[Federal Register Volume 75, Number 36 (Wednesday, February 24, 2010)]
[Notices]
[Pages 8305-8309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3746]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XU10


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Proposed Permit

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

ACTION:  Notice; request for comments.

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SUMMARY:  NMFS proposes to issue a permit for a period of three years 
to authorize the incidental, but not intentional, taking of individuals 
from the Central North Pacific (CNP) stock of endangered humpback 
whales (Megaptera novaeangliae) by the Hawaii-based longline fisheries 
(deep-set and shallow-set). In accordance with the Marine Mammal 
Protection Act (MMPA), NMFS has made a preliminary determination that 
incidental taking from commercial fishing will have a negligible impact 
on CNP humpback whales; a recovery plan was completed in 1991; and 
vessels have been registered, a monitoring plan is in place, and a NMFS 
has insufficient funds to develop a Take Reduction Plan (TRP) at this 
time to address taking in these fisheries. Accordingly, NMFS proposes 
to issue the required permits to the Hawaii-based longline fisheries. 
NMFS solicits public comments on the negligible impact determination 
and on the proposal to issue this permit.

DATES: Comments must be received by March 26, 2010.

ADDRESSES:  A draft of the negligible impact determination is available 
on the Internet at the following address: http://fpir.noaa.gov/. 
Written copies of the determination may be requested from, and comments 
on the determination and proposed permit should be sent to: Lisa Van 
Atta, Assistant Regional Administrator, Protected Resources Division, 
NMFS Pacific Islands Region, 1601 Kapiolani Boulevard, Suite 1110, 
Honolulu, HI 96814. Comments may also be sent by e-mail to: 
[email protected] or by fax to (301) 427-2533. Comments received 
after the 30-day comment period may not be considered or made part of 
the record.
    The recovery plan for humpback whales is available on the Internet 
at the following address: http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.

FOR FURTHER INFORMATION CONTACT:  Lisa Van Atta, Assistant Regional 
Administrator, Protected Resources Division, Pacific Islands Region, 
(808) 944-2257 or Tom Eagle, Office of Protected Resources, (301) 713-
2322, ext. 105.

SUPPLEMENTARY INFORMATION: NMFS is now considering the issuance of a 
permit under MMPA section 101(a)(5)(E) to vessels registered in the 
Hawaii-based longline fisheries (deep-set and shallow-set) to 
incidentally take individuals from the CNP stock of humpback whales 
(Megaptera novaeangliae), which are listed as endangered under the 
Endangered Species Act (ESA).
    The Hawaii-based longline fisheries do not take other species or 
stocks of threatened or endangered marine mammals; therefore, no other 
species or stocks are considered for this proposed permit. The 
information available from the Hawaii-based deep-set longline fishery 
since 1994 indicates that there has never been incidental mortality or 
serious injury of CNP humpback whales; therefore, none is anticipated 
in the 3-year duration of the permit. Since 1994, there has been only 
one serious injury of a CNP humpback whale in the Hawaii-based shallow-
set longline

[[Page 8306]]

fishery; that serious injury occurred in 2006. Consequently, the permit 
would authorize harassment and non-lethal injury of humpback whales 
incidental to the deep-set longline fishery. Permitted lethal (serious 
injury or mortality) taking of CNP humpback whales incidental to the 
Hawaii-based longline fisheries is limited to the shallow-set fishery.
    The data for considering such an authorization were reviewed 
coincident with the publication of the 2010 List of Fisheries (LOF) (74 
FR 58859, November 16, 2009), and the draft 2009 marine mammal stock 
assessment reports (SAR) (Allen and Angliss 2009). The taking of this 
stock of humpback whales occurs incidental to fisheries in Alaskan, as 
well as Hawaiian, waters. The current negligible impact determination 
includes taking in Alaska and Hawaii waters; however, this proposed 
permit is limited to the Hawaii-based longline fisheries. Alaska-based 
fisheries will be addressed in a future permit.

