[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Proposed Rules]
[Pages 42499-42501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20282]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224 and 226

[Docket No. 010731194-1194-01; I.D. 070601B]


Listing Endangered and Threatened Species and Designating 
Critical Habitat: Petition To List Southern Resident Killer Whales

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

ACTION: Notice of finding; request for information.

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SUMMARY: NMFS received a petition to list the Eastern North Pacific 
Southern Resident stock of killer whales (Orcinus orca) as endangered 
or threatened species under the Endangered Species Act (ESA) and to 
designate critical habitat for this stock under that Act. NMFS 
determined that the petition presents substantial scientific 
information indicating that a listing may be warranted and will 
initiate an ESA status review. NMFS solicits information and comments 
pertaining to these killer whale populations and their habitats and 
seeks suggestions for peer reviewers for any proposed listing 
determination that may result from the agency's status review of the 
species.

DATES: Information and comments on the action must be received by 
October 12, 2001.

ADDRESSES: Information and comments on this action should be submitted 
to Chief, Protected Resources Division, NMFS, 525 NE Oregon Street--
Suite 500, Portland, OR 97232. Comments will not be accepted if 
submitted via email or the internet. However, comments may be sent via 
fax to (503) 230-5435.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, NMFS, Northwest Region, 
(503) 231-2005 or Tom Eagle, NMFS, Office of Protected Resources, (301) 
713-2322 ext. 105.

SUPPLEMENTARY INFORMATION:

[[Page 42500]]

Electronic Access

    Reference materials regarding this rule can also be obtained from 
the internet at http://www.nwr.noaa.gov.

Background

    On May 2, 2001, NMFS received a petition from the Center for 
Biological Diversity, Center for Whale Research, The Whale Museum, 
Ocean Advocates, Washington Toxics Coalition, Orca Conservancy, 
American Cetacean Society, Friends of the San Juans, People for Puget 
Sound, Cascade Chapter of the Sierra Club and Ralph Munro, to list the 
Eastern North Pacific Southern Resident stock of killer whales as an 
endangered or threatened species under the ESA. The petitioners further 
requested concurrent designation of critical habitat for this species 
in accordance with the ESA. On July 16, 2001, NMFS received a letter 
from the petitioners asking NMFS to add Project SeaWolf as an 
additional co-petitioner. Copies of this petition are available from 
NMFS (See ADDRESSES).
    The petition presents detailed narrative information, based on the 
available data from the annual killer whale censuses, that show that 
the stock (as defined) has gone through periods of growth and decline 
from a low of fewer than 70 animals in 1973 to a high of 97 individuals 
in 1996 followed by period of decline to 82 individuals at the 
beginning of 2000. The petition further describes the killer whale's 
distribution worldwide and provides arguments for further delineating 
Southern Resident killer whales as a distinct population segment. The 
arguments include morphological, dietary, behavioral and genetic 
differences between groups of killer whales in the Pacific Northwest, 
and exclusive utilization of summertime home range. Additional 
arguments are presented based on regional cultural significance and 
management status under the Marine Mammal Protection Act (MMPA). 
Variability in recruitment and survival, reduced food resources, 
residual effects from live captures in the 1960s and 70s on the current 
age and sex structure of the population, behavioral changes associated 
with increased whale watching disturbance, and increased levels of 
toxic contaminants are highlighted as possible threats faced by the 
species. The petition includes a population viability analysis, 
distributional maps, and a bibliography of supporting documentation.
    Prior to receiving the petition, and in response to concerns raised 
over a recent decline in the number of Southern Resident killer whales, 
NMFS convened a workshop in April 2000 to review the status of ongoing 
killer whale research, help coordinate future research efforts and 
discuss many of the same issues raised in the petition. Workshop 
participants presented and discussed information on killer whale 
population dynamics, status of adjacent killer whale communities, 
genetic evidence of stock structure, bioaccumulation of contaminants, 
increased whale watching pressure, and prey availability. Census 
counts, begun in 1974 using photo-identification methodology, revealed 
fluctuations in the number of whales from year to year and allowed the 
documentation of individual births and deaths within the Southern 
Resident stock. Analysis of the available genetic data showed that the 
Southern Resident killer whales are genetically distinguishable from 
the northern resident stock, the nearest (geographically) resident 
killer whale group, but that they share common genetic traits with 
other resident groups farther to the north, in Alaska. Genetic 
information also showed that Southern Resident whales are different 
from the sympatric Eastern North Pacific Transient stock of killer 
whales. Contaminant analysis showed that, for males, Southern Residents 
have higher levels of some contaminants than northern residents or 
resident whales in Alaska but significantly lower than transient killer 
whales. Data on the growth of recreational and commercial whale 
watching, during the past 20 years, showed that summer vessel traffic 
increased in the seasonal core range of the Southern Residents, but 
studies on the influence of vessels on the behavior, feeding and energy 
expenditures of these whales have been inconclusive. Little is known 
about the winter foraging habitat or prey of the Southern Residents. 
However, the summer diet is dominated by salmonids and chinook salmon 
have been observed to be a preferred prey in Puget Sound and the 
Northwest Straits. Data on seasonal abundance of chinook and other 
salmonids in Washington indicate periodic declines but detailed 
information on prey density, trends in wild versus hatchery fish, and 
foraging success between Southern Resident pods and between adjacent 
killer whale populations were unavailable at the workshop. Workshop 
participants noted that resident killer whale stocks in British 
Columbia (including Southern Residents) were listed as threatened by 
the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) 
but that listing under Canadian law does not carry the same legal 
definitions or mandates as the ESA.

