[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Proposed Rules]
[Pages 70733-70736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28762]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 121025586-2603-01]
RIN 0648-XC326


Listing Endangered or Threatened Species: 90-Day Finding on a 
Petition To Delist the Southern Resident Killer Whale; Request for 
Information

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

ACTION: Notice of finding; request for information.

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

SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
90-day finding on a petition to delist the Southern Resident killer 
whale (Orcinus orca) Distinct Population Segment (DPS) under the 
Endangered Species Act (ESA). The Southern Resident killer whale DPS 
was listed as endangered under the ESA in 2005. We find that the 
petition viewed in the context of information readily available in our 
files presents substantial scientific information indicating the 
petitioned action may be warranted. We are hereby initiating a status 
review of Southern Resident killer whales to determine whether the 
petitioned action is warranted and to examine the application of the 
DPS policy. To ensure the status review is comprehensive, we are 
soliciting scientific and commercial information pertaining to this 
species.

DATES: Scientific and commercial information pertinent to the 
petitioned action and DPS review must be received by January 28, 2013.

ADDRESSES: You may submit information or data by any of the following 
methods. Electronic Submissions: Submit all electronic information via 
the Federal eRulemaking Portal http://www.regulations.gov. To submit 
information via the e-Rulemaking Portal, first click the ``submit a

[[Page 70734]]

comment'' icon, then enter ``NOAA-NMFS-'' in the keyword search. Locate 
the document you wish to provide information on from the resulting list 
and click on the ``Submit a Comment'' icon to the right of that line.
    Mail or hand-delivery: Protected Resources Division, NMFS, 
Northwest Region, Protected Resources Division, 7600 Sand Point Way NE. 
Attention--Donna Darm, Assistant Regional Administrator.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. We will accept anonymous 
comments (enter N/A in the required fields, if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS Northwest Region, 
(206) 526-4745; Marta Nammack, NMFS Office of Protected Resources, 
(301) 427-8469.

SUPPLEMENTARY INFORMATION:

ESA Statutory Provisions and Policy Considerations

    On August 2, 2012, we received a petition submitted by the Pacific 
Legal Foundation on behalf of the Center for Environmental Science 
Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to 
delist the endangered Southern Resident killer whale DPS under the ESA. 
Copies of the petition are available upon request (see ADDRESSES, 
above).
    In accordance with section 4(b)(3)(A) of the ESA, to the maximum 
extent practicable within 90 days of receipt of a petition to list or 
delist a species as threatened or endangered, the Secretary of Commerce 
is required to make a finding on whether that petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, and to promptly publish such 
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find 
that substantial scientific or commercial information in a petition 
indicates that the petitioned action may be warranted, as is the case 
here, we are required to promptly commence a review of the status of 
the species concerned, during which we will conduct a comprehensive 
review of the best available scientific and commercial information. In 
such cases, within 12 months of receipt of the petition we conclude the 
review with a determination that the petitioned action is not 
warranted, or a proposed determination that the action is warranted. 
Under specific facts, we may also issue a determination that the action 
is warranted but precluded. Because the finding at the 12-month stage 
is based on a comprehensive review of all best available information, 
as compared to the more limited scope of review at the 90-day stage, 
which focuses on information set forth in the petition and information 
readily available in our files, this 90-day finding does not prejudge 
the outcome of the status review.
    Under the ESA, the term ``species'' means a species, a subspecies, 
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-
USFWS policy clarifies the Services' interpretation of the phrase 
``Distinct Population Segment,'' or DPS (61 FR 4722; February 7, 1996). 
The DPS Policy requires the consideration of two elements when 
evaluating whether a vertebrate population segment qualifies as a DPS 
under the ESA: Discreteness of the population segment in relation to 
the remainder of the species, and, if discrete, the significance of the 
population segment to the species.
    A species is ``endangered'' if it is in danger of extinction 
throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether a species is threatened or endangered based on any 
one or a combination of the following section 4(a)(1) factors: (1) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    Under section 4(a)(1) of the ESA and the implementing regulations 
at 50 CFR 424.11(d), a species shall be removed from the list if the 
Secretary of Commerce determines, based on the best scientific and 
commercial data available after conducting a review of the species' 
status, that the species is no longer threatened or endangered because 
of one or a combination of the section 4(a)(1) factors. A species may 
be delisted only if such data substantiate that it is neither 
endangered nor threatened for one or more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the Services is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error (50 CFR 424.11(d)).
    ESA implementing regulations issued jointly by the Services (50 CFR 
424.14(b)) define ``substantial information,'' in the context of 
reviewing a petition to list, delist, or reclassify a species, as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition (1) clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action may be 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is or is

