        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        RIN 0648-BG19
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 45

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

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          The Gulf of Mexico (Gulf) Fishery Management Council (Council) has submitted Amendment 45 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) for review, approval, and implementation by NMFS. Amendment 45 would extend the sunset date of the red snapper sector separation measures for an additional 5 years, through the end of the 2022 fishing year. The intent of Amendment 45 is to extend the sector separation measures to allow the Council more time to consider and possibly develop alternative management strategies within the Gulf red snapper recreational sector.

          DATES:
          Written comments must be received on or before October 24, 2016.

          ADDRESSES:
          You may submit comments on the amendment identified by “NOAA-NMFS-2016-0089” by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0089, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Amendment 45, which includes an environmental assessment, a fishery impact statement, a Regulatory Flexibility Act analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:

          Peter Hood, Southeast Regional Office, NMFS, telephone: 727-824-5305; email: Peter.Hood@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any fishery management plan or amendment to any plan to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or plan amendment, publish an announcement in the Federal Register notifying the public that the plan or plan amendment is available for review and comment.
        The FMP being revised by Amendment 45 was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.
        Background
        Amendment 40 to the FMP separated the Federal recreational red snapper sector as a way to provide the basis for increased flexibility in future management as well as minimize the chance for recreational quota overruns, which could jeopardize the rebuilding of the red snapper stock (80 FR 22422, April 22, 2015). Amendment 40 established sector separation by defining distinct private angling and Federal for-hire (charter vessel and headboat) components within the recreational sector of those who fish for red snapper, allocated red snapper resources between the components, and established component-specific accountability measures through the use of component annual catch targets to project recreational fishing season lengths. Amendment 40 defined the Federal for-hire component as including operators of vessels with Federal charter vessel/headboat permits for Gulf reef fish and their angler clients. The private angling component was defined as including anglers fishing from private vessels and state-permitted for-hire vessels.
        Amendment 40 also applied a 3-year sunset provision for the regulations implemented through its final rule. The sunset provision maintained the measures for sector separation through the end of the 2017 fishing year, on December 31, 2017. The 3-year sunset provision was included to provide an incentive for the Council to continue to evaluate alternative management measures or programs for the recreational sector. Unless modified, after the 2017 fishing year, on January 1, 2018, the management measures implemented through Amendment 40 will expire and the recreational sector will be managed as a single entity. The Council is currently working to develop and approve other amendments to address the management of the charter and headboat fishing within the Federal for-hire component (Amendments 41 and 42 to the FMP, respectively). The development of these amendments is taking longer than the Council anticipated, and if approved by NMFS, would likely not be effective until after the sector separation provisions expire on December 31, 2017. Therefore, the Council determined there was a need to extend the sunset provision for an additional 5 years past the original sunset date.
        Management Measure Contained in Amendment 45
        Amendment 45 would extend the 3-year sunset provision for the separation of the Federal for-hire and private angling recreational components for Gulf red snapper and associated management measures for an additional 5 years. If implemented, this would extend Gulf recreational red snapper sector separation through the end of the 2022 fishing year, on December 31, 2022, rather than the current sunset date of December 31, 2017. Beginning on January 1, 2023, the red snapper recreational sector would be managed as a single entity without the separate Federal for-hire and private angling components. The Council would need to take further action for these recreational components and management measures to extend beyond the 5-year extension proposed in Amendment 45.

        A proposed rule that would implement Amendment 45 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating Amendment 45 to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If the determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Consideration of Public Comments
        The Council has submitted Amendment 45 for Secretarial review, approval, and implementation. Comments on Amendment 45 must be received by October 24, 2016. Comments received during the respective comment periods, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, partially approve, or disapprove Amendment 45. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: August 22, 2016.
          Emily H. Menashes,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2016-20404 Filed 8-24-16; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Part 225
        [Docket No. FRA-2006-26173, Notice No. 2]
        RIN 2130-AB82
        Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of public hearing and extension of comment period.

          SUMMARY:
          By notice of proposed rulemaking (NPRM) published on September 9, 2008 (73 FR 52496), FRA proposed revisions to its regulations governing railroad accident/incident recording and reporting. This document announces a public hearing to provide interested parties the opportunity to comment on the NPRM and announces a thirty (30) day extension of the comment period, which closed November 10, 2008, to commence on the date of the public hearing. This extension provides interested parties the opportunity to comment on the NPRM and to respond to matters that arise at the public hearing related to the NPRM.

          DATES:
          (1) Public Hearing: A public hearing will be held on the date and at the location listed below to provide interested parties the opportunity to comment on the proposed revisions contained in the NPRM. A thirty (30) day extension of the comment period will commence on the date of the hearing. The date of the public hearing is as follows:
          Thursday, December 18, 2008, at 8:30 a.m. in Washington, DC.
          (2) Extension of Comment Period: The comment period will reopen Thursday, December 18, 2008 and written comments must be received by Friday, January 16, 2009. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.

