[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Rules and Regulations]
[Pages 70915-70939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28766]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0912161432-2630-04]
RIN 0648-XT37


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

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

ACTION: Final rule.

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SUMMARY: In response to a petition from the Natural Resources Defense 
Council, we, the NMFS, issue a final determination to list the Main 
Hawaiian Islands insular false killer whale (Pseudorca crassidens) 
distinct population segment (DPS) as an endangered species under the 
Endangered Species Act (ESA). We intend to consider critical habitat 
for this DPS in a separate rulemaking. The effect of this action will 
be to implement the protective features of the ESA to conserve and 
recover this species.

DATES: This final rule is effective on December 28, 2012.

ADDRESSES: National Marine Fisheries Service, Pacific Islands Regional 
Office, Protected Resources Division, 1601 Kapiolani Blvd., Suite 1110, 
Honolulu HI, 96814.

FOR FURTHER INFORMATION CONTACT: Krista Graham, NMFS, Pacific Islands 
Regional Office, 808-944-2238; Lisa van Atta, NMFS, Pacific Islands 
Regional Office, 808-944-2257; or Dwayne Meadows, NMFS, Office of 
Protected Resources, 301-427-8403. The final rule, references, and 
other materials relating to this determination can be found on our Web 
site at http://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html.

SUPPLEMENTARY INFORMATION:

Background

    On October 1, 2009, we received a petition from the Natural 
Resources Defense Council requesting that we list the insular 
population of Hawaiian false killer whales as an endangered species 
under the ESA and designate critical habitat concurrent with listing. 
The petition considered the insular population of Hawaiian false killer 
whales and the Hawaii insular stock of false killer whales recognized 
in the 2008 Stock Assessment Report (SAR) (Carretta et al., 2009) 
(available at http://www.nmfs.noaa.gov/pr/pdfs/sars/ pr/pdfs/sars/), which we 
completed as required by the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.), to be synonymous. However, in light of new 
information in the draft 2012 SAR (Carretta et al., 2012b) that 
identifies a third stock of false killer whales associated with the 
Northwestern Hawaiian Islands (discussed later), for the purposes of 
this listing decision we now refer to the Hawaiian insular false killer 
whale as the Main Hawaiian Islands (MHI) insular population of false 
killer whales.
    On January 5, 2010, we determined that the petitioned action 
presented substantial scientific and commercial information indicating 
that the petitioned action may be warranted, and we requested 
information to assist with a comprehensive status review of the species 
to determine if the MHI insular false killer whale warranted listing 
under the ESA (75 FR 316). A biological review team (BRT; Team) was 
formed to review the status of the species and the report (Oleson et 
al., 2010) (hereafter ``status review report'') was produced and used 
to generate the proposed rule. Please refer to our Web site (see FOR 
FURTHER INFORMATION CONTACT) for access to the status review report and 
the reevaluation of the DPS designation (discussed later), which 
details MHI insular false killer whale biology, ecology, and habitat, 
the DPS determination, past, present, and future potential risk 
factors, and overall extinction risk.
    On November 17, 2010, we proposed to list the MHI insular false 
killer whale DPS as an endangered species under the ESA (75 FR 70169), 
and solicited comments from all interested parties including the 
public, other governmental agencies, the scientific community, 
industry, and environmental groups. Specifically, we requested 
information regarding: (1) Habitat within the range of the insular DPS 
that was present in the past, but may have been lost over time; (2) 
biological or other relevant data concerning any threats to the MHI 
insular false killer whale DPS; (3) the range, distribution, and 
abundance of the insular DPS; (4) current or planned activities within 
the range of the insular DPS and their possible impact on this DPS; (5) 
recent observations or sampling of the insular DPS; and (6) efforts 
being made to protect the MHI insular false killer whale DPS. The 
proposed rule also provides background information on the biology and 
ecology of the MHI insular false killer whale.
    Since the publication of the proposed rule in November 2010, we 
have identified a previously unrecognized Northwestern Hawaiian Islands 
(NWHI) population of false killer whales and have received updated 
satellite tagging information and other new research papers on the MHI 
insular population. The new NWHI population has been identified as a 
separate stock for management purposes in the draft 2012 SAR (Carretta 
et al., 2012b). Because this new information could be relevant to the 
final determination of whether the MHI insular false killer whale 
qualifies as a DPS for listing under the ESA, on September 18, 2012, we 
published a Notice of Availability in the Federal Register (77 FR 
57554) announcing the availability of this new information and the 
reopening of public comment for a 15-day period pertaining to the new 
information. We received comments from 15 commenters during this 
reopened period. Summaries of these comments are included below

[[Page 70916]]

along with public comments received in response to the proposed rule.

Determination of Species Under the ESA

    The ESA defines ``species'' to include subspecies or a DPS of any 
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). 
The FWS and NMFS have adopted a joint policy describing what 
constitutes a DPS of a taxonomic species (61 FR 4722; February 7, 
1996). The joint DPS policy identifies two criteria for making DPS 
determinations: (1) The population must be discrete in relation to the 
remainder of the taxon (species or subspecies) to which it belongs; and 
(2) the population must be significant to the remainder of the taxon to 
which it belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) 
``It is markedly separated from other populations of the same taxon as 
a consequence of physical, physiological, ecological, or behavioral 
factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation''; or (2) ``it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D)'' of the ESA.
    If a population segment is found to be discrete under one or both 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. Considerations under the 
significance criterion may include, but are not limited to: (1) 
``Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon; (2) evidence that the loss of 
the discrete population segment would result in a significant gap in 
the range of a taxon; (3) evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere as an introduced population outside its 
historical range; and (4) evidence that the discrete population segment 
differs markedly from other populations of the species in its genetic 
characteristics'' (61 FR 4725; February 7, 1996).
    The ESA defines an ``endangered species'' as one that is in danger 
of extinction throughout all or a significant portion of its range, and 
a ``threatened species'' as one that is likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range (16 U.S.C. 1532 (6) and (20)). The statute 
requires us to determine whether any species is endangered or 
threatened because of any of the following factors: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence (16 U.S.C. 1533(a)(1)). We are to 
make this determination based solely on the best available scientific 
and commercial information after conducting a review of the status of 
the species and taking into account any efforts being made by states or 
foreign governments to protect the species.

Re-Evaluation of DPS Determination

    The ESA requires that we make listing determinations based solely 
on the best available scientific and commercial information (16 U.S.C. 
1533(b)(1)(A)). Upon consideration of comments raised during the first 
and second public comment period, and upon review of the new NWHI stock 
information and the new research papers identified in the Federal 
Register notice reopening public comment on the proposed rule, and to 
ensure that the best available information was considered, we 
reconvened the BRT. As we did in the original status review, we asked 
them to use the criteria in the joint NMFS-U.S. Fish and Wildlife 
Service DPS policy (61 FR 4722; February 7, 1996), to evaluate whether, 
in light of this new information regarding the NWHI population, and 
other information, the proposed Hawaiian insular false killer whale 
DPS, as previously described, continues to meet the criteria of a DPS. 
The BRT defined a DPS finding as support for discreteness and 
significance by at least five of the eight Team members, and at least 
50 percent of the plausibility points (see the status review report for 
formal methods used for the DPS assessment). The BRT updated and 
reevaluated the original findings with respect to the discreteness and 
significance criteria in light of the new information available since 
the 2010 status review.
    Following an evaluation of all available information on MHI 
insular, NWHI, and pelagic false killer whales, the BRT found that the 
MHI insular population of false killer whales continues to meet the 
discreteness and significance criteria to be considered a DPS under the 
ESA. The BRT's determination of ESA discreteness and significance are 
summarized below. The complete decision analysis can be found in the 
Reevaluation of the DPS Designation for Hawaiian (now Main Hawaiian 
Islands) Insular False Killer Whales (Oleson et al., 2012). Please see 
our Web site (see FOR FURTHER INFORMATION CONTACT) to access this 
document.
    The BRT found that MHI insular false killer whales continue to meet 
the discreteness criteria due to marked separation from other false 
killer whales based on behavioral and genetic factors. This finding is 
supported by evaluation of new information on individual association 
patterns, genetics, phylogeographic analysis, and telemetry data in 
addition to the original information detailed in the proposed rule. In 
particular, MHI insular false killer whales form a tight social 
network, with most identified individuals linked to all others through 
at least two distinct associations and with none of the identified 
individuals linking to animals outside of the nearshore areas of the 
MHI. These association data are strong and relate directly to the 
mating patterns and the resulting genetic patterns that have been 
observed. Further, phylogeographic analysis indicates that the MHI 
insular population is nearly isolated with little, if any, emigration 
of females between adjacent island-associated populations. 
Additionally, significant differences occur in mitochondrial (mtDNA) 
and nuclear DNA (nDNA) between the MHI insular population and the other 
populations, indicating there is little male-mediated gene flow. 
Finally, telemetry studies show all 27 satellite-tagged MHI insular 
false killer whales have remained within the MHI (Baird et al., 2012), 
and consist of three primary social clusters with different primary 
habitats.
    Several BRT members noted that there is still uncertainty about 
false killer whale behavior and the association of the MHI insular and 
NWHI populations; however, the BRT concluded that the weight of the 
evidence continues to strongly support recognition of MHI insular false 
killer whales as behaviorally discrete from other false killer whales 
in the taxon (Oleson et al., 2012).
    Unlike in the original DPS determination the BRT found only weak 
support for finding discreteness based on ecological factors. Although 
movement data continues to indicate that MHI insular false killer 
whales have adapted to a different ecological habitat than their 
pelagic conspecifics, BRT members were less persuaded that this 
ecological setting is unique under the DPS policy, given the existence 
of an

[[Page 70917]]

island-associated population within the NWHI.
    As for the significance criteria, the BRT again found support for 
the conclusion that MHI insular false killer whales are significant to 
the taxon to which they belong. Significance to the taxon was based 
primarily on marked genetic characteristic differences, although weaker 
support for existence in a unique ecological setting and maintenance of 
cultural diversity was also evident. Further, the BRT continued to find 
slightly stronger support for significance based on all three factors 
taken together (Oleson et al., 2012).
    Based on new genetic samples from the MHI, the NWHI and nearby 
central North Pacific areas (Chivers et al., 2011; Martien et al., 
2011), the BRT found stronger support that MHI insular false killer 
whales differ markedly from other populations of the species in their 
genetic characteristics. The magnitude of mitochondrial (mtDNA) 
differentiation is large enough to infer that time has been sufficient 
and gene flow low enough to allow adaptation to MHI insular habitat and 
that the area would not be readily repopulated by pelagic whales 
without such adaptation. MHI insular false killer whales exhibit strong 
phylogeographic patterns that are consistent with a founding event for 
island-associated false killer whales, followed by local evolution of a 
mitochondrial haplotype unique to the MHI insular population. Although 
NWHI false killer whales share one haplotype with MHI insular false 
killer whales, each population is also characterized by its own unique 
daughter haplotype. Occurrence of a unique daughter haplotype within a 
relatively small sample from the NWHI population is significant as 
nearly two-thirds of individuals in the MHI insular population have 
been sampled without any evidence of this haplotype in that population. 
The nDNA also continue to suggest strong differentiation of the MHI 
insular population, perhaps even stronger than in the initial 
evaluation because of new information on whales in the NWHI. A Bayesian 
analysis (using the software program STRUCTURE) using all sampled false 
killer whale populations (Chivers et al., 2011) indicated separation 
into two populations--the MHI insular population and all others, 
including the NWHI island-associated animals. The same STRUCTURE 
analysis indicates that male-mediated gene flow into the MHI insular 
population from false killer whales in other areas, including island-
associated animals in the NWHI, is at a very low level (Oleson et al., 
2012). The nDNA results suggest very low gene flow from other 
populations, such that individually sampled MHI insular false killer 
whales can be genetically assigned to the MHI insular population with 
high likelihood.
    The BRT acknowledged that uncertainty remains in the genetic 
comparisons of the MHI insular population to other Pacific false killer 
whales. Although the MHI insular population is very well sampled with 
roughly two-thirds of the individuals represented, pelagic false killer 
whale genetics contain large sampling gaps to both the west and east of 
Hawaii, and uncertainty remains about the structure of the NWHI 
population. Low levels of male-mediated gene flow were identified based 
on genetic results. Despite these uncertainties, the available sample 
size from Hawaiian false killer whales (MHI, NWHI, and pelagic) is 
substantial and overall the Team felt that significant differences 
based on multiple measures were noteworthy and that it is unlikely that 
new samples will significantly alter the overall story toward more 
similarity between these groups. Therefore, the weight of the evidence 
available was in favor of marked differentiation in genetic 
characteristics between the discrete MHI insular false killer whale 
population and other populations of the species, thus making the MHI 
population significant to the taxon (Oleson et al., 2012).
    In the 2010 status review, the BRT found reasonably strong support 
for significance based on persistence in a unique ecological setting 
and for significance of cultural uniqueness. Both of these factors 
still provide support for the significance determination; however, they 
are weaker than in the initial evaluation, primarily because of 
uncertainties raised with the existence of another island-associated 
population in the NWHI. Factors that support ecological significance 
include the influence of different oceanographic factors, such as 
leeward eddies and freshwater input, which result in localized higher 
productivity in the MHI but which do not occur in the NWHI. Habitat 
analyses indicate that clusters of false killer whales preferentially 
use the northern coast of Molokai and Maui, the north end of the Big 
Island, and a small region southwest of Lanai (Baird et al., 2012). 
This behavior suggests that whales may seek out areas where prey are 
concentrated by local oceanographic conditions. The MHI insular false 
killer whales appear to generally occur closer to land and in shallower 
water than the whales in the NWHI population, which may be related to 
differences in oceanographic conditions in the two locations. The BRT 
noted uncertainty with regard to the relationship between these 
seemingly unique MHI oceanographic processes and the ecology of a 
pelagic predator such as false killer whales. The BRT assigned 
plausibility points in favor of significance based on ecological 
setting, but noted the greater uncertainty about this factor than in 
the original DPS evaluation (Oleson et al., 2012).
    The BRT still found that culture (knowledge passed through learning 
from one generation to the next) is likely to play an important role in 
the evolutionary potential of false killer whales because transmitted 
knowledge may help whales adapt to changes in local habitats. However, 
the finding was weaker than in the previous evaluation due to the lack 
of information on cultural differences between the MHI insular and NWHI 
populations. While some Team members noted that cultural transmission 
is a strong force in social odontocetes, playing a significant role in 
population structure and persistence, others thought that there was 
insufficient evidence of specific differences in cultural aspects of 
the MHI and NWHI populations. Uncertainty was represented within the 
BRT's evaluation of culture, though overall the Team did find weak 
support for cultural significance (Oleson et al., 2012).
    The BRT discussed that while there is independent support for 
ecological and cultural factors for significance, they concluded that 
these factors taken alone do not provide strong support for 
significance of the DPS. However, the combination of ecological and 
cultural factors, taken together with the stronger genetic evidence, 
provided slightly greater support for significance of the DPS than the 
genetics alone by increasing the Team's confidence that the population 
is unique. As in the 2010 status review, the BRT separately evaluated 
the significance criteria based on all of the factors taken together 
and found that the particular combination of qualities makes this 
population unique; the MHI insular population has adapted to this 
particular environment in a way that likely has not and cannot occur 
with this species anywhere else in the world. The BRT emphasizes that, 
even without considering ecological and cultural factors, the 
significance factor is met because MHI insular false killer whales 
differ markedly from other populations of the species in their genetic 
characteristics (Oleson et al., 2012).

