Endangered and Threatened Wildlife and Plants: Listing the Queen Conch as Threatened Under the Endangered Species Act (ESA), 11208-11226 [2024-02966]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11208-11226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02966]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 240208-0042; RTID 0648-XR071]


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

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are listing the queen conch (Aliger gigas, formerly 
known as Strombus gigas) as a threatened species under the Endangered 
Species Act (ESA). We have completed a review of the status of queen 
conch, including efforts being made to protect the species, and 
considered public comments submitted on the proposed listing rule as 
well as new information received since the publication of the proposed 
rule. Based on all of this information, we have determined that the 
queen conch is not currently in danger of extinction throughout all or 
a significant portion of its range, but is likely to become so within 
the foreseeable future. Thus, we are listing the queen conch as a 
threatened species under the ESA. At this time, we conclude that 
critical habitat is not yet determinable because data sufficient to 
perform the required analysis are lacking; any critical habitat 
designation would be proposed in a separate, future rulemaking.

DATES: This final rule is effective on March 15, 2024.

ADDRESSES: Public comments that were submitted on the proposed rule to 
list queen conch are available at https://www.regulations.gov 
identified by docket number NOAA-NMFS-2019-0141. A list of references 
cited in this final rule and other supporting materials are available 
at: https://www.fisheries.noaa.gov/species/queen-conch, or by 
submitting a request to the National Marine Fisheries Service, 
Southeast Regional Office, Protected Resources Division, 263 13th 
Avenue South, St. Petersburg, Florida 33701. Information relevant to 
inform separate rulemakings to designate critical habitat for queen 
conch or issue protective regulations for queen conch may be submitted 
to this mailing address or to the email address indicated below (see 
FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Orian Tzadik, NMFS Southeast Regional 
Office, (813) 906-0353-C; or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On February 27, 2012, we received a petition from WildEarth 
Guardians to list the queen conch as threatened or endangered 
throughout all or a significant portion of its range under the ESA. We 
determined that the petitioned action may be warranted and published a 
positive 90-day finding in the Federal

[[Page 11209]]

Register (77 FR 51763, August 27, 2012). After conducting a status 
review, we determined that listing queen conch as threatened or 
endangered under the ESA was not warranted and published our 
determination in the Federal Register (79 FR 65628, November 5, 2014). 
In making that determination, we first concluded that queen conch was 
not presently in danger of extinction, nor was it likely to become so 
in the foreseeable future. We also evaluated whether the species 
warranted listing based on its status in a ``significant portion of its 
range'' by applying the joint U.S. Fish and Wildlife Service (USFWS) 
and NMFS Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' (SPR Policy; 79 FR 37580, July 1, 2014). We concluded 
that available information did not indicate any ``portion's 
contribution to the viability of the species is so important that, 
without the members in that portion, the species would be in danger of 
extinction, or likely to become so in the foreseeable future, 
throughout all of its range.'' Therefore, we concluded that the species 
did not warrant listing based on its status in a significant portion of 
its range.
    On July 27, 2016, WildEarth Guardians and Friends of Animals filed 
suit in the U.S. District Court for the District of Columbia, 
challenging our decision not to list queen conch as threatened or 
endangered under the ESA. On August 26, 2019, the Court vacated our 
determination that listing queen conch under the ESA was not warranted 
and remanded the determination back to the NMFS based on our reliance 
on the SPR Policy's particular threshold for defining ``significant,'' 
which was vacated nationwide in 2018 (though other aspects of the 
policy remain in effect). See Desert Survivors v. U.S. Dep't of 
Interior, 321 F. Supp. 3d 1011 (N.D. Cal. 2018).
    On December 6, 2019, we announced the initiation of a new status 
review of queen conch and requested scientific and commercial 
information from the public (84 FR 66885, December 6, 2019). We also 
provided notice and requested information from jurisdictions through 
the Western Central Atlantic Fishery Commission (WECAFC), Caribbean 
Regional Fisheries Mechanism (CRFM), and the Convention on the 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) Authorities. We received 12 public comments in response to this 
request.
    In May 2022, we completed a status review that considered all 
relevant new information regarding the status of the species. The 
status review report incorporated information received in response to 
our request for information (84 FR 66885, December 6, 2019), and was 
peer reviewed by three independent specialists selected from the 
scientific community with expertise in queen conch biology and ecology, 
conservation and management, and specific knowledge of threats to queen 
conch. Peer reviewer comments were addressed and incorporated, as 
appropriate, prior to dissemination of the final status review report 
(Horn et al. 2022).
    On September 8, 2022, we published a proposed rule to list the 
queen conch as threatened (87 FR 55200, September 8, 2022). We 
solicited comments on our proposed rule from the public for 95 days (87 
FR 55200, September 8, 2022; 87 FR 67853, November 11, 2022) and held a 
virtual public hearing on November 21, 2022 (87 FR 67853, November 11, 
2022), at which time we also accepted public comments. We are basing 
our listing determination on information in the status review report, 
information received from the public, and additional materials cited in 
this final rule, which comprise the best available scientific and 
commercial information.

Listing Determinations Under the ESA

    We are responsible for determining whether the queen conch is 
threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). 
Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made by any state or foreign 
nation to protect the species. To be considered for listing under the 
ESA, a group of organisms must constitute a ``species,'' which is 
defined in section 3 of the ESA to include ``any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature.'' Because 
the queen conch is an invertebrate, we do not have the authority to 
list individual populations as distinct population segments.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' Thus, in the 
context of the ESA, we interpret an ``endangered species'' to be one 
that is presently at risk of extinction. A ``threatened species,'' on 
the other hand, is not currently at risk of extinction, but is likely 
to become so in the foreseeable future. In other words, a key statutory 
difference between a threatened and endangered species is the timing of 
when a species may be in danger of extinction, either now (endangered) 
or in the foreseeable future (threatened). Additionally, as the 
definition of ``endangered species'' and ``threatened species'' makes 
clear, the determination of extinction risk can be based on either the 
range-wide status of the species, or the status of the species in a 
``significant portion of its range.'' A species may be endangered or 
threatened throughout all of its range or a species may be endangered 
or threatened within a significant portion of its range (SPR).
    Section 4(a)(1) of the ESA requires us to determine whether any 
species is endangered or threatened as a result of any of the following 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence (16 U.S.C. 1533(a)(1)(A)-(E)). We considered the 
nature of the threats and the species' response to those threats. We 
also considered each threat identified, both individually and 
cumulatively. Once we evaluated the threats, we assessed the efforts 
being made to protect the species to determine if these conservation 
efforts were adequate to mitigate the existing threats and alter 
extinction risk. Finally, we considered the public comments and 
additional information received in response to the proposed rule. In 
making this finding, we have relied on the best scientific and 
commercial data available.

Public Comments and Our Responses

    We requested comments on the proposed rule to list the queen conch 
as threatened during a 60-day comment period. In response to requests 
for a public hearing, we re-opened the public comment period for an 
additional 35 days (87 FR 67853, November 10, 2022) and held a virtual 
public hearing on November 21, 2022 (87 FR 67853, November 10, 2022).
    Public comments were accepted via standard mail, at the public 
hearing, and through the Federal eRulemaking portal. To facilitate 
access to the proposed rule, we provided English, Spanish, French, 
Dutch, and Creole versions of the proposed rule, as well as English and 
Spanish versions of Frequently Asked

[[Page 11210]]

Questions on our website in advance of the public hearing. All 
individuals who requested a public hearing along with representatives 
from over 30 state, Federal, and international organizations were 
contacted to provide direct notification of the public hearing. We also 
directly contacted and solicited comments from a variety of stakeholder 
groups and fisheries management organizations through avenues such as 
the CITES, WECAFC, CRFM, the Caribbean Fishery Management Council 
(CFMC), the United States State Department, the United States Congress, 
State/Territorial partners, over 6,000 subscribers to our Fishery 
Bulletin, and others.
    The virtual public hearing included live Spanish-language 
interpretation services and closed captioning translation options for 
English, French, German, Spanish, and Italian. A total of 137 people 
attended the virtual public hearing, 10 of whom provided oral public 
comment. Overall, we received 154 public comments on the proposed rule 
and supporting documents. Of these public comments, 56 opposed the 
listing, with 44 providing new information that informed our final 
determination. We received five comments that were neither supportive 
nor unsupportive of the listing determination, but provided additional 
data that were not included in the status review report or the proposed 
rule. The remaining 93 comments agreed with our proposed determination; 
many of these supportive comments presented general information on 
threats and provided supplementary data that were already considered or 
cited, and consequently discussed in the proposed rule. Of the comments 
that were supportive of the listing, 50 provided documentation, such as 
data or work cited, that reinforced the demographic factors and threats 
identified in the proposed rule, including population declines, smaller 
maturation sizes, degraded habitats, declining population connectivity, 
and declining fecundity estimates.
    The comments we received concerning critical habitat and protective 
regulations were not directly related to this action. However, such 
comments will be considered and addressed during subsequent rulemakings 
on critical habitat and protective regulations under section 4(d) of 
the ESA. Due to the direct threat of overutilization throughout the 
range of queen conch, we intend to promulgate protective regulations 
pursuant to section 4(d) for queen conch in a future rulemaking. We 
solicit further public comment to inform future rulemakings on critical 
habitat and development of protective regulations for the queen conch 
(see ADDRESSES below). All relevant public comments on the proposed 
rule to list queen conch are addressed in the following summary below. 
We have categorized comments by topic. Where appropriate, we have 
combined similar comments from multiple groups or members of the public 
and addressed them together.

Comments on Available Data, Trends, and Analyses

    Comment 1: Several commenters provided new, peer-reviewed or 
agency-produced empirical data on queen conch abundance, density, and 
landings that were not included in the status review report (Horn et 
al. 2022). New data were provided for the following jurisdictions: 
Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, Puerto 
Rico, San Andres Islands in Colombia, St. Vincent and the Grenadines, 
and the U.S. Virgin Islands. Some commenters suggested that the data 
provided were indicative of healthier queen conch populations in their 
particular jurisdiction than indicated by the status review report.
    Response: We thank these commenters for the submission of 
additional data to inform status of the species and this final rule. 
The new abundance and adult density estimates provided by commenters 
for Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, San 
Andres Islands in Colombia, St. Vincent and the Grenadines, and the 
U.S. Virgin Islands are within the range of previously reported 
abundance and adult density estimates summarized in the status review 
report for those jurisdictions (see figure 7 in Horn et al. 2022). The 
new data provided for Florida were highly variable but indicated that 
high densities of individuals occur in specific locations at different 
times and that seasonal shifts in adult densities may be occurring 
(Delgado and Glazer 2020). Overall, these data were still within the 
adult density estimates that were presented in the status review report 
for Florida. Similarly, the new commercial landings data provided by 
Belize and the new commercial export data provided by St. Vincent and 
the Grenadines were not substantially different from the data 
considered in the status review report as the values were within the 
range previously considered (see figure 16 in Horn et al. 2022). 
Therefore, although we considered these additional data sources, these 
data did not alter the previous conclusions presented in the status 
review report or the decision to list this species as threatened.
    The new density estimates provided for Puerto Rico were derived 
from Cruz-Marrero et al. (2020), who used video sled sampling to 
estimate conch population densities in Southwestern Puerto Rico. Cruz-
Marrero et al.'s (2020) estimates of adult densities are higher than 
those considered in the status review report for Puerto Rico; however, 
the methodology used to generate these estimates did not include visual 
inspection to distinguish between live conch and empty shells, 
potentially leading to overestimation of density, particularly in 
heavily fished areas where shells are discarded. We determined the 
video sled sampling method requires additional calibration and 
validation prior to its inclusion in our analyses.
    Therefore, we conclude the Cruz-Marrero et al. (2020) publication 
does not represent the best scientific and commercial data available 
due to concerns with the methodology used to estimate conch population 
densities in Southwestern Puerto Rico.
    Comment 2: Many commenters, including commercial fishers and local 
scientists, stated that local stakeholder knowledge should have been 
solicited prior to the publication of the proposed rule.
    Response: We announced the initiation of a status review for queen 
conch in the Federal Register (84 FR 66885, December 6, 2019). At that 
time, we asked the public to provide information on the queen conch 
that would inform our status review and opened a 60-day public comment 
period. We also directly contacted and solicited comments from a 
variety of stakeholder groups and fisheries management organizations 
through avenues such as the CITES, WECAFC, CRFM, CFMC, the United 
States State Department, State/Territorial partners, and others. The 
CFMC further solicited comments from stakeholders via written comments, 
District Advisory Panel (DAP) meetings, and oral comments. Comments 
were initially solicited at the CFMC meeting in December 2019. NMFS 
staff attended the WECAFC meeting in Puerto Rico in December 2019 to 
notify members of the opportunity for public comment to inform the 
status review. General updates on the queen conch status review were 
provided during the CFMC's regular meetings held in June, August, 
September, and December of 2020; April, July, August, and December of 
2021; February, April, and August of 2022. General updates on the 
status of the queen conch rulemaking were provided during the CFMC's 
regular meetings held in December of 2022; and

