Proposed Rule2024-29235
Endangered and Threatened Fish and Wildlife; Description of the Western North Pacific Gray Whale Distinct Population Segment
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Published
December 12, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS proposes a revision to the Code of Federal Regulations (CFR) to update the description of the western North Pacific gray whale distinct population segment (DPS) under the Endangered Species Act (ESA) of 1973 in light of the best available science. The proposed revision is informed by our recently completed 5-year review and a DPS analysis prepared by a Status Review Team. We do not propose to change the ESA-listing status of western North Pacific gray whales, which are classified as an endangered species.
Full Text
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<title>Federal Register, Volume 89 Issue 239 (Thursday, December 12, 2024)</title>
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[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Proposed Rules]
[Pages 100458-100462]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29235]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No.: 241206-0316; RTID 0648-XR136]
Endangered and Threatened Fish and Wildlife; Description of the
Western North Pacific Gray Whale Distinct Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes a revision to the Code of Federal Regulations
(CFR) to update the description of the western North Pacific gray whale
distinct population segment (DPS) under the Endangered Species Act
(ESA) of 1973 in light of the best available science. The proposed
revision is informed by our recently completed 5-year review and a DPS
analysis prepared by a Status Review Team. We do not propose to change
the ESA-listing status of western North Pacific gray whales, which are
classified as an endangered species.
DATES: Comments and information regarding the proposed rule must be
received by January 13, 2025.
ADDRESSES: A plain language summary of this proposed rule is available
at <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0095">https://www.regulations.gov/docket/NOAA-NMFS-2024-0095</a>. You may
submit comments, information, or data on this document, identified by
docket number NOAA-NMFS-2024-0095, by any of the following methods:
<bullet> Electronic Submissions: Submit all electronic comments via
the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
the Search box, enter the above docket number for this document. Then,
click on the Search icon. On the resulting web page, click the
``Comment'' icon, complete the required fields, and enter or attach
your comments.
<bullet> Mail: Submit written information to Megan Wallen, NMFS
West Coast Region, 7600 Sand Point Way NE, Seattle, WA 98115.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous).
The western North Pacific gray whale DPS analysis (Weller et al.
2023) and the 5-year review of the DPS (NMFS 2023) are both available
to access on our website at <a href="https://www.fisheries.noaa.gov/resource/document/dps-analysis-western-north-pacific-gray-whales-under-esa">https://www.fisheries.noaa.gov/resource/document/dps-analysis-western-north-pacific-gray-whales-under-esa</a> and
<a href="https://www.fisheries.noaa.gov/resource/document/western-north-pacific-dps-gray-whale-5-year-review">https://www.fisheries.noaa.gov/resource/document/western-north-pacific-dps-gray-whale-5-year-review</a>, respectively.
FOR FURTHER INFORMATION CONTACT: Megan Wallen, Protected Resources
Division, West Coast Region, 206-473-0812, <a href="/cdn-cgi/l/email-protection#c4a9a1a3a5aaeab3a5a8a8a1aa84aaaba5a5eaa3abb2"><span class="__cf_email__" data-cfemail="91fcf4f6f0ffbfe6f0fdfdf4ffd1fffef0f0bff6fee7">[email protected]</span></a>,
Adrienne Lohe, Endangered Species Division, Office of Protected
Resources, 301-427-8442, <a href="/cdn-cgi/l/email-protection#1d7c796f747873737833717275785d73727c7c337a726b"><span class="__cf_email__" data-cfemail="a1c0c5d3c8c4cfcfc48fcdcec9c4e1cfcec0c08fc6ced7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
NMFS and the U.S. Fish and Wildlife Service (FWS) jointly
administer the ESA, with NMFS having jurisdiction over most marine
species, and FWS having jurisdiction over terrestrial
[[Page 100459]]
species. NMFS and FWS make determinations as to the endangered or
threatened status of species under ESA section 4 (16 U.S.C. 1533). The
ESA defines ``species'' as including subspecies, and, for vertebrates
only, ``distinct population segments'' (DPSs). 16 U.S.C. 1532(16). NMFS
and FWS's joint Policy Regarding the Recognition of Distinct Vertebrate
Population Segments Under the Endangered Species Act (61 FR 4722,
February 7, 1996) (DPS Policy) clarifies the agencies' interpretation
of the phrase ``distinct population segment'' for purposes of listing,
delisting, and classifying species under the ESA.