[[Page 70735]]

not either threatened or endangered to support a positive 90-day 
finding.
    To make a 90-day finding on a petition to list, delist, or 
reclassify a species, we evaluate whether the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles (such as citing published and peer reviewed articles and 
studies done in accordance with valid methodologies), unless we have 
specific information in our files that indicates that the petition's 
information is incorrect, unreliable, obsolete, or otherwise irrelevant 
to the requested action. Information that is susceptible to more than 
one interpretation or that is contradicted by other available 
information will not be disregarded at the 90-day finding stage, so 
long as it is reliable and provides basis for us to find that a 
reasonable person would conclude it supports the petitioners' 
assertions. In other words, conclusive information indicating that the 
species may meet the ESA's requirements for delisting is not required 
to make a positive 90-day finding.

Background

    After receiving a petition to list Southern Resident killer whales 
as threatened or endangered under the ESA in 2001 (CBD, 2001), we 
formed a Biological Review Team (BRT) to assist with a status review 
(NMFS, 2002). After conducting the status review, we determined that 
listing Southern Resident killer whales as a threatened or endangered 
species was not warranted because Southern Resident killer whales did 
not constitute a species as defined by the ESA (67 FR 44133; July 1, 
2002). Because of the uncertainties regarding killer whale taxonomy 
(i.e., whether killer whales globally should be considered as one 
species or as multiple species and/or subspecies), we announced we 
would reconsider the taxonomy of killer whales within 4 years. 
Following the determination, the Center for Biological Diversity, and 
other plaintiffs, challenged our ``not warranted'' finding under the 
ESA in U.S. District Court. The U.S. District Court for the Western 
District of Washington issued an order on December 17, 2003, which set 
aside our ``not warranted'' finding and remanded the matter to us for 
redetermination of whether the Southern Resident killer whales should 
be listed under the ESA (Center for Biological Diversity v. Lohn, 296 
F. Supp. 2d. 1223 (W.D. Wash. 2003)). The court found that where there 
is ``compelling evidence that the global Orcinus orca taxon is 
inaccurate,'' the agency may not rely on ``a lack of consensus in the 
field of taxonomy regarding the precise, formal taxonomic redefinition 
of killer whales.'' As a result of the court's order, we co-sponsored a 
Cetacean Taxonomy workshop in 2004, which included a special session on 
killer whales, and reconvened a BRT to prepare an updated status review 
document for Southern Resident killer whales (NMFS, 2004).
    The BRT agreed that the Southern Resident killer whale population 
likely belongs to an unnamed subspecies of resident killer whales in 
the North Pacific, which includes the Southern and Northern Residents, 
as well as the resident killer whales of Southeast Alaska, Prince 
William Sound, Kodiak Island, the Bering Sea and Russia (but not 
transients or offshores). The BRT concluded that the Southern Resident 
killer whale population is discrete and significant with respect to the 
North Pacific resident taxon and therefore should be considered a DPS. 
In addition, the BRT conducted a population viability analysis which 
modeled the probability of species extinction under a range of 
assumptions. Based on the findings of the status review and an 
evaluation of the factors affecting the DPS, we published a proposed 
rule to list Southern Resident killer whales as threatened on December 
22, 2004 (69 FR 76673). After considering public comments on the 
proposed rule and other available information, we reconsidered the 
status of the Southern Resident killer whale DPS and issued a final 
rule to list the Southern Resident killer whale DPS as endangered on 
November 18, 2005 (70 FR 69903).
    Following the listing, we designated critical habitat, completed a 
recovery plan, and conducted a 5-year review for Southern Resident 
killer whales. We issued a final rule designating critical habitat for 
the Southern Resident killer whales November 29, 2006 (71 FR 69055). 
The designation includes three specific areas: (1) the Summer Core Area 
in Haro Strait and waters around the San Juan Islands; (2) Puget Sound; 
and (3) the Strait of Juan de Fuca, which comprise approximately 2,560 
square miles (square km) of Puget Sound. The designation excludes areas 
with water less than 20 feet (m) deep relative to extreme high water. 
After engaging stakeholders and providing multiple drafts for public 
comment, we announced the Final Recovery Plan for Southern Resident 
killer whales on January 24, 2008 (73 FR 4176). We have continued 
working with partners to implement actions in the recovery plan. In 
March 2011, we completed a five-year review of the ESA status of 
Southern Residents killer whales concluding that no change was needed 
in their listing status, and that the Southern Resident killer whale 
DPS would remain listed as endangered (NMFS 2011).

