[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53391-53397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21066]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 130708594-3594-01]
RIN 0648-XC751
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To Delist the North Pacific Population of the Humpback Whale and Notice
of Status Review
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: 90-day petition finding, request for information, and
initiation of status review.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to identify
the North Pacific population of the humpback whale (Megaptera
novaeangliae) as a Distinct Population Segment (DPS) and delist the DPS
under the Endangered Species Act (ESA). The humpback whale was listed
as an endangered species in 1970 under the Endangered Species and
Conservation Act of 1969, which was later superseded by the Endangered
Species Act of 1973, as amended (ESA). We find that the petition viewed
in the context of information readily available in our files presents
substantial scientific and commercial information indicating that the
petitioned action may be warranted.
We are hereby initiating a status review of the North Pacific
population of the humpback whale to determine whether the petitioned
action is warranted. To ensure that the status review is comprehensive,
we are soliciting scientific and commercial information pertaining to
this population from any interested party.
DATES: Scientific and commercial information pertinent to the
petitioned action must be received by October 28, 2013.
ADDRESSES: You may submit information or data, identified by
[[Page 53392]]
``NOAA-NMFS-2013-0106,'' by any one of the following methods:
Electronic Submissions: Submit all electronic information
via the Federal eRulemaking Portal http://www.regulations.gov. To
submit information via the e-Rulemaking Portal, first click the
``submit a comment'' icon, then enter ``NOAA-NMFS-2013-0106'' in the
keyword search. Locate the document you wish to provide information on
from the resulting list and click on the ``Submit a Comment'' icon to
the right of that line.
Mail or Hand-Delivery: Office of Protected Resources,
NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Instructions: All information received is a part of the public
record and may be posted to http://www.regulations.gov without change.
All personally identifiable information (for example, name, address,
etc.) voluntarily submitted may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information. NMFS will accept information from anonymous sources.
Attachments to electronic submissions will be accepted in Microsoft
Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, Office of
Protected Resources, (301) 427-8469.
SUPPLEMENTARY INFORMATION:
Background
On April 17, 2013, we received a petition from the Hawai'i
Fishermen's Alliance for Conservation and Tradition, Inc., to identify
the North Pacific population of the humpback whale as a DPS and to
delist it under the ESA. Copies of the petition are available upon
request (see ADDRESSES, above).
ESA Statutory, Regulatory, and Policy Provisions and Evaluation
Framework
In accordance with section 4(b)(3)(A) of the ESA, to the maximum
extent practicable, within 90 days of receipt of a petition to list a
species as threatened or endangered, the Secretary of Commerce is
required to make a finding on whether that petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted, and to promptly publish such
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find
that substantial scientific or commercial information in a petition
indicates the petitioned action may be warranted, as is the case here,
we are required to promptly commence a review of the status of the
species concerned, during which we will conduct a comprehensive review
of the best available scientific and commercial information. In such
cases, within 12 months of receipt of the petition, we conclude the
review with a finding as to whether, in fact, the petitioned action is
warranted. Because the finding at the 12-month stage is based on a
comprehensive review of all best available information, as compared to
the narrow scope of review at the 90-day stage, which focuses on
information set forth in the petition, this 90-day finding does not
prejudge the outcome of the status review.
Under the ESA, the term ``species'' means a species, a subspecies,
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint policy
issued by NMFS and the U.S. Fish and Wildlife Service (the Services)
clarifies the Services' interpretation of the phrase ``Distinct
Population Segment,'' or DPS (61 FR 4722; February 7, 1996). The DPS
Policy requires the consideration of two elements when evaluating
whether a vertebrate population segment qualifies as a DPS under the
ESA: Discreteness of the population segment in relation to the
remainder of the species; and, if discrete, the significance of the
population segment to the species.
