[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Proposed Rules]
[Pages 32305-32310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15059]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 010522135-1135-01; I.D. 041601B]
RIN 0648-XA70


Endangered and Threatened Wildlife and Plants: 90-Day Finding for 
a Petition To List Eastern North Pacific Gray Whales as Threatened or 
Endangered Under the Endangered Species Act (ESA)

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

ACTION: Notification of 90-day petition finding.

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SUMMARY: NMFS received a petition to list Eastern North Pacific gray 
whales (Eschrichtius robustus) as threatened or endangered under the 
ESA. NMFS finds that the petition does not present substantial 
scientific or commercial information to warrant the petitioned action.

DATES: This petition finding was made on May 21, 2001.

ADDRESSES: Copies of the petition may be obtained by writing to Chief, 
Marine Mammal Conservation Division, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Dr. Thomas Eagle at (301) 713-2322, 
ext. 105, e-mail <a href="/cdn-cgi/l/email-protection#93e7fcfebdf6f2f4fff6d3fdfcf2f2bdf4fce5"><span class="__cf_email__" data-cfemail="2b5f4446054e4a4c474e6b45444a4a054c445d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    Section 4 (b)(3) of the ESA contains provisions concerning 
petitions from interested persons requesting the Secretary of Commerce 
(Secretary) to list species under the ESA. Section 4(b)(3)(A) requires 
that, to the maximum extent practicable, within 90 days after receiving 
such a petition, the Secretary make a finding whether the petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted. NMFS' regulations define 
``substantial information'' as the amount of information that would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted (see 50 CFR 424.14). Section 424.14(b)(2) of 
these regulations contains factors the Secretary considers in 
evaluating a petitioned action.
    NMFS received a petition on March 28, 2001, from D.J. Schubert 
(Petitioner), on behalf of Australians for Animals, The Fund for 
Animals, and ``several other organizations,'' to list the Eastern North 
Pacific stock of gray whales as threatened or endangered under the ESA. 
Petitioner claims that listing the stock as threatened or endangered is 
necessary to protect the stock or its habitat from substantial threats. 
These suggested threats include an apparent decline in benthic 
amphipods (the gray whale's primary food supply) and a lack of adequate 
regulatory mechanisms to protect the gray whale and its habitat. 
Petitioner claims that threats to amphipods are caused by direct, 
indirect and cumulative impacts of global warming and El Nino-Southern 
Oscillation (ENSO) events, the destruction of benthic amphipods and 
their habitat by bottom trawling, and contaminant impacts to amphipod 
survival and production. In light of the suggested threats to its food 
supply and inadequacy of regulatory mechanisms, Petitioner also claims 
that gray whales are threatened by aboriginal harvests, documented and 
undocumented mortality, oil and gas exploration, and other impacts.

Gray Whales and the ESA

    Prior to enactment of the ESA of 1973, the U.S. Fish and Wildlife 
Service (FWS) included gray whales (among several genera of baleen 
whales) on its 1970 list of endangered species (35 FR 8491, June 2, 
1970). This list was compiled from information submitted by 
international conservation organizations, foreign fish and wildlife 
agencies, individual scientists, and trade sources. The endangered 
species list was appended to regulations that established conservation 
measures for endangered species through general restrictions on 
importation of listed species.
    NMFS completed its first status review of gray whales in 1984 and 
concluded that the stock was not in danger of extinction. That status 
review recommended a change in the status of

[[Page 32306]]

