[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31321-31324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12597]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 031003245-4160-02; I.D. 122702A]
RIN 0648-AR14
Designation of the AT1 Group of Transient Killer Whales as a
Depleted Stock Under the Marine Mammal Protection Act (MMPA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to designate the AT1 group of
transient killer whales as a depleted stock of marine mammals pursuant
to the MMPA. This action is based upon a status review conducted by
NMFS in response to a petition to designate as depleted a group of
transient killer whales in Alaska (known as the AT1 group). The
biological evidence indicates that the group is a population stock and
that the stock is depleted as these terms are defined in the MMPA. This
action is intended to promote the goals and objectives of MMPA.
DATES: Effective July 6, 2004.
FOR FURTHER INFORMATION CONTACT: Kaja Brix NOAA/NMFS, Alaska Region,
(907) 586-7235; or email at [email protected].
SUPPLEMENTARY INFORMATION:
Electronic Access
Information related to the petition and the status of the AT1 group
of killer whales is available on the Internet at the following address:
http://www.fakr.noaa.gov/protectedresources/whales/default.htm.
NMFS guidelines for preparing stock assessment reports, which
contain guidance for identifying population stocks of marine mammals,
may be found on the Internet at the following address: http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.
Background
NMFS received a petition on November 13, 2002, from the National
Wildlife Federation, on behalf of itself, Alaska Center for the
Environment, Alaska Community Action on Toxics, Center for Biological
Diversity, Coastal Coalition, Defenders of Wildlife, and Eyak
Preservation Council, to designate the AT1 group of transient killer
whales as a depleted population stock under the MMPA. NMFS published a
notice that the petition was available (67 FR 70407, November 22,
2002). After evaluating the petition, NMFS determined that the petition
contained substantial information indicating that the petitioned action
may be warranted (68 FR 3483, January 24, 2003). Following its
determination that the petitioned action may be warranted, NMFS
conducted a status review to evaluate whether the AT1 group is a
population stock and, if so, whether that stock is depleted. (The
report of the status review is available in electronic form; see
``Electronic Access''.) The status review concluded, based on the best
scientific information available, that the AT1 group is a separate
stock of killer whales. The status review also concluded, based on the
best scientific information available, that the AT1 stock is depleted,
as defined under the MMPA. Based on the status review, a proposed rule
to designate the AT1 group of transient killer whales as a depleted
stock under the MMPA was published in the Federal Register on October
24, 2003 (68 FR 60899), with a 60-day public comment period ending
January 22, 2004.
[[Page 31322]]
This final rule designates the AT1 group of transient killer whales
as a depleted stock under the Marine Mammal Protection Act. No
additional regulations are associated with this designation.
Comments and Responses
NMFS received 74 letters on the proposed rule containing 12
distinct categories of comments. A summary of these comments and NMFS'
responses are included below.
Comment 1: The full range of scientifically plausible explanations
for the AT1 pod's identity, stock status, and relationship to the ever-
changing environment of Prince William Sound has not been considered in
this determination.
Response: NMFS described a wide range of alternatives for the AT1
group's origin in the report of the status review; these alternatives
were summarized in the preamble of the proposed rule along with a
request for additional information related to AT1 killer whales. No new
alternatives were identified in comments on the proposed rule.
The full range of options for the status of the stock pursuant to
the petition is satisfied by considering whether the stock is depleted.
NMFS described sufficient evidence in the report of the status review
and in the preambles to the proposed rule and this final rule (see
discussion under the heading ``The Depleted Determination'') that the
status of the stock is ``depleted''.
The relationship between AT1 killer whales and their environment is
not entirely known. NMFS made its determination based upon the standard
required by the MMPA, which is best scientific information available.
Comment 2: There is no evidence that the group has ever reproduced
and no documented trends of abundance. The proposed determination had
very little discussion on environmental variation and possible effects
on AT1.
Response: The report of the status review noted that when the AT1
group was first identified in 1984, there were juvenile animals in the
group. These juveniles are the best available evidence that the killer
whales in this population stock have reproduced.
The group contained 22 whales in 1984, 11 whales after 1989, and
now has 9 or fewer whales. These numbers demonstrate a decline in the
abundance from 1984 to present (also see response to comment 3).
The status review and the proposed rule to designate the AT1 group
as a depleted stock state that no information is available on
historical abundance of the Eastern North Pacific transient stock of
killer whales or Alaska transients to provide abundance trends, but
that there has been documented a decline in the AT1 group of killer
whales since 1984. Environmental variability and its effects on AT1
killer whales are not documented; therefore, they were not discussed in
the proposed rule.
Comment 3: There has been an apparent decline in the population
since the Exxon Valdez oil spill. Was this documented by a census or an
estimate?
Response: The decline was documented by a series of censuses.
