[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Proposed Rules]
[Pages 4747-4750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2031]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 020603140-3010-02 , 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: Proposed rule; request for comments.

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SUMMARY: Following a review of the status of the eastern North Pacific 
Southern Resident stock of killer whales (Orcinus orca), NMFS has 
determined that the stock is below its Optimal Sustainable Population 
(OSP) and, therefore, proposes to designate the Southern Resident stock 
of killer whales as depleted under the Marine Mammal Protection Act 
(MMPA). NMFS requests that interested parties submit comments on this 
proposal and on potential conservation measures that may benefit these 
whales.

DATES: Information and comments must be received by March 31, 2003.

ADDRESSES: Information and comments should be submitted to Chief, 
Protected Resources Division, NMFS, 525 NE Oregon Street, Suite 500, 
Portland, OR 97232. Alternatively, comments may also be submitted via 
the Internet (see Electronic Access) or by facsimile (fax) to (503) 
230-5435.

FOR FURTHER INFORMATION CONTACT: Mr. Garth Griffin, Northwest Regional 
Office, NMFS, Portland, OR (503) 231-2005, or Dr. Thomas Eagle, Office 
of Protected Resources, NMFS, Silver Spring, MD (301) 713-2322, ext. 
105.

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/mmammals/whales/srkw.htm. 
Comments may be submitted at the Internet address above or at the 
following: http://www.nmfs.noaa.gov/ibrm.

Background

    Section 3(1)(A) of the MMPA (16 U.S.C. 1362(1)(A)) defines the 
term, ``depletion'' or ``depleted'', as any case in which ``the 
Secretary, after consultation with the Marine Mammal Commission and the 
Committee of Scientific Advisors on Marine Mammals ... determines that 
a species or population stock is below its optimum sustainable 
population [(OSP)].'' Section 3(9) of the MMPA defines OSP ''...with 
respect to any population stock, [as] the number of animals which will 
result in the maximum productivity of the population or the species, 
keeping in mind the carrying capacity [(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 which falls within a range from the population level of 
a given species or stock that is the largest supportable within the 
ecosystem (carrying capacity [K]) to the population level that results 
in the maximum net productivity level (MNPL). MNPL is the greatest net 
annual increment (increase) in population numbers resulting from 
additions due to reproduction less losses due to natural mortality.
    A population stock below its MNPL is, by definition, below OSP and, 
thus, would be considered depleted under the MMPA. Historically, the 
estimated MNPL has been expressed as a range of values, generally 50 to 
70 percent of K (42 FR 12010, March 1, 1977). In 1977, the midpoint of 
this range (60 percent of K) was used to determine whether dolphin 
stocks in the eastern tropical Pacific Ocean were depleted under the 
MMPA (42 FR 64548, December 27, 1977). The 60-percent-of-K value was 
used in the final rule governing the taking of marine mammals 
incidental to commercial 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, including killer whales, K is generally 
unknown. NMFS, therefore, has used the best estimate available of 
maximum historical abundance as a proxy for K.
    Pursuant to section 115 of the MMPA (16 U.S.C. 1383b), NMFS 
published an advance notice of proposed rulemaking (ANPR) (67 FR 44132, 
July 1, 2002) which included a request for scientific information. The 
notice requested information, comments, and supporting documents on 
stock status, areas of significance to the stock, and any factors that 
may be causing the decline or impeding the recovery of the stock. The 
60-day comment period on the ANPR closed on August 30, 2002. A summary 
of the public comments received and

[[Page 4748]]

the agency's responses is presented below.

