[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Proposed Rules]
[Pages 76673-76682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27929]
[[Page 76673]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 041213348-4348-01; I.D. 110904E]
RIN 0648-AS95
Endangered and Threatened Wildlife and Plants: Proposed
Threatened Status for Southern Resident Killer Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: We, the NMFS, have completed an update on the status review of
Southern Resident killer whales (Orcinus orca) under the Endangered
Species Act (ESA). Based on the review of the best available scientific
and commercial information, including new data, published papers, and
workshop reports available since the review in 2002, we are proposing
to list the Southern Resident killer whales as threatened because these
killer whales constitute a distinct population segment (DPS) under the
ESA and are likely to become endangered in the foreseeable future
throughout all or a significant portion of their range. We are not
proposing to designate critical habitat at this time, but are
requesting public comments on the issues pertaining to this proposed
rule.
DATES: Comments must be received by March 22, 2005. Requests for public
hearings must be made in writing by February 7, 2005. We have already
scheduled public hearings on this proposed rule as follows:
Thursday, February 17, 2005, from 1:30 - 4:30 pm and 6:30 - 9 pm at
the Seattle Aquarium, 1483 Alaskan Way, in Seattle, WA 98101;
Monday, February 28, 2005, from 1:30 - 4:30 pm and 6:30 - 9 pm at
the Friday Harbor Labs, 620 University Road, Friday Harbor, WA 98250.
The 1:30 - 4:30 pm afternoon sessions will be provided for local
practitioners and stakeholder parties, and the 6:30 - 9:30 pm evening
``open house'' sessions are designed for broader public participation.
Additional information regarding the meetings is available via the
Internet at http://www.nwr.noaa.gov.
ADDRESSES: Comments should be submitted to Chief, Protected Resources
Division, 525 NE Oregon Street, Suite 500, Portland, OR, 97232-2737.
Comments may also be submitted electronically via the Federal e-
Rulemaking Portal at http://www.regulations.gov or by sending an e-mail
message to [email protected].
FOR FURTHER INFORMATION CONTACT: Mr. Garth Griffin, Northwest Regional
Office, Portland, OR (503) 231-2005, or Ms. Marta Nammack, Office of
Protected Resources, Silver Spring, MD (301) 713-1401, ext. 180.
SUPPLEMENTARY INFORMATION:
Electronic Access
A list of references cited in this notice is available via the
Internet at http://www.nwr.noaa.gov. Additional information, including
agency reports and written comments, is also available at this Internet
address.
Background
On May 2, 2001, we received a petition from the Center for
Biological Diversity and 11 co-petitioners (CBD, 2001) to list Southern
Resident killer whales as threatened or endangered under the ESA. On
August 13, 2001, we provided notice of our determination that the
petition presented substantial information that a listing may be
warranted and requested information to assist with a status review to
determine if Southern Resident killer whales warranted listing under
the ESA (66 FR 42499). To assist in the status review, we formed a
Biological Review Team (BRT) of scientists from our Alaska, Northwest,
and Southwest Fisheries Science Centers. We convened a meeting on
September 26, 2001, to gather technical information from co-managers,
scientists, and individuals having research or management expertise
pertaining to killer whale stocks in the North Pacific Ocean.
Additionally, the BRT discussed its preliminary scientific findings
with Tribal, State and Canadian co-managers on March 25, 2002. The BRT
considered information from the petition, the September and March
meetings, and comments submitted in response to our information request
to prepare a final scientific document on Southern Resident killer
whales (NMFS, 2002).
After conducting the status review, we determined that listing
Southern Resident killer whales as a threatened or endangered species
was not warranted because Southern Resident killer whales did not
constitute a species as defined by the ESA. The population was
considered in the context of the global taxon (i.e., all killer whales
worldwide) and we found that Southern Resident killer whales did not
meet the significance criteria for consideration as a DPS. The finding,
along with supporting documentation, was published on July 1, 2002 (67
FR 44133). The 2002 status review and other documents supporting the
``not warranted'' finding are available on the Internet (see Electronic
Access). Because of the uncertainties regarding killer whale taxonomy
(i.e., whether the killer whale should be considered as one species or
as multiple species and/or subspecies), we announced that it would
reconsider the taxonomy of killer whales within 4 years.
The scientific information evaluated during the ESA status review
indicated that Southern Resident killer whales may be depleted under
the Marine Mammal Protection Act (MMPA). We initiated consultation with
the Marine Mammal Commission (Commission) in a letter dated June 25,
2002, and published an advance notice of proposed rulemaking (ANPR) on
July 1, 2002 (67 FR 44132), to request pertinent information regarding
the status of the stock and potential conservation measures that may
benefit these whales. After considering comments received in response
to the ANPR and from the Commission, we published a proposed rule to
designate the Southern Resident stock of killer whales as depleted (68
FR 4747; January 30, 2003) and solicited comments on the proposal.
Based on the best scientific information available, consultation with
the Commission, and consideration of public comment, we determined that
the Southern Resident stock of killer whales was depleted under the
MMPA (68 FR 31980; May 29, 2003) and announced our intention to prepare
a Conservation Plan.
On December 18, 2002, the Center for Biological Diversity (and
other plaintiffs) challenged our ``not warranted'' finding under the
ESA in U.S. District Court. The U.S. District Court for the Western
District of Washington issued an order on December 17, 2003, which set
aside our ``not warranted'' finding and remanded the matter to us for
redetermination of whether the Southern Resident killer whales should
be listed under the ESA (Center for Biological Diversity, et al., v.
Robert Lohn, et al., 296 F. Supp. 2d. 1223 W.D. Wash. 2003). The court
order held that ``[w]hen the best available science indicates that the
'standard taxonomic distinctions' are wrong . . . NMFS must rely on the
best available science.''
Although we announced in 2002 that the status of killer whales
would be revisited in 4 years, the schedule for reevaluating Southern
Resident killer
[[Page 76674]]
whales was expedited as a result of the court's order. We reconvened a
BRT in 2004 to consider new scientific and commercial data available
since 2002 and update the status review for Southern Residents in
accordance with that order. We announced the status review update and
requested that interested parties submit pertinent information to
assist us with the update (69 FR 9809, March 2, 2004). In addition, we
co-sponsored a Cetacean Taxonomy workshop in 2004, which included a
special session on killer whales. The papers and reports from the
workshop were made available to the BRT.
In August 2004, we met with Washington State and Tribal co-managers
to provide information on the status review update and receive
comments. These comments were evaluated by the BRT, who then prepared a
final status review document for Southern Resident killer whales (NMFS,
2004).