[[Page 70918]]

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

Summary of Evaluation of DPS Determination

    The ESA instructs us to rely on the best available science, even 
when that information is uncertain or incomplete. While we acknowledge 
the data gaps detailed in Oleson et al. (2012), we believe that the BRT 
has appropriately considered uncertainty in reaching the DPS finding. 
The data relied upon represents the best available information to NOAA 
in making this determination. Although the dissenting BRT member notes 
that the mitochondrial DNA haplotypes found in the MHI insular could be 
found elsewhere in other unsampled populations, we do not find that the 
mere possibility of such countervailing data is sufficient to overcome 
the DPS finding. We conclude that the evidence supporting discreteness 
and significance based on behavioral and genetic factors, marked 
genetic characteristic differences, existence in a unique ecological 
setting, and maintenance of cultural diversity, respectively, between 
MHI insular false killer whales and their conspecifics supports a DPS 
designation.
    The BRT was not charged to reconsider its earlier extinction risk 
analysis (Oleson et al., 2010), and we have no reason to disturb that 
analysis.
    The public may wish to visit our Web site (see FOR FURTHER 
INFORMATION CONTACT) for a copy of the Reevaluation of the DPS 
Designation for Hawaiian (now Main Hawaiian Islands) Insular False 
Killer Whales (Oleson et al., 2012). This reevaluation summarizes the 
new scientific information available since the completion of the status 
review report in 2010, provides an update on Hawaiian false killer 
whale taxonomy, biology, and ecology, and includes a DPS determination, 
evaluation, and scores.
Relevant Background Information Pertaining to the Marine Mammal 
Protection Act
    Hawaiian insular false killer whales are marine mammals and thus 
protected under the MMPA. Some comments on the proposed rule reference 
issues related to the MMPA and our evaluation of conservation efforts 
considers a number of MMPA programs, so this section briefly provides 
relevant background information. More detailed information on the MMPA 
can be found on our Web site at http://www.nmfs.noaa.gov/pr.
    The MMPA requires stock assessments for each marine mammal stock 
that occurs in U.S. waters. As of the publication of this final rule, 
the most recent stock assessment reports (SARs) are the final 2011 SAR 
and the draft 2012 SAR (Carretta et al., 2012a; 2012b). The final 2012 
SAR is anticipated to be published in the Federal Register in the 
spring or summer of 2013.
    The MMPA requires NMFS to develop and implement take reduction 
plans to assist in the recovery or prevent the depletion of strategic 
marine mammal stocks. Strategic stocks are those for which the level of 
direct human-caused mortality exceeds the potential biological removal 
(PBR) level, which is declining and is likely to be listed as a 
threatened species under the ESA within the foreseeable future, or 
which is listed as a threatened species or endangered species under the 
ESA. PBR is the maximum number of animals, not including natural 
deaths, that can be removed annually from a stock, while allowing that 
stock to reach or maintain its optimum sustainable population level. 
The immediate goal of a take reduction plan is to reduce, within six 
months of its implementation, the incidental mortality or serious 
injury (M&SI) of marine mammals from commercial fishing to levels less 
than the PBR level established for that stock. The long-term goal is to 
reduce, within five years of its implementation, the incidental M&SI of 
marine mammals from commercial fishing operations to insignificant 
levels approaching a zero M&SI rate (50 CFR 229.2 establishes a default 
insignificance value of 10 percent of the PBR for a stock of marine 
mammals). On July 18, 2011, NMFS published a proposed False Killer 
Whale Take Reduction Plan (proposed FKWTRP; 76 FR 42082) to reduce 
serious injuries and mortalities of false killer whales in the Hawaii-
based deep-set and shallow-set longline fisheries. A final Take 
Reduction Plan and implementing regulations are expected shortly.

Summary of Comments Received in Response to the Proposed Rule

    On November 17, 2010, we solicited public comments on the proposed 
listing of the MHI insular false killer whale DPS for a total of 90 
days (75 FR 70169). A public hearing on the proposed rule was held on 
January 20, 2011, in Honolulu, Oahu, Hawaii. We received comments on 
the proposed rule from 53,408 commenters; over 53,000 of these 
submissions were substantially identical form letters. As previously 
mentioned, new information on a NWHI population became available before 
our MHI population final listing determination was made and on 
September 18, 2012, we solicited public comments on that new data (77 
FR 57554). We received comments on the new information from 15 
commenters. Public comments on the proposed rule and on the new 
information are available at: www.regulations.gov (search on ID NOAA-
NMFS-2009-0272-0022). Summaries of the substantive comments received, 
and our responses, are provided below, organized by category.
    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure, and opportunities for public input. Similarly, a joint 
NMFS/FWS policy for peer review in ESA activities requires us to 
solicit independent expert review from at least three qualified 
specialists, concurrent with the public comment period (59 FR 34270; 1 
July 1994). In accordance with these policies, we solicited technical 
review of the proposed rule from three qualified specialists. Comments 
were received from one of the independent experts and those substantive 
comments are addressed below.

Independent Peer Reviewer Comments

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

[[Page 70919]]

    Response: We believe that because the threats referenced by the 
commenter are faced by all cetacean populations they must be 
acknowledged and evaluated in order to fully assess the risk of 
extinction for this population of MHI insular false killer whales. 
Moreover, there is ample evidence that pollutants, anthropogenic noise, 
and environmental contaminants represent a risk to cetacean 
populations. Cetaceans have been found stranded with plastic bags or 
other forms of plastic blocking their airways or in their stomach. 
Shipping noise and military sonar have been repeatedly shown to disrupt 
foraging and communication, as well as cause disorientation or death 
for a variety of species. Environmental contaminants have been shown to 
occur at very high levels in insular false killer whales and are known 
to cause immune system dysfunction in the closely related species, 
killer whales. Therefore, even though individually these factors may 
not be a significant threat to this population, we consider the 
cumulative impact of the threats to be a risk factor based on the best 
available information.
    Comment 2: Mitochondrial DNA (mtDNA) differences between Hawaii 
pelagic and insular populations are quite high. However, the amount of 
nuclear differentiation presented in Chivers et al. (2010) is quite 
low. Furthermore, the nDNA analysis did not correct for multiple 
pairwise tests and when that is done, there is no significant 
differentiation between these two stocks. This suggests there may be 
quite a lot of male-mediated gene flow between these two stocks, 
reducing the support for the discreteness determination. Finally, while 
there is disagreement on the use of the Bonferroni technique for 
controlling for multiple pairwise comparisons, there is little 
disagreement on the need to apply some correction for multiple tests.
    Response: We agree that the amount of nuclear differentiation 
presented in Chivers et al. (2010) is low. Moreover, whether F-st 
(Fixation index--a measure of population differentiation due to genetic 
structure) and its analogs actually measure genetic differentiation is 
currently being debated in the literature. However, the levels detected 
were reasonably within the range of what would be expected from the 
level of mtDNA genetic differentiation detected, when corrected for 
mutation rate. With respect to correcting for multiple pairwise tests, 
the application of a correction factor was not considered appropriate 
because pairwise comparisons of putative populations were considered 
independent and they effectively reduce the Type I error rate. The 
tradeoff of the latter is to increase Type II error rates, and thus the 
risk of erroneously interpreting test statistics. Furthermore, Chivers 
et al. (2011) conducted a Bayesian analysis (STRUCTURE) using all 
sampled false killer whale populations and the results indicated 
separation into two populations--the MHI insular population and all 
others, including the newly recognized NWHI island-associated animals. 
The same STRUCTURE analysis indicates that male-mediated gene flow into 
the MHI insular population from false killer whales in other areas, 
including island-associated animals in the NWHI, is at a very low 
level. The nDNA results suggest very low gene flow from other 
populations, such that individually sampled MHI insular false killer 
whales can be genetically assigned to the MHI insular population with 
high likelihood. Please refer to our responses to Comments 8 and 9 for 
further information.

Public Comments From the First Public Comment Period

    Nearly all public comments received during the first public comment 
period on the proposed rule (75 FR 70169; November 17, 2010) were some 
form of a form letter or petition and were in favor of listing the MHI 
insular false killer whale DPS as an endangered species. With respect 
to the remaining public comments, which were substantive, we have 
responded to these through our general responses below. Substantive 
comments were received from seven groups: two research, conservation, 
and education groups; the Humane Society; the Marine Mammal Commission; 
the State of Hawaii; the Western Pacific Regional Fishery Management 
Council; and the Hawaii Longline Association.
    In the proposed rule, we solicited information from the public to 
inform the designation of critical habitat in the event the DPS was 
listed. The comments received concerning critical habitat are not 
germane to this listing decision and will not be addressed in this 
final rule. They will instead be addressed during any subsequent 
rulemaking on critical habitat for the MHI insular false killer whale 
DPS.

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

    Comment 3: One commenter questioned the legal standards of the 
proposed rule, stating that applicable law requires NMFS, at a minimum, 
to provide its interpretation of the ``endangered'' definition; explain 
how its interpretation conforms to the text, structure, and legislative 
history of the ESA; explain how its interpretation is consistent with 
judicial interpretations of the ESA; explain how its interpretation 
serves policy objectives; and address whether its interpretation could 
undermine those policy objectives. The commenter stated that because 
the proposed rule fails to engage in this analysis, NMFS must 
reconsider the proposed rule and re-issue a new proposed rule or a not 
warranted finding.
    Response: Section 4 of the ESA requires us to determine whether any 
species is an endangered species or a threatened species because of any 
of the ESA section 4(a)(1) listing factors. An ``endangered species'' 
is ``any species which is in danger of extinction throughout all or a 
significant portion of its range.'' A ``threatened species'' is ``any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' In the proposed rule, we explained the present demographic 
risks establishing that the [MHI] insular false killer whale is ``in 
danger of extinction'' and therefore should be listed as 
``endangered.''
    We disagree that case decisions, including In re Polar Bear 
Endangered Species Act Listing and Section 4(d) Rule Litigation, 748 F. 
Supp. 2d 19 (D.D.C. 2010), indicate that the proposed rule was 
insufficient with respect to defining ``endangered'' and 
``threatened.'' The legislative history of the ESA indicates Congress 
left to the discretion of the Services (NMFS and the U.S. Fish and 
Wildlife Service; collectively ``Services'') the task of giving meaning 
to the terms through the process of case-specific analyses that 
necessarily depend on the Services' expertise to make the highly fact-
specific decisions to list species as endangered or threatened. The 
polar bear decision confirmed this interpretation and specifically 
noted that the inherent ambiguity in the definition of ``endangered 
species'' affords the listing agency flexibility when adapting the 
policy to fit ``infinitely variable conditions,'' based on its 
technical expertise in the area and on the specific facts of the case. 
Id. at 27 (quoting Lichter v. United States, 334 U.S. 742, 785 (1948)). 
Far from requiring an agency to set forth a particular definition, the 
court noted that the agency has broad discretion to determine species' 
status in light of the five statutory listing requirements of ESA 
section 4. Id. at 28.
    Although Congress did not seek to make any single factor 
controlling when

[[Page 70920]]

drawing the distinction, Congress included a ``temporal element to the 
distinction between the categories.'' In Re Polar Bear Endangered 
Species Act Listing and Section 4(d) Rule Litigation, 794 F. Supp. 2d 
65, 85 n.24, 89 & n.27 (D.D.C. 2011). Accordingly, in the context of 
the ESA, we interpret an ``endangered species'' to be one that is 
presently at risk of extinction. A ``threatened species,'' on the other 
hand, is not currently at risk of extinction, but is likely to become 
so. In other words, a key statutory difference between a threatened and 
endangered species is the timing of when a species may be in danger of 
extinction, either now (endangered) or in the foreseeable future 
(threatened).
    In this case, we applied a case-specific interpretation of 
``endangered'' and utilized the best available data to analyze the ESA 
section 4 factors in light of the MHI insular false killer whale's 
particular circumstances. This approach conforms with the ESA's 
requirement for species-specific status reviews (16 U.S.C. 
1533(b)(1)(A)). Whether a species is ultimately listed as an endangered 
species depends on the specific life history and ecology of the 
species, the nature of the threats, the species' response to those 
threats, and population numbers and trends.
    In the proposed rule, we explained that the [MHI] insular false 
killer whale population is presently in danger of extinction due to a 
number of currently-existing ESA section 4 risk factors. For example, 
we noted that its small population size when compared to historical 
data indicates that the population has declined over the last two 
decades, and small populations are particularly susceptible to 
environmental threats and inbreeding depression. The population is 
genetically isolated from both the Hawaiian pelagic and the NWHI false 
killer whales, with little gene flow into the MHI insular population 
from other areas. The MHI insular false killer whale exhibits strong 
habitat specialization and social structure, rendering the population 
vulnerable to competition for resources and habitat in relatively 
shallow waters, and to loss of individual members with corresponding 
loss of knowledge transfer within the population. Competition with 
fisheries, interactions with fisheries, the impacts of reduced total 
prey biomass, and contaminants are also risk factors for the population 
and its habitat.
    In light of the foregoing, we believe that MHI insular false killer 
whales have experienced a decline in numbers as a result of factors 
that have not been abated, that show no evidence of stabilization, and 
currently place the population in danger of extinction. Any event that 
reduces survival (e.g., disease outbreak, oil spill) can adversely 
affect the entire group because: the whales reproduce only every 6 or 7 
years and become reproductively senescent in their mid-40s; the 
estimated effective population size is only about 50 breeding adults 
(Chivers et al., 2010; Martien et al., 2011); they are genetically 
isolated from the pelagic and the NWHI population; and because 
individual false killer whales are usually near their group and in 
close association with one another. Moreover, the DPS historically has 
faced or currently/in the future faces 29 potential threats, 15 of 
which are significant and 2 of which are most significant (including 
small population effects, and hooking, entanglement, and acts of 
prohibited take by fishers).
    Finally, the BRT determined, and we agree, that the small 
population size and evidence of a decline in the species, combined with 
several factors that are likely to continue to have, or have the 
potential to adversely impact the population in the near future, 
describe a population that is at high risk of extinction. High risk of 
extinction was defined by the BRT as within 3 generations (75 years) or 
the maximum age, whichever is greater, that there is at least a 5 
percent chance of the population falling below a level where recovery 
is not likely. Because false killer whales are highly social animals, 
this level was set at 20 animals, which is about the average group 
size.
    The imminence of these threats is just one factor to be weighed in 
this process. Although we find a high risk of extinction where there is 
at least a 5 percent chance of the population falling below a level 
where recovery is not likely, in this case we found that most 
Population Viability Analysis (PVA) models exceeded the 5 percent 
chance of extinction in 75 years by a very wide margin, with most 
indicating a greater-than-90 percent chance of extinction within 3 
generations (Oleson et al., 2010). This population level would result 
in functional extinction beyond the point where recovery is possible. 
Accordingly, we have determined that this DPS warrants listing as an 
endangered species under the ESA because it is currently in danger of 
becoming extinct within three generations.
    Comment 4: One commenter questioned the use of the best available 
scientific and commercial data, stating that the proposed listing of 
the Hawaiian insular false killer whale is based, in large part, on 
``uncertain or inconclusive'' information. The commenter noted that 
available information regarding stock structure, range, and abundance 
of Hawaiian insular false killer whales is significantly limited, 
contains substantial data gaps, and is low in confidence and high in 
uncertainty.
    Response: Listing decisions under ESA section 4 are to be made 
utilizing the best scientific and commercial data available (16 U.S.C. 
1533(b)(1)(A)). This standard ensures that the agency will not 
disregard available scientific evidence that is in some way better than 
the information it relies upon. However, scientific uncertainty is 
present in nearly every listing decision, and NMFS is not foreclosed 
from making a decision that is based on, in whole or in part, 
incomplete or imperfect scientific information.
    NMFS acknowledges that while there are substantial data gaps for 
some aspects of MHI insular false killer whale ecology and abundance, 
the available data do allow a proper assessment of whether this 
population is a DPS. Uncertainty and alternative viewpoints are 
explicitly acknowledged by the BRT in the original DPS analysis and are 
described in Appendix A of the status review report, as well as in the 
Reevaluation of the DPS Designation for Hawaiian (now Main Hawaiian 
Islands) Insular False Killer Whales (Oleson et al., 2012). The best 
available data shows that the DPS is presently in danger of extinction 
because of meeting four of the five ESA section 4(a)(1)(b) factors, 
including significant demographic risks as explained in our Response to 
Comments 3 and 9. As such, we find that the DPS warrants listing as 
endangered.

Status of the Main Hawaiian Islands Insular False Killer Whale DPS

    Comment 5: The State of Hawaii was concerned about the profound 
effects to state programs from listing the Hawaiian insular false 
killer whale DPS as an endangered species.
    Response: We acknowledge that listing the Hawaiian insular false 
killer whale DPS as an endangered species could potentially affect 
State of Hawaii programs, and we would work with the State to minimize 
associated impacts.
    We are working with the State of Hawaii through an ESA section 6 
cooperative agreement and grant funding to prevent and document 
nearshore fishery interactions with Hawaiian monk seals and sea 
turtles. The State is evaluating fishery interactions in mainly shore-
based hook-and-line gear and gillnets, and is characterizing these 
fisheries in terms of

[[Page 70921]]

their effort, gear, target species, and likelihood of impacts to 
protected species. Through the cooperative agreement, the State is 
developing a pilot take reporting and monitoring system, and assessing 
current and future regulatory and non-regulatory alternatives for 
fishery take reduction and monitoring. The State, in coordination with 
the NMFS Pacific Island Regional Office and NMFS Pacific Islands 
Fisheries Science Center, also provides education and outreach to 
Hawaii's fishermen on protected species, including communication with 
sport and commercial fishing organizations and clubs, as well as 
environmental groups. Through listing the MHI insular false killer 
whale under the ESA there is the potential to expand the scope of 
Hawaii's ESA section 6 cooperative agreement to include this species.
    We will continue to work with the State of Hawaii and other 
partners to assess and address marine mammal interactions in state-
managed fisheries.
    Comment 6: One commenter asserted that as the science continues to 
develop, it is becoming more apparent that insular and pelagic false 
killer whales overlap and intermingle throughout a significant portion 
of their range. Thus, the best available evidence is too uncertain to 
designate the insular population as a DPS.
    Response: NMFS disagrees that the data are too uncertain to 
designate the MHI insular population as a DPS. NMFS does acknowledge, 
however, that recent satellite-telemetry studies, and as stated in the 
draft 2012 SAR (Carretta et al., 2012b), the insular and pelagic 
populations of false killer whales do overlap in their geographic range 
from 40 km to 140 km off the Main Hawaiian Islands. Additionally, the 
draft 2012 SAR (Carretta et al., 2012b) identifies a new island-
associated population of false killer whales that inhabits the NWHI, 
and photo-identification and satellite tagging results suggest that 
false killer whales from the NWHI population geographically overlap 
with MHI insular false killer whales near Kauai (Baird et al., 2012; 
Carretta et al., 2012b). Despite the geographic overlap, significant 
differences in the populations exist as described in the DPS 
reevaluation discussed above and in Oleson et al. (2012). Therefore, 
although insular and pelagic populations may geographically 
``intermingle'' with one another (as well as with the NWHI population), 
the assertion that insular and pelagic false killer whales genetically 
``intermingle'' is not supported (nor do they genetically 
``intermingle'' with NWHI false killer whales), and this is further 
discussed in response to Comment 7 (below).
    Comment 7: Similar to Comment 2 made by the peer reviewer, one 
public commenter asserted that nDNA purportedly supporting discreteness 
is not consistent with Chivers et al. (2010), stating that while the 
authors found that limited mtDNA samples provided some suggestion of 
discreteness, the nDNA data does not suggest discreteness.
    Response: NMFS disagrees with the commenter's characterization of 
the Chivers et al. (2010) data. Chivers et al. (2010) (and also Chivers 
et al., 2011) does show strong differentiation in maternally-inherited 
mtDNA between the MHI insular and the other adjacent NWHI and pelagic 
populations. This indicates there is little, if any, emigration of 
females between these populations. Additionally, Chivers et al. (2011) 
found that there are significant differences in nDNA between the MHI 
insular and the other populations, indicating there is little male-
mediated gene flow (either emigrating or mating), from any other 
population including island-associated NWHI animals. The MHI population 
is as different from the NWHI population as it is from the other more 
distant strata (supported by both F-st and Structure results). These 
data are consistent with the notion of two insular Hawaiian populations 
that now have little gene flow and that represent a mtDNA lineage that 
has been separated from all other false killer whale populations for a 
substantial period of time (Oleson et al., 2012).