          ADDRESSES:
          (1) Public Hearing: The public hearing will be held at the following location:
          Washington, DC: Four Points by Sheraton, 1201 K Street, NW., Washington, DC 20005.
          (2) Extension of Comment Period: Comments related to Docket No. FRA-2006-26173, may be submitted by any of the following methods:
          1. Web site: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the Web site's online instructions for submitting comments.
          2. Fax: 202-493-2251.
          3. Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590.
          4. Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.
          (3) Public Hearing Participants: Written notification of intent to participate in the public hearing and copies of oral statements must be submitted to the FRA Docket Clerk at FRA Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590 or faxed to (202) 493-2251.

          FOR FURTHER INFORMATION CONTACT:
          Arnel B. Rivera, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, Federal Railroad Administration, 1200 New Jersey, SE., Washington, DC 20590 (telephone 202-493-1331); or Gahan Christenson, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey, SE., Washington, DC 20590 (telephone 202-493-1381).

        SUPPLEMENTARY INFORMATION:

        FRA has received written comments submitted by interested parties related to various parts of the NPRM and a written request for a hearing on the NPRM. The purpose of the public hearing is to permit the exchange of information and concerns regarding FRA's proposed amendments. The public hearing is meant to allow interested parties to fully develop and articulate the issues and concerns they have with the NPRM so that these concerns can be fully addressed in any final rule that is developed. Interested parties are invited to present oral statements and proffer evidence at the hearing. The hearing will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearing will be non-adversarial proceeding; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements have been completed, those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearing, will be announced at the hearing.
        On December 18, 2008, the comment period for the NPRM will reopen for thirty (30) days so that the FRA can make the public hearing transcript available for review and comment by the general public, interested parties can provide additional comments and documents related to the NPRM, and interested parties can provide responses to matters that arise at the public hearing.
        Public Participation Procedures

        Any person wishing to participate in the public hearing should notify the FRA Docket Clerk by mail at the address or by fax at the number provided in the ADDRESSES section at least five (5) working days prior to the date of the hearing and submit three copies of the oral statement that he or she intends to make at the proceeding. The notification should identify the party the person represents, and the particular subject(s) the person plans to address. The notification should also provide the FRA Docket Clerk with the participant's mailing address and other contact information. FRA reserves the right to limit participation in the hearings of persons who fail to provide such notification.
        Privacy Act

        FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

          Issued in Washington, DC, on November 24, 2008.
          Grady C. Cothen, Jr.,
          Deputy Associate Administrator for Safety Standards and Program Development.

       [FR Doc. E8-28443 Filed 11-26-08; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R4-ES-2018-0035; FXES11130900000C2-189-FF09E42000]
        RIN 1018-BB98
        Endangered and Threatened Wildlife and Plants; Proposed Replacement of the Regulations for the Nonessential Experimental Population of Red Wolves in Northeastern North Carolina

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), are reopening the public comment period on our June 28, 2018, proposed rule to replace the existing regulations governing the nonessential experimental population designation of the red wolf (Canis rufus) under section 10(j) of the Endangered Species Act of 1973, as amended (Act). We are reopening the comment period to allow the public an additional opportunity to review and comment on the proposed rule. Comments already submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

          The comment period for the proposed rule published on June 28, 2018, at 83 FR 30382 is reopened. We will accept comments received or postmarked on or before August 28, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be submitted by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:

            Availability of documents: The proposed rule is available on http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0035 and on our website at http://www.fws.gov/Raleigh. Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, are also available for public inspection at http://www.regulations.gov. All comments, materials, and documentation that we considered in the proposed rule are available for public inspection, by appointment, during normal business hours, at the Raleigh Ecological Services Field Office, U.S. Fish and Wildlife Service, 551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; facsimile 919-856-4556. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339.

            Comment submission: You may submit written comments on the proposed rule by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0035, which is the docket number for the rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0035, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
          We request that you send comments only by the methods described above. See Information Requested, below, for more information on submitting comments on the proposed rule.

          FOR FURTHER INFORMATION CONTACT:
          Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, 551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; facsimile 919-856-4556. Persons who use a TDD may call the Federal Relay Service at 1-800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background
        On June 28, 2018, we published in the Federal Register a proposed rule (83 FR 30382) to replace the regulations governing the northeast North Carolina (NC) nonessential experimental population (NEP) of the red wolf, which were codified in 1995 in title 50 of the Code of Federal Regulations (CFR) at § 17.84(c) (50 CFR 17.84(c)). That proposal had a 30-day comment period, ending July 30, 2018. The purpose of the proposed action is to incorporate the most recent science and lessons learned related to the management of red wolves to implement revised regulations that will better further the conservation of the red wolf. We propose to establish a more manageable wild propagation population that will allow for more resources to support the captive population component of the red wolf program (which is the genetic fail safe for the species); serve the future needs of new reintroduction efforts; retain the influences of natural selection on the species; eliminate the regulatory burden on private landowners; and provide a population for continued scientific research on wild red wolf behavior and population management.
        Information Requested
        We will accept written comments and information during this reopened comment period and will consider information and recommendations from all interested parties. If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determination. We intend that any final action resulting from the proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible.

