Endangered and Threatened Wildlife and Plants: Endangered Status for Southern Resident Killer Whales, 69903-69912 [05-22859]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 222 (Friday, November 18, 2005)]
[Rules and Regulations]
[Pages 69903-69912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22859]


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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.

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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 co-
managers, 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

[[Page 69904]]

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 co-managers 
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 year-round 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

[[Page 69905]]

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

[[Page 69906]]

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.

[[Page 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 cross-references 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

[[Page 69908]]

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 short-term 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.

[[Page 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

[[Page 69910]]

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), co-manager 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

[[Page 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.

[[Page 69912]]

    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, 6