[Federal Register Volume 75, Number 11 (Tuesday, January 19, 2010)]
[Notices]
[Pages 2853-2856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-835]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XT76


False Killer Whale Take Reduction Team Meeting

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Notice of establishment of a False Killer Whale Take Reduction 
Team and meeting; request for comment.

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SUMMARY: NMFS is establishing a Take Reduction Team (TRT) and convening 
a TRT meeting to address the incidental mortality and serious injury of 
the Hawaii Pelagic, Hawaii Insular, and Palmyra Atoll stocks of false 
killer whales (Pseudorca crassidens) in the Hawaii-based deep-set and 
shallow-set longline fisheries. The TRT will develop a Take Reduction 
Plan (TRP) as required in the Marine Mammal Protection Act (MMPA). NMFS 
will charge the TRT with developing a plan to reduce incidental 
mortality and serious injury of these stocks in the Hawaii-based 
longline fisheries to a level less than the Potential Biological 
Removal (PBR) level for each stock within 6 months of implementation of 
the plan and to a level approaching a zero mortality and serious injury 
rate within 5 years of implementation of the plan.

DATES: The meeting will be held on February 17, 2010, from 1 p.m. to 5 
p.m., on February 18, 2010, from 8:30 a.m. to 5 p.m., and from February 
19, 2010, from 8 a.m. to 1 p.m. Comments on the inclusion within the 
scope of the TRT of non-strategic marine mammal stocks interacting with 
the Category I Hawaii-based deep-set longline fishery must be received 
by February 18, 2010.

ADDRESSES: The False Killer Whale TRT meeting will be held at the 
Sheraton Waikiki, 2255 Kalakaua Avenue, Honolulu, HI; Phone: (808) 922 
4422, Fax: (808) 931 8883.
    You may submit comments, information, or data, identified by the 
Regulation Identifier Number [RIN 0648-XT76], by any one of the 
following methods: (1) Electronic Submissions: Submit all electronic 
information via the Federal eRulemaking Portal at http://www.regulations.gov; (2) Mail: Assistant Regional Administrator, 
Protected Resources Division, National Marine Fisheries Service, 
Pacific Islands Regional Office, 1601 Kapiolani Boulevard Suite 1110, 
Honolulu, HI 96814.
    Instructions: All comments received are a part of the public record 
and may be posted to http://www.regulations.gov without change. All 
personal identifying information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information. NMFS will accept anonymous comments (enter N/A 
in the required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Nancy Young, NMFS, Pacific Islands 
Region, (808) 944-2282, [email protected]; or Kristy Long, NMFS, 
Office of Protected Resources, (301) 713-2322, [email protected].

SUPPLEMENTARY INFORMATION: Section 118(f)(1) of the Marine Mammal 
Protection Act (MMPA) requires NMFS to develop and implement take 
reduction plans designed to assist in the recovery or prevent the 
depletion of each strategic stock that interacts with Category I and II 
fisheries. It also provides NMFS discretion to develop and implement a 
take reduction plan for any other marine mammal stocks that interact 
with a Category I fishery, which the agency determines, after notice 
and opportunity for public comment, has a high level of mortality and 
serious injury across a number of such marine mammal stocks.
    The MMPA defines a strategic stock as a marine mammal stock: (1) 
for which the level of direct human-caused mortality exceeds the 
Potential Biological Removal (PBR) level; (2) which is declining and is 
likely to be listed under the Endangered Species Act (ESA) in the 
foreseeable future; or (3) which is listed as threatened or endangered 
under the ESA or as a depleted species under the MMPA (16 U.S.C. 
1362(2)). PBR is the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population. Category I or II fisheries are fisheries that, 
respectively, have frequent or occasional incidental mortality and 
serious injury of marine mammals.
    As required under section 118 (f)(7) of the MMPA, the TRT shall 
develop a draft TRP by consensus, and shall submit this draft TRP to 
NMFS not later than 6 months after the date of the establishment of the 
TRT. The Secretary of Commerce (Secretary) shall then consider the TRP, 
and no later than 60 days after the submission of the draft TRP, NMFS 
shall publish in the Federal Register the TRP and any implementing 
regulations proposed by the team for a public comment period not to 
exceed 90 days. Within 60 days of the close of the comment period, NMFS 
shall issue a final TRP and any implementing regulations.

