Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae
Federal Register, Volume 80 Issue 76 (Tuesday, April 21, 2015)
Federal Register Volume 80, Number 76 (Tuesday, April 21, 2015)
Proposed Rules
Pages 22303-22356
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2015-09010
Page 22303
Vol. 80
Tuesday,
No. 76
April 21, 2015
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 224
Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Proposed Revision of Species-Wide Listing; Proposed Rule
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
Docket No. 130708594-5298-02 RIN 0648-XC751
Endangered and Threatened Species; Identification of 14 Distinct Population Segments of the Humpback Whale (Megaptera novaeangliae) and Proposed Revision of Species-Wide Listing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; 12-month findings.
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SUMMARY: We, NMFS, have completed a comprehensive status review of the humpback whale (Megaptera novaeangliae) under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.) and announce a proposal to revise the listing status of the species. We propose to divide the globally listed endangered species into 14 distinct population segments (DPSs), remove the current species-level listing, and in its place list 2 DPSs as endangered and 2 DPSs as threatened. The remaining 10 DPSs are not proposed for listing based on their current statuses. This proposal also constitutes a negative 12-month finding on a petition to delineate and ``delist'' a DPS of humpback whales spanning the entire North Pacific and a positive 12-month finding on a petition to delineate and ``delist'' a DPS in the Central North Pacific (Hawaii breeding population).
At this time, we do not propose to designate critical habitat for the two listed DPSs that occur in U.S. waters (Western North Pacific, Central America) because it is not currently determinable. In order to complete the critical habitat designation process, we also solicit information on essential physical and biological features of the habitat of these two DPSs.
DATES: Comments must be submitted to NMFS by July 20, 2015. For specific dates of the public hearings, see SUPPLEMENTARY INFORMATION. Requests for additional public hearings must be made in writing and received by June 5, 2015.
ADDRESSES: Four public hearings will be held, one each in Juneau, AK, Honolulu, HI, Plymouth, MA, and Virginia Beach, VA. For specific locations of these hearings, see SUPPLEMENTARY INFORMATION.
You may submit comments, identified by NOAA-NMFS-2015-0035, by any of the following methods:
Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal.
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Go to www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2015-0035,
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Click the ``Comment Now!'' icon, complete the required fields
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Enter or attach your comments.
--Or--
Mail: Submit written comments to Marta Nammack, NMFS, 1315 East-
West Highway, Room 13536, Silver Spring, MD 20910.
Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous).
The proposed rule, Status Review report and other materials relating to this proposal can be found on the NMFS Web site at: http://nmfs.noaa.gov/pr/.
FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, (301) 427-8469.
SUPPLEMENTARY INFORMATION: On August 12, 2009, we announced the initiation of a status review of the humpback whale to determine whether an endangered listing for the entire species was still appropriate (74 FR 40568). We sought information from the public to inform our review, hired two post-doctoral students to compile the best available scientific and commercial information on the species (Fleming and Jackson, 2011), including the past, present, and foreseeable future threats to this species, and appointed a Biological Review Team (BRT) to analyze that information, make conclusions on extinction risk, and prepare a status review report (Bettridge et al., 2015).
On April 16, 2013, we received a petition from the Hawaii Fishermen's Alliance for Conservation and Tradition, Inc., to classify the North Pacific humpback whale population as a DPS and ``delist'' the DPS under the Endangered Species Act (ESA). On February 26, 2014, the State of Alaska submitted a petition to delineate the Central North Pacific (Hawaii) stock of the humpback whale as a DPS and remove the DPS from the List of Endangered and Threatened Species under the ESA. After reviewing the petitions, the literature cited in the petitions, and other literature and information available in our files, we found that both petitioned actions may be warranted and issued positive 90-
day findings (78 FR 53391, August 29, 2013; 79 FR 36281, June 26, 2014). We extended the deadline for receiving information by 30 days to help us respond to the petition to delist the Central North Pacific population (79 FR 40054; July 11, 2014). We incorporated the consideration of both petitioned actions into the status review.
Based on information presented in the status review report, an assessment of the ESA section 4(a)(1) factors, and efforts being made to protect the species, we have determined: (1) 14 populations of the humpback whale meet the DPS policy criteria and are therefore considered to be DPSs; (2) the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs are in danger of extinction throughout their ranges; (3) the Western North Pacific and Central America DPSs are likely to become endangered throughout all of their ranges in the foreseeable future; and (4) the West Indies, Hawaii, Mexico, Brazil, Gabon/
Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs are not in danger of extinction throughout all or a significant portion of their ranges or likely to become so in the foreseeable future. Accordingly, we issue a proposed rule to revise the species-wide listing of the humpback whale by replacing it with 2 endangered species listings (Cape Verde Islands/
Northwest Africa and Arabian Sea DPSs) and 2 threatened species listings (Western North Pacific and Central America DPSs). We solicit comments on these proposed actions. We also propose to extend the ESA section 9 prohibitions to the 2 threatened DPSs.
Outline
ESA Statutory Provisions, Regulations, and Policy Considerations
Distinct Population Segment Policy
``Foreseeable Future''
``Significant Portion of its Range''
Background
Behavior
Feeding
Reproduction
Natural Mortality
Status Review Report
Humpback Whale Subspecies
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Reproductive Seasonality
Behavior
Color patterns
Genetics
Subspecies Discussion and Conclusions
Distinct Population Segment Analysis, By Subspecies
North Atlantic
Overview
Discreteness
Significance
North Pacific
Overview
Discreteness
Significance
Southern Hemisphere
Overview:
Discreteness
Significance
Extinction Risk Assessment
Abundance and Trends for Each DPS
West Indies DPS
Cape Verde Islands/Northwest Africa DPS
Western North Pacific DPS
Hawaii DPS
Mexico DPS
Central America DPS
Brazil DPS
Gabon/Southwest Africa DPS
Southeast Africa/Madagascar DPS
West Australia DPS
East Australia DPS
Oceania DPS
Southeastern Pacific DPS
Arabian Sea DPS
Summary of Abundance and Trends
Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale DPSs
Section 4(a)(1) Factors Applicable to All DPSs
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes:
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
West Indies DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Cape Verde Islands/Northwest Africa DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Western North Pacific DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Hawaii DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Mexico DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Central America DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Brazil DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Gabon/Southwest Africa DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Southeast Africa/Madagascar DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
West Australia DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
East Australia DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Oceania DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Southeastern Pacific DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Arabian Sea DPS
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The present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
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Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
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Disease or Predation
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Inadequacy of Existing Regulatory Mechanisms
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Other Natural or Manmade Factors Affecting its Continued Existence
Ongoing Conservation Efforts
Rationale for Revising the Current Global Listing and Replacing It with Listings of DPSs
Conclusions on the Status of Each DPS under the ESA
Endangered DPSs
Threatened DPSs
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DPSs Not Warranted for Listing under the ESA
Post-delisting Monitoring Plan
Description of Proposed Regulatory Changes
Prohibitions and Protective Measures
Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA
Effects of this Rulemaking
Peer Review
Critical Habitat
Public Comments Solicited
Public Hearings
Classification
National Environmental Policy Act (NEPA)
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork Reduction Act
E.O. 13132, Federalism
E.O. 13175, Consultation and Coordination with Indian Tribal Governments
ESA Statutory Provisions, Regulations, and Policy Considerations
Pursuant to the ESA, any interested person may petition to list or delist a species, subspecies, or DPS of a vertebrate species that interbreeds when mature (5 U.S.C. 553(e), 16 U.S.C. 1533(b)(3)(A)). ESA-implementing regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS) also establish procedures for receiving and considering petitions to revise the lists of endangered and threatened species and for conducting periodic reviews of listed species (50 CFR 424.01).
Once we receive a petition to delist a species, the ESA requires the Secretary of Commerce (Secretary) to make a finding on whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted (16 U.S.C. 1533(b)(3)(A)). In the context of a petition to delist a species, the ESA-implementing regulations provide that ``substantial information'' is that amount of information that would lead a reasonable person to believe that delisting may be warranted (50 CFR 424.14(b)(1)). In determining whether substantial information exists, we take into account several factors, in light of any information noted in the petition or otherwise readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)) and published promptly in the Federal Register. Section 4(b)(3)(B) of the ESA requires that, when a petition to revise the List of Endangered and Threatened Wildlife and Plants is found to present substantial scientific and commercial information, we make a finding that the petitioned action is (a) not warranted, (b) warranted, or (c) warranted but precluded from immediate proposal by other pending proposals of higher priority. This finding (the ``12-month finding'') is to be made within 1 year of the date the petition was received, and the finding is to be published promptly in the Federal Register. The Secretary has delegated the authority for these actions to the NOAA Assistant Administrator for Fisheries.
Section 3 of the ESA defines an endangered species as ``any species which is in danger of extinction throughout all or a significant portion of its range'' and a threatened species as one ``which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.'' Thus, we interpret an ``endangered species'' to be one that is presently in danger of extinction. A ``threatened species,'' on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened). In determining whether to reclassify or delist a species, subspecies, or DPS, the ESA and implementing regulations require that we consider the following ESA section 4(a)(1) factors in relation to the definitions of ``endangered species'' or ``threatened species'' (16 U.S.C. 1533(a)(1) and 1533(c)(2); 50 CFR 424.11(d)): The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization of the species for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting a species' continued existence. These are the same factors that we must consider when making an initial determination whether to list a species, subspecies, or DPS as threatened or endangered under the ESA.
Section 4(b)(1)(A) of the ESA requires us to make listing determinations 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 efforts being made by any State or foreign nation or political subdivision thereof to protect the species. In evaluating the efficacy of protective efforts not yet implemented or not yet proven to be effective, we rely on the Policy on Evaluation of Conservation Efforts When Making Listing Decisions (``PECE''; 68 FR 15100; March 28, 2003) issued jointly by NMFS and the FWS (together, the Services). The ESA regulations require that a species listed as endangered or threatened be removed from the list if the best scientific or commercial data available indicate that the species is no longer endangered or threatened because it has recovered (50 CFR 424.11(d)).
Distinct Population Segment Policy
To be considered for listing under the ESA, a group of organisms must constitute a ``species,'' which the ESA defines to include ``. . . any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature'' (16 U.S.C. 1532 (16)). Thus, an ESA listing (or delisting) determination can address a species, subspecies, or a DPS of a vertebrate species.
On February 7, 1996, the Services adopted a policy describing what constitutes a DPS of a taxonomic species (61 FR 4722). The joint DPS policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) 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.