Statutory Background

    Section 101(a)(5)(E) of the MMPA (16 U.S.C. 1371(a)(5)(E)) requires 
NMFS to authorize the incidental taking of individuals from marine 
mammal species or stocks listed as threatened or endangered under the 
ESA, as amended (16 U.S.C. 1531 et seq.) in the course of commercial 
fishing operations if NMFS determines that: (1) incidental mortality 
and serious injury will have a negligible impact on the affected 
species or stock; (2) a recovery plan has been developed or is being 
developed for such species or stock under the ESA; and (3) where 
required under section 118 of the MMPA, a monitoring program has been 
established, vessels engaged in such fisheries are registered in 
accordance with section 118 of the MMPA, and a TRP has been developed 
or is being developed for such species or stock.

History of Applying Negligible Impact in Fisheries

    Among the requirements of MMPA section 101(a)(5)(E) to issue a 
permit to take ESA-listed marine mammals incidental to commercial 
fishing, NMFS must determine whether the incidental taking from 
commercial fisheries would have a negligible impact on the affected 
stock or stocks of threatened or endangered marine mammals. A 
negligible impact determination is required pursuant to MMPA section 
101(a)(5) (A) & (D) for authorizing the take of small numbers of any 
stock of marine mammals incidental to activities other than commercial 
fishing (termed the ``Small Take Program'') and under MMPA section 
101(a)(5)(E) authorizing the take of threatened or endangered marine 
mammals incidental to commercial fishing operations.
    Under the MMPA's provisions for the Small Take Program, NMFS must 
determine if the taking (by harassment, injury, and mortality) 
incidental to specified activities will have a negligible impact on the 
affected stocks of marine mammals. For permitting the take of 
threatened or endangered marine mammals incidental to fishing 
operations under the MMPA, NMFS must determine if mortality and serious 
injury incidental to commercial fisheries will have a negligible impact 
on the affected species or stocks of marine mammals.
    NMFS has implemented these programs, including a qualitative 
definition of negligible impact, through regulations and has relied 
upon qualitative and quantitative approaches to determine the levels of 
taking that would result in a negligible impact to affected species or 
stocks of marine mammals. The quantitative approach is more appropriate 
for serious injury and mortality than for non-lethal takes because 
mortality and serious injury are considered removals from the 
population and can be evaluated by well-documented models of population 
dynamics.
    The MMPA does not define ``negligible impact.'' There is, however, 
a reference to negligible impact in the House of Representatives 
committee report for the MMPA Amendments of 1981. That report provides 
that, ``'negligible' is intended to mean an impact which is able to be 
disregarded. In this regard, the committee notes that Webster's 
Dictionary defines the term ``negligible'' to mean ``so small or 
unimportant or of so little consequence as to warrant little or no 
attention'' (House of Representatives, Report 97-228, September 16, 
1981). NMFS defined negligible impact in regulations for the Small Take 
Program (50 CFR 216.103) as ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.''
    This qualitative definition of negligible impact was the standard 
NMFS used to implement the Small Take Program from its beginning in 
1981 through 1994, when additional amendments to the MMPA required a 
more quantitative approach for assessing what level of removals from a 
population stock of marine mammals could be considered a negligible 
impact. It remains the only formal definition of negligible impact for 
implementing the MMPA, and its use was expanded to include 
determinations related to incidental taking from commercial fishing (50 
CFR 229.2).
    The MMPA Amendments of 1994 were enacted primarily to establish a 
regime to govern the taking of marine mammals incidental to commercial 
fishing operations, including MMPA section 101(a)(5)(E). These 
amendments were based in large part on a legislative proposal NMFS 
submitted to Congress in 1992. This legislative proposal was, in turn, 
based on recommended guidelines, required by MMPA section 114, from the 
Marine Mammal Commission (Commission) in early 1990 (Recommended 
Guidelines to Govern the Incidental Taking of Marine Mammals in the 
Course of Commercial Fishing Operations after October 1993, transmitted 
to NMFS on July 12, 1990). In these guidelines, the Commission 
recommended, among five other characteristics of a mechanism to govern 
the take of threatened and endangered marine mammals incidental to 
fishing, `` the authorized level of take would have a negligible effect 
on population size and recovery time...'' The Commission provided 
initial quantitative guidance on negligible effect on population size 
and recovery time as the following: ``an effect that (a) will not cause 
or contribute to a further decline in distribution or size lasting more 
than twelve months; and/or (b) will not cause greater than a 10 percent 
increase in the best available estimate of the time it will take the 
affected species or population to recover to its maximum net 
productivity level.''
    The Commission's two-part recommendation suggests that a take would 
be negligible if it had an effect lasting no more than 12 months (that 
is, one that would be so small that it could not be detected from 
natural variability or would be expected to be alleviated by the next 
breeding season) or would delay the period of recovery by no more than 
10 percent. The first of these quantitative approaches is more 
appropriate for an activity that would have a relatively short duration 
relative to the life expectancy of the affected stocks of marine 
mammals and, in the case of commercial fishing, for the remote 
likelihood of serious injury or mortality indicated by classification 
as a Category III fishery. Where incidental mortality or serious injury 
may occur on a more regular basis, as expected for interactions with 
Category I or II commercial fisheries, the delay-in-recovery standard 
would be more appropriate.