Regulations identifying the species under NMFS's jurisdiction that
are listed as threatened or endangered are published at 50 CFR 223.102
(threatened species) and 50 CFR 224.101 (endangered species). The FWS
maintains master lists of all threatened and endangered species, i.e.,
species under both NMFS's jurisdiction and species under FWS'
jurisdiction, at 50 CFR 17.11 (threatened and endangered animals) and
50 CFR 17.12 (threatened and endangered plants). The ESA requires NMFS
and FWS to review the status of each listed species at least once every
5 years to determine whether the listing remains accurate (16 U.S.C.
1533(c)(2)). Recently, we completed a 5-year review of the status of
the western North Pacific (WNP) DPS of gray whales (NMFS 2023). Because
WNP gray whales were listed as a DPS prior to NMFS and FWS's issuance
of the DPS Policy, and because new information pertinent to gray whale
stock structure had become available, NMFS also convened a Status
Review Team (SRT) composed of NMFS scientists with relevant expertise
to evaluate WNP gray whale classification in light of the 1996 DPS
Policy. The SRT's full analysis and conclusions are provided in Weller
et al. (2023, see ADDRESSES) and summarized in this proposed rule.
WNP gray whales were originally listed in 1970, when NMFS listed
the entire Pacific Ocean population of gray whales as an endangered
species (35 FR 18309, December 2, 1970). In 1993, NMFS determined that
the eastern North Pacific (ENP) gray whale population had recovered to
pre-exploitation levels and should be delisted (58 FR 3121, January 7,
1993). ENP gray whales are those that migrate between wintering areas
in Baja California, Mexico, and summer feeding areas in the Bering and
Chukchi Seas, except for a small subset of whales that summer and feed
along the Pacific coast between Kodiak Island, Alaska and northern
California (Carretta et al. 2023). NMFS also determined that there was
a geographically separate WNP gray whale population, which had not
recovered and should remain classified as ``endangered.'' The WNP gray
whale DPS is currently listed as ``endangered,'' and is described in
the CFR as ``western North Pacific (Korean) gray whales'' (50 CFR
224.101(h)). There is no designated critical habitat for WNP gray
whales.
Since WNP gray whales were first listed as a DPS in 1993, new
information has been developed about the species' migratory patterns
and range, including information demonstrating that some WNP gray
whales transit the Pacific Ocean and overlap with part of the ENP gray
whale migration. However, genetic, ecological, ranging, and behavioral
differences exist supporting designation of the ENP and WNP as separate
species under the ESA (Weller et al. 2023). The SRT was asked to assess
whether the description of the WNP gray whale DPS as currently listed
remains accurate in light of the best currently available science. The
SRT was also tasked with evaluating whether WNP gray whales meet the
criteria for designation as a DPS under our DPS Policy. The SRT found
that within the WNP, three gray whale units met the DPS policy criteria
of discreteness and significance: (1) a unit comprising gray whales
that spend their entire lives in the WNP, (2) a unit comprising gray
whales that feed in the WNP in the summer and fall and migrate to the
ENP in the winter, and (3) a unit including both (1) and (2) combined
as a single unit.
Under the DPS Policy, two criteria are considered when determining
whether a vertebrate population segment qualifies as a DPS: (1) the
discreteness of the of the population segment in relation to the
remainder of the species to which it belongs; and (2) the significance
of the population segment to the species to which it belongs (61 FR
4722, February 7, 1996). Both criteria must be met in order for a
population segment to be considered a DPS. A population segment may be
considered discrete if it is markedly separated from other populations
of the same taxon as a consequence of physical, physiological,
ecological, or behavioral factors; or if it is delimited by
international governmental boundaries within which differences in
control of exploitation, management of habitat, conservation status, or
regulatory mechanisms exist. Genetic differences between the population
segments being considered may be used to evaluate discreteness.
