[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Notices]
[Pages 47277-47282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18824]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 121025586-3654-01]
RIN 0648-XC326


Listing Endangered or Threatened Species: 12-Month Finding on a 
Petition To Delist the Southern Resident Killer Whale

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

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing 
a 12-month finding on a petition to delist the Southern Resident killer 
whale (Orcinus orca) Distinct Population Segment (DPS) under the 
Endangered Species Act (ESA). We listed the Southern Resident killer 
whale DPS as endangered under the ESA in 2005. We accepted the petition 
to delist the Southern Resident killer whale DPS on November 27, 2012, 
initiating a public comment period and a status review. Based on our 
review of the petition, public comments, and the best available 
scientific information, we find that delisting the Southern Resident 
killer whale DPS is not warranted.

DATES: The finding announced in this document was made on August 5, 
2013.

ADDRESSES: This finding and supporting information are available on our 
Web page at: http://www.nwr.noaa.gov/protected_species/marine_mammals/killer_whale/delist_petition.html.

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

[[Page 47278]]

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)) and 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. On November 27, 2012 (77 FR 70733), we made a 
finding that there was sufficient information indicating that the 
petitioned action may be warranted and requested comments to inform a 
status review.
    After accepting a petition and initiating a status review, 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. In this notice, we make a finding that the petitioned 
action to delist the Southern Resident killer whale DPS is not 
warranted.
    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/taxon, and, if discrete; (2) the 
significance of the population segment to the species/taxon.
    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)). Thus, we interpret an ``endangered species'' to be one that is 
presently in danger of extinction. A ``threatened species,'' on the 
other hand, is not presently in danger of extinction, but is likely to 
become so in the foreseeable future (that is, at a later time). In 
other words, the primary statutory difference between a threatened and 
endangered species is the timing of when a species may be in danger of 
extinction, either presently (endangered) or in the foreseeable future 
(threatened). 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)).

Background

    Three distinct forms or ecotypes of killer whales, termed 
residents, transients, and offshores, are recognized in the 
northeastern Pacific Ocean. Resident killer whales in U.S. waters are 
distributed from Alaska to California, with distinct populations: 
Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al., 
2002; 2004). Resident killer whales are fish eaters and live in stable 
matrilineal pods. The West Coast transient killer whales have a 
different social structure, are found in smaller groups, and eat marine 
mammals. Offshore killer whales are found in large groups and their 
diet is presumed to consist primarily of fish, including sharks. While 
the ranges of the different ecotypes of whales overlap in the 
northeastern Pacific Ocean, available genetic data indicate that there 
is a high degree of reproductive isolation among residents, transients, 
and offshores (Krahn et al., 2004; NMFS, 2013).
    The Southern Resident killer whale population consists of three 
pods, identified as J, K, and L pods, that reside for part of the year 
in the inland waterways of Washington State and British Columbia 
(Strait of Georgia, Strait of Juan de Fuca, and Puget Sound), 
principally during the late spring, summer, and fall (NMFS, 2008). Pods 
visit coastal sites off Washington and Vancouver Island, and travel as 
far south as central California and as far north as Southeast Alaska 
(Ford et al., 2000; NMFS, 2008; Department of Fisheries and Oceans, 
unpublished data).
    In 2001 we received a petition to list the Southern Resident killer 
whale population as threatened or endangered under the ESA (CBD, 2001) 
and we formed a Biological Review Team (BRT) to assist with a status 
review (NMFS, 2002). After conducting the status review, we determined 
that listing the Southern Resident killer whale population as a 
threatened or endangered species was not warranted because the science 
at that time did not support identifying the Southern Resident killer 
whale population as a distinct population segment 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

[[Page 47279]]

whether the Southern Resident killer whale population 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 the Southern Resident killer whale DPS 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 the Southern Resident 
killer whale DPS. We issued a final rule designating critical habitat 
for the Southern Resident killer whale DPS 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 (6,630 square km) of Puget Sound. The 
designation excludes areas with water less than 20 feet (6.1 m) deep 
relative to extreme high water. After engaging stakeholders and 
providing multiple drafts for public comment, we announced the Final 
Recovery Plan for the Southern Resident killer whale DPS 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 5-year 
review of the ESA status of the Southern Resident killer whale DPS, 
concluding that no change was needed in its listing status and that the 
Southern Resident killer whale DPS would remain listed as endangered 
(NMFS, 2011). The 5-year review also noted that there was no relevant 
new information for this species regarding the application of the DPS 
policy.

