Daily Rules, Proposed Rules, and Notices of the Federal Government
On October 1, 2009, we received a petition from the Natural Resources Defense Council requesting that we list the insular population of Hawaiian false killer whales as an endangered species under the ESA and designate critical habitat concurrent with listing. The petition considered the insular population of Hawaiian false killer whales and the Hawaii insular stock of false killer whales recognized in the 2008 Stock Assessment Report (SAR) (Carretta
On January 5, 2010, we determined that the petitioned action presented substantial scientific and commercial information indicating that the petitioned action may be warranted, and we requested information to assist with a comprehensive status review of the species to determine if the MHI insular false killer whale warranted listing under the ESA (75 FR 316). A biological review team (BRT; Team) was formed to review the status of the species and the report (Oleson
On November 17, 2010, we proposed to list the MHI insular false killer whale DPS as an endangered species under the ESA (75 FR 70169), and solicited comments from all interested parties including the public, other governmental agencies, the scientific community, industry, and environmental groups. Specifically, we requested information regarding: (1) Habitat within the range of the insular DPS that was present in the past, but may have been lost over time; (2) biological or other relevant data concerning any threats to the MHI insular false killer whale DPS; (3) the range, distribution, and abundance of the insular DPS; (4) current or planned activities within the range of the insular DPS and their possible impact on this DPS; (5) recent observations or sampling of the insular DPS; and (6) efforts being made to protect the MHI insular false killer whale DPS. The proposed rule also provides background information on the biology and ecology of the MHI insular false killer whale.
Since the publication of the proposed rule in November 2010, we have identified a previously unrecognized Northwestern Hawaiian Islands (NWHI) population of false killer whales and have received updated satellite tagging information and other new research papers on the MHI insular population. The new NWHI population has been identified as a separate stock for management purposes in the draft 2012 SAR (Carretta
The ESA defines “species” to include subspecies or a DPS of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). The FWS and NMFS have adopted a joint policy describing what constitutes a DPS of a taxonomic species (61 FR 4722; February 7, 1996). The joint DPS policy identifies two criteria for making DPS determinations: (1) The population must be discrete in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be significant to the remainder of the taxon 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 found to be discrete under one or both of the above conditions, its biological and ecological significance to the taxon to which it belongs is evaluated. Considerations under the significance criterion may include, but are not limited to: (1) “Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the 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 historical range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics” (61 FR 4725; February 7, 1996).
The ESA defines an “endangered species” as one that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532 (6) and (20)). The statute requires us to determine whether any species is endangered or threatened because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We are to make this determination based solely on the best available scientific and commercial information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species.
The ESA requires that we make listing determinations based solely on the best available scientific and commercial information (16 U.S.C. 1533(b)(1)(A)). Upon consideration of comments raised during the first and second public comment period, and upon review of the new NWHI stock information and the new research papers identified in the
Following an evaluation of all available information on MHI insular, NWHI, and pelagic false killer whales, the BRT found that the MHI insular population of false killer whales continues to meet the discreteness and significance criteria to be considered a DPS under the ESA. The BRT's determination of ESA discreteness and significance are summarized below. The complete decision analysis can be found in the Reevaluation of the DPS Designation for Hawaiian (now Main Hawaiian Islands) Insular False Killer Whales (Oleson
The BRT found that MHI insular false killer whales continue to meet the discreteness criteria due to marked separation from other false killer whales based on behavioral and genetic factors. This finding is supported by evaluation of new information on individual association patterns, genetics, phylogeographic analysis, and telemetry data in addition to the original information detailed in the proposed rule. In particular, MHI insular false killer whales form a tight social network, with most identified individuals linked to all others through at least two distinct associations and with none of the identified individuals linking to animals outside of the nearshore areas of the MHI. These association data are strong and relate directly to the mating patterns and the resulting genetic patterns that have been observed. Further, phylogeographic analysis indicates that the MHI insular population is nearly isolated with little, if any, emigration of females between adjacent island-associated populations. Additionally, significant differences occur in mitochondrial (mtDNA) and nuclear DNA (nDNA) between the MHI insular population and the other populations, indicating there is little male-mediated gene flow. Finally, telemetry studies show all 27 satellite-tagged MHI insular false killer whales have remained within the MHI (Baird
