts of oil and gas leases 
on the continental shelf, including an assessment of effects on marine 
biota (43 U.S.C. 1346). OCSLA, as amended, requires the Secretary of 
the Interior, through BOEM and BSEE, to manage the exploration and 
development of OCS oil, gas, and marine minerals (e.g., sand and 
gravel) and the siting of renewable energy facilities. The Energy 
Policy Act of 2005, Public Law (Pub. L.) 109-58, added Section 
8(p)(1)(C) to the OCSLA, which grants the Secretary of Interior the 
authority to issue leases, easements, or rights-of-way on the OCS for 
the purpose of renewable energy development (43 U.S.C. 1337(p)(1)(C)). 
This authority has been delegated to BOEM (30 CFR 585), who now 
regulates activities within Federal waters. Since 2006, there has been 
a moratorium on leasing new areas for oil and gas development and 
production in the Gulf of Mexico EPA that includes the waters offshore 
of Florida, including the BIA. The moratorium is set to expire in 2022 
and, if it is not renewed, the GOMx Bryde's whale within the BIA could 
be exposed to increased energy exploration.
    The Oil Pollution Act (OPA) of 1990 (33 U.S.C. 2701-2761) is the 
principal statute governing oil spills in the nation's waterways. OPA 
was passed following the March 1989 Exxon Valdez oil spill to address a 
lack of adequate resources, particularly Federal funds, to respond to 
oil spills (National Pollution Funds Center 2016). The OPA created 
requirements for preventing, responding to, and funding restoration for 
oil pollution incidents in navigable waters, adjoining shorelines, and 
Federal waters. The OPA authorizes Trustees (representatives of 
Federal, state, and local government entities, and Tribes with 
jurisdiction over the natural resources in question) to determine the 
type and amount of restoration needed to compensate the public for the 
environmental impacts of the spill. These assessments are typically 
described in damage assessment and restoration plans. The Final 
Programmatic Damage Assessment and Restoration Plan (PDARP) developed 
for the 2010 DWH oil spill found the GOMx Bryde's whale to be the most 
impacted oceanic and shelf marine mammal; 48 percent of the population 
was affected, resulting in an estimated 22 percent maximum decline in 
population size (DWH Trustees 2016). The DWH PDARP allocates fifty-five 
million dollars over the next 15 years for restoration of oceanic and 
shelf marine mammals, including Bryde's whales. The PDARP does not 
identify specific projects, but lays out a framework for planning 
future restoration projects, that may contribute to the restoration of 
GOMx Bryde's whale.
    The ongoing impacts to the GOMx Bryde's whale from oil and gas 
development and oil spills in the Gulf of Mexico identified by the SRT 
indicate that existing regulatory mechanisms are not adequate to 
control these threats. While the current moratorium on leasing for new 
oil and gas development in the EPA appears to provide some protection 
to the GOMx Bryde's whale, the SRT found that development in the Gulf 
of Mexico continues to have broad impacts, through curtailment of range 
and anthropogenic noise from seismic surveys and vessels associated 
with oil and gas development. Additionally, the existing moratorium on 
new leases in the EPA expires in 2022 and, if not renewed, energy 
exploration would be allowed in the GOMx Bryde's whale BIA, resulting 
in potentially severe impacts to this small population. We acknowledge 
that activities under the DWH PDARP may be beneficial to GOMx Bryde's 
whales, but we also conclude that oil spills and spill response remain 
a serious current threat to the GOMx Bryde's whale population, as 
discussed above in Factor A.
International Convention for the Regulation of Whaling
    The International Whaling Commission (IWC) was set up under the 
International Convention for the Regulation of Whaling (ICRW), signed 
in 1946. The IWC established an international moratorium on commercial 
whaling for all large whale species in 1982, effective in 1986; this 
affected all member (signatory) nations (paragraph 10e, IWC 2009a). 
Since 1985, IWC catch limits for commercial whaling have been set at 
zero. However, under the IWC's regulations, commercial whaling has been 
permitted in both Norway and Iceland based on their objection to 
specific provisions. In addition, harvest of whales by Japan for 
scientific purposes has been permitted by the ICRW, including the 
Bryde's whale in the North Pacific. However, distribution of the GOMx 
Bryde's whale does not overlap with any permitted commercial whaling. 
The SRT concluded the current commercial whaling moratorium provides 
significant protection for the GOMx Bryde's whale, and we concur.
The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora
    The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) is aimed at protecting species at risk from 
unregulated international trade and regulates international trade in 
animals and plants by listing species in one of its three appendices. 
The level of monitoring and control to which an animal or plant species 
is subject depends on the appendix in which the

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species is listed. All Bryde's whales (B. edeni) are currently listed 
in Appendix I under CITES. Appendix I includes species that are 
threatened with extinction and may be affected by trade; trade of 
Appendix I species is only allowed in exceptional circumstances. Due to 
the IWC commercial whaling moratorium in place since 1985, commercial 
trade of Bryde's whale in the Gulf of Mexico has not been permitted. 
However, if the moratorium should be lifted in the future, the Bryde's 
whale's CITES Appendix I listing would restrict trade, so that trade 
would not contribute to the extinction risk of the species.
International Maritime Organization
    The International Maritime Organization (IMO), a branch of the 
United Nations, is the international authority on shipping, pollution, 
and safety at sea and has adopted guidelines to reduce shipping noise 
and pollution from maritime vessels. Additionally, the IMO's Marine 
Environment Protection Committee occasionally identifies special areas 
and routing schemes for various ecological, economic, or scientific 
reasons. Some of these actions help benefit endangered right whales and 
humpback whales. However the SRT found no protected areas or routing 
schemes that would protect the GOMx Bryde's whale.
Mexico Energy Sector: Opening to Private Investment
    The SRT expressed concern regarding potential oil and gas 
development in the southern Gulf of Mexico. Mexico recently instituted 
reforms related to its oil and gas sector that officially opened 
Mexico's oil, natural gas, and energy sectors to private investment. As 
a result, Mexico's state-owned petroleum company, Petroleos Mexicanos 
(Pemex) may now partner with international companies for the purposes 
of exploring the southern Gulf of Mexico's deep water and shale 
resources. The SRT found that more than 9 companies have shallow water 
lease permits either pending or approved, and 2D and 3D seismic data 
collection has begun. In 2013, the U.S. Congress approved the U.S.-
Mexico Transboundary Hydrocarbons Agreement, which aims to facilitate 
joint development of oil and natural gas in part of the Gulf of Mexico. 
This agreement, coupled with recent reforms in Mexico, could lead to 
development within the Gulf of Mexico offshore Mexico oil and gas, 
including infrastructure for cross-border pipelines. The SRT found that 
recent developments indicate a high potential for oil and gas 
development in these waters. However, we believe that anticipating any 
future threats to the GOMx Bryde's whale at this point in time is 
overly speculative, because the best available science indicates that 
the GOMx Bryde's whale distribution does not currently include the 
southern Gulf of Mexico.
Summary of Factor D
    The SRT unanimously agreed that the inadequacy of existing 
regulatory mechanisms factor is a ``high'' threat to the GOMx Bryde's 
whale (Rosel et al., 2016). Specifically the SRT found that, given the 
current status and limited distribution of the Bryde's whale population 
in the Gulf of Mexico, it is clear that existing regulations have been 
inadequate to protect them. The SRT expressed particular concern 
regarding current oil and gas development and impacts from oil spills 
in the Gulf of Mexico, as well as vessel strikes due to shipping 
traffic. We agree that currently there are no regulatory mechanisms in 
the Gulf of Mexico to address ship strikes on GOMx Bryde's whales, 
which the SRT identified as one of the primary threats faced by the 
species (see Factor E below). Additionally, the Status Review report 
suggests that oil and gas development in the Gulf of Mexico have been a 
contributing factor to limiting the GOMx Bryde's whale's current range 
to the De Soto Canyon. Thus, while we acknowledge that existing 
protective regulations are in place, we agree with the SRT's overall 
conclusion that the existing regulatory mechanisms have not prevented 
the current status of the GOMx Bryde's whale, for the reasons stated 
above.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The SRT categorized threats under ESA Factor E by three groups: A 
general category for ``other natural or human factors;'' anthropogenic 
noise; and small population concerns. Within the general sub-category 
for other natural or human factors, the SRT included: Vessel collision; 
military activities; fishing gear entanglements; trophic impacts due to 
commercial harvest of prey; climate change; plastics and marine debris; 
and aquaculture. Within the anthropogenic noise sub-category of Factor 
E, the SRT included: Aircraft and vessel noise associated with oil and 
gas activities; drilling and production noise associated with oil and 
gas activities; seismic survey noise associated with oil and gas 
activities; noise associated with military training and exercises; 
noise associated with commercial fisheries and scientific acoustics; 
and noise associated with vessels and shipping traffic. Within the 
small population concerns sub-category of Factor E, the SRT included: 
Allee effects; demographic stochasticity; genetics; k-selected life-
history parameters; and stochastic and catastrophic events. An 
explanation of these threats and the SRT's ranking for each of these 
sub-categories follows.

Other Natural or Human Factors

    Vessel Collision--Vessel collisions are a significant source of 
mortality for a variety of coastal large whale species (Laist et al., 
2001). The northern Gulf of Mexico is an area of considerably high 
amount of ship traffic, which increases the risk of vessel-whale 
collisions (Rosel et al., 2016). Several important commercial shipping 
lanes travel through the primary GOMx Bryde's whale habitat in the 
northeastern Gulf of Mexico, particularly vessel traffic from ports in 
Mobile, Pensacola, Panama City, and Tampa (see Figure 17; Rosel et al., 
2016). In 2009, a GOMx Bryde's whale was found floating dead in the 
Port of Tampa, Tampa Bay, Florida. The documented cause of death was 
blunt impact trauma due to ship strike (Waring et al., 2016). The 
necropsy report found that the whale was a lactating female indicating 
that the whale was nursing a calf. It is likely that the calf died, as 
it was still dependent on the mother.
    Bryde's whales are the third most commonly reported species struck 
by ships in the southern hemisphere (Van Waerebeek et al., 2007). As 
previously described, tracking information from a single GOMx Bryde's 
whale indicated a consistent diel dive pattern over 3 days, with 88 
percent of nighttime hours spent within 15 m of the surface. This 
suggested to the SRT that, if other individuals exhibit a similar 
diving pattern, they would be at greater risk of ship strike, because 
they spend most of the time at the surface at night when there is 
minimal visibility. Marine mammals that spend the majority of their 
nighttime hours near the surface and animals that spend more time at or 
near the surface are at greater risk than species that spend less time 
at the surface (Rosel et al., 2016). Additionally, the threat of vessel 
collision may increase in the future given the expansion of the Panama 
Canal, which is anticipated to increase vessel traffic in the Gulf of 
Mexico (Institute for Water Resources 2012). Given the location of 
commercial shipping lanes, the difficulty of sighting a whale at the 
surface at night, and the low ability of large ships to change course 
quickly enough to avoid a whale, the SRT's scoring indicates that ship

[[Page 88649]]

strikes pose a ``high'' severity threat to the GOMx Bryde's whale with 
``high'' certainty.
    Military Activities--Significant portions of the Gulf of Mexico are 
used for military activities. NMFS conducted a 2013 Biological Opinion 
to assess the impact of the Navy training exercises and coordinated via 
a Letter of Authorization under the MMPA to govern unintentional takes 
incidental to training and testing activities (Rosel et al., 2016). 
Although Level B harassment (i.e., activities that have the potential 
to disturb or harass) is authorized, the Navy determined that very few 
training or testing activities are likely to occur within the BIA (see 
Figures 18 and 19 in Rosel et al., 2016). Moreover, the Navy agreed to 
expand their Planning Awareness Area to encompass the Bryde's whale BIA 
and as a result they will avoid planning major training activities 
there, when feasible. In addition, Eglin Air Force Base (AFB) also 
conducts training exercises in the Gulf of Mexico. Eglin AFB also has 
an incidental harassment authorization for common bottlenose dolphin 
and Atlantic spotted dolphin, for their Maritime Weapon Systems 
Evaluation Program. However, their training activities take place in 
relatively shallow water (i.e., 35 to 50 m depth). Eglin AFB does not 
anticipate that its activities would take GOMx Bryde's whales, because 
the GOMx Bryde's whales are rare in the areas involved (e.g., shallow 
waters); therefore, Eglin AFB did not request a take authorization 
(Rosel et al., 2016; 81 FR 7307, February 11, 2016). The SRT concluded 
that, although there are military activities in the Gulf of Mexico, 
including the northern Gulf of Mexico, most activities appeared to 
occur outside the BIA. In addition, they found that military activities 
are not constant, and due to the current scope of existing activities, 
the threat was considered less likely to have negative impacts on the 
population (Rosel et al., 2016). However, the SRT believed that this 
threat would need to be re-evaluated if the intensity, timing, or 
location of military training exercises encroached closer to the BIA. 
Based on the SRT rankings, the threat of military activities (i.e., 
explosive pressure waves, target training, and vessel activities) is a 
``moderate'' threat with ``low'' certainty. The threat of noise from 
military activities is considered under the Anthropogenic Noise 
section, below.
    Fishing Gear Entanglement--Marine mammals are known to become 
hooked, trapped, or entangled in fishing gear, leading to injury or 
mortality (Read 2008, Reeves et al., 2013). While gear interactions are 
documented more frequently for toothed whales, they remain a threat to 
small populations of baleen whales like the GOMx Bryde's whale (Reeves 
et al., 2013). The SRT evaluated the special distribution and fishing 
effort for 12 fisheries that occur in the Gulf of Mexico. Based on 
their evaluation, the SRT concluded that five commercial fisheries 
(Table 7; Rosel et al., 2016) overlap or possibly overlap with the 
Bryde's whale BIA and use gear types (i.e., pelagic longlines, bottom 
longlines, and trawls) that pose entanglement threats to whales.
    Pelagic longlines are a known entanglement threat to baleen whales, 
as the majority of mainline gear is in the water column and animals 
swimming in the area may interact with the gear (Andersen et al., 
2008). The Atlantic Ocean, Caribbean, Gulf of Mexico commercial pelagic 
longline fishery for large pelagic species is active within the GOMx 
Bryde's whale BIA. Approximately two thirds of the BIA has been closed 
to commercial pelagic longline fishing year-round since 2000, when the 
Highly Migratory Species Atlantic Tunas, Swordfish, and Sharks Fishery 
Management Plan was amended to close the De Soto Canyon Marine 
Protected Area (65 FR 47214, August 1, 2000). While longline fishing 
still occurs in the remaining one third of the BIA (Figure 20B; Rosel 
et al., 2016), the fishery typically operates in waters greater than 
300m, where sightings of Bryde's whales are infrequent. To date, no 
interactions between GOMx Bryde's whale and pelagic longline gear have 
been recorded.
    Gulf reef fish and shark bottom longline gear consists of a 
monofilament mainline up to a mile in length anchored on the seafloor, 
with up to 1,000 baited hooks along the mainline and marked with buoys. 
Generally bottom longline gear poses less of a threat of entanglement 
threat to cetaceans compared to pelagic longline gear, except when 
cetaceans forage along the seafloor. Such foraging appears to be the 
case with the GOMx Bryde's whale, exposing them to risk of entanglement 
in mainlines. These fisheries overlap spatially with the GOMx Bryde's 
whale BIA. While bottom longlining typically occurs in waters less than 
100m, fishing for yellowedge grouper, golden tilefish, blueline 
tilefish, and sharks occurs in deeper waters between 100 and 300m 
within the BIA. The available information indicates the GOMx Bryde's 
whale forages on or near the seafloor bottom, such that, potential for 
interactions exists, although no interactions have been recorded (Rosel 
et al., 2016).
    Both the Gulf of Mexico shrimp trawl fishery and the butterfish 
trawl fishery occur within the GOMx Bryde's whale BIA (Rosel et al., 
2016). However, the shrimp trawl fishery has limited spatial overlap 
with the BIA and the areas that do overlap represent only a small 
portion of total fishing effort. The butterfish trawl fishery is small, 
with only two participants currently permitted, and limited available 
information. Based on the SRT's scoring, the threat of entanglement in 
commercial fishing gear is ``moderate'' in severity with ``moderate'' 
certainty.
    Trophic Impacts Due to Commercial Harvest of Prey Items--While GOMx 
Bryde's whales' prey in the Gulf of Mexico are currently unknown (Rosel 
et al., 2016), they likely feed on anchovy, sardine, mackerel and 
herring, and small crustaceans, similar to Bryde's whales worldwide 
(Kato 2000). The two main Gulf of Mexico commercial fisheries for small 
schooling fish are the Gulf of Mexico menhaden purse-seine fishery and 
the Florida west coast sardine purse-seine fishery; the main 
invertebrate fishery is the Gulf of Mexico shrimp trawl fishery. The 
SRT concluded that direct competition between GOMx Bryde's whale and 
commercial fisheries did not appear to be likely, based on the current 
distribution of the GOMx Bryde's whale, the distribution of fishery 
effort, and presumed fish and invertebrate habitat (Rosel et al., 
2016). The SRT also evaluated the threat of total biomass removal by 
the menhaden purse-seine fishery and the shrimp trawl fishery in the 
Gulf of Mexico and the resulting impact on ecosystem functioning, 
species composition, and potential trophic pathway alterations, and 
concluded that the ecosystem and trophic effects of these removals are 
unknown. Based on the SRT's scoring, the threat from trophic impacts 
due to commercial harvest of prey is a ``low'' severity threat with 
``low'' certainty.
    Climate Change--The impacts of climate change on cetaceans are not 
easily quantified; however direct and indirect impacts are expected 
(Evans and Bj[oslash]rge 2013). Potential impacts of climate change on 
marine mammals include range shifts, habitat degradation or loss, 
changes to the food web, susceptibility to disease and contaminants, 
and thermal intolerance (MacLeod 2009, Evans and Bj[oslash]rge 2013). 
The restricted distribution of the GOMx Bryde's whale is a concern, as 
climate change may disproportionately affect species with specialized 
or restricted habitat requirements. As water temperatures rise, many 
marine species will have to shift their distributions

[[Page 88650]]

northward or in a direction that maintains a near-constant environment 
(e.g., temperature and prey availability) (Evans et al., 2010). Within 
the Gulf of Mexico, GOMx Bryde's whales have little room to shift their 
distribution northward into cooler waters. Furthermore, the predicted 
changes in freshwater inflow and the associated effects on productivity 
may affect the health of the Gulf of Mexico. While recognizing the 
potential threat that climate change poses to the GOMx Bryde's whale, 
the SRT considered that there are more significant and immediate 
pressures on the GOMx Bryde's whale (Rosel et al., 2016). The SRT 
assigned the threat of climate change as a ``low'' severity threat to 
GOMx Bryde's whale with ``low'' certainty.
    Plastics and Marine Debris--Plastics comprise 60-80 percent of all 
marine debris (Baulch and Perry 2014), and derelict fishing gear is the 
second most common form of marine debris (National Oceanic Service 
2015). The interactions of marine mammals with marine debris in the 
Gulf of Mexico are not frequently documented and the SRT did not find 
any documented cases specific to Bryde's whale (NOAA Fisheries Marine 
Mammal Health and Stranding Response Database). Less than one percent 
of marine mammal strandings in the Gulf of Mexico from 2000-2014 showed 
evidence of entanglement or ingestion of marine debris (NOAA Fisheries 
Marine Mammal Health and Stranding Response Database, March 21, 2016). 
While noting that the records of reported marine mammal strandings may 
not be comprehensive, the SRT's scoring ranked this threat as ``low'' 
severity with ``low'' certainty (Rosel et al., 2016).
    Aquaculture--There are currently no aquaculture facilities in the 
U.S. waters of the Gulf of Mexico. However, a final rule was published 
on January 13, 2016 (81 FR 1761) regulating offshore marine aquaculture 
in the Gulf of Mexico and establishing a regional permitting process. 
We note that this final rule is currently under challenge in a pending 
court proceeding, Gulf Fishermen's Association, et al. v. NMFS, 16-cv-
01271 (E.D. La.). The associated Fishery Management Plan for Regulating 
Offshore Aquaculture in the Gulf of Mexico (FMP) specifies that each 
facility must satisfy a list of siting requirements and conditions and 
specifies that an application may be denied for potential risks to 
essential fish habitat, endangered and threatened species, marine 
mammals, wild fish and invertebrate stocks, public health, or safety 
(Gulf of Mexico Fishery Management Council and National Marine 
Fisheries Service 2009). Marine mammals are known to interact with 
aquaculture facilities through physical interaction with nets, ropes, 
twine and anchor lines (Price and Marris 2013). Because each 
application, including the proposed location, will be considered on a 
case-by-case basis, taking into account potential impacts to marine 
mammals, and no aquaculture facilities are currently sited in the Gulf 
of Mexico, the SRT scoring indicates that the SRT found aquaculture to 
be a ``low'' severity threat with ``low'' certainty.
    Anthropogenic Noise--A variety of anthropogenic noise sources, such 
as energy exploration and development and shipping have considerable 
energy at low frequencies (<100 Hz) (Sodal 1999; Nieukirk et al., 2004; 
Hildebrand 2009; Nieukirk et al., 2012) and are pervasive in the Gulf 
of Mexico (Rosel et al., 2016). Baleen whales produce calls that span a 
similar low frequency range (20 Hz-30 kHz), and therefore, presumably 
these species' best hearing abilities fall within this range, and are 
most impacted by low-frequency sounds (Richardson et al., 1995, Ketten 
1997, Ketten et al., 2013, Cranford and Krysl 2015). Marine mammals 
rely heavily on their hearing to detect and interpret communication and 
environmental cues to select mates, find food, maintain group structure 
and relationships, avoid predators, navigate, and perform other 
critical life functions (Rosel et al., 2016). As noise levels rise in 
the marine environment, there are a variety of direct and indirect 
adverse physical and behavioral effects to marine mammals such as 
death, hearing loss or impairment, stress, behavioral changes, 
physiological effects, reduced foraging success, reduced reproductive 
success, masking of communication and environmental cues, and habitat 
displacement (Richardson et al., 1995, Southall et al., 2007, Francis 
and Barber 2013). The SRT evaluated anthropogenic noise and separately 
assessed, as detailed below, noise from aircraft and vessels associated 
with oil and gas activities, seismic surveys associated with oil and 
gas activities, noise associated with military training and exercises, 
noise associated with commercial fisheries and scientific acoustics, 
and noise associated with vessels and shipping traffic.
    Noise Generated from Aircraft and Vessels and Oil Drilling and 
Production Associated with Oil and Gas Activities--Aircraft and vessel 
operations (service vessels, etc.) support outer continental shelf oil 
and gas activities in the Gulf of Mexico. Routine aircraft overflights 
may interrupt and elicit a startle response from marine mammals nearby 
(Richardson et al., 1995). However, if marine mammals are nearby, the 
disturbance caused by helicopters approaching or departing OCS oil and 
gas facilities will be short in duration and transient in nature. The 
SRT reasoned that aircraft and vessel operations may ensonify large 
areas, but due to the lack of oil and gas activities currently in the 
eastern Gulf of Mexico, the threat from service aircraft and vessel 
noise to GOMx Bryde's whale should be minimal.
    Oil drilling and production activities produce low-frequency 
underwater sounds that are in the frequency range detectable by the 
GOMx Bryde's whale and, given the amount of drilling activity and 
platforms in the central and western Gulf of Mexico, noise levels are 
already high. While there are currently no wells being drilled in the 
eastern Gulf of Mexico, and no production platforms in place, the 
potential opening of the EPA that overlaps the GOMx Bryde's whale BIA 
for oil and gas exploration is of considerable concern (Rosel et al., 
2016). Based on the SRT's scoring, the threat of noise generated from 
aircraft and vessels associated with oil and gas activities and noise 
from drilling and oil production is a ``moderate'' threat, with a 
``moderate'' level of certainty for noise associated with aircraft and 
vessels, and the SRT assigned a ``low'' level of certainty for noise 
generated from drilling and oil production.
    Seismic Survey Noise Associated with Oil and Gas Activities--The 
northern Gulf of Mexico is an area of high seismic survey activity; 
seismic surveys are typically conducted 24 hours a day, 365-days a 
year, using airguns that are a source of primarily low-frequency sound 
(Sodal 1999), and that overlap with ranges baleen whales use for 
communication and hearing (Rosel et al., 2016). These low-frequency 
sounds can travel substantial distances and airgun sounds have been 
recorded many hundreds of miles away from the survey locations 
(Nieukirk et al., 2004). Seismic surveys have the potential to cause 
serious injury to animals within 100m-1km of airguns with source levels 
of 230 dB re 1 [micro]Pa (peak) or higher (Southall et al., 2007). 
Behavioral changes following seismic surveys, specifically changes in 
vocal behavior and habitat avoidance, have been documented for baleen 
whales (Malme et al., 1984, McCauley et al., 1998, Gordon et al., 2001, 
Blackwell et al., 2015). While reactions of Bryde's whales to seismic 
surveys have not been studied, the

