[Federal Register Volume 89, Number 35 (Wednesday, February 21, 2024)]
[Rules and Regulations]
[Pages 12980-12986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03162]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 240208-0039; RTID 0648-XR118]


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

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are issuing a final rule to list the Atlantic 
humpback dolphin (Sousa teuszii) as endangered under the Endangered 
Species Act (ESA), in response to a petition from the Animal Welfare 
Institute, the Center for Biological Diversity, and VIVA Vaquita. We 
have reviewed the status of the Atlantic humpback dolphin, including 
efforts being made to protect the species, and considered public 
comments submitted on the proposed listing rule as well as new 
information received since publication of the proposed rule. Based on 
all of this information, we have determined that the Atlantic humpback 
dolphin warrants listing as an endangered species. We will not 
designate critical habitat for this species, because the geographical 
areas occupied by this species are entirely outside U.S. jurisdiction.

DATES: This final rule is effective March 22, 2024.

ADDRESSES: References and documents supporting this final rule are 
available online at: https://www.fisheries.noaa.gov/species/atlantic-humpback-dolphin#conservation-management, or may be obtained by 
contacting Heather Austin, Endangered Species Conservation Division, 
NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, 
Silver Spring, MD 20910. Public comments are available online at 
https://www.regulations.gov, search docket number NOAA-NMFS-2021-0110 
(note: copying and pasting the FDMS Docket Number directly from this 
document may not yield search results).

FOR FURTHER INFORMATION CONTACT: Heather Austin, NMFS Office of 
Protected Resources, <a href="/cdn-cgi/l/email-protection#c088a5a1b4a8a5b2ee81b5b3b4a9ae80aeafa1a1eea7afb6"><span class="__cf_email__" data-cfemail="521a3733263a37207c132721263b3c123c3d33337c353d24">[email protected]</span></a>, 301-427-8422.

SUPPLEMENTARY INFORMATION:

Background

    On September 8, 2021, we received a petition from the Animal 
Welfare Institute, the Center for Biological Diversity, and VIVA 
Vaquita to list the Atlantic humpback dolphin (Sousa teuszii) as a 
threatened or endangered species under the ESA. On December 2, 2021, we 
published a 90-day finding for the Atlantic humpback dolphin with our 
determination that the petition presented substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted (86 FR 68452). We also announced the initiation of a status 
review of the species, as required by section 4(b)(3)(A) of the ESA, 
and requested information to inform the agency's decision on whether 
this species warrants listing as endangered or threatened under the 
ESA. On April 7, 2023, we published a proposed rule to list the 
Atlantic humpback dolphin as endangered (88 FR 20829). We requested 
public comments on the information in the proposed rule and associated 
status review during a 60-day public comment period, which closed on 
June 6, 2023.
    Following publication of the proposed rule (88 FR 20829), we became 
aware of cartographic guidance bulletin 38, issued by the Department of 
State's Office of the Geographer and Global Issues on December 16, 
2020, and determined that the preamble to our proposed rule was not in 
alignment with the guidance. Thus, we issued a correction notice to 
remove all references to ``Western Sahara'' from the proposed rule's 
preamble and identify Morocco as a country within the species' range, 
per the guidance (88 FR 46727). Additionally, the correction notice 
included changes to the ``International Regulatory Mechanisms'' 
subsection of the proposed rule resulting from the inclusion of Morocco 
as a range country for the Atlantic humpback dolphin (88 FR 46727). We 
also reopened the public comment period for the proposed rule for an 
additional 60 days, which closed on September 18, 2023, to allow the 
Kingdom of Morocco, as well as any other interested person, an 
opportunity to provide comments on our proposal. We found that bringing 
the preamble to the proposed rule to list the Atlantic humpback dolphin 
into alignment with the guidance bulletin presented good cause for 
reopening the public comment period, in accordance with 50 CFR 
424.16(c)(2).
    This final rule provides a discussion of the public comments 
received in response to the proposed rule, the correction notice, and 
our final determination on the petition to list the Atlantic humpback 
dolphin under the ESA.