[[Page 11211]]

April, August, and December of 2023. We also directly contacted and 
solicited information from numerous scientific experts on conch 
fisheries biology. All information received, including 12 formal public 
comments, was considered, and relevant information was incorporated 
into the status review report and the proposed rule.
    Comment 3: Several commenters provided anecdotal observations of 
queen conch densities and one fisher provided underwater videos in 
Puerto Rico, suggesting that these observations were indicative of 
healthier queen conch populations in their jurisdictions than indicated 
by the status review report.
    Response: We thank these commenters for submitting their videos and 
sharing their knowledge of the queen conch population in their 
particular jurisdictions. While these data are indeed encouraging, they 
remain difficult to incorporate into the status review report as they 
cannot be readily converted into estimates of population densities. We 
acknowledge that the available density data can be difficult to 
interpret for several reasons, including the fact that survey methods 
varied, surveys were lacking from many areas and, in some cases, 
surveys were decades old. In addition, the connectivity modeling 
scenario provided density estimates that represent jurisdiction-wide 
medians, and the status review team (SRT) acknowledges that conch are 
not distributed evenly across space. Even in jurisdictions with very 
low densities, there likely exist some areas above the critical density 
threshold where reproduction continues to take place (Horn et al. 
2022). However, cross-shelf surveys likely generate the most reliable 
estimates of overall queen conch populations, and cross-shelf surveys 
are a widely used monitoring method for queen conch stocks (Vaz et al. 
2022). By contrast, the videos and observations provided are limited in 
their spatial inference because they represent a relatively small 
fraction of the overall range of the species. As described in the 
proposed rule, there is a clear need to improve data collection on this 
species throughout its range, and NMFS looks forward to working with 
all stakeholders to improve and standardize data collection to promote 
the recovery of the species.
    Comment 4: We received several comments requesting that NMFS 
acquire new, additional, or better data prior to making a listing 
determination. These commenters suggested that the available data and 
scientific studies do not provide sufficient evidence to support 
listing queen conch as a threatened species under the ESA.
    Response: As stated above, and as described in the proposed rule, 
NMFS acknowledges the need for further research and additional and 
uniform data. However, we disagree with the commenters' assertion that 
the best scientific studies available do not provide sufficient 
evidence to support our listing determination. As detailed in the 
Listing Determinations under the ESA section above, we evaluated all 
five factors under section 4(a)(1) of the ESA and concluded the best 
scientific and commercial data available indicate that, while the queen 
conch is not currently in danger of extinction, it will likely become 
so in the foreseeable future, therefore warranting listing as a 
threatened species under the ESA. In the proposed rule, we concluded 
that the species does not currently have a high risk of extinction due 
to the following: the species has a broad distribution and still occurs 
throughout its geographic range and is not confined or limited to a 
small geographic area; the species does not appear to have been 
extirpated from any jurisdiction and can still be found, albeit at low 
densities in most cases, throughout its geographic range; and there are 
several jurisdictions that have queen conch populations that are 
currently disproportionately contributing to the viability of the 
species, such that the species is not presently at risk of extinction. 
There are 9 jurisdictions that are estimated to have adult queen conch 
densities greater than 100 conch/ha, and together these 9 jurisdictions 
comprise about 61 percent of the estimated queen conch habitat. Several 
of these locations have high connectivity values (see figure 13 in Horn 
et al. 2022), indicating that these areas facilitate the flow of queen 
conch larvae, allowing for some exchange of larvae and maintenance of 
some genetic diversity.
    In addition, we note that the ESA requires that we base our listing 
determinations on the best scientific and commercial data available (16 
U.S.C. 1533(b)(1)(A) and does not require, nor necessarily allow time 
for, additional studies to gather more data. Am. Wildlands v. 
Kempthorne, 530 F.3d 991, 998 (D.C. Cir. 2008) (finding that the ``best 
available data'' requirement in section 1533(b)(1)(A) requires not only 
that data be attainable, but that researchers in fact have conducted 
the tests); Southwest Ctr. for Biological Diversity v. Babbitt, 215 
F.3d 58, 60 (D.C. Cir. 2000) (``The `best available data' requirement 
makes it clear that the Secretary has no obligation to conduct 
independent studies.''); see also, Oceana, Inc. v. Ross, 321 F. Supp. 
3d 128, 142 (D.D.C. 2018) (interpreting analogous language in section 
1536(a)(2)) (citations omitted); San Luis & Delta-Mendota Water Auth. 
v. Locke, 776 F.3d 971, 995 (9th Cir. 2014) (holding that the best 
available science standard ``does not require an agency to conduct new 
tests or make decisions on data that does not yet exist.''). The ESA's 
emphasis on the best available information thus requires us to make 
listing determinations based upon what is sometimes incomplete 
information. Provided that the best available information is sufficient 
to enable us to make a determination as required under the ESA, as is 
the case here, we must rely on it even though there is some degree of 
imperfection or uncertainty. Defenders of Wildlife v. Babbitt, 958 F. 
Supp. 670, 679-81 (D.D.C. 1997) (explaining that courts have 
consistently held that the statutory standard requiring that listing 
decisions be made on the ``best scientific and commercial data 
available,'' is less stringent than a standard requiring ``conclusive 
evidence'' or ``absolute scientific certainty'').
    Comment 5: Several commenters questioned what data were used to 
make the final listing determination. Specifically, commenters from 
Puerto Rico, U.S. Virgin Islands, and Nicaragua asked about the recency 
of the landings and adult density data and what studies had been used 
to make the listing determination.
    Response: The data and research used to inform our listing decision 
were published online concurrently with the proposed rule and are 
summarized in the status review report (Horn et al. 2022). This report 
considered all relevant published and grey literature, databases, and 
reports, as well as any relevant information provided during the public 
comment period from our previous notice of initiation of a status 
review (84 FR 66885, December 6, 2019). The status review evaluated 
data from 47 countries and territories (e.g., management 
jurisdictions), assimilating approximately 360 references. The status 
review considered the scientific literature to determine density 
thresholds for reproductive viability, then evaluated these thresholds 
by jurisdiction using the best scientific information available for 
density surveys from 2012-2020. Similarly, the status review considered 
fisheries landings data (1950-2018) from the Food and Agriculture 
Organization and reconstructed landing histories (1950-2016) from the 
Sea Around Us (SAU) project. It considered results from recent genetic 
structure studies (e.g., Truelove

[[Page 11212]]

et al. 2017) and published results from simulations identifying 
limiting factors for conch reproductive dynamics (Farmer & Doerr 2022). 
It evaluated a novel hydrodynamic modeling approach to connectivity 
which provided insight into how exchange of larvae across the 
population range has been dramatically interrupted by overexploitation 
relative to virgin stock patterns (Vaz et al. 2022). The status review 
team organized this information and data by jurisdiction and searched 
systematically for information regarding conch densities, landings, and 
population trends. Additionally, the team systematically evaluated the 
threats to conch across management jurisdictions, including 
overutilization, inadequacy of regulations and enforcement, and climate 
change.
    Upon its publication in May 2022, the status review report (Horn et 
al. 2022) provided a complete list of citations used as well as five 
supplemental files, including the most recently available fisheries 
data by jurisdiction, Food and Agriculture Organization (FAO) landings 
data, and population density estimates. This information is all 
publically available on our website. The landings data alluded to by 
commenters were included through 2018 (see figures 15, 16, 17, 19, and 
20 in Horn et al. 2022), and all known fishery independent surveys were 
considered as well (see table 1 in Horn et al. 2022). Specific analyses 
regarding conch population connectivity and reproductive dynamics 
within the status review were also published in peer reviewed 
scientific journals (Vaz et al. 2022; Farmer and Doerr 2022).
    Comment 6: Several commenters cited the presence of queen conch 
populations in deep-water habitats that act as refuges due to their 
inaccessibility to fishing. In particular, commenters from Belize, 
Jamaica, Puerto Rico, and Florida cited local ecological knowledge to 
support the presence of deep water populations within their 
jurisdictions. Other commenters suggested that deep water populations 
exist throughout the range of the species and that these deep-water 
populations regularly supply recruits to the shallow water populations, 
which are subject to fishing. The commenters suggest that the presence 
of these deep water populations negate the need for listing the species 
under the ESA, as the populations will always replenish themselves.
    Response: The population dynamics of deep-water queen conch 
populations were evaluated and considered in the status review report. 
All published findings on deep-water populations were reported, 
including documentation of active fishing and depletion of some of 
these deep-water populations, such as those at Glover's atoll in Belize 
(Horn et al. 2022). The status review assessed all known deep-water 
populations, including several in the jurisdictions of The Bahamas, 
Belize, Florida, Jamaica, Puerto Rico, and St. Croix, and also 
considered other factors such as prevailing currents, and physical 
recruitment dynamics that can influence population connectivity (Horn 
et al. 2022). The commenters did not provide any new scientific 
information to support claims of deep-water populations beyond what was 
already considered in the status review, and we are unable to determine 
the direct contribution of additional populations to local queen conch 
populations without further research. The current state of research on 
deep water populations remains limited due to two major factors. The 
first is that in most locations, the deep water habitats do not seem to 
be the primary habitat for queen conch, and population densities are 
therefore limited. The second is that these populations occur at depths 
below safe recreational diving limits, therefore necessitating 
specialized technical training and equipment to access them. We agree 
with the commenters that there is a need to improve our understanding 
of the deep-water populations, and we look forward to working with 
stakeholders on this endeavor as we work to promote the recovery of the 
species.
    Comment 7: One commenter stated that the proposed listing 
determination arbitrarily relied on reproductive capacity and total 
population to support its conclusions instead of density and adequacy 
of regulations, which the commenter asserted should be the driving 
metrics for the listing determination.
    Response: We appropriately considered all relevant biological data 
when assessing extinction risk for those portions that warranted 
further investigation based on the initial assessment tool. Biological 
factors considered, such as reproductive capacity and productivity at 
viable spawning areas (e.g., areas with sufficient adult density and 
total population), are directly relevant to assessing status of the 
species now and in the foreseeable future. We cannot ignore such 
factors and focus exclusively on the factors the commenter prefers.
    Comment 8: One commenter stated we had erred by not having the SRT 
review the various spatial scales considered in the SPR analysis. 
Another commenter claimed that NMFS erred by not having the SRT review 
the eco-regional and macro-regional spatial scale approaches to 
evaluating SPR.
    Response: We disagree. Our analysis of whether queen conch is 
endangered within a significant portion of its range was informed by 
the SRT's work, and we applied extensions of the SRT's population-scale 
approach to our SPR analysis. Specifically, we followed the SRT's 
approach, by applying the same quantitative assessment tool to screen 
for ``potentially high risk'' and ``potentially significant'' portions 
of the range. Furthermore, nothing in the ESA or our regulations 
requires that the SRT review the agency's listing decision, including 
its evaluation of potential SPRs.
    Comment 9: One commenter stated that NMFS should list the queen 
conch as endangered in a significant portion of its range, asserting 
that the SPR analysis in the proposed rule was flawed because it 
arbitrarily divided the range of the queen conch instead of considering 
those portions where the species is in danger of extinction, and that 
the determination is contrary to the best available science because the 
queen conch is endangered in a significant portion of its range. The 
commenter concluded that our SPR analysis should have evaluated the 
total portion of the species' range where the species is below the 
critical density and in danger of extinction. The commenter asserted 
this ``portion'' is a significant portion of the range in which the 
species is endangered.
    Response: We conducted a thorough and conservative screening of 
portions of the range as described in the proposed rule, assessing 50 
different portions at 3 different geographic scales. Also as explained 
above, portions of the range below the critical density are not 
necessarily ``in danger of extinction.'' While we find that our 
previous analysis was adequate, we undertook the additional analysis 
sought by the commenter.
    As suggested by the commenter, we identified 11 management 
jurisdictions with empirical measurements of adult conch densities 
(e.g., not borrowed from nearest neighbor estimates of density) that 
were below ``critical density'' (i.e., Anguilla, Antigua and Barbuda, 
Aruba, Bonaire, Dominican Republic, Guadeloupe, Haiti, Martinique, 
Panama, St. Vincent and Grenadines, and Venezuela). We further 
evaluated this portion of the species' range, comprised of these 11 
jurisdictions, to determine whether this portion was, in our 
assessment, at a ``high risk'' of extinction and ``significant.'' 
Because

