[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Rules and Regulations]
[Pages 71259-71286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28750]
[[Page 71259]]
Vol. 77
Thursday,
No. 230
November 29, 2012
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 229 and 665
Taking of Marine Mammals Incidental to Commercial Fishing Operations;
False Killer Whale Take Reduction Plan; Final Rule
Federal Register / Vol. 77 , No. 230 / Thursday, November 29, 2012 /
Rules and Regulations
[[Page 71260]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 229 and 665
[Docket No. 110131070-2626-02]
RIN 0648-BA30
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; False Killer Whale Take Reduction Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, issue the final False Killer Whale Take Reduction
Plan (FKWTRP), and regulatory measures and non-regulatory measures and
recommendations to reduce mortalities and serious injuries of false
killer whales in Hawaii-based longline fisheries. Regulatory measures
include gear requirements, longline prohibited areas, training and
certification in marine mammal handling and release, captains'
supervision of marine mammal handling and release, and posting of NMFS-
approved placards on longline vessels. In this rule, NMFS also
recommends research and data collection programs. This final rule also
revises the boundaries of the longline prohibited area around the main
Hawaiian Islands to be consistent with the prohibited area established
under the FKWTRP regulations. The FKWTRP is based on consensus
recommendations submitted to NMFS by the False Killer Whale Take
Reduction Team (Team), with certain modifications described herein that
were determined to be necessary to meet the requirements of the MMPA.
This final rule is necessary because current mortality and serious
injury levels of the Hawaii Pelagic and Hawaii Insular stocks of false
killer whales incidental to the Hawaii-based pelagic longline fisheries
are above the stocks' potential biological removal (PBR) levels, and
are therefore inconsistent with the short- and long-term goals of the
Marine Mammal Protection Act (MMPA). The FKWTRP is intended to meet the
requirements of the MMPA.
DATES: This rule is effective December 31, 2012, except for the
addition of Sec. Sec. 229.3(v) and 229.37(c), which are effective
February 27, 2013.
ADDRESSES: This final rule (the False Killer Whale Take Reduction Plan,
or FKWTRP), the final Environmental Assessment, Regulatory Impact
Review, and Final Regulatory Flexibility Analysis, the proposed rule
(proposed FKWTRP), the FKWTRP compliance guide, the recommendations
submitted by the Team (the Draft FKWTRP), references, and other
background documents are identified by NOAA-NMFS-2011-0042 and are
available at www.regulations.gov, at the Take Reduction Team web site:
www.nmfs.noaa.gov/pr/interactions/trt/falsekillerwhale.htm, or by
submitting a request to the Regulatory Branch Chief, NMFS Pacific
Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI
96814.
FOR FURTHER INFORMATION CONTACT: Nancy Young, NMFS PIR,
Nancy.Young@noaa.gov, 808-944-2282; Lance Smith, NMFS PIR,
Lance.Smith@noaa.gov, 808-944-2258; or Kristy Long, NMFS Office of
Protected Resources, Kristy.Long@noaa.gov, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Background
This final rule, which serves as the final FKWTRP, implements
regulatory and non-regulatory measures recommended by the Team, with
some modifications, to satisfy the requirements of the MMPA. Details
concerning the justification for and development of this FKWTRP were
provided in the proposed rule (76 FR 42082, July 18, 2011) and are not
repeated here. NMFS requested public comment on the proposed rule and
provided a 90-day public comment period. In addition, one Team meeting
was conducted during the 90-day public comment period. Below, we
provide information on the affected false killer whale stocks, describe
the final FKWTRP management measures, summarize the public comments
received and provide responses, and describe changes made to the
proposed regulations based on the comments.
Distribution and Stock Structure of False Killer Whales in the Pacific
Islands Region
False killer whales are found worldwide mainly in tropical and
warm-temperate waters (Stacey et al., 1994). In the North Pacific, this
species is well known from southern Japan, Hawaii, and the eastern
tropical Pacific. There are six stranding records from Hawaiian waters
(Nitta, 1991; Maldini et al., 2005). One on-effort sighting of false
killer whales was made during a NMFS 2002 shipboard survey and six
during a 2010 shipboard survey of waters within the U.S. Exclusive
Economic Zone (EEZ) around the Hawaii Archipelago (Barlow, 2006;
Bradford et al., 2012). Smaller-scale surveys conducted around the main
Hawaiian Islands (MHI) show that false killer whales are also
encountered in nearshore waters there (Mobley et al., 2000; Baird et
al., 2008), and sightings during the 2010 shipboard survey reveal that
the species also occurs near shore in the Northwestern Hawaiian Islands
(NWHI; Baird et al., 2012). This species also occurs in the U.S. EEZ
around Palmyra Atoll, Johnston Atoll (NMFS unpublished data), and
American Samoa (Johnston et al., 2008; Oleson, 2009; Carretta et al.,
2012a).
In the MMPA draft 2012 Stock Assessment Report (SAR), there are
five Pacific Islands Region management stocks of false killer whales:
(1) The Hawaii Insular stock, which includes false killer whales
inhabiting waters within 140 km (approximately 75 nm) of the MHI; (2)
the NWHI stock, which includes false killer whales inhabiting waters
within 93 km (50 nm) of the NWHI and Kauai; (3) the Hawaii Pelagic
stock, which includes false killer whales inhabiting waters greater
than 40 km (22 nm) from the MHI; (4) the Palmyra Atoll stock, which
includes false killer whales found within the U.S. EEZ around Palmyra
Atoll; and (5) the American Samoa stock, which includes false killer
whales found within the U.S. EEZ around American Samoa (Carretta et
al., 2012a). For reasons described in the Federal Register notice
establishing the Team (75 FR 2853, January 19, 2010), the American
Samoa stock was not included in the scope of the Team's discussions.
The newly defined NWHI stock was also not included in the scope of the
Team's discussions because the survey information was not yet
available. Neither stock is described further in this final FKWTRP.
Moreover, because the 2010 survey information only recently became
available, this FKWTRP incorporates abundance estimates for the Hawaii
Pelagic and Hawaii Insular Stocks that were not considered by the Team
or identified in the proposed rule. However, these new abundance
estimates do not change any of the regulatory or non-regulatory
measures identified in the proposed rule, and are used primarily to
supplement and explain existing information in the record, including
the determination of each stock's current PBR. The Team was advised at
various meetings of the ongoing cetacean survey and data analysis, and
of the likelihood that abundance estimates and PBR for the Hawaii
Pelagic stock of false killer whales would increase some amount. Both
the Team's consensus FKWTRP and the proposed FKWTRP identified a
[[Page 71261]]
process for closing an area to deep-set longline fishing based, in
part, on PBR and abundance estimates that would change as new
information became available.
The non-strategic Palmyra Atoll stock of false killer whales was
included in the scope of the Team's discussions (see Notice of
Establishment of a False Killer Whale Take Reduction Team and Meeting,
75 FR 2853, January 19, 2010), the Team's recommendations (FKWTRT,
2010), and NMFS' proposed Plan (76 FR 42082, July 18, 2011). MMPA
Section 118(f)(1) provides that NMFS may develop take reduction plans
for non-strategic marine mammal stocks interacting with a Category I
fishery if NMFS determines, after notice and opportunity for public
comment, that the fishery has a high level of mortalities and serious
injuries (M&SI) across a number of such marine mammal stocks. The MMPA
does not further define the term ``high level''. However, evaluation of
the fishery's M&SI compared to PBR for the non-strategic marine mammals
taken in the fishery, as presented in the final 2011 SARs (Carretta et
al., 2012b; assessments for these stocks were not updated in the draft
2012 SARs), indicate levels of M&SI (i.e., between 0 and 4.7 percent of
PBR) across seven stocks that meet the insignificance threshold set
forth in 50 CFR 229.2. Accordingly, NMFS does not consider this level
of M&SI of non-strategic marine mammal stocks to be a ``high level''
for purposes of including these stocks in a take reduction plan.
Therefore, NMFS is not including any non-strategic marine mammal
stocks, including the Palmyra Atoll stock, in the scope of this final
Plan.
Abundance Estimates and Potential Biological Removal Levels
Hawaii Insular Stock of False Killer Whales
A Status Review for the Hawaii Insular stock (Oleson et al., 2010)
used recent, unpublished abundance estimates for two time periods,
2000-2004 and 2006-2009 in their Population Viability Analysis (PVA).
Two separate estimates for 2006-2009 were presented in the Status
Review, 151 (coefficient of variation, or CV=0.20; the CV is a
measurement of the variation in the data, and is calculated as the
ratio of the standard deviation to the mean) and 170 (CV=0.21),
depending on whether animals photographed near Kauai are included in
the estimate (Baird, unpublished data). As the animals seen near Kauai
have now been associated with the NWHI stock (Baird et al., 2012), the
best estimate of population size is taken as the smaller estimate
(Carretta et al., 2012a). However, it should be noted that even this
smaller estimate may be an overestimate, because missed matches were
discovered after the mark-recapture analyses were complete (discussed
in Oleson et al., 2010; Carretta et al., 2012a).
The minimum population estimate for the Hawaii Insular stock of
false killer whales is the number of distinct individuals identified
during the 2008-2011 photo-identification studies, which is 129 false
killer whales (Baird, Hawaii insular false killer whale catalog;
Carretta et al., 2012a). No data are available on current or maximum
net productivity rate for this stock. NMFS proposed to list the
Hawaiian Insular population of false killer whales (defined to be the
same as the Hawaii Insular stock) as an endangered distinct population
segment (DPS) under the ESA (75 FR 70169, November 17, 2010).
The MMPA, section 3(20) defines PBR as the ``maximum number of
animals, excluding natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population.'' PBR is calculated as the product of
minimum population size, one-half the maximum productivity rate, and a
recovery factor (MMPA Sec. 3(20), 16 U.S.C. 1362). The PBR level for
the Hawaii Insular false killer whale stock is calculated as the
minimum population size (129) times one half the default maximum net
growth rate for cetaceans (one half of 4 percent) times a recovery
factor of 0.1, resulting in a PBR of 0.3 false killer whales per year,
as of the draft 2012 SAR (Carretta et al., 2012a). The recovery factor
reported in the SAR (Carretta et al., 2012a) was chosen to be 0.1
because the stock has been proposed for listing as endangered under the
U.S. Endangered Species Act and because of the significant recent
decline experienced by this stock (Oleson et al. 2010).
Hawaii Pelagic Stock of False Killer Whales
An abundance survey of the U.S. EEZ around Hawaii (Hawaiian Islands
Cetacean and Ecosystem Assessment Survey, or HICEAS) was completed in
2010 and resulted in five on-effort detections of false killer whales
attributed to the Hawaii Pelagic stock. Recent analysis of the 2010
shipboard line-transect survey resulted in an abundance estimate of
1,503 (CV=0.66) false killer whales (Bradford et al., 2012) outside of
40 km (22 nm) of the MHI. Behavioral observations and assessment of the
line-transect detection function indicate that false killer whales are
attracted to the survey vessel (Bradford et al., 2012). The abundance
estimate has not been corrected for vessel attraction and is considered
an over-estimate of population abundance. The acoustic data collected
during the 2010 survey are still being analyzed such that additional
refinements to this estimate are expected. A 2005 survey (Barlow and
Rankin, 2007) resulted in a separate abundance estimate of 906 (CV =
0.68) false killer whales in international waters south of the U.S. EEZ
around Hawaii and within the U.S. EEZ around Johnston Atoll, but it is
unknown how many of these animals might belong to the Hawaii Pelagic
stock.
The log-normal 20th percentile (``Nmin'') of the 2010 abundance
estimate for the U.S. EEZ around Hawaii outside of 40 km (22 nm) from
the MHI (Bradford et al., 2012) is 906 false killer whales. This Nmin
has not been corrected for vessel attraction and may be an over-
estimate of minimum population size. No data are available on current
population trend or on current or maximum net productivity rate for
this stock.
Following the NMFS Guidelines for Assessing Marine Mammal Stocks
(GAMMS) (NMFS, 2005a), the PBR is calculated only within the U.S. EEZ
around Hawaii because abundance estimates and estimates of human-caused
M&SI from all U.S. and non-U.S. sources are not available for the high
seas where this stock also occurs. The PBR level for the Hawaii Pelagic
stock of false killer whale is thus calculated as the minimum
population size within the U.S. EEZ around Hawaii (906) times one half
the default maximum net growth rate for cetaceans (one half of 4
percent) times a recovery factor of 0.5 (for a stock of unknown status
with the CV of the M&SI rate in the U.S. EEZ around Hawaii equal to
0.3; Wade and Angliss, 1997), resulting in a PBR of 9.1 false killer
whales per year, as of the draft 2012 SAR (Carretta et al., 2012a).
Mortality and Serious Injury Estimates
The total observed M&SI of cetaceans in the shallow-set longline
fishery (with 100 percent observer coverage) and the estimated annual
and 5-year average M&SI of cetaceans in the deep-set longline fishery
(based on approximately 20 percent observer coverage) are reported by
McCracken (2011). The methodology includes prorating all estimated
incidental takes of false killer whales and observed takes for which an
injury severity determination could not be made, based on the
proportions of observed interactions that resulted in death or serious
injury (93 percent), or non-
[[Page 71262]]
serious injury (7 percent) between 2000 and 2010. Further, incidental
takes of false killer whales of unknown stock origin within the Hawaii
Insular/Pelagic stock overlap zone are prorated using a model that
assumes that the density of the Hawaii Insular stock decreases and the
density of the Hawaii Pelagic stock increases with increasing distance
from shore (McCracken, 2010a). No genetic samples are available to
establish stock identity for these incidental takes within the Hawaii
Insular/Pelagic stock overlap zone, but both stocks are considered by
NMFS to be at risk of interacting with longline gear within this
region. Finally, incidental takes of unidentified cetaceans, known to
be either false killer whales or short-finned pilot whales (together
termed ``blackfish''), are determined using a formula that prorates
takes to the stocks based on their distance from shore (McCracken,
2010a). Proration of false killer whales takes within the overlap zone
and of unidentified blackfish introduces additional, yet unquantified,
uncertainty into the bycatch estimates, but until methods of
determining stock identity for animals observed incidentally taken
within the overlap zone are available, and all animals taken can be
identified to species (e.g., photos, tissue samples), this approach
ensures that potential impact to all stocks are assessed and accounted
for.
Based on these bycatch analyses, estimates of annual and 5-year
average annual incidental M&SI of false killer whales, by stock and
U.S. EEZ area, are presented in the draft 2012 SAR (Carretta et al.,
2012a). The estimate for the Hawaii Pelagic stock occurring inside the
U.S. EEZ around Hawaii was 13.6 false killer whales per year (CV = 0.3)
in the deep-set fishery and 0.2 in the shallow-set fishery, for a total
of 13.8 false killer whales per year (CV = 0.3). Using data from 2006-
2010, the mean estimated annual incidental M&SI of false killer whales
in the Hawaii Pelagic stock occurring outside of the U.S. EEZ was 11.2
(CV = 0.3) in the deep-set fishery and 0.1 in the shallow-set fishery,
for a total of 11.3. The mean estimated annual incidental M&SI of false
killer whales in the Hawaii Insular stock was 0.5 false killer whales
per year (CV = 1.7) in the deep-set fishery and 0 false killer whales
per year in the shallow-set fishery.
Goals of the FKWTRP
Incidental M&SI of the Hawaii Pelagic and Hawaii Insular stocks of
false killer whales in the Hawaii-based longline fisheries is known to
exceed the stocks' PBR levels (Carretta et al., 2012a). The short-term
goal of the FKWTRP is to reduce, within six months of its
implementation, M&SI of the Hawaii Pelagic and Hawaii Insular stocks of
false killer whales incidental to the Hawaii-based longline fisheries
occurring within the U.S. EEZ around Hawaii to less than the stocks'
PBR levels of 9.1 and 0.3 false killer whales per year, respectively
(Carretta et al., 2012a).
The Hawaii Pelagic stock is a transboundary stock that inhabits
waters both within and outside of the U.S. EEZ around Hawaii; however,
the extent of the stock's range into the high seas is unknown. The
Hawaii-based longline fisheries operate both within the U.S. EEZ and on
the high seas, and incidental M&SI of the Hawaii Pelagic stock of false
killer whales have been documented both within the U.S. EEZ and on the
high seas. Better information on the full geographic range of this
stock and bycatch estimates in international fisheries are needed to
better understand the impacts of false killer whale incidental takes on
the high seas. However, these information gaps do not affect the Hawaii
Pelagic false killer whale stock's designation as ``strategic'' (i.e.,
the level of human-caused mortality exceeds the stock's PBR level; 16
U.S.C. 1362(19)(A)). To ensure that conservation measures of the FKWTRP
would not simply displace fishing effort and its corresponding impacts
on the Hawaii Pelagic false killer whale from the U.S. EEZ to the high
seas, a goal of the FKWTRP is that incidental M&SI of the high seas
component of the Hawaii Pelagic stock does not increase above current
levels (i.e., 11.2 false killer whales per year, as of the draft 2012
SAR, Carretta et al., 2012a).
The long-term goal of the proposed FKWTRP is to reduce, within five
years of its implementation, the incidental M&SI of the Hawaii Pelagic
and Hawaii Insular stocks of false killer whales to insignificant
levels approaching a zero mortality and serious injury rate (i.e., less
than 10 percent of their respective PBR levels), as determined under 50
CFR 229.2.
Components of the FKWTRP
The final FKWTRP includes both regulatory and non-regulatory
measures, as well as a suite of research recommendations. While the
primary focus of the FKWTRP involves the Hawaii-based deep-set longline
fishery, there are measures and research that apply to other fisheries
known or suspected to interact with false killer whales.
NMFS believes the suite of measures described below are currently
appropriate for meeting the goals of the FKWTRP, but anticipates that
new information on the biology, distribution, abundance, and stock
structure of false killer whales, as well as on the extent and nature
of interactions between commercial fisheries and false killer whales,
will become available in the future. Similarly, future innovations in
fishing gear and/or fishing methods may change the extent and nature of
interactions between commercial fisheries and false killer whales. As
such, NMFS and the Team agreed to evaluate the success of the final
FKWTRP at periodic intervals over the next several years, and to
consider amending the FKWTRP, if warranted, based on the results of
ongoing monitoring, research, and evaluation.
NMFS incorporated nearly all of the Team's consensus
recommendations from the Draft FKWTRP into the proposed and final
FKWTRP, with some modifications. Changes from the Team's consensus
recommendations are noted, along with the rationale for any changes.
The Team also discussed other mitigation and conservation measures that
were not included in their consensus recommendations for various
reasons (e.g., did not meet MMPA goals). Information on these can be
reviewed in the Draft FKWTRP (FKWTRT, 2010). Finally, the Team made
additional recommendations regarding the shortline and kaka line
fisheries, other fisheries, and foreign fisheries that are outside the
scope of this rulemaking. Those recommendations are not part of this
final FKWTRP, but may be informative for future Team deliberations.
Those detailed recommendations can be found in section 8.4 of the Draft
FKWTRP (FKWTRT, 2010).
Regulatory Measures
NMFS issues the following FKWTRP regulatory measures under MMPA
authority:
1. Require the use of circle hooks that have a maximum wire
diameter of 4.5 mm (0.177 in), 10 degree offset or less, containing
round (non-flattened) wire that can be measured with a caliper or other
appropriate gauge in the Hawaii-based deep-set fishery;
2. Establish a minimum 2.0 mm (0.079 in) diameter for monofilament
leaders and branch lines, and a minimum breaking strength of 400 pounds
(181 kg) for any other material used in the construction of a leader or
branch line in the Hawaii-based deep-set longline fishery;
3. Establish a longline exclusion zone around the MHI that is
closed to longline fishing year-round; the 282,796 km\2\ (82,450
nmi\2\) area has the same
[[Page 71263]]
name and boundary as the February-September boundary of the MHI
Longline Prohibited Area described in 50 CFR 665.806(a)(2);
4. Expand the content of the existing, mandatory Protected Species
Workshop for the Hawaii-based longline fishery to include new
information on marine mammal interaction mitigation techniques;
5. Require a NMFS-approved marine mammal handling and release
informational placard to be posted onboard all Hawaii-based longline
vessels;
6. Require the captain of the longline vessel to supervise the
handling and release of any hooked or entangled marine mammal;
7. Require a NMFS-approved placard that instructs the vessel crew
to notify the captain in the event of a marine mammal interaction be
posted onboard all Hawaii-based longline vessels; and
8. Establish a ``Southern Exclusion Zone'' (SEZ) that will be
closed to the commercial Hawaii-based deep-set longline fishery for
varying periods of time whenever specific levels of serious injuries or
mortalities of false killer whales are observed within the U.S. EEZ
around Hawaii.
