Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Cuvier's Beaked Whale in the Gulf of Mexico as Threatened or Endangered Under the Endangered Species Act, 11058-11066 [2019-05669]

Download as PDF 11058 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices 2. Endangered Species Act Mitigation Measures for Seabirds—Preliminary Preferred Action 3. Endangered Species Act Mitigation Measures for Salmon 4. Amendment 26: Blackgill Rockfish— Final Action 5. Science Improvements and Methodology Review Report 6. Electronic Monitoring: Implementation Update 7. Vessel Movement Monitoring Update 8. Cost Recovery Report 9. Final Inseason Management, Including Shorebased Carryover and Salmon Caps for Midwater Trawl Exempted Fishing Permits (EFP)—Final Action H. Pacific Halibut Management 1. Incidental Catch Limits for 2019 Salmon Troll Fishery—Final Action 2. Commercial Directed Fishery Workshop Planning Advisory Body Agendas Advisory body agendas will include discussions of relevant issues that are on the Pacific Council agenda for this meeting, and may also include issues that may be relevant to future Council meetings. Proposed advisory body agendas for this meeting will be available on the Pacific Council website http://www.pcouncil.org/counciloperations/council-meetings/currentbriefing-book/ no later than Friday, March 22, 2019. These schedule of ancillary meetings correct the original meeting notice. Schedule of Ancillary Meetings Day 1—Tuesday, April 9, 2019 Coastal Pelagic Species Management Team, 8 a.m. Day 2—Wednesday, April 10, 2019 Coastal Pelagic Species Advisory Subpanel, 8 a.m. Coastal Pelagic Species Management Team, 8 a.m. Habitat Committee, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Scientific and Statistical Committee, 8 a.m. Budget Committee, 10 a.m. Model Evaluation Workgroup, 10 a.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc Day 3—Thursday, April 11, 2019 California State Delegation, 7 a.m. Oregon State Delegation, 7 a.m. Washington State Delegation, 7 a.m. Coastal Pelagic Species Advisory Subpanel, 8 a.m. Coastal Pelagic Species Management Team, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Scientific and Statistical Committee, 8 a.m. Enforcement Consultants, 3 p.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 Day 4—Friday, April 12, 2019 Special Accommodations California State Delegation, 7 a.m. Oregon State Delegation, 7 a.m. Washington State Delegation, 7 a.m. Groundfish Advisory Subpanel, 8 a.m. Groundfish Management Team, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc Enforcement Consultants, Ad Hoc Saltonstall-Kennedy Grant Feedback Session, 7 p.m. These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820–2411 at least 10 business days prior to the meeting date. Dated: March 20, 2019. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. Day 5—Saturday, April 13, 2019 [FR Doc. 2019–05651 Filed 3–22–19; 8:45 am] California State Delegation, 7 a.m. Oregon State Delegation, 7 a.m. Washington State Delegation, 7 a.m. Groundfish Advisory Subpanel, 8 a.m. Groundfish Management Team, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc Enforcement Consultants, Ad Hoc BILLING CODE 3510–22–P Day 6—Sunday, April 14, 2019 Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Cuvier’s Beaked Whale in the Gulf of Mexico as Threatened or Endangered Under the Endangered Species Act California State Delegation, 7 a.m. Oregon State Delegation, 7 a.m. Washington State Delegation, 7 a.m. Groundfish Advisory Subpanel, 8 a.m. Groundfish Management Team, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc Enforcement Consultants, Ad Hoc Day 7—Monday, April 15, 2019 California State Delegation, 7 a.m. Oregon State Delegation, 7 a.m. Washington State Delegation, 7 a.m. Groundfish Advisory Subpanel, 8 a.m. Groundfish Management Team, 8 a.m. Salmon Advisory Subpanel, 8 a.m. Salmon Technical Team, 8 a.m. Tribal Policy Group, Ad Hoc Tribal and Washington Technical Group, Ad Hoc Enforcement Consultants, Ad Hoc Day 8—Tuesday, April 16, 2019 Salmon Technical Team, 8 a.m. Although non-emergency issues not contained in this agenda may come before the Pacific Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Pacific Council’s intent to take final action to address the emergency. PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 180628590–8590–01] RIN 0648–XG333 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Notice; 90-Day petition finding. AGENCY: We (NMFS) announce a negative 90-day finding on a petition to list the Cuvier’s beaked whale (Ziphius cavirostris) in the Gulf of Mexico (GOM) as a threatened or endangered distinct population segment (DPS) under the Endangered Species Act (ESA). As an alternative to listing a DPS, the petition requests that we list the Cuvier’s beaked whale because it is threatened or endangered in a significant portion of its range (SPOIR). The petitioner also requests that we designate critical habitat. We find that the petition and information in our files do not present substantial scientific or commercial information indicating that the Cuvier’s beaked whale in the GOM qualifies as a DPS, eligible for listing under the ESA. Similarly, we find that the petition and information readily available in our files do not present substantial scientific or commercial information indicating that listing Cuvier’s beaked whale as threatened or endangered in a SPOIR may be warranted. ADDRESSES: Copies of the petition and related materials are available upon request from the Assistant Regional Administrator, Protected Resources SUMMARY: E:\FR\FM\25MRN1.SGM 25MRN1 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices Division, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701, or online at: https://www.fisheries.noaa.gov/ national/endangered-speciesconservation/negative-90-day-findings. FOR FURTHER INFORMATION CONTACT: Calusa Horn, NMFS Southeast Region, 727–824–5312, or Maggie Miller, NMFS Office of Protected Resources, 301–427– 8457. SUPPLEMENTARY INFORMATION: Background On October 11, 2017, we received a petition from the Center for Biological Diversity to list the Cuvier’s beaked whale (Ziphius cavirostris) population in the GOM as an endangered or threatened DPS or, alternatively, list the Cuvier’s Beaked whale because it is threatened or endangered in a SPOIR, under the ESA. The petitioner also requested designation of critical habitat. The petitioner asserts that the Cuvier’s beaked whale population in the GOM qualifies as a DPS because the population: (1) Is physically separated from other populations of the eastern Caribbean and northwestern Atlantic Ocean, (2) exhibits high site fidelity to the GOM, (3) is delimited by international governmental boundaries within which there are differences in management and regulations, (4) occurs in an ecological setting that is unique to the species, and (5) is likely a genetically distinct species. The petitioner also states the Marine Mammal Protection Act (MMPA) stock designation supports the proposed DPS listing under the ESA. Copies of this petition are available from us (see ADDRESSES, above). ESA Statutory and Regulatory Provisions and Evaluation Framework Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce 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 it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a ‘‘positive 90-day finding’’), 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 VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a ‘‘may be warranted’’ finding does not prejudge the outcome of the status review. Under the ESA, a listing determination must address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS–U.S. Fish and Wildlife Service (USFWS) (jointly, ‘‘the Services’’) policy clarifies the agencies’ interpretation of the phrase ‘‘distinct population segment’’ for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS 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 species are threatened or endangered based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms to address identified threats; or any other natural or manmade factors affecting the species’ existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). ESA-implementing regulations issued jointly by the Services (50 CFR 424.14(h)(1)(i)) define ‘‘substantial scientific or commercial information’’ in the context of reviewing a petition to list, delist, or reclassify a species as ‘‘credible scientific or commercial information in support of the petition’s claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted.’’ Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered ‘‘substantial information.’’ PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 11059 Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which 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 that contains an analysis of the information presented; (3) is accompanied by literature citations that are specific enough for the Services to readily locate the information cited in the petition, and, to the extent permitted by U.S. copyright law, electronic or hard copies of supporting materials; and, (4) for a petition to list, delist, or reclassify a species, information to establish whether the subject entity is a ‘‘species’’ as defined in the Act. See 50 CFR 424.14(c). Because this is a petition to list a species, we also evaluate the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d). If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g). We may also consider information readily available at E:\FR\FM\25MRN1.SGM 25MRN1 11060 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices the time the determination is made. See 50 CFR 424.14(h)(1)(ii). We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6) and 424.14(h)(1)(ii). The ‘‘substantial scientific or commercial information’’ standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petitioned action will generally not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information or analysis not previously considered. 50 CFR 424.14(h)(iii). At the 90-day finding stage, we evaluate the petitioner’s request based on the information in the petition, including its references, and information readily available to us. 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, unless we have specific information in our files that indicates 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 dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners’ assertions. In other words, conclusive information indicating the species may meet the ESA’s requirements for listing is not required VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future. To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a ‘‘species’’ eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces a degree of extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species’ status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1). Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response. Many petitions identify risk classifications made by nongovernmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 NatureServe, as evidence of extinction risk for a species. Risk classifications by such organizations or made under other Federal or state statutes may be informative, but such classification alone will not alone provide sufficient basis for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments ‘‘have different criteria, evidence requirements, purposes, and taxonomic coverage than official lists of endangered and threatened species’’ and, therefore, these two types of lists ‘‘do not necessarily coincide’’ (http:// explorer.natureserve.org/ranking.htm). Additionally, species classifications under IUCN and the ESA are not equivalent; data standards, criteria used to evaluate species and treatment of uncertainty are also not necessarily the same. Thus, when a petition cites such classifications, we will evaluate the source of information that the classification is based upon in light of the standards on extinction risk and impacts or threats discussed above. Cuvier’s Beaked Whale Species Description Cuvier’s beaked whales are members of the beaked whale family (Ziphiidae) and are odontocetes (toothed whales). They can reach lengths of about 15–23 ft (4.5–7 m) and weigh 4,000–6,800 lbs (1,845–3,090 kg). Body size does not differ significantly between males and females. These medium-sized whales have round and robust bodies, with a triangular ‘‘falcate’’ dorsal fin located far down the whale’s back. Their coloration varies from dark gray to a reddishbrown, with a paler counter-shaded underside (Jefferson et al., 1994; Baird 2016). The Cuvier’s beaked whale has one of the most extensive distributions of all beaked whale species, occurring in deep waters worldwide and ranging from equatorial tropical to cold-temperate waters; they are not known to occur in the high latitude polar waters (Dalebout et al., 2005; Heyning and Mead 2009). In the Northern Hemisphere, they are known to occur near the Aleutian Islands, Bay of Biscay, British Columbia, Gulf of California, GOM, Hawaii, Mediterranean Sea, the Shetlands, and the U.S. East and West Coasts. In the Southern Hemisphere, they are known to occur near New Zealand, South Africa, and Tierra del Fuego. They have also stranded in tropical environments such as the Bahamas, Caribbean Sea, and the Galapagos Islands. Genetic evidence suggests that Cuvier’s beaked whales may exhibit seasonal latitudinal migrations, similar to humpback whales (Dalebout et al., 2005). E:\FR\FM\25MRN1.SGM 25MRN1 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices Beaked whales appear to have a habitat preference for deep (usually greater than 3,300 ft (1,000 m)), complex topographic features such as the continental slope and edge, or steep underwater geological features like banks, seamounts, and submarine canyons (Whitehead et al., 1997; Hooker and Baird, 1999, 2002; Frantzis et al., 2003; MacLeod and Zuur, 2005, cited in Smith 2010 thesis). Studies on beaked whales have been carried out in a number of locations including the Northwest Atlantic (Hooker and Baird, 1999), Bahamas (MacLeod and Zuur, 2005), the Ligurian Basin (D’Amico et al., 2003; Moulins et al, 2007), Hawaii (Baird et al., 2004; 2006) and Greece (Frantzis et al., 2002). The Cuvier’s beaked whale is one of the more frequently observed species of beaked whale, and is considered widespread and cosmopolitan (Heyning, 1989). Cuvier’s beaked whales mature slowly and can live up to 60 years. Females reach sexual maturity at 7–11 years of age, have a gestation period of about 1 year, and give birth to a single calf every 2–3 years. Although few stomach contents have been examined, they appear to feed mostly on deep-sea squid, but also sometimes take fish and crustaceans (MacLeod et al., 2003; West et al., 2017). Cuvier’s beaked whales likely forage between approximately 600 m to nearly 3,000 m in depth (Baird et al., 2006, 2008, Tyack et al., 2006, Schorr et al., 2014). Dive data indicates that Cuvier’s beaked whale routinely conduct some of the deepest and longest dives of any marine mammal (Baird et al., 2006; Tyack et al., 2006). Cuvier’s beaked whales off the coast of Southern California were recorded diving to depths of 2,992 m and lasting 137.5 minutes (Schorr et al., 2014). The Cuvier’s beaked whale is among the most common and abundant of all the beaked whales, and their abundance worldwide is likely over 100,000 individuals (Taylor et al., 2008, downloaded October 9, 2017). Under the MMPA, we prepare stock assessment reports for several Cuvier’s beaked whale stocks that occur in waters under U.S. jurisdiction. We currently evaluate Cuvier’s beaked whale using six geographically defined stocks: The Alaska Stock (n = unknown), the California/Oregon/ Washington stock (n = 3,274), the Hawaiian stock (n = 723), the Northern GOM stock (n = 74), the Puerto Rico and U.S. Virgin Island stock (n = unknown) and the Western North Atlantic stock (n = 6,532). The stock assessment reports with population estimates are available online (https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 marine-mammal-stock-assessmentreports-species-stock). Our stock assessment reports for the Northern GOM stock and Western North Atlantic stock do not include a correction factor for detection probability and therefore may miscalculate actual abundance. Beaked whales are deep divers that spend little time at the surface (Reeves et al., 2002), and, therefore, their detection probabilities with traditional visual survey methods are low (Barlow and Gisiner, 2006; Barlow et al., 2006). Thus, reliance on shipboard and aerial surveys can result in an underestimate of density if corrections are not applied for missed animals (Barlow 2015). The Cuvier’s beaked whales are long diving animals and remain under the water’s surface for extended periods, resulting in high availability and perception biases. Cuvier’s beaked whale detection probability is estimated at 0.23 for shipboard surveys and 0.074 for aerial surveys (Barlow 1999). Roberts et al. (2016) used a correction factor to account for detection probability and estimates the abundance of beaked whales in the Northern GOM at n = 2,910. We note that the Robert’s et al. (2016) estimate of 2,910 Cuvier’s beaked whales in the Northern GOM substantially exceeded our previous stock assessment report estimate for this reason. The previous stock assessment report assumed that all animals were seen and recorded (i.e., g(0) = 1) while Robert’s et al. (2016) estimated detection probabilities by applying a g(0) = 0.23 for shipboard sightings and a g(0) = 0.074 aerial sightings. The application of the correction factor to account for detection probability results in a higher abundance estimate for the Northern GOM Cuvier’s beaked whale stock than that in the previous stock assessment report (Robert’s et al., 2016). Under the MMPA, the Cuvier’s beaked whale Northern GOM stock is not considered ‘‘strategic’’ because we assume that average annual humancaused mortality and serious injury does not exceed potential biological removal (Waring et al., 2012). Analysis of the Petition We first evaluated whether the petition presented the information indicated in 50 CFR 424.14(c) and 424.14(d). The petition contains information on the Cuvier’s beaked whale, including the species description, distribution, habitat, population status and trends, and factors contributing to the status of Cuvier’s beaked whale status in the GOM. The petitioner asserts that the Cuvier’s beaked whale in the GOM qualifies as a DPS, meeting both the PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 11061 discreteness and significance requirements, is impacted by habitat degradation by oil spills, potential prey reduction due to fisheries, entanglement in fishing gear, vessel strikes, noise pollution, water pollution, and climate change, and that the loss of this population would represent a significant loss for the species’ diversity. Alternatively, the petition states that the Cuvier’s beaked whale is threatened or endangered in a SPOIR, which the petition identifies as the GOM. DPS Analysis The petition requests that we list the Cuvier’s beaked whales in the GOM as a threatened or endangered DPS, and presents arguments that Cuvier’s beaked whales in the GOM meet the Services’ requirements for identifying a DPS eligible for listing. Our joint NMFS– USFWS DPS policy (61 FR 4722; February 7, 1996) identifies two elements to be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species to which it belongs. A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. If a population segment is considered discrete under either of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSs be used ‘‘sparingly’’ while encouraging the conservation of genetic diversity. In carrying out this examination, the Services consider available scientific evidence of the discrete population segment’s importance to the taxon to which it belongs. In evaluating this petition, we first looked for information to suggest that the Cuvier’s beaked whale in the GOM may qualify as a DPS. We evaluated the information provided in the petition and readily available in our files to see if the data suggest that the Cuvier’s E:\FR\FM\25MRN1.SGM 25MRN1 11062 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices beaked whale in the GOM is discrete, meaning that the population is markedly separated as a consequence of physical, physiological, ecological, or behavioral factors from other populations of the Cuvier’s beaked whale. According to the petitioner, the Cuvier’s beaked whale in the GOM is physically and ecologically separated from other Cuvier’s beaked whale populations, and is delimited by international governmental boundaries within which there are differences in management and regulations, thereby qualifying the GOM population as discrete under the DPS policy. Further, the petitioner states that the Cuvier’s beaked whale Northern GOM stock designation under the MMPA is based on distribution data that supports their conclusion that the population is delimited by international boundaries. The petitioner asserts that Cuvier’s beaked whales in the GOM are physically separated from populations in the Caribbean and North Atlantic. The petition describes the GOM as being semi-enclosed by land on all sides, with an opening to the Caribbean Sea through the Yucatan Channel and another opening to the North Atlantic Ocean through the Straits of Florida. According to the petition, the population occurs along the continental shelf and deepwater canyons in the northern GOM (Roberts et al., 2016). The petition states that sightings have occurred almost exclusively in the northern GOM, but notes a limited number of unconfirmed sightings in the Yucatan Channel (NinoTorres et al., 2015) and in the Straits of Florida off northern Cuba (Jefferson and Lynn 1994; Whitt et al., 2014). We do not find that the information presented in the petition and in our files supports the conclusion that Cuvier’s beaked whales in the GOM are physically isolated from other Cuvier’s beaked whale populations. While the GOM is a semi-enclosed sea, no information suggests that Cuvier’s beaked whales in the GOM are unable to travel through the Yucatan Channel or Straits of Florida. As the petitioner acknowledges, there are confirmed and unconfirmed sightings data of the species potentially from the Yucatan channel and Straits of Florida. The petitioner provided information on a confirmed sighting of four Cuvier’s beaked whales in the Straits of Florida offshore of Havana Cuba (Jefferson and Lynn, 1994, as cited in Whitt et al., 2014). Additionally, data on other cetacean species that prefer similar habitats (slopes, canyons, and escarpments in the northern GOM) and have similar foraging niches VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 (undertaking long, deep dives to hunt for mesopelagic squid and fish) to the Cuvier’s beaked whale suggests individuals can travel out of the GOM and into the North Atlantic Ocean and Caribbean Sea. For example, opportunistic tracking data from two rehabilitated short-finned pilot whales showed that the animals released off the Florida Keys traveled through the Straits of Florida to the Blake Plateau in the North Atlantic Ocean (offshore North and South Carolina) (Wells et al., 2013). Similar movement patterns have been observed in a rehabilitated and released Risso’s dolphin. In that case, tracking data from an animal released offshore of Sarasota, Florida, in the GOM, traveled more than 3,300 km into the North Atlantic Ocean off Delaware (Wells et al., 2009). In addition, male sperm whales are known to move in and out of the GOM from the Atlantic Ocean and Caribbean Sea (Best 1979; Rice 1989; Whitehead 1993; and Englehaupt et al., 2009). The GOM is connected to the Caribbean Sea via the Yucatan Channel, a relatively deep (2,000 m) channel, and to the Atlantic Ocean through the Straits of Florida, a channel with a depth of about 860 m (Davis and Fargion, 1996). These channels likely allow cetaceans, like Cuvier’s beaked whale, to migrate to and from the North Atlantic Ocean and Caribbean Sea. No information in the petition or readily available in our files supports the conclusion that the channels are an impediment to their movement. The limited information available suggests that cetaceans that occur in deep water habitat along the continental slope similar to Cuvier’s beaked whales, including the shortfinned pilot whale, Risso’s dolphin, and sperm whale, can move into the North Atlantic Ocean and Caribbean Sea from the GOM. This, in combination with the confirmed and unconfirmed sightings data of Cuvier’s beaked whales in the Yucatan channel and Straits of Florida, indicates that Cuvier’s beaked whales in the GOM can travel freely outside of the GOM. As such, we find that the petition does not present substantial information indicating that the Cuvier’s beaked whale in the GOM are markedly separated as a consequence of physical factors from Cuvier’s beaked whale populations worldwide. The petitioner also asserts that the GOM Cuvier’s beaked whales are ecologically separated from neighboring Cuvier’s beaked whale populations and bases this conclusion on data from other regions of the world where Cuvier’s beaked whale populations exhibit longterm site fidelity behavior. Specifically, the petition cites McSweeney et al. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 (2007), who studied site fidelity, patterns of association, and movements of Cuvier’s beaked whales (n=35) off Hawaii using a 21- year photographic data set, which included re-sightings of 14 individuals over the course of 15 years. The mean distance between resightings ranged from 2.88 km to 88.75 km, which the petitioner states is relatively small. The petition also states that Cuvier’s beaked whales are yearround residents off Cape Hatteras, North Carolina, and cite to Baird et al. (2016), McLellan et al. (2015), and unpublished data. Specifically, Baird et al., (2016) found that satellite tagged individuals (n=9) remained in the study area off Cape Hatteras, where the Gulf Stream crosses the continental shelf, for up to two months. According to the petitioner, photo identification studies (A. Read unpublished data) and aerial surveys also confirm long-term site fidelity in this area (McLellan et al., 2015). The petitioner references a publication abstract (McLellan et al., 2015) that states that aerial surveys found Cuvier’s beaked whale to be the most commonly encountered species, observed in every month of the year off Cape Hatteras. Based on these studies, the petitioner asserts that it is reasonable to infer that Cuvier’s beaked whales in the GOM exhibit similar site fidelity, and, as a result, are ecologically isolated from Cuvier’s beaked whale populations in the North Atlantic and Caribbean. The petition did not provide the reference for ‘‘A. Read unpublished data,’’ and we were unable to locate it within our files. We evaluated the information provided in the petition and readily available in our files to determine if it presented substantial information indicating that Cuvier’s beaked whale populations exhibit long-term site fidelity in other locations and whether Cuvier’s beaked whales in the GOM would exhibit a similar behavior that could suggest ecological separation. First, we evaluated if information provided in the petition supports the assertion that Hawaii’s population of Cuvier’s beaked whale exhibits longterm site fidelity. McSweeney et al. (2007) is the primary source cited by the petitioner to support this claim. This study described site fidelity and movement patterns using photographic data for Cuvier’s and Blainville’s beaked whales off Hawaii’s west coast. A total of 4,611 photographs of Cuvier’s beaked whales were obtained from 35 encounters (23 directed, 12 opportunistic) from 1986 to 2006. The authors determined that the photographs represented 35 individuals. E:\FR\FM\25MRN1.SGM 25MRN1 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices Of the 35 individuals, 21 (60 percent) were seen only once and 14 (40 percent) were seen on two or more occasions (McSweeney et al., 2007). Five adult males and nine adult females (n=14) were seen more than once. The interval between the first and last sighting of adult males ranged from 3 to 728 days (median = 11 day). The interval