The SRT concluded that each of the three units of gray whales
within the WNP being evaluated were markedly separate from (a) one
another (for the WNP-only and WNP-ENP units) and (b) ENP gray whales
(for all three units) as a result of behavioral and ecological factors.
These include different migratory routes, strong matrilineal site
fidelity to WNP feeding grounds, and use of different biogeographical
realms for all or part of their life cycle. The WNP-only unit shows
seasonal movements restricted to the WNP, where they migrate through
and overwinter in areas where the bottom topography is characterized by
a broad continental shelf. In contrast, the WNP-ENP unit and the ENP
whales are observed in ENP waters, where the continental shelf is
generally narrow with deeper water found close to shore, during the
winter or early spring months (e.g., wintering lagoons in Mexico or
along the U.S. and Canadian west coast). Both the WNP-only and the WNP-
ENP units (and thus the combined WNP-only + WNP-ENP unit) show
matrilineal site fidelity to the Sakhalin feeding ground in the WNP,
which results in patterns of differential habitat (or biogeographical
realm) use when any of these units are compared to the ENP whales that
use feeding grounds in the Arctic and/or the temperate North Pacific.
In total, these factors provide strong evidence for behavioral
separation between the three WNP units, supporting the discreteness of
the three units. In addition, there is some evidence for whales
primarily breeding within their unit based on genetic differentiation
and/or the known timing of reproduction and migration (Weller et al.
2023). Nuclear genetic differentiation supports separation of the
combined WNP-only + WNP-ENP unit, as well as the WNP-ENP unit alone,
from the broader ENP gray whale population, suggesting a lack of
substantial interbreeding between either of these two WNP units and the
ENP gray whale population. Additionally, while mating behavior has been
observed on the wintering grounds, migration route, and feeding
grounds, the primary mating period is estimated to occur between late
November and mid-December, when gray whales would typically be at the
start of their migration from feeding to wintering areas. Given that
the WNP-only and WNP-ENP whales use different migratory routes and
wintering grounds, and the WNP-ENP whales would likely still be west of
the main ENP migratory corridor, spatial overlap between the WNP-only
and WNP-ENP units or between either of those units (and thus the
combined unit) and the ENP whales would likely be minimal during this
[[Page 100460]]
time period. Therefore, the evidence is consistent with a lack of
substantial interbreeding with another unit, supporting the
discreteness of the three WNP units. NMFS finds that the evidence
presented by the SRT described here supports the discreteness of the
three WNP units under the DPS policy.
If a population segment is considered discrete, its biological and
ecological significance is then evaluated in terms of the importance of
the population segment to the taxon to which it belongs. Some of the
considerations that can be used to determine a discrete population
segment's significance to the taxon as a whole include: (1) persistence
of the population segment in an unusual or unique ecological setting;
(2) evidence that loss of the population segment would result in a
significant gap in the range of the taxon; and (3) evidence that the
population segment differs markedly from other populations of the
species in its genetic characteristics. After considering the best
available information, the SRT concluded that each of the three WNP
units is significant to the taxon largely as a result of two factors:
(1) that loss of the unit would result in a significant gap in the
range of the species and (2) marked differences in biological and
ecological factors, which include differences in behavioral or cultural
diversity of each unit (Weller et al. 2023). Given the differences
between the three WNP units in their geographic range and migration
patterns, the SRT concluded that the loss of any of the three units
would result in a significant gap in the range of the taxon. In
particular, if the WNP-only unit were extirpated, the western migratory
routes and wintering ground would presumably no longer be occupied by
the taxon, leading to the loss of a substantial portion of the range of
North Pacific gray whales. While these areas are currently used by a
relatively small fraction of the gray whales in the North Pacific,
evidence suggests these regions historically supported much larger
numbers of gray whales. While the range of the WNP-ENP unit overlaps in
part with that of ENP whales, they represent a large proportion of the
whales that feed in the WNP and thus their loss would result in a
substantial decline in the number of whales using western Pacific
feeding areas and an increased risk of loss of gray whales in this part
of the range. With the loss of the combined unit, gray whales would be
limited to ENP waters and the Arctic feeding grounds with no presence
in the entire WNP region. Of the three WNP units, the combined unit had
the strongest support for significance, because the full range of all
WNP gray whales would be lost with the loss of the combined unit.
