We, NMFS, announce a 90-day finding on a petition from WildEarth Guardians to list the sperm whale (Physter macrocephalus) as an endangered or threatened distinct population segment (DPS) in the Gulf of Mexico. We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. As a result, we hereby initiate a status review of sperm whales in the Gulf of Mexico to determine whether the petitioned action is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species and potential critical habitat from any interested party.
Scientific and commercial information pertinent to the petitioned action must be received by May 28, 2013.
ADDRESSES: You may submit information or data, identified by ``NOAA-NMFS-2013-0059,'' by any one of the following methods:
Electronic Submissions: Submit all electronic information via the Federal eRulemaking Portal http://www.regulations.gov. To submit information via the e-Rulemaking Portal, first click the ``submit a comment'' icon, then enter ``NOAA-NMFS-2013-0059'' in the keyword search. Locate the document you wish to provide information on from the resulting list and click on the ``Submit a Comment'' icon to the right of that line.
Mail or hand-delivery: Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Instructions: All information received is a part of the public record and may be posted to http://www.regulations.gov without change.
All personally identifiable information (for example, name, address, etc.) voluntarily submitted may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept information from anonymous sources, although submitting comments anonymously will prevent NMFS from contacting you if NMFS has difficulty retrieving your submission. Attachments to electronic submissions will be accepted in Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Heather Coll, NMFS, Office of Protected Resources, (301) 427-8455; or Marta Nammack, NMFS, Office of Protected Resources (301) 427-8469.
Background
On December 9, 2011, we received a petition from WildEarth
Guardians to list the sperm whale (Physeter macrocephalus) in the Gulf
of Mexico as an endangered or threatened DPS under the Endangered
Species Act (ESA); sperm whales are currently listed as a single
endangered species throughout their global range (35 FR 8495; June 2,
1970). The petitioner also requested designation of critical habitat
concurrent with the listing to help ensure survival of sperm whales in
the Gulf of Mexico. Copies of the petition are available from us (see
ADDRESSES, above).
ESA Statutory and Regulatory Provisions and Evaluation Framework
In accordance with section 4(b)(3)(A) of the ESA, to the maximum
extent practicable and within 90 days of receipt of a petition to list
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)). When we find
that substantial scientific or commercial information in a petition
indicates the petitioned action may be warranted, 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, within
12 months of receipt of the petition we conclude the review with a
finding as to whether, in fact, the petitioned action is warranted.
Because the finding at the 12-month stage is based on a comprehensive
review of all best available information, as compared to the narrow
scope of review at the 90-day stage, which focuses on information set
forth in the petition, this 90-day finding does not prejudge the
outcome of the status review.
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 to which it belongs; and (2) the
significance of the population segment to the species to which it
belongs.
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)). 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: (A) The
present or threatened destruction, modification, or curtailment of
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D)
inadequacy of existing regulatory mechanisms; and (E) any other natural
or manmade factors affecting the species' existence (16 U.S.C.
1533(a)(1), 50 CFR 424.11(c)).
The ESA requires us to designate critical habitat concurrent with
final listing rule ``to the maximum extent prudent and determinable''
(16 U.S.C. 1533 (a)(3)(A)). The ESA defines ``critical habitat'' as ``*
* * the specific areas within the geographical area occupied by the
species at the time it is listed * * * on which are found those
physical and biological features (I) essential to the conservation of the species and (II) which may require
special management considerations or protection; and * * * specific
areas outside the geographical area occupied by the species at the time
it is listed * * * upon a determination * * * that such areas are
essential for the conservation of the species.'' 16 U.S.C. 1532 (5)(A).
ESA-implementing regulations issued jointly by the Services (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. In
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 of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
Judicial decisions have clarified the appropriate scope and
limitations of the Services' review of petitions at the 90-day finding
stage, in making a determination that 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.
To make a 90-day finding on a petition to list, delist, or
reclassify a species, we evaluate whether the petition presents
substantial scientific or commercial information indicating the
petitioned action may be warranted, 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 petitioners' sources and characterizations of the
information presented if they appear to be based on accepted scientific
principles, unless we have specific information in our files that
indicates that 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 disregarded at
the 90-day finding stage, so long as it is reliable and a reasonable
person would conclude that it supports the petitioners' assertions. In
other words, conclusive information indicating that the species may
meet the ESA's requirements for listing is not required to make a
positive 90-day finding.