Biological Background
Killer whales are one of the most strikingly pigmented of all
cetaceans, making field identification easy. Killer whales are black
dorsally and white ventrally, with a conspicuous white oval patch
located slightly above and behind the eye. A highly variable gray or
white saddle is usually present behind the dorsal fin. Saddle shape
varies among individuals, pods, and from one side to the other on a
single animal. Sexual dimorphism occurs in body size, flipper size, and
height of the dorsal fin. More detailed information regarding this
species' distribution, behavior, genetics, morphology, and physiology
are contained in the BRT's status review documents (NMFS, 2002, 2004)
and the Washington State Status Report for the Killer Whale (Wiles,
2004).
Killer whales are classified as top predators in the food chain and
the world's most widely distributed marine mammal (Leatherwood and
Dahlheim, 1978; Heyning and Dahlheim, 1988). Although observed in
tropical waters and the open sea, they are most abundant in coastal
habitats and high latitudes. In the northeastern Pacific Ocean, killer
whales occur in the eastern Bering Sea (Braham and Dahlheim, 1982) and
are frequently observed near the Aleutian Islands (Scammon, 1874;
Murie, 1959; Waite et al., 2001). They reportedly occur year-round in
the waters of southeastern Alaska (Scheffer, 1967) and the intercoastal
waterways of British Columbia and Washington State (Balcomb and Goebel,
1976; Bigg et al., 1987; Osborne et al., 1988). There are occasional
reports of killer whales along the coasts of Washington, Oregon, and
California (Norris and Prescott, 1961; Fiscus and Niggol, 1965; Rice,
1968; Gilmore, 1976; Black et al., 1997; NMFS, 2004), both coasts of
Baja California (Dahlheim et al., 1982), the offshore tropical Pacific
(Dahlheim et al., 1982), the Gulf of Panama, and the Galapagos Islands.
In the western North Pacific, killer whales occur frequently along the
Soviet coast in the Bering Sea, the Sea of Okhotsk, the Sea of Japan,
and along the eastern side of Sakhalin and the Kuril Islands (Tomilin,
1957). There are numerous accounts of their occurrence off China (Wang,
1985) and Japan (Nishiwaki and Handa, 1958; Kasuya, 1971; Ohsumi,
1975). Data from the central Pacific are scarce. They have been
reported off Hawaii, but do not appear to be abundant in these waters
(Tomich, 1986; Caretta et al., 2001).
The killer whale is the largest species within the family
Delphinidae. Various scientific names have been assigned to the killer
whale (Hershkovitz, 1966; Heyning and Dahlheim, 1988). These various
names can be explained by sexual and age differences in the size of the
dorsal fin, individual variations in color patterns, and the
cosmopolitan distribution of the animals. The genus Orcinus is
currently considered monotypic with geographical variation noted in
size and pigmentation patterns. Two proposed Antarctic species, O.
nanus (Mikhalev et al., 1981) and O. glacialis (Berzin and Vladimirov,
1982; Berzin and Vladimirov, 1983), both appear to refer to the same
type of smaller individuals. However, because of significant
uncertainties regarding the limited specimen data, these new taxa have
not been widely accepted by the scientific community. New observations
of color pattern, size, habitat and feeding ecology have led to the
conclusion that there are three types of killer whales in Antarctica
(Pitman and Ensor, 2003). Recent genetic investigations note marked
differences between some forms of killer whale (Hoelzel and Dover,
1991; Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and
Ellis, 2001). Killer whale taxonomy was reviewed as part of the
``Workshop on Shortcomings of Cetacean Taxonomy in Relation to Needs of
Conservation and Management'' held on April 30 - May 2, 2004 in La
Jolla, California, and the results were published in a report (Reeves
et. al., 2004).
Ecotypes of Killer Whales
Killer whales in the Eastern North Pacific region (which includes
the petitioned whale pods) have been classified into three forms, or
ecotypes, termed residents, transients, and offshore whales.
Significant genetic differences occur among resident, transient, and
offshore killer whales (Stevens et al., 1989; Hoelzel and Dover, 1991;
Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis,
2001; Hoelzel et al., 2002). The three forms also vary in morphology,
ecology, and behavior. All of these characteristics play an important
role in determining whether the monotypic species O. orca can be
subdivided under the ESA.
Resident Killer Whales
Resident killer whales in the Eastern North Pacific are noticeably
different from both the transient and offshore forms. The dorsal fin of
resident whales is rounded at the tip and falcate (curved and
tapering). Resident whales have a variety of saddle patch pigmentations
with five different patterns recognized (Baird and Stacey, 1988).
Resident whales occur in large, stable pods with membership ranging
from 10 to approximately 60 whales. Their presence has been noted in
the waters from California to Alaska. The primary prey of resident
whales is fish. A recent summary of the differences between resident
and transient forms is found in Baird (2000).
Resident killer whales in the North Pacific consist of the
following groups: Southern, Northern, Southern Alaska (includes
Southeast Alaska and Prince William Sound whales), western Alaska, and
western North Pacific Residents.
Southern Residents: The Southern Resident killer whale assemblage
contains three pods-- J pod, K pod, and L pod--and is considered a
stock under the MMPA. Their range during the spring, summer, and fall
includes the inland waterways of Puget Sound, Strait of Juan de Fuca,
and Southern Georgia Strait. Their occurrence in the coastal waters off
Oregon, Washington, Vancouver Island, and more recently off the coast
of central California in the south and off the Queen Charlotte Islands
to the north has been documented. Little is known about the winter
movements and range of the Southern Resident stock. Southern Residents
have not been seen to associate with other resident whales, and
mitochondrial and nuclear genetic data suggest that Southern Residents
interbreed with other killer whale populations rarely if at all
(Hoelzel et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and
Ellis, 2001).
Northern Residents: The Northern Resident killer whale assemblage
[[Page 76675]]
contains approximately 16 pods. They range from Georgia Strait (British
Columbia) to Southeast Alaska (Ford et al., 2000; Dahlheim, 1997). On
occasion they have been known to occur in Haro Strait (west of San Juan
Island, Washington). Although some overlap in range occurs between the
Northern and Southern Residents, no intermixing of pods has been noted.
However, in Southeast Alaska, Northern Resident whales are seen in
close proximity to Southern Alaska Residents (Dahlheim et al., 1997),
and there may be limited gene flow between the two populations (Hoelzel
et al., 1998; Barrett-Lennard, 2000; Barrett-Lennard and Ellis, 2001).