A species is ``endangered'' if it is in danger of extinction
throughout all or a significant portion of its range, and
``threatened'' if it is likely to become endangered within the
foreseeable future throughout all or a significant portion of its range
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and
(20)). Pursuant to the ESA and our implementing regulations, we
determine whether a species is threatened or endangered based on any
one or a combination of the following section 4(a)(1) factors: (1) The
present or threatened destruction, modification, or curtailment of
habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4)
inadequacy of existing regulatory mechanisms; and (5) any other natural
or manmade factors affecting the species' existence (16 U.S.C.
1533(a)(1), 50 CFR 424.11(c)).
Under section 4(a)(1) of the ESA and the implementing regulations
at 50 CFR 424.11(d), a species shall be removed from the list if the
Secretary of Commerce determines, based on the best scientific and
commercial data available after conducting a review of the species'
status, that the species is no longer threatened or endangered because
of one or a combination of the section 4(a)(1) factors. A species may
be delisted only if such data substantiate that it is neither
endangered nor threatened for one or more of the following reasons:
(1) Extinction. Unless all individuals of the listed species had
been previously identified and located, and were later found to be
extirpated from their previous range, a sufficient period of time must
be allowed before delisting to indicate clearly that the species is
extinct.
(2) Recovery. The principal goal of the Services is to return
listed species to a point at which protection under the ESA is no
longer required. A species may be delisted on the basis of recovery
only if the best scientific and commercial data available indicate that
it is no longer endangered or threatened.
(3) Original data for classification in error. Subsequent
investigations may show that the best scientific or commercial data
available when the species was listed, or the interpretation of such
data, were in error (50 CFR 424.11(d)).
ESA-implementing regulations issued jointly by the Services (50 CFR
424.14(b)) define ``substantial information,'' in the context of
reviewing a petition to list, delist, or reclassify a species, as the
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted. In
evaluating whether substantial information is contained in a petition,
the Secretary must consider whether the petition (1) Clearly indicates
the administrative measure recommended and gives the scientific and any
common name of the species involved; (2) contains detailed narrative
justification for the recommended measure, describing, based on
available information, past and present numbers and distribution of the
species involved and any threats faced by the species; (3) provides
information regarding the status of the species over all or a
significant portion of its range; and (4) is accompanied by the
appropriate supporting documentation in the form of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
Judicial decisions have clarified the appropriate scope and
limitations of the Services' review of petitions at the 90-day finding
stage, in making a determination that a petitioned action may be
warranted. As a general matter, these decisions hold that a petition
need not establish a strong likelihood or a high probability that the
petitioned
[[Page 53393]]
action is warranted to support a positive 90-day finding.
To make a 90-day finding on a petition to list, delist, or
reclassify a species, we evaluate whether the petition presents
substantial scientific or commercial information indicating the
petitioned action may be warranted, including its references and the
information readily available in our files. We do not conduct
additional research, and we do not solicit information from parties
outside the agency to help us in evaluating the petition. We will
accept the petitioners' sources and characterizations of the
information presented if they appear to be based on accepted scientific
principles, unless we have specific information in our files that
indicates that the petition's information is incorrect, unreliable,
obsolete, or otherwise irrelevant to the requested action. Information
that is susceptible to more than one interpretation or that is
contradicted by other available information will not be disregarded at
the 90-day finding stage, so long as it is reliable and a reasonable
person would conclude it supports the petitioners' assertions. In other
words, conclusive information indicating that the species may meet the
ESA's requirements for delisting is not required to make a positive 90-
day finding.
In evaluating whether a petition to delist a population is
warranted, first we evaluate whether the information presented in the
petition, along with the information readily available in our files,
indicates that the petitioned entity constitutes a ``species'' eligible
for delisting under the ESA. If so, we then evaluate whether the
information indicates that the species no longer faces an extinction
risk that is cause for concern; this may be indicated in information
expressly discussing the species' status and trends, or in information
describing impacts and threats to the species. We evaluate any
information on specific demographic factors pertinent to evaluating
extinction risk for the species (e.g., population abundance and trends,
productivity, spatial structure, age structure, sex ratio, diversity,
current and historical range, habitat integrity or fragmentation), and
the potential contribution of identified demographic risks to
extinction risk for the species. We then evaluate the potential links
between these demographic risks and the causative impacts and threats
identified in section 4(a)(1).