[[Page 11213]]

both of these conditions must be met, regardless of which question is 
addressed first, if a negative answer is reached with respect to the 
first question addressed, the other question does not need to be 
evaluated for that portion of the species' range. As with our SPR 
analysis in the proposed rule, we elected to address the ``high risk'' 
of extinction question first. The members of the species within the 
portion may be at ``high risk'' of extinction if the members are at or 
near a level of abundance, productivity, spatial structure, or 
diversity that places the members' continued persistence in question. 
Similarly, the members of the species within the portion may be at 
``high risk'' of extinction if the members face clear and present 
threats (e.g., confinement to a small geographic area; imminent 
destruction, modification, or curtailment of habitat; or disease 
epidemic) that are likely to create imminent and substantial 
demographic risks.
    In evaluating whether this portion of the species' range is at high 
risk of extinction, we considered the portion's abundance, 
productivity, spatial structure, and diversity. Although the portion 
contains only 1 percent of the contemporary abundance for the species, 
that 1 percent represents nearly 7 million adult conch. Generally 
speaking, low abundance places a population at greater risk for 
perturbation or genetic bottlenecks; however, this portion is broadly 
distributed geographically, which provides a significant buffer against 
these threats. Although this portion comprises only 12 percent of the 
total available habitat for queen conch, it contains an estimated 8,753 
km\2\ of available habitat. The portion is also protected against 
genetic bottlenecks because although it contains 11 important 
connectivity nodes for the species throughout its range, 13 additional 
important connectivity nodes outside the portion supply areas within 
the portion with larvae (Vaz et al. 2022). For example, within the 
portion, Panama receives most of its conch larvae from Costa Rica. The 
Dominican Republic receives larvae from Puerto Rico, Cuba, Turks and 
Caicos, and possibly Saint Lucia. Haiti has limited connectivity with 
neighboring islands, but may receive some limited input from Jamaica 
and Cuba. Anguilla presently receives larvae from multiple Leeward 
Islands. In Venezuela, Martinique, Bonaire, and Guadeloupe, conch 
reproduction is thought to be nominal, and most upstream supply would 
originate from Saint Lucia. For the management jurisdictions of Aruba, 
St. Vincent and Grenadines, Antigua and Barbuda, contemporary 
reproductive output is thought to be nominal, with a small likelihood 
of receiving larval supply from other locations.
    Although this portion has limited abundance and productivity is 
constrained by likely reproductive failures due to low adult densities 
leading to depensatory effects, the portion is distributed over a broad 
geographic area (i.e., the Caribbean basin) and is not subject to 
disease or disproportionate habitat destruction relative to the species 
across its range. The spatial structure of the portion and diversity of 
the portion are partially protected by the remaining reproductively 
viable populations and connectivity nodes that exist outside the 
portion. We estimate 685 million adult conch in habitats with 
reproductively viable densities outside of this portion. A single 
female conch lays between 7-14 egg masses containing between 500,000-
750,000 eggs during a single spawning season (Appeldoorn 2020). 
Assuming a 1:1 sex ratio, we estimate that the 342 million females in 
viable aggregation densities could produce up to 3,591 trillion eggs in 
a single spawning season. Our connectivity modeling suggests that a 
reasonable number of these eggs might successfully recruit to this 
portion during a given spawning season. Owing to the prolific 
reproductive output of viable conch spawning aggregations and the 
overall connectivity remaining within the system, including 
connectivity to this portion, we determine that, within this portion, 
queen conch is not currently in danger of extinction, but is likely to 
become so within the foreseeable future. This finding is consistent 
with the species' range wide determination, that queen conch is not 
currently in danger of extinction, but is likely to become so within 
the foreseeable future.
    Comment 10: Several commenters noted that the adult densities 
described in the status review report as thresholds for reproduction of 
individual populations were evaluated against cross-shelf population 
densities instead of against spawning aggregation densities. These 
thresholds were therefore overly conservative estimates when discussing 
the likelihood of extinction because the aggregation-densities are far 
greater than cross-shelf densities due to the nature of the queen conch 
spawning aggregation strategies.
    Response: As described in the status review report and proposed 
rule, the absence of reproduction in low density populations is 
primarily attributed to a low encounter rate and can contribute to 
Allee effects and localized extirpation due to reproductive failure. 
The cross-shelf density threshold of 50 adult conch/hectare is 
generally accepted as a minimum to achieve some level of reproductive 
success (Appeldoorn 1995; Gascoigne and Lipcius 2004; Stephens et al. 
1999; Stoner and Ray-Culp 2000). While we acknowledge that many minimum 
density estimates have been suggested in the literature, the threshold 
of 50 adult conch per hectare is lower than most recommended 
thresholds. For example, CITES initially proposed a minimum threshold 
of 56 adult conch per hectare but then revised their threshold to 100 
adults per hectare after further deliberation (Van Eijs 2014). An 
equivalent threshold of 100 adult conch per hectare has been proposed 
by the WECAFC queen conch working group and consequently adopted by the 
United Nations Environment Programme (UNEP 2012). The reference point 
used in the proposed rule is derived from cross shelf data from 
unfished areas in The Bahamas that show that mating and spawning 
plateau at approximately 100 adult queen conch per hectare (Stoner and 
Ray-Culp 2000; Stoner et al. 2012b). As discussed in the status review 
report (Horn et al. 2022), we agree that density thresholds may vary 
over both spatial scale and by location, as other studies have 
demonstrated higher thresholds needed to ensure reproductive success. 
For example, Delgado and Glazer (2020) identified a within-aggregation 
minimum of 204 adult conch/hectare.
    The SRT conducted a comprehensive review of the best scientific and 
commercial information available, with the goal of compiling robust, 
cross-shelf adult conch density estimates for each jurisdiction. To the 
extent possible, the SRT focused on the most recent studies where 
randomized sampling was conducted across broad areas of the shelf, 
including a range of habitats and depths (see table 2 and file S5 in 
Horn et al. 2022). Given differences in survey methodologies and 
uncertainties in the reproductive threshold, the SRT evaluated current 
and temporal trends in likely reproductive status by jurisdictions 
under three categories: (1) densities greater than 100 adult conch/ha, 
a density considered to support reproductive activity and population 
growth (UNEP 2012); (2) densities of 50-99.9 adult conch/ha, a density 
associated with reduced reproduction (Appeldoorn 1988c; Stoner and Ray-
Culp 2000); and (3) densities below 50 adult conch/ha, densities 
associated with likely Allee effects and limited viable reproduction 
(Stoner and Ray-

[[Page 11214]]

Culp 2000; Stoner et al. 2012b; UNEP 2012). The SRT considered these 
uncertainties in their Extinction Risk Analysis, and we considered them 
in the development of our proposed rule.
    We acknowledge that the thresholds considered by the SRT and 
discussed in the proposed rule (<50 adult conch/ha, 50-99.9 adult 
conch/ha, and <100 adult conch/ha) may differ from thresholds 
identified by other regulatory agencies, regional working groups, or 
national-level policies for some countries within the range of the 
species. However, we relied on the best available scientific and 
commercial information, as described within the status review report, 
to identify appropriate thresholds and to interpret published density 
estimates relative to those thresholds, while accounting for 
differences in survey methodologies (see ``Density Estimates'' section 
in Horn et al. 2022). The commenters did not identify any 
scientifically-supported alternative estimates or thresholds. The 
commenters did not provide information on which to base a change to the 
adult density estimate we used in our analysis, other than they believe 
the 50 adult conch/ha threshold is overly conservative for assessing 
the likelihood of extinction of the species. We acknowledge that 
substantial variability in the collection of conch density estimates by 
different researchers in different jurisdictions through time has led 
to challenges in identifying reproductive thresholds and making 
appropriate comparisons to those thresholds; however, we feel that the 
best scientific and commercial information available supports our 
methods and determination.
    Comment 11: Several commenters requested uncertainty estimates be 
provided for data that were used in the status review report and the 
proposed rule, particularly for those data pertaining to the levels of 
uncertainty for population model estimates and for the extinction risk 
analysis.
    Response: Uncertainty in the estimates of population densities, 
adult population sizes, and exploitation rates derived from the best 
available scientific and commercial data available are all presented in 
the status review report (see figures 5, 9, 18, and 19 in Horn et al. 
2022). Uncertainty in reproductive dynamics are presented in the status 
review report and described further in Farmer and Doerr (2022). 
Multiple scenarios of population connectivity are presented in the 
status review report and described further in Vaz et al. (2022). These 
scenarios contribute to the uncertainty of the population model due to 
the variability of values and of sampling methods at each of the 
different nodes in the model. Reported versus reconstructed landings 
are presented in figure 15 of Horn et al. (2022). Variability in the 
extinction risk analysis is captured in figures 22-24 of Horn et al. 
(2022). Finally, summary statistics and raw data associated with the 
extinction risk analysis and density estimates are presented in status 
review Supplementary Files 3 and 5, respectively.
    Comment 12: One commenter noted that the variability in 
morphometric measures, specifically shell lip thickness, among 
locations suggests that determination of maturity in queen conch is not 
uniform and can vary by location, thereby limiting the utility of 
universal measures of maturity, and suggesting that such measures 
should not be applied to all locations equally.
    Response: As described in the proposed rule and discussed in the 
status review report (Horn et al. 2022), we acknowledge that studies 
have suggested morphometric characteristics may differ among localized 
populations. Furthermore, age and size at maturity may differ among 
locations, such that morphometric measures, such as shell lip 
thickness, at maturity are not consistent among locations. Despite 
local variability, shell lip thickness is often used as an indicator of 
maturity in queen conch and in fishery management. Therefore, the 
status review report analyzes morphology and shell lip thickness 
carefully. As mentioned in the status review report, some of these 
differences (including variability in shell lip thickness in mature 
adults) may be driven by overutilization of the resource. Growth 
overfishing (i.e., when conch are harvested at an average size that is 
smaller than the size that would produce the maximum yield per recruit) 
leads to smaller adults within fished stocks. In addition, the status 
review report recommends further research on the direct effects of 
environmental contaminants, such as heavy metals, pesticides, and other 
pollutants. Contaminants and lower quality habitats may impact growth, 
reproduction, and morphology. Other than the detrimental effects these 
pollutants are known to have on early life stages such as larvae, the 
effects of environmental contaminants on queen conch remain poorly 
understood (Horn et al. 2022).
    Despite the variability in morphometric characteristics among 
localized population, shell lip thickness is the most reliable 
indicator for maturity in queen conch, as described in the proposed 
rule. The best available information indicates that shell lip thickness 
for mature queen conch ranges from 17.5 to 26.2 mm for females, and 13 
to 24 mm for males (Stoner et al. 2012; Bissada 2011; Aldana-Aranda and 
Frenkiel 2007; Avila-Poveda and Barqueiro-Cardenas 2006). Boman et al. 
(2018) suggested that a 15 mm minimum lip thickness would be an 
appropriate threshold metric for most of the Caribbean region. The 
primary goal of a minimum lip thickness is as a fishery management 
metric to ensure that at least 50 percent of the queen conch population 
will reach maturity prior to being harvested (Boman et al. 2018).
    While the relationships between shell lip thickness, age, and 
sexual maturity vary geographically, the best available information 
demonstrates that the value established for minimum shell lip thickness 
by most jurisdictions is inadequate to prevent immature conch from 
being harvested. Only six jurisdictions (i.e., Colombia, Puerto Rico, 
Nicaragua, U.S. Virgin Islands, Cuba, and Honduras) have minimum shell 
lip thickness regulations. Only Honduras has a minimum shell lip 
thickness of at least 18 mm, which is likely the most effective 
criteria for prohibiting the harvest of immature conch; the other five 
jurisdictions require a minimum lip thickness well below reported 
minimum size at maturity (i.e., 5 mm, Colombia; 9.5 mm, Puerto Rico; 
9.5 mm, Nicaragua; and 10 mm, Cuba). Thus, although several 
jurisdictions have regulations that may prohibit harvest of immature 
conch and while measures of maturity may vary geographically, our 
review of minimum meat weight, shell length, and flared lip regulations 
indicates that immature queen conch are being legally harvested in 20 
jurisdictions, which is partially responsible for observed low 
densities and declining populations. We also note that the majority of 
queen conch fisheries (except St. Lucia and the U.S. Virgin Islands) do 
not have requirements to land queen conch in the shell. Regulations 
that allow queen conch meat to be removed and the shell discarded at 
sea undermine enforcement and compliance with regulations for a minimum 
shell length, shell lip thickness, and flared shell lip.
    Comment 13: Several commenters suggested that demographic and 
exploitation thresholds should not be equally applied across all 
jurisdictions due to the nuances of individual fisheries. The 
commenters argued that the differences among jurisdictions should be 
accounted for and therefore different thresholds should be considered 
for each individual jurisdiction.

