We, the NMFS, have completed an update on the status review of Southern Resident killer whales (Orcinus orca) under the Endangered Species Act (ESA). Based on the review of the best available scientific and commercial information, including new data, published papers, and workshop reports available since the review in 2002, we are proposing to list the Southern Resident killer whales as threatened because these killer whales constitute a distinct population segment (DPS) under the ESA and are likely to become endangered in the foreseeable future throughout all or a significant portion of their range. We are not proposing to designate critical habitat at this time, but are requesting public comments on the issues pertaining to this proposed rule.

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 041213348-4348-01; I.D. 110904E]

RIN 0648-AS95

Endangered and Threatened Wildlife and Plants:

Proposed Threatened Status for Southern Resident Killer Whales

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: We, the NMFS, have completed an update on the status review of

Southern Resident killer whales (Orcinus orca) under the Endangered

Species Act (ESA). Based on the review of the best available scientific

and commercial information, including new data, published papers, and

workshop reports available since the review in 2002, we are proposing

to list the Southern Resident killer whales as threatened because these

killer whales constitute a distinct population segment (DPS) under the

ESA and are likely to become endangered in the foreseeable future

throughout all or a significant portion of their range. We are not

proposing to designate critical habitat at this time, but are

requesting public comments on the issues pertaining to this proposed

rule.

DATES: Comments must be received by March 22, 2005. Requests for public

hearings must be made in writing by February 7, 2005. We have already

scheduled public hearings on this proposed rule as follows:

    Thursday, February 17, 2005, from 1:30 - 4:30 pm and 6:30 - 9 pm at

the Seattle Aquarium, 1483 Alaskan Way, in Seattle, WA 98101;

    Monday, February 28, 2005, from 1:30 - 4:30 pm and 6:30 - 9 pm at

the Friday Harbor Labs, 620 University Road, Friday Harbor, WA 98250.

    The 1:30 - 4:30 pm afternoon sessions will be provided for local

practitioners and stakeholder parties, and the 6:30 - 9:30 pm evening

``open house'' sessions are designed for broader public participation.

Additional information regarding the meetings is available via the

Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nwr.noaa.gov.

ADDRESSES: Comments should be submitted to Chief, Protected Resources

Division, 525 NE Oregon Street, Suite 500, Portland, OR, 97232-2737.

Comments may also be submitted electronically via the Federal e-

Rulemaking Portal at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov or by sending an e-mail message to SRKWstatus.nwr@noaa.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Garth Griffin, Northwest Regional

Office, Portland, OR (503) 231-2005, or Ms. Marta Nammack, Office of

Protected Resources, Silver Spring, MD (301) 713-1401, ext. 180.

SUPPLEMENTARY INFORMATION:

Electronic Access

    A list of references cited in this notice is available via the

Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nwr.noaa.gov. Additional information, including

agency reports and written comments, is also available at this Internet

address.

Background

    On May 2, 2001, we received a petition from the Center for

Biological Diversity and 11 co-petitioners (CBD, 2001) to list Southern

Resident killer whales as threatened or endangered under the ESA. On

August 13, 2001, we provided notice of our determination that the

petition presented substantial information that a listing may be

warranted and requested information to assist with a status review to

determine if Southern Resident killer whales warranted listing under

the ESA (66 FR 42499). To assist in the status review, we formed a

Biological Review Team (BRT) of scientists from our Alaska, Northwest,

and Southwest Fisheries Science Centers. We convened a meeting on

September 26, 2001, to gather technical information from co-managers,

scientists, and individuals having research or management expertise

pertaining to killer whale stocks in the North Pacific Ocean.

Additionally, the BRT discussed its preliminary scientific findings

with Tribal, State and Canadian co-managers on March 25, 2002. The BRT

considered information from the petition, the September and March

meetings, and comments submitted in response to our information request

to prepare a final scientific document on Southern Resident killer

whales (NMFS, 2002).

    After conducting the status review, we determined that listing

Southern Resident killer whales as a threatened or endangered species

was not warranted because Southern Resident killer whales did not

constitute a species as defined by the ESA. The population was

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

worldwide) and we found that Southern Resident killer whales did not

meet the significance criteria for consideration as a DPS. The finding,

along with supporting documentation, was published on July 1, 2002 (67

FR 44133). The 2002 status review and other documents supporting the

``not warranted'' finding are available on the Internet (see Electronic

Access). Because of the uncertainties regarding killer whale taxonomy

(i.e., whether the killer whale should be considered as one species or

as multiple species and/or subspecies), we announced that it would

reconsider the taxonomy of killer whales within 4 years.

    The scientific information evaluated during the ESA status review

indicated that Southern Resident killer whales may be depleted under

the Marine Mammal Protection Act (MMPA). We initiated consultation with

the Marine Mammal Commission (Commission) in a letter dated June 25,

2002, and published an advance notice of proposed rulemaking (ANPR) on

July 1, 2002 (67 FR 44132), to request pertinent information regarding

the status of the stock and potential conservation measures that may

benefit these whales. After considering comments received in response

to the ANPR and from the Commission, we published a proposed rule to

designate the Southern Resident stock of killer whales as depleted (68

FR 4747; January 30, 2003) and solicited comments on the proposal.

Based on the best scientific information available, consultation with

the Commission, and consideration of public comment, we determined that

the Southern Resident stock of killer whales was depleted under the

MMPA (68 FR 31980; May 29, 2003) and announced our intention to prepare

a Conservation Plan.

    On December 18, 2002, the Center for Biological Diversity (and

other plaintiffs) challenged our ``not warranted'' finding under the

ESA in U.S. District Court. The U.S. District Court for the Western

District of Washington issued an order on December 17, 2003, which set

aside our ``not warranted'' finding and remanded the matter to us for

redetermination of whether the Southern Resident killer whales should

be listed under the ESA (Center for Biological Diversity, et al., v.

Robert Lohn, et al., 296 F. Supp. 2d. 1223 W.D. Wash. 2003). The court

order held that ``[w]hen the best available science indicates that the

'standard taxonomic distinctions' are wrong . . . NMFS must rely on the

best available science.''

    Although we announced in 2002 that the status of killer whales

would be revisited in 4 years, the schedule for reevaluating Southern

Resident killer

[[Page 76674]]

whales was expedited as a result of the court's order. We reconvened a

BRT in 2004 to consider new scientific and commercial data available

since 2002 and update the status review for Southern Residents in

accordance with that order. We announced the status review update and

requested that interested parties submit pertinent information to

assist us with the update (69 FR 9809, March 2, 2004). In addition, we

co-sponsored a Cetacean Taxonomy workshop in 2004, which included a

special session on killer whales. The papers and reports from the

workshop were made available to the BRT.

    In August 2004, we met with Washington State and Tribal co-managers

to provide information on the status review update and receive

comments. These comments were evaluated by the BRT, who then prepared a

final status review document for Southern Resident killer whales (NMFS,

2004).