Distribution and Life History of the North Pacific Population of the
Humpback Whale
The following description of the distribution and life history of
the North Pacific population of the humpback whale is from Fleming and
Jackson (2011), Global Summary of the Humpback Whale, information that
was recently compiled for NMFS' 5-year review of the humpback whale and
published as a NOAA Technical Memorandum. Humpback whales are large,
globally distributed, baleen whales with long pectoral flippers,
distinct ventral fluke patterning, dark dorsal coloration, a highly
varied acoustic call (termed song) and a diverse repertoire of surface
behavior (Fleming and Jackson, 2011). The mating system for humpback
whales is generally thought to be male-dominance polygyny, also
described as a `floating lek' (Clapham, 1996). In this system, multiple
males compete for individual females and exhibit competitive behavior.
Humpback song is a long, complex vocalization (Payne and McVay, 1971)
produced by males on the winter breeding grounds, and also, less
commonly, on migration (Cato, 1991; Clapham and Mattila, 1990) and
seasonally on feeding grounds (Clark and Clapham, 2004). Behavioral
studies suggest that song is used to advertise for females, and/or to
establish dominance among males (Darling and B[eacute]rub[eacute],
2001; Darling et al., 2006; Tyack, 1981).
In the Northern Hemisphere, sexual maturity has been estimated at
5-11 years of age and appears to vary both within and among populations
(Clapham, 1992; Gabriele et al., 2007b; Robbins, 2007). Gestation is
11-12 months, and calves are born in sub-tropical waters (Matthews,
1937). In the Northern Hemisphere, humpback whales exhibit maternal
fidelity to specific feeding regions (Baker et al., 1990; Martin et
al., 1984). The sex ratio of adults is roughly 1:1 males:females. The
average generation time for humpback whales (the average age of all
reproductively active females at carrying capacity) has been estimated
at 21.5 years, based on a compilation of some of the life history
parameters reviewed above (Taylor et al., 2007). Estimated annual rates
of population increase range from 0-4 percent to 12.5 percent for
different times and areas throughout the range and in the Northern
Hemisphere (Baker et al., 1992; Barlow and Clapham, 1997; Clapham et
al., 2003a; Steiger and Calambokidis, 2000); however, it is generally
accepted that any rate above 11.8 percent per year is biologically
impossible for this species (Zerbini et al., 2010). Annual adult
mortality rates between 0.049 and 0.037 have been estimated for the
Gulf of Maine and the North Pacific Hawaiian Islands populations
(Barlow and Clapham, 1997; Mizroch et al., 2004). Using associations of
calves with identified mothers (newborn calves are not uniquely
identifiable) on North Pacific breeding and feeding grounds, Gabriele
(2001) estimated 6-month mortality to be 0.182 (95-percent confidence
intervals (CI) 0.023-0.518).
In the Northern Hemisphere, humpback whales summer in the
biologically productive northern higher latitudes and most individuals
travel south to sub-tropical and tropical waters in winter to mate and
calve. Migratory routes and behavior are likely to be maternally
directed (Baker et al., 1990; Martin et al., 1984). Feeding areas are
often near or over the continental shelf and associated with cooler
temperatures and oceanographic or topographic features that serve to
aggregate prey. Feeding areas in the North Pacific Ocean range widely
in latitude from California north into the Bering Sea. There are at
least four known breeding areas in the North Pacific Ocean (with
different subareas) including the western Pacific Ocean and waters off
the Hawaiian Islands, Mexico, and Central America.
