[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53391-53397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21066]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130708594-3594-01]
RIN 0648-XC751


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To Delist the North Pacific Population of the Humpback Whale and Notice 
of Status Review

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

ACTION: 90-day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to identify 
the North Pacific population of the humpback whale (Megaptera 
novaeangliae) as a Distinct Population Segment (DPS) and delist the DPS 
under the Endangered Species Act (ESA). The humpback whale was listed 
as an endangered species in 1970 under the Endangered Species and 
Conservation Act of 1969, which was later superseded by the Endangered 
Species Act of 1973, as amended (ESA). We find that the petition viewed 
in the context of information readily available in our files presents 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted.
    We are hereby initiating a status review of the North Pacific 
population of the humpback whale to determine whether the petitioned 
action is warranted. To ensure that the status review is comprehensive, 
we are soliciting scientific and commercial information pertaining to 
this population from any interested party.

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by October 28, 2013.

ADDRESSES: You may submit information or data, identified by

[[Page 53392]]

``NOAA-NMFS-2013-0106,'' by any one of the following methods:
     Electronic Submissions: Submit all electronic information 
via the Federal eRulemaking Portal http://www.regulations.gov. To 
submit information via the e-Rulemaking Portal, first click the 
``submit a comment'' icon, then enter ``NOAA-NMFS-2013-0106'' in the 
keyword search. Locate the document you wish to provide information on 
from the resulting list and click on the ``Submit a Comment'' icon to 
the right of that line.
     Mail or Hand-Delivery: Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
    Instructions: All information received is a part of the public 
record and may be posted to http://www.regulations.gov without change. 
All personally identifiable information (for example, name, address, 
etc.) voluntarily submitted may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. NMFS will accept information from anonymous sources. 
Attachments to electronic submissions will be accepted in Microsoft 
Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

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

SUPPLEMENTARY INFORMATION: 

Background

    On April 17, 2013, we received a petition from the Hawai'i 
Fishermen's Alliance for Conservation and Tradition, Inc., to identify 
the North Pacific population of the humpback whale as a DPS and to 
delist it under the ESA. Copies of the petition are available upon 
request (see ADDRESSES, above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    In accordance with section 4(b)(3)(A) of the ESA, to the maximum 
extent practicable, within 90 days of receipt of a petition to list a 
species as threatened or endangered, the Secretary of Commerce is 
required to make a finding on whether that petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, and to promptly publish such 
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find 
that substantial scientific or commercial information in a petition 
indicates the petitioned action may be warranted, as is the case here, 
we are required to promptly commence a review of the status of the 
species concerned, during which we will conduct a comprehensive review 
of the best available scientific and commercial information. In such 
cases, within 12 months of receipt of the petition, we conclude the 
review with a finding as to whether, in fact, the petitioned action is 
warranted. Because the finding at the 12-month stage is based on a 
comprehensive review of all best available information, as compared to 
the narrow scope of review at the 90-day stage, which focuses on 
information set forth in the petition, this 90-day finding does not 
prejudge the outcome of the status review.
    Under the ESA, the term ``species'' means a species, a subspecies, 
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint policy 
issued by NMFS and the U.S. Fish and Wildlife Service (the Services) 
clarifies the Services' interpretation of the phrase ``Distinct 
Population Segment,'' or DPS (61 FR 4722; February 7, 1996). The DPS 
Policy requires the consideration of two elements when evaluating 
whether a vertebrate population segment qualifies as a DPS under the 
ESA: Discreteness of the population segment in relation to the 
remainder of the species; and, if discrete, the significance of the 
population segment to the species.
    A species is ``endangered'' if it is in danger of extinction 
throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether a species is threatened or endangered based on any 
one or a combination of the following section 4(a)(1) factors: (1) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    Under section 4(a)(1) of the ESA and the implementing regulations 
at 50 CFR 424.11(d), a species shall be removed from the list if the 
Secretary of Commerce determines, based on the best scientific and 
commercial data available after conducting a review of the species' 
status, that the species is no longer threatened or endangered because 
of one or a combination of the section 4(a)(1) factors. A species may 
be delisted only if such data substantiate that it is neither 
endangered nor threatened for one or more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the Services is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error (50 CFR 424.11(d)).
    ESA-implementing regulations issued jointly by the Services (50 CFR 
424.14(b)) define ``substantial information,'' in the context of 
reviewing a petition to list, delist, or reclassify a species, as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action may be 
warranted. As a general matter, these decisions hold that a petition 
need not establish a strong likelihood or a high probability that the 
petitioned