Additionally, under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA), NMFS is revising the regulations
in 50 CFR 665.806 prescribing the existing MHI longline fishing
prohibited area by removing the seasonal boundary change. This action
will align the boundaries of the MHI longline prohibited area with
those of the prohibited area established under this FKWTRP, and is
necessary to ensure that existing regulations applicable to the
management of the longline fishery are consistent with the requirements
of the FKWTRP and the MMPA (see measure 3. above).
These measures are more fully described below.
1. Hook Requirements
Shape. NMFS is requiring that vessels on declared deep-set trips
must use only circle hooks, as recommended by the Team and proposed by
NMFS. Analysis of observer data and predictive simulations indicate
that the exclusive use of circle hooks in the deep-set longline fishery
would likely reduce the number of false killer whale incidental takes
(i.e., prevent some hookings) by approximately 6 percent, and may
reduce the severity of injuries following interactions (FKWTRT, 2010;
Forney et al., 2011). Circle hooks are also generally weaker (i.e.,
straighten with less force) than the Japanese-style tuna hooks used by
a portion of the longline fleet, so some false killer whales that are
hooked in the lip, jaw, body, or flukes may be able to pull free more
easily (i.e., straighten the hook) if tension is placed on the line.
Thus, the required use of circle hooks may further reduce the number of
incidental M&SI of false killer whales in the deep-set longline
fishery.
Size. This final rule does not include a specification of size for
circle hooks in the deep-set fishery. NMFS is concerned that the
maximum size specification of 16/0 that was proposed by NMFS would
preclude the use of larger circle hooks (e.g., size 18/0) that are
known to be effective in reducing bycatch of other protected species,
such as sea turtles, in other fisheries. Currently there is no
information to indicate that use of smaller circle hooks results in
injuries to false killer whales that are less serious compared to
larger circle hooks. See comment/response 31 for more details.
Wire diameter. NMFS proposed the required use of ``weak'' circle
hooks in the deep-set fishery. ``Weak'' hooks exploit the size and
weight disparity between the fishery's target species and other
species, and promote the release of larger, non-target or bycatch
species (Bigelow et al., 2011). In this case, hooks are expected to be
strong enough to retain target bigeye tuna catch, but should bend and
straighten under the pull strain of a hooked false killer whale,
allowing the animal to release itself and thereby reduce the severity
of the animal's injury.
Wire diameter is one characteristic of a hook that contributes to
its strength. During the development of the Draft and proposed FKWTRPs,
NMFS and the Team understood that the ``standard'' wire diameter of
circle hooks used in the deep-set fishery was 4.5 mm (0.177 in), based
on the information available at that time. Based on this understanding,
the Team concluded that the use of circle hooks of 4.0 mm (0.157 in) or
4.2 mm (0.165 in) would provide even greater conservation benefits,
because a false killer whale may be able to more easily straighten and
release itself from a weaker hook, possibly resulting in less serious
injuries. The Team recommended the required use of circle hooks with a
maximum wire diameter of 4.0 mm (0.157 in), if a new research study was
conducted and showed that the weaker hooks had no significant negative
impacts on the retention of target species catch. If the analysis
demonstrated that the use of 4.0 mm (0.157 in) hooks will have a
substantial impact on tuna catch rates, the Team recommended additional
trials to test whether 4.2 mm (0.165 in) hooks would have a substantial
impact on tuna catch rates. NMFS, in collaboration with the longline
industry and other partners, conducted the research in October-December
2010 and found no significant impact to target catch of circle hooks
with wire diameter of 4.0 mm (0.157 in) compared to 4.5 mm (0.177 in)
(Bigelow et al., 2011). NMFS did not conduct trials with 4.2 mm (0.165
in) hooks. The Team's recommendations and the results of the study
formed the basis of NMFS' proposed requirement that the wire diameter
of circle hooks in the deep-set longline fishery must not exceed 4.0 mm
(0.157 in).
Two significant issues regarding the wire diameter requirement were
raised during the public comment period. First, commenters and Team
members emphasized that the Bigelow et al. (2011) study was not
adequate to determine the potential effects of the weak hooks in the
deep-set fishery. Specifically, commenters noted that the study was not
conducted during the time of year when the largest bigeye tuna are
historically caught, and the fish caught during the study period were
substantially smaller than fish caught during that same time frame in
previous years. Thus, they argued, the study was not able to confirm
that larger bigeye tuna could be retained on the 4.0 mm (0.157 in) wire
diameter hooks. Follow-up analysis by Bigelow (2012) confirmed the
seasonality effect of size and value of bigeye tuna in the fishery.
Based on these findings, NMFS does not have sufficient data to
determine whether the proposed weak hooks would have a significant
impact on target catch throughout the year.
Second, NMFS received new information during the public comment
period that indicates that the use of 4.5 mm (0.177 in) wire diameter
circle hooks in the deep-set fishery is not as widespread as was first
believed during the development of the Team's recommendations and NMFS'
proposed FKWTRP, and therefore is not representative of an industry
``standard.'' NMFS confirmed this information by contacting major hook
suppliers for the deep-set fishery. Information was obtained for
approximately 80 percent of the vessels in the deep-set fishery. Only
an estimated 20 percent of those vessels are believed to be using size
15/0 or smaller circle hooks with wire diameter of 4.5 mm (0.177 in) or
less; the remaining 80 percent are believed to be using circle hooks
with a larger wire diameter (e.g., size 16/0 circle hooks with 4.7 mm
(0.185 in) or 5.0 mm (0.197 in) wire
[[Page 71264]]
diameter), or are using tuna or J hooks. Therefore, the majority of
hooks currently in use are of larger wire diameter, and are therefore
likely stronger, than what was believed to be the ``standard'' wire
diameter for circle hooks in the deep-set fishery.
The Team's consensus recommendation was that while ``standard''
circle hooks (14/0, 15/0, 16/0; 4.5mm wire diameter) alone will likely
help reduce M&SI compared to tuna and J hooks, weaker than standard
circle hooks (i.e., those with a smaller wire diameter, such as 4.0 mm
(0.157 in) or 4.2mm (0.165 in)) would provide even greater conservation
benefits. We agree. However, as indicated above, the Team's
recommendation was based on the assumption at the time that the
standard diameter in use by the industry was 4.5 mm (0.177 in), rather
than the more commonly used 4.7 mm (0.185 in) or 5.0 mm (0.197 in).
Accordingly, while we agree with the Team's findings, NMFS will require
a fleet-wide shift to 4.5 mm (0.177 in) wire diameter for circle hooks,
so as to achieve a comparable reduction in hook wire diameter based on
the corrected information.
In summary, NMFS has insufficient information to support the
required use of circle hooks with 4.0 mm (0.157 in) wire diameter at
this time. In response to information received or obtained during the
public comment period, NMFS is revising the regulations to specify a
maximum wire diameter of 4.5 mm (0.177 in). NMFS believes this
requirement will provide a conservation benefit by reducing false
killer whale serious injuries because the weaker hook is more easily
straightened to release the animal. NMFS also believes that this
reduction in wire diameter from the 4.7 mm (0.185 in) or 5.0 mm (0.197
in), used by an estimated 80% of the industry, to 4.5 mm most closely
approximates the recommendation of the Team and the proposed FKWTRP
after accounting for updated information on the hook wire diameters in
the industry.
Other specifications. The Team recommended and NMFS proposed that
hook shanks must be made of round (non-flattened) wire to allow for
enforcement of the proposed wire diameter regulation. We understand,
based on public comment (see comment/response 33), that there is a
large variety of hooks with flattened sections of wire that otherwise
may satisfy the requirements of this measure. Accordingly, NMFS is not
requiring that the entire hook shank be composed of round wire.
Instead, NMFS is requiring that hook shanks contain round (non-
flattened) wire that can be measured with a caliper or other gauge.
Final regulation. NMFS is requiring that deep-setting vessels use
circle hooks with a wire diameter not to exceed 4.5 mm (0.177 in), and
containing round (non-flattened) wire that can be measured with a
caliper or other appropriate gauge, and with a 10-degree offset or
less. Any hook not meeting the requirement would not be allowed to be
used on deep-set trips, though other hooks may be on board the fishing
vessel if stowed and unavailable for use.
This new regulation will be codified in the take reduction plan
regulations at 50 CFR Part 229, rather than 50 CFR 665.813 as proposed.
NMFS has consolidated all FKWTRP regulations in 50 CFR part 229 to more
clearly reflect the authority under which the regulations have been
promulgated.
2. Minimum Monofilament Diameter Requirement for Branch Lines and
Leaders
Observer data indicate that monofilament used in leaders and branch
lines may break during marine mammal hookings and entanglements, which
causes animals to be released with often substantial amounts of gear
still attached. According to the criteria NMFS uses to determine injury
severity, small cetaceans released with gear attached that has the
potential to wrap around pectoral fins/flippers, peduncle, or head; be
ingested; or accumulate drag would be considered seriously injured
(NMFS Policy Directive PD 02-238). The Team believes that if the
fishery used leaders and branch lines that were strong relative to the
hook strength, during a marine mammal hooking or entanglement,
fishermen could place tension on the line to allow the animal to
straighten the hook without breaking the branch line. Or, fishermen
could bring the animal close to the vessel for disentanglement and/or
de-hooking attempts without breaking the branch line. Therefore the
Team recommended and NMFS is requiring that any monofilament line used
in branch lines or leaders in the deep-set fishery must be 2.0 mm
(0.079 in) or larger in diameter. This diameter monofilament line has a
breaking strength of approximately 400 pounds (181 kg). Any other
materials used in branch lines or leaders must have a breaking strength
of 400 pounds (181 kg) or greater. The intent of this measure is that
the gear be assembled and maintained such that the hook is the weakest
component of the terminal tackle. It is expected that this regulation
will reduce the number of false killer whale serious injuries.
This new regulation is added to the take reduction plans at 50 CFR
Part 229, rather than 50 CFR 665.813 as proposed. NMFS has consolidated
all FKWTRP regulations in 50 CFR part 229 to more clearly reflect the
authority under which the regulations have been promulgated.
3. Main Hawaiian Islands Longline Fishing Prohibited Area
An existing longline exclusion zone prohibits longline fishing
year-round around the MHI (50 CFR 665.806(a)(2)). The exclusion zone
was created in 1992 to prevent gear conflicts between longline
fisheries and pelagic troll and handline fisheries (57 FR 7661, March
2, 1992). The outer extent of the boundary changes seasonally to allow
longline fishing to occur closer to the windward shores of the MHI
between October and January (WPRFMC, 2009). This seasonally open area
covers 71,384 km\2\ (20,812 nmi\2\).
The seasonally open area is within the area of overlap between the
Hawaii Insular and Hawaii Pelagic stocks of false killer whales as
defined in the draft 2012 SAR (Carretta et al., 2012a), and incidental
M&SI of false killer whales and blackfish in the longline fisheries has
been documented there. Given that longline fishing in this area may
impact both false killer whale stocks, the Team recommended that NMFS
designate the seasonally open area as a ``Northern Exclusion Zone''
(NEZ), and close it to commercial longline fishing year-round. Such a
closure would effectively maintain the current boundary of the
February-September longline exclusion zone prohibitions throughout the
entire year.
NMFS proposed to implement the Team's recommendation by revising
the existing longline exclusion zone regulations to eliminate the
seasonal change in the boundary, rather than establishing a separate
NEZ closure area. NMFS received public comments on this proposed
change, including: (a) Confusion over the legal authority used to make
the change (i.e., MSA vs. MMPA); (b) concern that the different
regulatory purposes of the original closure (gear conflict) and the
proposed closure (false killer whale conservation) are not clear; and
(c) concern that including the closure only in 50 CFR part 665 and not
in FKWTRP regulations at 50 CFR part 229 could allow future changes to
the closure for fishery management purposes that would obviate the risk
reduction necessary for false killer whales. See comments/responses 3-5
and 38-41
[[Page 71265]]
below for more detail on these comments.
In this final rule NMFS is establishing a Main Hawaiian Islands
Longline Fishing Prohibited area (Figure 1) in FKWTRP regulations at 50
CFR part 229, bounded by the same coordinates as the existing February-
September longline exclusion zone. Longline fishing within this area is
prohibited year-round. This regulation makes it clear that the entire
Longline Fishing Prohibited Area around the MHI, not just the
seasonally open area to the north of the MHI, is important for false
killer whale conservation. It is anticipated that this closure will
substantially reduce the risk that the deep- and shallow-set longline
fisheries pose to the Hawaii Insular stock of false killer whales,
because longline fishing is now prohibited from the Hawaii Insular
stock's entire ``core'' range and a large portion of the stock's
``extended'' range. It is also expected to eliminate incidental M&SI of
the Hawaii Pelagic stock of false killer whales by longline fisheries
in that area.
As previously indicated, the MHI Longline Fishing Prohibited Area
was established in 50 CFR 665.806(a) under MSA authority. NMFS is using
its authority under MSA section 305(d) to revise the existing
regulations in 50 CFR 665.806(a)(2) for the MHI Longline Fishing
Prohibited Area to eliminate the seasonal boundary change. This action
is necessary to ensure that fisheries management regulations remain
consistent with all applicable laws and regulations, including MMPA and
the FKWTRP regulations.
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4. Required Annual Certification in Marine Mammal Interaction
Mitigation Training
The Team recommended that NMFS develop and implement a mandatory,
annual certification program to educate owners and operators of Hawaii-
based longline vessels about ways to reduce incidental M&SI of marine
mammals. The Team that believes specific training would significantly
increase the potential for captains and crew to free hooked or
entangled false killer whales from gear in a manner that would reduce
the severity of the injury (FKWTRT 2010). The Team recommended that
NMFS expand the existing Protected Species Workshops, required under 50
CFR 665.814, to incorporate additional information regarding marine
mammal interactions.
NMFS is implementing the Team's recommendation, as proposed. Under
existing regulations for western Pacific pelagic fisheries (50 CFR
665.814,
[[Page 71266]]
Protected Species Workshop), owners and operators of all western
Pacific pelagic longline vessels must successfully complete a workshop
each year, and a valid workshop certificate is needed for owners to
maintain or renew permits and for operators at sea. Sea turtle and
seabird handling is specified in these regulations; there is no
regulatory requirement for training in marine mammal handling. However,
since 2004, NMFS has incorporated training on marine mammal
identification, careful handling and release techniques, and an
overview, as well as an explanation, of the purpose and justification
for marine mammal bycatch reporting requirements that apply to the
longline fisheries into these workshops. NMFS has expanded the content
of the in-person workshops in consultation with the Team, and will
continue to update the content as appropriate to meet the needs of the
FKWTRP. The online version of the workshop will be revised to include
the updated marine mammal content as soon as possible.
To ensure that the marine mammal component is maintained by
regulation as part of the workshops, NMFS is adding the requirement for
certification to the take reduction plan regulations at 50 CFR part
229, under MMPA authority.
5. Marine Mammal Handling and Release Guidelines Posting Requirement
The Team recommended, and NMFS is requiring, that all longline
vessels in the Hawaii-based fleet must post a NMFS-approved marine
mammal handling and release informational placard onboard in a location
where it would be visible to the captain and crew. NMFS believes this
action will facilitate the careful handling and release of marine
mammals incidentally hooked or entangled during longline fishing,
including false killer whales, other small cetaceans, and large whales.
This requirement is specified in the take reduction plan regulations at
50 CFR part 229.
6. Requirement for Captains' Supervision of Marine Mammal Interactions
As noted above (see ``4. Required Annual Certification in Marine
Mammal Interaction Mitigation''), longline vessel captains are required
to attend and be certified annually in protected species interaction
mitigation techniques (50 CFR 665.814). NMFS has expanded the content
of these workshops to include more specific training in marine mammal
handling and release. Vessel crew members are not required to receive
certification. Therefore, the captain may be the only person on the
vessel trained in marine mammal handling and release protocols,
particularly on trips without an observer. However, the Team noted that
captains may not always be on deck while the gear is being hauled and
thus may not observe or be aware of marine mammal hooking or
entanglement events. The Team recommended, and NMFS is requiring, that
the captain of each longline vessel supervise the handling and release
of any hooked or entangled marine mammal. The captain does not
necessarily need to be on deck, but could, for example, oversee and
direct specific actions from the wheelhouse, so long as the captain at
all times maintains effective communications with and oversight of the
crew. This requirement is specified in the take reduction plan
regulations at 50 CFR part 229.
7. Captain Notification Placard Posting Requirement
At the Team's recommendation, NMFS developed a placard that
instructs the vessel crew to notify the captain immediately if a marine
mammal is hooked or entangled. The Team recommended, and NMFS is
requiring, that all longline vessels in the Hawaii-based fleet must
post this NMFS-approved placard onboard in a location where it would be
visible to the crew. It is expected that this measure will facilitate
crew notification of the captain, thereby ensuring the captain is aware
of any marine mammal interactions and supervises the handling and
release, as required above in ``6. Requirement for Captains'
Supervision of Marine Mammal Interactions''. This requirement is
specified in the take reduction plan regulations at 50 CFR part 229.
8. Southern Exclusion Zone Closure
In this final rule, NMFS is establishing a ``Southern Exclusion
Zone'' (SEZ) that will be closed to deep-set longline fishing upon
reaching a specified threshold level (or ``trigger'') of observed false
killer whale mortalities or serious injuries inside the U.S. EEZ around
Hawaii within a given fishing year. NMFS considered and rejected the
use of final, annual extrapolated M&SI estimates because of the risk
that PBR would be exceeded in a given fishing year once those estimates
became available. By using observed incidental M&SI, NMFS will be able
to make real-time management decisions concerning the fishery to close
the SEZ if incidental M&SI exceeds PBR in any given year, and prevent
further exceedance.
The SEZ is bounded on the east at 154[deg] 30' W. longitude, on the
west at 165[deg] W. longitude, on the north by the MHI Longline Fishing
Prohibited Area and the Papahanaumokuakea Marine National Monument, and
on the south by the U.S. EEZ boundary (Figure 1). The SEZ covers
386,122 km\2\ (112,575 nmi\2\), that if closed, would reduce the area
available to longline fishing within the U.S. EEZ around Hawaii by
approximately 17 percent.
NMFS received public comments raising numerous issues with the
proposed SEZ provisions (see comments/responses 42-65). Several
commenters urged NMFS to reconsider implementing the SEZ measures
recommended by the Team, as described in the Draft FKWTRP (FKWTRT,
2010). In response to these comments and in developing this final rule,
NMFS reevaluated the Team's recommendations, particularly in light of
the newly calculated PBR for the Hawaii Pelagic stock in the draft 2012
SAR (Carretta et al., 2012a). The Team originally recommended a trigger
for closing the SEZ that was the greater of two values: (1) Two
observed false killer whale serious injuries or mortalities in the
deep-set fishery inside the U.S. EEZ around Hawaii; or (2) the number
of observed false killer whale serious injuries or mortalities inside
the U.S. EEZ around Hawaii that, when extrapolated based on the
percentage observer coverage for that year, is greater than PBR
(FKWTRT, 2010). The triggers were designed to be flexible to a changing
PBR once new abundance estimates became available and if there were
future changes to PBR. NMFS considered the Team's recommended minimum
trigger of two observed M&SI, and was concerned that it may not achieve
adequate reductions in M&SI, as required under MMPA section 118. The
recommended minimum trigger of two observed M&SI (which roughly
extrapolates to 10 M&SI fleet-wide per year with 20 percent observer
coverage) would have allowed PBR (2.5 at the time the Draft FKWTRP was
developed and the proposed FKWTRP was published), to be exceeded by a
factor of four before a consequence closure of the SEZ. This was not
consistent with MMPA section 118 requirements that the Plan should be
effective in reducing M&SI to below PBR, and eventually to
insignificant levels, even when considered together with other measures
in the Plan.