Comments and Responses

    NMFS received 51 comments in response to the ANPR. The majority of 
the comments were form letters that did not provide substantive 
information, but voiced general support for the listing of Southern 
Resident killer whales under the Endangered Species Act. Summaries and 
responses are provided below only for those comments that address the 
ANPR or the status of Southern Resident killer whales under the MMPA.
    Comment 1: Fourteen commenters disagreed with NMFS' intent to make 
a depleted designation for Southern Resident killer whales, indicating 
that there is no advantage to designating the population as depleted 
since it would only make extinction more likely.
    Response: NMFS is concerned about the recent trends of the Southern 
Resident killer whale stock. The stock has exhibited considerable 
fluctuations in the 28 years it has been surveyed. More significantly, 
stock size has declined approximately 20 percent over the past six 
years (1996-2002). The best available scientific information indicates 
that the stock is below its OSP, and, accordingly, NMFS proposes to 
designate Southern Resident killer whales as depleted. Advantages of a 
depleted designation and protections under the MMPA are included in the 
response to comment 2.
    Comment 2: Nineteen commenters were neutral toward NMFS' intent to 
designate the Southern Resident stock as depleted and stated that the 
MMPA provides only weak or ineffective protection for killer whales.
    Response: NMFS disagrees with the assertion that the MMPA provides 
weak or ineffective conservation benefits to killer whales. The MMPA 
generally prohibits the taking of these marine mammals and generally 
requires the preparation of a conservation plan for depleted stocks as 
soon as possible. NMFS may generally prescribe such regulations as are 
necessary and appropriate to carry out the purposes of the MMPA. In 
addition, NMFS may develop conservation or management measures to 
alleviate impacts on marine mammal habitat that NMFS determines may be 
causing the decline or impeding the recovery of strategic stocks, the 
definition of which includes depleted stocks. Moreover, depleted stock 
designation under the MMPA is a useful tool to elevate public awareness 
of Southern Resident killer whale status and threats and to highlight 
conservation opportunities for Federal, state, tribal and local 
agencies.
    Comment 3: Three commenters supported NMFS' intent to designate the 
Southern Resident stock of killer whales as depleted and agreed that 
the available information indicates that the stock is below OSP.
    Response: The agency agrees with the comment.
    Comment 4: One commenter supported a depleted designation, but 
provided information suggesting that the MNPL for killer whales is 
higher than the 60-percent-of-K stated in the ANPR. The commenter 
suggested that the MNPL for Southern Resident killer whales is near 80 
percent of K.
    Response: The agency has insufficient information to determine 
reliably if the MNPL for Southern Resident killer whales is as high as 
80 percent of K. The current stock abundance is below the MNPL that can 
be estimated from the best available information and indicates that the 
stock is depleted.
    Comment 5: One commenter stated that the lower bound of the 
estimated historical abundance for this stock (140) is conservative and 
that the actual historical population size was likely to have been much 
higher.
    Response: The maximum historical abundance of Southern Resident 
killer whales likely exceeded 140 whales; however, there is 
insufficient information to estimate historical abundance directly. 
Based on the best available scientific evidence, from available census 
and whale-capture data, the estimate of 140 whales should be considered 
conservative, and, thus, it was used only to establish a lower bound of 
estimates for maximum historical abundance.
    Comment 6: One commenter stated that an accurate determination of 
the historical population size is needed before the population could be 
considered recovered.
    Response: Under the MMPA, NMFS must base its determinations on the 
best scientific information available. Consequently, the agency will 
use the best information available in establishing goals in planning 
for the recovery of Southern Resident killer whales. NMFS lacks 
sufficient information to support a direct estimate of historical 
abundance. However, NMFS has used the best indirect scientific 
information available to estimate historical abundance and will 
continue to update that information in making future determinations 
regarding this stock.
    Comment 7: One commenter encouraged NMFS to develop a conservation 
plan for the Southern Resident stock as soon as possible.
    Response: If the Southern Resident stock is designated as depleted 
the agency will immediately begin such planning. Section 115(b)(1) of 
the MMPA (16 U.S.C. 1383b(b)(1)) provides that a conservation plan 
shall be prepared as soon as possible unless NMFS determines that such 
a plan would not promote the recovery of the stock.

Determination of ``Population Stock'' or ``Stock''

    Section 3(11) of the MMPA defines a population stock or stock as a 
group of marine mammals of the same species or smaller taxa in a common 
spatial arrangement, that interbreed when mature. Although this 
definition is in part a legal concept, stocks, species, and populations 
are biological concepts that must be defined on the basis of the best 
scientific data available.
    The killer whale is the largest member of the dolphin family 
(Delphinidae), and the species is distributed throughout the world's 
oceans. 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, 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 groups rarely interact with the Resident pods (pods are 
close-knit family groups ranging from 10 to 70 whales). 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 feeding on fishes. Little is known about the feeding habits 
of the Offshore form.
    Specific stock definitions for west coast killer whales are 
provided in the U.S. Pacific Marine Mammal Stock Assessments (Carretta 
et al. 2001) and include consideration of data on association patterns, 
acoustics, movements, genetic differences and potential fishery 
interactions. Five killer whale stocks are recognized within the 
Pacific U.S. exclusive economic zone: 1) the eastern North Pacific 
Northern Resident stock; 2) the eastern North

[[Page 4749]]

Pacific Southern Resident stock; 3) the eastern North Pacific Transient 
stock; 4) the eastern North Pacific Offshore stock; and 5) the Hawaiian 
stock. 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.
    Southern Resident killer whales include members of 3 pods of killer 
whales (J, K, and L pods). These whales have been intensively studied, 
particularly by the Center for Whale Research, and all members of each 
pod have been identified. Ongoing research efforts include descriptions 
and photographs of new calves, and these animals are observed regularly 
as long as they remain in the population.

