80 FR 18343 - Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Gulf of Mexico Bryde's Whale as Threatened or Endangered Under the Endangered Species Act
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 80, Issue 65 (April 6, 2015)
National Oceanic and Atmospheric Administration
Federal Register Volume 80, Issue 65 (April 6, 2015)
| Page Range | 18343-18346 | |
| FR Document | 2015-07836 |
[Federal Register Volume 80, Number 65 (Monday, April 6, 2015)] [Proposed Rules] [Pages 18343-18346] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-07836] [[Page 18343]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 141216999-5311-01] RIN 0648-XD669 Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Gulf of Mexico Bryde's Whale as Threatened or Endangered Under the Endangered Species Act AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: 90-day petition finding, request for information. ----------------------------------------------------------------------- SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the Gulf of Mexico Bryde's whale (Balaenoptera edeni) as an endangered distinct population segment (DPS) under the Endangered Species Act (ESA). We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Accordingly, we will conduct a review of the status of this species to determine if the petitioned action is warranted. To ensure that the status review is comprehensive, we solicit information pertaining to this species from any interested party. DATES: Information and comments on the subject action must be received by June 5, 2015. ADDRESSES: You may submit comments, information, or data on this document, identified by NOAA-NMFS-2014-0157, by either of the following methods:Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0157, click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments. Mail: Submit written comments to NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701 Instructions: 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 by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS Southeast Region, 727-824-5350; or Ron Salz, NMFS Office of Protected Resources, 301-427- 8171. SUPPLEMENTARY INFORMATION: Background On September 18, 2014, we received a petition from the Natural Resources Defense Council to list the Gulf of Mexico population of Bryde's whale (Balaenoptera edeni) as an endangered DPS under the ESA. Supporting information in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps as required by 50 CFR 424.14(b)(2)(iv) was not included in the petition. We requested those materials on October 10, 2014, and on October 21, 2014, we received some materials. We made a second request for outstanding information on November 26, 2014, and received materials the same day. Copies of this petition are available from us (see ADDRESSES, above) and can be found at http://sero.nmfs.noaa.gov/protected_resources/listing_petitions/index.html ESA Statutory and Regulatory Provisions and Evaluation Framework Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a ``positive 90-day finding''), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we are to conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a ``may be warranted'' finding does not prejudge the outcome of the status review. Under the ESA a listing determination addresses a ``species,'' which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase ``distinct population segment'' for the purposes of listing, delisting, and reclassifying a species under the ESA (``DPS Policy''; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is ``endangered'' if it is in danger of extinction throughout all or a significant portion of its range, and ``threatened'' if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered because of any one or a combination of the following ESA section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define ``substantial information'' in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form [[Page 18344]] of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). Court decisions clarify the appropriate scope and limitations of the NMFS' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action ``may be warranted.'' As a general matter, these decisions hold that a petition need not establish a ``strong likelihood'' or a ``high probability'' that a species is either threatened or endangered to support a positive 90-day finding. We evaluate the petitioner's request based upon the information in the petition, including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioner's assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue. To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a ``species'' eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1). Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response. Analysis of the Petition We have determined, based on the information provided in the petition and readily available in our files, that substantial information is presented in the petition indicating that the petitioned action may be warranted. The petition contains a recommended administrative measure, provides the scientific and common name, contains a detailed narrative justification for the recommended measure, provides information on the status of the species, and includes supporting documentation. Below is a synopsis of our analysis of the information provided in the petition and readily available in our files. Bryde's Whale Species Description The Bryde's whale (Balaenoptera edeni) is a baleen whale, more specifically a rorqual, belonging to the same group as the blue whale and the humpback whale. They are distributed around the tropical waters of the world between 40[deg]N and 40[deg]S, or in waters warmer than 16.3[deg]C (Kato, 2002). The Bryde's whale is represented by two subspecies: B. e. edeni and B. e. brydei. The generally larger form (14-15 m in length), B. e. brydei or ``ordinary Bryde's whale,'' is found in temperate and tropical waters within the Atlantic, Pacific, and Indian Oceans, with a somewhat smaller inshore group found in coastal South Africa. The smaller form (rarely exceeding 11.5m in length), B. e. edeni, has been found only in the Western Pacific, in waters off Asia and possibly Australia. Two other species, the sei whale (B. borealis) and the Omura's whale (B. omurai), are closely related to the Bryde's whale and often considered part of the Bryde's whale ``complex'' (Wada et al., 2003; Sasaki et al., 2006). Here the term ``Bryde's whale'' refers to B. edeni and its subspecies (B. e. edeni and B. e. brydei). Like other rorquals, the Bryde's whale has twin blowholes behind a protruding ridge and two rows of baleen plates instead of teeth. Good descriptions of the Bryde's whale can be found in Olsen (1913) and Best (1977). These reports note that the Bryde's whale is dark smoky-gray dorsally and usually white ventrally. It is elongated, with a small, curved dorsal fin, and slender, pointed flippers. These flippers are bluish-black dorsally, grey ventrally and can reach approximately 10 percent of the total length of the animal. The throat area is dark bluish-grey, with 42-54 ventral grooves or furrows that extend back at least to the umbilicus. It has around 280 (ranging between 255 and 365) relatively stiff baleen plates of up to 0.5 m in length on each side of the mouth. Each plate has very coarse bristles forming a ``bush'' at the top. A median groove extending from the umbilicus to the genital aperture is typically present. Bryde's whales are generally found in a range of habitats and water depths. Their distribution in the Gulf of Mexico appears highly limited to a relatively small area off the Florida Panhandle along the shelf edge in DeSoto Canyon at depths between 100 and 1,000 m (e.g., Mullin and Fulling, 2004; [Scaron]irovi[cacute] et al., 2014). There have been no confirmed records of Bryde's whales from the Gulf of Mexico outside the U.S. Exclusive Economic Zone (EEZ), but it cannot be ruled out that the whales move outside this small area, including into the waters off Cuba or Mexico; the U.S. EEZ only makes up 35 percent of the oceanic waters of the Gulf of Mexico (NMFS, 2013). The petitioner presented information on the status of the population of the Gulf of Mexico Bryde's whale, and additional information was also available in our files. There have been four point estimates of population size made since 1991 for the northern Gulf of Mexico (i.e., within the U.S. EEZ only). The best abundance estimate for the Gulf of Mexico Bryde's whale is 33 (Coefficient of Variation [CV] = 1.07) from a summer 2009 oceanic survey, [[Page 18345]] with a minimum population estimate of 16 whales (NMFS, 2012). This estimate is below the 35 animals (CV = 1.10) for the 1991 to 1994 period (Hansen et al., 1995) and the 40 animals (CV = 0.61) estimated for the 1996 to 2001 period (Mullin and Fulling, 2004), and greater than the estimate for 2003 to 2004, which was 15 animals (CV = 1.98) (Mullin, 2007). While there have been four point estimates made, the precision of the estimates is poor, there is no statistical difference between the maximum and minimum estimates (NMFS, 2009), and no interpretation of population trends should be made from these values. NMFS (2009) further cautions that the available estimates, based on surveys conducted only in the U.S. EEZ, cannot account for changes in abundance from shifts in distribution beyond U.S. waters, and NMFS (2012) recommends that Bryde's whales need to be satellite tagged to determine whether they use the northeastern Gulf exclusively or travel to other areas. DPS Analysis The petition requests that we designate Bryde's whales in the Gulf of Mexico as an endangered DPS and presents arguments that Bryde's whales in the Gulf of Mexico meet NMFS and the U.S. Fish and Wildlife Service's (together, the Services) requirements for identifying a DPS eligible for listing. Our DPS policy identifies two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species to which it belongs. A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors-- quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA. If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1stSession) that the authority to list DPSs be used ``sparingly'' while encouraging the conservation of genetic diversity. In carrying out this examination, the Services will consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: (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 a 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; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. The petitioner asserts that genetic and morphological information is evidence the Gulf of Mexico Bryde's whale population qualifies as a distinct population segment under the ESA. The petition cites Rosel and Wilcox (2014) as evidence the Gulf of Mexico Bryde's whale population is as evolutionarily distinct as other recognized subspecies within the Bryde's whale complex. The petition also includes information indicating those whales in the Gulf of Mexico are residents and may be geographically isolated from other Bryde's whales. Analyzing DNA