[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Proposed Rules]
[Pages 42082-42099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17965]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 229 and 665

[Docket No. 110131070-1084-01]
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: Proposed rule; notice of availability of draft take reduction 
plan; request for comments.

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SUMMARY: NMFS announces the availability of a Draft False Killer Whale 
Take Reduction Plan developed by the False Killer Whale Take Reduction 
Team. This proposed rule would implement the proposed False Killer 
Whale Take Reduction Plan (FKWTRP), which is based on consensus 
recommendations included in the Draft False Killer Whale Take Reduction 
Plan. The proposed FKWTRP includes some changes and modifications 
proposed by NMFS. This action is necessary because current mortality 
and serious injury of the Hawaii Pelagic stock of false killer whales 
incidental to the Hawaii-based pelagic longline fisheries are above the 
stock's potential biological removal (PBR), 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 through both regulatory and non-regulatory measures. 
Proposed 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. 
NMFS is also proposing non-regulatory measures, including research and 
data collection recommendations.

DATES: Written comments on the proposed rule must be received no later 
October 17, 2011.

ADDRESSES: Comments on the proposed rule, identified by 0648-BA30, may 
be sent to either of the following addresses:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov; or.
     Mail: Mail written comments to Regulatory Branch Chief, 
Protected Resources Division, National Marine Fisheries Service, 
Pacific Islands Regional Office (PIR), 1601 Kapiolani Blvd., Suite 
1110, Honolulu, HI 96814, Attn: Proposed False Killer Whale Take 
Reduction Plan.
    Instructions: Comments must be submitted to one of these two 
addresses to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted to www.regulations.gov without change. All personal 
identifying information (e.g., 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). You may submit 
attachments to electronic comments in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    This proposed rule (the proposed False Killer Whale Take Reduction 
Plan), the recommendations submitted by the False Killer Whale Take 
Reduction Team (FKWTRT) (the Draft False Killer Whale Take Reduction 
Plan), references, and other background documents are available at 
www.regulations.gov, or 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 [see ADDRESSES].

FOR FURTHER INFORMATION CONTACT: Nancy Young, NMFS PIR, 
[email protected], 808-944-2282; Lance Smith, NMFS PIR,

[[Page 42083]]

[email protected], 808-944-2258; or Kristy Long, NMFS Office of 
Protected Resources, [email protected], 301-713-2322.

SUPPLEMENTARY INFORMATION: 

Summary

    The proposed False Killer Whale Take Reduction Plan (FKWTRP) is 
intended to meet the statutory mandates and requirements of the Marine 
Mammal Protection Act (MMPA, 16 U.S.C. 1362 et seq.) through both 
regulatory measures and non-regulatory components, including research 
and data collection priorities. The proposed regulatory measures 
include: Hook and branchline requirements for the deep-set longline 
fishery; modification of an existing longline prohibited area around 
the Main Hawaiian Islands; a new longline prohibited area that would be 
closed to deep-set longline fishing only when triggered by a specified 
level of false killer whale mortalities or serious injuries; expanded 
content of the existing, mandatory Protected Species Workshop for 
Hawaii-based longline fisheries to include new information on marine 
mammal interaction mitigation techniques certification; a requirement 
for longline vessel captains to supervise the handling and release of 
hooked or entangled marine mammals; and required posting of NMFS-
approved placards on longline vessels. Proposed non-regulatory 
measures, the implementation of which would be NMFS' responsibility, 
include: Increasing the precision of bycatch estimates in the deep-set 
longline fishery; notifying the False Killer Whale Take Reduction Team 
(FWKTRT) when there is an observed interaction of a known or possible 
false killer whale; expediting the process for confirming the species 
identification of animals involved in such interactions and for making 
serious injury determinations; specifying changes to the observer 
training and data collection protocols; expedited processing of data 
from NMFS' 2010 survey of the Hawaiian Islands to obtain updated marine 
mammal abundance estimates; and reconvening the FWKTRT at regular 
intervals. The proposed FKWTRP also includes prioritized research 
recommendations to better inform long-term solutions for reducing false 
killer whale mortalities and serious injuries. More details on the 
proposed measures may be found in the sections ``Proposed Regulatory 
Measures,'' ``Proposed Non-Regulatory Measures,'' and ``Additional 
Research and Data Collection'' below.

Bycatch Reduction Requirements in the MMPA

    Section 118(c)(1) of the MMPA requires NMFS to classify all U.S. 
commercial fisheries according to the level of serious injury and 
mortality (death) of marine mammals that occurs incidental to each 
fishery. NMFS reviews and revises these classifications each year, and 
publishes the annual MMPA List of Fisheries in the Federal Register. 
The MMPA and implementing regulations (50 CFR 229.2) define three 
categories of fisheries: Category I, II, and III fisheries as those 
that, respectively, have frequent, occasional, or a remote likelihood 
of or no known incidental mortality or serious injury (M&SI) of marine 
mammals. NMFS has also established numerical definitions of these three 
categories that quantify each fishery's effects on individual marine 
mammal stocks.
    Section 118(f)(1) of the Marine Mammal Protection Act (MMPA) 
requires NMFS to develop and implement take reduction plans to assist 
in the recovery or prevent the depletion of each strategic marine 
mammal stock that interacts with Category I and II fisheries. Category 
I and II fisheries are fisheries that have frequent or occasional 
incidental M&SI of marine mammals, respectively. Section 118(f)(1) 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 M&SI 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 a 
sustainability threshold called the ``potential biological removal'' 
(PBR) level; (2) which is declining and 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 deaths, that can be removed annually 
from a stock, while allowing that stock to reach or maintain its 
optimum sustainable population level.
    The immediate goal of a take reduction plan for a strategic stock 
is to reduce, within six months of its implementation, the incidental 
M&SI of marine mammals from commercial fishing to levels less than the 
PBR level established for that stock. The long-term goal is to reduce, 
within five years of its implementation, the incidental M&SI of marine 
mammals from commercial fishing operations to insignificant levels 
approaching a zero M&SI rate (which NMFS has defined in regulations as 
10 percent of the PBR for a stock of marine mammals, 50 CFR 229.2), 
taking into account the economics of the fishery, the availability of 
existing technology, and existing state or regional fishery management 
plans.

Scope of the Plan

Commercial Fisheries

    The proposed FKWTRP addresses incidental M&SI of false killer 
whales (Pseudorca crassidens) in the Category I Hawaii-based deep-set 
longline fishery (defined on the List of Fisheries as the ``HI deep-set 
(tuna target) longline/set line'' and ``Western Pacific Pelagic (Deep-
set component)'' fisheries), and the Category II Hawaii-based shallow-
set longline fishery (defined on the List of Fisheries as the ``HI 
shallow-set (swordfish target) longline/set line'' and ``Western 
Pacific Pelagic Shallow-set component'' fisheries). These fisheries 
operate in both U.S. waters and on the high seas. In the List of 
Fisheries, the high seas components of the fisheries are not considered 
separate fisheries, but as extensions of the fisheries operating within 
U.S. waters. The proposed FKWTRP also considers potential impacts to 
marine mammal stocks from the Hawaii shortline and kaka line fisheries; 
however, because information concerning actual impacts is currently 
undeveloped, NMFS is not proposing regulations for these fisheries in 
this proposed rule.

Marine Mammal Species and Stocks

    The proposed FKWTRP is primarily focused on fishery impacts on the 
Hawaii Pelagic stock of false killer whales. Two additional stocks of 
false killer whales in the Pacific Islands Region, the Hawaii Insular 
and Palmyra Atoll stocks, are also addressed. The Hawaii Pelagic stock 
of false killer whales is the only strategic stock, as of the final 
2010 Stock Assessment Report (SAR) (Carretta et al., 2011), but all 
three are known or have potential to interact with the Category I 
Hawaii-based deep-set longline fishery.
    One additional stock of false killer whales in the Pacific Islands 
Region, the American Samoa stock, was newly defined in the 2010 SAR, 
but no abundance estimate or PBR level is currently available for this 
stock (Carretta et al., 2011). NMFS has some information from the NMFS 
Pacific Islands Regional Office (PIRO) Observer

[[Page 42084]]

Program (PIROP) on the level of M&SI occurring incidental to the 
American Samoa longline fishery, but without a PBR, NMFS has 
insufficient information to determine whether the level of incidental 
M&SI is sustainable. This proposed FKWTRP does not address bycatch of 
false killer whales in American Samoa; instead, it focuses on the 
incidental M&SI of false killer whale stocks that interact with 
fisheries known to have unsustainable levels of bycatch of this 
species. However, NMFS will continue to evaluate incidental interaction 
rates in the American Samoa longline fishery as observer coverage in 
this fishery increases, and will consider additional conservation and 
management measures if warranted by the information developed.
    The 2011 MMPA List of Fisheries (75 FR 68468, November 8, 2010) 
identifies several other species or stocks of marine mammals that have 
been observed as injured or killed incidental to the Hawaii-based deep-
set and shallow-set fisheries, including: Blainville's beaked whale, 
Hawaii stock (Mesoplodon densirostris); bottlenose dolphin, Hawaii 
Pelagic stock (Tursiops truncatus); humpback whale, Central North 
Pacific (CNP) stock (Megaptera novaeangliae); pantropical spotted 
dolphin, Hawaii stock (Stenella attenuata); Risso's dolphin, Hawaii 
stock (Grampus griseus); short-finned pilot whale, Hawaii stock 
(Globicephala macrorhynchus); striped dolphin, Hawaii stock (Stenella 
coeruleoalba); Bryde's whale, Hawaii stock (Balaenoptera edeni); Kogia 
spp. whale (Pgymy sperm whale (Kogia breviceps) or dwarf sperm whale 
(Kogia sima); Hawaii stock). With the exception of humpback whales, the 
incidental M&SI of all of these stocks is at or below the 
insignificance threshold (i.e., 10 percent of PBR), and are not 
addressed in this proposed rule. The CNP stock of humpback whales, 
although a strategic stock because of its endangered status, is not 
designated as ``strategic'' because of fishery interactions, and NMFS 
has determined that incidental taking from commercial fishing will have 
a negligible impact on CNP humpback whales (75 FR 29984, May 28, 2010). 
For these reasons, the proposed FKWTRP also does not address incidental 
M&SI of humpback whales.