Biological Background

    Killer whales are one of the most strikingly pigmented of all

cetaceans, making field identification easy. Killer whales are black

dorsally and white ventrally, with a conspicuous white oval patch

located slightly above and behind the eye. A highly variable gray or

white saddle is usually present behind the dorsal fin. Saddle shape

varies among individuals, pods, and from one side to the other on a

single animal. Sexual dimorphism occurs in body size, flipper size, and

height of the dorsal fin. More detailed information regarding this

species' distribution, behavior, genetics, morphology, and physiology

are contained in the BRT's status review documents (NMFS, 2002, 2004)

and the Washington State Status Report for the Killer Whale (Wiles,

2004).

    Killer whales are classified as top predators in the food chain and

the world's most widely distributed marine mammal (Leatherwood and

Dahlheim, 1978; Heyning and Dahlheim, 1988). Although observed in

tropical waters and the open sea, they are most abundant in coastal

habitats and high latitudes. In the northeastern Pacific Ocean, killer

whales occur in the eastern Bering Sea (Braham and Dahlheim, 1982) and

are frequently observed near the Aleutian Islands (Scammon, 1874;

Murie, 1959; Waite et al., 2001). They reportedly occur year-round in

the waters of southeastern Alaska (Scheffer, 1967) and the intercoastal

waterways of British Columbia and Washington State (Balcomb and Goebel,

1976; Bigg et al., 1987; Osborne et al., 1988). There are occasional

reports of killer whales along the coasts of Washington, Oregon, and

California (Norris and Prescott, 1961; Fiscus and Niggol, 1965; Rice,

1968; Gilmore, 1976; Black et al., 1997; NMFS, 2004), both coasts of

Baja California (Dahlheim et al., 1982), the offshore tropical Pacific

(Dahlheim et al., 1982), the Gulf of Panama, and the Galapagos Islands.

In the western North Pacific, killer whales occur frequently along the

Soviet coast in the Bering Sea, the Sea of Okhotsk, the Sea of Japan,

and along the eastern side of Sakhalin and the Kuril Islands (Tomilin,

1957). There are numerous accounts of their occurrence off China (Wang,

1985) and Japan (Nishiwaki and Handa, 1958; Kasuya, 1971; Ohsumi,

1975). Data from the central Pacific are scarce. They have been

reported off Hawaii, but do not appear to be abundant in these waters

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

    The killer whale is the largest species within the family

Delphinidae. Various scientific names have been assigned to the killer

whale (Hershkovitz, 1966; Heyning and Dahlheim, 1988). These various

names can be explained by sexual and age differences in the size of the

dorsal fin, individual variations in color patterns, and the

cosmopolitan distribution of the animals. The genus Orcinus is

currently considered monotypic with geographical variation noted in

size and pigmentation patterns. Two proposed Antarctic species, O.

nanus (Mikhalev et al., 1981) and O. glacialis (Berzin and Vladimirov,

1982; Berzin and Vladimirov, 1983), both appear to refer to the same

type of smaller individuals. However, because of significant

uncertainties regarding the limited specimen data, these new taxa have

not been widely accepted by the scientific community. New observations

of color pattern, size, habitat and feeding ecology have led to the

conclusion that there are three types of killer whales in Antarctica

(Pitman and Ensor, 2003). Recent genetic investigations note marked

differences between some forms of killer whale (Hoelzel and Dover,

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

Ellis, 2001). Killer whale taxonomy was reviewed as part of the

``Workshop on Shortcomings of Cetacean Taxonomy in Relation to Needs of

Conservation and Management'' held on April 30 - May 2, 2004 in La

Jolla, California, and the results were published in a report (Reeves

et. al., 2004).

Ecotypes of Killer Whales

    Killer whales in the Eastern North Pacific region (which includes

the petitioned whale pods) have been classified into three forms, or

ecotypes, termed residents, transients, and offshore whales.

Significant genetic differences occur among resident, transient, and

offshore killer whales (Stevens et al., 1989; Hoelzel and Dover, 1991;

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

2001; Hoelzel et al., 2002). The three forms also vary in morphology,

ecology, and behavior. All of these characteristics play an important

role in determining whether the monotypic species O. orca can be

subdivided under the ESA.

Resident Killer Whales

    Resident killer whales in the Eastern North Pacific are noticeably

different from both the transient and offshore forms. The dorsal fin of

resident whales is rounded at the tip and falcate (curved and

tapering). Resident whales have a variety of saddle patch pigmentations

with five different patterns recognized (Baird and Stacey, 1988).

Resident whales occur in large, stable pods with membership ranging

from 10 to approximately 60 whales. Their presence has been noted in

the waters from California to Alaska. The primary prey of resident

whales is fish. A recent summary of the differences between resident

and transient forms is found in Baird (2000).

    Resident killer whales in the North Pacific consist of the

following groups: Southern, Northern, Southern Alaska (includes

Southeast Alaska and Prince William Sound whales), western Alaska, and

western North Pacific Residents.

    Southern Residents: The Southern Resident killer whale assemblage

contains three pods-- J pod, K pod, and L pod--and is considered a

stock under the MMPA. Their range during the spring, summer, and fall

includes the inland waterways of Puget Sound, Strait of Juan de Fuca,

and Southern Georgia Strait. Their occurrence in the coastal waters off

Oregon, Washington, Vancouver Island, and more recently off the coast

of central California in the south and off the Queen Charlotte Islands

to the north has been documented. Little is known about the winter

movements and range of the Southern Resident stock. Southern Residents

have not been seen to associate with other resident whales, and

mitochondrial and nuclear genetic data suggest that Southern Residents

interbreed with other killer whale populations rarely if at all

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

Ellis, 2001).

    Northern Residents: The Northern Resident killer whale assemblage

[[Page 76675]]

contains approximately 16 pods. They range from Georgia Strait (British

Columbia) to Southeast Alaska (Ford et al., 2000; Dahlheim, 1997). On

occasion they have been known to occur in Haro Strait (west of San Juan

Island, Washington). Although some overlap in range occurs between the

Northern and Southern Residents, no intermixing of pods has been noted.

However, in Southeast Alaska, Northern Resident whales are seen in

close proximity to Southern Alaska Residents (Dahlheim et al., 1997),

and there may be limited gene flow between the two populations (Hoelzel

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

    Alaska Residents: There are two groups of Alaska Resident animals,

Southern Alaska Residents and Western Alaska Residents. The resident

whales of Southeast Alaska and Prince William Sound comprise the

Southern Alaska Resident killer whale assemblage. At least 15 pods have

been identified in these two regions. Resident killer whales

photographed in Southeast Alaska travel frequently to Prince William

Sound and intermix with all resident groups from this area (Dahlheim et

al., 1997; Matkin and Saulitis, 1997). Prince William Sound Resident

whales have not been seen in Southeast Alaska, but have been noted off

Kodiak Island intermixing with other, yet unnamed, resident pods

(Dahlheim, 1997; NMFS, 2004). Vessel surveys in the southeastern Bering

Sea have provided preliminary estimates of approximately 400 killer

whales (Waite et al., 2001) and preliminary counts, based on photo-

identification, suggest a minimum of 800 individual resident whales

inhabiting this region (NMFS, 2004).

