Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76673

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 223

[Docket No. 041213348–4348–01; I.D. 

110904E]

RIN 0648–AS95

Endangered and Threatened Wildlife 

and Plants: Proposed Threatened 

Status for Southern Resident Killer 

Whales

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; request for 

comments.

SUMMARY: We, the NMFS, have 

completed an update on the status 

review of Southern Resident killer 

whales (Orcinus orca) under the 

Endangered Species Act (ESA). Based 

on the review of the best available 

scientific and commercial information, 

including new data, published papers, 

and workshop reports available since 

the review in 2002, we are proposing to 

list the Southern Resident killer whales 

as threatened because these killer 

whales constitute a distinct population 

segment (DPS) under the ESA and are 

likely to become endangered in the 

foreseeable future throughout all or a 

significant portion of their range. We are 

not proposing to designate critical 

habitat at this time, but are requesting 

public comments on the issues 

pertaining to this proposed rule.

DATES: Comments must be received by 

March 22, 2005. Requests for public 

hearings must be made in writing by 

February 7, 2005. We have already 

scheduled public hearings on this 

proposed rule as follows:

Thursday, February 17, 2005, from 

1:30 – 4:30 pm and 6:30 – 9 pm at the 

Seattle Aquarium, 1483 Alaskan Way, in 

Seattle, WA 98101;

Monday, February 28, 2005, from 1:30 

– 4:30 pm and 6:30 - 9 pm at the Friday 

Harbor Labs, 620 University Road, 

Friday Harbor, WA 98250.

The 1:30 – 4:30 pm afternoon sessions 

will be provided for local practitioners 

and stakeholder parties, and the 6:30 –

9:30 pm evening ‘‘open house’’ sessions 

are designed for broader public 

participation. Additional information 

regarding the meetings is available via 

the Internet at http://www.nwr.noaa.gov.

ADDRESSES: Comments should be 

submitted to Chief, Protected Resources 

Division, 525 NE Oregon Street, Suite 

500, Portland, OR, 97232–2737. 

Comments may also be submitted 

electronically via the Federal eRulemaking Portal at http://

www.regulations.gov or by sending an email message to 

SRKWstatus.nwr@noaa.gov.

FOR FURTHER INFORMATION CONTACT: Mr. 

Garth Griffin, Northwest Regional 

Office, Portland, OR (503) 231–2005, or 

Ms. Marta Nammack, Office of Protected 

Resources, Silver Spring, MD (301) 713–

1401, ext. 180.

SUPPLEMENTARY INFORMATION:

Electronic Access

A list of references cited in this notice 

is available via the Internet at http://

www.nwr.noaa.gov. Additional 

information, including agency reports 

and written comments, is also available 

at this Internet address.

Background

On May 2, 2001, we received a 

petition from the Center for Biological 

Diversity and 11 co-petitioners (CBD, 

2001) to list Southern Resident killer 

whales as threatened or endangered 

under the ESA. On August 13, 2001, we 

provided notice of our determination 

that the petition presented substantial 

information that a listing may be 

warranted and requested information to 

assist with a status review to determine 

if Southern Resident killer whales 

warranted listing under the ESA (66 FR 

42499). To assist in the status review, 

we formed a Biological Review Team 

(BRT) of scientists from our Alaska, 

Northwest, and Southwest Fisheries 

Science Centers. We convened a 

meeting on September 26, 2001, to 

gather technical information from comanagers, scientists, and individuals 

having research or management 

expertise pertaining to killer whale 

stocks in the North Pacific Ocean. 

Additionally, the BRT discussed its 

preliminary scientific findings with 

Tribal, State and Canadian co-managers 

on March 25, 2002. The BRT considered 

information from the petition, the 

September and March meetings, and 

comments submitted in response to our 

information request to prepare a final 

scientific document on Southern 

Resident killer whales (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. The population was 

considered in the context of the global 

taxon (i.e., all killer whales worldwide) 

and we found that Southern Resident 

killer whales did not meet the 

significance criteria for consideration as 

a DPS. The finding, along with 

supporting documentation, was 

published on July 1, 2002 (67 FR 

44133). The 2002 status review and 

other documents supporting the ‘‘not 

warranted’’ finding are available on the 

Internet (see Electronic Access). Because 

of the uncertainties regarding killer 

whale taxonomy (i.e., whether the killer 

whale should be considered as one 

species or as multiple species and/or 

subspecies), we announced that it 

would reconsider the taxonomy of killer 

whales within 4 years.

The scientific information evaluated 

during the ESA status review indicated 

that Southern Resident killer whales 

may be depleted under the Marine 

Mammal Protection Act (MMPA). We 

initiated consultation with the Marine 

Mammal Commission (Commission) in 

a letter dated June 25, 2002, and 

published an advance notice of 

proposed rulemaking (ANPR) on July 1, 

2002 (67 FR 44132), to request pertinent 

information regarding the status of the 

stock and potential conservation 

measures that may benefit these whales. 

After considering comments received in 

response to the ANPR and from the 

Commission, we published a proposed 

rule to designate the Southern Resident 

stock of killer whales as depleted (68 FR 

4747; January 30, 2003) and solicited 

comments on the proposal. Based on the 

best scientific information available, 

consultation with the Commission, and 

consideration of public comment, we 

determined that the Southern Resident 

stock of killer whales was depleted 

under the MMPA (68 FR 31980; May 29, 

2003) and announced our intention to 

prepare a Conservation Plan.

On December 18, 2002, 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, et al., v. 

Robert Lohn, et al., 296 F. Supp. 2d. 

1223 W.D. Wash. 2003). The court order 

held that ‘‘[w]hen the best available 

science indicates that the ’standard 

taxonomic distinctions’ are wrong . . . 

NMFS must rely on the best available 

science.’’

Although we announced in 2002 that 

the status of killer whales would be 

revisited in 4 years, the schedule for 

reevaluating Southern Resident killer 

76674 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

whales was expedited as a result of the 

court’s order. We reconvened a BRT in 

2004 to consider new scientific and 

commercial data available since 2002 

and update the status review for 

Southern Residents in accordance with 

that order. We announced the status 

review update and requested that 

interested parties submit pertinent 

information to assist us with the update 

(69 FR 9809, March 2, 2004). In 

addition, we co-sponsored a Cetacean 

Taxonomy workshop in 2004, which 

included a special session on killer 

whales. The papers and reports from the 

workshop were made available to the 

BRT.

In August 2004, we met with 

Washington State and Tribal comanagers to provide information on the 

status review update and receive 

comments. These comments were 

evaluated by the BRT, who then 

prepared a final status review document 

for Southern Resident killer whales 

(NMFS, 2004).

Biological Background

Killer whales are one of the most 

strikingly pigmented of all cetaceans, 

making field identification easy. Killer 

whales are black dorsally and white 

ventrally, with a conspicuous white 

oval patch located slightly above and 

behind the eye. A highly variable gray 

or white saddle is usually present 

behind the dorsal fin. Saddle shape 

varies among individuals, pods, and 

from one side to the other on a single 

animal. Sexual dimorphism occurs in 

body size, flipper size, and height of the 

dorsal fin. More detailed information 

regarding this species’ distribution, 

behavior, genetics, morphology, and 

physiology are contained in the BRT’s 

status review documents (NMFS, 2002, 

2004) and the Washington State Status 

Report for the Killer Whale (Wiles, 

2004).

Killer whales are classified as top 

predators in the food chain and the 

world’s most widely distributed marine 

mammal (Leatherwood and Dahlheim, 

1978; Heyning and Dahlheim, 1988). 