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 there is no scientific basis for the 
designation of the unnamed North Pacific Resident subspecies of which 
the Southern Resident killer whale population is a purported DPS. The 
petitioners also 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. They conclude that the listing of the Southern 
Resident killer whale DPS was in error and is illegal and therefore 
NMFS should delist the DPS.
    The petition focused entirely on the basis for identifying the 
North Pacific Resident killer whales as a subspecies and the reference 
unit for the Southern Resident DPS and did not include any information 
regarding the five section 4(a)(1) factors or status of the population. 
The petitioners provided both a scientific argument regarding the 
biological basis for the subspecies and DPS determination and also a 
legal argument regarding the subspecies and DPS determination under the 
ESA. There was no information presented regarding past or 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 presented new information regarding genetic samples 
and data analysis pertinent to the status of the North Pacific Resident 
population as a subspecies and the subsequent Southern Resident killer 
whale DPS determination. The source of the new information was 
primarily 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 cited new 
articles regarding killer whale vocalizations, and reviewed different 
types of information considered by the BRT and presented in the status 
review report (NMFS, 2004).
    On November 27, 2012, we found that the information contained in 
the petition, viewed in the context of information readily available in 
our files, presented substantial scientific information indicating the 
petitioned action may be warranted. We noted 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 
also acknowledged data from additional new genetic samples and peer 
reviewed scientific journal articles (e.g., Morin et al., 2010; Ford et 
al., 2011) regarding taxonomy and breeding behavior of killer whales 
that address the discreteness question and the DPS determination.
    Our 90-day finding accepting the petition solicited information 
from the public and initiated a status review of the Southern Resident 
killer whale DPS to gather any additional information to inform our 
review of the petitioned action and our application of the DPS policy. 
During the public comment period for receiving information, which 
closed on January 28, 2013, we received over 2,750 comments. Despite 
our request for specific scientific and commercial information, the 
vast majority of commenters simply noted their opposition to the 
petition to delist the Southern Resident killer whale DPS, while a 
handful of comments supported the petition. Several commenters 
disagreed with the 90-day finding and suggested that the petition 
should be rejected and not considered any further. We did receive 
several substantive comments regarding both the biological and legal 
aspects of the DPS determination as raised in the petition.
    We provided a summary of the substantive comments to the NMFS 
Northwest Fishery Science Center (Center) with a request to evaluate 
whether any of the new information would suggest alternative 
conclusions than those of the BRT regarding the DPS determination in 
the 2004 status review (Krahn et al., 2004). Specifically, we

[[Page 47280]]

requested that the Center consider if there is new best available 
information that would lead to different conclusions from those in 
Krahn et al. (2004) regarding the North Pacific Resident killer whale 
subspecies or the discreteness or significance of the Southern Resident 
killer whale population. The Center provided a status review update 
(NMFS, 2013) that included a review of (1) taxonomic issues addressed 
by the 2004 BRT (Krahn et al., 2004); (2) biological points raised in 
the petition; (3) information provided by the public; (4) new 
information on morphology, feeding ecology, diet, and genetics; (5) 
conclusions about the determinations of the reference taxonomic group, 
or taxon, for evaluating discreteness and significance; and (6) 
conclusions about the DPS determination made in 2004. The status review 
update and determinations about the taxon and DPS (NMFS, 2013) informs 
our 12-month finding about the petitioned action to delist the Southern 
Resident killer whale DPS.

Determination of Taxon and DPS

    Based on the best information available, we previously concluded, 
with advice from the 2004 BRT, that the Southern Resident killer whale 
population (J, K, and L pods) met the two criteria of the DPS policy 
and constituted a DPS of the North Pacific Resident subspecies. The 
following discussion describes our evaluation of the North Pacific 
Resident subspecies and DPS status of the Southern Resident population 
during the 2005 rulemaking, and our evaluation of its DPS status based 
on the new information available since that rulemaking and best 
available science review and advice from the Center (NMFS, 2013). The 
evaluation considers: (1) The reference taxon for consideration under 
the DPS policy; (2) the discreteness of the Southern Resident 
population from other populations within that taxon; and (3) the 
significance of the Southern Resident population to that taxon.