Humpback whales take in large mouthfuls of prey during feeding
rather than continuously filtering food, as may be observed in some
other large baleen whales (Ingebrigtsen, 1929). Humpback whales have a
diverse diet that appears to vary slightly across feeding aggregation
areas. The species is known to feed on both small schooling fish and on
euphausiids (krill). Feeding behavior is varied as well and frequently
features novel capture methods involving the creation of bubble
structures to trap and corral fish; bubble nets, clouds and curtains
are often observed when humpback whales are feeding on schooling fish
(Hain et al., 1982). Lobtailing and repeated underwater looping
movements have also been observed or recorded during surface feeding
events, and it may be that certain feeding behavior is spread through
the population by cultural transmission (Friedlaender et al., 2009;
Weinrich et al., 1992).
Analysis of Petition and Information Readily Available in NMFS Files
The petition contains information, much of it from Fleming and
Jackson (2011), on the humpback whale, including its biology and
ecology, geographic range and migratory
[[Page 53394]]
patterns, feeding ecology, reproduction, and genetics, including
supporting information. The petitioner asserts that the North Pacific
population of the humpback whale qualifies as a DPS under our DPS
Policy and that it should be delisted if the best scientific and
commercial information available substantiate that it is neither
endangered nor threatened and protection under the ESA is no longer
required. The petitioner notes that in determining whether a species
should be delisted NMFS considers: (1) The present or threatened
destruction, modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting its continued existence. The petitioner also asserts that the
interim goal set forth in NMFS' Final Recovery Plan for the Humpback
Whale (NMFS, 1991) has been met and that the long-term goal has also
likely been met.
Below, we summarize our analysis and conclusions regarding the
relevant information presented by the petitioner and in our files.
Does the information in the petition and in our files support
identification of the North Pacific population as a DPS?
To support the assertion that the North Pacific population of the
humpback whale should be identified as a DPS, the petitioner provides
information indicating that the population is discrete from other
humpback whale populations and significant to the global species.
The petitioner states that the population is discrete from other
humpback whale populations because it is spatially separated,
genetically distinct, and morphologically different from other
populations. The petitioner notes that humpback whales in the northern
and southern hemispheres of the Pacific Ocean are separated spatially
based on their seasonal migratory patterns. In the North Pacific Ocean,
humpback whales feed in higher latitudes during the boreal summer and
breed in lower latitudes north of the equator during the boreal winter.
In the South Pacific, humpback whales feed in the Antarctic during the
austral summer (boreal winter) and breed in lower latitudes south of
the equator during the austral winter (boreal summer). Individual
humpback whales in the Southern Hemisphere differ from those in the two
Northern Hemisphere oceans in the timing and location of reproduction.
Differing estimates of testis weight from the breeding and feeding
grounds (and no spermatozoa detected on feeding grounds (Symons and
Weston, 1958)) indicate that there is seasonal variation in sperm
production (Chittleborough, 1965; Omura, 1953), further supporting the
asynchrony of seasonal mating between the Northern and Southern
Hemisphere populations. Finally, ovulation is also seasonal
(Chittleborough, 1957), suggesting that if individual whales travel
between the hemispheres outside their usual estrus period, this
seasonality may prohibit successful reproduction.
The petitioner also notes that significant differences among the
three principal oceanic populations in the North Pacific, North
Atlantic, and Southern Oceans have been shown through mitochondrial DNA
(mtDNA) and microsatellite analyses, suggesting that gene flow between
oceans is minimal and migration between oceanic populations is limited
to no more than a few females per generation (Baker et al., 1993, 1994;
Valsechi et al., 1997). Of the 22 mtDNA haplotypes found in the world-
wide survey of 230 individuals, only three were found in more than one
ocean (Baker et al., 1994), and of these three, only one was found to
be common to the North Pacific and Southern Oceans. No haplotype was
common to all three oceanic populations.
