Federal Register Vol. 81, No.181,

I. Public Participation

SBA invites comments, data, and information from all interested parties, including but not limited to investors, small businesses, advocacy groups, nongovernmental organizations, and legal representatives with relevant expertise on any and all aspects of this proposed rule. Comments that will provide the most assistance to SBA in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authorities that support such recommended change. SBA is generally seeking comments on:

A. Proposed licensing requirements for Early Stage SBICs;

B. Proposed evaluation of Early Stage SBICs by SBA;

C. Proposed treatment of third-party debt of Early Stage SBICs;

D. Proposed maximum amount of leverage for Early Stage SBICs, both individually and annually in aggregate;

E. Constraints of equity versus debenture financing as articulated in the proposed rule;

F. Treatment of interest reserve, capital impairment, and cost of money in the proposed rule;

G. Alternative financing terms compared with those in the proposed rule, such as discounted debentures and longer-maturity debentures;

H. Access by non-leveraged SBICs to Early Stage SBIC leverage under the proposed rule;

I. Alignment of the proposed rule with early stage investment strategies, including the relatively long time horizons of early-stage investors in capital-intensive technologies; and

J. Other suggested changes that SBA has not included in this proposal.

SBA also invites comments on the economic and financial analyses supporting this rule.

In the Small Business Investment Act of 1958 (Act), Congress created the Small Business Investment Company (SBIC) program to “stimulate and supplement the flow of private equity capital and long-term loan funds which small-business concerns need for the sound financing of their business operations and for their growth, expansion, and modernization, and which are not available in adequate supply . . . .” 15 U.S.C. 661. Congress intended that the program “be carried out in such manner as to insure the maximum participation of private financing sources.” Id. In accordance with that policy, the U.S. Small Business Administration (SBA) does not invest directly in small businesses. Rather, through the SBIC program, SBA licenses and provides debenture leverage to SBICs. SBICs are privately-owned and professionally managed for-profit investment funds that make loans to, and investments in, qualified small businesses using a combination of privately raised capital and debenture leverage guaranteed by SBA. SBA will guarantee the repayment of debentures issued by an SBIC (Debentures) based on the amount of qualifying private capital raised by an SBIC up to a maximum amount of $150 million.

The standard Debenture requires semi-annual interest payments. Consequently, most SBICs finance later stage small businesses with positive operating cash flow, and most structure their investments as loans or mezzanine debt in an amount that is at least sufficient to cover the SBIC's Debenture interest payments. Early stage companies typically do not have positive operating cash flow and therefore cannot make current interest or dividend payments. As a result, investments in early stage companies do not fit naturally with the structure of debenture leverage.

Early stage businesses without the necessary assets or cash flow for traditional bank funding face difficult challenges accessing capital. As a result of this capital gap, and as part of President Obama's Startup America Initiative, on April 27, 2012, SBA published a final rule (77 FR 25042) to define a new sub-category of SBICs. SBA's intent was to license over a 5-year period (fiscal years 2012 through 2016) venture funds focused on early stage businesses. Because Early Stage SBICs present a higher credit risk than traditional SBICs, that rule authorized SBA to guarantee Debentures only in an amount equal to each Early Stage SBIC's Regulatory Capital (consisting of paid-in capital contributions from private investors plus binding capital commitments from Institutional Investors, as defined in existing § 107.50), up to a maximum guarantee amount of $50 million. SBA allocated $200 million per year ($1 billion total) of its SBIC Debenture authorization over these years to this effort.

Since 2012, SBA has received 62 applications to the Early Stage SBIC program, but licensed only five Early Stage SBICs. Those applicants that were not licensed failed to meet SBA's licensing criteria. Many of these applicants had management teams with limited track records and few positive realizations. In order to determine the market need for SBA to continue licensing Early Stage SBICs past fiscal year 2016, SBA sought input from the public through an Advance Notice of Proposed Rule Making (ANPRM) on March 18, 2015 (80 FR 14034). In the ANPRM, SBA also sought input regarding what changes should be made to the program to attract qualified early stage fund managers.

Comments on the ANPRM and additional discussions SBA held with industry participants indicated that the program should be continued because funding gaps, especially in certain geographic areas and industries, continue to pose challenges for early stage businesses. Based on SBA's analysis of the financing data available on the PricewaterhouseCoopers' Moneytree Web site (www.pwcmoneytree.com), although the venture capital industry provided over $81 billion in financings to U.S. businesses between January 2014 and June 2015, less than a third went to early stage or start-up businesses. Additionally, venture capital financings were geographically focused, with over three quarters of venture capital dollars going to three states: California, New York, and Massachusetts.

In comparison, based on financing data Early Stage SBICs reported in SBA Form 1031 (Portfolio Financing Report), Early Stage SBICs reported that over 69% of their financing dollars through September 2015 were invested in states other than California, New York, or Massachusetts. Also, Early Stage SBICs reported that investments they have made in early stage small businesses have resulted in net job growth. SBA compared job data submitted by the existing Early Stage SBICs on SBA Form 1031 at the time of first financing to that submitted on SBA Form 468 (Annual Financial Report) for the reporting period as of December 31, 2014. This data indicated that Early Stage SBIC portfolio companies increased job growth on a net basis by 48% from the date of initial Early Stage SBIC investment through the reporting period.

SBA received suggestions for program improvement both through the ANPRM and discussions with industry. This proposed rule incorporates some of those suggested changes.

The proposed rule would remove § 107.310 in its entirety. The current regulation sets forth two restrictions specific to the licensing of Early Stage SBICs. First, Early Stage SBIC applications may be submitted only during a limited timeframe identified in a Notice published in the Federal Register (which SBA has published on an annual basis since 2012). This restriction was put in place to enable SBA to manage the flow of applicants and properly allocate the $200 million annual Early Stage leverage among all successful applicants. Since the demand for Early Stage licenses from qualified fund managers has been well below capacity, the proposed rule would allow Early Stage applicants to apply at any time, similar to other SBIC applicants. SBA believes that if the demand for Early Stage licenses increases to such an extent that SBA becomes concerned about leverage availability, SBA will be able to manage the flow of applicants and leverage issued through § 107.320, an existing regulation that gives SBA the right to maintain diversification of Early Stage SBICs with respect to the year in which Early Stage SBICs commence operations.

The second restriction set forth in current § 107.310 states that SBA will not consider an application from an applicant under Common Control with an existing Early Stage SBIC that has outstanding Debentures or Debenture commitments. This requirement was put in place to promote fund manager diversification and because the short term duration of the original initiative would not have given existing Early Stage SBICs time to realize investments sufficiently to qualify for a subsequent fund. Since the proposed rule would make the initiative an ongoing part of the SBIC program, SBA is proposing to remove this restriction. SBA would review requests for subsequent Early Stage licenses similar to other SBIC subsequent license requests, by considering such factors as the existing SBIC's investment cycle, operating and regulatory history of the existing SBIC, anticipated co-investment between the proposed and existing SBIC, realizations since the existing SBIC was licensed, forecasted realizations and repayment of leverage, and consistency of management teams and limited partners between the existing SBIC and applicant.

One of SBA's strategic goals, as set forth in the FY2014-2018 Strategic Plan, is to ensure inclusive entrepreneurship by expanding access and opportunity to small businesses and entrepreneurs, including women, minorities, veterans and other entrepreneurs, in communities where market gaps remain. SBA encourages fund managers with early stage investment strategies that focus on these diverse communities to apply for licensing as an Early Stage SBIC.

Current § 107.320 gives SBA the right to maintain diversification among Early Stage SBICs with respect to: (a) The year in which they commence operations, and (b) their geographic location. The proposed rule would clarify that diversification by geographic location would be with regard to where the fund would be investing rather than where the fund is located. Although SBA believes that Early Stage investors typically invest close to where they are located since they are often actively involved with their portfolio companies, this proposed change would clarify SBA's original intent.

Although current regulations allow standard SBICs to incur unsecured third party debt without SBA approval, current § 107.565 requires Early Stage SBICs to obtain prior SBA approval in order to have, incur or refinance any third party debt, whether secured or unsecured. This restriction was created because of the high risk profile of Early Stage SBICs. Even debt that is unsecured increases SBA's credit risk because SBA leverage is never senior to the claims of other unsecured creditors: Under § 107.560, the first $10 million of SBA leverage is generally subordinated to other unsecured debt of an SBIC, and leverage above $10 million is pari passu with other unsecured debt. Nonetheless, SBA recognizes that it is typical practice for investment funds, including those pursuing venture capital strategies, to use a line of credit to help bridge capital needs for financings—investment funds use lines of credit to fund financings and operations between capital calls, and can generally draw on a line of credit more quickly than investors pay in capital when called. To provide Early Stage SBICs access to this industry-standard tool while minimizing the credit risk to SBA, this proposed rule would allow current and future Early Stage SBICs to obtain an unsecured line of credit without SBA approval under the following conditions:

(1) The line of credit is limited to the lesser of 20% of Regulatory Capital or total unfunded binding commitments from Institutional Investors minus any such commitments included in the Interest Reserve under § 107.1181. Since the line of credit will be used to bridge private capital calls to enable an Early Stage SBIC to finance a small business, SBA believes that the line of credit should not exceed the maximum amount that may be invested into a single portfolio company. Existing § 107.740 calculates the maximum amount an SBIC may invest in a single portfolio company based on certain changes to an SBIC's Regulatory Capital, but this amount is generally 20% of Regulatory Capital. For simplicity, the proposed rule would set the borrowing limit to be no greater than 20% of Regulatory Capital as determined by the Capital Certificates submitted from time to time by the SBIC. Additionally, the line of credit should be no greater than the amount of capital available for call from investors. Early Stage SBICs use unfunded binding commitments from investors for three primary purposes: (1) To call capital to finance small businesses, (2) to call capital to fund operations, and (3) to fund the Interest Reserve required under § 107.1181. Since Early Stage SBICs cannot call unfunded commitments associated with the Interest Reserve (unless they are using that capital to pay interest on SBA-guaranteed leverage or SBA annual charges), the line of credit should be no greater than unfunded binding commitments from Institutional Investors minus any commitments associated with the Interest Reserve.

(2) The term of the line of credit does not exceed 24 months. Based on feedback from industry, SBA understands that most lines of credit are renewed on an annual basis. In this rule, SBA is proposing a 24 month limitation on the duration of the line of credit, which SBA believes should be sufficiently long so as to not impact the standard maturity dates in typical line of credit documentation. An Early Stage SBIC may renew the line of credit during its lifecycle as long as each renewal is no longer than 24 months and the Early Stage SBIC is in compliance with the requirements of this section.

(3) The line of credit is held by a federally regulated financial institution. SBA proposes this requirement, that the lender be regulated by a federal financial institutions regulator (e.g., the FDIC, OCC, or NCUA) to ensure that the lender is creditworthy, that the credit terms are reasonable and customary, and that the lender will not seek unusual remedies in the event of a default.

(4) All borrowings under the line of credit: (i) Are not secured third-party debt, as that term is defined under § 107.550(a); (ii) Are for the purpose of maintaining the Early Stage SBIC's operating liquidity or providing funds for a particular Financing of a Small Business; (iii) Must be fully repaid within 90 days after the date they are drawn; and (iv) Must be fully paid off for at least 30 consecutive days during the Early Stage SBIC's fiscal year. SBA proposes these requirements to ensure that such debt is unsecured, since secured third party debt presents a higher credit risk to SBA and must be approved by SBA under § 107.550. Further, the third party debt must be solely for the purpose of maintaining the SBIC's operating liquidity or providing funds for a particular financing of a small business. Finally, since such borrowings are temporary in nature, the line of credit should be repaid quickly and not continuously refinanced. SBA believes these requirements are typical for a line of credit and would provide Early Stage SBICs with access to a standard industry tool while minimizing SBA's credit risk.

Current § 107.1150(c) limits Early Stage SBICs to SBA-guaranteed leverage and leverage commitments of 100 percent of Regulatory Capital or $50 million, whichever is less. Originally, the $50 million maximum was set in order to provide increased diversity to the Early Stage SBIC portfolio. Comments to the Early Stage ANPRM indicated that a higher maximum would be more attractive to experienced early stage fund managers and suggested either $75 million or $100 million as a maximum leverage ceiling. Given that SBA's goal is still to keep the overall amount of Early Stage leverage to $200 million in any given year, SBA believes that $75 million is responsive to the feedback SBA has received and is a more appropriate amount than $100 million to help achieve diversification within the Early Stage program. This proposed maximum would be available to future Early Stage SBICs as well as existing Early Stage SBICs.

The proposed rule would change the references to $50 million in both § 107.1150(c)(1) and § 107.1150(c)(3)(iii) to $75 million to reflect the increase in SBA-guaranteed leverage.

It should be noted that SBA's approval of leverage commitments to, and draws by, Early Stage SBIC applicants would remain subject to SBA credit policies and SBA's overall SBIC Debenture leverage authorization. Also, as discussed above, under existing § 107.320, SBA will also continue to maintain the right to require diversification among Early Stage SBICs by year and geography as part of the evaluation of Early Stage SBICs in the licensing process.

The Office of Management and Budget has determined that this rule is a “significant” regulatory action under Executive Order 12866. The Regulatory Impact Analysis is set forth below.

As discussed above, early stage financing gaps remain, and SBA's Early Stage SBICs are financing these gaps and creating jobs. This proposed rule reflects SBA's intention to continue licensing and providing SBA-guaranteed leverage to Early Stage SBICs, and implements changes to improve the program and attract more qualified fund managers to continue to finance those gaps. Based on industry feedback, SBA believes that minor changes could improve the program without increasing credit risk to SBA. For example, removing the call process and accepting Early Stage SBIC applications on a rolling basis would allow fund managers to organize funds on their own timeline and allow fund managers to apply in a manner more conducive to their fundraising process. In addition, increasing the maximum leverage to $75 million would be more attractive to qualified managers that are able to raise higher amounts of capital and are seeking more capital to round out their fundraising. At the same time, maintaining a maximum one to one ratio of leverage to private capital would permit this increase to maximum leverage without increasing the risk to SBA. Moreover, allowing fund managers of existing Early Stage SBICs to apply for a subsequent license would help successful fund managers continue to fund early stage small businesses. Finally, allowing Early Stage SBICs to access a line of credit, similar to other venture funds and standard SBICs, would streamline Early Stage SBIC cash management and operations.

SBA considered making no changes to the Early Stage regulations and not issuing any further calls for Early Stage SBICs. However, based on industry feedback received through the ANPRM process, which is supported by industry statistics, gaps in the market place still remain for early stage financings. Because Early Stage SBICs are financing that gap and creating jobs, SBA decided to make the Early Stage program an ongoing part of the SBIC program and propose as part of this rule those changes suggested by industry that would not increase risk but would help to improve the program.

As part of the ANPRM process and discussions with industry, SBA received several suggested changes that the Agency either could not implement or chose not to implement primarily due to cost and risk. These include the following:

• Implementing a true equity program. Although SBA agrees that an early stage investment strategy would be more ideally funded with equity capital than the currently structured Debenture, SBA is not authorized by the Act to take equity positions in SBICs or make direct equity investments in small businesses. SBA has tried to provide for a leverage structure that balances risk/cost and usability by venture investors.

• Lowering or removing the Interest Reserve. Early Stage SBICs currently have access to a Debenture that requires quarterly interest payments throughout its term. Current § 107.1181 requires that for each Debenture that requires periodic interest payments to SBA during the first five years of its term, an Early Stage SBIC must maintain a reserve (consisting of either unfunded commitments from Institutional Investors or restricted cash in a segregated account) sufficient to pay the interest and annual charge on such Debenture for the first 21 payment dates following the date of issuance. SBA modeled both lowering the number of years required for the Interest Reserve and removing the Interest Reserve completely to identify the impact to the annual charge. The annual charge is an amount that SBA formulates each year and is paid by SBICs with outstanding leverage to offset projected SBIC Debenture losses and keep the Debenture program at zero subsidy cost. The Interest Reserve decreases SBA's credit risk for Early Stage SBICs; therefore, making the proposed changes to the Interest Reserve would have required all SBICs to pay a higher annual charge. SBA received input on these impacts from three of its five Early Stage SBICs, all of which preferred a lower annual charge rather than changes to the Interest Reserve. SBA therefore decided not to pursue this option.

• Implementing an accruing Debenture with longer maturity. In addition to the Debenture discussed above, Early Stage SBICs have access to a Debenture that is issued at a discount and does not require interest payments during the first five years of its term. In response to industry suggestions to modify the Debenture to align better with early stage cash flows, SBA considered creating a Debenture that would not be issued at a discount and would not require interest payments over a 10 or even 15 year period, but would accrue interest that would be payable at maturity. Evaluation of this instrument must take into account the fact that SBA's guarantee includes both the leverage principal and accrued interest. Using such a non-discounted accruing Debenture, if an Early Stage SBIC with $75 million in Regulatory Capital were to issue $75 million in Debentures, the $75 million in Debenture proceeds plus the accrued interest would exceed both the 1 tier of leverage maximum and $75 million maximum leverage guarantee amount for the Early Stage SBIC. If an SBIC issued Debentures at the full face amount of $75 million with interest accruing at a 5% rate and an annual charge of 1%, this would accrue in 5 years to over $100 million, in 10 years to over $134 million, and in 15 years to over $179 million. At the 15 year point, the maximum leverage guarantee would exceed the maximum leverage allowed by statute. In this scenario, the Debentures must be issued at a discount, and extending the 5-year discount to a 10 or 15 year timeframe would decrease the amount of proceeds the Early Stage SBIC would receive at time of issuance. For example, a Debenture that would accrue in five years to $1 million may provide an Early Stage SBIC with only $750,000 in proceeds, based on a 4% interest rate and a 1% annual charge. Increasing the accrual period to 10 years would reduce those proceeds to less than $600,000. At a higher interest rate, these Debenture proceeds would be reduced even further. SBA believes this would make the instrument less attractive.

• Providing more flexibility with regard to capital impairment. One of the ANPRM comments indicated that Early Stage SBICs should be provided with more flexibility in regard to capital impairment, the primary financial metric SBA uses to evaluate SBIC financial performance. Most Early Stage SBICs have a 70% maximum allowable capital impairment percentage (CIP). CIP measures the amount of operating and investment losses against an SBIC's Regulatory Capital. If an Early Stage SBIC exceeds its maximum CIP, after notifying the SBIC and giving the SBIC a cure period of at least 15 days, SBA may invoke the remedies identified in § 107.1810(g), which include, among other things, declaring the Debentures and any accrued interest immediately due and payable. SBA has decided not to modify the maximum allowable CIP for Early Stage SBICs because SBA generally experiences leverage losses with SBICs whose CIPs are in excess of 70%.

Furthermore, the existing Early Stage regulations already include adequate flexibility for Early Stage SBICs with respect to CIP. SBA previously operated a program that focused on equity investment called the Participating Securities program. That program generally allowed SBICs to have up to 85% maximum CIP in the first five years following the first issuance of leverage. In originally developing the Early Stage rule, SBA noted that SBA incurred leverage losses for most Participating Securities SBICs when the SBIC's CIP went over 85%. For the few Participating Securities SBICs that did fully repay SBA leverage, higher CIPs were often the result of the loss of “Class 2 Appreciation” on the SBIC's investments. Class 2 Appreciation, defined in § 107.1840(d)(3), relates to unrealized appreciation on securities that are non-public securities of a small business based on a new round of outside financing within the last 24 months. After 24 months, an SBIC's Class 2 Appreciation could “time out” and the SBIC would no longer receive credit for it in the CIP calculation. Current § 107.1845 allows Early Stage SBICs to request approval to extend the validity of Class 2 Appreciation beyond 24 months based on relevant information, including a third party valuation. SBA believes this provision provides sufficient flexibility for Early Stage SBICs with respect to CIP while properly limiting SBA's credit risk.

• Change cost of money rules for Early Stage SBICs. Current § 107.855 generally limits the interest an SBIC may charge a small business on Debt Securities to 14 percent and Loans to 19 percent. SBA received comments that Early Stage SBICs should be allowed greater flexibility with cost of money provisions. SBA does not believe that such changes would significantly help Early Stage SBICs, which are primarily making equity investments that are not subject to the cost of money limitations.

• Non-leveraged SBIC access to Early Stage leverage. SBA received comments in response to the ANPRM stating that SBA should allow non-leveraged SBICs that have an early stage strategy to access Early Stage leverage. In the licensing process for non-leveraged applicants, SBA does not perform the same level of financial review that it does for applicants that intend to use leverage. A request of this type would require SBA to undertake a substantive review of the non-leveraged SBIC's qualifications that would, in many ways, be equivalent to a new license application. Moreover, nothing in SBA's regulations prevents a non-leveraged SBIC with an early stage focus from applying for the Early Stage SBIC program if that SBIC wishes to access Early Stage leverage. Therefore, SBA does not propose to implement this suggestion.

• Increase the maximum leverage to $100 million. Although SBA received comments that indicated the maximum leverage for Early Stage SBICs should be increased to $100 million, SBA was concerned that, based on its expected $200 million annual allocation of Early Stage leverage, this could concentrate the limited Early Stage allocation to only two funds per year. SBA therefore chose to propose a maximum leverage ceiling of only $75 million per year. SBA also considered only approving a higher maximum for new Early Stage SBIC applicants, but believes that existing Early Stage SBICs should be able to benefit from this increase.

The proposed rule reflects SBA's intent to continue licensing and providing SBA-guaranteed leverage to Early Stage SBICs, and would make material improvements to the program. Even though currently licensed Early Stage SBICs are eligible for almost $220 million in commitments, Early Stage SBICs have requested and been approved for less than $113 million in leverage commitments and have issued less than $44 million in Debentures through September 2015. Most venture funds have a 5-year investment period with follow-on financings in later years, so it is not unusual that these funds have not applied for or drawn all available leverage. SBA expects Early Stage SBICs to draw additional capital and leverage over a 5 to 7 year period to support financings and operational expenses, commensurate with this investment cycle. Despite the relatively small amount of leverage drawn, Early Stage SBICs have made over $94 million in financings to 46 small businesses through September 2015, with over half of the financing dollars reported in FY 2015. Since most Early Stage SBICs did not start reporting financings until 2014, and venture funds typically have a 5 year investment period, SBA expects funds to continue to make $50 to $75 million in financings per year for the next 2 to 3 years and then decline, unless new Early Stage SBICs are licensed.

As previously noted, the Early Stage program finances geographic funding gaps and creates jobs. Over 69% of Early Stage SBIC financing dollars went to states not in the traditional geographic hubs for venture capital financing. In addition, Early Stage SBIC financial reports filed with SBA for Early Stage SBICs' fiscal year 2014 showed a net gain in jobs of 48% in the small businesses Early Stage SBICs had invested in during 2014.

In terms of cost, since fiscal year 2012, the SBIC Debenture subsidy formulation model has taken into account Early Stage SBICs. Early Stage SBICs have a higher expected loss rate than standard SBICs, so the more leverage SBA allocates to Early Stage SBICs results in a proportionally higher annual charge. As noted in the April 27, 2012 final rule that established Early Stage SBICs (77 FR 25042), SBA allocated $150 million in leverage commitments (i.e., 7% of SBA's total leverage authorization) to Early Stage SBICs for FY 2012. This allocation increased the FY 2012 annual charge for all SBICs by 13.7 basis points. For FY 2017, based on current demand, SBA has budgeted $100 million in Early Stage commitments (i.e., 4% of SBA's total leverage authorization). SBA expects this allocation to increase the annual charge paid by all SBICs by less than 7 basis points, which is smaller than the increase to the annual charge related to the $200 million allocation for each of FYs 2012-2016. After FY 2017, SBA expects to allocate no more than approximately $200 million in leverage commitments to Early Stage SBICs in any year, which would keep the increase in cost related to the Early Stage program to no more than approximately 14 basis points. Depending on demand, Early Stage SBIC performance, and other factors, SBA may modify this targeted allocation. SBA believes that none of the changes proposed in this rule would alter the risk profile of the Early Stage SBICs or increase the annual charge paid by SBICs. The program will remain a zero subsidy program.

This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or presumptive effect.

The rule will not have substantial direct effects on the States, or the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, Federalism, SBA determines that this proposed rule has no federalism implications warranting the preparation of a federalism assessment.

This proposed rule was developed based on comments received on the ANPRM SBA issued in March 2015 (80 FR 14034) and several discussions with Early Stage participants and others in the industry. SBA issued the ANPRM to solicit comments and ideas on the Early Stage SBIC program and considered each comment it received. The proposed changes are a result of those comments.

SBA has determined that this rule proposes no additional reporting or recordkeeping requirements as defined by the Paperwork Reduction Act.

When an agency promulgates a rule, the Regulatory Flexibility Act requires the agency to prepare an initial regulatory flexibility analysis (IRFA), which describes the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the existing five Early Stage SBICs, as well as all potential applicants, all of which are small entities. Although SBA is seeking to expand the number of participants, because of the limited amount of available leverage, even with future growth, the number of affected small entities will still be relatively low. SBA has determined that the impact on entities affected by the rule will not be significant. Because SBA's subsidy model already takes into account Early Stage SBICs and the proposed rule does not impact the current annual fee needed to keep the Debenture program at a zero subsidy cost, no cost impacts are expected.

For the reasons stated in the preamble, SBA proposes to amend part 107 of title 13 of the Code of Federal Regulations as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9109; Directorate Identifier 2016-NM-011-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On October 31, 2013, we issued AD 2013-23-02, Amendment 39-17657 (78 FR 68688, November 15, 2013) (“AD 2013-23-02”). AD 2013-23-02 requires actions intended to address an unsafe condition on all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes.

Since we issued AD 2013-23-02, we have determined that a modification of the fuel booster pump is necessary to address the identified unsafe condition.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0014, dated January 14, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, CN-235-300, and C-295 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9109.

EADS CASA has issued Airbus Defense and Space Service Bulletin SB-235-28-0023C, Revision 01, dated October 27, 2015. The service information describes procedures for modification of the fuel booster pumps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

Paragraph (3) of the MCAI specifies a modification for all airplanes. However, the MCAI only specifies service information for Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. We have determined that this modification only applies to Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. Therefore, in paragraph (i) of this proposed AD we have identified Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes.

We estimate that this proposed AD affects 35 airplanes of U.S. registry.

The actions required by AD 2013-23-02, and retained in this proposed AD take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013-23-02 is $340 per product.

We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,802 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $86,870, or $2,482 per product.