between the first and last sighting of adult females ranged from 16 to 5,676 days (median = 737 days). Re-sighting intervals (i.e., duration between sightings) were significantly longer for adult females (median = 432 days, range = 16 to 5,676 days) than for adult males (median = 11 days, range = 3 to 728 days). McSweeney et al. (2017) acknowledge that, depending on the species, male cetaceans often travel long distances in search of mating opportunities, whereas females will remain in an area or return to an area if prey are abundant or reliably concentrated (Cluttton-Brock, 1989). Of the 14 individuals re-sighted, there were 13 within year re-sightings and 8 across year re-sightings. While some individual whales were re-sighted during the 21year data set, the intervals between resightings spanned multiple years. It is unknown whether the whales remained in the area or moved out of the area in the years between sightings. McSweeney et al. (2007) acknowledge that these Cuvier’s beaked whales have a broader range and that the study area does not represent their full range. While McSweeney et al. (2007) suggest long-term repeated use of an area off Hawaii’s west coast by some Cuvier’s beaked whales (n=14), the full range of those individuals is unknown. The movements of those 14 individuals during long gaps between re-sightings (sometimes spanning years) are unknown and it is likely that their movements extended beyond the study area, as noted by the study’s authors. In addition, 60 percent of the Cuvier’s beaked whales recorded in McSweeney et al. (2017) exhibited no site fidelity. Thus, McSweeney et al., (2007) does not present substantial evidence indicating that Cuvier’s beaked whales exhibit long-term population level site fidelity. Next, we evaluated the information in the petition and readily available in our files to determine whether it supports the petitioner’s assertion that Cuvier’s beaked whales in the northwest Atlantic exhibit high site fidelity, in support of their claim that Cuvier’s beaked whales in the GOM would exhibit similar behavior. Baird et al. (2016) provided information on the movements and habitat use of Cuvier’s beaked whales tagged off Cape Hatteras, North VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 Carolina. Six Cuvier’s beaked whales were tagged in 2015 and three animals were tagged in 2014. During 2 to 59 days of tracking, all of the tagged Cuvier’s beaked whales remained on or near the continental slope off Cape Hatteras, which the authors suggest provide more evidence of a resident population than an oceanic population. Similarly, using sighting data from aerial surveys and strandings records, McLellan et al. (2018) concluded that the waters off Cape Hatteras provide important yearround habitat for multiple species of beaked whales. The waters off Cape Hatteras, at the convergence of two major currents, the Labrador Current and the Gulf Stream, are an area of high biological productivity (Schaff et al., 1992). Roberts et al. (2016) also identified a high level of marine mammal biodiversity and beaked whale abundance off Cape Hatteras. These studies indicate the waters offshore Cape Hatteras are an area of high productivity and an important habitat for marine mammals, including several species of beaked whales. However, these studies do not demonstrate that individual Cuvier’s beaked whales are year-round residents of the Cape Hatteras area. Rather, the limited tracking studies and sightings data only demonstrate that Cuvier’s beaked whales can regularly be found in this area of high biological productivity, likely for foraging purposes, for a period of up to 59 days. Given that the duration of the available tracking study was limited to a maximum of about 2 months, the data do not comprise substantial information indicating that any individual whale—much less any population of whales—resides exclusively in that area. Finally, we did not find any information in the petition or readily available in our files indicating that Cuvier’s beaked whales in the GOM exhibit long-term site fidelity. Site fidelity is the tendency for individuals to return to the same area repeatedly or remain in an area for an extended period, and may occur at both breeding and feeding areas. Site fidelity, in and of itself, does not necessarily mean that a population is distinct as it is possible that individuals are emigrating or migrating within the population. We found no information in the petition or readily available in our files addressing site fidelity of Cuvier’s beaked whales in the GOM. We conclude that the available information does not suggest that the Cuvier’s beaked whales generally exhibit site fidelity to a degree that would result in the ecological separation of Cuvier’s beaked whales in PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 11063 the GOM. The studies cited by the petitioner do not present substantial information that Cuvier’s beaked whale off the west coast of Hawaii or off Cape Hatteras, North Carolina, are distinct from other populations of the same taxon because of site fidelity. The majority of individuals studied by McSweeney et al. (2007) did not show repeated use of steep and isolated Hawaiian shelf waters, and those that were re-sighted had long intervals of time between encounters to move and mix with a broader population. Similarly, although McLellan et al. (2018) suggest the productive mixing zone off Cape Hatteras is an important year-round habitat for Cuvier’s beaked whales, their tracking data were of insufficient duration to suggest individual whales do not mix with a broader population to an extent that would imply a markedly separate population. In addition, the GOM is a very different ecosystem from the Hawaiian shelf or the Cape Hatteras convergence zone, characterized by more broadly distributed resources, more ephemeral upwelling current patterns, and a more gradual continental slope. It is reasonable to assume that different oceanic features can influence prey availability, which can drive beaked whale distributions or preferences for particular foraging areas. Thus, after examining the petition’s references and information readily available in our files, we conclude there is not sufficient information to indicate that the Cuvier’s beaked whales in the GOM are behaviorally or ecologically separated from other Cuvier’s beaked whale populations. The spatial and temporal movement patterns throughout this species’ range are largely unknown and no information was presented for the putative GOM DPS. Although some studies have suggested that individual Cuvier’s beaked whales may exhibit some site-fidelity and repeated use of waters off Hawaii’s west coast and Cape Hatteras, those findings do not support the petitioner’s conclusion that the Cuvier’s beaked whales in the GOM are markedly separate from other neighboring areas. Additionally, no information in our files or in the petition indicates that Cuvier’s beaked whales in the GOM are functioning independent of other populations through ecological or behavioral processes such as reproduction, communication, or foraging. Although the referenced studies provide evidence of repeated use of certain areas by Cuvier’s beaked whales, they do not provide substantial evidence indicating that Cuvier’s beaked whale individuals exhibit long-term E:\FR\FM\25MRN1.SGM 25MRN1 11064 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices site-dependency that might lead to the separation of Cuvier’s beaked whales in the GOM. The available information indicates that Cuvier’s beaked whales have extensive ranges with substantial mixing, which is further supported by genetic evidence confirming that Cuvier’s worldwide represent a single independent genetic entity (Dalebort et al., 2005). As such, the available information does not constitute substantial information indicating that Cuvier’s beaked whales in the GOM are discrete from Cuvier’s beaked whales worldwide because of ecological or behavioral factors. No other information on other physical, physiological, ecological, or behavioral factors for the GOM population that would suggest marked separation from other populations was in the petition or readily available in our files. While the petitioner did not describe the genetic information in their evaluation of the discreteness criteria, we have included this information here because quantitative measures of genetics can provide evidence of separation from other populations. Although there are few samples available for genetic investigation of population structure of Cuvier’s beaked whale, the data suggest limited gene flow among ocean basins. Daleboat et al. (2005) presented the first description of phylogeographic structure among Cuvier’s beaked whales worldwide using mitochondrial DNA (mtDNA) control sequences obtained from strandings (n = 70), incidental fisheries takes (n =11), biopsy (n = 1) and whalemeat markets (n = 5). Specimens were grouped in ocean basins and regions within ocean basins as follows: Southern Hemisphere, n = 25 (South Pacific, n = 19; Indian Ocean, n = 6); North Pacific, n = 31 (Eastern-Central, n = 22; Western, n = 9); North Atlantic, n = 31 (Eastern, n = 5; Mediterranean, n = 12; Western-Tropical, n = 14). Strong mtDNA differentiation was observed among Cuvier’s beaked whales worldwide, with over 42 percent of the total molecular variance attributed to variation between the three ocean basins (i.e., Southern Hemisphere, North Atlantic, and North Pacific). Phylogenetic reconstruction revealed strong frequency differences among ocean basins, but no reciprocal monophyly or fixed character differences. The estimated rates of female migration among ocean basins are low (≤ 2 individuals per generation or 15 years). These results revealed that there is little movement of female Cuvier’s beaked whales among the three ocean basins. The authors note that VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 regional sample size was too small to detect subdivisions within ocean basins except in the Mediterranean region (n =12) where the Cuvier’s beaked whale population was highly differentiated from those whales in the North Atlantic Ocean basin. The phylogeographic pattern revealed that the population in the Mediterranean differed significantly from eastern Atlantic and westerntropical Atlantic, but the latter two did not differ significantly from one another (Dalebout et al., 2005). The authors note that few conclusions can be drawn about the possible existence of regional divisions within other basins until more comprehensive sampling is conducted. While mtDNA evidence shows some population structuring indicating differences between Cuvier’s beaked whale populations in the Southern Hemisphere, North Pacific and North Atlantic, it does not indicate that the Cuvier’s beaked whales in the GOM are genetically separated from neighboring populations. In fact, while limited in sample size, the mtDNA samples from the GOM (n = 1) were not significantly different from those samples from the eastern Atlantic (n = 5) and western tropical Atlantic (n = 13). Thus, the available mtDNA evidence does not suggest population structuring between the GOM and North Atlantic samples. In addition, because mtDNA is maternally inherited, differences in mtDNA haplotypes between populations do not necessarily mean that the populations are substantially reproductively isolated from each other because they do not provide any information on males. In some cases, mtDNA may indicate discreteness if female and male movement patterns are the same, but for species in which male and female movements differ, mtDNA is not sufficient to evaluate the discreetness in a population (see e.g., loggerhead sea turtle, 68 FR 53947, September 15, 2003 at 53950–51 and Conant et al., 2009, at 18, 22, 25–28; southern resident killer whale, Krahn et al., 2002, at 23–30). The intermediate levels of mtDNA diversity observed in Cuvier’s beaked whale samples suggest that social groups are unlikely to be strongly matrifocal (Dalebout et al., 2005). Additionally, the mtDNA evidence for Cuvier’s beaked whales is not coupled with nuclear DNA evidence and, at this time, it is unknown if male Cuvier’s beaked whales take seasonal migrations or whether sexes differ temporally or spatially in their distribution. As such, the available genetic evidence does not provide substantial information indicating that Cuvier’s beaked whales in the GOM are markedly separated PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 from Cuvier’s beaked whales worldwide. We therefore conclude that the information available in our files does not provide substantial information that Cuvier’s beaked whales in the GOM are markedly separate from other populations of Cuvier’s beaked whales as a consequence of quantitative measures of genetics. Finally, the petitioner asserts that international boundaries and differences in the control of exploitation, habitat management, and regulatory mechanisms among the United States, Mexico, and Cuba qualify Cuvier’s beaked whales in the GOM as discrete under the DPS policy. The petitioner states that these differences are highly significant in light of Section 4(a)(1)(D) of the ESA. In support, the petition states that Cuvier’s beaked whales in the GOM are partly delineated by the international boundaries of Mexico and Cuba and therefore are subject to different management mechanisms that are limited in comparison to those in the United States. The only existing foreign or international regulations cited in the petition are the International Whaling Commission (IWC) and Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). The petition states that these regulations do not address current threats to the GOM population. We examined whether a delineation of a DPS could be made based on international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. The petition provides no information regarding Mexico or Cuba’s regulatory mechanisms and does not discuss how they differ from those in the United States. In the United States, the Cuvier’s beaked whale is protected by the MMPA (16 U.S.C. 1361 et seq.). The MMPA includes a general moratorium on the ‘‘taking’’ of marine mammals by any person subject to the jurisdiction of the United States within the United States, its territorial waters, the U.S. exclusive economic zone (EEZ), or on the high seas, which include for purposes of the MMPA, foreign EEZs (16 U.S.C. 1371). The MMPA also contains certain import restrictions and sets forth a national policy to prevent marine mammal species or population stocks from diminishing to the point where they are no longer a significant functioning element of their ecosystem. While the petition asserts that the regulatory mechanisms in Mexico and Cuba are limited and are markedly different from those in the U.S., the E:\FR\FM\25MRN1.SGM 25MRN1 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices petition fails to include any discussion related to the existing regulatory mechanisms for those countries to support its assertion. The information readily available in our files indicates that in Cuba all marine mammals are afforded protections under the Environmental Law 81, the Fishery Decree-Law 164, and the Protected Areas Decree-Law 201. The Ministry of Science Technology and Environment enacted Resolution 160/2011, listing all marine mammals as ‘Species with Special Significance’ for the country. The information readily available in our files also indicates that the government of Mexico has several environmental laws and statutes that offer protections for marine mammals, including the General Law on Ecological Equilibrium and Environmental Protection, the General Law on Wildlife, and Fisheries Law. Neither the petition nor the information in our files provide information supporting the petitioner’s claim that control of exploitation, management of habitat, conservation status, or regulatory mechanisms for the Cuvier’s beaked whale in the Gulf of Mexico differ significantly across international boundaries. With regard to international regulatory mechanisms, the U.S., Mexico, and Cuba are all parties to the CITES. The Cuvier’s beaked whale is listed on CITES Appendix I, which means, aside from exceptional circumstances, commercial trade of products of Cuvier’s beaked whale across international borders of member countries is prohibited. Lastly, the IWC was established under the International Convention for the Regulation of Whaling, signed in 1946. The IWC established an international moratorium on commercial whaling for all large whale species in 1982, effective in 1986. This moratorium affected all member nations (IWC 2009), including Mexico and numerous other nations within the range of Cuvier’s beaked whale. Based on the above, we have no information from which to conclude that the GOM population of Cuvier’s beaked whale is discrete from other populations due to differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms that are significant in light of Section 4(a)(1)(D) of the ESA. The Relationship Between ‘‘Stock’’ and DPS The petition notes that the Northern GOM Cuvier’s beaked whale is managed as a stock under the MMPA (https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessment-reports- VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 species-stock)). The petitioner states that the Cuvier’s beaked whale Northern GOM stock designation under the MMPA included distribution information, which supports their assertion that the GOM whales are delimited by international boundaries, meeting the discreteness criteria under the DPS. Under the MMPA, we divided all marine mammal species into management units (stocks) based on distinct oceanographic regions (Barlow et al., 1995; Wade and Angliss 1997). These stocks include Cuvier’s beaked whales in Alaska, California- OregonWashington, Hawaii, Puerto Rico and U.S. Virgin Islands, Western North Atlantic, and Northern GOM. We consider a number of different factors when identifying marine mammal stocks under the MMPA including: (1) Distribution and movements; (2) population trends; (3) morphological differences; (4) differences in life history; (5) differences in genetics; (6) contaminant and natural isotope loads; (7) parasite differences; and (8) oceanic habitat differences (NMFS 2005). As the petitioner acknowledges, a stock under the MMPA is not equivalent to a DPS under the ESA. As discussed in the Northern GOM Cuvier’s beaked whale stock assessment report (Waring et al., 2012), there is no stock differentiation between Cuvier’s beaked whales in the GOM and those in nearby waters. In the absence of information, a species’ range in an ocean can be divided into defensible management units (Waring et al., 2012) and examples of stock areas include oceanographic regions (e.g., GOM, Gulf of Alaska, California Current) (Wade and Angliss, 1997; Barlow et al., 1995). Thus, we considered the Cuvier’s beaked whales in the Northern GOM as a separate stock for management purposes under the MMPA (Blaylock et al., 1995). However, as described above, our DPS policy contains different criteria for identifying a population as a DPS. The DPS policy requires that a population be both discrete from other populations and significant to the taxon to which it belongs. While in most circumstances we evaluate some or all of the same evidence in determining whether a population of marine mammals should be considered a stock under the MMPA or a DPS for purposes of the ESA, our determination will not always be the same for both purposes. In this case, we do not find that the distribution information for the Cuvier’s beaked whale in the GOM satisfies either of the conditions for discreteness under the DPS policy. The available information does not suggest that the Cuvier’s PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 11065 beaked whale in the GOM is markedly separate from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors, nor is it limited by international governmental boundaries within which difference in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. At this time, we find that the information in the petition and in our files, including that information which was considered in identifying the stock for management purposes under the MMPA, do not suggest that the Cuvier’s beaked whale in the GOM may be discrete under the DPS policy. Conclusion Regarding DPS Overall, based on the information in the petition and readily available in our files, and guided by the DPS Policy criteria, we are unable to find evidence to suggest that the GOM population of Cuvier’s beaked whale may be discrete. Because the data do not suggest that the Cuvier’s beaked whales in the GOM may be discrete from other Cuvier’s beaked whale populations, we are not required to determine whether the Cuvier’s beaked whales in the GOM may be significant to the global taxon of Cuvier’s beaked whales, per the DPS policy. Therefore, based upon the information from the petitioner and the information readily available in our files, we conclude that the petition does not present substantial information to indicate that the GOM population of Cuvier’s beaked whale may qualify as a DPS under the DPS Policy. Other Information Provided by the Petitioner The petitioner provided information on the general life history and biology of the Cuvier’s beaked whale, a global abundance estimate, abundance estimates for the northern GOM stock, and threats (e.g., oil spills, oil and gas exploration, vessel strike, acoustic impacts, fishery entanglement etc.) to Cuvier’s beaked whales in the GOM. Because we conclude that the petition does not present substantial information to indicate that the GOM population may qualify as a DPS under the DPS Policy, the petitioned entity does not constitute a ‘‘species’’ that is eligible for listing under the ESA. Thus, we do not need to evaluate whether the information in the petition indicates that this population faces an extinction risk that is cause for concern. E:\FR\FM\25MRN1.SGM 25MRN1 11066 Federal Register / Vol. 84, No. 57 / Monday, March 25, 2019 / Notices Significant Portion of Its Range As an alternative to listing the GOM Cuvier’s beaked whale as a DPS, the petitioner requests the Cuvier’s beaked whale be listed because the species is threatened or endangered in a SPOIR, which the petition identifies as the GOM. The petitioner states that NMFS incorrectly interprets SPOIR in the NMFS/FWS SPOIR Policy (79 FR 37578; July 1, 2014), and recommends that NMFS should interpret the phrase ‘‘significant portion if its range’’ as a portion of a species’ range that faces high extinction risk (threatened or endangered) and that is biologically significant based on the principles of conservation biology using the concepts of redundancy, resilience, and representation (the three Rs) (Shaffer & Stein 2000). Such concepts can also be expressed in terms of the four population viability characteristics commonly used by NMFS: Abundance, spatial distribution, productivity, and diversity of the species. While the petitioner requests we apply their alternative interpretation of SPOIR, the petition does not include any specific explanation or analysis addressing how the GOM is ‘‘biologically significant’’ based on the concepts of redundancy, resilience, and representation. We acknowledge that the SPOIR Policy’s definition of ‘‘significance’’ has been invalidated in recent litigation involving FWS. See Desert Survivors v. DOI, No. 16-cv-01165–JCS, 2018 WL 2215741 (N.D. Cal. May 15, 2018); Ctr. for Biological Diversity v. Jewell, 248 F. Supp. 3d 946 (D. Ariz. 2017). While we do not apply that definition in this finding, we note that the remainder of the SPOIR Policy remains valid and binding, including the provision that any listings made as a consequence of being threatened or endangered in a SPOIR must be rangewide. For purposes of reviewing this particular petition, but without adopting a standard for other decisions, we analyzed the data provided in the petition and information readily available in our files to see if there is any basis to conclude that the GOM population of Cuvier’s beaked whales is ‘‘significant.’’ As previously discussed, the Cuvier’s beaked whale is among the most common and abundant of all the beaked whales, and their abundance worldwide is likely over 100,000 individuals (Taylor et al., 2008). Cuvier’s beaked whales in the GOM comprise only a very small portion of this relatively large global population (Daleabout et al., 2005; Taylor et al., 2008). The more recent abundance VerDate Sep<11>2014 16:47 Mar 22, 2019 Jkt 247001 estimate (n = 2,910, in Roberts et al., 2016) for the Cuvier’s beaked whales in the GOM indicates that those whales comprise less than 3 percent of the taxon’s global abundance. Additionally, the species has an extensive distribution, with Cuvier’s beaked whales found throughout the world’s oceans, ranging from equatorial tropical to cold temperate waters (Heyning and Mead 2009), and no available information suggests that the Cuvier’s beaked whales in the GOM are physically isolated from other Cuvier’s beaked whale populations (Best 1979; Rice 1989; Whitehead 1993; Englehaupt et al,. 2009; and Wells et al., 2009, 2013). The available genetic evidence also does not provide substantial information indicating that Cuvier’s beaked whales in the GOM are markedly differentiated from Cuvier’s beaked whale worldwide (Dalebout et al., 2005) that may indicate genetic significance. The available genetic evidence indicates the Cuvier’s beaked whale is a single global species (monotypic genus) that is relatively abundant and widely distributed throughout the world’s oceans (Daleabout et al., 2005). There is no evidence of genetic differentiation between Cuvier’s beaked whales in the GOM and neighboring populations, and thus no information to suggest that the loss of the GOM would result in a significant loss in genetic diversity to the species as a whole or affect the species’ ability to adapt to changes in its environment. Based on the information presented in the petition and readily available in our files, we do not find substantial information to suggest that the GOM population may be ‘‘biologically significant’’ to the taxon as a whole based on the concepts of redundancy, resilience, and representation. We therefore conclude that the petition does not present substantial information that the GOM population may be ‘‘significant,’’ nor that it is of such significance that would be commensurate with the SPOIR Policy’s direction that the listing be rangewide. Because the petition does not provide evidence or discussion as to how the GOM qualifies as a SPOIR, and the information in the petition and our files do not support such a conclusion, we conclude that the petition does not present substantial information indicating that listing Cuvier’s beaked whale as endangered or threatened in a SPOIR may be warranted. Petition Finding After reviewing the information contained in the petition, as well as information readily available in our PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 files, we conclude the petition does not present substantial scientific or commercial information indicating that the petitioned action may be warranted. References Cited A complete list of all references is available upon request from the Protected Resources Division of the NMFS Southeast Regional Office (see ADDRESSES). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: March 20, 2019. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2019–05669 Filed 3–22–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XG506 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to In-Water Demolition and Construction Activities Associated With a Harbor Improvement Project in Statter Harbor, Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; Issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the City of Juneau to incidentally harass, by Level A and Level B harassment, marine mammals during construction activities associated with harbor improvements at Statter Harbor in Auke Bay, Alaska DATES: This authorization is effective from October 1, 2019 to September 30, 2020. FOR FURTHER INFORMATION CONTACT: Sara Young, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https:// www.fisheries.noaa.gov/national/ SUMMARY: E:\FR\FM\25MRN1.SGM 25MRN1