sequence data from three mitochondrial DNA and nine nuclear genes, and examining 42 nuclear microsatellite loci for 21 Bryde's whale samples, Rosel and Wilcox (2014) found that ``Gulf of Mexico Bryde's whale haplotypes are evolutionarily distinct from other members of the Bryde's whale complex.'' Further, Rosel and Wilcox (2014) found that Gulf of Mexico Bryde's whales are as divergent as the two already recognized subspecies of Bryde's whales. Rosel and Wilcox (2014) also stated that the divergence is as great as two species generally are from one another, thus we find that the petition presents substantial evidence that the DPS policy's criteria for discreteness may be met for the Gulf of Mexico Bryde's whale. The petitioner also argues that the Bryde's whale in the Gulf of Mexico is significant because of its unique genetic characteristics, its behavior and morphology, and because it is the only resident baleen whale population in the Gulf of Mexico. The petitioners cite the findings of Rosel and Wilcox (2014) and state the genetic differentiation shown by the Gulf of Mexico Bryde's whale makes it evolutionarily significant. The petitioners also argue that the Gulf of Mexico Bryde's whale is behaviorally and morphologically different from other Bryde's whales. Behaviorally, the Gulf of Mexico Bryde's whales use a call that differs in frequency and repetitive structure from variants used in other Bryde's whale populations ([Scaron]irovi[cacute] et al., 2014; Rice et al., 2014). Morphologically, the Gulf of Mexico Bryde's whales' body lengths seem intermediary to the smaller B. e. edeni and larger B. e. brydei forms (Best, 1977; Rice, 1998). The petitioner also states that as the only resident baleen whale in the Gulf of Mexico, the Bryde's whale fills a unique ecological niche. We therefore conclude that the petition presents sufficient evidence that the DPS policy's criteria for significance may be met for the Gulf of Mexico Bryde's whale. Because the Gulf of Mexico population of Bryde's whale may qualify as a DPS, we will consider it a potentially listable entity for purposes of this 90-day finding. Whether the Gulf of Mexico population of Bryde's whales constitutes a DPS will receive further analysis in the status review. Analysis of ESA Section 4(a)(1) Factors The petitioner states the Gulf of Mexico Bryde's whale is threatened by three (out of five) ESA Section 4(a)(1) factors: present or threatened destruction, modification, or curtailment of its habitat or range; inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence. The petition cites the following threats as contributing to the present or threatened destruction, modification, or curtailment of habitat or range of the Gulf of Mexico Bryde's whale: (1) Ship strikes, (2) acoustic impacts, (3) oil spills, (4) other toxic chemicals, (5) ocean acidification, (6) entanglement in fishing gear, and (7) trophic impacts due to overfishing. We believe that three of these threats (numbers 1, 6, and 7) should be categorized under the Section 4(a)(1) category ``other natural or manmade factors.'' Ship strikes are a recognized source of whale mortality (Laist et al., 2006). In 2009, a Bryde's whale was struck by a ship near Tampa, Florida (Waring et al., 2013); additionally, eight other Bryde's whales are known to have stranded along the U.S. coast of the Gulf of Mexico between 1975 and 1996, from unknown causes (Laist, 2001). While ship collisions probably have a negligible effect on the status and trend of most whale populations, they may have a significant effect on very small [[Page 18346]] populations or discrete groups (Laist et al., 2001), such as the Gulf of Mexico population of Bryde's whale. The petition also states that ship-strike risk in the Gulf of Mexico may increase in the near future given expansion of the Panama Canal and the associated increase in vessel traffic. There was one documented, lethal ship strike of a Bryde's whale in 2009, involving a lactating female (therefore, its calf presumably ultimately died as well). Detected mortalities are a minimum estimate and almost certainly biased low. Total human-caused mortality of the northern Gulf of Mexico Bryde's whale stock is unknown, but, based on the 2009 confirmed mortality and the stock's small size, the annual human-caused mortality to the stock is greater than the stock's potential biological removal level (NMFS, 2012), meaning that the level of mortality threatens the stock's ability to achieve and maintain its optimum sustainable population. After reviewing the references and information in our files, we agree that, given the small population size, injury and death from ship strikes may be impacting Gulf of Mexico Bryde's whale to a degree that raises concerns regarding the risk of extinction. The petition cites numerous sources detailing negative effects of acoustic impacts on marine mammals, including hearing loss, masking of biologically significant sounds, and disruption in foraging and other vital behaviors (NRC, 2003; Weilgart, 2007; CBD, 2012). The petition cites Azzara et al. (2013) to indicate that Gulf of Mexico shipping traffic may be disrupting sperm whale behavior and possibly communication and foraging patterns. The petition indicates the calls of Bryde's whale fall well within the range of commercial shipping noise (5 to 500 Hz [Hildebrand, 2009]) and concludes that the high levels of ambient noise in the Gulf of Mexico are likely to constrain the communication range of Bryde's whales, citing Hatch et al. (2012), and may potentially induce a chronic