Goals of the FKWTRP

    The Hawaii Pelagic stock is the only stock of false killer whales 
in the Pacific Islands Region for which M&SI incidental to the Hawaii-
based longline fisheries is known to exceed the stock's PBR level, as 
of the final 2010 SAR (Carretta et al., 2011). The short-term goal of 
the proposed FKWTRP is to reduce, within six months of its 
implementation, M&SI of the Hawaii Pelagic stock of false killer whales 
incidental to the Hawaii-based longline fisheries occurring within the 
U.S. Exclusive Economic Zone (EEZ) around the Hawaiian Islands to less 
than the stock's PBR level of 2.5 false killer whales per year 
(Carretta et al., 2011).
    The Hawaii Pelagic stock is a transboundary stock that inhabits 
waters both within and outside of the 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 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 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 reduce the 
uncertainties regarding impacts of false killer whale incidental takes 
on the high seas, but these uncertainties do not affect the Hawaii 
Pelagic false killer whale stock's designation as strategic. 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 EEZ to the high seas, NMFS is requiring 
that incidental M&SI of the high seas component of the Hawaii Pelagic 
stock not increase above current levels (i.e., 5.3 false killer whales 
per year, as of the 2010 SAR, Carretta et al., 2011).
    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, 
Hawaii Insular, and Palmyra Atoll stocks of false killer whales to 
insignificant levels (i.e., less than 10 percent of their respective 
PBR levels).

History of the FKWTRT

    NMFS established the FKWTRT on January 19, 2010 (75 FR 2853), and 
selected team members according to guidance provided in MMPA section 
118(f)(6)(C). NMFS strove to select an experienced and committed team 
with a balanced representation of stakeholders. Members of the FKWTRT 
included representatives of the Hawaii-based deep-set and shallow-set 
longline fisheries, conservation organizations, scientific and research 
organizations, the State of Hawaii, the Marine Mammal Commission, the 
Western Pacific Fishery Management Council, and NMFS.
    Four professionally-facilitated meetings were held between February 
2010 and July 2010. During these meetings, NMFS presented false killer 
whale abundance and incidental M&SI estimates, characterization and 
regulatory structure of the Hawaii-based longline fisheries, and 
analysis of observer, logbook, and other fisheries data. In addition, 
NMFS, in consultation with the FKWTRT, performed and presented analyses 
of observer data to identify variables that may be predictors of 
depredation by cetaceans or bycatch of false killer whales. NMFS also 
developed a model to perform predictive simulations to evaluate 
potential mitigation strategies. Each meeting included facilitated 
discussions to examine the findings of the analyses, and to develop and 
draft various components of a Draft FKWTRP, with an emphasis on 
management and research recommendations.
    The FKWTRT reached consensus at the July 2010 meeting, and on July 
19, 2010, submitted to NMFS a Draft FKWTRP including recommendations 
for regulatory bycatch reduction measures, as well as research needs 
and other non-regulatory measures (FKWTRT, 2010). The team's consensus 
recommendations formed the basis of this proposed FKWTRP.

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 a total of six stranding records from 
Hawaiian waters (Nitta, 1991; Maldini, 2005). One on-effort sighting of 
false killer whales was made during a NMFS 2002 shipboard survey of 
waters within the EEZ around Hawaii (Barlow, 2006). Smaller-scale 
surveys conducted around the Main Hawaiian Islands (MHI) show that 
false killer whales are also encountered in nearshore waters (Baird et 
al., 2008; Mobley et al., 2000). This species also occurs in the EEZ 
around Palmyra Atoll, Johnston Atoll, and American Samoa (Barlow and 
Rankin, 2007; Carretta et al., 2011).
    Genetic analyses of tissue samples collected within the Indo-
Pacific indicate restricted gene flow between false killer whales 
sampled near the MHI and false killer whales sampled in all other 
regions (Chivers et al., 2007; 2010). The recent update from Chivers et 
al. (2010) included additional samples and analysis of eight nuclear 
DNA (nDNA) microsatellites, revealing strong phylogenetic patterns that 
are consistent with local evolution of

[[Page 42085]]

haplotypes that are nearly unique to the separate insular population 
around the MHI. Further, the recent analysis also revealed significant 
differentiation, both in mitochondrial and nDNA, between pelagic false 
killer whales in the Eastern North Pacific (ENP) and Central North 
Pacific (CNP) strata defined in Chivers et al. (2010), though the 
sample distribution to the east and west of Hawaii is insufficient to 
determine whether the sampled strata represent one or more stocks, and 
where stock boundaries would be. Since 2003, NMFS observers have been 
collecting tissue samples of bycaught cetaceans in the Hawaii-based 
longline fisheries for genetic analysis whenever possible. Between 2003 
and 2010, eight false killer whale samples (four collected outside the 
EEZ around Hawaii and four collected within the EEZ but more than 100 
nautical miles (nm) (185 km) from the MHI) were determined to have 
Pacific pelagic haplotypes (Chivers et al., 2010).
    Recent satellite telemetry studies, boat-based surveys, and photo-
identification analyses of false killer whales around Hawaii have 
demonstrated that the insular and pelagic stocks have overlapping 
ranges, rather than a clear separation in distribution. Hawaii Insular 
false killer whales have been documented as far as 112 km (60 nm) from 
the MHI, and Hawaii Pelagic stock animals have been documented as close 
as 42 km (23 nm) to the islands (Baird et al., 2008; Baird, 2009; Baird 
et al., 2010; Forney et al., 2010). Based on a review of new 
information (Forney et al., 2010), the 2010 SAR recognizes a new, 
overlapping distribution for Hawaii Insular and Hawaii Pelagic stocks 
of false killer whales around Hawaii: Unless stock identity can be 
confirmed through other evidence (e.g., genetic data), animals within 
40 km (22 nm) of the MHI are considered part of the Hawaii Insular 
stock; animals beyond 140 km (76 nm) of the MHI are considered part of 
the Hawaii Pelagic stock, and the two stocks overlap between 40 km (22 
nm) and 140 km (76 nm) from shore (Carretta et al., 2011).
    The 2010 SAR also clarifies that the Hawaii Pelagic stock includes 
animals found both within the EEZ around Hawaii and in adjacent high 
seas; however, because data on false killer whale abundance, 
distribution, and human-caused impacts are largely lacking for the high 
seas, the status of this stock is evaluated based on data from the EEZ 
around Hawaii (Carretta et al., 2011; NMFS, 2005a). The Palmyra Atoll 
stock of false killer whales remains a separate stock, because 
comparisons amongst false killer whales sampled at Palmyra Atoll and 
those sampled from the Hawaii Insular stock and the pelagic ENP 
revealed restricted gene flow, although the sample size remains low for 
robust comparisons (Chivers et al., 2007; 2010). NMFS will continue to 
obtain and analyze additional tissue samples for genetic studies of 
stock structure, and will evaluate new information on stock ranges as 
it becomes available.
    In the 2010 SAR, there are four 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 Hawaii Pelagic stock, which 
includes false killer whales inhabiting waters greater than 40 km (22 
nm) from the MHI; (3) the Palmyra Atoll stock, which includes false 
killer whales found within the EEZ around Palmyra Atoll; and (4) the 
American Samoa stock, which includes false killer whales found within 
the EEZ around American Samoa (Carretta et al., 2011). The American 
Samoa stock was not included in the scope of the FKWTRT's discussions, 
and is not described further in this proposed FKWTRP.

Abundance Estimates and Potential Biological Removal Levels

Hawaii Insular Stock of False Killer Whales

    A mark-recapture study of photo-identification data obtained during 
2000-2004 around the MHI produced an estimate of 123 Hawaii Insular 
false killer whales (coefficient of variation, or CV = 0.72; the CV is 
a measurement of the variation in the data, and is calculated as the 
ratio of the standard deviation to the mean) (Carretta et al., 2011; 
Baird et al., 2005). The minimum population estimate for the Hawaii 
Insular stock of false killer whales is the number of distinct 
individuals identified in this population during the 2002-2004 photo-
identification studies, that is, 76 individual whales (Baird et al., 
2005). This is similar to the log-normal 20th percentile of the mark-
recapture abundance estimate, 71 false killer whales. A recent study 
(Baird, 2009) summarized information on false killer whale sightings 
near Hawaii between 1989 and 2007, based on various survey methods, and 
provided evidence that the Hawaii Insular stock of false killer whales 
may have declined during the last two decades. Evidence of a decline is 
also supported by a recent genetic study that indicates there has been 
a decline in the effective population size (Chivers et al., 2010). No 
data are available on current or maximum net productivity rate for this 
stock.
    PBR is defined 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 (76) times one 
half the default maximum net growth rate for cetaceans (one half of 4 
percent) times a recovery factor of 0.40 (for a stock of unknown status 
with a human-caused M&SI rate CV > 0.80; see Wade and Angliss, 1997), 
resulting in a PBR of 0.61 false killer whales per year, as of the 2010 
SAR (Carretta et al., 2011).
    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). A final listing decision is expected by 
November 2011.

