Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 70169 

and NPRM). More than five years have 

passed since the Commission sought 

comment on several important matters 

relating to the quality and 

implementation of closed captioning of 

video programming, and a variety of 

changes in the closed captioning 

landscape warrant a refresh of the 

record created in response to that 

proceeding. For example, the 

benchmarks for 100% captioning of 

nonexempt new English and Spanish 

language programming have passed, the 

transition to digital television occurred 

on June 12, 2009, and advances in 

captioning technology and availability 

have occurred. The Bureau also believes 

that a refreshed record will help it to 

better understand the issues that were 

raised for comment in the 2008 Closed 

Captioning Declaratory Ruling, Order 

and NPRM. Because, in the 2008 Closed 

Captioning Declaratory Ruling, Order 

and NPRM, the Commission adopted 

requirements for video program 

distributors to make contact information 

available to consumers, and 

requirements concerning the process for 

filing and handling closed captioning 

complaints, the Commission does not 

seek to refresh the record with regard to 

those matters. 

Federal Communications Commission. 

Karen Peltz Strauss, 

Deputy Chief, Consumer and Governmental 

Affairs Bureau. 

[FR Doc. 2010–28718 Filed 11–16–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 0912161432–0453–02] 

RIN 0648–XT37 

Endangered and Threatened Wildlife 

and Plants: Proposed Endangered 

Status for the Hawaiian Insular False 

Killer Whale Distinct Population 

Segment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, the NMFS, have 

completed a comprehensive status 

review of the Hawaiian insular false 

killer whale (Pseudorca crassidens) 

under the Endangered Species Act 

(ESA) in response to a petition 

submitted by the Natural Resources 

Defense Council (NRDC) to list the 

Hawaiian insular false killer whale as an 

endangered species. After reviewing the 

best scientific and commercial 

information available, we have 

determined that the Hawaiian insular 

false killer whale is a distinct 

population segment (DPS) that qualifies 

as a species under the ESA. Moreover, 

after evaluating threats facing the 

species, and considering efforts being 

made to protect the Hawaiian insular 

DPS, we have determined that the DPS 

is declining and is in danger of 

extinction throughout its range. We 

propose to list it as endangered under 

the ESA. Although we are not proposing 

to designate critical habitat at this time, 

we are soliciting information to inform 

the development of the final listing rule 

and designation of critical habitat in the 

event the DPS is listed. 

DATES: Comments on this proposal must 

be received by February 15, 2011. A 

public hearing will be held on Oahu, 

Hawaii, on Thursday, January 20, 2011, 

6:30 p.m. to 9 p.m., at the McCoy 

Pavilion at Ala Moana Park, 1201 Ala 

Moana Blvd., Honolulu, HI 96814. 

NMFS will consider requests for 

additional public hearings if any person 

so requests by January 31, 2011. Notice 

of the location and time of any such 

additional hearing will be published in 

the Federal Register not less than 15 

days before the hearing is held. 

ADDRESSES: You may submit comments 

identified by 0648–XT37 by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or hand-delivery: Submit 

written comments to Regulatory Branch 

Chief, Protected Resources Division, 

National Marine Fisheries Service, 

Pacific Islands Regional Office, 1601 

Kapiolani Blvd., Suite 1110, Honolulu, 

HI 96814, Attn: Hawaiian insular false 

killer whale proposed listing. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

Comments will be posted for public 

viewing after the comment period has 

closed. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. We 

will accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. The 

petition, status review report, and other 

reference materials regarding this 

determination can be obtained via the 

NMFS Pacific Islands Regional Office 

Web site: http://www.fpir.noaa.gov/ 

PRD/prd_false_killer_whale.html or by 

submitting a request to the Regulatory 

Branch Chief, Protected Resources 

Division, National Marine Fisheries 

Service, Pacific Islands Regional Office, 

1601 Kapiolani Blvd., Suite 1110, 

Honolulu, HI 96814, Attn: Hawaiian 

insular false killer whale proposed 

listing. 

FOR FURTHER INFORMATION CONTACT: 

Krista Graham, NMFS, Pacific Islands 

Regional Office, 808–944–2238; Lance 

Smith, NMFS, Pacific Islands Regional 

Office, 808–944–2258; or Dwayne 

Meadows, NMFS, Office of Protected 

Resources, 301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 1, 2009, we received a 

petition from the NRDC requesting that 

we list the insular population of 

Hawaiian false killer whales as an 

endangered species under the ESA and 

designate critical habitat concurrent 

with listing. According to the draft 2010 

Stock Assessment Report (SAR) 

(Carretta et al., 2010) (available at 

http://www.nmfs.noaa.gov/pr/pdfs/ 

sars/) that we have completed as 

required by the Marine Mammal 

Protection Act (MMPA), false killer 

whales within the United States (U.S.) 

Exclusive Economic Zone (EEZ) around 

the Hawaiian Islands are divided into a 

Hawaii pelagic stock and a Hawaii 

insular stock. The petition considers the 

insular population of Hawaiian false 

killer whales and the Hawaii insular 

stock of false killer whales to be 

synonymous. On January 5, 2010, we 

determined that the petitioned action 

presented substantial scientific and 

commercial information indicating that 

the petitioned action may be warranted, 

and we requested information to assist 

with a comprehensive status review of 

the species to determine if the Hawaiian 

insular false killer whale warranted 

listing under the Endangered Species 

Act of 1973 (ESA) (75 FR 316). 

ESA Statutory Provisions 

The ESA defines ‘‘species’’ to include 

subspecies or a DPS of any vertebrate 

species which interbreeds when mature 

(16 U.S.C. 1532(16)). The U.S. Fish and 

Wildlife Service (FWS) and NMFS have 

adopted a joint policy describing what 


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constitutes a DPS of a taxonomic species 

(61 FR 4722). The joint DPS policy 

identifies two criteria for making DPS 

determinations: (1) The population must 

be discrete in relation to the remainder 

of the taxon (species or subspecies) to 

which it belongs; and (2) the population 

must be significant to the remainder of 

the taxon to which it belongs. 

A population segment of a vertebrate 

species may be considered discrete if it 

satisfies either one of the following 

conditions: (1) ‘‘It is markedly separated 

from other populations of the same 

taxon as a consequence of physical, 

physiological, ecological, or behavioral 

factors. Quantitative measures of genetic 

or morphological discontinuity may 

provide evidence of this separation’’; or 

(2) ‘‘it is delimited by international 

governmental boundaries within which 

differences in control of exploitation, 

management of habitat, conservation 

status, or regulatory mechanisms exist 

that are significant in light of section 

4(a)(1)(D)’’ of the ESA. 

If a population segment is found to be 

discrete under one or both of the above 

conditions, its biological and ecological 

significance to the taxon to which it 

belongs is evaluated. Considerations 

under the significance criterion may 

include, but are not limited to: (1) 

‘‘Persistence of the discrete population 

segment in an ecological setting unusual 

or unique for the taxon; (2) evidence 

that the loss of the discrete population 

segment would result in a significant 

gap in the range of a taxon; (3) evidence 

that the discrete population segment 

represents the only surviving natural 

occurrence of a taxon that may be more 

abundant elsewhere as an introduced 

population outside its historic range; 

and (4) evidence that the discrete 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics.’’ 

The ESA defines an ‘‘endangered 

species’’ as one that is in danger of 

extinction throughout all or a significant 

portion of its range, and a ‘‘threatened 

species’’ as one that is likely to become 

an endangered species in the foreseeable 

future throughout all or a significant 

portion of its range (16 U.S.C. 1532 (6) 

and (20)). The statute requires us to 

determine whether any species is 

endangered or threatened because of 

any of the following factors: (1) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overexploitation for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) the inadequacy of existing 

regulatory mechanisms; or (5) other 

natural or manmade factors affecting its 

continued existence (16 U.S.C. 1533). 

We are to make this determination 

based solely on the best available 

scientific and commercial information 

after conducting a review of the status 

of the species and taking into account 

any efforts being made by states or 

foreign governments to protect the 

species. 

When evaluating conservation efforts 

not yet implemented or implemented 

for only a short period of time to 

determine whether they are likely to 

negate the need to list the species, we 

use the criteria outlined in the joint 

NMFS and FWS Policy for Evaluating 

Conservation Efforts When Making 

Listing Decisions (PECE policy; 68 FR 

15100). 

Status Review and Approach of the 

BRT 

To conduct the comprehensive status 

review of the Hawaiian insular 

population of the false killer whale, we 

formed a Biological Review Team (BRT) 

comprised of eight federal scientists 

from our Northwest, Southwest, Alaska, 

and Pacific Islands Fisheries Science 

Centers. We asked the BRT to review the 

best available scientific and commercial 

information to determine whether the 

Hawaiian insular false killer whale 

warrants delineation into a DPS, using 

the criteria in the joint DPS policy. We 

asked the BRT to then assess the level 

of extinction risk facing the species at 

the DPS level, describing its confidence 

that the DPS is at high risk, medium 

risk, or low risk of extinction. The BRT 

defined the level of risk based on 

thresholds that have been used to assess 

other marine mammal species, and 

consistent with the criteria used by the 

International Union for the 

Conservation of Nature (IUCN) Red List 

of Threatened Species (IUCN, 2001). In 

evaluating the extinction risk, we asked 

the BRT to describe the threats facing 

the species, according to the statutory 

factors listed under section 4(a)(1) of the 

ESA, and qualitatively assess the 

severity, geographic scope, and level of 

certainty of each threat (Oleson et al., 

2010). 

In compiling the best available 

information, making a DPS 

determination, and evaluating the status 

of the DPS, the BRT considered a variety 

of scientific information from the 

literature, unpublished documents, and 

direct communications with researchers 

working on false killer whales, as well 

as technical information submitted to 

NMFS. The BRT formally reviewed all 

information not previously peerreviewed, and only that information 

found to meet the standard of best 

available science was considered 

further. Analyses conducted by 

individual BRT members were subjected 

to independent peer review, as required 

by the Office of Management and 

Budget Peer Review and Bulletin and 

under the 1994 joint NMFS/FWS peer 

review policy for ESA activities (59 FR 

34270), prior to incorporation into the 

status review report. 

The BRT acknowledged that 

considerable levels of uncertainty are 

present for all aspects of the Hawaiian 

insular false killer whale’s biology, 

abundance, trends in abundance, and 

threats. Such uncertainties are expected 

for an uncommon species that is 

primarily found in the open ocean 

where research is expensive and 

knowledge is consequently poor. The 

BRT decided to treat the uncertainty 

explicitly by defining where it exists 

and using a point system to weigh 

various plausible scenarios, taking into 

account all of the best available data on 

false killer whales, but also considering 

information on other similar toothed 

whales. The BRT’s objectives in taking 

this approach were to make the process 

of arriving at conclusions detailed in the 

status review report as transparent as 

possible and to provide assurance that 

the BRT was basing its conclusions on 

a common understanding of the 

evidence. Details of this approach can 

be found in Appendix A of the status 

review report. 

The report of the BRT deliberations 

(Oleson et al., 2010) (hereafter ‘‘status 

review report’’) thoroughly describes 

Hawaiian false killer whale biology, 

ecology, and habitat, provides input on 

the DPS determination, and assesses 

past, present, and future potential risk 

factors, and overall extinction risk. The 

key background information and 

findings of the status review report are 

summarized below. 

Biology and Life History of False Killer 

Whales 

The following section presents 

biology and life history information 

gathered from throughout the range of 

false killer whales. A later section 

focuses on information specific to the 

Hawaiian insular false killer whale. 

Description 

The false killer whale, Pseudorca 

crassidens (Owen, 1846) is a member of 

the family Delphinidae, and no 

subspecies have been identified. The 

species is a slender, large delphinid, 

with maximum reported sizes of 610 cm 

for males (Leatherwood and Reeves, 

1983) and 506 cm for females (Perrin 

and Reilly, 1984). Length at birth has 

been reported to range from 160–190 

cm, and length at sexual maturity is 334 

through 427 cm in females and 396–457 


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cm in males (Stacey et al., 1994; Odell 

and McClune, 1999). Estimated age at 

sexual maturity is about 8 to 11 years for 

females, while males may mature 8 to 

10 years later (Kasuya, 1986). The 

maximum reported age has been 

estimated as 63 years for females and 58 

years for males (Kasuya, 1986), with 

females becoming reproductively 

senescent at about age 44 (Ferreira, 

2008). Both sexes grow 40 to 50 percent 

in body length during their first year of 

life, but males subsequently grow faster 

than females. Growth ceases between 20 

and 30 years of age, and there is 

evidence of geographic variation in final 

asymptotic body size. Off the coast of 

Japan, asymptotic length is 46 cm 

(females) and 56 cm (males) longer than 

off the coast of South Africa (Ferreira, 

2008). Large individuals may weigh up 

to 1,400 kg. Coloration of the entire 

body is black or dark gray, although 

lighter areas may occur ventrally 

between the flippers or on the sides of 

the head. A prominent, falcate dorsal fin 

is located at about the midpoint of the 

back, and the tip can be pointed or 

rounded. The head lacks a distinct beak, 

and the melon tapers gradually from the 

area of the blowhole to a rounded tip. 

In males, the melon extends slightly 

further forward than in females. The 

pectoral fins have a unique shape 

among the cetaceans, with a distinct 

central hump creating an S-shaped 

leading edge. 

Global Distribution and Density 

False killer whales are found in all 

tropical and warm-temperate oceans, 

generally in deep offshore waters, but 

also in some shallower semi-enclosed 

seas and gulfs (e.g., Sea of Japan, Yellow 

Sea, Persian Gulf), and near oceanic 

islands (e.g., Hawaii, Johnston Atoll, 

Galapagos, Guadeloupe, Martinique) 

(Leatherwood et al., 1989). Sightings 

have also been reported as ‘‘common’’ in 

Brazilian shelf waters (IWC, 2007) 

where animals could be seen from shore 

from Rio de Janeiro feeding in an 

upwelling zone that concentrates prey. 

There are occasional records in both the 

northern and southern hemispheres of 

animals at latitudes as high as about 50 

degrees (Stacey and Baird, 1991; Stacey 

et al., 1994). In the western Pacific off 

the coast of Japan, false killer whales 

appear to move north-south seasonally, 

presumably related to prey distribution 

(Kasuya, 1971), but seasonal movements 

have not been documented elsewhere. 

Densities in the central and eastern 

Pacific range from 0.02 to 0.38 animals 

per 100 km2 (Wade and Gerrodette, 

1993; Mobley et al., 2000; Ferguson and 

Barlow, 2003; Carretta et al., 2007), with 

the lowest densities reported for waters 

north of about 15 degrees north off Baja 

California, Mexico, and within the U.S. 

EEZ around Hawaii, and highest 

densities reported in waters 

surrounding Palmyra Atoll. Unlike other 

species that can be found both along 

continental margins and in offshore 

pelagic waters (e.g., bottlenose dolphins 

(Tursiops truncatus)), false killer whale 

densities generally do not appear to 

increase closer to coastlines. 

Although false killer whales are found 

globally, genetic, morphometric, and life 

history differences indicate there are 

distinct regional populations (Kitchener 

et al., 1990; Mobley et al., 2000; Chivers 

et al., 2007; Ferreira, 2008). Within 

waters of the central Pacific, four Pacific 

Islands Region management stocks of 

false killer whales are currently 

recognized for management under the 

U.S. MMPA: The Hawaii insular stock, 

the Hawaii pelagic stock, the Palmyra 

Atoll stock, and the American Samoa 

stock (Carretta et al., 2010). 