[[Page 11215]]

    Response: The status review report used threshold values of 
population densities associated with reproductive capacity and harvest 
levels that are generally considered sustainable. Those thresholds were 
compared against the available information on population density and 
harvest levels as a tool to evaluate the population in each 
jurisdiction; however, we did not use these thresholds as definitive 
measures of population status. Instead, thresholds were used to flag 
whether jurisdictions, eco-regions, or macro-regions merited further 
evaluation as being potentially at higher risk for viable queen conch 
populations. Flagged locations were subjected to additional scrutiny 
including evaluation of local and regional differences in data 
collection programs, population productivity, connectivity, and 
management regimes. In the status review report, the species was 
evaluated across four demographic factors for viability (i.e., 
abundance, growth rate/productivity, spatial structure/connectivity, 
and diversity) and five major threat categories as identified in 
section 4(a)(1)(A)-(E) of the ESA (i.e., present or threatened 
destruction, modification, or curtailment of its habitat or range; 
over-utilization of the species for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and other natural or manmade factors 
affecting its continued existence) across its entire range. We 
evaluated these factors and threats across the entire range of the 
species, then within individual jurisdictions, and ultimately across 10 
distinct ecoregions within the range of the species. This approach 
ensured that all risk factors were evaluated at both small and large 
spatial scales, and no single factor was relied upon to determine the 
extinction risk at any one location.
    Comment 14: One commenter noted that the cause of reproductive 
failure of queen conch in the Florida Keys is unknown, and cautioned 
NMFS to consider this issue in the derivation of future regulations.
    Response: NMFS acknowledges this issue and discusses the phenomenon 
in the status review report and the proposed rule (87 FR 55220). 
Nearshore populations seem to be disproportionately affected by the 
described phenomenon. Given that heavy metals have been documented to 
impair egg-laying in gastropods, several experts in the field have 
speculated that the presence of ambient heavy metals in the Florida 
Keys is likely contributing to reproductive failure in the nearshore 
environment, however, further research is necessary to definitively 
determine causality. We look forward to working with stakeholders in 
the Florida Keys to address knowledge gaps and promote the recovery of 
regional queen conch populations.
    Comment 15: One commenter noted that subpopulations of queen conch 
exist in Florida due to larval settlement patterns and barriers to 
connectivity. In particular, the commenter discussed the importance of 
the Hawk Channel in the Florida Keys as it represents a unique barrier 
that limits connectivity among inshore and offshore populations in the 
Keys that does not exist in other jurisdictions. The commenter stated 
that this barrier in the Keys limits the ability of individuals from 
inshore populations to migrate based on unfavorable environmental 
conditions.
    Response: Queen conch require physical contact to procreate; 
however, their ability to move is hindered by various barriers 
throughout its range, such as deep water passages, physical features of 
insular shelves, and manmade structures. We agree with the commenter 
that the Hawk Channel is a particularly large barrier. The status 
review report and the proposed rule note the potential impacts of Hawk 
Channel on connectivity and that it may be limiting movement, thereby 
limiting the formation of spawning aggregations in the Florida Keys.
    Comment 16: One commenter requested that NMFS contact one 
particular researcher that has an extensive knowledge of queen conch 
and the fishery throughout the region.
    Response: The publications of the researcher in question were used 
to inform the status review. In addition, the researcher that was 
mentioned provided public comment on the proposed rule, and we have 
considered that comment, which was generally supportive of the proposed 
rule.
    Comment 17: One commenter requested that NMFS summarize the 
uncertainty associated with the habitat model that was used in the 
status review to estimate total area of queen conch habitat throughout 
its range and provide uncertainty estimates.
    Response: NMFS used a habitat model published in Vaz et al. (2022) 
to estimate the total area of queen conch habitat throughout its range. 
The habitat estimates presented in Vaz et al. (2022) were based on 
coral reef locations from the Millennium Coral Mapping Project 
(Spalding et al. 2001; IMaRS-USF 2005; IMaRS-USF and IRD 2005; 
Andr[eacute]fou[euml]t 2008; UNEP-WCMC et al. 2021), and restricted to 
depths of less than 20 m (Salley 1986; Berg Jr. et al. 1992; Boidron-
Metairon 1992; Stoner and Sandt 1992; Stoner and Schwarte 1994; Delgado 
and Glazer 2020). Vaz et al. (2022) also included known spawning sites, 
including putative deep-water spawning locations, in the habitat layer, 
by ground-trutheding the habitat map with spawning sites reported in 
the literature (Randall 1964; D'Asaro 1965; Brownell 1977; Davis et al. 
1984; Weil and Laughlin 1984; Coulston et al. 1987; Wilkins et al. 
1987; Wicklund et al. 1991; Berg Jr. et al. 1992; Garc[iacute]a-Escobar 
et al. 1992; Stoner and Sandt 1992; M[aacute]rquez-Pretel et al. 1994; 
Lagos-Bayona et al. 1996; P[eacute]rez-P[eacute]rez and Aldana-Aranda 
2003; Garcia-Sais et al. 2012; Cala et al. 2013; de Graaf et al. 2014; 
Meijer zu Schlochtern 2014; Wynne et al. 2016; Truelove et al. 2017). 
This review led to the inclusion of 13 shallow-water polygons not 
initially present in the Coral Mapping Project-derived habitat layer. 
These areas were in St. Eustatius, U.S. Virgin Islands (USVI), 
Colombia, Florida, Mexico, Jamaica, Saba, Bonaire, and The Bahamas 
(Randall 1964; Coulston et al. 1987; Garc[iacute]a-Escobar et al. 1992; 
M[aacute]rquez-Pretel et al. 1994; Meijer zu Schlochtern 2014; Truelove 
et al. 2017). Vaz et al. (2022) also included additional 14 polygons 
containing putative deep spawning sites in waters off of Venezuela, 
Cuba, The Bahamas, USVI, Turks and Caicos Islands (TCI), Saba, 
Colombia, Belize, Honduras, Puerto Rico and Jamaica (i.e., Pedro Bank) 
(Randall 1964; Brownell 1977; Davis et al. 1984; Weil and Laughlin 
1984; Wicklund et al. 1991; Stoner and Sandt 1992; Lagos-Bayona et al. 
1996; Aiken et al. 2006; Garcia-Sais et al. 2012; Cala et al. 2013; de 
Graaf et al. 2014; Truelove et al. 2017).
    Uncertainty associated with the habitat area estimates were not 
reported for the data sources used to derive the Vaz et al. (2022) 
habitat model. To evaluate uncertainty in their habitat 
categorizations, Vaz et al. (2022) compared their habitat model 
estimates to published seagrass habitat cover and conch fishing areas 
(supplemental information figure 3 in Vaz et al. 2022), including 
compilations of global geomorphic zones (UNEP-WCMC and Short 2021; 
Allen Coral Atlas 2020; McKenzie et al. 2020; Schill et al. 2021); 
studies focused on jurisdictions or regional levels (Wabnitz et al. 
2008; Tewfik et al. 2017; Le[oacute]n-P[eacute]rez et al. 2019); and 
documented fishing sites (compiled in Prada et al., 2017). Overall, Vaz 
et al. (2022) found that estimates of seagrass area by jurisdiction 
were highly variable, and estimates of conch fishing areas were 
generally much lower than

[[Page 11216]]

the highest estimates of seagrass cover. Vaz et al. (2022) concluded 
that their final habitat model represented a conservative measurement 
of conch habitat throughout the Caribbean.

Comments on Existing Regulatory Mechanisms

    Comment 18: Several commenters stated that local regulations are 
sufficient to recover the queen conch population, or that they were 
already effective in preventing the decline of the species in local 
jurisdictions.
    Response: We disagree that existing regulatory mechanisms are 
adequate to prevent the decline of queen conch. The status review 
assessed the adequacy of regulatory mechanisms in each jurisdiction 
relative to the threats impacting the status of queen conch, and we 
concluded that existing regulations were unlikely to prevent queen 
conch from becoming in danger of extinction within the foreseeable 
future throughout its range.
    We recognize that efforts are being made throughout the region to 
responsibly manage the queen conch fishery. However, many populations 
continue to decline, particularly in the central/southern Caribbean, 
despite these efforts. In addition, the regulatory mechanisms in place 
for minimum sizes, harvest rules, and landing methods are inadequate in 
many jurisdictions. For example, in many jurisdictions, current 
regulations allow the harvest of immature individuals. Moreover, as 
detailed in the proposed rule, many jurisdictions lack effective 
enforcement of their existing regulatory mechanisms and evidence of 
illegal, unreported, and unregulated (IUU) fishing undermines the 
ability of such mechanisms to prevent further declines. Only a fraction 
of the jurisdictions (i.e., Belize, The Bahamas, Jamaica, Nicaragua, 
and Colombia) are conducting periodic surveys to inform their national 
harvest quotas. Several jurisdictions (e.g., Curacao and Trinidad and 
Tobago) have no regulations despite having queen conch fisheries.
    Despite some potentially effective local efforts to protect conch 
populations, when considering management strategies throughout the 
range of the species, most efforts have fallen short of their goals. 
Due primarily to a lack of population surveys, assessments, and 
monitoring, and a reliance on minimum size-based regulations that 
likely do not prevent the harvest of immature conch or protect spawning 
stocks, we conclude that existing regulatory mechanisms throughout the 
range of the species are inadequate to achieve their purpose of 
protecting the queen conch from unsustainable harvest and continued 
populations decline. The commenters provided no new information 
suggesting that new regulations have been implemented, that regulations 
exist that were not previously considered in making our listing 
determination, or that there is evidence that the existing regulations 
are effectively enforced or more effective than we considered.
    Comment 19: Several commenters mentioned that inadequate 
enforcement of existing regulations is one of the primary threats to 
the queen conch population throughout the region. Similar comments 
mentioned that overutilization by IUU fishing was a significant 
contributor to the decline of the species.
    Response: We agree that inadequate enforcement of existing 
regulations and IUU fishing are serious threats to the queen conch 
population throughout its range. We discussed these factors in the 
proposed rule and in response to comment 18.
    Comment 20: One commenter encouraged NMFS to increase support for 
collaborative efforts to address IUU fishing throughout the region, 
because this is the largest threat that the queen conch is facing.
    Response: As outlined in the status review and the proposed rule, 
NMFS recognizes the detrimental impact of IUU fishing on the population 
of queen conch as a serious threat throughout the region. We plan to 
work with regional stakeholders to foster collaborations and address 
this threat as we strive to implement actions that will promote the 
recovery of the species.
    Comment 21: Several commenters expressed concern that the ESA 
listing would penalize particular regions or jurisdictions that have 
implemented sustainable regulations to protect queen conch as a result 
of detrimental actions in other jurisdictions.
    Response: Under section 4(b) of the ESA, we are required to base 
listing decision solely on the best scientific and commercial data 
available after conducting a review of the status of the species, and 
after taking into account conservation efforts to protect the species 
(16 U.S.C. 1533(b)(1)(A)). When making a listing decision, we cannot 
consider economic impacts or other potential impacts that may result 
from a listing. Our decision to list the queen conch as a threatened 
species does not automatically result in take prohibitions, nor does it 
automatically impose any restrictions on trade in queen conch. However, 
under section 7(a)(2) of the ESA, listing does result in a requirement 
for Federal agencies to ensure that activities they carry out, fund, or 
authorize are not likely to jeopardize the continued existence of the 
species (16 U.S.C. 1533(d)). Section 4(d) of the ESA also authorizes us 
to issue protective regulations we deem necessary and advisable for the 
conservation of threatened species (16 U.S.C. 1533(d)). Under section 
4(d) of the ESA, we may also prohibit any of the actions that are 
prohibited under section 9(a)(1) of the ESA for endangered species, 
including import into and export from the United States of the listed 
species. Protective regulations would be tailored specifically to 
prevent further decline and facilitate recovery, and would be issued 
through a separate rulemaking with further opportunity for public 
comment.
    Because the queen conch is an invertebrate, we cannot list this 
species as distinct population segments, and therefore we cannot limit 
this species' listing to certain jurisdictions. Any future regulatory 
impacts associated with listing queen conch under the ESA apply within 
the United States, U.S. Territories, and any persons subject to U.S. 
jurisdiction. While we encourage other jurisdictions to implement 
actions to recover queen conch populations in light of this listing 
determination, we cannot enforce regulatory actions in foreign 
jurisdictions.
    Comment 22: Several commenters suggested that NMFS consider other 
actions to facilitate the recovery of the queen conch population rather 
than an ESA listing, including regional collaborations, such as working 
with WECAFC or stricter CITES regulations.
    Response: Section 4 of the ESA requires that we make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a status review of the species and after 
taking into account efforts being made to protect the species (16 
U.S.C. 1533(b)(1)(A)). In the proposed rule, we provided an assessment 
of existing regulations, including those associated with the CITES 
Appendix II, as well as other conservation measures currently underway 
in the region to account for efforts being made by any state or foreign 
nation to protect the species. We also evaluated the certainty of 
whether formalized conservation efforts will be implemented and will 
demonstrate effectiveness in accordance with the Policy for Evaluation 
of Conservation Efforts (68 FR 15100, March 28, 2003). The evaluation 
conducted under this policy assesses whether these conservation efforts 
are sufficiently certain to be implemented and effective