Although observed in tropical waters 

and the open sea, they are most 

abundant in coastal habitats and high 

latitudes. In the northeastern Pacific 

Ocean, killer whales occur in the 

eastern Bering Sea (Braham and 

Dahlheim, 1982) and are frequently 

observed near the Aleutian Islands 

(Scammon, 1874; Murie, 1959; Waite et 

al., 2001). They reportedly occur yearround in the waters of southeastern 

Alaska (Scheffer, 1967) and the 

intercoastal waterways of British 

Columbia and Washington State 

(Balcomb and Goebel, 1976; Bigg et al., 

1987; Osborne et al., 1988). There are 

occasional reports of killer whales along 

the coasts of Washington, Oregon, and 

California (Norris and Prescott, 1961; 

Fiscus and Niggol, 1965; Rice, 1968; 

Gilmore, 1976; Black et al., 1997; NMFS, 

2004), both coasts of Baja California 

(Dahlheim et al., 1982), the offshore 

tropical Pacific (Dahlheim et al., 1982), 

the Gulf of Panama, and the Galapagos 

Islands. In the western North Pacific, 

killer whales occur frequently along the 

Soviet coast in the Bering Sea, the Sea 

of Okhotsk, the Sea of Japan, and along 

the eastern side of Sakhalin and the 

Kuril Islands (Tomilin, 1957). There are 

numerous accounts of their occurrence 

off China (Wang, 1985) and Japan 

(Nishiwaki and Handa, 1958; Kasuya, 

1971; Ohsumi, 1975). Data from the 

central Pacific are scarce. They have 

been reported off Hawaii, but do not 

appear to be abundant in these waters 

(Tomich, 1986; Caretta et al., 2001).

The killer whale is the largest species 

within the family Delphinidae. Various 

scientific names have been assigned to 

the killer whale (Hershkovitz, 1966; 

Heyning and Dahlheim, 1988). These 

various names can be explained by 

sexual and age differences in the size of 

the dorsal fin, individual variations in 

color patterns, and the cosmopolitan 

distribution of the animals. The genus 

Orcinus is currently considered 

monotypic with geographical variation 

noted in size and pigmentation patterns. 

Two proposed Antarctic species, O. 

nanus (Mikhalev et al., 1981) and O. 

glacialis (Berzin and Vladimirov, 1982; 

Berzin and Vladimirov, 1983), both 

appear to refer to the same type of 

smaller individuals. However, because 

of significant uncertainties regarding the 

limited specimen data, these new taxa 

have not been widely accepted by the 

scientific community. New observations 

of color pattern, size, habitat and 

feeding ecology have led to the 

conclusion that there are three types of 

killer whales in Antarctica (Pitman and 

Ensor, 2003). Recent genetic 

investigations note marked differences 

between some forms of killer whale 

(Hoelzel and Dover, 1991; Hoelzel et al., 

1998; Barrett-Lennard, 2000; BarrettLennard and Ellis, 2001). Killer whale 

taxonomy was reviewed as part of the 

‘‘Workshop on Shortcomings of 

Cetacean Taxonomy in Relation to 

Needs of Conservation and 

Management’’ held on April 30 - May 2, 

2004 in La Jolla, California, and the 

results were published in a report 

(Reeves et. al., 2004).

Ecotypes of Killer Whales

Killer whales in the Eastern North 

Pacific region (which includes the 

petitioned whale pods) have been 

classified into three forms, or ecotypes, 

termed residents, transients, and 

offshore whales. Significant genetic 

differences occur among resident, 

transient, and offshore killer whales 

(Stevens et al., 1989; Hoelzel and Dover, 

1991; Hoelzel et al., 1998; BarrettLennard, 2000; Barrett-Lennard and 

Ellis, 2001; Hoelzel et al., 2002). The 

three forms also vary in morphology, 

ecology, and behavior. All of these 

characteristics play an important role in 

determining whether the monotypic 

species O. orca can be subdivided under 

the ESA.

Resident Killer Whales

Resident killer whales in the Eastern 

North Pacific are noticeably different 

from both the transient and offshore 

forms. The dorsal fin of resident whales 

is rounded at the tip and falcate (curved 

and tapering). Resident whales have a 

variety of saddle patch pigmentations 

with five different patterns recognized 

(Baird and Stacey, 1988). Resident 

whales occur in large, stable pods with 

membership ranging from 10 to 

approximately 60 whales. Their 

presence has been noted in the waters 

from California to Alaska. The primary 

prey of resident whales is fish. A recent 

summary of the differences between 

resident and transient forms is found in 

Baird (2000).

Resident killer whales in the North 

Pacific consist of the following groups: 

Southern, Northern, Southern Alaska 

(includes Southeast Alaska and Prince 

William Sound whales), western Alaska, 

and western North Pacific Residents.

Southern Residents: The Southern 

Resident killer whale assemblage 

contains three pods-- J pod, K pod, and 

L pod--and is considered a stock under 

the MMPA. Their range during the 

spring, summer, and fall includes the 

inland waterways of Puget Sound, Strait 

of Juan de Fuca, and Southern Georgia 

Strait. Their occurrence in the coastal 

waters off Oregon, Washington, 

Vancouver Island, and more recently off 

the coast of central California in the 

south and off the Queen Charlotte 

Islands to the north has been 

documented. Little is known about the 

winter movements and range of the 

Southern Resident stock. Southern 

Residents have not been seen to 

associate with other resident whales, 

and mitochondrial and nuclear genetic 

data suggest that Southern Residents 

interbreed with other killer whale 

populations rarely if at all (Hoelzel et 

al., 1998; Barrett-Lennard, 2000; BarrettLennard and Ellis, 2001).

Northern Residents: The Northern 

Resident killer whale assemblage 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76675

contains approximately 16 pods. They 

range from Georgia Strait (British 

Columbia) to Southeast Alaska (Ford et 

al., 2000; Dahlheim, 1997). On occasion 

they have been known to occur in Haro 

Strait (west of San Juan Island, 

Washington). Although some overlap in 

range occurs between the Northern and 

Southern Residents, no intermixing of 

pods has been noted. However, in 

Southeast Alaska, Northern Resident 

whales are seen in close proximity to 

Southern Alaska Residents (Dahlheim et 

al., 1997), and there may be limited gene 

flow between the two populations 

(Hoelzel et al., 1998; Barrett-Lennard, 

2000; Barrett-Lennard and Ellis, 2001).

Alaska Residents: There are two 

groups of Alaska Resident animals, 

Southern Alaska Residents and Western 

Alaska Residents. The resident whales 

of Southeast Alaska and Prince William 

Sound comprise the Southern Alaska 

Resident killer whale assemblage. At 

least 15 pods have been identified in 

these two regions. Resident killer 

whales photographed in Southeast 

Alaska travel frequently to Prince 

William Sound and intermix with all 

resident groups from this area 

(Dahlheim et al., 1997; Matkin and 

Saulitis, 1997). Prince William Sound 

Resident whales have not been seen in 

Southeast Alaska, but have been noted 

off Kodiak Island intermixing with 

other, yet unnamed, resident pods 

(Dahlheim, 1997; NMFS, 2004). Vessel 

surveys in the southeastern Bering Sea 

have provided preliminary estimates of 

approximately 400 killer whales (Waite 

et al., 2001) and preliminary counts, 

based on photo-identification, suggest a 

minimum of 800 individual resident 

whales inhabiting this region (NMFS, 

2004).

Western North Pacific Residents: The 

presence of resident killer whales has 

been documented along the coastline of 

Russia (NMFS, 2004). It is likely that 

resident killer whales also occur along 

the coastline of Japan, but additional 

information is required to confirm this 

hypothesis.