[[Page 8307]]

    NMFS has consistently used the Commission's delay-in-recovery 
guideline in distinguishing negligible from non-negligible impact. To 
apply this criterion, however, NMFS had to estimate what annual levels 
of removal would cause no more than a 10-percent delay in time to 
recovery. Such an effort was initiated at a NMFS-convened workshop 
(June 1994) to develop guidelines for preparing marine mammal stock 
assessment reports. Among the many items considered at that workshop, 
participants agreed that recovery factors (RF) used in the calculation 
of Potential Biological Removal (PBR) for each stock of marine mammals 
should compensate for uncertainty and possible unknown estimation 
errors. In discussing the recovery factor for stocks of endangered 
species of marine mammals, participants noted that a RF of 0.1 would 
preserve 90 percent of net annual production for recovery of the stock, 
limiting the proportion of net annual production of the stock available 
for authorization of mortality or serious injury incidental to human-
caused mortality. Participants also stated that reserving such a high 
proportion of net annual production of endangered species was 
appropriate to `` allow stocks to recover at near maximum rates, and to 
minimize the probability that naturally occurring stochastic mortality 
would result in extinction of the stock'' (Barlow et al., 1995 at 10). 
Workshop participants also noted, ``authorized levels of human-related 
mortality should increase recovery time of endangered stocks by no more 
than 10 percent (consistent with the goal stated in NMFS legislative 
proposal)'' (Barlow et al. 1995 at 11, 12). Consequently, participants 
at the workshop recommended, and NMFS accepted, after public review and 
comment, that mortality and serious injury remaining at or below PBR 
for an endangered stock (with 0.1 as the RF in the PBR calculation) 
would have an insignificant or negligible impact on the affected stock.
    In applying the negligible impact criterion to determinations made 
initially under the MMPA Amendments of 1994, NMFS understood that total 
human-caused mortality and serious injury limited to a level no greater 
than a PBR calculated with RF of 0.1 would be negligible; however, MMPA 
section 101(a)(5)(E) required a determination related to the impact of 
mortality and serious injury incidental to commercial fishing rather 
than incidental to all human activities. Accordingly, NMFS proposed to 
use, and subsequently used, 10 percent of any stock's PBR as the upper 
limit of mortality and serious injury incidental to commercial fishing 
in making the first negligible impact determinations (60 FR 31666, June 
16, 1995 (proposed) and 65 FR 45399, August 31, 1995 (interim)). A 
rationale supporting this approach was that a negligible (or 
insignificant) level of fishery-related mortality and serious injury 
should be only a small portion of the maximum level of mortality and 
serious injury a stock could sustain. NMFS noted that the threshold 
value was a starting point; that is, the criterion should not be used 
rigidly but should produce the first estimate, which, in turn, could be 
modified on a case-by-case basis according to existing information. 
Although 10 percent of PBR was used in 1995 in issuing permits to 
fisheries under MMPA section 101(a)(5)(E), NMFS later became concerned 
that 10 percent of PBR may result in a much smaller number than the 10-
percent-delay criterion would require (Wade and Angliss, 1997).
    Later, Wade (1998) summarized the robustness trials conducted in 
support of the PBR approach for marine mammal conservation, including 
an aspect that was missing from simulations conducted for the NMFS-
convened workshop in 1994: exploring the maximum level of annual 
removals from a population that would result in no more than a 10 
percent delay in the time a population would need for recovery to its 
Maximum Net Productivity Level (MNPL). Wade (1998) found that an upper 
limit of annual removals equal to the value of a PBR calculation with a 
RF of 0.15 would allow 95 percent of simulations to equilibrate at or 
above MNPL, which was an initial step in quantifying the maximum number 
of annual removals resulting in a negligible impact. However, in some 
applications the negligible impact standard must also address a 
performance criterion for marine mammal stocks that are not necessarily 
depleted. Wade (1998), therefore, reported that an upper limit of 
