[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Proposed Rules]
[Pages 70169-70187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28843]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0912161432-0453-02]
RIN 0648-XT37


Endangered and Threatened Wildlife and Plants: Proposed 
Endangered Status for the Hawaiian Insular False Killer Whale Distinct 
Population Segment

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the NMFS, have completed a comprehensive status review of 
the Hawaiian insular false killer whale (Pseudorca crassidens) under 
the Endangered Species Act (ESA) in response to a petition submitted by 
the Natural Resources Defense Council (NRDC) to list the Hawaiian 
insular false killer whale as an endangered species. After reviewing 
the best scientific and commercial information available, we have 
determined that the Hawaiian insular false killer whale is a distinct 
population segment (DPS) that qualifies as a species under the ESA. 
Moreover, after evaluating threats facing the species, and considering 
efforts being made to protect the Hawaiian insular DPS, we have 
determined that the DPS is declining and is in danger of extinction 
throughout its range. We propose to list it as endangered under the 
ESA. Although we are not proposing to designate critical habitat at 
this time, we are soliciting information to inform the development of 
the final listing rule and designation of critical habitat in the event 
the DPS is listed.

DATES: Comments on this proposal must be received by February 15, 2011. 
A public hearing will be held on Oahu, Hawaii, on Thursday, January 20, 
2011, 6:30 p.m. to 9 p.m., at the McCoy Pavilion at Ala Moana Park, 
1201 Ala Moana Blvd., Honolulu, HI 96814. NMFS will consider requests 
for additional public hearings if any person so requests by January 31, 
2011. Notice of the location and time of any such additional hearing 
will be published in the Federal Register not less than 15 days before 
the hearing is held.

ADDRESSES: You may submit comments identified by 0648-XT37 by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     Mail or hand-delivery: Submit written comments to 
Regulatory Branch Chief, Protected Resources Division, National Marine 
Fisheries Service, Pacific Islands Regional Office, 1601 Kapiolani 
Blvd., Suite 1110, Honolulu, HI 96814, Attn: Hawaiian insular false 
killer whale proposed listing.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. Comments will be posted for public viewing after the comment 
period has closed. All Personal Identifying Information (for example, 
name, address, etc.) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. The 
petition, status review report, and other reference materials regarding 
this determination can be obtained via the NMFS Pacific Islands 
Regional Office Web site: http://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html or by submitting a request to the Regulatory Branch 
Chief, Protected Resources Division, National Marine Fisheries Service, 
Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite 1110, 
Honolulu, HI 96814, Attn: Hawaiian insular false killer whale proposed 
listing.

FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS, Pacific Islands 
Regional Office, 808-944-2238; Lance Smith, NMFS, Pacific Islands 
Regional Office, 808-944-2258; or Dwayne Meadows, NMFS, Office of 
Protected Resources, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On October 1, 2009, we received a petition from the NRDC requesting 
that we list the insular population of Hawaiian false killer whales as 
an endangered species under the ESA and designate critical habitat 
concurrent with listing. According to the draft 2010 Stock Assessment 
Report (SAR) (Carretta et al., 2010) (available at http://www.nmfs.noaa.gov/pr/pdfs/sars/ sars/) that we have completed as required by 
the Marine Mammal Protection Act (MMPA), false killer whales within the 
United States (U.S.) Exclusive Economic Zone (EEZ) around the Hawaiian 
Islands are divided into a Hawaii pelagic stock and a Hawaii insular 
stock. The petition considers the insular population of Hawaiian false 
killer whales and the Hawaii insular stock of false killer whales to be 
synonymous. On January 5, 2010, we determined that the petitioned 
action presented substantial scientific and commercial information 
indicating that the petitioned action may be warranted, and we 
requested information to assist with a comprehensive status review of 
the species to determine if the Hawaiian insular false killer whale 
warranted listing under the Endangered Species Act of 1973 (ESA) (75 FR 
316).

ESA Statutory Provisions

    The ESA defines ``species'' to include subspecies or a DPS of any 
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). 
The U.S. Fish and Wildlife Service (FWS) and NMFS have adopted a joint 
policy describing what

[[Page 70170]]

constitutes a DPS of a taxonomic species (61 FR 4722). The joint DPS 
policy identifies two criteria for making DPS determinations: (1) The 
population must be discrete in relation to the remainder of the taxon 
(species or subspecies) to which it belongs; and (2) the population 
must be significant to the remainder of the taxon to which it belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) 
``It is markedly separated from other populations of the same taxon as 
a consequence of physical, physiological, ecological, or behavioral 
factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation''; or (2) ``it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D)'' of the ESA.
    If a population segment is found to be discrete under one or both 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. Considerations under the 
significance criterion may include, but are not limited to: (1) 
``Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon; (2) evidence that the loss of 
the discrete population segment would result in a significant gap in 
the range of a taxon; (3) evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere as an introduced population outside its 
historic range; and (4) evidence that the discrete population segment 
differs markedly from other populations of the species in its genetic 
characteristics.''
    The ESA defines an ``endangered species'' as one that is in danger 
of extinction throughout all or a significant portion of its range, and 
a ``threatened species'' as one that is likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range (16 U.S.C. 1532 (6) and (20)). The statute 
requires us to determine whether any species is endangered or 
threatened because of any of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overexploitation for commercial, recreational, scientific, 
or educational purposes; (3) disease or predation; (4) the inadequacy 
of existing regulatory mechanisms; or (5) other natural or manmade 
factors affecting its continued existence (16 U.S.C. 1533). We are to 
make this determination based solely on the best available scientific 
and commercial information after conducting a review of the status of 
the species and taking into account any efforts being made by states or 
foreign governments to protect the species.
    When evaluating conservation efforts not yet implemented or 
implemented for only a short period of time to determine whether they 
are likely to negate the need to list the species, we use the criteria 
outlined in the joint NMFS and FWS Policy for Evaluating Conservation 
Efforts When Making Listing Decisions (PECE policy; 68 FR 15100).

Status Review and Approach of the BRT

    To conduct the comprehensive status review of the Hawaiian insular 
population of the false killer whale, we formed a Biological Review 
Team (BRT) comprised of eight federal scientists from our Northwest, 
Southwest, Alaska, and Pacific Islands Fisheries Science Centers. We 
asked the BRT to review the best available scientific and commercial 
information to determine whether the Hawaiian insular false killer 
whale warrants delineation into a DPS, using the criteria in the joint 
DPS policy. We asked the BRT to then assess the level of extinction 
risk facing the species at the DPS level, describing its confidence 
that the DPS is at high risk, medium risk, or low risk of extinction. 
The BRT defined the level of risk based on thresholds that have been 
used to assess other marine mammal species, and consistent with the 
criteria used by the International Union for the Conservation of Nature 
(IUCN) Red List of Threatened Species (IUCN, 2001). In evaluating the 
extinction risk, we asked the BRT to describe the threats facing the 
species, according to the statutory factors listed under section 
4(a)(1) of the ESA, and qualitatively assess the severity, geographic 
scope, and level of certainty of each threat (Oleson et al., 2010).
    In compiling the best available information, making a DPS 
determination, and evaluating the status of the DPS, the BRT considered 
a variety of scientific information from the literature, unpublished 
documents, and direct communications with researchers working on false 
killer whales, as well as technical information submitted to NMFS. The 
BRT formally reviewed all information not previously peer-reviewed, and 
only that information found to meet the standard of best available 
science was considered further. Analyses conducted by individual BRT 
members were subjected to independent peer review, as required by the 
Office of Management and Budget Peer Review and Bulletin and under the 
1994 joint NMFS/FWS peer review policy for ESA activities (59 FR 
34270), prior to incorporation into the status review report.
    The BRT acknowledged that considerable levels of uncertainty are 
present for all aspects of the Hawaiian insular false killer whale's 
biology, abundance, trends in abundance, and threats. Such 
uncertainties are expected for an uncommon species that is primarily 
found in the open ocean where research is expensive and knowledge is 
consequently poor. The BRT decided to treat the uncertainty explicitly 
by defining where it exists and using a point system to weigh various 
plausible scenarios, taking into account all of the best available data 
on false killer whales, but also considering information on other 
similar toothed whales. The BRT's objectives in taking this approach 
were to make the process of arriving at conclusions detailed in the 
status review report as transparent as possible and to provide 
assurance that the BRT was basing its conclusions on a common 
understanding of the evidence. Details of this approach can be found in 
Appendix A of the status review report.
    The report of the BRT deliberations (Oleson et al., 2010) 
(hereafter ``status review report'') thoroughly describes Hawaiian 
false killer whale biology, ecology, and habitat, provides input on the 
DPS determination, and assesses past, present, and future potential 
risk factors, and overall extinction risk. The key background 
information and findings of the status review report are summarized 
below.

Biology and Life History of False Killer Whales

    The following section presents biology and life history information 
gathered from throughout the range of false killer whales. A later 
section focuses on information specific to the Hawaiian insular false 
killer whale.

Description

    The false killer whale, Pseudorca crassidens (Owen, 1846) is a 
member of the family Delphinidae, and no subspecies have been 
identified. The species is a slender, large delphinid, with maximum 
reported sizes of 610 cm for males (Leatherwood and Reeves, 1983) and 
506 cm for females (Perrin and Reilly, 1984). Length at birth has been 
reported to range from 160-190 cm, and length at sexual maturity is 334 
through 427 cm in females and 396-457

[[Page 70171]]

cm in males (Stacey et al., 1994; Odell and McClune, 1999). Estimated 
age at sexual maturity is about 8 to 11 years for females, while males 
may mature 8 to 10 years later (Kasuya, 1986). The maximum reported age 
has been estimated as 63 years for females and 58 years for males 
(Kasuya, 1986), with females becoming reproductively senescent at about 
age 44 (Ferreira, 2008). Both sexes grow 40 to 50 percent in body 
length during their first year of life, but males subsequently grow 
faster than females. Growth ceases between 20 and 30 years of age, and 
there is evidence of geographic variation in final asymptotic body 
size. Off the coast of Japan, asymptotic length is 46 cm (females) and 
56 cm (males) longer than off the coast of South Africa (Ferreira, 
2008). Large individuals may weigh up to 1,400 kg. Coloration of the 
entire body is black or dark gray, although lighter areas may occur 
ventrally between the flippers or on the sides of the head. A 
prominent, falcate dorsal fin is located at about the midpoint of the 
back, and the tip can be pointed or rounded. The head lacks a distinct 
beak, and the melon tapers gradually from the area of the blowhole to a 
rounded tip. In males, the melon extends slightly further forward than 
in females. The pectoral fins have a unique shape among the cetaceans, 
with a distinct central hump creating an S-shaped leading edge.

Global Distribution and Density

    False killer whales are found in all tropical and warm-temperate 
oceans, generally in deep offshore waters, but also in some shallower 
semi-enclosed seas and gulfs (e.g., Sea of Japan, Yellow Sea, Persian 
Gulf), and near oceanic islands (e.g., Hawaii, Johnston Atoll, 
Galapagos, Guadeloupe, Martinique) (Leatherwood et al., 1989). 
Sightings have also been reported as ``common'' in Brazilian shelf 
waters (IWC, 2007) where animals could be seen from shore from Rio de 
Janeiro feeding in an upwelling zone that concentrates prey. There are 
occasional records in both the northern and southern hemispheres of 
animals at latitudes as high as about 50 degrees (Stacey and Baird, 
1991; Stacey et al., 1994). In the western Pacific off the coast of 
Japan, false killer whales appear to move north-south seasonally, 
presumably related to prey distribution (Kasuya, 1971), but seasonal 
movements have not been documented elsewhere. Densities in the central 
and eastern Pacific range from 0.02 to 0.38 animals per 100 km\2\ (Wade 
and Gerrodette, 1993; Mobley et al., 2000; Ferguson and Barlow, 2003; 
Carretta et al., 2007), with the lowest densities reported for waters 
north of about 15 degrees north off Baja California, Mexico, and within 
the U.S. EEZ around Hawaii, and highest densities reported in waters 
surrounding Palmyra Atoll. Unlike other species that can be found both 
along continental margins and in offshore pelagic waters (e.g., 
bottlenose dolphins (Tursiops truncatus)), false killer whale densities 
generally do not appear to increase closer to coastlines.
    Although false killer whales are found globally, genetic, 
morphometric, and life history differences indicate there are distinct 
regional populations (Kitchener et al., 1990; Mobley et al., 2000; 
Chivers et al., 2007; Ferreira, 2008). Within waters of the central 
Pacific, four Pacific Islands Region management stocks of false killer 
whales are currently recognized for management under the U.S. MMPA: The 
Hawaii insular stock, the Hawaii pelagic stock, the Palmyra Atoll 
stock, and the American Samoa stock (Carretta et al., 2010).