    Western North Pacific Residents: The presence of resident killer

whales has been documented along the coastline of Russia (NMFS, 2004).

It is likely that resident killer whales also occur along the coastline

of Japan, but additional information is required to confirm this

hypothesis.

Transient Killer Whales

    Transient whales occur throughout the Eastern North Pacific with a

preference towards coastal waters. Their geographical range overlaps

that of the resident and offshore whales. Individual transient killer

whales have been documented to move great distances reflecting a large

home range (Goley and Straley, 1994). There are several differences

between transient and resident killer whales; these have most recently

been summarized by Baird (2000). The dorsal fin of transient whales

tends to be more erect (i.e., straighter at the tip) than those of

resident and offshore whales. Saddle patch pigmentation of Transient

killer whales is restricted to three patterns (Baird and Stacey, 1988).

Pod structure is small (e.g., fewer than 10 whales) and dynamic in

nature. The primary prey of transient killer whales is other marine

mammals. Transient whales are not known to intermix with resident or

offshore whales. Recent genetic investigations indicate that up to

three genetically different groups of transient killer whales exist in

the eastern North Pacific (the ``west coast'' Transients, the ``Gulf of

Alaska Transients'' and the AT1 pod) (Barrett-Lennard, 2000; Barrett-

Lennard and Ellis, 2001).

Offshore Killer Whales

    Offshore killer whales are similar to resident whales, but can be

distinguished (i.e., their fins appear to be more rounded at the tip

with multiple nicks on the trailing edge, smaller overall size, less

sexual dimorphism), but these characteristics need to be further

quantified. Offshore whales have been seen in considerably larger

groups (up to 200 whales) than residents or transients have. They are

known to range from central coastal Mexico to Alaska and occur in both

coastal and offshore waters (300 miles off Washington State). While

foraging, it is assumed that the main target is fish, but observations

of feeding events are extremely limited. Offshore whales are not known

to intermingle with resident or transient whales. Genetic analysis

suggests that offshore whales are substantially reproductively isolated

from other killer whale populations (Barrett-Lennard, 2000; Hoelzel et

al., 2004).

Consideration as a ``Species'' under the ESA

    The ESA defines a species to include ``any subspecies of fish or

wildlife or plants, and any distinct population segment of any species

of vertebrate fish or wildlife which interbreeds when mature.''

Guidance on what constitutes a DPS is provided by the joint NMFS-U.S.

Fish and Wildlife Service (FWS) interagency policy on vertebrate

populations (61 FR 4722; February 7, 1996). To be considered a DPS, a

population, or group of populations, must be ``discrete'' from other

populations and ``significant'' to the taxon (species or subspecies) to

which it belongs. A population segment of a vertebrate species may be

considered discrete if:

    (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 also 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, we must then

consider whether the discrete segment is ``significant'' to the taxon

to which it belongs. Criteria that can be used to determine whether the

discrete segment is significant include:

    (1) Persistence of the discrete population segment in an ecological

setting unusual or unique for the taxon;

    (2) Evidence that loss of the discrete population segment would

result in a significant gap in the range of the taxon;

    (3) Evidence that the discrete population segment represents the

only surviving natural occurrence of a taxon that may be more abundant

elsewhere as an introduced population outside its historic range; and

    (4) Evidence that the discrete population segment differs markedly

from other populations of the species in its genetic characteristics.

    A population segment needs to satisfy only one of these criteria to

be considered significant. Furthermore, the list of criteria is not

exhaustive; other criteria may be used, as appropriate.

Killer Whale Taxonomy

    Correctly identifying the killer whale taxon is critical because

the criteria used to evaluate ``significance'' of a DPS are defined

relative to the larger taxon to which it belongs. Uncertainty about the

taxonomic status of killer whales posed a problem for the 2002 BRT. In

particular, it noted that the current designation of one global species

for killer whales was likely inaccurate because there was increasing

evidence to suggest that additional species or subspecies of killer

whales probably exist. The previous prevailing concept of a single

species has recently evolved into a diversity of views that include the

possibility of multiple species. Recent new observations and data on

morphology and genetics of both the Antarctic and North Pacific killer

whales have re-opened the question, and two divergent bodies of expert

opinion have emerged. At the 2004 Cetacean Taxonomy workshop, experts

prepared cases for two taxonomic scenarios. Under one line of

reasoning, killer whales are a single highly variable species, with

locally differentiated

[[Page 76676]]

forms, or ecotypes, representing recently evolved and relatively

ephemeral forms not deserving species status. According to the opposing

body of opinion, congruence of several lines of evidence for the

distinctness of sympatrically (i.e., same place, same time) occurring

forms support multiple species.

    In the North Pacific, the seasonally sympatric resident and

transient killer whale forms show consistent differences in

mitochondrial and nuclear genetic markers, coloration, acoustic calls,

and foraging habits. The majority of experts participating in the

killer whale working group at the Cetacean Taxonomy workshop believed

that the resident and transient ecotypes in the North Pacific might be

distinct species or subspecies.

    The 2004 BRT reviewed new information and the competing lines of

evidence cited during the Cetacean Taxonomy workshop and considered

whether killer whales are a single species or multiple species. After

discussion of this information, the BRT reached consensus that,

although multiple species may exist and may be confirmed in the future,

the present data do not adequately support recognition of any new

species. In particular, the BRT concluded that, provisionally, North

Pacific transients and residents should be considered as belonging to a

single species.

    The 2004 BRT next considered the question of whether North Pacific

residents, transients and offshore whales likely belong to different

subspecies, although current standard taxonomic classification does not

include any named subspecies. A number of differences between residents

and transients have been suggested to support subspecific separation

between the two groups: (1) Residents and transients differ on average

in external morphology, including dorsal-fin size and shape, saddle-

patch shape, and pigmentation; (2) differences between the two ecotypes

have been found in skull features, although the sample size is still

small and uncontrolled for age and sex; (3) residents and transients

are sympatric in the summer range, but no intermingling or

interbreeding has ever been observed; (4) the two groups have markedly

different feeding specializations and social organization; (5) the two

ecotypes exhibit markedly different acoustic dialects and acoustic

practices that may relate to differences in feeding ecology; (6) the

two forms are genetically divergent at both mitochondrial DNA (mtDNA)

and nuclear DNA markers, and the average level of divergence between

the residents and transients is higher than the average level of

divergence within populations of either group; and (7) residents and

transients fall into two different global mtDNA clades. The BRT

concluded that Southern Residents likely belong to a subspecies

separate from that of transients.