HI Pelagic Stock of False Killer Whales

    Analyses of a NMFS 2002 shipboard line-transect survey of the EEZ 
around Hawaii (Hawaiian Islands Cetacean and Ecosystem Assessment 
Survey, or HICEAS) resulted in an abundance estimate of 236 (CV = 1.13) 
false killer whales (Barlow 2006) outside of 75 nm (139 km) of the MHI. 
A recent re-analysis of the HICEAS data using improved methods and 
incorporating additional sighting information obtained on line-transect 
surveys south of the EEZ around Hawaii during 2005, resulted in a 
revised estimate of 484 (CV = 0.93) false killer whales within the EEZ 
around Hawaii outside of about 75 nm (139 km) of the MHI (Barlow and 
Rankin, 2007). This is the best available abundance estimate for the 
Hawaii Pelagic stock of false killer whales. The 2005 survey (Barlow 
and Rankin, 2007) also resulted in a separate abundance estimate of 906 
(CV = 0.68) false killer whales in international waters south of the 
EEZ around Hawaii and within the 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 2002 abundance 
estimate for the EEZ around Hawaii outside of 75 nm (139 km) from the 
MHI (Barlow and Rankin, 2007) is 249 false killer whales. 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

[[Page 42086]]

calculated only within the 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 in the high seas where this stock may also 
occur. The PBR level for the Hawaii Pelagic stock of false killer whale 
is thus calculated as the minimum population size within the EEZ around 
Hawaii (249) times one half the default maximum net growth rate for 
cetaceans (one half of 4 percent) times a recovery factor of 0.50 (for 
a stock of unknown status with a M&SI rate in the EEZ around Hawaii CV 
<= 0.30; Wade and Angliss, 1997), resulting in a PBR of 2.5 false 
killer whales per year, as of the 2010 SAR (Carretta et al., 2011).

Palmyra Atoll Stock of False Killer Whales

    Recent line transect surveys in the EEZ around Palmyra Atoll 
produced an estimate of 1,329 (CV = 0.65) false killer whales (Barlow 
and Rankin, 2007). This is the best available abundance estimate for 
false killer whales within the EEZ around Palmyra Atoll. The log-normal 
20th percentile of the 2002 abundance estimate for the EEZ around 
Palmyra Atoll (Barlow and Rankin, 2007) is 806 false killer whales. No 
data are available on current population trend or on current or maximum 
net productivity rate for this stock.
    The PBR level for the Palmyra Atoll false killer whale stock is 
calculated as the minimum population size (806) times one half the 
default maximum net growth rate for cetaceans (one half of 4 percent) 
times a recovery factor of 0.40 (for a stock of unknown status with a 
M&SI rate CV > 0.80; Wade and Angliss, 1997), resulting in a PBR of 6.4 
false killer whales per year, as of the 2010 SAR (Carretta et al., 
2011).

Mortality and Serious Injury Estimates

    The total incidental M&SI of cetaceans in the shallow-set longline 
fishery (with 100 percent observer coverage) and the estimated annual 
and 5-year average incidental M&SI of cetaceans in the deep-set 
longline fishery are reported by McCracken and Forney (2010). Their 
methodology includes prorating all estimated incidental takes of false 
killer whales based on the proportions of observed interactions that 
resulted in death or serious injury (89 percent), or non-serious injury 
(11 percent). Further, incidental takes of false killer whales of 
unknown stock origin within the Hawaii Insular/Pelagic stock overlap 
zone are prorated based on the density of each stock in that area, as 
recommended in the NMFS GAMMS (NMFS, 2005a) and by the Pacific 
Scientific Review Group. No genetic samples are available to establish 
stock identity for these incidental takes, but both stocks are 
considered by NMFS to be at risk of interacting with longline gear 
within this region. Until methods of determining stock identity for 
animals observed incidentally taken within the overlap zone are 
available (e.g., photos, tissue samples), this proration approach 
produces the best available method for accounting for potential impacts 
to both stocks.
    Based on these bycatch analyses, estimates of annual and 5-year 
average annual incidental M&SI of false killer whales, by stock and EEZ 
area, are presented in the 2010 SAR (Carretta et al., 2011). Using data 
from 2004-2008, the mean estimated annual incidental M&SI of false 
killer whales in the Hawaii Pelagic stock occurring outside of the EEZ 
was 5.3 (CV = 0.5) and inside the EEZ around Hawaii was 7.3 (CV = 0.3). 
The mean estimated annual incidental M&SI of false killer whales in the 
Hawaii Insular stock was 0.60 (CV = 1.3) and 0.3 (CV = 1.3) for the 
Palmyra Atoll stock (Carretta et al., 2011). These estimates of 
incidental M&SI do not include any unidentified animals (8 observed 
animals) that may have been false killer whales, and, therefore, are 
minimum estimates. Efforts are currently underway to develop methods of 
prorating the unidentified animals by species and stock, taking into 
account geographic differences in their ranges and observed rates of 
documented interactions with each species; these estimates will likely 
be included in the draft 2011 SAR.

Components of the Proposed FKWTRP

    The proposed FKWTRP includes both regulatory and non-regulatory 
measures, as well as a suite of research recommendations. While the 
primary focus of the proposed FKWTRP involves the Hawaii-based deep-set 
longline fishery, there are measures that apply to other fisheries 
known or suspected to interact with false killer whales.
    NMFS believes the suite of proposed 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 FKWTRT 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 proposes to incorporate nearly all of the FKWTRT's consensus 
recommendations included in the Draft FKWTRP into the proposed FKWTRP, 
with some modifications. Changes from the FKWTRT's consensus 
recommendations are noted, along with the rationale for any proposed 
changes. The FKWTRT also discussed other mitigation and conservation 
measures that they did not include in their consensus recommendations 
because they were either economically or technologically infeasible, or 
did not meet the goals of the MMPA. Information on these can be 
reviewed in the Draft FKWTRP (FKWTRT, 2010).
    One of the FKWTRT's consensus recommendations will not be 
implemented through this proposed rule. Specifically, the FKWTRT 
recommended that NMFS require longline vessel crew to notify the 
captain in the event of a marine mammal interaction. NMFS agrees that 
crewmembers should immediately notify the captain in the event of a 
marine mammal hooking or entanglement, and accordingly NMFS is 
proposing to require that a standard placard be posted on longline 
vessels instructing this response (see ``(6) Requirement for Captains' 
Supervision of Marine Mammal Interactions'' and ``(7) Captain 
Notification Placard Posting Requirement'' below). However, since the 
captain is ultimately responsible for the crew's response, handling, 
and release of the marine mammal, NMFS believes that the captain should 
be directly responsible for ensuring that an effective marine mammal 
notification procedure is implemented onboard the vessel.

Proposed Regulatory Measures

    NMFS proposes the following regulatory measures:
    (1) Require the use of ``weak'' circle hooks sized 16/0 or smaller 
with a maximum wire diameter of 4.0 mm (0.157 in) and other specific 
characteristics in the Hawaii-based deep-set longline fishery;
    (2) Establish a minimum 2.0 mm (0.079 in) diameter for monofilament 
leaders and branchlines in the Hawaii-based deep-set longline fishery, 
and a minimum breaking strength of 400 pounds (181 kg) for leaders and 
branchlines if any other material is used;

[[Page 42087]]

    (3) Modify the existing Main Hawaiian Islands Longline Prohibited 
Area as described in 50 CFR 665.806 to eliminate the seasonal 
contraction of the boundary; the 71,384 km\2\ (20,812 nmi\2\) area 
north of the MHI that is currently open to longline fishing between 
October-January would be closed to longline fishing year-round;
    (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 that would 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 EEZ around Hawaii.
    These proposed measures are more fully described below.