Life History

    False killer whales are long-lived social odontocetes. Much of what 
is known about their life history comes either from examination of dead 
animals originating from drive fisheries in Japan (Kasuya and Marsh, 
1984; Kasuya, 1986) or strandings (Purves and Pilleri, 1978; Ferreira, 
2008). The social system has been described as matrilineal (Ferreira, 
2008). However, this is not consistent with two known characteristics 
of false killer whales: Males leave their natal group when they begin 
to become sexually mature; and research showing females within a single 
group have different haplotypes, indicating that even among females, 
groups are composed of more than near-relatives (Chivers et al., 2010). 
Ferreira (2008) suggested the mating system may be polygynous based on 
the large testes size of males, but actual understanding of the mating 
system remains poor.
    The only reported data on birth interval, 6.9 years between calves, 
is from Japan (Kasuya, 1986). However, annual pregnancy rates were 
reported for Japan as 11.4 percent and 2.2 percent for South Africa 
(Ferreira, 2008). A rough interbirth interval can be calculated by 
taking the inverse of the annual pregnancy rate, which yields intervals 
of 8.8 and 45 years for Japan and South Africa, respectively. A single 
stranding group where 1 out of 37 adult females was pregnant was the 
source of the South African data, which may not be a representative 
sample and could be insufficient to estimate pregnancy rates in that 
population.
    Comparisons of the life history parameters inferred from the 
Japanese drive fishery samples and the South African stranding sample 
indicated that the whales in Japan attained a larger asymptotic body 
size and grew faster. Also, a suite of characteristics of the whales in 
Japan indicated a higher reproductive rate: The ratio of reproductive 
to post-reproductive females was higher and the pregnancy rate was 
higher than in South Africa. Possible reasons given by Ferreira (2008) 
for the apparently higher reproductive rate in Japan are: The Japan 
whales are exhibiting a density-dependent response to population 
reduction as a result of exploitation; the colder waters near Japan are 
more productive; or differences in food quality. The estimated 
reproductive rates in both Japan and South Africa are low compared to 
those of other delphinids and especially to the two species with the 
most similar life history: Short-finned pilot whales (Globicephala 
macrorhynchus), and Southern Resident killer whales (Orcinus orca) 
(Olesiuk et al., 1990).
    Little is known about the breeding behavior of false killer whales 
in the wild, but some information is available from false killer whales 
held in oceanaria (Brown et al., 1966). Gestation has been estimated to 
last 11 to 16 months, (Kasuya, 1986; Odell and McClune, 1999). Females 
with calves lactate for 18 to 24 months (Perrin and Reilly, 1984). In 
captive settings, false killer whales have mated with other delphinids, 
including short-finned pilot whales and bottlenose dolphins. Bottlenose 
dolphins in captivity have produced viable offspring with false killer 
whales (Odell and McClune, 1999).
    Reproductive senescence is quite rare in cetaceans but has been 
documented in false killer whales and other social odontocetes. The two 
primary reasons given for reproductive senescence are increasing 
survival of offspring as a result of care given by multiple females of 
multiple generations (grandmothering), and transmission of learning 
across generations allowing survival in lean periods by remembering 
alternative feeding areas or strategies (McAuliffe and Whitehead, 2005; 
Ferreira, 2008).
    Wade and Reeves (2010) argue that odontocetes have delayed recovery 
as compared to mysticetes when numbers are reduced because of the 
combination of their life history, which results in exceptionally low 
maximum population growth rates, and the potential for social 
disruption. Particularly if older females are lost, it may take decades 
to rebuild the knowledge required to achieve maximum population growth 
rates.

[[Page 70172]]

Wade and Reeves (2010) give numerous examples, both from cetaceans 
(beluga whales (Delphinapterus leucas), killer whales, and sperm whales 
(Physeter macrocephalus) are particularly pertinent) and elephants, 
which are similarly long-lived social animals with reproductive 
senescence.

Feeding Ecology

    False killer whales are top predators, eating primarily fish and 
squid, but also occasionally taking marine mammals (see references in 
Oleson et al., 2010). These conclusions are based on relatively limited 
data from various parts of the species' range.The large, widely spread 
groups in which false killer whales typically occur (Baird et al., 
2008a; Baird et al., 2010) and their patchily distributed prey suggest 
that this species forages cooperatively. Further evidence for the 
social nature of false killer whale foraging is the observation of prey 
sharing among individuals in the group (Connor and Norris, 1982; Baird 
et al., 2008a). False killer whales feed both during the day and at 
night (Evans and Awbrey, 1986; Baird et al., 2008a).

Diving Behavior

    Limited information is available on the diving behavior of false 
killer whales. Maximum dive depth was estimated at 500 m (Cummings and 
Fish, 1971). Time depth recorders have been deployed on four false 
killer whales (R. Baird, pers. comm., Cascadia Research Collective) 
totaling approximately 44 hours. The deepest dive recorded during a 22-
hour deployment was estimated to have been as deep as 700 m (estimate 
based on duration past the recorder's 234 m limit and ascent and 
descent rates). However, only 7 dives were to depths greater than 150 
m, all of them accomplished in the daytime. Nighttime dives were all 
shallow (30-40 m maximum), but relatively lengthy (approximately 6-7 
minutes).
    Indirect evidence of dive depths by false killer whales can be 
inferred from prey. Mahimahi has been noted as a prominent prey item 
(Baird, 2009). Based on the catch rates of longlines instrumented with 
depth sensors and capture timers (Boggs, 1992) in the daytime, mahimahi 
are caught closer to the surface than other longline-caught fish, 
primarily in the upper 100 m. Other prey species, such as bigeye tuna, 
typically occur much deeper, from the surface down to at least 400 m 
(Boggs, 1992). The deepest dives by the instrumented false killer 
whales approach the daytime swimming depth limit of swordfish (Xiphias 
gladius), a prey item, near 700 m (Carey and Robinson, 1981).

Social Behavior

    There is quite a bit of variance in estimates of group size of 
false killer whales. At least some of the variability stems from 
estimation methods and time spent making the group size estimate. Most 
group sizes estimated from boats or planes vary from 1 to over 50 
animals with an average from 20 to 30, and group size estimates 
increase with encounter duration up to 2 hours (Baird et al., 2008a). 
Group size tends to increase with encounter duration because the 
species often occurs in small subgroups that are spread over tens of 
square miles. It is possible that the groups seen on typical boat or 
plane surveys are only part of a larger group spread over many miles 
(see e.g., Baird et al., 2010) that are in acoustic contact with one 
another. These widespread aggregations of small groups can total 
hundreds of individuals (Wade and Gerrodette, 1993; Carretta et al., 
2007; Baird, 2009; Reeves et al., 2009). Mass strandings of large 
groups of false killer whales (range 50-835; mean = 180) have been 
documented in many regions, including New Zealand, Australia, South 
Africa, the eastern and western North Atlantic, and Argentina (Ross, 
1984). Groups of 2-201 individuals (mean = 99) have also been driven 
ashore in Japanese drive fisheries (Kasuya, 1986). The social 
organization of smaller groups has been studied most extensively near 
the main Hawaiian Islands (Baird et al., 2008a), where individuals are 
known to form strong long-term bonds. False killer whales are also 
known to associate with other cetacean species, especially bottlenose 
dolphins (Leatherwood et al., 1988). Interestingly, records also show 
false killer whales attacking other cetaceans, including sperm whales 
and bottlenose dolphins (Palacios and Mate, 1996; Acevedo-Gutierrez et 
al., 1997).

Biology and Life History of Hawaiian Insular False Killer Whales

Current Distribution

    The boundaries of Hawaiian insular false killer whale distribution 
have been assessed using ship and aerial survey sightings and location 
data from satellite-linked telemetry tags. Satellite telemetry location 
data from seven groups of individuals tagged off the islands of Hawaii 
and Oahu indicate that the whales move widely and quickly among the 
main Hawaiian Islands and use waters up to at least 112 km offshore 
(Baird et al., 2010; Forney et al., 2010). Regular movement throughout 
the main Hawaiian Islands was also documented by re-sightings of 
photographically-identified individuals over several years (Baird et 
al., 2005; Baird, 2009; Baird et al., 2010). Individuals use both 
windward and leeward waters, moving from the windward to leeward side 
and back within a day (Baird, 2009; Baird et al., 2010; Forney et al., 
2010). Some individual false killer whales tagged off the Island of 
Hawaii have remained around that island for extended periods (days to 
weeks), but individuals from all tagged groups eventually ranged widely 
throughout the main Hawaiian Islands, including movements to the west 
of Kauai and Niihau (Baird, 2009; Forney et al., 2010). Based on 
locations obtained from 20 satellite-tagged insular false killer 
whales, the minimum convex polygon range for the insular population was 
estimated to encompass 77,600 km\2\ (M.B. Hanson, unpublished data).
    The greatest offshore movements occurred on the leeward sides of 
the islands, although on average, similar water depths and habitat were 
utilized on both the windward and leeward sides of all islands (Baird 
et al., 2010). Individuals utilize habitat overlaying a broad range of 
water depths, varying from shallow (<50 m) to very deep (>4,000 m) 
(Baird et al., 2010). Tagged insular false killer whales have often 
demonstrated short- to medium-term residence in individual island areas 
before ranging widely among islands and adopting another short-term 
residency pattern. It is likely that movement and residency patterns of 
the whales vary over time depending on the density and movement 
patterns of their prey species (Baird, 2009).
    A genetically distinct population of pelagic false killer whales 
occurs off Hawaii (Chivers et al., 2007). Hawaiian insular false killer 
whales share a portion of their range with the genetically distinct 
pelagic population (Forney et al., 2010). Satellite telemetry locations 
from a single tagged individual from the pelagic population, as well as 
shipboard and small boat survey sightings, suggest that the ranges of 
the two populations overlap in the area between 42 km and 112 km from 
shore (Baird et al., 2010; Forney et al., 2010). Based on this 
evidence, it is clear that the region from about 40 km to at least 112 
km from the main Hawaiian Islands is an overlap zone, in which both 
insular and pelagic false killer whales can be found. However, a small 
sample size of satellite-tracked individuals creates some uncertainty 
in these boundaries. In particular, the offshore boundary of the 
insular stock is

[[Page 70173]]

likely to be farther than 112 km because their documented offshore 
extent has increased as sample sizes of satellite-tracked individuals 
have increased. It is likely that additional deployments in the future 
will continue to result in greater maximum documented distances for 
insular false killer whales. Thus, an additional geographic ``buffer'' 
beyond the present maximum distance of 112 km has been recognized out 
to 140 km. Moreover, 140 km is approximately 75 nmi which follows the 
original boundary recommendation of Chivers et al. (2008). Therefore, 
the draft 2010 SAR for false killer whales recognizes an overlap zone 
between insular and pelagic false killer whales between 40 km and 140 
km from the main Hawaiian Islands based on sighting, telemetry, and 
genetic data (based on justification in Forney et al., 2010; Carretta 
et al., 2010). We recognize that boundary for this status review as 
well.

Life History

    There is no information available to assess whether the life 
history of Hawaiian insular false killer whales differs markedly from 
other false killer whale populations. However, there is also no 
evidence to show they are similar. As discussed earlier, false killer 
whales in Japan were larger and had a higher reproductive output than 
those in South Africa, and these differences were attributed to one or 
more of the following: colder more productive waters, response to 
exploitation, and different food in the two regions (Ferreira, 2008). 
It remains uncertain whether Hawaiian insular false killer whales are 
more like those from Japan or those from South Africa.

Social Structure

    Molecular genetic results support the separation of Hawaiian 
insular false killer whales from the more broadly distributed Hawaiian 
pelagic false killer whales (Chivers et al., 2007; 2010). Matches from 
photo-identification of individuals in groups of insular false killer 
whales also suggests functional isolation of the insular population 
from the overlapping pelagic population of false killer whales (Baird 
et al., 2008a). Based on 553 identifications available as of July 2009, 
with the exception of observations of four small groups (two observed 
near Kauai and two off the Island of Hawaii), all false killer whales 
observed within 40 km of the main Hawaiian Islands link to each other 
through a single large social network that makes up the insular 
population. A large group of 19 identified individuals of the pelagic 
population (or presumed to be) seen 42 km from shore and 
identifications from a number of other sightings of smaller groups do 
not link into the social network (Baird, 2009).
    The social cohesion of insular false killer whales is likely 
important to maintaining high fecundity and survival as it is in other 
highly social animals. Although some aspects of the behavior and 
``culture'' of Hawaiian insular false killer whales have been 
investigated or discussed, the mechanisms by which they might influence 
population growth rates are not well understood. The situation of this 
population could be analogous to those of other populations of large 
mammals in which females live well beyond their reproductive life spans 
(e.g., elephants, higher primates, and some other toothed cetaceans 
such as pilot whales) (McComb et al., 2001; Lahdenpera et al., 2004). 
The loss of only a few key individuals--such as the older, post-
reproductive females--could result in a significant loss of inclusive 
fitness conveyed by ``grandmothering'' behavior (i.e., assistance in 
care of the young of other females in the pod). In addition, cultural 
knowledge (e.g., how to cope with environmental changes occurring on 
decadal scales) could be lost, leading to reduced survival or fecundity 
of some or all age classes. Wade and Reeves (2010) document the special 
vulnerability of social odontocetes giving examples of killer whales, 
belugas, sperm whales, and dolphins in the eastern tropical Pacific.

Historical Population Size

    Historical population size is unknown. BRT members used density 
estimates from other areas together with the range inferred from 
telemetry data (see above) to suggest plausible ranges for historical 
abundance. Using the estimated density of false killer whales around 
the Palmyra Atoll EEZ, 0.38 animals/100 km\2\, where the highest 
density of this species has been reported (Barlow and Rankin, 2007), 
and extrapolating that density out to the 202,000 km\2\ area within 140 
km of the main Hawaiian Islands (proposed as a stock boundary for 
Hawaiian insular false killer whales in the draft 2010 SAR), a point-
estimate, or a plausible historical abundance, for the insular 
population is around 769. Alternatively, using one standard deviation 
above the point-estimate of the density around Palmyra Atoll to account 
for uncertainty in that density estimate, the upper limit of the 
abundance of Hawaiian insular false killer whales could have reached 
1,392 animals. The BRT placed the lower limit of plausible population 
size in 1989 at 470 based on the estimated number of animals observed 
in the 1989 aerial surveys (see above).
    There are several important caveats. Even though Palmyra has a 
density that is high relative to other areas, it is unlikely that this 
represented a pristine population during the 2005 survey on which the 
estimate is based. Given the depredation tendencies of false killer 
whales, known long-lining in the Palmyra area, and the fact that false 
killer whales are known to become seriously injured or die as a result 
of interactions with longlines, the possibility that current densities 
are lower than historical densities cannot be discounted. Although 
Palmyra is situated in more productive waters than the Hawaiian 
Islands, we do not understand enough about the feeding ecology, 
behavior, and social system(s) of false killer whales to know how or 
whether productivity might be related to animal density for false 
killer whales. This caveat is true for all other areas where population 
density estimates exist for false killer whales. Therefore, we used and 
view data from Palmyra as a conservative estimate of pristine density.