stress response, citing Rolland et al. (2012). The petition also cites seismic exploration using airguns as a threat that would degrade Bryde's whale communication, based on the frequency overlap between Bryde's whale calls and the peak energy release of the airguns. Based on reports from other baleen whale species (e.g., Clark and Gagnon, 2006; Gailey et al., 2007; Di Iorio and Clark, 2010; Castellote et al., 2012; Blackwell et al., 2013; Cerchio et al., 2014), the petition suggests that seismic noise may, in addition to masking communication, directly disrupt other behaviors of Bryde's whales. When we conduct 90-day reviews of petitions, we typically look for species-specific information that a threat is operative. In this case, considering the information presented on other large cetaceans, the ubiquity of major noise-producing sources in the Gulf of Mexico, and the apparently constrained habitat of Bryde's whales, we find that there is sufficient information presented to suggest that acoustic impacts may be an operative threat to this species, despite the lack of information specific to Bryde's whales. After reviewing the information in the petition, we conclude that commercial and industrial ocean noise may be negatively affecting Gulf of Mexico Bryde's whale behavior, physiology, and acoustic habitat to a degree that raises concerns regarding the risk of extinction. Petition Finding Based on the above information and the criteria specified in 50 CFR 424.14(b)(2), we find substantial information was presented on the ``present or threatened destruction, modification, or curtailment of its habitat or range'' (i.e., acoustic impacts) and on ``other natural or manmade factors'' (i.e., ship strikes) indicating the petitioned action of listing the Gulf of Mexico Bryde's whale (B. e. edeni) as an endangered DPS may be warranted. Since we determined that the threats associated with acoustic impacts and ship strikes indicate that the petitioned action may be warranted, we did not conduct a detailed analysis of the other threats cited by the petitioner here. Because we have found that substantial information was presented to indicate the petitioned action may be warranted, we will commence a status review of the species. During our status review, we will fully address all five of the factors set out in Section 4(a)(1). At the conclusion of the status review, we will determine whether the petitioned action is warranted. As previously noted, a ``may be warranted'' finding does not prejudge the outcome of the status review. Information Solicited As required by section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we are to commence a review of the status of the species and make a determination within 12 months of receiving the petition as to whether the petitioned action is warranted. We intend that any final action resulting from this review be as accurate and as effective as possible. Therefore, we open a 60- day public comment period to solicit information from the public, government agencies, the scientific community, industry, and any other interested parties on the delineation of, threats to, and status of the Gulf of Mexico Bryde's whale including: (1) Historical and current distribution, abundance, and population trends; (2) life history and biological information including adaptations to ecological settings, genetic analyses to assess paternal contribution and population connectivity, and movement patterns to determine population mixing; (3) management measures and regulatory mechanisms designed to protect the species; (4) any current or planned activities that may adversely impact the species; and (5) ongoing or planned efforts to protect and restore the species and habitat. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents. Section 4(b)(1)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.11(b)) require that a listing determination be made solely on the basis of the best scientific and commercial data, without consideration of possible economic or other impacts of the determination. During the 60-day public comment period we are seeking information related only to the status of the Gulf of Mexico Bryde's whale. References Cited A complete list of references is available upon request from the Southeast Regional Office, Protected Resource Division (see ADDRESSES). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: March 31, 2015. Eileen Sobeck, Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2015-07836 Filed 4-3-15; 8:45 am] BILLING CODE 3510-22-P
![Federal Register / Vol. 80, No. 65 / Monday, April 6, 2015 / Proposed Rules 18343
DEPARTMENT OF COMMERCE otherwise sensitive information information, as compared to the narrow
submitted voluntarily by the sender will scope of review at the 90-day stage, a
National Oceanic and Atmospheric be publicly accessible. NMFS will ‘‘may be warranted’’ finding does not
Administration accept anonymous comments (enter ‘‘N/ prejudge the outcome of the status
A’’ in the required fields if you wish to review.
50 CFR Parts 223 and 224 remain anonymous). Under the ESA a listing determination
FOR FURTHER INFORMATION CONTACT: addresses a ‘‘species,’’ which is defined
[Docket No. 141216999–5311–01]
Jason Rueter, NMFS Southeast Region, to also include subspecies and, for any
RIN 0648–XD669
727–824–5350; or Ron Salz, NMFS vertebrate species, any DPS that
Office of Protected Resources, 301–427– interbreeds when mature (16 U.S.C.
Endangered and Threatened Wildlife; 1532(16)). A joint NMFS–U.S. Fish and
90-Day Finding on a Petition To List 8171.