Listing Determinations Under the ESA

    We are responsible for determining whether species are threatened 
or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this 
determination, we first consider whether a group of organisms 
constitutes a ``species,'' which is defined in section 3 of the ESA to 
include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). On 
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; 
together, the Services) adopted a policy describing what constitutes a 
distinct population segment (DPS) of a taxonomic species (``DPS 
Policy,'' 61 FR 4722). The joint DPS Policy identifies two elements 
that must be considered when identifying a DPS: (1) the discreteness of 
the population segment in relation to the remainder of the taxon to 
which it belongs; and (2) the significance of the population segment to 
the remainder of the taxon to which it belongs.
    Section 3 of the ESA defines an endangered species as any species 
which is in danger of extinction throughout all or a significant 
portion of its range and a threatened species as one which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range (16 U.S.C. 1532(6), 16 U.S.C. 
1532(20)). Thus, we interpret an ``endangered species'' to be one that 
is presently in danger of extinction. A ``threatened species,'' on the 
other hand, is not presently in danger of extinction, but is likely to 
become so in the foreseeable future (that is, at a later time). In 
other words, the primary statutory difference between a threatened 
species and an endangered species is the timing of when a species may 
be in danger of extinction, either presently (endangered) or not 
presently but within the foreseeable future (threatened).
    Under section 4(a)(1) of the ESA and our implementing regulations, 
we must determine whether any species is endangered or threatened as a 
result of any one or a combination of any of the following factors: (A) 
the present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory

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mechanisms; or (E) other natural or manmade factors affecting its 
continued existence (16 U.S.C. 1533(a)(1); 50 CFR 424.11(c)). We are 
also required to make listing determinations based solely on the best 
scientific and commercial data available, after conducting a review of 
the species' status and after taking into account efforts, if any, 
being made by any state or foreign nation (or subdivision thereof) to 
protect the species (16 U.S.C. 1533(b)(1)(A)).
    In assessing the extinction risk of the Atlantic humpback dolphin, 
we considered demographic risk factors, such as those developed by 
McElhany et al. (2000), to organize and evaluate the forms of risks. 
The approach of considering demographic risk factors to help frame the 
consideration of extinction risk has been used in many of our previous 
status reviews (see https://www.nmfs.noaa.gov/pr/species for links to 
these reviews). Under this approach, the collective condition of 
individual populations is considered at the species level according to 
four demographic risk factors: (1) abundance; (2) growth rate and 
productivity; (3) spatial distribution and connectivity; and (4) 
genetic diversity. These risk factors reflect concepts that are well-
founded in conservation biology and that individually and collectively 
provide strong indicators of extinction risk.
    Scientific conclusions about the overall risk of extinction faced 
by the Atlantic humpback dolphin under present conditions and in the 
foreseeable future are based on our evaluation of the species' 
demographic risks and section 4(a)(1) threat factors. Our assessment of 
overall extinction risk considered the likelihood and contribution of 
each particular factor, synergies among contributing factors, and the 
cumulative impact of all demographic risks and threats on the species.
    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into consideration those 
efforts, if any, being made by any State or foreign nation, or any 
political subdivision of a State or foreign nation, to protect the 
species. Therefore, prior to making a listing determination, we also 
assessed protective efforts to determine if they are adequate to 
mitigate the existing threats.