In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $16,080, for a cost of $16,335 per product. We have no way of determining the number of aircraft that might need this action.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9110; Directorate Identifier 2015-NM-196-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0234, dated December 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A319-115, A319-132, A320-214, A320-232, A321-211, A321-213, and A321-231 airplanes. The MCAI states:

Airbus has issued Service Bulletin A320-52-1167, dated August 6, 2015. The service information describes procedures for a detailed inspection for the presence of cadmium plating on tie rod assemblies having certain part numbers, and procedures for replacement of tie rod assemblies with no cadmium plating on the rod end threads. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We estimate that this proposed AD affects 20 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these replacements:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA sets forth this designation pursuant to title 49 of the United States Code (49 U.S.C.) section 40123 and title 14, Code of Federal Regulations (14 CFR), part 193.

On August 17, 2006, the Federal Aviation Administration (FAA) issued FAA Order 8000.89, Designation of Voluntary Disclosure Reporting Program (VDRP) Information as Protected from Public Disclosure under part 193. The FAA published the Notice of Order in the Federal Register. 71 FR 54405 (Sept. 15, 2006).

This Proposed Order Designating Information as Protected from Disclosure will retain the current protection provided for disclosures under FAA Order 8000.89 while also designating disclosures to the agency by entities as provided in Advisory Circular (AC) 00-68 as protected from public disclosure in accordance with the provisions of part 193. The comment period for the contents of AC 00-68 opened on June 12, 2015 and closed on August 7, 2015.

Under 49 U.S.C. 40123, certain voluntarily provided safety and security information is protected from disclosure to encourage persons to provide the information to the FAA. The FAA must issue an order making certain findings before the information is protected from disclosure. The FAA's rules implementing that section are in part 193. If the Administrator issues an order designating information as protected under 49 U.S.C. 40123, that information will not be disclosed under the Freedom of Information Act (5 U.S.C. 552) or other laws except as provided in 49 U.S.C. 40123, 14 CFR part 193, and the order designating the information as protected. This proposed order is issued under § 193.11, which sets out the notice procedure for designating information as protected.

A. Who may participate: Regulated entities as provided in AC 00-58, as amended, AC 00-68, and AC 121-37.

B. What voluntarily provided information would be protected from disclosure under this proposed designation: The content of all submissions by a regulated entity that are accepted under the VDRP, including, but not limited to, all of the items listed under Proposed Findings, Paragraph IV D(2) below.

C. How persons would participate: Regulated entities participate by notification of an apparent violation to the FAA by the regulated entity in accordance with the VDRP reporting procedures, and completion of corrective actions in accordance with AC 00-58, as amended, AC 00-68, and AC 121-37.

D. Duration of this information sharing program: This information sharing program would continue in effect indefinitely, unless the FAA terminates the VDRP, or until the order of designation under part 193 for the VDRP is withdrawn by the FAA.

The FAA proposes to designate information received under the VDRP as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following findings:

(1) Summary of why the FAA finds that the information will be provided voluntarily.

The FAA finds that the information will be provided voluntarily. No regulated entity is required to participate in the VDRP. Initiation of submissions under the VDRP are indicative of the willingness of regulated entities to identify and correct their own instances of regulatory noncompliance, develop long term comprehensive fixes or corrective action plans, and foster safe operating practices.

(2) Description of the type of information that may be voluntarily provided under the program and a summary of why the FAA finds that the information is safety or security related.

The information that would be voluntarily submitted under a VDRP is described in AC 00-58, as amended, AC 00-68, and AC 121-37. Because the Federal Aviation Regulations specify the minimum requirements for safety, and VDRP submissions entail violations of those regulations, the information is inherently safety related. It would include the following:

(a) Information contained in an initial notification to the FAA:

(b) Information contained in a detailed written report:

(c) FAA generated documentation and electronic information that is directly associated with an accepted VDRP submission, including, but not limited to:

(d) Information contained in a report submitted to the FAA under the informal voluntary disclosure reporting process described in AC 00-68, as amended, including, but not limited to:

(3) Summary of why the FAA finds that the disclosure of the information would inhibit persons from voluntarily providing that type of information.

The FAA finds that disclosure of the information would inhibit the voluntary provision of that type of information. Regulated entities are reluctant to voluntarily disclose instances of regulatory noncompliance if such submissions might be subject to public disclosure. A significant impediment to participation in the VDRP is concern over public disclosure of the information, and, if disclosed, the potential for it to be used for other than the system safety enhancement purposes for which the VDRP was created. Withholding such information from disclosure is consistent with the FAA's safety and security responsibilities because, unless the FAA can provide assurance that it will not be disclosed, regulated entities will be reluctant to participate in the program. Information received under the VDRP will be identified as such in each FAA line of business's central database used to track submissions. To encourage continued use of the VDRP, the FAA will not keep the identity of persons reporting, or detailed information about disclosures, under that program in any central database.

The FAA finds that by virtue of designating information provided under the VDRP as protected under part 193, the reluctance of regulated entities to participate due to concerns about possible disclosure of the information will be mitigated. In addition, FAA will be able to retain more information about the disclosures, including the identity of the reporters, in an FAA database, without negatively impacting participation in the VDRP. Disclosures under the VDRP enable the FAA to become aware of many more instances of regulatory noncompliance than it otherwise would and, moreover, the VDRP permits the FAA to assure that appropriate corrective action is taken. If regulated entities do not participate, the FAA and the public will be deprived of the opportunity to make the system safety improvements that receipt of the information otherwise enables.

(4) Summary of why the receipt of that type of information aids in fulfilling the FAA's safety and security responsibilities.

The FAA finds that receipt of VDRP information aids in fulfilling the FAA's safety and security responsibilities. A primary purpose of FAA regulations is to assure public safety. Because the VDRP identifies and corrects instances of regulatory noncompliance of which the FAA may be otherwise unaware, the program offers significant potential for enhancement of public safety. Receipt of this otherwise unavailable information would also provide the FAA with an improved basis for modifying procedures, policies, and regulations to improve safety and efficiency.

(5) Summary of why withholding such information from disclosure would be consistent with the FAA's safety and security responsibilities, including a statement as to the circumstances under which, and a summary of why, withholding such information from disclosure would not be consistent with the FAA's safety and security responsibilities, as described in § 193.9.

The FAA finds that withholding VDRP information provided to the FAA is consistent with the FAA's safety responsibilities. The VDRP specifically provides that appropriate corrective action must be taken by the regulated entity for all instances of regulatory noncompliance accepted under the program. To be accepted by the FAA, apparent violations disclosed under the program must be inadvertent, and, where applicable, must not indicate a lack, or reasonable question of a lack, of qualification of the regulated entity. Corrective action under the VDRP can be accomplished by the regulated entity and verified by the FAA without disclosure of the protected information. If the FAA determines that the steps taken by the entity are not those documented in the written report, the submission may be excluded from the VDRP, and appropriate legal enforcement action may be initiated.

The FAA will release information submitted under a VDRP as specified in part 193 and this proposed order. The FAA may disclose de-identified summary information to explain the need for changes in FAA policies, procedures, and regulations. The term “de-identified” means that the identity of the source of the information and the names of the regulated entity, employees, and other persons, as well as any other information that could be used to ascertain the identity of the submitter have been redacted. The FAA may disclose de-identified, summarized VDRP information that identifies a systemic problem in the aviation system, when other persons need to be advised of the problem so that they can take corrective action. The FAA may disclose de-identified aggregate statistical information concerning VDRP submissions. The FAA may disclose independently obtained information relating to any event disclosed in a VDRP report, unless the FAA determines that in the case of an accepted VDRP submission, release of such independently obtained information would be inconsistent with the provisions of this order, or would otherwise be prohibited by public law or regulation. The FAA also may disclose information concerning enforcement action taken for a regulatory violation initially identified in a VDRP submission, when that submission is not accepted by the FAA, or, if accepted, it is later excluded by the FAA because of the regulated entity's failure to comply with the criteria of the VDRP. The FAA also may disclose any information about a disclosure initially submitted under the VDRP that is not accepted, or accepted but later excluded because of the regulated entity's failure to comply with the criteria of the VDRP.

(6) Summary of how the FAA will distinguish information protected under part 193 from information the FAA receives from other sources.

In accordance with AC 00-58, as amended, AC 00-68, and AC 121-37, all VRDP submissions must be clearly identified as such by the regulated entity making the submission. Any other information received by the FAA from the regulated entity concerning the content of a VDRP submission must be clearly labeled as follows to be eligible for protection under this designation: “WARNING: The Information in this Document is Protected from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193.” If the information is submitted electronically, the warning notice must be appropriately embedded in the electronic submission in a fashion that assures the visibility of the warning to any viewer.

Accordingly, the FAA proposes to designate the above-described information submitted under a VDRP to be protected under 49 U.S.C. 40123 and part 193, when obtained by the FAA pursuant to an accepted VDRP submission.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

An electronic copy of rulemaking documents may be obtained from the Internet by—

1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or

3. Accessing the Government Printing Office's Web page at http://www.thefederalregister.org/fdsys/.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Aircraft Certification Office, AIR-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-8235. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

Background

The proposed rule makes a change to the Schedule of Fees. The Department sets and collects its fees based on the concept of full cost recovery. The Department completed its most recent review of current consular fees and will implement a change to the Schedule of Fees based on the costs of services calculated by the Fiscal Year 2014 update to the Cost of Service Model.

The Department of State derives the general authority to set fees based on the cost of the consular services it provides, and to charge those fees, from the general user charges statute, 31 U.S.C. 9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the government.”). As implemented through Executive Order 10718 of June 27, 1957, 22 U.S.C. 4219 further authorizes the Department to establish fees to be charged for official services provided by U.S. embassies and consulates.

Several statutes address specific fees relating to passports. For instance, 22 U.S.C. 214(a) authorizes the Secretary of State to set the passport execution fee by regulation, and to authorize state and local government officials and the U.S. Postal Service to collect and retain the execution fee for each application for a passport accepted by such officials or the U.S. Postal Service.

Certain people are exempted by law or regulation from paying specific fees. They include, for instance, exemptions from the passport execution and application fees for officers or employees of the U.S. government proceeding abroad in the discharge of official duties and exemption from the passport execution fee if those officers or employees execute their application before a federal official. See 22 U.S.C. 214(a); 22 CFR 22.1; 22 CFR 51.52(b).

The Department last changed fees for passport services in an interim final rule dated September 8, 2015. See Department of State Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates, 22 CFR part 22 (80 FR 53704). Those changes to the Schedule went into effect September 26, 2015. A final rule regarding those fees has not yet been published.

With certain exceptions—such as the reciprocal nonimmigrant visa issuance fee—the Department of State generally sets consular fees at an amount calculated to achieve recovery of the costs to the U.S. government of providing the consular service, in a manner consistent with general user charges principles, regardless of the specific statutory authority under which the fees are authorized. As set forth in OMB Circular A-25, as a general policy, each recipient should pay a reasonable user charge for government services, resources, or goods from which he or she derives a special benefit, at an amount sufficient for the U.S. government to recover the full costs to it of providing the service, resource, or good. See OMB Circular No. A-25, sec. 6(a)(2)(a). The OMB guidance covers all Federal Executive Branch activities that convey special benefits to recipients beyond those that accrue to the general public. See id., sections 4(a), 6(a)(1).

The Department reviews consular fees through an annual update to its Cost of Service Model to determine the appropriateness of each fee in light of OMB guidance. The Department proposes to make the change set forth below in the Schedule of Fees accordingly. The Cost of Service Model is an activity-based costing model that determines the current direct and indirect costs to the U.S. government associated with each consular good and service the Department provides. The model update identified the direct and indirect cost of the passport execution fee, and the update's results formed the basis of the change herein proposed to the Schedule.

To set fees in accordance with the general user charges principles, the Department must determine the true cost of providing consular services. Following guidance provided in “Managerial Cost Accounting Concepts and Standards for the Federal Government,” OMB's Statement #4 of Federal Accounting Standards (SFFAS #4), available at http://www.fasab.gov/pdffiles/sffas-4.pdf, the Department chose to develop and use an activity-based costing (ABC) model to determine the true cost of each of its consular services.

The Government Accountability Office (GAO) defines activity-based costing as a “set of accounting methods used to identify and describe costs and required resources for activities within processes.” Because an organization can use the same staff and resources (computer equipment, production facilities, etc.) to produce multiple products or services, ABC models seek to identify and assign costs to processes and activities, and then to individual products and services through the identification of key cost drivers referred to as “resource drivers” and “activity drivers.” ABC models also seek to identify the amount of time an organization's personnel spend on each service and how much overhead cost (rent, utilities, facilities maintenance, etc.) is associated with delivering each service. ABC models require financial and accounting analysis, and modeling skills combined with a detailed understanding of an organization's business processes. ABC models require an organization to identify all activities required to produce a particular product or service (“activities”) and all resources consumed (costs) in the course of producing that product or service. An organization also must measure the quantity of resources consumed (“resource driver”); and the frequency and intensity of demand placed on activities to produce services (“activity driver”). SFFAS Statement #4 provides a detailed discussion of the use of cost accounting by the U.S. government.

The Department conducted periodic Cost of Service Studies using ABC methods to determine the costs of its consular services through 2009. In 2010, the Department moved to adopt an annually updated Cost of Service Model (CoSM) that measures all of its consular operations and costs, including all of the activities needed to provide consular services, whether fee-based or not. This provides a comprehensive and detailed look at all consular services and all services that the Department performs for other agencies in connection with its consular operations. The CoSM now includes approximately 80 distinct activities, and enables the Department to model its consular-related costs with a high degree of precision.

The Department uses three methods outlined in SFFAS Statement #4 (paragraph 149(2)) to assign resource costs to activities: (a) Direct tracing; (b) estimation based on surveys, interviews, or statistical sampling; and (c) allocations. The Department uses direct tracing to assign the cost of, for example, a physical passport book or the visa foil placed in a visa applicant's passport. Assigning costs to activities such as adjudicating a passport or visa application requires estimation based on surveys, interviews, or statistical sampling to determine who performs an activity and how long it takes. Indirect costs (overhead) in the CoSM are allocated according to the level of effort needed for a particular activity. Where possible, the model uses overhead cost pools to assign indirect costs only to related activities. For instance, the cost of rent for domestic passport agencies is assigned only to passport costs, not to visas or other services the Department provides only overseas. The Department allocates indirect support costs to each consular service by the portion of each cost attributable to consular activities. For example, the model allocates a portion of the cost of the Department's Bureau of Human Resources to consular services. The total amount of this allocation is based on the number of Bureau of Human Resources staff members who support Bureau of Consular Affairs personnel. In turn, this amount is allocated among the different consular services by the level of effort to provide them.

To assign labor costs, the Department relies on a variety of industry-standard estimation methodologies. To document how consular staff divide their time overseas, the Department conducts the Consular Overseas Data Collection (CODaC) survey of a representative sample of posts each year. The Department uses CODaC survey data in conjunction with volume data from more than 200 individual consular sections in consulates and embassies worldwide, to develop resource drivers to assign labor costs to activities. For consular activities that take place in the United States, the Department collects volume data from periodic workload reports, including Passport Agency Task Reports pulled from management databases that include Passport's Management Information System. Financial information is gathered from reports by the Bureau of Consular Affairs' Office of the Comptroller. The Department converts the cost and workload data it collects into resource drivers and activity drivers for each resource and activity.

Because approximately 70 percent of the workforce involved in providing consular services are full-time Federal employees, if demand for a service falls precipitously, the Department cannot shed employees as quickly as the private sector. Likewise, should demand rise precipitously, the Department cannot add employees quickly, because delivering the majority of consular services requires specially trained employees who cannot begin their training until they have completed the Federal hiring process and obtained a security clearance. Additionally, given government procurement rules and security requirements, the Department must commit to many of its facilities and infrastructure costs years before a facility becomes available. In spite of changes in demand, the Department is obligated to cover these costs. Given these and other constraints on altering the Department's cost structure in the short term, changes in service volumes can have dramatic effects on whether a fee is self-sustaining. Therefore, the CoSM includes two years of predictive data and three years of actual data. Predictive workloads are based on projections by the Office of Visa Services, the Office of Passport Services, and other parts of the Bureau of Consular Affairs that are consistent with Department budget documents prepared for Congress.

The costs the Department enters into the CoSM include every line item of costs, including items such as physical material for making passports and visas, salaries, rent, supplies, and IT hardware and software. The Department then determines a resource driver (from, for example, the responses to the CODaC survey) for each of these costs, as discussed above and enters the resource drivers and assignments into the model. The Department then selects an activity driver, such as the volume data discussed above, for each activity, in order to assign these costs to each service type. This process allows the model to calculate a total cost for each of the Schedule of Fees' line items for visa services, passport services, and overseas citizens services, and services for other government agencies and no-fee services. The model then divides this total cost by the total volume of the service or product in question in order to determine a final unit cost for the service or product. Projected costs for predictive years also are included to take account of changes in the size of consular staff, workload, and similar factors. The resulting database constitutes the CoSM. The Department continues to refine and update the CoSM in order to set fees commensurate with the cost of providing consular services. Because the CoSM is a complex series of iterative computer processes incorporating more than a million calculations, it is not reducible to a tangible form such as a document. Inputs are formatted in spreadsheets for entry into the ABC software package. The ABC software package itself is an industry standard commercial off-the-shelf product, SAP Business Objects. The software's output includes spreadsheets with raw unit costs, validation reports, and management reports.

A number of fees are set at levels other than cost. These include passport fees for minors, which are set below cost as a longstanding matter of policy, and the reduced Border Crossing Card Fee for Mexican Minors, which is set by law. The true cost of these services must be offset by other fees. These offsets are calculated on additional spreadsheets outside the model software. Final unit costs incorporate these offsets.

The last broad set of amendments to the Schedule of Fees occurred in 2014, though the Department has made some specific amendments to it since that time. Some fees, including the Immigrant Visa petition and the Immigrant Visa ineligibility waiver (items 31(a) and 35(c) respectively), are set by the Department of Homeland Security and were most recently updated by that agency on November 23, 2010. The change to the current Schedule of Fees is discussed below. The CoSM estimate discussed below is based on projected workload for Fiscal Year 2016, and the proposed fee has been rounded to make it easier to collect.

The Department proposes to increase the execution fee for passport books and cards from $25 to $35, excepting those persons who are exempted statutorily from paying the passport execution fee. The passport execution fee is applicable to all first-time passport applicants and certain other applicants who must apply in person, such as minors under the age of 16. Applicants apply in-person at post offices and other acceptance facilities, such as local clerks of court, and at the Department's passport offices. The passport execution fee includes the costs associated with accepting passport applications and fees in-person, including salaries, benefits, and an allocated portion of overhead including, but not limited to, rent, utilities, supplies, and equipment. The Department's CoSM showed that these costs were more than $33. The U.S. Postal Service—the acceptance agent for the majority of passport applications—regularly conducts a similar study and found that these costs were more than $34. See 22 U.S.C. 214(a); 22 CFR 51.51(b).

The $10 increase in the passport execution fee will result in a $10 increase to the cost to first-time passport applicants and certain applicants who must appear at post offices and other acceptance facilities such as local clerks of court. Individuals who apply for a passport renewal by mail will not see a fee increase.

The Department is publishing this rule as a proposed rule, with a 60-day provision for public comments.

The Department reviewed this proposed rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).

This proposed rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

This proposed rule is a major rule as defined by 5 U.S.C. 804(2).

The Department has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders. OMB determined that this rule is significant under Executive Order 12866, and the Department confirmed that it is economically significant as defined by the Executive Order.

This proposed rule is necessary in light of the Department of State's CoSM finding that the cost of executing first-time passports is higher than the current fee. The Department is setting the fees in accordance with 31 U.S.C. 9701 and other applicable authority, as described in more detail above. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the Government.”). This regulation generally sets the fee for passport executions at the amount required to recover the costs associated with providing this service.

Details of the proposed fee change are as follows:

The Department of State does not anticipate that demand for passport services affected by this proposed rule will change significantly because of these fee changes, and welcomes public comment on that expectation.

The Department does not believe that passport application fees are a significant determining factor when U.S. citizens decide to travel internationally. The price of a passport book or card remains minor in comparison with other costs associated with foreign travel, given that taxes and surcharges alone on an international airfare can easily surpass $100. As a result, the Department does not believe passport demand will be significantly affected by increases of the size proposed.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on federal programs and activities do not apply to this regulation.

The Department determined that this proposed rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This information collection contained in this proposed rule is pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. Information Collection 1405-0004, form DS-11 is related to this proposed rule. The Notice of Proposed Rulemaking proposes an increase in the passport execution fee, from $25 to $35, based on the result of the Department CoSM, which found that the government's cost of executing a first-time passport is higher than the fee that the Department was charging an individual applicant. The CoSM is an activity-based costing model that determines the current direct and indirect costs to the U.S. government associated with each consular good and service the Department provides.

This information collection was renewed on August 30, 2016, with an expiration date of August 31, 2019. This notice request comments as it pertains to the proposed fee increase from $25 to $35.

• Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:

• Email: [email protected]. You must include the DS form number, information collection title, and the OMB control number in the subject line of your message.

Fax: 202-395-5806. Attention: Desk Officer for Department of State.

The DS-11 solicits data necessary for Passport Services to issue a U.S. passport (book and/or card format) pursuant to authorities granted to the Secretary of State by 22 U.S.C. 211a et seq. and Executive Order (E.O.) 11295 (August 5, 1966) for the issuance of passports to U.S. nationals.

The issuance of U.S. passports requires the determination of identity, nationality, and entitlement with reference to the provisions of Title III of the Immigration and Nationality Act (INA) (8 U.S.C. 1401-1504), the 14th Amendment to the Constitution of the United States, other applicable treaties and laws, and implementing regulations at 22 CFR parts 50 and 51. The specific regulations pertaining to the Application for a U.S. passport are at 22 CFR 51.20 through 51.28.

The information collected on the DS-11 is used to facilitate the issuance of passports to U.S. citizens and nationals. The primary purpose of soliciting the information is to establish citizenship, identity, and entitlement to the issuance of the U.S. passport or related service, and to properly administer and enforce the laws pertaining to the issuance thereof.

Passport Services collects information from U.S. citizens and non-citizen nationals when they complete and submit the Application for a U.S. passport. Passport applicants can either download the DS-11 from the Internet or obtain one from an Acceptance Facility/Passport Agency. The form must be completed and executed at an acceptance facility or passport agency, and submitted with evidence of citizenship and identity.

Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is proposed to be amended as follows:

The Presidential Memorandum—National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (Nov. 21, 2012) states that an insider threat is the threat that any person with authorized access to any United States Government resources, to include personnel, facilities, information, equipment, networks or systems, will use her/his authorized access, wittingly or unwittingly, to do harm to the security of the United States through espionage, terrorism, unauthorized disclosure of national security information, or through the loss or degradation of departmental resources or capabilities.

In the Notice section of today's Federal Register, the FBI has established a new Privacy Act system of records, “FBI Insider Threat Program Records (ITPR),” JUSTICE/FBI-023. The system serves as a repository for FBI information and for information lawfully received from other federal agencies or purchased from private companies and permits the comparison of data sets in order to provide a more complete picture of potential insider threats.

In this rulemaking, the FBI proposes to exempt this Privacy Act system of records from certain provisions of the Privacy Act in order to avoid interference with the responsibilities of the FBI to detect, deter, and/or mitigate insider threats as established by federal law and policy. For an overview of the Privacy Act, see: https://www.justice.gov/opcl/privacy-act-1974.

This proposed rule relates to individuals rather than small business entities. Pursuant to the requirements of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, therefore, the proposed rule will not have a significant economic impact on a substantial number of small entities.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 801 et seq., requires the FBI to comply with small entity requests for information and advice about compliance with statutes and regulations within FBI jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT: Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/archive/sum_sbrefa.html.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires that the FBI consider the impact of paperwork and other information collection burdens imposed on the public. There are no current or new information collection requirements associated with this proposed rule. The records that are contributed to this system may be provided by individuals covered by this system, the FBI, DOJ, and United States Government components, other domestic and foreign government entities, or purchased from private entities, and sharing of this information electronically will not increase the paperwork burden on the public.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 103-3, 109 Stat. 48, requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year, the UMRA analysis is required. This proposed rule would not impose Federal mandates on any State, local, or tribal government or the private sector.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, it is proposed to amend 28 CFR part 16 as follows:

Background

On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 27 of the 81 species and announced the initiation of status reviews for each of the 27 species (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). This document addresses the findings for 2 of those 27 species: Common guitarfish (Rhinobatos rhinobatos) and blackchin guitarfish (Rhinobatos cemiculus). The status of, and relevant Federal Register notices for, the other 25 species can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we consider first whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; together, the Services) adopted a policy describing what constitutes a distinct population segment (DPS) of a taxonomic species (the DPS Policy; 61 FR 4722). The DPS Policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) to which it belongs. As stated in the DPS Policy, Congress expressed its expectation that the Services would exercise authority with regard to DPSs sparingly and only when the biological evidence indicates such action is warranted. Based on the scientific information available, we determined that the common guitarfish (Rhinobatos rhinobatos) and blackchin guitarfish (Rhinobatos cemiculus) are “species” under the ESA. There is nothing in the scientific literature indicating that either of these species should be further divided into subspecies or DPSs.

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.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened 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).

When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.

Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. Under section (4)(b)(1)(A), we are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species.

The status review for the two guitarfishes addressed in this finding was conducted by a NMFS biologist in the Office of Protected Resources. Henceforth, the status review report for these guitarfishes will be referenced in this preamble as “Newell (2016)”, and is available at http://www.nmfs.noaa.gov/pr/species/petition81.htm and on the respective species pages found on the Office of Protected Resources Web site (http://www.nmfs.noaa.gov/pr/species/index.htm). In order to complete the status review, information was compiled on each species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public in response to our petition finding.

Newell (2016) provided an evaluation of the factors specified by section 4(a)(1)(A)-(E) of the ESA (16 U.S.C. 1533(a)(1)(A)-(E)) (Summary of Factors Affecting the Two Guitarfish Species), as well as the species' demographic risks, such as low productivity, and then synthesized this information to estimate the extinction risk of the species (Extinction Risk). For the complete threats assessment, demographic risks analysis, and risk of extinction analysis, see Newell (2016).

The demographic risk analysis, mentioned above, is an assessment of the manifestation of past threats that have contributed to the species' current status and informs the consideration of the biological response of the species to present and future threats. For this analysis, Newell (2016) considered the demographic viability factors developed by McElhany et al., (2000). The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped and great hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: abundance; growth rate/productivity; spatial structure/connectivity; and diversity. These viability factors reflect concepts that are well-founded in conservation biology, and that individually and collectively provide strong indicators of extinction risk.