Transient Killer Whales

Transient whales occur throughout 

the Eastern North Pacific with a 

preference towards coastal waters. Their 

geographical range overlaps that of the 

resident and offshore whales. Individual 

transient killer whales have been 

documented to move great distances 

reflecting a large home range (Goley and 

Straley, 1994). There are several 

differences between transient and 

resident killer whales; these have most 

recently been summarized by Baird 

(2000). The dorsal fin of transient 

whales tends to be more erect (i.e., 

straighter at the tip) than those of 

resident and offshore whales. Saddle 

patch pigmentation of Transient killer 

whales is restricted to three patterns 

(Baird and Stacey, 1988). Pod structure 

is small (e.g., fewer than 10 whales) and 

dynamic in nature. The primary prey of 

transient killer whales is other marine 

mammals. Transient whales are not 

known to intermix with resident or 

offshore whales. Recent genetic 

investigations indicate that up to three 

genetically different groups of transient 

killer whales exist in the eastern North 

Pacific (the ‘‘west coast’’ Transients, the 

‘‘Gulf of Alaska Transients’’ and the 

AT1 pod) (Barrett-Lennard, 2000; 

Barrett-Lennard and Ellis, 2001).

Offshore Killer Whales

Offshore killer whales are similar to 

resident whales, but can be 

distinguished (i.e., their fins appear to 

be more rounded at the tip with 

multiple nicks on the trailing edge, 

smaller overall size, less sexual 

dimorphism), but these characteristics 

need to be further quantified. Offshore 

whales have been seen in considerably 

larger groups (up to 200 whales) than 

residents or transients have. They are 

known to range from central coastal 

Mexico to Alaska and occur in both 

coastal and offshore waters (300 miles 

off Washington State). While foraging, it 

is assumed that the main target is fish, 

but observations of feeding events are 

extremely limited. Offshore whales are 

not known to intermingle with resident 

or transient whales. Genetic analysis 

suggests that offshore whales are 

substantially reproductively isolated 

from other killer whale populations 

(Barrett-Lennard, 2000; Hoelzel et al., 

2004).

Consideration as a ‘‘Species’’ under the 

ESA

The ESA defines a 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.’’ Guidance on what constitutes 

a DPS is provided by the joint NMFSU.S. Fish and Wildlife Service (FWS) 

interagency policy on vertebrate 

populations (61 FR 4722; February 7, 

1996). To be considered a DPS, a 

population, or group of populations, 

must be ‘‘discrete’’ from other 

populations and ‘‘significant’’ to the 

taxon (species or subspecies) to which 

it belongs. A population segment of a 

vertebrate species may be considered 

discrete if:

(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 also 

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, we must then consider whether 

the discrete segment is ‘‘significant’’ to 

the taxon to which it belongs. Criteria 

that can be used to determine whether 

the discrete segment is significant 

include:

(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 the 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; and

(4) Evidence that the discrete 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics.

A population segment needs to satisfy 

only one of these criteria to be 

considered significant. Furthermore, the 

list of criteria is not exhaustive; other 

criteria may be used, as appropriate.

Killer Whale Taxonomy

Correctly identifying the killer whale 

taxon is critical because the criteria 

used to evaluate ‘‘significance’’ of a DPS 

are defined relative to the larger taxon 

to which it belongs. Uncertainty about 

the taxonomic status of killer whales 

posed a problem for the 2002 BRT. In 

particular, it noted that the current 

designation of one global species for 

killer whales was likely inaccurate 

because there was increasing evidence 

to suggest that additional species or 

subspecies of killer whales probably 

exist. The previous prevailing concept 

of a single species has recently evolved 

into a diversity of views that include the 

possibility of multiple species. Recent 

new observations and data on 

morphology and genetics of both the 

Antarctic and North Pacific killer 

whales have re-opened the question, 

and two divergent bodies of expert 

opinion have emerged. At the 2004 

Cetacean Taxonomy workshop, experts 

prepared cases for two taxonomic 

scenarios. Under one line of reasoning, 

killer whales are a single highly variable 

species, with locally differentiated 

76676 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

forms, or ecotypes, representing recently 

evolved and relatively ephemeral forms 

not deserving species status. According 

to the opposing body of opinion, 

congruence of several lines of evidence 

for the distinctness of sympatrically 

(i.e., same place, same time) occurring 

forms support multiple species.

In the North Pacific, the seasonally 

sympatric resident and transient killer 

whale forms show consistent differences 

in mitochondrial and nuclear genetic 

markers, coloration, acoustic calls, and 

foraging habits. The majority of experts 

participating in the killer whale working 

group at the Cetacean Taxonomy 

workshop believed that the resident and 

transient ecotypes in the North Pacific 

might be distinct species or subspecies.

The 2004 BRT reviewed new 

information and the competing lines of 

evidence cited during the Cetacean 

Taxonomy workshop and considered 

whether killer whales are a single 

species or multiple species. After 

discussion of this information, the BRT 

reached consensus that, although 

multiple species may exist and may be 

confirmed in the future, the present data 

do not adequately support recognition 

of any new species. In particular, the 

BRT concluded that, provisionally, 

North Pacific transients and residents 

should be considered as belonging to a 

single species.

The 2004 BRT next considered the 

question of whether North Pacific 

residents, transients and offshore 

whales likely belong to different 

subspecies, although current standard 

taxonomic classification does not 

include any named subspecies. A 

number of differences between residents 

and transients have been suggested to 

support subspecific separation between 

the two groups: (1) Residents and 

transients differ on average in external 

morphology, including dorsal-fin size 

and shape, saddle-patch shape, and 

pigmentation; (2) differences between 

the two ecotypes have been found in 

skull features, although the sample size 

is still small and uncontrolled for age 

and sex; (3) residents and transients are 

sympatric in the summer range, but no 

intermingling or interbreeding has ever 

been observed; (4) the two groups have 

markedly different feeding 

specializations and social organization; 

(5) the two ecotypes exhibit markedly 

different acoustic dialects and acoustic 

practices that may relate to differences 

in feeding ecology; (6) the two forms are 

genetically divergent at both 

mitochondrial DNA (mtDNA) and 

nuclear DNA markers, and the average 

level of divergence between the 

residents and transients is higher than 

the average level of divergence within 

populations of either group; and (7) 

residents and transients fall into two 

different global mtDNA clades. The BRT 

concluded that Southern Residents 

likely belong to a subspecies separate 

from that of transients.

The 2004 BRT agreed that if the 

Southern Residents belong to a 

subspecies separate from that of the 

transients, the subspecies would 

include the Southern Residents and the 

Northern Residents, as well as the 

resident killer whales of Southeast 

Alaska, Prince William Sound, Kodiak 

Island, the Bering Sea and Russia. In 

short, the subspecies would include all 

of the resident, fish-eating killer whales 

of the North Pacific. The rationale for 

this decision was that all of these groups 

are apparently fish-eating specialists, 

occupy relatively similar habitats, and 

appear to be genetically more closely 

related to each other than to sympatric 

transient populations. After considering 

the arguments for existence of 

subspecies and the conclusions of the 

Cetacean Taxonomy workshop, the BRT 

concluded that the taxon to use for 

determining a DPS under the ESA 

should be the North Pacific residents, an 

unnamed subspecies of O. orca. After 

considering whether the North Pacific 

offshore or eastern Tropical Pacific 

killer whales belonged to the same 

taxon as the North Pacific residents, the 

BRT concluded that they did not.

Determination of DPS

Discreteness

The first criterion for determining if a 

population or group is a DPS is that it 

meets the test for discreteness. Two 

types of genetic data for killer whales 

have proven useful for identifying DPS 

boundaries in other species: 

microsatellite (nuclear) DNA and 

mitochondrial DNA (mtDNA). The 

magnitude of the genetic differences 

between Southern and Northern 

Residents was about half that found 

between residents and transients and 

about twice that found between 

Northern Residents and Southern 

Alaska Residents. These differences 

indicate that the Southern Resident, 

Northern Resident, and Alaska Resident 

populations are reproductively isolated 

populations and that the isolation of 

Southern and Northern Residents from 

each other is greater than the isolation 

between Northern and Southern Alaska 

Residents. There may be some gene flow 

between the Northern Residents and 

Southern Alaska Residents (Hoelzel et 

al., 1998; Barrett-Lennard, 2000; BarrettLennard and Ellis, 2001).