Agencies

[Federal Register Volume 84, Number 57 (Monday, March 25, 2019)]
[Notices]
[Pages 11058-11066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05669]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 180628590-8590-01]
RIN 0648-XG333


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Cuvier's Beaked Whale in the Gulf of Mexico as Threatened 
or Endangered Under the Endangered Species Act

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

ACTION: Notice; 90-Day petition finding.

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SUMMARY: We (NMFS) announce a negative 90-day finding on a petition to 
list the Cuvier's beaked whale (Ziphius cavirostris) in the Gulf of 
Mexico (GOM) as a threatened or endangered distinct population segment 
(DPS) under the Endangered Species Act (ESA). As an alternative to 
listing a DPS, the petition requests that we list the Cuvier's beaked 
whale because it is threatened or endangered in a significant portion 
of its range (SPOIR). The petitioner also requests that we designate 
critical habitat. We find that the petition and information in our 
files do not present substantial scientific or commercial information 
indicating that the Cuvier's beaked whale in the GOM qualifies as a 
DPS, eligible for listing under the ESA. Similarly, we find that the 
petition and information readily available in our files do not present 
substantial scientific or commercial information indicating that 
listing Cuvier's beaked whale as threatened or endangered in a SPOIR 
may be warranted.

ADDRESSES: Copies of the petition and related materials are available 
upon request from the Assistant Regional Administrator, Protected 
Resources

[[Page 11059]]

Division, Southeast Regional Office, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701, or online at: https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings.

FOR FURTHER INFORMATION CONTACT: Calusa Horn, NMFS Southeast Region, 
727-824-5312, or Maggie Miller, NMFS Office of Protected Resources, 
301-427-8457.

SUPPLEMENTARY INFORMATION: 

Background

    On October 11, 2017, we received a petition from the Center for 
Biological Diversity to list the Cuvier's beaked whale (Ziphius 
cavirostris) population in the GOM as an endangered or threatened DPS 
or, alternatively, list the Cuvier's Beaked whale because it is 
threatened or endangered in a SPOIR, under the ESA. The petitioner also 
requested designation of critical habitat. The petitioner asserts that 
the Cuvier's beaked whale population in the GOM qualifies as a DPS 
because the population: (1) Is physically separated from other 
populations of the eastern Caribbean and northwestern Atlantic Ocean, 
(2) exhibits high site fidelity to the GOM, (3) is delimited by 
international governmental boundaries within which there are 
differences in management and regulations, (4) occurs in an ecological 
setting that is unique to the species, and (5) is likely a genetically 
distinct species. The petitioner also states the Marine Mammal 
Protection Act (MMPA) stock designation supports the proposed DPS 
listing under the ESA. Copies of this petition are available from us 
(see ADDRESSES, above).

ESA Statutory and Regulatory Provisions and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce 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 it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), 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, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination must address a species, 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife 
Service (USFWS) (jointly, ``the Services'') policy clarifies the 
agencies' interpretation of the phrase ``distinct population segment'' 
for the purposes of listing, delisting, and reclassifying a species 
under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or 
DPS 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 species are threatened 
or endangered based on any one or a combination of the following five 
section 4(a)(1) factors: The present or threatened destruction, 
modification, or curtailment of habitat or range; overutilization for 
commercial, recreational, scientific, or educational purposes; disease 
or predation; inadequacy of existing regulatory mechanisms to address 
identified threats; or any other natural or manmade factors affecting 
the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by the Services (50 CFR 
424.14(h)(1)(i)) define ``substantial scientific or commercial 
information'' in the context of reviewing a petition to list, delist, 
or reclassify a species as ``credible scientific or commercial 
information in support of the petition's claims such that a reasonable 
person conducting an impartial scientific review would conclude that 
the action proposed in the petition may be warranted.'' Conclusions 
drawn in the petition without the support of credible scientific or 
commercial information will not be considered ``substantial 
information.''
    Our determination as to whether the petition provides substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted will depend in part on the degree to which 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 that contains an analysis of the information presented; (3) is 
accompanied by literature citations that are specific enough for the 
Services to readily locate the information cited in the petition, and, 
to the extent permitted by U.S. copyright law, electronic or hard 
copies of supporting materials; and, (4) for a petition to list, 
delist, or reclassify a species, information to establish whether the 
subject entity is a ``species'' as defined in the Act. See 50 CFR 
424.14(c). Because this is a petition to list a species, we also 
evaluate the degree to which the petition includes the following types 
of information: (1) Information on current population status and trends 
and estimates of current population sizes and distributions, both in 
captivity and the wild, if available; (2) identification of the factors 
under section 4(a)(1) of the ESA that may affect the species and where 
these factors are acting upon the species; (3) whether and to what 
extent any or all of the factors alone or in combination identified in 
section 4(a)(1) of the ESA may cause the species to be an endangered 
species or threatened species (i.e., the species is currently in danger 
of extinction or is likely to become so within the foreseeable future), 
and, if so, how high in magnitude and how imminent the threats to the 
species and its habitat are; (4) information on adequacy of regulatory 
protections and effectiveness of conservation activities by States as 
well as other parties, that have been initiated or that are ongoing, 
that may protect the species or its habitat; and (5) a complete, 
balanced representation of the relevant facts, including information 
that may contradict claims in the petition. See 50 CFR 424.14(d).
    If the petitioner provides supplemental information before the 
initial finding is made and states that it is part of the petition, the 
new information, along with the previously submitted information, is 
treated as a new petition that supersedes the original petition, and 
the statutory timeframes will begin when such supplemental information 
is received. See 50 CFR 424.14(g). We may also consider information 
readily available at

[[Page 11060]]

the time the determination is made. See 50 CFR 424.14(h)(1)(ii). We are 
not required to consider any supporting materials cited by the 
petitioner if the petitioner does not provide electronic or hard 
copies, to the extent permitted by U.S. copyright law, or appropriate 
excerpts or quotations from those materials (e.g., publications, maps, 
reports, letters from authorities). See 50 CFR 424.14(c)(6) and 
424.14(h)(1)(ii).
    The ``substantial scientific or commercial information'' standard 
must be applied in light of any prior reviews or findings we have made 
on the listing status of the species that is the subject of the 
petition. Where we have already conducted a finding on, or review of, 
the listing status of that species (whether in response to a petition 
or on our own initiative), we will evaluate any petition received 
thereafter seeking to list, delist, or reclassify that species to 
determine whether a reasonable person conducting an impartial 
scientific review would conclude that the action proposed in the 
petition may be warranted despite the previous review or finding. Where 
the prior review resulted in a final agency action--such as a final 
listing determination, 90-day not-substantial finding, or 12-month not-
warranted finding--a petitioned action will generally not be considered 
to present substantial scientific and commercial information indicating 
that the action may be warranted unless the petition provides new 
information or analysis not previously considered. 50 CFR 
424.14(h)(iii).
    At the 90-day finding stage, we evaluate the petitioner's request 
based on the information in the petition, including its references, and 
information readily available to us. 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, unless we 
have specific information in our files that indicates 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 dismissed at the 90-day finding stage, so long 
as it is reliable and a reasonable person conducting an impartial 
scientific review would conclude it supports the petitioners' 
assertions. In other words, conclusive information indicating the 
species may meet the ESA's requirements for listing is not required to 
make a positive 90-day finding. We will not conclude that a lack of 
specific information alone necessitates a negative 90-day finding if a 
reasonable person conducting an impartial scientific review would 
conclude that the unknown information itself suggests the species may 
be at risk of extinction presently or within the foreseeable future.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, in light of the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces a degree of extinction risk such that listing, delisting, 
or reclassification may be warranted; this may be indicated in 
information expressly discussing the species' status and trends, or in 
information describing impacts and threats to the species. We evaluate 
any information on specific demographic factors pertinent to evaluating 
extinction risk for the species (e.g., population abundance and trends, 
productivity, spatial structure, age structure, sex ratio, diversity, 
current and historical range, habitat integrity or fragmentation), and 
the potential contribution of identified demographic risks to 
extinction risk for the species. We then evaluate the potential links 
between these demographic risks and the causative impacts and threats 
identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by 
nongovernmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by such organizations or made under other Federal or 
state statutes may be informative, but such classification alone will 
not alone provide sufficient basis for a positive 90-day finding under 
the ESA. For example, as explained by NatureServe, their assessments 
``have different criteria, evidence requirements, purposes, and 
taxonomic coverage than official lists of endangered and threatened 
species'' and, therefore, these two types of lists ``do not necessarily 
coincide'' (http://explorer.natureserve.org/ranking.htm). Additionally, 
species classifications under IUCN and the ESA are not equivalent; data 
standards, criteria used to evaluate species and treatment of 
uncertainty are also not necessarily the same. Thus, when a petition 
cites such classifications, we will evaluate the source of information 
that the classification is based upon in light of the standards on 
extinction risk and impacts or threats discussed above.

Cuvier's Beaked Whale Species Description

    Cuvier's beaked whales are members of the beaked whale family 
(Ziphiidae) and are odontocetes (toothed whales). They can reach 
lengths of about 15-23 ft (4.5-7 m) and weigh 4,000-6,800 lbs (1,845-
3,090 kg). Body size does not differ significantly between males and 
females. These medium-sized whales have round and robust bodies, with a 
triangular ``falcate'' dorsal fin located far down the whale's back. 
Their coloration varies from dark gray to a reddish-brown, with a paler 
counter-shaded underside (Jefferson et al., 1994; Baird 2016).
    The Cuvier's beaked whale has one of the most extensive 
distributions of all beaked whale species, occurring in deep waters 
worldwide and ranging from equatorial tropical to cold-temperate 
waters; they are not known to occur in the high latitude polar waters 
(Dalebout et al., 2005; Heyning and Mead 2009). In the Northern 
Hemisphere, they are known to occur near the Aleutian Islands, Bay of 
Biscay, British Columbia, Gulf of California, GOM, Hawaii, 
Mediterranean Sea, the Shetlands, and the U.S. East and West Coasts. In 
the Southern Hemisphere, they are known to occur near New Zealand, 
South Africa, and Tierra del Fuego. They have also stranded in tropical 
environments such as the Bahamas, Caribbean Sea, and the Galapagos 
Islands. Genetic evidence suggests that Cuvier's beaked whales may 
exhibit seasonal latitudinal migrations, similar to humpback whales 
(Dalebout et al., 2005).

[[Page 11061]]