Marine Mammal Stocks Included Within the TRT Scope

    Three false killer whale stocks identified in the U.S. Pacific 
Marine Mammal Stock Assessment Reports (SAR) (Carretta et al., 2009a) 
are included within the scope of the TRT:
    (1) False killer whale, Hawaii Pelagic stock. The Hawaii Pelagic 
stock includes false killer whales inhabiting waters outside of the 
February-September longline exclusion zone around the main Hawaiian 
Islands. The stock has been designated as strategic because the average 
annual mortality and serious injury (M&SI) of false killer whales 
incidental to the Category I Hawaii-based deep-set longline fishery 
(7.4 animals per year) exceeds the

[[Page 2854]]

stock's PBR level (2.5 animals per year) (Carretta et al., 2009b).
    (2) False killer whale, Hawaii Insular stock. The Hawaii Insular 
stock includes false killer whales inhabiting waters within the 
February-September longline exclusion zone around the main Hawaiian 
Islands. The level of M&SI of this stock is not above the stock's PBR 
level (0.8 animals per year), and the stock is not strategic (Carretta 
et al., 2009b). The Final 2008 SAR and Draft 2009 SAR for the Insular 
stock indicate no documented serious injuries or mortalities of animals 
incidental to Hawaii's longline fisheries. However, the Insular stock 
may be subject to interactions with longline fisheries: from October to 
January, a small subset of longline fishing effort takes place within 
the current stock range of the Hawaii Insular stock. Baird and Gorgone 
(2005) documented a high rate of dorsal fin disfigurements, which were 
consistent with injuries from unidentified fishing line. At the present 
time, it is unknown whether these injuries might have been caused by 
longline gear or other hook-and-line gear used around the main Hawaiian 
Islands.
    There is overlap in the geographic ranges of the Hawaii Pelagic and 
Hawaii Insular stocks, and some serious injuries and mortalities that 
were attributed to the Pelagic stock may in fact have been from the 
Insular stock. Several of the observed false killer whale takes have 
been in sets that straddled the current stock boundary (i.e., the set 
start- and set end-locations were on either side of the boundary). The 
boundaries between the stocks will likely be revised for the Draft 2010 
SAR, and takes may be reassigned from the Pelagic stock to the Insular 
stock. As a result, the Insular stock may also be listed as strategic 
in the Draft 2010 SAR. Additionally, a status review has been initiated 
to determine if listing of the insular population of Hawaiian false 
killer whales under the ESA is warranted (75 FR 316, January 5, 2010). 
Based on the overlap between the Insular and Pelagic stocks within the 
range of the Hawaii-based longline fisheries, the potential for the 
Insular population to be listed under the ESA in the foreseeable 
future, and evidence that the Insular stock is declining (Reeves et 
al., 2009), the Hawaii Insular stock of false killer whales is included 
within the scope of the TRT. NMFS solicits public comments on whether 
to include the non-strategic Insular stock within the scope of the TRT.
    (3) False killer whale, Palymra Atoll stock. The Palmyra Atoll 
stock includes false killer whales found within the U.S. Exclusive 
Economic Zone (EEZ) of Palmyra Atoll. Human-caused M&SI levels (0.3 
animals per year) do not exceed this stock's PBR (6.4 animals per 
year), and this stock is not strategic (Carretta et al., 2009b). 
However, NMFS is including this stock in the scope of the TRT because 
there are documented interactions between the Category I deep-set 
longline fishery and this stock. NMFS estimated the take rate of false 
killer whales in longline fisheries as over 4-times higher within EEZ 
waters of Palmyra Atoll (3.3 per 1000 sets) compared to the Hawaiian 
Islands EEZ (0.7 per 1000 sets) and waters outside U.S. EEZs (0.8 per 
1000 sets) (Forney and Kobayashi, 2007).
    In addition, data indicate that false killer whale depredation of 
catch and/or bait is increasing in the Hawaii-based longline fisheries. 
False killer whales have been observed while vessels are in transit, 
indicating that they may be following fishing boats. This behavior is 
likely to increase interactions, and in fact, for the first time, there 
have been multiple takes documented per set and per trip during 2008 
and 2009 (NMFS Observer Program). Based on this information, NMFS is 
concerned that the Palmyra Atoll stock may also have an increasing 
potential to interact with the longline fisheries in the near future. 
NMFS is including the Palmyra Atoll stock of false killer whales in the 
scope of the TRT based on the documented high take rates of false 
killer whales by Hawaii-based longline fisheries operating within the 
Palmyra Atoll EEZ as described above, as well as the potential for 
increased interactions in the future. NMFS solicits public comments on 
including the non-strategic Palmyra Atoll stock within the scope of the 
TRT.

