Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 69903 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. 

Under RCRA 3006(b), EPA grants a 

State’s application for authorization as 

long as the State meets the criteria 

required by RCRA. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a State 

authorization application, to require the 

use of any particular voluntary 

consensus standard in place of another 

standard that otherwise satisfies the 

requirements of RCRA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. EPA has complied 

with Executive Order 12630 (53 FR 

8859, March 15, 1988) by examining the 

takings implications of the rule in 

accordance with the ‘‘Attorney 

General’s Supplemental Guidelines for 

the Evaluation of Risk and Avoidance of 

Unanticipated Takings’’ issued under 

the Executive Order. This rule does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this document and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication in the Federal Register. A 

major rule cannot take effect until 60 

days after it is published in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). This 

action, nevertheless, will be effective 60 

(sixty) days after publication pursuant 

to the procedures governing immediate 

final rules. 

List of Subjects in 40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Hazardous waste 

transportation, Indian lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements. 

Authority: This action is issued under the 

authority of sections 2002(a), 3006 and 

7004(b) of the Solid Waste Disposal Act as 

amended 42 U.S.C. 6912(a), 6926, 6974(b). 

Dated: November 9, 2005. 

Robert W. Varney, 

Regional Administrator, EPA New England. 

[FR Doc. 05–22891 Filed 11–17–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 041213348–5285–02; I.D. 

110904E] 

RIN 0648–AS95 

Endangered and Threatened Wildlife 

and Plants: Endangered Status for 

Southern Resident Killer Whales 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NOAA’s National Marine 

Fisheries Service (NMFS) is issuing a 

final determination to list the Southern 

Resident killer whale distinct 

population segment (DPS) as 

endangered under the Endangered 

Species Act of (ESA) 1973. Following an 

update of the status review of Southern 

Resident killer whales (Orcinus orca) 

under the ESA, NMFS published a 

proposed rule to list the Southern 

Resident killer whale DPS as threatened 

on December 22, 2004. After 

considering public comments on the 

proposed rule and other available 

information, we reconsidered the status 

of Southern Residents and are issuing a 

final rule to list the Southern Resident 

killer whale DPS as an endangered 

species. The prohibition on take of an 

endangered species will go into effect at 

the time this final rule is effective (see 

DATES). 

DATES: This final rule is effective 

February 16, 2006. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection by appointment during 

normal business hours at the NMFS, 

Protected Resources Division, 7600 

Sand Point Way NE, Seattle, WA, 98115. 

The final rule, references and other 

materials relating to this determination 

can be found on our website at 

www.nwr.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynne Barre at the address above or at 

(206) 526–4745, or Ms. Marta Nammack, 

Office of Protected Resources, Silver 

Spring, MD (301) 713–1401, ext. 180. 

SUPPLEMENTARY INFORMATION: 

Background 

On May 2, 2001, we received a 

petition from the Center for Biological 

Diversity and 11 co-petitioners (CBD, 

2001) to list Southern Resident killer 

whales as threatened or endangered 

under the ESA. On August 13, 2001, we 

provided notice of our determination 

that the petition presented substantial 

information indicating that a listing may 

be warranted and requested information 

to assist with a status review to 

determine if Southern Resident killer 

whales warranted listing under the ESA 

(66 FR 42499). To assist in the status 

review, we formed a Biological Review 

Team (BRT) of scientists from our 

Alaska, Northwest, and Southwest 

Fisheries Science Centers. We convened 

a meeting on September 26, 2001, to 

gather technical information from comanagers, scientists, and individuals 

having research or management 

expertise pertaining to killer whale 

stocks in the North Pacific Ocean. 

Additionally, the BRT discussed its 

preliminary scientific findings with 

Tribal, State and Canadian co-managers 

on March 25, 2002. The BRT considered 

information from the petition, the 

September and March meetings, and 

comments submitted in response to our 

information request in preparing a final 

scientific document on Southern 

Resident killer whales (NMFS, 2002). 

After conducting the status review, 

we determined that listing Southern 

Resident killer whales as a threatened or 

endangered species was not warranted 

because Southern Resident killer whales 

did not constitute a species as defined 

by the ESA. The ESA’s definition of 

species includes subspecies and 

‘‘distinct population segments.’’ The 

agency considers a group of organisms 

to be a DPS when it is both discrete 

from other populations and significant 

to the taxon to which it belongs (61 FR 

4722; February 7, 1996). We considered 

Southern Resident killer whales in the 

context of the global taxon (i.e., all killer 

whales worldwide) and found that the 

population did not meet the significance 

criterion for consideration as a DPS. The 

finding, along with supporting 

documentation, was published on July 

69904 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 

1, 2002 (67 FR 44133). The 2002 status 

review and other documents supporting 

the ‘‘not warranted’’ finding are 

available on the internet (see Electronic 

Access). Because of the uncertainties 

regarding killer whale taxonomy (i.e., 

whether the killer whale should be 

considered as one species or as multiple 

species and/or subspecies), we 

announced we would reconsider the 

taxonomy of killer whales within 4 

years. 

The scientific information evaluated 

during the ESA status review indicated 

that Southern Resident killer whales 

may be depleted under the Marine 

Mammal Protection Act (MMPA). We 

initiated consultation with the Marine 

Mammal Commission (Commission) in 

a letter dated June 25, 2002, and 

published an advance notice of 

proposed rulemaking (ANPR) on July 1, 

2002 (67 FR 44132), to request pertinent 

information regarding the status of the 

stock and potential conservation 

measures that may benefit these whales. 

After considering comments received in 

response to the ANPR and from the 

Commission, we published a proposed 

rule to designate the Southern Resident 

stock of killer whales as depleted (68 FR 

4747; January 30, 2003) and solicited 

comments on the proposal. Based on the 

best scientific information available, 

consultation with the Commission, and 

consideration of public comment, we 

determined that the Southern Resident 

stock of killer whales was depleted 

under the MMPA (68 FR 31980; May 29, 

2003) and announced our intention to 

prepare a Conservation Plan. We 

published a Notice of Availability of a 

Proposed Conservation Plan for 

Southern Resident Killer Whales on 

October 3, 2005 (70 FR 57565). 

On December 18, 2002, the Center for 

Biological Diversity (and other 

plaintiffs) challenged our ‘‘not 

warranted’’ finding under the ESA in 

U.S. District Court. The U.S. District 

Court for the Western District of 

Washington issued an order on 

December 17, 2003, which set aside our 

‘‘not warranted’’ finding and remanded 

the matter to us for redetermination of 

whether the Southern Resident killer 

whales should be listed under the ESA 

(Center for Biological Diversity v. Lohn, 

296 F. Supp. 2d. 1223 (W.D. Wash. 

2003)). The District Court held that 

‘‘[w]hen the best available science 

indicates that the ‘standard taxonomic 

distinctions’ are wrong . . . NMFS must 

rely on the best available science.’’

As a result of the court’s order, we 

reconvened a BRT in 2004 to consider 

new scientific and commercial data 

available since 2002 and update the 

status review for Southern Residents. 

We announced the status review update 

and requested that interested parties 

submit pertinent information to assist us 

with the update (69 FR 9809; March 2, 

2004). In addition, we co-sponsored a 

Cetacean Taxonomy workshop in 2004, 

which included a special session on 

killer whales. The papers and reports 

from the workshop were made available 

to the BRT. 