(1) ``Weak'' Circle Hook Requirement

    Analysis of observer data and predictive simulations indicate that 
the use of small circle hooks (size 16/0 or smaller) 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 (e.g., mouth hookings 
rather than ingestion) following interactions (FKWTRT, 2010). Small 
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 (i.e., straighten the 
hook) if tension is placed on the line. Thus, the required use of small 
circle hooks may further reduce the number of incidental M&SI of false 
killer whales in the deep-set longline fishery.
    The standard wire diameter for small circle hooks in the deep-set 
longline fishery is 4.5 mm [0.177 in]. The FKWTRT believes that small 
circle hooks with a smaller wire diameter (e.g., 4.0 mm [0.157 in] or 
4.2 mm [0.165 in]) would provide even greater conservation benefits to 
false killer whales. Such ``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, it would be expected that the hook would 
be strong enough to retain target catch, but would bend and straighten 
under the pull strain of a hooked marine mammal, allowing the animal to 
release itself and thereby reduce the severity of the animal's injury. 
However, these weaker hooks are not currently used in the fishery, and 
their effects on rates of target catch, and therefore their commercial 
viability, have not been tested. Consequently, the FKWTRT recommended 
that weak hooks be required in the deep-set longline fishery if it 
could be demonstrated through additional research that weak hooks do 
not have a substantial negative impact on bigeye tuna catch rates 
(i.e., the aggregate weight of bigeye tuna caught on 4.0 mm [0.157 in] 
or 4.2 mm [0.165 in] circle hooks is not more than 10 percent less than 
the weight of bigeye tuna caught on 4.5 mm [0.177 in] circle hooks). 
The rate of false killer whale bycatch is so low that a very large 
sample size (number of hooks) would be required to detect a difference 
in bycatch between hooks. However, the FKWTRT recommended the required 
use of weak circle hooks based on the effects to target species alone, 
given the expected, though unverified, reduction in the severity of 
injuries to hooked false killer whales.
    NMFS, in partnership and collaboration with the Hawaii-based deep-
set longline fishery and independent researchers, conducted a study to 
quantify the effects of strong (4.5 mm [0.177 in] wire diameter) and 
weak (4.0 mm [0.157 in] wire diameter) 15/0 circle hooks on bigeye tuna 
catch. The study examined catch rates of target, incidental (retained 
non-target), and bycatch (discarded) species; size selectivity; and 
frequency of straightened hooks. Analysis of data from 127 longline 
sets conducted between October-December 2010 showed no significant 
differences in catch per set between hook types for 20 species, 
including bigeye tuna. There were also no significant differences in 
bigeye tuna catch per set in either the number of individuals or weight 
estimated from fork lengths (Bigelow et al., 2011). Weak hooks had a 
statistically significant higher rate of straightening, though the rate 
of straightening was relatively low (0.462 per 1,000 weak hooks, and 
0.291 with no catch), and lower than studies of weak hooks in other 
fisheries (Bigelow et al., 2011).
    The researchers note that the study was conducted during a time of 
year when landed bigeye tuna have a lower mean weight, and it is 
unknown whether similar results would have been obtained if the 
research were conducted when bigeye tuna of a larger average size were 
available to the fishery. However, the study shows that weak hooks can 
retain even very large bigeye tuna (~122 kg [269 lb], Bigelow et al., 
2011). Based on the results of this study showing no statistically 
significant reduction in target species catch rates, and given the 
expected positive reduction in the severity of injuries to marine 
mammals, as recommended by the FKWTRT, NMFS is proposing the required 
use of weak circle hooks.
    The FKWTRT recommended, and NMFS proposes, the required use of 
circle hooks sized 16/0 or less in the deep-set longline fishery, with 
the following characteristics: wire diameter not to exceed 4.0 mm 
(0.157 in); the shank composed of round, non-flattened wire; and 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 proposed new regulation would be added to 50 CFR 665.813, 
under a revised section heading of ``Western Pacific longline fishing 
requirements.'' NMFS also proposes to specifically cross-reference this 
gear requirement in the take reduction plan regulations under 50 CFR 
part 229.

(2) Minimum Monofilament Diameter Requirement for Leaders/Branchlines

    An examination of observer data from false killer whale and 
``blackfish'' (animals identified as either false killer whales or 
pilot whales) interactions indicated that approximately 10 percent (3 
of 29) of animals that were entangled or hooked externally or in the 
mouth were released because the mainline or branchline broke (FKWTRT, 
2010). Animals that are released with substantial trailing gear (with 
the potential to wrap around pectoral fins/flippers, peduncle, or head; 
be ingested; or accumulate drag) are usually considered seriously 
injured (Andersen et al., 2008). The FKWTRT believed that, had the line 
not broken in these cases, the animals might have been able to pull 
free (i.e., straighten the hook), or attempts could have been made by 
the

[[Page 42088]]

captain, crew, or observer to disentangle or dehook the animals. As 
such, the FKWTRT recommended a minimum breaking strength for 
branchlines, via a minimum diameter requirement.
    For the deep-set longline fishery, the FKWTRT recommended, and NMFS 
proposes, that any monofilament line used in branchlines or leaders 
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 branchlines or leaders must have 
a breaking strength of 400 pounds (181 kg) or greater. The intent is 
that the gear be assembled and maintained such that the hook is the 
weakest component of the terminal tackle.
    This proposed new regulation would be added to 50 CFR 665.813, 
under a revised section heading of ``Western Pacific longline fishing 
requirements.'' NMFS also proposes to specifically cross-reference this 
gear requirement in the take reduction plan regulations under 50 CFR 
part 229.

(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(c)). The outer extent of the 
boundary contracts 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\). 
Incidental M&SI of false killer whales and blackfish have been 
documented in the area where longline fishing is only allowed between 
October and January. This area falls within the area of overlap between 
the Hawaii Insular and Hawaii Pelagic stocks of false killer whales as 
defined in the 2010 SAR (Carretta et al., 2011). Given that longline 
fishing in this area may impact both false killer whale stocks, the 
FKWTRT recommended that this area be closed to commercial longline 
fishing year-round. Such an exclusion would, in effect, maintain the 
current boundary of the February-September longline exclusion zone 
prohibitions throughout the entire year. It is anticipated that this 
closure would substantially reduce the risk the deep- and shallow-set 
longline fisheries pose to the Hawaii Insular stock of false killer 
whales, because longline fishing would thereby be prohibited from 
nearly the entire range of the Hawaii Insular stock. It would also 
likely reduce incidental M&SI of the Hawaii Pelagic stock of false 
killer whales in that area.
    NMFS is proposing to implement this recommendation by revising the 
boundaries of the existing MHI longline fishing prohibited area at 50 
CFR 665.806(c) to eliminate the seasonal contraction (Figure 1). NMFS 
also proposes to prohibit commercial longline fishing in this Main 
Hawaiian Islands Longline Fishing Prohibited Area in the take reduction 
plan regulations under 50 CFR part 229.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP18JY11.000

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(4) Required Annual Certification in Marine Mammal Interaction 
Mitigation

    The FKWTRT 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 FKWTRT 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 FKWTRT recommended NMFS 
expand the existing Protected Species Workshops, required under 50 CFR 
665.814, to incorporate additional information regarding marine mammal 
interactions, including an MMPA regulatory overview; species 
identification; marine mammal handling and release techniques; and best 
practices for reducing marine mammal bycatch. The FKWTRT also 
recommended that NMFS develop a voluntary component of the training on 
marine mammal photo-identification techniques for owners and operators 
interested in participating in the research.
    NMFS is proposing to implement the FKWTRT's recommendation. Under 
existing regulations for Western Pacific pelagic fisheries (50 CFR 
665.814, 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 of, 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 proposes to expand the 
content of the workshops in consultation with the FKWTRT, as 
appropriate, to meet the needs of the FKWTRP. To ensure the marine 
mammal component is maintained by regulation as part of the workshops, 
NMFS is also proposing to add 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 FKWTRT recommended, and NMFS proposes, to require posting a 
NMFS-approved marine mammal handling and release informational placard 
onboard all longline vessels in the Hawaii-based fleet in a location 
where it would be visible to the captain and crew. NMFS believes this 
proposed action would facilitate the careful handling and release of 
false killer whales and other small cetaceans caught incidentally 
during longline fishing. The posting requirement would ensure NMFS' 
guidelines are readily available for reference during a hooking or 
entanglement event. This proposed requirement would be part of 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 proposes to expand 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 FKWTRT 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 bycatch events. 
The FKWTRT recommended, and NMFS proposes, to require the captain of 
each longline vessel to supervise the handling and release of any 
hooked or entangled marine mammal. The captain would not necessarily 
need to be on deck, but could, for example, oversee and direct specific 
actions from the wheelhouse, if he or she were in visual and/or verbal 
contact with the crew. This proposed requirement would be part of the 
take reduction plan regulations at 50 CFR part 229.

(7) Captain Notification Placard Posting Requirement

    The FKWTRT recommended, and NMFS proposes, to require a NMFS-
approved placard, that instructs the vessel crew to notify the captain 
immediately if a marine mammal is hooked or entangled, be posted 
onboard all active longline vessels in a location where it would be 
visible to the crew. It is expected that this measure would 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 proposed requirement 
would be part of the take reduction plan regulations at 50 CFR part 
229.

(8) Southern Exclusion Zone Closure

    The FKWTRT recommended and NMFS proposes to establish a ``Southern 
Exclusion Zone'' (SEZ) that would 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 
EEZ around Hawaii. Using observed incidental M&SI would allow for real-
time management of the SEZ to prevent incidental M&SI from exceeding 
PBR, rather than waiting until the end of the year for extrapolated 
M&SI estimates, by which time PBR might be exceeded. The SEZ would be 
bounded on the east at 154.5[deg] W. longitude, on the west at 165[deg] 
W. longitude, on the north by the existing February-September MHI 
Longline Exclusion Zone and the Papahanaumokuakea Marine National 
Monument; and on the south by the EEZ boundary (Figure 1). The SEZ 
closure would cover 386,122 km\2\ (112,575 nmi\2\), that if 
implemented, would reduce the area available to longline fishing within 
the EEZ around Hawaii by approximately 17 percent.
    The FKWTRT recommended these boundaries because they encompass an 
area with a high historical concentration of observed false killer 
whale and blackfish incidental takes in the deep-set longline fishery. 
As such, the FKWTRT and NMFS determined that this is an area where 
protective measures (i.e., a closure) would be likely to have the 
greatest conservation benefit. A closure would prevent further false 
killer whale M&SI in the deep-set longline fishery in that area. The 
FKWTRT and NMFS also believe that, to be effective, the proposed 
closure must be sufficiently large to prevent false killer whales from 
simply following boats and gear to areas outside of the closure. NMFS 
believes the closure of the SEZ, when triggered by specific levels of 
observed false killer whale M&SI, would be necessary and appropriate to 
eliminate future interactions in the area and to reduce the overall 
level of false killer whale interactions in the deep-set longline 
fishery.