[[Page 88651]]

auditory abilities of all baleen whale species are considered to be 
broadly similar based upon vocalization frequencies and ear anatomy 
(Ketten 1998). There are currently few seismic surveys occurring in the 
eastern Gulf of Mexico, due in part to the moratorium on energy 
exploration in the EPA; however, the SRT noted that, given the ability 
of low-frequency sounds to travel substantial distances, sounds from 
nearby surveys may be impacting the GOMx Bryde's whales in the BIA. The 
SRT scorned anthropogenic noise associated with seismic surveys as a 
``high'' severity threat with ``moderate'' certainty.
    Noise Associated with Military Training and Exercises--Military 
training and exercises use active sonar sources and explosives as part 
of their operations and each of these sources have the potential to 
impact marine mammals (Rosel et al., 2016). However, as discussed 
above, most military activities that occur in the Gulf of Mexico take 
place outside of the GOMx Bryde's whale BIA and the Navy expanded their 
Planning Awareness Area to encompass the BIA (see Military Activities 
above). The SRT found this threat to be less likely to have a negative 
impact on the GOMx Bryde's whale compared to other threats associated 
with the anthropogenic noise considered in this sub-category. 
Therefore, the SRT assigned the threat of noise associated with 
military training and exercises as ``low'' in severity with a 
``moderate'' level of certainty.
    Noise Associated with Commercial Fisheries and Scientific 
Acoustics--Commercial and scientific vessels employ active sonar for 
the detection, localization, and classification of underwater targets, 
including the seafloor, plankton, fish, and human divers (Hildebrand 
2009). Source frequencies of many of these sonars are likely above the 
frequency range for Bryde's whale hearing (Watkins 1986, Au et al. 
2006, Tubelli et al. 2012). Recent technological advancements, such as 
Ocean Acoustic Waveguide Remote Sensing (OAWRS) system, use low-
frequency acoustics that have the potential to impact baleen whale 
behavior (Risch et al., 2012). However, the SRT concluded these low-
frequency systems are not likely to be used in U.S. waters in the 
future (Rosel et al., 2016). Because the acoustic frequencies 
associated with the sonar systems employed by commercial fisheries and 
scientific vessels are not within the range of GOMx Bryde's whale 
hearing and are not likely to be used in the Gulf of Mexico, the SRT 
assigned the threat of noise associated with commercial fisheries and 
scientific acoustics a ranking of ``low'' in severity with ``low'' 
certainty.
    Noise Associated with Shipping Traffic and Vessels--Noise from 
shipping traffic is an unintended byproduct of shipping and depends on 
factors such as ship type, load, speed, ship hull and propeller design; 
noise levels increase with increasing speed and vessel size (Allen et 
al., 2012, McKella et al 2012b, Rudd et al., 2015). Shipping noise is 
characterized by mainly low frequencies (Hermannsen et al., 2014) and 
contributes significantly to low-frequency noise in the marine 
environment (National Research Council 2003, Hildebrand 2009). 
Approximately 50 percent of U.S. merchant vessel traffic (as measured 
by port calls or tonnage for merchant vessels over 1000 gross tons) 
occurs at U.S. Gulf of Mexico ports, indicating shipping activity is a 
significant source of noise in this region. Noise is likely to increase 
as shipping trends indicate that faster, larger ships will traverse the 
Gulf of Mexico following expansion of the Panama Canal (Rosel et al., 
2016).
    Shipping noise in the northeast United States was predicted to 
reduce the communication space of humpback whales, right whales, and 
fin whales by 8 percent, 77 percent, and 20 percent, respectively, by 
masking their calls (Clark et al. 2009). Because Bryde's whale call 
source levels are most similar to those of right whales, the SRT found 
they may be similarly impacted (Rosel et al., 2016). Documented impacts 
of vessel and shipping noise on marine mammals, like the GOMx Bryde's 
whale, include: habitat displacement; changes in diving and foraging 
behavior; changes in vocalization behavior; and altered stress hormone 
levels (Rosel et al., 2016).
    The SRT found that there is a high level of low frequency noise 
caused by shipping activity in the Gulf of Mexico, and that it is 
likely the GOMx Bryde's whale is experiencing significant biological 
impacts as a result. The impacts to the GOMx Bryde's whale are assumed 
to be similar to those observed in other low frequency hearing baleen 
whale species, and include increased stress hormone levels, changes in 
dive and foraging behavior and communication, and habitat displacement. 
The SRT assigned the threat of noise associated with shipping traffic 
and vessels a score of ``moderate'' severity threat with ``moderate'' 
certainty.

Small Population Concerns

    The final sub-category considered by the SRT under ESA Factor E was 
small population concerns. The SRT considered Allee effects, 
demographic stochasticity, genetics, k-selected life-history 
parameters, and stochastic and catastrophic events under this sub-
category.
    Allee Effects--If a population is critically small in size, 
individuals may have difficulty finding a mate. The probability of 
finding a mate depends largely on density (i.e., abundance per area) 
rather than absolute abundance alone (Rosel et al., 2016). As 
previously discussed, noise from ships and industrial oil activities, 
including seismic exploration, could mask mating calls and contribute 
to reduced fecundity of the GOMx Bryde's whale (Rosel et al., 2016). 
The small population size (i.e., likely less than 100 individuals) may 
mean that Allee effects are occurring, making it difficult for 
individual whales to find one another for breeding, thereby reducing 
the population growth rate. The SRT's scored the impacts from Allee 
effects as a ``moderate'' threat in both severity and certainty.
    Demographic Stochasticity--Demographic stochasticity refers to the 
variability of annual population change arising from random birth and 
death events at the individual level. Populations that are small in 
number are more vulnerable to adverse effects from demographic 
stochasticity. Demographic stochasticity is also more problematic for 
slowly reproducing species, such as GOMx Bryde's whales, which under 
normal conditions are likely to produce a calf every two to three 
years, similar to Bryde's whales worldwide and Eden's whale. Mean 
population growth rates can be reduced by variances in inter-annual 
growth rates, and this variance steadily increases as the population 
size decreases (Goodman 1987). The SRT also noted that, while skewed 
sex ratios do not currently appear to be a problem for GOMx Bryde's 
whales, their low calving rate and small population size create a 
higher probability of developing skewed sex ratios through chance 
alone. The SRT's scored the threat from impacts from demographic 
stochasticity as ``high'' in both severity and certainty.
    Genetics--Genetic stochasticity results from three separate 
factors: Inbreeding depression, loss of potentially adaptive genetic 
diversity and mutation accumulation (Frankham 2005, Reed 2005). The SRT 
concluded that the very small population size and documented low level 
of genetic

[[Page 88652]]

diversity (Rosel and Wilcox 2014) indicates that the GOMx Bryde's whale 
is likely already experiencing inbreeding (mating with related 
individuals) that could lead to a loss of potentially adaptive genetic 
diversity and accumulation of deleterious mutations (Frankham 2005, 
Reed 2005). Applying the estimate from Taylor et al., (2007) of 0.51 
for the proportion of a Bryde's whale population that is mature, and 
assuming a stable age distribution, the SRT concluded there would be at 
most 50 mature individuals for the GOMx Bryde's whale population, 
putting the whales at immediate recognized risk for genetic factors. 
Even with a 50-50 sex ratio, the SRT concluded that current abundance 
estimates are so low that current Bryde's whale population levels would 
meet any genetic risk threshold for decreased population growth due to 
inbreeding depression and potential loss of adaptive genetic diversity 
(Rosel et al., 2016). The SRT scored the threat of genetic 
stochasticity as ``high'' in both severity and certainty.
    K-Selected Life History Parameters--In general all whales are 
considered as k-selected species due to their life history 
characteristics of large-size, late-maturity, and iteroparous 
reproduction that is energetically expensive, resulting in few 
offspring. K-selected life history characteristics in and of themselves 
are not a problem for baleen whales, but a small population size 
coupled with a low productivity rate further hinders population growth 
and increases the time frame for recovery when, as with the GOMx 
Bryde's whale, the population size is small and overly vulnerable to 
threats (Rosel et al., 2016). The SRT assigned the threat from k-
selective life history parameters a score of ``high'' in severity and 
certainty.
    Stochastic and Catastrophic Events--The small number of GOMx 
Bryde's whales and their restricted range (i.e., De Soto Canyon area of 
the northeastern Gulf of Mexico) exacerbates the species' vulnerability 
to stochastic and catastrophic events. Further, the GOMx Bryde's whales 
are in close proximity to oil extraction developments, extreme weather 
events, and HABs. For example, an analysis of the impacts of Deepwater 
Horizon oil spill on cetacean stocks in the Gulf of Mexico estimated 
that 17 percent of the GOMx Bryde's whale population was killed (DWH 
Trustees 2016). The SRT scored the threat from stochastic and 
catastrophic events on the GOMx Bryde's whale as ``high'' in severity 
with ``high'' certainty.
Summary of Factor E
    The overall threat rank for ESA Factor E by the SRT was influenced 
by the suite of threats assessed by the SRT. Based on the SRT's 
scoring, vessel collision, followed by fishing gear entanglements, 
presents the most serious individual threats of those considered in the 
generic ``other natural and human factors,'' category. The threat of 
vessel collision is a significant source of mortality for a variety of 
coastal whale species and several important commercial shipping lanes 
travel through the GOMx Bryde's whale BIA (Rosel et al., 2016). Fishing 
gear entanglement from the pelagic longline and bottom longline 
fisheries is a threat due to the spatial overlap between these 
fisheries and the Bryde's whale BIA, and the potential for interactions 
given the whale's foraging behavior (Rosel et al., 2016). The SRT's 
overall threat ranking for the generic ``other natural or human factors 
category'' was moderate-high. The SRT's overall threat ranking for the 
sub-category of ``anthropogenic noise'' was ``high'', which was driven 
strongly by the impacts of seismic noise, shipping noise, and oil and 
gas activities. The greatest threat identified by the SRT under ESA 
Factor E was ``small population concerns, which the SRT's scoring 
unanimously assigned a ``high'' overall threat rank.
    In summary, the SRT found the level of anthropogenic noise in the 
Gulf of Mexico, the cumulative threat posed by energy exploration, 
development and production, and the risk of vessel collisions, in 
combination with the small population size, are threats that are likely 
to eliminate or seriously degrade the population. The overall rank the 
SRT assigned for Factor E was ``high'' (i.e., two high overall ranks 
and one moderate-high overall rank), indicating that there are a high 
number of threats that are moderately or very likely to contribute to 
the decline of the GOMx Bryde's whale. Considering the assessment 
completed by the SRT, we determine that the threats considered under 
Factor E are currently increasing the risk of extinction for the GOMx 
Bryde's whale.

NMFS' Conclusions From Threats Evaluation

    The most serious threats to the GOMx Bryde's whale are: Energy 
exploration and development, oil spills and oil spill response, vessel 
collision, anthropogenic noise, and the effects of small population 
size. We consider these threats, under ESA section 4(a)(1) factors A 
and E, as overall ``high'' threats. We agree with the SRT's assessment 
that these threats are currently affecting the status of the GOMx 
Bryde's whale, and find that they are putting it at a heightened risk 
of extinction. We also agree with the SRT's characterization of factors 
B and C, overutilization for commercial, recreational, scientific, or 
educational purposes and disease, parasites, or predation, and their 
low overall ranking. We find that these are not factors that are likely 
contributing to the extinction risk for the GOMx Bryde's whale. 
Finally, we agree with the SRT's overall conclusion for Factor D, that 
existing regulatory measures have not adequately prevented the GOMx 
Bryde's whale from reaching its current status, given the presence of 
current threats to the GOMx Bryde's whale identified under Factors A 
and E.

Demographic Risk Analysis

    The SRT also evaluated four demographic factors to assess the 
degree of extinction risk: Abundance, spatial distribution, growth/
productivity, and genetic diversity. These demographic criteria have 
been used in previous NMFS status reviews to summarize and assess a 
population's extinction risk due to demographic processes. The SRT used 
the following definitions to rank these factors: 1 = ``No or low risk: 
it is unlikely that this factor contributes significantly to risk of 
extinction, either by itself or in combination with other factors;'' 2 
= ``Low risk: it is unlikely that this factor contributes significantly 
to risk of extinction by itself, but some concern that it may 
contribute, in combination with other factors;'' 3 = ``Moderate risk: 
it is likely that this factor in combination with others contributes 
significantly to risk of extinction;'' 4 = ``High risk: it is likely 
that this factor, by itself, contributes significantly to risk of 
extinction''; and 5 = ``Very high risk: it is highly likely that this 
factor, by itself, contributes significantly to risk of extinction.'' 
As described in detail below, the SRT concluded that each of these four 
demographic factors are likely to contribute significantly to the risk 
of extinction for the GOMx Bryde's whale.
    The SRT determined that both abundance and spatial distribution 
were ``very high risk'' factors, meaning that it is highly likely that 
each factor, by itself, contributes significantly to the risk of 
extinction. The SRT concluded the best available science indicated: (1) 
The number of GOMx Bryde's whales is likely less than 100 mature 
individuals, and (2) their current distribution restricted to a small 
region along the continental shelf break (100-300 m) in the De Soto 
Canyon makes them

[[Page 88653]]

vulnerable to catastrophe. The SRT concluded that the GOMx Bryde's 
whale constitutes a dangerously small population, at or below the near-
extinction population level, and the species' restricted range makes it 
vulnerable to a single catastrophic event (Rosel et al., 2016).
    The SRT ranked both growth/productivity and genetic diversity as 
``high'' risk factors, meaning that it is likely that each factor, by 
itself, contributes significantly to the risk of extinction. The SRT 
noted that the life-history characteristics of the GOMx Bryde's whale 
(i.e., late-maturing, long gestation, single offspring) result in a 
slower recovery ability from their small population size and leads to a 
longer time during which a risk factor like a catastrophe could occur 
(Rosel et al., 2016). Allee effects were also identified by the SRT as 
increasing extinction risk because the small number of individuals 
reduces population growth rate through mate limitation (Rosel et al., 
2016). Similarly, the low level of genetic diversity, documented in 
both mtDNA and nuclear DNA by Rosel and Wilcox (2014), combined with 
the small population size, means that individuals are likely breeding 
with related individuals and inbreeding depression may be occurring, 
resulting in a loss of genetic diversity (Rosel et al., 2016).

Extinction Risk Analysis

    The SRT considered the information provided in the Status Review 
report and demographic risk factors to conduct an Extinction Risk 
Analysis (ERA). The SRT summarized its ERA for the GOMx Bryde's whale, 
placing it in the context of our agency guidelines on how to synthesize 
extinction risk (NMFS 2015). Those agency guidelines define the high 
extinction risk category as:

    A species or DPS with a high risk of extinction is at or near a 
level of abundance, productivity, spatial structure, and/or 
diversity that places its continued persistence in question. The 
demographics of a species or DPS at such a high level of risk may be 
highly uncertain and strongly influenced by stochastic or 
depensatory processes. Similarly, a species or DPS may be at high 
risk of extinction if it faces clear and present threats (e.g., 
confinement to a small geographic area; imminent destruction, 
modification, or curtailment of its habitat; or disease epidemic) 
that are likely to create present and substantial demographic risks.

Applying this standard, the SRT unanimously agreed that the GOMx 
Bryde's whale has a high risk of extinction.
    The SRT provided the following summary of the concerns leading to 
its overall extinction risk assessment:

    The GOMx Bryde's whale population is very small and is 
restricted to a small habitat area in the De Soto Canyon region of 
the northeastern [Gulf of Mexico]. Their level of genetic divergence 
from other Bryde's whales worldwide indicates they are 
reproductively isolated and on a unique evolutionary trajectory. The 
Society for Marine Mammalogy's Committee on Taxonomy concluded they 
represent at least an unnamed subspecies of Bryde's whales. Although 
the historic population size is unknown, whaling data indicate their 
distribution in the [Gulf of Mexico] was once much broader. The Team 
concluded, therefore, based on the best available scientific data, 
that there has been a range contraction such that their primary 
range is restricted to the northeastern [Gulf of Mexico] although 
there are limited data from outside U.S. waters. The north-central 
and western [Gulf of Mexico] contains some of the most 
industrialized marine waters in the U.S. due to expansive energy 
exploration and production, and also experiences significant 
commercial shipping traffic and commercial fishing activity. The 
area in the northeastern [Gulf of Mexico], where all verified 
sightings of Bryde's whales have been recorded during cetacean 
surveys, has experienced the least amount of energy exploration, due 
in part to a moratorium put in place in 2006. However, this 
moratorium expires in 2022 and the eastern [Gulf of Mexico] could be 
exposed to increased energy activities. Commercial fishing and 
vessel traffic also could affect the whales in the eastern [Gulf of 
Mexico].
    The Team concluded that the small population size alone put the 
GOMx Bryde's whale at high risk of extinction. The small size of 
this population makes it vulnerable to inbreeding depression, 
demographic stochasticity, and stochastic and catastrophic events. 
The combination of small size plus risk factors that may have 
affected the population in the past and may affect it in the future, 
further increase the extinction risk. These factors include, in 
particular, impacts due to energy exploration (e.g., habitat 
modification, noise from seismic surveys, and shipping) and energy 
production (e.g., oil spills), and vessel collisions. The Team's 
concern for this group of whales is further increased by uncertainty 
regarding the cause(s) of its small population size, its limited 
distribution, current and future threats, and the long-term 
viability of the population (Rosel et al., 2016).

    We consider the SRT's approach to assessing the extinction risk for 
GOMx Bryde's whale appropriate, consistent with our agency guidance, 
and based on the best scientific and commercial information available. 
Based on the key conclusions from the Status Review report, including 
the ERA (Rosel et al., 2016), we find that the GOMx Bryde's whale is a 
species, as defined by the ESA, which is in danger of extinction 
throughout all of its range, as a result of ESA Factors A (the present 
or threatened destruction, modification or curtailment of a species' 
habitat or range), D (inadequacy of existing regulatory mechanisms), 
and E (other natural or manmade factors affecting its continued 
existence). Accordingly, we find that the species meets the definition 
of an endangered species.

Protective Efforts

    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 to protect 
the species. To evaluate the efficacy of domestic efforts that have not 
yet been implemented or that have been implemented, but have not yet 
demonstrated to be effective, the Services developed a joint ``Policy 
for Evaluation of Conservation Efforts When Making Listing Decisions'' 
(PECE) (68 FR 15100; March 28, 2003). The PECE is designed to ensure 
consistent and adequate evaluation on whether domestic conservation 
efforts that have been recently adopted or implemented, but not yet 
proven to be successful, will result in recovering the species to the 
point at which listing is not warranted or contribute to forming the 
basis for listing a species as threatened rather than endangered. The 
PECE is expected to facilitate the development of conservation efforts 
by states and other entities that sufficiently improve a species' 
status so as to make listing the species as threatened or endangered 
unnecessary.
    The PECE establishes two overarching criteria to use in evaluating 
efforts identified in conservations plans, conservation agreements, 
management plans or similar documents: (1) The certainty that the 
conservation efforts will be implemented; and (2) the certainty that 
the efforts will be effective. We have considered the actions 
identified by the SRT (i.e., potential future DWH PDARP restoration 
activities and Gulf of Mexico Marine Assessment Program for Protected 
Species (GoMMAPPS) as conservation efforts and we have concluded that 
they do not meet the PECE policy criteria (see analysis below).
    The Status Review report (Rosel et al., 2016) summarized two known 
conservation efforts, both of which are planned and have yet to be 
implemented, which we further assess here: The DWH PDARP and the 
GoMMAPPS. The restoration plan in the PDARP is a framework for planning 
future restoration projects. For marine mammals, the PDARP focuses on 
restoration activities that support population resilience, reduce 
further harm or impacts, and complement existing management priorities, 
with the

[[Page 88654]]

goal of compensating for the population injuries suffered by each 
marine mammal stock. GOMx Bryde's whales were the most impacted 
offshore cetacean by the DWH oil spill, suffering an estimated 22 
percent maximum decline in population size (DWH Trustees 2016). 
Although specific projects are not yet identified to implement Bryde's 
whale restoration, we anticipate that they should benefit the 
population, but, considering the species' life history, population 
recovery to pre-spill levels will take decades. More importantly, the 
population estimates considered by the SRT were pre-spill and were 
still found to represent a high extinction risk. Therefore, the 
conservation benefits that may be expected through implementation of 
the PDARP would not be expected to reduce the extinction risk for 
Bryde's whale to a degree where this population qualifies only as 
threatened or where that listing is not warranted.
    We also considered the proposed results from GoMMAPPS and its 
potential to protect and restore the population of GOMx Bryde's whale. 
The purpose of this program is to improve information about abundance, 
distribution, habitat use, and behavior of living marine resources 
(e.g., marine mammals, sea turtles, sea birds) in the Gulf of Mexico, 
as well as to mitigate and monitor potential impacts of human 
activities. GoMMAPPS promotes collaborations via data sharing with 
other research efforts in the Gulf of Mexico, including potentially 
with Mexico. Given the scope of the program, studies are likely to 
increase scientific understanding of the GOMx Bryde's whale and its 
habitat, support management decisions, and monitor potential impacts of 
human activities. GoMMAPPS is likely to provide significantly improved 
information on the status of protected species in the Gulf of Mexico, 
possibly including GOMx Bryde's whales, and we anticipate that this 
information can be used to protect Bryde's whales more effectively in 
the future. However, these conservation benefits will require secondary 
actions that are not currently known. Therefore, we conclude that the 
conservation benefits from GOMAPPS to Bryde's whales are too diffuse 
and uncertain to be considered effective measures under our PECE 
policy. After taking into account these conservation efforts and the 
current status of GOMx Bryde's whale, our evaluation of the section 
4(a)(1) factors is that the conservation efforts identified cannot be 
considered effective measures in reducing the current extinction risk.

Proposed Listing Determination

    Section 4(b)(1) of the ESA requires that we make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account those efforts, if any, being made by any state or 
foreign nation, or political subdivisions thereof, to protect and 
conserve the species. We have reviewed the best available scientific 
and commercial information contained in the Status Review report, the 
Threats Evaluation, Demographic Evaluation, and the ERA (Rosel et al., 
2016). We found that the GOMx Bryde's whale is a species, as defined by 
the ESA, which is in danger of extinction throughout all of its range 
as a result of ESA section 4(a)(1) Factors A, D, and E. After 
considering efforts being made to protect the species, we could not 
conclude that existing or proposed conservation efforts would alter its 
extinction risk. Accordingly, we propose to list the GOMx Bryde's whale 
as an endangered species.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery plans (16 U.S.C. 1533(f)), 
critical habitat designations (16 U.S.C. 1533(a)(3)(A)), Federal agency 
consultation requirements (16 U.S.C. 1536), and protective regulations 
(16 U.S.C. 1533(d)). Recognition of the species' status through listing 
promotes conservation actions by Federal and state agencies, private 
groups, and individuals, as well as the international community. Both a 
recovery program and designation of critical habitat could result from 
this final listing. Given its narrow range in the De Soto Canyon region 
of the northeastern Gulf of Mexico, and existing threats, a regional 
cooperative effort to protect and restore the population is necessary. 
Federal, state, and the private sectors will need to cooperate to 
conserve listed GOMx Bryde's whales and the ecosystem upon which they 
depend.