Several BRT members noted that there is still uncertainty about false killer whale behavior and the association of the MHI insular and NWHI populations; however, the BRT concluded that the weight of the evidence continues to strongly support recognition of MHI insular false killer whales as behaviorally discrete from other false killer whales in the taxon (Oleson
Unlike in the original DPS determination the BRT found only weak support for finding discreteness based on ecological factors. Although movement data continues to indicate that MHI insular false killer whales have adapted to a different ecological habitat than their pelagic conspecifics, BRT members were less persuaded that this ecological setting is unique under the DPS policy, given the existence of an
As for the significance criteria, the BRT again found support for the conclusion that MHI insular false killer whales are significant to the taxon to which they belong. Significance to the taxon was based primarily on marked genetic characteristic differences, although weaker support for existence in a unique ecological setting and maintenance of cultural diversity was also evident. Further, the BRT continued to find slightly stronger support for significance based on all three factors taken together (Oleson
Based on new genetic samples from the MHI, the NWHI and nearby central North Pacific areas (Chivers
The BRT acknowledged that uncertainty remains in the genetic comparisons of the MHI insular population to other Pacific false killer whales. Although the MHI insular population is very well sampled with roughly two-thirds of the individuals represented, pelagic false killer whale genetics contain large sampling gaps to both the west and east of Hawaii, and uncertainty remains about the structure of the NWHI population. Low levels of male-mediated gene flow were identified based on genetic results. Despite these uncertainties, the available sample size from Hawaiian false killer whales (MHI, NWHI, and pelagic) is substantial and overall the Team felt that significant differences based on multiple measures were noteworthy and that it is unlikely that new samples will significantly alter the overall story toward more similarity between these groups. Therefore, the weight of the evidence available was in favor of marked differentiation in genetic characteristics between the discrete MHI insular false killer whale population and other populations of the species, thus making the MHI population significant to the taxon (Oleson
In the 2010 status review, the BRT found reasonably strong support for significance based on persistence in a unique ecological setting and for significance of cultural uniqueness. Both of these factors still provide support for the significance determination; however, they are weaker than in the initial evaluation, primarily because of uncertainties raised with the existence of another island-associated population in the NWHI. Factors that support ecological significance include the influence of different oceanographic factors, such as leeward eddies and freshwater input, which result in localized higher productivity in the MHI but which do not occur in the NWHI. Habitat analyses indicate that clusters of false killer whales preferentially use the northern coast of Molokai and Maui, the north end of the Big Island, and a small region southwest of Lanai (Baird
The BRT still found that culture (knowledge passed through learning from one generation to the next) is likely to play an important role in the evolutionary potential of false killer whales because transmitted knowledge may help whales adapt to changes in local habitats. However, the finding was weaker than in the previous evaluation due to the lack of information on cultural differences between the MHI insular and NWHI populations. While some Team members noted that cultural transmission is a strong force in social odontocetes, playing a significant role in population structure and persistence, others thought that there was insufficient evidence of specific differences in cultural aspects of the MHI and NWHI populations. Uncertainty was represented within the BRT's evaluation of culture, though overall the Team did find weak support for cultural significance (Oleson
The BRT discussed that while there is independent support for ecological and cultural factors for significance, they concluded that these factors taken alone do not provide strong support for significance of the DPS. However, the combination of ecological and cultural factors, taken together with the stronger genetic evidence, provided slightly greater support for significance of the DPS than the genetics alone by increasing the Team's confidence that the population is unique. As in the 2010 status review, the BRT separately evaluated the significance criteria based on all of the factors taken together and found that the particular combination of qualities makes this population unique; the MHI insular population has adapted to this particular environment in a way that likely has not and cannot occur with this species anywhere else in the world. The BRT emphasizes that, even without considering ecological and cultural factors, the significance factor is met because MHI insular false killer whales differ markedly from other populations of the species in their genetic characteristics (Oleson