[[Page 53393]]

action is warranted to support a positive 90-day finding.
    To make a 90-day finding on a petition to list, delist, or 
reclassify a species, we evaluate whether the petition presents 
substantial scientific or commercial information indicating the 
petitioned action may be warranted, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates that the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be disregarded at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude it supports the petitioners' assertions. In other 
words, conclusive information indicating that the species may meet the 
ESA's requirements for delisting is not required to make a positive 90-
day finding.
    In evaluating whether a petition to delist a population is 
warranted, first we evaluate whether the information presented in the 
petition, along with the information readily available in our files, 
indicates that the petitioned entity constitutes a ``species'' eligible 
for delisting under the ESA. If so, we then evaluate whether the 
information indicates that the species no longer faces an extinction 
risk that is cause for concern; this may be indicated in information 
expressly discussing the species' status and trends, or in information 
describing impacts and threats to the species. We evaluate any 
information on specific demographic factors pertinent to evaluating 
extinction risk for the species (e.g., population abundance and trends, 
productivity, spatial structure, age structure, sex ratio, diversity, 
current and historical range, habitat integrity or fragmentation), and 
the potential contribution of identified demographic risks to 
extinction risk for the species. We then evaluate the potential links 
between these demographic risks and the causative impacts and threats 
identified in section 4(a)(1).

Distribution and Life History of the North Pacific Population of the 
Humpback Whale

    The following description of the distribution and life history of 
the North Pacific population of the humpback whale is from Fleming and 
Jackson (2011), Global Summary of the Humpback Whale, information that 
was recently compiled for NMFS' 5-year review of the humpback whale and 
published as a NOAA Technical Memorandum. Humpback whales are large, 
globally distributed, baleen whales with long pectoral flippers, 
distinct ventral fluke patterning, dark dorsal coloration, a highly 
varied acoustic call (termed song) and a diverse repertoire of surface 
behavior (Fleming and Jackson, 2011). The mating system for humpback 
whales is generally thought to be male-dominance polygyny, also 
described as a `floating lek' (Clapham, 1996). In this system, multiple 
males compete for individual females and exhibit competitive behavior. 
Humpback song is a long, complex vocalization (Payne and McVay, 1971) 
produced by males on the winter breeding grounds, and also, less 
commonly, on migration (Cato, 1991; Clapham and Mattila, 1990) and 
seasonally on feeding grounds (Clark and Clapham, 2004). Behavioral 
studies suggest that song is used to advertise for females, and/or to 
establish dominance among males (Darling and B[eacute]rub[eacute], 
2001; Darling et al., 2006; Tyack, 1981).
    In the Northern Hemisphere, sexual maturity has been estimated at 
5-11 years of age and appears to vary both within and among populations 
(Clapham, 1992; Gabriele et al., 2007b; Robbins, 2007). Gestation is 
11-12 months, and calves are born in sub-tropical waters (Matthews, 
1937). In the Northern Hemisphere, humpback whales exhibit maternal 
fidelity to specific feeding regions (Baker et al., 1990; Martin et 
al., 1984). The sex ratio of adults is roughly 1:1 males:females. The 
average generation time for humpback whales (the average age of all 
reproductively active females at carrying capacity) has been estimated 
at 21.5 years, based on a compilation of some of the life history 
parameters reviewed above (Taylor et al., 2007). Estimated annual rates 
of population increase range from 0-4 percent to 12.5 percent for 
different times and areas throughout the range and in the Northern 
Hemisphere (Baker et al., 1992; Barlow and Clapham, 1997; Clapham et 
al., 2003a; Steiger and Calambokidis, 2000); however, it is generally 
accepted that any rate above 11.8 percent per year is biologically 
impossible for this species (Zerbini et al., 2010). Annual adult 
mortality rates between 0.049 and 0.037 have been estimated for the 
Gulf of Maine and the North Pacific Hawaiian Islands populations 
(Barlow and Clapham, 1997; Mizroch et al., 2004). Using associations of 
calves with identified mothers (newborn calves are not uniquely 
identifiable) on North Pacific breeding and feeding grounds, Gabriele 
(2001) estimated 6-month mortality to be 0.182 (95-percent confidence 
intervals (CI) 0.023-0.518).
    In the Northern Hemisphere, humpback whales summer in the 
biologically productive northern higher latitudes and most individuals 
travel south to sub-tropical and tropical waters in winter to mate and 
calve. Migratory routes and behavior are likely to be maternally 
directed (Baker et al., 1990; Martin et al., 1984). Feeding areas are 
often near or over the continental shelf and associated with cooler 
temperatures and oceanographic or topographic features that serve to 
aggregate prey. Feeding areas in the North Pacific Ocean range widely 
in latitude from California north into the Bering Sea. There are at 
least four known breeding areas in the North Pacific Ocean (with 
different subareas) including the western Pacific Ocean and waters off 
the Hawaiian Islands, Mexico, and Central America.
    Humpback whales take in large mouthfuls of prey during feeding 
rather than continuously filtering food, as may be observed in some 
other large baleen whales (Ingebrigtsen, 1929). Humpback whales have a 
diverse diet that appears to vary slightly across feeding aggregation 
areas. The species is known to feed on both small schooling fish and on 
euphausiids (krill). Feeding behavior is varied as well and frequently 
features novel capture methods involving the creation of bubble 
structures to trap and corral fish; bubble nets, clouds and curtains 
are often observed when humpback whales are feeding on schooling fish 
(Hain et al., 1982). Lobtailing and repeated underwater looping 
movements have also been observed or recorded during surface feeding 
events, and it may be that certain feeding behavior is spread through 
the population by cultural transmission (Friedlaender et al., 2009; 
Weinrich et al., 1992).