Marine Mammal Protection Act

    The MMPA provides protections to all marine mammals, such as 
Bryde's whales, whether they are listed under the ESA or not. In 
addition, the MMPA provides heightened protections to marine mammals 
designated as ``depleted.'' Section 3(1) of the MMPA defines 
``depleted'' as ``any case in which'': (1) The Secretary ``determines 
that a species or population stock is below its optimum sustainable 
population''; (2) a state to which authority has been delegated makes 
the same determination; or (3) a species or stock ``is listed as an 
endangered species or a threatened species under the [ESA]'' (16 U.S.C. 
1362(1)). Section 115(a)(1) of the MMPA establishes that ``[i]n any 
action by the Secretary to determine if a species or stock should be 
designated as depleted, or should no longer be designated as 
depleted,'' such determination must be made by rule, after public 
notice and an opportunity for comment (16 U.S.C. 1383b(a)(1)). It is 
our position that a marine mammal species or stock automatically gains 
``depleted'' status under the MMPA when it is listed under the ESA.

Identifying ESA Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA and joint NMFS/U.S. Fish and Wildlife 
Service regulations require Federal agencies to consult with us on any 
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 can conclude that examples of Federal actions 
that may affect GOMx Bryde's whale include, but are not limited to: 
Authorizations for energy exploration (e.g., habitat modification, 
noise from seismic surveys, and shipping), energy production (e.g., oil 
drilling and production), actions that directly or indirectly introduce 
vessel traffic that could result in collisions, and military activities 
and fisheries regulations that may impact the species.

Take Prohibitions

    Because we are proposing to list this species as endangered, all of 
the take prohibitions of section 9(a)(1) of the ESA would apply. These 
include prohibitions against the import, export, use in foreign 
commerce, or ``take'' of the species. ``Take'' is defined under the ESA 
as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct.'' These 
prohibitions apply to all persons subject to the jurisdiction of the 
United States, including in the United States or on the high seas.

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

[[Page 88655]]

species and (b) 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 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 the species to the point at which listing under the ESA is no 
longer necessary. Critical habitat may also include areas unoccupied by 
GOMx Bryde's whale if those areas are essential to the conservation of 
the species.
    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. Pursuant to 
50 CFR 424.12(a), designation of critical habitat is not determinable 
when one or both of the following situations exist: (i) Data sufficient 
to perform required analyses are lacking; or (ii) The biological needs 
of the species are not sufficiently well known to identify any area 
that meets the definition of ``critical habitat.'' Although we have 
gathered information through the Status Review report and public 
comment periods on the habitat occupied by this species, we currently 
do not have enough information to determine what physical and 
biological feature(s) within that habitat facilitate the species' life 
history strategy and are thus essential to the conservation of GOMx 
Bryde's whale, and may require special management considerations or 
protection. To the maximum extent prudent and determinable, we will 
publish a proposed designation of critical habitat for GOMx Bryde's 
whale in a separate rule. Designations 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. Once 
critical habitat is designated, section 7 of the ESA requires Federal 
agencies to ensure that they do not fund, authorize, or carry out any 
actions that are likely to destroy or adversely modify that habitat. 
This requirement is in addition to the section 7 requirement that 
Federal agencies ensure that their actions do not jeopardize the 
continued existence of listed species.

Policies on 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 or highly influential scientific information 
disseminated on or after June 16, 2005. To satisfy our requirements 
under the OMB Bulletin, we received peer reviews from three independent 
peer reviewers on the Status Review report (Rosel et al., 2016). All 
peer reviewer comments were addressed prior to dissemination of the 
final Status Review report and publication of this final rule. We 
conclude that these experts' reviews satisfy the requirements for 
``adequate [prior] peer review'' contained in the Bulletin (sec. 
II.2.).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate as possible and informed by the best available 
scientific and commercial information. Therefore, we request comments 
or information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. In particular we seeks comments 
containing: (1) Information, including genetic analyses, regarding the 
classification of the GOMx Bryde's whale as a subspecies; (2) life 
history information including abundance, distribution, diving, and 
foraging patterns; (3) information concerning threats to the species; 
(4) efforts being made to protect the species throughout its current 
range; and (5) other pertinent information regarding the species.
    We are also soliciting information on physical or biological 
features and areas that may support designation of critical habitat for 
the GOMx Bryde's whale. Information provided should identify the 
physical and biological features essential to the conservation of the 
species and areas that contain these features. Areas outside the 
occupied geographical area should also be identified if such areas 
themselves are essential to the conservation of the species. Essential 
features may include, but are not limited to, features specific to the 
species' range, habitat, and life history characteristics within the 
following general categories of habitat features: (1) Space for 
individual growth and normal behaviour; (2) food, or other nutritional 
or physiological requirements; (3) protection from predation; (4) sites 
for reproduction and development of offspring; and (5) habitats that 
are protected from natural or human disturbance or are representative 
of the historical, geographical, and ecological distributions of the 
species (50 CFR 424.12(b)). ESA implementing regulations at 50 CFR 
424.12(h) specify that critical habitat shall not be designated within 
foreign countries or in other areas outside of U.S. jurisdiction. 
Therefore, we request information only on potential areas of critical 
habitat within U.S. jurisdiction. For features and areas potentially 
qualifying as critical habitat, we also request information describing: 
(1) Activities or other threats to the essential features or activities 
that could be affected by designating them as critical habitat, and (2) 
the positive and negative economic, national security and other 
relevant impacts, including benefits to the recovery of the species, 
likely to result if these areas are designated as critical habitat.

Public Hearing

    During the public hearing, a brief opening presentation on the 
proposed rule will be provided before accepting public testimony. 
Written comments may be submitted at the hearing or via the Federal e-
Rulemaking Portal (see ADDRESSES) until the scheduled close of the 
comment period on (January 30, 2017). In the event that attendance at 
the public hearing is large, the time allotted for oral statements may 
be limited. There are no limits on the length of written comments 
submitted to us. Oral and written statements receive equal 
consideration.

Public Hearing Schedule

    The date and location for the public hearing is as follows: St. 
Petersburg, Florida: January 19, 2017, from 6:00 p.m. to 8:00 p.m. at 
NOAA Fisheries, Southeast Regional Office, Dolphin Conference Room, 236 
13th Avenue, South, St. Petersburg, Florida 33701.

Special Accommodations

    This hearing is physically accessible to people with disabilities. 
Requests for sign language interpretation or other accommodations 
should be directed to Calusa Horn (see ADDRESSES) as soon as possible, 
but no later than 7 business days prior to the hearing date.

References

    A complete list of the references used in this proposed rule is 
available upon request, and also available at: http://sero.nmfs.noaa.gov/protected_resources/listing_petitions/species_esa_consideration/index.html.

[[Page 88656]]

Classifications

National Environmental Policy Act

    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 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 will be provided to the 
relevant agencies in each state in which the subject species occurs, 
and these agencies are invited to comment.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

    Dated: December 2, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 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, in the table in paragraph (h), add an entry for 
``Whale, Bryde's (Gulf of Mexico subspecies)'' under MARINE MAMMALS in 
alphabetical order by common name to read as follows:


Sec.  224.101   Enumeration of endangered marine and anadromous 
species.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Species \1\
-----------------------------------------------------------------------------------     Citation(s) for
                                                             Description of listed          listing            Critical habitat          ESA rules
            Common name                  Scientific name             entity            determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Marine mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Whale, Bryde's (Gulf of Mexico       Balaenoptera edeni      Bryde's whales that    [Federal Register       NA...................  NA
 subspecies).                         (unnamed subspecies).   breed and feed in      citation and date
                                                              the Gulf of Mexico.    when published as a
                                                                                     final rule].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. 2016-29412 Filed 12-7-16; 8:45 am]
 BILLING CODE 3510-22-P



                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88639

                                                  SORN for system of records 09–25–                       § 5b.11   Exempt systems.                             meeting the ESA’s definition of a
                                                  0225.                                                   *     *    *     *     *                              species. Based on the Gulf of Mexico
                                                                                                            (b) * * *                                           Bryde’s whale’s small population (likely
                                                  Analysis of Impacts
                                                                                                            (2) * * *                                           fewer than 100 individuals), its life
                                                     The HHS/NIH has examined the                           (vii) * * *                                         history characteristics, its extremely
                                                  impacts of this rule under Executive                      (E) NIH Electronic Research                         limited distribution, and its
                                                  Order 12866 and the Regulatory                          Administration (eRA) Records, HHS/                    vulnerability to existing threats, we
                                                  Flexibility Act (5 U.S.C. 601–612), and                 NIH/OD/OER, 09–25–0225 (e.g.,                         believe that the species faces a high risk
                                                  the Unfunded Mandates Reform Act of                     reference or recommendation letters,                  of extinction. Based on these
                                                  1995 (Pub. L. 104–4). Executive Order                   reviewer critiques, preliminary or final              considerations, described in more detail
                                                  12866 directs agencies to assess all costs              individual overall impact/priority                    within this action, we conclude that the
                                                  and benefits of available regulatory                    scores, and/or assignment of peer                     Gulf of Mexico Bryde’s whale is in
                                                  alternatives and, when regulation is                    reviewers to an application and other                 danger of extinction throughout all of its
                                                  necessary, to select regulatory                         evaluative materials and data compiled                range and meets the definition of an
                                                  approaches that maximize net benefits                   by the NIH Office of Extramural                       endangered species. We are soliciting
                                                  (including potential economic,                          Research).                                            information that may be relevant to
                                                  environmental, public health and safety,                  Dated: October 14, 2016.
                                                                                                                                                                inform both our final listing
                                                  and other advantages; distributive                                                                            determination and designation of
                                                                                                          Francis S. Collins,
                                                  impacts; and equity). The agency                                                                              critical habitat.
                                                                                                          Director, National Institutes of Health.
                                                  believes that this rule is not a significant                                                                  DATES: Information and comments on
                                                  regulatory action under the Executive                     Approved: October 18, 2016.
                                                                                                                                                                the subject action must be received by
                                                  Order.                                                  Sylvia Matthews Burwell,                              January 30, 2017. For the specific date
                                                     The Regulatory Flexibility Act                       Secretary, Department of Health and Human             of the public hearing, see Public Hearing
                                                                                                          Services.                                             section.
                                                  requires agencies to analyze regulatory
                                                  options that would minimize any                         [FR Doc. 2016–29058 Filed 12–7–16; 8:45 am]
                                                                                                                                                                ADDRESSES: You may submit comments,
                                                  significant impact of a rule on small                   BILLING CODE 4140–01–P                                information, or data on this document,
                                                  entities. Because the rule imposes no                                                                         identified by the code NOAA–NMFS–
                                                  duties or obligations on small entities,                                                                      2014–0101 by any of the following
                                                  the agency certifies that the rule will not             DEPARTMENT OF COMMERCE                                methods:
                                                  have a significant economic impact on                                                                            • Electronic submissions: Submit all
                                                  a substantial number of small entities.                 National Oceanic and Atmospheric                      electronic comments via the Federal
                                                                                                          Administration                                        eRulemaking Portal. Go to
                                                     Section 202(a) of the Unfunded
                                                  Mandates Reform Act of 1995 requires                                                                          www.regulations.gov/
                                                                                                          50 CFR Part 224                                       #!docketDetail;D=NOAA-NMFS-2014-
                                                  that agencies prepare a written
                                                  statement, which includes an                            [Docket No. 141216999–6999–02]                        0101, click the ‘‘Comment Now!’’ icon,
                                                  assessment of anticipated costs and                                                                           complete the required fields, and enter
                                                                                                          RIN 0648–XD669                                        or attach your comments;
                                                  benefits, before proposing ‘‘any rule that
                                                  includes any Federal mandate that may                                                                            • Mail: NMFS, Southeast Regional
                                                                                                          Endangered and Threatened Wildlife
                                                  result in the expenditure by State, local,                                                                    Office, 263 13th Avenue South, St.
                                                                                                          and Plants: Notice of 12-Month Finding
                                                  and tribal governments, in the aggregate,                                                                     Petersburg, FL 33701;
                                                                                                          on a Petition To List the Gulf of Mexico                 • Hand delivery: You may hand
                                                  or by the private sector, of $100,000,000               Bryde’s Whale as Endangered Under
                                                  or more (adjusted annually for inflation)                                                                     deliver written information to our office
                                                                                                          the Endangered Species Act (ESA)                      during normal business hours at the
                                                  in any one year.’’ The current threshold
                                                  after adjustment for inflation is $144                  AGENCY:  National Marine Fisheries                    street address given above.
                                                  million, using the most current (2015)                  Service (NMFS), National Oceanic and                     The Status Review of Bryde’s Whales
                                                  Implicit Price Deflator for the Gross                   Atmospheric Administration (NOAA),                    in the Gulf of Mexico (Rosel et al., 2016)
                                                  Domestic Product. The NIH does not                      Commerce.                                             and reference list are available by
                                                  expect that a final rule consistent with                ACTION: Proposed rule, request for
                                                                                                                                                                submitting a request to the Species
                                                  this NPRM would result in any 1-year                    comments.                                             Conservation Branch Chief, Protected
                                                  expenditure that would meet or exceed                                                                         Resources Division, NMFS Southeast
                                                  this amount.                                            SUMMARY:   We, NMFS, announce a 12-                   Regional Office, 263 13th Avenue
                                                                                                          month finding and listing determination               South, St. Petersburg, FL 33701–5505,
                                                  List of Subjects in 45 CFR Part 5b                      on a petition to list the Gulf of Mexico              Attn: Bryde’s Whale 12-month Finding.
                                                      Privacy.                                            Bryde’s whale (Balaenoptera edeni) as                 The Status Review report and references
                                                                                                          threatened or endangered under the                    are also available electronically at:
                                                    For the reasons set out in the                        Endangered Species Act (ESA). We have                 http://sero.nmfs.noaa.gov/protected_
                                                  preamble, the Department proposes to                    completed a Status Review report of the               resources/listing_petitions/index.html.
                                                  amend its part 5b of title 45 of the Code               Gulf of Mexico Bryde’s whale in                       FOR FURTHER INFORMATION CONTACT:
                                                  of Federal Regulations, as follows:                     response to a petition submitted by the               Laura Engleby or Calusa Horn, NMFS,
                                                                                                          Natural Resources Defense Council.                    Southeast Regional Office (727) 824–
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                                                  PART 5b—PRIVACY ACT
                                                  REGULATIONS                                             After reviewing the best scientific and               5312 or Marta Nammack, NMFS, Office
                                                                                                          commercial data available, including                  of Protected Resources (301) 427–8469.
                                                  ■ 1. The authority citation for Part 5b                 the Status Review report, and consulting              SUPPLEMENTARY INFORMATION:
                                                  continues to read as follows:                           with the Society for Marine
                                                                                                          Mammology’s Committee on Taxonomy,                    Background
                                                      Authority: 5 U.S.C. 301, 5 U.S.C. 552a.             we have determined that the Gulf of                     On September 18, 2014, we received
                                                  ■ 2. Amend § 5b.11 by adding paragraph                  Mexico Bryde’s whale is taxonomically                 a petition from the Natural Resources
                                                  (b)(2)(vii)(E) as follows:                              a subspecies of the Bryde’s whale thus                Defense Council to list the Gulf of


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                                                  88640                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  Mexico population of Bryde’s whale                      ‘‘species,’’ which is defined in Section              the ERA are discussed below under
                                                  (Balaenoptera edeni) as an endangered                   3 of the ESA to include taxonomic                     ‘‘Extinction Risk Analysis.’’
                                                  species. The petition asserted that the                 species and ‘‘any subspecies of fish, or                 Section 3 of the ESA defines an
                                                  Bryde’s whale in the Gulf of Mexico is                  wildlife, or plants, and any distinct                 endangered species as ‘‘any species
                                                  endangered by at least three of the five                population segment (DPS) of any                       which is in danger of extinction
                                                  ESA section 4(a)(1) factors: present or                 species of vertebrate fish or wildlife                throughout all or a significant portion of
                                                  threatened destruction, modification, or                which interbreeds when mature.’’ Under                its range’’ and a threatened species as
                                                  curtailment of habitat or range;                        NMFS regulations, we must rely not                    one ‘‘which is likely to become an
                                                  inadequacy of existing regulatory                       only on standard taxonomic                            endangered species within the
                                                  mechanisms; and other natural or                        distinctions, but also on the biological              foreseeable future throughout all or a
                                                  manmade factors affecting its continued                 expertise of the agency and the                       significant portion of its range.’’ Thus,
                                                  existence. The petitioner also requested                scientific community, to determine if                 we interpret an ‘‘endangered species’’ to
                                                  that critical habitat be designated                     the relevant taxonomic group is a                     be one that is presently in danger of
                                                  concurrent with listing under the ESA.                                                                        extinction. A ‘‘threatened species,’’ on
                                                                                                          ‘‘species’’ for purposes of the ESA (see
                                                     On April 6, 2015, we published a 90-                                                                       the other hand, is not currently at risk
                                                                                                          50 CFR 424.11). Under Section 4(a)(1) of
                                                  day finding that the petition presented                                                                       of extinction but is likely to become so
                                                                                                          the ESA, we must next determine
                                                  substantial scientific and commercial                                                                         in the foreseeable future. In other words,
                                                  information indicating that the                         whether any species is endangered or                  a key statutory difference between a
                                                  petitioned action may be warranted (80                  threatened due to any of the following                threatened and endangered species is
                                                  FR 18343). At that time, we announced                   five factors: (A) The present or                      the timing of when a species may be in
                                                  the initiation of a formal status review                threatened destruction, modification, or              danger of extinction, either presently
                                                  and requested scientific and commercial                 curtailment of its habitat or range; (B)              (endangered) or in the foreseeable future
                                                  information from the public,                            overutilization for commercial,                       (threatened).
                                                  government agencies, scientific                         recreational, scientific, or educational                 In determining whether the Gulf of
                                                  community, industry, and any other                      purposes; (C) disease or predation; (D)               Mexico population of Bryde’s whale
                                                  interested parties on the delineation of,               the inadequacy of existing regulatory                 meets the standard of endangered or
                                                  threats to, and the status of the Bryde’s               mechanisms; or (E) other natural or                   threatened, we first determined that,
                                                  whale in the Gulf of Mexico including:                  manmade factors affecting its continued               based on the best scientific and
                                                  (1) Historical and current distribution,                existence (sections 4(a)(1)(A) through                commercial data available, the Gulf of
                                                  abundance, and population trends; (2)                   (E)).                                                 Mexico Bryde’s whale is a genetically
                                                  life history and biological information                    To determine whether the Bryde’s                   distinct subspecies of the globally
                                                  including adaptations to ecological                     whale population in the Gulf of Mexico                distributed Bryde’s whale. We next
                                                  settings, genetic analyses to assess                    warrants listing under the ESA, we first              considered the specific life history and
                                                  paternal contribution and population                    formed a Status Review Team (SRT) of                  ecology of the species, the nature of
                                                  connectivity, and movement patterns to                  seven biologists, including six NOAA                  threats, the species’ response to those
                                                  determine population mixing; (3)                        Fisheries Science Center (Southeast,                  threats, and population numbers and
                                                  management measures and regulatory                      Southwest, and Northeast) and                         trends. We considered both the data and
                                                  mechanisms designed to protect the                      Southeast Regional Office personnel and               information summarized in the Status
                                                  species; (4) any current or planned                     one member from the Bureau of Safety                  Review report, as well as the results of
                                                  activities that may adversely impact the                                                                      the ERA. We considered impacts of each
                                                                                                          and Environmental Enforcement—Gulf
                                                  species; and (5) ongoing or planned                                                                           identified threat both individually and
                                                                                                          of Mexico Region, to compile and
                                                  efforts to protect and restore the species                                                                    cumulatively. For purposes of our
                                                                                                          review the best available scientific
                                                  and habitat. We received eight public                                                                         analysis, the mere identification of
                                                                                                          information on Bryde’s whales in the
                                                  comments in response to the 90-day                                                                            factors that could impact a species
                                                                                                          Gulf of Mexico and assess their
                                                  finding, with the majority of comments                                                                        negatively is not sufficient to compel a
                                                                                                          extinction risk. The Status Review                    finding that ESA listing is appropriate.
                                                  in support of the petition. The public
                                                                                                          report prepared by the SRT summarizes                 In considering those factors that might
                                                  provided relevant scientific literature to
                                                                                                          the taxonomy, distribution, abundance,                constitute threats, we look beyond mere
                                                  be considered in the Status Review
                                                                                                          life history, and biology of the species,             exposure of the species to the factor to
                                                  report as well as a recently developed
                                                  density model and abundance estimate.                   identifies threats or stressors affecting             determine whether the species
                                                  Relevant information was incorporated                   the status of the species, and provides               responds, either to a single threat or
                                                  in the Status Review report and in this                 a description of existing regulatory                  multiple threats, in a way that causes
                                                  proposed rule.                                          mechanisms and conservation efforts                   actual impacts at the species level. In
                                                                                                          (Rosel et al., 2016). The Status Review               making this finding, we have considered
                                                  Listing Determinations Under the ESA                    report incorporates information received              and evaluated the best available
                                                     We are responsible for determining                   in response to our request for                        scientific and commercial information,
                                                  whether the Bryde’s whale in the Gulf                   information (80 FR 18343; April 6,                    including information received in
                                                  of Mexico is threatened or endangered                   2015) and comments from three                         response to our 90-day finding.
                                                  under the ESA (16 U.S.C. 1531 et seq.).                 independent peer reviewers.
                                                  Section 4(b)(1)(A) of the ESA requires us               Information from the Status Review                    Biological Review
                                                  to make listing determinations based                    report about the biology of the Gulf of                 This section provides a summary of
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                                                  solely on the best scientific and                       Mexico Bryde’s whale is summarized                    key biological information presented in
                                                  commercial data available after                         below under ‘‘Biological Review.’’ The                the Status Review report (Rosel et al.,
                                                  conducting a review of the status of the                Status Review report also includes a                  2016), which provides the baseline
                                                  species and after taking into account                   threats evaluation and an Extinction                  context and foundation for our listing
                                                  efforts being made by any state or                      Risk Analysis (ERA), conducted by the                 determination. The petition specifically
                                                  foreign nation to protect the species. To               SRT. The results of the threats                       requested that we consider the Gulf of
                                                  be considered for listing under the ESA,                evaluation are discussed below under                  Mexico population of Bryde’s whale as
                                                  a group of organisms must constitute a                  ‘‘Threats Evaluation’’ and the results of             a DPS and list that population as an


