Endangered and Threatened Wildlife; 90-Day Finding on a Petition to List the Insular Population of Hawaiian False Killer Whales as an Endangered Species, 316-319 [E9-31297]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Proposed Rules]
[Pages 316-319]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31297]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 0912161432-91436-01]
RIN 0648-XT37


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
to List the Insular Population of Hawaiian False Killer Whales as an 
Endangered Species

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: 90-day petition finding; request for information.

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SUMMARY: We, NMFS, announce a 90-day finding for a petition to list the 
insular population of Hawaiian false killer whales (Pseudorca 
crassidens) as endangered under the Endangered Species Act (ESA). We 
find that the petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. 
Therefore, we have initiated a status review of the insular population 
of Hawaiian false killer whales to determine if listing under the ESA 
is warranted. To ensure this status review is comprehensive, we solicit 
scientific and commercial information regarding this species (see 
below).

DATES:  Information and comments on the subject action must be received 
by February 4, 2010.

ADDRESSES: You may submit comments, information, or data, identified by 
the Regulation Identifier Number [RIN 0648-XT37], by any one of the 
following methods:
    (1) Electronic Submissions: Submit all electronic information via 
the Federal eRulemaking Portal at https://www.regulations.gov;
    (2) Mail: Assistant Regional Administrator, Protected Resources 
Division, National Marine Fisheries Service, Pacific Islands Regional 
Office, 1601 Kapiolani Boulevard Suite 1110, Honolulu, HI, 96814.
    Instructions: All comments received are a part of the public record 
and may be posted to https://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. NMFS 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.
    Interested persons may obtain a copy of the petition online at the 
NMFS Pacific Islands Regional Office website: https://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html.

FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS, Pacific Islands 
Region, (808) 944-2238; Lance Smith, NMFS, Pacific Islands Region, 
(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 Natural 
Resources Defense Council (NRDC) requesting that the Secretary 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 final 2008 and draft 2009 Stock Assessment 
Reports (SAR) (available at https://www.nmfs.noaa.gov/pr/pdfs/sars/) 
that NMFS has completed as required by the Marine Mammal Protection Act 
(MMPA), Hawaiian false killer whales are divided into a Hawaii Pelagic 
Stock and a Hawaii Insular Stock. NRDC considers the insular population 
of Hawaiian false killer whales and the Hawaii Insular Stock of false 
killer whales to be synonymous.
    NRDC asserts that the insular population of Hawaiian false killer 
whales faces the following threats: (1) mortality and/or serious injury 
from fishing gear; (2) overfishing and prey reductions; (3) potential 
for increased levels of toxic chemicals; (4) ocean acidification; (5) 
potential for acoustic impacts on false killer whale behavior; (6) 
inadequacy of existing regulatory mechanisms; (7) risks inherent to 
small populations; and (8) synergistic and cumulative effects. The 
petition contends that the small population size, evidence of a 
declining population trend, and multiple threats together qualify the 
insular population of Hawaiian false killer whales to be listed as an 
endangered species under the ESA.

ESA Statutory, Regulatory, and Policy Provisions

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531 et seq.) requires, to 
the maximum extent practicable, that within 90 days of the receipt of 
the petition to designate a species as threatened or endangered, the 
Secretary of Commerce (Secretary) make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted. Joint ESA-
implementing regulations between NMFS and the U.S. Fish and Wildlife 
Service (USFWS) (50 CFR 424.14) define ``substantial information'' as 
the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.
    In making a finding on a petition to list a species, the Secretary 
must consider whether the petition: (i) clearly indicates the 
administrative measure recommended, and gives the scientific and any 
common name of the species involved; (ii) contains a detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (iii) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (iv) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from