Reference Taxon

    During the 2005 rulemaking we concluded that the proper reference 
taxon for consideration under the DPS policy was an unnamed subspecies 
of North Pacific Resident killer whales, distinct from North Pacific 
transient killer whales, North Pacific offshore killer whales, and 
other resident killer whales world-wide. We reached this conclusion 
based on several lines of evidence, including differences in 
morphology, behavior, diet and feeding ecology, acoustical dialects and 
practices, and both mtDNA and nuclear DNA variation (Krahn et al., 
2004). The lines of evidence supporting differentiation between the 
ecotypes of North Pacific whales are relevant to and inform the basis 
for identifying the North Pacific Resident killer whales taxonomically, 
as a subspecies (NMFS, 2013).
    After reviewing information in the petition, the public comments, 
and the scientific literature published in the 9 years since the 2004 
status review, we find no new information that leads to a different 
conclusion from that reached in the 2005 rulemaking, and the weight of 
evidence continues to support our conclusion that the North Pacific 
Resident killer whales represent a taxonomic subspecies. To the 
contrary, new information is consistent with and further supports the 
2005 finding. All of the new genetic data and analyses published since 
2004, including the Pilot et al. (2010) paper discussed extensively in 
the petition, show a high degree of contemporary reproductive isolation 
among the North Pacific killer whale ecotypes (resident, transients, 
and offshores). No genetic analysis published since the 2004 status 
review has indicated a higher level of interbreeding among these 
ecotypes than was indicated by the analysis considered by the 2004 BRT.
    In addition to new genetic data and analyses, the studies on 
feeding ecology and diet published since 2004 are generally consistent 
with or strengthen the 2004 BRT's conclusions that the ecotypes differ 
in diet and feeding ecology. The one new study that addresses 
morphological differences between the ecotypes (Zerbini et al., 2007) 
supports the 2004 BRT's conclusion that the ecotypes can be 
morphologically differentiated.
    No new information on acoustics or behavior contradicts the 
conclusions of the 2004 BRT. Recent observations (Center unpublished 
data, 2013) indicate that North Pacific offshore killer whales consume 
at least some Chinook salmon (indicating a similarity with North 
Pacific Residents), but observations, stable isotopes, and tooth wear 
data indicate substantial dietary differences (Dahlheim et al., 2008; 
Ford et al., 2011).
    Finally, in 2012 the Society of Marine Mammalogy formally 
recognized North Pacific Residents as an unnamed subspecies (Committee 
on Taxonomy, 2012). Recognition by this organization alone does not 
amount to a ``precise, formal taxonomic redefinition of killer 
whales,'' but it is an important addition to the weight of evidence 
regarding the existence of the North Pacific resident killer whale 
subspecies.
    Based on the above evaluation, we conclude that the best available 
scientific information indicates that the North Pacific Resident 
subspecies is the appropriate reference taxon for considering whether 
the Southern Resident killer whale population is discrete and 
significant, despite the fact that the taxonomic community has not yet 
formally named the subspecies. As noted in the 2004 BRT report, 
``formal taxonomic changes are often slow to occur and lag behind 
current knowledge.''

Discreteness of the Southern Resident Population From Other Populations 
Within the Taxon

    In our 2005 rulemaking we concluded that there was strong evidence 
that the Southern Resident killer whale population is discrete from 
other North Pacific Resident killer whale populations as defined by the 
1996 DPS policy, citing significant genetic differentiation, separate 
demographic trajectories, differences in core and summer range, and 
behavioral differences from other resident populations (Krahn et al., 
2004).
    The new information subsequent to 2004 is consistent with and 
generally strengthens the conclusion that the Southern Resident killer 
whale population is a discrete population within the North Pacific 
Resident taxon. In particular, recent genetic studies all indicate that 
the Southern Resident population is significantly differentiated from 
other resident populations. A recent analytical comparison of 
demographic rates found significant differences in both survival and 
fecundity rates between the Southern Resident population and the 
Northern Resident population, providing further evidence of demographic 
discreteness (Ward et al., in press). New information on the winter 
range of the Southern Resident population provides a considerably more 
complete picture than was available in 2004, and continues to indicate 
that K and L pods, in particular, have a winter and summer range 
distinct from other resident populations, although the Southern 
Resident population does overlap substantially with some of the 
Northern Resident population. In short, as in 2004, all the available 
information clearly indicates that the Southern Resident population is 
discrete from other populations in the North Pacific resident 
subspecies.