    The 2004 BRT agreed that if the Southern Residents belong to a

subspecies separate from that of the transients, the subspecies would

include the Southern Residents and the Northern Residents, as well as

the resident killer whales of Southeast Alaska, Prince William Sound,

Kodiak Island, the Bering Sea and Russia. In short, the subspecies

would include all of the resident, fish-eating killer whales of the

North Pacific. The rationale for this decision was that all of these

groups are apparently fish-eating specialists, occupy relatively

similar habitats, and appear to be genetically more closely related to

each other than to sympatric transient populations. After considering

the arguments for existence of subspecies and the conclusions of the

Cetacean Taxonomy workshop, the BRT concluded that the taxon to use for

determining a DPS under the ESA should be the North Pacific residents,

an unnamed subspecies of O. orca. After considering whether the North

Pacific offshore or eastern Tropical Pacific killer whales belonged to

the same taxon as the North Pacific residents, the BRT concluded that

they did not.

Determination of DPS

Discreteness

    The first criterion for determining if a population or group is a

DPS is that it meets the test for discreteness. Two types of genetic

data for killer whales have proven useful for identifying DPS

boundaries in other species: microsatellite (nuclear) DNA and

mitochondrial DNA (mtDNA). The magnitude of the genetic differences

between Southern and Northern Residents was about half that found

between residents and transients and about twice that found between

Northern Residents and Southern Alaska Residents. These differences

indicate that the Southern Resident, Northern Resident, and Alaska

Resident populations are reproductively isolated populations and that

the isolation of Southern and Northern Residents from each other is

greater than the isolation between Northern and Southern Alaska

Residents. There may be some gene flow between the Northern Residents

and Southern Alaska Residents (Hoelzel et al., 1998; Barrett-Lennard,

2000; Barrett-Lennard and Ellis, 2001).

    Two mtDNA sequences have been found in North Pacific Resident

killer whales. The Southern Residents have one sequence and the

Northern Residents have another that differs by one DNA nucleotide.

Southern Alaska Residents have both sequences. Both males and females

inherit the mtDNA of their mother, so these data indicate that females

from the Southern and Northern Resident populations have not been

migrating between populations within at least the recent evolutionary

history of these populations.

    The understanding of killer whale population genetic structure has

expanded considerably since the last status review in 2002. In

particular, the mtDNA differentiation among eastern North Pacific

resident, transient and offshore populations can now be seen in the

context of variation worldwide. The most notable result from the new

mtDNA data is the lack of strong mtDNA structure worldwide, suggesting

that the current distribution of killer whales populations may be

relatively young on an evolutionary scale (e.g., several hundred

thousand years compared to the approximate 5 million year old age of

the Orcinus genus and possibly associated with a population bottleneck

followed by a worldwide expansion). With regard to identifying DPSs,

one of the implications of the new data is that the relative degree of

mtDNA divergence among populations is not necessarily a good predictor

of the length of time that the populations have evolved independently.

For example, animals with the ``southern resident'' haplotype have been

found in populations from Washington (the Southern Residents), Alaska,

Russia, Newfoundland and the United Kingdom. Evolutionarily, these

populations are almost certainly more closely related to other

geographically proximate populations than to each other (a hypothesis

supported by the microsatellite data) and therefore, share a mtDNA

haplotype purely by chance. Thus, it would be inappropriate to rely

heavily on simple mtDNA divergence as a criterion for identifying a

DPS, especially on a global scale. On a local scale, however, mtDNA

remains useful for helping to identify populations, especially when

combined with other types of information.

    In addition to more mtDNA data, the amount of nuclear

microsatellite data expanded greatly in the last 2 years, both in terms

of numbers of whales and loci analyzed. Within the eastern North

Pacific, both the mtDNA and microsatellite data remain consistent with

a hypothesis of four to five resident populations, at least two to

three transient populations and at least one offshore population. The

issue of

[[Page 76677]]

whether any contemporary gene flow occurs among eastern North Pacific

populations remains unresolved, but the microsatellite data are

consistent with low levels of gene flow (at most a few mating events

among populations per generation). Despite some uncertainty about the

evolutionary history that produced the current patterns of variation,

both the mtDNA and the microsatellite data indicate a high degree of

contemporary reproductive isolation among eastern North Pacific killer

whale populations.

    The BRT concluded that Southern Residents are an independent

population that is discrete from other North Pacific resident killer

whale populations. Southern Resident whales have a core summer range

that is spatially separate from other North Pacific Resident whales

including their closest neighbor, the Northern Residents. In addition,

Southern Residents exhibit behaviors unique with respect to other North

Pacific Residents. Southern Residents exhibit a distinct ``greeting''

behavior. They have not been observed using rubbing beaches or taking

fish from longline gear, which appear to be unique to other North

Pacific Resident Populations. Based on range, demography, behavior, and

genetics, the BRT determined that Southern Residents meet the criterion

for ``discreteness'' under the DPS policy.

Significance

    The second test for determining if a population is a DPS is its

significance to the taxon to which it belongs. The BRT discussed at

length the significance of the Southern Residents with respect to the

North Pacific resident taxon. The BRT concluded that the Southern

Residents are significant with regard to the North Pacific resident

taxon and, therefore, should be considered a DPS. The arguments

favoring significance were as follows:

    Ecological setting. The Southern Residents appear to occupy an

ecological setting distinct from the other North Pacific resident

populations. In particular, the Southern Residents are the only North

Pacific resident population to spend a substantial amount of time in

the California Current ecosystem, an ocean habitat that differs

considerably from the Alaskan Gyre occupied by the Alaska Residents and

Northern Residents. There is some evidence of differences in prey

utilization, with Southern and Northern Residents favoring chinook

salmon and certain Alaska Residents also eating groundfish such as

halibut and turbot.

    Range. The BRT discussed data related to the Southern Residents'

year round and summer core ranges and concluded that loss of the

Southern Residents would result in a significant gap in the range of

the North Pacific resident taxon. In particular, the Southern Residents

are the only North Pacific resident population to be sighted in the

coastal areas off of California, Oregon and Washington and are the only

population to regularly inhabit Puget Sound. Based on experience from

other cetaceans, the BRT found little reason to believe that these

areas would be repopulated by other North Pacific resident populations

in the foreseeable future should the Southern Resident population

become extinct.

    This conclusion differs from that of the 2002 BRT for several

reasons. New sightings of the Southern Residents in recent years have

provided additional information on the amount of overlap in range

between Southern Residents and other North Pacific resident

populations. Also, the 2002 BRT considered transient, offshore, and

other resident killer whales and their respective range overlap with

Southern Resident killer whales when determining if the loss of

Southern Resident would represent a significant gap in the range of the

global taxon. The 2004 BRT considered only the overlap with other North

Pacific residents.

    Genetic differentiation. The Southern Residents differ markedly

from other North Pacific resident populations at both nuclear and

mitochondrial genes. The Southern Residents also differ from other

North Pacific resident populations in the frequency of certain saddle

patch variants, a trait believed to have a genetic basis.