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authorities, and maps (50 CFR 424.14(b)(2)). To the maximum extent 
practicable, this finding is to be made within 90 days of the date we 
received the petition, and the finding is to be published promptly in 
the Federal Register. When it is found that substantial information 
consistent with the guidelines above is presented in the petition, we 
are required to promptly commence a review of the status of the species 
concerned. Within one (1) year of receipt of the petition, we shall 
conclude the review with a finding as to whether or not the petitioned 
action is warranted.
    Under the ESA, a listing determination may address a species, 
subspecies, or a distinct population segment (DPS) of any vertebrate 
species which interbreeds when mature (16 U.S.C. 1532(16)). In 1996, 
the USFWS and NMFS published the Policy on the Recognition of a 
Distinct Vertebrate Population Segments under the ESA (DPS Policy, 61 
FR 4722; February 7, 1996). This policy clarifies the agencies' 
interpretation of the phrase ``distinct population segment of any 
species of vertebrate fish or wildlife'' (ESA section 3(16)) for the 
purposes of listing, delisting, and reclassifying a species under the 
ESA (61 FR 4722; February 7, 1996). The policy established two criteria 
that must be met for a population or group of populations to be 
considered a DPS: (1) the population segment must be discrete in 
relation to the remainder of the species (or subspecies) to which it 
belongs; and (2) the population segment must be significant to the 
remainder of the species (or subspecies) to which it belongs. A 
population segment may be considered discrete if it satisfies either 
one of the following conditions: (1) it is markedly separated from 
other populations of the same biological 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 across which there is a 
significant difference in exploitation control, habitat management, 
conservation status, or if regulatory mechanisms exist that are 
significant in light of section 4(a)(1) of the ESA. If a population is 
determined to be discrete, the agency must then consider whether it is 
significant to the taxon to which it belongs. Considerations in 
evaluating the significance of a discrete population include: (1) 
persistence of the discrete population in an unusual or unique 
ecological setting for the taxon; (2) evidence that the loss of the 
discrete population segment would cause a significant gap in the 
taxon's range; (3) evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere outside its historical geographical range; or 
(4) evidence that the discrete population has marked genetic 
differences from other populations of the species.
    A species, subspecies, or DPS is ``endangered'' if it is in danger 
of extinction throughout all or a significant portion of its range, or 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA section 3(6) and 3(20), respectively). To determine whether a 
species is threatened or endangered, we conduct a risk analysis to 
evaluate risks based on specific demographic factors (e.g., abundance, 
productivity, spatial structure, and diversity), any quantitative or 
qualitative estimates of overall extinction risk for the species, and 
the relative contribution of identified demographic risks to the 
overall assessed level of extinction risk. Section 4(a)(1) of the ESA 
requires the Secretary of Commerce to determine whether any species is 
endangered or threatened due to of any of the following factors: (1) 
the present or threatened destruction, modification, or curtailment of 
its habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting the species continuing existence. Therefore, 
to the extent possible, we describe the links between these demographic 
risks and these causative section 4(a)(1) factors. Listing 
determinations are based solely on the best available scientific and 
commercial data, after taking into account any efforts being made by 
any state or foreign nation to protect the species.

Analysis of Petition

Does the Petitioned Population Qualify as a DPS?

    As described above, to be considered a DPS under the ESA, a 
population must meet both the ``discreteness'' and ``significance'' 
criteria of the DPS policy. NRDC contends that the insular population 
of Hawaiian false killer whales meets both ``discreteness'' and 
``significance'' criteria, and thus is a DPS under the ESA.
    Discreteness: NRDC states that the insular population of Hawaiian 
false killer whales is markedly separated from other false killer 
whales because it: (1) is behaviorally unique from other false killer 
whales; (2) is genetically distinct from other false killer whales; and 
(3) constitutes a stock under the MMPA. NRDC cites photo-identification 
data from Baird et al. (2008) to support its statement that, while 
false killer whales are considered a wide-ranging pelagic species not 
typically associated with coastal or island habitats, the insular 
Hawaiian false killer whales are the only known long-term, island-
associated false killer whales in the world. NRDC adds that recent 
mitochondrial haplotype data from false killer whales throughout the 
Pacific including Hawaii, the central Indian Ocean, the eastern and 
western Pacific Ocean, and the western Atlantic Ocean indicate that the 
insular population of Hawaiian false killer whales includes genetically 
distinct matrilines (Chivers et al., 2007), and that this suggests 
unique cultural traits (Whitehead, 1998). Finally, NRDC notes that, 
while the analysis of whether a given marine mammal population is 
considered a stock under the MMPA differs from a DPS analysis under the 
DPS Policy, the classification of Hawaii insular false killer whales as 
a stock supports the finding that the population is a listable entity 
under the ESA.
    As described in the final 2008 and draft 2009 SARs for the Hawaii 
Pelagic and Hawaii Insular Stocks of false killer whales, the taxonomy 
of this group is not well understood, due to the very small number of 
genetic samples and lack of other biological information. However, the 
MMPA requires NMFS to use the best available information to delineate 
stock boundaries. The current delineations of the Hawaii Pelagic and 
Hawaii Insular Stocks of false killer whales are based on all currently 
available genetic samples, but only 2 samples are available from each 
stock. As noted in the 2008 and draft 2009 SARs, the boundary between 
these two stocks may be revised as additional information becomes 
available. We will need to review information from SARs for the Hawaii 
Pelagic and Hawaii Insular Stocks of false killer whales (https://www.nmfs.noaa.gov/pr/pdfs/sars/) and any other information we can 
obtain to determine whether this population is discrete from other 
populations of false killer whales. While information on stock 
delineation under the MMPA can be useful for delineating DPSs under the 
ESA, it is important to note, as NRDC has done, that an MMPA

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stock does not necessarily qualify as a DPS under the ESA. MMPA stocks 
do not need to meet a criterion similar to the ``significance'' 
criterion of the DPS Policy.
    Significance: NRDC states that the insular population of Hawaiian 
false killer whales meets the significance criterion of the DPS policy 
because it: (1) occupies a unique ecological setting; and (2) differs 
markedly from other populations of the species in its genetic 
characteristics. Evidence cited in the petition includes the fact that 
the Hawaiian archipelago is the most isolated island group in the 
world, leading to high rates of endemism, or ecologically and 
evolutionarily unique organisms (Briggs, 1961, 1966; Carlquist, 1966). 
They cite Baird et al. (2008) to support the theory that evolution of 
island-associated populations such as this population of false killer 
whales, Bryde's whales, and short-finned pilot whales in the Hawaiian 
archipelago may occur because the central tropical Pacific is 
oligotrophic, the oceanographic influence of the islands increases 
productivity immediately around the islands (Doty and Oguri, 1956; 
Gilmartin and Revelante, 1974; Seki et al., 2002) and reduces the 
spatial and temporal variability in prey availability. Also, the 
insular population of Hawaiian false killer whales is the only 
population of false killer whales known to be residents of an island 
system (Baird et al., 2008). The rest of the species occurs in pelagic 
waters, further indicating that this population occurs in an ecological 
setting that is unusual and unique to the taxon. Finally, the fact that 
individuals from this population are uniquely identifiable by their 
mitochondrial haplotypes indicates that this insular population differs 
markedly from other populations of the species in its genetic 
characteristics.

Is the Insular Population of Hawaiian False Killer Whales Threatened or 
Endangered?

    Abundance and Trend Information: NRDC states that recent abundance 
estimates for this population (Mobley et al., 2000 -121 individuals, 
line-transect aerial survey form 1993-1998; Baird et al., 2005 - 123 
individuals, mark-recapture photo-identification data from 2000-2004) 
indicate that insular false killer whales may have the smallest 
population size of any odontocete species within the Hawaiian Exclusive 
Economic Zone (Barlow, 2006). Additional data cited by NRDC indicate 
that the insular Hawaiian stock of false killer whales has experienced 
a decline within the past one or two decades: (1) the largest group of 
individuals observed in 1989 (470) is larger than the entire estimated 
abundance today; (2) false killer whales represented 17 percent of 
sightings in the 1989 aerial survey and only 1.5 percent in boat-based 
surveys from 2000-2006 (Baird et al., 2008; Reeves et al., 2009); (3) 
group size has declined from a median of 195 individuals in 1989 to a 
median of 15 in boat-based surveys from 2000-2006 (Baird et al., 2008; 
Reeves et al., 2009); (4) aerial surveys within approximately 46 km of 
the Hawaiian coast conducted throughout the 1990s made 18 sightings of 
false killer whales during 239 hours of survey effort (Mobley et al., 
2000; Mobely et al., unpublished); and (5) re-sighting rates of false 
killer whales identified in the 1980s are low compared with rates in 
other species such as pygmy killer whales, Blainville's beaked whales 
and Cuvier's beaked whales, potentially suggesting a reduced survival 
rate in the 1990s (Baird, 2009).
    Our final 2008 and draft 2009 SARs on the Hawaii Insular Stock of 
false killer whales confirms the low population size estimates for this 
population (approximately 120 individuals, with a minimum population 
size of 76 individuals). The draft 2009 SAR also cites evidence 
suggesting that this stock/population has declined in size over the 
past 2 decades.
    Analysis of ESA Section 4(a)(1) Factors: NRDC provided information 
to suggest that the insular population of Hawaiian false killer whales 
may have been and may continue to be threatened by habitat modification 
(mortality and serious injury from fishing gear, overfishing and prey 
reductions, increased levels of toxic chemicals, ocean acidification, 
and noise-producing activities), inadequate regulatory mechanisms, risk 
factors such as its high trophic level, low population density, slow 
growth and large calving interval, and small geographic range, and the 
synergistic and cumulative effects of these threats.
    NRDC states that, from 1994-2005, false killer whales were killed 
or seriously injured at a rate of 0.81 per 1,000 sets in the Hawaii-
based deep-set longline fishery (Forney and Kobayashi, 2007). Our 2008 
SAR states that, between 1994 and 2007, at least 24 false killer whales 
were observed as hooked or entangled in the same fishery. While some of 
these false killer whales could be from the pelagic stock, fin 
disfigurations suggest that near-shore individuals of this population 
experience fisheries interactions and injuries (Baird and Gorgone, 
2005). NRDC states that near-shore commercial and recreational 
fisheries interactions with insular false killer whales also occurs 
(Nitta and Henderson, 1993; Rhodes et al., 2007).
    Observations of large-scale reductions in predatory fish 
populations such as bigeye tuna (NMFS, 2009) and yellowfin tuna (Sibert 
et al., 2006) suggest to NRDC that prey reductions may be impacting the 
insular population of Hawaiian false killer whales.
    NRDC cites Ylitalo et al. (2009) as documenting wide ranges of 
persistent organic pollutants in 9 of 9 samples taken from false killer 
whales from the insular Hawaiian population, with one third of these 
samples containing PCB levels above the safety recommendations 
identified for other species (Kannan et al., 2000).
    While NRDC provides no direct evidence that this population is 
suffering from ocean acidification, it includes a discussion on how 
atmospheric concentrations of CO2 may further endanger this population 
by decreasing the availability of prey by reducing the forage base of 
large game fish such as yellowfin tuna and mahi mahi. Similarly, NRDC 
provides no direct evidence that this population is threatened by 
noise-producing activities, but it provides examples of how beaked 
whales, which vocalize in the same mid-frequencies as false killer 
whales, are negatively impacted by mid-frequency acoustic sources that 
occur in the Hawaiian Islands.
    NRDC provides examples of state and Federal laws that should 
provide for the protection of the insular population of Hawaiian false 
killer whales but do not do so. For example, NRDC notes that the 
applicability of Hawaii statutes and regulations to this insular 
population is limited and none has proven effective in conserving this 
population. Similarly, NRDC notes that we do not presently recognize 
the population as a ``strategic stock'' under the MMPA, and, because we 
have not otherwise decided to address bycatch of the population, the 
insular stock of false killer whales has not benefited from a take 
reduction plan for any of the salient Hawaii fisheries. Regardless, 
they add, the development of a bycatch reduction plan would not address 
other threats to the stock, such as overfishing of its principal prey 
species, toxic contamination, and direct shootings of animals by local 
fishers. The Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA) also provides some authority to protect marine mammal species, 
but NRDC states that it does not mandate the use of regulatory 
mechanisms adequate to conserve the

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false killer whale because its reach is limited, changes made to the 
longline fisheries managed under the MSFCMA have not proven adequate to 
prevent the hooking or entanglement of insular false killer whales, and 
it has not been successful in preventing the depletion of bigeye tuna, 
yellowfin tuna, and mahi mahi, primary prey for the insular stock of 
false killer whales.
    In discussing the risks to small populations, NRDC notes that small 
populations are particularly vulnerable to extinction due to 
demographic and environmental stochasticity, the risks of local 
catastrophes, slower rates of adaptation, deleterious effects of 
inbreeding, and ``mutational meltdown'' (genetic load that arises from 
expression of harmful alleles). NRDC emphasizes the Allee effect, also 
known as depensation, as causing a decline in per capita reproduction 
at low population densities.
    Finally, NRDC discusses the potential cumulative and synergistic 
impacts on the population, noting that some of these threats may have 
significant sublethal effects (e.g., contamination with persistent 
organochlorine pollutants), they may also contribute cumulatively 
towards reduced survival and reproductive rates (e.g., decline in 
reproductive rate from toxic contamination combined with the Allee 
effect) in false killer whales.

Petition Finding

    We have reviewed the petition, the literature cited in the 
petition, and other literature and information readily available in our 
files. Based on our review, we find that the petition satisfies the 
requirements of 50 CFR 424.14(b)(2) because it: (i) clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (ii) contains a detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (iii) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (iv) is accompanied by the 
appropriate supporting documentation in the form of citations to 
journals that are readily accessible. This information would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted. Therefore, we have determined that the petition, the 
literature cited in the petition, and other literature and information 
readily available in our files indicate that the petitioned action may 
be warranted.

Request for Information

    As a result of the finding, we will commence a status review of 
Hawaiian false killer whales to determine: (1) if the insular 
population of Hawaiian false killer whales is a DPS under the ESA; and, 
if so (2) the risk of extinction to this DPS. Based on the results of 
the status review, we will then determine whether listing the insular 
population of Hawaiian false killer whales under the ESA is warranted. 
We intend that any final action resulting from this status review be as 
accurate and as effective as possible. Therefore, we are opening a 30-
day public comment period to solicit suggestions and information from 
the public, government agencies, the scientific community, industry, 
and any other interested parties on the status of the insular 
population of Hawaiian false killer whales. Specifically, we solicit 
information on the following areas:
    (1) Taxonomy, abundance, reproductive success, age structure, 
distribution, habitat selection, food habits, population density and 
trends, and habitat trends;
    (2) Effects of other potential threat factors, including climate 
change, ocean acidification, acoustic impacts, and persistent organic 
pollutants;
    (3) Interactions with fisheries, including longline, unregulated 
nearshore, and shortline fisheries;
    (4) Unconfirmed interactions from local fishermen; and
    (5) Effects of management on the insular population of Hawaiian 
false killer whales.
    We request that all data and information be accompanied by 
supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications. Please send any comments to the 
ADDRESSES listed above. We will base our findings on a review of best 
available scientific and commercial information available, including 
all information received during the public comment period.

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 29, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E9-31297 Filed 1-4-10; 8:45 am]
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