[Federal Register Volume 68, Number 103 (Thursday, May 29, 2003)]
[Rules and Regulations]
[Pages 31980-31983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13421]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 020603140-3129-03, 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: Final rule.

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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, is depleted as defined in the Marine Mammal 
Protection Act (MMPA). This action is a step in the process to address 
the decline in the number of Southern Resident killer whales. NMFS also 
announces the preparation of a Conservation Plan to reverse the decline 
and to promote recovery of the stock to OSP.

DATES: Effective June 30, 2003.

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/proposal.htm.

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.
    On May 2, 2001, NMFS received a petition from the Center for 
Biological Diversity and 11 co-petitioners to list Southern Resident 
killer whales under the Endangered Species Act (ESA). After conducting 
a status review to consider the information in the petition and other 
information related to the status of Southern Resident killer whales, 
NMFS determined that listing these killer whales as a threatened or 
endangered species was not warranted at this time because Southern 
Resident killer whales did not constitute a species as defined by the 
ESA. Scientific information evaluated during the status review, 
however, indicated that the population stock may be depleted under the 
MMPA.
    As required by the MMPA, NMFS initiated consultation with the 
Marine Mammal Commission (Commission) in a letter dated June 25, 2002, 
and began the process for determining if the stock was depleted. The 
Commission responded to NMFS in a letter dated November 18, 2002, with

[[Page 31981]]

 recommendations to: (1) prepare research plans for killer whales in 
the North Pacific, particularly to collect specific information needed 
to re-evaluate the status of Southern Resident killer whales within 
four years; (2) to proceed with the depletion determination; and (3) to 
identify and implement needed actions to protect important habitat as a 
conservation plan is developed for the Southern Resident killer whale 
stock. In a subsequent letter, dated March 31, 2003, the Commission: 
(1) reiterated its recommendation to designate the stock as depleted; 
(2) recommended that NMFS should thoroughly review information related 
to historical abundance and other information to establish recovery 
goals during conservation planning; and (3) recommended that NMFS 
prepare a conservation plan as soon as possible and, in the interim, 
initiate any conservation measures identified to date.
    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. 
Specifically, the ANPR 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. After considering comments received in response to the ANPR and 
the recommendations of the Commission, NMFS published a proposed rule 
to designate the Southern Resident stock as depleted (68 FR 4747, 
January 30, 2003) and solicited comments on the proposal and on 
potential conservation measures that may benefit these whales. The 60-
day comment period on the proposed rule closed on March 31, 2003. A 
summary of the public comments received and the agency's responses is 
presented below.

Comments and Responses

    NMFS received 38 comments in response to the proposed rule. Eleven 
of these comments voiced opinion on the status of Southern Resident 
killer whales relative to the Endangered Species Act. Summaries and 
responses are provided below for those substantive comments that 
address the proposed depleted designation or the potential conservation 
measures for the benefit of Southern Resident killer whales under the 
MMPA.
    Comment 1: Twenty-four commenters either supported NMFS' proposal 
to designate the Southern Resident stock of killer whales as depleted 
or agreed that the stock meets the statutory definition of depleted.
    Response: The agency agrees with the comments.
    Comment 2: One commenter questioned how NMFS could establish an OSP 
level for Southern Resident killer whales when both ``resident'' and 
``non-resident'' types use the same areas.
    Response: By definition, the upper and lower bounds of OSP are 
estimated for discrete stocks of marine mammals. NMFS recognizes 
Southern Resident killer whales as a separate stock of killer whales 
under the MMPA based upon genetic, behavioral, and ecological 
information. Therefore, NMFS must evaluate the status of Southern 
Resident killer whales relative to its OSP even though other stocks of 
killer whales are sometimes found in Puget Sound. Because researchers 
can distinguish between Southern Residents and other types of killer 
whales and there are ecological differences between residents and non-
residents, the periodic overlap of Southern Resident and other killer 
whales within Puget Sound does not confound the estimation of the OSP 
levels for Southern Resident killer whales.
    Comment 3: Twenty-one commenters included thoughts on factors that 
may be contributing to population decline. Pollution and related 
effects dominated the majority of comments on factors for decline and 
suggested subjects for the development of conservation measures, but a 
number of other potential stresses to the population were also 
identified. The summary of issues related to pollution includes: bio-
accumulation of persistent chemical contaminants and heavy metals; non-
point source contamination from commercial and residential development 
affecting salmon runs and bait fish survival; over use of pesticides, 
fertilizer, creosoted pilings and railroad ties, chemical cleaners and 
auto care products; agricultural run-off and pet waste; depleted 
uranium dumping; and oil spills and petroleum/fossil fuel discharges or 
exhaust. Among the remaining issues identified as possibly contributing 
to the decline of killer whales are: infectious diseases; over fishing 
on orca prey species or smaller forage fishes; shoreline modifications 
that reduce fish habitat; dams that block salmon passage or contribute 
to salmon mortality; noise and stress associated with shipping and 
vessel activities including commercial traffic, military operations and 
whale watching; indiscriminate release of real time killer whale 
sighting information for use by boaters; and the expansion of 
commercial fall/winter whale watching into central and southern Puget 
Sound. A number of ideas for addressing these concerns, including 
regulatory and non-regulatory approaches, were also received.
    Response: With this notice, NMFS is announcing its intent to 
prepare a Conservation Plan to assist in restoring the Southern 
Resident stock. The comments received in response to the proposal will 
help NMFS to define the scope of the planning effort to build a 
comprehensive recovery strategy. NMFS will seek continued stakeholder 
support and co-manager participation as it develops the content for the 
conservation plan.
    Comment 4: Six commenters supported research efforts to close gaps 
in the available information about the Southern Resident population and 
their habitat. Areas for research include questions regarding: killer 
whale taxonomy; the effects of disease; the effects of anthropogenic 
underwater noise associated with vessel traffic or naval sonar 
activities; historic versus current contaminant load in killer whale 
tissues; killer whale feeding ecology and prey abundance/distribution; 
year round orca range determination; and shoreline resources and 
nearshore habitats that are vulnerable to oil spills and may be 
degraded thereby contributing to reduced productivity for forage 
species.
    Response: In spite of the volume of scientific information 
available on the Southern Resident stock, NMFS acknowledges that 
significant data gaps still exist in a number of areas. Little is known 
of the diseases affecting this population. Research into the effects of 
sound in the marine environment, including sonar, on whales and other 
marine mammals is ongoing but incomplete. Research is necessary to fill 
the gaps and improve our understanding of this population and the 
factors that may affect its recovery. Accordingly, NMFS has developed 
an initial list of research priorities and has begun several studies to 
answer some of the outstanding questions. It is anticipated that 
additional research needs will be identified during the development of 
conservation measures associated with the preparation of the 
Conservation Plan.