In August 2004, we met with 

Washington State and Tribal comanagers to provide information on the 

status review update and receive 

comments. These comments were 

evaluated by the BRT, which then 

prepared a final status review document 

for Southern Resident killer whales 

(NMFS, 2004). The BRT agreed that 

Southern Residents likely belong to an 

unnamed subspecies of resident killer 

whales in the North Pacific, which 

includes the Southern and Northern 

Residents, as well as the resident killer 

whales of Southeast Alaska, Prince 

William Sound, Kodiak Island, the 

Bering Sea and Russia (but not 

transients or offshores). The BRT 

concluded that the Southern Residents 

are discrete and significant with respect 

to the North Pacific resident taxon and 

therefore should be considered a DPS. 

In addition, the BRT conducted a 

population viability analysis which 

modeled the probability of species 

extinction under a range of 

assumptions. Based on the findings of 

the status review and an evaluation of 

the factors affecting the DPS, we 

published a proposed rule to list the 

Southern Resident killer whales as 

threatened on December 22, 2004 (69 FR 

76673). 

Natural History of Killer Whales 

Killer whales are one of the most 

strikingly pigmented of all cetaceans, 

making field identification easy. Killer 

whales are black dorsally and white 

ventrally, with a conspicuous white 

oval patch located slightly above and 

behind the eye. A highly variable gray 

or white saddle is usually present 

behind the dorsal fin. Sexual 

dimorphism occurs in body size, flipper 

size, and height of the dorsal fin. More 

detailed information regarding this 

species’ distribution, behavior, genetics, 

morphology, and physiology are 

contained in the BRT’s status review 

documents (NMFS, 2002, 2004) and the 

Washington State Status Report for the 

Killer Whale (Wiles, 2004). 

Killer whales are classified as top 

predators in the food chain and are the 

world’s most widely distributed marine 

mammal (Leatherwood and Dahlheim, 

1978; Heyning and Dahlheim, 1988). 

Although observed in tropical waters 

and the open sea, they are most 

abundant in coastal habitats and high 

latitudes. In the northeastern Pacific 

Ocean, killer whales occur in the 

eastern Bering Sea (Braham and 

Dahlheim, 1982) and are frequently 

observed near the Aleutian Islands 

(Scammon, 1874; Murie, 1959; Waite et 

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

Alaska (Scheffer, 1967) and the 

intercoastal waterways of British 

Columbia and Washington State 

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

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

occasional reports of killer whales along 

the coasts of Washington, Oregon, and 

California (Norris and Prescott, 1961; 

Fiscus and Niggol, 1965; Rice, 1968; 

Gilmore, 1976; Black et al., 1997; 

NMFS, 2004), both coasts of Baja 

California (Dahlheim et al., 1982), the 

offshore tropical Pacific (Dahlheim et 

al., 1982), the Gulf of Panama, and the 

Galapagos Islands. In the western North 

Pacific, killer whales occur frequently 

along the Russian coast in the Bering 

Sea, the Sea of Okhotsk, the Sea of 

Japan, and along the eastern side of 

Sakhalin and the Kuril Islands (Tomilin, 

1957). There are numerous accounts of 

their occurrence off China (Wang, 1985) 

and Japan (Nishiwaki and Handa, 1958; 

Kasuya, 1971; Ohsumi, 1975). Data from 

the central Pacific are scarce. They have 

been reported off Hawaii, but do not 

appear to be abundant in these waters 

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

The killer whale is the largest species 

within the family Delphinidae. Various 

scientific names have been assigned to 

the killer whale (Hershkovitz, 1966; 

Heyning and Dahlheim, 1988). These 

various names can be explained by 

sexual and age differences in the size of 

the dorsal fin, individual variations in 

color patterns, and the cosmopolitan 

distribution of the animals. The genus 

Orcinus is currently considered 

monotypic with geographical variation 

noted in size and pigmentation patterns. 

Two proposed Antarctic species, O. 

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

glacialis (Berzin and Vladimirov, 1982; 

Berzin and Vladimirov, 1983), both 

appear to refer to the same type of 

smaller individuals. However, because 

of significant uncertainties regarding the 

limited specimen data, these new taxa 

have not been widely accepted by the 

scientific community. New observations 

of color pattern, size, habitat and 

feeding ecology have led to the 

conclusion that there are three types of 

killer whales in Antarctica (Pitman and 

Ensor, 2003). Recent genetic 

investigations note marked differences 

between some forms of killer whale 

Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 69905 

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

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

taxonomy was reviewed as part of the 

‘‘Workshop on Shortcomings of 

Cetacean Taxonomy in Relation to 

Needs of Conservation and 

Management’’ held on April 30 – May 

2, 2004 in La Jolla, California, and the 

results were published in a report 

(Reeves et. al., 2004). 

Ecotypes of Killer Whales 

Killer whales in the Eastern North 

Pacific region (which includes the 

Southern Resident killer whales) have 

been classified into three forms, or 

ecotypes, termed residents, transients, 

and offshore whales. Significant genetic 

differences occur among resident, 

transient, and offshore killer whales 

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

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

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

three forms also vary in morphology, 

ecology, and behavior. All of these 

characteristics play an important role in 

determining whether the monotypic 

species O. orca can be subdivided under 

the ESA. 

Resident Killer Whales 

Resident killer whales in the Eastern 

North Pacific are noticeably different 

from both the transient and offshore 

forms. The dorsal fin of resident whales 

is rounded at the tip and falcate (curved 

and tapering). Resident whales have a 

variety of saddle patch pigmentations 

with five different patterns recognized 

(Baird and Stacey, 1988). Resident 

whales occur in large, stable pods with 

membership ranging from 10 to 

approximately 60 whales. Their 

presence has been noted in the waters 

from California to Alaska. The primary 

prey of resident whales is fish. A recent 

summary of the differences between 

resident and transient forms is found in 

Baird (2000). 

Resident killer whales in the North 

Pacific consist of the following groups: 

Southern, Northern, Southern Alaska 

(includes Southeast Alaska and Prince 

William Sound whales), western Alaska, 

and western North Pacific Residents. 

The Southern Resident killer whale 

assemblage contains three pods-- J pod, 

K pod, and L pod--and is considered a 

stock under the MMPA. Their range 

during the spring, summer, and fall 

includes the inland waterways of Puget 

Sound, Strait of Juan de Fuca, and 

Southern Georgia Strait. Their 

occurrence in the coastal waters off 

Oregon, Washington, Vancouver Island, 

and more recently off the coast of 

central California in the south and off 

the Queen Charlotte Islands to the north 

has been documented. Little is known 

about the winter movements and range 

of the Southern Resident stock. 

Southern Residents have not been seen 

to associate with other resident whales, 

and mitochondrial and nuclear genetic 

data suggest that Southern Residents 

interbreed with other killer whale 

populations rarely if at all (Hoelzel et 

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

Transient Killer Whales 

Transient whales occur throughout 

the Eastern North Pacific with a 

preference towards coastal waters. Their 

geographical range overlaps that of the 

resident and offshore whales. Individual 

transient killer whales have been 

documented to move great distances 

reflecting a large home range (Goley and 

Straley, 1994). There are several 

differences between transient and 

resident killer whales; these have most 

recently been summarized by Baird 

(2000). The dorsal fin of transient 

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

straighter at the tip) than those of 

resident and offshore whales. Saddle 

patch pigmentation of Transient killer 

whales is restricted to three patterns 

(Baird and Stacey, 1988). Pod structure 

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

dynamic in nature. The primary prey of 

transient killer whales is other marine 

mammals. Transient whales are not 

known to intermix with resident or 

offshore whales. Recent genetic 

investigations indicate that up to three 

genetically different groups of transient 

killer whales exist in the eastern North 

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

‘‘Gulf of Alaska Transients’’ and the 

AT1 pod) (Barrett-Lennard, 2000; 

Barrett-Lennard and Ellis, 2001). 