In conducting the threats assessment, Newell (2016) identified and summarized the section 4(a)(1) factors that are currently operating on the species and their likely impact on the biological status of the species. Newell (2016) also looked for future threats (where the impact on the species has yet to be manifested), and considered the reliability of forecasting the effects of these threats and future events on the status of these species. Using the findings from the demographic risk analysis and threats assessment, Newell (2016) evaluated the overall extinction risk of the species. Because species-specific information (such as current abundance) is sparse, qualitative “reference levels” of risk were used to describe extinction risk. The definitions of the qualitative “reference levels” of extinction risk were as follows: “Low Risk”—a species is at low risk of extinction if it is not at a moderate or high level of extinction risk (see “Moderate risk” and “High risk” below). A species may be at low risk of extinction if it is not facing threats that result in declining trends in abundance, productivity, spatial structure, or diversity. A species at low risk of extinction is likely to show stable or increasing trends in abundance and productivity with connected, diverse populations. “Moderate Risk”—a species is at moderate risk of extinction if it is on a trajectory that puts it at a high level of extinction risk in the foreseeable future (see description of “High Risk” below). A species may be at moderate risk of extinction due to projected threats or declining trends in abundance, productivity, spatial structure, or diversity. “High Risk”—a species 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 at such a high level of risk may be highly uncertain and strongly influenced by stochastic or depensatory processes. (Stochastic processes are random processes evolving with time; depensatory processes are density-dependent processes where a decrease in a species' population leads to reduced reproductive success, such as by an increase in the rate of predation on eggs or young, or through the reduced likelihood of finding a mate.) Similarly, a species 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.

The draft status review report (Newell (2016)) was submitted to independent peer reviewers; comments and information received from peer reviewers were addressed and incorporated as appropriate before finalizing the draft report. The status review report is available on our Web site (see ADDRESSES section) and the peer review report is available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. Below we summarize information from the report and our analysis of the status of the two guitarfish species. Further details can be found in Newell (2016).

Guitarfishes are cartilaginous fishes (class Chondrichthyes), in the subclass Elasmobranchii (which includes all cartilaginous fishes except chimaeras). They are part of the super order Batoidea, and members of the order Rajiformes, which also includes skates, sawfishes, electric rays, and rays. Rajiformes are characterized by a dorsoventrally depressed body with the anterior edge of the pectoral fin attached to the side of the head (Serena 2005). Guitarfishes are members of the family Rhinobatidae, which have a moderately depressed, elongated, shark-like body form, with pectoral fins barely enlarged (compared to other batoids except for sawfish), a subtriangular disk, two sub-equal, well-developed, and well-separated dorsal fins, and an elongated, wedge-shaped snout. Guitarfishes have a stouter tail than all other batoids except sawfishes and torpedo rays (Bigelow & Schroeder 1953; Serena 2005).

Rhinobatos rhinobatos and Rhinobatos cemiculus are sympatric species with relatively wide, overlapping ranges in the subtropical waters of the eastern Atlantic and Mediterranean. In the Atlantic both species range from Northern Portugal south to Angola, with R. rhinobatos extending slightly farther north into the Bay of Biscay in south Atlantic France. Both species' historical ranges include all Mediterranean countries with the exception of Malta and France, which are only in the range of R. rhinobatos. Both species are primarily found in coastal and estuarine, sandy or muddy bottomed habitat from very shallow water to depths of approximately 100 m (Corsini-Foka 2009; Melendez & Macias 2007; Serena 2005). Both species feed on a variety of macrobenthic organisms, including crustaceans, fishes, and mollusks (Basusta et al.,, 2007; Enajjar et al.,, 2007; Lteif 2015; Patokina & Litvinov 2005).

In terms of reproduction, Rhinobatos rhinobatos and Rhinobatos cemiculus are aplacental viviparous species (giving birth to live, free swimming young with embryo nutrition coming from a yolk sac rather than a placental connection). Both species aggregate seasonally to reproduce, with females visiting protected shallow waters to give birth (Capape & Zaouali 1994; Demirhan et al., 2010; Echwikhi et al., 2013; Ismen et al., 2007). As with many other elasmobranchs, females mature later and at greater sizes than males, females reach greater total length, and female fecundity increases with total length (TL) (Capape & Zaouali 1994; Cortés 2000; Demirhan et al., 2010; Enajjar et al., 2008; Ismen et al., 2007). Based on the limited available information, both species seem to be relatively fast growing compared to most elasmobranch species (Başusta et al., 2008; Enajjar et al., 2012)_ENREF_53. Additional species-specific descriptions are provided below.

Common guitarfish (Rhinobatos rhinobatos) are khaki-brown colored on their dorsal surface with a white underside (Melendez & Macias 2007). R. rhinobatos have rostral ridges that are widely separated over their entire length with the anterior of their nasal lobe level with the inner corner of their nostril. They have a wide posterior nasal flap and spiracles with two moderately developed folds, with the outer fold more prominent. They have no dorsal or anal spines and relatively small thorns present around the inner margin of their orbits, between their spiracles, on their shoulders and along the midline of their discs and tails (Melendez & Macias 2007). There are regional variations in the maximum size and size at maturity of R. rhinobatos. TL ranges from 22-185 cm with the heaviest specimen recorded reaching 26.6 kg (Edelist 2014; Ismen et al., 2007). The best available information estimated that 50 percent of females and males reached maturity between 79-87 cm TL and 68-78 cm TL, respectively (Abdel-Aziz et al., 1993; Demirhan et al., 2010; Enajjar et al., 2008), and that gestation lasts 9-12 months with females giving birth to 1-14 pups in the late summer or early fall (see Newell (2016)). The maximum age recorded was 24 years old (Başusta et al., 2008) and R. rhinobatos likely matures between 2 and 4 years old (Başusta et al., 2008; Demirhan et al., 2010). For a more detailed discussion of size, age, and reproduction see Newell (2016).

Blackchin guitarfish (Rhinobatos cemiculus) have a brown dorsal surface with a white underside and usually a blackish blotch on the snout, especially in juveniles. Their rostral ridges are narrowly separated and nearly join in the front. Their anterior nasal lobes extend little if any and their posterior nasal flaps are narrow. Their spiracle has two well-developed folds of about the same size. They have no anal or dorsal spine and have thorns present around the inner margin of their orbits, between their spiracles, on their shoulders, and along the midline of their disc and tail (Melendez & Macias 2007). There are regional variations in the maximum TL and size at maturity. TL ranges from 32-245 cm with the heaviest specimen recorded reaching 26 kg, although the maximum weight is likely much higher because the 26 kg specimen was only 202 cm TL (Capape & Zaouali 1994; Seck et al., 2004). Based on the best available information, 50 percent of females and males reached maturity between 138-153 cm TL and 112-138 cm TL, respectively (Enajjar et al., 2012; Valadou et al., 2006). The reported litter size varies greatly, but the reported range is 2-24 pups per litter with small litters typical (Capape & Zaouali 1994; Seck et al., 2004; Valadou et al., 2006). R. cemiculus is more prolific than R. rhinobatos, likely because it reaches a greater size than R. rhinobatos (Capape & Zaouali 1994). Gestation lasts between 5-12 months with parturition occurring in the later summer and early fall (Capape & Zaouali 1994; Seck et al., 2004; Valadou et al., 2006). Enajjar et al., (2012) found that males and females in the Gulf of Gabés, Tunisia, matured around 3 and 5 years of age, respectively, and that individuals of the species can live for at least 14 years. No other age data were found for this species. For a more detailed discussion of size, age, and reproduction, see Newell (2016).

Historically the common guitarfish was known on all shores of the Mediterranean as well as the coastal eastern Atlantic from the Bay of Biscay (France) to Angola (Melendez & Macias 2007). Throughout its historical Mediterranean range this species has likely always been rare in most of the northwestern Mediterranean, and more common in the Levantine Sea and along the southern shore of the Mediterranean from southern Tunisia to Egypt (Abdel-Aziz et al., 1993; Capapé et al., 2004; Çek et al., 2009; Edelist 2014; Lteif 2015; Saad et al., 2006). Presently R. rhinobatos has been extirpated from the northwestern Mediterranean, including the coasts of Spain and France, as well as the Tyrrhenian, Ligurian, and Adriatic Seas (Bertrand et al., 2000; Capapé et al., 2006; Medits 2016a; Notarbartolo di Sciara et al., 2007b). In this now curtailed portion of its range, up until the early 20th century, R. rhinobatos was likely only common in the waters around Sicily (Doderlein 1884; Psomadakis et al., 2009) and the Balearic Islands of Spain (Notarbartolo di Sciara et al., 2007b).

R. rhinobatos is present in all Tunisian waters, although less common than R. cemiculus. It is more abundant in the southeastern area around the Gulf of Gabès and the Bahiret el Biban, which are areas used by this species for reproduction (Capapé et al., 2004; Echwikhi et al., 2013; Echwikhi et al., 2012; Enajjar et al., 2008). In the Northern and Southern Lagoons near the City of Tunis in the Gulf of Tunis on the northwest coast of Tunisia, R. rhinobatos has become common since 2004, in response to environmental restoration of the lagoons (Mejri et al., 2004). Little information was available for the status of R. rhinobatos in Libyan waters beyond that they are targeted by fishers (Séret & Serena 2002). In a 2005 report, the Regional Activity Centre for Specially Protected Areas (RAC/SPA) proposed a research program that would focus on eight cartilaginous fishes of Libya, including R. rhinobatos, because of their commercial importance and interest in their conservation (RAC/SPA 2005). According to the proposal authors, some species, including guitarfishes, which are now rare or extirpated in other parts of the Mediterranean, are still common in Libyan waters. In neighboring Egypt, R. rhinobatos was common in commercial fishery catches in 1990 (Abdel-Aziz et al., 1993). Over the last 10 years, guitarfishes and other elasmobranchs have been increasingly exploited by Egyptian fishers as desirable bycatch species, and recent declines in landings indicate that these populations are currently being overexploited (A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016).

North of Egypt, R. rhinobatos was considered common in Israeli waters as of 2006, with the largest TL for the species recorded from a female specimen in the area (Edelist 2014; Golani 2006). Lernau and Golani (2004) state, “swarms of Rhinobatos rhinobatos are captured with purse seines.” Although this statement is not connected to a specific fishing area it appears the authors are either discussing fishing along the Israeli coast or in the nearby Bardawil Lagoon on the Egyptian Sinai Peninsula. R. rhinobatos is the most commonly observed elasmobranch in Lebanese fisheries (Lteif 2015). In a study of elasmobranch exploitation in Syria in the early 2000s, R. rhinobatos was characterized as a “moderate economically important species either for being caught in little quantities with high efforts in fishing, or for their little demand for human consumption. Or maybe for both reasons” (Saad et al., 2006). By comparison, R. cemiculus was characterized as a “very economically important species being caught in plentiful quantities and highly consumable” (Saad et al., 2006). No clarification was given as to whether there is low catch with high effort, or low demand. Regardless, the fact that R. rhinobatos was characterized as being of “moderate” economic importance indicates this fish is more than an occasional visitor to Syrian waters. In the Turkish portion of the Levantine Sea (off southeastern Turkey), R. rhinobatos is common in fisheries bycatch, including in İskenderun Bay, where, as of 2012, it was less common than R. cemiculus (Başusta et al., 2012; Çek et al., 2009). West of İskenderun Bay, based on samples collected in the early 1980s, R. rhinobatos is also common in Mersin Bay (Gücü & Bingel 1994), and it was collected in a 2002-2003 survey of the Karataş Coasts (located between İskenderun Bay and Mersin Bay). R. rhinobatos has also been recorded in the Gulf of Antalya, west of Mersin Bay (C. Mancusi, ARPAT, pers. comm. to B. Newell, NMFS, 23 March, 2016). Individuals of all life history stages, including large quantities of pregnant females, have been captured in the Gulf of Gabès and the Bahiret el Biban (Capapé et al., 2004), Alexandria, Egypt (Abdel-Aziz et al., 1993), and in İskenderun Bay (Çek et al., 2009). In the Aegean Sea, which is bound by the east coast of Turkey and the west coast of Greece, R. rhinobatos is rare (Corsini-Foka 2009). It was present on a checklist from 1969 (Bilecenoğlu et al., 2014), with one individual reported in 2008 and another in the 1970s (Corsini-Foka 2009), while no occurrences were detected during a 2006-2007 survey of Saroz Bay in the northeastern Aegean (Keskin et al., 2011).

In the Atlantic, north of the strait of Gibraltar, the only records we found of this species were from checklists and museum records from Spain and Portugal (Bañón et al., 2010; Carneiro et al., 2014) and it not is reported in the International Council for the Exploration of the Sea (ICES) DATRAS data base, which is a collection of 45 years' worth of survey data including data collected off the Atlantic coasts of France, Spain, and Portugal (ICES 2016), indicating that they are likely historically rare North of the Strait of Gibraltar.

Along the Atlantic coast of Africa, this species is found from Morocco to Angola. It is likely that this species is rare in Moroccan waters (Gulyugin et al., 2006; Serghini et al., 2008). In West Africa, R. rhinobatos has been one of the most common and widely distributed elasmobranchs in Mauritania, Gambia, Guinea, Guinea-Bissau, Senegal, and Sierra Leone, but has become scarce throughout most of this portion of its range in recent decades (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Mauritania, fishing pressure has driven declines in the average size of guitarfishes landed in the Banc d'Arguin National Park from 1998 to 2007 (Diop & Dossa 2011). Restrictions on elasmobranch fishing in the park have allowed guitarfishes to recover locally but they are still exploited throughout the rest of Mauritanian waters (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Senegal, guitarfishes are heavily targeted and this fishing pressure has caused local declines in both species, with substantial declines reported over the period of 1990 to 2005 (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016; Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b).

Rhinobatos rhinobatos occurs in the waters of Guinea-Bissau off the mainland and around the Bijagós Archipelago where it is targeted by fishers (Cross 2015; Fowler & Cavanagh 2005; Kasisi 2004; Tous et al., 1998). In the late 1990s, rapid and substantial declines of R. rhinobatos were reported in the Bijagós Archipelago, as specialized and sophisticated fishing teams targeting elasmobranchs for their fins migrated into the area, although previously the area had seen almost no elasmobranch fishing (Tous et al., 1998). In Guinea it is likely that this species is experiencing similar declines to those in Guinea-Bissau, Senegal, and Gambia (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Sierra Leone, this species is one of the most heavily exploited elasmobranchs (Diop & Dossa 2011). It was recorded from 2008-2010 in a survey by the Sierra Leone Ministry of Fisheries and Marine Resources as well as in industrial and artisanal fishery data (Sierra Leone Ministry of Fisheries and Marine Resources, pers. comm. to M. Miller, NMFS, 11 April, 2016). Rhinobatos rhinobatos is listed in an updated checklist of the marine fishes of Cape Verde, an island nation located about 600 km west of Dakar, Senegal. However, the authors of the checklist considered the record of R. rhinobatos invalid, stating that they did not know of any records of this species in the Cape Verde Islands (Wirtz et al., 2013).

Little information about the status of R. rhinobatos was available throughout the rest of this species' Atlantic range. From January 2009 to December 2010, R. rhinobatos was recorded during a study of landings by artisanal fishers based in the Ghanaian villages of Ahwaim and Elmina (Nunoo & Asiedu 2013). Rhinobatos rhinobatos is present in Gabon, but is likely less abundant than R. cemiculus (G. De Bruyne, Wildlife Conservation Society, Mayumba, pers. comm. to B. Newell, NMFS, 26 June, 2016). Rhinobatos rhinobatos was not caught from March 2013 to May 2015 during a study of artisanal fisheries around Mayumba, Gabon (De Bruyne 2015). No information on this species was available from Ghana and Gabon prior to these periods of study. We found no data for R. rhinobatos in the following countries, which have coastline in this species' range: Liberia, Cote d'Ivoire, Togo, Benin, Nigeria, Cameroon, Equatorial Guinea, São Tomé and Príncipe, Republic of the Congo, Democratic Republic of the Congo, and Angola.

Historically, the blackchin guitarfish had a distribution similar to, but slightly more restricted than, R. rhinobatos, with its range listed through most of the coastal Mediterranean, and in the eastern Atlantic from Portugal to Angola (Melendez & Macias 2007). In the Mediterranean, there are no records of this species off the coast of France (Capapé et al., 2006), and there are doubts about whether R. cemiculus occurred in the Adriatic Sea (Akyol & Capapé 2014). Throughout its historical Mediterranean range, this species has likely always been rare in most of the northwestern Mediterranean, and more common in the Levantine Sea and along the southern shore of the Mediterranean from southern Tunisia to Egypt (Rafrafi-Nouira et al., 2015). Presently all guitarfishes have been extirpated from the northwestern Mediterranean including the coast of Spain, as well as from the Tyrrhenian, Ligurian, and Adriatic Seas (Bertrand et al., 2000; Capapé et al., 2006; Medits 2016a; Notarbartolo di Sciara et al., 2007b). In this now curtailed portion of its range, up until the early 20th century, R. cemiculus may have been common in the waters around Sicily (Doderlein 1884; Psomadakis et al., 2009), and frequently occurred around the Balearic Islands of Spain (Notarbartolo di Sciara et al., 2007b).

Rhinobatos cemiculus commonly occur in fishery landings, both as a target species and as bycatch from the waters of the east coast of Tunisia, the north coast of Africa, and the eastern Mediterranean from Israel to southeastern Turkey (Capape & Zaouali 1994; Lteif 2015; Saad et al., 2006). It is fished throughout all of Tunisian waters. It is considered rare along the north coast of Tunisa, although it may become more common in this area due to warming seas (Rafrafi-Nouira et al., 2015) and environmental restoration (Mejri et al., 2004). It has always been abundant in southeastern Tunisia around the Gulf of Gabès and the Bahiret el Biban, where it is more abundant than R. rhinobatos, and is known to use these areas during reproduction, including for parturition (Capapé et al., 2004; Echwikhi et al., 2013; Echwikhi et al., 2012; Enajjar et al., 2008).

As with R. rhinobatos, little information is available on the status of R. cemiculus in Libyan waters beyond that they are targeted by fishers (Séret & Serena 2002), and that they are still common, relative to their occurrence in other parts of the Mediterranean (RAC/SPA 2005). Guitarfishes are consumed in Libya, and in a 2005 proposal for a research program focused on the cartilaginous fishes of Libya, R. cemiculus was selected as one of the eight priority species for research because of its commercial importance and interest in its conservation (RAC/SPA 2005). Capapé et al., (1981) reported that an Egyptian museum specimen of R. cemiculus originated from the Red Sea, but no other reference to this species occurring in the Red Sea was reported. We found no information on the distribution or abundance of R. cemiculus in Mediterranean Egyptian waters, but this fish likely occurs in this area (Capape & Zaouali 1994).

North of Egypt, R. cemiculus is considered prevalent in Israeli waters (less common than R. rhinobatos), where it is caught as bycatch by commercial fishers (Golani 2006). From December 2012 to October 2014, R. cemiculus was the second most common elasmobranch in Lebanese fisheries catches after R. rhinobatos (Lteif 2015). In a study of elasmobranch exploitation in Syria in the early 2000s, R. cemiculus was characterized as a “very economically important species being caught in plentiful quantities and highly consumable” (Saad et al., 2006).

North of Syria, R. cemiculus is one of the most common elasmobranchs in fisheries landings in İskenderun Bay, Turkey (and more abundant than R. rhinobatos) (Başusta et al., 2012; Keskin et al., 2011). West of İskenderun Bay, R. cemiculus was caught during a 2006 study of shrimp trawl bycatch in Mersin Bay sampling (Duruer et al., 2008). Rhinobatos rhinobatos, but not R. cemiculus, was collected in a 2002-2003 survey of the Karataş Coasts (Çiçek et al., 2014). In the Aegean Sea, R. cemiculus is rare (Corsini-Foka 2009; Filiz et al., 2016). In 2013, two large R. cemiculus were caught in trawls in İzmir Bay, Turkey (eastern-central Aegean), which the authors considered a range expansion for this species (Akyol & Capapé 2014). Further expanding the range of this species, in October 2012 one R. cemiculus was caught near Bursa, Turkey, in the Sea of Marmara, which connects the Aegean Sea and the greater Mediterranean to the Black Sea (C. Mancusi, ARPAT, pers. comm. to B. Newell, NMFS, 23 March, 2016), although this record has not been reported in peer-reviewed literature.

In the Atlantic, north of the Strait of Gibraltar, the only records we found of this species were from checklists and museum records from Spain and Portugal (Bañón et al., 2010; Carneiro et al., 2014), although Rafrafi-Nouira et al., (2015) noted that north of the Strait of Gibraltar, R. cemiculus was only known off Portugal. This species was not reported in the DATRAS data base (ICES 2016), indicating that they have historically been rare north of the Strait of Gibraltar.

Along the Atlantic coast of Africa, this species is found from Morocco to Angola. It is likely rare in Moroccan waters (Gulyugin et al., 2006; Serghini et al., 2008). In West Africa, R. cemiculus has been one of most common and widely distributed elasmobranchs in Mauritania, Gambia, Guinea, Guinea-Bissau, Senegal, and Sierra Leone, but it has become scarce throughout most of this portion of its range in recent decades (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Mauritania, fishing pressure has driven declines in the average size of guitarfishes landed in the Banc d'Arguin National Park from 1998 to 2007, resulting in 95 percent of the landed R. cemiculus being smaller than the size at 50 percent maturity (Diop & Dossa 2011). Restrictions on elasmobranch fishing in the park have allowed guitarfishes to recover locally, but they are still exploited throughout the rest of Mauritanian waters (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Senegal, guitarfishes are heavily targeted, and this has caused local declines in both species, with substantial declines reported over the period of 1990 to 2005 (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016; Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b).

Rhinobatos cemiculus occurs in the waters of Guinea-Bissau off the mainland and around the Bijagós Archipelago, where they are targeted by fishers (Cross 2015; Fowler & Cavanagh 2005; Kasisi 2004; Tous et al., 1998). Rhinobatos cemiculus was one of the elasmobranch species taken in the highest numbers in 1989 during experimental fishing trips (Diop & Dossa 2011). In the late 1990s, rapid and substantial declines of R. cemiculus were reported in the Bijagós Archipelago, as specialized and sophisticated fishing teams targeting elasmobranchs for their fins migrated into the area, although previously the area had seen almost no elasmobranch fishing (Tous et al., 1998). In Guinea, just south of Guinea-Bissau, R. cemiculus is one of the most important fishery species (Diop & Dossa 2011), and it is likely that this species is experiencing declines similar to those in Guinea, Senegal, and Gambia (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Sierra Leone, this species is one of the most heavily exploited elasmobranchs (Diop & Dossa 2011). It was recorded from 2008 to 2010 in a survey by the Sierra Leone Ministry of Fisheries and Marine Resources as well as in industrial and artisanal fishery data (Sierra Leone Ministry of Fisheries and Marine Resources, pers. comm. to M. Miller, NMFS, 11 April, 2016). Rhinobatos cemiculus is likely not common or exploited in the waters of Cape Verde (Diop & Dossa 2011). Little information about the status of R. cemiculus was available throughout the rest of this species' Atlantic range. From January 2009 to December 2010, R. cemiculus was not recorded in a study of landings by artisanal fishers based in the Ghanaian villages of Ahwaim and Elmina (Nunoo & Asiedu 2013). Rhinobatos cemiculus is present throughout Gabonese coastal waters (G. De Bruyne, Wildlife Conservation Society, Mayumba, pers. comm. to B. Newell, NMFS, 26 June, 2016), and it was reported as bycatch from March 2013 to May 2015 during a study of artisanal fisheries around Mayumba, Gabon (De Bruyne 2015). No information on this species was available from Ghana and Gabon prior to these periods of study. We found no data for R. cemiculus in the following countries with coastline in this species' range: Liberia, Cote d'Ivoire, Togo, Benin, Nigeria, Cameroon, Equatorial Guinea, São Tomé and Príncipe, Republic of the Congo, Democratic Republic of the Congo, and Angola.

Available information regarding historical, current, and potential threats to these two guitarfishes was thoroughly reviewed (see Newell (2016)). We find that the main threat to these species is overutilization for commercial purposes. This threat is exacerbated by both species' reproductive behavior. Mature adults, including near-term pregnant females, congregate in shallow waters to breed and give birth. This behavior is well understood and exploited by fishers throughout these species' ranges and exposes both species to capture by most demersal fishing gear types (Diop & Dossa 2011; Echwikhi et al., 2013; Echwikhi et al., 2012). Although information on these species' age structure and reproductive capacity is incomplete, it is likely that their reproductive capacity, which may be high compared to some other elasmobranchs, but low compared to most fished species, increases the threat of commercial overutilization to both species. We find that current regulatory mechanisms contribute to the extinction risk of both species because they are inadequate to protect these species from further overutilization. In addition, pollution and development that modifies coastal habitat may be a threat to these species' survival, although the specific effects of these threats are not well studied, so there is significant uncertainty regarding the contribution of pollution and coastal development to the extinction risk of these guitarfishes. We summarize information regarding these threats and their interactions below, with species-specific information where available, and according to the factors specified in section 4(a)(1) of the ESA. Available information does not indicate that recreational fishing, disease, predation, or other natural or manmade factors are operative threats on these species; therefore, we do not discuss these factors further in this finding. See Newell (2016) for a full discussion of all ESA section 4(a)(1) threat categories.

Both R. rhinobatos and R. cemiculus have likely been extirpated from the northwestern Mediterranean. Rhinobatos rhinobatos has likely been extirpated from the Mediterranean coasts of Spain and France, as well as the Tyrrhenian, Ligurian, and Adriatic Seas (Bertrand et al., 2000; Capapé et al., 2006; Medits 2016a). Rhinobatos cemiculus may never have occurred in the Mediterranean waters of France, but it has been extirpated from the Ligurian and Tyrrhenian Seas, the Balearic Islands, and possibly the Adriatic (it is uncertain if it ever occurred there) (Akyol & Capapé 2014; Medits 2016a; Notarbartolo di Sciara et al., 2007a). Throughout the area where both species have been extirpated, we found almost no information on the life-history of either species, including no mention of the presence of different maturity stages or pregnant females. Based on the lack of available information, it appears that both species were rare throughout much of the area where they have been extirpated, with the exception of the Balearic Islands and the waters off Sicily.

Around the Balearic Islands, both R. rhinobatos and R. cemiculus were frequently observed until at least the early 20th century (Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b). In the Tyrrhenian Sea, especially around Sicily, Rhinobatos spp. was common in commercial trawls in the northern Tyrrhenian as late as the 1960s (Doderlein 1884; Fowler & Cavanagh 2005; Psomadakis et al., 2009). Both species were present daily at the Palermo (northwest Sicily) fish market in the late 19th century, where R. rhinobatos was likely more common than R. cemiculus (Doderlein 1884). The seasonal influx of R. rhinobatos in Sicilian waters (which may also apply to R. cemiculus) described by Doderlein (1884) is similar to the seasonal congregation of breeding adults reported in other portions of both species' ranges.