annual mortality limited to a value equal to a PBR calculation with a 
RF of 0.1 would allow 95 percent of simulations to equilibrate within 
95 percent of the carrying capacity of the affected stock of marine 
mammals.
    Wade's (1998) performance testing included removals to the 
threshold level for a period of 100 years and evaluated the robustness 
of each case over a range of bias or uncertainty in productivity rates, 
abundance estimation, and mortality estimation. Thus, the limits are 
appropriate for use on long-term average removals and do not indicate 
that a short-term level of removal exceeding the threshold would delay 
time to recovery by more than 10 percent.
    In 1998, NMFS published a notice (63 FR 71894, December 30, 1998) 
advising the public that the agency was extending the 3-year permit 
issued to fisheries in 1995 to authorize the taking of threatened or 
endangered marine mammals. This notice also informed the public that 
NMFS considered the 6-month extension of the permit an opportunity to 
review existing criteria for the issuance of permits and to address 
issues that have arisen since the permits were first issued. NMFS 
solicited public comments to develop alternatives to 10 percent of PBR 
as a criterion for determining negligible impact; no comments were 
received.
    Having received no comments upon which to develop alternatives for 
determining negligible impact, NMFS published a notice proposing to 
issue permits under MMPA section 101(a)(5)(E) in 1999 (64 FR 28800, May 
27, 1999). The notice contained a statement that NMFS, through internal 
deliberation, had adopted the following criteria for making negligible 
impact determinations for such permits:
    (1) The threshold for initial determination will remain at 0.1 PBR. 
If total human-related serious injuries and mortalities are less than 
0.1 PBR, all fisheries may be permitted.
    (2) If total human-related serious injuries and mortalities are 
greater than PBR, and fisheries-related mortality is less than 0.1 PBR, 
individual fisheries may be permitted if management measures are being 
taken to address non-fisheries-related serious injuries and 
mortalities. When fisheries-related serious injury and mortality is 
less than 10 percent of the total, the appropriate management action is 
to address components that account for the major portion of the total.
    (3) If total fisheries-related serious injuries and mortalities are 
greater than 0.1 PBR and less than PBR and the population is stable or 
increasing, fisheries may be permitted subject to individual review and 
certainty of data. Although the PBR level has been set up as a 
conservative standard that will allow recovery of a stock, there are 
reasons for individually reviewing fisheries if serious injuries and 
mortalities are above the threshold level. First, increases in 
permitted serious injuries and mortalities should be carefully 
considered. Second, as serious injuries and mortalities approach the 
PBR level, uncertainties in elements such as population size,

[[Page 8308]]

reproductive rates, and fisheries-related mortalities become more 
important.
    (4) If the population abundance of a stock is declining, the 
threshold level of 0.1 PBR will continue to be used. If a population is 
declining despite limitations on human-related serious injuries and 
mortalities below the PBR level, a more conservative criterion is 
warranted.
    (5) If total fisheries-related serious injuries and mortalities are 
greater than PBR, permits may not be issued.
    Criterion 1 is the starting point for analyses. If this criterion 
is satisfied, the analysis would be concluded. The remaining criteria 
describe alternatives under certain conditions, such as fishery 
mortality below the negligible threshold but other human-caused 
mortality above the threshold, or fishery and other human-caused 
mortality between the negligible threshold and PBR for a stock that is 
increasing or stable. If criterion 1 is not satisfied, NMFS may use one 
of the other criteria, as appropriate.
    In 2000, NMFS issued a permit to the CA/OR drift gillnet fishery to 
authorize the taking of threatened and endangered marine mammals 
incidental to its operation (65 FR 64670, October 30, 2000). For that 
permit, as for the current permit, NMFS used the criteria adopted in 
1999 to distinguish between negligible and non-negligible impact on 
affected stocks of marine mammals.