        We request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning the June 28, 2018, proposed rule. We particularly seek comments concerning:
        (1) Contribution of the NC NEP to recovery goals for the red wolf;
        (2) The relative effects that management of the NC NEP under the proposed rule would have on the conservation of the species;
        (3) The extent to which the NC NEP may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the proposed NC NEP management area;
        (4) Appropriate provisions for protections and “take” of red wolves;
        (5) Ideas and strategies for promoting tolerance of red wolves on private property outside the NC NEP management area; and
        (6) Appropriate means to evaluate the effectiveness of the proposed action, including relevant performance measures.
        Additionally, we seek comments on the identification of direct, indirect, beneficial, and adverse effects that may result from the June 28, 2018, proposed rule. You may wish to consider the extent to which the proposed rule will affect the following when providing comments:
        (1) Impacts on floodplains, wetlands, wild and scenic rivers, or ecologically sensitive areas;
        (2) Impacts on Federal, State, local, or Tribal park lands; refuges and natural areas; and cultural or historic resources;
        (3) Impacts on human health and safety;
        (4) Impacts on air, soil, and water;
        (5) Impacts on prime agricultural lands;
        (6) Impacts to other species of wildlife, including other endangered or threatened species;
        (7) Disproportionately high and adverse impacts on minority and low income populations;
        (8) Any socioeconomic or other potential effects; and
        (9) Any potential conflicts with other Federal, State, local, or Tribal environmental laws or requirements.
        Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
        We will post all comments on http://www.regulations.gov. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, are available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

          Authority:

          The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: July 30, 2018.
          James W. Kurth,
          Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director for the U.S. Fish and Wildlife Service.

      [FR Doc. 2018-17320 Filed 8-10-18; 8:45 am]
      BILLING CODE 4333-15-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 070125020-7020-01; I.D. 010907A]
        RIN 0648-AV15
        Protective Regulations for Killer Whales in the Northwest Region under the Endangered Species Act and Marine Mammal Protection Act

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

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:
          We, the National Marine Fisheries Service (NMFS), listed the Southern Resident killer whale distinct population segment (DPS) as endangered under the Endangered Species Act (ESA) on November 18, 2005. In the final rule announcing the listing, we identified vessel effects, including direct interference and sound, as a potential contributing factor in the recent decline of this population. Both the Marine Mammal Protection Act (MMPA) and the ESA prohibit take, including harassment, of killer whales, but these statutes do not prohibit specified acts. We are considering whether to propose regulations that would prohibit certain acts, under our general authorities under the ESA and MMPA and their implementing regulations. The Proposed Recovery Plan for Southern Resident killer whales (published November 29, 2006) includes as a management action the evaluation of current guidelines and the need for regulations and/or protected areas. The scope of this advance notice of proposed rulemaking (ANPR) encompasses the activities of any person or conveyance that may result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts. NMFS requests comments on whether—and if so, what type of—conservation measures, regulations, or other measures would be appropriate to protect killer whales from the effects of these activities.

          DATES:

          Comments must be received at the appropriate address (see ADDRESSES) no later than June 20, 2007. Public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, Seattle, WA. Requests for additional public meetings must be made in writing by April 23, 2007.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: orca.plan@noaa.gov.
          • Federal e-rulemaking Portal: http://www.regulations.gov.
          • Mail: Assistant Regional Administrator, Protected Resources Division, Northwest Regional Office, National Marine Fisheries Service, 7600 Sand Point Way NE, Seattle, WA 98115.

          FOR FURTHER INFORMATION CONTACT:
          Lynne Barre, Northwest Regional Office, 206-526-4745; or Trevor Spradlin, Office of Protected Resources, 301-713-2322.

        SUPPLEMENTARY INFORMATION:
        Background

        Viewing wild marine mammals is a popular recreational activity for both tourists and locals. In Washington, killer whales (Orcinus orca) are the principal target species for the commercial whale watch industry—easily surpassing other species, such as gray whales (Eschrichtius robustus), porpoises, and pinnipeds (Hoyt, 2001). NMFS is concerned that some whale watch activities may cause unauthorized taking of killer whales or cause detrimental individual-level and population-level impacts.
        Killer whales in the eastern North Pacific have been classified into three forms, or ecotypes, termed residents, transients, and offshore whales. 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 population contains three pods—J pod, K pod, and L pod and was designated as a depleted stock under the MMPA and listed as endangered under the ESA.