The SRT also found strong evidence of significance of each of the
three units based on evidence of behavioral differences relating to
their differential migration patterns. These differences result in
variation in bioenergetic costs, predation pressure, and exposure to
anthropogenic risks among units and may have led to the development of
unique adaptations among the WNP-only and WNP-ENP units when compared
to each other and to ENP gray whales. Energy requirements are estimated
to be greater for whales in the WNP-only and WNP-ENP units than for ENP
gray whales (migrating between Mexico and the Arctic feeding grounds)
due to the longer migration distance of WNP-ENP whales and higher
metabolic costs for overwintering in the WNP. Additionally, while all
units are known targets for killer whale attacks, gray whales
identified off Sakhalin Island have the highest reported prevalence of
killer whale-associated scars in a baleen whale population, with gray
whales in the ENP showing a lower prevalence of killer whale scars,
suggesting strong differences in predation pressure. Gray whales do not
occupy any other ocean basin, so gray whales in the WNP are likely
important to the resiliency, redundancy, and representation of the
species as a whole, particularly as this is an area predicted to change
dramatically due to climate change. Significance of the ecological
setting and genetic differentiation received less support due to
uncertainty and a lack of applicable data. After reviewing the best
available information and conclusions of the SRT, we agree that each of
the three population segments meets the significance criterion of the
DPS policy.
Given the outcome of their analysis, the SRT agreed that there are
two mutually exclusive options for recommending a DPS listing that
include: (1) a Separate Option where the WNP-only unit and the WNP-ENP
unit are separate DPSs, or (2) a Combined Option where the WNP-only
unit and WNP-ENP unit are combined into a single unit (i.e., WNP-only +
WNP-ENP unit) and considered one DPS (Weller et al. 2023). The SRT
recommended the second option of designating a single unit, given the
challenges with identifying and evaluating the status of and managing
the otherwise separate units of gray whales under the ESA, such as
estimating abundance and trends, survival, and evaluating recovery
(Weller et al. 2023). The DPS composition as recommended by the SRT
includes WNP whales that spend their entire life in the WNP and those
that feed in the WNP in the summer and fall and migrate to the ENP in
the winter. The SRT concluded that ``the most practicable means of
obtaining positive management outcomes is to combine the units into a
single DPS,'' given the challenges mentioned above (Weller et al.
2023). Based on the recommendations of the SRT, and the lines of
evidence leading to the combined unit meeting the DPS criteria, NMFS
has determined that WNP gray whales should be defined as ``gray whales
that reside or feed in the western North Pacific in the waters of
Vietnam, China, Japan, Korea (Republic of Korea and/or Democratic
People's Republic of Korea), or the Russian Far East, including
southern and southeastern Kamchatka.'' Under that definition, whales
that have different wintering ground affiliations would be considered
part of the same DPS, with members of the DPS spending summers in the
WNP (off Sakhalin Island and southeastern Kamchatka Peninsula).
Our 5-year review of the western North Pacific gray whale assessed
the status of the DPS (using the DPS definition recommended by the SRT)
and concluded in a recommendation that the DPS remain classified as
endangered (see NMFS 2023 for detailed assessment). Therefore, we are
not proposing to reclassify the DPS.
As a result of the 5-year review and recommendations from the SRT
regarding the DPS description, we conclude that the description of the
listed entity should be updated in NMFS' list and FWS's master list.
This proposed revision reflects an effort to more accurately represent
the WNP gray whale DPS based on the best available science. We
summarize the proposed revision below and provide the full text of the
proposed updates to the listed species description at 50 CFR part 224
in the regulatory text at the end of this Federal Register document.