the Eastern North Pacific stock from endangered to threatened (49 FR 
44774, November 9, 1984).
    NMFS began a status review of certain listed species, including 
gray whales, in 1990 and solicited information from the public (55 FR 
164, January 3, 1990). While the results of the status review were 
being prepared as a report and recommendation, the Northwest Indian 
Fisheries Commission and others, on March 7, 1991, petitioned NMFS to 
remove the eastern stock of gray whales from the list of endangered 
species and, thus, from protections under the ESA. A formal report of 
the status review was completed and made available to the public on 
June 27, 1991 (56 FR 29471). NMFS completed and solicited comments on a 
proposed rule to delist the Eastern North Pacific stock of gray whales 
on November 22, 1991 (56 FR 58869).
    On January 7, 1993 (58 FR 3121), NMFS announced its final 
determination that the Eastern North Pacific stock of gray whales was 
no longer in danger of extinction and that it was not likely to become 
endangered in the foreseeable future. NMFS concluded that the stock 
should be removed from the list of endangered species. NMFS forwarded 
that determination to FWS. As a result of NMFS' determination, FWS 
removed Eastern North Pacific gray whales from the list of endangered 
species on June 16, 1994 (59 FR 31094).
    In its notice of determination that Eastern North Pacific gray 
whales were no longer endangered or threatened, NMFS noted that the 
stock was estimated to be between 60 and 90 percent of its carrying 
capacity. Furthermore, NMFS addressed the impact of human activities 
within the range of the gray whale and concluded ``...that individual 
and cumulative impacts, while they have the potential to affect 
adversely the Eastern North Pacific gray whale stock, are not likely to 
jeopardize its continued existence.''
    As required by the ESA, NMFS conducted a status review 5 years 
after delisting Eastern North Pacific gray whales and convened a 
workshop on March 16-17, 1999, in Seattle, WA. The participants at the 
workshop reviewed the available information on the status of the gray 
whale stock and on factors that may affect the stock. The report of the 
workshop stated, ``The 28 invited participants determined that this 
stock was neither in danger of extinction, nor was it likely to become 
endangered within the foreseeable future, according to the determining 
factors in section 4(a)(1) of the ESA. Therefore, there was no apparent 
reason to reverse the decision to remove this stock from the [List of 
Endangered and Threatened Wildlife and Plants]''. The report added, 
``There was a consensus among the workshop participants that the 
Eastern North Pacific stock of gray whales should be monitored for an 
additional 5-year period (1999-2004), especially as this stock may be 
approaching its carrying capacity.''
    NMFS accepted the conclusions of the workshop participants and 
announced the availability of the workshop report on October 6, 1999 
(64 FR 54275). NMFS has, as recommended by the workshop participants, 
continued to conduct assessments of the gray whale stock.

The Current Petition

    Petitioner claims that the primary threats to the stock fall into 
three of the five listing factors found in section 4 (a) of the ESA. 
These are as follows:
    (1) The inadequacy of existing regulatory mechanisms,
    (2) The present or threatened destruction, modification, or 
curtailment of its habitat or range, and
    (3) Other natural or manmade factors affecting its continued 
existence.

Existing Legal Protections

    The petition suggests five principal legal requirements intended to 
protect the gray whale in the United States. These are:
    (1) The ESA;
    (2) The National Environmental Policy Act (NEPA);
    (3) The Washington State Endangered Species Act;
    (4) The Marine Mammal Protection Act (MMPA); and
    (5) The International Convention on the Regulation of Whaling.
    Three of the five are not directly applicable in this situation. 
The ESA does not apply because Eastern North Pacific gray whales are 
currently not listed under the ESA. NEPA does not directly apply 
because NEPA does not establish a regulatory program for wild living 
resources, such as the gray whale. NEPA does, however, provide indirect 
protections to gray whales because it requires Federal agencies to 
consider the direct, indirect, and cumulative impacts that major 
Federal actions have on the environment. The Washington State 
Endangered Species Act does not apply because NMFS, the Federal agency 
with trust responsibility for gray whales, uses Federal, rather than 
state, law in the conservation of Eastern North Pacific gray whales.
    Marine Mammal Protection Act: The petition claims that the MMPA 
provides inadequate protection for the gray whale because there are no 
habitat protections in the MMPA, that the Potential Biological Removal 
(PBR) level is not sustainable, and that the government misinterpreted 
the MMPA moratorium on the killing of marine mammals. An evaluation of 
each of these claims follows.
    The MMPA imposes a moratorium on the taking of marine mammals. The 
MMPA also contains a variety of exceptions to this moratorium, 
including the authorizations to take small numbers of marine mammals 
incidental to activities other than commercial fishing (16 U.S.C. 1371 
(a)(5)). Petitioner correctly notes that this specific exception to the 
moratorium, which requires a finding of negligible impact on the 
affected stock of marine mammals, does not contain protection for 
marine mammal habitat. However, section 112 of the MMPA (16 U.S.C. 1382 
(e)), contains such a regulatory mechanism. That section allows NMFS to 
develop and implement conservation or management measures to alleviate 
impacts to areas of ecological significance to strategic stocks of 
marine mammals. Strategic stocks of marine mammals are defined as those 
stocks for which human-caused mortality and serious injury exceeds PBR 
(an estimate of a sustainable mortality level) or stocks that are 
depleted, threatened, or endangered.
    Thus, the MMPA contains an adequate regulatory mechanism to protect 
marine mammal habitat and to prevent the affected marine mammal stock 
from becoming threatened or endangered.
    PBR is defined in section 3 (20) of the MMPA (16 U.S.C. 1362(20)) 
as the ``...maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population [OSP].'' A value for a marine mammal stock's PBR level is 
calculated, as specified in the MMPA, by the product of two population 
statistics (a minimum population estimate of the stock and one-half the 
maximum theoretical or estimated net productivity rate of the stock at 
small populations) and a recovery factor. The concept of PBR is based 
on well-founded theory in population ecology, and the concept and its 
implementation by NMFS is thoroughly described in the peer-reviewed 
literature (Wade, P. 1998. Calculating limits to the allowable human-
caused mortality of cetaceans and pinnipeds. Marine Mammal Science 
14:1-37).
    The PBR levels of each stock of marine mammals in waters under U.S.