(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 considered discrete under one or more of the above conditions, its biological and ecological significance is then considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSs be used ``sparingly'' while encouraging the conservation of genetic diversity. This consideration may include, but is not limited to, the following:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon;
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;
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(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; or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
``Foreseeable Future''
To determine whether listing of a species is warranted, a status review must conclude that the species is ``in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range.'' The ESA uses the term ``foreseeable future'' to refer to the time over which identified threats are likely to impact the biological status of the species. The duration of the ``foreseeable future'' in any circumstance is inherently fact-specific and depends on the particular kinds of threats, the life-history characteristics, and the specific habitat requirements for the species under consideration. The existence of a threat to a species and the species' response to that threat are not, in general, equally predictable or foreseeable. Hence, in some cases, the ability to foresee a threat to a species is greater than the ability to foresee the species' exact response, or the timeframe of such a response, to that threat. For purposes of making these 12-month findings, the relevant consideration is whether the species' population response (i.e., abundance, productivity, spatial distribution, diversity) is foreseeable, not merely whether the emergence of a threat is foreseeable. The foreseeable future extends only as far as we are able to reliably predict the species' population response to a particular threat. We consider the extent to which we can foresee the species' response to each threat.
``Significant Portion of its Range''
NMFS and FWS recently published a final policy to clarify the interpretation of the phrase ``significant portion of the range'' in the ESA definitions of ``threatened species'' and ``endangered species'' (79 FR 37577; July 1, 2014) (Final Policy). The Final Policy reads:
Consequences of a species being endangered or threatened throughout a significant portion of its range: The phrase ``significant portion of its range'' in the Act's definitions of ``endangered species'' and ``threatened species'' provides an independent basis for listing. Thus, there are two situations (or factual bases) under which a species would qualify for listing: A species may be endangered or threatened throughout all of its range or a species may be endangered or threatened throughout only a significant portion of its range.
If a species is found to be endangered or threatened throughout only a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found.
Significant: A portion of the range of a species is ``significant'' if the species is not currently endangered or threatened throughout its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.
Range: The range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (e.g., seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but it cannot constitute a significant portion of a species' range.
Reconciling SPR with DPS authority: If the species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.
The Final Policy explains that it is necessary to fully evaluate a portion for potential listing under the ``significant portion of its range'' authority only if substantial information indicates that the members of the species in a particular area are likely both to meet the test for biological significance and to be currently endangered or threatened in that area. Making this preliminary determination triggers a need for further review, but does not prejudge whether the portion actually meets these standards such that the species should be listed:
To identify only those portions that warrant further consideration, we will determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range--rather, it is a step in determining whether a more detailed analysis of the issue is required.
79 FR 37586.
Thus, the preliminary determination that a portion may be both significant and endangered or threatened merely requires NMFS to engage in a more detailed analysis to determine whether the standards are actually met. Id. at 37587. Unless both are met, listing is not warranted. The Final Policy explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question. Id. (``If we determine that a portion of the range is not ``significant,'' we will not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we will not need to determine if that portion was ``significant.''). Thus, if the answer to the first question is negative--whether in regard to the significance question or the status question--then the analysis concludes and listing is not warranted.
Background
The humpback whale (Megaptera novaeangliae) was listed as endangered in 1970 under the Endangered Species Conservation Act of 1969, the precursor to the ESA. When the ESA was enacted in 1973, the humpback whale was transferred to the List of Endangered and Threatened Wildlife and Plants, retaining endangered status, and, because of its endangered ESA status, was considered ``depleted'' under the Marine Mammal Protection Act (MMPA). NMFS issued a recovery plan for the humpback whale in 1991, and its long-term numerical goal was to increase humpback whale populations to at least 60 percent of the number existing before commercial exploitation or of current environmental carrying capacity. The recovery team recognized that those levels could not then be determined, so in the meantime, the interim goal of the recovery plan was to double the population size of extant populations within the next 20 years (http://www.nmfs.noaa.gov/pr/pdfs/recovery/whale_humpback.pdf). In fact, the historical size of humpback whale populations continues to be uncertain (Ruegg et al., 2013, and references therein; Bettridge et al., 2015).
The taxonomy, life history, and ecology of the humpback whale are thoroughly reviewed in Fleming and Jackson (2011) and summarized in the BRT's status review report (Bettridge et al., 2015; available at http://www.nmfs.noaa.gov/pr/species/statusreviews.htm). The humpback whale is a large baleen whale of the
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family Balaenopteridae. It is found around the world in all oceans. The humpback whale has long pectoral flippers, distinct ventral fluke patterning, dark dorsal coloration, a highly varied acoustic call (termed `song'), and a diverse repertoire of surface behaviors.
Its body coloration is primarily dark grey, but individuals have a variable amount of white on their pectoral fins, flukes, and belly. This variation is so distinctive that the pigmentation pattern on the undersides of their flukes is used to identify individual whales. Coloring of the ventral surface varies from white to marbled to fully black. Dorsal surfaces of humpback whale pectoral flippers are typically white in the North Atlantic and black in the North Pacific (Perrin et al., 2002), and the flippers are about one-third of the total body length. Similar to all baleen whales, body lengths differ between the sexes, with adult females being approximately 1-1.5m longer than males. The humpback whale reaches a maximum of 16-17 m, although lengths of 14-15 m are more typical. Adult body weights in excess of 40 tons make them one of the largest mammals on earth (Ohsumi, 1966).
With one exception, humpback whales are highly migratory, spending spring, summer, and fall feeding in temperate or high-latitude areas of the North Atlantic, North Pacific, and Southern Ocean and migrating to the tropics in winter to breed and calve. The Arabian Sea humpback whale population does not migrate extensively, remaining in tropical waters year-round (Baldwin, 2000; Minton et al., 2010b).
There are 14 known breeding grounds for humpback whales, and there may be other breeding grounds of unknown location. Whales using the unknown breeding grounds may be associated to some degree with whales from the known breeding grounds.
Whales from all known breeding grounds except the Arabian Sea migrate to summer feeding areas. Humpback whales have high site fidelity to both the winter breeding grounds and summer feeding grounds. Whales from a single breeding ground may migrate to different feeding grounds. In addition, feeding grounds may host whales from different breeding grounds. Because humpback whales can be individually identified through unique fluke patterns, researchers are able to match photos of whales on breeding grounds and feeding grounds, thereby tracing their migrations.
Although the patterns of migration and distribution are clear for many breeding groups, researchers have identified whales on some feeding grounds that have never been sighted in any of the known breeding grounds. Depending on the strength of the evidence, scientists may infer that an additional breeding population exists but that its breeding grounds are unknown. We explore this subject further in the ``Distinct Population Segment Analysis, By Subspecies'' section below.
Behavior
Humpback whales travel great distances during migration, the farthest migration of any mammal. The longest recorded migration between a breeding area and a feeding area was 5,160 miles (8,300 km). This trek from Costa Rica to Antarctica was completed by seven individuals, including a calf (Rasmussen et al., 2007). One of the more closely studied routes has shown whales making the 3,000-mile (4,830 km) trip between Alaska and Hawaii in as little as 36 days (Allen and Angliss, 2010).
During summer and fall, humpback whales spend much of their time feeding and building fat stores for winter. In their low-latitude wintering grounds, humpback whales congregate and are believed to engage in mating and other social activities. Humpback whales are generally polygynous, with males exhibiting competitive behavior on wintering grounds (Tyack, 1981; Baker and Herman, 1984; Clapham, 1996). A complex behavioral repertoire exhibited in these areas can include aggressive and antagonistic behavior, such as chasing, vocal and bubble displays, horizontal tail thrashing, and rear body thrashing. Males within these groups also make physical contact, striking or surfacing on top of one another.
Also on wintering grounds, males sing complex songs that can last up to 20 minutes and may be heard up to 20 miles (30 km) away (Clapham and Mattila, 1990; Cato, 1991). A male may sing for hours, repeating the song numerous times. All males in a population sing the same song, but that song continually evolves over time (Darling and Sousa-Lima, 2005). Humpback whale singing has been studied for decades, but its function remains in dispute.
Humpback whales are a favorite of whale watchers, as the species frequently performs aerial displays, including breaching, lobtailing, and flipper slapping, the purposes of which are not well understood. Diving behavior varies by season, with average lengths of dives ranging from ST or related statistics; FST is a measure of the genetic distance between populations, or difference in the allele frequency between two populations.
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Subspecies Discussion and Conclusions
The BRT considered the possibility that humpback whales from different ocean basins might reasonably be considered to belong to different subspecies. Sub-specific taxonomy is relevant to the identification of DPSs because, under the 1996 DPS policy, the discreteness and significance of a potential DPS is evaluated with reference to the taxon (species or subspecies) to which it belongs. In some cases previous BRTs have determined that sub-specific taxonomy has a large influence on DPS structure (e.g., southern resident killer whales--Krahn et al., 2004a)), while in other cases sub-specific taxonomy has not been relevant (e.g., steelhead trout DPS--Busby et al., 1996).
Rice (1998) reviewed previous subspecies designations for humpback whales. Tomilin (1946) named a Southern Hemisphere subspecies (M. n. lalandii) based on body length, but this length difference was not substantiated in subsequent studies. The populations around Australia and New Zealand were described as another subspecies (M. n. novazelandiae) based on color patterns and length (Ivashin, 1958). Rice (1998) noted that the statistical ability to classify these proposed subspecies is ``not quite as high as is customarily required for division into subspecies'' and that genetic analyses using restriction-
fragment length polymorphisms is not congruent with the proposed regional division. Rice (1998) therefore recommended that Megaptera novaeangliae be considered monotypic. As was summarized above, however, since 1998, additional information has accumulated on the genetic distinctiveness of different geographic populations of humpback whales, and some new subspecies have been proposed (Jackson et al., 2014).
One criterion for separation of subspecies is the ability to differentiate 75 percent of individuals found in different geographic regions (Reeves et al., 2004). Based on this criterion, differences in the calendar timing of mating and reproduction could be used to distinguish close to 100 percent of Northern Hemisphere from Southern Hemisphere individuals, but it is not known if this is genetically determined. Based on mtDNA haplotypes that have been identified to date, haplotype could be used to distinguish 100 percent of North Pacific from North Atlantic individuals, but some haplotypes from both ocean basins are shared with the Southern Ocean. Ventral fluke color patterns can be used to correctly differentiate >80 percent of whales in eastern and western Australia from the whales in the North Pacific (Rosenbaum et al., 1995).