In the proposed rule, NMFS proposed modifications to the Team's
recommended SEZ trigger to address the issue of PBR exceedance. We
recognized that, given the PBR of 2.5, even a single
[[Page 71267]]
observed mortality or serious injury in a year (which extrapolates to 5
M&SI at 20 percent observer coverage) would be double the PBR value.
Therefore, we proposed to manage M&SI across a longer time frame. We
calculated that allowable level of M&SI across five years (i.e., five
times PBR), converted this number to allowable observed M&SI across
five years (by multiplying by the observer coverage level), and rounded
down to the nearest whole number. We proposed this value as an
``initial'' trigger, thereby ``front-loading'' five years' worth of
M&SI into a single year. If the initial trigger was met within a given
year, the SEZ would be closed for the remainder of the year. Then, if a
single additional mortality or serious injury was observed in any of
the following four years of that five-year timeframe, the 5-year PBR
would be exceeded, so the SEZ would again be closed, until reopened by
NMFS.
Public comments raised several issues with the proposed SEZ
trigger. The primary concern was that levels of M&SI below the
``initial'' trigger level could exceed PBR, in single years but
particularly across consecutive years, without triggering closure of
the SEZ. Commenters also noted that the ``initial'' trigger is based on
the PBR value at the time the trigger was set, but the trigger for the
subsequent four years of the five-year timeframe (1 observed mortality
or serious injury) cannot be changed even if PBR were to change during
those four years.
In developing this final rule, NMFS considered options for
modifying the SEZ measures to address issues raised in public comments.
As part of this process, NMFS reevaluated the Team's recommended
trigger, particularly in light of the new PBR of 9.1 for the Hawaii
Pelagic stock, as calculated in the draft 2012 SAR (Carretta et al.,
2012a). We note that our initial concerns regarding the Team's minimum
trigger have been addressed by the larger PBR value. That is, the
Team's recommended minimum trigger of two observed M&SI (which
extrapolates to an estimated 10 M&SI fleet-wide based on 20 percent
observer coverage) would result in closure of the SEZ immediately after
the observed mortality or serious injury that caused PBR to be
exceeded. NMFS considers this an appropriate consequence for exceeding
PBR and preventing further PBR exceedance.
In this final rule, NMFS is implementing an SEZ measure that more
closely conforms to the Team's consensus recommendations described in
the Draft FKWTRP (FKWTRT, 2010). In doing so, we remain concerned that
the Team's recommendation might not adequately protect false killer
whales under all factual scenarios if PBR were to be lower, for reasons
explained above (i.e., the minimum trigger of two observed M&SI was too
large, and would have allowed potentially high levels of PBR exceedance
without a consequence closure of the SEZ). A reduced PBR for the Hawaii
Pelagic stock is possible in the future, particularly to account for
the survey's vessel attraction effect, as more fully discussed in the
draft 2012 SAR (Carretta et al., 2012a). Accordingly, NMFS will
continue to evaluate and consult with the Team on refinements to the
SEZ trigger/closure that help respond to potential changes in PBR. If
future refinements are necessary, they will be implemented by
appropriate rulemaking.
The following paragraphs describe steps NMFS will take when
determining whether to prohibit deep-set longline fishing in the SEZ.
There are different procedures depending on whether there was a closure
of the SEZ in the previous year. These steps closely approximate those
outlined by the Team in the Draft FKWTRP.
a. Defining the trigger. The trigger is defined as the larger of
these two values: (i) two observed M&SI of false killer whales by the
deep-set fishery within the U.S. EEZ around Hawaii; or (ii) the
smallest number of observed M&SI of false killer whales by the deep-set
fishery within the U.S. EEZ around Hawaii that, when extrapolated based
on the percentage observer coverage for that year, exceeds PBR. This
trigger accounts for possible changes in observer coverage and PBR in
future years under the FKWTRP. Therefore, under the first threshold,
the minimum trigger is two. For the second threshold to be applicable
(i.e., a trigger larger than two), PBR would need to be 10 or greater,
given current levels of observer coverage (20 percent). If PBR were
less than 10, two observed M&SI, when extrapolated based on observer
coverage (10 animals), would exceed PBR. Since M&SI cannot exceed PBR,
under this example the trigger would remain at two under the first
threshold. If, on the other hand, PBR was determined to be 10 or
greater, two observed M&SI, when extrapolated (10 animals based on
observer coverage), would be less than or equal to PBR, so the trigger
could be increased until M&SI exceeds PBR.
NMFS is specifying the trigger definition in the FKWTRP regulations
and establishing the trigger value for this first year of FKWTRP
implementation as two observed false killer whale mortalities or
serious injuries by the deep-set longline fishery within the U.S. EEZ
around Hawaii. This trigger value (two) will remain valid until NMFS
publishes a new trigger value in the Federal Register. For example, if
observer coverage in the deep-set fishery or PBR for the Hawaii Pelagic
stock changes substantially enough to increase the trigger value
(calculated as outlined in the paragraph above), NMFS would publish a
new trigger value in a Federal Register notice.
There are three important considerations regarding the trigger
calculations. First, the extrapolated estimates of false killer whale
M&SI described in this section are calculated for purposes of
implementing the SEZ only, and do not represent the official bycatch
estimates for false killer whales in the fishery. The official bycatch
estimates are calculated by separate methods and are presented in the
annual SARs. Second, as the Team recommended and NMFS proposed, the
trigger applies only to the Hawaii Pelagic stock of false killer whales
given the stock's strategic status and the location of the closure.
Although the Hawaii Insular stock is also strategic, closure of the SEZ
would have very little effect on the stock because the SEZ is almost
entirely outside the Hawaii Insular stock's range. For the purposes of
implementing SEZ measures, any false killer whale incidentally taken
inside the U.S. EEZ around Hawaii is assumed to be part of the Hawaii
Pelagic stock, unless the animal could be positively identified as
belonging to the Hawaii Insular stock through photo-identification or
genetic analysis of a tissue sample. This is true even of false killer
whales taken in the Hawaii Pelagic/Insular stock overlap zone. Those
animals would be prorated for assignment to the stocks in the official
bycatch estimates, but for purposes of implementing the SEZ, the
animals cannot be prorated. Third, only observed serious injuries or
mortalities would be counted toward the trigger, while injuries
determined to be non-serious would not. The expedited process for
serious injury determinations is described below (see ``3. Expedite
False Killer Whale Serious Injury Determinations'' under ``Non-
Regulatory Measures'').
b. Procedures when no SEZ closure effective in previous year. For
the first year of FKWTRP implementation, and in years in which the SEZ
was not closed in the previous year, the following three steps i.
through iii. will be applied for the current year:
i. M&SI below the trigger. After each false killer whale mortality
or serious
[[Page 71268]]
injury in the deep-set longline fishery inside the U.S. EEZ around
Hawaii that is below the established trigger in a given fishing year,
NMFS will notify the Team. Following the last mortality or serious
injury before the trigger is met, NMFS will also convene the Team by
teleconference to discuss the circumstances of the event. For example,
if the trigger were three, NMFS would notify the Team of the first
mortality or serious injury, and would convene the Team by
teleconference after the second observed mortality or serious injury.
ii. M&SI that meets the trigger. If there is an observed false
killer whale mortality or serious injury in the deep-set longline
fishery inside the U.S. EEZ around Hawaii that meets the established
trigger for a given fishing year, NMFS will close the SEZ until the end
of that calendar year, and then convene the Team for a meeting. NMFS
would reopen the SEZ at the beginning of the next calendar year. The
availability of funding may limit NMFS' ability to convene the Team for
an in-person meeting; however, NMFS would convene the Team by
teleconference or other efficient means until funding becomes available
for an in-person meeting. Regardless of whether NMFS has convened an
in-person Team meeting, NMFS would reopen the SEZ at the beginning of
the next year.
If a closure of the SEZ is triggered, NMFS will notify the fishery
and close the area for the specified time period (the rest of the
calendar year) through a Federal Register notice. The notice will
announce that the fishery will be closed beginning at a specified date,
which is not earlier than 7 days and not later than 15 days, after the
date of filing the closure notice for public inspection at the Office
of the Federal Register. The notice will include the specifics of the
closure, as well as when and how the SEZ would be reopened.
iii. M&SI after the SEZ is closed. Additional mortalities or
serious injuries of false killer whales in the deep-set longline
fishery in the U.S. EEZ after the SEZ is closed may warrant review of
FKWTRP implementation or effectiveness. Therefore, if during the same
calendar year following closure of the SEZ, there is an observed false
killer whale mortality or serious injury on a deep-set longline trip
anywhere in the U.S. EEZ around Hawaii, then NMFS would again convene
the Team to discuss the circumstances of the event and consider the
effectiveness of the SEZ closure and the overall FKWTRP. The Team may
be convened by teleconference or other efficient means.
c. Procedures when SEZ was closed during the previous year. If the
SEZ was closed for any part of the previous year as per step b., the
following procedures i. and ii. apply for the current year:
i. M&SI below the trigger. Consistent with the procedures in step
b. above, after each false killer whale mortality or serious injury in
the deep-set longline fishery inside the U.S. EEZ around Hawaii that is
below the established trigger in a given fishing year, NMFS will notify
the Team. Following the last mortality or serious injury before the
trigger is met, NMFS will also convene the Team by teleconference to
discuss the circumstances of the event. For example, if the trigger
were three, NMFS would notify the Team of the first mortality or
serious injury, and would convene the Team by teleconference after the
second observed mortality or serious injury.
ii. M&SI that meets the trigger. If there is an observed false
killer whale mortality or serious injury in the deep-set longline
fishery inside the U.S. EEZ around Hawaii that meets the established
trigger for a given fishing year, NMFS will close the SEZ, and then
convene the Team for an in-person meeting. NMFS would reopen the SEZ if
specific criteria were met (see step d. below). The availability of
funding may limit NMFS' ability to convene the Team for an in-person
meeting; NMFS may convene the Team by teleconference or other efficient
means until funding becomes available for an in-person meeting.
If a closure of the SEZ is triggered, NMFS will notify the fishery
and close the area through a Federal Register notice. The notice will
announce that the fishery will be closed beginning at a specified date,
which is not earlier than 7 days and not later than 15 days, after the
date of filing the closure notice for public inspection at the Office
of the Federal Register. The notice will include the specifics of the
closure, as well as conditions NMFS will consider in determining when
and how to reopen the SEZ, as set forth below.
d. Reopening the SEZ. If the SEZ were closed as per step c., NMFS
would reopen the SEZ if one or more of the following criteria were met:
i. NMFS determines, after considering the Team's recommendations
and all relevant circumstances that continued closure of the SEZ is not
warranted, or otherwise does not serve the objectives of the FKWTRP.
Such circumstances might include: The mortality or serious injury was a
result of non-compliance with gear requirements, rather than an
indication that the existing FKWTRP measures were ineffective; evidence
of increased M&SI in other areas, for example, in areas outside the SEZ
but within the U.S. EEZ around the Hawaiian Archipelago, or on the high
seas in close proximity to the EEZ; evidence of increased interactions
with other protected species outside the SEZ; etc.;
ii. In the two-year period immediately following the date of the
SEZ closure, the deep-set longline fishery has zero observed false
killer whale incidental M&SI within the remaining open areas of the
U.S. EEZ around Hawaii;
iii. In the two-year period immediately following the date of the
closure, the deep-set longline fishery has reduced its total rate of
false killer whale incidental M&SI (including the U.S. EEZ around
Hawaii, the high seas, and the U.S. EEZ around Johnston Atoll (but not
Palmyra Atoll)) by an amount equal to or greater than the rate that
would be required to reduce false killer whale incidental M&SI within
the U.S. EEZ around Hawaii to below the stock's PBR at the time of the
closure (e.g., if the PBR for the Hawaii Pelagic stock inside the U.S.
EEZ around Hawaii was 9.1 at the time of the closure and average annual
false killer whale incidental M&SI in the deep-set fishery inside the
U.S. EEZ was 13.6, an approximately 33 percent reduction in estimated
incidental M&SI for the entire deep-set fishery would be necessary to
meet the threshold); or
iv. The average estimated level of false killer whale incidental
M&SI in the deep-set longline fishery within the remaining open areas
of the U.S. EEZ around Hawaii for up to the five most recent years
following implementation of the final FKWTRP is below the PBR for the
Hawaii Pelagic stock of false killer whales at that time.
NMFS is including these criteria in regulations. Once NMFS
determines that one or more of the criteria was met, NMFS would reopen
the SEZ through a Federal Register notice. Once the SEZ was reopened,
the procedures described in step b. would be followed.
Non-Regulatory Measures
NMFS is implementing the following six non-regulatory measures:
1. Increase the precision of bycatch estimates in the deep-set
longline fishery;
2. Notify the Team when there is an observed interaction of a known
or possible false killer whale, and provide the Team with any non-
confidential information regarding the interaction;
3. Expedite the process for confirming the species identification
of animals involved in such interactions and for making serious injury
determinations;
[[Page 71269]]
4. Make specific changes to the observer training and data
collection protocols;
5. Expedite processing the 2010 HICEAS II survey data and provide
preliminary results to the Team; and
6. Reconvene the Team at regular intervals.
Though these measures are part of the FKWTRP, they do not place
requirements on the longline fisheries and are not being implemented
through regulations. These non-regulatory measures are more fully
described below.
1. Increase Precision of Bycatch Estimates
NMFS currently requires that observer coverage in the deep-set
longline fishery be maintained at an annual level of at least 20
percent, as per the Terms and Conditions of the October 4, 2005
Endangered Species Act Biological Opinion on the deep-set longline
fishery (NMFS, 2005b). The Team recommended that NMFS increase observer
coverage in the deep-set longline fishery to at least a 25 percent
average quarterly coverage rate, provided the increase is funded by the
Federal government. Following submission of the Team's recommendations,
NMFS conducted an analysis to determine the potential benefit of such
an overall increase in observer coverage, in terms of how that coverage
increase would increase the precision (i.e., decrease the error) of the
bycatch estimate in the fishery. The analysis also evaluated the
benefit of that error reduction compared to the cost of the observer
coverage increase (McCracken and Boggs, 2010). This analysis found
diminishing improvement in the precision of the bycatch estimate when
moving from 20 to 25 percent overall coverage. NMFS does not believe
any incremental improvement in data precision justifies an increase to
25 percent coverage, given limitations on personnel and resources.
Therefore, NMFS is not increasing overall observer coverage in the
fishery, but may consider changes in future coverage if circumstances
warrant.
However, NMFS intends to implement an increase in systematic
observer coverage in the deep-set longline fishery (see the proposed
rule for a description of the Observer Program's sampling schemes,
including systematic and day sampling; 76 FR 42082, July 18, 2011).
This is based on the findings that ensuring systematic coverage is at a
minimum of 15 percent year-round provides a greater benefit in relation
to error reduction than a systematic sample increase from 15 percent to
20 percent, or an overall sample increase from 20 percent to 25 percent
(McCracken and Boggs, 2010). Day sampling will continue to be used to
meet the additional minimum of 5 percent to attain the targeted 20
percent coverage for the deep-set longline fishery. NMFS is working
with the observer contractor to reallocate observers and schedule
observer trainings appropriately to ensure enough observers are
available to meet the new sampling targets for the deep-set longline
fishery. NMFS has already begun to implement these changes. Future
changes to observer coverage remain subject to the availability of
appropriations, and NMFS may reallocate observer coverage at any time
based on operational requirements.
2. Notify the Team of Observed Interactions
The Team requested that NMFS notify the Team when there is an
observed interaction of a known or possible false killer whale, and
provide the Team with any non-confidential information regarding the
interaction. Some of this information is currently available through
PIROP's quarterly and annual reports, and non-confidential details on
each interaction are available in annual reports documenting serious
injury determinations. Because this information may be useful for the
Team as it considers the success of the management measures and
considers amendments, NMFS will expedite the internal processing and
approval of observer data on the trips where false killer whales or
possible false killer whales were injured or killed, and provide any
non-confidential information to the Team members for their
consideration as soon as practical after the event. NMFS has already
begun to implement these changes.
3. Expedite False Killer Whale Serious Injury Determinations
For purposes of implementing the FKWTRP, NMFS will expedite serious
injury determinations for false killer whales, as recommended by the
Team. In January 2012, NMFS finalized a national policy for
distinguishing serious from non-serious injury to marine mammals. The
policy describes a general annual process for making and documenting
injury determinations, and includes seven steps: (1) Initial injury
determination, (2) Determination Staff Working Group (comprising NMFS
Science Center staff) information exchange, (3) NMFS Regional Office
review, (4) report preparation, (5) NMFS Scientific Review Group
review, (6) report clearance (within each Science Center), and (7)
inclusion of injury determinations in the annual SAR and marine mammal
conservation management regimes (NMFS, 2012). This process is fairly
slow, and an expedited process is necessary to provide final serious
injury determinations closer to real-time to determine whether the
trigger for closing the SEZ has been met. The expedited process will
also assist the Team in monitoring the success of the FKWTRP in meeting
its short-term goal. NMFS will continue to implement the NMFS policy
and process for serious injury determinations for all marine mammal
interactions on an annual basis, but for false killer whale
interactions, NMFS will complete the following additional expedited
process on a case-by-case basis:
a. PIROP will prioritize the processing of trips with false killer
whale, blackfish, or unidentified cetacean interactions assuming any
possibility of being a false killer whale. PIROP will debrief the
observer and approve the marine mammal portions of the data as quickly
as possible following return of the vessel to port.
b. PIROP will send the approved data to the NMFS Pacific Islands
Fisheries Science Center (PIFSC) staff member who makes the marine
mammal serious injury determinations (i.e., ``determination staff''),
or his/her trained backup. The PIFSC determination staff will then
transmit the data to determination staff at the NMFS Southwest and
Southeast Fisheries Science Centers (SWFSC and SEFSC) who are familiar
with small cetacean injuries in longline fisheries.
d. Determination staff of the three Science Centers will conduct
independent review of the data according to the criteria in NMFS'
Serious Injury policy, and make preliminary injury determinations. The
staff will discuss these determinations and resolve any discrepancies.
e. The PIFSC determination staff will send the determination,
supporting data, and the rationale to the Pacific Scientific Review
Group (PSRG) and for review and concurrence. PIFSC will also provide
the information to the Team coordinator in the NMFS Pacific Islands
Regional Office (PIRO) Protected Resources Division (PRD), or a
designated backup who is familiar with the Serious Injury policy and
criteria, for review.
f. The PIFSC determination staff will consider PSRG feedback, and
make the final injury determination.
After these steps are completed, the injury determinations for
these cases
[[Page 71270]]
will be considered final and will be used for purposes of implementing
and monitoring the FKWTRP. These injury determinations will also be
considered final for use in the SAR and developing bycatch estimates.
4. Changes to Observer Data Collection Protocol and Training
In its deliberations, the Team relied heavily on analyses of
observer program data. The Team noted that specific information that is
not currently collected would be useful to support future Team
deliberations and to further understand and identify patterns of marine
mammal bycatch. The Team recommended that NMFS modify the observer data
forms to collect additional information, and also recommended changes
to observer training and observer protocol during and after marine
mammal interactions. NMFS is implementing the recommended changes, as
possible, through appropriate changes to the data collection forms,
observer protocol, and/or observer training, but notes that some of the
recommendations are already being implemented through existing data
forms, protocol, and training, as described in the proposed rule.
5. Hawaiian Islands Cetacean and Ecosystem Assessment Survey 2010 Data
NMFS conducted a cetacean assessment survey in the U.S. EEZ around
Hawaii (Hawaiian Islands Cetacean and Ecosystem Assessment Survey, or
HICEAS 2010) from August-December 2010. The survey was a collaborative
effort between the NMFS PIFSC and NMFS SWFSC, and involved 175 days at
sea on two NOAA research vessels. The Team recommended that NMFS
expedite the processing of the survey data and provide preliminary
results to the Team once the PSRG has completed its review. The Team
also recommended that the PSRG complete its review as expeditiously as
possible.