Life History 

False killer whales are long-lived 

social odontocetes. Much of what is 

known about their life history comes 

either from examination of dead animals 

originating from drive fisheries in Japan 

(Kasuya and Marsh, 1984; Kasuya, 1986) 

or strandings (Purves and Pilleri, 1978; 

Ferreira, 2008). The social system has 

been described as matrilineal (Ferreira, 

2008). However, this is not consistent 

with two known characteristics of false 

killer whales: Males leave their natal 

group when they begin to become 

sexually mature; and research showing 

females within a single group have 

different haplotypes, indicating that 

even among females, groups are 

composed of more than near-relatives 

(Chivers et al., 2010). Ferreira (2008) 

suggested the mating system may be 

polygynous based on the large testes 

size of males, but actual understanding 

of the mating system remains poor. 

The only reported data on birth 

interval, 6.9 years between calves, is 

from Japan (Kasuya, 1986). However, 

annual pregnancy rates were reported 

for Japan as 11.4 percent and 2.2 percent 

for South Africa (Ferreira, 2008). A 

rough interbirth interval can be 

calculated by taking the inverse of the 

annual pregnancy rate, which yields 

intervals of 8.8 and 45 years for Japan 

and South Africa, respectively. A single 

stranding group where 1 out of 37 adult 

females was pregnant was the source of 

the South African data, which may not 

be a representative sample and could be 

insufficient to estimate pregnancy rates 

in that population. 

Comparisons of the life history 

parameters inferred from the Japanese 

drive fishery samples and the South 

African stranding sample indicated that 

the whales in Japan attained a larger 

asymptotic body size and grew faster. 

Also, a suite of characteristics of the 

whales in Japan indicated a higher 

reproductive rate: The ratio of 

reproductive to post-reproductive 

females was higher and the pregnancy 

rate was higher than in South Africa. 

Possible reasons given by Ferreira 

(2008) for the apparently higher 

reproductive rate in Japan are: The 

Japan whales are exhibiting a densitydependent response to population 

reduction as a result of exploitation; the 

colder waters near Japan are more 

productive; or differences in food 

quality. The estimated reproductive 

rates in both Japan and South Africa are 

low compared to those of other 

delphinids and especially to the two 

species with the most similar life 

history: Short-finned pilot whales 

(Globicephala macrorhynchus), and 

Southern Resident killer whales 

(Orcinus orca) (Olesiuk et al., 1990). 

Little is known about the breeding 

behavior of false killer whales in the 

wild, but some information is available 

from false killer whales held in 

oceanaria (Brown et al., 1966). Gestation 

has been estimated to last 11 to 16 

months, (Kasuya, 1986; Odell and 

McClune, 1999). Females with calves 

lactate for 18 to 24 months (Perrin and 

Reilly, 1984). In captive settings, false 

killer whales have mated with other 

delphinids, including short-finned pilot 

whales and bottlenose dolphins. 

Bottlenose dolphins in captivity have 

produced viable offspring with false 

killer whales (Odell and McClune, 

1999). 

Reproductive senescence is quite rare 

in cetaceans but has been documented 

in false killer whales and other social 

odontocetes. The two primary reasons 

given for reproductive senescence are 

increasing survival of offspring as a 

result of care given by multiple females 

of multiple generations 

(grandmothering), and transmission of 

learning across generations allowing 

survival in lean periods by remembering 

alternative feeding areas or strategies 

(McAuliffe and Whitehead, 2005; 

Ferreira, 2008). 

Wade and Reeves (2010) argue that 

odontocetes have delayed recovery as 

compared to mysticetes when numbers 

are reduced because of the combination 

of their life history, which results in 

exceptionally low maximum population 

growth rates, and the potential for social 

disruption. Particularly if older females 

are lost, it may take decades to rebuild 

the knowledge required to achieve 

maximum population growth rates. 


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Wade and Reeves (2010) give numerous 

examples, both from cetaceans (beluga 

whales (Delphinapterus leucas), killer 

whales, and sperm whales (Physeter 

macrocephalus) are particularly 

pertinent) and elephants, which are 

similarly long-lived social animals with 

reproductive senescence. 

Feeding Ecology 

False killer whales are top predators, 

eating primarily fish and squid, but also 

occasionally taking marine mammals 

(see references in Oleson et al., 2010). 

These conclusions are based on 

relatively limited data from various 

parts of the species’ range.The large, 

widely spread groups in which false 

killer whales typically occur (Baird et 

al., 2008a; Baird et al., 2010) and their 

patchily distributed prey suggest that 

this species forages cooperatively. 

Further evidence for the social nature of 

false killer whale foraging is the 

observation of prey sharing among 

individuals in the group (Connor and 

Norris, 1982; Baird et al., 2008a). False 

killer whales feed both during the day 

and at night (Evans and Awbrey, 1986; 

Baird et al., 2008a). 

Diving Behavior 

Limited information is available on 

the diving behavior of false killer 

whales. Maximum dive depth was 

estimated at 500 m (Cummings and 

Fish, 1971). Time depth recorders have 

been deployed on four false killer 

whales (R. Baird, pers. comm., Cascadia 

Research Collective) totaling 

approximately 44 hours. The deepest 

dive recorded during a 22-hour 

deployment was estimated to have been 

as deep as 700 m (estimate based on 

duration past the recorder’s 234 m limit 

and ascent and descent rates). However, 

only 7 dives were to depths greater than 

150 m, all of them accomplished in the 

daytime. Nighttime dives were all 

shallow (30–40 m maximum), but 

relatively lengthy (approximately 6–7 

minutes). 

Indirect evidence of dive depths by 

false killer whales can be inferred from 

prey. Mahimahi has been noted as a 

prominent prey item (Baird, 2009). 

Based on the catch rates of longlines 

instrumented with depth sensors and 

capture timers (Boggs, 1992) in the 

daytime, mahimahi are caught closer to 

the surface than other longline-caught 

fish, primarily in the upper 100 m. 

Other prey species, such as bigeye tuna, 

typically occur much deeper, from the 

surface down to at least 400 m (Boggs, 

1992). The deepest dives by the 

instrumented false killer whales 

approach the daytime swimming depth 

limit of swordfish (Xiphias gladius), a 

prey item, near 700 m (Carey and 

Robinson, 1981). 

Social Behavior 

There is quite a bit of variance in 

estimates of group size of false killer 

whales. At least some of the variability 

stems from estimation methods and 

time spent making the group size 

estimate. Most group sizes estimated 

from boats or planes vary from 1 to over 

50 animals with an average from 20 to 

30, and group size estimates increase 

with encounter duration up to 2 hours 

(Baird et al., 2008a). Group size tends to 

increase with encounter duration 

because the species often occurs in 

small subgroups that are spread over 

tens of square miles. It is possible that 

the groups seen on typical boat or plane 

surveys are only part of a larger group 

spread over many miles (see e.g., Baird 

et al., 2010) that are in acoustic contact 

with one another. These widespread 

aggregations of small groups can total 

hundreds of individuals (Wade and 

Gerrodette, 1993; Carretta et al., 2007; 

Baird, 2009; Reeves et al., 2009). Mass 

strandings of large groups of false killer 

whales (range 50–835; mean = 180) have 

been documented in many regions, 

including New Zealand, Australia, 

South Africa, the eastern and western 

North Atlantic, and Argentina (Ross, 

1984). Groups of 2–201 individuals 

(mean = 99) have also been driven 

ashore in Japanese drive fisheries 

(Kasuya, 1986). The social organization 

of smaller groups has been studied most 

extensively near the main Hawaiian 

Islands (Baird et al., 2008a), where 

individuals are known to form strong 

long-term bonds. False killer whales are 

also known to associate with other 

cetacean species, especially bottlenose 

dolphins (Leatherwood et al., 1988). 

Interestingly, records also show false 

killer whales attacking other cetaceans, 

including sperm whales and bottlenose 

dolphins (Palacios and Mate, 1996; 

Acevedo-Gutierrez et al., 1997). 

Biology and Life History of Hawaiian 

Insular False Killer Whales 

Current Distribution 

The boundaries of Hawaiian insular 

false killer whale distribution have been 

assessed using ship and aerial survey 

sightings and location data from 

satellite-linked telemetry tags. Satellite 

telemetry location data from seven 

groups of individuals tagged off the 

islands of Hawaii and Oahu indicate 

that the whales move widely and 

quickly among the main Hawaiian 

Islands and use waters up to at least 112 

km offshore (Baird et al., 2010; Forney 

et al., 2010). Regular movement 

throughout the main Hawaiian Islands 

was also documented by re-sightings of 

photographically-identified individuals 

over several years (Baird et al., 2005; 

Baird, 2009; Baird et al., 2010). 

Individuals use both windward and 

leeward waters, moving from the 

windward to leeward side and back 

within a day (Baird, 2009; Baird et al., 

2010; Forney et al., 2010). Some 

individual false killer whales tagged off 

the Island of Hawaii have remained 

around that island for extended periods 

(days to weeks), but individuals from all 

tagged groups eventually ranged widely 

throughout the main Hawaiian Islands, 

including movements to the west of 

Kauai and Niihau (Baird, 2009; Forney 

et al., 2010). Based on locations 

obtained from 20 satellite-tagged insular 

false killer whales, the minimum 

convex polygon range for the insular 

population was estimated to encompass 

77,600 km2 (M.B. Hanson, unpublished 

data). 

The greatest offshore movements 

occurred on the leeward sides of the 

islands, although on average, similar 

water depths and habitat were utilized 

on both the windward and leeward 

sides of all islands (Baird et al., 2010). 

Individuals utilize habitat overlaying a 

broad range of water depths, varying 

from shallow (<50 m) to very deep 

(>4,000 m) (Baird et al., 2010). Tagged 

insular false killer whales have often 

demonstrated short- to medium-term 

residence in individual island areas 

before ranging widely among islands 

and adopting another short-term 

residency pattern. It is likely that 

movement and residency patterns of the 

whales vary over time depending on the 

density and movement patterns of their 

prey species (Baird, 2009). 

A genetically distinct population of 

pelagic false killer whales occurs off 

Hawaii (Chivers et al., 2007). Hawaiian 

insular false killer whales share a 

portion of their range with the 

genetically distinct pelagic population 

(Forney et al., 2010). Satellite telemetry 

locations from a single tagged 

individual from the pelagic population, 

as well as shipboard and small boat 

survey sightings, suggest that the ranges 

of the two populations overlap in the 

area between 42 km and 112 km from 

shore (Baird et al., 2010; Forney et al., 

2010). Based on this evidence, it is clear 

that the region from about 40 km to at 

least 112 km from the main Hawaiian 

Islands is an overlap zone, in which 

both insular and pelagic false killer 

whales can be found. However, a small 

sample size of satellite-tracked 

individuals creates some uncertainty in 

these boundaries. In particular, the 

offshore boundary of the insular stock is 


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likely to be farther than 112 km because 

their documented offshore extent has 

increased as sample sizes of satellitetracked individuals have increased. It is 

likely that additional deployments in 

the future will continue to result in 

greater maximum documented distances 

for insular false killer whales. Thus, an 

additional geographic ‘‘buffer’’ beyond 

the present maximum distance of 112 

km has been recognized out to 140 km. 

Moreover, 140 km is approximately 75 

nmi which follows the original 

boundary recommendation of Chivers et 

al. (2008). Therefore, the draft 2010 SAR 

for false killer whales recognizes an 

overlap zone between insular and 

pelagic false killer whales between 40 

km and 140 km from the main Hawaiian 

Islands based on sighting, telemetry, 

and genetic data (based on justification 

in Forney et al., 2010; Carretta et al., 

2010). We recognize that boundary for 

this status review as well. 

Life History 

There is no information available to 

assess whether the life history of 

Hawaiian insular false killer whales 

differs markedly from other false killer 

whale populations. However, there is 

also no evidence to show they are 

similar. As discussed earlier, false killer 

whales in Japan were larger and had a 

higher reproductive output than those 

in South Africa, and these differences 

were attributed to one or more of the 

following: colder more productive 

waters, response to exploitation, and 

different food in the two regions 

(Ferreira, 2008). It remains uncertain 

whether Hawaiian insular false killer 

whales are more like those from Japan 

or those from South Africa. 

Social Structure 

Molecular genetic results support the 

separation of Hawaiian insular false 

killer whales from the more broadly 

distributed Hawaiian pelagic false killer 

whales (Chivers et al., 2007; 2010). 

Matches from photo-identification of 

individuals in groups of insular false 

killer whales also suggests functional 

isolation of the insular population from 

the overlapping pelagic population of 

false killer whales (Baird et al., 2008a). 

Based on 553 identifications available as 

of July 2009, with the exception of 

observations of four small groups (two 

observed near Kauai and two off the 

Island of Hawaii), all false killer whales 

observed within 40 km of the main 

Hawaiian Islands link to each other 

through a single large social network 

that makes up the insular population. A 

large group of 19 identified individuals 

of the pelagic population (or presumed 

to be) seen 42 km from shore and 

identifications from a number of other 

sightings of smaller groups do not link 

into the social network (Baird, 2009). 

The social cohesion of insular false 

killer whales is likely important to 

maintaining high fecundity and survival 

as it is in other highly social animals. 

Although some aspects of the behavior 

and ‘‘culture’’ of Hawaiian insular false 

killer whales have been investigated or 

discussed, the mechanisms by which 

they might influence population growth 

rates are not well understood. The 

situation of this population could be 

analogous to those of other populations 

of large mammals in which females live 

well beyond their reproductive life 

spans (e.g., elephants, higher primates, 

and some other toothed cetaceans such 

as pilot whales) (McComb et al., 2001; 

Lahdenpera et al., 2004). The loss of 

only a few key individuals—such as the 

older, post-reproductive females—could 

result in a significant loss of inclusive 

fitness conveyed by ‘‘grandmothering’’ 

behavior (i.e., assistance in care of the 

young of other females in the pod). In 

addition, cultural knowledge (e.g., how 

to cope with environmental changes 

occurring on decadal scales) could be 

lost, leading to reduced survival or 

fecundity of some or all age classes. 

Wade and Reeves (2010) document the 

special vulnerability of social 

odontocetes giving examples of killer 

whales, belugas, sperm whales, and 

dolphins in the eastern tropical Pacific. 

Historical Population Size 

Historical population size is 

unknown. BRT members used density 

estimates from other areas together with 

the range inferred from telemetry data 

(see above) to suggest plausible ranges 

for historical abundance. Using the 

estimated density of false killer whales 

around the Palmyra Atoll EEZ, 0.38 

animals/100 km2, where the highest 

density of this species has been reported 

(Barlow and Rankin, 2007), and 

extrapolating that density out to the 

202,000 km2 area within 140 km of the 

main Hawaiian Islands (proposed as a 

stock boundary for Hawaiian insular 

false killer whales in the draft 2010 

SAR), a point-estimate, or a plausible 

historical abundance, for the insular 

population is around 769. Alternatively, 

using one standard deviation above the 

point-estimate of the density around 

Palmyra Atoll to account for uncertainty 

in that density estimate, the upper limit 

of the abundance of Hawaiian insular 

false killer whales could have reached 

1,392 animals. The BRT placed the 

lower limit of plausible population size 

in 1989 at 470 based on the estimated 

number of animals observed in the 1989 

aerial surveys (see above). 

There are several important caveats. 

