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[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Proposed Rules]
[Pages 100458-100462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29235]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No.: 241206-0316; RTID 0648-XR136]

Endangered and Threatened Fish and Wildlife; Description of the 
Western North Pacific Gray Whale Distinct Population Segment

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a revision to the Code of Federal Regulations 
(CFR) to update the description of the western North Pacific gray whale 
distinct population segment (DPS) under the Endangered Species Act 
(ESA) of 1973 in light of the best available science. The proposed 
revision is informed by our recently completed 5-year review and a DPS 
analysis prepared by a Status Review Team. We do not propose to change 
the ESA-listing status of western North Pacific gray whales, which are 
classified as an endangered species.

DATES: Comments and information regarding the proposed rule must be 
received by January 13, 2025.

ADDRESSES: A plain language summary of this proposed rule is available 
at https://www.regulations.gov/docket/NOAA-NMFS-2024-0095. You may 
submit comments, information, or data on this document, identified by 
docket number NOAA-NMFS-2024-0095, by any of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov. In 
the Search box, enter the above docket number for this document. Then, 
click on the Search icon. On the resulting web page, click the 
``Comment'' icon, complete the required fields, and enter or attach 
your comments.
     Mail: Submit written information to Megan Wallen, NMFS 
West Coast Region, 7600 Sand Point Way NE, Seattle, WA 98115.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).
    The western North Pacific gray whale DPS analysis (Weller et al. 
2023) and the 5-year review of the DPS (NMFS 2023) are both available 
to access on our website at https://www.fisheries.noaa.gov/resource/document/dps-analysis-western-north-pacific-gray-whales-under-esa and 
https://www.fisheries.noaa.gov/resource/document/western-north-pacific-dps-gray-whale-5-year-review, respectively.

FOR FURTHER INFORMATION CONTACT: Megan Wallen, Protected Resources 
Division, West Coast Region, 206-473-0812, [email protected], 
Adrienne Lohe, Endangered Species Division, Office of Protected 
Resources, 301-427-8442, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    NMFS and the U.S. Fish and Wildlife Service (FWS) jointly 
administer the ESA, with NMFS having jurisdiction over most marine 
species, and FWS having jurisdiction over terrestrial

[[Page 100459]]

