Federal Register, Volume 78 Issue 150 (Monday, August 5, 2013)

[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Notices]
[Pages 47277-47282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18824]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 121025586-3654-01]
RIN 0648-XC326

Listing Endangered or Threatened Species: 12-Month Finding on a
Petition To Delist the Southern Resident Killer Whale

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

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), are issuing
a 12-month finding on a petition to delist the Southern Resident killer
whale (Orcinus orca) Distinct Population Segment (DPS) under the
Endangered Species Act (ESA). We listed the Southern Resident killer
whale DPS as endangered under the ESA in 2005. We accepted the petition
to delist the Southern Resident killer whale DPS on November 27, 2012,
initiating a public comment period and a status review. Based on our
review of the petition, public comments, and the best available
scientific information, we find that delisting the Southern Resident
killer whale DPS is not warranted.

DATES: The finding announced in this document was made on August 5,
2013.

ADDRESSES: This finding and supporting information are available on our
Web page at: http://www.nwr.noaa.gov/protected_species/marine_mammals/killer_whale/delist_petition.html.

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

SUPPLEMENTARY INFORMATION:

ESA Statutory Provisions and Policy Considerations

[[Page 47278]]

are available upon request (see ADDRESSES, above).
In accordance with section 4(b)(3)(A) of the ESA, to the maximum
extent practicable within 90 days of receipt of a petition to list or
delist a species as threatened or endangered, the Secretary of Commerce
is required to make a finding on whether that petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted, and to promptly publish such
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)) and 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. On November 27, 2012 (77 FR 70733), we made a
finding that there was sufficient information indicating that the
petitioned action may be warranted and requested comments to inform a
status review.
After accepting a petition and initiating a status review, within
12 months of receipt of the petition we conclude the review with a
determination that the petitioned action is not warranted, or a
proposed determination that the action is warranted. Under specific
facts, we may also issue a determination that the action is warranted
but precluded. In this notice, we make a finding that the petitioned
action to delist the Southern Resident killer whale DPS is not
warranted.
Under the ESA, the term ``species'' means a species, a subspecies,
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-
USFWS policy clarifies the Services' interpretation of the phrase
``Distinct Population Segment,'' or DPS (61 FR 4722; February 7, 1996).
The DPS Policy requires the consideration of two elements when
evaluating whether a vertebrate population segment qualifies as a DPS
under the ESA: (1) Discreteness of the population segment in relation
to the remainder of the species/taxon, and, if discrete; (2) the
significance of the population segment to the species/taxon.
A species is ``endangered'' if it is in danger of extinction
throughout all or a significant portion of its range, and
``threatened'' if it is likely to become endangered within the
foreseeable future throughout all or a significant portion of its range
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and
(20)). Thus, we interpret an ``endangered species'' to be one that is
presently in danger of extinction. A ``threatened species,'' on the
other hand, is not presently in danger of extinction, but is likely to
become so in the foreseeable future (that is, at a later time). In
other words, the primary statutory difference between a threatened and
endangered species is the timing of when a species may be in danger of
extinction, either presently (endangered) or in the foreseeable future
(threatened). Pursuant to the ESA and our implementing regulations, we
determine whether a species is threatened or endangered based on any
one or a combination of the following section 4(a)(1) factors: (1) The
present or threatened destruction, modification, or curtailment of
habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4)
inadequacy of existing regulatory mechanisms; and (5) any other natural
or manmade factors affecting the species' existence (16 U.S.C.
1533(a)(1), 50 CFR 424.11(c)).
Under section 4(a)(1) of the ESA and the implementing regulations
at 50 CFR 424.11(d), a species shall be removed from the list if the
Secretary of Commerce determines, based on the best scientific and
commercial data available after conducting a review of the species'
status, that the species is no longer threatened or endangered because
of one or a combination of the section 4(a)(1) factors. A species may
be delisted only if such data substantiate that it is neither
endangered nor threatened for one or more of the following reasons:
(1) Extinction. Unless all individuals of the listed species had
been previously identified and located, and were later found to be
extirpated from their previous range, a sufficient period of time must
be allowed before delisting to indicate clearly that the species is
extinct.
(2) Recovery. The principal goal of the Services is to return
listed species to a point at which protection under the ESA is no
longer required. A species may be delisted on the basis of recovery
only if the best scientific and commercial data available indicate that
it is no longer endangered or threatened.
(3) Original data for classification in error. Subsequent
investigations may show that the best scientific or commercial data
available when the species was listed, or the interpretation of such
data, were in error (50 CFR 424.11(d)).