Even though Palmyra has a density that 

is high relative to other areas, it is 

unlikely that this represented a pristine 

population during the 2005 survey on 

which the estimate is based. Given the 

depredation tendencies of false killer 

whales, known long-lining in the 

Palmyra area, and the fact that false 

killer whales are known to become 

seriously injured or die as a result of 

interactions with longlines, the 

possibility that current densities are 

lower than historical densities cannot be 

discounted. Although Palmyra is 

situated in more productive waters than 

the Hawaiian Islands, we do not 

understand enough about the feeding 

ecology, behavior, and social system(s) 

of false killer whales to know how or 

whether productivity might be related to 

animal density for false killer whales. 

This caveat is true for all other areas 

where population density estimates 

exist for false killer whales. Therefore, 

we used and view data from Palmyra as 

a conservative estimate of pristine 

density. 

Current Abundance 

The draft 2010 SAR for Hawaiian 

insular false killer whales (Carretta et 

al., 2010) gives the best estimate of 

current population size as 123 

individuals (coefficient of variation, or 

CV = 0.72), citing Baird et al. (2005). 

Recent reanalysis of photographic data 

has yielded two new estimates of 

population size for the 2006–2009 

period. Two estimates are presented 

because two groups photographed near 

Kauai have not yet been observed to 

associate into the social network of false 

killer whales seen at the other islands. 

These animals may come from the 

pelagic population, may come from 

another undocumented population in 

the Northwestern Hawaiian Islands, or 

may represent a portion of the insular 

population that has not been previously 

documented photographically. The 

current best estimates of population size 

for Hawaiian insular false killer whales 

are 151 individuals (CV = 0.20) without 

the animals photographed at Kauai, or 

170 individuals (CV = 0.21) with them. 

As a comparison, the Hawaiian pelagic 

population is estimated to be 484 

individuals (CV = 0.93) within the U.S. 

EEZ surrounding Hawaii (Barlow and 

Rankin, 2007). 

Although the absolute abundance of 

Hawaiian insular false killer whales is 

small, the core-area (within 40 km) 

population density (0.12 animals/100 

km2) is among the highest reported for 

this species. The high density of the 

Hawaiian insular population suggests a 

unique habitat capable of supporting a 


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larger population density than nearby 

oligotrophic waters. 

Trends in Abundance 

Aerial survey sightings since 1989 

suggest that the Hawaiian insular false 

killer whale population has declined 

over the last 2 decades. A survey was 

conducted in June and July 1989 on the 

leeward sides of Hawaii, Lanai, and 

Oahu to determine the minimum 

population size of false killer whales in 

Hawaiian waters. False killer whales 

were observed on 14 occasions with 3 

large groups (group sizes of 470, 460, 

and 380) reported close to shore off the 

Island of Hawaii on 3 different days 

(Reeves et al., 2009). As described in the 

Current Abundance section, the current 

best estimates of population size for 

Hawaiian insular false killer whales are 

151 individuals without the animals 

photographed at Kauai, or 170 with 

them. Therefore, the largest group seen 

in 1989 is much larger than the current 

best estimate of the size of the insular 

population. Although the animals seen 

during the 1989 surveys are assumed to 

come from the insular population based 

on their sighting location within 55 km 

of the Island of Hawaii, it is possible 

that they represent a short-term influx of 

pelagic animals to waters closer to the 

islands. Moreover, because 

photographic or genetic identification of 

individuals is often required to 

determine the population identity of 

false killer whales in Hawaiian waters, 

we cannot be absolutely certain that 

sightings from the 1989 or 1993 to 2003 

aerial surveys came from the insular 

population. Similarly, false killer whale 

bycatch or sightings by observers aboard 

fishing vessels cannot be attributed to 

the insular population when no 

identification photographs or genetic 

samples are obtained. Nevertheless, 

because of the location of the sightings 

and lack of evidence of pelagic animals 

occurring that close to the islands, it is 

most likely that this group did consist 

of insular animals. 

With respect to trends in group size, 

the average group size during the 1989 

survey (195 animals) is larger than the 

typical average group size for the insular 

population (25 animals for encounters 

longer than 2 hours) during more recent 

surveys (Baird et al., 2005). The 1989 

average group size is also larger than the 

more recent average of that observed for 

the pelagic population (12 animals) 

(Barlow and Rankin, 2007). 

Five additional systematic aerial 

surveys were conducted between 1993 

and 2003 covering both windward and 

leeward sides of all of the main 

Hawaiian Islands, including channels 

between the islands, out to a maximum 

distance of about 46 km from shore 

(Mobley et al., 2000; Mobley, 2004). A 

regression of sighting rates from these 

surveys suggests a significant decline in 

the population size (Baird, 2009). The 

large groups sizes observed in 1989, 

together with the declining encounter 

rates from 1993 through 2003 suggest 

that Hawaiian insular false killer whales 

have declined substantially in recent 

decades. 

It is possible that weather or other 

survey conditions are at least partially 

responsible for the decline in sighting 

rates from 1993 through 2003; however, 

there was no downward trend in the 

sighting rates for the four most 

commonly seen species of small 

cetaceans (spinner dolphin (Stenella 

longirostris), bottlenose dolphin, spotted 

dolphin (Stenella attenuata), and shortfinned pilot whale). These four species 

represent nearshore and pelagic habitat 

preferences and span a range of body 

sizes from smaller to larger than false 

killer whales. It can be inferred from 

this evidence that variability in sighting 

conditions during the survey period did 

not have a major effect on sighting rates 

and therefore the sighting rate for 

insular false killer whales has, in fact, 

declined. 

A number of additional lines of 

evidence, summarized in Baird (2009), 

support a recent decline in Hawaiian 

insular false killer whale population 

size. Individual researchers in Hawaii 

have noted a marked decline in 

encounter rates since the 1980s and the 

relative encounter rate of false killer 

whales during the 1989 aerial survey 

was much higher than current 

encounter rates. 

Population Structure 

Chivers et al. (2007) delineated false 

killer whales around Hawaii into two 

separate populations: Hawaiian insular 

and Hawaiian pelagic. That work has 

recently been extended with new 

samples, the addition of nuclear 

markers, and an analysis with a broader 

interpretation of the data (Chivers et al., 

2010). The new analysis examined 

mitochondrial DNA (mtDNA) using 

sequences of 947 base pairs from the dloop and nuclear DNA (nDNA) using 

eight microsatellites. These additional 

samples help confirm the delineation of 

these two populations. 

Three stratifications of the mtDNA 

data examined genetic differentiation at 

different spatial scales (Chivers et al., 

2010). The broad-scale stratification 

recognized three groups: Hawaiian 

insular, central North Pacific, and 

eastern North Pacific. In the fine-scale 

stratification, five strata were 

recognized: Hawaiian insular, Hawaiian 

pelagic, Mexico, Panama, and American 

Samoa. The finest-scale stratification 

recognized each of the main Hawaiian 

Islands as strata. 

All but one Hawaiian insular false 

killer whale had one of two closely 

related haplotypes that have not been 

found elsewhere. The presence of two 

distinct, closely related haplotypes in 

Hawaiian insular false killer whales is 

consistent with Hawaiian insular false 

killer whales having little gene flow 

from other areas. This pattern differs 

from those of Hawaiian stocks of 

bottlenose, spinner, and spotted 

dolphins that all have evidence 

suggesting multiple successful 

immigration events. The pattern of 

primarily closely related haplotypes 

shown in Hawaiian insular false killer 

whales is consistent with a strong social 

system or strong habitat specialization 

that makes survival of immigrants or 

their offspring unlikely. One single 

individual, a male, was found in among 

Hawaiian insular false killer whales 

with a different haplotype. Although 

there is no photograph of that male to 

connect it directly to Hawaiian insular 

false killer whales, it was sampled 

within a group with such strong 

connections that assignment tests could 

not exclude that it belongs to the insular 

group. Given the low power of the 

current assignment test (with few 

microsatellite markers), the possibility 

of immigration (permanent membership 

with Hawaiian insular false killer 

whales but with an origin outside the 

group) cannot be ruled out. Likewise, 

the possibility that this individual was 

a temporary visitor (i.e., not a true 

immigrant) from the pelagic population 

cannot be excluded. The rare haplotype 

is sufficiently distantly related that it 

seems most plausible that this resulted 

from a separate immigration event (i.e., 

that immigrants are accepted on rare 

occasions). 

The mtDNA data also show strong 

differentiation between Hawaiian 

insular false killer whales (n = 81) and 

both broad-scale strata (central North 

Pacific (n = 13) and eastern North 

Pacific (n = 39)) and fine-scale strata 

(Hawaiian pelagic (n = 9), Mexico (n = 

19), Panama (n = 15), and American 

Samoa (n = 6)). Genetic divergence 

between the Hawaiian insular false 

killer whales and other strata examined 

showed magnitudes of differentiation 

that were all consistent with less than 

one migrant per generation. No 

significant differences were found 

among the main Hawaiian Islands with 

sufficient data for statistical analysis 

(Hawaii, Oahu, and Maui). 

Nuclear DNA results also showed 

highly significant differentiation among 


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the broad and fine strata (Hawaiian 

insular (n = 69), central North Pacific (n 

= 13), eastern North Pacific (n = 36), 

Hawaiian pelagic (n = 9), Mexico (n = 

19), Panama (n = 12), and American 

Samoa (n = 6)). The estimates of 

divergence between the Hawaiian 

insular strata and other strata 

demonstrate that the magnitude of 

differentiation was less for nDNA than 

for mtDNA, indicating the potential for 

some male-mediated gene flow. Tests 

for differences between currently living 

males and females in level of 

differentiation were not significant for 

either mtDNA or nDNA. However, this 

test has no ability to detect differences 

in male versus female gene flow in the 

past. Chivers et al. (2010) give a number 

of hypotheses for the apparently 

different magnitude of signals between 

mtDNA and nDNA: (1) There is a low 

level of male-mediated gene flow that 

was not apparent because of insufficient 

sampling of nearby groups of false killer 

whales and/or the test for malemediated gene flow can only detect 

first-generation male migrants; (2) the 

magnitude of nDNA differentiation is 

underestimated because of the high 

mutation rate of microsatellites; or (3) 

the magnitude of differentiation is not 

inconsistent with cases where selection 

has been shown to be strong enough for 

local adaptation. 

The aforementioned uncertainties will 

best be resolved with additional 

sampling of nearby pelagic waters. 

Although the sample distribution is 

improved since the 2007 analysis, it 

remains poor in pelagic areas. The only 

full-scale cetacean survey of Hawaiian 

pelagic waters resulted in only two 

sightings of false killer whales in four 

months of effort, and the weather was 

too poor to obtain any high-quality 

identification photographs or biopsies 

(J. Barlow, pers. comm., NMFS SWFSC). 

Fisheries observers are trained to obtain 

identification photographs and biopsy 

samples; however, conditions during 

disentanglement usually result in 

photographs difficult to identify due to 

darkness, and prevent successful 

biopsy. 

The strongest data with which to 

evaluate population structure are the 

mtDNA data. Approximately half of the 

population of Hawaiian insular false 

killer whales has been sampled, and all 

but one individual has one of two 

closely related haplotypes that have not 

been found elsewhere. 

Chivers et al. (2010) used the 

analytical method of Piry et al. (1999) to 

test for evidence of a recent decline in 

abundance within the Hawaiian insular 

population. The analysis takes 

advantage of the fact that when the 

effective size of a population is reduced, 

the allelic diversity of the population is 

reduced more rapidly than its 

heterozygosity, resulting in an apparent 

excess of heterozygosity given the 

number of alleles detected. Chivers et 

al. (2010) detected statistically 

significant evidence of a recent decline 

in Hawaiian insular false killer whales 

using this method, with all eight 

microsatellite loci exhibiting 

heterozygosity excess. 

The microsatellite data were also used 

to estimate the effective population size 

of Hawaiian insular false killer whales 

as 46 (95 percent CI = 32–69). Because 

this population may have recently 

declined and the animals are long-lived, 

many of those individuals still alive 

likely were born prior to the decline. 

Thus, the estimate of effective 

population size is likely too high. 

Nevertheless, domestic animals have 

been shown to start displaying 

deleterious genetic effects (lethal or 

semi-lethal traits) when effective 

population size reaches about 50 

individuals (Franklin, 1980). While 

negative genetic effects cannot be 

predicted for a group of individuals that 

are probably naturally uncommon with 

a strong social structure that limits 

genetic diversity, the current low 

effective population size is a concern. 

DPS Determination 

We have determined that Hawaiian 

insular false killer whales are discrete 

from other false killer whales based on 

genetic discontinuity and behavioral 

factors (the uniqueness of their behavior 

related to habitat use patterns). We have 

also determined that Hawaiian insular 

false killer whales are significant to the 

taxon, based on their unique ecological 

setting, marked genetic characteristic 

differences, and cultural factors. 

Both mitochondrial DNA (mtDNA) 

and nuclear DNA (nDNA) provide 

support for genetic discontinuity. As 

explained in the Population Structure 

section of this proposed rule, genetic 

differentiation was examined at 

different spatial scales. The mtDNA data 

show strong differentiation between 

Hawaiian insular false killer whales and 

other false killer whale groups at both 

broad-scale strata (central North Pacific 

and eastern North Pacific) and fine-scale 

strata (Hawaiian pelagic, Mexico, 

Panama, and American Samoa). The 

strongest DNA data come from mtDNA. 

The Hawaiian insular false killer whales 

have approximately half of the 

population sampled, and all but one 

individual has one of the two closely 

related haplotypes that have not been 

found elsewhere. The BRT concluded 

that this pattern alone argues for a 

strong possibility of a high degree of 

separation. Nuclear DNA 

(microsatellite) data are also consistent 

with little gene flow between Hawaiian 

insular false killer whales and other 

false killer whales and support 

discreteness. Nuclear DNA results 

showed highly significant 

differentiation among the Hawaiian 

insular, North Pacific, eastern North 

Pacific, Hawaiian pelagic, Mexico, 

Panama, and American Samoa strata. 

Hawaiian insular false killer whales 

are behaviorally unique because they 

are the only population of the species 

known to have movements restricted to 

the vicinity of an oceanic island group. 

This behavioral separation is supported 

by their linkage through a tight social 

network, without any linkages to 

animals outside of the Hawaiian Islands. 

Phylogeographic analysis also indicates 

an isolated population with nearly 

exclusive haplotypes, and telemetry 

data show that all 20 satellite-linked 

telemetry tagged Hawaiian insular false 

killer whales remained within the main 

Hawaiian Islands (Baird et al., 2010; 

Baird et al., unpublished data), in 

contrast with a single tagged pelagic 

false killer whale, which ranged far from 

shore. Although it is not unusual for 

false killer whales to be observed close 

to land, long-term history of exclusive 

use of a specific mainland or island 

system has not been documented 

elsewhere. 

Hawaiian insular false killer whales 

are significant to the taxon based on 

persistence in a unique ecological 

setting, marked genetic characteristic 

differences, and cultural factors. 

Hawaiian insular false killer whales 

persist in an ecological setting unusual 

or unique from other false killer whale 

populations because they are found 

primarily in island-associated waters 

that are relatively shallow and 

productive compared to surrounding 

oligotrophic waters. The following lines 

of evidence supporting this unique 

ecological setting include: Utilization of 

prey associated with island habitat that 

may require specialized knowledge of 

locations and seasonal conditions that 

aggregate prey or make them more 

vulnerable to predation. In an insular 

habitat, such foraging grounds may 

occur more regularly or in more 

predictable locations than on the high 

seas. The contaminant levels found in 

insular animals also suggest that both 

insular false killer whales and their prey 

may be associated with the urban island 

environment. And despite their small 

population size, the density (animals 

per km2) of Hawaiian insular false killer 

whales is high relative to other false 

killer whale populations, suggesting the 


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nearshore habitat or a unique habitatuse strategy may support a higher 

density of animals, which may have 

implications for differences in social 

structure and interactions within the 

population or with the pelagic 

population. Additionally, movement 

and photographic resighting data 

suggest Hawaiian insular false killer 

whales employ a unique foraging 

strategy compared to other false killer 

whales. 