Threats to the Main Hawaiian Islands Insular False Killer Whale DPS

    Comment 8: One commenter included five recommendations for 
protecting Hawaiian insular false killer whales from fisheries 
interactions: 100 percent observer coverage in the Hawaii-based 
longline fisheries; the required use of circle or weak hooks; 
prohibiting longline fishing within the entire range of the Hawaiian 
insular population of false killer whales; establishing a false killer 
whale sightings reporting system; and addressing potential impacts of 
inshore fisheries through the False Killer Whale Take Reduction Team 
(FKWTRT).
    Response: This action concerns the listing decision for the MHI 
insular false killer whale under the ESA; the development of 
conservation and management measures for protecting the DPS from 
fisheries interactions is beyond the scope of this rulemaking. However, 
NMFS is finalizing a take reduction plan to reduce commercial fishery 
impacts on Hawaii's pelagic and MHI insular whales. The public may 
access a copy of the proposed plan and proposed implementing 
regulations from our Web site (see FOR FURTHER INFORMATION CONTACT). We 
will also prepare a recovery plan for the species after the species is 
listed.
    Comment 9: One commenter felt that while it is difficult to address 
threats posed by reduced genetic diversity or the as yet unquantified 
impacts from climate change, the degree to which these threaten the DPS 
should be further studied.
    Response: The ongoing and potentially changing nature of pervasive 
threats, in particular, effects from climate change, potential limits 
on prey availability, and reduced genetic diversity, certainly need to 
be further studied especially given uncertain future ocean conditions. 
These and other risks are unlikely to decline (and are likely to 
increase in the future). And while the population may not be naturally 
large compared to other cetaceans, the population has decreased, and 
thus the intensity of the threats is increased by the small number of 
animals currently in the population. The combination of factors 
responsible for past population declines are uncertain, may continue to 
persist, and could worsen before conservation actions are successful, 
which could potentially preclude a substantial population increase. In 
sum, we concur that all threats should continue to be further studied.
    Comment 10: One commenter felt that a biased interpretation of prey 
abundance and competition based on fishery-dependent catch-per-unit-
effort (CPUE) data resulted in exaggerated threats. The commenter felt 
that alternative explanations of changes in CPUE and prey size were not 
considered or analyzed by NMFS.
    Response: This commenter's suggested alternative explanations of 
CPUE changes (e.g., altered handline targeting) are not supported by 
any existing analysis or publications, and are speculative. All 
information and interpretation of Hawaii pelagic fish abundance come 
from CPUE data and commercial fish catch size data. No independent 
analysis of biomass is possible, given the data currently available, 
except the more thorough stock-wide assessments that include Hawaii 
fish. Stock-wide assessments also use semi-independent tagging data, 
and evaluate alternative analyses of CPUE changes with various CPUE 
standardizations, all suggesting reduced population biomass. The level 
of risk is assigned based on credibility, with acknowledged high 
uncertainty. We therefore disagree that the interpretation

[[Page 70922]]

of prey abundance and competition based on use of CPUE metrics is 
exaggerated.
    Comment 11: Several commenters asserted that the proposed rule 
unjustifiably assigns the commercial longline fishery as having a 
higher risk to insular false killer whales, compared to the risk 
assigned to it in the status review report completed by the BRT. 
Another commenter stated there is an incorrect assessment of alleged 
interactions between commercial longline fisheries and insular false 
killer whales, stating there is no evidence showing that commercial 
longline fisheries have ever had an interaction with an insular animal, 
despite high rates of observer coverage; that there has been only one 
documented interaction with a false killer whale that occurred in or 
near the geographic range identified for the insular stock and that 
interaction was classified as non-serious; and that the interaction, 
for which no genetic sample was obtained, likely involved a pelagic 
animal since the best available science does not reasonably support the 
conclusion that the interaction involved an insular population animal. 
Finally, this commenter stated that NMFS' attribution of that 
interaction to the insular stock directly contradicts a statement (from 
what we assume is from the status review report, although the exact 
quote is not in the status review report) that ``false killer whale 
bycatch or sightings by observers aboard fishing vessels cannot be 
attributed to the insular population when no identification photographs 
or genetic samples are obtained.''
    Response: NMFS disagrees that only one interaction has occurred and 
that it is outside the insular population boundary. In the shallow-set 
fishery between 2000 and 2011, there were no interactions with false 
killer whales or ``blackfish'' in the insular-pelagic overlap zone. 
However, in the deep-set longline fishery between 2000 and 2011 there 
were three observed interactions with false killer whales within the 
insular-pelagic stock overlap zone (two serious injuries in 2003, and 
one non-serious injury in 2006). There have also been three observed 
interactions within the overlap zone with unidentified ``blackfish'' 
(serious injuries in 2003 and 2006, and one in 2005 where injury 
severity could not be determined (McCracken, 2010a; 2010b; 2011; 
Forney, 2010; 2011; NMFS, unpublished data). Blackfish interactions are 
now prorated to species and counted in mortality and serious injury 
estimates for false killer whales and pilot whales in the draft 2012 
SAR (Carretta et al., 2012b). Based on these data, the most recent 
estimate of total annual interactions with the MHI insular population 
between 2006 and 2010 is estimated at 0.50 animals per year (Carretta 
et al., 2012b).
    It is correct, however, that no genetic samples are available from 
animals that have interacted with the fishery within the insular-
pelagic population overlap zone. Genetic sampling provides a useful and 
reliable method for positively accounting for marine mammal 
interactions, but like identification photographs, the method is 
available for only a small fraction of bycaught individuals. 
Accordingly, the lack of genetic evidence raises uncertainty in the 
estimates of actual interaction rates; it does not suggest that 
interactions with the MHI insular stock are not occurring. The average 
annual rate of mortality and serious injury (M&SI) of insular false 
killer whales over the past 5 years of available data is 0.50 animals 
per year as of the draft 2012 SAR (based on data from 2006-2010, 
Carretta et al., 2012b). The M&SI estimates are based on proration of 
interactions to the stock within the overlap zone where both insular 
and pelagic stocks are known to exist, as well as proration of 
``blackfish'' interactions to false killer whales and pilot whales. 
(Please refer to the response to Comment 8 for information on the 
distribution of the populations within the overlap zone, which 
discusses how the populations are not uniformly distributed within the 
overlap zone but show a gradient.) Proration is an accepted method for 
assigning mortality and serious injury to a species and stock (NMFS, 
2005) and reflects the best information available to us on the rate of 
interaction between the MHI insular stock and the deep-set longline 
fishery.
    The potential biological removal (PBR) level for the MHI insular 
population was recently revised to 0.30 whales per year in the draft 
2012 SAR (Carretta et al., 2012b). The estimated rate of interaction 
from longline fisheries alone exceeds PBR, and this stock is considered 
``strategic'' under the MMPA. Refer to responses to Comments 14 and 15 
for more information on PBR.
    Finally, the statement from the status review report is taken out 
of context. The correct quote follows from discussion of population 
attribution based on aerial surveys and states ``* * * sightings of 
false killer whales by observers aboard fishing vessels cannot be 
attributed to the insular population when no identification photographs 
are obtained.'' The statement refers only to the inability to assess 
population range based on fishery observer sightings, not to 
appropriate methods for prorating bycatch, nor to the potential for 
bycatch from the MHI insular stock given its occurrence within the 
insular-pelagic overlap zone.
    Comment 12: One commenter asserted that direct and indirect 
inferences of commercial longline fishery interactions with the insular 
population are not supported. According to the commenter, each of the 
following statements is speculative and lacks factual support: ``a few 
interactions closer to the Main Hawaiian Islands may have involved 
insular animals''; ``historically more frequent interactions may have 
occurred''; with reference to the longline exclusion zone, ``decline of 
the insular DPS has still occurred''; and ``the greatest threats to the 
insular population are small population effects and hooking, 
entanglement, or intentional harm by fishermen.''
    Response: The statement ``a few interactions closer to the Main 
Hawaiian Islands may have involved insular animals'' is factually 
correct. Based on the objective application of criteria in the draft 
2012 SAR (Carretta et al., 2012b), meaning specifically using the 
location of an interaction to prorate the probability of the 
interaction with an insular animal within the overlap zone, we conclude 
that interactions are occurring with MHI insular false killer whales 
within the insular-pelagic overlap zone based on the geographic range 
of the population. Refer to response to Comment 11 for more information 
on interactions between the deep-set longline fishery and insular 
animals.
    As for the quote ``historically more frequent interactions may have 
occurred,'' the statement continues with ``* * * when there was much 
greater overlap between insular false killer whales and longline 
fisheries.'' Prior to the longlining exclusion zone it is likely that 
there were interactions between longline fisheries and insular false 
killer whales, given the considerable amount of fishing effort within 
the population's range. There are no data available to evaluate the 
level of interactions before 1992, but it is not unreasonable to infer 
that they may have occurred.
    Regarding the statement that a ``decline of the insular DPS has 
still occurred,'' based on false killer whale encounter rates from the 
aerial survey data in the 1990s and early 2000s, a downward trend in 
sightings does suggest a decline in the population, even after the 
longline exclusion zone was enacted in 1992.

[[Page 70923]]

    With respect to the statement ``the greatest threats to insulars 
are small population effects and hooking, entanglement, or intentional 
harm by fishermen,'' this is the finding of the BRT and we generally 
concur in the risk analysis, based on all available data and 
appropriate consideration of uncertainty in each factor. As discussed 
in the response to Comment 30, although we are aware of reports 
alleging intentional harm by shooting, a review of agency records does 
not substantiate these allegations. We do, however, have records 
documenting unauthorized takes by fishing crew in order to discourage 
marine mammals from depredating catch. For example, two observer 
reports document the intentional discharge of diesel oil into ocean 
waters, which is reasonably likely to result in take of protected 
marine mammal species including the MHI insular false killer whale.
    Comment 13: One commenter stated that the draft FKWTRP submitted to 
NMFS by the FKWTRT in July 2010 includes the extension of the longline 
exclusion zone to essentially the full range of the insular stock. The 
commenter concluded that this measure effectively eliminates any risk 
that the deep and shallow-set longline fisheries may pose to the 
insular population and, therefore, the fisheries operating pursuant to 
this draft FKWTRP would not affect, or are not likely to adversely 
affect, insulars and, thus, the proposed rule directly contradicts this 
with no reasonable explanation.
    Response: NMFS disagrees that the draft FKWTRP eliminates all risk 
that fisheries may pose to the insular population. It is correct that 
the FKWTRT noted in their consensus recommendations to NMFS (draft 
FKWTRP) that an extension of the existing longline exclusion zone 
(i.e., prohibiting longline fishing year-round in the area where it was 
previously closed only seasonally) would ``effectively eliminate any 
risk the deep and shallow-set longline fisheries may pose to the 
insular stock of false killer whales.'' It is important to note, 
however, that this was the FKWTRT's statement and not necessarily the 
position of the Agency.
    NMFS' FKWTRP proposed rule would include the extension of the 
boundaries of the year-round prohibited area for longline fishing (the 
``Main Hawaiian Islands Longline Fishing Prohibited Area''). The 
objective of the FKWTRP is to reduce impacts of commercial fisheries on 
strategic false killer whale stocks to below each stock's PBR within 
six months, and ultimately to negligible levels.
    However, in the FKWTRP proposed rule, NMFS did not suggest that the 
risk to insular false killer whales from longline fishing would be 
eliminated. NMFS believes that not all risk to the MHI insular 
population has been eliminated because longlining would still be 
allowed within a portion of the insular-pelagic overlap zone, and 
because longline fishing is not the only risk factor impacting the 
population, as discussed further below.
    As described in the response to Comment 8 above, since 1992, 
longline fishing has been excluded year-round from the entire core 
range of the MHI insular population and part of the extended range 
(i.e., the area of overlap between the MHI insular and Hawaiian pelagic 
populations), and further excluded seasonally (February-September) in a 
large portion of the insular population's extended range. The proposed 
revised boundary of the Main Hawaiian Islands Longline Fishing 
Prohibited Area (via the FKWTRP) would further restrict longlining 
year-round within a portion of the insular population's extended range 
where longline fishing previously had been allowed between October and 
January.
    Additionally, the Southern Exclusion Zone (SEZ), if triggered by a 
specified number of observed Hawaii pelagic false killer whale 
mortalities or serious injuries in the Hawaii-based deep-set longline 
fishery, would close an area south of the Main Hawaiian Islands within 
the EEZ to deep-set longline fishing. The SEZ would include a small 
portion of the insular-pelagic overlap zone in which longline fishing 
is currently allowed. This closure would offer additional protections 
from hooking or entanglement in the deep-set longline fishery to any 
MHI insular false killer whales in the overlap zone when the SEZ is 
closed.
    As discussed above in the response to Comment 4, other measures 
such as the proposed use of circle hooks with a wire diameter of less 
than or equal to 4.5 mm (0.177 in) in the deep-set longline fishery, if 
implemented, are expected to further mitigate this risk.
    However, the proposed revision of the Main Hawaiian Islands 
longline fishing prohibited area boundaries would leave approximately 
26 percent of the insular-pelagic overlap zone open to longline 
fishing, at the offshore edges of the overlap zone (53,992 km\2\ or 
15,742 nm\2\). Even if the SEZ were also closed, 15 percent of the 
overlap zone would still remain open to longline fishing. Accordingly, 
even though the FKWTRP is intended to increase protections for MHI 
insular false killer whales from interactions with longline fishing, 
this regulatory measure would not eliminate all risks from commercial 
longline fishing.
    Although the objectives of MMPA section 118 complement the 
conservation goals of the ESA, we do not believe that the protections 
afforded by the FKWTRP proposed rule would be sufficient to obviate the 
need for ESA listing. The FKWTRP proposed rule would not address all 
other identified threats to insulars, even from commercial fisheries. 
As discussed elsewhere, the MHI insular stock also faces risk by virtue 
of its low population numbers, inbreeding depression, genetic 
isolation, contaminants, and disease, among others. We therefore 
conclude that listing under the ESA is appropriate and necessary.
    Comment 14: One commenter felt that with respect to longline 
commercial fishery interactions, the best available science and 
information does not support a conclusion other than commercial 
longline fisheries do not pose a threat to insular stock animals. The 
commenter asserts NMFS' conclusions and inferences are arbitrary, 
capricious, and inconsistent with the best available science.
    Response: We disagree with both assertions in the commenter's 
statement. Commercial longline fisheries geographically overlap with a 
small portion of the range of the MHI insular population, thereby 
posing a risk. In addition, and as discussed in response to Comments 
11, 12, 13, and 16, there are takes of MHI insular false killer whales 
in commercial longline fisheries, and they exceed PBR. As reflected in 
the 2011 SAR and in the draft 2012 SAR, the stock is considered to be 
strategic (Carretta et al., 2012a; 2012b). Moreover, as discussed in 
the status review report, reduced total prey biomass and reduced prey 
size also pose a risk to the insular population. Although declines in 
prey biomass were more dramatic in the past when the insular population 
may have been higher, the total prey abundance remains very low 
compared to the 1950s and 1960s as evidenced by 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). As such, it is not appropriate to 
conclude that commercial longline fisheries pose no threat to this 
population.
    Comment 15: One commenter quoted the proposed rule, which states 
that ``the longline prohibited area has also been effective by reducing 
interactions with the insular DPS since 1992, yet