Analysis of Petition and Information Readily Available in NMFS Files

    The petition contains information, much of it from Fleming and 
Jackson (2011), on the humpback whale, including its biology and 
ecology, geographic range and migratory

[[Page 53394]]

patterns, feeding ecology, reproduction, and genetics, including 
supporting information. The petitioner asserts that the North Pacific 
population of the humpback whale qualifies as a DPS under our DPS 
Policy and that it should be delisted if the best scientific and 
commercial information available substantiate that it is neither 
endangered nor threatened and protection under the ESA is no longer 
required. The petitioner notes that in determining whether a species 
should be delisted NMFS considers: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence. The petitioner also asserts that the 
interim goal set forth in NMFS' Final Recovery Plan for the Humpback 
Whale (NMFS, 1991) has been met and that the long-term goal has also 
likely been met.
    Below, we summarize our analysis and conclusions regarding the 
relevant information presented by the petitioner and in our files.

Does the information in the petition and in our files support 
identification of the North Pacific population as a DPS?

    To support the assertion that the North Pacific population of the 
humpback whale should be identified as a DPS, the petitioner provides 
information indicating that the population is discrete from other 
humpback whale populations and significant to the global species.
    The petitioner states that the population is discrete from other 
humpback whale populations because it is spatially separated, 
genetically distinct, and morphologically different from other 
populations. The petitioner notes that humpback whales in the northern 
and southern hemispheres of the Pacific Ocean are separated spatially 
based on their seasonal migratory patterns. In the North Pacific Ocean, 
humpback whales feed in higher latitudes during the boreal summer and 
breed in lower latitudes north of the equator during the boreal winter. 
In the South Pacific, humpback whales feed in the Antarctic during the 
austral summer (boreal winter) and breed in lower latitudes south of 
the equator during the austral winter (boreal summer). Individual 
humpback whales in the Southern Hemisphere differ from those in the two 
Northern Hemisphere oceans in the timing and location of reproduction. 
Differing estimates of testis weight from the breeding and feeding 
grounds (and no spermatozoa detected on feeding grounds (Symons and 
Weston, 1958)) indicate that there is seasonal variation in sperm 
production (Chittleborough, 1965; Omura, 1953), further supporting the 
asynchrony of seasonal mating between the Northern and Southern 
Hemisphere populations. Finally, ovulation is also seasonal 
(Chittleborough, 1957), suggesting that if individual whales travel 
between the hemispheres outside their usual estrus period, this 
seasonality may prohibit successful reproduction.
    The petitioner also notes that significant differences among the 
three principal oceanic populations in the North Pacific, North 
Atlantic, and Southern Oceans have been shown through mitochondrial DNA 
(mtDNA) and microsatellite analyses, suggesting that gene flow between 
oceans is minimal and migration between oceanic populations is limited 
to no more than a few females per generation (Baker et al., 1993, 1994; 
Valsechi et al., 1997). Of the 22 mtDNA haplotypes found in the world-
wide survey of 230 individuals, only three were found in more than one 