Hawaiian insular false killer whales 

differ markedly from other populations 

of the species in their genetic 

characteristics. Hawaiian insular false 

killer whales exhibit strong 

phylogeographic patterns that are 

consistent with local evolution of 

mitochondrial haplotypes. Eighty of 81 

individuals had one of two closely 

related haplotypes found nowhere else. 

These haplotypes are a sequence of a 

non-coding portion of the mtDNA and 

as such do not provide direct evidence 

for selection. The BRT found that the 

magnitude of mtDNA differentiation is 

large enough to infer that time has been 

sufficient and gene flow has been low 

enough to allow adaptation to the local 

Hawaiian habitat. The BRT noted that 

geneticists use one effective migrant per 

generation as a rule of thumb for the 

level of gene flow below which 

adaptation to local habitat is likely. 

Comparisons using mtDNA of the 

Hawaiian insular animals to those in all 

other geographic strata indicate less 

than one migrant per generation. 

Finally, culture, or knowledge passed 

through learning from one generation to 

the next, is likely to play an important 

role in the evolutionary potential of 

false killer whales. The insular 

population contributes to cultural 

diversity in the species, and this may 

provide the capacity for different 

amounts of cultural capabilities such as 

the ability of false killer whales to adapt 

to environmental change. Evidence in 

support of the significance of cultural 

diversity includes: Insular false killer 

whales may have unique knowledge of 

nearshore foraging areas and foraging 

tactics that are transmitted through 

learning. Learning is a common feature 

of other social odontocetes. False killer 

whales are highly social mammals with 

long interbirth intervals and 

reproductive senescence suggesting 

transfer of knowledge is important to 

successfully persist in this unique 

Hawaiian habitat. Learning to persist in 

this unique habitat, and knowing the 

intricacies of localized prey distribution 

and prey movements, may take many 

generations. 

Overall, the combination of genetic 

and behavioral discreteness coupled 

with ecological, genetic, and cultural 

significance led us to conclude that 

Hawaiian insular false killer whales are 

a DPS. There was some uncertainty in 

the genetic discontinuity factor of the 

discreteness conclusion based primarily 

on the lack of information on the 

adjacent population of pelagic false 

killer whales off the coast of Hawaii, 

and due to gaps in genetic sampling to 

the west of Hawaii. However, the BRT 

did not find this lack of information 

sufficient to alter the significance 

finding for Hawaiian insular false killer 

whales. We agree with the BRT’s 

conclusion that the Hawaiian insular 

population of the false killer whale is a 

DPS. 

Extinction Risk Assessment 

Evaluating Threats 

The BRT qualitatively assessed 

potential individual threats to Hawaiian 

insular false killer whales and organized 

its assessment of threats according to 

the five factors listed under ESA section 

4(a)(1). They evaluated the potential 

role that each factor may have played in 

the decline of Hawaiian insular false 

killer whales and the degree to which 

each factor is likely to limit population 

growth in the foreseeable future. Within 

the five factors, specific threats were 

individually ranked by considering the 

severity, geographic scope, the level of 

certainty that insular false killer whales 

are affected, and overall current and 

future (60 years) risk imposed by that 

threat. Consideration of future threats 

was limited to 60 years duration as this 

corresponds roughly to the life span of 

a false killer whale and represents a 

biologically relevant time horizon for 

projecting current conditions into the 

future. 

Section 4(a)(1) of the ESA and 

NMFS’s implementing regulations (50 

CFR 424) state that the agency must 

determine whether a species is 

endangered or threatened because of 

any one or a combination of the five 

factors described under the ESA 

Statutory Provisions. The BRT was not 

asked to determine whether the DPS 

was endangered or threatened; it was 

only asked to assess the risk of 

extinction and the impact of factors 

affecting the DPS. The following 

discussion briefly summarizes the BRT’s 

findings regarding threats to the 

Hawaiian insular false killer whale DPS. 

More details, including how the BRT 

voted, can be found in the status review 

report (Oleson et al., 2010). Overall, 

there were 29 threats identified to have 

either a historical, current, or future risk 

to Hawaiian insular false killer whales. 

Of these, 15 are believed to contribute 

most significantly to the current or 

future decline of Hawaiian insular false 

killer whales. The following is a 

summary of each of the 15 current and/ 

or future potential threats that could 

result in either a high risk or medium 

risk of extinction, categorized according 

to the five section 4(a)(1) factors. 

A: The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Reduced Total Prey Biomass and 

Reduced Prey Size 

The impacts of reduced total prey 

biomass and reduced prey size represent 

a medium risk for insular false killer 

whales. Although declines in prey 

biomass were more dramatic in the past 

when the insular false killer whale 

population may have been higher, the 

total prey abundance remains very low 

compared to the 1950s and 1960s as 

evidenced by catch-per-unit-effort 

(CPUE) data from Hawaii longline 

fisheries and biomass estimates from 

tuna stock assessments (Oleson et al., 

2010). Long-term declines in prey size 

from the removal of large fish have been 

recorded from the earliest records to the 

future (Oleson et al., 2010). 

Competition With Commercial Fisheries 

Competition with commercial 

fisheries is rated as a medium level of 

risk to current and future Hawaiian 

insular false killer whales. This risk 

exists because false killer whale prey 

includes many of the same species 

targeted by Hawaii’s commercial 

fisheries, especially the fisheries for 

tuna, billfish, wahoo, and mahimahi. 

Until 1980, distant-water longliners 

from Japan caught between 1,300 and 

5,000 t of tuna and billfish annually 

within the U.S. EEZ around Hawaii 

(Yong and Wetherall, 1980). Since 1980 

no foreign longline fishing has been 

legally conducted in this zone, but the 

U.S. Hawaii-based longline fisheries 

now harvest similar quantities of tuna 

and billfish in the EEZ. In terms of total 

hooks deployed by the U.S. domestic 

fisheries, the fisheries declined slightly 

in the 1960s and 1970s, and then began 

to grow again in the 1980s. Total hooks 

in the U.S. EEZ around the main 

Hawaiian Islands in the period of 1965 

and 1977 were around 1.6 to 2.9 million 

hooks per year. As the domestic 

fisheries declined in the 1960s and 

1970s, foreign fishing in the U.S. EEZ 

around the main Hawaiian Islands 

increased, and then ceased in 1980. 

Domestic longlining was revitalized in 

the 1980s based on new markets for 

fresh tuna and the introduction of new 

shallow-set swordfish fishing methods. 


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Hooks deployed inside the U.S. EEZ 

around the main Hawaiian Islands in 

the 1990s were double that estimated for 

the 1970s, and doubled again in the 

2000s. Participation in the Hawaii 

longline fisheries approximately 

doubled from 37 vessels in 1987 to 75 

in 1989 and doubled again to 156 

(vessels with permits) by the end of 

1991. As the Hawaii-based longline 

fisheries expanded during the late 1970s 

through the early 1990s, longline fishing 

effort increased in waters near the 

Hawaiian Islands and within the range 

of insular false killer whales. The 

expansion in these nearshore waters 

within the 40 km core habitat of the 

Hawaiian insular false killer whales was 

pronounced during an influx of new 

fisheries participants in the late 1980s 

(Ito, 1991) and this led to conflicts in 

the fishing areas previously dominated 

by troll and handline fishermen. The 

growing conflict between commercial 

longliners and near-shore troll and 

handliners was finally resolved in 1992 

with a prohibited area limiting 

nearshore longlining. Although the 

fraction of total Pacific longline tuna 

catches that are from the EEZ around 

the main Hawaiian Islands has declined 

from about half to about a quarter over 

the last two decades, the absolute 

quantity caught in the EEZ continued to 

increase through 2005, declining 

moderately thereafter (WPRFMC, 2010). 

The present-day Hawaiian insular 

false killer whale population requires an 

estimated 1.3 to 1.8 million kg of prey 

per year (Oleson et al., 2010). 

Competition with longline fisheries for 

potential prey within the insular false 

killer whale habitat seems to have 

represented a higher risk prior to the 

early 1990s when the longline fisheries 

were harvesting many millions of 

pounds of fish per year, and where 

reported catch locations were almost all 

in what is now the longline prohibited 

area. In the core nearshore habitat (<40 

km from shore), the troll and handline 

fisheries now harvest as much as is 

estimated to be consumed annually by 

the Hawaiian insular false killer whale 

population. 

Competition With Recreational 

Fisheries 

The potential limiting factor of 

reduced food due to catch removals by 

recreational fisheries was rated lower 

than for troll, handline, shortline, and 

kaka line fisheries in the status review 

report (Oleson et al., 2010). The BRT did 

not consider the estimates of 

recreational fishing for pelagic species 

ranging from 15–25 million lbs (7–11 

million kg) per year for 2003–2008 

provided by the Marine Recreational 

Fisheries Survey (WPRFMC, 2010). 

Although the methods used to 

extrapolate statewide totals from the 

survey are being overhauled following a 

critical review, and although it is 

difficult to know what proportion of 

surveyed fishers’ catch may be marketed 

surreptitiously, the extrapolated Hawaii 

recreational fisheries catch totals are 

many times higher than the reported 

commercial catch totals for the troll, 

handline, shortline, and kaka line 

fisheries considered by the BRT (Oleson 

et al., 2010). Reported commercial 

catches may be under-reported, and 

some may be included in the 

recreational estimates, but if the 

nominal recreational estimates from the 

survey are even somewhat 

representative, then the recreational 

sector would represent at least as much 

competition for fish as the reported 

commercial troll handline, shortline, 

and kaka line fisheries. Thus, we believe 

competition with recreational fisheries 

should be rated as a medium level of 

current and future risk to Hawaiian 

insular false killer whales. 

Natural or Anthropogenic Contaminants 

The threat of the accumulation of 

natural or anthropogenic contaminants, 

such as exposure to persistent organic 

pollutants (POPs), heavy metals (e.g., 

mercury, cadmium, lead), chemicals of 

emerging concern (industrial chemicals, 

current-use pesticides, pharmaceuticals, 

and personal care products), plastics, 

and oil, is rated as a medium level of 

current and future risk to Hawaiian 

insular false killer whales. 

Many toxic chemical compounds and 

heavy metals degrade slowly in the 

environment and thus tend to 

biomagnify in marine ecosystems, 

especially in lipid-rich tissues of toplevel predators (McFarland and Clarke, 

1989). In marine mammals, exposure to 

high levels of POPs has been associated 

with immunosuppression (Ross et al., 

1995; Beckmen et al., 2003), 

reproductive dysfunction (Helle et al., 

1976; Subramanian et al., 1987), and 

morphological changes (Zakharov and 

Yablokov, 1990; Sonne et al., 2004). 

Heavy metals have also been shown to 

accumulate in marine mammals and, in 

some cases, may cause deleterious 

biological effects, including alterations 

in steroid synthesis and liver damage 

(O’Hara and O’Shea, 2001). Many of 

these chemicals have been banned in 

the U.S. from production and use due to 

their toxic effects on wildlife and 

laboratory animals. As a result, the 

levels of these compounds in marine 

environmental samples in the U.S. have 

declined since the bans, including fish 

from Hawaii (Brasher and Wolff, 2004). 

However, some of these chemicals 

continue to be used in other regions of 

the world and can be transported to 

other areas via atmospheric transport or 

ocean currents (Fiedler, 2008; van den 

Berg, 2009). Even though these 

contaminants have been banned in the 

U.S. for more than 25 years, they 

continue to be measured in marine 

animals from Hawaii (Hunter, 1995; 

Kimbrough et al., 2008; Ylitalo et al., 

2009). 

Independently the threat of 

bioaccumulation of chemicals is a cause 

for concern, but when coupled with the 

threat of reduced prey quantities or 

qualities also affected by the 

contaminants, the risk associated with 

exposure to lipophilic POPs may 

increase. Thus, animals that are 

nutritionally challenged could be at 

higher risk as a result of increased 

mobilization of these compounds to 

other organs where damage could result. 

It is suspected that body condition can 

influence POP burdens in the blubber of 

marine mammals even though the 

dynamics of blubber POPs during 

changes in physiological conditions of 

these animals are complex and poorly 

understood (Aguilar et al., 1999). 

Marine mammals can lose weight 

during various stages of their life cycles 

due to different stresses such as disease, 

migration, or reduced prey abundance. 

The mobilization of lipids associated 

with weight loss could result in 

redistribution of POPs to other tissues, 

or to retention of these compounds in 

blubber that would result in a 

concentration increase (Aguilar et al., 

1999). Thus, animals that are 

nutritionally challenged could be at 

higher risk as a result of increased 

mobilization of these compounds to 

other organs where damage could result. 

And although levels of POPs have 

decreased since their bans in the U.S., 

they continue to be measured in biota 

from the main Hawaiian Islands, 

including Hawaiian insular false killer 

whales. Recently, summed 

polychlorinated biphenyls (PCBs) 

measured in some of these whales were 

above a marine mammal threshold value 

(17,000 ng/g, lipid) associated with 

deleterious health effects (e.g., thyroid 

dysfunction, immunosuppression) 

(Kannan et al., 2009). 

With human population growth and 

increasing commercial development, 

there has been an increased demand for 

industrial chemicals, current-use 

pesticides, pharmaceuticals, and 

personal care products. Many of these 

chemicals of emerging concern (CECs) 

are used in high volumes in various 

applications and, as a result, are capable 

of entering marine environments via 


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various routes. Currently, it is unclear 

what risk CECs pose to Hawaiian insular 

false killer whales or their habitat as 

little is known about the current 

occurrence, fate, and transport of CECs 

in the main Hawaiian Island region. 

Marine litter and debris has become 

an increasing problem in the oceans, 

with plastic debris being the most 

abundant (Derraik, 2002). Although 

marine litter has been identified by the 

BRT as a threat related to habitat, it 

could also be identified as a threat 

under disease as well as other manmade 

factors. For direct threats to false killer 

whales, ingestion of plastics can 

obstruct or damage the esophagus and 

the digestive or intestinal tracts, block 

gastric enzymatic secretions, and have 

other effects that could reduce an 

animal’s ability to feed and ultimately 

its overall fitness (Derraik, 2002). 

Ingestion of chemical light sticks used 

on swordfish longlines in Hawaii may 

pose an additional risk of chemical 

contamination. There is one 

documented case of ingestion of a net 

fragment by a false killer whale on the 

British Columbia coast (R. Baird, pers. 

comm., Cascadia Research Collective). 

For threats related to disease, risks 

include exposure to environmental 

contaminants contained in plastic 

resins. For threats related to other 

manmade factors, risks linked to plastic 

debris include entanglement, and 

introduction of alien species (Derraik, 

2002; Rios et al., 2007). These threats 

are not only possible for false killer 

whales, but for their prey as well. 

Oil is made up of thousands of 

different chemicals and some of the 

most toxic of these petroleum-related 

compounds are the polycyclic aromatic 

hydrocarbons (PAHs). These 

compounds are prevalent in coastal 

waters, especially in urban embayments, 

and have been shown to alter normal 

physiological function in marine biota 

(Varanasi et al., 1989; Stein et al., 1993). 

Concerns have been raised over the 

effects of exposure to PAHs, alone or in 

combination with other toxic 

contaminants, in marine mammals 

because of the worldwide use of fossil 

fuels (Geraci and Aubin, 1990) and the 

occurrence of oil spills in areas that 

support marine mammal populations. 