[[Page 42091]]

    The FKWTRT recommended that the SEZ be managed on the basis of 
``Plan Years,'' rather than calendar years. A ``Plan Year'' would be 
the 365-day period starting the first day of the month immediately 
following 30-days after publication of the final FKWTRP in the Federal 
Register. The FKWTRT believed this would allow for the more immediate 
implementation of the management measures, instead of delaying 
implementation until the beginning of the calendar year following 
publication of the final FKWTRP in the Federal Register. Instead, NMFS 
proposes to base the cycle on the fishing year, which is currently 
defined to be the same as the calendar year (50 CFR 665.12). Management 
of the SEZ using fishing years would mean there was a single definition 
of the annual cycle, rather than the multiple, non-synchronous cycles 
if ``Plan Years'' were used. The single annual cycle would facilitate 
understanding within the regulated community and provide for efficient 
administration of the measures. Additionally, managing on the basis of 
fishing years would not result in a delay in implementation of take 
reduction measures: NMFS proposes that observed incidental M&SI would 
be counted toward the trigger immediately upon the effective date of 
the final FKWTRP. If that date does not coincide with the beginning of 
the fishing year, observed incidental M&SI would be counted against the 
trigger from that point forward for the remaining portion of the first 
fishing year. Any incidental M&SI in the first year that was observed 
before the effective date of the final FKWTRP would not be counted 
retroactively against the trigger.
    For example, if the final rule becomes effective on May 15, 2012, 
all false killer whale incidental M&SI that are observed from that 
point forward until December 31, 2012 would count toward the trigger. 
However, in that example, any false killer whale mortalities or serious 
injuries that occurred in that calendar year before May 15 (i.e., from 
January 1-May 14, 2012) would not be counted toward the trigger for 
2012. The tally of M&SI would be ``re-set'' on January 1, 2013, and any 
observed takes from January 1-December 31, 2013 would count toward the 
trigger in 2013.
    The proposed SEZ measures would apply only to the deep-set longline 
fishery, and not the shallow-set longline fishery, because of the deep-
set longline fishery's much higher rate of false killer whale 
mortalities and serious injuries. Additionally, the shallow-set 
longline fishery operates largely outside of the EEZ around Hawaii, and 
thus has an even lower likelihood of interacting with a false killer 
whale within the EEZ. Therefore, mortalities and serious injuries of 
false killer whales in the shallow-set longline fishery would not count 
toward the SEZ trigger, and the fishery would not be affected by any 
closure of the SEZ. However, mortalities and serious injuries of false 
killer whales in the shallow-set longline fishery would still be 
included in NMFS estimates and would be presented in the SAR.
    The following paragraphs describe five proposed steps NMFS would 
take when determining whether to prohibit deep-set longline fishing in 
the SEZ. Although the proposed SEZ management measures are largely 
consistent with the Draft FKWTRP, there are several instances where 
diversions from the FKWTRT's recommendations were necessary. Those 
instances are specifically noted and explained.
    (a) Defining the trigger. The SEZ would be managed in real-time 
based on observed incidental M&SI of false killer whales, so that false 
killer whale incidental M&SI in the deep-set longline fishery inside 
the EEZ around Hawaii does not exceed the Hawaii Pelagic stock's PBR 
level. Therefore, the FWKTRT recommended that the real-time, estimated 
incidental M&SI be calculated using a simple extrapolation from the 
observed number of false killer whale incidental M&SI, using the level 
of observer coverage for that year. Because of inter-annual variability 
in incidental M&SI, NMFS typically calculates 5-year average annual 
incidental M&SI levels for comparing against PBR, rather than relying 
on single-year estimates. Therefore, NMFS proposes to convert this 
extrapolated estimate of incidental M&SI to a 5-year average for 
comparison against PBR. This is consistent with the FKWTRT's 
deliberations. For example, at the current level of 20 percent observer 
coverage, two observed mortalities or serious injuries of false killer 
whales inside the EEZ around Hawaii would result in an estimate of 10 
false killer whales for that year, which exceeds the stock's current 
PBR level of 2.5. But, if no other false killer whales were taken in 
the following 4 years, a 5-year average incidental M&SI would be 
approximately 2 animals per year, which is below the stock's PBR level. 
Any additional observed mortalities or serious injuries would cause the 
estimated incidental M&SI level to exceed the stock's PBR level, thus 
indicating the existing management measures in the FKWTRP were not 
sufficiently reducing incidental M&SI and additional management 
measures (i.e., a closure of the SEZ) would be necessary. Thus, under 
this scenario where PBR was 2.5 and observer coverage was 20 percent, 
the trigger would be set at 2 observed false killer whale mortalities 
or serious injuries.
    The two factors on which the trigger is based--observer coverage 
and the PBR for the Hawaii Pelagic stock of false killer whales--may 
change from one year to the next. NMFS proposes to specify the equation 
used to calculate the trigger in the FKWTRP regulations and to publish 
a notice in the Federal Register upon initial FKWTRP implementation and 
whenever the trigger was changed, specifying the levels of PBR and 
observer coverage used to calculate the trigger.
    NMFS proposes to calculate the trigger for implementing additional 
required management measures using the following equation:

trigger <= 5 * (observer coverage) * (PBR)

    The following process described how this equation would be used for 
calculating the trigger for closing the SEZ:
    (i) Divide the (unknown) trigger (i.e., the number of observed 
animals that are determined to have been killed or seriously injured) 
by the level of observer coverage to obtain the extrapolated annual 
estimate of incidental M&SI: (trigger)/(observer coverage) = annual 
incidental M&SI estimate;
    (ii) Assuming there would be no additional incidental M&SI in the 
following four years, divide the estimate from step (i) by 5 to obtain 
the 5-year average annual incidental M&SI level: [(trigger)/(observer 
coverage)]/5 = 5-year average incidental M&SI estimate;
    (iii) Set the 5-year average annual incidental M&SI estimate from 
step (ii) to less than or equal to PBR: [(trigger)/(observer 
coverage)]/5 <= PBR;
    (iv) Solve for the trigger: Trigger <= 5 * (observer coverage) * 
(PBR); and
    (v) Round the trigger down to the nearest whole number, because the 
trigger is based on numbers of observed (whole) animals that are 
determined to have been killed or seriously injured.
    For example, if PBR were 2.5 and observer coverage were 25 percent, 
the trigger would be set at 3, that is (5 * (0.25) * (2.5) = 3.125, 
rounded down to nearest whole number). If the trigger were zero, NMFS 
would close the SEZ at the beginning of the fishing year without 
waiting for a single observed false killer whale mortality or serious 
injury.
    These figures would not represent the official bycatch estimates 
for false killer

[[Page 42092]]