Summary of Comments

    In response to our request for comments on the proposed rule and 
the subsequent correction notice, we received a total of 18 public 
comments from non-governmental organizations, foreign governments, and 
individual members of the public. All comments were supportive of the 
proposed endangered listing for the Atlantic humpback dolphin and the 
large majority provided no new or substantive data or information 
relevant to the listing of the Atlantic humpback dolphin that was not 
already considered in the status review report (Austin 2023) and 
proposed rule. We have considered all public comments, and we provide 
responses to all relevant issues raised by comments as summarized 
below.
    Comment 1: All public comments received were supportive of the 
proposed listing determination for the Atlantic humpback dolphin as 
endangered. A majority of these comments were general statements 
expressing support for listing the Atlantic humpback dolphin as 
endangered under the ESA. A few commenters described general 
repercussions within the ecosystem of the coastal Atlantic waters of 
western Africa, if this species went extinct. Most of these comments 
were not accompanied by information or references. Several of the 
comments were accompanied by information that is consistent with, or 
cited directly from, our proposed rule or draft status review report 
(Austin 2023).
    A number of commenters reiterated information and many of the 
points from the draft status review report (Austin 2023) and proposed 
rule for the Atlantic humpback dolphin, notably the species small 
population size, fragmented distribution, restricted range in coastal 
Atlantic waters of western Africa, the severity of range-wide threats 
(fisheries bycatch and human use, coastal development, and the 
inadequacy of existing regulatory mechanisms to protect the dolphin), 
and the need for more stringent regulations to protect the species. In 
addition, a couple of commenters reiterated information from the draft 
status review report (Austin 2023) and proposed rule regarding the 
species' conservation efforts to date, most notably the recent 
assessment by the International Union for Conservation of Nature (IUCN) 
which classified the Atlantic humpback dolphin into the Red List 
category of ``Critically Endangered'' in 2017, and the conservation 
efforts by the Convention on the Conservation of Migratory Species of 
Wild Animals (CMS or Bonn Convention) and West African Cetacean 
Research and Conservation Programme (WAFCET) since the 1990s.
    Several commenters also noted that this listing would: (1) help 
raise awareness for the species; (2) help scientists and 
conservationists protecting the Atlantic humpback dolphin to raise 
funds for projects aimed at conserving this species and its habitat; 
(3) foster international cooperation and facilitate increased 
collaboration to improve outcomes of any conservation actions; (4) 
facilitate the enhancement of legal protections in the national laws of 
the species' range countries (especially relating to laws addressing 
bycatch); and (5) strengthen the monitoring, control, and surveillance 
regimes in each range country. Additionally, one commenter noted that 
protecting this species under the ESA would help encourage commercial 
farmers and industries within this species' habitat to be conscientious 
about avoiding the Atlantic humpback dolphin during fishing activities, 
which would hopefully lead to more sustainable and ethical fishing 
practices to protect other wildlife as well.
    Response: We acknowledge all of these comments in support of our 
listing determination and the public interest in conserving the 
Atlantic humpback dolphin.
    Comment 2: We received a comment letter from a group of commenters 
that stated that the final rule on fish and fish product import 
provisions of the Marine Mammal Protection Act (MMPA import rule) (81 
FR 54389, August 15, 2016) may help to provide external motivation for 
Atlantic humpback dolphin range countries that export fish and fish 
products to the United States. The commenters also provided some new 
scientific and commercial information related to the threat of 
fisheries bycatch to the Atlantic humpback dolphin off the coasts of 
Mauritania and Senegal. Specifically, the commenters emphasized that 
there are records of Atlantic humpback dolphins being bycaught off the 
coasts of Mauritania and Senegal based on reports by Gascoigne et al. 
(2021a, b, and c), and these reports also note that most coastal 
fisheries have high overlap with this species' habitat preferences. The 
commenters discussed the Marine Stewardship Council (MSC), a non-profit 
organization which aims to set standards for sustainable fishing. 
Fisheries that wish to demonstrate that they are well-managed and 
sustainable compared to MSC's standards are assessed to evaluate 
whether they meet MSC's environmental standard for sustainable fishing. 
Based on the reports by Gascoigne et al. (2021a, b, and c), the coastal 
fisheries in this region were unable to proceed to the next level of 
the MSC's certification due in part to the potential high risk posed to 
the

