[Federal Register Volume 69, Number 245 (Wednesday, December 22, 2004)]
[Proposed Rules]
[Pages 76673-76682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27929]



[[Page 76673]]

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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.

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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 e-
Rulemaking Portal at http://www.regulations.gov or by sending an e-mail 
message to <a href="/cdn-cgi/l/email-protection#7e2d2c35290d0a1f0a0b0d5010090c3e10111f1f50191108"><span class="__cf_email__" data-cfemail="2774756c7054534653525409495055674948464609404851">[email protected]</span></a>.

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 co-managers, 
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

[[Page 76674]]

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 co-managers 
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 year-round 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; Barrett-Lennard 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; Barrett-Lennard, 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; Barrett-Lennard and 
Ellis, 2001).
    Northern Residents: The Northern Resident killer whale assemblage

[[Page 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 NMFS-U.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

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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; Barrett-Lennard 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

[[Page 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

[[Page 76678]]

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 quasi-extinction 
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 quasi-
extinction 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

[[Page 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

[[Page 76680]]

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 information-gathering 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

[[Page 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.

[[Page 76682]]

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 Sec.  223.102, paragraph (c), add the following to the List 
of Threatened Marine and Anadromous Species, in alphabetical order 
under MARINE MAMMALS:


Sec.  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


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