species. NMFS and FWS make determinations as to the endangered or 
threatened status of species under ESA section 4 (16 U.S.C. 1533). The 
ESA defines ``species'' as including subspecies, and, for vertebrates 
only, ``distinct population segments'' (DPSs). 16 U.S.C. 1532(16). NMFS 
and FWS's joint Policy Regarding the Recognition of Distinct Vertebrate 
Population Segments Under the Endangered Species Act (61 FR 4722, 
February 7, 1996) (DPS Policy) clarifies the agencies' interpretation 
of the phrase ``distinct population segment'' for purposes of listing, 
delisting, and classifying species under the ESA.
    Regulations identifying the species under NMFS's jurisdiction that 
are listed as threatened or endangered are published at 50 CFR 223.102 
(threatened species) and 50 CFR 224.101 (endangered species). The FWS 
maintains master lists of all threatened and endangered species, i.e., 
species under both NMFS's jurisdiction and species under FWS' 
jurisdiction, at 50 CFR 17.11 (threatened and endangered animals) and 
50 CFR 17.12 (threatened and endangered plants). The ESA requires NMFS 
and FWS to review the status of each listed species at least once every 
5 years to determine whether the listing remains accurate (16 U.S.C. 
1533(c)(2)). Recently, we completed a 5-year review of the status of 
the western North Pacific (WNP) DPS of gray whales (NMFS 2023). Because 
WNP gray whales were listed as a DPS prior to NMFS and FWS's issuance 
of the DPS Policy, and because new information pertinent to gray whale 
stock structure had become available, NMFS also convened a Status 
Review Team (SRT) composed of NMFS scientists with relevant expertise 
to evaluate WNP gray whale classification in light of the 1996 DPS 
Policy. The SRT's full analysis and conclusions are provided in Weller 
et al. (2023, see ADDRESSES) and summarized in this proposed rule.
    WNP gray whales were originally listed in 1970, when NMFS listed 
the entire Pacific Ocean population of gray whales as an endangered 
species (35 FR 18309, December 2, 1970). In 1993, NMFS determined that 
the eastern North Pacific (ENP) gray whale population had recovered to 
pre-exploitation levels and should be delisted (58 FR 3121, January 7, 
1993). ENP gray whales are those that migrate between wintering areas 
in Baja California, Mexico, and summer feeding areas in the Bering and 
Chukchi Seas, except for a small subset of whales that summer and feed 
along the Pacific coast between Kodiak Island, Alaska and northern 
California (Carretta et al. 2023). NMFS also determined that there was 
a geographically separate WNP gray whale population, which had not 
recovered and should remain classified as ``endangered.'' The WNP gray 
whale DPS is currently listed as ``endangered,'' and is described in 
the CFR as ``western North Pacific (Korean) gray whales'' (50 CFR 
224.101(h)). There is no designated critical habitat for WNP gray 
whales.
    Since WNP gray whales were first listed as a DPS in 1993, new 
information has been developed about the species' migratory patterns 
and range, including information demonstrating that some WNP gray 
whales transit the Pacific Ocean and overlap with part of the ENP gray 
whale migration. However, genetic, ecological, ranging, and behavioral 
differences exist supporting designation of the ENP and WNP as separate 
species under the ESA (Weller et al. 2023). The SRT was asked to assess 
whether the description of the WNP gray whale DPS as currently listed 
remains accurate in light of the best currently available science. The 
SRT was also tasked with evaluating whether WNP gray whales meet the 
criteria for designation as a DPS under our DPS Policy. The SRT found 
that within the WNP, three gray whale units met the DPS policy criteria 
of discreteness and significance: (1) a unit comprising gray whales 
that spend their entire lives in the WNP, (2) a unit comprising gray 
whales that feed in the WNP in the summer and fall and migrate to the 
ENP in the winter, and (3) a unit including both (1) and (2) combined 
as a single unit.
    Under the DPS Policy, two criteria are considered when determining 
whether a vertebrate population segment qualifies as a DPS: (1) the 
discreteness of the of the population segment in relation to the 
remainder of the species to which it belongs; and (2) the significance 
of the population segment to the species to which it belongs (61 FR 
4722, February 7, 1996). Both criteria must be met in order for a 
population segment to be considered a DPS. A population segment may be 
considered discrete if it is markedly separated from other populations 
of the same taxon as a consequence of physical, physiological, 
ecological, or behavioral factors; or if it is delimited by 
international governmental boundaries within which differences in 
control of exploitation, management of habitat, conservation status, or 
regulatory mechanisms exist. Genetic differences between the population 
segments being considered may be used to evaluate discreteness.
    The SRT concluded that each of the three units of gray whales 
within the WNP being evaluated were markedly separate from (a) one 
another (for the WNP-only and WNP-ENP units) and (b) ENP gray whales 
(for all three units) as a result of behavioral and ecological factors. 
These include different migratory routes, strong matrilineal site 
fidelity to WNP feeding grounds, and use of different biogeographical 
realms for all or part of their life cycle. The WNP-only unit shows 
seasonal movements restricted to the WNP, where they migrate through 
and overwinter in areas where the bottom topography is characterized by 
a broad continental shelf. In contrast, the WNP-ENP unit and the ENP 
whales are observed in ENP waters, where the continental shelf is 
generally narrow with deeper water found close to shore, during the 
winter or early spring months (e.g., wintering lagoons in Mexico or 
along the U.S. and Canadian west coast). Both the WNP-only and the WNP-
ENP units (and thus the combined WNP-only + WNP-ENP unit) show 
matrilineal site fidelity to the Sakhalin feeding ground in the WNP, 
which results in patterns of differential habitat (or biogeographical 
realm) use when any of these units are compared to the ENP whales that 
use feeding grounds in the Arctic and/or the temperate North Pacific. 
In total, these factors provide strong evidence for behavioral 
separation between the three WNP units, supporting the discreteness of 
the three units. In addition, there is some evidence for whales 
primarily breeding within their unit based on genetic differentiation 
and/or the known timing of reproduction and migration (Weller et al. 
2023). Nuclear genetic differentiation supports separation of the 
combined WNP-only + WNP-ENP unit, as well as the WNP-ENP unit alone, 
from the broader ENP gray whale population, suggesting a lack of 
substantial interbreeding between either of these two WNP units and the 
ENP gray whale population. Additionally, while mating behavior has been 
observed on the wintering grounds, migration route, and feeding 
grounds, the primary mating period is estimated to occur between late 
November and mid-December, when gray whales would typically be at the 
start of their migration from feeding to wintering areas. Given that 
the WNP-only and WNP-ENP whales use different migratory routes and 
wintering grounds, and the WNP-ENP whales would likely still be west of 
the main ENP migratory corridor, spatial overlap between the WNP-only 
and WNP-ENP units or between either of those units (and thus the 
combined unit) and the ENP whales would likely be minimal during this