Marine Mammal Stocks Not Included Within the TRT Scope

    NMFS considered additional marine mammal stocks, but determined not 
to include the following within the scope of the TRT:
    (1) False killer whale, American Samoa stock. This stock is newly 
defined for the 2010 Draft SARs, and includes false killer whales found 
within the EEZ of American Samoa. No abundance estimate or PBR level is 
currently available for this stock. Therefore, the level of M&SI 
occurring incidental to commercial fisheries, particularly the American 
Samoa longline fishery, cannot be assessed relative to PBR. However, 
NMFS analysis suggests that the estimated rate of fisheries-related 
M&SI within the American Samoa EEZ (7.8 animals per year) exceeds the 
range of likely PBRs (0.4 7.5) (NMFS, unpublished data). Additional 
research on the abundance of false killer whales in American Samoa is 
needed to resolve the stock's status. Because NMFS lacks population 
structure and abundance data, as well as relatively low observer 
coverage in the American Samoa longline fishery (as noted below), this 
stock will not be included in the scope of the TRT.
    (2) Other marine mammal stocks in the Pacific Islands Region. All 
but one of the other marine mammal stocks in the Pacific Islands Region 
that interact with the fisheries under the scope of the TRT (see below) 
are already at or below the insignificance threshold, which has been 
defined in MMPA implementing regulations as 10% of PBR (50 CFR 229.2), 
and will not be included in the scope of the TRT.
    The humpback whale (Megaptera novaeangliae) is listed as 
``endangered'' under the ESA, and designated as ``depleted'' under the 
MMPA. As a result, the Central North Pacific (CNP) stock of humpback 
whale is classified as a strategic stock (Allen and Angliss, 2009). 
Total estimated M&SI of this stock is below the PBR of 20.4, but above 
10% of PBR. The Draft 2009 SAR indicates no M&SI of this stock from 
Hawaii-based longline fisheries (Allen and Angliss 2009), but one 
serious injury was reported in the Hawaii-based shallow-set longline 
fishery during 2006, with 100% observer coverage (Forney 2009). NMFS 
previously conducted an analysis considering multiple quantitative and 
qualitative factors to identify its priorities for establishing TRTs. 
The CNP stock of humpback whales was considered a low priority, and 
only for its interactions with commercial fisheries in the Alaska 
Region. The stock's recovery does not appear to have been affected by 
interactions with commercial fisheries, as results from the 2004-2006 
Structure of Populations, Levels of Abundance, and Status of Humpbacks 
(SPLASH) project indicate stock abundance has increased by 5.5-6.0% per 
year (Allen and Angliss 2009). The humpback whale will not be included 
in the scope of the present TRT.

Commercial Fisheries Included Within the TRT Scope

    The TRT will address the following two fisheries:
    (1) Hawaii-based deep-set longline fishery. The Category I Hawaii-
based deep-set longline fishery operates both within and outside of the 
Hawaii EEZ (defined on the MMPA List of Fisheries (LOF) as the ``HI 
deep-set (tuna target) longline/set line'' and ``Western Pacific 
Pelagic (Deep-set component)''

