[Federal Register Volume 79, Number 123 (Thursday, June 26, 2014)]
[Proposed Rules]
[Pages 36281-36284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14961]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 140422365-4365-01]
RIN 0648-XD267


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To Identify the Central North Pacific Population of Humpback Whale as a 
Distinct Population Segment (DPS) and Delist the DPS Under the 
Endangered Species Act

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

ACTION: 90-day petition finding; request for information.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to identify 
the Central North Pacific population of humpback whale (Megaptera 
novaeangliae) as a Distinct Population Segment (DPS) and delist the DPS 
under the Endangered Species Act (ESA). We find that the petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted. Therefore, we are 
continuing our status

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review for the humpback whale to determine whether this population is a 
DPS and whether delisting is warranted. To ensure this status review is 
comprehensive, we solicit scientific and commercial information 
regarding this species.

DATES: Information and comments must be received by July 28, 2014.

ADDRESSES: You may submit comments on this document, identified by FDMS 
Docket Number NOAA-NMFS-2014-0051, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0051, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Address written comments to Jon Kurland, Assistant 
Regional Administrator for Protected Resources, Alaska Region NMFS, 
Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 
99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS 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, or Adobe PDF file formats only.
    Interested persons may obtain a copy of the petition online at the 
NMFS Alaska Region Web site: http://alaskafisheries.noaa.gov/protectedresources/whales/humpback/.

FOR FURTHER INFORMATION CONTACT: Aleria Jensen, NMFS Alaska Region, 
(907) 586-7248 or Jon Kurland, NMFS Alaska Region, (907) 586-7638.

SUPPLEMENTARY INFORMATION: 

Background

    On August 12, 2009, we announced the initiation of a status review 
of the humpback whale globally to determine whether an endangered 
listing for the entire species was still appropriate (74 FR 40568). The 
agency formed a Biological Review Team to evaluate the status of the 
species and produce a final report, which has not yet been released.
    On April 17, 2013, we received a petition from the Hawaii 
Fishermen's Alliance for Conservation and Tradition, Inc., to classify 
the North Pacific humpback whale population as a DPS and delist the DPS 
under the ESA. We found that the petitioned action may be warranted (78 
FR 53391; August 29, 2013) and incorporated the consideration of the 
petitioned action into the ongoing status review commenced in 2009.
    On February 26, 2014, we received a petition from the State of 
Alaska to identify The Central North Pacific population of humpback 
whale as a DPS and delist the DPS under the ESA. Humpback whales in the 
North Pacific are divided into three separate stocks under the Marine 
Mammal Protection Act (MMPA): The Central North Pacific (or Hawaii) 
stock, the western North Pacific (or Asia) stock, and the California/
Oregon/Washington and Mexico (or Mexico/Central America) stock. These 
stocks have formed the basis for monitoring population trends pursuant 
to the MMPA since the mid-1990s.

Distribution and Life History of the Central North Pacific Population 
of the Humpback Whale

    For information on the distribution and life history of the Central 
North Pacific (or Hawaii) population of the humpback whale, see Fleming 
and Jackson (2011), Global Summary of the Humpback Whale, information 
that was recently compiled for NMFS's 5-year review of the humpback 
whale and published as a NOAA Technical Memorandum, and our 90-day 
finding on the petition to delist the North Pacific population of the 
humpback whale (78 FR 53391; August 29, 2013).

ESA Statutory, Regulatory, and Policy Provisions

    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 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, 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 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 policy 
issued by NMFS and the U.S. Fish and Wildlife Service (the Services) 
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

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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 the 
petitioned action is warranted 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 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.
    In evaluating whether a petition to delist a population is 
warranted, first we evaluate whether the information presented in the 
petition, along with the information readily available in our files, 
indicates that the petitioned entity constitutes a ``species'' eligible 
for delisting under the ESA. If so, we then evaluate whether the 
information indicates that the species no longer faces an extinction 
risk that is cause for concern; this may be indicated in information 
expressly discussing the species' status and trends, or in information 
describing impacts and threats to the species. We evaluate any 
information on specific demographic factors pertinent to evaluating 
extinction risk for the species (e.g., population abundance and trends, 
productivity, spatial structure, age structure, sex ratio, diversity, 
current and historical range, habitat integrity or fragmentation), and 
the potential contribution of identified demographic risks to 
extinction risk for the species. We then evaluate the potential links 
between these demographic risks and the causative impacts and threats 
identified in section 4(a)(1).