The petitioner asserts that, morphologically, individual humpback
whales in the Southern Hemisphere differ from those in the two Northern
Hemisphere oceans in the patterning and extent of ventral fluke and
lateral pigmentation (Rosenbaum et al., 1995). There are significantly
more dark-colored flukes in the North Pacific populations of humpback
whales, and significantly more light-colored flukes in the Southern
Ocean populations (Rosenbaum et al., 1995).
The petitioner asserts that the North Pacific population of the
humpback whale is significant to the taxon to which it belongs because:
(1) There would be a significant gap in the species' range if the North
Pacific population were lost, as there are no other breeding
populations in the northern hemisphere of the Pacific Ocean that
migrate to higher latitudes of the North Pacific; and (2) the North
Pacific population of the humpback whale has unique genetic traits.
Migration between North Pacific, Southern Ocean, and North Atlantic
populations of humpback whales is considered to be approximately one
female per generation (Baker et al., 1994), making timely repopulation
from the southern hemisphere unlikely if the North Pacific population
were extirpated from its range. The petition suggests that the genetic
uniqueness of the North Pacific population further increases the
importance of the population, as complete extirpation of the North
Pacific population would eliminate those genetic traits and lineages
from the worldwide population of humpback whales. The information
presented by the petitioner is also in our files, with Fleming and
Jackson (2011) providing some of the most updated information. The
petition presents substantial information indicating that the North
Pacific population of the humpback whale may qualify as a DPS.
Does the information in the petition and in our files support the
assertion that none of the ESA Section 4(a)(1) factors are contributing
to the extinction risk of the North Pacific population of Humpback
Whale?
We must determine whether a species is an endangered species or a
threatened species on the basis of any of the following factors: (1)
The present or threatened destruction, modification, or curtailment of
its habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4) the
inadequacy of existing regulatory mechanisms; or (5) other natural or
manmade factors affecting its continued existence. Here we evaluate the
information provided in the petition and in our files with regard to
these factors to determine whether it would lead a reasonable person to
conclude that none of these factors are contributing to the extinction
risk of the North Pacific population of humpback whale.
The Present or Threatened Destruction, Modification, or Curtailment of
Its Habitat or Range
The petitioner states that we identified chemical pollution
(including oil spills) and coastal development as two primary threats
to humpback whale habitat in our 1991 recovery plan and notes that a
recent assessment of humpback whales worldwide (Fleming and Jackson,
2011) identified pollution as a threat but did not identify coastal
development as a threat. The petitioner notes that humpback whale
populations throughout the Pacific Ocean have more than doubled since
the recovery plan was completed, during which time coastal development
has continued in both breeding and feeding habitats. According to
Fleming and Jackson (2011), the highest levels of DDT were found in
whales feeding off southern California, a highly urbanized region of
[[Page 53395]]
the coast with substantial discharges (Elfes et al., 2010). The health
effects of different doses of contaminants are currently unknown for
humpback whales (Krahn et al., 2004). There is evidence of detrimental
health effects from these compounds in other mammals, namely disease
susceptibility, neurotoxicity, reproductive and immune system
impairment (Reijnders, 1986; DeSwart et al., 1996; Eriksson et al.,
1998). Contaminant levels have been suggested as a causative factor in
lower reproductive rates found among humpback whales off southern
California (Steiger and Calambokidis, 2000), but at present the
threshold level for negative effects and transfer rates to calves are
unknown for humpback whales. For humpback young of the year biopsy-
sampled in the Gulf of St. Lawrence, Metcalfe et al. (2004) found PCB
levels similar to that of their mothers and other adult females,
indicating that bioaccumulation can be rapid and that transplacental
and lactational partitioning did little to reduce contaminant loads.
According to the petition, however, the health effects of different
contaminants are currently unknown for humpback whales (Fleming and
Jackson, 2011), and Elfes (2010) suggests the levels found in humpback
whales are unlikely to have a significant impact on their persistence
as a population (Fleming and Jackson, 2011).