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88641

                                                  endangered species. Therefore, the SRT                  differentiation, as it evolves relatively             SRT concluded Bryde’s whales in the
                                                  first considered whether the Bryde’s                    rapidly. Rosel and Wilcox (2014)                      Gulf of Mexico are taxonomically
                                                  whale in the Gulf of Mexico constituted                 identified 25–26 fixed nucleotide                     distinct from the other two Bryde’s
                                                  a DPS, a subspecies, a species, or part                 differences in the mtDNA control region               whale subspecies. The SRT identified
                                                  of the globally distributed Bryde’s whale               between the Bryde’s whale in the Gulf                 the Bryde’s whale occurring in the Gulf
                                                  population. This section also includes                  of Mexico and the two currently                       of Mexico as a separate subspecies
                                                  our conclusions based on the biological                 recognized subspecies (i.e., Eden’s                   called ‘‘GOMx Bryde’s whale,’’ and
                                                  information presented in the Status                     whale and Bryde’s whale) and the sei                  conducted the Status Review
                                                  Review report.                                          whale (B. borealis). They found that the              accordingly.
                                                                                                          level and pattern of mtDNA                               Our regulations state that, ‘‘In
                                                  Species Description                                                                                           determining whether a particular taxon
                                                                                                          differentiation discovered indicates that
                                                     Bryde’s whale (B. edeni) is a large                  Gulf of Mexico Bryde’s whales are as                  or population is a species for the
                                                  baleen whale found in tropical and                      genetically differentiated from other                 purpose of the Act, the Secretary shall
                                                  subtropical waters worldwide. Currently                 Bryde’s whales worldwide, as those                    rely on standard taxonomic distinctions
                                                  two subspecies of Bryde’s whale are                     Bryde’s whales are differentiated from                and biological expertise of the
                                                  recognized: A smaller form, Eden’s                      their most closely-related species, the               Department and scientific community
                                                  whale (B. e. edeni), found in the Indian                sei whale. In addition, genetic analysis              concerning the relevant taxonomic
                                                  and western Pacific oceans primarily in                 of the mtDNA data and data from 42                    group’’ (50 CFR 424.11(a)). Under this
                                                  coastal waters, and a larger, more                      nuclear microsatellite loci (repeating                provision, we must consider the
                                                  pelagic form, Bryde’s whale (B. e.                      base pairs in the DNA) revealed that the              biological expertise of the SRT and the
                                                  brydei), found worldwide. Like Bryde’s                  genetic diversity within the Gulf of                  scientific community, and apply the
                                                  whales found worldwide, the Bryde’s                     Mexico Bryde’s whale population is                    best available science when it indicates
                                                  whale in the Gulf of Mexico has a                       exceedingly low. Rosel and Wilcox                     that a taxonomic classification is
                                                  streamlined and sleek body shape, a                     (2014) concluded that this level of                   outdated or incorrect. The GOMx
                                                  somewhat pointed, flat rostrum with                     genetic divergence suggests a unique                  Bryde’s whale has a high level of genetic
                                                  three prominent ridges (i.e., a large                   evolutionary trajectory for the Gulf of               divergence from the two recognized
                                                  center ridge, and smaller left and right                Mexico population of Bryde’s whale,                   Bryde’s whale subspecies (Eden’s whale
                                                  lateral ridges), a large falcate dorsal fin,            worthy of its own taxonomic standing.                 and Bryde’s whale) elsewhere in the
                                                  and a counter-shaded color that is fairly                                                                     world. Given this information, we relied
                                                  uniformly-dark dorsally and light to                       The SRT considered this level of                   on the biological expertise of the SRT
                                                  pinkish ventrally (Jefferson et al., 2015).             genetic divergence to be significant,                 and the Committee concerning the
                                                  There is no apparent morphological                      indicating that the Bryde’s whale in the              taxonomic status of the Bryde’s whale in
                                                  difference between the Bryde’s whale in                 Gulf of Mexico is a separate subspecies.              the Gulf of Mexico. We agree with the
                                                  the Gulf of Mexico and those                            To confirm its determination, the SRT                 SRT and the Committee’s determination
                                                  worldwide. Baleen from these whales                     asked the Society for Marine                          that the Bryde’s whale in the Gulf of
                                                  has not been thoroughly characterized,                  Mammalogy Committee on Taxonomy                       Mexico is taxonomically at least a
                                                  but the baleen plates from one                          (Committee) for its expert scientific                 subspecies of B. edeni. Based on the best
                                                  individual from the Gulf of Mexico were                 opinion on the level of taxonomic                     available scientific and commercial
                                                  dark gray to black with white bristles                  distinctiveness of the Bryde’s whale in               information described above and in the
                                                  (Rosel et al., 2016). This is consistent                the Gulf of Mexico. The Committee                     Status Review report, we have
                                                  with the description by Mead (1977),                    maintains the official list of marine                 determined that the Bryde’s whale in
                                                  who indicated that the bristles of both                 mammal species and subspecies for the                 the Gulf of Mexico is a taxonomically
                                                  Bryde’s whale subspecies are coarser                    Society for Marine Mammalogy. It                      distinct subspecies and, therefore,
                                                  than those in the closely-related sei                   updates the list as new descriptions of               eligible for listing under the ESA.
                                                  whale. Limited data (n=14) indicate the                 species, subspecies, or taxonomic                     Accordingly, we did not further
                                                  length of Bryde’s whales in the Gulf of                 actions appear in the technical                       consider whether the Gulf of Mexico
                                                  Mexico is intermediate with the                         literature, adhering to principle and                 Bryde’s whale population is a DPS
                                                  currently recognized subspecies. The                    procedures, opinions, and directions set              under the ESA.
                                                  largest Bryde’s whale observed in the                   forth by the International Commission
                                                                                                          on Zoological Nomenclature. The                       Distribution
                                                  Gulf of Mexico was a lactating female at
                                                  12.7 meters (m) in length and the next                  Committee also reviews, as requested,                    The Status Review report (Rosel et al.,
                                                  four largest animals were 11.2–11.6 m in                formal descriptions of new taxa and                   2016) found that the historical
                                                  length (Rosel and Wilcox 2014). Rice                    other taxonomic actions, and provides                 distribution of Bryde’s whale in the Gulf
                                                  (1998) reported adult Eden’s whales                     expert advice on taxonomic descriptions               of Mexico included the northeastern,
                                                  rarely exceed 11.5 m total length and                   and other aspects of marine mammal                    north-central and southern Gulf of
                                                  adult Bryde’s whales from the Atlantic,                 taxonomy. In response to the request                  Mexico. This was based on work by
                                                  Pacific and the Indian Ocean reach                      made by the SRT, all of the Committee                 Reeves et al. (2011), which reviewed
                                                  14.0–15.0 m in length.                                  members who responded (nine out of                    whaling logbooks of ‘‘Yankee whalers’’
                                                                                                          nine) voted it was ‘‘highly likely’’ that             and plotted daily locations of ships
                                                  Genetics                                                Bryde’s whales in the Gulf of Mexico                  during the period 1788–1877 as a proxy
                                                     In a recent genetic analysis of                      comprise at least an undescribed                      for whaling effort, with locations of
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                                                  mitochondrial DNA (mtDNA) samples                       subspecies of what is currently                       species takes and sightings in the Gulf
                                                  taken from Bryde’s whales in the Gulf                   recognized as B. edeni. This result                   of Mexico. These sightings by the
                                                  of Mexico, Rosel and Wilcox (2014)                      constituted the opinion of the                        whalers were generally offshore in
                                                  found that the Gulf of Mexico                           Committee, which makes decisions by                   deeper (e.g., >1000 m) waters, given
                                                  population was genetically distinct from                majority vote (W. F. Perrin, Committee                their primary target of sperm whales
                                                  all other Bryde’s whales worldwide.                     Chairman 2015). Based on the expert                   (Physeter microcephalus). Reeves et al.
                                                  Maternally inherited mtDNA is an                        opinion from the Committee and the                    (2011) concluded whales reported as
                                                  indicator of population-level                           best available scientific information, the            ‘‘finback’’ by ‘‘Yankee whalers’’ in the


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                                                  88642                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  Gulf of Mexico were most likely Bryde’s                 the northeastern Gulf of Mexico, as a                 sightings, strandings, and captures in
                                                  whales, because Bryde’s whales are the                  Biologically Important Area (BIA). BIA’s              the southern Gulf of Mexico identified
                                                  only baleen whales that occur in the                    are reproductive areas, feeding areas,                no Bryde’s whales (Ortega-Ortiz 2002)
                                                  Gulf of Mexico year-round. The SRT                      migratory corridors, and areas in which               as summarized in the Status Review
                                                  found that these data indicate that the                 small and resident populations are                    report (Rosel et al., 2016).
                                                  historical distribution of Bryde’s whales               concentrated. They do not have direct or
                                                                                                                                                                  We agree with the SRT’s findings that
                                                  in the Gulf of Mexico was much broader                  immediate regulatory consequences.
                                                                                                                                                                what is now recognized as the GOMx
                                                  and also included the north-central and                 Rather, they are intended to provide the
                                                  southern Gulf of Mexico.                                best available science to help inform                 Bryde’s whale has been consistently
                                                     Stranding records from the Southeast                 regulatory and management decisions,                  located over the past 25 years along a
                                                  U.S. stranding network, the                             in order to minimize impacts from                     very narrow depth corridor in the
                                                  Smithsonian Institution, and the                        anthropogenic activities on marine                    northeastern Gulf of Mexico, recognized
                                                  literature (Mead 1977, Schmidly 1981,                   mammals (LaBrecque et al., 2015).                     as the GOMx Bryde’s whale BIA.
                                                  Jefferson 1995) include 22 Bryde’s                         Despite the lack of sightings of                   Sightings outside this particular area are
                                                  whales strandings in the Gulf of Mexico                 Bryde’s whales in the Gulf of Mexico                  few, despite a large amount of dedicated
                                                  from 1954–2012, although three have                     outside the BIA, questions remain about               marine mammal survey effort that
                                                  uncertain species identification. Most                  their current distribution in U.S. waters.            included both continental shelf and
                                                  strandings were recorded east of the                    NMFS surveys recorded three baleen                    oceanic waters of the Atlantic Ocean off
                                                  Mississippi River through west central                  whales sighted outside the BIA (i.e., fin             the southeastern United States and the
                                                  Florida, but two were recorded west of                  whale identified in 1992 off Texas and                northern Gulf of Mexico. Historical
                                                  Louisiana. There are no documented                      two sightings of Bryde’s/sei whale in                 whaling records indicate that the
                                                  Bryde’s whale strandings in Texas,                      1992 and 1994 along the shelf break in                historical distribution of the GOMx
                                                  although strandings of fin (B. physalus),               the western Gulf of Mexico). In                       Bryde’s whale in the Gulf of Mexico was
                                                  sei (B. borealis), and minke (B.                        addition, five records of ‘baleen whales’             much broader than it is currently and
                                                  acutorostrata) whales have been                         have been recorded from 2010 to 2014                  included the north-central and southern
                                                  documented.                                             west of the BIA, at the longitude of                  Gulf of Mexico. We agree with the SRT
                                                     We began conducting oceanic (ship)                   western Louisiana in depths similar to                that the BIA, located in the De Soto
                                                  and continental shelf (ship and aerial)                 those in the BIA (Bureau of Safety and                Canyon area of the northeastern Gulf of
                                                  surveys for cetaceans in 1991 that                      Environmental Enforcement,                            Mexico, encompasses the current areal
                                                  continue today. The location of                         unpublished). The two sightings
                                                  shipboard and aerial survey effort in the                                                                     distribution of GOMx Bryde’s whale.
                                                                                                          southwest of Louisiana included
                                                  Gulf of Mexico and Atlantic Ocean was                   photographs showing they were clearly                 Abundance Estimates
                                                  plotted by Roberts et al. (2016). Details               baleen whales. However, the
                                                  of Bryde’s whale sightings from these                   information collected was not sufficient                 All of the abundance estimates for
                                                  surveys are summarized in Waring et al.                 to identify to the species level. In 2015             Bryde’s whale in the northern Gulf of
                                                  (2015). During surveys in 1991, Bryde’s                 a citizen sighted and photographed                    Mexico are based on aerial- or ship-
                                                  whales were sighted in the northeastern                 what most experts believe was a Bryde’s               based line-transect surveys (Buckland et
                                                  Gulf of Mexico along the continental                    whale in the western Gulf of Mexico                   al., 2005). Various surveys conducted
                                                  shelf break, in an area known as the De                 south of the Louisiana-Texas border                   from 1991 to 2012 are discussed in the
                                                  Soto Canyon. In subsequent surveys,                     (Rosel et al., 2016). Given these                     Status Review report (Rosel et al., 2016).
                                                  Bryde’s whales or whales identified as                  observations, the SRT determined that                 As previously stated, nearly all GOMx
                                                  Bryde’s/sei whales (i.e.., where it was                 while it is possible that a small number              Bryde’s whale sightings occurred in the
                                                  not possible to distinguish between a                   of baleen whales occur in U.S. waters                 BIA during surveys that uniformly
                                                  Bryde’s whale or a sei whale), were                     outside the BIA, these observations in                sampled the entire northern Gulf of
                                                  sighted in this same region of the                      the north-central and western Gulf of                 Mexico. The Marine Mammal Protection
                                                  northeastern Gulf of Mexico. When                       Mexico were difficult to interpret (Rosel             Act abundance estimate used for
                                                  observers were able to clearly see the                  et al., 2016).                                        management of the ‘‘Northern Gulf of
                                                  dorsal surface of the rostrum of at least                  Few systematic surveys have been                   Mexico Bryde’s Whale Stock’’ is 33
                                                  one whale, three ridges were present, a                 conducted in the southern Gulf of                     whales (coefficient of variation = 1.07;
                                                  diagnostic characteristic of Bryde’s                    Mexico (i.e., Mexico and Cuba). Six
                                                                                                                                                                Waring et al., 2013). Recently, Duke
                                                  whales (Maze-Foley & Mullin 2006). As                   marine mammal surveys were
                                                                                                                                                                University researchers estimated
                                                  a result, our Gulf of Mexico surveys                    conducted from 1997 to 1999 in the
                                                                                                                                                                abundance to be 44 individuals
                                                  from 1991–2015 use sightings of Bryde’s                 southern Gulf of Mexico and Yucatán
                                                  whale, Bryde’s/sei whale, and baleen                    Channel. These surveys focused                        (coefficient of variation = .27) based on
                                                  whale species collectively as the basis                 specifically in the extreme southern Bay              the averages of 23 years of survey data
                                                  for estimates of Bryde’s whales                         of Campeche, an area where Reeves et                  (Roberts et al., 2015a, Roberts et al.,
                                                  abundance and distribution. Sightings                   al. (2011) reported numerous sightings                2016). No analysis has been conducted
                                                  of Bryde’s whales in the Gulf of Mexico                 of baleen whales from the whaling                     to evaluate abundance trends for GOMx
                                                  have been consistently located in the De                logbooks. A more recent survey reported               Bryde’s whale. Given the paucity of data
                                                  Soto Canyon area, along the continental                 a single baleen whale in an area of                   that influences the range in the
                                                  shelf break between 100 m and 300 m                     nearly 4,000 square kilometers (km2)                  abundance estimates, the SRT agreed by
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                                                  depth. Bryde’s whales have been sighted                 (Ortega-Ortiz 2002, LaBrecque et al.                  consensus that, given the best available
                                                  in all seasons within the De Soto                       2015). This whale was identified as a fin             science and allowing for the uncertainty
                                                  Canyon area (Mullin and Hoggard 2000,                   whale; however, subsequent discussion                 of Bryde’s whale occurrence in non-U.S.
                                                  Maze-Foley and Mullin 2006, Mullin                      between the author and the SRT                        waters of the Gulf of Mexico, most likely
                                                  2007, DWH MMIQT 2015).                                  suggested it should have been recorded                less than 100 individuals exist. For the
                                                  Consequently, LaBrecque et al. (2015)                   as an unidentified baleen whale (Rosel                reasons stated above, we concur that
                                                  designated this area, home to the small                 et al., 2016). A compilation of all                   likely less than 100 GOMx Bryde’s
                                                  resident population of Bryde’s whale in                 available records of marine mammal                    whales exist.


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                            88643

                                                  Behavior                                                known GOMx Bryde’s whale was a                        the severity of each threat with a level
                                                     Little information exists on the                     lactating female 12.6 m in length (Rosel              of certainty (see Appendix 3 in Rosel et
                                                  behavior of GOMx Bryde’s whale. Maze-                   and Wilcox 2014). Currently, skewed                   al., 2016). Because direct evidence from
                                                  Foley and Mullin (2006) found GOMx                      sex ratio does not appear to be an issue              studies on GOMx Bryde’s whales was
                                                  Bryde’s whales to have a mean group                     for this population, as recent biopsies               lacking, the SRT agreed that published
                                                                                                          have shown equal number of males and                  scientific evidence from other similar
                                                  size of 2 (range 1 ¥5, n = 14), similar
                                                                                                          females (Rosel and Wilcox, 2014; Rosel                marine mammals was relevant and
                                                  to group sizes of the Eden’s and Bryde’s
                                                                                                          et al., 2016). No GOMx Bryde’s whale                  necessary to estimate impacts to GOMx
                                                  whales (Wade and Gerrodette 1993).
                                                                                                          calves have been reported during                      Bryde’s whale and extinction risk.
                                                  The GOMx Bryde’s whale is known to
                                                                                                          surveys. However, two stranded calves                    To promote consistency when ranking
                                                  be periodically ‘‘curious’’ around ships
                                                                                                          have been recorded in the Gulf of                     each threat, the SRT used definitions for
                                                  and has been documented approaching
                                                                                                          Mexico: A 4.7 m calf stranded in the                  ‘severity of threat’ and ‘level of
                                                  them in the Gulf of Mexico (Rosel et al.,
                                                                                                          Florida Panhandle in 2006 (SEUS                       certainty’ similar to other status
                                                  2016), as observed in Bryde’s whales
                                                                                                          Historical Stranding Database) and a 6.9              reviews, including the Hawaiian insular
                                                  worldwide (Leatherwood et al. 1976,
                                                                                                          m juvenile stranded north of Tampa,                   false killer whales (Oleson et al. 2010)
                                                  Cummings 1985). In September 2015, a                    Florida, in 1988 (Edds et al. 1993).
                                                  female GOMx Bryde’s whale was tagged                                                                          and the northeastern Pacific population
                                                  with an acoustic and kinematic data-                    Acoustics                                             of white shark (Dewar et al. 2013). The
                                                  logging tag in the De Soto Canyon (Rosel                                                                      SRT categorically defined specific
                                                                                                             Baleen whale species produce a
                                                  et al., 2016). Over the nearly 3-day                    variety of highly stereotyped, low-                   rankings for both severity and certainty
                                                  tagging period, the whale spent 47                      frequency tonal and broadband calls for               for each specific threat (identified
                                                  percent of its time within 15 m of the                  communication purposes (Richardson et                 below) as ‘‘low,’’ ‘‘moderate,’’ or ‘‘high.’’
                                                  surface during the day and 88 percent                   al. 1995). These calls are thought to                 The categorical definitions for the
                                                  of its time within 15 m of the surface                  function in a reproductive or territorial             severity of each threat were identified
                                                  during the night (NMFS, unpublished                     context, provide individual                           by the SRT as 1 = ‘‘low,’’ meaning that
                                                  data).                                                  identification, and communicate the                   the threat is likely to only slightly
                                                                                                          presence of danger or food (Richardson                impair the population; 2 = ‘‘moderate,’’
                                                  Foraging Ecology                                                                                              meaning that the threat is likely to
                                                                                                          et al., 1995). Bryde’s whales worldwide
                                                    Little information is available on                    produce a variety of calls that are                   moderately degrade the population; or 3
                                                  foraging ecology available for GOMx                     distinctive among geographic regions                  = ‘‘high,’’ meaning that the threat is
                                                  Bryde’s whales. Based on behavior                       that may be useful for delineating                    likely to eliminate or seriously degrade
                                                  observed during assessment surveys,                     subspecies or populations (Oleson et al.              the population. The SRT also scored the
                                                  these whales do not appear to forage at                 2003, Širović et al. 2014). In the Gulf of          certainty of the threat severity based on
                                                  or near the surface (NMFS,                              Mexico, Širović et al. (2014) reported              the following categorical definitions: 1 =
                                                  unpublished). In general, Bryde’s                       Bryde’s whale call types composed of                  ‘‘low,’’ meaning little published and/or
                                                  whales are thought to feed primarily in                 downsweeps and downsweep sequences                    unpublished data exist to support the
                                                  the water column on schooling fish such                 and localized these calls. Rice et al.                conclusion that the threat did affect, is
                                                  as anchovy, sardine, mackerel and                       (2014) detected these sequences, as well              affecting, or is likely to affect the GOMx
                                                  herring, and small crustaceans (Kato                    as two stereotyped tonal call types that              Bryde’s whale with the severity
                                                  2002). These prey occur throughout the                  originated from Bryde’s whales in the                 ascribed; 2 = ‘‘moderate,’’ meaning some
                                                  Gulf of Mexico and the BIA (Grace et al.                Gulf of Mexico. One call type has been                published and/or unpublished data
                                                  2010). Tracking data from the single                    definitively identified to free-ranging               exist to support the conclusion that the
                                                  whale with an acoustic tag (described                   GOMx Bryde’s whales (Širović et al.,                threat did affect, is affecting, or is likely
                                                  above) indicated diurnal diving to                      2014), four additional call types have                to affect the population with the
                                                  depths of up to 271 m, with foraging                    been proposed as likely candidates (Rice              severity ascribed; and 3 = ‘‘high,’’
                                                  lunges apparent at the deepest depths.                  et al., 2014a, Širović et al., 2014), and           meaning there are definitive published
                                                  That whale was likely foraging at or just               two call types have been described from               and/or unpublished data to support the
                                                  above the sea floor (NMFS, unpublished                  a captive juvenile during rehabilitation              conclusion that this threat did affect, is
                                                  data) where diel-vertical-migrating                     (Edds et al., 1993). Based on these data,             affecting, or is likely to affect the GOMx
                                                  schooling fish form tight aggregations.                 the calls by the Gulf of Mexico Bryde’s               Bryde’s whale with the severity
                                                                                                          whale are consistent with, but different              ascribed. Then, to determine the overall
                                                  Reproduction and Growth                                                                                       impact of an ESA factor, the SRT looked
                                                                                                          from those previously reported for
                                                     Little information exists on                         Bryde’s whales worldwide (Rice et al.,                at the collective impact of threats
                                                  reproduction and growth of GOMx                         2014). These unique acoustic signatures               considered for each ESA factor to
                                                  Bryde’s whale; however, similar to                      support the genetic analyses identifying              provide an ‘‘overall threat ranking’’ for
                                                  Eden’s whales and Bryde’s whales                        the GOMx Bryde’s whale as an                          each ESA factor, defined as follows: 1=
                                                  elsewhere in the world, the GOMx                        evolutionary distinct unit (Rosel and                 ‘‘low,’’ meaning the ESA factor included
                                                  Bryde’s whale is considered to have k-                  Wilcox 2014).                                         ‘‘a low number’’ of threats likely to
                                                  selected life history parameters (large                                                                       contribute to the decline of the GOMx
                                                  body size, long life expectancy, slow                   Threats Evaluation                                    Bryde’s whale; 2 = ‘‘moderate,’’ meaning
                                                  growth rate, late maturity, with few                      The threats evaluation is the second                the ESA Factor included an
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  offspring). Taylor et al. (2007) estimated              step in making an ESA listing                         intermediate number of threats likely to
                                                  that Bryde’s whales worldwide may                       determination for the GOMx Bryde’s                    contribute to the decline of the GOMx
                                                  reproduce every two to three years and                  whale, as described above in ‘‘Listing                Bryde’s whale, or contained some
                                                  reach sexual maturity at age nine. Given                Determinations Under the ESA.’’ The                   individual threats identified as
                                                  the basic biology of baleen whales, it is               SRT identified a total of 27 specific                 moderately likely to contribute to the
                                                  likely that under normal conditions, the                threats, organized and described them                 decline; and 3 = ‘‘high,’’ meaning the
                                                  female GOMx Bryde’s whales produce a                    according to the five ESA factors listed              ESA factor included a high number of
                                                  calf every 2 to 3 years. The largest                    in section 4(a)(1), and then evaluated                threats that are moderately or very likely