NMFS has completed an initial analysis of the HICEAS 2010 data
(Bradford et al., 2012) and incorporated the resulting false killer
whale abundance analysis into the draft 2012 SAR. NMFS has shared these
results with the Team. It is anticipated that updated abundance
estimates for all remaining Hawaiian cetaceans will be available in the
draft 2013 SARs. NMFS will share information on these updated analyses
with the Team as it becomes available.
6. Reconvene Team at Regular Intervals
The Team recommended that NMFS should reconvene the Team every six
months for at least two years following implementation of the FKWTRP,
and at appropriate intervals thereafter to continue to monitor the
progress of the FKWTRP in reaching its short- and long-term goals, and
discuss amending the FKWTRP if necessary. The availability of funding
may limit the frequency with which NMFS can reconvene the Team for in-
person meetings. Therefore, NMFS will reconvene the Team at regular
intervals for in-person meetings and/or teleconferences, depending on
available funding.
Additional Research and Data Collection
The Team developed a list of 35 research recommendations, which
were prioritized within and across four categories: False killer whale
biology; longline gear and fishing; shortline and kaka line fishing;
and false killer whale assessment. The Team also listed five additional
research topics that were not included in the ranked list. Details of
all of the recommended research topics can be found in Chapter 9 of the
Draft FKWTRP (FKWTRT 2010). The Team noted the iterative process
inherent in research and the need to maintain the list of research
priorities as a ``living document,'' with changes and additions
anticipated over the course of the take reduction process.
NMFS will pursue the additional research and data collection goals
outlined by the Team, within the constraints of available funding.
Further, NMFS will consider the Team's recommendations for additional
research and data collection when establishing NMFS' funding
priorities. NMFS will follow the recommendations to the extent that
good scientific practice and resources allow. As feasible and
appropriate, NMFS will consult and coordinate with the Team during this
process.
Monitoring and Measures of Success
The short-term and long-term goals of the FKWTRP are described
above (``Goals of the FKWTRP''), and are defined to meet the MMPA
requirements for reducing incidental false killer whale incidental
M&SI. The Team recognized that there may be other measures of success
of the FKWTRP, and identified measures of progress or success for
various components of the Draft FKWTRP. For example, measures include
fully implementing circle hooks in the deep-set longline fishery;
achieving zero false killer whale incidental M&SI in two years within
the U.S. EEZ around Hawaii; achieving a reduction of false killer whale
incidental M&SI consistent with the percentage needed to move below PBR
within the U.S. EEZ around Hawaii; reducing the false killer whale
incidental M&SI rate; and making progress in each of the four
identified research categories. NMFS, in consultation with the Team, is
developing a plan for monitoring the effectiveness of the FKWTRP that
incorporates many of these measures of success.
Comments on the Notice of Proposed Rulemaking and Responses
NMFS received 86 comments on the proposed rule from the State of
Hawaii's fishery management agency (Department of Land and Natural
Resources (DLNR)), the Marine Mammal Commission (MMC), the Western
Pacific Fishery Management Council (Council), environmental
organizations, commercial fishing organizations, commercial fishermen,
and interested members of the public. Of those, 68 were identical, or
slightly modified, form letters expressing support for the proposed
rule, and 18 contained substantive comments on specific measures or
components of the proposed rule. In the text below, NMFS provides a
summary of the significant comments, recommendations, and issues raised
that relate to this rulemaking, provides responses to them, and
identifies any changes to the proposed regulations. Comments related to
the draft Environmental Assessment, Regulatory Impact Review, and
Initial Regulatory Flexibility Analysis are summarized and responded to
in the final EA/RIR/FRFA that can be found on the Team Web site (http://www.nmfs.noaa.gov/pr/interactions/trt/falsekillerwhale.htm), and is
available upon request from the Regulatory Branch Chief [see
ADDRESSES].
General
Comment 1: Numerous commenters (The Humane Society of the U.S.
(HSUS), MMC, Earthjustice, Turtle Island Restoration Network (TIRN),
and individuals) expressed general support for the FKWTRP, though some
commenters noted their support was conditioned by specific changes,
clarifications, and/or cautions (discussed in comments below).
Commenters noted the protections for false killer whales were long
over-due, and recommended immediate implementation of all new
protections.
Response: NMFS acknowledges these comments. The FKWTRP is necessary
to reduce levels of incidental false killer whale mortality and serious
injury in the Hawaii-based longline fisheries, as required by the MMPA.
[[Page 71271]]
Comment 2: Several commenters addressed the differences between the
Draft FKWTRP (the Team's recommendations) and NMFS' proposed FKWTRP.
The Hawaii Longline Association (HLA), the Council, and individual
commenters did not support the changes from the Draft FKWTRP to the
proposed FKWTRP, and argued that the changes undermined the TRT process
and the agreement reached by the Team in July 2010. The Council
believes sufficient justification could be offered to support the TRT's
consensus plan, rather than diverge from it. Conversely, HSUS and MMC
commented that the proposed FKWTRP is largely based on the Team's
deliberations and recommendations, and while some provisions differ
from the Team's recommendations, HSUS and MMC believe the rationale for
most of the changes seem reasonable.
Response: NMFS values the work of the Team in providing consensus
recommendations for reducing false killer whale M&SI in the longline
fisheries. NMFS' proposed FKWTRP included nearly all of the Team's
consensus recommendations, with some important modifications. In the
proposed rule, NMFS described and provided specific rationale for all
changes from the Team's recommendations, as required by the MMPA. For
discussion of changes from the proposed rule, see the ``Changes from
the Proposed Rule'' section below, and responses to comments throughout
this rulemaking.
Comment 3: MMC commented that the rationale for and implications of
not including all proposed FKWTRP regulatory measures together under 50
CFR part 229 are not clear, and noted that this bifurcated rulemaking
approach will result in confusion regarding authorities and potential
conflicts between the two parts of the regulations. HSUS and MMC
recommended that NMFS should either include all FKWTRP regulations
under MMPA authority in 50 CFR Part 229, or if they are adopted under
MSA authority in 50 CFR part 665, that there be sufficient cross-
referencing or independent language such that a change under a fishery
management plan will not result in obviating the risk reduction that is
needed for false killer whales under the MMPA. In the latter case, MMC
recommended language in the final rule specifying that any changes to
FKWTRP measures under 50 CFR part 665 follow the same procedures as
those required to change FKWTRP measures in 50 CFR part 229, including
advance review and consultation with the Team.
Response: NMFS acknowledges that the proposed codification of the
FKWTRP regulations has caused unintended confusion. All FKWTRP
regulations in 50 CFR Part 229 are issued under MMPA authority.
Accordingly, in this final rule, NMFS is codifying all FKWTRP
regulations under 50 CFR part 229 to more clearly reflect the authority
under which the regulations have been promulgated. In addition, under
MSA section 305(d) authority, NMFS has revised the existing regulations
in 50 CFR 665.806(a)(2) defining the MHI longline fishing prohibited
area so that the boundaries are consistent with the prohibited area
required under the FKWTRP.
Comment 4: HLA and the Council commented that the proposed rule
does not comply with MSA. They argue that NMFS proposed to amend the
current MSA regulations governing the fisheries to implement the
proposed FKWTRP's gear requirements and MHI longline fishing prohibited
area; however, the rule does not specify whether and how NMFS plans to
comply with the MSA statutory provisions and regulations that govern
the promulgation of fishery management regulations.
Response: NMFS disagrees with this comment. In this final rule,
NMFS issues all take reduction plan regulations under MMPA authority.
Specifically, MMPA section 118 requires NMFS to develop and implement a
take reduction plan containing conservation measures designed to assist
in the recovery or prevent the depletion of strategic stocks that
interact with a commercial fishery. Where a stock's incidental M&SI
exceeds PBR, section 118 requires that the TRP include measures that
NMFS expects will reduce, within 6 months of the plan's implementation,
M&SI to a level below PBR. Although in meeting the long-term goals of
the TRP, NMFS is authorized to ``take into account'' the economics of
the fishery, the availability of existing technology, and existing
State or fishery management plans, nothing in MMPA requires NMFS when
implementing these TRP regulations to follow MSA procedures or MSA
requirements for implementing fishery management plans and plan
amendments. However, as indicated above, NMFS has revised the
boundaries of the existing longline prohibited area around the main
Hawaiian Islands, as defined in 50 CFR 665.806(a)(2), to conform to the
prohibited area established under the FKWTRP regulations. This action
is taken under NMFS' MSA section 305(d) authority, and is necessary to
ensure that existing regulations applicable to the management of the
longline fishery remain consistent with all applicable law, including
the requirements of the MMPA and this FKWTRP.
Comment 5: The Council questioned whether the addition of new
regulatory measures under 50 CFR part 665 as a result of FKWTRP
implementation results in inconsistency between the fishing regulations
and the Fishery Ecosystem Plan (FEP) for Pacific Pelagic Fisheries of
the Western Pacific Region, and whether the FEP will require an
amendment to resolve the inconsistency. The Council requested clear
direction from NMFS, since an FEP amendment incurs administrative
burden on Council resources.
Response: We agree with the Council that under the proposed rule,
public confusion might result from the codification of FKWTRP
regulations in 50 CFR part 665. Accordingly, the final rule clarifies
that because all FKWTRP regulations are issued under MMPA authority,
they are being codified in 50 CFR part 229. As indicated above, the
existing fishing regulations in 50 CFR 665.806(a)(2), which establish
an area that is open to longline fishing seasonally, are inconsistent
with the FKWTRP's designation of a year-round longline exclusion zone
around the MHI. NMFS' action to revise the boundaries in 50 CFR
665.806(a)(2) is necessary to resolve conflicting regulations and to
ensure that the FEP is carried out consistent with all applicable law,
including MMPA. However, authority to initiate a change to the MHI
longline prohibited area boundary as described in the FEP resides with
the Council.
Comment 6: Earthjustice commented that subsequent to publication of
the proposed FKWTRP, NMFS amended 50 CFR 665.813 to add a new paragraph
(k) that requires longline gear modifications in the South Pacific to
reduce turtle interactions. Earthjustice stated that in promulgating
the final FKWTRP regulations, NMFS should be careful to renumber the
false killer whale provisions accordingly.
Response: In this final rule, NMFS is placing all FKWTRP
regulations in 50 CFR part 229, so 50 CFR 665.813 will be unaffected.
Comment 7: HLA and other individuals commented that the FKWTRP is
not based on the best available information. These commenters discussed
NMFS' abundance estimate and PBR calculation for the Hawaii Pelagic
stock of false killer whales, and their use as the basis for the
FKWTRP. The commenters state that the abundance
[[Page 71272]]
estimate in the final 2010 SAR is outdated and has been shown to be
inaccurate based on the sightings data from NMFS' 2010 shipboard survey
of the U.S. EEZ around Hawaii. The commenters argue that sightings data
from that 2010 survey represent new ``information'' and are currently
the best available science, regardless of whether a new abundance
estimate has been calculated. The commenters state that the PBR should
be considered unknown, as per NMFS' GAMMS, until a new PBR is issued.
Because of these concerns, the commenters argue that NMFS should
not issue a final TRP rule that is based on a PBR that derives from a
stale and inaccurate population estimate.
Response: When NMFS issued the proposed FKWTRP, the final 2010 SAR
was the best available information. The final 2010 SAR reported
abundance estimates and PBR calculations based on NMFS' 2002 shipboard
line-transect survey. All Team members were advised of the ongoing
shipboard survey, and of preliminary data indicating that abundance
estimates for the Hawaii Pelagic stock of false killer whales would
likely increase some amount. Much of the information from the 2010
shipboard line-transect survey has been analyzed and incorporated into
the draft 2012 SAR, including updated abundance estimates and PBR
calculations. NMFS is incorporating information in the draft 2012 SAR
for consideration in this final FKWTRP, along with other relevant
information.
Comment 8: HLA commented that the FKWTRP cannot create requirements
with respect to high seas false killer whale interactions. HLA argues
that authority extends only to the area for which NMFS has defined and
calculated a PBR (here, the U.S. EEZ), and the success of the TRP must
be measured by the applicable PBR and corresponding interactions that
occur within the range covered by the PBR (i.e., within the U.S. EEZ).
HLA states that whether interactions increase or decrease on the high
seas has no bearing on whether the U.S. EEZ PBR is being exceeded.
Response: NMFS disagrees. MMPA section 102(a) broadly prohibits the
taking of any marine mammal on the high seas by a person or vessel
subject to the jurisdiction of the United States, unless such taking is
otherwise authorized under MMPA. MMPA section 118 provides an exception
to the section 102(a) prohibition by authorizing marine mammal takes
incidental to commercial fishing. Specifically, Section 118(c)(3)(D)
provides that where an owner or master holds a valid marine mammal
authorization issued under the authority of this section, and operates
a fishing vessel in accordance with the requirements of Section 118,
the owner, master, and crew shall be not be liable for incidental takes
of marine mammals while engaged in fishing operations under that
authorization. Nothing in MMPA suggests that the requirements and
immunities provided for in section 118 should not apply simply because
PBR does not exist for the high seas component of a marine mammal
stock. Otherwise, incidental take by commercial fishers on the high
seas would be illegal take.
Although PBR is currently only calculated for the portion of the
Hawaii Pelagic stock residing within the U.S. EEZ around Hawaii, the
SAR indicates that the stock is transboundary and its distribution is
continuous across the U.S. EEZ boundary. False killer whales from the
Hawaii Pelagic stock are seriously injured and killed on high seas
waters adjacent to the U.S. EEZ. Accordingly, most of the FKWTRP's
measures, including the gear and placard posting requirements, apply
wherever a vessel operates, including the high seas. Managing serious
interactions within the high seas portion of the Hawaii Pelagic false
killer whale stock is essential to the successful implementation of the
FKWTRP, and the accomplishment of its conservation objectives under
Section 118. The FKWTRP's objectives will not be satisfied if
incidental M&SI in the longline fisheries is merely displaced to the
high seas portion of the stock.
To ensure that conservation measures of the FKWTRP would not simply
displace fishing effort and its corresponding impacts on the Hawaii
Pelagic false killer whale from the U.S. EEZ to the high seas, a goal
of the FKWTRP is that M&SI of the high seas portion of the Hawaii
Pelagic stock does not increase above current levels (e.g., 11.2 false
killer whales per year, as of the draft 2012 SAR (Carretta et al.,
2012a)). NMFS will continue to monitor false killer whale M&SI
following implementation of the FKWTRP. If implementation of the FKWTRP
measures results in an increase in false killer whale M&SI on the high
seas, NMFS, in consultation with the Team, may consider amending the
Plan to revise existing measures and/or require additional take
reduction measures.
Comment 9: Earthjustice stated that the proposed FKWTRP never
seriously tackles the MMPA's long-term goal of reducing incidental M&SI
within five years of the Plan's implementation to insignificant levels
approaching a zero M&SI rate.
Response: The FKWTRP is based on the recommendations of the Team
and contains measures to reduce the number and severity of incidental
interactions between the longline fisheries and false killer whales.
NMFS will continue to work with the Team as required by the MMPA and,
in consultation with the Team, will monitor the FKWTRP to determine
whether it meets the MMPA's short and long-term take reduction goals.
We anticipate that this will involve a continuing process of Plan
improvement and refinement as we continue to gain valuable information
from the Plan's implementation.
Comment 10: Londren-Pitman, Inc. commented that mortalities and
``serious injuries'' should not be lumped together, as ``serious
injury'' is largely subjective and not quantifiable, regardless of the
level of observer training.
Response: Under regulations and policies that implement MMPA, NMFS
is required to consider both mortalities and serious injuries to marine
mammals. The MMPA requires NMFS to distinguish between injuries to
marine mammals that are serious and those that are non-serious. MMPA
sections 117 and 118 specifically direct NMFS to consider both human-
caused mortality and serious injury to marine mammals for stock
assessments and management of fisheries interactions (e.g.,
classification on the MMPA List of Fisheries (LOF) and take reduction
plans). In January 2012, NMFS issued a final national policy to
establish a consistent and transparent process within NMFS for
objectively distinguishing serious from non-serious injuries of marine
mammals, for applying these criteria to injury cases, and for
documenting injury determinations (77 FR 3233, January 23, 2012). The
final policy interprets the regulatory definition of serious injury
(``any injury that will likely result in mortality'', 50 CFR 229.2) as
any injury that is ``more likely than not'' to result in mortality, or
any injury that presents a greater than 50 percent chance of death to a
marine mammal. Thus, mortalities and serious injuries are considered
together when managing marine mammal interactions in commercial
fisheries.
Comment 11: HLA objects to certain aspects of NMFS' proposed formal
guidance on serious injury determinations.
Response: NMFS' national policy for distinguishing serious from
non-serious injuries of marine mammals was finalized and has been in
effect since
[[Page 71273]]
January 27, 2012, and is outside the scope of this rulemaking.
Comment 12: HLA and individual commenters do not support a serious
injury determination process in which the determination is made by a
single individual with ``review'' by the PSRG, particularly given the
magnitude of the ramifications of a serious injury determination for
the fisheries. These commenters recommend that the serious injury
determinations for false killer whale interactions be made by a three-
person panel composed of neutral representatives from NMFS PIRO's PRD,
the Council, and the NMFS PIFSC.
Response: The serious injury determination process has been
formalized through a new national policy. Under the process prescribed
in the new policy and the expedited version of that process described
above (see ``3. Expedite False Killer Whale Serious Injury
Determinations'' under ``Non-Regulatory Measures''), initial serious
injury determinations will be made by a single NMFS PIFSC staff person
using the detailed criteria and procedures in the national policy. Each
initial injury determination will then be reviewed three times: by a
scientist in another NMFS Science Center who is familiar with small
cetacean injuries in longline fisheries, by protected resources
managers within the NMFS PIRO, and by the PSRG. The multiple levels of
review will ensure consistent application of NMFS' serious injury
criteria. NMFS believes this decision-making process is sufficiently
thorough, while still efficient for purposes of implementing measures
of the FKWTRP.
Comment 13: HSUS supports an expedited process for making serious
injury determinations, but this should not come at the expense of a
robust analysis by responsible scientists, nor should it create a
short-changed internal review process.
Response: NMFS is implementing an expedited review process for
making serious injury determinations for the purposes of the FKWTRP, as
described above (see ``3. Expedite False Killer Whale Serious Injury
Determinations'' under ``Non-regulatory Measures''). The process will
allow NMFS to make the injury determinations in a timely fashion, as
necessary for implementing provisions of an SEZ, while providing a
structure for robust analysis and multiple levels of review.
Scope
Comment 14: HLA commented that the shallow-set longline fishery
should not be included in the scope of the FKWTRP, arguing that false
killer whale interactions with this fishery are both insignificant and
discountable. HLA also noted that the fishery has 100 percent observer
coverage, so there is a high degree of confidence in available
information, and a ready and reliable source of ongoing information to
alert NMFS should the situation change.
Response: The level of false killer whale M&SI in the Category II
Hawaii-based shallow-set fishery is low, but there are documented M&SI
of the strategic Hawaii Pelagic stock of false killer whales (0.1
average annual M&SI, as of the draft 2012 SAR (Carretta et al.,
2012a)). Since the Category II shallow-set longline fishery interacts
with the strategic Hawaii Pelagic stock, a take reduction plan is
required as per MMPA section 118(f)(1).
Comment 15: Numerous commenters (HSUS, MMC, TIRN, Earthjustice, and
individuals) commented that the FKWTRP should address all commercial
fisheries known or suspected of interacting with false killer whales,
and representatives of those fisheries should be added to the Team.
Particular concern was expressed for nearshore fisheries, which may
impact the Hawaii Insular stock. Earthjustice stated that this revision
of the scope is needed to comply with the MMPA's command that all
commercial fisheries shall reduce incidental M&SI of marine mammals to
insignificant levels approaching a zero M&SI rate.