Alaska Residents: There are two groups of Alaska Resident animals,
Southern Alaska Residents and Western Alaska Residents. The resident
whales of Southeast Alaska and Prince William Sound comprise the
Southern Alaska Resident killer whale assemblage. At least 15 pods have
been identified in these two regions. Resident killer whales
photographed in Southeast Alaska travel frequently to Prince William
Sound and intermix with all resident groups from this area (Dahlheim et
al., 1997; Matkin and Saulitis, 1997). Prince William Sound Resident
whales have not been seen in Southeast Alaska, but have been noted off
Kodiak Island intermixing with other, yet unnamed, resident pods
(Dahlheim, 1997; NMFS, 2004). Vessel surveys in the southeastern Bering
Sea have provided preliminary estimates of approximately 400 killer
whales (Waite et al., 2001) and preliminary counts, based on photo-
identification, suggest a minimum of 800 individual resident whales
inhabiting this region (NMFS, 2004).
Western North Pacific Residents: The presence of resident killer
whales has been documented along the coastline of Russia (NMFS, 2004).
It is likely that resident killer whales also occur along the coastline
of Japan, but additional information is required to confirm this
hypothesis.
Transient Killer Whales
Transient whales occur throughout the Eastern North Pacific with a
preference towards coastal waters. Their geographical range overlaps
that of the resident and offshore whales. Individual transient killer
whales have been documented to move great distances reflecting a large
home range (Goley and Straley, 1994). There are several differences
between transient and resident killer whales; these have most recently
been summarized by Baird (2000). The dorsal fin of transient whales
tends to be more erect (i.e., straighter at the tip) than those of
resident and offshore whales. Saddle patch pigmentation of Transient
killer whales is restricted to three patterns (Baird and Stacey, 1988).
Pod structure is small (e.g., fewer than 10 whales) and dynamic in
nature. The primary prey of transient killer whales is other marine
mammals. Transient whales are not known to intermix with resident or
offshore whales. Recent genetic investigations indicate that up to
three genetically different groups of transient killer whales exist in
the eastern North Pacific (the ``west coast'' Transients, the ``Gulf of
Alaska Transients'' and the AT1 pod) (Barrett-Lennard, 2000; Barrett-
Lennard and Ellis, 2001).
Offshore Killer Whales
Offshore killer whales are similar to resident whales, but can be
distinguished (i.e., their fins appear to be more rounded at the tip
with multiple nicks on the trailing edge, smaller overall size, less
sexual dimorphism), but these characteristics need to be further
quantified. Offshore whales have been seen in considerably larger
groups (up to 200 whales) than residents or transients have. They are
known to range from central coastal Mexico to Alaska and occur in both
coastal and offshore waters (300 miles off Washington State). While
foraging, it is assumed that the main target is fish, but observations
of feeding events are extremely limited. Offshore whales are not known
to intermingle with resident or transient whales. Genetic analysis
suggests that offshore whales are substantially reproductively isolated
from other killer whale populations (Barrett-Lennard, 2000; Hoelzel et
al., 2004).
Consideration as a ``Species'' under the ESA
The ESA defines a species 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.''
Guidance on what constitutes a DPS is provided by the joint NMFS-U.S.
Fish and Wildlife Service (FWS) interagency policy on vertebrate
populations (61 FR 4722; February 7, 1996). To be considered a DPS, a
population, or group of populations, must be ``discrete'' from other
populations and ``significant'' to the taxon (species or subspecies) to
which it belongs. A population segment of a vertebrate species may be
considered discrete if:
(1) It is markedly separated from other populations of the same
taxon as a consequence of physical, physiological, ecological or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may also provide evidence of this separation; or
(2) It is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the ESA.
If a population segment is considered discrete, we must then
consider whether the discrete segment is ``significant'' to the taxon
to which it belongs. Criteria that can be used to determine whether the
discrete segment is significant include:
(1) Persistence of the discrete population segment in an ecological
setting unusual or unique for the taxon;
(2) Evidence that loss of the discrete population segment would
result in a significant gap in the range of the taxon;
(3) Evidence that the discrete population segment represents the
only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range; and
(4) Evidence that the discrete population segment differs markedly
from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these criteria to
be considered significant. Furthermore, the list of criteria is not
exhaustive; other criteria may be used, as appropriate.
Killer Whale Taxonomy
Correctly identifying the killer whale taxon is critical because
the criteria used to evaluate ``significance'' of a DPS are defined
relative to the larger taxon to which it belongs. Uncertainty about the
taxonomic status of killer whales posed a problem for the 2002 BRT. In
particular, it noted that the current designation of one global species
for killer whales was likely inaccurate because there was increasing
evidence to suggest that additional species or subspecies of killer
whales probably exist. The previous prevailing concept of a single
species has recently evolved into a diversity of views that include the
possibility of multiple species. Recent new observations and data on
morphology and genetics of both the Antarctic and North Pacific killer
whales have re-opened the question, and two divergent bodies of expert
opinion have emerged. At the 2004 Cetacean Taxonomy workshop, experts
prepared cases for two taxonomic scenarios. Under one line of
reasoning, killer whales are a single highly variable species, with
locally differentiated
[[Page 76676]]
forms, or ecotypes, representing recently evolved and relatively
ephemeral forms not deserving species status. According to the opposing
body of opinion, congruence of several lines of evidence for the
distinctness of sympatrically (i.e., same place, same time) occurring
forms support multiple species.
In the North Pacific, the seasonally sympatric resident and
transient killer whale forms show consistent differences in
mitochondrial and nuclear genetic markers, coloration, acoustic calls,
and foraging habits. The majority of experts participating in the
killer whale working group at the Cetacean Taxonomy workshop believed
that the resident and transient ecotypes in the North Pacific might be
distinct species or subspecies.
The 2004 BRT reviewed new information and the competing lines of
evidence cited during the Cetacean Taxonomy workshop and considered
whether killer whales are a single species or multiple species. After
discussion of this information, the BRT reached consensus that,
although multiple species may exist and may be confirmed in the future,
the present data do not adequately support recognition of any new
species. In particular, the BRT concluded that, provisionally, North
Pacific transients and residents should be considered as belonging to a
single species.
The 2004 BRT next considered the question of whether North Pacific
residents, transients and offshore whales likely belong to different
subspecies, although current standard taxonomic classification does not
include any named subspecies. A number of differences between residents
and transients have been suggested to support subspecific separation
between the two groups: (1) Residents and transients differ on average
in external morphology, including dorsal-fin size and shape, saddle-
patch shape, and pigmentation; (2) differences between the two ecotypes
have been found in skull features, although the sample size is still
small and uncontrolled for age and sex; (3) residents and transients
are sympatric in the summer range, but no intermingling or
interbreeding has ever been observed; (4) the two groups have markedly
different feeding specializations and social organization; (5) the two
ecotypes exhibit markedly different acoustic dialects and acoustic
practices that may relate to differences in feeding ecology; (6) the
two forms are genetically divergent at both mitochondrial DNA (mtDNA)
and nuclear DNA markers, and the average level of divergence between
the residents and transients is higher than the average level of
divergence within populations of either group; and (7) residents and
transients fall into two different global mtDNA clades. The BRT
concluded that Southern Residents likely belong to a subspecies
separate from that of transients.