    Behavioral and cultural diversity. The BRT noted that culture

(knowledge passed through learning from one generation to the next) is

likely to play an important role in the viability of killer whale

populations. For example, the Southern Residents may have unique

knowledge of the timing and location of salmon runs in the southern

part of the North Pacific Residents' range. The BRT also noted that

there was some evidence that cultural traditions, such as greeting

behavior, beach rubbing, and utilization of prey from longlines,

differed among the resident populations.

Conclusions

    The BRT concluded: (1) although multiple species of O. orca may

exist and be confirmed in the future, there is currently insufficient

evidence to describe any new species; and (2) provisionally the North

Pacific Residents and transients should be considered to belong to one

species; however, (3) there is sufficient information to indicate that

there is likely a North Pacific Resident subspecies of O. orca. Given

the District Court's direction, the BRT considered this unnamed

subspecies as the reference taxon for making a DPS determination and

concluded that Southern Resident killer whales are discrete from other

populations within the North Pacific Resident taxon and are significant

to the North Pacific Resident taxon. The BRT also considered the

hypothesis that the North Pacific Residents and offshores belong to the

same subspecies, and concluded that Southern Residents would also meet

the DPS criteria under this alternative taxonomic scenario.

    The 2002 BRT had also explored the plausibility of various taxa and

DPS scenarios, including Southern Residents as a DPS of a North Pacific

Resident taxon. The 2002 BRT was almost evenly split on the question of

whether the Southern Residents would be a DPS of a putative North

Pacific Resident taxon and there was only minor support to the idea

that Southern Residents would be a DPS of a taxon consisting of North

Pacific residents and offshores. In contrast, the 2004 BRT was more

confident that the Southern Residents should be considered a DPS under

either scenario. The 2004 BRT discussed this increase in support for

the Southern Residents as a DPS and attributed it primarily to the

amount of new information that has been collected since 2002. For

example, knowledge about worldwide patterns of genetic variation in

killer whales has increased dramatically and has demonstrated that

sharing of a similar mitochondrial DNA haplotype does not necessarily

indicate a close evolutionary relationship between two populations.

This is important because the offshores and Southern Residents are

characterized by very similar mtDNA haplotypes, a factor that

influenced the conclusions of the 2002 BRT. In addition, the 2004 BRT

was aware of recently collected information about the social structure,

morphology, behavior and diet of offshore killer whales that was

unavailable at the time of the 2002 status review. This information

tends to suggest that the offshores are more distinct from resident

killer whales than was appreciated by the 2002 BRT. Finally, knowledge

about ecological and behavioral diversity within killer whales has

increased as a result of ongoing studies in British Columbia, Alaska,

and the Russian Far East. The BRT generally concluded that this new

information tended to suggest

[[Page 76678]]

substantial ecological differentiation between the Southern Residents

and other populations.

Risk Assessment

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part

424) set forth procedures for listing species. We must determine,

through the regulatory process, if a species is endangered or

threatened based upon any one or a combination of the following

factors: (1) the present or threatened destruction, modification, or

curtailment of its habitat or range; (2) overutilization for

commercial, recreational, scientific, or educational purposes; (3)

disease or predation; (4) inadequacy of existing regulatory mechanisms;

or (5) other natural or human-made factors affecting its continued

existence. The 2004 BRT identified the factors that currently pose a

risk for Southern Residents and discussed whether they might continue

in the future. Concern remains about whether reduced quantity or

quality of prey are affecting the Southern Resident population. In

addition, levels of organochlorine contaminants are not declining

appreciably and those of many ``newly emerging'' contaminants (e.g.,

brominated flame retardants) are increasing, so Southern Residents are

likely at risk for serious chronic effects similar to those

demonstrated for other marine mammal species (e.g., immune and

reproductive system dysfunction). Other important risk factors that may

continue to impact Southern Residents are oil spills, as well as noise

and disturbance from vessel traffic.

    The BRT conducted a Population Viability Analysis (PVA) to

synthesize the potential biological consequences of a small population

size, a slowly increasing or a declining population trend, and

potential risk factors. The probability of the Southern Resident

population going extinct was estimated using demographic information

from the yearly census through 2003. Both the probability of extinction

(defined as < 1 male or 1 female) as well as the probability of ``quasi-

extinction,'' (defined as < 10 males or 10 females) were determined,

because the BRT believed that a population at the quasi-extinction

level would be ``doomed'' to extinction, even though literal extinction

might still take decades for long-lived organisms, such as killer

whales. Under the assumption that population growth rates in the future

will accurately be predicted by the full 29-year time series of

available data (the most optimistic scenario considered), the model

predicted the probability of Southern Residents becoming extinct was

less than 0.1 to 3 percent in 100 years and 2 to 42 percent in 300

years. If a quasi-extinction threshold was used instead of actual

extinction, the predicted probability of meeting the threshold ranged

from 1 to 15 percent in 100 years and 4 to 68 percent in 300 years. For

both scenarios, the higher percentages in each range were associated

with higher probability and magnitude of potential catastrophic

mortality events (e.g., oil spills, disease outbreaks), as well as with

a smaller carrying capacity (i.e., K = 100). When it was assumed that

the population survival for a subset (the last 10 years) of all data

available would best predict the future (the most pessimistic scenario

considered), the analysis predicted a probability of extinction of 6 to

19 percent in 100 years and 68 to 94 percent in 300 years. If a quasi-

extinction threshold was used in lieu of actual demographic extinction,

the predicted probability of meeting the threshold ranged from 39 to 67

percent in 100 years to 76 to 98 percent in 300 years.

    The PVA modeled combinations of a variety of parameters, some of

which are unknown (e.g., carrying capacity and probability of

catastrophic mortality), so multiple scenarios were analyzed in order

to address the uncertainty of how these parameters would affect the

probability that the population would go extinct. For the unknown

parameters, a range of inputs were used in the model and this resulted

in a range of results. The PVA produced some high probabilities for

extinction, which were associated with the highest levels of potential

catastrophic mortality, small carrying capacity, and when only a subset

of available data was used. Scenarios incorporating the most optimistic

parameters produced probabilities for extinction that were low, but not

insignificant. There is no indication that the optimistic scenario is

the most likely and therefore, the PVA extinction probabilities, even

under the most optimistic conditions, indicate that Southern Resident

killer whales are at risk.

    The population dynamics of the Southern Residents describe a

population that is at risk of extinction, due either to incremental

small-scale impacts over time (e.g., reduced fecundity or subadult

survivorship) or to a major catastrophe (e.g., disease outbreak or oil

spill). Additionally, the small size of this killer whale DPS makes it

potentially vulnerable to Allee effects (e.g., inbreeding depression)

that could cause a major decline. Furthermore, the small number of

breeding males, as well as possible reduced fecundity and subadult

survivorship in the L-pod, may limit the population's potential for

rapid growth in the near future. Although the Southern Resident DPS has

demonstrated the ability to recover from lower levels in the past and

has shown an increasing trend over the last several years, the factors

responsible for the decline are unclear, may still exist and may

continue to persist, which would potentially preclude a substantial

population increase.

