[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

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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

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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.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR29NO12.000

BILLING CODE 3510-22-C

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