ocean (Baker et al., 1994), and of these three, only one was found to 
be common to the North Pacific and Southern Oceans. No haplotype was 
common to all three oceanic populations.
    The petitioner asserts that, morphologically, individual humpback 
whales in the Southern Hemisphere differ from those in the two Northern 
Hemisphere oceans in the patterning and extent of ventral fluke and 
lateral pigmentation (Rosenbaum et al., 1995). There are significantly 
more dark-colored flukes in the North Pacific populations of humpback 
whales, and significantly more light-colored flukes in the Southern 
Ocean populations (Rosenbaum et al., 1995).
    The petitioner asserts that the North Pacific population of the 
humpback whale is significant to the taxon to which it belongs because: 
(1) There would be a significant gap in the species' range if the North 
Pacific population were lost, as there are no other breeding 
populations in the northern hemisphere of the Pacific Ocean that 
migrate to higher latitudes of the North Pacific; and (2) the North 
Pacific population of the humpback whale has unique genetic traits. 
Migration between North Pacific, Southern Ocean, and North Atlantic 
populations of humpback whales is considered to be approximately one 
female per generation (Baker et al., 1994), making timely repopulation 
from the southern hemisphere unlikely if the North Pacific population 
were extirpated from its range. The petition suggests that the genetic 
uniqueness of the North Pacific population further increases the 
importance of the population, as complete extirpation of the North 
Pacific population would eliminate those genetic traits and lineages 
from the worldwide population of humpback whales. The information 
presented by the petitioner is also in our files, with Fleming and 
Jackson (2011) providing some of the most updated information. The 
petition presents substantial information indicating that the North 
Pacific population of the humpback whale may qualify as a DPS.

Does the information in the petition and in our files support the 
assertion that none of the ESA Section 4(a)(1) factors are contributing 
to the extinction risk of the North Pacific population of Humpback 
Whale?

    We must determine whether a species is an endangered species or a 
threatened species on the basis of any of the following factors: (1) 
The present or threatened destruction, modification, or curtailment of 
its habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) the 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence. Here we evaluate the 
information provided in the petition and in our files with regard to 
these factors to determine whether it would lead a reasonable person to 
conclude that none of these factors are contributing to the extinction 
risk of the North Pacific population of humpback whale.

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

    The petitioner states that we identified chemical pollution 
(including oil spills) and coastal development as two primary threats 
to humpback whale habitat in our 1991 recovery plan and notes that a 
recent assessment of humpback whales worldwide (Fleming and Jackson, 
2011) identified pollution as a threat but did not identify coastal 
development as a threat. The petitioner notes that humpback whale 
populations throughout the Pacific Ocean have more than doubled since 
the recovery plan was completed, during which time coastal development 
has continued in both breeding and feeding habitats. According to 
Fleming and Jackson (2011), the highest levels of DDT were found in 
whales feeding off southern California, a highly urbanized region of