Response: The FKWTRP addresses the commercial fisheries documented
to have incidental M&SI of false killer whales--the Hawaii-based deep-
and shallow-set longline fisheries. It is the long-term goal of this
Plan to reduce the incidental M&SI to insignificant levels approaching
a zero M&SI rate. As indicated in the Notice of Establishment of a
False Killer Whale Take Reduction Team and Meeting (75 FR 2853, January
19, 2010), there is insufficient information to warrant including other
commercial fisheries in the scope of the FKWTRP at this time. NMFS will
revise the scope of the FKWTRP and add representatives of those
commercial fisheries at a later date, if warranted.
Comment 16: HSUS and Earthjustice expressed particular concern
regarding the Hawaii shortline fishery, and the potential that longline
fishermen may switch to shortline fishing to avoid having to comply
with regulations affecting the longline fisheries. HSUS commented that
the potential conversion to shortline fishing could lead to higher
rates of false killer whale mortality in a fishery that is poorly
monitored and managed. Earthjustice notes the potential for
considerable under-reporting of shortline fishing effort.
Response: As indicated in the Notice of Establishment of a False
Killer Whale Take Reduction Team and Meeting (75 FR 2853, January 19,
2010), regulation of the shortline fishery is outside the scope of this
rule. The shortline fishery is believed to operate with very few
participants and with low levels of landings. Comprehensive federal
management of the longline fisheries has not, to date, driven
participants into shortlining, and NMFS has no reason to believe that
future behavior will change. However, in recognition of the potential
for longline fishermen to switch to shortline fishing, NMFS will work
with Hawaii DLNR to monitor the reported shortline and mixed gear
fishing effort, particularly during any closure of the SEZ.
Comment 17: Earthjustice recommended NMFS require shortline
fishermen engaged in deep-setting to comply with the gear requirements
of the FKWTRP (i.e., hook and branch line requirements).
Response: The shortline fishery is not regulated under this final
FKWTRP. See response to comment 16 above.
Comment 18: HSUS, MMC, and Earthjustice stated that the shortline
and kaka line fisheries must be monitored by independent observers so
that operations and bycatch can be better understood and M&SI in those
fisheries are accounted for.
Response: Individuals participating in a Category I or II fishery
are required to accommodate an observer aboard their vessel(s) upon
request from NMFS. Under the LOF, the shortline fishery is Category II,
but the kaka line fishery is Category III. At this time, neither the
shortline nor kaka line fishery is actively managed under a fishery
management plan, and NMFS' observer program is fully committed to other
fisheries. NMFS will continue to work with DLNR within available
constraints and resources to improve data collection in these
fisheries.
Comment 19: Hawaii DLNR is concerned that the Draft FKWTRP includes
recommendations for further assessment of both shortline and kaka line
fisheries. DLNR argues that kaka line fishing is not likely to interact
with false killer whales, and NMFS should distinguish between the two
gear types to prevent kaka line from unnecessarily being lumped in with
other listed fisheries and having to comply with a stop fishing order
when the false killer whale PBR limit is exceeded.
Response: Although the Team discussed and made recommendations
regarding both shortline and kaka line
[[Page 71274]]
fisheries, NMFS recognizes that the fisheries may present different
levels of risk of hooking and entanglement of false killer whales. The
kaka line fishery was added to the LOF as a Category III fishery in the
2011 LOF, and its classification has not changed since it was
originally listed. See the proposed (75 FR 36318, June 25, 2010) and
final (75 FR 68468, November 8, 2010) 2011 LOF for more information.
The shortline and kaka line fisheries are not subject to the
requirements of this final FKWTRP. The longline fishing prohibited area
around the MHI does not apply to fisheries other than federally-
permitted longline fisheries. Moreover, the SEZ closure, if closed
based on exceedance of the trigger (which is based in part on PBR),
would apply only to the federally-permitted deep-set longline fishery.
Comment 20: Hawaii DLNR urged NMFS to fully examine the shortline
and kaka line fisheries and their impacts to false killer whales before
moving to regulate them further.
Response: See our response to Comment 16 above. NMFS is not
regulating the shortline fishery or kaka line fishery in this final
FKWTRP. NMFS will work with Hawaii DLNR and the Team to gather and
evaluate additional information on the impact, if any, of these and
other fisheries on marine mammals, and take appropriate action where
warranted.
Comment 21: HLA argues that the Hawaii Insular stock of false
killer whales should not be included in the scope of the FKWTRP. HLA
states that the stock is not strategic. HLA states that there are no
confirmed interactions between this stock and Hawaii's longline
fisheries, and HLA objects to the prorating of takes in areas that NMFS
has identified as the Hawaii Insular stock's range as arbitrary and
unscientific. HLA argues that the stock does not qualify for a TRT/TRP
process in its own right, nor is there basis for including the stock
due to ancillary interactions with a Category I fishery.
Response: The best available information, as presented in the 2011
SAR and in the most recent SAR (draft 2012 SAR), both indicate that
average annual incidental M&SI of Hawaii Insular false killer whales in
the deep-set longline fishery exceeds the stock's PBR level (Carretta
et al., 2012a, b). As explained in the final 2011 and draft 2012 SARs,
takes of false killer whales of unknown stock origin within the Hawaii
Insular/Pelagic stock overlap zone are prorated, given that no genetic
samples are available to establish stock identity for the takes, and
both stocks are considered at risk of interacting with longline gear
within this region.
In the final 2011 and draft 2012 SARs, the Hawaii Insular stock of
false killer whales is designated as a strategic stock, and is
incidentally killed or seriously injured in the Category I deep-set
longline fishery (Carretta et al. 2012a, b). The stock therefore meets
the requirements for inclusion within the scope of the FKWTRP.
Comment 22: HLA states that the deep-set longline fishery does not
have a ``high level'' of M&SI across a number of stocks, and the only
stock with which the deep-set longline fishery has interactions that
are more than discountable is the Hawaii Pelagic stock of false killer
whales. HLA argues that because the deep-set longline fishery does not
have a high level of interactions across a number of stocks, no non-
strategic stocks can be included within the scope.
Response: NMFS reviewed the most recent bycatch estimates for
marine mammals incidentally killed or seriously injured in the Category
I deep-set longline fishery to determine whether there is a high level
of interactions across a number of non-strategic stocks. The fishery
has documented interactions with a number of non-strategic marine
mammal species and stocks, both within the U.S. EEZ and on the high
seas, including false killer whales (Palmyra Atoll stock), Risso's
dolphins (Hawaiian stock), common bottlenose dolphins (Hawaii Pelagic
stock), Pantropical spotted dolphins (Hawaiian stock), striped dolphins
(Hawaiian stock), short-finned pilot whales (Hawaiian stock), and
Blainville's beaked whales (Hawaiian stock). The final 2011 SAR
(Carretta et al., 2012b) indicate the 5-year average annual M&SI for
those seven marine mammal species observed to be taken by the fishery
inside the U.S. EEZ around Hawaii (i.e., where PBRs are calculated)
range from 0 percent of PBR (i.e., no M&SI inside the U.S. EEZ) to 4.7
percent of PBR, within the insignificance threshold. PBR is currently
unavailable for marine mammals on the high seas, and thus the impact of
the marine mammal bycatch on the high seas has not been determined.
However, overall levels of M&SI of these non-strategic stocks on the
high seas are low, at levels similar to those inside the U.S. EEZ
around Hawaii. Therefore, NMFS has determined that the Category I deep-
set longline fishery does not have a high level of M&SI across a number
of non-strategic marine mammal species and stocks, and is not including
any non-strategic marine mammal stocks in the scope of this Plan.
However, we expect that the Palmyra Atoll stock will still benefit from
the Plan since most of the regulatory measures apply to the deep-set
fishery wherever it operates.
Comment 23: HLA argues that the Palmyra Atoll stock of false killer
whales should not be included in the scope of the FKWTRP. HLA states
that the stock is not strategic, and given the insignificant
interaction rate, it is debatable whether the deep-set longline fishery
can be said to ``interact with'' the stock at all.
Response: For the reasons discussed in the section ``Distribution
and Stock Structure of False Killer Whales in the Pacific Islands
Region'', and in our response to comment 22, NMFS is removing the
Palmyra Atoll false killer whale stock from the Plan's scope.
Comments on Specific Measures in the FKWTRP
Hook Requirements
Comment 24: Numerous commenters (MMC, HSUS, TIRN, individuals)
supported the proposed weak circle hook requirements. MMC stated that
whether or to what extent weak circle hooks will reduce false killer
whale M&SI is unclear, but MMC believes this mitigation measure
warrants implementation to determine its effectiveness, particularly
given the success of weak hooks in reducing unintended bycatch in other
fisheries.
Response: NMFS agrees that weaker circle hooks in the deep-set
longline fishery are a promising measure that is expected to reduce the
number and severity of false killer whale hooking injuries. However,
the 4.0 mm wire diameter circle hooks that were proposed to be required
in the fishery need additional research to ensure the effectiveness as
a mitigation measure and their ability to retain target catch. Until
those hooks can be examined further, NMFS is requiring circle hooks
with a maximum wire diameter of 4.5 mm, which are weaker than hooks
currently used by approximately 80 percent of the fishery.
Comment 25: Lindgren-Pitman, Inc. stated concerns regarding a lack
of engineering and manufacturing science that was included in the
research that forms the basis of these proposed regulations, including
no specification of design criteria to enable release of a false killer
whale and retention of all catch, no testing of alternate hook designs,
no specification of failure threshold, and no consideration of
metallurgy and manufacturing process, which are most important in
characterizing the strength of any given hook. The commenter stated
that the
[[Page 71275]]
sample size of hooked false killer whales is so low that there is no
way to quantify whether or not using weak hooks would limit the take of
false killer whales at all. The commenter suggested that ease of
enforcement should take a back seat to sound science and an engineering
approach when researching alternative gear. The commenter does not
support the proposed regulations, and instead supports the status quo.
Response: The Team recommended and NMFS proposed the required use
of a hook that was expected to allow release of hooked false killer
whales. NMFS does not have information on the pull strength necessary
to enable release of a false killer whale, and focused on testing hook
types similar to those currently in use by the fleet, but with a weaker
bending strength that would allow a large marine mammal to escape. This
approach built on the concept of weak hooks that were tested in Gulf of
Mexico and Atlantic pelagic longline fisheries. Although we agree with
the commenter that there will still be variations in hook designs,
failure thresholds, and manufacturing processes, NMFS believes that
requiring an overall reduction in wire diameter to 4.5 mm will produce
a net positive conservation benefit to the false killer whale. We note
that the collective judgment of the Team--which was composed of fishing
industry representatives, marine biologists, environmental groups,
NMFS, State, and Council employees, and academics--after considering
all available scientific and commercial information on the subject,
also called for the use of a smaller diameter wire. NMFS believes the
hook specifications in this final rule will be sufficient to reduce
false killer whale serious injuries, but will monitor their
effectiveness as part of the larger FKWTRP monitoring strategy.
Continued research and development of ``gear fixes'' or other
technologies will be important for long-term reduction of false killer
whale depredation and hooking. NMFS will continue to prioritize gear
research to support false killer whale take reduction.
Comment 26: The Council and HLA stated that the proposed maximum
4.0 mm wire diameter requirement is unnecessarily restrictive and would
negatively impact the fishery. They argued that the Bigelow et al.
(2011) study did not sufficiently demonstrate that there would be no
significant impact to the deep-set longline fishery of using circle
hooks with 4.0 mm wire diameter. The commenters note that the study was
not conducted during the time of year when the largest bigeye tuna are
historically caught, and the fish caught during the study period were
substantially smaller than fish caught during that same time frame in
previous years, and thus the study was not able to confirm whether
larger bigeye tuna could be retained on the 4.0 mm wire diameter hooks.
Response: These concerns were discussed at the July 2011 Team
meeting and again by a sub-group of the Team representing a cross-
section of Team members and interests (see the July 2011 Key Outcomes
Memo and the December 13, 2011 call summary for the Weak Hook Work
Group, available online at http://www.nmfs.noaa.gov/pr/interactions/fkwtrt/). The seasonality of the deep-set fishery's target catch size
and value was confirmed in a follow-up analysis by NMFS (Bigelow,
2012). The results of the original study (Bigelow et al., 2011),
showing no significant difference in target species catch between the
two hook types tested, may not be valid for other parts of the year
when landed bigeye tuna are typically larger.
NMFS does not have sufficient information to require the use of
circle hooks with a maximum of 4.0 mm (0.157 in) wire diameter in the
deep-set fishery. However, as discussed in the preamble, the Team's
recommendation of a 4.2 (0.165 in) or 4.0 mm (0.157 in) diameter hook
was based on the assumption at the time that the standard diameter in
use by the industry was 4.5 mm (0.177 in), rather than the more
commonly used 4.7 mm (0.185 in) or 5.0 mm (0.197 in). Accordingly, NMFS
is requiring a fleet-wide change to 4.5 mm (0.177 in) wire diameter for
circle hooks, so as to achieve a comparable reduction in hook wire
diameter based on the updated information.
Comment 27: HLA argued that NMFS has not performed an analysis of
the effects of implementation of a 4.0 mm weak hook--on the fishery, on
manufacturers, on dealers, and on associated businesses--that is
sufficiently thorough, detailed, or otherwise acceptable to justify a
major change in gear that will assuredly have unintended consequences.
Response: For reasons described in other parts of this rule (see
``(1) Hook Requirements'' under ``Regulatory Measures'' and comments/
responses 24, 26, and 28), NMFS is not requiring that circle hooks have
a maximum wire diameter of 4.0 mm (0.157 in) at this time. Instead,
consistent with the Team's unanimous findings that requiring circle
hooks and reducing wire diameter would benefit false killer whale
conservation, NMFS is requiring a maximum wire diameter of 4.5 mm
(0.177 in) for circle hooks in the deep-set longline fishery.
Comment 28: The Council and HLA support a maximum wire diameter of
4.5 mm, rather than 4.0 mm. The commenters state that new information
indicates 4.5 mm is not the ``standard'' wire diameter as was
previously believed, and at least half the vessels in the fleet use
hooks with wire diameters greater than 4.5 mm, including some J hooks.
Therefore, a 4.5 mm circle hook requirement would mark a significant
change in the current fishery, in terms of an overall reduction of hook
wire diameter and a complete elimination of J style hooks.
HLA also noted that requiring a maximum of 4.5 mm wire diameter
would meet the Team's intent that the hook should be the weakest link
in the terminal gear, especially considering that many boats currently
use hooks that are stronger than the branch line and wire trace.
Further, the Council and Lindgren-Pitman, Inc. argued that false killer
whales are capable of straightening circle hooks with 4.5 mm wire
diameter, as documented in Bigelow et al. (2011).
Response: NMFS is requiring the maximum wire diameter requirement
for circle hooks in the deep-set longline fishery to 4.5 mm (0.177 in),
based partly on the information provided by the commenters (which was
confirmed by NMFS' discussions with major hook suppliers for the
fishery). NMFS agrees that, based on the updated information on the
hooks currently used in the fishery, the required use of circle hooks
with 4.5 mm (0.177 in) wire diameter is expected to reduce mortalities
and serious injuries of hooked false killer whales.
Comment 29: Lindgren-Pitman, Inc. commented that crew safety is a
concern, noting that compromising the strength of the gear between the
leaded swivel and the fish can be a serious working hazard, and weak
hooks are inherently more dangerous than the status quo.
Response: Crew safety is a very important consideration for any
fishery management measure. The hooks required by this final rule are
stronger than those that were proposed and are already used by a
segment of the deep-set fishery. NMFS, and the Team (including longline
fishermen), did not identify the use of circle hooks with 4.5 mm wire
diameter as a crew safety concern.
Comment 30: Several commenters (TIRN, HLA, individuals) requested
additional research on weak hooks to validate and improve their
effectiveness. HLA specifically recommended a new
[[Page 71276]]
study to assess the effects of using hooks with a wire diameter of less
than 4.5 mm (i.e., compare 4.5 mm, 4.2 mm, and 4.0 mm), and based on
the results, NMFS should require the deep-set fishery to use the hook
with the smallest wire diameter that does not have a substantial impact
on the size or value of bigeye tuna.
Response: NMFS agrees that further research is needed to test weak
hooks and to determine whether weaker hooks might be used in the
fishery. NMFS will prioritize and pursue weak hook research as funding
allows.
Comment 31: The Council, HLA, and individuals recommend eliminating
the limit on maximum hook size in the deep-set fishery; further, the
Council requests that NMFS consider a minimum hook size requirement
instead of a maximum. The Council states that the Team's original
recommendation concerning hook size in the Draft FKWTRP was only based
on the common circle hook size currently found in the fishery, and was
not intended to specify maximum or minimum hook sizes. The Council
argues that there is no evidence that smaller hooks are less
detrimental to false killer whales than larger hooks.
The commenters cite the benefits of larger circle hooks at reducing
bycatch rates of protected species (e.g., sea turtles, seabirds, and
vulnerable fish species), and state that any hook requirement should
not compromise the potential benefits from use of larger hooks,
including the ability of fishermen to innovate. Additionally, they
stated that if a maximum wire diameter is specified, larger hooks of
the same wire diameter are more likely to straighten than smaller hooks
due to mechanics of leverage, providing greater potential for false
killer whales to free themselves from the hook. However, HLA notes that
it is highly unlikely that deep-setting vessels would use hooks greater
than 16/0 that are less than 4.5 mm in diameter because they would
likely not fish effectively.
Response: NMFS generally agrees with these commenters and is not
regulating the size of circle hooks in the deep-set fishery. The
proposed maximum size requirement was based on the language in the
Draft FKWTRP, and analyses that indicated false killer whales and
blackfish are less likely to be hooked or, if hooked, would have fewer
deaths and serious injuries on small circle hooks compared to other
hook types. These analyses are described in the Draft FKWTRP and Forney
et al. (2011). However, they mainly compare the effect of hook shape
(i.e., tuna, J, and circle), rather than hook sizes. This is primarily
because large (18/0) circle hooks are used very infrequently in the
deep-set fishery, and no false killer whales or blackfish have been
observed to be hooked on large circle hooks.
NMFS has insufficient information to indicate that the size of the
circle hook affects false killer whale hooking rates or injury
severity. Although the Team discussed the possibility that it may be
more difficult for smaller circle hooks (14/0, 15/0, 16/0) to get
around and become embedded in a false killer whale's jaw compared to
larger circle hooks, the Team also considered information that larger
circle hooks with only a 4.5 mm wire diameter might be more likely to
straighten under the pull of a false killer whale. In short, the
available information does not convince us that larger circle hooks
(18/0) should be prohibited under the FKWTRP.
In addition, NMFS has long recognized the potential of larger
circle hooks to reduce bycatch of other protected species. Given these
benefits to other protected species, including sea turtles, and the
lack of information about adverse effects on false killer whales, NMFS
does not want to discourage their use. If fishermen do choose to use
larger circle hooks, the FKWTRP regulation regarding maximum wire
diameter (4.5 mm) would still apply. Additionally, both large and small
circle hooks are significantly weaker than tuna hooks.
The Council suggested that NMFS specify a minimum size for circle
hooks in the deep-set fishery, rather than a maximum size. NMFS is not
including such a specification in this final rule as it was neither
discussed by the Team nor included in the proposed FKWTRP. However, if
the FKWTRP regulations result in a switch by the fleet to smaller
hooks, and if those smaller hooks show an increased rate of false
killer whale M&SI or increased bycatch of other protected species,
regulation of minimum hook size may be considered in the future.
Comment 32: TIRN and individuals requested additional research to
determine if smaller hooks can be required in the future to better
protect false killer whales.
Response: As described in the response to comment 31 above, there
is no information to indicate that the use of smaller circle hooks
results in injuries to false killer whales that are less serious than
larger circle hooks. However, NMFS will continue to collect and
evaluate data on circle hook size and false killer whale hooking and
serious injury rates to determine whether there is a relationship.
Comment 33: HLA does not support the proposed requirement for hooks
to use only round, non-flattened wire. HLA stated that the TRT
recommended the use of round wire simply to allow for the wire diameter
of some portion of the hook shank to be measured, and noted that
effective enforcement of a wire diameter requirement can occur by
requiring compliant hooks to contain sufficient round wire to be
measured with a caliper or other appropriate gauge. HLA further stated
that no circle hooks currently on the market meet this ``non-
flattened'' wire requirement.