[[Page 32307]]

jurisdiction are included in regularly updated marine mammal stock 
assessment reports. The stock assessment report for Eastern North 
Pacific gray whales has been updated twice (in 1997 and 2000) since its 
initial completion in 1995. These reports are available in electronic 
form (see Electronic Access). The PBR for Eastern North Pacific gray 
whales was changed in each revision to incorporate the latest 
information available. In addition, NMFS continues to monitor the stock 
and will continue to update the stock assessment report as required by 
the MMPA.
    Petitioner alleges that the PBR level is not sustainable and 
attempts to support this allegation by modeling the stock, using a 
constant removal rate of 649 whales per year. Under such a scenario the 
stock declined. The petitioner's approach, however, used a PBR value 
higher than those reported in the 1995, 1997, and 2000 stock assessment 
reports and failed to adjust the model parameters in the manner in 
which NMFS has updated PBR values as stock assessment reports were 
updated. Furthermore, NMFS notes that human-caused mortality has not 
exceeded PBR (or even approached it) in any of the stock assessment 
reports prepared to date.
    Petitioner also claims that the MMPA offers inadequate protection 
to gray whales due to NMFS' misinterpretation of section 14 of Pub. L. 
103-238, 108 Stat. 552, 559 (1994), which addresses treaty rights. 
Petitioner claims that NMFS incorrectly interpreted this law (the MMPA 
Amendments of 1994) to conclude that the MMPA does not abrogate treaty 
rights. However, NMFS' conclusion regarding wether or not the MMPA 
abrogates treaty rights was not based upon the wording identified in 
the petition. Rather, NMFS, working with the Department of Commerce and 
the Department of the Interior, concluded that the MMPA does not 
abrogate treaty rights to harvest marine mammals. This conclusion is 
based on the case, United States v. Dion, 476 U.S. 734, 739-740 (1986), 
under which an abrogation of treaty rights requires ``...clear evidence 
that Congress actually considered the conflict between its intended 
action on the one hand and Indian treaty rights on the other, and chose 
to resolve that conflict by abrogating the treaty.'' The MMPA and its 
legislative history contain no indication that Congress made such a 
deliberate choice.
    International Convention on the Regulation of Whaling: Petitioner 
states, ``The petitioners do not dispute that the gray whale population 
has increased since the cessation of whaling.'' Petitioner also states, 
however, that the regulatory process through this convention and the 
International Whaling Commission (IWC) provides inadequate protection 
for gray whales. The petition claims that NMFS misinterpreted the 
aboriginal subsistence policies of the IWC and that IWC has never 
recognized the aboriginal subsistence needs of the Makah Tribe; 
therefore, the quota did not authorize the United States to permit the 
Makah to whale.
    The IWC granted a gray whale quota in 1997 based on a joint request 
from the United States and the Russian Federation. By granting this 
quota, the IWC recognized the needs of the Makah Tribe. Given 
Petitioner's observation that the gray whale stock has increased since 
commercial whaling was stopped and the petition's failure to refute 
this observation, NMFS concludes that Petitioner's claims of inadequate 
protection are not adequately supported.