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Atlantic humpback dolphin and other species. Additionally, the 
commenters submitted updated information on distribution, sightings, 
and habitat parameters for the species within the Saloum Delta in 
Senegal (specifically the preliminary results of the 2021 and 2022 S. 
teuszii surveys in the Saloum Delta, Senegal) with the majority 
sightings clustered in the Saloum River in the northern portion of the 
delta (Minton et al. 2022). Lastly, the commenters provided information 
about a male Atlantic humpback dolphin that washed ashore on the coast 
of Mauritania just south of Banc d'Arguin National Park on May 10, 2013 
(Bilal et al. 2023).
    Response: We reviewed the scientific and commercial information 
submitted by the commenters related to the threat of fisheries bycatch 
to the Atlantic humpback dolphin off the coasts of Mauritania and 
Senegal, and the updated information the commenters submitted on 
distribution, sightings, and habitat parameters for the species within 
the Saloum Delta in Senegal. While most of the material cited and/or 
provided by these commenters had already been considered in our status 
review report (Austin 2023) and proposed rule, we have updated our 
status review report (Austin 2023) to include the new information 
regarding the distribution, sightings, and habitat parameters for the 
Atlantic humpback dolphin within the Saloum Delta in Senegal, from the 
preliminary results of the 2021 and 2022 S. teuszii surveys in the 
Saloum Delta described in Minton et al. (2022). We also incorporated 
new information related to the threat of fisheries bycatch off the 
coasts of Mauritania and Senegal into our status review report (Austin 
2023). Additionally, we included information in our status review 
report (Austin 2023) regarding a record of a male Atlantic humpback 
dolphin specimen washed ashore on the coast of Mauritania just south of 
Banc d'Arguin National Park on May 10, 2013 (Bilal et al. 2023). We 
find that although this new information does not alter our previous 
conclusions regarding the threat of bycatch in this region, it further 
supports our endangered listing determination for this species.
    Comment 3: Some commenters expressed strong support for our 
conclusion that the inadequacy of legal protections in the range 
countries of the Atlantic humpback dolphin are contributing to a high 
risk of extinction for this species. These commenters conducted a 
review of the current laws and regulations in Atlantic humpback dolphin 
range countries to assess if there had been any changes in the legal 
framework since the CMS' Draft Single Species Action Plan (Action Plan) 
was drafted in 2022. They found that the regulatory framework in place 
at the time of their work on the Action Plan remains the same, with no 
apparent evidence of any improvements in protections for this species 
generally or from the threat of bycatch in particular. Consequently, 
the commenters concluded that their findings support our conclusion in 
the proposed rule regarding the inadequacy of existing regulatory 
mechanisms to address the primary threats to Atlantic humpback dolphins 
(i.e., bycatch and coastal development).
    Additionally, these commenters refer to the discussion in the 
status review report (Austin 2023) about the difficulties faced by 
Senegal in enforcing its longstanding ban on monofilament nets and 
noted that there is presently no indication that the country of Senegal 
is making any headway on this management issue. In support of this 
statement, the commenters cite an April 2023 news article from ``Voice 
of America'' that discusses the threats faced by the Atlantic humpback 
dolphin in Senegalese waters (see Voice of America, ``Senegal: 
Critically Endangered Dolphin Threatened by Illegal Fishing Nets,'' 
April 11, 2023).
    Response: We appreciate and acknowledge the commenters' support of 
our conclusions for ESA listing criterion D (the inadequacy of existing 
regulatory mechanisms), in particular regarding how the inadequacy of 
legal protections in the species' range countries contributes to a high 
risk of extinction for the Atlantic humpback dolphin. Additionally, we 
agree that there have been no changes in the legal status quo since 
these commenters initially researched and compiled the legislative 
summary within the CMS' Draft Single Species Action Plan, and that 
there is no indication of improved protections, in general or from the 
threat of bycatch in particular, for the Atlantic humpback dolphin. As 
described in our status review report (Austin 2023) and proposed rule, 
regulatory mechanisms that currently exist are not adequate to address 
the species' primary threats of bycatch and coastal development, due to 
lack of enforcement, resources, implementation, and/or effectiveness 
within each range country. Thus, we maintain our conclusion that the 
inadequacy of existing regulatory mechanisms contributes to a high risk 
of extinction for the Atlantic humpback dolphin.
    Additionally, we note the commenters' statement that there is no 
indication of improved enforcement of the monofilament net ban in 
Senegalese waters. We agree that the best available scientific and 
commercial data supports that conclusion. Therefore, we incorporated 
this new information into our status review report (Austin 2023), and 
find it further supports our endangered listing determination for the 
Atlantic humpback dolphin.
    Comment 4: One commenter proposed a new strategy to recover and 
conserve the species via a proposed conservation policy which targets 
the species' primary threat of fisheries bycatch and is predicated on 
financial assistance under section 8(a) of the ESA, with an emphasis on 
the Saloum Delta region of Senegal (the commenter notes that this area 
houses a concentrated population of the species and Senegal already has 
enacted laws focused on conservation). The commenter stated that 
section 8(a) of the ESA provides the Executive Branch with discretion 
to disburse monies to foreign countries to aid in the development and 
management of programs ``useful for the conservation of any endangered 
species'' (16 U.S.C. 1537(a)). The commenter states that NMFS should 
provide financial assistance to Senegal under section 8(a) of the ESA, 
in collaboration with the United States Agency for International 
Development (USAID). To support this proposition, the commenter 
included citations to foreign policy articles regarding the Biden 
Administration's Africa strategy and USAID's Municipal Waste Recycling 
Program, as well as sources discussing the use of acoustic instruments 
that act as a deterrent to dolphins by allowing them to echolocate 
monofilament fishing nets (i.e., pingers), which have been shown to 
reduce bycatch in other dolphin species around the world.
    Response: We appreciate the commenter's input and ideas for how to 
advance recovery for the Atlantic humpback dolphin. However, because 
this comment addresses potential future conservation efforts for the 
Atlantic humpback dolphin, it is not relevant to our assessment of 
extinction risk and the final listing determination for the Atlantic 
humpback dolphin.
    Comment 5: We received comments from two foreign countries, the 
Kingdom of Morocco and the Republic of Cameroon, expressing support for 
listing the Atlantic humpback dolphin as endangered under the ESA. Each 
country also provided additional information regarding existing 
domestic laws in their respective countries to