Summary of Conclusions

    Although multiple species of killer whales may exist and may be

confirmed in the future, the 2004 BRT concluded that present data do

not adequately support designation of any new species. Accordingly,

North Pacific transients and residents should be considered to belong

to a single species. The BRT agreed that Southern Residents likely

belong to a subspecies that includes the Southern and Northern

Residents, as well as the resident killer whales of Southeast Alaska,

Prince William Sound, Kodiak Island, the Bering Sea and Russia (but not

the transients or offshores). Thus, the smallest taxon to which the

Southern Residents belong would be resident killer whales in the North

Pacific, an unnamed subspecies of O. orca. The BRT unanimously

concluded that the Southern Residents are discrete from other North

Pacific resident killer whale populations. The BRT also concluded that

the Southern Residents are significant with respect to the North

Pacific resident taxon and therefore should be considered a DPS.

Factors that might pose a future risk to the Southern Resident

population are: reduced quantity and quality of prey; persistent

pollutants that could cause immune or reproductive system dysfunction;

oil spills; and noise and disturbance from vessel traffic. The BRT

conducted a PVA and the most optimistic model (29-year data set)

predicted that the probability of Southern Residents becoming extinct

was less than 0.1 to 3 percent in 100 years and 2 to 42 percent in 300

years. Using the most pessimistic model (the last 10 years of data;

quasi-extinction threshold), the probability of meeting the threshold

ranged from 39 to 67 percent in 100 years to 76 to 98 percent in 300

years. For both scenarios, the higher percentages in each range were

associated with higher probability and magnitude of potential

catastrophic mortality events (e.g., oil spills), as well as with a

smaller carrying capacity (i.e., K = 100).

    Overall, the BRT was concerned about the viability of the Southern

Resident DPS and concluded that it is at risk of

[[Page 76679]]

extinction, because of either small-scale impacts over time (e.g.,

reduced fecundity or subadult survivorship) or a major catastrophe

(e.g., disease outbreak or oil spill). Additionally, the small size of

this killer whale DPS makes it potentially vulnerable to Allee effects

(e.g., inbreeding depression).

Proposed Determination

    The ESA defines an endangered species as any species in danger of

extinction throughout all or a significant portion of its range, and a

threatened species as any species likely to become an endangered

species in the foreseeable future throughout all or a portion of its

range (16 U.S.C. 1532 (6) and (20)). Section 4(b)(1) of the ESA

requires that the listing determination be based solely on the best

scientific and commercial data available, after conducting a review of

the status of the species and after taking into account those efforts,

if any, being made by any state or foreign nation to protect and

conserve the species.

    We have reviewed the petition, the reports of the BRT (NMFS, 2002,

2004), co-manager comments, Cetacean Taxonomy workshop papers and

reports, and other available published and unpublished information, and

we have consulted with species experts and other individuals familiar

with killer whales. On the basis of the best available scientific and

commercial information, the Southern Resident killer whale population

meets the discreteness and significance criteria for a DPS. The genetic

differences, spatial separation, unique behavior, and demography

indicate that the Southern Resident killer whale population segment is

discrete from other population segments. The gap in the range of the

North Pacific Resident killer whale taxon that would occur if the

Southern Resident killer whale population segment were to disappear is

an important factor indicating that the Southern Resident killer whale

population segment is significant with regard to the North Pacific

Resident killer whale taxon, though other factors such as unique

ecological setting, frequency of certain saddle patch variants, and

greeting behavior lend further support.

    This DPS is not presently in danger of extinction throughout all or

a significant portion of its range. The small population increase in

the past several years and population increases after previous

declines, the presence of reproductive age males in each pod, several

juvenile males reaching the age of sexual maturity in the next 2 to 6

years and several juvenile females reaching reproductive age in a few

years all indicate that the Southern Resident killer whale DPS is not

presently in danger of extinction. Based on our evaluation of the best

available scientific information, however, the Southern Resident killer

whale DPS is threatened (likely to become a endangered in the

foreseeable future throughout all or a significant portion of its

range). This threatened determination is based on concerns regarding

the population decline from 1996-2001, the limited number of

reproductive age males, the presence of females of reproductive age

that are not having calves, and that the factors for the decline may

continue to persist until more is known and actions are taken. The

small population size of the Southern Residents and their socially

cohesive nature makes them susceptible to catastrophic events such as

oil spills and disease outbreaks. While the PVA included some high

probabilities for extinction, particularly at the highest levels of

catastrophic mortality, the PVA was conducted under the assumption that

the Southern Residents are a closed population and also included Allee

effects (e.g., inbreeding depression) for the small population. This is

a conservative approach until the uncertainty regarding breeding

patterns is more thoroughly understood. Therefore, NMFS proposes to

list the Southern Resident killer whale DPS as threatened.

Conservation Measures

    Conservation measures that may apply to listed species include

conservation measures implemented by tribes, states, foreign nations,

local governments, and private organizations. Also, Federal, tribal,

state, and foreign nations' recovery actions (16 U.S.C. 1533(f)),

Federal consultation requirements (16 U.S.C. 1536), and prohibitions on

taking (16 U.S.C. 1538) constitute conservation measures. In addition,

recognition through Federal government or state listing promotes public

awareness and conservation actions by Federal, state, tribal

governments, foreign nations, private organizations, and individuals.

    The Southern Resident killer whale stock was designated as depleted

under the MMPA, and a Conservation Plan is under development. In

addition to the Conservation Planning process, NMFS has responded to

requests for immediate conservation actions by implementing and

supporting several programs. Working in partnerships with The Seattle

Aquarium and The Whale Museum, we have supported education, outreach

and stewardship activities to increase public awareness about the

conservation status and needs of killer whales. To promote responsible

viewing of killer whales, we have also provided support for additional

hours of on-water stewardship through the Soundwatch program and

enforcement presence through the Washington Department of Fish and

Wildlife (WDFW).

    On April 3, 2004, the Washington Fish and Wildlife Commission voted

to add Washington State's killer whale population to the list of the

State's endangered species. The State endangered designation is given

to native Washington species that are seriously threatened with

extinction throughout all or a significant portion of that range within

the state (WAC 232-12-297). The designation directs special management

attention and priority to recover the species in Washington. WDFW is

working with us on conservation strategies for killer whales.

    Southern Resident killer whales are listed as endangered and

Northern Residents are listed as threatened under Canada's Species at

Risk Act (SARA). Under SARA ``endangered species'' means a wildlife

species that is facing imminent extirpation or extinction and

``threatened species'' means a wildlife species that is likely to

become an endangered species if nothing is done to reverse the factors

leading to its extirpation or extinction. Canada's Department of

Fisheries and Oceans has convened a Recovery Team, which includes WDFW

and NMFS staff members, and has begun developing a Recovery Plan for

Southern and Northern Resident Whales under the SARA.