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

[[Page 31982]]

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.
    All extant forms of killer whales are currently classified as the 
same biological species, O. orca. Three forms, Resident, Transient and 
Offshore, have been identified along the west coast of North American 
and vary in morphology, ecology, behavior, group size, social 
organization, acoustic repertoire, and genetic characteristics. A 
summary of information on the different forms was presented in the 
proposed rule (68 FR 4747, January 30, 2003).
    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 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.

Determination as Depleted Under the MMPA

    While there are no empirical estimates of the historical stock size 
for Southern Resident killer whales, 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 1960s and 
early 1970s (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, is likely to 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 Krahn, 
M.M., et al. 2002). Therefore, the best available scientific 
information suggests that the minimum estimate of historical abundance 
is approximately 140 whales, and the genetic evidence suggests it may 
have been about 200 whales. However, the actual historical abundance 
may have been higher than these two estimates.
    The abundance of the Southern Resident stock has declined by 
approximately 20 percent over the past 6 years (1996-2002)(Krahn, M.M., 
et al. 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 
taking this risk averse approach in light of recent declines. 
Therefore, based on the best scientific information available and 
consultation with the Commission, NMFS determines that the Southern 
Resident stock of killer whales is depleted under the MMPA.

Conservation Plan

    Section 115(b) of the MMPA (16 U.S.C. 1383b(b)(1)(C)) provides that 
a Conservation Plan shall be prepared as soon as possible, following a 
depleted designation, unless it is determined that such a plan will not 
promote the conservation of the species or stock. NMFS, after 
consultation with the Marine Mammal Commission, has determined that a 
Conservation Plan will assist in the conservation of the stock and is 
expediting the preparation of such a plan concurrent with the 
publication of this action.
    NMFS, as part of the proposed rule, requested public comment on: 
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; and 
potential conservation measures that may be useful in alleviating those 
impacts. Information was also solicited on the potential economic 
impacts and the potential biological benefits of alternative 
conservation measures. NMFS will use the information collected in 
response to the proposed rule for the development of conservation 
measures and in the preparation of the Conservation Plan. To promote 
and implement an open public dialogue concerning stock conservation and 
rebuilding measures, NMFS will hold public meetings beginning in May to 
obtain the views of stakeholders, scientists, advocacy groups, and the 
general public to aid in identifying the elements of a successful 
Conservation Plan. NMFS will advise the public on the progress of and 
opportunities to participate in the conservation planning process.

References

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

Classification

    This final 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 
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 Assistant General counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule will not have a 
significant economic impact on a substantial number of small entities. 
No comments were received regarding this certification. As a result, no 
regulatory flexibility analysis was prepared.
    This 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 E.O. 13132.

List of Subjects in 50 CFR Part 216

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


[[Page 31983]]


    Dated: May 20, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 216 is amended as 
follows:

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

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

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

0
2. In Sec.  216.15, a new paragraph (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. 03-13421 Filed 5-28-03; 8:45 am]
BILLING CODE 3510-22-S