[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Proposed Rules]
[Pages 70169-70187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28843]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 0912161432-0453-02]
RIN 0648-XT37
Endangered and Threatened Wildlife and Plants: Proposed
Endangered Status for the Hawaiian Insular False Killer Whale Distinct
Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the NMFS, have completed a comprehensive status review of
the Hawaiian insular false killer whale (Pseudorca crassidens) under
the Endangered Species Act (ESA) in response to a petition submitted by
the Natural Resources Defense Council (NRDC) to list the Hawaiian
insular false killer whale as an endangered species. After reviewing
the best scientific and commercial information available, we have
determined that the Hawaiian insular false killer whale is a distinct
population segment (DPS) that qualifies as a species under the ESA.
Moreover, after evaluating threats facing the species, and considering
efforts being made to protect the Hawaiian insular DPS, we have
determined that the DPS is declining and is in danger of extinction
throughout its range. We propose to list it as endangered under the
ESA. Although we are not proposing to designate critical habitat at
this time, we are soliciting information to inform the development of
the final listing rule and designation of critical habitat in the event
the DPS is listed.
DATES: Comments on this proposal must be received by February 15, 2011.
A public hearing will be held on Oahu, Hawaii, on Thursday, January 20,
2011, 6:30 p.m. to 9 p.m., at the McCoy Pavilion at Ala Moana Park,
1201 Ala Moana Blvd., Honolulu, HI 96814. NMFS will consider requests
for additional public hearings if any person so requests by January 31,
2011. Notice of the location and time of any such additional hearing
will be published in the Federal Register not less than 15 days before
the hearing is held.
ADDRESSES: You may submit comments identified by 0648-XT37 by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Mail or hand-delivery: Submit written comments to
Regulatory Branch Chief, Protected Resources Division, National Marine
Fisheries Service, Pacific Islands Regional Office, 1601 Kapiolani
Blvd., Suite 1110, Honolulu, HI 96814, Attn: Hawaiian insular false
killer whale proposed listing.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. Comments will be posted for public viewing after the comment
period has closed. All Personal Identifying Information (for example,
name, address, etc.) voluntarily submitted by the commenter may be
publicly accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information. We will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. The
petition, status review report, and other reference materials regarding
this determination can be obtained via the NMFS Pacific Islands
Regional Office Web site: http://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html or by submitting a request to the Regulatory Branch
Chief, Protected Resources Division, National Marine Fisheries Service,
Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite 1110,
Honolulu, HI 96814, Attn: Hawaiian insular false killer whale proposed
listing.
FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS, Pacific Islands
Regional Office, 808-944-2238; Lance Smith, NMFS, Pacific Islands
Regional Office, 808-944-2258; or Dwayne Meadows, NMFS, Office of
Protected Resources, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
On October 1, 2009, we received a petition from the NRDC 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. According to the draft 2010 Stock Assessment
Report (SAR) (Carretta et al., 2010) (available at http://www.nmfs.noaa.gov/pr/pdfs/sars/ sars/) that we have completed as required by
the Marine Mammal Protection Act (MMPA), false killer whales within the
United States (U.S.) Exclusive Economic Zone (EEZ) around the Hawaiian
Islands are divided into a Hawaii pelagic stock and a Hawaii insular
stock. The petition considers the insular population of Hawaiian false
killer whales and the Hawaii insular stock of false killer whales to be
synonymous. 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 Hawaiian insular false killer whale
warranted listing under the Endangered Species Act of 1973 (ESA) (75 FR
316).
ESA Statutory Provisions
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 U.S. Fish and Wildlife Service (FWS) and NMFS have adopted a joint
policy describing what
[[Page 70170]]
constitutes a DPS of a taxonomic species (61 FR 4722). 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
historic range; and (4) evidence that the discrete population segment
differs markedly from other populations of the species in its genetic
characteristics.''
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: (1) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (2) overexploitation for commercial, recreational, scientific,
or educational purposes; (3) disease or predation; (4) the inadequacy
of existing regulatory mechanisms; or (5) other natural or manmade
factors affecting its continued existence (16 U.S.C. 1533). 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.
When evaluating conservation efforts not yet implemented or
implemented for only a short period of time to determine whether they
are likely to negate the need to list the species, we use the criteria
outlined in the joint NMFS and FWS Policy for Evaluating Conservation
Efforts When Making Listing Decisions (PECE policy; 68 FR 15100).
Status Review and Approach of the BRT
To conduct the comprehensive status review of the Hawaiian insular
population of the false killer whale, we formed a Biological Review
Team (BRT) comprised of eight federal scientists from our Northwest,
Southwest, Alaska, and Pacific Islands Fisheries Science Centers. We
asked the BRT to review the best available scientific and commercial
information to determine whether the Hawaiian insular false killer
whale warrants delineation into a DPS, using the criteria in the joint
DPS policy. We asked the BRT to then assess the level of extinction
risk facing the species at the DPS level, describing its confidence
that the DPS is at high risk, medium risk, or low risk of extinction.
The BRT defined the level of risk based on thresholds that have been
used to assess other marine mammal species, and consistent with the
criteria used by the International Union for the Conservation of Nature
(IUCN) Red List of Threatened Species (IUCN, 2001). In evaluating the
extinction risk, we asked the BRT to describe the threats facing the
species, according to the statutory factors listed under section
4(a)(1) of the ESA, and qualitatively assess the severity, geographic
scope, and level of certainty of each threat (Oleson et al., 2010).
In compiling the best available information, making a DPS
determination, and evaluating the status of the DPS, the BRT considered
a variety of scientific information from the literature, unpublished
documents, and direct communications with researchers working on false
killer whales, as well as technical information submitted to NMFS. The
BRT formally reviewed all information not previously peer-reviewed, and
only that information found to meet the standard of best available
science was considered further. Analyses conducted by individual BRT
members were subjected to independent peer review, as required by the
Office of Management and Budget Peer Review and Bulletin and under the
1994 joint NMFS/FWS peer review policy for ESA activities (59 FR
34270), prior to incorporation into the status review report.
The BRT acknowledged that considerable levels of uncertainty are
present for all aspects of the Hawaiian insular false killer whale's
biology, abundance, trends in abundance, and threats. Such
uncertainties are expected for an uncommon species that is primarily
found in the open ocean where research is expensive and knowledge is
consequently poor. The BRT decided to treat the uncertainty explicitly
by defining where it exists and using a point system to weigh various
plausible scenarios, taking into account all of the best available data
on false killer whales, but also considering information on other
similar toothed whales. The BRT's objectives in taking this approach
were to make the process of arriving at conclusions detailed in the
status review report as transparent as possible and to provide
assurance that the BRT was basing its conclusions on a common
understanding of the evidence. Details of this approach can be found in
Appendix A of the status review report.
The report of the BRT deliberations (Oleson et al., 2010)
(hereafter ``status review report'') thoroughly describes Hawaiian
false killer whale biology, ecology, and habitat, provides input on the
DPS determination, and assesses past, present, and future potential
risk factors, and overall extinction risk. The key background
information and findings of the status review report are summarized
below.
Biology and Life History of False Killer Whales
The following section presents biology and life history information
gathered from throughout the range of false killer whales. A later
section focuses on information specific to the Hawaiian insular false
killer whale.
Description
The false killer whale, Pseudorca crassidens (Owen, 1846) is a
member of the family Delphinidae, and no subspecies have been
identified. The species is a slender, large delphinid, with maximum
reported sizes of 610 cm for males (Leatherwood and Reeves, 1983) and
506 cm for females (Perrin and Reilly, 1984). Length at birth has been
reported to range from 160-190 cm, and length at sexual maturity is 334
through 427 cm in females and 396-457
[[Page 70171]]
cm in males (Stacey et al., 1994; Odell and McClune, 1999). Estimated
age at sexual maturity is about 8 to 11 years for females, while males
may mature 8 to 10 years later (Kasuya, 1986). The maximum reported age
has been estimated as 63 years for females and 58 years for males
(Kasuya, 1986), with females becoming reproductively senescent at about
age 44 (Ferreira, 2008). Both sexes grow 40 to 50 percent in body
length during their first year of life, but males subsequently grow
faster than females. Growth ceases between 20 and 30 years of age, and
there is evidence of geographic variation in final asymptotic body
size. Off the coast of Japan, asymptotic length is 46 cm (females) and
56 cm (males) longer than off the coast of South Africa (Ferreira,
2008). Large individuals may weigh up to 1,400 kg. Coloration of the
entire body is black or dark gray, although lighter areas may occur
ventrally between the flippers or on the sides of the head. A
prominent, falcate dorsal fin is located at about the midpoint of the
back, and the tip can be pointed or rounded. The head lacks a distinct
beak, and the melon tapers gradually from the area of the blowhole to a
rounded tip. In males, the melon extends slightly further forward than
in females. The pectoral fins have a unique shape among the cetaceans,
with a distinct central hump creating an S-shaped leading edge.
Global Distribution and Density
False killer whales are found in all tropical and warm-temperate
oceans, generally in deep offshore waters, but also in some shallower
semi-enclosed seas and gulfs (e.g., Sea of Japan, Yellow Sea, Persian
Gulf), and near oceanic islands (e.g., Hawaii, Johnston Atoll,
Galapagos, Guadeloupe, Martinique) (Leatherwood et al., 1989).
Sightings have also been reported as ``common'' in Brazilian shelf
waters (IWC, 2007) where animals could be seen from shore from Rio de
Janeiro feeding in an upwelling zone that concentrates prey. There are
occasional records in both the northern and southern hemispheres of
animals at latitudes as high as about 50 degrees (Stacey and Baird,
1991; Stacey et al., 1994). In the western Pacific off the coast of
Japan, false killer whales appear to move north-south seasonally,
presumably related to prey distribution (Kasuya, 1971), but seasonal
movements have not been documented elsewhere. Densities in the central
and eastern Pacific range from 0.02 to 0.38 animals per 100 km\2\ (Wade
and Gerrodette, 1993; Mobley et al., 2000; Ferguson and Barlow, 2003;
Carretta et al., 2007), with the lowest densities reported for waters
north of about 15 degrees north off Baja California, Mexico, and within
the U.S. EEZ around Hawaii, and highest densities reported in waters
surrounding Palmyra Atoll. Unlike other species that can be found both
along continental margins and in offshore pelagic waters (e.g.,
bottlenose dolphins (Tursiops truncatus)), false killer whale densities
generally do not appear to increase closer to coastlines.
Although false killer whales are found globally, genetic,
morphometric, and life history differences indicate there are distinct
regional populations (Kitchener et al., 1990; Mobley et al., 2000;
Chivers et al., 2007; Ferreira, 2008). Within waters of the central
Pacific, four Pacific Islands Region management stocks of false killer
whales are currently recognized for management under the U.S. MMPA: The
Hawaii insular stock, the Hawaii pelagic stock, the Palmyra Atoll
stock, and the American Samoa stock (Carretta et al., 2010).
Life History
False killer whales are long-lived social odontocetes. Much of what
is known about their life history comes either from examination of dead
animals originating from drive fisheries in Japan (Kasuya and Marsh,
1984; Kasuya, 1986) or strandings (Purves and Pilleri, 1978; Ferreira,
2008). The social system has been described as matrilineal (Ferreira,
2008). However, this is not consistent with two known characteristics
of false killer whales: Males leave their natal group when they begin
to become sexually mature; and research showing females within a single
group have different haplotypes, indicating that even among females,
groups are composed of more than near-relatives (Chivers et al., 2010).
Ferreira (2008) suggested the mating system may be polygynous based on
the large testes size of males, but actual understanding of the mating
system remains poor.
The only reported data on birth interval, 6.9 years between calves,
is from Japan (Kasuya, 1986). However, annual pregnancy rates were
reported for Japan as 11.4 percent and 2.2 percent for South Africa
(Ferreira, 2008). A rough interbirth interval can be calculated by
taking the inverse of the annual pregnancy rate, which yields intervals
of 8.8 and 45 years for Japan and South Africa, respectively. A single
stranding group where 1 out of 37 adult females was pregnant was the
source of the South African data, which may not be a representative
sample and could be insufficient to estimate pregnancy rates in that
population.
Comparisons of the life history parameters inferred from the
Japanese drive fishery samples and the South African stranding sample
indicated that the whales in Japan attained a larger asymptotic body
size and grew faster. Also, a suite of characteristics of the whales in
Japan indicated a higher reproductive rate: The ratio of reproductive
to post-reproductive females was higher and the pregnancy rate was
higher than in South Africa. Possible reasons given by Ferreira (2008)
for the apparently higher reproductive rate in Japan are: The Japan
whales are exhibiting a density-dependent response to population
reduction as a result of exploitation; the colder waters near Japan are
more productive; or differences in food quality. The estimated
reproductive rates in both Japan and South Africa are low compared to
those of other delphinids and especially to the two species with the
most similar life history: Short-finned pilot whales (Globicephala
macrorhynchus), and Southern Resident killer whales (Orcinus orca)
(Olesiuk et al., 1990).