Background

Three distinct forms or ecotypes of killer whales, termed
residents, transients, and offshores, are recognized in the
northeastern Pacific Ocean. Resident killer whales in U.S. waters are
distributed from Alaska to California, with distinct populations:
Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al.,
2002; 2004). Resident killer whales are fish eaters and live in stable
matrilineal pods. The West Coast transient killer whales have a
different social structure, are found in smaller groups, and eat marine
mammals. Offshore killer whales are found in large groups and their
diet is presumed to consist primarily of fish, including sharks. While
the ranges of the different ecotypes of whales overlap in the
northeastern Pacific Ocean, available genetic data indicate that there
is a high degree of reproductive isolation among residents, transients,
and offshores (Krahn et al., 2004; NMFS, 2013).
The Southern Resident killer whale population consists of three
pods, identified as J, K, and L pods, that reside for part of the year
in the inland waterways of Washington State and British Columbia
(Strait of Georgia, Strait of Juan de Fuca, and Puget Sound),
principally during the late spring, summer, and fall (NMFS, 2008). Pods
visit coastal sites off Washington and Vancouver Island, and travel as
far south as central California and as far north as Southeast Alaska
(Ford et al., 2000; NMFS, 2008; Department of Fisheries and Oceans,
unpublished data).
In 2001 we received a petition to list the Southern Resident killer
whale population as threatened or endangered under the ESA (CBD, 2001)
and we formed a Biological Review Team (BRT) to assist with a status
review (NMFS, 2002). After conducting the status review, we determined
that listing the Southern Resident killer whale population as a
threatened or endangered species was not warranted because the science
at that time did not support identifying the Southern Resident killer
whale population as a distinct population segment as defined by the ESA
(67 FR 44133; July 1, 2002). Because of the uncertainties regarding
killer whale taxonomy (i.e., whether killer whales globally should be
considered as one species or as multiple species and/or subspecies), we
announced we would reconsider the taxonomy of killer whales within 4
years. Following the determination, the Center for Biological
Diversity, and other plaintiffs, challenged our ``not warranted''
finding under the ESA in U.S. District Court. The U.S. District Court
for the Western District of Washington issued an order on December 17,
2003, which set aside our ``not warranted'' finding and remanded the
matter to us for redetermination of

[[Page 47279]]

whether the Southern Resident killer whale population should be listed
under the ESA (Center for Biological Diversity v. Lohn, 296 F. Supp.
2d. 1223 (W.D. Wash. 2003)). The court found that where there is
``compelling evidence that the global Orcinus orca taxon is
inaccurate,'' the agency may not rely on ``a lack of consensus in the
field of taxonomy regarding the precise, formal taxonomic redefinition
of killer whales.'' As a result of the court's order, we co-sponsored a
Cetacean Taxonomy workshop in 2004, which included a special session on
killer whales, and reconvened a BRT to prepare an updated status review
document for Southern Resident killer whales (NMFS, 2004).
The BRT agreed that the Southern Resident killer whale population
likely belongs to an unnamed subspecies of resident killer whales in
the North Pacific, which includes the Southern and Northern Residents,
as well as the resident killer whales of Southeast Alaska, Prince
William Sound, Kodiak Island, the Bering Sea and Russia (but not
transients or offshores). The BRT concluded that the Southern Resident
killer whale population is discrete and significant with respect to the
North Pacific Resident taxon and therefore should be considered a DPS.
In addition, the BRT conducted a population viability analysis which
modeled the probability of species extinction under a range of
assumptions. Based on the findings of the status review and an
evaluation of the factors affecting the DPS, we published a proposed
rule to list the Southern Resident killer whale DPS as threatened on
December 22, 2004 (69 FR 76673). After considering public comments on
the proposed rule and other available information, we reconsidered the
status of the Southern Resident killer whale DPS and issued a final
rule to list the Southern Resident killer whale DPS as endangered on
November 18, 2005 (70 FR 69903).
Following the listing, we designated critical habitat, completed a
recovery plan, and conducted a 5-year review for the Southern Resident
killer whale DPS. We issued a final rule designating critical habitat
for the Southern Resident killer whale DPS November 29, 2006 (71 FR
69055). The designation includes three specific areas: (1) the Summer
Core Area in Haro Strait and waters around the San Juan Islands; (2)
Puget Sound; and (3) the Strait of Juan de Fuca, which comprise
approximately 2,560 square miles (6,630 square km) of Puget Sound. The
designation excludes areas with water less than 20 feet (6.1 m) deep
relative to extreme high water. After engaging stakeholders and
providing multiple drafts for public comment, we announced the Final
Recovery Plan for the Southern Resident killer whale DPS on January 24,
2008 (73 FR 4176). We have continued working with partners to implement
actions in the recovery plan. In March 2011, we completed a 5-year
review of the ESA status of the Southern Resident killer whale DPS,
concluding that no change was needed in its listing status and that the
Southern Resident killer whale DPS would remain listed as endangered
(NMFS, 2011). The 5-year review also noted that there was no relevant
new information for this species regarding the application of the DPS
policy.