Analysis of Petition
We first evaluated whether the petition presented the information
indicated in 50 CFR 424.14(b)(2). The petition contains information on
the species, including the taxonomy, species description, geographic
distribution, habitat, population status and trends, and factors
contributing to the species' population numbers. While the petitioner
acknowledged the worldwide endangered listing of sperm whales, they
requested that we partition a Gulf of Mexico DPS from the worldwide
listing as ``the DPS deserves separate listing as it is a discrete
population that is also significant to the species and faces additional
unique threats to its survival.''
DPS Analysis
The petition requests that we designate sperm whales in the Gulf of
Mexico as a threatened or endangered DPS, and presents arguments that
sperm whales in the Gulf of Mexico meet the Services' requirements for
identifying a DPS eligible for listing. Our joint NMFS-USFWS DPS policy
(February 7, 1996; 61 FR 4722) 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, 1st
Session) that the authority to list DPS's 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.
Petitioners present information indicating that sperm whales in the
Gulf of Mexico are physically and behaviorally different from other
sperm whales, and that international boundaries and separate management
also qualify them as discrete under the DPS policy. Physical
differences presented in the petition are genetic and size differences.
With respect to behavior, petitioners cite communication, group size,
and lack of migration as differences rendering sperm whales in the Gulf
of Mexico as discrete from other populations. Finally, petitioners
assert that the Gulf of Mexico population is partly delineated by
international boundaries with Mexico and therefore subject to different
governmental management in Mexican waters.
Petitioners argue that sperm whales in the Gulf of Mexico are
significant because their lack of migration behavior indicates
persistence in an ecological setting unusual or unique for the taxon
and that the loss of such a population would result in a significant
gap in the range of the taxon. They also point to genetic
characteristics to support their assertion that sperm whales in the
Gulf of Mexico are significant in that they differ from other
populations.
Analysis of ESA Section 4(a)(1) Factors
The petition states that sperm whales in the Gulf of Mexico are
more at risk than other sperm whales which are listed globally as
endangered. Petitioners identify at least three causal factors in
section 4(a)(1) of the ESA that are contributing to the decline of
sperm whales in the Gulf of Mexico. The petition provides information
on the present or threatened destruction, modification, or curtailment
of the petitioned DPS' habitat or range; the inadequacy of existing
regulatory mechanisms; and other natural or manmade factors affecting
its continued existence. Specifically, the petition presents
information on multiple threats to sperm whales in the Gulf of Mexico,
including oil and gas development and the recent Deepwater Horizon
spill, destruction of coastal habitats, water pollution including the
Gulf's ``dead zone,'' fishery interactions, anthropogenic noise, ship
strikes, and climate change. The petition also states that there is a
lack of adequate regulatory mechanisms to manage those threats.
Petition Finding
Based on the above information and criteria specified in 50 CFR
424.14(b)(2), we find that the petitioners present substantial
scientific and commercial information indicating that listing sperm
whales (Physeter macrocephalus) in the Gulf of Mexico as an endangered
or threatened DPS may be warranted.
Information Solicited
To ensure that the status review is based on the best available
scientific and commercial data, we are soliciting information on
whether sperm whales in the Gulf of Mexico should be identified as a
DPS and, if so, whether the DPS should be listed as endangered or
threatened based on the above ESA section 4(a)(1) factors.
Specifically, we are soliciting information, for this population, in
the following areas: (1) Its discreteness in relation to the remainder
of its species; (2) its significance to the global species of sperm
whales; (3) historical and current population status and trends; (4)
historical and current distribution; (5) migratory movements and
behavior; (6) genetic population structure; (7) current or planned
activities that may adversely impact sperm whales in the Gulf of
Mexico; and (8) ongoing efforts to conserve sperm whales in the Gulf of
Mexico. We request that all information and data be accompanied by
supporting documentation such as (1) 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.
We are also requesting information on areas within U.S.
jurisdiction that may qualify as critical habitat for sperm whales in
the Gulf of Mexico that we might consider for designation. Areas that
include the physical and biological features essential to the
conservation of the species should be identified, and information
regarding the potential need for special management considerations for
those features should be provided. Essential features include, but are
not limited to (1) space for individual growth and for normal behavior;
(2) food, water, air, light, minerals, or other nutritional or
physiological requirements; (3) cover or shelter; (4) sites for
reproduction and development of offspring; (5) habitats that are
protected from disturbance or are representative of the historical,
geographical and ecological distributions of the species (50 CFR
424.12(b)).