[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31321-31324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12597]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 031003245-4160-02; I.D. 122702A]
RIN 0648-AR14


Designation of the AT1 Group of Transient Killer Whales as a 
Depleted Stock Under the Marine Mammal Protection Act (MMPA)

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

ACTION:  Final rule.

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SUMMARY:  NMFS issues a final rule to designate the AT1 group of 
transient killer whales as a depleted stock of marine mammals pursuant 
to the MMPA. This action is based upon a status review conducted by 
NMFS in response to a petition to designate as depleted a group of 
transient killer whales in Alaska (known as the AT1 group). The 
biological evidence indicates that the group is a population stock and 
that the stock is depleted as these terms are defined in the MMPA. This 
action is intended to promote the goals and objectives of MMPA.

DATES:  Effective July 6, 2004.

FOR FURTHER INFORMATION CONTACT:  Kaja Brix NOAA/NMFS, Alaska Region, 
(907) 586-7235; or email at [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    Information related to the petition and the status of the AT1 group 
of killer whales is available on the Internet at the following address: 
http://www.fakr.noaa.gov/protectedresources/whales/default.htm.
    NMFS guidelines for preparing stock assessment reports, which 
contain guidance for identifying population stocks of marine mammals, 
may be found on the Internet at the following address: http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.

Background

    NMFS received a petition on November 13, 2002, from the National 
Wildlife Federation, on behalf of itself, Alaska Center for the 
Environment, Alaska Community Action on Toxics, Center for Biological 
Diversity, Coastal Coalition, Defenders of Wildlife, and Eyak 
Preservation Council, to designate the AT1 group of transient killer 
whales as a depleted population stock under the MMPA. NMFS published a 
notice that the petition was available (67 FR 70407, November 22, 
2002). After evaluating the petition, NMFS determined that the petition 
contained substantial information indicating that the petitioned action 
may be warranted (68 FR 3483, January 24, 2003). Following its 
determination that the petitioned action may be warranted, NMFS 
conducted a status review to evaluate whether the AT1 group is a 
population stock and, if so, whether that stock is depleted. (The 
report of the status review is available in electronic form; see 
``Electronic Access''.) The status review concluded, based on the best 
scientific information available, that the AT1 group is a separate 
stock of killer whales. The status review also concluded, based on the 
best scientific information available, that the AT1 stock is depleted, 
as defined under the MMPA. Based on the status review, a proposed rule 
to designate the AT1 group of transient killer whales as a depleted 
stock under the MMPA was published in the Federal Register on October 
24, 2003 (68 FR 60899), with a 60-day public comment period ending 
January 22, 2004.

[[Page 31322]]

    This final rule designates the AT1 group of transient killer whales 
as a depleted stock under the Marine Mammal Protection Act. No 
additional regulations are associated with this designation.