whales in the fishery; the official bycatch estimates are calculated by 
separate methods and are presented in the annual SARs. For example, the 
official bycatch estimates include prorated incidental takes of false 
killer whales of unknown stock origin within the Hawaii insular/pelagic 
stock overlap zone, and prorated incidental takes based on the 
proportions of observed interactions that resulted in death, serious 
injury, or non-serious injury. Additionally, the estimates used in 
calculating the trigger would be necessarily less accurate and precise 
than the official estimates because they would calculated in real-time 
as false killer whales were observed incidentally taken by the fishery 
throughout the year, without the benefit of the entire year's data.
    The proposed trigger would apply only to the Hawaii Pelagic stock 
of false killer whales given the stock's strategic status, the stated 
short-term goal of the proposed FKWTRP, and the location of the 
proposed closure. For the purposes of identifying the SEZ trigger and 
implementing contingency measures, any false killer whale incidentally 
taken inside the EEZ around Hawaii would be assumed to be part of the 
Hawaii Pelagic stock, unless the animal could be positively identified 
as belonging to the Insular stock through photo-identification or 
genetic analysis of a tissue sample. Additionally, only observed 
serious injuries or mortalities would be counted when determining 
whether the trigger was met; injuries determined to be non-serious 
would not count toward the trigger. Therefore, a determination would 
need to be made before incidental M&SI could be calculated. Under 
current protocol, on-board observers collect data on marine mammal 
interactions. NMFS PIROP staff debrief the observers and ensure the 
data are, in fact, accurate. NMFS scientists then evaluate each 
interaction by comparing the data against objective criteria to 
determine whether the injury is serious. Finally, NMFS Pacific Islands 
and Southwest Fisheries Science Centers and the Pacific Scientific 
Review Group review the scientists' determination before NMFS makes a 
final injury determination (i.e., non-serious or serious). The FKWTRT 
recommended that NMFS expedite the process of making serious injury 
determinations for these animals, to allow for the timely 
implementation of specified contingency measures (see ``(3) Expedite 
False Killer Whale Serious Injury Determinations'' under ``Proposed 
Non-Regulatory Measures'' below).
    (b) Observed incidental M&SI below the trigger. For each mortality 
or serious injury in the deep-set longline fishery inside the EEZ 
around Hawaii that is below the established trigger in a given fishing 
year, NMFS would notify the FKWTRT, and for the last mortality or 
serious injury before the trigger is met, NMFS would convene the FKWTRT 
by teleconference to discuss the circumstances of the event. For 
example, if the trigger is set at 4 observed false killer whales, NMFS 
would notify the FKWTRT of the first and second mortalities or serious 
injuries, and would convene the FKWTRT by teleconference after the 
third observed mortality or serious injury. This process is a slight 
modification from the FKWTRT's recommendations; the FKWTRT only 
explicitly considered the case of a trigger of 2, and thus did not make 
specific recommendations regarding NMFS' actions for observed 
incidental M&SI other than the single mortality or serious injury just 
before the trigger would be met. However, NMFS believes this proposed 
process meets the FKWTRT's intent regarding notification and discussion 
of observed false killer whale incidental M&SI.
    (c) Observed mortality or serious injury that meets the trigger. 
The FKWTRT recommended, and NMFS proposes, that if there is an observed 
false killer whale mortality or serious injury in the deep-set longline 
fishery inside the EEZ around Hawaii that meets the established trigger 
for a given year, NMFS would close the SEZ until the end of that year, 
and then convene the FKWTRT for an in-person meeting. As described 
above, NMFS would first need to confirm that the animal was a false 
killer whale and determine that the animal was seriously injured or 
killed, before NMFS closed the SEZ. For example, if the trigger is set 
at 4 observed false killer whales, following the fourth observed false 
killer whale mortality or serious injury, NMFS would close the SEZ to 
deep-set longline fishing until the end of the year and would convene 
the FKWTRT for an in-person meeting. NMFS would reopen the SEZ at the 
beginning of the next year. The availability of funding may limit NMFS' 
ability to convene the FKWTRT for an in-person meeting. Regardless of 
whether NMFS has convened an in-person FKWTRT meeting, NMFS would 
reopen the SEZ at the beginning of the next year.
    If a closure of the proposed SEZ is triggered, NMFS would notify 
the fishery and close the area for the specified time period (the rest 
of the year) through a Federal Register notice. The notice would 
include the specifics of the closure, as well as when and how the SEZ 
would be reopened.
    Additional mortalities or serious injuries of false killer whales 
in the deep-set longline fishery in the 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 EEZ around Hawaii, then NMFS would again 
convene the FKWTRT to discuss the circumstances of the event and 
consider the effectiveness of the SEZ closure. The FKWTRT may be 
convened by teleconference or other efficient means.
    (d) Observed incidental mortality or serious injury in consecutive 
year(s). If the SEZ is closed in a given year, and there is one 
observed false killer whale mortality or serious injury in the deep-set 
longline fishery inside the EEZ around Hawaii in any of the next four 
consecutive years, NMFS proposes to convene the FKWTRT for an in-person 
meeting, and close the SEZ to deep-set longline fishing until reopened 
by NMFS after consultation with the FKWTRT.
    This proposed measure differs from the FKWTRT's recommendation. The 
FKWTRT recommended that if NMFS closed the SEZ in a given year upon 
meeting the established trigger (and reopened the SEZ at the beginning 
of the next year), NMFS would again close the SEZ in the next 
consecutive year only if the same trigger was met. NMFS believes the 
FKWTRT's recommendation for this step is incompatible with the 
statutory requirement to bring incidental M&SI below PBR within six 
months of plan implementation, and to insignificant levels within 5 
years. For example, at the current level of 20 percent observer 
coverage and PBR level of 2.5, the trigger would be set at 2. If there 
were two observed mortalities or serious injuries of false killer 
whales inside the EEZ around Hawaii, this would result in an estimated 
10 false killer whale mortalities or serious injuries for that year. 
If, as per the FKWTRT's recommendation, the same trigger (2) was met in 
the next year, this would also result in an estimate of 10 false killer 
whales for that year, for a total of 20 false killer whale mortalities 
or serious injuries in two years. Even if no other false killer whales 
were taken in the following 3 years, a 5-year average incidental M&SI 
would be approximately 4 animals per year, which exceeds the stock's 
PBR level of

[[Page 42093]]

2.5 animals per year. The amount by which PBR would be exceeded under 
the FKWTRT's recommended trigger/closure regime would be even larger as 
PBR (and the trigger) increases. Therefore, NMFS is proposing a lower 
threshold for closing the SEZ, to increase assurance that false killer 
whale mortalities and serious injuries do not exceed PBR.
    As stated in ``(a) Defining the trigger'' above, the calculation 
for the trigger assumes there would be no additional incidental M&SI in 
the four years following the initial, temporary SEZ closure. In almost 
all cases (except for the unlikely scenarios where there are very high 
levels of observer coverage and a high PBR), a single additional 
mortality or serious injury in any of those four years would cause the 
5-year average incidental M&SI level to exceed PBR, thus necessitating 
re-closure of the SEZ. The FKWTRT's recommendation to use the same 
trigger in consecutive years is not compatible with the assumptions of 
the trigger calculation. Additionally, the FKWTRT developed the SEZ and 
its associated closures as a ``backstop'' to reduce false killer whale 
incidental M&SI should the other measures in the plan fail to achieve 
the required reductions. The fact that false killer whales may continue 
to be hooked or entangled in the shallow-set longline fishery anywhere 
it operates, and in the deep-set longline fishery in open areas of the 
EEZ around Hawaii and on the high seas provides support for a more 
protective set of restrictions in the SEZ.
    For example, if PBR were 4 and observer coverage were 20 percent, 
the trigger would be set at 4. If 4 false killer whale incidental M&SI 
were observed in the current year (``year 1''), the annual incidental 
M&SI estimate would be 20, and assuming zero incidental M&SI in the 
next four years, the 5-year average annual incidental M&SI level would 
be 4, which is equal to PBR. Under this scenario, NMFS would close the 
SEZ after the fourth observed false killer whale mortality or serious 
injury, and reopen the SEZ at the beginning of the next year. If there 
was 1 false killer whale mortality or serious injury observed in the 
following year (``year 2''), the annual incidental M&SI estimate for 
year 2 would be 5, and the 5-year average annual incidental M&SI level 
(including the estimated 20 M&SI from year 1, and the estimated 5 M&SI 
from year 2, and assuming zero M&SI for the following 3 years) would be 
5, which exceeds PBR. Therefore, NMFS would close the SEZ following the 
first observed mortality or serious injury in year 2.
    If a closure of the proposed SEZ is triggered, NMFS proposes to 
notify the fishery and close the area through a Federal Register 
notice. The notice would include the specifics of the closure, as well 
as conditions NMFS would consider in determining when and how to reopen 
the SEZ.
    (e) Reopening the SEZ. The FKWTRT recommended that NMFS reopen the 
SEZ if one or more of the follow criteria were met: (i) NMFS 
determines, upon consideration of the FKWTRT's recommendations and 
evaluation of all relevant circumstances (e.g., the mortality or 
serious injury was a result of non-compliance with gear requirements, 
rather than an indication that the FKWTRP measures were ineffective), 
that reopening of the SEZ is warranted; (ii) in the 2-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 EEZ around Hawaii; (iii) in the 
2-year period immediately following the date of the closure, the deep-
set longline fishery has reduced its combined rate of false killer 
whale incidental M&SI within the remaining open areas of the EEZ around 
Hawaii and on the high seas (which includes the EEZ around Johnston 
Atoll, but not Palmyra Atoll) by an amount proportionate to the rate 
that would be required to reduce false killer whale incidental M&SI 
within the EEZ around Hawaii to below the stock's PBR (e.g., if the PBR 
for the Hawaii Pelagic stock inside the EEZ around Hawaii was 2.5 and 
false killer whale incidental M&SI inside the EEZ was 7.3, an 
approximately 66 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 
EEZ around Hawaii for up to the 5 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 may consider these and other criteria when determining when to 
reopen the SEZ, but is not proposing to include the criteria in 
regulations. NMFS needs to maintain flexibility and consider scenarios 
not addressed by the criteria developed by the FKWTRT. For example, if 
the FKWTRT recommended and NMFS adopted additional measures intended to 
reduce false killer whale incidental M&SI, NMFS could reopen the SEZ 
before the criteria outlined above were met. Alternatively, NMFS could 
consider keeping the SEZ closed for a period longer than specified in 
the criteria above, if the total number of false killer whale 
incidental M&SI, including those incidentally taken in open areas of 
the EEZ, exceeded PBR to such a degree that the 5-year average 
incidental M&SI level could not drop below PBR.
    The proposed requirements for the SEZ trigger and procedures would 
be specified at 50 CFR part 229.