Two mtDNA sequences have been 

found in North Pacific Resident killer 

whales. The Southern Residents have 

one sequence and the Northern 

Residents have another that differs by 

one DNA nucleotide. Southern Alaska 

Residents have both sequences. Both 

males and females inherit the mtDNA of 

their mother, so these data indicate that 

females from the Southern and Northern 

Resident populations have not been 

migrating between populations within 

at least the recent evolutionary history 

of these populations.

The understanding of killer whale 

population genetic structure has 

expanded considerably since the last 

status review in 2002. In particular, the 

mtDNA differentiation among eastern 

North Pacific resident, transient and 

offshore populations can now be seen in 

the context of variation worldwide. The 

most notable result from the new 

mtDNA data is the lack of strong 

mtDNA structure worldwide, suggesting 

that the current distribution of killer 

whales populations may be relatively 

young on an evolutionary scale (e.g., 

several hundred thousand years 

compared to the approximate 5 million 

year old age of the Orcinus genus and 

possibly associated with a population 

bottleneck followed by a worldwide 

expansion). With regard to identifying 

DPSs, one of the implications of the new 

data is that the relative degree of 

mtDNA divergence among populations 

is not necessarily a good predictor of the 

length of time that the populations have 

evolved independently. For example, 

animals with the ‘‘southern resident’’

haplotype have been found in 

populations from Washington (the 

Southern Residents), Alaska, Russia, 

Newfoundland and the United 

Kingdom. Evolutionarily, these 

populations are almost certainly more 

closely related to other geographically 

proximate populations than to each 

other (a hypothesis supported by the 

microsatellite data) and therefore, share 

a mtDNA haplotype purely by chance. 

Thus, it would be inappropriate to rely 

heavily on simple mtDNA divergence as 

a criterion for identifying a DPS, 

especially on a global scale. On a local 

scale, however, mtDNA remains useful 

for helping to identify populations, 

especially when combined with other 

types of information.

In addition to more mtDNA data, the 

amount of nuclear microsatellite data 

expanded greatly in the last 2 years, 

both in terms of numbers of whales and 

loci analyzed. Within the eastern North 

Pacific, both the mtDNA and 

microsatellite data remain consistent 

with a hypothesis of four to five resident 

populations, at least two to three 

transient populations and at least one 

offshore population. The issue of 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76677

whether any contemporary gene flow 

occurs among eastern North Pacific 

populations remains unresolved, but the 

microsatellite data are consistent with 

low levels of gene flow (at most a few 

mating events among populations per 

generation). Despite some uncertainty 

about the evolutionary history that 

produced the current patterns of 

variation, both the mtDNA and the 

microsatellite data indicate a high 

degree of contemporary reproductive 

isolation among eastern North Pacific 

killer whale populations.

The BRT concluded that Southern 

Residents are an independent 

population that is discrete from other 

North Pacific resident killer whale 

populations. Southern Resident whales 

have a core summer range that is 

spatially separate from other North 

Pacific Resident whales including their 

closest neighbor, the Northern 

Residents. In addition, Southern 

Residents exhibit behaviors unique with 

respect to other North Pacific Residents. 

Southern Residents exhibit a distinct 

‘‘greeting’’ behavior. They have not been 

observed using rubbing beaches or 

taking fish from longline gear, which 

appear to be unique to other North 

Pacific Resident Populations. Based on 

range, demography, behavior, and 

genetics, the BRT determined that 

Southern Residents meet the criterion 

for ‘‘discreteness’’ under the DPS policy.

Significance

The second test for determining if a 

population is a DPS is its significance to 

the taxon to which it belongs. The BRT 

discussed at length the significance of 

the Southern Residents with respect to 

the North Pacific resident taxon. The 

BRT concluded that the Southern 

Residents are significant with regard to 

the North Pacific resident taxon and, 

therefore, should be considered a DPS. 

The arguments favoring significance 

were as follows:

Ecological setting. The Southern 

Residents appear to occupy an 

ecological setting distinct from the other 

North Pacific resident populations. In 

particular, the Southern Residents are 

the only North Pacific resident 

population to spend a substantial 

amount of time in the California Current 

ecosystem, an ocean habitat that differs 

considerably from the Alaskan Gyre 

occupied by the Alaska Residents and 

Northern Residents. There is some 

evidence of differences in prey 

utilization, with Southern and Northern 

Residents favoring chinook salmon and 

certain Alaska Residents also eating 

groundfish such as halibut and turbot.

Range. The BRT discussed data 

related to the Southern Residents’ year 

round and summer core ranges and 

concluded that loss of the Southern 

Residents would result in a significant 

gap in the range of the North Pacific 

resident taxon. In particular, the 

Southern Residents are the only North 

Pacific resident population to be sighted 

in the coastal areas off of California, 

Oregon and Washington and are the 

only population to regularly inhabit 

Puget Sound. Based on experience from 

other cetaceans, the BRT found little 

reason to believe that these areas would 

be repopulated by other North Pacific 

resident populations in the foreseeable 

future should the Southern Resident 

population become extinct.

This conclusion differs from that of 

the 2002 BRT for several reasons. New 

sightings of the Southern Residents in 

recent years have provided additional 

information on the amount of overlap in 

range between Southern Residents and 

other North Pacific resident 

populations. Also, the 2002 BRT 

considered transient, offshore, and other 

resident killer whales and their 

respective range overlap with Southern 

Resident killer whales when 

determining if the loss of Southern 

Resident would represent a significant 

gap in the range of the global taxon. The 

2004 BRT considered only the overlap 

with other North Pacific residents.

Genetic differentiation. The Southern 

Residents differ markedly from other 

North Pacific resident populations at 

both nuclear and mitochondrial genes. 

The Southern Residents also differ from 

other North Pacific resident populations 

in the frequency of certain saddle patch 

variants, a trait believed to have a 

genetic basis.

Behavioral and cultural diversity. The 

BRT noted that culture (knowledge 

passed through learning from one 

generation to the next) is likely to play 

an important role in the viability of 

killer whale populations. For example, 

the Southern Residents may have 

unique knowledge of the timing and 

location of salmon runs in the southern 

part of the North Pacific Residents’

range. The BRT also noted that there 

was some evidence that cultural 

traditions, such as greeting behavior, 

beach rubbing, and utilization of prey 

from longlines, differed among the 

resident populations.

Conclusions

The BRT concluded: (1) although 

multiple species of O. orca may exist 

and be confirmed in the future, there is 

currently insufficient evidence to 

describe any new species; and (2) 

provisionally the North Pacific 

Residents and transients should be 

considered to belong to one species; 

however, (3) there is sufficient 

information to indicate that there is 

likely a North Pacific Resident 

subspecies of O. orca. Given the District 

Court’s direction, the BRT considered 

this unnamed subspecies as the 

reference taxon for making a DPS 

determination and concluded that 

Southern Resident killer whales are 

discrete from other populations within 

the North Pacific Resident taxon and are 

significant to the North Pacific Resident 

taxon. The BRT also considered the 

hypothesis that the North Pacific 

Residents and offshores belong to the 

same subspecies, and concluded that 

Southern Residents would also meet the 

DPS criteria under this alternative 

taxonomic scenario.

The 2002 BRT had also explored the 

plausibility of various taxa and DPS 

scenarios, including Southern Residents 

as a DPS of a North Pacific Resident 

taxon. The 2002 BRT was almost evenly 

split on the question of whether the 

Southern Residents would be a DPS of 

a putative North Pacific Resident taxon 

and there was only minor support to the 

idea that Southern Residents would be 

a DPS of a taxon consisting of North 

Pacific residents and offshores. In 

contrast, the 2004 BRT was more 

confident that the Southern Residents 

should be considered a DPS under 

either scenario. The 2004 BRT discussed 

this increase in support for the Southern 

Residents as a DPS and attributed it 

primarily to the amount of new 

information that has been collected 

since 2002. For example, knowledge 

about worldwide patterns of genetic 

variation in killer whales has increased 

dramatically and has demonstrated that 

sharing of a similar mitochondrial DNA 

haplotype does not necessarily indicate 

a close evolutionary relationship 

between two populations. This is 

important because the offshores and 

Southern Residents are characterized by 

very similar mtDNA haplotypes, a factor 

that influenced the conclusions of the 

2002 BRT. In addition, the 2004 BRT 

was aware of recently collected 

information about the social structure, 

morphology, behavior and diet of 

offshore killer whales that was 

unavailable at the time of the 2002 

status review. This information tends to 

suggest that the offshores are more 

distinct from resident killer whales than 

was appreciated by the 2002 BRT. 