Response: The proposed regulatory requirement that hooks be made of
round wire was taken directly from the Team's recommendations (the
Draft FKWTRP). NMFS agrees that the intent of the requirement was to
allow for enforcement of the wire diameter regulation. NMFS did not
intend this aspect of the hook specifications to preclude the use of
circle hooks currently on the market. Therefore, we are requiring that
hook shanks need only contain round wire that can be measured with a
caliper or other appropriate gauge. This meets the Team's and NMFS'
intent without unnecessary restrictions on hook design.
Comment 34: MMC suggested that NMFS consider defining weak hooks
based not only on the wire used to make them, but also on the force
required to straighten them (e.g., an average of 205 pounds). To be
able to enforce such a provision, MMC recommended NMFS test available
hooks to determine which meet those standards and provide fishermen
with a list of approved hook types and hook manufacturers allowed in
the fishery. HLA commented that they do not support specifying a single
or a few ``authorized'' hooks, creating a hook ``template,'' specifying
the pull strength or required hook materials.
Response: NMFS is not including a regulatory definition for the
force required to straighten compliant hooks. Consistent with the
Team's recommendation, the aim of the Plan's maximum wire diameter
specification is to increase the likelihood that a hooked false killer
whale will be able to straighten the hook and release itself without
serious injury. We acknowledge that threshold bending strength is
unknown, and that a false killer whale's ability to release itself will
likely vary according to the circumstances of each individual
interaction. Based on NMFS' preliminary testing, we know that in at
least some circumstances, a false killer whale can straighten and
escape from a 15/0 stainless steel circle hook with a wire diameter of
4.5 mm (0.177 in), which straightens at around 303 pounds
[[Page 71277]]
(138 kg) of pull (Bigelow et al., 2011). However, the estimate of those
hooks' straightening strength is based on a small number of hooks
tested. (For more information, see ``Hook Strength Test Results,''
presented to the Team at the June 2010 meeting; available online at
http://www.nmfs.noaa.gov/pr/interactions/fkwtrt/meeting3.htm). NMFS
does not have sufficient information to require a particular bending
strength for circle hooks, so is therefore not including such a
specification in regulations.
Comment 35: The Council stated that adverse impacts to the longline
industry could be avoided with delayed implementation of the weak hook
requirement as well as a gradual phase-in period over a reasonable
period of time, noting that this would allow gear suppliers to stock
required hooks after the final rule is published, and for vessels to
switch over to weak hooks as part of the regular hook replacements
resulting from hook loss after each trip, and spread out the one-time
cost per vessel over the phase-in period. HLA specifically suggested
that any new gear requirement be delayed such that they are effective
at least one year after necessary quantities of new gear are acquired
by suppliers (i.e., one year plus a number of months to allow for
manufacture and distribution of new hooks).
Response: NMFS proposed the required use of hooks that were not
currently produced or commercially available, and thus a lengthy delay
in implementation of the requirement may have been necessary, as
suggested by the commenters. However, as described above (see ``(1)
Hook Requirements'' under ``Regulatory Measures'') and in response to
comments (e.g., comments/responses 24, 26-28, 31, and 33), NMFS has
established specifications that were recommended by the Team for hooks
that must be used by the deep-set longline fleet. These hooks are
already commercially available, and thus a shorter timeframe is needed
for implementation of this measure. The hook requirement will go into
effect xx days after this rule is published in the Federal Register.
NMFS considers this implementation time frame necessary to allow the
Plan to reach the short-term goal of reducing M&SI to below PBR levels
within six months, and believes this provides adequate time for
suppliers to obtain the necessary supply of hooks and for fishermen to
change over their gear.
Branch Line Requirements
Comment 36: MMC stated that the thickness of monofilament line may
not be a consistent indicator of breaking strength, and a performance-
based standard should be considered together with the minimum diameter
requirement for longline leaders and branch lines.
Response: NMFS recognizes that the breaking strength of
monofilament line may vary based on a number of factors, including age
(new vs. used), stretching, storage conditions (e.g., exposure to UV
rays), or whether the line has been soaked versus dry when the strength
is tested. There may also be differences in breaking strength within a
spool of monofilament. In recognition of these differences, and the
difficulty in enforcing a performance-based standard, the FKWTRP does
not include a performance-based standard for branch lines and leaders.
NMFS considers specification of a minimum diameter for monofilament
leaders and branch lines to be sufficient.
Deep-setting vessels in the Hawaii-based fleet typically use
monofilament branch lines but wire leaders. The wire used is typically
stronger than monofilament. However, to ensure that any material used
in the branch line or leader is at least as strong as the specified
monofilament, NMFS is including a performance standard (minimum
breaking strength of 400 lbs (181 kg)) for any materials other than
monofilament line.
Comment 37: HLA commented that any requirement for branch line
diameter should take effect at least one year after necessary
quantities of the new gear are acquired by suppliers.
Response: Monofilament line with a minimum diameter of 2.0 mm is
already widely available and used in the fishery. However, NMFS
recognizes that it will take fishermen time to change over gear. This
change would most efficiently be accomplished at the same time as
changing over hooks. Therefore, regulation is effective at the same
time as the hook requirement, which is 90 days following publication of
this final rule in the Federal Register.
Main Hawaiian Islands Longline Fishing Prohibited Area
Comment 38: MMC supports the proposed year-round closure around the
MHI, stating that it is necessary to reduce the risk of longline
fishing to the Hawaii Insular stock.
Response: NMFS is closing this area to longline fishing year-round
in this final rule. In the FKWTRP regulations at 50 CFR 229.37, NMFS is
closing the area within the existing February-September boundary (50
CFR 665.806) to longline fishing year-round. NMFS is also revising the
existing longline fishing prohibited area regulations at 50 CFR 665.806
by removing the seasonal boundary change, to be consistent the FKWTRP
regulations.
Comment 39: HLA disagrees that longline fishing within the
seasonally open area may be affecting the Hawaii Insular stock, but HLA
believes that the proposed year-round restriction would effectively
eliminate any risk of any kind (if any exists at all) from the longline
fleet to the Hawaii Insular stock. HLA requested that the rule should
recite the Team's statement as such (see p. 60 of the Draft FKWTRP).
Response: The best available information indicates that the Hawaii
Insular stock of false killer whales is at risk of interacting with
longline fishing gear within the portion of the Hawaii Insular/Pelagic
stock overlap zone where longline fishing occurs, and the draft 2012
SAR reports an estimated 0.5 Hawaii Insular false killer whales killed
or seriously injured in the deep-set longline fishery each year
(Carretta et al., 2012a).
The Team stated in its recommendations to NMFS that a year-round
closure of the MHI longline fishing prohibited area would eliminate any
risk from the longline fisheries to the Hawaii Insular stock. Although
the closure is expected to substantially reduce the risk of longline
fishing to the Hawaii Insular stock, we disagree that all risk to the
Hawaii Insular stock can be eliminated. NMFS believes that there
remains a small risk of incidental interactions with the longline
fisheries within the area of the Hawaii Insular/Pelagic stock overlap
zone that would remain open to longline fishing.
Longline fishing is already prohibited year-round from the entire
core range of the Hawaiian Insular population and a portion of the
Hawaii Insular/Pelagic population overlap zone (50 CFR
665.806(a)(2)(ii)), and seasonally in an additional portion of the
overlap zone (50 CFR 665.806(a)(2)(i)). This final rule would prohibit
longline fishing year-round around the MHI within the current February-
September exclusion zone boundary. The boundary is not a uniform
distance from shore, but ranges from 78.6 km (42.4 nm) to approximately
200 km (108.0 nm) (Baird, 2009). Longline fishing would be still
allowed within approximately 26 percent of the Hawaii Insular/Pelagic
population overlap zone.
NMFS believes that false killer whales from the Hawaii Insular and
Hawaii Pelagic populations are not uniformly distributed within the
overlap zone, but show a gradient: the density of the Hawaii Insular
population decreases with increasing distance from shore,
[[Page 71278]]
and the density of the Hawaii Pelagic population decreases with
decreasing distance to shore (McCracken, 2010; Carretta et al., 2012a).
Therefore, false killer whales in the offshore portions of the overlap
zone (i.e., in the area where longline fishing would still be allowed)
are more likely to be from the Hawaii Pelagic population. Although
Hawaii Insular false killer whales would largely be protected from
incidental interactions with the longline fisheries, a small risk
remains. NMFS expects other proposed measures in the final FKWTRP,
including the required use of circle hooks in the deep-set longline
fishery, to further mitigate the risk to Hawaiian Insular false killer
whales.
Comment 40: HLA stated that the current MHI prohibited area and the
proposed MHI prohibited area have different regulatory purposes, so HLA
requests that the year-round closure set forth in the proposed rule be
identified separately in the regulations implementing the TRP, and the
separate bases for each of the exclusion zones be explained in the
final rule. HLA noted that this would better reflect the intent of the
Team.
Response: NMFS agrees that the original and proposed MHI longline
fishing prohibited areas have different regulatory purposes. In this
final rule, NMFS is establishing the longline fishing prohibited area
under the FKWTRP regulations, with the same boundary as the current
February-September MHI longline prohibited area. This final rule
specifically notes that the reason for implementing this closure is
false killer whale conservation. Additionally, under the authority of
the MSA, NMFS is revising the regulations in 50 CFR 665.806 prescribing
the existing MHI longline fishing prohibited area by removing the
seasonal boundary change. This action will align the boundaries of the
MHI longline prohibited with those of the prohibited area established
under this FKWTRP, and is necessary to ensure that existing regulations
applicable to the management of the longline fishery are consistent
with the requirements of the FKWTRP and the MMPA.
Comment 41: HLA noted that the TRT intended that management
measures would change as new information and circumstances dictate. HLA
therefore recommends that the rule explain the basis for the closure
(i.e., the longline fisheries may have some effect on the Hawaii
Insular stock and closing the area will eliminate this effect) so that
if that assumption changes or additional information calls that into
doubt, or if false killer whale interactions are otherwise
substantially reduced, the current seasonal contraction of the boundary
would be re-implemented.
Response: This final rule explains the basis for the MHI longline
fishing prohibited area (see ``(3) Main Hawaiian Islands Longline
Fishing Prohibited Area'' under ``Regulatory Measures''). As noted in
response to comment 39, NMFS expects this closure will substantially
reduce, but will not eliminate, the impact of longline fisheries on the
Hawaii Insular stock. NMFS, in consultation with the Team, will monitor
the effectiveness of the FKWTRP in meeting its take reduction goals,
and may adapt or amend the FKWTRP in the future as new information on
false killer whale populations and the impacts of longline fisheries on
the populations becomes available.
Southern Exclusion Zone
Comment 42: HLA objected to many of the SEZ measures as proposed,
specifically the way the SEZ deviates from the Team's recommendations.
HLA stated that the SEZ provisions recommended by the Team were
carefully crafted, fair, the product of delicate compromise, and fully
consistent with the MMPA goals, and should be implemented in the
FKWTRP.
Response: NMFS proposed SEZ measures that were somewhat different
from the Team's recommendations because, given the very low PBR for the
Hawaii Pelagic stock of false killer whales at the time the proposed
FKWTRP was published, NMFS was concerned that the Team's recommended
measures were not sufficient to reduce false killer whale M&SI to below
PBR. However, largely due to the increase in PBR for the Hawaii Pelagic
stock of false killer whales resulting from the 2010 HICEAS survey, as
reflected in the draft 2012 SAR, NMFS is implementing SEZ measures that
are consistent with the Team's recommendations. As more fully described
in the preamble (see section ``(8) Southern Exclusion Zone Closure''),
we believe that the Team's recommendation provides sufficient
conservation benefits, given the new PBR. NMFS will continue to
evaluate and consult with the Team on refinements to the SEZ trigger/
closure that will help respond to potential changes in PBR. If future
refinements are necessary, they will be implemented by appropriate
rulemaking.
Comment 43: HLA stated that the MMPA's take reduction goals are
just goals, not required mandates, and argued that it is arbitrary and
capricious for NMFS to craft SEZ provisions based on mechanical and
model-driven analyses that treat the MMPA's goals as strict
requirements.
Response: The MMPA mandates development, publication, and
implementation of take reduction plans, with the goal of reducing take
to below specified levels relative to PBR, and ultimately, to
insignificant levels. We agree that the take reduction goals are not
drafted as mandatory standards, perhaps to reflect Congress'
understanding that effective take reduction planning often involves
compromise based on conflicting professional judgments, as well as
incomplete and uncertain information. Nevertheless, we also believe
that a Plan's successful implementation will depend in large part on
whether it is reasonably calculated to achieve both the short and long-
term goals expressed in Section 118.
The SEZ trigger and closure measures were recommended by the Team
as an important component of a Plan for reducing false killer whale
M&SI to achieve the MMPA's goals, particularly given the uncertainty of
the other measures to reduce M&SI to necessary levels. The SEZ measures
provide a mechanism by which to gauge the deep-set longline fishery's
observed M&SI in comparison to PBR and to implement a closure as a
consequence of exceeding PBR, without the necessity of additional
rulemaking to initiate the closure. In this regard, the SEZ trigger and
closure measures provide a critical and predictable stopgap if and when
other regulatory measures fail to adequately protect false killer
whales, as MMPA requires.
Comment 44: TIRN and individuals commented that the determination
to close the SEZ is not based on the most transparent and conservative
estimate of false killer whale PBR, and recommended the rule be
modified to ensure PBR is never exceeded.
Response: The most recent estimate of PBR for the Hawaii Pelagic
stock of false killer whales is calculated and presented in the draft
2012 SAR (Carretta et al., 2012a), and is used in the calculation of
the trigger for closing the SEZ. Although this PBR value was not
available at the time of the Team's recommendations or the proposed
rule, both the Team's consensus FKWTRP and the proposed FKWTRP
identified a process for closing the SEZ that was based, in part, on a
PBR value that would change when new information became available. The
SEZ management measures in this final rule, specifically the trigger
calculation and reopening criteria, have been revised to be consistent
with those recommended by the Team. The trigger calculation and
[[Page 71279]]
closure procedures are more straightforward and transparent in
specifying a consequence SEZ closure if and when PBR is exceeded by the
deep-set longline fishery.
This FKWTRP is designed to reduce false killer whale M&SI to below
PBR, and in the longer-term, to insignificant levels approaching a zero
M&SI rate. NMFS will monitor the success of the FKWTRP at meeting these
goals, and will examine each measure, including the SEZ, to determine
its efficacy in reducing M&SI to levels below PBR.
Comment 45: HLA commented that NMFS should consider implementing
the SEZ portions of the FKWTRP rule in final after the new PBR is
released and after the new gear requirements are phased in. HLA stated
that this would allow NMFS to best judge whether the fishery is having
an effect on the Hawaii Pelagic Stock that actually results in PBR
being exceeded and whether the gear changes are effective.
Response: This final rule is based on the best available
information, including the draft 2012 SAR (Carretta et al., 2012a) and
its newly calculated estimates of abundance and PBR for the Hawaii
Pelagic stock of false killer whales.
Given the 90-day delay in implementation for gear requirements
(hook and branch lines), NMFS is implementing the SEZ provisions
immediately following the rule's 30-day delay in effectiveness, to
ensure that there are take reduction measures in place to protect the
false killer whale stocks from additional M&SI while the gear
requirements are being phased in. NMFS will monitor false killer whale
M&SI following implementation of gear changes to determine whether they
are having the intended effect in reducing M&SI.
Comment 46: Earthjustice stated that the SEZ management measures
should apply to all commercial fisheries that may interact with false
killer whales, including the deep-set and shallow-set longline and
shortline fisheries. Earthjustice, TIRN, and individuals specifically
noted that M&SI from all commercial fisheries within the U.S. EEZ
should count toward the trigger.
Response: The SEZ measures apply only to the deep-set longline
fishery, as recommended by the Team and proposed by NMFS. The main
reasons for limiting the measures to the deep-set fishery are the
fishery's high rate of false killer whale M&SI and level of effort
within the U.S. EEZ. The shallow-set longline fishery operates largely
outside of the U.S. EEZ around Hawaii, and thus has a low likelihood of
interacting with a false killer whale within the U.S. EEZ. In addition,
the shallow-set longline fishery, with 100 percent observer coverage,
has a low interaction rate with false killer whales. Accordingly, an
SEZ closure (within the U.S. EEZ) is not viewed as a necessary measure
for reducing false killer whale M&SI in the shallow-set fishery.
Therefore, M&SI of false killer whales in the shallow-set longline
fishery will not count toward the SEZ trigger, and the shallow-set
longline fishery will not be affected by any closure of the SEZ.
However, M&SI of false killer whales in the shallow-set longline
fishery will still be included in NMFS bycatch estimates and would be
presented in the SAR.
The Hawaii shortline fishery is not currently under the scope of
the FKWTRP (see comments/responses 15-20 for more information).
Therefore, SEZ provisions do not apply to the shortline fishery.
Comment 47: HSUS expressed concern that a closure of the SEZ may
result in fishermen converting longline gear to shortline gear and
still fish in the area, and that the proposed FKWTRP has no ability to
address the possible conversion of gear that could lead to higher rates
of mortality in fisheries that are poorly monitored and managed.
Response: NMFS previously addressed a similar but more general
comment related to the conversion of longline gear to shortline gear
(see comment/response 16). The Hawaii-based deep set fishery is
currently subject to a wide range of federal requirements, including
catch limits, limited entry requirements, observer coverage, and catch
reporting. To date, NMFS is unaware of any movement by fishermen into
shortlining on account of increased federal management. NMFS will
monitor reported fishing effort in the longline and shortline
fisheries, and consider any other available sources of information to
gauge whether gear conversion of longline to shortline is occurring as
a result of SEZ or other FKWTRP provisions.
Comment 48: The Hawaii DLNR commented that the SEZ closure should
not apply to nearshore fisheries, particularly the kaka line fishery.
Response: The SEZ provisions apply only to the deep-set longline
fishery. Nearshore fisheries, including the kaka line fishery, are not
currently affected by the FKWTRP or implementing regulations.
Comment 49: HLA stated that the proposed rule was not clear about
how false killer whale M&SI that occur within the Hawaii Insular/
Pelagic stock overlap zone would be counted toward the trigger. The
commenter stated that for bycatch estimates, the animal would be
prorated based on NMFS' model, and this prorated animal cannot count as
a whole interaction for the purposes of the SEZ provisions.
Response: As stated in the proposed rule and repeated in this final
rule, for purposes of implementing the SEZ, false killer whales that
are mortally or seriously injured in the deep-set longline fishery
within the U.S. EEZ around Hawaii will be considered to be from the
Hawaii Pelagic stock unless there is information to indicate that the
animal belongs to the Hawaii Insular stock. Therefore, false killer
whale M&SI that occurs within the Hawaii Insular/Pelagic stock overlap
zone would be considered to be Hawaii Pelagic false killer whales,
unless photo-identification or genetic analysis can definitively tie
the animal to the Hawaii Insular stock. NMFS emphasizes that the rough
extrapolations of M&SI and accounting of those M&SI for purposes of
implementing the SEZ trigger/closure do not represent the official
bycatch estimates for false killer whales in the fishery; the official
bycatch estimates are calculated by separate methods and are presented
in the annual SARs. While M&SI of false killer whales of unknown stock
origin within the Hawaii Insular/Pelagic stock overlap zone are
prorated as part of bycatch estimates for the SAR, the prorating
methods will not be applied for purposes of implementing the SEZ.
Comment 50: HSUS commented that changes made from the Draft FKWTRP
for calculating the SEZ triggers are in keeping with the general intent
of the Team's recommendations, but appear more practical for NMFS from
a management perspective. HSUS also understands the agency's rationale
for changes to the procedures that would lead to either re-opening and/
or re-closing a closed area.
Response: NMFS acknowledges the comment.