Offshore Killer Whales 

Offshore killer whales are similar to 

resident whales, but can be 

distinguished (i.e., their fins appear to 

be more rounded at the tip with 

multiple nicks on the trailing edge, 

smaller overall size, less sexual 

dimorphism), but these characteristics 

need to be further quantified. Offshore 

whales have been seen in considerably 

larger groups (up to 200 whales) than 

residents or transients have. They are 

known to range from central coastal 

Mexico to Alaska and occur in both 

coastal and offshore waters (300 miles 

off Washington State). While foraging, it 

is assumed that the main target is fish, 

but observations of feeding events are 

extremely limited. Offshore whales are 

not known to intermingle with resident 

or transient whales. Genetic analysis 

indicates that offshore whales are 

substantially reproductively isolated 

from other killer whale populations 

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

2004). 

Summary of Comments Received in 

Response to the Proposed Rule 

NMFS held public hearings and 

meetings in February 2005 to provide 

information on the proposed listing 

under the ESA, answer questions, and 

receive comments. We received 34 

written comments from government 

agencies, non-profit groups and 

members of the public, as well as peer 

review comments. An additional 1,292 

form letters were submitted via e-mail. 

All of the comments supported listing 

Southern Resident killer whales under 

the ESA, with the exception of three 

comments, two of which addressed 

issues other than the listing and one 

which stated ‘‘no comment.’’

A joint NMFS/FWS policy requires us 

to solicit independent expert review 

from at least three qualified specialists, 

concurrent with the public comment 

period (59 FR 34270, July 1, 1994). We 

solicited technical review of the 

proposed listing determinations from 10 

independent experts selected from the 

academic and scientific community. In 

December 2004 the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review establishing minimum peer 

review standards, a transparent process 

for public disclosure, and opportunities 

for public input. We received comments 

from one of the independent experts 

from whom we had requested technical 

review of the proposed listing 

determinations. The independent expert 

reviewer was generally supportive of the 

scientific principles underlying the DPS 

determination and proposed listing 

determination. The reviewer, however, 

went on to consider the status of all 

North Pacific resident whales, and 

suggested that the extinction of 

Southern Resident killer whales would 

lead to a significant gap in the range of 

all North Pacific residents, indicating 

that all residents should be considered 

endangered (see comment 6 and 

response). There was substantial overlap 

between the comments from the 

independent expert reviewer and the 

substantive public comments. The 

comments were sufficiently similar that 

we have responded to the reviewer’s 

comments through our general 

responses below. 

Comment 1: The majority of 

commenters, including the peer 

reviewer, supported a listing of 

Southern Resident killer whales as 

endangered rather than threatened. 

Arguments for an endangered listing 

69906 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 

included: the BRT’s statement that the 

Southern Residents are ‘‘at risk for 

extinction;’’ the high likelihood of 

extinction for some scenarios in the 

population viability analysis; the small 

population size; the susceptibility to 

catastrophic events; the fact that Canada 

and Washington State consider the 

Southern Residents endangered; 

comparisons to criteria used for other 

species of whales (for example, in the 

Recovery Plan for the North Atlantic 

Right Whale (Eubalaena 

glacialis)(NMFS, 2005)); criteria used by 

other organizations (for example, the 

World Conservation Union criterion that 

populations with fewer than 50 mature 

individuals are critically endangered 

(NMFS, 2004)); the recent fluctuations 

in abundance, including a significant 

decline; and the pervasive nature and 

uncertainty of the factors that may be 

causing population fluctuations or 

keeping the population at low levels of 

abundance. 

Response: In our proposed rule we 

acknowledged the factors pointing to a 

conclusion that Southern Resident killer 

whales are ‘‘in danger of extinction,’’

but also recognized the mitigating 

factors pointing instead to a conclusion 

that they are not yet in danger, though 

likely to become so in the foreseeable 

future. After balancing the conflicting 

factors, we gave greater weight to the 

mitigating factors and proposed a 

threatened determination. However, 

after considering information received 

during the comment period and peer 

review process, and re-analyzing the 

factors affecting the Southern Residents, 

we agree it is appropriate to give greater 

weight to the threats facing the Southern 

Resident DPS, and are now listing the 

DPS as endangered in this final rule. 

We continue to disagree that many of 

the reasons offered by commenters 

compel a finding under the ESA that the 

Southern Resident killer whale DPS is 

‘‘in danger of extinction’’ as opposed to 

‘‘likely to become an endangered 

species.’’ The BRT was not making a 

legal finding when it characterized the 

Southern Residents as ‘‘at risk for 

extinction.’’ Such a characterization is 

equally consistent with a determination 

that the population is likely to become 

an endangered species in the foreseeable 

future. Population viability analysis is a 

useful tool for many purposes, but 

should be used cautiously in making a 

determination that a given population is 

‘‘in danger of extinction,’’ as the peer 

reviewer observed, because of numerous 

uncertainties. While some of the 

scenarios had a high probability of 

extinction, others did not. We are also 

not persuaded that the small population 

size alone, its susceptibility to 

catastrophic events, or the comparison 

to other criteria (such as the IUCN or 

Right Whale criteria) compel a 

determination of ‘‘endangered.’’ The 

DPS we have delineated is likely 

naturally small, even at historical levels, 

and accordingly would always face 

some level of demographic, stochastic 

and catastrophic risks. The fact that 

other entities might classify the 

population in a certain way is useful 

information but does not determine the 

outcome of an inquiry under the 

standards of the ESA. 

Other information provided during 

the comment period and peer review 

process, however, compelled us to give 

greater weight to the threats facing the 

Southern Resident DPS than to the 

mitigating factors. The peer reviewer 

and others highlight the ongoing and 

potentially changing nature of pervasive 

threats, in particular, disturbance from 

vessels, the persistence of legacy toxins 

and the addition of new ones into the 

whales’ environment, and the potential 

limits on prey availability (primarily 

salmon) given uncertain future ocean 

conditions. The peer reviewer correctly 

observed that these risks are unlikely to 

decline (and are likely to increase) in 

the future. The small number of 

reproductive age males and high 

mortality rates for this group are also a 

concern. And while the population of 

Southern Residents is not naturally 

large, the intensity of the threats is 

increased by the small number of 

animals currently in the population. 

The combination of factors responsible 

for past population declines are unclear, 

may continue to persist and could 

worsen before conservation actions are 

successful, which could potentially 

preclude a substantial population 

increase. 

In sum, our analysis concluded that 

the risks to the Southern Resident killer 

whale DPS represent both ‘‘current 

[and] threatened destruction or 

modification of the species’ habitat,’’

and, to a lesser extent, ‘‘overutilization’’

both for commercial and recreational 

purposes that are likely contributing to 

the fluctuations in abundance and 

exacerbating the risk of extinction 

naturally faced by a small population. 

After reconsidering the statutory factors 

listed in section 4(a)(1) in light of the 

peer reviewer and public comments, 

and reevaluating our initial balancing of 

the risks and mitigating factors, we have 

determined that Southern Residents are 

‘‘in danger of extinction.’’

Comment 2: Several commenters and 

the peer reviewer suggested that critical 

habitat was necessary for the recovery of 

Southern Residents and urged NMFS to 

designate critical habitat for Southern 

Resident killer whales as soon as 

possible. Specific suggestions for critical 

habitat areas were general and included 

‘‘most of Puget Sound,’’ ‘‘Puget Sound 

and the Straits of Georgia and Juan de 

Fuca’’ and ‘‘all internal waters of 

Washington State.’’