Additionally, Doderlein (1884) reported specimens of R. cemiculus that were 170, 180, and 230 cm TL (the largest being male), indicating that these individuals were likely mature. However, there was no discussion of pregnant females, reproduction, or how R. rhinobatos and R. cemiculus used these areas, so there is significant uncertainty regarding how the loss of the populations in Sicilian and Balearic waters, as well as the loss of populations in the rest of the northwestern Mediterranean, could contribute to the extinction risk of either species.

Although we found no other evidence of extirpations, the best available information indicates significant declines of elasmobranchs in West Africa, with R. rhinobatos and R. cemiculus, which were once common, becoming scarce. This region has already seen the total or near extirpation of sawfishes and the African wedgefish (Diop & Dossa 2011; Fowler & Cavanagh 2005). Given the similarity of these species (relatively large, dorsoventrally flattened, coastal elasmobranchs) to Rhinobatos spp., and the significant fishing pressure in the area, it is reasonable to conclude that R. rhinobatos and R. cemiculus could face the threat of range curtailment in West Africa in the foreseeable future.

Throughout these species' ranges there is not much information available on the species-specific threats to R. rhinobatos and R. cemiculus habitat. However, in the Mediterranean, the decline of elasmobranch diversity and abundance is well documented, and is attributed in part to habitat destruction and pollution (Carlini et al., 2002; Cavanagh & Gibson 2007; Melendez & Macias 2007; Psomadakis et al., 2009). Mediterranean ecosystems have been shaped by human actions for millennia, perhaps more so than anywhere else on earth (Bradai et al., 2012). Large species that use coastal habitat, especially those species that use these areas as nursery areas (e.g., R. rhinobatos and R. cemiculus), are particularly vulnerable in areas of intensive human activity (Cavanagh & Gibson 2007). The semi-enclosed nature of the Mediterranean increases the effects of pollution and habitat degradation on elasmobranch species and, as a result, the status of elasmobranchs may be worse in the Mediterranean than in other regions of the world (Melendez & Macias 2007; Séret & Serena 2002).

The Mediterranean Sea receives heavy metals, pesticides, excess nutrients, and other pollutants in the form of run-off (Melendez & Macias 2007; Psomadakis et al., 2009). As long-lived predators, large elasmobranchs are significant bioaccumulators of pollutants (Melendez & Macias 2007). No information is available on the bioaccumulation of pollutants in the tissues of Rhinobatos spp. in the Mediterranean Sea, but other elasmobranchs, such as the spiny dogfish and the gulper shark, have shown high concentrations of toxins (Melendez & Macias 2007). A study of the accumulation of trace metals cadmium, copper, and zinc in fish along the Mauritanian coast showed low levels of bioaccumulation of these metals in the tissues of R. cemiculus compared to bony fishes. It should be noted that three specimens of R. cemiculus were the only elasmobranchs collected in this study, and that, in contrast with the Mediterranean, the trace metals in the area of the study are thought to be primarily natural in origin (Sidoumou et al., 2005).

Pollution, habitat degradation, and development in the coastal zone are also of concern in some African countries within these species' ranges (Diop & Dossa 2011; Kasisi 2004). While pollution is a concern in portions of both species' ranges, the effects of pollution on elasmobranchs and marine food webs are not well understood (Melendez & Macias 2007). We found no information describing how marine pollution affects Rhinobatos spp., so the contribution of marine pollution to these species' extinction risk is unknown.

The significant demersal trawling that occurred and continues to occur throughout the Mediterranean range of the two Rhinobatos species (Edelist 2014; FAO 2016b; Sacchi 2008), and to a lesser extent throughout their Atlantic range (Diop & Dossa 2011), has likely altered seafloor morphology (Puig et al., 2012). In some important reproductive areas for Rhinobatos spp., such as the southeast coast of Turkey, intense trawling pressure has occurred over recent decades in depths less than 70 m (Çiçek et al., 2014). However, we found no information that this habitat modification has had a direct effect on the abundance or distribution of these two species. Additionally, trawl fishing within three nautical miles of the Mediterranean coast has been prohibited since 2012 in order to protect coastal elasmobranch species (FAO 2016e).

Some information shows that these species are sensitive to habitat modification. Psomadakis et al., (2009) attributed the extirpation of Rhinobatos spp. from the northwestern Mediterranean to the combination of centuries of human development and fishing pressure. Additionally, both species returned to the Northern and Southern Tunis Lagoons in Tunisia after large scale restoration of the area (Mejri et al., 2004). Prior to restoration, the lagoons had undergone significant anthropogenic hydrological modification and been extremely polluted from sewage input and industrial waste (Noppen 2003). After restoration was completed in 2001, R. cemiculus was recorded for the first time, and R. rhinobatos, which had previously been rare, became common (Mejri et al., 2004). Based on the available information, it is likely that pollution and modification of habitat contribute to the risk of extirpation of both species from portions of their range. However, because of the lack of information on the pollution and habitat modification throughout their entire ranges, and because there is no information on the direct effects of these threats to either species, the degree of the contribution of these factors to the extinction risk of both species is unknown at this time.

The primary threat to both of these species is commercial overutilization. This threat is difficult to quantify, as fisheries data on elasmobranch landings throughout both species' ranges has been drastically underreported (Clarke et al., 2006; Diop & Dossa 2011; FAO 2016a). When elasmobranch catches have been reported, it was generally not reported at the species level (Bradai et al., 2012; Echwikhi et al., 2012). However, based on surveys of fishers' knowledge, museum records, and analysis of scientific surveys of the northern Mediterranean, it appears that commercial overutilization has been the main driver of both species' extirpation from the northwestern Mediterranean, and their decline in abundance in other regions (Baino et al., 2001; Bertrand et al., 2000; Capapé et al., 2006; Carlini et al., 2002; Diop & Dossa 2011; Echwikhi et al., 2012; Psomadakis et al., 2009).

The overutilization of these species is not concentrated in one area or fishery. Throughout portions of their ranges, they are, or were until recently, targeted for their fins, meat, or both (G. De Bruyne, Wildlife Conservation Society, Mayumba, pers. Comm. to B. Newell, NMFS, 26 June, 2016; Diop & Dossa 2011; Echwikhi et al., 2012). Throughout their ranges, there is great diversity in fisheries and in the types of gear used (Diop & Dossa 2011; FAO 2016b). As bycatch, R. cemiculus and R. rhinobatos are particularly exposed to fishing pressure from demersal trawl, gillnet, and longline fisheries (Cavanagh & Gibson 2007; Echwikhi et al., 2013; Echwikhi et al., 2012; FAO 2016d).

In West Africa, both species have been targeted by the shark fin fishery, which has led to both species becoming scarce in this region after a few decades of targeted fishing (Diop & Dossa 2011; Fowler & Cavanagh 2005). The explosion of the Chinese middle class at the end of the last century led to a rapid increase in demand for shark fin soup, a traditional Chinese dish desired for its alleged tonic properties and, most importantly, because it has served as an indicator of high societal status for centuries. Shark fins are one of the highest value seafood products in the world, especially compared to shark meat, which is widely regarded as low value (Dulvy et al., 2014; Hareide et al., 2007b). The value and quality of shark fins are judged by the thickness and length of the ceratotrichia, or fin needles, and based on this valuation system, guitarfishes have some of the most valuable elasmobranch fins (Hareide et al., 2007b).

The majority of the commercial harvest information available for these species in the Atlantic pertains to the FAO Subregional Fisheries Commission (SRFC) member countries: Mauritania, Senegal, Gambia, Guinea, Guinea-Bissau, Sierra Leone, and Cape Verde. Outside of the SRFC countries, we also found information on fisheries in Morocco, Ghana, and Gabon. We found no data for either species in the following countries, which have Atlantic coastline that is considered in one or both species' ranges: France, Spain, Portugal, Liberia, Cote d'Ivoire, Togo, Benin, Nigeria, Cameroon, Equatorial Guinea, São Tomé and Príncipe, Republic of the Congo, Democratic Republic of the Congo, and Angola.

In the SRFC region, elasmobranchs, including R. rhinobatos and R. cemiculus, have historically been extremely abundant (Diop & Dossa 2011). Prior to the 1970s, elasmobranchs were primarily taken as bycatch and processed for sale to meet local demand. There was a small market for salted and dried elasmobranch meat, based in Ghana that fueled trade for elasmobranch bycatch through the SRFC region, including for guitarfishes caught in Senegal and Gambia. However, compared to other fishery products, shark meat had very low value, so there was little economic incentive to develop a targeted fishery. Elasmobranch fishing in the SRFC region began to grow in Senegal and Gambia in the 1970s, and then, fueled by the growing demand for shark fins, developed into a robust and unsustainable shark fishery by the early 1980s. To supply the shark fin export industry, specialized shark fishing teams became increasingly common in the SRFC region. These teams of artisanal fishers migrate into new areas along the west coast of Africa as local elasmobranch resources become locally overexploited (Diop & Dossa 2011; Ducrocq & Diop 2006). As the fishery became more migratory, the increase in fishing effort drove the need to maximize profits, further encouraging the unsustainable, wasteful practice of finning (Diop & Dossa 2011; Tous et al., 1998). In recent decades the demand for elasmobranch meat, which was once considered a low value product, has grown, which provided additional economic incentive for growth in the shark fishery in the SRFC region (Clarke et al., 2007; Dent & Clarke 2015).

The SRFC subregion's international elasmobranch fishing industry is composed of industrial and artisanal fishing vessels, coastal processing facilities, and a robust trade network. Vessels are owned both by local fishermen and foreign investors (primarily Spanish). Owners have financed improvements in fishing technology (e.g. more advanced boats and nets) as yields have declined. Guitarfishes are also targeted from shore, such as by fishers using beach-based “`guitar lines” in Mauritania. In the SRFC region, elasmobranch fishing effort steadily increased since the 1970s, with landings peaking in the early 2000s, and then showing a significant and ongoing drop. Throughout the region (with the exception of Cape Verde, an offshore island nation where neither species are abundant), “resources seem to be fully exploited, if not overexploited, for almost all selachian1 species” (Diop & Dossa 2011; Ducrocq & Diop 2006). Because Rhinobatos spp. have also been heavily targeted for their highly valuable fins in the SRFC region for decades, this status of full or overexploitation likely also applies to guitarfishes in the SRFC region (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016).

In the SRFC region, Diop and Dossa (2011) report the importance of one or both R. rhinobatos and R. cemiculus to local elasmobranch fisheries in all member countries except Gambia and Cape Verde. Fishers throughout this region time their fishing activities with the migration patterns and reproductive behavior of both species, targeting guitarfishes when they return to the shallows to give birth (Ducrocq & Diop 2006). In Mauritania, R. cemiculus is one of the three elasmobranch species taken in highest numbers (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). In Guinea-Bissau and Guinea, R. cemiculus is listed as one of the few species listed as “most important landings” and “taken in the highest numbers,” respectively. In Sierra Leone, “Rhinobatos spp. and Dasyatis spp. (stingrays) are found in the highest numbers, both in terms of weight and number.” In Senegal, both species, along with coastal sharks, are the main fisheries targets (Diop & Dossa 2011). Diatta et al., (2009) also found that guitarfishes were some of the primary elasmobranchs targeted by the robust artisanal fishery in Senegal, where finning is prevalent, and these fishes were caught when they returned to shallow waters to breed.

While the shark fin industry has been the major driver for elasmobranch declines in the SRFC countries, it is not the sole driver of overutilization of R. rhinobatos and R. cemiculus. The region has also experienced heavy population shifts in recent decades, primarily from people migrating to the coast, and this has put increased demand on all marine resources. Additionally, fisheries reporting in the area is inadequate, and there is significant bycatch in the industrial fishing industry (Diop & Dossa 2011). In addition to reported harvest, since 1980, the African Atlantic coast has experienced extremely high rates of illegal, unreported, and unregulated (IUU) fishing, including in shallow areas where both guitarfish species are vulnerable to capture (Agnew et al., 2009; Greenpeace 2015).

As a result of the decades of sustained and widespread targeting of guitarfishes and other elasmobranchs in the SRFC region, combined with the increasing overall fishing effort, there has been an overall decrease in catch, with some species, such as sawfishes, lemon sharks and the African wedgefish, almost completely disappearing (Diop & Dossa 2011), and some species, including guitarfishes, becoming scarce (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016; Ducrocq & Diop 2006). Based on survey and fisher interview data collected by the IUCN Guinea-Bissau Programme and the National Centro de Investigacao Pesqueira Applicada, both guitarfishes were the main targets of specialized fishing teams in Guinea-Bissau, and landings had declined substantially as of the late 1990s (Fowler & Cavanagh 2005; Tous et al., 1998). This fishing pressure also drove down the average size of R. rhinobatos landed (Notarbartolo di Sciara et al., 2007b). According to unpublished data from the Senegalese Ministry of Maritime Economy and International Maritime Transportation, guitarfish landings in Senegal have decreased from 4,050 t in 1998 to 821 t in 2005, with a reduction in the overall size of specimens landed (Notarbartolo di Sciara et al., 2007a). Diop and Dossa (2011) reported that, because of overexploitation in the Banc d'Arguin National Park in Mauritania, 95 percent of landed R. cemiculus were smaller than their size-at-maturity, which was likely impacting their reproductive capacity. A ban on shark fishing in Banc d'Arguin National Park has allowed guitarfishes to recover within the park's boundaries, but both species are still heavily targeted outside of the park (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016).

While Diop and Dossa (2011) characterized one or both species as being important, or landed in high numbers, in fisheries in Senegal, Mauritania, and Guinea-Bissau, the authors did not state a time period for these characterizations. As just discussed, significant declines in the overall abundance of guitarfishes have been reported in all of these countries (Diop & Dossa 2011; M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016; Fowler & Cavanagh 2005; Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b) as well as substantial reported declines in landings of larger, more fecund, individuals of both species in Guinea-Bissau, Senegal (Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b) and Mauritania (Diop & Dossa 2011). Similar trends are likely in Guinea and Gambia (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). Because of the migratory fisheries in the SRFC countries, and the reported scarcity of guitarfishes throughout the area (Diop & Dossa 2011), it is reasonable to assume similar declines have occurred or will occur in Sierra Leone.

In Morocco, both species are likely rare; they are not targeted, but at least R. rhinobatos occurs as demersal trawl bycatch (Notarbartolo di Sciara et al., 2007b). We found no information on the commercial exploitation of Rhinobatos spp. in Morocco but, in general, Moroccan fisheries are likely in a state of overexploitation after years of intense and extremely underreported fishing activity by foreign vessels (Belhabib et al., 2012b; Jouffre & Inejih 2005). In Ghana, where the artisanal fishing industry is an important and entrenched part of the economy, the demand for dried and salted elasmobranch meat was an early driver of the regional elasmobranch industry (Diop & Dossa 2011; Ducrocq & Diop 2006; Nunoo & Asiedu 2013), and R. rhinobatos, but not R. cemiculus, was recently reported in artisanal fisheries landings (Nunoo & Asiedu 2013). The demersal fisheries resources of Ghana have been “operating under stress during the last decades” (Nunoo & Asiedu 2013). Artisanal fishers from Ghana, as well as from neighboring Togo and Benin, have migrated to other countries' fishing grounds along the west coast of Africa, likely because fishing grounds in these fishers' countries have been overexploited, overcrowded, or both (De Bruyne 2015; Diop & Dossa 2011).

In Gabon, both species are present in coastal waters, and are targeted by artisanal fishers using specialized gear for their meat and to supply the black market fin trade, which is connected to the West African fin trade. Both species are also targeted by recreational fishers (G. De Bruyne, Wildlife Conservation Society, Mayumba, pers. comm. to B. Newell, NMFS, 26 June, 2016). In the area of the village of Mayumba in southwest Gabon, R. cemiculus was the most frequent batoid species captured by artisanal fishers from 2014 to 2015 (R. rhinobatos is not mentioned). This catch included no mature females, which was noted by the author as an indicator that fishing has had a negative impact on the reproductive capacity of this species in the area. Although the author noted the absence of pregnant females, he did not discuss whether pregnant females had previously been recorded in the area. “Sea fishing” began around Mayumba in the 1950s with the arrival of fishers from Ghana, Benin, and Togo, many of whom had been crowded out of fishing grounds in the Republic of the Congo. Until recently, this area experienced unsustainable industrial and IUU fishing. In this area, there has also long been subsistence fishing by locals in the Banio Lagoon, where sharks and rays were prevalent 30 years ago, but today are almost impossible to catch (De Bruyne 2015). Based on this information, it appears that overutilization has caused a decline in abundance and reproductive capacity of R. cemiculus in at least part of Gabonese waters.

In contrast with the relatively recent and rapid exploitation of guitarfishes in the African Atlantic, primarily driven by the demand for shark fins, finning is not widely practiced in the Mediterranean (Hareide et al., 2007a; Serena 2005). Instead, in the Mediterranean these species have been impacted by the centuries of sustained fishing pressure coupled with recent increases in fishing effort and fishing technology advances (Ferretti et al., 2008; Psomadakis et al., 2009). As evidence of both species' decline, R. rhinobatos and R. cemiculus have been listed on Annex II: List of Endangered or Threatened Species of the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA/BD Protocol) of the Barcelona Convention since 2012. The SPA/BD Protocol prohibits the landing of these species in the Mediterranean and requires that they “must be released unharmed and alive to the highest extent possible.” We found no studies on the survival rates of guitarfishes after being released from fishing gear interactions, so the potential of this requirement to reduce fishing mortality is unknown.

General Fisheries Commission for the Mediterranean (GFCM) recommendation GFCM/36/2012/3, which is associated with the SPA/BD Protocol (see Inadequacy of Existing Regulatory Mechanisms), also prohibits trawling within three nautical miles of the shoreline, greatly reducing the likelihood that these coastal fish will be caught as bycatch. Recommendation GFCM/36/2012/3 also prohibits finning and the landing of elasmobranchs without their heads and skins, thus protecting these fish from illegal sale (FAO 2016e)(Hareide et al., 2007a; Serena 2005). We found no information on the current level of IUU fishing on these species in the Mediterranean, so it is difficult to assess the impact of these prohibitions. Recent information from Tunisia, Lebanon, and Egypt indicates that the fisheries in these countries are inadequately regulated (Echwikhi et al., 2013; Echwikhi et al., 2012; Lteif 2015; A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016; Samy-Kamal 2015).

Regardless of the efficacy of the SPA/BD Protocol prohibitions, the historical fishing pressure on R. rhinobatos and R. cemiculus has driven declines in abundance throughout much of the Mediterranean (Baino et al., 2001; Bertrand et al., 2000; Capapé et al., 2006; Diop & Dossa 2011; Notarbartolo di Sciara et al., 2007a; Notarbartolo di Sciara et al., 2007b; Psomadakis et al., 2009). The area has a long history of fishing pressure, which has not abated in recent decades (Ferretti et al., 2008). Better technology and increased fishing effort, including increased benthic continental shelf and slope trawling over the last 50 years, has resulted in the decline of many elasmobranch species (Bradai et al., 2012). In the northwestern Mediterranean, sustained and intensive fishing pressure has been a main driver of the extirpation of Rhinobatos spp. (Bradai et al., 2012; Capapé et al., 2006; Psomadakis et al., 2009; Sacchi 2008). The highest concentration of fishing vessels in the Mediterranean occurs in the Eastern Mediterranean Sea and the Ionian Sea GFCM subregions, which make up the majority of the current Mediterranean ranges of Rhinobatos spp. Turkey, which appears to have some of the largest concentrations of R. cemiculus along its southern coast, also has the most fishing vessels with 16,447 vessels (17.74 percent of vessels in the Mediterranean). However, some of these vessels fish in the Black Sea, where neither species is found, or in the Aegean Sea, where these species are rare (FAO 2016b).

Between 1970 and 1985, reported Mediterranean and Black Sea chondrichthyan landings (which includes both guitarfishes) grew from 10,000 t to 25,000 t, and then declined to about 7,000 t annually in 2008 despite growing fishing effort (Bradai et al., 2012; Cavanagh & Gibson 2007; Hareide et al., 2007). During this time, Tunisia and Turkey were two of the most prolific Mediterranean elasmobranch fishing countries. As of 2007, there were six Mediterranean elasmobranchs affected by targeted fisheries. Historically, many more species had been targeted or landed in large quantities, but this number has been reduced because these fisheries are no longer commercially viable (Cavanagh & Gibson 2007; FAO 2016d; Ferretti et al., 2008). In a few areas in the Mediterranean, R. rhinobatos and R. cemiculus are or were targeted or considered a valuable secondary catch. Additionally, the global demand for elasmobranch meat has grown rapidly in recent decades, with the reported production of meat and fillets growing from approximately 40,000 tons in 1985 to 121,641 tons in 2004 (Clarke et al., 2007; Dent & Clarke 2015), potentially providing economic incentive to retain these species as targeted or incidental catch.

The primary Mediterranean area where R. rhinobatos and R. cemiculus have been fished is the waters of Tunisia, where seasonal artisanal fishers target elasmobranchs with gillnets and longlines when they move into shallow waters in the spring and summer (Echwikhi et al., 2013; Echwikhi et al., 2012). Rhinobatos spp. meat is sold in local markets and the skin is used for drumheads by local players (Capape & Zaouali 1994). In Tunisian waters R. cemiculus is landed in greater numbers than R. rhinobatos (Capape & Zaouali 1994; Echwikhi et al., 2013; Echwikhi et al., 2012), although species-specific data and reliable discard data are largely unavailable (Echwikhi et al., 2012). Data on fishing vessels are underreported, especially in Tunisia and Morocco. However, based on the available data, the Tunisian fleet is composed of 12,826 reported vessels, or 14.91 percent of the 92,734 vessels reported in the Mediterranean and Black Sea, making it the third largest Mediterranean and Black Sea fishing fleet. Since 1970, when total fisheries landings in Tunisia were about 25,000 tons, there has been a steady increase in landings, reaching an average of 101,400 t from 2000to 2013. Additionally, Tunisia has one of the youngest fishing fleets in terms of vessel age, indicating a relatively recent increase in fishing capacity. As is the case throughout the Mediterranean, the vast majority of the Tunisian fishery is composed of artisanal vessels (FAO 2016b). While elasmobranch landings have dropped overall in southern Tunisia (Echwikhi et al., 2013; Echwikhi et al., 2012), an assessment from the Workshop on Stock Assessment of Selected Species of Elasmobranchs in the GFCM area found that the southern Tunisian R. cemiculus stock was actually underfished from 2001-2007 (GFMC:SAC 2012).

Targeted fishing for guitarfishes in Tunisia likely began in the 1970s to mid-1980s (Capapé et al., 2004; Echwikhi et al., 2013). The majority of Tunisian elasmobranch catches have been from the Gulf of Gabès (Bradaï et al., 2006; Echwikhi et al., 2013; Echwikhi et al., 2012), where general elasmobranch landings and batoid landings steadily increased during the 1990s, peaked in 2002, and decreased from 2003 to 2008 (trend data are not available after 2008) (Echwikhi et al., 2012). Guitarfishes were targeted with special gillnets called “garracia,” with catches peaking in the spring and summer when females move into shallow waters to gestate and give birth. Adults, juveniles, and neonates have also been caught as bycatch in demersal fish and shrimp trawls (Bradaï et al., 2006). In a study of elasmobranch gillnet fishing in the Gulf of Gabès from 2007 to 2008, R. cemiculus was the most abundant elasmobranch caught. R. cemiculus and R. rhinobatos were 52 percent and 6.81 percent of the total elasmobranch catch, respectively. Female R. cemiculus (40 percent mature) and R. rhinobatos (48 percent mature) were more common than males. The authors of this study noted that R. cemiculus is particularly susceptible to capture in bottom gillnets because of its shape and schooling behavior (Echwikhi et al., 2012).

In recent years, Gulf of Gabès fishermen who had targeted grouper using demersal longlines have shifted to targeting elasmobranchs as grouper abundance has declined, although in this fishery elasmobranchs were still reported as bycatch (Echwikhi et al., 2013). The first study of elasmobranch catches in this longline fishery, conducted from 2007 to 2008, found that R. cemiculus was the most abundant elasmobranch, with R. cemiculus and R. rhinobatos composing 31.7 percent and 11.2 percent of the elasmobranch catch, respectively. Mature, pregnant females dominated the R. cemiculus catch, while males and females were about equal for R. rhinobatos, with slightly more mature individuals than juvenile individuals caught. This study found that longline fishing effort during this time period was “considerable” (Echwikhi et al., 2013). Enajjar et al., (2008) found a decrease in the overall TL and TL at 50 percent maturity for male and female R. rhinobatos in southern Tunisia, compared to the results reported by Capape et al., (1975, 1997). The reported decrease in R. rhinobatos, compared to the relatively recent GFCM:SAC (2012) stock assessment that found R. cemiculus was underfished in this area, may indicate that only the Tunisian population of R. rhinobatos is experiencing levels of fishing pressure that contribute to its risk of extinction. There is significant uncertainty with this conclusion because of the limited information available.

Just east of the Tunisian border, there are artisanal gillnet and longline elasmobranch fisheries based in Tarwah, Libya, that, as of 2000, primarily targeted sharks of the family Carcharhinidae, with guitarfishes and angelsharks retained as associate target species (Lamboeuf et al., 2000). This information was reported in Appendix VI of Lamboeuf et al., (2000), which provided an example of the project's database printout, rather than a complete picture of guitarfish retention in Libya, and we found no additional information on guitarfish catch in this country. According to the RAC/SPA (2005) research proposal, guitarfishes have been traditionally consumed in Libya, and some species that have declined in the greater Mediterranean, including guitarfishes, are still relatively common in Libyan waters. The effects of targeted fishing in Libya on the extinction risk of these species are unknown at this time.

Along the eastern Mediterranean, guitarfishes are illegally targeted in Lebanon by artisanal fishers. From December 2012 to October 2014, R. rhinobatos was the most common elasmobranch in Lebanese fisheries catches, followed by R. cemiculus, and both have had significant economic value. Fishing pressure in Lebanon is greatest in the north, where it has already impacted elasmobranch diversity (Lteif 2015). In a study of elasmobranch exploitation in Syria in the early 2000s, R. cemiculus was characterized as a “very economically important species being caught in plentiful quantities and highly consumable,” whereas R. rhinobatos was characterized as a “moderate economically important species either for being caught in little quantities with high efforts in fishing, or for their little demand for human consumption. Or maybe for both reasons” (Saad et al., 2006). It is unclear if R. cemiculus is more common or if there is a higher demand for its meat over that of R. rhinobatos, but these data indicate that both species were either targeted or welcomed as secondary catch in Syria. Overall fisheries landings in Lebanon and Syria increased since the 1970s, but their reported landings only make a small fraction of the overall Mediterranean catch (FAO 2016c).

