[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Proposed Rules]
[Pages 3483-3485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1650]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 030114011-3011-01, I.D. 122702A]


Petition To Designate Alaska Transient Killer Whales as Depleted; 
Finding

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

ACTION: Notice of finding; request for information.

-----------------------------------------------------------------------

SUMMARY: NMFS received a petition to designate a group of transient 
killer whales as depleted under the Marine Mammal Protection Act 
(MMPA). This group of killer whales, identified as the AT1 group, 
inhabits Prince William Sound/Kenai Fjords, AK. NMFS finds that the 
petition presents substantial information indicating that the 
petitioned action may be warranted and will initiate a status review 
promptly. NMFS solicits information and comments from the public that 
may contribute to the status review.

DATES: Information and comments on the action must be received by March 
10, 2003.

ADDRESSES: A copy of the petition may be requested from, and 
information and comments on this action should be submitted to, 
Assistant Administrator for Protected Resources, NMFS, 709 W. 9th St, 
Juneau, AK 99802-1668. Comments will not be accepted if submitted via 
email or the Internet; however, comments may be sent via fax to (907) 
586-7012.

FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS, Alaska Region (907) 
586-7235 or Tom Eagle, NMFS, Office of Protected Resources, (301) 713-
2322 ext. 105.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Reference materials regarding this rule, including the petition, 
its attachments, and marine mammal stock assessment reports, may be 
obtained from the Internet at http://www.fakr.noaa.gov.

Background

    A stock is depleted under the MMPA when its abundance is below 
optimum sustainable population (OSP) levels. OSP is the population size 
that falls within a range from the population level of a given species 
or stock which is the

[[Page 3484]]

largest supportable within the ecosystem (carrying capacity or K) to 
the population level that results in the maximum net productivity level 
(MNPL). MNPL is the greatest net annual increment in population numbers 
resulting from additions to the population due to reproduction less 
losses due to natural mortality. Historically, MNPL has been expressed 
as a range of values (between 50 and 70 percent of the carrying 
capacity (K)) determined theoretically by estimating what stock size, 
in relation to the original stock size, will produce the maximum net 
increase in population (42 FR 12010, March 1, 1977). NMFS has used the 
mid-point of this range (i.e. 60 percent of K) to determine whether a 
stock is depleted (42 FR 64548, December 27, 1977; 45 FR 72178, October 
31, 1980).
    On November 13, 2002, NMFS received a petition from the Alaska 
Center for the Environment, Alaska Community Action on Toxics, Center 
for Biological Diversity, Coastal Coalition, Defenders of Wildlife, the 
Eyak Preservation Council, and the National Wildlife Federation, to 
designate the AT1 group of transient killer whales (Orcinus orca) as a 
depleted stock under the MMPA. The petitioners note that the AT1 group 
of killer whales is currently considered part of the eastern North 
Pacific transient killer whale stock. However, they present information 
to support their assertion that the AT1 group is a separate stock. The 
petitioners also present information to support their assertion that 
this group of killer whales is depleted. Copies of the petition are 
available from NMFS (see ADDRESSES and Electronic Access).
    Pursuant to Section 115(a)(3)(A) of the MMPA, NMFS published a 
notice in the Federal Register that the petition had been received and 
was available for public review (67 FR 70407, November 22, 2002). In 
response to its announcement that the petition had been received, NMFS 
received numerous comments from the public. These comments urge NMFS to 
designate AT1 killer whales as a depleted stock. None of the comments, 
however, contained substantive information in addition to the 
information contained in the petition. Therefore, responses to the 
comments are not necessary.
    Section 115(a)(3)(B) of the MMPA requires NMFS to publish a notice 
in the Federal Register as to whether the petition presents substantial 
information indicating that the petitioned action may be warranted. 
After reviewing information presented in the petition, which is 
summarized in the next section of this notice, NMFS finds that the 
petitioners present substantial information indicating that the 
petitioned action may be warranted.
    As required by the MMPA, NMFS will promptly begin a status review 
of AT1 killer whales. NMFS must publish a proposed rule as to the 
status of the stock no later than 210 days after receipt of the 
petition. The status review will address whether the AT1 group is a 
separate stock under the MMPA and whether this potential stock is 
depleted.

The Petition

    The petition presents information on the classification of killer 
whales in general and of the AT1 killer whales in particular. The 
petition also presents information on the changes in the size of the 
group over the last 20 years and identifies potential causes of decline 
in numbers of these animals.
    Killer whales of the North Pacific are generally classified by 
type: resident, transient, or offshore. Little information is available 
on the offshore animals due to the difficulty of studying these whales. 
Resident killer whales are well studied, as are some groups of 
transients.
    The main distinguishing feature between the residents and 
transients is their mutually exclusive prey base, with residents eating 
fish and transients consuming marine mammals. These two types of killer 
whales may be found in overlapping geographic ranges; however, they do 
not interact. The primary social structure of both groups is the 
matriline, dominated by a matriarchal female, her offspring, and direct 
descendants.
    Permanently associating matrilines are generally termed pods. 
Animals remain within the pod for life, and breeding apparently takes 
place between whales from different pods. Pods of whales can be 
distinguished genetically, by within-group associations and based on 
acoustic patterns. Although transient whales tend to form looser 
associations than residents (and as such the ``pod'' terminology is not 
applied to transients), they can nevertheless be distinguished based on 
similar genetic and demographic factors.
    AT1 killer whales are transients. In NMFS' marine mammal stock 
assessment reports, AT1 killer whales are currently included with two 
other groups of transient killer whales in the eastern North Pacific 
stock (Angliss et al. 2001). The eastern North Pacific stock of 
transient killer whales is comprised of the west coast transients found 
from northern Southeast Alaska to central California; the Gulf of 
Alaska transients; and the AT1 transients.
    Although the range of these transient groups overlap, they do not 
associate. The Gulf of Alaska and AT1 whales inhabit the waters of 
Alaska exclusively. The Gulf of Alaska transients are occasionally 
found in Prince William Sound, whereas the AT1 group inhabits the 
waters of Prince William Sound and the Kenai Fjords and has not been 
observed elsewhere.