The 2004 BRT agreed that if the Southern Residents belong to a
subspecies separate from that of the transients, the subspecies would
include the Southern Residents and the Northern Residents, as well as
the resident killer whales of Southeast Alaska, Prince William Sound,
Kodiak Island, the Bering Sea and Russia. In short, the subspecies
would include all of the resident, fish-eating killer whales of the
North Pacific. The rationale for this decision was that all of these
groups are apparently fish-eating specialists, occupy relatively
similar habitats, and appear to be genetically more closely related to
each other than to sympatric transient populations. After considering
the arguments for existence of subspecies and the conclusions of the
Cetacean Taxonomy workshop, the BRT concluded that the taxon to use for
determining a DPS under the ESA should be the North Pacific residents,
an unnamed subspecies of O. orca. After considering whether the North
Pacific offshore or eastern Tropical Pacific killer whales belonged to
the same taxon as the North Pacific residents, the BRT concluded that
they did not.
Determination of DPS
Discreteness
The first criterion for determining if a population or group is a
DPS is that it meets the test for discreteness. Two types of genetic
data for killer whales have proven useful for identifying DPS
boundaries in other species: microsatellite (nuclear) DNA and
mitochondrial DNA (mtDNA). The magnitude of the genetic differences
between Southern and Northern Residents was about half that found
between residents and transients and about twice that found between
Northern Residents and Southern Alaska Residents. These differences
indicate that the Southern Resident, Northern Resident, and Alaska
Resident populations are reproductively isolated populations and that
the isolation of Southern and Northern Residents from each other is
greater than the isolation between Northern and Southern Alaska
Residents. There may be some gene flow between the Northern Residents
and Southern Alaska Residents (Hoelzel et al., 1998; Barrett-Lennard,
2000; Barrett-Lennard and Ellis, 2001).
Two mtDNA sequences have been found in North Pacific Resident
killer whales. The Southern Residents have one sequence and the
Northern Residents have another that differs by one DNA nucleotide.
Southern Alaska Residents have both sequences. Both males and females
inherit the mtDNA of their mother, so these data indicate that females
from the Southern and Northern Resident populations have not been
migrating between populations within at least the recent evolutionary
history of these populations.
The understanding of killer whale population genetic structure has
expanded considerably since the last status review in 2002. In
particular, the mtDNA differentiation among eastern North Pacific
resident, transient and offshore populations can now be seen in the
context of variation worldwide. The most notable result from the new
mtDNA data is the lack of strong mtDNA structure worldwide, suggesting
that the current distribution of killer whales populations may be
relatively young on an evolutionary scale (e.g., several hundred
thousand years compared to the approximate 5 million year old age of
the Orcinus genus and possibly associated with a population bottleneck
followed by a worldwide expansion). With regard to identifying DPSs,
one of the implications of the new data is that the relative degree of
mtDNA divergence among populations is not necessarily a good predictor
of the length of time that the populations have evolved independently.
For example, animals with the ``southern resident'' haplotype have been
found in populations from Washington (the Southern Residents), Alaska,
Russia, Newfoundland and the United Kingdom. Evolutionarily, these
populations are almost certainly more closely related to other
geographically proximate populations than to each other (a hypothesis
supported by the microsatellite data) and therefore, share a mtDNA
haplotype purely by chance. Thus, it would be inappropriate to rely
heavily on simple mtDNA divergence as a criterion for identifying a
DPS, especially on a global scale. On a local scale, however, mtDNA
remains useful for helping to identify populations, especially when
combined with other types of information.
In addition to more mtDNA data, the amount of nuclear
microsatellite data expanded greatly in the last 2 years, both in terms
of numbers of whales and loci analyzed. Within the eastern North
Pacific, both the mtDNA and microsatellite data remain consistent with
a hypothesis of four to five resident populations, at least two to
three transient populations and at least one offshore population. The
issue of
[[Page 76677]]
whether any contemporary gene flow occurs among eastern North Pacific
populations remains unresolved, but the microsatellite data are
consistent with low levels of gene flow (at most a few mating events
among populations per generation). Despite some uncertainty about the
evolutionary history that produced the current patterns of variation,
both the mtDNA and the microsatellite data indicate a high degree of
contemporary reproductive isolation among eastern North Pacific killer
whale populations.
The BRT concluded that Southern Residents are an independent
population that is discrete from other North Pacific resident killer
whale populations. Southern Resident whales have a core summer range
that is spatially separate from other North Pacific Resident whales
including their closest neighbor, the Northern Residents. In addition,
Southern Residents exhibit behaviors unique with respect to other North
Pacific Residents. Southern Residents exhibit a distinct ``greeting''
behavior. They have not been observed using rubbing beaches or taking
fish from longline gear, which appear to be unique to other North
Pacific Resident Populations. Based on range, demography, behavior, and
genetics, the BRT determined that Southern Residents meet the criterion
for ``discreteness'' under the DPS policy.
Significance
The second test for determining if a population is a DPS is its
significance to the taxon to which it belongs. The BRT discussed at
length the significance of the Southern Residents with respect to the
North Pacific resident taxon. The BRT concluded that the Southern
Residents are significant with regard to the North Pacific resident
taxon and, therefore, should be considered a DPS. The arguments
favoring significance were as follows:
Ecological setting. The Southern Residents appear to occupy an
ecological setting distinct from the other North Pacific resident
populations. In particular, the Southern Residents are the only North
Pacific resident population to spend a substantial amount of time in
the California Current ecosystem, an ocean habitat that differs
considerably from the Alaskan Gyre occupied by the Alaska Residents and
Northern Residents. There is some evidence of differences in prey
utilization, with Southern and Northern Residents favoring chinook
salmon and certain Alaska Residents also eating groundfish such as
halibut and turbot.
Range. The BRT discussed data related to the Southern Residents'
year round and summer core ranges and concluded that loss of the
Southern Residents would result in a significant gap in the range of
the North Pacific resident taxon. In particular, the Southern Residents
are the only North Pacific resident population to be sighted in the
coastal areas off of California, Oregon and Washington and are the only
population to regularly inhabit Puget Sound. Based on experience from
other cetaceans, the BRT found little reason to believe that these
areas would be repopulated by other North Pacific resident populations
in the foreseeable future should the Southern Resident population
become extinct.