Wildlife Service (USFWS) policy
the Gulf of Mexico Bryde’s Whale as SUPPLEMENTARY INFORMATION:
clarifies the agencies’ interpretation of
Threatened or Endangered Under the Background the phrase ‘‘distinct population
Endangered Species Act segment’’ for the purposes of listing,
On September 18, 2014, we received
AGENCY: National Marine Fisheries delisting, and reclassifying a species
a petition from the Natural Resources
Service (NMFS), National Oceanic and under the ESA (‘‘DPS Policy’’; 61 FR
Defense Council to list the Gulf of
Atmospheric Administration (NOAA), 4722; February 7, 1996). A species,
Mexico population of Bryde’s whale subspecies, or DPS is ‘‘endangered’’ if it
Commerce. (Balaenoptera edeni) as an endangered is in danger of extinction throughout all
ACTION: 90-day petition finding, request DPS under the ESA. Supporting or a significant portion of its range, and
for information. information in the form of bibliographic ‘‘threatened’’ if it is likely to become
references, reprints of pertinent endangered within the foreseeable
SUMMARY: We, NMFS, announce a 90- publications, copies of reports or letters
day finding on a petition to list the Gulf future throughout all or a significant
from authorities, and maps as required portion of its range (ESA sections 3(6)
of Mexico Bryde’s whale (Balaenoptera by 50 CFR 424.14(b)(2)(iv) was not
edeni) as an endangered distinct and 3(20), respectively; 16 U.S.C.
included in the petition. We requested 1532(6) and (20)). Pursuant to the ESA
population segment (DPS) under the those materials on October 10, 2014,
Endangered Species Act (ESA). We find and our implementing regulations, we
and on October 21, 2014, we received determine whether species are
that the petition presents substantial some materials. We made a second
scientific or commercial information threatened or endangered because of
request for outstanding information on any one or a combination of the
indicating that the petitioned action November 26, 2014, and received
may be warranted. Accordingly, we will following ESA section 4(a)(1) factors:
materials the same day. Copies of this The present or threatened destruction,
conduct a review of the status of this petition are available from us (see
species to determine if the petitioned modification, or curtailment of habitat
ADDRESSES, above) and can be found or range; overutilization for commercial,
action is warranted. To ensure that the at http://sero.nmfs.noaa.gov/protected_
status review is comprehensive, we recreational, scientific, or educational
resources/listing_petitions/index.html purposes; disease or predation;
solicit information pertaining to this
species from any interested party. ESA Statutory and Regulatory inadequacy of existing regulatory
Provisions and Evaluation Framework mechanisms; and any other natural or
DATES: Information and comments on
manmade factors affecting the species’
the subject action must be received by Section 4(b)(3)(A) of the ESA of 1973, existence (16 U.S.C. 1533(a)(1), 50 CFR
June 5, 2015. as amended (U.S.C. 1531 et seq.), 424.11(c)).
ADDRESSES: You may submit comments, requires, to the maximum extent ESA-implementing regulations issued
information, or data on this document, practicable, that within 90 days of jointly by NMFS and USFWS (50 CFR
identified by NOAA–NMFS–2014–0157, receipt of a petition to list a species as 424.14(b)) define ‘‘substantial
by either of the following methods: threatened or endangered, the Secretary information’’ in the context of reviewing
• Electronic Submissions: Submit all of Commerce make a finding on whether a petition to list, delist, or reclassify a
electronic comments via the Federal that petition presents substantial species as the amount of information
eRulemaking Portal. Go to scientific or commercial information that would lead a reasonable person to
www.regulations.gov/ indicating that the petitioned action believe that the measure proposed in the
#!docketDetail;D=NOAA-NMFS-2014- may be warranted, and to promptly petition may be warranted. When
0157, click the ‘‘Comment Now!’’ icon, publish such finding in the Federal evaluating whether substantial
complete the required fields, and enter Register (16 U.S.C. 1533(b)(3)(A)). When information is contained in a petition,
or attach your comments. we find that substantial scientific or the Secretary must consider whether the
• Mail: Submit written comments to commercial information in a petition petition: (1) Clearly indicates the
NMFS, Southeast Regional Office, 263 indicates the petitioned action may be administrative measure recommended
13th Avenue South, St. Petersburg, FL warranted (a ‘‘positive 90-day finding’’), and gives the scientific and any
33701 we are required to promptly commence common name of the species involved;
Instructions: Comments sent by any a review of the status of the species (2) contains detailed narrative
other method, to any other address or concerned during which we will justification for the recommended
individual, or received after the end of conduct a comprehensive review of the measure, describing, based on available
Rmajette on DSK2VPTVN1PROD with PROPOSALS
the comment period, may not be best available scientific and commercial information, past and present numbers
considered by NMFS. All comments information. In such cases, we are to and distribution of the species involved