Analysis of Petition

    Section 4 (b)(3) of the ESA contains provisions concerning 
petitions from interested persons requesting the Secretary of Commerce 
(Secretary) to list certain species under the ESA (16 U.S.C. 1533 
(b)(3)(A)). Section 4 (b)(3)(A) requires that, to the maximum extent 
practicable, within 90 days after receiving such a petition, the 
Secretary must make a finding whether the petition presents substantial 
scientific information indicating that the petitioned action may be 
warranted. This includes determining whether there is evidence that the 
subject populations may qualify as a ``species'' under the ESA, in 
accordance with NMFS/U.S. Fish and Wildlife Service policy regarding 
the identification of distinct vertebrate population segments (61 FR 
4722, February 7, 1996).
    Regulations implementing the ESA (50 CFR 424.14 (b)) define 
``substantial information'' as the amount of information that would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted. In evaluating a petitioned action, NMFS 
considers several factors, including whether the petition contains 
detailed narrative justification for the recommended measure, 
describing, based on available information, past and present numbers 
and distribution of the species involved and any threats faced by the 
species (50 CFR 424.14 (b)(2)(ii)). In addition, NMFS considers whether 
the petition provides information regarding the status of the species 
over all or a significant portion of its range (50 CFR 424.14 
(b)(2)(iii)).
    NMFS evaluated whether the petition met the standard for 
``substantial information'' and concluded it was appropriate to accept 
the petition to list the species. The petition highlights key issues 
for consideration by NMFS, including: (1) genetic, behavioral, and 
ecological evidence bearing on the issue of whether to define Southern 
Resident killer whales as a distinct population segment; (2) population 
data documenting a recent decline in Southern Resident killer whales 
and analyses indicating that these whales may be at some risk of 
extinction; and (3) an array of threats that may account for the 
decline in Southern Resident killer whales.

Petition Finding

    After reviewing the information contained in the petition, as well 
as other available information, NMFS determines that the petition 
presents

[[Page 42501]]

substantial scientific information indicating the petitioned action may 
be warranted. In accordance with section 4 (b)(3)(B) of the ESA, NMFS 
will complete a status review and report its findings by May 2, 2002.