Current Abundance

    The draft 2010 SAR for Hawaiian insular false killer whales 
(Carretta et al., 2010) gives the best estimate of current population 
size as 123 individuals (coefficient of variation, or CV = 0.72), 
citing Baird et al. (2005). Recent reanalysis of photographic data has 
yielded two new estimates of population size for the 2006-2009 period. 
Two estimates are presented because two groups photographed near Kauai 
have not yet been observed to associate into the social network of 
false killer whales seen at the other islands. These animals may come 
from the pelagic population, may come from another undocumented 
population in the Northwestern Hawaiian Islands, or may represent a 
portion of the insular population that has not been previously 
documented photographically. The current best estimates of population 
size for Hawaiian insular false killer whales are 151 individuals (CV = 
0.20) without the animals photographed at Kauai, or 170 individuals (CV 
= 0.21) with them. As a comparison, the Hawaiian pelagic population is 
estimated to be 484 individuals (CV = 0.93) within the U.S. EEZ 
surrounding Hawaii (Barlow and Rankin, 2007).
    Although the absolute abundance of Hawaiian insular false killer 
whales is small, the core-area (within 40 km) population density (0.12 
animals/100 km\2\) is among the highest reported for this species. The 
high density of the Hawaiian insular population suggests a unique 
habitat capable of supporting a

[[Page 70174]]

larger population density than nearby oligotrophic waters.

Trends in Abundance

    Aerial survey sightings since 1989 suggest that the Hawaiian 
insular false killer whale population has declined over the last 2 
decades. A survey was conducted in June and July 1989 on the leeward 
sides of Hawaii, Lanai, and Oahu to determine the minimum population 
size of false killer whales in Hawaiian waters. False killer whales 
were observed on 14 occasions with 3 large groups (group sizes of 470, 
460, and 380) reported close to shore off the Island of Hawaii on 3 
different days (Reeves et al., 2009). As described in the Current 
Abundance section, the current best estimates of population size for 
Hawaiian insular false killer whales are 151 individuals without the 
animals photographed at Kauai, or 170 with them. Therefore, the largest 
group seen in 1989 is much larger than the current best estimate of the 
size of the insular population. Although the animals seen during the 
1989 surveys are assumed to come from the insular population based on 
their sighting location within 55 km of the Island of Hawaii, it is 
possible that they represent a short-term influx of pelagic animals to 
waters closer to the islands. Moreover, because photographic or genetic 
identification of individuals is often required to determine the 
population identity of false killer whales in Hawaiian waters, we 
cannot be absolutely certain that sightings from the 1989 or 1993 to 
2003 aerial surveys came from the insular population. Similarly, false 
killer whale bycatch or sightings by observers aboard fishing vessels 
cannot be attributed to the insular population when no identification 
photographs or genetic samples are obtained. Nevertheless, because of 
the location of the sightings and lack of evidence of pelagic animals 
occurring that close to the islands, it is most likely that this group 
did consist of insular animals.
    With respect to trends in group size, the average group size during 
the 1989 survey (195 animals) is larger than the typical average group 
size for the insular population (25 animals for encounters longer than 
2 hours) during more recent surveys (Baird et al., 2005). The 1989 
average group size is also larger than the more recent average of that 
observed for the pelagic population (12 animals) (Barlow and Rankin, 
2007).
    Five additional systematic aerial surveys were conducted between 
1993 and 2003 covering both windward and leeward sides of all of the 
main Hawaiian Islands, including channels between the islands, out to a 
maximum distance of about 46 km from shore (Mobley et al., 2000; 
Mobley, 2004). A regression of sighting rates from these surveys 
suggests a significant decline in the population size (Baird, 2009). 
The large groups sizes observed in 1989, together with the declining 
encounter rates from 1993 through 2003 suggest that Hawaiian insular 
false killer whales have declined substantially in recent decades.
    It is possible that weather or other survey conditions are at least 
partially responsible for the decline in sighting rates from 1993 
through 2003; however, there was no downward trend in the sighting 
rates for the four most commonly seen species of small cetaceans 
(spinner dolphin (Stenella longirostris), bottlenose dolphin, spotted 
dolphin (Stenella attenuata), and short-finned pilot whale). These four 
species represent nearshore and pelagic habitat preferences and span a 
range of body sizes from smaller to larger than false killer whales. It 
can be inferred from this evidence that variability in sighting 
conditions during the survey period did not have a major effect on 
sighting rates and therefore the sighting rate for insular false killer 
whales has, in fact, declined.
    A number of additional lines of evidence, summarized in Baird 
(2009), support a recent decline in Hawaiian insular false killer whale 
population size. Individual researchers in Hawaii have noted a marked 
decline in encounter rates since the 1980s and the relative encounter 
rate of false killer whales during the 1989 aerial survey was much 
higher than current encounter rates.

Population Structure

    Chivers et al. (2007) delineated false killer whales around Hawaii 
into two separate populations: Hawaiian insular and Hawaiian pelagic. 
That work has recently been extended with new samples, the addition of 
nuclear markers, and an analysis with a broader interpretation of the 
data (Chivers et al., 2010). The new analysis examined mitochondrial 
DNA (mtDNA) using sequences of 947 base pairs from the d-loop and 
nuclear DNA (nDNA) using eight microsatellites. These additional 
samples help confirm the delineation of these two populations.
    Three stratifications of the mtDNA data examined genetic 
differentiation at different spatial scales (Chivers et al., 2010). The 
broad-scale stratification recognized three groups: Hawaiian insular, 
central North Pacific, and eastern North Pacific. In the fine-scale 
stratification, five strata were recognized: Hawaiian insular, Hawaiian 
pelagic, Mexico, Panama, and American Samoa. The finest-scale 
stratification recognized each of the main Hawaiian Islands as strata.
    All but one Hawaiian insular false killer whale had one of two 
closely related haplotypes that have not been found elsewhere. The 
presence of two distinct, closely related haplotypes in Hawaiian 
insular false killer whales is consistent with Hawaiian insular false 
killer whales having little gene flow from other areas. This pattern 
differs from those of Hawaiian stocks of bottlenose, spinner, and 
spotted dolphins that all have evidence suggesting multiple successful 
immigration events. The pattern of primarily closely related haplotypes 
shown in Hawaiian insular false killer whales is consistent with a 
strong social system or strong habitat specialization that makes 
survival of immigrants or their offspring unlikely. One single 
individual, a male, was found in among Hawaiian insular false killer 
whales with a different haplotype. Although there is no photograph of 
that male to connect it directly to Hawaiian insular false killer 
whales, it was sampled within a group with such strong connections that 
assignment tests could not exclude that it belongs to the insular 
group. Given the low power of the current assignment test (with few 
microsatellite markers), the possibility of immigration (permanent 
membership with Hawaiian insular false killer whales but with an origin 
outside the group) cannot be ruled out. Likewise, the possibility that 
this individual was a temporary visitor (i.e., not a true immigrant) 
from the pelagic population cannot be excluded. The rare haplotype is 
sufficiently distantly related that it seems most plausible that this 
resulted from a separate immigration event (i.e., that immigrants are 
accepted on rare occasions).
    The mtDNA data also show strong differentiation between Hawaiian 
insular false killer whales (n = 81) and both broad-scale strata 
(central North Pacific (n = 13) and eastern North Pacific (n = 39)) and 
fine-scale strata (Hawaiian pelagic (n = 9), Mexico (n = 19), Panama (n 
= 15), and American Samoa (n = 6)). Genetic divergence between the 
Hawaiian insular false killer whales and other strata examined showed 
magnitudes of differentiation that were all consistent with less than 
one migrant per generation. No significant differences were found among 
the main Hawaiian Islands with sufficient data for statistical analysis 
(Hawaii, Oahu, and Maui).
    Nuclear DNA results also showed highly significant differentiation 
among

[[Page 70175]]

the broad and fine strata (Hawaiian insular (n = 69), central North 
Pacific (n = 13), eastern North Pacific (n = 36), Hawaiian pelagic (n = 
9), Mexico (n = 19), Panama (n = 12), and American Samoa (n = 6)). The 
estimates of divergence between the Hawaiian insular strata and other 
strata demonstrate that the magnitude of differentiation was less for 
nDNA than for mtDNA, indicating the potential for some male-mediated 
gene flow. Tests for differences between currently living males and 
females in level of differentiation were not significant for either 
mtDNA or nDNA. However, this test has no ability to detect differences 
in male versus female gene flow in the past. Chivers et al. (2010) give 
a number of hypotheses for the apparently different magnitude of 
signals between mtDNA and nDNA: (1) There is a low level of male-
mediated gene flow that was not apparent because of insufficient 
sampling of nearby groups of false killer whales and/or the test for 
male-mediated gene flow can only detect first-generation male migrants; 
(2) the magnitude of nDNA differentiation is underestimated because of 
the high mutation rate of microsatellites; or (3) the magnitude of 
differentiation is not inconsistent with cases where selection has been 
shown to be strong enough for local adaptation.
    The aforementioned uncertainties will best be resolved with 
additional sampling of nearby pelagic waters. Although the sample 
distribution is improved since the 2007 analysis, it remains poor in 
pelagic areas. The only full-scale cetacean survey of Hawaiian pelagic 
waters resulted in only two sightings of false killer whales in four 
months of effort, and the weather was too poor to obtain any high-
quality identification photographs or biopsies (J. Barlow, pers. comm., 
NMFS SWFSC). Fisheries observers are trained to obtain identification 
photographs and biopsy samples; however, conditions during 
disentanglement usually result in photographs difficult to identify due 
to darkness, and prevent successful biopsy.
    The strongest data with which to evaluate population structure are 
the mtDNA data. Approximately half of the population of Hawaiian 
insular false killer whales has been sampled, and all but one 
individual has one of two closely related haplotypes that have not been 
found elsewhere.
    Chivers et al. (2010) used the analytical method of Piry et al. 
(1999) to test for evidence of a recent decline in abundance within the 
Hawaiian insular population. The analysis takes advantage of the fact 
that when the effective size of a population is reduced, the allelic 
diversity of the population is reduced more rapidly than its 
heterozygosity, resulting in an apparent excess of heterozygosity given 
the number of alleles detected. Chivers et al. (2010) detected 
statistically significant evidence of a recent decline in Hawaiian 
insular false killer whales using this method, with all eight 
microsatellite loci exhibiting heterozygosity excess.
    The microsatellite data were also used to estimate the effective 
population size of Hawaiian insular false killer whales as 46 (95 
percent CI = 32-69). Because this population may have recently declined 
and the animals are long-lived, many of those individuals still alive 
likely were born prior to the decline. Thus, the estimate of effective 
population size is likely too high. Nevertheless, domestic animals have 
been shown to start displaying deleterious genetic effects (lethal or 
semi-lethal traits) when effective population size reaches about 50 
individuals (Franklin, 1980). While negative genetic effects cannot be 
predicted for a group of individuals that are probably naturally 
uncommon with a strong social structure that limits genetic diversity, 
the current low effective population size is a concern.

DPS Determination

    We have determined that Hawaiian insular false killer whales are 
discrete from other false killer whales based on genetic discontinuity 
and behavioral factors (the uniqueness of their behavior related to 
habitat use patterns). We have also determined that Hawaiian insular 
false killer whales are significant to the taxon, based on their unique 
ecological setting, marked genetic characteristic differences, and 
cultural factors.
    Both mitochondrial DNA (mtDNA) and nuclear DNA (nDNA) provide 
support for genetic discontinuity. As explained in the Population 
Structure section of this proposed rule, genetic differentiation was 
examined at different spatial scales. The mtDNA data show strong 
differentiation between Hawaiian insular false killer whales and other 
false killer whale groups at both broad-scale strata (central North 
Pacific and eastern North Pacific) and fine-scale strata (Hawaiian 
pelagic, Mexico, Panama, and American Samoa). The strongest DNA data 
come from mtDNA. The Hawaiian insular false killer whales have 
approximately half of the population sampled, and all but one 
individual has one of the two closely related haplotypes that have not 
been found elsewhere. The BRT concluded that this pattern alone argues 
for a strong possibility of a high degree of separation. Nuclear DNA 
(microsatellite) data are also consistent with little gene flow between 
Hawaiian insular false killer whales and other false killer whales and 
support discreteness. Nuclear DNA results showed highly significant 
differentiation among the Hawaiian insular, North Pacific, eastern 
North Pacific, Hawaiian pelagic, Mexico, Panama, and American Samoa 
strata.
    Hawaiian insular false killer whales are behaviorally unique 
because they are the only population of the species known to have 
movements restricted to the vicinity of an oceanic island group. This 
behavioral separation is supported by their linkage through a tight 
social network, without any linkages to animals outside of the Hawaiian 
Islands. Phylogeographic analysis also indicates an isolated population 
with nearly exclusive haplotypes, and telemetry data show that all 20 
satellite-linked telemetry tagged Hawaiian insular false killer whales 
remained within the main Hawaiian Islands (Baird et al., 2010; Baird et 
al., unpublished data), in contrast with a single tagged pelagic false 
killer whale, which ranged far from shore. Although it is not unusual 
for false killer whales to be observed close to land, long-term history 
of exclusive use of a specific mainland or island system has not been 
documented elsewhere.
    Hawaiian insular false killer whales are significant to the taxon 
based on persistence in a unique ecological setting, marked genetic 
characteristic differences, and cultural factors. Hawaiian insular 
false killer whales persist in an ecological setting unusual or unique 
from other false killer whale populations because they are found 
primarily in island-associated waters that are relatively shallow and 
productive compared to surrounding oligotrophic waters. The following 
lines of evidence supporting this unique ecological setting include: 
Utilization of prey associated with island habitat that may require 
specialized knowledge of locations and seasonal conditions that 
aggregate prey or make them more vulnerable to predation. In an insular 
habitat, such foraging grounds may occur more regularly or in more 
predictable locations than on the high seas. The contaminant levels 
found in insular animals also suggest that both insular false killer 
whales and their prey may be associated with the urban island 
environment. And despite their small population size, the density 
(animals per km\2\) of Hawaiian insular false killer whales is high 
relative to other false killer whale populations, suggesting the