Gray Whale Biology

    The petition contains a discussion of the biology and ecology of 
gray whales. Most of this discussion reviews existing scientific 
literature and makes no substantive conclusions regarding the status of 
the stock or threats to it. Exceptions to this general rule include the 
discussion of reproduction, mortality, and population size.
    Regarding reproduction, the petition reviews scientific literature, 
much of which was authored by NMFS scientists and included in the 1999 
status review. Petitioner notes that the percentage of females with 
calves in 1999 was less than in previous years. Based solely on this 
information and the estimated numbers of calves in 1999 and 2000, the 
petition concludes, ``The decline in calf counts and gray whale 
observations in the lagoons is cause for serious concern and 
demonstrates that the gray whale population is declining.'' The 
petition does not, however, include scientific information supporting 
the assertion that the population is declining. This statement also 
neglects to acknowledge that fundamentals of population biology, for 
which there is a large body of supporting literature, predict that 
calving rates are expected to be reduced in populations that are within 
their OSP (compared to depleted populations). Substantial scientific 
information supports a conclusion that the Eastern North Pacific stock 
of gray whales is above its Maximum Net Productivity Level (MNPL) and, 
therefore, within its OSP limits. The 28 invited participants at the 
1999 status review (each of whom is an expert in large-whale biology) 
suggested that the stock was nearing its environment's carrying 
capacity. Thus, decreased calf production is not necessarily cause for 
concern and does not necessarily indicate that the population is in 
danger of extinction or likely to become so in the foreseeable future.
    In the discussion related to mortality, the petition reviews 
various reports on mortality or survival rates of gray whales. The 
petition notes that gray whale mortality rates were significantly 
increased in 1999 and 2000, as evidenced by stranding reports, and 
concludes, ``Because of ongoing and increasing threats to the gray 
whale prey base, it is expected that such high documented mortality 
rates will continue.'' No information was included to support such a 
conclusion.
    From 1995-1998, strandings of gray whales along the west coast 
ranged from 21-54 whales per year. In 1999, 274 gray whales were 
reported stranded, and the initial estimate for 2000 was approximately 
350. Preliminary records indicate that strandings in 2001 are 
comparable to stranding rates prior to 1999. Thus, the best available 
information related to stranding rates contradicts the alleged 
expectation that the high mortality rates of 1999 and 2000 would 
continue.
    In discussing population size, Petitioner reviews results published 
by several NMFS scientists in the peer-reviewed literature. This brief 
review highlights the widely-recognized uncertainty that is inherent in 
estimating the abundance of marine mammals. To address this 
uncertainty, most scientists recommend a long-term data set so that the 
effects of annual fluctuations and variation will be minimized. For 
example, one recent study (Gerber, L, D. DeMaster, and P. Kareiva. 
1999. Gray whales and the value of monitoring data in implementing the 
U.S. Endangered Species Act. Conservation Biology 13:1215-1219) 
reviewed data from 19 counts of gray whales off the coast of California 
over a 30-year period since 1967. The objectives of this study included 
an evaluation of the very data set reviewed in the petition to discern 
the minimum amount of data required to support the determination that 
Eastern North Pacific gray whales were no longer threatened or 
endangered. These scientists concluded that the decision to delist gray 
whales required 11 years of data to obtain statistically compelling 
support. These results were consistent with general acceptance of the 
principle that the statistical power of an analysis is diminished when

[[Page 32308]]

sample sizes are partitioned in small groups.
    In contrast to recommendations found widely in the scientific 
literature regarding such data sets, Petitioner suggests that a more 
``critical review'' of the gray whale data set could be obtained by 
breaking the data set down into three ``related subgroups,'' two of 
which were seven years in duration. Petitioner then claims that the 
stock was declining from 1967 through 1972 and was maintaining a 
statistically stable trend in the other two segments (1973-1980 and 
1985-1996). Petitioner, however, fails to explain how these subgroups 
were related and failed to discuss the statistical significance and 
power of the analyses included in the petition. Thus, Petitioner's 
conclusions are not supported by scientific evidence and are 
inconsistent with accepted statistical procedures.