[[Page 2855]]

fisheries). There have been numerous M&SI of false killer whales 
documented in this fishery, including an estimated 7.4 animals per year 
from the strategic Hawaii Pelagic stock of false killer whales, 0.3 
animals per year from the non-strategic Palmyra Atoll stock, and 5.4 
animals per year in international waters, where no U.S. stocks are 
currently defined under the MMPA (Carretta et al., 2009b; Forney and 
Kobayashi, 2007). At minimum, this fishery meets the MMPA requirement 
for the development of a TRP because of the level of M&SI of false 
killer whales belonging to the strategic Hawaii Pelagic stock.
    (2) Hawaii-based shallow-set longline fishery. The Category II 
Hawaii-based shallow-set longline fishery operates both within and 
outside of the Hawaii EEZ (defined on the MMPA LOF as the ``HI shallow-
set (swordfish target) longline/set line'' and ``Western Pacific 
Pelagic (Shallow-set component'' fisheries). No documented interactions 
with false killer whales have been reported in the Final 2008 SAR or 
Draft 2009 SAR (Carretta et al. 2009a, 2009b). However, there was an 
observed interaction with a false killer whale from the Hawaii Pelagic 
stock in 2008 that was determined to be a non-serious injury, and 
another observed interaction that resulted in a serious injury of 
either a false killer whale or a short-finned pilot whale, outside of 
U.S. EEZs (Forney 2009). Another false killer whale interaction was 
documented in 2009 just outside of the longline exclusion boundary (and 
thus likely from the strategic Pelagic stock), but the determination 
regarding the severity of the injury (i.e., serious versus not serious) 
has not yet been made. Due to the concern over the rapid increase in 
the number of false killer whale takes that are occurring in the deep-
set longline fishery, and the shallow-set fishery's recent interactions 
with false killer whales (potentially with a strategic stock), this 
fishery will be included in the scope of the TRT.

Commercial Fisheries Not Included Within the TRT Scope

    The following fisheries were considered, but are not included in 
the scope of the TRT:
    (1) American Samoa longline fishery. This Category II fishery 
differs from the Hawaii-based longline fisheries in terms of gear and 
fishing practices, target species, and geographical area of operation. 
Observer coverage has been less than 10% since a mandatory observer 
program began in 2006. As stated above, there is very little 
information on the level of interactions with false killer whales. Two 
false killer whales were observed killed or seriously injured by the 
fishery in 2008 (Oleson 2009), but it is unknown whether this level is 
unsustainable because an abundance estimate and calculation of PBR for 
the newly-defined American Samoa stock of false killer whales are not 
available. Because NMFS lacks information about the impact this fishery 
is having on the poorly understood American Samoa stock of false killer 
whales, and because the differences between this fishery and the two 
Hawaii-based longline fisheries would likely detract from the focus of 
the TRT, this fishery is not being included within the scope of the 
TRT.
    (2) Hawaii shortline fishery. This fishery was added to the 2010 
LOF as a Category II fishery, classified by analogy (50 CFR 229.2, 
definition of ``Category II fishery'') to the two Hawaii-based longline 
fisheries, based on the similarities between the gear used, areas 
fished, and target species in the three fisheries, and anecdotal 
reports of interactions with marine mammals off the north side of the 
island of Maui. These reports have not been confirmed, and thus the 
species involved and extent of the interactions are unknown. The 
Western Pacific Fishery Management Council (Council) is considering 
management of the fishery. Information gathered by Council staff 
indicates that the shortline fishery is very small, with few 
participants and low levels of landings. There is also a small amount 
of data available and no observer coverage. Data confidentiality would 
likely be an issue, making an understanding of the fishery and its 
potential impacts on false killer whale stocks difficult. This fishery 
will not be considered part of the scope of the TRT. However, if the 
shortline fishery is documented to interact with a strategic stock in 
the future, NMFS will consider bringing it under the scope of the TRT 
at a later time.