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protect the species. The Kingdom of Morocco submitted documentation 
from its Order of the Minister of Agriculture, Maritime Fisheries, 
Rural Development and Waters and Forests No. 464-23 (signed February 
21, 2023), which prohibits fishing for the Atlantic humpback dolphin in 
Moroccan maritime waters for a period of 25 years, beginning on June 1, 
2023. The Republic of Cameroon submitted documentation from their 
Ministry of Forestry and Wildlife ``Establishing the Modality of the 
Distribution of Animal Species in Protected Classes,'' which lists the 
Atlantic humpback dolphin, along with four other marine mammal species, 
as a legally protected species within the waters of Cameroon 
(Arr[ecirc]t[eacute] N[deg]0053/Ministry of Forestry and Wildlife 
(MINFOF), passed on April 1, 2020).
    A separate public comment also reiterated information provided by 
the Kingdom of Morocco, and noted that recent efforts have been made by 
the Kingdom of Morocco to help mitigate threats to the species by 
highlighting that the prohibition of any harmful act towards the 
species in Moroccan maritime waters has been established for a period 
of 25 years. The commenter also agreed with our proposal to list the 
species as endangered under the ESA and our issuance of the correction 
notice to include Morocco as a country within the species' range.
    Response: We appreciate these comments from the Kingdom of Morocco 
and the Republic of Cameroon supporting our Atlantic humpback dolphin 
listing determination. Additionally, we reviewed the supporting 
documentation regarding legal protections afforded to the species in 
these two countries and incorporated this new information into the 
status review report (Austin 2023). While we acknowledge that the 
Kingdom of Morocco and Republic of Cameroon have legal protections in 
place for the Atlantic humpback dolphin, these countries are only two 
of the four (out of 19) range countries that have specific protections 
for the Atlantic humpback dolphin, and effective bycatch mitigation has 
not been documented in most range countries. This is a serious concern, 
given that bycatch is considered linked to the species' population 
decline and poses an immediate range-wide threat. Additionally, because 
Morocco's prohibition is new (i.e., it became effective on June 1, 
2023), we cannot yet gauge its effectiveness in protecting the Atlantic 
humpback dolphin in Moroccan maritime waters. As described in our 
status review report (Austin 2023) and proposed rule, regulatory 
mechanisms that currently exist throughout the majority of the species' 
range are not adequate to address the species' primary threats of 
bycatch and coastal development, due to lack of enforcement, resources, 
implementation, and/or effectiveness within most range countries. 
Additionally, government agencies in many range countries lack the 
resources to effectively monitor and mitigate threats and to design and 
implement research and conservation measures specific to the Atlantic 
humpback dolphin. As such, we ranked ESA listing criterion D (the 
inadequacy of existing regulatory mechanisms) as a ``high'' level 
threat, particularly due to lack of enforcement, resources, 
implementation, and/or effectiveness within each range country. We 
maintain our conclusion that inadequacy of existing regulatory 
mechanisms contributes to a high risk of extinction for the Atlantic 
humpback dolphin. Therefore, we conclude the new information regarding 
legal protections afforded to the Atlantic humpback dolphin provided by 
the Kingdom of Morocco and the Republic of Cameroon does not alter our 
conclusion that the Atlantic humpback dolphin meets the definition of 
an endangered species under the ESA.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information to change our proposed listing 
determination. We did, however, make some revisions to the status 
review report (Austin 2023) to incorporate, as appropriate, relevant 
information that we received in response to our request for public 
comments or identified ourselves. Specifically, we updated the status 
review report (Austin 2023) to include new information regarding the 
distribution, sightings, and habitat parameters for the Atlantic 
humpback dolphin within the Saloum Delta in Senegal and information 
about the male Atlantic humpback dolphin that washed ashore on the 
coast of Mauritania. We also updated the status review report (Austin 
2023) to include new information related to the threat of fisheries 
bycatch off the coasts of Mauritania and Senegal. Lastly, we 
incorporated into our status review report (Austin 2023) additional 
information regarding existing domestic laws from the Kingdom of 
Morocco and the Republic of Cameroon that protect the Atlantic humpback 
dolphin in these countries' waters.