Marine mammals can be exposed to oil 

by various routes, such as inhalation of 

volatile PAHs, direct ingestion of oil, 

and consumption of contaminated prey 

(O’Hara and O’Shea, 2001). Vertebrates, 

such as fishes and cetaceans, rapidly 

take up PAHs present in the 

environment and quickly metabolize 

these compounds. The PAH metabolites 

are then concentrated in the bile for 

elimination (Varanasi et al., 1989). 

However, if a marine mammal has been 

exposed to a large amount of petroleum 

(e.g., after an oil spill) and the liver 

enzyme system has been overwhelmed 

such that it cannot efficiently 

metabolize the PAHs, there is the 

possibility that petroleum-related PAHs 

could pose a risk. After the Exxon 

Valdez oil spill in March 1989, several 

killer whales were observed to transit 

through oiled waters (Dahlheim and 

Matkin, 1994) in the region and 14 killer 

whales (33 percent) from the local AB 

pod disappeared between 1989 and 

1991. There was no clear evidence to 

link the oil exposure to the 

disappearance (and presumably deaths) 

of these whales, but it is plausible 

(Matkin et al., 2008). Oil spills have 

been reported in the main Hawaiian 

Islands. In May 1996, for example, an 

oil spill occurred in Pearl Harbor after 

a pipeline broke and spilled more than 

25,000 gallons of oil (Honolulu Star 

Bulletin, 1996). The impact of this spill 

and other main Hawaiian Island oil 

spills (e.g., Barbers Point in 2009) on 

Hawaiian insular false killer whales and 

their prey is not known. 

B: Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

As previously mentioned, this factor 

may have contributed to the historical 

decline of Hawaiian insular false killer 

whales with live-capture operations 

occurring prior to 1990. However, there 

are no current and/or future threats 

identified for this listing factor. 

Interactions with fisheries are discussed 

under Factor D (below). 

C: Disease or Predation 

Environmental Contaminants or 

Environmental Changes 

Disease and predation play a role in 

the success of any population, but small 

populations in particular can be 

extremely susceptible as this threat can 

have a disproportionate effect on small 

populations. Anthropogenic influences 

can potentially increase the risk of 

exposure to these pressures by lowering 

animals’ immune system defenses, 

which may have detrimental effects to 

the population as a whole and result in 

mortality and reduced reproductive 

potential. Disease-related impacts of 

individual threats, such as exposure to 

environmental contaminants, parasites, 

pathogens, and harmful algal blooms 

pose a medium threat to Hawaiian 

insular false killer whales. 

Although little is known about the 

occurrence of parasites in Hawaiian 

insular false killer whales, Hawaiian 

monk seals from the main Hawaiian 

Islands were exposed to protozoan and 

coccidian parasites. Discharge of raw or 

partially treated sewage effluent and 

contaminated freshwater runoff into 

marine coastal waters can increase the 

risk of pathogen transmission to animals 

that reside in nearshore areas, such as 

Hawaiian insular false killer whales. 

Additionally, insular false killer whales 

may be at an increased risk for exposure 

to biotoxins produced during harmful 

algal blooms (HAB) potentially caused 

from eutrophication and rising ocean 

temperature. Several Hawaiian monk 

seals died in the late 1970s and these 

deaths were attributed to exposure to 

the marine biotoxins ciguatoxin and 

maitotoxin from a HAB. HABs appear to 

be increasing in frequency and 

geographical distribution worldwide 

and pose a future threat to Hawaiian 

insular false killer whales. 

Short and Long-term Climate Change 

The threats from climate change are 

separated into two parts: In this section 

as it relates to an increase in disease 

vectors, and in Factor E as it relates to 

changes in sea level, ocean temperature, 

ocean pH, and expansion of lowproductivity areas. Climate change 

poses a medium threat to Hawaiian 

insular false killer whales due to the 

possible increase in disease vectors. 

Increased water temperature could 

change the composition of microbial 

communities in the main Hawaiian 

Islands. This may create an environment 

that could support new microbes not 

usually found in the region, thus 

exposing Hawaiian insular false killer 

whales to novel pathogens. 

D: The Inadequacy of Existing 

Regulatory Mechanisms 

The Lack of Reporting/Observing of 

Nearshore Fisheries Interactions 

As described previously, a high rate of 

fin disfigurements (Baird and Gorgone, 

2005) and other observations suggest 

interactions between fisheries and 

Hawaiian insular false killer whales. 

The continued lack of reporting/ 

observing of nearshore fisheries 

interactions with insular false killer 

whales is rated by the BRT as a medium 

level of current and future risk to 

Hawaiian insular false killer whales. 

The State of Hawaii does not monitor 

bycatch of marine mammals in any of its 

state fisheries. The federally-managed 

Hawaii-based shallow-set longline 

fishery maintains approximately 100 

percent observer coverage, and the 

federally-managed Hawaii-based deepset longline fishery maintains 

approximately 20 percent observer 

coverage. Troll, handline, pole-and-line, 


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shortline, and kaka line fisheries do not 

have observer coverage, whether they 

are state or federal. Even if all state and 

federal fisheries maintained 100 percent 

observer coverage, that would likely 

only eliminate possible intentional 

harm by fishermen; it would not 

necessarily reduce or eliminate 

incidental hooking or entanglement. 

Although each of these fisheries is 

required by law under the MMPA to 

report interactions with marine 

mammals, the low number of reports 

strongly suggests that interactions are 

occurring and are not being reported. 

However, there is also no way to enforce 

self-reporting. 

The Longline Prohibited Area Not 

Reversing the Decline of the DPS 

In addition to what the BRT identified 

as an inadequate regulatory mechanism 

as described above, we considered 

whether any other regulatory 

mechanisms directly or indirectly 

address what are deemed as the highest 

threats to the insular DPS: Small 

population size, and hooking, 

entanglement, or intentional harm by 

fishermen. Small population size is 

considered a high risk threat because of 

reduced genetic diversity, inbreeding 

depression, and other Allee effects, but 

these are inherent biological 

characteristics of the current population 

that cannot be altered by existing 

regulatory mechanisms. No legal 

protection is in place, nor could one be 

implemented, to reduce the threats of 

small population size. 

Regarding addressing the high threat 

of hooking and entanglement, a 

regulatory mechanism exists to partially 

address this threat from commercial 

longline fisheries. The longline 

prohibited area around the main 

Hawaiian Islands was implemented in 

1992 through Amendment 5 to the 

Western Pacific Pelagic Fisheries 

Management Plan to alleviate gear 

conflicts between longline fishermen 

versus handline and troll fishermen, 

charter boat operators, and recreational 

fishermen. Although characterized as a 

‘‘25–75 nm’’ longline exclusion 

boundary, the boundary was not set at 

a precise distance from shore and in fact 

varies from 42.4 nm (78.6 km) to 104.4 

nm (193.4 km) from shore from 

February through September (median 

distance 61.1 nm, 113.1 km). For the 

remaining four months of the year 

(October through January) 

approximately two-thirds (66.3 percent) 

of the boundary contracts towards the 

islands, such that the boundary ranges 

from 24.3 nm (45.1 km) to 104 nm from 

shore (median distance 48.7 nmi, 90.2 

km) (Baird, 2009). 

Longline fishing has thus been 

effectively excluded from the insular 

DPS’s entire core range (<40 km). This 

prohibited area thus indirectly benefits 

insular false killer whales by decreasing 

the amount of longline fishing in insular 

false killer whale habitat. However, the 

decline of the insular DPS has occurred 

mostly since then, in spite of the 

prohibited area. In addition, and 

discussed further in the Protective 

Efforts section, the prohibited area is 

being proposed for complete closure to 

longline fishing out to the current 

February–September boundary, yearround. If implemented, this would 

exclude longline fishing from most of 

the geographic range of the insular stock 

as it is defined in the draft 2010 SAR, 

including most of the pelagic/insular 

stock overlap zone (Carretta et al., 

2010). Nevertheless, although the 

longline prohibited area and the 

proposed expansion, which is 

anticipated to protect the pelagic false 

killer whale, could also benefit the 

insular DPS by reducing incidental 

serious injury and mortality, there is no 

evidence that existence of the 

prohibited area is reversing, or will 

reverse, the decline of the DPS. Thus, 

this regulatory mechanism alone is 

inadequate to protect the insular DPS of 

Hawaiian false killer whales from 

further decline and is ranked a high risk 

threat. 

In summary, following a review of the 

best available information, the greatest 

threats to the species are still 

insufficiently addressed. This is either 

because the efforts can’t or don’t address 

all of the threats, or because 

enforcement of regulatory mechanisms 

is limited. Protective efforts from 

regulatory mechanisms, such as the 

MMPA, Clean Water Act, etc., are 

discussed in a later section. However, 

given the size of the U.S. EEZ 

surrounding the main Hawaiian Islands, 

adequate enforcement of laws in such a 

vast area is difficult. Therefore, we find 

that existing regulations are inadequate 

to protect the species from further 

declines throughout all of its range, and 

thus the inadequacy of existing 

regulatory mechanisms is itself a high 

threat to the Hawaiian insular false 

killer whale. 

E: Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Short and Long-term Climate Change 

Climate change poses a medium 

threat to Hawaiian insular false killer 

whales and could be manifested in 

many ways, including changes in sea 

level, ocean temperature, ocean pH, and 

expansion of low-productivity areas 

(i.e., ‘‘dead zones’’). Sea level change, 

however, is unlikely to affect false killer 

whales. In contrast, ocean temperature 

plays a key role in determining habitat 

for many species, and changes in the 

parameter would likely have a strong 

impact on false killer whales. Many 

prey species and competitor species 

have ranges closely linked to ocean 

temperature characteristics, including 

isotherms and gradients. Changes in 

temperature regimes could have severe 

impacts on pelagic ecosystems, in 

general. For false killer whales, 

specifically, many of their forage species 

are migratory and/or mobile (i.e., few 

benthic species) and could alter their 

distribution. The movement of other 

large predatory marine species’ ranges is 

likely to change, which could impact 

competition with false killer whales. 

However, a much better understanding 

is needed of prey preferences and 

predator-prey dynamics before 

speculating on the possible impacts of 

warming or cooling trends on insular 

false killer whales. Temperature may 

also have a direct linkage to 

productivity and growth rate, but again 

it remains difficult to establish 

directionality of net effect. 

Climate change related ocean 

acidification could alter the 

productivity and composition of the 

main Hawaiian Island ecosystem. 

Increases in low-productivity areas (e.g., 

Polovina et al., 2008; Brewer and 

Peltzer, 2009) would probably have the 

strongest impacts on false killer whales. 

Lower productivity resulting in 

decreases in forage abundance would 

have a negative impact unless mobile 

forage species were concentrated into 

smaller regions that could then be 

exploited more easily. Again, presumed 

effects are large but net directionality is 

difficult to predict. One of the largest 

unknowns is whether the insular 

population would remain in the same 

location if conditions became less 

favorable. 

Interactions With Commercial Longline 

Fisheries 

Interactions with commercial longline 

fisheries was rated as a high level of 

current and/or future risk to Hawaiian 

insular false killer whales. The BRT 

concluded that the intense and 

increased fishing activity within the 

known range of insular false killer 

whales since the 1970s suggests a high 

risk of fisheries interactions, even 

though the extent of interactions with 

almost all of the fisheries is 

unquantified or unknown. The only 

fisheries occurring within the range of 

the insular DPS for which there are 

recent quantitative estimates of hooking 


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and entanglement of false killer whales 

are the Hawaii-based federal 

commercial longline fisheries. These 

fisheries have been largely excluded 

from the known range of Hawaiian 

insular false killer whales since the 

early 1990s, suggesting the current and 

future risk from longlining (assuming 

the current restrictions remain in place), 

although high, is somewhat lower 

compared to the historic risk. It is likely 

that unobserved interactions with these 

longline fisheries represented an even 

higher risk up until the early 1990s. 

Beginning in 1994, onboard observers 

in Hawaii-based longline fisheries have 

systematically recorded information on 

interactions with protected species, 

including marine mammals. Observer 

coverage initially was about 4 percent 

for all longline effort combined, but 

increased beginning in 1999. Since 

2004, observer coverage has been 100 

percent for shallow-set trips and 20 

percent for deep-set trips. Both fisheries 

operate on the high seas and within the 

U.S. EEZ. False killer whales have been 

the most frequently hooked or entangled 

cetacean, primarily during tunatargeting longline sets (Forney and 

Kobayashi, 2007; McCracken and 

Forney, 2010). Average mortality and 

serious injury, based on 31 observed 

interactions between 1994 and 2008, has 

been about 13 (CV = 0.37) false killer 

whales per year (calculated from 

estimates in Forney and Kobayashi, 

2007; McCracken and Forney, 2010). 

Eleven additional false killer whales 

were observed injured or killed during 

2009 throughout the range of the 

fisheries. 

Most of the observed interactions with 

false killer whales in the Hawaii-based 

longline fisheries occurred more than 

140 km from the Hawaiian Islands, 

beyond the known range of insular false 

killer whales; however, a few 

interactions occurred closer to the 

Hawaiian Islands and may have 

involved insular animals. Following a 

review of insular false killer whale 

movements and other factors, the 2004 

through 2008 takes have been prorated 

to insular versus pelagic animals based 

on geographic location (McCracken and 

Forney, 2010). Given current observer 

coverage levels, only approximately 20 

percent of all takes are observed and 

have known locations. Annually during 

this 5-year period, one false killer whale 

was determined to have a non-serious 

injury within the 140 km extended 

range and an average of 0.60 insular 

false killer whales were estimated to 

have been killed or seriously injured 

(McCracken and Forney, 2010). This 

estimate assumes that the probability of 

taking Hawaiian insular versus pelagic 

false killer whales is proportional to the 

estimated density of each population in 

the area where the takes occurred 

(NMFS, 2005). There are presently no 

data available to evaluate this 

assumption or whether there are other 

potential differences that might cause 

the two populations to behave 

differently with respect to longline gear. 

Historically, more frequent takes may 

have occurred when there was much 

greater overlap between insular false 

killer whales and longline fisheries. 

Interactions With Troll, Handline, 

Shortline, and Kaka Line Fisheries 

A high level of current and future risk 

was found by the BRT for these 

fisheries. This is based on the large scale 

and distribution of the troll and 

handline fisheries, and on anecdotal 

reports of interactions with cetaceans, 

although interactions specific to false 

killer whales are known only for the 

troll fishery. The troll fishery has by far 

the greatest participation and effort in 

fishing days of any fishery within the 

known range of insular false killer 

whales, followed by the handline 

fishery, with the kaka line and shortline 

fisheries a distant third and fourth. The 

kaka line and shortline fishing methods 

have been implicated as a threat based 

on the similarity of these fishing gears 

and methods to longline fishing. 

Potential threats associated with these 

activities include hooking or 

entanglement of false killer whales in 

gear, gear ingestion, direct shooting or 

injury of false killer whales by 

fishermen, and competition with 

fisheries for prey species, such as tuna 

and billfish. 

False killer whales have been 

documented taking catch or bait during 

non-longline commercial and 

recreational fishing operations around 

the Hawaiian Islands since at least the 

1940s (Shallenberger, 1981; Nitta and 

Henderson, 1993), but little information 

is available to document the effects of 

these interactions on false killer whales. 

Animals may become hooked or 

entangled, and in some cases, fishermen 

have reported shooting at false killer 

whales and other dolphins or using 

explosives or chemicals to avoid losing 

catch or bait (Schlais, 1985; Nitta and 

Henderson, 1993; TEC, 2009). Based on 

photographs of Hawaiian insular false 

killer whales, Baird and Gorgone (2005) 

documented a high rate of dorsal fin 

disfigurements that were consistent 

with injuries from unidentified fishing 

line (3 out of 80 individuals or 3.75 

percent, compared to 0–0.85 percent for 

other studied cetacean populations). 