[[Page 70176]]

nearshore habitat or a unique habitat-use strategy may support a higher 
density of animals, which may have implications for differences in 
social structure and interactions within the population or with the 
pelagic population. Additionally, movement and photographic resighting 
data suggest Hawaiian insular false killer whales employ a unique 
foraging strategy compared to other false killer whales.
    Hawaiian insular false killer whales differ markedly from other 
populations of the species in their genetic characteristics. Hawaiian 
insular false killer whales exhibit strong phylogeographic patterns 
that are consistent with local evolution of mitochondrial haplotypes. 
Eighty of 81 individuals had one of two closely related haplotypes 
found nowhere else. These haplotypes are a sequence of a non-coding 
portion of the mtDNA and as such do not provide direct evidence for 
selection. The BRT found that the magnitude of mtDNA differentiation is 
large enough to infer that time has been sufficient and gene flow has 
been low enough to allow adaptation to the local Hawaiian habitat. The 
BRT noted that geneticists use one effective migrant per generation as 
a rule of thumb for the level of gene flow below which adaptation to 
local habitat is likely. Comparisons using mtDNA of the Hawaiian 
insular animals to those in all other geographic strata indicate less 
than one migrant per generation.
    Finally, culture, or knowledge passed through learning from one 
generation to the next, is likely to play an important role in the 
evolutionary potential of false killer whales. The insular population 
contributes to cultural diversity in the species, and this may provide 
the capacity for different amounts of cultural capabilities such as the 
ability of false killer whales to adapt to environmental change. 
Evidence in support of the significance of cultural diversity includes: 
Insular false killer whales may have unique knowledge of nearshore 
foraging areas and foraging tactics that are transmitted through 
learning. Learning is a common feature of other social odontocetes. 
False killer whales are highly social mammals with long interbirth 
intervals and reproductive senescence suggesting transfer of knowledge 
is important to successfully persist in this unique Hawaiian habitat. 
Learning to persist in this unique habitat, and knowing the intricacies 
of localized prey distribution and prey movements, may take many 
generations.
    Overall, the combination of genetic and behavioral discreteness 
coupled with ecological, genetic, and cultural significance led us to 
conclude that Hawaiian insular false killer whales are a DPS. There was 
some uncertainty in the genetic discontinuity factor of the 
discreteness conclusion based primarily on the lack of information on 
the adjacent population of pelagic false killer whales off the coast of 
Hawaii, and due to gaps in genetic sampling to the west of Hawaii. 
However, the BRT did not find this lack of information sufficient to 
alter the significance finding for Hawaiian insular false killer 
whales. We agree with the BRT's conclusion that the Hawaiian insular 
population of the false killer whale is a DPS.

Extinction Risk Assessment

Evaluating Threats

    The BRT qualitatively assessed potential individual threats to 
Hawaiian insular false killer whales and organized its assessment of 
threats according to the five factors listed under ESA section 4(a)(1). 
They evaluated the potential role that each factor may have played in 
the decline of Hawaiian insular false killer whales and the degree to 
which each factor is likely to limit population growth in the 
foreseeable future. Within the five factors, specific threats were 
individually ranked by considering the severity, geographic scope, the 
level of certainty that insular false killer whales are affected, and 
overall current and future (60 years) risk imposed by that threat. 
Consideration of future threats was limited to 60 years duration as 
this corresponds roughly to the life span of a false killer whale and 
represents a biologically relevant time horizon for projecting current 
conditions into the future.
    Section 4(a)(1) of the ESA and NMFS's implementing regulations (50 
CFR 424) state that the agency must determine whether a species is 
endangered or threatened because of any one or a combination of the 
five factors described under the ESA Statutory Provisions. The BRT was 
not asked to determine whether the DPS was endangered or threatened; it 
was only asked to assess the risk of extinction and the impact of 
factors affecting the DPS. The following discussion briefly summarizes 
the BRT's findings regarding threats to the Hawaiian insular false 
killer whale DPS. More details, including how the BRT voted, can be 
found in the status review report (Oleson et al., 2010). Overall, there 
were 29 threats identified to have either a historical, current, or 
future risk to Hawaiian insular false killer whales. Of these, 15 are 
believed to contribute most significantly to the current or future 
decline of Hawaiian insular false killer whales. The following is a 
summary of each of the 15 current and/or future potential threats that 
could result in either a high risk or medium risk of extinction, 
categorized according to the five section 4(a)(1) factors.
A: The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
Reduced Total Prey Biomass and Reduced Prey Size
    The impacts of reduced total prey biomass and reduced prey size 
represent a medium risk for insular false killer whales. Although 
declines in prey biomass were more dramatic in the past when the 
insular false killer whale population may have been higher, the total 
prey abundance remains very low compared to the 1950s and 1960s as 
evidenced by catch-per-unit-effort (CPUE) data from Hawaii longline 
fisheries and biomass estimates from tuna stock assessments (Oleson et 
al., 2010). Long-term declines in prey size from the removal of large 
fish have been recorded from the earliest records to the future (Oleson 
et al., 2010).
Competition With Commercial Fisheries
    Competition with commercial fisheries is rated as a medium level of 
risk to current and future Hawaiian insular false killer whales. This 
risk exists because false killer whale prey includes many of the same 
species targeted by Hawaii's commercial fisheries, especially the 
fisheries for tuna, billfish, wahoo, and mahimahi.
    Until 1980, distant-water longliners from Japan caught between 
1,300 and 5,000 t of tuna and billfish annually within the U.S. EEZ 
around Hawaii (Yong and Wetherall, 1980). Since 1980 no foreign 
longline fishing has been legally conducted in this zone, but the U.S. 
Hawaii-based longline fisheries now harvest similar quantities of tuna 
and billfish in the EEZ. In terms of total hooks deployed by the U.S. 
domestic fisheries, the fisheries declined slightly in the 1960s and 
1970s, and then began to grow again in the 1980s. Total hooks in the 
U.S. EEZ around the main Hawaiian Islands in the period of 1965 and 
1977 were around 1.6 to 2.9 million hooks per year. As the domestic 
fisheries declined in the 1960s and 1970s, foreign fishing in the U.S. 
EEZ around the main Hawaiian Islands increased, and then ceased in 
1980. Domestic longlining was revitalized in the 1980s based on new 
markets for fresh tuna and the introduction of new shallow-set 
swordfish fishing methods.

[[Page 70177]]

Hooks deployed inside the U.S. EEZ around the main Hawaiian Islands in 
the 1990s were double that estimated for the 1970s, and doubled again 
in the 2000s. Participation in the Hawaii longline fisheries 
approximately doubled from 37 vessels in 1987 to 75 in 1989 and doubled 
again to 156 (vessels with permits) by the end of 1991. As the Hawaii-
based longline fisheries expanded during the late 1970s through the 
early 1990s, longline fishing effort increased in waters near the 
Hawaiian Islands and within the range of insular false killer whales. 
The expansion in these nearshore waters within the 40 km core habitat 
of the Hawaiian insular false killer whales was pronounced during an 
influx of new fisheries participants in the late 1980s (Ito, 1991) and 
this led to conflicts in the fishing areas previously dominated by 
troll and handline fishermen. The growing conflict between commercial 
longliners and near-shore troll and handliners was finally resolved in 
1992 with a prohibited area limiting nearshore longlining. Although the 
fraction of total Pacific longline tuna catches that are from the EEZ 
around the main Hawaiian Islands has declined from about half to about 
a quarter over the last two decades, the absolute quantity caught in 
the EEZ continued to increase through 2005, declining moderately 
thereafter (WPRFMC, 2010).
    The present-day Hawaiian insular false killer whale population 
requires an estimated 1.3 to 1.8 million kg of prey per year (Oleson et 
al., 2010). Competition with longline fisheries for potential prey 
within the insular false killer whale habitat seems to have represented 
a higher risk prior to the early 1990s when the longline fisheries were 
harvesting many millions of pounds of fish per year, and where reported 
catch locations were almost all in what is now the longline prohibited 
area. In the core nearshore habitat (<40 km from shore), the troll and 
handline fisheries now harvest as much as is estimated to be consumed 
annually by the Hawaiian insular false killer whale population.
Competition With Recreational Fisheries
    The potential limiting factor of reduced food due to catch removals 
by recreational fisheries was rated lower than for troll, handline, 
shortline, and kaka line fisheries in the status review report (Oleson 
et al., 2010). The BRT did not consider the estimates of recreational 
fishing for pelagic species ranging from 15-25 million lbs (7-11 
million kg) per year for 2003-2008 provided by the Marine Recreational 
Fisheries Survey (WPRFMC, 2010). Although the methods used to 
extrapolate statewide totals from the survey are being overhauled 
following a critical review, and although it is difficult to know what 
proportion of surveyed fishers' catch may be marketed surreptitiously, 
the extrapolated Hawaii recreational fisheries catch totals are many 
times higher than the reported commercial catch totals for the troll, 
handline, shortline, and kaka line fisheries considered by the BRT 
(Oleson et al., 2010). Reported commercial catches may be under-
reported, and some may be included in the recreational estimates, but 
if the nominal recreational estimates from the survey are even somewhat 
representative, then the recreational sector would represent at least 
as much competition for fish as the reported commercial troll handline, 
shortline, and kaka line fisheries. Thus, we believe competition with 
recreational fisheries should be rated as a medium level of current and 
future risk to Hawaiian insular false killer whales.
Natural or Anthropogenic Contaminants
    The threat of the accumulation of natural or anthropogenic 
contaminants, such as exposure to persistent organic pollutants (POPs), 
heavy metals (e.g., mercury, cadmium, lead), chemicals of emerging 
concern (industrial chemicals, current-use pesticides, pharmaceuticals, 
and personal care products), plastics, and oil, is rated as a medium 
level of current and future risk to Hawaiian insular false killer 
whales.
    Many toxic chemical compounds and heavy metals degrade slowly in 
the environment and thus tend to biomagnify in marine ecosystems, 
especially in lipid-rich tissues of top-level predators (McFarland and 
Clarke, 1989). In marine mammals, exposure to high levels of POPs has 
been associated with immunosuppression (Ross et al., 1995; Beckmen et 
al., 2003), reproductive dysfunction (Helle et al., 1976; Subramanian 
et al., 1987), and morphological changes (Zakharov and Yablokov, 1990; 
Sonne et al., 2004). Heavy metals have also been shown to accumulate in 
marine mammals and, in some cases, may cause deleterious biological 
effects, including alterations in steroid synthesis and liver damage 
(O'Hara and O'Shea, 2001). Many of these chemicals have been banned in 
the U.S. from production and use due to their toxic effects on wildlife 
and laboratory animals. As a result, the levels of these compounds in 
marine environmental samples in the U.S. have declined since the bans, 
including fish from Hawaii (Brasher and Wolff, 2004). However, some of 
these chemicals continue to be used in other regions of the world and 
can be transported to other areas via atmospheric transport or ocean 
currents (Fiedler, 2008; van den Berg, 2009). Even though these 
contaminants have been banned in the U.S. for more than 25 years, they 
continue to be measured in marine animals from Hawaii (Hunter, 1995; 
Kimbrough et al., 2008; Ylitalo et al., 2009).
    Independently the threat of bioaccumulation of chemicals is a cause 
for concern, but when coupled with the threat of reduced prey 
quantities or qualities also affected by the contaminants, the risk 
associated with exposure to lipophilic POPs may increase. Thus, animals 
that are nutritionally challenged could be at higher risk as a result 
of increased mobilization of these compounds to other organs where 
damage could result. It is suspected that body condition can influence 
POP burdens in the blubber of marine mammals even though the dynamics 
of blubber POPs during changes in physiological conditions of these 
animals are complex and poorly understood (Aguilar et al., 1999). 
Marine mammals can lose weight during various stages of their life 
cycles due to different stresses such as disease, migration, or reduced 
prey abundance. The mobilization of lipids associated with weight loss 
could result in redistribution of POPs to other tissues, or to 
retention of these compounds in blubber that would result in a 
concentration increase (Aguilar et al., 1999). Thus, animals that are 
nutritionally challenged could be at higher risk as a result of 
increased mobilization of these compounds to other organs where damage 
could result. And although levels of POPs have decreased since their 
bans in the U.S., they continue to be measured in biota from the main 
Hawaiian Islands, including Hawaiian insular false killer whales. 
Recently, summed polychlorinated biphenyls (PCBs) measured in some of 
these whales were above a marine mammal threshold value (17,000 ng/g, 
lipid) associated with deleterious health effects (e.g., thyroid 
dysfunction, immunosuppression) (Kannan et al., 2009).
    With human population growth and increasing commercial development, 
there has been an increased demand for industrial chemicals, current-
use pesticides, pharmaceuticals, and personal care products. Many of 
these chemicals of emerging concern (CECs) are used in high volumes in 
various applications and, as a result, are capable of entering marine 
environments via