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                                                  88644                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  to contribute to the decline of the GOMx                marine debris). The SRT evaluated those               of Mexico between 2011 and 2013 (OCS
                                                  Bryde’s whale, or contains some                         threats under Factor E, other natural or              EIS EA BOEM 2015–001).
                                                  individual threats identified as very                   human factors affecting a species                        Exposure to oil spills may cause
                                                  likely to contribute to the decline of the              continued existence. Accordingly, we                  marine mammals acute or chronic
                                                  GOMx Bryde’s whale.                                     discuss and evaluate those threats under              impacts with lethal or sub-lethal effects
                                                     The SRT then calculated the                          Factor E below.)                                      depending on the size and duration of
                                                  numerical mean of the team members’                        The Gulf of Mexico is a major oil and              the spill. For large baleen whales, like
                                                  scores for each threat or category of                   gas producing area and has proven a                   the GOMx Bryde’s whale, oil can foul
                                                  threats. However, we do not believe that                steady and reliable source of crude oil               the baleen they use to filter-feed,
                                                  relying on the numerical mean of the                    and natural gas for more than 50 years.               decreasing their ability to eat, and
                                                  SRT’s scores is appropriate, because the                Approximately 2,300 platforms operate                 resulting in the ingestion of oil (Geraci
                                                  specific rankings for the severity,                     in Federal outer continental shelf (OCS)              et al., 1989). Impacts from exposure may
                                                  certainty, and overall threat were                      waters (Rosel et al., 2016) and in 2001               also include: Reproductive failure, lung
                                                  categorically defined by the SRT and                    approximately 27,569 miles (44,368 km)                and respiratory impairments, decreased
                                                  not numerically defined. Therefore, we                  of pipeline lay on the Gulf of Mexico                 body condition and overall health, and
                                                  assessed the majority vote of the team                  seafloor (Cranswick 2001). For planning               increased susceptibility to other
                                                  members’ scores (i.e., 1, 2, or 3, as                   and administrative purposes, the Bureau               diseases (Harvey and Dahlheim 1994).
                                                  described above) and assigned each                      of Ocean Energy Management (BOEM)                     Oil and other chemicals on the body of
                                                  threat a specific ranking defined by the                has divided the Gulf of Mexico into                   marine mammals may result in
                                                  SRT’s categorical definitions (i.e., low,               three planning areas: Western, Central,               irritation, burns to mucous membranes
                                                  moderate or high) based on the majority                 and Eastern. The majority of active lease             of eyes and mouth, and increased
                                                  vote of the SRT. When there was no                      sales are located in the Western and                  susceptibility to infection (DWH
                                                  clear majority (i.e., no rank received                  Central Planning Areas. Habitat in the                Trustees 2016). Dispersants used during
                                                  four votes), the categorical ranking we                 north-central and western Gulf of                     oil spill response activities may also be
                                                  assigned was a combination of the two                   Mexico, which includes the GOMx                       toxic to marine mammals (Wise et al.,
                                                  ranks receiving three votes each (e.g.,                 Bryde’s whale’s historical range, has                 2014a). After oil spills cease, marine
                                                  three votes for high and three votes for                been significantly modified with the                  mammals may experience continued
                                                  moderate we characterized as                            presence of thousands of oil and gas                  effects through persistent exposure to
                                                  ‘‘moderate-high’’).                                     platforms. The Eastern Planning Area                  oil and dispersants in the environment,
                                                     Each of the 27 threats identified by                 (EPA), which overlaps with the GOMx                   reduction or contamination of prey,
                                                  the SRT is summarized below, by ESA                     Bryde’s whale BIA, currently has no                   direct ingestion of contaminated prey,
                                                  factor, with severity and certainty                     production activity, with most of the                 or displacement from preferred habitat
                                                  rankings based on the SRT’s categorical                 area falling under a moratorium of lease              (Schwacke et al., 2014, BOEM and Gulf
                                                  scoring, as described above. We also                    sales until 2022. However, this                       of Mexico OCS Region 2015, DWH
                                                  summarize the overall threat ranking for                moratorium expires in 2022, and GOMx                  Trustees 2016). The DWH oil spill is an
                                                  each ESA factor, based on the SRT’s                     Bryde’s whale could then be exposed to                example of the significant impacts a
                                                  scores, and provide NMFS’                               increased threats associated with energy              spill can have on the status of the GOMx
                                                  determination with regard to each                       exploration and development activities                Bryde’s whale. Although the DWH
                                                  factor. A detailed table of the SRT’s                   (e.g., marine debris, operational                     platform was not located within the
                                                  threats and rankings can be found in                    discharge, vessel collision, noise,                   BIA, the oil footprint included 48
                                                  Appendix 3 of the Status Review report                  seismic surveys, oil spills, etc.) as they            percent of GOMx Bryde’s whale habitat
                                                  (Rosel et al., 2016).                                   are almost exclusively located within                 and an estimated 17 percent of the
                                                                                                          this geographic region. In addition to                species was killed, 22 percent of
                                                  Factor A. The Present or Threatened                     expressing concern regarding the                      reproductive females experienced
                                                  Destruction, Modification, or                           current curtailment of the GOMx                       reproductive failure, and 18 percent of
                                                  Curtailment of Habitat or Range                         Bryde’s whale range due to energy                     the population likely suffered adverse
                                                     The SRT considered the following                     exploration and development in the                    health effects due to the spill (DWH
                                                  threats to the GOMx Bryde’s whale                       north-central and western Gulf of                     Trustees 2016). Based on the SRT’s
                                                  under ESA Factor A: Energy exploration                  Mexico, the SRT raised significant                    scoring, the threat of exposure to oil
                                                  and development, oil spills and spill                   concern about the moratorium expiring                 spills and spill response is a ‘‘high’’
                                                  response, harmful algal blooms,                         and the potential expansion of impacts                severity threat with a ‘‘high’’ level of
                                                  persistent organic pollutants, and heavy                that opening these waters to                          certainty to the GOMx Bryde’s whale.
                                                  metals. Based on the SRT’s numerical                    development would have on the Bryde’s
                                                                                                                                                                Harmful Algal Blooms
                                                  threat rankings, the overall threat                     whale BIA in the future, especially in
                                                  ranking assigned to Factor A was                        light of the apparent limited use by                     Harmful Algal Blooms (HAB) occur
                                                  ‘‘high.’’                                               Bryde’s whales of the north-central and               throughout the Gulf of Mexico, with
                                                                                                          western Gulf of Mexico.                               most blooms occurring off the coast of
                                                  Energy Exploration and Development                                                                            Florida. One of the most common HAB
                                                     The SRT assigned the threat of energy                Oil Spills and Spill Response                         species, Karenia brevis (also known as
                                                  exploration and development (drilling                     Oil spills are a common occurrence in               the red tide organism), is common along
                                                  rigs, platforms, cables, pipelines) a score             the Gulf of Mexico. In 2010, the                      coastal zones, but can also develop
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  of ‘‘high’’ severity threat with                        Deepwater Horizon (DWH) oil spill was                 offshore. Karenia brevis produces
                                                  ‘‘moderate’’ certainty, as it relates to                the largest spill affecting U.S. waters in            neurotoxins that affect the nervous
                                                  destruction, modification, or                           U.S. history, spilling nearly 134 million             system by blocking the entry of sodium
                                                  curtailments of the range of the GOMx                   gallons (507 million liters) of oil into the          ions to nerve and muscle cells (Geraci
                                                  Bryde’s whale. (Note: Other aspects or                  Gulf of Mexico. In addition, 46 smaller-              et al., 1989). The neurotoxins can
                                                  elements of energy exploration and                      scale spills associated with oil and gas              accumulate in primary consumers
                                                  development can act directly on the                     related activities (e.g., platforms, rigs,            through direct exposure to toxins in the
                                                  whales (e.g., noise, vessel collision,                  vessels, pipelines) occurred in the Gulf              water, ingestion, or inhalation. Once


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88645

                                                  neurotoxins have entered the food web,                  of certainty for POPs and a ‘‘low’’ level             Whaling Commission (see Factor D).
                                                  bioaccumulation can occur in predators                  of certainty for heavy metals.                        The SRT ranked the impacts from
                                                  higher up on the food web, like GOMx                                                                          historical whaling as ‘‘low’’ severity
                                                                                                          Summary of Factor A
                                                  Bryde’s whales.                                                                                               threat with a ‘‘moderate-high’’ degree of
                                                     HABs are also known to negatively                       We interpret the overall risk assigned             certainty.
                                                  affect marine mammal populations                        by the SRT for ESA Factor A as ‘‘high,’’
                                                  through acute and chronic detrimental                   indicating that there are a high number               Scientific Biopsy Sampling
                                                  health effects, including reproductive                  of threats that are moderately or very                   Scientific research that may have the
                                                  failure (reviewed in Fire et al., 2009).                likely to contribute to the decline of the            potential to disturb and/or injure marine
                                                  Although no documented cases of                         GOMx Bryde’s whale, or some                           mammals such as the Bryde’s whale
                                                  GOMx Bryde’s whale deaths resulting                     individual threats identified as very                 requires a letter of authorization under
                                                  from HABs exist, cases involving                        likely to contribute to the decline of the            the Marine Mammal Protection Act
                                                  humpback whales (Megaptera                              population. Specifically, the SRT found               (MMPA). As of March 7, 2016 (the
                                                  novaeangliae; Geraci et al., 1989) and                  that energy exploration and                           reference date used by the SRT), there
                                                  potentially fin (B. physalus) and minke                 development, and oil spills and spill                 was one active scientific permit
                                                  whales (Gulland and Hall 2007) have                     response, were significant threats                    authorizing non-lethal take of GOMx
                                                  been reported. Impacts from HABs have                   currently seriously degrading the GOMx                Bryde’s whale and four scientific
                                                  also been associated with large-scale                   Bryde’s whale population. In addition,                research permits authorizing non-lethal
                                                  mortality events for common bottlenose                  the SRT found that HABs, POPs, and                    take of Bryde’s whales worldwide,
                                                  dolphins and manatees in the offshore                   heavy metals are not currently                        including the Gulf of Mexico. The
                                                  and coastal waters of the northeastern                  significantly contributing to the risk of             permits authorize activities such as
                                                  Gulf of Mexico. Given the small                         extinction for the Gulf of Mexico                     vessel or aerial surveys, photo-
                                                  population size of the GOMx Bryde’s                     Bryde’s whale.                                        identification, behavioral observation,
                                                  whale, the SRT noted that a HAB-                           Based on the comprehensive status                  collection of sloughed skin, and passive
                                                  induced mortality of a single breeding                  review and after considering the SRT’s                acoustics. Four of the permits also
                                                  female would significantly degrade the                  threats assessment, we conclude that                  authorize activities such as dart biopsies
                                                  status of the population. Largely due to                energy exploration and development,                   and/or tagging. Biopsy sampling, where
                                                  human activities, HABs are increasing                   and oil spills and spill response, are                a small piece of tissue is removed for
                                                  in frequency, duration, and intensity                   currently increasing the GOMx Bryde’s                 analysis, is a common research activity
                                                  throughout the world (Van Dolah 2000).                  whales risk of extinction.                            used to support stock differentiation,
                                                  Based on the SRT’s scoring, the threat                                                                        evaluate genetic variation, and
                                                                                                          Factor B. Overutilization for
                                                  of harmful algal blooms (HABs) is a                                                                           investigate health, reproduction and
                                                                                                          Commercial, Recreational, Scientific, or
                                                  ‘‘moderate’’ severity threat with a ‘‘low’’                                                                   pollutant loads (Brown et al., 1994).
                                                                                                          Educational Purposes
                                                  level certainty.                                                                                              Research on wound healing from
                                                                                                            The SRT considered two threats                      biopsies has indicated little long-term
                                                  Persistent Organic Pollutants and Heavy                 under ESA Factor B; historical whaling                impact (Brown et al., 1994, Best et al.,
                                                  Metals                                                  and scientific biopsy sampling. The                   2005). In addition, research activities
                                                    Concentrations of persistent organic                  overall rank assigned for Factor B, based             are closely monitored and evaluated in
                                                  pollutants (POP) are typically lower in                 on the SRT’s scoring, is ‘‘low.’’                     the United States in an attempt to
                                                  baleen whales compared to toothed                                                                             minimize impacts (see Factor D). The
                                                                                                          Historical Whaling
                                                  whales due to differences in feeding                                                                          SRT scored the threat of scientific
                                                  levels in the trophic system (Waugh et                     The SRT scored the impacts from                    biopsy sampling as a ‘‘low’’ severity
                                                  al., 2014, Wise et al., 2014b). In general,             historical whaling as a ‘‘low’’ severity              threat with a ‘‘high’’ level of certainty.
                                                  thresholds for adverse impacts to baleen                threat with a ‘‘moderate-high’’ degree of
                                                  whales resulting from POPs are                          certainty. Whaling that occurred in the               Summary of Factor B
                                                  unknown (Steiger and Calambokidis                       18th and 19th centuries in the Gulf of                  The overall threat rank assigned for
                                                  2000).                                                  Mexico may have removed Bryde’s                       Factor B by the SRT was ‘‘low,’’
                                                    Little is known about the effects of                  whales. The primary target species were               indicating there are a low number of
                                                  heavy metals on offshore marine                         sperm whales, but other species were                  threats that are likely to contribute to
                                                  mammal populations. Heavy metals can                    taken. Reeves et al., (2011) indicated                the decline of the GOMx Bryde’s whale.
                                                  accumulate in whale tissue and cause                    that, during the 18th and 19th centuries,             We conclude, based on our review of
                                                  toxicity (Sanpera et al., 1996,                         whalers hunting ‘‘finback whales’’ in                 the information presented in the Status
                                                  Hernández et al., 2000, Wise et al.,                   the Gulf of Mexico were most likely                   Review report and SRTs threats
                                                  2009). Similarly heavy metals                           taking Bryde’s whales, based on the                   assessment, that the threats posed by
                                                  accumulate in prey at the trophic levels                known distribution and recent records                 whaling and scientific biopsy sampling
                                                  where marine mammals feed. However,                     of baleen whale species in the Gulf of                are not increasing the risk of extinction
                                                  concentrations of heavy metals in tissue                Mexico. However, the total number of                  for the Gulf of Mexico Bryde’s whale.
                                                  vary based on physiological and                         whales killed during that time cannot be              Upon reviewing the information in the
                                                  ecological factors such as geographic                   quantified. The SRT determined that it                Status Review report and the SRT’s
                                                  location, diet, age, sex, tissue, and                   is unlikely the current low abundance of              threats assessment, we concluded that
                                                  metabolic rate (Das et al., 2003).                      GOMx Bryde’s whales is related to
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                                                                                                                                                                whaling and scientific biopsy sampling
                                                  Although heavy metals are pervasive in                  historical whaling, as the population                 are low potential threats to the GOMx
                                                  the marine environment and                              would have recovered to some extent,                  Bryde’s whale and are not currently
                                                  documented in various marine mammal                     given the estimated population recovery               contributing to the risk of extinction.
                                                  species, their impact on Bryde’s whale                  rate (Wade 1998) and considering that
                                                  health and survivorship is unknown.                     whaling stopped over a century ago                    Factor C. Disease, Parasites, and
                                                  Based on the SRT’s scoring, the threat                  (Rosel et al., 2016). Whaling is not a                Predation
                                                  of POPs and heavy metals are ‘‘low’’                    current threat in the Gulf of Mexico and                The SRT considered the following
                                                  severity threat, with a ‘‘moderate’’ level              is regulated by the International                     threats under ESA Factor C: Disease and


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                                                  88646                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  parasites, and predation. The overall                   known to scavenge on carcasses of                     and enforcing regulations, as necessary,
                                                  rank assigned for Factor C based on the                 Bryde’s whales elsewhere in the world                 to carry out the purposes of the MMPA.
                                                  SRT’s scoring was ‘‘low.’’                              (Dudley et al. 2000), the SRT found no                The MMPA includes a general
                                                                                                          published reports of large shark                      moratorium on the ‘taking’ and
                                                  Disease and Parasites
                                                                                                          predation on healthy, living individuals              importing of marine mammals, which is
                                                     There is little information on disease               (Rosel et al., 2016). Based on this                   subject to a number of exceptions. Some
                                                  or parasitism of any Bryde’s whale in                   information, the SRT’s scoring of this                of these exceptions include ‘take’ for
                                                  the literature. Reviews of conservation                 threat was ‘‘low’’ severity with ‘‘low’’              scientific purposes, public display, and
                                                  issues for baleen whales have tended to                 certainty.                                            unintentional incidental take coincident
                                                  see disease as a relatively                                                                                   with conducting lawful activities. Any
                                                  inconsequential threat (Claphan et al.,                 Summary of Factor C
                                                                                                                                                                U.S. citizen, agency, or company who
                                                  1999). The SRT noted that cetacean                        The overall threat rank assigned for                engages in a specified activity other
                                                  morbillivirus, which causes epizootics                  Factor C, based on the SRT’s scoring                  than commercial fishing (which is
                                                  resulting in serious population declines                was ‘‘low,’’ indicating that this category            specifically and separately addressed
                                                  in dolphin species (Van Bressem et al.,                 includes a low number of threats that                 under the MMPA) within a specified
                                                  2014), has also been detected in fin                    are likely to contribute to the decline of            geographic region may submit an
                                                  whales in the eastern Atlantic Ocean                    the GOMx Bryde’s whale. Based on the                  application to the Secretary to authorize
                                                  (Jauniaux et al., 2000) and in fin whales               limited observance of disease, parasites,             the incidental, but not intentional,
                                                  and minke whales in the Mediterranean                   or predation, we concur that these are                taking of small numbers of marine
                                                  Sea (Mazzariol et al., 2012; Di Guardo et               low potential threats to the GOMx                     mammals within that region for a period
                                                  al., 1995). In the Gulf of Mexico the                   Bryde’s whale and are not currently                   of not more than five consecutive years
                                                  morbillivirus outbreaks that occurred in                contributing to their extinction risk.                (16 U.S.C. 1371(a)(5)(A)). U.S. citizens
                                                  1990, 1992, and 1994, caused marine                                                                           can also apply under the MMPA for
                                                                                                          Factor D. Inadequacy of Existing
                                                  mammal mortalities, with most the                                                                             authorization to incidentally take
                                                                                                          Regulatory Mechanisms
                                                  mortalities being common bottlenose                                                                           marine mammals by harassment for up
                                                  dolphins (Rosel et al., 2016). These                       The relevance of existing regulatory
                                                                                                          mechanisms to extinction risk for an                  to 1 year (16 U.S.C. 1371(a)(5)(D)). For
                                                  outbreaks were thought to have                                                                                both types of authorizations, it must be
                                                  originated in the Atlantic Ocean (Litz et               individual species depends on the
                                                                                                          vulnerability of that species to each of              determined that the take is of small
                                                  al. 2014). An unusual mortality event                                                                         numbers, has no more than a negligible
                                                  involving hundreds of common                            the threats identified under the other
                                                                                                          factors of ESA section 4, and the extent              impact on those marine mammal
                                                  bottlenose dolphins in the Atlantic
                                                                                                          to which regulatory mechanisms could                  species or stocks, and does not have an
                                                  Ocean from 2013–2015 was caused by
                                                                                                          or do control the threats that are                    unmitigable adverse impact on the
                                                  morbillivirus (Rosel et al., 2016). During
                                                                                                          contributing to the species’ extinction               availability of the species or stock for
                                                  this outbreak, a few individuals of
                                                                                                          risk. If a species is not vulnerable to a             subsistence use. The MMPA also
                                                  multiple species of baleen whales in the
                                                                                                          particular threat, it is not necessary to             provides mechanisms for directed
                                                  Atlantic tested positive for the disease,
                                                                                                          evaluate the adequacy of existing                     ‘‘take’’ of marine mammals for the
                                                  indicating that it could potentially
                                                                                                          regulatory mechanisms for addressing                  purposes of scientific research. Non-
                                                  spread to Bryde’s whales (Rosel et al.,
                                                                                                          that threat. Conversely, if a species is              lethal research takes of Bryde’s whale
                                                  2016). However, there have been no
                                                                                                          vulnerable to a particular threat, we do              for scientific research (e.g., biopsy
                                                  confirmed morbillivirus-related deaths
                                                                                                          evaluate the adequacy of existing                     sampling) are currently authorized on a
                                                  of Bryde’s whales in the Gulf of Mexico
                                                                                                          measures, if any, in controlling or                   global scale and typically do not specify
                                                  (Rosel et al., 2016).
                                                     The SRT identified only two cases of                 mitigating that threat. In the following              a geographic area. Hence the potential
                                                  other diseases and parasites known to                   paragraphs, we summarize existing                     for multiple biopsies of an individual
                                                  occur in Bryde’s whale detected in                      regulatory mechanisms relevant to                     Bryde’s whale does exist. However, any
                                                  Australia (Patterson 1984) and Brazil                   threats to GOMx Bryde’s whale                         risk to GOMx Bryde’s whale from
                                                  (Pinto et al., 2004). Based on the SRT’s                generally, and assess their adequacy for              multiple sampling is low, and we do not
                                                  scoring, the threat of disease and                      controlling those threats.                            expect any mortalities to result. In these
                                                  parasites is a ‘‘low’’ severity threat with                                                                   situations, we take a proactive role and
                                                                                                          Marine Mammal Protection Act                          coordinate with researchers to minimize
                                                  ‘‘low’’ certainty.
                                                                                                             In U.S. waters, Bryde’s whales are                 any potential negative effects to a small
                                                  Predation                                               protected by the MMPA (16 U.S.C. 1361                 population.
                                                     Killer whales (Orcinus orca) are the                 et seq.). The MMPA sets forth a national                 The MMPA currently identifies the
                                                  only known predator to Bryde’s whales                   policy to prevent marine mammal                       Northern Gulf of Mexico stock of
                                                  and they occur in areas further offshore                species or population stocks from                     Bryde’s whales as a ‘‘strategic’’ stock,
                                                  from the BIA (Silber & Newcomer 1990,                   diminishing to the point where they are               because the level of direct human-
                                                  Alava et al. 2013). There are no                        no longer a significant functioning                   caused mortality and serious injury
                                                  published records of killer whale                       element of their ecosystem. The                       exceeds the potential biological removal
                                                  predation of GOMx Bryde’s whale                         Secretaries of Commerce and the                       (PBR) level determined for the species,
                                                  (Rosel et al., 2016). Killer whales have                Interior have primary responsibility for              which could have management
                                                  been observed harassing sperm whales                    implementing the MMPA. The Secretary                  implications. The MMPA also provides
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                                                  and attacking pantropical spotted                       of Commerce has jurisdiction over the                 additional protections to stocks
                                                  dolphins (Stenella attenuate) and a                     orders Cetacean and Pinnipedia with                   designated as ‘‘depleted’’ and requires
                                                  dwarf/pygmy sperm whale (Kogia sp.)                     the exception of walruses, and the                    that conservation plans be developed to
                                                  (Pitman et al. 2001, Whitt et al. 2015,                 Secretary of Interior has jurisdiction                conserve and restore the stock to its
                                                  NMFS SEFSC, unpublished) in the Gulf                    over all other marine mammals. Both                   optimum sustainable population (OSP).
                                                  of Mexico. While large sharks (e.g.,                    agencies are responsible for                          In order for a stock to be considered
                                                  white sharks Carcharodon carcharias,                    promulgating regulations, issuing                     ‘‘depleted’’ the Secretary, after
                                                  and tiger sharks Galaecerdo cuvier) are                 permits, conducting scientific research,              consultation with the Marine Mammal