Petition Finding

On August 2, 2012, we received a petition submitted by the Pacific
Legal Foundation on behalf of the Center for Environmental Science
Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to
delist the endangered Southern Resident killer whale DPS under the ESA.
The petitioners contend that there is no scientific basis for the
designation of the unnamed North Pacific Resident subspecies of which
the Southern Resident killer whale population is a purported DPS. The
petitioners also contend that the killer whale DPS does not constitute
a listable unit under the ESA because NMFS is without authority to list
a DPS of a subspecies. They conclude that the listing of the Southern
Resident killer whale DPS was in error and is illegal and therefore
NMFS should delist the DPS.
The petition focused entirely on the basis for identifying the
North Pacific Resident killer whales as a subspecies and the reference
unit for the Southern Resident DPS and did not include any information
regarding the five section 4(a)(1) factors or status of the population.
The petitioners provided both a scientific argument regarding the
biological basis for the subspecies and DPS determination and also a
legal argument regarding the subspecies and DPS determination under the
ESA. There was no information presented regarding past or present
numbers and distribution of the species, the threats faced by the
species, or the status of the species over all or a significant portion
of its range.
The petition presented new information regarding genetic samples
and data analysis pertinent to the status of the North Pacific Resident
population as a subspecies and the subsequent Southern Resident killer
whale DPS determination. The source of the new information was
primarily a scientific peer reviewed journal article published
subsequent to the listing (Pilot et al., 2010), which includes
information regarding breeding between different ecotypes of killer
whales (i.e., offshores and transients). The petitioners also cited new
articles regarding killer whale vocalizations, and reviewed different
types of information considered by the BRT and presented in the status
review report (NMFS, 2004).
On November 27, 2012, we found that the information contained in
the petition, viewed in the context of information readily available in
our files, presented substantial scientific information indicating the
petitioned action may be warranted. We noted that information and
results, similar to those presented in Pilot et al. (2010), were
available at the time of the Status Review (NMFS, 2004), Cetacean
Taxonomy Workshop (Reeves et al., 2004), DPS determination, and listing
decision. In addition to the information presented in the petition, we
also acknowledged data from additional new genetic samples and peer
reviewed scientific journal articles (e.g., Morin et al., 2010; Ford et
al., 2011) regarding taxonomy and breeding behavior of killer whales
that address the discreteness question and the DPS determination.
Our 90-day finding accepting the petition solicited information
from the public and initiated a status review of the Southern Resident
killer whale DPS to gather any additional information to inform our
review of the petitioned action and our application of the DPS policy.
During the public comment period for receiving information, which
closed on January 28, 2013, we received over 2,750 comments. Despite
our request for specific scientific and commercial information, the
vast majority of commenters simply noted their opposition to the
petition to delist the Southern Resident killer whale DPS, while a
handful of comments supported the petition. Several commenters
disagreed with the 90-day finding and suggested that the petition
should be rejected and not considered any further. We did receive
several substantive comments regarding both the biological and legal
aspects of the DPS determination as raised in the petition.
We provided a summary of the substantive comments to the NMFS
Northwest Fishery Science Center (Center) with a request to evaluate
whether any of the new information would suggest alternative
conclusions than those of the BRT regarding the DPS determination in
the 2004 status review (Krahn et al., 2004). Specifically, we

[[Page 47280]]

requested that the Center consider if there is new best available
information that would lead to different conclusions from those in
Krahn et al. (2004) regarding the North Pacific Resident killer whale
subspecies or the discreteness or significance of the Southern Resident
killer whale population. The Center provided a status review update
(NMFS, 2013) that included a review of (1) taxonomic issues addressed
by the 2004 BRT (Krahn et al., 2004); (2) biological points raised in
the petition; (3) information provided by the public; (4) new
information on morphology, feeding ecology, diet, and genetics; (5)
conclusions about the determinations of the reference taxonomic group,
or taxon, for evaluating discreteness and significance; and (6)
conclusions about the DPS determination made in 2004. The status review
update and determinations about the taxon and DPS (NMFS, 2013) informs
our 12-month finding about the petitioned action to delist the Southern
Resident killer whale DPS.