Little is known about the breeding behavior of false killer whales
in the wild, but some information is available from false killer whales
held in oceanaria (Brown et al., 1966). Gestation has been estimated to
last 11 to 16 months, (Kasuya, 1986; Odell and McClune, 1999). Females
with calves lactate for 18 to 24 months (Perrin and Reilly, 1984). In
captive settings, false killer whales have mated with other delphinids,
including short-finned pilot whales and bottlenose dolphins. Bottlenose
dolphins in captivity have produced viable offspring with false killer
whales (Odell and McClune, 1999).
Reproductive senescence is quite rare in cetaceans but has been
documented in false killer whales and other social odontocetes. The two
primary reasons given for reproductive senescence are increasing
survival of offspring as a result of care given by multiple females of
multiple generations (grandmothering), and transmission of learning
across generations allowing survival in lean periods by remembering
alternative feeding areas or strategies (McAuliffe and Whitehead, 2005;
Ferreira, 2008).
Wade and Reeves (2010) argue that odontocetes have delayed recovery
as compared to mysticetes when numbers are reduced because of the
combination of their life history, which results in exceptionally low
maximum population growth rates, and the potential for social
disruption. Particularly if older females are lost, it may take decades
to rebuild the knowledge required to achieve maximum population growth
rates.
[[Page 70172]]
Wade and Reeves (2010) give numerous examples, both from cetaceans
(beluga whales (Delphinapterus leucas), killer whales, and sperm whales
(Physeter macrocephalus) are particularly pertinent) and elephants,
which are similarly long-lived social animals with reproductive
senescence.
Feeding Ecology
False killer whales are top predators, eating primarily fish and
squid, but also occasionally taking marine mammals (see references in
Oleson et al., 2010). These conclusions are based on relatively limited
data from various parts of the species' range.The large, widely spread
groups in which false killer whales typically occur (Baird et al.,
2008a; Baird et al., 2010) and their patchily distributed prey suggest
that this species forages cooperatively. Further evidence for the
social nature of false killer whale foraging is the observation of prey
sharing among individuals in the group (Connor and Norris, 1982; Baird
et al., 2008a). False killer whales feed both during the day and at
night (Evans and Awbrey, 1986; Baird et al., 2008a).
Diving Behavior
Limited information is available on the diving behavior of false
killer whales. Maximum dive depth was estimated at 500 m (Cummings and
Fish, 1971). Time depth recorders have been deployed on four false
killer whales (R. Baird, pers. comm., Cascadia Research Collective)
totaling approximately 44 hours. The deepest dive recorded during a 22-
hour deployment was estimated to have been as deep as 700 m (estimate
based on duration past the recorder's 234 m limit and ascent and
descent rates). However, only 7 dives were to depths greater than 150
m, all of them accomplished in the daytime. Nighttime dives were all
shallow (30-40 m maximum), but relatively lengthy (approximately 6-7
minutes).
Indirect evidence of dive depths by false killer whales can be
inferred from prey. Mahimahi has been noted as a prominent prey item
(Baird, 2009). Based on the catch rates of longlines instrumented with
depth sensors and capture timers (Boggs, 1992) in the daytime, mahimahi
are caught closer to the surface than other longline-caught fish,
primarily in the upper 100 m. Other prey species, such as bigeye tuna,
typically occur much deeper, from the surface down to at least 400 m
(Boggs, 1992). The deepest dives by the instrumented false killer
whales approach the daytime swimming depth limit of swordfish (Xiphias
gladius), a prey item, near 700 m (Carey and Robinson, 1981).
Social Behavior
There is quite a bit of variance in estimates of group size of
false killer whales. At least some of the variability stems from
estimation methods and time spent making the group size estimate. Most
group sizes estimated from boats or planes vary from 1 to over 50
animals with an average from 20 to 30, and group size estimates
increase with encounter duration up to 2 hours (Baird et al., 2008a).
Group size tends to increase with encounter duration because the
species often occurs in small subgroups that are spread over tens of
square miles. It is possible that the groups seen on typical boat or
plane surveys are only part of a larger group spread over many miles
(see e.g., Baird et al., 2010) that are in acoustic contact with one
another. These widespread aggregations of small groups can total
hundreds of individuals (Wade and Gerrodette, 1993; Carretta et al.,
2007; Baird, 2009; Reeves et al., 2009). Mass strandings of large
groups of false killer whales (range 50-835; mean = 180) have been
documented in many regions, including New Zealand, Australia, South
Africa, the eastern and western North Atlantic, and Argentina (Ross,
1984). Groups of 2-201 individuals (mean = 99) have also been driven
ashore in Japanese drive fisheries (Kasuya, 1986). The social
organization of smaller groups has been studied most extensively near
the main Hawaiian Islands (Baird et al., 2008a), where individuals are
known to form strong long-term bonds. False killer whales are also
known to associate with other cetacean species, especially bottlenose
dolphins (Leatherwood et al., 1988). Interestingly, records also show
false killer whales attacking other cetaceans, including sperm whales
and bottlenose dolphins (Palacios and Mate, 1996; Acevedo-Gutierrez et
al., 1997).
Biology and Life History of Hawaiian Insular False Killer Whales
Current Distribution
The boundaries of Hawaiian insular false killer whale distribution
have been assessed using ship and aerial survey sightings and location
data from satellite-linked telemetry tags. Satellite telemetry location
data from seven groups of individuals tagged off the islands of Hawaii
and Oahu indicate that the whales move widely and quickly among the
main Hawaiian Islands and use waters up to at least 112 km offshore
(Baird et al., 2010; Forney et al., 2010). Regular movement throughout
the main Hawaiian Islands was also documented by re-sightings of
photographically-identified individuals over several years (Baird et
al., 2005; Baird, 2009; Baird et al., 2010). Individuals use both
windward and leeward waters, moving from the windward to leeward side
and back within a day (Baird, 2009; Baird et al., 2010; Forney et al.,
2010). Some individual false killer whales tagged off the Island of
Hawaii have remained around that island for extended periods (days to
weeks), but individuals from all tagged groups eventually ranged widely
throughout the main Hawaiian Islands, including movements to the west
of Kauai and Niihau (Baird, 2009; Forney et al., 2010). Based on
locations obtained from 20 satellite-tagged insular false killer
whales, the minimum convex polygon range for the insular population was
estimated to encompass 77,600 km\2\ (M.B. Hanson, unpublished data).
The greatest offshore movements occurred on the leeward sides of
the islands, although on average, similar water depths and habitat were
utilized on both the windward and leeward sides of all islands (Baird
et al., 2010). Individuals utilize habitat overlaying a broad range of
water depths, varying from shallow (<50 m) to very deep (>4,000 m)
(Baird et al., 2010). Tagged insular false killer whales have often
demonstrated short- to medium-term residence in individual island areas
before ranging widely among islands and adopting another short-term
residency pattern. It is likely that movement and residency patterns of
the whales vary over time depending on the density and movement
patterns of their prey species (Baird, 2009).
A genetically distinct population of pelagic false killer whales
occurs off Hawaii (Chivers et al., 2007). Hawaiian insular false killer
whales share a portion of their range with the genetically distinct
pelagic population (Forney et al., 2010). Satellite telemetry locations
from a single tagged individual from the pelagic population, as well as
shipboard and small boat survey sightings, suggest that the ranges of
the two populations overlap in the area between 42 km and 112 km from
shore (Baird et al., 2010; Forney et al., 2010). Based on this
evidence, it is clear that the region from about 40 km to at least 112
km from the main Hawaiian Islands is an overlap zone, in which both
insular and pelagic false killer whales can be found. However, a small
sample size of satellite-tracked individuals creates some uncertainty
in these boundaries. In particular, the offshore boundary of the
insular stock is
[[Page 70173]]
likely to be farther than 112 km because their documented offshore
extent has increased as sample sizes of satellite-tracked individuals
have increased. It is likely that additional deployments in the future
will continue to result in greater maximum documented distances for
insular false killer whales. Thus, an additional geographic ``buffer''
beyond the present maximum distance of 112 km has been recognized out
to 140 km. Moreover, 140 km is approximately 75 nmi which follows the
original boundary recommendation of Chivers et al. (2008). Therefore,
the draft 2010 SAR for false killer whales recognizes an overlap zone
between insular and pelagic false killer whales between 40 km and 140
km from the main Hawaiian Islands based on sighting, telemetry, and
genetic data (based on justification in Forney et al., 2010; Carretta
et al., 2010). We recognize that boundary for this status review as
well.
Life History
There is no information available to assess whether the life
history of Hawaiian insular false killer whales differs markedly from
other false killer whale populations. However, there is also no
evidence to show they are similar. As discussed earlier, false killer
whales in Japan were larger and had a higher reproductive output than
those in South Africa, and these differences were attributed to one or
more of the following: colder more productive waters, response to
exploitation, and different food in the two regions (Ferreira, 2008).
It remains uncertain whether Hawaiian insular false killer whales are
more like those from Japan or those from South Africa.
Social Structure
Molecular genetic results support the separation of Hawaiian
insular false killer whales from the more broadly distributed Hawaiian
pelagic false killer whales (Chivers et al., 2007; 2010). Matches from
photo-identification of individuals in groups of insular false killer
whales also suggests functional isolation of the insular population
from the overlapping pelagic population of false killer whales (Baird
et al., 2008a). Based on 553 identifications available as of July 2009,
with the exception of observations of four small groups (two observed
near Kauai and two off the Island of Hawaii), all false killer whales
observed within 40 km of the main Hawaiian Islands link to each other
through a single large social network that makes up the insular
population. A large group of 19 identified individuals of the pelagic
population (or presumed to be) seen 42 km from shore and
identifications from a number of other sightings of smaller groups do
not link into the social network (Baird, 2009).
The social cohesion of insular false killer whales is likely
important to maintaining high fecundity and survival as it is in other
highly social animals. Although some aspects of the behavior and
``culture'' of Hawaiian insular false killer whales have been
investigated or discussed, the mechanisms by which they might influence
population growth rates are not well understood. The situation of this
population could be analogous to those of other populations of large
mammals in which females live well beyond their reproductive life spans
(e.g., elephants, higher primates, and some other toothed cetaceans
such as pilot whales) (McComb et al., 2001; Lahdenpera et al., 2004).
The loss of only a few key individuals--such as the older, post-
reproductive females--could result in a significant loss of inclusive
fitness conveyed by ``grandmothering'' behavior (i.e., assistance in
care of the young of other females in the pod). In addition, cultural
knowledge (e.g., how to cope with environmental changes occurring on
decadal scales) could be lost, leading to reduced survival or fecundity
of some or all age classes. Wade and Reeves (2010) document the special
vulnerability of social odontocetes giving examples of killer whales,
belugas, sperm whales, and dolphins in the eastern tropical Pacific.
Historical Population Size
Historical population size is unknown. BRT members used density
estimates from other areas together with the range inferred from
telemetry data (see above) to suggest plausible ranges for historical
abundance. Using the estimated density of false killer whales around
the Palmyra Atoll EEZ, 0.38 animals/100 km\2\, where the highest
density of this species has been reported (Barlow and Rankin, 2007),
and extrapolating that density out to the 202,000 km\2\ area within 140
km of the main Hawaiian Islands (proposed as a stock boundary for
Hawaiian insular false killer whales in the draft 2010 SAR), a point-
estimate, or a plausible historical abundance, for the insular
population is around 769. Alternatively, using one standard deviation
above the point-estimate of the density around Palmyra Atoll to account
for uncertainty in that density estimate, the upper limit of the
abundance of Hawaiian insular false killer whales could have reached
1,392 animals. The BRT placed the lower limit of plausible population
size in 1989 at 470 based on the estimated number of animals observed
in the 1989 aerial surveys (see above).
There are several important caveats. Even though Palmyra has a
density that is high relative to other areas, it is unlikely that this
represented a pristine population during the 2005 survey on which the
estimate is based. Given the depredation tendencies of false killer
whales, known long-lining in the Palmyra area, and the fact that false
killer whales are known to become seriously injured or die as a result
of interactions with longlines, the possibility that current densities
are lower than historical densities cannot be discounted. Although
Palmyra is situated in more productive waters than the Hawaiian
Islands, we do not understand enough about the feeding ecology,
behavior, and social system(s) of false killer whales to know how or
whether productivity might be related to animal density for false
killer whales. This caveat is true for all other areas where population
density estimates exist for false killer whales. Therefore, we used and
view data from Palmyra as a conservative estimate of pristine density.
Current Abundance
The draft 2010 SAR for Hawaiian insular false killer whales
(Carretta et al., 2010) gives the best estimate of current population
size as 123 individuals (coefficient of variation, or CV = 0.72),
citing Baird et al. (2005). Recent reanalysis of photographic data has
yielded two new estimates of population size for the 2006-2009 period.
Two estimates are presented because two groups photographed near Kauai
have not yet been observed to associate into the social network of
false killer whales seen at the other islands. These animals may come
from the pelagic population, may come from another undocumented
population in the Northwestern Hawaiian Islands, or may represent a
portion of the insular population that has not been previously
documented photographically. The current best estimates of population
size for Hawaiian insular false killer whales are 151 individuals (CV =
0.20) without the animals photographed at Kauai, or 170 individuals (CV
= 0.21) with them. As a comparison, the Hawaiian pelagic population is
estimated to be 484 individuals (CV = 0.93) within the U.S. EEZ
surrounding Hawaii (Barlow and Rankin, 2007).