Status Review

    The status review for the Atlantic humpback dolphin was completed 
by NMFS staff from the Office of Protected Resources. To complete the 
status review, we compiled the best scientific and commercial data 
available on the species' biology, ecology, life history, threats, and 
conservation status by examining the petition and cited references, and 
by conducting a comprehensive literature search and review. We also 
considered information submitted to us in response to our petition 
finding. The draft status review report (Austin 2023) was subjected to 
independent peer review as required by the Office of Management and 
Budget Final Information Quality Bulletin for Peer Review (M-05-03, 
December 16, 2004). The draft status review report (Austin 2023) was 
peer reviewed by four independent scientists selected from the academic 
and scientific community with expertise in cetacean biology, 
conservation, and management, and with specific knowledge of the 
Atlantic humpback dolphin. The peer reviewers were asked to evaluate 
the adequacy, appropriateness, and application of data used in the 
draft status review report (Austin 2023) as well as the findings made 
in the ``Extinction Risk Analysis'' section of the report. All peer 
reviewer comments were addressed prior to finalizing the draft status 
review report (Austin 2023) that was subsequently made available to the 
public at the proposed rule stage.
    We subsequently reviewed the status review report (Austin 2023), 
and its cited references, and we find the status review report (Austin 
2023), upon which the proposed and final rules are based, provides the 
best available scientific and commercial data on the Atlantic humpback 
dolphin. All peer reviewer comments are available online at: https://www.noaa.gov/information-technology/endangered-species-act-status-review-report-atlantic-humpback-dolphin-sousa-teuszii-id447. The final 
status review report (cited as Austin 2023) is available online at: 
https://www.fisheries.noaa.gov/species/atlantic-humpback-dolphin#conservation-management.

ESA Section 4(a)(1) Factors Affecting the Atlantic Humpback Dolphin

    As stated previously and as discussed in the proposed rule (88 FR 
20829, April 7, 2023), we considered whether any one or a combination 
of the five threat factors specified in section 4(a)(1) of the ESA is 
contributing to the extinction risk of the Atlantic humpback dolphin. A 
few commenters provided additional

[[Page 12984]]

information related to threats such as fisheries bycatch and the 
inadequacy of existing regulatory mechanisms in a number of Atlantic 
humpback dolphin range countries. The information provided was 
consistent with or reinforced information in the status review report 
(Austin 2023) and proposed rule, and thus did not change our 
conclusions regarding any of the section 4(a)(1) factors. Therefore, we 
incorporate and affirm herein all information, discussion, and 
conclusions regarding the factors affecting the Atlantic humpback 
dolphin from the final status review report (Austin 2023) and the 
proposed rule (88 FR 20829, April 7, 2023).

Extinction Risk

    As discussed previously, the status review evaluated the 
demographic risks to the Atlantic humpback dolphin according to four 
categories: (1) abundance; (2) growth rate and productivity; (3) 
spatial distribution and connectivity; and (4) genetic diversity (see 
McElhany et al. (2000)). As a concluding step, after considering the 
best available information regarding demographic and other threats to 
the species, we rated the species' extinction risk according to a 
qualitative scale (high, moderate, and low risk). While we updated our 
status review report (Austin 2023) as described above (see Summary of 
Changes from the Proposed Listing Rule) with (1) the latest threat 
information for the Atlantic humpback dolphin, (2) information on 
distribution, sightings, and habitat parameters for the species within 
Senegal, and (3) information about the male Atlantic humpback dolphin 
which washed ashore on the coast of Mauritania, none of the comments or 
information we received on the proposed rule changed the outcome of our 
extinction risk analysis for the species. As such, our conclusions 
regarding extinction risk for the Atlantic humpback dolphin remain the 
same. Therefore, we incorporate and affirm, herein, all information, 
discussion, and conclusions on the extinction risk of the Atlantic 
humpback dolphin in the final status review report (Austin 2023) and 
proposed rule (88 FR 20829, April 7, 2023).