Response: We concur that designating 

critical habitat is useful for the recovery 

of Southern Resident killer whales. In 

our proposal to list the Southern 

Resident DPS, we included information 

on potential physical and biological 

features that are essential to 

conservation and that may require 

special management considerations. We 

requested comments on the 

appropriateness of considering the 

suggested features to assist in 

developing a proposal for critical habitat 

designation. We have reviewed the 

comments provided and the best 

available scientific information on 

‘‘essential features’’, and we are 

developing a proposal for critical habitat 

for Southern Resident killer whales. 

Comment 3: Several commenters and 

the peer reviewer mentioned sound and 

its effects on killer whales, raising 

specific concerns about Navy activities 

and sonar use. One commenter noted 

that ‘‘noise’’ should be considered in 

identifying the essential features of 

critical habitat and another suggested 

that ESA section 7 consultations should 

be conducted on military actions, 

including Navy use of mid-frequency 

sonar. 

Response: The Proposed Conservation 

Plan for Southern Resident Killer 

Whales developed under the MMPA 

includes conservation measures to 

address potential effects of sound, 

including military sonar. Section 7(a)(2) 

of the ESA requires Federal agencies to 

consult with us to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of a listed species, or to 

destroy or adversely modify critical 

habitat. Once this listing becomes 

effective, Federal agencies must consult 

on actions that may affect Southern 

Resident killer whales. 

In our proposal to list the Southern 

Resident DPS, we included information 

on potential physical and biological 

features that are essential to 

conservation and that may require 

special management considerations. 

One of the potential essential features 

was ‘‘sound levels that do not exceed 

thresholds that inhibit communication 

or foraging activities or result in 

temporary or permanent hearing loss.’’

We are developing a proposed rule 

designating critical habitat which will 

provide additional detail on the 

essential features. 

Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 69907 

Comment 4: Several commenters 

raised whale watching vessels in 

particular as a threat to Southern 

Resident killer whales and made 

suggestions to address their potential 

effects. Suggestions included requiring 

distance limits of vessels to whales, 

reducing the number of vessels, 

addressing the impacts of vessels 

sounds, licensing commercial operators, 

establishing whale watching and 

protected zones, and increasing 

enforcement. 

Response: We presently have little 

information about the effects of vessel 

activity on killer whales. Whales may 

evade vessels near them, expending 

energy in the process. Vessel noise may 

interfere with communication among 

whales, or with their ability to locate 

prey. We are uncertain, however, about 

the extent to which these effects 

interfere with the survival and recovery 

of the Southern Residents. The MMPA 

prohibits ‘‘take’’ of marine mammals, 

which includes harassment, and 

existing agency guidelines recommend 

that vessel operators remain at least 100 

yards away from all whales, including 

Southern Resident killer whales, in 

order to avoid take. In some cases, 

operating a vessel in the vicinity of 

whales may result in a take. The 

Proposed Conservation Plan for 

Southern Resident Killer Whales 

acknowledges the data gaps for vessel 

effects and recommends monitoring 

vessel activity around the whales, and 

evaluating the adequacy of the existing 

guidelines and regulations. The Plan 

also announces our intention to 

consider new regulations regarding 

vessel operation around whales and/or 

the creation of protected areas. 

Comment 5: Several commenters 

noted the need for continued research to 

fill important data gaps to help guide 

management and conservation actions, 

particularly research on the Southern 

Residents’ winter range and feeding. 

Response: The Northwest Fisheries 

Science Center is conducting research 

on these and other high priority 

questions, and developing a long-term 

research plan to address the data gaps 

that exist for Southern Resident killer 

whales. The Proposed Conservation 

Plan for Southern Resident Killer 

Whales summarizes the needed research 

and monitoring actions. The Plan crossreferences specific conservation 

measures requiring additional research 

with the appropriate research actions. 

Comment 6: The peer reviewer 

commented that if extirpation of the 

Southern Residents would leave a 

significant gap in the range of North 

Pacific residents for purposes of meeting 

the ‘‘significance’’ prong of the DPS 

policy, their range must represent a 

‘‘significant portion of [the] range’’ of 

the unnamed North Pacific resident 

subspecies. The peer reviewer, 

therefore, considered the subspecies in 

danger of extinction ‘‘in a significant 

portion of its range,’’ warranting listing 

of the entire unnamed subspecies of 

North Pacific residents. 

Response: The reviewer’s observation 

addresses the similarities between the 

DPS policy’s criterion of ‘‘significance’’

and the statutory definition of an 

‘‘endangered species,’’ which 

encompasses a species that is ‘‘in danger 

of extinction in all or a significant 

portion of its range.’’ However, the 

statutory provision for listing units 

below the subspecies level (DPSs) gives 

us the authority and the discretion to 

list only that portion of a larger 

taxonomic unit that is actually at risk. 

Otherwise, whenever we find that a 

group of organisms constitutes a DPS by 

virtue of the fact that it is discrete and 

its extirpation would leave a significant 

gap in the range of the species or 

subspecies, we would be required to list 

the entire species or subspecies. This 

conclusion would be inapposite to the 

statutory provision that allows for 

listing of a DPS. 

In its initial status review and 

resulting report, the BRT considered the 

extinction risk of the combined 

populations of Southern, Northern, and 

Alaska Residents and concluded that 

the larger group had a zero extinction 

risk in 300 years under the most 

reasonable scenario (NMFS, 2002). It is 

therefore more reasonable to list only 

that portion of the subspecies that is at 

risk (i.e., the Southern Resident DPS), 

rather than the entire subspecies. 

Determination of Species under the 

ESA 

To be considered for listing under the 

ESA, a group of organisms must 

constitute a ‘‘species,’’ which is defined 

in section 3 of the ESA to include ‘‘any 

subspecies of fish or wildlife or plants, 

and any distinct population segment of 

any species of vertebrate fish or wildlife 

which interbreeds when mature.’’

Guidance on what constitutes a DPS is 

provided by the joint NMFS-U.S. Fish 

and Wildlife Service (FWS) interagency 

policy on vertebrate populations (61 FR 

4722; February 7, 1996). To be 

considered a DPS, a population, or 

group of populations, must be 

‘‘discrete’’ from other populations and 

‘‘significant’’ to the taxon (species or 

subspecies) to which it belongs. 

The 2004 BRT concluded that present 

data do not adequately support 

recognition of any new species, 

although multiple species of killer 

whales may exist and may be confirmed 

in the future. Accordingly, North Pacific 

transients and residents should be 

considered as belonging to a single 

species. The BRT agreed that the 

Southern and Northern Residents, as 

well as the resident killer whales of 

Southeast Alaska, Prince William 

Sound, Kodiak Island, the Bering Sea 

and Russia, likely comprise a subspecies 

that is distinct from the transients and 

offshore killer whale ecotypes in the 

North Pacific. The smallest likely taxon 

to which the Southern Residents belong 

would be resident killer whales in the 

North Pacific, an unnamed subspecies 

of O. orca. Under the DPS policy, the 

relevant issues, then, are whether the 

Southern Residents are discrete from 

other populations of, and significant to, 

this subspecies. 

Although we have limited genetic 

data, the available information indicates 

that Southern Residents are genetically 

distinct and that there is a high degree 

of reproductive isolation from other 

North Pacific resident killer whales 

(NMFS, 2004). Southern Resident killer 

whales have a core summer range that 

is spatially separate from other North 

Pacific Resident whales, including their 

closest neighbor, the Northern 

Residents. In addition, Southern 

Residents exhibit behaviors unique with 

respect to other North Pacific Residents. 

Southern Residents exhibit a distinct 

‘‘greeting’’ behavior. They have not been 

observed using rubbing beaches or 

taking fish from longline gear, behaviors 

which appear to be unique to other 

North Pacific Resident Populations. 