Finally, knowledge about ecological and 

behavioral diversity within killer 

whales has increased as a result of 

ongoing studies in British Columbia, 

Alaska, and the Russian Far East. The 

BRT generally concluded that this new 

information tended to suggest 

76678 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

substantial ecological differentiation 

between the Southern Residents and 

other populations.

Risk Assessment

Section 4(a)(1) of the ESA and the 

listing regulations (50 CFR part 424) set 

forth procedures for listing species. We 

must determine, through the regulatory 

process, if a species is endangered or 

threatened based upon any one or a 

combination of the following factors: (1) 

the present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) inadequacy of existing 

regulatory mechanisms; or (5) other 

natural or human-made factors affecting 

its continued existence. The 2004 BRT 

identified the factors that currently pose 

a risk for Southern Residents and 

discussed whether they might continue 

in the future. Concern remains about 

whether reduced quantity or quality of 

prey are affecting the Southern Resident 

population. In addition, levels of 

organochlorine contaminants are not 

declining appreciably and those of 

many ‘‘newly emerging’’ contaminants 

(e.g., brominated flame retardants) are 

increasing, so Southern Residents are 

likely at risk for serious chronic effects 

similar to those demonstrated for other 

marine mammal species (e.g., immune 

and reproductive system dysfunction). 

Other important risk factors that may 

continue to impact Southern Residents 

are oil spills, as well as noise and 

disturbance from vessel traffic.

The BRT conducted a Population 

Viability Analysis (PVA) to synthesize 

the potential biological consequences of 

a small population size, a slowly 

increasing or a declining population 

trend, and potential risk factors. The 

probability of the Southern Resident 

population going extinct was estimated 

using demographic information from the 

yearly census through 2003. Both the 

probability of extinction (defined as <1 

male or 1 female) as well as the 

probability of ‘‘quasi-extinction,’’

(defined as <10 males or 10 females) 

were determined, because the BRT 

believed that a population at the quasiextinction level would be ‘‘doomed’’ to 

extinction, even though literal 

extinction might still take decades for 

long-lived organisms, such as killer 

whales. Under the assumption that 

population growth rates in the future 

will accurately be predicted by the full 

29–year time series of available data (the 

most optimistic scenario considered), 

the model predicted the probability of 

Southern Residents becoming extinct 

was less than 0.1 to 3 percent in 100 

years and 2 to 42 percent in 300 years. 

If a quasi-extinction threshold was used 

instead of actual extinction, the 

predicted probability of meeting the 

threshold ranged from 1 to 15 percent in 

100 years and 4 to 68 percent in 300 

years. For both scenarios, the higher 

percentages in each range were 

associated with higher probability and 

magnitude of potential catastrophic 

mortality events (e.g., oil spills, disease 

outbreaks), as well as with a smaller 

carrying capacity (i.e., K = 100). When 

it was assumed that the population 

survival for a subset (the last 10 years) 

of all data available would best predict 

the future (the most pessimistic scenario 

considered), the analysis predicted a 

probability of extinction of 6 to 19 

percent in 100 years and 68 to 94 

percent in 300 years. If a quasiextinction threshold was used in lieu of 

actual demographic extinction, the 

predicted probability of meeting the 

threshold ranged from 39 to 67 percent 

in 100 years to 76 to 98 percent in 300 

years.

The PVA modeled combinations of a 

variety of parameters, some of which are 

unknown (e.g., carrying capacity and 

probability of catastrophic mortality), so 

multiple scenarios were analyzed in 

order to address the uncertainty of how 

these parameters would affect the 

probability that the population would 

go extinct. For the unknown parameters, 

a range of inputs were used in the 

model and this resulted in a range of 

results. The PVA produced some high 

probabilities for extinction, which were 

associated with the highest levels of 

potential catastrophic mortality, small 

carrying capacity, and when only a 

subset of available data was used. 

Scenarios incorporating the most 

optimistic parameters produced 

probabilities for extinction that were 

low, but not insignificant. There is no 

indication that the optimistic scenario is 

the most likely and therefore, the PVA 

extinction probabilities, even under the 

most optimistic conditions, indicate that 

Southern Resident killer whales are at 

risk.

The population dynamics of the 

Southern Residents describe a 

population that is at risk of extinction, 

due either to incremental small-scale 

impacts over time (e.g., reduced 

fecundity or subadult survivorship) or 

to a major catastrophe (e.g., disease 

outbreak or oil spill). Additionally, the 

small size of this killer whale DPS 

makes it potentially vulnerable to Allee 

effects (e.g., inbreeding depression) that 

could cause a major decline. 

Furthermore, the small number of 

breeding males, as well as possible 

reduced fecundity and subadult 

survivorship in the L-pod, may limit the 

population’s potential for rapid growth 

in the near future. Although the 

Southern Resident DPS has 

demonstrated the ability to recover from 

lower levels in the past and has shown 

an increasing trend over the last several 

years, the factors responsible for the 

decline are unclear, may still exist and 

may continue to persist, which would 

potentially preclude a substantial 

population increase.

Summary of Conclusions

Although multiple species of killer 

whales may exist and may be confirmed 

in the future, the 2004 BRT concluded 

that present data do not adequately 

support designation of any new species. 

Accordingly, North Pacific transients 

and residents should be considered to 

belong to a single species. The BRT 

agreed that Southern Residents likely 

belong to a subspecies that 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 the transients or 

offshores). Thus, the smallest taxon to 

which the Southern Residents belong 

would be resident killer whales in the 

North Pacific, an unnamed subspecies 

of O. orca. The BRT unanimously 

concluded that the Southern Residents 

are discrete from other North Pacific 

resident killer whale populations. The 

BRT also concluded that the Southern 

Residents are significant with respect to 

the North Pacific resident taxon and 

therefore should be considered a DPS. 

Factors that might pose a future risk to 

the Southern Resident population are: 

reduced quantity and quality of prey; 

persistent pollutants that could cause 

immune or reproductive system 

dysfunction; oil spills; and noise and 

disturbance from vessel traffic. The BRT 

conducted a PVA and the most 

optimistic model (29–year data set) 

predicted that the probability of 

Southern Residents becoming extinct 

was less than 0.1 to 3 percent in 100 

years and 2 to 42 percent in 300 years. 

Using the most pessimistic model (the 

last 10 years of data; quasi-extinction 

threshold), the probability of meeting 

the threshold ranged from 39 to 67 

percent in 100 years to 76 to 98 percent 

in 300 years. For both scenarios, the 

higher percentages in each range were 

associated with higher probability and 

magnitude of potential catastrophic 

mortality events (e.g., oil spills), as well 

as with a smaller carrying capacity (i.e., 

K = 100).

Overall, the BRT was concerned about 

the viability of the Southern Resident 

DPS and concluded that it is at risk of 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76679

extinction, because of either small-scale 

impacts over time (e.g., reduced 

fecundity or subadult survivorship) or a 

major catastrophe (e.g., disease outbreak 

or oil spill). Additionally, the small size 

of this killer whale DPS makes it 

potentially vulnerable to Allee effects 

(e.g., inbreeding depression).

Proposed Determination

The ESA defines an endangered 

species as any species in danger of 

extinction throughout all or a significant 

portion of its range, and a threatened 

species as any species likely to become 

an endangered species in the foreseeable 

future throughout all or a portion of its 

range (16 U.S.C. 1532 (6) and (20)). 