This conclusion differs from that of the 2002 BRT for several
reasons. New sightings of the Southern Residents in recent years have
provided additional information on the amount of overlap in range
between Southern Residents and other North Pacific resident
populations. Also, the 2002 BRT considered transient, offshore, and
other resident killer whales and their respective range overlap with
Southern Resident killer whales when determining if the loss of
Southern Resident would represent a significant gap in the range of the
global taxon. The 2004 BRT considered only the overlap with other North
Pacific residents.
Genetic differentiation. The Southern Residents differ markedly
from other North Pacific resident populations at both nuclear and
mitochondrial genes. The Southern Residents also differ from other
North Pacific resident populations in the frequency of certain saddle
patch variants, a trait believed to have a genetic basis.
Behavioral and cultural diversity. The BRT noted that culture
(knowledge passed through learning from one generation to the next) is
likely to play an important role in the viability of killer whale
populations. For example, the Southern Residents may have unique
knowledge of the timing and location of salmon runs in the southern
part of the North Pacific Residents' range. The BRT also noted that
there was some evidence that cultural traditions, such as greeting
behavior, beach rubbing, and utilization of prey from longlines,
differed among the resident populations.
Conclusions
The BRT concluded: (1) although multiple species of O. orca may
exist and be confirmed in the future, there is currently insufficient
evidence to describe any new species; and (2) provisionally the North
Pacific Residents and transients should be considered to belong to one
species; however, (3) there is sufficient information to indicate that
there is likely a North Pacific Resident subspecies of O. orca. Given
the District Court's direction, the BRT considered this unnamed
subspecies as the reference taxon for making a DPS determination and
concluded that Southern Resident killer whales are discrete from other
populations within the North Pacific Resident taxon and are significant
to the North Pacific Resident taxon. The BRT also considered the
hypothesis that the North Pacific Residents and offshores belong to the
same subspecies, and concluded that Southern Residents would also meet
the DPS criteria under this alternative taxonomic scenario.
The 2002 BRT had also explored the plausibility of various taxa and
DPS scenarios, including Southern Residents as a DPS of a North Pacific
Resident taxon. The 2002 BRT was almost evenly split on the question of
whether the Southern Residents would be a DPS of a putative North
Pacific Resident taxon and there was only minor support to the idea
that Southern Residents would be a DPS of a taxon consisting of North
Pacific residents and offshores. In contrast, the 2004 BRT was more
confident that the Southern Residents should be considered a DPS under
either scenario. The 2004 BRT discussed this increase in support for
the Southern Residents as a DPS and attributed it primarily to the
amount of new information that has been collected since 2002. For
example, knowledge about worldwide patterns of genetic variation in
killer whales has increased dramatically and has demonstrated that
sharing of a similar mitochondrial DNA haplotype does not necessarily
indicate a close evolutionary relationship between two populations.
This is important because the offshores and Southern Residents are
characterized by very similar mtDNA haplotypes, a factor that
influenced the conclusions of the 2002 BRT. In addition, the 2004 BRT
was aware of recently collected information about the social structure,
morphology, behavior and diet of offshore killer whales that was
unavailable at the time of the 2002 status review. This information
tends to suggest that the offshores are more distinct from resident
killer whales than was appreciated by the 2002 BRT. Finally, knowledge
about ecological and behavioral diversity within killer whales has
increased as a result of ongoing studies in British Columbia, Alaska,
and the Russian Far East. The BRT generally concluded that this new
information tended to suggest
[[Page 76678]]
substantial ecological differentiation between the Southern Residents
and other populations.
Risk Assessment
Section 4(a)(1) of the ESA and the listing regulations (50 CFR part
424) set forth procedures for listing species. We must determine,
through the regulatory process, if a species is endangered or
threatened based upon any one or a combination of the following
factors: (1) the present or threatened destruction, modification, or
curtailment of its 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 human-made factors affecting its continued
existence. The 2004 BRT identified the factors that currently pose a
risk for Southern Residents and discussed whether they might continue
in the future. Concern remains about whether reduced quantity or
quality of prey are affecting the Southern Resident population. In
addition, levels of organochlorine contaminants are not declining
appreciably and those of many ``newly emerging'' contaminants (e.g.,
brominated flame retardants) are increasing, so Southern Residents are
likely at risk for serious chronic effects similar to those
demonstrated for other marine mammal species (e.g., immune and
reproductive system dysfunction). Other important risk factors that may
continue to impact Southern Residents are oil spills, as well as noise
and disturbance from vessel traffic.
The BRT conducted a Population Viability Analysis (PVA) to
synthesize the potential biological consequences of a small population
size, a slowly increasing or a declining population trend, and
potential risk factors. The probability of the Southern Resident
population going extinct was estimated using demographic information
from the yearly census through 2003. Both the probability of extinction
(defined as <1 male or 1 female) as well as the probability of ``quasi-
extinction,'' (defined as <10 males or 10 females) were determined,
because the BRT believed that a population at the quasi-extinction
level would be ``doomed'' to extinction, even though literal extinction
might still take decades for long-lived organisms, such as killer
whales. Under the assumption that population growth rates in the future
will accurately be predicted by the full 29-year time series of
available data (the most optimistic scenario considered), the model
predicted the probability of Southern Residents becoming extinct was
less than 0.1 to 3 percent in 100 years and 2 to 42 percent in 300
years. If a quasi-extinction threshold was used instead of actual
extinction, the predicted probability of meeting the threshold ranged
from 1 to 15 percent in 100 years and 4 to 68 percent in 300 years. For
both scenarios, the higher percentages in each range were associated
with higher probability and magnitude of potential catastrophic
mortality events (e.g., oil spills, disease outbreaks), as well as with
a smaller carrying capacity (i.e., K = 100). When it was assumed that
the population survival for a subset (the last 10 years) of all data
available would best predict the future (the most pessimistic scenario
considered), the analysis predicted a probability of extinction of 6 to
19 percent in 100 years and 68 to 94 percent in 300 years. If a quasi-
extinction threshold was used in lieu of actual demographic extinction,
the predicted probability of meeting the threshold ranged from 39 to 67
percent in 100 years to 76 to 98 percent in 300 years.
The PVA modeled combinations of a variety of parameters, some of
which are unknown (e.g., carrying capacity and probability of
catastrophic mortality), so multiple scenarios were analyzed in order
to address the uncertainty of how these parameters would affect the
probability that the population would go extinct. For the unknown
parameters, a range of inputs were used in the model and this resulted
in a range of results. The PVA produced some high probabilities for
extinction, which were associated with the highest levels of potential
catastrophic mortality, small carrying capacity, and when only a subset
of available data was used. Scenarios incorporating the most optimistic
parameters produced probabilities for extinction that were low, but not
insignificant. There is no indication that the optimistic scenario is
the most likely and therefore, the PVA extinction probabilities, even
under the most optimistic conditions, indicate that Southern Resident
killer whales are at risk.