The BRT also considered the advice of the Committee on Taxonomy of the Society for Marine Mammalogy (SMM). The BRT asked the Committee: ``Are humpback whales (Megaptera novaeangliae) that feed in the North Atlantic, North Pacific, Southern Oceans and Arabian Sea likely to belong to different sub-species?'' The SMM was asked only for its scientific opinion on the likelihood of the existence of humpback whale subspecies and was not asked to comment on the relevance of their opinion to the identification of DPSs for humpback whales. The SMM chairman summarized responses from members of the SMM:
The balance of opinion in the SMM Committee on Taxonomy is that given the evidence on genetics, morphology, distribution and behavior, if a taxonomic revision of the humpback whale were undertaken, it is likely that the North Atlantic, North Pacific and Southern Hemisphere populations would be accorded subspecific status. Whether the Arabian Sea population would merit recognition as a subspecies separate from the Southern Hemisphere whales, with which it is most closely related genetically, is less certain. However, it is clearly geographically isolated and genetically differentiated.
Using its structured decision making process (whereby each BRT member distributed 100 likelihood points among different scenarios), the BRT considered the likelihood of a single global species with no subspecies scenario, a three-subspecies scenario (North Atlantic, North Pacific, and Southern
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Hemisphere), and a four-subspecies scenario (North Atlantic, North Pacific, Southern Hemisphere, and Arabian Sea). The BRT's allocation of likelihood points indicates that in the opinion of the BRT, the most likely scenario is the 3-subspecies scenario.
In October 2014, after the BRT report was completed, the SMM updated its species and subspecies list to recognize the North Atlantic, North Pacific, and Southern Hemisphere humpback whale populations as subspecies: Megaptera novaeangliae kuzira (North Pacific), M. n. novaeangliae (North Atlantic) and M. n. australis (Southern Hemisphere) (http://www.marinemammalscience.org/index.php?option=com_content&view=article&id=758&Itemid=340). This update was based on mtDNA and DNA relationships and distribution, as described in Jackson et al. (2014). We therefore consider whether the various humpback whale population segments identified by the BRT satisfy the DPS criteria of discreteness and significance relative to the subspecies to which they each belong: North Atlantic, North Pacific, and Southern Hemisphere subspecies.
Distinct Population Segment Analysis, By Subspecies
North Atlantic
Overview
In the Northern Hemisphere, humpback whales summer in the biologically productive, northern latitudes and travel south to warmer waters in winter to mate and calve. Migratory routes and migratory behavior are likely to be maternally directed (Martin et al., 1984; Baker et al., 1990). Feeding areas are often near or over the continental shelf and are associated with cooler temperatures and oceanographic or topographic features that serve to aggregate prey (Moore et al., 2002; Zerbini et al., 2006a).
Primary humpback whale feeding areas in the North Atlantic Ocean range from 42deg to 78degN and include waters around Iceland, Norway, and the Barents Sea in the central and eastern North Atlantic Ocean, and western Greenland, Newfoundland, Labrador, the Gulf of St. Lawrence and the Gulf of Maine in the western North Atlantic Ocean. Known breeding areas occur in the West Indies and, to a much lesser extent, around the Cape Verde Islands (Katona and Beard, 1990; Clapham, 1993; Palsboslashll et al., 1997). A relatively small proportion of whales in the North Atlantic Ocean feed in U.S. waters. The predominant breeding and calving area lies in the territorial sea of the Dominican Republic, although whales are also found scattered throughout the rest of the Antilles and coastal waters of Venezuela. The Silver/Navidad/
Mouchoir Bank complex hosts the largest single breeding aggregation of humpback whales in the West Indies.
Recently, a few humpback whales have also been found in the Mediterranean Sea but little is known about humpback whale use of this region and there is no evidence of a large humpback whale presence there, either currently or in historical times (Frantzis et al., 2004). There are also sporadic sightings of humpback whales in a wide range of places, including waters offshore from the mid-Atlantic and Southeast United States, in the Gulf of Mexico, and in the waters around Ireland. Bermuda is a known mid-ocean stopover point for humpback whales on their northbound migration (Stone et al., 1987).
Discreteness
Genetic studies have identified 25 humpback whale haplotypes in the western North Atlantic, 12 haplotypes in eastern North Atlantic samples, and 19 haplotypes in whales that feed during the summer in the Gulf of Maine (Palsboslashll et al., 1995; Larsen, 1996a; Rosenbaum et al., 2002). Humpback whales in the North Atlantic Ocean appear to have higher haplotype diversity than humpback whales in the North Pacific Ocean (Baker and Medrano-Gonzaacutelez, 2002). Haplotype diversity is lowest in populations around Norway and Iceland and higher around the northwestern feeding areas off Greenland, Gulf of St. Lawrence and Gulf of Maine (Baker and Medrano-Gonzaacutelez, 2002). Observed nucleotide diversity is also higher in the North Atlantic than in the North Pacific (Baker and Medrano-Gonzaacutelez, 2002).
Whales that breed in the West Indies and Cape Verde Islands co-
mingle in North Atlantic feeding areas. Palsboll et al. (1995) and Valsecchi et al. (1997) found significant (FST= ~0.04) levels of mtDNA and nuclear genetic variation among North Atlantic feeding areas, suggesting there are genetically distinct breeding areas (there are no published genetic studies directly comparing whales in the West Indies breeding areas with whales in the Cape Verde Islands breeding areas). Photo-ID and genetic matching data suggest no evidence for substructure within the West Indies breeding population (reviewed by Fleming and Jackson (2011)), so this differentiation likely is due to genetic divergence between the West Indies and another North Atlantic breeding population, likely associated with the Cape Verde Islands or possibly other areas in the Northeastern Atlantic.
Most of the humpback whales on the western North Atlantic feeding grounds (Gulf of Maine, Gulf of St. Lawrence, West Greenland, and eastern Canada) come from the well-studied West Indies breeding ground (approximately 90 percent) (Clapham et al., 1993; Mattila et al., 2001). Some of the whales from the Iceland and Norway feeding grounds also come from the West Indies breeding grounds, but genetic evidence suggests that most whales from the Iceland and Norway feeding grounds migrate from some other breeding ground. The location of possible breeding grounds of these whales is not well understood, but Clapham et al. (1993) suggest it may be in the eastern tropical Atlantic Ocean. Sighting histories of the Cape Verde Islands whales link them to feeding grounds in the waters off Iceland or Norway (Katona and Beard, 1990; Jann et al., 2003), and the Cape Verde Islands is the only candidate breeding ground from historical whaling records. However, current studies show only a small number of whales in the Cape Verde Islands--far fewer than the non-West Indies whales known to exist in the northeastern Atlantic. The Cape Verde Islands may therefore be part of a larger breeding area, or there may be a third separate breeding area that is as yet undiscovered (Charif et al., 2001; Reeves et al., 2002). The possibility of a third breeding area unassociated with the Cape Verde Islands is supported by nuclear DNA, as there is a significant degree of heterogeneity in nuclear DNA among populations in the western, central (Iceland) and eastern (Norway) North Atlantic feeding grounds (Larsen, 1996b).
The BRT concluded there are two populations of humpback whales in the North Atlantic Ocean meeting the discreteness criteria under the DPS policy--one with breeding grounds in the West Indies and another with breeding grounds near Cape Verde Islands and a possible associated breeding area, likely off Northwest Africa. In particular, whales from the West Indies and the Cape Verde Islands breeding grounds are discrete based on: (1) No photographic matches between individuals using the West Indies and Cape Verde Islands areas (acknowledging that there is a large sample size for the West Indies breeding grounds and a small sample size for the Cape Verde Islands breeding grounds); (2) occupation of both breeding grounds at the same time; (3) evidence from 19th century whaling data of a historically larger population at the Cape Verde Islands than exists today; and (4) genetic
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heterogeneity in the feeding grounds indicating that the West Indies is not the only breeding ground. Because the Cape Verde Islands cannot account for the abundance of whales estimated from the eastern North Atlantic feeding grounds that are not documented using the West Indies, there must be an additional breeding area, likely near Northwest Africa, and possibly associated with the Cape Verde Islands.
Significance
The West Indies breeding ground includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, with the Silver/Navidad/
Mouchoir Bank complex comprising a major breeding ground. Whales from this breeding ground have a feeding range that primarily includes the Gulf of Maine, eastern Canada, and western Greenland. While many West Indies whales also use feeding grounds in the central North Atlantic (Iceland) and eastern North Atlantic (Norway), many whales from these feeding areas appear to winter in another location.
The BRT concluded this discrete group of whales is significant to the North Atlantic subspecies due to the significant gap in the breeding range that would occur if it were extirpated. Loss of the West Indies population would result in the loss of humpback whales from all of the western North Atlantic breeding grounds (Caribbean/West Indies) and feeding grounds (United States, Canada, Greenland).
The Cape Verde Islands/Northwest Africa breeding grounds include waters surrounding the Cape Verde Islands as well as an undetermined breeding area in the eastern tropical Atlantic, which may be more geographically diffuse than the West Indies breeding ground. The population of whales breeding in Cape Verde Islands plus this unknown area likely represents the remnants of a historically larger population breeding around Cape Verde Islands and Northwest Africa (Reeves et al., 2002). There is no known overlap in breeding range with North Atlantic humpback whales that breed in the West Indies. As noted above, the BRT determined the population was discrete from the West Indies population based upon genetic evidence that suggests a second breeding ground occupied by whales that feed primarily off Norway and Iceland. It also determined that this population was significant to the North Atlantic subspecies because of the gap that would exist in the breeding range if it were extirpated.
We agree with the BRT and we therefore identify two DPSs of the North Atlantic humpback whale subspecies: (1) West Indies DPS; and (2) Cape Verde Islands/Northwest Africa DPS.
North Pacific
Overview
Humpback whales in the North Pacific migrate seasonally from northern latitude feeding areas in summer to low-latitude breeding areas in winter. Feeding areas are dispersed across the Pacific Rim from California, United States, to Hokkaido, Japan. Within these regions, humpback whales have been observed to spend the majority of their time feeding in coastal waters. Breeding areas in the North Pacific are more geographically separated than the feeding areas and include: (1) Regions offshore of mainland Central America; (2) mainland, Baja Peninsula and the Revillagigedos Islands, Mexico; (3) Hawaii; and (4) Asia including Ogasawara and Okinawa Islands and the Philippines. About half of the humpback whales in the North Pacific Ocean breed and calve in the U.S. waters off Hawaii; more than half of North Pacific Ocean humpback whales feed in U.S. waters.