Although the absolute abundance of Hawaiian insular false killer
whales is small, the core-area (within 40 km) population density (0.12
animals/100 km\2\) is among the highest reported for this species. The
high density of the Hawaiian insular population suggests a unique
habitat capable of supporting a
[[Page 70174]]
larger population density than nearby oligotrophic waters.
Trends in Abundance
Aerial survey sightings since 1989 suggest that the Hawaiian
insular false killer whale population has declined over the last 2
decades. A survey was conducted in June and July 1989 on the leeward
sides of Hawaii, Lanai, and Oahu to determine the minimum population
size of false killer whales in Hawaiian waters. False killer whales
were observed on 14 occasions with 3 large groups (group sizes of 470,
460, and 380) reported close to shore off the Island of Hawaii on 3
different days (Reeves et al., 2009). As described in the Current
Abundance section, the current best estimates of population size for
Hawaiian insular false killer whales are 151 individuals without the
animals photographed at Kauai, or 170 with them. Therefore, the largest
group seen in 1989 is much larger than the current best estimate of the
size of the insular population. Although the animals seen during the
1989 surveys are assumed to come from the insular population based on
their sighting location within 55 km of the Island of Hawaii, it is
possible that they represent a short-term influx of pelagic animals to
waters closer to the islands. Moreover, because photographic or genetic
identification of individuals is often required to determine the
population identity of false killer whales in Hawaiian waters, we
cannot be absolutely certain that sightings from the 1989 or 1993 to
2003 aerial surveys came from the insular population. Similarly, 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. Nevertheless, because of
the location of the sightings and lack of evidence of pelagic animals
occurring that close to the islands, it is most likely that this group
did consist of insular animals.
With respect to trends in group size, the average group size during
the 1989 survey (195 animals) is larger than the typical average group
size for the insular population (25 animals for encounters longer than
2 hours) during more recent surveys (Baird et al., 2005). The 1989
average group size is also larger than the more recent average of that
observed for the pelagic population (12 animals) (Barlow and Rankin,
2007).
Five additional systematic aerial surveys were conducted between
1993 and 2003 covering both windward and leeward sides of all of the
main Hawaiian Islands, including channels between the islands, out to a
maximum distance of about 46 km from shore (Mobley et al., 2000;
Mobley, 2004). A regression of sighting rates from these surveys
suggests a significant decline in the population size (Baird, 2009).
The large groups sizes observed in 1989, together with the declining
encounter rates from 1993 through 2003 suggest that Hawaiian insular
false killer whales have declined substantially in recent decades.
It is possible that weather or other survey conditions are at least
partially responsible for the decline in sighting rates from 1993
through 2003; however, there was no downward trend in the sighting
rates for the four most commonly seen species of small cetaceans
(spinner dolphin (Stenella longirostris), bottlenose dolphin, spotted
dolphin (Stenella attenuata), and short-finned pilot whale). These four
species represent nearshore and pelagic habitat preferences and span a
range of body sizes from smaller to larger than false killer whales. It
can be inferred from this evidence that variability in sighting
conditions during the survey period did not have a major effect on
sighting rates and therefore the sighting rate for insular false killer
whales has, in fact, declined.
A number of additional lines of evidence, summarized in Baird
(2009), support a recent decline in Hawaiian insular false killer whale
population size. Individual researchers in Hawaii have noted a marked
decline in encounter rates since the 1980s and the relative encounter
rate of false killer whales during the 1989 aerial survey was much
higher than current encounter rates.
Population Structure
Chivers et al. (2007) delineated false killer whales around Hawaii
into two separate populations: Hawaiian insular and Hawaiian pelagic.
That work has recently been extended with new samples, the addition of
nuclear markers, and an analysis with a broader interpretation of the
data (Chivers et al., 2010). The new analysis examined mitochondrial
DNA (mtDNA) using sequences of 947 base pairs from the d-loop and
nuclear DNA (nDNA) using eight microsatellites. These additional
samples help confirm the delineation of these two populations.
Three stratifications of the mtDNA data examined genetic
differentiation at different spatial scales (Chivers et al., 2010). The
broad-scale stratification recognized three groups: Hawaiian insular,
central North Pacific, and eastern North Pacific. In the fine-scale
stratification, five strata were recognized: Hawaiian insular, Hawaiian
pelagic, Mexico, Panama, and American Samoa. The finest-scale
stratification recognized each of the main Hawaiian Islands as strata.
All but one Hawaiian insular false killer whale had one of two
closely related haplotypes that have not been found elsewhere. The
presence of two distinct, closely related haplotypes in Hawaiian
insular false killer whales is consistent with Hawaiian insular false
killer whales having little gene flow from other areas. This pattern
differs from those of Hawaiian stocks of bottlenose, spinner, and
spotted dolphins that all have evidence suggesting multiple successful
immigration events. The pattern of primarily closely related haplotypes
shown in Hawaiian insular false killer whales is consistent with a
strong social system or strong habitat specialization that makes
survival of immigrants or their offspring unlikely. One single
individual, a male, was found in among Hawaiian insular false killer
whales with a different haplotype. Although there is no photograph of
that male to connect it directly to Hawaiian insular false killer
whales, it was sampled within a group with such strong connections that
assignment tests could not exclude that it belongs to the insular
group. Given the low power of the current assignment test (with few
microsatellite markers), the possibility of immigration (permanent
membership with Hawaiian insular false killer whales but with an origin
outside the group) cannot be ruled out. Likewise, the possibility that
this individual was a temporary visitor (i.e., not a true immigrant)
from the pelagic population cannot be excluded. The rare haplotype is
sufficiently distantly related that it seems most plausible that this
resulted from a separate immigration event (i.e., that immigrants are
accepted on rare occasions).
The mtDNA data also show strong differentiation between Hawaiian
insular false killer whales (n = 81) and both broad-scale strata
(central North Pacific (n = 13) and eastern North Pacific (n = 39)) and
fine-scale strata (Hawaiian pelagic (n = 9), Mexico (n = 19), Panama (n
= 15), and American Samoa (n = 6)). Genetic divergence between the
Hawaiian insular false killer whales and other strata examined showed
magnitudes of differentiation that were all consistent with less than
one migrant per generation. No significant differences were found among
the main Hawaiian Islands with sufficient data for statistical analysis
(Hawaii, Oahu, and Maui).
Nuclear DNA results also showed highly significant differentiation
among
[[Page 70175]]
the broad and fine strata (Hawaiian insular (n = 69), central North
Pacific (n = 13), eastern North Pacific (n = 36), Hawaiian pelagic (n =
9), Mexico (n = 19), Panama (n = 12), and American Samoa (n = 6)). The
estimates of divergence between the Hawaiian insular strata and other
strata demonstrate that the magnitude of differentiation was less for
nDNA than for mtDNA, indicating the potential for some male-mediated
gene flow. Tests for differences between currently living males and
females in level of differentiation were not significant for either
mtDNA or nDNA. However, this test has no ability to detect differences
in male versus female gene flow in the past. Chivers et al. (2010) give
a number of hypotheses for the apparently different magnitude of
signals between mtDNA and nDNA: (1) There is a low level of male-
mediated gene flow that was not apparent because of insufficient
sampling of nearby groups of false killer whales and/or the test for
male-mediated gene flow can only detect first-generation male migrants;
(2) the magnitude of nDNA differentiation is underestimated because of
the high mutation rate of microsatellites; or (3) the magnitude of
differentiation is not inconsistent with cases where selection has been
shown to be strong enough for local adaptation.
The aforementioned uncertainties will best be resolved with
additional sampling of nearby pelagic waters. Although the sample
distribution is improved since the 2007 analysis, it remains poor in
pelagic areas. The only full-scale cetacean survey of Hawaiian pelagic
waters resulted in only two sightings of false killer whales in four
months of effort, and the weather was too poor to obtain any high-
quality identification photographs or biopsies (J. Barlow, pers. comm.,
NMFS SWFSC). Fisheries observers are trained to obtain identification
photographs and biopsy samples; however, conditions during
disentanglement usually result in photographs difficult to identify due
to darkness, and prevent successful biopsy.
The strongest data with which to evaluate population structure are
the mtDNA data. Approximately half of the population of Hawaiian
insular false killer whales has been sampled, and all but one
individual has one of two closely related haplotypes that have not been
found elsewhere.
Chivers et al. (2010) used the analytical method of Piry et al.
(1999) to test for evidence of a recent decline in abundance within the
Hawaiian insular population. The analysis takes advantage of the fact
that when the effective size of a population is reduced, the allelic
diversity of the population is reduced more rapidly than its
heterozygosity, resulting in an apparent excess of heterozygosity given
the number of alleles detected. Chivers et al. (2010) detected
statistically significant evidence of a recent decline in Hawaiian
insular false killer whales using this method, with all eight
microsatellite loci exhibiting heterozygosity excess.
The microsatellite data were also used to estimate the effective
population size of Hawaiian insular false killer whales as 46 (95
percent CI = 32-69). Because this population may have recently declined
and the animals are long-lived, many of those individuals still alive
likely were born prior to the decline. Thus, the estimate of effective
population size is likely too high. Nevertheless, domestic animals have
been shown to start displaying deleterious genetic effects (lethal or
semi-lethal traits) when effective population size reaches about 50
individuals (Franklin, 1980). While negative genetic effects cannot be
predicted for a group of individuals that are probably naturally
uncommon with a strong social structure that limits genetic diversity,
the current low effective population size is a concern.
DPS Determination
We have determined that Hawaiian insular false killer whales are
discrete from other false killer whales based on genetic discontinuity
and behavioral factors (the uniqueness of their behavior related to
habitat use patterns). We have also determined that Hawaiian insular
false killer whales are significant to the taxon, based on their unique
ecological setting, marked genetic characteristic differences, and
cultural factors.
Both mitochondrial DNA (mtDNA) and nuclear DNA (nDNA) provide
support for genetic discontinuity. As explained in the Population
Structure section of this proposed rule, genetic differentiation was
examined at different spatial scales. The mtDNA data show strong
differentiation between Hawaiian insular false killer whales and other
false killer whale groups at both broad-scale strata (central North
Pacific and eastern North Pacific) and fine-scale strata (Hawaiian
pelagic, Mexico, Panama, and American Samoa). The strongest DNA data
come from mtDNA. The Hawaiian insular false killer whales have
approximately half of the population sampled, and all but one
individual has one of the two closely related haplotypes that have not
been found elsewhere. The BRT concluded that this pattern alone argues
for a strong possibility of a high degree of separation. Nuclear DNA
(microsatellite) data are also consistent with little gene flow between
Hawaiian insular false killer whales and other false killer whales and
support discreteness. Nuclear DNA results showed highly significant
differentiation among the Hawaiian insular, North Pacific, eastern
North Pacific, Hawaiian pelagic, Mexico, Panama, and American Samoa
strata.
Hawaiian insular false killer whales are behaviorally unique
because they are the only population of the species known to have
movements restricted to the vicinity of an oceanic island group. This
behavioral separation is supported by their linkage through a tight
social network, without any linkages to animals outside of the Hawaiian
Islands. Phylogeographic analysis also indicates an isolated population
with nearly exclusive haplotypes, and telemetry data show that all 20
satellite-linked telemetry tagged Hawaiian insular false killer whales
remained within the main Hawaiian Islands (Baird et al., 2010; Baird et
al., unpublished data), in contrast with a single tagged pelagic false
killer whale, which ranged far from shore. Although it is not unusual
for false killer whales to be observed close to land, long-term history
of exclusive use of a specific mainland or island system has not been
documented elsewhere.
Hawaiian insular false killer whales are significant to the taxon
based on persistence in a unique ecological setting, marked genetic
characteristic differences, and cultural factors. Hawaiian insular
false killer whales persist in an ecological setting unusual or unique
from other false killer whale populations because they are found
primarily in island-associated waters that are relatively shallow and
productive compared to surrounding oligotrophic waters. The following
lines of evidence supporting this unique ecological setting include:
Utilization of prey associated with island habitat that may require
specialized knowledge of locations and seasonal conditions that
aggregate prey or make them more vulnerable to predation. In an insular
habitat, such foraging grounds may occur more regularly or in more
predictable locations than on the high seas. The contaminant levels
found in insular animals also suggest that both insular false killer
whales and their prey may be associated with the urban island
environment. And despite their small population size, the density
(animals per km\2\) of Hawaiian insular false killer whales is high
relative to other false killer whale populations, suggesting the
[[Page 70176]]
nearshore habitat or a unique habitat-use strategy may support a higher
density of animals, which may have implications for differences in
social structure and interactions within the population or with the
pelagic population. Additionally, movement and photographic resighting
data suggest Hawaiian insular false killer whales employ a unique
foraging strategy compared to other false killer whales.
Hawaiian insular false killer whales differ markedly from other
populations of the species in their genetic characteristics. Hawaiian
insular false killer whales exhibit strong phylogeographic patterns
that are consistent with local evolution of mitochondrial haplotypes.