[[Page 70924]]

interactions have still been documented and the total population size 
of the insular DPS has declined since then.'' The commenter indicated 
that the statement was untrue because there had been no documented 
interactions since 1992, and that the statement implies that longline 
fisheries are somehow responsible for the supposed decline. The 
commenter felt that despite zero documented interactions, NMFS 
concludes that not only do longline fisheries interact with the insular 
population, but that they do so to a degree that has caused, and still 
causes, a decline in the population.
    Response: As discussed in the status review report, the intense and 
increased fishing activity within the known range of MHI insular false 
killer whales since the 1970s suggests a significant risk of fisheries 
interactions, even though the extent of interactions with almost all of 
the fisheries is unquantified or unknown. The only fishery for which 
there are recent quantitative estimates of hooking and entanglement of 
false killer whales is the commercial longline fishery. We note that 
the pelagic stock of false killer whales has been documented to 
interact with observed longline fisheries at a rate well above its PBR. 
Although the longline fishery has been largely excluded from the known 
range of MHI insular false killer whales since the early 1990s, there 
remains a risk of interaction in the overlap zone (see Response to 
Comment 14). The deep-set longline fishery does interact with MHI 
insular false killer whales in the overlap zone, and these interactions 
have been prorated to MHI insular and pelagic stocks (see Response to 
Comment 11). Furthermore, evidence of dorsal fin scarring and 
disfigurements indicates that the MHI insular false killer whales 
remain at risk from fisheries. These injuries cannot be definitively 
attributed to one specific fishery, but the possibility that the 
injuries are from the longline fishery cannot be discounted. Given this 
information, we do not agree that no interactions have occurred since 
1992. We also believe that because of this information, fishery 
interactions, including those in longline fisheries, have played a role 
in the decline of the MHI insular population.
    Comment 16: One commenter cautioned that the role of prey reduction 
in the insular population's decline and potential recovery may have 
been underestimated. It was recommended to further investigate fishery-
related reductions of the target fish stocks and the manner in which 
those reductions are realized on a spatial basis, and how those 
reductions coincide with or may affect the foraging of insular false 
killer whales.
    Response: We agree with this recommendation and will look at ways 
to further investigate prey reduction and possible effects to false 
killer whales.
    Comment 17: One commenter submitted a number of comments relating 
to prey competition. The commenter stated that NMFS asserts that 
competition for prey with fisheries is a threat, but fails to make a 
causal connection establishing that fisheries compete with the insular 
population for prey or that insular animals are nutritionally 
distressed or otherwise suffering from a supposed lack of prey. The 
commenter asserted that the best available information shows that prey 
competition, if any, between commercial longline fisheries and insulars 
poses no risk to insulars. The commenter stated that commercial 
longline fisheries fish almost exclusively outside the insulars' range 
and entirely outside of areas in which insulars have been satellite 
tracked; the proposed rule suggests competition for bigeye tuna is a 
threat to insulars yet no animal has been observed feeding on bigeye 
and this is consistent with data showing that bigeye are not abundant 
in nearshore areas inhabited by insulars; the status review report 
states that ``stock assessments clearly outline a similar pattern of 
substantially declining biomass in the 1960s to 1970s'' for bigeye and 
yellowfin tuna, however, this statement refers to the Western and 
Central Pacific tuna stocks generally and says nothing about abundance 
and presence of those species in the nearshore insular waters. In sum, 
the commenter felt that the link between prey reduction allegedly 
caused by longline fisheries and the insular population is not based on 
any scientific data or information and to suggest this as a medium risk 
is directly contrary to the best available science. Finally, the 
commenter felt that comments on prey competition submitted by the 
Western Pacific Regional Fishery Management Council (Council) in 
response to the 90-day finding do not appear to have been considered in 
the status review report or proposed rule.
    Response: As discussed in greater detail in the status review 
report, it is clear based on observations of fish predation by insular 
false killer whales that fisheries and false killer whales do target 
many of the same fish species. Insular false killer whales have been 
observed feeding on yellowfin, albacore and skipjack tuna, scrawled 
file fish, broadbill swordfish, mahimahi, wahoo, lustrous pomfret, and 
threadfin jack (Baird, 2009). Many of these fish species are highly 
mobile, such that large-scale fisheries impact their populations, even 
if no commercial longlining is occurring within the majority of the MHI 
insular false killer whale population's range.
    Although evidence of nutritional stress is difficult to obtain, the 
BRT notes that prey abundance and size have been dramatically reduced 
over the past five decades (Oleson et al., 2010). It is also important 
to note that the level of fish removal by fisheries reduces the biomass 
of fish to a point that insular false killer whales may need to search 
over a greater area or for a longer period of time to find enough food, 
thereby expending more energy to find enough prey to meet their daily 
dietary needs. These dietary needs have been described in greater 
detail in the status review report, but to summarize, this was 
calculated for MHI insulars and, though it depends on the whale 
population age structure used, approximately 2.9 to 3.9 million pounds 
of fish would be consumed annually by MHI insular false killer whales. 
For comparison, this quantity of fish is similar to the current annual 
retained catch in the commercial troll fishery, which targets species 
such as marlin, mahimahi, wahoo, and yellowfin and skipjack tuna, and 
three to four times greater than the annual catch in the Main Hawaiian 
Islands handline fishery, which targets yellowfin tuna (Oleson et al., 
2010).
    As for the prey reduction ``allegedly'' caused by longline 
fisheries, the role of longline fishing in reducing yellowfin and 
bigeye tuna population biomass throughout the range of the populations 
is well documented. The substantial reduction in the population biomass 
of these tuna, and other prey of the MHI insular population, poses a 
medium risk. The lack of precision in estimates is acknowledged by the 
BRT and we concur. Current exclusion of the longline fishery from the 
majority of the MHI insular population's range does not mean that 
localized reductions by the longline fishery, continued fishing of 
highly mobile pelagic prey by commercial fisheries, or continued local 
reductions by nearshore fisheries would not be impacting MHI insular 
false killer whales.
    Zimmerman (1983) reports the loss of bigeye tuna from nearshore 
troll and longline fisherman by a false killer whale. Although there 
are no photographic or genetic records from the animal with which to 
determine whether it is from the MHI insular or pelagic population, the 
report of this loss of fish occurred in Hawaiian nearshore waters, 
suggesting a MHI

[[Page 70925]]

insular animal. That a false killer whale depredated bigeye from 
longlines indicates that bigeye is part of the diet, and therefore 
longline catch would be in competition with the whale for this 
resource. The relative proportion of MHI insular false killer whale 
diet that is composed of bigeye tuna is unknown.
    As for the status review report, the reference to the stock 
assessments' ``similar pattern'' is in relation to the documented 
similarity of the decline in the CPUE data for local Hawaiian fisheries 
since the 1950s. The simplest explanation of long-term yellowfin and 
bigeye tuna CPUE declines, both local and stock-wide, is declining 
biomass. Other possible partial explanations for declining CPUE have 
been evaluated in the stock-wide assessments, which conclude that the 
CPUE trends do reflect substantial biomass declines. The cited 
assessments include Hawaii in their geographic extent, and the Hawaii 
longline CPUE data in their analysis. For highly mobile tuna 
populations, changes in the stock-wide biomass are reflected in local 
biomass. There are no separate tuna populations in insular Hawaiian 
waters.
    Finally, the comments received in response to the 90-day finding 
from the Council were considered but were found to be inaccurate, as 
they did not account for a complete assessment of historical fisheries 
information. The Council did, however, reiterate these concerns in 
their comments on the proposed rule, and those comments are addressed 
individually throughout this document.
    Comment 18: The State of Hawaii noted that the kaka line and 
shortline fisheries are assessed as high risk, although the 
characterization of both are further qualified and ranked as a 
``distant third and fourth.'' The State also hoped that in the 
formulation of requirements, that these fisheries not be lumped with 
the troll fishery, which has significantly more potential for 
interaction based on numbers of fishers and the frequency of fishing. 
Finally, the State of Hawaii noted that the shortline fishery is listed 
as a Category II fishery in NOAA's 2011 List of Fisheries (LOF), and 
the kaka line is categorized as a Category III fishery. The State was 
concerned that the proposed listing does not rely upon this fishery 
listing assessment to determine the level of risk that has been 
characterized for the stock.
    Response: The above quote was misinterpreted by the commenter. The 
sentence refers to the amount of effort in the fisheries and not risk 
from the fisheries. More specifically, the quote refers to how the 
troll fishery has by far the greatest participation and effort in 
fishing days of any fishery within the known range of MHI insular false 
killer whales, followed by the handline fishery, with the kaka line and 
shortline fisheries having the third and fourth greatest amount of 
effort. Collectively, they all are rated as a high overall threat 
level.
    With respect to the formulation of fishing requirements, any 
potential future requirements would be addressed through separate MMPA, 
or ESA processes.
    Finally, as for relying on the NMFS 2011 LOF listing assessment to 
determine the level of risk that has been characterized for the 
Category II shortline fishery (``occasional'' incidental mortality and 
serious injury), and the Category III kaka line fishery (``remote'' 
incidental mortality and serious injury), the BRT did consider the 
category listing of both. However, the BRT decided to collectively 
include all nearshore commercial and recreational fisheries, including 
troll, handline, shortline, and kaka line, under a single threat of 
interactions with these fisheries as it relates to the limiting factor 
of hooking, entanglement, or acts of prohibited take. This decision was 
based on the fact that some 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 false killer whales. However, it is possible that 
some of the stationary gears such as kaka line and short longline are a 
much greater risk to false killer whales than the troll fishery, as 
interaction is not necessarily a matter of magnitude of effort or hours 
on the water or number of hooks. The nature of the fishery operation 
puts it in different categories of likely interactions. We therefore 
concur with the approach used by the BRT.

The Range, Distribution, and Abundance of the Main Hawaiian Islands 
Insular False Killer Whale DPS

    Comment 19: One commenter provided information that an additional 
367 identifications (i.e., including re-sightings) of false killer 
whales from 19 different encounters around the Main Hawaiian Islands 
are now available. All of these encounters were of individuals from the 
MHI insular population, and the high re-sighting rate and lack of 
matches to the pelagic population provides further support that this is 
a small, socially-isolated population. In addition, the commenter 
stated that new data from 2009 and 2010 satellite tags further 
demonstrate that this is an exclusively island-associated population. 
Further analysis of data will help provide an assessment of critical 
habitat. Another commenter provided sighting data from within Maui 
County waters and stated that gathering and sharing data about Hawaiian 
false killer whales is an increasing priority.
    Response: We appreciate this new information and agree that 
collecting and sharing data is vital so that the status of the species 
can be reevaluated on a regular basis. The BRT has reviewed the 
satellite-tagging and photo-identification data, and we concur that the 
information supports the DPS determination.
    Comment 20: One commenter provided a number of general comments on 
the historical abundance of insulars. Specifically, the commenter 
stated that there was a lack of critical evaluation of the historical 
abundance, particularly the 1989 aerial survey, resulting in an 
inflated estimate of abundance prior to 1989, thus resulting in almost 
all model projections leading to extinction. The commenter also felt 
that the results of the PVA models would be less pessimistic had the 
BRT provided more realistic estimates of historical abundance and had 
critically reviewed the aerial survey results from 1989 and 1993 to 
1997.
    Response: The BRT chose current false killer whale densities at 
Palmyra Atoll as a potential indicator of historical abundance because 
the oceanographic productivity there is thought to be similar to that 
found in the nearshore environment of the MHI. The trend in the PVA is 
derived using both the estimates of historical abundance, as well as 
the decline in encounter rates during the aerial surveys in the 1990s 
and early 2000s. A number of PVAs were run that considered lower 
historical abundance and greater uncertainty in historical abundance, 
with all models leading to relatively high extinction probabilities 
within 75 years, which is equivalent to 3 generations.
    With respect to the 1989 survey, Sensitivity trial 3, detailed in 
Appendix 2 of the status review report, ignored the 1989 aerial survey 
estimate or any other derivation of historical abundance, specifying a 
large distribution for historical abundance. This trial indicated a 100 
percent certainty of functional extinction within 75 years, higher than 
the probability estimated from the base model. This demonstrates a high 
probability of extinction even when this aerial survey data is not 
included in the analysis. Overall, however, the extinction risk 
conclusions are based upon the entirety of the

[[Page 70926]]

evidence, not the outcome of a single PVA trial or population estimate.
    Comment 21: One commenter provided a number of comments pertaining 
to the inadequate justification for the use of Palmyra Atoll density, 
which was extrapolated out to the 202,000 km\2\ area within 140 km of 
the MHI to ascertain a plausible historical abundance of insulars. 
Comments included that Palmyra Atoll was used solely on the basis that 
it is the highest reported density of the species; Palmyra Atoll is 
situated in more productive equatorial waters than the sub-tropical 
Hawaii, but no comparison of availability and abundance of prey species 
around Palmyra Atoll is made with those around Hawaii; the density of 
Palmyra Atoll is applied uniformly to the 202,000 km\2\ areas within 
140 km of the MHI, even though a core range within 40 km of the MHI is 
acknowledged, thus resulting in an extremely inflated estimated 
historical abundance; it is likely that Palmyra Atoll historically has 
had higher densities of false killer whales than in the MHI and thus 
Palmyra Atoll density is likely not the appropriate density to use in 
estimating historical abundance; if the insular population is so 
distinct then a comparison to other populations cannot be made; and 
finally, NMFS suggests the Palmyra Atoll estimate is conservative 
because known longlining occurs and false killer whales are known to 
become seriously injured or die as a result, and in reaching this 
erroneous conclusion, NMFS fails to disclose that there was only one 
observed serious injury from 2004 to 2008 and that the estimated 
mortality and serious injury rate is 0.3 which is far below the Palmyra 
population PBR of 6.4.
    Response: In addition to the response provided in Comment 20 about 
why the BRT chose current false killer whale densities at Palmyra Atoll 
as a potential indicator of historical abundance, there is some 
information available on tuna abundance near Palmyra, which suggests 
similar species composition (mix of bigeye tuna and yellowfin tuna) as 
around Hawaii (Howell and Kobayashi, 2006). Additionally, while it is 
true that equatorial productivity can be quite high, the latitude of 
Palmyra places it marginally northward of that primary feature of 
equatorial productivity.
    As for the density of Palmyra Atoll applied uniformly within the 
140 km of the MHI, despite there being a core range within 40 km, the 
current boundary of the MHI insular false killer whale population is 
140 km from the MHI. And while the existence of gradients or hotpots in 
overall density of MHI insular animals within that boundary have not 
been identified, it would be inappropriate to discount potentially 
large numbers of animals that could reside in the overlap zone between 
40 and 140 km from shore.
    As for genetic similarities or differences and its relevance to 
comparing populations, Palmyra Atoll whales are genetically distinct 
from Hawaii pelagic and MHI insular whales. However, there is no 
evidence that the genetic differences at Palmyra affect density. Since 
the data from Palmyra is otherwise the best available comparison for 
inferring historical density, we have used it in our assessment of 
extinction risk.
    The BRT acknowledged that the historical abundance of MHI insular 
false killer whales is unknown. The MHI insular population density is 
among the highest in the tropical Pacific for this species, such that 
it is inappropriate to use the density from any other lower density 
region as a proxy for historical abundance. Although the EEZ 
surrounding Palmyra Atoll is more productive than the Hawaiian EEZ, 
higher productivity near the MHI could support similar densities of 
fish and false killer whales as a similar area in the Palmyra EEZ. 
Overall, information from the Palmyra Atoll stock provides a proxy for 
what the historical population density may have been within the MHI 
insular stock. Even if population density information from Palmyra is 
ignored, it is clear that the MHI insular stock has declined. 
Sensitivity trials 2 and 3 of the PVA assess the extinction risk for 
alternative plausible scenarios that do not rely on the density 
estimate from Palmyra Atoll.
    As for PBR at Palmyra Atoll, the 2004 and 2005 false killer whale 
SARs indicate that historic interaction rates at Palmyra Atoll used to 
be as much as an order of magnitude higher than they are now. 
Therefore, the Palmyra Atoll density estimate was already impacted by 
fisheries and thus is lower than its pristine estimate, making the 
current density estimate in fact conservative. Moreover, serious injury 
and mortality rates at Palmyra Atoll were not the subject of the status 
review report; however, review of historical take information for 
Palmyra indicates that four false killer whales have been observed to 
be seriously injured or killed there since 2001 (one in 2001, two in 
2002, and one in 2007 (Forney, 2010)).
    Comment 22: One commenter provided a number of comments questioning 
the large groups of false killer whales observed in the 1989 aerial 
surveys. The commenter cautioned against the use of these results for 
the following reasons: inability to confirm the species of sighted 
animals due to lost photographic records; lack of genetic or other 
evidence to conclude that the documented large groups of false killer 
whales were associated with the insular population; and lack of 
replicated results supporting the existence of large groups of false 
killer whales in 1989. The commenter also noted that, while it is 
acknowledged that there could have been a short-term influx of pelagic 
animals, it is not acknowledged or considered that they could have been 
other species, such as melon-headed whales, and that without 
photographic evidence, the claim is anecdotal.
    Response: Although photographic records are not available to 
confirm the species identification for the large groups observed in 
1989, the experience of the two observers during that survey is 
unparalleled, with one of the two observers, Dr. Stephen Leatherwood, 
writing the guidebook on field identification of blackfish (false 
killer whales, melon-headed whales, pygmy killer whales, and pilot 
whales) (note that ``blackfish'' here is different from ``blackfish'' 
taken in the Hawaii-based longline fisheries, which refers only to 
false killer whales and short-finned pilot whales). The BRT discussed 
the species identification and felt there was little reason to question 
the judgment of the two observers during the aerial survey given their 
high level of expertise. We agree.
    The BRT acknowledged the possibility that the large groups observed 
in 1989 might have represented an influx of animals from the pelagic 
population. This uncertainty is represented in the BRT plausibility 
scores for the parameterization of the PVA, as seen in the Appendix to 
the status review report. No other surveys for false killer whales were 
conducted in the 1980s until Mobley began flying aerial surveys in 
1993. Observers noted three large groups during the 1989 survey on 
three different days, confirming that, at least within the short period 
of the 1989 survey, large groups of false killer whales did occur close 
to the MHI.
    Comment 23: In addition to the comments above (in Comments 20 and 
22) about the 1989 aerial survey, a number of other comments pertained 
to this topic. One commenter believed the point-estimate from 1989 to 
be unrealistic when considering the population estimate of 121 based on 
the 1993 to 1997 aerial surveys. The commenter asserted that the 
abundance