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88647

                                                  Commission and the Committee of                         and the siting of renewable energy                    not adequate to control these threats.
                                                  Scientific Advisors on Marine                           facilities. The Energy Policy Act of                  While the current moratorium on
                                                  Mammals, must determine it is below                     2005, Public Law (Pub. L.) 109–58,                    leasing for new oil and gas development
                                                  its OSP or if the species or stock is listed            added Section 8(p)(1)(C) to the OCSLA,                in the EPA appears to provide some
                                                  under the ESA. In 2015, the Marine                      which grants the Secretary of Interior                protection to the GOMx Bryde’s whale,
                                                  Mammal Stock Assessment Report                          the authority to issue leases, easements,             the SRT found that development in the
                                                  determined that the status of the                       or rights-of-way on the OCS for the                   Gulf of Mexico continues to have broad
                                                  Northern Gulf of Mexico Population of                   purpose of renewable energy                           impacts, through curtailment of range
                                                  Bryde’s whales, relative to OSP was                     development (43 U.S.C. 1337(p)(1)(C)).                and anthropogenic noise from seismic
                                                  unknown, as there was insufficient                      This authority has been delegated to                  surveys and vessels associated with oil
                                                  information to determine population                     BOEM (30 CFR 585), who now regulates                  and gas development. Additionally, the
                                                  trends (SARS 2015). Due to this lack of                 activities within Federal waters. Since               existing moratorium on new leases in
                                                  information on OSP, the GOMx Bryde’s                    2006, there has been a moratorium on                  the EPA expires in 2022 and, if not
                                                  whale is not designated as a ‘‘depleted’’               leasing new areas for oil and gas                     renewed, energy exploration would be
                                                  stock and there is no conservation plan.                development and production in the Gulf                allowed in the GOMx Bryde’s whale
                                                  Based on the above, we conclude that,                   of Mexico EPA that includes the waters                BIA, resulting in potentially severe
                                                  outside of the general protections                      offshore of Florida, including the BIA.               impacts to this small population. We
                                                  provided to marine mammals by the                       The moratorium is set to expire in 2022               acknowledge that activities under the
                                                  MMPA, there are no specific regulatory                  and, if it is not renewed, the GOMx                   DWH PDARP may be beneficial to
                                                  mechanisms specific to the GOMx                         Bryde’s whale within the BIA could be                 GOMx Bryde’s whales, but we also
                                                  Bryde’s whale under the MMPA.                           exposed to increased energy                           conclude that oil spills and spill
                                                                                                          exploration.                                          response remain a serious current threat
                                                  Outer Continental Shelf Lands Act and                      The Oil Pollution Act (OPA) of 1990                to the GOMx Bryde’s whale population,
                                                  the Oil Pollution Act                                   (33 U.S.C. 2701–2761) is the principal                as discussed above in Factor A.
                                                    The SRT also identified existing                      statute governing oil spills in the
                                                  regulatory mechanisms relating to oil                   nation’s waterways. OPA was passed                    International Convention for the
                                                  and gas development and oil spills and                  following the March 1989 Exxon Valdez                 Regulation of Whaling
                                                  spill response (see Factors A and E for                 oil spill to address a lack of adequate                  The International Whaling
                                                  a discussion of those threats). The Outer               resources, particularly Federal funds, to             Commission (IWC) was set up under the
                                                  Continental Shelf Lands Act (OCSLA)                     respond to oil spills (National Pollution             International Convention for the
                                                  establishes Federal jurisdiction over                   Funds Center 2016). The OPA created                   Regulation of Whaling (ICRW), signed in
                                                  submerged lands on the OCS seaward of                   requirements for preventing, responding               1946. The IWC established an
                                                  coastal state boundaries in order to                    to, and funding restoration for oil                   international moratorium on
                                                  explore and develop oil and gas                         pollution incidents in navigable waters,              commercial whaling for all large whale
                                                  resources. Implementation, regulation,                  adjoining shorelines, and Federal                     species in 1982, effective in 1986; this
                                                  and granting of leases for exploration                  waters. The OPA authorizes Trustees                   affected all member (signatory) nations
                                                  and development on the OCS are                          (representatives of Federal, state, and               (paragraph 10e, IWC 2009a). Since 1985,
                                                  delegated to the BOEM, and BOEM is                      local government entities, and Tribes                 IWC catch limits for commercial
                                                  responsible for managing development                    with jurisdiction over the natural                    whaling have been set at zero. However,
                                                  of the nation’s offshore resources. The                 resources in question) to determine the               under the IWC’s regulations,
                                                  functions of BOEM include leasing,                      type and amount of restoration needed                 commercial whaling has been permitted
                                                  exploration and development, plan                       to compensate the public for the                      in both Norway and Iceland based on
                                                  administration, environmental studies,                  environmental impacts of the spill.                   their objection to specific provisions. In
                                                  National Environmental Policy Act                       These assessments are typically                       addition, harvest of whales by Japan for
                                                  (NEPA) analysis, resource evaluation,                   described in damage assessment and                    scientific purposes has been permitted
                                                  economic analysis, and the renewable                    restoration plans. The Final                          by the ICRW, including the Bryde’s
                                                  energy program BSEE is responsible for                  Programmatic Damage Assessment and                    whale in the North Pacific. However,
                                                  enforcing safety and environmental                      Restoration Plan (PDARP) developed for                distribution of the GOMx Bryde’s whale
                                                  regulations. OCSLA mandates that                        the 2010 DWH oil spill found the GOMx                 does not overlap with any permitted
                                                  orderly development of OCS energy                       Bryde’s whale to be the most impacted                 commercial whaling. The SRT
                                                  resources be balanced with protection of                oceanic and shelf marine mammal; 48                   concluded the current commercial
                                                  human, marine and coastal                               percent of the population was affected,               whaling moratorium provides
                                                  environments. It is the stated objective                resulting in an estimated 22 percent                  significant protection for the GOMx
                                                  of the OCSLA ‘‘to prevent or minimize                   maximum decline in population size                    Bryde’s whale, and we concur.
                                                  the likelihood of blowouts, loss of well                (DWH Trustees 2016). The DWH PDARP
                                                  control, fires, spillages . . . or other                                                                      The Convention on International Trade
                                                                                                          allocates fifty-five million dollars over
                                                  occurrences which may cause damage to                                                                         in Endangered Species of Wild Fauna
                                                                                                          the next 15 years for restoration of
                                                  the environment or to property, or                                                                            and Flora
                                                                                                          oceanic and shelf marine mammals,
                                                  endanger life or health’’ (43 U.S.C.                    including Bryde’s whales. The PDARP                      The Convention on International
                                                  1332(6)). OCSLA further requires the                    does not identify specific projects, but              Trade in Endangered Species of Wild
                                                  study of the environmental impacts of                   lays out a framework for planning future              Fauna and Flora (CITES) is aimed at
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                                                  oil and gas leases on the continental                   restoration projects, that may contribute             protecting species at risk from
                                                  shelf, including an assessment of effects               to the restoration of GOMx Bryde’s                    unregulated international trade and
                                                  on marine biota (43 U.S.C. 1346).                       whale.                                                regulates international trade in animals
                                                  OCSLA, as amended, requires the                            The ongoing impacts to the GOMx                    and plants by listing species in one of
                                                  Secretary of the Interior, through BOEM                 Bryde’s whale from oil and gas                        its three appendices. The level of
                                                  and BSEE, to manage the exploration                     development and oil spills in the Gulf                monitoring and control to which an
                                                  and development of OCS oil, gas, and                    of Mexico identified by the SRT indicate              animal or plant species is subject
                                                  marine minerals (e.g., sand and gravel)                 that existing regulatory mechanisms are               depends on the appendix in which the


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                                                  88648                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  species is listed. All Bryde’s whales (B.               waters. However, we believe that                      vessels and shipping traffic. Within the
                                                  edeni) are currently listed in Appendix                 anticipating any future threats to the                small population concerns sub-category
                                                  I under CITES. Appendix I includes                      GOMx Bryde’s whale at this point in                   of Factor E, the SRT included: Allee
                                                  species that are threatened with                        time is overly speculative, because the               effects; demographic stochasticity;
                                                  extinction and may be affected by trade;                best available science indicates that the             genetics; k-selected life-history
                                                  trade of Appendix I species is only                     GOMx Bryde’s whale distribution does                  parameters; and stochastic and
                                                  allowed in exceptional circumstances.                   not currently include the southern Gulf               catastrophic events. An explanation of
                                                  Due to the IWC commercial whaling                       of Mexico.                                            these threats and the SRT’s ranking for
                                                  moratorium in place since 1985,                                                                               each of these sub-categories follows.
                                                                                                          Summary of Factor D
                                                  commercial trade of Bryde’s whale in
                                                                                                             The SRT unanimously agreed that the                Other Natural or Human Factors
                                                  the Gulf of Mexico has not been
                                                  permitted. However, if the moratorium                   inadequacy of existing regulatory                        Vessel Collision—Vessel collisions are
                                                  should be lifted in the future, the                     mechanisms factor is a ‘‘high’’ threat to             a significant source of mortality for a
                                                  Bryde’s whale’s CITES Appendix I                        the GOMx Bryde’s whale (Rosel et al.,                 variety of coastal large whale species
                                                  listing would restrict trade, so that trade             2016). Specifically the SRT found that,               (Laist et al., 2001). The northern Gulf of
                                                  would not contribute to the extinction                  given the current status and limited                  Mexico is an area of considerably high
                                                  risk of the species.                                    distribution of the Bryde’s whale                     amount of ship traffic, which increases
                                                                                                          population in the Gulf of Mexico, it is               the risk of vessel-whale collisions (Rosel
                                                  International Maritime Organization                     clear that existing regulations have been             et al., 2016). Several important
                                                     The International Maritime                           inadequate to protect them. The SRT                   commercial shipping lanes travel
                                                  Organization (IMO), a branch of the                     expressed particular concern regarding                through the primary GOMx Bryde’s
                                                  United Nations, is the international                    current oil and gas development and                   whale habitat in the northeastern Gulf of
                                                  authority on shipping, pollution, and                   impacts from oil spills in the Gulf of                Mexico, particularly vessel traffic from
                                                  safety at sea and has adopted guidelines                Mexico, as well as vessel strikes due to              ports in Mobile, Pensacola, Panama
                                                  to reduce shipping noise and pollution                  shipping traffic. We agree that currently             City, and Tampa (see Figure 17; Rosel et
                                                  from maritime vessels. Additionally, the                there are no regulatory mechanisms in                 al., 2016). In 2009, a GOMx Bryde’s
                                                  IMO’s Marine Environment Protection                     the Gulf of Mexico to address ship                    whale was found floating dead in the
                                                  Committee occasionally identifies                       strikes on GOMx Bryde’s whales, which                 Port of Tampa, Tampa Bay, Florida. The
                                                  special areas and routing schemes for                   the SRT identified as one of the primary              documented cause of death was blunt
                                                  various ecological, economic, or                        threats faced by the species (see Factor              impact trauma due to ship strike
                                                  scientific reasons. Some of these actions               E below). Additionally, the Status                    (Waring et al., 2016). The necropsy
                                                  help benefit endangered right whales                    Review report suggests that oil and gas               report found that the whale was a
                                                  and humpback whales. However the                        development in the Gulf of Mexico have                lactating female indicating that the
                                                  SRT found no protected areas or routing                 been a contributing factor to limiting the            whale was nursing a calf. It is likely that
                                                  schemes that would protect the GOMx                     GOMx Bryde’s whale’s current range to                 the calf died, as it was still dependent
                                                  Bryde’s whale.                                          the De Soto Canyon. Thus, while we                    on the mother.
                                                                                                          acknowledge that existing protective                     Bryde’s whales are the third most
                                                  Mexico Energy Sector: Opening to                                                                              commonly reported species struck by
                                                                                                          regulations are in place, we agree with
                                                  Private Investment                                                                                            ships in the southern hemisphere (Van
                                                                                                          the SRT’s overall conclusion that the
                                                    The SRT expressed concern regarding                   existing regulatory mechanisms have                   Waerebeek et al., 2007). As previously
                                                  potential oil and gas development in the                not prevented the current status of the               described, tracking information from a
                                                  southern Gulf of Mexico. Mexico                         GOMx Bryde’s whale, for the reasons                   single GOMx Bryde’s whale indicated a
                                                  recently instituted reforms related to its              stated above.                                         consistent diel dive pattern over 3 days,
                                                  oil and gas sector that officially opened                                                                     with 88 percent of nighttime hours
                                                  Mexico’s oil, natural gas, and energy                   Factor E. Other Natural or Manmade                    spent within 15 m of the surface. This
                                                  sectors to private investment. As a                     Factors Affecting Its Continued                       suggested to the SRT that, if other
                                                  result, Mexico’s state-owned petroleum                  Existence                                             individuals exhibit a similar diving
                                                  company, Petroleos Mexicanos (Pemex)                       The SRT categorized threats under                  pattern, they would be at greater risk of
                                                  may now partner with international                      ESA Factor E by three groups: A general               ship strike, because they spend most of
                                                  companies for the purposes of exploring                 category for ‘‘other natural or human                 the time at the surface at night when
                                                  the southern Gulf of Mexico’s deep                      factors;’’ anthropogenic noise; and small             there is minimal visibility. Marine
                                                  water and shale resources. The SRT                      population concerns. Within the general               mammals that spend the majority of
                                                  found that more than 9 companies have                   sub-category for other natural or human               their nighttime hours near the surface
                                                  shallow water lease permits either                      factors, the SRT included: Vessel                     and animals that spend more time at or
                                                  pending or approved, and 2D and 3D                      collision; military activities; fishing gear          near the surface are at greater risk than
                                                  seismic data collection has begun. In                   entanglements; trophic impacts due to                 species that spend less time at the
                                                  2013, the U.S. Congress approved the                    commercial harvest of prey; climate                   surface (Rosel et al., 2016).
                                                  U.S.-Mexico Transboundary                               change; plastics and marine debris; and               Additionally, the threat of vessel
                                                  Hydrocarbons Agreement, which aims                      aquaculture. Within the anthropogenic                 collision may increase in the future
                                                  to facilitate joint development of oil and              noise sub-category of Factor E, the SRT               given the expansion of the Panama
                                                  natural gas in part of the Gulf of Mexico.              included: Aircraft and vessel noise                   Canal, which is anticipated to increase
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                                                  This agreement, coupled with recent                     associated with oil and gas activities;               vessel traffic in the Gulf of Mexico
                                                  reforms in Mexico, could lead to                        drilling and production noise associated              (Institute for Water Resources 2012).
                                                  development within the Gulf of Mexico                   with oil and gas activities; seismic                  Given the location of commercial
                                                  offshore Mexico oil and gas, including                  survey noise associated with oil and gas              shipping lanes, the difficulty of sighting
                                                  infrastructure for cross-border pipelines.              activities; noise associated with military            a whale at the surface at night, and the
                                                  The SRT found that recent                               training and exercises; noise associated              low ability of large ships to change
                                                  developments indicate a high potential                  with commercial fisheries and scientific              course quickly enough to avoid a whale,
                                                  for oil and gas development in these                    acoustics; and noise associated with                  the SRT’s scoring indicates that ship


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88649

                                                  strikes pose a ‘‘high’’ severity threat to              frequently for toothed whales, they                      Both the Gulf of Mexico shrimp trawl
                                                  the GOMx Bryde’s whale with ‘‘high’’                    remain a threat to small populations of               fishery and the butterfish trawl fishery
                                                  certainty.                                              baleen whales like the GOMx Bryde’s                   occur within the GOMx Bryde’s whale
                                                     Military Activities—Significant                      whale (Reeves et al., 2013). The SRT                  BIA (Rosel et al., 2016). However, the
                                                  portions of the Gulf of Mexico are used                 evaluated the special distribution and                shrimp trawl fishery has limited spatial
                                                  for military activities. NMFS conducted                 fishing effort for 12 fisheries that occur            overlap with the BIA and the areas that
                                                  a 2013 Biological Opinion to assess the                 in the Gulf of Mexico. Based on their                 do overlap represent only a small
                                                  impact of the Navy training exercises                   evaluation, the SRT concluded that five               portion of total fishing effort. The
                                                  and coordinated via a Letter of                         commercial fisheries (Table 7; Rosel et               butterfish trawl fishery is small, with
                                                  Authorization under the MMPA to                         al., 2016) overlap or possibly overlap                only two participants currently
                                                  govern unintentional takes incidental to                with the Bryde’s whale BIA and use gear               permitted, and limited available
                                                  training and testing activities (Rosel et               types (i.e., pelagic longlines, bottom                information. Based on the SRT’s
                                                  al., 2016). Although Level B harassment                 longlines, and trawls) that pose                      scoring, the threat of entanglement in
                                                  (i.e., activities that have the potential to            entanglement threats to whales.                       commercial fishing gear is ‘‘moderate’’
                                                  disturb or harass) is authorized, the                      Pelagic longlines are a known                      in severity with ‘‘moderate’’ certainty.
                                                  Navy determined that very few training                  entanglement threat to baleen whales, as                 Trophic Impacts Due to Commercial
                                                  or testing activities are likely to occur               the majority of mainline gear is in the               Harvest of Prey Items—While GOMx
                                                  within the BIA (see Figures 18 and 19                   water column and animals swimming in                  Bryde’s whales’ prey in the Gulf of
                                                  in Rosel et al., 2016). Moreover, the                   the area may interact with the gear                   Mexico are currently unknown (Rosel et
                                                  Navy agreed to expand their Planning                    (Andersen et al., 2008). The Atlantic                 al., 2016), they likely feed on anchovy,
                                                  Awareness Area to encompass the                         Ocean, Caribbean, Gulf of Mexico                      sardine, mackerel and herring, and
                                                  Bryde’s whale BIA and as a result they                  commercial pelagic longline fishery for               small crustaceans, similar to Bryde’s
                                                  will avoid planning major training                      large pelagic species is active within the            whales worldwide (Kato 2000). The two
                                                  activities there, when feasible. In                     GOMx Bryde’s whale BIA.                               main Gulf of Mexico commercial
                                                  addition, Eglin Air Force Base (AFB)                    Approximately two thirds of the BIA                   fisheries for small schooling fish are the
                                                  also conducts training exercises in the                 has been closed to commercial pelagic                 Gulf of Mexico menhaden purse-seine
                                                  Gulf of Mexico. Eglin AFB also has an                   longline fishing year-round since 2000,               fishery and the Florida west coast
                                                  incidental harassment authorization for                 when the Highly Migratory Species                     sardine purse-seine fishery; the main
                                                  common bottlenose dolphin and                                                                                 invertebrate fishery is the Gulf of
                                                                                                          Atlantic Tunas, Swordfish, and Sharks
                                                  Atlantic spotted dolphin, for their                                                                           Mexico shrimp trawl fishery. The SRT
                                                                                                          Fishery Management Plan was amended
                                                  Maritime Weapon Systems Evaluation                                                                            concluded that direct competition
                                                                                                          to close the De Soto Canyon Marine
                                                  Program. However, their training                                                                              between GOMx Bryde’s whale and
                                                                                                          Protected Area (65 FR 47214, August 1,
                                                  activities take place in relatively                                                                           commercial fisheries did not appear to
                                                                                                          2000). While longline fishing still
                                                  shallow water (i.e., 35 to 50 m depth).                                                                       be likely, based on the current
                                                                                                          occurs in the remaining one third of the
                                                  Eglin AFB does not anticipate that its                                                                        distribution of the GOMx Bryde’s whale,
                                                                                                          BIA (Figure 20B; Rosel et al., 2016), the
                                                  activities would take GOMx Bryde’s                                                                            the distribution of fishery effort, and
                                                                                                          fishery typically operates in waters
                                                  whales, because the GOMx Bryde’s                                                                              presumed fish and invertebrate habitat
                                                                                                          greater than 300m, where sightings of
                                                  whales are rare in the areas involved                                                                         (Rosel et al., 2016). The SRT also
                                                                                                          Bryde’s whales are infrequent. To date,               evaluated the threat of total biomass
                                                  (e.g., shallow waters); therefore, Eglin
                                                  AFB did not request a take authorization                no interactions between GOMx Bryde’s                  removal by the menhaden purse-seine
                                                  (Rosel et al., 2016; 81 FR 7307, February               whale and pelagic longline gear have                  fishery and the shrimp trawl fishery in
                                                  11, 2016). The SRT concluded that,                      been recorded.                                        the Gulf of Mexico and the resulting
                                                  although there are military activities in                  Gulf reef fish and shark bottom                    impact on ecosystem functioning,
                                                  the Gulf of Mexico, including the                       longline gear consists of a monofilament              species composition, and potential
                                                  northern Gulf of Mexico, most activities                mainline up to a mile in length                       trophic pathway alterations, and
                                                  appeared to occur outside the BIA. In                   anchored on the seafloor, with up to                  concluded that the ecosystem and
                                                  addition, they found that military                      1,000 baited hooks along the mainline                 trophic effects of these removals are
                                                  activities are not constant, and due to                 and marked with buoys. Generally                      unknown. Based on the SRT’s scoring,
                                                  the current scope of existing activities,               bottom longline gear poses less of a                  the threat from trophic impacts due to
                                                  the threat was considered less likely to                threat of entanglement threat to                      commercial harvest of prey is a ‘‘low’’
                                                  have negative impacts on the population                 cetaceans compared to pelagic longline                severity threat with ‘‘low’’ certainty.
                                                  (Rosel et al., 2016). However, the SRT                  gear, except when cetaceans forage                       Climate Change—The impacts of
                                                  believed that this threat would need to                 along the seafloor. Such foraging                     climate change on cetaceans are not
                                                  be re-evaluated if the intensity, timing,               appears to be the case with the GOMx                  easily quantified; however direct and
                                                  or location of military training exercises              Bryde’s whale, exposing them to risk of               indirect impacts are expected (Evans
                                                  encroached closer to the BIA. Based on                  entanglement in mainlines. These                      and Bj<rge 2013). Potential impacts of
                                                  the SRT rankings, the threat of military                fisheries overlap spatially with the                  climate change on marine mammals
                                                  activities (i.e., explosive pressure waves,             GOMx Bryde’s whale BIA. While bottom                  include range shifts, habitat degradation
                                                  target training, and vessel activities) is              longlining typically occurs in waters                 or loss, changes to the food web,
                                                  a ‘‘moderate’’ threat with ‘‘low’’                      less than 100m, fishing for yellowedge                susceptibility to disease and
                                                  certainty. The threat of noise from                     grouper, golden tilefish, blueline                    contaminants, and thermal intolerance
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                                                  military activities is considered under                 tilefish, and sharks occurs in deeper                 (MacLeod 2009, Evans and Bj<rge 2013).
                                                  the Anthropogenic Noise section, below.                 waters between 100 and 300m within                    The restricted distribution of the GOMx
                                                     Fishing Gear Entanglement—Marine                     the BIA. The available information                    Bryde’s whale is a concern, as climate
                                                  mammals are known to become hooked,                     indicates the GOMx Bryde’s whale                      change may disproportionately affect
                                                  trapped, or entangled in fishing gear,                  forages on or near the seafloor bottom,               species with specialized or restricted
                                                  leading to injury or mortality (Read                    such that, potential for interactions                 habitat requirements. As water
                                                  2008, Reeves et al., 2013). While gear                  exists, although no interactions have                 temperatures rise, many marine species
                                                  interactions are documented more                        been recorded (Rosel et al., 2016).                   will have to shift their distributions