received are a part of the public record conclude the review with a finding as to and any threats faced by the species; (3)
and will generally be posted for public whether, in fact, the petitioned action is provides information regarding the
viewing on www.regulations.gov warranted within 12 months of receipt status of the species over all or a
without change. All personal identifying of the petition. Because the finding at significant portion of its range; and (4)
information (e.g., name, address, etc.), the 12-month stage is based on a more is accompanied by the appropriate
confidential business information, or thorough review of the available supporting documentation in the form
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![18344 Federal Register / Vol. 80, No. 65 / Monday, April 6, 2015 / Proposed Rules
of bibliographic references, reprints of impacts and threats to the species. We Pacific, and Indian Oceans, with a
pertinent publications, copies of reports evaluate any information on specific somewhat smaller inshore group found
or letters from authorities, and maps (50 demographic factors pertinent to in coastal South Africa. The smaller
CFR 424.14(b)(2)). evaluating extinction risk for the species form (rarely exceeding 11.5m in length),
Court decisions clarify the at issue (e.g., population abundance and B. e. edeni, has been found only in the
appropriate scope and limitations of the trends, productivity, spatial structure, Western Pacific, in waters off Asia and
NMFS’ review of petitions at the 90-day age structure, sex ratio, diversity, possibly Australia. Two other species,
finding stage, in making a determination current and historical range, habitat the sei whale (B. borealis) and the
whether a petitioned action ‘‘may be integrity or fragmentation), and the Omura’s whale (B. omurai), are closely
warranted.’’ As a general matter, these potential contribution of identified related to the Bryde’s whale and often
decisions hold that a petition need not demographic risks to extinction risk for considered part of the Bryde’s whale
establish a ‘‘strong likelihood’’ or a the species. We then evaluate the ‘‘complex’’ (Wada et al., 2003; Sasaki et
‘‘high probability’’ that a species is potential links between these al., 2006). Here the term ‘‘Bryde’s
either threatened or endangered to demographic risks and the causative whale’’ refers to B. edeni and its
support a positive 90-day finding. impacts and threats identified in section subspecies (B. e. edeni and B. e. brydei).
We evaluate the petitioner’s request 4(a)(1). Like other rorquals, the Bryde’s whale
based upon the information in the Information presented on impacts or has twin blowholes behind a protruding
petition, including its references, and threats should be specific to the species ridge and two rows of baleen plates
the information readily available in our and should reasonably suggest that one instead of teeth. Good descriptions of
files. We do not conduct additional or more of these factors may be the Bryde’s whale can be found in Olsen
research, and we do not solicit operative threats that act or have acted (1913) and Best (1977). These reports
information from parties outside the on the species to the point that it may note that the Bryde’s whale is dark
agency to help us in evaluating the warrant protection under the ESA. smoky-gray dorsally and usually white
petition. We will accept the petitioner’s Broad statements about generalized ventrally. It is elongated, with a small,
sources and characterizations of the threats to the species, or identification curved dorsal fin, and slender, pointed
information presented, if they appear to of factors that could negatively impact flippers. These flippers are bluish-black
be based on accepted scientific a species, do not constitute substantial dorsally, grey ventrally and can reach
principles, unless we have specific information that listing may be approximately 10 percent of the total
information in our files that indicates warranted. We look for information length of the animal. The throat area is
the petition’s information is incorrect, indicating that not only is the particular dark bluish-grey, with 42–54 ventral
unreliable, obsolete, or otherwise species exposed to a factor, but that the grooves or furrows that extend back at
irrelevant to the requested action. species may be responding in a negative least to the umbilicus. It has around 280
Information that is susceptible to more fashion; then we assess the potential (ranging between 255 and 365)
than one interpretation or that is significance of that negative response. relatively stiff baleen plates of up to 0.5
contradicted by other available m in length on each side of the mouth.
information will not be dismissed at the Analysis of the Petition
Each plate has very coarse bristles
90-day finding stage, so long as it is We have determined, based on the forming a ‘‘bush’’ at the top. A median
reliable and a reasonable person would information provided in the petition groove extending from the umbilicus to
conclude it supports the petitioner’s and readily available in our files, that the genital aperture is typically present.
assertions. In other words, conclusive substantial information is presented in Bryde’s whales are generally found in
information indicating the species may the petition indicating that the a range of habitats and water depths.