    Beaked whales appear to have a habitat preference for deep (usually 
greater than 3,300 ft (1,000 m)), complex topographic features such as 
the continental slope and edge, or steep underwater geological features 
like banks, seamounts, and submarine canyons (Whitehead et al., 1997; 
Hooker and Baird, 1999, 2002; Frantzis et al., 2003; MacLeod and Zuur, 
2005, cited in Smith 2010 thesis). Studies on beaked whales have been 
carried out in a number of locations including the Northwest Atlantic 
(Hooker and Baird, 1999), Bahamas (MacLeod and Zuur, 2005), the 
Ligurian Basin (D'Amico et al., 2003; Moulins et al, 2007), Hawaii 
(Baird et al., 2004; 2006) and Greece (Frantzis et al., 2002). The 
Cuvier's beaked whale is one of the more frequently observed species of 
beaked whale, and is considered widespread and cosmopolitan (Heyning, 
1989).
    Cuvier's beaked whales mature slowly and can live up to 60 years. 
Females reach sexual maturity at 7-11 years of age, have a gestation 
period of about 1 year, and give birth to a single calf every 2-3 
years. Although few stomach contents have been examined, they appear to 
feed mostly on deep-sea squid, but also sometimes take fish and 
crustaceans (MacLeod et al., 2003; West et al., 2017). Cuvier's beaked 
whales likely forage between approximately 600 m to nearly 3,000 m in 
depth (Baird et al., 2006, 2008, Tyack et al., 2006, Schorr et al., 
2014). Dive data indicates that Cuvier's beaked whale routinely conduct 
some of the deepest and longest dives of any marine mammal (Baird et 
al., 2006; Tyack et al., 2006). Cuvier's beaked whales off the coast of 
Southern California were recorded diving to depths of 2,992 m and 
lasting 137.5 minutes (Schorr et al., 2014).
    The Cuvier's beaked whale is among the most common and abundant of 
all the beaked whales, and their abundance worldwide is likely over 
100,000 individuals (Taylor et al., 2008, downloaded October 9, 2017). 
Under the MMPA, we prepare stock assessment reports for several 
Cuvier's beaked whale stocks that occur in waters under U.S. 
jurisdiction. We currently evaluate Cuvier's beaked whale using six 
geographically defined stocks: The Alaska Stock (n = unknown), the 
California/Oregon/Washington stock (n = 3,274), the Hawaiian stock (n = 
723), the Northern GOM stock (n = 74), the Puerto Rico and U.S. Virgin 
Island stock (n = unknown) and the Western North Atlantic stock (n = 
6,532). The stock assessment reports with population estimates are 
available online (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock). Our stock assessment reports for the Northern GOM stock and 
Western North Atlantic stock do not include a correction factor for 
detection probability and therefore may miscalculate actual abundance.
    Beaked whales are deep divers that spend little time at the surface 
(Reeves et al., 2002), and, therefore, their detection probabilities 
with traditional visual survey methods are low (Barlow and Gisiner, 
2006; Barlow et al., 2006). Thus, reliance on shipboard and aerial 
surveys can result in an underestimate of density if corrections are 
not applied for missed animals (Barlow 2015). The Cuvier's beaked 
whales are long diving animals and remain under the water's surface for 
extended periods, resulting in high availability and perception biases. 
Cuvier's beaked whale detection probability is estimated at 0.23 for 
shipboard surveys and 0.074 for aerial surveys (Barlow 1999). Roberts 
et al. (2016) used a correction factor to account for detection 
probability and estimates the abundance of beaked whales in the 
Northern GOM at n = 2,910. We note that the Robert's et al. (2016) 
estimate of 2,910 Cuvier's beaked whales in the Northern GOM 
substantially exceeded our previous stock assessment report estimate 
for this reason. The previous stock assessment report assumed that all 
animals were seen and recorded (i.e., g(0) = 1) while Robert's et al. 
(2016) estimated detection probabilities by applying a g(0) = 0.23 for 
shipboard sightings and a g(0) = 0.074 aerial sightings. The 
application of the correction factor to account for detection 
probability results in a higher abundance estimate for the Northern GOM 
Cuvier's beaked whale stock than that in the previous stock assessment 
report (Robert's et al., 2016). Under the MMPA, the Cuvier's beaked 
whale Northern GOM stock is not considered ``strategic'' because we 
assume that average annual human-caused mortality and serious injury 
does not exceed potential biological removal (Waring et al., 2012).

Analysis of the Petition

    We first evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(c) and 424.14(d). The petition contains 
information on the Cuvier's beaked whale, including the species 
description, distribution, habitat, population status and trends, and 
factors contributing to the status of Cuvier's beaked whale status in 
the GOM. The petitioner asserts that the Cuvier's beaked whale in the 
GOM qualifies as a DPS, meeting both the discreteness and significance 
requirements, is impacted by habitat degradation by oil spills, 
potential prey reduction due to fisheries, entanglement in fishing 
gear, vessel strikes, noise pollution, water pollution, and climate 
change, and that the loss of this population would represent a 
significant loss for the species' diversity. Alternatively, the 
petition states that the Cuvier's beaked whale is threatened or 
endangered in a SPOIR, which the petition identifies as the GOM.

DPS Analysis

    The petition requests that we list the Cuvier's beaked whales in 
the GOM as a threatened or endangered DPS, and presents arguments that 
Cuvier's beaked whales in the GOM meet the Services' requirements for 
identifying a DPS eligible for listing. Our joint NMFS-USFWS DPS policy 
(61 FR 4722; February 7, 1996) identifies two elements to be considered 
when identifying a DPS: (1) The discreteness of the population segment 
in relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the significance of the population segment to the 
species to which it belongs. A population segment of a vertebrate 
species may be considered discrete if it satisfies either one of the 
following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation); or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the ESA. 
If a population segment is considered discrete under either of the 
above conditions, its biological and ecological significance will then 
be considered in light of Congressional guidance (see Senate Report 
151, 96th Congress, 1st Session) that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. In carrying out this examination, the Services consider 
available scientific evidence of the discrete population segment's 
importance to the taxon to which it belongs.
    In evaluating this petition, we first looked for information to 
suggest that the Cuvier's beaked whale in the GOM may qualify as a DPS. 
We evaluated the information provided in the petition and readily 
available in our files to see if the data suggest that the Cuvier's

[[Page 11062]]

beaked whale in the GOM is discrete, meaning that the population is 
markedly separated as a consequence of physical, physiological, 
ecological, or behavioral factors from other populations of the 
Cuvier's beaked whale.
    According to the petitioner, the Cuvier's beaked whale in the GOM 
is physically and ecologically separated from other Cuvier's beaked 
whale populations, and is delimited by international governmental 
boundaries within which there are differences in management and 
regulations, thereby qualifying the GOM population as discrete under 
the DPS policy. Further, the petitioner states that the Cuvier's beaked 
whale Northern GOM stock designation under the MMPA is based on 
distribution data that supports their conclusion that the population is 
delimited by international boundaries.
    The petitioner asserts that Cuvier's beaked whales in the GOM are 
physically separated from populations in the Caribbean and North 
Atlantic. The petition describes the GOM as being semi-enclosed by land 
on all sides, with an opening to the Caribbean Sea through the Yucatan 
Channel and another opening to the North Atlantic Ocean through the 
Straits of Florida. According to the petition, the population occurs 
along the continental shelf and deep-water canyons in the northern GOM 
(Roberts et al., 2016). The petition states that sightings have 
occurred almost exclusively in the northern GOM, but notes a limited 
number of unconfirmed sightings in the Yucatan Channel (Nino-Torres et 
al., 2015) and in the Straits of Florida off northern Cuba (Jefferson 
and Lynn 1994; Whitt et al., 2014).
    We do not find that the information presented in the petition and 
in our files supports the conclusion that Cuvier's beaked whales in the 
GOM are physically isolated from other Cuvier's beaked whale 
populations. While the GOM is a semi-enclosed sea, no information 
suggests that Cuvier's beaked whales in the GOM are unable to travel 
through the Yucatan Channel or Straits of Florida. As the petitioner 
acknowledges, there are confirmed and unconfirmed sightings data of the 
species potentially from the Yucatan channel and Straits of Florida. 
The petitioner provided information on a confirmed sighting of four 
Cuvier's beaked whales in the Straits of Florida offshore of Havana 
Cuba (Jefferson and Lynn, 1994, as cited in Whitt et al., 2014). 
Additionally, data on other cetacean species that prefer similar 
habitats (slopes, canyons, and escarpments in the northern GOM) and 
have similar foraging niches (undertaking long, deep dives to hunt for 
mesopelagic squid and fish) to the Cuvier's beaked whale suggests 
individuals can travel out of the GOM and into the North Atlantic Ocean 
and Caribbean Sea. For example, opportunistic tracking data from two 
rehabilitated short-finned pilot whales showed that the animals 
released off the Florida Keys traveled through the Straits of Florida 
to the Blake Plateau in the North Atlantic Ocean (offshore North and 
South Carolina) (Wells et al., 2013). Similar movement patterns have 
been observed in a rehabilitated and released Risso's dolphin. In that 
case, tracking data from an animal released offshore of Sarasota, 
Florida, in the GOM, traveled more than 3,300 km into the North 
Atlantic Ocean off Delaware (Wells et al., 2009). In addition, male 
sperm whales are known to move in and out of the GOM from the Atlantic 
Ocean and Caribbean Sea (Best 1979; Rice 1989; Whitehead 1993; and 
Englehaupt et al., 2009). The GOM is connected to the Caribbean Sea via 
the Yucatan Channel, a relatively deep (2,000 m) channel, and to the 
Atlantic Ocean through the Straits of Florida, a channel with a depth 
of about 860 m (Davis and Fargion, 1996). These channels likely allow 
cetaceans, like Cuvier's beaked whale, to migrate to and from the North 
Atlantic Ocean and Caribbean Sea. No information in the petition or 
readily available in our files supports the conclusion that the 
channels are an impediment to their movement. The limited information 
available suggests that cetaceans that occur in deep water habitat 
along the continental slope similar to Cuvier's beaked whales, 
including the short-finned pilot whale, Risso's dolphin, and sperm 
whale, can move into the North Atlantic Ocean and Caribbean Sea from 
the GOM. This, in combination with the confirmed and unconfirmed 
sightings data of Cuvier's beaked whales in the Yucatan channel and 
Straits of Florida, indicates that Cuvier's beaked whales in the GOM 
can travel freely outside of the GOM. As such, we find that the 
petition does not present substantial information indicating that the 
Cuvier's beaked whale in the GOM are markedly separated as a 
consequence of physical factors from Cuvier's beaked whale populations 
worldwide.
    The petitioner also asserts that the GOM Cuvier's beaked whales are 
ecologically separated from neighboring Cuvier's beaked whale 
populations and bases this conclusion on data from other regions of the 
world where Cuvier's beaked whale populations exhibit long-term site 
fidelity behavior. Specifically, the petition cites McSweeney et al. 
(2007), who studied site fidelity, patterns of association, and 
movements of Cuvier's beaked whales (n=35) off Hawaii using a 21- year 
photographic data set, which included re-sightings of 14 individuals 
over the course of 15 years. The mean distance between re-sightings 
ranged from 2.88 km to 88.75 km, which the petitioner states is 
relatively small. The petition also states that Cuvier's beaked whales 
are year-round residents off Cape Hatteras, North Carolina, and cite to 
Baird et al. (2016), McLellan et al. (2015), and unpublished data. 
Specifically, Baird et al., (2016) found that satellite tagged 
individuals (n=9) remained in the study area off Cape Hatteras, where 
the Gulf Stream crosses the continental shelf, for up to two months. 
According to the petitioner, photo identification studies (A. Read 
unpublished data) and aerial surveys also confirm long-term site 
fidelity in this area (McLellan et al., 2015). The petitioner 
references a publication abstract (McLellan et al., 2015) that states 
that aerial surveys found Cuvier's beaked whale to be the most commonly 
encountered species, observed in every month of the year off Cape 
Hatteras. Based on these studies, the petitioner asserts that it is 
reasonable to infer that Cuvier's beaked whales in the GOM exhibit 
similar site fidelity, and, as a result, are ecologically isolated from 
Cuvier's beaked whale populations in the North Atlantic and Caribbean. 
The petition did not provide the reference for ``A. Read unpublished 
data,'' and we were unable to locate it within our files.
    We evaluated the information provided in the petition and readily 
available in our files to determine if it presented substantial 
information indicating that Cuvier's beaked whale populations exhibit 
long-term site fidelity in other locations and whether Cuvier's beaked 
whales in the GOM would exhibit a similar behavior that could suggest 
ecological separation. First, we evaluated if information provided in 
the petition supports the assertion that Hawaii's population of 
Cuvier's beaked whale exhibits long-term site fidelity. McSweeney et 
al. (2007) is the primary source cited by the petitioner to support 
this claim. This study described site fidelity and movement patterns 
using photographic data for Cuvier's and Blainville's beaked whales off 
Hawaii's west coast. A total of 4,611 photographs of Cuvier's beaked 
whales were obtained from 35 encounters (23 directed, 12 opportunistic) 
from 1986 to 2006. The authors determined that the photographs 
represented 35 individuals.