Throughout their entire Mediterranean ranges, R. cemiculus and R. rhinobatos have long been exposed to pressure as bycatch (Bradai et al., 2012). Rhinobatos cemiculus is one of the most commonly landed elasmobranchs in İskenderun Bay, Turkey (and more abundant than R. rhinobatos) (Başusta et al., 2012; Keskin et al., 2011), where the coastal area is heavily fished, exposing mature, breeding individuals to capture when they migrate to shallow waters (Başusta et al., 2008). Rhinobatos spp. are not commercially important species in Turkey (Keskin et al., 2011), but Çek et al., (2009) reported that R. rhinobatos has been exploited by bottom trawlers in İskenderun Bay since 1990, and it is consumed locally. The same is likely true for R. cemiculus. After Egypt, Turkey has the highest number of registered trawlers in the Eastern Mediterranean, with 599 vessels (FAO 2016b). While some of these trawlers are concentrated in the Black Sea (FAO 2016b), the southeastern waters of Turkey, including İskenderun Bay, have been intensely fished for decades and have shown obvious signs of decline in biodiversity and fish abundance (Çiçek et al., 2014).

In Egypt, Mediterranean fisheries landings have generally been growing since the 1970s, as fishing technology has advanced and fishing effort has increased. There have been periods where landings dropped despite continued increases in fishing efforts (FAO 2016c; Samy-Kamal 2015). As a result there has been an increase in the landings of and demand for cartilaginous fishes bycatch, with guitarfishes (not reported at the species level) composing the majority of these landings, primarily as bycatch from shrimp trawls. Prior to 2005, shark and ray bycatch were usually discarded. From 2005 to 2006, landings of cartilaginous fishes jumped from around 500 tons to over 3,000 tons. Over the last 10 years, this production has remained high, although recently it decreased from over 3,000 tons annually in 2010 and 2011, to 1,843 tons in 2014 in spite of sustained fishing effort (A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016). Most of the landings in Egypt occur in the Nile Delta region, which is highly suitable for trawling and includes Alexandria, where R. rhinobatos is known to aggregate in shallow waters to give birth (Abdel-Aziz et al., 1993; Samy-Kamal 2015). Within this region, almost 80 percent of the cartilaginous fish production is landed at two ports, Alexandria and Borg El Burullus (A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016). Wild-caught fisheries in Egypt have been regulated for decades, but these regulations have been under-enforced, as the government has focused on developing the booming aquaculture industry. Additionally, regulations have not been updated to reflect the GFCM recommendations, which are apparently also not being enforced. This lack of enforcement has resulted in rampant IUU fishing in Egyptian waters, including unsustainable trawling and the use of illegal fishing gear (Samy-Kamal 2015). The lack of fishing regulations and enforcement has resulted in widespread declines in Egyptian fisheries, including in elasmobranch populations, and is likely also affecting neighboring countries, as Egyptian fishers are known to illegally fish in Libyan waters (A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016).

In the waters of Cyprus, there was a large increase in coastal trawl fishing effort in the late 1980s. From 1985 to 1990, there was a spike in elasmobranch capture, primarily of dogfish, skates, and rays, followed by a sharp decline in capture after 1990. In response to a government fishing permit buy-back program, trawling effort has reduced substantially since the early 2000s (Hadjichristophorou 2006). In Israel, reported landings are low, approximately at the levels reported for Syria and Lebanon, and have been decreasing for decades (FAO 2016c), although Edelist (2014) considered the soft-bottomed habitat off Israel to be under intensive fishing pressure. Guitarfish are caught as bycatch by local fishermen, but there is little market for elasmobranch products because they are not kosher, thus their consumption is forbidden by Jewish law. Elasmobranch species are primarily caught as bycatch by local fishermen using trawls and bottom long-lines, and also purse seines and trammel nets (Golani 2006). Rhinobatos rhinobatos are considered common in the area, while R. cemiculus is prevalent but less abundant than R. rhinobatos (Edelist 2014; Golani 2006).

The magnitude of the threat to R. rhinobatos and R. cemiculus from commercial overharvest is impossible to fully assess because of the lack of fisheries data, especially at the species level, from all countries in which these species occur. However, the best available information shows (1) fishery driven extirpation of Rhinobatos spp. from the northwestern Mediterranean (Capapé et al., 2006; Psomadakis et al., 2009); (2) decreasing elasmobranch landings due to decades of technological advances and increased fishing effort (Cavanagh & Gibson 2007; Diop & Dossa 2011; Melendez & Macias 2007; Séret & Serena 2002); (3) substantial decreases in the abundance of both species in West Africa (Diop & Dossa 2011); (4) considerable fishing effort in demersal fisheries concentrated in coastal areas where both species, especially reproductive individuals, are particularly vulnerable to capture (Çiçek et al., 2014; Diop & Dossa 2011; Echwikhi et al., 2013; Echwikhi et al., 2012; Samy-Kamal 2015); (5) sustained targeting of these species as commercially important species (Diop & Dossa 2011; Echwikhi et al., 2013; Echwikhi et al., 2012; Lteif et al., 2016; Saad et al., 2006); and (6) evidence of fishery driven size reduction (Diop & Dossa 2011; Enajjar et al., 2012). Based on this information, we conclude that overharvest from industrial and artisanal commercial fisheries is contributing significantly to the extinction risk of both R. rhinobatos and R. cemiculus throughout their ranges.

There are some regional and national regulatory mechanisms that impact the conservation status of these species. In 2009, both species were listed on SPA/BD Protocol Annex III: List of Species Whose Exploitation is Regulated, which was adopted under the Barcelona Convention in 1995 (Bradai et al., 2012). In 2012, both species were uplisted to Annex II: List of Endangered or Threatened Species (S. de Benedictis, GFCM Secretariat, pers. comm. to B. Newell, 12, May, 2016). The protocol charges all parties with identifying and compiling lists of all endangered or threatened species in their jurisdiction, controlling or prohibiting (where appropriate) the taking or disturbance of wild protected species, and coordinating their protection and recovery efforts for migratory species, among other measures that are likely less relevant to these species (RAC/SPA 1996). Currently, all coastal Mediterranean countries where these species occur are contracting parties to the SPA/BD Protocol (European Commission 2016). Further, since 2012, both species have been protected by GFCM recommendation GFCM/36/2012/3. This recommendation prohibits the finning of elasmobranchs or the beheading or skinning of elasmobranchs before landing, and it prohibits trawling in the first three nautical miles off the coast or up to the 50 m isobaths (whichever comes first). Additionally, Annex II elasmobranch species cannot be retained on board, transshipped, landed, transferred, stored, sold or displayed or offered for sale, and must be released unharmed and alive to the extent possible (GFCM/36/2012/3). Any capture of these species in the GFCM area of competence, which includes all national and high seas waters of the Mediterranean and Black Seas (FAO 2016f), is considered IUU fishing (S. de Benedictis, GFCM Secretariat, pers. comm. to B. Newell, 12, May, 2016).

In the Mediterranean, the efficacy of these and other protections is unclear, but it appears that countries have historically been slow to adopt and enforce the SPA/BD Protocol protections (Serena 2005). Italy, Greece, and Lebanon have promulgated regulations in accordance with the SPA/BD Protocol to protect species listed in Annex II (Bradai et al., 2012; Lteif 2015), Tunisia has restricted the retention of rays and skates less than 40cm, and all cartilaginous fishes are protected in Israel (Bradai et al., 2012). In Lebanon, these regulations are neither being followed nor enforced (Lteif 2015). Historically, monitoring of the Mediterranean fleet has been negligible (Séret & Serena 2002), and the data on cartilaginous fishes have not been reported at the species level (Echwikhi et al., 2012; Serena 2005). Vessel, bycatch, and discard data from artisanal fisheries, which primarily operate along the coast and make up 80 percent of the vessels in the Mediterranean, are difficult to obtain and likely underreported (FAO 2016c, 2016d). Echwikhi et al., (2012) and Echwikhi et al., (2013) describe the nature of artisanal gillnet and longline fisheries in Tunisia and the Mediterranean as “unregulated.” In Lebanon, Turkey, and Tunisia the artisanal sector makes up well over 80 percent of the total vessels, and no data were available for Syria (FAO 2016c), increasing the likelihood that fisheries in these important portions of Rhinobatos spp. range are underregulated and catches are underreported.

In Egypt, which is also an important part of the range of at least R. rhinobatos, the wild catch fisheries are underregulated as the government has focused most of its resources on supporting the booming aquaculture industry (Samy-Kamal 2015). This lack of regulation and enforcement has led to widespread overfishing in Egyptian waters, where both guitarfish species have been retained as profitable bycatch species since 2005, and Egyptian fishers are known to illegally fish in Libyan waters because of the overexploited state of local Egyptian fisheries. Additionally, the focus on aquaculture production has resulted in the pollution of coastal brackish lakes, which degrades coastal ecosystems (A. Marbourk, NOS, pers. comm. to B. Newell, NMFS, 21 July, 2016).

In the Atlantic African countries, as in the Mediterranean, artisanal fishing makes up a huge, growing proportion of the fishing activity. Until recently, this fishing sector has lacked species-specific data and strong management or regulations (De Bruyne 2015; Diop & Dossa 2011; Nunoo & Asiedu 2013). Along the Atlantic coast of Africa, all of the SRFC countries have passed regulations that offer some protection to either or both species. Cape Verde, Guinea, Gambia, and Sierra Leone have all banned finning. Mauritania has banned all elasmobranch fishing (except for houndshark) in Banc d'Arguin National Park since 2003. Guinea and Sierra Leone have introduced elasmobranch fishing licenses. Guinea-Bissau dismantled elasmobranch fishing camps in the Bijagos Archipelago and banned elasmobranch fishing in all marine protected areas (MPAs). Senegal established size limits for R. cemiculus (106 cm for males and 100 cm for females). However, all of the SRFC countries lack adequate technical and financial resources for monitoring and management, and regulations at the country level are not very strict and lack regional coordination (Diop & Dossa 2011). Whether these regulatory protections put in place in the SRFC countries are reducing the extinction risk of these species is unknown at this time.

In Gabon, a national marine planning effort called “Gabon Bleu,” which was established in 2012, seeks to improve management of marine resources across different stakeholder groups, including artisanal and industrial fishing. The country's 2005 Fisheries Code had established regulations that were not being followed, with reported non-compliance including the disconnection of vessel monitoring systems and the use of illegal monofilament nets by artisanal fishers. In 2012, under Gabon Bleu, all fishing activity was suspended, and all fishers who wished to resume work were required to sign an agreement that clearly defined the regulations and required their participation in fisheries research. Several arrests were made as a result of a crackdown on IUU fishing that included increased surveillance (De Bruyne 2015). Additionally, both species are considered “sensitive species” and cannot be targeted by fishers. Unfortunately, these regulations have not eliminated the black market for fins, so guitarfishes are still being targeted by artisanal fishers and illegally finned by demersal trawl fishers (G. De Bruyne, Wildlife Conservation Society, Mayumba, pers. comm. to B. Newell, NMFS, 28 June, 2016). In Mayumba National Park, only artisanal fishers have been allowed to operate, and sharks are no longer targeted (De Bruyne 2015). Recent efforts to improve monitoring of artisanal catches have also been made in Ghana (Nunoo & Asiedu 2013). Republic of the Congo, which shares Gabon's southern border, banned all shark fishing along its entire coastline in 2001 (Marine Conservation Institute 2016), although we found no information on the enforcement of this ban.

IUU fishing by foreign fleets is also a major challenge for sustainable fisheries management in Africa. The west coast of Africa has experienced some of the highest amounts of IUU fishing in the world for decades (Agnew et al., 2009). Historically, EU vessels had fished unsustainably off African countries (Agnew et al., 2009; Belhabib et al., 2012a), but recent regulatory updates, such as the reform for the European Union Common Fisheries Policy (CFP), have curbed these practices (Greenpeace 2015). Currently, the biggest source of IUU fishing in Atlantic African waters, in particular the SRFC region, is China, whose African distant water fishing fleet has swelled from 13 vessels in 1985, to 462 vessels in 2013 (Greenpeace 2015). Chinese vessels, which negotiate fishing agreements with African countries, have been documented trawling in shallow prohibited areas, underreporting catch, using illegal fishing gear, misreporting vessel specifications (including gross tonnage), and tampering with vessel monitoring systems (Greenpeace 2015). Currently, it appears that many West African coastal states lack the regulatory and enforcement capacity to adequately deal with this issue (Greenpeace 2015).

We found no regulatory information for Morocco, Liberia, Cote d'Ivoire, Togo, Benin, Nigeria, Cameroon, Democratic Republic of the Congo, and Angola. Overall, we found little information on the effectiveness of the current regulations in countries along the west coast of Africa and the Mediterranean, so it is difficult to assess how these regulations are impacting the extinction risk of both species. However, we do know that in the African Atlantic there has been rapid growth of unregulated or underregulated exploitation of both species. In addition, throughout both species' ranges IUU fishing is still prevalent, and there is an abundance of coastal, artisanal fishers, who can be difficult to regulate because of the novelty of efforts to regulate and manage fishers that have long been undermanaged or not regulated at all. Because of these factors, as well as the high catchability and low reproductive potential of these species, we conclude that the inadequacy of existing regulatory mechanisms is likely contributing significantly to the extinction risk of both R. rhinobatos and R. cemiculus. Although the 2012 SPA/BD Protocol Annex II listing and other current regulations may, in time, provide sufficient protection to reduce these species' risk of extinction, the current uncertainty associated with the enforcement of these restrictions is too great to conclude these protections are adequate to prevent overutilization.

Although there is no quantitative analysis of either species' abundance over time, and data for many demographic characteristics of R. rhinobatos and R. cemiculus are lacking, the best available data indicate that these species currently face a moderate risk of extinction due to their inherent demographic vulnerabilities, coupled with commercial overutilization and the inadequacy of regulations of commercial fisheries in their ranges. As defined in the status review (see Newell (2016)), a species is considered to be at a moderate risk of extinction when it is on a trajectory that puts it at a high level of extinction risk in the foreseeable future. In this case, we define the foreseeable future as 15-20 years, which is a reasonable amount of time to project the continued threat of overutilization as countries throughout both species' ranges develop and begin to enforce relevant regulations. Additionally, given the relatively low productivity of these species, it will likely take more than one generation for these species to recover. This foreseeable future corresponds roughly to three generation times of R. cemiculus (Enajjar et al., 2012). In this case, because of the lack of life-history data, we simply define the generation time of R. cemiculus as the age when the average female reaches sexual maturity (5.09 years).

The common guitarfish faces demographic risks that significantly increase its risk of extinction in the foreseeable future. Although there is no species-specific quantitative analysis of R. rhinobatos abundance over time, the best available information (including survey data, interviews with fishers, and anecdotal accounts) indicates that this species has likely undergone significant declines throughout most of its range, with no evidence to suggest a reversal of these trends, with the exception of a few, extremely localized examples. Based on survey data and historical records, this species once occurred throughout the entire coastal northwestern Mediterranean, including as a common species off the Balearic Islands and Sicily, but it has been extirpated for decades throughout this entire area. In the Mediterranean, strong fishing pressure on this species, both as a targeted species and as bycatch, likely still occurs in Tunisia, Lebanon, southeast Turkey, Egypt, and Libya. In Africa, substantial and relatively recent declines have occurred in Mauritania, Senegal, Gambia, Guinea-Bissau, and Sierra Leone, all countries where this species was one of the most common elasmobranch species only a few decades ago. This species is also targeted illegally for its fins in Gabon, and IUU fishing is likely rampant throughout most of its African Atlantic range.

The limited productivity data on R. rhinobatos suggests this species may be relatively fast-growing and productive compared to other elasmobranchs. However, compared to most fished species, such as bony fishes, this species is slow-growing and has low productivity. Additionally, aspects of this species' reproductive strategy make it inherently vulnerable to overexploitation. This species is long-lived, and larger, older individuals are the most productive. Because this species migrates into shallow waters to give birth and breed, the breeding population of this species is very vulnerable to fishing capture and, as a result, a decline of the average size at maturity and rate of maturity in catches has been reported in many of the portions of this species' range where data are available. Information on spatial structure, connectivity, and diversity is unavailable for this species. However, differences in maximum TL, size at maturity, and reproductive timing throughout this species' range, combined with evidence of extirpated populations from areas that have not been recolonized after decades, suggest there may be isolated populations that contribute to the genetic diversity of this species.

In conclusion, although there is significant uncertainty regarding the current abundance of this species, the best available information indicates that the species has suffered substantial declines in many portions of its range where it was once common. Throughout almost all of this species' range, the threat of overutilization from industrial and artisanal fishing continues. Given the past evidence of fishery-driven extirpation in areas where this species was once common, and the still-practiced targeting of mature, breeding individuals, which has likely reduced the reproductive potential of these species, we find that continued fishing pressure poses a significant risk of endangering this species with extinction in the foreseeable future. Additionally, the regulations and conservation measures in place are likely inadequate to reverse the decline of this species. In summary, based on the best available information and the above analysis, we conclude that R. rhinobatos is presently at a moderate risk of extinction throughout its range.

The blackchin guitarfish faces demographic risks that significantly increase its risk of extinction in the foreseeable future. Although there is no species-specific quantitative analysis of R. cemiculus abundance over time, the best available information (including survey data, interviews with fishers, and anecdotal accounts) indicates that this species has likely undergone significant declines throughout most of its range, with no evidence to suggest a reversal of these trends, with the exception of a few, extremely localized examples. Based on survey data and historical records, this species once occurred throughout much of the coastal northwestern Mediterranean, likely as a common species off the Balearic Islands and Sicily, but it has been extirpated for decades throughout this entire area. In the Mediterranean, strong fishing pressure on this species, both as a targeted species and as bycatch, likely still occurs in Tunisia, Lebanon, southeast Turkey, Egypt, and Libya. In Africa, substantial and relatively recent declines have occurred in Mauritania, Senegal, Gambia, Guinea-Bissau, and Sierra Leone, all countries where this species was one of the most common elasmobranch species only a few decades ago. This species is also targeted illegally for its fins in Gabon, and IUU fishing is likely rampant throughout most of its African Atlantic range.

The limited productivity data on R. cemiculus suggests this species may be relatively fast-growing and productive compared to other elasmobranchs. However, compared to most fished species, such as bony fishes, this species is slow-growing and has low productivity. Additionally, aspects of this species' reproductive strategy make it inherently vulnerable to overexploitation. This species is long-lived and larger, older individuals are the most productive. Because this species migrates into shallow waters to give birth and breed, the breeding population of this species is very vulnerable to fishing capture and, as a result, a decline of the average size at maturity and rate of maturity in catches has been reported in many of the portions of this species' range where data are available. Information on spatial structure, connectivity, and diversity is unavailable for this species. However, differences in maximum TL, size at maturity, and reproductive timing throughout this species' range, combined with evidence of extirpated populations from areas that have not been recolonized after decades, suggest there may be isolated populations that contribute to the genetic diversity of this species.

In conclusion, although there is significant uncertainty regarding the current abundance of this species, the best available information indicates that the species has suffered substantial declines in many portions of its range where it was once common. Throughout almost all of this species' range, the threat of overutilization from industrial and artisanal fishing continues. Given the past evidence of fishery driven extirpation in areas where this species was once common, and the still-practiced targeting of mature, breeding individuals, which has likely reduced the reproductive potential of this species, we find that continued fishing pressure poses a significant risk of endangering this species with extinction in the foreseeable future. Additionally, the regulations and conservation measures in place are likely inadequate to reverse the decline of this species. In summary, based on the best available information and the above analysis, we conclude that R. cemiculus is presently at a moderate risk of extinction throughout its range.

Throughout the ranges of R. rhinobatos and R. cemiculus, we found no efforts that are dedicated specifically to the conservation of these species. However, there are some efforts in portions of their ranges that may have a positive effect on the status of these species. These include recently developed management plans and protections from harvest and habitat modification in national parks and MPAs.

All SRFC countries except Gambia have adopted, or integrated into their fisheries management plans, a National Plan of Action for the Conservation and Management of Sharks (NPOA-Sharks) as part of the Sub-Regional Plan of Action for the Conservation of Sharks (SRPOA-Sharks) (Diop & Dossa 2011). With assistance from the International Union for the Conservation of Nature's Shark Specialist Group (IUCNSSG), these plans were developed under the recommendations of the FAO International Plan of Action for the Conservation and Management of Sharks (IPOA-SHARKS). IPOA-SHARKS seeks to ensure conservation and sustainable management of sharks with emphasis on quality data collection for management purposes (IUCNSSG 2016). In the SRFC, these plans are still in the early stage of implementation, and it remains to be seen how effective they will be in minimizing the extinction risk of R. rhinobatos and R. cemiculus. Additionally, all of the SRFC countries lack adequate technical and financial resources for monitoring and management, and regulations at the country level are not very strict and lack regional coordination (Diop & Dossa 2011). There are no NPOA-Sharks developed for the other African nations in these species' Atlantic ranges (IUCNSSG 2016). All European countries have adopted the EU Plan of Action (EUPOA Sharks) but we could find little information on conservation actions associated with this plan.

The GFMC is one of the only FAO Regional Fisheries Management Organizations (RMFOs) with the competence to adopt spatial management measures in the high seas. However, many of these protections have focused on the deep sea (FAO 2016e), offering little conservation value to either species. In the early 2000s, Cyprus initiated a fishing license buy-back program, which likely reduced trawl impact on these species (Hadjichristophorou 2006), although we found little information on either species' status in Cyprian waters, so we cannot evaluate the conservation benefit of this action.

The Regional Activity Centre for Specially Protected Areas (RAC/SPA) and the Network of Marine Protection Area Managers in the Mediterranean (MedPAN) have been working with a diverse network of partners to establish a network of well-connected, well-managed MPAs that protect at least 10 percent of the Mediterranean Sea while representing the sea's biodiversity (Gabrié et al., 2012). The Gabrié et al., (2012) report, entitled “The Status of Marine Protected Areas in the Mediterranean Sea,” found that, as of 2012, only 4.6 percent of the Mediterranean surface (114,600 km2) was protected by MPAs, with these areas mostly concentrated in the coastal zone, predominantly in the northern basin where these species are rare or have been extirpated. Two Mediterranean ecoregions that are important to both species, the Tunisian plateau and the Levantine Sea, were found to be “markedly under-represented.” Management of MPAs throughout the Mediterranean was found to be weak, with many MPAs lacking dedicated managers and management plans and financial resources, and having a low surveillance levels, with only northwestern MPAs reporting a sufficient budget to effectively manage. Additionally, the level of ecosystem protection varies throughout the Mediterranean MPAs. For example, most are not “no-take” zones, so artisanal and recreational fishers still have access to many protected areas.

There are also MPAs on the West Coast of Africa that might impact or have already impacted the status of these two guitarfish species. In the Banc d'Arguin National Park in Mauritania, the use of specialized gear such as guitarfish nets as well as the targeting of shark and ray species has been prohibited since 2003 (Diop & Dossa 2011). This allowed the local guitarfish populations to recover, but both species are still targeted outside of the park (M. Ducrocq, Parcs Gabon, pers. comm. to J. Shultz, NMFS, 21 June, 2016). Guinea-Bissau has banned shark fishing in all of its MPAs, including the Bijagos Archipelago, which includes important areas for both species (Cross 2015; Diop & Dossa 2011). Mayumba National Park in Gabon, where at least R. cemiculus is found, has recently implemented gear restrictions and no longer allows industrial fishing (De Bruyne 2015). There are also other MPAs that dot the west coast of Africa, but they collectively cover only a small fraction of both species' ranges (MPAtlas 2016).

There is significant uncertainty regarding the status of the current populations of both R. rhinobatos and R. cemiculus, but both species may still be relatively common, although very likely below their historical population levels, in Tunisia, Israel, Lebanon, Syria, and southeastern Turkey. Based on this information, and the best available scientific and commercial information, as summarized here and in Newell (2015), we find that neither Rhinobatos species is currently at high risk of extinction throughout their entire ranges. However, both species are at moderate risk of extinction. We assessed the ESA section 4(a)(1) factors and conclude that R. rhinobatos and R. cemiculus face ongoing threats of overutilization by fisheries and inadequate existing regulatory mechanisms throughout their ranges. Both species have also suffered a curtailment of a large portion of their historical ranges. These species' natural biological vulnerability to overexploitation and present demographic risks (declining abundance, decreasing size of reproductive individuals, and low productivity) are currently exacerbating the negative effects of these threats. Further, ongoing conservation efforts are not adequate to improve the status of these species. Thus, both species are likely to become endangered throughout their ranges in the foreseeable future. We therefore propose to list both species as threatened under the ESA.

Conservation measures provided for species listed as endangered or threatened under the ESA include recovery plans (16 U.S.C. 1533(f)); concurrent designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)) and consistent with implementing regulations; Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); and, for endangered species, prohibitions on taking (16 U.S.C. 1538). Recognition of the species' plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Section 7(a)(4) (16 U.S.C. 1536(a)(4)) of the ESA and NMFS/USFWS regulations also require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that result in the destruction or adverse modification of proposed critical habitat of those species. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur outside of the United States and are unlikely to be affected by Federal actions.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) 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 (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(h)).

The best available scientific and commercial data as discussed above identify the geographical areas occupied by R. rhinobatos and R. cemiculus as being entirely outside U.S. jurisdiction, so we cannot designate critical habitat for these species.

On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires NMFS to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. Because we are proposing to list the R. rhinobatos and R. cemiculus as threatened, no prohibitions of section 9(a)(1) of the ESA will apply to these species.

We are proposing to list R. rhinobatos and R. cemiculus as threatened under the ESA. In the case of threatened species, ESA section 4(d) leaves it to the Secretary's discretion whether, and to what extent, to extend the section 9(a) “take” prohibitions to the species, and authorizes us to issue regulations necessary and advisable for the conservation of the species. Thus, we have flexibility under section 4(d) to tailor protective regulations, taking into account the effectiveness of available conservation measures. The section 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These section 9(a) prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Because neither species has ever occupied U.S. waters, and the United States has no known commercial or management interest in either species, we propose to not apply any section 9(a) prohibitions to either species.