Description of the Fishery

    The Hawaii-based longline fisheries consist of two separately-
managed fisheries: the deep-set (tuna-target) fishery and the shallow-
set (swordfish-target) fishery. Both fisheries are limited-access 
fisheries, with 164 permits that are transferable. The number of active 
vessels in the combined deep-set and shallow-set longline fishery 
peaked at 141 vessels in 1991. The number of vessels in the combined 
longline fisheries has since ranged from 101 to 127. In 2008, there 
were 127 Hawaii-based longline vessels were active in the deep-set 
fishery, and 27 vessels were active in the shallow-set fishery. The 
deep-set fishery operates year-round. Hawaii-based longline vessels 
vary their fishing grounds depending on their target species. Most 
effort is to the north and south of the Hawaiian Islands between the 
equator and 40[deg] N and longitudes 140[deg] and 180[deg] W; however, 
the vast majority of deep-set fishing occurs south of 20[deg] N.
    Under Federal regulations, the fishery is generally restricted to 
waters outside of 50 nautical miles from the entire Northwestern 
Hawaiian islands (NWHI) because of protected species (Hawaiian monk 
seal, Monachus schauinslandi) interactions. Several 25-75 mile closed 
areas also exist around the main Hawaiian islands to prevent gear 
conflicts with smaller fishing vessels. Current regulations require 100 
percent observer coverage for shallow swordfish sets and 20 percent 
observer coverage for deep tuna sets. There are fleet-wide annual 
limits on the number of allowable sea turtle interactions in the 
fisheries.

Current Negligible Impact Determination

    NMFS evaluated the best available information in assessing the 
interactions between ESA-listed CNP humpback whales and the Hawaii-
based longline fisheries (including observer data from 1994 to 2007), 
other fisheries (using primarily stranding and sightings data), and 
other sources of human-caused serious injury and mortality, in order to 
determine whether the incidental mortality and serious injury from all 
commercial fisheries is having a negligible impact on the stock. Allen 
and Angliss (2009) use an annual rate of increase of 7 percent for this 
stock and note this rate is considered conservative for the stock. 
Because the stock is increasing despite annual human-caused mortality 
and serious injury exceeding 10 percent of PBR, criterion 3 is the 
appropriate criterion for consideration. Thus, fishery-related 
mortality and serious injury would be considered negligible if such 
mortality, in combination with other human sources of mortality, does 
not exceed PBR, subject to individual review and certainty of data.
    Commercial fisheries known to incidentally take humpback whales 
include longline fisheries, pot fisheries, known and unknown net 
fisheries, and purse seine fisheries in Alaska and Hawaii (Allen and 
Angliss (2009). The SAR did not include the serious injury of a 
humpback whale incidental to the Hawaii-based shallow-set longline 
fishery because the necessary information was not available to SAR 
authors when the draft was originally prepared in 2008). Since the 
initiation of the NMFS observer program in 1994, there have been no 
reported mortalities or serious injuries of CNP humpback whales in the 
Hawaii-based deep-set longline fishery. However, there was one serious 
injury of a CNP humpback whale in the Hawaii-based shallow-set longline 
fishery in 2006.
    The SAR also did not include reports of entangled humpback whales 
observed in Hawaii. The gear entangling these whales did not originate 
in Hawaii; therefore, some of these entangled whales may have been 
included in reports from Alaska or may represent recreational, rather 
than commercial, fishing gear. For this analysis, NMFS has identified 9 
entanglements from 2003 through 2007 that may be serious injuries (5-
year mean is 1.8 whales).
    Mean annual mortality and serious injury rate attributable to 
commercial fisheries over the 2003 - 2007 period is 5.4 whales per year 
(3.4 for the Alaska fisheries (Table 7 in the accompanying negligible 
impact analysis); 0.0 for the Hawaii-based deep-set longline fishery; 
0.2 for the Hawaii-based shallow-set longline fishery (Forney, 2009), 
and 1.8 serious injuries reported in HI-observed entanglements (26.5 
percent of the stock's PBR). The recently authorized removal of the set 
certificate program, which could allow for the expansion of the 
shallow-set fishery that primarily targets swordfish, may increase 
serious injury or mortality of humpback whales; however, an exposure 
analysis indicated that the expanded fishery is not likely to lethally 
take more than one humpback whale per year.
    The total of mortality and serious injury of CNP humpback whales 
incidental to commercial fishing operations is estimated to be 5.4 
whales per year from 2003-2007. This minimum estimate is greater than 
10 percent of the calculated PBR for the CNP stock and less than the 
stock's PBR (20.4). Vessel strikes (1.6 whales per year) and 
entanglement in recreational fishing gear (0.2 whales per year) have 
been reported as additional human-caused mortality and serious injury 
for this stock of humpback whales. Total human-caused mortality and 
serious injury are less than the stock's PBR and are not expected to 
delay recovery of the stock by more than 10 percent more than recovery 
time if these removals did not occur. A more detailed description of 
this negligible impact determination is available on the Internet; 
written copies are also available upon request (see ADDRESSES).