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the coast with substantial discharges (Elfes et al., 2010). The health 
effects of different doses of contaminants are currently unknown for 
humpback whales (Krahn et al., 2004). There is evidence of detrimental 
health effects from these compounds in other mammals, namely disease 
susceptibility, neurotoxicity, reproductive and immune system 
impairment (Reijnders, 1986; DeSwart et al., 1996; Eriksson et al., 
1998). Contaminant levels have been suggested as a causative factor in 
lower reproductive rates found among humpback whales off southern 
California (Steiger and Calambokidis, 2000), but at present the 
threshold level for negative effects and transfer rates to calves are 
unknown for humpback whales. For humpback young of the year biopsy-
sampled in the Gulf of St. Lawrence, Metcalfe et al. (2004) found PCB 
levels similar to that of their mothers and other adult females, 
indicating that bioaccumulation can be rapid and that transplacental 
and lactational partitioning did little to reduce contaminant loads. 
According to the petition, however, the health effects of different 
contaminants are currently unknown for humpback whales (Fleming and 
Jackson, 2011), and Elfes (2010) suggests the levels found in humpback 
whales are unlikely to have a significant impact on their persistence 
as a population (Fleming and Jackson, 2011).
    The petition also notes that very little is known about the effects 
of oil or petroleum on cetaceans and especially on mysticetes (Fleming 
and Jackson, 2011), but that the Exxon Valdez oil spill of 1989 did not 
significantly impact humpback whales in Prince William Sound (Dahlheim 
and Von Ziegesar, 1993). The petitioner adds that naturally occurring 
toxin poisoning can be the cause of whale stranding events and is 
particularly implicated when unusual mortality events occur, but that 
the threat is negligible to North Pacific humpback whales because the 
several documented cases of these events have all occurred on the U.S. 
East Coast. As noted in Fleming and Jackson (2011), however, but not in 
the petition, regional-level stranding networks and sampling protocols 
in Oceania and the United States, Canada, Bahamas, and Australia can 
provide the means for monitoring trends in humpback whale mortality 
events and their causes, but there is still a great need for better 
diagnostic testing of marine mammal tissue samples from these stranding 
events to determine the cause of death (Gulland, 2006).
    Finally, the petitioner notes that while several possible impacts 
from global climate change have been suggested, including impacts to 
abundance and distribution of prey (Fleming and Jackson, 2011), there 
are no known adverse effects to humpback whales.
    On the basis of this information, the petitioner concludes that the 
North Pacific humpback whale population does not appear to be faced 
with any threatened destruction, modification, or curtailment of its 
habitat or range. We find that the petition presents substantial 
information indicating that the North Pacific humpback whale population 
may not be at risk from destruction, modification, or curtailment of 
its habitat or range.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petitioner asserts that the North Pacific humpback whale 
population is not subject to commercial harvest. It acknowledges that 
tissue from 17 different humpback whales has been detected in Japanese 
market whale products (1993-2009) through genetic monitoring surveys, 
but states that these takes are likely to have negligible impact on the 
population.
    The petitioner notes that although whale watching operations have 
been documented on many humpback whale feeding grounds, breeding 
grounds, and migratory corridors (O'Connor et al., 2009), Weinrich and 
Corbelli (2009) concluded that calving rate and calf survival at age 
two were not negatively affected by whale watching activities. 
Senigaglia et al. (2012) concluded that the most common response of 
humpback whales to whale watch boats is increased swimming speed and 
that little evidence exists that whale watching activities have 
significant effects on interbreath intervals and blow rates. The 
petitioner adds that efforts to manage whale watching operations 
include limiting the number of whale watching vessels, limiting vessel 
approach distances to whales, specifying the manner of operating around 
whales, and establishing limits to the period of exposure of the 
whales. Also, in Hawaii and Alaska, Federal law prohibits approaching 
humpback whales closer than 100 yards (91.4 m) when on the water or 
disrupting behavior (50 CFR 224.103). Operating any aircraft within 
1,000 feet (305 m) of humpback whales is also prohibited in Hawaii.
    On the basis of this information, the petitioner concludes that the 
North Pacific humpback whale population is not subject to 
overutilization for commercial or recreational purposes. We find that 
the petition presents substantial information indicating that the North 
Pacific humpback whale population may not be at risk from 
overutilization for commercial, recreational, scientific, or 
educational purposes.

Disease and Predation

    The petitioner states that there is little published information on 
humpback whale disease, but that the humpback whale does carry a 
crustacean ectoparasite (the cyamid Cyamus hoopis). While the whale is 
the main source of nutrition for this parasite (Schell et al., 2000), 
there is little evidence that it contributes to whale mortality 
(Fleming and Jackson, 2011). The petitioner also asserts that predation 
of the North Pacific population of the humpback whale by the killer 
whale (Orcinus orca) occurs at or near the wintering grounds, but that 
it is unlikely to be significantly affecting the humpback whale's 
recovery; attacks by large sharks and false killer whales (Pseudorca 
crassidens) are rare. The petitioner concludes that disease and 
predation are not significantly affecting the North Pacific humpback 
whale's recovery. We find that the petition presents substantial 
information indicating that disease and predation may not be 
contributing to the North Pacific humpback whale's extinction risk.