To ensure that any final action resulting from this proposed rule to list the R. rhinobatos and R. cemiculus as threatened will be as accurate and effective as possible, we are soliciting comments and information from the public, other concerned governmental agencies, the scientific community, industry, and any other interested parties on information in the status review and proposed rule. Comments are encouraged on these proposals (See DATES and ADDRESSES). We must base our final determination on the best available scientific and commercial information. We cannot, for example, consider the economic effects of a listing determination. Before finalizing this proposed rule, we will consider the comments and any additional information we receive, and such information may lead to a final regulation that differs from this proposal or result in a withdrawal of this listing proposal. We particularly seek:

(1) Information concerning the threats to the Rhinobatos species proposed for listing;

(2) Taxonomic information on the species;

(3) Biological information (life history, genetics, population connectivity, etc.) on the species;

(4) Efforts being made to protect the species throughout their current ranges;

(5) Information on the commercial trade of the species;

(6) Historical and current distribution and abundance and trends for the species; and

(7) Any of the above information on either or both species from the following countries, from which we have very little information: Morocco, Liberia, Cote d'Ivoire, Ghana, Togo, Benin, Nigeria, Cameroon, Equatorial Guinea, São Tomé and Príncipe, Republic of the Congo, Democratic Republic of the Congo, Angola, Algeria, and Syria.

We request that all information be accompanied by: (1) Supporting documentation, such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing a minimum peer review standard. We solicited peer review comments on the draft common guitarfish and blackchin guitarfish status review report (Newell (2016)) from three scientists familiar with both guitarfish species. We received and reviewed these peer review comments, and incorporated them into both the draft status review report for the common guitarfish and blackchin guitarfish and this proposed rule. Peer reviewer comments on the draft status review are summarized in the peer review report, which is available at: http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.

A complete list of references used in this proposed rule is available upon request (see ADDRESSES).

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 National Environmental Policy Act (NEPA).

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 proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant governmental agencies in the countries in which the species occurs, and they will be invited to comment. We will confer with the U.S. Department of State to ensure appropriate notice is given to all foreign nations within the ranges of both species. As the process continues, we intend to continue engaging in informal and formal contacts with the U.S. State Department, giving careful consideration to all written and oral comments received.

For the reasons set out in the preamble, we propose to amend 50 CFR part 223 as follows:

Background

On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or populations as endangered or threatened species under the ESA. We determined that the petition had sufficient merit for further consideration, and status reviews were initiated for 27 of the 81 species or populations, including the Hector's dolphin (Cephalorhynchus hectori; 78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). This document addresses the proposed determination for the Hector's dolphin. The findings and relevant Federal Register notices for the other species and populations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Maui's dolphin, C. hectori maui, and the South Island (SI) Hector's dolphin, C. hectori hectori, have been formally recognized as subspecies (Baker et al. 2002, Pichler 2002); and thus, each meets the ESA definition of a “species.”

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.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened species and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available regarding the species' response to that threat, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.

Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species.

In assessing the extinction risk of these two subspecies, we considered demographic risk factors, such as those developed by McElhany et al. (2000), to organize and evaluate the forms of risks. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our previous status reviews (see http://www.nmfs.noaa.gov/pr/species for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level (or in this case, the subspecies level) according to four demographic viability factors: Abundance and trends, population growth rate or productivity, spatial structure and connectivity, and genetic diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

Scientific conclusions about the overall risk of extinction faced by Maui's dolphin and the SI Hector's dolphin under present conditions and in the foreseeable future are based on our evaluation of the subspecies' demographic risks and section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on each subspecies.

Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect the species. Therefore, prior to making a listing determination, we also assess such protective efforts to determine if they are adequate to mitigate the existing threats.

Status reviews for Maui's dolphin and the SI Hector's dolphin were completed by NMFS staff from the Office of Protected Resources. To complete the status reviews, we compiled the best available data and information on the subspecies' biology, ecology, life history, threats, and conservation status by examining the petition and cited references, and by conducting a comprehensive literature search and review. We also considered information submitted to us in response to our petition finding. A single draft status review report was prepared for the two subspecies and submitted to three independent peer reviewers; comments and information received from peer reviewers were addressed and incorporated as appropriate into the draft report. The draft status review report (cited as Manning and Grantz 2016) is available on our Web site (see ADDRESSES section). In the sections below, we provide information from the report regarding threats to and the status of each subspecies.

The Hector's dolphin is one of the world's smallest dolphins and occurs only in the coastal waters of New Zealand. Hector's dolphins have short and stocky bodies, no external beak, and a relatively large fluke. They are easily distinguished by their distinctive black, white, and gray color patterns and their rounded dorsal fin, which has a shallowly sloping anterior edge and a convex posterior edge, and is unique to the genus (Dawson 2009). Lifespan is thought to be about 20 years (Slooten 1991, Secchi et al. 2004b), and several dolphins have been aged to a minimum of 22 years based on photo-identification data (Rayment et al. 2009a, Webster et al. 2009). Hector's dolphins have a varied diet that includes cephalopods, crustaceans, and small fish species; however, relatively few prey species appear to comprise the bulk of their diet. Stomach content analysis indicates that common prey species include red cod (Pseudophycis bachus), ahuru (Auchenoceros punctatus), arrow squid (Nototodarus sp.), sprat (Sprattus sp.), sole (Peltorhamphus sp.), and stargazer (Crapatalus sp., Miller et al. 2013).

Females typically have their first calf at 7-9 years of age, and males likely reach sexual maturity at 6-9 years of age (Slooten 1991, Gormley 2009). Calving occurs in the austral spring and early summer, generally from November to February (Slooten and Dawson 1988, Slooten and Dawson 1994). Calves remain with their mothers for 1 to 2 years, although 2 years appears to be more common (Slooten and Dawson 1994). Females typically produce single calves every 2 to 4 years (Slooten and Dawson 1994), which gives a yearly birth rate between 0.33 and 0.5. Fecundity (i.e., the number of female offspring per female per breeding season) has been estimated as ranging from 0.165 to 0.250 (Secchi et al. 2004b, Gormley 2009).

Hector's dolphins make few audible sounds, and their repertoire consists mainly of high frequency (112-130k Hz) clicks of either one or two short pulses (i.e., usually less than 200 μs for single pulses and less than 400 μs for double pulses, Dawson 1988a). Analyses of recorded vocalizations suggest Hector's dolphins use their vocalizations for fine discrimination, locating prey, and communicating, rather than large-scale navigation, for which lower frequency echolocation is required (Dawson 1988a, Dawson 1991a).

Available data indicates that Hector's dolphins have small home ranges and high site fidelity (Bedjer and Dawson 2001, Bräger et al. 2002, Rayment et al. 2009a, Oremus et al. 2012). Based on multiple analyses of photo-identification data and genetic recapture data, the along-shore home range appears to be similar for both subspecies and is typically less than 50 km (Bräger et al. 2002, Rayment et al. 2009a, Oremus et al. 2012). Home ranges also do not appear to differ between males and females (Bräger et al. 2002, Rayment et al. 2009a).

Historically, Hector's dolphins are thought to have been present along almost the entire coastlines of both the North and South Islands of New Zealand (Cawthorn 1988, Russell 1999, Pichler 2002, MFish and DOC 2007a). The two subspecies probably became initially separated by the opening of Cook Strait during the late Pleistocene and Holocene interglacial periods, and this isolation was likely maintained through behavioral mechanisms such as natal philopatry and small home ranges (Pichler 2002, Baker et al., 2002, Dawson 2009). Currently, Maui's dolphins occur along the northwest coast of the North Island, between Maunganui Bluff in the north and Whanganui in the south (Currey et al. 2012). Occasional sightings and strandings have also been reported from areas farther south along the west coast as well as in areas such as Hawke Bay on the east coast of the North Island (Baker 1978, Russell 1999, Ferreira and Roberts 2003, Slooten et al. 2005, MFish and DOC 2007a, Du Fresne 2010). The SI Hector's dolphin currently has a fragmented distribution around the South Island (Dawson et al. 2004, Rayment et al. 2011b) and consists of at least three genetically distinct, regional populations (Pichler 2001, Pichler 2002, Hamner et al. 2012a). SI Hector's dolphins are most abundant around Banks Peninsula, Cloudy Bay, and Cliffords Bay on the east coast and along the central west coast. Distinct and localized populations also occur on the south coast in Te Waewae Bay, Toetoe Bay, and Porpoise Bay (Dawson and Slooten 1988b, Clement et al. 2011, Hamner et al. 2012a, Rodda 2014, Mackenzie and Clement 2014). The connectivity between these regional populations, especially the south coast populations, appears to be limited (Bejder and Dawson 2001, Hamner et al. 2012a). Hector's dolphins do not appear to occur offshore of or within the deep water fiords of Fiordland, although they have been sighted there on rare occasions (Dawson and Slooten 1988b, MFish and DOC 2007a).

Hector's dolphins are typically sighted within about 20 nautical miles (nmi; 37.0 km) of the shore and in water less than 100 m deep (Slooten et al. 2005, Mackenzie and Clement 2014, Rayment et al. 2011b, Mackenzie and Clement 2016). For the North Island, an extensive review by Du Fresne (2010) of both published scientific surveys and unpublished opportunistic sightings data indicates that Maui's dolphins are most frequently found within 4 nmi (7.4 km) of the coast but do occasionally occur at least as far as 7 nmi (13.0 km) offshore. Off the South Island, differences in distribution patterns have been observed for the west and east coasts that may be driven in part by differences in bathymetry or location of the shelf break. On the west coast, the 100 m isobath is always within 13 nmi (24.1 km) of the coast, and in some places as close as 5 nmi (9.3 km); whereas, off Banks Peninsula on the east coast, the 100 m isobath is 16 to 30 nmi (29.6 to 55.6 km) offshore (Rayment et al. 2011b). SI Hector's dolphins are typically within 8 nmi (14.8 km) from shore on the east coast of the South Island and within 3 nmi (5.6 km) from shore on the west coast (Rayment et al. 2010b, 2011b, Mackenzie and Clement 2013, Mackenzie and Clement 2016). However, SI Hector's dolphins have been sighted at least occasionally as far as about 20 nmi (37.0 km) from shore on both coasts (Rayment et al. 2010b, 2011b, MacKenzie and Clement 2016).

Seasonal changes in this nearshore distribution are evident for at least some populations of Hector's dolphins, with distributions often extending farther from shore in the winter relative to the warmer months. For example, based on aerial surveys that extended as far as 20 nmi offshore (37.0 km) of Banks Peninsula and were conducted over 3 years (2002, 2004, and 2005), Rayment et al. (2010b) found that winter sightings extended as far as 18.2 nmi (33.6 km) offshore, compared to 16.3 nmi (30.2 km) in summer; and, while only 7 percent of all dolphins were sighted beyond the 50 m isobath in summer, 44 percent of all dolphins were sighted beyond the 50 m isobath in winter. Slooten et al. (2005) report a similar change in distribution for Maui's dolphins between summer and winter aerial surveys conducted in 2004/2005. Similar seasonal changes in SI Hector's dolphin distribution relative to shore and water depth have also been detected in comparisons of summer and winter sightings data for the west coast of the South Island; however, the observed seasonal shift on the west coast is less dramatic relative to that on the east coast (Rayment et al. 2011b, Mackenzie and Clement 2014).

Available information regarding historical, current, and potential threats to Maui's dolphins was thoroughly reviewed and is discussed in detail in the status review report (Manning and Grantz 2016). We summarize information regarding these threats below according to the factors specified in section 4(a)(1) of the ESA.

In August 2007, the New Zealand Department of Conservation (DOC) and the Ministry for Primary Industries (MPI, formerly called the Ministry of Fisheries or MFish) released a draft Threat Management Plan (TMP) for Hector's dolphins. This plan describes the nature and level of actual and potential threats to Maui's dolphins, as well as strategies to address those threats. In addition, in June 2012, DOC and MPI convened a risk assessment workshop to inform their review of the Maui's dolphin portion of the TMP. The results of this semi-quantitative risk assessment are available in the report by Currey et al. (2012). The report identifies, evaluates, and rates threats to Maui's dolphins based on scoring by an expert panel. Both the TMP and the risk assessment report greatly informed our assessment, as summarized below.

Threats to the habitat of Maui's dolphins include pollution, mining, oil and gas development activities, acoustic disturbance (Currey et al. 2012).

Persistent chemical pollutants are a concern for many cetacean species, which theoretically can accumulate high concentrations of contaminants due to their longevity, high trophic-level, and naturally high blubber content (Stockin et al. 2010). Contaminants are also specifically a concern for Hector's dolphins due to the dolphins' coastal distribution and thus close proximity to agricultural and industrial activities. Toxicological studies of contaminants, such as polychlorinated biphenyls (PCBs) and organochlorine (OC) pesticides, are limited for Maui's dolphins, and studies on emerging contaminants, such as brominated flame retardant (PBDEs) and perfluorinated chemicals, have yet to be done. Numerous studies on other cetacean species have linked contaminants, such as heavy metals, PCBs, and OC pesticides, with biological impacts, including endocrine disruption, reproductive impairment, immune suppression, and elevated infectious disease (e.g., Fujise et al. 1988, Kuiken et al. 1994, Jepson et al. 2005, O'Hara and O'Shea 2001, Schwacke et al. 2002, Wells et al. 2005). Stockin et al. (2010) examined PCB and OC contaminant loads in stranded or entangled Hector's dolphins (n=27, SI Hector's dolphins; n=3, Maui's dolphins) sampled from 1997 to 2009. Results indicated high concentrations of these chemicals in both subspecies, and a roughly two-fold increase in levels of OC pesticides than had been previously reported for Hector's dolphins by Jones et al. (1999). However, as noted by Stockin et al. (2010), no PCB concentrations were above thresholds associated with reproductive and immunological effects (Stockin et al. 2010).

Pollution in the form of plastic marine debris from both marine and land-based sources can accumulate in, and degrade, Maui's dolphins' habitat. Plastics and other synthetic, non-biodegradable materials in the marine environment create the potential for entanglement, injury, and ingestion. Although data are lacking to evaluate whether and the extent to which this threat is impacting Maui's dolphins, Currey et al. (2012) did identify plastics as being likely to affect population trends over the next 5 years. Plastic bags have been identified as a concern in particular, because they may be mistaken for squid, a common prey item for Maui's dolphins.

Interest in marine minerals mining along the North Island of New Zealand has been growing in recent years, with prospecting and exploration occurring mainly from Manukua Harbor south to New Plymouth (Thompson 2012). Exploration activities have mainly targeted iron sands or titanomagnetite (Thompson 2012). According to New Zealand Petroleum and Minerals (NZPM), which is the government agency responsible for issuing mining permits for New Zealand's oil, gas and mineral resources, demand and exploration for petroleum (oil and gas) is also increasing, and multiple areas within the range of Maui's dolphins are covered under existing prospecting, exploration, and mining permits. Mineral mining activities involving the large scale removal of sediment from the seabed are likely to lead to relatively long term (3-10 year) changes to benthic community composition, thereby altering prey availability and benthic topography (Thompson 2012). Other potential, unintended side-effects include the mobilization and accidental spilling of contaminants and exposure to greater levels of vessel traffic (Thompson 2012). Acoustic disturbance, such as from seismic surveys, sonar, and drilling activities, also poses a potential threat to Maui's dolphins, because it may have negative physical or physiological effects, such as shifts in hearing thresholds, and may disrupt normal behaviors, including navigating, migrating, and feeding (Gordon et al. 2003; Thompson 2012).

The extent to which Maui's dolphins are currently being impacted by these and other habitat-related threats is assumed to be small. These threats have been characterized as having mainly sub-lethal effects, and combined, may currently be responsible for less than 4.5 percent of all Maui's dolphin mortalities (Currey et al. 2012). However, it is probable that Maui's dolphin habitat will become increasingly degraded as a result of pollution and acoustic and benthic disturbances due to increasing human pressure and demand for mineral and petroleum resources (MFish and DOC 2007b).

Overutilization of Maui's dolphins for commercial, recreational, scientific, or educational purposes does not appear to pose a significant threat to Maui's dolphin. Maui's dolphins have not been exploited commercially; although, Baker (1978, citing Abel et al. 1971) noted that, between 1969 and 1972, a few Hector's dolphins were taken for live exhibition at Marineland of New Zealand. It's not clear which subspecies was taken. Hector's dolphins have also apparently been taken for food, oil, and bait; however, the extent to which this occurred is unknown (Pichler et al. 2003).

There is some evidence that commercial dolphin-watching vessels and swim-with-dolphin operations cause behavioral changes in Hector's dolphins (Bejder et al. 1999, Constantine 1999, Martinez et al. 2012). Such tourism activities, however, seem to occur at a relatively low intensity within the range of Maui's dolphins and instead are much more concentrated elsewhere—mainly the Bay of Islands and the Bay of Plenty on the east coast of the North Island and various locations of the South Island (Martinez 2010b). Although tourism and the potential related impacts of boat strike, noise, and displacement were identified as threats in the risk assessment completed by Currey et al. (2012), the expert panel did not think these threats were likely to affect population trends within the next 5 years.

Predation of Hector's dolphins by several shark species, such as seven-gill sharks (Notorhynchus cepedianus) and blue sharks (Prionace glauca), is known to occur; however, predation rates are not known (Slooten and Dawson 1988). Predation was not considered to be posing a threat to Maui's dolphins in the recent risk assessment by Currey et al. (2012).

Disease is another known source of mortality for Hector's dolphins. In their evaluation, Currey et al. (2012) categorized natural disease, stress-induced disease, and domestic animal vectors as posing threats that are likely to have population level effects on Maui's dolphins within the next 5 years. Prevalence of infectious disease and associated behavioral impacts and mortality rates have not been well studied in Hector's dolphins, so the significance of this source of mortality remains unclear. Recently, Roe et al. (2013) found that 7 of 28 Hector's dolphins (25 percent), including 2 of 3 Maui's dolphins, collected between 2007 and 2011 and later necropsied had died as a result of Toxoplasma gondii infection. Of the 22 dolphins for which a definitive cause of death was established, a total of ten (45 percent) were found to have died from infectious disease (T. gondii infections, bacterial infection, or fungal infection). These findings suggest that infectious disease may be a significant source of mortality for Hector's dolphins. In addition, while toxoplasmosis is typically a secondary disease in cetaceans, resulting in symptoms in immunosuppressed individuals rather than healthy individuals, there was no evidence of immunosuppression in these cases (Roe et al. 2013). This finding suggests that Hector's dolphins may be particularly susceptible to toxoplasmosis. Roe et al. (2013) also note that toxoplasmosis may have other effects beyond direct mortality and could be an important cause of neonatal loss. The source of the T. gondii infection could not be determined in this study, but exposure may be occurring through freshwater run-off from terrestrial sources (Roe et al. 2013). Overall, while data remain limited for Maui's dolphins, the available data suggest that disease, especially toxoplasmosis, is posing a threat to Maui's dolphins.

A number of regulatory measures have been put in place to address bycatch of Maui's dolphins. Although data on bycatch of Maui's dolphins are limited, fishery-related mortality has been identified as posing a significant threat to Maui's dolphins. The risk assessment completed by Currey et al. (2012) attributed 95.5 percent of the estimated human-caused mortalities forecasted to occur over the next 5 years to legal and illegal fishing-related activities. This translated into an estimated median of 4.97 Maui's dolphin mortalities per year due to fishing activities (95 percent confidence interval (CI) = 0.28—8.04). To help inform the risk assessment of Currey et al. (2012), Wade et al. (2012) calculated the Potential Biological Removal (PBR) for Maui's dolphins and estimated it as one dolphin mortality every 10 to 23 years. PBR, which is a management tool specific to the U.S. Marine Mammal Protection Act (MMPA) is used to evaluate allowable levels of human-caused mortality (Wade 1998; Wade et al. 2012). (PBR is defined under section 3 of the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (16 U.S.C. 1362).) This analysis indicates that the estimated bycatch mortality of Maui's dolphins greatly exceeds PBR.

The DOC maintains a database of reports from the public of dead and stranded Hector's dolphins, and between 1921 and 2008, 45 percent of the reports for Maui's dolphins (4 of 11 dolphins) for which cause of death could be determined were found to have died due to “possible,” “probable,” or “known” entanglement (http://www.doc.govt.nz/our-work/hectors-and-maui-dolphin-incident-database/1921-2008/). Between July 2008 and January 2016, the DOC Incident Database lists an additional four confirmed Maui's dolphins, and of the two with determinable causes of death, one was an adult female found dead in January 2012 from entanglement in a commercial net set (http://www.doc.govt.nz/our-work/hectors-and-maui-dolphin-incident-database/). (The other dolphin was recorded as having died due to natural causes.)

Bycatch of Maui's dolphins occurs mainly in gillnet gear, but bycatch in trawl gear is likely also posing a threat (Bird and Palka 2013). Although commercial gillnetting had been practiced in New Zealand since 1930 (DOC and MFish 1994), fishing effort was low until the mid-1970s (Dawson 1991). By the 1980's, bycatch of dolphins in gillnets became a serious concern in New Zealand (Dawson and Slooten 2005). Eventually, in 2003, MFish began to address bycatch of Maui's dolphins by closing waters to set netting from Maunganui Bluff to Pariokariwa Point out to 4 nmi (7.4 km) and inside the entrance to the Manukau Harbor. Trawling was also prohibited out to 2 nmi (3.7 km) along most of this same stretch of coastline and out to 4 nmi within a short portion of the Maui's dolphin's core range (see Figure 7 in Manning and Grantz 2016). Commercial and recreational gillnetting continued within harbors and in the southern portion of the Maui's dolphin range.

In 2007, when the draft TMP was released, the MPI and DOC concluded that bycatch was still the most serious threat to Hector's dolphins. In 2008, MFish expanded protection for Maui's dolphins by extending the set netting closure out to 7 nmi (13.0 km; instead of 4 nmi (7.4 km)) and farther into Manukau Harbor. Then, in 2012, following an entanglement of a Maui's dolphin off Cape Egmont, an interim ban was put in place from Pariokariwa Point south to Hawera for all set netting out to 2 nmi (Gazette, 28 June 2012) and for commercial set netting between two and seven nautical miles offshore unless an MPI observer was on board (see Figure 8 in Manning and Grantz 2016). In 2013, the MPI determined that their interim measures would be made permanent (MPI and DOC 2013).

This steady expansion of area-based, bycatch-reduction measures along the west coast of the North Island has resulted in a substantial level of protection for Maui's dolphins. However, bycatch remains a concern for Maui's dolphins, because current fisheries restrictions do not extend throughout their range and certain forms of fishing still occur within the core portion of the subspecies' range. In particular, commercial and non-commercial set netting occur within all west coast harbors, with all areas within the harbors, from intertidal areas to the deeper channels, being fished for species like flounder, mullet, and rig (MFish and DOC 2007b). Sightings data (Slooten et al. 2005) and passive acoustic data (Rayment et al. 2011a) indicate that Maui's dolphins occur at least occasionally within west coast harbors and therefore may be at risk of entanglement in these areas (MFish and DOC 2007b). In addition, the southern extension of the gillnetting prohibitions that was put in place in 2012 only extends out to 2 nmi (3.7 km) from shore, as opposed to the 7 nmi (13 km) boundary elsewhere along the west coast. Beyond 2 nmi, gillnetting is permitted in this portion of the range if an MPI observer is on board. Furthermore, the extension of the closed area in the southern portion of the dolphin's range may not extend far enough southward. The risk assessment of Currey et al. (2012) used survey and non-survey sightings data to develop a distribution for Maui's dolphins that extends to Whanganui, which is about 70 km south of the current gillnet closed area boundary at Hawera. Trawling also continues in waters past the existing 2 nmi or 4 nmi offshore boundary for the trawling closed area—even in the core portion of the Maui's dolphin's range. Currey et al. (2012) concluded that trawling in this zone was a source of continued bycatch risk for Maui's dolphins.

Before the protected area extensions in 2012, estimated bycatch was about 4.69 to 13.01 dolphins per year or about 75 times the PBR of 0.044-0.1 Maui's dolphins per year (Currey et al. 2012).). The recent extensions to the protection measures have reduced the estimated bycatch to 3.28−4.16 Maui's dolphin mortalities per year or about 54 times PBR (Slooten 2014).

A series of regulations have been put in place to address some of the threats associated with mining and petroleum industry activities. The West Coast North Island Marine Mammal Sanctuary (WCNIMMS) was established in 2008 as part of the draft TMP, and restrictions were put in place on seabed mining and acoustic seismic surveys within the sanctuary. In particular, seabed mineral mining was prohibited out to 2 nmi (3.7 km) along the full length of the sanctuary and out to 4 nmi (7.4 km) south of Raglan Harbor to north of Manakau Harbor. However, a large swath of the sanctuary, which extends out 12 nmi (22.2 km) from the coast, remains open to mining. A range of operational requirements has been specified for seismic surveying within the sanctuary (Gazette: Gazette, 25 September 2008), including mandatory notification prior to conducting surveys and mandatory reporting of any interactions with dolphins. Qualified marine mammal observers are required on all survey ships to help ensure that no whales or dolphins are too close to the ship. When visibility is poor, hydrophones must be used to listen for whale and dolphin sounds (Gazette, 25 September 2008). In August 2012, the DOC Minister and the Minister of Energy and Resources developed a voluntary “Code of Conduct for Minimizing Acoustic Disturbance to Marine Mammals from Seismic Surveys Operations.” This voluntary guidance was intended to increase protections for Maui's dolphins, in part by identifying their entire historical range out to 100m water depth as an “Area of Ecological Significance,” which triggers additional mitigation requirements. Shortly thereafter, in November 2013, the DOC and MPI announced a decision to formally regulate seismic surveying and make the 2012 code of conduct a mandatory standard. The mandatory code of conduct applies to Territorial waters, the Exclusive Economic Zone (EEZ) of New Zealand, and within all marine mammal sanctuaries, and it continues to include requirements for planning, operations, monitoring, and reporting. The 2013 code of conduct is currently undergoing review and may be further augmented to increase protections for Maui's dolphins and other species of concern.

As indicated in the discussion above, there are gaps in the current regulatory protections for Maui's dolphins. Population viability analyses performed under previous management scenarios have predicted continued declines in abundance of Maui's dolphins or failure to recover (Burkhart and Slooten 2003, Slooten 2007a), as do more recent analyses under the current fisheries management regime (Slooten 2013). More recent modelling work also indicates that recovery of this subspecies will occur only under circumstances where human-induced mortality is extremely minimal (Wade et al. 2012; Slooten 2013). Therefore, we conclude that while the protections for Maui's dolphins have gradually increased from 2003 to present, there is insufficient evidence to conclude that current regulatory measures are adequate in terms of addressing threats to this subspecies.