All public comments on this proposed revision will be considered prior
to issuing any final rule.
Endangered Species at 50 CFR 224.101
Revision to Endangered Species Description
Below we summarize the proposed revision to the description of our
endangered species listed in 50 CFR 224.101. Based on our recently
completed DPS analysis and 5-year review of the status of the western
North Pacific DPS of gray whales, the description of the endangered
species
[[Page 100461]]
should be revised to account for more information on the population
since its listing in 1994 (59 FR 31094, June 16, 1994). These changes
do not constitute a listing or delisting of the DPS, but simply a
revision to reflect a more accurate description of the listed entity.
We propose to revise the description of the listed entity to read:
``Gray whales that reside or feed in the western North Pacific in the
waters of Vietnam, China, Japan, Korea (Republic of Korea and/or
Democratic People's Republic of Korea), or the Russian Far East,
including southern and southeastern Kamchatka''. The change proposed
for this DPS is to remove the word ``Korean'' from the description
which doesn't fully capture the geographic area occupied by the DPS.
References
Copies of previous Federal Register documents and related reference
materials are available on the internet at <a href="https://www.fisheries.noaa.gov/species/gray-whale/conservation-management">https://www.fisheries.noaa.gov/species/gray-whale/conservation-management</a>, or
upon request (see FOR FURTHER INFORMATION CONTACT section).
Classification
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 proposed rule is exempt from review under Executive
Order (E.O.) 12866. This proposed rule does not contain a collection of
information requirement for the purposes of the Paperwork Reduction
Act.
Federalism
In accordance with E.O. 13132, we determined that this proposed
rule does not have significant federalism effects and that a federalism
assessment is not required. 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 shared with the relevant State agencies.
National Environmental Policy Act of 1969 (NEPA)
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, 657 F. 2d 829 (6th Cir.
1981), we have concluded that NEPA does not apply to ESA listing
actions.
Government-to-Government Relationship With Tribes
E.O. 13084 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian Tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
Government must provide the funds necessary to pay the direct
compliance costs incurred by the Tribal governments. This proposed rule
does not impose substantial direct compliance costs on Indian Tribal
governments or communities. Accordingly, the requirements of section
3(b) of E.O. 13084 do not apply to this rulemaking. Nonetheless, given
the recent decision to waive the MMPA moratorium on taking ENP gray
whales to allow the Makah Indian Tribe to conduct a limited ceremonial
and subsistence hunt (89 FR 51600, June 18, 2024), we notified the
Makah Tribe about the proposed changes and provided the opportunity for
comments or concerns. We will continue to inform potentially affected
Tribal governments, solicit their input, and coordinate on future
management actions pertaining to western North Pacific gray whales.
List of Subjects in 50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Authority: 16 U.S.C. 1531 et seq.
Dated: December 9, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 224 as follows:
PART 224--ENDANGERED MARINE AND ANADRAMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. In Sec. 224.101, amend the table in paragraph (h) by revising the
entry for ``Whale, gray (Western North Pacific DPS)'' to read as
follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) * * *
[[Page 100462]]
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Species \1\
--------------------------------------------------------------------------- Citation(s) for Critical ESA
Description of listing habitat rules
Common name Scientific name listed entity determination(s)
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* * * * * * *
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Marine Mammals
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* * * * * * *
Whale, gray (Western North Eschrichtius robustus..... Gray whales 35 FR 8491, June NA NA
Pacific DPS). that reside or 2, 1970; 59 FR
feed in the 31094, June 16,
western North 1994; [Insert
Pacific in the Federal
waters of Register page
Vietnam, where the
China, Japan, document
Korea begins], [date
(Republic of of publication
Korea and/or when published
Democratic as a final
People's rule].
Republic of
Korea), or the
Russian Far
East,
including
southern and
southeastern
Kamchatka.
* * * * * * *
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\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
[FR Doc. 2024-29235 Filed 12-11-24; 8:45 am]
BILLING CODE 3510-22-P
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