Current Permit

    Based on the above assessment, NMFS concludes that the incidental 
mortality and serious injury from commercial fishing would have a 
negligible impact on the CNP stock of humpback whales. The impacts on 
the human environment of continuing and modifying the shallow-set 
longline fishery, including the taking of threatened and endangered 
species of marine mammals, were analyzed in a draft Supplemental 
Environmental Impact Statement prepared by the Western Pacific Fishery 
Management Council (WPFMC 2008) pursuant to the

[[Page 8309]]

National Environmental Policy Act (NEPA) (42 U.S.C. 4231 et seq.) and 
in a biological opinion prepared pursuant to the ESA in October 2009 on 
this modification. The proposed permit would have no additional impact 
to the human environment or effects on threatened or endangered species 
beyond those analyzed in these documents. NMFS now reviews the 
remaining requirements to issue a permit to take CNP humpback whales 
incidental to the Hawaii-based longline fisheries.
    Recovery Plan. The recovery plan for humpback whales was completed 
and in place in 1991. This plan has guided ESA recovery efforts for 
humpback whales globally since that time. Accordingly, the requirement 
to have a recovery plan in place or being developed is satisfied.
    Vessel Registration. MMPA section 118(c)(5)(A) provides that 
registration of vessels in fisheries should, after appropriate 
consultations, be integrated and coordinated to the maximum extent 
feasible with existing fisher licenses, registrations, and related 
programs. Participants in the Hawaii-based longline fisheries are 
required to hold a permit under 50 CFR 665.21. The MMPA registration 
program has been integrated in this permitting system for the Hawaii-
based longline fisheries. Accordingly, vessels in the fisheries are 
registered in accordance with MMPA section 118.
    Monitoring Program. As noted above, the Hawaii-based longline 
fisheries have been observed since the early 1990s. Current levels of 
observer coverage in the deep-set fishery (20 percent or higher) are 
adequate to produce reliable estimates; mandatory observer coverage in 
the shallow-set fishery is 100%. Accordingly, as required by MMPA 
section 118, a monitoring program is in place.
    Take Reduction Plan (TRP). Subject to available funding, MMPA 
section 118 requires a TRP in cases where a strategic stock interacts 
with a Category I or II fishery. The CNP stock of humpback whales is 
considered a strategic stock under the MMPA because humpback whales are 
listed under the ESA. This strategic stock interacts with the Category 
I and II Hawaii-based longline fisheries. Currently, there is no TRP 
for the CNP stock of humpback whales. The short- and long-term goals of 
a TRP are to reduce mortality and serious injury of marine mammals 
incidental to commercial fishing. However, the obligations to develop 
and implement a TRP are subject to the availability of funding. MMPA 
section 118(f)(3) (16 U.S.C. 1387(f)(3)) contains specific priorities 
for developing TRPs.
    NMFS has insufficient funding available to simultaneously develop 
and implement a TRP for all stocks that interact with Category I or 
Category II fisheries. Most recently in March of 2009, NMFS considered 
multiple quantitative and qualitative factors to indentify its 
priorities for establishing take reduction teams (TRTs) and collecting 
data. As provided in MMPA section 118(f)(6)(A) and (f)(7), NMFS used 
the most recent stock assessment reports (SARs) and List of Fisheries 
(LOF) as the basis to determine its priorities for establishing TRTs 
and developing TRPs. Through this evaluative process, the CNP stock of 
humpback whale was rated as ``low'' priority for establishing a TRT. 
Indeed, observer reports since 1994 indicate that there have been zero 
serious injuries or mortalities of a CNP humpback whale in the Hawaii-
based deep-set longline fishery, and only one serious injury (and no 
mortalities) of a CNP humpback whale in the Hawaii-based shallow-set 
longline fishery. Accordingly, given these factors and NMFS' 
prioritization process, a TRP will be deferred under section 118 as 
other stocks have a higher priority for any available funding for 
establishing new TRPs .
    As noted in the summary above, all of the requirements to issue a 
permit to the Hawaii-based longline fisheries have been satisfied. 
Accordingly, NMFS proposes to issue a permit to the Hawaii-based deep- 
and shallow-set longline fisheries for the taking CNP humpback whales 
incidental to the fisheries' operations. Taking of these whales in the 
deep-set fishery would be limited to non-lethal taking only (harassment 
and injury). Taking of these whales in the shallow-set fishery would 
include non-lethal taking and up to one lethal (serious injury or 
mortality) take per year in the shallow-set fishery. NMFS solicits 
public comments on the proposed permit and the preliminary 
determinations supporting the permit.