[[Page 11217]]

such that that they contribute to making it unnecessary to list a 
species, or to list a species as threatened rather than endangered. As 
explained in the proposed rule, and further expanded upon in comment 
20, we concluded that existing regulatory mechanisms are inadequate to 
control overutilization of the species, and various protective efforts 
are not sufficient to change the species' risk of extinction. We 
acknowledge that the Seafood Import Monitoring Program of the United 
States includes the queen conch as one of the species monitored to 
combat IUU fishing and therefore promotes sustainable harvest. We are 
also aware of restoration efforts being carried out to promote 
population recovery (e.g., Florida Atlantic University Queen Conch 
Aquaculture program), as well as the recovery of queen conch habitats, 
including coral reefs (e.g., Coral Reef Conservation Program) and 
seagrasses (e.g., Restore Act), all of which will in turn promote the 
recovery of the species. Despite fishery management regulations aimed 
at controlling commercial harvest, poor enforcement, inappropriate 
management measures, and significant IUU fishing demonstrate that the 
existing regulatory mechanisms throughout much of the range of the 
species are inadequate to control over-harvest and therefore are 
contributing to continued population decline. We note that the 
integration of efforts by FAO, CFMC, WECAFC, and the Organizacion del 
Sector Pesquero y Acuicola del Istmo Centroamericano (OPESCA) to 
coordinate and improve management and combat IUU fishing region-wide, 
is an encouraging sign, as their goals are to improve fishery data 
collection and establish reliable landings data based on scientifically 
supported conversion factors and management measures (Horn et al. 
2022).
    Comment 23: One commenter suggested that NMFS did not account for 
the ability of range states to adapt management policies based on their 
own queen conch population projections, such as has occurred in The 
Bahamas. According to this commenter, The Bahamas has greatly reduced 
queen conch exports in favor of meeting local demand due to population 
survey monitoring results.
    Response: The status review report summarizes the adequacy of each 
jurisdiction's specific fisheries management regulations, in terms of 
their design and enforcement, on the status of queen conch populations 
across the range of the species, and includes a detailed Supplemental 
File describing regional management strategies (Supplemental File 1 in 
Horn et al. 2022). We understand The Bahamas policy referenced by the 
commenter is not an enforceable regulation, but rather a suggested 
policy. While we support all strategies that have the potential to 
reduce over-exploitation of the species, without data to support the 
effectiveness of such strategies, such as increased population density 
or increased reproductive output, we cannot rely on them to support a 
decision not to list a species that otherwise meets the definition of 
threatened.
    Comment 24: Several commenters stated that their particular 
jurisdictions were promoting queen conch recovery via CITES management 
measures (including quotas, exploitation rates and density thresholds) 
and CRFM legislation, and therefore the ESA listing is unnecessary.
    Response: The status review report and proposed rule considered 
existing regulations and recovery efforts, including those mentioned by 
the commenters (see the Inadequacy of Existing Regulatory Mechanisms 
section in Horn et al. (2022) for a jurisdiction by jurisdiction 
breakdown of regulatory mechanisms). We are encouraged by local 
recovery efforts, and intend to partner with local stakeholders to 
complement these types of efforts with our own to ultimately promote 
the recovery of the species.

Comments on Threats

    Comment 25: One commenter asked what specifications allow a species 
to be listed under the ESA, whether different species have different 
specifications for a listing, whether a species can be listed based on 
loss of habitat, and whether overfishing of queen conch in one location 
can lead to a listing even if healthy populations exist elsewhere.
    Response: A species is considered ``endangered'' if it is in danger 
of extinction throughout all or a significant portion of its range, 
whereas a ``threatened'' species is defined as any species which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. As mandated by 
the ESA, we are required to determine whether a species is threatened 
or endangered because of any of the factors identified in section 
4(a)(1)(A)-(E) of the ESA. A species may be listed as threatened or 
endangered as a result of any one or more of those factors (threats). 
The particular circumstances and threats that contribute to a 
particular species' listing under the ESA are highly fact- and case-
specific, but each listing determination must be based on the best 
scientific and commercial data available and be supported by those 
data.
    One of the section 4(a)(1) factors (factor A) specifically 
addresses habitat loss as a potential basis for listing. However, with 
regard to queen conch, we concluded that at this time, the best 
available information indicates that habitat loss and degradation are 
not significantly contributing to the species' extinction risk. As 
outlined in the status review report, factor B, overutilization for 
commercial, recreational, scientific, or educational purposes, was 
identified as the primary contributor to the listing determination. The 
extinction risk analysis was conducted on the entire range of the 
species, assessing demographic trends, including productivity and 
connectivity across 39 unique jurisdictions. Overall, we concluded that 
overfishing, coupled with inadequate regulatory mechanisms to control 
overfishing, in particular jurisdictions is having adverse effects 
across the range of the species such that the species is likely to 
become an endangered species within the foreseeable throughout its 
range.
    Comment 26: Several commenters pointed out that the exploitation 
rate of 8 percent for the adult queen conch populations referenced in 
the proposed rule was intended as a guideline to be used in data-
limited situations as opposed to a firm threshold that cannot be 
surpassed in data-rich fisheries. These commenters suggested that their 
own jurisdictions could in fact surpass this threshold given the status 
of their monitoring programs and fishery regulations.
    Response: We did not use the exploitation rate of 8 percent as a 
definitive threshold to evaluate the status of queen conch fisheries 
across all jurisdictions. Instead, we used it as a tool to flag areas 
that exhibited high amounts of harvest relative to the local 
population. We evaluated the threat of overutilization of conch 
populations across many factors including density thresholds, available 
habitat, and exploitation rate. In particular, we note that 51 percent 
of jurisdictions were above the 8 percent exploitation rate; 80 percent 
of those had densities below 100 adult conch/hectare and 65 percent had 
densities below 50 adult conch/hectare.
    The commenters have not provided any new data or information 
derived from their monitoring programs beyond what was considered in 
the status review report and proposed rule. Moreover, the commenters 
did not identify better available scientific or commercial information 
that would lead us to change our determination.

[[Page 11218]]

    Comment 27: Fourteen commenters recommended listing queen conch as 
endangered; one commenter specifically mentioned that the ESA section 
4(a) risk factors support listing queen conch as an endangered species, 
rather than a threatened species. One commenter in particular stated 
that because overfishing (factor B) is reducing queen conch populations 
and there is no foreseeable reduction in fishing pressure, queen conch 
will continue on the path towards extinction, which the commenter 
equates with the standard for listing the species as endangered. This 
commenter also stated that existing regulatory mechanisms (factor D) 
over the past 30 years have not succeeded in recovering queen conch 
populations. According to this commenter, NMFS should list the species 
as endangered because once the population falls below critical density 
thresholds, it is at risk of extinction, and NMFS should not wait to 
list the species as endangered until this threat becomes more severe, 
which the commenter believes will occur in less than 30 years.
    Response: We disagree that the queen conch should be listed as an 
endangered species. As explained in the proposed rule, the key 
statutory difference between a threatened and endangered species is the 
timing of when a species may be in danger of extinction, either now 
(endangered) or in the foreseeable future (threatened). We have 
concluded that the queen conch is not presently in danger of 
extinction, but is likely to become so in the foreseeable future. The 
status review team conducted an extinction risk analysis whereby risk 
categories (i.e., low, medium, high) were assigned to the threats and 
the demographic risks to the species throughout its range. Guided by 
the results of their demographic risk analysis and the threats 
assessment, the status review team used their informed professional 
judgement to make an overall extinction risk determination for the 
queen conch. The SRT ultimately concluded that queen conch is facing a 
moderate risk of extinction, meaning that it is on a trajectory that 
puts it at a high level of extinction risk within the foreseeable 
future.
    As stated in the proposed rule and in our response above to comment 
4, we evaluated the SRT's conclusions regarding extinction risk and 
ongoing and planned conservation efforts for queen conch. We considered 
each of the statutory factors to determine whether it presented an 
extinction risk to the queen conch on its own, now or in the 
foreseeable future, and also considered the combination of those 
factors to determine whether they collectively contribute to the 
extinction risk of the species, currently or in the foreseeable future. 
Based on our consideration of the best available scientific and 
commercial information, as summarized here, including the SPR analysis, 
we conclude that while queen conch is not currently in danger of 
extinction throughout all or a significant portion of its range, it is 
likely to become so within the foreseeable future as a result of ESA 
section 4(a)(1) factors: B (overutilization for commercial, 
recreational, scientific, or educational purposes); D (inadequacy of 
existing regulatory mechanisms to address identified threats); and E 
(other natural or human factors affecting its continued existence).
    We conclude that the species does not currently have a high risk of 
extinction due to its broad distribution, its presence throughout its 
geographic range, and the significant connectivity between 
reproductively viable locations and other locations with reduced 
populations throughout the species' range. The commenters did not 
provide any new or better information about any threats that NMFS 
failed to consider in reaching its determination that the species' 
extinction risk is in the foreseeable future. Nor did the commenters 
suggest that NMFS relied on anything other than the best available 
information in assessing the threats.
    Based on our consideration of the best data available, and as 
explained above, we do not find that queen conch is presently in danger 
of extinction. We also disagree that a species that is currently on a 
path towards extinction is necessarily equivalent to a species that is 
currently in danger of extinction. A species that is on a path towards 
extinction is, however, consistent with our determination in this case 
that queen conch is likely to become endangered in the foreseeable 
future, i.e., threatened.
    While we agree with the commenter that factor D is a threat to the 
species, we disagree that this threat means the species is currently at 
risk of extinction. Our decision to list the species as threatened does 
not mean that we will wait until the threats become more severe before 
we undertake actions to recover the species. To the contrary, after the 
species is listed, we will work on developing a recovery plan that will 
guide future efforts to change the species' trajectory toward recovery. 
To the extent this comment disagrees with NMFS's definition of the 
foreseeable future, we address that comment in response to comment 29.
    Thus, while we recognize that the commenters would have reached a 
different assessment of the species' extinction risk based on the 
information NMFS relied upon, the commenters did not provide any 
information that would change our conclusion that the queen conch is 
not presently in danger of extinction, but is likely to become an 
endangered species within the foreseeable future.
    Comment 28: One commenter stated that queen conch should be listed 
as endangered because ocean temperature, ocean acidification, and 
possible changes in Caribbean circulation patterns, all of which are 
associated with climate change (factor E), represent serious threats to 
the continued viability of the queen conch. This commenter also stated 
that because NMFS determined that the foreseeable future for climate 
change extends out to the year 2100, there may not be sufficient levels 
of queen conch to protect, or enough density to continue reproducing, 
given the current decline.
    Response: NMFS agrees with the commenter that ocean temperature, 
ocean acidification, and changes in circulation patterns present 
threats to queen conch. We disagree, however, that these climate-change 
associated threats mean the species is currently at risk of extinction 
and thereby warrant listing the species as endangered. The climate-
change associated threats have been evaluated for the foreseeable 
future (i.e., to the year 2100), when we expect them to present greater 
challenges to the viability of queen conch. If a species is at risk of 
extinction in the foreseeable future, but not presently, then a 
threatened listing is warranted instead of an endangered one.
    We selected a longer timeframe associated with the threat of 
climate change, out to the year 2100, because of the availability of 
long-term predictions of increasing climate change and associated 
predicted impacts on queen conch. The commenter did not provide a 
scientifically defensible alternative to the foreseeable future values 
that were developed and applied in the status review report. With 
respect to the year 2100 (equal to roughly 8-18 generations), the 
commenter is concerned that populations of queen conch will be too 
depleted to be recovered at that time, if they do not receive the 
protections of an endangered status. We also note that by listing queen 
conch as a threatened species, the goal is to alleviate the effects of 
such threats before the species becomes endangered. Once listed under 
the ESA, we are required to review the status of the species every 5 
years, thereby ensuring that we monitor the status of