    In addition to conservation and recovery planning efforts, our

Northwest Fisheries Science Center (NWFSC) is engaged in an active

research program for Southern Resident killer whales. Research that is

currently being conducted is designed to fill identified data gaps and

to improve our understanding of the risk factors that may be affecting

the decline or recovery of the Southern Resident killer whales. The new

information from research will be used to enhance our understanding of

the risk factors affecting recovery thereby improving our ability to

develop effective management measures. The Conservation Plan under the

MMPA will contain both management measures based on the known current

condition and research objectives from the NWFSC Long-Range Research

Plan.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or

indirectly affect endangered species. These

[[Page 76680]]

prohibitions apply to all individuals, organizations and agencies

subject to U.S. jurisdiction. Section 4(d) of the ESA directs the

Secretary of Commerce (Secretary) to implement regulations ``to provide

for the conservation of [threatened] species,'' that may include

extending any or all of the prohibitions of section 9 to threatened

species. Section 9(a)(1)(g) also prohibits violations of protective

regulations for threatened species implemented under section 4(d). We

will evaluate protective regulations pursuant to section 4(d) for

Southern Resident killer whales and if necessary propose such

regulations in a forthcoming rule that will be published in the Federal

Register.

    Sections 7(a)(2) and (4) of the ESA require Federal agencies to

consult with us to ensure that activities they authorize, fund, or

conduct are not likely to jeopardize the continued existence of a

listed species or a species proposed for listing, or to adversely

modify critical habitat or proposed critical habitat. If a Federal

action may affect a listed species or its critical habitat, the

responsible Federal agency must enter into consultation with us.

    Examples of Federal actions that may affect Southern Resident

killer whales include coastal development, oil and gas development,

seismic exploration, point and non-point source discharge of persistent

contaminants, contaminated waste disposal, water quality standards,

emerging chemical contaminant practices, vessel operations and noise

level standards and fishery management practices.

    Sections 10(a)(1)(A) and (B) of the ESA provide us with authority

to grant exceptions to the ESA's Section 9 ``take'' prohibitions.

Section 10(a)(1)(A) scientific research and enhancement permits may be

issued to entities (Federal and non-Federal) for scientific purposes or

to enhance the propagation or survival of a listed species. The type of

activities potentially requiring a section 10(a)(1)(A) research/

enhancement permit include scientific research that targets killer

whales.

    Section 10(a)(1)(B) incidental take permits may be issued to non-

Federal entities performing activities that may incidentally take

listed species, as long as the taking is incidental to, and not the

purpose of, the carrying out of an otherwise lawful activity. The types

of activities potentially requiring a section 10(a)(1)(B) incidental

take permit include scientific research, not targeting killer whales,

that incidentally takes Southern Resident killer whales.

Our Policies on Endangered and Threatened Wildlife

    On July 1, 1994, we and FWS published a series of policies

regarding listings under the ESA, including a policy for peer review of

scientific data (59 FR 34270) and a policy to identify, to the maximum

extent possible, those activities that would or would not constitute a

violation of section 9 of the ESA (59 FR 34272).

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are

based on the best scientific and commercial data available. Prior to a

final listing, we will solicit the expert opinions of three qualified

specialists, concurrent with the public comment period. Independent

specialists will be selected from the academic and scientific

community, Federal and state agencies, and the private sector.

Identification of Those Activities That Would Constitute a Violation of

Section 9 of the ESA

    The intent of this policy is to increase public awareness of the

effect of our ESA listing on proposed and ongoing activities within the

species' range. We will identify, to the extent known at the time of

the final rule, specific activities that will be considered likely to

result in violation of section 9, as well as activities that will not

be considered likely to result in violation. Activities that we believe

could result in violation of section 9 prohibitions against ``take'' of

the Southern Resident killer whale DPS include, but are not limited to,

the following:

    1. Coastal development that adversely affects Southern Resident

killer whales (e.g., dredging, land clearing and grading, waste

treatment).

    2. Discharging or dumping toxic chemicals or other pollutants into

areas used by Southern Resident killer whales.

    3. Operating vessels in a manner that disrupts foraging, resting or

care for young or results in noise levels that disrupt foraging,

communication, resting or care for young.

    4. Land/water use or fishing practices that result in reduced

availability of prey species during periods when Southern Resident

killer whales are present.

    We believe, based on the best available information, the following

actions will not result in a violation of Section 9:

    1. Federally funded or approved projects for which ESA section 7

consultation has been completed, and that are conducted in accordance

with any terms and conditions we provide in an incidental take

statement accompanying a biological opinion.

    2. Takes of killer whales that we authorize pursuant to section 10

of the ESA.

    These lists are not exhaustive. They are intended to provide some

examples of the types of activities that we might or might not consider

as constituting a take of Southern Resident killer whales under the ESA

and its regulations.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C.

1532(3)) as: (1) the specific areas within the geographical area

occupied by the species, at the time it is listed in accordance with

the ESA, in which are found those physical or biological features (a)

essential to the conservation of the species and (b) which may require

special management considerations or protection; and (2) specific areas

outside the geographical area occupied by the species at the time it is

listed upon a determination that such areas are essential for the

conservation of the species. ``Conservation'' means the use of all

methods and procedures needed to bring the species to the point at

which listing under the ESA is no longer necessary.

    Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires

that, to the extent prudent and determinable, critical habitat be

designated concurrently with the listing of a species. Designations of

critical habitat must be based on the best scientific data available

and must take into consideration the economic, national security, and

other relevant impacts of specifying any particular area as critical

habitat. Once critical habitat is designated, section 7 of the ESA

requires Federal agencies to ensure that they do not fund, authorize or

carry out any actions that are likely to destroy or adversely modify

that habitat. This requirement is in addition to the section 7

requirement that Federal agencies ensure that their actions do not

jeopardize the continued existence of listed species.

    We are currently in the information-gathering phase, compiling

information to prepare a critical habitat proposal for Southern

Resident killer whales. In previous Federal Register notices (69 FR

9809, March 2, 2004; and 66 FR 42499, August 13, 2001) we requested

specific information on critical habitat and are again seeking public

input and information to assist in gathering and analyzing the best

available scientific data to support critical habitat

[[Page 76681]]

designations. We will continue to meet with comanagers and other

stakeholders to review this information and the overall designation

process. We will then initiate rulemaking with the publication of a

proposed designation of critical habitat, opening a period for public

comment and the opportunity for public hearings.

    Joint NMFS/FWS regulations for listing endangered and threatened

species and designating critical habitat at section 50 CFR 424.12(b)

state that the agency ``shall consider those physical and biological

features that are essential to the conservation of a given species and

that may require special management considerations or protection

(hereafter also referred to as 'Essential Features').'' Pursuant to the

regulations, such requirements include, but are not limited to the

following: (1) space for individual and population growth, and for

normal behavior; (2) food, water, air, light, minerals, or other

nutritional or physiological requirements; (3) cover or shelter; (4)

sites for breeding, reproduction, rearing of offspring, germination, or

seed dispersal; and generally; (5) habitats that are protected from

disturbance or are representative of the historic geographical and

ecological distributions of a species. These regulations go on to

emphasize that the agency shall focus on essential features within the

specific areas considered for designation. These features ``may

include, but are not limited to, the following: spawning sites, feeding

sites, seasonal wetland or dryland, water quality or quantity,

geological formation, vegetation type, tide, and specific soil types.''