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                                                  88650                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  northward or in a direction that                        safety (Gulf of Mexico Fishery                        Mexico. Routine aircraft overflights may
                                                  maintains a near-constant environment                   Management Council and National                       interrupt and elicit a startle response
                                                  (e.g., temperature and prey availability)               Marine Fisheries Service 2009). Marine                from marine mammals nearby
                                                  (Evans et al., 2010). Within the Gulf of                mammals are known to interact with                    (Richardson et al., 1995). However, if
                                                  Mexico, GOMx Bryde’s whales have                        aquaculture facilities through physical               marine mammals are nearby, the
                                                  little room to shift their distribution                 interaction with nets, ropes, twine and               disturbance caused by helicopters
                                                  northward into cooler waters.                           anchor lines (Price and Marris 2013).                 approaching or departing OCS oil and
                                                  Furthermore, the predicted changes in                   Because each application, including the               gas facilities will be short in duration
                                                  freshwater inflow and the associated                    proposed location, will be considered                 and transient in nature. The SRT
                                                  effects on productivity may affect the                  on a case-by-case basis, taking into                  reasoned that aircraft and vessel
                                                  health of the Gulf of Mexico. While                     account potential impacts to marine                   operations may ensonify large areas, but
                                                  recognizing the potential threat that                   mammals, and no aquaculture facilities                due to the lack of oil and gas activities
                                                  climate change poses to the GOMx                        are currently sited in the Gulf of                    currently in the eastern Gulf of Mexico,
                                                  Bryde’s whale, the SRT considered that                  Mexico, the SRT scoring indicates that                the threat from service aircraft and
                                                  there are more significant and                          the SRT found aquaculture to be a                     vessel noise to GOMx Bryde’s whale
                                                  immediate pressures on the GOMx                         ‘‘low’’ severity threat with ‘‘low’’                  should be minimal.
                                                  Bryde’s whale (Rosel et al., 2016). The                 certainty.                                               Oil drilling and production activities
                                                  SRT assigned the threat of climate                         Anthropogenic Noise—A variety of                   produce low-frequency underwater
                                                  change as a ‘‘low’’ severity threat to                  anthropogenic noise sources, such as                  sounds that are in the frequency range
                                                  GOMx Bryde’s whale with ‘‘low’’                         energy exploration and development                    detectable by the GOMx Bryde’s whale
                                                  certainty.                                              and shipping have considerable energy                 and, given the amount of drilling
                                                     Plastics and Marine Debris—Plastics                  at low frequencies (<100 Hz) (Sodal                   activity and platforms in the central and
                                                  comprise 60–80 percent of all marine                    1999; Nieukirk et al., 2004; Hildebrand               western Gulf of Mexico, noise levels are
                                                  debris (Baulch and Perry 2014), and                     2009; Nieukirk et al., 2012) and are                  already high. While there are currently
                                                  derelict fishing gear is the second most                pervasive in the Gulf of Mexico (Rosel                no wells being drilled in the eastern
                                                  common form of marine debris                            et al., 2016). Baleen whales produce                  Gulf of Mexico, and no production
                                                  (National Oceanic Service 2015). The                    calls that span a similar low frequency               platforms in place, the potential
                                                  interactions of marine mammals with                     range (20 Hz–30 kHz), and therefore,                  opening of the EPA that overlaps the
                                                  marine debris in the Gulf of Mexico are                 presumably these species’ best hearing                GOMx Bryde’s whale BIA for oil and gas
                                                  not frequently documented and the SRT                   abilities fall within this range, and are             exploration is of considerable concern
                                                  did not find any documented cases                       most impacted by low-frequency sounds                 (Rosel et al., 2016). Based on the SRT’s
                                                  specific to Bryde’s whale (NOAA                         (Richardson et al., 1995, Ketten 1997,                scoring, the threat of noise generated
                                                  Fisheries Marine Mammal Health and                      Ketten et al., 2013, Cranford and Krysl               from aircraft and vessels associated with
                                                  Stranding Response Database). Less than                 2015). Marine mammals rely heavily on                 oil and gas activities and noise from
                                                  one percent of marine mammal                            their hearing to detect and interpret                 drilling and oil production is a
                                                  strandings in the Gulf of Mexico from                   communication and environmental cues                  ‘‘moderate’’ threat, with a ‘‘moderate’’
                                                  2000–2014 showed evidence of                            to select mates, find food, maintain                  level of certainty for noise associated
                                                  entanglement or ingestion of marine                     group structure and relationships, avoid              with aircraft and vessels, and the SRT
                                                  debris (NOAA Fisheries Marine                           predators, navigate, and perform other                assigned a ‘‘low’’ level of certainty for
                                                  Mammal Health and Stranding                             critical life functions (Rosel et al., 2016).         noise generated from drilling and oil
                                                  Response Database, March 21, 2016).                     As noise levels rise in the marine                    production.
                                                  While noting that the records of                        environment, there are a variety of                      Seismic Survey Noise Associated with
                                                  reported marine mammal strandings                       direct and indirect adverse physical and              Oil and Gas Activities—The northern
                                                  may not be comprehensive, the SRT’s                     behavioral effects to marine mammals                  Gulf of Mexico is an area of high seismic
                                                  scoring ranked this threat as ‘‘low’’                   such as death, hearing loss or                        survey activity; seismic surveys are
                                                  severity with ‘‘low’’ certainty (Rosel et               impairment, stress, behavioral changes,               typically conducted 24 hours a day,
                                                  al., 2016).                                             physiological effects, reduced foraging               365-days a year, using airguns that are
                                                     Aquaculture—There are currently no                   success, reduced reproductive success,                a source of primarily low-frequency
                                                  aquaculture facilities in the U.S. waters               masking of communication and                          sound (Sodal 1999), and that overlap
                                                  of the Gulf of Mexico. However, a final                 environmental cues, and habitat                       with ranges baleen whales use for
                                                  rule was published on January 13, 2016                  displacement (Richardson et al., 1995,                communication and hearing (Rosel et
                                                  (81 FR 1761) regulating offshore marine                 Southall et al., 2007, Francis and Barber             al., 2016). These low-frequency sounds
                                                  aquaculture in the Gulf of Mexico and                   2013). The SRT evaluated                              can travel substantial distances and
                                                  establishing a regional permitting                      anthropogenic noise and separately                    airgun sounds have been recorded many
                                                  process. We note that this final rule is                assessed, as detailed below, noise from               hundreds of miles away from the survey
                                                  currently under challenge in a pending                  aircraft and vessels associated with oil              locations (Nieukirk et al., 2004). Seismic
                                                  court proceeding, Gulf Fishermen’s                      and gas activities, seismic surveys                   surveys have the potential to cause
                                                  Association, et al. v. NMFS, 16–cv–                     associated with oil and gas activities,               serious injury to animals within 100m–
                                                  01271 (E.D. La.). The associated Fishery                noise associated with military training               1km of airguns with source levels of 230
                                                  Management Plan for Regulating                          and exercises, noise associated with                  dB re 1 mPa (peak) or higher (Southall
                                                  Offshore Aquaculture in the Gulf of                     commercial fisheries and scientific                   et al., 2007). Behavioral changes
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                                                  Mexico (FMP) specifies that each                        acoustics, and noise associated with                  following seismic surveys, specifically
                                                  facility must satisfy a list of siting                  vessels and shipping traffic.                         changes in vocal behavior and habitat
                                                  requirements and conditions and                            Noise Generated from Aircraft and                  avoidance, have been documented for
                                                  specifies that an application may be                    Vessels and Oil Drilling and Production               baleen whales (Malme et al., 1984,
                                                  denied for potential risks to essential                 Associated with Oil and Gas Activities—               McCauley et al., 1998, Gordon et al.,
                                                  fish habitat, endangered and threatened                 Aircraft and vessel operations (service               2001, Blackwell et al., 2015). While
                                                  species, marine mammals, wild fish and                  vessels, etc.) support outer continental              reactions of Bryde’s whales to seismic
                                                  invertebrate stocks, public health, or                  shelf oil and gas activities in the Gulf of           surveys have not been studied, the


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                           88651

                                                  auditory abilities of all baleen whale                  of noise associated with commercial                   Small Population Concerns
                                                  species are considered to be broadly                    fisheries and scientific acoustics a                     The final sub-category considered by
                                                  similar based upon vocalization                         ranking of ‘‘low’’ in severity with ‘‘low’’           the SRT under ESA Factor E was small
                                                  frequencies and ear anatomy (Ketten                     certainty.                                            population concerns. The SRT
                                                  1998). There are currently few seismic                     Noise Associated with Shipping                     considered Allee effects, demographic
                                                  surveys occurring in the eastern Gulf of                Traffic and Vessels—Noise from                        stochasticity, genetics, k-selected life-
                                                  Mexico, due in part to the moratorium                                                                         history parameters, and stochastic and
                                                                                                          shipping traffic is an unintended
                                                  on energy exploration in the EPA;                                                                             catastrophic events under this sub-
                                                                                                          byproduct of shipping and depends on
                                                  however, the SRT noted that, given the                                                                        category.
                                                                                                          factors such as ship type, load, speed,
                                                  ability of low-frequency sounds to travel                                                                        Allee Effects—If a population is
                                                  substantial distances, sounds from                      ship hull and propeller design; noise
                                                                                                          levels increase with increasing speed                 critically small in size, individuals may
                                                  nearby surveys may be impacting the                                                                           have difficulty finding a mate. The
                                                  GOMx Bryde’s whales in the BIA. The                     and vessel size (Allen et al., 2012,
                                                                                                          McKella et al 2012b, Rudd et al., 2015).              probability of finding a mate depends
                                                  SRT scorned anthropogenic noise                                                                               largely on density (i.e., abundance per
                                                  associated with seismic surveys as a                    Shipping noise is characterized by
                                                                                                          mainly low frequencies (Hermannsen et                 area) rather than absolute abundance
                                                  ‘‘high’’ severity threat with ‘‘moderate’’                                                                    alone (Rosel et al., 2016). As previously
                                                  certainty.                                              al., 2014) and contributes significantly
                                                                                                          to low-frequency noise in the marine                  discussed, noise from ships and
                                                     Noise Associated with Military
                                                                                                          environment (National Research                        industrial oil activities, including
                                                  Training and Exercises—Military
                                                                                                          Council 2003, Hildebrand 2009).                       seismic exploration, could mask mating
                                                  training and exercises use active sonar
                                                  sources and explosives as part of their                 Approximately 50 percent of U.S.                      calls and contribute to reduced
                                                  operations and each of these sources                    merchant vessel traffic (as measured by               fecundity of the GOMx Bryde’s whale
                                                  have the potential to impact marine                     port calls or tonnage for merchant                    (Rosel et al., 2016). The small
                                                  mammals (Rosel et al., 2016). However,                                                                        population size (i.e., likely less than 100
                                                                                                          vessels over 1000 gross tons) occurs at
                                                  as discussed above, most military                                                                             individuals) may mean that Allee effects
                                                                                                          U.S. Gulf of Mexico ports, indicating
                                                  activities that occur in the Gulf of                                                                          are occurring, making it difficult for
                                                                                                          shipping activity is a significant source
                                                  Mexico take place outside of the GOMx                                                                         individual whales to find one another
                                                                                                          of noise in this region. Noise is likely to
                                                  Bryde’s whale BIA and the Navy                                                                                for breeding, thereby reducing the
                                                                                                          increase as shipping trends indicate that
                                                  expanded their Planning Awareness                                                                             population growth rate. The SRT’s
                                                                                                          faster, larger ships will traverse the Gulf           scored the impacts from Allee effects as
                                                  Area to encompass the BIA (see Military                 of Mexico following expansion of the
                                                  Activities above). The SRT found this                                                                         a ‘‘moderate’’ threat in both severity and
                                                                                                          Panama Canal (Rosel et al., 2016).                    certainty.
                                                  threat to be less likely to have a negative
                                                  impact on the GOMx Bryde’s whale                           Shipping noise in the northeast                       Demographic Stochasticity—
                                                  compared to other threats associated                    United States was predicted to reduce                 Demographic stochasticity refers to the
                                                  with the anthropogenic noise                            the communication space of humpback                   variability of annual population change
                                                  considered in this sub-category.                        whales, right whales, and fin whales by               arising from random birth and death
                                                  Therefore, the SRT assigned the threat                  8 percent, 77 percent, and 20 percent,                events at the individual level.
                                                  of noise associated with military                       respectively, by masking their calls                  Populations that are small in number
                                                  training and exercises as ‘‘low’’ in                    (Clark et al. 2009). Because Bryde’s                  are more vulnerable to adverse effects
                                                  severity with a ‘‘moderate’’ level of                   whale call source levels are most similar             from demographic stochasticity.
                                                  certainty.                                              to those of right whales, the SRT found               Demographic stochasticity is also more
                                                     Noise Associated with Commercial                     they may be similarly impacted (Rosel                 problematic for slowly reproducing
                                                  Fisheries and Scientific Acoustics—                     et al., 2016). Documented impacts of                  species, such as GOMx Bryde’s whales,
                                                  Commercial and scientific vessels                       vessel and shipping noise on marine                   which under normal conditions are
                                                  employ active sonar for the detection,                  mammals, like the GOMx Bryde’s                        likely to produce a calf every two to
                                                  localization, and classification of                     whale, include: habitat displacement;                 three years, similar to Bryde’s whales
                                                  underwater targets, including the                       changes in diving and foraging behavior;              worldwide and Eden’s whale. Mean
                                                  seafloor, plankton, fish, and human                     changes in vocalization behavior; and                 population growth rates can be reduced
                                                  divers (Hildebrand 2009). Source                        altered stress hormone levels (Rosel et               by variances in inter-annual growth
                                                  frequencies of many of these sonars are                 al., 2016).                                           rates, and this variance steadily
                                                  likely above the frequency range for                                                                          increases as the population size
                                                                                                             The SRT found that there is a high                 decreases (Goodman 1987). The SRT
                                                  Bryde’s whale hearing (Watkins 1986,
                                                                                                          level of low frequency noise caused by                also noted that, while skewed sex ratios
                                                  Au et al. 2006, Tubelli et al. 2012).
                                                  Recent technological advancements,                      shipping activity in the Gulf of Mexico,              do not currently appear to be a problem
                                                  such as Ocean Acoustic Waveguide                        and that it is likely the GOMx Bryde’s                for GOMx Bryde’s whales, their low
                                                  Remote Sensing (OAWRS) system, use                      whale is experiencing significant                     calving rate and small population size
                                                  low-frequency acoustics that have the                   biological impacts as a result. The                   create a higher probability of developing
                                                  potential to impact baleen whale                        impacts to the GOMx Bryde’s whale are                 skewed sex ratios through chance alone.
                                                  behavior (Risch et al., 2012). However,                 assumed to be similar to those observed               The SRT’s scored the threat from
                                                  the SRT concluded these low-frequency                   in other low frequency hearing baleen                 impacts from demographic stochasticity
                                                  systems are not likely to be used in U.S.               whale species, and include increased                  as ‘‘high’’ in both severity and certainty.
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  waters in the future (Rosel et al., 2016).              stress hormone levels, changes in dive                   Genetics—Genetic stochasticity
                                                  Because the acoustic frequencies                        and foraging behavior and                             results from three separate factors:
                                                  associated with the sonar systems                       communication, and habitat                            Inbreeding depression, loss of
                                                  employed by commercial fisheries and                    displacement. The SRT assigned the                    potentially adaptive genetic diversity
                                                  scientific vessels are not within the                   threat of noise associated with shipping              and mutation accumulation (Frankham
                                                  range of GOMx Bryde’s whale hearing                     traffic and vessels a score of ‘‘moderate’’           2005, Reed 2005). The SRT concluded
                                                  and are not likely to be used in the Gulf               severity threat with ‘‘moderate’’                     that the very small population size and
                                                  of Mexico, the SRT assigned the threat                  certainty.                                            documented low level of genetic


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                                                  88652                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  diversity (Rosel and Wilcox 2014)                       Summary of Factor E                                   assessment that these threats are
                                                  indicates that the GOMx Bryde’s whale                      The overall threat rank for ESA Factor             currently affecting the status of the
                                                  is likely already experiencing                          E by the SRT was influenced by the                    GOMx Bryde’s whale, and find that they
                                                  inbreeding (mating with related                         suite of threats assessed by the SRT.                 are putting it at a heightened risk of
                                                  individuals) that could lead to a loss of               Based on the SRT’s scoring, vessel                    extinction. We also agree with the SRT’s
                                                  potentially adaptive genetic diversity                  collision, followed by fishing gear                   characterization of factors B and C,
                                                  and accumulation of deleterious                         entanglements, presents the most                      overutilization for commercial,
                                                  mutations (Frankham 2005, Reed 2005).                   serious individual threats of those                   recreational, scientific, or educational
                                                  Applying the estimate from Taylor et                    considered in the generic ‘‘other natural             purposes and disease, parasites, or
                                                  al., (2007) of 0.51 for the proportion of                                                                     predation, and their low overall ranking.
                                                                                                          and human factors,’’ category. The
                                                  a Bryde’s whale population that is                                                                            We find that these are not factors that
                                                                                                          threat of vessel collision is a significant
                                                                                                                                                                are likely contributing to the extinction
                                                  mature, and assuming a stable age                       source of mortality for a variety of
                                                                                                                                                                risk for the GOMx Bryde’s whale.
                                                  distribution, the SRT concluded there                   coastal whale species and several
                                                                                                                                                                Finally, we agree with the SRT’s overall
                                                  would be at most 50 mature individuals                  important commercial shipping lanes
                                                                                                                                                                conclusion for Factor D, that existing
                                                  for the GOMx Bryde’s whale population,                  travel through the GOMx Bryde’s whale
                                                                                                                                                                regulatory measures have not
                                                  putting the whales at immediate                         BIA (Rosel et al., 2016). Fishing gear
                                                                                                                                                                adequately prevented the GOMx Bryde’s
                                                  recognized risk for genetic factors. Even               entanglement from the pelagic longline
                                                                                                                                                                whale from reaching its current status,
                                                  with a 50–50 sex ratio, the SRT                         and bottom longline fisheries is a threat
                                                                                                                                                                given the presence of current threats to
                                                  concluded that current abundance                        due to the spatial overlap between these              the GOMx Bryde’s whale identified
                                                  estimates are so low that current Bryde’s               fisheries and the Bryde’s whale BIA,                  under Factors A and E.
                                                  whale population levels would meet                      and the potential for interactions given
                                                  any genetic risk threshold for decreased                the whale’s foraging behavior (Rosel et               Demographic Risk Analysis
                                                  population growth due to inbreeding                     al., 2016). The SRT’s overall threat                     The SRT also evaluated four
                                                  depression and potential loss of                        ranking for the generic ‘‘other natural or            demographic factors to assess the degree
                                                  adaptive genetic diversity (Rosel et al.,               human factors category’’ was moderate-                of extinction risk: Abundance, spatial
                                                  2016). The SRT scored the threat of                     high. The SRT’s overall threat ranking                distribution, growth/productivity, and
                                                  genetic stochasticity as ‘‘high’’ in both               for the sub-category of ‘‘anthropogenic               genetic diversity. These demographic
                                                                                                          noise’’ was ‘‘high’’, which was driven                criteria have been used in previous
                                                  severity and certainty.
                                                                                                          strongly by the impacts of seismic noise,             NMFS status reviews to summarize and
                                                     K-Selected Life History Parameters—                  shipping noise, and oil and gas                       assess a population’s extinction risk due
                                                  In general all whales are considered as                 activities. The greatest threat identified            to demographic processes. The SRT
                                                  k-selected species due to their life                    by the SRT under ESA Factor E was                     used the following definitions to rank
                                                  history characteristics of large-size, late-            ‘‘small population concerns, which the                these factors: 1 = ‘‘No or low risk: it is
                                                  maturity, and iteroparous reproduction                  SRT’s scoring unanimously assigned a                  unlikely that this factor contributes
                                                  that is energetically expensive, resulting              ‘‘high’’ overall threat rank.                         significantly to risk of extinction, either
                                                  in few offspring. K-selected life history                  In summary, the SRT found the level                by itself or in combination with other
                                                  characteristics in and of themselves are                of anthropogenic noise in the Gulf of                 factors;’’ 2 = ‘‘Low risk: it is unlikely
                                                  not a problem for baleen whales, but a                  Mexico, the cumulative threat posed by                that this factor contributes significantly
                                                  small population size coupled with a                    energy exploration, development and                   to risk of extinction by itself, but some
                                                  low productivity rate further hinders                   production, and the risk of vessel                    concern that it may contribute, in
                                                  population growth and increases the                     collisions, in combination with the                   combination with other factors;’’ 3 =
                                                  time frame for recovery when, as with                   small population size, are threats that               ‘‘Moderate risk: it is likely that this
                                                  the GOMx Bryde’s whale, the                             are likely to eliminate or seriously                  factor in combination with others
                                                  population size is small and overly                     degrade the population. The overall                   contributes significantly to risk of
                                                  vulnerable to threats (Rosel et al., 2016).             rank the SRT assigned for Factor E was                extinction;’’ 4 = ‘‘High risk: it is likely
                                                  The SRT assigned the threat from k-                     ‘‘high’’ (i.e., two high overall ranks and            that this factor, by itself, contributes
                                                  selective life history parameters a score               one moderate-high overall rank),                      significantly to risk of extinction’’; and
                                                  of ‘‘high’’ in severity and certainty.                  indicating that there are a high number               5 = ‘‘Very high risk: it is highly likely
                                                                                                          of threats that are moderately or very                that this factor, by itself, contributes
                                                     Stochastic and Catastrophic Events—
                                                                                                          likely to contribute to the decline of the            significantly to risk of extinction.’’ As
                                                  The small number of GOMx Bryde’s                                                                              described in detail below, the SRT
                                                                                                          GOMx Bryde’s whale. Considering the
                                                  whales and their restricted range (i.e.,                assessment completed by the SRT, we                   concluded that each of these four
                                                  De Soto Canyon area of the northeastern                 determine that the threats considered                 demographic factors are likely to
                                                  Gulf of Mexico) exacerbates the species’                under Factor E are currently increasing               contribute significantly to the risk of
                                                  vulnerability to stochastic and                         the risk of extinction for the GOMx                   extinction for the GOMx Bryde’s whale.
                                                  catastrophic events. Further, the GOMx                  Bryde’s whale.                                           The SRT determined that both
                                                  Bryde’s whales are in close proximity to                                                                      abundance and spatial distribution were
                                                  oil extraction developments, extreme                    NMFS’ Conclusions From Threats                        ‘‘very high risk’’ factors, meaning that it
                                                  weather events, and HABs. For example,                  Evaluation                                            is highly likely that each factor, by
                                                  an analysis of the impacts of Deepwater                   The most serious threats to the GOMx                itself, contributes significantly to the
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                                                  Horizon oil spill on cetacean stocks in                 Bryde’s whale are: Energy exploration                 risk of extinction. The SRT concluded
                                                  the Gulf of Mexico estimated that 17                    and development, oil spills and oil spill             the best available science indicated: (1)
                                                  percent of the GOMx Bryde’s whale                       response, vessel collision,                           The number of GOMx Bryde’s whales is
                                                  population was killed (DWH Trustees                     anthropogenic noise, and the effects of               likely less than 100 mature individuals,
                                                  2016). The SRT scored the threat from                   small population size. We consider                    and (2) their current distribution
                                                  stochastic and catastrophic events on                   these threats, under ESA section 4(a)(1)              restricted to a small region along the
                                                  the GOMx Bryde’s whale as ‘‘high’’ in                   factors A and E, as overall ‘‘high’’                  continental shelf break (100–300 m) in
                                                  severity with ‘‘high’’ certainty.                       threats. We agree with the SRT’s                      the De Soto Canyon makes them


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                          88653