[[Page 11219]]

this species and the appropriateness of its classification as 
threatened.
    As explained in response to comment 27, our determination that the 
species is likely to become in danger of extinction in the foreseeable 
future (i.e., threatened) does not mean that we will wait until the 
effects associated with climate change occur before undertaking actions 
to recover the species. While the commenter disagrees with our 
assessment that 2100 represents the foreseeable future as it relates to 
climate change (factor E), the commenter does not assert that threats 
associated with climate change represent an imminent extinction risk 
for queen conch. Thus, even if the commenter believes NMFS should have 
selected a shorter timeframe as the foreseeable future associated with 
climate change, the commenter's acknowledgement that climate change 
presents threat to species' risk of extinction within the foreseeable 
future is consistent with our determination to list the species as 
threatened.
    Comment 29: One commenter asserted that NMFS erred in limiting the 
foreseeable future as 30 years for factors B and D. The commenter 
stated that previous management measures that were enacted well over 30 
years ago have yet to recover populations in individual jurisdictions.
    Response: The ``foreseeable future,'' in the context of an ESA 
status review, is the time period over which we can reasonably 
determine that both the future threats and the species' responses to 
those threats are likely. After we published the proposed rule to list 
queen conch as a threatened species, NMFS and the USFWS jointly 
proposed to revise the interpretation of ``foreseeable future'' in the 
definition of a ``threatened species,'' as extending as far into the 
future as we can reasonably rely on information about the threats to 
the species and the species' responses to those threats (88 FR 40764, 
June 22, 2023). Applying either interpretation, we must have a 
reasonable degree of confidence in the prediction based on the best 
available information. Regarding listing factors B and D, the 
foreseeable future of 30 years indicates that we anticipate both the 
threats associated with those factors and their continued impact on 
queen conch are likely to be realized over that period. As the 
commenter points out, restrictions that were put in place over 30 years 
ago (equal to roughly 3-6 generations) have not resulted in fully 
recovered populations; however, some of those specific jurisdictions 
(e.g., Florida) have seen initial signs of recovery which have resulted 
in some of the highest densities of aggregating individuals (Delgado 
and Glazer 2020) recorded throughout the range of the species. 
Additionally, recovery within a particular jurisdiction will depend on 
the larval dynamics associated with that sub-population, such that 
self-recruiting populations will have greater benefits resulting from 
no-take prohibitions, while other jurisdictions will need to rely on 
upstream sub-populations to augment recovery.
    We continue to find that the foreseeable future timeframes applied 
to queen conch are appropriate and that we can reasonably determine 
that both the threats and the species' responses to the threats are 
likely to occur within those timeframes.
    Comment 30: One commenter asserted that NMFS failed to analyze all 
of the statutory factors in ESA section 4(a)(1)(A)-(E) when determining 
whether queen conch should be listed as endangered or threatened. 
Namely, the commenter indicated that NMFS failed to analyze factors A 
(e.g., the present or threatened destruction, modification, or 
curtailment of its habitat or range) and C (e.g., disease or 
predation). The commenter went on to assert that the habitat of queen 
conch exhibits destruction and curtailment throughout its range, which 
is likely a result of risk factors B, D, and E. The commenter further 
indicated that climate change will exacerbate this destruction and 
therefore precautionary actions should be taken to acknowledge the 
habitat destruction in the jurisdiction of the United States.
    Response: We disagree. We considered all five statutory factors 
(ESA section 4(a)(1)(A)-(E)) in reaching our determination that the 
queen conch warrants listing as a threatened species under the ESA. 
With respect to factor A, the SRT concluded that (i) habitat stability, 
quality, and resilience is decreasing in many parts of the Caribbean 
due to anthropogenic activities that have led to direct and indirect 
impacts to seagrass and substrate, which are important to queen conch, 
(ii) increased pollutants, contaminants, and microplastics are 
impacting conch via their habitats, and (iii) the severity of these 
habitat related threats depend on the spatial scope and temporal 
persistence of the specific activities and the local demographics of 
queen conch populations. Nonetheless, the SRT concluded that the best 
available information indicates that habitat loss and degradation alone 
are not threatening the species' persistence. Additionally, with 
respect to factor C, we concluded that the best available information 
indicates that an organism, which may be parasitic, is prevalent in all 
the sampled conch specimens throughout the Caribbean and that several 
studies suggest that the organisms are correlated with irregularities 
in reproductive cycles and reduced gametogenesis, while other studies 
are contradictory, suggesting that the organisms had no negative 
effects on health or reproduction. With respect to predation, the SRT 
concluded it is not believed to currently be a factor that is 
influencing the status of queen conch.
    As explained in the proposed rule, we concluded that the SRT's 
findings on all five factors in ESA section 4(a)(1)(A)-(E), including 
factors A and C, were well-considered and based on the best available 
scientific information. We concurred with the SRT's assessment and 
found that the best available information does not indicate that 
factors A and C are operative threats on this species (87 FR 55209, 
September 8, 2022).
    Comment 31: One commenter mentioned that it was contradictory to 
state that ESA section 4(a) risk factor A was not significantly 
contributing to the extinction of the species, while also acknowledging 
that specific jurisdictions may require habitat protections or 
regulations, adding that such measures would not be warranted if no 
threats to the species' habitat existed.
    Response: We disagree that the need for measures to protect a 
species' habitat means that factor A must always be significantly 
contributing to the extinction risk of the species. In this case, the 
present or threatened destruction, modification, or curtailment of the 
species' habitat or range is not currently a factor contributing to the 
queen conch's overall extinction risk. At the same time, there are some 
areas, such as in Bermuda, where regulations aimed at protecting local 
habitat or water quality may be warranted. The fact that one 
jurisdiction may need additional measures to protect queen conch 
habitat within that jurisdiction does not necessarily mean that habitat 
destruction, modification, or curtailment is contributing to the 
species' extinction risk throughout all or a significant portion of its 
range.
    Comment 32: Several commenters asserted that NMFS failed to provide 
a substantive analysis of the cumulative impact of the five factors 
(ESA section 4(a)(1)(A)-(E)). These commenters suggested that the 
cumulative impact of threats to queen conch supports listing the queen 
conch as an endangered species, rather than a threatened

[[Page 11220]]

species. The commenter further asserted that NMFS failed to provide any 
quantitative or qualitative assessments or estimates of the overall 
extinction risk for the queen conch.
    Response: We disagree. NMFS considered all five listing factors in 
combination in determining whether to list the queen conch under the 
ESA. The analysis in the status review report considered and evaluated 
the species overall extinction risk resulting from the threats 
assessment as well as the demographic assessment. The overall 
extinction risk analysis ranking considers the cumulative impact of all 
identified threats and risks to the species. In the proposed rule, we 
describe in detail the relationship between the inadequacy of existing 
regulatory measures and enforcement to control the threat of 
overutilization, which translates into demographic concerns of low 
reproductive densities and disrupted population connectivity. 
Additionally, in our discussion of indirect impacts of climate change 
on queen conch (as part of our discussion of factor E), we discuss how 
higher temperatures could impact the availability of sea grasses and 
oxygen and salinity levels, all of which would impact the species 
habitat, food sources and availability of shelter from predators. We 
also discuss how ocean acidification could affect shell formation, 
which plays a vital role in protection from predators, parasites, and 
unfavorable environmental conditions.
    We acknowledge that more information is needed to better understand 
the population consequences of multiple stressors, especially those 
associated with interactions between long-term climate change such as 
sea level rise and increased erosion, turbidity, siltation, and 
severity of tropical storms. These threats have the potential to 
produce more widespread impacts, especially as they affect key 
ecological processes during early life stages such as larval dispersal, 
growth, and predation and whether presence of parasites increases the 
species' extinction risk. Despite this need for more information and as 
explained above in our response to comment 27, we disagree that queen 
conch is currently at risk of extinction and should be listed as an 
endangered species. We find that the best available scientific and 
commercial information indicates that the species is likely to become 
``endangered'' (in danger of extinction) ``within the foreseeable 
future,'' which is consistent with listing the species as threatened.
    In support of this listing determination, the SRT conducted a 
qualitative assessment of the overall extinction risk for the queen 
conch. This assessment is discussed in detail in the status review 
report (Horn et al. 2022). There is no requirement under the ESA that 
NMFS conduct a quantitative assessment of extinction risk, and 
sufficient data to perform quantitative analyses of extinction risk are 
often not available. As we described in the proposed rule, based on 
demographic risk factors and threats to the species, the SRT evaluated 
the overall extinction risk for queen conch using a ``likelihood 
point'' (Forest Ecosystem Management Assessment Team 1993) method to 
express each team member's assessment of extinction risk across all 
factors and capture their uncertainty in that assessment. As discussed 
in more detail in the status review report, each of the 7 SRT members 
distributed 10 ``likelihood points'' among 3 extinction risk 
categories: (1) low risk; (2) moderate risk; and (3) high risk. The SRT 
placed 59 percent of their likelihood points in the ``moderate risk'' 
category. Due to uncertainty, particularly regarding consistent 
reporting of landings and survey methodologies, the SRT also placed 
some of their likelihood points in the ``low risk'' (30 percent) and 
``high risk'' (11 percent) categories. Based on this analysis, the SRT 
concluded that the queen conch is currently at a ``moderate risk'' of 
extinction. We agreed that the SRT's approach to assessing the 
extinction risk for queen conch was appropriate, consistent with our 
agency practice, and based on the best scientific and commercial 
information available. After considering the SRT's assessment, we 
concluded that the queen conch is not currently in danger of 
extinction, but is likely to become so in the foreseeable future 
throughout all of its range.

Comments on Social, Economic, or Cultural Factors

    Comment 33: Several commenters provided a social or cultural 
rationale as to why the species should not be listed under the ESA. The 
commenters referred to the cultural and social importance of queen 
conch in the form of traditional cuisine, subsistence, nutrition, and 
historical cultural values and beliefs.
    Response: NMFS is mandated under the ESA to determine whether a 
species is an endangered or threatened species ``solely on the basis of 
the best scientific and commercial data available'' (16 U.S.C. 
1533(b)(1)(A). Therefore, we are not allowed to consider social, 
economic, or cultural factors when deciding whether to list a species 
under the ESA. Within U.S. jurisdiction, the listing of listing queen 
conch as a threatened species under the ESA does not create additional 
user regulations beyond those that are already in place; therefore, 
this rule is not anticipated to impact the cultural or social 
importance of queen conch within the United States. The ESA listing 
will have no effect on the citizens of other nations, outside the 
jurisdiction of the United States, and thus would not restrict 
traditional uses there. Any potential regulations under the authority 
of the ESA for the species would be developed through a separate 
rulemaking process under section 4(d) of the ESA, whereby NMFS can 
tailor the rule to specifically address conservation needs. Public 
comment would be solicited and considered, along with economic and 
social impacts, in the development of any future 4(d) regulations.
    Comment 34: Several commenters suggested that better outreach and 
educational programs are needed to inform stakeholders about how 
species can get listed under the ESA, citing concerns over equity and 
environmental justice. Specifically, commenters suggested that NMFS 
coordinate with under-served communities to promote outreach and 
education opportunities due to unawareness of regulations and local 
management strategies.
    Response: Prior to publication of the proposed rule, NMFS sent 
Spanish-speaking staff to discuss the queen conch status review with 
the CFMC and WECFAC working groups. Following publication of the 
proposed rule, NMFS provided English, Spanish, French, Dutch, and 
Creole versions of the proposed rule; along with English and Spanish 
versions of Frequently Asked Questions. Additionally, NMFS provided an 
after-hours virtual public hearing presentation and question and answer 
session, with live Spanish-language interpretation services and 
English, French, German, Spanish, and Italian closed captioning 
translation options. Spanish-speaking staff have attended several CFMC 
and District Advisory Panel meetings to provide presentations and 
updates on queen conch rulemaking.
    Although NMFS has made good faith efforts to engage under-served 
communities in the development of this final rule, we recognize there 
is room for improvement. NMFS identified outreach and engagement as a 
core component of the new national Equity and Environmental Justice 
(EEJ) strategy released in May of 2023 (https://media.fisheries.noaa.gov/2023-05/NOAA-Fisheries-EEJ-Strategy-Final.pdf). The three overarching goals of the strategy are to: (1) 
prioritize