[[Page 11063]]

Of the 35 individuals, 21 (60 percent) were seen only once and 14 (40 
percent) were seen on two or more occasions (McSweeney et al., 2007). 
Five adult males and nine adult females (n=14) were seen more than 
once. The interval between the first and last sighting of adult males 
ranged from 3 to 728 days (median = 11 day). The interval between the 
first and last sighting of adult females ranged from 16 to 5,676 days 
(median = 737 days). Re-sighting intervals (i.e., duration between 
sightings) were significantly longer for adult females (median = 432 
days, range = 16 to 5,676 days) than for adult males (median = 11 days, 
range = 3 to 728 days). McSweeney et al. (2017) acknowledge that, 
depending on the species, male cetaceans often travel long distances in 
search of mating opportunities, whereas females will remain in an area 
or return to an area if prey are abundant or reliably concentrated 
(Cluttton-Brock, 1989). Of the 14 individuals re-sighted, there were 13 
within year re-sightings and 8 across year re-sightings. While some 
individual whales were re-sighted during the 21-year data set, the 
intervals between re-sightings spanned multiple years. It is unknown 
whether the whales remained in the area or moved out of the area in the 
years between sightings. McSweeney et al. (2007) acknowledge that these 
Cuvier's beaked whales have a broader range and that the study area 
does not represent their full range. While McSweeney et al. (2007) 
suggest long-term repeated use of an area off Hawaii's west coast by 
some Cuvier's beaked whales (n=14), the full range of those individuals 
is unknown. The movements of those 14 individuals during long gaps 
between re-sightings (sometimes spanning years) are unknown and it is 
likely that their movements extended beyond the study area, as noted by 
the study's authors. In addition, 60 percent of the Cuvier's beaked 
whales recorded in McSweeney et al. (2017) exhibited no site fidelity. 
Thus, McSweeney et al., (2007) does not present substantial evidence 
indicating that Cuvier's beaked whales exhibit long-term population 
level site fidelity.
    Next, we evaluated the information in the petition and readily 
available in our files to determine whether it supports the 
petitioner's assertion that Cuvier's beaked whales in the northwest 
Atlantic exhibit high site fidelity, in support of their claim that 
Cuvier's beaked whales in the GOM would exhibit similar behavior. Baird 
et al. (2016) provided information on the movements and habitat use of 
Cuvier's beaked whales tagged off Cape Hatteras, North Carolina. Six 
Cuvier's beaked whales were tagged in 2015 and three animals were 
tagged in 2014. During 2 to 59 days of tracking, all of the tagged 
Cuvier's beaked whales remained on or near the continental slope off 
Cape Hatteras, which the authors suggest provide more evidence of a 
resident population than an oceanic population. Similarly, using 
sighting data from aerial surveys and strandings records, McLellan et 
al. (2018) concluded that the waters off Cape Hatteras provide 
important year-round habitat for multiple species of beaked whales. The 
waters off Cape Hatteras, at the convergence of two major currents, the 
Labrador Current and the Gulf Stream, are an area of high biological 
productivity (Schaff et al., 1992). Roberts et al. (2016) also 
identified a high level of marine mammal biodiversity and beaked whale 
abundance off Cape Hatteras. These studies indicate the waters offshore 
Cape Hatteras are an area of high productivity and an important habitat 
for marine mammals, including several species of beaked whales. 
However, these studies do not demonstrate that individual Cuvier's 
beaked whales are year-round residents of the Cape Hatteras area. 
Rather, the limited tracking studies and sightings data only 
demonstrate that Cuvier's beaked whales can regularly be found in this 
area of high biological productivity, likely for foraging purposes, for 
a period of up to 59 days. Given that the duration of the available 
tracking study was limited to a maximum of about 2 months, the data do 
not comprise substantial information indicating that any individual 
whale--much less any population of whales--resides exclusively in that 
area.
    Finally, we did not find any information in the petition or readily 
available in our files indicating that Cuvier's beaked whales in the 
GOM exhibit long-term site fidelity. Site fidelity is the tendency for 
individuals to return to the same area repeatedly or remain in an area 
for an extended period, and may occur at both breeding and feeding 
areas. Site fidelity, in and of itself, does not necessarily mean that 
a population is distinct as it is possible that individuals are 
emigrating or migrating within the population. We found no information 
in the petition or readily available in our files addressing site 
fidelity of Cuvier's beaked whales in the GOM.
    We conclude that the available information does not suggest that 
the Cuvier's beaked whales generally exhibit site fidelity to a degree 
that would result in the ecological separation of Cuvier's beaked 
whales in the GOM. The studies cited by the petitioner do not present 
substantial information that Cuvier's beaked whale off the west coast 
of Hawaii or off Cape Hatteras, North Carolina, are distinct from other 
populations of the same taxon because of site fidelity. The majority of 
individuals studied by McSweeney et al. (2007) did not show repeated 
use of steep and isolated Hawaiian shelf waters, and those that were 
re-sighted had long intervals of time between encounters to move and 
mix with a broader population. Similarly, although McLellan et al. 
(2018) suggest the productive mixing zone off Cape Hatteras is an 
important year-round habitat for Cuvier's beaked whales, their tracking 
data were of insufficient duration to suggest individual whales do not 
mix with a broader population to an extent that would imply a markedly 
separate population. In addition, the GOM is a very different ecosystem 
from the Hawaiian shelf or the Cape Hatteras convergence zone, 
characterized by more broadly distributed resources, more ephemeral 
upwelling current patterns, and a more gradual continental slope. It is 
reasonable to assume that different oceanic features can influence prey 
availability, which can drive beaked whale distributions or preferences 
for particular foraging areas.
    Thus, after examining the petition's references and information 
readily available in our files, we conclude there is not sufficient 
information to indicate that the Cuvier's beaked whales in the GOM are 
behaviorally or ecologically separated from other Cuvier's beaked whale 
populations. The spatial and temporal movement patterns throughout this 
species' range are largely unknown and no information was presented for 
the putative GOM DPS. Although some studies have suggested that 
individual Cuvier's beaked whales may exhibit some site-fidelity and 
repeated use of waters off Hawaii's west coast and Cape Hatteras, those 
findings do not support the petitioner's conclusion that the Cuvier's 
beaked whales in the GOM are markedly separate from other neighboring 
areas.
    Additionally, no information in our files or in the petition 
indicates that Cuvier's beaked whales in the GOM are functioning 
independent of other populations through ecological or behavioral 
processes such as reproduction, communication, or foraging. Although 
the referenced studies provide evidence of repeated use of certain 
areas by Cuvier's beaked whales, they do not provide substantial 
evidence indicating that Cuvier's beaked whale individuals exhibit 
long-term

[[Page 11064]]

site-dependency that might lead to the separation of Cuvier's beaked 
whales in the GOM. The available information indicates that Cuvier's 
beaked whales have extensive ranges with substantial mixing, which is 
further supported by genetic evidence confirming that Cuvier's 
worldwide represent a single independent genetic entity (Dalebort et 
al., 2005). As such, the available information does not constitute 
substantial information indicating that Cuvier's beaked whales in the 
GOM are discrete from Cuvier's beaked whales worldwide because of 
ecological or behavioral factors. No other information on other 
physical, physiological, ecological, or behavioral factors for the GOM 
population that would suggest marked separation from other populations 
was in the petition or readily available in our files.
    While the petitioner did not describe the genetic information in 
their evaluation of the discreteness criteria, we have included this 
information here because quantitative measures of genetics can provide 
evidence of separation from other populations. Although there are few 
samples available for genetic investigation of population structure of 
Cuvier's beaked whale, the data suggest limited gene flow among ocean 
basins. Daleboat et al. (2005) presented the first description of 
phylogeographic structure among Cuvier's beaked whales worldwide using 
mitochondrial DNA (mtDNA) control sequences obtained from strandings (n 
= 70), incidental fisheries takes (n =11), biopsy (n = 1) and whale-
meat markets (n = 5). Specimens were grouped in ocean basins and 
regions within ocean basins as follows: Southern Hemisphere, n = 25 
(South Pacific, n = 19; Indian Ocean, n = 6); North Pacific, n = 31 
(Eastern-Central, n = 22; Western, n = 9); North Atlantic, n = 31 
(Eastern, n = 5; Mediterranean, n = 12; Western-Tropical, n = 14). 
Strong mtDNA differentiation was observed among Cuvier's beaked whales 
worldwide, with over 42 percent of the total molecular variance 
attributed to variation between the three ocean basins (i.e., Southern 
Hemisphere, North Atlantic, and North Pacific). Phylogenetic 
reconstruction revealed strong frequency differences among ocean 
basins, but no reciprocal monophyly or fixed character differences. The 
estimated rates of female migration among ocean basins are low (<= 2 
individuals per generation or 15 years). These results revealed that 
there is little movement of female Cuvier's beaked whales among the 
three ocean basins. The authors note that regional sample size was too 
small to detect subdivisions within ocean basins except in the 
Mediterranean region (n =12) where the Cuvier's beaked whale population 
was highly differentiated from those whales in the North Atlantic Ocean 
basin. The phylogeographic pattern revealed that the population in the 
Mediterranean differed significantly from eastern Atlantic and western-
tropical Atlantic, but the latter two did not differ significantly from 
one another (Dalebout et al., 2005). The authors note that few 
conclusions can be drawn about the possible existence of regional 
divisions within other basins until more comprehensive sampling is 
conducted.
    While mtDNA evidence shows some population structuring indicating 
differences between Cuvier's beaked whale populations in the Southern 
Hemisphere, North Pacific and North Atlantic, it does not indicate that 
the Cuvier's beaked whales in the GOM are genetically separated from 
neighboring populations. In fact, while limited in sample size, the 
mtDNA samples from the GOM (n = 1) were not significantly different 
from those samples from the eastern Atlantic (n = 5) and western 
tropical Atlantic (n = 13). Thus, the available mtDNA evidence does not 
suggest population structuring between the GOM and North Atlantic 
samples. In addition, because mtDNA is maternally inherited, 
differences in mtDNA haplotypes between populations do not necessarily 
mean that the populations are substantially reproductively isolated 
from each other because they do not provide any information on males. 
In some cases, mtDNA may indicate discreteness if female and male 
movement patterns are the same, but for species in which male and 
female movements differ, mtDNA is not sufficient to evaluate the 
discreetness in a population (see e.g., loggerhead sea turtle, 68 FR 
53947, September 15, 2003 at 53950-51 and Conant et al., 2009, at 18, 
22, 25-28; southern resident killer whale, Krahn et al., 2002, at 23-
30). The intermediate levels of mtDNA diversity observed in Cuvier's 
beaked whale samples suggest that social groups are unlikely to be 
strongly matrifocal (Dalebout et al., 2005). Additionally, the mtDNA 
evidence for Cuvier's beaked whales is not coupled with nuclear DNA 
evidence and, at this time, it is unknown if male Cuvier's beaked 
whales take seasonal migrations or whether sexes differ temporally or 
spatially in their distribution. As such, the available genetic 
evidence does not provide substantial information indicating that 
Cuvier's beaked whales in the GOM are markedly separated from Cuvier's 
beaked whales worldwide. We therefore conclude that the information 
available in our files does not provide substantial information that 
Cuvier's beaked whales in the GOM are markedly separate from other 
populations of Cuvier's beaked whales as a consequence of quantitative 
measures of genetics.
    Finally, the petitioner asserts that international boundaries and 
differences in the control of exploitation, habitat management, and 
regulatory mechanisms among the United States, Mexico, and Cuba qualify 
Cuvier's beaked whales in the GOM as discrete under the DPS policy. The 
petitioner states that these differences are highly significant in 
light of Section 4(a)(1)(D) of the ESA. In support, the petition states 
that Cuvier's beaked whales in the GOM are partly delineated by the 
international boundaries of Mexico and Cuba and therefore are subject 
to different management mechanisms that are limited in comparison to 
those in the United States. The only existing foreign or international 
regulations cited in the petition are the International Whaling 
Commission (IWC) and Convention on the International Trade in 
Endangered Species of Wild Fauna and Flora (CITES). The petition states 
that these regulations do not address current threats to the GOM 
population.
    We examined whether a delineation of a DPS could be made based on 
international governmental boundaries within which differences in 
control of exploitation, management of habitat, conservation status, or 
regulatory mechanisms exist that are significant in light of section 
4(a)(1)(D) of the ESA. The petition provides no information regarding 
Mexico or Cuba's regulatory mechanisms and does not discuss how they 
differ from those in the United States. In the United States, the 
Cuvier's beaked whale is protected by the MMPA (16 U.S.C. 1361 et 
seq.). The MMPA includes a general moratorium on the ``taking'' of 
marine mammals by any person subject to the jurisdiction of the United 
States within the United States, its territorial waters, the U.S. 
exclusive economic zone (EEZ), or on the high seas, which include for 
purposes of the MMPA, foreign EEZs (16 U.S.C. 1371). The MMPA also 
contains certain import restrictions and sets forth a national policy 
to prevent marine mammal species or population stocks from diminishing 
to the point where they are no longer a significant functioning element 
of their ecosystem.
    While the petition asserts that the regulatory mechanisms in Mexico 
and Cuba are limited and are markedly different from those in the U.S., 
the