AT1 Killer Whales as a Separate Stock

    The petitioners suggested that the AT1 group of killer whales was a 
separate stock based upon genetic and behavioral information and argued 
that the AT1 group should be managed separately. Petitioners provided 
detailed discussion of information supporting the identification of AT1 
killer whales as a separate stock in a letter to NMFS dated July 18, 
2002, which was a comment on NMFS' draft 2002 marine mammal stock 
assessment reports. That letter was incorporated by reference into the 
petition.
    The petitioners suggested that evidence from analyses of 
mitochondrial DNA indicated that females do not emigrate from or 
immigrate to the AT1 group. The petitioners also suggested that nuclear 
DNA from analyses of microsatellites indicated a lack of male or female 
mediated gene flow between the AT1 group and other groups of killer 
whales.
    The petitioners stated that AT1 transients have never been seen 
with other transient killer whales. The AT1 group has been sighted only 
in the waters of Prince William Sound and the Kenai Fjords, and other 
transient killer whales occupy these areas only occasionally. The 
petitioners also noted that AT1 transients are most frequently seen 
foraging near shore, and other transient killer whales are less 
frequently seen near shore.
    Further, petitioners noted that the AT1 group is readily 
distinguishable from other transient killer whales in the Gulf of 
Alaska in hunting and communication patterns. Whereas other transient 
killer whales prey extensively upon Steller sea lions, AT1 transients 
prey primarily on harbor seals and Dall's porpoise. The petitioners 
concluded that these genetic and behavioral differences are sufficient 
evidence upon which to identify the AT1 group as a separate population 
stock. The petitioners also noted that the Alaska Scientific Review 
Group, an independent advisory group established according to section 
117 of the MMPA, has recommended that NMFS recognize the AT1 group as a 
separate stock.

[[Page 3485]]

AT1 Group as Depleted

    Information on AT1 population size included in the petition shows 
that this group of whales numbered 22 animals in 1984, with the last 
calf being born in that year. The group now numbers 9 animals; less 
than half the size of the population prior to the Exxon Valdez oil 
spill in 1989. Two adult males in the group have been confirmed dead in 
the last 2 years. The current composition includes only 4 females, 2 of 
which are reproductively senescent.
    Using the definition of depleted described above (see Background) 
and assuming a conservative estimate of K at the historical abundance 
level of 22 animals, the petitioners suggested that the current 
abundance of 9 animals is below OSP (i.e, less than 60 percent of the 
historical abundance, which is 13 animals) and, therefore, that the AT1 
group of killer whales is depleted.
    The petitioners present several factors that they consider may be 
causes of the decline of the AT1 group: the Exxon Valdez oil spill; 
chemical contaminants; increased vessel traffic; and reduction in 
available prey species. Crude oil exposure could be a factor in the 
decline of AT1 whales as they were seen immediately after the 1989 
Exxon Valdez spill swimming in the crude oil around the tanker. 
Chemical contamination may also play a role in their decline. Analysis 
of blubber samples from the male AT1 group member that died in 2000 
showed very high levels of contaminants. The AT1 group may also be 
exposed to increasing underwater vessel noise as the number of vessels 
with access to Prince William Sound increases due to the recent road 
access to Whittier. Finally, the harbor seal population in Prince 
William Sound, one of the main prey items of the AT1 group, has 
declined substantially in the past, and recently harbor seal numbers 
have continued declining at about eight percent per year.

Status Review

    As the initial task under the upcoming status review, NMFS must 
evaluate the information in the petition and other information related 
to whether or not AT1 killer whales are a separate population stock. If 
NMFS determines that the AT1 group is a separate stock, NMFS would then 
evaluate whether it is depleted under the MMPA. NMFS is aware of the 
information related to abundances in 1984 and the present and is not 
aware of additional information related to historical or current 
abundance. NMFS notes that the Marine Mammal Commission has advised 
that the AT1 group should be recognized as a separate population stock 
and that it is below its MNPL.

Information Solicited

    NMFS solicits comments and information related to this petition and 
the status of AT1 killer whales. NMFS is specifically interested in 
comments and additional information related to (1) the identification 
of AT1 killer whales as a population stock, (2) the historical or 
current abundance of this group, (3) factors that may be affecting the 
group, and (4) conservation measures that may promote their recovery.

    Authority: Authority: 16 U.S.C. 1361 et seq.

    Dated: January 17, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 03-1650 Filed 1-23-03; 8:45 am]
BILLING CODE 3510-22-S