        During the spring, summer, and fall, the Southern Residents' range includes the inland waterways of Puget Sound, Strait of Juan de Fuca, and Southern Strait of Georgia. 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 Southern Residents.

        Scientific studies have documented human disturbance of Southern Resident killer whales by vessels engaged in whale watching in the inland waters of Washington. Short-term behavioral changes in Northern and Southern Residents have been observed and studied by several researchers (Kruse, 1991; Kriete, 2002; Williams et al., 2002a, 2002b, 2006; Foote et al., 2004; Bain et al., 2006), although it is not well understood whether it is the presence and activity of the vessel, the sounds the vessel makes, or a combination of these factors that disturbs the animals. Individual animals can react in a variety of different ways to whale watching, including swimming faster, adopting less predictable travel paths, making shorter or longer dive times, moving into open water, and altering normal patterns of behavior at the surface (Kruse, 1991; Williams et al., 2002a; Bain et al., 2006). High frequency sound generated from recreational and commercial vessels moving at high speed in the vicinity of whales may mask echolocation and other signals the species rely on for foraging, communication (Foote et al., 2004) and navigation.

        In rare instances, killer whales are injured or killed by collisions with passing ships and powerboats, primarily from being struck by the turning propeller blades (Visser, 1999c; Ford et al., 2000; Visser and Fertl, 2000; Baird, 2001; Carretta et al., 2001, 2004). Some animals with severe injuries eventually make full recoveries, such as a female described by Ford et al. (2000) that showed healed wounds extending almost to her backbone. One resident whale mortality from a vessel collision was previously reported for Washington and British Columbia from the 1960s to 1990s (Baird, 2002). However, two additional mortalities have recently been reported. In March of 2006 the lone Southern Resident killer whale, L98, residing in Nootka Sound for several years was killed by a tug boat. While L98 exhibited unusual behavior and often interacted with vessels, his death demonstrates the risk of vessel accidents. In July 2006, the death of a stranded Northern Resident female was attributed to blunt trauma, probably from a vessel strike (M. Joyce, pers. comm.) Five additional accidents between vessels and killer whales have been documented in the region since the 1990s (Baird, 2001; DFO, unpubl. data, NMFS, unpubl. data). One took place on the Washington side of Haro Strait in 1998 and involved a slow moving boat that apparently did not injure the whale. In 1995, a Northern Resident was struck by a speedboat, causing a wound to the dorsal fin that quickly healed. Another Northern Resident was injured by a high-speed boat in 2003, but also recovered. A 2005 collision of a Southern Resident with a commercial whale watch vessel resulted in a minor injury to the whale, which subsequently healed. An additional Northern Resident calf was struck by a vessel in July 2006.

        We are concerned about the potential for individual-level and population-level effects because of vessel activities. Vessel effects were identified as a factor in the ESA listing of the Southern Residents and are addressed in the recovery plan which is available on our web page at http://www.nwr.noaa.gov/. NMFS has received an increasing number of complaints from the public alleging that killer whales in the core summer area along the west side of San Juan Island are routinely being disturbed by people attempting to closely approach and interact with the whales by vessel (motor powered or kayak). Concerns have been expressed by the U.S. Marine Mammal Commission, as well as members of the scientific community, researchers, wildlife conservation organizations, and some commercial tour operators.
        Current MMPA and ESA Prohibitions and NMFS Guidelines and Regulations
        The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., contains a general prohibition on take of marine mammals. Section 3(13) of the MMPA defines the term take as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” Except with respect to military readiness activities and certain scientific research activities, the MMPA defines the term harassment as “any act of pursuit, torment, or annoyance which—(i) has the potential to injure a marine mammal or marine mammal stock in the wild, [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
        In addition, NMFS regulations implementing the MMPA further describe the term take to include: “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild” (50 CFR 216.3).
        The MMPA provides limited exceptions to the prohibition on take for activities such as scientific research, public display, and incidental take in commercial fisheries. Such activities require a permit or authorization, which may be issued only after a thorough agency review.
        The ESA generally prohibits the taking of endangered species. The ESA defines take to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Both the ESA and MMPA require wildlife viewing to be conducted in a manner that does not cause take.
        NMFS has regulated close vessel approaches to large whales in Hawaii, Alaska, and the North Atlantic. In 1995, NMFS published a final rule to establish a 100-yard (91.4-m) approach limit for humpback whales in Hawaii (60 FR 3775, January 19, 1995). In 2001, NMFS published a final rule (66 FR 29502, May 31, 2001) to establish a 100-yard (91.4-m) approach limit for humpback whales in Alaska that included a speed limit for when a vessel is near a whale. In 1997, an interim final rule was published to prohibit approaching critically endangered North Atlantic right whales closer than 500 yards (457.2 m) (62 FR 6729, February 13, 1997).