                                                  vulnerable to catastrophe. The SRT                         The GOMx Bryde’s whale population is               regulatory mechanisms), and E (other
                                                  concluded that the GOMx Bryde’s whale                   very small and is restricted to a small habitat       natural or manmade factors affecting its
                                                  constitutes a dangerously small                         area in the De Soto Canyon region of the              continued existence). Accordingly, we
                                                                                                          northeastern [Gulf of Mexico]. Their level of         find that the species meets the
                                                  population, at or below the near-
                                                                                                          genetic divergence from other Bryde’s whales
                                                  extinction population level, and the                    worldwide indicates they are reproductively           definition of an endangered species.
                                                  species’ restricted range makes it                      isolated and on a unique evolutionary                 Protective Efforts
                                                  vulnerable to a single catastrophic event               trajectory. The Society for Marine
                                                  (Rosel et al., 2016).                                   Mammalogy’s Committee on Taxonomy                        Section 4(b)(1)(A) of the ESA requires
                                                     The SRT ranked both growth/                          concluded they represent at least an                  the Secretary, when making a listing
                                                  productivity and genetic diversity as                   unnamed subspecies of Bryde’s whales.                 determination for a species, to take into
                                                  ‘‘high’’ risk factors, meaning that it is               Although the historic population size is              consideration those efforts, if any, being
                                                                                                          unknown, whaling data indicate their                  made by any State or foreign nation to
                                                  likely that each factor, by itself,
                                                                                                          distribution in the [Gulf of Mexico] was once         protect the species. To evaluate the
                                                  contributes significantly to the risk of                much broader. The Team concluded,
                                                  extinction. The SRT noted that the life-                                                                      efficacy of domestic efforts that have not
                                                                                                          therefore, based on the best available
                                                  history characteristics of the GOMx                     scientific data, that there has been a range
                                                                                                                                                                yet been implemented or that have been
                                                  Bryde’s whale (i.e., late-maturing, long                contraction such that their primary range is          implemented, but have not yet
                                                  gestation, single offspring) result in a                restricted to the northeastern [Gulf of               demonstrated to be effective, the
                                                  slower recovery ability from their small                Mexico] although there are limited data from          Services developed a joint ‘‘Policy for
                                                  population size and leads to a longer                   outside U.S. waters. The north-central and            Evaluation of Conservation Efforts
                                                  time during which a risk factor like a                  western [Gulf of Mexico] contains some of             When Making Listing Decisions’’ (PECE)
                                                                                                          the most industrialized marine waters in the          (68 FR 15100; March 28, 2003). The
                                                  catastrophe could occur (Rosel et al.,                  U.S. due to expansive energy exploration and
                                                  2016). Allee effects were also identified                                                                     PECE is designed to ensure consistent
                                                                                                          production, and also experiences significant          and adequate evaluation on whether
                                                  by the SRT as increasing extinction risk                commercial shipping traffic and commercial
                                                  because the small number of individuals                 fishing activity. The area in the northeastern
                                                                                                                                                                domestic conservation efforts that have
                                                  reduces population growth rate through                  [Gulf of Mexico], where all verified sightings        been recently adopted or implemented,
                                                  mate limitation (Rosel et al., 2016).                   of Bryde’s whales have been recorded during           but not yet proven to be successful, will
                                                  Similarly, the low level of genetic                     cetacean surveys, has experienced the least           result in recovering the species to the
                                                  diversity, documented in both mtDNA                     amount of energy exploration, due in part to          point at which listing is not warranted
                                                  and nuclear DNA by Rosel and Wilcox
                                                                                                          a moratorium put in place in 2006. However,           or contribute to forming the basis for
                                                                                                          this moratorium expires in 2022 and the               listing a species as threatened rather
                                                  (2014), combined with the small                         eastern [Gulf of Mexico] could be exposed to          than endangered. The PECE is expected
                                                  population size, means that individuals                 increased energy activities. Commercial               to facilitate the development of
                                                  are likely breeding with related                        fishing and vessel traffic also could affect the
                                                                                                                                                                conservation efforts by states and other
                                                  individuals and inbreeding depression                   whales in the eastern [Gulf of Mexico].
                                                                                                             The Team concluded that the small                  entities that sufficiently improve a
                                                  may be occurring, resulting in a loss of
                                                                                                          population size alone put the GOMx Bryde’s            species’ status so as to make listing the
                                                  genetic diversity (Rosel et al., 2016).
                                                                                                          whale at high risk of extinction. The small           species as threatened or endangered
                                                  Extinction Risk Analysis                                size of this population makes it vulnerable to        unnecessary.
                                                                                                          inbreeding depression, demographic                       The PECE establishes two overarching
                                                    The SRT considered the information
                                                                                                          stochasticity, and stochastic and catastrophic        criteria to use in evaluating efforts
                                                  provided in the Status Review report                    events. The combination of small size plus            identified in conservations plans,
                                                  and demographic risk factors to conduct                 risk factors that may have affected the               conservation agreements, management
                                                  an Extinction Risk Analysis (ERA). The                  population in the past and may affect it in           plans or similar documents: (1) The
                                                  SRT summarized its ERA for the GOMx                     the future, further increase the extinction           certainty that the conservation efforts
                                                  Bryde’s whale, placing it in the context                risk. These factors include, in particular,
                                                                                                                                                                will be implemented; and (2) the
                                                  of our agency guidelines on how to                      impacts due to energy exploration (e.g.,
                                                                                                          habitat modification, noise from seismic              certainty that the efforts will be
                                                  synthesize extinction risk (NMFS 2015).                                                                       effective. We have considered the
                                                  Those agency guidelines define the high                 surveys, and shipping) and energy
                                                                                                          production (e.g., oil spills), and vessel             actions identified by the SRT (i.e.,
                                                  extinction risk category as:                                                                                  potential future DWH PDARP
                                                                                                          collisions. The Team’s concern for this group
                                                     A species or DPS with a high risk of                 of whales is further increased by uncertainty         restoration activities and Gulf of Mexico
                                                  extinction is at or near a level of abundance,          regarding the cause(s) of its small population        Marine Assessment Program for
                                                  productivity, spatial structure, and/or                 size, its limited distribution, current and           Protected Species (GoMMAPPS) as
                                                  diversity that places its continued                     future threats, and the long-term viability of        conservation efforts and we have
                                                  persistence in question. The demographics of            the population (Rosel et al., 2016).
                                                  a species or DPS at such a high level of risk
                                                                                                                                                                concluded that they do not meet the
                                                  may be highly uncertain and strongly
                                                                                                            We consider the SRT’s approach to                   PECE policy criteria (see analysis
                                                  influenced by stochastic or depensatory                 assessing the extinction risk for GOMx                below).
                                                  processes. Similarly, a species or DPS may be           Bryde’s whale appropriate, consistent                    The Status Review report (Rosel et al.,
                                                  at high risk of extinction if it faces clear and        with our agency guidance, and based on                2016) summarized two known
                                                  present threats (e.g., confinement to a small           the best scientific and commercial                    conservation efforts, both of which are
                                                  geographic area; imminent destruction,                  information available. Based on the key               planned and have yet to be
                                                  modification, or curtailment of its habitat; or         conclusions from the Status Review                    implemented, which we further assess
                                                  disease epidemic) that are likely to create             report, including the ERA (Rosel et al.,              here: The DWH PDARP and the
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                                                  present and substantial demographic risks.              2016), we find that the GOMx Bryde’s                  GoMMAPPS. The restoration plan in the
                                                  Applying this standard, the SRT                         whale is a species, as defined by the                 PDARP is a framework for planning
                                                  unanimously agreed that the GOMx                        ESA, which is in danger of extinction                 future restoration projects. For marine
                                                  Bryde’s whale has a high risk of                        throughout all of its range, as a result of           mammals, the PDARP focuses on
                                                  extinction.                                             ESA Factors A (the present or                         restoration activities that support
                                                    The SRT provided the following                        threatened destruction, modification or               population resilience, reduce further
                                                  summary of the concerns leading to its                  curtailment of a species’ habitat or                  harm or impacts, and complement
                                                  overall extinction risk assessment:                     range), D (inadequacy of existing                     existing management priorities, with the


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                                                  88654                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  goal of compensating for the population                 considered effective measures in                      that a species or population stock is
                                                  injuries suffered by each marine                        reducing the current extinction risk.                 below its optimum sustainable
                                                  mammal stock. GOMx Bryde’s whales                                                                             population’’; (2) a state to which
                                                                                                          Proposed Listing Determination
                                                  were the most impacted offshore                                                                               authority has been delegated makes the
                                                  cetacean by the DWH oil spill, suffering                   Section 4(b)(1) of the ESA requires                same determination; or (3) a species or
                                                  an estimated 22 percent maximum                         that we make listing determinations                   stock ‘‘is listed as an endangered species
                                                  decline in population size (DWH                         based solely on the best scientific and               or a threatened species under the
                                                  Trustees 2016). Although specific                       commercial data available after                       [ESA]’’ (16 U.S.C. 1362(1)). Section
                                                  projects are not yet identified to                      conducting a review of the status of the              115(a)(1) of the MMPA establishes that
                                                                                                          species and taking into account those                 ‘‘[i]n any action by the Secretary to
                                                  implement Bryde’s whale restoration,
                                                                                                          efforts, if any, being made by any state              determine if a species or stock should be
                                                  we anticipate that they should benefit
                                                                                                          or foreign nation, or political                       designated as depleted, or should no
                                                  the population, but, considering the
                                                                                                          subdivisions thereof, to protect and                  longer be designated as depleted,’’ such
                                                  species’ life history, population                       conserve the species. We have reviewed
                                                  recovery to pre-spill levels will take                                                                        determination must be made by rule,
                                                                                                          the best available scientific and                     after public notice and an opportunity
                                                  decades. More importantly, the                          commercial information contained in                   for comment (16 U.S.C. 1383b(a)(1)). It
                                                  population estimates considered by the                  the Status Review report, the Threats                 is our position that a marine mammal
                                                  SRT were pre-spill and were still found                 Evaluation, Demographic Evaluation,                   species or stock automatically gains
                                                  to represent a high extinction risk.                    and the ERA (Rosel et al., 2016). We                  ‘‘depleted’’ status under the MMPA
                                                  Therefore, the conservation benefits that               found that the GOMx Bryde’s whale is                  when it is listed under the ESA.
                                                  may be expected through                                 a species, as defined by the ESA, which
                                                  implementation of the PDARP would                       is in danger of extinction throughout all             Identifying ESA Section 7 Consultation
                                                  not be expected to reduce the extinction                of its range as a result of ESA section               Requirements
                                                  risk for Bryde’s whale to a degree where                4(a)(1) Factors A, D, and E. After                       Section 7(a)(2) of the ESA and joint
                                                  this population qualifies only as                       considering efforts being made to                     NMFS/U.S. Fish and Wildlife Service
                                                  threatened or where that listing is not                 protect the species, we could not                     regulations require Federal agencies to
                                                  warranted.                                              conclude that existing or proposed                    consult with us on any actions they
                                                     We also considered the proposed                      conservation efforts would alter its                  authorize, fund, or carry out if those
                                                  results from GoMMAPPS and its                           extinction risk. Accordingly, we                      actions may affect the listed species or
                                                  potential to protect and restore the                    propose to list the GOMx Bryde’s whale                designated critical habitat. Based on
                                                  population of GOMx Bryde’s whale. The                   as an endangered species.                             currently available information, we can
                                                  purpose of this program is to improve                                                                         conclude that examples of Federal
                                                                                                          Effects of Listing
                                                  information about abundance,                                                                                  actions that may affect GOMx Bryde’s
                                                                                                            Conservation measures provided for                  whale include, but are not limited to:
                                                  distribution, habitat use, and behavior
                                                                                                          species listed as endangered or                       Authorizations for energy exploration
                                                  of living marine resources (e.g., marine
                                                                                                          threatened under the ESA include                      (e.g., habitat modification, noise from
                                                  mammals, sea turtles, sea birds) in the
                                                                                                          recovery plans (16 U.S.C. 1533(f)),                   seismic surveys, and shipping), energy
                                                  Gulf of Mexico, as well as to mitigate
                                                                                                          critical habitat designations (16 U.S.C.              production (e.g., oil drilling and
                                                  and monitor potential impacts of human
                                                                                                          1533(a)(3)(A)), Federal agency                        production), actions that directly or
                                                  activities. GoMMAPPS promotes
                                                                                                          consultation requirements (16 U.S.C.                  indirectly introduce vessel traffic that
                                                  collaborations via data sharing with
                                                                                                          1536), and protective regulations (16                 could result in collisions, and military
                                                  other research efforts in the Gulf of
                                                                                                          U.S.C. 1533(d)). Recognition of the                   activities and fisheries regulations that
                                                  Mexico, including potentially with
                                                                                                          species’ status through listing promotes              may impact the species.
                                                  Mexico. Given the scope of the program,                 conservation actions by Federal and
                                                  studies are likely to increase scientific               state agencies, private groups, and                   Take Prohibitions
                                                  understanding of the GOMx Bryde’s                       individuals, as well as the international                Because we are proposing to list this
                                                  whale and its habitat, support                          community. Both a recovery program                    species as endangered, all of the take
                                                  management decisions, and monitor                       and designation of critical habitat could             prohibitions of section 9(a)(1) of the
                                                  potential impacts of human activities.                  result from this final listing. Given its             ESA would apply. These include
                                                  GoMMAPPS is likely to provide                           narrow range in the De Soto Canyon                    prohibitions against the import, export,
                                                  significantly improved information on                   region of the northeastern Gulf of                    use in foreign commerce, or ‘‘take’’ of
                                                  the status of protected species in the                  Mexico, and existing threats, a regional              the species. ‘‘Take’’ is defined under the
                                                  Gulf of Mexico, possibly including                      cooperative effort to protect and restore             ESA as ‘‘to harass, harm, pursue, hunt,
                                                  GOMx Bryde’s whales, and we                             the population is necessary. Federal,                 shoot, wound, kill, trap, capture, or
                                                  anticipate that this information can be                 state, and the private sectors will need              collect, or attempt to engage in any such
                                                  used to protect Bryde’s whales more                     to cooperate to conserve listed GOMx                  conduct.’’ These prohibitions apply to
                                                  effectively in the future. However, these               Bryde’s whales and the ecosystem upon                 all persons subject to the jurisdiction of
                                                  conservation benefits will require                      which they depend.                                    the United States, including in the
                                                  secondary actions that are not currently                                                                      United States or on the high seas.
                                                  known. Therefore, we conclude that the                  Marine Mammal Protection Act
                                                  conservation benefits from GOMAPPS                         The MMPA provides protections to all               Critical Habitat
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                                                  to Bryde’s whales are too diffuse and                   marine mammals, such as Bryde’s                          Critical habitat is defined in section 3
                                                  uncertain to be considered effective                    whales, whether they are listed under                 of the ESA (16 U.S.C. 1532(5)) as: (1)
                                                  measures under our PECE policy. After                   the ESA or not. In addition, the MMPA                 The specific areas within the
                                                  taking into account these conservation                  provides heightened protections to                    geographical area occupied by a species,
                                                  efforts and the current status of GOMx                  marine mammals designated as                          at the time it is listed in accordance
                                                  Bryde’s whale, our evaluation of the                    ‘‘depleted.’’ Section 3(1) of the MMPA                with the ESA, on which are found those
                                                  section 4(a)(1) factors is that the                     defines ‘‘depleted’’ as ‘‘any case in                 physical or biological features (a)
                                                  conservation efforts identified cannot be               which’’: (1) The Secretary ‘‘determines               essential to the conservation of the


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                                                                       Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules                                           88655

                                                  species and (b) that may require special                for public disclosure of peer review                  development of offspring; and (5)
                                                  management considerations or                            planning, and opportunities for public                habitats that are protected from natural
                                                  protection; and (2) specific areas outside              participation. The OMB Bulletin,                      or human disturbance or are
                                                  the geographical area occupied by a                     implemented under the Information                     representative of the historical,
                                                  species at the time it is listed upon a                 Quality Act (Pub. L. 106–554) is                      geographical, and ecological
                                                  determination that such areas are                       intended to enhance the quality and                   distributions of the species (50 CFR
                                                  essential for the conservation of the                   credibility of the Federal government’s               424.12(b)). ESA implementing
                                                  species. ‘‘Conservation’’ means the use                 scientific information, and applies to                regulations at 50 CFR 424.12(h) specify
                                                  of all methods and procedures needed                    influential or highly influential                     that critical habitat shall not be
                                                  to bring the species to the point at                    scientific information disseminated on                designated within foreign countries or
                                                  which listing under the ESA is no                       or after June 16, 2005. To satisfy our                in other areas outside of U.S.
                                                  longer necessary. Critical habitat may                  requirements under the OMB Bulletin,                  jurisdiction. Therefore, we request
                                                  also include areas unoccupied by GOMx                   we received peer reviews from three                   information only on potential areas of
                                                  Bryde’s whale if those areas are                        independent peer reviewers on the                     critical habitat within U.S. jurisdiction.
                                                  essential to the conservation of the                    Status Review report (Rosel et al., 2016).            For features and areas potentially
                                                  species.                                                All peer reviewer comments were                       qualifying as critical habitat, we also
                                                     Section 4(a)(3)(A) of the ESA (16                    addressed prior to dissemination of the               request information describing: (1)
                                                  U.S.C. 1533(a)(3)(A)) requires that, to                 final Status Review report and                        Activities or other threats to the
                                                  the maximum extent prudent and                          publication of this final rule. We                    essential features or activities that could
                                                  determinable, critical habitat be                       conclude that these experts’ reviews                  be affected by designating them as
                                                  designated concurrently with the listing                satisfy the requirements for ‘‘adequate               critical habitat, and (2) the positive and
                                                  of a species. Pursuant to 50 CFR                        [prior] peer review’’ contained in the                negative economic, national security
                                                  424.12(a), designation of critical habitat              Bulletin (sec. II.2.).                                and other relevant impacts, including
                                                  is not determinable when one or both of                                                                       benefits to the recovery of the species,
                                                  the following situations exist: (i) Data                Public Comments Solicited
                                                                                                                                                                likely to result if these areas are
                                                  sufficient to perform required analyses                    We intend that any final action                    designated as critical habitat.
                                                  are lacking; or (ii) The biological needs               resulting from this proposal will be as
                                                  of the species are not sufficiently well                accurate as possible and informed by                  Public Hearing
                                                  known to identify any area that meets                   the best available scientific and                        During the public hearing, a brief
                                                  the definition of ‘‘critical habitat.’’                 commercial information. Therefore, we                 opening presentation on the proposed
                                                  Although we have gathered information                   request comments or information from                  rule will be provided before accepting
                                                  through the Status Review report and                    the public, other concerned                           public testimony. Written comments
                                                  public comment periods on the habitat                   governmental agencies, the scientific                 may be submitted at the hearing or via
                                                  occupied by this species, we currently                  community, industry, or any other                     the Federal e-Rulemaking Portal (see
                                                  do not have enough information to                       interested party concerning this                      ADDRESSES) until the scheduled close of
                                                  determine what physical and biological                  proposed rule. In particular we seeks                 the comment period on (January 30,
                                                  feature(s) within that habitat facilitate               comments containing: (1) Information,                 2017). In the event that attendance at
                                                  the species’ life history strategy and are              including genetic analyses, regarding                 the public hearing is large, the time
                                                  thus essential to the conservation of                   the classification of the GOMx Bryde’s                allotted for oral statements may be
                                                  GOMx Bryde’s whale, and may require                     whale as a subspecies; (2) life history               limited. There are no limits on the
                                                  special management considerations or                    information including abundance,                      length of written comments submitted
                                                  protection. To the maximum extent                       distribution, diving, and foraging                    to us. Oral and written statements
                                                  prudent and determinable, we will                       patterns; (3) information concerning                  receive equal consideration.
                                                  publish a proposed designation of                       threats to the species; (4) efforts being
                                                  critical habitat for GOMx Bryde’s whale                 made to protect the species throughout                Public Hearing Schedule
                                                  in a separate rule. Designations of                     its current range; and (5) other pertinent              The date and location for the public
                                                  critical habitat must be based on the                   information regarding the species.                    hearing is as follows: St. Petersburg,
                                                  best scientific data available and must                    We are also soliciting information on              Florida: January 19, 2017, from 6:00
                                                  take into consideration the economic,                   physical or biological features and areas             p.m. to 8:00 p.m. at NOAA Fisheries,
                                                  national security, and other relevant                   that may support designation of critical              Southeast Regional Office, Dolphin
                                                  impacts of specifying any particular area               habitat for the GOMx Bryde’s whale.                   Conference Room, 236 13th Avenue,
                                                  as critical habitat. Once critical habitat              Information provided should identify                  South, St. Petersburg, Florida 33701.
                                                  is designated, section 7 of the ESA                     the physical and biological features
                                                  requires Federal agencies to ensure that                essential to the conservation of the                  Special Accommodations
                                                  they do not fund, authorize, or carry out               species and areas that contain these                    This hearing is physically accessible
                                                  any actions that are likely to destroy or               features. Areas outside the occupied                  to people with disabilities. Requests for
                                                  adversely modify that habitat. This                     geographical area should also be                      sign language interpretation or other
                                                  requirement is in addition to the section               identified if such areas themselves are               accommodations should be directed to
                                                  7 requirement that Federal agencies                     essential to the conservation of the                  Calusa Horn (see ADDRESSES) as soon as
                                                  ensure that their actions do not                        species. Essential features may include,              possible, but no later than 7 business
                                                                                                          but are not limited to, features specific
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                                                  jeopardize the continued existence of                                                                         days prior to the hearing date.
                                                  listed species.                                         to the species’ range, habitat, and life
                                                                                                          history characteristics within the                    References
                                                  Policies on Peer Review                                 following general categories of habitat                 A complete list of the references used
                                                    In December 2004, the Office of                       features: (1) Space for individual growth             in this proposed rule is available upon
                                                  Management and Budget (OMB) issued                      and normal behaviour; (2) food, or other              request, and also available at: http://
                                                  a Final Information Quality Bulletin for                nutritional or physiological                          sero.nmfs.noaa.gov/protected_
                                                  Peer Review establishing minimum peer                   requirements; (3) protection from                     resources/listing_petitions/species_esa_
                                                  review standards, a transparent process                 predation; (4) sites for reproduction and             consideration/index.html.


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                                                  88656                Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Proposed Rules

                                                  Classifications                                         listing process. In addition, this final                  Dated: December 2, 2016.
                                                                                                          rule is exempt from review under                        Samuel D. Rauch, III,
                                                  National Environmental Policy Act
                                                                                                          Executive Order 12866. This final rule                  Deputy Assistant Administrator for
                                                    The 1982 amendments to the ESA, in                    does not contain a collection-of-                       Regulatory Programs, National Marine
                                                  section 4(b)(1)(A), restrict the                        information requirement for the                         Fisheries Service.
                                                  information that may be considered                      purposes of the Paperwork Reduction                       For the reasons set out in the
                                                  when assessing species for listing. Based               Act.                                                    preamble, we propose to amend 50 CFR
                                                  on this limitation of criteria for a listing                                                                    part 224 as follows:
                                                  decision and the opinion in Pacific                     Executive Order 13132, Federalism
                                                  Legal Foundation v. Andrus, 675 F. 2d                                                                           PART 224—ENDANGERED MARINE
                                                  825 (6th Cir. 1981), NMFS has                              In keeping with the intent of the                    AND ANADROMOUS SPECIES
                                                  concluded that ESA listing actions are                  Administration and Congress to provide
                                                  not subject to the environmental                        continuing and meaningful dialogue on                   ■ 1. The authority citation for part 224
                                                  assessment requirements of the NEPA                     issues of mutual state and Federal                      continues to read as follows:
                                                  (See NOAA Administrative Order 216–                     interest, the proposed rule will be                       Authority: 16 U.S.C. 1531–1543 and 16
                                                  6A).                                                    provided to the relevant agencies in                    U.S.C. 1361 et seq.
                                                                                                          each state in which the subject species                 ■ 2. In § 224.101, in the table in
                                                  Executive Order 12866, Regulatory                       occurs, and these agencies are invited to
                                                  Flexibility Act and Paperwork                                                                                   paragraph (h), add an entry for ‘‘Whale,
                                                                                                          comment.                                                Bryde’s (Gulf of Mexico subspecies)’’
                                                  Reduction Act
                                                                                                          List of Subjects in 50 CFR Part 224                     under MARINE MAMMALS in
                                                    As noted in the Conference Report on                                                                          alphabetical order by common name to
                                                  the 1982 amendments to the ESA,                           Administrative practice and                           read as follows:
                                                  economic impacts cannot be considered                   procedure, Endangered and threatened
                                                  when assessing the status of a species.                                                                         § 224.101 Enumeration of endangered
                                                                                                          species, Exports, Imports, Reporting and
                                                  Therefore, the economic analysis                                                                                marine and anadromous species.
                                                                                                          record keeping requirements,
                                                  requirements of the Regulatory                          Transportation.                                         *       *    *        *      *
                                                  Flexibility Act are not applicable to the                                                                           (h) * * *

                                                                                           Species 1
                                                                                                                                                     Citation(s) for listing       Critical habitat     ESA rules
                                                                                                                     Description of listed             determination(s)
                                                        Common name                     Scientific name                     entity



                                                            *                       *                       *                      *                        *                       *                       *

                                                                                                                            Marine mammals



                                                          *                        *                 *                           *                          *                   *                           *
                                                  Whale, Bryde’s (Gulf of        Balaenoptera edeni               Bryde’s whales that              [Federal Register cita-     NA ..................   NA
                                                   Mexico subspecies).             (unnamed subspecies).            breed and feed in the            tion and date when
                                                                                                                    Gulf of Mexico.                  published as a final
                                                                                                                                                     rule].

                                                            *                       *                       *                      *                        *                       *                       *
                                                     1 Speciesincludes 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. 2016–29412 Filed 12–7–16; 8:45 am]
                                                  BILLING CODE 3510–22–P
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Document Created: 2016-12-08 00:26:50
Document Modified: 2016-12-08 00:26:50
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule, request for comments.
DatesInformation and comments on the subject action must be received by January 30, 2017. For the specific date of the public hearing, see Public Hearing section.
ContactLaura Engleby or Calusa Horn, NMFS, Southeast Regional Office (727) 824-5312 or Marta Nammack, NMFS, Office of Protected Resources (301) 427-8469.
FR Citation81 FR 88639 
RIN Number0648-XD66
CFR AssociatedAdministrative Practice and Procedure; Endangered and Threatened Species; Exports; Imports; Reporting and Record Keeping Requirements and Transportation

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