[Federal Register Volume 67, Number 126 (Monday, July 1, 2002)]
[Proposed Rules]
[Pages 44132-44133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16528]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 020603140-2140-01,I.D. 050102G]
RIN 0648-AQ00
Regulations Governing the Taking and Importing of Marine Mammals;
Eastern North Pacific Southern Resident Killer Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking; request for information.
-----------------------------------------------------------------------
SUMMARY: NMFS anticipates proposing regulations to designate the
eastern North Pacific Southern Resident stock of killer whales (Orcinus
orca) as a depleted stock under the Marine Mammal Protection Act
(MMPA). NMFS recently reviewed the status of these whales under the
Endangered Species Act (ESA) and determined that the eastern North
Pacific Southern Resident stock does not qualify as a ``species'' as
defined in the ESA. However, this stock of whales has declined by 20
percent in the past 5 years, and evidence suggests that designation as
a depleted stock may be warranted. NMFS is requesting that interested
parties submit pertinent information and comments regarding the status
of this killer whale stock and potential conservation measures that may
benefit these whales.
DATES: Information must be received by August 30, 2002.
ADDRESSES: Information should be submitted to Chief, Protected
Resources Division, NMFS, 525 NE Oregon Street, Suite 500, Portland, OR
97232. Comments may also be sent via facsimile (fax) to (503) 230-5435,
but will not be accepted if submitted via e-mail or the Internet.
FOR FURTHER INFORMATION CONTACT: Dr. Thomas Eagle, Office of Protected
Resources, Silver Spring, MD (301) 713-2322, ext. 105, or Mr. Garth
Griffin, Northwest Regional Office, Portland, OR (503) 231-2005.
SUPPLEMENTARY INFORMATION:
Electronic Access
A list of the references used in this notice and other information
related to the status of this stock of killer whales is available on
the Internet at http://www.nwr.noaa.gov.
Background
Depleted Stocks Under the MMPA
Section 3(1)(A) of the Marine Mammal Protection Act (MMPA) (16
U.S.C. 1362(1)(A)) defines the term, ``depletion or
``depleted'', as any case in which ``the Secretary, after consultation
with the Marine Mammal Commission and the Committee of Scientific
Advisors on Marine Mammals ... determines that a species or population
stock is below its optimum sustainable population.'' Section 3(9) of
the MMPA (16 U.S.C. 1362(9)) defines ``optimum sustainable population
[(OSP)]...with respect to any population stock, [as] the number of
animals which will result in the maximum productivity of the population
or the species, keeping in mind the carrying capacity (K) of the
habitat and the health of the ecosystem of which they form a
constituent element.'' NMFS' regulations at 50 CFR 216.3 clarify the
definition of OSP as a population size that falls within a range from
the population level of a given species or stock that is the largest
supportable within the ecosystem (i.e., K) to its maximum net
productivity level (MNPL). MNPL is the abundance or population level
that results in the greatest net annual increment in population numbers
or biomass resulting from additions to the population from
reproduction, less losses due to natural mortality.
Section 2 of the MMPA (16 U.S.C. 1361) states that marine mammal
species, populations and/or stocks should not be permitted to fall
below their OSP level. Historically, MNPL has been expressed as a range
of values determined theoretically by estimating the stock size, in
relation to K, that will produce the maximum net increase in population
abundance. The estimated MNPL has been expressed as a range of values,
generally 50 to 70 percent of K (42 FR 12010, March 1, 1977). In 1977,
the midpoint of this range (60 percent of K) was used to determine
whether dolphin stocks in the eastern tropical Pacific Ocean were
depleted under the MMPA (42 FR 64548, December 27, 1977). The 60-
percent-of-K value was used in the final rule governing the taking of
marine mammals incidental to commercial tuna purse seine fishing in the
eastern tropical Pacific Ocean (45 FR 72178, October 31, 1980) and has
been used since that time for other status reviews under the MMPA. For
stocks of marine mammals, however, K is generally unknown. NMFS,
therefore, has used the best estimate of maximum historical abundance
as a proxy for K.
Section 115(a)(2) of the MMPA (16 U.S.C. 1383b(a)(2)) requires NMFS
to publish a notice in the Federal Register prior to proposing
regulations to designate a population stock of marine mammals as
depleted. The purpose of the notice is to assist NMFS in obtaining
scientific information from individuals and organizations concerned
with the conservation of marine mammals, from persons in industry which
might be affected by the determination, and from academic institutions.
In addition, NMFS is required to use, to the extent it determines to be
feasible, informal working groups of interested parties and other
methods to gather the necessary information.
The MMPA provides protection against the take, the definition of
which includes harassment, of marine mammals (MMPA section 102, 16
U.S.C 1372). The MMPA provides that a conservation plan shall be
prepared as soon as possible for a stock that is designated as
depleted, unless such a plan will not promote the conservation of the
stock (MMPA section 115(b)(1), 16 U.S.C 1383b(b)(1)). Furthermore, for
a stock designated as depleted under the MMPA, NMFS may develop and
implement conservation or management measures to alleviate any impacts
that are on areas of ecological significance to the depleted stock and
that may be causing the decline or impeding the recovery of the stock
(MMPA section 112(e); 16 U.S.C 1382(e)). Such measures shall be
developed and implemented after consultation with the Marine Mammal
Commission and the appropriate Federal agencies and after notice and
opportunity for public comment.