        In addition to these specific regulations, NMFS has provided general guidance for wildlife viewing that does not cause take. This is consistent with the philosophy of responsible wildlife viewing advocated by many federal and state agencies to unobtrusively observe the natural behavior of wild animals in their habitats without causing disturbance (see http://www.watchablewildlife.org/.

        Each of the six NMFS Regions has developed recommended viewing guidelines to educate the general public on how to responsibly view marine mammals in the wild and avoid causing a take. These guidelines are available on line at: http://www.nmfs.noaa.gov/prot_res/
          MMWatch/MMViewing.html

        The “Be Whale Wise” guidelines developed for marine mammals by the NMFS Northwest Regional Office and partners are also available at: http://www.nwr.noaa.gov/Marine-Mammals/
          upload/BeWhaleWise.pdf

        Be Whale Wise is a transboundary effort to develop and revise guidelines for viewing marine wildlife. NMFS has partnered with commercial operators, whale advocacy groups, U.S. and Canadian government agencies and enforcement divisions over the past several years to promote safe and responsible wildlife viewing practices through the development of outreach materials, training workshops, on-water education and public service announcements. The 2006 version of the Be Whale Wise guidelines recommends that boaters parallel whales no closer than 100 yards (91.4 m), approach animals slowly from the side rather than from the front or rear, and avoid putting the vessel within 400 yards (365 m) in front of or behind the whales. Vessels are also recommended to reduce their speed to less than 7 knots (13 km/h) within 400 meters of the whales, and to remain on the outer side of the whales near shore. Two voluntary no-boat areas off San Juan Island are recognized by San Juan County although this is separate from the Be Whale Wise guidelines. The first is a 1/2-mile (800 m)-wide zone along a 3-km stretch of shore centered on the Lime Kiln lighthouse. The second is a 1/4-mile (400 m)-wide zone along much of the west coast of San Juan Island from Eagle Point to Mitchell Point. These areas were established to facilitate shore-based viewing and to reduce vessel presence in an area used by the whales for feeding, traveling, and resting.
        NMFS supports the Soundwatch program, an on-water stewardship and monitoring group, to promote the Be Whale Wise guidelines and monitor vessel activities in the vicinity of whales. Soundwatch reports (Koski, 2004, 2006) characterize trends in incidents when the guidelines are not followed and there is the potential for disturbance of the whales. Incidents are frequently observed involving both recreational and commercial whale watching vessels. Soundwatch also serves as a crucial education component, providing information on the viewing guidelines to boaters that are approaching areas with whales.
        Despite the regulations, guidelines and outreach efforts, interactions between vessels and killer whales continue to occur in the waters of Puget Sound and the Georgia Basin. Advertisements on the Internet and in local media in the Pacific Northwest promote activities that appear inconsistent with what is recommended in the NMFS guidelines. NMFS has received letters from the Marine Mammal Commission, members of the scientific research community, environmental groups, and members of the general public expressing the view that some types of interactions with wild marine mammals have the potential to harass and/or disturb the animals by causing injury or disruption of normal behavior patterns. NMFS has also received inquiries from members of the public and commercial tour operators requesting clarification of NMFS' policy on these matters.
        In 2002, NMFS published an ANPR requesting comments from the public on what types of regulations and other measures would be appropriate to prevent harassment of marine mammals in the wild caused by human activities directed at the animals (67 FR 4379, January 30, 2002). The 2002 ANPR was national in scope and covered all species of marine mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals and sea lions), and requested comments on ways to address concerns about the public and commercial operators closely approaching, swimming with, touching or otherwise interacting with marine mammals in the wild. Several potential options were proposed for consideration and comment, including: (1) codifying the current NMFS Regional marine mammal viewing guidelines into regulations; (2) codifying the guidelines into regulations with additional improvements; (3) establishing minimum approach regulations similar to the ones for humpback whales in Hawaii and Alaska and North Atlantic right whales; and (4) restricting activities of concern similar to the MMPA regulation prohibiting the public from feeding or attempting to feed wild marine mammals. The 2002 ANPR specifically mentioned the complaints received from researchers and members of the public concerning close vessel approaches to killer whales in the Northwest. Over 500 comments were received on the 2002 ANPR regarding human interactions with wild marine mammals in United States waters and along the nation's coastlines.
        Request for Information and Comments
        NMFS is requesting information and comments on whether — and if so, what type of — conservation measures, regulations, or other measures would be appropriate to protect killer whales in inland waters of Washington from human activities that result in the unauthorized taking of killer whales and/or that may cause detrimental individual-level and population-level impacts.
        NMFS has received input on potential measures to address vessel impacts during the ESA listing and recovery planning process. Suggestions included regulations governing all vessels (including aircraft) or only commercial whale watch vessels. Suggestions included a moratorium on all whale watching, prohibiting whale watching for one or more days per week, developing a permit program for commercial operators, and requiring whale watch vessels to purchase and install Vessel Monitoring System (VMS) equipment to allow for monitoring their activities. Based on the comments received, and the regulations implemented for other marine mammals, NMFS has developed a preliminary list of options for consideration and comment:

