NACO

National Association of Charterboat Operators

Insular False Killer Whale Listed as Endangered

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.

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.

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peer review, public comments, the BRT's reevaluation of the DPS (Oleson et al., 2012) and other available published and unpublished information, and we have consulted with species experts and other individuals familiar with MHI insular false killer whales.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 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 regulationsalso 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.

 

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 belowalong 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 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).

    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.

    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 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 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 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.

   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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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