Humpback whales in the North Pacific rarely move between these breeding regions. Strong fidelity to both feeding and breeding sites has been observed, but movements between feeding and breeding areas are complex and varied (Calambokidis et al., 2008). An overall pattern of migration has recently emerged. Asia and Mexico/Central America are the dominant breeding areas for humpback whales that migrate to feeding areas in lower latitudes and more coastal areas on each side of the Pacific Ocean, such as California and Russia. The Revillagigedo Archipelago and Hawaiian Islands are the primary winter migratory destinations for humpback whales that feed in the more central and higher latitude areas (Calambokidis et al., 2008). However, there are exceptions to this pattern, and it seems that complex population structure and strong site fidelity coexist with lesser known, but potentially high, levels of plasticity in the movements of humpback whales (Salden et al., 1999).
Discreteness
Baker et al. (2013) recently analyzed genetic variation in a large (n = 2,193) sample of whales from 8 breeding and 10 feeding regions within the North Pacific. The 8 possible breeding regions included the Philippines, Okinawa, Ogasawara, Hawaii, Revillagigedo, Baja California, the Mexican mainland coast, and Central America. In addition, results from Calambokidis et al. (2008) indicate the existence of at least one additional breeding area whose location has not been identified. Overall, the level of genetic divergence among breeding areas at the mtDNA control region was substantial (FST = 0.093). Pairwise estimates of divergence among breeding areas ranged from none (FST = ~0.000; Philippines vs Okinawa) to very high (FST > 0.2 for Hawaii versus Okinawa and Philippines, and Hawaii versus Central America). In addition to little divergence between Okinawa and the Philippines, the three Mexican areas (mainland coast, Baja California, and Revillagigedos Islands) were not significantly differentiated. In contrast to the mtDNA variation, the breeding areas were less strongly (but still significantly) differentiated at 10 nuclear microsatellite loci (FST = 0.006), suggesting the possibility of some male mediated gene flow among breeding areas. After application of an adjustment for diversity (Hedrick, 2005; Baker et al., 2013), the effect size increased to F'ST = 0.0128 and F'ST = 0.0214 for feeding and breeding grounds, respectively. Of these nine areas, two are likely migratory routes to other locations and might therefore not be primary breeding grounds: the waters off Baja California and the Ogasawara Islands.
Similarly, some humpback whales migrating to the Okinawa Islands pass by the Ogasawara Islands, and the Ogasawara Islands are also thought likely to be along the migration route to the unidentified breeding area that was described in Calambokidis et al. (2008). Because of the existence of an unidentified breeding area, the population structure of the western North Pacific populations proved more challenging. Humpback whales in Okinawa were not significantly different in either mtDNA or nDNA from whales in the Philippines (Baker et al., 2013). Mitochondrial DNA and nDNA markers from the pooled populations from Okinawa and the Philippines populations differ significantly from those of humpback whales in the Ogasawara Islands and all other populations (Baker et al., 2013). However, given the likelihood that Ogasawara whales are only passing through en route to two or more migratory destinations, the BRT members concluded that there are likely two discrete populations consisting of an Okinawa/
Philippines population and an unknown breeding group, both using the Ogasawara area as a migratory corridor. Given the uncertainty about the location of the other breeding ground, and the use of a common migratory corridor by the known group
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and the unknown group, we have decided to include the unknown breeding group in the Okinawa/Philippines population. We refer to this combined discrete population as the Western North Pacific population.
The Hawaii population of humpback whales is separated by the greatest geographic distance from neighboring populations and was significantly different from other populations in both frequencies of mtDNA haplotypes and nDNA (microsatellite) alleles (Baker et al., 2013). The BRT therefore concluded that whales wintering in Hawaii constitute a discrete population.
In Mexico, available genetic and demographic studies indicate that humpback whales migrating to mainland Mexico and to the Revillagigedos Islands pass by the tip of Baja California. The BRT therefore concluded that humpback whales off Baja California should not be considered a discrete population. Further, the mainland population in Mexico does not differ significantly from the Revillagigedos population in its mtDNA haplotype frequencies (Baker et al., 2013). Photo-identification studies also indicate considerable movement of individuals between mainland and offshore island breeding areas in Mexico (Calambokidis et al., 2008). The BRT therefore concluded that mainland Mexico and the Revillagigedos populations are a single Mexico population discrete from all other populations.
In the eastern North Pacific, humpback whales in Central America have a unique mtDNA signature, as reflected in the frequencies of haplotypes (Baker et al., 2008a; Baker et al., 2008b). This frequency composition is significantly different from that in whales from all other breeding grounds in the North Pacific. The BRT concluded that humpback whales in Central America are a discrete population.
Thus while the BRT concluded there are five breeding populations of humpback whales in the North Pacific that meet the criteria for being discrete under the DPS Policy guidelines, we propose to identify four: (1) Western North Pacific (includes Okinawa/Philippines and the unidentified breeding area in the western North Pacific); (2) Hawaii (3) Mexico (includes mainland Mexico and the Revillagigedos Islands); and (4) Central America.
Significance
In evaluating whether any discrete population differed in its ecological characteristics from others, the BRT weighted ecological differences among feeding areas more heavily than among breeding areas, since it concluded that the ecological characteristics of humpback whales in their breeding ranges were largely similar among populations. In contrast, the BRT concluded whales largely foraging in different large marine ecosystems inhabit different ecological settings and that this is relevant in evaluating the significance of these populations. The BRT stated that, within the North Pacific, the Okinawa/Philippines, Hawaii, Mexico, and Central America populations tend to feed in different marine ecosystems, although there is some overlap. The Western North Pacific population, which feeds in the Western Bering Sea (the Okinawa/Philippines population) and the Aleutian Islands (the unidentified breeding population), feeds in an ecosystem entirely different from the others in the North Pacific. The BRT also noted that the Central America population's breeding habitat is ecologically unique for the species as it is the only area where documented geographic overlap of populations that feed in different hemispheres occurs, potentially creating a conduit for genetic exchange between the two hemispheres. While a minority of members believed that this was an example of temporal and geographic overlap rather than a unique ecological setting, we conclude that the Central America population is significant to the ocean-basin based North Pacific subspecies because of its ecologically unique breeding habitat. We agree with the BRT that the Western North Pacific and Central America populations occupy unique ecological settings (unique breeding and feeding grounds for the Western North Pacific, unique breeding habitat for the Central America population), and therefore, they both are significant to the North Pacific subspecies.
The BRT noted that in the North Pacific Ocean, loss of the Okinawa/
Philippines population would likely result in a significant gap in the North Pacific feeding range as these individuals are the only breeding population to migrate primarily to Russia, and loss of this population would therefore result in a loss of feeding range along the Russian coast. We concur with this conclusion, but because we have combined the unknown breeding group that feeds in the Aleutian Islands with the Okinawa/Philippines population, we need to assess whether this combined Western North Pacific population is significant to the ocean-basin based North Pacific subspecies. We conclude that the loss of the Western North Pacific population would result in a significant gap in the range of the North Pacific subspecies because if loss of the Okinawa/Philippines population would result in a significant gap, then the loss of a larger combined population would, too. The loss of humpback whales from the Hawaii breeding population would result in loss of humpbacks from the Hawaiian Islands, and this would represent a significant gap in the range of the North Pacific subspecies. We conclude that the Western North Pacific and the Hawaii populations both meet the significance criterion of the DPS Policy because loss of these populations would result in a significant gap in the range of the North Pacific subspecies. While the loss of the Mexico or Central America populations would not result in a significant gap in the range of their feeding grounds because their feeding grounds overlap, it would result in a significant gap in their breeding grounds, and therefore, we consider the Mexico and Central America populations also to be significant to the North Pacific subspecies.
The BRT discussed whether there was evidence for marked genetic divergence among any of the discrete populations. Although there was not clear agreement on the definition of ``marked,'' the BRT concluded that strong patterns of genetic differentiation in mtDNA sequence among most of the North Pacific breeding populations indicated marked genetic divergence, consistent with the conclusions in Baker et al. (2013). The overall level of differentiation among breeding populations within the North Pacific (FST = 0.09) was similar to the level of divergence among ocean basins and is consistent with a relatively high degree of divergence of these populations. Further, in reviewing Baker et al. (2013), all populations that we have identified as discrete in the North Pacific are strongly differentiated from each other at the p-
value \2\ of 0.01 level or better, except for the Central America/
Philippines pair, which are differentiated from each other at p-value of 0.05. Therefore, we agree with the BRT and conclude that all four of the discrete populations we have identified in the North Pacific (Western North Pacific, Hawaii, Mexico, and Central
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America) are significant to the North Pacific subspecies because of marked genetic differentiation.
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\2\ The p-value is the probability of obtaining a test statistic result at least as extreme as the one that was actually observed, assuming that the null hypothesis is true; a small p-value (typically ST = 0.06--0.08 in pairwise comparison to other areas). Pairwise divergence among the other areas was lower (FST = 0.01--0.05). All pairwise comparisons were statistically >0, however, and indicated a lack of free exchange among these breeding areas. Levels of haplotype diversity were generally very high (0.90--0.97). Rosenbaum et al. (2009) conducted a similar study of breeding areas in the Southern Atlantic and Western Indian Oceans, including the coastal areas of Brazil, Southwestern Africa, and Southeastern Africa. Levels of differentiation among these are statistically significant but relatively low, with FST ranging from 0.003 (among two Southwestern African locations) to 0.017 (between Brazil and Southeastern Africa). Although there was some detectable differentiation among samples from Southwestern and Southeastern African coastal locations (B1/B2 and C1/
C2/C3 International Whaling Commission (IWC) stocks, respectively), the levels of divergence within these areas were very low (FST = 0.003-0.009 within the ``B'' stock and 0.002-0.005 within the ``C'' stock). The estimated number of migrants per generation was 26 between Brazil and Southwestern Africa, and 33 between Southwestern and Southeastern Africa.