Determination of Taxon and DPS

Based on the best information available, we previously concluded,
with advice from the 2004 BRT, that the Southern Resident killer whale
population (J, K, and L pods) met the two criteria of the DPS policy
and constituted a DPS of the North Pacific Resident subspecies. The
following discussion describes our evaluation of the North Pacific
Resident subspecies and DPS status of the Southern Resident population
during the 2005 rulemaking, and our evaluation of its DPS status based
on the new information available since that rulemaking and best
available science review and advice from the Center (NMFS, 2013). The
evaluation considers: (1) The reference taxon for consideration under
the DPS policy; (2) the discreteness of the Southern Resident
population from other populations within that taxon; and (3) the
significance of the Southern Resident population to that taxon.

Reference Taxon

During the 2005 rulemaking we concluded that the proper reference
taxon for consideration under the DPS policy was an unnamed subspecies
of North Pacific Resident killer whales, distinct from North Pacific
transient killer whales, North Pacific offshore killer whales, and
other resident killer whales world-wide. We reached this conclusion
based on several lines of evidence, including differences in
morphology, behavior, diet and feeding ecology, acoustical dialects and
practices, and both mtDNA and nuclear DNA variation (Krahn et al.,
2004). The lines of evidence supporting differentiation between the
ecotypes of North Pacific whales are relevant to and inform the basis
for identifying the North Pacific Resident killer whales taxonomically,
as a subspecies (NMFS, 2013).
After reviewing information in the petition, the public comments,
and the scientific literature published in the 9 years since the 2004
status review, we find no new information that leads to a different
conclusion from that reached in the 2005 rulemaking, and the weight of
evidence continues to support our conclusion that the North Pacific
Resident killer whales represent a taxonomic subspecies. To the
contrary, new information is consistent with and further supports the
2005 finding. All of the new genetic data and analyses published since
2004, including the Pilot et al. (2010) paper discussed extensively in
the petition, show a high degree of contemporary reproductive isolation
among the North Pacific killer whale ecotypes (resident, transients,
and offshores). No genetic analysis published since the 2004 status
review has indicated a higher level of interbreeding among these
ecotypes than was indicated by the analysis considered by the 2004 BRT.
In addition to new genetic data and analyses, the studies on
feeding ecology and diet published since 2004 are generally consistent
with or strengthen the 2004 BRT's conclusions that the ecotypes differ
in diet and feeding ecology. The one new study that addresses
morphological differences between the ecotypes (Zerbini et al., 2007)
supports the 2004 BRT's conclusion that the ecotypes can be
morphologically differentiated.
No new information on acoustics or behavior contradicts the
conclusions of the 2004 BRT. Recent observations (Center unpublished
data, 2013) indicate that North Pacific offshore killer whales consume
at least some Chinook salmon (indicating a similarity with North
Pacific Residents), but observations, stable isotopes, and tooth wear
data indicate substantial dietary differences (Dahlheim et al., 2008;
Ford et al., 2011).
Finally, in 2012 the Society of Marine Mammalogy formally
recognized North Pacific Residents as an unnamed subspecies (Committee
on Taxonomy, 2012). Recognition by this organization alone does not
amount to a ``precise, formal taxonomic redefinition of killer
whales,'' but it is an important addition to the weight of evidence
regarding the existence of the North Pacific resident killer whale
subspecies.
Based on the above evaluation, we conclude that the best available
scientific information indicates that the North Pacific Resident
subspecies is the appropriate reference taxon for considering whether
the Southern Resident killer whale population is discrete and
significant, despite the fact that the taxonomic community has not yet
formally named the subspecies. As noted in the 2004 BRT report,
``formal taxonomic changes are often slow to occur and lag behind
current knowledge.''