[[Page 70178]]

various routes. Currently, it is unclear what risk CECs pose to 
Hawaiian insular false killer whales or their habitat as little is 
known about the current occurrence, fate, and transport of CECs in the 
main Hawaiian Island region.
    Marine litter and debris has become an increasing problem in the 
oceans, with plastic debris being the most abundant (Derraik, 2002). 
Although marine litter has been identified by the BRT as a threat 
related to habitat, it could also be identified as a threat under 
disease as well as other manmade factors. For direct threats to false 
killer whales, ingestion of plastics can obstruct or damage the 
esophagus and the digestive or intestinal tracts, block gastric 
enzymatic secretions, and have other effects that could reduce an 
animal's ability to feed and ultimately its overall fitness (Derraik, 
2002). Ingestion of chemical light sticks used on swordfish longlines 
in Hawaii may pose an additional risk of chemical contamination. There 
is one documented case of ingestion of a net fragment by a false killer 
whale on the British Columbia coast (R. Baird, pers. comm., Cascadia 
Research Collective). For threats related to disease, risks include 
exposure to environmental contaminants contained in plastic resins. For 
threats related to other manmade factors, risks linked to plastic 
debris include entanglement, and introduction of alien species 
(Derraik, 2002; Rios et al., 2007). These threats are not only possible 
for false killer whales, but for their prey as well.
    Oil is made up of thousands of different chemicals and some of the 
most toxic of these petroleum-related compounds are the polycyclic 
aromatic hydrocarbons (PAHs). These compounds are prevalent in coastal 
waters, especially in urban embayments, and have been shown to alter 
normal physiological function in marine biota (Varanasi et al., 1989; 
Stein et al., 1993). Concerns have been raised over the effects of 
exposure to PAHs, alone or in combination with other toxic 
contaminants, in marine mammals because of the worldwide use of fossil 
fuels (Geraci and Aubin, 1990) and the occurrence of oil spills in 
areas that support marine mammal populations. Marine mammals can be 
exposed to oil by various routes, such as inhalation of volatile PAHs, 
direct ingestion of oil, and consumption of contaminated prey (O'Hara 
and O'Shea, 2001). Vertebrates, such as fishes and cetaceans, rapidly 
take up PAHs present in the environment and quickly metabolize these 
compounds. The PAH metabolites are then concentrated in the bile for 
elimination (Varanasi et al., 1989). However, if a marine mammal has 
been exposed to a large amount of petroleum (e.g., after an oil spill) 
and the liver enzyme system has been overwhelmed such that it cannot 
efficiently metabolize the PAHs, there is the possibility that 
petroleum-related PAHs could pose a risk. After the Exxon Valdez oil 
spill in March 1989, several killer whales were observed to transit 
through oiled waters (Dahlheim and Matkin, 1994) in the region and 14 
killer whales (33 percent) from the local AB pod disappeared between 
1989 and 1991. There was no clear evidence to link the oil exposure to 
the disappearance (and presumably deaths) of these whales, but it is 
plausible (Matkin et al., 2008). Oil spills have been reported in the 
main Hawaiian Islands. In May 1996, for example, an oil spill occurred 
in Pearl Harbor after a pipeline broke and spilled more than 25,000 
gallons of oil (Honolulu Star Bulletin, 1996). The impact of this spill 
and other main Hawaiian Island oil spills (e.g., Barbers Point in 2009) 
on Hawaiian insular false killer whales and their prey is not known.
B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    As previously mentioned, this factor may have contributed to the 
historical decline of Hawaiian insular false killer whales with live-
capture operations occurring prior to 1990. However, there are no 
current and/or future threats identified for this listing factor. 
Interactions with fisheries are discussed under Factor D (below).
C: Disease or Predation
Environmental Contaminants or Environmental Changes
    Disease and predation play a role in the success of any population, 
but small populations in particular can be extremely susceptible as 
this threat can have a disproportionate effect on small populations. 
Anthropogenic influences can potentially increase the risk of exposure 
to these pressures by lowering animals' immune system defenses, which 
may have detrimental effects to the population as a whole and result in 
mortality and reduced reproductive potential. Disease-related impacts 
of individual threats, such as exposure to environmental contaminants, 
parasites, pathogens, and harmful algal blooms pose a medium threat to 
Hawaiian insular false killer whales.
    Although little is known about the occurrence of parasites in 
Hawaiian insular false killer whales, Hawaiian monk seals from the main 
Hawaiian Islands were exposed to protozoan and coccidian parasites. 
Discharge of raw or partially treated sewage effluent and contaminated 
freshwater runoff into marine coastal waters can increase the risk of 
pathogen transmission to animals that reside in nearshore areas, such 
as Hawaiian insular false killer whales. Additionally, insular false 
killer whales may be at an increased risk for exposure to biotoxins 
produced during harmful algal blooms (HAB) potentially caused from 
eutrophication and rising ocean temperature. Several Hawaiian monk 
seals died in the late 1970s and these deaths were attributed to 
exposure to the marine biotoxins ciguatoxin and maitotoxin from a HAB. 
HABs appear to be increasing in frequency and geographical distribution 
worldwide and pose a future threat to Hawaiian insular false killer 
whales.
Short and Long-term Climate Change
    The threats from climate change are separated into two parts: In 
this section as it relates to an increase in disease vectors, and in 
Factor E as it relates to changes in sea level, ocean temperature, 
ocean pH, and expansion of low-productivity areas. Climate change poses 
a medium threat to Hawaiian insular false killer whales due to the 
possible increase in disease vectors. Increased water temperature could 
change the composition of microbial communities in the main Hawaiian 
Islands. This may create an environment that could support new microbes 
not usually found in the region, thus exposing Hawaiian insular false 
killer whales to novel pathogens.
D: The Inadequacy of Existing Regulatory Mechanisms
The Lack of Reporting/Observing of Nearshore Fisheries Interactions
    As described previously, a high rate of fin disfigurements (Baird 
and Gorgone, 2005) and other observations suggest interactions between 
fisheries and Hawaiian insular false killer whales. The continued lack 
of reporting/observing of nearshore fisheries interactions with insular 
false killer whales is rated by the BRT as a medium level of current 
and future risk to Hawaiian insular false killer whales. The State of 
Hawaii does not monitor bycatch of marine mammals in any of its state 
fisheries. The federally-managed Hawaii-based shallow-set longline 
fishery maintains approximately 100 percent observer coverage, and the 
federally-managed Hawaii-based deep-set longline fishery maintains 
approximately 20 percent observer coverage. Troll, handline, pole-and-
line,

[[Page 70179]]

shortline, and kaka line fisheries do not have observer coverage, 
whether they are state or federal. Even if all state and federal 
fisheries maintained 100 percent observer coverage, that would likely 
only eliminate possible intentional harm by fishermen; it would not 
necessarily reduce or eliminate incidental hooking or entanglement. 
Although each of these fisheries is required by law under the MMPA to 
report interactions with marine mammals, the low number of reports 
strongly suggests that interactions are occurring and are not being 
reported. However, there is also no way to enforce self-reporting.
The Longline Prohibited Area Not Reversing the Decline of the DPS
    In addition to what the BRT identified as an inadequate regulatory 
mechanism as described above, we considered whether any other 
regulatory mechanisms directly or indirectly address what are deemed as 
the highest threats to the insular DPS: Small population size, and 
hooking, entanglement, or intentional harm by fishermen. Small 
population size is considered a high risk threat because of reduced 
genetic diversity, inbreeding depression, and other Allee effects, but 
these are inherent biological characteristics of the current population 
that cannot be altered by existing regulatory mechanisms. No legal 
protection is in place, nor could one be implemented, to reduce the 
threats of small population size.
    Regarding addressing the high threat of hooking and entanglement, a 
regulatory mechanism exists to partially address this threat from 
commercial longline fisheries. The longline prohibited area around the 
main Hawaiian Islands was implemented in 1992 through Amendment 5 to 
the Western Pacific Pelagic Fisheries Management Plan to alleviate gear 
conflicts between longline fishermen versus handline and troll 
fishermen, charter boat operators, and recreational fishermen. Although 
characterized as a ``25-75 nm'' longline exclusion boundary, the 
boundary was not set at a precise distance from shore and in fact 
varies from 42.4 nm (78.6 km) to 104.4 nm (193.4 km) from shore from 
February through September (median distance 61.1 nm, 113.1 km). For the 
remaining four months of the year (October through January) 
approximately two-thirds (66.3 percent) of the boundary contracts 
towards the islands, such that the boundary ranges from 24.3 nm (45.1 
km) to 104 nm from shore (median distance 48.7 nmi, 90.2 km) (Baird, 
2009).
    Longline fishing has thus been effectively excluded from the 
insular DPS's entire core range (<40 km). This prohibited area thus 
indirectly benefits insular false killer whales by decreasing the 
amount of longline fishing in insular false killer whale habitat. 
However, the decline of the insular DPS has occurred mostly since then, 
in spite of the prohibited area. In addition, and discussed further in 
the Protective Efforts section, the prohibited area is being proposed 
for complete closure to longline fishing out to the current February-
September boundary, year-round. If implemented, this would exclude 
longline fishing from most of the geographic range of the insular stock 
as it is defined in the draft 2010 SAR, including most of the pelagic/
insular stock overlap zone (Carretta et al., 2010). Nevertheless, 
although the longline prohibited area and the proposed expansion, which 
is anticipated to protect the pelagic false killer whale, could also 
benefit the insular DPS by reducing incidental serious injury and 
mortality, there is no evidence that existence of the prohibited area 
is reversing, or will reverse, the decline of the DPS. Thus, this 
regulatory mechanism alone is inadequate to protect the insular DPS of 
Hawaiian false killer whales from further decline and is ranked a high 
risk threat.
    In summary, following a review of the best available information, 
the greatest threats to the species are still insufficiently addressed. 
This is either because the efforts can't or don't address all of the 
threats, or because enforcement of regulatory mechanisms is limited. 
Protective efforts from regulatory mechanisms, such as the MMPA, Clean 
Water Act, etc., are discussed in a later section. However, given the 
size of the U.S. EEZ surrounding the main Hawaiian Islands, adequate 
enforcement of laws in such a vast area is difficult. Therefore, we 
find that existing regulations are inadequate to protect the species 
from further declines throughout all of its range, and thus the 
inadequacy of existing regulatory mechanisms is itself a high threat to 
the Hawaiian insular false killer whale.
E: Other Natural or Manmade Factors Affecting Its Continued Existence
Short and Long-term Climate Change
    Climate change poses a medium threat to Hawaiian insular false 
killer whales and could be manifested in many ways, including changes 
in sea level, ocean temperature, ocean pH, and expansion of low-
productivity areas (i.e., ``dead zones''). Sea level change, however, 
is unlikely to affect false killer whales. In contrast, ocean 
temperature plays a key role in determining habitat for many species, 
and changes in the parameter would likely have a strong impact on false 
killer whales. Many prey species and competitor species have ranges 
closely linked to ocean temperature characteristics, including 
isotherms and gradients. Changes in temperature regimes could have 
severe impacts on pelagic ecosystems, in general. For false killer 
whales, specifically, many of their forage species are migratory and/or 
mobile (i.e., few benthic species) and could alter their distribution. 
The movement of other large predatory marine species' ranges is likely 
to change, which could impact competition with false killer whales. 
However, a much better understanding is needed of prey preferences and 
predator-prey dynamics before speculating on the possible impacts of 
warming or cooling trends on insular false killer whales. Temperature 
may also have a direct linkage to productivity and growth rate, but 
again it remains difficult to establish directionality of net effect.
    Climate change related ocean acidification could alter the 
productivity and composition of the main Hawaiian Island ecosystem. 
Increases in low-productivity areas (e.g., Polovina et al., 2008; 
Brewer and Peltzer, 2009) would probably have the strongest impacts on 
false killer whales. Lower productivity resulting in decreases in 
forage abundance would have a negative impact unless mobile forage 
species were concentrated into smaller regions that could then be 
exploited more easily. Again, presumed effects are large but net 
directionality is difficult to predict. One of the largest unknowns is 
whether the insular population would remain in the same location if 
conditions became less favorable.

Interactions With Commercial Longline Fisheries

    Interactions with commercial longline fisheries was rated as a high 
level of current and/or future risk to Hawaiian insular false killer 
whales. The BRT concluded that the intense and increased fishing 
activity within the known range of insular false killer whales since 
the 1970s suggests a high risk of fisheries interactions, even though 
the extent of interactions with almost all of the fisheries is 
unquantified or unknown. The only fisheries occurring within the range 
of the insular DPS for which there are recent quantitative estimates of 
hooking

[[Page 70180]]

and entanglement of false killer whales are the Hawaii-based federal 
commercial longline fisheries. These fisheries have been largely 
excluded from the known range of Hawaiian insular false killer whales 
since the early 1990s, suggesting the current and future risk from 
longlining (assuming the current restrictions remain in place), 
although high, is somewhat lower compared to the historic risk. It is 
likely that unobserved interactions with these longline fisheries 
represented an even higher risk up until the early 1990s.
    Beginning in 1994, onboard observers in Hawaii-based longline 
fisheries have systematically recorded information on interactions with 
protected species, including marine mammals. Observer coverage 
initially was about 4 percent for all longline effort combined, but 
increased beginning in 1999. Since 2004, observer coverage has been 100 
percent for shallow-set trips and 20 percent for deep-set trips. Both 
fisheries operate on the high seas and within the U.S. EEZ. False 
killer whales have been the most frequently hooked or entangled 
cetacean, primarily during tuna-targeting longline sets (Forney and 
Kobayashi, 2007; McCracken and Forney, 2010). Average mortality and 
serious injury, based on 31 observed interactions between 1994 and 
2008, has been about 13 (CV = 0.37) false killer whales per year 
(calculated from estimates in Forney and Kobayashi, 2007; McCracken and 
Forney, 2010). Eleven additional false killer whales were observed 
injured or killed during 2009 throughout the range of the fisheries.
    Most of the observed interactions with false killer whales in the 
Hawaii-based longline fisheries occurred more than 140 km from the 
Hawaiian Islands, beyond the known range of insular false killer 
whales; however, a few interactions occurred closer to the Hawaiian 
Islands and may have involved insular animals. Following a review of 
insular false killer whale movements and other factors, the 2004 
through 2008 takes have been prorated to insular versus pelagic animals 
based on geographic location (McCracken and Forney, 2010). Given 
current observer coverage levels, only approximately 20 percent of all 
takes are observed and have known locations. Annually during this 5-
year period, one false killer whale was determined to have a non-
serious injury within the 140 km extended range and an average of 0.60 
insular false killer whales were estimated to have been killed or 
seriously injured (McCracken and Forney, 2010). This estimate assumes 
that the probability of taking Hawaiian insular versus pelagic false 
killer whales is proportional to the estimated density of each 
population in the area where the takes occurred (NMFS, 2005). There are 
presently no data available to evaluate this assumption or whether 
there are other potential differences that might cause the two 
populations to behave differently with respect to longline gear. 
Historically, more frequent takes may have occurred when there was much 
greater overlap between insular false killer whales and longline 
fisheries.

