Listing Endangered or Threatened Species: 90-Day Finding on a Petition To Delist the Southern Resident Killer Whale; Request for Information, 70733-70736 [2012-28762]
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Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Proposed Rules
dominated by wildlife, there is more
conflict between predators such as lions
and humans. Adding to the potential
incidences in human-lion conflict, the
human population is expected to
increase significantly in the next 40
years, particularly in the range of the
lion (Petition, p. 20; United Nations,
Department of Economic and Social
Affairs [UN DESA] 2009, unpaginated).
In addition to deliberate killing of lions,
lions are killed inadvertently. For
example, in northern Serengeti National
Park, lions were almost entirely
extirpated in the 1980s by poachers
setting snares for herbivores (Packer et
al. 2011, p. 149; Sinclair et al. 2003, p.
289).
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Compromised [Genetic] Viability
The petition indicates that the African
lion is increasingly restricted to small
and disconnected populations, which
may increase the threat of inbreeding
(Petition, p. 54). The petition claims that
large lion populations with 50 to 100
prides are necessary to avoid the
negative consequences of inbreeding
and cites Bjorklund 2003, pp. 515–523.
The petition avers that population
connectivity is essential in order to
allow males to travel to other areas in
order to preserve genetic variation. The
petition suggests that the lions in
Ngorongoro Crater, Tanzania, may be
inbred, and subsequently their
vulnerability to disease may be
increased. Compared with many other
mammal species, the population
resilience of the lion is high
(Chardonnet et al. 2010, p. 10). The
African lion is capable of producing
many young each year, and its
reproductive cycle is not limited to a
particular season, so the species is able
to rapidly recover from losses to its
population (Chardonnet et al. 2010, p.
10).
The information contained in the
petition and in our files indicates that
there are several other natural or
manmade factors such as human-lion
conflict and infanticide by African lions
that may result in negative impacts on
the African lion.
Finding
On the basis of our review under
section 4(b)(3)(A) of the Act, we
determine that the petition presents
substantial scientific or commercial
information indicating that listing the
African lion as endangered throughout
its range may be warranted. This finding
is based on information provided under
the present or threatened destruction,
modification, or curtailment of its
habitat or range (Factor A);
overutilization for commercial,
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recreational, scientific, or educational
purposes (Factor B); disease (Factor C);
the inadequacy of existing regulatory
mechanisms (Factor D); and other
natural or manmade factors affecting the
subspecies’ continued existence (Factor
E). The petition does not present
substantial information to indicate that
listing the African lion may be
warranted due to predation, nor do we
have information in our files suggesting
that predation to African lions impacts
the subspecies. The African lion’s range
spans approximately 30 countries and
the factors affecting this species are
complex and interrelated. The petition
asserts that the subspecies no longer
exists in 78 percent of its historic
distribution (Bauer et al. 2008).
Although there is insufficient
information in the petition to
substantiate that lions may warrant
listing as endangered due to
compromised genetic viability, we will
evaluate this factor in conjunction with
other potential threats during the status
review. Because we have found that the
petition presents substantial
information indicating that listing the
African lion may be warranted, we are
initiating a status review to determine
whether listing the African lion under
the Act as endangered is warranted.
The ‘‘substantial information’’
standard for a 90-day finding differs
from the Act’s ‘‘best scientific and
commercial data’’ standard that applies
to a status review to determine whether
a petitioned action is warranted. A 90day finding does not constitute a status
review under the Act. In a 12-month
finding, we will determine whether a
petitioned action is warranted after we
have completed a thorough status
review of the species, which is
conducted following a substantial 90day finding. Because the Act’s standards
for 90-day and 12-month findings are
different, as described above, a
substantial 90-day finding does not
mean that the 12-month finding will
result in a warranted finding.
References Cited
A complete list of all references cited
in this 90-day finding is available on the
Internet at https://www.regulations.gov
or upon request from the Branch of
Foreign Species, Endangered Species
Program, U.S. Fish and Wildlife Service
(see FOR FURTHER INFORMATION CONTACT).
Author
The primary author of this finding is
Amy Brisendine, Branch of Foreign
Species, Endangered Species Program,
U.S. Fish and Wildlife Service.
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70733
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: August 23, 2012.
Dan Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012–28310 Filed 11–26–12; 8:45 am]
BILLING CODE 4310–55–P
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of finding; request for
information.
AGENCY:
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 https://
www.regulations.gov. To submit
information via the e-Rulemaking
Portal, first click the ‘‘submit a
SUMMARY:
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Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Proposed Rules
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 https://
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:
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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
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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
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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 90day 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
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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
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‘‘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 cosponsored 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
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70735
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 fiveyear 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,
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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.
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(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,
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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
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]]>Agencies
[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Proposed Rules]
[Pages 70733-70736]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28762]
=======================================================================
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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 https://www.regulations.gov. To submit
information via the e-Rulemaking Portal, first click the ``submit a
[[Page 70734]]
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 https://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
[[Page 70735]]
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,
[[Page 70736]]
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