[[Page 70927]]

estimate of 121 appears to be simply ignored, and when it is 
considered, a dramatic decline of nearly 600 animals in the 4-year 
period from 1989 (based on the point-estimate of 769), suggests a 
large-scale mortality event in a very short time, for which no concrete 
evidence is provided. The commenter went on to state that, assuming 
that interaction rates have not changed over time, a simple 
extrapolation suggests that the estimated number of insular and pelagic 
false killer whales taken by longline fisheries in the U.S. EEZ around 
the MHI during the 4-year period from 1989 to 1993 would be no greater 
than 31.6 animals, which is substantially less than nearly 600 animals 
that supposedly disappeared. Therefore, other than questionable 
estimates of historical abundance, no other scientific evidence of a 
decline has been provided.
    Response: We believe the 1993 to 1997 abundance estimate provided 
in Mobley (2000) is too low and presents a higher level of precision 
than is appropriate given the survey constraints. In other words, the 
Mobley (2000) abundance estimate of 121 individuals is thought to be 
negatively biased, meaning the abundance estimate is lower than actual 
abundance, because observers were not able to detect groups below the 
plane and no adjustment was made for this in the calculation of 
abundance from those surveys, as is suggested in Buckland et al. (2001) 
``Introduction to Distance Sampling.'' The 1993 to 1997 estimates also 
carry high uncertainty due to the unsurveyed 400 m wide strip 
underneath the plane. The 1993 to 1997 aerial surveys may also be 
negatively biased due to the small average group size reported, 
suggesting that the aerial observers did not see the entire group. More 
recent analyses by Baird et al. (2008) have indicated that group size 
is positively related to encounter duration and that boat-based 
encounters of less than two hours duration generally yield an 
underestimate of total group size. When circling small groups in an 
airplane, sub-groups on the periphery of the circled group can easily 
be missed, especially when observers are focused on obtaining group 
size estimates from the group being circled. For these reasons, the BRT 
felt that the 1993 to 1997 estimate of 121 animals was unreliable and 
chose, instead, to use the encounter rate from each individual aerial 
survey in its assessment of population trend and extinction risk.
    Finally, it is inappropriate to assume that take rates in the late 
1980s and early 1990s should be the same as the current take rate. 
Longline fishing was allowed within the MHI insular population range 
until 1992. The emplacement of the longline exclusion zone eliminated 
the possibility of interactions over a very broad swath of the MHI 
insular population's range, likely significantly reducing bycatch of 
that population. Further, take rates of pelagic animals have exceeded 
the plausible reproductive rate (Oleson et al. (2010) calculated a 
rough inter-birth interval, or length between two live births, for 
false killer whales at 8.8 years) since bycatch monitoring began, 
suggesting the abundance of both populations has likely declined over 
time and therefore the rate of interactions may have also significantly 
declined relative to fishing effort. There is no data with which to 
evaluate historical levels of false killer whale take, or whether other 
causes of mortality such as a disease outbreak may have impacted the 
population in the late 1980s or early 1990s.
    Comment 24: Two commenters stated that they understood that 
individuals associated with the 1989 surveys have suggested that the 
sightings in question involved melon-headed whales, not false killer 
whales, and therefore there is reasonable disagreement among those 
involved as to the species identification. In addition, with respect to 
Mobley's 2000 to 2004 surveys which had no false killer whale sightings 
compared to Baird's early 2000 surveys, which showed 160 insulars, 
there is no way to reconcile the difference. For example, perhaps the 
conditions or false killer whale spatial distribution at the time of 
the Mobley surveys in the early 2000s differed from those when his 
surveys were conducted in the 1990s.
    Response: We have consulted with Dr. Randall Reeves, the one 
surviving scientist involved, who confirmed that the individuals 
identified in the comment were not directly or indirectly involved in 
the surveys, and confirmed that the animals sighted were more likely 
false killer whales than melon-headed whales.
    As for the lack of reconciliation between Baird's abundance 
estimate for the 2000 to 2004 period and the absence of sightings by 
Mobley in the 2000 and 2003 surveys, the data are not incompatible. 
False killer whales occur in large social groups, which contribute to 
the sampling error of estimating relative abundance from aerial and 
boat surveys. Given the relatively low size of the population, this 
means that at any given time the population may only occur in a few 
groups. The numbers of groups detected on the five Mobley aerial 
surveys were 9, 8, 1, 0, and 0. Given that the expectation of the 
number of encounters is quite low on the aerial survey, it is 
foreseeable that some surveys would detect no groups when the relative 
abundance was low, even if alternative methods (photo-identification 
from small boats) had documented that abundance was greater than zero. 
In conclusion, the observation of zero groups from the aerial survey is 
not incompatible with a low population size, but is, in fact, to be 
expected.
    Comment 25: A few commenters cited the draft 2010 SAR estimate 
abundance at 123 animals, while Baird et al. (2009) estimated abundance 
at 151, or 170 including Kauai. Taken together, these two estimates 
hardly suggest any decline over the last decade or associated risk of 
extinction. In fact, if the 1993 to1997 aerial survey estimate is 
considered, the insular population has remained stable for the last 18 
years despite its small population size and threats.
    Response: As discussed in the status review report, the estimate of 
123 insular animals by Baird (2005) is considered an underestimate 
because of the type of mark-recapture model used, and due to limited 
information on animal movement. Recent reanalysis of photographic 
identifications back to 2000, not available for the draft 2010 SAR, but 
included in the status review report, suggest that the best estimate of 
2000 to 2004 abundance is 162. This is best compared with the ``without 
Kauai'' estimate for 2006 to 2009, as the previous period did not 
include any individuals from Kauai. The animals around Kauai have now 
been linked to the newly recognized NWHI population, and not to the MHI 
population. As stated in the status review report (Oleson et al., 
2010), in Baird et al. (2012), and in the draft 2012 SAR (Carretta et 
al., 2012b), the most recent and best estimate without Kauai is 151 
animals, suggesting that the decline continues, even if at a lower rate 
than prior to 2000. The 2000 to 2004 and 2006 to 2009 estimates by 
Baird are thought to be overestimates of population size because they 
do not account for known missed matches of individuals within the 
photographic catalog. Some iterations of the PVA did include a change 
in the growth rate based on the possibility that the population may 
have stabilized in the most recent decade. However, even these models 
indicated functional extinction probabilities of 35 percent or greater 
for most models.
    With respect to the 1993 to1997 aerial survey estimate, the BRT 
felt that this estimate is negatively biased and unreliable and 
therefore chose not to

[[Page 70928]]

use the estimate during its assessment of historical population size or 
trend. Encounter rates from the 1993 to 1997 aerial surveys are used 
instead of the abundance estimates, and these encounter rates decline 
from the first survey in 1993 to the last survey in 2002 (see Response 
to Comment 29).
    Comment 26: One commenter noted that in November 2009, NMFS 
presented line-transect survey data which estimated the population size 
at 635, most of which was attributable to believed insular population 
sightings. However, NMFS now discounts this estimate due to the 
``likely'' attraction of false killer whales to the survey vessel. The 
commenter contends that NMFS has not provided a public document that 
meaningfully describes or analyzes the 2009 survey data or the factors 
that resulted in the conclusions regarding ``likely'' vessel 
attraction.
    Response: As stated in the status review report, and the notes from 
the 2009 Pacific Scientific Review Group meeting, the preliminary 
estimate of abundance from the 2009 survey is biased upward for two 
reasons: (1) The available data suggest significant vessel attraction, 
which has been shown for other species to result in overestimation of 
abundance by as much as 400 percent, and (2) because some of the 
sightings occurred in the insular-pelagic overlap zone and photographs 
or genetic samples are not available to assign these whales to a 
particular stock, the preliminary estimate includes animals from both 
populations. Vessel attraction can be inferred based on the observed 
behavior of the whales around the vessel (approaching the vessel from 
behind and remaining at close range next to the hydrophone array prior 
to moving ahead of the vessel and being detectable by the visual team) 
and the shape of the detection function from the line-transect 
analysis. This indicates significantly higher detection probabilities 
at very close range and at high sighting angles, supporting behavioral 
observations and indicating that this pattern is apparent on a broader 
scale than the single February 2009 survey. NMFS is analyzing the 
evidence for and potential magnitude of vessel attraction for false 
killer whales and expects to incorporate this information into stock 
assessments in the future.
    Comment 27: With further respect to population size, one commenter 
argues that there are errors in the 1989 and Mobley data, stating that 
the conclusions of Reeves et al. (2009) and the inferences that NMFS 
draws from the paper are based on significant uncertainty and 
unsupported assumptions. Errors include: no data regarding false killer 
whale abundance or distribution prior to 1989 or during other months 
that year; no data linking the 1989 observations to sighting data in 
mid-1990s or in 2000 to 2004; no subsequent surveys or techniques 
employed to analyze the 1989 data; and no evidence that animals sighted 
in 1989 were from the insular population. The fact that these large 
groups were never sighted again supports a conclusion that they were 
not insulars.
    Response: The commenter is correct that there is no information on 
abundance prior to 1989, since there is no individual photographic 
evidence linking the large group in 1989 to the insular population. 
However, as described above in the response to Comment 22, although a 
large group of 470 individuals has not been documented since 1989, it 
is incorrect to assume that none of these animals have been seen since, 
nor that this large group always remains together. Analysis of false 
killer whale social structure by Baird (2010) indicates that false 
killer whales occupy large social networks and may be seen with a 
variety of different individuals upon each encounter. The location of 
the 1989 sighting is well within the MHI insular population's 40 km 
core range, where no pelagic population animals have been observed, 
suggesting that the group was insular. However, the BRT acknowledged in 
its review of the data that this group could be from the pelagic 
population, and this was assessed as part of the plausibility analysis 
conducted to formulate the PVA. It is not clear how later surveys could 
be used to analyze the 1989 data.
    Comment 28: One commenter proclaimed that NMFS is hesitant to 
conclude that animals observed near Kauai are members of the insular 
population. This same rationale is relevant to the 1989 sightings.
    Response: The statement that we were hesitant to conclude that 
animals observed near Kauai were members of the insular population is 
true and the BRT acknowledged that the large groups seen in 1989 may be 
animals from the pelagic population, as might some of the Mobley 
sightings. These uncertainties were all taken into account when 
developing the PVA analyses and evaluating historical abundance and 
trend (see above). However, the combination of the photo-
identification, movements (Baird et al., in press), and genetics data 
since the 2010 status review now indicate that those individuals are 
part of a NWHI population (Oleson et al., 2012) and not part of the MHI 
population. The range of this population overlaps partially with the 
MHI insular population, as satellite-tagged individuals from that 
population have been documented off the western side of Kauai and 
Niihau (Baird et al., 2012). Three populations of false killer whales 
are now recognized within Hawaiian waters: the Hawaii pelagic 
population, the MHI insular population, and the new NWHI population 
(Carretta et al., 2012). Of note now is that the base-case for the PVA 
analysis used recent mark-recapture abundance estimates including 
animals seen near Kauai, or 170 animals. Since those animals near Kauai 
have now been linked to the NWHI population, the best estimate for the 
MHI insular population is now 151.
    As discussed further in the response to Comment 36, the 2010 status 
review did consider alternative PVA parameterizations, which assumed 
the lower abundance number of 151. Although those results were not 
heavily relied upon in the final evaluation by the BRT on extinction 
risk, some of the examples can be found in Appendix B of Oleson et al. 
(2010). The example runs using the lower abundance estimate of 151 do 
indicate slightly higher risk of extinction across the 50, 75, and 125-
year time spans used in the PVA.
    Comment 29: One commenter felt that NMFS' findings were 
inconsistent and are not explained. For example, ``historical 
population size of insulars is unknown'' therefore it is unknown 
whether the population has increased or decreased from historical 
levels because there is no historical abundance from which any increase 
or decrease can be inferred. In addition, the commenter points out that 
NMFS also recognizes that the limited available data merely 
``suggests'' a decline, as opposed to shows or demonstrates. The 
commenter suggests it becomes clear in the proposed rule that NMFS 
works from the assumptions that a decline has in fact been established 
and the proposed rule is based on this assumption, which is 
inconsistent with Reeves et al. (2009). Finally, the multiple 
statements that the population has declined are inconsistent with 
Reeves et al. (2009), which never stated that a decline had in fact 
occurred. Rather the authors spoke of a ``possible'' decline that ``may 
have occurred.''
    The commenter goes on to say that the proposed rule relies upon 
Mobley et al. (2000) and Mobley (2004) for the proposition that the 
insular population has experienced a decline in abundance because 5 
data points over a 10-year period indicate a decline in sighting rates. 
However, no analysis from

[[Page 70929]]

Mobley was provided on the sighting rates. Moreover, it is 
scientifically tenuous to assume a decline based on different methods, 
times, personnel, and goals. The 2009 SAR states ``a recent study 
(Reeves et al., 2009) summarized information on false killer whale 
sightings based on various survey methods and suggested insulars may 
have declined in the last two decades. However, because of differences 
in survey methods, no quantitative analysis of the sighting data and 
population trends has been made.'' NMFS' findings and conclusions in 
the proposed rule are thus inconsistent with express findings made by 
NMFS as recently as October 2009.
    Response: Although absolute historical abundance is unknown, this 
does not mean that no information is available with which to assess 
trends in abundance. Information on plausible historical density based 
on the current density at Palmyra Atoll is available. Declining 
encounter rates from the 1993 to 2002 aerial surveys suggest a decline 
in the population, rather than weather or other factors related to the 
survey platform, as encounter rates of other species with similar 
sighting characteristics increased or remained stable over the same 
period. There are no significant changes in survey methodology, 
personnel, or season that would preclude analysis of the Mobley aerial 
survey data in this way.
    Reeves et al. (2009) did not attempt to reconcile differences in 
survey platforms to derive quantitative estimates of population trend. 
However, this does not mean that the seemingly disparate datasets 
cannot be used in a quantitative way to assess trend. Although NMFS has 
discounted the actual abundance estimates derived by Mobley as 
unreliable, the encounter rate information is still usable and can be 
combined with boat-based survey data by careful evaluation of the 
construction of the PVA, as outlined in Appendix 2 of the status review 
report.
    The fact that Mobley himself did not analyze sighting rates is 
irrelevant to whether or not the sighting rates have in fact declined. 
Further, as of the final 2010 SAR (Carretta et al., 2011), it is true 
that no analysis of sighting rates or population trends had been 
conducted by NMFS. However, this analysis was conducted for the status 
review report, and the report's findings were incorporated into the 
final 2011 SAR and draft 2012 SAR (Carretta et al., 2012a; 2012b). The 
status review report summarizes the more recent analysis by Baird 
(2009), and treats all of the aerial survey and mark-recapture data in 
a quantitative framework that appropriately accounts for differences in 
survey methodology between the 1989 aerial survey, the Mobley aerial 
surveys, and Baird's mark-recapture estimates.
    Comment 30: Two commenters questioned the use of a small number of 
unsubstantiated eyewitness reports used to support the high risk rating 
of interactions with non-longline commercial fisheries. In addition, 
the frequency of interactions with non-longline commercial fisheries is 
unknown. The conclusion that such activities pose a high risk to 
insulars is speculative at best and irrelevant to NMFS' consideration 
of the best available science. Finally, one commenter felt that NMFS 
does not have adequate scientific or commercial evidence to assign a 
high risk to non-longline commercial fisheries.
    Response: The BRT separately evaluated severity, geographic scope, 
and certainty surrounding each identified threat to insular false 
killer whales. With respect to non-longline commercial fisheries, such 
as shortline and kaka-line, these fisheries use similar gear, but with 
a mainline length of less than 1 nmi, and target similar species to 
longline gear. These fisheries are also allowed to fish in nearshore 
waters. Based on the similarity of these fisheries to longline 
fisheries, and considering that the longline fisheries have a high 
mortality rate on false killer whales, in conjunction with anecdotal 
reports of interactions with cetaceans off the north side of Maui 
(although the species and extent of interactions are unknown (74 FR 
58879, November 2009)), it is likely that interactions of these 
fisheries with false killer whales occur. Therefore, the BRT 
determined, and we agree, that a high risk rating based on interactions 
with non-longline commercial fisheries is valid.
    The BRT also found, and we agree, that although there is no 
observer or monitoring program with which to quantitatively evaluate 
the incidence of hooking, entanglement, or acts of prohibited take of 
false killer whales caused by nearshore commercial fisheries, the 
eyewitness reports available do indicate that interactions are 
occurring. Evidence of dorsal fin scarring is consistent with line 
injuries (see response to Comment 15). Any level of interaction would 
yield a high cost to the population given its small size, and could 
occur throughout the range of the insular population. The BRT 
acknowledged that while the level of certainty surrounding the rate of 
occurrence is low, they were confident that a known threat of high 
severity and geographic scope could have a large impact on the 
population.
    NOAA observer reports have documented two instances when fishing 
crews have discharged diesel fuel into the water around fishing lines 
in order to discourage damage to catch by marine mammals. These actions 
constitute take under the MMPA as they are reasonably likely to alter 
the behavior of or harm protected species, including false killer 
whales. There are also written reports of fishermen shooting at whales 
(TEC, Inc., 2009), but we are unable to substantiate those allegations 
based on a review of agency data.
    As for the overall risk assessment, this was based on three 
criteria: severity of the threat, geographic scope of the threat, and 
level of certainty. A high level of certainty is desired, but not 
required for overall assignment of a potential threat as high risk. The 
number of eyewitness reports of entanglement and hooking by nearshore 
fisheries has increased in recent years. This, in conjunction with 
dorsal fin scarring and reports of fishing crew taking action to deter 
marine mammals, leads us to conclude that hooking, entanglement, and 
acts of prohibited take by fishermen is a high threat.
    Comment 31: One commenter felt that NMFS significantly grounds its 
proposed rule in biased conclusions. The biased conclusions are based 
on selective use of data and ultimately dependent upon the resolution 
of uncertainty in favor of assuming the worst possible circumstance for 
the insular stock. This approach is not scientifically or legally 
credible.
    Response: We disagree that the proposed rule is based on biased 
conclusions and this is addressed in our responses to Comments 4, 24, 
26, 28, and 29. Moreover, throughout the status review process the BRT 
evaluated the level of uncertainty in all data available to them and 
then judged the most plausible scenario. The summary of the votes on 
individual DPS, PVA, and threats questions may be used as evidence of 
this consideration and the Team's attempt to weigh the various options 
in the face of uncertainty and produce a report based on the most 
plausible outcome. In sum, the BRT's scientific opinion is based on the 
best available scientific information, which was the basis of the 
proposed rule and supports this final rule. Ultimately the best 
available data supports our conclusion that a decline in the MHI 
insular population has in fact occurred and is likely to continue.
    Comment 32: One commenter submitted a number of comments on the PVA 
analysis. Comments included: estimates of extinction risk are 
premature; and further analyses are