[[Page 47281]]

The Significance of the Southern Resident Population to the Taxon

    Below we discuss each of the factors listed by the 2004 BRT in 
support of its finding that the Southern Resident population is 
significant to the North Pacific Resident killer whale subspecies.
    Ecological setting and range--The 2004 BRT noted that the Southern 
Resident population appeared to occupy a distinct ecological setting, 
being the only North Pacific resident population to spend substantial 
time in the California Current ecosystem and having a diet somewhat 
different from other resident populations, particularly those in 
Alaska. The BRT also cited the possibility that the Southern Resident 
population historically utilized the large runs of salmon to the 
Sacramento and Columbia River basins as a major source of prey. With 
regard to range, the BRT noted that the Southern Resident population 
was the only resident population observed spending time in Puget Sound 
and off the coasts of Washington, Oregon, and California and that if it 
were to become extirpated, this would result in a significant reduction 
in the North Pacific Residents' range.
    New information since 2004 generally continues to support most of 
these conclusions, but also challenges some of them. In particular, new 
information on the coastal distribution of the Southern and Northern 
Resident populations confirms that the Southern Residents spend 
substantial time in coastal areas of Washington, Oregon and California 
and utilize salmon returns to these areas (Center, unpublished data). 
However, there is also new information indicating that the Northern 
Resident population may spend more time off the Washington coast than 
was previously believed (Riera et al., 2011; Center, unpublished data). 
In addition, diet information on the Alaskan resident populations 
indicates that some of these populations also consume salmon, although 
not the Chinook salmon that dominate the Southern and Northern Resident 
diets (Saulitis et al., 2000). Updated diet data from the Southern and 
Northern Resident populations confirm that these two populations have 
very similar diets and consume many of the same salmon stocks (Ford et 
al., 2010; Hanson et al., 2010). Overall, the Southern resident 
population remains unique in occupying the southernmost part of the 
North Pacific Resident's range, and is clearly occupying a different 
ecological setting from populations in Alaska and farther west around 
the Pacific Rim. The southern portion of the Southern Resident 
population's range is quite distinct from that of the Northern Resident 
population, even though the Southern and Northern residents clearly 
share a similar ecological setting throughout much of their ranges.
    Genetic differentiation--Genetic data available since 2004 confirm 
or strengthen the conclusion that the Southern Resident population is 
genetically unique from other resident populations. In particular, 
there are no new data to change the 2004 BRT's conclusions that the 
Southern Resident population differs markedly from other North Pacific 
resident populations at both nuclear and mitochondrial genes.
    Behavioral and cultural diversity--The 2004 BRT noted several 
instances of known and apparent cultural differentiation among resident 
killer whale populations, and hypothesized, based on studies in other 
long-lived mammals, that such diversity could be important for the 
survival of the North Pacific Resident taxon as a whole. Since 2004, 
several studies have contributed further information to this topic. For 
example, Ward et al. (2011, unpublished report) found significant 
differences in survival among the three Southern Resident pods and 
between the Southern and Northern Resident populations. These 
differences are likely related to differences in diet and habitat use, 
both of which appear to be culturally determined. Riesch et al. (2012) 
and Foote (2012) reviewed cultural differences, particularly acoustic 
behavior and prey preferences, among killer whale populations and 
ecotypes, and concluded that such cultural differences may be leading 
to reproductive isolation and subsequent ecological speciation. On the 
whole, therefore, the available data appear consistent with the BRT's 
conclusion that such cultural differences may be important factors in 
the overall viability of the North Pacific Resident killer whale taxon.
    In conclusion, the new information on genetics and behavioral and 
cultural diversity available since 2004 is consistent with or 
strengthens the 2004 BRT's conclusion that the Southern Resident killer 
whale population meets the significance criterion of the DPS policy. 
New information on ecological setting and range tends to weaken the 
2004 BRT's conclusion somewhat, as it indicates greater overlap in 
range and diet with other resident and offshore populations than was 
previously believed. However, in total, the new information available 
since 2004 regarding significance appears consistent with the 2004 
BRT's conclusion.