The population dynamics of the Southern Residents describe a
population that is at risk of extinction, due either to incremental
small-scale impacts over time (e.g., reduced fecundity or subadult
survivorship) or to a major catastrophe (e.g., disease outbreak or oil
spill). Additionally, the small size of this killer whale DPS makes it
potentially vulnerable to Allee effects (e.g., inbreeding depression)
that could cause a major decline. Furthermore, the small number of
breeding males, as well as possible reduced fecundity and subadult
survivorship in the L-pod, may limit the population's potential for
rapid growth in the near future. Although the Southern Resident DPS has
demonstrated the ability to recover from lower levels in the past and
has shown an increasing trend over the last several years, the factors
responsible for the decline are unclear, may still exist and may
continue to persist, which would potentially preclude a substantial
population increase.
Summary of Conclusions
Although multiple species of killer whales may exist and may be
confirmed in the future, the 2004 BRT concluded that present data do
not adequately support designation of any new species. Accordingly,
North Pacific transients and residents should be considered to belong
to a single species. The BRT agreed that Southern Residents likely
belong to a subspecies that includes the Southern and Northern
Residents, as well as the resident killer whales of Southeast Alaska,
Prince William Sound, Kodiak Island, the Bering Sea and Russia (but not
the transients or offshores). Thus, the smallest taxon to which the
Southern Residents belong would be resident killer whales in the North
Pacific, an unnamed subspecies of O. orca. The BRT unanimously
concluded that the Southern Residents are discrete from other North
Pacific resident killer whale populations. The BRT also concluded that
the Southern Residents are significant with respect to the North
Pacific resident taxon and therefore should be considered a DPS.
Factors that might pose a future risk to the Southern Resident
population are: reduced quantity and quality of prey; persistent
pollutants that could cause immune or reproductive system dysfunction;
oil spills; and noise and disturbance from vessel traffic. The BRT
conducted a PVA and the most optimistic model (29-year data set)
predicted that the probability of Southern Residents becoming extinct
was less than 0.1 to 3 percent in 100 years and 2 to 42 percent in 300
years. Using the most pessimistic model (the last 10 years of data;
quasi-extinction threshold), the probability of meeting the threshold
ranged from 39 to 67 percent in 100 years to 76 to 98 percent in 300
years. For both scenarios, the higher percentages in each range were
associated with higher probability and magnitude of potential
catastrophic mortality events (e.g., oil spills), as well as with a
smaller carrying capacity (i.e., K = 100).
Overall, the BRT was concerned about the viability of the Southern
Resident DPS and concluded that it is at risk of
[[Page 76679]]
extinction, because of either small-scale impacts over time (e.g.,
reduced fecundity or subadult survivorship) or a major catastrophe
(e.g., disease outbreak or oil spill). Additionally, the small size of
this killer whale DPS makes it potentially vulnerable to Allee effects
(e.g., inbreeding depression).
Proposed Determination
The ESA defines an endangered species as any species in danger of
extinction throughout all or a significant portion of its range, and a
threatened species as any species likely to become an endangered
species in the foreseeable future throughout all or a portion of its
range (16 U.S.C. 1532 (6) and (20)). Section 4(b)(1) of the ESA
requires that the listing determination be 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 those efforts,
if any, being made by any state or foreign nation to protect and
conserve the species.
We have reviewed the petition, the reports of the BRT (NMFS, 2002,
2004), co-manager comments, Cetacean Taxonomy workshop papers and
reports, and other available published and unpublished information, and
we have consulted with species experts and other individuals familiar
with killer whales. On the basis of the best available scientific and
commercial information, the Southern Resident killer whale population
meets the discreteness and significance criteria for a DPS. The genetic
differences, spatial separation, unique behavior, and demography
indicate that the Southern Resident killer whale population segment is
discrete from other population segments. The gap in the range of the
North Pacific Resident killer whale taxon that would occur if the
Southern Resident killer whale population segment were to disappear is
an important factor indicating that the Southern Resident killer whale
population segment is significant with regard to the North Pacific
Resident killer whale taxon, though other factors such as unique
ecological setting, frequency of certain saddle patch variants, and
greeting behavior lend further support.
This DPS is not presently in danger of extinction throughout all or
a significant portion of its range. The small population increase in
the past several years and population increases after previous
declines, the presence of reproductive age males in each pod, several
juvenile males reaching the age of sexual maturity in the next 2 to 6
years and several juvenile females reaching reproductive age in a few
years all indicate that the Southern Resident killer whale DPS is not
presently in danger of extinction. Based on our evaluation of the best
available scientific information, however, the Southern Resident killer
whale DPS is threatened (likely to become a endangered in the
foreseeable future throughout all or a significant portion of its
range). This threatened determination is based on concerns regarding
the population decline from 1996-2001, the limited number of
reproductive age males, the presence of females of reproductive age
that are not having calves, and that the factors for the decline may
continue to persist until more is known and actions are taken. The
small population size of the Southern Residents and their socially
cohesive nature makes them susceptible to catastrophic events such as
oil spills and disease outbreaks. While the PVA included some high
probabilities for extinction, particularly at the highest levels of
catastrophic mortality, the PVA was conducted under the assumption that
the Southern Residents are a closed population and also included Allee
effects (e.g., inbreeding depression) for the small population. This is
a conservative approach until the uncertainty regarding breeding
patterns is more thoroughly understood. Therefore, NMFS proposes to
list the Southern Resident killer whale DPS as threatened.
Conservation Measures
Conservation measures that may apply to listed species include
conservation measures implemented by tribes, states, foreign nations,
local governments, and private organizations. Also, Federal, tribal,
state, and foreign nations' recovery actions (16 U.S.C. 1533(f)),
Federal consultation requirements (16 U.S.C. 1536), and prohibitions on
taking (16 U.S.C. 1538) constitute conservation measures. In addition,
recognition through Federal government or state listing promotes public
awareness and conservation actions by Federal, state, tribal
governments, foreign nations, private organizations, and individuals.
The Southern Resident killer whale stock was designated as depleted
under the MMPA, and a Conservation Plan is under development. In
addition to the Conservation Planning process, NMFS has responded to
requests for immediate conservation actions by implementing and
supporting several programs. Working in partnerships with The Seattle
Aquarium and The Whale Museum, we have supported education, outreach
and stewardship activities to increase public awareness about the
conservation status and needs of killer whales. To promote responsible
viewing of killer whales, we have also provided support for additional
hours of on-water stewardship through the Soundwatch program and
enforcement presence through the Washington Department of Fish and
Wildlife (WDFW).