One BRT member dissented on both discreteness and significance. The dissenting opinion (documented in full in the Reevaluation of the DPS Designation (Oleson
The ESA instructs us to rely on the best available science, even when that information is uncertain or incomplete. While we acknowledge the data gaps detailed in Oleson
The BRT was not charged to reconsider its earlier extinction risk analysis (Oleson
The public may wish to visit our Web site (see
Hawaiian insular false killer whales are marine mammals and thus protected under the MMPA. Some comments on the proposed rule reference issues related to the MMPA and our evaluation of conservation efforts considers a number of MMPA programs, so this section briefly provides relevant background information. More detailed information on the MMPA can be found on our Web site at
The MMPA requires stock assessments for each marine mammal stock that occurs in U.S. waters. As of the publication of this final rule, the most recent stock assessment reports (SARs) are the final 2011 SAR and the draft 2012 SAR (Carretta
The MMPA requires NMFS to develop and implement take reduction plans to assist in the recovery or prevent the depletion of strategic marine mammal stocks. Strategic stocks are those for which the level of direct human-caused mortality exceeds the potential biological removal (PBR) level, which is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future, or which is listed as a threatened species or endangered species under the ESA. PBR is the maximum number of animals, not including natural deaths, that can be removed annually from a stock, while allowing that stock to reach or maintain its optimum sustainable population level. The immediate goal of a take reduction plan is to reduce, within six months of its implementation, the incidental mortality or serious injury (M&SI) of marine mammals from commercial fishing to levels less than the PBR level established for that stock. The long-term goal is to reduce, within five years of its implementation, the incidental M&SI of marine mammals from commercial fishing operations to insignificant levels approaching a zero M&SI rate (50 CFR 229.2 establishes a default insignificance value of 10 percent of the PBR for a stock of marine mammals). On July 18, 2011, NMFS published a proposed False Killer Whale Take Reduction Plan (proposed FKWTRP; 76 FR 42082) to reduce serious injuries and mortalities of false killer whales in the Hawaii-based deep-set and shallow-set longline fisheries. A final Take Reduction Plan and implementing regulations are expected shortly.
On November 17, 2010, we solicited public comments on the proposed listing of the MHI insular false killer whale DPS for a total of 90 days (75 FR 70169). A public hearing on the proposed rule was held on January 20, 2011, in Honolulu, Oahu, Hawaii. We received comments on the proposed rule from 53,408 commenters; over 53,000 of these submissions were substantially identical form letters. As previously mentioned, new information on a NWHI population became available before our MHI population final listing determination was made and on September 18, 2012, we solicited public comments on that new data (77 FR 57554). We received comments on the new information from 15 commenters. Public comments on the proposed rule and on the new information are available at:
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input. Similarly, a joint NMFS/FWS policy for peer review in ESA activities requires us to solicit independent expert review from at least three qualified specialists, concurrent with the public comment period (59 FR 34270; 1 July 1994). In accordance with these policies, we solicited technical review of the proposed rule from three qualified specialists. Comments were received from one of the independent experts and those substantive comments are addressed below.
Nearly all public comments received during the first public comment period on the proposed rule (75 FR 70169; November 17, 2010) were some form of a form letter or petition and were in favor of listing the MHI insular false killer whale DPS as an endangered species. With respect to the remaining public comments, which were substantive, we have responded to these through our general responses below. Substantive comments were received from seven groups: two research, conservation, and education groups; the Humane Society; the Marine Mammal Commission; the State of Hawaii; the Western Pacific Regional Fishery Management Council; and the Hawaii Longline Association.
In the proposed rule, we solicited information from the public to inform the designation of critical habitat in the event the DPS was listed. The comments received concerning critical habitat are not germane to this listing decision and will not be addressed in this final rule. They will instead be addressed during any subsequent rulemaking on critical habitat for the MHI insular false killer whale DPS.
We disagree that case decisions, including
Although Congress did not seek to make any single factor controlling when
In this case, we applied a case-specific interpretation of “endangered” and utilized the best available data to analyze the ESA section 4 factors in light of the MHI insular false killer whale's particular circumstances. This approach conforms with the ESA's requirement for species-specific status reviews (16 U.S.C. 1533(b)(1)(A)). Whether a species is ultimately listed as an endangered species depends on the specific life history and ecology of the species, the nature of the threats, the species' response to those threats, and population numbers and trends.
In the proposed rule, we explained that the [MHI] insular false killer whale population is presently in danger of extinction due to a number of currently-existing ESA section 4 risk factors. For example, we noted that its small population size when compared to historical data indicates that the population has declined over the last two decades, and small populations are particularly susceptible to environmental threats and inbreeding depression. The population is genetically isolated from both the Hawaiian pelagic and the NWHI false killer whales, with little gene flow into the MHI insular population from other areas. The MHI insular false killer whale exhibits strong habitat specialization and social structure, rendering the population vulnerable to competition for resources and habitat in relatively shallow waters, and to loss of individual members with corresponding loss of knowledge transfer within the population. Competition with fisheries, interactions with fisheries, the impacts of reduced total prey biomass, and contaminants are also risk factors for the population and its habitat.
In light of the foregoing, we believe that MHI insular false killer whales have experienced a decline in numbers as a result of factors that have not been abated, that show no evidence of stabilization, and currently place the population in danger of extinction. Any event that reduces survival (e.g., disease outbreak, oil spill) can adversely affect the entire group because: the whales reproduce only every 6 or 7 years and become reproductively senescent in their mid-40s; the estimated effective population size is only about 50 breeding adults (Chivers
Finally, the BRT determined, and we agree, that the small population size and evidence of a decline in the species, combined with several factors that are likely to continue to have, or have the potential to adversely impact the population in the near future, describe a population that is at high risk of extinction. High risk of extinction was defined by the BRT as within 3 generations (75 years) or the maximum age, whichever is greater, that there is at least a 5 percent chance of the population falling below a level where recovery is not likely. Because false killer whales are highly social animals, this level was set at 20 animals, which is about the average group size.
The imminence of these threats is just one factor to be weighed in this process. Although we find a high risk of extinction where there is at least a 5 percent chance of the population falling below a level where recovery is not likely, in this case we found that most Population Viability Analysis (PVA) models exceeded the 5 percent chance of extinction in 75 years by a very wide margin, with most indicating a greater-than-90 percent chance of extinction within 3 generations (Oleson
NMFS acknowledges that while there are substantial data gaps for some aspects of MHI insular false killer whale ecology and abundance, the available data do allow a proper assessment of whether this population is a DPS. Uncertainty and alternative viewpoints are explicitly acknowledged by the BRT in the original DPS analysis and are described in Appendix A of the status review report, as well as in the Reevaluation of the DPS Designation for Hawaiian (now Main Hawaiian Islands) Insular False Killer Whales (Oleson
We are working with the State of Hawaii through an ESA section 6 cooperative agreement and grant funding to prevent and document nearshore fishery interactions with Hawaiian monk seals and sea turtles. The State is evaluating fishery interactions in mainly shore-based hook-and-line gear and gillnets, and is characterizing these fisheries in terms of
We will continue to work with the State of Hawaii and other partners to assess and address marine mammal interactions in state-managed fisheries.
It is correct, however, that no genetic samples are available from animals that have interacted with the fishery within the insular-pelagic population overlap zone. Genetic sampling provides a useful and reliable method for positively accounting for marine mammal interactions, but like identification photographs, the method is available for only a small fraction of bycaught individuals. Accordingly, the lack of genetic evidence raises uncertainty in the estimates of actual interaction rates; it does not suggest that interactions with the MHI insular stock are not occurring. The average annual rate of mortality and serious injury (M&SI) of insular false killer whales over the past 5 years of available data is 0.50 animals per year as of the draft 2012 SAR (based on data from 2006-2010, Carretta
The potential biological removal (PBR) level for the MHI insular population was recently revised to 0.30 whales per year in the draft 2012 SAR (Carretta
Finally, the statement from the status review report is taken out of context. The correct quote follows from discussion of population attribution based on aerial surveys and states “* * * sightings of false killer whales by observers aboard fishing vessels cannot be attributed to the insular population when no identification photographs are obtained.” The statement refers only to the inability to assess population range based on fishery observer sightings, not to appropriate methods for prorating bycatch, nor to the potential for bycatch from the MHI insular stock given its occurrence within the insular-pelagic overlap zone.
