[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]


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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.

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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