[[Page 100460]]

time period. Therefore, the evidence is consistent with a lack of 
substantial interbreeding with another unit, supporting the 
discreteness of the three WNP units. NMFS finds that the evidence 
presented by the SRT described here supports the discreteness of the 
three WNP units under the DPS policy.
    If a population segment is considered discrete, its biological and 
ecological significance is then evaluated in terms of the importance of 
the population segment to the taxon to which it belongs. Some of the 
considerations that can be used to determine a discrete population 
segment's significance to the taxon as a whole include: (1) persistence 
of the population segment in an unusual or unique ecological setting; 
(2) evidence that loss of the population segment would result in a 
significant gap in the range of the taxon; and (3) evidence that the 
population segment differs markedly from other populations of the 
species in its genetic characteristics. After considering the best 
available information, the SRT concluded that each of the three WNP 
units is significant to the taxon largely as a result of two factors: 
(1) that loss of the unit would result in a significant gap in the 
range of the species and (2) marked differences in biological and 
ecological factors, which include differences in behavioral or cultural 
diversity of each unit (Weller et al. 2023). Given the differences 
between the three WNP units in their geographic range and migration 
patterns, the SRT concluded that the loss of any of the three units 
would result in a significant gap in the range of the taxon. In 
particular, if the WNP-only unit were extirpated, the western migratory 
routes and wintering ground would presumably no longer be occupied by 
the taxon, leading to the loss of a substantial portion of the range of 
North Pacific gray whales. While these areas are currently used by a 
relatively small fraction of the gray whales in the North Pacific, 
evidence suggests these regions historically supported much larger 
numbers of gray whales. While the range of the WNP-ENP unit overlaps in 
part with that of ENP whales, they represent a large proportion of the 
whales that feed in the WNP and thus their loss would result in a 
substantial decline in the number of whales using western Pacific 
feeding areas and an increased risk of loss of gray whales in this part 
of the range. With the loss of the combined unit, gray whales would be 
limited to ENP waters and the Arctic feeding grounds with no presence 
in the entire WNP region. Of the three WNP units, the combined unit had 
the strongest support for significance, because the full range of all 
WNP gray whales would be lost with the loss of the combined unit.
    The SRT also found strong evidence of significance of each of the 
three units based on evidence of behavioral differences relating to 
their differential migration patterns. These differences result in 
variation in bioenergetic costs, predation pressure, and exposure to 
anthropogenic risks among units and may have led to the development of 
unique adaptations among the WNP-only and WNP-ENP units when compared 
to each other and to ENP gray whales. Energy requirements are estimated 
to be greater for whales in the WNP-only and WNP-ENP units than for ENP 
gray whales (migrating between Mexico and the Arctic feeding grounds) 
due to the longer migration distance of WNP-ENP whales and higher 
metabolic costs for overwintering in the WNP. Additionally, while all 
units are known targets for killer whale attacks, gray whales 
identified off Sakhalin Island have the highest reported prevalence of 
killer whale-associated scars in a baleen whale population, with gray 
whales in the ENP showing a lower prevalence of killer whale scars, 
suggesting strong differences in predation pressure. Gray whales do not 
occupy any other ocean basin, so gray whales in the WNP are likely 
important to the resiliency, redundancy, and representation of the 
species as a whole, particularly as this is an area predicted to change 
dramatically due to climate change. Significance of the ecological 
setting and genetic differentiation received less support due to 
uncertainty and a lack of applicable data. After reviewing the best 
available information and conclusions of the SRT, we agree that each of 
the three population segments meets the significance criterion of the 
DPS policy.
    Given the outcome of their analysis, the SRT agreed that there are 
two mutually exclusive options for recommending a DPS listing that 
include: (1) a Separate Option where the WNP-only unit and the WNP-ENP 
unit are separate DPSs, or (2) a Combined Option where the WNP-only 
unit and WNP-ENP unit are combined into a single unit (i.e., WNP-only + 
WNP-ENP unit) and considered one DPS (Weller et al. 2023). The SRT 
recommended the second option of designating a single unit, given the 
challenges with identifying and evaluating the status of and managing 
the otherwise separate units of gray whales under the ESA, such as 
estimating abundance and trends, survival, and evaluating recovery 
(Weller et al. 2023). The DPS composition as recommended by the SRT 
includes WNP whales that spend their entire life in the WNP and those 
that feed in the WNP in the summer and fall and migrate to the ENP in 
the winter. The SRT concluded that ``the most practicable means of 
obtaining positive management outcomes is to combine the units into a 
single DPS,'' given the challenges mentioned above (Weller et al. 
2023). Based on the recommendations of the SRT, and the lines of 
evidence leading to the combined unit meeting the DPS criteria, NMFS 
has determined that WNP gray whales should be defined as ``gray whales 
that reside or feed in the western North Pacific in the waters of 
Vietnam, China, Japan, Korea (Republic of Korea and/or Democratic 
People's Republic of Korea), or the Russian Far East, including 
southern and southeastern Kamchatka.'' Under that definition, whales 
that have different wintering ground affiliations would be considered 
part of the same DPS, with members of the DPS spending summers in the 
WNP (off Sakhalin Island and southeastern Kamchatka Peninsula).
    Our 5-year review of the western North Pacific gray whale assessed 
the status of the DPS (using the DPS definition recommended by the SRT) 
and concluded in a recommendation that the DPS remain classified as 
endangered (see NMFS 2023 for detailed assessment). Therefore, we are 
not proposing to reclassify the DPS.
    As a result of the 5-year review and recommendations from the SRT 
regarding the DPS description, we conclude that the description of the 
listed entity should be updated in NMFS' list and FWS's master list. 
This proposed revision reflects an effort to more accurately represent 
the WNP gray whale DPS based on the best available science. We 
summarize the proposed revision below and provide the full text of the 
proposed updates to the listed species description at 50 CFR part 224 
in the regulatory text at the end of this Federal Register document. 
All public comments on this proposed revision will be considered prior 
to issuing any final rule.