Interactions with false killer whales 

have been reported for troll fisheries 

(Shallenberger, 1981; Zimmerman, 

1983; Nitta and Henderson, 1993), and 

possibly shortline or kaka line fisheries 

(anecdotal reports of ‘‘blackfish’’ 

interactions that may have been false 

killer whales; cited in Baird, 2010). 

Some of these recreational fisheries in 

Hawaii target the same species as 

commercial fisheries (e.g., tuna, billfish) 

and use the same or similar gear, and 

might also be expected to experience 

interactions with insular false killer 

whales. 

Although there are only a few 

published reports of interactions 

between false killer whales and troll 

fisheries, anecdotal evidence indicates 

that false killer whales have been 

associated with troll fisheries for 

decades, often taking catch or bait from 

lines. It is unknown whether animals 

get hooked or entangled in troll gear (as 

they do in longline gear). Fishermen 

have reported shooting at animals or 

taking other measures to protect their 

bait, catch, or gear (Shallenberger, 

1981), although it has been illegal to 

intentionally kill or injure cetaceans 

since the MMPA was passed in 1972. 

Anecdotal reports indicate that 

interactions between handline fisheries 

and cetaceans have been common since 

at least the 1970s. Bottlenose dolphins 

or rough-toothed dolphins (Steno 

bredanensis) have generally been 

implicated rather than false killer 

whales. No information is available to 

determine whether handline fishermen 

shoot at cetaceans or take other harmful 

measures to try to prevent the loss of 

bait or catch, as has been reported for 

the other fisheries (Shallenberger, 1981; 

Zimmerman, 1983; Nitta and 

Henderson, 1993). No interactions with 

false killer whales have been reported to 

NMFS under the Marine Mammal 

Authorization Program (required for 

fisheries listed on the List of Fisheries 

(LOF)) even though the troll and 

handline fisheries are listed as Category 

III fisheries. There is currently no 

independent observer reporting system. 

Self-reporting is the only method 

currently available to document 

potential marine mammal interactions 

in these fisheries. The shortline fishery 

was added to the LOF in 2010 by 

analogy as a Category II fishery and the 

kaka line fishery is proposed to be 

added to the 2011 LOF as a Category III 

fishery. No interactions between the 

shortline or kaka line fishery and false 

killer whales have been reported to 

NMFS, and currently there is no 

independent observer program for 

monitoring bycatch in either the 

shortline or the kaka line fishery. There 

are anecdotal reports of interactions 

with cetaceans off the north side of 


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Maui, but the species and extent of 

interactions are unknown (74 FR 58879, 

Nov. 16, 2009). Based on the similarity 

of these fisheries to longline fisheries 

(with respect to gear type and target 

species), it is likely that false killer 

whales are involved; however, the 

nature and extent of any such 

interactions are unknown. Although 

there is no evidence to suggest a 

disproportionate threat from the 

shortline and kaka line fisheries 

compared with other, much larger 

fisheries operating within the known 

range of insular false killer whales, the 

2008 increase in catch suggests that the 

shortline fishery could expand rapidly. 

Small Population Size 

Reduced genetic diversity, inbreeding 

depression, and other Allee effects 

associated with small population size 

represent a high risk to current and 

future Hawaiian insular false killer 

whales. The current estimated number 

of breeding adults (46 individuals) is so 

small that inbreeding depression could 

have increasingly negative effects on 

population growth rate and other traits, 

including social factors (such as 

reduced efficiency in group foraging and 

potential loss of knowledge needed to 

deal with unusual environmental 

events), may further compromise the 

ability of Hawaiian insular false killer 

whales to recover to healthy levels. 

The processes that cause small 

populations to have a greater risk of 

extinction include genetic and 

behavioral problems, as well as chance 

processes like demographic and 

environmental stochasticity (Shaffer, 

1981; Gilpin and Soule, 1986; Goodman, 

1987; Simberloff, 1988; Lande, 1993). 

The decrease in per capita population 

growth as population size declines is 

often referred to as the ‘‘Allee effect’’ or 

‘‘depensation’’ (see references in Oleson 

et al., 2010) . In essence, as the number 

of individuals decreases there are costs 

from a lack of predator saturation, 

impaired anti-predator vigilance or 

defence, a breakdown of cooperative 

feeding, an increased possibility of 

inbreeding depression or other genetic 

issues, decreased birth rates as a result 

of not finding mates, or a combination 

of these effects. The Allee effect 

increases risk to small populations 

directly by contributing to the risk of 

extinction, and indirectly by decreasing 

the rate of recovery of exploited 

populations and, therefore, maintaining 

populations at a smaller size where 

extinction risk is higher for a variety of 

reasons (Dennis, 1989; Stephens and 

Sutherland, 1999). 

In addition, social odontocetes (such 

as false killer whales) may be 

particularly vulnerable over and beyond 

the numerical loss of individuals to the 

population (Wade and Reeves, 2010). 

Some of these effects may act in a 

similar fashion to Allee effects or have 

a more pronounced effect at low 

population sizes. Survival and 

reproductive success may depend on 

such things as social cohesion and 

social organization, mutual aid in 

defence against predators, and possible 

alloparental care such as ‘‘babysitting’’ 

and communal nursing, sufficient 

opportunities for transfer of 

‘‘knowledge’’ (learned behavior) from 

one generation to the next, and 

leadership by older individuals that 

know where and when to find scarce 

prey resources and how to avoid highrisk circumstances (e.g., ice entrapment, 

stranding, predation). 

False killer whales share several life 

history traits with killer whales and 

belugas that make them prone to 

problems associated with small 

population size: A low intrinsic growth 

rate (a consequence of late maturity and 

a low birth rate), strong social structure 

demonstrated through close associations 

of individuals over long time periods, 

the potential for high adult survival 

enabled by the intergenerational 

cultural transmission of certain types of 

awareness or specialized behavior, and 

a low effective population size 

compared to abundance. This last 

feature leads to low genetic diversity, 

which increases the probability that 

inbreeding depression will occur at a 

higher level of total abundance than is 

the case for many other species. 

Franklin (1980) found that inbreeding 

depression increases substantially when 

the number of reproductive animals 

becomes fewer than 50. The adult 

population of Hawaiian insular false 

killer whales is likely approaching the 

level at which the effects of inbreeding 

depression become a factor in 

determining whether the population is 

able to maintain itself or increase. 

Anthropogenic Noise 

Anthropogenic noise, caused from 

sonar and seismic exploration from 

sources including military, 

oceanographic, and fishing sonar, is 

rated as a medium level of current and 

future risk to Hawaiian insular false 

killer whales. Odontocete cetaceans, 

including false killer whales, have a 

highly evolved acoustic sensory system. 

False killer whales rely heavily on their 

acoustic sensory capabilities for 

navigation, foraging, and 

communicating with conspecifics. 

Potential and measured impacts of 

anthropogenic noise on cetaceans have 

been reviewed by a number of authors 

(Richardson et al., 1995; Nowacek et al., 

2004; Hildebrand, 2005; Weilgart, 2007). 

No specific studies or observations of 

the impacts of noise on wild false killer 

whales are available. However, intense 

anthropogenic sounds have the 

potential to interfere with the acoustic 

sensory system of false killer whales by 

causing permanent or temporary hearing 

loss, thereby masking the reception of 

navigation, foraging, or communication 

signals, or through disruption of 

reproductive, foraging, or social 

behavior. Experiments on a captive false 

killer whale have revealed that it is 

possible to disrupt echolocation 

efficiency in this species with the level 

of disruption related to the specific 

frequency content of the noise source as 

well as the magnitude and duration of 

the exposure (Mooney et al., 2009). 

In recent years there has been 

increasing concern that active sonar and 

seismic operations are harmful to 

beaked whales (Cox et al., 2006) and 

other cetaceans, including melonheaded whales (Peponocephala electra) 

(Southall et al., 2006), and pygmy killer 

whales (Feresa attenuata) (Wang and 

Yang, 2006). The use of active sonar 

from military vessels has been 

implicated in mass strandings of beaked 

whales and delphinids. A 2004 massstranding of melon-headed whales in 

Hanalei Bay, Kauai, occurred during a 

multi-national sonar training event 

around Hawaii (Southall et al., 2006). 

Although data limitations preclude a 

conclusive finding regarding the role of 

Navy sonar in triggering this event, 

sonar transmissions were considered a 

plausible, if not likely, cause of the mass 

stranding. False killer whales have been 

herded using loud sounds in drive 

fisheries off Japan (Kishiro and Kasuya, 

1993; Brownell et al., 2008), suggesting 

that high-intensity noise can affect the 

behavior of false killer whales in 

Hawaiian waters. The U.S. Navy’s 

Hawaii Range Complex surrounds the 

main Hawaiian Islands and is regularly 

used for training exercises that 

broadcast high-intensity, mid-frequency 

sonar sounds (U.S. Navy, 2008). NMFS 

regularly reviews these exercises and 

the potential for exposure of midfrequency sonar and may issue a Letter 

of Authorization (LOA) allowing 

incidental take (MMPA; 16 USC 

1362(18)(B)). In 2010, NMFS authorized 

Level B harassment (i.e., having the 

potential to disturb) for 51 false killer 

whales; no Level A harassment (i.e., 

having the potential to injure) or 

mortality was authorized for false killer 

whales. 


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Population Viability Analysis 

In addition to the qualitative analysis 

of possible threats to insular false killer 

whales, the BRT also conducted a 

quantitative analysis of extinction risk 

using a Population Viability Analysis 

(PVA), a model used to quantify 

extinction risk by integrating and 

analyzing the various risks a population 

may face. This PVA was conducted to 

evaluate the probability of actual and 

near extinction, with ‘‘near extinction’’ 

defined as fewer than 20 animals within 

75 years, or three false killer whale 

generations. The PVA took into account 

measured, estimated, and inferred 

information on basic life history, 

population size and trends, as well as 

varying impacts of catastrophes, 

environmental stochasticity, and Allee 

effects. A variety of alternative scenarios 

were evaluated, and most models 

indicated a probability of greater than 

50 percent likelihood of the DPS 

declining to fewer than 20 individuals 

within 75 years. Even though the 

evaluation of individual threats to the 

insular population was limited to 60 

years duration (the approximate lifespan 

of a false killer whale), the PVA results 

modeled probability of reaching near 

extinction by 50 years (2 generations), 

75 years (3 generations), and 125 years 

(5 generations). Although 60 years 

wasn’t specifically modeled, the results 

from reaching near extinction by 50 

years still showed a high risk of 

extinction for Hawaiian insular false 

killer whales. The PVA results are 

described in greater detail in Appendix 

B of the status review report (Oleson et 

al., 2010). 

Extinction Risk Assessment Conclusion 

by the BRT 

Given the results of the PVA analysis 

and the possible threats to the insular 

population, the BRT agreed by 

consensus that Hawaiian insular false 

killer whales are at a high risk of 

extinction due to either small-scale 

incremental impacts over time (e.g., 

reduced fecundity or survivorship due 

to direct or indirect effects of fisheries, 

and small population size) or a single 

catastrophic event (e.g., disease 

outbreak). Uncertainty as to the causes 

of the recent decline, the current threats, 

and current viability of the population 

increases concern for this group of 

whales. 

Summary of Findings 

After considering all elements in the 

status review report and, in particular, 

the PVA and the five ESA section 4(a)(1) 

factors, we have determined that the 

Hawaiian insular false killer whale DPS 

is in danger of extinction throughout all 

of its range. Overall, most PVA models 

indicated a probability of greater than 

50 percent likelihood of the DPS 

declining to fewer than 20 individuals 

within 75 years, which would result in 

functional extinction beyond the point 

where recovery is possible. The risk 

table provided in the status review 

report identifies small population size, 

and hooking, entanglement, or 

intentional harm by fishermen as the 

two threats that pose the most 

significant risk to Hawaiian insular false 

killer whales, while a number of other 

threats potentially pose a medium and 

high risk to this population. The decline 

in abundance of Hawaiian insular false 

killer whales likely resulted from a 

number of factors acting synergistically. 

This description of risk and the level of 

concern for Hawaiian insular false killer 

whales are similar to those described for 

other species of social odontocetes 

listed as endangered under the ESA 

(e.g., Southern Resident killer whales 

and Cook Inlet beluga whales). 

Protective Efforts 

Section 4(b)(1)(A) of the ESA requires 

consideration of efforts being made to 

protect a species that has been 

petitioned for listing. Accordingly, we 

assessed conservation measures being 

taken to protect the Hawaiian insular 

false killer whale DPS to determine 

whether they ameliorate this species’ 

extinction risk (50 CFR 424.11(f)). In 

judging the efficacy of conservation 

efforts, identified in conservation 

agreements, conservation plans, 

management plans, or similar 

documents, that have yet to be 

implemented or to show effectiveness, 

the agency considers the following: the 

substantive, protective, and 

conservation elements of such efforts; 

the degree of certainty that such efforts 

will reliably be implemented; the degree 

of certainty that such efforts will be 

effective in furthering the conservation 

of the species; and the presence of 

monitoring provisions that track the 

effectiveness of recovery efforts, and 

that inform iterative refinements to 

management as information is accrued 

(Policy for Evaluating Conservation 

Efforts (PECE); 68 FR 15100). 

The conservation or protective efforts 

that met the aforementioned criteria and 

are currently in place include the 

following: (1) Take prohibitions under 

the MMPA; (2) authorization and 

control of incidental take under the 

MMPA; (3) protection under other 

statutory authorities (i.e., the Clean 

Water Act, MARPOL); (4) the longline 

prohibited area; (5) Watchable Wildlife 

Viewing Guidelines; and (6) active 

research programs. The conservation or 

protective efforts that also met the 

aforementioned criteria but are not yet 

in place include the following: (7) The 

draft False Killer Whale Take Reduction 

Plan; and (8) possible expansion of the 

Hawaiian Islands Humpback Whale 

National Marine Sanctuary. Each of 

these efforts is further described below. 

(1) Take Prohibitions Under the MMPA 

Various sections of the MMPA 

provide for protection of false killer 

whales. A goal of the MMPA is to 

maintain marine mammal species or 

stocks at or above their optimum 

sustainable population level. The 

MMPA established a moratorium on the 

taking of marine mammals by any 

person or vessel subject to U.S. 

jurisdiction. It defines ‘‘take’’ to mean ‘‘to 

hunt, harass, capture, or kill’’ any 

marine mammal or attempt to do so. 

Exceptions to the moratorium can be 

made through permitting actions for 

take incidental to commercial fishing 

and other non-fishing activities; for 

scientific research; and for public 

display at licensed institutions such as 

aquaria and science centers. 

(2) Authorization and Control of 

Incidental Take Under the MMPA 

In 1981, Congress amended the 

MMPA to provide for incidental take 

authorizations for maritime activities, 

provided NMFS found the takings 

would be of small numbers and have no 

more than a ‘‘negligible impact’’ on those 

marine mammal species not listed as 

depleted under the MMPA (i.e., listed 

under the ESA or below the optimum 

sustainable population). These 

incidental take authorizations, also 

known as Letters of Authorization or 

LOAs, have requirements for monitoring 

and reporting, and when appropriate 

include mitigation measures. Incidental 

take from the use of sonar by the U.S. 