Eighty of 81 individuals had one of two closely related haplotypes
found nowhere else. These haplotypes are a sequence of a non-coding
portion of the mtDNA and as such do not provide direct evidence for
selection. The BRT found that the magnitude of mtDNA differentiation is
large enough to infer that time has been sufficient and gene flow has
been low enough to allow adaptation to the local Hawaiian habitat. The
BRT noted that geneticists use one effective migrant per generation as
a rule of thumb for the level of gene flow below which adaptation to
local habitat is likely. Comparisons using mtDNA of the Hawaiian
insular animals to those in all other geographic strata indicate less
than one migrant per generation.
Finally, culture, or 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. The insular population
contributes to cultural diversity in the species, and this may provide
the capacity for different amounts of cultural capabilities such as the
ability of false killer whales to adapt to environmental change.
Evidence in support of the significance of cultural diversity includes:
Insular false killer whales may have unique knowledge of nearshore
foraging areas and foraging tactics that are transmitted through
learning. Learning is a common feature of other social odontocetes.
False killer whales are highly social mammals with long interbirth
intervals and reproductive senescence suggesting transfer of knowledge
is important to successfully persist in this unique Hawaiian habitat.
Learning to persist in this unique habitat, and knowing the intricacies
of localized prey distribution and prey movements, may take many
generations.
Overall, the combination of genetic and behavioral discreteness
coupled with ecological, genetic, and cultural significance led us to
conclude that Hawaiian insular false killer whales are a DPS. There was
some uncertainty in the genetic discontinuity factor of the
discreteness conclusion based primarily on the lack of information on
the adjacent population of pelagic false killer whales off the coast of
Hawaii, and due to gaps in genetic sampling to the west of Hawaii.
However, the BRT did not find this lack of information sufficient to
alter the significance finding for Hawaiian insular false killer
whales. We agree with the BRT's conclusion that the Hawaiian insular
population of the false killer whale is a DPS.
Extinction Risk Assessment
Evaluating Threats
The BRT qualitatively assessed potential individual threats to
Hawaiian insular false killer whales and organized its assessment of
threats according to the five factors listed under ESA section 4(a)(1).
They evaluated the potential role that each factor may have played in
the decline of Hawaiian insular false killer whales and the degree to
which each factor is likely to limit population growth in the
foreseeable future. Within the five factors, specific threats were
individually ranked by considering the severity, geographic scope, the
level of certainty that insular false killer whales are affected, and
overall current and future (60 years) risk imposed by that threat.
Consideration of future threats was limited to 60 years duration as
this corresponds roughly to the life span of a false killer whale and
represents a biologically relevant time horizon for projecting current
conditions into the future.
Section 4(a)(1) of the ESA and NMFS's implementing regulations (50
CFR 424) state that the agency must determine whether a species is
endangered or threatened because of any one or a combination of the
five factors described under the ESA Statutory Provisions. The BRT was
not asked to determine whether the DPS was endangered or threatened; it
was only asked to assess the risk of extinction and the impact of
factors affecting the DPS. The following discussion briefly summarizes
the BRT's findings regarding threats to the Hawaiian insular false
killer whale DPS. More details, including how the BRT voted, can be
found in the status review report (Oleson et al., 2010). Overall, there
were 29 threats identified to have either a historical, current, or
future risk to Hawaiian insular false killer whales. Of these, 15 are
believed to contribute most significantly to the current or future
decline of Hawaiian insular false killer whales. The following is a
summary of each of the 15 current and/or future potential threats that
could result in either a high risk or medium risk of extinction,
categorized according to the five section 4(a)(1) factors.
A: The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Reduced Total Prey Biomass and Reduced Prey Size
The impacts of reduced total prey biomass and reduced prey size
represent a medium risk for insular false killer whales. Although
declines in prey biomass were more dramatic in the past when the
insular false killer whale population may have been higher, the total
prey abundance remains very low compared to the 1950s and 1960s as
evidenced by catch-per-unit-effort (CPUE) data from Hawaii longline
fisheries and biomass estimates from tuna stock assessments (Oleson et
al., 2010). Long-term declines in prey size from the removal of large
fish have been recorded from the earliest records to the future (Oleson
et al., 2010).
Competition With Commercial Fisheries
Competition with commercial fisheries is rated as a medium level of
risk to current and future Hawaiian insular false killer whales. This
risk exists because false killer whale prey includes many of the same
species targeted by Hawaii's commercial fisheries, especially the
fisheries for tuna, billfish, wahoo, and mahimahi.
Until 1980, distant-water longliners from Japan caught between
1,300 and 5,000 t of tuna and billfish annually within the U.S. EEZ
around Hawaii (Yong and Wetherall, 1980). Since 1980 no foreign
longline fishing has been legally conducted in this zone, but the U.S.
Hawaii-based longline fisheries now harvest similar quantities of tuna
and billfish in the EEZ. In terms of total hooks deployed by the U.S.
domestic fisheries, the fisheries declined slightly in the 1960s and
1970s, and then began to grow again in the 1980s. Total hooks in the
U.S. EEZ around the main Hawaiian Islands in the period of 1965 and
1977 were around 1.6 to 2.9 million hooks per year. As the domestic
fisheries declined in the 1960s and 1970s, foreign fishing in the U.S.
EEZ around the main Hawaiian Islands increased, and then ceased in
1980. Domestic longlining was revitalized in the 1980s based on new
markets for fresh tuna and the introduction of new shallow-set
swordfish fishing methods.
[[Page 70177]]
Hooks deployed inside the U.S. EEZ around the main Hawaiian Islands in
the 1990s were double that estimated for the 1970s, and doubled again
in the 2000s. Participation in the Hawaii longline fisheries
approximately doubled from 37 vessels in 1987 to 75 in 1989 and doubled
again to 156 (vessels with permits) by the end of 1991. As the Hawaii-
based longline fisheries expanded during the late 1970s through the
early 1990s, longline fishing effort increased in waters near the
Hawaiian Islands and within the range of insular false killer whales.
The expansion in these nearshore waters within the 40 km core habitat
of the Hawaiian insular false killer whales was pronounced during an
influx of new fisheries participants in the late 1980s (Ito, 1991) and
this led to conflicts in the fishing areas previously dominated by
troll and handline fishermen. The growing conflict between commercial
longliners and near-shore troll and handliners was finally resolved in
1992 with a prohibited area limiting nearshore longlining. Although the
fraction of total Pacific longline tuna catches that are from the EEZ
around the main Hawaiian Islands has declined from about half to about
a quarter over the last two decades, the absolute quantity caught in
the EEZ continued to increase through 2005, declining moderately
thereafter (WPRFMC, 2010).
The present-day Hawaiian insular false killer whale population
requires an estimated 1.3 to 1.8 million kg of prey per year (Oleson et
al., 2010). Competition with longline fisheries for potential prey
within the insular false killer whale habitat seems to have represented
a higher risk prior to the early 1990s when the longline fisheries were
harvesting many millions of pounds of fish per year, and where reported
catch locations were almost all in what is now the longline prohibited
area. In the core nearshore habitat (<40 km from shore), the troll and
handline fisheries now harvest as much as is estimated to be consumed
annually by the Hawaiian insular false killer whale population.
Competition With Recreational Fisheries
The potential limiting factor of reduced food due to catch removals
by recreational fisheries was rated lower than for troll, handline,
shortline, and kaka line fisheries in the status review report (Oleson
et al., 2010). The BRT did not consider the estimates of recreational
fishing for pelagic species ranging from 15-25 million lbs (7-11
million kg) per year for 2003-2008 provided by the Marine Recreational
Fisheries Survey (WPRFMC, 2010). Although the methods used to
extrapolate statewide totals from the survey are being overhauled
following a critical review, and although it is difficult to know what
proportion of surveyed fishers' catch may be marketed surreptitiously,
the extrapolated Hawaii recreational fisheries catch totals are many
times higher than the reported commercial catch totals for the troll,
handline, shortline, and kaka line fisheries considered by the BRT
(Oleson et al., 2010). Reported commercial catches may be under-
reported, and some may be included in the recreational estimates, but
if the nominal recreational estimates from the survey are even somewhat
representative, then the recreational sector would represent at least
as much competition for fish as the reported commercial troll handline,
shortline, and kaka line fisheries. Thus, we believe competition with
recreational fisheries should be rated as a medium level of current and
future risk to Hawaiian insular false killer whales.
Natural or Anthropogenic Contaminants
The threat of the accumulation of natural or anthropogenic
contaminants, such as exposure to persistent organic pollutants (POPs),
heavy metals (e.g., mercury, cadmium, lead), chemicals of emerging
concern (industrial chemicals, current-use pesticides, pharmaceuticals,
and personal care products), plastics, and oil, is rated as a medium
level of current and future risk to Hawaiian insular false killer
whales.
Many toxic chemical compounds and heavy metals degrade slowly in
the environment and thus tend to biomagnify in marine ecosystems,
especially in lipid-rich tissues of top-level predators (McFarland and
Clarke, 1989). In marine mammals, exposure to high levels of POPs has
been associated with immunosuppression (Ross et al., 1995; Beckmen et
al., 2003), reproductive dysfunction (Helle et al., 1976; Subramanian
et al., 1987), and morphological changes (Zakharov and Yablokov, 1990;
Sonne et al., 2004). Heavy metals have also been shown to accumulate in
marine mammals and, in some cases, may cause deleterious biological
effects, including alterations in steroid synthesis and liver damage
(O'Hara and O'Shea, 2001). Many of these chemicals have been banned in
the U.S. from production and use due to their toxic effects on wildlife
and laboratory animals. As a result, the levels of these compounds in
marine environmental samples in the U.S. have declined since the bans,
including fish from Hawaii (Brasher and Wolff, 2004). However, some of
these chemicals continue to be used in other regions of the world and
can be transported to other areas via atmospheric transport or ocean
currents (Fiedler, 2008; van den Berg, 2009). Even though these
contaminants have been banned in the U.S. for more than 25 years, they
continue to be measured in marine animals from Hawaii (Hunter, 1995;
Kimbrough et al., 2008; Ylitalo et al., 2009).
Independently the threat of bioaccumulation of chemicals is a cause
for concern, but when coupled with the threat of reduced prey
quantities or qualities also affected by the contaminants, the risk
associated with exposure to lipophilic POPs may increase. Thus, animals
that are nutritionally challenged could be at higher risk as a result
of increased mobilization of these compounds to other organs where
damage could result. It is suspected that body condition can influence
POP burdens in the blubber of marine mammals even though the dynamics
of blubber POPs during changes in physiological conditions of these
animals are complex and poorly understood (Aguilar et al., 1999).
Marine mammals can lose weight during various stages of their life
cycles due to different stresses such as disease, migration, or reduced
prey abundance. The mobilization of lipids associated with weight loss
could result in redistribution of POPs to other tissues, or to
retention of these compounds in blubber that would result in a
concentration increase (Aguilar et al., 1999). Thus, animals that are
nutritionally challenged could be at higher risk as a result of
increased mobilization of these compounds to other organs where damage
could result. And although levels of POPs have decreased since their
bans in the U.S., they continue to be measured in biota from the main
Hawaiian Islands, including Hawaiian insular false killer whales.
Recently, summed polychlorinated biphenyls (PCBs) measured in some of
these whales were above a marine mammal threshold value (17,000 ng/g,
lipid) associated with deleterious health effects (e.g., thyroid
dysfunction, immunosuppression) (Kannan et al., 2009).
With human population growth and increasing commercial development,
there has been an increased demand for industrial chemicals, current-
use pesticides, pharmaceuticals, and personal care products. Many of
these chemicals of emerging concern (CECs) are used in high volumes in
various applications and, as a result, are capable of entering marine
environments via
[[Page 70178]]
various routes. Currently, it is unclear what risk CECs pose to
Hawaiian insular false killer whales or their habitat as little is
known about the current occurrence, fate, and transport of CECs in the
main Hawaiian Island region.
Marine litter and debris has become an increasing problem in the
oceans, with plastic debris being the most abundant (Derraik, 2002).
Although marine litter has been identified by the BRT as a threat
related to habitat, it could also be identified as a threat under
disease as well as other manmade factors. For direct threats to false
killer whales, ingestion of plastics can obstruct or damage the
esophagus and the digestive or intestinal tracts, block gastric
enzymatic secretions, and have other effects that could reduce an
animal's ability to feed and ultimately its overall fitness (Derraik,
2002). Ingestion of chemical light sticks used on swordfish longlines
in Hawaii may pose an additional risk of chemical contamination. There
is one documented case of ingestion of a net fragment by a false killer
whale on the British Columbia coast (R. Baird, pers. comm., Cascadia
Research Collective). For threats related to disease, risks include
exposure to environmental contaminants contained in plastic resins. For
threats related to other manmade factors, risks linked to plastic
debris include entanglement, and introduction of alien species
(Derraik, 2002; Rios et al., 2007). These threats are not only possible
for false killer whales, but for their prey as well.