Based on range, demography and 

behavior, as well as genetics, the BRT 

determined that Southern Residents 

meet the criterion for ‘‘discreteness’’

under the DPS policy. 

The BRT also concluded that the 

Southern Residents are significant with 

respect to the North Pacific resident 

taxon based on evaluation of ecological 

setting, range, genetic differentiation, 

behavioral and cultural diversity. The 

Southern Residents are the only North 

Pacific residents to spend a substantial 

amount of time in the California Current 

ecosystem and appear to occupy an 

ecological setting distinct from other 

North Pacific resident populations. Loss 

of the Southern Residents would result 

in a gap in the range of the North Pacific 

residents. The Southern Residents differ 

markedly from other North Pacific 

Residents populations at both nuclear 

and mitochondrial genes. In addition, 

there are differences in cultural 

traditions, and the Southern Residents 

may have unique knowledge of the 

timing and location of salmon runs in 

69908 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 

the southern part of the range of North 

Pacific residents. 

The BRT concluded that Southern 

Residents were discrete and significant, 

and therefore should be considered a 

DPS. The Southern Resident DPS of the 

unnamed subspecies of North Pacific 

resident killer whales was the unit we 

evaluated for risk of extinction and 

proposed for ESA listing in December 

2004. 

Summary of Factors Affecting the DPS 

and Viability Assessment 

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

listing regulations (50 CFR part 424) set 

forth considerations for listing species. 

We must list a species if it is 

endangered or threatened because of 

any one or a combination of the 

following factors: (1) the present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (2) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (3) disease or predation; (4) 

inadequacy of existing regulatory 

mechanisms; or (5) other natural or 

human-made factors affecting its 

continued existence. 

The 2004 BRT identified the factors 

that currently pose a risk for Southern 

Residents and discussed whether they 

might continue in the future. Concern 

remains about whether reduced quantity 

or quality of prey are affecting the 

Southern Resident population. In 

addition, levels of organochlorine 

contaminants are not declining 

appreciably and those of many ‘‘newly 

emerging’’ contaminants (e.g., 

brominated flame retardants) are 

increasing, so Southern Residents are 

likely at risk for serious chronic effects 

similar to those demonstrated for other 

marine mammal species (e.g., immune 

and reproductive system dysfunction). 

Other important risk factors that may 

continue to impact Southern Residents 

are sound and disturbance from vessel 

traffic as well as oil spills. The Proposed 

Conservation Plan for Southern 

Resident Killer Whales, developed 

under the MMPA, provides a more 

detailed discussion of the potential risk 

factors (70 FR 57565; October 3, 2005). 

Present or Threatened Destruction, 

Modification, or Curtailment of Habitat 

or Range 

Several factors have modified the 

Southern Residents’ habitat, including 

contaminants, vessel traffic, and 

changes in prey availability. Salmon 

populations have declined due to 

degradation of aquatic ecosystems 

resulting from modern land use changes 

(e.g., agriculture, hydropower, urban 

development), harvest and hatchery 

practices. Beginning in the early 1990s, 

27 ESUs of salmon and steelhead in 

Washington, Oregon, Idaho, and 

California have been listed as threatened 

or endangered under the ESA. 

Reductions in prey availability may 

force the whales to spend more time 

foraging, and could lead to reduced 

reproductive rates and higher mortality. 

Despite the enactment of modern 

pollution controls in recent decades, 

studies have documented high levels of 

PCBs and DDTs in Southern Resident 

killer whales (Ross et al., 2000, Ylitalo 

et al., 2001). These and other chemical 

compounds have the ability to induce 

immune suppression, reproductive 

impairment, and other physiological 

effects, as observed in studies on other 

marine mammals. In addition, high 

levels of ‘‘newly emerging’’

contaminants, such as PBDEs (flame 

retardants), that may have similar 

negative effects have been found in 

killer whales and have an expanding 

presence in the environment (Rayne et 

al., 2004). 

Commercial shipping, whale 

watching, ferry operations, and 

recreational boating traffic have 

expanded in recent decades. Several 

studies have linked vessels with shortterm behavioral changes in Northern 

and Southern Resident killer whales 

(Kruse, 1991; Kriete, 2002; Williams et 

al., 2002a; 2002b; Foote et al., 2004). 

Potential impacts from vessels and 

sound are poorly understood and may 

affect foraging efficiency, 

communication, and/or energy 

expenditure through physical presence 

or increased underwater sound levels or 

both. Collisions with vessels are also a 

potential source of injury. 

Overutilization for commercial, 

recreational, scientific, or educational 

purposes 

The capture of killer whales for public 

display during the 1970s likely 

depressed their population size and 

altered the population characteristics 

sufficiently to severely affect their 

reproduction and persistence (Olesiuk 

et al., 1990). However, there have not 

been any removals for public display 

since the 1970s. Whale watching can be 

considered a form of utilization of 

Southern Resident killer whales. Under 

existing prohibitions on take under the 

MMPA, commercial and recreational 

whale watching must be conducted 

without causing harassment of the 

whales. While NMFS, commercial 

whale watch operators, and 

nongovernmental organizations have 

developed guidelines to educate boaters 

on how to avoid harassment, there are 

still concerns regarding compliance 

with the guidelines and potential 

violations of the MMPA, increased 

numbers of vessels engaged in whale 

watching, and cumulative effects on the 

whales. 

Disease or Predation 

While disease has not been implicated 

in the recent decline of Southern 

Resident killer whales, high 

contaminant levels may be affecting 

immune function in the whales, 

increasing their susceptibility to 

disease. The cohesive social structure 

and presence of all whales in a localized 

area at one time also has implications 

should a disease outbreak occur. 

Inadequacy of Existing Regulatory 

Mechanisms 

Current levels of contaminants in the 

environment indicate that previous 

regulatory mechanisms were not 

sufficient to protect killer whales. While 

the use of PCBs and DDT is prohibited 

under existing regulations, they persist 

in the environment, possibly for 

decades, and are also transported via 

oceans and the atmosphere from areas 

where their use has not been banned. In 

addition, there are new emerging 

contaminants that may have similar 

negative effects that are not currently 

regulated. 

Other Natural or Human-Made Factors 

Affecting Continued Existence 

Due to its proximity to Alaska’s crude 

oil supply, Puget Sound is one of the 

leading petroleum refining centers in 

the U.S. with about 15 billion gallons of 

crude oil and refined petroleum 

products transported through it 

annually (Puget Sound Action Team, 

2005). In marine mammals, acute 

exposure to petroleum products can 

cause changes in behavior and reduced 

activity, inflammation of mucous 

membranes, lung congestion, 

pneumonia, liver disorders and 

neurological damage (Geraci and St. 

Aubin, 1990). The Exxon Valdez oil 

spill was identified as a potential source 

of mortality for resident and transient 

killer whales in Prince William Sound, 

Alaska (Dahlheim and Matkin, 1994) 

and has raised concerns about potential 

implications for Southern Residents, 

particularly if the entire population is 

together in the vicinity of a spill. In 

addition, there may be additional 

anthropogenic factors that have not yet 

been identified as threats for Southern 

Resident killer whales, particularly in 

their winter range which is not well 

known. 

Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 69909 

Viability Analysis 

The BRT conducted a population 

viability analysis (PVA) to synthesize 

the potential biological consequences of 

a small population size, a slowly 

increasing or a declining population 

trend, and the potential risk factors 

identified above. The probability of the 

Southern Resident population becoming 

extinct was estimated using 

demographic information from the 

yearly census through 2003. The most 

optimistic model (29–year data set) 

predicted that the probability of 

Southern Residents becoming extinct 

(that is, no surviving animals) was less 

than 0.1 to 3 percent in 100 years and 

2 to 42 percent in 300 years. Using the 

most pessimistic model (the last 10 

years of data), the probability of meeting 

a quasi-extinction threshold (that is, 

such a small number of animals in the 

population that they could not 

reasonably be expected to persist), the 

probability of meeting the threshold 

ranged from 39 to 67 percent in 100 

years to 76 to 98 percent in 300 years. 

For both scenarios, the higher 

percentages in each range were 

associated with higher probability and 

magnitude of potential catastrophic 

mortality events (such as oil spills), as 

well as with a smaller carrying capacity 

(that is, assuming the habitat can only 

support a population of 100 whales). 

The BRT modeled combinations of a 

variety of parameters, some of which are 

unknown and difficult to estimate or 

predict (such as carrying capacity and 

probability of catastrophic mortality, 

respectively). Accordingly, multiple 

scenarios were analyzed in order to 

understand how these parameters 

would affect the probability that the 

population would become extinct. For 

the unknown or uncertain parameters, 

the BRT used a range of inputs in the 

model, and this resulted in a range of 

results. Where the analyses produced 

high probabilities of extinction, these 

were associated with the highest levels 

of potential catastrophic mortality, 

small carrying capacity, and the use of 

only a subset of available data. 

Scenarios incorporating the most 

optimistic parameters produced 

probabilities of extinction that were 

low, but not insignificant. However, 

there is no indication that the optimistic 

scenario is the most likely. Therefore, 

the PVA extinction probabilities, even 

under the most optimistic conditions, 

indicate that Southern Resident killer 

whales are at risk of extinction. 

Overall, the BRT was concerned about 

the viability of the Southern Resident 

DPS and concluded that it is at risk of 

extinction because of either small-scale 

impacts over time (e.g., reduced 

fecundity or subadult survivorship) or a 

major catastrophe (e.g., disease outbreak 

or oil spill). Additionally, the small 

population size of this killer whale DPS 

makes it potentially vulnerable to Allee 

effects (e.g., inbreeding depression) that 

could cause a further decline. The small 

number of breeding males, as well as 

possible reduced fecundity and 

subadult survivorship in the L-pod, may 

limit the population’s potential for rapid 

growth in the near future. Although the 

Southern Resident DPS has 

demonstrated the ability to recover from 

lower levels in the past and has shown 

an increasing trend over the last several 

years, the factors responsible for the 

decline are unclear (NMFS, 2002; 

NMFS, 2004). These factors may still 

exist and may continue to persist, which 

could potentially preclude a substantial 

population increase. 

Efforts Being Made to Protect Southern 

Resident Killer Whales 

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

the Secretary to make listing 

determinations solely on the basis of the 

best scientific and commercial data 

available after taking into account 

efforts being made to protect a species. 

Therefore, in making ESA listing 

determinations, we first identify factors 

that have led to a species or DPS decline 

and assess the level of extinction risk. 

We then assess existing efforts being 

made to protect the species to determine 

if those measures ameliorate the risks 

faced by the DPS. 

In judging the efficacy of existing 

protective efforts, we rely on the joint 

NMFS-FWS ‘‘Policy for Evaluation of 

Conservation Efforts When Making 

Listing Decisions’’ (‘‘PECE;’’ 68 FR 

15100; March 28, 2003). PECE provides 

direction for the consideration of 

protective efforts identified in 

conservation agreements, conservation 

plans, management plans, or similar 

documents (developed by Federal 

agencies, state and local governments, 

Tribal governments, businesses, 

organizations, and individuals) that 

have not yet been implemented, or have 

been implemented but have not yet 

demonstrated effectiveness. The policy 

articulates several criteria for evaluating 

the certainty of implementation and 

effectiveness of protective efforts to aid 

in determination of whether a species 

warrants listing as threatened or 

endangered. 

The Southern Resident killer whale 

stock was designated as depleted under 

the MMPA, and a Conservation Plan is 

under development. A Proposed 

Conservation Plan for Southern 

Resident Killer Whales providing 

conservation measures, research and 

monitoring tasks intended to restore the 

population was released for public 

comment on October 3, 2005 (70 FR 

57565). In addition to the conservation 

planning process, NMFS has responded 

to requests for immediate conservation 

actions by implementing and supporting 

several programs. Working in 

partnerships with The Seattle Aquarium 

and The Whale Museum in Friday 

Harbor, Washington, we have supported 

education, outreach, and stewardship 

activities in order to increase public 

awareness about the conservation status 

and needs of killer whales. To promote 

responsible viewing of killer whales, we 

have also provided support for 

additional hours of on-water 

stewardship through the Soundwatch 

program and enforcement presence 

through the Washington Department of 

Fish and Wildlife (WDFW). 

On April 3, 2004, the Washington 

Fish and Wildlife Commission added 

Washington State’s killer whale 

population to the list of the state’s 

endangered species. The state 

endangered designation is given to 

native Washington species that are 

seriously threatened with extinction 

throughout all or a significant portion of 

that range within the state (WAC 232–

12–297). The designation directs special 

management attention and priority to 

recover the species in Washington. 

WDFW is working with us on 

conservation strategies for killer whales. 

Southern Resident killer whales are 

listed as endangered and Northern 

Residents are listed as threatened under 

Canada’s Species at Risk Act (SARA). 

Under SARA ‘‘endangered species’’

means a wildlife species that is facing 

imminent extirpation or extinction and 

‘‘threatened species’’ means a wildlife 

species that is likely to become an 

endangered species if nothing is done to 

reverse the factors leading to its 

extirpation or extinction. Canada’s 

Department of Fisheries and Oceans has 

convened a Recovery Team, which 

includes WDFW and NMFS staff 

members, and has released a Draft 

Recovery Strategy for Southern and 

Northern Resident Whales under SARA 

(DFO, 2005). 

In addition to conservation and 

recovery planning efforts, our Northwest 

Fisheries Science Center (NWFSC) is 

engaged in an active research program 

for Southern Resident killer whales. 

Research that is currently being 

conducted is designed to fill identified 

data gaps and to improve our 

understanding of the risk factors that 

may be affecting the decline or recovery 

of the Southern Resident killer whales. 

The new information from research will 

69910 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 

be used to enhance our understanding 

of the risk factors affecting recovery, 

thereby improving our ability to develop 

and evaluate the effectiveness of 

management measures. 

In addition to protective efforts for 

Southern Resident killer whales, there 

are a number of protective efforts 

underway for West Coast salmonid 

Evolutionarily Significant Units (ESUs). 

NMFS recently announced its intent to 

develop recovery plans for listed Pacific 

salmon ESUs (70 FR 39231; July 7, 

2005). Considerable progress has been 

made for several watershed areas 

already, and a draft recovery plan for 

Puget Sound Chinook was submitted to 

the agency by Shared Strategy for Puget 

Sound. The draft plan (written by 

Shared Strategy, the non-profit group 

that represents broad salmon recovery 

interests in the region) is part of what 

will be a dozen more watershed-level 

recovery plans that will eventually form 

the foundation for NMFS’s own 

comprehensive, regional plan for 

salmon and steelhead in the Northwest. 

Informed by the public comments 

received and based on our review of 

existing protective efforts, we conclude 

that collective efforts do not provide 

sufficient certainty of implementation 

and effectiveness to substantially 

ameliorate the level of assessed 

extinction risk for Southern Resident 

killer whales. While we acknowledge 

that many of the ongoing protective 

efforts are likely to promote the 

conservation of listed killer whales and 

their prey, most efforts are relatively 

recent and thus untested, some are 

voluntary, and many will require 

research results to fill important data 

gaps before we can evaluate their 

effectiveness. We conclude that existing 

protective efforts lack the certainty of 

implementation and effectiveness to 

preclude listing Southern Resident 

killer whales, particularly in light of the 

uncertainties regarding the risk factors. 