Analysis of Petition

    The State of Alaska maintains that the Central North Pacific, or 
Hawaii, stock, constitutes a DPS under the ESA. Based on photo-
identification and genetic data, we currently recognize the Central 
North Pacific humpback whale population as one of three discrete stocks 
in the North Pacific under the MMPA. The petition notes this 
demographic distinctness, and asserts that the Central North Pacific 
humpback whale population qualifies as a DPS due to its strong 
behavioral and genetic fidelity to specific breeding and feeding areas 
over generations. The State of Alaska argues that the population is 
markedly separated from other North Pacific populations based on 
physical, behavioral, and management factors, and qualifies as a 
significant and discrete population because of these factors.
    Further, the State asserts that this population has recovered to 
the point that it is no longer threatened with extinction, based on an 
analysis of available scientific and commercial information. The 
petition asserts that the Central North Pacific humpback whale is now 
found throughout its historical range, having rebounded following the 
end of commercial whaling. The petition points to recent population 
estimates which place the current Central North Pacific humpback whales 
at a higher population level than that which existed at the onset of 
modern whaling (pre-1905). The State of Alaska also refers to the 1991 
Humpback Whale Recovery Plan and claims that sufficient information 
exists to demonstrate that the Central North Pacific population has met 
the recovery goals contained within the plan.
    Finally, the State analyzes the five ESA section 4(a)(1) factors 
and concludes that the threats leading to the population's endangered 
status have been either completely eliminated or sufficiently reduced 
or controlled so that the long-term survival of the species is ensured 
and the protections provided by the ESA are no longer necessary. They 
assert that threats from destruction, modification, or curtailment of 
the population's habitat or range have been sufficiently controlled 
(e.g., oil and gas development, water quality, coastal development, 
contaminants, impacts to prey base); that overutilization for 
commercial, recreational, scientific, or educational purposes is no 
longer a threat (e.g., whaling); that disease and predation are not a 
threat (e.g., from killer whales or sharks); that existing regulatory 
mechanisms are adequate to protect the population (e.g., MMPA, ESA, 
Magnuson-Stevens Fishery Conservation and Management Act, the Fisheries 
Act of Canada, Canadian Species at Risk Act); and that other natural or 
manmade factors affecting its continued existence have been 
sufficiently reduced or do not pose a

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threat (e.g., fishery interactions, ship strikes, acoustics, 
pollutants, climate change). In summary, the petition concludes that 
the recovering population in combination with the removal of previously 
identified threats qualifies the Central North Pacific humpback whale 
population for delisting under the ESA.

Petition Finding

    We have reviewed the petition, the literature cited in the 
petition, and other literature and information available in our files. 
Although we identified some incomplete information and unsupported 
conclusions within the petition, we find that the information presented 
in the petition would lead a reasonable person to believe that the 
petitioned action may be warranted. Considering the requirements of 50 
CFR 424.14(b) for addressing petitions at the 90-day finding stage, we 
have therefore determined that the petition, the literature cited in 
the petition, and other literature and information readily available in 
our files constitute substantial information indicating that the 
petitioned action may be warranted.
    As a result of this finding, we will continue our status review of 
the humpback whale to determine whether the Central North Pacific 
humpback whale population constitutes a DPS under the ESA, and if so, 
the risk of extinction to this DPS. Based on the results of the status 
review, we will then determine whether delisting or downlisting (from 
endangered to threatened) the Central North Pacific population of the 
humpback whale is warranted.

Request for Information

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on the 
humpback whale, with a focus on the Central North Pacific population, 
in the following areas: (1) Taxonomy, abundance, reproductive success, 
age structure, distribution, habitat selection, food habits, population 
density and trends, and habitat trends; (2) historical and current 
population status and trends; (3) historical and current distribution; 
(4) migratory movements and behavior; (5) genetic population structure, 
as compared to other populations; (6) the effects of vessel strikes, 
entanglements, acoustic impacts, and climate change, on the 
distribution and abundance of Central North Pacific humpback whales and 
their principal prey over the short- and long-term; (7) the effects of 
other threats, including whaling, disease and predation, contaminants, 
fishing, industrial activities, or other known or potential threats; 
(8) the effects of research on Central North Pacific humpback whales; 
(9) management or conservation programs for Central North Pacific 
humpback whales, including mitigation measures associated with private, 
tribal or governmental conservation programs which benefit this 
population; and (10) current or planned activities that may adversely 
impact humpback whales. 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.

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

    Dated: June 20, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-14961 Filed 6-25-14; 8:45 am]
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