Habitat and Other Factors Affecting Gray Whales

    Harvest Statistics: The petition cites published information that 
the proportion of females in the aboriginal subsistence harvest (almost 
entirely in the U.S.S.R./Russian Federation) was about 65 percent from 
1948 through 1996. The petition also cited published information 
indicating that 1.4 to 2.3 year-old whales were about 90 percent of the 
harvest from 1994 through 1996. On the basis of this information, 
Petitioner suggests that there was a sex bias in the population and 
that the high proportion of immature animals in the harvest reduced 
population productivity. Petitioner then speculates that the population 
would decline as a result of increased mortality and decreased 
productivity. Petitioner further claims that the lack of consideration 
of these factors in developing management schemes avoids recognition of 
the adverse implication of the bias in the harvest, thereby threatening 
the long-term survival and viability of the population. Petitioner, 
however, includes no meaningful information to support these claims 
other than the harvest statistics summarized here. In particular, the 
petition does not contain any support for the idea that the population 
is actually declining. On the other hand, the peer-reviewed literature 
cited in the 1999 status review and in the petition demonstrate 
conclusively that the population has been increasing since at least 
1967, and the scientists at the status review reported that it was near 
its carrying capacity.
    Underestimated Mortality: The petition reviews publications related 
to mortality incidental to commercial fishing and strandings and 
undocumented mortality. From this review, Petitioner concludes that 
incidental mortality should be considered a minimum estimate, that ship 
strikes exceeded the 1 per year reported in the gray whale stock 
assessment report, and that counts of stranded gray whales 
underestimated mortality. In spite of the unquestionable increasing 
trend in the population from 1967 through 1996 and the general 
agreement among large-whale scientists (as included in the report of 
the 1999 status review) that the population is near its carrying 
capacity, Petitioner concludes that the government's failure to 
consider undocumented mortalities of gray whales constitutes a threat 
to the survival and viability of the gray whale population. Petitioner, 
however, does not cite or provide any substantive information to 
support this conclusion, which is inconsistent with the scientific 
literature.
    Decline in Benthic Amphipods: The petition includes the results of 
a study that documented a 30-percent decrease in biomass of one species 
of benthic amphipod in the central Chirikov basin between 1986 and 
1987; Petitioner speculates, without supporting evidence, that a 
decline has continued since the conclusion of that study. The petition 
also includes the results of another study that reported a declining 
trend in benthic biomass form 1990 to 1994, with a single site having a 
decline of about 50 percent.
    Amphipods are typically distributed unevenly within their range, 
and large increases or decreases in local abundance may be normal. It 
is possible that local changes in amphipod abundance might have an 
adverse effect on gray whale populations; however, the petition does 
not provide information that such an impact would be great enough to 
warrant listing the stock as threatened or endangered.
    Global Warming and ENSO: The petition suggests that climate change 
(global warming) and periodic fluctuations in sea surface temperature, 
such as during an ENSO event, alter benthic communities, including 
amphipods. The petition states that climate change at decadal time 
scales has significant effects on the marine ecosystem, and it further 
states that global warming, which, as the petition noted, occurs on a 
longer time scale, imposes even greater impacts on an ecosystem. Then, 
the petition states, ``The cumulative impact of global warming and 
other threats to benthic amphipods demonstrate the urgency with which 
gray whale habitat must be protected through a listing under the ESA.'' 
It is not clear from the information included in the petition how 
events that occur on decadal or longer time scales constitute an urgent 
need to protect the stock. Also, there is no information in the 
petition that suggests any correlation between global warming or ENSO 
events and endangerment or likelihood of extinction of the gray whale 
in the foreseeable future.
    Among the effects of atmospheric warming included in the petition 
is a decrease in the frequency of storms. The petition states that a 
reduction in the number of storms decreases the frequency with which 
detritus, which the petition identified as a critical food source for 
benthic amphipods, is re-suspended in the marine environment. This 
section of the petition includes a discussion of mechanisms by which 
global warming could affect benthic amphipods, an important food source 
for gray whales. Those mechanisms are addressed in the following 3 
paragraphs:
    (1) Impact of Contaminants on Benthic Amphipods: The petition 
describes various mechanisms by which contaminants, particularly 
related to oil spills, could affect the habitat and food sources of 
gray whales. The petition, however, does not present information that 
such effects on gray whale habitat had actually occurred or to what 
extent they were likely to occur. Additionally, there is no assessment 
of the extent of such effects on gray whales.
    (2) Trawling Impacts to Benthic Amphipods: Petitioner claims that 
bottom trawling for groundfish is a significant threat to the gray 
whale because this practice destroys and degrades benthic amphipod 
communities. The petition then discusses various mechanisms by which 
bottom trawling could affect gray whales and their habitat. These 
mechanisms include the resuspension of buried organic matter. The 
petition notes that such resuspension could contribute to the growth of 
anoxic areas, could increase turbidity (thus, reduce photosynthesis), 
and possibly could re-expose toxins that were previously sequestered in 
the sediment. This observation is inconsistent with the claim made 
earlier in the petition that such re-suspension was beneficial when 
caused by storms. Furthermore, the petition fails to include 
information to show a decline in benthic amphipods that could be 
attributed to trawling, and it fails to assess the extent of trawling 
within the range of Eastern North Pacific gray whales in waters off 
Alaska.
    (3) Impacts of Predation on Benthic Amphipods: This section of the 
petition begins with a statement that scientists