Protective Efforts

    In addition to regulatory measures (e.g., fishing and gillnet 
regulations and domestic laws), we considered other efforts being made 
to protect the Atlantic humpback dolphin. We considered whether such 
protective efforts altered the conclusions of the extinction risk 
analysis for this species; however, none of the information we received 
on the proposed rule affected our conclusions regarding conservation 
efforts to protect the dolphin. Therefore, we incorporate and affirm 
herein all information, discussion, and conclusions on the protective 
efforts of the Atlantic humpback dolphin in the final status review 
report (Austin 2023) and proposed rule (88 FR 20829, April 7, 2023).

Final Listing Determination

    We summarize the factors supporting our final listing determination 
as follows: (1) the best scientific and commercial data available 
indicates that the species has a low abundance, with fewer than 3,000 
dolphins likely remaining, with observed or suspected population 
declines increasing the risk of local extirpation for extremely small 
stocks (e.g., Dakhla Bay and Angola) in the near future; (2) continued 
declines in abundance are expected given the ongoing and projected 
increase of identified range-wide threats (specifically, fisheries 
bycatch and coastal development), suggesting that the species will 
continue to decline in the absence of interventions; (3) the Atlantic 
humpback dolphin has a fragmented distribution with limited 
connectivity between stocks; (4) the Atlantic humpback dolphin has a 
restricted geographic range, being endemic to the tropical and 
subtropical waters along the Atlantic African coast where ongoing 
habitat destruction (including coastal development) contributes to a 
high risk of extinction; (5) the species' preference for nearshore 
habitat increases its vulnerability to incidental capture (i.e., 
fisheries bycatch) which also contributes to a high risk of extinction; 
and (6) existing regulatory mechanisms are inadequate for addressing 
the most important threats of fisheries bycatch and coastal 
development.
    As a result of the foregoing findings, which are based on the best 
scientific and commercial data available, as summarized herein, in our 
proposed rule (88 FR 20829, April 7, 2023), and in the status review 
report (Austin 2023), and after consideration of protective efforts, we 
find that the Atlantic humpback dolphin is presently in danger of 
extinction throughout its range. Therefore, we find that the Atlantic 
humpback dolphin meets the definition of an endangered species under 
the ESA and list it as such.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include the development and implementation of 
recovery plans (16 U.S.C. 1533(f)); designation of critical habitat, if 
prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and a requirement 
that Federal agencies consult with NMFS under section 7 of the ESA to 
ensure their actions are not likely to jeopardize the species or result 
in adverse modification or destruction of designated critical habitat 
(16 U.S.C. 1536). For endangered species, protections also include 
prohibitions related to ``take'' and trade (16 U.S.C. 1538). Take is 
defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct (16 
U.S.C. 1532(19)). Recognition of the species' imperiled status through 
listing may also promote conservation actions by Federal and state 
agencies, foreign entities, private groups, and individuals.

Activities That Would Constitute a Violation of Section 9 of the ESA

    On July 1, 1994, NMFS and the U.S. Fish and Wildlife Service 
(USFWS) published a policy (59 FR 34272) that requires us to identify, 
to the maximum extent practicable, at the time a species is listed, 
those activities that would or would not constitute a violation of 
section 9 of the ESA. The intent of this policy is to increase public 
awareness of the potential effects of species listings on proposed and 
ongoing activities.
    Because we are listing the Atlantic humpback dolphin as endangered, 
all of the prohibitions of section 9(a)(1) of the ESA will apply to 
this species. Section 9(a)(1) includes prohibitions against the import, 
export, use in foreign commerce, and ``take'' of the listed species. 
These prohibitions apply to all persons subject to the jurisdiction of 
the United States, including all persons in the United States or its 
territorial sea, and U.S. citizens on the high seas. Activities that 
could result in a violation of section 9 prohibitions for Atlantic 
humpback dolphins include, but are not limited to, the following:
    (1) Delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce any Atlantic humpback dolphin or any of 
its parts, in the course of a commercial activity;
    (2) Selling or offering for sale in interstate or foreign commerce 
any part of an Atlantic humpback dolphin, except antique articles at 
least 100 years old; and
    (3) Importing or exporting Atlantic humpback dolphins or any parts 
of these dolphins.
    Whether a violation results from a particular activity is entirely 
dependent upon the facts and circumstances of each incident. Further, 
an activity not

[[Page 12985]]

listed here may in fact constitute a violation of the ESA.

