Endangered and Threatened Fish and Wildlife; Description of the Western North Pacific Gray Whale Distinct Population Segment

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 224</CFR> <DEPDOC>[Docket No.: 241206-0316; RTID 0648-XR136]</DEPDOC> <SUBJECT>Endangered and Threatened Fish and Wildlife; Description of the Western North Pacific Gray Whale Distinct Population Segment</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information regarding the proposed rule must be received by January 13, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2024-0095</E> . You may submit comments, information, or data on this document, identified by docket number NOAA-NMFS-2024-0095, by any of the following methods: • <E T="03">Electronic Submissions:</E> Submit all electronic comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> . 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. • <E T="03">Mail:</E> Submit written information to Megan Wallen, NMFS West Coast Region, 7600 Sand Point Way NE, Seattle, WA 98115. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ) 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 <E T="03">et al.</E> 2023) and the 5-year review of the DPS (NMFS 2023) are both available to access on our website at <E T="03">https://www.fisheries.noaa.gov/resource/document/dps-analysis-western-north-pacific-gray-whales-under-esa</E> and <E T="03">https://www.fisheries.noaa.gov/resource/document/western-north-pacific-dps-gray-whale-5-year-review,</E> respectively. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Megan Wallen, Protected Resources Division, West Coast Region, 206-473-0812, <E T="03">megan.wallen@noaa.gov,</E> Adrienne Lohe, Endangered Species Division, Office of Protected Resources, 301-427-8442, <E T="03">adrienne.lohe@noaa.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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 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 <E T="03">Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act</E> (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, <E T="03">i.e.,</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 <E T="03">et al.</E> (2023, see <E T="02">ADDRESSES</E> ) 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 <E T="03">et al.</E> 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 <E T="03">et al.</E> 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 T="03">e.g.,</E> wintering lagoons in Mexico or alo ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 26k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━