Oil is made up of thousands of different chemicals and some of the
most toxic of these petroleum-related compounds are the polycyclic
aromatic hydrocarbons (PAHs). These compounds are prevalent in coastal
waters, especially in urban embayments, and have been shown to alter
normal physiological function in marine biota (Varanasi et al., 1989;
Stein et al., 1993). Concerns have been raised over the effects of
exposure to PAHs, alone or in combination with other toxic
contaminants, in marine mammals because of the worldwide use of fossil
fuels (Geraci and Aubin, 1990) and the occurrence of oil spills in
areas that support marine mammal populations. Marine mammals can be
exposed to oil by various routes, such as inhalation of volatile PAHs,
direct ingestion of oil, and consumption of contaminated prey (O'Hara
and O'Shea, 2001). Vertebrates, such as fishes and cetaceans, rapidly
take up PAHs present in the environment and quickly metabolize these
compounds. The PAH metabolites are then concentrated in the bile for
elimination (Varanasi et al., 1989). However, if a marine mammal has
been exposed to a large amount of petroleum (e.g., after an oil spill)
and the liver enzyme system has been overwhelmed such that it cannot
efficiently metabolize the PAHs, there is the possibility that
petroleum-related PAHs could pose a risk. After the Exxon Valdez oil
spill in March 1989, several killer whales were observed to transit
through oiled waters (Dahlheim and Matkin, 1994) in the region and 14
killer whales (33 percent) from the local AB pod disappeared between
1989 and 1991. There was no clear evidence to link the oil exposure to
the disappearance (and presumably deaths) of these whales, but it is
plausible (Matkin et al., 2008). Oil spills have been reported in the
main Hawaiian Islands. In May 1996, for example, an oil spill occurred
in Pearl Harbor after a pipeline broke and spilled more than 25,000
gallons of oil (Honolulu Star Bulletin, 1996). The impact of this spill
and other main Hawaiian Island oil spills (e.g., Barbers Point in 2009)
on Hawaiian insular false killer whales and their prey is not known.
B: Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
As previously mentioned, this factor may have contributed to the
historical decline of Hawaiian insular false killer whales with live-
capture operations occurring prior to 1990. However, there are no
current and/or future threats identified for this listing factor.
Interactions with fisheries are discussed under Factor D (below).
C: Disease or Predation
Environmental Contaminants or Environmental Changes
Disease and predation play a role in the success of any population,
but small populations in particular can be extremely susceptible as
this threat can have a disproportionate effect on small populations.
Anthropogenic influences can potentially increase the risk of exposure
to these pressures by lowering animals' immune system defenses, which
may have detrimental effects to the population as a whole and result in
mortality and reduced reproductive potential. Disease-related impacts
of individual threats, such as exposure to environmental contaminants,
parasites, pathogens, and harmful algal blooms pose a medium threat to
Hawaiian insular false killer whales.
Although little is known about the occurrence of parasites in
Hawaiian insular false killer whales, Hawaiian monk seals from the main
Hawaiian Islands were exposed to protozoan and coccidian parasites.
Discharge of raw or partially treated sewage effluent and contaminated
freshwater runoff into marine coastal waters can increase the risk of
pathogen transmission to animals that reside in nearshore areas, such
as Hawaiian insular false killer whales. Additionally, insular false
killer whales may be at an increased risk for exposure to biotoxins
produced during harmful algal blooms (HAB) potentially caused from
eutrophication and rising ocean temperature. Several Hawaiian monk
seals died in the late 1970s and these deaths were attributed to
exposure to the marine biotoxins ciguatoxin and maitotoxin from a HAB.
HABs appear to be increasing in frequency and geographical distribution
worldwide and pose a future threat to Hawaiian insular false killer
whales.
Short and Long-term Climate Change
The threats from climate change are separated into two parts: In
this section as it relates to an increase in disease vectors, and in
Factor E as it relates to changes in sea level, ocean temperature,
ocean pH, and expansion of low-productivity areas. Climate change poses
a medium threat to Hawaiian insular false killer whales due to the
possible increase in disease vectors. Increased water temperature could
change the composition of microbial communities in the main Hawaiian
Islands. This may create an environment that could support new microbes
not usually found in the region, thus exposing Hawaiian insular false
killer whales to novel pathogens.
D: The Inadequacy of Existing Regulatory Mechanisms
The Lack of Reporting/Observing of Nearshore Fisheries Interactions
As described previously, a high rate of fin disfigurements (Baird
and Gorgone, 2005) and other observations suggest interactions between
fisheries and Hawaiian insular false killer whales. The continued lack
of reporting/observing of nearshore fisheries interactions with insular
false killer whales is rated by the BRT as a medium level of current
and future risk to Hawaiian insular false killer whales. The State of
Hawaii does not monitor bycatch of marine mammals in any of its state
fisheries. The federally-managed Hawaii-based shallow-set longline
fishery maintains approximately 100 percent observer coverage, and the
federally-managed Hawaii-based deep-set longline fishery maintains
approximately 20 percent observer coverage. Troll, handline, pole-and-
line,
[[Page 70179]]
shortline, and kaka line fisheries do not have observer coverage,
whether they are state or federal. Even if all state and federal
fisheries maintained 100 percent observer coverage, that would likely
only eliminate possible intentional harm by fishermen; it would not
necessarily reduce or eliminate incidental hooking or entanglement.
Although each of these fisheries is required by law under the MMPA to
report interactions with marine mammals, the low number of reports
strongly suggests that interactions are occurring and are not being
reported. However, there is also no way to enforce self-reporting.
The Longline Prohibited Area Not Reversing the Decline of the DPS
In addition to what the BRT identified as an inadequate regulatory
mechanism as described above, we considered whether any other
regulatory mechanisms directly or indirectly address what are deemed as
the highest threats to the insular DPS: Small population size, and
hooking, entanglement, or intentional harm by fishermen. Small
population size is considered a high risk threat because of reduced
genetic diversity, inbreeding depression, and other Allee effects, but
these are inherent biological characteristics of the current population
that cannot be altered by existing regulatory mechanisms. No legal
protection is in place, nor could one be implemented, to reduce the
threats of small population size.
Regarding addressing the high threat of hooking and entanglement, a
regulatory mechanism exists to partially address this threat from
commercial longline fisheries. The longline prohibited area around the
main Hawaiian Islands was implemented in 1992 through Amendment 5 to
the Western Pacific Pelagic Fisheries Management Plan to alleviate gear
conflicts between longline fishermen versus handline and troll
fishermen, charter boat operators, and recreational fishermen. Although
characterized as a ``25-75 nm'' longline exclusion boundary, the
boundary was not set at a precise distance from shore and in fact
varies from 42.4 nm (78.6 km) to 104.4 nm (193.4 km) from shore from
February through September (median distance 61.1 nm, 113.1 km). For the
remaining four months of the year (October through January)
approximately two-thirds (66.3 percent) of the boundary contracts
towards the islands, such that the boundary ranges from 24.3 nm (45.1
km) to 104 nm from shore (median distance 48.7 nmi, 90.2 km) (Baird,
2009).
Longline fishing has thus been effectively excluded from the
insular DPS's entire core range (<40 km). This prohibited area thus
indirectly benefits insular false killer whales by decreasing the
amount of longline fishing in insular false killer whale habitat.
However, the decline of the insular DPS has occurred mostly since then,
in spite of the prohibited area. In addition, and discussed further in
the Protective Efforts section, the prohibited area is being proposed
for complete closure to longline fishing out to the current February-
September boundary, year-round. If implemented, this would exclude
longline fishing from most of the geographic range of the insular stock
as it is defined in the draft 2010 SAR, including most of the pelagic/
insular stock overlap zone (Carretta et al., 2010). Nevertheless,
although the longline prohibited area and the proposed expansion, which
is anticipated to protect the pelagic false killer whale, could also
benefit the insular DPS by reducing incidental serious injury and
mortality, there is no evidence that existence of the prohibited area
is reversing, or will reverse, the decline of the DPS. Thus, this
regulatory mechanism alone is inadequate to protect the insular DPS of
Hawaiian false killer whales from further decline and is ranked a high
risk threat.
In summary, following a review of the best available information,
the greatest threats to the species are still insufficiently addressed.
This is either because the efforts can't or don't address all of the
threats, or because enforcement of regulatory mechanisms is limited.
Protective efforts from regulatory mechanisms, such as the MMPA, Clean
Water Act, etc., are discussed in a later section. However, given the
size of the U.S. EEZ surrounding the main Hawaiian Islands, adequate
enforcement of laws in such a vast area is difficult. Therefore, we
find that existing regulations are inadequate to protect the species
from further declines throughout all of its range, and thus the
inadequacy of existing regulatory mechanisms is itself a high threat to
the Hawaiian insular false killer whale.
E: Other Natural or Manmade Factors Affecting Its Continued Existence
Short and Long-term Climate Change
Climate change poses a medium threat to Hawaiian insular false
killer whales and could be manifested in many ways, including changes
in sea level, ocean temperature, ocean pH, and expansion of low-
productivity areas (i.e., ``dead zones''). Sea level change, however,
is unlikely to affect false killer whales. In contrast, ocean
temperature plays a key role in determining habitat for many species,
and changes in the parameter would likely have a strong impact on false
killer whales. Many prey species and competitor species have ranges
closely linked to ocean temperature characteristics, including
isotherms and gradients. Changes in temperature regimes could have
severe impacts on pelagic ecosystems, in general. For false killer
whales, specifically, many of their forage species are migratory and/or
mobile (i.e., few benthic species) and could alter their distribution.
The movement of other large predatory marine species' ranges is likely
to change, which could impact competition with false killer whales.
However, a much better understanding is needed of prey preferences and
predator-prey dynamics before speculating on the possible impacts of
warming or cooling trends on insular false killer whales. Temperature
may also have a direct linkage to productivity and growth rate, but
again it remains difficult to establish directionality of net effect.
Climate change related ocean acidification could alter the
productivity and composition of the main Hawaiian Island ecosystem.
Increases in low-productivity areas (e.g., Polovina et al., 2008;
Brewer and Peltzer, 2009) would probably have the strongest impacts on
false killer whales. Lower productivity resulting in decreases in
forage abundance would have a negative impact unless mobile forage
species were concentrated into smaller regions that could then be
exploited more easily. Again, presumed effects are large but net
directionality is difficult to predict. One of the largest unknowns is
whether the insular population would remain in the same location if
conditions became less favorable.
Interactions With Commercial Longline Fisheries
Interactions with commercial longline fisheries was rated as a high
level of current and/or future risk to Hawaiian insular false killer
whales. The BRT concluded that the intense and increased fishing
activity within the known range of insular false killer whales since
the 1970s suggests a high risk of fisheries interactions, even though
the extent of interactions with almost all of the fisheries is
unquantified or unknown. The only fisheries occurring within the range
of the insular DPS for which there are recent quantitative estimates of
hooking
[[Page 70180]]
and entanglement of false killer whales are the Hawaii-based federal
commercial longline fisheries. These fisheries have been largely
excluded from the known range of Hawaiian insular false killer whales
since the early 1990s, suggesting the current and future risk from
longlining (assuming the current restrictions remain in place),
although high, is somewhat lower compared to the historic risk. It is
likely that unobserved interactions with these longline fisheries
represented an even higher risk up until the early 1990s.
Beginning in 1994, onboard observers in Hawaii-based longline
fisheries have systematically recorded information on interactions with
protected species, including marine mammals. Observer coverage
initially was about 4 percent for all longline effort combined, but
increased beginning in 1999. Since 2004, observer coverage has been 100
percent for shallow-set trips and 20 percent for deep-set trips. Both
fisheries operate on the high seas and within the U.S. EEZ. False
killer whales have been the most frequently hooked or entangled
cetacean, primarily during tuna-targeting longline sets (Forney and
Kobayashi, 2007; McCracken and Forney, 2010). Average mortality and
serious injury, based on 31 observed interactions between 1994 and
2008, has been about 13 (CV = 0.37) false killer whales per year
(calculated from estimates in Forney and Kobayashi, 2007; McCracken and
Forney, 2010). Eleven additional false killer whales were observed
injured or killed during 2009 throughout the range of the fisheries.
Most of the observed interactions with false killer whales in the
Hawaii-based longline fisheries occurred more than 140 km from the
Hawaiian Islands, beyond the known range of insular false killer
whales; however, a few interactions occurred closer to the Hawaiian
Islands and may have involved insular animals. Following a review of
insular false killer whale movements and other factors, the 2004
through 2008 takes have been prorated to insular versus pelagic animals
based on geographic location (McCracken and Forney, 2010). Given
current observer coverage levels, only approximately 20 percent of all
takes are observed and have known locations. Annually during this 5-
year period, one false killer whale was determined to have a non-
serious injury within the 140 km extended range and an average of 0.60
insular false killer whales were estimated to have been killed or
seriously injured (McCracken and Forney, 2010). This estimate assumes
that the probability of taking Hawaiian insular versus pelagic false
killer whales is proportional to the estimated density of each
population in the area where the takes occurred (NMFS, 2005). There are
presently no data available to evaluate this assumption or whether
there are other potential differences that might cause the two
populations to behave differently with respect to longline gear.
Historically, more frequent takes may have occurred when there was much
greater overlap between insular false killer whales and longline
fisheries.