The petition also notes that very little is known about the effects
of oil or petroleum on cetaceans and especially on mysticetes (Fleming
and Jackson, 2011), but that the Exxon Valdez oil spill of 1989 did not
significantly impact humpback whales in Prince William Sound (Dahlheim
and Von Ziegesar, 1993). The petitioner adds that naturally occurring
toxin poisoning can be the cause of whale stranding events and is
particularly implicated when unusual mortality events occur, but that
the threat is negligible to North Pacific humpback whales because the
several documented cases of these events have all occurred on the U.S.
East Coast. As noted in Fleming and Jackson (2011), however, but not in
the petition, regional-level stranding networks and sampling protocols
in Oceania and the United States, Canada, Bahamas, and Australia can
provide the means for monitoring trends in humpback whale mortality
events and their causes, but there is still a great need for better
diagnostic testing of marine mammal tissue samples from these stranding
events to determine the cause of death (Gulland, 2006).
Finally, the petitioner notes that while several possible impacts
from global climate change have been suggested, including impacts to
abundance and distribution of prey (Fleming and Jackson, 2011), there
are no known adverse effects to humpback whales.
On the basis of this information, the petitioner concludes that the
North Pacific humpback whale population does not appear to be faced
with any threatened destruction, modification, or curtailment of its
habitat or range. We find that the petition presents substantial
information indicating that the North Pacific humpback whale population
may not be at risk from destruction, modification, or curtailment of
its habitat or range.
Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The petitioner asserts that the North Pacific humpback whale
population is not subject to commercial harvest. It acknowledges that
tissue from 17 different humpback whales has been detected in Japanese
market whale products (1993-2009) through genetic monitoring surveys,
but states that these takes are likely to have negligible impact on the
population.
The petitioner notes that although whale watching operations have
been documented on many humpback whale feeding grounds, breeding
grounds, and migratory corridors (O'Connor et al., 2009), Weinrich and
Corbelli (2009) concluded that calving rate and calf survival at age
two were not negatively affected by whale watching activities.
Senigaglia et al. (2012) concluded that the most common response of
humpback whales to whale watch boats is increased swimming speed and
that little evidence exists that whale watching activities have
significant effects on interbreath intervals and blow rates. The
petitioner adds that efforts to manage whale watching operations
include limiting the number of whale watching vessels, limiting vessel
approach distances to whales, specifying the manner of operating around
whales, and establishing limits to the period of exposure of the
whales. Also, in Hawaii and Alaska, Federal law prohibits approaching
humpback whales closer than 100 yards (91.4 m) when on the water or
disrupting behavior (50 CFR 224.103). Operating any aircraft within
1,000 feet (305 m) of humpback whales is also prohibited in Hawaii.
On the basis of this information, the petitioner concludes that the
North Pacific humpback whale population is not subject to
overutilization for commercial or recreational purposes. We find that
the petition presents substantial information indicating that the North
Pacific humpback whale population may not be at risk from
overutilization for commercial, recreational, scientific, or
educational purposes.
Disease and Predation
The petitioner states that there is little published information on
humpback whale disease, but that the humpback whale does carry a
crustacean ectoparasite (the cyamid Cyamus hoopis). While the whale is
the main source of nutrition for this parasite (Schell et al., 2000),
there is little evidence that it contributes to whale mortality
(Fleming and Jackson, 2011). The petitioner also asserts that predation
of the North Pacific population of the humpback whale by the killer
whale (Orcinus orca) occurs at or near the wintering grounds, but that
it is unlikely to be significantly affecting the humpback whale's
recovery; attacks by large sharks and false killer whales (Pseudorca
crassidens) are rare. The petitioner concludes that disease and
predation are not significantly affecting the North Pacific humpback
whale's recovery. We find that the petition presents substantial
information indicating that disease and predation may not be
contributing to the North Pacific humpback whale's extinction risk.