As for the quote “historically more frequent interactions may have occurred,” the statement continues with “* * * when there was much greater overlap between insular false killer whales and longline fisheries.” Prior to the longlining exclusion zone it is likely that there were interactions between longline fisheries and insular false killer whales, given the considerable amount of fishing effort within the population's range. There are no data available to evaluate the level of interactions before 1992, but it is not unreasonable to infer that they may have occurred.
Regarding the statement that a “decline of the insular DPS has still occurred,” based on false killer whale encounter rates from the aerial survey data in the 1990s and early 2000s, a downward trend in sightings does suggest a decline in the population, even after the longline exclusion zone was enacted in 1992.
With respect to the statement “the greatest threats to insulars are small population effects and hooking, entanglement, or intentional harm by fishermen,” this is the finding of the BRT and we generally concur in the risk analysis, based on all available data and appropriate consideration of uncertainty in each factor. As discussed in the response to Comment 30, although we are aware of reports alleging intentional harm by shooting, a review of agency records does not substantiate these allegations. We do, however, have records documenting unauthorized takes by fishing crew in order to discourage marine mammals from depredating catch. For example, two observer reports document the intentional discharge of diesel oil into ocean waters, which is reasonably likely to result in take of protected marine mammal species including the MHI insular false killer whale.
NMFS' FKWTRP proposed rule would include the extension of the boundaries of the year-round prohibited area for longline fishing (the “Main Hawaiian Islands Longline Fishing Prohibited Area”). The objective of the FKWTRP is to reduce impacts of commercial fisheries on strategic false killer whale stocks to below each stock's PBR within six months, and ultimately to negligible levels.
However, in the FKWTRP proposed rule, NMFS did not suggest that the risk to insular false killer whales from longline fishing would be eliminated. NMFS believes that not all risk to the MHI insular population has been eliminated because longlining would still be allowed within a portion of the insular-pelagic overlap zone, and because longline fishing is not the only risk factor impacting the population, as discussed further below.
As described in the response to Comment 8 above, since 1992, longline fishing has been excluded year-round from the entire core range of the MHI insular population and part of the extended range (i.e., the area of overlap between the MHI insular and Hawaiian pelagic populations), and further excluded seasonally (February-September) in a large portion of the insular population's extended range. The proposed revised boundary of the Main Hawaiian Islands Longline Fishing Prohibited Area (via the FKWTRP) would further restrict longlining year-round within a portion of the insular population's extended range where longline fishing previously had been allowed between October and January.
Additionally, the Southern Exclusion Zone (SEZ), if triggered by a specified number of observed Hawaii pelagic false killer whale mortalities or serious injuries in the Hawaii-based deep-set longline fishery, would close an area south of the Main Hawaiian Islands within the EEZ to deep-set longline fishing. The SEZ would include a small portion of the insular-pelagic overlap zone in which longline fishing is currently allowed. This closure would offer additional protections from hooking or entanglement in the deep-set longline fishery to any MHI insular false killer whales in the overlap zone when the SEZ is closed.
As discussed above in the response to Comment 4, other measures such as the proposed use of circle hooks with a wire diameter of less than or equal to 4.5 mm (0.177 in) in the deep-set longline fishery, if implemented, are expected to further mitigate this risk.
However, the proposed revision of the Main Hawaiian Islands longline fishing prohibited area boundaries would leave approximately 26 percent of the insular-pelagic overlap zone open to longline fishing, at the offshore edges of the overlap zone (53,992 km
Although the objectives of MMPA section 118 complement the conservation goals of the ESA, we do not believe that the protections afforded by the FKWTRP proposed rule would be sufficient to obviate the need for ESA listing. The FKWTRP proposed rule would not address all other identified threats to insulars, even from commercial fisheries. As discussed elsewhere, the MHI insular stock also faces risk by virtue of its low population numbers, inbreeding depression, genetic isolation, contaminants, and disease, among others. We therefore conclude that listing under the ESA is appropriate and necessary.