Section 4(b)(1) of the ESA requires that 

the listing determination be based solely 

on the best scientific and commercial 

data available, after conducting a review 

of the status of the species and after 

taking into account those efforts, if any, 

being made by any state or foreign 

nation to protect and conserve the 

species.

We have reviewed the petition, the 

reports of the BRT (NMFS, 2002, 2004), 

co-manager comments, Cetacean 

Taxonomy workshop papers and 

reports, and other available published 

and unpublished information, and we 

have consulted with species experts and 

other individuals familiar with killer 

whales. On the basis of the best 

available scientific and commercial 

information, the Southern Resident 

killer whale population meets the 

discreteness and significance criteria for 

a DPS. The genetic differences, spatial 

separation, unique behavior, and 

demography indicate that the Southern 

Resident killer whale population 

segment is discrete from other 

population segments. The gap in the 

range of the North Pacific Resident 

killer whale taxon that would occur if 

the Southern Resident killer whale 

population segment were to disappear is 

an important factor indicating that the 

Southern Resident killer whale 

population segment is significant with 

regard to the North Pacific Resident 

killer whale taxon, though other factors 

such as unique ecological setting, 

frequency of certain saddle patch 

variants, and greeting behavior lend 

further support.

This DPS is not presently in danger of 

extinction throughout all or a significant 

portion of its range. The small 

population increase in the past several 

years and population increases after 

previous declines, the presence of 

reproductive age males in each pod, 

several juvenile males reaching the age 

of sexual maturity in the next 2 to 6 

years and several juvenile females 

reaching reproductive age in a few years 

all indicate that the Southern Resident 

killer whale DPS is not presently in 

danger of extinction. Based on our 

evaluation of the best available 

scientific information, however, the 

Southern Resident killer whale DPS is 

threatened (likely to become a 

endangered in the foreseeable future 

throughout all or a significant portion of 

its range). This threatened 

determination is based on concerns 

regarding the population decline from 

1996–2001, the limited number of 

reproductive age males, the presence of 

females of reproductive age that are not 

having calves, and that the factors for 

the decline may continue to persist until 

more is known and actions are taken. 

The small population size of the 

Southern Residents and their socially 

cohesive nature makes them susceptible 

to catastrophic events such as oil spills 

and disease outbreaks. While the PVA 

included some high probabilities for 

extinction, particularly at the highest 

levels of catastrophic mortality, the PVA 

was conducted under the assumption 

that the Southern Residents are a closed 

population and also included Allee 

effects (e.g., inbreeding depression) for 

the small population. This is a 

conservative approach until the 

uncertainty regarding breeding patterns 

is more thoroughly understood. 

Therefore, NMFS proposes to list the 

Southern Resident killer whale DPS as 

threatened.

Conservation Measures

Conservation measures that may 

apply to listed species include 

conservation measures implemented by 

tribes, states, foreign nations, local 

governments, and private organizations. 

Also, Federal, tribal, state, and foreign 

nations’ recovery actions (16 U.S.C. 

1533(f)), Federal consultation 

requirements (16 U.S.C. 1536), and 

prohibitions on taking (16 U.S.C. 1538) 

constitute conservation measures. In 

addition, recognition through Federal 

government or state listing promotes 

public awareness and conservation 

actions by Federal, state, tribal 

governments, foreign nations, private 

organizations, and individuals.

The Southern Resident killer whale 

stock was designated as depleted under 

the MMPA, and a Conservation Plan is 

under development. In addition to the 

Conservation Planning process, NMFS 

has responded to requests for immediate 

conservation actions by implementing 

and supporting several programs. 

Working in partnerships with The 

Seattle Aquarium and The Whale 

Museum, we have supported education, 

outreach and stewardship activities to 

increase public awareness about the 

conservation status and needs of killer 

whales. To promote responsible viewing 

of killer whales, we have also provided 

support for additional hours of on-water 

stewardship through the Soundwatch 

program and enforcement presence 

through the Washington Department of 

Fish and Wildlife (WDFW).

On April 3, 2004, the Washington 

Fish and Wildlife Commission voted to 

add Washington State’s killer whale 

population to the list of the State’s 

endangered species. The State 

endangered designation is given to 

native Washington species that are 

seriously threatened with extinction 

throughout all or a significant portion of 

that range within the state (WAC 232–

12–297). The designation directs special 

management attention and priority to 

recover the species in Washington. 

WDFW is working with us on 

conservation strategies for killer whales.

Southern Resident killer whales are 

listed as endangered and Northern 

Residents are listed as threatened under 

Canada’s Species at Risk Act (SARA). 

Under SARA ‘‘endangered species’’

means a wildlife species that is facing 

imminent extirpation or extinction and 

‘‘threatened species’’ means a wildlife 

species that is likely to become an 

endangered species if nothing is done to 

reverse the factors leading to its 

extirpation or extinction. Canada’s 

Department of Fisheries and Oceans has 

convened a Recovery Team, which 

includes WDFW and NMFS staff 

members, and has begun developing a 

Recovery Plan for Southern and 

Northern Resident Whales under the 

SARA.

In addition to conservation and 

recovery planning efforts, our Northwest 

Fisheries Science Center (NWFSC) is 

engaged in an active research program 

for Southern Resident killer whales. 

Research that is currently being 

conducted is designed to fill identified 

data gaps and to improve our 

understanding of the risk factors that 

may be affecting the decline or recovery 

of the Southern Resident killer whales. 

The new information from research will 

be used to enhance our understanding 

of the risk factors affecting recovery 

thereby improving our ability to develop 

effective management measures. The 

Conservation Plan under the MMPA 

will contain both management measures 

based on the known current condition 

and research objectives from the 

NWFSC Long-Range Research Plan.

Prohibitions and Protective Measures

Section 9 of the ESA prohibits certain 

activities that directly or indirectly 

affect endangered species. These 

76680 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

prohibitions apply to all individuals, 

organizations and agencies subject to 

U.S. jurisdiction. Section 4(d) of the 

ESA directs the Secretary of Commerce 

(Secretary) to implement regulations ‘‘to 

provide for the conservation of 

[threatened] species,’’ that may include 

extending any or all of the prohibitions 

of section 9 to threatened species. 

Section 9(a)(1)(g) also prohibits 

violations of protective regulations for 

threatened species implemented under 

section 4(d). We will evaluate protective 

regulations pursuant to section 4(d) for 

Southern Resident killer whales and if 

necessary propose such regulations in a 

forthcoming rule that will be published 

in the Federal Register.

Sections 7(a)(2) and (4) of the ESA 

require Federal agencies to consult with 

us to ensure that activities they 

authorize, fund, or conduct are not 

likely to jeopardize the continued 

existence of a listed species or a species 

proposed for listing, or to adversely 

modify critical habitat or proposed 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

must enter into consultation with us.

Examples of Federal actions that may 

affect Southern Resident killer whales 

include coastal development, oil and 

gas development, seismic exploration, 

point and non-point source discharge of 

persistent contaminants, contaminated 

waste disposal, water quality standards, 

emerging chemical contaminant 

practices, vessel operations and noise 

level standards and fishery management 

practices.

Sections 10(a)(1)(A) and (B) of the 

ESA provide us with authority to grant 

exceptions to the ESA’s Section 9 ‘‘take’’

prohibitions. Section 10(a)(1)(A) 

scientific research and enhancement 

permits may be issued to entities 

(Federal and non-Federal) for scientific 

purposes or to enhance the propagation 

or survival of a listed species. The type 

of activities potentially requiring a 

section 10(a)(1)(A) research/

enhancement permit include scientific 

research that targets killer whales.