[[Page 11221]]

identification, equitable treatment, and meaningful involvement of 
underserved communities; (2) prioritize equitable delivery of services; 
and (3) prioritize EEJ in our mandated and mission work with 
demonstrable progress. Our outreach and engagement objective aims to 
build relationships with underserved communities to better understand 
their engagement preferences and improve information sharing with all 
communities.
    We are currently working to operationalize the national EEJ 
strategy in the Southeast Region through the development of a Southeast 
EEJ Implementation Plan. That plan is being informed by feedback we 
received in response to a public Request for Information, along with 
information we obtained through a series of focus group meetings 
conducted with underserved community members and liaisons throughout 
the region. We will continue to coordinate with underserved communities 
on outreach and education initiatives as we work to incorporate EEJ 
into the vital services we provide to all communities.
    Comment 35: One commenter suggested that NMFS should increase 
outreach and education programs to warn fishers of the dangers of IUU 
fishing and overexploitation as there is a lack of awareness of local 
management strategies and regulations.
    Response: We agree that increased outreach and education programs 
could promote queen conch fishery sustainability throughout the region, 
and we look forward to working with regional partners to promote such 
programs, as appropriate, to facilitate the recovery of the species.
    Comment 36: Several commenters requested that the public documents, 
presentations, rulings, listings in the Federal Register, and other 
communications put forward by NMFS should be provided in Spanish.
    Response: The issue of language alternatives was brought to our 
attention early on during the public comment period. In response, we 
provided English, Spanish, French, Dutch, and Creole versions of the 
proposed rule; English and Spanish versions of Frequently Asked 
Questions and the public hearing presentation; and live Spanish-
language interpretation services and English, French, German, Spanish, 
and Italian closed captioning translation options for the public 
hearing. To the extent possible, we will similarly prepare English, 
Spanish, French, Dutch, and Creole versions of the final rule, and we 
will continue to provide English and Spanish versions of frequently 
asked questions and other documents that will be developed as a part of 
the recovery planning process.
    Comment 37: One commenter suggested that NMFS is undermining local 
stakeholders to ensure that the queen conch is listed under the ESA.
    Response: While we disagree with the commenter's assertion, we 
recognize the important role of stakeholders as we work together to 
recover the species. NMFS received a petition to list the species, and 
we are carrying out our statutory responsibilities under the ESA. 
Listing queen conch as a threatened species under the ESA recognizes 
the objectively determined status of the species and provides support 
from the Federal Government towards the recovery of the species.
    Comment 38: One commenter suggested that NMFS is implementing 
``draconian measures'' on resources in the U.S. Caribbean, which 
equates to ``institutional racism and discrimination.'' The commenter 
elaborated by mentioning that these issues fall under ``equity and 
environmental justice.''
    Response: We disagree. By listing a species under the ESA, NMFS is 
executing its statutory responsibilities. As required by the ESA, we 
based our listing determination solely on the best scientific and 
commercial data available regarding the status of the species. Our 
procedures, some prescribed by statute and others by Agency regulations 
or policies, are focused on ensuring that our decisions are objective 
and based on the best available science. We recognized the need for 
further engagement with local stakeholders beyond conventional means, 
particularly to solicit input from underrepresented, marginalized, and 
underserved communities that may not have the technical training, 
technology, or experience needed to provide public comment via 
traditional platform, as explained in response to comment 34. As we 
develop further actions related to the queen conch, NMFS will continue 
to work to find ways to meaningfully engage with local stakeholders to 
promote the recovery of the species.
    Comment 39: One commenter referenced the United Nations sustainable 
development goal 10, to ``Reduce inequality within and among 
countries.'' The commenter expressed concern that the listing 
determination would inadvertently lead to inequality and limit 
inclusion by stakeholder groups.
    Response: We disagree that our determination to list queen conch as 
a threatened species will lead to inequality and limit inclusion by 
stakeholder groups. We note that listing of queen conch under the ESA 
has no regulatory effect beyond those required through ESA section 7 
that Federal agencies consult with us on actions they authorize, fund, 
or carry out if those actions may affect the listed species or 
designated critical habitat within our jurisdiction. Under the ESA, we 
are also required to designate critical habitat for listed species to 
the maximum extent prudent and determinable (16 U.S.C. 
1533(a)(3)(A)(ii). Per our implementing regulations, however, we cannot 
designate critical habitat within foreign countries or in other areas 
outside the jurisdiction of the United States (50 CFR 424.12(g)).
    While we acknowledge that economic, social, and cultural 
considerations cannot be considered during the listing process, we note 
that the listing determination was based on the best available science, 
and we took measures to ensure broad and inclusive stakeholder 
participation. Public comments were solicited and received after the 
90-day positive finding (77 FR 51763, December 6, 2019) and again for 
an extended period after the publication of the proposed listing (87 FR 
55200, September 8, 2022; 87 FR 67853, November 10, 2022). As noted 
above, substantial efforts were made to provide materials across 
numerous languages and to engage with stakeholders throughout the range 
of the species. Our public hearing, held on November 21, 2022, was 
formally noticed to representatives from over 30 state, Federal, and 
international organizations including CITES; WECAFC; CRFM; CFMC; the 
United States Department of State; the United States Congress; State/
Territorial partners; over 6,000 subscribers to our Fishery Bulletin, 
including 4,000 in the U.S. Caribbean; and many others.
    Should further rulemaking be initiated through section 4(d) of the 
ESA, other factors including economic, social, and cultural 
considerations can be incorporated into the decision making process. 
This process would provide additional opportunities for public comment, 
community engagement, and stakeholder inclusion.
    Comment 40: Several commenters referenced the economic importance 
of queen conch to their fisheries, and commented that any further 
restrictions on catch would hinder economic growth and fishing 
community prosperity.
    Response: NMFS is mandated under the ESA to make listing decisions 
``solely on the basis of the best scientific and commercial data 
available,'' after conducting a review of the status of the species and 
taking into account the efforts being made by any state or

[[Page 11222]]

foreign nation to protect the species. While we recognize the economic 
importance of queen conch to fishing communities, we cannot consider 
social, economic, or cultural impacts that may stem from a species' 
listing when determining whether to list that species under the ESA. 
Additionally, no fishing restrictions are being proposed at this time. 
Listing the species as threatened under the ESA does not automatically 
establish any take prohibitions, which would apply if the species were 
listed as endangered. However, based on our review of the current 
population trends of the species and the inadequacy of existing 
regulations to control the ongoing threat of overutilization, we intend 
to propose protective regulations pursuant to section 4(d) for queen 
conch in a future rulemaking. A future rulemaking on protective 
regulations will include an opportunity for additional public comment, 
including any comments related to the economic importance of queen 
conch. We will also develop a recovery plan for queen conch to identify 
actions and establish goals for conserving and recovering the species. 
The development of the recovery plan will also include an opportunity 
for public comment.
    Comment 41: Several commenters pointed out that exports of queen 
conch out of their jurisdictions are already highly regulated and that 
the level of exports comply with CITES regulations to ensure 
sustainable resource use. Many of these commenters also mentioned that 
exports were primarily distributed to the United States and therefore 
U.S. law should not create any additional regulations that will inhibit 
exports of queen conch from their jurisdictions.
    Response: In making our listing determination, we reviewed the best 
scientific and commercial data available and ultimately concluded that 
the species warrants listing as a threatened species under the ESA. 
Foreign regulatory measures and actions of other stakeholders, 
including a detailed analysis of management measures by jurisdiction, 
were considered during our determination. In the proposed rule, we 
reviewed existing regulatory measures and concluded that existing 
regulations are inadequate to control the ongoing threats of 
overutilization and climate change. We determined that despite CITES 
measures to ensure sustainable resource use, the species is likely to 
become endangered within the foreseeable future and therefore warrants 
a threatened listing status. A threatened listing under the ESA does 
not automatically establish any restrictions on imports into the United 
States. However, as stated in our response to comment 40, we recognize 
the threat of overutilization throughout the range of queen conch and 
we intend to propose protective regulations pursuant to section 4(d) 
for the queen conch in a future rulemaking. Such regulations, including 
any potential import restrictions, will be proposed in a separate 
rulemaking that will include an opportunity for additional public 
comment. We will also consider any comments related to export 
compliance with CITES regulations further in the subsequent rulemaking 
regarding protective regulations.
    Comment 42: Several commenters mentioned that consumption of queen 
conch within local markets was exceptionally low and that their local 
fishery was only profitable by exporting their product, while others 
mentioned that local consumption was the only queen conch market that 
exists. These commenters assert that fishers within local jurisdictions 
do not apply sufficient fishing pressure to overharvest the species due 
to limited local demand and harvesting strategies.
    Response: The proposed rule identified overutilization of the 
resource in the form of extraction as the primary threat to queen conch 
throughout its range. Many commenters provided evidence of industrial 
fishing driven by exports while others provided anecdotal evidence of 
high local consumption. We agree that industrial-scale fishing is a 
primary threat to the species. As we explain in the proposed rule, 
fishing pressure for local consumption remains difficult to quantify 
and varies considerably among locations. The high degree of impact from 
industrial fishing combined with the uncertainty of subsistence fishing 
efforts supports our decision to list the queen conch as threatened 
throughout its range. Although the contributions of industrial, 
artisanal, and IUU fishing are challenging to discretely quantify, the 
status review report clearly shows that overutilization, in aggregate, 
has contributed to declines in reproductive densities and fishery 
failures in many jurisdictions.

Comments on Recovery Planning and Recovery Actions

    Comment 43: One commenter requested that NMFS implement protective 
measures that incentivize good practices instead of punishing 
unsustainable practices, recognizing that a collaborative, regional 
approach is essential to recover the species.
    Response: We will consider these comments in a subsequent 
rulemaking regarding protective regulations under section 4(d), which 
will include an opportunity for additional public comment. We will also 
consider these comments when we develop a recovery plan under section 
4(f) of the ESA. We agree that a collaborative, regional approach is 
essential to recover the species.
    Comment 44: One commenter requested that NMFS take specific actions 
related to the queen conch population in Florida. These requests 
include: (1) limit the social, economic, and cultural impact of the ESA 
listing to communities that depend on the imports, cultural 
significance, and tourism associated with the species, such as in the 
Florida Keys; (2) develop criteria to identify sustainable commercial 
fisheries throughout the Caribbean to allow for the import, export, and 
sale of commercially harvested queen conch in these fisheries; (3) 
coordinate an aquaculture program to further develop the capacity of 
existing operations and to promote new operations for recovery and 
commercial aquaculture purposes; (4) allow for the possession of queen 
conch shells, as it would be impossible to determine existing products 
compared to newly extracted ones; and (5) allow for conservation 
activities that are currently being carried out to continue unhindered.
    Response: The actions requested by this commenter go beyond the 
scope of this rule. Subsequent actions, including developing a recovery 
plan, can consider these actions requested by this commenter. 
Similarly, any potential take prohibitions we might develop under the 
authority of ESA section 4(d) can be specifically tailored to consider 
regional needs. Therefore, we will consider this comment in the context 
of future actions, including recovery planning, and any separate 
rulemaking we may undertake pursuant to ESA section 4(d).
    Comment 45: Several commenters requested that they be consulted and 
included in strategies to enhance the recovery of the species moving 
forward.
    Response: We thank these commenters for identifying their interest 
in the recovery planning process. NMFS intends to work with regional 
stakeholders to identify the most effective actions and the best 
strategies to promote the recovery of the species. This will include 
consultations with stakeholders and recovery planning based on the best 
available information.
    Comment 46: One commenter recommended that NMFS establish a 
regional initiative with the following components: (1) define and 
standardize

[[Page 11223]]

a queen conch assessment method; (2) standardize survey designs; (3) 
develop a more robust monitoring design, ideally using electronic 
monitoring; and (4) apply the developed initiative in three pilot 
countries to determine effectiveness and analyze the results.
    Response: We appreciate these suggestions, although they are beyond 
the scope of this rule. The actions requested are appropriate for 
evaluation during the recovery planning process. During the development 
of the recovery plan, NMFS will consider this comment and solicit 
additional information and recommendations from a variety of 
stakeholders to develop effective strategies to promote the recovery of 
queen conch throughout its range.