Determination as Depleted Under the MMPA

    There are no empirical estimates of the historical stock size for 
Southern Resident killer whales; however, NMFS examined indirect 
evidence to derive an estimate of historical abundance for the 
population. A minimum historical abundance of 140 whales was derived by 
combining the total abundance based upon the original 1974 census 
population (71) with the estimated number of animals that were removed 
or died (68) during live capture operations for display conducted in 
the 1960's and early 1970's (67 FR 44132, 44133, July 1, 2002). The 
number of animals that may have been killed by shooting or other human 
interactions is unknown but, based on anecdotal evidence, may have been 
greater than zero. Additionally, a comparison of genetic diversity with 
the larger Northern Resident killer whale stock (214 whales) indicates 
that the Southern Resident stock may have been of similar size in the 
recent past (Barrett-Lennard, L.G. and Ellis, G.M. 2001 and NMFS 2002). 
Therefore, the best available scientific information suggests a 
historical abundance of approximately 140 to 200 whales.
    The abundance of the Southern Resident stock has declined by 
approximately 20 percent over the past 6 years (1996-2002)(NMFS 2002). 
The true K and MNPL are unknown for Southern Resident killer whales. 
Using an estimated range of historical stock size of 140-200 whales as 
a proxy for K, the estimated MNPL for the Southern Resident stock would 
be 84-120 whales (i.e., 60 percent of 140-200). A more complete 
discussion of the estimated historical stock size can be found in the 
ANPR referenced above. The 2002 abundance of 80 Southern Resident 
killer whales (Center for Whale Research, 2002 Orca Survey) is below 
the lower bound of the estimated MNPL range (84) for the stock. The 
current population size meets the statutory definition of a depleted 
stock. NMFS recognizes that the current population size is very near 
the estimated lower bound of MNPL for this stock but is proposing this 
risk averse approach in light of the recent declining trend. 
Accordingly, NMFS has initiated consultation with the Marine Mammal 
Commission and has received initial support for the proposed action. 
Therefore, based on the best scientific information available, NMFS 
proposes to designate this stock as depleted under the MMPA.

Information Solicited

    NMFS is soliciting comments on the proposed designation of this 
stock as depleted under the MMPA and is particularly interested in the 
historical abundance of the eastern North Pacific Southern Resident 
stock. The agency is also interested in: areas of ecological 
significance (mating, rearing, resting, feeding) to the eastern North 
Pacific Southern Resident stock; impacts that may be causing the 
decline or impeding the recovery of the stock; potential conservation 
measures that may be useful in alleviating those impacts and rebuilding 
the stock; and the potential economic impacts and the potential 
biological benefits of alternative conservation measures. 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, their address, and any 
association, institution, or business that the person represents.

Public Meetings

    If Southern Resident killer whales are designated as depleted, NMFS 
will hold public meetings to define the scope and develop the content 
for a conservation plan. Dates, addresses, and times of the meetings 
would be announced in the preamble of the final rule.

References

    A complete list of all cited references is available via the 
Internet (see Electronic Access) or upon request (see ADDRESSES).

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866. Depletion designations under the 
MMPA are similar to ESA listing decisions, which are exempt from the 
requirement to prepare an environmental assessment or environmental 
impact statement under the National Environmental Policy Act. See NOAA 
Administrative Order 216-6.03(e)(1). Thus, NMFS has determined that the 
proposed depletion designation of this stock under the MMPA is exempt 
from the requirements of the National Environmental Policy Act of 1969, 
and an Environmental Assessment or Environmental Impact Statement is 
not required.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities 
as follows: ``The MMPA imposes a general moratorium on the taking of 
marine mammals. This proposed rule would designate the Eastern North 
Pacific Southern Resident stock of killer whales as depleted; however, 
this designation would not, by itself, place any additional 
restrictions on the public. Any subsequent restrictions placed on the 
public to protect these whales would be included in separate 
regulations, and appropriate analyses under the Regulatory Flexibility 
Act would be conducted during those rulemaking procedures.'' Hence, 
implementation of this proposed rule would not have a significant 
economic impact on a substantial number of small entities. As a result, 
no regulatory flexibility analysis for this rule has been prepared.
    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980. This 
rule does not contain policies with federalism implications sufficient 
to warrant preparation of a federalism assessment under Executive Order 
13132.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Exports, Imports, Marine 
mammals, Transportation.

    Dated: January 22, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 216 is 
proposed to be amended as follows:

PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:


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    Authority: 16 U.S.C. 1361 et seq. unless otherwise noted.

    2. In Sec.  216.15, a new paragraph (h) is added to read as 
follows:


Sec.  216.15  Depleted species.

* * * * *
    (h) Eastern North Pacific Southern Resident stock of killer whales 
(Orcinus orca). The stock includes all resident killer whales in pods 
J, K, and L in the waters of, but not limited to, the inland waterways 
of southern British Columbia and Washington, including the Georgia 
Strait, the Strait of Juan de Fuca, and Puget Sound.
[FR Doc. 03-2031 Filed 1-29-03; 8:45 am]
BILLING CODE 3510-22-S