[[Page 70930]]

needed due to positive biases in estimates. For example, (1) in 
calculating extinction risk, no consideration was given to the 
possibility that Reeves et al. (2009) minimum estimates include 
offshore animals. It is not included in the ``prior'' options. 
Sensitivity test 3 with a broader prior distribution for the 1989 
abundance (50 to 3000) might appear to account for this, but the 
results for that test are heavily influenced by the Mobley survey 
sightings. A more appropriate sensitivity would use a much lower range 
of abundance. (2) The relative weights given to different realizations 
from the priors constructed depend on the likelihood evaluated for the 
abundance-related information. Here, a number of queries arise: (a) The 
formula at the top of page B-11 in the Appendix of the status review 
report is wrong. The CV should be squared and there is a multiplicative 
factor of 0.5 missing. It is unclear whether these are typos or 
incorrect calculations. (b) Information detailing how Baird et al. 
(2009) determined photo-identification mark-recapture estimates don't 
seem to be available, but the text suggests common factors for the 
estimates for the two different periods, in which case a likely 
positive covariance should be computed and incorporated in a modified 
formula. (c) While a change to a Poisson distribution for the 
likelihood component from the Mobley time series of sighting rate 
estimates is appropriate, no attempt seems to be made to take account 
of what might be substantial overdispersion in these distributions, 
leading to over-weighting of this info. (3) Put another way, point C 
above might be re-expressed as a concern about the compatibility of 
Baird's abundance estimate for the 2000 to 2004 period, and the absence 
of sightings by Mobley in the 2000 and 2003 surveys. (4) Questions 
arise about the CVs of Baird et al. (2009) estimates given that these 
are much less than the CV of 0.72 reported in Baird et al. (2005) for 
an estimate for the earlier period. (5) A particular concern is that a 
Bayesian approach can give an answer even if mutually inconsistent data 
are input, when that answer would be clearly wrong. Models and data 
inputs must be consistent, followed by consideration of relative 
plausibility. The commenter recommended that diagnostic checks be 
carried out on simpler model fits on the basis of maximum likelihood, 
in particular to check mutual compatibility or otherwise of the data 
used and the model and statistical distribution assumptions made. The 
BRT should also seek to include further reality checks on the fishing 
decline information.
    Response: As detailed throughout our responses to these comments, 
we do not agree that there is concern about potential bias in the 
estimates of extinction risk or the other issues raised. The overall 
result is that several evaluations of extinction risk, given different 
combinations of input data, all suggest the population has declined 
(see Appendix 2 of the status review report (Oleson et al., 2010)). The 
estimates of extinction risk are similar despite the choice of input 
parameters and excluding either of the aerial survey data sets.
    It is not true that no consideration was given to examining the 
role of the 1989 minimum estimate from Reeves et al. (2009). As noted, 
Sensitivity test 3 examined the influence of the 1989 estimate by 
removing it from the analysis. The Reeves et al. (2009) minimum 
estimate in combination with the mark-recapture abundance estimates 
indicate the population has declined, as does the Mobley trend data. 
Therefore, two independent datasets both indicate that the population 
has declined, and the extinction probability results were examined in 
sensitivities that removed either set of information, with similar 
results. We do not understand what is meant by the commenter's 
statement that ``a more appropriate sensitivity would use a much lower 
range.'' In Sensitivity test 3, a lower bound on 1989 abundance of 50 
was used. The posterior distribution for the 1989 abundance in that 
case did not support an abundance of less than 50 in 1989; therefore, 
using a lower bound would not have changed the results.
    It is correct that the equation at the top of page B-11 of the 
status review report has two typos. The squared term should be outside 
the brace (equivalent to squaring the CV) and there should be a 0.5 in 
front. The equation is correct in the program code used to run the 
analyses.
    As for a likely positive covariance that should be incorporated, 
identical methods (POPAN open model with constant or time-varying 
models for capture probability and survival) were used to calculate the 
two abundance estimates, but no common data or parameters were shared 
between the two estimates. Each estimate was based on a separate 
estimate made from two different data sets: 2000 to 2004 and 2006 to 
2009. Therefore, there is no covariance that needs to be accounted for. 
In both cases, the first and second best model as selected by AICc (a 
measure of model fit that balances the deviation between the model and 
input data and the number of parameters required to define the model) 
were the same for each data set, indicating the datasets were 
compatible.
    With respect to the comment on substantial over-dispersion in the 
distributions, we see no evidence for over-dispersion in the five 
Mobley estimates. There is relatively little variance between estimates 
from nearby years. Moreover, if the Mobley data had undue influence 
from over-weighting of that information, evidence for that would be if 
the estimated trajectory was dragged away from the other data. Instead, 
the estimated median trajectory in every case goes right through the 
mark-recapture estimates, so the Mobley data are not exerting undue 
influence and pulling the results away from the other data. 
Additionally, a sensitivity test was run removing the Mobley data, and 
the results were still quite similar, showing that the Mobley data are 
not solely driving the results.
    As for the concern about the compatibility of Baird's abundance 
estimate for the 2000 to 2004 period and the absence of sightings by 
Mobley in the 2000 and 2003 surveys, we address this issue in our 
response to Comment 24. As for CVs of Baird et al. (2009) compared to 
the CV of 0.72 reported in Baird et al. (2005) and why there was such a 
notable difference, the original Baird estimate (2005) averaged outputs 
from closed population models with limited information about animal 
movement throughout the study area and based on a smaller photographic 
catalog, yielding higher CVs on those estimates. The later estimates 
used an AIC to evaluate model fit and choose the best open-population 
model accounting for heterogeneity in sighting rates, reducing the 
uncertainty surrounding new estimates.
    Regarding the commenter's concern about using a Bayesian approach 
because it can give an answer even if mutually inconsistent data are 
input, nothing about the Bayesian approach makes it particularly 
susceptible to this type of issue. Maximum-likelihood estimation (MLE) 
methods can have the same issue. However, more importantly, it is not 
clear what mutually inconsistent data the commenter refers to in this 
comment. The only data the model are fit to are the mark-recapture 
abundance estimates and the Mobley trend data. In combination with the 
prior distribution for the 1989 abundance from Reeves et al. (2009), 
both sets of data support a decline in the population, and are 
therefore consistent with one another. Moreover, sensitivities were run 
excluding either data set, and with a very broad prior

[[Page 70931]]

distribution for the 1989 abundance, with similar results regarding the 
probability of extinction, so this issue has been thoroughly examined. 
A Bayesian approach was preferred given that the 1989 abundance from 
Reeves et al. (2009) was treated as a minimum count, so this could be 
easily incorporated into a prior distribution. If MLE methods were to 
be used, the 1989 minimum count could only be implemented by penalizing 
trajectories that went below that number, which would not be as 
straightforward an approach as the Bayesian approach.
    Concerning running diagnostic checks on simpler model fits, as 
already expressed, the data are not mutually incompatible. Both sets of 
data support a decline in the population, and results regarding 
probability of extinction are similar if either data set is removed 
from the analysis. The model may appear to be complex due to the 
stochastic elements that are specified, but the one-rate model has only 
two estimated parameters, essentially the slope and intercept of an 
exponential model. Therefore, the model fitting itself is not 
complicated, and the fits to the data are relatively straightforward, 
so there is no need for further diagnostic checks.

Public Comments From the Second Public Comment Period

    As previously indicated, we reopened the public comment period on 
September 18, 2012, for the limited purpose of soliciting comments on 
new scientific research papers and the recent NWHI false killer whale 
population (77 FR 57554). Comments were received from 15 commenters. 
Substantive comments were again received from two research, 
conservation, and education groups; the Humane Society; the Marine 
Mammal Commission; the State of Hawaii; the Western Pacific Regional 
Fishery Management Council; and the Hawaii Longline Association. These 
substantive comments are addressed below.
    Comment 33: A number of commenters stated that the new information 
adds additional support to the MHI insular population's genetic 
discreteness and significance and that despite some overlap in range 
between the MHI and NWHI populations, photo-identification, genetic 
analysis, and tagging studies all indicate that the NWHI is a 
distinctly separate population from the MHI insular population.
    Response: We agree that based on the best available data, the MHI 
insular population of false killer whales is a separate population from 
false killer whales found in the NWHI. We also agree that the 
information described by the commenters supports the conclusion that 
MHI insulars continue to meet the discreteness and significance 
criteria to be considered a DPS under the ESA. See Responses to 
Comments 35-37.
    Comment 34: One commenter questioned whether the 1989 survey data 
misidentified 400 animals off of the Big Island, and wondered what 
happened to over 300 animals in the last 20 years if there are only 150 
animals left. The commenter also stated that since the NWHI stock 
mingles and overlaps with the MHI stock, then it would seem logical to 
group these two populations together instead of treating them as 
separate groups.
    Response: We assume the commenter refers to the 3 large groups 
(group sizes 470, 460, and 380) of false killer whales reported close 
to shore off the island of Hawaii on 3 different days during the 1989 
aerial survey sightings (Reeves et al., 2009). We acknowledge that 
these observed group sizes are more than 3 times larger than the 
current best estimate of the size of the insular population; however, 
we do not believe this indicates that the animals were misidentified. 
As discussed in detail in the status review report (Oleson et al., 
2010) and the proposed rule, the large sizes of these groups raise the 
possibility that the animals seen during the 1989 surveys could 
represent a short-term influx of pelagic animals to waters closer to 
the islands. However, the BRT determined, and we agree, that these 
sightings likely consisted of insular animals because the sighting 
locations remain close to shore (approximately 4.5 to 11 km from shore 
(Reeves et al., 2009)) and we lack evidence of pelagic animals 
occurring that close to the islands. Additionally, as acknowledged in 
our response to comment 22 this large group of false killer whales were 
identified by experts in ``black fish'' identification.
    Comparison of the largest group sizes documented in the 1989 survey 
with recent population estimates suggest that the population has 
declined. Still, this is not the only evidence of decline; a regression 
of sighting rates from aerial surveys between 1993 and 2003 covering 
both windward and leeward sides of all of the MHI reveals a significant 
decline (Baird, 2009).
    We are not able to attribute this decline to a particular source; 
however, the status review report discussed a number of historical 
factors that we believe have contributed to the decline of this 
population. These factors contributing to the decline include: reduced 
prey biomass and size; competition with fisheries; accumulation of 
natural and anthropogenic contaminants; live capture operations 
occurring prior to 1990; disease and predation because of exposure to 
environmental contaminants; inadequate regulatory mechanisms, such as a 
lack of an observer program for nearshore fisheries; interactions with 
commercial longline fisheries; and finally, reduced genetic diversity 
due to small population size (Oleson et al., 2010).
    As for the comment on grouping the MHI and NWHI populations 
together, the MHI insular population and NWHI populations do not 
interbreed, such that significant genetic evidence supports separation 
of the population for management purposes despite a small geographic 
overlap in range near Kauai. See our discussion of the reevaluation of 
the DPS above and our Response to Comment 37.
    Comment 35: Two commenters stated that the new information 
continued to support the uniqueness of the ecological setting that MHI 
insulars occupy versus that of NWHI false killer whales. Of note is the 
large size and high elevations of the MHI which increases local 
productivity in many ways, while the small size and low elevations of 
the NWHI do not favor these factors. In addition, although the sample 
size for the NWHI population is low, the animals appear to use deeper 
waters further from shore than MHI animals, which is consistent with 
such ecological differences.
    Response: We agree that the information noted by the comments 
indicates physical and ecological differences between the MHI and NWHI 
habitats, and that tracking data may also indicate differences between 
how these animals use their respective habitats. The Reevaluation of 
the DPS Determination section of this rule describes how this 
information was considered with regards to the discreteness and 
significance criteria.
    Comment 36: A few comments identified that the new information 
confirms that the population estimate for the MHI insulars should be 
based on the lower abundance estimates (151) presented in the status 
review and the proposed rule, because the higher abundance estimate 
(170) included individuals from the NWHI population. Since the PVA 
analysis relied on the 170 estimate, those analyses likely 
underestimated the risk to the MHI insular population. In addition, one 
commenter believed that the effective population size is likely an 
overestimate, citing that the additional genetic analyses from Martien 
et al. (2011) estimates the effective population