Endangered Species at 50 CFR 224.101

Revision to Endangered Species Description

    Below we summarize the proposed revision to the description of our 
endangered species listed in 50 CFR 224.101. Based on our recently 
completed DPS analysis and 5-year review of the status of the western 
North Pacific DPS of gray whales, the description of the endangered 
species

[[Page 100461]]

should be revised to account for more information on the population 
since its listing in 1994 (59 FR 31094, June 16, 1994). These changes 
do not constitute a listing or delisting of the DPS, but simply a 
revision to reflect a more accurate description of the listed entity.
    We propose to revise the description of the listed entity to read: 
``Gray whales that reside or feed in the western North Pacific in the 
waters of Vietnam, China, Japan, Korea (Republic of Korea and/or 
Democratic People's Republic of Korea), or the Russian Far East, 
including southern and southeastern Kamchatka''. The change proposed 
for this DPS is to remove the word ``Korean'' from the description 
which doesn't fully capture the geographic area occupied by the DPS.

References

    Copies of previous Federal Register documents and related reference 
materials are available on the internet at https://www.fisheries.noaa.gov/species/gray-whale/conservation-management, or 
upon request (see FOR FURTHER INFORMATION CONTACT section).

Classification

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 proposed rule is exempt from review under Executive 
Order (E.O.) 12866. This proposed rule does not contain a collection of 
information requirement for the purposes of the Paperwork Reduction 
Act.

Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule does not have significant federalism effects and that a federalism 
assessment is not required. 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 shared with the relevant State agencies.

National Environmental Policy Act of 1969 (NEPA)

    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, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions.

Government-to-Government Relationship With Tribes

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian Tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments or the Federal 
Government must provide the funds necessary to pay the direct 
compliance costs incurred by the Tribal governments. This proposed rule 
does not impose substantial direct compliance costs on Indian Tribal 
governments or communities. Accordingly, the requirements of section 
3(b) of E.O. 13084 do not apply to this rulemaking. Nonetheless, given 
the recent decision to waive the MMPA moratorium on taking ENP gray 
whales to allow the Makah Indian Tribe to conduct a limited ceremonial 
and subsistence hunt (89 FR 51600, June 18, 2024), we notified the 
Makah Tribe about the proposed changes and provided the opportunity for 
comments or concerns. We will continue to inform potentially affected 
Tribal governments, solicit their input, and coordinate on future 
management actions pertaining to western North Pacific gray whales.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

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

    Dated: December 9, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 224 as follows:

PART 224--ENDANGERED MARINE AND ANADRAMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
2. In Sec.  224.101, amend the table in paragraph (h) by revising the 
entry for ``Whale, gray (Western North Pacific DPS)'' to read as 
follows:

Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

[[Page 100462]]

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                                Species \1\
---------------------------------------------------------------------------  Citation(s) for   Critical    ESA
                                                            Description of       listing       habitat    rules
         Common name                 Scientific name        listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Whale, gray (Western North     Eschrichtius robustus.....  Gray whales      35 FR 8491, June         NA       NA
 Pacific DPS).                                              that reside or   2, 1970; 59 FR
                                                            feed in the      31094, June 16,
                                                            western North    1994; [Insert
                                                            Pacific in the   Federal
                                                            waters of        Register page
                                                            Vietnam,         where the
                                                            China, Japan,    document
                                                            Korea            begins], [date
                                                            (Republic of     of publication
                                                            Korea and/or     when published
                                                            Democratic       as a final
                                                            People's         rule].
                                                            Republic of
                                                            Korea), or the
                                                            Russian Far
                                                            East,
                                                            including
                                                            southern and
                                                            southeastern
                                                            Kamchatka.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

[FR Doc. 2024-29235 Filed 12-11-24; 8:45 am]
BILLING CODE 3510-22-P
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