Interactions With Troll, Handline, Shortline, and Kaka Line Fisheries

    A high level of current and future risk was found by the BRT for 
these fisheries. This is based on the large scale and distribution of 
the troll and handline fisheries, and on anecdotal reports of 
interactions with cetaceans, although interactions specific to false 
killer whales are known only for the troll fishery. The troll fishery 
has by far the greatest participation and effort in fishing days of any 
fishery within the known range of insular false killer whales, followed 
by the handline fishery, with the kaka line and shortline fisheries a 
distant third and fourth. The kaka line and shortline fishing methods 
have been implicated as a threat based on the similarity of these 
fishing gears and methods to longline fishing. Potential threats 
associated with these activities include hooking or entanglement of 
false killer whales in gear, gear ingestion, direct shooting or injury 
of false killer whales by fishermen, and competition with fisheries for 
prey species, such as tuna and billfish.
    False killer whales have been documented taking catch or bait 
during non-longline commercial and recreational fishing operations 
around the Hawaiian Islands since at least the 1940s (Shallenberger, 
1981; Nitta and Henderson, 1993), but little information is available 
to document the effects of these interactions on false killer whales. 
Animals may become hooked or entangled, and in some cases, fishermen 
have reported shooting at false killer whales and other dolphins or 
using explosives or chemicals to avoid losing catch or bait (Schlais, 
1985; Nitta and Henderson, 1993; TEC, 2009). Based on photographs of 
Hawaiian insular false killer whales, Baird and Gorgone (2005) 
documented a high rate of dorsal fin disfigurements that were 
consistent with injuries from unidentified fishing line (3 out of 80 
individuals or 3.75 percent, compared to 0-0.85 percent for other 
studied cetacean populations). Interactions with false killer whales 
have been reported for troll fisheries (Shallenberger, 1981; Zimmerman, 
1983; Nitta and Henderson, 1993), and possibly shortline or kaka line 
fisheries (anecdotal reports of ``blackfish'' interactions that may 
have been false killer whales; cited in Baird, 2010). Some of these 
recreational fisheries in Hawaii target the same species as commercial 
fisheries (e.g., tuna, billfish) and use the same or similar gear, and 
might also be expected to experience interactions with insular false 
killer whales.
    Although there are only a few published reports of interactions 
between false killer whales and troll fisheries, anecdotal evidence 
indicates that false killer whales have been associated with troll 
fisheries for decades, often taking catch or bait from lines. It is 
unknown whether animals get hooked or entangled in troll gear (as they 
do in longline gear). Fishermen have reported shooting at animals or 
taking other measures to protect their bait, catch, or gear 
(Shallenberger, 1981), although it has been illegal to intentionally 
kill or injure cetaceans since the MMPA was passed in 1972.
    Anecdotal reports indicate that interactions between handline 
fisheries and cetaceans have been common since at least the 1970s. 
Bottlenose dolphins or rough-toothed dolphins (Steno bredanensis) have 
generally been implicated rather than false killer whales. No 
information is available to determine whether handline fishermen shoot 
at cetaceans or take other harmful measures to try to prevent the loss 
of bait or catch, as has been reported for the other fisheries 
(Shallenberger, 1981; Zimmerman, 1983; Nitta and Henderson, 1993). No 
interactions with false killer whales have been reported to NMFS under 
the Marine Mammal Authorization Program (required for fisheries listed 
on the List of Fisheries (LOF)) even though the troll and handline 
fisheries are listed as Category III fisheries. There is currently no 
independent observer reporting system. Self-reporting is the only 
method currently available to document potential marine mammal 
interactions in these fisheries. The shortline fishery was added to the 
LOF in 2010 by analogy as a Category II fishery and the kaka line 
fishery is proposed to be added to the 2011 LOF as a Category III 
fishery. No interactions between the shortline or kaka line fishery and 
false killer whales have been reported to NMFS, and currently there is 
no independent observer program for monitoring bycatch in either the 
shortline or the kaka line fishery. There are anecdotal reports of 
interactions with cetaceans off the north side of

[[Page 70181]]

Maui, but the species and extent of interactions are unknown (74 FR 
58879, Nov. 16, 2009). Based on the similarity of these fisheries to 
longline fisheries (with respect to gear type and target species), it 
is likely that false killer whales are involved; however, the nature 
and extent of any such interactions are unknown. Although there is no 
evidence to suggest a disproportionate threat from the shortline and 
kaka line fisheries compared with other, much larger fisheries 
operating within the known range of insular false killer whales, the 
2008 increase in catch suggests that the shortline fishery could expand 
rapidly.

Small Population Size

    Reduced genetic diversity, inbreeding depression, and other Allee 
effects associated with small population size represent a high risk to 
current and future Hawaiian insular false killer whales. The current 
estimated number of breeding adults (46 individuals) is so small that 
inbreeding depression could have increasingly negative effects on 
population growth rate and other traits, including social factors (such 
as reduced efficiency in group foraging and potential loss of knowledge 
needed to deal with unusual environmental events), may further 
compromise the ability of Hawaiian insular false killer whales to 
recover to healthy levels.
    The processes that cause small populations to have a greater risk 
of extinction include genetic and behavioral problems, as well as 
chance processes like demographic and environmental stochasticity 
(Shaffer, 1981; Gilpin and Soule, 1986; Goodman, 1987; Simberloff, 
1988; Lande, 1993). The decrease in per capita population growth as 
population size declines is often referred to as the ``Allee effect'' 
or ``depensation'' (see references in Oleson et al., 2010) . In 
essence, as the number of individuals decreases there are costs from a 
lack of predator saturation, impaired anti-predator vigilance or 
defence, a breakdown of cooperative feeding, an increased possibility 
of inbreeding depression or other genetic issues, decreased birth rates 
as a result of not finding mates, or a combination of these effects. 
The Allee effect increases risk to small populations directly by 
contributing to the risk of extinction, and indirectly by decreasing 
the rate of recovery of exploited populations and, therefore, 
maintaining populations at a smaller size where extinction risk is 
higher for a variety of reasons (Dennis, 1989; Stephens and Sutherland, 
1999).
    In addition, social odontocetes (such as false killer whales) may 
be particularly vulnerable over and beyond the numerical loss of 
individuals to the population (Wade and Reeves, 2010). Some of these 
effects may act in a similar fashion to Allee effects or have a more 
pronounced effect at low population sizes. Survival and reproductive 
success may depend on such things as social cohesion and social 
organization, mutual aid in defence against predators, and possible 
alloparental care such as ``babysitting'' and communal nursing, 
sufficient opportunities for transfer of ``knowledge'' (learned 
behavior) from one generation to the next, and leadership by older 
individuals that know where and when to find scarce prey resources and 
how to avoid high-risk circumstances (e.g., ice entrapment, stranding, 
predation).
    False killer whales share several life history traits with killer 
whales and belugas that make them prone to problems associated with 
small population size: A low intrinsic growth rate (a consequence of 
late maturity and a low birth rate), strong social structure 
demonstrated through close associations of individuals over long time 
periods, the potential for high adult survival enabled by the 
intergenerational cultural transmission of certain types of awareness 
or specialized behavior, and a low effective population size compared 
to abundance. This last feature leads to low genetic diversity, which 
increases the probability that inbreeding depression will occur at a 
higher level of total abundance than is the case for many other 
species. Franklin (1980) found that inbreeding depression increases 
substantially when the number of reproductive animals becomes fewer 
than 50. The adult population of Hawaiian insular false killer whales 
is likely approaching the level at which the effects of inbreeding 
depression become a factor in determining whether the population is 
able to maintain itself or increase.

Anthropogenic Noise

    Anthropogenic noise, caused from sonar and seismic exploration from 
sources including military, oceanographic, and fishing sonar, is rated 
as a medium level of current and future risk to Hawaiian insular false 
killer whales. Odontocete cetaceans, including false killer whales, 
have a highly evolved acoustic sensory system. False killer whales rely 
heavily on their acoustic sensory capabilities for navigation, 
foraging, and communicating with conspecifics. Potential and measured 
impacts of anthropogenic noise on cetaceans have been reviewed by a 
number of authors (Richardson et al., 1995; Nowacek et al., 2004; 
Hildebrand, 2005; Weilgart, 2007). No specific studies or observations 
of the impacts of noise on wild false killer whales are available. 
However, intense anthropogenic sounds have the potential to interfere 
with the acoustic sensory system of false killer whales by causing 
permanent or temporary hearing loss, thereby masking the reception of 
navigation, foraging, or communication signals, or through disruption 
of reproductive, foraging, or social behavior. Experiments on a captive 
false killer whale have revealed that it is possible to disrupt 
echolocation efficiency in this species with the level of disruption 
related to the specific frequency content of the noise source as well 
as the magnitude and duration of the exposure (Mooney et al., 2009).
    In recent years there has been increasing concern that active sonar 
and seismic operations are harmful to beaked whales (Cox et al., 2006) 
and other cetaceans, including melon-headed whales (Peponocephala 
electra) (Southall et al., 2006), and pygmy killer whales (Feresa 
attenuata) (Wang and Yang, 2006). The use of active sonar from military 
vessels has been implicated in mass strandings of beaked whales and 
delphinids. A 2004 mass-stranding of melon-headed whales in Hanalei 
Bay, Kauai, occurred during a multi-national sonar training event 
around Hawaii (Southall et al., 2006). Although data limitations 
preclude a conclusive finding regarding the role of Navy sonar in 
triggering this event, sonar transmissions were considered a plausible, 
if not likely, cause of the mass stranding. False killer whales have 
been herded using loud sounds in drive fisheries off Japan (Kishiro and 
Kasuya, 1993; Brownell et al., 2008), suggesting that high-intensity 
noise can affect the behavior of false killer whales in Hawaiian 
waters. The U.S. Navy's Hawaii Range Complex surrounds the main 
Hawaiian Islands and is regularly used for training exercises that 
broadcast high-intensity, mid-frequency sonar sounds (U.S. Navy, 2008). 
NMFS regularly reviews these exercises and the potential for exposure 
of mid-frequency sonar and may issue a Letter of Authorization (LOA) 
allowing incidental take (MMPA; 16 USC 1362(18)(B)). In 2010, NMFS 
authorized Level B harassment (i.e., having the potential to disturb) 
for 51 false killer whales; no Level A harassment (i.e., having the 
potential to injure) or mortality was authorized for false killer 
whales.

[[Page 70182]]

Population Viability Analysis

    In addition to the qualitative analysis of possible threats to 
insular false killer whales, the BRT also conducted a quantitative 
analysis of extinction risk using a Population Viability Analysis 
(PVA), a model used to quantify extinction risk by integrating and 
analyzing the various risks a population may face. This PVA was 
conducted to evaluate the probability of actual and near extinction, 
with ``near extinction'' defined as fewer than 20 animals within 75 
years, or three false killer whale generations. The PVA took into 
account measured, estimated, and inferred information on basic life 
history, population size and trends, as well as varying impacts of 
catastrophes, environmental stochasticity, and Allee effects. A variety 
of alternative scenarios were evaluated, and most models indicated a 
probability of greater than 50 percent likelihood of the DPS declining 
to fewer than 20 individuals within 75 years. Even though the 
evaluation of individual threats to the insular population was limited 
to 60 years duration (the approximate lifespan of a false killer 
whale), the PVA results modeled probability of reaching near extinction 
by 50 years (2 generations), 75 years (3 generations), and 125 years (5 
generations). Although 60 years wasn't specifically modeled, the 
results from reaching near extinction by 50 years still showed a high 
risk of extinction for Hawaiian insular false killer whales. The PVA 
results are described in greater detail in Appendix B of the status 
review report (Oleson et al., 2010).

Extinction Risk Assessment Conclusion by the BRT

    Given the results of the PVA analysis and the possible threats to 
the insular population, the BRT agreed by consensus that Hawaiian 
insular false killer whales are at a high risk of extinction due to 
either small-scale incremental impacts over time (e.g., reduced 
fecundity or survivorship due to direct or indirect effects of 
fisheries, and small population size) or a single catastrophic event 
(e.g., disease outbreak). Uncertainty as to the causes of the recent 
decline, the current threats, and current viability of the population 
increases concern for this group of whales.

Summary of Findings

    After considering all elements in the status review report and, in 
particular, the PVA and the five ESA section 4(a)(1) factors, we have 
determined that the Hawaiian insular false killer whale DPS is in 
danger of extinction throughout all of its range. Overall, most PVA 
models indicated a probability of greater than 50 percent likelihood of 
the DPS declining to fewer than 20 individuals within 75 years, which 
would result in functional extinction beyond the point where recovery 
is possible. The risk table provided in the status review report 
identifies small population size, and hooking, entanglement, or 
intentional harm by fishermen as the two threats that pose the most 
significant risk to Hawaiian insular false killer whales, while a 
number of other threats potentially pose a medium and high risk to this 
population. The decline in abundance of Hawaiian insular false killer 
whales likely resulted from a number of factors acting synergistically. 
This description of risk and the level of concern for Hawaiian insular 
false killer whales are similar to those described for other species of 
social odontocetes listed as endangered under the ESA (e.g., Southern 
Resident killer whales and Cook Inlet beluga whales).