Nonetheless, we will continue to 

encourage these and other future 

protective efforts, and we will continue 

to collaborate with international, tribal, 

Federal, state, and local entities to 

promote and improve efforts being made 

to protect the Southern Resident killer 

whales and their prey. 

Summary of Changes from Proposed 

Listing Determination 

The only change from the proposed 

listing determination is that we are 

listing the Southern Resident killer 

whale DPS as an endangered species, 

rather than a threatened species. 

Final Listing Determination 

The ESA defines an endangered 

species as any species in danger of 

extinction throughout all or a significant 

portion of its range, and a threatened 

species as any species likely to become 

an endangered species in the foreseeable 

future throughout all or a portion of its 

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

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

the listing determination be based solely 

on the best scientific and commercial 

data available, after conducting a review 

of the status of the species and after 

taking into account those efforts, if any, 

being made by any state or foreign 

nation to protect and conserve the 

species. 

We reviewed the petition, the reports 

of the BRT (NMFS, 2002, 2004), comanager comments, Cetacean 

Taxonomy workshop papers and 

reports, other available published and 

unpublished information, and 

comments received in response to the 

proposed listing determination. We 

consulted with species experts and 

other individuals familiar with killer 

whales. On the basis of the best 

available scientific and commercial 

information available, we conclude that 

the Southern Resident killer whale DPS 

is in danger of extinction. 

In December 2004, we proposed to list 

the Southern Resident killer whale DPS 

as ‘‘threatened.’’ We identified several 

risks to the Southern Residents’

viability, including ‘‘the population 

decline from 1996–2001, the limited 

number of reproductive age males, the 

presence of females of reproductive age 

that are not having calves, and that the 

factors for the decline may continue to 

persist.’’ We also expressed concern 

about the small population size, which 

makes the whales susceptible to 

demographic and stochastic risks 

(genetic inbreeding or genetic drift, and 

natural variations in population size or 

composition). The small population 

size, combined with their socially 

cohesive nature, also makes them 

susceptible to catastrophic risks, such as 

oil spills or a disease outbreak. We also 

cited mitigating factors such as the 

small population increase in the past 

several years and the presence of males 

and females that would reach sexual 

maturity in the coming years. In 

balancing the risks against the 

mitigating factors, we concluded the 

Southern Resident killer whale DPS was 

not presently ‘‘in danger of extinction,’’

but was likely to become so in the 

foreseeable future. 

We have reconsidered the relative 

weight we gave the risk factors and the 

mitigating factors in formulating our 

proposal, in light of information and 

analysis received during the comment 

period, and now find the Southern 

Resident killer whale DPS ‘‘in danger of 

extinction.’’

As described in the Summary of 

Factors affecting the DPS and more fully 

in the ‘‘Proposed Conservation Plan for 

Southern Resident Killer Whales,’’

contaminants such as organochlorines 

and brominated flame retardants 

continue to be discharged into the 

environment, persist for decades, and 

are known to accumulate in top 

predators, including killer whales. 

Southern Residents are likely at risk for 

serious chronic effects similar to those 

demonstrated for other marine mammal 

species, such as immune and 

reproductive system dysfunction. All 

current members of the Southern 

Resident killer whale DPS that have 

been tested have high levels of toxins in 

their tissues, and these levels are not 

likely to significantly decrease over 

their life spans. 

Southern Residents are also at risk 

because of sound and disturbance from 

vessel traffic in Puget Sound, a factor 

that is likely to increase in the future. 

Trends in salmonid populations and 

recent cycles of ocean conditions 

resulting in lowered salmon abundance 

(the Southern Residents’ main prey) are 

also a likely factor in declines in the 

Southern Resident killer whale 

population. The destruction or 

modification of the whales’ habitat (and, 

to a lesser extent, their overutilization 

for commercial and recreational 

purposes) through disturbance from 

vessels, the persistence of legacy toxins 

and the addition of new ones into the 

whales’ environment, and the potential 

limits on prey availability (primarily 

salmon) given uncertain future ocean 

conditions, puts them in danger of 

extinction. The individual and 

cumulative effects of the threats are 

more pronounced due to the small size 

of the population and the fluctuations in 

its abundance. 

Although a number of protective 

efforts are underway for both Southern 

Resident killer whales and their prey, 

we conclude that existing protective 

efforts lack the certainty of 

implementation and effectiveness to 

change our conclusion about the risk to 

Southern Resident killer whales, 

particularly in light of the uncertainties 

regarding the risk factors. Based on the 

best scientific and commercial data 

available, the comments received, and 

after taking into account efforts being 

made to protect Southern Resident killer 

whales, we are listing the Southern 

Resident DPS as endangered. The 

Southern Resident killer whale DPS will 

Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 69911 

be listed under the ESA as endangered 

as of the effective date of this rule. The 

Southern Resident killer whale DPS 

does not include killer whales from J, K 

or L pod placed in captivity prior to 

listing, nor does it include their captive 

born progeny. 

Prohibitions and Protective Measures 

Section 9 of the ESA prohibits certain 

activities that directly or indirectly 

affect endangered species. These 

prohibitions apply to all individuals, 

organizations and agencies subject to 

U.S. jurisdiction. 

Sections 7(a)(2) of the ESA requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of a listed species, or to 

adversely modify critical habitat. If a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency must enter 

into consultation with us. 

Examples of Federal actions that may 

affect Southern Resident killer whales 

include coastal development, oil and 

gas development, seismic exploration, 

point and non-point source discharge of 

persistent contaminants, contaminated 

waste disposal, adoption of water 

quality standards, regulation of newly 

emerging chemical contaminants, vessel 

operations and noise level standards 

and fishery management practices. 

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

ESA provide us with authority to grant 

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

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

scientific research and enhancement 

permits may be issued to entities 

(Federal and non-Federal) for scientific 

purposes or to enhance the propagation 

or survival of a listed species. Activities 

potentially requiring a section 

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

permit include scientific research that 

targets killer whales. 

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

permits may be issued to non-Federal 

entities performing activities that may 

incidentally take listed species, as long 

as the taking is incidental to, and not 

the purpose of, the carrying out of an 

otherwise lawful activity. Activities 

potentially requiring a section 

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

include scientific research not targeting 

killer whales that incidentally takes 

Southern Resident killer whales. 

Our Policies on Endangered and 

Threatened Wildlife 

On July 1, 1994, we and FWS 

published a series of policies regarding 

listings under the ESA, including a 

policy for peer review of scientific data 

(59 FR 34270) and a policy to identify, 

to the maximum extent possible, those 

activities that would or would not 

constitute a violation of section 9 of the 

ESA (59 FR 34272). 

Identification of Those Activities That 

Would Constitute a Violation of Section 

9 of the ESA 

NMFS and FWS published in the 

Federal Register on July 1, 1994 (59 FR 

3472), a policy that NMFS shall 

identify, to the maximum extent 

practicable at the time a species is 

listed, those activities that would or 

would not constitute a violation of 

section 9 of the ESA. The intent of this 

policy is to increase public awareness of 

the effect of our ESA listing on proposed 

and ongoing activities within the 

species’ range. At the time of the final 

rule, NMFS must identify to the extent 

known, specific activities that will not 

be considered likely to result in 

violation of section 9, as well as 

activities that will be considered likely 

to result in violation. We believe that, 

based on the best available information, 

the following actions will not result in 

a violation of section 9: 

1. Federally funded or approved 

projects for which ESA section 7 

consultation has been completed, and 

that are conducted in accordance with 

any terms and conditions we provide in 

an incidental take statement 

accompanying a biological opinion. 