Other threats identified in the 2012 risk assessment and characterized as being likely to affect population trends within the next 5 years include fishing vessel noise, disturbance, and trophic effects of fishing; however, these threats were considered to collectively make very limited contributions to the overall level of human-caused mortality (Currey et al. 2012). Although vessel traffic and its associated impacts of disturbance and boat strikes were considered to contribute little to annual mortality of Maui's dolphins, mortality due to vessel traffic was rated as having a 47.8 percent chance of exceeding PBR (Currey et al. 2012). Due to their coastal distribution and apparent attraction to small boats (Baker 1978, Slooten and Dawson 1988), the potential for boat strikes could be considered relatively high, but reports of boat strikes have been extremely rare (Stone and Yoshinaga 2000a). None of the reports within the DOC Incident Database from July 2008 to April 2016 are listed with boat strike as the cause of death.

Available information regarding historical, current, and potential threats to SI Hector's dolphins was thoroughly reviewed and is discussed in detail in the status review report (Manning and Grantz 2016). We summarize information regarding these threats below according to the factors specified in section 4(a)(1) of the ESA.

As discussed earlier for Maui's dolphins, persistent chemical pollutants are a concern for SI Hector's dolphins, which can theoretically accumulate high concentrations of contaminants due to their longevity, high trophic-level, and naturally high blubber content (Stockin et al. 2010). In cetaceans, biological impacts resulting from accumulation of contaminants such as heavy metals, PCBs, and organochlorine (OC) pesticides include endocrine disruption, reproductive impairment, immune suppression, and elevated infectious disease (e.g., Fujise et al. 1988, Kuiken et al. 1994, O'Hara and O'Shea 2001, Schwacke et al. 2002, Jepson et al. 2005, Wells et al. 2005). As previously mentioned, Stockin et al. (2010) found high PCB and OC contaminant loads in Hector's dolphins (n=27, SI Hector's dolphins; n=3, Maui's dolphins) sampled from 1997 to 2009, and a roughly two-fold increase in levels of OC pesticides than had been previously reported for Hector's dolphins by Jones et al. (1999). However, no PCB concentrations were above thresholds associated with reproductive and immunological effects (Stockin et al. 2010). High levels of polychlorinated dibenzo-p-dioxins (PCDDs) and dibenzofurans (PCDFs), which are two related and ubiquitous chemical contaminants, were also found to occur at unexpected levels in the blubber of six SI Hector's dolphins (Buckland et al. 1990).

Plastic marine debris is also a concern for SI Hector's dolphins. Plastics and other synthetic, non-biodegradable materials in the marine environment create the potential for entanglement, injury, and ingestion by various marine species. As with other marine mammals, Hector's dolphins may become entangled and subsequently wounded, or have impaired foraging ability, and/or increased susceptibility to predation. Ingestion of plastics by marine species has been associated with a multitude of impacts including blockage of the digestive tract, starvation, reduction in reproductive capacity, drowning, and possible accumulation of toxic compounds (Laist 1997, Gregory 2009). Plastic debris was found in the stomach of a SI Hector's dolphin that stranded along the coast of the Canterbury region, and there are anecdotal reports of SI Hector's dolphins off Banks Peninsula with fishing line or netting entangling the head or upper body and cutting into the blubber (MFish and DOC 2007b).

Mining occurs along the west coast of the South Island where there are significant nearshore and beach deposits of ilmenite (mined mainly for titanium dioxide). The TMP for Hector's dolphins identified possible impacts of mining activity, including loss or reduction in prey species, noise, and vessel disturbance (MFish and DOC 2007b). Based on a search of the NZPM's map in June 2016 (http://data.nzpam.govt.nz/permitwebmaps?commodity=minerals), a large portion of the SI Hector's dolphin west coast range is included in a prospecting permit application, indicating the potential for continued mining activity in this region.

Prospecting permits for petroleum cover large areas along the southeastern coast of the South Island (http://data.nzpam.govt.nz/permitwebmaps?commodity=petroleum, June 2016). Drill ships are also operated off Canterbury and along the west coast of the South Island. Potential habitat impacts from these activities include oil spills; increased vessel traffic; and acoustic disturbances from seismic surveys, sonar, and drilling activities. Contaminants in oil and gas may impact the health of the dolphins, and the associated noise may disrupt normal behaviors, such as navigating, migrating, and feeding (Gordon et al. 2003, Thompson 2012).

Overall, it is clear that SI Hector's dolphins are exposed to multiple habitat-related threats. However, the extent to which SI Hector's dolphins are being impacted—both individually and at a population level—by these habitat-related threats is not yet established due to insufficient data (MFish and DOC 2007b). It is possible that SI Hector's dolphin habitat will become increasingly degraded in the future with increasing human use of the coastal zone and its resources (MFish and DOC 2007b).

Hector's dolphins have not been systematically captured for any commercial, recreational, scientific, or educational purposes; although, as noted earlier, a few Hector's dolphins have been taken for live exhibition. While Hector's dolphins have also apparently been taken for food, oil, and bait, the extent to which this occurred is not known (Pichler et al. 2003).

There is growing evidence that overutilization in the form of commercial dolphin-watching and swim-with-dolphin operations, which are increasingly popular tourist activities in New Zealand, are a concern for SI Hector's dolphins. The majority of the commercial viewing and encounter operations in New Zealand occur around the South Island and are especially popular along the east coast off Kaikoura and within Akaroa Harbor, which have become major eco-tourist destinations in New Zealand (Martinez 2010b). Within Akaroa Harbor, and as of 2010, there were up to about 18 daily `swim-with' trips and 14 dolphin-watching trips per day between November and March that specifically targeted Hector's dolphins (Martinez 2010b). In addition to permitted commercial operations, opportunistic viewing also occurs by both commercial and recreational boaters.

Dolphin-watching and swim-with-dolphin operations have been shown to cause behavioral changes in Hector's dolphins (Bejder et al. 1999, Constantine 1999, Martinez et al. 2012). In a study of SI Hector's dolphins in Porpoise Bay, Bejder et al. (1999) found that while SI Hector's dolphins were not displaced by dolphin-watching tour boats, the dolphins did respond by approaching the boats, especially initially, and by forming significantly tighter groupings. A possible interpretation of the behavioral response of `bunching' is that the boat is perceived as some kind of threat and may in fact cause the animals some level of stress (Constantine 1999). In Akaroa Harbor, Martinez (2010b) found that both diving—which is considered a feeding behavior—and travelling were significantly disrupted by vessel interactions. Evidence also indicates that the use of sounds to attract Hector's dolphins to swimmers affects the behavior of the dolphins (Martinez et al. 2012). For example, both the number and the duration of close interactions or approaches by Hector's dolphins were significantly greater when a swimmer banged two rocks together underwater (Martinez et al. 2012). Such deliberate efforts to attract Hector's dolphins could have behavioral consequences such as disrupted or reduced foraging time, which in turn can have biological consequences (Martinez et al. 2012). For some regional dolphin populations, a relatively large portion of that population can be exposed to the tourist activities occurring in a particular harbor or area. For example, about 80 percent of the SI Hector's dolphins that were photo-identified in surveys around Banks Peninsula between 1985 and 2006 had alongshore home ranges that included Akaroa Harbor, and for half of these dolphins, Akaroa Harbor served as a core use or “hub” area (Rayment et al. 2009a).

Longer-term impacts of these tourism activities on SI Hector's dolphins are not yet clear but could include physiological stress, reduced energy intake, and possibly even reduced calving success. Linkages between immediate behavioral responses to vessel traffic and longer-term biological consequences have already been established for other species (e.g., Tursiops sp.) and include declines in abundance and reduced reproductive success in females (Bejder et al. 2006a, 2006b, 2006c). Given this information and the fact that SI Hector's dolphin populations encounter dolphin-watching operations in multiple areas of their range (e.g., Porpoise Bay, Timaru, Akaroa Harbor, and Marlborough Sounds), dolphin-watching and `swim-with' activities are likely posing a significant but sub-lethal threat to this subspecies. The actual magnitude of this threat cannot yet be established, but this threat is likely to persist given the popularity and lucrativeness of the eco-tourism industry in New Zealand.

As previously mentioned, predation of Hector's dolphins by several shark species, such as broadnose seven-gill sharks (N. cepedianus) and blue sharks (P. glauca), is known to occur (Slooten and Dawson 1988). Although seven-gill sharks are particularly common around Banks Peninsula, predation rates are not known (Slooten and Dawson 1988), and there is no evidence to suggest predation is posing a threat to this subspecies.

Prevalence of infectious disease and associated impacts have not yet been well studied in Hector's dolphins, but recent evidence suggests that infectious disease may be a significant source of mortality for SI Hector's dolphins. In particular, Roe et al. (2013) found that out of 22 dolphins collected between 2007 and 2011 for which a definitive cause of death was established, a total of ten (45 percent) had died due to infectious disease (Toxoplasma gondii infections, bacterial infection, or fungal infection). Five of the 22 SI Hector's dolphins (23 percent) were found to have died as a result of T. gondii infection (toxoplasmosis, Roe et al. 2013). While toxoplasmosis is typically a secondary disease in cetaceans, resulting in symptoms in immunosuppressed individuals rather than healthy individuals, there was no evidence of immunosuppression in these cases, suggesting that Hector's dolphins are particularly susceptible to toxoplasmosis (Roe et al. 2013). Beyond direct mortality, toxoplasmosis can also have other biological consequences, such as behavioral changes, reduced reproductive rate, and neonatal loss. Because the fatal cases of T. gondii infection in this study were distributed throughout almost the entire range of the SI Hector's dolphin, exposure is probably occurring over broad areas. Overall, the available data suggest that disease, especially toxoplasmosis, is posing a threat to SI Hector's dolphins.

As with Maui's dolphins, a number of regulatory measures have been put in place to address bycatch of SI Hector's dolphins. As previously noted, by the 1980's, bycatch of Hector's dolphins in commercial and recreational gillnets was recognized as a serious issue in New Zealand (Dawson and Slooten 2005). In the South Island, a region of particular concern was the Pegasus Bay and Canterbury Bight area along the east coast, where there was a known high degree of overlap between inshore gillnetting and a locally abundant population of SI Hector's dolphins. To begin to quantify the level of bycatch, Dawson (1991b) conducted fisherman interviews during 1984-1988 and found that at least 230 SI Hector's dolphins had died due to entanglement in commercial and recreational gillnets in the Pegasus Bay and Canterbury Bight region during this period. Ages of entangled dolphins that were physically examined (n=43) ranged from younger than 1 year to about 20 years old, but a high proportion (63 percent) were 3 years old or younger, suggesting that younger dolphins are especially vulnerable to entanglement (Dawson 1991b). Overall, this level of bycatch (i.e., 230 over 4 years or about 57.5 entanglement mortalities per year), greatly exceeded the estimated population growth rate for this regional population (1.8−4.9 percent or 13.3−36.3 individuals per year; Dawson and Slooten 1988b, Slooten and Lad 1991). Subsequent analyses based on observer data, suggested that bycatch rates during this period (1984−1988) were actually much higher, averaging 100 dolphins per year (Davies et al. 2007).

Released in 2007, the TMP for Hector's dolphins identified set gillnetting as the greatest source of human-caused mortality of Hector's dolphins but also discussed how SI Hector's dolphins are incidentally captured in other gear types (MFish and DOC 2007b). Between 1921 and when the TMP was released, the DOC Incident Database indicates there had been 19 reports of Hector's dolphin mortalities due to trawls, which corresponds to 9 percent of the reported incidents with a known cause of death. All 19 of these reports occurred off the South Island within 2 nmi (3.7 km) of shore (MFish and DOC 2007b). Entanglement deaths of SI Hector's dolphins have also occurred in pot traps (e.g., rock lobster pots). Three such incidents were reported (in 1989, 1997, and 2004) and all occurred off Kaikoura, which is along the northeast coast of the South Island (MFish and DOC 2007b).

In reaction to the growing concern over bycatch of Hector's dolphins, the DOC established the Banks Peninsula Marine Mammal Sanctuary (BPMMS) in 1988. When it was first established, the sanctuary extended from Sumner Head to the Rakaia River and out to 4 nmi (7.4 km), covering an area of about 1,140 sq km. All gillnetting within the sanctuary (with some harbor exceptions) was prohibited from November through February, and additional gear restrictions that applied throughout the remainder of the year essentially resulted in a year-round ban of commercial gillnetting within the sanctuary (Dawson and Slooten 1993). Additional restrictions on recreational gillnetting, such as limiting fishing to daylight hours only and requiring continuous tending of nets, were also enacted to help further reduce bycatch mortality. Based on fisheries observer data, bycatch in gillnets continued to occur to the immediate north and south of the sanctuary at unsustainable levels (Baird and Bradford 2000, Dawson and Slooten 2005), and there was little evidence of improved survival of SI Hector's dolphins within the sanctuary (Cameron et al. 1999). In recognition that further protection of SI Hector's dolphins was needed, the sanctuary boundaries were expanded in 2008 to the north and south and out to 12 nmi (22.2 km) offshore, but no restrictions on fishing activities were applied to the area beyond the original 4 nmi (7.4 km) sanctuary boundary (MFish and DOC 2007b, DOC 2008). The sanctuary currently encompasses about 4,130 sq. km and 389 km of coastline.

In addition to the expansion of BPMMS, a series of fishing restrictions were put in place in 2008 to reduce bycatch of SI Hector's dolphins elsewhere around the South Island. Along the east and south coasts, from Cape Jackson in the Marlborough Sounds to Sandhill Point east of Fiordland, commercial gillnetting was banned out to 4 nmi (7.4 km) from shore, except at Kaikoura, where it was banned out to 1 nmi (1.9 km), and in Te Waewae Bay, where it is banned out to about 9 nmi (16.7 km) from shore (MFish 2008). Recreational gillnetting was allowed to continue in specified harbors and estuaries; and, in the case of flatfishing (e.g. for Rhombosolea spp.), gillnetting was permitted from April through September in the upper reaches of four harbors on Banks Peninsula, and in a similar area in Queen Charlotte Sound. Trawling was also prohibited along the east and south coasts from Cape Jackson to Sandhill Point out to 2 nmi (3.7 km), with an exception for trawls using a low headline net (used to target flatfish, MFish 2008). On the west coast of the South Island, again with some exceptions for certain harbors, inlets, estuaries, river mouths and lagoons, recreational set netting was banned year-round in waters out to 2 nmi (3.7 km) and from Cape Farewell on Farewell Spit to Awarua Point north of Fiordland; and commercial set netting was banned in the same area from December through February (MFish 2008). No trawling prohibitions were implemented for the west coast, and no fishing prohibitions were instituted along the north coast of the South Island. Since 2008, some amendments and changes to these fishery restrictions have been made for particular fishing activities and specific locations, but these changes are limited in scope and scale and are not discussed in detail here; see Manning and Grantz (2016) for additional detail.

Recently, in 2013, the DOC established the Akaroa Harbor Marine Reserve at the mouth of Akaroa Harbor on Banks Peninsula. This reserve includes about 512 hectares of habitat or about 12 percent of the total harbor area (www.doc.govt.nz/parks-and-recreation/places-to-go/canterbury/places/banks-peninsula-area/akaroa-marine-reserve/). As a result of this designation, which provides protection to all marine life within the reserve, fishing and any other taking of living or non-living marine resources is prohibited.

Despite the gradual increase in fishing restrictions around the South Island, exposure of SI Hector's dolphins to fishing activity remains fairly high throughout the South Island. On the west coast, where the dolphins are known to occur year-round and range to about 6.5 nmi (12.0 km) offshore (Mackenzie and Clement 2016), commercial gillnetting is prohibited only out to 2 nmi for just 3 months of the year, and there are no prohibitions on trawling. Survey sightings off the south coast indicate that the dolphins at least occasionally occur as far as 9.6 nmi (17.8 km) from shore and outside of protected areas (Clement et al. 2011). On the east coast, a substantial portion of the population is distributed well beyond the current closed areas, particularly in winter months (e.g., out to 18.2 nmi (33.7 km), Rayment et al. 2006, Rayment et al. 2010b); and gillnetting is still allowed within the BPMMS in waters between the original (4 nmi) and the extended offshore boundary (12 nmi).

Evidence of continued bycatch around the South Island is available in the DOC Incident Database (www.doc.govt.nz/our-work/hectors-and-maui-dolphin-incident-database/), which lists 13 entanglement mortalities between May 2009 and April 2015; and, in 2012, two Hector's dolphins were found stranded and wrapped in a gillnet just north of Christchurch (Slooten 2013, 2016). Unfortunately, the actual level of bycatch since 2008 is unknown and the database records provide only a subset of the total bycatch (Slooten and Dawson 2016). The majority of mortalities captured in the database are also listed as having unknown or indeterminable causes. Pichler et al. (2003) reported that of the dolphins caught by commercial and recreational gillnet fishers and brought in for necropsies, only about half have discernable net markings, contributing further to the underestimation of bycatch rates. Some additional data are available from commercial gillnetting observer programs. For example, based on low observer coverage of commercial gillnet vessels from May 2009 through April 2010 (about 15.8 percent of fishing days and about 13 percent of total sets), three SI Hector's dolphin mortalities were recorded from the east coast of the South Island (ECSI; MPI 2011b, Slooten and Davies 2012). Slooten and Davies (2012) analyzed these data and estimated that 23 SI Hector's dolphins (range of 4−48, CV = 0.21) were caught off the ECSI in that year.

Evidence from multiple modelling efforts suggests that SI Hector's dolphins will continue to decline due to bycatch under the current management measures. For example, for the most recent assessment of the BPMMS population, which has benefited from almost three decades of protection, Gormley et al. (2012) conducted a mark-recapture analysis of photographically identified dolphins (n=462) from 1986 to 2006 to compare annual survival rates before and after establishment of the sanctuary and associated gillnetting restrictions. Results indicated that between the two time periods, mean survival probability increased by 5.4 percent (from 0.863 to 0.917), which corresponds to a 6 percent increase in population growth. However, the population projections using the post-sanctuary survival rate also corresponded to a mean annual population decrease of 0.5 percent per year, with only 41 percent of the model simulations resulting in a population increase (Gormley et al. 2012). As noted by Gormley et al. (2012), this finding is consistent with other research indicating that the BPMMS is too small to allow recovery of this SI Hector's dolphin population (Rayment et al. 2006, Slooten et al. 2006b, Slooten and Dawson 2008, Rayment et al. 2010b, Slooten and Dawson 2010). A population viability analysis by Slooten and Dawson (2010), which relied on commercial gillnet observer data for a portion of the east coast to estimate bycatch (from Baird and Bradford 2000), projected that the west coast population would continue to decline (by just over 1,000 individuals by 2050), the Banks Peninsula population would continue to decline, and the remainder of the east coast population would slowly increase (by 450 individuals by 2050). In a review of risk assessments for SI Hector's dolphins, Slooten and Davies (2012) found that despite differing modelling approaches and assumptions applied, the risk assessments were highly consistent and were in general agreement that recovery of SI Hector's dolphins is unlikely under the current level of protections.

Overall, based on the available information, the existing measures to address the threat of bycatch of SI Hector's dolphins appear inadequate, and we conclude that bycatch continues to pose a significant risk to this subspecies. The risk of bycatch in commercial and recreational trawl and gillnet fisheries remains high given the known distribution of the dolphins relative to areas closed to fishing, especially on the west and north coasts (Faustino et al. 2013, Slooten 2013). Although bycatch of SI Hector's dolphins has been slowed by the fisheries restrictions implemented in 2008, available risk analyses indicate that population decline is expected to continue (Slooten and Dawson 2010, Gormley et al. 2012, Slooten and Davies 2012). Finally, enforcement of the existing regulations may be insufficient. Illegal fishing has been reported for Banks Peninsula (Slooten and Davies 2012), and illegal fishing is discussed in the TMP (MFish and DOC 2007b). There are insufficient data available to evaluate the level of compliance with existing regulations.

Several management measures have been implemented to address some of the threats associated with mining and petroleum industry activities. For both petroleum and minerals mining activities, a permit is generally required from local authorities under the Resource Management Act 1991 for mining activities within New Zealand's territorial sea (within 12 nmi from the coast). For mining activities beyond the territorial sea, the Environmental Protection Authority (EPA) manages the environmental effects of activity under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) and its regulations, which establish which activities require permits and impact assessments. Seismic surveys are permitted under the EEZ Act if they adhere to the Code of Conduct for Minimizing Acoustic Disturbance to Marine Mammals from Seismic Survey Operations (DOC 2013). In 2013, the DOC and MPI updated their seismic survey guidelines and announced a decision to make the code of conduct a mandatory standard. The mandatory code of conduct applies to Territorial waters, the EEZ of New Zealand, and within all marine mammal sanctuaries, and includes requirements for planning, operations, monitoring, and reporting. The 2013 code of conduct is currently undergoing review and may be further augmented to increase protections for Hector's dolphins and other species of concern. Discharge management plans associated with mining activities also must be approved under the Maritime Rules Part 200, Maritime New Zealand prior to drilling.

To help manage non-fishing-related threats to Hector's dolphins, the DOC expanded BPMMS in 2008 and established an additional three marine mammal sanctuaries- the Catlins Coast, Clifford and Cloudy Bay, and Te Waewae Bay Marine Mammal Sanctuaries (MMS). The Catlins Coast MMS lies along the south coast of the South Island (SCSI) between Three Brother's Point and Busy Point and extends 5 nmi to 6.9 nmi offshore. The sanctuary encompasses about 660 sq km of marine habitat and 161 km of coastline. The Clifford and Cloudy Bay MMS, which lies on the northeast coast, includes about 1,427 sq km and 338 km of coastline between Cape Campbell to Tory Channel, and extends 12 nmi offshore. The Te Waewae Bay MMS includes this entire SCSI bay and encompasses about 359 sq km of marine habitat and 113 km of coastline. Protections for SI Hector's dolphins that accompanied the expansion of BPMMS and the designation of these three additional sanctuaries were specific requirements for conducting seismic surveys. Included among the requirements for seismic surveys are mandatory notification prior to conducting surveys, mandatory reporting of any interactions with dolphins, and presence of qualified marine mammal observers on all survey ships (Gazette, 23 September 2008). There are no additional restrictions on mining activities within the sanctuaries.

Overall, while there is a clear regulatory process in place for reviewing and permitting mining activities, given the existing information, it is not clear whether existing management measures are adequate to minimize acoustic and other impacts to SI Hector's dolphins such that these activities do not pose a threat to the subspecies.

The dolphin-watching industry in New Zealand is regulated under the Marine Mammals Protection Regulations (MMPR), which were revised in 1992 in response to the growth in marine mammal-based tourism (Constantine (1999), citing Donoghue 1996). Among other provisions, these regulations govern the issuance of permits to commercial operators and, as discussed above, the behavior of vessels around dolphins. As a permit issuance criterion, commercial tour operators are required to ensure that their activities have “no significant adverse effect” on their targeted population (MMPR, 1992; Appendix 1.4). Given the high level of commercial dolphin watching operations in some portions of the SI Hector's dolphin's range, the repeat exposure of individual dolphins to vessels and/or `swim-with' activities, and the potential linkage to long-term biological consequences, it is possible that the current level of tourism is having a significant adverse impact on the subspecies. We find that there are insufficient data by which to verify that this permit issuance criterion is being met.

Pursuant to the MMPR, all boaters, both recreational and commercial, must adhere to certain rules when operating around marine mammals. For example, no more than 3 vessels and/or aircraft are allowed within 300 m of any marine mammal at the same time; speeds must be kept to `no wake' speeds when within 300 m of any marine mammal; swimmers are prohibited from swimming with dolphin pods with very young calves; and boats are prohibited from circling, obstructing, or cutting through any group (MMPR 1992, part 3). Compliance monitoring is limited and sufficient quantitative data are not available to assess compliance by commercial and recreational boaters with these regulations (MFish and DOC 2007b). Thus, it is difficult to determine whether these regulations, and the associated education and enforcement, adequately address boat-related disturbance and boat strikes, which are discussed further in the section below.

Other potential threats to SI Hector's dolphins include vessel noise, trophic effects of fishing, and climate change; however, there are no data available to assess how or whether these factors are contributing to the overall level of human-caused mortality or population trends. Boat strikes, however, are a documented source of mortality for Hector's dolphins, and the TMP identifies vessel traffic as a threat that can result in disturbance and mortality (MFish and DOC 2007b). Vessel traffic has increased around the South Island, especially in areas more densely populated by people, and reports of cetaceans with propeller scars have increased (Martinez 2010b). Stone and Yoshinaga (2000) reported the death of two calves on consecutive days in Akaroa Harbor. In 1999, two calves, both estimated to be younger than 4 weeks old, were recovered on successive days from Akaroa Harbor, and autopsy results confirmed that one calf was killed by collision with a boat and the other calf by a propeller strike (Stone and Yoshinaga 2000). Stone and Yoshinaga (2000) suggest that mother and calf pairs may be less capable of evading boats if they are approached. Although the specific cause of death was unknown, the TMP also states that there were an additional nine cases from around the South Island in which cause of death was some form of trauma (MFish and DOC 2007b). Overall, data are too limited to assess the rate of boat strikes, but existing information clearly indicates that boat strikes are contributing to the total level of human-caused mortality.

In our status review, data and information about demographic risks to Maui's dolphins were considered according to four categories—abundance and trends, population growth/productivity, spatial structure/connectivity, and genetic diversity. Each of these demographic threat categories was then rated according to the following qualitative scale:

Very low risk: It is unlikely that this factor contributes significantly to risk of extinction, either by itself or in combination with other demographic factors.

Low risk: It is unlikely that this factor contributes significantly to long-term or near future risk of extinction by itself, but there is some concern that it may, in combination with other demographic factors.

Moderate risk: This factor is likely to contribute significantly to long-term risk of extinction, but does not by itself constitute a danger of extinction in the near future.

High risk: This factor contributes significantly to long-term risk of extinction and is likely to contribute to short-term risk of extinction in the near future.

Very high risk: This factor by itself indicates danger of extinction in the near future. (Note: The term “significantly” is used here as it is generally defined—i.e., in a sufficiently great or important way as to be worthy of attention.)

In the sections below, we present information from Manning and Grantz (2016) to summarize the demographic risks facing Maui's dolphins.