[[Page 11065]]

petition fails to include any discussion related to the existing 
regulatory mechanisms for those countries to support its assertion. The 
information readily available in our files indicates that in Cuba all 
marine mammals are afforded protections under the Environmental Law 81, 
the Fishery Decree[hyphen]Law 164, and the Protected Areas Decree-Law 
201. The Ministry of Science Technology and Environment enacted 
Resolution 160/2011, listing all marine mammals as `Species with 
Special Significance' for the country. The information readily 
available in our files also indicates that the government of Mexico has 
several environmental laws and statutes that offer protections for 
marine mammals, including the General Law on Ecological Equilibrium and 
Environmental Protection, the General Law on Wildlife, and Fisheries 
Law. Neither the petition nor the information in our files provide 
information supporting the petitioner's claim that control of 
exploitation, management of habitat, conservation status, or regulatory 
mechanisms for the Cuvier's beaked whale in the Gulf of Mexico differ 
significantly across international boundaries.
    With regard to international regulatory mechanisms, the U.S., 
Mexico, and Cuba are all parties to the CITES. The Cuvier's beaked 
whale is listed on CITES Appendix I, which means, aside from 
exceptional circumstances, commercial trade of products of Cuvier's 
beaked whale across international borders of member countries is 
prohibited. Lastly, the IWC was established under the International 
Convention for the Regulation of Whaling, signed in 1946. The IWC 
established an international moratorium on commercial whaling for all 
large whale species in 1982, effective in 1986. This moratorium 
affected all member nations (IWC 2009), including Mexico and numerous 
other nations within the range of Cuvier's beaked whale. Based on the 
above, we have no information from which to conclude that the GOM 
population of Cuvier's beaked whale is discrete from other populations 
due to differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms that are significant in 
light of Section 4(a)(1)(D) of the ESA.

The Relationship Between ``Stock'' and DPS

    The petition notes that the Northern GOM Cuvier's beaked whale is 
managed as a stock under the MMPA (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock)). The petitioner states that the Cuvier's beaked 
whale Northern GOM stock designation under the MMPA included 
distribution information, which supports their assertion that the GOM 
whales are delimited by international boundaries, meeting the 
discreteness criteria under the DPS. Under the MMPA, we divided all 
marine mammal species into management units (stocks) based on distinct 
oceanographic regions (Barlow et al., 1995; Wade and Angliss 1997). 
These stocks include Cuvier's beaked whales in Alaska, California- 
Oregon-Washington, Hawaii, Puerto Rico and U.S. Virgin Islands, Western 
North Atlantic, and Northern GOM. We consider a number of different 
factors when identifying marine mammal stocks under the MMPA including: 
(1) Distribution and movements; (2) population trends; (3) 
morphological differences; (4) differences in life history; (5) 
differences in genetics; (6) contaminant and natural isotope loads; (7) 
parasite differences; and (8) oceanic habitat differences (NMFS 2005).
    As the petitioner acknowledges, a stock under the MMPA is not 
equivalent to a DPS under the ESA. As discussed in the Northern GOM 
Cuvier's beaked whale stock assessment report (Waring et al., 2012), 
there is no stock differentiation between Cuvier's beaked whales in the 
GOM and those in nearby waters. In the absence of information, a 
species' range in an ocean can be divided into defensible management 
units (Waring et al., 2012) and examples of stock areas include 
oceanographic regions (e.g., GOM, Gulf of Alaska, California Current) 
(Wade and Angliss, 1997; Barlow et al., 1995). Thus, we considered the 
Cuvier's beaked whales in the Northern GOM as a separate stock for 
management purposes under the MMPA (Blaylock et al., 1995). However, as 
described above, our DPS policy contains different criteria for 
identifying a population as a DPS. The DPS policy requires that a 
population be both discrete from other populations and significant to 
the taxon to which it belongs. While in most circumstances we evaluate 
some or all of the same evidence in determining whether a population of 
marine mammals should be considered a stock under the MMPA or a DPS for 
purposes of the ESA, our determination will not always be the same for 
both purposes. In this case, we do not find that the distribution 
information for the Cuvier's beaked whale in the GOM satisfies either 
of the conditions for discreteness under the DPS policy. The available 
information does not suggest that the Cuvier's beaked whale in the GOM 
is markedly separate from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors, nor is it limited by international governmental boundaries 
within which difference in control of exploitation, management of 
habitat, conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA. At this time, we 
find that the information in the petition and in our files, including 
that information which was considered in identifying the stock for 
management purposes under the MMPA, do not suggest that the Cuvier's 
beaked whale in the GOM may be discrete under the DPS policy.

Conclusion Regarding DPS

    Overall, based on the information in the petition and readily 
available in our files, and guided by the DPS Policy criteria, we are 
unable to find evidence to suggest that the GOM population of Cuvier's 
beaked whale may be discrete. Because the data do not suggest that the 
Cuvier's beaked whales in the GOM may be discrete from other Cuvier's 
beaked whale populations, we are not required to determine whether the 
Cuvier's beaked whales in the GOM may be significant to the global 
taxon of Cuvier's beaked whales, per the DPS policy. Therefore, based 
upon the information from the petitioner and the information readily 
available in our files, we conclude that the petition does not present 
substantial information to indicate that the GOM population of Cuvier's 
beaked whale may qualify as a DPS under the DPS Policy.

Other Information Provided by the Petitioner

    The petitioner provided information on the general life history and 
biology of the Cuvier's beaked whale, a global abundance estimate, 
abundance estimates for the northern GOM stock, and threats (e.g., oil 
spills, oil and gas exploration, vessel strike, acoustic impacts, 
fishery entanglement etc.) to Cuvier's beaked whales in the GOM. 
Because we conclude that the petition does not present substantial 
information to indicate that the GOM population may qualify as a DPS 
under the DPS Policy, the petitioned entity does not constitute a 
``species'' that is eligible for listing under the ESA. Thus, we do not 
need to evaluate whether the information in the petition indicates that 
this population faces an extinction risk that is cause for concern.

[[Page 11066]]

Significant Portion of Its Range

    As an alternative to listing the GOM Cuvier's beaked whale as a 
DPS, the petitioner requests the Cuvier's beaked whale be listed 
because the species is threatened or endangered in a SPOIR, which the 
petition identifies as the GOM.
    The petitioner states that NMFS incorrectly interprets SPOIR in the 
NMFS/FWS SPOIR Policy (79 FR 37578; July 1, 2014), and recommends that 
NMFS should interpret the phrase ``significant portion if its range'' 
as a portion of a species' range that faces high extinction risk 
(threatened or endangered) and that is biologically significant based 
on the principles of conservation biology using the concepts of 
redundancy, resilience, and representation (the three Rs) (Shaffer & 
Stein 2000). Such concepts can also be expressed in terms of the four 
population viability characteristics commonly used by NMFS: Abundance, 
spatial distribution, productivity, and diversity of the species. While 
the petitioner requests we apply their alternative interpretation of 
SPOIR, the petition does not include any specific explanation or 
analysis addressing how the GOM is ``biologically significant'' based 
on the concepts of redundancy, resilience, and representation.
    We acknowledge that the SPOIR Policy's definition of 
``significance'' has been invalidated in recent litigation involving 
FWS. See Desert Survivors v. DOI, No. 16-cv-01165-JCS, 2018 WL 2215741 
(N.D. Cal. May 15, 2018); Ctr. for Biological Diversity v. Jewell, 248 
F. Supp. 3d 946 (D. Ariz. 2017). While we do not apply that definition 
in this finding, we note that the remainder of the SPOIR Policy remains 
valid and binding, including the provision that any listings made as a 
consequence of being threatened or endangered in a SPOIR must be 
rangewide.
    For purposes of reviewing this particular petition, but without 
adopting a standard for other decisions, we analyzed the data provided 
in the petition and information readily available in our files to see 
if there is any basis to conclude that the GOM population of Cuvier's 
beaked whales is ``significant.'' As previously discussed, the Cuvier's 
beaked whale is among the most common and abundant of all the beaked 
whales, and their abundance worldwide is likely over 100,000 
individuals (Taylor et al., 2008). Cuvier's beaked whales in the GOM 
comprise only a very small portion of this relatively large global 
population (Daleabout et al., 2005; Taylor et al., 2008). The more 
recent abundance estimate (n = 2,910, in Roberts et al., 2016) for the 
Cuvier's beaked whales in the GOM indicates that those whales comprise 
less than 3 percent of the taxon's global abundance. Additionally, the 
species has an extensive distribution, with Cuvier's beaked whales 
found throughout the world's oceans, ranging from equatorial tropical 
to cold temperate waters (Heyning and Mead 2009), and no available 
information suggests that the Cuvier's beaked whales in the GOM are 
physically isolated from other Cuvier's beaked whale populations (Best 
1979; Rice 1989; Whitehead 1993; Englehaupt et al,. 2009; and Wells et 
al., 2009, 2013). The available genetic evidence also does not provide 
substantial information indicating that Cuvier's beaked whales in the 
GOM are markedly differentiated from Cuvier's beaked whale worldwide 
(Dalebout et al., 2005) that may indicate genetic significance. The 
available genetic evidence indicates the Cuvier's beaked whale is a 
single global species (monotypic genus) that is relatively abundant and 
widely distributed throughout the world's oceans (Daleabout et al., 
2005). There is no evidence of genetic differentiation between Cuvier's 
beaked whales in the GOM and neighboring populations, and thus no 
information to suggest that the loss of the GOM would result in a 
significant loss in genetic diversity to the species as a whole or 
affect the species' ability to adapt to changes in its environment.
    Based on the information presented in the petition and readily 
available in our files, we do not find substantial information to 
suggest that the GOM population may be ``biologically significant'' to 
the taxon as a whole based on the concepts of redundancy, resilience, 
and representation. We therefore conclude that the petition does not 
present substantial information that the GOM population may be 
``significant,'' nor that it is of such significance that would be 
commensurate with the SPOIR Policy's direction that the listing be 
rangewide. Because the petition does not provide evidence or discussion 
as to how the GOM qualifies as a SPOIR, and the information in the 
petition and our files do not support such a conclusion, we conclude 
that the petition does not present substantial information indicating 
that listing Cuvier's beaked whale as endangered or threatened in a 
SPOIR may be warranted.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
does not present substantial scientific or commercial information 
indicating that the petitioned action may be warranted.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Southeast Regional Office 
(see ADDRESSES).

Authority

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

    Dated: March 20, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2019-05669 Filed 3-22-19; 8:45 am]
BILLING CODE 3510-22-P