[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Proposed Rules]
[Pages 19176-19178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07355]


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DEPARTMENT OF COMMERCE

National Ocean and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 1206013325-3262-02]
RIN 0648-XA983


Endangered and Threatened Wildlife; 90-day Finding on a Petition 
to List Sperm Whales in the Gulf of Mexico as a Distinct Population 
Segment Under the Endangered Species Act

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

ACTION: 90-day petition finding.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition from 
WildEarth Guardians to list the sperm whale (Physter macrocephalus) as 
an endangered or threatened distinct population segment (DPS) in the 
Gulf of Mexico. We find that the petition presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. As a result, we hereby initiate a status 
review of sperm whales in the Gulf of Mexico to determine whether the 
petitioned action is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
pertaining to this species and potential critical habitat from any 
interested party.

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

ADDRESSES: You may submit information or data, identified by ``NOAA-
NMFS-2013-0059,'' by any one 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 comment'' icon, then enter ``NOAA-NMFS-2013-0059'' 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: Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: All information received is a part of the public 
record and may be posted to http://www.regulations.gov without change. 
All personally identifiable information (for example, name, address, 
etc.) voluntarily submitted may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. NMFS will accept information from anonymous sources, 
although submitting comments anonymously will prevent NMFS from 
contacting you if NMFS has difficulty retrieving your submission. 
Attachments to electronic submissions will be accepted in Microsoft 
Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Heather Coll, NMFS, Office of 
Protected Resources, (301) 427-8455; or Marta Nammack, NMFS, Office of 
Protected Resources (301) 427-8469.

SUPPLEMENTARY INFORMATION: 

Background

    On December 9, 2011, we received a petition from WildEarth 
Guardians to list the sperm whale (Physeter macrocephalus) in the Gulf 
of Mexico as an endangered or threatened DPS under the Endangered 
Species Act (ESA); sperm whales are currently listed as a single 
endangered species throughout their global range (35 FR 8495; June 2, 
1970). The petitioner also requested designation of critical habitat 
concurrent with the listing to help ensure survival of sperm whales in 
the Gulf of Mexico. Copies of the petition are available from us (see 
ADDRESSES, above).

ESA Statutory and Regulatory Provisions and Evaluation Framework

    In accordance with section 4(b)(3)(A) of the ESA, to the maximum 
extent practicable and within 90 days of receipt of a petition to list 
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 the petitioned action may be warranted, 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 
finding as to whether, in fact, the petitioned action is warranted. 
Because the finding at the 12-month stage is based on a comprehensive 
review of all best available information, as compared to the narrow 
scope of review at the 90-day stage, which focuses on information set 
forth in the petition, 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: (1) discreteness of the population segment in relation 
to the remainder of the species to which it belongs; and (2) the 
significance of the population segment to the species to which it 
belongs.
    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: (A) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) 
inadequacy of existing regulatory mechanisms; and (E) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    The ESA requires us to designate critical habitat concurrent with 
final listing rule ``to the maximum extent prudent and determinable'' 
(16 U.S.C. 1533 (a)(3)(A)). The ESA defines ``critical habitat'' as ``* 
* * the specific areas within the geographical area occupied by the 
species at the time it is listed * * * on which are found those 
physical and biological features (I)

[[Page 19177]]

essential to the conservation of the species and (II) which may require 
special management considerations or protection; and * * * specific 
areas outside the geographical area occupied by the species at the time 
it is listed * * * upon a determination * * * that such areas are 
essential for the conservation of the species.'' 16 U.S.C. 1532 (5)(A).
    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 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 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, 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 a reasonable 
person would conclude that it supports the petitioners' assertions. In 
other words, conclusive information indicating that the species may 
meet the ESA's requirements for listing is not required to make a 
positive 90-day finding.

Analysis of Petition

    We first evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(b)(2). The petition contains information on 
the species, including the taxonomy, species description, geographic 
distribution, habitat, population status and trends, and factors 
contributing to the species' population numbers. While the petitioner 
acknowledged the worldwide endangered listing of sperm whales, they 
requested that we partition a Gulf of Mexico DPS from the worldwide 
listing as ``the DPS deserves separate listing as it is a discrete 
population that is also significant to the species and faces additional 
unique threats to its survival.''