          Codify the current Be Whale Wise marine mammal viewing guidelines - Codifying the guidelines, in whole or in part, as regulations would make them requirements rather than recommendations, and would allow enforcement of these provisions and penalties for violations.

          Establish minimum approach rule - Similar to the minimum approach rules for humpback whales in Hawaii and Alaska, and right whales in the North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit could be established by regulation to accommodate killer whale viewing opportunities while minimizing the potential detrimental impacts from humans. If establishing a minimum approach rule is appropriate, then we would have to consider whether the current guideline of 100 yards (approximately 100 m) is appropriate for this regulation. We would consider exceptions for situations in which marine mammals approach vessels as well as other situations in which approach is not reasonably avoidable.

          Prohibit vessel activities of concern - The current guidelines address specific activities of concern. A regulation could prohibit vessel operators from engaging in these activities or others of concern. Activities of concern include using vessels to herd whales, surrounding whales or otherwise preventing a reasonable means of escape, leapfrogging whales or positioning a vessel in their predictable path, separating calves from attending adults, approaching whales at or above specified speeds, or running a vessel through a group of whales.

          Establish time-area closures - Similar to the prohibitions used to protect fish stocks or habitat, we could establish a regulation restricting human access to specific areas. These restrictions could restrict all human entry to the area or restrict only specified acts within an area; they could be full-time or limited to certain seasons when killer whales are likely to be present; or a closure could be any combination of the above.

          Operator permit or certification program - We could adopt approach rules or establish closed areas that applied to all vessels except those operated under a whale watching permit or certification. Issuance of a permit or certification could be based on the operator's knowledge of whale behavior and proper procedures for operating vessels around whales. A permit or certification could allow the whale watch operator to get closer to the whales than those who do not have one. For example, a general approach limit of 200 m could be implemented for all non-permitted or uncertified operators, and only operators who are permitted or certified would be allowed to approach to 100 m of the whales. Sanctions, up to and including loss of permit or certification for noncompliance with applicable regulations, would be possible. The issuance of permits or certifications could be directly related to an assessment of the appropriate level of whale watching in Puget Sound. This would require us to evaluate the current level of whale watching effort and limit the maximum number of vessels that can be engaged in whale watching activity. The limit could be adjusted based on monitoring and ongoing evaluation of what is appropriate to protect the whales.
        We recognize that the most appropriate regulations may be some combination of the above measures, or that additional possibilities may exist.
        Regulations adopted under the MMPA could apply to all three killer whale ecotypes - residents, transients, and offshores. To the average wildlife viewer, these whales are difficult to differentiate between visually, and all three could potentially be found in the inland waters of Washington State where whale watching occurs.
        The geographic scope of regulations, if proposed, would likely be the inland waters of the State of Washington, since this is where vessel interactions are concentrated. The coastal waters off Washington and Oregon do not currently have a significant level of documented vessel interactions, and the small number of killer whale sightings in these areas makes it unlikely that they will develop whale watching operations at significant levels in the future.
        NMFS invites information and comment from the public on the advisability of regulations, on the above options, and on other possible measures that will help the agency decide what type of regulations, if any, would be most appropriate to consider for protecting killer whales in the Pacific Northwest. In particular, we are seeking information and comments concerning:
        (1) The advisability of and need for regulations;
        (2) The geographic scope of regulations;
        (3) Management options for regulating vessel interactions with killer whales, including but not limited to the options listed in this notice;
        (4) Scientific and commercial information regarding the effects of vessels on killer whales and their habitat;
        (5) Information regarding potential economic effects of regulating vessel interactions; and
        (6) Any additional relevant information that NMFS should consider should it undertake rulemaking.

        You may submit information and comments concerning this ANPR by any one of several methods (see ADDRESSES). Materials related to this notice can be found on the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/. We will consider all comments and information received during the comment period in preparing a proposed rule.
        References Cited

        A complete list of all references cited in this advanced notice of proposed rulemaking can be found on our Web site at http://www.nwr.noaa.gov/ and is available upon request from the NMFS office in Seattle, Washington (see ADDRESSES).
        Public Hearings

        Based on the level of interest in killer whales and whale watching, public meetings have been scheduled for April 18, 2007, 2-4 p.m. in The Grange Hall, Friday Harbor, WA and April 19, 2007, 7-9 p.m. at the Seattle Aquarium, Seattle, WA. Requests for additional public hearings or special accommodations must be made in writing (see ADDRESSES) by April 23, 2007.
        Classification
        This ANPR was determined to be significant for purposes of E.O. 12866.