References

    Allen, B.M. and R.P. Angliss, R.P. 2009. Draft Alaska Marine Mammal 
Stock Assessments, 2009. U.S. Department of Commerce, National Marine 
Fisheries Service, Alaska Fisheries Science Center.
    Barlow, J., S. Swartz, T. Eagle and P. Wade. 1995. U.S. Marine 
Mammal Stock Assessments: Guidelines for Preparation, Background, and a 
Summary of the 1995 Assessments. U.S. Department of Commerce, NOAA-TM-
NMFS-SWFSC-219.
    Carretta, J.V., K.A. Forney, Lowry, M.S., Barlow, J., Baker, J., 
Johnston, D., Hanson, B., Brownell Jr., R.L., Robbins, J., Mattila, 
D.K., Ralls, K., Muto, M.M.,Lynch, D., and L. Carswell. 2009. Draft 
U.S. Pacific Marine Mammal Stock Assessments: 2009. Department of 
Commerce, National Marine Fisheries Service, Southwest Fisheries 
Science Center.
    Forney, K.A. 2009. Draft Serious injury determinations for 
cetaceans caught in Hawaii longline fisheries during 1994-2008. Working 
paper reviewed by the Pacific Scientific Review Group (PSRG-2009-9).
    Wade, P. R. 1998. Calculating limits to the allowable human-caused 
mortality of cetaceans and pinnipeds. Mar. Mamm. Sci., 14(1): 1-37.
    Wade, P.R. and R. P. Angliss. 1997. Guidelines for assessing marine 
mammal stocks: report of the GAMMS workshop, April 3-5, 1996, Seattle, 
Washington. NOAA-TM-NMFS-OPR-12.
    Western Pacific Regional Fishery Management Council (WPFMC), 2008. 
Management Modifications for theHawaii-based Shallow-set Longline 
Swordfish Fishery: Proposal to Remove Effort Limit, Eliminate Set 
Certificate Program, and Implement New Sea Turtle Interaction Caps. 
Draft Amendment 18 to the Fishery Management Plan for Pelagic Fisheries 
of the Western Pacific Region Including a Draft Supplemental 
Environmental Impact Statement. August 12, 2008.

    Dated: February 19, 2010.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-3746 Filed 2-23-10; 8:45 am]
BILLING CODE 3510-22-S