[[Page 32309]]

have suggested that the prey base of gray whales is declining as the 
species approaches its carrying capacity. It continues with the 
statement that available evidence suggests that other natural and 
anthropogenic factors likely play a far more significant role in 
determining benthic amphipod abundance than does gray whale predation. 
The petition, however, contains no other reference to the impacts of 
predation on benthic amphipods nor does it contain any support for 
these assertions.
    Oil and Gas Exploration and Extraction: The section fo the petition 
related to oil and gas activities cites several government documents 
that describe the extent of oil and gas production within the gray 
whale's range and documents that predict that such activity will expand 
in the future. The petition also notes government estimates of the 
probabilities of one or more oil spills (1,000 and 10,000 barrels or 
more) in certain areas. The petition then describes mechanisms by which 
oil spills could affect gray whales. This section of the petition 
contains no information on the impact or potential impact on gray whale 
populations and information related to the role that oil and gas 
activities may have in causing the gray whale stock to be in danger of 
extinction or likely to become so in the foreseeable future.
    Noise Impacts: The petition describes several mechanisms by which 
noise could affect individual gray whales. Citing a series of reports, 
primarily by NMFS scientists, the petition contains evidence that gray 
whales respond to noise in their environment and may avoid the source 
of the noise. There is no information related to the extent to which 
noise has affected or may affect gray whale populations.
    Contaminants: The petition describes several potential sources of 
contaminants in gray whale habitat and notes that the potential threat 
of contaminants is somewhat reduced for gray whales because gray whales 
consume prey of relative low trophic levels. The petition then 
describes observations of Russian Natives who had killed ten gray 
whales that had an ``extremely strong smell'' and ``unusual taste.'' 
This section of the petition concludes that scientists do not have an 
understanding of the full range of issues necessary to fully assess the 
impact of contaminants on gray whales and that additional research is 
needed. As noted in the report of the 1999 status review, however, much 
research has been conducted on contaminants in gray whales, and this 
work indicates that contaminant levels are such that they are not 
likely to endanger the population.
    Other Impacts: The petition includes on-shore development and 
vessel traffic, including whale watching, as other potential sources of 
impact on gray whales. Regarding on-shore development, the petition 
notes the creation of a plan for a salt plant on the shore of Laguna 
San Ignacio and that the plan was subsequently withdrawn. The petition 
presents one study as reporting gray whales were absent from a calving 
lagoon in Laguna Guerro Negro from 1957 to 1967 when a salt evaporation 
facility was operational and had returned 6 years after the facility 
had closed.
    Regarding vessel traffic, the petition cites several studies that 
found that gray whales demonstrate short-term flight reactions, 
particularly when boats move at high speed or erratically. The petition 
also notes that one study, published in 1984, found that whale watching 
activities in Laguna San Ignacio had not caused major disruptions. The 
petition also recognizes that regulations restricting whale watching 
activities in the United States have reduced, but not eliminated, 
adverse impacts associated with whale watching. The petition, however, 
presents no information indicating that impacts of these activities 
endangered the stock.