Proposed Non-Regulatory Measures

    NMFS proposes the following 6 non-regulatory measures, the 
implementation for which would be NMFS' responsibility:
    (1) Increase the precision of bycatch estimates in the deep-set 
longline fishery;
    (2) Notify the FWKTRT when there is an observed interaction of a 
known or possible false killer whale, and provide the FKWTRT 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;
    (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 FKWTRT; and
    (6) Reconvene the FWKTRT at regular intervals.
    Though these measures are part of the proposed FKWTRP, they are not 
proposed as regulations, and would not be included in the take 
reduction plan regulations at 50 CFR part 229. These proposed 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 ESA 
Biological Opinion on the deep-set longline fishery (NMFS, 2005b). 
Coverage levels vary throughout the year because of fluctuation in the 
longline fleet's activity level, the demands of 100 percent coverage in 
the shallow-set longline fishery, and an influx of observers after 
completing the PIROP observer training course (McCracken, 2009). 
Observed trips in the deep-set longline fishery are selected using two 
sampling schemes to accommodate this fluctuating coverage and to 
utilize observers efficiently. The primary scheme is a systematic 
sample of ``call numbers,'' which are assigned

[[Page 42094]]

when longline vessels call the PIROP contractor before departing on a 
fishing trip (McCracken, 2009). Currently, the quarterly sample 
selected under this systematic design is targeted at 15 percent, but it 
may be closer to 10 percent, particularly in the first quarter of the 
year. Additional trips needed to reach the full targeted level (i.e., 
20 percent) are selected using a secondary sampling scheme, when all 
trips selected by the systematic sample are already covered and an 
observer is available for deployment. The additional trips are randomly 
selected with equal probability from the calls received that day that 
had not already been selected. This secondary sampling, or ``day 
sampling,'' is flexible and dependent on the need to deploy observers 
(McCracken, 2009).
    The FKWTRT recommended NMFS increase observer coverage in the deep-
set longline fishery to at least a 25 percent average quarterly 
coverage rate, to increase the precision (i.e., decrease the error) of 
the bycatch estimate in the fishery. Following submission of the 
FKWTRT's recommendations, NMFS conducted an analysis to determine how 
the error in estimated bycatch of cetaceans could be reduced by 
increasing observer coverage (McCracken and Boggs, 2010). This analysis 
indicates that ensuring the 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.
    NMFS proposes to implement an increase in systematic observer 
coverage in the deep-set longline fishery, though there would be no 
increase in overall coverage. Day sampling would 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 would work 
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.

(2) Notify the FKWTRT of Observed Interactions

    The FKWTRT 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. This information is currently available through PIROP's 
quarterly and annual reports. Because this information may be useful 
for the FKWTRT as it considers the success of the management measures 
and considers amendments, NMFS proposes to 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 FKWTRT 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

    The FKWTRT recommended that when there is an observed interaction 
of a known or possible false killer whale, NMFS should confirm species 
identification and make the serious injury determination as soon as 
possible after the observer debriefing and data approval for the 
interaction, and provide the non-confidential information to the FKWTRT 
with the rationale for the determination. Currently, preliminary 
serious injury determinations for the Hawaii-based longline fisheries 
are made once a year by NMFS scientists, and are reviewed by the 
Pacific Scientific Review Group (PSRG) at their annual meeting before 
being finalized. NMFS understands that an expedited process to provide 
final serious injury determinations closer to real-time would assist 
the FWKTRT in monitoring the success of the FKWTRP, and would be 
necessary to determine whether the trigger for closing the Southern 
Exclusion Zone has been met. Therefore, NMFS proposes to make the 
serious injury determinations as soon as possible by coordinating with 
PIROP, NMFS Pacific Islands and Southwest Fisheries Science Centers, 
and the Pacific Scientific Review Group.

(4) Changes to Observer Data Collection Protocol and Training

    In its deliberations, the FKWTRT relied heavily on analyses of 
observer program data. The FKWTRT noted that specific information that 
is not currently collected would be useful to support future FKWTRT 
deliberations and to further understand and identify patterns of marine 
mammal bycatch. The FKWTRT recommended that NMFS modify the observer 
data forms to collect the following types of information: (a) 
Differentiation among marine mammal mouth hooking types (lip, jaw, 
internal, ingested, other); (b) more detail on how bycaught marine 
mammals are handled and any efforts made to release them without gear; 
(c) hook type and terminal tackle configuration of the gear involved in 
the interaction; (d) whether sets are split, and the configuration of 
split sets; (e) details of vessel light configuration and how the 
lights are utilized; (f) presence/absence of false killer whales during 
setting and haul-back of gear; (g) false killer whale sighting data 
(e.g., location, group size, behavior) during transits, as well as 
visual sighting effort data; and (h) injuries to vessel crew that are 
incurred due to gear changes and release of protected species.
    The FKWTRT also made recommendations regarding observer protocol 
during and after marine mammal interactions. The FKWTRT recommended 
that observers should: (a) Encourage the vessel crew to inform the 
captain immediately if/when a marine mammal is hooked or entangled; (b) 
encourage the vessel crew not to cut the line unless instructed by the 
vessel captain or the observer; (c) encourage captains to comment on 
the observer's Marine Mammal Biological Data Form after an interaction 
when a captain can offer additional information; and (d) retain gear 
from interactions, including branchlines and leaders even in the 
absence of a hook, and collect any marine mammal tissues that may be 
present on the gear.
    The FKWTRT made the following recommendations regarding observer 
training: (a) Include videos from prior marine mammal hookings and 
entanglements and subsequent releases; (b) provide better photographic 
equipment to experienced observers and train them in photo-
identification of individual false killer whales through dorsal fin and 
other markings, to support false killer whale research; and (c) train a 
highly-qualified sub-set of observers to obtain biopsy samples of bow-
riding false killer whales, after authorization through a research 
permit.
    NMFS proposes to implement 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. For example, the Marine Mammal 
Biological Data form prompts the observer to differentiate between 
mouth hookings and ingested hooks, if known, and would only require the 
addition of check boxes for lip or jaw hookings. The form also contains 
check boxes for each gear type that remained on the animal (e.g., 
branchline, weight), boxes to note the hook type and size involved in 
the interaction, and a comment section

[[Page 42095]]

specifically for describing the gear remaining on the animal. The form 
also has space for other comments and drawings of the interaction, and 
observers are instructed to provide as much detail as possible on all 
aspects of the interaction, including any efforts to remove gear from 
the animal. NMFS may develop a list of specific questions to ask the 
observer during debriefing to prompt for further detail. For these 
specific items, the forms may need only minor changes to address the 
FKWTRT's recommendations.
    Regarding observer protocol during and after marine mammal 
interactions, observers are already instructed (via training and the 
Observer Manual) to share with the vessel operator all data items 
recorded, when requested, and if he or she is in disagreement with the 
observer, allow operators to record their own views on the original 
data forms. Observers are also trained to retain gear from marine 
mammal interactions and to collect any marine mammal tissue on the 
gear. Finally, regarding observer training, NMFS includes 4 to 5 videos 
from prior marine mammal hookings and entanglements in a lecture about 
marine mammal interactions. These presentations are regularly updated 
with new videos when available.

(5) 2010 HICEAS II Survey Data

    NMFS conducted a cetacean assessment survey in the EEZ around 
Hawaii (Hawaiian Islands Cetacean and Ecosystem Assessment Survey, or 
HICEAS II) in August-December 2010. The survey was a collaborative 
effort between the NMFS Pacific Islands and Southwest Fisheries Science 
Centers, and involved 175 days at sea on two NOAA research vessels. It 
is anticipated that the HICEAS II survey will result in updated 
abundance estimates for all Hawaiian cetaceans, including false killer 
whales; preliminary estimates will likely be available by the end of 
2011 or early 2012. The FKWTRT recommend that NMFS expedite the 
processing of the survey data and provide preliminary results to the 
FKWTRT once the PSRG has completed its review. The FKWTRT also 
recommended the PSRG complete its review as expeditiously as possible.
    To the extent possible, NMFS proposes to expedite processing and 
review of the 2010 HICEAS II survey data and provide preliminary 
results to the FKWTRT.

(6) Reconvene FWKTRT at Regular Intervals

    The FKWTRT recommended that NMFS should reconvene the FKWTRT every 
6 months for at least 2 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 to the FKWTRP if necessary. The availability of 
funding may limit the frequency with which NMFS can reconvene the 
FKWTRT for in-person meetings. Therefore, NMFS proposes to reconvene 
the FKWTRT at regular intervals for in-person meetings and/or 
teleconferences, depending on available funding.

Additional Research and Data Collection

    The FKWTRT 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 top nine ranked research 
activities include: (1) Evaluate the impact of weak and/or circle hooks 
on false killer whale bycatch; (2) understand the impact of weak hooks 
on target species catch rates; (3) develop methods for the longline 
fleet to use acoustic recorders to determine false killer whale 
presence prior to setting gear; (4) assess shortline and kaka line 
fishing, including the number of vessels, location, timing, and method 
of fishing; (5) distinguish false killer whale calls from other 
odontocete species; (6) telemetry studies to examine the range and 
movement of false killer whales; (7) regular surveys of the EEZ around 
Hawaii, at least every 5 years, to estimate cetacean abundance; (8) 
continue research into false killer whale abundance using towed and 
stationary acoustics; and (9) collect additional false killer whale 
genetic samples to assess population structure. The FKWTRT 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 FKWTRT 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 proposes to pursue the additional research and data collection 
goals outlined by the FKWTRT, within the constraints of available 
funding. Further, NMFS proposes to consider the FKWTRT's 
recommendations for additional research and data collection when 
establishing NMFS' funding priorities. NMFS would follow the 
recommendations to the extent that good scientific practice and 
resources allow. As feasible and appropriate, NMFS would consult and 
coordinate with the FKWTRT during this process. As noted above for non-
regulatory measures, these research recommendations are part of the 
proposed FKWTRP, but they are not proposed as regulations and would not 
be included in the take reduction plan regulations at 50 CFR part 229.