[[Page 70932]]

size of only 50 individuals and that if the population has undergone a 
recent decline, as supported by observational data (Baird, 2009; Reeves 
et al., 2009; Oleson et al., 2010), the effective population estimate 
is actually likely to be an overestimate of the current effective 
population size.
    Response: We agree that the population estimate should be based on 
the lower abundance estimate, which represents the best available 
information. The animals around Kauai have now been linked to the newly 
recognized NWHI population; therefore, the most recent and best 
estimate for the MHI insular false killer whale population is 151 
(Carretta et al., 2012b). However, we note that in the 2010 status 
review the BRT did consider alternative PVA parameterizations, which 
assumed the lower abundance number of 151. Examples can be found in 
Appendix B of Oleson et al. (2010). The example runs using the lower 
abundance estimate of 151 do indicate slightly higher risk of 
extinction across the 50, 75, and 125-year time spans used in the PVA, 
further supporting the conclusion that ESA listing is warranted. 
Accordingly, we are satisfied that the BRT's PVA model accurately 
accounts for the extinction risk to a population of 151 animals.
    We also agree that the new information continues to support our 
previous conclusions in the status review report (Oleson et al., 2010) 
and the proposed rule (75 FR 70169; November 17, 2011) that the 
effective population size may be overestimated.
    Comment 37: Two commenters stated that the data supporting a DPS 
determination continues to be uncertain and inconclusive based on 
behavioral and ecological characteristics of the NWHI population, thus 
no longer supporting the discreteness and significance criteria. One 
commenter went on to say that NMFS must consider the draft policy (76 
FR 76987; December 9, 2011) on the interpretation of the phrase 
``significant portion of its range'' under the ESA, and determine 
whether the MHI insular component of the population would be considered 
``significant.'' The commenter further stated that should NMFS 
determine that the new NWHI population is actually part of the MHI 
population and that if this combined population qualifies as a single 
DPS, then NMFS must reassess the threats and extinction risk.
    Response: We disagree that the data pertaining to the DPS is 
inconclusive. As discussed in the Evaluation of DPS Determination 
section of this rule, the BRT has found, and we agree, that the MHI 
insular population of false killer whales continues to meet both 
discreteness and significance criteria to be considered a DPS under the 
ESA. There is strong support for discreteness based on genetic and 
behavioral factors and there is independent support for significance 
based on marked genetic characteristic differences. Ecological and 
cultural factors also support the significance finding. Additionally, 
all factors when considered together strengthened the significance 
finding.
    The ESA defines ``species'' to include subspecies or a DPS of any 
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). 
As discussed in response to Comment 34, genetic evidence supports the 
finding that the MHI insular population and NWHI populations do not 
interbreed and are therefore not a single DPS. Thus, there is no need 
to reassess the threats and extinction risk to the MHI insular 
population on that basis. Consistent with the draft SPOIR Policy, 
because we have found this population to be a DPS that is separate from 
the NWHI and pelagic populations, we did not evaluate whether the MHI 
insular false killer whale's range constitutes a significant portion of 
a larger taxonomic range.
    Comment 38: One commenter argued that the best available 
information does not support NMFS' conclusion that the insular stock 
has declined in abundance, because the primary support for the decline 
is based on the 1989 sighting data, which is unreliable, uncertain and 
is undermined by Bradford et al. (2012). Specifically, the commenter 
pointed out that quotes from Bradford et al. (2012) cautioned about 
creating abundance estimates based on a sighting of a single large 
group, because this can result in overestimates. They also asserted 
that the 1989 sighting data has not received the same amount of 
scrutiny, or skepticism as other more recent population estimates. The 
comment went on to indicate that it was unscientific, reflective of 
bias and arbitrary of NMFS to discredit data that are current and 
reliable, while at the same time relying on historical data that are 
questionable for an ESA listing.
    Response: We disagree that the 1989 sighting data is unreliable or 
uncertain for a number of reasons as discussed in response to Comments 
20, 22, 23, 24, 27, 28, and 34. As cited in the 2010 status review 
report, we have relied on a number of credible, peer-reviewed 
scientific data to support the decrease in sighting rates and therefore 
the decline of the MHI insular population. The Bradford et al. (2012) 
report does not undermine our conclusion to retain the population 
estimate from 1989. As the draft of Bradford et al. (2012) asserts, it 
is tenuous to extrapolate information from a single sighting of a large 
group to the entirety of the stock range, thereby, further inflating 
the estimate. However, the BRT did not extrapolate the 1989 group size 
estimates over the entirety of the stock's range, but rather used the 
group size estimates from that survey as a measure of the entire stock 
abundance in 1989. Further, Bradford et al.'s (2012) qualifying 
statements about the accuracy of the NWHI abundance based on a line-
transect survey is irrelevant in this context, because MHI insular 
abundance is estimated using dozens of sightings across several years 
of survey effort treated within a mark-recapture framework, resulting 
in low uncertainty around the abundance estimate.
    Comment 39: One commenter questioned the 2009 NMFS line-transect 
survey data that was discarded, stating that NMFS estimated 635 false 
killer whales, most of which were attributable to the insular stock. 
NMFS has apparently discarded that data without any explanation other 
than a cursory justification that ``vessel attraction'' occurred. 
However, NMFS has not made public any info pertaining to the 2009 
survey and has provided no report or other scientific explanation that 
presents the data along with reasoned analyses supporting the agency's 
conclusion.
    Response: We addressed this question in the response to the first 
public comment period (see Comment 26).
    Comment 40: A number of comments were submitted related to peer 
review. One commenter stated that the BRT's status review report says, 
`` * * * analyses conducted by individual team members were subjected 
to independent peer review prior to incorporation into the Review.'' 
However, NMFS has not presented the results of this peer review and it 
is not clear which analyses were peer reviewed, by whom, and in what 
detail. The historical decline and DPS determinations should undergo 
formal CIE review. The State of Hawaii cautioned the use of the new 
information, stating that all except one of these papers are not yet 
externally peer-reviewed and published and therefore the results and 
conclusions should be considered preliminary until full review. The 
State of Hawaii also stated it would like to be involved in the 
external peer review since a number of important decisions such as 
critical habitat, calculation of minimum population size, potential 
biological removal, and allotment of serious injury and mortality to 
different stocks will be based, in part, on the papers under 
consideration. Additionally, the State

[[Page 70933]]

requested to contribute membership to any ``teams'' that are formed to 
evaluate and plan for management of this species.
    Response: All of the data and information presented in the 2010 
status review was peer-reviewed prior to use by the BRT and the status 
review report was also reviewed by three anonymous external reviewers 
as required by the OMB Peer Review Bulletin. All of the information 
presented in the 2010 status review is appropriately referenced to the 
source material. In some cases, the PSRG (Pacific Scientific Research 
Group; a regional advisory group to NOAA Fisheries) served as peer-
review when results had not been subject to journal review. All but one 
of the data sources or reports used in the Reevaluation of the DPS 
(Oleson et al., 2012) have been peer reviewed, either during review by 
independent scientific journals (e.g., Baird et al. 2012; Baird et al., 
in press), as part of the NMFS Science Center's publication process 
(e.g., Bradford et al., 2012), or by the PSRG (e.g., Bradford et al., 
2012; Martien et al., 2011; Chivers et al., 2011). A field report by 
Baird (2012) was the only piece of information evaluated by the BRT in 
the recent review that was not externally peer reviewed. All of the 
information in all of these papers was reviewed by the BRT up to their 
peer-review standard and meets the criteria of best-available 
scientific information.
    Lastly, NMFS will continue to coordinate with the State of Hawaii 
as we move forward with the management of the MHI insular false killer 
whale.
    Comment 41: The State of Hawaii expressed concerns that the mtDNA 
analysis may not be appropriate and that the genetic analysis in 
general may be compromised by pseudo-replication. They claimed the 
effective population size estimates include an analysis of convergence 
that is not statistically appropriate based on their consultation with 
the author of the statistical program used for this analysis. The State 
requested that NMFS discuss these issues with their experts.
    We followed up with the State of Hawaii and its experts in the 
Department of Land and Natural Resources (DLNR) to further clarify 
their comments. The subsequent follow-up comments pertained to the 
genetic analyses found in Martien et al. (2012) and Chivers et al. 
(2012) and are summarized as follows: (1) It appears that false killer 
whales likely are made up of several populations that are based more on 
social groupings than on geographical locations (2) Because the 
findings indicate that false killer whales stay in natal groups, 
multiple samples from the same groups would potentially be 
pseudoreplicates. (3) The NWHI samples were chosen because they had 
mtDNA haplotypes similar to MHI insular haplotypes, therefore it 
doesn't make sense to compare mtDNA as part of the analysis because 
NMFS has hand-picked similar DNA. (4) One-fifth of NWHI samples 
assigned ambiguously in STRUCTURE and sample size may be an issue in 
this analysis. DLNR suggests using Nm (effective population size * 
effective proportion of immigrants) comparisons because they can be 
done using the private alleles method if convergence cannot be reached 
in programs like LAMARC (Likelihood Analysis with Metropolis Algorithm 
using Random Coalescence). (5) Chivers et al. (2012) extends their 2010 
paper to include NWHI samples. The 2010 paper indicates that samples 
were considered insular if collected from groups that had been photo-
identified as part of the insular social network. Locations of these 
samples were near the MHI; the pelagics were further offshore. Were 
samples assigned as pelagic or insular based on mtDNA or location? (6) 
It is interesting that Mexico and Hawaii pelagic mtDNA had such small 
differentiation (the most common haplotype was shared between these 
locations). Pelagic and Mexico samples were also really similar for 
microsatellites, which raises some questions about what level of 
differentiation is meaningful in this species/populations, and DLNR 
suggests bootstrapping over microsatellite loci for F-st to look at 
variation. (7) The indication in the Bayesian analysis, STRUCTURE, 
seems to be that the MHI insular stock is really different from 
everything else, including the NWHI stock. It would be interesting to 
know if the K=3 plot with 2 main clusters in the insular population is 
broken down by social cluster 3 and clusters 1 and 2 as indicated by 
Martien et al.'s (2011) results. (8) The subsampling technique in 
Martien et al. (2012) for evaluating whether sample size was large 
enough is not really statistically sound. Evaluating the results in 
this manner make it seem as if there is less uncertainty than there 
really is.
    Response: We respond to the issues raised as follows: (1) Evidence 
from photo-identification, satellite tagging, and genetics suggest that 
populations are geographically based. There is considerable photo-
identification and satellite telemetry data showing that the MHI 
insular population exhibits strong site-fidelity to the near-shore 
waters of the MHI. Similarly, available photographic and telemetry data 
from the NWHI also indicates site-fidelity to the NWHI. Though the 
ranges of these two populations overlap around Kauai, and the MHI 
insular population overlaps with the pelagic population between 25 and 
75 nmi offshore, the amount of time that animals spend in these areas 
of overlap appears to be minimal. Furthermore, there have never been 
any encounters that involved animals from more than one of these 
populations. Within the MHI insular population there are distinct 
social groups. MHI insular social groups have broadly overlapping 
ranges and have been documented associating with each other on numerous 
occasions. Relatedness analyses suggest that mating between MHI insular 
social groups is common. Thus, we believe these are social groups 
within a population, not independent populations. (2) Pseudoreplication 
refers to failing to properly replicate treatments in an experimental 
design and is therefore not relevant to the sampling issue raised here. 
It appears as though the commenter's concern is that samples taken from 
the same group may not be independent because they are likely to have 
come from related individuals, and is suggesting that the subsampling 
used by Chivers et al. (2007) should be used to address this concern. 
Chivers et al. (2007) did not limit their sample set out of concern 
regarding related individuals but rather to ensure that they did not 
include duplicate samples in their dataset. Their analysis was based 
exclusively on mtDNA data. Thus, they were not able to identify 
individuals that had been sampled multiple times. Chivers et al. (2011) 
and Martien et al. (2011) were able to use microsatellite data to 
eliminate duplicates from the dataset prior to analysis, so the 
subsampling conducted by Chivers et al. (2007) was not necessary. The 
fact that a dataset contains closely related individuals is only cause 
for concern if the presence of those individuals results in the dataset 
not being representative of the underlying population allele and 
haplotype frequencies. In the case of MHI insular false killer whales, 
approximately two-thirds of the population has been sampled, and the 
samples are well-distributed among the social clusters. Thus, there is 
no doubt that the sample is representative of the population allele and 
haplotype frequencies. Sampling in the NWHI is much more limited. There 
is currently no information available regarding social structure within 
this population, but it is entirely possible the NWHI

[[Page 70934]]

samples are representative of a single social cluster, but not the 
entire population. (3) The NWHI samples were not hand-picked because 
they had haplotypes similar to the MHI insular population. Nearly all 
of the samples were collected from groups for which we had satellite 
telemetry data, indicating that they were closely associated with the 
islands and atolls of the NWHI and for which photo-identification data 
indicated long-term fidelity to the NWHI. Thus, it was the combination 
of the telemetry, photo-identification and mtDNA data that suggested 
the animals represented an island-associated population. Nonetheless, 
it is true that the mtDNA provides less insight into the relationship 
between the MHI insular and NWHI populations than does the nuclear 
data. The statistically significant differentiation between the two 
populations in the mtDNA dataset is entirely due to the lack of 
haplotype 2 in the NWHI, which is not very compelling given that 
haplotype 2 is also absent from one of the social clusters from the MHI 
insular population. The BRT specifically noted that in discussing the 
new genetic results, there were two findings that influenced the BRT's 
consideration: the finding of a new haplotype in the NWHI that has not 
been found in the MHI despite very good sampling in the MHI and the 
separation indicated by the microsatellite data (nuclear) that strongly 
suggests little gene flow between the NWHI and MHI. The Fst for the 
mtDNA data was down-weighted in our consideration because one of the 
three social groupings in the MHI has only haplotype 1 and nearly all 
samples from the NWHI likely originated from a single social group in 
which all individuals except one had haplotype 1. Thus, based on 
frequency comparisons of mtDNA alone, evidence for the MHI and NWHI 
being discrete populations is not very strong. It was, therefore, 
adding the nuclear data that carried the most weight with respect to 
whether the NWHI was another social cluster or a discrete population. 
(4) We acknowledge the suggestion for further analysis of the data and 
we plan to attempt to estimate migration rate between populations, 
though we anticipate that convergence may be an issue due to sample 
size limitations in the NWHI and pelagic populations. (5) Samples were 
not designated as MHI insular based on mtDNA or location. They were 
identified as belonging to the insular population if they were 
collected from groups that had been photo-identified as part of the 
insular social network. (6) While such analysis may be of biological 
interest in the future (particularly if more samples are obtained from 
these strata), this analysis does not bear on the question of whether 
the MHI is discrete from these other strata and hence would not 
influence our evaluation of DPS status. (7) The two main clusters in 
the insular population from the K=3 plot do not correlate with social 
clusters. (8) The author of the computer program to estimate effective 
population size notes correctly in the additional comments from the 
State of Hawaii that the results of the subsampling would be ambiguous 
if the effective population estimates converged at a sample size close 
to the total number of samples. However, as he points out in his email 
with the State of Hawaii, the estimates of effective population size 
for the MHI insular population actually converge at a sample size of 
50, which is just over half of the total sample size. This result 
indicates that further sampling of this population is unlikely to 
substantially change the estimate of effective population size, as 
Martien et al. (2012) state. The estimate is, nonetheless, uncertain, 
as reflected in the 95 percent confidence intervals Martien et al. 
(2012) report. Martien et al. (2012) estimated effective population 
size for the social clusters and for the Hawaiian Archipelago as a 
whole specifically for the purpose of examining the impact of violating 
the assumption of a single, closed population. The estimates of 
effective population size for the social clusters and entire Hawaiian 
Archipelago do not influence the interpretation of the estimate for the 
MHI insular population, which is the only estimate with which the BRT 
was concerned.
    Comment 42: One commenter noted that should MHI insular false 
killer whales be listed under the ESA, Baird et al. (2012) provides a 
quantitative assessment of location data from satellite-tagged MHI 
insulars to inform the designation of critical habitat.
    Response: We acknowledge that Baird et al. (2012) provides 
satellite tagging data and may provide information useful for decision-
making concerning designation of critical habitat. Comments on critical 
habitat will be evaluated during subsequent rulemaking on critical 
habitat. Summary of Factors Affecting the Main Hawaiian Islands Insular 
False Killer Whale DPS.
    Overall, there were 29 threats identified to have either a 
historical, current, or future impact to MHI insular false killer 
whales. Of these, 15 threats are believed to contribute most 
significantly to the current or future decline of MHI insular false 
killer whales. The two most significant threats pertained to small 
population size and hooking, entanglement, or acts of prohibited take 
by fishers. The following discussion briefly summarizes our findings 
regarding these 15 threats to the MHI insular false killer whale DPS.
    The discussion below is organized by the ESA section 4(a)(1) 
factors (A-E), including the key limiting factors within each section 
4(a)(1) factor, the corresponding risk ratings, and the threats 
associated with those key limiting factors and overall threat level. 
Key limiting factors are the physical/biological/chemical features 
presently experienced by the population that result in the greatest 
reductions in the population's ability to recover compared to the 
conditions experienced prior to the onset of these threats. These key 
limiting factors are the most significant natural and anthropogenic 
factors that are currently impeding the ability of the population to 
recover. Key limiting factors are those that, if improved, would have a 
marked favorable effect on the species' status. We have identified 10 
key limiting factors. The threat level of 1, 2, or 3 ranks how each 
threat will contribute to the decline of the DPS over the next 60 
years: A ranking of 1 means a threat is likely to only slightly impair 
the DPS in a limited portion of the species' range; a ranking of 2 will 
moderately degrade the DPS at some locations within the species' range; 
and a ranking of 3 means this threat is likely to eliminate or 
seriously degrade the MHI insular false killer whale population 
throughout its range. More details and supporting evidence can be found 
in the proposed rule (75 FR 70169; November 17, 2010) and the status 
review report (Oleson et al., 2010).

A: The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The key limiting factor associated with this ESA section 4(a)(1) 
factor is reduced food quality and quantity. The BRT ranked this 
limiting factor as medium risk in that it encompasses an intermediate 
number of threats that are likely to contribute to the decline of the 
MHI insular false killer whale population or contains some individual 
threats identified as moderately likely to contribute to the decline of 
the population at many locations within its range. These threats are 
described below.
    (1) Reduced total prey biomass. This is a threat level 2 for MHI 
insular false killer whales for historic, current, and

[[Page 70935]]

future impact. Although declines in prey biomass were more dramatic in 
the past when the MHI 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 CPUE data from Hawaii longline 
fisheries and biomass estimates from tuna stock assessments (Oleson et 
al., 2010).
    (2) Reduced prey size. This is a threat level 2 for MHI insular 
false killer whales for historic, current, and future impact. Long-term 
declines in prey size from the removal of large fish have been recorded 
from the earliest records to the future, and are related to measures of 
reduced total prey abundance, which include prey size (Oleson et al., 
2010).
    (3) Competition with commercial fisheries. For competition with 
commercial longline fisheries, this threat is rated as a threat level 3 
for its historic impact, while competition with commercial troll, 
handline, shortline, and kaka line fisheries is rated as a threat level 
2 for its historic impact. Both commercial fishing categories are rated 
as a threat level 2 for current and future impact to MHI insular false 
killer whales. 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.
    (4) Competition with recreational fisheries. Reduced food due to 
catch removals by recreational fisheries was assessed to have a threat 
level 1 for historic as well as current and future impact. However, the 
extrapolated Hawaii recreational fisheries catch totals are many times 
higher than the reported commercial catch totals for troll, handline, 
shortline, and kaka line fisheries (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 Marine Recreational Fisheries Survey (WPRFMC, 2010) are 
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.
    (5) Accumulation of natural or anthropogenic contaminants. Many 
toxic chemical compounds and heavy metals tend to degrade slowly in the 
environment; therefore they tend to biomagnify in marine ecosystems, 
especially in lipid-rich tissues of top-level predators (McFarland and 
Clarke, 1989). Exposure to persistent organic pollutants, 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 threat level 
2 for its historic impact, but a threat level 1 for current and future 
impact due to recent industry regulations.