Section 10(a)(1)(B) incidental take 

permits may be issued to non-Federal 

entities performing activities that may 

incidentally take listed species, as long 

as the taking is incidental to, and not 

the purpose of, the carrying out of an 

otherwise lawful activity. The types of 

activities potentially requiring a section 

10(a)(1)(B) incidental take permit 

include scientific research, not targeting 

killer whales, that incidentally takes 

Southern Resident killer whales.

Our Policies on Endangered and 

Threatened Wildlife

On July 1, 1994, we and FWS 

published a series of policies regarding 

listings under the ESA, including a 

policy for peer review of scientific data 

(59 FR 34270) and a policy to identify, 

to the maximum extent possible, those 

activities that would or would not 

constitute a violation of section 9 of the 

ESA (59 FR 34272).

Role of Peer Review

The intent of the peer review policy 

is to ensure that listings are based on the 

best scientific and commercial data 

available. Prior to a final listing, we will 

solicit the expert opinions of three 

qualified specialists, concurrent with 

the public comment period. 

Independent specialists will be selected 

from the academic and scientific 

community, Federal and state agencies, 

and the private sector.

Identification of Those Activities That 

Would Constitute a Violation of Section 

9 of the ESA

The intent of this policy is to increase 

public awareness of the effect of our 

ESA listing on proposed and ongoing 

activities within the species’ range. We 

will identify, to the extent known at the 

time of the final rule, specific activities 

that will be considered likely to result 

in violation of section 9, as well as 

activities that will not be considered 

likely to result in violation. Activities 

that we believe could result in violation 

of section 9 prohibitions against ‘‘take’’

of the Southern Resident killer whale 

DPS include, but are not limited to, the 

following:

1. Coastal development that adversely 

affects Southern Resident killer whales 

(e.g., dredging, land clearing and 

grading, waste treatment).

2. Discharging or dumping toxic 

chemicals or other pollutants into areas 

used by Southern Resident killer 

whales.

3. Operating vessels in a manner that 

disrupts foraging, resting or care for 

young or results in noise levels that 

disrupt foraging, communication, 

resting or care for young.

4. Land/water use or fishing practices 

that result in reduced availability of 

prey species during periods when 

Southern Resident killer whales are 

present.

We believe, based on the best 

available information, the following 

actions will not result in a violation of 

Section 9:

1. Federally funded or approved 

projects for which ESA section 7 

consultation has been completed, and 

that are conducted in accordance with 

any terms and conditions we provide in 

an incidental take statement 

accompanying a biological opinion.

2. Takes of killer whales that we 

authorize pursuant to section 10 of the 

ESA.

These lists are not exhaustive. They 

are intended to provide some examples 

of the types of activities that we might 

or might not consider as constituting a 

take of Southern Resident killer whales 

under the ESA and its regulations.

Critical Habitat

Critical habitat is defined in section 3 

of the ESA (16 U.S.C. 1532(3)) as: (1) the 

specific areas within the geographical 

area occupied by the species, at the time 

it is listed in accordance with the ESA, 

in which are found those physical or 

biological features (a) essential to the 

conservation of the species and (b) 

which may require special management 

considerations or protection; and (2) 

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. 

‘‘Conservation’’ means the use of all 

methods and procedures needed to 

bring the species to the point at which 

listing under the ESA is no longer 

necessary.

Section 4(a)(3)(a) of the ESA (16 

U.S.C. 1533(a)(3)(A)) requires that, to 

the extent prudent and determinable, 

critical habitat be designated 

concurrently with the listing of a 

species. Designations of critical habitat 

must be based on the best scientific data 

available and must take into 

consideration the economic, national 

security, and other relevant impacts of 

specifying any particular area as critical 

habitat. Once critical habitat is 

designated, section 7 of the ESA 

requires Federal agencies to ensure that 

they do not fund, authorize or carry out 

any actions that are likely to destroy or 

adversely modify that habitat. This 

requirement is in addition to the section 

7 requirement that Federal agencies 

ensure that their actions do not 

jeopardize the continued existence of 

listed species.

We are currently in the informationgathering phase, compiling information 

to prepare a critical habitat proposal for 

Southern Resident killer whales. In 

previous Federal Register notices (69 

FR 9809, March 2, 2004; and 66 FR 

42499, August 13, 2001) we requested 

specific information on critical habitat 

and are again seeking public input and 

information to assist in gathering and 

analyzing the best available scientific 

data to support critical habitat 

Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 76681

designations. We will continue to meet 

with comanagers and other stakeholders 

to review this information and the 

overall designation process. We will 

then initiate rulemaking with the 

publication of a proposed designation of 

critical habitat, opening a period for 

public comment and the opportunity for 

public hearings.

Joint NMFS/FWS regulations for 

listing endangered and threatened 

species and designating critical habitat 

at section 50 CFR 424.12(b) state that 

the agency ‘‘shall consider those 

physical and biological features that are 

essential to the conservation of a given 

species and that may require special 

management considerations or 

protection (hereafter also referred to as 

’Essential Features’).’’ Pursuant to the 

regulations, such requirements include, 

but are not limited to the following: (1) 

space for individual and population 

growth, and for normal behavior; (2) 

food, water, air, light, minerals, or other 

nutritional or physiological 

requirements; (3) cover or shelter; (4) 

sites for breeding, reproduction, rearing 

of offspring, germination, or seed 

dispersal; and generally; (5) habitats that 

are protected from disturbance or are 

representative of the historic 

geographical and ecological 

distributions of a species. These 

regulations go on to emphasize that the 

agency shall focus on essential features 

within the specific areas considered for 

designation. These features ‘‘may 

include, but are not limited to, the 

following: spawning sites, feeding sites, 

seasonal wetland or dryland, water 

quality or quantity, geological 

formation, vegetation type, tide, and 

specific soil types.’’

Southern Resident killer whales 

reside for part of the year in the inland 

waterways of the Strait of Georgia, Strait 

of Juan de Fuca, and Puget Sound, 

particularly during the spring, summer 

and fall. Southern Residents visit 

coastal sites off Washington, Oregon and 

Vancouver Island and are known to 

travel as far south as central California 

and as far north as the Queen Charlotte 

Islands, British Columbia. Information 

on the range of Southern Residents 

along the outer Pacific Coast is limited, 

with only 27 confirmed coastal sightings 

over the last 20 years (NMFS, 2004). 

Killer whale habitat utilization is 

dynamic and does not appear to include 

use of specific breeding, nursing or 

resting areas. Foraging areas are 

dependent on variable temporal and 

spatial patterns of migratory prey 

species. These characteristics present 

challenges in identifying critical habitat 

for Southern Resident killer whales. The 

physical or biological features of their 

habitat include:

(1) Water quality to support growth 

and development;

(2) Prey species of sufficient quantity, 

quality and availability to support 

growth and development;

(3) Sound levels that do not exceed 

thresholds that inhibit communication 

or foraging activities or result in 

temporary or permanent hearing loss; 

and

(4) Safe passage conditions to support 

migration and foraging.

We are seeking information and 

comment on the appropriateness of 

considering these features for critical 

habitat designation.

The geographical area occupied by 

Southern Resident Killer Whales, where 

these features may be found, includes 

the Strait of Georgia, Strait of Juan de 

Fuca, Puget Sound, coastal Washington, 

Oregon and California. We are seeking 

comment and information on the 

specific areas within this geographical 

area where these features may be found.

Section 4(b)(2) of the ESA requires the 

Secretary to consider the ‘‘economic 

impact, impact on national security, and 

any other relevant impact,’’ of 

designating a particular area as critical 

habitat. For this, section 4(b)(2) 

authorizes the Secretary to exclude from 

a critical habitat designation those 

particular areas where the Secretary 

finds that the benefits of exclusion 

outweigh the benefits of designation, 

unless excluding that area will result in 

extinction of the species. As such, we 

seek information regarding the 

conservation benefits of designating 

areas in the Strait of Georgia, Strait of 

Juan de Fuca, Puget Sound, coastal 

Washington, Oregon and California as 

critical habitat. We also seek 

information on the economic benefit of 

excluding areas from the critical habitat 

designation, and the economic benefits 

of including an area as part of the 

critical habitat designation. In keeping 

with the guidance provided by the 

Office of Management and Budget 

(2000, 2003), we seek information that 

would allow it to monetize these effects 

to the extent possible, as well as 

information on qualitative impacts to 

economic values. We are also seeking 

information on impacts to national 

security and any other relevant impacts 

of designating critical habitat in these 

areas.