Comment 4: Seasonal observations on interactions between killer
whale groups are relatively subjective when examining interactions
between killer whale groups. Using genetic information to calculate
``migrant/generation'' would be more useful and scientifically
defensible.
Response: Although most observations of AT1 killer whales have been
made in summer months, association patterns in other killer whale
populations seen more frequently year-round have not shown any changes
in association patterns through the year. Therefore, no evidence exists
that suggests that summer association patterns cannot be used as
evidence for population structure. Mitochondrial DNA analysis and two
forms of microsatellite DNA analysis were conducted, and all 3 analyses
supported the hypothesis that the AT1 group represents a separate
population. Although calculating the number of migrants per generation
may be useful for some purposes (such as an analysis of whether a
putative population could sustain a certain level of bycatch because
immigration from another population was sufficient to replace the
animals removed), such an analysis was not necessary for this final
rule.
Comment 5: The stated ``K'' values were set in 1984. There has been
no re-evaluation that takes into account the profoundly changing
habitat in Prince William Sound over the last 20 years. The ``K'' value
could be highly variable in a rapidly changing environment.
Response: NMFS has not established a numerical value for carrying
capacity (K) for AT1 killer whales. The 1984 abundance is used to
demonstrate that the population is currently less than 60 percent of
its abundance in the recent past and that the population stock is,
therefore, depleted. The actual values for K and Maximum Net
Productivity Level (MNPL) are currently unknown and will be addressed
in the conservation plan prepared for this stock.
Comment 6: Based on the evidence presented in the petition to list
this group as a stock and designate it as depleted and on further
information in the proposed rule, the AT1 whales qualify under the MMPA
and NMFS' implementing regulations as a depleted stock.
Response: NMFS concurs and is designating the group as a depleted
stock of marine mammals.
Comment 7: The depleted designation should lead to the development
of more detailed information on the threats facing this population and
appropriate actions to respond to these threats.
Response: These issues will be considered in the development of the
conservation plan for this stock.
Comment 8: Because the AT1 population is in danger of extinction
throughout a significant part - possibly all - of its range and is
likely to become extinct within the foreseeable future, the proper
application of the scientific data shows that NMFS must list the stock
as endangered under the Endangered Species Act (ESA).
Response: This final rule is the result of a process initiated by
the receipt of a petition submitted to NMFS requesting that the AT1
group be designated as a depleted stock under the MMPA. An evaluation
of the status of AT1 killer whales under the ESA would include an
analysis to determine whether the stock is a distinct population
segment and, if so, whether the group is in danger of going extinct
throughout all or a significant portion of its range. Such an
evaluation was beyond the scope of the petition NMFS received.
Comment 9: NMFS should develop a long-term research plan for North
Pacific killer whales.
Response: Comprehensive research needed to assist in the recovery
of the AT1 killer whales will be identified in a conservation plan. In
a broader perspective, NMFS currently conducts research on killer whale
demographics in the North Pacific through research at the National
Marine Mammal Laboratory and through grants provided to independent
researchers. NMFS will consider approaches to incorporate current
efforts and planning into a coordinated long-term research plan for
North Pacific killer whales.
Comment 10: NMFS has stated that a catastrophic oil spill is the
single greatest threat to the stock. The AT1 group has already
undergone this event. Given the data available, it is clear fifteen
years after the oil spill that no designation or conservation plan
could achieve recovery.
[[Page 31323]]
Response: The designation of this group of killer whales as a
depleted stock is separate from the development of conservation
measures to promote the population's recovery, and the designation is
based upon the stock's abundance compared to its OSP. The potential
effectiveness of the conservation plan is not a criterion for
consideration in designating a stock as depleted. Regulatory measures
identified in a conservation plan to conserve and restore the stock
would require separate regulatory action, and appropriate economic
analyses would be conducted during such rulemaking. Public comments on
those proposed actions would be part of the rulemaking process.
Comment 11: A conservation plan may offer no prospects for recovery
yet may potentially jeopardize the lives and livelihoods of those who
depend on the resources of Prince William Sound, including a fishery
that has no documented history of interactions with the AT1 group.
Response: Conservation measures not likely to promote recovery of
the stock would not be included in a conservation plan. In addition,
see response to Comment 10.
Comment 12: The relationship between vessel noise and highly mobile
and opportunistic predators, such as the AT1 group of killer whales, is
speculative at this time. Reduction of vessel noise as a conservation
tool should be supported by peer-reviewed science prior to being
implemented.
Response: In the conservation plan, NMFS will analyze available
scientific information in determining whether conservation measures
regarding vessel noise are necessary to conserve and restore the stock.
Any necessary regulatory measures to conserve and restore the stock
would require separate regulatory action with information to support
it. (see also response to comment 10).
Changes From the Proposed Rule
The final rule contains no changes from the proposed rule.