Inadequacy of Regulatory Mechanisms

    The petitioner asserts that the humpback whale is protected by 
local, Federal, and international regulatory mechanisms. It is 
protected as indigenous wildlife under Hawaii Administrative Rule 13-
124, which prohibits the capture, possession, injury, killing, 
destruction, sale, transport, or export of indigenous wildlife. All 
marine mammals are protected under the U.S. Marine Mammal Protection 
Act of 1972 (MMPA), which prohibits, with certain exceptions, the 
``take'' of marine mammals in U.S. waters and by U.S. citizens on the 
high seas, and the importation of marine mammals and marine mammal 
products into the United States. Because human-caused mortality and 
serious injury (M&SI) levels for the three North Pacific humpback whale 
stocks are below Potential Biological Removal (PBR) as calculated under 
the MMPA (Allen and Angliss, 2012; Caretta et al., 2011), no Take 
Reduction Team has been convened to date for these stocks to

[[Page 53396]]

develop a plan to reduce incidental take to sustainable levels.
    The Hawaii breeding population of the North Pacific humpback whale 
is protected by the Hawaiian Islands Humpback Whale National Marine 
Sanctuary, and five additional National Marine Sanctuaries are located 
within the North Pacific humpback whale range: Olympic Coast, Cordell 
Bank, Gulf of the Farallones, Monterey Bay, and Channel Islands. 
Additional protection for humpback whales and their habitat is provided 
by the Papahanaumokuakea Marine National Monument, which encompasses 
139,797 square miles (~36.2 hectares) of ocean around the Northwestern 
Hawaiian Islands.
    Internationally, humpback whales are protected under the 
International Whaling Commission (IWC), established under the 
International Convention for the Regulation of Whaling of 1946 (ICRW). 
The IWC prohibited commercial whaling of North Pacific humpback whales 
in 1966, and an international moratorium on the whaling of all large 
whale species was established in 1982. Some nations have continued to 
hunt whales under Article VIII of the ICRW, which allows the killing of 
whales for scientific research purposes, but no humpback whales are 
currently declared as a target of scientific research takes. The 
current moratorium on commercial whaling will remain in place unless a 
75-percent majority of IWC signatory members vote to lift it.
    We find that the petition presents substantial information 
indicating that the North Pacific population of the humpback whale may 
be sufficiently protected by state, Federal, and international 
regulatory mechanisms.