A report on an IWC workshop devoted to Southern Hemisphere stock structure issues (IWC, 2011) recognizes at least seven ``breeding stocks'' associated with low-latitude, winter breeding grounds and, in some cases, migratory corridors. These seven breeding stocks are referred to alphabetically, from A to G, to distinguish them from the six management areas on feeding grounds of the Antarctic, referred to as Areas I-VI. The current breeding stock designations are southwestern Atlantic (A), southeastern Atlantic (B), southwestern Indian Ocean (C), southeastern Indian Ocean (D), southwestern Pacific (E), Oceania (E and F) and southeastern Pacific (G). These designations have been subdivided to reflect improved understanding of substructure within some of these regions: Gabon (B1) and Southwest Africa (B2) in the southeastern Atlantic; Mozambique (C1), the Comoros Archipelago (C2), Madagascar (C3) and the Mascarene Islands (C4) in the southwestern Indian Ocean, east Australia (E1), New Caledonia (E2), Tonga (E3), the Cook Islands (F1) and French Polynesia (F2) in the southwestern Pacific and Oceania. The IWC has also chosen to include in this assessment, a year-round population of humpback whales found in the Arabian Sea, north of the equator in the northern Indian Ocean (formerly referred to as breeding stock X).
The BRT noted that the magnitude of mitochondrial DNA differentiation (as measured by FST) was generally lower among Southern Hemisphere breeding areas than it is in the Northern Hemisphere, indicating greater demographic connectivity among these areas. Even so, significant differentiation was present among major breeding areas, and the estimated number of migrants/generation among areas was small compared to the estimated sizes of the populations.
The BRT members concluded that the seven breeding stocks of humpback whales currently formally recognized by the IWC in the Southern Hemisphere meet the criteria for being discrete populations under the DPS Policy guidelines, except that they agreed that the dividing line between IWC stocks E and F was between eastern Australia and Oceania (defined here to include New Caledonia, Tonga, Samoa, American Samoa, and French Polynesia), as there are large differences in the rates of recovery between these two regions, indicating they are demographically independent. Breeding populations in New Caledonia and east Australia are separate, but some overlap between the populations occurs: some whales bound for New Caledonia use the same migratory pathways as some whales headed past east Australia. There was consensus among the BRT to divide the Southern Hemisphere into seven discrete populations: Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, West Australia, East Australia, Oceania (including New Caledonia, Tonga, Cook Islands, Samoa, American Samoa and French Polynesia), and Southeastern Pacific (Colombia and Ecuador). We agree with the BRT's conclusions, based on the significant mitochondrial DNA differentiation among major breeding populations.
With regard to the Arabian Sea population, nuclear and mitochondrial DNA diversity of humpback whales from Oman (up to 47 individuals sampled) is the lowest among all breeding grounds (Pomilla et al., 2006; Olavarriacutea et al., 2007; Rosenbaum et al., 2009). Mitochondrial DNA analysis revealed only eight distinct haplotypes, half of which are exclusive to Oman (not detected on other breeding grounds, Pomilla et al., 2006). Haplotype diversity at the mtDNA control region is markedly lower than in other populations (0.69 vs 0.90-0.98 for Southern Hemisphere populations and 0.84 for North Pacific populations) (Olavarriacutea et al., 2007; Rosenbaum et al., 2009; Baker et al., 2013).
Genetic data (nuclear microsatellites and mitochondrial control region) and fluke pigmentation markings indicate that the Arabian Sea breeding population is significantly differentiated from Southern Indian Ocean breeding grounds (Rosenbaum et al., 2009). Nuclear genetic analysis suggests that this population is the most strongly and significantly differentiated in all
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comparisons among other Indian Ocean and South Atlantic breeding populations (pair-wise FST range between Oman and Southern Indian Ocean breeding populations = 0.38-0.48) (Pomilla et al., 2006). Levels of mitochondrial DNA differentiation between Oman and other Indian Ocean breeding grounds are around ten times higher than among the other breeding grounds (pair-wise FST range between Oman and other Indian Ocean breeding populations 0.11-0.15) (Rosenbaum et al., 2009).
The BRT concluded, and we agree, that the Arabian Sea population is discrete from all other populations because of its low haplotype diversity compared to Southern Hemisphere and North Pacific populations, its differentiation in mtDNA and nDNA markers, and fluke pigmentation differences between whales in the Arabian Sea and in the Southern Indian Ocean.
Significance
The BRT noted that, within the Southern Hemisphere, most breeding populations feed in the same Antarctic marine ecosystem. One exception is the Brazil population, which feeds north of 60deg S. in the South Georgia and South Sandwich Islands area (IWC, 2011). In addition to feeding in the Antarctic system, the Gabon/Southwest Africa population may also feed along the west coast of South Africa in the Benguela Current, but this is uncertain (IWC, 2011). Like the Central America population, the Southeastern Pacific breeding population may also be ecologically unique as it is the only population in the Southern Hemisphere to occupy an area also used by a Northern Hemisphere population. We conclude that the Brazil, Gabon/Southwest Africa, and Southeastern Pacific populations occupy unique ecological settings and are therefore significant to the Southern Hemisphere subspecies of the humpback whale.
For the Southern Hemisphere, determination of feeding range is more difficult since Antarctic feeding areas are less well studied and fewer connections between breeding and feeding populations have been made. However, some populations such as Brazil, Southwest Africa, Southeast Africa, and the Southeastern Pacific are believed to have fairly discrete and non-overlapping feeding areas, suggesting that if any of these feeding areas were lost it would, in combination with the lost breeding area, result in a significant gap in the range. We conclude, therefore, that the Brazil, Gabon/Southwest Africa, Southeast Africa/
Madagascar, and Southeastern Pacific populations are significant to the Southern Hemisphere subspecies of the humpback whale because their loss would result in significant gaps in the range of the Southern Hemisphere subspecies. Further, we believe that the loss of the West Australia, East Australia, and Oceania populations would also result in significant gaps in the ranges of the Southern Hemisphere subspecies because their non-overlapping breeding ranges are quite extensive.
In the Southern Hemisphere, the Southeastern Pacific population is the only breeding population that contains a genetic signal from Northern Hemisphere populations, giving it a unique genetic signature within the Southern Hemisphere (Baker et al., 1993; Baker and Medrano-
Gonzaacutelez, 2002). It is also the most divergent of any of the Southern Hemisphere populations (Olavarriacutea et al., 2007). In addition, individuals in this region are morphologically distinct as they have darker pectoral fin coloration than other individuals in the Southern Hemisphere (Chittleborough, 1965), although the genetic basis for this trait is not known. Nonetheless, a majority of the BRT concluded that the Southeastern Pacific population was sufficiently differentiated so as to differ `markedly' in its genetic characteristics from other Southern Hemisphere populations. In contrast, all other Southern Hemisphere populations were characterized by generally low levels of differentiation among them, consistent with demographically discrete populations but not necessarily with marked genetic divergence associated with long-term isolation (Olavarriacutea et al., 2007; Rosenbaum et al., 2009). We conclude that the Southeastern Pacific population of the humpback whale is significant to the Southern Hemisphere population of the humpback whale because it differs markedly in its genetic characteristics from other Southern Hemisphere populations. We conclude that each of the seven discrete Southern Hemisphere populations (Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific) satisfies at least one significance factor of the DPS Policy, and, therefore, we consider them to be DPSs.
The Arabian Sea population persists year-round in a monsoon driven tropical ecosystem with highly contrasting seasonal wind and resulting upwelling patterns. The BRT therefore concluded that this population persists in a unique ecological setting. The Arabian Sea population segment does not migrate extensively, but instead feeds and breeds in the same geographic location. No other humpback whale populations occupy this area and hence, a loss of the Arabian Sea population would result in a significant gap in the range of the Southern Hemisphere subspecies. The BRT also concluded that the Arabian Sea population differs markedly in its genetic characteristics from other populations in the Indian Ocean and worldwide. The degree of genetic differentiation at multiple genetic markers between this population and other populations is similar to or greater than the degree of divergence among the North Pacific, North Atlantic, and Southern Hemisphere areas. The BRT unanimously concluded that the Arabian Sea population would be considered a DPS under any global taxonomic scenario, due to its marked genetic divergence from all other populations and unique ecological setting. We agree that the Arabian Sea population occupies a unique ecological setting, its loss would result in a significant gap in the range of the Southern Hemisphere subspecies, and it differs markedly in its genetic characteristics from other populations. Therefore, it meets the significance criterion of the DPS policy, and we identify the Arabian Sea population as a DPS.
Extinction Risk Assessment
The BRT discussed the relationship between population size and trend and extinction risk, citing relevant literature on small population size, environmental and demographic stochasticity, genetic effects, catastrophes, and extinction risk (e.g., Franklin, 1980; Souleacute, 1980; Gilpin and Souleacute, 1986; Allendorf et al., 1987; Goodman, 1987; Mace and Lande, 1991; Frankham, 1995; Lande, 1998; Lynch and Blanchard, 1998; Lynch and Lande, 1998; Frankham, 1999; Brook et al., 2006; Mace et al., 2008) and concluding that population size criteria similar to those described in Mace et al. (2008) (International Union for Conservation of Nature and Natural Resources (IUCN) Red List criteria) could be considered carefully but not used as the sole criterion for evaluating extinction risk. The criteria the BRT considered are that a DPS with a total population size >2,000 was not likely to be at risk due to low abundance alone, a DPS with a population size 0.99) between counts and years.
Oceania DPS
The Oceania humpback whale DPS is of moderate size (3,827 whales in New Caledonia, Tonga, French Polynesia and Cook Islands combined; CV=0.12) (South Pacific Whale Research Consortium et al., 2006); however, no trend information is available for this DPS. The DPS is quite subdivided, and the population estimate applies to an aggregate (although it is known that sub-populations differ in growth rates and other demographic parameters). There are some areas of historical range extent that have not rebounded and other areas without historical whaling information (Fleming and Jackson, 2011). There is uncertainty regarding which geographic portion of the Antarctic this DPS uses for feeding. The complex population structure of humpback whales within the Oceania region creates higher uncertainty regarding demographic parameters and threat levels than for any other DPS.
Southeastern Pacific DPS
Individuals of the Southeastern Pacific population migrate from breeding grounds between Costa Rica and northern Peru to feeding grounds in the Magellan Straits and along the Western Antarctic Peninsula. Though no quantitative growth rate information is available for this DPS, abundance estimates over a 13-year period suggest that the DPS size is increasing, and abundance was estimated to be 6,504 (95 percent CI: 4270-9907) individuals in 2005-2006 (Feacutelix et al., 2006a; Feacutelix et al., 2011). Total abundance is likely to be larger because only a portion of the DPS was enumerated.
Arabian Sea DPS
Mark-recapture studies using tail fluke photographs collected in Oman from 2000-2004 yielded a population estimate of 82 individuals (95 percent CI: 60-111). However, sample sizes were small, and there are various sources of possible negative bias, including insufficient spatial and temporal coverage of the population's suspected range (Minton et al., 2010b).