Petition Finding

    As noted in the description of the 1999 status review, the best 
available scientific information overwhelmingly demonstrates that the 
Eastern North Pacific stock of gray whales increased during the period 
1967 through 1996 and that the stock may be near its carrying capacity. 
The information supporting these conclusions regarding the abundance 
and status of the stock have been scrutinized by leading experts on 
large-whale population dynamics through the 1999 status review, through 
scientific meetings supporting the IWC, through the Alaska Scientific 
Review Group, and through established peer-review processes for 
publishing scientific results.
    The petition presents arguments regarding uncertainties in 
abundance estimates. These arguments are purportedly supported by 
modeling efforts that have not been subjected to the scrutiny of peer 
review. In light of the substantial scientific information supporting 
the finding that the status of the gray whale stock is well above its 
MNPL, the arguments in this petition are not supported by substantial 
information that would lead a reasonable person to believe that the 
petitioned action may be warranted.
    The best available scientific information clearly shows that 
Eastern North Pacific gray whales are within their OSP, and 28 experts 
in large-whale biology agreed in the 1999 status review that the stock 
was nearing its environmental carrying capacity. One of the fundamental 
tenets of population ecology is that reproductive rates in populations 
above their MNPL (and, under the MMPA, within OSP limits) are lower 
than when the population is depleted and recovering. Therefore, the 
reduced productivity rates observed in this gray whale population are, 
indeed, expected and predictable.
    Another tenet of population ecology is that the carrying capacity 
of an environment for a particular species is a variable that can 
change over long time scales. Furthermore, around this long-term 
capacity, there are year-to-year fluctuations in the numbers of 
organisms that the particular habitat will support. In the case of gray 
whales and many other species in the North Pacific Ocean, these 
fluctuations can be caused by such things as ENSO events and extent of 
sea ice. These fluctuations may have a large effect on annual primary 
production in the affected environment, which, in turn, will affect 
higher trophic levels. Thus, it is expected that environmental 
fluctuation would result in large numbers of whales dying in certain 
years, particularly because gray whales may be near their environment's 
carrying capacity.
    The information presented in the petition accurately reflects high 
levels of mortality in 1999 and 2000; however, the only available data 
for 2001 suggest that mortality levels are returning to those seen 
prior to the unusual levels seen in 1999 and 2000.
    The petition does not accurately characterize (e.g., PBR, 
abrogation of treaty rights) or ignores (e.g., habitat protection) 
provisions of the MMPA. It also does not accurately characterize 
conservation actions, and the results of these actions, under the IWC. 
The assertion in the petition that there is an inadequate regulatory 
mechanism is based upon these inaccuracies.
    The petition includes a discussion of a variety of factors that 
could affect gray whales and characterizes these factors as significant 
threats to the gray whale. Indeed, the information in the petition 
indicates that the gray whale population may have been adversely 
affected by at least some of these factors.
    As NMFS pointed out in its determination that the Eastern North 
Pacific stock of gray whales should be removed from protections under 
the ESA (58 FR 3121, January 7, 1993), individual and cumulative 
impacts of

[[Page 32310]]

various factors may have had adverse impacts on the gray whale stock; 
however, these factors were not likely to jeopardize the continued 
existence of the stock. Similarly there is not substantial information 
in this petition, in light of the evidence to the contrary, indicating 
that the Eastern North Pacific stock of gray whales is in danger of 
extinction throughout all or a significant portion of its range or 
likely to become endangered in the foreseeable future. Therefore, NMFS 
finds that the petition does not present substantial scientific or 
commercial information indicating that the petitioned action (listing 
Eastern North Pacific gray whales as threatened or endangered) may be 
warranted.

Electronic Access

    Updated versions of the stock assessment reports for the Eastern 
North Pacific stock of gray whales are available at the following 
Internet address: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/individual_sars.html

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

    Dated: June 8, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-15059 Filed 6-13-01; 8:45 am]
BILLING CODE 3510-22-S


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