Other Natural or Man-Made Factors

    As the petitioner points out, the NMFS recovery plan for the 
humpback whale identified several known and potential impacts to 
humpback whales, including collision with ships, entrapment and 
entanglement in fishing gear, and acoustic disturbance (NMFS, 1991).
    The petitioner notes that collisions with ships have been reported 
in both feeding and breeding areas of the North Pacific humpback whale 
range, adding that ship strikes may result in life-threatening trauma 
or mortality for the whale, though the severity of injuries depends 
primarily on speed and size of the vessel. According to Fleming and 
Jackson (2011), humpback whales are the second most commonly reported 
species involved in vessel strikes after fin whales. Calves and 
juvenile whales are thought to be more susceptible to vessel collisions 
(Wiley and Asmutis, 1995). The petitioner provides some information on 
vessel strike reports and attributes the increased number of ship 
strike reports in Hawaii and Alaska over the years to the increasing 
abundance of humpback whale populations and the increase in vessels 
operating in humpback whale habitat (Lammers et al., 2003). According 
to the petitioner, a large percentage of ship strikes in Hawaii and 
Alaska are non-fatal and primarily occur with pleasure crafts and 
commercial whale watching vessels (Douglas et al., 2008). The 
petitioner notes that the most recent stock assessment reports for the 
three North Pacific humpback whale stocks report a small number of ship 
strikes. For the California/Oregon/Washington stock, the average number 
of documented humpback whale deaths by ship strikes for 2004-2008 was 
0.4 animals per year, with a PBR of 11.3 (Caretta et al., 2011) and for 
the Central North Pacific stock, the average number of M&SI from ship 
strikes for 2003-2007 was estimated at 1.6 animals per year, with a PBR 
of 61.2 (Allen and Angliss, 2012). However, the petitioner acknowledges 
that no estimate of ship strike mortality is reported for the Western 
North Pacific stock. The petitioner concludes that the available data 
on ship strikes in the North Pacific show that vessel strikes are not 
affecting the continued existence of humpback whales. The petition 
presents substantial information indicating that vessel strikes may not 
be affecting the continued existence of humpback whales in the North 
Pacific.
    Entanglement in fishing gear and other marine debris is a 
documented source of injury and mortality to cetaceans. Since 2002, the 
Hawaiian Islands Large Whale Entanglement Response Network has 
confirmed 112 reports of entangled large whales as true entanglement of 
large whales, with all but three reports involving humpback whales 
(Lyman, 2012). The petitioner notes that these reports have increased 
over time, corresponding to the increasing wintering population in 
Hawaiian waters. Though not noted in the petition, NMFS' Alaska Region 
received over 170 reports of humpback whale entanglement (both 
confirmed and unconfirmed) in Alaska from 1990-2011. According to the 
petitioner, the average number of humpback whales resulting in M&SI 
from commercial fisheries is 3.2 animals for the California/Oregon/
Washington stock (Caretta et al., 2011) and 3.8 animals for the Central 
Pacific stock (Allen and Angliss, 2012), and these interaction rates 
are below the stocks' calculated PBRs, suggesting that fishery 
interactions do not affect the continued existence of these stocks. 
Again, limited information is available on entanglement and fishery 
interactions in the western Pacific (Allen and Angliss, 2012). We find 
that the petition presents substantial information indicating that 
fishery interactions may not be affecting the continued existence of 
these stocks.
    Acoustic disturbance is another threat to cetaceans, especially 
anthropogenic low-frequency sound produced by shipping, oil and gas 
development, defense related activities, and research activities. The 
petitioner asserts that available evidence suggests that anthropogenic 
noise does not threaten the continued existence of North Pacific 
humpback whales, pointing out that only one record is known in which 
two humpback whales were stranded with extensive damage to the temporal 
bones from a large-scale explosion (Fleming and Jackson, 2011). Impact 
of low-frequency noise on variation of humpback whale songs appears to 
be minimal, though studies have shown that song length increased in 
response to low-frequency broadcasts (Miller et al., 2000; Fristrup et 
al., 2003).
    The petitioner concludes that the steady increase in the humpback 
whale population throughout the North Pacific indicates that these 
threats have not cumulatively curtailed the recovery and growth of the 
humpback whale population, and therefore, are not affecting its 
continued existence. We find that the petition presents substantial 
information indicating that these factors may not be contributing to 
the extinction risk of this population.

Petition Finding

    Based on the above information and criteria specified in 50 CFR 
424.14(b)(2), we find that the petitioners present substantial 
scientific and commercial information indicating that identifying the 
North Pacific population of humpback whale as a DPS and delisting this 
DPS may be warranted. Under section 4(b)(3)(A) of the ESA, an 
affirmative 90-day finding requires that we promptly commence a status 
review of the petitioned species (16 U.S.C. 1533 (b)(3)(A)).

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information on the 
humpback whale, with a focus on the North Pacific population, in the 
following areas: (1) Historical and current population status and 
trends; (2) historical and current

[[Page 53397]]

distribution; (3) migratory movements and behavior; (4) genetic 
population structure, as compared to other populations; (5) current or 
planned activities that may adversely impact humpback whales; and (6) 
ongoing efforts to conserve humpback whales. We request that all 
information and data be accompanied by supporting documentation such as 
(1) maps, bibliographic references, or reprints of pertinent 
publications; and (2) the submitter's name, address, and any 
association, institution, or business that the person represents.

References Cited

    A complete list of references is available upon request from the 
NMFS Office of Protected Resources (see ADDRESSES).

Authority

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

    Dated: August 22, 2013.
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.
[FR Doc. 2013-21066 Filed 8-28-13; 8:45 am]
BILLING CODE 3510-22-P