DPS Analysis

    The petition requests that we designate sperm whales in the Gulf of 
Mexico as a threatened or endangered DPS, and presents arguments that 
sperm whales in the Gulf of Mexico meet the Services' requirements for 
identifying a DPS eligible for listing. Our joint NMFS-USFWS DPS policy 
(February 7, 1996; 61 FR 4722) identifies two elements that must be 
considered when identifying a DPS: (1) the discreteness of the 
population segment in relation to the remainder of the species (or 
subspecies) to which it belongs; and (2) the significance of the 
population segment to the species to which it belongs. A population 
segment of a vertebrate species may be considered discrete if it 
satisfies either one of the following conditions: (1) It is markedly 
separated from other populations of the same taxon as a consequence of 
physical, physiological, ecological, or behavioral factors. 
Quantitative measures of genetic or morphological discontinuity may 
provide evidence of this separation; or (2) It is delimited by 
international governmental boundaries within which differences in 
control of exploitation, management of habitat, conservation status, or 
regulatory mechanisms exist that are significant in light of section 
4(a)(1)(D) of the ESA. If a population segment is considered discrete 
under one or more of the above conditions, its biological and 
ecological significance will then be considered in light of 
Congressional guidance (see Senate Report 151, 96th Congress, 1st 
Session) that the authority to list DPS's be used '' * * * sparingly'' 
while encouraging the conservation of genetic diversity. In carrying 
out this examination, the Services will consider available scientific 
evidence of the discrete population segment's importance to the taxon 
to which it belongs. This consideration may include, but is not limited 
to, the following: (1) Persistence of the discrete population segment 
in an ecological setting unusual or unique for the taxon; (2) evidence 
that loss of the discrete population segment would result in a 
significant gap in the range of a taxon; (3) evidence that the discrete 
population segment represents the only surviving natural occurrence of 
a taxon that may be more abundant elsewhere as an introduced population 
outside its historic range; or (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics.
    Petitioners present information indicating that sperm whales in the 
Gulf of Mexico are physically and behaviorally different from other 
sperm whales, and that international boundaries and separate management 
also qualify them as discrete under the DPS policy. Physical 
differences presented in the petition are genetic and size differences. 
With respect to behavior, petitioners cite communication, group size, 
and lack of migration as differences rendering sperm whales in the Gulf 
of Mexico as discrete from other populations. Finally, petitioners 
assert that the Gulf of Mexico population is partly delineated by 
international boundaries with Mexico and therefore subject to different 
governmental management in Mexican waters.
    Petitioners argue that sperm whales in the Gulf of Mexico are 
significant because their lack of migration behavior indicates 
persistence in an ecological setting unusual or unique for the taxon 
and that the loss of such a population would result in a significant 
gap in the range of the taxon. They also point to genetic 
characteristics to support their assertion that sperm whales in the 
Gulf of Mexico are significant in that they differ from other 
populations.

[[Page 19178]]

Analysis of ESA Section 4(a)(1) Factors

    The petition states that sperm whales in the Gulf of Mexico are 
more at risk than other sperm whales which are listed globally as 
endangered. Petitioners identify at least three causal factors in 
section 4(a)(1) of the ESA that are contributing to the decline of 
sperm whales in the Gulf of Mexico. The petition provides information 
on the present or threatened destruction, modification, or curtailment 
of the petitioned DPS' habitat or range; the inadequacy of existing 
regulatory mechanisms; and other natural or manmade factors affecting 
its continued existence. Specifically, the petition presents 
information on multiple threats to sperm whales in the Gulf of Mexico, 
including oil and gas development and the recent Deepwater Horizon 
spill, destruction of coastal habitats, water pollution including the 
Gulf's ``dead zone,'' fishery interactions, anthropogenic noise, ship 
strikes, and climate change. The petition also states that there is a 
lack of adequate regulatory mechanisms to manage those threats.

Petition Finding

    Based on the above information and criteria specified in 50 CFR 
424.14(b)(2), we find that the petitioners present substantial 
scientific and commercial information indicating that listing sperm 
whales (Physeter macrocephalus) in the Gulf of Mexico as an endangered 
or threatened DPS may be warranted.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether sperm whales in the Gulf of Mexico should be identified as a 
DPS and, if so, whether the DPS should be listed as endangered or 
threatened based on the above ESA section 4(a)(1) factors. 
Specifically, we are soliciting information, for this population, in 
the following areas: (1) Its discreteness in relation to the remainder 
of its species; (2) its significance to the global species of sperm 
whales; (3) historical and current population status and trends; (4) 
historical and current distribution; (5) migratory movements and 
behavior; (6) genetic population structure; (7) current or planned 
activities that may adversely impact sperm whales in the Gulf of 
Mexico; and (8) ongoing efforts to conserve sperm whales in the Gulf of 
Mexico. We request that all information and data be accompanied by 
supporting documentation such as (1) maps, bibliographic references, or 
reprints of pertinent publications; and (2) the submitter's name, 
address, and any association, institution, or business that the person 
represents.
    We are also requesting information on areas within U.S. 
jurisdiction that may qualify as critical habitat for sperm whales in 
the Gulf of Mexico that we might consider for designation. Areas that 
include the physical and biological features essential to the 
conservation of the species should be identified, and information 
regarding the potential need for special management considerations for 
those features should be provided. Essential features include, but are 
not limited to (1) space for individual growth and for normal behavior; 
(2) food, water, air, light, minerals, or other nutritional or 
physiological requirements; (3) cover or shelter; (4) sites for 
reproduction and development of offspring; (5) habitats that are 
protected from disturbance or are representative of the historical, 
geographical and ecological distributions of the species (50 CFR 
424.12(b)).

References Cited

    A complete list of references is available upon request from NMFS 
Protected Resources Headquarters Office (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 25, 2013.
Alan Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-07355 Filed 3-28-13; 8:45 am]
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