Comment 51: HLA supports some of the proposed SEZ measures that are
consistent with the Team's recommendations, including a trigger based,
in part, on PBR (recognizing that PBR can change) and a two-step
closure process in which the SEZ may be closed for the remainder of the
calendar year if the first trigger is reached and then closed for a
longer period of time if a second trigger is reached. HLA commented
that a two-trigger approach is essential because it creates an
incentive for the fishery to find a solution and gives the other
elements of the FKWTRP a chance to prove effective. HLA stated that any
SEZ provisions implemented by NMFS
[[Page 71280]]
cannot result in an indefinite closure of the SEZ after a single
trigger is reached.
Response: NMFS is including the two-trigger approach for managing
the SEZ, as recommended by the Team. Also consistent with the Team's
recommendations, the trigger in this final FKWTRP is based in part on
PBR.
Comment 52: HLA commented that specifying alternative triggers
based on a ``floor'' number (of a minimum of two) and a PBR exceedance
(for both the first and second triggers), as recommended by the TRT, is
essential because they help to account for the fact that the current
PBR is not based on the best available data.
Response: The triggers in this final FKWTRP are the same as those
recommended by the Team. As noted throughout this rule, the FKWTRP
relies on abundance estimates and PBR calculations presented in the
draft 2012 SAR, which represents the best available information.
Although this PBR value was not available at the time of the Team's
recommendations or the proposed rule, both the Team's consensus FKWTRP
and the proposed FKWTRP anticipated that PBR would change as new
abundance information became available.
Comment 53: HLA stated that the first and second triggers should be
identical, as outlined in the Team's consensus Draft FKWTRP. HLA
further commented that the second trigger should not be more stringent
that the first trigger because a substantial change in the fishery will
likely have occurred between the time the first and second triggers are
met (e.g., more rigorous captain and crew training, implementation of
and experience with new gear requirements, more crew awareness).
Response: The first and second triggers in this final FKWTRP are
identical to each other, as recommended by the Team and described above
(see ``(a) Defining the Trigger'' under ``Regulatory Measures''). The
triggers are both designed to result in closure of the SEZ if false
killer whale M&SI exceeds PBR.
Comment 54: The Council and HLA do not support the approach of
tying the second closure to a single additional observed mortality or
serious injury because, as proposed, it does not allow for an
adjustment of the trigger based on any newly calculated PBR within that
timeframe.
Response: NMFS has modified the SEZ trigger and closure scheme for
this final FKWTRP to more closely conform to the Team's Draft FKWTRP,
such that the second closure is no longer tied to a single observed
mortality or serious injury. Furthermore, the SEZ trigger and closure
scheme accounts for a changing PBR value.
Comment 55: HLA commented that the rule should include provisions
to account for a situation in which the first trigger is reached (and
the fishery is closed) based on exceedance of an inaccurate and
outdated PBR. HLA noted a potential worst-case scenario of a fishery
closure based on a trigger that uses the old PBR, only to learn after
the fact that the fishery would not have been closed if the correct PBR
had been used as the trigger.
Response: This FKWTRP is based on the best available information,
including a newly updated abundance estimate and PBR for the Hawaii
Pelagic false killer whale stock, as reported in the draft 2012 SAR.
The triggers will be calculated using the most updated estimate of PBR,
and revised whenever changes in PBR or observer coverage would change
the trigger value.
Comment 56: HLA suggested that the trigger need not be based on a
PBR reported in the current SAR, stating that the MMPA does not require
that a discrete element of a TRP be tied directly to the SAR.
Response: The MMPA's take reduction goals are tied directly to PBR,
which is reported in the SAR. Using the PBR reported in the most recent
SAR for calculating the SEZ trigger ensures that decisions are based on
the best available information, and is the most effective way to set a
trigger that would ensure the FKWTRP is meeting the MMPA-specified
goals.
Comment 57: HLA and Earthjustice commented on the false killer
whale M&SI that might be observed in the calendar year in which the
final rule is published, but before the specified effective date of the
final rule. HLA supported only counting toward the trigger those M&SI
that occur after the rule is effective, as was proposed. Earthjustice
recommended that those observed M&SI should ``count'' toward the
trigger, by adjusting the first year's trigger to reflect the
percentage of the entire fishing year that remains. Otherwise,
Earthjustice argued, M&SI could be allowed to exceed PBR during the
first calendar year without triggering a closure of the SEZ.
Response: NMFS is not prorating the trigger for the remainder of
the first year, and only those serious injuries or mortalities that
occur after this final rule is effective will count toward the trigger.
The trigger specifies the total number of observed false killer whale
M&SI allowed for an entire calendar year. The SEZ is a stopgap measure,
designed to work in concert with other measures in the Plan. NMFS
believes that the Plan must be given an opportunity to demonstrate
effectiveness, and that fishermen should be encouraged to reduce false
killer whale M&SI by changing fishing practices prior to an SEZ
closure. For this reason, NMFS will implement the annual trigger for
the remaining part of this calendar year.
Comment 58: Earthjustice stated that the proposed trigger and
closure implementation would allow levels of M&SI far in excess of PBR
to continue indefinitely without ever triggering closure of the SEZ.
The commenter argued that the proposed SEZ measures have ``statistical
amnesia'' such that if M&SI in a single fishing year approaches, but
does not exceed, the total amount of M&SI allowed for a five-year
period (i.e., the first trigger is not met), that excessive level of
M&SI is ignored when considering whether the SEZ should be closed due
to additional M&SI in following years. The commenter stated that the
mechanism for closing the SEZ must be revised to account for cumulative
M&SI in all of the fishing years included in the five-year average.
Response: NMFS recognizes that the SEZ trigger and closure
mechanism in the proposed rule did not adequately account for the
possible scenarios described by the commenter, which would have allowed
M&SI to exceed PBR without triggering closure of the SEZ. The measures
in this final rule are intended to address those cumulative gaps:
closure of the SEZ would be triggered upon PBR exceedance in any single
year. However, cumulative M&SI, particularly M&SI that occurs inside
the U.S. EEZ around Hawaii after the SEZ is closed, is still not fully
addressed by these final SEZ regulations. NMFS plans to consult with
the Team and consider revisions to the SEZ measures that will better
account for cumulative M&SI in future years, under various scenarios.
Comment 59: The Council stated that if the Team's consensus
approach for the SEZ (outlined in the Draft FKWTRP) cannot be supported
by NMFS, an alternative should be considered in calculating the trigger
for the SEZ closure, using a simple cumulative sum scheme. The Council
provided a detailed description of the potential implementation of such
a scheme. Earthjustice also put forward an alternative approach for the
SEZ that considers cumulative M&SI, and provided details on this
alternative trigger calculation.
Response: NMFS is substantially implementing the Team's approach
for the SEZ as outlined in the Draft FKWTRP. However, NMFS recognizes
[[Page 71281]]
that this SEZ approach may not address all possible M&SI scenarios if
the Hawaii Pelagic stock's PBR decreases. Additionally, cumulative
M&SI, including M&SI that occurs within the U.S. EEZ around Hawaii
after the SEZ is closed, is not fully accounted for. NMFS will consider
alternative SEZ measures to be proposed in a future rulemaking,
following consultation with the Team. NMFS will consider the Council's
cumulative sum scheme when developing those alternative SEZ measures.
Comment 60: Earthjustice stated that the proposed rule fails to
address the situation where NMFS may have delayed publication of the
closure trigger. Earthjustice recommends revising the regulations to
provide that, if the Assistant Administrator of NMFS does not publish
the trigger prior to the start of the fishing year, a formula would
apply, and the trigger would remain in place until the Assistant
Administrator publishes a trigger based on the factors in the proposed
regulation.
Response: In the revised SEZ measures of this final rule, NMFS
establishes the trigger as two observed false killer whale serious
injuries or mortalities in the deep-set longline fishery in the U.S.
EEZ around Hawaii. This trigger will remain in effect until NMFS
publishes a new trigger in the Federal Register to supersede the
existing trigger. Trigger publication is not required prior to the
beginning of each fishing year.
Comment 61: Earthjustice stated that the proposed rule fails to
account for potential substantial declines in observer coverage, and
suggested that regulations should require prompt publication of a new
trigger if actual coverage declines enough to alter the trigger value.
Response: Observer coverage levels are specified on an annual basis
per the terms of a contract with the company that provides observer
services for PIROP. Observer coverage is therefore unlikely to change
during the year such that it would affect the value of the annual
trigger for the SEZ. However, in this final rule, NMFS revised
regulations that specify the procedures for calculating and publishing
the trigger for the SEZ. The final regulations state that the trigger
published in the Federal Register will remain in effect until
superseded by publication of a revised trigger. NMFS would publish a
revised trigger if and when the values of annual observer coverage or
PBR of the Hawaii Pelagic stock change such that the trigger value
would be altered.
Comment 62: Earthjustice stated that the proposed regulations do
not set a deadline for the Assistant Administrator to publish notice of
a closure of the SEZ, or to set an outer limit to the delay in closing
the SEZ following the notice's filing. The commenter stated that the
regulations should mandate that the Assistant Administrator publish the
notice as expeditiously as possible following the observed M&SI that
meets the trigger, and, in any event, no later than 30 days after the
trigger has been met. The commenter also stated that the regulations
should specify that the closure should take effect no later than 15
days after the closure notice is filed.
Response: Closure of the SEZ depends on the ability to confirm the
species identification of the false killer whale involved in the
interaction and the serious injury determination. While NMFS will
attempt to expedite these processes, other factors beyond NMFS' control
may also affect the timing of the analysis. For example, a false killer
whale may be taken during an early set of a deep-set fishing trip, and
the vessel may not return to port for several weeks after the
interaction occurred. For this reason, NMFS cannot set a deadline in
regulations for publication of notice of an SEZ closure. However, NMFS
will endeavor to complete the process and publish notice of the closure
as expeditiously as possible.
While NMFS is not specifying the maximum time period for publishing
the notice of SEZ closure after the observed false killer whale serious
injury or mortality event that meets the trigger, NMFS is specifying 15
days as the maximum time period between publishing the notice of SEZ
closure in the Federal Register and the effective date of the closure.
Comment 63: HLA and the Council commented that the FKWTRP
regulations should include the SEZ reopening criteria that were
specified in the Draft FKWTRP. HLA noted that the scenarios
(represented by criteria) developed by the Team (and described in the
Draft FKWTRP) are very narrow and would only be met if there were real
progress being made regarding false killer whale interactions in the
fishery. HLA also stressed that reopening criteria, even if stringent,
would provide important incentives to the fishery to innovate and
discover other solutions. The Council suggested that NMFS could include
the Team-recommended reopening criteria in the regulations while also
including language that allows for the consideration of other scenarios
not considered by the Team.
Response: In this final rule, NMFS is including the SEZ reopening
criteria specified by the Team in the Draft FKWTRP. In developing the
proposed rule, we were concerned that the reopening criteria should
reserve sufficient discretion in NMFS to respond to circumstances and
exigencies not anticipated by the closure, such as increased M&SI in
other fishing areas. After reconsideration of the Team's
recommendations in the Draft FKWTRP, NMFS is satisfied that they
address those concerns.
Comment 64: MMC and Earthjustice commented that NMFS should reopen
the SEZ only when it can provide assurance that PBR will not be
exceeded. Earthjustice recommended regulations that preclude the
Assistant Administrator from reopening until and unless the average
extrapolated M&SI level in the years since implementation of the FKWTRP
regulations--or the most recent five-year period, whichever is
shorter--is lower than PBR.
Response: The reopening criteria specified by the Team (in the
Draft FKWTRP) and included in this final rule, if met, would provide
information that false killer whale M&SI is being reduced to below PBR,
annually and over time (e.g., five-year average). In fact, one of the
reopening criteria is that the average estimated Hawaii Pelagic false
killer whale M&SI for the deep-set longline fishery for up to the five
most recent years following Plan implementation is below the stock's
PBR level. The criteria will ensure that the SEZ will remain closed
until data show that meaningful M&SI reductions are being achieved.
The SEZ, in combination with the other measures of this FKWTRP, is
expected to reduce false killer whale M&SI to below PBR, and eventually
to insignificant levels. However, closure of the SEZ, by itself, will
not ensure PBR will not be exceeded, given that false killer whale M&SI
may still occur in the deep-set longline fishery in other areas of the
U.S. EEZ around Hawaii that are still open to longline fishing. The SEZ
must be managed adaptively. Therefore, NMFS must retain sufficient
discretion to reopen the SEZ if, after consultation with the Team, NMFS
determines reopening is warranted (see 50 CFR 229.37(e)(7)(i)). The
Team recommended this criterion for cases in which M&SI indicates new,
different, or additional management measures may be required to meet
the take reduction goal. For example, the SEZ closure could result in
redistribution and concentration of fishing effort within the U.S. EEZ
to an area that may have a higher temporary density of false killer
whales, and thus a higher likelihood of false killer whale
interactions. If the
[[Page 71282]]
SEZ closure results in an increased rate of false killer whale M&SI
within the U.S. EEZ, the area may need to be reopened and alternative
management measures explored.
Comment 65: The MMC recommended that, similar to a PBR-based
formula for defining the trigger to close the SEZ, NMFS should adopt in
regulations a corresponding PBR-based formula to determine when the SEZ
should be reopened, which would ensure PBR will not exceeded.
Response: The reopening criteria specified in this final rule are
mainly based on comparisons of the deep-set longline fishery's
estimated false killer whale M&SI to the Hawaii Pelagic false killer
whale stock's PBR. They allow reopening of the SEZ only when M&SI is
less than PBR for a specific period of time. As stated in this final
rule (see ``(8) Southern Exclusion Zone Closure'' under ``Regulatory
Measures''), NMFS will consider revisions to the SEZ in a future
rulemaking. NMFS may consider a PBR-based formula for defining an SEZ
reopening trigger in a future iteration of the SEZ.
Other
Comment 66: MMC recommended that NMFS adopt and implement all of
the proposed non-regulatory measures referenced in the proposed rule.
Response: NMFS is including all proposed non-regulatory measures in
this final rule, and has already begun implementation of many of these
measures.
Comment 67: TIRN and individuals recommended more research to
identify additional fishing areas for closure and reduced deep-set
longline fishing effort to ensure recovery of false killer whales.
Response: NMFS, in consultation with the Team, will monitor the
FKWTRP and determine whether it is meeting its short- and long-term
goals. As part of this monitoring, NMFS and the Team will evaluate
whether fishery time/area closures are effective in reducing
mortalities and serious injuries of false killer whales. At this time,
the FKWTRP does not include reductions in fishing effort.
Changes From the Proposed Rule
This section provides a summary of the changes from the proposed
rule to this final rule. More detail on the changes and rationale can
be found in the ``Regulatory Measures'' and ``Comments on the Notice of
Proposed Rulemaking and Responses'' sections above.
Scope. The non-strategic Palmyra Atoll stock of false killer whales
was removed from the scope of this Plan because it was determined that
the threshold specified in the MMPA for including non-strategic marine
mammal stocks in a take reduction plan (i.e., a Category I fishery has
a ``high level'' of M&SI across a number of such marine mammal stocks),
MMPA section 118(f)(1)) was not met.
Regulations. This final rule codifies all FKWTRP regulations at 50
CFR Part 229, rather than splitting them into 50 CFR Parts 665 and 229.
The authority under which the regulations are promulgated remains the
MMPA.
Hook requirements. Three aspects of the hook requirement for the
deep-set fishery were changed from the proposed rule. First, NMFS
removed the size specification; NMFS had proposed that the circle hooks
must be size 16/0 or smaller. For the reasons described above, NMFS has
insufficient information to conclude that larger (18/0) circle hooks
present a greater risk of M&SI to false killer whales. Second, NMFS is
requiring a maximum wire diameter size of 4.5 mm (0.177 in) rather than
4.0 mm (0.157 in), as originally proposed. However, the 4.5 mm (0.177
in) requirement is still expected to result in an overall decrease in
wire diameter for most fishermen. Third, NMFS had proposed that the
entire hook shank be made of round (non-flattened) wire. This final
rule requires that only the hook shank contain round wire that can be
measured with calipers.
MHI Longline Fishing Prohibited Area. Rather than revising the
existing regulations prescribing the longline fishing prohibited area
to remove the seasonal boundary change, NMFS is implementing in FKWTRP
regulations in 50 CFR Part 229 a longline prohibited area identical in
boundary to the current February-September boundary. This change is
necessary to clearly identify the intent of the closure area and the
authority under which it is being promulgated. NMFS is also revising
the boundaries of the MHI longline prohibited area in the existing
regulations in 50 CFR part 665 to be consistent with the FKWTRP
regulations.
Southern Exclusion Zone. Provisions specifying the boundaries of
the SEZ, the concept of using observed false killer whale M&SI in the
deep-set longline fishery to trigger a closure in close to real time,
and the use of fishing year (i.e., calendar year) cycle instead of
``Plan Years'' remain the same as originally proposed, though NMFS made
minor changes to the description of the boundaries for ease of
understanding. The trigger calculation and procedures for opening and
closing the SEZ were changed to substantially conform to the
recommendations of the Team outlined in the Draft FKWTRP. Additionally,
criteria for reopening the SEZ are specified in regulation, consistent
with the Team's recommendation.
Classification
NMFS determined that this action is consistent to the maximum
extent practicable with the approved coastal management program of the
State of Hawaii. This determination was submitted for review by the
responsible state agency under section 307 of the Coastal Zone
Management Act (CZMA). A letter from the State of Hawaii Coastal Zone
Management Program stating concurrence with NMFS' CZMA consistency
determination was received September 14, 2011.
This final rule does not contain policies with federalism
implications as that term is defined in Executive Order 13132.
NMFS prepared a final environmental assessment for this action that
discusses the impact on the environment as a result of this final rule.
The Preferred Alternative (the final action) is expected to have
beneficial effects on false killer whales and other protected species
due to potential reductions in interactions and/or injury severity from
use of circle hooks with 4.5 mm (0.177 in) wire diameter or less,
minimum diameter for monofilament branch line, and closed areas;
increased precision of bycatch estimates to better inform management
and facilitate adaptive management; and the potential for increased
post-interaction survival of entangled or hooked marine mammals due to
better training in handling/release, captains' supervision of
interactions, crew notification of captains when a marine mammal is
hooked or entangled, and posting of handling/release guidelines on the
vessel. Little to no effect on target and non-target species is
expected, given current spatial patterns of fishing, likelihood of
fishing effort redistribution rather than effort reductions following
area closures, the highly migratory nature of the stocks, and existing
fishery management measures (e.g., catch limits). No effects to the
physical environment, including designated Essential Fish Habitat,
Habitat Areas of Particular Concern, Critical Habitat, or physical
features are expected. Potential effects to the socioeconomic
environment include costs to the regulated community for replacement of
fishing gear, increased travel time and fuel costs, increased
certification requirements, and potential reduced revenue if area
closures result in reduced fishing effort; potential
[[Page 71283]]
reductions in revenue and income of fishing gear suppliers due to some
gear inventory being unsellable to the Hawaii-based longline fisheries;
direct and indirect beneficial quality of life effects on groups that
value the false killer whale, particularly scientists and educators and
members of the present and future generations of the general public
that value marine mammal conservation, with potential benefits to
wildlife viewers and to non-longline commercial fisheries or
recreational/subsistence fisheries if target fish population abundance
rises.
Based on the analysis presented in the final environmental
assessment, NMFS determined that the action will not significantly
impact the quality of the human environment, and all beneficial and
adverse impacts of the action have been addressed to reach the
conclusion of no significant impacts. Accordingly, preparation of an
environmental impact statement for this action was not necessary.
Copies of the final environmental assessment and Finding of No
Significant Impact are available on the Team Web site (http://www.nmfs.noaa.gov/pr/interactions/trt/falsekillerwhale.htm), and are
available upon request from the Regulatory Branch Chief [see
ADDRESSES].
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
NMFS prepared a final regulatory flexibility analysis (FRFA),
pursuant to section 604 of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), that describes the economic impact this final rule will have
on small entities. The analysis is included as Chapter 6 of the
combined Final Environmental Assessment (EA), Regulatory Impact Review
(RIR), and FRFA. A description of the need for and objectives of the
rule; a summary of significant issues raised by public comments in
response to the initial regulatory flexibility analysis (IRFA), summary
of the agency's assessment of such issues, and statement of changes
made in the proposed rules as a result of such comments; a description
and estimate of the number of small entities to which the rule will
apply; a description of the projected reporting, recordkeeping, and
other compliance requirements of the rule; and a description of the
steps the agency has taken to minimize the economic impact on small
entities are included in the FRFA. A summary of the analysis follows.