On April 3, 2004, the Washington Fish and Wildlife Commission voted
to add Washington State's killer whale population to the list of the
State's endangered species. The State endangered designation is given
to native Washington species that are seriously threatened with
extinction throughout all or a significant portion of that range within
the state (WAC 232-12-297). The designation directs special management
attention and priority to recover the species in Washington. WDFW is
working with us on conservation strategies for killer whales.
Southern Resident killer whales are listed as endangered and
Northern Residents are listed as threatened under Canada's Species at
Risk Act (SARA). Under SARA ``endangered species'' means a wildlife
species that is facing imminent extirpation or extinction and
``threatened species'' means a wildlife species that is likely to
become an endangered species if nothing is done to reverse the factors
leading to its extirpation or extinction. Canada's Department of
Fisheries and Oceans has convened a Recovery Team, which includes WDFW
and NMFS staff members, and has begun developing a Recovery Plan for
Southern and Northern Resident Whales under the SARA.
In addition to conservation and recovery planning efforts, our
Northwest Fisheries Science Center (NWFSC) is engaged in an active
research program for Southern Resident killer whales. Research that is
currently being conducted is designed to fill identified data gaps and
to improve our understanding of the risk factors that may be affecting
the decline or recovery of the Southern Resident killer whales. The new
information from research will be used to enhance our understanding of
the risk factors affecting recovery thereby improving our ability to
develop effective management measures. The Conservation Plan under the
MMPA will contain both management measures based on the known current
condition and research objectives from the NWFSC Long-Range Research
Plan.
Prohibitions and Protective Measures
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These
[[Page 76680]]
prohibitions apply to all individuals, organizations and agencies
subject to U.S. jurisdiction. Section 4(d) of the ESA directs the
Secretary of Commerce (Secretary) to implement regulations ``to provide
for the conservation of [threatened] species,'' that may include
extending any or all of the prohibitions of section 9 to threatened
species. Section 9(a)(1)(g) also prohibits violations of protective
regulations for threatened species implemented under section 4(d). We
will evaluate protective regulations pursuant to section 4(d) for
Southern Resident killer whales and if necessary propose such
regulations in a forthcoming rule that will be published in the Federal
Register.
Sections 7(a)(2) and (4) of the ESA require Federal agencies to
consult with us to ensure that activities they authorize, fund, or
conduct are not likely to jeopardize the continued existence of a
listed species or a species proposed for listing, or to adversely
modify critical habitat or proposed critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with us.
Examples of Federal actions that may affect Southern Resident
killer whales include coastal development, oil and gas development,
seismic exploration, point and non-point source discharge of persistent
contaminants, contaminated waste disposal, water quality standards,
emerging chemical contaminant practices, vessel operations and noise
level standards and fishery management practices.
Sections 10(a)(1)(A) and (B) of the ESA provide us with authority
to grant exceptions to the ESA's Section 9 ``take'' prohibitions.
Section 10(a)(1)(A) scientific research and enhancement permits may be
issued to entities (Federal and non-Federal) for scientific purposes or
to enhance the propagation or survival of a listed species. The type of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets killer
whales.
Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take
listed species, as long as the taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity. The types
of activities potentially requiring a section 10(a)(1)(B) incidental
take permit include scientific research, not targeting killer whales,
that incidentally takes Southern Resident killer whales.
Our Policies on Endangered and Threatened Wildlife
On July 1, 1994, we and FWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270) and a policy to identify, to the maximum
extent possible, those activities that would or would not constitute a
violation of section 9 of the ESA (59 FR 34272).
Role of Peer Review
The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. Prior to a
final listing, we will solicit the expert opinions of three qualified
specialists, concurrent with the public comment period. Independent
specialists will be selected from the academic and scientific
community, Federal and state agencies, and the private sector.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
The intent of this policy is to increase public awareness of the
effect of our ESA listing on proposed and ongoing activities within the
species' range. We will identify, to the extent known at the time of
the final rule, specific activities that will be considered likely to
result in violation of section 9, as well as activities that will not
be considered likely to result in violation. Activities that we believe
could result in violation of section 9 prohibitions against ``take'' of
the Southern Resident killer whale DPS include, but are not limited to,
the following:
1. Coastal development that adversely affects Southern Resident
killer whales (e.g., dredging, land clearing and grading, waste
treatment).
2. Discharging or dumping toxic chemicals or other pollutants into
areas used by Southern Resident killer whales.
3. Operating vessels in a manner that disrupts foraging, resting or
care for young or results in noise levels that disrupt foraging,
communication, resting or care for young.
4. Land/water use or fishing practices that result in reduced
availability of prey species during periods when Southern Resident
killer whales are present.
We believe, based on the best available information, the following
actions will not result in a violation of Section 9:
1. Federally funded or approved projects for which ESA section 7
consultation has been completed, and that are conducted in accordance
with any terms and conditions we provide in an incidental take
statement accompanying a biological opinion.
2. Takes of killer whales that we authorize pursuant to section 10
of the ESA.
These lists are not exhaustive. They are intended to provide some
examples of the types of activities that we might or might not consider
as constituting a take of Southern Resident killer whales under the ESA
and its regulations.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(3)) as: (1) the specific areas within the geographical area
occupied by the species, at the time it is listed in accordance with
the ESA, in which are found those physical or biological features (a)
essential to the conservation of the species and (b) which may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by the species at the time it is
listed upon a determination that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the ESA is no longer necessary.
Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires
that, to the extent prudent and determinable, critical habitat be
designated concurrently with the listing of a species. Designations 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. Once critical habitat is designated, section 7 of the ESA
requires Federal agencies to ensure that they do not fund, authorize or
carry out any actions that are likely to destroy or adversely modify
that habitat. This requirement is in addition to the section 7
requirement that Federal agencies ensure that their actions do not
jeopardize the continued existence of listed species.
We are currently in the information-gathering phase, compiling
information to prepare a critical habitat proposal for Southern
Resident killer whales. In previous Federal Register notices (69 FR
9809, March 2, 2004; and 66 FR 42499, August 13, 2001) we requested
specific information on critical habitat and are again seeking public
input and information to assist in gathering and analyzing the best
available scientific data to support critical habitat
[[Page 76681]]
designations. We will continue to meet with comanagers and other
stakeholders to review this information and the overall designation
process. We will then initiate rulemaking with the publication of a
proposed designation of critical habitat, opening a period for public
comment and the opportunity for public hearings.