Protective Efforts

    Section 4(b)(1)(A) of the ESA requires consideration of efforts 
being made to protect a species that has been petitioned for listing. 
Accordingly, we assessed conservation measures being taken to protect 
the Hawaiian insular false killer whale DPS to determine whether they 
ameliorate this species' extinction risk (50 CFR 424.11(f)). In judging 
the efficacy of conservation efforts, identified in conservation 
agreements, conservation plans, management plans, or similar documents, 
that have yet to be implemented or to show effectiveness, the agency 
considers the following: the substantive, protective, and conservation 
elements of such efforts; the degree of certainty that such efforts 
will reliably be implemented; the degree of certainty that such efforts 
will be effective in furthering the conservation of the species; and 
the presence of monitoring provisions that track the effectiveness of 
recovery efforts, and that inform iterative refinements to management 
as information is accrued (Policy for Evaluating Conservation Efforts 
(PECE); 68 FR 15100).
    The conservation or protective efforts that met the aforementioned 
criteria and are currently in place include the following: (1) Take 
prohibitions under the MMPA; (2) authorization and control of 
incidental take under the MMPA; (3) protection under other statutory 
authorities (i.e., the Clean Water Act, MARPOL); (4) the longline 
prohibited area; (5) Watchable Wildlife Viewing Guidelines; and (6) 
active research programs. The conservation or protective efforts that 
also met the aforementioned criteria but are not yet in place include 
the following: (7) The draft False Killer Whale Take Reduction Plan; 
and (8) possible expansion of the Hawaiian Islands Humpback Whale 
National Marine Sanctuary. Each of these efforts is further described 
below.

(1) Take Prohibitions Under the MMPA

    Various sections of the MMPA provide for protection of false killer 
whales. A goal of the MMPA is to maintain marine mammal species or 
stocks at or above their optimum sustainable population level. The MMPA 
established a moratorium on the taking of marine mammals by any person 
or vessel subject to U.S. jurisdiction. It defines ``take'' to mean 
``to hunt, harass, capture, or kill'' any marine mammal or attempt to 
do so. Exceptions to the moratorium can be made through permitting 
actions for take incidental to commercial fishing and other non-fishing 
activities; for scientific research; and for public display at licensed 
institutions such as aquaria and science centers.

(2) Authorization and Control of Incidental Take Under the MMPA

    In 1981, Congress amended the MMPA to provide for incidental take 
authorizations for maritime activities, provided NMFS found the takings 
would be of small numbers and have no more than a ``negligible impact'' 
on those marine mammal species not listed as depleted under the MMPA 
(i.e., listed under the ESA or below the optimum sustainable 
population). These incidental take authorizations, also known as 
Letters of Authorization or LOAs, have requirements for monitoring and 
reporting, and when appropriate include mitigation measures. Incidental 
take from the use of sonar by the U.S. Navy (Navy) is regulated under 
the MMPA. In 2007, the Navy requested a 5-year LOA for the incidental 
harassment of marine mammals incidental to the training events within 
the Hawaii Range Complex (HRC) for the period July 2008 through July 
2013. The LOA was sought since the training events may expose certain 
marine mammals that may be present within the HRC to sound from hull-
mounted mid-frequency active tactical sonar or to pressures from 
underwater detonations. In 2010, NMFS authorized Level B harassment for 
51 false killer whales; no Level A harassment or mortality was 
authorized for false killer whales. For military readiness activities, 
Level A harassment is defined in the MMPA as ``any act that injures or 
has the

[[Page 70183]]

significant potential to injure a marine mammal or marine mammal stock 
in the wild'', and Level B harassment is defined as ``any act that 
disturbs or is likely to disturb a marine mammal or marine mammal stock 
in the wild by causing disruption of natural behavioral patterns, 
including, but not limited to, migration, surfacing, nursing, breeding, 
feeding, or sheltering, to a point where such behavioral patterns are 
abandoned or significantly altered'' (16 U.S.C. 1362(18)(B)).
    The MMPA has various requirements related to take of marine mammals 
incidental to commercial fisheries. First, section 118 requires NMFS to 
place all U.S. commercial fisheries into one of three categories in the 
LOF based on the level of incidental serious injury and mortality of 
marine mammals occurring in each fishery. The classification of a 
fishery on the LOF determines whether participants in that fishery may 
be required to comply with certain other provisions of the MMPA. Owners 
of vessels or gear engaging in a Category I or II fishery are required 
to register with NMFS and obtain a marine mammal authorization under 
the Marine Mammal Authorization Program to lawfully take a non-
endangered and non-threatened marine mammal incidental to commercial 
fishing. Participants in Category I or II fisheries are also required 
to carry an observer onboard if requested, and comply with any 
applicable take reduction plans. Participants in Category I, II, or III 
fisheries must report to NMFS all incidental injuries and mortalities 
of marine mammals that occur during commercial fishing operations.
    The Hawaii-based deep-set longline fishery is classified as a 
Category I (frequent incidental mortality and serious injury) and has 
20 percent observer coverage; the Hawaii-based shallow-set longline 
fishery and the Hawaii shortline fishery are both classified as 
Category II fisheries (occasional incidental mortality and serious 
injury) and have 100 percent and 0 percent observer coverage, 
respectively. The troll and handline fisheries are all classified as 
Category III fisheries (remote likelihood of/no known incidental 
mortality and serious injury) and the kaka line fishery is proposed to 
be listed as Category III; each has 0 percent observer coverage. 
Compliance with reporting requirements is likely low and reports 
provide only a minimum estimate of the number of interactions. However, 
without observer programs for most of the fisheries, self-reporting of 
incidental take is the only option currently available to document 
interactions.
    The insular population has been designated as the Hawaii insular 
stock for the purposes of management under the MMPA. As of the draft 
2010 SAR (Carretta et al., 2010), the Hawaii insular stock is not 
listed as ``threatened'' or ``endangered'' under the ESA, nor is it 
considered ``depleted'' under the MMPA. In addition, the estimated 
average annual human-caused mortality and serious injury for this stock 
(0.60 animals per year) is slightly less than the potential biological 
removal (PBR) (0.61); therefore, the insular false killer whale stock 
is not considered ``strategic'' under the MMPA. Since the insular stock 
is neither ``depleted'' nor ``strategic'' under the MMPA, no 
conservation plan to foster recovery has been developed.

(3) Protection Under Other Statutory Authorities (i.e., the Clean Water 
Act, MARPOL)

    Other statutory authorities, such as the Federal Clean Water Act 
(CWA) and MARPOL (International Convention for the Prevention of 
Pollution from Ships), offer some protection to Hawaiian insular false 
killer whales. Federal programs carried out under the CWA help to 
ensure that water quality is maintained or improved. Section 402 
(discharge of pollutants into water bodies) regulates activities that 
might degrade false killer whale habitat or prey. Although programs 
carried out under the CWA are well funded and enforcement of this law 
occurs, albeit limited, it is unlikely that programs are sufficient to 
fully protect false killer whale habitat or prey. MARPOL was designed 
to minimize pollution of the seas, including dumping of debris and 
plastics, oil, and exhaust pollution. All ships flagged under countries 
that are signatories to MARPOL are subject to its requirements. 
Although this is an international convention with a large number of 
signatories, the large expanse of the oceans make enforcement of 
illegal marine pollution difficult to enforce.

 (4) The Longline Prohibited Area

    The Main Hawaiian Islands Longline Prohibited Area was implemented 
in 1992 through Amendment 5 to the Western Pacific Pelagic Fisheries 
Management Plan to alleviate gear conflicts between Hawaii-based 
longline fishermen versus handline and troll fishermen, charter boat 
operators, and recreational fishermen. The prohibited area varies from 
25-75 nm offshore seasonally and excludes longline fishing in much of 
the range of the Hawaiian insular false killer whale for 8 months of 
the year. Since implementation of the prohibited area, however, decline 
of the insular DPS has still occurred.

(5) Watchable Wildlife Viewing Guidelines

    Watchable Wildlife Viewing Guidelines exist for other species of 
marine mammals in Hawaiian waters, including false killer whales. The 
recommended distance for observation is 150 ft when on the beaches or 
on the water and 1,000 ft when operating an aircraft. These viewing 
guidelines, however, are only recommendations and are not legally 
enforceable.

(6) Active Research Programs

    Finally, there are a number of active research programs that are 
currently identifying Hawaiian false killer whale data gaps and 
improving our understanding of possible risk factors. For example, 
research priorities include a need for better understanding of 
movements, stock structure, population genetics, contaminant levels, 
etc. Valuable data is being collected, however, data collection and 
analysis can take a considerable amount of time.

(7) Draft False Killer Whale Take Reduction Plan

    The Hawaii pelagic stock of false killer whales was designated as a 
``strategic stock'' in 2000, but is not considered ``depleted'' under 
the MMPA. Current levels of human-caused mortality and serious injury 
(7.3 animals per year) exceed the stocks PBR level (2.5). In 2009 NMFS 
convened a false killer whale take reduction team to develop a Take 
Reduction Plan pursuant to section 118 of the MMPA. The take reduction 
team submitted its consensus recommendations (draft Take Reduction 
Plan, or Plan) to NMFS on July 19, 2010. NMFS is currently evaluating 
the Plan. NMFS will then issue a proposed rule and implementing 
regulations based on the team's recommendations, gather public 
comments, and publish a final rule and implementing regulations in the 
Federal Register.
    The immediate goal of the Plan is to reduce, within 6 months of its 
implementation, incidental mortality and serious injury occurring 
within the U.S. EEZ surrounding the Hawaiian Islands of the Hawaii 
pelagic stock of false killer whales in the Hawaii-based longline 
fisheries to less than the stock's PBR level of 2.5 false killer whales 
per year. The long-term goal of the Plan is to reduce, within 5 years 
of its implementation, the incidental mortality and serious injury of 
the Hawaii pelagic, Hawaii insular, and Palmyra Atoll stocks of false 
killer whales to insignificant levels

[[Page 70184]]

approaching a zero mortality and serious injury rate.
    Although there are other U.S. fisheries that may have incidental 
mortality and serious injury of false killer whales, such as commercial 
and recreational trolling and other hook-and-line fisheries, the Plan 
does not include recommendations for reducing bycatch in these other 
fisheries. Instead, the Plan focuses on the fisheries that are known to 
pose significant risk to the region's stocks of false killer whales.
    The Hawaii insular stock, which is being proposed as the insular 
DPS, is known to interact or geographically (partially) overlap with 
the Hawaii-based longline fisheries. The draft Take Reduction Plan 
contains a recommendation for the year-round closure of a portion of 
the Longline Fishing Prohibited Area that lies to the north of the main 
Hawaiian Islands and is currently open to longline fishing for four 
months of the year. This closure of the northern Prohibited Area, if 
implemented, would exclude longline fishing from most of the geographic 
range of the Hawaii insular stock as it is defined in the draft 2010 
SAR (Carretta et al., 2010). It is anticipated that this proposed 
closure would therefore reduce the incidental serious injury and 
mortality of Hawaiian insular false killer whales in the Hawaii-based 
longline fisheries. Other Take Reduction Plan recommendations include a 
combination of additional area closures to the south of the Hawaiian 
Islands, as well as the use of circle hooks, weak hooks, increased 
observer coverage, and captains' education and outreach, which if 
instituted would primarily benefit pelagic false killer whales outside 
the longline prohibited area, but may also provide some benefits to the 
insular DPS.

(8) Possible Expansion of the Hawaiian Islands Humpback Whale National 
Marine Sanctuary

    With respect to the State of Hawaii, the Hawaiian Islands Humpback 
Whale National Marine Sanctuary is currently undergoing a multi-year 
management plan review to assess the Sanctuary's programs and 
effectiveness. The plan was last revised in 2002 and the Sanctuary is 
required by law to periodically update it. The Sanctuary, formed by 
Congress in 1992, is also proposing to ``expand its scope and direction 
to protect and conserve other living marine resources besides humpback 
whales.'' Currently, only humpback whales (Megaptera novaeangliae) are 
afforded additional Federal protections within the Sanctuary, which 
includes prohibiting approaches closer than 300 ft when on the water 
and 1,000 ft when operating an aircraft (15 CFR 922.184).

Summary of Protective Efforts

    We support all conservation efforts currently in effect and those 
that are planned for the near future, as mentioned above. However, 
these efforts lack the certainty of implementation and effectiveness so 
as to remove or reduce threats specifically to Hawaiian insular false 
killer whales. Specifically, the MMPA, CWA, and MARPOL are all certain 
and effective regulatory measures, but they do not cover indirect or 
cumulative threats, such as non-point source pollution, and enforcement 
capacity is extremely limited in such a vast EEZ around the main 
Hawaiian Islands. The longline prohibited area has also been effective 
by reducing interactions with the insular DPS since 1992, yet 
interactions have still been documented and the total population size 
of the insular DPS has declined since then. The Watchable Wildlife 
Viewing Guidelines are only recommendations and thus aren't legally 
enforceable. The active research programs have gathered valuable data, 
but many data gaps still remain and research is costly and could take 
decades. The draft Take Reduction Plan has not yet been implemented, 
although it will likely be beneficial to the insular DPS. It, however, 
will not address indirect or cumulative effects. Finally, the possible 
expansion of the Hawaiian Islands Humpback Whale National Marine 
Sanctuary is not definite. It is unknown whether false killer whales 
will be added as a species under protection, nor is it certain that it 
will be able to address indirect or cumulative threats. Therefore, we 
have determined that these conservation efforts are not comprehensive 
in addressing the many other issues now confronting insular false 
killer whales (e.g., small population effects) and thus will not alter 
the extinction risk of the species. In developing our final listing 
determination, we will consider the best available information 
concerning these efforts, and any other efforts by the State of Hawaii 
or local entities, for which we have information (see description of 
PECE above).