Navy (Navy) is regulated under the 

MMPA. In 2007, the Navy requested a 

5-year LOA for the incidental 

harassment of marine mammals 

incidental to the training events within 

the Hawaii Range Complex (HRC) for 

the period July 2008 through July 2013. 

The LOA was sought since the training 

events may expose certain marine 

mammals that may be present within 

the HRC to sound from hull-mounted 

mid-frequency active tactical sonar or to 

pressures from underwater detonations. 

In 2010, NMFS authorized Level B 

harassment for 51 false killer whales; no 

Level A harassment or mortality was 

authorized for false killer whales. For 

military readiness activities, Level A 

harassment is defined in the MMPA as 

‘‘any act that injures or has the 


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significant potential to injure a marine 

mammal or marine mammal stock in the 

wild’’, and Level B harassment is 

defined as ‘‘any act that disturbs or is 

likely to disturb a marine mammal or 

marine mammal stock in the wild by 

causing disruption of natural behavioral 

patterns, including, but not limited to, 

migration, surfacing, nursing, breeding, 

feeding, or sheltering, to a point where 

such behavioral patterns are abandoned 

or significantly altered’’ (16 U.S.C. 

1362(18)(B)). 

The MMPA has various requirements 

related to take of marine mammals 

incidental to commercial fisheries. First, 

section 118 requires NMFS to place all 

U.S. commercial fisheries into one of 

three categories in the LOF based on the 

level of incidental serious injury and 

mortality of marine mammals occurring 

in each fishery. The classification of a 

fishery on the LOF determines whether 

participants in that fishery may be 

required to comply with certain other 

provisions of the MMPA. Owners of 

vessels or gear engaging in a Category I 

or II fishery are required to register with 

NMFS and obtain a marine mammal 

authorization under the Marine 

Mammal Authorization Program to 

lawfully take a non-endangered and 

non-threatened marine mammal 

incidental to commercial fishing. 

Participants in Category I or II fisheries 

are also required to carry an observer 

onboard if requested, and comply with 

any applicable take reduction plans. 

Participants in Category I, II, or III 

fisheries must report to NMFS all 

incidental injuries and mortalities of 

marine mammals that occur during 

commercial fishing operations. 

The Hawaii-based deep-set longline 

fishery is classified as a Category I 

(frequent incidental mortality and 

serious injury) and has 20 percent 

observer coverage; the Hawaii-based 

shallow-set longline fishery and the 

Hawaii shortline fishery are both 

classified as Category II fisheries 

(occasional incidental mortality and 

serious injury) and have 100 percent 

and 0 percent observer coverage, 

respectively. The troll and handline 

fisheries are all classified as Category III 

fisheries (remote likelihood of/no 

known incidental mortality and serious 

injury) and the kaka line fishery is 

proposed to be listed as Category III; 

each has 0 percent observer coverage. 

Compliance with reporting 

requirements is likely low and reports 

provide only a minimum estimate of the 

number of interactions. However, 

without observer programs for most of 

the fisheries, self-reporting of incidental 

take is the only option currently 

available to document interactions. 

The insular population has been 

designated as the Hawaii insular stock 

for the purposes of management under 

the MMPA. As of the draft 2010 SAR 

(Carretta et al., 2010), the Hawaii insular 

stock is not listed as ‘‘threatened’’ or 

‘‘endangered’’ under the ESA, nor is it 

considered ‘‘depleted’’ under the 

MMPA. In addition, the estimated 

average annual human-caused mortality 

and serious injury for this stock (0.60 

animals per year) is slightly less than 

the potential biological removal (PBR) 

(0.61); therefore, the insular false killer 

whale stock is not considered ‘‘strategic’’ 

under the MMPA. Since the insular 

stock is neither ‘‘depleted’’ nor 

‘‘strategic’’ under the MMPA, no 

conservation plan to foster recovery has 

been developed. 

(3) Protection Under Other Statutory 

Authorities (i.e., the Clean Water Act, 

MARPOL) 

Other statutory authorities, such as 

the Federal Clean Water Act (CWA) and 

MARPOL (International Convention for 

the Prevention of Pollution from Ships), 

offer some protection to Hawaiian 

insular false killer whales. Federal 

programs carried out under the CWA 

help to ensure that water quality is 

maintained or improved. Section 402 

(discharge of pollutants into water 

bodies) regulates activities that might 

degrade false killer whale habitat or 

prey. Although programs carried out 

under the CWA are well funded and 

enforcement of this law occurs, albeit 

limited, it is unlikely that programs are 

sufficient to fully protect false killer 

whale habitat or prey. MARPOL was 

designed to minimize pollution of the 

seas, including dumping of debris and 

plastics, oil, and exhaust pollution. All 

ships flagged under countries that are 

signatories to MARPOL are subject to its 

requirements. Although this is an 

international convention with a large 

number of signatories, the large expanse 

of the oceans make enforcement of 

illegal marine pollution difficult to 

enforce. 

(4) The Longline Prohibited Area 

The Main Hawaiian Islands Longline 

Prohibited Area was implemented in 

1992 through Amendment 5 to the 

Western Pacific Pelagic Fisheries 

Management Plan to alleviate gear 

conflicts between Hawaii-based longline 

fishermen versus handline and troll 

fishermen, charter boat operators, and 

recreational fishermen. The prohibited 

area varies from 25–75 nm offshore 

seasonally and excludes longline fishing 

in much of the range of the Hawaiian 

insular false killer whale for 8 months 

of the year. Since implementation of the 

prohibited area, however, decline of the 

insular DPS has still occurred. 

(5) Watchable Wildlife Viewing 

Guidelines 

Watchable Wildlife Viewing 

Guidelines exist for other species of 

marine mammals in Hawaiian waters, 

including false killer whales. The 

recommended distance for observation 

is 150 ft when on the beaches or on the 

water and 1,000 ft when operating an 

aircraft. These viewing guidelines, 

however, are only recommendations 

and are not legally enforceable. 

(6) Active Research Programs 

Finally, there are a number of active 

research programs that are currently 

identifying Hawaiian false killer whale 

data gaps and improving our 

understanding of possible risk factors. 

For example, research priorities include 

a need for better understanding of 

movements, stock structure, population 

genetics, contaminant levels, etc. 

Valuable data is being collected, 

however, data collection and analysis 

can take a considerable amount of time. 

(7) Draft False Killer Whale Take 

Reduction Plan 

The Hawaii pelagic stock of false 

killer whales was designated as a 

‘‘strategic stock’’ in 2000, but is not 

considered ‘‘depleted’’ under the 

MMPA. Current levels of human-caused 

mortality and serious injury (7.3 

animals per year) exceed the stocks PBR 

level (2.5). In 2009 NMFS convened a 

false killer whale take reduction team to 

develop a Take Reduction Plan pursuant 

to section 118 of the MMPA. The take 

reduction team submitted its consensus 

recommendations (draft Take Reduction 

Plan, or Plan) to NMFS on July 19, 2010. 

NMFS is currently evaluating the Plan. 

NMFS will then issue a proposed rule 

and implementing regulations based on 

the team’s recommendations, gather 

public comments, and publish a final 

rule and implementing regulations in 

the Federal Register. 

The immediate goal of the Plan is to 

reduce, within 6 months of its 

implementation, incidental mortality 

and serious injury occurring within the 

U.S. EEZ surrounding the Hawaiian 

Islands of the Hawaii pelagic stock of 

false killer whales in the Hawaii-based 

longline fisheries to less than the stock’s 

PBR level of 2.5 false killer whales per 

year. The long-term goal of the Plan is 

to reduce, within 5 years of its 

implementation, the incidental 

mortality and serious injury of the 

Hawaii pelagic, Hawaii insular, and 

Palmyra Atoll stocks of false killer 

whales to insignificant levels 


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approaching a zero mortality and 

serious injury rate. 

Although there are other U.S. fisheries 

that may have incidental mortality and 

serious injury of false killer whales, 

such as commercial and recreational 

trolling and other hook-and-line 

fisheries, the Plan does not include 

recommendations for reducing bycatch 

in these other fisheries. Instead, the Plan 

focuses on the fisheries that are known 

to pose significant risk to the region’s 

stocks of false killer whales. 

The Hawaii insular stock, which is 

being proposed as the insular DPS, is 

known to interact or geographically 

(partially) overlap with the Hawaiibased longline fisheries. The draft Take 

Reduction Plan contains a 

recommendation for the year-round 

closure of a portion of the Longline 

Fishing Prohibited Area that lies to the 

north of the main Hawaiian Islands and 

is currently open to longline fishing for 

four months of the year. This closure of 

the northern Prohibited Area, if 

implemented, would exclude longline 

fishing from most of the geographic 

range of the Hawaii insular stock as it 

is defined in the draft 2010 SAR 

(Carretta et al., 2010). It is anticipated 

that this proposed closure would 

therefore reduce the incidental serious 

injury and mortality of Hawaiian insular 

false killer whales in the Hawaii-based 

longline fisheries. Other Take Reduction 

Plan recommendations include a 

combination of additional area closures 

to the south of the Hawaiian Islands, as 

well as the use of circle hooks, weak 

hooks, increased observer coverage, and 

captains’ education and outreach, which 

if instituted would primarily benefit 

pelagic false killer whales outside the 

longline prohibited area, but may also 

provide some benefits to the insular 

DPS. 

(8) Possible Expansion of the Hawaiian 

Islands Humpback Whale National 

Marine Sanctuary 

With respect to the State of Hawaii, 

the Hawaiian Islands Humpback Whale 

National Marine Sanctuary is currently 

undergoing a multi-year management 

plan review to assess the Sanctuary’s 

programs and effectiveness. The plan 

was last revised in 2002 and the 

Sanctuary is required by law to 

periodically update it. The Sanctuary, 

formed by Congress in 1992, is also 

proposing to ‘‘expand its scope and 

direction to protect and conserve other 

living marine resources besides 

humpback whales.’’ Currently, only 

humpback whales (Megaptera 

novaeangliae) are afforded additional 

Federal protections within the 

Sanctuary, which includes prohibiting 

approaches closer than 300 ft when on 

the water and 1,000 ft when operating 

an aircraft (15 CFR 922.184). 

Summary of Protective Efforts 

We support all conservation efforts 

currently in effect and those that are 

planned for the near future, as 

mentioned above. However, these efforts 

lack the certainty of implementation 

and effectiveness so as to remove or 

reduce threats specifically to Hawaiian 

insular false killer whales. Specifically, 

the MMPA, CWA, and MARPOL are all 

certain and effective regulatory 

measures, but they do not cover indirect 

or cumulative threats, such as non-point 

source pollution, and enforcement 

capacity is extremely limited in such a 

vast EEZ around the main Hawaiian 

Islands. The longline prohibited area 

has also been effective by reducing 

interactions with the insular DPS since 

1992, yet interactions have still been 

documented and the total population 

size of the insular DPS has declined 

since then. The Watchable Wildlife 

Viewing Guidelines are only 

recommendations and thus aren’t 

legally enforceable. The active research 

programs have gathered valuable data, 

but many data gaps still remain and 

research is costly and could take 

decades. The draft Take Reduction Plan 

has not yet been implemented, although 

it will likely be beneficial to the insular 

DPS. It, however, will not address 

indirect or cumulative effects. Finally, 

the possible expansion of the Hawaiian 

Islands Humpback Whale National 

Marine Sanctuary is not definite. It is 

unknown whether false killer whales 

will be added as a species under 

protection, nor is it certain that it will 

be able to address indirect or 

cumulative threats. Therefore, we have 

determined that these conservation 

efforts are not comprehensive in 

addressing the many other issues now 

confronting insular false killer whales 

(e.g., small population effects) and thus 

will not alter the extinction risk of the 

species. In developing our final listing 

determination, we will consider the best 

available information concerning these 

efforts, and any other efforts by the State 

of Hawaii or local entities, for which we 

have information (see description of 

PECE above). 

Proposed Listing Determination 

Section 4(b)(1) of the ESA requires 

that the listing determination be based 

solely on the best scientific and 

commercial data available, after 

conducting a review of the status of the 

species and after taking into account 

those efforts, if any, being made by any 

state or foreign nation to protect and 

conserve the species. We have reviewed 

the petition, the report of the BRT 

(Oleson et al., 2010), and other available 

published and unpublished 

information. 

Based on this review, we agree with 

the BRT’s assessment and conclude that 

the Hawaiian insular false killer whale 

meets the discreteness and significance 

criteria for a DPS (Oleson et al., 2010). 

The Hawaiian insular false killer whale 

is discrete from the pelagic population 

based on genetic discontinuity and the 

uniqueness of its behavior related to 

habitat use patterns. This population of 

Hawaiian false killer whales is 

significant to the species as a whole 

based on its existence in a unique 

ecological setting, including diet and 

habitat and how it differs from that of 

other false killer whales, the potential 

for marked genetic characteristic 

differences leading to adaptive traits, 

and maintenance of cultural diversity. 

We also agree with the BRT’s 

assessment of possible threats and their 

current and/or future risk to the insular 

DPS. The greatest threats to the insular 

population are small population effects 

and hooking, entanglement, or 

intentional harm by fishermen. Lastly, 

we also agree with the BRT’s assessment 

of extinction risk analysis where most 

PVA models indicated a probability of 

greater than 50 percent likelihood of the 

DPS declining to fewer than 20 

individuals within 75 years, which 

would result in functional extinction 

beyond the point where recovery is 

possible. 

Proposed conservation efforts, 

including those to protect the pelagic 

population of Hawaiian false killer 

whales as described in the previous 

section, may also benefit the insular 

population. Taken together, however, 

we have determined that these 

conservation efforts are not holistic or 

comprehensive in addressing the many 

other issues now confronting insular 

false killer whales and thus will not 

alter the extinction risk of the species. 

Based on the best scientific and 

commercial information available, 

including the status review report, we 

conclude that the Hawaiian insular false 

killer whale DPS is presently in danger 

of extinction throughout all of its range 

because of: (1) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range 

(reduced total prey biomass; 

competition with commercial fisheries; 

competition with recreational fisheries; 

reduced prey size; and accumulation of 

natural or anthropogenic contaminants); 

(2) disease or predation (exposure to 

environmental contaminants or 

environmental changes; and increases in 


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disease vectors as a result of short and 

long-term climate); (3) the inadequacy of 

existing regulatory mechanisms (the 

lack of reporting/observing of nearshore 

fisheries interactions; and the longline 

prohibited area not reversing the decline 

of the insular DPS); and (4) other natural 

or manmade factors affecting its 

continued existence (climate change; 

hooking, entanglement, or intentional 

harm by fishermen; small population 

size (reduced genetic diversity, 

inbreeding depression, and other Allee 

effects); and anthropogenic noise (sonar 

and seismic exploration)). See the 

‘‘Summary of Factors Affecting the 

Species’’ section above for a description 

of the specific risks associated with 

section 4(a)(1). 

In sum, future declines in insular 

population abundance may occur as a 

result of multiple threats, particularly 

those of small population size, and 

hooking, entanglement, or intentional 

harm by fishermen. Current trends and 

projections in abundance indicate that 

the Hawaiian insular false killer whale 

DPS is in danger of extinction 

throughout all of its range. Therefore, 

we propose to list the Hawaiian insular 

false killer whale DPS as endangered. 

Effects of Listing 

Conservation measures provided for 

species listed as endangered or 

threatened under the ESA include 

recovery actions (16 U.S.C. 1536(f)), 

Federal agency consultation 

requirements (16 U.S.C. 1536), critical 

habitat designations, and prohibitions 

on taking (16 U.S.C. 1538). Recognition 

of the species’ plight through listing 

promotes conservation actions by 

Federal and state agencies, foreign 

entities, private groups, and individuals. 