meet the ESA’s requirements for listing petitioned action may be warranted. The Their distribution in the Gulf of Mexico
is not required to make a positive 90- petition contains a recommended appears highly limited to a relatively
day finding. We will not conclude that administrative measure, provides the small area off the Florida Panhandle
a lack of specific information alone scientific and common name, contains a along the shelf edge in DeSoto Canyon
negates a positive 90-day finding, if a detailed narrative justification for the at depths between 100 and 1,000 m (e.g.,
reasonable person would conclude that recommended measure, provides Mullin and Fulling, 2004; Širović et al.,
the unknown information itself suggests information on the status of the species, 2014). There have been no confirmed
an extinction risk of concern for the and includes supporting records of Bryde’s whales from the Gulf
species at issue. documentation. Below is a synopsis of of Mexico outside the U.S. Exclusive
To make a 90-day finding on a our analysis of the information provided Economic Zone (EEZ), but it cannot be
petition to list a species, we evaluate in the petition and readily available in ruled out that the whales move outside
whether the petition presents our files. this small area, including into the
substantial scientific or commercial waters off Cuba or Mexico; the U.S. EEZ
information indicating the subject Bryde’s Whale Species Description only makes up 35 percent of the oceanic
species may be either threatened or The Bryde’s whale (Balaenoptera waters of the Gulf of Mexico (NMFS,
endangered, as defined by the ESA. edeni) is a baleen whale, more 2013).
First, we evaluate whether the specifically a rorqual, belonging to the The petitioner presented information
information presented in the petition, same group as the blue whale and the on the status of the population of the
along with the information readily humpback whale. They are distributed Gulf of Mexico Bryde’s whale, and
available in our files, indicates that the around the tropical waters of the world additional information was also
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petitioned entity constitutes a ‘‘species’’ between 40°N and 40°S, or in waters available in our files. There have been
eligible for listing under the ESA. Next, warmer than 16.3°C (Kato, 2002). The four point estimates of population size
we evaluate whether the information Bryde’s whale is represented by two made since 1991 for the northern Gulf
indicates that the species at issue faces subspecies: B. e. edeni and B. e. brydei. of Mexico (i.e., within the U.S. EEZ
extinction risk that is cause for concern; The generally larger form (14–15 m in only). The best abundance estimate for
this may be indicated in information length), B. e. brydei or ‘‘ordinary Bryde’s the Gulf of Mexico Bryde’s whale is 33
expressly discussing the species’ status whale,’’ is found in temperate and (Coefficient of Variation [CV] = 1.07)
and trends, or in information describing tropical waters within the Atlantic, from a summer 2009 oceanic survey,
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![18346 Federal Register / Vol. 80, No. 65 / Monday, April 6, 2015 / Proposed Rules
populations or discrete groups (Laist et whales. When we conduct 90-day information from the public,
al., 2001), such as the Gulf of Mexico reviews of petitions, we typically look government agencies, the scientific
population of Bryde’s whale. The for species-specific information that a community, industry, and any other
petition also states that ship-strike risk threat is operative. In this case, interested parties on the delineation of,
in the Gulf of Mexico may increase in considering the information presented threats to, and status of the Gulf of
the near future given expansion of the on other large cetaceans, the ubiquity of Mexico Bryde’s whale including: (1)
Panama Canal and the associated major noise-producing sources in the Historical and current distribution,
increase in vessel traffic. There was one Gulf of Mexico, and the apparently abundance, and population trends; (2)
documented, lethal ship strike of a constrained habitat of Bryde’s whales, life history and biological information
Bryde’s whale in 2009, involving a we find that there is sufficient including adaptations to ecological
lactating female (therefore, its calf information presented to suggest that
settings, genetic analyses to assess
presumably ultimately died as well). acoustic impacts may be an operative
Detected mortalities are a minimum threat to this species, despite the lack of paternal contribution and population
estimate and almost certainly biased information specific to Bryde’s whales. connectivity, and movement patterns to
low. Total human-caused mortality of After reviewing the information in the determine population mixing; (3)
the northern Gulf of Mexico Bryde’s petition, we conclude that commercial management measures and regulatory
whale stock is unknown, but, based on and industrial ocean noise may be mechanisms designed to protect the
the 2009 confirmed mortality and the negatively affecting Gulf of Mexico species; (4) any current or planned
stock’s small size, the annual human- Bryde’s whale behavior, physiology, and activities that may adversely impact the
caused mortality to the stock is greater acoustic habitat to a degree that raises species; and (5) ongoing or planned
than the stock’s potential biological concerns regarding the risk of efforts to protect and restore the species
removal level (NMFS, 2012), meaning extinction. and habitat. We request that all
that the level of mortality threatens the information be accompanied by: (1)
Petition Finding
stock’s ability to achieve and maintain Supporting documentation such as
its optimum sustainable population. Based on the above information and maps, bibliographic references, or
After reviewing the references and the criteria specified in 50 CFR reprints of pertinent publications; and
information in our files, we agree that, 424.14(b)(2), we find substantial (2) the submitter’s name, address, and
given the small population size, injury information was presented on the
any association, institution, or business
and death from ship strikes may be ‘‘present or threatened destruction,
that the person represents. Section
impacting Gulf of Mexico Bryde’s whale modification, or curtailment of its
habitat or range’’ (i.e., acoustic impacts) 4(b)(1)(A) of the ESA and NMFS’
to a degree that raises concerns
and on ‘‘other natural or manmade implementing regulations (50 CFR
regarding the risk of extinction.