Eastern North Pacific Southern Resident Killer Whales
The killer whale is the largest member of the dolphin family
(Delphinidae), and the species is the most wide-ranging of all marine
mammals. Along the west coast of North America, killer whales occur
along the entire Alaskan coast, in British Columbia and Washington
inland waterways, and along the outer coasts of Washington, Oregon, and
California. North Pacific killer whales have been classified into three
forms
[[Page 44133]]
termed Residents, Transients, and Offshore whales. All three of these
forms are currently classified as the same biological species, O. orca.
The three forms vary in morphology, ecology, behavior, group size,
social organization, acoustic repertoire, and genetic characteristics.
Behavioral evidence suggests that Offshore and Transient pods (``pods''
are close-knit family groups ranging from 10 to 70 whales) rarely
interact with the Resident pods. Although the Transient form overlaps
extensively in range with the Resident form, genetic evidence suggests
that the two forms do not interbreed. Furthermore, distinct feeding
habits exist, with Transient killer whales primarily preying on other
marine mammals and Residents primarily subsisting on fishes (little is
known, however, about the habits of the Offshore form).
Resident whales in the North Pacific consist of the following
groups: western North Pacific Residents; western Alaska Residents;
southern Alaska Residents; eastern North Pacific Northern Residents;
and eastern North Pacific Southern Residents. Eastern North Pacific
Southern Residents occur in the inland waterways of southern British
Columbia and Washington, including the Georgia Strait, the Strait of
Juan de Fuca, and Puget Sound.
The abundance of the eastern North Pacific Southern Resident stock
has declined 20 percent in the past 5 years (1996-2001), and the
decline has been accompanied by changes in survival rates between age
and sex categories. NMFS recently reviewed the status of these whales
under the ESA and determined that the eastern North Pacific Southern
Resident stock does not qualify as a ``species'' as defined in the ESA
(NMFS, 2002). However, information gathered during the ESA status
review, including population viability analyses, suggests that
designating eastern North Pacific Southern Resident killer whales as a
depleted stock under the MMPA may be warranted.
Estimates of Historical Stock Size
The true K and MNPL are unknown for eastern North Pacific Southern
Resident killer whales. Furthermore, an empirical estimate of maximum
historical abundance is not available. When the annual census of the
population began in 1974, there were 71 whales in the population. This
count, however, followed the period in the 1960s and early 1970s when
at least 68 whales were removed or killed during capture operations for
public display. Thus, a minimum historical abundance could be estimated
to be approximately 140 killer whales if total removals were limited to
the 68 animals that were known to be killed or captured. Although
reasonably accurate numbers of animals removed by live capture exist,
the number killed by shooting or other human activity is unknown.
Therefore, the historical abundance may have been much greater than 140
whales.
Lacking sufficient information to support a direct estimate of
historical abundance, NMFS has examined indirect evidence for
historical stock size. An initial inspection of genetic diversity seen
in DNA data (Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001)
indicates that eastern North Pacific Southern Resident killer whales
have nearly the same number of alleles as Northern Residents (28 versus
35), despite a much smaller sample size (8 versus 126). This is
consistent with a hypothesis that Southern Residents may have recently
been a much larger population. In other words, if Northern Residents
can be viewed as representing the expected genetic diversity of
populations of their size (214), then Southern Residents may have been
a similar stock size in the recent past (NMFS, 2002).
Although there are no empirical estimates of the historical stock
size for eastern North Pacific Southern Resident killer whales, the
best available scientific information suggests a historical abundance
of approximately 140-200 whales. Under the MMPA, a stock is depleted if
its abundance is below MNPL, the lower bound of OSP. Using the inferred
historical stock size of 140-200 eastern North Pacific Southern
Resident killer whales as a proxy for K, the estimated MNPL for the
stock would be 84-120 whales (60 percent of K). The 2001 abundance of
78 killer whales is below even the most conservative (lowest) estimate
of MNPL for the stock.
NMFS completed a comprehensive status review under the ESA for this
stock of killer whales. To supplement that status review, NMFS is now
initiating a review of the status of the eastern North Pacific Southern
Resident stock of killer whales under the MMPA. NMFS will augment the
information obtained during its recent ESA status review with any other
available information regarding the stock's abundance relative to its
OSP to determine whether it warrants a depleted designation under the
MMPA.
Information Solicited
To ensure that the review is comprehensive and is based on the best
available data, NMFS is soliciting information and comments from any
interested person concerning the status of the eastern North Pacific
Southern Resident stock. It is requested that data, information, and
comments be accompanied by (1) supporting documentation such as maps,
logbooks, bibliographic references, personal notes, or reprints of
pertinent publications; and (2) the name of the person submitting the
data, his/her address, and any association, institution, or business
that the person represents. NMFS also seeks information on impacts on
areas of significance to the eastern North Pacific Southern Resident
stock that may be causing the decline or impeding the recovery of the
stock; on potential conservation measures that may be useful in
alleviating those impacts and rebuilding the stock; and on the
potential economic impacts and the potential biological benefits of
alternative conservation measures. This would include information on
potential effects of whale watching on resident killer whales in
Washington waters and measures that might be proposed to reduce or
mitigate such effects.
References
A complete list of all cited references is available via the
Internet (see Electronic Access) or upon request (see ADDRESSES).
Dated: June 7, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 02-16528 Filed 6-28-02; 8:45 am]
BILLING CODE 3510-22-S