The Depleted Determination
Because the AT1 group was part of the Eastern North Pacific
transient stock of killer whales prior to this action, the
determination required two steps. First, available evidence was
evaluated to determine whether the group is a population stock under
the MMPA. If so, the second step was to determine whether the abundance
of the newly identified population stock is below its optimum
sustainable population (OSP) and, therefore, depleted.
The AT1 Group as a Stock
NMFS' guidelines for assessing marine mammal stocks (See Electronic
Access) include guidelines for identifying population stocks of marine
mammals which state that many different types of information can be
used to identify stocks, reproductive isolation is proof of demographic
isolation, and demographically isolated groups of marine mammals should
be identified as separate stocks. These guidelines were based upon the
MMPA's definition of population stock and the purposes and polices of
the MMPA. The biological information discussed in the report of the
status review and in the preamble of the proposed rule, particularly
molecular genetics and associations (distribution and movements),
supports a determination that AT1 killer whales are demographically
isolated from other groups of killer whales. Therefore, based upon the
best scientific information available, NMFS has determined that the AT1
group of transient killer whales is a population stock.
Status of the Stock
Section 3(1)(A) of the 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 defines 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 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
which falls within a range from the population level of a given species
or stock that is the largest supportable within the ecosystem (K) to
MNPL. MNPL is population size expected to produce the greatest net
annual increment (increase) in population numbers resulting from
additions due to reproduction less losses due to natural mortality.
A population stock below its MNPL is, by definition, below OSP and,
thus, depleted under the MMPA. Historically, 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 purse seine fishing for yellowfin tuna 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, including killer whales, K is generally
unknown. NMFS, therefore, has used the best available estimate of a
stock's maximum historical abundance as a proxy for K.
As required by the MMPA, NMFS initiated consultation with the
Marine Mammal Commission related to the petition to designate the AT1
group of killer whales as a depleted population stock. In a letter
dated December 23, 2002, the Commission noted that there were
uncertainties regarding the relationships of the AT1 group to other
killer whales in the North Pacific. The Commission recommended as a
precautionary approach that, until these uncertainties are resolved,
NMFS should designate the AT1 group of transient killer whales as a
depleted stock.
There is no information on population trends or historical
abundance of the Eastern North Pacific transient stock of killer
whales, of which the AT1 group was a part prior to this final rule.
Similarly there is insufficient historical data on Alaska transients to
provide information on trends in abundance in Alaska. The AT1 group is
the only stock of transient whales whose recent history is known.
The available information, which was described in detail in the
report of the status review and summarized in the preamble to the
proposed rule, supports the conclusion that the AT1 group is a
population stock of marine mammals. The genetics data suggest that the
stock size was larger than 22 animals prior to 1984. However, its
abundance prior to 1984 is unknown. Consequently, there is no estimate
for the maximum historical abundance. In 1984, the stock had 22
members, and its current abundance has been reduced to nine or fewer
whales. The current abundance is less than 60 percent of the known
abundance in 1984; therefore, the stock is below its MNPL (the lower
limit of its OSP). Consequently, the stock meets the statutory
definition of depleted. Based on the best scientific information
available, NMFS is designating the AT1 group of transient killer whales
in Alaska as a depleted population stock under the MMPA.
[[Page 31324]]
References
References are available upon request (See FOR FURTHER INFORMATION
CONTACT).
Classification
This final rule is exempt from listing for the purposes of
Executive Order 12866. Depletion designations under the MMPA are
similar to ESA listing decisions, which are exempt from the requirement
to prepare an environmental assessment or environmental impact
statement under the National Environmental Policy Act. See NOAA
Administrative Order 216-6.03(e)(1). Thus, NMFS has determined that the
depletion designation of this stock under the MMPA is exempt from the
requirements of the National Environmental Policy Act of 1969, and an
Environmental Assessment or Environmental Impact Statement is not
required.
At the proposed rule stage, the Chief Counsel for Regulation,
Department of Commerce, certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule will not have a
significant economic impact on a substantial number of small entities.
No comments were received regarding this certification or the economic
impact of the rule. As a result, no regulatory flexibility analysis is
required, and none has been prepared.
This final rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act of 1980. This
final rule does not contain policies with federalism implications
sufficient to warrant preparation of a federalism assessment under
Executive Order 13132.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Exports, Imports, Marine
mammals, Transportation.
Dated: May 28, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 216 is amended as
follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq. unless otherwise noted.
0
2. In Sec. 216.15,a new paragraph (i) is added to read as follows:
Sec. 216.15 Depleted species.
* * * * *
(i) AT1 stock of killer whales (Orcinus orca). The stock includes
all killer whales belonging to the AT1 group of transient killer whales
occurring primarily in waters of Prince William Sound, Resurrection
Bay, and the Kenai Fjords region of Alaska.
[FR Doc. 04-12597 Filed 6-2-04; 8:45 am]
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