Interactions With Troll, Handline, Shortline, and Kaka Line Fisheries
A high level of current and future risk was found by the BRT for
these fisheries. This is based on the large scale and distribution of
the troll and handline fisheries, and on anecdotal reports of
interactions with cetaceans, although interactions specific to false
killer whales are known only for the troll fishery. The troll fishery
has by far the greatest participation and effort in fishing days of any
fishery within the known range of insular false killer whales, followed
by the handline fishery, with the kaka line and shortline fisheries a
distant third and fourth. The kaka line and shortline fishing methods
have been implicated as a threat based on the similarity of these
fishing gears and methods to longline fishing. Potential threats
associated with these activities include hooking or entanglement of
false killer whales in gear, gear ingestion, direct shooting or injury
of false killer whales by fishermen, and competition with fisheries for
prey species, such as tuna and billfish.
False killer whales have been documented taking catch or bait
during non-longline commercial and recreational fishing operations
around the Hawaiian Islands since at least the 1940s (Shallenberger,
1981; Nitta and Henderson, 1993), but little information is available
to document the effects of these interactions on false killer whales.
Animals may become hooked or entangled, and in some cases, fishermen
have reported shooting at false killer whales and other dolphins or
using explosives or chemicals to avoid losing catch or bait (Schlais,
1985; Nitta and Henderson, 1993; TEC, 2009). Based on photographs of
Hawaiian insular false killer whales, Baird and Gorgone (2005)
documented a high rate of dorsal fin disfigurements that were
consistent with injuries from unidentified fishing line (3 out of 80
individuals or 3.75 percent, compared to 0-0.85 percent for other
studied cetacean populations). Interactions with false killer whales
have been reported for troll fisheries (Shallenberger, 1981; Zimmerman,
1983; Nitta and Henderson, 1993), and possibly shortline or kaka line
fisheries (anecdotal reports of ``blackfish'' interactions that may
have been false killer whales; cited in Baird, 2010). Some of these
recreational fisheries in Hawaii target the same species as commercial
fisheries (e.g., tuna, billfish) and use the same or similar gear, and
might also be expected to experience interactions with insular false
killer whales.
Although there are only a few published reports of interactions
between false killer whales and troll fisheries, anecdotal evidence
indicates that false killer whales have been associated with troll
fisheries for decades, often taking catch or bait from lines. It is
unknown whether animals get hooked or entangled in troll gear (as they
do in longline gear). Fishermen have reported shooting at animals or
taking other measures to protect their bait, catch, or gear
(Shallenberger, 1981), although it has been illegal to intentionally
kill or injure cetaceans since the MMPA was passed in 1972.
Anecdotal reports indicate that interactions between handline
fisheries and cetaceans have been common since at least the 1970s.
Bottlenose dolphins or rough-toothed dolphins (Steno bredanensis) have
generally been implicated rather than false killer whales. No
information is available to determine whether handline fishermen shoot
at cetaceans or take other harmful measures to try to prevent the loss
of bait or catch, as has been reported for the other fisheries
(Shallenberger, 1981; Zimmerman, 1983; Nitta and Henderson, 1993). No
interactions with false killer whales have been reported to NMFS under
the Marine Mammal Authorization Program (required for fisheries listed
on the List of Fisheries (LOF)) even though the troll and handline
fisheries are listed as Category III fisheries. There is currently no
independent observer reporting system. Self-reporting is the only
method currently available to document potential marine mammal
interactions in these fisheries. The shortline fishery was added to the
LOF in 2010 by analogy as a Category II fishery and the kaka line
fishery is proposed to be added to the 2011 LOF as a Category III
fishery. No interactions between the shortline or kaka line fishery and
false killer whales have been reported to NMFS, and currently there is
no independent observer program for monitoring bycatch in either the
shortline or the kaka line fishery. There are anecdotal reports of
interactions with cetaceans off the north side of
[[Page 70181]]
Maui, but the species and extent of interactions are unknown (74 FR
58879, Nov. 16, 2009). Based on the similarity of these fisheries to
longline fisheries (with respect to gear type and target species), it
is likely that false killer whales are involved; however, the nature
and extent of any such interactions are unknown. Although there is no
evidence to suggest a disproportionate threat from the shortline and
kaka line fisheries compared with other, much larger fisheries
operating within the known range of insular false killer whales, the
2008 increase in catch suggests that the shortline fishery could expand
rapidly.
Small Population Size
Reduced genetic diversity, inbreeding depression, and other Allee
effects associated with small population size represent a high risk to
current and future Hawaiian insular false killer whales. The current
estimated number of breeding adults (46 individuals) is so small that
inbreeding depression could have increasingly negative effects on
population growth rate and other traits, including social factors (such
as reduced efficiency in group foraging and potential loss of knowledge
needed to deal with unusual environmental events), may further
compromise the ability of Hawaiian insular false killer whales to
recover to healthy levels.
The processes that cause small populations to have a greater risk
of extinction include genetic and behavioral problems, as well as
chance processes like demographic and environmental stochasticity
(Shaffer, 1981; Gilpin and Soule, 1986; Goodman, 1987; Simberloff,
1988; Lande, 1993). The decrease in per capita population growth as
population size declines is often referred to as the ``Allee effect''
or ``depensation'' (see references in Oleson et al., 2010) . In
essence, as the number of individuals decreases there are costs from a
lack of predator saturation, impaired anti-predator vigilance or
defence, a breakdown of cooperative feeding, an increased possibility
of inbreeding depression or other genetic issues, decreased birth rates
as a result of not finding mates, or a combination of these effects.
The Allee effect increases risk to small populations directly by
contributing to the risk of extinction, and indirectly by decreasing
the rate of recovery of exploited populations and, therefore,
maintaining populations at a smaller size where extinction risk is
higher for a variety of reasons (Dennis, 1989; Stephens and Sutherland,
1999).
In addition, social odontocetes (such as false killer whales) may
be particularly vulnerable over and beyond the numerical loss of
individuals to the population (Wade and Reeves, 2010). Some of these
effects may act in a similar fashion to Allee effects or have a more
pronounced effect at low population sizes. Survival and reproductive
success may depend on such things as social cohesion and social
organization, mutual aid in defence against predators, and possible
alloparental care such as ``babysitting'' and communal nursing,
sufficient opportunities for transfer of ``knowledge'' (learned
behavior) from one generation to the next, and leadership by older
individuals that know where and when to find scarce prey resources and
how to avoid high-risk circumstances (e.g., ice entrapment, stranding,
predation).
False killer whales share several life history traits with killer
whales and belugas that make them prone to problems associated with
small population size: A low intrinsic growth rate (a consequence of
late maturity and a low birth rate), strong social structure
demonstrated through close associations of individuals over long time
periods, the potential for high adult survival enabled by the
intergenerational cultural transmission of certain types of awareness
or specialized behavior, and a low effective population size compared
to abundance. This last feature leads to low genetic diversity, which
increases the probability that inbreeding depression will occur at a
higher level of total abundance than is the case for many other
species. Franklin (1980) found that inbreeding depression increases
substantially when the number of reproductive animals becomes fewer
than 50. The adult population of Hawaiian insular false killer whales
is likely approaching the level at which the effects of inbreeding
depression become a factor in determining whether the population is
able to maintain itself or increase.
Anthropogenic Noise
Anthropogenic noise, caused from sonar and seismic exploration from
sources including military, oceanographic, and fishing sonar, is rated
as a medium level of current and future risk to Hawaiian insular false
killer whales. Odontocete cetaceans, including false killer whales,
have a highly evolved acoustic sensory system. False killer whales rely
heavily on their acoustic sensory capabilities for navigation,
foraging, and communicating with conspecifics. Potential and measured
impacts of anthropogenic noise on cetaceans have been reviewed by a
number of authors (Richardson et al., 1995; Nowacek et al., 2004;
Hildebrand, 2005; Weilgart, 2007). No specific studies or observations
of the impacts of noise on wild false killer whales are available.
However, intense anthropogenic sounds have the potential to interfere
with the acoustic sensory system of false killer whales by causing
permanent or temporary hearing loss, thereby masking the reception of
navigation, foraging, or communication signals, or through disruption
of reproductive, foraging, or social behavior. Experiments on a captive
false killer whale have revealed that it is possible to disrupt
echolocation efficiency in this species with the level of disruption
related to the specific frequency content of the noise source as well
as the magnitude and duration of the exposure (Mooney et al., 2009).
In recent years there has been increasing concern that active sonar
and seismic operations are harmful to beaked whales (Cox et al., 2006)
and other cetaceans, including melon-headed whales (Peponocephala
electra) (Southall et al., 2006), and pygmy killer whales (Feresa
attenuata) (Wang and Yang, 2006). The use of active sonar from military
vessels has been implicated in mass strandings of beaked whales and
delphinids. A 2004 mass-stranding of melon-headed whales in Hanalei
Bay, Kauai, occurred during a multi-national sonar training event
around Hawaii (Southall et al., 2006). Although data limitations
preclude a conclusive finding regarding the role of Navy sonar in
triggering this event, sonar transmissions were considered a plausible,
if not likely, cause of the mass stranding. False killer whales have
been herded using loud sounds in drive fisheries off Japan (Kishiro and
Kasuya, 1993; Brownell et al., 2008), suggesting that high-intensity
noise can affect the behavior of false killer whales in Hawaiian
waters. The U.S. Navy's Hawaii Range Complex surrounds the main
Hawaiian Islands and is regularly used for training exercises that
broadcast high-intensity, mid-frequency sonar sounds (U.S. Navy, 2008).
NMFS regularly reviews these exercises and the potential for exposure
of mid-frequency sonar and may issue a Letter of Authorization (LOA)
allowing incidental take (MMPA; 16 USC 1362(18)(B)). In 2010, NMFS
authorized Level B harassment (i.e., having the potential to disturb)
for 51 false killer whales; no Level A harassment (i.e., having the
potential to injure) or mortality was authorized for false killer
whales.
[[Page 70182]]
Population Viability Analysis
In addition to the qualitative analysis of possible threats to
insular false killer whales, the BRT also conducted a quantitative
analysis of extinction risk using a Population Viability Analysis
(PVA), a model used to quantify extinction risk by integrating and
analyzing the various risks a population may face. This PVA was
conducted to evaluate the probability of actual and near extinction,
with ``near extinction'' defined as fewer than 20 animals within 75
years, or three false killer whale generations. The PVA took into
account measured, estimated, and inferred information on basic life
history, population size and trends, as well as varying impacts of
catastrophes, environmental stochasticity, and Allee effects. A variety
of alternative scenarios were evaluated, and most models indicated a
probability of greater than 50 percent likelihood of the DPS declining
to fewer than 20 individuals within 75 years. Even though the
evaluation of individual threats to the insular population was limited
to 60 years duration (the approximate lifespan of a false killer
whale), the PVA results modeled probability of reaching near extinction
by 50 years (2 generations), 75 years (3 generations), and 125 years (5
generations). Although 60 years wasn't specifically modeled, the
results from reaching near extinction by 50 years still showed a high
risk of extinction for Hawaiian insular false killer whales. The PVA
results are described in greater detail in Appendix B of the status
review report (Oleson et al., 2010).
Extinction Risk Assessment Conclusion by the BRT
Given the results of the PVA analysis and the possible threats to
the insular population, the BRT agreed by consensus that Hawaiian
insular false killer whales are at a high risk of extinction due to
either small-scale incremental impacts over time (e.g., reduced
fecundity or survivorship due to direct or indirect effects of
fisheries, and small population size) or a single catastrophic event
(e.g., disease outbreak). Uncertainty as to the causes of the recent
decline, the current threats, and current viability of the population
increases concern for this group of whales.
Summary of Findings
After considering all elements in the status review report and, in
particular, the PVA and the five ESA section 4(a)(1) factors, we have
determined that the Hawaiian insular false killer whale DPS is in
danger of extinction throughout all of its range. Overall, most PVA
models indicated a probability of greater than 50 percent likelihood of
the DPS declining to fewer than 20 individuals within 75 years, which
would result in functional extinction beyond the point where recovery
is possible. The risk table provided in the status review report
identifies small population size, and hooking, entanglement, or
intentional harm by fishermen as the two threats that pose the most
significant risk to Hawaiian insular false killer whales, while a
number of other threats potentially pose a medium and high risk to this
population. The decline in abundance of Hawaiian insular false killer
whales likely resulted from a number of factors acting synergistically.
This description of risk and the level of concern for Hawaiian insular
false killer whales are similar to those described for other species of
social odontocetes listed as endangered under the ESA (e.g., Southern
Resident killer whales and Cook Inlet beluga whales).
Protective Efforts
Section 4(b)(1)(A) of the ESA requires consideration of efforts
being made to protect a species that has been petitioned for listing.
Accordingly, we assessed conservation measures being taken to protect
the Hawaiian insular false killer whale DPS to determine whether they
ameliorate this species' extinction risk (50 CFR 424.11(f)). In judging
the efficacy of conservation efforts, identified in conservation
agreements, conservation plans, management plans, or similar documents,
that have yet to be implemented or to show effectiveness, the agency
considers the following: the substantive, protective, and conservation
elements of such efforts; the degree of certainty that such efforts
will reliably be implemented; the degree of certainty that such efforts
will be effective in furthering the conservation of the species; and
the presence of monitoring provisions that track the effectiveness of
recovery efforts, and that inform iterative refinements to management
as information is accrued (Policy for Evaluating Conservation Efforts
(PECE); 68 FR 15100).
The conservation or protective efforts that met the aforementioned
criteria and are currently in place include the following: (1) Take
prohibitions under the MMPA; (2) authorization and control of
incidental take under the MMPA; (3) protection under other statutory
authorities (i.e., the Clean Water Act, MARPOL); (4) the longline
prohibited area; (5) Watchable Wildlife Viewing Guidelines; and (6)
active research programs. The conservation or protective efforts that
also met the aforementioned criteria but are not yet in place include
the following: (7) The draft False Killer Whale Take Reduction Plan;
and (8) possible expansion of the Hawaiian Islands Humpback Whale
National Marine Sanctuary. Each of these efforts is further described
below.
(1) Take Prohibitions Under the MMPA
Various sections of the MMPA provide for protection of false killer
whales. A goal of the MMPA is to maintain marine mammal species or
stocks at or above their optimum sustainable population level. The MMPA
established a moratorium on the taking of marine mammals by any person
or vessel subject to U.S. jurisdiction. It defines ``take'' to mean
``to hunt, harass, capture, or kill'' any marine mammal or attempt to
do so. Exceptions to the moratorium can be made through permitting
actions for take incidental to commercial fishing and other non-fishing
activities; for scientific research; and for public display at licensed
institutions such as aquaria and science centers.
(2) Authorization and Control of Incidental Take Under the MMPA
In 1981, Congress amended the MMPA to provide for incidental take
authorizations for maritime activities, provided NMFS found the takings
would be of small numbers and have no more than a ``negligible impact''
on those marine mammal species not listed as depleted under the MMPA
(i.e., listed under the ESA or below the optimum sustainable
population). These incidental take authorizations, also known as
Letters of Authorization or LOAs, have requirements for monitoring and
reporting, and when appropriate include mitigation measures. Incidental
take from the use of sonar by the U.S. Navy (Navy) is regulated under
the MMPA. In 2007, the Navy requested a 5-year LOA for the incidental
harassment of marine mammals incidental to the training events within
the Hawaii Range Complex (HRC) for the period July 2008 through July
2013. The LOA was sought since the training events may expose certain
marine mammals that may be present within the HRC to sound from hull-
mounted mid-frequency active tactical sonar or to pressures from
underwater detonations. In 2010, NMFS authorized Level B harassment for
51 false killer whales; no Level A harassment or mortality was
authorized for false killer whales. For military readiness activities,
Level A harassment is defined in the MMPA as ``any act that injures or
has the
[[Page 70183]]
significant potential to injure a marine mammal or marine mammal stock
in the wild'', and Level B harassment is defined as ``any act that
disturbs or is likely to disturb a marine mammal or marine mammal stock
in the wild by causing disruption of natural behavioral patterns,
including, but not limited to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such behavioral patterns are
abandoned or significantly altered'' (16 U.S.C. 1362(18)(B)).
The MMPA has various requirements related to take of marine mammals
incidental to commercial fisheries. First, section 118 requires NMFS to
place all U.S. commercial fisheries into one of three categories in the
LOF based on the level of incidental serious injury and mortality of
marine mammals occurring in each fishery. The classification of a
fishery on the LOF determines whether participants in that fishery may
be required to comply with certain other provisions of the MMPA. Owners
of vessels or gear engaging in a Category I or II fishery are required
to register with NMFS and obtain a marine mammal authorization under
the Marine Mammal Authorization Program to lawfully take a non-
endangered and non-threatened marine mammal incidental to commercial
fishing. Participants in Category I or II fisheries are also required
to carry an observer onboard if requested, and comply with any
applicable take reduction plans. Participants in Category I, II, or III
fisheries must report to NMFS all incidental injuries and mortalities
of marine mammals that occur during commercial fishing operations.
The Hawaii-based deep-set longline fishery is classified as a
Category I (frequent incidental mortality and serious injury) and has
20 percent observer coverage; the Hawaii-based shallow-set longline
fishery and the Hawaii shortline fishery are both classified as
Category II fisheries (occasional incidental mortality and serious
injury) and have 100 percent and 0 percent observer coverage,
respectively. The troll and handline fisheries are all classified as
Category III fisheries (remote likelihood of/no known incidental
mortality and serious injury) and the kaka line fishery is proposed to
be listed as Category III; each has 0 percent observer coverage.
Compliance with reporting requirements is likely low and reports
provide only a minimum estimate of the number of interactions. However,
without observer programs for most of the fisheries, self-reporting of
incidental take is the only option currently available to document
interactions.
The insular population has been designated as the Hawaii insular
stock for the purposes of management under the MMPA. As of the draft
2010 SAR (Carretta et al., 2010), the Hawaii insular stock is not
listed as ``threatened'' or ``endangered'' under the ESA, nor is it
considered ``depleted'' under the MMPA. In addition, the estimated
average annual human-caused mortality and serious injury for this stock
(0.60 animals per year) is slightly less than the potential biological
removal (PBR) (0.61); therefore, the insular false killer whale stock
is not considered ``strategic'' under the MMPA. Since the insular stock
is neither ``depleted'' nor ``strategic'' under the MMPA, no
conservation plan to foster recovery has been developed.
(3) Protection Under Other Statutory Authorities (i.e., the Clean Water
Act, MARPOL)
Other statutory authorities, such as the Federal Clean Water Act
(CWA) and MARPOL (International Convention for the Prevention of
Pollution from Ships), offer some protection to Hawaiian insular false
killer whales. Federal programs carried out under the CWA help to
ensure that water quality is maintained or improved. Section 402
(discharge of pollutants into water bodies) regulates activities that
might degrade false killer whale habitat or prey. Although programs
carried out under the CWA are well funded and enforcement of this law
occurs, albeit limited, it is unlikely that programs are sufficient to
fully protect false killer whale habitat or prey. MARPOL was designed
to minimize pollution of the seas, including dumping of debris and
plastics, oil, and exhaust pollution. All ships flagged under countries
that are signatories to MARPOL are subject to its requirements.
Although this is an international convention with a large number of
signatories, the large expanse of the oceans make enforcement of
illegal marine pollution difficult to enforce.
(4) The Longline Prohibited Area
The Main Hawaiian Islands Longline Prohibited Area was implemented
in 1992 through Amendment 5 to the Western Pacific Pelagic Fisheries
Management Plan to alleviate gear conflicts between Hawaii-based
longline fishermen versus handline and troll fishermen, charter boat
operators, and recreational fishermen. The prohibited area varies from
25-75 nm offshore seasonally and excludes longline fishing in much of
the range of the Hawaiian insular false killer whale for 8 months of
the year. Since implementation of the prohibited area, however, decline
of the insular DPS has still occurred.
(5) Watchable Wildlife Viewing Guidelines
Watchable Wildlife Viewing Guidelines exist for other species of
marine mammals in Hawaiian waters, including false killer whales. The
recommended distance for observation is 150 ft when on the beaches or
on the water and 1,000 ft when operating an aircraft. These viewing
guidelines, however, are only recommendations and are not legally
enforceable.
(6) Active Research Programs
Finally, there are a number of active research programs that are
currently identifying Hawaiian false killer whale data gaps and
improving our understanding of possible risk factors. For example,
research priorities include a need for better understanding of
movements, stock structure, population genetics, contaminant levels,
etc. Valuable data is being collected, however, data collection and
analysis can take a considerable amount of time.
(7) Draft False Killer Whale Take Reduction Plan
The Hawaii pelagic stock of false killer whales was designated as a
``strategic stock'' in 2000, but is not considered ``depleted'' under
the MMPA. Current levels of human-caused mortality and serious injury
(7.3 animals per year) exceed the stocks PBR level (2.5). In 2009 NMFS
convened a false killer whale take reduction team to develop a Take
Reduction Plan pursuant to section 118 of the MMPA. The take reduction
team submitted its consensus recommendations (draft Take Reduction
Plan, or Plan) to NMFS on July 19, 2010. NMFS is currently evaluating
the Plan. NMFS will then issue a proposed rule and implementing
regulations based on the team's recommendations, gather public
comments, and publish a final rule and implementing regulations in the
Federal Register.
The immediate goal of the Plan is to reduce, within 6 months of its
implementation, incidental mortality and serious injury occurring
within the U.S. EEZ surrounding the Hawaiian Islands of the Hawaii
pelagic stock of false killer whales in the Hawaii-based longline
fisheries to less than the stock's PBR level of 2.5 false killer whales
per year. The long-term goal of the Plan is to reduce, within 5 years
of its implementation, the incidental mortality and serious injury of
the Hawaii pelagic, Hawaii insular, and Palmyra Atoll stocks of false
killer whales to insignificant levels
[[Page 70184]]
approaching a zero mortality and serious injury rate.
Although there are other U.S. fisheries that may have incidental
mortality and serious injury of false killer whales, such as commercial
and recreational trolling and other hook-and-line fisheries, the Plan
does not include recommendations for reducing bycatch in these other
fisheries. Instead, the Plan focuses on the fisheries that are known to
pose significant risk to the region's stocks of false killer whales.
The Hawaii insular stock, which is being proposed as the insular
DPS, is known to interact or geographically (partially) overlap with
the Hawaii-based longline fisheries. The draft Take Reduction Plan
contains a recommendation for the year-round closure of a portion of
the Longline Fishing Prohibited Area that lies to the north of the main
Hawaiian Islands and is currently open to longline fishing for four
months of the year. This closure of the northern Prohibited Area, if
implemented, would exclude longline fishing from most of the geographic
range of the Hawaii insular stock as it is defined in the draft 2010
SAR (Carretta et al., 2010). It is anticipated that this proposed
closure would therefore reduce the incidental serious injury and
mortality of Hawaiian insular false killer whales in the Hawaii-based
longline fisheries. Other Take Reduction Plan recommendations include a
combination of additional area closures to the south of the Hawaiian
Islands, as well as the use of circle hooks, weak hooks, increased
observer coverage, and captains' education and outreach, which if
instituted would primarily benefit pelagic false killer whales outside
the longline prohibited area, but may also provide some benefits to the
insular DPS.
(8) Possible Expansion of the Hawaiian Islands Humpback Whale National
Marine Sanctuary
With respect to the State of Hawaii, the Hawaiian Islands Humpback
Whale National Marine Sanctuary is currently undergoing a multi-year
management plan review to assess the Sanctuary's programs and
effectiveness. The plan was last revised in 2002 and the Sanctuary is
required by law to periodically update it. The Sanctuary, formed by
Congress in 1992, is also proposing to ``expand its scope and direction
to protect and conserve other living marine resources besides humpback
whales.'' Currently, only humpback whales (Megaptera novaeangliae) are
afforded additional Federal protections within the Sanctuary, which
includes prohibiting approaches closer than 300 ft when on the water
and 1,000 ft when operating an aircraft (15 CFR 922.184).
Summary of Protective Efforts
We support all conservation efforts currently in effect and those
that are planned for the near future, as mentioned above. However,
these efforts lack the certainty of implementation and effectiveness so
as to remove or reduce threats specifically to Hawaiian insular false
killer whales. Specifically, the MMPA, CWA, and MARPOL are all certain
and effective regulatory measures, but they do not cover indirect or
cumulative threats, such as non-point source pollution, and enforcement
capacity is extremely limited in such a vast EEZ around the main
Hawaiian Islands. The longline prohibited area has also been effective
by reducing interactions with the insular DPS since 1992, yet
interactions have still been documented and the total population size
of the insular DPS has declined since then. The Watchable Wildlife
Viewing Guidelines are only recommendations and thus aren't legally
enforceable. The active research programs have gathered valuable data,
but many data gaps still remain and research is costly and could take
decades. The draft Take Reduction Plan has not yet been implemented,
although it will likely be beneficial to the insular DPS. It, however,
will not address indirect or cumulative effects. Finally, the possible
expansion of the Hawaiian Islands Humpback Whale National Marine
Sanctuary is not definite. It is unknown whether false killer whales
will be added as a species under protection, nor is it certain that it
will be able to address indirect or cumulative threats. Therefore, we
have determined that these conservation efforts are not comprehensive
in addressing the many other issues now confronting insular false
killer whales (e.g., small population effects) and thus will not alter
the extinction risk of the species. In developing our final listing
determination, we will consider the best available information
concerning these efforts, and any other efforts by the State of Hawaii
or local entities, for which we have information (see description of
PECE above).
Proposed Listing Determination
Section 4(b)(1) of the ESA requires that the listing determination
be based solely on the best scientific and commercial data available,
after conducting a review of the status of the species and after taking
into account those efforts, if any, being made by any state or foreign
nation to protect and conserve the species. We have reviewed the
petition, the report of the BRT (Oleson et al., 2010), and other
available published and unpublished information.
Based on this review, we agree with the BRT's assessment and
conclude that the Hawaiian insular false killer whale meets the
discreteness and significance criteria for a DPS (Oleson et al., 2010).
The Hawaiian insular false killer whale is discrete from the pelagic
population based on genetic discontinuity and the uniqueness of its
behavior related to habitat use patterns. This population of Hawaiian
false killer whales is significant to the species as a whole based on
its existence in a unique ecological setting, including diet and
habitat and how it differs from that of other false killer whales, the
potential for marked genetic characteristic differences leading to
adaptive traits, and maintenance of cultural diversity. We also agree
with the BRT's assessment of possible threats and their current and/or
future risk to the insular DPS. The greatest threats to the insular
population are small population effects and hooking, entanglement, or
intentional harm by fishermen. Lastly, we also agree with the BRT's
assessment of extinction risk analysis where most PVA models indicated
a probability of greater than 50 percent likelihood of the DPS
declining to fewer than 20 individuals within 75 years, which would
result in functional extinction beyond the point where recovery is
possible.
Proposed conservation efforts, including those to protect the
pelagic population of Hawaiian false killer whales as described in the
previous section, may also benefit the insular population. Taken
together, however, we have determined that these conservation efforts
are not holistic or comprehensive in addressing the many other issues
now confronting insular false killer whales and thus will not alter the
extinction risk of the species.
Based on the best scientific and commercial information available,
including the status review report, we conclude that the Hawaiian
insular false killer whale DPS is presently in danger of extinction
throughout all of its range because of: (1) The present or threatened
destruction, modification, or curtailment of its habitat or range
(reduced total prey biomass; competition with commercial fisheries;
competition with recreational fisheries; reduced prey size; and
accumulation of natural or anthropogenic contaminants); (2) disease or
predation (exposure to environmental contaminants or environmental
changes; and increases in
[[Page 70185]]
disease vectors as a result of short and long-term climate); (3) the
inadequacy of existing regulatory mechanisms (the lack of reporting/
observing of nearshore fisheries interactions; and the longline
prohibited area not reversing the decline of the insular DPS); and (4)
other natural or manmade factors affecting its continued existence
(climate change; hooking, entanglement, or intentional harm by
fishermen; small population size (reduced genetic diversity, inbreeding
depression, and other Allee effects); and anthropogenic noise (sonar
and seismic exploration)). See the ``Summary of Factors Affecting the
Species'' section above for a description of the specific risks
associated with section 4(a)(1).
In sum, future declines in insular population abundance may occur
as a result of multiple threats, particularly those of small population
size, and hooking, entanglement, or intentional harm by fishermen.
Current trends and projections in abundance indicate that the Hawaiian
insular false killer whale DPS is in danger of extinction throughout
all of its range. Therefore, we propose to list the Hawaiian insular
false killer whale DPS as endangered.
Effects of Listing
Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery actions (16 U.S.C. 1536(f)),
Federal agency consultation requirements (16 U.S.C. 1536), critical
habitat designations, and prohibitions on taking (16 U.S.C. 1538).
Recognition of the species' plight through listing promotes
conservation actions by Federal and state agencies, foreign entities,
private groups, and individuals. Should the proposed listing be made
final, a recovery plan may be developed, unless such plan would not
promote the conservation of the species.
Identifying Section 7 Consultation Requirements
Section 7(a)(2) of the ESA and NMFS/FWS regulations require Federal
agencies to confer with us on actions likely to jeopardize the
continued existence of species proposed for listing, or that result in
the destruction or adverse modification of proposed critical habitat.
If a proposed species is ultimately listed, Federal agencies must
consult on any action they authorize, fund, or carry out if those
actions may affect the listed species or its critical habitat. Examples
of Federal actions that may affect the Hawaiian insular false killer
whale DPS include, but are not limited to: Alternative energy projects,
discharge of pollution from point sources, non-point source pollution,
contaminated waste and plastic disposal, dredging, pile-driving, water
quality standards, vessel traffic, aquaculture facilities, military
activities, and fisheries management practices.
Critical Habitat
Critical habitat is defined in section 3 of the ESA as: ``(i) The
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the provisions of section 1533
of this title, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protection; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed in accordance with the provisions of 1533 of this
title, upon a determination by the Secretary that such areas are
essential for the conservation of the species'' (16 U.S.C. 1532(5)(A)).
``Conservation'' means the use of all methods and procedures needed to
bring the species to the point at which listing under the ESA is no
longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA
requires that, to the maximum extent prudent and determinable, critical
habitat be designated concurrently with the final listing of a species
(16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be
based on the best scientific data available and must take into
consideration the economic, national security, and other relevant
impacts of specifying any particular area as critical habitat.
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure that they do not fund, authorize, or carry
out any actions that are likely to destroy or adversely modify that
habitat. This requirement is in addition to the section 7 requirement
that Federal agencies ensure that their actions do not jeopardize the
continued existence of listed species.
At this time, critical habitat is not determinable for the Hawaiian
insular false killer whale DPS. We are currently compiling information
to prepare a critical habitat proposal for the Hawaiian insular false
killer whale DPS in a separate rulemaking. Therefore, we seek public
input and information to assist in gathering and analyzing the best
available scientific data to support a critical habitat designation. We
will continue to meet with co-managers and other stakeholders to review
this information and the overall designation process. We will then
initiate rulemaking with the publication of a proposed designation of
critical habitat in the Federal Register, opening a period for public
comment and the opportunity for public hearings.
Joint NMFS/FWS regulations for listing endangered and threatened
species and designating critical habitat at 50 CFR 424.12(2)(b) state
that the agency ``shall consider those physical and biological features
that are essential to the conservation of a given species and that may
require special management considerations or protection.'' Pursuant to
the regulations, such requirements include, but are not limited to the
following: (1) Space for individual and population growth, and for
normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species. The regulations also state that
the agency shall focus on the principal biological or physical
essential features within the specific areas considered for
designation. These essential features may include, but are not limited
to: ``roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or quantity, host species or
plant pollinator, geological formation, vegetation type, tide, and
specific soil types.''
Take Prohibitions
Because we are proposing to list this species as endangered, all of
the take prohibitions of section 9(a)(1) of the ESA will apply. These
include prohibitions against the import, export, use in foreign
commerce, or ``take'' of the species. ``Take'' is defined under the ESA
as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or attempt to engage in any such conduct.'' These
prohibitions apply to all persons subject to the jurisdiction of the
U.S., including in the U.S. or on the high seas.
Role of Peer Review
The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. 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 of peer
review planning, and opportunities for public participation. The OMB
Bulletin, implemented under
[[Page 70186]]
the Information Quality Act (Pub. L. 106-554), is intended to enhance
the quality and credibility of the Federal government's scientific
information, and applies to influential or highly influential
scientific information disseminated on or after June 16, 2005. To
satisfy our requirements under the OMB Bulletin, the BRT obtained
independent peer review of the draft status review report. Independent
specialists were selected from the academic and scientific community,
Federal and state agencies, and the private sector for this review. All
peer reviewer comments were addressed prior to dissemination of the
final status review report and publication of this proposed rule.
On July 1, 1994, the NMFS and USFWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270). The intent of the peer review policy is
to ensure that listings are based on the best scientific and commercial
data available. Prior to a final listing, NMFS will solicit the expert
opinions of three qualified specialists selected from the academic and
scientific community, Federal and state agencies, and the private
sector on listing recommendations to ensure the best biological and
commercial information is being used in the decisionmaking process, as
well as to ensure that reviews by recognized experts are incorporated
into the review process of rulemakings developed in accordance with the
requirements of the ESA.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
The intent of identifying those activities that would constitute a
violation of section 9 of the ESA is to increase public awareness of
the effect of this listing on proposed and ongoing activities within
the species' range. We will identify, to the extent known at the time
of the final rule, specific activities that will not be considered
likely to result in violation of section 9, as well as activities that
will be considered likely to result in violation. Activities that we
currently believe could result in violation of section 9 prohibitions
against ``take'' of the Hawaiian insular false killer whale DPS
include, but are not limited to, the following: (1) Importation, (2)
exportation, (3) take, (4) sale, and (5) delivery that directly or
indirectly affect endangered species. These prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Public Comments Solicited on Listing
To ensure that the final action resulting from this proposal will
be as accurate and effective as possible, we solicit comments and
suggestions from the public, other governmental agencies, the
scientific community, industry, environmental groups, and any other
interested parties. Comments are encouraged on this proposal (See DATES
and ADDRESSES). Specifically, we are interested in 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 Hawaiian 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 Hawaiian insular false killer whale DPS.
Public Comments Solicited on Critical Habitat
We request quantitative evaluations describing the quality and
extent of habitats for the Hawaiian insular false killer whale DPS as
well as information on areas that may qualify as critical habitat for
the proposed DPS. Specific areas that include the physical and
biological features essential to the conservation of the DPS, where
such features may require special management considerations or
protection, should be identified. We also solicit biological and
economic information relevant to making a critical habitat designation
for the insular DPS. ESA implementing regulations at 50 CFR 424.12(h)
specify that critical habitat shall not be designated within foreign
countries or in other areas outside of U.S. jurisdiction. Therefore, we
request information only on potential areas of critical habitat within
the U.S. or waters within U.S. jurisdiction.
Section 4(b)(2) of the ESA requires the Secretary to consider the
``economic impact, impact on national security, and any other relevant
impact,'' of designating a particular area as critical habitat. For
this process, section 4(b)(2) authorizes the Secretary to exclude from
a critical habitat designation those particular areas where the
Secretary finds that the benefits of exclusion outweigh the benefits of
designation, unless excluding that area will result in extinction of
the species. We seek information regarding the conservation benefits of
designating areas within the main Hawaiian Islands as critical habitat.
We also seek information on the economic and other benefits of
excluding areas from the critical habitat designation, and the economic
and other benefits of including an area as part of the critical habitat
designation. In keeping with the guidance provided by the OMB (2000;
2003), we seek information that would allow us to monetize these
effects to the extent possible, as well as information on qualitative
impacts to economic values. We also seek information on impacts to
national security and any other relevant impacts of designating
critical habitat in these areas.
Data reviewed may include, but are not limited to: (1) Scientific
or commercial publications; (2) administrative reports, maps or other
graphic materials; (3) information received from experts; and (4)
comments from interested parties. Comments and data particularly are
sought concerning: (1) Maps and specific information describing the
amount, distribution, and use type (e.g., foraging or migration) of the
Hawaiian insular false killer whale DPS, as well as any additional
information on occupied and unoccupied habitat areas; (2) the reasons
why any habitat should or should not be determined to be critical
habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA; (3)
information regarding the benefits of designating particular areas as
critical habitat; (4) current or planned activities in the areas that
might be proposed for designation and their possible impacts; (5) any
foreseeable economic or other potential impacts resulting from
designation, and in particular, any impacts on small entities; (6)
whether specific unoccupied areas may be essential to provide
additional habitat areas for the conservation of this DPS; and (7)
potential peer reviewers for a proposed critical habitat designation,
including persons with biological and economic expertise relevant to
the species, region, and designation of critical habitat. We seek
information regarding critical habitat for the Hawaiian insular false
killer whale DPS as soon as possible, but no later than February 15,
2011.
Public Hearings
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at
least one public hearing if any person requests one within 45 days of
publication of a proposed rule to list a species. Such hearings provide
the opportunity for interested individuals and parties to give
opinions, exchange information, and engage in a constructive dialogue
[[Page 70187]]
concerning this proposed rule. We encourage the public's involvement in
this matter and therefore have scheduled a public hearing to be held in
Honolulu, Oahu, Hawaii. This public hearing will be held on January 20,
2011, at the McCoy Pavilion at the Ala Moana Park, 1201 Ala Moana Blvd,
Honolulu, HI 96814 from 6:30 to 9 p.m. NMFS will consider requests for
additional public hearings that are made in writing and received (see
ADDRESSES) by January 31, 2011. If additional public hearings are
requested and will be held, details regarding location(s), date(s), and
time(s) will be published in a forthcoming Federal Register notice.
References
A complete list of all references cited herein is available upon
request (see FOR FURTHER INFORMATION CONTACT).
Classification
National Environmental Policy Act
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir.
1981), we have concluded that ESA listing actions are not subject to
the environmental assessment requirements of the National Environmental
Policy Act (See NOAA Administrative Order 216-6).
Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this proposed rule is exempt from review under Executive
Order 12866. This proposed rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction
Act.
Executive Order 13132, Federalism
In accordance with E.O. 13132, we determined that this proposed
rule does not have significant Federalism effects and that a Federalism
assessment is not required. In keeping with the intent of the
Administration and Congress to provide continuing and meaningful
dialogue on issues of mutual state and Federal interest, this proposed
rule will be given to the relevant state agencies in each state in
which the species is believed to occur, and those states will be
invited to comment on this proposal. We have conferred with the state
of Hawaii in the course of assessing the status of the Hawaiian insular
false killer DPS, and considered, among other things, Federal, state,
and local conservation measures. As we proceed, we intend to continue
engaging in informal and formal contacts with the state, and other
affected local or regional entities, giving careful consideration to
all written and oral comments received.
List of Subjects in 50 CFR Part 224
Endangered marine and anadromous species.
Dated: November 10, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 224 is
proposed to be amended as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 224 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
Sec. 224.101 [Amended]
2. In Sec. 224.101, amend paragraph (b) by adding, ``False killer
whale (Pseudorca crassidens), Hawaiian insular distinct population
segment'' in alphabetical order.
[FR Doc. 2010-28843 Filed 11-16-10; 8:45 am]
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