The full analysis is available on the Team Web site or by request from
the Regulatory Branch Chief [see ADDRESSES].
Need for and Objectives of the Rule
The action being addressed is the implementation of the FKWTRP,
pursuant to section 118(f) of the MMPA, to reduce incidental M&SI of
two stocks of false killer whales in the Category I Hawaii-based deep-
set longline fishery and the Category II Hawaii-based shallow-set
longline fishery. This action is needed because incidental M&SI levels
for these stocks in these fisheries exceed the thresholds established
under the MMPA. These levels are therefore inconsistent with the
mandates of the MMPA, and must be reduced.
Comments on the IRFA and Changes to the Analysis in Response
Four public submissions were received that contained comments on
the Draft EA-RIR-IRFA, including comments specific to the IRFA's
analysis of economic impacts to small businesses, as well as comments
on impacts analyzed in other sections of the document. These comments
are summarized and responded to in Appendix A of the combined Final EA-
RIR-FRFA. In general, the comments on the IRFA (i.e., those related to
economic impacts to small businesses, see comments 16-18 in Appendix A
of the Final EA-RIR-FRFA) requested that NMFS provide a more detailed
analysis of impacts of the proposed regulations on small businesses and
small vessels. Additionally the Office of Advocacy at the Small
Business Administration requested NMFS identify and provide analysis of
alternatives to the rule that could further minimize costs to affected
small businesses. In response to these comments, NMFS updated and
revised the FRFA analysis with respect to potential profitability
impacts on the fleet, especially for those vessels already operating
with thin profit margins, and to the potential for varying levels of
impacts by vessel size class. NMFS also added a discussion of
alternatives to the rule that were considered but rejected.
Directly Regulated Small Entities
The FRFA evaluated impacts of implementation of the final rule (the
Preferred Alternative) on small entities. The number of longline vessel
operations was identified from the list of Hawaii longline limited
access permit holders. The maximum number of active vessels in Hawaii's
longline fleet in the last 5 years is 129. Given that these vessels are
owned by 88 individuals, it is assumed based on available data that the
fleet is made up of 88 independently-owned businesses. There is only
one business with 14 vessels that may not meet the criteria of a small
business. Therefore, the analysis identifies 87 small businesses that
are anticipated to be directly regulated by the alternatives
considered. Of these small businesses identified, 68 businesses own 1
vessel each, 15 businesses own 2 vessels each, 2 businesses own 3
vessels each, 1 business owns 5 vessels, and 1 business owns 6 vessels.
For the purpose of this analysis, it is assumed that all these small
business are associated with the deep-set longline fishery.
Estimated Impacts to Small Entities
The Preferred Alternative is not expected to generate benefits to
the small businesses in the longline fishery, since it would further
restrict the location of longline fishing and require the use of
specific gear, additional training, and response to marine mammal
interactions.
Costs associated with the Preferred Alternative stem from labor and
material costs of replacing hooks and monofilament branch lines;
additional travel costs (fuel and time) of fishing outside the MHI
longline exclusion zone during the time it is currently open to
longline fishing and outside the SEZ if the closure is triggered;
annual cost of Protected Species Workshop certification of operators
and owners; and/or potential reduced revenue due to reduced catch or
fishing effort. Initial, one-time costs would be expected to range from
$3,000 to $5,000 per business for the 68 businesses owning 1 vessel
each, to $17,000-$28,000 for the single business owning 6 vessels.
Annual ongoing costs would be expected to range from $700 to $32,000
per business for the 68 businesses owning 1 vessel each, to $4,000-
$190,000 for the single business owning 6 vessels. Cost per business
for the small number of vessels owning between 2 and 5 vessels would be
expected to fall within the ranges identified above. Average annual
ongoing costs vary considerably depending on the duration of a
potential Southern Exclusion Zone closure. Individual business costs
may be higher or lower than the range described here depending on
several factors, particularly (1) location of current longline fishing
trips (if a vessel currently fishes in an area that will be closed by
the FKWTRP, costs will be higher for that vessel), and (2) current gear
use (if a vessel would need to change hooks or branch line to meet the
Preferred Alternative's gear requirements, costs will be higher for
that vessel).
The effects of the Preferred Alternative on small businesses will
depend on the profitability of these
[[Page 71284]]
businesses, which is difficult to quantify due to uncertainty and
volatility in revenue and cost structure over time, as well as
uncertainty regarding the actual costs of the FKWTRP, particularly if
the SEZ area closure were triggered. Recent profit data are not
available, but it is likely that the overall profitability has
decreased since 2000 due to rising operating costs (O'Malley and
Pooley, 2003). Data from 2000 also suggest that profitability in the
fleet varies by vessel size, and that owners of small vessels may
already be marginally profitable. Those vessels could be most affected
by the potential increased costs of the Preferred Alternative.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
of the Rule
No additional reporting, recordkeeping, and other compliance
requirement are anticipated for the affected small businesses as a
result of the rule.
Evaluation of Significant Alternatives to the Rule and Steps Taken To
Minimize Economic Impacts on Small Entities
In addition to the Preferred Alternative, the FRFA formally
considered two other alternatives. Implementation of a ``No Action''
alternative is not a viable option because it would not be consistent
with the objectives of the action and would be contrary to MMPA
requirements to reduce false killer whale M&SI to appropriate levels.
Alternative 3 would close the U.S. EEZ around Hawaii to longline
fishing year-round.
The complete closure of the U.S. EEZ around Hawaii to longline
fishing under Alternative 3 would be expected to incur more significant
overall annual costs to small businesses, although no one-time capital
costs are anticipated. These costs are associated with the opportunity
cost of increased travel time to fishing grounds outside of the U.S.
EEZ, and additional fuel costs for that travel. Annual ongoing costs
associated with implementing Alternative 3 range from $74,000 to
$88,000 per business for the 68 businesses owning 1 vessel each, to
$443,000-$527,000 for the single business owning 6 vessels. Cost per
business for the small number of vessels owning between 2 and 5 vessels
would be expected to fall within the ranges identified above.
NMFS also considered alternatives that could further minimize
economic costs to the affected small businesses while still achieving
MMPA objectives. These focused on alternatives to, or variations of,
the measures in the Preferred Alternative that have the largest
potential costs to the longline industry: the weak circle hook
requirements and the Southern Exclusion Zone. Specifically, NMFS
considered a range of implementation timetables for implementation of
the weak circle hook requirement, ranging from one month to six months.
Although a six-month implementation timeline for the circle hook
requirement, either for all longline vessels or for a particular size
class of vessels, may allow a minimal cost savings for those vessels,
NMFS rejected this alternative because it would likely impede
achievement of the MMPA's goal of reducing M&SI below PBR within 6
months of Plan implementation. The Preferred Alternative specifies an
intermediate 90-day timetable that will allow gear suppliers to acquire
a sufficient supply of hooks and fishermen to change over their gear,
and still implement the measure in time to demonstrate effectiveness.
It may result in a small cost savings to fishermen compared to an
immediate implementation of the requirement. Accordingly, NMFS
concludes that the 90 day implementation period appropriately minimizes
the rule's burden on small entities while still achieving MMPA
objectives.
NMFS also considered alternative implementation of the SEZ measures
that would have separate triggers or closures for vessels of different
size classes. NMFS rejected these alternatives mainly because the
sustainable bycatch threshold (PBR) for Hawaii Pelagic false killer
whales is so low that it would be impracticable to further apportion
the trigger among different sectors of the fleet, by vessel size or any
other characteristic. Similarly, NMFS cannot consider an exemption from
the SEZ closure for small vessels, given the low PBR level and the
equal probability that a vessel of any size may incidentally injure or
kill a false killer whale.
After careful examination of the best available scientific data on
false killer whales, NMFS finds that only the Preferred Alternative and
Alternative 3 had the potential to meet the stated objectives of the
Take Reduction Plan, consistent with MMPA requirements. Alternative 3
was not selected because it would impose substantially greater economic
impacts to small entities than the Preferred Alternative, and it has
not been determined to be necessary to achieve MMPA objectives. NMFS
believes that implementation of the Preferred Alternative will achieve
the requirements of the MMPA while minimizing economic impacts to small
businesses to the extent practicable.
References Cited
A list of all references cited in this final rule may be found on
the Team Web site (http://www.nmfs.noaa.gov/pr/interactions/trt/falsekillerwhale.htm), and is available upon request from the
Regulatory Branch Chief (see ADDRESSES).
List of Subjects
50 CFR Part 229
Administrative practice and procedure, Fisheries, Marine mammals.
50 CFR Part 665
Administrative practice and procedure, Fisheries, Hawaii, Longline,
Marine mammals.
For the reasons set out in the preamble, 50 CFR chapters II and VI
are amended as follows:
50 CFR CHAPTER II
PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE
MAMMAL PROTECTION ACT OF 1972
0
1. The authority citation for part 229 continues to reads as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. In Sec. 229.3, effective December 31, 2012, add and reserve
paragraph (v), and add new paragraphs (w) through (y) to read as
follows:
Sec. 229.3 Prohibitions.
* * * * *
(v) [Reserved]
(w) It is prohibited to fish with longline gear in the Main
Hawaiian Islands Longline Fishing Prohibited Area, as defined in Sec.
229.37(d)(1) .
(x) It is prohibited to deep-set in the Southern Exclusion Zone, as
defined in Sec. 229.37(d)(2), during the time the area is closed to
deep-set longline fishing pursuant to Sec. 229.37(e).
(y) It is prohibited to fish with longline gear from a vessel
registered for use under a Hawaii longline limited access permit in
violation of the marine mammal handling and release requirements at
Sec. 229.37(f).
0
3. In Sec. 229.3, effective February 27, 2013, add new paragraph (v)
to read as follows:
Sec. 229.3 Prohibitions.
* * * * *
(v) It is prohibited to deep-set from a vessel registered for use
under a Hawaii longline limited access permit unless the vessel
complies with the gear requirements specified in Sec. 229.37(c)(1) and
(c)(2) .
* * * * *
[[Page 71285]]
0
4. In subpart C, effective December 31, 2012, add a new Sec. 229.37 to
read as follows:
Sec. 229.37 False Killer Whale Take Reduction Plan.
(a) Purpose and scope. The purpose of this section is to implement
the False Killer Whale Take Reduction Plan to reduce mortality and
serious injury of the Hawaii Pelagic and Hawaii Insular stocks of false
killer whales in the Hawaii-based deep-set and shallow-set pelagic
longline fisheries. The requirements in this section apply to vessel
owners and operators, and vessels registered for use with Hawaii
longline limited access permits issued under Sec. 665.801(b) of this
title.
(b) Definitions. In addition to the definitions contained in Sec.
229.2, terms in this section have the following meanings:
(1) Deep-set or Deep-setting has the same meaning as the definition
at Sec. 665.800 of this title.
(2) Longline gear has the same meaning as the definition at Sec.
665.800 of this title.
(c) [Reserved]
(d) Prohibited area management. (1) Main Hawaiian Islands Longline
Fishing Prohibited Area. Longline fishing is prohibited in the portion
of the EEZ around Hawaii bounded by straight lines connecting the
following coordinated in the order listed:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A............................................... 18[deg]05' 155[deg]40
'
B............................................... 18[deg]20' 156[deg]25
'
C............................................... 20[deg]00' 157[deg]30
'
D............................................... 20[deg]40' 161[deg]40
'
E............................................... 21[deg]40' 161[deg]55
'
F............................................... 23[deg]00' 161[deg]30
'
G............................................... 23[deg]05' 159[deg]30
'
H............................................... 22[deg]55' 157[deg]30
'
I............................................... 21[deg]30' 155[deg]30
'
J............................................... 19[deg]50' 153[deg]50
'
K............................................... 19[deg]00' 154[deg]05
'
A............................................... 18[deg]05' 155[deg]40
'
------------------------------------------------------------------------
(2) Southern Exclusion Zone. Deep-set longline fishing is
prohibited in the Southern Exclusion Zone when the zone is closed to
protect false killer whales pursuant to the procedures outlined in
paragraph (e) of this section. The Southern Exclusion Zone is the
portion of the EEZ around Hawaii bounded by 165[deg] 00' W. longitude
on the west, 154[deg] 30' W. longitude on the east, the
Papahanaumokuakea Marine National Monument and the Main Hawaiian
Islands Longline Fishing Prohibited Area on the north, and the EEZ
boundary on the south.
(e) Southern Exclusion Zone trigger and procedures. (1) The
Assistant Administrator will publish in the Federal Register the
expected observer coverage for a fishing year, the potential biological
removal level for the Hawaii Pelagic stock of false killer whales, and
the associated trigger calculated using the specifications in paragraph
(e)(2) of this section. This trigger will remain in effect until
superseded by publication of a revised trigger.
(2) As used in this section, trigger means the number of observed
false killer whale mortalities or serious injuries in the deep-set
longline fishery that occur in the EEZ around Hawaii, and that serves
as the bycatch threshold for closing the Southern Exclusion Zone to
deep-set longline fishing. The trigger is calculated as the larger of
these two values:
(i) Two; or
(ii) The smallest number of observed false killer whale mortalities
or serious injuries that, when extrapolated based on the percentage
observer coverage in the deep-set longline fishery for that year,
exceeds the Hawaii Pelagic false killer whale stock's potential
biological removal level.
(3) Unless otherwise subject to paragraph (e)(4) of this section,
if there is an observed false killer whale mortality or serious injury
in the EEZ around Hawaii on a declared deep-set longline trip that
meets the established trigger for a given fishing year, the Southern
Exclusion Zone will be closed to deep-set longline fishing until the
end of that fishing year.
(4) If during the same calendar year following closure of the
Southern Exclusion Zone in accordance with paragraph (e)(3) of this
section, there is one observed false killer whale mortality or serious
injury on a declared deep-set longline trip anywhere in the EEZ around
Hawaii, then NMFS shall immediately convene the False Killer Whale Take
Reduction Team.
(5) If in the subsequent calendar year following closure of the
Southern Exclusion Zone in accordance with paragraph (e)(3) of this
section, there is an observed false killer whale mortality or serious
injury in the EEZ around Hawaii on a declared deep-set longline trip
that meets the established trigger for a given fishing year, the
Southern Exclusion Zone will be closed to deep-set longline fishing
until the area is reopened by the Assistant Administrator as per
criteria in paragraph (e)(7) of this section.
(6) Upon determining that closing the Southern Exclusion Zone is
warranted pursuant to the procedures in paragraphs (e)(1) through
(e)(5) of this section, the Assistant Administrator will provide notice
to Hawaii longline permit holders and the False Killer Whale Take
Reduction Team, publish a notice in the Federal Register, and post
information on the NMFS Pacific Islands Regional Office web site. The
notice will announce that the fishery will be closed beginning at a
specified date, which is not earlier than 7 days and not later than 15
days, after the date of filing the closure notice for public inspection
at the Office of the Federal Register.
(7) Reopening criteria. If the Southern Exclusion Zone is closed
pursuant to the procedure in paragraphs (e)(1) through (e)(6) of this
section, the Assistant Administrator would reopen the Southern
Exclusion Zone if one or more of the follow criteria were met:
(i) The Assistant Administrator determines, upon consideration of
the False Killer Whale Take Reduction Team's recommendations and
evaluation of all relevant circumstances, that reopening of the
Southern Exclusion Zone is warranted;
(ii) In the 2-year period immediately following the date of the
Southern Exclusion Zone closure, the deep-set longline fishery has zero
observed false killer whale incidental mortalities and serious injuries
within the remaining open areas of the EEZ around Hawaii;
(iii) In the 2-year period immediately following the date of the
closure, the deep-set longline fishery has reduced its total rate of
false killer whale incidental mortality and serious injury (including
the EEZ around Hawaii, the high seas, and the EEZ around Johnston Atoll
(but not Palmyra Atoll) by an amount equal to or greater than the rate
that would be required to reduce false killer whale incidental
mortality and serious injury within the EEZ around Hawaii to below the
Hawaii Pelagic false killer whale stock's potential biological removal
level; or
(iv) The average estimated level of false killer whale incidental
mortality and serious injury in the deep-set longline fishery within
the remaining open areas of the EEZ around Hawaii for up to the 5 most
recent years is below the potential biological removal level for the
Hawaii Pelagic stock of false killer whales at that time.
(8) Upon determining that reopening the Southern Exclusion Zone is
warranted pursuant to the procedures in paragraph (e)(7) of this
section, the Assistant Administrator will provide notice to Hawaii
longline permit holders and the False Killer Whale Take Reduction Team,
publish a notice in the Federal Register, and post information on the
NMFS Pacific Islands Regional Office web site. The notice will announce
that the fishery will be
[[Page 71286]]
reopened beginning at a specified date, which is not earlier than 7
days and not later than 15 days, after the date of filing the closure
notice for public inspection at the Office of the Federal Register.
(f) Marine mammal handling and release. (1) Each year, both the
owner and the operator of a vessel registered for use with a longline
permit issued under Sec. 665.801 of this title must attend and be
certified for completion of a workshop conducted by NMFS on interaction
mitigation techniques for sea turtles, seabirds, and marine mammals, as
required under Sec. 665.814 of this title.
(2) Longline vessel operators (captains) must supervise and be in
visual and/or verbal contact with the crew during any handling or
release of marine mammals.
(3) A NMFS-approved placard setting forth marine mammal handling
and/or release procedures must be posted on the longline vessel in a
conspicuous place that is regularly accessible and visible to the crew.
(4) A NMFS-approved placard instructing vessel crew to notify the
captain in the event of a marine mammal interaction must be posted on
the longline vessel in a conspicuous place that is regularly accessible
and visible to the crew.
0
5. Effective February 27, 2013, add a new paragraph (c) to Sec. 229.37
to read as follows:
Sec. 229.37 False Killer Whale Take Reduction Plan.
* * * * *
(c) Gear requirements. (1) While deep-setting, the owner and
operator of a vessel registered for use under a Hawaii longline limited
access permit must use only hooks meeting the following specifications:
(i) Circle hook with hook shank containing round wire that can be
measured with a caliper or other appropriate gauge, with a wire
diameter not to exceed 4.5 mm (0.177 in); and
(ii) Offset not to exceed 10 degrees.
(2) While deep-setting, owners and operators of vessels registered
for use under a valid Hawaii longline limited access permit must use
leaders and branch lines that all have a diameter of 2.0 mm or larger
if the leaders and branch lines are made of monofilament nylon. If any
other material is used for a leader or branch line, that material must
have a breaking strength of at least 400 lb (181 kg).
* * * * *
50 CFR CHAPTER VI
PART 665--FISHERIES IN THE WESTERN PACIFIC
0
6. The authority citation for part 665 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
7. In Sec. 665.806, effective December 31, 2012, revise paragraph
(a)(2) to read as follows:
Sec. 665.806 Prohibited area management.
(a) * * *
(2) Main Hawaiian Islands (MHI). The MHI longline fishing
prohibited area is the portion of the EEZ around Hawaii bounded by
straight lines connecting the following coordinated in the order
listed:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A............................................... 18[deg]05' 155[deg]40
'
B............................................... 18[deg]20' 156[deg]25
'
C............................................... 20[deg]00' 157[deg]30
'
D............................................... 20[deg]40' 161[deg]40
'
E............................................... 21[deg]40' 161[deg]55
'
F............................................... 23[deg]00' 161[deg]30
'
G............................................... 23[deg]05' 159[deg]30
'
H............................................... 22[deg]55' 157[deg]30
'
I............................................... 21[deg]30' 155[deg]30
'
J............................................... 19[deg]50' 153[deg]50
'
K............................................... 19[deg]00' 154[deg]05
'
A............................................... 18[deg]05' 155[deg]40
'
------------------------------------------------------------------------
* * * * *
Dated: November 20, 2012.
Alan Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2012-28750 Filed 11-28-12; 8:45 am]
BILLING CODE 3510-22-P