Proposed Listing Determination

    Section 4(b)(1) of the ESA requires that the listing determination 
be based solely on the best scientific and commercial data available, 
after conducting a review of the status of the species and after taking 
into account those efforts, if any, being made by any state or foreign 
nation to protect and conserve the species. We have reviewed the 
petition, the report of the BRT (Oleson et al., 2010), and other 
available published and unpublished information.
    Based on this review, we agree with the BRT's assessment and 
conclude that the Hawaiian insular false killer whale meets the 
discreteness and significance criteria for a DPS (Oleson et al., 2010). 
The Hawaiian insular false killer whale is discrete from the pelagic 
population based on genetic discontinuity and the uniqueness of its 
behavior related to habitat use patterns. This population of Hawaiian 
false killer whales is significant to the species as a whole based on 
its existence in a unique ecological setting, including diet and 
habitat and how it differs from that of other false killer whales, the 
potential for marked genetic characteristic differences leading to 
adaptive traits, and maintenance of cultural diversity. We also agree 
with the BRT's assessment of possible threats and their current and/or 
future risk to the insular DPS. The greatest threats to the insular 
population are small population effects and hooking, entanglement, or 
intentional harm by fishermen. Lastly, we also agree with the BRT's 
assessment of extinction risk analysis where most PVA models indicated 
a probability of greater than 50 percent likelihood of the DPS 
declining to fewer than 20 individuals within 75 years, which would 
result in functional extinction beyond the point where recovery is 
possible.
    Proposed conservation efforts, including those to protect the 
pelagic population of Hawaiian false killer whales as described in the 
previous section, may also benefit the insular population. Taken 
together, however, we have determined that these conservation efforts 
are not holistic or comprehensive in addressing the many other issues 
now confronting insular false killer whales and thus will not alter the 
extinction risk of the species.
    Based on the best scientific and commercial information available, 
including the status review report, we conclude that the Hawaiian 
insular false killer whale DPS is presently in danger of extinction 
throughout all of its range because of: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range 
(reduced total prey biomass; competition with commercial fisheries; 
competition with recreational fisheries; reduced prey size; and 
accumulation of natural or anthropogenic contaminants); (2) disease or 
predation (exposure to environmental contaminants or environmental 
changes; and increases in

[[Page 70185]]

disease vectors as a result of short and long-term climate); (3) the 
inadequacy of existing regulatory mechanisms (the lack of reporting/
observing of nearshore fisheries interactions; and the longline 
prohibited area not reversing the decline of the insular DPS); and (4) 
other natural or manmade factors affecting its continued existence 
(climate change; hooking, entanglement, or intentional harm by 
fishermen; small population size (reduced genetic diversity, inbreeding 
depression, and other Allee effects); and anthropogenic noise (sonar 
and seismic exploration)). See the ``Summary of Factors Affecting the 
Species'' section above for a description of the specific risks 
associated with section 4(a)(1).
    In sum, future declines in insular population abundance may occur 
as a result of multiple threats, particularly those of small population 
size, and hooking, entanglement, or intentional harm by fishermen. 
Current trends and projections in abundance indicate that the Hawaiian 
insular false killer whale DPS is in danger of extinction throughout 
all of its range. Therefore, we propose to list the Hawaiian insular 
false killer whale DPS as endangered.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery actions (16 U.S.C. 1536(f)), 
Federal agency consultation requirements (16 U.S.C. 1536), critical 
habitat designations, and prohibitions on taking (16 U.S.C. 1538). 
Recognition of the species' plight through listing promotes 
conservation actions by Federal and state agencies, foreign entities, 
private groups, and individuals. Should the proposed listing be made 
final, a recovery plan may be developed, unless such plan would not 
promote the conservation of the species.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA and NMFS/FWS regulations require Federal 
agencies to confer with us on actions likely to jeopardize the 
continued existence of species proposed for listing, or that result in 
the destruction or adverse modification of proposed critical habitat. 
If a proposed species is ultimately listed, Federal agencies must 
consult on any action they authorize, fund, or carry out if those 
actions may affect the listed species or its critical habitat. Examples 
of Federal actions that may affect the Hawaiian insular false killer 
whale DPS include, but are not limited to: Alternative energy projects, 
discharge of pollution from point sources, non-point source pollution, 
contaminated waste and plastic disposal, dredging, pile-driving, water 
quality standards, vessel traffic, aquaculture facilities, military 
activities, and fisheries management practices.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA as: ``(i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the provisions of section 1533 
of this title, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protection; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed in accordance with the provisions of 1533 of this 
title, upon a determination by the Secretary that such areas are 
essential for the conservation of the species'' (16 U.S.C. 1532(5)(A)). 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the ESA is no 
longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA 
requires that, to the maximum extent prudent and determinable, critical 
habitat be designated concurrently with the final listing of a species 
(16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be 
based on the best scientific data available and must take into 
consideration the economic, national security, and other relevant 
impacts of specifying any particular area as critical habitat.
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure that they do not fund, authorize, or carry 
out any actions that are likely to destroy or adversely modify that 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure that their actions do not jeopardize the 
continued existence of listed species.
    At this time, critical habitat is not determinable for the Hawaiian 
insular false killer whale DPS. We are currently compiling information 
to prepare a critical habitat proposal for the Hawaiian insular false 
killer whale DPS in a separate rulemaking. Therefore, we seek public 
input and information to assist in gathering and analyzing the best 
available scientific data to support a critical habitat designation. We 
will continue to meet with co-managers and other stakeholders to review 
this information and the overall designation process. We will then 
initiate rulemaking with the publication of a proposed designation of 
critical habitat in the Federal Register, opening a period for public 
comment and the opportunity for public hearings.
    Joint NMFS/FWS regulations for listing endangered and threatened 
species and designating critical habitat at 50 CFR 424.12(2)(b) state 
that the agency ``shall consider those physical and biological features 
that are essential to the conservation of a given species and that may 
require special management considerations or protection.'' Pursuant to 
the regulations, such requirements include, but are not limited to the 
following: (1) Space for individual and population growth, and for 
normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for breeding, reproduction, rearing of offspring, germination, or 
seed dispersal; and generally (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species. The regulations also state that 
the agency shall focus on the principal biological or physical 
essential features within the specific areas considered for 
designation. These essential features may include, but are not limited 
to: ``roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, host species or 
plant pollinator, geological formation, vegetation type, tide, and 
specific soil types.''

Take Prohibitions

    Because we are proposing to list this species as endangered, all of 
the take prohibitions of section 9(a)(1) of the ESA will apply. These 
include prohibitions against the import, export, use in foreign 
commerce, or ``take'' of the species. ``Take'' is defined under the ESA 
as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct.'' These 
prohibitions apply to all persons subject to the jurisdiction of the 
U.S., including in the U.S. or on the high seas.

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. In December 
2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review establishing minimum peer 
review standards, a transparent process for public disclosure of peer 
review planning, and opportunities for public participation. The OMB 
Bulletin, implemented under

[[Page 70186]]

the Information Quality Act (Pub. L. 106-554), is intended to enhance 
the quality and credibility of the Federal government's scientific 
information, and applies to influential or highly influential 
scientific information disseminated on or after June 16, 2005. To 
satisfy our requirements under the OMB Bulletin, the BRT obtained 
independent peer review of the draft status review report. Independent 
specialists were selected from the academic and scientific community, 
Federal and state agencies, and the private sector for this review. All 
peer reviewer comments were addressed prior to dissemination of the 
final status review report and publication of this proposed rule.
    On July 1, 1994, the NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. Prior to a final listing, NMFS will solicit the expert 
opinions of three qualified specialists selected from the academic and 
scientific community, Federal and state agencies, and the private 
sector on listing recommendations to ensure the best biological and 
commercial information is being used in the decisionmaking process, as 
well as to ensure that reviews by recognized experts are incorporated 
into the review process of rulemakings developed in accordance with the 
requirements of the ESA.

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

    The intent of identifying those activities that would constitute a 
violation of section 9 of the ESA is to increase public awareness of 
the effect of this listing on proposed and ongoing activities within 
the species' range. We will identify, to the extent known at the time 
of the final rule, specific activities that will not be considered 
likely to result in violation of section 9, as well as activities that 
will be considered likely to result in violation. Activities that we 
currently believe could result in violation of section 9 prohibitions 
against ``take'' of the Hawaiian insular false killer whale DPS 
include, but are not limited to, the following: (1) Importation, (2) 
exportation, (3) take, (4) sale, and (5) delivery that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction.

Public Comments Solicited on Listing

    To ensure that the final action resulting from this proposal will 
be as accurate and effective as possible, we solicit comments and 
suggestions from the public, other governmental agencies, the 
scientific community, industry, environmental groups, and any other 
interested parties. Comments are encouraged on this proposal (See DATES 
and ADDRESSES). Specifically, we are interested in information 
regarding: (1) Habitat within the range of the insular DPS that was 
present in the past, but may have been lost over time; (2) biological 
or other relevant data concerning any threats to the Hawaiian insular 
false killer whale DPS; (3) the range, distribution, and abundance of 
the insular DPS; (4) current or planned activities within the range of 
the insular DPS and their possible impact on this DPS; (5) recent 
observations or sampling of the insular DPS; and (6) efforts being made 
to protect the Hawaiian insular false killer whale DPS.

Public Comments Solicited on Critical Habitat

    We request quantitative evaluations describing the quality and 
extent of habitats for the Hawaiian insular false killer whale DPS as 
well as information on areas that may qualify as critical habitat for 
the proposed DPS. Specific areas that include the physical and 
biological features essential to the conservation of the DPS, where 
such features may require special management considerations or 
protection, should be identified. We also solicit biological and 
economic information relevant to making a critical habitat designation 
for the insular DPS. ESA implementing regulations at 50 CFR 424.12(h) 
specify that critical habitat shall not be designated within foreign 
countries or in other areas outside of U.S. jurisdiction. Therefore, we 
request information only on potential areas of critical habitat within 
the U.S. or waters within U.S. jurisdiction.
    Section 4(b)(2) of the ESA requires the Secretary to consider the 
``economic impact, impact on national security, and any other relevant 
impact,'' of designating a particular area as critical habitat. For 
this process, section 4(b)(2) authorizes the Secretary to exclude from 
a critical habitat designation those particular areas where the 
Secretary finds that the benefits of exclusion outweigh the benefits of 
designation, unless excluding that area will result in extinction of 
the species. We seek information regarding the conservation benefits of 
designating areas within the main Hawaiian Islands as critical habitat. 
We also seek information on the economic and other benefits of 
excluding areas from the critical habitat designation, and the economic 
and other benefits of including an area as part of the critical habitat 
designation. In keeping with the guidance provided by the OMB (2000; 
2003), we seek information that would allow us to monetize these 
effects to the extent possible, as well as information on qualitative 
impacts to economic values. We also seek information on impacts to 
national security and any other relevant impacts of designating 
critical habitat in these areas.
    Data reviewed may include, but are not limited to: (1) Scientific 
or commercial publications; (2) administrative reports, maps or other 
graphic materials; (3) information received from experts; and (4) 
comments from interested parties. Comments and data particularly are 
sought concerning: (1) Maps and specific information describing the 
amount, distribution, and use type (e.g., foraging or migration) of the 
Hawaiian insular false killer whale DPS, as well as any additional 
information on occupied and unoccupied habitat areas; (2) the reasons 
why any habitat should or should not be determined to be critical 
habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA; (3) 
information regarding the benefits of designating particular areas as 
critical habitat; (4) current or planned activities in the areas that 
might be proposed for designation and their possible impacts; (5) any 
foreseeable economic or other potential impacts resulting from 
designation, and in particular, any impacts on small entities; (6) 
whether specific unoccupied areas may be essential to provide 
additional habitat areas for the conservation of this DPS; and (7) 
potential peer reviewers for a proposed critical habitat designation, 
including persons with biological and economic expertise relevant to 
the species, region, and designation of critical habitat. We seek 
information regarding critical habitat for the Hawaiian insular false 
killer whale DPS as soon as possible, but no later than February 15, 
2011.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary to promptly hold at 
least one public hearing if any person requests one within 45 days of 
publication of a proposed rule to list a species. Such hearings provide 
the opportunity for interested individuals and parties to give 
opinions, exchange information, and engage in a constructive dialogue

[[Page 70187]]

concerning this proposed rule. We encourage the public's involvement in 
this matter and therefore have scheduled a public hearing to be held in 
Honolulu, Oahu, Hawaii. This public hearing will be held on January 20, 
2011, at the McCoy Pavilion at the Ala Moana Park, 1201 Ala Moana Blvd, 
Honolulu, HI 96814 from 6:30 to 9 p.m. NMFS will consider requests for 
additional public hearings that are made in writing and received (see 
ADDRESSES) by January 31, 2011. If additional public hearings are 
requested and will be held, details regarding location(s), date(s), and 
time(s) will be published in a forthcoming Federal Register notice.

References

    A complete list of all references cited herein is available upon 
request (see FOR FURTHER INFORMATION CONTACT).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (See NOAA Administrative Order 216-6).

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this proposed rule is exempt from review under Executive 
Order 12866. This proposed rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule does not have significant Federalism effects and that a Federalism 
assessment is not required. In keeping with the intent of the 
Administration and Congress to provide continuing and meaningful 
dialogue on issues of mutual state and Federal interest, this proposed 
rule will be given to the relevant state agencies in each state in 
which the species is believed to occur, and those states will be 
invited to comment on this proposal. We have conferred with the state 
of Hawaii in the course of assessing the status of the Hawaiian insular 
false killer DPS, and considered, among other things, Federal, state, 
and local conservation measures. As we proceed, we intend to continue 
engaging in informal and formal contacts with the state, and other 
affected local or regional entities, giving careful consideration to 
all written and oral comments received.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: November 10, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority:  16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


Sec.  224.101  [Amended]

    2. In Sec.  224.101, amend paragraph (b) by adding, ``False killer 
whale (Pseudorca crassidens), Hawaiian insular distinct population 
segment'' in alphabetical order.
[FR Doc. 2010-28843 Filed 11-16-10; 8:45 am]
BILLING CODE 3510-22-P