B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    This factor may have contributed to the historical decline of MHI 
insular false killer whales with the threat of live-capture operations 
occurring prior to 1990. However, there are no current and/or future 
impacts identified for this section 4(a)(1) factor and the associated 
key limiting factor of low population density. Interactions with 
fisheries are discussed under Factor D: The Inadequacy of Existing 
Regulatory Mechanisms (below).

C: Disease or Predation

    The key limiting factors associated with this listing factor are 
disease, predation, and competition, which the BRT ranked as medium, 
low, and low, respectively, in terms of the overall risk that the 
limiting factors will contribute to the decline of the species over the 
next 60 years, which is roughly the lifespan of a false killer whale. 
The threats associated with the medium-ranked disease limiting factor 
are described below.
    (6) Environmental contaminants. Disease plays a role in the success 
of any population, but small populations in particular can be extremely 
susceptible to disease, as this threat can have a disproportionate 
effect. Anthropogenic influences can potentially increase the risk of 
exposure to diseases 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 
from environmental contaminants are rated as a threat level 2 for its 
historic, current, and future impact.
    (7)(a) Short and long-term climate change. Climate change is 
counted as a single threat but it is divided into two separate parts: 
in this section as it relates to an increase in disease vectors, and in 
Factor E (see (7)(b)) as it relates to changes in sea level, ocean 
temperature, ocean pH, and expansion of low-productivity areas. While 
not evaluated historically, climate change poses a threat level 2 for 
current and future impact to MHI insular false killer whales due to the 
possible increase in disease vectors.

D: The Inadequacy of Existing Regulatory Mechanisms

    The limiting factor identified by the BRT for this section 4(a)(1) 
factor is incidental take, which was rated as a medium risk to MHI 
insular false killer whales. The section discusses: the lack of 
reporting/observing of nearshore fisheries interactions; and the 
longline fishing prohibited area as a regulatory measure.
    (8) Lack of reporting/observing of nearshore fisheries 
interactions. A high rate of fin disfigurements (Baird and Gorgone, 
2005) and other observations (described in greater detail in the 
proposed rule) suggest interactions between fisheries and MHI insular 
false killer whales. While Baird and Gorgone (2005) suggest there may 
be other causes for the fin disfigurements, they conclude that the 
injuries are most consistent with hook and line interactions. The BRT 
did not attribute these injuries specifically to the longline fleet; 
the injuries could have come from other hook-and-line fisheries as 
well. Only federally-managed longline fisheries are currently observed, 
whereas state-managed nearshore troll, handline, shortline, and kaka 
line fisheries are not observed. The BRT rated the continued lack of 
observer data for state-managed nearshore fisheries, and a lack of an 
independent reporting system for documenting interactions with MHI 
insular false killer whales, as a threat level 3 for historic impact 
but a threat level 2 for current and future impact to MHI insular false 
killer whales.
    (9) Longline fishing prohibited area. We considered whether any 
other regulatory mechanisms directly or indirectly address what are 
deemed as the most significant limiting factors to the MHI insular DPS: 
small population size; and hooking, entanglement, or acts of prohibited 
take by fishermen. Small population size is considered an overall high 
risk 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.
    Regarding the significant limiting factor of hooking, entanglement, 
and acts of prohibited take, a regulatory mechanism exists to partially 
address interactions with 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

[[Page 70936]]

fishermen versus handline and troll fishermen, charter boat operators, 
and recreational fishermen. Longline fishing has thus been effectively 
excluded from the MHI insular DPS's entire core range (less than 40 km 
from the shore) and a portion of the MHI insular DPS's extended range 
(within the insular-pelagic overlap zone) for two decades. This 
longline fishing prohibited area thus indirectly benefits MHI insular 
false killer whales by decreasing the amount of longline fishing in MHI 
insular false killer whale habitat. However, the decline of the MHI 
insular DPS continues despite the prohibited area.
    The FKWTRP proposed rule, when implemented, would modify the 
existing longline exclusion zone to prohibit longline fishing year-
round in the portion of the exclusion zone (and the insular-pelagic 
overlap zone) that was previously closed only seasonally. By providing 
for additional separation between the MHI insular whale's range and the 
longline fisheries, this action is expected to reduce the risk of 
incidental serious injury and mortality to the MHI insular false killer 
whale.
    We note, however, that since the proposed FKWTRP has not yet been 
implemented, its effectiveness has not yet been demonstrated, and there 
is insufficient evidence to believe that this increase in the size of 
the existing prohibited area will reverse or slow the decline of the 
DPS. Under the FKWTRP, 26 percent of the insular-pelagic overlap zone 
will remain open to longline fisheries. Further, the longline fishing 
prohibited area does not apply to other commercial fisheries, including 
troll, short line, and kaka line fisheries, that are believed to pose a 
threat to MHI insular false killer whales.
    Moreover, the FKWTRP proposed rule does not address other threats 
to the population, including low population numbers, inbreeding 
depression, genetic isolation, contaminants, and disease. Accordingly, 
we cannot conclude that the FKWTRP proposed rule is adequate to address 
the risks from the existing threats identified above.
    In light of the foregoing, hooking and entanglement in all 
commercial fisheries is considered a threat level 3 for current and 
future impact.

E: Other Natural or Manmade Factors Affecting Its Continued Existence

    Several limiting factors were identified for this ESA section 
4(a)(1) factor. The most important of these, as determined by the 
overall ranking, include hooking, entanglement, or acts of prohibited 
take by fishers, which was rated as a high risk; small population size, 
which was rated as a high risk; and ``other,'' which was rated as a 
medium risk. Threats related to these limiting factors are discussed 
below. We also discuss impacts of short and long-term climate change 
(see also Factor C above).
    (10) Interactions with commercial longline fisheries. The 
commercial longline fishery has been largely excluded from the core 
range of MHI insular false killer whales since the early 1990s, 
suggesting lower current and future impact from longlining (assuming 
the current restrictions remain in place). However, it is likely that 
unobserved interactions with the longline fishery represented a high 
impact through the early 1990s. Thus, interactions with the commercial 
longline fishery were rated as a threat level 3 for overall historic 
impact, but a threat level 1 for current and future impact.
    (11) Interactions with commercial troll, handline, shortline, and 
kaka line fisheries. The BRT rated these commercial fisheries as a 
threat level 1 historically but a threat level 3 for current and future 
impact to MHI insular false killer whales. This level 3 or high current 
and future impact is assumed based on the 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.
    (12) Reduced genetic diversity. This threat was rated as a threat 
level 2 for historic, current and future impact to MHI insular false 
killer whales. Reduced genetic diversity, coupled with the next two 
threats of inbreeding depression and other Allee effects, are 
associated with the limiting factor of small population size and were 
identified as threats that independently present a medium threat level, 
but which together contribute to a high overall current and future risk 
to MHI insular false killer whales. The effective population size (the 
number of individuals in a population who contribute offspring to the 
next generation) is about 50 breeding adults (Chivers et al., 2010; 
Martien et al., 2011). This number is so small that small population 
effects 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), and may further compromise the 
ability of MHI insular false killer whales to recover to healthy 
levels.
    (13) Inbreeding depression. This threat was rated as a threat level 
1 historically, but a threat level 2 for current and future impact to 
the DPS.
    (14) Other Allee effects. This threat was rated as a threat level 1 
historically, but a threat level 2 for current and future impact to the 
DPS.
    (15) Anthropogenic noise. Anthropogenic noise, caused from sonar 
and seismic exploration from military, oceanographic, and fishing sonar 
sources, among others, is rated as a threat level 1 historically, but a 
threat level 2 for current and future impact to MHI insular false 
killer whales. 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.
    (7)(b) Short and long-term climate change. While not evaluated 
historically, climate change as it relates to ``other natural or 
manmade factors'' poses a threat level 2 for current and future impact 
to MHI 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''). (See (7)(a) 
for how climate change relates to an increase in disease vectors under 
Factor C.)

Efforts Being Made To Protect the Main Hawaiian Islands Insular False 
Killer Whale DPS

    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 MHI 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

[[Page 70937]]

Evaluating Conservation Efforts (PECE); 68 FR 15100, 28 March 2003).
    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 (Marine Pollution 
protocol for the International Convention for the Prevention of 
Pollution From Ships); (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 proposed rule implementing the False Killer Whale Take 
Reduction Plan that was published in the Federal Register on July 18, 
2011 (76 FR 42082) (and detailed in the ``Relevant Background 
Information Pertaining to the Marine Mammal Protection Act'' portion of 
this final rule); and (8) the possible expansion of the Hawaiian 
Islands Humpback Whale National Marine Sanctuary. Each of these efforts 
is further described in the proposed rule for the listing (75 FR 70169; 
November 17, 2010).
    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 MHI insular false killer 
whales. Specifically, the MMPA, CWA, and MARPOL efforts are all certain 
regulatory measures, but they do not cover indirect or cumulative 
threats, such as non-point source pollution, nor do they, nor can they, 
address threats such as small population effects. The existing longline 
prohibited area around the Main Hawaiian Islands has also been 
effective by reducing interactions with the insular DPS since 1992, yet 
interactions with the longline fisheries have still been documented and 
the total population size of the MHI insular DPS has declined since 
then. The Watchable Wildlife Viewing Guidelines are only 
recommendations and thus are not legally enforceable. The active 
research programs have gathered valuable data, but many data gaps still 
remain and research is costly and could take decades.
    As previously mentioned, NMFS published a proposed rule 
implementing the FKWTRP on July 18, 2011 (76 FR 42082). Once the 
measures in the FKWTRP are implemented, it will likely be beneficial to 
the MHI insular DPS. However, it will not address indirect or 
cumulative effects that are impacting the DPS, including threats from 
troll, kaka line, and short line fisheries not covered by the FKWTRP, 
and 26 percent of the insular-pelagic overlap zone will remain open to 
longline fisheries.
    Finally, the possible expansion of the Hawaiian Islands Humpback 
Whale National Marine Sanctuary is not definite. It is not known 
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. We also cannot say with a high level of 
certainty that the conservation efforts will be effective as required 
by the PECE policy (68 FR 15100, 28 March 2003). Therefore, we have 
determined that these efforts are not comprehensive in addressing the 
many other issues now confronting MHI insular false killer whales 
(e.g., small population effects) and thus will not alter the extinction 
risk of the species.

Final 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 BRT's status review report (Oleson et al., 2010), peer 
review, public comments, the BRT's reevaluation of the DPS (Oleson et 
al., 2012) and other available published and unpublished information, 
and we have consulted with species experts and other individuals 
familiar with MHI insular false killer whales.
    Based on this review, and in accordance with the BRT's findings, we 
conclude that the MHI insular false killer whale meets the discreteness 
and significance criteria for a DPS (61 FR 4722; February 7, 1996). The 
MHI insular false killer whale population is discrete due to marked 
separation from other populations of the same taxon as a consequence of 
genetic and behavioral factors. This population is significant to the 
species as a whole based on marked genetic characteristic differences. 
Additionally, ecological and cultural factors further support the 
significance of this population to the species as a whole, especially 
when these factors are considered together with the significance of the 
marked genetic differences. We also agree with the BRT's assessment of 
possible threats and their current and/or future risk to the MHI 
insular DPS. The greatest threats to the insular population are small 
population effects and hooking, entanglement, or acts of prohibited 
take by fishermen.
    We agree with the BRT's assessment of extinction risk because most 
PVA models indicated a probability of greater-than-90 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.
    Conservation efforts that have yet to be implemented or to show 
effectiveness, including those to protect the pelagic population of 
Hawaiian false killer whales as described in previous sections, may 
also benefit the MHI insular population. Taken together, however, we 
have determined that these efforts are not holistic or comprehensive in 
addressing the threats now confronting MHI 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 MHI insular 
false killer whale DPS is presently in danger of extinction throughout 
all of its range. Factors supporting a conclusion that the DPS is in 
danger of extinction throughout all of its range include: (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 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; interactions with 
commercial longline fisheries; interactions with troll, handline, 
shortline, and kaka line fisheries; small population size (reduced 
genetic diversity, inbreeding depression, and other Allee effects); and 
anthropogenic noise (sonar and seismic exploration)).
    Future declines in MHI insular population abundance may occur as a 
result of multiple threats, particularly those of small population 
size, and hooking, entanglement, or acts of prohibited take by 
fishermen. Current

[[Page 70938]]

trends and projections in abundance indicate that the MHI insular false 
killer whale DPS is in danger of extinction throughout all of its 
range. Given these threats, coupled with the small population size of 
less than 151 animals (Oleson et al., 2010; Baird et al., 2012; 
Carretta et al., 2012b), and the current extinction projection of the 
population becoming functionally extinct within 3 generations or 75 
years, we are listing the MHI insular false killer whale DPS as an 
endangered species, as of the effective date of this rule.

Prohibitions and Protective Measures

    Because we are listing this species as endangered, all of the take 
prohibitions of section 9(a)(1) of the ESA (and codified in 16 U.S.C. 
1538 (a)(1)(B)) 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'' (16 U.S.C. 1532(19)). These prohibitions apply to 
all persons subject to the jurisdiction of the U.S., including in the 
U.S. or on the high seas.
    Section 7(a)(2) of the ESA and NMFS/U.S. Fish and Wildlife Service 
(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. Once a species is listed as threatened or 
endangered, section 7(a)(2) also 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. Our section 7 
regulations require the responsible Federal agency to initiate formal 
consultation if a Federal action may affect a listed species or its 
critical habitat (50 CFR 402.14(a)). Examples of Federal actions that 
may affect the MHI 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.
    Sections 10(a)(1)(A) and (B) of the ESA provide us with authority 
to grant exceptions to the ESA's section 9 ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of the species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets the MHI 
insular false killer whale DPS.
    ESA section 10(a)(1)(B) incidental take permits may be issued to 
non-Federal entities performing activities that may incidentally take 
listed species, as long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity.

Effective Date of the Final Listing Determination

    We recognize that numerous parties may be affected by the listing 
of the MHI insular false killer whale DPS. To permit an orderly 
implementation of the consultation requirements applicable to 
endangered species, the final listing will take effect on December 28, 
2012.

Critical Habitat

    Critical habitat is defined in 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)).
    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)). 
Designation of critical habitat must be based on the best scientific 
data available and must take into consideration the economic, national 
security, and other relevant impacts of specifying any particular area 
as critical habitat.
    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that we consider those physical or 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 historical 
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.''
    In our proposal to list the MHI insular false killer whale DPS, we 
requested information on the quality and extent of habitats for the MHI 
insular false killer whale DPS as well as information on areas that may 
qualify as critical habitat. Specifically, we requested identification 
of specific areas that meet the definition above. We also solicited 
biological and economic information relevant to making a critical 
habitat designation for the MHI insular false killer whale DPS. We have 
reviewed comments provided and the best available scientific 
information. We conclude that critical habitat is not determinable at 
this time for the following reasons: (1) Sufficient information is not 
currently available to assess impacts of designation; (2) sufficient 
information is not currently available on the geographical area 
occupied by the species; and (3) sufficient information is not 
currently available regarding the physical and biological features 
essential to conservation.

Information Solicited

    We request interested persons to submit relevant information 
related to the identification of critical habitat and essential 
physical or biological features for this species, as well as economic 
or other relevant impacts of designation of critical habitat, for the 
Main Hawaiian Islands insular false killer whale DPS. We solicit 
information from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party (see 
ADDRESSES).

Classification

National Environmental Policy Act (NEPA)

    ESA listing decisions are exempt from the requirements to prepare 
an environmental assessment or

[[Page 70939]]

environmental impact statement under the NEPA. See NOAA Administrative 
Order 216 6.03(e)(1) and the opinions in Pacific Legal Foundation v. 
Andrus, 657 F.2d 829 (6th Cir. 1981), and Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995). Thus, we have determined that this final 
listing determination for the MHI insular false killer whale DPS is 
exempt from the requirements of the NEPA of 1969.

Executive Order (E.O.) 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 rule is exempt from review under Executive Order 
(E.O.) 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federal 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this final rule. In order to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, the proposed rule was provided to the State of 
Hawaii, and the State was invited to comment. We have conferred with 
the State of Hawaii in the course of assessing the status of the MHI 
insular false killer DPS, and their comments and recommendations have 
been considered and incorporated into this final determination where 
applicable.

References

    A list of references cited in this notice is available upon request 
(see FOR FURTHER INFORMATION CONTACT). Additional information, 
including agency reports, is also available via our Web site at http://www.fpir.noaa.gov/PRD/prd_false_killer_whale.html.

List of Subjects in 50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: November 20, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 224 is amended 
as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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]

0
2. Revise paragraph (b) by adding, ``False killer whale (Pseudorca 
crassidens), Main Hawaiian Islands Insular distinct population 
segment;'' in alphabetical order.

[FR Doc. 2012-28766 Filed 11-27-12; 8:45 am]
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