Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32305

existence. Listing determinations are

based solely on the best scientific and

commercial data available, after

conducting a review of the status of the

species and taking into account efforts

made by states or foreign nations to

protect such species.

Information Solicited

To ensure that the southern

population of bocaccio (Sebastes

paucispinis) status review is complete

and based on the best available

scientific and commercial data, NMFS is

soliciting information and comments on

whether the southern population of

bocaccio is threatened by any of the

listing criteria described above.

Specifically, NMFS is soliciting

information in the following areas:

Historical abundance, current

abundance, factors contributing to

population declines, sources of

mortality other than commercial and

recreational fishing, habitat use, habitat

condition, factors affecting habitat

condition, and distinctness of the

southern population. NMFS is also

soliciting information on efforts to

conserve bocaccio and the adequacy of

those efforts in achieving their intended

purpose.

Critical Habitat

NMFS is also requesting information

on areas that may qualify for critical

habitat for the southern population of

bocaccio. Areas that include the

physical and biological features

essential to the conservation of the

species and which may require special

management considerations of

protection should be identified. Areas

outside the current range of the species

may be included if they are necessary

for the conservation of the species.

Essential features should include, but

are not limited to: (1) space for

individual growth and for normal

behavior; (2) food, water, air, light,

minerals, or other nutritional or

physiological requirements; (3) cover or

shelter; (4) sites for reproduction and

development of offspring; and (5)

habitats that are protected from

disturbance or are representative of the

historical, geographical, and ecological

distribution of the species.

For areas potentially qualifying as

critical habitat, NMFS is requesting

information describing: (1) the activities

that affect the areas or could be affected

by the designation; and (2) the economic

costs and benefits of additional

requirements of management measures

likely to result from the designation.

Comments should include: (1)

supporting documentation, such as

maps, bibliographic references, or

reprints of pertinent publications, if

applicable, and (2) the commenting

party’s name, address, and association,

institution, or business.

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

U.S.C. 742a et seq.; 31 U.S.C. 9701; and 16

U.S.C. 1361 et seq.

Dated: June 7, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 01–15058 Filed 6–13–01; 8:45 am]

BILLING CODE 3510–22–S

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.

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 tom.eagle@noaa.gov.

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 Nin ̃ o-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

32306 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

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 peerreviewed 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.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 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 humancaused 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 peerreviewed 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

32308 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

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 resuspended 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 reexpose 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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 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-toyear 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

32310 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 300

[Docket No. 010607147–1147–01; I.D.

052101A]

RIN 0648–AP26

Pacific Halibut Fisheries; Primary

Sablefish Fishery

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues this proposed

rule to provide a regulatory framework

that would implement an Area 2A

Pacific halibut Catch Sharing Plan (CSP)

allocation to the Pacific Coast, limited

entry primary sablefish fishery. This

rule would allow halibut taken

incidentally in the primary sablefish

fishery to be retained and landed and

would provide a framework that would

allow the Pacific Fishery Management

Council (Council) to recommend halibut

catch limits for the sablefish fishery

when a halibut quota is available to that

fishery.

DATES: Comments must be submitted in

writing by July 16, 2001.

ADDRESSES: ADDRESSES: Send

comments to Donna Darm, Acting

Regional Administrator, Northwest

Region, NMFS, 7600 Sand Point Way,

Seattle, WA 98115. Copies of the

environmental assessment/regulatory

impact review (EA/RIR) for this action

are available from Donald McIsaac,

Executive Director, Pacific Fishery

Management Council (Council), 2130

SW Fifth Avenue, Suite 224, Portland,

OR 97201.

FOR FURTHER INFORMATION CONTACT:

Yvonne deReynier, 206–526–6140.

SUPPLEMENTARY INFORMATION: The

Convention between the United States

and Canada for the Preservation of the

Halibut Fishery of the North Pacific

Ocean and the Bering Sea (Convention),

signed at Ottawa, Ontario, Canada, on

March 2, 1953, and amended by a

Protocol Amending the Convention,

signed at Washington, D.C., United

States of America, on March 29, 1979,

authorizes the International Pacific

Halibut Commission (Commission) to

promulgate regulations for the

conservation and management of the

Pacific halibut fishery. Before these

regulations have any effect on U.S.

fishermen, they must be approved by

the Secretary of State of the United

States pursuant to section 4 of the

Northern Pacific Halibut Act (Halibut

Act, 16 U.S.C. 773–773k) that executes

the above Convention. Section 5 of the

Halibut Act gives the Secretary of

Commerce (Secretary) the responsibility

to carry out the Convention between the

United States and Canada and requires

the Secretary to adopt such regulations

as may be necessary to carry out the

purposes and objectives of the

Convention and the Halibut Act. The

Secretary’s authority has been delegated

to the Assistant Administrator for

Fisheries, NOAA. Section 5 of the

Halibut Act also provides that the

regional fishery management council,

having authority for the geographical

area concerned, may recommend to

NMFS management measures governing

Pacific halibut catch in U.S. Convention

waters that are in addition to, but not in

conflict with, regulations of the

Commission.

The Commission describes the waters

off the coasts of Washington, Oregon,

and California as ‘‘Area 2A.’’ The

Council recommends management

policies affecting Area 2A through the

annually updated CSP, and NMFS and

the Commission adopt them for

implementation.

This CSP has been in place since

1995, when the Council re-considered

its management of non-tribal fisheries in

order to accommodate a court-ordered

increase to the tribal halibut allocation.

The tribal fisheries for halibut occur

north of Pt. Chehalis, Washington.

Under the CSP, non-tribal fisheries are

divided into three shares, with the

Washington sport fishery receiving 36.6

percent, the Oregon/California sport

fishery receiving 31.7 percent, and the

commercial fishery receiving 31.7

percent. The non-tribal commercial

fisheries included a directed

commercial fishery south of Pt. Chehalis

and a coastwide incidental halibut

retention opportunity for the salmon

troll fishery. This CSP ended non-treaty

directed commercial fishing north of Pt.

Chehalis.

In 1998, Washington State and the

Council decided to allow non-tribal

commercial longliners who had

traditionally taken halibut off the

Washington coast to have access to

some commercial halibut in years of

greater halibut abundance. Amendments

to the CSP in 1998 included a halibut

allocation for longline vessels

participating in the Pacific coast,

limited entry primary sablefish fishery

north of Pt. Chehalis. Longliner

participants in the primary sablefish

fishery were generally the same

fishermen who had lost a directed

commercial fishing opportunity in 1995.

Under 1998 changes to the CSP, this

halibut allocation would be available

only to the sablefish fishery when the

overall total allowable catch (TAC) for

Area 2A was above 900,000 lb (408.2

mt). Implementing regulations for this

portion of the CSP were not

promulgated in 1998 because there were

no fish available for this fishery. For the

first time since 1998, the Area 2A TAC

is above 900,000 lb (408.2 mt); therefore,

NMFS is now proposing implementing

regulations. Because most of the nontribal halibut quota for waters off

Washington State is allocated to the

sport fisheries, the CSP takes the

commercial sablefish fishery allocation

from the percentage previously set aside

for the Washington recreational fishery

allocation.

At its January 22–25 meeting, the

Commission set an Area 2A TAC of

1,140,000 lb (517 mt). According to the

CSP, the primary sablefish fishery

would receive an allocation of the

amount of halibut from the portion of

the Washington sport fishery allocation

(36.6 percent of the Area 2A TAC) that

is in excess of 214,110 lb (97.1 mt),

provided that a minimum of 10,000 lb