2. Takes of killer whales that we 

authorize pursuant to section 10 of the 

ESA. 

There are many activities that we 

believe could potentially ‘‘take’’

Southern Resident killer whales. 

Activities that we believe could result in 

violation of section 9 prohibitions 

against ‘‘take’’ of the Southern Resident 

killer whale DPS include, but are not 

limited to, the following: 

1. Coastal development that adversely 

affects Southern Resident killer whales 

(e.g., dredging, land clearing and 

grading, waste treatment/disposal, pile 

driving). 

2. Discharging or dumping toxic 

chemicals or other pollutants into areas 

used by Southern Resident killer 

whales. 

3. Operating vessels in a manner that 

disrupts foraging, resting or care for 

young, results in noise levels that 

disrupt foraging, communication, 

resting or care for young, or has the 

potential to cause injury to individuals 

or groups of whales. 

4. Land/water use or fishing practices 

that result in reduced availability of 

prey species during periods when 

Southern Resident killer whales are 

present. 

These lists are not exhaustive. They 

are intended to provide some examples 

of the types of activities that we might 

consider as constituting a take of 

Southern Resident killer whales under 

the ESA and its implementing 

regulations. Questions regarding 

whether specific activities will 

constitute a violation of the section 9 

take prohibition, and general inquiries 

regarding prohibitions and permits, 

should be directed to NMFS (see 

ADDRESSES). 

Effective Date of the Final Listing 

Determination 

We recognize that numerous parties 

may be affected by the listing of the 

Southern Resident killer whale DPS 

under the ESA. To permit an orderly 

implementation of the consultation 

requirements applicable to endangered 

species, the final listing will take effect 

on February 16, 2006 (see DATES). 

Critical Habitat 

Critical habitat is defined in section 3 

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

specific areas within the geographical 

area occupied by the species, at the time 

it is listed in accordance with the ESA, 

on which are found those physical or 

biological features (a) essential to the 

conservation of the species and (b) 

which may require special management 

considerations or protection; and (2) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination that 

such areas are essential for the 

conservation of the species. 

‘‘Conservation’’ means the use of all 

methods and procedures needed to 

bring the species to the point at which 

listing under the ESA is no longer 

necessary. 

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

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

the extent prudent and determinable, 

critical habitat be designated 

concurrently with the listing of a 

species. Designations of critical habitat 

must be based on the best scientific data 

available and must take into 

consideration the economic, national 

security, and other relevant impacts of 

specifying any particular area as critical 

habitat. Once critical habitat is 

designated, section 7 of the ESA 

requires Federal agencies to ensure that 

they do not fund, authorize or carry out 

any actions that are likely to destroy or 

adversely modify that habitat. This 

requirement is in addition to the section 

7 requirement that Federal agencies 

ensure that their actions do not 

jeopardize the continued existence of 

listed species. 

69912 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations 

In our proposal to list the Southern 

Resident DPS, we included information 

on potential physical and biological 

features that are essential to 

conservation and that may require 

special management considerations. We 

requested comments on the 

appropriateness of considering the 

suggested features to assist in 

developing a proposal for critical habitat 

designation. We have reviewed the 

comments provided and the best 

available scientific information on 

‘‘essential features’’, and will initiate 

rulemaking to designate critical habitat. 

Classification 

National Environmental Policy Act 

(NEPA) 

ESA listing decisions are exempt from 

the requirements to prepare an 

environmental assessment or 

environmental impact statement under 

the NEPA. See NOAA Administrative 

Order 216–6.03(e)(1) and Pacific Legal 

Foundation v. Andrus, 675 F. 2d 825 

(6th Cir. 1981). Thus, we have 

determined that the final listing 

determination for the Southern Resident 

killer whale DPS described in this 

notice is exempt from the requirements 

of the NEPA of 1969. 

Executive Order (E.O.) 12866, 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this rule is 

exempt from review under E.O. 12866. 

This proposed rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

E.O. 13084- Consultation and 

Coordination with Indian Tribal 

Governments 

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 final rule does not 

impose substantial direct compliance 

costs on the communities of Indian 

tribal governments. Accordingly, the 

requirements of section 3(b) of E.O. 

13084 do not apply to this final rule. 

Nonetheless, we will continue to inform 

potentially affected tribal governments, 

solicit their input, and coordinate on 

future management actions. 

E.O. 13132 - Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific directives for 

consultation in situations where a 

regulation will preempt state law or 

impose substantial direct compliance 

costs on state and local governments 

(unless required by statute). Neither of 

those circumstances is applicable to this 

final rule. In keeping with the intent of 

the Administration and Congress to 

provide continuing and meaningful 

dialogue on issues of mutual state and 

Federal interest, the proposed rule was 

provided to the relevant state agencies 

in each state in which the species is 

believed to occur, and these agencies 

were invited to comment. We have 

conferred with the State of Washington 

in the course of assessing the status of 

Southern Resident killer whales, and 

considered, among other things, state 

and local conservation measures. 

Washington has listed killer whales 

under the Washington Administrative 

Code 232–12–014 and is coordinating 

with us to develop a Conservation Plan. 

References 

A list of references cited in this notice 

is available upon request (see 

ADDRESSES) or via the Internet at http:// 

www.nwr.noaa.gov. Additional 

information, including agency reports 

and written comments, is also available 

at this Internet address. 

List of Subjects in 50 CFR Part 224 

Endangered marine and anadromous 

species. 

Dated: November 10, 2005. 

William T. Hogarth, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 224 is amended 

as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 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. 

■ 2. In § 224.101, paragraph (b), add the 

following to the List of Endangered 

Marine and Anadromous Species, in 

alphabetical order under MARINE 

MAMMALS: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(b) Marine mammals.* * * Killer 

whale (Orcinus orca), Southern 

Resident distinct population segment, 

which consists of whales from J, K and 

L pods, wherever they are found in the 

wild, and not including Southern 

Resident killer whales placed in 

captivity prior to listing or their captive 

born progeny; * * * 

* * * * * 

[FR Doc. 05–22859 Filed 11–17–05; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[I.D. 110905G] 

Fraser River Sockeye Salmon 

Fisheries; Inseason Orders 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

orders. 

SUMMARY: NMFS publishes the Fraser 

River salmon inseason orders regulating 

salmon fisheries in U.S. waters. The 

orders were issued by the Fraser River 

Panel (Panel) of the Pacific Salmon 

Commission (Commission) and 

subsequently approved and issued by 

NMFS during the 2005 salmon fisheries 

within the U.S. Fraser River Panel Area. 

These orders established fishing times 

and areas for the gear types of U.S. 

treaty Indian and all-citizen fisheries 

during the period the Panel exercised 

jurisdiction over these fisheries. 

DATES: Each of the following inseason 

actions was effective upon 

announcement on telephone hotline 

numbers as specified at 50 CFR 

300.97(b)(1); those dates and times are 

listed herein. Comments will be 

accepted through December 5, 2005. 

ADDRESSES: Comments may be mailed to 

D. Robert Lohn, Regional Administrator, 

Northwest Region, NMFS, 7600 Sand 

Point Way N.E., BIN C15700-Bldg. 1, 

Seattle, WA 98115–0070. Information 

relevant to this document is available 

for public review during business hours 

at the office of the Regional 

Administrator, Northwest Region, 

NMFS. 

Comments can also be submitted via 

e-mail at the