Petition Finding

    On August 2, 2012, we received a petition submitted by the Pacific 
Legal Foundation on behalf of the Center for Environmental Science 
Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to 
delist the endangered Southern Resident killer whale DPS under the ESA. 
The petitioners contend that the killer whale DPS does not constitute a 
listable unit under the ESA because NMFS is without authority to list a 
DPS of a subspecies. The petitioners also contend that there is no 
scientific basis for the designation of the unnamed North Pacific 
Resident subspecies of which the Southern Resident killer whales are a 
purported DPS. They conclude that the listing of the Southern Resident 
killer whale DPS is illegal, and therefore, that NMFS should delist the 
DPS.
    The petition focuses entirely on the DPS issue and does not include 
any information regarding the five section 4(a)(1) factors or status of 
population. The petitioners provide both a legal argument regarding the 
DPS determination under the ESA and also a scientific argument 
regarding the biological basis for the DPS determination. There is no 
information presented regarding past and present numbers and 
distribution of the species, the threats faced by the species, or the 
status of the species over all or a significant portion of its range.
    The petition does present new information regarding genetic samples 
and data analysis pertinent to the question of discreteness and the DPS 
determination. The source of the new information comes primarily from a 
scientific peer reviewed journal article published subsequent to the 
listing (Pilot et al., 2010) which includes information regarding 
breeding between different ecotypes of killer whales (i.e., offshores 
and transients). The petitioners also cite new articles regarding 
killer whale vocalizations,

[[Page 70736]]

and review different types of information considered by the BRT and 
presented in the status review (NMFS, 2004).
    As described above, the standard for determination of whether a 
petition includes substantial information is whether the amount of 
information presented provides a basis for us to find that it would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted. We find the analysis of additional genetic 
samples and publication of new peer reviewed scientific journal 
articles regarding the taxonomy of killer whales meets this standard, 
based on the information presented and referenced in the petition, as 
well as all other information readily available in our files. Because 
the petition presents substantial scientific evidence indicating that 
the petition may be warranted we do not address petitioner's legal 
argument now but rather will do so as appropriate at the 12 month 
determination.
    We note that information and results, similar to those presented in 
Pilot et al. (2010), were available at the time of the Status Review 
(NMFS, 2004), Cetacean Taxonomy Workshop (Reeves et al., 2004), DPS 
determination, and listing decision. In addition to the information 
presented in the petition, we have data from new genetic samples and 
peer reviewed scientific journal articles (e.g., Morin et al., 2010, 
Ford et al., 2011) readily available in our files regarding taxonomy 
and breeding behavior of killer whales that address the discreteness 
question and the DPS determination. We are also soliciting any new 
information available to inform the status review. We will consider all 
of the available information in our determination of whether the 
delisting of the Southern Resident killer whale DPS is warranted.

Information Solicited

    To ensure that our status review is complete and based on the best 
available scientific and commercial information, we are soliciting new 
information from the public, governmental agencies, tribes, the 
scientific community, industry, environmental entities, and any other 
interested parties concerning the Southern Resident killer whale DPS. 
The petition focuses on both the legal and biological aspects of the 
DPS determination, and the status review will also focus on the DPS 
determination. We are therefore soliciting new information relevant to 
the factors considered in the DPS determination.

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at:

    Authority: 16 U.S.C. 1531 et seq.

    Dated: November 20, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs.
[FR Doc. 2012-28762 Filed 11-26-12; 8:45 am]
BILLING CODE 3510-22-P