Reproductive rates in this DPS are not well understood. Cow-calf pairs were very rarely observed in surveys off the coast of Oman, composing only 7 percent of encounters in Dhofar, and not encountered at all since 2001. Soviet whaling catches off Oman, Pakistan and northwestern India also included low numbers of lactating females (3.5 percent of mature females) relative to pregnant females (46 percent of mature females) (Mikhalev, 1997).
No trend data are available for this DPS. A low proportion of immature whales (12.4 percent of all females) was also found, even though catches were indiscriminate with respect to sex and condition (Mikhalev, 1997), suggesting that either calf mortality in this DPS is high, immature animals occupy areas that have not been surveyed, or that the whales have reproductive `boom and bust' cycles which respond to high annual variation in productivity. The
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BRT noted that the entire region has not been surveyed; however, in areas where the whales are likely to be, not many whales have been observed. The BRT noted that this is a very small population but felt that there was some uncertainty in abundance estimates.
Summary of Abundance and Trends
The BRT summarized abundance and trend information for all humpback whale DPSs (Tables 7 and 8 in Bettridge et al., 2015).
In the North Atlantic Ocean, the abundance of the West Indies DPS is much greater than 2,000 individuals and is increasing moderately. However, little is known about the total size of the Cape Verde Islands/Northwest Africa DPS, and its trend is unknown.
In the Pacific Ocean, the abundance of the Okinawa/Philippines DPS (as identified by the BRT) is thought to be about 1,000 individuals with unknown trend. Little is known about the abundance of humpback whales from the unknown breeding ground (identified as the Second West Pacific DPS by the BRT), but it is likely to number at least 100 or more, with unknown trend. Combining this information, we conclude that there are at least 1,100 individuals in the Western North Pacific DPS, and the trend is unknown. The abundances of the Hawaii and Mexico DPSs are known to be much greater than 2,000 individuals and are thought to be increasing moderately. The abundance of the Central America DPS is thought to be about 500 individuals with unknown trend.
In the Southern Hemisphere, all seven DPSs are thought to be greater than 2,000 individuals in population size. The Brazil DPS is increasing either rapidly or moderately. The trend in the Gabon/
Southwest Africa DPS is unknown, while the Southeast Africa/Madagascar DPS is thought to be increasing. The West Australia and East Australia DPSs are both large and increasing rapidly. The Southeastern Pacific DPS is thought to be increasing. And the trend of the Oceania DPS is unknown.
The estimated abundance of the Arabian Sea DPS is less than 100, but its entire range was not surveyed, so it could be somewhat larger. Its trend is unknown.
Summary of Section 4(a)(1) Factors Affecting the 14 Humpback Whale DPSs
Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Federal List of Endangered and Threatened Species. Under section 4(a)(1) of the ESA, the Services must determine if a species is threatened or endangered because of any of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
In this rulemaking, information regarding the status of each of the 14 humpback whale DPSs is considered in relation to these factors. The information presented here is a summary of the information in the Status Review Report (Bettridge et al., 2015). The reader is directed to the Threats Analysis subsection under each DPS in the Status Review Report for a more detailed discussion of the factors and how they affect each DPS.
Section 4(a)(1) Factors Applicable to All DPSs
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The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range
The BRT discussed habitat-related threats to humpback whale populations, including coastal development, contaminants, energy exploration and development, and harmful algal blooms (HABs). Substantial coastal development is occurring in many regions, and may include construction that can cause increased turbidity of coastal waters, higher volume of ship traffic, and physical disruption of the marine environment. Noise associated with construction (e.g., pile driving, blasting, or explosives) and dredging has the potential to affect whales by generating sound levels believed to disturb marine mammals under certain conditions. The majority of the sound energy associated with both pile driving and dredging is in the low frequency range (2,000), moderately increasing trend, and the high percentage of likelihood points allocated to the ``not at risk of extinction'' category, we conclude that, despite the moderate threats of HABs, vessel collisions, and fishing gear entanglements and unknown severity of climate change as a threat, the West Indies DPS is not in danger of extinction throughout its
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range or likely to become so in the foreseeable future throughout its range.
Next, per the SPOIR Policy, we need to determine whether the West Indies DPS is in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range. The BRT noted that there are some regional differences in threats for the West Indies DPS, but it was unable to identify portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. We agree with the BRT's conclusions and conclude that there are no portions of the DPS that face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPS would be in danger of extinction or likely to become so in the foreseeable future. Therefore, we conclude that the DPS is not in danger of extinction in a significant portion of its range, nor likely to become so in the foreseeable future.
We conclude that the West Indies DPS is not endangered or threatened throughout all or a significant portion of its range, and, therefore, we do not propose to list the West Indies DPS as a threatened or endangered species.
In the North Pacific, the abundances of the Hawaii and Mexico DPSs are much greater than 2,000 individuals and are thought to be increasing moderately. All threats are considered likely to have no or minor impact on population size and/or the growth rate of these two DPSs or are unknown, with the following exceptions: Fishing gear entanglements are considered likely to moderately reduce the population size or the growth rate of the Hawaii and Mexico DPSs. The BRT distributed 98 percent and 92 percent of its likelihood points for the Hawaii and Mexico DPSs, respectively, to the ``not at risk of extinction'' category. Given the large population size (>2,000), moderately increasing trend, and high percentage of likelihood points allocated to the ``not at risk of extinction'' category for both the Hawaii and Mexico DPSs, we conclude that, despite the moderate threat of fishing gear entanglements, the Hawaii and Mexico DPSs are not in danger of extinction throughout their ranges or likely to become so in the foreseeable future.
Next, per the SPOIR Policy, we need to determine whether the Hawaii and Mexico DPSs are in danger of extinction or likely to become so in the foreseeable future in a significant portion of their ranges. The BRT noted that there are some regional differences in threats for the Hawaii DPS, but it was unable to identify portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. The BRT noted that there also are some regional differences in threats for the Mexico DPS, and some evidence for minor substructure within the DPS due to multiple breeding locations associated with somewhat distinctive feeding grounds. However, the BRT was unable to identify portions of the DPS that faced particularly high threats compared to other portions of the DPS or that appeared to be at high risk of extirpation. We agree, and we conclude that no portions of either DPS face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPSs would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that neither DPS is in danger of extinction in a significant portion of its range, or likely to become so in the foreseeable future.
We conclude that the Hawaii and Mexico DPSs are not endangered or threatened throughout all or a significant portion of their ranges, and we therefore do not propose to list the Hawaii and Mexico DPSs as a threatened or endangered species.
In the Southern Hemisphere, all seven DPSs are thought to be greater than 2,000 individuals in population size. The Brazil DPS is increasing either rapidly or moderately. The trend of the Gabon/
Southwest Africa DPS is unknown. The trend of the Southeast Africa/
Madagascar DPS is thought to either be increasing or stable. The trend of the Oceania DPS is unknown. The West Australia and East Australia DPSs are both large and increasing rapidly. The Southeastern Pacific DPS is thought to either be increasing or stable. In the Southern Hemisphere, all threats are considered likely to have no or minor impact on population size and/or the growth rate or are unknown, with the exception of energy exploration posing a moderate threat to the West Australia and Gabon/Southwest Africa DPSs, and fishing gear entanglements posing a moderate threat to the Southeastern Pacific, Southeast Africa/Madagascar, and Oceania DPSs. The BRT distributed at least 93 percent of their likelihood points to the ``not at risk of extinction'' category for six DPSs in the Southern Hemisphere (Brazil, Gabon/Southwest Africa, and Southeast Africa/Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs), thus indicating a high certainty in its voting. For the Oceania DPS, the BRT distributed 68 percent of its points to the ``not at risk of extinction'' category, indicating moderate certainty, and 29 percent of its points to the ``moderate risk of extinction'' category, indicating some support. None of the factors that may negatively impact the status of the humpback whale appear to pose a threat to recovery, either alone or cumulatively, for these DPSs. Given the large population sizes (>2,000) for all seven DPSs, the fact that none of these DPSs is known to be decreasing in population size and some are increasing, the high percentage of (or, in the case of the Oceania DPS, the majority of) likelihood points allocated to the ``not at risk of extinction'' category, and the high certainty associated with six of these extinction risk estimates and moderate certainty associated with the extinction risk estimate for the Oceania DPS, we conclude that none of these seven DPSs are at risk of extinction throughout all of their ranges now or in the foreseeable future.
Next, per the SPOIR Policy, we need to determine whether any of these DPSs are in danger of extinction or likely to become so in the foreseeable future in a significant portion of their ranges. The BRT was unable to identify portions of the Brazil, Southeast Africa/
Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs that both faced particularly high threats and were so significant to the viability of the DPSs as a whole that, if lost, would result in the remainder of the DPSs being at high risk of extinction. We agree, and we also conclude that no portions of these DPSs face particularly high threats and are so significant to the viability of the DPSs that, if lost, any DPS would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Brazil, Southeast Africa/Madagascar, West Australia, East Australia, and Southeastern Pacific DPSs are not threatened or endangered in a significant portion of their ranges.
The BRT concluded that there was some evidence for population substructure within the Gabon/Southwest Africa DPS, based on an extensive breeding range with some significant genetic differentiation among breeding locations (Rosenbaum et al., 2009). However, the BRT was unable to identify any portions of the DPS that both faced particularly high threats and were so significant to the viability of the DPS as a whole that, if lost, would result in the remainder of the DPS being at high risk of extinction. We agree, and we also conclude that no portions of this DPS face particularly high threats and are so significant to the viability of the DPS that, if lost, the DPS would be
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in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Gabon/Southwest Africa DPS is not threatened or endangered in a significant portion of its range.
The BRT noted that the Oceania DPS has potentially somewhat greater substructure than most other humpback whale DPSs due to its extended breeding range, though a lack of strong genetic structure indicates there are likely to be considerable demographic connections among these areas. Some threats, such as whale watching in the Southern Lagoon of New Caledonia, appear to be localized. Nonetheless, the BRT was unable to identify any specific areas where threats were sufficiently severe to be likely to cause local extirpation. We agree, and we also conclude that no portion of this DPS faces particularly high threats and is so significant to the viability of the DPS that, if lost, the DPS would be in danger of extinction, or likely to become so in the foreseeable future. Therefore, we conclude that the Oceania DPS is not threatened or endangered in a significant portion of its range.
We conclude that none of the seven DPSs in the Southern Hemisphere are endangered or threatened throughout all or a significant portion of their ranges, and we therefore do not propose to list the Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs as endangered or threatened species.