In accordance with the Secretarial 

Order on American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act, we 

will coordinate with Federally 

recognized American Indian Tribes on a 

Government-to-Government basis to 

determine how to make critical habitat 

assessments in areas that may impact 

Tribal trust resources. In accordance 

with our regulations at 50 CFR 424.13, 

we will consult as appropriate with 

affected states, interested persons and 

organizations, other affected Federal 

agencies, and, in cooperation with the 

Secretary of State, with the country or 

countries in which the species 

concerned are normally found or whose 

citizens harvest such species from the 

high seas. Data reviewed may include, 

but are not limited to, scientific or 

commercial publications, administrative 

reports, maps or other graphic materials, 

information received from experts, and 

comments from interested parties.

Public Comments

We exercised our best professional 

judgment in developing this proposal to 

list Southern Resident killer whales. To 

ensure that the final action resulting 

from this proposal will be as accurate 

and effective as possible, we are 

soliciting comments and suggestions 

from the public, other governmental 

agencies, the Government of Canada, the 

scientific community, industry, and any 

other interested parties. Comments are 

encouraged on this proposal as well as 

on the Status Review (See DATES and 

ADDRESSES) . Specifically, we are 

interested in information regarding: (1) 

the factors we considered in 

determining whether the Southern 

Resident killer whale population is 

significant to the North Pacific resident 

killer whale taxon; (2) biological or 

other relevant data concerning any 

threats to Southern Resident killer 

whales; (3) the range, distribution, and 

abundance of Southern Resident killer 

whales; (4) current or planned activities 

within the range of Southern Resident 

killer whales and their possible impact 

on Southern Resident killer whales; (5) 

efforts being made to protect Southern 

Resident killer whales; and (6) areas that 

may qualify as critical habitat.

We will review all public comments 

and any additional information 

regarding the status of Southern 

Resident killer whales and will 

complete a final determination within 1 

year of publication of this proposed 

rule, as required under the ESA. Final 

promulgation of the regulation(s) on this 

species will consider the comments and 

any additional information we receive, 

and such communications may lead to 

a final regulation that differs from this 

proposal.

76682 Federal Register / Vol. 69, No. 245 / Wednesday, December 22, 2004 / Proposed Rules 

Classification

National Environmental Policy Act

The 1982 amendments to the ESA, in 

section 4(b)(1)(A), restrict the 

information that may be considered 

when assessing species for listing. Based 

on this limitation of criteria for a listing 

decision and the opinion in Pacific 

Legal Foundation v. Andrus, 675 F. 

2d825 (6th Cir. 1981), We have 

concluded that ESA listing actions are 

not subject to the environmental 

assessment requirements of the National 

Environmental Policy Act (NEPA). (See 

NOAA Administrative Order 216–6.)

Executive Order 12866, Regulatory 

Flexibility Act and Paperwork 

Reduction Act

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this rule is 

exempt from review under Executive 

Order 12866. This proposed rule does 

not contain a collection-of-information 

requirement for the purposes of the 

Paperwork Reduction Act.

Federalism

In keeping with the intent of the 

Administration and Congress to provide 

continuing and meaningful dialogue on 

issues of mutual State and Federal 

interest, this proposed rule will be given 

to the relevant state agencies in each 

state in which the species is believed to 

occur, who will be invited to comment. 

We have conferred with the State of 

Washington in the course of assessing 

the status of Southern Resident killer 

whales, and considered, among other 

things, state and local conservation 

measures. Washington has listed killer 

whales under the Washington 

Administrative Code 232–12–014 and is 

coordinating with us to develop a State 

recovery plan. As the process continues, 

we intend to continue engaging in 

informal and formal contacts with 

Washington, and other affected local or 

regional entities, giving careful 

consideration to all written and oral 

comments received. We also intend to 

consult with appropriate elected 

officials in the establishment of a final 

rule.

List of Subjects in 50 CFR Part 223

Endangered and threatened species, 

exports, imports, transportation.

Dated: December 15, 2004.

Rebecca Lent,

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service.

For the reasons set out in the 

preamble, 50 CFR part 223 is proposed 

to be amended as follows:

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES

1. The authority citation for part 223 

continues to read as follows:

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq.

2. In § 223.102, paragraph (c), add the 

following to the List of Threatened 

Marine and Anadromous Species, in 

alphabetical order under MARINE 

MAMMALS:

§ 223.102 Enumeration of threatened 

marine and anadromous species.

* * * * *

(c) Marine Mammals.

* * * * *

Killer whale (Orcinus orca), Southern 

Resident population (DPS), which 

consists of whales from J, K and L pods.

* * * * *

[FR Doc. 04–27929 Filed 12–21–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 679

[Docket No. 041126332–4332–01; I.D. 

112204A]

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands; 2005 and 2006 

Proposed Harvest Specifications for 

Groundfish; Correction

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; correction.

SUMMARY: This document corrects a 

proposed rule to implement 2005 and 

2006 harvest specifications and 

prohibited species catch (PSC) 

allowances for the groundfish fishery of 

the Bering Sea and Aleutian Islands 

management area (BSAI). This 

document corrects errors in Table 8 to 

the proposed specifications.

DATES: Comments must be received by 

January 7, 2005.

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Lori Durall. Comments may be 

submitted by:

• Mail to P.O. Box 21668, Juneau, AK 

99802;

• Hand Delivery to the Federal 

Building, 709 West 9th Street, Room 

420A, Juneau, AK;

• E-mail to 

2005AKgroundfish.tacspecs@noaa.gov

and include in the subject line of the email comments the document identifier: 

2005 Proposed Specifications. E-mail 

comments, with or without attachments, 

are limited to 5 megabytes;

• FAX to 907–586–7557; or

• Webform at the Federal 

eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions at that site for submitting 

comments.

Copies of the draft Environmental 

Assessment/Initial Regulatory 

Flexibility Analysis (EA/IRFA) prepared 

for this action are available from NMFS 

at the addresses above or from the 

Alaska Region website at 

www.fakr.noaa.gov. Copies of the final 

2003 Stock Assessment and Fishery 

Evaluation (SAFE) report for the 

groundfish resources of the BSAI, dated 

November 2003, are available from the 

North Pacific Fishery Management 

Council (Council), West 4th Avenue, 

Suite 306, Anchorage, AK 99510–2252 

(907–271–2809), or from its website at 

www.fakr.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

Mary Furuness, 907–586–7228, or email at mary.furuness@noaa.gov.

SUPPLEMENTARY INFORMATION: NMFS 

proposed 2005 and 2006 harvest 

specifications and PSC allowances for 

the groundfish fishery of the BSAI on 

December 8, 2004 (69 FR 70974). That 

rule lists proposed pollock allocations 

to the seven inshore catcher vessel 

pollock cooperatives. Allocations in the 

proposed rule reflect cooperative 

applications for 2005 that are due to 

NMFS by December 1 of each year. All 

of the changes based on these 

applications were not reflected in the 

proposed Table 8. This document 

corrects the proposed rule by reflecting 

accurately all of the applications 

received for the 2005 year.

Correction

As published, proposed rule FR Doc. 

04–26952, December 8, 2004 (69 FR 

70974) contains an error and needs to be 

corrected. The corrected table adds 

member vessel PACIFIC CHALLENGER 

to the Peter Pad Fleet Cooperative and 

corrects data in columns 2, 3, 4, and 5 

for the Westward Fleet Cooperative. The 

corrected table reads as follows: