Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae, 22303-22356 [2015-09010]

Download as PDF Vol. 80 Tuesday, No. 76 April 21, 2015 Part III Department of Commerce tkelley on DSK3SPTVN1PROD with PROPOSALS2 National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Proposed Revision of Species-Wide Listing; Proposed Rule VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21APP2.SGM 21APP2 22304 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules hearings, see SUPPLEMENTARY DEPARTMENT OF COMMERCE INFORMATION. National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 130708594–5298–02 ] RIN 0648–XC751 Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Proposed Revision of Species-Wide Listing National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; 12-month findings. AGENCY: We, NMFS, have completed a comprehensive status review of the humpback whale (Megaptera novaeangliae) under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.) and announce a proposal to revise the listing status of the species. We propose to divide the globally listed endangered species into 14 distinct population segments (DPSs), remove the current species-level listing, and in its place list 2 DPSs as endangered and 2 DPSs as threatened. The remaining 10 DPSs are not proposed for listing based on their current statuses. This proposal also constitutes a negative 12-month finding on a petition to delineate and ‘‘delist’’ a DPS of humpback whales spanning the entire North Pacific and a positive 12-month finding on a petition to delineate and ‘‘delist’’ a DPS in the Central North Pacific (Hawaii breeding population). At this time, we do not propose to designate critical habitat for the two listed DPSs that occur in U.S. waters (Western North Pacific, Central America) because it is not currently determinable. In order to complete the critical habitat designation process, we also solicit information on essential physical and biological features of the habitat of these two DPSs. DATES: Comments must be submitted to NMFS by July 20, 2015. For specific dates of the public hearings, see SUPPLEMENTARY INFORMATION. Requests for additional public hearings must be made in writing and received by June 5, 2015. ADDRESSES: Four public hearings will be held, one each in Juneau, AK, Honolulu, HI, Plymouth, MA, and Virginia Beach, VA. For specific locations of these tkelley on DSK3SPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 You may submit comments, identified by NOAA–NMFS–2015–0035, by any of the following methods: Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal. 1. Go to www.regulations.gov/ #!docketDetail;D= NOAA-NMFS-20150035, 2. Click the ‘‘Comment Now!’’ icon, complete the required fields 3. Enter or attach your comments. —Or— Mail: Submit written comments to Marta Nammack, NMFS, 1315 East-West Highway, Room 13536, Silver Spring, MD 20910. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous). The proposed rule, Status Review report and other materials relating to this proposal can be found on the NMFS Web site at: http://nmfs.noaa.gov/pr/. FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, (301) 427– 8469. SUPPLEMENTARY INFORMATION: On August 12, 2009, we announced the initiation of a status review of the humpback whale to determine whether an endangered listing for the entire species was still appropriate (74 FR 40568). We sought information from the public to inform our review, hired two post-doctoral students to compile the best available scientific and commercial information on the species (Fleming and Jackson, 2011), including the past, present, and foreseeable future threats to this species, and appointed a Biological Review Team (BRT) to analyze that information, make conclusions on extinction risk, and prepare a status review report (Bettridge et al., 2015). On April 16, 2013, we received a petition from the Hawaii Fishermen’s Alliance for Conservation and Tradition, Inc., to classify the North Pacific humpback whale population as a DPS and ‘‘delist’’ the DPS under the Endangered Species Act (ESA). On PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 February 26, 2014, the State of Alaska submitted a petition to delineate the Central North Pacific (Hawaii) stock of the humpback whale as a DPS and remove the DPS from the List of Endangered and Threatened Species under the ESA. After reviewing the petitions, the literature cited in the petitions, and other literature and information available in our files, we found that both petitioned actions may be warranted and issued positive 90-day findings (78 FR 53391, August 29, 2013; 79 FR 36281, June 26, 2014). We extended the deadline for receiving information by 30 days to help us respond to the petition to delist the Central North Pacific population (79 FR 40054; July 11, 2014). We incorporated the consideration of both petitioned actions into the status review. Based on information presented in the status review report, an assessment of the ESA section 4(a)(1) factors, and efforts being made to protect the species, we have determined: (1) 14 populations of the humpback whale meet the DPS policy criteria and are therefore considered to be DPSs; (2) the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs are in danger of extinction throughout their ranges; (3) the Western North Pacific and Central America DPSs are likely to become endangered throughout all of their ranges in the foreseeable future; and (4) the West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs are not in danger of extinction throughout all or a significant portion of their ranges or likely to become so in the foreseeable future. Accordingly, we issue a proposed rule to revise the species-wide listing of the humpback whale by replacing it with 2 endangered species listings (Cape Verde Islands/Northwest Africa and Arabian Sea DPSs) and 2 threatened species listings (Western North Pacific and Central America DPSs). We solicit comments on these proposed actions. We also propose to extend the ESA section 9 prohibitions to the 2 threatened DPSs. Outline ESA Statutory Provisions, Regulations, and Policy Considerations Distinct Population Segment Policy ‘‘Foreseeable Future’’ ‘‘Significant Portion of its Range’’ Background Behavior Feeding Reproduction Natural Mortality Status Review Report Humpback Whale Subspecies E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Reproductive Seasonality Behavior Color patterns Genetics Subspecies Discussion and Conclusions Distinct Population Segment Analysis, By Subspecies North Atlantic Overview Discreteness Significance North Pacific Overview Discreteness Significance Southern Hemisphere Overview: Discreteness Significance Extinction Risk Assessment Abundance and Trends for Each DPS West Indies DPS Cape Verde Islands/Northwest Africa DPS Western North Pacific DPS Hawaii DPS Mexico DPS Central America DPS Brazil DPS Gabon/Southwest Africa DPS Southeast Africa/Madagascar DPS West Australia DPS East Australia DPS Oceania DPS Southeastern Pacific DPS Arabian Sea DPS Summary of Abundance and Trends Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale DPSs Section 4(a)(1) Factors Applicable to All DPSs A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes: C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence West Indies DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Cape Verde Islands/Northwest Africa DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Western North Pacific DPS VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Hawaii DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Mexico DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Central America DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Brazil DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Gabon/Southwest Africa DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Southeast Africa/Madagascar DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 22305 B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence West Australia DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence East Australia DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Oceania DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Southeastern Pacific DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Arabian Sea DPS A. The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes C. Disease or Predation D. Inadequacy of Existing Regulatory Mechanisms E. Other Natural or Manmade Factors Affecting its Continued Existence Ongoing Conservation Efforts Rationale for Revising the Current Global Listing and Replacing It with Listings of DPSs Conclusions on the Status of Each DPS under the ESA Endangered DPSs Threatened DPSs E:\FR\FM\21APP2.SGM 21APP2 22306 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 DPSs Not Warranted for Listing under the ESA Post-delisting Monitoring Plan Description of Proposed Regulatory Changes Prohibitions and Protective Measures Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA Effects of this Rulemaking Peer Review Critical Habitat Public Comments Solicited Public Hearings Classification National Environmental Policy Act (NEPA) Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork Reduction Act E.O. 13132, Federalism E.O. 13175, Consultation and Coordination with Indian Tribal Governments ESA Statutory Provisions, Regulations, and Policy Considerations Pursuant to the ESA, any interested person may petition to list or delist a species, subspecies, or DPS of a vertebrate species that interbreeds when mature (5 U.S.C. 553(e), 16 U.S.C. 1533(b)(3)(A)). ESA-implementing regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS) also establish procedures for receiving and considering petitions to revise the lists of endangered and threatened species and for conducting periodic reviews of listed species (50 CFR 424.01). Once we receive a petition to delist a species, the ESA requires the Secretary of Commerce (Secretary) to make a finding on whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted (16 U.S.C. 1533(b)(3)(A)). In the context of a petition to delist a species, the ESAimplementing regulations provide that ‘‘substantial information’’ is that amount of information that would lead a reasonable person to believe that delisting may be warranted (50 CFR 424.14(b)(1)). In determining whether substantial information exists, we take into account several factors, in light of any information noted in the petition or otherwise readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)) and published promptly in the Federal Register. Section 4(b)(3)(B) of the ESA requires that, when a petition to revise the List of Endangered and Threatened Wildlife and Plants is found to present substantial scientific and commercial information, we make a finding that the petitioned action is (a) not warranted, (b) warranted, or (c) warranted but precluded from immediate proposal by VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 other pending proposals of higher priority. This finding (the ‘‘12-month finding’’) is to be made within 1 year of the date the petition was received, and the finding is to be published promptly in the Federal Register. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries. Section 3 of the ESA defines an endangered species as ‘‘any species which is in danger of extinction throughout all or a significant portion of its range’’ and a threatened species as one ‘‘which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ Thus, we interpret an ‘‘endangered species’’ to be one that is presently in danger of extinction. A ‘‘threatened species,’’ on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). In determining whether to reclassify or delist a species, subspecies, or DPS, the ESA and implementing regulations require that we consider the following ESA section 4(a)(1) factors in relation to the definitions of ‘‘endangered species’’ or ‘‘threatened species’’ (16 U.S.C. 1533(a)(1) and 1533(c)(2); 50 CFR 424.11(d)): The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization of the species for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting a species’ continued existence. These are the same factors that we must consider when making an initial determination whether to list a species, subspecies, or DPS as threatened or endangered under the ESA. Section 4(b)(1)(A) of the ESA requires us to make listing determinations 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 efforts being made by any State or foreign nation or political subdivision thereof to protect the species. In evaluating the efficacy of protective efforts not yet implemented or not yet proven to be effective, we rely on the Policy on Evaluation of Conservation Efforts When Making Listing Decisions (‘‘PECE’’; 68 FR 15100; March 28, 2003) issued jointly by NMFS and the FWS PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 (together, the Services). The ESA regulations require that a species listed as endangered or threatened be removed from the list if the best scientific or commercial data available indicate that the species is no longer endangered or threatened because it has recovered (50 CFR 424.11(d)). Distinct Population Segment Policy To be considered for listing under the ESA, a group of organisms must constitute a ‘‘species,’’ which the ESA defines to include ‘‘. . . any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature’’ (16 U.S.C. 1532 (16)). Thus, an ESA listing (or delisting) determination can address a species, subspecies, or a DPS of a vertebrate species. On February 7, 1996, the Services adopted a policy describing what constitutes a DPS of a taxonomic species (61 FR 4722). The joint DPS policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) 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. (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 considered discrete under one or more of the above conditions, its biological and ecological significance is then considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSs be used ‘‘sparingly’’ while encouraging the conservation of genetic diversity. This consideration may include, but is not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon; E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules (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; or (4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. ‘‘Foreseeable Future’’ To determine whether listing of a species is warranted, a status review must conclude that the species is ‘‘in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range.’’ The ESA uses the term ‘‘foreseeable future’’ to refer to the time over which identified threats are likely to impact the biological status of the species. The duration of the ‘‘foreseeable future’’ in any circumstance is inherently fact-specific and depends on the particular kinds of threats, the life-history characteristics, and the specific habitat requirements for the species under consideration. The existence of a threat to a species and the species’ response to that threat are not, in general, equally predictable or foreseeable. Hence, in some cases, the ability to foresee a threat to a species is greater than the ability to foresee the species’ exact response, or the timeframe of such a response, to that threat. For purposes of making these 12month findings, the relevant consideration is whether the species’ population response (i.e., abundance, productivity, spatial distribution, diversity) is foreseeable, not merely whether the emergence of a threat is foreseeable. The foreseeable future extends only as far as we are able to reliably predict the species’ population response to a particular threat. We consider the extent to which we can foresee the species’ response to each threat. ‘‘Significant Portion of its Range’’ tkelley on DSK3SPTVN1PROD with PROPOSALS2 NMFS and FWS recently published a final policy to clarify the interpretation of the phrase ‘‘significant portion of the range’’ in the ESA definitions of ‘‘threatened species’’ and ‘‘endangered species’’ (79 FR 37577; July 1, 2014) (Final Policy). The Final Policy reads: Consequences of a species being endangered or threatened throughout a significant portion of its range: The phrase ‘‘significant portion of its range’’ in the Act’s definitions of ‘‘endangered species’’ and ‘‘threatened species’’ provides an independent basis for listing. Thus, there are two situations (or factual bases) under which a species would qualify for listing: A species VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 may be endangered or threatened throughout all of its range or a species may be endangered or threatened throughout only a significant portion of its range. If a species is found to be endangered or threatened throughout only a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act’s protections apply to all individuals of the species wherever found. Significant: A portion of the range of a species is ‘‘significant’’ if the species is not currently endangered or threatened throughout its range, but the portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. Range: The range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species’ life cycle, even if they are not used regularly (e.g., seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but it cannot constitute a significant portion of a species’ range. Reconciling SPR with DPS authority: If the species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies. The Final Policy explains that it is necessary to fully evaluate a portion for potential listing under the ‘‘significant portion of its range’’ authority only if substantial information indicates that the members of the species in a particular area are likely both to meet the test for biological significance and to be currently endangered or threatened in that area. Making this preliminary determination triggers a need for further review, but does not prejudge whether the portion actually meets these standards such that the species should be listed: To identify only those portions that warrant further consideration, we will determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. 79 FR 37586. Thus, the preliminary determination that a portion may be both significant and endangered or threatened merely requires NMFS to engage in a more PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 22307 detailed analysis to determine whether the standards are actually met. Id. at 37587. Unless both are met, listing is not warranted. The Final Policy explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question. Id. (‘‘[I]f we determine that a portion of the range is not ‘‘significant,’’ we will not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we will not need to determine if that portion was ‘‘significant.’’). Thus, if the answer to the first question is negative—whether in regard to the significance question or the status question—then the analysis concludes and listing is not warranted. Background The humpback whale (Megaptera novaeangliae) was listed as endangered in 1970 under the Endangered Species Conservation Act of 1969, the precursor to the ESA. When the ESA was enacted in 1973, the humpback whale was transferred to the List of Endangered and Threatened Wildlife and Plants, retaining endangered status, and, because of its endangered ESA status, was considered ‘‘depleted’’ under the Marine Mammal Protection Act (MMPA). NMFS issued a recovery plan for the humpback whale in 1991, and its long-term numerical goal was to increase humpback whale populations to at least 60 percent of the number existing before commercial exploitation or of current environmental carrying capacity. The recovery team recognized that those levels could not then be determined, so in the meantime, the interim goal of the recovery plan was to double the population size of extant populations within the next 20 years (http://www.nmfs.noaa.gov/pr/pdfs/ recovery/whale_humpback.pdf). In fact, the historical size of humpback whale populations continues to be uncertain (Ruegg et al., 2013, and references therein; Bettridge et al., 2015). The taxonomy, life history, and ecology of the humpback whale are thoroughly reviewed in Fleming and Jackson (2011) and summarized in the BRT’s status review report (Bettridge et al., 2015; available at http:// www.nmfs.noaa.gov/pr/species/ statusreviews.htm). The humpback whale is a large baleen whale of the E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22308 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules family Balaenopteridae. It is found around the world in all oceans. The humpback whale has long pectoral flippers, distinct ventral fluke patterning, dark dorsal coloration, a highly varied acoustic call (termed ‘song’), and a diverse repertoire of surface behaviors. Its body coloration is primarily dark grey, but individuals have a variable amount of white on their pectoral fins, flukes, and belly. This variation is so distinctive that the pigmentation pattern on the undersides of their flukes is used to identify individual whales. Coloring of the ventral surface varies from white to marbled to fully black. Dorsal surfaces of humpback whale pectoral flippers are typically white in the North Atlantic and black in the North Pacific (Perrin et al., 2002), and the flippers are about one-third of the total body length. Similar to all baleen whales, body lengths differ between the sexes, with adult females being approximately 1– 1.5m longer than males. The humpback whale reaches a maximum of 16–17 m, although lengths of 14–15 m are more typical. Adult body weights in excess of 40 tons make them one of the largest mammals on earth (Ohsumi, 1966). With one exception, humpback whales are highly migratory, spending spring, summer, and fall feeding in temperate or high-latitude areas of the North Atlantic, North Pacific, and Southern Ocean and migrating to the tropics in winter to breed and calve. The Arabian Sea humpback whale population does not migrate extensively, remaining in tropical waters year-round (Baldwin, 2000; Minton et al., 2010b). There are 14 known breeding grounds for humpback whales, and there may be other breeding grounds of unknown location. Whales using the unknown breeding grounds may be associated to some degree with whales from the known breeding grounds. Whales from all known breeding grounds except the Arabian Sea migrate to summer feeding areas. Humpback whales have high site fidelity to both the winter breeding grounds and summer feeding grounds. Whales from a single breeding ground may migrate to different feeding grounds. In addition, feeding grounds may host whales from different breeding grounds. Because humpback whales can be individually identified through unique fluke patterns, researchers are able to match photos of whales on breeding grounds and feeding grounds, thereby tracing their migrations. Although the patterns of migration and distribution are clear for many breeding groups, researchers have VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 identified whales on some feeding grounds that have never been sighted in any of the known breeding grounds. Depending on the strength of the evidence, scientists may infer that an additional breeding population exists but that its breeding grounds are unknown. We explore this subject further in the ‘‘Distinct Population Segment Analysis, By Subspecies’’ section below. Behavior Humpback whales travel great distances during migration, the farthest migration of any mammal. The longest recorded migration between a breeding area and a feeding area was 5,160 miles (8,300 km). This trek from Costa Rica to Antarctica was completed by seven individuals, including a calf (Rasmussen et al., 2007). One of the more closely studied routes has shown whales making the 3,000-mile (4,830 km) trip between Alaska and Hawaii in as little as 36 days (Allen and Angliss, 2010). During summer and fall, humpback whales spend much of their time feeding and building fat stores for winter. In their low-latitude wintering grounds, humpback whales congregate and are believed to engage in mating and other social activities. Humpback whales are generally polygynous, with males exhibiting competitive behavior on wintering grounds (Tyack, 1981; Baker and Herman, 1984; Clapham, 1996). A complex behavioral repertoire exhibited in these areas can include aggressive and antagonistic behavior, such as chasing, vocal and bubble displays, horizontal tail thrashing, and rear body thrashing. Males within these groups also make physical contact, striking or surfacing on top of one another. Also on wintering grounds, males sing complex songs that can last up to 20 minutes and may be heard up to 20 miles (30 km) away (Clapham and Mattila, 1990; Cato, 1991). A male may sing for hours, repeating the song numerous times. All males in a population sing the same song, but that song continually evolves over time (Darling and Sousa-Lima, 2005). Humpback whale singing has been studied for decades, but its function remains in dispute. Humpback whales are a favorite of whale watchers, as the species frequently performs aerial displays, including breaching, lobtailing, and flipper slapping, the purposes of which are not well understood. Diving behavior varies by season, with average lengths of dives ranging from <5 minutes in summer to 10–15 minutes PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 (and sometimes more than 30 minutes) in winter months (Clapham and Mead, 1999). Typically, humpback whale groups are small (e.g., <10 individuals, but can vary depending on social context and season), and associations between individuals do not last long, with the exception of the mother/calf pairs (Clapham and Mead, 1999). Feeding Humpback whales have a diverse diet that varies slightly across feeding areas. The species is known to feed on both small schooling fish and on euphausiids (krill). Known prey organisms include species representing Clupea (herring), Scomber (mackerel), Ammodytes (sand lance), Sardinops (sardine), Engraulis (anchovy), Mallotus (capelin), and krills such as Euphausia, Thysanoessa, and Meganyctiphanes (Baker, 1985; Geraci et al., 1989; Clapham et al., 1997). Humpback whales also exhibit flexible feeding strategies, sometimes foraging alone and sometimes cooperatively (Clapham, 1993). During the winter, humpback whales subsist on stored fat and likely feed little or not at all. In the Northern Hemisphere, feeding behavior is varied and frequently features novel capture methods involving the creation of bubble structures to trap and corral fish; bubble nets, clouds, and curtains can be observed when humpback whales are feeding on schooling fish (Hain et al., 1982). Lobtailing and repeated underwater ‘looping’ movements (referred to as kick feeding) have also been observed during surface feeding events, and it may be that certain feeding behaviors are spread through the population by cultural transmission (Weinrich et al., 1992; Friedlaender et al., 2006). On Stellwagen Bank, in the Gulf of Maine, repeated side rolls have been recorded when whales were near the bottom, which likely serves to startle prey out of the substrate for better foraging (Friedlaender et al., 2009). In many locations, feeding in the water column can vary with time of day, with whales bottom feeding at night and surface feeding near dawn (Friedlaender et al., 2009). Humpback whales are ‘gulp’ or ‘lunge’ feeders, capturing large mouthfuls of prey during feeding rather than continuously filtering food, as may be observed in some other large baleen whales (Ingebrigtsen, 1929). In the Southern Hemisphere, only one style of foraging (‘lunge’ feeding) has been reported. When lunge feeding, whales advance on prey with their mouths wide open, then close their mouths around the prey and trap them by forcing engulfed water out past the baleen E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 plates. Southern Hemisphere humpback whales forage in the Antarctic circumpolar current, feeding almost exclusively on Antarctic krill (Euphausia superba) (Matthews, 1937; Mackintosh, 1965; Kawamura, 1994). Stomach content analysis from hunted whales taken in sub-tropical waters and on migratory routes indicated that stomachs were nearly always empty (Chittleborough, 1965a). Infrequent sightings of feeding activity and stomach content data suggest that some individuals may feed opportunistically during the southward migration toward Antarctic waters (Matthews, 1932; Dawbin, 1956; Kawamura, 1980). In the Southern Ocean, Antarctic krill tend to be most highly concentrated around marginal sea ice zones, where they feed on sea ice algae. As a result, Southern Hemisphere humpback whale distribution is linked to regions of marginal sea ice (Friedlaender et al., 2006) and zones of high euphausiid density (Murase et al., 2002), with foraging mainly concentrated in the upper 100m of the water column (Dolphin, 1987; Friedlaender et al., 2006). There is evidence of a positive relationship between prey density and humpback whale abundance (Friedlaender et al., 2006). Reproduction The mating system of humpback whales is generally thought to be maledominance polygyny, also described as a ‘floating lek’ (Clapham, 1996). In this system, multiple males compete for individual females and exhibit competitive behavior. Humpback whale song is a long, complex vocalization (Payne and McVay, 1971) produced by males on the winter breeding grounds, and also less commonly during migration (Clapham and Mattila, 1990; Cato, 1991) and on feeding grounds (Clark and Clapham, 2004b). The exact function has not been determined, but behavioral studies suggest that song is used to advertise for females, and/or to establish dominance among males ´ ´ (Tyack, 1981; Darling and Berube, 2001; Darling et al., 2006). It is widely believed that, while occasional mating may occur on feeding grounds or on migration, the great majority of mating and conceptions take place in winter breeding areas (Clapham, 1996; Clark and Clapham, 2004a). Breeding in the Northern and Southern Hemisphere populations is out of phase by approximately 6 months, corresponding to their respective winter periods. Sexual maturity of humpback whales in the Northern Hemisphere occurs at approximately 5–11 years of age, and VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 appears to vary both within and among populations (Clapham, 1992; Gabriele et al., 2007b; Robbins, 2007). Average age of sexual maturity in the Southern Hemisphere is estimated to be 9–11 years. In the Northern Hemisphere, calving intervals are between 1 and 5 years, though 2–3 years appears to be most common (Wiley and Clapham, 1993; Steiger and Calambokidis, 2000). Estimated mean calving rates are between 0.38 and 0.50 calves per mature female per year (Clapham and Mayo, 1990; Straley et al., 1994; Steiger and Calambokidis, 2000) and reproduction is annually variable (Robbins, 2007). In the Southern Hemisphere, most information on humpback whale population characteristics and life history was obtained during the whaling period. Post-partum ovulation is reasonably common (Chittleborough, 1965a) and inter-birth intervals of a single year have occasionally been recorded. This may be a consequence of early calf mortality; the associated survival rates for annually born calves are unknown in the Southern Hemisphere. Humpback whale gestation is 11–12 months and calves are born in tropical waters (Matthews, 1937). Lactation lasts from 10.5–11 months (Chittleborough, 1965a), weaning begins to occur at about age 6 months, and calves attain maternal independence around the end of their first year (Clapham and Mayo, 1990). Humpback whales exhibit maternally directed fidelity to specific feeding regions (Martin et al., 1984; Baker et al., 1990). The average generation time for humpback whales (the average age of all reproductively active females at carrying capacity) is estimated at 21.5 years (Taylor et al., 2007). Empirically estimated annual rates of population increase range from a low of 0 to 4 percent to a maximum of 12.5 percent for different times and areas throughout the range (Baker et al., 1992; Barlow and Clapham, 1997; Steiger and Calambokidis, 2000; Clapham et al., 2003a); however, Zerbini et al. (2010) concluded that any rate above 11.8 percent per year is biologically implausible for this species. Natural Mortality Annual adult mortality rates have been estimated to be 0.040 (standard error (SE) = 0.008) (Barlow and Clapham, 1997) in the Gulf of Maine and 0.037 (95 percent confidence interval (CI) 0.022–0.056) (Mizroch et al., 2004) in the Hawaiian Islands populations. In the Southern Hemisphere, estimates of annual adult survival rates have been made using PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 22309 photo-identification studies in Hervey Bay, east Australia (1987–2006), and range between 0.87 and 1.00 (Chaloupka et al., 1999). Robbins (2007) estimated calf (0–1 year old) survival for humpback whales in the Gulf of Maine at 0.664 (95 percent CI: 0.517–0.784), which is low compared to other areas. Barlow and Clapham (1997) estimated a theoretical calf mortality rate of 0.125 on the Gulf of Maine feeding ground. Using associations of calves with identified mothers on North Pacific breeding and feeding grounds, Gabriele (2001) estimated mortality of juveniles at 6 months of age to be 0.182 (95 percent CI: 0.023–0.518). Survival of calves (6–12 months) and juveniles (1–5 years) has not been described in detail for the Southern Hemisphere. Killer whales are likely the most common natural predators of humpback whales. Status Review Report The BRT’s status review report compiled the best available scientific and commercial information on: (1) Population structure of humpback whales within the North Pacific, North Atlantic, and Southern Oceans, used to determine whether any populations within these ocean basins meet the DPS policy criteria; (2) the abundance and trend information for each DPS; (3) those ESA section 4(a)(1) factors currently affecting the status of these DPSs; (4) ongoing conservation efforts affecting the status of these DPSs; and (5) the extinction risk of each DPS. See the status review report for further information on the biology and ecology of the humpback whale (Bettridge et al., 2015). Humpback Whale Subspecies The BRT reviewed the best scientific and commercial data available on the humpback whale’s taxonomy and concluded that there are likely three unrecognized subspecies of humpback whale: North Pacific, North Atlantic, and Southern Hemisphere. In reaching this conclusion, the BRT considered available life history, morphological, and genetic information. Humpback whales routinely make extensive migrations between breeding and feeding areas within an ocean basin. Despite this potential for long distance dispersal, there is considerable evidence that dispersal or interbreeding of individuals from different major ocean basins is extremely rare and that whales from the major ocean basins are differentiated by a number of characteristics. Reproductive Seasonality: Humpback whales breed and calve in July– E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22310 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules November in the Southern Hemisphere and in January–May in the Northern Hemisphere (including the Arabian Sea). It is not known if reproductive seasonality in baleen whales is determined genetically or whether it results from a learned behavior (migration to a particular feeding destination) combined with a physiological response to day length. Behavior: The most obvious behavioral difference is that migrations to and from high latitudes are in opposite times of the calendar year for Southern Hemisphere and most Northern Hemisphere populations, following the difference in reproductive seasonality. A Northern Hemisphere exception to this migration pattern is found in the Arabian Sea where a nonmigratory population is found. Although these behavioral differences could be learned, they could also be innate, genetically determined traits. Seasonality in singing and other mating behaviors also follows the differences in reproductive seasonality. Color patterns: Humpback whales in the Southern Hemisphere tend to have much more white pigmentation on their bodies which is especially noticeable laterally (Matthews, 1937; Chittleborough, 1965b). This has been noted in eastern and western Australia, the Coral Sea, and Oceania, but might not be characteristic of all Southern Hemisphere populations. Rosenbaum et al. (1995) ranked ventral fluke coloration patterns from one (nearly all white) to five (nearly all black) and compared whales from several breeding areas. He found that over 80 percent of humpback whales in eastern and western Australia were in Category 1, and that less than 10 percent of whales in three breeding areas in the North Pacific were ranked in that category. Only 36 percent of Southern Hemisphere whales in Colombia were classified in Category 1, but Colombian whales were still, on average, whiter than North Pacific whales. A higher frequency of flippers with white dorsal pigmentations is found in the North Atlantic compared to the North Pacific (Clapham, 2009). Genetics: Baker and MedranoGonzalez (2002) reviewed the worldwide distribution of mtDNA haplotypes.1 They found three major clades (groups consisting of an ancestor 1A mtDNA haplotype is a group of genes, or alleles, that is maternally inherited; genetic differentiation is generally based on allele frequency differences between populations, which are measured by FST or related statistics; FST is a measure of the genetic distance between populations, or difference in the allele frequency between two populations. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 and all its descendants) with significant differences among major ocean basins, though there were no completely fixed differences among these areas. The North Pacific included only the AE and CD clades, the North Atlantic included only the CD and IJ clades, and the Southern Oceans included all three. In a more recent comparison, Jackson et al. (2014) found no shared haplotypes between the North Pacific and North Atlantic. Based on patterns of mtDNA variation, Rosenbaum et al. (2009b) estimated an average migration rate of less than one per generation between the Arabian Sea and neighboring populations in the southern Indian Ocean, and Jackson et al. (2014) also estimated generally <1 migrant per generation among the North Pacific, North Atlantic and Southern Hemisphere populations. Ruegg et al. (2013) also found a high degree of genetic differentiation between samples from the North Atlantic and the Southern Hemisphere. Subspecies Discussion and Conclusions The BRT considered the possibility that humpback whales from different ocean basins might reasonably be considered to belong to different subspecies. Sub-specific taxonomy is relevant to the identification of DPSs because, under the 1996 DPS policy, the discreteness and significance of a potential DPS is evaluated with reference to the taxon (species or subspecies) to which it belongs. In some cases previous BRTs have determined that sub-specific taxonomy has a large influence on DPS structure (e.g., southern resident killer whales—Krahn et al., 2004a)), while in other cases subspecific taxonomy has not been relevant (e.g., steelhead trout DPS—Busby et al., 1996). Rice (1998) reviewed previous subspecies designations for humpback whales. Tomilin (1946) named a Southern Hemisphere subspecies (M. n. lalandii) based on body length, but this length difference was not substantiated in subsequent studies. The populations around Australia and New Zealand were described as another subspecies (M. n. novazelandiae) based on color patterns and length (Ivashin, 1958). Rice (1998) noted that the statistical ability to classify these proposed subspecies is ‘‘not quite as high as is customarily required for division into subspecies’’ and that genetic analyses using restriction-fragment length polymorphisms is not congruent with the proposed regional division. Rice (1998) therefore recommended that Megaptera novaeangliae be considered monotypic. As was summarized above, PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 however, since 1998, additional information has accumulated on the genetic distinctiveness of different geographic populations of humpback whales, and some new subspecies have been proposed (Jackson et al., 2014). One criterion for separation of subspecies is the ability to differentiate 75 percent of individuals found in different geographic regions (Reeves et al., 2004). Based on this criterion, differences in the calendar timing of mating and reproduction could be used to distinguish close to 100 percent of Northern Hemisphere from Southern Hemisphere individuals, but it is not known if this is genetically determined. Based on mtDNA haplotypes that have been identified to date, haplotype could be used to distinguish 100 percent of North Pacific from North Atlantic individuals, but some haplotypes from both ocean basins are shared with the Southern Ocean. Ventral fluke color patterns can be used to correctly differentiate >80 percent of whales in eastern and western Australia from the whales in the North Pacific (Rosenbaum et al., 1995). The BRT also considered the advice of the Committee on Taxonomy of the Society for Marine Mammalogy (SMM). The BRT asked the Committee: ‘‘Are humpback whales (Megaptera novaeangliae) that feed in the North Atlantic, North Pacific, Southern Oceans and Arabian Sea likely to belong to different sub-species?’’ The SMM was asked only for its scientific opinion on the likelihood of the existence of humpback whale subspecies and was not asked to comment on the relevance of their opinion to the identification of DPSs for humpback whales. The SMM chairman summarized responses from members of the SMM: The balance of opinion in the SMM Committee on Taxonomy is that given the evidence on genetics, morphology, distribution and behavior, if a taxonomic revision of the humpback whale were undertaken, it is likely that the North Atlantic, North Pacific and Southern Hemisphere populations would be accorded subspecific status. Whether the Arabian Sea population would merit recognition as a subspecies separate from the Southern Hemisphere whales, with which it is most closely related genetically, is less certain. However, it is clearly geographically isolated and genetically differentiated. Using its structured decision making process (whereby each BRT member distributed 100 likelihood points among different scenarios), the BRT considered the likelihood of a single global species with no subspecies scenario, a threesubspecies scenario (North Atlantic, North Pacific, and Southern E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Hemisphere), and a four-subspecies scenario (North Atlantic, North Pacific, Southern Hemisphere, and Arabian Sea). The BRT’s allocation of likelihood points indicates that in the opinion of the BRT, the most likely scenario is the 3-subspecies scenario. In October 2014, after the BRT report was completed, the SMM updated its species and subspecies list to recognize the North Atlantic, North Pacific, and Southern Hemisphere humpback whale populations as subspecies: Megaptera novaeangliae kuzira (North Pacific), M. n. novaeangliae (North Atlantic) and M. n. australis (Southern Hemisphere) (http://www.marinemammalscience. org/index.php?option=com_content& view=article&id=758&Itemid=340). This update was based on mtDNA and DNA relationships and distribution, as described in Jackson et al. (2014). We therefore consider whether the various humpback whale population segments identified by the BRT satisfy the DPS criteria of discreteness and significance relative to the subspecies to which they each belong: North Atlantic, North Pacific, and Southern Hemisphere subspecies. Distinct Population Segment Analysis, By Subspecies tkelley on DSK3SPTVN1PROD with PROPOSALS2 North Atlantic Overview In the Northern Hemisphere, humpback whales summer in the biologically productive, northern latitudes and travel south to warmer waters in winter to mate and calve. Migratory routes and migratory behavior are likely to be maternally directed (Martin et al., 1984; Baker et al., 1990). Feeding areas are often near or over the continental shelf and are associated with cooler temperatures and oceanographic or topographic features that serve to aggregate prey (Moore et al., 2002; Zerbini et al., 2006a). Primary humpback whale feeding areas in the North Atlantic Ocean range from 42° to 78°N and include waters around Iceland, Norway, and the Barents Sea in the central and eastern North Atlantic Ocean, and western Greenland, Newfoundland, Labrador, the Gulf of St. Lawrence and the Gulf of Maine in the western North Atlantic Ocean. Known breeding areas occur in the West Indies and, to a much lesser extent, around the Cape Verde Islands (Katona and Beard, 1990; Clapham, 1993; Palsb<ll et al., 1997). A relatively small proportion of whales in the North Atlantic Ocean feed in U.S. waters. The predominant breeding and calving area lies in the territorial sea of the Dominican Republic, although whales VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 are also found scattered throughout the rest of the Antilles and coastal waters of Venezuela. The Silver/Navidad/ Mouchoir Bank complex hosts the largest single breeding aggregation of humpback whales in the West Indies. Recently, a few humpback whales have also been found in the Mediterranean Sea but little is known about humpback whale use of this region and there is no evidence of a large humpback whale presence there, either currently or in historical times (Frantzis et al., 2004). There are also sporadic sightings of humpback whales in a wide range of places, including waters offshore from the mid-Atlantic and Southeast United States, in the Gulf of Mexico, and in the waters around Ireland. Bermuda is a known mid-ocean stopover point for humpback whales on their northbound migration (Stone et al., 1987). Discreteness Genetic studies have identified 25 humpback whale haplotypes in the western North Atlantic, 12 haplotypes in eastern North Atlantic samples, and 19 haplotypes in whales that feed during the summer in the Gulf of Maine (Palsb<ll et al., 1995; Larsen, 1996a; Rosenbaum et al., 2002). Humpback whales in the North Atlantic Ocean appear to have higher haplotype diversity than humpback whales in the North Pacific Ocean (Baker and ´ Medrano-Gonzalez, 2002). Haplotype diversity is lowest in populations around Norway and Iceland and higher around the northwestern feeding areas off Greenland, Gulf of St. Lawrence and Gulf of Maine (Baker and Medrano´ Gonzalez, 2002). Observed nucleotide diversity is also higher in the North Atlantic than in the North Pacific (Baker ´ and Medrano-Gonzalez, 2002). Whales that breed in the West Indies and Cape Verde Islands co-mingle in North Atlantic feeding areas. Palsboll et al. (1995) and Valsecchi et al. (1997) found significant (FST= ∼0.04) levels of mtDNA and nuclear genetic variation among North Atlantic feeding areas, suggesting there are genetically distinct breeding areas (there are no published genetic studies directly comparing whales in the West Indies breeding areas with whales in the Cape Verde Islands breeding areas). Photo-ID and genetic matching data suggest no evidence for substructure within the West Indies breeding population (reviewed by Fleming and Jackson (2011)), so this differentiation likely is due to genetic divergence between the West Indies and another North Atlantic breeding population, likely associated PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 22311 with the Cape Verde Islands or possibly other areas in the Northeastern Atlantic. Most of the humpback whales on the western North Atlantic feeding grounds (Gulf of Maine, Gulf of St. Lawrence, West Greenland, and eastern Canada) come from the well-studied West Indies breeding ground (approximately 90 percent) (Clapham et al., 1993; Mattila et al., 2001). Some of the whales from the Iceland and Norway feeding grounds also come from the West Indies breeding grounds, but genetic evidence suggests that most whales from the Iceland and Norway feeding grounds migrate from some other breeding ground. The location of possible breeding grounds of these whales is not well understood, but Clapham et al. (1993) suggest it may be in the eastern tropical Atlantic Ocean. Sighting histories of the Cape Verde Islands whales link them to feeding grounds in the waters off Iceland or Norway (Katona and Beard, 1990; Jann et al., 2003), and the Cape Verde Islands is the only candidate breeding ground from historical whaling records. However, current studies show only a small number of whales in the Cape Verde Islands—far fewer than the nonWest Indies whales known to exist in the northeastern Atlantic. The Cape Verde Islands may therefore be part of a larger breeding area, or there may be a third separate breeding area that is as yet undiscovered (Charif et al., 2001; Reeves et al., 2002). The possibility of a third breeding area unassociated with the Cape Verde Islands is supported by nuclear DNA, as there is a significant degree of heterogeneity in nuclear DNA among populations in the western, central (Iceland) and eastern (Norway) North Atlantic feeding grounds (Larsen, 1996b). The BRT concluded there are two populations of humpback whales in the North Atlantic Ocean meeting the discreteness criteria under the DPS policy—one with breeding grounds in the West Indies and another with breeding grounds near Cape Verde Islands and a possible associated breeding area, likely off Northwest Africa. In particular, whales from the West Indies and the Cape Verde Islands breeding grounds are discrete based on: (1) No photographic matches between individuals using the West Indies and Cape Verde Islands areas (acknowledging that there is a large sample size for the West Indies breeding grounds and a small sample size for the Cape Verde Islands breeding grounds); (2) occupation of both breeding grounds at the same time; (3) evidence from 19th century whaling data of a historically larger population at the Cape Verde Islands than exists today; and (4) genetic E:\FR\FM\21APP2.SGM 21APP2 22312 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 heterogeneity in the feeding grounds indicating that the West Indies is not the only breeding ground. Because the Cape Verde Islands cannot account for the abundance of whales estimated from the eastern North Atlantic feeding grounds that are not documented using the West Indies, there must be an additional breeding area, likely near Northwest Africa, and possibly associated with the Cape Verde Islands. Significance The West Indies breeding ground includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, with the Silver/Navidad/ Mouchoir Bank complex comprising a major breeding ground. Whales from this breeding ground have a feeding range that primarily includes the Gulf of Maine, eastern Canada, and western Greenland. While many West Indies whales also use feeding grounds in the central North Atlantic (Iceland) and eastern North Atlantic (Norway), many whales from these feeding areas appear to winter in another location. The BRT concluded this discrete group of whales is significant to the North Atlantic subspecies due to the significant gap in the breeding range that would occur if it were extirpated. Loss of the West Indies population would result in the loss of humpback whales from all of the western North Atlantic breeding grounds (Caribbean/ West Indies) and feeding grounds (United States, Canada, Greenland). The Cape Verde Islands/Northwest Africa breeding grounds include waters surrounding the Cape Verde Islands as well as an undetermined breeding area in the eastern tropical Atlantic, which may be more geographically diffuse than the West Indies breeding ground. The population of whales breeding in Cape Verde Islands plus this unknown area likely represents the remnants of a historically larger population breeding around Cape Verde Islands and Northwest Africa (Reeves et al., 2002). There is no known overlap in breeding range with North Atlantic humpback whales that breed in the West Indies. As noted above, the BRT determined the population was discrete from the West Indies population based upon genetic evidence that suggests a second breeding ground occupied by whales that feed primarily off Norway and Iceland. It also determined that this population was significant to the North Atlantic subspecies because of the gap that would exist in the breeding range if it were extirpated. We agree with the BRT and we therefore identify two DPSs of the North Atlantic humpback whale subspecies: VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 (1) West Indies DPS; and (2) Cape Verde Islands/Northwest Africa DPS. North Pacific Overview Humpback whales in the North Pacific migrate seasonally from northern latitude feeding areas in summer to lowlatitude breeding areas in winter. Feeding areas are dispersed across the Pacific Rim from California, United States, to Hokkaido, Japan. Within these regions, humpback whales have been observed to spend the majority of their time feeding in coastal waters. Breeding areas in the North Pacific are more geographically separated than the feeding areas and include: (1) Regions offshore of mainland Central America; (2) mainland, Baja Peninsula and the Revillagigedos Islands, Mexico; (3) Hawaii; and (4) Asia including Ogasawara and Okinawa Islands and the Philippines. About half of the humpback whales in the North Pacific Ocean breed and calve in the U.S. waters off Hawaii; more than half of North Pacific Ocean humpback whales feed in U.S. waters. Humpback whales in the North Pacific rarely move between these breeding regions. Strong fidelity to both feeding and breeding sites has been observed, but movements between feeding and breeding areas are complex and varied (Calambokidis et al., 2008). An overall pattern of migration has recently emerged. Asia and Mexico/ Central America are the dominant breeding areas for humpback whales that migrate to feeding areas in lower latitudes and more coastal areas on each side of the Pacific Ocean, such as California and Russia. The Revillagigedo Archipelago and Hawaiian Islands are the primary winter migratory destinations for humpback whales that feed in the more central and higher latitude areas (Calambokidis et al., 2008). However, there are exceptions to this pattern, and it seems that complex population structure and strong site fidelity coexist with lesser known, but potentially high, levels of plasticity in the movements of humpback whales (Salden et al., 1999). Discreteness Baker et al. (2013) recently analyzed genetic variation in a large (n = 2,193) sample of whales from 8 breeding and 10 feeding regions within the North Pacific. The 8 possible breeding regions included the Philippines, Okinawa, Ogasawara, Hawaii, Revillagigedo, Baja California, the Mexican mainland coast, and Central America. In addition, results from Calambokidis et al. (2008) PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 indicate the existence of at least one additional breeding area whose location has not been identified. Overall, the level of genetic divergence among breeding areas at the mtDNA control region was substantial (FST = 0.093). Pairwise estimates of divergence among breeding areas ranged from none (FST = ∼0.000; Philippines vs Okinawa) to very high (FST > 0.2 for Hawaii versus Okinawa and Philippines, and Hawaii versus Central America). In addition to little divergence between Okinawa and the Philippines, the three Mexican areas (mainland coast, Baja California, and Revillagigedos Islands) were not significantly differentiated. In contrast to the mtDNA variation, the breeding areas were less strongly (but still significantly) differentiated at 10 nuclear microsatellite loci (FST = 0.006), suggesting the possibility of some male mediated gene flow among breeding areas. After application of an adjustment for diversity (Hedrick, 2005; Baker et al., 2013), the effect size increased to F’ST = 0.0128 and F’ST = 0.0214 for feeding and breeding grounds, respectively. Of these nine areas, two are likely migratory routes to other locations and might therefore not be primary breeding grounds: the waters off Baja California and the Ogasawara Islands. Similarly, some humpback whales migrating to the Okinawa Islands pass by the Ogasawara Islands, and the Ogasawara Islands are also thought likely to be along the migration route to the unidentified breeding area that was described in Calambokidis et al. (2008). Because of the existence of an unidentified breeding area, the population structure of the western North Pacific populations proved more challenging. Humpback whales in Okinawa were not significantly different in either mtDNA or nDNA from whales in the Philippines (Baker et al., 2013). Mitochondrial DNA and nDNA markers from the pooled populations from Okinawa and the Philippines populations differ significantly from those of humpback whales in the Ogasawara Islands and all other populations (Baker et al., 2013). However, given the likelihood that Ogasawara whales are only passing through en route to two or more migratory destinations, the BRT members concluded that there are likely two discrete populations consisting of an Okinawa/Philippines population and an unknown breeding group, both using the Ogasawara area as a migratory corridor. Given the uncertainty about the location of the other breeding ground, and the use of a common migratory corridor by the known group E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules and the unknown group, we have decided to include the unknown breeding group in the Okinawa/ Philippines population. We refer to this combined discrete population as the Western North Pacific population. The Hawaii population of humpback whales is separated by the greatest geographic distance from neighboring populations and was significantly different from other populations in both frequencies of mtDNA haplotypes and nDNA (microsatellite) alleles (Baker et al., 2013). The BRT therefore concluded that whales wintering in Hawaii constitute a discrete population. In Mexico, available genetic and demographic studies indicate that humpback whales migrating to mainland Mexico and to the Revillagigedos Islands pass by the tip of Baja California. The BRT therefore concluded that humpback whales off Baja California should not be considered a discrete population. Further, the mainland population in Mexico does not differ significantly from the Revillagigedos population in its mtDNA haplotype frequencies (Baker et al., 2013). Photo-identification studies also indicate considerable movement of individuals between mainland and offshore island breeding areas in Mexico (Calambokidis et al., 2008). The BRT therefore concluded that mainland Mexico and the Revillagigedos populations are a single Mexico population discrete from all other populations. In the eastern North Pacific, humpback whales in Central America have a unique mtDNA signature, as reflected in the frequencies of haplotypes (Baker et al., 2008a; Baker et al., 2008b). This frequency composition is significantly different from that in whales from all other breeding grounds in the North Pacific. The BRT concluded that humpback whales in Central America are a discrete population. Thus while the BRT concluded there are five breeding populations of humpback whales in the North Pacific that meet the criteria for being discrete under the DPS Policy guidelines, we propose to identify four: (1) Western North Pacific (includes Okinawa/ Philippines and the unidentified breeding area in the western North Pacific); (2) Hawaii (3) Mexico (includes mainland Mexico and the Revillagigedos Islands); and (4) Central America. Significance In evaluating whether any discrete population differed in its ecological characteristics from others, the BRT VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 weighted ecological differences among feeding areas more heavily than among breeding areas, since it concluded that the ecological characteristics of humpback whales in their breeding ranges were largely similar among populations. In contrast, the BRT concluded whales largely foraging in different large marine ecosystems inhabit different ecological settings and that this is relevant in evaluating the significance of these populations. The BRT stated that, within the North Pacific, the Okinawa/Philippines, Hawaii, Mexico, and Central America populations tend to feed in different marine ecosystems, although there is some overlap. The Western North Pacific population, which feeds in the Western Bering Sea (the Okinawa/ Philippines population) and the Aleutian Islands (the unidentified breeding population), feeds in an ecosystem entirely different from the others in the North Pacific. The BRT also noted that the Central America population’s breeding habitat is ecologically unique for the species as it is the only area where documented geographic overlap of populations that feed in different hemispheres occurs, potentially creating a conduit for genetic exchange between the two hemispheres. While a minority of members believed that this was an example of temporal and geographic overlap rather than a unique ecological setting, we conclude that the Central America population is significant to the ocean-basin based North Pacific subspecies because of its ecologically unique breeding habitat. We agree with the BRT that the Western North Pacific and Central America populations occupy unique ecological settings (unique breeding and feeding grounds for the Western North Pacific, unique breeding habitat for the Central America population), and therefore, they both are significant to the North Pacific subspecies. The BRT noted that in the North Pacific Ocean, loss of the Okinawa/ Philippines population would likely result in a significant gap in the North Pacific feeding range as these individuals are the only breeding population to migrate primarily to Russia, and loss of this population would therefore result in a loss of feeding range along the Russian coast. We concur with this conclusion, but because we have combined the unknown breeding group that feeds in the Aleutian Islands with the Okinawa/ Philippines population, we need to assess whether this combined Western North Pacific population is significant to the ocean-basin based North Pacific PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 22313 subspecies. We conclude that the loss of the Western North Pacific population would result in a significant gap in the range of the North Pacific subspecies because if loss of the Okinawa/ Philippines population would result in a significant gap, then the loss of a larger combined population would, too. The loss of humpback whales from the Hawaii breeding population would result in loss of humpbacks from the Hawaiian Islands, and this would represent a significant gap in the range of the North Pacific subspecies. We conclude that the Western North Pacific and the Hawaii populations both meet the significance criterion of the DPS Policy because loss of these populations would result in a significant gap in the range of the North Pacific subspecies. While the loss of the Mexico or Central America populations would not result in a significant gap in the range of their feeding grounds because their feeding grounds overlap, it would result in a significant gap in their breeding grounds, and therefore, we consider the Mexico and Central America populations also to be significant to the North Pacific subspecies. The BRT discussed whether there was evidence for marked genetic divergence among any of the discrete populations. Although there was not clear agreement on the definition of ‘‘marked,’’ the BRT concluded that strong patterns of genetic differentiation in mtDNA sequence among most of the North Pacific breeding populations indicated marked genetic divergence, consistent with the conclusions in Baker et al. (2013). The overall level of differentiation among breeding populations within the North Pacific (FST = 0.09) was similar to the level of divergence among ocean basins and is consistent with a relatively high degree of divergence of these populations. Further, in reviewing Baker et al. (2013), all populations that we have identified as discrete in the North Pacific are strongly differentiated from each other at the p-value 2 of 0.01 level or better, except for the Central America/ Philippines pair, which are differentiated from each other at p-value of 0.05. Therefore, we agree with the BRT and conclude that all four of the discrete populations we have identified in the North Pacific (Western North Pacific, Hawaii, Mexico, and Central 2 The p-value is the probability of obtaining a test statistic result at least as extreme as the one that was actually observed, assuming that the null hypothesis is true; a small p-value (typically ≤ 0.05) indicates strong evidence against the null hypothesis; a null hypothesis is a general statement or default position that there is no relationship between two measured phenomena. E:\FR\FM\21APP2.SGM 21APP2 22314 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules America) are significant to the North Pacific subspecies because of marked genetic differentiation. Although the petitioned North Pacific population could also satisfy the discreteness and significance criteria of the DPS Policy, there are other plausible and scientifically supported approaches to dividing the species into DPSs. We conclude that our modification of the BRT’s approach for humpback whales in the North Pacific (i.e., combining the unknown breeding group with the Okinawa/Philippines population) is more appropriate to further the purposes of the ESA because it represents a more risk-averse approach with respect to the unknown breeding group. As discussed above, identification of the Western North Pacific, Hawaii, Mexico, and Central America populations as DPSs is supported by the best available scientific and commercial information. We are exercising the discretion afforded to us as an expert agency charged with administering the ESA in the face of conflicting proposals (i.e., petitions to delist North Pacific and Central North Pacific populations) to recognize these four populations as DPSs. Therefore, we will evaluate the status of each of these four DPSs in the North Pacific rather than recognizing a single North Pacific DPS and evaluating its combined status (i.e., the approach offered by the Hawaii Fishermen’s Alliance). The petition to delineate the North Pacific population as a DPS and ‘‘delist’’ it is therefore denied (i.e., the petitioned action is not warranted). The petitioned Central North Pacific population is the same as the Hawaii DPS we have identified; therefore, we will evaluate the status of the Hawaii DPS to determine whether it is warranted for listing. The following populations of the North Pacific humpback whale subspecies meet the discreteness and significance criteria for being a DPS under the DPS Policy: (1) Western North Pacific; (2) Hawaii; (3) Mexico; and (4) Central America. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Southern Hemisphere Overview There are at least eleven breeding grounds identified in the Southern Hemisphere at temperate latitudes: Brazil, Gabon and central West Africa, Mozambique, the Comoros Archipelago, Madagascar, West Australia, East Australia, New Caledonia, Tonga, French Polynesia, and the southeastern Pacific, (Stevick et al., 2006; Zerbini et al., 2006b; Engel and Martin, 2009; IWC, 2011). The Arabian Sea breeding ground VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 is also at a temperate latitude and, while it is in the Northern Hemisphere, we discuss it here because we determined earlier that it was part of the Southern Hemisphere subspecies of the humpback whale. The primary mating/calving ground of humpback whales in the western South Atlantic Ocean is the coast of Brazil. This population migrates to feeding grounds located east of the Scotia Sea near South Georgia and the South Sandwich Archipelagos (Stevick et al., 2006; Zerbini et al., 2006b; Engel et al., 2008; Engel and Martin, 2009; Zerbini et al., 2011). The winter breeding distribution of humpback whales in the southwestern Atlantic (June to December) is concentrated around the Abrolhos Bank region in Brazil (15–18° S.) and 500 km north, along the north coast of Bahia State and Espirito Santo State (Rossi-Santos et al., 2008) and near Salvador and Recife. A humpback whale winter breeding and calving ground is located off central western Africa between ∼6° S. and ∼6° N. in the eastern Atlantic. Periods of peak abundance are found between July and September, with some whales still present as late as December and January ´ ˜ in Angola, Gabon and Sao Tome (Weir, 2007). The Gabon/Southwest Africa region appears to serve a variety of purposes with some individual whales remaining in the area through the year while some use the area for feeding and others for mating (Bettridge et al., 2015). At least three winter breeding aggregations of humpback whales have been suggested in the southwestern Indian Ocean from historical whaling records and contemporary surveys (Wray and Martin, 1983; Best et al., 1998). One is associated with the mainland coastal waters of southeastern Africa, extending from Mozambique (24° S., Findlay et al., 1994) to as far north as Tanzania and southern Kenya (Wamukoya et al., 1996; Berggren et al., 2001; O’Connor et al., 2009). The second is found in the coastal waters of the northern Mozambique Channel Islands (Comoros Archipelago) and the southern Seychelles (Bettridge et al., 2015). The third is associated with the coastal waters of Madagascar (15–25° S.), best described in Antongil Bay on the east coast (Rosenbaum et al., 1997). At least three migratory pathways to Antarctic summer feeding grounds in this region have been proposed using a compilation of data from surveys, whaling and acoustic records and sightings (Best et al., 1998). Humpback whale wintering grounds and coastal migratory routes in the eastern Indian Ocean are located between 15–35° S. along the west coast of Australia, with PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 major calving grounds occurring in the Kimberley Region (15–18° S.) and resting areas on the southern migration at Exmouth Gulf (21° S.) and at Shark Bay (25° S.) (Bannister and Hedley, 2001; Jenner et al., 2001). Humpback whales along the east coast of Australia are thought to breed primarily in waters inside the Great Barrier Reef (16–21° S.) (Chittleborough, 1965; Simmons and Marsh, 1986) and are seen as far north as Murray Island at ∼10° S. (Simmons and Marsh, 1986). Discovery marks and satellite telemetry suggest east Australian whales feed in a broad swath of the Antarctic between 100° E. and 175° W., or that they frequent at least two feeding regions, one due south of eastern Australia stretching to the east beneath New Zealand, and one south of west Australia at ∼100° E. and accessed via migration through Bass Strait. The longitudinal distribution boundaries of humpback whales wintering in Oceania lie between ∼160° E. (west of New Caledonia) and ∼120° W. (east of French Polynesia) and latitudinally between 0° and 30° S. (Reeves et al., 1999), a range that includes American Samoa (United States), the Cook Islands, Fiji, French Polynesia (France), Republic of Kiribati, Nauru, New Caledonia (France), Norfolk Island, New Zealand, Niue, the Independent State of Samoa, Solomon Islands, Tokelau, Kingdom of Tonga, Tuvalu, Vanuatu, Wallis and Futuna (France). The wintertime breeding distribution of humpback whales in the southeastern Pacific (May to November) includes the coastal waters between Panama and northern Peru, with the main wintering areas concentrated in Colombia ´ (Gorgona Island, Malaga Bay and ´ Tribuga Gulf), Panama, and Ecuador. Low densities of whales are also found ´ ´ around the Galapagos Islands (Felix et al., 2006b), and coastal sightings have been made as far north as Costa Rica (Coco Island and Golfo Dulce, 8° N.) (Acevedo and Smultea, 1995; MayCollado et al., 2005). In the summer months, these whales migrate to feeding grounds located in waters off southern Chile, the Magellan Strait, and the Antarctic Peninsula (May-Collado et al., ´ 2005; Felix et al., 2006b; Acevedo et al., 2008). Sightings and survey data suggest that humpback whales in the Arabian Sea are primarily concentrated in the shallow near-shore areas off the coast of Oman, particularly in the Gulf of Masirah and Kuria Muria Islands regions (Minton, 2004); sightings and strandings suggest a population range that encompasses the northern Gulf of E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Aden, the Balochistan coast of Pakistan, and western India and Sri Lanka, with occasional sightings on the Sistan and Baluchistan coasts of Iran, and also Iraq (Al Robaae, 1974; Braulik et al., 2010). Photo-identification re-sightings suggest humpback whales move seasonally between the Dhofar region (Kuria Muria Islands) in winter and the Gulf of Masirah to the north in summer, with similar re-sighting rates between and within regions (Minton et al., 2010b). Despite extensive comparisons of photo-identification catalogues and genotyped individuals between Oman and the other Indian Ocean catalogues and genetic datasets, no matches have been detected between regions (Pomilla et al., 2006; Minton et al., 2010a). Humpback whales from this region carry fewer and smaller barnacles than Southern Hemisphere whales, and do not exhibit the white oval scars indicative of cookie cutter shark (Isistius brasiliensis) bites, a feature commonly seen on some Southern Hemisphere humpback whales (Mikhalev, 1997). Connections between the Arabian Sea population with the other Northern Hemisphere populations are highly unlikely as there is no accessible northward passage from the Arabian Sea. Furthermore, there are no mitochondrial DNA haplotypes or song patterns shared with North Pacific humpback whales (Whitehead, 1985; Rosenbaum et al., 2009); thus, on current evidence, and in the absence of comparisons with far western North Pacific humpbacks, it appears that whales from these populations have no recent biological connectivity. Analysis of fetal lengths in pregnant females killed by Soviet whalers clearly indicate that this population exhibits a Northern Hemisphere reproductive cycle, with births occurring in the boreal winter (Mikhalev, 1997). Discreteness ´ Olavarrıa et al. (2007) analyzed patterns of mtDNA control region variation obtained from 1,112 samples from 6 breeding grounds in the South Pacific: New Caledonia, Tonga, Cook Islands, eastern Polynesia, Colombia, and Western Australia. Of these areas, the samples from Colombia were most differentiated (FST = 0.06—0.08 in pairwise comparison to other areas). Pairwise divergence among the other areas was lower (FST = 0.01—0.05). All pairwise comparisons were statistically >0, however, and indicated a lack of free exchange among these breeding areas. Levels of haplotype diversity were generally very high (0.90—0.97). Rosenbaum et al. (2009) conducted a similar study of breeding areas in the VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Southern Atlantic and Western Indian Oceans, including the coastal areas of Brazil, Southwestern Africa, and Southeastern Africa. Levels of differentiation among these are statistically significant but relatively low, with FST ranging from 0.003 (among two Southwestern African locations) to 0.017 (between Brazil and Southeastern Africa). Although there was some detectable differentiation among samples from Southwestern and Southeastern African coastal locations (B1/B2 and C1/C2/C3 International Whaling Commission (IWC) stocks, respectively), the levels of divergence within these areas were very low (FST = 0.003–0.009 within the ‘‘B’’ stock and 0.002–0.005 within the ‘‘C’’ stock). The estimated number of migrants per generation was 26 between Brazil and Southwestern Africa, and 33 between Southwestern and Southeastern Africa. A report on an IWC workshop devoted to Southern Hemisphere stock structure issues (IWC, 2011) recognizes at least seven ‘‘breeding stocks’’ associated with low-latitude, winter breeding grounds and, in some cases, migratory corridors. These seven breeding stocks are referred to alphabetically, from A to G, to distinguish them from the six management areas on feeding grounds of the Antarctic, referred to as Areas I– VI. The current breeding stock designations are southwestern Atlantic (A), southeastern Atlantic (B), southwestern Indian Ocean (C), southeastern Indian Ocean (D), southwestern Pacific (E), Oceania (E and F) and southeastern Pacific (G). These designations have been subdivided to reflect improved understanding of substructure within some of these regions: Gabon (B1) and Southwest Africa (B2) in the southeastern Atlantic; Mozambique (C1), the Comoros Archipelago (C2), Madagascar (C3) and the Mascarene Islands (C4) in the southwestern Indian Ocean, east Australia (E1), New Caledonia (E2), Tonga (E3), the Cook Islands (F1) and French Polynesia (F2) in the southwestern Pacific and Oceania. The IWC has also chosen to include in this assessment, a year-round population of humpback whales found in the Arabian Sea, north of the equator in the northern Indian Ocean (formerly referred to as breeding stock X). The BRT noted that the magnitude of mitochondrial DNA differentiation (as measured by FST) was generally lower among Southern Hemisphere breeding areas than it is in the Northern Hemisphere, indicating greater demographic connectivity among these areas. Even so, significant PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 22315 differentiation was present among major breeding areas, and the estimated number of migrants/generation among areas was small compared to the estimated sizes of the populations. The BRT members concluded that the seven breeding stocks of humpback whales currently formally recognized by the IWC in the Southern Hemisphere meet the criteria for being discrete populations under the DPS Policy guidelines, except that they agreed that the dividing line between IWC stocks E and F was between eastern Australia and Oceania (defined here to include New Caledonia, Tonga, Samoa, American Samoa, and French Polynesia), as there are large differences in the rates of recovery between these two regions, indicating they are demographically independent. Breeding populations in New Caledonia and east Australia are separate, but some overlap between the populations occurs: some whales bound for New Caledonia use the same migratory pathways as some whales headed past east Australia. There was consensus among the BRT to divide the Southern Hemisphere into seven discrete populations: Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania (including New Caledonia, Tonga, Cook Islands, Samoa, American Samoa and French Polynesia), and Southeastern Pacific (Colombia and Ecuador). We agree with the BRT’s conclusions, based on the significant mitochondrial DNA differentiation among major breeding populations. With regard to the Arabian Sea population, nuclear and mitochondrial DNA diversity of humpback whales from Oman (up to 47 individuals sampled) is the lowest among all breeding grounds (Pomilla et al., 2006; ´ Olavarrıa et al., 2007; Rosenbaum et al., 2009). Mitochondrial DNA analysis revealed only eight distinct haplotypes, half of which are exclusive to Oman (not detected on other breeding grounds, Pomilla et al., 2006). Haplotype diversity at the mtDNA control region is markedly lower than in other populations (0.69 vs 0.90–0.98 for Southern Hemisphere populations and 0.84 for North Pacific populations) ´ (Olavarrıa et al., 2007; Rosenbaum et al., 2009; Baker et al., 2013). Genetic data (nuclear microsatellites and mitochondrial control region) and fluke pigmentation markings indicate that the Arabian Sea breeding population is significantly differentiated from Southern Indian Ocean breeding grounds (Rosenbaum et al., 2009). Nuclear genetic analysis suggests that this population is the most strongly and significantly differentiated in all E:\FR\FM\21APP2.SGM 21APP2 22316 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 comparisons among other Indian Ocean and South Atlantic breeding populations (pair-wise FST range between Oman and Southern Indian Ocean breeding populations = 0.38– 0.48) (Pomilla et al., 2006). Levels of mitochondrial DNA differentiation between Oman and other Indian Ocean breeding grounds are around ten times higher than among the other breeding grounds (pair-wise FST range between Oman and other Indian Ocean breeding populations 0.11–0.15) (Rosenbaum et al., 2009). The BRT concluded, and we agree, that the Arabian Sea population is discrete from all other populations because of its low haplotype diversity compared to Southern Hemisphere and North Pacific populations, its differentiation in mtDNA and nDNA markers, and fluke pigmentation differences between whales in the Arabian Sea and in the Southern Indian Ocean. Significance The BRT noted that, within the Southern Hemisphere, most breeding populations feed in the same Antarctic marine ecosystem. One exception is the Brazil population, which feeds north of 60° S. in the South Georgia and South Sandwich Islands area (IWC, 2011). In addition to feeding in the Antarctic system, the Gabon/Southwest Africa population may also feed along the west coast of South Africa in the Benguela Current, but this is uncertain (IWC, 2011). Like the Central America population, the Southeastern Pacific breeding population may also be ecologically unique as it is the only population in the Southern Hemisphere to occupy an area also used by a Northern Hemisphere population. We conclude that the Brazil, Gabon/ Southwest Africa, and Southeastern Pacific populations occupy unique ecological settings and are therefore significant to the Southern Hemisphere subspecies of the humpback whale. For the Southern Hemisphere, determination of feeding range is more difficult since Antarctic feeding areas are less well studied and fewer connections between breeding and feeding populations have been made. However, some populations such as Brazil, Southwest Africa, Southeast Africa, and the Southeastern Pacific are believed to have fairly discrete and nonoverlapping feeding areas, suggesting that if any of these feeding areas were lost it would, in combination with the lost breeding area, result in a significant gap in the range. We conclude, therefore, that the Brazil, Gabon/ Southwest Africa, Southeast Africa/ VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Madagascar, and Southeastern Pacific populations are significant to the Southern Hemisphere subspecies of the humpback whale because their loss would result in significant gaps in the range of the Southern Hemisphere subspecies. Further, we believe that the loss of the West Australia, East Australia, and Oceania populations would also result in significant gaps in the ranges of the Southern Hemisphere subspecies because their nonoverlapping breeding ranges are quite extensive. In the Southern Hemisphere, the Southeastern Pacific population is the only breeding population that contains a genetic signal from Northern Hemisphere populations, giving it a unique genetic signature within the Southern Hemisphere (Baker et al., ´ 1993; Baker and Medrano-Gonzalez, 2002). It is also the most divergent of any of the Southern Hemisphere ´ populations (Olavarrıa et al., 2007). In addition, individuals in this region are morphologically distinct as they have darker pectoral fin coloration than other individuals in the Southern Hemisphere (Chittleborough, 1965), although the genetic basis for this trait is not known. Nonetheless, a majority of the BRT concluded that the Southeastern Pacific population was sufficiently differentiated so as to differ ‘markedly’ in its genetic characteristics from other Southern Hemisphere populations. In contrast, all other Southern Hemisphere populations were characterized by generally low levels of differentiation among them, consistent with demographically discrete populations but not necessarily with marked genetic divergence associated with long-term ´ isolation (Olavarrıa et al., 2007; Rosenbaum et al., 2009). We conclude that the Southeastern Pacific population of the humpback whale is significant to the Southern Hemisphere population of the humpback whale because it differs markedly in its genetic characteristics from other Southern Hemisphere populations. We conclude that each of the seven discrete Southern Hemisphere populations (Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific) satisfies at least one significance factor of the DPS Policy, and, therefore, we consider them to be DPSs. The Arabian Sea population persists year-round in a monsoon driven tropical ecosystem with highly contrasting seasonal wind and resulting upwelling patterns. The BRT therefore concluded that this population persists in a unique ecological setting. The Arabian Sea population segment does not migrate PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 extensively, but instead feeds and breeds in the same geographic location. No other humpback whale populations occupy this area and hence, a loss of the Arabian Sea population would result in a significant gap in the range of the Southern Hemisphere subspecies. The BRT also concluded that the Arabian Sea population differs markedly in its genetic characteristics from other populations in the Indian Ocean and worldwide. The degree of genetic differentiation at multiple genetic markers between this population and other populations is similar to or greater than the degree of divergence among the North Pacific, North Atlantic, and Southern Hemisphere areas. The BRT unanimously concluded that the Arabian Sea population would be considered a DPS under any global taxonomic scenario, due to its marked genetic divergence from all other populations and unique ecological setting. We agree that the Arabian Sea population occupies a unique ecological setting, its loss would result in a significant gap in the range of the Southern Hemisphere subspecies, and it differs markedly in its genetic characteristics from other populations. Therefore, it meets the significance criterion of the DPS policy, and we identify the Arabian Sea population as a DPS. Extinction Risk Assessment The BRT discussed the relationship between population size and trend and extinction risk, citing relevant literature on small population size, environmental and demographic stochasticity, genetic effects, catastrophes, and extinction risk ´ (e.g., Franklin, 1980; Soule, 1980; Gilpin ´ and Soule, 1986; Allendorf et al., 1987; Goodman, 1987; Mace and Lande, 1991; Frankham, 1995; Lande, 1998; Lynch and Blanchard, 1998; Lynch and Lande, 1998; Frankham, 1999; Brook et al., 2006; Mace et al., 2008) and concluding that population size criteria similar to those described in Mace et al. (2008) (International Union for Conservation of Nature and Natural Resources (IUCN) Red List criteria) could be considered carefully but not used as the sole criterion for evaluating extinction risk. The criteria the BRT considered are that a DPS with a total population size >2,000 was not likely to be at risk due to low abundance alone, a DPS with a population size <2,000 would be at increasing risk from factors associated with low abundance (and the lower the population size, the greater the risk), a DPS with a population size <500 would be at high risk due to low abundance, and a DPS with a population size <100 would be at extremely high risk due to E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules low abundance. But again, this was not the sole criterion considered by the BRT, as the BRT also considered how any of the factors (or threats) listed under ESA section 4(a)(1) contribute to the extinction risk of each DPS now and in the foreseeable future. Demographic factors that cause a species to be at heightened risk of extinction, alone or in combination with other threats under section 4(a)(1), are considered under ESA Factor E—other natural or manmade factors affecting the continued existence of the species. Ultimately, the BRT considered both the abundance and trend information and the threats to each DPS before making its conclusions on overall extinction risk for each DPS. The BRT considered abundance and trend information and categorized each DPS’ abundance as described above and indicated whether the population trend was increasing strongly, increasing moderately, stable/little trend, or declining. The BRT included an ‘‘unknown’’ category where data were not sufficient to detect a trend. To express uncertainty in abundance or trend information for any DPS, the BRT categorized abundance and trend in more than one category. As noted above, while NMFS’ 1991 Humpback Whale Recovery Plan recommended that populations grow to at least 60 percent of their historical (pre-hunting) abundance to be considered recovered, it did not identify specific numerical targets due to uncertainty surrounding historical abundance levels. So, the plan suggested an interim goal of doubling the population sizes within 20 years, which corresponds to an annual growth rate of about 3.5 percent. Because historical size of humpback whale populations continues to be uncertain (Bettridge et al., 2015) two decades after the recovery plan was finalized, and humpback whale survey periods have not spanned 20 years since issuance of the 1991 recovery plan, data are not available to evaluate the status of humpback whale populations against these goals. Therefore, the BRT focused its biological risk analysis primarily on recent abundance trends and whether absolute abundance was sufficient for biological viability in light of consideration of the factors under Section 4(a)(1). This is a valid approach that we often use to evaluate the risk of extinction to populations. The BRT also ranked the severity of 16 current or imminent threats to the humpback whale DPSs (1 = low or none, threat is likely to have no or minor impact on population size or the growth rate; 2 = medium, threat is likely to moderately reduce the population size VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 or the growth rate of the population; 3 = high, threat is likely to seriously reduce the population size or the growth rate of the population, 4 = very high, threat is likely to eliminate the DPS, unknown = severity of threat is unknown) and also indicated whether the trend of any threat was increasing. Finally, the BRT members assessed the risk of extinction for each DPS by distributing 100 likelihood points among 3 categories of extinction risk: (1) High Risk = a species or DPS has productivity, spatial structure, genetic diversity, and/or a level of abundance that place(s) its persistence in question. The demographics of a species/DPS at such a high level of risk may be highly uncertain and strongly influenced by stochastic and/or small population effects. Similarly, a species/DPS may be at high risk of extinction if it faces clear and present threats (e.g., imminent destruction, modification, or curtailment of its habitat; or disease epidemic) that are likely to create an imminent risk of extinction; (2) Moderate Risk = a species or DPS is at moderate risk of extinction if it exhibits characteristics indicating that it is likely to be at a high risk of extinction in the future. A species/DPS may be at moderate risk of extinction due to projected threats and/or declining trends in abundance, productivity, spatial structure, or diversity; and (3) Not at Risk = a species or DPS is not at risk of extinction. The BRT decided to evaluate risk of extinction over a time frame of approximately 60 years, which corresponds to about three humpback whale generations. The BRT concluded it could be reasonably confident in evaluating extinction risk over this time period (the foreseeable future) because current trends in both the biological status of the species and the threats it faces are reasonably foreseeable over this period of time. In making our listing determinations, we have applied this same time horizon. In the next sections, we summarize the information presented in the BRT’s status review report; see Bettridge et al. (2015) for more details. Abundance and Trends for Each DPS West Indies DPS As discussed above, this DPS consists of the humpback whales whose breeding range includes the West Indies and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland. While many West Indies whales also use feeding grounds in the central (Iceland) and eastern (Norway) North Atlantic, PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 22317 many whales from these feeding areas appear to winter in another location. The breeding range of this DPS within the West Indies is the entire Antillean arc, from Cuba to the Gulf of Paria, Venezuela. Several abundance estimates for the West Indies DPS have been made from photo-identification studies and biopsy samples and genetic identification using a Chapman 2-sample estimator, some comparing feeding ground samples to West Indies breeding ground samples, others comparing breeding ground samples to breeding ground samples (Palsb<ll et al., 1997; Smith et al., 1999; Clapham, 2003; Clapham et al., 2003a; Stevick et al., 2003; Barlow et al., 2011; Waring et al., 2012). Those estimates using breeding-to-breeding ground comparisons tend to be negatively biased (Barlow et al., 2011). The most accurate estimate made using photoidentification studies for the Years of the North Atlantic Humpback (YONAH) data (1992 and 1993 data) was 10,752 (CV = 6.8 percent) (Stevick et al., 2003). A Chapman 2-sample estimator was also applied to the genetic identification data, again using the feeding grounds (Gulf of Maine, Canada, and Greenland) as the mark, and the West Indies breeding ground as the recapture. This resulted in an estimate of 10,400 (95 percent CI 8,000–13,600; Smith et al., 1999). Note that this is nearly identical to the photo-based estimate using an identical estimator (10,752 photo vs. 10,400 genetic). Additional sampling was conducted in the West Indies in 2004 and 2005 in order to obtain an updated abundance estimate for the West Indies population (More of North Atlantic Humpbacks (MONAH) project; (Clapham, 2003; Waring et al., 2012), and the BRT reviewed a preliminary analysis of these data. A Chapman 2-sample estimator was applied to the MONAH genetic identification data, using the feeding grounds (Gulf of Maine only) as the mark, and the West Indies breeding ground as the recapture, resulting in an estimate of 12,312 (95 percent CI 8,688– 15,954) (NMFS unpublished data). This estimate is nearly directly comparable to the genetic estimate of 10,400 for 1992– 93 (Smith et al., 1999), with the exception that the earlier YONAH estimate used marked animals from Canada and West Greenland in addition to the Gulf of Maine. If it can be assumed that whales from Canada and Greenland have the same capture probability in the West Indies as do whales from the Gulf of Maine, this should not introduce any bias. The MONAH estimate of 12,312 is consistent with the increasing trend for the West E:\FR\FM\21APP2.SGM 21APP2 22318 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 Indies shown in Stevick et al. (2003), though it suggests the increasing trend in the population has slowed down. Stevick et al. (2003) estimated the average rate of increase for the West Indies breeding population at 3.1 percent per year (SE = 0.5 percent) for the period 1979–1993, but because of concerns that the same data may have been used twice and potentially lead to an over-estimate of the precision of the trend estimate, they re-calculated the trend analysis using only one set of abundance estimates for each time period. The revised trend for this time period was still 3.1 percent (SE=1.2 percent). When the MONAH estimate of 12,312 was added to the analysis, the increase from 1979–80 to 2004–05 was estimated to be 2.0 percent (SE=0.6 percent) per year, lower than for the earlier time period, but the increase was still significantly different from 0.0 (p = 0.008). The Silver Bank population, which serves as a proxy for the West Indies DPS, may be increasing or may be leveling off, but there are not enough data yet to support a strong conclusion. In contrast, estimates from feeding areas in the North Atlantic indicate strongly increasing trends in Iceland (1979–88 and 1987–2007), Greenland (1984–2007), and the Gulf of Maine (1979–1991). There is some indication that the increase rate in the Gulf of Maine has slowed in more recent years (6.5 percent from 1979 to 1991 (Barlow and Clapham (1997)), 0–4 percent from 1992–2000 (Clapham et al. (2003a))). It is not clear why the trends appear so different between the feeding and breeding grounds. A possible explanation would be that the Silver Bank breeding ground has reached carrying capacity, and that an increasing number and percentage of whales are using other parts of the West Indies as breeding areas. If local abundance has indeed increased in some areas other than Silver Bank, it would suggest that the West Indies population is larger than estimated by the MONAH study, and that the increase rate of the overall population may be higher than the 2 percent we estimate. Cape Verde Islands/Northwest Africa DPS The population abundance and population trend for the Cape Verde Islands/NW Africa DPS are unknown. The Cape Verde Islands photoidentification catalog contains only 88 individuals from a 20-year period (1990–2009) (Wenzel et al., 2010). Of those 88 individuals, 20 (22.7 percent) were seen more than once, 15 were seen in 2 years, 4 were seen in 3 years, and 1 was seen in 4 years. The relative high VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 re-sighting rate suggests a small population size with high fidelity to this breeding area, although the DPS may also contain other, as yet unknown, breeding areas (Wenzel et al., 2010). Western North Pacific DPS The abundance of humpback whales in the Western North Pacific is estimated to be around 1,000, based on the photo-identification, capturerecapture analyses from the years 2004– 2006 by the ‘‘Structure of Populations, Levels of Abundance and Status of Humpback Whales in the North Pacific’’ (SPLASH) program (Calambokidis et al., 2008) from two primary sampling regions, Okinawa and Ogasawara. The growth rate of the Western North Pacific DPS is estimated to be 6.9 percent (Calambokidis et al., 2008) between 1991–93 and 2004–06, although this could be biased upwards by the comparison of earlier estimates based on photo-identification records from Ogasawara and Okinawa with current estimates based on the more extensive records collected in Ogasawara, Okinawa, and the Philippines during the SPLASH program. However, the overall number of whales identified in the Philippines was small relative to both Okinawa and Ogasawara, so any bias may not be large. Overall recovery seems to be slower than in the Central and Eastern North Pacific. Humpback whales in the Western North Pacific remain rare in some parts of their former range, such as the coastal waters of Korea, and have shown no signs of a recovery in those locations (Gregr, 2000; Gregr et al., 2000). Hawaii DPS Calambokidis et al. (2008) estimated the size of the humpback whale populations frequenting the Hawaii breeding area at 10,000 individuals, and assuming that proportions from the Barlow et al. (2011) estimate of 21,808 individuals in breeding areas in the North Pacific are likely to be similar to those estimated by Calambokidis et al. (2008), the population size frequenting the Hawaii breeding area would have increased to about 12,000 individuals. The most recent growth rate for this DPS was estimated between 5.5 percent and 6.0 percent (Calambokidis et al., 2008). Mexico DPS A preliminary estimate of abundance of the Mexico DPS is 6,000–7,000 from the SPLASH project (Calambokidis et al., 2008), or higher (Barlow et al., 2011). There are no estimates of precision associated with that estimate, so there is considerable uncertainty about the actual population size. PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 However, the BRT was confident that the population is likely to be much greater than 2,000 in total size. Estimates of population growth trends do not exist for the Mexico DPS by itself. Given evidence of population growth throughout most of the primary feeding areas of the Mexico DPS (California/Oregon (Calambokidis et al., 2008), Gulf of Alaska from the Shumagins to Kodiak (Zerbini et al., 2006a)), it was considered unlikely this DPS was declining, but the BRT noted that a reliable, quantitative estimate of the population growth rate for this DPS is not currently available. Central America DPS Individual humpback whales in the Central America DPS migrate from breeding grounds off Costa Rica, Panama, Guatemala, El Salvador, Honduras, and Nicaragua to feeding grounds off California, Oregon, and Washington. A preliminary estimate of abundance of the Central America population is ∼500 from the SPLASH project (Calambokidis et al., 2008), or ∼600 based on the reanalysis by Barlow et al. (2011). There are no estimates of precision associated with these estimates, so there is considerable uncertainty about the actual population size. Therefore, the actual population size could be somewhat larger or smaller than 500–600, but the BRT considered it very unlikely to be as large as 2,000 or more. The size of this DPS is relatively low compared to most other North Pacific breeding populations (Calambokidis et al., 2008). The trend of the Central America DPS was considered unknown. Brazil DPS The most recent abundance estimate for the Brazil DPS comes from aerial surveys conducted off the coast of Brazil in 2002–2005 (Andriolo et al., 2010). These surveys covered the continental shelf between 6° S. and 24°30′ S. and provided a best estimate of 6,400 whales (95 percent CI = 5,000–8,000) in 2005. This estimate corresponds to nearly 24 percent of this DPS’ pre-exploitation abundance (Zerbini et al., 2006d). Nearly 80 percent of the whales are found in the Abrolhos Bank, the eastern tip of the Brazilian continental shelf located between 16° S. and 18° S. (Andriolo et al., 2010). The best estimate of population growth rate is 7.4 percent per year (95 percent CI = 0.5– 14.7 percent) for the period 1995–1998 (Ward et al., 2011). Gabon/Southwest Africa DPS The lower and upper bounds of the abundance estimate for Iguela, Gabon, E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 are 6,560 (CV=0.15) for 2001–2004 and 8,064 (CV=0.12) for 2001–2005. These were generated using mark-recapture genetic data, and numerous other (generally similar) estimates are available depending on model assumptions (Collins et al., 2008). There are no trends available for this DPS, and it is not entirely clear how the estimates relate to potential subdivision within the DPS (Collins et al., 2008). Using a Bayesian estimation methodology, Johnston and Butterworth (2008) estimate the Gabon population to be in the range of 65–90 percent of its preexploitation size. al., 2008; Zerbini et al., 2010)); and the second is 9.0 percent (an estimate that is within the range calculated for other Southern Hemisphere breeding grounds (e.g., Ward et al., 2006; Noad et al., 2008; Hedley et al., 2009)). Both rates are considered with caution because the surveys were short in duration. It is not certain that these estimates represent the growth rate of the entire DPS. Given this uncertainty, and the uncertainty from the short duration of the surveys, it is likely the DPS is increasing, but it is not possible to provide a quantitative estimate of the rate of increase for the entire DPS. Southeast Africa/Madagascar DPS The most recent abundance estimates for the Madagascar population were from surveys of Antongil Bay, 2000– 2006 (Cerchio et al., 2009). Estimates using data from 2004–2006 and involving ‘‘closed’’ models of photoidentification of individuals and genotype data were 7,406 (CV = 0.37, CI: 2106–12706) and 6,951 (CV = 0.33, CI: 2509–11394), respectively. Additional estimates were made using various data sets (e.g., photo-identification and genotype) and models, estimating 4,936 (CV = 0.44, CI: 2137–11692) and 8,169 individuals (CV = 0.44, CI 3476–19497, Cerchio et al., 2009). The markrecapture data were derived from surveys over several years and thus may represent the abundance of whales breeding off Madagascar, in addition to possibly whales breeding in Mayotte and the Comoros (Ersts et al., 2006), and to a smaller degree from the East African Mainland (Razafindrakoto et al., 2008). Earlier estimates exist, including one of 2,532 (CV = 0.27) individuals (Best et al., 1996) based on surveys of the continental shelf region across the south and southeast coasts of Madagascar in 1994. However, these surveys likely did not cover the full distribution of humpback whales in the area. Data from a 1991 survey yielded an estimate of 1,954 whales (CV = 0.38) (Findlay et al., 1994). A subsequent line transect survey in 2003 included a larger region of the coast (Findlay et al., 2011). From these, two estimates were generated in 2003: 6,664 whales (CV = 0.16); and 5,965 (CV = 0.17) when data were stratified by coastal regions. Two trends in relative abundance have been calculated from land-based observations of the migratory stream passing Cape Vidal, east South Africa in July 1998–2002, and July 1990–2000. The first was an estimate of 12.3 percent per year (Findlay and Best, 2006) (however, this estimate is likely outside biological plausibility for this species (Bannister and Hedley, 2001; Noad et West Australia DPS Abundance of northbound humpback whales in the southeastern Indian Ocean in 2008 was estimated at 21,750 (95 percent CI = 17,550–43,000) based upon line transect survey data (Hedley et al., 2009). The current abundance appears likely close to the historical abundance for the DPS, although there is some uncertainty of the historical abundance because of difficulties in allocating catch to specific breeding populations (IWC, 2007a). The current abundance is large relative to any of the general guidelines for viable abundance levels (see earlier discussion). The rate of population growth is estimated to be ∼10 percent annually since 1982, which is at or near the estimated physiological limit of the species (Bannister, 1994; Bannister and Hedley, 2001) and well above the interim recovery goal. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 East Australia DPS Abundance of the East Australia DPS was estimated to be 6,300–7,800 (95 percent CI: 4,040–10,739) in 2005 based on photo-ID data (Paton and Clapham, 2006; Paton et al., 2008; Paton et al., 2009). The annual rate of increase is estimated to be 10.9 percent for humpback whales in the southwestern Pacific Ocean (Noad et al., 2008). This estimate of population increase is very close to the biologically plausible upper limit of reproduction for humpbacks (Zerbini et al., 2010). The surveys presented by Noad et al. (2005; 2008) have remained consistent over time, with a strong correlation (r > 0.99) between counts and years. Oceania DPS The Oceania humpback whale DPS is of moderate size (3,827 whales in New Caledonia, Tonga, French Polynesia and Cook Islands combined; CV=0.12) (South Pacific Whale Research Consortium et al., 2006); however, no trend information is available for this DPS. The DPS is quite subdivided, and the population estimate applies to an PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 22319 aggregate (although it is known that subpopulations differ in growth rates and other demographic parameters). There are some areas of historical range extent that have not rebounded and other areas without historical whaling information (Fleming and Jackson, 2011). There is uncertainty regarding which geographic portion of the Antarctic this DPS uses for feeding. The complex population structure of humpback whales within the Oceania region creates higher uncertainty regarding demographic parameters and threat levels than for any other DPS. Southeastern Pacific DPS Individuals of the Southeastern Pacific population migrate from breeding grounds between Costa Rica and northern Peru to feeding grounds in the Magellan Straits and along the Western Antarctic Peninsula. Though no quantitative growth rate information is available for this DPS, abundance estimates over a 13-year period suggest that the DPS size is increasing, and abundance was estimated to be 6,504 (95 percent CI: 4270–9907) individuals ´ ´ in 2005–2006 (Felix et al., 2006a; Felix et al., 2011). Total abundance is likely to be larger because only a portion of the DPS was enumerated. Arabian Sea DPS Mark-recapture studies using tail fluke photographs collected in Oman from 2000–2004 yielded a population estimate of 82 individuals (95 percent CI: 60–111). However, sample sizes were small, and there are various sources of possible negative bias, including insufficient spatial and temporal coverage of the population’s suspected range (Minton et al., 2010b). Reproductive rates in this DPS are not well understood. Cow-calf pairs were very rarely observed in surveys off the coast of Oman, composing only 7 percent of encounters in Dhofar, and not encountered at all since 2001. Soviet whaling catches off Oman, Pakistan and northwestern India also included low numbers of lactating females (3.5 percent of mature females) relative to pregnant females (46 percent of mature females) (Mikhalev, 1997). No trend data are available for this DPS. A low proportion of immature whales (12.4 percent of all females) was also found, even though catches were indiscriminate with respect to sex and condition (Mikhalev, 1997), suggesting that either calf mortality in this DPS is high, immature animals occupy areas that have not been surveyed, or that the whales have reproductive ‘boom and bust’ cycles which respond to high annual variation in productivity. The E:\FR\FM\21APP2.SGM 21APP2 22320 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 BRT noted that the entire region has not been surveyed; however, in areas where the whales are likely to be, not many whales have been observed. The BRT noted that this is a very small population but felt that there was some uncertainty in abundance estimates. Summary of Abundance and Trends The BRT summarized abundance and trend information for all humpback whale DPSs (Tables 7 and 8 in Bettridge et al., 2015). In the North Atlantic Ocean, the abundance of the West Indies DPS is much greater than 2,000 individuals and is increasing moderately. However, little is known about the total size of the Cape Verde Islands/Northwest Africa DPS, and its trend is unknown. In the Pacific Ocean, the abundance of the Okinawa/Philippines DPS (as identified by the BRT) is thought to be about 1,000 individuals with unknown trend. Little is known about the abundance of humpback whales from the unknown breeding ground (identified as the Second West Pacific DPS by the BRT), but it is likely to number at least 100 or more, with unknown trend. Combining this information, we conclude that there are at least 1,100 individuals in the Western North Pacific DPS, and the trend is unknown. The abundances of the Hawaii and Mexico DPSs are known to be much greater than 2,000 individuals and are thought to be increasing moderately. The abundance of the Central America DPS is thought to be about 500 individuals with unknown trend. In the Southern Hemisphere, all seven DPSs are thought to be greater than 2,000 individuals in population size. The Brazil DPS is increasing either rapidly or moderately. The trend in the Gabon/Southwest Africa DPS is unknown, while the Southeast Africa/ Madagascar DPS is thought to be increasing. The West Australia and East Australia DPSs are both large and increasing rapidly. The Southeastern Pacific DPS is thought to be increasing. And the trend of the Oceania DPS is unknown. The estimated abundance of the Arabian Sea DPS is less than 100, but its entire range was not surveyed, so it could be somewhat larger. Its trend is unknown. Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale DPSs Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Federal List of Endangered and Threatened Species. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Under section 4(a)(1) of the ESA, the Services must determine if a species is threatened or endangered because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In this rulemaking, information regarding the status of each of the 14 humpback whale DPSs is considered in relation to these factors. The information presented here is a summary of the information in the Status Review Report (Bettridge et al., 2015). The reader is directed to the Threats Analysis subsection under each DPS in the Status Review Report for a more detailed discussion of the factors and how they affect each DPS. Section 4(a)(1) Factors Applicable to All DPSs A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range The BRT discussed habitat-related threats to humpback whale populations, including coastal development, contaminants, energy exploration and development, and harmful algal blooms (HABs). Substantial coastal development is occurring in many regions, and may include construction that can cause increased turbidity of coastal waters, higher volume of ship traffic, and physical disruption of the marine environment. Noise associated with construction (e.g., pile driving, blasting, or explosives) and dredging has the potential to affect whales by generating sound levels believed to disturb marine mammals under certain conditions. The majority of the sound energy associated with both pile driving and dredging is in the low frequency range (<1,000 Hz) (Illingworth and Rodkin Inc., 2001; Reyff, 2003; Illingworth and Rodkin Inc., 2007). Because humpback whales would only be affected when close to shore, the BRT believed that these effects on the whales would generally be low. However, if coastal development occurred in seasonal areas or migration routes where whales concentrate, individuals in the area could be more seriously affected. Scheduling in-water construction activities to avoid those times when whales may be present would likely minimize the disturbance. The BRT was unaware of any circumstance of coastal development resulting in humpback PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 whale serious injury or mortality and therefore determined that in general coastal development likely poses a low level threat to humpback whales. For purposes of the status review, the BRT agreed to consider as contaminants heavy metals, persistent organic pollutants, effluent, airborne contaminants, plastics, and other marine debris and pollution, with the exception of oil spills, which is evaluated under ‘‘energy exploration and development.’’ Numerous regions were highlighted as having known or hypothesized high contaminant levels from run-off, large human populations, and low levels of regulatory control. Halogenated organic pollutants (including dichloro-diphenyltrichloroethane (DDT)), hexachlorocyclohexane (HCH) and chlordane (CH) insecticides, polychlorinated biphenyl (PCB) coolants and lubricants, and polybrominated diphenyl ether (PBDE— flame retardants) can persist in the environment for long periods. Air-borne pollutants are particularly concentrated in areas of industrialization, and in some high latitude regions (Aguilar et al., 2002). While the use of many pollutants is now either banned or strictly regulated in some countries (e.g., DDTs and PCBs), their use is still unregulated in many parts of world, and they can be transported long distances via oceanographic processes and atmospheric dispersal (Aguilar et al., 2002). Humpback whales can accumulate lipophilic compounds (e.g., halogenated hydrocarbons) and pesticides (e.g., DDT) in their blubber, as a result of feeding on contaminated prey (bioaccumulation) or inhalation in areas of high contaminant concentrations (e.g., regions of atmospheric deposition) (Barrie et al., 1992; Wania and Mackay, 1993). Some contaminants (e.g., DDT) are passed on maternally to young during gestation and lactation (e.g., fin whales, Aguilar and Borrell, 1994). Elfes et al. (2010) described the range and degree of organic contaminants accumulated in the blubber of humpback whales sampled on Northern Hemisphere feeding grounds. Concentrations were high in some areas (Southern California and Northern Gulf of Maine), possibly reflecting proximity to industrialized areas in the former case, and prey choice in the latter (Elfes et al., 2010). There were also higher levels of PCBs, PBDEs, and CH insecticides in the North Atlantic Ocean (Gulf of Maine and Bay of Fundy) than in the North Pacific (California, Southeast Alaska, Aleutian Islands). The highest levels of DDT were found in whales feeding off Southern E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules California, a highly urbanized region of the coast with substantial discharges (Elfes et al., 2010). This same study found a linear increase in PCB, DDT, and chlordane concentration with age of the whales sampled. Generally, concentrations of these contaminants in humpback whales were low relative to levels found in odontocetes (O’Shea and Brownell, 1994). Little information on levels of contamination is available from humpback whales on Southern Hemisphere feeding grounds. The health effects of different doses of contaminants are currently unknown for humpback whales (Krahn et al., 2004c). There is evidence of detrimental health effects from these compounds in other mammals, including disease susceptibility, neurotoxicity, and reproductive and immune system impairment (Reijnders, 1986; DeSwart et al., 1996; Eriksson et al., 1998). Contaminant levels have been proposed as a causative factor in lower reproductive rates found among humpback whales off Southern California (Steiger and Calambokidis, 2000), but at present the threshold level for negative effects, and transfer rates to calves, are unknown for humpback whales. Metcalfe et al. (2004) found in biopsy-sampled humpback whale young-of-the-year in the Gulf of St. Lawrence PCB levels similar to that of their mothers and other adult females, indicating that bioaccumulation can be rapid, and that transplacental and lactational partitioning did little to reduce contaminant loads. Although there has been substantial research on the identification and quantification of such contaminants on individual whales, no detectable effect from contaminants has been identified in baleen whales. There may be chronic, sub-lethal impacts that are currently unknown. The difficulty in identifying contaminants as a causative agent in humpback whale mortality and/or decreased fecundity led the BRT to conclude the severity of this threat was low in all regions, except where lack of data indicated a finding of unknown. The BRT defined identified threats from energy exploration and development to include oil spills from pipelines, rigs, or ships, increased shipping, and construction surrounding energy development (oil, gas, or alternative energy). This category does not include noise from energy development, which is considered under ‘‘anthropogenic noise.’’ Little is known about the effects of oil or petroleum on cetaceans and especially on mysticetes (baleen whales, characterized by having baleen plates for filtering food from water, rather than VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 teeth like in the toothed whales (odontocetes)). Oil spills that occur while whales are present could result in skin contact with the oil, baleen fouling, ingestion of oil, respiratory distress from hydrocarbon vapors, contaminated food sources, and displacement from feeding areas (Geraci et al., 1989). Actual impacts would depend on the extent and duration of contact, and the characteristics of the oil. Most likely, the effects of oil would be irritation to the respiratory membranes and absorption of hydrocarbons into the bloodstream (Geraci et al., 1989). Polycyclic aromatic hydrocarbons (PAHs) are components of crude oil which are not easily degraded and are insoluble in water, making them quite detrimental in the marine environment (Pomilla et al., 2004). PAHs have been associated with proliferative lesions and alteration to the immune and reproductive systems (Martineau et al., 2002). Long-term ingestion of pollutants, including oil residues, could affect reproduction, but data are lacking to determine how oil may fit into this scheme for humpback whales. Although the risk posed by operational oil rigs is likely low, failures and catastrophic events that may result from the presence of rigs pose high risks. Since the BRT had already determined that threat assessments would focus on present threats, the mere presence of oil rigs was not interpreted to warrant a threat level above low. However, the level of impact that such a catastrophic event may have on a population was considered in the evaluations. Some algal blooms are harmful to marine organisms and have been linked to pollution from untreated industrial and domestic wastewater. Toxins produced by different algae can be concentrated as they move up the food chain, particularly during algal blooms. Naturally occurring toxin poisoning can be the cause of whale mortalities and is particularly implicated when unusual mortality events (UME) occur. Despite these UMEs, the BRT determined that HABs represent a minor threat to most humpback whale populations. HABs may be increasing in Alaska, but the BRT was unaware of records of humpback whale mortality resulting from HABs in this region. B. Overutilization for Commercial, Recreational, Scientific or Educational Purposes The BRT described whaling (commercial, scientific, subsistence hunting, and other ‘‘hunts’’), whalewatching, and scientific research activities and evaluated whether they PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 22321 were impacting humpback whales. Direct hunting, although rare today, was the main cause of initial depletion of humpback whales and other large whales. The BRT believed that the likelihood that commercial whaling will resume in the foreseeable future is currently low (see discussion under Inadequacy of Regulatory Mechanisms below). With regard to scientific whaling, Japan has already announced its plan to remove humpback whales from its scientific proposals in the future (Government of Japan, 2014). In summary, the current impact of all whaling activities on global humpback whale populations is very low, with only a handful of humpback whales taken annually in two known aboriginal harvests. The BRT discussed the possibility of expanded commercial whaling of humpback whales in the Southern Ocean but determined that new whaling action in the foreseeable future was unlikely. Therefore, the BRT attributed a low level risk of whaling for all but one DPS (see Western North Pacific DPS section). Whale-watch tourism is a global industry with major economic value for many coastal communities (O’Connor et al., 2009). The industry has been expanding rapidly since the 1980s (estimated 3.7 percent global increase in whale watchers per year between 1998– 2008, O’Connor et al., 2009; Kessler and Harcourt, 2012). Whale-watching operations have been documented in 119 countries worldwide as of 2008, including on many humpback whale feeding grounds, breeding grounds, and migratory corridors (O’Connor et al., 2009). Efforts to manage whale-watching operations have included limiting the number of whale-watching vessels, limiting the time vessels spend near whales, specifying the manner of operating around whales, and establishing limits to the period of exposure of the whales. In some areas, whale-watching industries operate under regulations while others operate under guidelines or are still unregulated, and this industry is still growing rapidly in many areas (over 10 percent per year in Oceania, Asia, South America, Central America and the Caribbean) (Carlson, 2009; O’Connor et al., 2009). Weinrich et al. (2008) observed that the most common reported response of humpback whales to whale-watching boats was increased swimming speed during exposure; there was little evidence of significant effects on interbreath intervals and blow rates. Passive acoustic monitoring and localization of humpback whale songs in the presence of whale-watching boats on Brazilian E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22322 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules breeding grounds also found that whales moved away from the boat in the majority of cases (68.4 percent of the time when boats were less than 2.5 miles (4.0 km) distant, Sousa-Lima and Clark, 2009). Only one study has attempted to assess the population-level effects of whale-watching on humpback whales, as the relevant parameters are very difficult to measure. Weinrich and Corbelli (2009) reported that calving rate and calf survival to age 2 in humpback whales on Stellwagen Bank (part of the Gulf of Maine feeding ground) did not seem to be negatively affected by whalewatching. The authors noted, however, that in areas of heavy ship traffic, isolating the impacts of whale-watching on biological parameters is difficult and may not be conclusive (Weinrich and Corbelli, 2009) and is difficult to determine at either the individual or population level. The BRT discussed the available evidence regarding the impact of whalewatching on humpback whale populations. All available evidence supports the conclusion that the impact of these activities on humpback whale populations is negligible, and the BRT determined this threat is low for all DPSs. Humpback whales have been the subject of field research studies for decades. The primary objective of many of these studies has generally been to gather data for behavioral and ecological studies. In the United States, permits authorize investigators to make close approaches to endangered whales for photographic identification, biopsy sample collection, behavioral observations, passive acoustic recording, aerial photogrammetry, satellite tagging, and underwater observations. Research on humpback whales is likely to continue and increase in the future, especially for the collection of genetic information, photographic studies, and acoustic studies. Research activities could result in disturbance to humpback whales, but they are closely monitored and evaluated in the United States in an attempt to minimize any necessary impacts of research. Regulation of research activities in other nations varies from effectively no regulation to regulations comparable to those in the United States. The BRT discussed the available evidence regarding the impact of scientific research on humpback whale populations. All available evidence supports the conclusion that the impact of these activities is negligible, and the BRT determined this threat is low for all DPSs. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 C. Disease or Predation Information on disease or parasites is unavailable for many humpback whale populations. Direct monitoring of species biochemistry and pathology, used to determine the state of health in humans and domestic animals, is very limited for humpback whales, and there is little published on humpback whale disease as a result. Humpback whales carry a crustacean ectoparasite (the cyamid Cyamus boopis). While the whale is the main source of nutrition for this parasite (Schell et al., 2000), there is little evidence that the parasite contributes to whale mortality. Humpback whales can also carry the giant nematode Crassicauda boopis (Bayliss, 1920), which is known to cause a serious inflammatory response (leading to vascular occlusion and kidney failure) in a few balaenopterid species (Lambertsen, 1992). Individual humpback whales in Hawaiian waters have a high occurrence of skin lesions, but it is unclear whether this is due to a parasite or disease. It is estimated that approximately 60 percent of adults in Hawaii and Oceania have these skin lesions. Whether the lesions are entirely benign is unknown. The BRT concluded that where some information is available, disease and parasites do not pose a substantial threat to humpback whale populations. The most common predator of humpback whales is the killer whale (Orcinus orca, Jefferson et al., 1991), though predation by large sharks may also occur. Attacks by false killer whales (Pseudorca crassidens) have also been reported or inferred on rare occasions. Attacks by killer whales on humpback whale calves has been inferred by the presence of distinctive parallel ‘rake’ marks from killer whale teeth across the flukes (Shevchenko, 1975). While killer whale attacks of humpback whales are rarely observed in the field (Ford and Reeves, 2008), the proportion of photoidentified whales bearing rake scars is between zero and 40 percent, with the greater proportion of whales showing mild scarring (1–3 rake marks) (Wade et al., 2007; Steiger et al., 2008). This suggests that attacks by killer whales on humpback whales vary in frequency across regions. It also suggests that either most killer whale attacks result in mild scarring, or those resulting in severe scarring (4 or more rakes, parts of fluke missing) are more often fatal. Most observations of humpback whales under attack from killer whales reported vigorous defensive behavior and tight grouping when more than one humpback whale was present (Ford and Reeves, 2008). PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Photo-identification data indicate that rake marks are usually acquired in the first year of life, although attacks on adults also occur (Wade et al., 2007; Steiger et al., 2008). Killer whale predation may influence survival during the first year of life (Wade et al., 2007). There has been some debate as to whether killer whale predation (especially on calves) is a motivating factor for the migratory behavior of humpback whales (Corkeron and Connor, 1999; Clapham, 2001). How significantly motivating this factor is also depends on the importance of humpback whales in the diet of killer whales, another debated topic that remains inconclusive (Springer et al., 2003; Wade et al., 2007; Kuker and Barrett-Lennard, 2010). No analyses of killer whale stomach contents have revealed remains of humpback whales (Shevchenko, 1975), suggesting that if humpback whales are taken at all, they comprise at most a small part of the diet. However, these analyses took place during the height of the whaling period, when humpback whales were at a low density and may therefore have been less available for predation. There is also evidence of shark predation on calves and entangled whales (Mazzuca et al., 1998). Shark bite marks on stranded whales may often represent post-mortem feeding rather than predation, i.e., scavenging on carcasses (Long and Jones, 1996). The threat of predation was ranked as low or unknown for all DPSs because the level of mortality is unknown, but it is likely not prohibiting population growth. D. Inadequacy of Existing Regulatory Mechanisms Numerous international and regional regulatory mechanisms are in place to protect humpback whales directly or indirectly. The International Whaling Commission (IWC) was set up under the International Convention for the Regulation of Whaling (ICRW), signed in 1946. The IWC established an international moratorium on commercial whaling for all large whale species in 1982, effective in 1986; this affected all member (signatory) nations (paragraph 10e, IWC, 2009a). The IWC has set the catch limits for commercial whaling at zero since 1985. Since that time, the IWC’s Scientific Committee has developed a stock assessment and catch limit methodology called the ‘‘revised management procedure,’’ with the goal of providing information on catch limits consistent with maintaining sustainable populations. As of 2014, the IWC has maintained the zero catch E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules limit, and this policy has engendered considerable debate within the organization. The IWC’s regulations provide a process by which countries may object to specific provisions, and Norway and Iceland currently allow commercial whaling based on these objections. Iceland and Norway currently hunt a number of whale species commercially under objection to the IWC moratorium, although humpback whales have not been hunted by either nation in recent years. The present international moratorium on commercial whaling will remain in place unless a 75 percent majority of IWC signatory members votes to lift the moratorium. If this were to happen, then, under current IWC management procedures, humpback whale stocks considered to have recovered to over 54 percent of their pre-whaling levels (based on a detailed ‘‘comprehensive assessment’’ of their population status) could be subject to commercial whaling, with a quota that in theory would be determined by the Revised Management Procedure. This procedure implements a quasi-Bayesian Catch Limit Algorithm to calculate allowable catches for each stock (Cooke, 1992). The effects of these catches on population abundance would be simulated via a series of Implementation Simulation Trials prior to agreement of quotas for commercial hunting. Since whaling is carried out under objection by Iceland and Norway, they are not subject to this management scheme for allocating quotas for any species. The United States first incorporated the IWC’s regime into domestic law in the 1971 Pelly Amendment to the Fisherman’s Protective Act of 1967. This amendment provides that when the Secretary of Commerce determines that the nationals of a foreign country are diminishing the effectiveness of an international fishery conservation program (including the IWC’s program), the Secretary shall certify this fact to the President. The President then has the discretion to ban importation of fishing products from the offending country. The United States has threatened sanctions under the Pelly Amendment on a number of occasions, but to date, it has not imposed economic sanctions on marine products. In November 1974, pressure from the United States contributed to Japan and the Soviet Union complying with the 1974–1975 quotas. Norway was certified in 1987 and several times thereafter. Japan has been certified three times, the last being in 2000, and Iceland has been certified several times, including in 2011 for whaling activities. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 These measures were further strengthened by the 1979 PackwoodMagnuson Amendment to the Fishery Conservation and Management Act of 1976. It provides that, when the Secretary of Commerce certifies that a country is diminishing the effectiveness of the work of the IWC, the Secretary of State must reduce that country’s fishing allocation in U.S. waters by at least 50 percent. Certification under the Packwood-Magnuson Amendment also serves as certification under the Pelly Amendment. The threatened application in 1980 of the PackwoodMagnuson and Pelly Amendments led South Korea to agree to follow IWC guidelines restricting the use of cold (i.e., non-explosive) harpoons. Faced with similar pressure, the Republic of China (Taiwan) placed a complete ban on whaling in 1981. Without United States support, it is possible that the 1986 moratorium would have been substantially limited, as nations such as Iceland, Japan, Norway, and the Soviet Union would have opted out and continued commercial whaling. Since implementation of the international moratorium on whaling, some nations have continued to hunt whales under Article VIII of the ICRW, which allows the killing of whales for scientific research purposes. Three nations originally conducted scientific whaling: Iceland, Norway, and Japan. Presently only Japan pursues scientific whaling, under the programs JARPAII and JARPNII (‘Japanese Whale Research Program under Special Permit in the Antarctic’ and ‘North Pacific,’ respectively). Scientific whaling is presently unregulated, and no catch limits are enforced for this activity (Clapham et al., 2003b). In 2012, the Government of Japan issued Special Permits authorizing the implementation of a catch limit of Antarctic minke, fin, and humpback whales for scientific purposes in the Southern Ocean; a research catch limit of up to 50 humpback whales was included in the Special Permits. To date, however, no humpback whales have been taken for scientific research by any country. On March 31, 2014, after the 2013/14 Japanese whale hunt season in the Antarctic, the International Court of Justice ruled that past Japanese whaling programs were illegal, and Japan immediately terminated its JARPAII programs. In September 2014, Japan agreed to a new requirement to submit new research proposals to the IWC 6 months before the next annual IWC Scientific Committee meeting (in May 2015) so that the IWC could assess whether lethal samples are necessary for PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 22323 a specific research program and whether the number of whales sampled is scientifically justified. Because of the timing, Japan will not hunt whales in the Southern Ocean during the 2014/15 season, and this will be the first time in 30 years that Japan has not hunted for whales in the Antarctic. Japan’s proposed research plan for new scientific whale research programs in the Antarctic Ocean (NEWREP–A, http://iwc.int/sc-documents) was released on November 19, 2014, and it includes only a small number of minke whales. The IWC also develops catch limits for aboriginal whaling, including take of humpback whales in coastal areas of Greenland and the West Indies. The ICRW allows for signatory nations to harvest whales for scientific purposes through their own national permit process, although humpback whales have not been reported to have been taken under this process. The current commercial whaling moratorium is providing significant protection to humpback whales. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is aimed at protecting species at risk from unregulated international trade. CITES regulates international trade in animals and plants by listing species in one of its three appendices. The level of monitoring and control to which an animal or plant species is subject depends on the appendix in which the species is listed. Appendix I includes species threatened with extinction which are or may be affected by trade; trade of Appendix I species is only allowed in exceptional circumstances. Appendix II includes species not necessarily threatened with extinction presently, but for which trade must be regulated in order to avoid utilization incompatible with their survival. Appendix III includes species that are subject to regulation in at least one country, and for which that country has asked other CITES Party countries for assistance in controlling and monitoring international trade in that species. Humpback whales are currently listed in Appendix I under CITES. With the IWC commercial whaling moratorium in place since 1985, commercial trade has not been a problem for humpback whales. However, if the moratorium should ever be lifted in the future, the humpback whale’s CITES Appendix I listing would restrict trade so that it would not contribute to the extinction risk of the species. Given this support and the long history of CITES work and resolutions to support the IWC whaling moratorium, we do not expect the E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22324 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules CITES status of the humpback whale to change if ESA protections are removed from the species or any DPSs of the species. For example, CITES Resolution Conf. 11.4 (Rev. CoP12) welcomed the Resolution passed by the IWC at its Special Meeting in December 1978 requesting that the Conference of the Parties to the Convention, at its second meeting, take all possible measures to support the IWC ban on commercial whaling for certain species and stocks of whales. The International Maritime Organization (IMO), a United Nations agency and the recognized international authority on shipping and safety at sea, participates in reducing the shipping industry’s impacts to the sea from pollution (oil, garbage, noxious substances). Regulations to address pollution from maritime vessels include MARPOL (International Convention for the Protection of Pollution from Ships), MARPOL Annexes, International Conventions on Oil Pollution Preparedness Response and Cooperation, and Prevention of Marine Pollution by Dumping of Wastes and Other Matter. The IMO’s Marine Environment Protection Committee designates regions as ‘‘Particularly Sensitive Sea Areas’’ (PSSA) and ‘‘Areas to be Avoided’’ for various ecological, economic, or scientific reasons. PSSA regions include The Great Barrier Reef ´ (Australia), the Galapagos Islands (Ecuador), and the Papahanaumokuakea Marine National Monument (North Pacific). The IMO was approached for the first time regarding conservation of an endangered whale species in 1998—a protective measure for North Atlantic right whales (Silber et al., 2012). Since then, the IMO has been approached over a dozen times with nations’ proposals to establish or amend routing measures in various locations to reduce the threat of vessel collisions with endangered whales, including humpback whales (Silber et al., 2012). For example, the IMO has endorsed Areas To Be Avoided in U.S. and Canadian waters to reduce the threat of ship strikes of right whales (Fleming and Jackson, 2011, pp. 28–29), measures that also benefit humpback whales. IMO-endorsed modifications to Traffic Separation Schemes (TSS) have been established in areas off Boston, San Francisco, and near Santa Barbara (the latter two primarily for humpback whales); and a new TSS, along with vessel speed advisories, has been proposed for the Pacific side of the Panama Canal to protect large whale species from vessel collisions. Humpback whales are protected by the MMPA (16 U.S.C. 1361 et seq.). The VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 West Indies, Western North Pacific, Hawaii, Mexico, and Central America DPSs of the humpback whale can be found in U.S. waters and are protected under the MMPA when in U.S. waters as well as from takings by U.S. vessels or persons on the high seas. The MMPA includes a general moratorium on the taking and importing of marine mammals, which is subject to a number of exceptions. Some of these exceptions include take for scientific purposes, public display, subsistence use by Alaska Natives, and unintentional incidental take coincident with conducting lawful activities. U.S. citizens who engage in a specified activity other than commercial fishing (which is specifically and separately addressed under the MMPA) within a specified geographical region may petition the Secretaries to authorize the incidental, but not intentional, taking of small numbers of marine mammals within that region for a period of not more than 5 consecutive years (16 U.S.C. 1371(a)(5)(A)). The Secretary ‘‘shall allow’’ the incidental taking if the Secretary finds that ‘‘the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses.’’ If the Secretary makes the required findings, the Secretary also prescribes regulations that specify: (1) Permissible methods of taking, (2) means of effecting the least practicable adverse impact on the species, their habitat, and their availability for subsistence uses, and (3) requirements for monitoring and reporting. Similar to promulgation of incidental take regulations, the MMPA also established an expedited process by which U.S. citizens can apply for an authorization to incidentally take small numbers of marine mammals where the take will be limited to harassment (16 U.S.C. 1371(a)(5)(D)). These authorizations are limited to 1 year, and, as with incidental take regulations, the Secretary must find that the total of such taking during the period will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses. NMFS refers to these authorizations as Incidental Harassment Authorizations. Under the MMPA, NMFS also evaluates and provides permits for the taking of large whale species for those engaged in scientific research focused on those species. NMFS has also issued rules under the authority of the MMPA PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 and the ESA to promulgate regulations to address the threat of vessel collisions with large whale species, and these regulations would remain in place even if humpback whales are no longer listed under the ESA. The MMPA provides additional protections to ‘‘depleted’’ marine mammals. For example, NMFS may not provide a take waiver for depleted stocks (section 101(a)(3)(A)), authorize importation of individual animals taken from depleted marine mammal stocks except pursuant to a permit for scientific research or for enhancing the survival or recovery of a species or stock (section 102(b)(3)(B)), or issue research permits involving the lethal taking of a marine mammal from a species or stock that is depleted (unless the Secretary determines that the results of such research will directly benefit that species or stock, or that such research fulfills a critically important research need)(section 104(c)(3)(B)). In addition, if a stock is depleted, it is automatically considered ‘‘strategic,’’ which then has other management implications. For example, under Section 112(e) of the MMPA, if the Secretary determines that impacts on rookeries, mating grounds, or other areas of similar ecological significance to marine mammals may be causing the decline or impeding the recovery of a strategic stock, the Secretary may develop and implement conservation or management measures to alleviate those impacts. Also, under Section 118, the Secretary may develop and implement a take reduction plan designed to assist in the recovery or prevent the depletion of each strategic stock that interacts with a commercial fishery. The humpback whale is considered ‘‘depleted’’ under the MMPA because of its endangered status under the ESA. See Effects of this Rulemaking below for a discussion of the potential consequences of removing ESA protections from the humpback whale. While MMPA ‘‘depleted’’ status provides additional protections to humpback whales, the MMPA provides substantial protections to humpback whales in U.S. waters and from takings by U.S. persons and vessels on the high seas, whether they are depleted or not. The ESA requires Federal agencies to conduct their activities in such a way as to conserve species listed as threatened or endangered. Section 7 of the ESA also requires Federal agencies, in consultation with the FWS and/or NMFS, to ensure that activities they authorize, fund or carry out are not likely to jeopardize the continued existence of any listed species (or species proposed for listing) or result in E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules the destruction or adverse modification of designated or proposed critical habitat of such species. We have conducted scores of Section 7 consultations with the United States Coast Guard (USCG), the Army Corps of Engineers, the Bureau of Ocean Energy Management, and other agencies to ensure actions by these agencies do not adversely affect listed large whale species, including humpback whales. The ESA forbids the import, export, or interstate or foreign sale of species listed as endangered without a special permit. It also makes ‘‘take’’ of species listed as endangered illegal—forbidding, among other things, the killing, harming, harassing, pursuing, or removing the species from the wild (16 U.S.C. 1532(19)). Any or all of these protections may be provided to a species listed as threatened through regulations issued under ESA section 4(d)(16 U.S.C. 1533(d)). Of course, ESA protections for a species apply only if a species is listed as threatened or endangered under the ESA. Whale strike mitigation measures currently in place for some vessels and regions include using dedicated observers (Weinrich and Pekarik, 2007), speed reduction in some important habitat areas (73 FR 60173; October 10, 2008), and shifting of shipping lanes away from areas of whale concentration to accommodate humpback whales and other species. Passive acoustic monitoring in areas of high shipping traffic also has promise for notifying mariners of whales in the area, as this method is relatively inexpensive, although detection is limited to vocalizing whales and specific source locations can be hard to determine (Silber et al., 2009). TSSs are in place for San Francisco Bay and the Santa Barbara Channel to ensure safety of navigation. These TSSs were amended in June 1, 2013, to lessen the possibility of fatal vessel collisions with humpback whales and other listed large whale species. Modifications include narrowing and extending the Northern and Western approaches while the inbound lane of the Santa Barbara Channel TSS has been shifted shoreward to reduce the co-occurrence of ships and whales and reduce the likelihood of a vessel/whale collision. We expect these TSSs and modifications to help reduce the likelihood of vessel collisions with humpback whales. Congress enacted the Coastal Zone Management Act (CZMA) in 1972 when it realized that rapid growth was threatening the vital productive coastal areas of the country. Congress determined that the most effective management of coastal resources would VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 be achieved if states were given a major role in developing and administering management programs. The Act sought to assure the states that their management programs would not be disregarded by Federal agencies whose activities would affect the coastal zone. For example, the stepped-up Outer Continental Shelf (OCS) development policies of the early 1970s led to the 1976 amendments that assured greater state involvement in the planning stages of oil and gas development. The CZMA accomplishes its goal primarily by encouraging the states to develop voluntary coastal zone management programs. Once a state has an approved program, it becomes eligible for Federal funds and acquires the benefit of the ‘‘consistency provisions.’’ Sections 307(c) and 307(d) of the CZMA establish classes of Federal activities that must be consistent with state programs. These include Federal activities that directly affect the coastal zone, development projects, Federal licenses and permits, OCS exploration, development, and production plans, and Federal assistance to states and local governments. Every coastal state in the United States except for Alaska currently has an approved coastal zone management program. Consistency determinations under the CZMA help to ensure that OCS projects do not adversely impact humpback whales or humpback whale habitat. The U.S. Park Service has jurisdiction over marine waters (through the Fish and Wildlife Coordination Act) in Glacier Bay National Park and Preserve (established 1980; modified 1985). The following regulations are in place to protect humpback whales occurring there in the summer: Restrictions on the number of vessels entering park waters; restrictions on vessel operating conditions in the known presence of humpback whales, mandatory vessel operating requirements in certain designated ‘‘whale waters,’’ mandatory vessel speed limits at certain times and locations; mandatory boater education for boaters entering the area, regulations restricting the harvest of humpback whale prey species and ship board observers to quantify ship strikes and interactions between cruise ships and whales. These regulations should contribute somewhat to reducing the extinction risk of the Hawaii and Mexico DPSs of the humpback whale because some of these individuals feed in the park. Under the National Marine Sanctuaries Act, NOAA has broad discretion to enact guidelines and regulations to provide protection to a number of large whale species, PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 22325 including the humpback whale in key aggregation locations. Humpback whales routinely occur in Stellwagen Bank, Gulf of the Farrallones, Channel Islands, Monterey Bay, Cordell Bank, and Olympic Coast National Marine Sanctuaries. The Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS) was established primarily to provide protections to a key North Pacific humpback whale breeding/nursery area, and therefore, it should contribute to reducing the extinction risk of the Hawaii DPS of the humpback whale. NOAA’s Office of National Marine Sanctuaries recently proposed to expand the boundaries and scope of the HIHWNMS, amend the regulations for HIHWNMS, change the name of the sanctuary, and revise the sanctuary’s terms of designation and management plan (80 FR 16224; March 26, 2015). The purpose of the proposed action is to transition the HIHWNMS from a single-species management approach to an ecosystem-based management approach. As part of these revisions, NOAA proposed to revise the existing HIHWNMS humpback whale approach regulation at 15 CFR 922.184 to help minimize incidences of humpback whale harassment or injury, to reduce adverse behavioral responses, and to limit vessel strikes within the sanctuary (80 FR 16224; March 26, 2015, at 16227). The Stellwagen Bank and Gulf of the Farallones National Marine Sanctuaries, in particular, have active humpback whale research programs and/or have established vessel speed advisories, whale approach guidelines, and other measures to reduce human threats to humpback and other large whale species. These two national marine sanctuaries should contribute to reducing the extinction risk of the West Indies, Mexico, and Central America DPSs, as they provide protections to humpback whales in these DPSs when they are in their feeding grounds. Numerous nations have defined marine protected areas and sanctuaries that provide some protection to humpback whales (Hoyt, 2011), and various nations have developed local regulations or guidelines governing whale watching activities (O’Connor et al., 2009). Hundreds of national laws also exist related directly or indirectly to the conservation of marine mammals (Bettridge et al., 2015, Appendix B). Where appropriate, some of these are discussed in more detail in the DPSspecific sections. E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22326 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules E. Other Natural or Manmade Factors Affecting Its Continued Existence Competition with fisheries, aquaculture, anthropogenic sound, vessel strikes, fishing gear entanglement, and climate change are all factors that may negatively impact humpback whales. The BRT discussed the issue of competition with fisheries at length. In some areas, (e.g., Northern Gulf of Maine and Southeast Alaska) fishermen encircle feeding humpback whales and harvest fish from the bait balls upon which humpback whales feed (D. Matilla, unpublished observation). However, there is no evidence that this impacts the individuals or significantly depletes the food source. In a review of the evidence for interspecific competition in baleen whales, Clapham and Brownell (1996) found it to be extremely difficult to prove that interspecific competition comprises an important factor in the population dynamics of large whales. Aquaculture is not known to be a significant threat to humpback whales. Some entanglements have been recorded off Australia. Colombia has substantial aquaculture activity in inshore areas, but there is no information regarding the impact of this activity on humpback whales. The BRT determined that for most DPSs, aquaculture does not pose a significant threat to humpback whales and should be assigned a low threat level. Sufficient information was not available to determine the threat level to the Western North Pacific and Arabian Sea DPSs. Humans introduce sound intentionally and unintentionally into the marine environment for navigation, oil and gas exploration and acquisition, research, and military activities, to name a few examples. Noise exposure can result in a range of impacts, from those causing little or no impact to those being potentially severe, depending on the source, level, and various other factors. Response to noise varies by many factors, including the type and characteristics of the sound source, distance between the source and the receptor, characteristics of the animal (e.g., hearing sensitivity, behavioral context, age, sex, and previous experience with sound source) and time of day or season. Noise may be intermittent or continuous, steady (nonimpulsive) or impulsive, and may be generated by stationary or moving sources. As one of the potential stressors to marine mammal populations, noise may seriously disrupt communication, navigational ability, and social patterns. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Humpback whales use sound to communicate, navigate, locate prey, and sense their environment. Both anthropogenic and natural sounds may cause interference with these functions. Anthropogenic sound has increased in all oceans over the last 50 years and is thought to have doubled each decade in some areas of the ocean over the last 30 or so years (Croll et al., 2001; Weilgart, 2007; Hildebrand, 2009). High levels of ambient anthropogenic noise are known to elicit behavioral, acoustic, and physiological responses from large whales, though the specific nature of these responses remains largely unknown (Nowacek et al., 2007). Lowfrequency sound comprises a significant portion of this increase and stems from a variety of sources including that primarily from shipping, and an increasing amount from oil and gas exploration in some areas, as well as research and naval activities. Understanding the specific impacts of these sounds on mysticetes is difficult. However, it is clear that the geographic scope of potential impacts is vast as low-frequency sounds can travel great distances under water, but these sounds have the potential to reduce communication space (e.g., shipping was predicted to reduce communication space of singing humpback whales in the northeast by 8 percent; Clark et al., 2009). Humpback whales do not appear to be often involved in strandings related to noise events. There is one record of two whales found dead with extensive damage to the temporal bones near the site of a 5,000 kg explosion which likely produced shock waves that were responsible for the injuries (Ketten et al., 1993; Weilgart, 2007). Other detrimental effects of anthropogenic noise include masking and possible temporary threshold shifts. Masking results from noise interfering with cetacean social communication, which may range greatly in intensity and frequency. Some adjustment in acoustic behavior is thought to occur in response to masking and humpback songs were found to lengthen during LFA sonar activities (Miller et al., 2000). This altered song length persisted 2 hours after the sonar activities stopped (Fristrup et al., 2003). Researchers have also observed diminished song vocalizations in humpback whales during remote sensing experiments 200 km away from the whales’ location in the Stellwagen Banks National Marine Sanctuary (Risch et al., 2012). Hearing loss can also possibly be permanent if the sound is intense enough but there is great variability across individuals and PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 other factors making it difficult to determine a standardized threshold. Excessive noise exposure may be damaging during early individual development, may cause stress hormone fluctuations, and/or may cause whales to leave an area or change their behavior within it (Weilgart, 2007). Some responses are subtle and may occur after the exposure. Humpback whales exposed to underwater explosions and drilling associated with construction activities did not appear to change their behavior in reaction to the surveys but did appear to have reduced orientation abilities. Higher rates of fatal entanglement in fishing gear were observed in the area when whales were exposed to excessive noise, although the cause for this elevated entanglement rate was unclear (Ketten et al., 1993; Todd, 1996). Some studies have found little reaction to noise and indicate potential tolerances to anthropogenic sound over short time and small spatial scales (Croll et al., 2001). There is likely an important distinction between immediate individual reactions to noise and longterm effects of noise exposure to populations. The cumulative and synergistic effects may be more harmful than studies to date have been able to assess. Though some researchers have argued that habituation to sound may occur, this can easily be confused with hearing loss or individual differences in tolerance levels (Bejder et al., 2006). Scientifically recommended mammal sound exposure levels have been determined and vary depending on the sound source strength and the species of marine mammal(s) present (Southall et al., 2007). NMFS has recently updated guidance for temporary threshold shifts and permanent threshold shifts (see: http://www.nmfs.noaa.gov/pr/acoustics/ guidelines.htm). The issue of anthropogenic noise has been an area of intensive research but population-level impacts on cetaceans have not been confirmed. There is little definite information regarding, for example, the interruption of breeding and other behaviors or a resulting reduction in population growth or mortality of individuals. Therefore, the BRT considered this to be a low threat for all DPSs. Collisions between vessels and whales, or ship strikes, often result in life-threatening trauma or death for the cetacean. Impact is often caused by forceful contact with the bow or propeller of the vessel. Ship strikes of humpback whales are typically identified by evidence of massive blunt trauma (fractures of heavy bones and/or hemorrhaging) in stranded whales, E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules propeller wounds (deep slashes or cuts) and fluke/fin amputations on stranded or live whales (e.g., Wiley and Asmutis, 1995). Laist et al. (2001), Jensen and Silber (2003), Vanderlaan and Taggart (2007), and VanWaerebeek and Leaper (2008) compiled information available worldwide regarding documented collisions between ships and large whales (baleen whales and sperm whales). Humpback whales were the second-most commonly reported victims of vessel strikes (following fin whales). Of 292 recorded strikes contained in the Jensen and Silber (2003) database, 44 were of humpback whales. As of 2008, there were more than 143 recorded ship strikes involving humpback whales worldwide (Van Waerebeek and Leaper, 2008); however, the reported number is likely not a full representation of the actual number (particularly in the Southern Hemisphere) as many likely go undetected or unreported (Williams et al., 2011). Reporting of ship strikes is highly variable internationally, with reports required from vessels in the domestic waters of Australia, the United States, and New Zealand but not in other countries. Based on the observations of vessel strike injuries and mortalities, and whale strike mitigation measures described above under Inadequacy of Existing Regulatory Mechanisms, the BRT considers the threat of vessel collisions to be low to moderate, depending on region, and generally increasing. Humpback whales may break through, carry away, or become entangled in fishing gear. Whales carrying gear may die at a later time, become debilitated or seriously injured, or have normal functions impaired, but with no assurance of the incident having been recorded. Of the nations reporting to the IWC between 2003–2008, 64.7 percent (n=11) noted humpback whale by-catch in their waters (Mattila and Rowles, 2010). Whales have been documented carrying gear by fishery observer programs, opportunistic reports, and stranding networks. Some countries (e.g., United States, Canada, Australia, South Africa) have well-developed reporting and response networks that facilitate the collection of information on entanglement frequency and impacts. However, such programs do not guarantee that entanglements are detected; fewer than 10 percent of humpback whale entanglements involving Gulf of Maine humpback whales are reported, despite a strong outreach and response network (Robbins and Mattila, 2004). Furthermore, opportunistic reports that VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 are not screened by experts do not necessarily yield accurate information about events, including gear type, configuration, and original site of entanglement (Robbins et al., 2007b). The likelihood of receiving reports likely varies world-wide due to differences in observer awareness, reporting mechanisms, and possible negative implications for reporting fishermen (Mattila and Rowles, 2010). A study of gear removed from a subset of whales off the U.S. East Coast showed that 89 percent involved pots/traps or gillnet gear (Johnson et al., 2005). However, a wide range of gear types were represented and every part of the gear was found to be capable of entanglement (Johnson et al., 2005). The authors concluded that any line in the water column poses a potential risk of entanglement to humpback whales. Known gear types removed from, or documented on, entangled whales in Alaska between 1990 and 2013 indicated 32 percent of entanglements were from pot gear, 30 percent from gill net, 24 percent from other net, and 14 percent from a combination of longline, seine, mooring line and marine debris (Jensen et al. 2014). This is further supported by the wide range of entangling gear reported in the South Pacific (Neilson, 2006; Lyman, 2009), Newfoundland (Lien et al., 1992), and member nations of the IWC (Mattila and Rowles, 2010). More than half of the humpback whale entanglements examined off the U.S. East Coast involved entanglements around the tail (Johnson et al., 2005). The mouth and flippers are also known attachment sites, but their frequency is more difficult to assess. Scar-based studies have been developed to systematically study the frequency of non-lethal entanglement involving the tail (Robbins and Mattila, 2001; Robbins and Mattila, 2004). These techniques have been used in the Gulf of Maine (e.g., Robbins and Mattila, 2001; Robbins and Mattila, 2004; Robbins et al., 2009), Southeast Alaska (Neilson et al., 2009), and more broadly across the North Pacific Ocean (Robbins et al., 2007a; Robbins, 2009). All populations studied in this manner to date have detected individuals with entanglementrelated injuries. Annual research in the Gulf of Maine since 1997 has shown that a high percentage of individuals exhibit entanglement injuries and that new injuries are acquired at an average annual rate of 12 percent (Robbins et al., 2009). A 2-year study in Southeast Alaska confirmed frequencies of entanglement injuries that were comparable to the Gulf of Maine (Neilson et al., 2009). Research PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 22327 undertaken across the North Pacific as part of the SPLASH project further suggests that entanglement is pervasive, but that interaction rates may be highest among coastal populations (Robbins et al., 2007a; Robbins, 2009). Both eye-witness reports and scarbased studies suggest that independent juveniles are significantly more likely to become entangled than adults (Robbins, 2009). Calves exhibit a lower frequency of entanglement, likely due to having less time in which to have encountered gear (Neilson et al., 2009). Sex differences in entanglement frequency have been observed in some locations and time intervals (Robbins and Mattila, 2001; Neilson et al., 2009), but these effects have not persisted in longer studies (Robbins and Mattila, 2004). Entanglement may result in only minor injury, or potentially may significantly affect individual health, reproduction, or survival. In one study, females with entanglement injuries produced fewer calves than females with no evidence of entanglement; such impacts on reproduction are still under investigation (Robbins and Mattila, 2001). Mark-recapture studies of the fate of entangled whales in the Gulf of Maine suggest that juveniles are less likely than adults to survive (Robbins et al., 2008). Observed entanglement deaths and serious injuries in that region are known to exceed what is considered sustainable for the population (Glass et al., 2009). Most deaths likely go unobserved and preliminary studies suggest that entanglement may be responsible for 3– 4 percent of total mortality, especially among juveniles (Robbins et al., 2009). Much more is known about fishing gear entanglement in the Northern Hemisphere than in the Southern Hemisphere. The BRT noted the commercialization of bycatch off Japan, meaning an entangled whale is legally allowed to be killed and sold on the market (Lukoschek et al., 2009). Therefore, entanglement often leads to death for humpback whales in this region. While the number of reported bycaught animals is not large (3–5), the number of reports has been increasing and reports may not reflect the actual number caught. The BRT also noted that the Mexico population has one of the highest scar rates from nets and lines in the North Pacific, indicating a high entanglement rate. Based on this information, the BRT concluded that the severity of the threat of fishing gear entanglements varies depending on region, ranging from low to high. Climate change has received considerable attention in recent years, with growing concerns about global E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22328 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules warming and the recognition of natural climatic oscillations on varying time scales, such as long-term shifts like the Pacific Decadal Oscillation or short-term ˜ ˜ shifts, like El Nino or La Nina. Evidence suggests that the biological productivity in the North Pacific (Lowry et al., 1988; Quinn and Niebauer, 1995) and other oceans could be affected by changes in the environment. Recent work has found that copepod distribution has shown signs of shifting in the North Atlantic due to climate change (Hays et al., 2005). Increases in global temperatures are expected to have profound impacts on arctic and subarctic ecosystems, and these impacts are projected to accelerate during this century (ACIA, 2004; IPCC, 2007). The IWC has held two workshops on the topic of climate change and cetaceans (IWC, 1997; IWC, 2010a), and the reports of these meetings provide useful summaries on the current state of knowledge on this issue, and on the large uncertainties associated with any projections of impact. It is generally accepted that cetaceans are unlikely to suffer problems because of changes in water temperature per se (IWC, 1997). Rather, global warming is more likely to effect changes in habitats that in turn potentially affect the abundance and distribution of prey in these areas. Factors such as ocean currents and water temperature may render currently used habitat areas unsuitable and influence selection of migration, feeding, and breeding locations for humpback and other whales. Changes in climate and oceanographic processes may also lead to decreased productivity of, or lead to different patterns in, prey distribution and availability. Such changes could affect whales that are dependent on this prey. While these regional or ocean basin-scale changes may occur, the actual magnitude and resulting impacts are not known. All cetacean species have undoubtedly lived through considerable variation in climate (including multiple ice ages, and significant warming events) over the course of their evolutionary history. However, there is little knowledge regarding the ways in which cetaceans dealt with climate change in the past. Examination of bones related to Basque whaling in Canada indicate that the range of bowhead whales (Balaena mysticetus) in the North Atlantic shifted south during the so-called Little Ice Age in medieval times (McLeod et al., 2008). This almost certainly reflected a shift in the distribution of prey because of habitat and associated productivity changes, and it likely reflects the ability VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 of large whales to adapt and extend their range when necessary. There are no data on similar historical shifts by humpback whales. Considerable plasticity in the winter distribution of the species is suggested by the fact that the use of Hawaii as a major breeding ground appears to be a relatively recent phenomenon which occurred sometime in the 20th century (Herman, 1979); the reason for such a shift is not known, but it is important to recognize that the humpback’s winter distribution is not tied to prey resources or biological productivity, a situation which presumably affords the species with flexibility in its colonization of breeding habitats. Climate change may disproportionately affect species with specialized or restricted habitat requirements. The best-known example of this involves dependence upon sea ice, which is thought to represent a major problem for polar bears (Ursus maritimus), given that the species primarily hunts pagophilic ringed seals (Phoca hispida) (Schliebe et al., 2006). This represents a relatively simple and clear-cut example of cause and effect in the climate change debate; unfortunately, the situation for humpback whales and other cetaceans is not nearly as simple, given the complexity of the ecosystems in which they live. Climate change may exacerbate situations in which populations are already small and/or significantly affected by other anthropogenic impacts (such as entanglement or ship strikes). Species which possess little ability to disperse or colonize new habitats will also be particularly vulnerable. None of these factors apply to humpback whales, with the possible exception of the Arabian Sea population, which is thought to be small and vulnerable to entanglement, shipping-related issues and possibly pollution. Furthermore, the uniquely restricted range of this non-migratory population is currently tied to seasonal monsoon-driven biological productivity in a relatively small region; the impact of climate change on this productivity is unknown, as is the ability of these humpback whales to shift their range as may be needed. As noted by IPCC (2007), species in general potentially respond in one of three ways to major changes in climate: Redistribution, adaptation, or extinction. Based upon what is known to date, redistribution is the most likely response for most humpback whales. Most large whales, including humpbacks, undertake extensive movements, both during a feeding PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 season and on migration. These broad ranges (which routinely encompass much of an ocean basin), together with the animals’ ability to withstand prolonged periods of fasting through utilization of fat reserves in their blubber, potentially provide the whales with a means to adapt their ranges in response to major climate-related spatial shifts in biological productivity, notably by seeking out new habitats. This may in fact already be occurring in some places; humpback whales have recently been observed in the eastern Chukchi and Beaufort Seas (Clarke et al., 2013), north of their usual range; this could represent the beginnings of a response to habitat changes relating to diminishing sea ice in the Arctic, although it might also simply reflect a growing population expanding its range. Prior to extensive whaling, humpback whales appear to have been quite common in at least the western (Russian) Chukchi Sea (Zenkovich, 1954; Tomilin, 1967), and are still observed there today (Clarke et al., 2013). The BRT determined that the level of the threat of climate change facing the Southern Hemisphere populations was slightly better understood than that facing the Northern Hemisphere populations. Warming waters are thought to be correlated with a decrease in krill production in the Southern Ocean, and this threat is likely to increase. The future negative impact implied by a low threat assignment is dependent on a substantial decrease in krill populations, a subsequent negative impact on prey resource availability to humpback whales, and lack of suitable alternate prey such as fish. The Southern Ocean is regarded as a relatively simple ecosystem, but even here there are substantial problems in quantifying even the most basic parameters such as prey abundance. Changes in this ecosystem are also driven by cyclic variability on the scale of years to decades (Murphy et al., 2007). Disentangling climate change effects from other forms of variability including periodic physical forcing, requires time series of data that are typically scarce or non-existent in the Southern Ocean (Quetin et al., 2007). The responses of the Southern Ocean ecosystem to climate change are likely to be complex. Sea ice decreases may actually enhance overall primary production but could reduce ice algae production which occurs at a critical time for krill larvae (Arrigo and Thomas, 2004). On the other hand, the location of upwelling of nutrient-rich deep water may change and result in enhanced primary production in areas that are E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules otherwise unfavorable to krill (Prezelin et al., 2000). The problems in assessing the relatively ‘‘simple’’ Southern Ocean illustrate the huge problems involved in predicting future changes in dynamic ecosystems, on scales that range from eddies and fronts to entire ocean basins. Ecosystem models are crude at best. Full ecosystem models involve innumerable parameters, yet data to quantify these— let alone interactions among them— frequently do not exist. The second IWC climate change workshop (IWC, 2010c) noted that data sets for use in assessing impact and modeling the effects of climate change must have: extensive duration (20–30 years or more of information); good temporal resolution to capture variability on inter-annual and longer scales; and sufficient spatial scale. Although long-term studies of humpback whales exist in various locations in both hemispheres, these are often compromised by issues such as sampling bias, data gaps, and inconsistency of methods; furthermore, parallel data of sufficient resolution on environmental variables are often unavailable. The caveat above regarding the difficulty of disentangling climate change effects from other variables applies equally to determining the reasons for any observed changes in demographic parameters of humpback whales. It is instructive to compare the conclusions of the two IWC climate change workshops, separated as they were by more than a decade. The report of the 1996 workshop (IWC, 1997) notes that: ‘‘. . . given the uncertainties in modeling climate change at a suitable scale and thus modeling effects on biological processes . . . at present it is not possible to model in a predictive manner the effects of climate change on cetacean populations.’’ Thirteen years later, the second workshop came to much the same conclusion (IWC, 2010c), finding that: ‘‘. . . improvements in climate models, as well as models that relate environmental indices to whale demographics and distribution had [sic] occurred. However, all models remain subject to considerable uncertainty.’’ The BRT assigned climate change a low threat level to all Southern Hemisphere populations based on current impacts to the populations. The threat posed by climate change to Northern Hemisphere humpback whale populations is very uncertain, but the BRT thought it unlikely that climate change was a major extinction risk factor. Melting and receding ice sheets may open more feeding habitat for VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 humpback whales in the Northern Hemisphere. However, humpback whales in the Northern Hemisphere do not feed primarily in Arctic waters (which are likely to be the most significantly altered by climate change), and the extent to which Arctic habitats may change to support aggregations of prey sought by humpback whales is unknown. Overall, it is clear that humpback whales worldwide have exhibited considerable resilience despite a whaling history that removed the great majority of animals from most populations. This resilience, together with the species’ flexibility in diet and apparent plasticity in its distribution, provides some optimism that humpback whales can adapt to significant environmental changes wrought by global warming. Although we cannot predict how climate change may affect humpback whales in the long term, at present most studied populations appear to be recovering well, and it seems very unlikely that any population will face extinction as a result of climate issues within the foreseeable future. At this time, the record does not support a conclusion that climate change is likely to influence extinction risk to humpback whales in the foreseeable future. West Indies DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Human population growth and associated coastal development represent potential threats to this DPS in certain areas of the West Indies, as well as in regions of high human population density in the high-latitude feeding range. The major breeding habitats of Silver and Navidad Banks are sufficiently remote from land that direct human impact is for the most part unlikely. The largest concentration of humpback whales in a West Indies habitat that is adjacent to the coast ´ occurs in Samana Bay, Dominican Republic (Mattila et al., 1994). There, tourism has spurred an increase in coastal development, which has presumably introduced a rise in runoff and effluent discharge into the waters of the bay. To date, there is no evidence of observable impact on the humpback whales that visit the region, but no studies have been conducted; that the whales do not feed in these tropical waters likely decreases their risk from such point source pollution. As noted above, although whales are found elsewhere in the West Indies, densities outside Dominican Republic PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 22329 waters are relatively low. Much of the additional habitat is in the waters of small islands in the Leeward and Windward groups, where any coastal runoff is likely to be effectively dispersed by highly dynamic water movements driven by frequently strong trade winds. In some feeding grounds, coastal runoff, vessel traffic and other human activities represent a potential threat to humpback whales from this DPS. This is likely to be most pronounced off the Mid-Atlantic and northeastern United States, and least relevant in remote offshore areas such as Greenland, Labrador and the Barents Sea. A study of contaminants in humpback whales from the Gulf of Maine found elevated levels of polychlorinated biphenyls (PCBs), polybrominated diphenyl ethers (PBDEs), and chlordanes (Elfes et al., 2010), although the authors concluded that these likely did not represent a conservation concern. Extensive oil and gas development and extraction occur in the southern portion of the humpback whale’s West Indies range, in the Gulf of Paria off Venezuela, but nothing is known of the impacts of this on the whales (Swartz et al., 2003). Energy exploration and development in this area are expected to increase. The best documented UME for humpback whales attributable to disease occurred in 1987–1988 in the North Atlantic, when at least 14 mackerelfeeding humpback whales died of saxitoxin poisoning (a neurotoxin produced by some dinoglagellate and cyanobacteria species) in Cape Cod, Massachusetts (Geraci et al., 1989). The whales subsequently stranded or were recovered in the vicinity of Cape Cod Bay and Nantucket Sound, and it is highly likely that other unrecorded mortalities occurred during this event. Such events have been linked to increased coastal runoff. During the first 6 months of 1990, seven dead juvenile (7.6 to 9.1 m long) humpback whales stranded between North Carolina and New Jersey. The significance of these strandings is unknown. Additional UMEs occurred in the Gulf of Maine in 2003 (12–15 dead humpback whales on Georges Bank), 2005 (7 in New England), and 2006–7 (minimum of 21 whales), with no cause yet determined but HABs potentially implicated (Gulland, 2006; Waring et al., 2009). In the Gulf of Maine in 2003, a few sampled individuals among 16 humpback whale carcasses were found with saxitoxin and domoic acid (produced by certain species of diatoms, a different type of algae (Gulland, 2006)). The BRT discussed the possible E:\FR\FM\21APP2.SGM 21APP2 22330 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 levels of unobserved mortality that may be resulting from HABs and determined that, as the West Indies population had been affected by HABs in the past, it is likely experiencing a higher level of HAB-related mortality than is detected. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Subsistence hunting in the North Atlantic occurs in Greenland and the island of Bequia in St. Vincent and the Grenadines in the Lesser Antilles (Reeves, 2002). Greenland began hunting humpback whales before 1780 (Reeves, 2002). As the take of bowhead whales decreased between the years 1750 and 1850, humpback whales became a more frequent target (Reeves, 2002). Beginning in 1986, the IWC has not granted any catch limit for humpback whales to Denmark on behalf of Greenland, though Greenland reported 14 infractions over the period 1988–2006. In 2010, a catch limit was reinstated, and 27 humpbacks were killed between 2010 and 2012. In 1986, St. Vincent and the Grenadines, on behalf of the native community of Bequia, asked for a humpback catch limit from the IWC, based on its history of artisanal whaling in the community and the small number of whales taken (Reeves, 2002). Bequia currently retains an IWC ‘‘block’’ catch limit of up to 24 whales over a 6-year period (2013–2018) (IWC, 2012); they took 4 whales in 2013. While this subsistence hunting kills some West Indies DPS humpback whales in their breeding and feeding grounds, it is not likely contributing significantly to extinction risk of this DPS. Humpback whales represent a major attraction for tourists in many parts of the world, and in the West Indies their presence supports a large seasonal ´ whale-watching industry in Samana Bay (Dominican Republic). Although humpback whales can become remarkably habituated to ecotourismbased vessel traffic, whale-watching excursions have the potential to disturb or even injure animals. On feeding grounds such as the Gulf of Maine, where a large whale-watching industry exists, the extreme reaction of habitat displacement has not been observed; this may partly be due to the existence of some guidelines for the operation of whale-watching tours, as well as the fact that the whales are tied to specific areas by a key resource (i.e., food). Since whales do not eat while in sub-tropical waters in winter, they are theoretically far less constrained in their choice of habitat; consequently, if the whales are faced with high enough pressures from VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 noise or other disturbance, they might be able to leave one breeding area and move to another. It is not clear whether recent anecdotal reports linking a decline in ´ humpback whale abundance in Samana Bay with increased cruise ship traffic are valid, but the potential exists to drive whales out of a breeding ground. The large number of whale-watching vessels and increasing presence of ´ cruise ships in Samana Bay suggest that it is very important to assess the effect of this traffic on the behavior and habitat use of the whales there. Currently, disturbance from whale watching is probably not a major concern for Silver Bank. Although a small number of dive boats operate ‘‘swim-with-whales’’ tours there, their activities are regulated by the Dominican Republic government, and are limited to a very small section of the available habitat. There is currently no commercial or recreational activity on Navidad Bank. With the exception of the Gulf of Maine, there is minimal utilization of humpback whales for whale-watching or ecotourism elsewhere in the North Atlantic. This DPS is exposed to some scientific research activities in waters off the United States, Canada, and West Indies, but at relatively low levels. Adverse population effects from research activities have not been identified, and overall impact is expected to be low and stable. It is unlikely that overutilization is contributing to the extinction risk of the West Indies DPS. C. Disease or Predation There are no recent studies of disease in this population, but also no indication that it is a major risk. A study of apparent killer whale attacks in North Atlantic humpback whales found scarring rates ranging from 8.1 percent in Norwegian waters to 22.1 percent off western Greenland; scarring rates among whales observed in the West Indies ranged from 12.3 percent to 15.3 percent (Wade et al., 2007). It is clear that most killer whale attacks occur on first-year calves prior to arrival in high-latitudes (Wade et al., 2007). However, this is not regarded as a serious threat to population growth. D. Inadequacy of Existing Regulatory Mechanisms A moratorium on oil and gas exploration has been in place in the Mid-Atlantic region since the early 1980s. In March 2010, President Barack Obama announced plans to open the Mid-Atlantic and South Atlantic planning areas to oil and gas PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 exploration. The Federal Government had scheduled a lease sale offshore of Virginia, to take place in 2011. These lease sale plans were cancelled in May 2010 following the Deepwater Horizon oil spill in the Gulf of Mexico. In December 2010, the Secretary of the Interior announced a ban on drilling in Federal waters off the Atlantic coast through 2017. While this ban remains in place, the Bureau of Ocean Energy Management is in the process of issuing a final programmatic environmental impact statement on possible geologic and geophysical activities along the Atlantic Outer Continental Shelf (OCS) from Delaware to midway down Florida’s east coast. The PEIS considers the potential acoustic and other impacts of these activities on marine mammals. These activities will provide new data for the next 5-year OCS oil and gas program for the South and Mid-Atlantic OCS and for possible oil and gas leasing in the 2017–2022 period. In Nova Scotia, oil and gas exploration and development began in 1967. Canadian government estimates show that Nova Scotia’s oil and gas resource potential is significant. In Nova Scotia, there are currently two producing offshore natural gas projects, the Sable Offshore Energy Project SOEP and Deep Panuke. In 1988, Canada implemented a moratorium on oil and gas development on Georges Bank, to the southwest of Nova Scotia. In 2010, Canada extended the moratorium, which was set to expire at the end of 2012, until December 31, 2015. Silver Bank, Navidad Bank, and ´ portions of Samana Bay have been designated by the Dominican Republic as a humpback whale sanctuary (Hoyt, 2013). Whalers from the St. Vincent and the Grenadines island of Bequia have a quota from the IWC; most recently, Bequia was given a ‘‘block’’ quota of up to 24 whales over a six-year period (2013–2018) (IWC, 2012). The Scientific Committee of the IWC has determined that the allowed quota would have no impact on the growth rate of this population (IWC, 2012). As noted above, whale-watching activities in the Silver Bank are regulated by the Dominican Republic government, and there is currently no commercial or recreational activity on Navidad Bank. Under the authority of the ESA and the MMPA, we have issued regulations such as the NMFS right whale ship strike regulations in the U.S. North Atlantic and other regional or local maritime speed zones, and these help reduce the threat of vessel collisions involving humpback whales. The ship E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules collision reduction rule established regulations to limit vessel speeds to no more than 10 knots (18.5 km/hr), applicable to all vessels 65 feet (19.8m) or greater in length in certain locations and at certain times of the year along the east coast of the U.S. Atlantic seaboard (73 FR 60173; October 10, 2008). In 1999, NMFS and the U.S. Coast Guard established two Mandatory Ship Reporting systems aimed at reducing ship strikes of North Atlantic right whales. When ships greater than 300 gross tons enter two key right whale habitats—one off the northeast United States and one off the southeast United States—they are required to report to a shore-based station. In return, ships receive a message about whales, their vulnerability to ship strikes, precautionary measures the ship can take to avoid hitting a whale, and locations of recent sightings. While these systems were designed to protect right whales specifically, they are expected to also reduce the risk of ship strikes to other large whales, including humpback whales (NMFS, 2008). On February 18, 2005, the U.S. Coast Guard (USCG) announced a Port Access Route Study (PARS) of Potential Vessel Routing Measures to Reduce Vessel Strikes of North Atlantic Right Whales (70 FR 8312). Potential vessel routing measures were analyzed and considered to adjust existing vessel routing measures in the northern region of the Atlantic Coast, which included Cape Cod Bay, the area off Race Point at the northern end of Cape Cod, and the Great South Channel. As a result of this information, we recommended realigning and amending the location and size of the western portion of the TSS in the approach to Boston, Massachusetts. The TSS was revised in 2007, and the new configuration appeared on nautical charts soon thereafter. On November 19, 2007, the USCG announced a second PARS to Analyze Potential Vessel Routing Measures to Reduce Vessel Strikes of North Atlantic Right Whales while also Minimizing Adverse Effects on Vessel Operations (72 FR 64968). The study area included approaches to Boston, MA, specifically, a northern right whale critical habitat in the area east and south of Cape Cod, MA, and the Great South Channel, including Georges Bank out to the exclusive economic zone boundary. In the second PARS, the USCG recommended establishing a seasonal Area to be Avoided (ATBA) and amending the southeastern portion of the TSS to make it uniform throughout its length. On behalf of the United States, the USCG submitted a series of VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 proposals to the IMO (see International Maritime Organization discussion above) to modify the TSS and to establish an ATBA, which were subsequently endorsed by the IMO (Silber et al., 2012) and as described in the IMO’s publication, ‘‘Ships’ Routing’’ 2008. In 2009, the TSS was revised and the ATBA was established. This was followed by a notice in the Federal Register announcing these changes (75 FR 77529; December 13, 2010) and NMFS added the changes to applicable nautical charts. While the measures are designed specifically for the North Atlantic right whale, they are expected to benefit humpback whales cooccurring in these areas. In 2007, a program of auto-detection buoys and real-time whale vocalization detection information was incorporated into the Boston TSS as mitigation for liquefied natural gas (LNG) ship strike risk, primarily as a result of an ESA Section 7 consultation with the Maritime Administration. This program, stipulated as a condition of the consultation, was designed to reduce the threat of vessel collisions with right whales and other listed large whale species, including humpback whales in and around the boundaries of Stellwagen Bank National Marine Sanctuary. When right whales are autodetected in the vicinity, LNG vessels are required to travel at speeds of 10 knots or less, a measure that almost certainly reduces the likelihood of vessel strikes of humpback whales occurring in the area as well. E. Other Natural or Manmade Factors Affecting Its Continued Existence The largest potential threats to the West Indies DPS are entanglement in fishing gear and ship strikes; these occur primarily in the feeding grounds, with some documented in the mid-Atlantic U.S. migratory grounds. There are no reliable estimates of entanglement or ship-strike mortalities for most of the North Atlantic. During the period 2003– 2007, the minimum annual rate of human-caused mortality and serious injury (from both entanglements and ship collisions) for the Gulf of Maine feeding population averaged 4.4 animals per year (Waring et al., 2009). Off Newfoundland, an average of 50 humpback whale entanglements (range 26–66) was reported annually between 1979 and 1988 (Lien et al., 1988); another 84 were reported entangled in either Newfoundland or Labrador from 2000–2006 (Waring et al., 2009). Not all entanglements result in mortality (Waring et al., 2009). However, all of these figures are likely to be underestimates, as not all entanglements PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 22331 are observed. A study of entanglementrelated scarring on the caudal peduncle of 134 individual humpback whales in the Gulf of Maine suggested that between 48 percent and 65 percent had experienced entanglements (Robbins and Mattila, 2001). Ship strike injuries were identified for 8 percent (10 of 123) of dead stranded humpback whales between 1975–1996 along the U.S. east coast, 25 percent (9 of 36) of which were along midAtlantic and southeast states (south of the Gulf of Maine) between Delaware Bay and Okracoke Island North Carolina (Wiley and Asmutis, 1995). Ship strikes made up 4 percent of observed humpback whale mortalities between 2001–2005 (Nelson et al., 2007) and 7 percent between 2005–2009 (Henry et al., 2011) along the U.S. east coast, and the Canadian Maritimes. Among strandings along the mid and southeast U.S. coastline during 1975–1996, 80 percent (8 of 10) of struck whales were considered to be less than 3 years old based on their length (Laist et al., 2001). This suggests that young whales may be disproportionately affected. However, those waters are thought to be used preferentially by young animals (Swingle et al., 1993; Barco et al., 2002). It should be noted that ship strikes do not always produce external injuries and may therefore be underestimated among strandings that are not examined for internal injuries. Underwater noise can potentially affect whale behavior, although impacts are unclear. Concerns about effects of noise include behavioral disruption, interference with communication, displacement from habitats and, in extreme cases, physical damage to hearing (Nowacek et al., 2007). Singing humpback whales have been observed to lengthen their songs in response to low-frequency active sonar (Miller et al., 2000) and reduce song duration from distant remote sensing (Risch et al., 2012). Hatch et al. (2008) conducted a study analyzing commercial vessel traffic in the Stellwagen Bank National Marine Sanctuary and its effect on ambient noise. This study revealed significantly elevated and widespread ambient noise levels due to vessel traffic, but further research is needed to determine the direct impacts to marine mammals. Because of the low level of human activity on Silver and Navidad Banks, noise is currently not a concern in this ´ area. Samana Bay, however, already has much vessel activity and therefore has the potential for considerable impact on whales from noise. Noise sources include whale-watching vessels, which approach whales closely and thus E:\FR\FM\21APP2.SGM 21APP2 22332 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules presumably create a loud acoustic environment in close proximity to the animals, and cruise ships, which may be more distant but whose size guarantees that, at certain frequencies, noise levels in the bay will be very high. There are also additional sources in the form of container ships or other commercial vessels that enter the bay periodically. Underwater noise levels are expected to increase. The BRT considered offshore aquaculture to be a low, but increasing, threat to this DPS and competition with fisheries a low threat to this DPS. Overall population level effects from global climate change for this DPS are not known; nonetheless, any potential impacts resulting from this threat will almost certainly increase. Currently, climate change does not appear to pose a significant threat to the growth of this DPS now or in the foreseeable future. HABs, vessel collisions, and fishing gear entanglements are likely to moderately reduce the population size and/or the growth rate of the West Indies DPS. All other threats, with the exception of climate change (unknown severity), are considered likely to have no or minor impact on population size or the growth rate of this DPS. Cape Verde Islands/Northwest Africa DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range tkelley on DSK3SPTVN1PROD with PROPOSALS2 B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Because the breeding range of this DPS is largely unknown, the importance of anthropogenic disturbance (from activities such as whale-watching, offshore aquaculture, fishing gear entanglements, and scientific research) to this DPS is largely unknown. At 19:24 Apr 20, 2015 Jkt 235001 C. Disease or Predation There is little to no information on the impacts of disease, predation, or parasites on this DPS. D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the Cape Verde Islands/Northwest Africa DPS were identified. E. Other Natural or Manmade Factors Affecting Its Continued Existence There is little to no information on the impacts of vessel collisions, climate change, or anthropogenic noise on the Cape Verde Islands/Northwest Africa DPS, although each is expected to increase. Competition with fisheries and offshore aquaculture were considered low threats to this DPS. The threats of HABs, disease, parasites, vessel collisions, fishing gear entanglements, and climate change to this DPS are unknown. All other threats to this DPS are considered likely to have no or minor impact on the population size and/or growth rate. Western North Pacific DPS Habitat conditions for this DPS are poorly known. Some members of the population use the waters around the Cape Verde Islands for breeding and calving, but where the remaining hypothesized fraction goes is unknown. In considering the Cape Verde Islands/ Northwest Africa DPS, it was noted that oil spills occur off West Africa, but these levels are thought to be lower than in some other regions and the impact of non-catastrophic spills on humpback whales when they are on the breeding grounds was not considered significant. The threat of energy exploration to the Cape Verde Islands/Northwest Africa population was considered low. There is little to no information on the impacts of HABs on this DPS. VerDate Sep<11>2014 present, threats appear low relative to other populations, but again, much of the distribution of individuals from the Cape Verde Islands/Northwest Africa DPS is unknown. There is no current or planned commercial whaling in this area. A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Humpback whales in the Western North Pacific are at some risk of habitat loss or curtailment from a range of human activities. Confidence in information about, and documentation of, these activities is relatively good, except on the unknown breeding grounds included in this DPS. Given continued human population growth and economic development in most of the Asian region, these threats can be expected to increase. Coastal development, including shipping, and habitat degradation are potential threats along most of the coast of Japan, South Korea and China. Organochlorines and mercury are found in relatively high levels in most cetaceans along the Asian coast (Simmonds, 2002). Although the threat to the health of this DPS is unknown, the accumulation of these pollutants can be expected to increase over time. The BRT noted that the Sea of Okhotsk currently has a high level of energy exploration and development, and these activities are likely to expand with little regulation or oversight. The PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 BRT determined that the threat posed by energy exploration to the Okinawa/ Philippines DPS it identified is medium, but noted that there was low certainty regarding this since specifics of feeding location (on or off the shelf) are unavailable. If feeding activity occurs on the shelf in the Sea of Okhotsk, energy exploration in this area could impact what is likely one of the most depleted subunits of humpback whales. The threat posed by energy exploration to the Second West Pacific DPS identified by the BRT was unknown. As above, naturally occurring biotoxins from dinoflagellates and other organisms are known to exist within the range of this DPS, although known humpback whale deaths attributable to biotoxin exposure do not exist in the Pacific. The occurrence of HABs is expected to increase with the growth of various types of human-related activities. The level of confidence in the predicted increase is moderate. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes There are no proposals for scientific, aboriginal/subsistence or commercial hunting of humpback whales in the North Pacific under consideration by the IWC at this time. Some degree of illegal, unreported or unregulated (IUU) exploitation, including ‘commercial bycatch whaling,’ has been documented in both Japan and South Korea through genetic identification of whale meat sold in commercial markets (Baker et al., 2000; Baker et al., 2006). Genetic monitoring of Japanese markets (1993– 2009) identified humpback whale as the source of 17 whale meat products. These are believed to have been killed through direct or indirect fisheries entanglement (Steel et al., 2009). In Japan and Korea, it is legal to kill and sell any entangled whale as long as the take is reported; there is suspicion that this provides an incentive for intentional ‘‘entanglements,’’ though the level of such intentional takes is currently unknown (Lukoschek et al., 2009). Some degree of IUU exploitation is also possible in other regions within the range of humpback whales in the Western North Pacific DPS, including Taiwan and the Philippines, given past histories of whaling. The full extent of IUU exploitation is unknown. Official reports of whales taken as bycatch entanglement and destined for commercial markets are considered to be incomplete (Lukoschek et al., 2009). Some poaching is reported to occur in Korean waters and is suspected off Japan (Baker et al., 2002; IWC 2005c), E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules and for this reason the threat of whaling to the Western North Pacific DPS was determined to be medium. There is some whale-watching and non-lethal scientific research in Japanese waters, primarily in Ogasawara and Okinawa, but this is at low levels and not thought to pose a risk to this DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 C. Disease or Predation The evidence of killer whale attacks on humpback whales in this DPS is low (6–8 percent) relative to other North Pacific humpback whales (Steiger et al., 2008). Certainty in this information is considered moderate and the magnitude is expected to remain stable. There are no reports of disease in this DPS and levels of parasitism are unknown. Trends in the severity of disease and parasitism are also unknown. D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the Western North Pacific DPS were identified. A continuing source of potential adverse impacts to humpback whales is interactions with vessels, including whale-watching and fishing vessels. NMFS issued a final rule (66 FR 29502; May 31, 2001) effective in 2001 in waters within 200 nautical miles (370 km) of Alaska, making it unlawful for a person subject to the jurisdiction of the United States to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale or (c) disrupt the normal behavior or prior activity of a whale. Exceptions to this rule include approaches permitted by NMFS; vessels which otherwise would be restricted in their ability to maneuver; commercial fishing vessels legally engaged in fishery activities; and state, local and Federal government vessels operating in official duty (50 CFR 224.103(b)). This rule provides some protection from vessel strikes to a portion of Western North Pacific DPS individuals while in their feeding grounds in the Aleutian Islands, though the size and location of the area present some challenge to enforcement. Its effectiveness could be improved through greater general public awareness of the 100-yard (91.4-m) regulation, particularly with regard to ‘‘placing a vessel in path of oncoming humpback . . .’’ and ‘‘operate at slow safe speed when near a humpback whale.’’ E. Other Natural or Manmade Factors Affecting Its Continued Existence Humpback whales in the Western North Pacific DPS are likely to be VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 exposed to relatively high levels of underwater noise resulting from human activities that may include commercial and recreational vessel traffic, and military activities. Overall populationlevel effects of exposure to underwater noise are not well established, but exposure is likely chronic and at relatively high levels. As vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. The level of confidence in this information is moderate. The likely range of the Western North Pacific DPS includes some of the world’s largest centers of human activities and shipping. Although reporting of ship strikes is requested in the Annual Progress reports to the IWC, reporting by Japan and Korea is likely to be poor. A reasonable assumption, although not established, is that shipping traffic will increase as global commerce increases; thus, a reasonable assumption is that the level of the threat will increase. The threat of ship strikes was therefore considered to be medium for the Okinawa/Philippines portion of this DPS and unknown for the Second West Pacific portion of this DPS. The BRT discussed the high level of fishing pressure in the region occupied by the Okinawa/Philippines population (a small humpback whale population). Although specific information on prey abundance and competition between whales and fisheries is not known in this area, overlap of whales and fisheries has been indicated by the bycatch of humpback whales in set-nets in the area. The BRT determined that competition with fisheries is a medium threat for this DPS, given the high level of fishing and small humpback whale population. The Fisheries Agency of Japan considers whales to be likely competitors with some fisheries, although direct evidence of these interactions is lacking for humpback whales in the region (other than net entanglement). Whales along the coast of Japan and Korea are at risk of entanglement related mortality in fisheries gear, although overall rates of net and rope scarring are similar to other regions of the North Pacific (Brownell et al., 2000). The threat of mortality from any such entanglement is high, given the incentive for commercial sale allowed under Japanese and Korean legislation (Lukoschek et al., 2009). The reported number of humpback whale entanglements/deaths has increased for Japan since 2001 as a result of improved reporting, although the actual number of entanglements may be underrepresented in both Japan and Korea (Baker et al., PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 22333 2006). The level of confidence in understanding the minimum magnitude of this threat is medium for the Okinawa/Philippines portion of this DPS and low for the Second West Pacific portion of this DPS, given the unknown wintering grounds and primary migratory corridors. Overall population level effects from global climate change are not known; nonetheless, any potential impacts resulting from this threat will almost certainly increase. The level of confidence in the magnitude of this threat is poor. In summary, energy development, whaling, competition with fisheries, and vessel collisions are considered likely to moderately reduce the population size or the growth rate of the Okinawa/ Philippines portion of the DPS, and fishing gear entanglements are considered likely to seriously reduce its population size or growth rate. Other threats are considered likely to have no or minor impact on population size and/ or the growth rate, or are unknown, for the Western North Pacific DPS. In general, there is great uncertainty about the threats facing the Second West Pacific portion of this DPS. Hawaii DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Other than its Hawaiian Islands breeding area, the Hawaii DPS inhabits some of the least populated areas in the United States (Alaska) and Canadian (Northern British Columbia) coastal waters. Coastal development, which may include such things as port expansion or waterfront development, occurs in both the United States and Canada; runoff from coastal development in Hawaii and continued human population growth are potential threats. Confidence in information about, and documentation of, these activities and their impacts is moderate. Given continued human population growth in the region, the threat can be expected to increase. This DPS had the lowest levels of DDTs, PCBs, and PBPEs observed for North Pacific humpback whales sampled on all their known feeding grounds except Russia, between 2004 and 2006; in particular, levels were lower than observed in humpback whales from the U.S. West Coast, as well as the North Atlantic’s Gulf of Maine (Elfes et al., 2010). The levels observed in all areas are considered moderate and not expected to have a significant effect on population growth (Elfes et al., 2010). Confidence in this E:\FR\FM\21APP2.SGM 21APP2 22334 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules information is moderate, but the trend is unknown. In March 2010, Interior Secretary Salazar and President Obama announced a landmark decision to cancel a lease sale scheduled for 2011 (in the 5.6 million acre block in Bristol Bay, southeastern Bering Sea), and to reinstate protection for the region until 2017. However, if exploration and drilling were authorized after 2017, it would represent a potential threat to this DPS in its feeding grounds. Naturally occurring biotoxins from dinoflagellates and other toxins exist within the range of this DPS. Although humpback whale mortality as a result of exposure has not been documented in this DPS, it has been reported from other feeding grounds, so it is considered a possibility. HAB occurrence is expected to increase with the growth of various types of humanrelated activities, and with increasing water temperatures. The level of confidence in exposure to HABs and in these assertions is moderate. tkelley on DSK3SPTVN1PROD with PROPOSALS2 B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes There are no planned commercial whaling activities in this DPS’ range; however, modest aboriginal hunting has been proposed in British Columbia (Reeves, 2002). Certainty in this information is considered relatively high and the magnitude is expected to remain stable. This DPS is exposed to whalewatching activities in both its feeding and breeding grounds, but at medium (Hawaii and Alaska) to low levels (British Columbia). Adverse population effects from whale-watching have not been documented, and overall impact of whale-watching is expected to be low and stable. This DPS is exposed to some scientific research activities in both U.S. and Canadian waters, but at relatively low levels. Adverse population effects from research activities have not been identified, and overall impact is expected to be low and stable. C. Disease or Predation Evidence of killer whale attacks (15– 20 percent) in the humpback whales found in Hawaiian waters is moderate (Steiger et al., 2008) and lower for Alaska and Canada. This is not regarded as a serious threat to population growth. Shark predation likely occurs as well, although evidence suggests the primary targets are the weak and unhealthy. Certainty in this information is considered relatively high and the magnitude is expected to remain stable. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 There are no known reports of unusual disease or mass mortality events for this DPS. Trends may increase slightly in response to other stressors, such as warming oceans and other stressors that may compromise immune systems. Levels of parasitism in this population are not well known, although approximately 2/3 of humpback whales in Hawaii show some evidence of permanent, raised skin lesions, which may be a reaction to an as yet unknown parasite (Mattila and Robbins, 2008). However, there is no evidence that these ‘‘bumps’’ impact health or reproduction, or cause mortality. Trends in the severity of this threat are unknown. D. Inadequacy of Existing Regulatory Mechanisms There has been a moratorium on offshore oil drilling in the waters of Northern British Columbia since 1972, but there has also been a recent proposal to lift the ban, driven largely by local government (British Columbia Energy Plan, 2007). If so, this potential threat could increase in this portion of the habitat. A continuing source of potential adverse impacts to humpback whales is interactions with vessels, including whale-watching and fishing vessels. Under the authorities of section 11(f) of the ESA and section 112(a) of the MMPA, NMFS issued a final rule (66 FR 29502; May 31, 2001) effective in 2001 in waters within 200 nautical miles (370 km) of Alaska, making it unlawful for a person subject to the jurisdiction of the United States to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale or (c) disrupt the normal behavior or prior activity of a whale (50 CFR 224.103(b)). Exceptions to this rule include approaches permitted by NMFS; vessels which otherwise would be restricted in their ability to maneuver; commercial fishing vessels legally engaged in fishery activities; and state, local and Federal government vessels operating in official duty. This rule provides some protection from vessel strikes to Hawaii DPS individuals while in their feeding grounds, though its effectiveness could be improved by a greater enforcement presence and greater general public awareness of the 100-yard (91.4-m) regulation, particularly with regard to ‘‘placing a vessel in path of oncoming humpback . . .’’ and ‘‘operate at slow safe speed when near a humpback whale.’’ PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 Vessel approach regulations are also in place for humpback whales in Hawaiian waters (50 CFR 224.103(a)). These are similar to the Alaska regulations, with an additional prohibition against operating any aircraft within 1,000 feet (300 m) of any humpback whale. The regulations were adopted in 1987 under authority of the ESA and later amended to delete a provision that was inconsistent with the MMPA. See 52 FR 44,912 (November 23, 1987); 60 FR 3,775 (January 19, 1995) (deleting 223.31(b) as mandated by Section 17 of the MMPA Amendments of 1994, Public Law 103– 238, because the MMPA provided that approach to 100 yards (91.4 m) is legal, whereas the regulatory provision had allowed approach only to within 300 yards (274.3 m) in cow/calf areas). As noted above under Section 4(a)(1) Factors Applicable to All DPSs, the Hawaiian Islands Humpback Whale National Marine Sanctuary was established primarily to provide protections to a key North Pacific humpback whale breeding/nursery area, and therefore, it should contribute to reducing the extinction risk of the Hawaii DPS of the humpback whale. Among the regulations in effect in the sanctuary are approach regulations substantially similar to those at 50 CFR 224.103(a) (See 15 CFR 922.184). Although substantially similar, the approach regulations effective in the sanctuary protect humpback whales in a narrower geographic range than do the current ESA approach regulations. Because these regulations apply only within the sanctuary, we seek public comment on whether the sanctuary protections would be sufficient for the protection of humpback whales from vessel interactions throughout the Hawaiian Islands, recognizing that the existing approach regulations at 50 CFR 224.103(a), which were adopted under authority of the ESA only, would no longer be applicable and would need to be removed if this rule becomes final and the Hawaii DPS of humpback whales is not listed under the ESA (See ADDRESSES). Commenters should consider the impacts of the Office of National Marine Sanctuaries’ recent proposal to expand the sanctuary boundaries and strengthen the approach provisions (80 FR 16224, 16227, 16238; March 26, 2015). In Canada, humpback whales are managed by the Department of Fisheries and Oceans (DFO) and legally protected through the Marine Mammal Regulations under the Fisheries Act, 1985. These regulations make it an offense to disturb, kill, fish for, move, tag, or mark marine mammals (ss. 5, 7, E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 11) without a valid license. In 2003, the North Pacific humpback whale population status was assessed as ‘‘threatened’’ by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), and in 2005 the population was listed as ‘‘threatened’’ under Canada’s Species at Risk Act (SARA), affording it legal protection (it is an offense to kill, harm, harass, capture or take a listed species (Section 32(1)). The population’s status was re-assessed as ‘‘special concern’’ in 2011 by COSEWIC. Following public consultation regarding the reclassification of the species, the DFO has referred the assessment of ‘‘special concern’’ back to COSEWIC for further consideration, and the SARA status of North Pacific humpback whale remains unchanged at the publication of the 2013 Recovery Strategy (Fisheries and Oceans Canada. 2013). Should the SARA status of humpback whales remain unchanged, an action plan to implement the 2013 recovery strategy will be completed within 5 years of its final posting on the Species at Risk Public Registry. Hawaii DPS whales should benefit from any protections afforded by SARA when they are in British Columbia feeding grounds. E. Other Natural or Manmade Factors Affecting Its Continued Existence There is suspected interaction with the herring fishery in Southeast Alaska, but impacts to humpback whales are considered to be modest; the level of certainty in this information is moderate and currently under study, and impacts are considered stable because the herring fishery is regulated. Humpback whales may compete with fisheries in British Columbia as well, as they also have a herring fishery, as well as a ‘‘krill’’ fishery. Currently, two modest offshore aquaculture sites are located in Hawaii, and their placement overlaps with humpback whale habitat. However, there have been no known fatal interactions, and indirect impacts from food, waste, or medicines being provided to the cultivated species are likely to be low, as humpback whales do not feed in Hawaii. The level of certainty in this information is high. However, if these and other operations expand to areas of high use by the whales, at a minimum they could physically exclude humpback whales from some of their preferred habitat. Deep-water, finfish aquaculture in Alaska is currently prohibited. However, some shellfish and herring ‘‘pond’’ aquaculture and salmon hatchery pens exist close to shore. There are no known fatal encounters with this type of aquaculture in Alaska; however, VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 there are documented cases of humpback whales becoming entangled in herring ‘‘pond’’ and other aquaculture gear in British Columbia (Baird, 2003). There have been proposals to allow finfish aquaculture in Alaska, which would increase the threat from this activity in this portion of the DPS’ range; however, Alaska State policy is 100 percent against this. The indirect impacts of aquaculture (e.g., on health and abundance of prey from disease or possibly habitat disruption from poor siting) are not well known, but the BRT did not consider these effects to be substantial and rated aquaculture as a low threat. We are unaware of humpback whale entanglement involving aquaculture in Hawaii or in Alaska. However, given decreasing catches of wild fish stocks, and resulting strong incentives to expand aquaculture in Hawaii, the threat to the Hawaii DPS posed by aquaculture is likely to increase. This DPS is likely exposed to moderate levels of underwater noise resulting from human activities, which may include, for example, commercial and recreational vessel traffic, pile driving from coastal construction, and activities in Naval test ranges. Overall population-level effects of exposure to underwater noise are not well established, but exposure is likely chronic. As vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. The level of confidence in this information is moderate. The range of this DPS includes some centers of human activities in both Canadian and U.S. waters. Reports of vessel collisions in Hawaii have increased since 2003, when an extensive educational campaign and hotline number were initiated; however the percentage of these that result in fatality is unknown. Numerous collisions have also been reported from Alaska and British Columbia (where shipping traffic has increased 200 percent in 20 years) (Neilson et al., 2012). According to a summary of Alaska ship strike records, an average of 5 strikes a year was reported from 1978–2011 (Neilson et al., 2012). However, effects in Alaska may be mitigated by the vessel approach regulations discussed above (66 FR 29502; May 31, 2001; 50 CFR 224.103) and by NMFS outreach to the cruise ship industry to share information about whale siting locations. The level of certainty in this information is high. Humpback whale carcasses have been reported in many areas of Alaska, but given the isolated nature of some of these areas, necropsies are not always possible to determine PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 22335 cause of death. In addition, many carcasses likely go unreported, thus ship strike numbers should be considered minimum estimates. A reasonable assumption is that the level of the threat will increase in proportion with increases in global commerce. Although 5–10 ship strikes are reported per year in Hawaii and the actual number of ship strikes is estimated to be potentially one order of magnitude greater than this (Lammers et al., 2003), the BRT still considered this threat level to be minimal, given the very large population size, fast rate of growth observed in this DPS, the vessel approach regulations in Alaska, and NMFS outreach to the cruise ship industry. Recent studies of characteristic wounds and scarring indicate that this DPS experiences a high rate of interaction with fishing gear (20–71 percent), with the highest rates recorded in Southeast Alaska and Northern British Columbia (Neilson et al., 2009). However, these rates represent only survivors. Fatal entanglements of humpback whales in fishing gear have been reported in all areas, but, given the isolated nature of much of their range, observed fatalities are almost certainly under-reported and should be considered minimum estimates. Recent studies in another humpback whale feeding ground, which has similar levels of scarring, estimate that the actual annual mortality rate from entanglement may be as high as 3.7 percent (Angliss and Outlaw, 2008). There is a high level of certainty with regard to this information. The threat is considered to be medium. Overall population level effects from global climate change are not known; nonetheless, any potential impacts resulting from this threat will almost certainly increase. Climate change was not considered to be a major risk to this DPS currently, however. The level of confidence in the magnitude of this threat is low. In summary, fishing gear entanglement is considered to be a medium threat to the Hawaii DPS. All other threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown but assumed to be minor (based largely on the current abundance and population growth trend) for the Hawaii DPS. E:\FR\FM\21APP2.SGM 21APP2 22336 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Mexico DPS tkelley on DSK3SPTVN1PROD with PROPOSALS2 A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Breeding locations used by the Mexico DPS (and migratory routes to get to aggregation areas) are adjacent to large human population centers. The DPS may, therefore, be exposed to adverse effects from a number of human activities, including fishing activities (possible competition with fisheries), effluent and runoff from human population centers as coastal development increases, activities associated with oil and gas development, and a great deal of vessel traffic. Southern California humpback whales were found to have the highest levels of DDT, PCBs, and PBDEs of all North Pacific humpback whales sampled on their feeding grounds (Elfes et al., 2010). The DDT levels detected were greater than those found in the typically more contaminated Gulf of Maine humpback whales, possibly due to the historical dumping of DDT off Palos Verdes Peninsula (Elfes et al., 2010). It is not possible to state unequivocally if population level impacts occur as a result of these contaminant loads, but Elfes et al. (2010) suggested the levels found in humpback whales are unlikely to have a significant impact on their persistence as a population. There are currently numerous active oil and energy leases and offshore oil rigs off the U.S. west coast. Offshore LNG terminals have been proposed for California and Baja California. The feeding grounds for this DPS are therefore an active area with regard to energy exploration and development. However, there are no plans at present to open the West Coast to further drilling. Alternative energies, such as wind and wave energy, may be developed in the future in this region. Currently, the threat posed to this DPS by energy exploration and development is low, and is considered stable. Naturally occurring biotoxins from dinoflagellates and other organisms are known to exist within the range of this DPS, though there are no records of known humpback whale deaths attributable to biotoxin exposure in the Pacific. The occurrence of HABs is expected to increase with nutrient runoff associated with the growth of various types of human-related activities. The level of certainty in the impacts of exposure to HABs is moderate. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 No whaling currently occurs in this DPS’ range. The Mexico humpback whale DPS is exposed to some whale watching activities in both U.S. and Mexican waters, but at low levels. Adverse effects from whale watching have not been documented, and overall impact of whale watching is expected to be low and stable. This DPS is exposed to some scientific research activities in both U.S. and Mexican waters, but at relatively low levels. Adverse effects from research activities have not been identified, and overall impact is expected to be low and stable. C. Disease or Predation With regard to natural mortality of individuals in the Mexico DPS, humpback whales in the California feeding area had a higher incidence of rake marks attributed to killer whale attacks (20 percent) than in other feeding areas (Steiger et al., 2008). The BRT noted that 44 percent of all flukes photographed from the Mexico humpback whale DPS are scarred with killer whale tooth rakes. Most of the attacks are thought to occur on calves in breeding/calving areas, and levels observed in the California group likely result from a propensity for killer whale attacks in Mexican breeding areas (Steiger et al., 2008). Though a factor in the ensured longevity of this DPS, it does not appear to be preventing population recovery (Steiger et al., 2008). The threat of predation was therefore ranked as low or unknown for all DPSs. There is little to no information on the impacts of disease or parasites on the Mexico DPS. D. Inadequacy of Existing Regulatory Mechanisms Under Mexican law, all marine mammals are listed as ‘‘species at risk’’ and are protected under the General Wildlife Law (2000). Amendments to the General Wildlife Law to address impacts to whales by humans include: Areas of refuge for aquatic species; critical habitat being extended to aquatic species (including cetaceans); prohibition of the import and export of marine mammals for commercial purposes (enacted in 2005); and protocol for stranded marine mammals (2011). Mexican Standard 131 on whale watching includes avoidance distances and speeds, limits on number of boats, and protection from noise (no echo PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 sounders). Two protection programs for humpback whales (regional programs for protection) have been proposed for the regions of Los Cabos and Banderas Bay (Bahia de Banderas). NMFS issued a final rule (66 FR 29502; May 31, 2001) effective in 2001 in waters within 200 nautical miles (370 km) of Alaska, making it unlawful for a person subject to the jurisdiction of the United States to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale, or (c) disrupt the normal behavior or prior activity of a whale. Exceptions to this rule include approaches permitted by NMFS; vessels which otherwise would be restricted in their ability to maneuver; commercial fishing vessels legally engaged in fishery activities; state, local and Federal government vessels operating in official duty; and the rights of Alaska Natives. As is true for the Hawaii DPS, this rule provides some protection from vessel strikes to Mexico DPS individuals while in their feeding grounds. E. Other Natural or Manmade Factors Affecting Its Continued Existence This DPS is likely exposed to relatively high levels of underwater noise resulting from human activities. These may include, for example, commercial and recreational vessel traffic, and activities in U.S. Navy test ranges. The overall population-level effects of exposure to underwater noise are not well-established, but exposure is likely chronic and at relatively high levels. As vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. The level of confidence in this information is moderate. Of the 17 records of stranded whales in Washington, Oregon, and California in the NMFS stranding database, three involved fishery interactions, two were attributed to vessel strikes, and in five cases the cause of death could not be determined (Carretta et al., 2010). Specifically, between 2004 and 2008, 14 humpback whales were reported seriously injured in commercial fisheries offshore of California and two were reported dead. The proportion of these that represent the Mexican breeding population is unknown. Fishing gear involved included gillnet, pot, and trap gear (Carretta et al., 2010). Between 2004 and 2008, there were two humpback whale mortalities resulting from ship strikes reported and eight ship strike attributed injuries for unidentified whales in the CaliforniaOregon-Washington stock as defined by NMFS, and some of these may have E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules been humpback whales (Carretta et al., 2010). The Mexico DPS is known to also use Alaska and British Columbia waters for feeding (Calambokidis et al., 2008). Numerous collisions have been reported from Alaska and British Columbia (where shipping traffic has increased 200 percent in 20 years) (Neilson et al., 2012). According to a summary of Alaska ship strike records, an average of 5 strikes a year was reported from 1978– 2011 (Neilson et al., 2012). However, effects in Alaska may be mitigated by the vessel approach regulations discussed above (66 FR 29502; May 31, 2001) and by NMFS outreach to the cruise ship industry to share information about whale siting locations. Overall population level effects from global climate change are not known; nonetheless, any potential impacts resulting from this threat will almost certainly increase. The BRT concluded that currently climate change is not a risk to the DPS, but the level of confidence in the magnitude of this threat is poor. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Mexico DPS, with the following exception: Fishing gear entanglements are considered likely to moderately reduce the population size or the growth rate of the Mexico DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Central America DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Human population growth and associated coastal development, including port expansions and the presence of water desalinization plants, are some of the potential threats to the Central America DPS. The presumed migratory route for this DPS lies in the coastal waters off Mexico and includes numerous large and growing human population centers from Central America north along the Mexico and U.S. coasts. The California and Oregon feeding grounds are the most ‘‘urban’’ of all the North Pacific humpback whale feeding grounds, resulting in relatively constant anthropogenic exposure for the individuals of this DPS. However, the high degree of coastal development is not preventing the increase of humpback whales in this area, and it is considered to be a low level threat. Associated with this proximity to urban areas is a high level of exposure to man-made contaminants. Elevated levels of DDTs, PCBs, and PBPEs have been observed in ‘‘southern California’’ VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 humpback whales; levels were higher than observed in humpback whales from the North Atlantic’s Gulf of Maine feeding ground (Elfes et al., 2010). These levels may be linked to historical dumping of DDTs off the Palos Verdes Peninsula, CA (Elfes et al., 2010). However, the levels observed are not expected to have a significant effect on population growth (Elfes et al., 2010). DDT and PCB levels are likely to decrease in feeding areas because use of these chemicals has been banned in the United States, but PBDEs may still be increasing. Energy exploration and development activities are present in this DPS’ habitat range. There are currently numerous active oil and energy leases and offshore oil rigs off the U.S. west coast. Offshore LNG terminals have been proposed for California and Baja California. The feeding grounds for this DPS are therefore an active area with regard to energy exploration and development. However, there are no plans at present to open the West Coast to further drilling. Alternative energies, such as wind and wave energy, may be developed in the future in this region. Currently, the threat posed to this population by energy exploration and development is low, and is considered stable. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Whale-watching tourism and scientific research occur, at relatively low levels, on both the feeding and breeding grounds of the Central America DPS as well as along the migratory route. Whale-watching is highly regulated in U.S. waters. Many Central American countries also have whalewatching guidelines and regulations in the breeding ground of this population. Whale-watching is therefore not considered a threat to this population. Scientific research activities such as observing, collecting biopsies, photographing, and recording underwater vocalizations of whales occurs throughout this DPS’ range, though no adverse effects from these events have been recorded. No whaling currently occurs in this DPS’ range. C. Disease or Predation There is little information on the impacts of disease, parasites or algal blooms on the Central America DPS. HABs of dinoflagellates and diatoms exist within the feeding range of this DPS, but there have been no records of humpback whale deaths as a result of exposure. The occurrence of HABs is PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 22337 expected to increase with the growth of various types of human-related activities but does not pose a threat to this population currently. Though the occurrence and impacts of predation on humpback whales is not well understood, some evidence of killer whale and shark attacks exists for this DPS. Evidence of killer whale attacks is relatively high in California waters, with 20 percent of humpback whales showing scars from previous attacks (Steiger et al., 2008). Scars from attacks are believed to have originated in the winter when whales are in Mexican and Central American waters. However, this is not regarded as a serious threat to population growth. Shark predation likely occurs as well, though it is not known to what degree; it does not appear to be adversely impacting this DPS. D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the Central America DPS were identified. E. Other Natural or Manmade Factors Affecting Its Continued Existence There is no evidence to suggest that competition with fisheries poses a threat to this DPS. Humpback whales in southern and central California feed on small schooling fish, including sardine, anchovy, and herring, all of which are commercially harvested species. In addition, they also feed on krill, which are not harvested off the U.S. west coast. Humpback whales are known to be foraging generalists. Although their piscivorous prey is subject to naturallyand anthropogenically-mediated fluctuations in abundance, there is no indication that fishery-related takes are substantially decreasing their food supply. This DPS is likely exposed to relatively high levels of underwater noise resulting from human activities, including commercial and recreational vessel traffic, and activities in U.S. Navy test ranges. Exposure is likely chronic and at relatively high levels. It is not known if exposure to underwater noise affects humpback whale populations, and this threat does not appear to be significantly impacting current population growth. Vessel collisions and entanglement in fishing gear pose the greatest threat to this DPS. Especially high levels of large vessel traffic are found in this DPS’ range off Panama, southern California, and San Francisco. Several records exist of ships striking humpback whales (Carretta et al., 2008; Douglas et al., 2008), and it is likely that not all E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22338 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules incidents are reported. Two deaths of humpback whales were attributed to ship strikes along the U.S. West Coast in 2004–2008 (Carretta et al., 2010). Ship strikes are probably underreported, and the level of associated mortality is also likely higher than the observed mortalities. Vessel collisions were determined to pose a medium risk (level 2) to this DPS, especially given the small population size. Shipping traffic will probably increase as global commerce increases; thus, a reasonable assumption is that the level of ship strikes will also increase. Between 2004 and 2008, 18 humpback whale entanglements in commercial fishing gear off California, Oregon, and Washington were reported (Carretta et al., 2010), although the actual number of entanglements may be underreported. Effective fisheries monitoring and stranding programs exist in California, but are lacking in Central America and much of Mexico. Levels of mortality from entanglement are unknown and do vary by region, but entanglement scarring rates indicate a significant interaction with fishing gear. Currently there is no aquaculture activity on the feeding grounds of this DPS, though migrating individuals may encounter some aquaculture operations in coastal waters off Mexico. Humpback whales in this DPS are not considered to be adversely affected by aquaculture. Overall population level effects from global climate change are not known; nonetheless, any potential impacts resulting from this threat will almost certainly increase. Humpback whales feeding off southern and central California have a flexible diet that includes both krill and small pelagic fishes. Acidification of the marine environment has been documented to impact the physiology and development of krill and other calcareous marine organisms, which may reduce their abundance and subsequent availability to humpback whales in the future (Kurihara, 2008). However, the diet flexibility of humpback whales in this region may give this DPS some resilience to a climate change effect on their prey base compared to Southern Hemisphere humpback whales that have a more narrow krill-based diet. Currently, climate change does not pose a significant threat to the growth of this DPS. In summary, vessel collisions and fishing gear entanglements are considered likely to moderately reduce the population size or the growth rate of the Central America DPS. All other threats are considered likely to have no or minor impact on population size and/ VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 or the growth rate, or are unknown for the Central America DPS. Brazil DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Human population growth and associated coastal development represent potential threats to coastal populations of humpback whales. These can take many forms, including chemical pollution, increase in ship traffic and underwater noise levels. The coast of Brazil has experienced various levels of human development within the range of humpback whales. These are of greater intensity along the northeastern coast of the country (between 5° and 12° S), where large human settlements are found (the three main cities—Salvador, Recife and Natal—have 1–3 million inhabitants and have observed population increases of 3 percent per year since the early 1970s) (Instituto ´ Brasileiro de Geografia e Estatıstica, 2010). Such population growth has resulted in a substantial rise in effluent discharge in coastal areas used by humpback whales during the breeding season. The stretch of the coast where the largest concentration of humpback whales is found (Abrolhos Bank, 16°– 18° S) has not had the same level of human growth and is relatively pristine compared to areas farther to the north. There is no evidence that human population growth has had any major direct impact on western South Atlantic humpback whales. In fact, the Brazil DPS has shown strong signs of recovery in the same period in which human growth occurred adjacent to the breeding grounds. Shifts in habitat use and abundance may have occurred on a local basis, but no studies have been conducted to assess these changes. Effects of chemical pollution are largely minimized because these whales do not feed in the tropical wintering grounds. The feeding grounds of this DPS are located in relatively remote offshore areas in the Southern Ocean where human activities have been minimal. While potential impacts are unknown, they are probably small in these areas. The current threat of coastal development to this population was ranked as low, but is considered to be increasing. The construction of new ports along the coast of Brazil has been stimulated by the country’s recent economic growth as well as the rapid development of the oil and gas industry. Therefore, a resultant increase in ship traffic will likely increase the probability of ship strikes and possibly result in greater PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 humpback whale mortality off Brazil. The threat posed by energy exploration and development was ranked low but increasing. The effects of contaminants on this population are unknown. The occurrence of HABs is expected to increase with increased run-off and nutrient input from human-related activities; however, HABs do not pose a threat to this population currently. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes A seasonal humpback whale-watching industry exists in some parts of the wintering grounds off Brazil. In the Abrolhos Bank, the area of greatest humpback whale concentration, whalewatching is usually associated with other tourist activities. The Bank contains large coral reef formations, and the associated biological diversity makes this region an important diving/ snorkelling center. Despite great potential, expansion of whale-watching in this region is difficult because of poor tourism infrastructure and because whales are far away from the coast relative to other areas (Cipolotti et al., 2005). A more established whale-watching industry operates farther to the north, near Praia do Forte and Salvador. Most whale watching tours in Bahia State depart from Praia do Forte (Hoyt and ´ Inıguez, 2008). In other parts of the humpback wintering grounds (e.g., ´ ´ Ilheus, Itacare, Porto Seguro), whalewatching can occur in an opportunistic fashion. Often, fishermen are hired to take groups of tourists to see whales, but these are unregulated and occasional. Because of the relatively small scale, whale-watching activities possibly cause limited, if any, impact on the Brazil DPS of the humpback whale. This threat is considered low. There is currently no commercial whaling in this region. This humpback whale DPS is exposed to scientific research activities, but adverse effects from research activities have not been identified, and overall impact is expected to be low and stable. C. Disease or Predation There are studies of disease in the Brazil DPS of the humpback whale, but no indication that it presents a risk to the DPS. Stranded whales have shown different types of bone pathologies (Groch et al., 2005), but the incidence of these pathologies are not well known. A recent increase in humpback whale mortality has occurred along the coast of Brazil. The number of carcasses seen floating at sea or found ashore in 2010 E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules (96 individuals) was nearly 3 times the average for the period 2002–2009 (29.5 individuals). Mortalities dropped in 2011 (39), but they have increased in subsequent years (47 in 2012; 51 in 2013; 55 to date in 2014, with not many more expected for the rest of 2014) (Milton Marcondes, Humpback Whale Institute Brazil, pers. comm., 2014). The causes for this increased mortality are not well understood and are under investigation (Humpback Whale Institute Brazil, unpublished data). However, while mortalities are high, they are not unusually high. Despite these mortalities, the DPS appears to continue to increase in abundance. Killer whales appear to be one of the main predators of humpback whales, especially of calves and immature individuals (Clapham, 2000). While predation can represent an important source of neonatal/juvenile mortality (Steiger et al., 2008), no studies have been conducted to assess its effects on this DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 D. Inadequacy of Existing Regulatory Mechanisms Diving with whales is prohibited by Federal law in Brazil, but opportunistic whale-watching occurs during diving trips (Morete et al., 2003). Most whalewatching operations are concentrated within the Abrolhos National Park and therefore are highly controlled. The maximum number of boats allowed within the park is 15 (Hoyt, 2000). E. Other Natural or Manmade Factors Affecting Its Continued Existence The threats posed by offshore aquaculture and competition with fisheries were considered low for the Brazil DPS of humpback whales. Entanglements in various types of fishing nets have been increasing in the wintering areas (Zerbini and Kotas, 1998), but there is no current estimate of mortality. Reports from fishermen indicate that a large proportion of entanglements are comprised of calves (Zerbini and Kotas, 1998). In the past 20 years, the number of entanglement cases observed or reported has increased substantially as has the proportion of whales seen in wintering grounds, with evidence (e.g., scars) of entanglement in fishing gear (Siciliano, 1997; Groch et al., 2008)). Interactions of humpback whales with fisheries have been observed throughout the wintering ground, and they seem to be increasing as the population grows and re-occupies new or historical habitats. However, there is currently no assessment on the proportion of entanglements resulting in mortality and no estimates of fisheryrelated mortality for this DPS. The VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 threat of entanglements was considered low but increasing. Ship collisions are a well-known cause of mortality in humpback whales (Laist et al., 2001), but their incidence among humpback whales in the Brazil DPS is not well known. Reports of collisions with whales have been provided by fishermen and recreational boaters. In addition, photographic/ physical evidence of ship strikes has been recorded throughout the wintering grounds off Brazil (e.g., Marcondes and Engel, 2009). These events have been increasing and seem to be correlated with population recovery, but their conservation implications require further studies (Bezamat et al., 2014). In areas of high whale density (e.g., the Abrolhos Bank), collisions between whales and fishing boats have resulted in permanent damage to the boats. The fate of whales involved in these accidents is not known (Andriolo, unpublished data). Ship strikes were considered a low, but increasing, threat to this DPS of humpback whales. The increase in coastal development and ship traffic, the construction of new ports and the expansion of offshore oil and gas extraction have resulted in a rise of underwater noise levels along the breeding range of humpback whales. Concerns about effects of noise include disruption of behavior, interference with communication, displacement from habitats and, in extreme cases, physical damage to hearing (Nowacek et al., 2007). Few studies have been carried out to assess whether and how an increase in noise levels has impacted the Brazil DPS. Research conducted in Abrolhos Bank (Sousa-Lima and Clark, 2008; Sousa-Lima and Clark, 2009) showed that the number of singing whales diminished in the presence of low-frequency boat noise and that singing whales stopped calling and changed direction of movement if the sound source was within 7.5km on average. Anthropogenic noise was considered a low, but increasing, threat to the Brazil DPS of humpback whales. Climate change may impact the Brazil DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), and krill is the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/or distribution. Decreases in krill PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 22339 abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not well known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase, but not in the foreseeable future. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Brazil DPS. Gabon/Southwest Africa DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range For humpback whales using the waters of central western Africa, expanding offshore hydrocarbon extraction activity now poses an increasing threat (Findlay et al., 2006). The degree to which humpback whales are affected by offshore hydrocarbon extraction activity is not known, but it is believed that long-term exposure to low levels of pollutants and noise, as well as the drastic consequences of potential oil spills, could have conservation implications. The Gulf of Guinea region suffers from pollution and habitat degradation, both from major coastal cities (Lagos, Accra, Libreville, Porto-Nevo) that dispense raw sewage and untreated toxic waste into the marine environment (United Nations Environment Programme, 1999), and from unregulated foreign trawling and oil and gas developments (Chidi Ibe, 1996). The practice of mining construction materials from the near-shore coastal zone (e.g., sand and gravel) is also common in this region, which contributes to habitat degradation (Chidi Ibe, 1996). The threat of coastal development is considered low, but increasing. Certain naturally occurring biotoxins from dinoflagellates and other organisms may exist within the range of this DPS, although humpback whale deaths as a result of exposure have not been documented in this DPS. The occurrence of HABs is expected to increase with the growth of various types of human-related activities. The E:\FR\FM\21APP2.SGM 21APP2 22340 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules level of confidence in the predicted increase is moderate. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes No commercial whaling occurs in this DPS’ range. A small hunt, not regulated by the IWC, is also thought to exist in the Gulf of Guinea at the island of Pagalu (Aguilar, 1985; Reeves, 2002). No information exists on the fishery since 1975, but as of 1970, whales were still being taken in the area. This hunt would affect the Gabon/Northwest Africa DPS in the breeding grounds, but we have no information to indicate that it contributes significantly to the extinction risk of the DPS. If there is an aboriginal hunt at Pagalu, it is estimated to be 3 or less individuals per year. Whale-watching in the Gulf of Guinea region is small in scale, with small humpback whale-watching industries ´ ˜ documented in Benin, Gabon, Sao Tome ´ and Prıncipe (O’Connor et al., 2009). Whale-watching in South Africa is mainly focused on right whales, with humpback whales watched opportunistically. Boat-based whalewatching has grown 14 percent in the last decade, and is concentrated in the western Cape region; South Africa now numbers among the top ten destinations for whale-watching worldwide (O’Connor et al., 2009). Whale-watching in Namibia is primarily focused on dolphins, and has seen 20 percent growth since 2008. The threat posed to this DPS by whale-watching is considered low. This humpback whale DPS is exposed to scientific research activities, but adverse effects from research activities have not been identified, and overall impact is expected to be low and stable. C. Disease or Predation There are no reports of disease in this DPS and levels of parasitism are unknown. Predation likely occurs, though it is not known to what degree but it does not appear to be adversely impacting this DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 D. Inadequacy of Existing Regulatory Mechanisms There are regulations in place for all whale-watching activity in South Africa (Carlson, 2007). E. Other Natural or Manmade Factors Affecting Its Continued Existence There is no known/reported competition with fisheries to the Gabon/ Southwest Africa DPS; this threat is therefore considered low and stable. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 The threat of offshore aquaculture is considered low. Certain potential and real effects on cetaceans and other fauna are expected to increase due to the growth of industry activities, including noise disturbance from seismic surveys (Richardson et al., 1995). Changes in their behavioral patterns or displacement from migratory, mating, and especially important calving and nursing habitats could impact reproductive success and calf survival during critical stages of development. Rapid increases in shipping and port construction throughout the Gulf of Guinea (Van Waerebeek et al., 2007) are likely to increase the risks of ship strikes for humpback whales. Whales are reported as stranding in Benin, with wounds suspected as originating from ship strikes (Van Waerebeek et al., 2007). There are no dedicated stranding networks in the region, and ship strikes with oil tankers and other vessels have not been documented. Collisions with vessels are not likely to be a major threat considering the size of the DPS. There are entanglement risks for humpback whales in these regions, including a growing commercial shrimp industry off Gabon (Walsh et al., 2000), and an expansion in unregulated fishing by foreign fleets in Gulf of Guinea waters (Collins, pers. comm.; Chidi Ibe, 1996; Brashares et al., 2004). Entanglement in fishing gear occurs, but it is not likely to be a major threat considering the size of the DPS. Climate change may impact the Gabon/Southwest Africa DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), and krill is the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/or distribution. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Gabon/ Southwest Africa DPS, with the exception of energy exploration posing a moderate threat throughout the west coast of Africa. Southeast Africa/Madagascar DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Human populations are growing rapidly in coastal areas in Madagascar and East Africa, which may contribute, generally, to humpback whale habitat degradation and related negative influences. Until recently, oil and gas reserves in east Africa were largely unexplored. However, recently, a number of offshore seismic oil and gas surveys have been conducted in Mozambique, Tanzania, Madagascar and the Seychelles. As a result, drilling is now either underway or planned in all of these regions (Frynas, 2004; Findlay et al., 2006). As noted elsewhere, such activity brings threats of increased underwater noise from the exploration and development phases themselves, and increased vessel activity; the possibility of an oil spill; possible habitat degradation from such things as drill spoils and dredging; and vessel collisions. In Madagascar, offshore development has been concentrated on the northwest coast; in Mozambique it is concentrated in the Mozambique Basin, Zambezi delta region, while development in Tanzania has been most focused on coastal Zanzibar. Humpback whales occur seasonally in all of these regions. Levels of exposure of humpback whales in this region to various pollutants are not known, nor is the occurrence of HABs. Trends in the extent of this threat likewise are not known. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Whale-watching activities are growing rapidly in waters off Mozambique; yet, these are poorly regulated (O’Connor et al., 2009). Most of these activities are locally based and involve motorized boats, recreational fishing boats, and dive boats. Whale-watching in South Africa is mainly focused on right whales, although the industry at St E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Lucia in KwaZulu Natal province is focused on southwestern Indian Ocean humpback whales. Recent political instability in Madagascar has limited the growth rate of whale-watching activities in this region, although growth between 1998–2008 was still estimated at about 15 percent, with the main industry focused on humpback whales frequenting the Ile Ste Marie/Antongil Bay region, and over 14,000 tourists participating in whale watch tours by 10–15 operators in 2008 (O’Connor et al., 2009). Whale watch tourism in Mayotte is small-scale, but has expanded rapidly, from no industry in 1998 to 10,000 annual whale watchers in 2008 (O’Connor et al., 2009), with a focus on a range of cetacean species. In Mauritius large cetacean watching is a minimal component of the whale watch industry and is therefore unlikely to have much impact (O’Connor et al., 2009). An industry for watching humpback whales in Mauritius commenced in 2008 (Fleming and Jackson, 2011). No commercial whaling occurs in this DPS’ range. This humpback whale DPS is exposed to scientific research activities, but at low levels. Adverse effects from research activities have not been identified, and overall impact is expected to be low and stable. tkelley on DSK3SPTVN1PROD with PROPOSALS2 C. Disease or Predation There is little to no information on the impacts of disease, parasites, or predation on this DPS. D. Inadequacy of Existing Regulatory Mechanisms Apparently, there are no local, national, or regional measures in place or contemplated to reduce the impact of habitat-related threats. There is a voluntary code of conduct for operators of whale-watching boats in waters off Mozambique, but at present this is poorly upheld and no formal regulations or enforcement are currently in place (O’Connor et al., 2009). The whale-watching industry off Madagascar has recently developed some guidelines for the protection of humpback whales, which were passed as legislation in 2000 with local regulations for Ile Sainte Marie (Fleming and Jackson, 2011) and Antongil Bay (Journal Officiel de la Republique de Madagascar, 2000). In the Mascarene Islands, the expanding ´ whale-watching industry in La Reunion (3,000 tourists estimated in 2008) is currently unregulated. There are regulations in place for all whalewatching activity in South Africa (Carlson, 2007). Fishing activities are prohibited in localized marine protected areas in VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Mayotte, Moheli (in the Comoros Archipelago), Madagascar (northeast coast), Aldabra (under protection as a UNESCO World Heritage Site) and the coastal region between Southern Mozambique and South Africa, so entanglement in fishing gear should not be a problem in these areas. E. Other Natural or Manmade Factors Affecting Its Continued Existence Little is known/reported on interaction of humpback whales in this DPS with fisheries, nor are there any current or planned offshore aquaculture sites in the region. These threats are therefore considered low and stable. Information regarding fisheries and other activities is limited. Kiszka et al. (2009) and Razafindrakoto et al. (2008) provided summaries of humpback whale entanglement and strandings based on interviews with artisanal fishing communities. Substantial gillnet fisheries have been reported in the nearshore waters of the coasts of mainland Africa and Madagascar; and to a lesser extent in the Comoros Archipelago, Mayotte and Mascarene Islands, where such practices are hindered by coral reefs and a steep continental slope bathymetry (Kiszka et al., 2009). Stranding reports and observations from Tanzania and Mozambique have mostly implicated gillnets, with most Madagascan entanglements associated with long-line shark fishing (Razafindrakoto et al., 2008). In Mayotte, humpback whales have been observed with gillnet remains attached to them (Kiszka et al., 2009), although no fatalities have yet been documented. Industrial fishing operations, including longlines and drift longlines on fish aggregation devices, purse seine and midwater trawling, occur in waters off Mauritius. The extent of bycatch and entanglement in these waters is unknown (Kiszka et al., 2009). Strandings and bycatch data from 2001– 2005 from South Africa indicated an estimated 15 humpback whales entangled in shark nets (large-mesh gillnets) in KwaZulu Natal province (only one death), while nine stranded whales were reported from the south and east coasts (IWC, 2002b; IWC, 2003; IWC, 2004b; IWC, 2005b; IWC, 2006b). The range of this DPS includes some growing centers of human activities. Although there are no known records of ship struck humpback whales in this region, the amount of vessel traffic suggests this is probably a low-level threat. However, a reasonable assumption is that the amount of vessel traffic, and the level of the threat, is likely to increase as commercial shipping, recreational boating, and PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 22341 whale-watching, oil and gas exploration and development, and fishing activities increase. This DPS is likely exposed to relatively high levels of underwater noise resulting from human activities, including, for example, commercial and recreational vessel traffic, and activities related to oil and gas exploration and development. Overall population-level effects of exposure to underwater noise are not well established, but exposure is likely chronic and at moderate levels. As vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. The level of confidence in this information is moderate. Climate change may impact the Southeast Africa/Madagascar DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), and krill is the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/or distribution. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Southeast Africa/Madagascar DPS, with the exception of fishing gear entanglements posing a moderate threat to the DPS. West Australia DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range The threat posed by energy development to the Western Australia population was considered medium E:\FR\FM\21APP2.SGM 21APP2 22342 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules because of the substantial number of oil rigs and the amount of energy exploration activity in the region inhabited by the whales (indicator CO– 26 in (Beeton et al., 2006)). Additionally, there are proposals for many more oil platforms to be built in the near future, which are highly likely to be executed (Department of Industry and Resources, 2008). Coastally populated areas are increasing rapidly, and while the threat associated with coastal development is currently considered low, it is expected to increase. Although contaminant levels in humpback whales in this region are unknown, the threat level was considered low given what is known of contaminant levels in other populations. There have been no records of humpback whale deaths as a result of exposure to HABs in this DPS, thus the threat is considered low. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes No whaling occurs in this DPS’ range. Whale-watching tourism and scientific research occur, at relatively low levels, throughout this DPS’ range. Therefore, these threats are considered low. C. Disease or Predation There are no recent studies of disease or parasitism in this DPS, but there are no indications that they represent a substantial threat to the DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the West Australia DPS were identified. E. Other Natural or Manmade Factors Affecting Its Continued Existence Competition with fisheries is considered a low threat to humpback whales off the coast of Western Australia due to the lack of spatial and temporal overlap with fisheries and whales. The threat of offshore aquaculture is considered low, but aquaculture activities may be increasing in this region. In the Southern Hemisphere, humpback whales feed almost entirely on krill (Euphausia superba). There is a regulated commercial harvest of krill, but harvest levels are currently small and there is no evidence that this threatens the food supply of humpback whales (Everson and Goss, 1991; Nicol et al., 2008). Coastally populated areas are increasing rapidly, with associated development of ports bringing increased risks of ship strikes. All ship strikes in VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Commonwealth waters must be reported by law, and a summary of these has been provided to the IWC annually since 2006. Since this time there has only been one report concerning a possible humpback ship strike in Western Australian waters (IWC, 2009b). The threat of ship strikes in Western Australia is considered low, but likely increasing. There are 25 records of humpback whale entanglement events between 2003 and 2008 in this region, with western rock lobster fishing gear most frequently implicated (Doug Coughran, pers comm.; IWC, 2004a; IWC, 2005a; IWC, 2006a; IWC, 2007c; IWC, 2008). A rise in marine fishing debris has also been reported for the region (Environment Western Australia, 2007), which suggests that there may be an increasing risk of entanglement. Climate change may impact the West Australia DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/ or distribution. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the West Australia DPS, with the exception of energy exploration posing a moderate threat throughout Western Australia. PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 East Australia DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Whales migrating southward to the feeding grounds, as well as a portion of those migrating north, follow the east coast of Australia, and many or most are confined to a narrow corridor near the coast (Bryden, 1985; Noad et al., 2008) passing several large cities. Increasing coastal development is possible in these areas, but they represent a minor portion of the total migratory route. As with coastal development, sources of pollution for the east Australia DPS are concentrated in a few locations along the migratory route. The breeding area for this DPS is primarily within the Great Barrier Reef Marine Park (Chittleborough, 1965; Simmons and Marsh, 1986), which has a comprehensive set of state and Federal protection laws. However, during tropical floods, farmland runoff may bring significant quantities of pollutants (pesticides, fertilizers) down several rivers that empty into the Great Barrier Reef area (Haynes and MichalekWagnera, 2000). To date there are no known documented impacts of contaminants on humpback whale survival and fecundity. Oil and gas production occurs in Bass Strait (Australian Government, 2006), a region used by some whales of this DPS as they migrate to feeding grounds. Overall, these threats were considered to pose a low risk to this DPS. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Anthropogenic disturbance of this DPS occurs primarily on the breeding ground. Whale-watching tourism in eastern Australia (Queensland) has seen an annual average growth rate of 8.5 percent since 1998 (this includes boat and land-based operations and both whale- and dolphin-watching trips; O’Connor et al., 2009). In New South Wales, boat-based whale- and dolphinwatching has seen a 2.6 percent increase between 2003 and 2008. Scientific research activities on this DPS occur at the feeding grounds, breeding grounds and along the migratory route. Photo-identification studies, biopsy efforts and other field studies do exist. However, adverse effects from research activities have not been documented and threats are considered low. Finally, scientific whaling proposed by Japan in the Antarctica feeding grounds would occur in areas where the East Australia DPS is known to feed (Nishiwaki et al., 2007). E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules However, at this time no whaling in these feeding grounds is occurring. C. Disease or Predation There is little to no information on the impacts of disease, parasites or predation on this DPS. Evidence for killer whale interaction is documented, and 17 percent of photo-identified humpback whales in East Australia show scarring on their flukes, most of which is consistent with interactions with killer whales (Naessig and Lanyon, 2004). There is no evidence to suggest that this level of predation is outside the norm for the DPS. Given the population size and current growth rate, disease, predation and parasitism seem unlikely to pose a significant threat to this DPS. tkelley on DSK3SPTVN1PROD with PROPOSALS2 D. Inadequacy of Existing Regulatory Mechanisms Oil and gas exploration and drilling are prohibited within the Great Barrier Reef Marine Park. Queensland has a substantial whalewatching management program (O’Connor et al., 2009), including restricting access to areas deemed essential for humpback conservation, and Australia has national whalewatching guidelines. With these regulations in place, the BRT considered the threat level from whale-watching to be low. E. Other Natural or Manmade Factors Affecting Its Continued Existence There is no published information on negative impacts of offshore aquaculture, competition with fisheries, or HABs on this DPS. In the Southern Hemisphere, humpback whales feed almost entirely on krill (Euphausia superba). There is a regulated commercial harvest of krill, but harvest levels are currently small and there is no evidence that this threatens the food supply of humpback whales (Everson and Goss, 1991; Nicol et al., 2008). Vessel collisions and entanglement in fishing gear pose the greatest anthropogenic risks to the East Australia DPS. Thirteen ship-strike incidents and five deaths have been reported between 2003 and 2008 (summarized in Fleming and Jackson, 2011) and an additional ship-strike was recorded in 2009 with the whale being seriously injured (IWC, 2010a). Both fishing vessels and commercial vessels have been involved in these incidents. Given the probable increase in fishing, tourism and commercial shipping, the threat is likely to increase. Entanglements are regularly reported along the east coast of Australia and 57 entanglements have been documented between 2003–2008, with 13 confirmed deaths (Fleming and VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Jackson, 2011). In addition, six humpback whales were entangled in shark control nets and released in 2009 (IWC, 2010b). These totals are likely underestimates as not all entanglements are reported and some are not identified to species. The majority were recorded in shark nets and occurred along the migratory route (Fleming and Jackson, 2011). Although not insignificant, given the population size and estimated growth rate, the threat level posed by these factors is considered low. Anthropogenic noise is also a possible threat to this DPS. There are several commercial shipping routes through the Great Barrier Reef breeding ground and along the coastal migratory route that likely result in some underwater noise exposure. Migration through Bass Strait would also expose whales to energy exploration and production noise. There is no information concerning exposure of whales to underwater military activities. Climate change may impact the East Australia DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/ or distribution. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the East Australia DPS. PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 22343 Oceania DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Surface run-off from nickel strip mines causes habitat degradation and pollution of lagoons in New Caledonia, which is one of the largest producers of nickel globally, yet the effect on the surrounding marine environment has been poorly monitored (e.g., de Forges et al., 1998; Labrosse et al., 2000; Metian et al., 2005). The threat to humpback whales in Oceania from coastal development and contaminants was considered low overall. The BRT considered the threats of energy exploration and development and offshore aquaculture to the Oceania population to be low but increasing, due to the expected growth of these activities over the next several decades. The level of threat posed by HABs to humpback whales in Oceania is unknown. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Some local whaling of humpback whales was carried out in French Polynesia (Rurutu), the Cook Islands and Tonga during the 20th century (Reeves, 2002), but this has ceased since 1960 at Rurutu (Poole, 2002), and since 1978 elsewhere (IWC, 1981). It does not appear that Tonga hunted whales before Europeans arrived in the region in the 19th century (Reeves, 2002). Tonga was used as a provisioning station for whaling vessels from the Northern Hemisphere while they operated in the South Pacific. Tongans then began conducting shore-based whaling in the late 1880s or early 1900s, and increasing demand prompted new boats and whalers to enter the growing industry (Reeves, 2002). Catch rates (whales landed) were estimated at 10–20 whales/year for the 1950s and 1960s and at least 3–8 whales/year for the mid-1970s (Reeves, 2002). In 1979, the Tonga Whaling Act was passed after a Royal Decree in 1978, prohibiting the catch of whales on what was originally designated as a temporary basis pending an assessment of the population by the IWC (Keller, 1982; Reeves, 2002; Kessler and Harcourt, 2012). However, no whaling has been carried out in Tonga since then. It is possible that this hunt was contributing significantly to the extinction risk of the Oceania DPS, but since no whaling has occurred there since 1979, it is no longer contributing to the DPS’ extinction risk. Humpback whales are under threat from unregulated scientific whaling in E:\FR\FM\21APP2.SGM 21APP2 22344 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 the Antarctic waters directly to the south of Oceania. None have been taken to date, but an annual catch of 50 humpback whales was proposed by Japan in the 2007/2008 season (Nishiwaki et al., 2007), as part of its JARPA II research program. This has been held in abeyance while Japan considers that progress is being made by the IWC in its meetings on the ‘‘Future of the IWC.’’ It is unlikely that the proposed take of humpback whales will be reinstated in the foreseeable future; in fact, Japan submitted its research proposal for the Antarctic on November 19, 2014, and it did not include any humpback whales (Government of Japan, 2014). Whale-watching tourism exists in all four of the principal survey sites in Oceania, with strong growth in the last decade. There is no boat-based, dedicated whale watching industry in American Samoa at present. Humpback whales have been at particular risk from excessive boat exposure through whale watching in the Southern Lagoon of New Caledonia, where there are currently 24 working operators. Levels of exposure have been unusually high (peaking during weekend periods), with boats at a distance of less than 100m from calves 40 percent of the time and each whale exposed to an average of 3.4 boats for 2 hours daily (Schaffar and Garrigue, 2008). In 2008, commercial tour operators voluntarily signed a code of conduct, and subsequent compliance with this code has significantly reduced the level of daily exposure to boats (South Pacific Whale Research Consortium, 2009). Whale watching and other recreational or research-related activities were deemed by the BRT to pose a low level of threat in this region. C. Disease or Predation Mattila and Robbins (2008) reported raised skin lesions along the dorsal flanks of humpback whales in American Samoa. The lesions differ morphologically from the ‘depressed’ lesions caused by cookie cutter sharks and appear to persist for long periods on the skin, rather than either erupting or healing. There are no reports of these lesions in whaling records, suggesting that this phenomenon is recent. The cause of these lesions is currently unknown (Mattila and Robbins, 2008), but they are not considered a threat to the population. D. Inadequacy of Existing Regulatory Mechanisms Whale sanctuaries (local waters where whaling is prohibited) have since been declared in the Exclusive Economic Zones of French Polynesia, Cook VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Islands, Tonga, Samoa, American Samoa, Niue, Vanuatu, New Caledonia and Fiji (Hoyt, 2005), while whales are protected in New Zealand waters under the New Zealand Marine Mammal Protection Act. Whale watching guidelines are in place in Tonga and New Caledonia, while boat-based whale watching in the Cook Islands, Samoa and Niue is minimal (O’Connor et al., 2009). E. Other Natural or Manmade Factors Affecting Its Continued Existence There is little information available from the South Pacific regarding entanglement with fishing gear; two humpback whales have been observed in Tonga entangled in rope in one instance and fishing net in another (Donoghue, pers. comm.). One humpback mother (with calf) was reported entangled in a longline in the Cook Islands in 2007 (South Pacific Whale Research Consortium, 2008). Entanglement scars have been seen on humpback whales in American Samoa, but there are not enough data to determine an entanglement rate. Available evidence suggests that entanglement is a potential concern in regions where whales and stationary or drifting gear in the water overlap (Mattila et al., 2010). The threat of entanglements was ranked low for the Oceania population. There is little information available from the South Pacific regarding ship strikes. This threat was ranked low but is expected to increase as vessel activity in the region increases. Similarly, this DPS is likely exposed to moderate levels of underwater noise resulting from human activities, which may include, for example, commercial and recreational vessel traffic. Overall population-level effects of exposure to underwater noise are not well established, but as vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. In the Southern Hemisphere, humpback whales feed almost entirely on krill (Euphausia superba). There is a regulated commercial harvest of krill, but harvest levels are currently small and there is no evidence that this threatens the food supply of humpback whales (Everson and Goss, 1991; Nicol et al., 2008). The threat of competition with fisheries was considered low for the Oceania DPS. Climate change may impact the Oceania DPS of humpback whales in multiple ways. Sea level rise, ocean warming and ocean acidification may all negatively impact the reef system, which provides shallow, protected PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 waters for breeding. Ocean acidification also has a documented impact on krill growth and development (Kurihara, 2008), the primary prey item for Southern Hemisphere humpback whales. Krill are tightly associated with sea ice (Brierley et al., 1999; Brierley et al., 2002), and decreasing sea ice may negatively impact krill abundance and/ or distribution. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Oceania DPS. Southeastern Pacific DPS A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Human population growth and associated coastal development, including port development, disruption and possible partitioning of the marine habitat and increased turbidity in coastal waters, are potential threats to the Southeastern Pacific DPS. The presumed migratory route for this population lies in the coastal waters off Costa Rica, Panama, Colombia, Ecuador, Peru, and Argentina and includes some large human population centers in both Central and South America. Currently, the high degree of coastal development in this DPS’ habitat is not substantially affecting the DPS’ size or growth rate, and it is considered to be a low-level threat. Little has been published regarding contaminant levels in this region. However, while levels of DDTs, PCBs, and PBPEs are typically lower in Southern Hemisphere feeding areas than off the east or west coasts of the United States, little research has been done to confirm lower contaminant levels among Southern Hemisphere whales (Fleming and Jackson, 2011). DDT and PCB levels are likely to decrease in feeding areas because use of these chemicals has been banned in many E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules countries, but PBPE use may still be increasing. Man-made contaminants are not considered to be a significant threat to this population. Energy exploration and development activities are present in this DPS’ habitat range. Oil and gas production is currently increasing in the Gulf of ´ Guayaquil, Ecuador (Felix and Haase, 2005). A large number of oil tankers transit through the Straits of Magellan yearly, a notoriously difficult route to navigate. At least one oil spill has resulted from a ship running aground there (Morris, 1988). Energy development is likely to expand if oil and gas reserves are discovered in other locations, but it does not pose a threat to this population now or in the foreseeable future. HABs of dinoflagellates and diatoms exist within the feeding range of this DPS, but there have been no records of humpback whale deaths as a result of exposure in this area. The occurrence of HABs is expected to increase with increased run-off and nutrient input from human-related activities; however, HABs do not pose a threat to this DPS now or in the foreseeable future. tkelley on DSK3SPTVN1PROD with PROPOSALS2 B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Whale-watching tourism and scientific research occur, at relatively low levels, throughout this DPS’ range. Whale-watching tourism occurs along all of the South and Central American countries bordering the habitat of this DPS. Whale-watching industry growth has been significant and approximately half of these countries have whalewatching guidelines in place (Hoyt and ´ Inıguez, 2008). Though some change in behavior of whales near tourism boats has been noted, whale-watching does not pose a threat to this DPS currently. Scientific research activities such as observation, biopsying, photographic studies and recording of underwater vocalizations of whales occur in both the breeding and feeding habitats and along this DPS’ migratory route, though no adverse effects from these events have been recorded. No whaling occurs in this DPS’ range. C. Disease or Predation There is little information available on the impacts of disease or parasitism on this DPS. Predation does not appear to be a current threat to this DPS. Killer whale attacks on humpback whales have been observed in this region, and scarring from killer whale and potentially false killer whale and shark attacks has been documented from photographic VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 ´ ´ catalogues (Florez-Gonzalez et al., 1994; ´ Scheidat et al., 2000; Felix and Haase, 2001). The scarring rate is lower than in some other DPSs. D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the Southeastern Pacific DPS were identified. E. Other Natural or Manmade Factors Affecting Its Continued Existence In the Southern Hemisphere, humpback whales feed almost entirely on krill (Euphausia superba). There is a regulated and growing commercial krill fishery, but harvest levels are currently small and there is no evidence that this threatens the food supply of humpback whales (Everson and Goss, 1991; Nicol et al., 2008). Aquaculture activities are high in waters of Argentina and Chile, but the impact of these activities on this DPS of humpback whales has not been documented and is likely low if few whales use these inland areas. Entanglement was determined to pose a medium threat to this DPS based on stranding and entanglement observations and spatial and temporal overlap with aquaculture activities. This DPS is likely exposed to relatively high levels of underwater noise resulting from human activities, including commercial and recreational vessel traffic, and activities in naval test ranges, and these levels are expected to increase. Especially high levels of large vessel traffic are found off Panama (over 12,000 ship transits annually) and in the Magellan Straits. Naval exercises occur around much of the South American coast annually. It is not known if underwater noise exposure affects humpback whale populations, but this does not currently appear to pose a significant threat to this DPS. No ships have reported striking humpback whales in this region, but incidents may be under-reported, and stranding reports indicate some contribution from vessel collisions (Capella Alzueta et al., 2001; Castro et al., 2008). Shipping traffic will probably increase as global commerce increases; thus, a reasonable assumption is that the level of vessel collisions will increase. Currently, ship strikes are considered a low level threat to this DPS. Entanglement in fishing gear poses the most significant risk to this DPS. The majority of entanglements involve ´ gillnets and purse seines (Felix et al., 1997; Capella Alzueta et al., 2001; Alava et al., 2005; Castro et al., 2008). The artisanal fishing fleet in Ecuador numbers over 15,000 vessels. Scarring PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 22345 rates indicate that close to one third of all observed animals have experienced some level of entanglement (Alava et al., 2005). These scarring rates are similar to those observed off the northeast coast of the United States. Less research effort in the Southeast Pacific region compared to the northeast coast of the United States suggests that this reported scarification rate may even be an underestimate of the actual level of entanglement occurring in the Southeast Pacific. The number of dead and entangled whales off Colombia has increased over the last two decades (Capella Alzueta et al., 2001). Calves comprise over half of all observed entanglement events, a disproportionate value in light of the calf to adult ratio in the DPS (Engel et al., 2006; Neto et al., 2008). Humpback whales in the Southern Hemisphere feed almost entirely on krill (Euphausia superba) and acidification of the marine environment has been documented to impact the physiology and development of krill and other calcareous marine organisms, potentially reducing their abundance and subsequent availability to humpback whales in the future. The life cycle of Euphausia superba is tied to sea ice, making this prey species vulnerable to warming effects from climate change. Decreases in krill abundance have been observed around the Antarctic Peninsula (Atkinson et al., 2004). Overall population level effects from global climate change and anthropogenic noise are not known and the threat was ranked low, based on the premise that krill would need to be substantially reduced in order to put humpback whales at risk of extinction. As discussed above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not think the linkage between climate change and future krill production was sufficiently well understood to rate it as moderate or high risk. Nonetheless, any potential impacts resulting from these threats will almost certainly increase. In summary, fishing gear entanglements are likely to moderately reduce the population size or the growth rate of the Southeastern Pacific DPS, and all other threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown for the Southeastern Pacific DPS. E:\FR\FM\21APP2.SGM 21APP2 22346 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Arabian Sea DPS A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range The BRT determined that the threat posed by energy exploration to the Arabian Sea DPS should be classified as high, given the small population size and the present levels of energy activity. A catastrophic event similar to that of the Deepwater Horizon Oil Spill in the Gulf of Mexico could be devastating to this DPS, especially in light of the yearround presence of humpback whales in this area. The effect of pollutants on cetaceans is a concern in the region, as the Arabian Sea is a center of intense human activity with poor sea circulation, so pollutants can persist for long periods (Minton, 2004). Since the 1970s, the coastal and marine infrastructure in Oman has developed at a rapid rate, with over 80 percent of the population now living within 13 miles from the coast, and expanding development of oil and gas resources and fishing fleets (Minton, 2004). The threats from coastal development and contaminants are ranked low but increasing. tkelley on DSK3SPTVN1PROD with PROPOSALS2 B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes This humpback whale DPS is exposed to minimal scientific research and whale-watching activities. The adverse effects from these activities have not been identified, and overall impact is expected to be low and stable. No commercial whaling occurs in this DPS’ range, although 238 humpback whales were illegally killed in the Arabian Sea by the USSR in 1966 (Mikhalev, 1997). C. Disease or Predation Liver damage was detected in 68.5 percent of necropsied humpback whales in this area during Soviet whaling in 1966, with degeneration of peripheral liver sections, cone-shaped growths up to 20 cm in diameter and blocked bile ducts (Mikhalev, 1997). While this pathology was consistent with infection by trematode parasites, none were identified during necropsy, and the causes of this liver damage remain unknown. Poisonous algal blooms and biotoxins have been implicated in some mass fish, turtle, and possibly cetacean, mortality events on the Oman coast, although no events have yet been known to include humpback whales. Coastal run-off from industrial activities is likely to be increasing rapidly, while regular oil VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 spills in shipping lanes from tankers also contribute to pollution along the coast (e.g., Shriadah, 1999). Tattoo skin lesions were observed in 26 percent of photo-identified whales from Oman (Baldwin et al., 2010). While not thought to be a common cause of adult mortality, it has been suggested that tattoo skin disease may differentially kill neonates and calves that have not yet gained immunity (Van Bressem et al., 2009). The authors also suggested that this disease may be more prevalent in marine mammal populations that experience chronic stress and/or are exposed to pollutants that suppress the immune system. D. Inadequacy of Existing Regulatory Mechanisms No regulatory mechanisms specific to the Arabian Sea DPS were identified. E. Other Natural or Manmade Factors Affecting Its Continued Existence The primary prey of humpback whales in Oman (Sardinella sp.) is also consumed by tuna and other commercial pelagic fish targeted by gillnet fisheries, but the severity of the threat of competition with fisheries is unknown. The BRT did not have information about offshore aquaculture activities in the Arabian Sea. Humpback whales in the Arabian Sea are exposed to a high level of vessel traffic (Baldwin, 2000; Minton, 2004; Kaluza et al., 2010), so the threat of ship strikes was considered medium for this small DPS. This DPS is likely exposed to relatively high levels of underwater noise resulting from human activities, including, for example, commercial and recreational vessel traffic, and activities related to oil and gas exploration and development. Overall population-level effects of exposure to underwater noise are not well-established, but exposure is likely chronic and at moderate levels. As vessel traffic and other activities are expected to increase, the level of this threat is expected to increase. There is high fishing pressure in areas off Oman where humpback whales are sighted. Eight live humpback whale entanglement incidents were documented between 1990 and 2000, involving bottom set gillnets often with weights still attached and anchoring the whales to the ocean floor (Minton, 2004). Minton et al. (2010b) examined peduncle photographs of humpback whales in the Arabian Sea and concluded that at least 33 percent had been entangled in fishing gear at some stage. The threat of fishing gear PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 entanglements in the Arabian Sea is considered high and increasing. The threat posed by climate change to the Arabian Sea DPS of the humpback whale was determined to be slightly higher than to the other DPSs and was assigned medium threat level. This higher threat level is based on the more limited movement of this DPS that both breeds and feeds in the Arabian Sea. Changing climatic conditions may change the monsoon-driven upwelling that creates seasonal productivity in the region. While Northern Hemisphere individuals may be able to adapt to climatic changes by moving farther north, Arabian Sea individuals have less flexibility for expanding their range to cooler regions. Evidence that this DPS has undergone a recent genetic bottleneck and is currently at low abundance (Minton et al., 2010b) suggests that there may be an additional risk of impacts from increased inbreeding (which may reduce genetic fitness and increase susceptibility to disease). At low densities, populations are more likely to suffer from the ‘‘Allee’’ effect, where inbreeding and the heightened difficulty of finding mates reduces the population growth rate in proportion with reducing density. In summary, the Arabian Sea DPS faces unique threats, given that the whales do not migrate, but instead feed and breed in the same, relatively constrained geographic location. Energy exploration and fishing gear entanglements are considered likely to seriously reduce the population’s size and/or growth rate, and disease, vessel collisions, and climate change are likely to moderately reduce the population’s size or growth rate. Ongoing Conservation Efforts When considering the listing, reclassification, or delisting of a species, section 4(b)(1)(A) of the ESA requires us to consider efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect the species. Such efforts would include measures by Native American tribes and organizations, local governments, and private organizations. Also, Federal, tribal, state, and foreign recovery actions (16 U.S.C. 1533(f)), and Federal consultation requirements (16 U.S.C. 1536) constitute conservation measures. We must evaluate any conservation efforts that have not yet been implemented or have not yet been shown to be effective under the joint NMFS/FWS Policy on the Evaluation of Conservation Efforts (PECE) (68 FR 15100; March 28, 2003). For these efforts, we must evaluate the certainty of E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules implementing the conservation efforts and the certainty that the conservation efforts will be effective on the basis of whether the effort or plan establishes specific conservation objectives, identifies the necessary steps to reduce threats or factors for decline, includes quantifiable performance measures for the monitoring of compliance and effectiveness, incorporates the principles of adaptive management, and is likely to improve the species’ viability at the time of the listing determination. The Convention on the Conservation of Migratory Species of Wild Animals (CMS) is an intergovernmental treaty which requires range states to protect migratory species including humpback whales where they occur, conserve or restore habitats, mitigate obstacles to migration, and control other endangering factors. The humpback whale is listed in Appendix I of the CMS (species in danger of extinction throughout all or a significant portion of their range). Parties to CMS are required to prohibit take of Appendix I species. The CMS has developed binding Agreements and nonbinding Memoranda of Understanding (MOU). An MOU for the Conservation of Cetaceans and their Habitats in the Pacific Islands Regions became effective in 2006 and offers a level of protection to the Southern Hemisphere populations of humpback whales and their habitats in this region. The CMS Agreements on the Conservation of (a) Small Cetaceans in the Baltic, North East Atlantic, Irish and North Seas (29.03.1994) and (b) Cetaceans of the Black Seas, Mediterranean and Contiguous Atlantic Area are not designed specifically for the humpback whale but may provide incidental protection to the species. The Bern Convention on the Conservation of European Wildlife and Habitats is a regional European treaty on conservation of wild flora and fauna and their natural habitats and calls for signatories to provide special protection for fauna species listed in Appendix II and III to the convention. The convention is a binding agreement for participating parties, and its aim is to ensure conservation by means of cooperation, including efforts to protect migratory species. The Parties promote national policies and education for the conservation of nature and the integration of conservation into environmental policies. The humpback whale is listed in Appendix II—fauna species to be strictly protected—which prohibits deliberate capture and killing, damage to or destruction of breeding sites, deliberate disturbance of animals during breeding and rearing, and the VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 possession of and internal trade in these animals alive or dead (Council of Europe’s Bern Convention, 2013). The provisions of the Council of the European Union (EU) Directive 92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora (EU Habitats Directive) are intended to promote the conservation of biodiversity in EU member countries. EU members meet the habitat conservation requirements of the network known as Natura 2000. Humpback whales are listed in Annex IV of the convention, which identifies species determined to be in need of strict protection across the European region. Twenty-seven member states work with the same legislative framework to protect species. Actions originating from the EU Habitats Directive that may provide protection to humpback whales in the region include (a) coordinated development of a European Red List of species threatened at the European level (parallel with the IUCN listings); (b) guidance documents on the protection of species listed under the Directive, and on the development of a network of conservation areas in the offshore marine environment and (c) species assessment reports. While not regulatory in nature, these actions are designed to reduce threats and provide a conservation benefit to the Atlantic humpback whales. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was established in 1982 with 25 member countries. Its objective is the conservation of Antarctic marine life, particularly krill and the Antarctic marine ecosystems that depend on krill. The Commission manages fisheries for Antarctic krill and several finfish species with the goal of ensuring longterm sustainability and existing ecological relationships. Numerous additional international or regional treaties, conventions and agreements offer some degree of protection for humpback whales and their habitat (reviewed by Hoyt, 2011). In addition to IWC regulations discussed above under the Section 4(a)(1) factors, the IWC co-ordinates and funds conservation work on many species of cetaceans. This includes work to reduce the frequency of ship strikes, to co-ordinate disentanglement events, and to establish Conservation Management Plans for key species and populations. Recently, the IWC has adopted a Strategic Plan for Whale Watching so as to facilitate the further development of this activity in a way which is responsible and consistent with international best practice (http:// iwc.int/history-and-purpose, accessed February 10, 2014). It is too early to PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 22347 evaluate the effectiveness of this plan under the PECE, but since the impact of whale-watching on all of the humpback whale DPSs is considered to be negligible, even if this plan proves to be extremely effective in reducing impacts of whale-watching on humpback whales, we would not likely conclude that this plan would make the difference between endangered and threatened status or between threatened and not warranted status for any of the humpback whale DPSs. At this time, we are not aware of any other formalized conservation efforts for humpback whales that have yet to be implemented, or which have recently been implemented but have yet to show their effectiveness in removing threats to the species. Therefore, we do not need to evaluate any other conservation efforts under the PECE. Rationale for Revising the Current Global Listing and Replacing It With Listings of DPSs As explained throughout this proposed rule, we have determined that, based on the best currently available scientific and commercial information including the BRT’s recommendations and consideration of the uncertainty involved in its recommendation to identify the Okinawa/Philippines and Second West Pacific populations as separate DPSs, the humpback whale should be recognized under the ESA as a set of 14 separate DPSs. Based on a comprehensive status review and our analysis of demographic factors and the Section 4(a)(1) factors, we have concluded that some of the DPSs qualify as endangered species, some qualify as threatened species, and some do not qualify for listing. Our proposed action here is prompted both by our own review, begun in 2009, and the two delisting petitions we received. Our proposed determinations are based on the best available scientific and commercial information pertaining to the species throughout its range and within each DPS. In this proposed rule, we are identifying 14 DPSs, making listing determinations for each of these DPSs, and proposing to revise the current listing to reflect the new determinations. We find that the purposes of the ESA would be furthered by managing this wide-ranging species as separate units under the DPS authority, in order to tailor protections of the ESA to those populations that warrant protection. Based on a review of the demographics of these DPSs and the five factors contained in ESA section 4(a)(1), we find that the best available science no longer supports a finding that the species is an ‘‘endangered E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22348 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules species’’ throughout its range. We propose to revise the listing for the humpback whale by removing the current species-wide listing and in its place listing 2 DPSs as threatened and 2 as endangered. Ten DPSs are not being proposed for listing because their current status does not warrant listing. Since these DPSs are not currently listed as separate entities, we are proposing to replace the existing listing of the species with separate listings for those DPSs that warrant classification as threatened or endangered, rather than ‘‘delisting’’ those DPSs that do not warrant such classification under our regulations (50 CFR 424.11(d)). However, the effect of our proposed action, if finalized, will be that the protections of the ESA will no longer apply to these 10 DPSs. We note that we have previously reclassified a species into constituent populations and revised the listing to remove one population from the list or assign different statuses to the different populations (e.g., identifying western and eastern populations of the gray whale and removing the eastern one from the endangered species list (59 FR 31094; June 16, 1994); identifying western and eastern DPSs of the Steller sea lion, which had been listed as threatened, and listing the western DPS as endangered (62 FR 24345; May 5, 1997)). The ESA gives us authority to make these listing determinations and to revise the lists of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether ‘‘any species,’’ which is expressly defined to include species, subspecies, and DPSs, is endangered or threatened based on certain factors. Review of the status of a species may be commenced at any time, either on our own initiative through a status review or in connection with a 5-year review under Section 4(c)(2), or in response to a petition. A DPS is not a scientifically recognized entity, but rather one that is created under the language of the ESA and effectuated through our 1996 DPS Policy. We have some discretion to determine whether a species should be reclassified into DPSs and what boundaries should be recognized for each DPS. At the conclusion of the listing review process, Section 4(c)(1) gives us authority to update the lists of endangered species and threatened species to conform to our most recent determinations. This can include revising the lists to remove a species from the lists or reclassifying the listed entity. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Neither the ESA nor our regulations explicitly prescribe the process we should follow where the best available scientific and commercial information indicates that the listing of a taxonomic species should be updated and revised into listings of constituent DPSs. To the extent it may be said that the statute is ambiguous as to precisely how the updated listings should replace the original listing in such circumstances, we provide our interpretation of the statutory scheme. The purposes of the statute are furthered in certain situations where the agency has determined that it is appropriate to revise a rangewide listing in order to ensure that the current lists of endangered and threatened species comport with the best available scientific and commercial information. For example, updating a listing may further the statute’s purpose of recognizing when the status of a listed species has improved to the point that fewer protections are needed under the ESA, allowing for appropriately tailored management for the populations that do not warrant listing and for those remaining populations that do. Where a species, subspecies, or DPS no longer needs protection of the ESA, removing those protections may free resources that can be devoted to the protection of other species. Conversely, disaggregating a listing into DPSs can also sometimes lead to greater protections if one or more constituent DPSs qualify for reclassification to endangered. There is no practicable alternative to simultaneously recognizing the newly identified DPSs and proposing to assign them the various statuses of threatened, endangered, or not warranted for listing to replace the original taxonomic species listing. It would be nonsensical and contrary to the statute’s purposes and the best available science requirement to attempt to first separately list all the constituent DPSs; the best available scientific and commercial information would not support listing all of the DPSs now in order to delist some of them subsequently. Nor would it make sense to attempt to first ‘‘delist’’ the specieslevel listing in order to then list some of the constituent DPSs. Where multiple DPSs qualify for listing as endangered or threatened, it would inherently thwart the statute’s purposes to remove protections of the ESA from all members of the species even temporarily. The approach we are proposing ensures a smooth transition from the current taxonomic species listing to the future listing of certain specified DPSs. PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 After we consider public comment, if we publish a final rule that has the effect of removing specified DPSs from the endangered species list, we will continue to monitor the status of the entire range of the humpback whale. For any DPSs that are listed, monitoring is as a matter of course, pursuant to the obligation to periodically review the status of these species (ESA Section 4(c)(2)). In addition, we will undertake monitoring of any DPSs that are not listed as a result of their improved status (ESA Section 4(g)). Conclusions on the Status of Each DPS Under the ESA Based on the BRT’s DPS conclusions (with the exception that we combined the Okinawa/Philippines and Second West Pacific populations identified by the BRT into the Western North Pacific DPS), the BRT’s assessment of the demographic and ESA section 4(a)(1) factors, and our evaluation of ongoing conservation efforts, we make the following listing determinations. Endangered DPSs We conclude that 2 humpback whale DPSs are in danger of extinction throughout their ranges: The Cape Verde Islands/Northwest Africa DPS and the Arabian Sea DPS. Little is known about the total size of the Cape Verde Islands/Northwest Africa DPS, and its trend is unknown. For the Cape Verde Islands/Northwest Africa DPS, the threats of HABs, disease, parasites, vessel collisions, fishing gear entanglements and climate change are unknown. All other threats to this DPS are considered likely to have no or minor impact on the population size and/or growth rate. The BRT distributed 32 percent of its likelihood points for this DPS to the ‘‘high risk of extinction’’ category, 43 percent to the ‘‘moderate risk of extinction’’ category, and 25 percent to the ‘‘not at risk of extinction’’ category. We have no reason to believe that this DPS’ status has improved since humpback whales within the range of this DPS were listed as endangered. Because of the high likelihood that the abundance of this DPS is low and the considerable uncertainty regarding the risks of extinction of this DPS due to a general lack of data, we propose to retain the Cape Verde Islands/Northwest Africa DPS on the list of endangered species at 50 CFR 224.101. The estimated abundance of the Arabian Sea DPS is less than 100, but its entire range was not surveyed, so it could be somewhat larger. Its trend is unknown. The Arabian Sea DPS faces unique threats, given that the whales do E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 not migrate, but instead feed and breed in the same, relatively constrained geographic location. Energy exploration and fishing gear entanglements are considered likely to seriously reduce the population’s size and/or growth rate, and disease, vessel collisions and climate change are likely to moderately reduce the population’s size or growth rate. The BRT distributed 87 percent of its likelihood points for the Arabian Sea DPS in the ‘‘at high risk of extinction’’ category. We agree with the BRT that the Arabian Sea DPS is at a high risk of extinction, and therefore, we propose to retain the Arabian Sea DPS on the list of endangered species at 50 CFR 224.101. Threatened DPSs We conclude that 2 other DPSs are likely to become in danger of extinction in the foreseeable future throughout their ranges: The Western North Pacific DPS and the Central America DPS. As noted above, in making this determination, we applied the same 60year timeframe as the BRT assumed for the foreseeable future. The abundance of the Western North Pacific DPS is thought to be about 1,100 individuals or more, with unknown trend. All threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown, with the following exceptions: Energy development, whaling, competition with fisheries, and vessel collisions are considered likely to moderately reduce the population size or the growth rate of the Okinawa/ Philippines portion of this DPS. Fishing gear entanglements are considered likely to seriously reduce the population size or the growth rate of the Okinawa/ Philippines portion of this DPS. In general, there is great uncertainty about the threats facing the Second West Pacific portion of this DPS. The BRT distributed 36 percent of its likelihood points for the Okinawa/Philippines portion of the DPS in the ‘‘high risk of extinction’’ category and 44 percent in the ‘‘moderate risk of extinction’’ category, with only 21 percent of the points in the ‘‘not at risk of extinction’’ category. The distribution of likelihood points among the risk categories indicates uncertainty. There was also considerable uncertainty regarding the risk of extinction of the Second West Pacific portion of this DPS, with 14 percent of the points in the ‘‘high risk of extinction’’ category, 47 percent in the ‘‘moderate risk of extinction’’ category, and 39 percent in the ‘‘not at risk of extinction’’ category. The majority of likelihood points were in the ‘‘moderate risk of extinction’’ category VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 for both portions of the Western North Pacific DPS. Given the relatively low population size of the Western North Pacific DPS (estimated to be less than 2,000), the moderate reduction of its population size or growth rate likely from energy development, whaling, competition with fisheries, and vessel collisions, the serious reduction of its population size or growth rate likely from fishing gear entanglements, the fact that the majority of the BRT’s likelihood points were in the ‘‘moderate risk of extinction’’ category for both portions of the DPS, and the considerable uncertainty associated with this, we propose to add the Western North Pacific DPS to the list of threatened species at 50 CFR 223.102. The abundance of the Central America DPS is thought to be about 500 individuals with unknown trend. All threats are considered likely to have no or minor impact on population size and/ or the growth rate or are unknown, with the following exceptions: Vessel collisions and fishing gear entanglements are considered likely to moderately reduce the population size or the growth rate of the Central America DPS. The BRT distributed 28 percent of its likelihood points for the Central America DPS in the ‘‘high risk of extinction’’ category, 56 percent in the ‘‘moderate risk of extinction’’ category, and 16 percent in the ‘‘not at risk of extinction’’ category, but the distribution of votes among the risk categories indicates uncertainty. Given the relatively low population size (estimated to be about 500), the moderate reduction of its population size or growth rate likely from vessel collisions and fishing gear entanglement, the fact that the majority of the BRT’s likelihood points were in the ‘‘moderate risk of extinction’’ category, and the high uncertainty associated with this, we propose to add the Central America DPS to the list of threatened species at 50 CFR 223.102. Pursuant to the second sentence of section 4(d) of the ESA, we propose to extend the prohibitions of Section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species to the Western North Pacific and Central America DPSs of the humpback whale. DPSs Not Warranted for Listing Under the ESA Finally, we conclude that 10 DPSs are neither in danger of extinction throughout all or a significant portion of their ranges nor likely to become so in the foreseeable future: West Indies, Hawaii, Mexico, Brazil, Gabon/ Southwest Africa, Southeast Africa/ PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 22349 Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs. When the BRT first reached its conclusions regarding whether any portions of the ranges of these DPSs were significant, NMFS and the FWS had not yet finalized the SPOIR policy. The draft SPOIR policy that the BRT followed differed from the final SPOIR policy in that a portion of the range of a species was considered ‘‘significant’’ if the portion’s contribution to the viability of the species was so important that, without that portion, the species would be in danger of extinction throughout all of its range. The difference between the draft and final policies is the threshold at which we determine whether a portion is significant. Under the final SPOIR policy the hypothetical loss of the portion being considered would only need to result in the species being threatened throughout its range instead of endangered throughout its range to be considered significant. Before finalizing its report, the BRT was provided with a draft of the final SPOIR policy, which included this lower threshold of ’’threatened’’ for determining whether a portion is significant. Based on the revised SPOIR policy, the BRT revisited its SPOIR determinations and concluded for all DPSs that were at low or no risk of extinction, ‘‘The ‘‘significant portion of its range’’ analyses under the final policy would not have resulted in different conclusions from the analyses conducted under the draft policy.’’ In the North Atlantic, the abundance of the West Indies DPS is much greater than 2,000 individuals and is increasing moderately. The threats of HABs, vessel collisions, and fishing gear entanglements are likely to moderately reduce the population size and/or the growth rate of the West Indies DPS. All other threats, with the exception of climate change (unknown severity), are considered likely to have no or minor impact on population size or the growth rate of this DPS. The BRT distributed 82 percent of its likelihood points for the West Indies DPS to the ‘‘not at risk of extinction’’ category and 17 percent to the ‘‘moderate risk of extinction’’ category. Given the large population size (>2,000), moderately increasing trend, and the high percentage of likelihood points allocated to the ‘‘not at risk of extinction’’ category, we conclude that, despite the moderate threats of HABs, vessel collisions, and fishing gear entanglements and unknown severity of climate change as a threat, the West Indies DPS is not in danger of extinction throughout its E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22350 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules range or likely to become so in the foreseeable future throughout its range. Next, per the SPOIR Policy, we need to determine whether the West Indies DPS is in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range. The BRT noted that there are some regional differences in threats for the West Indies DPS, but it was unable to identify portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. We agree with the BRT’s conclusions and conclude that there are no portions of the DPS that face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPS would be in danger of extinction or likely to become so in the foreseeable future. Therefore, we conclude that the DPS is not in danger of extinction in a significant portion of its range, nor likely to become so in the foreseeable future. We conclude that the West Indies DPS is not endangered or threatened throughout all or a significant portion of its range, and, therefore, we do not propose to list the West Indies DPS as a threatened or endangered species. In the North Pacific, the abundances of the Hawaii and Mexico DPSs are much greater than 2,000 individuals and are thought to be increasing moderately. All threats are considered likely to have no or minor impact on population size and/or the growth rate of these two DPSs or are unknown, with the following exceptions: Fishing gear entanglements are considered likely to moderately reduce the population size or the growth rate of the Hawaii and Mexico DPSs. The BRT distributed 98 percent and 92 percent of its likelihood points for the Hawaii and Mexico DPSs, respectively, to the ‘‘not at risk of extinction’’ category. Given the large population size (>2,000), moderately increasing trend, and high percentage of likelihood points allocated to the ‘‘not at risk of extinction’’ category for both the Hawaii and Mexico DPSs, we conclude that, despite the moderate threat of fishing gear entanglements, the Hawaii and Mexico DPSs are not in danger of extinction throughout their ranges or likely to become so in the foreseeable future. Next, per the SPOIR Policy, we need to determine whether the Hawaii and Mexico DPSs are in danger of extinction or likely to become so in the foreseeable future in a significant portion of their ranges. The BRT noted that there are some regional differences in threats for the Hawaii DPS, but it was unable to VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 identify portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. The BRT noted that there also are some regional differences in threats for the Mexico DPS, and some evidence for minor substructure within the DPS due to multiple breeding locations associated with somewhat distinctive feeding grounds. However, the BRT was unable to identify portions of the DPS that faced particularly high threats compared to other portions of the DPS or that appeared to be at high risk of extirpation. We agree, and we conclude that no portions of either DPS face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPSs would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that neither DPS is in danger of extinction in a significant portion of its range, or likely to become so in the foreseeable future. We conclude that the Hawaii and Mexico DPSs are not endangered or threatened throughout all or a significant portion of their ranges, and we therefore do not propose to list the Hawaii and Mexico DPSs as a threatened or endangered species. In the Southern Hemisphere, all seven DPSs are thought to be greater than 2,000 individuals in population size. The Brazil DPS is increasing either rapidly or moderately. The trend of the Gabon/Southwest Africa DPS is unknown. The trend of the Southeast Africa/Madagascar DPS is thought to either be increasing or stable. The trend of the Oceania DPS is unknown. The West Australia and East Australia DPSs are both large and increasing rapidly. The Southeastern Pacific DPS is thought to either be increasing or stable. In the Southern Hemisphere, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown, with the exception of energy exploration posing a moderate threat to the West Australia and Gabon/Southwest Africa DPSs, and fishing gear entanglements posing a moderate threat to the Southeastern Pacific, Southeast Africa/Madagascar, and Oceania DPSs. The BRT distributed at least 93 percent of their likelihood points to the ‘‘not at risk of extinction’’ category for six DPSs in the Southern Hemisphere (Brazil, Gabon/Southwest Africa, and Southeast Africa/ Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs), thus indicating a high certainty in its voting. For the Oceania DPS, the BRT distributed 68 percent of its points PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 to the ‘‘not at risk of extinction’’ category, indicating moderate certainty, and 29 percent of its points to the ‘‘moderate risk of extinction’’ category, indicating some support. None of the factors that may negatively impact the status of the humpback whale appear to pose a threat to recovery, either alone or cumulatively, for these DPSs. Given the large population sizes (>2,000) for all seven DPSs, the fact that none of these DPSs is known to be decreasing in population size and some are increasing, the high percentage of (or, in the case of the Oceania DPS, the majority of) likelihood points allocated to the ‘‘not at risk of extinction’’ category, and the high certainty associated with six of these extinction risk estimates and moderate certainty associated with the extinction risk estimate for the Oceania DPS, we conclude that none of these seven DPSs are at risk of extinction throughout all of their ranges now or in the foreseeable future. Next, per the SPOIR Policy, we need to determine whether any of these DPSs are in danger of extinction or likely to become so in the foreseeable future in a significant portion of their ranges. The BRT was unable to identify portions of the Brazil, Southeast Africa/Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs that both faced particularly high threats and were so significant to the viability of the DPSs as a whole that, if lost, would result in the remainder of the DPSs being at high risk of extinction. We agree, and we also conclude that no portions of these DPSs face particularly high threats and are so significant to the viability of the DPSs that, if lost, any DPS would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Brazil, Southeast Africa/Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs are not threatened or endangered in a significant portion of their ranges. The BRT concluded that there was some evidence for population substructure within the Gabon/ Southwest Africa DPS, based on an extensive breeding range with some significant genetic differentiation among breeding locations (Rosenbaum et al., 2009). However, the BRT was unable to identify any portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. We agree, and we also conclude that no portions of this DPS face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPS would be E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Gabon/ Southwest Africa DPS is not threatened or endangered in a significant portion of its range. The BRT noted that the Oceania DPS has potentially somewhat greater substructure than most other humpback whale DPSs due to its extended breeding range, though a lack of strong genetic structure indicates there are likely to be considerable demographic connections among these areas. Some threats, such as whale watching in the Southern Lagoon of New Caledonia, appear to be localized. Nonetheless, the BRT was unable to identify any specific areas where threats were sufficiently severe to be likely to cause local extirpation. We agree, and we also conclude that no portion of this DPS faces particularly high threats and is so significant to the viability of the DPS that, if lost, the DPS would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Oceania DPS is not threatened or endangered in a significant portion of its range. We conclude that none of the seven DPSs in the Southern Hemisphere are endangered or threatened throughout all or a significant portion of their ranges, and we therefore do not propose to list the Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs as endangered or threatened species. Monitoring Plan We will work with the states and countries within the range of the ten DPSs that we do not propose for listing (which has the effect of removing them from the endangered species list) to develop a plan for continuing to monitor the status of these DPSs. The objective of the monitoring plan will be to ensure that necessary recovery actions remain in place and to ensure the absence of substantial new threats to the DPSs’ continued existence. In part such monitoring efforts are already an integral component of ongoing research, existing stranding networks, and other management and enforcement programs implemented under the MMPA. These activities are conducted by NMFS in collaboration with other Federal and state agencies, the Western Pacific Fishery Management Council, North Pacific Fishery Management Council, the New England Fishery Management Council, university affiliates, and private research groups. As noted in Bettridge et al. (2015), many regulatory avenues already in existence provide for VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 review of proposed projects to reduce or prevent adverse effects to humpback whales and for post-project monitoring to ensure protection to humpback whales, as well as penalties for violation of the prohibition on unauthorized take under the MMPA for all DPSs that occur in U.S. waters or by U.S. persons or vessels on the high seas. However, the addition and implementation of specific Monitoring Plans will provide an additional degree of attention and an early warning system to ensure that constructively removing these ten DPSs from the endangered species list will not result in the re-emergence of threats to the DPSs. Description of Proposed Regulatory Changes To implement this proposed action we propose to replace the humpback whale listing on the endangered species list at 50 CFR 224.101 with the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs of the humpback whale and add the Western North Pacific and Central America DPSs of the humpback whale to the list of threatened species at 50 CFR 223.102. Prohibitions and Protective Measures Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations and agencies subject to U.S. jurisdiction. Section 4(d) of the ESA directs the Secretary of Commerce (Secretary) to implement regulations ‘‘to provide for the conservation of [threatened] species’’ that may include extending any or all of the prohibitions of section 9 to threatened species. Section 9(a)(1)(g) also prohibits violations of protective regulations for threatened species implemented under section 4(d). We are proposing to extend all of the prohibitions of section 9(a)(1) in protective regulations issued under the second sentence of section 4(d) for the Western North Pacific and Central America DPSs of the humpback whale. No special findings are required to support extending Section 9 prohibitions for the protection of threatened species. See In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F.Supp.2d 214, 228 (D.D.C. 2011); Sweet Home Chapter of Cmties. for a Great Oregon v. Babbitt, 1 F.3d 1, 8 (D.C. Cir.1993), modified on other grounds on reh’g, 17 F.3d 1463 (D.C. Cir. 1994), rev’d on other grounds, 515 U.S. 687 (1995). Sections 7(a)(2) and (4) of the ESA require Federal agencies to consult or confer with us to ensure that activities they authorize, fund, or conduct are not PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 22351 likely to jeopardize the continued existence of a listed species or a species proposed for listing, or to adversely modify critical habitat or proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Examples of Federal actions that may affect the Cape Verde Islands/Northwest Africa, Western North Pacific, and Central America DPSs of the humpback whale include permits and authorizations for shipping, fisheries, oil and gas exploration, and toxic waste and other pollutant discharges, if they occur in U.S. waters or the high seas. Sections 10(a)(1)(A) and (B) of the ESA provide us with authority to grant exceptions to the ESA’s section 9 ‘‘take’’ prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. The type of activities potentially requiring a section 10(a)(1)(A) research/ enhancement permit include scientific research that targets humpback whales, including the importation of non-U.S. samples for research conducted in the United States. Section 10(a)(1)(B) incidental take permits are required for non-Federal activities that may incidentally take a listed species in the course of an otherwise lawful activity. Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA On July 1, 1994, NMFS and the FWS issued an Interagency Cooperative Policy for Endangered Species Act Section 9 Prohibitions (59 FR 34272). The intent of this policy is to increase public awareness of the effect of our ESA 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 be considered likely to result in violation of section 9, as well as activities that will not be considered likely to result in violation. Because the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs occur outside of the jurisdiction of the United States, we are presently unaware of any activities that could result in violation of section 9 of the ESA for these DPSs; nevertheless, the possibility for violations exists (for example, import into the United States). Activities that we believe could result in violation of section 9 prohibitions against ‘‘take’’ of the Western North Pacific and Central America DPSs of the humpback whale include: (1) Unauthorized harvest or E:\FR\FM\21APP2.SGM 21APP2 22352 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS2 lethal takes of humpback whales in the Western North Pacific and Central America DPSs by U.S. citizens; (2) inwater activities conducted by U.S. citizens that produce high levels of underwater noise, which may harass or injure humpback whales in the Western North Pacific and Central America DPSs; (3) U.S. fisheries that may result in entanglement of humpback whales in the Western North Pacific and Central America DPSs; (4) vessel strikes from U.S. ships operating in U.S. waters or on the high seas; and (5) discharging or dumping toxic chemicals or other pollutants by U.S. citizens into areas used by humpback whales from the Western North Pacific and Central America DPSs. We expect, based on the best available information, the following actions will not result in a violation of section 9: (1) Federally funded or approved projects for which ESA section 7 consultation has been completed and necessary mitigation developed, and that are conducted in accordance with any terms and conditions we provide in an incidental take statement accompanying a biological opinion; and (2) takes of humpback whales in the Western North Pacific and Central America DPSs that have been authorized by NMFS pursuant to section 10 of the ESA. These lists are not exhaustive. They are intended to provide some examples of the types of activities that we might or might not consider as constituting a take of humpback whales in the Western North Pacific and Central America DPSs. Effects of This Rulemaking Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); concurrent designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); 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. The main effects of the proposed listings are prohibitions on take, including export and import. If this proposed rule is finalized, the provisions discussed above will no longer apply to the DPSs that are in effect removed from the endangered species list. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 The MMPA provides substantial protections to all marine mammals, such as humpback whales, whether they are listed under the ESA or not. In addition, the MMPA provides heightened protections to marine mammals designated as ‘‘depleted’’ (e.g., no take waiver, additional restrictions on the issuance of permits for research, importation, and captive maintenance), including humpback whales. Section 3(1) of the MMPA defines ‘‘depleted’’ as ‘‘any case in which’’: (1) The Secretary ‘‘determines that a species or population stock is below its optimum sustainable population’’; (2) a state to which authority has been delegated makes the same determination; or (3) a species or stock ‘‘is listed as an endangered species or a threatened species under the [ESA]’’ (16 U.S.C. 1362(1)). Section 115(a)(1) of the MMPA establishes that ‘‘[i]n any action by the Secretary to determine if a species or stock should be designated as depleted, or should no longer be designated as depleted,’’ such determination must be made by rule, after public notice and an opportunity for comment (16 U.S.C. 1383b(a)(1)). It is NMFS’ position that a marine mammal species automatically gains ‘‘depleted’’ status under the MMPA when it is listed under the ESA. In the absence of an ESA listing, NMFS follows the procedures described in section 115(a)(1) to designate a marine mammal species as depleted when the basis for its depleted status is that it is below its optimum sustainable population. This interpretation was recently confirmed by the United States Court of Appeals for the D.C. Circuit. See In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, 720 F.3d 354 (D.C. Cir. 2013). Humpback whales are currently designated as ‘‘depleted’’ under the MMPA because of the species’ ESA listing. NMFS has not separately determined that the humpback whale species is depleted on the basis that it is below its optimum sustainable population. NMFS is currently evaluating what result sections 3(1) and 115(a)(1) of the MMPA require when a species that holds depleted status solely because of its ESA listing is found to no longer warrant ESA listing. Thus, we are currently reviewing whether any DPS of the humpback whale that is not listed under the ESA after a final rule is published would automatically lose depleted status under the MMPA, or whether the agency must undertake additional analysis and complete additional procedures before a change PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 in depleted status may occur. We seek comments from the public regarding different options for construing the relevant provisions of these statutes in harmony and will consider all viable alternatives (see ADDRESSES). This rule also has implications for the approach regulations currently at 50 CFR 224.103(a) and (b), discussed previously. With regard to the regulations in effect in Hawaii (224.103(a)), the delisting of the Hawaii DPS, if finalized, would remove the ESA basis for promulgation of that rule. However, the substantially similar protections in effect within the Hawaiian Islands Humpback Whale National Marine Sanctuary, at 15 CFR 922.184, may provide sufficient protection for the species. We note that the Office of National Marine Sanctuaries has recently proposed to, among other things, expand the sanctuary boundaries and strengthen the protections from approaching vessels (80 FR 16224, 16238; March 26, 2015). We plan to propose, through separate rulemaking, to remove the approach regulations at § 224.103(a) because those regulations are specific to endangered species. If additional protection is determined necessary, we may undertake separate rulemaking pursuant to the MMPA. We request public comment on this issue. With regard to the regulations in effect in Alaska (224.103(b)), the impacts of this proposed rule are different. When the Alaska provisions were adopted, we cited Section 112(a) of the MMPA in addition to Section 11(f) of the ESA as authority (16 U.S.C. 1382(a); 16 U.S.C. 1540(f)). However, because the humpback whale was listed throughout its range as endangered, the rule was codified only in Part 224 of the ESA regulations (which applies to ‘‘Endangered Marine and Anadromous Species’’). The reclassification of the Western North Pacific DPS to threatened, if finalized, would require relocating the provisions from Part 224 to Part 223 (which applies to ‘‘Threatened Marine and Anadromous Species’’). By separate rulemaking, we plan to propose to relocate these provisions to a new section, 223.214 in order to continue the protection of the threatened humpback whales in Alaska, because these provisions have been in effect for 14 years and are important in light of the potential impacts posed by the whalewatching industry, recreational boating community, and other maritime users. We would simultaneously delete current 50 CFR 224.103(b). In the separate rulemaking, we also plan to propose to set out these provisions in Part 216 of Title 50 of the E:\FR\FM\21APP2.SGM 21APP2 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Code of Federal Regulations for the protection of all humpback whales that may occur or transit through the waters surrounding Alaska, to reflect that these provisions were adopted under the MMPA as well as the ESA and are an important source of protection for these marine mammals. We seek public comment on this issue as well. tkelley on DSK3SPTVN1PROD with PROPOSALS2 Peer Review In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing a minimum peer review standard. The intent of the peer review policies is to ensure that listings are based on the best scientific and commercial data available. The BRT enlisted the help of the Marine Mammal Commission (MMC) to coordinate scientific peer review of the June 2012 draft of its status review report. The MMC received comments from five reviewers and these reviews were provided, without attribution, to the BRT. The BRT addressed all peer review comments in the final status review report (Bettridge et al., 2015) being released with the publication of this 12month finding/proposed rule. We conclude that these experts’ reviews satisfy the requirements for ‘‘adequate [prior] peer review’’ contained in the Bulletin (sec. II.2.). Critical Habitat Section 3 of the ESA (16 U.S.C. 1532(5A)) defines critical habitat as ‘‘(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . 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 . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ Section 3 of the ESA also defines the terms ‘‘conserve,’’ ‘‘conserving,’’ and ‘‘conservation’’ to mean ‘‘to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary’’ (16 U.S.C. 1532(3)). Section 4(a)(3)(A)(i) of the ESA requires that, to the maximum extent practicable and determinable, critical habitat be designated concurrently with the listing of a species. Designation of critical habitat must be based on the best scientific data available, and must VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat (16 U.S.C. 1533(b)(2)). 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 (16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of the species. In determining what areas qualify as critical habitat, 50 CFR 424.12(b) requires that NMFS ‘‘consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.’’ The regulations further direct NMFS to ‘‘focus on the principal biological or physical constituent elements . . . that are essential to the conservation of the species,’’ and specify that the ‘‘known primary constituent elements shall be listed with the critical habitat description.’’ The regulations identify primary constituent elements (PCEs) as including, but 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.’’ The ESA directs the Secretary of Commerce to consider the economic impact, the national security impacts, and any other relevant impacts from designating critical habitat, and under section 4(b)(2), the Secretary may exclude any area from such designation if the benefits of exclusion outweigh those of inclusion, provided that the exclusion will not result in the extinction of the species. At this time, critical habitat for the humpback whales in the Western North Pacific and Central America DPSs is not determinable. We will propose critical habitat for the Western North Pacific and Central America DPSs of the humpback whale in a separate rulemaking if we determine that it is prudent to do so. To assist us with that rulemaking, we specifically request information to help us identify the essential features of this habitat, and to what extent those PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 22353 features may require special management considerations or protection, as well as the economic activities within the range of the Western North Pacific and Central America DPSs that could be impacted by critical habitat designation. 50 CFR 424.12(h) specifies that critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within the United States or waters within U.S. jurisdiction. Because the known distribution of the humpback whales in the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs occurs in areas outside the jurisdiction of the United States, no critical habitat will be designated for these DPSs. Public Comments Solicited Relying on the best scientific and commercial information available, we exercised our best professional judgment in developing this proposal to divide the humpback whale into 14 DPSs, retain the Cape Verde Islands/ Northwest Africa and Arabian Sea DPSs on the list of endangered species at 50 CFR 224.101, add the Western North Pacific and Central America DPSs to the list of threatened species and extend all section 9 prohibitions to these DPSs, and remove the other 10 DPSs (West Indies, Hawaii, Mexico, Brazil, Gabon/ Southwest Africa, Southeast Africa/ Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific) from the endangered species list at 50 CFR 224.101. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we solicit comments and suggestions concerning this proposed rule from the public, other concerned governments and agencies, Indian tribal governments, Alaska Native tribal governments or organizations, the scientific community, industry, and any other interested parties. Comments are encouraged on this proposal as well as on the status review report (See DATES and ADDRESSES). Comments are particularly sought concerning: (1) The identification of 3 subspecies of humpback whale comprised of 14 DPSs; (2) The current population status of identified humpback whale DPSs; (3) Biological or other information regarding the threats to the identified humpback whale DPSs; (4) Information on the effectiveness of ongoing and planned humpback whale conservation efforts by countries, states, or local entities; E:\FR\FM\21APP2.SGM 21APP2 tkelley on DSK3SPTVN1PROD with PROPOSALS2 22354 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules (5) Activities that could result in a violation of section 9(a)(1) of the ESA if such prohibitions are applied to the Western North Pacific and Central America DPSs; (6) Whether any DPS of the humpback whale that is not listed under the ESA in a final rule would automatically lose depleted status under the MMPA, or, if not, what analysis and process is required by the MMPA before a change in depleted status may occur. We seek comments regarding different options for construing the relevant provisions of these statutes in harmony; (7) Whether approach regulations should be promulgated under the MMPA for the protection of the Hawaii DPS of the humpback whale, since if this rule becomes final, that DPS will no longer be listed under the ESA, or whether current protections in effect in the Hawaiian Islands Humpback Whale National Marine Sanctuary (at 15 CFR 922.184) are sufficient for the protection of the species from vessel interactions. Commenters should consider the impact of the recent proposal by NOAA’s Office of National Marine Sanctuaries to expand the sanctuary boundaries and strengthen the approach regulations (80 FR 16224; March 26, 2015); (8) Whether approach regulations in effect for the protection of humpback whales in Alaska, currently set forth at 50 CFR 224.103(b), should be relocated to Part 223 (which applies to threatened species) for the continuing protection of the Western North Pacific DPS, and whether these regulations should also be set out in 50 CFR 216 as MMPA regulations for the protection of all humpback whales occurring in that area in light of the fact that the MMPA was one of the original authorities cited in promulgating the regulation; (9) Information related to the designation of critical habitat, including identification of those physical or biological features which are essential to the conservation of the Western North Pacific and Central America DPSs of humpback whale and which may require special management consideration or protection; (10) Economic, national security, and other relevant impacts from the designation of critical habitat for the Western North Pacific and Central America DPSs of humpback whale; and (11) Research and other activities that would be important to include in postdelisting monitoring plans for the West Indies, Hawaii, Mexico, Brazil, Gabon/ Southwest Africa, Southeast Africa/ Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs. VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). We will review all public comments and any additional information regarding the status of the identified DPSs of the humpback whale and will complete a final determination within 1 year of publication of this proposed rule, as required under the ESA. Final promulgation of the regulation(s) will consider the comments and any additional information we receive, and such communications may lead to a final regulation that differs from this proposal. Public Hearings During each public hearing, a brief opening presentation on the proposed rule will be provided before accepting public testimony. Written comments may be submitted at the hearing or via the Federal e-Rulemaking Portal (see ADDRESSES) until the scheduled close of the comment period on July 20, 2015. In the event that attendance at the public hearings is large, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. Public Hearing Schedule The dates and locations for the four hearings are as follows: 1. Honolulu: May 6, 2015, from 6:00 p.m. to 8:00 p.m. at the Japanese Cultural Center, Manoa Ballroom, 2454 South Beretania Street, Honolulu, HI 96826, with an informational open house beginning at 5:30 p.m. Parking is available at the Japanese Cultural Center for $5. 2. Juneau: May 19, 2015, 5 p.m. to 8 p.m. at the Centennial Hall, Hickel Room, 101 Egan Drive, Juneau, AK. 3. Plymouth: June 3, 2015, 6 p.m. to 8:30 p.m., Plymouth Public Library, 132 South Street, Plymouth, MA. 4. Virginia Beach: June 9, 2015, 5 p.m. to 6:30 p.m., at the Hilton Virgina Beach Oceanfront, 3001 Atlantic Ave, Virginia Beach, VA. This will be in conjunction with the Mid-Atlantic Fishery Management Council’s meeting being held during the same week. Special Accommodations These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other accommodations should be directed to Marta Nammack (see ADDRESSES) as soon as possible, but no later than 7 business days prior to the hearing date. PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 Classification National Environmental Policy Act (NEPA) 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 NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216–6.) We are currently reviewing whether any other aspect of this proposed rule will require NEPA analysis. Executive Order (E.O.) 12866, Paperwork Reduction Act, and Regulatory Flexibility Act This rule is exempt from review under E.O. 12866. This proposed rule does not contain a collection of information requirement for the purposes of the 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 analyses required by the Regulatory Flexibility Act are not applicable to the listing process. E.O. 13132, Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this proposed rule; therefore this action does not have federalism implications as that term is defined in E.O. 13132. E.O. 13175, Consultation and Coordination With Indian Tribal Governments The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of E:\FR\FM\21APP2.SGM 21APP2 22355 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175—Consultation and Coordination with Indian Tribal Governments—outlines the responsibilities of the Federal Government in matters affecting tribal interests. Section 161 of Public Law 108–199 (188 Stat. 452), as amended by section 518 of Public Law 108–447 (118 Stat. 3267), directs all Federal agencies to consult with Alaska Native tribes or organizations on the same basis as Indian tribes under E.O. 13175. We intend to coordinate with tribal governments and native corporations which may be affected by the proposed action. We will provide them with a copy of this proposed rule for review and comment, and offer the opportunity to consult on the proposed action. List of Subjects PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 50 CFR Part 223 1. The authority citation for part 223 continues to read as follows: ■ Endangered and threatened species, Exports, Imports, Transportation. Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). 50 CFR Part 224 Endangered and threatened species. Dated: April 15, 2015. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 223 and 224 are proposed to be amended as follows: § 223.102 Enumeration of threatened marine and anadromous species. * Species 1 Common name 2. In § 223.102, in paragraph (e), the table is amended by adding entries for ‘‘Whale, humpback (Central America DPS)’’ and ‘‘Whale, humpback (Western North Pacific DPS)’’ under MARINE MAMMALS in alphabetical order by Common Name to read as follows: ■ Scientific name * * (e) * * * * Citation(s) for listing determination(s) Description of listed entity * Critical habitat ESA Rules Marine Mammals * Whale, humpback (Central America DPS). * Megaptera novaeangliae. Whale, humpback (Western North Pacific DPS). Megaptera novaeangliae. * * * * * Humpback whales that breed along the Pa- [Insert Federal Regcific coast of Costa Rica, Panama, Guaister page where temala, El Salvador, Honduras, and the document beNicaragua in the eastern North Pacific gins], April 21, Ocean or feed almost exclusively off2015. shore of California and Oregon in the eastern North Pacific Ocean, with some feeding off northern Washington/southern British Columbia. Humpback whales that breed or winter in [Insert Federal Regthe area of Okinawa and the Philippines ister page where in the Kuroshio Current (as well as unthe document beknown breeding grounds in the Western gins], April 21, North Pacific Ocean), transitthe 2015. Ogasawara area, or feed in the North Pacific Ocean, primarily in the West Bering Sea and off the Russian coast and the Aleutian Islands. * * * * * NA NA * 223.213 223.213 223.214 * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. 3. Add § 223.213 to subpart B to read as follows: ■ tkelley on DSK3SPTVN1PROD with PROPOSALS2 § 223.213 Western North Pacific and Central America distinct population segments (DPSs) of the humpback whale. Prohibitions. The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species shall apply to the VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 Western North Pacific DPS and the Central America DPS of the humpback whale listed in § 223.102(e). PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 4. The authority citation for part 224 continues to read as follows: ■ PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 Authority: 16 U.S.C. 1531–1543 and 16 U.S.C. 1361 et seq. 5. In § 224.101, in the table in paragraph (h), revise the entry for ‘‘Whale, humpback’’ to read as follows: ■ § 224.101 Enumeration of endangered marine and anadromous species. * * * (h) * * * E:\FR\FM\21APP2.SGM 21APP2 * * 22356 Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Proposed Rules Species 1 Common name Scientific name Citation(s) for listing determination(s) Description of listed entity Critical habitat ESA rules Marine Mammals * * Whale, humpback Megaptera (Arabian Sea DPS). novaeangliae. Whale, humpback whale (Cape Verde Islands/Northwest Africa DPS). * Megaptera novaeangliae. * * * * * Humpback whales that breed or feed in the [Insert Federal RegArabian Sea. ister page where the document begins], April 21, 2015. Humpback whales that breed in waters [Insert Federal Regsurrounding the Cape Verde Islands in ister page where the Eastern North Atlantic Ocean, as the document bewell as an undetermined breeding area gins], April 21, in the eastern tropical Atlantic (possibly 2015. Canary Current) or feed along the Iceland Shelf and Sea and the Norwegian Sea. * * * * * NA NA NA NA * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to turtles while in the water. [FR Doc. 2015–09010 Filed 4–20–15; 8:45 am] tkelley on DSK3SPTVN1PROD with PROPOSALS2 BILLING CODE 3510–22–P VerDate Sep<11>2014 19:24 Apr 20, 2015 Jkt 235001 PO 00000 Frm 00054 Fmt 4701 Sfmt 9990 E:\FR\FM\21APP2.SGM 21APP2

Agencies

[Federal Register Volume 80, Number 76 (Tuesday, April 21, 2015)]
[Proposed Rules]
[Pages 22303-22356]
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Endangered and Threatened Species; Identification of 14 Distinct 
Population Segments of the Humpback Whale (Megaptera novaeangliae) and 
Proposed Revision of Species-Wide Listing; Proposed Rule

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130708594-5298-02 ]
RIN 0648-XC751


Endangered and Threatened Species; Identification of 14 Distinct 
Population Segments of the Humpback Whale (Megaptera novaeangliae) and 
Proposed Revision of Species-Wide Listing

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

ACTION: Proposed rule; 12-month findings.

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SUMMARY: We, NMFS, have completed a comprehensive status review of the 
humpback whale (Megaptera novaeangliae) under the Endangered Species 
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.) and announce a 
proposal to revise the listing status of the species. We propose to 
divide the globally listed endangered species into 14 distinct 
population segments (DPSs), remove the current species-level listing, 
and in its place list 2 DPSs as endangered and 2 DPSs as threatened. 
The remaining 10 DPSs are not proposed for listing based on their 
current statuses. This proposal also constitutes a negative 12-month 
finding on a petition to delineate and ``delist'' a DPS of humpback 
whales spanning the entire North Pacific and a positive 12-month 
finding on a petition to delineate and ``delist'' a DPS in the Central 
North Pacific (Hawaii breeding population).
    At this time, we do not propose to designate critical habitat for 
the two listed DPSs that occur in U.S. waters (Western North Pacific, 
Central America) because it is not currently determinable. In order to 
complete the critical habitat designation process, we also solicit 
information on essential physical and biological features of the 
habitat of these two DPSs.

DATES: Comments must be submitted to NMFS by July 20, 2015. For 
specific dates of the public hearings, see SUPPLEMENTARY INFORMATION. 
Requests for additional public hearings must be made in writing and 
received by June 5, 2015.

ADDRESSES: Four public hearings will be held, one each in Juneau, AK, 
Honolulu, HI, Plymouth, MA, and Virginia Beach, VA. For specific 
locations of these hearings, see SUPPLEMENTARY INFORMATION.
    You may submit comments, identified by NOAA-NMFS-2015-0035, by any 
of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal eRulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2015-0035,
    2. Click the ``Comment Now!'' icon, complete the required fields
    3. Enter or attach your comments.

--Or--

    Mail: Submit written comments to Marta Nammack, NMFS, 1315 East-
West Highway, Room 13536, Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    The proposed rule, Status Review report and other materials 
relating to this proposal can be found on the NMFS Web site at: http://nmfs.noaa.gov/pr/.

FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, (301) 427-8469.

SUPPLEMENTARY INFORMATION: On August 12, 2009, we announced the 
initiation of a status review of the humpback whale to determine 
whether an endangered listing for the entire species was still 
appropriate (74 FR 40568). We sought information from the public to 
inform our review, hired two post-doctoral students to compile the best 
available scientific and commercial information on the species (Fleming 
and Jackson, 2011), including the past, present, and foreseeable future 
threats to this species, and appointed a Biological Review Team (BRT) 
to analyze that information, make conclusions on extinction risk, and 
prepare a status review report (Bettridge et al., 2015).
    On April 16, 2013, we received a petition from the Hawaii 
Fishermen's Alliance for Conservation and Tradition, Inc., to classify 
the North Pacific humpback whale population as a DPS and ``delist'' the 
DPS under the Endangered Species Act (ESA). On February 26, 2014, the 
State of Alaska submitted a petition to delineate the Central North 
Pacific (Hawaii) stock of the humpback whale as a DPS and remove the 
DPS from the List of Endangered and Threatened Species under the ESA. 
After reviewing the petitions, the literature cited in the petitions, 
and other literature and information available in our files, we found 
that both petitioned actions may be warranted and issued positive 90-
day findings (78 FR 53391, August 29, 2013; 79 FR 36281, June 26, 
2014). We extended the deadline for receiving information by 30 days to 
help us respond to the petition to delist the Central North Pacific 
population (79 FR 40054; July 11, 2014). We incorporated the 
consideration of both petitioned actions into the status review.
    Based on information presented in the status review report, an 
assessment of the ESA section 4(a)(1) factors, and efforts being made 
to protect the species, we have determined: (1) 14 populations of the 
humpback whale meet the DPS policy criteria and are therefore 
considered to be DPSs; (2) the Cape Verde Islands/Northwest Africa and 
Arabian Sea DPSs are in danger of extinction throughout their ranges; 
(3) the Western North Pacific and Central America DPSs are likely to 
become endangered throughout all of their ranges in the foreseeable 
future; and (4) the West Indies, Hawaii, Mexico, Brazil, Gabon/
Southwest Africa, Southeast Africa/Madagascar, West Australia, East 
Australia, Oceania, and Southeastern Pacific DPSs are not in danger of 
extinction throughout all or a significant portion of their ranges or 
likely to become so in the foreseeable future. Accordingly, we issue a 
proposed rule to revise the species-wide listing of the humpback whale 
by replacing it with 2 endangered species listings (Cape Verde Islands/
Northwest Africa and Arabian Sea DPSs) and 2 threatened species 
listings (Western North Pacific and Central America DPSs). We solicit 
comments on these proposed actions. We also propose to extend the ESA 
section 9 prohibitions to the 2 threatened DPSs.

Outline

ESA Statutory Provisions, Regulations, and Policy Considerations
    Distinct Population Segment Policy
    ``Foreseeable Future''
    ``Significant Portion of its Range''
Background
    Behavior
    Feeding
    Reproduction
    Natural Mortality
Status Review Report
    Humpback Whale Subspecies

[[Page 22305]]

Reproductive Seasonality
Behavior
Color patterns
Genetics
    Subspecies Discussion and Conclusions
Distinct Population Segment Analysis, By Subspecies
    North Atlantic
Overview
Discreteness
Significance
    North Pacific
Overview
Discreteness
Significance
    Southern Hemisphere
Overview:
Discreteness
Significance
Extinction Risk Assessment
Abundance and Trends for Each DPS
    West Indies DPS
    Cape Verde Islands/Northwest Africa DPS
    Western North Pacific DPS
    Hawaii DPS
    Mexico DPS
    Central America DPS
    Brazil DPS
    Gabon/Southwest Africa DPS
    Southeast Africa/Madagascar DPS
    West Australia DPS
    East Australia DPS
    Oceania DPS
    Southeastern Pacific DPS
    Arabian Sea DPS
    Summary of Abundance and Trends
Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale 
DPSs
    Section 4(a)(1) Factors Applicable to All DPSs
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes:
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    West Indies DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Cape Verde Islands/Northwest Africa DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Western North Pacific DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Hawaii DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Mexico DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Central America DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Brazil DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Gabon/Southwest Africa DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Southeast Africa/Madagascar DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    West Australia DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    East Australia DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Oceania DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Southeastern Pacific DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
    Arabian Sea DPS
    A. The present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    C. Disease or Predation
    D. Inadequacy of Existing Regulatory Mechanisms
    E. Other Natural or Manmade Factors Affecting its Continued 
Existence
Ongoing Conservation Efforts
Rationale for Revising the Current Global Listing and Replacing It 
with Listings of DPSs
Conclusions on the Status of Each DPS under the ESA
    Endangered DPSs
    Threatened DPSs

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    DPSs Not Warranted for Listing under the ESA
Post-delisting Monitoring Plan
Description of Proposed Regulatory Changes
Prohibitions and Protective Measures
Identification of Those Activities That Would Constitute a Violation 
of Section 9 of the ESA
Effects of this Rulemaking
Peer Review
Critical Habitat
Public Comments Solicited
Public Hearings
Classification
    National Environmental Policy Act (NEPA)
    Executive Order (E.O.) 12866, Regulatory Flexibility Act, and 
Paperwork Reduction Act
    E.O. 13132, Federalism
    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments

ESA Statutory Provisions, Regulations, and Policy Considerations

    Pursuant to the ESA, any interested person may petition to list or 
delist a species, subspecies, or DPS of a vertebrate species that 
interbreeds when mature (5 U.S.C. 553(e), 16 U.S.C. 1533(b)(3)(A)). 
ESA-implementing regulations issued by NMFS and the U.S. Fish and 
Wildlife Service (FWS) also establish procedures for receiving and 
considering petitions to revise the lists of endangered and threatened 
species and for conducting periodic reviews of listed species (50 CFR 
424.01).
    Once we receive a petition to delist a species, the ESA requires 
the Secretary of Commerce (Secretary) to make a finding on whether the 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted (16 U.S.C. 
1533(b)(3)(A)). In the context of a petition to delist a species, the 
ESA-implementing regulations provide that ``substantial information'' 
is that amount of information that would lead a reasonable person to 
believe that delisting may be warranted (50 CFR 424.14(b)(1)). In 
determining whether substantial information exists, we take into 
account several factors, in light of any information noted in the 
petition or otherwise readily available in our files. To the maximum 
extent practicable, this finding is to be made within 90 days of the 
receipt of the petition (16 U.S.C. 1533(b)(3)(A)) and published 
promptly in the Federal Register. Section 4(b)(3)(B) of the ESA 
requires that, when a petition to revise the List of Endangered and 
Threatened Wildlife and Plants is found to present substantial 
scientific and commercial information, we make a finding that the 
petitioned action is (a) not warranted, (b) warranted, or (c) warranted 
but precluded from immediate proposal by other pending proposals of 
higher priority. This finding (the ``12-month finding'') is to be made 
within 1 year of the date the petition was received, and the finding is 
to be published promptly in the Federal Register. The Secretary has 
delegated the authority for these actions to the NOAA Assistant 
Administrator for Fisheries.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' Thus, we 
interpret an ``endangered species'' to be one that is presently in 
danger of extinction. A ``threatened species,'' on the other hand, is 
not presently in danger of extinction, but is likely to become so in 
the foreseeable future (that is, at a later time). In other words, the 
primary statutory difference between a threatened and endangered 
species is the timing of when a species may be in danger of extinction, 
either presently (endangered) or in the foreseeable future 
(threatened). In determining whether to reclassify or delist a species, 
subspecies, or DPS, the ESA and implementing regulations require that 
we consider the following ESA section 4(a)(1) factors in relation to 
the definitions of ``endangered species'' or ``threatened species'' (16 
U.S.C. 1533(a)(1) and 1533(c)(2); 50 CFR 424.11(d)): The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; overutilization of the species for commercial, recreational, 
scientific, or educational purposes; disease or predation; the 
inadequacy of existing regulatory mechanisms; and other natural or 
manmade factors affecting a species' continued existence. These are the 
same factors that we must consider when making an initial determination 
whether to list a species, subspecies, or DPS as threatened or 
endangered under the ESA.
    Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations 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 efforts being made by any State or foreign 
nation or political subdivision thereof to protect the species. In 
evaluating the efficacy of protective efforts not yet implemented or 
not yet proven to be effective, we rely on the Policy on Evaluation of 
Conservation Efforts When Making Listing Decisions (``PECE''; 68 FR 
15100; March 28, 2003) issued jointly by NMFS and the FWS (together, 
the Services). The ESA regulations require that a species listed as 
endangered or threatened be removed from the list if the best 
scientific or commercial data available indicate that the species is no 
longer endangered or threatened because it has recovered (50 CFR 
424.11(d)).

Distinct Population Segment Policy

    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species,'' which the ESA defines to include ``. . . 
any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature'' (16 U.S.C. 1532 (16)). Thus, an ESA listing 
(or delisting) determination can address a species, subspecies, or a 
DPS of a vertebrate species.
    On February 7, 1996, the Services adopted a policy describing what 
constitutes a DPS of a taxonomic species (61 FR 4722). The joint DPS 
policy identified two elements that must be considered when identifying 
a DPS: (1) The discreteness of the population segment in relation to 
the remainder of the species (or subspecies) to which it belongs; and 
(2) the significance of the population segment to the remainder of the 
species (or subspecies) 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.
    (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 considered discrete under one or more of 
the above conditions, its biological and ecological significance is 
then considered in light of Congressional guidance (see Senate Report 
151, 96th Congress, 1st Session) that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. This consideration may include, but is not limited to, the 
following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;

[[Page 22307]]

    (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; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.

``Foreseeable Future''

    To determine whether listing of a species is warranted, a status 
review must conclude that the species is ``in danger of extinction or 
likely to become so within the foreseeable future throughout all or a 
significant portion of its range.'' The ESA uses the term ``foreseeable 
future'' to refer to the time over which identified threats are likely 
to impact the biological status of the species. The duration of the 
``foreseeable future'' in any circumstance is inherently fact-specific 
and depends on the particular kinds of threats, the life-history 
characteristics, and the specific habitat requirements for the species 
under consideration. The existence of a threat to a species and the 
species' response to that threat are not, in general, equally 
predictable or foreseeable. Hence, in some cases, the ability to 
foresee a threat to a species is greater than the ability to foresee 
the species' exact response, or the timeframe of such a response, to 
that threat. For purposes of making these 12-month findings, the 
relevant consideration is whether the species' population response 
(i.e., abundance, productivity, spatial distribution, diversity) is 
foreseeable, not merely whether the emergence of a threat is 
foreseeable. The foreseeable future extends only as far as we are able 
to reliably predict the species' population response to a particular 
threat. We consider the extent to which we can foresee the species' 
response to each threat.

``Significant Portion of its Range''

    NMFS and FWS recently published a final policy to clarify the 
interpretation of the phrase ``significant portion of the range'' in 
the ESA definitions of ``threatened species'' and ``endangered 
species'' (79 FR 37577; July 1, 2014) (Final Policy). The Final Policy 
reads:

    Consequences of a species being endangered or threatened 
throughout a significant portion of its range: The phrase 
``significant portion of its range'' in the Act's definitions of 
``endangered species'' and ``threatened species'' provides an 
independent basis for listing. Thus, there are two situations (or 
factual bases) under which a species would qualify for listing: A 
species may be endangered or threatened throughout all of its range 
or a species may be endangered or threatened throughout only a 
significant portion of its range.
    If a species is found to be endangered or threatened throughout 
only a significant portion of its range, the entire species is 
listed as endangered or threatened, respectively, and the Act's 
protections apply to all individuals of the species wherever found.
    Significant: A portion of the range of a species is 
``significant'' if the species is not currently endangered or 
threatened throughout its range, but the portion's contribution to 
the viability of the species is so important that, without the 
members in that portion, the species would be in danger of 
extinction, or likely to become so in the foreseeable future, 
throughout all of its range.
    Range: The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
FWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' 
life cycle, even if they are not used regularly (e.g., seasonal 
habitats). Lost historical range is relevant to the analysis of the 
status of the species, but it cannot constitute a significant 
portion of a species' range.
    Reconciling SPR with DPS authority: If the species is endangered 
or threatened throughout a significant portion of its range, and the 
population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies.

    The Final Policy explains that it is necessary to fully evaluate a 
portion for potential listing under the ``significant portion of its 
range'' authority only if substantial information indicates that the 
members of the species in a particular area are likely both to meet the 
test for biological significance and to be currently endangered or 
threatened in that area. Making this preliminary determination triggers 
a need for further review, but does not prejudge whether the portion 
actually meets these standards such that the species should be listed:

    To identify only those portions that warrant further 
consideration, we will determine whether there is substantial 
information indicating that (1) the portions may be significant and 
(2) the species may be in danger of extinction in those portions or 
likely to become so within the foreseeable future. We emphasize that 
answering these questions in the affirmative is not a determination 
that the species is endangered or threatened throughout a 
significant portion of its range--rather, it is a step in 
determining whether a more detailed analysis of the issue is 
required.

79 FR 37586.

    Thus, the preliminary determination that a portion may be both 
significant and endangered or threatened merely requires NMFS to engage 
in a more detailed analysis to determine whether the standards are 
actually met. Id. at 37587. Unless both are met, listing is not 
warranted. The Final Policy explains that, depending on the particular 
facts of each situation, NMFS may find it is more efficient to address 
the significance issue first, but in other cases it will make more 
sense to examine the status of the species in the potentially 
significant portions first. Whichever question is asked first, an 
affirmative answer is required to proceed to the second question. Id. 
(``[I]f we determine that a portion of the range is not 
``significant,'' we will not need to determine whether the species is 
endangered or threatened there; if we determine that the species is not 
endangered or threatened in a portion of its range, we will not need to 
determine if that portion was ``significant.''). Thus, if the answer to 
the first question is negative--whether in regard to the significance 
question or the status question--then the analysis concludes and 
listing is not warranted.

Background

    The humpback whale (Megaptera novaeangliae) was listed as 
endangered in 1970 under the Endangered Species Conservation Act of 
1969, the precursor to the ESA. When the ESA was enacted in 1973, the 
humpback whale was transferred to the List of Endangered and Threatened 
Wildlife and Plants, retaining endangered status, and, because of its 
endangered ESA status, was considered ``depleted'' under the Marine 
Mammal Protection Act (MMPA). NMFS issued a recovery plan for the 
humpback whale in 1991, and its long-term numerical goal was to 
increase humpback whale populations to at least 60 percent of the 
number existing before commercial exploitation or of current 
environmental carrying capacity. The recovery team recognized that 
those levels could not then be determined, so in the meantime, the 
interim goal of the recovery plan was to double the population size of 
extant populations within the next 20 years (http://www.nmfs.noaa.gov/pr/pdfs/recovery/whale_humpback.pdf). In fact, the historical size of 
humpback whale populations continues to be uncertain (Ruegg et al., 
2013, and references therein; Bettridge et al., 2015).
    The taxonomy, life history, and ecology of the humpback whale are 
thoroughly reviewed in Fleming and Jackson (2011) and summarized in the 
BRT's status review report (Bettridge et al., 2015; available at http://www.nmfs.noaa.gov/pr/species/statusreviews.htm). The humpback whale is 
a large baleen whale of the

[[Page 22308]]

family Balaenopteridae. It is found around the world in all oceans. The 
humpback whale has long pectoral flippers, distinct ventral fluke 
patterning, dark dorsal coloration, a highly varied acoustic call 
(termed `song'), and a diverse repertoire of surface behaviors.
    Its body coloration is primarily dark grey, but individuals have a 
variable amount of white on their pectoral fins, flukes, and belly. 
This variation is so distinctive that the pigmentation pattern on the 
undersides of their flukes is used to identify individual whales. 
Coloring of the ventral surface varies from white to marbled to fully 
black. Dorsal surfaces of humpback whale pectoral flippers are 
typically white in the North Atlantic and black in the North Pacific 
(Perrin et al., 2002), and the flippers are about one-third of the 
total body length. Similar to all baleen whales, body lengths differ 
between the sexes, with adult females being approximately 1-1.5m longer 
than males. The humpback whale reaches a maximum of 16-17 m, although 
lengths of 14-15 m are more typical. Adult body weights in excess of 40 
tons make them one of the largest mammals on earth (Ohsumi, 1966).
    With one exception, humpback whales are highly migratory, spending 
spring, summer, and fall feeding in temperate or high-latitude areas of 
the North Atlantic, North Pacific, and Southern Ocean and migrating to 
the tropics in winter to breed and calve. The Arabian Sea humpback 
whale population does not migrate extensively, remaining in tropical 
waters year-round (Baldwin, 2000; Minton et al., 2010b).
    There are 14 known breeding grounds for humpback whales, and there 
may be other breeding grounds of unknown location. Whales using the 
unknown breeding grounds may be associated to some degree with whales 
from the known breeding grounds.
    Whales from all known breeding grounds except the Arabian Sea 
migrate to summer feeding areas. Humpback whales have high site 
fidelity to both the winter breeding grounds and summer feeding 
grounds. Whales from a single breeding ground may migrate to different 
feeding grounds. In addition, feeding grounds may host whales from 
different breeding grounds. Because humpback whales can be individually 
identified through unique fluke patterns, researchers are able to match 
photos of whales on breeding grounds and feeding grounds, thereby 
tracing their migrations.
    Although the patterns of migration and distribution are clear for 
many breeding groups, researchers have identified whales on some 
feeding grounds that have never been sighted in any of the known 
breeding grounds. Depending on the strength of the evidence, scientists 
may infer that an additional breeding population exists but that its 
breeding grounds are unknown. We explore this subject further in the 
``Distinct Population Segment Analysis, By Subspecies'' section below.

Behavior

    Humpback whales travel great distances during migration, the 
farthest migration of any mammal. The longest recorded migration 
between a breeding area and a feeding area was 5,160 miles (8,300 km). 
This trek from Costa Rica to Antarctica was completed by seven 
individuals, including a calf (Rasmussen et al., 2007). One of the more 
closely studied routes has shown whales making the 3,000-mile (4,830 
km) trip between Alaska and Hawaii in as little as 36 days (Allen and 
Angliss, 2010).
    During summer and fall, humpback whales spend much of their time 
feeding and building fat stores for winter. In their low-latitude 
wintering grounds, humpback whales congregate and are believed to 
engage in mating and other social activities. Humpback whales are 
generally polygynous, with males exhibiting competitive behavior on 
wintering grounds (Tyack, 1981; Baker and Herman, 1984; Clapham, 1996). 
A complex behavioral repertoire exhibited in these areas can include 
aggressive and antagonistic behavior, such as chasing, vocal and bubble 
displays, horizontal tail thrashing, and rear body thrashing. Males 
within these groups also make physical contact, striking or surfacing 
on top of one another.
    Also on wintering grounds, males sing complex songs that can last 
up to 20 minutes and may be heard up to 20 miles (30 km) away (Clapham 
and Mattila, 1990; Cato, 1991). A male may sing for hours, repeating 
the song numerous times. All males in a population sing the same song, 
but that song continually evolves over time (Darling and Sousa-Lima, 
2005). Humpback whale singing has been studied for decades, but its 
function remains in dispute.
    Humpback whales are a favorite of whale watchers, as the species 
frequently performs aerial displays, including breaching, lobtailing, 
and flipper slapping, the purposes of which are not well understood. 
Diving behavior varies by season, with average lengths of dives ranging 
from <5 minutes in summer to 10-15 minutes (and sometimes more than 30 
minutes) in winter months (Clapham and Mead, 1999). Typically, humpback 
whale groups are small (e.g., <10 individuals, but can vary depending 
on social context and season), and associations between individuals do 
not last long, with the exception of the mother/calf pairs (Clapham and 
Mead, 1999).

Feeding

    Humpback whales have a diverse diet that varies slightly across 
feeding areas. The species is known to feed on both small schooling 
fish and on euphausiids (krill). Known prey organisms include species 
representing Clupea (herring), Scomber (mackerel), Ammodytes (sand 
lance), Sardinops (sardine), Engraulis (anchovy), Mallotus (capelin), 
and krills such as Euphausia, Thysanoessa, and Meganyctiphanes (Baker, 
1985; Geraci et al., 1989; Clapham et al., 1997). Humpback whales also 
exhibit flexible feeding strategies, sometimes foraging alone and 
sometimes cooperatively (Clapham, 1993). During the winter, humpback 
whales subsist on stored fat and likely feed little or not at all.
    In the Northern Hemisphere, feeding behavior is varied and 
frequently features novel capture methods involving the creation of 
bubble structures to trap and corral fish; bubble nets, clouds, and 
curtains can be observed when humpback whales are feeding on schooling 
fish (Hain et al., 1982). Lobtailing and repeated underwater `looping' 
movements (referred to as kick feeding) have also been observed during 
surface feeding events, and it may be that certain feeding behaviors 
are spread through the population by cultural transmission (Weinrich et 
al., 1992; Friedlaender et al., 2006). On Stellwagen Bank, in the Gulf 
of Maine, repeated side rolls have been recorded when whales were near 
the bottom, which likely serves to startle prey out of the substrate 
for better foraging (Friedlaender et al., 2009). In many locations, 
feeding in the water column can vary with time of day, with whales 
bottom feeding at night and surface feeding near dawn (Friedlaender et 
al., 2009).
    Humpback whales are `gulp' or `lunge' feeders, capturing large 
mouthfuls of prey during feeding rather than continuously filtering 
food, as may be observed in some other large baleen whales 
(Ingebrigtsen, 1929). In the Southern Hemisphere, only one style of 
foraging (`lunge' feeding) has been reported. When lunge feeding, 
whales advance on prey with their mouths wide open, then close their 
mouths around the prey and trap them by forcing engulfed water out past 
the baleen

[[Page 22309]]

plates. Southern Hemisphere humpback whales forage in the Antarctic 
circumpolar current, feeding almost exclusively on Antarctic krill 
(Euphausia superba) (Matthews, 1937; Mackintosh, 1965; Kawamura, 1994).
    Stomach content analysis from hunted whales taken in sub-tropical 
waters and on migratory routes indicated that stomachs were nearly 
always empty (Chittleborough, 1965a). Infrequent sightings of feeding 
activity and stomach content data suggest that some individuals may 
feed opportunistically during the southward migration toward Antarctic 
waters (Matthews, 1932; Dawbin, 1956; Kawamura, 1980).
    In the Southern Ocean, Antarctic krill tend to be most highly 
concentrated around marginal sea ice zones, where they feed on sea ice 
algae. As a result, Southern Hemisphere humpback whale distribution is 
linked to regions of marginal sea ice (Friedlaender et al., 2006) and 
zones of high euphausiid density (Murase et al., 2002), with foraging 
mainly concentrated in the upper 100m of the water column (Dolphin, 
1987; Friedlaender et al., 2006). There is evidence of a positive 
relationship between prey density and humpback whale abundance 
(Friedlaender et al., 2006).

Reproduction

    The mating system of humpback whales is generally thought to be 
male-dominance polygyny, also described as a `floating lek' (Clapham, 
1996). In this system, multiple males compete for individual females 
and exhibit competitive behavior. Humpback whale song is a long, 
complex vocalization (Payne and McVay, 1971) produced by males on the 
winter breeding grounds, and also less commonly during migration 
(Clapham and Mattila, 1990; Cato, 1991) and on feeding grounds (Clark 
and Clapham, 2004b). The exact function has not been determined, but 
behavioral studies suggest that song is used to advertise for females, 
and/or to establish dominance among males (Tyack, 1981; Darling and 
B[eacute]rub[eacute], 2001; Darling et al., 2006). It is widely 
believed that, while occasional mating may occur on feeding grounds or 
on migration, the great majority of mating and conceptions take place 
in winter breeding areas (Clapham, 1996; Clark and Clapham, 2004a). 
Breeding in the Northern and Southern Hemisphere populations is out of 
phase by approximately 6 months, corresponding to their respective 
winter periods.
    Sexual maturity of humpback whales in the Northern Hemisphere 
occurs at approximately 5-11 years of age, and appears to vary both 
within and among populations (Clapham, 1992; Gabriele et al., 2007b; 
Robbins, 2007). Average age of sexual maturity in the Southern 
Hemisphere is estimated to be 9-11 years. In the Northern Hemisphere, 
calving intervals are between 1 and 5 years, though 2-3 years appears 
to be most common (Wiley and Clapham, 1993; Steiger and Calambokidis, 
2000). Estimated mean calving rates are between 0.38 and 0.50 calves 
per mature female per year (Clapham and Mayo, 1990; Straley et al., 
1994; Steiger and Calambokidis, 2000) and reproduction is annually 
variable (Robbins, 2007). In the Southern Hemisphere, most information 
on humpback whale population characteristics and life history was 
obtained during the whaling period. Post-partum ovulation is reasonably 
common (Chittleborough, 1965a) and inter-birth intervals of a single 
year have occasionally been recorded. This may be a consequence of 
early calf mortality; the associated survival rates for annually born 
calves are unknown in the Southern Hemisphere.
    Humpback whale gestation is 11-12 months and calves are born in 
tropical waters (Matthews, 1937). Lactation lasts from 10.5-11 months 
(Chittleborough, 1965a), weaning begins to occur at about age 6 months, 
and calves attain maternal independence around the end of their first 
year (Clapham and Mayo, 1990). Humpback whales exhibit maternally 
directed fidelity to specific feeding regions (Martin et al., 1984; 
Baker et al., 1990).
    The average generation time for humpback whales (the average age of 
all reproductively active females at carrying capacity) is estimated at 
21.5 years (Taylor et al., 2007). Empirically estimated annual rates of 
population increase range from a low of 0 to 4 percent to a maximum of 
12.5 percent for different times and areas throughout the range (Baker 
et al., 1992; Barlow and Clapham, 1997; Steiger and Calambokidis, 2000; 
Clapham et al., 2003a); however, Zerbini et al. (2010) concluded that 
any rate above 11.8 percent per year is biologically implausible for 
this species.

Natural Mortality

    Annual adult mortality rates have been estimated to be 0.040 
(standard error (SE) = 0.008) (Barlow and Clapham, 1997) in the Gulf of 
Maine and 0.037 (95 percent confidence interval (CI) 0.022-0.056) 
(Mizroch et al., 2004) in the Hawaiian Islands populations. In the 
Southern Hemisphere, estimates of annual adult survival rates have been 
made using photo-identification studies in Hervey Bay, east Australia 
(1987-2006), and range between 0.87 and 1.00 (Chaloupka et al., 1999).
    Robbins (2007) estimated calf (0-1 year old) survival for humpback 
whales in the Gulf of Maine at 0.664 (95 percent CI: 0.517-0.784), 
which is low compared to other areas. Barlow and Clapham (1997) 
estimated a theoretical calf mortality rate of 0.125 on the Gulf of 
Maine feeding ground. Using associations of calves with identified 
mothers on North Pacific breeding and feeding grounds, Gabriele (2001) 
estimated mortality of juveniles at 6 months of age to be 0.182 (95 
percent CI: 0.023-0.518). Survival of calves (6-12 months) and 
juveniles (1-5 years) has not been described in detail for the Southern 
Hemisphere. Killer whales are likely the most common natural predators 
of humpback whales.

Status Review Report

    The BRT's status review report compiled the best available 
scientific and commercial information on: (1) Population structure of 
humpback whales within the North Pacific, North Atlantic, and Southern 
Oceans, used to determine whether any populations within these ocean 
basins meet the DPS policy criteria; (2) the abundance and trend 
information for each DPS; (3) those ESA section 4(a)(1) factors 
currently affecting the status of these DPSs; (4) ongoing conservation 
efforts affecting the status of these DPSs; and (5) the extinction risk 
of each DPS. See the status review report for further information on 
the biology and ecology of the humpback whale (Bettridge et al., 2015).

Humpback Whale Subspecies

    The BRT reviewed the best scientific and commercial data available 
on the humpback whale's taxonomy and concluded that there are likely 
three unrecognized subspecies of humpback whale: North Pacific, North 
Atlantic, and Southern Hemisphere. In reaching this conclusion, the BRT 
considered available life history, morphological, and genetic 
information.
    Humpback whales routinely make extensive migrations between 
breeding and feeding areas within an ocean basin. Despite this 
potential for long distance dispersal, there is considerable evidence 
that dispersal or interbreeding of individuals from different major 
ocean basins is extremely rare and that whales from the major ocean 
basins are differentiated by a number of characteristics.
    Reproductive Seasonality: Humpback whales breed and calve in July-

[[Page 22310]]

November in the Southern Hemisphere and in January-May in the Northern 
Hemisphere (including the Arabian Sea). It is not known if reproductive 
seasonality in baleen whales is determined genetically or whether it 
results from a learned behavior (migration to a particular feeding 
destination) combined with a physiological response to day length.
    Behavior: The most obvious behavioral difference is that migrations 
to and from high latitudes are in opposite times of the calendar year 
for Southern Hemisphere and most Northern Hemisphere populations, 
following the difference in reproductive seasonality. A Northern 
Hemisphere exception to this migration pattern is found in the Arabian 
Sea where a non-migratory population is found. Although these 
behavioral differences could be learned, they could also be innate, 
genetically determined traits. Seasonality in singing and other mating 
behaviors also follows the differences in reproductive seasonality.
    Color patterns: Humpback whales in the Southern Hemisphere tend to 
have much more white pigmentation on their bodies which is especially 
noticeable laterally (Matthews, 1937; Chittleborough, 1965b). This has 
been noted in eastern and western Australia, the Coral Sea, and 
Oceania, but might not be characteristic of all Southern Hemisphere 
populations. Rosenbaum et al. (1995) ranked ventral fluke coloration 
patterns from one (nearly all white) to five (nearly all black) and 
compared whales from several breeding areas. He found that over 80 
percent of humpback whales in eastern and western Australia were in 
Category 1, and that less than 10 percent of whales in three breeding 
areas in the North Pacific were ranked in that category. Only 36 
percent of Southern Hemisphere whales in Colombia were classified in 
Category 1, but Colombian whales were still, on average, whiter than 
North Pacific whales. A higher frequency of flippers with white dorsal 
pigmentations is found in the North Atlantic compared to the North 
Pacific (Clapham, 2009).
    Genetics: Baker and Medrano-Gonzalez (2002) reviewed the worldwide 
distribution of mtDNA haplotypes.\1\ They found three major clades 
(groups consisting of an ancestor and all its descendants) with 
significant differences among major ocean basins, though there were no 
completely fixed differences among these areas. The North Pacific 
included only the AE and CD clades, the North Atlantic included only 
the CD and IJ clades, and the Southern Oceans included all three. In a 
more recent comparison, Jackson et al. (2014) found no shared 
haplotypes between the North Pacific and North Atlantic. Based on 
patterns of mtDNA variation, Rosenbaum et al. (2009b) estimated an 
average migration rate of less than one per generation between the 
Arabian Sea and neighboring populations in the southern Indian Ocean, 
and Jackson et al. (2014) also estimated generally <1 migrant per 
generation among the North Pacific, North Atlantic and Southern 
Hemisphere populations. Ruegg et al. (2013) also found a high degree of 
genetic differentiation between samples from the North Atlantic and the 
Southern Hemisphere.
---------------------------------------------------------------------------

    \1\ A mtDNA haplotype is a group of genes, or alleles, that is 
maternally inherited; genetic differentiation is generally based on 
allele frequency differences between populations, which are measured 
by FST or related statistics; FST is a measure 
of the genetic distance between populations, or difference in the 
allele frequency between two populations.
---------------------------------------------------------------------------

Subspecies Discussion and Conclusions

    The BRT considered the possibility that humpback whales from 
different ocean basins might reasonably be considered to belong to 
different subspecies. Sub-specific taxonomy is relevant to the 
identification of DPSs because, under the 1996 DPS policy, the 
discreteness and significance of a potential DPS is evaluated with 
reference to the taxon (species or subspecies) to which it belongs. In 
some cases previous BRTs have determined that sub-specific taxonomy has 
a large influence on DPS structure (e.g., southern resident killer 
whales--Krahn et al., 2004a)), while in other cases sub-specific 
taxonomy has not been relevant (e.g., steelhead trout DPS--Busby et 
al., 1996).
    Rice (1998) reviewed previous subspecies designations for humpback 
whales. Tomilin (1946) named a Southern Hemisphere subspecies (M. n. 
lalandii) based on body length, but this length difference was not 
substantiated in subsequent studies. The populations around Australia 
and New Zealand were described as another subspecies (M. n. 
novazelandiae) based on color patterns and length (Ivashin, 1958). Rice 
(1998) noted that the statistical ability to classify these proposed 
subspecies is ``not quite as high as is customarily required for 
division into subspecies'' and that genetic analyses using restriction-
fragment length polymorphisms is not congruent with the proposed 
regional division. Rice (1998) therefore recommended that Megaptera 
novaeangliae be considered monotypic. As was summarized above, however, 
since 1998, additional information has accumulated on the genetic 
distinctiveness of different geographic populations of humpback whales, 
and some new subspecies have been proposed (Jackson et al., 2014).
    One criterion for separation of subspecies is the ability to 
differentiate 75 percent of individuals found in different geographic 
regions (Reeves et al., 2004). Based on this criterion, differences in 
the calendar timing of mating and reproduction could be used to 
distinguish close to 100 percent of Northern Hemisphere from Southern 
Hemisphere individuals, but it is not known if this is genetically 
determined. Based on mtDNA haplotypes that have been identified to 
date, haplotype could be used to distinguish 100 percent of North 
Pacific from North Atlantic individuals, but some haplotypes from both 
ocean basins are shared with the Southern Ocean. Ventral fluke color 
patterns can be used to correctly differentiate >80 percent of whales 
in eastern and western Australia from the whales in the North Pacific 
(Rosenbaum et al., 1995).
    The BRT also considered the advice of the Committee on Taxonomy of 
the Society for Marine Mammalogy (SMM). The BRT asked the Committee: 
``Are humpback whales (Megaptera novaeangliae) that feed in the North 
Atlantic, North Pacific, Southern Oceans and Arabian Sea likely to 
belong to different sub-species?'' The SMM was asked only for its 
scientific opinion on the likelihood of the existence of humpback whale 
subspecies and was not asked to comment on the relevance of their 
opinion to the identification of DPSs for humpback whales. The SMM 
chairman summarized responses from members of the SMM:

    The balance of opinion in the SMM Committee on Taxonomy is that 
given the evidence on genetics, morphology, distribution and 
behavior, if a taxonomic revision of the humpback whale were 
undertaken, it is likely that the North Atlantic, North Pacific and 
Southern Hemisphere populations would be accorded subspecific 
status. Whether the Arabian Sea population would merit recognition 
as a subspecies separate from the Southern Hemisphere whales, with 
which it is most closely related genetically, is less certain. 
However, it is clearly geographically isolated and genetically 
differentiated.

    Using its structured decision making process (whereby each BRT 
member distributed 100 likelihood points among different scenarios), 
the BRT considered the likelihood of a single global species with no 
subspecies scenario, a three-subspecies scenario (North Atlantic, North 
Pacific, and Southern

[[Page 22311]]

Hemisphere), and a four-subspecies scenario (North Atlantic, North 
Pacific, Southern Hemisphere, and Arabian Sea). The BRT's allocation of 
likelihood points indicates that in the opinion of the BRT, the most 
likely scenario is the 3-subspecies scenario.
    In October 2014, after the BRT report was completed, the SMM 
updated its species and subspecies list to recognize the North 
Atlantic, North Pacific, and Southern Hemisphere humpback whale 
populations as subspecies: Megaptera novaeangliae kuzira (North 
Pacific), M. n. novaeangliae (North Atlantic) and M. n. australis 
(Southern Hemisphere) (http://www.marinemammalscience.org/index.php?option=com_content&view=article&id=758&Itemid=340). This 
update was based on mtDNA and DNA relationships and distribution, as 
described in Jackson et al. (2014). We therefore consider whether the 
various humpback whale population segments identified by the BRT 
satisfy the DPS criteria of discreteness and significance relative to 
the subspecies to which they each belong: North Atlantic, North 
Pacific, and Southern Hemisphere subspecies.

Distinct Population Segment Analysis, By Subspecies

North Atlantic

Overview
    In the Northern Hemisphere, humpback whales summer in the 
biologically productive, northern latitudes and travel south to warmer 
waters in winter to mate and calve. Migratory routes and migratory 
behavior are likely to be maternally directed (Martin et al., 1984; 
Baker et al., 1990). Feeding areas are often near or over the 
continental shelf and are associated with cooler temperatures and 
oceanographic or topographic features that serve to aggregate prey 
(Moore et al., 2002; Zerbini et al., 2006a).
    Primary humpback whale feeding areas in the North Atlantic Ocean 
range from 42[deg] to 78[deg]N and include waters around Iceland, 
Norway, and the Barents Sea in the central and eastern North Atlantic 
Ocean, and western Greenland, Newfoundland, Labrador, the Gulf of St. 
Lawrence and the Gulf of Maine in the western North Atlantic Ocean. 
Known breeding areas occur in the West Indies and, to a much lesser 
extent, around the Cape Verde Islands (Katona and Beard, 1990; Clapham, 
1993; Palsb[oslash]ll et al., 1997). A relatively small proportion of 
whales in the North Atlantic Ocean feed in U.S. waters. The predominant 
breeding and calving area lies in the territorial sea of the Dominican 
Republic, although whales are also found scattered throughout the rest 
of the Antilles and coastal waters of Venezuela. The Silver/Navidad/
Mouchoir Bank complex hosts the largest single breeding aggregation of 
humpback whales in the West Indies.
    Recently, a few humpback whales have also been found in the 
Mediterranean Sea but little is known about humpback whale use of this 
region and there is no evidence of a large humpback whale presence 
there, either currently or in historical times (Frantzis et al., 2004). 
There are also sporadic sightings of humpback whales in a wide range of 
places, including waters offshore from the mid-Atlantic and Southeast 
United States, in the Gulf of Mexico, and in the waters around Ireland. 
Bermuda is a known mid-ocean stopover point for humpback whales on 
their northbound migration (Stone et al., 1987).
Discreteness
    Genetic studies have identified 25 humpback whale haplotypes in the 
western North Atlantic, 12 haplotypes in eastern North Atlantic 
samples, and 19 haplotypes in whales that feed during the summer in the 
Gulf of Maine (Palsb[oslash]ll et al., 1995; Larsen, 1996a; Rosenbaum 
et al., 2002). Humpback whales in the North Atlantic Ocean appear to 
have higher haplotype diversity than humpback whales in the North 
Pacific Ocean (Baker and Medrano-Gonz[aacute]lez, 2002). Haplotype 
diversity is lowest in populations around Norway and Iceland and higher 
around the northwestern feeding areas off Greenland, Gulf of St. 
Lawrence and Gulf of Maine (Baker and Medrano-Gonz[aacute]lez, 2002). 
Observed nucleotide diversity is also higher in the North Atlantic than 
in the North Pacific (Baker and Medrano-Gonz[aacute]lez, 2002).
    Whales that breed in the West Indies and Cape Verde Islands co-
mingle in North Atlantic feeding areas. Palsboll et al. (1995) and 
Valsecchi et al. (1997) found significant (FST= ~0.04) 
levels of mtDNA and nuclear genetic variation among North Atlantic 
feeding areas, suggesting there are genetically distinct breeding areas 
(there are no published genetic studies directly comparing whales in 
the West Indies breeding areas with whales in the Cape Verde Islands 
breeding areas). Photo-ID and genetic matching data suggest no evidence 
for substructure within the West Indies breeding population (reviewed 
by Fleming and Jackson (2011)), so this differentiation likely is due 
to genetic divergence between the West Indies and another North 
Atlantic breeding population, likely associated with the Cape Verde 
Islands or possibly other areas in the Northeastern Atlantic.
    Most of the humpback whales on the western North Atlantic feeding 
grounds (Gulf of Maine, Gulf of St. Lawrence, West Greenland, and 
eastern Canada) come from the well-studied West Indies breeding ground 
(approximately 90 percent) (Clapham et al., 1993; Mattila et al., 
2001). Some of the whales from the Iceland and Norway feeding grounds 
also come from the West Indies breeding grounds, but genetic evidence 
suggests that most whales from the Iceland and Norway feeding grounds 
migrate from some other breeding ground. The location of possible 
breeding grounds of these whales is not well understood, but Clapham et 
al. (1993) suggest it may be in the eastern tropical Atlantic Ocean. 
Sighting histories of the Cape Verde Islands whales link them to 
feeding grounds in the waters off Iceland or Norway (Katona and Beard, 
1990; Jann et al., 2003), and the Cape Verde Islands is the only 
candidate breeding ground from historical whaling records. However, 
current studies show only a small number of whales in the Cape Verde 
Islands--far fewer than the non-West Indies whales known to exist in 
the northeastern Atlantic. The Cape Verde Islands may therefore be part 
of a larger breeding area, or there may be a third separate breeding 
area that is as yet undiscovered (Charif et al., 2001; Reeves et al., 
2002). The possibility of a third breeding area unassociated with the 
Cape Verde Islands is supported by nuclear DNA, as there is a 
significant degree of heterogeneity in nuclear DNA among populations in 
the western, central (Iceland) and eastern (Norway) North Atlantic 
feeding grounds (Larsen, 1996b).
    The BRT concluded there are two populations of humpback whales in 
the North Atlantic Ocean meeting the discreteness criteria under the 
DPS policy--one with breeding grounds in the West Indies and another 
with breeding grounds near Cape Verde Islands and a possible associated 
breeding area, likely off Northwest Africa. In particular, whales from 
the West Indies and the Cape Verde Islands breeding grounds are 
discrete based on: (1) No photographic matches between individuals 
using the West Indies and Cape Verde Islands areas (acknowledging that 
there is a large sample size for the West Indies breeding grounds and a 
small sample size for the Cape Verde Islands breeding grounds); (2) 
occupation of both breeding grounds at the same time; (3) evidence from 
19th century whaling data of a historically larger population at the 
Cape Verde Islands than exists today; and (4) genetic

[[Page 22312]]

heterogeneity in the feeding grounds indicating that the West Indies is 
not the only breeding ground. Because the Cape Verde Islands cannot 
account for the abundance of whales estimated from the eastern North 
Atlantic feeding grounds that are not documented using the West Indies, 
there must be an additional breeding area, likely near Northwest 
Africa, and possibly associated with the Cape Verde Islands.
Significance
    The West Indies breeding ground includes the Atlantic margin of the 
Antilles from Cuba to northern Venezuela, with the Silver/Navidad/
Mouchoir Bank complex comprising a major breeding ground. Whales from 
this breeding ground have a feeding range that primarily includes the 
Gulf of Maine, eastern Canada, and western Greenland. While many West 
Indies whales also use feeding grounds in the central North Atlantic 
(Iceland) and eastern North Atlantic (Norway), many whales from these 
feeding areas appear to winter in another location.
    The BRT concluded this discrete group of whales is significant to 
the North Atlantic subspecies due to the significant gap in the 
breeding range that would occur if it were extirpated. Loss of the West 
Indies population would result in the loss of humpback whales from all 
of the western North Atlantic breeding grounds (Caribbean/West Indies) 
and feeding grounds (United States, Canada, Greenland).
    The Cape Verde Islands/Northwest Africa breeding grounds include 
waters surrounding the Cape Verde Islands as well as an undetermined 
breeding area in the eastern tropical Atlantic, which may be more 
geographically diffuse than the West Indies breeding ground. The 
population of whales breeding in Cape Verde Islands plus this unknown 
area likely represents the remnants of a historically larger population 
breeding around Cape Verde Islands and Northwest Africa (Reeves et al., 
2002). There is no known overlap in breeding range with North Atlantic 
humpback whales that breed in the West Indies. As noted above, the BRT 
determined the population was discrete from the West Indies population 
based upon genetic evidence that suggests a second breeding ground 
occupied by whales that feed primarily off Norway and Iceland. It also 
determined that this population was significant to the North Atlantic 
subspecies because of the gap that would exist in the breeding range if 
it were extirpated.
    We agree with the BRT and we therefore identify two DPSs of the 
North Atlantic humpback whale subspecies: (1) West Indies DPS; and (2) 
Cape Verde Islands/Northwest Africa DPS.

North Pacific

Overview
    Humpback whales in the North Pacific migrate seasonally from 
northern latitude feeding areas in summer to low-latitude breeding 
areas in winter. Feeding areas are dispersed across the Pacific Rim 
from California, United States, to Hokkaido, Japan. Within these 
regions, humpback whales have been observed to spend the majority of 
their time feeding in coastal waters. Breeding areas in the North 
Pacific are more geographically separated than the feeding areas and 
include: (1) Regions offshore of mainland Central America; (2) 
mainland, Baja Peninsula and the Revillagigedos Islands, Mexico; (3) 
Hawaii; and (4) Asia including Ogasawara and Okinawa Islands and the 
Philippines. About half of the humpback whales in the North Pacific 
Ocean breed and calve in the U.S. waters off Hawaii; more than half of 
North Pacific Ocean humpback whales feed in U.S. waters.
    Humpback whales in the North Pacific rarely move between these 
breeding regions. Strong fidelity to both feeding and breeding sites 
has been observed, but movements between feeding and breeding areas are 
complex and varied (Calambokidis et al., 2008). An overall pattern of 
migration has recently emerged. Asia and Mexico/Central America are the 
dominant breeding areas for humpback whales that migrate to feeding 
areas in lower latitudes and more coastal areas on each side of the 
Pacific Ocean, such as California and Russia. The Revillagigedo 
Archipelago and Hawaiian Islands are the primary winter migratory 
destinations for humpback whales that feed in the more central and 
higher latitude areas (Calambokidis et al., 2008). However, there are 
exceptions to this pattern, and it seems that complex population 
structure and strong site fidelity coexist with lesser known, but 
potentially high, levels of plasticity in the movements of humpback 
whales (Salden et al., 1999).
Discreteness
    Baker et al. (2013) recently analyzed genetic variation in a large 
(n = 2,193) sample of whales from 8 breeding and 10 feeding regions 
within the North Pacific. The 8 possible breeding regions included the 
Philippines, Okinawa, Ogasawara, Hawaii, Revillagigedo, Baja 
California, the Mexican mainland coast, and Central America. In 
addition, results from Calambokidis et al. (2008) indicate the 
existence of at least one additional breeding area whose location has 
not been identified. Overall, the level of genetic divergence among 
breeding areas at the mtDNA control region was substantial 
(FST = 0.093). Pairwise estimates of divergence among 
breeding areas ranged from none (FST = ~0.000; Philippines 
vs Okinawa) to very high (FST > 0.2 for Hawaii versus 
Okinawa and Philippines, and Hawaii versus Central America). In 
addition to little divergence between Okinawa and the Philippines, the 
three Mexican areas (mainland coast, Baja California, and 
Revillagigedos Islands) were not significantly differentiated. In 
contrast to the mtDNA variation, the breeding areas were less strongly 
(but still significantly) differentiated at 10 nuclear microsatellite 
loci (FST = 0.006), suggesting the possibility of some male 
mediated gene flow among breeding areas. After application of an 
adjustment for diversity (Hedrick, 2005; Baker et al., 2013), the 
effect size increased to F'ST = 0.0128 and F'ST = 
0.0214 for feeding and breeding grounds, respectively. Of these nine 
areas, two are likely migratory routes to other locations and might 
therefore not be primary breeding grounds: the waters off Baja 
California and the Ogasawara Islands.
    Similarly, some humpback whales migrating to the Okinawa Islands 
pass by the Ogasawara Islands, and the Ogasawara Islands are also 
thought likely to be along the migration route to the unidentified 
breeding area that was described in Calambokidis et al. (2008). Because 
of the existence of an unidentified breeding area, the population 
structure of the western North Pacific populations proved more 
challenging. Humpback whales in Okinawa were not significantly 
different in either mtDNA or nDNA from whales in the Philippines (Baker 
et al., 2013). Mitochondrial DNA and nDNA markers from the pooled 
populations from Okinawa and the Philippines populations differ 
significantly from those of humpback whales in the Ogasawara Islands 
and all other populations (Baker et al., 2013). However, given the 
likelihood that Ogasawara whales are only passing through en route to 
two or more migratory destinations, the BRT members concluded that 
there are likely two discrete populations consisting of an Okinawa/
Philippines population and an unknown breeding group, both using the 
Ogasawara area as a migratory corridor. Given the uncertainty about the 
location of the other breeding ground, and the use of a common 
migratory corridor by the known group

[[Page 22313]]

and the unknown group, we have decided to include the unknown breeding 
group in the Okinawa/Philippines population. We refer to this combined 
discrete population as the Western North Pacific population.
    The Hawaii population of humpback whales is separated by the 
greatest geographic distance from neighboring populations and was 
significantly different from other populations in both frequencies of 
mtDNA haplotypes and nDNA (microsatellite) alleles (Baker et al., 
2013). The BRT therefore concluded that whales wintering in Hawaii 
constitute a discrete population.
    In Mexico, available genetic and demographic studies indicate that 
humpback whales migrating to mainland Mexico and to the Revillagigedos 
Islands pass by the tip of Baja California. The BRT therefore concluded 
that humpback whales off Baja California should not be considered a 
discrete population. Further, the mainland population in Mexico does 
not differ significantly from the Revillagigedos population in its 
mtDNA haplotype frequencies (Baker et al., 2013). Photo-identification 
studies also indicate considerable movement of individuals between 
mainland and offshore island breeding areas in Mexico (Calambokidis et 
al., 2008). The BRT therefore concluded that mainland Mexico and the 
Revillagigedos populations are a single Mexico population discrete from 
all other populations.
    In the eastern North Pacific, humpback whales in Central America 
have a unique mtDNA signature, as reflected in the frequencies of 
haplotypes (Baker et al., 2008a; Baker et al., 2008b). This frequency 
composition is significantly different from that in whales from all 
other breeding grounds in the North Pacific. The BRT concluded that 
humpback whales in Central America are a discrete population.
    Thus while the BRT concluded there are five breeding populations of 
humpback whales in the North Pacific that meet the criteria for being 
discrete under the DPS Policy guidelines, we propose to identify four: 
(1) Western North Pacific (includes Okinawa/Philippines and the 
unidentified breeding area in the western North Pacific); (2) Hawaii 
(3) Mexico (includes mainland Mexico and the Revillagigedos Islands); 
and (4) Central America.
Significance
    In evaluating whether any discrete population differed in its 
ecological characteristics from others, the BRT weighted ecological 
differences among feeding areas more heavily than among breeding areas, 
since it concluded that the ecological characteristics of humpback 
whales in their breeding ranges were largely similar among populations. 
In contrast, the BRT concluded whales largely foraging in different 
large marine ecosystems inhabit different ecological settings and that 
this is relevant in evaluating the significance of these populations. 
The BRT stated that, within the North Pacific, the Okinawa/Philippines, 
Hawaii, Mexico, and Central America populations tend to feed in 
different marine ecosystems, although there is some overlap. The 
Western North Pacific population, which feeds in the Western Bering Sea 
(the Okinawa/Philippines population) and the Aleutian Islands (the 
unidentified breeding population), feeds in an ecosystem entirely 
different from the others in the North Pacific. The BRT also noted that 
the Central America population's breeding habitat is ecologically 
unique for the species as it is the only area where documented 
geographic overlap of populations that feed in different hemispheres 
occurs, potentially creating a conduit for genetic exchange between the 
two hemispheres. While a minority of members believed that this was an 
example of temporal and geographic overlap rather than a unique 
ecological setting, we conclude that the Central America population is 
significant to the ocean-basin based North Pacific subspecies because 
of its ecologically unique breeding habitat. We agree with the BRT that 
the Western North Pacific and Central America populations occupy unique 
ecological settings (unique breeding and feeding grounds for the 
Western North Pacific, unique breeding habitat for the Central America 
population), and therefore, they both are significant to the North 
Pacific subspecies.
    The BRT noted that in the North Pacific Ocean, loss of the Okinawa/
Philippines population would likely result in a significant gap in the 
North Pacific feeding range as these individuals are the only breeding 
population to migrate primarily to Russia, and loss of this population 
would therefore result in a loss of feeding range along the Russian 
coast. We concur with this conclusion, but because we have combined the 
unknown breeding group that feeds in the Aleutian Islands with the 
Okinawa/Philippines population, we need to assess whether this combined 
Western North Pacific population is significant to the ocean-basin 
based North Pacific subspecies. We conclude that the loss of the 
Western North Pacific population would result in a significant gap in 
the range of the North Pacific subspecies because if loss of the 
Okinawa/Philippines population would result in a significant gap, then 
the loss of a larger combined population would, too. The loss of 
humpback whales from the Hawaii breeding population would result in 
loss of humpbacks from the Hawaiian Islands, and this would represent a 
significant gap in the range of the North Pacific subspecies. We 
conclude that the Western North Pacific and the Hawaii populations both 
meet the significance criterion of the DPS Policy because loss of these 
populations would result in a significant gap in the range of the North 
Pacific subspecies. While the loss of the Mexico or Central America 
populations would not result in a significant gap in the range of their 
feeding grounds because their feeding grounds overlap, it would result 
in a significant gap in their breeding grounds, and therefore, we 
consider the Mexico and Central America populations also to be 
significant to the North Pacific subspecies.
    The BRT discussed whether there was evidence for marked genetic 
divergence among any of the discrete populations. Although there was 
not clear agreement on the definition of ``marked,'' the BRT concluded 
that strong patterns of genetic differentiation in mtDNA sequence among 
most of the North Pacific breeding populations indicated marked genetic 
divergence, consistent with the conclusions in Baker et al. (2013). The 
overall level of differentiation among breeding populations within the 
North Pacific (FST = 0.09) was similar to the level of 
divergence among ocean basins and is consistent with a relatively high 
degree of divergence of these populations. Further, in reviewing Baker 
et al. (2013), all populations that we have identified as discrete in 
the North Pacific are strongly differentiated from each other at the p-
value \2\ of 0.01 level or better, except for the Central America/
Philippines pair, which are differentiated from each other at p-value 
of 0.05. Therefore, we agree with the BRT and conclude that all four of 
the discrete populations we have identified in the North Pacific 
(Western North Pacific, Hawaii, Mexico, and Central

[[Page 22314]]

America) are significant to the North Pacific subspecies because of 
marked genetic differentiation.
---------------------------------------------------------------------------

    \2\ The p-value is the probability of obtaining a test statistic 
result at least as extreme as the one that was actually observed, 
assuming that the null hypothesis is true; a small p-value 
(typically <= 0.05) indicates strong evidence against the null 
hypothesis; a null hypothesis is a general statement or default 
position that there is no relationship between two measured 
phenomena.
---------------------------------------------------------------------------

    Although the petitioned North Pacific population could also satisfy 
the discreteness and significance criteria of the DPS Policy, there are 
other plausible and scientifically supported approaches to dividing the 
species into DPSs. We conclude that our modification of the BRT's 
approach for humpback whales in the North Pacific (i.e., combining the 
unknown breeding group with the Okinawa/Philippines population) is more 
appropriate to further the purposes of the ESA because it represents a 
more risk-averse approach with respect to the unknown breeding group. 
As discussed above, identification of the Western North Pacific, 
Hawaii, Mexico, and Central America populations as DPSs is supported by 
the best available scientific and commercial information. We are 
exercising the discretion afforded to us as an expert agency charged 
with administering the ESA in the face of conflicting proposals (i.e., 
petitions to delist North Pacific and Central North Pacific 
populations) to recognize these four populations as DPSs. Therefore, we 
will evaluate the status of each of these four DPSs in the North 
Pacific rather than recognizing a single North Pacific DPS and 
evaluating its combined status (i.e., the approach offered by the 
Hawaii Fishermen's Alliance). The petition to delineate the North 
Pacific population as a DPS and ``delist'' it is therefore denied 
(i.e., the petitioned action is not warranted). The petitioned Central 
North Pacific population is the same as the Hawaii DPS we have 
identified; therefore, we will evaluate the status of the Hawaii DPS to 
determine whether it is warranted for listing.
    The following populations of the North Pacific humpback whale 
subspecies meet the discreteness and significance criteria for being a 
DPS under the DPS Policy: (1) Western North Pacific; (2) Hawaii; (3) 
Mexico; and (4) Central America.

Southern Hemisphere

Overview
    There are at least eleven breeding grounds identified in the 
Southern Hemisphere at temperate latitudes: Brazil, Gabon and central 
West Africa, Mozambique, the Comoros Archipelago, Madagascar, West 
Australia, East Australia, New Caledonia, Tonga, French Polynesia, and 
the southeastern Pacific, (Stevick et al., 2006; Zerbini et al., 2006b; 
Engel and Martin, 2009; IWC, 2011). The Arabian Sea breeding ground is 
also at a temperate latitude and, while it is in the Northern 
Hemisphere, we discuss it here because we determined earlier that it 
was part of the Southern Hemisphere subspecies of the humpback whale.
    The primary mating/calving ground of humpback whales in the western 
South Atlantic Ocean is the coast of Brazil. This population migrates 
to feeding grounds located east of the Scotia Sea near South Georgia 
and the South Sandwich Archipelagos (Stevick et al., 2006; Zerbini et 
al., 2006b; Engel et al., 2008; Engel and Martin, 2009; Zerbini et al., 
2011). The winter breeding distribution of humpback whales in the 
southwestern Atlantic (June to December) is concentrated around the 
Abrolhos Bank region in Brazil (15-18[deg] S.) and 500 km north, along 
the north coast of Bahia State and Espirito Santo State (Rossi-Santos 
et al., 2008) and near Salvador and Recife.
    A humpback whale winter breeding and calving ground is located off 
central western Africa between ~6[deg] S. and ~6[deg] N. in the eastern 
Atlantic. Periods of peak abundance are found between July and 
September, with some whales still present as late as December and 
January in Angola, Gabon and S[atilde]o Tom[eacute] (Weir, 2007). The 
Gabon/Southwest Africa region appears to serve a variety of purposes 
with some individual whales remaining in the area through the year 
while some use the area for feeding and others for mating (Bettridge et 
al., 2015).
    At least three winter breeding aggregations of humpback whales have 
been suggested in the southwestern Indian Ocean from historical whaling 
records and contemporary surveys (Wray and Martin, 1983; Best et al., 
1998). One is associated with the mainland coastal waters of 
southeastern Africa, extending from Mozambique (24[deg] S., Findlay et 
al., 1994) to as far north as Tanzania and southern Kenya (Wamukoya et 
al., 1996; Berggren et al., 2001; O'Connor et al., 2009). The second is 
found in the coastal waters of the northern Mozambique Channel Islands 
(Comoros Archipelago) and the southern Seychelles (Bettridge et al., 
2015). The third is associated with the coastal waters of Madagascar 
(15-25[deg] S.), best described in Antongil Bay on the east coast 
(Rosenbaum et al., 1997).
    At least three migratory pathways to Antarctic summer feeding 
grounds in this region have been proposed using a compilation of data 
from surveys, whaling and acoustic records and sightings (Best et al., 
1998). Humpback whale wintering grounds and coastal migratory routes in 
the eastern Indian Ocean are located between 15-35[deg] S. along the 
west coast of Australia, with major calving grounds occurring in the 
Kimberley Region (15-18[deg] S.) and resting areas on the southern 
migration at Exmouth Gulf (21[deg] S.) and at Shark Bay (25[deg] S.) 
(Bannister and Hedley, 2001; Jenner et al., 2001).
    Humpback whales along the east coast of Australia are thought to 
breed primarily in waters inside the Great Barrier Reef (16-21[deg] S.) 
(Chittleborough, 1965; Simmons and Marsh, 1986) and are seen as far 
north as Murray Island at ~10[deg] S. (Simmons and Marsh, 1986). 
Discovery marks and satellite telemetry suggest east Australian whales 
feed in a broad swath of the Antarctic between 100[deg] E. and 175[deg] 
W., or that they frequent at least two feeding regions, one due south 
of eastern Australia stretching to the east beneath New Zealand, and 
one south of west Australia at ~100[deg] E. and accessed via migration 
through Bass Strait.
    The longitudinal distribution boundaries of humpback whales 
wintering in Oceania lie between ~160[deg] E. (west of New Caledonia) 
and ~120[deg] W. (east of French Polynesia) and latitudinally between 
0[deg] and 30[deg] S. (Reeves et al., 1999), a range that includes 
American Samoa (United States), the Cook Islands, Fiji, French 
Polynesia (France), Republic of Kiribati, Nauru, New Caledonia 
(France), Norfolk Island, New Zealand, Niue, the Independent State of 
Samoa, Solomon Islands, Tokelau, Kingdom of Tonga, Tuvalu, Vanuatu, 
Wallis and Futuna (France).
    The wintertime breeding distribution of humpback whales in the 
southeastern Pacific (May to November) includes the coastal waters 
between Panama and northern Peru, with the main wintering areas 
concentrated in Colombia (Gorgona Island, M[aacute]laga Bay and 
Tribug[aacute] Gulf), Panama, and Ecuador. Low densities of whales are 
also found around the Gal[aacute]pagos Islands (F[eacute]lix et al., 
2006b), and coastal sightings have been made as far north as Costa Rica 
(Coco Island and Golfo Dulce, 8[deg] N.) (Acevedo and Smultea, 1995; 
May-Collado et al., 2005). In the summer months, these whales migrate 
to feeding grounds located in waters off southern Chile, the Magellan 
Strait, and the Antarctic Peninsula (May-Collado et al., 2005; 
F[eacute]lix et al., 2006b; Acevedo et al., 2008).
    Sightings and survey data suggest that humpback whales in the 
Arabian Sea are primarily concentrated in the shallow near-shore areas 
off the coast of Oman, particularly in the Gulf of Masirah and Kuria 
Muria Islands regions (Minton, 2004); sightings and strandings suggest 
a population range that encompasses the northern Gulf of

[[Page 22315]]

Aden, the Balochistan coast of Pakistan, and western India and Sri 
Lanka, with occasional sightings on the Sistan and Baluchistan coasts 
of Iran, and also Iraq (Al Robaae, 1974; Braulik et al., 2010). Photo-
identification re-sightings suggest humpback whales move seasonally 
between the Dhofar region (Kuria Muria Islands) in winter and the Gulf 
of Masirah to the north in summer, with similar re-sighting rates 
between and within regions (Minton et al., 2010b).
    Despite extensive comparisons of photo-identification catalogues 
and genotyped individuals between Oman and the other Indian Ocean 
catalogues and genetic datasets, no matches have been detected between 
regions (Pomilla et al., 2006; Minton et al., 2010a). Humpback whales 
from this region carry fewer and smaller barnacles than Southern 
Hemisphere whales, and do not exhibit the white oval scars indicative 
of cookie cutter shark (Isistius brasiliensis) bites, a feature 
commonly seen on some Southern Hemisphere humpback whales (Mikhalev, 
1997).
    Connections between the Arabian Sea population with the other 
Northern Hemisphere populations are highly unlikely as there is no 
accessible northward passage from the Arabian Sea. Furthermore, there 
are no mitochondrial DNA haplotypes or song patterns shared with North 
Pacific humpback whales (Whitehead, 1985; Rosenbaum et al., 2009); 
thus, on current evidence, and in the absence of comparisons with far 
western North Pacific humpbacks, it appears that whales from these 
populations have no recent biological connectivity. Analysis of fetal 
lengths in pregnant females killed by Soviet whalers clearly indicate 
that this population exhibits a Northern Hemisphere reproductive cycle, 
with births occurring in the boreal winter (Mikhalev, 1997).
Discreteness
    Olavarr[iacute]a et al. (2007) analyzed patterns of mtDNA control 
region variation obtained from 1,112 samples from 6 breeding grounds in 
the South Pacific: New Caledonia, Tonga, Cook Islands, eastern 
Polynesia, Colombia, and Western Australia. Of these areas, the samples 
from Colombia were most differentiated (FST = 0.06--0.08 in 
pairwise comparison to other areas). Pairwise divergence among the 
other areas was lower (FST = 0.01--0.05). All pairwise 
comparisons were statistically >0, however, and indicated a lack of 
free exchange among these breeding areas. Levels of haplotype diversity 
were generally very high (0.90--0.97). Rosenbaum et al. (2009) 
conducted a similar study of breeding areas in the Southern Atlantic 
and Western Indian Oceans, including the coastal areas of Brazil, 
Southwestern Africa, and Southeastern Africa. Levels of differentiation 
among these are statistically significant but relatively low, with 
FST ranging from 0.003 (among two Southwestern African 
locations) to 0.017 (between Brazil and Southeastern Africa). Although 
there was some detectable differentiation among samples from 
Southwestern and Southeastern African coastal locations (B1/B2 and C1/
C2/C3 International Whaling Commission (IWC) stocks, respectively), the 
levels of divergence within these areas were very low (FST = 
0.003-0.009 within the ``B'' stock and 0.002-0.005 within the ``C'' 
stock). The estimated number of migrants per generation was 26 between 
Brazil and Southwestern Africa, and 33 between Southwestern and 
Southeastern Africa.
    A report on an IWC workshop devoted to Southern Hemisphere stock 
structure issues (IWC, 2011) recognizes at least seven ``breeding 
stocks'' associated with low-latitude, winter breeding grounds and, in 
some cases, migratory corridors. These seven breeding stocks are 
referred to alphabetically, from A to G, to distinguish them from the 
six management areas on feeding grounds of the Antarctic, referred to 
as Areas I-VI. The current breeding stock designations are southwestern 
Atlantic (A), southeastern Atlantic (B), southwestern Indian Ocean (C), 
southeastern Indian Ocean (D), southwestern Pacific (E), Oceania (E and 
F) and southeastern Pacific (G). These designations have been 
subdivided to reflect improved understanding of substructure within 
some of these regions: Gabon (B1) and Southwest Africa (B2) in the 
southeastern Atlantic; Mozambique (C1), the Comoros Archipelago (C2), 
Madagascar (C3) and the Mascarene Islands (C4) in the southwestern 
Indian Ocean, east Australia (E1), New Caledonia (E2), Tonga (E3), the 
Cook Islands (F1) and French Polynesia (F2) in the southwestern Pacific 
and Oceania. The IWC has also chosen to include in this assessment, a 
year-round population of humpback whales found in the Arabian Sea, 
north of the equator in the northern Indian Ocean (formerly referred to 
as breeding stock X).
    The BRT noted that the magnitude of mitochondrial DNA 
differentiation (as measured by FST) was generally lower 
among Southern Hemisphere breeding areas than it is in the Northern 
Hemisphere, indicating greater demographic connectivity among these 
areas. Even so, significant differentiation was present among major 
breeding areas, and the estimated number of migrants/generation among 
areas was small compared to the estimated sizes of the populations.
    The BRT members concluded that the seven breeding stocks of 
humpback whales currently formally recognized by the IWC in the 
Southern Hemisphere meet the criteria for being discrete populations 
under the DPS Policy guidelines, except that they agreed that the 
dividing line between IWC stocks E and F was between eastern Australia 
and Oceania (defined here to include New Caledonia, Tonga, Samoa, 
American Samoa, and French Polynesia), as there are large differences 
in the rates of recovery between these two regions, indicating they are 
demographically independent. Breeding populations in New Caledonia and 
east Australia are separate, but some overlap between the populations 
occurs: some whales bound for New Caledonia use the same migratory 
pathways as some whales headed past east Australia. There was consensus 
among the BRT to divide the Southern Hemisphere into seven discrete 
populations: Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, West Australia, East Australia, Oceania (including New 
Caledonia, Tonga, Cook Islands, Samoa, American Samoa and French 
Polynesia), and Southeastern Pacific (Colombia and Ecuador). We agree 
with the BRT's conclusions, based on the significant mitochondrial DNA 
differentiation among major breeding populations.
    With regard to the Arabian Sea population, nuclear and 
mitochondrial DNA diversity of humpback whales from Oman (up to 47 
individuals sampled) is the lowest among all breeding grounds (Pomilla 
et al., 2006; Olavarr[iacute]a et al., 2007; Rosenbaum et al., 2009). 
Mitochondrial DNA analysis revealed only eight distinct haplotypes, 
half of which are exclusive to Oman (not detected on other breeding 
grounds, Pomilla et al., 2006). Haplotype diversity at the mtDNA 
control region is markedly lower than in other populations (0.69 vs 
0.90-0.98 for Southern Hemisphere populations and 0.84 for North 
Pacific populations) (Olavarr[iacute]a et al., 2007; Rosenbaum et al., 
2009; Baker et al., 2013).
    Genetic data (nuclear microsatellites and mitochondrial control 
region) and fluke pigmentation markings indicate that the Arabian Sea 
breeding population is significantly differentiated from Southern 
Indian Ocean breeding grounds (Rosenbaum et al., 2009). Nuclear genetic 
analysis suggests that this population is the most strongly and 
significantly differentiated in all

[[Page 22316]]

comparisons among other Indian Ocean and South Atlantic breeding 
populations (pair-wise FST range between Oman and Southern 
Indian Ocean breeding populations = 0.38-0.48) (Pomilla et al., 2006). 
Levels of mitochondrial DNA differentiation between Oman and other 
Indian Ocean breeding grounds are around ten times higher than among 
the other breeding grounds (pair-wise FST range between Oman 
and other Indian Ocean breeding populations 0.11-0.15) (Rosenbaum et 
al., 2009).
    The BRT concluded, and we agree, that the Arabian Sea population is 
discrete from all other populations because of its low haplotype 
diversity compared to Southern Hemisphere and North Pacific 
populations, its differentiation in mtDNA and nDNA markers, and fluke 
pigmentation differences between whales in the Arabian Sea and in the 
Southern Indian Ocean.
Significance
    The BRT noted that, within the Southern Hemisphere, most breeding 
populations feed in the same Antarctic marine ecosystem. One exception 
is the Brazil population, which feeds north of 60[deg] S. in the South 
Georgia and South Sandwich Islands area (IWC, 2011). In addition to 
feeding in the Antarctic system, the Gabon/Southwest Africa population 
may also feed along the west coast of South Africa in the Benguela 
Current, but this is uncertain (IWC, 2011). Like the Central America 
population, the Southeastern Pacific breeding population may also be 
ecologically unique as it is the only population in the Southern 
Hemisphere to occupy an area also used by a Northern Hemisphere 
population. We conclude that the Brazil, Gabon/Southwest Africa, and 
Southeastern Pacific populations occupy unique ecological settings and 
are therefore significant to the Southern Hemisphere subspecies of the 
humpback whale.
    For the Southern Hemisphere, determination of feeding range is more 
difficult since Antarctic feeding areas are less well studied and fewer 
connections between breeding and feeding populations have been made. 
However, some populations such as Brazil, Southwest Africa, Southeast 
Africa, and the Southeastern Pacific are believed to have fairly 
discrete and non-overlapping feeding areas, suggesting that if any of 
these feeding areas were lost it would, in combination with the lost 
breeding area, result in a significant gap in the range. We conclude, 
therefore, that the Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, and Southeastern Pacific populations are significant to the 
Southern Hemisphere subspecies of the humpback whale because their loss 
would result in significant gaps in the range of the Southern 
Hemisphere subspecies. Further, we believe that the loss of the West 
Australia, East Australia, and Oceania populations would also result in 
significant gaps in the ranges of the Southern Hemisphere subspecies 
because their non-overlapping breeding ranges are quite extensive.
    In the Southern Hemisphere, the Southeastern Pacific population is 
the only breeding population that contains a genetic signal from 
Northern Hemisphere populations, giving it a unique genetic signature 
within the Southern Hemisphere (Baker et al., 1993; Baker and Medrano-
Gonz[aacute]lez, 2002). It is also the most divergent of any of the 
Southern Hemisphere populations (Olavarr[iacute]a et al., 2007). In 
addition, individuals in this region are morphologically distinct as 
they have darker pectoral fin coloration than other individuals in the 
Southern Hemisphere (Chittleborough, 1965), although the genetic basis 
for this trait is not known. Nonetheless, a majority of the BRT 
concluded that the Southeastern Pacific population was sufficiently 
differentiated so as to differ `markedly' in its genetic 
characteristics from other Southern Hemisphere populations. In 
contrast, all other Southern Hemisphere populations were characterized 
by generally low levels of differentiation among them, consistent with 
demographically discrete populations but not necessarily with marked 
genetic divergence associated with long-term isolation 
(Olavarr[iacute]a et al., 2007; Rosenbaum et al., 2009). We conclude 
that the Southeastern Pacific population of the humpback whale is 
significant to the Southern Hemisphere population of the humpback whale 
because it differs markedly in its genetic characteristics from other 
Southern Hemisphere populations. We conclude that each of the seven 
discrete Southern Hemisphere populations (Brazil, Gabon/Southwest 
Africa, Southeast Africa/Madagascar, West Australia, East Australia, 
Oceania, and Southeastern Pacific) satisfies at least one significance 
factor of the DPS Policy, and, therefore, we consider them to be DPSs.
    The Arabian Sea population persists year-round in a monsoon driven 
tropical ecosystem with highly contrasting seasonal wind and resulting 
upwelling patterns. The BRT therefore concluded that this population 
persists in a unique ecological setting. The Arabian Sea population 
segment does not migrate extensively, but instead feeds and breeds in 
the same geographic location. No other humpback whale populations 
occupy this area and hence, a loss of the Arabian Sea population would 
result in a significant gap in the range of the Southern Hemisphere 
subspecies. The BRT also concluded that the Arabian Sea population 
differs markedly in its genetic characteristics from other populations 
in the Indian Ocean and worldwide. The degree of genetic 
differentiation at multiple genetic markers between this population and 
other populations is similar to or greater than the degree of 
divergence among the North Pacific, North Atlantic, and Southern 
Hemisphere areas. The BRT unanimously concluded that the Arabian Sea 
population would be considered a DPS under any global taxonomic 
scenario, due to its marked genetic divergence from all other 
populations and unique ecological setting. We agree that the Arabian 
Sea population occupies a unique ecological setting, its loss would 
result in a significant gap in the range of the Southern Hemisphere 
subspecies, and it differs markedly in its genetic characteristics from 
other populations. Therefore, it meets the significance criterion of 
the DPS policy, and we identify the Arabian Sea population as a DPS.

Extinction Risk Assessment

    The BRT discussed the relationship between population size and 
trend and extinction risk, citing relevant literature on small 
population size, environmental and demographic stochasticity, genetic 
effects, catastrophes, and extinction risk (e.g., Franklin, 1980; 
Soul[eacute], 1980; Gilpin and Soul[eacute], 1986; Allendorf et al., 
1987; Goodman, 1987; Mace and Lande, 1991; Frankham, 1995; Lande, 1998; 
Lynch and Blanchard, 1998; Lynch and Lande, 1998; Frankham, 1999; Brook 
et al., 2006; Mace et al., 2008) and concluding that population size 
criteria similar to those described in Mace et al. (2008) 
(International Union for Conservation of Nature and Natural Resources 
(IUCN) Red List criteria) could be considered carefully but not used as 
the sole criterion for evaluating extinction risk. The criteria the BRT 
considered are that a DPS with a total population size >2,000 was not 
likely to be at risk due to low abundance alone, a DPS with a 
population size <2,000 would be at increasing risk from factors 
associated with low abundance (and the lower the population size, the 
greater the risk), a DPS with a population size <500 would be at high 
risk due to low abundance, and a DPS with a population size <100 would 
be at extremely high risk due to

[[Page 22317]]

low abundance. But again, this was not the sole criterion considered by 
the BRT, as the BRT also considered how any of the factors (or threats) 
listed under ESA section 4(a)(1) contribute to the extinction risk of 
each DPS now and in the foreseeable future. Demographic factors that 
cause a species to be at heightened risk of extinction, alone or in 
combination with other threats under section 4(a)(1), are considered 
under ESA Factor E--other natural or manmade factors affecting the 
continued existence of the species. Ultimately, the BRT considered both 
the abundance and trend information and the threats to each DPS before 
making its conclusions on overall extinction risk for each DPS.
    The BRT considered abundance and trend information and categorized 
each DPS' abundance as described above and indicated whether the 
population trend was increasing strongly, increasing moderately, 
stable/little trend, or declining. The BRT included an ``unknown'' 
category where data were not sufficient to detect a trend. To express 
uncertainty in abundance or trend information for any DPS, the BRT 
categorized abundance and trend in more than one category. As noted 
above, while NMFS' 1991 Humpback Whale Recovery Plan recommended that 
populations grow to at least 60 percent of their historical (pre-
hunting) abundance to be considered recovered, it did not identify 
specific numerical targets due to uncertainty surrounding historical 
abundance levels. So, the plan suggested an interim goal of doubling 
the population sizes within 20 years, which corresponds to an annual 
growth rate of about 3.5 percent. Because historical size of humpback 
whale populations continues to be uncertain (Bettridge et al., 2015) 
two decades after the recovery plan was finalized, and humpback whale 
survey periods have not spanned 20 years since issuance of the 1991 
recovery plan, data are not available to evaluate the status of 
humpback whale populations against these goals. Therefore, the BRT 
focused its biological risk analysis primarily on recent abundance 
trends and whether absolute abundance was sufficient for biological 
viability in light of consideration of the factors under Section 
4(a)(1). This is a valid approach that we often use to evaluate the 
risk of extinction to populations.
    The BRT also ranked the severity of 16 current or imminent threats 
to the humpback whale DPSs (1 = low or none, threat is likely to have 
no or minor impact on population size or the growth rate; 2 = medium, 
threat is likely to moderately reduce the population size or the growth 
rate of the population; 3 = high, threat is likely to seriously reduce 
the population size or the growth rate of the population, 4 = very 
high, threat is likely to eliminate the DPS, unknown = severity of 
threat is unknown) and also indicated whether the trend of any threat 
was increasing.
    Finally, the BRT members assessed the risk of extinction for each 
DPS by distributing 100 likelihood points among 3 categories of 
extinction risk: (1) High Risk = a species or DPS has productivity, 
spatial structure, genetic diversity, and/or a level of abundance that 
place(s) its persistence in question. The demographics of a species/DPS 
at such a high level of risk may be highly uncertain and strongly 
influenced by stochastic and/or small population effects. Similarly, a 
species/DPS may be at high risk of extinction if it faces clear and 
present threats (e.g., imminent destruction, modification, or 
curtailment of its habitat; or disease epidemic) that are likely to 
create an imminent risk of extinction; (2) Moderate Risk = a species or 
DPS is at moderate risk of extinction if it exhibits characteristics 
indicating that it is likely to be at a high risk of extinction in the 
future. A species/DPS may be at moderate risk of extinction due to 
projected threats and/or declining trends in abundance, productivity, 
spatial structure, or diversity; and (3) Not at Risk = a species or DPS 
is not at risk of extinction.
    The BRT decided to evaluate risk of extinction over a time frame of 
approximately 60 years, which corresponds to about three humpback whale 
generations. The BRT concluded it could be reasonably confident in 
evaluating extinction risk over this time period (the foreseeable 
future) because current trends in both the biological status of the 
species and the threats it faces are reasonably foreseeable over this 
period of time. In making our listing determinations, we have applied 
this same time horizon. In the next sections, we summarize the 
information presented in the BRT's status review report; see Bettridge 
et al. (2015) for more details.

Abundance and Trends for Each DPS

West Indies DPS

    As discussed above, this DPS consists of the humpback whales whose 
breeding range includes the West Indies and whose feeding range 
primarily includes the Gulf of Maine, eastern Canada, and western 
Greenland. While many West Indies whales also use feeding grounds in 
the central (Iceland) and eastern (Norway) North Atlantic, many whales 
from these feeding areas appear to winter in another location. The 
breeding range of this DPS within the West Indies is the entire 
Antillean arc, from Cuba to the Gulf of Paria, Venezuela.
    Several abundance estimates for the West Indies DPS have been made 
from photo-identification studies and biopsy samples and genetic 
identification using a Chapman 2-sample estimator, some comparing 
feeding ground samples to West Indies breeding ground samples, others 
comparing breeding ground samples to breeding ground samples 
(Palsb[oslash]ll et al., 1997; Smith et al., 1999; Clapham, 2003; 
Clapham et al., 2003a; Stevick et al., 2003; Barlow et al., 2011; 
Waring et al., 2012). Those estimates using breeding-to-breeding ground 
comparisons tend to be negatively biased (Barlow et al., 2011). The 
most accurate estimate made using photo-identification studies for the 
Years of the North Atlantic Humpback (YONAH) data (1992 and 1993 data) 
was 10,752 (CV = 6.8 percent) (Stevick et al., 2003). A Chapman 2-
sample estimator was also applied to the genetic identification data, 
again using the feeding grounds (Gulf of Maine, Canada, and Greenland) 
as the mark, and the West Indies breeding ground as the recapture. This 
resulted in an estimate of 10,400 (95 percent CI 8,000-13,600; Smith et 
al., 1999). Note that this is nearly identical to the photo-based 
estimate using an identical estimator (10,752 photo vs. 10,400 
genetic).
    Additional sampling was conducted in the West Indies in 2004 and 
2005 in order to obtain an updated abundance estimate for the West 
Indies population (More of North Atlantic Humpbacks (MONAH) project; 
(Clapham, 2003; Waring et al., 2012), and the BRT reviewed a 
preliminary analysis of these data. A Chapman 2-sample estimator was 
applied to the MONAH genetic identification data, using the feeding 
grounds (Gulf of Maine only) as the mark, and the West Indies breeding 
ground as the recapture, resulting in an estimate of 12,312 (95 percent 
CI 8,688-15,954) (NMFS unpublished data). This estimate is nearly 
directly comparable to the genetic estimate of 10,400 for 1992-93 
(Smith et al., 1999), with the exception that the earlier YONAH 
estimate used marked animals from Canada and West Greenland in addition 
to the Gulf of Maine. If it can be assumed that whales from Canada and 
Greenland have the same capture probability in the West Indies as do 
whales from the Gulf of Maine, this should not introduce any bias. The 
MONAH estimate of 12,312 is consistent with the increasing trend for 
the West

[[Page 22318]]

Indies shown in Stevick et al. (2003), though it suggests the 
increasing trend in the population has slowed down.
    Stevick et al. (2003) estimated the average rate of increase for 
the West Indies breeding population at 3.1 percent per year (SE = 0.5 
percent) for the period 1979-1993, but because of concerns that the 
same data may have been used twice and potentially lead to an over-
estimate of the precision of the trend estimate, they re-calculated the 
trend analysis using only one set of abundance estimates for each time 
period. The revised trend for this time period was still 3.1 percent 
(SE=1.2 percent). When the MONAH estimate of 12,312 was added to the 
analysis, the increase from 1979-80 to 2004-05 was estimated to be 2.0 
percent (SE=0.6 percent) per year, lower than for the earlier time 
period, but the increase was still significantly different from 0.0 (p 
= 0.008). The Silver Bank population, which serves as a proxy for the 
West Indies DPS, may be increasing or may be leveling off, but there 
are not enough data yet to support a strong conclusion.
    In contrast, estimates from feeding areas in the North Atlantic 
indicate strongly increasing trends in Iceland (1979-88 and 1987-2007), 
Greenland (1984-2007), and the Gulf of Maine (1979-1991). There is some 
indication that the increase rate in the Gulf of Maine has slowed in 
more recent years (6.5 percent from 1979 to 1991 (Barlow and Clapham 
(1997)), 0-4 percent from 1992-2000 (Clapham et al. (2003a))). It is 
not clear why the trends appear so different between the feeding and 
breeding grounds. A possible explanation would be that the Silver Bank 
breeding ground has reached carrying capacity, and that an increasing 
number and percentage of whales are using other parts of the West 
Indies as breeding areas. If local abundance has indeed increased in 
some areas other than Silver Bank, it would suggest that the West 
Indies population is larger than estimated by the MONAH study, and that 
the increase rate of the overall population may be higher than the 2 
percent we estimate.

Cape Verde Islands/Northwest Africa DPS

    The population abundance and population trend for the Cape Verde 
Islands/NW Africa DPS are unknown. The Cape Verde Islands photo-
identification catalog contains only 88 individuals from a 20-year 
period (1990-2009) (Wenzel et al., 2010). Of those 88 individuals, 20 
(22.7 percent) were seen more than once, 15 were seen in 2 years, 4 
were seen in 3 years, and 1 was seen in 4 years. The relative high re-
sighting rate suggests a small population size with high fidelity to 
this breeding area, although the DPS may also contain other, as yet 
unknown, breeding areas (Wenzel et al., 2010).

Western North Pacific DPS

    The abundance of humpback whales in the Western North Pacific is 
estimated to be around 1,000, based on the photo-identification, 
capture-recapture analyses from the years 2004-2006 by the ``Structure 
of Populations, Levels of Abundance and Status of Humpback Whales in 
the North Pacific'' (SPLASH) program (Calambokidis et al., 2008) from 
two primary sampling regions, Okinawa and Ogasawara. The growth rate of 
the Western North Pacific DPS is estimated to be 6.9 percent 
(Calambokidis et al., 2008) between 1991-93 and 2004-06, although this 
could be biased upwards by the comparison of earlier estimates based on 
photo-identification records from Ogasawara and Okinawa with current 
estimates based on the more extensive records collected in Ogasawara, 
Okinawa, and the Philippines during the SPLASH program. However, the 
overall number of whales identified in the Philippines was small 
relative to both Okinawa and Ogasawara, so any bias may not be large. 
Overall recovery seems to be slower than in the Central and Eastern 
North Pacific. Humpback whales in the Western North Pacific remain rare 
in some parts of their former range, such as the coastal waters of 
Korea, and have shown no signs of a recovery in those locations (Gregr, 
2000; Gregr et al., 2000).

Hawaii DPS

    Calambokidis et al. (2008) estimated the size of the humpback whale 
populations frequenting the Hawaii breeding area at 10,000 individuals, 
and assuming that proportions from the Barlow et al. (2011) estimate of 
21,808 individuals in breeding areas in the North Pacific are likely to 
be similar to those estimated by Calambokidis et al. (2008), the 
population size frequenting the Hawaii breeding area would have 
increased to about 12,000 individuals. The most recent growth rate for 
this DPS was estimated between 5.5 percent and 6.0 percent 
(Calambokidis et al., 2008).

Mexico DPS

    A preliminary estimate of abundance of the Mexico DPS is 6,000-
7,000 from the SPLASH project (Calambokidis et al., 2008), or higher 
(Barlow et al., 2011). There are no estimates of precision associated 
with that estimate, so there is considerable uncertainty about the 
actual population size. However, the BRT was confident that the 
population is likely to be much greater than 2,000 in total size. 
Estimates of population growth trends do not exist for the Mexico DPS 
by itself. Given evidence of population growth throughout most of the 
primary feeding areas of the Mexico DPS (California/Oregon 
(Calambokidis et al., 2008), Gulf of Alaska from the Shumagins to 
Kodiak (Zerbini et al., 2006a)), it was considered unlikely this DPS 
was declining, but the BRT noted that a reliable, quantitative estimate 
of the population growth rate for this DPS is not currently available.

Central America DPS

    Individual humpback whales in the Central America DPS migrate from 
breeding grounds off Costa Rica, Panama, Guatemala, El Salvador, 
Honduras, and Nicaragua to feeding grounds off California, Oregon, and 
Washington. A preliminary estimate of abundance of the Central America 
population is ~500 from the SPLASH project (Calambokidis et al., 2008), 
or ~600 based on the reanalysis by Barlow et al. (2011). There are no 
estimates of precision associated with these estimates, so there is 
considerable uncertainty about the actual population size. Therefore, 
the actual population size could be somewhat larger or smaller than 
500-600, but the BRT considered it very unlikely to be as large as 
2,000 or more. The size of this DPS is relatively low compared to most 
other North Pacific breeding populations (Calambokidis et al., 2008). 
The trend of the Central America DPS was considered unknown.

Brazil DPS

    The most recent abundance estimate for the Brazil DPS comes from 
aerial surveys conducted off the coast of Brazil in 2002-2005 (Andriolo 
et al., 2010). These surveys covered the continental shelf between 
6[deg] S. and 24[deg]30' S. and provided a best estimate of 6,400 
whales (95 percent CI = 5,000-8,000) in 2005. This estimate corresponds 
to nearly 24 percent of this DPS' pre-exploitation abundance (Zerbini 
et al., 2006d). Nearly 80 percent of the whales are found in the 
Abrolhos Bank, the eastern tip of the Brazilian continental shelf 
located between 16[deg] S. and 18[deg] S. (Andriolo et al., 2010). The 
best estimate of population growth rate is 7.4 percent per year (95 
percent CI = 0.5-14.7 percent) for the period 1995-1998 (Ward et al., 
2011).

Gabon/Southwest Africa DPS

    The lower and upper bounds of the abundance estimate for Iguela, 
Gabon,

[[Page 22319]]

are 6,560 (CV=0.15) for 2001-2004 and 8,064 (CV=0.12) for 2001-2005. 
These were generated using mark-recapture genetic data, and numerous 
other (generally similar) estimates are available depending on model 
assumptions (Collins et al., 2008). There are no trends available for 
this DPS, and it is not entirely clear how the estimates relate to 
potential subdivision within the DPS (Collins et al., 2008). Using a 
Bayesian estimation methodology, Johnston and Butterworth (2008) 
estimate the Gabon population to be in the range of 65-90 percent of 
its pre-exploitation size.

Southeast Africa/Madagascar DPS

    The most recent abundance estimates for the Madagascar population 
were from surveys of Antongil Bay, 2000-2006 (Cerchio et al., 2009). 
Estimates using data from 2004-2006 and involving ``closed'' models of 
photo-identification of individuals and genotype data were 7,406 (CV = 
0.37, CI: 2106-12706) and 6,951 (CV = 0.33, CI: 2509-11394), 
respectively. Additional estimates were made using various data sets 
(e.g., photo-identification and genotype) and models, estimating 4,936 
(CV = 0.44, CI: 2137-11692) and 8,169 individuals (CV = 0.44, CI 3476-
19497, Cerchio et al., 2009). The mark-recapture data were derived from 
surveys over several years and thus may represent the abundance of 
whales breeding off Madagascar, in addition to possibly whales breeding 
in Mayotte and the Comoros (Ersts et al., 2006), and to a smaller 
degree from the East African Mainland (Razafindrakoto et al., 2008).
    Earlier estimates exist, including one of 2,532 (CV = 0.27) 
individuals (Best et al., 1996) based on surveys of the continental 
shelf region across the south and southeast coasts of Madagascar in 
1994. However, these surveys likely did not cover the full distribution 
of humpback whales in the area. Data from a 1991 survey yielded an 
estimate of 1,954 whales (CV = 0.38) (Findlay et al., 1994). A 
subsequent line transect survey in 2003 included a larger region of the 
coast (Findlay et al., 2011). From these, two estimates were generated 
in 2003: 6,664 whales (CV = 0.16); and 5,965 (CV = 0.17) when data were 
stratified by coastal regions.
    Two trends in relative abundance have been calculated from land-
based observations of the migratory stream passing Cape Vidal, east 
South Africa in July 1998-2002, and July 1990-2000. The first was an 
estimate of 12.3 percent per year (Findlay and Best, 2006) (however, 
this estimate is likely outside biological plausibility for this 
species (Bannister and Hedley, 2001; Noad et al., 2008; Zerbini et al., 
2010)); and the second is 9.0 percent (an estimate that is within the 
range calculated for other Southern Hemisphere breeding grounds (e.g., 
Ward et al., 2006; Noad et al., 2008; Hedley et al., 2009)). Both rates 
are considered with caution because the surveys were short in duration. 
It is not certain that these estimates represent the growth rate of the 
entire DPS. Given this uncertainty, and the uncertainty from the short 
duration of the surveys, it is likely the DPS is increasing, but it is 
not possible to provide a quantitative estimate of the rate of increase 
for the entire DPS.

West Australia DPS

    Abundance of northbound humpback whales in the southeastern Indian 
Ocean in 2008 was estimated at 21,750 (95 percent CI = 17,550-43,000) 
based upon line transect survey data (Hedley et al., 2009). The current 
abundance appears likely close to the historical abundance for the DPS, 
although there is some uncertainty of the historical abundance because 
of difficulties in allocating catch to specific breeding populations 
(IWC, 2007a). The current abundance is large relative to any of the 
general guidelines for viable abundance levels (see earlier 
discussion). The rate of population growth is estimated to be ~10 
percent annually since 1982, which is at or near the estimated 
physiological limit of the species (Bannister, 1994; Bannister and 
Hedley, 2001) and well above the interim recovery goal.

East Australia DPS

    Abundance of the East Australia DPS was estimated to be 6,300-7,800 
(95 percent CI: 4,040-10,739) in 2005 based on photo-ID data (Paton and 
Clapham, 2006; Paton et al., 2008; Paton et al., 2009). The annual rate 
of increase is estimated to be 10.9 percent for humpback whales in the 
southwestern Pacific Ocean (Noad et al., 2008). This estimate of 
population increase is very close to the biologically plausible upper 
limit of reproduction for humpbacks (Zerbini et al., 2010). The surveys 
presented by Noad et al. (2005; 2008) have remained consistent over 
time, with a strong correlation (r > 0.99) between counts and years.

Oceania DPS

    The Oceania humpback whale DPS is of moderate size (3,827 whales in 
New Caledonia, Tonga, French Polynesia and Cook Islands combined; 
CV=0.12) (South Pacific Whale Research Consortium et al., 2006); 
however, no trend information is available for this DPS. The DPS is 
quite subdivided, and the population estimate applies to an aggregate 
(although it is known that sub-populations differ in growth rates and 
other demographic parameters). There are some areas of historical range 
extent that have not rebounded and other areas without historical 
whaling information (Fleming and Jackson, 2011). There is uncertainty 
regarding which geographic portion of the Antarctic this DPS uses for 
feeding. The complex population structure of humpback whales within the 
Oceania region creates higher uncertainty regarding demographic 
parameters and threat levels than for any other DPS.

Southeastern Pacific DPS

    Individuals of the Southeastern Pacific population migrate from 
breeding grounds between Costa Rica and northern Peru to feeding 
grounds in the Magellan Straits and along the Western Antarctic 
Peninsula. Though no quantitative growth rate information is available 
for this DPS, abundance estimates over a 13-year period suggest that 
the DPS size is increasing, and abundance was estimated to be 6,504 (95 
percent CI: 4270-9907) individuals in 2005-2006 (F[eacute]lix et al., 
2006a; F[eacute]lix et al., 2011). Total abundance is likely to be 
larger because only a portion of the DPS was enumerated.

Arabian Sea DPS

    Mark-recapture studies using tail fluke photographs collected in 
Oman from 2000-2004 yielded a population estimate of 82 individuals (95 
percent CI: 60-111). However, sample sizes were small, and there are 
various sources of possible negative bias, including insufficient 
spatial and temporal coverage of the population's suspected range 
(Minton et al., 2010b).
    Reproductive rates in this DPS are not well understood. Cow-calf 
pairs were very rarely observed in surveys off the coast of Oman, 
composing only 7 percent of encounters in Dhofar, and not encountered 
at all since 2001. Soviet whaling catches off Oman, Pakistan and 
northwestern India also included low numbers of lactating females (3.5 
percent of mature females) relative to pregnant females (46 percent of 
mature females) (Mikhalev, 1997).
    No trend data are available for this DPS. A low proportion of 
immature whales (12.4 percent of all females) was also found, even 
though catches were indiscriminate with respect to sex and condition 
(Mikhalev, 1997), suggesting that either calf mortality in this DPS is 
high, immature animals occupy areas that have not been surveyed, or 
that the whales have reproductive `boom and bust' cycles which respond 
to high annual variation in productivity. The

[[Page 22320]]

BRT noted that the entire region has not been surveyed; however, in 
areas where the whales are likely to be, not many whales have been 
observed. The BRT noted that this is a very small population but felt 
that there was some uncertainty in abundance estimates.

Summary of Abundance and Trends

    The BRT summarized abundance and trend information for all humpback 
whale DPSs (Tables 7 and 8 in Bettridge et al., 2015).
    In the North Atlantic Ocean, the abundance of the West Indies DPS 
is much greater than 2,000 individuals and is increasing moderately. 
However, little is known about the total size of the Cape Verde 
Islands/Northwest Africa DPS, and its trend is unknown.
    In the Pacific Ocean, the abundance of the Okinawa/Philippines DPS 
(as identified by the BRT) is thought to be about 1,000 individuals 
with unknown trend. Little is known about the abundance of humpback 
whales from the unknown breeding ground (identified as the Second West 
Pacific DPS by the BRT), but it is likely to number at least 100 or 
more, with unknown trend. Combining this information, we conclude that 
there are at least 1,100 individuals in the Western North Pacific DPS, 
and the trend is unknown. The abundances of the Hawaii and Mexico DPSs 
are known to be much greater than 2,000 individuals and are thought to 
be increasing moderately. The abundance of the Central America DPS is 
thought to be about 500 individuals with unknown trend.
    In the Southern Hemisphere, all seven DPSs are thought to be 
greater than 2,000 individuals in population size. The Brazil DPS is 
increasing either rapidly or moderately. The trend in the Gabon/
Southwest Africa DPS is unknown, while the Southeast Africa/Madagascar 
DPS is thought to be increasing. The West Australia and East Australia 
DPSs are both large and increasing rapidly. The Southeastern Pacific 
DPS is thought to be increasing. And the trend of the Oceania DPS is 
unknown.
    The estimated abundance of the Arabian Sea DPS is less than 100, 
but its entire range was not surveyed, so it could be somewhat larger. 
Its trend is unknown.

Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale DPSs

    Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations 
at 50 CFR part 424 set forth procedures for adding species to the 
Federal List of Endangered and Threatened Species. Under section 
4(a)(1) of the ESA, the Services must determine if a species is 
threatened or endangered because of any of the following five factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence.
    In this rulemaking, information regarding the status of each of the 
14 humpback whale DPSs is considered in relation to these factors. The 
information presented here is a summary of the information in the 
Status Review Report (Bettridge et al., 2015). The reader is directed 
to the Threats Analysis subsection under each DPS in the Status Review 
Report for a more detailed discussion of the factors and how they 
affect each DPS.

Section 4(a)(1) Factors Applicable to All DPSs

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range
    The BRT discussed habitat-related threats to humpback whale 
populations, including coastal development, contaminants, energy 
exploration and development, and harmful algal blooms (HABs). 
Substantial coastal development is occurring in many regions, and may 
include construction that can cause increased turbidity of coastal 
waters, higher volume of ship traffic, and physical disruption of the 
marine environment. Noise associated with construction (e.g., pile 
driving, blasting, or explosives) and dredging has the potential to 
affect whales by generating sound levels believed to disturb marine 
mammals under certain conditions. The majority of the sound energy 
associated with both pile driving and dredging is in the low frequency 
range (<1,000 Hz) (Illingworth and Rodkin Inc., 2001; Reyff, 2003; 
Illingworth and Rodkin Inc., 2007). Because humpback whales would only 
be affected when close to shore, the BRT believed that these effects on 
the whales would generally be low. However, if coastal development 
occurred in seasonal areas or migration routes where whales 
concentrate, individuals in the area could be more seriously affected. 
Scheduling in-water construction activities to avoid those times when 
whales may be present would likely minimize the disturbance. The BRT 
was unaware of any circumstance of coastal development resulting in 
humpback whale serious injury or mortality and therefore determined 
that in general coastal development likely poses a low level threat to 
humpback whales.
    For purposes of the status review, the BRT agreed to consider as 
contaminants heavy metals, persistent organic pollutants, effluent, 
airborne contaminants, plastics, and other marine debris and pollution, 
with the exception of oil spills, which is evaluated under ``energy 
exploration and development.'' Numerous regions were highlighted as 
having known or hypothesized high contaminant levels from run-off, 
large human populations, and low levels of regulatory control. 
Halogenated organic pollutants (including dichloro-diphenyl-
trichloroethane (DDT)), hexachlorocyclohexane (HCH) and chlordane (CH) 
insecticides, polychlorinated biphenyl (PCB) coolants and lubricants, 
and polybrominated diphenyl ether (PBDE--flame retardants) can persist 
in the environment for long periods. Air-borne pollutants are 
particularly concentrated in areas of industrialization, and in some 
high latitude regions (Aguilar et al., 2002). While the use of many 
pollutants is now either banned or strictly regulated in some countries 
(e.g., DDTs and PCBs), their use is still unregulated in many parts of 
world, and they can be transported long distances via oceanographic 
processes and atmospheric dispersal (Aguilar et al., 2002).
    Humpback whales can accumulate lipophilic compounds (e.g., 
halogenated hydrocarbons) and pesticides (e.g., DDT) in their blubber, 
as a result of feeding on contaminated prey (bioaccumulation) or 
inhalation in areas of high contaminant concentrations (e.g., regions 
of atmospheric deposition) (Barrie et al., 1992; Wania and Mackay, 
1993). Some contaminants (e.g., DDT) are passed on maternally to young 
during gestation and lactation (e.g., fin whales, Aguilar and Borrell, 
1994). Elfes et al. (2010) described the range and degree of organic 
contaminants accumulated in the blubber of humpback whales sampled on 
Northern Hemisphere feeding grounds. Concentrations were high in some 
areas (Southern California and Northern Gulf of Maine), possibly 
reflecting proximity to industrialized areas in the former case, and 
prey choice in the latter (Elfes et al., 2010). There were also higher 
levels of PCBs, PBDEs, and CH insecticides in the North Atlantic Ocean 
(Gulf of Maine and Bay of Fundy) than in the North Pacific (California, 
Southeast Alaska, Aleutian Islands). The highest levels of DDT were 
found in whales feeding off Southern

[[Page 22321]]

California, a highly urbanized region of the coast with substantial 
discharges (Elfes et al., 2010). This same study found a linear 
increase in PCB, DDT, and chlordane concentration with age of the 
whales sampled. Generally, concentrations of these contaminants in 
humpback whales were low relative to levels found in odontocetes 
(O'Shea and Brownell, 1994). Little information on levels of 
contamination is available from humpback whales on Southern Hemisphere 
feeding grounds.
    The health effects of different doses of contaminants are currently 
unknown for humpback whales (Krahn et al., 2004c). There is evidence of 
detrimental health effects from these compounds in other mammals, 
including disease susceptibility, neurotoxicity, and reproductive and 
immune system impairment (Reijnders, 1986; DeSwart et al., 1996; 
Eriksson et al., 1998). Contaminant levels have been proposed as a 
causative factor in lower reproductive rates found among humpback 
whales off Southern California (Steiger and Calambokidis, 2000), but at 
present the threshold level for negative effects, and transfer rates to 
calves, are unknown for humpback whales. Metcalfe et al. (2004) found 
in biopsy-sampled humpback whale young-of-the-year in the Gulf of St. 
Lawrence PCB levels similar to that of their mothers and other adult 
females, indicating that bioaccumulation can be rapid, and that 
transplacental and lactational partitioning did little to reduce 
contaminant loads.
    Although there has been substantial research on the identification 
and quantification of such contaminants on individual whales, no 
detectable effect from contaminants has been identified in baleen 
whales. There may be chronic, sub-lethal impacts that are currently 
unknown. The difficulty in identifying contaminants as a causative 
agent in humpback whale mortality and/or decreased fecundity led the 
BRT to conclude the severity of this threat was low in all regions, 
except where lack of data indicated a finding of unknown.
    The BRT defined identified threats from energy exploration and 
development to include oil spills from pipelines, rigs, or ships, 
increased shipping, and construction surrounding energy development 
(oil, gas, or alternative energy). This category does not include noise 
from energy development, which is considered under ``anthropogenic 
noise.'' Little is known about the effects of oil or petroleum on 
cetaceans and especially on mysticetes (baleen whales, characterized by 
having baleen plates for filtering food from water, rather than teeth 
like in the toothed whales (odontocetes)). Oil spills that occur while 
whales are present could result in skin contact with the oil, baleen 
fouling, ingestion of oil, respiratory distress from hydrocarbon 
vapors, contaminated food sources, and displacement from feeding areas 
(Geraci et al., 1989). Actual impacts would depend on the extent and 
duration of contact, and the characteristics of the oil. Most likely, 
the effects of oil would be irritation to the respiratory membranes and 
absorption of hydrocarbons into the bloodstream (Geraci et al., 1989). 
Polycyclic aromatic hydrocarbons (PAHs) are components of crude oil 
which are not easily degraded and are insoluble in water, making them 
quite detrimental in the marine environment (Pomilla et al., 2004). 
PAHs have been associated with proliferative lesions and alteration to 
the immune and reproductive systems (Martineau et al., 2002). Long-term 
ingestion of pollutants, including oil residues, could affect 
reproduction, but data are lacking to determine how oil may fit into 
this scheme for humpback whales.
    Although the risk posed by operational oil rigs is likely low, 
failures and catastrophic events that may result from the presence of 
rigs pose high risks. Since the BRT had already determined that threat 
assessments would focus on present threats, the mere presence of oil 
rigs was not interpreted to warrant a threat level above low. However, 
the level of impact that such a catastrophic event may have on a 
population was considered in the evaluations.
    Some algal blooms are harmful to marine organisms and have been 
linked to pollution from untreated industrial and domestic wastewater. 
Toxins produced by different algae can be concentrated as they move up 
the food chain, particularly during algal blooms. Naturally occurring 
toxin poisoning can be the cause of whale mortalities and is 
particularly implicated when unusual mortality events (UME) occur. 
Despite these UMEs, the BRT determined that HABs represent a minor 
threat to most humpback whale populations. HABs may be increasing in 
Alaska, but the BRT was unaware of records of humpback whale mortality 
resulting from HABs in this region.
B. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes
    The BRT described whaling (commercial, scientific, subsistence 
hunting, and other ``hunts''), whale-watching, and scientific research 
activities and evaluated whether they were impacting humpback whales. 
Direct hunting, although rare today, was the main cause of initial 
depletion of humpback whales and other large whales. The BRT believed 
that the likelihood that commercial whaling will resume in the 
foreseeable future is currently low (see discussion under Inadequacy of 
Regulatory Mechanisms below). With regard to scientific whaling, Japan 
has already announced its plan to remove humpback whales from its 
scientific proposals in the future (Government of Japan, 2014).
    In summary, the current impact of all whaling activities on global 
humpback whale populations is very low, with only a handful of humpback 
whales taken annually in two known aboriginal harvests. The BRT 
discussed the possibility of expanded commercial whaling of humpback 
whales in the Southern Ocean but determined that new whaling action in 
the foreseeable future was unlikely. Therefore, the BRT attributed a 
low level risk of whaling for all but one DPS (see Western North 
Pacific DPS section).
    Whale-watch tourism is a global industry with major economic value 
for many coastal communities (O'Connor et al., 2009). The industry has 
been expanding rapidly since the 1980s (estimated 3.7 percent global 
increase in whale watchers per year between 1998-2008, O'Connor et al., 
2009; Kessler and Harcourt, 2012). Whale-watching operations have been 
documented in 119 countries worldwide as of 2008, including on many 
humpback whale feeding grounds, breeding grounds, and migratory 
corridors (O'Connor et al., 2009). Efforts to manage whale-watching 
operations have included limiting the number of whale-watching vessels, 
limiting the time vessels spend near whales, specifying the manner of 
operating around whales, and establishing limits to the period of 
exposure of the whales. In some areas, whale-watching industries 
operate under regulations while others operate under guidelines or are 
still unregulated, and this industry is still growing rapidly in many 
areas (over 10 percent per year in Oceania, Asia, South America, 
Central America and the Caribbean) (Carlson, 2009; O'Connor et al., 
2009).
    Weinrich et al. (2008) observed that the most common reported 
response of humpback whales to whale-watching boats was increased 
swimming speed during exposure; there was little evidence of 
significant effects on inter-breath intervals and blow rates. Passive 
acoustic monitoring and localization of humpback whale songs in the 
presence of whale-watching boats on Brazilian

[[Page 22322]]

breeding grounds also found that whales moved away from the boat in the 
majority of cases (68.4 percent of the time when boats were less than 
2.5 miles (4.0 km) distant, Sousa-Lima and Clark, 2009).
    Only one study has attempted to assess the population-level effects 
of whale-watching on humpback whales, as the relevant parameters are 
very difficult to measure. Weinrich and Corbelli (2009) reported that 
calving rate and calf survival to age 2 in humpback whales on 
Stellwagen Bank (part of the Gulf of Maine feeding ground) did not seem 
to be negatively affected by whale-watching. The authors noted, 
however, that in areas of heavy ship traffic, isolating the impacts of 
whale-watching on biological parameters is difficult and may not be 
conclusive (Weinrich and Corbelli, 2009) and is difficult to determine 
at either the individual or population level.
    The BRT discussed the available evidence regarding the impact of 
whale-watching on humpback whale populations. All available evidence 
supports the conclusion that the impact of these activities on humpback 
whale populations is negligible, and the BRT determined this threat is 
low for all DPSs.
    Humpback whales have been the subject of field research studies for 
decades. The primary objective of many of these studies has generally 
been to gather data for behavioral and ecological studies. In the 
United States, permits authorize investigators to make close approaches 
to endangered whales for photographic identification, biopsy sample 
collection, behavioral observations, passive acoustic recording, aerial 
photogrammetry, satellite tagging, and underwater observations. 
Research on humpback whales is likely to continue and increase in the 
future, especially for the collection of genetic information, 
photographic studies, and acoustic studies. Research activities could 
result in disturbance to humpback whales, but they are closely 
monitored and evaluated in the United States in an attempt to minimize 
any necessary impacts of research. Regulation of research activities in 
other nations varies from effectively no regulation to regulations 
comparable to those in the United States. The BRT discussed the 
available evidence regarding the impact of scientific research on 
humpback whale populations. All available evidence supports the 
conclusion that the impact of these activities is negligible, and the 
BRT determined this threat is low for all DPSs.
C. Disease or Predation
    Information on disease or parasites is unavailable for many 
humpback whale populations. Direct monitoring of species biochemistry 
and pathology, used to determine the state of health in humans and 
domestic animals, is very limited for humpback whales, and there is 
little published on humpback whale disease as a result. Humpback whales 
carry a crustacean ectoparasite (the cyamid Cyamus boopis). While the 
whale is the main source of nutrition for this parasite (Schell et al., 
2000), there is little evidence that the parasite contributes to whale 
mortality. Humpback whales can also carry the giant nematode 
Crassicauda boopis (Bayliss, 1920), which is known to cause a serious 
inflammatory response (leading to vascular occlusion and kidney 
failure) in a few balaenopterid species (Lambertsen, 1992).
    Individual humpback whales in Hawaiian waters have a high 
occurrence of skin lesions, but it is unclear whether this is due to a 
parasite or disease. It is estimated that approximately 60 percent of 
adults in Hawaii and Oceania have these skin lesions. Whether the 
lesions are entirely benign is unknown. The BRT concluded that where 
some information is available, disease and parasites do not pose a 
substantial threat to humpback whale populations.
    The most common predator of humpback whales is the killer whale 
(Orcinus orca, Jefferson et al., 1991), though predation by large 
sharks may also occur. Attacks by false killer whales (Pseudorca 
crassidens) have also been reported or inferred on rare occasions. 
Attacks by killer whales on humpback whale calves has been inferred by 
the presence of distinctive parallel `rake' marks from killer whale 
teeth across the flukes (Shevchenko, 1975). While killer whale attacks 
of humpback whales are rarely observed in the field (Ford and Reeves, 
2008), the proportion of photo-identified whales bearing rake scars is 
between zero and 40 percent, with the greater proportion of whales 
showing mild scarring (1-3 rake marks) (Wade et al., 2007; Steiger et 
al., 2008). This suggests that attacks by killer whales on humpback 
whales vary in frequency across regions. It also suggests that either 
most killer whale attacks result in mild scarring, or those resulting 
in severe scarring (4 or more rakes, parts of fluke missing) are more 
often fatal. Most observations of humpback whales under attack from 
killer whales reported vigorous defensive behavior and tight grouping 
when more than one humpback whale was present (Ford and Reeves, 2008).
    Photo-identification data indicate that rake marks are usually 
acquired in the first year of life, although attacks on adults also 
occur (Wade et al., 2007; Steiger et al., 2008). Killer whale predation 
may influence survival during the first year of life (Wade et al., 
2007). There has been some debate as to whether killer whale predation 
(especially on calves) is a motivating factor for the migratory 
behavior of humpback whales (Corkeron and Connor, 1999; Clapham, 2001). 
How significantly motivating this factor is also depends on the 
importance of humpback whales in the diet of killer whales, another 
debated topic that remains inconclusive (Springer et al., 2003; Wade et 
al., 2007; Kuker and Barrett-Lennard, 2010). No analyses of killer 
whale stomach contents have revealed remains of humpback whales 
(Shevchenko, 1975), suggesting that if humpback whales are taken at 
all, they comprise at most a small part of the diet. However, these 
analyses took place during the height of the whaling period, when 
humpback whales were at a low density and may therefore have been less 
available for predation.
    There is also evidence of shark predation on calves and entangled 
whales (Mazzuca et al., 1998). Shark bite marks on stranded whales may 
often represent post-mortem feeding rather than predation, i.e., 
scavenging on carcasses (Long and Jones, 1996).
    The threat of predation was ranked as low or unknown for all DPSs 
because the level of mortality is unknown, but it is likely not 
prohibiting population growth.
D. Inadequacy of Existing Regulatory Mechanisms
    Numerous international and regional regulatory mechanisms are in 
place to protect humpback whales directly or indirectly.
    The International Whaling Commission (IWC) was set up under the 
International Convention for the Regulation of Whaling (ICRW), signed 
in 1946. The IWC established an international moratorium on commercial 
whaling for all large whale species in 1982, effective in 1986; this 
affected all member (signatory) nations (paragraph 10e, IWC, 2009a). 
The IWC has set the catch limits for commercial whaling at zero since 
1985. Since that time, the IWC's Scientific Committee has developed a 
stock assessment and catch limit methodology called the ``revised 
management procedure,'' with the goal of providing information on catch 
limits consistent with maintaining sustainable populations. As of 2014, 
the IWC has maintained the zero catch

[[Page 22323]]

limit, and this policy has engendered considerable debate within the 
organization. The IWC's regulations provide a process by which 
countries may object to specific provisions, and Norway and Iceland 
currently allow commercial whaling based on these objections.
    Iceland and Norway currently hunt a number of whale species 
commercially under objection to the IWC moratorium, although humpback 
whales have not been hunted by either nation in recent years. The 
present international moratorium on commercial whaling will remain in 
place unless a 75 percent majority of IWC signatory members votes to 
lift the moratorium. If this were to happen, then, under current IWC 
management procedures, humpback whale stocks considered to have 
recovered to over 54 percent of their pre-whaling levels (based on a 
detailed ``comprehensive assessment'' of their population status) could 
be subject to commercial whaling, with a quota that in theory would be 
determined by the Revised Management Procedure. This procedure 
implements a quasi-Bayesian Catch Limit Algorithm to calculate 
allowable catches for each stock (Cooke, 1992). The effects of these 
catches on population abundance would be simulated via a series of 
Implementation Simulation Trials prior to agreement of quotas for 
commercial hunting. Since whaling is carried out under objection by 
Iceland and Norway, they are not subject to this management scheme for 
allocating quotas for any species.
    The United States first incorporated the IWC's regime into domestic 
law in the 1971 Pelly Amendment to the Fisherman's Protective Act of 
1967. This amendment provides that when the Secretary of Commerce 
determines that the nationals of a foreign country are diminishing the 
effectiveness of an international fishery conservation program 
(including the IWC's program), the Secretary shall certify this fact to 
the President. The President then has the discretion to ban importation 
of fishing products from the offending country. The United States has 
threatened sanctions under the Pelly Amendment on a number of 
occasions, but to date, it has not imposed economic sanctions on marine 
products. In November 1974, pressure from the United States contributed 
to Japan and the Soviet Union complying with the 1974-1975 quotas. 
Norway was certified in 1987 and several times thereafter. Japan has 
been certified three times, the last being in 2000, and Iceland has 
been certified several times, including in 2011 for whaling activities.
    These measures were further strengthened by the 1979 Packwood-
Magnuson Amendment to the Fishery Conservation and Management Act of 
1976. It provides that, when the Secretary of Commerce certifies that a 
country is diminishing the effectiveness of the work of the IWC, the 
Secretary of State must reduce that country's fishing allocation in 
U.S. waters by at least 50 percent. Certification under the Packwood-
Magnuson Amendment also serves as certification under the Pelly 
Amendment. The threatened application in 1980 of the Packwood-Magnuson 
and Pelly Amendments led South Korea to agree to follow IWC guidelines 
restricting the use of cold (i.e., non-explosive) harpoons. Faced with 
similar pressure, the Republic of China (Taiwan) placed a complete ban 
on whaling in 1981. Without United States support, it is possible that 
the 1986 moratorium would have been substantially limited, as nations 
such as Iceland, Japan, Norway, and the Soviet Union would have opted 
out and continued commercial whaling.
    Since implementation of the international moratorium on whaling, 
some nations have continued to hunt whales under Article VIII of the 
ICRW, which allows the killing of whales for scientific research 
purposes. Three nations originally conducted scientific whaling: 
Iceland, Norway, and Japan. Presently only Japan pursues scientific 
whaling, under the programs JARPAII and JARPNII (`Japanese Whale 
Research Program under Special Permit in the Antarctic' and `North 
Pacific,' respectively). Scientific whaling is presently unregulated, 
and no catch limits are enforced for this activity (Clapham et al., 
2003b). In 2012, the Government of Japan issued Special Permits 
authorizing the implementation of a catch limit of Antarctic minke, 
fin, and humpback whales for scientific purposes in the Southern Ocean; 
a research catch limit of up to 50 humpback whales was included in the 
Special Permits. To date, however, no humpback whales have been taken 
for scientific research by any country. On March 31, 2014, after the 
2013/14 Japanese whale hunt season in the Antarctic, the International 
Court of Justice ruled that past Japanese whaling programs were 
illegal, and Japan immediately terminated its JARPAII programs. In 
September 2014, Japan agreed to a new requirement to submit new 
research proposals to the IWC 6 months before the next annual IWC 
Scientific Committee meeting (in May 2015) so that the IWC could assess 
whether lethal samples are necessary for a specific research program 
and whether the number of whales sampled is scientifically justified. 
Because of the timing, Japan will not hunt whales in the Southern Ocean 
during the 2014/15 season, and this will be the first time in 30 years 
that Japan has not hunted for whales in the Antarctic. Japan's proposed 
research plan for new scientific whale research programs in the 
Antarctic Ocean (NEWREP-A, http://iwc.int/sc-documents) was released on 
November 19, 2014, and it includes only a small number of minke whales.
    The IWC also develops catch limits for aboriginal whaling, 
including take of humpback whales in coastal areas of Greenland and the 
West Indies. The ICRW allows for signatory nations to harvest whales 
for scientific purposes through their own national permit process, 
although humpback whales have not been reported to have been taken 
under this process. The current commercial whaling moratorium is 
providing significant protection to humpback whales.
    The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) is aimed at protecting species at risk from 
unregulated international trade. CITES regulates international trade in 
animals and plants by listing species in one of its three appendices. 
The level of monitoring and control to which an animal or plant species 
is subject depends on the appendix in which the species is listed. 
Appendix I includes species threatened with extinction which are or may 
be affected by trade; trade of Appendix I species is only allowed in 
exceptional circumstances. Appendix II includes species not necessarily 
threatened with extinction presently, but for which trade must be 
regulated in order to avoid utilization incompatible with their 
survival. Appendix III includes species that are subject to regulation 
in at least one country, and for which that country has asked other 
CITES Party countries for assistance in controlling and monitoring 
international trade in that species. Humpback whales are currently 
listed in Appendix I under CITES. With the IWC commercial whaling 
moratorium in place since 1985, commercial trade has not been a problem 
for humpback whales. However, if the moratorium should ever be lifted 
in the future, the humpback whale's CITES Appendix I listing would 
restrict trade so that it would not contribute to the extinction risk 
of the species. Given this support and the long history of CITES work 
and resolutions to support the IWC whaling moratorium, we do not expect 
the

[[Page 22324]]

CITES status of the humpback whale to change if ESA protections are 
removed from the species or any DPSs of the species. For example, CITES 
Resolution Conf. 11.4 (Rev. CoP12) welcomed the Resolution passed by 
the IWC at its Special Meeting in December 1978 requesting that the 
Conference of the Parties to the Convention, at its second meeting, 
take all possible measures to support the IWC ban on commercial whaling 
for certain species and stocks of whales.
    The International Maritime Organization (IMO), a United Nations 
agency and the recognized international authority on shipping and 
safety at sea, participates in reducing the shipping industry's impacts 
to the sea from pollution (oil, garbage, noxious substances). 
Regulations to address pollution from maritime vessels include MARPOL 
(International Convention for the Protection of Pollution from Ships), 
MARPOL Annexes, International Conventions on Oil Pollution Preparedness 
Response and Co-operation, and Prevention of Marine Pollution by 
Dumping of Wastes and Other Matter. The IMO's Marine Environment 
Protection Committee designates regions as ``Particularly Sensitive Sea 
Areas'' (PSSA) and ``Areas to be Avoided'' for various ecological, 
economic, or scientific reasons. PSSA regions include The Great Barrier 
Reef (Australia), the Gal[aacute]pagos Islands (Ecuador), and the 
Papahanaumokuakea Marine National Monument (North Pacific).
    The IMO was approached for the first time regarding conservation of 
an endangered whale species in 1998--a protective measure for North 
Atlantic right whales (Silber et al., 2012). Since then, the IMO has 
been approached over a dozen times with nations' proposals to establish 
or amend routing measures in various locations to reduce the threat of 
vessel collisions with endangered whales, including humpback whales 
(Silber et al., 2012). For example, the IMO has endorsed Areas To Be 
Avoided in U.S. and Canadian waters to reduce the threat of ship 
strikes of right whales (Fleming and Jackson, 2011, pp. 28-29), 
measures that also benefit humpback whales. IMO-endorsed modifications 
to Traffic Separation Schemes (TSS) have been established in areas off 
Boston, San Francisco, and near Santa Barbara (the latter two primarily 
for humpback whales); and a new TSS, along with vessel speed 
advisories, has been proposed for the Pacific side of the Panama Canal 
to protect large whale species from vessel collisions.
    Humpback whales are protected by the MMPA (16 U.S.C. 1361 et seq.). 
The West Indies, Western North Pacific, Hawaii, Mexico, and Central 
America DPSs of the humpback whale can be found in U.S. waters and are 
protected under the MMPA when in U.S. waters as well as from takings by 
U.S. vessels or persons on the high seas. The MMPA includes a general 
moratorium on the taking and importing of marine mammals, which is 
subject to a number of exceptions. Some of these exceptions include 
take for scientific purposes, public display, subsistence use by Alaska 
Natives, and unintentional incidental take coincident with conducting 
lawful activities.
    U.S. citizens who engage in a specified activity other than 
commercial fishing (which is specifically and separately addressed 
under the MMPA) within a specified geographical region may petition the 
Secretaries to authorize the incidental, but not intentional, taking of 
small numbers of marine mammals within that region for a period of not 
more than 5 consecutive years (16 U.S.C. 1371(a)(5)(A)). The Secretary 
``shall allow'' the incidental taking if the Secretary finds that ``the 
total of such taking during each five-year (or less) period concerned 
will have a negligible impact on such species or stock and will not 
have an unmitigable adverse impact on the availability of such species 
or stock for taking for subsistence uses.'' If the Secretary makes the 
required findings, the Secretary also prescribes regulations that 
specify: (1) Permissible methods of taking, (2) means of effecting the 
least practicable adverse impact on the species, their habitat, and 
their availability for subsistence uses, and (3) requirements for 
monitoring and reporting.
    Similar to promulgation of incidental take regulations, the MMPA 
also established an expedited process by which U.S. citizens can apply 
for an authorization to incidentally take small numbers of marine 
mammals where the take will be limited to harassment (16 U.S.C. 
1371(a)(5)(D)). These authorizations are limited to 1 year, and, as 
with incidental take regulations, the Secretary must find that the 
total of such taking during the period will have a negligible impact on 
such species or stock and will not have an unmitigable adverse impact 
on the availability of such species or stock for taking for subsistence 
uses. NMFS refers to these authorizations as Incidental Harassment 
Authorizations.
    Under the MMPA, NMFS also evaluates and provides permits for the 
taking of large whale species for those engaged in scientific research 
focused on those species. NMFS has also issued rules under the 
authority of the MMPA and the ESA to promulgate regulations to address 
the threat of vessel collisions with large whale species, and these 
regulations would remain in place even if humpback whales are no longer 
listed under the ESA.
    The MMPA provides additional protections to ``depleted'' marine 
mammals. For example, NMFS may not provide a take waiver for depleted 
stocks (section 101(a)(3)(A)), authorize importation of individual 
animals taken from depleted marine mammal stocks except pursuant to a 
permit for scientific research or for enhancing the survival or 
recovery of a species or stock (section 102(b)(3)(B)), or issue 
research permits involving the lethal taking of a marine mammal from a 
species or stock that is depleted (unless the Secretary determines that 
the results of such research will directly benefit that species or 
stock, or that such research fulfills a critically important research 
need)(section 104(c)(3)(B)). In addition, if a stock is depleted, it is 
automatically considered ``strategic,'' which then has other management 
implications. For example, under Section 112(e) of the MMPA, if the 
Secretary determines that impacts on rookeries, mating grounds, or 
other areas of similar ecological significance to marine mammals may be 
causing the decline or impeding the recovery of a strategic stock, the 
Secretary may develop and implement conservation or management measures 
to alleviate those impacts. Also, under Section 118, the Secretary may 
develop and implement a take reduction plan designed to assist in the 
recovery or prevent the depletion of each strategic stock that 
interacts with a commercial fishery.
    The humpback whale is considered ``depleted'' under the MMPA 
because of its endangered status under the ESA. See Effects of this 
Rulemaking below for a discussion of the potential consequences of 
removing ESA protections from the humpback whale. While MMPA 
``depleted'' status provides additional protections to humpback whales, 
the MMPA provides substantial protections to humpback whales in U.S. 
waters and from takings by U.S. persons and vessels on the high seas, 
whether they are depleted or not.
    The ESA requires Federal agencies to conduct their activities in 
such a way as to conserve species listed as threatened or endangered. 
Section 7 of the ESA also requires Federal agencies, in consultation 
with the FWS and/or NMFS, to ensure that activities they authorize, 
fund or carry out are not likely to jeopardize the continued existence 
of any listed species (or species proposed for listing) or result in

[[Page 22325]]

the destruction or adverse modification of designated or proposed 
critical habitat of such species. We have conducted scores of Section 7 
consultations with the United States Coast Guard (USCG), the Army Corps 
of Engineers, the Bureau of Ocean Energy Management, and other agencies 
to ensure actions by these agencies do not adversely affect listed 
large whale species, including humpback whales. The ESA forbids the 
import, export, or interstate or foreign sale of species listed as 
endangered without a special permit. It also makes ``take'' of species 
listed as endangered illegal--forbidding, among other things, the 
killing, harming, harassing, pursuing, or removing the species from the 
wild (16 U.S.C. 1532(19)). Any or all of these protections may be 
provided to a species listed as threatened through regulations issued 
under ESA section 4(d)(16 U.S.C. 1533(d)). Of course, ESA protections 
for a species apply only if a species is listed as threatened or 
endangered under the ESA.
    Whale strike mitigation measures currently in place for some 
vessels and regions include using dedicated observers (Weinrich and 
Pekarik, 2007), speed reduction in some important habitat areas (73 FR 
60173; October 10, 2008), and shifting of shipping lanes away from 
areas of whale concentration to accommodate humpback whales and other 
species. Passive acoustic monitoring in areas of high shipping traffic 
also has promise for notifying mariners of whales in the area, as this 
method is relatively inexpensive, although detection is limited to 
vocalizing whales and specific source locations can be hard to 
determine (Silber et al., 2009).
    TSSs are in place for San Francisco Bay and the Santa Barbara 
Channel to ensure safety of navigation. These TSSs were amended in June 
1, 2013, to lessen the possibility of fatal vessel collisions with 
humpback whales and other listed large whale species. Modifications 
include narrowing and extending the Northern and Western approaches 
while the inbound lane of the Santa Barbara Channel TSS has been 
shifted shoreward to reduce the co-occurrence of ships and whales and 
reduce the likelihood of a vessel/whale collision. We expect these TSSs 
and modifications to help reduce the likelihood of vessel collisions 
with humpback whales.
    Congress enacted the Coastal Zone Management Act (CZMA) in 1972 
when it realized that rapid growth was threatening the vital productive 
coastal areas of the country. Congress determined that the most 
effective management of coastal resources would be achieved if states 
were given a major role in developing and administering management 
programs. The Act sought to assure the states that their management 
programs would not be disregarded by Federal agencies whose activities 
would affect the coastal zone. For example, the stepped-up Outer 
Continental Shelf (OCS) development policies of the early 1970s led to 
the 1976 amendments that assured greater state involvement in the 
planning stages of oil and gas development.
    The CZMA accomplishes its goal primarily by encouraging the states 
to develop voluntary coastal zone management programs. Once a state has 
an approved program, it becomes eligible for Federal funds and acquires 
the benefit of the ``consistency provisions.'' Sections 307(c) and 
307(d) of the CZMA establish classes of Federal activities that must be 
consistent with state programs. These include Federal activities that 
directly affect the coastal zone, development projects, Federal 
licenses and permits, OCS exploration, development, and production 
plans, and Federal assistance to states and local governments. Every 
coastal state in the United States except for Alaska currently has an 
approved coastal zone management program. Consistency determinations 
under the CZMA help to ensure that OCS projects do not adversely impact 
humpback whales or humpback whale habitat.
    The U.S. Park Service has jurisdiction over marine waters (through 
the Fish and Wildlife Coordination Act) in Glacier Bay National Park 
and Preserve (established 1980; modified 1985). The following 
regulations are in place to protect humpback whales occurring there in 
the summer: Restrictions on the number of vessels entering park waters; 
restrictions on vessel operating conditions in the known presence of 
humpback whales, mandatory vessel operating requirements in certain 
designated ``whale waters,'' mandatory vessel speed limits at certain 
times and locations; mandatory boater education for boaters entering 
the area, regulations restricting the harvest of humpback whale prey 
species and ship board observers to quantify ship strikes and 
interactions between cruise ships and whales. These regulations should 
contribute somewhat to reducing the extinction risk of the Hawaii and 
Mexico DPSs of the humpback whale because some of these individuals 
feed in the park.
    Under the National Marine Sanctuaries Act, NOAA has broad 
discretion to enact guidelines and regulations to provide protection to 
a number of large whale species, including the humpback whale in key 
aggregation locations. Humpback whales routinely occur in Stellwagen 
Bank, Gulf of the Farrallones, Channel Islands, Monterey Bay, Cordell 
Bank, and Olympic Coast National Marine Sanctuaries. The Hawaiian 
Islands Humpback Whale National Marine Sanctuary (HIHWNMS) was 
established primarily to provide protections to a key North Pacific 
humpback whale breeding/nursery area, and therefore, it should 
contribute to reducing the extinction risk of the Hawaii DPS of the 
humpback whale. NOAA's Office of National Marine Sanctuaries recently 
proposed to expand the boundaries and scope of the HIHWNMS, amend the 
regulations for HIHWNMS, change the name of the sanctuary, and revise 
the sanctuary's terms of designation and management plan (80 FR 16224; 
March 26, 2015). The purpose of the proposed action is to transition 
the HIHWNMS from a single-species management approach to an ecosystem-
based management approach. As part of these revisions, NOAA proposed to 
revise the existing HIHWNMS humpback whale approach regulation at 15 
CFR 922.184 to help minimize incidences of humpback whale harassment or 
injury, to reduce adverse behavioral responses, and to limit vessel 
strikes within the sanctuary (80 FR 16224; March 26, 2015, at 16227).
    The Stellwagen Bank and Gulf of the Farallones National Marine 
Sanctuaries, in particular, have active humpback whale research 
programs and/or have established vessel speed advisories, whale 
approach guidelines, and other measures to reduce human threats to 
humpback and other large whale species. These two national marine 
sanctuaries should contribute to reducing the extinction risk of the 
West Indies, Mexico, and Central America DPSs, as they provide 
protections to humpback whales in these DPSs when they are in their 
feeding grounds.
    Numerous nations have defined marine protected areas and 
sanctuaries that provide some protection to humpback whales (Hoyt, 
2011), and various nations have developed local regulations or 
guidelines governing whale watching activities (O'Connor et al., 2009). 
Hundreds of national laws also exist related directly or indirectly to 
the conservation of marine mammals (Bettridge et al., 2015, Appendix 
B). Where appropriate, some of these are discussed in more detail in 
the DPS-specific sections.

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E. Other Natural or Manmade Factors Affecting Its Continued Existence
    Competition with fisheries, aquaculture, anthropogenic sound, 
vessel strikes, fishing gear entanglement, and climate change are all 
factors that may negatively impact humpback whales.
    The BRT discussed the issue of competition with fisheries at 
length. In some areas, (e.g., Northern Gulf of Maine and Southeast 
Alaska) fishermen encircle feeding humpback whales and harvest fish 
from the bait balls upon which humpback whales feed (D. Matilla, 
unpublished observation). However, there is no evidence that this 
impacts the individuals or significantly depletes the food source. In a 
review of the evidence for interspecific competition in baleen whales, 
Clapham and Brownell (1996) found it to be extremely difficult to prove 
that inter-specific competition comprises an important factor in the 
population dynamics of large whales.
    Aquaculture is not known to be a significant threat to humpback 
whales. Some entanglements have been recorded off Australia. Colombia 
has substantial aquaculture activity in inshore areas, but there is no 
information regarding the impact of this activity on humpback whales. 
The BRT determined that for most DPSs, aquaculture does not pose a 
significant threat to humpback whales and should be assigned a low 
threat level. Sufficient information was not available to determine the 
threat level to the Western North Pacific and Arabian Sea DPSs.
    Humans introduce sound intentionally and unintentionally into the 
marine environment for navigation, oil and gas exploration and 
acquisition, research, and military activities, to name a few examples. 
Noise exposure can result in a range of impacts, from those causing 
little or no impact to those being potentially severe, depending on the 
source, level, and various other factors. Response to noise varies by 
many factors, including the type and characteristics of the sound 
source, distance between the source and the receptor, characteristics 
of the animal (e.g., hearing sensitivity, behavioral context, age, sex, 
and previous experience with sound source) and time of day or season. 
Noise may be intermittent or continuous, steady (non-impulsive) or 
impulsive, and may be generated by stationary or moving sources. As one 
of the potential stressors to marine mammal populations, noise may 
seriously disrupt communication, navigational ability, and social 
patterns. Humpback whales use sound to communicate, navigate, locate 
prey, and sense their environment. Both anthropogenic and natural 
sounds may cause interference with these functions.
    Anthropogenic sound has increased in all oceans over the last 50 
years and is thought to have doubled each decade in some areas of the 
ocean over the last 30 or so years (Croll et al., 2001; Weilgart, 2007; 
Hildebrand, 2009). High levels of ambient anthropogenic noise are known 
to elicit behavioral, acoustic, and physiological responses from large 
whales, though the specific nature of these responses remains largely 
unknown (Nowacek et al., 2007). Low-frequency sound comprises a 
significant portion of this increase and stems from a variety of 
sources including that primarily from shipping, and an increasing 
amount from oil and gas exploration in some areas, as well as research 
and naval activities. Understanding the specific impacts of these 
sounds on mysticetes is difficult. However, it is clear that the 
geographic scope of potential impacts is vast as low-frequency sounds 
can travel great distances under water, but these sounds have the 
potential to reduce communication space (e.g., shipping was predicted 
to reduce communication space of singing humpback whales in the 
northeast by 8 percent; Clark et al., 2009).
    Humpback whales do not appear to be often involved in strandings 
related to noise events. There is one record of two whales found dead 
with extensive damage to the temporal bones near the site of a 5,000 kg 
explosion which likely produced shock waves that were responsible for 
the injuries (Ketten et al., 1993; Weilgart, 2007). Other detrimental 
effects of anthropogenic noise include masking and possible temporary 
threshold shifts. Masking results from noise interfering with cetacean 
social communication, which may range greatly in intensity and 
frequency. Some adjustment in acoustic behavior is thought to occur in 
response to masking and humpback songs were found to lengthen during 
LFA sonar activities (Miller et al., 2000). This altered song length 
persisted 2 hours after the sonar activities stopped (Fristrup et al., 
2003). Researchers have also observed diminished song vocalizations in 
humpback whales during remote sensing experiments 200 km away from the 
whales' location in the Stellwagen Banks National Marine Sanctuary 
(Risch et al., 2012). Hearing loss can also possibly be permanent if 
the sound is intense enough but there is great variability across 
individuals and other factors making it difficult to determine a 
standardized threshold.
    Excessive noise exposure may be damaging during early individual 
development, may cause stress hormone fluctuations, and/or may cause 
whales to leave an area or change their behavior within it (Weilgart, 
2007). Some responses are subtle and may occur after the exposure. 
Humpback whales exposed to underwater explosions and drilling 
associated with construction activities did not appear to change their 
behavior in reaction to the surveys but did appear to have reduced 
orientation abilities. Higher rates of fatal entanglement in fishing 
gear were observed in the area when whales were exposed to excessive 
noise, although the cause for this elevated entanglement rate was 
unclear (Ketten et al., 1993; Todd, 1996). Some studies have found 
little reaction to noise and indicate potential tolerances to 
anthropogenic sound over short time and small spatial scales (Croll et 
al., 2001).
    There is likely an important distinction between immediate 
individual reactions to noise and long-term effects of noise exposure 
to populations. The cumulative and synergistic effects may be more 
harmful than studies to date have been able to assess. Though some 
researchers have argued that habituation to sound may occur, this can 
easily be confused with hearing loss or individual differences in 
tolerance levels (Bejder et al., 2006). Scientifically recommended 
mammal sound exposure levels have been determined and vary depending on 
the sound source strength and the species of marine mammal(s) present 
(Southall et al., 2007). NMFS has recently updated guidance for 
temporary threshold shifts and permanent threshold shifts (see: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm).
    The issue of anthropogenic noise has been an area of intensive 
research but population-level impacts on cetaceans have not been 
confirmed. There is little definite information regarding, for example, 
the interruption of breeding and other behaviors or a resulting 
reduction in population growth or mortality of individuals. Therefore, 
the BRT considered this to be a low threat for all DPSs.
    Collisions between vessels and whales, or ship strikes, often 
result in life-threatening trauma or death for the cetacean. Impact is 
often caused by forceful contact with the bow or propeller of the 
vessel. Ship strikes of humpback whales are typically identified by 
evidence of massive blunt trauma (fractures of heavy bones and/or 
hemorrhaging) in stranded whales,

[[Page 22327]]

propeller wounds (deep slashes or cuts) and fluke/fin amputations on 
stranded or live whales (e.g., Wiley and Asmutis, 1995).
    Laist et al. (2001), Jensen and Silber (2003), Vanderlaan and 
Taggart (2007), and VanWaerebeek and Leaper (2008) compiled information 
available worldwide regarding documented collisions between ships and 
large whales (baleen whales and sperm whales). Humpback whales were the 
second-most commonly reported victims of vessel strikes (following fin 
whales). Of 292 recorded strikes contained in the Jensen and Silber 
(2003) database, 44 were of humpback whales. As of 2008, there were 
more than 143 recorded ship strikes involving humpback whales worldwide 
(Van Waerebeek and Leaper, 2008); however, the reported number is 
likely not a full representation of the actual number (particularly in 
the Southern Hemisphere) as many likely go undetected or unreported 
(Williams et al., 2011). Reporting of ship strikes is highly variable 
internationally, with reports required from vessels in the domestic 
waters of Australia, the United States, and New Zealand but not in 
other countries. Based on the observations of vessel strike injuries 
and mortalities, and whale strike mitigation measures described above 
under Inadequacy of Existing Regulatory Mechanisms, the BRT considers 
the threat of vessel collisions to be low to moderate, depending on 
region, and generally increasing.
    Humpback whales may break through, carry away, or become entangled 
in fishing gear. Whales carrying gear may die at a later time, become 
debilitated or seriously injured, or have normal functions impaired, 
but with no assurance of the incident having been recorded. Of the 
nations reporting to the IWC between 2003-2008, 64.7 percent (n=11) 
noted humpback whale by-catch in their waters (Mattila and Rowles, 
2010). Whales have been documented carrying gear by fishery observer 
programs, opportunistic reports, and stranding networks. Some countries 
(e.g., United States, Canada, Australia, South Africa) have well-
developed reporting and response networks that facilitate the 
collection of information on entanglement frequency and impacts. 
However, such programs do not guarantee that entanglements are 
detected; fewer than 10 percent of humpback whale entanglements 
involving Gulf of Maine humpback whales are reported, despite a strong 
outreach and response network (Robbins and Mattila, 2004). Furthermore, 
opportunistic reports that are not screened by experts do not 
necessarily yield accurate information about events, including gear 
type, configuration, and original site of entanglement (Robbins et al., 
2007b). The likelihood of receiving reports likely varies world-wide 
due to differences in observer awareness, reporting mechanisms, and 
possible negative implications for reporting fishermen (Mattila and 
Rowles, 2010).
    A study of gear removed from a subset of whales off the U.S. East 
Coast showed that 89 percent involved pots/traps or gillnet gear 
(Johnson et al., 2005). However, a wide range of gear types were 
represented and every part of the gear was found to be capable of 
entanglement (Johnson et al., 2005). The authors concluded that any 
line in the water column poses a potential risk of entanglement to 
humpback whales. Known gear types removed from, or documented on, 
entangled whales in Alaska between 1990 and 2013 indicated 32 percent 
of entanglements were from pot gear, 30 percent from gill net, 24 
percent from other net, and 14 percent from a combination of longline, 
seine, mooring line and marine debris (Jensen et al. 2014). This is 
further supported by the wide range of entangling gear reported in the 
South Pacific (Neilson, 2006; Lyman, 2009), Newfoundland (Lien et al., 
1992), and member nations of the IWC (Mattila and Rowles, 2010).
    More than half of the humpback whale entanglements examined off the 
U.S. East Coast involved entanglements around the tail (Johnson et al., 
2005). The mouth and flippers are also known attachment sites, but 
their frequency is more difficult to assess. Scar-based studies have 
been developed to systematically study the frequency of non-lethal 
entanglement involving the tail (Robbins and Mattila, 2001; Robbins and 
Mattila, 2004). These techniques have been used in the Gulf of Maine 
(e.g., Robbins and Mattila, 2001; Robbins and Mattila, 2004; Robbins et 
al., 2009), Southeast Alaska (Neilson et al., 2009), and more broadly 
across the North Pacific Ocean (Robbins et al., 2007a; Robbins, 2009). 
All populations studied in this manner to date have detected 
individuals with entanglement-related injuries. Annual research in the 
Gulf of Maine since 1997 has shown that a high percentage of 
individuals exhibit entanglement injuries and that new injuries are 
acquired at an average annual rate of 12 percent (Robbins et al., 
2009). A 2-year study in Southeast Alaska confirmed frequencies of 
entanglement injuries that were comparable to the Gulf of Maine 
(Neilson et al., 2009). Research undertaken across the North Pacific as 
part of the SPLASH project further suggests that entanglement is 
pervasive, but that interaction rates may be highest among coastal 
populations (Robbins et al., 2007a; Robbins, 2009).
    Both eye-witness reports and scar-based studies suggest that 
independent juveniles are significantly more likely to become entangled 
than adults (Robbins, 2009). Calves exhibit a lower frequency of 
entanglement, likely due to having less time in which to have 
encountered gear (Neilson et al., 2009). Sex differences in 
entanglement frequency have been observed in some locations and time 
intervals (Robbins and Mattila, 2001; Neilson et al., 2009), but these 
effects have not persisted in longer studies (Robbins and Mattila, 
2004).
    Entanglement may result in only minor injury, or potentially may 
significantly affect individual health, reproduction, or survival. In 
one study, females with entanglement injuries produced fewer calves 
than females with no evidence of entanglement; such impacts on 
reproduction are still under investigation (Robbins and Mattila, 2001). 
Mark-recapture studies of the fate of entangled whales in the Gulf of 
Maine suggest that juveniles are less likely than adults to survive 
(Robbins et al., 2008). Observed entanglement deaths and serious 
injuries in that region are known to exceed what is considered 
sustainable for the population (Glass et al., 2009). Most deaths likely 
go unobserved and preliminary studies suggest that entanglement may be 
responsible for 3-4 percent of total mortality, especially among 
juveniles (Robbins et al., 2009).
    Much more is known about fishing gear entanglement in the Northern 
Hemisphere than in the Southern Hemisphere. The BRT noted the 
commercialization of bycatch off Japan, meaning an entangled whale is 
legally allowed to be killed and sold on the market (Lukoschek et al., 
2009). Therefore, entanglement often leads to death for humpback whales 
in this region. While the number of reported bycaught animals is not 
large (3-5), the number of reports has been increasing and reports may 
not reflect the actual number caught. The BRT also noted that the 
Mexico population has one of the highest scar rates from nets and lines 
in the North Pacific, indicating a high entanglement rate. Based on 
this information, the BRT concluded that the severity of the threat of 
fishing gear entanglements varies depending on region, ranging from low 
to high.
    Climate change has received considerable attention in recent years, 
with growing concerns about global

[[Page 22328]]

warming and the recognition of natural climatic oscillations on varying 
time scales, such as long-term shifts like the Pacific Decadal 
Oscillation or short-term shifts, like El Ni[ntilde]o or La 
Ni[ntilde]a. Evidence suggests that the biological productivity in the 
North Pacific (Lowry et al., 1988; Quinn and Niebauer, 1995) and other 
oceans could be affected by changes in the environment. Recent work has 
found that copepod distribution has shown signs of shifting in the 
North Atlantic due to climate change (Hays et al., 2005). Increases in 
global temperatures are expected to have profound impacts on arctic and 
sub-arctic ecosystems, and these impacts are projected to accelerate 
during this century (ACIA, 2004; IPCC, 2007).
    The IWC has held two workshops on the topic of climate change and 
cetaceans (IWC, 1997; IWC, 2010a), and the reports of these meetings 
provide useful summaries on the current state of knowledge on this 
issue, and on the large uncertainties associated with any projections 
of impact.
    It is generally accepted that cetaceans are unlikely to suffer 
problems because of changes in water temperature per se (IWC, 1997). 
Rather, global warming is more likely to effect changes in habitats 
that in turn potentially affect the abundance and distribution of prey 
in these areas. Factors such as ocean currents and water temperature 
may render currently used habitat areas unsuitable and influence 
selection of migration, feeding, and breeding locations for humpback 
and other whales. Changes in climate and oceanographic processes may 
also lead to decreased productivity of, or lead to different patterns 
in, prey distribution and availability. Such changes could affect 
whales that are dependent on this prey. While these regional or ocean 
basin-scale changes may occur, the actual magnitude and resulting 
impacts are not known.
    All cetacean species have undoubtedly lived through considerable 
variation in climate (including multiple ice ages, and significant 
warming events) over the course of their evolutionary history. However, 
there is little knowledge regarding the ways in which cetaceans dealt 
with climate change in the past. Examination of bones related to Basque 
whaling in Canada indicate that the range of bowhead whales (Balaena 
mysticetus) in the North Atlantic shifted south during the so-called 
Little Ice Age in medieval times (McLeod et al., 2008). This almost 
certainly reflected a shift in the distribution of prey because of 
habitat and associated productivity changes, and it likely reflects the 
ability of large whales to adapt and extend their range when necessary.
    There are no data on similar historical shifts by humpback whales. 
Considerable plasticity in the winter distribution of the species is 
suggested by the fact that the use of Hawaii as a major breeding ground 
appears to be a relatively recent phenomenon which occurred sometime in 
the 20th century (Herman, 1979); the reason for such a shift is not 
known, but it is important to recognize that the humpback's winter 
distribution is not tied to prey resources or biological productivity, 
a situation which presumably affords the species with flexibility in 
its colonization of breeding habitats.
    Climate change may disproportionately affect species with 
specialized or restricted habitat requirements. The best-known example 
of this involves dependence upon sea ice, which is thought to represent 
a major problem for polar bears (Ursus maritimus), given that the 
species primarily hunts pagophilic ringed seals (Phoca hispida) 
(Schliebe et al., 2006). This represents a relatively simple and clear-
cut example of cause and effect in the climate change debate; 
unfortunately, the situation for humpback whales and other cetaceans is 
not nearly as simple, given the complexity of the ecosystems in which 
they live. Climate change may exacerbate situations in which 
populations are already small and/or significantly affected by other 
anthropogenic impacts (such as entanglement or ship strikes). Species 
which possess little ability to disperse or colonize new habitats will 
also be particularly vulnerable.
    None of these factors apply to humpback whales, with the possible 
exception of the Arabian Sea population, which is thought to be small 
and vulnerable to entanglement, shipping-related issues and possibly 
pollution. Furthermore, the uniquely restricted range of this non-
migratory population is currently tied to seasonal monsoon-driven 
biological productivity in a relatively small region; the impact of 
climate change on this productivity is unknown, as is the ability of 
these humpback whales to shift their range as may be needed.
    As noted by IPCC (2007), species in general potentially respond in 
one of three ways to major changes in climate: Redistribution, 
adaptation, or extinction. Based upon what is known to date, 
redistribution is the most likely response for most humpback whales. 
Most large whales, including humpbacks, undertake extensive movements, 
both during a feeding season and on migration. These broad ranges 
(which routinely encompass much of an ocean basin), together with the 
animals' ability to withstand prolonged periods of fasting through 
utilization of fat reserves in their blubber, potentially provide the 
whales with a means to adapt their ranges in response to major climate-
related spatial shifts in biological productivity, notably by seeking 
out new habitats. This may in fact already be occurring in some places; 
humpback whales have recently been observed in the eastern Chukchi and 
Beaufort Seas (Clarke et al., 2013), north of their usual range; this 
could represent the beginnings of a response to habitat changes 
relating to diminishing sea ice in the Arctic, although it might also 
simply reflect a growing population expanding its range. Prior to 
extensive whaling, humpback whales appear to have been quite common in 
at least the western (Russian) Chukchi Sea (Zenkovich, 1954; Tomilin, 
1967), and are still observed there today (Clarke et al., 2013).
    The BRT determined that the level of the threat of climate change 
facing the Southern Hemisphere populations was slightly better 
understood than that facing the Northern Hemisphere populations. 
Warming waters are thought to be correlated with a decrease in krill 
production in the Southern Ocean, and this threat is likely to 
increase. The future negative impact implied by a low threat assignment 
is dependent on a substantial decrease in krill populations, a 
subsequent negative impact on prey resource availability to humpback 
whales, and lack of suitable alternate prey such as fish.
    The Southern Ocean is regarded as a relatively simple ecosystem, 
but even here there are substantial problems in quantifying even the 
most basic parameters such as prey abundance. Changes in this ecosystem 
are also driven by cyclic variability on the scale of years to decades 
(Murphy et al., 2007). Disentangling climate change effects from other 
forms of variability including periodic physical forcing, requires time 
series of data that are typically scarce or non-existent in the 
Southern Ocean (Quetin et al., 2007). The responses of the Southern 
Ocean ecosystem to climate change are likely to be complex. Sea ice 
decreases may actually enhance overall primary production but could 
reduce ice algae production which occurs at a critical time for krill 
larvae (Arrigo and Thomas, 2004). On the other hand, the location of 
upwelling of nutrient-rich deep water may change and result in enhanced 
primary production in areas that are

[[Page 22329]]

otherwise unfavorable to krill (Prezelin et al., 2000).
    The problems in assessing the relatively ``simple'' Southern Ocean 
illustrate the huge problems involved in predicting future changes in 
dynamic ecosystems, on scales that range from eddies and fronts to 
entire ocean basins. Ecosystem models are crude at best. Full ecosystem 
models involve innumerable parameters, yet data to quantify these--let 
alone interactions among them--frequently do not exist.
    The second IWC climate change workshop (IWC, 2010c) noted that data 
sets for use in assessing impact and modeling the effects of climate 
change must have: extensive duration (20-30 years or more of 
information); good temporal resolution to capture variability on inter-
annual and longer scales; and sufficient spatial scale. Although long-
term studies of humpback whales exist in various locations in both 
hemispheres, these are often compromised by issues such as sampling 
bias, data gaps, and inconsistency of methods; furthermore, parallel 
data of sufficient resolution on environmental variables are often 
unavailable. The caveat above regarding the difficulty of disentangling 
climate change effects from other variables applies equally to 
determining the reasons for any observed changes in demographic 
parameters of humpback whales.
    It is instructive to compare the conclusions of the two IWC climate 
change workshops, separated as they were by more than a decade. The 
report of the 1996 workshop (IWC, 1997) notes that: ``. . . given the 
uncertainties in modeling climate change at a suitable scale and thus 
modeling effects on biological processes . . . at present it is not 
possible to model in a predictive manner the effects of climate change 
on cetacean populations.'' Thirteen years later, the second workshop 
came to much the same conclusion (IWC, 2010c), finding that: ``. . . 
improvements in climate models, as well as models that relate 
environmental indices to whale demographics and distribution had [sic] 
occurred. However, all models remain subject to considerable 
uncertainty.''
    The BRT assigned climate change a low threat level to all Southern 
Hemisphere populations based on current impacts to the populations. The 
threat posed by climate change to Northern Hemisphere humpback whale 
populations is very uncertain, but the BRT thought it unlikely that 
climate change was a major extinction risk factor. Melting and receding 
ice sheets may open more feeding habitat for humpback whales in the 
Northern Hemisphere. However, humpback whales in the Northern 
Hemisphere do not feed primarily in Arctic waters (which are likely to 
be the most significantly altered by climate change), and the extent to 
which Arctic habitats may change to support aggregations of prey sought 
by humpback whales is unknown.
    Overall, it is clear that humpback whales worldwide have exhibited 
considerable resilience despite a whaling history that removed the 
great majority of animals from most populations. This resilience, 
together with the species' flexibility in diet and apparent plasticity 
in its distribution, provides some optimism that humpback whales can 
adapt to significant environmental changes wrought by global warming. 
Although we cannot predict how climate change may affect humpback 
whales in the long term, at present most studied populations appear to 
be recovering well, and it seems very unlikely that any population will 
face extinction as a result of climate issues within the foreseeable 
future. At this time, the record does not support a conclusion that 
climate change is likely to influence extinction risk to humpback 
whales in the foreseeable future.

West Indies DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Human population growth and associated coastal development 
represent potential threats to this DPS in certain areas of the West 
Indies, as well as in regions of high human population density in the 
high-latitude feeding range. The major breeding habitats of Silver and 
Navidad Banks are sufficiently remote from land that direct human 
impact is for the most part unlikely. The largest concentration of 
humpback whales in a West Indies habitat that is adjacent to the coast 
occurs in Saman[aacute] Bay, Dominican Republic (Mattila et al., 1994). 
There, tourism has spurred an increase in coastal development, which 
has presumably introduced a rise in runoff and effluent discharge into 
the waters of the bay. To date, there is no evidence of observable 
impact on the humpback whales that visit the region, but no studies 
have been conducted; that the whales do not feed in these tropical 
waters likely decreases their risk from such point source pollution.
    As noted above, although whales are found elsewhere in the West 
Indies, densities outside Dominican Republic waters are relatively low. 
Much of the additional habitat is in the waters of small islands in the 
Leeward and Windward groups, where any coastal runoff is likely to be 
effectively dispersed by highly dynamic water movements driven by 
frequently strong trade winds.
    In some feeding grounds, coastal runoff, vessel traffic and other 
human activities represent a potential threat to humpback whales from 
this DPS. This is likely to be most pronounced off the Mid-Atlantic and 
northeastern United States, and least relevant in remote offshore areas 
such as Greenland, Labrador and the Barents Sea. A study of 
contaminants in humpback whales from the Gulf of Maine found elevated 
levels of polychlorinated biphenyls (PCBs), polybrominated diphenyl 
ethers (PBDEs), and chlordanes (Elfes et al., 2010), although the 
authors concluded that these likely did not represent a conservation 
concern.
    Extensive oil and gas development and extraction occur in the 
southern portion of the humpback whale's West Indies range, in the Gulf 
of Paria off Venezuela, but nothing is known of the impacts of this on 
the whales (Swartz et al., 2003). Energy exploration and development in 
this area are expected to increase.
    The best documented UME for humpback whales attributable to disease 
occurred in 1987-1988 in the North Atlantic, when at least 14 mackerel-
feeding humpback whales died of saxitoxin poisoning (a neurotoxin 
produced by some dinoglagellate and cyanobacteria species) in Cape Cod, 
Massachusetts (Geraci et al., 1989). The whales subsequently stranded 
or were recovered in the vicinity of Cape Cod Bay and Nantucket Sound, 
and it is highly likely that other unrecorded mortalities occurred 
during this event. Such events have been linked to increased coastal 
runoff. During the first 6 months of 1990, seven dead juvenile (7.6 to 
9.1 m long) humpback whales stranded between North Carolina and New 
Jersey. The significance of these strandings is unknown.
    Additional UMEs occurred in the Gulf of Maine in 2003 (12-15 dead 
humpback whales on Georges Bank), 2005 (7 in New England), and 2006-7 
(minimum of 21 whales), with no cause yet determined but HABs 
potentially implicated (Gulland, 2006; Waring et al., 2009). In the 
Gulf of Maine in 2003, a few sampled individuals among 16 humpback 
whale carcasses were found with saxitoxin and domoic acid (produced by 
certain species of diatoms, a different type of algae (Gulland, 2006)). 
The BRT discussed the possible

[[Page 22330]]

levels of unobserved mortality that may be resulting from HABs and 
determined that, as the West Indies population had been affected by 
HABs in the past, it is likely experiencing a higher level of HAB-
related mortality than is detected.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Subsistence hunting in the North Atlantic occurs in Greenland and 
the island of Bequia in St. Vincent and the Grenadines in the Lesser 
Antilles (Reeves, 2002). Greenland began hunting humpback whales before 
1780 (Reeves, 2002). As the take of bowhead whales decreased between 
the years 1750 and 1850, humpback whales became a more frequent target 
(Reeves, 2002). Beginning in 1986, the IWC has not granted any catch 
limit for humpback whales to Denmark on behalf of Greenland, though 
Greenland reported 14 infractions over the period 1988-2006. In 2010, a 
catch limit was reinstated, and 27 humpbacks were killed between 2010 
and 2012. In 1986, St. Vincent and the Grenadines, on behalf of the 
native community of Bequia, asked for a humpback catch limit from the 
IWC, based on its history of artisanal whaling in the community and the 
small number of whales taken (Reeves, 2002). Bequia currently retains 
an IWC ``block'' catch limit of up to 24 whales over a 6-year period 
(2013-2018) (IWC, 2012); they took 4 whales in 2013. While this 
subsistence hunting kills some West Indies DPS humpback whales in their 
breeding and feeding grounds, it is not likely contributing 
significantly to extinction risk of this DPS.
    Humpback whales represent a major attraction for tourists in many 
parts of the world, and in the West Indies their presence supports a 
large seasonal whale-watching industry in Saman[aacute] Bay (Dominican 
Republic). Although humpback whales can become remarkably habituated to 
ecotourism-based vessel traffic, whale-watching excursions have the 
potential to disturb or even injure animals. On feeding grounds such as 
the Gulf of Maine, where a large whale-watching industry exists, the 
extreme reaction of habitat displacement has not been observed; this 
may partly be due to the existence of some guidelines for the operation 
of whale-watching tours, as well as the fact that the whales are tied 
to specific areas by a key resource (i.e., food). Since whales do not 
eat while in sub-tropical waters in winter, they are theoretically far 
less constrained in their choice of habitat; consequently, if the 
whales are faced with high enough pressures from noise or other 
disturbance, they might be able to leave one breeding area and move to 
another.
    It is not clear whether recent anecdotal reports linking a decline 
in humpback whale abundance in Saman[aacute] Bay with increased cruise 
ship traffic are valid, but the potential exists to drive whales out of 
a breeding ground. The large number of whale-watching vessels and 
increasing presence of cruise ships in Saman[aacute] Bay suggest that 
it is very important to assess the effect of this traffic on the 
behavior and habitat use of the whales there.
    Currently, disturbance from whale watching is probably not a major 
concern for Silver Bank. Although a small number of dive boats operate 
``swim-with-whales'' tours there, their activities are regulated by the 
Dominican Republic government, and are limited to a very small section 
of the available habitat. There is currently no commercial or 
recreational activity on Navidad Bank. With the exception of the Gulf 
of Maine, there is minimal utilization of humpback whales for whale-
watching or ecotourism elsewhere in the North Atlantic.
    This DPS is exposed to some scientific research activities in 
waters off the United States, Canada, and West Indies, but at 
relatively low levels. Adverse population effects from research 
activities have not been identified, and overall impact is expected to 
be low and stable.
    It is unlikely that overutilization is contributing to the 
extinction risk of the West Indies DPS.
C. Disease or Predation
    There are no recent studies of disease in this population, but also 
no indication that it is a major risk.
    A study of apparent killer whale attacks in North Atlantic humpback 
whales found scarring rates ranging from 8.1 percent in Norwegian 
waters to 22.1 percent off western Greenland; scarring rates among 
whales observed in the West Indies ranged from 12.3 percent to 15.3 
percent (Wade et al., 2007). It is clear that most killer whale attacks 
occur on first-year calves prior to arrival in high-latitudes (Wade et 
al., 2007). However, this is not regarded as a serious threat to 
population growth.
D. Inadequacy of Existing Regulatory Mechanisms
    A moratorium on oil and gas exploration has been in place in the 
Mid-Atlantic region since the early 1980s. In March 2010, President 
Barack Obama announced plans to open the Mid-Atlantic and South 
Atlantic planning areas to oil and gas exploration. The Federal 
Government had scheduled a lease sale offshore of Virginia, to take 
place in 2011. These lease sale plans were cancelled in May 2010 
following the Deepwater Horizon oil spill in the Gulf of Mexico. In 
December 2010, the Secretary of the Interior announced a ban on 
drilling in Federal waters off the Atlantic coast through 2017. While 
this ban remains in place, the Bureau of Ocean Energy Management is in 
the process of issuing a final programmatic environmental impact 
statement on possible geologic and geophysical activities along the 
Atlantic Outer Continental Shelf (OCS) from Delaware to midway down 
Florida's east coast. The PEIS considers the potential acoustic and 
other impacts of these activities on marine mammals. These activities 
will provide new data for the next 5-year OCS oil and gas program for 
the South and Mid-Atlantic OCS and for possible oil and gas leasing in 
the 2017-2022 period.
    In Nova Scotia, oil and gas exploration and development began in 
1967. Canadian government estimates show that Nova Scotia's oil and gas 
resource potential is significant. In Nova Scotia, there are currently 
two producing offshore natural gas projects, the Sable Offshore Energy 
Project SOEP and Deep Panuke. In 1988, Canada implemented a moratorium 
on oil and gas development on Georges Bank, to the southwest of Nova 
Scotia. In 2010, Canada extended the moratorium, which was set to 
expire at the end of 2012, until December 31, 2015.
    Silver Bank, Navidad Bank, and portions of Saman[aacute] Bay have 
been designated by the Dominican Republic as a humpback whale sanctuary 
(Hoyt, 2013).
    Whalers from the St. Vincent and the Grenadines island of Bequia 
have a quota from the IWC; most recently, Bequia was given a ``block'' 
quota of up to 24 whales over a six-year period (2013-2018) (IWC, 
2012). The Scientific Committee of the IWC has determined that the 
allowed quota would have no impact on the growth rate of this 
population (IWC, 2012).
    As noted above, whale-watching activities in the Silver Bank are 
regulated by the Dominican Republic government, and there is currently 
no commercial or recreational activity on Navidad Bank.
    Under the authority of the ESA and the MMPA, we have issued 
regulations such as the NMFS right whale ship strike regulations in the 
U.S. North Atlantic and other regional or local maritime speed zones, 
and these help reduce the threat of vessel collisions involving 
humpback whales. The ship

[[Page 22331]]

collision reduction rule established regulations to limit vessel speeds 
to no more than 10 knots (18.5 km/hr), applicable to all vessels 65 
feet (19.8m) or greater in length in certain locations and at certain 
times of the year along the east coast of the U.S. Atlantic seaboard 
(73 FR 60173; October 10, 2008).
    In 1999, NMFS and the U.S. Coast Guard established two Mandatory 
Ship Reporting systems aimed at reducing ship strikes of North Atlantic 
right whales. When ships greater than 300 gross tons enter two key 
right whale habitats--one off the northeast United States and one off 
the southeast United States--they are required to report to a shore-
based station. In return, ships receive a message about whales, their 
vulnerability to ship strikes, precautionary measures the ship can take 
to avoid hitting a whale, and locations of recent sightings. While 
these systems were designed to protect right whales specifically, they 
are expected to also reduce the risk of ship strikes to other large 
whales, including humpback whales (NMFS, 2008).
    On February 18, 2005, the U.S. Coast Guard (USCG) announced a Port 
Access Route Study (PARS) of Potential Vessel Routing Measures to 
Reduce Vessel Strikes of North Atlantic Right Whales (70 FR 8312). 
Potential vessel routing measures were analyzed and considered to 
adjust existing vessel routing measures in the northern region of the 
Atlantic Coast, which included Cape Cod Bay, the area off Race Point at 
the northern end of Cape Cod, and the Great South Channel. As a result 
of this information, we recommended realigning and amending the 
location and size of the western portion of the TSS in the approach to 
Boston, Massachusetts. The TSS was revised in 2007, and the new 
configuration appeared on nautical charts soon thereafter.
    On November 19, 2007, the USCG announced a second PARS to Analyze 
Potential Vessel Routing Measures to Reduce Vessel Strikes of North 
Atlantic Right Whales while also Minimizing Adverse Effects on Vessel 
Operations (72 FR 64968). The study area included approaches to Boston, 
MA, specifically, a northern right whale critical habitat in the area 
east and south of Cape Cod, MA, and the Great South Channel, including 
Georges Bank out to the exclusive economic zone boundary. In the second 
PARS, the USCG recommended establishing a seasonal Area to be Avoided 
(ATBA) and amending the southeastern portion of the TSS to make it 
uniform throughout its length. On behalf of the United States, the USCG 
submitted a series of proposals to the IMO (see International Maritime 
Organization discussion above) to modify the TSS and to establish an 
ATBA, which were subsequently endorsed by the IMO (Silber et al., 2012) 
and as described in the IMO's publication, ``Ships' Routing'' 2008. In 
2009, the TSS was revised and the ATBA was established. This was 
followed by a notice in the Federal Register announcing these changes 
(75 FR 77529; December 13, 2010) and NMFS added the changes to 
applicable nautical charts. While the measures are designed 
specifically for the North Atlantic right whale, they are expected to 
benefit humpback whales co-occurring in these areas.
    In 2007, a program of auto-detection buoys and real-time whale 
vocalization detection information was incorporated into the Boston TSS 
as mitigation for liquefied natural gas (LNG) ship strike risk, 
primarily as a result of an ESA Section 7 consultation with the 
Maritime Administration. This program, stipulated as a condition of the 
consultation, was designed to reduce the threat of vessel collisions 
with right whales and other listed large whale species, including 
humpback whales in and around the boundaries of Stellwagen Bank 
National Marine Sanctuary. When right whales are auto-detected in the 
vicinity, LNG vessels are required to travel at speeds of 10 knots or 
less, a measure that almost certainly reduces the likelihood of vessel 
strikes of humpback whales occurring in the area as well.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    The largest potential threats to the West Indies DPS are 
entanglement in fishing gear and ship strikes; these occur primarily in 
the feeding grounds, with some documented in the mid-Atlantic U.S. 
migratory grounds. There are no reliable estimates of entanglement or 
ship-strike mortalities for most of the North Atlantic. During the 
period 2003-2007, the minimum annual rate of human-caused mortality and 
serious injury (from both entanglements and ship collisions) for the 
Gulf of Maine feeding population averaged 4.4 animals per year (Waring 
et al., 2009). Off Newfoundland, an average of 50 humpback whale 
entanglements (range 26-66) was reported annually between 1979 and 1988 
(Lien et al., 1988); another 84 were reported entangled in either 
Newfoundland or Labrador from 2000-2006 (Waring et al., 2009). Not all 
entanglements result in mortality (Waring et al., 2009). However, all 
of these figures are likely to be underestimates, as not all 
entanglements are observed. A study of entanglement-related scarring on 
the caudal peduncle of 134 individual humpback whales in the Gulf of 
Maine suggested that between 48 percent and 65 percent had experienced 
entanglements (Robbins and Mattila, 2001).
    Ship strike injuries were identified for 8 percent (10 of 123) of 
dead stranded humpback whales between 1975-1996 along the U.S. east 
coast, 25 percent (9 of 36) of which were along mid-Atlantic and 
southeast states (south of the Gulf of Maine) between Delaware Bay and 
Okracoke Island North Carolina (Wiley and Asmutis, 1995). Ship strikes 
made up 4 percent of observed humpback whale mortalities between 2001-
2005 (Nelson et al., 2007) and 7 percent between 2005-2009 (Henry et 
al., 2011) along the U.S. east coast, and the Canadian Maritimes. Among 
strandings along the mid and southeast U.S. coastline during 1975-1996, 
80 percent (8 of 10) of struck whales were considered to be less than 3 
years old based on their length (Laist et al., 2001). This suggests 
that young whales may be disproportionately affected. However, those 
waters are thought to be used preferentially by young animals (Swingle 
et al., 1993; Barco et al., 2002). It should be noted that ship strikes 
do not always produce external injuries and may therefore be 
underestimated among strandings that are not examined for internal 
injuries.
    Underwater noise can potentially affect whale behavior, although 
impacts are unclear. Concerns about effects of noise include behavioral 
disruption, interference with communication, displacement from habitats 
and, in extreme cases, physical damage to hearing (Nowacek et al., 
2007). Singing humpback whales have been observed to lengthen their 
songs in response to low-frequency active sonar (Miller et al., 2000) 
and reduce song duration from distant remote sensing (Risch et al., 
2012). Hatch et al. (2008) conducted a study analyzing commercial 
vessel traffic in the Stellwagen Bank National Marine Sanctuary and its 
effect on ambient noise. This study revealed significantly elevated and 
widespread ambient noise levels due to vessel traffic, but further 
research is needed to determine the direct impacts to marine mammals.
    Because of the low level of human activity on Silver and Navidad 
Banks, noise is currently not a concern in this area. Saman[aacute] 
Bay, however, already has much vessel activity and therefore has the 
potential for considerable impact on whales from noise. Noise sources 
include whale-watching vessels, which approach whales closely and thus

[[Page 22332]]

presumably create a loud acoustic environment in close proximity to the 
animals, and cruise ships, which may be more distant but whose size 
guarantees that, at certain frequencies, noise levels in the bay will 
be very high. There are also additional sources in the form of 
container ships or other commercial vessels that enter the bay 
periodically. Underwater noise levels are expected to increase.
    The BRT considered offshore aquaculture to be a low, but 
increasing, threat to this DPS and competition with fisheries a low 
threat to this DPS.
    Overall population level effects from global climate change for 
this DPS are not known; nonetheless, any potential impacts resulting 
from this threat will almost certainly increase. Currently, climate 
change does not appear to pose a significant threat to the growth of 
this DPS now or in the foreseeable future.
    HABs, vessel collisions, and fishing gear entanglements are likely 
to moderately reduce the population size and/or the growth rate of the 
West Indies DPS. All other threats, with the exception of climate 
change (unknown severity), are considered likely to have no or minor 
impact on population size or the growth rate of this DPS.

Cape Verde Islands/Northwest Africa DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Habitat conditions for this DPS are poorly known. Some members of 
the population use the waters around the Cape Verde Islands for 
breeding and calving, but where the remaining hypothesized fraction 
goes is unknown. In considering the Cape Verde Islands/Northwest Africa 
DPS, it was noted that oil spills occur off West Africa, but these 
levels are thought to be lower than in some other regions and the 
impact of non-catastrophic spills on humpback whales when they are on 
the breeding grounds was not considered significant. The threat of 
energy exploration to the Cape Verde Islands/Northwest Africa 
population was considered low.
    There is little to no information on the impacts of HABs on this 
DPS.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Because the breeding range of this DPS is largely unknown, the 
importance of anthropogenic disturbance (from activities such as whale-
watching, offshore aquaculture, fishing gear entanglements, and 
scientific research) to this DPS is largely unknown. At present, 
threats appear low relative to other populations, but again, much of 
the distribution of individuals from the Cape Verde Islands/Northwest 
Africa DPS is unknown. There is no current or planned commercial 
whaling in this area.
C. Disease or Predation
    There is little to no information on the impacts of disease, 
predation, or parasites on this DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the Cape Verde Islands/
Northwest Africa DPS were identified.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is little to no information on the impacts of vessel 
collisions, climate change, or anthropogenic noise on the Cape Verde 
Islands/Northwest Africa DPS, although each is expected to increase. 
Competition with fisheries and offshore aquaculture were considered low 
threats to this DPS.
    The threats of HABs, disease, parasites, vessel collisions, fishing 
gear entanglements, and climate change to this DPS are unknown. All 
other threats to this DPS are considered likely to have no or minor 
impact on the population size and/or growth rate.

Western North Pacific DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Humpback whales in the Western North Pacific are at some risk of 
habitat loss or curtailment from a range of human activities. 
Confidence in information about, and documentation of, these activities 
is relatively good, except on the unknown breeding grounds included in 
this DPS. Given continued human population growth and economic 
development in most of the Asian region, these threats can be expected 
to increase.
    Coastal development, including shipping, and habitat degradation 
are potential threats along most of the coast of Japan, South Korea and 
China. Organochlorines and mercury are found in relatively high levels 
in most cetaceans along the Asian coast (Simmonds, 2002). Although the 
threat to the health of this DPS is unknown, the accumulation of these 
pollutants can be expected to increase over time.
    The BRT noted that the Sea of Okhotsk currently has a high level of 
energy exploration and development, and these activities are likely to 
expand with little regulation or oversight. The BRT determined that the 
threat posed by energy exploration to the Okinawa/Philippines DPS it 
identified is medium, but noted that there was low certainty regarding 
this since specifics of feeding location (on or off the shelf) are 
unavailable. If feeding activity occurs on the shelf in the Sea of 
Okhotsk, energy exploration in this area could impact what is likely 
one of the most depleted subunits of humpback whales. The threat posed 
by energy exploration to the Second West Pacific DPS identified by the 
BRT was unknown.
    As above, naturally occurring biotoxins from dinoflagellates and 
other organisms are known to exist within the range of this DPS, 
although known humpback whale deaths attributable to biotoxin exposure 
do not exist in the Pacific. The occurrence of HABs is expected to 
increase with the growth of various types of human-related activities. 
The level of confidence in the predicted increase is moderate.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    There are no proposals for scientific, aboriginal/subsistence or 
commercial hunting of humpback whales in the North Pacific under 
consideration by the IWC at this time. Some degree of illegal, 
unreported or unregulated (IUU) exploitation, including `commercial 
bycatch whaling,' has been documented in both Japan and South Korea 
through genetic identification of whale meat sold in commercial markets 
(Baker et al., 2000; Baker et al., 2006). Genetic monitoring of 
Japanese markets (1993-2009) identified humpback whale as the source of 
17 whale meat products. These are believed to have been killed through 
direct or indirect fisheries entanglement (Steel et al., 2009). In 
Japan and Korea, it is legal to kill and sell any entangled whale as 
long as the take is reported; there is suspicion that this provides an 
incentive for intentional ``entanglements,'' though the level of such 
intentional takes is currently unknown (Lukoschek et al., 2009). Some 
degree of IUU exploitation is also possible in other regions within the 
range of humpback whales in the Western North Pacific DPS, including 
Taiwan and the Philippines, given past histories of whaling. The full 
extent of IUU exploitation is unknown. Official reports of whales taken 
as bycatch entanglement and destined for commercial markets are 
considered to be incomplete (Lukoschek et al., 2009). Some poaching is 
reported to occur in Korean waters and is suspected off Japan (Baker et 
al., 2002; IWC 2005c),

[[Page 22333]]

and for this reason the threat of whaling to the Western North Pacific 
DPS was determined to be medium.
    There is some whale-watching and non-lethal scientific research in 
Japanese waters, primarily in Ogasawara and Okinawa, but this is at low 
levels and not thought to pose a risk to this DPS.
C. Disease or Predation
    The evidence of killer whale attacks on humpback whales in this DPS 
is low (6-8 percent) relative to other North Pacific humpback whales 
(Steiger et al., 2008). Certainty in this information is considered 
moderate and the magnitude is expected to remain stable. There are no 
reports of disease in this DPS and levels of parasitism are unknown. 
Trends in the severity of disease and parasitism are also unknown.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the Western North Pacific DPS 
were identified. A continuing source of potential adverse impacts to 
humpback whales is interactions with vessels, including whale-watching 
and fishing vessels. NMFS issued a final rule (66 FR 29502; May 31, 
2001) effective in 2001 in waters within 200 nautical miles (370 km) of 
Alaska, making it unlawful for a person subject to the jurisdiction of 
the United States to (a) approach within 100 yards (91.4 m) of a 
humpback whale, (b) cause a vessel or other object to approach within 
100 yards (91.4 m) of a humpback whale or (c) disrupt the normal 
behavior or prior activity of a whale. Exceptions to this rule include 
approaches permitted by NMFS; vessels which otherwise would be 
restricted in their ability to maneuver; commercial fishing vessels 
legally engaged in fishery activities; and state, local and Federal 
government vessels operating in official duty (50 CFR 224.103(b)). This 
rule provides some protection from vessel strikes to a portion of 
Western North Pacific DPS individuals while in their feeding grounds in 
the Aleutian Islands, though the size and location of the area present 
some challenge to enforcement. Its effectiveness could be improved 
through greater general public awareness of the 100-yard (91.4-m) 
regulation, particularly with regard to ``placing a vessel in path of 
oncoming humpback . . .'' and ``operate at slow safe speed when near a 
humpback whale.''
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    Humpback whales in the Western North Pacific DPS are likely to be 
exposed to relatively high levels of underwater noise resulting from 
human activities that may include commercial and recreational vessel 
traffic, and military activities. Overall population-level effects of 
exposure to underwater noise are not well established, but exposure is 
likely chronic and at relatively high levels. As vessel traffic and 
other activities are expected to increase, the level of this threat is 
expected to increase. The level of confidence in this information is 
moderate.
    The likely range of the Western North Pacific DPS includes some of 
the world's largest centers of human activities and shipping. Although 
reporting of ship strikes is requested in the Annual Progress reports 
to the IWC, reporting by Japan and Korea is likely to be poor. A 
reasonable assumption, although not established, is that shipping 
traffic will increase as global commerce increases; thus, a reasonable 
assumption is that the level of the threat will increase. The threat of 
ship strikes was therefore considered to be medium for the Okinawa/
Philippines portion of this DPS and unknown for the Second West Pacific 
portion of this DPS.
    The BRT discussed the high level of fishing pressure in the region 
occupied by the Okinawa/Philippines population (a small humpback whale 
population). Although specific information on prey abundance and 
competition between whales and fisheries is not known in this area, 
overlap of whales and fisheries has been indicated by the bycatch of 
humpback whales in set-nets in the area. The BRT determined that 
competition with fisheries is a medium threat for this DPS, given the 
high level of fishing and small humpback whale population.
    The Fisheries Agency of Japan considers whales to be likely 
competitors with some fisheries, although direct evidence of these 
interactions is lacking for humpback whales in the region (other than 
net entanglement). Whales along the coast of Japan and Korea are at 
risk of entanglement related mortality in fisheries gear, although 
overall rates of net and rope scarring are similar to other regions of 
the North Pacific (Brownell et al., 2000). The threat of mortality from 
any such entanglement is high, given the incentive for commercial sale 
allowed under Japanese and Korean legislation (Lukoschek et al., 2009). 
The reported number of humpback whale entanglements/deaths has 
increased for Japan since 2001 as a result of improved reporting, 
although the actual number of entanglements may be underrepresented in 
both Japan and Korea (Baker et al., 2006). The level of confidence in 
understanding the minimum magnitude of this threat is medium for the 
Okinawa/Philippines portion of this DPS and low for the Second West 
Pacific portion of this DPS, given the unknown wintering grounds and 
primary migratory corridors.
    Overall population level effects from global climate change are not 
known; nonetheless, any potential impacts resulting from this threat 
will almost certainly increase. The level of confidence in the 
magnitude of this threat is poor.
    In summary, energy development, whaling, competition with 
fisheries, and vessel collisions are considered likely to moderately 
reduce the population size or the growth rate of the Okinawa/
Philippines portion of the DPS, and fishing gear entanglements are 
considered likely to seriously reduce its population size or growth 
rate. Other threats are considered likely to have no or minor impact on 
population size and/or the growth rate, or are unknown, for the Western 
North Pacific DPS. In general, there is great uncertainty about the 
threats facing the Second West Pacific portion of this DPS.

Hawaii DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Other than its Hawaiian Islands breeding area, the Hawaii DPS 
inhabits some of the least populated areas in the United States 
(Alaska) and Canadian (Northern British Columbia) coastal waters. 
Coastal development, which may include such things as port expansion or 
waterfront development, occurs in both the United States and Canada; 
runoff from coastal development in Hawaii and continued human 
population growth are potential threats. Confidence in information 
about, and documentation of, these activities and their impacts is 
moderate. Given continued human population growth in the region, the 
threat can be expected to increase.
    This DPS had the lowest levels of DDTs, PCBs, and PBPEs observed 
for North Pacific humpback whales sampled on all their known feeding 
grounds except Russia, between 2004 and 2006; in particular, levels 
were lower than observed in humpback whales from the U.S. West Coast, 
as well as the North Atlantic's Gulf of Maine (Elfes et al., 2010). The 
levels observed in all areas are considered moderate and not expected 
to have a significant effect on population growth (Elfes et al., 2010). 
Confidence in this

[[Page 22334]]

information is moderate, but the trend is unknown.
    In March 2010, Interior Secretary Salazar and President Obama 
announced a landmark decision to cancel a lease sale scheduled for 2011 
(in the 5.6 million acre block in Bristol Bay, southeastern Bering 
Sea), and to reinstate protection for the region until 2017. However, 
if exploration and drilling were authorized after 2017, it would 
represent a potential threat to this DPS in its feeding grounds.
    Naturally occurring biotoxins from dinoflagellates and other toxins 
exist within the range of this DPS. Although humpback whale mortality 
as a result of exposure has not been documented in this DPS, it has 
been reported from other feeding grounds, so it is considered a 
possibility. HAB occurrence is expected to increase with the growth of 
various types of human- related activities, and with increasing water 
temperatures. The level of confidence in exposure to HABs and in these 
assertions is moderate.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    There are no planned commercial whaling activities in this DPS' 
range; however, modest aboriginal hunting has been proposed in British 
Columbia (Reeves, 2002). Certainty in this information is considered 
relatively high and the magnitude is expected to remain stable.
    This DPS is exposed to whale-watching activities in both its 
feeding and breeding grounds, but at medium (Hawaii and Alaska) to low 
levels (British Columbia). Adverse population effects from whale-
watching have not been documented, and overall impact of whale-watching 
is expected to be low and stable.
    This DPS is exposed to some scientific research activities in both 
U.S. and Canadian waters, but at relatively low levels. Adverse 
population effects from research activities have not been identified, 
and overall impact is expected to be low and stable.
C. Disease or Predation
    Evidence of killer whale attacks (15-20 percent) in the humpback 
whales found in Hawaiian waters is moderate (Steiger et al., 2008) and 
lower for Alaska and Canada. This is not regarded as a serious threat 
to population growth. Shark predation likely occurs as well, although 
evidence suggests the primary targets are the weak and unhealthy. 
Certainty in this information is considered relatively high and the 
magnitude is expected to remain stable.
    There are no known reports of unusual disease or mass mortality 
events for this DPS. Trends may increase slightly in response to other 
stressors, such as warming oceans and other stressors that may 
compromise immune systems.
    Levels of parasitism in this population are not well known, 
although approximately 2/3 of humpback whales in Hawaii show some 
evidence of permanent, raised skin lesions, which may be a reaction to 
an as yet unknown parasite (Mattila and Robbins, 2008). However, there 
is no evidence that these ``bumps'' impact health or reproduction, or 
cause mortality. Trends in the severity of this threat are unknown.
D. Inadequacy of Existing Regulatory Mechanisms
    There has been a moratorium on offshore oil drilling in the waters 
of Northern British Columbia since 1972, but there has also been a 
recent proposal to lift the ban, driven largely by local government 
(British Columbia Energy Plan, 2007). If so, this potential threat 
could increase in this portion of the habitat.
    A continuing source of potential adverse impacts to humpback whales 
is interactions with vessels, including whale-watching and fishing 
vessels. Under the authorities of section 11(f) of the ESA and section 
112(a) of the MMPA, NMFS issued a final rule (66 FR 29502; May 31, 
2001) effective in 2001 in waters within 200 nautical miles (370 km) of 
Alaska, making it unlawful for a person subject to the jurisdiction of 
the United States to (a) approach within 100 yards (91.4 m) of a 
humpback whale, (b) cause a vessel or other object to approach within 
100 yards (91.4 m) of a humpback whale or (c) disrupt the normal 
behavior or prior activity of a whale (50 CFR 224.103(b)). Exceptions 
to this rule include approaches permitted by NMFS; vessels which 
otherwise would be restricted in their ability to maneuver; commercial 
fishing vessels legally engaged in fishery activities; and state, local 
and Federal government vessels operating in official duty. This rule 
provides some protection from vessel strikes to Hawaii DPS individuals 
while in their feeding grounds, though its effectiveness could be 
improved by a greater enforcement presence and greater general public 
awareness of the 100-yard (91.4-m) regulation, particularly with regard 
to ``placing a vessel in path of oncoming humpback . . .'' and 
``operate at slow safe speed when near a humpback whale.''
    Vessel approach regulations are also in place for humpback whales 
in Hawaiian waters (50 CFR 224.103(a)). These are similar to the Alaska 
regulations, with an additional prohibition against operating any 
aircraft within 1,000 feet (300 m) of any humpback whale. The 
regulations were adopted in 1987 under authority of the ESA and later 
amended to delete a provision that was inconsistent with the MMPA. See 
52 FR 44,912 (November 23, 1987); 60 FR 3,775 (January 19, 1995) 
(deleting 223.31(b) as mandated by Section 17 of the MMPA Amendments of 
1994, Public Law 103-238, because the MMPA provided that approach to 
100 yards (91.4 m) is legal, whereas the regulatory provision had 
allowed approach only to within 300 yards (274.3 m) in cow/calf areas).
    As noted above under Section 4(a)(1) Factors Applicable to All 
DPSs, the Hawaiian Islands Humpback Whale National Marine Sanctuary was 
established primarily to provide protections to a key North Pacific 
humpback whale breeding/nursery area, and therefore, it should 
contribute to reducing the extinction risk of the Hawaii DPS of the 
humpback whale. Among the regulations in effect in the sanctuary are 
approach regulations substantially similar to those at 50 CFR 
224.103(a) (See 15 CFR 922.184). Although substantially similar, the 
approach regulations effective in the sanctuary protect humpback whales 
in a narrower geographic range than do the current ESA approach 
regulations. Because these regulations apply only within the sanctuary, 
we seek public comment on whether the sanctuary protections would be 
sufficient for the protection of humpback whales from vessel 
interactions throughout the Hawaiian Islands, recognizing that the 
existing approach regulations at 50 CFR 224.103(a), which were adopted 
under authority of the ESA only, would no longer be applicable and 
would need to be removed if this rule becomes final and the Hawaii DPS 
of humpback whales is not listed under the ESA (See ADDRESSES). 
Commenters should consider the impacts of the Office of National Marine 
Sanctuaries' recent proposal to expand the sanctuary boundaries and 
strengthen the approach provisions (80 FR 16224, 16227, 16238; March 
26, 2015).
    In Canada, humpback whales are managed by the Department of 
Fisheries and Oceans (DFO) and legally protected through the Marine 
Mammal Regulations under the Fisheries Act, 1985. These regulations 
make it an offense to disturb, kill, fish for, move, tag, or mark 
marine mammals (ss. 5, 7,

[[Page 22335]]

11) without a valid license. In 2003, the North Pacific humpback whale 
population status was assessed as ``threatened'' by the Committee on 
the Status of Endangered Wildlife in Canada (COSEWIC), and in 2005 the 
population was listed as ``threatened'' under Canada's Species at Risk 
Act (SARA), affording it legal protection (it is an offense to kill, 
harm, harass, capture or take a listed species (Section 32(1)). The 
population's status was re-assessed as ``special concern'' in 2011 by 
COSEWIC. Following public consultation regarding the reclassification 
of the species, the DFO has referred the assessment of ``special 
concern'' back to COSEWIC for further consideration, and the SARA 
status of North Pacific humpback whale remains unchanged at the 
publication of the 2013 Recovery Strategy (Fisheries and Oceans Canada. 
2013). Should the SARA status of humpback whales remain unchanged, an 
action plan to implement the 2013 recovery strategy will be completed 
within 5 years of its final posting on the Species at Risk Public 
Registry. Hawaii DPS whales should benefit from any protections 
afforded by SARA when they are in British Columbia feeding grounds.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is suspected interaction with the herring fishery in 
Southeast Alaska, but impacts to humpback whales are considered to be 
modest; the level of certainty in this information is moderate and 
currently under study, and impacts are considered stable because the 
herring fishery is regulated. Humpback whales may compete with 
fisheries in British Columbia as well, as they also have a herring 
fishery, as well as a ``krill'' fishery.
    Currently, two modest offshore aquaculture sites are located in 
Hawaii, and their placement overlaps with humpback whale habitat. 
However, there have been no known fatal interactions, and indirect 
impacts from food, waste, or medicines being provided to the cultivated 
species are likely to be low, as humpback whales do not feed in Hawaii. 
The level of certainty in this information is high. However, if these 
and other operations expand to areas of high use by the whales, at a 
minimum they could physically exclude humpback whales from some of 
their preferred habitat. Deep-water, finfish aquaculture in Alaska is 
currently prohibited. However, some shellfish and herring ``pond'' 
aquaculture and salmon hatchery pens exist close to shore. There are no 
known fatal encounters with this type of aquaculture in Alaska; 
however, there are documented cases of humpback whales becoming 
entangled in herring ``pond'' and other aquaculture gear in British 
Columbia (Baird, 2003). There have been proposals to allow finfish 
aquaculture in Alaska, which would increase the threat from this 
activity in this portion of the DPS' range; however, Alaska State 
policy is 100 percent against this. The indirect impacts of aquaculture 
(e.g., on health and abundance of prey from disease or possibly habitat 
disruption from poor siting) are not well known, but the BRT did not 
consider these effects to be substantial and rated aquaculture as a low 
threat. We are unaware of humpback whale entanglement involving 
aquaculture in Hawaii or in Alaska. However, given decreasing catches 
of wild fish stocks, and resulting strong incentives to expand 
aquaculture in Hawaii, the threat to the Hawaii DPS posed by 
aquaculture is likely to increase.
    This DPS is likely exposed to moderate levels of underwater noise 
resulting from human activities, which may include, for example, 
commercial and recreational vessel traffic, pile driving from coastal 
construction, and activities in Naval test ranges. Overall population-
level effects of exposure to underwater noise are not well established, 
but exposure is likely chronic. As vessel traffic and other activities 
are expected to increase, the level of this threat is expected to 
increase. The level of confidence in this information is moderate.
    The range of this DPS includes some centers of human activities in 
both Canadian and U.S. waters. Reports of vessel collisions in Hawaii 
have increased since 2003, when an extensive educational campaign and 
hotline number were initiated; however the percentage of these that 
result in fatality is unknown. Numerous collisions have also been 
reported from Alaska and British Columbia (where shipping traffic has 
increased 200 percent in 20 years) (Neilson et al., 2012). According to 
a summary of Alaska ship strike records, an average of 5 strikes a year 
was reported from 1978-2011 (Neilson et al., 2012). However, effects in 
Alaska may be mitigated by the vessel approach regulations discussed 
above (66 FR 29502; May 31, 2001; 50 CFR 224.103) and by NMFS outreach 
to the cruise ship industry to share information about whale siting 
locations.
    The level of certainty in this information is high. Humpback whale 
carcasses have been reported in many areas of Alaska, but given the 
isolated nature of some of these areas, necropsies are not always 
possible to determine cause of death. In addition, many carcasses 
likely go unreported, thus ship strike numbers should be considered 
minimum estimates. A reasonable assumption is that the level of the 
threat will increase in proportion with increases in global commerce. 
Although 5-10 ship strikes are reported per year in Hawaii and the 
actual number of ship strikes is estimated to be potentially one order 
of magnitude greater than this (Lammers et al., 2003), the BRT still 
considered this threat level to be minimal, given the very large 
population size, fast rate of growth observed in this DPS, the vessel 
approach regulations in Alaska, and NMFS outreach to the cruise ship 
industry.
    Recent studies of characteristic wounds and scarring indicate that 
this DPS experiences a high rate of interaction with fishing gear (20-
71 percent), with the highest rates recorded in Southeast Alaska and 
Northern British Columbia (Neilson et al., 2009). However, these rates 
represent only survivors. Fatal entanglements of humpback whales in 
fishing gear have been reported in all areas, but, given the isolated 
nature of much of their range, observed fatalities are almost certainly 
under-reported and should be considered minimum estimates. Recent 
studies in another humpback whale feeding ground, which has similar 
levels of scarring, estimate that the actual annual mortality rate from 
entanglement may be as high as 3.7 percent (Angliss and Outlaw, 2008). 
There is a high level of certainty with regard to this information. The 
threat is considered to be medium.
    Overall population level effects from global climate change are not 
known; nonetheless, any potential impacts resulting from this threat 
will almost certainly increase. Climate change was not considered to be 
a major risk to this DPS currently, however. The level of confidence in 
the magnitude of this threat is low.
    In summary, fishing gear entanglement is considered to be a medium 
threat to the Hawaii DPS. All other threats are considered likely to 
have no or minor impact on population size and/or the growth rate or 
are unknown but assumed to be minor (based largely on the current 
abundance and population growth trend) for the Hawaii DPS.

[[Page 22336]]

Mexico DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Breeding locations used by the Mexico DPS (and migratory routes to 
get to aggregation areas) are adjacent to large human population 
centers. The DPS may, therefore, be exposed to adverse effects from a 
number of human activities, including fishing activities (possible 
competition with fisheries), effluent and runoff from human population 
centers as coastal development increases, activities associated with 
oil and gas development, and a great deal of vessel traffic.
    Southern California humpback whales were found to have the highest 
levels of DDT, PCBs, and PBDEs of all North Pacific humpback whales 
sampled on their feeding grounds (Elfes et al., 2010). The DDT levels 
detected were greater than those found in the typically more 
contaminated Gulf of Maine humpback whales, possibly due to the 
historical dumping of DDT off Palos Verdes Peninsula (Elfes et al., 
2010). It is not possible to state unequivocally if population level 
impacts occur as a result of these contaminant loads, but Elfes et al. 
(2010) suggested the levels found in humpback whales are unlikely to 
have a significant impact on their persistence as a population.
    There are currently numerous active oil and energy leases and 
offshore oil rigs off the U.S. west coast. Offshore LNG terminals have 
been proposed for California and Baja California. The feeding grounds 
for this DPS are therefore an active area with regard to energy 
exploration and development. However, there are no plans at present to 
open the West Coast to further drilling. Alternative energies, such as 
wind and wave energy, may be developed in the future in this region. 
Currently, the threat posed to this DPS by energy exploration and 
development is low, and is considered stable.
    Naturally occurring biotoxins from dinoflagellates and other 
organisms are known to exist within the range of this DPS, though there 
are no records of known humpback whale deaths attributable to biotoxin 
exposure in the Pacific. The occurrence of HABs is expected to increase 
with nutrient runoff associated with the growth of various types of 
human-related activities. The level of certainty in the impacts of 
exposure to HABs is moderate.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    No whaling currently occurs in this DPS' range.
    The Mexico humpback whale DPS is exposed to some whale watching 
activities in both U.S. and Mexican waters, but at low levels. Adverse 
effects from whale watching have not been documented, and overall 
impact of whale watching is expected to be low and stable.
    This DPS is exposed to some scientific research activities in both 
U.S. and Mexican waters, but at relatively low levels. Adverse effects 
from research activities have not been identified, and overall impact 
is expected to be low and stable.
C. Disease or Predation
    With regard to natural mortality of individuals in the Mexico DPS, 
humpback whales in the California feeding area had a higher incidence 
of rake marks attributed to killer whale attacks (20 percent) than in 
other feeding areas (Steiger et al., 2008). The BRT noted that 44 
percent of all flukes photographed from the Mexico humpback whale DPS 
are scarred with killer whale tooth rakes. Most of the attacks are 
thought to occur on calves in breeding/calving areas, and levels 
observed in the California group likely result from a propensity for 
killer whale attacks in Mexican breeding areas (Steiger et al., 2008). 
Though a factor in the ensured longevity of this DPS, it does not 
appear to be preventing population recovery (Steiger et al., 2008). The 
threat of predation was therefore ranked as low or unknown for all 
DPSs.
    There is little to no information on the impacts of disease or 
parasites on the Mexico DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    Under Mexican law, all marine mammals are listed as ``species at 
risk'' and are protected under the General Wildlife Law (2000). 
Amendments to the General Wildlife Law to address impacts to whales by 
humans include: Areas of refuge for aquatic species; critical habitat 
being extended to aquatic species (including cetaceans); prohibition of 
the import and export of marine mammals for commercial purposes 
(enacted in 2005); and protocol for stranded marine mammals (2011). 
Mexican Standard 131 on whale watching includes avoidance distances and 
speeds, limits on number of boats, and protection from noise (no echo 
sounders). Two protection programs for humpback whales (regional 
programs for protection) have been proposed for the regions of Los 
Cabos and Banderas Bay (Bahia de Banderas).
    NMFS issued a final rule (66 FR 29502; May 31, 2001) effective in 
2001 in waters within 200 nautical miles (370 km) of Alaska, making it 
unlawful for a person subject to the jurisdiction of the United States 
to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) 
cause a vessel or other object to approach within 100 yards (91.4 m) of 
a humpback whale, or (c) disrupt the normal behavior or prior activity 
of a whale. Exceptions to this rule include approaches permitted by 
NMFS; vessels which otherwise would be restricted in their ability to 
maneuver; commercial fishing vessels legally engaged in fishery 
activities; state, local and Federal government vessels operating in 
official duty; and the rights of Alaska Natives. As is true for the 
Hawaii DPS, this rule provides some protection from vessel strikes to 
Mexico DPS individuals while in their feeding grounds.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    This DPS is likely exposed to relatively high levels of underwater 
noise resulting from human activities. These may include, for example, 
commercial and recreational vessel traffic, and activities in U.S. Navy 
test ranges. The overall population-level effects of exposure to 
underwater noise are not well-established, but exposure is likely 
chronic and at relatively high levels. As vessel traffic and other 
activities are expected to increase, the level of this threat is 
expected to increase. The level of confidence in this information is 
moderate.
    Of the 17 records of stranded whales in Washington, Oregon, and 
California in the NMFS stranding database, three involved fishery 
interactions, two were attributed to vessel strikes, and in five cases 
the cause of death could not be determined (Carretta et al., 2010). 
Specifically, between 2004 and 2008, 14 humpback whales were reported 
seriously injured in commercial fisheries offshore of California and 
two were reported dead. The proportion of these that represent the 
Mexican breeding population is unknown. Fishing gear involved included 
gillnet, pot, and trap gear (Carretta et al., 2010). Between 2004 and 
2008, there were two humpback whale mortalities resulting from ship 
strikes reported and eight ship strike attributed injuries for 
unidentified whales in the California-Oregon-Washington stock as 
defined by NMFS, and some of these may have

[[Page 22337]]

been humpback whales (Carretta et al., 2010). The Mexico DPS is known 
to also use Alaska and British Columbia waters for feeding 
(Calambokidis et al., 2008). Numerous collisions have been reported 
from Alaska and British Columbia (where shipping traffic has increased 
200 percent in 20 years) (Neilson et al., 2012). According to a summary 
of Alaska ship strike records, an average of 5 strikes a year was 
reported from 1978-2011 (Neilson et al., 2012). However, effects in 
Alaska may be mitigated by the vessel approach regulations discussed 
above (66 FR 29502; May 31, 2001) and by NMFS outreach to the cruise 
ship industry to share information about whale siting locations.
    Overall population level effects from global climate change are not 
known; nonetheless, any potential impacts resulting from this threat 
will almost certainly increase. The BRT concluded that currently 
climate change is not a risk to the DPS, but the level of confidence in 
the magnitude of this threat is poor.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
Mexico DPS, with the following exception: Fishing gear entanglements 
are considered likely to moderately reduce the population size or the 
growth rate of the Mexico DPS.

Central America DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Human population growth and associated coastal development, 
including port expansions and the presence of water desalinization 
plants, are some of the potential threats to the Central America DPS. 
The presumed migratory route for this DPS lies in the coastal waters 
off Mexico and includes numerous large and growing human population 
centers from Central America north along the Mexico and U.S. coasts. 
The California and Oregon feeding grounds are the most ``urban'' of all 
the North Pacific humpback whale feeding grounds, resulting in 
relatively constant anthropogenic exposure for the individuals of this 
DPS. However, the high degree of coastal development is not preventing 
the increase of humpback whales in this area, and it is considered to 
be a low level threat.
    Associated with this proximity to urban areas is a high level of 
exposure to man-made contaminants. Elevated levels of DDTs, PCBs, and 
PBPEs have been observed in ``southern California'' humpback whales; 
levels were higher than observed in humpback whales from the North 
Atlantic's Gulf of Maine feeding ground (Elfes et al., 2010). These 
levels may be linked to historical dumping of DDTs off the Palos Verdes 
Peninsula, CA (Elfes et al., 2010). However, the levels observed are 
not expected to have a significant effect on population growth (Elfes 
et al., 2010). DDT and PCB levels are likely to decrease in feeding 
areas because use of these chemicals has been banned in the United 
States, but PBDEs may still be increasing.
    Energy exploration and development activities are present in this 
DPS' habitat range. There are currently numerous active oil and energy 
leases and offshore oil rigs off the U.S. west coast. Offshore LNG 
terminals have been proposed for California and Baja California. The 
feeding grounds for this DPS are therefore an active area with regard 
to energy exploration and development. However, there are no plans at 
present to open the West Coast to further drilling. Alternative 
energies, such as wind and wave energy, may be developed in the future 
in this region. Currently, the threat posed to this population by 
energy exploration and development is low, and is considered stable.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Whale-watching tourism and scientific research occur, at relatively 
low levels, on both the feeding and breeding grounds of the Central 
America DPS as well as along the migratory route. Whale-watching is 
highly regulated in U.S. waters. Many Central American countries also 
have whale-watching guidelines and regulations in the breeding ground 
of this population. Whale-watching is therefore not considered a threat 
to this population. Scientific research activities such as observing, 
collecting biopsies, photographing, and recording underwater 
vocalizations of whales occurs throughout this DPS' range, though no 
adverse effects from these events have been recorded.
    No whaling currently occurs in this DPS' range.
C. Disease or Predation
    There is little information on the impacts of disease, parasites or 
algal blooms on the Central America DPS. HABs of dinoflagellates and 
diatoms exist within the feeding range of this DPS, but there have been 
no records of humpback whale deaths as a result of exposure. The 
occurrence of HABs is expected to increase with the growth of various 
types of human-related activities but does not pose a threat to this 
population currently.
    Though the occurrence and impacts of predation on humpback whales 
is not well understood, some evidence of killer whale and shark attacks 
exists for this DPS. Evidence of killer whale attacks is relatively 
high in California waters, with 20 percent of humpback whales showing 
scars from previous attacks (Steiger et al., 2008). Scars from attacks 
are believed to have originated in the winter when whales are in 
Mexican and Central American waters. However, this is not regarded as a 
serious threat to population growth. Shark predation likely occurs as 
well, though it is not known to what degree; it does not appear to be 
adversely impacting this DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the Central America DPS were 
identified.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is no evidence to suggest that competition with fisheries 
poses a threat to this DPS. Humpback whales in southern and central 
California feed on small schooling fish, including sardine, anchovy, 
and herring, all of which are commercially harvested species. In 
addition, they also feed on krill, which are not harvested off the U.S. 
west coast. Humpback whales are known to be foraging generalists. 
Although their piscivorous prey is subject to naturally- and 
anthropogenically-mediated fluctuations in abundance, there is no 
indication that fishery-related takes are substantially decreasing 
their food supply.
    This DPS is likely exposed to relatively high levels of underwater 
noise resulting from human activities, including commercial and 
recreational vessel traffic, and activities in U.S. Navy test ranges. 
Exposure is likely chronic and at relatively high levels. It is not 
known if exposure to underwater noise affects humpback whale 
populations, and this threat does not appear to be significantly 
impacting current population growth.
    Vessel collisions and entanglement in fishing gear pose the 
greatest threat to this DPS. Especially high levels of large vessel 
traffic are found in this DPS' range off Panama, southern California, 
and San Francisco. Several records exist of ships striking humpback 
whales (Carretta et al., 2008; Douglas et al., 2008), and it is likely 
that not all

[[Page 22338]]

incidents are reported. Two deaths of humpback whales were attributed 
to ship strikes along the U.S. West Coast in 2004-2008 (Carretta et 
al., 2010). Ship strikes are probably underreported, and the level of 
associated mortality is also likely higher than the observed 
mortalities. Vessel collisions were determined to pose a medium risk 
(level 2) to this DPS, especially given the small population size. 
Shipping traffic will probably increase as global commerce increases; 
thus, a reasonable assumption is that the level of ship strikes will 
also increase.
    Between 2004 and 2008, 18 humpback whale entanglements in 
commercial fishing gear off California, Oregon, and Washington were 
reported (Carretta et al., 2010), although the actual number of 
entanglements may be underreported. Effective fisheries monitoring and 
stranding programs exist in California, but are lacking in Central 
America and much of Mexico. Levels of mortality from entanglement are 
unknown and do vary by region, but entanglement scarring rates indicate 
a significant interaction with fishing gear.
    Currently there is no aquaculture activity on the feeding grounds 
of this DPS, though migrating individuals may encounter some 
aquaculture operations in coastal waters off Mexico. Humpback whales in 
this DPS are not considered to be adversely affected by aquaculture.
    Overall population level effects from global climate change are not 
known; nonetheless, any potential impacts resulting from this threat 
will almost certainly increase. Humpback whales feeding off southern 
and central California have a flexible diet that includes both krill 
and small pelagic fishes. Acidification of the marine environment has 
been documented to impact the physiology and development of krill and 
other calcareous marine organisms, which may reduce their abundance and 
subsequent availability to humpback whales in the future (Kurihara, 
2008). However, the diet flexibility of humpback whales in this region 
may give this DPS some resilience to a climate change effect on their 
prey base compared to Southern Hemisphere humpback whales that have a 
more narrow krill-based diet. Currently, climate change does not pose a 
significant threat to the growth of this DPS.
    In summary, vessel collisions and fishing gear entanglements are 
considered likely to moderately reduce the population size or the 
growth rate of the Central America DPS. All other threats are 
considered likely to have no or minor impact on population size and/or 
the growth rate, or are unknown for the Central America DPS.

Brazil DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Human population growth and associated coastal development 
represent potential threats to coastal populations of humpback whales. 
These can take many forms, including chemical pollution, increase in 
ship traffic and underwater noise levels. The coast of Brazil has 
experienced various levels of human development within the range of 
humpback whales. These are of greater intensity along the northeastern 
coast of the country (between 5[deg] and 12[deg] S), where large human 
settlements are found (the three main cities--Salvador, Recife and 
Natal--have 1-3 million inhabitants and have observed population 
increases of 3 percent per year since the early 1970s) (Instituto 
Brasileiro de Geografia e Estat[iacute]stica, 2010). Such population 
growth has resulted in a substantial rise in effluent discharge in 
coastal areas used by humpback whales during the breeding season. The 
stretch of the coast where the largest concentration of humpback whales 
is found (Abrolhos Bank, 16[deg]-18[deg] S) has not had the same level 
of human growth and is relatively pristine compared to areas farther to 
the north.
    There is no evidence that human population growth has had any major 
direct impact on western South Atlantic humpback whales. In fact, the 
Brazil DPS has shown strong signs of recovery in the same period in 
which human growth occurred adjacent to the breeding grounds. Shifts in 
habitat use and abundance may have occurred on a local basis, but no 
studies have been conducted to assess these changes. Effects of 
chemical pollution are largely minimized because these whales do not 
feed in the tropical wintering grounds. The feeding grounds of this DPS 
are located in relatively remote offshore areas in the Southern Ocean 
where human activities have been minimal. While potential impacts are 
unknown, they are probably small in these areas. The current threat of 
coastal development to this population was ranked as low, but is 
considered to be increasing.
    The construction of new ports along the coast of Brazil has been 
stimulated by the country's recent economic growth as well as the rapid 
development of the oil and gas industry. Therefore, a resultant 
increase in ship traffic will likely increase the probability of ship 
strikes and possibly result in greater humpback whale mortality off 
Brazil. The threat posed by energy exploration and development was 
ranked low but increasing.
    The effects of contaminants on this population are unknown. The 
occurrence of HABs is expected to increase with increased run-off and 
nutrient input from human-related activities; however, HABs do not pose 
a threat to this population currently.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    A seasonal humpback whale-watching industry exists in some parts of 
the wintering grounds off Brazil. In the Abrolhos Bank, the area of 
greatest humpback whale concentration, whale-watching is usually 
associated with other tourist activities. The Bank contains large coral 
reef formations, and the associated biological diversity makes this 
region an important diving/snorkelling center. Despite great potential, 
expansion of whale-watching in this region is difficult because of poor 
tourism infrastructure and because whales are far away from the coast 
relative to other areas (Cipolotti et al., 2005).
    A more established whale-watching industry operates farther to the 
north, near Praia do Forte and Salvador. Most whale watching tours in 
Bahia State depart from Praia do Forte (Hoyt and In[iacute]guez, 2008). 
In other parts of the humpback wintering grounds (e.g., Ilh[eacute]us, 
Itacar[eacute], Porto Seguro), whale-watching can occur in an 
opportunistic fashion. Often, fishermen are hired to take groups of 
tourists to see whales, but these are unregulated and occasional. 
Because of the relatively small scale, whale-watching activities 
possibly cause limited, if any, impact on the Brazil DPS of the 
humpback whale. This threat is considered low.
    There is currently no commercial whaling in this region.
    This humpback whale DPS is exposed to scientific research 
activities, but adverse effects from research activities have not been 
identified, and overall impact is expected to be low and stable.
C. Disease or Predation
    There are studies of disease in the Brazil DPS of the humpback 
whale, but no indication that it presents a risk to the DPS. Stranded 
whales have shown different types of bone pathologies (Groch et al., 
2005), but the incidence of these pathologies are not well known.
    A recent increase in humpback whale mortality has occurred along 
the coast of Brazil. The number of carcasses seen floating at sea or 
found ashore in 2010

[[Page 22339]]

(96 individuals) was nearly 3 times the average for the period 2002-
2009 (29.5 individuals). Mortalities dropped in 2011 (39), but they 
have increased in subsequent years (47 in 2012; 51 in 2013; 55 to date 
in 2014, with not many more expected for the rest of 2014) (Milton 
Marcondes, Humpback Whale Institute Brazil, pers. comm., 2014). The 
causes for this increased mortality are not well understood and are 
under investigation (Humpback Whale Institute Brazil, unpublished 
data). However, while mortalities are high, they are not unusually 
high. Despite these mortalities, the DPS appears to continue to 
increase in abundance.
    Killer whales appear to be one of the main predators of humpback 
whales, especially of calves and immature individuals (Clapham, 2000). 
While predation can represent an important source of neonatal/juvenile 
mortality (Steiger et al., 2008), no studies have been conducted to 
assess its effects on this DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    Diving with whales is prohibited by Federal law in Brazil, but 
opportunistic whale-watching occurs during diving trips (Morete et al., 
2003). Most whale-watching operations are concentrated within the 
Abrolhos National Park and therefore are highly controlled. The maximum 
number of boats allowed within the park is 15 (Hoyt, 2000).
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    The threats posed by offshore aquaculture and competition with 
fisheries were considered low for the Brazil DPS of humpback whales.
    Entanglements in various types of fishing nets have been increasing 
in the wintering areas (Zerbini and Kotas, 1998), but there is no 
current estimate of mortality. Reports from fishermen indicate that a 
large proportion of entanglements are comprised of calves (Zerbini and 
Kotas, 1998). In the past 20 years, the number of entanglement cases 
observed or reported has increased substantially as has the proportion 
of whales seen in wintering grounds, with evidence (e.g., scars) of 
entanglement in fishing gear (Siciliano, 1997; Groch et al., 2008)). 
Interactions of humpback whales with fisheries have been observed 
throughout the wintering ground, and they seem to be increasing as the 
population grows and re-occupies new or historical habitats. However, 
there is currently no assessment on the proportion of entanglements 
resulting in mortality and no estimates of fishery-related mortality 
for this DPS. The threat of entanglements was considered low but 
increasing.
    Ship collisions are a well-known cause of mortality in humpback 
whales (Laist et al., 2001), but their incidence among humpback whales 
in the Brazil DPS is not well known. Reports of collisions with whales 
have been provided by fishermen and recreational boaters. In addition, 
photographic/physical evidence of ship strikes has been recorded 
throughout the wintering grounds off Brazil (e.g., Marcondes and Engel, 
2009). These events have been increasing and seem to be correlated with 
population recovery, but their conservation implications require 
further studies (Bezamat et al., 2014). In areas of high whale density 
(e.g., the Abrolhos Bank), collisions between whales and fishing boats 
have resulted in permanent damage to the boats. The fate of whales 
involved in these accidents is not known (Andriolo, unpublished data). 
Ship strikes were considered a low, but increasing, threat to this DPS 
of humpback whales.
    The increase in coastal development and ship traffic, the 
construction of new ports and the expansion of offshore oil and gas 
extraction have resulted in a rise of underwater noise levels along the 
breeding range of humpback whales. Concerns about effects of noise 
include disruption of behavior, interference with communication, 
displacement from habitats and, in extreme cases, physical damage to 
hearing (Nowacek et al., 2007). Few studies have been carried out to 
assess whether and how an increase in noise levels has impacted the 
Brazil DPS. Research conducted in Abrolhos Bank (Sousa-Lima and Clark, 
2008; Sousa-Lima and Clark, 2009) showed that the number of singing 
whales diminished in the presence of low-frequency boat noise and that 
singing whales stopped calling and changed direction of movement if the 
sound source was within 7.5km on average. Anthropogenic noise was 
considered a low, but increasing, threat to the Brazil DPS of humpback 
whales.
    Climate change may impact the Brazil DPS of humpback whales in 
multiple ways. Sea level rise, ocean warming and ocean acidification 
may all negatively impact the reef system, which provides shallow, 
protected waters for breeding. Ocean acidification also has a 
documented impact on krill growth and development (Kurihara, 2008), and 
krill is the primary prey item for Southern Hemisphere humpback whales. 
Krill are tightly associated with sea ice (Brierley et al., 1999; 
Brierley et al., 2002), and decreasing sea ice may negatively impact 
krill abundance and/or distribution. Decreases in krill abundance have 
been observed around the Antarctic Peninsula (Atkinson et al., 2004). 
Overall population level effects from global climate change and 
anthropogenic noise are not well known and the threat was ranked low, 
based on the premise that krill would need to be substantially reduced 
in order to put humpback whales at risk of extinction. As discussed 
above under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did 
not think the linkage between climate change and future krill 
production was sufficiently well understood to rate it as moderate or 
high risk. Nonetheless, any potential impacts resulting from these 
threats will almost certainly increase, but not in the foreseeable 
future.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
Brazil DPS.

Gabon/Southwest Africa DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    For humpback whales using the waters of central western Africa, 
expanding offshore hydrocarbon extraction activity now poses an 
increasing threat (Findlay et al., 2006). The degree to which humpback 
whales are affected by offshore hydrocarbon extraction activity is not 
known, but it is believed that long-term exposure to low levels of 
pollutants and noise, as well as the drastic consequences of potential 
oil spills, could have conservation implications.
    The Gulf of Guinea region suffers from pollution and habitat 
degradation, both from major coastal cities (Lagos, Accra, Libreville, 
Porto-Nevo) that dispense raw sewage and untreated toxic waste into the 
marine environment (United Nations Environment Programme, 1999), and 
from unregulated foreign trawling and oil and gas developments (Chidi 
Ibe, 1996). The practice of mining construction materials from the 
near-shore coastal zone (e.g., sand and gravel) is also common in this 
region, which contributes to habitat degradation (Chidi Ibe, 1996). The 
threat of coastal development is considered low, but increasing.
    Certain naturally occurring biotoxins from dinoflagellates and 
other organisms may exist within the range of this DPS, although 
humpback whale deaths as a result of exposure have not been documented 
in this DPS. The occurrence of HABs is expected to increase with the 
growth of various types of human-related activities. The

[[Page 22340]]

level of confidence in the predicted increase is moderate.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    No commercial whaling occurs in this DPS' range.
    A small hunt, not regulated by the IWC, is also thought to exist in 
the Gulf of Guinea at the island of Pagalu (Aguilar, 1985; Reeves, 
2002). No information exists on the fishery since 1975, but as of 1970, 
whales were still being taken in the area. This hunt would affect the 
Gabon/Northwest Africa DPS in the breeding grounds, but we have no 
information to indicate that it contributes significantly to the 
extinction risk of the DPS. If there is an aboriginal hunt at Pagalu, 
it is estimated to be 3 or less individuals per year.
    Whale-watching in the Gulf of Guinea region is small in scale, with 
small humpback whale-watching industries documented in Benin, Gabon, 
S[atilde]o Tom[eacute] and Pr[iacute]ncipe (O'Connor et al., 2009). 
Whale-watching in South Africa is mainly focused on right whales, with 
humpback whales watched opportunistically. Boat-based whale-watching 
has grown 14 percent in the last decade, and is concentrated in the 
western Cape region; South Africa now numbers among the top ten 
destinations for whale-watching worldwide (O'Connor et al., 2009). 
Whale-watching in Namibia is primarily focused on dolphins, and has 
seen 20 percent growth since 2008. The threat posed to this DPS by 
whale-watching is considered low.
    This humpback whale DPS is exposed to scientific research 
activities, but adverse effects from research activities have not been 
identified, and overall impact is expected to be low and stable.
C. Disease or Predation
    There are no reports of disease in this DPS and levels of 
parasitism are unknown. Predation likely occurs, though it is not known 
to what degree but it does not appear to be adversely impacting this 
DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    There are regulations in place for all whale-watching activity in 
South Africa (Carlson, 2007).
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is no known/reported competition with fisheries to the Gabon/
Southwest Africa DPS; this threat is therefore considered low and 
stable. The threat of offshore aquaculture is considered low.
    Certain potential and real effects on cetaceans and other fauna are 
expected to increase due to the growth of industry activities, 
including noise disturbance from seismic surveys (Richardson et al., 
1995). Changes in their behavioral patterns or displacement from 
migratory, mating, and especially important calving and nursing 
habitats could impact reproductive success and calf survival during 
critical stages of development.
    Rapid increases in shipping and port construction throughout the 
Gulf of Guinea (Van Waerebeek et al., 2007) are likely to increase the 
risks of ship strikes for humpback whales. Whales are reported as 
stranding in Benin, with wounds suspected as originating from ship 
strikes (Van Waerebeek et al., 2007). There are no dedicated stranding 
networks in the region, and ship strikes with oil tankers and other 
vessels have not been documented. Collisions with vessels are not 
likely to be a major threat considering the size of the DPS.
    There are entanglement risks for humpback whales in these regions, 
including a growing commercial shrimp industry off Gabon (Walsh et al., 
2000), and an expansion in unregulated fishing by foreign fleets in 
Gulf of Guinea waters (Collins, pers. comm.; Chidi Ibe, 1996; Brashares 
et al., 2004). Entanglement in fishing gear occurs, but it is not 
likely to be a major threat considering the size of the DPS.
    Climate change may impact the Gabon/Southwest Africa DPS of 
humpback whales in multiple ways. Sea level rise, ocean warming and 
ocean acidification may all negatively impact the reef system, which 
provides shallow, protected waters for breeding. Ocean acidification 
also has a documented impact on krill growth and development (Kurihara, 
2008), and krill is the primary prey item for Southern Hemisphere 
humpback whales. Krill are tightly associated with sea ice (Brierley et 
al., 1999; Brierley et al., 2002), and decreasing sea ice may 
negatively impact krill abundance and/or distribution. Decreases in 
krill abundance have been observed around the Antarctic Peninsula 
(Atkinson et al., 2004). Overall population level effects from global 
climate change and anthropogenic noise are not known and the threat was 
ranked low, based on the premise that krill would need to be 
substantially reduced in order to put humpback whales at risk of 
extinction. As discussed above under Section 4(a)(1) Factors Applicable 
to All DPSs, the BRT did not think the linkage between climate change 
and future krill production was sufficiently well understood to rate it 
as moderate or high risk. Nonetheless, any potential impacts resulting 
from these threats will almost certainly increase.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
Gabon/Southwest Africa DPS, with the exception of energy exploration 
posing a moderate threat throughout the west coast of Africa.

Southeast Africa/Madagascar DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Human populations are growing rapidly in coastal areas in 
Madagascar and East Africa, which may contribute, generally, to 
humpback whale habitat degradation and related negative influences.
    Until recently, oil and gas reserves in east Africa were largely 
unexplored. However, recently, a number of offshore seismic oil and gas 
surveys have been conducted in Mozambique, Tanzania, Madagascar and the 
Seychelles. As a result, drilling is now either underway or planned in 
all of these regions (Frynas, 2004; Findlay et al., 2006). As noted 
elsewhere, such activity brings threats of increased underwater noise 
from the exploration and development phases themselves, and increased 
vessel activity; the possibility of an oil spill; possible habitat 
degradation from such things as drill spoils and dredging; and vessel 
collisions. In Madagascar, offshore development has been concentrated 
on the northwest coast; in Mozambique it is concentrated in the 
Mozambique Basin, Zambezi delta region, while development in Tanzania 
has been most focused on coastal Zanzibar. Humpback whales occur 
seasonally in all of these regions.
    Levels of exposure of humpback whales in this region to various 
pollutants are not known, nor is the occurrence of HABs. Trends in the 
extent of this threat likewise are not known.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Whale-watching activities are growing rapidly in waters off 
Mozambique; yet, these are poorly regulated (O'Connor et al., 2009). 
Most of these activities are locally based and involve motorized boats, 
recreational fishing boats, and dive boats. Whale-watching in South 
Africa is mainly focused on right whales, although the industry at St

[[Page 22341]]

Lucia in KwaZulu Natal province is focused on southwestern Indian Ocean 
humpback whales. Recent political instability in Madagascar has limited 
the growth rate of whale-watching activities in this region, although 
growth between 1998-2008 was still estimated at about 15 percent, with 
the main industry focused on humpback whales frequenting the Ile Ste 
Marie/Antongil Bay region, and over 14,000 tourists participating in 
whale watch tours by 10-15 operators in 2008 (O'Connor et al., 2009). 
Whale watch tourism in Mayotte is small-scale, but has expanded 
rapidly, from no industry in 1998 to 10,000 annual whale watchers in 
2008 (O'Connor et al., 2009), with a focus on a range of cetacean 
species. In Mauritius large cetacean watching is a minimal component of 
the whale watch industry and is therefore unlikely to have much impact 
(O'Connor et al., 2009). An industry for watching humpback whales in 
Mauritius commenced in 2008 (Fleming and Jackson, 2011).
    No commercial whaling occurs in this DPS' range. This humpback 
whale DPS is exposed to scientific research activities, but at low 
levels. Adverse effects from research activities have not been 
identified, and overall impact is expected to be low and stable.
C. Disease or Predation
    There is little to no information on the impacts of disease, 
parasites, or predation on this DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    Apparently, there are no local, national, or regional measures in 
place or contemplated to reduce the impact of habitat-related threats.
    There is a voluntary code of conduct for operators of whale-
watching boats in waters off Mozambique, but at present this is poorly 
upheld and no formal regulations or enforcement are currently in place 
(O'Connor et al., 2009). The whale-watching industry off Madagascar has 
recently developed some guidelines for the protection of humpback 
whales, which were passed as legislation in 2000 with local regulations 
for Ile Sainte Marie (Fleming and Jackson, 2011) and Antongil Bay 
(Journal Officiel de la Republique de Madagascar, 2000). In the 
Mascarene Islands, the expanding whale-watching industry in La 
R[eacute]union (3,000 tourists estimated in 2008) is currently 
unregulated. There are regulations in place for all whale-watching 
activity in South Africa (Carlson, 2007).
    Fishing activities are prohibited in localized marine protected 
areas in Mayotte, Moheli (in the Comoros Archipelago), Madagascar 
(northeast coast), Aldabra (under protection as a UNESCO World Heritage 
Site) and the coastal region between Southern Mozambique and South 
Africa, so entanglement in fishing gear should not be a problem in 
these areas.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    Little is known/reported on interaction of humpback whales in this 
DPS with fisheries, nor are there any current or planned offshore 
aquaculture sites in the region. These threats are therefore considered 
low and stable.
    Information regarding fisheries and other activities is limited. 
Kiszka et al. (2009) and Razafindrakoto et al. (2008) provided 
summaries of humpback whale entanglement and strandings based on 
interviews with artisanal fishing communities. Substantial gillnet 
fisheries have been reported in the near-shore waters of the coasts of 
mainland Africa and Madagascar; and to a lesser extent in the Comoros 
Archipelago, Mayotte and Mascarene Islands, where such practices are 
hindered by coral reefs and a steep continental slope bathymetry 
(Kiszka et al., 2009). Stranding reports and observations from Tanzania 
and Mozambique have mostly implicated gillnets, with most Madagascan 
entanglements associated with long-line shark fishing (Razafindrakoto 
et al., 2008). In Mayotte, humpback whales have been observed with 
gillnet remains attached to them (Kiszka et al., 2009), although no 
fatalities have yet been documented. Industrial fishing operations, 
including longlines and drift longlines on fish aggregation devices, 
purse seine and midwater trawling, occur in waters off Mauritius. The 
extent of bycatch and entanglement in these waters is unknown (Kiszka 
et al., 2009). Strandings and bycatch data from 2001-2005 from South 
Africa indicated an estimated 15 humpback whales entangled in shark 
nets (large-mesh gillnets) in KwaZulu Natal province (only one death), 
while nine stranded whales were reported from the south and east coasts 
(IWC, 2002b; IWC, 2003; IWC, 2004b; IWC, 2005b; IWC, 2006b).
    The range of this DPS includes some growing centers of human 
activities. Although there are no known records of ship struck humpback 
whales in this region, the amount of vessel traffic suggests this is 
probably a low-level threat. However, a reasonable assumption is that 
the amount of vessel traffic, and the level of the threat, is likely to 
increase as commercial shipping, recreational boating, and whale-
watching, oil and gas exploration and development, and fishing 
activities increase.
    This DPS is likely exposed to relatively high levels of underwater 
noise resulting from human activities, including, for example, 
commercial and recreational vessel traffic, and activities related to 
oil and gas exploration and development. Overall population-level 
effects of exposure to underwater noise are not well established, but 
exposure is likely chronic and at moderate levels. As vessel traffic 
and other activities are expected to increase, the level of this threat 
is expected to increase. The level of confidence in this information is 
moderate.
    Climate change may impact the Southeast Africa/Madagascar DPS of 
humpback whales in multiple ways. Sea level rise, ocean warming and 
ocean acidification may all negatively impact the reef system, which 
provides shallow, protected waters for breeding. Ocean acidification 
also has a documented impact on krill growth and development (Kurihara, 
2008), and krill is the primary prey item for Southern Hemisphere 
humpback whales. Krill are tightly associated with sea ice (Brierley et 
al., 1999; Brierley et al., 2002), and decreasing sea ice may 
negatively impact krill abundance and/or distribution. Decreases in 
krill abundance have been observed around the Antarctic Peninsula 
(Atkinson et al., 2004). Overall population level effects from global 
climate change and anthropogenic noise are not known and the threat was 
ranked low, based on the premise that krill would need to be 
substantially reduced in order to put humpback whales at risk of 
extinction. As discussed above under Section 4(a)(1) Factors Applicable 
to All DPSs, the BRT did not think the linkage between climate change 
and future krill production was sufficiently well understood to rate it 
as moderate or high risk. Nonetheless, any potential impacts resulting 
from these threats will almost certainly increase.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
Southeast Africa/Madagascar DPS, with the exception of fishing gear 
entanglements posing a moderate threat to the DPS.

West Australia DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    The threat posed by energy development to the Western Australia 
population was considered medium

[[Page 22342]]

because of the substantial number of oil rigs and the amount of energy 
exploration activity in the region inhabited by the whales (indicator 
CO-26 in (Beeton et al., 2006)). Additionally, there are proposals for 
many more oil platforms to be built in the near future, which are 
highly likely to be executed (Department of Industry and Resources, 
2008).
    Coastally populated areas are increasing rapidly, and while the 
threat associated with coastal development is currently considered low, 
it is expected to increase. Although contaminant levels in humpback 
whales in this region are unknown, the threat level was considered low 
given what is known of contaminant levels in other populations.
    There have been no records of humpback whale deaths as a result of 
exposure to HABs in this DPS, thus the threat is considered low.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    No whaling occurs in this DPS' range.
    Whale-watching tourism and scientific research occur, at relatively 
low levels, throughout this DPS' range. Therefore, these threats are 
considered low.
C. Disease or Predation
    There are no recent studies of disease or parasitism in this DPS, 
but there are no indications that they represent a substantial threat 
to the DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the West Australia DPS were 
identified.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    Competition with fisheries is considered a low threat to humpback 
whales off the coast of Western Australia due to the lack of spatial 
and temporal overlap with fisheries and whales. The threat of offshore 
aquaculture is considered low, but aquaculture activities may be 
increasing in this region. In the Southern Hemisphere, humpback whales 
feed almost entirely on krill (Euphausia superba). There is a regulated 
commercial harvest of krill, but harvest levels are currently small and 
there is no evidence that this threatens the food supply of humpback 
whales (Everson and Goss, 1991; Nicol et al., 2008).
    Coastally populated areas are increasing rapidly, with associated 
development of ports bringing increased risks of ship strikes. All ship 
strikes in Commonwealth waters must be reported by law, and a summary 
of these has been provided to the IWC annually since 2006. Since this 
time there has only been one report concerning a possible humpback ship 
strike in Western Australian waters (IWC, 2009b). The threat of ship 
strikes in Western Australia is considered low, but likely increasing.
    There are 25 records of humpback whale entanglement events between 
2003 and 2008 in this region, with western rock lobster fishing gear 
most frequently implicated (Doug Coughran, pers comm.; IWC, 2004a; IWC, 
2005a; IWC, 2006a; IWC, 2007c; IWC, 2008). A rise in marine fishing 
debris has also been reported for the region (Environment Western 
Australia, 2007), which suggests that there may be an increasing risk 
of entanglement.
    Climate change may impact the West Australia DPS of humpback whales 
in multiple ways. Sea level rise, ocean warming and ocean acidification 
may all negatively impact the reef system, which provides shallow, 
protected waters for breeding. Ocean acidification also has a 
documented impact on krill growth and development (Kurihara, 2008), the 
primary prey item for Southern Hemisphere humpback whales. Krill are 
tightly associated with sea ice (Brierley et al., 1999; Brierley et 
al., 2002), and decreasing sea ice may negatively impact krill 
abundance and/or distribution. Decreases in krill abundance have been 
observed around the Antarctic Peninsula (Atkinson et al., 2004). 
Overall population level effects from global climate change and 
anthropogenic noise are not known and the threat was ranked low, based 
on the premise that krill would need to be substantially reduced in 
order to put humpback whales at risk of extinction. As discussed above 
under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not 
think the linkage between climate change and future krill production 
was sufficiently well understood to rate it as moderate or high risk. 
Nonetheless, any potential impacts resulting from these threats will 
almost certainly increase.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
West Australia DPS, with the exception of energy exploration posing a 
moderate threat throughout Western Australia.

East Australia DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Whales migrating southward to the feeding grounds, as well as a 
portion of those migrating north, follow the east coast of Australia, 
and many or most are confined to a narrow corridor near the coast 
(Bryden, 1985; Noad et al., 2008) passing several large cities. 
Increasing coastal development is possible in these areas, but they 
represent a minor portion of the total migratory route. As with coastal 
development, sources of pollution for the east Australia DPS are 
concentrated in a few locations along the migratory route. The breeding 
area for this DPS is primarily within the Great Barrier Reef Marine 
Park (Chittleborough, 1965; Simmons and Marsh, 1986), which has a 
comprehensive set of state and Federal protection laws. However, during 
tropical floods, farmland runoff may bring significant quantities of 
pollutants (pesticides, fertilizers) down several rivers that empty 
into the Great Barrier Reef area (Haynes and Michalek-Wagnera, 2000). 
To date there are no known documented impacts of contaminants on 
humpback whale survival and fecundity. Oil and gas production occurs in 
Bass Strait (Australian Government, 2006), a region used by some whales 
of this DPS as they migrate to feeding grounds. Overall, these threats 
were considered to pose a low risk to this DPS.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Anthropogenic disturbance of this DPS occurs primarily on the 
breeding ground. Whale-watching tourism in eastern Australia 
(Queensland) has seen an annual average growth rate of 8.5 percent 
since 1998 (this includes boat and land-based operations and both 
whale- and dolphin-watching trips; O'Connor et al., 2009). In New South 
Wales, boat-based whale- and dolphin-watching has seen a 2.6 percent 
increase between 2003 and 2008.
    Scientific research activities on this DPS occur at the feeding 
grounds, breeding grounds and along the migratory route. Photo-
identification studies, biopsy efforts and other field studies do 
exist. However, adverse effects from research activities have not been 
documented and threats are considered low. Finally, scientific whaling 
proposed by Japan in the Antarctica feeding grounds would occur in 
areas where the East Australia DPS is known to feed (Nishiwaki et al., 
2007).

[[Page 22343]]

However, at this time no whaling in these feeding grounds is occurring.
C. Disease or Predation
    There is little to no information on the impacts of disease, 
parasites or predation on this DPS. Evidence for killer whale 
interaction is documented, and 17 percent of photo-identified humpback 
whales in East Australia show scarring on their flukes, most of which 
is consistent with interactions with killer whales (Naessig and Lanyon, 
2004). There is no evidence to suggest that this level of predation is 
outside the norm for the DPS. Given the population size and current 
growth rate, disease, predation and parasitism seem unlikely to pose a 
significant threat to this DPS.
D. Inadequacy of Existing Regulatory Mechanisms
    Oil and gas exploration and drilling are prohibited within the 
Great Barrier Reef Marine Park.
    Queensland has a substantial whale-watching management program 
(O'Connor et al., 2009), including restricting access to areas deemed 
essential for humpback conservation, and Australia has national whale-
watching guidelines. With these regulations in place, the BRT 
considered the threat level from whale-watching to be low.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is no published information on negative impacts of offshore 
aquaculture, competition with fisheries, or HABs on this DPS. In the 
Southern Hemisphere, humpback whales feed almost entirely on krill 
(Euphausia superba). There is a regulated commercial harvest of krill, 
but harvest levels are currently small and there is no evidence that 
this threatens the food supply of humpback whales (Everson and Goss, 
1991; Nicol et al., 2008).
    Vessel collisions and entanglement in fishing gear pose the 
greatest anthropogenic risks to the East Australia DPS. Thirteen ship-
strike incidents and five deaths have been reported between 2003 and 
2008 (summarized in Fleming and Jackson, 2011) and an additional ship-
strike was recorded in 2009 with the whale being seriously injured 
(IWC, 2010a). Both fishing vessels and commercial vessels have been 
involved in these incidents. Given the probable increase in fishing, 
tourism and commercial shipping, the threat is likely to increase. 
Entanglements are regularly reported along the east coast of Australia 
and 57 entanglements have been documented between 2003-2008, with 13 
confirmed deaths (Fleming and Jackson, 2011). In addition, six humpback 
whales were entangled in shark control nets and released in 2009 (IWC, 
2010b). These totals are likely underestimates as not all entanglements 
are reported and some are not identified to species. The majority were 
recorded in shark nets and occurred along the migratory route (Fleming 
and Jackson, 2011). Although not insignificant, given the population 
size and estimated growth rate, the threat level posed by these factors 
is considered low. Anthropogenic noise is also a possible threat to 
this DPS. There are several commercial shipping routes through the 
Great Barrier Reef breeding ground and along the coastal migratory 
route that likely result in some underwater noise exposure. Migration 
through Bass Strait would also expose whales to energy exploration and 
production noise. There is no information concerning exposure of whales 
to underwater military activities.
    Climate change may impact the East Australia DPS of humpback whales 
in multiple ways. Sea level rise, ocean warming and ocean acidification 
may all negatively impact the reef system, which provides shallow, 
protected waters for breeding. Ocean acidification also has a 
documented impact on krill growth and development (Kurihara, 2008), the 
primary prey item for Southern Hemisphere humpback whales. Krill are 
tightly associated with sea ice (Brierley et al., 1999; Brierley et 
al., 2002), and decreasing sea ice may negatively impact krill 
abundance and/or distribution. Decreases in krill abundance have been 
observed around the Antarctic Peninsula (Atkinson et al., 2004). 
Overall population level effects from global climate change and 
anthropogenic noise are not known and the threat was ranked low, based 
on the premise that krill would need to be substantially reduced in 
order to put humpback whales at risk of extinction. As discussed above 
under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not 
think the linkage between climate change and future krill production 
was sufficiently well understood to rate it as moderate or high risk. 
Nonetheless, any potential impacts resulting from these threats will 
almost certainly increase.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
East Australia DPS.

Oceania DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Surface run-off from nickel strip mines causes habitat degradation 
and pollution of lagoons in New Caledonia, which is one of the largest 
producers of nickel globally, yet the effect on the surrounding marine 
environment has been poorly monitored (e.g., de Forges et al., 1998; 
Labrosse et al., 2000; Metian et al., 2005). The threat to humpback 
whales in Oceania from coastal development and contaminants was 
considered low overall.
    The BRT considered the threats of energy exploration and 
development and offshore aquaculture to the Oceania population to be 
low but increasing, due to the expected growth of these activities over 
the next several decades.
    The level of threat posed by HABs to humpback whales in Oceania is 
unknown.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Some local whaling of humpback whales was carried out in French 
Polynesia (Rurutu), the Cook Islands and Tonga during the 20th century 
(Reeves, 2002), but this has ceased since 1960 at Rurutu (Poole, 2002), 
and since 1978 elsewhere (IWC, 1981). It does not appear that Tonga 
hunted whales before Europeans arrived in the region in the 19th 
century (Reeves, 2002). Tonga was used as a provisioning station for 
whaling vessels from the Northern Hemisphere while they operated in the 
South Pacific. Tongans then began conducting shore-based whaling in the 
late 1880s or early 1900s, and increasing demand prompted new boats and 
whalers to enter the growing industry (Reeves, 2002). Catch rates 
(whales landed) were estimated at 10-20 whales/year for the 1950s and 
1960s and at least 3-8 whales/year for the mid-1970s (Reeves, 2002). In 
1979, the Tonga Whaling Act was passed after a Royal Decree in 1978, 
prohibiting the catch of whales on what was originally designated as a 
temporary basis pending an assessment of the population by the IWC 
(Keller, 1982; Reeves, 2002; Kessler and Harcourt, 2012). However, no 
whaling has been carried out in Tonga since then. It is possible that 
this hunt was contributing significantly to the extinction risk of the 
Oceania DPS, but since no whaling has occurred there since 1979, it is 
no longer contributing to the DPS' extinction risk.
    Humpback whales are under threat from unregulated scientific 
whaling in

[[Page 22344]]

the Antarctic waters directly to the south of Oceania. None have been 
taken to date, but an annual catch of 50 humpback whales was proposed 
by Japan in the 2007/2008 season (Nishiwaki et al., 2007), as part of 
its JARPA II research program. This has been held in abeyance while 
Japan considers that progress is being made by the IWC in its meetings 
on the ``Future of the IWC.'' It is unlikely that the proposed take of 
humpback whales will be reinstated in the foreseeable future; in fact, 
Japan submitted its research proposal for the Antarctic on November 19, 
2014, and it did not include any humpback whales (Government of Japan, 
2014).
    Whale-watching tourism exists in all four of the principal survey 
sites in Oceania, with strong growth in the last decade. There is no 
boat-based, dedicated whale watching industry in American Samoa at 
present. Humpback whales have been at particular risk from excessive 
boat exposure through whale watching in the Southern Lagoon of New 
Caledonia, where there are currently 24 working operators. Levels of 
exposure have been unusually high (peaking during weekend periods), 
with boats at a distance of less than 100m from calves 40 percent of 
the time and each whale exposed to an average of 3.4 boats for 2 hours 
daily (Schaffar and Garrigue, 2008). In 2008, commercial tour operators 
voluntarily signed a code of conduct, and subsequent compliance with 
this code has significantly reduced the level of daily exposure to 
boats (South Pacific Whale Research Consortium, 2009). Whale watching 
and other recreational or research-related activities were deemed by 
the BRT to pose a low level of threat in this region.
C. Disease or Predation
    Mattila and Robbins (2008) reported raised skin lesions along the 
dorsal flanks of humpback whales in American Samoa. The lesions differ 
morphologically from the `depressed' lesions caused by cookie cutter 
sharks and appear to persist for long periods on the skin, rather than 
either erupting or healing. There are no reports of these lesions in 
whaling records, suggesting that this phenomenon is recent. The cause 
of these lesions is currently unknown (Mattila and Robbins, 2008), but 
they are not considered a threat to the population.
D. Inadequacy of Existing Regulatory Mechanisms
    Whale sanctuaries (local waters where whaling is prohibited) have 
since been declared in the Exclusive Economic Zones of French 
Polynesia, Cook Islands, Tonga, Samoa, American Samoa, Niue, Vanuatu, 
New Caledonia and Fiji (Hoyt, 2005), while whales are protected in New 
Zealand waters under the New Zealand Marine Mammal Protection Act.
    Whale watching guidelines are in place in Tonga and New Caledonia, 
while boat-based whale watching in the Cook Islands, Samoa and Niue is 
minimal (O'Connor et al., 2009).
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    There is little information available from the South Pacific 
regarding entanglement with fishing gear; two humpback whales have been 
observed in Tonga entangled in rope in one instance and fishing net in 
another (Donoghue, pers. comm.). One humpback mother (with calf) was 
reported entangled in a longline in the Cook Islands in 2007 (South 
Pacific Whale Research Consortium, 2008). Entanglement scars have been 
seen on humpback whales in American Samoa, but there are not enough 
data to determine an entanglement rate. Available evidence suggests 
that entanglement is a potential concern in regions where whales and 
stationary or drifting gear in the water overlap (Mattila et al., 
2010). The threat of entanglements was ranked low for the Oceania 
population.
    There is little information available from the South Pacific 
regarding ship strikes. This threat was ranked low but is expected to 
increase as vessel activity in the region increases. Similarly, this 
DPS is likely exposed to moderate levels of underwater noise resulting 
from human activities, which may include, for example, commercial and 
recreational vessel traffic. Overall population-level effects of 
exposure to underwater noise are not well established, but as vessel 
traffic and other activities are expected to increase, the level of 
this threat is expected to increase.
    In the Southern Hemisphere, humpback whales feed almost entirely on 
krill (Euphausia superba). There is a regulated commercial harvest of 
krill, but harvest levels are currently small and there is no evidence 
that this threatens the food supply of humpback whales (Everson and 
Goss, 1991; Nicol et al., 2008). The threat of competition with 
fisheries was considered low for the Oceania DPS.
    Climate change may impact the Oceania DPS of humpback whales in 
multiple ways. Sea level rise, ocean warming and ocean acidification 
may all negatively impact the reef system, which provides shallow, 
protected waters for breeding. Ocean acidification also has a 
documented impact on krill growth and development (Kurihara, 2008), the 
primary prey item for Southern Hemisphere humpback whales. Krill are 
tightly associated with sea ice (Brierley et al., 1999; Brierley et 
al., 2002), and decreasing sea ice may negatively impact krill 
abundance and/or distribution. Decreases in krill abundance have been 
observed around the Antarctic Peninsula (Atkinson et al., 2004). 
Overall population level effects from global climate change and 
anthropogenic noise are not known and the threat was ranked low, based 
on the premise that krill would need to be substantially reduced in 
order to put humpback whales at risk of extinction. As discussed above 
under Section 4(a)(1) Factors Applicable to All DPSs, the BRT did not 
think the linkage between climate change and future krill production 
was sufficiently well understood to rate it as moderate or high risk. 
Nonetheless, any potential impacts resulting from these threats will 
almost certainly increase.
    In summary, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown for the 
Oceania DPS.

Southeastern Pacific DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Human population growth and associated coastal development, 
including port development, disruption and possible partitioning of the 
marine habitat and increased turbidity in coastal waters, are potential 
threats to the Southeastern Pacific DPS. The presumed migratory route 
for this population lies in the coastal waters off Costa Rica, Panama, 
Colombia, Ecuador, Peru, and Argentina and includes some large human 
population centers in both Central and South America. Currently, the 
high degree of coastal development in this DPS' habitat is not 
substantially affecting the DPS' size or growth rate, and it is 
considered to be a low-level threat.
    Little has been published regarding contaminant levels in this 
region. However, while levels of DDTs, PCBs, and PBPEs are typically 
lower in Southern Hemisphere feeding areas than off the east or west 
coasts of the United States, little research has been done to confirm 
lower contaminant levels among Southern Hemisphere whales (Fleming and 
Jackson, 2011). DDT and PCB levels are likely to decrease in feeding 
areas because use of these chemicals has been banned in many

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countries, but PBPE use may still be increasing. Man-made contaminants 
are not considered to be a significant threat to this population.
    Energy exploration and development activities are present in this 
DPS' habitat range. Oil and gas production is currently increasing in 
the Gulf of Guayaquil, Ecuador (F[eacute]lix and Haase, 2005). A large 
number of oil tankers transit through the Straits of Magellan yearly, a 
notoriously difficult route to navigate. At least one oil spill has 
resulted from a ship running aground there (Morris, 1988). Energy 
development is likely to expand if oil and gas reserves are discovered 
in other locations, but it does not pose a threat to this population 
now or in the foreseeable future.
    HABs of dinoflagellates and diatoms exist within the feeding range 
of this DPS, but there have been no records of humpback whale deaths as 
a result of exposure in this area. The occurrence of HABs is expected 
to increase with increased run-off and nutrient input from human-
related activities; however, HABs do not pose a threat to this DPS now 
or in the foreseeable future.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    Whale-watching tourism and scientific research occur, at relatively 
low levels, throughout this DPS' range. Whale-watching tourism occurs 
along all of the South and Central American countries bordering the 
habitat of this DPS. Whale-watching industry growth has been 
significant and approximately half of these countries have whale-
watching guidelines in place (Hoyt and In[iacute]guez, 2008). Though 
some change in behavior of whales near tourism boats has been noted, 
whale-watching does not pose a threat to this DPS currently. Scientific 
research activities such as observation, biopsying, photographic 
studies and recording of underwater vocalizations of whales occur in 
both the breeding and feeding habitats and along this DPS' migratory 
route, though no adverse effects from these events have been recorded.
    No whaling occurs in this DPS' range.
C. Disease or Predation
    There is little information available on the impacts of disease or 
parasitism on this DPS.
    Predation does not appear to be a current threat to this DPS. 
Killer whale attacks on humpback whales have been observed in this 
region, and scarring from killer whale and potentially false killer 
whale and shark attacks has been documented from photographic 
catalogues (Fl[oacute]rez-Gonz[aacute]lez et al., 1994; Scheidat et 
al., 2000; F[eacute]lix and Haase, 2001). The scarring rate is lower 
than in some other DPSs.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the Southeastern Pacific DPS 
were identified.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    In the Southern Hemisphere, humpback whales feed almost entirely on 
krill (Euphausia superba). There is a regulated and growing commercial 
krill fishery, but harvest levels are currently small and there is no 
evidence that this threatens the food supply of humpback whales 
(Everson and Goss, 1991; Nicol et al., 2008).
    Aquaculture activities are high in waters of Argentina and Chile, 
but the impact of these activities on this DPS of humpback whales has 
not been documented and is likely low if few whales use these inland 
areas. Entanglement was determined to pose a medium threat to this DPS 
based on stranding and entanglement observations and spatial and 
temporal overlap with aquaculture activities.
    This DPS is likely exposed to relatively high levels of underwater 
noise resulting from human activities, including commercial and 
recreational vessel traffic, and activities in naval test ranges, and 
these levels are expected to increase. Especially high levels of large 
vessel traffic are found off Panama (over 12,000 ship transits 
annually) and in the Magellan Straits. Naval exercises occur around 
much of the South American coast annually. It is not known if 
underwater noise exposure affects humpback whale populations, but this 
does not currently appear to pose a significant threat to this DPS.
    No ships have reported striking humpback whales in this region, but 
incidents may be under-reported, and stranding reports indicate some 
contribution from vessel collisions (Capella Alzueta et al., 2001; 
Castro et al., 2008). Shipping traffic will probably increase as global 
commerce increases; thus, a reasonable assumption is that the level of 
vessel collisions will increase. Currently, ship strikes are considered 
a low level threat to this DPS.
    Entanglement in fishing gear poses the most significant risk to 
this DPS. The majority of entanglements involve gillnets and purse 
seines (F[eacute]lix et al., 1997; Capella Alzueta et al., 2001; Alava 
et al., 2005; Castro et al., 2008). The artisanal fishing fleet in 
Ecuador numbers over 15,000 vessels. Scarring rates indicate that close 
to one third of all observed animals have experienced some level of 
entanglement (Alava et al., 2005). These scarring rates are similar to 
those observed off the northeast coast of the United States. Less 
research effort in the Southeast Pacific region compared to the 
northeast coast of the United States suggests that this reported 
scarification rate may even be an underestimate of the actual level of 
entanglement occurring in the Southeast Pacific. The number of dead and 
entangled whales off Colombia has increased over the last two decades 
(Capella Alzueta et al., 2001). Calves comprise over half of all 
observed entanglement events, a disproportionate value in light of the 
calf to adult ratio in the DPS (Engel et al., 2006; Neto et al., 2008).
    Humpback whales in the Southern Hemisphere feed almost entirely on 
krill (Euphausia superba) and acidification of the marine environment 
has been documented to impact the physiology and development of krill 
and other calcareous marine organisms, potentially reducing their 
abundance and subsequent availability to humpback whales in the future. 
The life cycle of Euphausia superba is tied to sea ice, making this 
prey species vulnerable to warming effects from climate change. 
Decreases in krill abundance have been observed around the Antarctic 
Peninsula (Atkinson et al., 2004). Overall population level effects 
from global climate change and anthropogenic noise are not known and 
the threat was ranked low, based on the premise that krill would need 
to be substantially reduced in order to put humpback whales at risk of 
extinction. As discussed above under Section 4(a)(1) Factors Applicable 
to All DPSs, the BRT did not think the linkage between climate change 
and future krill production was sufficiently well understood to rate it 
as moderate or high risk. Nonetheless, any potential impacts resulting 
from these threats will almost certainly increase.
    In summary, fishing gear entanglements are likely to moderately 
reduce the population size or the growth rate of the Southeastern 
Pacific DPS, and all other threats are considered likely to have no or 
minor impact on population size and/or the growth rate or are unknown 
for the Southeastern Pacific DPS.

[[Page 22346]]

Arabian Sea DPS

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range
    The BRT determined that the threat posed by energy exploration to 
the Arabian Sea DPS should be classified as high, given the small 
population size and the present levels of energy activity. A 
catastrophic event similar to that of the Deepwater Horizon Oil Spill 
in the Gulf of Mexico could be devastating to this DPS, especially in 
light of the year-round presence of humpback whales in this area.
    The effect of pollutants on cetaceans is a concern in the region, 
as the Arabian Sea is a center of intense human activity with poor sea 
circulation, so pollutants can persist for long periods (Minton, 2004). 
Since the 1970s, the coastal and marine infrastructure in Oman has 
developed at a rapid rate, with over 80 percent of the population now 
living within 13 miles from the coast, and expanding development of oil 
and gas resources and fishing fleets (Minton, 2004). The threats from 
coastal development and contaminants are ranked low but increasing.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    This humpback whale DPS is exposed to minimal scientific research 
and whale-watching activities. The adverse effects from these 
activities have not been identified, and overall impact is expected to 
be low and stable.
    No commercial whaling occurs in this DPS' range, although 238 
humpback whales were illegally killed in the Arabian Sea by the USSR in 
1966 (Mikhalev, 1997).
C. Disease or Predation
    Liver damage was detected in 68.5 percent of necropsied humpback 
whales in this area during Soviet whaling in 1966, with degeneration of 
peripheral liver sections, cone-shaped growths up to 20 cm in diameter 
and blocked bile ducts (Mikhalev, 1997). While this pathology was 
consistent with infection by trematode parasites, none were identified 
during necropsy, and the causes of this liver damage remain unknown.
    Poisonous algal blooms and biotoxins have been implicated in some 
mass fish, turtle, and possibly cetacean, mortality events on the Oman 
coast, although no events have yet been known to include humpback 
whales. Coastal run-off from industrial activities is likely to be 
increasing rapidly, while regular oil spills in shipping lanes from 
tankers also contribute to pollution along the coast (e.g., Shriadah, 
1999). Tattoo skin lesions were observed in 26 percent of photo-
identified whales from Oman (Baldwin et al., 2010). While not thought 
to be a common cause of adult mortality, it has been suggested that 
tattoo skin disease may differentially kill neonates and calves that 
have not yet gained immunity (Van Bressem et al., 2009). The authors 
also suggested that this disease may be more prevalent in marine mammal 
populations that experience chronic stress and/or are exposed to 
pollutants that suppress the immune system.
D. Inadequacy of Existing Regulatory Mechanisms
    No regulatory mechanisms specific to the Arabian Sea DPS were 
identified.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
    The primary prey of humpback whales in Oman (Sardinella sp.) is 
also consumed by tuna and other commercial pelagic fish targeted by 
gillnet fisheries, but the severity of the threat of competition with 
fisheries is unknown.
    The BRT did not have information about offshore aquaculture 
activities in the Arabian Sea.
    Humpback whales in the Arabian Sea are exposed to a high level of 
vessel traffic (Baldwin, 2000; Minton, 2004; Kaluza et al., 2010), so 
the threat of ship strikes was considered medium for this small DPS.
    This DPS is likely exposed to relatively high levels of underwater 
noise resulting from human activities, including, for example, 
commercial and recreational vessel traffic, and activities related to 
oil and gas exploration and development. Overall population-level 
effects of exposure to underwater noise are not well-established, but 
exposure is likely chronic and at moderate levels. As vessel traffic 
and other activities are expected to increase, the level of this threat 
is expected to increase.
    There is high fishing pressure in areas off Oman where humpback 
whales are sighted. Eight live humpback whale entanglement incidents 
were documented between 1990 and 2000, involving bottom set gillnets 
often with weights still attached and anchoring the whales to the ocean 
floor (Minton, 2004). Minton et al. (2010b) examined peduncle 
photographs of humpback whales in the Arabian Sea and concluded that at 
least 33 percent had been entangled in fishing gear at some stage. The 
threat of fishing gear entanglements in the Arabian Sea is considered 
high and increasing.
    The threat posed by climate change to the Arabian Sea DPS of the 
humpback whale was determined to be slightly higher than to the other 
DPSs and was assigned medium threat level. This higher threat level is 
based on the more limited movement of this DPS that both breeds and 
feeds in the Arabian Sea. Changing climatic conditions may change the 
monsoon-driven upwelling that creates seasonal productivity in the 
region. While Northern Hemisphere individuals may be able to adapt to 
climatic changes by moving farther north, Arabian Sea individuals have 
less flexibility for expanding their range to cooler regions.
    Evidence that this DPS has undergone a recent genetic bottleneck 
and is currently at low abundance (Minton et al., 2010b) suggests that 
there may be an additional risk of impacts from increased inbreeding 
(which may reduce genetic fitness and increase susceptibility to 
disease). At low densities, populations are more likely to suffer from 
the ``Allee'' effect, where inbreeding and the heightened difficulty of 
finding mates reduces the population growth rate in proportion with 
reducing density.
    In summary, the Arabian Sea DPS faces unique threats, given that 
the whales do not migrate, but instead feed and breed in the same, 
relatively constrained geographic location. Energy exploration and 
fishing gear entanglements are considered likely to seriously reduce 
the population's size and/or growth rate, and disease, vessel 
collisions, and climate change are likely to moderately reduce the 
population's size or growth rate.

Ongoing Conservation Efforts

    When considering the listing, reclassification, or delisting of a 
species, section 4(b)(1)(A) of the ESA requires us to consider efforts 
by any State, foreign nation, or political subdivision of a State or 
foreign nation to protect the species. Such efforts would include 
measures by Native American tribes and organizations, local 
governments, and private organizations. Also, Federal, tribal, state, 
and foreign recovery actions (16 U.S.C. 1533(f)), and Federal 
consultation requirements (16 U.S.C. 1536) constitute conservation 
measures. We must evaluate any conservation efforts that have not yet 
been implemented or have not yet been shown to be effective under the 
joint NMFS/FWS Policy on the Evaluation of Conservation Efforts (PECE) 
(68 FR 15100; March 28, 2003). For these efforts, we must evaluate the 
certainty of

[[Page 22347]]

implementing the conservation efforts and the certainty that the 
conservation efforts will be effective on the basis of whether the 
effort or plan establishes specific conservation objectives, identifies 
the necessary steps to reduce threats or factors for decline, includes 
quantifiable performance measures for the monitoring of compliance and 
effectiveness, incorporates the principles of adaptive management, and 
is likely to improve the species' viability at the time of the listing 
determination.
    The Convention on the Conservation of Migratory Species of Wild 
Animals (CMS) is an intergovernmental treaty which requires range 
states to protect migratory species including humpback whales where 
they occur, conserve or restore habitats, mitigate obstacles to 
migration, and control other endangering factors. The humpback whale is 
listed in Appendix I of the CMS (species in danger of extinction 
throughout all or a significant portion of their range). Parties to CMS 
are required to prohibit take of Appendix I species. The CMS has 
developed binding Agreements and nonbinding Memoranda of Understanding 
(MOU). An MOU for the Conservation of Cetaceans and their Habitats in 
the Pacific Islands Regions became effective in 2006 and offers a level 
of protection to the Southern Hemisphere populations of humpback whales 
and their habitats in this region. The CMS Agreements on the 
Conservation of (a) Small Cetaceans in the Baltic, North East Atlantic, 
Irish and North Seas (29.03.1994) and (b) Cetaceans of the Black Seas, 
Mediterranean and Contiguous Atlantic Area are not designed 
specifically for the humpback whale but may provide incidental 
protection to the species.
    The Bern Convention on the Conservation of European Wildlife and 
Habitats is a regional European treaty on conservation of wild flora 
and fauna and their natural habitats and calls for signatories to 
provide special protection for fauna species listed in Appendix II and 
III to the convention. The convention is a binding agreement for 
participating parties, and its aim is to ensure conservation by means 
of cooperation, including efforts to protect migratory species. The 
Parties promote national policies and education for the conservation of 
nature and the integration of conservation into environmental policies. 
The humpback whale is listed in Appendix II--fauna species to be 
strictly protected--which prohibits deliberate capture and killing, 
damage to or destruction of breeding sites, deliberate disturbance of 
animals during breeding and rearing, and the possession of and internal 
trade in these animals alive or dead (Council of Europe's Bern 
Convention, 2013).
    The provisions of the Council of the European Union (EU) Directive 
92/43 on the Conservation of Natural Habitats and of Wild Fauna and 
Flora (EU Habitats Directive) are intended to promote the conservation 
of biodiversity in EU member countries. EU members meet the habitat 
conservation requirements of the network known as Natura 2000. Humpback 
whales are listed in Annex IV of the convention, which identifies 
species determined to be in need of strict protection across the 
European region. Twenty-seven member states work with the same 
legislative framework to protect species. Actions originating from the 
EU Habitats Directive that may provide protection to humpback whales in 
the region include (a) coordinated development of a European Red List 
of species threatened at the European level (parallel with the IUCN 
listings); (b) guidance documents on the protection of species listed 
under the Directive, and on the development of a network of 
conservation areas in the offshore marine environment and (c) species 
assessment reports. While not regulatory in nature, these actions are 
designed to reduce threats and provide a conservation benefit to the 
Atlantic humpback whales.
    The Commission for the Conservation of Antarctic Marine Living 
Resources (CCAMLR) was established in 1982 with 25 member countries. 
Its objective is the conservation of Antarctic marine life, 
particularly krill and the Antarctic marine ecosystems that depend on 
krill. The Commission manages fisheries for Antarctic krill and several 
finfish species with the goal of ensuring long-term sustainability and 
existing ecological relationships.
    Numerous additional international or regional treaties, conventions 
and agreements offer some degree of protection for humpback whales and 
their habitat (reviewed by Hoyt, 2011).
    In addition to IWC regulations discussed above under the Section 
4(a)(1) factors, the IWC co-ordinates and funds conservation work on 
many species of cetaceans. This includes work to reduce the frequency 
of ship strikes, to co-ordinate disentanglement events, and to 
establish Conservation Management Plans for key species and 
populations. Recently, the IWC has adopted a Strategic Plan for Whale 
Watching so as to facilitate the further development of this activity 
in a way which is responsible and consistent with international best 
practice (http://iwc.int/history-and-purpose, accessed February 10, 
2014). It is too early to evaluate the effectiveness of this plan under 
the PECE, but since the impact of whale-watching on all of the humpback 
whale DPSs is considered to be negligible, even if this plan proves to 
be extremely effective in reducing impacts of whale-watching on 
humpback whales, we would not likely conclude that this plan would make 
the difference between endangered and threatened status or between 
threatened and not warranted status for any of the humpback whale DPSs.
    At this time, we are not aware of any other formalized conservation 
efforts for humpback whales that have yet to be implemented, or which 
have recently been implemented but have yet to show their effectiveness 
in removing threats to the species. Therefore, we do not need to 
evaluate any other conservation efforts under the PECE.

Rationale for Revising the Current Global Listing and Replacing It With 
Listings of DPSs

    As explained throughout this proposed rule, we have determined 
that, based on the best currently available scientific and commercial 
information including the BRT's recommendations and consideration of 
the uncertainty involved in its recommendation to identify the Okinawa/
Philippines and Second West Pacific populations as separate DPSs, the 
humpback whale should be recognized under the ESA as a set of 14 
separate DPSs. Based on a comprehensive status review and our analysis 
of demographic factors and the Section 4(a)(1) factors, we have 
concluded that some of the DPSs qualify as endangered species, some 
qualify as threatened species, and some do not qualify for listing. Our 
proposed action here is prompted both by our own review, begun in 2009, 
and the two delisting petitions we received.
    Our proposed determinations are based on the best available 
scientific and commercial information pertaining to the species 
throughout its range and within each DPS. In this proposed rule, we are 
identifying 14 DPSs, making listing determinations for each of these 
DPSs, and proposing to revise the current listing to reflect the new 
determinations. We find that the purposes of the ESA would be furthered 
by managing this wide-ranging species as separate units under the DPS 
authority, in order to tailor protections of the ESA to those 
populations that warrant protection. Based on a review of the 
demographics of these DPSs and the five factors contained in ESA 
section 4(a)(1), we find that the best available science no longer 
supports a finding that the species is an ``endangered

[[Page 22348]]

species'' throughout its range. We propose to revise the listing for 
the humpback whale by removing the current species-wide listing and in 
its place listing 2 DPSs as threatened and 2 as endangered. Ten DPSs 
are not being proposed for listing because their current status does 
not warrant listing. Since these DPSs are not currently listed as 
separate entities, we are proposing to replace the existing listing of 
the species with separate listings for those DPSs that warrant 
classification as threatened or endangered, rather than ``delisting'' 
those DPSs that do not warrant such classification under our 
regulations (50 CFR 424.11(d)). However, the effect of our proposed 
action, if finalized, will be that the protections of the ESA will no 
longer apply to these 10 DPSs. We note that we have previously 
reclassified a species into constituent populations and revised the 
listing to remove one population from the list or assign different 
statuses to the different populations (e.g., identifying western and 
eastern populations of the gray whale and removing the eastern one from 
the endangered species list (59 FR 31094; June 16, 1994); identifying 
western and eastern DPSs of the Steller sea lion, which had been listed 
as threatened, and listing the western DPS as endangered (62 FR 24345; 
May 5, 1997)).
    The ESA gives us authority to make these listing determinations and 
to revise the lists of endangered and threatened species to reflect 
these determinations. Section 4(a)(1) of the ESA authorizes us to 
determine by regulation whether ``any species,'' which is expressly 
defined to include species, subspecies, and DPSs, is endangered or 
threatened based on certain factors. Review of the status of a species 
may be commenced at any time, either on our own initiative through a 
status review or in connection with a 5-year review under Section 
4(c)(2), or in response to a petition. A DPS is not a scientifically 
recognized entity, but rather one that is created under the language of 
the ESA and effectuated through our 1996 DPS Policy. We have some 
discretion to determine whether a species should be reclassified into 
DPSs and what boundaries should be recognized for each DPS. At the 
conclusion of the listing review process, Section 4(c)(1) gives us 
authority to update the lists of endangered species and threatened 
species to conform to our most recent determinations. This can include 
revising the lists to remove a species from the lists or reclassifying 
the listed entity.
    Neither the ESA nor our regulations explicitly prescribe the 
process we should follow where the best available scientific and 
commercial information indicates that the listing of a taxonomic 
species should be updated and revised into listings of constituent 
DPSs. To the extent it may be said that the statute is ambiguous as to 
precisely how the updated listings should replace the original listing 
in such circumstances, we provide our interpretation of the statutory 
scheme. The purposes of the statute are furthered in certain situations 
where the agency has determined that it is appropriate to revise a 
rangewide listing in order to ensure that the current lists of 
endangered and threatened species comport with the best available 
scientific and commercial information. For example, updating a listing 
may further the statute's purpose of recognizing when the status of a 
listed species has improved to the point that fewer protections are 
needed under the ESA, allowing for appropriately tailored management 
for the populations that do not warrant listing and for those remaining 
populations that do. Where a species, subspecies, or DPS no longer 
needs protection of the ESA, removing those protections may free 
resources that can be devoted to the protection of other species. 
Conversely, disaggregating a listing into DPSs can also sometimes lead 
to greater protections if one or more constituent DPSs qualify for 
reclassification to endangered.
    There is no practicable alternative to simultaneously recognizing 
the newly identified DPSs and proposing to assign them the various 
statuses of threatened, endangered, or not warranted for listing to 
replace the original taxonomic species listing. It would be nonsensical 
and contrary to the statute's purposes and the best available science 
requirement to attempt to first separately list all the constituent 
DPSs; the best available scientific and commercial information would 
not support listing all of the DPSs now in order to delist some of them 
subsequently. Nor would it make sense to attempt to first ``delist'' 
the species-level listing in order to then list some of the constituent 
DPSs. Where multiple DPSs qualify for listing as endangered or 
threatened, it would inherently thwart the statute's purposes to remove 
protections of the ESA from all members of the species even 
temporarily. The approach we are proposing ensures a smooth transition 
from the current taxonomic species listing to the future listing of 
certain specified DPSs.
    After we consider public comment, if we publish a final rule that 
has the effect of removing specified DPSs from the endangered species 
list, we will continue to monitor the status of the entire range of the 
humpback whale. For any DPSs that are listed, monitoring is as a matter 
of course, pursuant to the obligation to periodically review the status 
of these species (ESA Section 4(c)(2)). In addition, we will undertake 
monitoring of any DPSs that are not listed as a result of their 
improved status (ESA Section 4(g)).

Conclusions on the Status of Each DPS Under the ESA

    Based on the BRT's DPS conclusions (with the exception that we 
combined the Okinawa/Philippines and Second West Pacific populations 
identified by the BRT into the Western North Pacific DPS), the BRT's 
assessment of the demographic and ESA section 4(a)(1) factors, and our 
evaluation of ongoing conservation efforts, we make the following 
listing determinations.

Endangered DPSs

    We conclude that 2 humpback whale DPSs are in danger of extinction 
throughout their ranges: The Cape Verde Islands/Northwest Africa DPS 
and the Arabian Sea DPS.
    Little is known about the total size of the Cape Verde Islands/
Northwest Africa DPS, and its trend is unknown. For the Cape Verde 
Islands/Northwest Africa DPS, the threats of HABs, disease, parasites, 
vessel collisions, fishing gear entanglements and climate change are 
unknown. All other threats to this DPS are considered likely to have no 
or minor impact on the population size and/or growth rate. The BRT 
distributed 32 percent of its likelihood points for this DPS to the 
``high risk of extinction'' category, 43 percent to the ``moderate risk 
of extinction'' category, and 25 percent to the ``not at risk of 
extinction'' category. We have no reason to believe that this DPS' 
status has improved since humpback whales within the range of this DPS 
were listed as endangered. Because of the high likelihood that the 
abundance of this DPS is low and the considerable uncertainty regarding 
the risks of extinction of this DPS due to a general lack of data, we 
propose to retain the Cape Verde Islands/Northwest Africa DPS on the 
list of endangered species at 50 CFR 224.101.
    The estimated abundance of the Arabian Sea DPS is less than 100, 
but its entire range was not surveyed, so it could be somewhat larger. 
Its trend is unknown. The Arabian Sea DPS faces unique threats, given 
that the whales do

[[Page 22349]]

not migrate, but instead feed and breed in the same, relatively 
constrained geographic location. Energy exploration and fishing gear 
entanglements are considered likely to seriously reduce the 
population's size and/or growth rate, and disease, vessel collisions 
and climate change are likely to moderately reduce the population's 
size or growth rate. The BRT distributed 87 percent of its likelihood 
points for the Arabian Sea DPS in the ``at high risk of extinction'' 
category. We agree with the BRT that the Arabian Sea DPS is at a high 
risk of extinction, and therefore, we propose to retain the Arabian Sea 
DPS on the list of endangered species at 50 CFR 224.101.

Threatened DPSs

    We conclude that 2 other DPSs are likely to become in danger of 
extinction in the foreseeable future throughout their ranges: The 
Western North Pacific DPS and the Central America DPS. As noted above, 
in making this determination, we applied the same 60-year timeframe as 
the BRT assumed for the foreseeable future.
    The abundance of the Western North Pacific DPS is thought to be 
about 1,100 individuals or more, with unknown trend. All threats are 
considered likely to have no or minor impact on population size and/or 
the growth rate or are unknown, with the following exceptions: Energy 
development, whaling, competition with fisheries, and vessel collisions 
are considered likely to moderately reduce the population size or the 
growth rate of the Okinawa/Philippines portion of this DPS. Fishing 
gear entanglements are considered likely to seriously reduce the 
population size or the growth rate of the Okinawa/Philippines portion 
of this DPS. In general, there is great uncertainty about the threats 
facing the Second West Pacific portion of this DPS. The BRT distributed 
36 percent of its likelihood points for the Okinawa/Philippines portion 
of the DPS in the ``high risk of extinction'' category and 44 percent 
in the ``moderate risk of extinction'' category, with only 21 percent 
of the points in the ``not at risk of extinction'' category. The 
distribution of likelihood points among the risk categories indicates 
uncertainty. There was also considerable uncertainty regarding the risk 
of extinction of the Second West Pacific portion of this DPS, with 14 
percent of the points in the ``high risk of extinction'' category, 47 
percent in the ``moderate risk of extinction'' category, and 39 percent 
in the ``not at risk of extinction'' category. The majority of 
likelihood points were in the ``moderate risk of extinction'' category 
for both portions of the Western North Pacific DPS. Given the 
relatively low population size of the Western North Pacific DPS 
(estimated to be less than 2,000), the moderate reduction of its 
population size or growth rate likely from energy development, whaling, 
competition with fisheries, and vessel collisions, the serious 
reduction of its population size or growth rate likely from fishing 
gear entanglements, the fact that the majority of the BRT's likelihood 
points were in the ``moderate risk of extinction'' category for both 
portions of the DPS, and the considerable uncertainty associated with 
this, we propose to add the Western North Pacific DPS to the list of 
threatened species at 50 CFR 223.102.
    The abundance of the Central America DPS is thought to be about 500 
individuals with unknown trend. All threats are considered likely to 
have no or minor impact on population size and/or the growth rate or 
are unknown, with the following exceptions: Vessel collisions and 
fishing gear entanglements are considered likely to moderately reduce 
the population size or the growth rate of the Central America DPS. The 
BRT distributed 28 percent of its likelihood points for the Central 
America DPS in the ``high risk of extinction'' category, 56 percent in 
the ``moderate risk of extinction'' category, and 16 percent in the 
``not at risk of extinction'' category, but the distribution of votes 
among the risk categories indicates uncertainty. Given the relatively 
low population size (estimated to be about 500), the moderate reduction 
of its population size or growth rate likely from vessel collisions and 
fishing gear entanglement, the fact that the majority of the BRT's 
likelihood points were in the ``moderate risk of extinction'' category, 
and the high uncertainty associated with this, we propose to add the 
Central America DPS to the list of threatened species at 50 CFR 
223.102.
    Pursuant to the second sentence of section 4(d) of the ESA, we 
propose to extend the prohibitions of Section 9(a)(1)(A) through 
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species 
to the Western North Pacific and Central America DPSs of the humpback 
whale.

DPSs Not Warranted for Listing Under the ESA

    Finally, we conclude that 10 DPSs are neither in danger of 
extinction throughout all or a significant portion of their ranges nor 
likely to become so in the foreseeable future: West Indies, Hawaii, 
Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, 
West Australia, East Australia, Oceania, and Southeastern Pacific DPSs. 
When the BRT first reached its conclusions regarding whether any 
portions of the ranges of these DPSs were significant, NMFS and the FWS 
had not yet finalized the SPOIR policy. The draft SPOIR policy that the 
BRT followed differed from the final SPOIR policy in that a portion of 
the range of a species was considered ``significant'' if the portion's 
contribution to the viability of the species was so important that, 
without that portion, the species would be in danger of extinction 
throughout all of its range. The difference between the draft and final 
policies is the threshold at which we determine whether a portion is 
significant. Under the final SPOIR policy the hypothetical loss of the 
portion being considered would only need to result in the species being 
threatened throughout its range instead of endangered throughout its 
range to be considered significant. Before finalizing its report, the 
BRT was provided with a draft of the final SPOIR policy, which included 
this lower threshold of ''threatened'' for determining whether a 
portion is significant. Based on the revised SPOIR policy, the BRT 
revisited its SPOIR determinations and concluded for all DPSs that were 
at low or no risk of extinction, ``The ``significant portion of its 
range'' analyses under the final policy would not have resulted in 
different conclusions from the analyses conducted under the draft 
policy.''
    In the North Atlantic, the abundance of the West Indies DPS is much 
greater than 2,000 individuals and is increasing moderately. The 
threats of HABs, vessel collisions, and fishing gear entanglements are 
likely to moderately reduce the population size and/or the growth rate 
of the West Indies DPS. All other threats, with the exception of 
climate change (unknown severity), are considered likely to have no or 
minor impact on population size or the growth rate of this DPS. The BRT 
distributed 82 percent of its likelihood points for the West Indies DPS 
to the ``not at risk of extinction'' category and 17 percent to the 
``moderate risk of extinction'' category. Given the large population 
size (>2,000), moderately increasing trend, and the high percentage of 
likelihood points allocated to the ``not at risk of extinction'' 
category, we conclude that, despite the moderate threats of HABs, 
vessel collisions, and fishing gear entanglements and unknown severity 
of climate change as a threat, the West Indies DPS is not in danger of 
extinction throughout its

[[Page 22350]]

range or likely to become so in the foreseeable future throughout its 
range.
    Next, per the SPOIR Policy, we need to determine whether the West 
Indies DPS is in danger of extinction or likely to become so in the 
foreseeable future in a significant portion of its range. The BRT noted 
that there are some regional differences in threats for the West Indies 
DPS, but it was unable to identify portions of the DPS that both faced 
particularly high threats and were so significant to the viability of 
the DPS as a whole that, if lost, would result in the remainder of the 
DPS being at high risk of extinction. We agree with the BRT's 
conclusions and conclude that there are no portions of the DPS that 
face particularly high threats and are so significant to the viability 
of the DPS that, if lost, the DPS would be in danger of extinction or 
likely to become so in the foreseeable future. Therefore, we conclude 
that the DPS is not in danger of extinction in a significant portion of 
its range, nor likely to become so in the foreseeable future.
    We conclude that the West Indies DPS is not endangered or 
threatened throughout all or a significant portion of its range, and, 
therefore, we do not propose to list the West Indies DPS as a 
threatened or endangered species.
    In the North Pacific, the abundances of the Hawaii and Mexico DPSs 
are much greater than 2,000 individuals and are thought to be 
increasing moderately. All threats are considered likely to have no or 
minor impact on population size and/or the growth rate of these two 
DPSs or are unknown, with the following exceptions: Fishing gear 
entanglements are considered likely to moderately reduce the population 
size or the growth rate of the Hawaii and Mexico DPSs. The BRT 
distributed 98 percent and 92 percent of its likelihood points for the 
Hawaii and Mexico DPSs, respectively, to the ``not at risk of 
extinction'' category. Given the large population size (>2,000), 
moderately increasing trend, and high percentage of likelihood points 
allocated to the ``not at risk of extinction'' category for both the 
Hawaii and Mexico DPSs, we conclude that, despite the moderate threat 
of fishing gear entanglements, the Hawaii and Mexico DPSs are not in 
danger of extinction throughout their ranges or likely to become so in 
the foreseeable future.
    Next, per the SPOIR Policy, we need to determine whether the Hawaii 
and Mexico DPSs are in danger of extinction or likely to become so in 
the foreseeable future in a significant portion of their ranges. The 
BRT noted that there are some regional differences in threats for the 
Hawaii DPS, but it was unable to identify portions of the DPS that both 
faced particularly high threats and were so significant to the 
viability of the DPS as a whole that, if lost, would result in the 
remainder of the DPS being at high risk of extinction. The BRT noted 
that there also are some regional differences in threats for the Mexico 
DPS, and some evidence for minor substructure within the DPS due to 
multiple breeding locations associated with somewhat distinctive 
feeding grounds. However, the BRT was unable to identify portions of 
the DPS that faced particularly high threats compared to other portions 
of the DPS or that appeared to be at high risk of extirpation. We 
agree, and we conclude that no portions of either DPS face particularly 
high threats and are so significant to the viability of the DPS that, 
if lost, the DPSs would be in danger of extinction, or likely to become 
so in the foreseeable future. Therefore, we conclude that neither DPS 
is in danger of extinction in a significant portion of its range, or 
likely to become so in the foreseeable future.
    We conclude that the Hawaii and Mexico DPSs are not endangered or 
threatened throughout all or a significant portion of their ranges, and 
we therefore do not propose to list the Hawaii and Mexico DPSs as a 
threatened or endangered species.
    In the Southern Hemisphere, all seven DPSs are thought to be 
greater than 2,000 individuals in population size. The Brazil DPS is 
increasing either rapidly or moderately. The trend of the Gabon/
Southwest Africa DPS is unknown. The trend of the Southeast Africa/
Madagascar DPS is thought to either be increasing or stable. The trend 
of the Oceania DPS is unknown. The West Australia and East Australia 
DPSs are both large and increasing rapidly. The Southeastern Pacific 
DPS is thought to either be increasing or stable. In the Southern 
Hemisphere, all threats are considered likely to have no or minor 
impact on population size and/or the growth rate or are unknown, with 
the exception of energy exploration posing a moderate threat to the 
West Australia and Gabon/Southwest Africa DPSs, and fishing gear 
entanglements posing a moderate threat to the Southeastern Pacific, 
Southeast Africa/Madagascar, and Oceania DPSs. The BRT distributed at 
least 93 percent of their likelihood points to the ``not at risk of 
extinction'' category for six DPSs in the Southern Hemisphere (Brazil, 
Gabon/Southwest Africa, and Southeast Africa/Madagascar, West 
Australia, East Australia, and Southeastern Pacific DPSs), thus 
indicating a high certainty in its voting. For the Oceania DPS, the BRT 
distributed 68 percent of its points to the ``not at risk of 
extinction'' category, indicating moderate certainty, and 29 percent of 
its points to the ``moderate risk of extinction'' category, indicating 
some support. None of the factors that may negatively impact the status 
of the humpback whale appear to pose a threat to recovery, either alone 
or cumulatively, for these DPSs. Given the large population sizes 
(>2,000) for all seven DPSs, the fact that none of these DPSs is known 
to be decreasing in population size and some are increasing, the high 
percentage of (or, in the case of the Oceania DPS, the majority of) 
likelihood points allocated to the ``not at risk of extinction'' 
category, and the high certainty associated with six of these 
extinction risk estimates and moderate certainty associated with the 
extinction risk estimate for the Oceania DPS, we conclude that none of 
these seven DPSs are at risk of extinction throughout all of their 
ranges now or in the foreseeable future.
    Next, per the SPOIR Policy, we need to determine whether any of 
these DPSs are in danger of extinction or likely to become so in the 
foreseeable future in a significant portion of their ranges. The BRT 
was unable to identify portions of the Brazil, Southeast Africa/
Madagascar, West Australia, East Australia, and Southeastern Pacific 
DPSs that both faced particularly high threats and were so significant 
to the viability of the DPSs as a whole that, if lost, would result in 
the remainder of the DPSs being at high risk of extinction. We agree, 
and we also conclude that no portions of these DPSs face particularly 
high threats and are so significant to the viability of the DPSs that, 
if lost, any DPS would be in danger of extinction, or likely to become 
so in the foreseeable future. Therefore, we conclude that the Brazil, 
Southeast Africa/Madagascar, West Australia, East Australia, and 
Southeastern Pacific DPSs are not threatened or endangered in a 
significant portion of their ranges.
    The BRT concluded that there was some evidence for population 
substructure within the Gabon/Southwest Africa DPS, based on an 
extensive breeding range with some significant genetic differentiation 
among breeding locations (Rosenbaum et al., 2009). However, the BRT was 
unable to identify any portions of the DPS that both faced particularly 
high threats and were so significant to the viability of the DPS as a 
whole that, if lost, would result in the remainder of the DPS being at 
high risk of extinction. We agree, and we also conclude that no 
portions of this DPS face particularly high threats and are so 
significant to the viability of the DPS that, if lost, the DPS would be

[[Page 22351]]

in danger of extinction, or likely to become so in the foreseeable 
future. Therefore, we conclude that the Gabon/Southwest Africa DPS is 
not threatened or endangered in a significant portion of its range.
    The BRT noted that the Oceania DPS has potentially somewhat greater 
substructure than most other humpback whale DPSs due to its extended 
breeding range, though a lack of strong genetic structure indicates 
there are likely to be considerable demographic connections among these 
areas. Some threats, such as whale watching in the Southern Lagoon of 
New Caledonia, appear to be localized. Nonetheless, the BRT was unable 
to identify any specific areas where threats were sufficiently severe 
to be likely to cause local extirpation. We agree, and we also conclude 
that no portion of this DPS faces particularly high threats and is so 
significant to the viability of the DPS that, if lost, the DPS would be 
in danger of extinction, or likely to become so in the foreseeable 
future. Therefore, we conclude that the Oceania DPS is not threatened 
or endangered in a significant portion of its range.
    We conclude that none of the seven DPSs in the Southern Hemisphere 
are endangered or threatened throughout all or a significant portion of 
their ranges, and we therefore do not propose to list the Brazil, 
Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, 
East Australia, Oceania, and Southeastern Pacific DPSs as endangered or 
threatened species.

Monitoring Plan

    We will work with the states and countries within the range of the 
ten DPSs that we do not propose for listing (which has the effect of 
removing them from the endangered species list) to develop a plan for 
continuing to monitor the status of these DPSs. The objective of the 
monitoring plan will be to ensure that necessary recovery actions 
remain in place and to ensure the absence of substantial new threats to 
the DPSs' continued existence. In part such monitoring efforts are 
already an integral component of ongoing research, existing stranding 
networks, and other management and enforcement programs implemented 
under the MMPA. These activities are conducted by NMFS in collaboration 
with other Federal and state agencies, the Western Pacific Fishery 
Management Council, North Pacific Fishery Management Council, the New 
England Fishery Management Council, university affiliates, and private 
research groups. As noted in Bettridge et al. (2015), many regulatory 
avenues already in existence provide for review of proposed projects to 
reduce or prevent adverse effects to humpback whales and for post-
project monitoring to ensure protection to humpback whales, as well as 
penalties for violation of the prohibition on unauthorized take under 
the MMPA for all DPSs that occur in U.S. waters or by U.S. persons or 
vessels on the high seas. However, the addition and implementation of 
specific Monitoring Plans will provide an additional degree of 
attention and an early warning system to ensure that constructively 
removing these ten DPSs from the endangered species list will not 
result in the re-emergence of threats to the DPSs.

Description of Proposed Regulatory Changes

    To implement this proposed action we propose to replace the 
humpback whale listing on the endangered species list at 50 CFR 224.101 
with the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs of 
the humpback whale and add the Western North Pacific and Central 
America DPSs of the humpback whale to the list of threatened species at 
50 CFR 223.102.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations and agencies subject to U.S. jurisdiction. 
Section 4(d) of the ESA directs the Secretary of Commerce (Secretary) 
to implement regulations ``to provide for the conservation of 
[threatened] species'' that may include extending any or all of the 
prohibitions of section 9 to threatened species. Section 9(a)(1)(g) 
also prohibits violations of protective regulations for threatened 
species implemented under section 4(d). We are proposing to extend all 
of the prohibitions of section 9(a)(1) in protective regulations issued 
under the second sentence of section 4(d) for the Western North Pacific 
and Central America DPSs of the humpback whale. No special findings are 
required to support extending Section 9 prohibitions for the protection 
of threatened species. See In re Polar Bear Endangered Species Act 
Listing and 4(d) Rule Litigation, 818 F.Supp.2d 214, 228 (D.D.C. 2011); 
Sweet Home Chapter of Cmties. for a Great Oregon v. Babbitt, 1 F.3d 1, 
8 (D.C. Cir.1993), modified on other grounds on reh'g, 17 F.3d 1463 
(D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 687 (1995).
    Sections 7(a)(2) and (4) of the ESA require Federal agencies to 
consult or confer with us to ensure that activities they authorize, 
fund, or conduct are not likely to jeopardize the continued existence 
of a listed species or a species proposed for listing, or to adversely 
modify critical habitat or proposed critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us. 
Examples of Federal actions that may affect the Cape Verde Islands/
Northwest Africa, Western North Pacific, and Central America DPSs of 
the humpback whale include permits and authorizations for shipping, 
fisheries, oil and gas exploration, and toxic waste and other pollutant 
discharges, if they occur in U.S. waters or the high seas.
    Sections 10(a)(1)(A) and (B) of the ESA provide us with authority 
to grant exceptions to the ESA's section 9 ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets humpback 
whales, including the importation of non-U.S. samples for research 
conducted in the United States. Section 10(a)(1)(B) incidental take 
permits are required for non-Federal activities that may incidentally 
take a listed species in the course of an otherwise lawful activity.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, NMFS and the FWS issued an Interagency Cooperative 
Policy for Endangered Species Act Section 9 Prohibitions (59 FR 34272). 
The intent of this policy is to increase public awareness of the effect 
of our ESA 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 be considered likely to 
result in violation of section 9, as well as activities that will not 
be considered likely to result in violation. Because the Cape Verde 
Islands/Northwest Africa and Arabian Sea DPSs occur outside of the 
jurisdiction of the United States, we are presently unaware of any 
activities that could result in violation of section 9 of the ESA for 
these DPSs; nevertheless, the possibility for violations exists (for 
example, import into the United States). Activities that we believe 
could result in violation of section 9 prohibitions against ``take'' of 
the Western North Pacific and Central America DPSs of the humpback 
whale include: (1) Unauthorized harvest or

[[Page 22352]]

lethal takes of humpback whales in the Western North Pacific and 
Central America DPSs by U.S. citizens; (2) in-water activities 
conducted by U.S. citizens that produce high levels of underwater 
noise, which may harass or injure humpback whales in the Western North 
Pacific and Central America DPSs; (3) U.S. fisheries that may result in 
entanglement of humpback whales in the Western North Pacific and 
Central America DPSs; (4) vessel strikes from U.S. ships operating in 
U.S. waters or on the high seas; and (5) discharging or dumping toxic 
chemicals or other pollutants by U.S. citizens into areas used by 
humpback whales from the Western North Pacific and Central America 
DPSs.
    We expect, based on the best available information, the following 
actions will not result in a violation of section 9: (1) Federally 
funded or approved projects for which ESA section 7 consultation has 
been completed and necessary mitigation developed, and that are 
conducted in accordance with any terms and conditions we provide in an 
incidental take statement accompanying a biological opinion; and (2) 
takes of humpback whales in the Western North Pacific and Central 
America DPSs that have been authorized by NMFS pursuant to section 10 
of the ESA. These lists are not exhaustive. They are intended to 
provide some examples of the types of activities that we might or might 
not consider as constituting a take of humpback whales in the Western 
North Pacific and Central America DPSs.

Effects of This Rulemaking

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); 
concurrent designation of critical habitat, if prudent and determinable 
(16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to consult with 
NMFS under section 7 of the ESA to ensure their actions do not 
jeopardize the species or result in adverse modification or destruction 
of critical habitat should it be designated (16 U.S.C. 1536); 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. The 
main effects of the proposed listings are prohibitions on take, 
including export and import. If this proposed rule is finalized, the 
provisions discussed above will no longer apply to the DPSs that are in 
effect removed from the endangered species list.
    The MMPA provides substantial protections to all marine mammals, 
such as humpback whales, whether they are listed under the ESA or not. 
In addition, the MMPA provides heightened protections to marine mammals 
designated as ``depleted'' (e.g., no take waiver, additional 
restrictions on the issuance of permits for research, importation, and 
captive maintenance), including humpback whales. Section 3(1) of the 
MMPA defines ``depleted'' as ``any case in which'': (1) The Secretary 
``determines that a species or population stock is below its optimum 
sustainable population''; (2) a state to which authority has been 
delegated makes the same determination; or (3) a species or stock ``is 
listed as an endangered species or a threatened species under the 
[ESA]'' (16 U.S.C. 1362(1)). Section 115(a)(1) of the MMPA establishes 
that ``[i]n any action by the Secretary to determine if a species or 
stock should be designated as depleted, or should no longer be 
designated as depleted,'' such determination must be made by rule, 
after public notice and an opportunity for comment (16 U.S.C. 
1383b(a)(1)). It is NMFS' position that a marine mammal species 
automatically gains ``depleted'' status under the MMPA when it is 
listed under the ESA. In the absence of an ESA listing, NMFS follows 
the procedures described in section 115(a)(1) to designate a marine 
mammal species as depleted when the basis for its depleted status is 
that it is below its optimum sustainable population. This 
interpretation was recently confirmed by the United States Court of 
Appeals for the D.C. Circuit. See In re Polar Bear Endangered Species 
Act Listing and Section 4(d) Rule Litigation, 720 F.3d 354 (D.C. Cir. 
2013). Humpback whales are currently designated as ``depleted'' under 
the MMPA because of the species' ESA listing. NMFS has not separately 
determined that the humpback whale species is depleted on the basis 
that it is below its optimum sustainable population.
    NMFS is currently evaluating what result sections 3(1) and 
115(a)(1) of the MMPA require when a species that holds depleted status 
solely because of its ESA listing is found to no longer warrant ESA 
listing. Thus, we are currently reviewing whether any DPS of the 
humpback whale that is not listed under the ESA after a final rule is 
published would automatically lose depleted status under the MMPA, or 
whether the agency must undertake additional analysis and complete 
additional procedures before a change in depleted status may occur. We 
seek comments from the public regarding different options for 
construing the relevant provisions of these statutes in harmony and 
will consider all viable alternatives (see ADDRESSES).
    This rule also has implications for the approach regulations 
currently at 50 CFR 224.103(a) and (b), discussed previously. With 
regard to the regulations in effect in Hawaii (224.103(a)), the 
delisting of the Hawaii DPS, if finalized, would remove the ESA basis 
for promulgation of that rule. However, the substantially similar 
protections in effect within the Hawaiian Islands Humpback Whale 
National Marine Sanctuary, at 15 CFR 922.184, may provide sufficient 
protection for the species. We note that the Office of National Marine 
Sanctuaries has recently proposed to, among other things, expand the 
sanctuary boundaries and strengthen the protections from approaching 
vessels (80 FR 16224, 16238; March 26, 2015). We plan to propose, 
through separate rulemaking, to remove the approach regulations at 
Sec.  224.103(a) because those regulations are specific to endangered 
species. If additional protection is determined necessary, we may 
undertake separate rulemaking pursuant to the MMPA. We request public 
comment on this issue.
    With regard to the regulations in effect in Alaska (224.103(b)), 
the impacts of this proposed rule are different. When the Alaska 
provisions were adopted, we cited Section 112(a) of the MMPA in 
addition to Section 11(f) of the ESA as authority (16 U.S.C. 1382(a); 
16 U.S.C. 1540(f)). However, because the humpback whale was listed 
throughout its range as endangered, the rule was codified only in Part 
224 of the ESA regulations (which applies to ``Endangered Marine and 
Anadromous Species''). The reclassification of the Western North 
Pacific DPS to threatened, if finalized, would require relocating the 
provisions from Part 224 to Part 223 (which applies to ``Threatened 
Marine and Anadromous Species''). By separate rulemaking, we plan to 
propose to relocate these provisions to a new section, 223.214 in order 
to continue the protection of the threatened humpback whales in Alaska, 
because these provisions have been in effect for 14 years and are 
important in light of the potential impacts posed by the whalewatching 
industry, recreational boating community, and other maritime users. We 
would simultaneously delete current 50 CFR 224.103(b). In the separate 
rulemaking, we also plan to propose to set out these provisions in Part 
216 of Title 50 of the

[[Page 22353]]

Code of Federal Regulations for the protection of all humpback whales 
that may occur or transit through the waters surrounding Alaska, to 
reflect that these provisions were adopted under the MMPA as well as 
the ESA and are an important source of protection for these marine 
mammals. We seek public comment on this issue as well.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing a 
minimum peer review standard. The intent of the peer review policies is 
to ensure that listings are based on the best scientific and commercial 
data available. The BRT enlisted the help of the Marine Mammal 
Commission (MMC) to coordinate scientific peer review of the June 2012 
draft of its status review report. The MMC received comments from five 
reviewers and these reviews were provided, without attribution, to the 
BRT. The BRT addressed all peer review comments in the final status 
review report (Bettridge et al., 2015) being released with the 
publication of this 12-month finding/proposed rule. We conclude that 
these experts' reviews satisfy the requirements for ``adequate [prior] 
peer review'' contained in the Bulletin (sec. II.2.).

Critical Habitat

    Section 3 of the ESA (16 U.S.C. 1532(5A)) defines critical habitat 
as ``(i) the specific areas within the geographical area occupied by 
the species, at the time it is listed . . . 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 . . 
. upon a determination by the Secretary that such areas are essential 
for the conservation of the species.'' Section 3 of the ESA also 
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' to 
mean ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this chapter are no 
longer necessary'' (16 U.S.C. 1532(3)).
    Section 4(a)(3)(A)(i) of the ESA requires that, to the maximum 
extent practicable and determinable, critical habitat be designated 
concurrently with the listing of a species. Designation 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 
(16 U.S.C. 1533(b)(2)). 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 (16 U.S.C. 1536(a)(2)). This requirement 
is in addition to the section 7 requirement that Federal agencies 
ensure their actions do not jeopardize the continued existence of the 
species.
    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that NMFS ``consider those physical or biological 
features that are essential to the conservation of a given species 
including space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distribution of a species.'' The regulations further 
direct NMFS to ``focus on the principal biological or physical 
constituent elements . . . that are essential to the conservation of 
the species,'' and specify that the ``known primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify primary constituent elements (PCEs) as including, 
but 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.''
    The ESA directs the Secretary of Commerce to consider the economic 
impact, the national security impacts, and any other relevant impacts 
from designating critical habitat, and under section 4(b)(2), the 
Secretary may exclude any area from such designation if the benefits of 
exclusion outweigh those of inclusion, provided that the exclusion will 
not result in the extinction of the species. At this time, critical 
habitat for the humpback whales in the Western North Pacific and 
Central America DPSs is not determinable. We will propose critical 
habitat for the Western North Pacific and Central America DPSs of the 
humpback whale in a separate rulemaking if we determine that it is 
prudent to do so. To assist us with that rulemaking, we specifically 
request information to help us identify the essential features of this 
habitat, and to what extent those features may require special 
management considerations or protection, as well as the economic 
activities within the range of the Western North Pacific and Central 
America DPSs that could be impacted by critical habitat designation. 50 
CFR 424.12(h) specifies that critical habitat shall not be designated 
within foreign countries or in other areas outside U.S. jurisdiction. 
Therefore, we request information only on potential areas of critical 
habitat within the United States or waters within U.S. jurisdiction.
    Because the known distribution of the humpback whales in the Cape 
Verde Islands/Northwest Africa and Arabian Sea DPSs occurs in areas 
outside the jurisdiction of the United States, no critical habitat will 
be designated for these DPSs.

Public Comments Solicited

    Relying on the best scientific and commercial information 
available, we exercised our best professional judgment in developing 
this proposal to divide the humpback whale into 14 DPSs, retain the 
Cape Verde Islands/Northwest Africa and Arabian Sea DPSs on the list of 
endangered species at 50 CFR 224.101, add the Western North Pacific and 
Central America DPSs to the list of threatened species and extend all 
section 9 prohibitions to these DPSs, and remove the other 10 DPSs 
(West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast 
Africa/Madagascar, West Australia, East Australia, Oceania, and 
Southeastern Pacific) from the endangered species list at 50 CFR 
224.101. To ensure that the final action resulting from this proposal 
will be as accurate and effective as possible, we solicit comments and 
suggestions concerning this proposed rule from the public, other 
concerned governments and agencies, Indian tribal governments, Alaska 
Native tribal governments or organizations, the scientific community, 
industry, and any other interested parties. Comments are encouraged on 
this proposal as well as on the status review report (See DATES and 
ADDRESSES). Comments are particularly sought concerning:
    (1) The identification of 3 subspecies of humpback whale comprised 
of 14 DPSs;
    (2) The current population status of identified humpback whale 
DPSs;
    (3) Biological or other information regarding the threats to the 
identified humpback whale DPSs;
    (4) Information on the effectiveness of ongoing and planned 
humpback whale conservation efforts by countries, states, or local 
entities;

[[Page 22354]]

    (5) Activities that could result in a violation of section 9(a)(1) 
of the ESA if such prohibitions are applied to the Western North 
Pacific and Central America DPSs;
    (6) Whether any DPS of the humpback whale that is not listed under 
the ESA in a final rule would automatically lose depleted status under 
the MMPA, or, if not, what analysis and process is required by the MMPA 
before a change in depleted status may occur. We seek comments 
regarding different options for construing the relevant provisions of 
these statutes in harmony;
    (7) Whether approach regulations should be promulgated under the 
MMPA for the protection of the Hawaii DPS of the humpback whale, since 
if this rule becomes final, that DPS will no longer be listed under the 
ESA, or whether current protections in effect in the Hawaiian Islands 
Humpback Whale National Marine Sanctuary (at 15 CFR 922.184) are 
sufficient for the protection of the species from vessel interactions. 
Commenters should consider the impact of the recent proposal by NOAA's 
Office of National Marine Sanctuaries to expand the sanctuary 
boundaries and strengthen the approach regulations (80 FR 16224; March 
26, 2015);
    (8) Whether approach regulations in effect for the protection of 
humpback whales in Alaska, currently set forth at 50 CFR 224.103(b), 
should be relocated to Part 223 (which applies to threatened species) 
for the continuing protection of the Western North Pacific DPS, and 
whether these regulations should also be set out in 50 CFR 216 as MMPA 
regulations for the protection of all humpback whales occurring in that 
area in light of the fact that the MMPA was one of the original 
authorities cited in promulgating the regulation;
    (9) Information related to the designation of critical habitat, 
including identification of those physical or biological features which 
are essential to the conservation of the Western North Pacific and 
Central America DPSs of humpback whale and which may require special 
management consideration or protection;
    (10) Economic, national security, and other relevant impacts from 
the designation of critical habitat for the Western North Pacific and 
Central America DPSs of humpback whale; and
    (11) Research and other activities that would be important to 
include in post-delisting monitoring plans for the West Indies, Hawaii, 
Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, 
West Australia, East Australia, Oceania, and Southeastern Pacific DPSs.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). We will review all 
public comments and any additional information regarding the status of 
the identified DPSs of the humpback whale and will complete a final 
determination within 1 year of publication of this proposed rule, as 
required under the ESA. Final promulgation of the regulation(s) will 
consider the comments and any additional information we receive, and 
such communications may lead to a final regulation that differs from 
this proposal.

Public Hearings

    During each public hearing, a brief opening presentation on the 
proposed rule will be provided before accepting public testimony. 
Written comments may be submitted at the hearing or via the Federal e-
Rulemaking Portal (see ADDRESSES) until the scheduled close of the 
comment period on July 20, 2015. In the event that attendance at the 
public hearings is large, the time allotted for oral statements may be 
limited. Oral and written statements receive equal consideration. There 
are no limits on the length of written comments submitted to us.

Public Hearing Schedule

    The dates and locations for the four hearings are as follows:

    1. Honolulu: May 6, 2015, from 6:00 p.m. to 8:00 p.m. at the 
Japanese Cultural Center, Manoa Ballroom, 2454 South Beretania 
Street, Honolulu, HI 96826, with an informational open house 
beginning at 5:30 p.m. Parking is available at the Japanese Cultural 
Center for $5.
    2. Juneau: May 19, 2015, 5 p.m. to 8 p.m. at the Centennial 
Hall, Hickel Room, 101 Egan Drive, Juneau, AK.
    3. Plymouth: June 3, 2015, 6 p.m. to 8:30 p.m., Plymouth Public 
Library, 132 South Street, Plymouth, MA.
    4. Virginia Beach: June 9, 2015, 5 p.m. to 6:30 p.m., at the 
Hilton Virgina Beach Oceanfront, 3001 Atlantic Ave, Virginia Beach, 
VA. This will be in conjunction with the Mid-Atlantic Fishery 
Management Council's meeting being held during the same week.

Special Accommodations

    These hearings are physically accessible to people with 
disabilities. Requests for sign language interpretation or other 
accommodations should be directed to Marta Nammack (see ADDRESSES) as 
soon as possible, but no later than 7 business days prior to the 
hearing date.

Classification

National Environmental Policy Act (NEPA)

    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 NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6.) We are currently 
reviewing whether any other aspect of this proposed rule will require 
NEPA analysis.

Executive Order (E.O.) 12866, Paperwork Reduction Act, and Regulatory 
Flexibility Act

    This rule is exempt from review under E.O. 12866. This proposed 
rule does not contain a collection of information requirement for the 
purposes of the 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 analyses required by the Regulatory 
Flexibility Act are not applicable to the listing process.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this proposed rule; therefore this 
action does not have federalism implications as that term is defined in 
E.O. 13132.

E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of

[[Page 22355]]

due care with respect to Indian lands, tribal trust resources, and the 
exercise of tribal rights. E.O. 13175--Consultation and Coordination 
with Indian Tribal Governments--outlines the responsibilities of the 
Federal Government in matters affecting tribal interests. Section 161 
of Public Law 108-199 (188 Stat. 452), as amended by section 518 of 
Public Law 108-447 (118 Stat. 3267), directs all Federal agencies to 
consult with Alaska Native tribes or organizations on the same basis as 
Indian tribes under E.O. 13175.
    We intend to coordinate with tribal governments and native 
corporations which may be affected by the proposed action. We will 
provide them with a copy of this proposed rule for review and comment, 
and offer the opportunity to consult on the proposed action.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Endangered and threatened species.

    Dated: April 15, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, in paragraph (e), the table is amended by adding 
entries for ``Whale, humpback (Central America DPS)'' and ``Whale, 
humpback (Western North Pacific DPS)'' under MARINE MAMMALS in 
alphabetical order by Common Name to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                             Species \1\
---------------------------------------------------------------------  Citation(s) for    Critical
                                                   Description of          listing        habitat     ESA Rules
         Common name           Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Whale, humpback (Central       Megaptera        Humpback whales that  [Insert Federal            NA      223.213
 America DPS).                  novaeangliae.    breed along the       Register page
                                                 Pacific coast of      where the
                                                 Costa Rica, Panama,   document
                                                 Guatemala, El         begins], April
                                                 Salvador, Honduras,   21, 2015.
                                                 and Nicaragua in
                                                 the eastern North
                                                 Pacific Ocean or
                                                 feed almost
                                                 exclusively
                                                 offshore of
                                                 California and
                                                 Oregon in the
                                                 eastern North
                                                 Pacific Ocean, with
                                                 some feeding off
                                                 northern Washington/
                                                 southern British
                                                 Columbia.
Whale, humpback (Western       Megaptera        Humpback whales that  [Insert Federal            NA      223.213
 North Pacific DPS).            novaeangliae.    breed or winter in    Register page                     223.214
                                                 the area of Okinawa   where the
                                                 and the Philippines   document
                                                 in the Kuroshio       begins], April
                                                 Current (as well as   21, 2015.
                                                 unknown breeding
                                                 grounds in the
                                                 Western North
                                                 Pacific Ocean),
                                                 transitthe
                                                 Ogasawara area, or
                                                 feed in the North
                                                 Pacific Ocean,
                                                 primarily in the
                                                 West Bering Sea and
                                                 off the Russian
                                                 coast and the
                                                 Aleutian Islands.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
  National Marine Fisheries Service, is limited to turtles while in the water.

0
3. Add Sec.  223.213 to subpart B to read as follows:


Sec.  223.213  Western North Pacific and Central America distinct 
population segments (DPSs) of the humpback whale.

    Prohibitions. The prohibitions of section 9(a)(1)(A) through 
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species 
shall apply to the Western North Pacific DPS and the Central America 
DPS of the humpback whale listed in Sec.  223.102(e).

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
4. 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.

0
5. In Sec.  224.101, in the table in paragraph (h), revise the entry 
for ``Whale, humpback'' to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

[[Page 22356]]



----------------------------------------------------------------------------------------------------------------
                             Species \1\
---------------------------------------------------------------------  Citation(s) for    Critical
                                                   Description of          listing        habitat     ESA rules
         Common name           Scientific name      listed entity     determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Whale, humpback (Arabian Sea   Megaptera        Humpback whales that  [Insert Federal            NA           NA
 DPS).                          novaeangliae.    breed or feed in      Register page
                                                 the Arabian Sea.      where the
                                                                       document
                                                                       begins], April
                                                                       21, 2015.
Whale, humpback whale (Cape    Megaptera        Humpback whales that  [Insert Federal            NA           NA
 Verde Islands/Northwest        novaeangliae.    breed in waters       Register page
 Africa DPS).                                    surrounding the       where the
                                                 Cape Verde Islands    document
                                                 in the Eastern        begins], April
                                                 North Atlantic        21, 2015.
                                                 Ocean, as well as
                                                 an undetermined
                                                 breeding area in
                                                 the eastern
                                                 tropical Atlantic
                                                 (possibly Canary
                                                 Current) or feed
                                                 along the Iceland
                                                 Shelf and Sea and
                                                 the Norwegian Sea.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
  National Marine Fisheries Service, is limited to turtles while in the water.

[FR Doc. 2015-09010 Filed 4-20-15; 8:45 am]
 BILLING CODE 3510-22-P