    Southern Resident killer whales reside for part of the year in the

inland waterways of the Strait of Georgia, Strait of Juan de Fuca, and

Puget Sound, particularly during the spring, summer and fall. Southern

Residents visit coastal sites off Washington, Oregon and Vancouver

Island and are known to travel as far south as central California and

as far north as the Queen Charlotte Islands, British Columbia.

Information on the range of Southern Residents along the outer Pacific

Coast is limited, with only 27 confirmed coastal sightings over the

last 20 years (NMFS, 2004). Killer whale habitat utilization is dynamic

and does not appear to include use of specific breeding, nursing or

resting areas. Foraging areas are dependent on variable temporal and

spatial patterns of migratory prey species. These characteristics

present challenges in identifying critical habitat for Southern

Resident killer whales. The physical or biological features of their

habitat include:

    (1) Water quality to support growth and development;

    (2) Prey species of sufficient quantity, quality and availability

to support growth and development;

    (3) Sound levels that do not exceed thresholds that inhibit

communication or foraging activities or result in temporary or

permanent hearing loss; and

    (4) Safe passage conditions to support migration and foraging.

    We are seeking information and comment on the appropriateness of

considering these features for critical habitat designation.

    The geographical area occupied by Southern Resident Killer Whales,

where these features may be found, includes the Strait of Georgia,

Strait of Juan de Fuca, Puget Sound, coastal Washington, Oregon and

California. We are seeking comment and information on the specific

areas within this geographical area where these features may be found.

    Section 4(b)(2) of the ESA requires the Secretary to consider the

``economic impact, impact on national security, and any other relevant

impact,'' of designating a particular area as critical habitat. For

this, section 4(b)(2) authorizes the Secretary to exclude from a

critical habitat designation those particular areas where the Secretary

finds that the benefits of exclusion outweigh the benefits of

designation, unless excluding that area will result in extinction of

the species. As such, we seek information regarding the conservation

benefits of designating areas in the Strait of Georgia, Strait of Juan

de Fuca, Puget Sound, coastal Washington, Oregon and California as

critical habitat. We also seek information on the economic benefit of

excluding areas from the critical habitat designation, and the economic

benefits of including an area as part of the critical habitat

designation. In keeping with the guidance provided by the Office of

Management and Budget (2000, 2003), we seek information that would

allow it to monetize these effects to the extent possible, as well as

information on qualitative impacts to economic values. We are also

seeking information on impacts to national security and any other

relevant impacts of designating critical habitat in these areas.

    In accordance with the Secretarial Order on American Indian Tribal

Rights, Federal-Tribal Trust Responsibilities, and the Endangered

Species Act, we will coordinate with Federally recognized American

Indian Tribes on a Government-to-Government basis to determine how to

make critical habitat assessments in areas that may impact Tribal trust

resources. In accordance with our regulations at 50 CFR 424.13, we will

consult as appropriate with affected states, interested persons and

organizations, other affected Federal agencies, and, in cooperation

with the Secretary of State, with the country or countries in which the

species concerned are normally found or whose citizens harvest such

species from the high seas. Data reviewed may include, but are not

limited to, scientific or commercial publications, administrative

reports, maps or other graphic materials, information received from

experts, and comments from interested parties.

Public Comments

    We exercised our best professional judgment in developing this

proposal to list Southern Resident killer whales. To ensure that the

final action resulting from this proposal will be as accurate and

effective as possible, we are soliciting comments and suggestions from

the public, other governmental agencies, the Government of Canada, the

scientific community, industry, and any other interested parties.

Comments are encouraged on this proposal as well as on the Status

Review (See DATES and ADDRESSES) . Specifically, we are interested in

information regarding: (1) the factors we considered in determining

whether the Southern Resident killer whale population is significant to

the North Pacific resident killer whale taxon; (2) biological or other

relevant data concerning any threats to Southern Resident killer

whales; (3) the range, distribution, and abundance of Southern Resident

killer whales; (4) current or planned activities within the range of

Southern Resident killer whales and their possible impact on Southern

Resident killer whales; (5) efforts being made to protect Southern

Resident killer whales; and (6) areas that may qualify as critical

habitat.

    We will review all public comments and any additional information

regarding the status of Southern Resident killer whales and will

complete a final determination within 1 year of publication of this

proposed rule, as required under the ESA. Final promulgation of the

regulation(s) on this species will consider the comments and any

additional information we receive, and such communications may lead to

a final regulation that differs from this proposal.

[[Page 76682]]

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the

information that may be considered when assessing species for listing.

Based on this limitation of criteria for a listing decision and the

opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d825 (6th Cir.

1981), We have concluded that ESA listing actions are not subject to

the environmental assessment requirements of the National Environmental

Policy Act (NEPA). (See NOAA Administrative Order 216-6.)

Executive Order 12866, Regulatory Flexibility Act and Paperwork

Reduction Act

    As noted in the Conference Report on the 1982 amendments to the

ESA, economic impacts cannot be considered when assessing the status of

a species. Therefore, the economic analysis requirements of the

Regulatory Flexibility Act are not applicable to the listing process.

In addition, this rule is exempt from review under Executive Order

12866. This proposed rule does not contain a collection-of-information

requirement for the purposes of the Paperwork Reduction Act.

Federalism

    In keeping with the intent of the Administration and Congress to

provide continuing and meaningful dialogue on issues of mutual State

and Federal interest, this proposed rule will be given to the relevant

state agencies in each state in which the species is believed to occur,

who will be invited to comment. We have conferred with the State of

Washington in the course of assessing the status of Southern Resident

killer whales, and considered, among other things, state and local

conservation measures. Washington has listed killer whales under the

Washington Administrative Code 232-12-014 and is coordinating with us

to develop a State recovery plan. As the process continues, we intend

to continue engaging in informal and formal contacts with Washington,

and other affected local or regional entities, giving careful

consideration to all written and oral comments received. We also intend

to consult with appropriate elected officials in the establishment of a

final rule.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, exports, imports,

transportation.

    Dated: December 15, 2004.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine

Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is

proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as

follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In Sec.  223.102, paragraph (c), add the following to the List

of Threatened Marine and Anadromous Species, in alphabetical order

under MARINE MAMMALS:

Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

    (c) Marine Mammals.

* * * * *

    Killer whale (Orcinus orca), Southern Resident population (DPS),

which consists of whales from J, K and L pods.

* * * * *

[FR Doc. 04-27929 Filed 12-21-04; 8:45 am]

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