          Dated: March 15, 2007.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E7-5262 Filed 3-21-07; 8:45 am]
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        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 224
        [Docket No. 121025586-2603-01]
        RIN 0648-XC326
        Listing Endangered or Threatened Species: 90-Day Finding on a Petition To Delist the Southern Resident Killer Whale; Request for Information

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

          ACTION:
          Notice of finding; request for information.

          SUMMARY:

          We, the National Marine Fisheries Service (NMFS), announce a 90-day finding on a petition to delist the Southern Resident killer whale (Orcinus orca) Distinct Population Segment (DPS) under the Endangered Species Act (ESA). The Southern Resident killer whale DPS was listed as endangered under the ESA in 2005. We find that the petition viewed in the context of information readily available in our files presents substantial scientific information indicating the petitioned action may be warranted. We are hereby initiating a status review of Southern Resident killer whales to determine whether the petitioned action is warranted and to examine the application of the DPS policy. To ensure the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species.

          DATES:
          Scientific and commercial information pertinent to the petitioned action and DPS review must be received by January 28, 2013.

          ADDRESSES:

          You may submit information or data by any of the following methods. Electronic Submissions: Submit all electronic information via the Federal eRulemaking Portal http://www.regulations.gov. To submit information via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter “NOAA-NMFS-” in the keyword search. Locate the document you wish to provide information on from the resulting list and click on the “Submit a Comment” icon to the right of that line.
          Mail or hand-delivery: Protected Resources Division, NMFS, Northwest Region, Protected Resources Division, 7600 Sand Point Way NE. Attention—Donna Darm, Assistant Regional Administrator.

            Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. We will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Lynne Barre, NMFS Northwest Region, (206) 526-4745; Marta Nammack, NMFS Office of Protected Resources, (301) 427-8469.

        SUPPLEMENTARY INFORMATION:
        ESA Statutory Provisions and Policy Considerations

        On August 2, 2012, we received a petition submitted by the Pacific Legal Foundation on behalf of the Center for Environmental Science Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to delist the endangered Southern Resident killer whale DPS under the ESA. Copies of the petition are available upon request (see ADDRESSES, above).

        In accordance with section 4(b)(3)(A) of the ESA, to the maximum extent practicable within 90 days of receipt of a petition to list or delist a species as threatened or endangered, the Secretary of Commerce is required to make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates that the petitioned action may be warranted, as is the case here, we are required to promptly commence a review of the status of the species concerned, during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, within 12 months of receipt of the petition we conclude the review with a determination that the petitioned action is not warranted, or a proposed determination that the action is warranted. Under specific facts, we may also issue a determination that the action is warranted but precluded. Because the finding at the 12-month stage is based on a comprehensive review of all best available information, as compared to the more limited scope of review at the 90-day stage, which focuses on information set forth in the petition and information readily available in our files, this 90-day finding does not prejudge the outcome of the status review.
        Under the ESA, the term “species” means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-USFWS policy clarifies the Services' interpretation of the phrase “Distinct Population Segment,” or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: Discreteness of the population segment in relation to the remainder of the species, and, if discrete, the significance of the population segment to the species.
        A species is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether a species is threatened or endangered based on any one or a combination of the following section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
        (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
        (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
        (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).
        ESA implementing regulations issued jointly by the Services (50 CFR 424.14(b)) define “substantial information,” in the context of reviewing a petition to list, delist, or reclassify a species, as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition (1) clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).

        Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action may be warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is or is not either threatened or endangered to support a positive 90-day finding.
        To make a 90-day finding on a petition to list, delist, or reclassify a species, we evaluate whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles (such as citing published and peer reviewed articles and studies done in accordance with valid methodologies), unless we have specific information in our files that indicates that the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be disregarded at the 90-day finding stage, so long as it is reliable and provides basis for us to find that a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating that the species may meet the ESA's requirements for delisting is not required to make a positive 90-day finding.
        Background