Comments and Responses

    NMFS received 74 letters on the proposed rule containing 12 
distinct categories of comments. A summary of these comments and NMFS' 
responses are included below.
    Comment 1: The full range of scientifically plausible explanations 
for the AT1 pod's identity, stock status, and relationship to the ever-
changing environment of Prince William Sound has not been considered in 
this determination.
    Response: NMFS described a wide range of alternatives for the AT1 
group's origin in the report of the status review; these alternatives 
were summarized in the preamble of the proposed rule along with a 
request for additional information related to AT1 killer whales. No new 
alternatives were identified in comments on the proposed rule.
    The full range of options for the status of the stock pursuant to 
the petition is satisfied by considering whether the stock is depleted. 
NMFS described sufficient evidence in the report of the status review 
and in the preambles to the proposed rule and this final rule (see 
discussion under the heading ``The Depleted Determination'') that the 
status of the stock is ``depleted''.
    The relationship between AT1 killer whales and their environment is 
not entirely known. NMFS made its determination based upon the standard 
required by the MMPA, which is best scientific information available.
    Comment 2: There is no evidence that the group has ever reproduced 
and no documented trends of abundance. The proposed determination had 
very little discussion on environmental variation and possible effects 
on AT1.
    Response: The report of the status review noted that when the AT1 
group was first identified in 1984, there were juvenile animals in the 
group. These juveniles are the best available evidence that the killer 
whales in this population stock have reproduced.
    The group contained 22 whales in 1984, 11 whales after 1989, and 
now has 9 or fewer whales. These numbers demonstrate a decline in the 
abundance from 1984 to present (also see response to comment 3).
    The status review and the proposed rule to designate the AT1 group 
as a depleted stock state that no information is available on 
historical abundance of the Eastern North Pacific transient stock of 
killer whales or Alaska transients to provide abundance trends, but 
that there has been documented a decline in the AT1 group of killer 
whales since 1984. Environmental variability and its effects on AT1 
killer whales are not documented; therefore, they were not discussed in 
the proposed rule.
    Comment 3: There has been an apparent decline in the population 
since the Exxon Valdez oil spill. Was this documented by a census or an 
estimate?
    Response: The decline was documented by a series of censuses.
    Comment 4: Seasonal observations on interactions between killer 
whale groups are relatively subjective when examining interactions 
between killer whale groups. Using genetic information to calculate 
``migrant/generation'' would be more useful and scientifically 
defensible.
    Response: Although most observations of AT1 killer whales have been 
made in summer months, association patterns in other killer whale 
populations seen more frequently year-round have not shown any changes 
in association patterns through the year. Therefore, no evidence exists 
that suggests that summer association patterns cannot be used as 
evidence for population structure. Mitochondrial DNA analysis and two 
forms of microsatellite DNA analysis were conducted, and all 3 analyses 
supported the hypothesis that the AT1 group represents a separate 
population. Although calculating the number of migrants per generation 
may be useful for some purposes (such as an analysis of whether a 
putative population could sustain a certain level of bycatch because 
immigration from another population was sufficient to replace the 
animals removed), such an analysis was not necessary for this final 
rule.
    Comment 5: The stated ``K'' values were set in 1984. There has been 
no re-evaluation that takes into account the profoundly changing 
habitat in Prince William Sound over the last 20 years. The ``K'' value 
could be highly variable in a rapidly changing environment.
    Response: NMFS has not established a numerical value for carrying 
capacity (K) for AT1 killer whales. The 1984 abundance is used to 
demonstrate that the population is currently less than 60 percent of 
its abundance in the recent past and that the population stock is, 
therefore, depleted. The actual values for K and Maximum Net 
Productivity Level (MNPL) are currently unknown and will be addressed 
in the conservation plan prepared for this stock.
    Comment 6: Based on the evidence presented in the petition to list 
this group as a stock and designate it as depleted and on further 
information in the proposed rule, the AT1 whales qualify under the MMPA 
and NMFS' implementing regulations as a depleted stock.
    Response: NMFS concurs and is designating the group as a depleted 
stock of marine mammals.
    Comment 7: The depleted designation should lead to the development 
of more detailed information on the threats facing this population and 
appropriate actions to respond to these threats.
    Response: These issues will be considered in the development of the 
conservation plan for this stock.
    Comment 8: Because the AT1 population is in danger of extinction 
throughout a significant part - possibly all - of its range and is 
likely to become extinct within the foreseeable future, the proper 
application of the scientific data shows that NMFS must list the stock 
as endangered under the Endangered Species Act (ESA).
    Response: This final rule is the result of a process initiated by 
the receipt of a petition submitted to NMFS requesting that the AT1 
group be designated as a depleted stock under the MMPA. An evaluation 
of the status of AT1 killer whales under the ESA would include an 
analysis to determine whether the stock is a distinct population 
segment and, if so, whether the group is in danger of going extinct 
throughout all or a significant portion of its range. Such an 
evaluation was beyond the scope of the petition NMFS received.
    Comment 9: NMFS should develop a long-term research plan for North 
Pacific killer whales.
    Response: Comprehensive research needed to assist in the recovery 
of the AT1 killer whales will be identified in a conservation plan. In 
a broader perspective, NMFS currently conducts research on killer whale 
demographics in the North Pacific through research at the National 
Marine Mammal Laboratory and through grants provided to independent 
researchers. NMFS will consider approaches to incorporate current 
efforts and planning into a coordinated long-term research plan for 
North Pacific killer whales.
    Comment 10: NMFS has stated that a catastrophic oil spill is the 
single greatest threat to the stock. The AT1 group has already 
undergone this event. Given the data available, it is clear fifteen 
years after the oil spill that no designation or conservation plan 
could achieve recovery.

[[Page 31323]]