The petition cites numerous sources factors’’ (i.e., ship strikes) indicating the 424.11(b)) require that a listing
detailing negative effects of acoustic petitioned action of listing the Gulf of determination be made solely on the
impacts on marine mammals, including Mexico Bryde’s whale (B. e. edeni) as an basis of the best scientific and
hearing loss, masking of biologically endangered DPS may be warranted. commercial data, without consideration
significant sounds, and disruption in Since we determined that the threats of possible economic or other impacts of
foraging and other vital behaviors (NRC, associated with acoustic impacts and the determination. During the 60-day
2003; Weilgart, 2007; CBD, 2012). The ship strikes indicate that the petitioned public comment period we are seeking
petition cites Azzara et al. (2013) to action may be warranted, we did not information related only to the status of
indicate that Gulf of Mexico shipping conduct a detailed analysis of the other the Gulf of Mexico Bryde’s whale.
traffic may be disrupting sperm whale threats cited by the petitioner here.
behavior and possibly communication Because we have found that References Cited
and foraging patterns. The petition substantial information was presented A complete list of references is
indicates the calls of Bryde’s whale fall to indicate the petitioned action may be
available upon request from the
well within the range of commercial warranted, we will commence a status
Southeast Regional Office, Protected
shipping noise (5 to 500 Hz review of the species. During our status
review, we will fully address all five of Resource Division (see ADDRESSES).
[Hildebrand, 2009]) and concludes that
the high levels of ambient noise in the the factors set out in Section 4(a)(1). At Authority
Gulf of Mexico are likely to constrain the conclusion of the status review, we
the communication range of Bryde’s will determine whether the petitioned The authority for this action is the
whales, citing Hatch et al. (2012), and action is warranted. As previously Endangered Species Act of 1973, as
may potentially induce a chronic stress noted, a ‘‘may be warranted’’ finding amended (16 U.S.C. 1531 et seq.).
response, citing Rolland et al. (2012). does not prejudge the outcome of the Dated: March 31, 2015.
The petition also cites seismic status review.
Eileen Sobeck,
exploration using airguns as a threat
that would degrade Bryde’s whale Information Solicited Assistant Administrator for Regulatory
communication, based on the frequency As required by section 4(b)(3)(B) of Programs, National Marine Fisheries Service.
overlap between Bryde’s whale calls the ESA and NMFS’ implementing [FR Doc. 2015–07836 Filed 4–3–15; 8:45 am]
and the peak energy release of the regulations (50 CFR 424.14(b)(2)), we BILLING CODE 3510–22–P
airguns. Based on reports from other are to commence a review of the status
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baleen whale species (e.g., Clark and of the species and make a determination
Gagnon, 2006; Gailey et al., 2007; Di within 12 months of receiving the
Iorio and Clark, 2010; Castellote et al., petition as to whether the petitioned
2012; Blackwell et al., 2013; Cerchio et action is warranted. We intend that any
al., 2014), the petition suggests that final action resulting from this review
seismic noise may, in addition to be as accurate and as effective as
masking communication, directly possible. Therefore, we open a 60-day
disrupt other behaviors of Bryde’s public comment period to solicit
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Document Created: 2015-12-18 11:18:12
Document Modified: 2015-12-18 11:18:12
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | 90-day petition finding, request for information. | |
| Dates | Information and comments on the subject action must be received by June 5, 2015. | |
| Contact | Jason Rueter, NMFS Southeast Region, 727-824-5350; or Ron Salz, NMFS Office of Protected Resources, 301-427- 8171. | |
| FR Citation | 80 FR 18343 | |
| RIN Number | 0648-XD66 | |
| CFR Citation | 50
CFR
223 50 CFR 224 |
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