        After receiving a petition to list Southern Resident killer whales as threatened or endangered under the ESA in 2001 (CBD, 2001), we formed a Biological Review Team (BRT) to assist with a status review (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 (67 FR 44133; July 1, 2002). Because of the uncertainties regarding killer whale taxonomy (i.e., whether killer whales globally 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. Following the determination, 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 court found that where there is “compelling evidence that the global Orcinus orca taxon is inaccurate,” the agency may not rely on “a lack of consensus in the field of taxonomy regarding the precise, formal taxonomic redefinition of killer whales.” As a result of the court's order, we co-sponsored a Cetacean Taxonomy workshop in 2004, which included a special session on killer whales, and reconvened a BRT to prepare an updated status review document for Southern Resident killer whales (NMFS, 2004).
        The BRT agreed that the Southern Resident killer whale population likely belongs 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 Resident killer whale population is 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 Southern Resident killer whales as threatened on December 22, 2004 (69 FR 76673). After considering public comments on the proposed rule and other available information, we reconsidered the status of the Southern Resident killer whale DPS and issued a final rule to list the Southern Resident killer whale DPS as endangered on November 18, 2005 (70 FR 69903).
        Following the listing, we designated critical habitat, completed a recovery plan, and conducted a 5-year review for Southern Resident killer whales. We issued a final rule designating critical habitat for the Southern Resident killer whales November 29, 2006 (71 FR 69055). The designation includes three specific areas: (1) the Summer Core Area in Haro Strait and waters around the San Juan Islands; (2) Puget Sound; and (3) the Strait of Juan de Fuca, which comprise approximately 2,560 square miles (square km) of Puget Sound. The designation excludes areas with water less than 20 feet (m) deep relative to extreme high water. After engaging stakeholders and providing multiple drafts for public comment, we announced the Final Recovery Plan for Southern Resident killer whales on January 24, 2008 (73 FR 4176). We have continued working with partners to implement actions in the recovery plan. In March 2011, we completed a five-year review of the ESA status of Southern Residents killer whales concluding that no change was needed in their listing status, and that the Southern Resident killer whale DPS would remain listed as endangered (NMFS 2011).
        Petition Finding
        On August 2, 2012, we received a petition submitted by the Pacific Legal Foundation on behalf of the Center for Environmental Science Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to delist the endangered Southern Resident killer whale DPS under the ESA. The petitioners contend that the killer whale DPS does not constitute a listable unit under the ESA because NMFS is without authority to list a DPS of a subspecies. The petitioners also contend that there is no scientific basis for the designation of the unnamed North Pacific Resident subspecies of which the Southern Resident killer whales are a purported DPS. They conclude that the listing of the Southern Resident killer whale DPS is illegal, and therefore, that NMFS should delist the DPS.
        The petition focuses entirely on the DPS issue and does not include any information regarding the five section 4(a)(1) factors or status of population. The petitioners provide both a legal argument regarding the DPS determination under the ESA and also a scientific argument regarding the biological basis for the DPS determination. There is no information presented regarding past and present numbers and distribution of the species, the threats faced by the species, or the status of the species over all or a significant portion of its range.

        The petition does present new information regarding genetic samples and data analysis pertinent to the question of discreteness and the DPS determination. The source of the new information comes primarily from a scientific peer reviewed journal article published subsequent to the listing (Pilot et al., 2010) which includes information regarding breeding between different ecotypes of killer whales (i.e., offshores and transients). The petitioners also cite new articles regarding killer whale vocalizations, and review different types of information considered by the BRT and presented in the status review (NMFS, 2004).
        As described above, the standard for determination of whether a petition includes substantial information is whether the amount of information presented provides a basis for us to find that it would lead a reasonable person to believe that the measure proposed in the petition may be warranted. We find the analysis of additional genetic samples and publication of new peer reviewed scientific journal articles regarding the taxonomy of killer whales meets this standard, based on the information presented and referenced in the petition, as well as all other information readily available in our files. Because the petition presents substantial scientific evidence indicating that the petition may be warranted we do not address petitioner's legal argument now but rather will do so as appropriate at the 12 month determination.

        We note that information and results, similar to those presented in Pilot et al. (2010), were available at the time of the Status Review (NMFS, 2004), Cetacean Taxonomy Workshop (Reeves et al., 2004), DPS determination, and listing decision. In addition to the information presented in the petition, we have data from new genetic samples and peer reviewed scientific journal articles (e.g., Morin et al., 2010, Ford et al., 2011) readily available in our files regarding taxonomy and breeding behavior of killer whales that address the discreteness question and the DPS determination. We are also soliciting any new information available to inform the status review. We will consider all of the available information in our determination of whether the delisting of the Southern Resident killer whale DPS is warranted.
        Information Solicited
        To ensure that our status review is complete and based on the best available scientific and commercial information, we are soliciting new information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the Southern Resident killer whale DPS. The petition focuses on both the legal and biological aspects of the DPS determination, and the status review will also focus on the DPS determination. We are therefore soliciting new information relevant to the factors considered in the DPS determination.
        References Cited

        The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at:

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

          Dated: November 20, 2012.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs.

      [FR Doc. 2012-28762 Filed 11-26-12; 8:45 am]
      BILLING CODE 3510-22-P