List of Invited Participants

     MMPA section 118 (f)(6)(C) requires that members of TRTs have 
expertise regarding the conservation or biology of the marine mammal 
species that the TRP will address, or the fishing practices that result 
in the incidental mortality or serious injury of such species. The MMPA 
further specifies that TRTs shall, to the maximum extent practicable, 
consist of an equitable balance among representatives of resource user 
and non-user interests.
    NMFS has asked the following individuals to serve as members of the 
TRT, which is tasked with developing recommendations to reduce 
mortalities and serious injuries of three false killer whale stocks 
incidental to Hawaii-based longline fisheries: William Aila, Hui Malama 
I Kohola; Robin Baird, Cascadia Research Collective; Hannah Bernard, 
Hawaii Wildlife Fund; Steven Beverly, Secretariat of the Pacific 
Community; Brendan Cummings, Center for Biological Diversity; Paul 
Dalzell, Western Pacific Fishery Management Council; Roger Dang, 
Pacific Fishing & Supply, Inc.; Clint Funderburg, Fishing Vessels 
Rachel and Golden Sable; John Hall, Fishing Vessel Zephyr; Kristy Long, 
NMFS Office of Protected Resources; Kristine Lynch, Marine Mammal 
Commission; Paul Nachtigall, Hawaii Institute of Marine Biology; David 
Nichols, State of Hawaii; Victoria O'Connell, Coastal Marine Research; 
Jerry Ray, Fishing Vessel Katy Mary; Andrew Read, Duke University; 
Lance Smith, NMFS Pacific Islands Regional Office; Ryan Steen, Stoel 
Rives LLP; and Sharon Young, The Humane Society of the United States.
    Other individuals from NMFS and state and Federal agencies may be 
present as observers or for their scientific expertise. Members of TRTs 
serve without compensation, but may be reimbursed by NMFS, upon 
request, for allowable travel costs and expenses incurred in performing 
their duties as members of the team. The TRT will hold its first 
meeting from February 17-19, 2010 in Honolulu, Hawaii (see DATES and 
ADDRESSES).
    NMFS fully intends to conduct the TRT process in a way that 
provides for national consistency yet accommodates the unique regional 
characteristics of the fishery and marine mammal stocks involved. Take 
Reduction Teams are not subject to the Federal Advisory Committee Act 
(5 App. U.S.C.).
    Meetings are open to the public.

Public Comments Solicited

    Comments are solicited on the inclusion within the scope of the TRT 
of the non-strategic Hawaii Insular and Palmyra Atoll stocks of false 
killer whales.

References

    Allen, B.M. and R.P. Angliss. 2009. Draft Alaska Marine Mammal 
Stock Assessments 2009. NOAA Technical Memorandum NOAA-TM-NMFS-AFSC-
xxx, 172 p.
    Baird, R.W., and A.M. Gorgone. 2005. False killer whale dorsal fin 
disfigurements as a possible indicator of longline fishery interactions 
in Hawaiian waters. Pacific Science 59:593-601.
    Carretta J.V., K.A. Forney, M.S. Lowry, J. Barlow, J. Baker, D. 
Johnston,

[[Page 2856]]

 B. Hanson, and M.M. Muto. 2009a U.S. Pacific marine mammal stock 
assessments: 2008. NOAA Technical Memorandum NMFS-SWFSC-434. 340p.
    Carretta, J.V., K.A. Forney, M.S. Lowry, J. Barlow, J. Baker, D. 
Johnston, B. Hanson, R.L. Brownell Jr., J. Robbins, D.K. Mattila, K. 
Ralls, M.M. Muto, D. Lynch, and L. Carswell. 2009b. Draft U.S. Pacific 
Marine Mammal Stock Assessments: 2009. Available from SWFSC, 8604 La 
Jolla Shores Drive, La Jolla, CA 92037.
    Forney, K.A. 2009. Serious injury determinations for cetaceans 
caught in Hawaii longline fisheries during 1994-2008. Draft document, 
October 19, 2009. PSRG-2009-16.
    Forney, K.A. and D.R. Kobayashi. 2007. Updated estimates of 
mortality and injury of cetaceans in the Hawaii-based longline fishery, 
1994-2005. NOAA Tech. Memo. NOAA-TM-NMFS-SWFSC-412, 30p.
    Oleson, E.M. 2009. Characteristics of the American Samoa Longline 
Fishery and Estimates of Cetacean Take, 2006-2008. PSRG-2009-14.
    Reeves, R.R., S. Leatherwood, and R.W. Baird. 2009. Evidence of a 
Possible Decline since 1989 in False Killer Wales (Pseudorca 
crassidens) around the Main Hawaiian Islands. Pacific Science 63: 253-
261.

    Dated: January 13, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-835 Filed 1-15-10; 8:45 am]
BILLING CODE 3510-22-S