Should the proposed listing be made 

final, a recovery plan may be developed, 

unless such plan would not promote the 

conservation of the species. 

Identifying Section 7 Consultation 

Requirements 

Section 7(a)(2) of the ESA and NMFS/ 

FWS regulations require Federal 

agencies to confer with us on actions 

likely to jeopardize the continued 

existence of species proposed for listing, 

or that result in the destruction or 

adverse modification of proposed 

critical habitat. If a proposed species is 

ultimately listed, Federal agencies must 

consult on any action they authorize, 

fund, or carry out if those actions may 

affect the listed species or its critical 

habitat. Examples of Federal actions that 

may affect the Hawaiian insular false 

killer whale DPS include, but are not 

limited to: Alternative energy projects, 

discharge of pollution from point 

sources, non-point source pollution, 

contaminated waste and plastic 

disposal, dredging, pile-driving, water 

quality standards, vessel traffic, 

aquaculture facilities, military activities, 

and fisheries management practices. 

Critical Habitat 

Critical habitat is defined in section 3 

of the ESA as: ‘‘(i) The specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 1533 of this title, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of 1533 of this title, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species’’ (16 U.S.C. 1532(5)(A)). 

‘‘Conservation’’ means the use of all 

methods and procedures needed to 

bring the species to the point at which 

listing under the ESA is no longer 

necessary (16 U.S.C. 1532(3)). Section 

4(a)(3)(A) of the ESA requires that, to 

the maximum extent prudent and 

determinable, critical habitat be 

designated concurrently with the final 

listing of a species (16 U.S.C. 

1533(a)(3)(A)(i)). Designations of critical 

habitat must be based on the best 

scientific data available and must take 

into consideration the economic, 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat. 

Once critical habitat is designated, 

section 7 of the ESA requires Federal 

agencies to ensure that they do not fund, 

authorize, or carry out any actions that 

are likely to destroy or adversely modify 

that habitat. This requirement is in 

addition to the section 7 requirement 

that Federal agencies ensure that their 

actions do not jeopardize the continued 

existence of listed species. 

At this time, critical habitat is not 

determinable for the Hawaiian insular 

false killer whale DPS. We are currently 

compiling information to prepare a 

critical habitat proposal for the 

Hawaiian insular false killer whale DPS 

in a separate rulemaking. Therefore, we 

seek public input and information to 

assist in gathering and analyzing the 

best available scientific data to support 

a critical habitat designation. We will 

continue to meet with co-managers and 

other stakeholders to review this 

information and the overall designation 

process. We will then initiate 

rulemaking with the publication of a 

proposed designation of critical habitat 

in the Federal Register, opening a 

period for public comment and the 

opportunity for public hearings. 

Joint NMFS/FWS regulations for 

listing endangered and threatened 

species and designating critical habitat 

at 50 CFR 424.12(2)(b) state that the 

agency ‘‘shall consider those physical 

and biological features that are essential 

to the conservation of a given species 

and that may require special 

management considerations or 

protection.’’ Pursuant to the regulations, 

such requirements include, but are not 

limited to the following: (1) Space for 

individual and population growth, and 

for normal behavior; (2) food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and 

generally (5) habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. The 

regulations also state that the agency 

shall focus on the principal biological or 

physical essential features within the 

specific areas considered for 

designation. These essential features 

may include, but are not limited to: 

‘‘roost sites, nesting grounds, spawning 

sites, feeding sites, seasonal wetland or 

dryland, water quality or quantity, host 

species or plant pollinator, geological 

formation, vegetation type, tide, and 

specific soil types.’’ 

Take Prohibitions 

Because we are proposing to list this 

species as endangered, all of the take 

prohibitions of section 9(a)(1) of the 

ESA will apply. These include 

prohibitions against the import, export, 

use in foreign commerce, or ‘‘take’’ of the 

species. ‘‘Take’’ is defined under the 

ESA as ‘‘to harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect, or attempt to engage in any such 

conduct.’’ These prohibitions apply to 

all persons subject to the jurisdiction of 

the U.S., including in the U.S. or on the 

high seas. 

Role of Peer Review 

The intent of the peer review policy 

is to ensure that listings are based on the 

best scientific and commercial data 

available. In December 2004, the Office 

of Management and Budget (OMB) 

issued a Final Information Quality 

Bulletin for Peer Review establishing 

minimum peer review standards, a 

transparent process for public 

disclosure of peer review planning, and 

opportunities for public participation. 

The OMB Bulletin, implemented under 


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70186 Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 

the Information Quality Act (Pub. L. 

106–554), is intended to enhance the 

quality and credibility of the Federal 

government’s scientific information, and 

applies to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, the BRT obtained 

independent peer review of the draft 

status review report. Independent 

specialists were selected from the 

academic and scientific community, 

Federal and state agencies, and the 

private sector for this review. All peer 

reviewer comments were addressed 

prior to dissemination of the final status 

review report and publication of this 

proposed rule. 

On July 1, 1994, the NMFS and 

USFWS published a series of policies 

regarding listings under the ESA, 

including a policy for peer review of 

scientific data (59 FR 34270). The intent 

of the peer review policy is to ensure 

that listings are based on the best 

scientific and commercial data 

available. Prior to a final listing, NMFS 

will solicit the expert opinions of three 

qualified specialists selected from the 

academic and scientific community, 

Federal and state agencies, and the 

private sector on listing 

recommendations to ensure the best 

biological and commercial information 

is being used in the decisionmaking 

process, as well as to ensure that 

reviews by recognized experts are 

incorporated into the review process of 

rulemakings developed in accordance 

with the requirements of the ESA. 

Identification of Those Activities That 

Would Constitute a Violation of Section 

9 of the ESA 

The intent of identifying those 

activities that would constitute a 

violation of section 9 of the ESA is to 

increase public awareness of the effect 

of this listing on proposed and ongoing 

activities within the species’ range. We 

will identify, to the extent known at the 

time of the final rule, specific activities 

that will not be considered likely to 

result in violation of section 9, as well 

as activities that will be considered 

likely to result in violation. Activities 

that we currently believe could result in 

violation of section 9 prohibitions 

against ‘‘take’’ of the Hawaiian insular 

false killer whale DPS include, but are 

not limited to, the following: (1) 

Importation, (2) exportation, (3) take, (4) 

sale, and (5) delivery that directly or 

indirectly affect endangered species. 

These prohibitions apply to all 

individuals, organizations, and agencies 

subject to U.S. jurisdiction. 

Public Comments Solicited on Listing 

To ensure that the final action 

resulting from this proposal will be as 

accurate and effective as possible, we 

solicit comments and suggestions from 

the public, other governmental agencies, 

the scientific community, industry, 

environmental groups, and any other 

interested parties. Comments are 

encouraged on this proposal (See DATES

and ADDRESSES). Specifically, we are 

interested in information regarding: (1) 

Habitat within the range of the insular 

DPS that was present in the past, but 

may have been lost over time; (2) 

biological or other relevant data 

concerning any threats to the Hawaiian 

insular false killer whale DPS; (3) the 

range, distribution, and abundance of 

the insular DPS; (4) current or planned 

activities within the range of the insular 

DPS and their possible impact on this 

DPS; (5) recent observations or sampling 

of the insular DPS; and (6) efforts being 

made to protect the Hawaiian insular 

false killer whale DPS. 

Public Comments Solicited on Critical 

Habitat 

We request quantitative evaluations 

describing the quality and extent of 

habitats for the Hawaiian insular false 

killer whale DPS as well as information 

on areas that may qualify as critical 

habitat for the proposed DPS. Specific 

areas that include the physical and 

biological features essential to the 

conservation of the DPS, where such 

features may require special 

management considerations or 

protection, should be identified. We 

also solicit biological and economic 

information relevant to making a critical 

habitat designation for the insular DPS. 

ESA implementing regulations at 50 

CFR 424.12(h) specify that critical 

habitat shall not be designated within 

foreign countries or in other areas 

outside of U.S. jurisdiction. Therefore, 

we request information only on 

potential areas of critical habitat within 

the U.S. or waters within U.S. 

jurisdiction. 

Section 4(b)(2) of the ESA requires the 

Secretary to consider the ‘‘economic 

impact, impact on national security, and 

any other relevant impact,’’ of 

designating a particular area as critical 

habitat. For this process, section 4(b)(2) 

authorizes the Secretary to exclude from 

a critical habitat designation those 

particular areas where the Secretary 

finds that the benefits of exclusion 

outweigh the benefits of designation, 

unless excluding that area will result in 

extinction of the species. We seek 

information regarding the conservation 

benefits of designating areas within the 

main Hawaiian Islands as critical 

habitat. We also seek information on the 

economic and other benefits of 

excluding areas from the critical habitat 

designation, and the economic and 

other benefits of including an area as 

part of the critical habitat designation. 

In keeping with the guidance provided 

by the OMB (2000; 2003), we seek 

information that would allow us to 

monetize these effects to the extent 

possible, as well as information on 

qualitative impacts to economic values. 

We also seek information on impacts to 

national security and any other relevant 

impacts of designating critical habitat in 

these areas. 

Data reviewed may include, but are 

not limited to: (1) Scientific or 

commercial publications; (2) 

administrative reports, maps or other 

graphic materials; (3) information 

received from experts; and (4) 

comments from interested parties. 

Comments and data particularly are 

sought concerning: (1) Maps and 

specific information describing the 

amount, distribution, and use type (e.g., 

foraging or migration) of the Hawaiian 

insular false killer whale DPS, as well 

as any additional information on 

occupied and unoccupied habitat areas; 

(2) the reasons why any habitat should 

or should not be determined to be 

critical habitat as provided by sections 

3(5)(A) and 4(b)(2) of the ESA; (3) 

information regarding the benefits of 

designating particular areas as critical 

habitat; (4) current or planned activities 

in the areas that might be proposed for 

designation and their possible impacts; 

(5) any foreseeable economic or other 

potential impacts resulting from 

designation, and in particular, any 

impacts on small entities; (6) whether 

specific unoccupied areas may be 

essential to provide additional habitat 

areas for the conservation of this DPS; 

and (7) potential peer reviewers for a 

proposed critical habitat designation, 

including persons with biological and 

economic expertise relevant to the 

species, region, and designation of 

critical habitat. We seek information 

regarding critical habitat for the 

Hawaiian insular false killer whale DPS 

as soon as possible, but no later than 

February 15, 2011. 

Public Hearings 

50 CFR 424.16(c)(3) requires the 

Secretary to promptly hold at least one 

public hearing if any person requests 

one within 45 days of publication of a 

proposed rule to list a species. Such 

hearings provide the opportunity for 

interested individuals and parties to 

give opinions, exchange information, 

and engage in a constructive dialogue 


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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Proposed Rules 70187 

concerning this proposed rule. We 

encourage the public’s involvement in 

this matter and therefore have 

scheduled a public hearing to be held in 

Honolulu, Oahu, Hawaii. This public 

hearing will be held on January 20, 

2011, at the McCoy Pavilion at the Ala 

Moana Park, 1201 Ala Moana Blvd, 

Honolulu, HI 96814 from 6:30 to 9 p.m. 

NMFS will consider requests for 

additional public hearings that are made 

in writing and received (see ADDRESSES) 

by January 31, 2011. If additional public 

hearings are requested and will be held, 

details regarding location(s), date(s), and 

time(s) will be published in a 

forthcoming Federal Register notice. 

References 

A complete list of all references cited 

herein is available upon request (see FOR

FURTHER INFORMATION CONTACT). 

Classification 

National Environmental Policy Act 

The 1982 amendments to the ESA, in 

section 4(b)(1)(A), restrict the 

information that may be considered 

when assessing species for listing. Based 

on this limitation of criteria for a listing 

decision and the opinion in Pacific 

Legal Foundation v. Andrus, 657 F. 2d 

829 (6th Cir. 1981), we have concluded 

that ESA listing actions are not subject 

to the environmental assessment 

requirements of the National 

Environmental Policy Act (See NOAA 

Administrative Order 216–6). 

Executive Order 12866, Regulatory 

Flexibility Act, and Paperwork 

Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this 

proposed rule is exempt from review 

under Executive Order 12866. This 

proposed rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Executive Order 13132, Federalism 

In accordance with E.O. 13132, we 

determined that this proposed rule does 

not have significant Federalism effects 

and that a Federalism assessment is not 

required. In keeping with the intent of 

the Administration and Congress to 

provide continuing and meaningful 

dialogue on issues of mutual state and 

Federal interest, this proposed rule will 

be given to the relevant state agencies in 

each state in which the species is 

believed to occur, and those states will 

be invited to comment on this proposal. 

We have conferred with the state of 

Hawaii in the course of assessing the 

status of the Hawaiian insular false 

killer DPS, and considered, among other 

things, Federal, state, and local 

conservation measures. As we proceed, 

we intend to continue engaging in 

informal and formal contacts with the 

state, and other affected local or regional 

entities, giving careful consideration to 

all written and oral comments received. 

List of Subjects in 50 CFR Part 224 

Endangered marine and anadromous 

species. 

Dated: November 10, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 224 is proposed 

to be amended as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

1. The authority citation for part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq. 

§ 224.101 [Amended] 

2. In § 224.101, amend paragraph (b) 

by adding, ‘‘False killer whale 

(Pseudorca crassidens), Hawaiian 

insular distinct population segment’’ in 

alphabetical order. 

[FR Doc. 2010–28843 Filed 11–16–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 100804323–0544–01] 

RIN 0648–BA03 

Fisheries of the Northeastern United 

States; Atlantic Mackerel, Squid, and 

Butterfish Fisheries; Specifications 

and Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule, request for 

comments. 

SUMMARY: NMFS proposes 2011 

specifications and management 

measures for Atlantic mackerel, squid, 

and butterfish (MSB). This action 

proposes to modify the measure that 

transfers Loligo squid (Loligo) quota 

underages from Trimester I to 

Trimesters II and III by limiting the 

Trimester II quota increase to no more 

than 50 percent. This action also 

proposes to revise the 72-hr pre-trip 

observer notification requirement for the 

Loligo fishery to accommodate vessels 

departing for multiple day trips in a 

week. These proposed specifications 

and management measures promote the 

utilization and conservation of the MSB 

resource. 

DATES: Public comments must be 

received no later than 5 p.m., eastern 

standard time, on December 17, 2010. 

ADDRESSES: Copies of supporting 

documents used by the Mid-Atlantic 

Fishery Management Council (Council), 

including the Environmental 

Assessment (EA) and Regulatory Impact 

Review (RIR)/Initial Regulatory 

Flexibility Analysis (IRFA), are 

available from: Dr. Christopher M. 

Moore, Executive Director, Mid-Atlantic 

Fishery Management Council, Room 

2115, Federal Building, 300 South New 

Street, Dover, DE 19904–6790. The EA/ 

RIR/IRFA is accessible via the Internet 

at http://www.nero.noaa.gov. 

You may submit comments, identified 

by 0648–BA03, by any one of the 

following methods: 

Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking portal http:// 

www.regulations.gov; 

Fax: (978) 281–9135, Attn: Aja PetersMason; 

Mail to NMFS, Northeast Regional 

Office, 55 Great Republic Dr, 

Gloucester, MA 01930. Mark the 

outside of the envelope ‘‘Comments 

on 2011 MSB Specifications.’’ 

Instructions: No comments will be 

posted for public viewing until after the 

comment period has closed. All 

comments received are a part of the 

public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (for example, name, 

address, etc.) voluntarily submitted by 

the commenter may be publicly 

accessible. Do not submit Confidential 

Business Information or otherwise 

sensitive or protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 


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