Discreteness of the Southern Resident Population From Other Populations
Within the Taxon

In our 2005 rulemaking we concluded that there was strong evidence
that the Southern Resident killer whale population is discrete from
other North Pacific Resident killer whale populations as defined by the
1996 DPS policy, citing significant genetic differentiation, separate
demographic trajectories, differences in core and summer range, and
behavioral differences from other resident populations (Krahn et al.,
2004).
The new information subsequent to 2004 is consistent with and
generally strengthens the conclusion that the Southern Resident killer
whale population is a discrete population within the North Pacific
Resident taxon. In particular, recent genetic studies all indicate that
the Southern Resident population is significantly differentiated from
other resident populations. A recent analytical comparison of
demographic rates found significant differences in both survival and
fecundity rates between the Southern Resident population and the
Northern Resident population, providing further evidence of demographic
discreteness (Ward et al., in press). New information on the winter
range of the Southern Resident population provides a considerably more
complete picture than was available in 2004, and continues to indicate
that K and L pods, in particular, have a winter and summer range
distinct from other resident populations, although the Southern
Resident population does overlap substantially with some of the
Northern Resident population. In short, as in 2004, all the available
information clearly indicates that the Southern Resident population is
discrete from other populations in the North Pacific resident
subspecies.

[[Page 47281]]

The Significance of the Southern Resident Population to the Taxon

Below we discuss each of the factors listed by the 2004 BRT in
support of its finding that the Southern Resident population is
significant to the North Pacific Resident killer whale subspecies.
Ecological setting and range--The 2004 BRT noted that the Southern
Resident population appeared to occupy a distinct ecological setting,
being the only North Pacific resident population to spend substantial
time in the California Current ecosystem and having a diet somewhat
different from other resident populations, particularly those in
Alaska. The BRT also cited the possibility that the Southern Resident
population historically utilized the large runs of salmon to the
Sacramento and Columbia River basins as a major source of prey. With
regard to range, the BRT noted that the Southern Resident population
was the only resident population observed spending time in Puget Sound
and off the coasts of Washington, Oregon, and California and that if it
were to become extirpated, this would result in a significant reduction
in the North Pacific Residents' range.
New information since 2004 generally continues to support most of
these conclusions, but also challenges some of them. In particular, new
information on the coastal distribution of the Southern and Northern
Resident populations confirms that the Southern Residents spend
substantial time in coastal areas of Washington, Oregon and California
and utilize salmon returns to these areas (Center, unpublished data).
However, there is also new information indicating that the Northern
Resident population may spend more time off the Washington coast than
was previously believed (Riera et al., 2011; Center, unpublished data).
In addition, diet information on the Alaskan resident populations
indicates that some of these populations also consume salmon, although
not the Chinook salmon that dominate the Southern and Northern Resident
diets (Saulitis et al., 2000). Updated diet data from the Southern and
Northern Resident populations confirm that these two populations have
very similar diets and consume many of the same salmon stocks (Ford et
al., 2010; Hanson et al., 2010). Overall, the Southern resident
population remains unique in occupying the southernmost part of the
North Pacific Resident's range, and is clearly occupying a different
ecological setting from populations in Alaska and farther west around
the Pacific Rim. The southern portion of the Southern Resident
population's range is quite distinct from that of the Northern Resident
population, even though the Southern and Northern residents clearly
share a similar ecological setting throughout much of their ranges.
Genetic differentiation--Genetic data available since 2004 confirm
or strengthen the conclusion that the Southern Resident population is
genetically unique from other resident populations. In particular,
there are no new data to change the 2004 BRT's conclusions that the
Southern Resident population differs markedly from other North Pacific
resident populations at both nuclear and mitochondrial genes.
Behavioral and cultural diversity--The 2004 BRT noted several
instances of known and apparent cultural differentiation among resident
killer whale populations, and hypothesized, based on studies in other
long-lived mammals, that such diversity could be important for the
survival of the North Pacific Resident taxon as a whole. Since 2004,
several studies have contributed further information to this topic. For
example, Ward et al. (2011, unpublished report) found significant
differences in survival among the three Southern Resident pods and
between the Southern and Northern Resident populations. These
differences are likely related to differences in diet and habitat use,
both of which appear to be culturally determined. Riesch et al. (2012)
and Foote (2012) reviewed cultural differences, particularly acoustic
behavior and prey preferences, among killer whale populations and
ecotypes, and concluded that such cultural differences may be leading
to reproductive isolation and subsequent ecological speciation. On the
whole, therefore, the available data appear consistent with the BRT's
conclusion that such cultural differences may be important factors in
the overall viability of the North Pacific Resident killer whale taxon.
In conclusion, the new information on genetics and behavioral and
cultural diversity available since 2004 is consistent with or
strengthens the 2004 BRT's conclusion that the Southern Resident killer
whale population meets the significance criterion of the DPS policy.
New information on ecological setting and range tends to weaken the
2004 BRT's conclusion somewhat, as it indicates greater overlap in
range and diet with other resident and offshore populations than was
previously believed. However, in total, the new information available
since 2004 regarding significance appears consistent with the 2004
BRT's conclusion.