Inadequacy of Regulatory Mechanisms
The petitioner asserts that the humpback whale is protected by
local, Federal, and international regulatory mechanisms. It is
protected as indigenous wildlife under Hawaii Administrative Rule 13-
124, which prohibits the capture, possession, injury, killing,
destruction, sale, transport, or export of indigenous wildlife. All
marine mammals are protected under the U.S. Marine Mammal Protection
Act of 1972 (MMPA), which prohibits, with certain exceptions, the
``take'' of marine mammals in U.S. waters and by U.S. citizens on the
high seas, and the importation of marine mammals and marine mammal
products into the United States. Because human-caused mortality and
serious injury (M&SI) levels for the three North Pacific humpback whale
stocks are below Potential Biological Removal (PBR) as calculated under
the MMPA (Allen and Angliss, 2012; Caretta et al., 2011), no Take
Reduction Team has been convened to date for these stocks to
[[Page 53396]]
develop a plan to reduce incidental take to sustainable levels.
The Hawaii breeding population of the North Pacific humpback whale
is protected by the Hawaiian Islands Humpback Whale National Marine
Sanctuary, and five additional National Marine Sanctuaries are located
within the North Pacific humpback whale range: Olympic Coast, Cordell
Bank, Gulf of the Farallones, Monterey Bay, and Channel Islands.
Additional protection for humpback whales and their habitat is provided
by the Papahanaumokuakea Marine National Monument, which encompasses
139,797 square miles (~36.2 hectares) of ocean around the Northwestern
Hawaiian Islands.
Internationally, humpback whales are protected under the
International Whaling Commission (IWC), established under the
International Convention for the Regulation of Whaling of 1946 (ICRW).
The IWC prohibited commercial whaling of North Pacific humpback whales
in 1966, and an international moratorium on the whaling of all large
whale species was established in 1982. Some nations have continued to
hunt whales under Article VIII of the ICRW, which allows the killing of
whales for scientific research purposes, but no humpback whales are
currently declared as a target of scientific research takes. The
current moratorium on commercial whaling will remain in place unless a
75-percent majority of IWC signatory members vote to lift it.
We find that the petition presents substantial information
indicating that the North Pacific population of the humpback whale may
be sufficiently protected by state, Federal, and international
regulatory mechanisms.
Other Natural or Man-Made Factors
As the petitioner points out, the NMFS recovery plan for the
humpback whale identified several known and potential impacts to
humpback whales, including collision with ships, entrapment and
entanglement in fishing gear, and acoustic disturbance (NMFS, 1991).
The petitioner notes that collisions with ships have been reported
in both feeding and breeding areas of the North Pacific humpback whale
range, adding that ship strikes may result in life-threatening trauma
or mortality for the whale, though the severity of injuries depends
primarily on speed and size of the vessel. According to Fleming and
Jackson (2011), humpback whales are the second most commonly reported
species involved in vessel strikes after fin whales. Calves and
juvenile whales are thought to be more susceptible to vessel collisions
(Wiley and Asmutis, 1995). The petitioner provides some information on
vessel strike reports and attributes the increased number of ship
strike reports in Hawaii and Alaska over the years to the increasing
abundance of humpback whale populations and the increase in vessels
operating in humpback whale habitat (Lammers et al., 2003). According
to the petitioner, a large percentage of ship strikes in Hawaii and
Alaska are non-fatal and primarily occur with pleasure crafts and
commercial whale watching vessels (Douglas et al., 2008). The
petitioner notes that the most recent stock assessment reports for the
three North Pacific humpback whale stocks report a small number of ship
strikes. For the California/Oregon/Washington stock, the average number
of documented humpback whale deaths by ship strikes for 2004-2008 was
0.4 animals per year, with a PBR of 11.3 (Caretta et al., 2011) and for
the Central North Pacific stock, the average number of M&SI from ship
strikes for 2003-2007 was estimated at 1.6 animals per year, with a PBR
of 61.2 (Allen and Angliss, 2012). However, the petitioner acknowledges
that no estimate of ship strike mortality is reported for the Western
North Pacific stock. The petitioner concludes that the available data
on ship strikes in the North Pacific show that vessel strikes are not
affecting the continued existence of humpback whales. The petition
presents substantial information indicating that vessel strikes may not
be affecting the continued existence of humpback whales in the North
Pacific.