Monitoring Plan
We will work with the states and countries within the range of the ten DPSs that we do not propose for listing (which has the effect of removing them from the endangered species list) to develop a plan for continuing to monitor the status of these DPSs. The objective of the monitoring plan will be to ensure that necessary recovery actions remain in place and to ensure the absence of substantial new threats to the DPSs' continued existence. In part such monitoring efforts are already an integral component of ongoing research, existing stranding networks, and other management and enforcement programs implemented under the MMPA. These activities are conducted by NMFS in collaboration with other Federal and state agencies, the Western Pacific Fishery Management Council, North Pacific Fishery Management Council, the New England Fishery Management Council, university affiliates, and private research groups. As noted in Bettridge et al. (2015), many regulatory avenues already in existence provide for review of proposed projects to reduce or prevent adverse effects to humpback whales and for post-
project monitoring to ensure protection to humpback whales, as well as penalties for violation of the prohibition on unauthorized take under the MMPA for all DPSs that occur in U.S. waters or by U.S. persons or vessels on the high seas. However, the addition and implementation of specific Monitoring Plans will provide an additional degree of attention and an early warning system to ensure that constructively removing these ten DPSs from the endangered species list will not result in the re-emergence of threats to the DPSs.
Description of Proposed Regulatory Changes
To implement this proposed action we propose to replace the humpback whale listing on the endangered species list at 50 CFR 224.101 with the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs of the humpback whale and add the Western North Pacific and Central America DPSs of the humpback whale to the list of threatened species at 50 CFR 223.102.
Prohibitions and Protective Measures
Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations and agencies subject to U.S. jurisdiction. Section 4(d) of the ESA directs the Secretary of Commerce (Secretary) to implement regulations ``to provide for the conservation of threatened species'' that may include extending any or all of the prohibitions of section 9 to threatened species. Section 9(a)(1)(g) also prohibits violations of protective regulations for threatened species implemented under section 4(d). We are proposing to extend all of the prohibitions of section 9(a)(1) in protective regulations issued under the second sentence of section 4(d) for the Western North Pacific and Central America DPSs of the humpback whale. No special findings are required to support extending Section 9 prohibitions for the protection of threatened species. See In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F.Supp.2d 214, 228 (D.D.C. 2011); Sweet Home Chapter of Cmties. for a Great Oregon v. Babbitt, 1 F.3d 1, 8 (D.C. Cir.1993), modified on other grounds on reh'g, 17 F.3d 1463 (D.C. Cir. 1994), rev'd on other grounds, 515 U.S. 687 (1995).
Sections 7(a)(2) and (4) of the ESA require Federal agencies to consult or confer with us to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or a species proposed for listing, or to adversely modify critical habitat or proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Examples of Federal actions that may affect the Cape Verde Islands/
Northwest Africa, Western North Pacific, and Central America DPSs of the humpback whale include permits and authorizations for shipping, fisheries, oil and gas exploration, and toxic waste and other pollutant discharges, if they occur in U.S. waters or the high seas.
Sections 10(a)(1)(A) and (B) of the ESA provide us with authority to grant exceptions to the ESA's section 9 ``take'' prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. The type of activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets humpback whales, including the importation of non-U.S. samples for research conducted in the United States. Section 10(a)(1)(B) incidental take permits are required for non-Federal activities that may incidentally take a listed species in the course of an otherwise lawful activity.
Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA
On July 1, 1994, NMFS and the FWS issued an Interagency Cooperative Policy for Endangered Species Act Section 9 Prohibitions (59 FR 34272). The intent of this policy is to increase public awareness of the effect of our ESA 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 be considered likely to result in violation of section 9, as well as activities that will not be considered likely to result in violation. Because the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs occur outside of the jurisdiction of the United States, we are presently unaware of any activities that could result in violation of section 9 of the ESA for these DPSs; nevertheless, the possibility for violations exists (for example, import into the United States). Activities that we believe could result in violation of section 9 prohibitions against ``take'' of the Western North Pacific and Central America DPSs of the humpback whale include: (1) Unauthorized harvest or
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lethal takes of humpback whales in the Western North Pacific and Central America DPSs by U.S. citizens; (2) in-water activities conducted by U.S. citizens that produce high levels of underwater noise, which may harass or injure humpback whales in the Western North Pacific and Central America DPSs; (3) U.S. fisheries that may result in entanglement of humpback whales in the Western North Pacific and Central America DPSs; (4) vessel strikes from U.S. ships operating in U.S. waters or on the high seas; and (5) discharging or dumping toxic chemicals or other pollutants by U.S. citizens into areas used by humpback whales from the Western North Pacific and Central America DPSs.
We expect, based on the best available information, the following actions will not result in a violation of section 9: (1) Federally funded or approved projects for which ESA section 7 consultation has been completed and necessary mitigation developed, and that are conducted in accordance with any terms and conditions we provide in an incidental take statement accompanying a biological opinion; and (2) takes of humpback whales in the Western North Pacific and Central America DPSs that have been authorized by NMFS pursuant to section 10 of the ESA. These lists are not exhaustive. They are intended to provide some examples of the types of activities that we might or might not consider as constituting a take of humpback whales in the Western North Pacific and Central America DPSs.
Effects of This Rulemaking
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); concurrent designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); 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. The main effects of the proposed listings are prohibitions on take, including export and import. If this proposed rule is finalized, the provisions discussed above will no longer apply to the DPSs that are in effect removed from the endangered species list.
The MMPA provides substantial protections to all marine mammals, such as humpback whales, whether they are listed under the ESA or not. In addition, the MMPA provides heightened protections to marine mammals designated as ``depleted'' (e.g., no take waiver, additional restrictions on the issuance of permits for research, importation, and captive maintenance), including humpback whales. Section 3(1) of the MMPA defines ``depleted'' as ``any case in which'': (1) The Secretary ``determines that a species or population stock is below its optimum sustainable population''; (2) a state to which authority has been delegated makes the same determination; or (3) a species or stock ``is listed as an endangered species or a threatened species under the ESA'' (16 U.S.C. 1362(1)). Section 115(a)(1) of the MMPA establishes that ``in any action by the Secretary to determine if a species or stock should be designated as depleted, or should no longer be designated as depleted,'' such determination must be made by rule, after public notice and an opportunity for comment (16 U.S.C. 1383b(a)(1)). It is NMFS' position that a marine mammal species automatically gains ``depleted'' status under the MMPA when it is listed under the ESA. In the absence of an ESA listing, NMFS follows the procedures described in section 115(a)(1) to designate a marine mammal species as depleted when the basis for its depleted status is that it is below its optimum sustainable population. This interpretation was recently confirmed by the United States Court of Appeals for the D.C. Circuit. See In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, 720 F.3d 354 (D.C. Cir. 2013). Humpback whales are currently designated as ``depleted'' under the MMPA because of the species' ESA listing. NMFS has not separately determined that the humpback whale species is depleted on the basis that it is below its optimum sustainable population.
NMFS is currently evaluating what result sections 3(1) and 115(a)(1) of the MMPA require when a species that holds depleted status solely because of its ESA listing is found to no longer warrant ESA listing. Thus, we are currently reviewing whether any DPS of the humpback whale that is not listed under the ESA after a final rule is published would automatically lose depleted status under the MMPA, or whether the agency must undertake additional analysis and complete additional procedures before a change in depleted status may occur. We seek comments from the public regarding different options for construing the relevant provisions of these statutes in harmony and will consider all viable alternatives (see ADDRESSES).
This rule also has implications for the approach regulations currently at 50 CFR 224.103(a) and (b), discussed previously. With regard to the regulations in effect in Hawaii (224.103(a)), the delisting of the Hawaii DPS, if finalized, would remove the ESA basis for promulgation of that rule. However, the substantially similar protections in effect within the Hawaiian Islands Humpback Whale National Marine Sanctuary, at 15 CFR 922.184, may provide sufficient protection for the species. We note that the Office of National Marine Sanctuaries has recently proposed to, among other things, expand the sanctuary boundaries and strengthen the protections from approaching vessels (80 FR 16224, 16238; March 26, 2015). We plan to propose, through separate rulemaking, to remove the approach regulations at Sec. 224.103(a) because those regulations are specific to endangered species. If additional protection is determined necessary, we may undertake separate rulemaking pursuant to the MMPA. We request public comment on this issue.
With regard to the regulations in effect in Alaska (224.103(b)), the impacts of this proposed rule are different. When the Alaska provisions were adopted, we cited Section 112(a) of the MMPA in addition to Section 11(f) of the ESA as authority (16 U.S.C. 1382(a); 16 U.S.C. 1540(f)). However, because the humpback whale was listed throughout its range as endangered, the rule was codified only in Part 224 of the ESA regulations (which applies to ``Endangered Marine and Anadromous Species''). The reclassification of the Western North Pacific DPS to threatened, if finalized, would require relocating the provisions from Part 224 to Part 223 (which applies to ``Threatened Marine and Anadromous Species''). By separate rulemaking, we plan to propose to relocate these provisions to a new section, 223.214 in order to continue the protection of the threatened humpback whales in Alaska, because these provisions have been in effect for 14 years and are important in light of the potential impacts posed by the whalewatching industry, recreational boating community, and other maritime users. We would simultaneously delete current 50 CFR 224.103(b). In the separate rulemaking, we also plan to propose to set out these provisions in Part 216 of Title 50 of the
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Code of Federal Regulations for the protection of all humpback whales that may occur or transit through the waters surrounding Alaska, to reflect that these provisions were adopted under the MMPA as well as the ESA and are an important source of protection for these marine mammals. We seek public comment on this issue as well.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing a minimum peer review standard. The intent of the peer review policies is to ensure that listings are based on the best scientific and commercial data available. The BRT enlisted the help of the Marine Mammal Commission (MMC) to coordinate scientific peer review of the June 2012 draft of its status review report. The MMC received comments from five reviewers and these reviews were provided, without attribution, to the BRT. The BRT addressed all peer review comments in the final status review report (Bettridge et al., 2015) being released with the publication of this 12-month finding/proposed rule. We conclude that these experts' reviews satisfy the requirements for ``adequate prior peer review'' contained in the Bulletin (sec. II.2.).
Critical Habitat
Section 3 of the ESA (16 U.S.C. 1532(5A)) defines critical habitat as ``(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . 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 . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.'' Section 3 of the ESA also defines the terms ``conserve,'' ``conserving,'' and ``conservation'' to mean ``to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary'' (16 U.S.C. 1532(3)).