Joint NMFS/FWS regulations for listing endangered and threatened
species and designating critical habitat at section 50 CFR 424.12(b)
state that the agency ``shall consider those physical and biological
features that are essential to the conservation of a given species and
that may require special management considerations or protection
(hereafter also referred to as 'Essential Features').'' Pursuant to the
regulations, such requirements include, but are not limited to the
following: (1) space 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 breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally; (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species. These regulations go on to
emphasize that the agency shall focus on essential features within the
specific areas considered for designation. These features ``may
include, but are not limited to, the following: spawning sites, feeding
sites, seasonal wetland or dryland, water quality or quantity,
geological formation, vegetation type, tide, and specific soil types.''
Southern Resident killer whales reside for part of the year in the
inland waterways of the Strait of Georgia, Strait of Juan de Fuca, and
Puget Sound, particularly during the spring, summer and fall. Southern
Residents visit coastal sites off Washington, Oregon and Vancouver
Island and are known to travel as far south as central California and
as far north as the Queen Charlotte Islands, British Columbia.
Information on the range of Southern Residents along the outer Pacific
Coast is limited, with only 27 confirmed coastal sightings over the
last 20 years (NMFS, 2004). Killer whale habitat utilization is dynamic
and does not appear to include use of specific breeding, nursing or
resting areas. Foraging areas are dependent on variable temporal and
spatial patterns of migratory prey species. These characteristics
present challenges in identifying critical habitat for Southern
Resident killer whales. The physical or biological features of their
habitat include:
(1) Water quality to support growth and development;
(2) Prey species of sufficient quantity, quality and availability
to support growth and development;
(3) Sound levels that do not exceed thresholds that inhibit
communication or foraging activities or result in temporary or
permanent hearing loss; and
(4) Safe passage conditions to support migration and foraging.
We are seeking information and comment on the appropriateness of
considering these features for critical habitat designation.
The geographical area occupied by Southern Resident Killer Whales,
where these features may be found, includes the Strait of Georgia,
Strait of Juan de Fuca, Puget Sound, coastal Washington, Oregon and
California. We are seeking comment and information on the specific
areas within this geographical area where these features may be found.
Section 4(b)(2) of the ESA requires the Secretary to consider the
``economic impact, impact on national security, and any other relevant
impact,'' of designating a particular area as critical habitat. For
this, section 4(b)(2) authorizes the Secretary to exclude from a
critical habitat designation those particular areas where the Secretary
finds that the benefits of exclusion outweigh the benefits of
designation, unless excluding that area will result in extinction of
the species. As such, we seek information regarding the conservation
benefits of designating areas in the Strait of Georgia, Strait of Juan
de Fuca, Puget Sound, coastal Washington, Oregon and California as
critical habitat. We also seek information on the economic benefit of
excluding areas from the critical habitat designation, and the economic
benefits of including an area as part of the critical habitat
designation. In keeping with the guidance provided by the Office of
Management and Budget (2000, 2003), we seek information that would
allow it to monetize these effects to the extent possible, as well as
information on qualitative impacts to economic values. We are also
seeking information on impacts to national security and any other
relevant impacts of designating critical habitat in these areas.
In accordance with the Secretarial Order on American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act, we will coordinate with Federally recognized American
Indian Tribes on a Government-to-Government basis to determine how to
make critical habitat assessments in areas that may impact Tribal trust
resources. In accordance with our regulations at 50 CFR 424.13, we will
consult as appropriate with affected states, interested persons and
organizations, other affected Federal agencies, and, in cooperation
with the Secretary of State, with the country or countries in which the
species concerned are normally found or whose citizens harvest such
species from the high seas. Data reviewed may include, but are not
limited to, scientific or commercial publications, administrative
reports, maps or other graphic materials, information received from
experts, and comments from interested parties.
Public Comments
We exercised our best professional judgment in developing this
proposal to list Southern Resident killer whales. To ensure that the
final action resulting from this proposal will be as accurate and
effective as possible, we are soliciting comments and suggestions from
the public, other governmental agencies, the Government of Canada, the
scientific community, industry, and any other interested parties.
Comments are encouraged on this proposal as well as on the Status
Review (See DATES and ADDRESSES) . Specifically, we are interested in
information regarding: (1) the factors we considered in determining
whether the Southern Resident killer whale population is significant to
the North Pacific resident killer whale taxon; (2) biological or other
relevant data concerning any threats to Southern Resident killer
whales; (3) the range, distribution, and abundance of Southern Resident
killer whales; (4) current or planned activities within the range of
Southern Resident killer whales and their possible impact on Southern
Resident killer whales; (5) efforts being made to protect Southern
Resident killer whales; and (6) areas that may qualify as critical
habitat.
We will review all public comments and any additional information
regarding the status of Southern Resident killer whales and will
complete a final determination within 1 year of publication of this
proposed rule, as required under the ESA. Final promulgation of the
regulation(s) on this species will consider the comments and any
additional information we receive, and such communications may lead to
a final regulation that differs from this proposal.
[[Page 76682]]
Classification
National Environmental Policy Act
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. 2d825 (6th Cir.
1981), We have concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (NEPA). (See NOAA Administrative Order 216-6.)
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 rule is exempt from review under Executive Order
12866. This proposed rule does not contain a collection-of-information
requirement for the purposes of the Paperwork Reduction Act.
Federalism
In keeping with the intent of the Administration and Congress to
provide continuing and meaningful dialogue on issues of mutual State
and Federal interest, this proposed rule will be given to the relevant
state agencies in each state in which the species is believed to occur,
who will be invited to comment. We have conferred with the State of
Washington in the course of assessing the status of Southern Resident
killer whales, and considered, among other things, state and local
conservation measures. Washington has listed killer whales under the
Washington Administrative Code 232-12-014 and is coordinating with us
to develop a State recovery plan. As the process continues, we intend
to continue engaging in informal and formal contacts with Washington,
and other affected local or regional entities, giving careful
consideration to all written and oral comments received. We also intend
to consult with appropriate elected officials in the establishment of a
final rule.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, exports, imports,
transportation.
Dated: December 15, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 223 is
proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
2. In Sec. 223.102, paragraph (c), add the following to the List
of Threatened Marine and Anadromous Species, in alphabetical order
under MARINE MAMMALS:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(c) Marine Mammals.
* * * * *
Killer whale (Orcinus orca), Southern Resident population (DPS),
which consists of whales from J, K and L pods.
* * * * *
[FR Doc. 04-27929 Filed 12-21-04; 8:45 am]
BILLING CODE 3510-22-S