Based on line-transect aerial surveys conducted in January 2004, Slooten et al. 2006a estimated a total population size of 111 Maui's dolphins (95 percent CI = 48-252). A more recent abundance estimate, derived through genetic mark-recapture analysis of samples collected in 2010 and 2011, is 55 dolphins over 1 year of age (95 percent CI: 48−69, Hamner et al. 2012b). This estimate is based on a genetic mark-recapture analysis using 37 biopsy samples collected in 2010 and 36 biopsy samples collected in 2011, which were genotyped across 20 variable microsatellite loci and analyzed in a closed-sample model (Lincoln-Peterson estimator with Chapman correction, Chapman 1951; Hamner et al. 2012b). Both of these estimates indicate that the abundance of Maui's dolphins is critically low.

Small populations can face higher risks of extinction from a range of factors, including stochastic demographic processes, genetic effects, and environmental catastrophes; and various theoretical abundance thresholds have been proposed as indicators of relative extinction risk (Gilpin and Soulé 1986, Allendorf et al. 1987, Mace et al. 2008). Both of the most recent abundance estimates for Maui's dolphins are well below commonly cited theoretical thresholds indicating a very high risk of extinction—e.g., 250 total individuals (Allendorf et al. 1987) and 250 mature individuals (Mace et al. 2008).

Although historical abundance estimates are not available, Slooten (2007a) estimated population abundances for 1970 by back-calculating, using a population estimate of 117 dolphins (CV= 0.44) and estimates of fishing effort and rate of dolphin bycatch. Results suggest that the abundance of Maui's dolphins in 1970 was about 1,729 dolphins (CV= 0.51, Slooten 2007, Slooten and Dawson 2010). Martien et al. (1999) also projected numbers back to 1970 using an earlier abundance estimate published by Dawson and Slooten (1988; i.e., 134 dolphins), and estimated there were about 448 Maui's dolphins in 1970. Although there are differences in the models, assumptions, input data, and results of these two analyses, these estimated abundances for 1970 suggest the Maui's dolphin population has declined by about 90 percent or more when compared to the current abundance estimate of 55 dolphins over 1 year of age.

Available evidence suggests that abundance of Maui's dolphins will continue to decline. For example, an annual rate of decline of 3.0 percent per year (95 percent CI: −11 percent to +6 percent) and an annual survival rate of 84 percent (95 percent CI = 0.75-0.90) was estimated by Hamner et al. (2012b). Although this result was somewhat equivocal given the large confidence interval, a projected decline is supported by the trend analysis conducted by Wade et al. (2012) using six different abundance estimates generated from 1985 to 2011. Wade et al. (2012) calculated a statistically significant declining trend of −3.2 percent per year from 1985 to 2011 (90 percent CI = −5.7 percent to −0.6 percent, p = 0.029).

Given a population abundance of fewer than 100 dolphins over one year of age, evidence of a very large historical decline, and evidence of possible continued decline, this demographic risk category was rated as posing a “very high risk” for the subspecies.

Fecundity (i.e., the number of female offspring per female per breeding season) of Maui's dolphins is relatively low (0.165 to 0.25, Secchi et al. 2004b), with females having calves every two to four years after reaching maturity at about 7 years of age (Slooten and Dawson 1994, Dawson 2009). Due to an estimated lifespan of only about 22 years, later maturity, and low fecundity, Maui's dolphins are considered to have a low intrinsic rate of population growth (Dawson 2009). The annual mortality rate is estimated to be about 17 percent per year for dolphins 1 year of age and older (Hamner et al. 2012b), and, as mentioned above, modelling results suggest a declining population trend (Wade et al. 2012). Overall, this demographic factor was found to constitute a “high risk” for Maui's dolphin.

Maui's dolphins are thought to have once ranged along the entire coast of the North Island (Russell 1999, Dawson et al. 2001b, Baker et al. 2002, Du Fresne 2010). The dolphins now occur only off the west coast of the North Island. While there is no indication of spatial structuring within the subspecies, data do indicate that home ranges of individuals are probably small (e.g. 35.5 km (SE= 4.03), Oremus et al. 2012), and that movements over 100 km are probably rare (Hamner et al. 2012b). Overall, the available information indicates that substantial range contraction has already occurred, gene flow will be limited among populations of Hector's dolphins that are over 100 km apart, and any fragmentation of the remaining population would be a serious concern. Overall, this demographic factor was rated as posing a “moderate risk” for Maui's dolphins.

Genetic diversity in Maui's dolphins is currently very low. Pichler (2002) analyzed microsatellite DNA for Maui's dolphins across six loci (n = 4 to 12) and reported an average of 1.5 alleles per locus, three of which were fixed (i.e., 1 allele), and an overall low heterozygosity (0.083−0.25). Analyses of contemporary mitochondrial DNA (mtDNA) samples also indicate a single maternal lineage (Pichler 2002, Hamner et al. 2012a). This level of haplotype diversity (i.e., h = 0) is well below the typical range of 0.70−0.92 for other more abundant odontocete species (Pichler and Baker 2000) and is only seen in several other rare marine mammals (e.g., vaquita (Phocoena sinus), north Atlantic right whale (Eubalaena glacialis), Dawson et al. 2001b).

Maui's dolphins are reproductively isolated from SI Hector's dolphins, and there has been no recent gene flow between the subspecies (Pichler et al. 2001, Hamner et al. 2012a). Based on analyses of mtDNA, the North Island subspecies has been isolated from the South Island populations for up to 16,000 years (Pichler et al. 2001). Hamner et al. (2012a) noted that some degree of inbreeding is inevitable for such a small, isolated population and also suggested that the significant deviation from a 1:1 sex ratio they observed for stranded Maui's dolphins, due to an excess of females in their sample (41 females of 68 total Maui's dolphins), may be an indication of deleterious inbreeding effects.

Overall, Maui's dolphins have very low genetic diversity, are genetically isolated, and are vulnerable to inbreeding depression and the accumulation of deleterious mutations, which are serious concerns that can hasten the extinction of small populations (Lunch et al. 1995, Frankham 2005, O'Grady et al. 2006). This demographic factor was rated as a “high risk” for Maui's dolphins.

In the sections below, we present information from Manning and Grantz (2016) on the demographic risks facing SI Hector's dolphins. As with Maui's dolphins, demographic risks to SI Hector's dolphins were considered according to the same four categories (abundance and trends, population growth/productivity, spatial structure/connectivity, and genetic diversity) and rated according to the same qualitative scale as defined above.

Various surveys have been completed for portions of the SI Hector's dolphin's range, each producing a separate, regional abundance estimate for the associated portion of the subspecies' range. (See Manning and Grantz (2016) for discussion of older surveys and abundance estimates.) The most recent abundance estimate for the west coast of the South Island (WCSI) is based on aerial surveys conducted by Mackenzie and Clement (2016) in 2014/2015 from Farewell Spit south to Milford Sound. These surveys included substantial effort in waters beyond 4 nmi (7.4 km) from shore and included an “outer” survey zone between 12 nmi and 20 nmi from shore (22.2-37.0 km, MacKenzie and Clement 2016). Based on these surveys, summer and winter abundance estimates of 5,490 dolphins (95% CI = 3,319-9,079) and 5,802 dolphins (95% CI = 3,879-8,679), respectively, were estimated using mark-recapture distance sampling after correcting for availability bias (or how “available” the dolphins are at or near the surface where they can be observed; Mackenzie and Clement 2016)). The most recent surveys of the north (NCSI) and east coasts (ECSI) of the South Island were conducted in the summer of 2012/2013 and winter 2013 and extended from Farewell Spit to Nugget Point and extended offshore to 20 nm (37.0 km; MacKenzie and Clement 2014). These intensive aerial surveys, which had a similar design as the WCSI surveys, produced an estimated summer abundance of 9,728 dolphins (95 percent CI= 7,001-13,517) and an estimated winter abundance of 8,208 dolphins (95 percent CI = 4,888-13,785, MacKenzie and Clement 2014, Mackenzie and Clement 2016). The most recent surveys of the SCSI produced an abundance estimate of 238 dolphins (95 percent CI = 113-503, Clement et al. 2011, Mackenzie and Clement 2016). This abundance estimate was based on two aerial surveys completed in March and August 2010 from Puysegur Point to Nugget Point and extended out to the 100-m depth contour (Clement et al. 2011). Following completion of the last of these three regional survey efforts, Mackenzie and Clement (2016) re-analyzed the data and, using the sum of the averages of the summer and winter abundance estimates from these surveys, calculated a total population estimate of 14,849 SI Hector's dolphins (95% CI = 11,923-18,492).

Despite the large confidence intervals associated with some of these recent abundance estimates, the data indicate that the total abundance of SI Hector's dolphins is greater than commonly applied theoretical abundances used as indicators of a high risk of extinction—e.g., 2,500 total individuals (Allendorf et al. 1987) and 1,000 mature individuals (Mace et al. 2008)—suggesting that SI Hector's dolphins are not at high risk of extinction due to abundance alone.

Populations of SI Hector's dolphins have, however, experienced substantial declines and available information suggests that the subspecies is likely to continue declining (Slooten and Lad 1991, Slooten et al. 1992, Burkhart and Slooten 2003). SI Hector's dolphin populations are estimated to have experienced declines of 20-73 percent since the 1970s following the expansion of commercial gillnetting in New Zealand (Slooten 2007, Davies et al. 2008, Slooten and Dawson 2010). Evidence of a historical decline is also provided by the findings of Pichler and Baker (2000), who detected a significant decline in mtDNA diversity (from h = 0.65 to h = 0.35, p<0.05) for ECSI Hector's dolphins in a comparison of contemporary (n=108) samples to historical samples (n=55) dating back to 1870. These authors suggest that the high rate of decline in mitochondrial DNA diversity reflects a high rate of population decline driven by unsustainable levels of bycatch mortality. While there is strong evidence that adult survival in the ECSI population has improved following the implementation of fishing restrictions at BPMMS (0.863 (95 percent CI = 0.647-0.971) pre-sanctuary versus 0.917 (95 percent CI = 0.802-0.984) post-sanctuary), the improved survival rate still corresponds to an estimated decline of 0.5 percent per year (Gormley et al. 2012). Results of modelling efforts by Slooten and Davies (2012) also suggest continued population declines over the next 50 years if fisheries management practices remain the same.

Overall, this demographic factor was rated as posing a “moderate risk” for SI Hector's dolphins.

Given an estimated lifespan of about 22 years, relatively late maturity (at 7-9 years), and low fecundity (0.165 to 0.25), Hector's dolphins are considered to have a low intrinsic population growth rate (Slooten 1991, Slooten and Lad 1991, Secchi and Fletcher 2004, Secchi et al. 2004b, Dawson 2009). Females may produce only four to seven calves over their lifetime. Estimates of the survival rate of SI Hector's dolphins ≥ 1 year old have ranged from 0.77 to 0.89 (Slooten and Lad 1991, Slooten et al. 1992, Slooten and Dawson 1994, Cameron et al. 1999). Based on simple Leslie matrix models, Slooten and Ladd (1991) estimated a maximum population growth rate of 0.018 to 0.049; whereas, Secchi and Fletcher (2004) estimated a much lower population growth rate of 0.0065. Projections of population growth, given estimated levels of human-caused mortality, have varied depending on the modelling approach and the study population, but results are generally consistent in indicating a continuing population decline (Slooten and Dawson 2010, Slooten and Davies 2012). Essentially, the available information indicates that population growth is too low to compensate for current mortality rates, and that mortality needs to be reduced in order to allow populations around the South Island to recover from past declines due to bycatch (Slooten 2013).

This demographic factor was rated as posing a “moderate risk” for SI Hector's dolphins.

Analyses of both mtDNA and microsatellite DNA indicate the existence of three distinct regional populations of SI Hector's dolphins—east, west, and south coast populations (Pichler et al. 1998, Pichler 2002, Hamner et al. 2012a). Each regional population is characterized by one or two high frequency mtDNA haplotypes, and hierarchical analyses of both mtDNA and microsatellite DNA data indicate strong genetic differentiation among the three regional populations (mtDNA FST = 0.321, p<0.001; Phi ST = 0.395; microsatellite FST = 0.058, p<0.001; Hamner et al. 2012a). There appears to be additional genetic structuring on the south coast, as samples from Te Wæwæ Bay and Toetoe Bay, locations separated by only about 100 km of coastline, were significantly differentiated based on both mtDNA (FST = 0.136, p = 0.03) and microsatellite DNA (FST = 0.043, p = 0.005). Fine-scale population structuring has also recently been detected in ECSI Hector's dolphins sampled from adjacent populations on either side of Kaikoura Canyon (Hamner et al. 2016). Analysis of both mtDNA (FST = 0.081, p<0.001) and microsatellite DNA (FST = 0.013, p<0.001) indicated a low but statistically significant level of genetic differentiation between these adjacent populations (Hamner et al. 2016).

Estimated migration rates for males and females among the three main regional populations are low and appear to be asymmetrical (Pichler 2002, Hamner et al. 2012a). Based on mtDNA, Pichler (2002) estimated long-term migration rates of less than one female per generation among regions, except between the west and south coasts where female migration rates were estimated to be between 2.7 and 3.7 female migrants per generation. Based on analyses of both mtDNA and microsatellite DNA, there also appears to be a low level of male-mediated gene flow, with the highest exchange appearing to occur from the south coast to the east coast (Hamner et al. 2012a). Analysis of levels of genetic differentiation among sample locations within regions suggests a “stepping-stone” model of gene flow in which there are low levels of migration between neighboring populations over distances shorter than 100 km and much more limited gene flow among the three larger regional populations (Pichler 2002; Hamner et al. 2012a). Hamner et al. (2012a) concluded that very rare migration events are facilitating gene flow across the roughly 100-370 km distances separating the three larger regions. Overall, these findings are consistent with a priori expectations of low gene flow over larger spatial scales given the small estimated home ranges (typically 30 km-60 km) and high degree of site fidelity observed in SI Hector's dolphins (Bejder and Dawson 2001, Bräger et al. 2002, Rayment et al. 2009a). Although longer-range movements (> 400 km) of SI Hector's dolphins do appear to occur, at least on occasion, there is as yet no indication that such movements are associated with mating (Hamner et al. 2012b, Hamner et al. 2014a).

How the existing population structure and connectivity of SI Hector's dolphin populations influence extinction risk is unclear. The current distribution of SI Hector's dolphins as multiple populations with a low level of connectivity could potentially provide protection from local extirpation (for example, by a catastrophic event) while allowing for local adaptation, which could ultimately benefit long-term survival (Franklin 1980). Alternatively, restricted and asymmetrical dispersal among populations may mean there is very limited potential for one population to buffer against the loss of another local population and prevent further fragmentation (Pichler et al. 1998, Pichler 2001). The ongoing human-caused mortality and the slow population growth rate of SI Hector's dolphins are factors that favor this latter interpretation.

Overall, this demographic factor was rated as posing a “moderate risk” to SI Hector's dolphins.

Relative to other abundant dolphin species, genetic diversity of SI Hector's dolphins is low (Pichler and Baker 2000; Pichler 2002). Pichler and Baker (2000) reported haplotype (h) and nucleotide (π) diversity estimates of 0.35 and 0.0030, respectively, for ECSI Hector's dolphins (n = 46) and 0.66 and 0.0040 for WCSI Hector's dolphins (n = 47), which are low compared to previously reported estimates for other, more abundant odontocetes (e.g., h = 0.70-0.92 and π > 0.01). Diversity estimates based on mtDNA analyses by Hamner et al. (2012a) were somewhat higher for both the ECSI (h = 0.51, π = 0.0039) and WCSI (h = 0.72, π = 0.0049, n = 154) populations, possibly as a consequence of larger sample sizes, but they are still relatively low. The low genetic diversity observed may reflect restricted gene flow among populations and a consequent increase in genetic drift within populations.

As noted above, analysis of mtDNA samples for ECSI Hector's dolphins by Pichler and Baker (2000) indicated a significant decline in mitochondrial diversity between historical samples from 1870-1987 (h = 0.65 and π = 0.0084, n = 36) and more contemporary samples from 1988-1998 (h = 0.35 and π = 0.0030, n = 46). A trend analysis of mtDNA diversity also indicated full loss of diversity within the next 20 years (Pichler and Baker 2000).

Guidelines commonly cited and applied in conservation biology are that, in a finite population and ignoring other ecological considerations, a minimum effective population size of at least 50 individuals is required to prevent the harmful effects of inbreeding, and an effective population size of at least 500 individuals is required to prevent the accumulation of deleterious recessive alleles and maintain genetic diversity over hundreds of years (Franklin 1980, Soulé 1980, Gilpin and Soulé 1986, Allendorf et al. 1987). Other theoretical analyses, however, suggests that these thresholds are too low and that well over 1,000 breeding adults per generation may instead be necessary to avoid extinction by “mutational meltdown” over time periods of 100 or more generations (Lynch et al. 1995). Given that effective population size is often about 1/5 to 1/3 of a population's total size (Frankham 1995), a conservative estimate of the effective population size for SI Hector's dolphins could be roughly estimated as 2,385 to 3,698 dolphins (calculated using 1/5 of the 95 percent CI abundance estimates). Because these rough estimates are well above the thresholds of 50, 500, and 1,000 associated with inbreeding, loss of genetic diversity, and mutational meltdown, we conclude that the SI Hector's dolphin is not at high risk of extinction in the near-term due to its current genetic health.

Given the evidence of low and potentially declining genetic diversity, this demographic factor was rated as being a “moderate risk.”

In addition to the regulatory measures discussed above (e.g. fishing and boating regulations, sanctuary designations), we considered other efforts being made to protect Hector's dolphins. We considered whether such protective efforts, as summarized below, alter our findings regarding the status of Maui's and Hector's dolphins.

To help raise awareness and educate boaters about the regulations governing the operation of vessels around marine mammals, the DOC recently initated the ‘Sustainable Marine Mammal Actions in Recreation and Tourism'—or SMART program. Commercial operators who participate in the training course through this program are labelled `SMART operators' and are promoted to tourists as such. A training course for recreational boaters is also available. While this proactive program has likely improved boater awareness and on-the-water behavior to some degree, we have no data to evaluate the extent to which boater-associated impacts on Hector's dolphins have been reduced, and the available information indicates that dolphin-watching and `swim-with' activities are not benign activities even when conducted according to the existing regulations.

To help minimize fisheries interactions and bycatch, some voluntary practices have been used in some areas around the South Island since 2002. These measures include deployment of pingers and other modifications to fishing activities. However, the extent to which such voluntary measures are being implemented is unclear, and the efficacy of pingers in reducing bycatch of Hector's dolphins has not yet been clearly established (Dawson 1998, Stone et al. 2000b). The MPI also established a hotline for reporting violations of fishing restrictions; however, there are no data available to evaluate whether the hotline has contributed to improved enforcement or compliance with existing fishing regulations.

Although these efforts may be providing measurable protection for Hector's dolphins, there is no indication that these efforts are ameliorating threats, particularly the threats of bycatch and disease, such that the extinction risk of either subspecies is reduced. Therefore, we conclude that these protective efforts do not alter the extinction risk for either Maui's or SI Hector's dolphins. We are not aware of any other conservation measures for these subspecies and are soliciting additional information on any relevant conservation efforts through the public comment process on this proposed rule (see Public Comments Solicited below).

Maui's dolphins are currently at critically low abundance, and face additional demographic risks due to greatly reduced genetic diversity and a low population growth rate. Past declines, on the order of about 90 percent, have been driven largely by bycatch in gillnets. Maui's dolphins continue to face threats of bycatch, disease, and mining and seismic disturbances; and available evidence suggests the population will continue to decline despite existing management protections. We conclude that Maui's dolphin is currently facing a high risk of extinction throughout its range and is likely to become extinct. Therefore, we find that this subspecies meets the definition of an endangered species under the ESA. This conclusion is consistent with previous risk assessments for Maui's dolphin, which have concluded this subspecies is facing an extremely high risk of extinction in the wild and will recover only if sources of anthropogenic mortality are eliminated (Slooten et al. 2006; MFish and DOC 2007b, Baker et al. 2010). Concern over abundance and trends for Maui's dolphin has previously led to its classification as “nationally critical” under the New Zealand Threat Classification System, which is the most threatened status within this classification system (Baker et al. 2010).

Under the New Zealand Threat Classification System, the SI Hector's dolphin has been formally classified as “nationally endangered,” which is the second-most threatened status within this classification system (Baker et al. 2010). The qualifier “conservation dependent” is also applied to SI Hector's dolphins, meaning that the subspecies is likely to move to the higher category of “nationally critical” if current management were to cease (Townsend et al. 2008, Baker et al. 2010).

Our review of the best available data indicates that the SI Hector's dolphin has experienced substantial population declines since the 1970s, has relatively low genetic diversity, a low intrinsic population growth rate, and a fragmented population structure. Although historical data are lacking, Slooten (2007a) estimated that the SI Hector's dolphin population has declined by about 73 percent between 1970 and 2007, and available population viability analyses indicate that the SI Hector's dolphin is likely to continue to decline unless bycatch mortality is reduced (Davies et al. 2008, Slooten and Davies 2012, Slooten 2013). Gormley et al. (2012) estimated that the Banks Peninsula population, which has benefited from almost three decades of protection, would continue to decline at a rate of about 0.5 percent per year despite significantly improved survival rates. Assuming an existing population abundance of about 14,849 dolphins (95 percent CI = 11,923-18,492), a constant rate of decline of 0.5 percent per year for the subspecies as a whole could result in a 50 percent decline in the population in about 138 years and an 80 percent decline in about 321 years. These are simply estimates based on the limited data available, however, and they do not establish any specific thresholds for determining when the subspecies may be in danger of extinction throughout all or a significant portion of its range. The actual rate of decline of the subspecies remains unclear given the very limited bycatch mortality data available. A trend analysis based on survey data is also confounded by the fact that surveys have covered different portions of the range and have dramatically increased in sophistication and geographical scope over time. Thus, a precise analysis of the rate of decline and projection of time to extinction given multiple threats and demographic considerations is not currently possible.

Current levels of bycatch are contributing to the decline of this subspecies (Slooten and Davies 2012). Additional, lesser threats, such as disease and tourism impacts, are likely exacerbating the rate of decline and thereby contributing to the overall extinction risk of this subspecies. Given recent abundance estimates for the total population and evidence of a slowed rate of decline following expanded fisheries management measures, we find that this subspecies is not facing an imminent risk of extinction. However, historical declines and the projected decline for most populations, combined with a low population growth rate, low genetic diversity, limited population connectivity, and the ongoing threats of bycatch, disease, and tourism, provide a strong indication that this subspecies is likely to become an endangered species within the foreseeable future assuming a status quo in conservation. We therefore propose to list this subspecies as threatened under the ESA.

Conservation measures provided for species listed as endangered or threatened under the ESA include the development and implementation of recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); a requirement that Federal agencies consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of designated critical habitat (16 U.S.C. 1536); and prohibitions on “taking” (16 U.S.C. 1538). The prohibitions on “take,” including export and import, automatically apply to species listed as endangered. Prohibitions on take do not apply to species listed as threatened unless protective regulations are issued under section 4(d) of the ESA (16 U.S.C. 1533(d)). In the case of threatened species, section 4(d) of the ESA leaves it to the Secretary's discretion whether, and to what extent, to extend take prohibitions to the species. Section 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. We are not proposing such regulations at this time but may consider potential protective regulations pursuant to section 4(d) for the SI Hector's dolphin in a future rulemaking.

Recognition of the species' imperiled status through listing may also promote conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.

On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service (USFWS) published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. The intent of this policy is to increase public awareness of the potential effects of species listings on proposed and ongoing activities.

If the Maui's dolphin is listed as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to this subspecies. Section 9(a)(1) includes prohibitions against the import, export, use in foreign commerce, and “take” of the listed species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Activities that could result in a violation of section 9 prohibitions for Maui's dolphins include, but are not limited to, the following:

(1) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity;

(2) Selling or offering for sale in interstate commerce any part, except antique articles at least 100 years old; and

(3) Importing or exporting Maui's dolphins or any parts of these dolphins.

Whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed here may in fact constitute a violation.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and joint NMFS/USFWS regulations require Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Section 7(a)(4) (16 U.S.C. 1536(a)(4)) of the ESA and NMFS/USFWS regulations also require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that are likely to result in the destruction or adverse modification of proposed critical habitat of those species. It is unlikely that the listing of these subspecies under the ESA will increase the number of section 7 consultations, because these subspecies occur outside of the United States and are unlikely to be affected by Federal actions.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed if such areas are determined to be essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat cannot be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)). Maui's and SI Hector's dolphins are endemic to New Zealand and do not occur within areas under U.S. jurisdiction. There is no basis to conclude that any unoccupied areas under U.S. jurisdiction are essential for the conservation of either subspecies. Therefore, we do not intend to propose any critical habitat designations for either subspecies.

We must base our final listing determination on the best scientific and commercial data available. We cannot consider the economic effects of a listing determination. To help ensure that any final action resulting from this proposed rule will be accurate and based on the best available data, we are soliciting comments from the public, other concerned governmental agencies, the scientific community, industry, and any other interested parties on the draft status review report and proposed rule. See DATES and ADDRESSES for information on how to submit comments.

Promulgation of any final regulation to list these subspecies will take into consideration the comments and any additional data we receive during the comment period, and this process may lead to a final regulation that differs from this proposal. We are especially seeking information regarding the following topics:

(1) New or updated data regarding threats to Maui's and SI Hector's dolphins, especially bycatch rates in commercial and recreational fisheries, bycatch in fishing gear types other than gillnets, compliance with fishing regulations, and trends in disease prevalence;

(2) New or updated population viability analyses that reflect the most recent abundance estimates for the subspecies;

(3) Current or planned activities within the range of these subspecies and their possible impacts on these species; and,

(4) Conservation efforts that are addressing threats to either subspecies.

We request that all information be accompanied by: (1) Supporting documentation, such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing a minimum peer review standard. We solicited peer review comments on the draft status review report (Manning and Gantz 2016) from three scientists with expertise on Hector's dolphins. We received and reviewed comments from these scientists, and their comments are incorporated into the draft status review report and this proposed rule. Their comments on the status review are summarized in the peer review report and available at www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.

A complete list of the references used in this proposed rule is available upon request (see ADDRESSES).

Section 4(b)(1)(A) of the ESA restricts the information that may be considered when assessing species for listing and sets the basis upon which listing determinations must be made. Based on the requirements in section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), we have concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

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 proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant governmental agencies in New Zealand, and they will be invited to comment. We will confer with the U.S. Department of State to ensure appropriate notice is given to New Zealand. As the process continues, we intend to continue engaging in informal and formal contact with the U.S. State Department, giving careful consideration to all written and oral comments received.

For the reasons set out in the preamble, we propose to amend 50 CFR parts 223 and 224 as follows: