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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0912161432-2630-04]

RIN 0648-XT37

Endangered and Threatened Wildlife and Plants; Endangered Status for the Main Hawaiian Islands Insular False Killer Whale Distinct Population Segment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
SUMMARY: In response to a petition from the Natural Resources Defense Council, we, the NMFS, issue a final determination to list the Main Hawaiian Islands insular false killer whale (Pseudorca crassidens) distinct population segment (DPS) as an endangered species under the Endangered Species Act (ESA). We intend to consider critical habitat for this DPS in a separate rulemaking. The effect of this action will be to implement the protective features of the ESA to conserve and recover this species.
DATES: This final rule is effective on December 28, 2012.
ADDRESSES: National Marine Fisheries Service, Pacific Islands Regional Office, Protected Resources Division, 1601 Kapiolani Blvd., Suite 1110, Honolulu HI, 96814.
FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS, Pacific Islands Regional Office, 808-944-2238; Lisa van Atta, NMFS, Pacific Islands Regional Office, 808-944-2257; or Dwayne Meadows, NMFS, Office of Protected Resources, 301-427-8403. The final rule, references, and other materials relating to this determination can be found on our Web site athttp://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html.
SUPPLEMENTARY INFORMATION: Background

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) (Carrettaet al.,2009) (available athttp://www.nmfs.noaa.gov/pr/pdfs/sars/), which we completed as required by the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361et seq.), to be synonymous. However, in light of new information in the draft 2012 SAR (Carrettaet al.,2012b) that identifies a third stock of false killer whales associated with the Northwestern Hawaiian Islands (discussed later), for the purposes of this listing decision we now refer to the Hawaiian insular false killer whale as the Main Hawaiian Islands (MHI) insular population of false killer whales.

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 (Olesonet al.,2010) (hereafter “status review report”) was produced and used to generate the proposed rule. Please refer to our Web site (seeFOR FURTHER INFORMATION CONTACT) for access to the status review report and the reevaluation of the DPS designation (discussed later), which details MHI insular false killer whale biology, ecology, and habitat, the DPS determination, past, present, and future potential risk factors, and overall extinction risk.

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 (Carrettaet al.,2012b). Because this new information could be relevant to the final determination of whether the MHI insular false killer whale qualifies as a DPS for listing under the ESA, on September 18, 2012, we published a Notice of Availability in theFederal Register(77 FR 57554) announcing the availability of this new information and the reopening of public comment for a 15-day period pertaining to the new information. We received comments from 15 commenters during this reopened period. Summaries of these comments are included belowalong with public comments received in response to the proposed rule.

Determination of Species Under the ESA

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.

Re-Evaluation of DPS Determination

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 theFederal Registernotice reopening public comment on the proposed rule, and to ensure that the best available information was considered, we reconvened the BRT. As we did in the original status review, we asked them to use the criteria in the joint NMFS-U.S. Fish and Wildlife Service DPS policy (61 FR 4722; February 7, 1996), to evaluate whether, in light of this new information regarding the NWHI population, and other information, the proposed Hawaiian insular false killer whale DPS, as previously described, continues to meet the criteria of a DPS. The BRT defined a DPS finding as support for discreteness and significance by at least five of the eight Team members, and at least 50 percent of the plausibility points (see the status review report for formal methods used for the DPS assessment). The BRT updated and reevaluated the original findings with respect to the discreteness and significance criteria in light of the new information available since the 2010 status review.

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 (Olesonet al.,2012). Please see our Web site (seeFOR FURTHER INFORMATION CONTACT) to access this document.

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 (Bairdet al.,2012), and consist of three primary social clusters with different primary habitats.

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 (Olesonet al.,2012).

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 anisland-associated population within the NWHI.

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 (Olesonet al.,2012).

Based on new genetic samples from the MHI, the NWHI and nearby central North Pacific areas (Chiverset al.,2011; Martienet al.,2011), the BRT found stronger support that MHI insular false killer whales differ markedly from other populations of the species in their genetic characteristics. The magnitude of mitochondrial (mtDNA) differentiation is large enough to infer that time has been sufficient and gene flow low enough to allow adaptation to MHI insular habitat and that the area would not be readily repopulated by pelagic whales without such adaptation. MHI insular false killer whales exhibit strong phylogeographic patterns that are consistent with a founding event for island-associated false killer whales, followed by local evolution of a mitochondrial haplotype unique to the MHI insular population. Although NWHI false killer whales share one haplotype with MHI insular false killer whales, each population is also characterized by its own unique daughter haplotype. Occurrence of a unique daughter haplotype within a relatively small sample from the NWHI population is significant as nearly two-thirds of individuals in the MHI insular population have been sampled without any evidence of this haplotype in that population. The nDNA also continue to suggest strong differentiation of the MHI insular population, perhaps even stronger than in the initial evaluation because of new information on whales in the NWHI. A Bayesian analysis (using the software program STRUCTURE) using all sampled false killer whale populations (Chiverset al.,2011) indicated separation into two populations—the MHI insular population and all others, including the NWHI island-associated animals. The same STRUCTURE analysis indicates that male-mediated gene flow into the MHI insular population from false killer whales in other areas, including island-associated animals in the NWHI, is at a very low level (Olesonet al.,2012). The nDNA results suggest very low gene flow from other populations, such that individually sampled MHI insular false killer whales can be genetically assigned to the MHI insular population with high likelihood.

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 (Olesonet al.,2012).

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 (Bairdet al.,2012). This behavior suggests that whales may seek out areas where prey are concentrated by local oceanographic conditions. The MHI insular false killer whales appear to generally occur closer to land and in shallower water than the whales in the NWHI population, which may be related to differences in oceanographic conditions in the two locations. The BRT noted uncertainty with regard to the relationship between these seemingly unique MHI oceanographic processes and the ecology of a pelagic predator such as false killer whales. The BRT assigned plausibility points in favor of significance based on ecological setting, but noted the greater uncertainty about this factor than in the original DPS evaluation (Olesonet al.,2012).

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 (Olesonet al.,2012).

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 (Olesonet al.,2012).

One BRT member dissented on both discreteness and significance. The dissenting opinion (documented in full in the Reevaluation of the DPS Designation (Olesonet al.,2012)) was that the recommendation for a DPS finding gave too much weight to genetic evidence, and that the genetic evidence was not sufficiently convincing due to substantial uncertainties in the data. In particular, the dissent noted that only four NWHI false killer whales had been genetically sampled, which could be an insufficient sample to establish whether the differences in genetics indicate a true separation of the NWHI population from the MHI insular population. The dissent also noted that there are also large sampling gaps in the pelagic population. The dissent noted that the mitochondrial DNA haplotypes found in the MHI insular population could be found elsewhere in the inadequately sampled areas. Further, inadequate sampling may also create bias in the data against detecting male-mediated gene flow, which could reduce the likelihood that the MHI insular population adapted to the local habitat.

Summary of Evaluation of DPS Determination

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 Olesonet al.(2012), we believe that the BRT has appropriately considered uncertainty in reaching the DPS finding. The data relied upon represents the best available information to NOAA in making this determination. Although the dissenting BRT member notes that the mitochondrial DNA haplotypes found in the MHI insular could be found elsewhere in other unsampled populations, we do not find that the mere possibility of such countervailing data is sufficient to overcome the DPS finding. We conclude that the evidence supporting discreteness and significance based on behavioral and genetic factors, marked genetic characteristic differences, existence in a unique ecological setting, and maintenance of cultural diversity, respectively, between MHI insular false killer whales and their conspecifics supports a DPS designation.

The BRT was not charged to reconsider its earlier extinction risk analysis (Olesonet al.,2010), and we have no reason to disturb that analysis.

The public may wish to visit our Web site (seeFOR FURTHER INFORMATION CONTACT) for a copy of the Reevaluation of the DPS Designation for Hawaiian (now Main Hawaiian Islands) Insular False Killer Whales (Olesonet al.,2012). This reevaluation summarizes the new scientific information available since the completion of the status review report in 2010, provides an update on Hawaiian false killer whale taxonomy, biology, and ecology, and includes a DPS determination, evaluation, and scores.

Relevant Background Information Pertaining to the Marine Mammal Protection Act

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 athttp://www.nmfs.noaa.gov/pr.

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 (Carrettaet al.,2012a; 2012b). The final 2012 SAR is anticipated to be published in theFederal Registerin the spring or summer of 2013.

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.

Summary of Comments Received in Response to the Proposed Rule

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:www.regulations.gov(search on ID NOAA-NMFS-2009-0272-0022). Summaries of the substantive comments received, and our responses, are provided below, organized by category.

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.

Independent Peer Reviewer Comments

Comment 1:The discussion of threats, specifically pollutants, anthropogenic noise, disease from environmental contaminants, and climate change, is extremely speculative. These are threats faced by most cetacean populations and for most there is little or no direct evidence linking any of them to a cetacean population decline.

Response:We believe that because the threats referenced by the commenter are faced by all cetacean populations they must be acknowledged and evaluated in order to fully assess the risk of extinction for this population of MHI insular false killer whales. Moreover, there is ample evidence that pollutants, anthropogenic noise, and environmental contaminants represent a risk to cetacean populations. Cetaceans have been found stranded with plastic bags or other forms of plastic blocking their airways or in their stomach. Shipping noise and military sonar have been repeatedly shown to disrupt foraging and communication, as well as cause disorientation or death for a variety of species. Environmental contaminants have been shown to occur at very high levels in insular false killer whales and are known to cause immune system dysfunction in the closely related species, killer whales. Therefore, even though individually these factors may not be a significant threat to this population, we consider the cumulative impact of the threats to be a risk factor based on the best available information.

Comment 2:Mitochondrial DNA (mtDNA) differences between Hawaii pelagic and insular populations are quite high. However, the amount of nuclear differentiation presented in Chiverset al.(2010) is quite low. Furthermore, the nDNA analysis did not correct for multiple pairwise tests and when that is done, there is no significant differentiation between these two stocks. This suggests there may be quite a lot of male-mediated gene flow between these two stocks, reducing the support for the discreteness determination. Finally, while there is disagreement on the use of the Bonferroni technique for controlling for multiple pairwise comparisons, there is little disagreement on the need to apply some correction for multiple tests.

Response:We agree that the amount of nuclear differentiation presented in Chiverset al.(2010) is low. Moreover, whether F-st (Fixation index—a measure of population differentiation due to genetic structure) and its analogs actually measure genetic differentiation is currently being debated in the literature. However, the levels detected were reasonably within the range of what would be expected from the level of mtDNA genetic differentiation detected, when corrected for mutation rate. With respect to correcting for multiple pairwise tests, the application of a correction factor was not considered appropriate because pairwise comparisons of putative populations were considered independent and they effectively reduce the Type I error rate. The tradeoff of the latter is to increase Type II error rates, and thus the risk of erroneously interpreting test statistics. Furthermore, Chiverset al.(2011) conducted a Bayesian analysis (STRUCTURE) using all sampled false killer whale populations and the results indicated separation into two populations—the MHI insular population and all others, including the newly recognized NWHI island-associated animals. The same STRUCTURE analysis indicates that male-mediated gene flow into the MHI insular population from false killer whales in other areas, including island-associated animals in the NWHI, is at a very low level. The nDNA results suggest very low gene flow from other populations, such that individually sampled MHI insular false killer whales can be genetically assigned to the MHI insular population with high likelihood. Please refer to our responses to Comments 8 and 9 for further information.

Public Comments From the First Public Comment Period

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.

Scientific and Legal Standards Pertaining to the Main Hawaiian Islands Insular False Killer Whale DPS

Comment 3:One commenter questioned the legal standards of the proposed rule, stating that applicable law requires NMFS, at a minimum, to provide its interpretation of the “endangered” definition; explain how its interpretation conforms to the text, structure, and legislative history of the ESA; explain how its interpretation is consistent with judicial interpretations of the ESA; explain how its interpretation serves policy objectives; and address whether its interpretation could undermine those policy objectives. The commenter stated that because the proposed rule fails to engage in this analysis, NMFS must reconsider the proposed rule and re-issue a new proposed rule or a not warranted finding.

Response:Section 4 of the ESA requires us to determine whether any species is an endangered species or a threatened species because of any of the ESA section 4(a)(1) listing factors. An “endangered species” is “any species which is in danger of extinction throughout all or a significant portion of its range.” A “threatened species” is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” In the proposed rule, we explained the present demographic risks establishing that the [MHI] insular false killer whale is “in danger of extinction” and therefore should be listed as “endangered.”

We disagree that case decisions, includingIn re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation,748 F. Supp. 2d 19 (D.D.C. 2010), indicate that the proposed rule was insufficient with respect to defining “endangered” and “threatened.” The legislative history of the ESA indicates Congress left to the discretion of the Services (NMFS and the U.S. Fish and Wildlife Service; collectively “Services”) the task of giving meaning to the terms through the process of case-specific analyses that necessarily depend on the Services' expertise to make the highly fact-specific decisions to list species as endangered or threatened. The polar bear decision confirmed this interpretation and specifically noted that the inherent ambiguity in the definition of “endangered species” affords the listing agency flexibility when adapting the policy to fit “infinitely variable conditions,” based on its technical expertise in the area and on the specific facts of the case.Id.at 27 (quotingLichterv.United States,334 U.S. 742, 785 (1948)). Far from requiring an agency to set forth a particular definition, the court noted that the agency has broad discretion to determine species' status in light of the five statutory listing requirements of ESA section 4.Id.at 28.

Although Congress did not seek to make any single factor controlling whendrawing the distinction, Congress included a “temporal element to the distinction between the categories.”In Re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation,794 F. Supp. 2d 65, 85 n.24, 89 & n.27 (D.D.C. 2011). Accordingly, in the context of the ESA, we interpret an “endangered species” to be one that is presently at risk of extinction. A “threatened species,” on the other hand, is not currently at risk of extinction, but is likely to become so. In other words, a key statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either now (endangered) or in the foreseeable future (threatened).

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 (Chiverset al.,2010; Martienet al.,2011); they are genetically isolated from the pelagic and the NWHI population; and because individual false killer whales are usually near their group and in close association with one another. Moreover, the DPS historically has faced or currently/in the future faces 29 potential threats, 15 of which are significant and 2 of which are most significant (including small population effects, and hooking, entanglement, and acts of prohibited take by fishers).

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 (Olesonet al.,2010). This population level would result in functional extinction beyond the point where recovery is possible. Accordingly, we have determined that this DPS warrants listing as an endangered species under the ESA because it is currently in danger of becoming extinct within three generations.

Comment 4:One commenter questioned the use of the best available scientific and commercial data, stating that the proposed listing of the Hawaiian insular false killer whale is based, in large part, on “uncertain or inconclusive” information. The commenter noted that available information regarding stock structure, range, and abundance of Hawaiian insular false killer whales is significantly limited, contains substantial data gaps, and is low in confidence and high in uncertainty.

Response:Listing decisions under ESA section 4 are to be made utilizing the best scientific and commercial data available (16 U.S.C. 1533(b)(1)(A)). This standard ensures that the agency will not disregard available scientific evidence that is in some way better than the information it relies upon. However, scientific uncertainty is present in nearly every listing decision, and NMFS is not foreclosed from making a decision that is based on, in whole or in part, incomplete or imperfect scientific information.

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 (Olesonet al.,2012). The best available data shows that the DPS is presently in danger of extinction because of meeting four of the five ESA section 4(a)(1)(b) factors, including significant demographic risks as explained in our Response to Comments 3 and 9. As such, we find that the DPS warrants listing as endangered.

Status of the Main Hawaiian Islands Insular False Killer Whale DPS

Comment 5:The State of Hawaii was concerned about the profound effects to state programs from listing the Hawaiian insular false killer whale DPS as an endangered species.

Response:We acknowledge that listing the Hawaiian insular false killer whale DPS as an endangered species could potentially affect State of Hawaii programs, and we would work with the State to minimize associated impacts.

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 oftheir effort, gear, target species, and likelihood of impacts to protected species. Through the cooperative agreement, the State is developing a pilot take reporting and monitoring system, and assessing current and future regulatory and non-regulatory alternatives for fishery take reduction and monitoring. The State, in coordination with the NMFS Pacific Island Regional Office and NMFS Pacific Islands Fisheries Science Center, also provides education and outreach to Hawaii's fishermen on protected species, including communication with sport and commercial fishing organizations and clubs, as well as environmental groups. Through listing the MHI insular false killer whale under the ESA there is the potential to expand the scope of Hawaii's ESA section 6 cooperative agreement to include this species.

We will continue to work with the State of Hawaii and other partners to assess and address marine mammal interactions in state-managed fisheries.

Comment 6:One commenter asserted that as the science continues to develop, it is becoming more apparent that insular and pelagic false killer whales overlap and intermingle throughout a significant portion of their range. Thus, the best available evidence is too uncertain to designate the insular population as a DPS.

Response:NMFS disagrees that the data are too uncertain to designate the MHI insular population as a DPS. NMFS does acknowledge, however, that recent satellite-telemetry studies, and as stated in the draft 2012 SAR (Carrettaet al.,2012b), the insular and pelagic populations of false killer whales do overlap in their geographic range from 40 km to 140 km off the Main Hawaiian Islands. Additionally, the draft 2012 SAR (Carrettaet al.,2012b) identifies a new island-associated population of false killer whales that inhabits the NWHI, and photo-identification and satellite tagging results suggest that false killer whales from the NWHI population geographically overlap with MHI insular false killer whales near Kauai (Bairdet al.,2012; Carrettaet al.,2012b). Despite the geographic overlap, significant differences in the populations exist as described in the DPS reevaluation discussed above and in Olesonet al.(2012). Therefore, although insular and pelagic populations may geographically “intermingle” with one another (as well as with the NWHI population), the assertion that insular and pelagic false killer whales genetically “intermingle” is not supported (nor do they genetically “intermingle” with NWHI false killer whales), and this is further discussed in response to Comment 7 (below).

Comment 7:Similar to Comment 2 made by the peer reviewer, one public commenter asserted that nDNA purportedly supporting discreteness is not consistent with Chiverset al.(2010), stating that while the authors found that limited mtDNA samples provided some suggestion of discreteness, the nDNA data does not suggest discreteness.

Response:NMFS disagrees with the commenter's characterization of the Chiverset al.(2010) data. Chiverset al.(2010) (and also Chiverset al.,2011) does show strong differentiation in maternally-inherited mtDNA between the MHI insular and the other adjacent NWHI and pelagic populations. This indicates there is little, if any, emigration of females between these populations. Additionally, Chiverset al.(2011) found that there are significant differences in nDNA between the MHI insular and the other populations, indicating there is little male-mediated gene flow (either emigrating or mating), from any other population including island-associated NWHI animals. The MHI population is as different from the NWHI population as it is from the other more distant strata (supported by both F-st and Structure results). These data are consistent with the notion of two insular Hawaiian populations that now have little gene flow and that represent a mtDNA lineage that has been separated from all other false killer whale populations for a substantial period of time (Olesonet al.,2012).