12-Month Finding

As summarized above, the petitioners focused on biological and
legal aspects of identification of the North Pacific Resident killer
whale as a subspecies and the DPS determination for the Southern
Resident killer whale population and assert that the listing was in
error. The petitioners contend that the Southern Resident killer whale
DPS does not constitute a listable unit under the ESA because there is
no scientific basis for the identification of the unnamed North Pacific
Resident subspecies of which the Southern Resident killer whale
population is a DPS and because NMFS is without authority to list a DPS
of a subspecies. As described above, we reviewed the available
scientific information available since 2004, and we find that the
majority of new information supports or strengthens the DPS
determination. Further, in accordance with the DPS policy and after
reviewing the petition, information from the public, and the best
available information, we determine that the Southern Resident
population is discrete and significant with respect to the North
Pacific Resident subspecies, and therefore, constitutes a valid DPS.
This determination is consistent with the previous DPS determination
(Krahn et al., 2004) and, therefore, we conclude that the original data
for classification were not in error and delisting is not warranted. In
the absence of such error, we continue to recognize the Southern
Resident killer whale DPS as a listable unit.
Petitioners' legal argument regarding the authority to list the DPS
of a subspecies was raised in the context of the 1996 DPS policy and in
that policy we stated, ``[t]he Services maintain that the authority to
address DPS's extends to species in which subspecies are recognized,
since anything included in the taxon of lower rank is also included in
the higher ranking taxon.'' (61 FR 4722; February 7, 1996). The
position taken in the DPS policy is grounded in the statutory language
of the ESA. The ESA authorizes listing of species and defines
``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,'' 16 U.S.C. Section 1532
(16). Because the definition of species includes ``subspecies'' it is
reasonable to interpret the phrase ``DPS of any species'' to include
``DPS of any subspecies.'' In addition, several courts have upheld
the1996 DPS policy as a reasonable interpretation of the ESA entitled
to

[[Page 47282]]

deference (NW Ecosystem Alliance v. USFWS, 475 F3d 1136 (2007); Center
for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223 (W.D. Wash.
2003)); and one court expressly addressed the issue raised here and
upheld the Services' interpretation that a DPS of a subspecies is a
listable unit (Center for Biological Diversity v. USFWS, 274 Fed. Appx.
542, n.5 (9th Cir. 2008)) (unpublished). For this reason also, we
continue to recognize the Southern Resident killer whale DPS as a
listable unit.
In addition to delisting because of an error in the original
classification, we may also delist species based on extinction or
recovery. The petition did not include any information on the number of
whales in the population, threats, or risk of extinction. As part of
the ESA listing of the Southern Resident killer whale DPS (70 FR 69903;
November 18, 2005) we conducted an analysis of the five ESA section
4(a)(1) factors and concluded that the DPS was in danger of extinction
and listed it as endangered. While progress toward recovery has been
achieved since the listing, as described in the 5-year review, the
status of the DPS remains as endangered. Since the 5-year review was
completed, additional actions have been taken to address threats, such
as regulations to protect killer whales from vessel impacts (76 FR
20870; April 14, 2011), completion of a scientific review of the
effects of salmon fisheries on Southern Resident killer whales
(Hilborn, 2012), and ongoing technical working groups with the
Environmental Protection Agency to assess contaminant exposure.
However, the population growth outlined in the biological recovery
criteria and some of the threats criteria have not been met. We have no
new information that would change the recommendation in our 5-year
review that the Southern Resident killer whale DPS remain classified as
endangered (NMFS, 2011). Our determination that the Southern Resident
killer whale population constitutes a DPS under the ESA and previous
conclusion that the DPS is in danger of extinction and should retain
endangered status all support our finding that the petitioned action to
delist the Southern Resident killer whale DPS is not warranted.

References Cited

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

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

Dated: July 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs
National Marine Fisheries Service.
[FR Doc. 2013-18824 Filed 8-2-13; 8:45 am]
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