Section 4(a)(3)(A)(i) of the ESA requires that, to the maximum extent practicable and determinable, critical habitat be designated concurrently with the listing of a species. Designation of critical habitat must be based on the best scientific data available, and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat (16 U.S.C. 1533(b)(2)). 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 (16 U.S.C. 1536(a)(2)). This requirement is in addition to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of the species.
In determining what areas qualify as critical habitat, 50 CFR 424.12(b) requires that NMFS ``consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.'' The regulations further direct NMFS to ``focus on the principal biological or physical constituent elements . . . that are essential to the conservation of the species,'' and specify that the ``known primary constituent elements shall be listed with the critical habitat description.'' The regulations identify primary constituent elements (PCEs) as including, but 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.''
The ESA directs the Secretary of Commerce to consider the economic impact, the national security impacts, and any other relevant impacts from designating critical habitat, and under section 4(b)(2), the Secretary may exclude any area from such designation if the benefits of exclusion outweigh those of inclusion, provided that the exclusion will not result in the extinction of the species. At this time, critical habitat for the humpback whales in the Western North Pacific and Central America DPSs is not determinable. We will propose critical habitat for the Western North Pacific and Central America DPSs of the humpback whale in a separate rulemaking if we determine that it is prudent to do so. To assist us with that rulemaking, we specifically request information to help us identify the essential features of this habitat, and to what extent those features may require special management considerations or protection, as well as the economic activities within the range of the Western North Pacific and Central America DPSs that could be impacted by critical habitat designation. 50 CFR 424.12(h) specifies that critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within the United States or waters within U.S. jurisdiction.
Because the known distribution of the humpback whales in the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs occurs in areas outside the jurisdiction of the United States, no critical habitat will be designated for these DPSs.
Public Comments Solicited
Relying on the best scientific and commercial information available, we exercised our best professional judgment in developing this proposal to divide the humpback whale into 14 DPSs, retain the Cape Verde Islands/Northwest Africa and Arabian Sea DPSs on the list of endangered species at 50 CFR 224.101, add the Western North Pacific and Central America DPSs to the list of threatened species and extend all section 9 prohibitions to these DPSs, and remove the other 10 DPSs (West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific) from the endangered species list at 50 CFR 224.101. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we solicit comments and suggestions concerning this proposed rule from the public, other concerned governments and agencies, Indian tribal governments, Alaska Native tribal governments or organizations, the scientific community, industry, and any other interested parties. Comments are encouraged on this proposal as well as on the status review report (See DATES and ADDRESSES). Comments are particularly sought concerning:
(1) The identification of 3 subspecies of humpback whale comprised of 14 DPSs;
(2) The current population status of identified humpback whale DPSs;
(3) Biological or other information regarding the threats to the identified humpback whale DPSs;
(4) Information on the effectiveness of ongoing and planned humpback whale conservation efforts by countries, states, or local entities;
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(5) Activities that could result in a violation of section 9(a)(1) of the ESA if such prohibitions are applied to the Western North Pacific and Central America DPSs;
(6) Whether any DPS of the humpback whale that is not listed under the ESA in a final rule would automatically lose depleted status under the MMPA, or, if not, what analysis and process is required by the MMPA before a change in depleted status may occur. We seek comments regarding different options for construing the relevant provisions of these statutes in harmony;
(7) Whether approach regulations should be promulgated under the MMPA for the protection of the Hawaii DPS of the humpback whale, since if this rule becomes final, that DPS will no longer be listed under the ESA, or whether current protections in effect in the Hawaiian Islands Humpback Whale National Marine Sanctuary (at 15 CFR 922.184) are sufficient for the protection of the species from vessel interactions. Commenters should consider the impact of the recent proposal by NOAA's Office of National Marine Sanctuaries to expand the sanctuary boundaries and strengthen the approach regulations (80 FR 16224; March 26, 2015);
(8) Whether approach regulations in effect for the protection of humpback whales in Alaska, currently set forth at 50 CFR 224.103(b), should be relocated to Part 223 (which applies to threatened species) for the continuing protection of the Western North Pacific DPS, and whether these regulations should also be set out in 50 CFR 216 as MMPA regulations for the protection of all humpback whales occurring in that area in light of the fact that the MMPA was one of the original authorities cited in promulgating the regulation;
(9) Information related to the designation of critical habitat, including identification of those physical or biological features which are essential to the conservation of the Western North Pacific and Central America DPSs of humpback whale and which may require special management consideration or protection;
(10) Economic, national security, and other relevant impacts from the designation of critical habitat for the Western North Pacific and Central America DPSs of humpback whale; and
(11) Research and other activities that would be important to include in post-delisting monitoring plans for the West Indies, Hawaii, Mexico, Brazil, Gabon/Southwest Africa, Southeast Africa/Madagascar, West Australia, East Australia, Oceania, and Southeastern Pacific DPSs.
You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES). We will review all public comments and any additional information regarding the status of the identified DPSs of the humpback whale and will complete a final determination within 1 year of publication of this proposed rule, as required under the ESA. Final promulgation of the regulation(s) will consider the comments and any additional information we receive, and such communications may lead to a final regulation that differs from this proposal.
Public Hearings
During each public hearing, a brief opening presentation on the proposed rule will be provided before accepting public testimony. Written comments may be submitted at the hearing or via the Federal e-
Rulemaking Portal (see ADDRESSES) until the scheduled close of the comment period on July 20, 2015. In the event that attendance at the public hearings is large, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us.
Public Hearing Schedule
The dates and locations for the four hearings are as follows:
-
-
Honolulu: May 6, 2015, from 6:00 p.m. to 8:00 p.m. at the Japanese Cultural Center, Manoa Ballroom, 2454 South Beretania Street, Honolulu, HI 96826, with an informational open house beginning at 5:30 p.m. Parking is available at the Japanese Cultural Center for $5.
-
Juneau: May 19, 2015, 5 p.m. to 8 p.m. at the Centennial Hall, Hickel Room, 101 Egan Drive, Juneau, AK.
-
Plymouth: June 3, 2015, 6 p.m. to 8:30 p.m., Plymouth Public Library, 132 South Street, Plymouth, MA.
-
Virginia Beach: June 9, 2015, 5 p.m. to 6:30 p.m., at the Hilton Virgina Beach Oceanfront, 3001 Atlantic Ave, Virginia Beach, VA. This will be in conjunction with the Mid-Atlantic Fishery Management Council's meeting being held during the same week.
Special Accommodations
These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other accommodations should be directed to Marta Nammack (see ADDRESSES) as soon as possible, but no later than 7 business days prior to the hearing date.
Classification
National Environmental Policy Act (NEPA)
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 NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216-6.) We are currently reviewing whether any other aspect of this proposed rule will require NEPA analysis.
Executive Order (E.O.) 12866, Paperwork Reduction Act, and Regulatory Flexibility Act
This rule is exempt from review under E.O. 12866. This proposed rule does not contain a collection of information requirement for the purposes of the 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 analyses required by the Regulatory Flexibility Act are not applicable to the listing process.
E.O. 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this proposed rule; therefore this action does not have federalism implications as that term is defined in E.O. 13132.
E.O. 13175, Consultation and Coordination With Indian Tribal Governments
The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of
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due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175--Consultation and Coordination with Indian Tribal Governments--outlines the responsibilities of the Federal Government in matters affecting tribal interests. Section 161 of Public Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 108-447 (118 Stat. 3267), directs all Federal agencies to consult with Alaska Native tribes or organizations on the same basis as Indian tribes under E.O. 13175.
We intend to coordinate with tribal governments and native corporations which may be affected by the proposed action. We will provide them with a copy of this proposed rule for review and comment, and offer the opportunity to consult on the proposed action.
List of Subjects
Endangered and threatened species, Exports, Imports, Transportation.
50 CFR Part 224
Endangered and threatened species.
Dated: April 15, 2015.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 224 are proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
-
The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec. 223.206(d)(9).
0
-
In Sec. 223.102, in paragraph (e), the table is amended by adding entries for ``Whale, humpback (Central America DPS)'' and ``Whale, humpback (Western North Pacific DPS)'' under MARINE MAMMALS in alphabetical order by Common Name to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA Rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, humpback (Central Megaptera Humpback whales that Insert Federal NA 223.213
America DPS). novaeangliae. breed along the Register page
Pacific coast of where the
Costa Rica, Panama, document
Guatemala, El begins, April
Salvador, Honduras, 21, 2015.
and Nicaragua in
the eastern North
Pacific Ocean or
feed almost
exclusively
offshore of
California and
Oregon in the
eastern North
Pacific Ocean, with
some feeding off
northern Washington/
southern British
Columbia.
Whale, humpback (Western Megaptera Humpback whales that Insert Federal NA 223.213
North Pacific DPS). novaeangliae. breed or winter in Register page 223.214
the area of Okinawa where the
and the Philippines document
in the Kuroshio begins, April
Current (as well as 21, 2015.
unknown breeding
grounds in the
Western North
Pacific Ocean),
transitthe
Ogasawara area, or
feed in the North
Pacific Ocean,
primarily in the
West Bering Sea and
off the Russian
coast and the
Aleutian Islands.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, is limited to turtles while in the water.
0
-
Add Sec. 223.213 to subpart B to read as follows:
Sec. 223.213 Western North Pacific and Central America distinct population segments (DPSs) of the humpback whale.
Prohibitions. The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species shall apply to the Western North Pacific DPS and the Central America DPS of the humpback whale listed in Sec. 223.102(e).
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
-
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.
0
-
In Sec. 224.101, in the table in paragraph (h), revise the entry for ``Whale, humpback'' to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) * * *
Page 22356
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, humpback (Arabian Sea Megaptera Humpback whales that Insert Federal NA NA
DPS). novaeangliae. breed or feed in Register page
the Arabian Sea. where the
document
begins, April
21, 2015.
Whale, humpback whale (Cape Megaptera Humpback whales that Insert Federal NA NA
Verde Islands/Northwest novaeangliae. breed in waters Register page
Africa DPS). surrounding the where the
Cape Verde Islands document
in the Eastern begins, April
North Atlantic 21, 2015.
Ocean, as well as
an undetermined
breeding area in
the eastern
tropical Atlantic
(possibly Canary
Current) or feed
along the Iceland
Shelf and Sea and
the Norwegian Sea.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, is limited to turtles while in the water.
FR Doc. 2015-09010 Filed 4-20-15; 8:45 am
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