Threats to the Main Hawaiian Islands Insular False Killer Whale DPS

Comment 8:One commenter included five recommendations for protecting Hawaiian insular false killer whales from fisheries interactions: 100 percent observer coverage in the Hawaii-based longline fisheries; the required use of circle or weak hooks; prohibiting longline fishing within the entire range of the Hawaiian insular population of false killer whales; establishing a false killer whale sightings reporting system; and addressing potential impacts of inshore fisheries through the False Killer Whale Take Reduction Team (FKWTRT).

Response:This action concerns the listing decision for the MHI insular false killer whale under the ESA; the development of conservation and management measures for protecting the DPS from fisheries interactions is beyond the scope of this rulemaking. However, NMFS is finalizing a take reduction plan to reduce commercial fishery impacts on Hawaii's pelagic and MHI insular whales. The public may access a copy of the proposed plan and proposed implementing regulations from our Web site (seeFOR FURTHER INFORMATION CONTACT). We will also prepare a recovery plan for the species after the species is listed.

Comment 9:One commenter felt that while it is difficult to address threats posed by reduced genetic diversity or the as yet unquantified impacts from climate change, the degree to which these threaten the DPS should be further studied.

Response:The ongoing and potentially changing nature of pervasive threats, in particular, effects from climate change, potential limits on prey availability, and reduced genetic diversity, certainly need to be further studied especially given uncertain future ocean conditions. These and other risks are unlikely to decline (and are likely to increase in the future). And while the population may not be naturally large compared to other cetaceans, the population has decreased, and thus the intensity of the threats is increased by the small number of animals currently in the population. The combination of factors responsible for past population declines are uncertain, may continue to persist, and could worsen before conservation actions are successful, which could potentially preclude a substantial population increase. In sum, we concur that all threats should continue to be further studied.

Comment 10:One commenter felt that a biased interpretation of prey abundance and competition based on fishery-dependent catch-per-unit-effort (CPUE) data resulted in exaggerated threats. The commenter felt that alternative explanations of changes in CPUE and prey size were not considered or analyzed by NMFS.

Response:This commenter's suggested alternative explanations of CPUE changes (e.g., altered handline targeting) are not supported by any existing analysis or publications, and are speculative. All information and interpretation of Hawaii pelagic fish abundance come from CPUE data and commercial fish catch size data. No independent analysis of biomass is possible, given the data currently available, except the more thorough stock-wide assessments that include Hawaii fish. Stock-wide assessments also use semi-independent tagging data, and evaluate alternative analyses of CPUE changes with various CPUE standardizations, all suggesting reduced population biomass. The level of risk is assigned based on credibility, with acknowledged high uncertainty. We therefore disagree that the interpretationof prey abundance and competition based on use of CPUE metrics is exaggerated.

Comment 11:Several commenters asserted that the proposed rule unjustifiably assigns the commercial longline fishery as having a higher risk to insular false killer whales, compared to the risk assigned to it in the status review report completed by the BRT. Another commenter stated there is an incorrect assessment of alleged interactions between commercial longline fisheries and insular false killer whales, stating there is no evidence showing that commercial longline fisheries have ever had an interaction with an insular animal, despite high rates of observer coverage; that there has been only one documented interaction with a false killer whale that occurred in or near the geographic range identified for the insular stock and that interaction was classified as non-serious; and that the interaction, for which no genetic sample was obtained, likely involved a pelagic animal since the best available science does not reasonably support the conclusion that the interaction involved an insular population animal. Finally, this commenter stated that NMFS' attribution of that interaction to the insular stock directly contradicts a statement (from what we assume is from the status review report, although the exact quote is not in the status review report) that “false killer whale bycatch or sightings by observers aboard fishing vessels cannot be attributed to the insular population when no identification photographs or genetic samples are obtained.”

Response:NMFS disagrees that only one interaction has occurred and that it is outside the insular population boundary. In the shallow-set fishery between 2000 and 2011, there were no interactions with false killer whales or “blackfish” in the insular-pelagic overlap zone. However, in the deep-set longline fishery between 2000 and 2011 there were three observed interactions with false killer whales within the insular-pelagic stock overlap zone (two serious injuries in 2003, and one non-serious injury in 2006). There have also been three observed interactions within the overlap zone with unidentified “blackfish” (serious injuries in 2003 and 2006, and one in 2005 where injury severity could not be determined (McCracken, 2010a; 2010b; 2011; Forney, 2010; 2011; NMFS, unpublished data). Blackfish interactions are now prorated to species and counted in mortality and serious injury estimates for false killer whales and pilot whales in the draft 2012 SAR (Carrettaet al.,2012b). Based on these data, the most recent estimate of total annual interactions with the MHI insular population between 2006 and 2010 is estimated at 0.50 animals per year (Carrettaet al.,2012b).

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, Carrettaet al.,2012b). The M&SI estimates are based on proration of interactions to the stock within the overlap zone where both insular and pelagic stocks are known to exist, as well as proration of “blackfish” interactions to false killer whales and pilot whales. (Please refer to the response to Comment 8 for information on the distribution of the populations within the overlap zone, which discusses how the populations are not uniformly distributed within the overlap zone but show a gradient.) Proration is an accepted method for assigning mortality and serious injury to a species and stock (NMFS, 2005) and reflects the best information available to us on the rate of interaction between the MHI insular stock and the deep-set longline fishery.

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 (Carrettaet al.,2012b). The estimated rate of interaction from longline fisheries alone exceeds PBR, and this stock is considered “strategic” under the MMPA. Refer to responses to Comments 14 and 15 for more information on PBR.

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.

Comment 12:One commenter asserted that direct and indirect inferences of commercial longline fishery interactions with the insular population are not supported. According to the commenter, each of the following statements is speculative and lacks factual support: “a few interactions closer to the Main Hawaiian Islands may have involved insular animals”; “historically more frequent interactions may have occurred”; with reference to the longline exclusion zone, “decline of the insular DPS has still occurred”; and “the greatest threats to the insular population are small population effects and hooking, entanglement, or intentional harm by fishermen.”

Response:The statement “a few interactions closer to the Main Hawaiian Islands may have involved insular animals” is factually correct. Based on the objective application of criteria in the draft 2012 SAR (Carrettaet al.,2012b), meaning specifically using the location of an interaction to prorate the probability of the interaction with an insular animal within the overlap zone, we conclude that interactions are occurring with MHI insular false killer whales within the insular-pelagic overlap zone based on the geographic range of the population. Refer to response to Comment 11 for more information on interactions between the deep-set longline fishery and insular animals.

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.

Comment 13:One commenter stated that the draft FKWTRP submitted to NMFS by the FKWTRT in July 2010 includes the extension of the longline exclusion zone to essentially the full range of the insular stock. The commenter concluded that this measure effectively eliminates any risk that the deep and shallow-set longline fisheries may pose to the insular population and, therefore, the fisheries operating pursuant to this draft FKWTRP would not affect, or are not likely to adversely affect, insulars and, thus, the proposed rule directly contradicts this with no reasonable explanation.

Response:NMFS disagrees that the draft FKWTRP eliminates all risk that fisheries may pose to the insular population. It is correct that the FKWTRT noted in their consensus recommendations to NMFS (draft FKWTRP) that an extension of the existing longline exclusion zone (i.e., prohibiting longline fishing year-round in the area where it was previously closed only seasonally) would “effectively eliminate any risk the deep and shallow-set longline fisheries may pose to the insular stock of false killer whales.” It is important to note, however, that this was the FKWTRT's statement and not necessarily the position of the Agency.

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 km2or 15,742 nm2). Even if the SEZ were also closed, 15 percent of the overlap zone would still remain open to longline fishing. Accordingly, even though the FKWTRP is intended to increase protections for MHI insular false killer whales from interactions with longline fishing, this regulatory measure would not eliminate all risks from commercial longline fishing.

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.

Comment 14:One commenter felt that with respect to longline commercial fishery interactions, the best available science and information does not support a conclusion other than commercial longline fisheries do not po