    Response: The designation of this group of killer whales as a 
depleted stock is separate from the development of conservation 
measures to promote the population's recovery, and the designation is 
based upon the stock's abundance compared to its OSP. The potential 
effectiveness of the conservation plan is not a criterion for 
consideration in designating a stock as depleted. Regulatory measures 
identified in a conservation plan to conserve and restore the stock 
would require separate regulatory action, and appropriate economic 
analyses would be conducted during such rulemaking. Public comments on 
those proposed actions would be part of the rulemaking process.
    Comment 11: A conservation plan may offer no prospects for recovery 
yet may potentially jeopardize the lives and livelihoods of those who 
depend on the resources of Prince William Sound, including a fishery 
that has no documented history of interactions with the AT1 group.
    Response: Conservation measures not likely to promote recovery of 
the stock would not be included in a conservation plan. In addition, 
see response to Comment 10.
    Comment 12: The relationship between vessel noise and highly mobile 
and opportunistic predators, such as the AT1 group of killer whales, is 
speculative at this time. Reduction of vessel noise as a conservation 
tool should be supported by peer-reviewed science prior to being 
implemented.
    Response: In the conservation plan, NMFS will analyze available 
scientific information in determining whether conservation measures 
regarding vessel noise are necessary to conserve and restore the stock. 
Any necessary regulatory measures to conserve and restore the stock 
would require separate regulatory action with information to support 
it. (see also response to comment 10).

Changes From the Proposed Rule

    The final rule contains no changes from the proposed rule.

The Depleted Determination

    Because the AT1 group was part of the Eastern North Pacific 
transient stock of killer whales prior to this action, the 
determination required two steps. First, available evidence was 
evaluated to determine whether the group is a population stock under 
the MMPA. If so, the second step was to determine whether the abundance 
of the newly identified population stock is below its optimum 
sustainable population (OSP) and, therefore, depleted.

The AT1 Group as a Stock

    NMFS' guidelines for assessing marine mammal stocks (See Electronic 
Access) include guidelines for identifying population stocks of marine 
mammals which state that many different types of information can be 
used to identify stocks, reproductive isolation is proof of demographic 
isolation, and demographically isolated groups of marine mammals should 
be identified as separate stocks. These guidelines were based upon the 
MMPA's definition of population stock and the purposes and polices of 
the MMPA. The biological information discussed in the report of the 
status review and in the preamble of the proposed rule, particularly 
molecular genetics and associations (distribution and movements), 
supports a determination that AT1 killer whales are demographically 
isolated from other groups of killer whales. Therefore, based upon the 
best scientific information available, NMFS has determined that the AT1 
group of transient killer whales is a population stock.

Status of the Stock

    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.'' 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 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 (K) to 
MNPL. MNPL is population size expected to produce 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, 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 purse seine fishing for yellowfin tuna 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 available estimate of a 
stock's maximum historical abundance as a proxy for K.
    As required by the MMPA, NMFS initiated consultation with the 
Marine Mammal Commission related to the petition to designate the AT1 
group of killer whales as a depleted population stock. In a letter 
dated December 23, 2002, the Commission noted that there were 
uncertainties regarding the relationships of the AT1 group to other 
killer whales in the North Pacific. The Commission recommended as a 
precautionary approach that, until these uncertainties are resolved, 
NMFS should designate the AT1 group of transient killer whales as a 
depleted stock.
    There is no information on population trends or historical 
abundance of the Eastern North Pacific transient stock of killer 
whales, of which the AT1 group was a part prior to this final rule. 
Similarly there is insufficient historical data on Alaska transients to 
provide information on trends in abundance in Alaska. The AT1 group is 
the only stock of transient whales whose recent history is known.
    The available information, which was described in detail in the 
report of the status review and summarized in the preamble to the 
proposed rule, supports the conclusion that the AT1 group is a 
population stock of marine mammals. The genetics data suggest that the 
stock size was larger than 22 animals prior to 1984. However, its 
abundance prior to 1984 is unknown. Consequently, there is no estimate 
for the maximum historical abundance. In 1984, the stock had 22 
members, and its current abundance has been reduced to nine or fewer 
whales. The current abundance is less than 60 percent of the known 
abundance in 1984; therefore, the stock is below its MNPL (the lower 
limit of its OSP). Consequently, the stock meets the statutory 
definition of depleted. Based on the best scientific information 
available, NMFS is designating the AT1 group of transient killer whales 
in Alaska as a depleted population stock under the MMPA.

[[Page 31324]]

References

    References are available upon request (See FOR FURTHER INFORMATION 
CONTACT).

Classification

    This final rule is exempt from listing 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.
    At the proposed rule stage, the Chief Counsel for Regulation, 
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 or the economic 
impact of the rule. As a result, no regulatory flexibility analysis is 
required, and none has been prepared.
    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980. This 
final 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: May 28, 2004.
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

0
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 (i) is added to read as follows:


Sec.   216.15 Depleted species.

* * * * *
    (i) AT1 stock of killer whales (Orcinus orca). The stock includes 
all killer whales belonging to the AT1 group of transient killer whales 
occurring primarily in waters of Prince William Sound, Resurrection 
Bay, and the Kenai Fjords region of Alaska.
[FR Doc. 04-12597 Filed 6-2-04; 8:45 am]
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