Summary of Changes From the Proposed Listing Rule

    We did not receive, nor did we find, data or references that 
presented substantial new information that would cause us to change our 
proposed listing determination. We did however, receive nine sources of 
new data (see comment 1), eight of which provided data that fit within 
the range of estimates considered in the status review report (Horn et 
al. 2022) and proposed rule. As stated above, the ninth new data source 
provided data that was derived using experimental methodology that has 
yet to be sufficiently validated and is not considered the best 
scientific information available. Therefore, while the new data 
contributed to our overall understanding of population dynamics and 
provided more refined local density estimates for populations in 
Antigua and Barbuda, The Bahamas, Belize, Florida, Nicaragua, San 
Andres Islands in Colombia, St. Vincent and the Grenadines, and the 
USVI, they did not alter the outcomes of the extinction risk analysis 
nor our interpretation of risk factors across the range of the species.
    After the publication of our proposed rule (87 FR 55200, September 
8, 2022) and during our analysis of public comments, NMFS adopted a new 
set of guidelines with regards to climate considerations during 
rulemaking processes. On May 9, 2023, NMFS officially recognized 
climate scenario SSP3-7.0 as the most likely predictor of future 
climate conditions, and therefore the climate scenario that should be 
used to evaluate climate change effects under the ESA. The proposed 
rule evaluated the ESA section (4)(a)(1) factors (specifically factor 
E) using the climate scenario SSP5-8.5. Climate scenario SSP3-7.0 is 
characterized by emissions and temperatures rising steadily, with 
carbon dioxide emissions roughly doubling and average temperatures 
rising by 3.6 [deg]C from current levels by 2100. While this scenario 
is more optimistic than scenario SSP5-8.5, the effects to queen conch 
and the corresponding extinction analysis are equivalent, as explained 
more fully below. ESA section 4(a)(1) factor E, other natural or man-
made factors affecting the continued existence of the species, was 
highlighted by the SRT as one of the risk factors that was relevant to 
the listing determination in that climate change is significantly 
contributing to the species extinction risk in the foreseeable future, 
which in this case is the year 2100. The SRT highlighted high carbon 
dioxide levels, higher mean sea surface temperature, and possible 
changes to the Caribbean Sea circulation patterns as major threats to 
the species. The corresponding effects are predicted to include 
disruption to shell formation due to acidic ambient water conditions, 
negative implications on reproduction, and impacts to population-level 
connectivity and recruitment, respectively. The associated extinction 
analysis under climate scenario SSP5-8.5 was also conducted with the 
considerations into the foreseeable future (i.e., 2100).
    The climate considerations in the proposed rule represent a range 
of values and were used to analyze the effects on queen conch biology 
using possible trends that may occur under climate scenario SSP5-8.5. 
The environmental changes anticipated within the range of the species 
under climate scenario SSP3-7.0 do not alter our interpretation of 
anticipated trends in the climate change risk factor, nor do they 
affect our corresponding extinction analyses. Specifically, decreases 
in aragonite and larval shell calcification can occur at pH levels of 
7.6-7.7, which are projected to occur by 2100 under climate scenario 
SSP3-7.0 due to elevated carbon dioxide levels. The anticipated mean 
sea surface temperature increases under scenario SSP3-7.0 are within 
the range evaluated in the status review report of 1.1-6.4 [deg]C; 
thus, changes in reproductive biology are still anticipated. 
Additionally, the increase in water temperatures and its effects on 
circulation patterns in the Caribbean anticipated under climate 
scenario SSP3-7.0 are not substantively different from those considered 
in the proposed rule under SSP5-8.5, with similar impacts to conch 
connectivity and recruitment. Thus, the conclusions contained in the 
status review and determinations based on those conclusions in the 
proposed rule are reaffirmed in this final action.

ESA Section 4(a)(1) Factors Affecting the Queen Conch

    As stated previously and as discussed in the proposed rule (87 FR 
55200, September 8, 2022), 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 queen conch. 
Several commenters provided additional information related to threats, 
such as overutilization, IUU fishing, inadequate regulatory mechanisms, 
and climate considerations. The information provided was consistent 
with or reinforced information in the status review and proposed rule, 
and thus, did not change our conclusions regarding any of the section 
4(a)(1) factors or their interactions. Therefore, we incorporate and 
affirm herein all information, discussion, and conclusions regarding 
the factors affecting the queen conch from the status review report 
(Horn et al. 2022) and the proposed rule (87 FR 55200, September 8, 
2022).

Protective Efforts

    In addition to regulatory measures (e.g., fishing regulations, 
seasonal closures, spatial closures, etc.), we considered other efforts 
being made to protect the queen conch. We assessed whether such 
protective efforts altered the conclusions of the extinction risk 
analysis for the species; however, none of the information we received 
on the proposed rule affected our prior conclusions regarding 
conservation efforts to protect the queen conch. Therefore, we 
incorporate and affirm herein all information, discussion, and 
conclusions on the extinction risk of the queen conch in the status 
review report (Horn et al. 2022) and proposed rule (87 FR 55200, 
September 8, 2022).

Final Listing Determination

    We reviewed the best available scientific and commercial 
information, including the information in the status review report 
(Horn et al. 2022). Based on the status review report, our evaluation 
of protective efforts, and consideration of all public comments, we 
determine that the queen conch meets the definition of a threatened 
species under the ESA. We find that the queen conch is in danger of 
extinction in the foreseeable future throughout all of its range as a 
result of ESA section 4(a)(1) factors B, D, and E. We summarize the 
results of our determination as follows: (1) The most significant 
threat to queen conch is overutilization; (2) Existing regulatory 
mechanisms including morphometric

[[Page 11224]]

and exploitation thresholds, compliance, and enforcement are 
insufficient to protect the species from growth overfishing and 
poaching, including IUU fishing, throughout the Caribbean; (3) The 
majority of jurisdictions are below the minimum adult density threshold 
required to support mate finding (i.e., 100 adult conch/hectare). These 
populations are not reproductive and unlikely to be contributing to 
recruitment and population growth; (4) The species currently suffers 
from low population densities and poor recruitment throughout a vast 
majority of its range and experiences limited larval dispersal and 
interrupted population connectivity; (5) The Caribbean region is likely 
to be impacted by climate change, and those adverse impacts, while not 
yet fully realized, could have devastating implications for queen conch 
over the next century (i.e., by 2100). Based on the demographic risks 
and threats under ESA section (4)(1)B, D, and E, we have concluded that 
queen conch is likely to become an endangered species in the 
foreseeable future throughout its range. However, as stated in the 
proposed rule and reiterated here, we concluded that the species does 
not currently have a high risk of extinction such that it warrants 
listing as an endangered species due to the following: the species has 
a broad distribution and still occurs throughout its geographic range 
and is not confined or limited to a small geographic area; the species 
does not appear to have been extirpated from any jurisdiction and can 
still be found, albeit at low densities in most cases, throughout its 
geographic range; and there are several jurisdictions that have queen 
conch populations that are currently disproportionately contributing to 
the viability of the species, such that the species is not presently at 
risk of extinction. After considering efforts being made to protect the 
species, we conclude that existing conservation efforts are 
insufficient to alter the extinction risk. We evaluated 51 different 
portions of the species range at 4 different geographic scales and 
determined that none are at ``high risk'' of extinction but some are 
likely to become so in the foreseeable future. Therefore, our 
conclusion regarding the species' overall extinction risk does not 
change based on consideration of status of the species within portions 
of the species' range, and thus we find that queen conch is not 
currently in danger, but is likely to become an endangered species 
within the foreseeable future throughout all of its range. Accordingly, 
we have determined that the queen conch warrants listing as a 
threatened species under the ESA.

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 (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 continued existence of the species or result 
in adverse modification or destruction of designated critical habitat 
(16 U.S.C. 1536). An endangered species automatically receives 
protections against ``take'' under section 9 of the ESA. The ESA 
defines take to mean ``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)). The ESA section 9 prohibitions do not 
automatically apply to species listed as threatened; however, we may 
extend any of these prohibitions to threatened species through a 
regulation issued under section 4(d) of the ESA (16 U.S.C. 1533(d)). 
Section 4(d) of the ESA also directs the Secretary of Commerce to 
develop regulations that the Secretary ``deems necessary and advisable 
to provide for the conservation of [a threatened] species.'' 
Recognition of the species' imperiled status through listing may also 
promote conservation actions by Federal and state agencies, foreign 
entities, private groups, and individuals.

Identifying ESA Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA (16 U.S.C. 1536(a)(2)) and joint NMFS 
and USFWS regulations (50 CFR part 402) require Federal agencies to 
consult with us on actions they authorize, fund, or carry out if those 
actions may affect the listed species or designated critical habitat. 
Based on currently available information, we conclude that examples of 
Federal actions that may affect the queen conch include but are not 
limited to: Fishery harvest and management, renewable energy projects, 
discharge of pollution from point sources, non-point source pollution, 
contaminated waste and plastic disposal, dredging, pile-driving, 
development of water quality standards, military activities, beach 
renourishment, coastal construction, and shoreline development.

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 (I) 
essential to the conservation of the species and (II) 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. ``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. Designation of 
critical habitat must be based on the best scientific data available 
and must take into consideration the economic, national security, and 
other relevant impacts of specifying any particular area as critical 
habitat.
    Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires 
that, to the maximum extent prudent and determinable, critical habitat 
be designated concurrently with the listing of a species, unless as 
described in section 4(b)(6)(C), critical habitat is not then 
determinable, in which case we may take an additional year to publish 
the final critical habitat determination (16 U.S.C. 1533(b)(6)(C)(ii)). 
In our proposal to list the queen conch, we requested information on 
the identification of specific features and areas in U.S. waters that 
may meet the definition of critical habitat for the queen conch (87 FR 
55200, September 8, 2022). We received and considered six comments that 
specifically provided information to inform the determination of 
critical habitat. We conclude that critical habitat is not determinable 
at this time for the following reasons: (1) Sufficient information and 
analysis are not currently available to assess the impacts of 
designation; and (2) Sufficient information and analysis are not 
currently available regarding the physical and biological features 
essential to conservation. We will continue to evaluate potential 
critical habitat for the queen conch, and we intend to consider 
critical habitat for this species in a separate action.

ESA Section 9 Take Prohibitions

    Because we are listing the queen conch as threatened, the 
prohibitions under section 9 of the ESA will not automatically apply to 
this species. As described below, ESA section 4(d) leaves it to the 
Secretary's discretion whether, and to what extent, to extend the 
section 9(a) prohibitions to threatened species, and authorizes us to 
issue regulations that are deemed

[[Page 11225]]

necessary and advisable to provide for the conservation of the species.

Protective Regulations Under Section 4(d) of the ESA

    As discussed previously, NMFS has flexibility under section 4(d) to 
tailor protective regulations based on the needs of and threats 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 queen conch in 
a future rulemaking.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review. The primary 
purpose of the Bulletin is to improve the quality and credibility of 
scientific information disseminated by the Federal government by 
requiring peer review. To satisfy our requirements under the Bulletin, 
we solicited peer review comments on the draft status review report 
from three scientists with specific knowledge regarding queen conch. We 
received and reviewed comments from these scientists, and, prior to 
publication of the proposed rule, their comments were incorporated into 
the status review report (Horn et al. 2022), which was then made 
available for public comment. Peer reviewer comments on the status 
review report are available at https://www.noaa.gov/organization/information-technology/information-quality-peer-review-id425.

Information Solicited

    Subsequent to this listing, as required by ESA, we will evaluate 
whether any locations within U.S. waters meet the definition of 
critical habitat for queen conch and designate any critical habitat as 
appropriate. We request interested persons to submit relevant 
information related to the identification of critical habitat and 
essential physical or biological features for this species, as well as 
economic or other relevant impacts of designation of critical habitat 
for the queen conch. Physical and biological features essential to the 
conservation of the species include, but are not limited to, features 
specific to queen conch habitats and life history characteristics 
within the following general categories: (1) space for individual 
growth and for normal behavior; (2) food, water, air, light, minerals, 
or other nutritional or physiological requirements; (3) cover or 
shelter; (4) sites for reproduction and development of offspring; and 
(5) habitats that are protected from disturbance or are representative 
of the historical, geographical, and ecological distributions of the 
species.
    In addition, while we are not proposing any protective regulations 
under section 4(d) at this time, we intend to propose protective 
regulations to conserve queen conch throughout its range in the future. 
These regulations may prohibit for the threatened queen conch one or 
more of the acts prohibited by section 9(a)(1) of the ESA for 
endangered species. Examples of measures that may be included in 
protective regulations include prohibiting the import, export, or take 
of the species and also specifying conditions under which import, 
export, or take of the species may be allowed. We solicit information 
to inform this determination and the development of any protective 
regulations for the queen conch. In addition to information on the 
potential conservation benefits of particular protective regulations, 
we solicit input on the associated cultural and socio-economic impacts 
that those regulatory measures may produce. Information on these topics 
may be submitted from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party directly to us (see ADDRESSES).

References

    A complete list of the references used in this final rule, and the 
corresponding proposed rule, is available upon request, and also 
available at: https://www.fisheries.noaa.gov/species/queen-conch.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the NEPA (See NOAA 
Administrative Order 216-6A).

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

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

Executive Order 13132, Federalism

    In accordance with E.O. 13132, agencies are required to take into 
account any federalism impacts of regulations under development. This 
Executive Order includes specific consultation directives for 
situations where a regulation will preempt state law, or impose 
substantial direct compliance costs on state and local governments 
(unless required by statute). Neither of those circumstances is 
applicable to this final listing determination. In keeping with the 
intent of the Administration and Congress to provide continuing and 
meaningful dialogue on issues of mutual state and Federal interest, the 
proposed rule was provided to the relevant agencies in each state in 
which the subject species occurs, and these agencies were invited to 
comment. Their comments were addressed with other comments in the 
Public Comments and Our Responses section.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: February 8, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES


0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, in the table in paragraph (e), under the 
subheading ``Molluscs,'' add an entry for ``Conch,

[[Page 11226]]

queen'' in alphabetical order by common name to read as follows:


Sec.  223.102  Enumeration of endangered marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Species \1\
----------------------------------------------------------------------------------------    Citation(s) for
                                                               Description of listed            listing           Critical habitat        ESA rules
         Common name                 Scientific name                   entity               determination(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Molluscs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Conch, queen................  Aliger gigas................  Entire species.............  [Insert Federal        NA.................  NA.
                                                                                          Register citation]
                                                                                          February 14, 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. 2024-02966 Filed 2-13-24; 8:45 am]
BILLING CODE 3510-22-P