12-Month Finding

    As summarized above, the petitioners focused on biological and 
legal aspects of identification of the North Pacific Resident killer 
whale as a subspecies and the DPS determination for the Southern 
Resident killer whale population and assert that the listing was in 
error. The petitioners contend that the Southern Resident killer whale 
DPS does not constitute a listable unit under the ESA because there is 
no scientific basis for the identification of the unnamed North Pacific 
Resident subspecies of which the Southern Resident killer whale 
population is a DPS and because NMFS is without authority to list a DPS 
of a subspecies. As described above, we reviewed the available 
scientific information available since 2004, and we find that the 
majority of new information supports or strengthens the DPS 
determination. Further, in accordance with the DPS policy and after 
reviewing the petition, information from the public, and the best 
available information, we determine that the Southern Resident 
population is discrete and significant with respect to the North 
Pacific Resident subspecies, and therefore, constitutes a valid DPS. 
This determination is consistent with the previous DPS determination 
(Krahn et al., 2004) and, therefore, we conclude that the original data 
for classification were not in error and delisting is not warranted. In 
the absence of such error, we continue to recognize the Southern 
Resident killer whale DPS as a listable unit.
    Petitioners' legal argument regarding the authority to list the DPS 
of a subspecies was raised in the context of the 1996 DPS policy and in 
that policy we stated, ``[t]he Services maintain that the authority to 
address DPS's extends to species in which subspecies are recognized, 
since anything included in the taxon of lower rank is also included in 
the higher ranking taxon.'' (61 FR 4722; February 7, 1996). The 
position taken in the DPS policy is grounded in the statutory language 
of the ESA. The ESA authorizes listing of species and defines 
``species'' to include ``any subspecies of fish or wildlife or plants 
and any distinct population segment of any species of vertebrate fish 
or wildlife which interbreeds when mature,'' 16 U.S.C. Section 1532 
(16). Because the definition of species includes ``subspecies'' it is 
reasonable to interpret the phrase ``DPS of any species'' to include 
``DPS of any subspecies.'' In addition, several courts have upheld 
the1996 DPS policy as a reasonable interpretation of the ESA entitled 
to

[[Page 47282]]

deference (NW Ecosystem Alliance v. USFWS, 475 F3d 1136 (2007); Center 
for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223 (W.D. Wash. 
2003)); and one court expressly addressed the issue raised here and 
upheld the Services' interpretation that a DPS of a subspecies is a 
listable unit (Center for Biological Diversity v. USFWS, 274 Fed. Appx. 
542, n.5 (9th Cir. 2008)) (unpublished). For this reason also, we 
continue to recognize the Southern Resident killer whale DPS as a 
listable unit.
    In addition to delisting because of an error in the original 
classification, we may also delist species based on extinction or 
recovery. The petition did not include any information on the number of 
whales in the population, threats, or risk of extinction. As part of 
the ESA listing of the Southern Resident killer whale DPS (70 FR 69903; 
November 18, 2005) we conducted an analysis of the five ESA section 
4(a)(1) factors and concluded that the DPS was in danger of extinction 
and listed it as endangered. While progress toward recovery has been 
achieved since the listing, as described in the 5-year review, the 
status of the DPS remains as endangered. Since the 5-year review was 
completed, additional actions have been taken to address threats, such 
as regulations to protect killer whales from vessel impacts (76 FR 
20870; April 14, 2011), completion of a scientific review of the 
effects of salmon fisheries on Southern Resident killer whales 
(Hilborn, 2012), and ongoing technical working groups with the 
Environmental Protection Agency to assess contaminant exposure. 
However, the population growth outlined in the biological recovery 
criteria and some of the threats criteria have not been met. We have no 
new information that would change the recommendation in our 5-year 
review that the Southern Resident killer whale DPS remain classified as 
endangered (NMFS, 2011). Our determination that the Southern Resident 
killer whale population constitutes a DPS under the ESA and previous 
conclusion that the DPS is in danger of extinction and should retain 
endangered status all support our finding that the petitioned action to 
delist the Southern Resident killer whale DPS is not warranted.

References Cited

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

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


    Dated: July 30, 2013.
Alan D. 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. 2013-18824 Filed 8-2-13; 8:45 am]
BILLING CODE 3510-22-P