Entanglement in fishing gear and other marine debris is a
documented source of injury and mortality to cetaceans. Since 2002, the
Hawaiian Islands Large Whale Entanglement Response Network has
confirmed 112 reports of entangled large whales as true entanglement of
large whales, with all but three reports involving humpback whales
(Lyman, 2012). The petitioner notes that these reports have increased
over time, corresponding to the increasing wintering population in
Hawaiian waters. Though not noted in the petition, NMFS' Alaska Region
received over 170 reports of humpback whale entanglement (both
confirmed and unconfirmed) in Alaska from 1990-2011. According to the
petitioner, the average number of humpback whales resulting in M&SI
from commercial fisheries is 3.2 animals for the California/Oregon/
Washington stock (Caretta et al., 2011) and 3.8 animals for the Central
Pacific stock (Allen and Angliss, 2012), and these interaction rates
are below the stocks' calculated PBRs, suggesting that fishery
interactions do not affect the continued existence of these stocks.
Again, limited information is available on entanglement and fishery
interactions in the western Pacific (Allen and Angliss, 2012). We find
that the petition presents substantial information indicating that
fishery interactions may not be affecting the continued existence of
these stocks.
Acoustic disturbance is another threat to cetaceans, especially
anthropogenic low-frequency sound produced by shipping, oil and gas
development, defense related activities, and research activities. The
petitioner asserts that available evidence suggests that anthropogenic
noise does not threaten the continued existence of North Pacific
humpback whales, pointing out that only one record is known in which
two humpback whales were stranded with extensive damage to the temporal
bones from a large-scale explosion (Fleming and Jackson, 2011). Impact
of low-frequency noise on variation of humpback whale songs appears to
be minimal, though studies have shown that song length increased in
response to low-frequency broadcasts (Miller et al., 2000; Fristrup et
al., 2003).
The petitioner concludes that the steady increase in the humpback
whale population throughout the North Pacific indicates that these
threats have not cumulatively curtailed the recovery and growth of the
humpback whale population, and therefore, are not affecting its
continued existence. We find that the petition presents substantial
information indicating that these factors may not be contributing to
the extinction risk of this population.
Petition Finding
Based on the above information and criteria specified in 50 CFR
424.14(b)(2), we find that the petitioners present substantial
scientific and commercial information indicating that identifying the
North Pacific population of humpback whale as a DPS and delisting this
DPS may be warranted. Under section 4(b)(3)(A) of the ESA, an
affirmative 90-day finding requires that we promptly commence a status
review of the petitioned species (16 U.S.C. 1533 (b)(3)(A)).
Information Solicited
To ensure that the status review is based on the best available
scientific and commercial data, we are soliciting information on the
humpback whale, with a focus on the North Pacific population, in the
following areas: (1) Historical and current population status and
trends; (2) historical and current
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distribution; (3) migratory movements and behavior; (4) genetic
population structure, as compared to other populations; (5) current or
planned activities that may adversely impact humpback whales; and (6)
ongoing efforts to conserve humpback whales. We request that all
information and data be accompanied by supporting documentation such as
(1) maps, bibliographic references, or reprints of pertinent
publications; and (2) the submitter's name, address, and any
association, institution, or business that the person represents.
References Cited
A complete list of references is available upon request from the
NMFS Office of Protected Resources (see ADDRESSES).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: August 22, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2013-21066 Filed 8-28-13; 8:45 am]
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