Identification of Those Activities That Would Not Likely Constitute a 
Violation of Section 9 of the ESA

    Although the determination of whether any given activity 
constitutes a violation is fact dependent, we consider the following 
actions, depending on the circumstances, as being unlikely to violate 
the prohibitions in ESA section 9 with regard to Atlantic humpback 
dolphins: (1) take authorized by, and carried out in accordance with 
the terms and conditions of, an ESA section 10(a)(1)(A) permit issued 
by NMFS for purposes of scientific research or the enhancement of the 
propagation or survival of the species; and (2) continued possession of 
Atlantic humpback dolphins or any parts that were in possession at the 
time of listing. Such parts may be non-commercially exported or 
imported; however, the importer or exporter must be able to provide 
evidence to show that the parts meet the criteria of ESA section 
9(b)(1) (i.e., held in a controlled environment at the time of listing, 
in a non-commercial activity).

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and joint NMFS/
USFWS regulations require Federal agencies to consult with NMFS to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of listed species or 
destroy or adversely modify critical habitat. It is unlikely that the 
listing of the Atlantic humpback dolphin under the ESA will increase 
the number of section 7 consultations because this species occurs 
outside of the United States and is unlikely to be affected by U.S. 
Federal actions.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) the specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) which may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring an endangered or threatened 
species to the point at which listing under the ESA is no longer 
necessary. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) 
requires that, to the extent prudent and determinable, critical habitat 
be designated concurrently with the listing of a species. However, 
critical habitat cannot be designated in foreign countries or other 
areas outside U.S. jurisdiction (50 CFR 424.12(g)). The Atlantic 
humpback dolphin is endemic to coastal Atlantic waters of western 
Africa and does not occur within areas under U.S. jurisdiction, which 
are well outside the natural range of this species. Therefore, we are 
not designating critical habitat for this species.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin implemented under the Information 
Quality Act (Pub. L. 106-554), is intended to enhance the quality and 
credibility of the Federal Government's scientific information, and 
applies to influential scientific information or highly influential 
scientific assessments disseminated on or after June 16, 2005. To 
satisfy our requirements under the OMB Bulletin, we solicited peer 
review comments on the draft status review report (Austin 2023) from 
four independent scientists selected from the academic and scientific 
community with expertise on cetaceans in general and specific knowledge 
regarding the Atlantic humpback dolphin in particular. We received and 
reviewed comments from these scientists and, prior to publication of 
the proposed rule, incorporated their comments into the draft status 
review report (Austin 2023), which was then made available for public 
comment. As stated earlier, peer reviewer comments on the status review 
report (Austin 2023) are available online at: https://www.noaa.gov/information-technology/endangered-species-act-status-review-report-atlantic-humpback-dolphin-sousa-teuszii-id447.

References

    A complete list of the references used is available upon request 
(see FOR FURTHER INFORMATION CONTACT).

Classification

National Environmental Policy Act

    Section 4(b)(1)(A) of the ESA restricts the information that may be 
considered when assessing species for listing and sets the basis upon 
which listing determinations must be made. Based on the requirements in 
section 4(b)(1)(A) of the ESA and the opinion in Pacific Legal 
Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded 
that ESA listing actions are not subject to the environmental 
assessment requirements of the National Environmental Policy Act.

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process.
    In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule 
does not have significant federalism effects and that a federalism 
assessment is not required. Given that this species occurs entirely 
outside of U.S. waters, there will be no federalism impacts because 
listing the species will not affect any state programs.

List of Subjects in 50 CFR Part 224

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: February 12, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, the National Marine 
Fisheries Service amends 50 CFR part 224 as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C 1361 et seq.


0
2. In Sec.  224.101, amend the table in paragraph (h) by adding an 
entry for

[[Page 12986]]

``Dolphin, Atlantic humpback'' in alphabetical order by common name 
under ``Marine Mammals'' to read as follows:


Sec.  224.101   Enumeration of endangered marine and anadromous 
species.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                            Species \1\
--------------------------------------------------------------------    Citation(s) for      Critical
                                                    Description of          listing          habitat   ESA rules
          Common name            Scientific name     listed entity      determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
Dolphin, Atlantic humpback....  Sousa teuszii....  Entire species..  [Insert Federal               NA         NA
                                                                      Register page where
                                                                      the document
                                                                      begins], 2/21/2024.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

[FR Doc. 2024-03162 Filed 2-20-24; 8:45 am]
BILLING CODE 3510-22-P


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