Listing Factors and Basis for Determination

    Under section 4 (a)(1) of the ESA, a species can be determined to 
be threatened or endangered based on any of the following factors: (1) 
The present or threatened destruction, modification, or curtailment of 
a species' habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting the species continuing 
existence. Listing determinations are based solely on the best 
available scientific and commercial data after taking into account any 
efforts being made by any state or foreign nation to protect the 
species.

Information Solicited

    To ensure that the status review is complete and based on the best 
available scientific and commercial data, NMFS solicits information and 
comments concerning the status of killer whale populations world wide 
with emphasis in the Eastern North Pacific Ocean from California to 
Alaska (see DATES and ADDRESSES). Specifically, the agency is seeking 
available information on: (1) historical and current known ranges of 
resident (fish eating) and transient (mammal-eating) killer whales; (2) 
spatial and seasonal distribution with particular focus on current and 
historical habitat utilization; (3) genetic variability in resident, 
transient, and offshore killer whale populations; (4) demographic 
movements among resident or transient killer whales; (5) trends in 
killer whale foraging habits and seasonal prey abundance; (6) trends in 
environmental contamination by persistent organic pollutants (e.g., 
polychlorinated-biphenyls (PCBs) including congener specific data) as 
well as other contaminants (e.g. toxic metals); (7) contaminant burdens 
in prey species, especially salmonids; (8) impacts caused by human 
recreational activities (e.g., whale watching, boating); (9) historic 
removals of killer whales including human caused mortality associated 
with live capture operations, military activities, or fisheries 
interactions; (10) current or planned activities and their possible 
impacts on this species (e.g., removals or habitat modifications); (11) 
efforts being made to protect resident killer whales or improve their 
habitat; and (12) non-human related factors that may have contributed 
to the recent decline of the Southern Resident killer whale (i.e., 
climatic or oceanographic regime shifts, diseases, biotoxins).
    NMFS also requests information describing the quality and extent of 
marine habitats for Southern Resident killer whales, as well as 
information on areas that may qualify as critical habitat. Areas that 
include the physical and biological features essential to the recovery 
of the species should be identified. Essential features include, but 
are not limited to the following: (1) Habitat for individual and 
population 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 rearing of 
offspring; and (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of the species. NMFS is also seeking information and maps 
describing natural and manmade changes within the species' current and 
historical range in the Eastern North Pacific Ocean from California to 
Alaska.
    For areas potentially qualifying as critical habitat, NMFS also 
requests information describing (1) the activities that affect the area 
or could be affected by the designation, and (2) the economic costs and 
benefits of additional requirements of management measures likely to 
result from the designation. The economic cost to be considered in a 
critical habitat designation under the ESA is the probable economic 
impact ``of the [critical habitat] designation upon proposed or ongoing 
activities'' (50 CFR 424.19). NMFS must consider the incremental costs 
specifically resulting from a critical habitat designation that are 
above the economic effects attributable to listing the species. 
Economic effects attributable to listing include actions resulting from 
section 7 consultations under the ESA to avoid jeopardy to the species 
and from the taking prohibitions under section 9 or 4 (d) of the ESA. 
Comments concerning economic impacts should distinguish the costs of 
listing from the incremental costs that can be directly attributed to 
the designation of specific areas as critical habitat.
    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service, published a series of policies regarding listings under the 
ESA, including a policy for peer review of scientific data (59 FR 
34270). The intent of the peer review policy is to ensure that listings 
are based on the best scientific and commercial data available. NMFS 
now solicits the names of recognized experts in the field who could 
take part in the peer review process for the agency's status review of 
Southern Resident killer whales. Peer reviewers may be selected from 
the academic and scientific community, tribal and other Native American 
groups, Federal and state agencies, the private sector, and public 
interest groups.

    Authority: Authority: 16 U.S.C. 1531 et seq.

    Dated: August 6, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-20282 Filed 8-10-01; 8:45 am]
BILLING CODE 3510-22-S