Evaluating the Effectiveness of the FKWTRP

    The MMPA specifies that take reduction teams shall meet every six 
months, or at such other intervals as necessary, to monitor the 
implementation of the final take reduction plan until the objectives of 
the plan have been met. Under the proposed FKWTRP, the FKWTRT would 
periodically: (1) Analyze the status of scientific information on false 
killer whales; (2) evaluate the effectiveness of the FWKTRP, both in 
terms of meeting MMPA and stated goals; and (3) adjust the FKWTRP's 
management measures and research program, as appropriate, to ensure 
that the short- and long-term goals of the FKWTRP will be met. NMFS 
would provide to the FKWTRT updates on the following types of 
information to inform these periodic assessments: (1) Status of FWKTRP 
implementation; (2) SARs; (3) observed false killer whale interactions 
in the longline fishery and associated serious injury determinations; 
(4) preliminary results of the HICEAS II survey; (5) other data 
collection and research findings, including the results of the weak 
circle hook experiment; and (6) the status of observer coverage. The 
timing of these assessments would be tied to both the availability of 
data and the time needed to adequately evaluate the effectiveness of 
management measures or the results of the research program.

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 FKWTRT recognized that there may be other measures of success 
of the FKWTRP, and identified 12 measures of progress or success for 
various components of the Draft FKWTRP. These include: (1) Fully 
implement circle hooks in the deep-set longline fishery; (2) complete 
weak circle hook research and associated implementation of weak circle 
hooks, as indicated by research; (3) achieve zero false killer whale 
incidental M&SI in two years

[[Page 42096]]

within the EEZ around Hawaii; (4) achieve a reduction of false killer 
whale incidental M&SI consistent with the percentage needed to move 
below PBR within the EEZ around Hawaii; (5) reduce the false killer 
whale incidental M&SI rate; (6) measurably reduce the false killer 
whale incidental take rate; (7) convene the FKWTRT twice each year for 
the two years following FKWTRP implementation; (8) achieve observer 
deployment levels of 25 percent or more in the deep-set longline 
fishery; (9) make progress in each of the four identified research 
categories; (10) complete the 2010 HICEAS II survey and provide the 
results to the FKWTRT in the manner recommended in the Draft FKWTRP; 
(11) complete cetacean assessment surveys on the recommended schedule 
(every five years); and (12) achieve rapid processing of and 
notification of the FKWTRT of false killer whale incidental M&SI 
information.
    NMFS would monitor and consult with the FKWTRT regarding progress 
toward meeting the goals of the FKWTRP and the other identified 
measures of success. The measures of success listed above may change 
based on the management measures contained in the final FKWTRP (e.g., 
an increase in precision of bycatch estimates rather than an overall 
increase in observer coverage in the deep-set longline fishery).

Public Comments Solicited

    NMFS is soliciting comments on any aspect of this proposed rule, 
including the development and implementation of the FKWTRP pursuant to 
MMPA section 118(f)(1) and the regulatory and non-regulatory measures 
proposed. NMFS is particularly interested in comments on the proposed 
SEZ, including the methods for calculating and determining the trigger, 
changing the trigger, and implementing the closure based on the 
trigger. NMFS is also specifically soliciting comments on the timing 
for implementing the proposed measures, and whether certain proposed 
measures, such as the hook and branchline requirements, would benefit 
from delayed implementation to allow time for suppliers to obtain an 
adequate quantity of the required gear, and for fishermen to purchase 
and switch over their gear.

Classification

    NMFS determined that this action is consistent to the maximum 
extent practicable with the enforceable policies of the approved 
coastal management program of the State of Hawaii. This determination 
has been submitted for review by the responsible state agency under 
section 307 of the Coastal Zone Management Act.
    Executive Order (E.O.) 13132 requires agencies to take into account 
any federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statute). This proposed 
rule does not contain policies with federalism implications under E.O. 
13132. All of the proposed actions would occur in the Exclusive 
Economic Zone beyond state jurisdiction. Pursuant to E.O. 13132, the 
Assistant Secretary for Legislative and Intergovernmental Affairs will 
provide notice of the proposed action and request comments from the 
governor of the State of Hawaii.
    NMFS prepared a draft environmental assessment for this action that 
discusses the impact on the environment as a result of this proposed 
rule. The Preferred Alternative (the proposed action) would be 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 weak circle hooks, minimum line diameter, 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. No effects to the physical environment, 
including designated Essential Fish Habitat, Habitat Areas of 
Particular Concern, Critical Habitat, or physical features, or to 
target and non-target species would be 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 due 
to reduced catch and fishing effort; potential 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, including recreationists and tourists, wildlife viewers, 
scientists and educators, and members of present and future generations 
of the general public; and some positive effect on non-longline 
commercial fisheries or recreational/subsistence fisheries if target 
fish population abundance rises. A copy of the draft environmental 
assessment is available on www.regulations.gov and the FKWTRT website 
(http://www.nmfs.noaa.gov/pr/interactions/trt/falsekillerwhale.htm), 
and is available upon request from the Regulatory Branch Chief [see 
ADDRESSES].
    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA), 
pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), that describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and its legal basis are included in the 
preamble of this proposed rule. A summary of the analysis follows. The 
full analysis is available on www.regulations.gov or by request from 
the Regulatory Branch Chief [see ADDRESSES].
    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.
    The alternatives considered and analyzed include three options. 
Alternative 1 (the No Action alternative) would maintain the status quo 
management for the Hawaii-based longline fisheries under the Fishery 
Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific 
Region. Alternative 2 (the Preferred Alternative and proposed action) 
would implement the regulatory and non-regulatory measures recommended 
by the FKWTRT, with some modifications. These measures are described in 
the

[[Page 42097]]

preamble of this proposed rule. Alternative 3 would close the EEZ 
around Hawaii to all commercial longline fishing. Alternatives 2 and 3 
are herein referred to as the ``Action Alternatives.''
    The Action Alternatives are not expected to generate benefits to 
the small businesses in the longline fishery, as both alternatives 
would further restrict the location of longline fishing, and in the 
case of the Preferred Alternative, 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 branchlines; 
potential lost revenue due to potential effects of weak circle hooks on 
the total weight of tuna caught and revenue generated; additional 
travel costs (fuel and time) of fishing outside the MHI longline 
exclusion zone during the time it is currently open to longline 
fishing, as well as the cost of fishing outside the SEZ (if triggered); 
and annual cost of Protected Species Workshop certification of 
operators and owners. Initial, one-time costs would be expected to 
range from $2,000 to $5,000 per business for the 68 businesses owning 1 
vessel each, to $14,000-$33,000 for the single business owning 6 
vessels. Annual ongoing costs would be expected to range from $23,000 
to $62,000 per business for the 68 businesses owning 1 vessel each, to 
$140,000-$370,000 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.
    The complete closure of the 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 EEZ. Annual 
ongoing costs associated with implementing Alternative 3 range from 
$67,000 to $79,000 per business for the 68 businesses owning 1 vessel 
each, to $401,000-$474,000 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.
    No additional reporting, record-keeping, and other compliance 
requirements are anticipated for small businesses. NMFS has identified 
no Federal rules that may duplicate, overlap, or conflict with the 
action alternatives. After careful examination of the best available 
scientific data on false killer whales, NMFS believes that only the two 
Action Alternatives have the potential to accomplish the stated 
objectives and legal mandates associated with the conservation of this 
species. Retention of the ``No Action'' alternative is not a viable 
choice for several reasons. Retaining the No Action alternative would 
be contrary to the agency's obligations under the MMPA to reduce 
fishery impacts on false killer whales to acceptable levels. 
Additionally, adopting the status quo would not be consistent with the 
objectives identified by the agency for this action. Both Alternatives 
2 and 3 would meet the objectives of the proposed rule. Alternative 3 
was not selected because it would likely result in substantially 
greater economic impacts to small entities than the Preferred 
Alternative, without a greater likelihood of achieving the objectives 
of the proposed rule.

References Cited

    A list of all references cited in this proposed rule may be found 
on www.regulations.gov and the FKWTRT website (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.

    Dated: July 11, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR chapters II and VI 
are proposed to be amended as follows:

CHAPTER II

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

    1. The authority citation for 50 CFR part 229 reads as follows:

    Authority:  16 U.S.C. 1361 et seq.

    2. In Sec.  229.3, add paragraphs (v) through (y) 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.  665.813(k) and 
(l) of this title.
    (w) It is prohibited to fish with longline gear in the Main 
Hawaiian Islands Longline Fishing Prohibited Area, as defined in Sec.  
665.806(c) of this title.
    (x) It is prohibited to deep-set in the Southern Exclusion Zone, as 
defined in Sec.  229.37(d)(2) of this part, during the time the area is 
closed to deep-set longline fishing pursuant to paragraph Sec.  
229.37(e) of this part.
    (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 
paragraph Sec.  229.37(f) of this part.
    3. In subpart C, add 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, Hawaii insular, and Palmyra Atoll 
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 of this part, 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) Gear requirements. While deep-setting, the owner and operator 
of a vessel registered for use under a Hawaii longline limited access 
permit must comply with the hook, branch line, and leader requirements 
described in Sec.  665.813(k) and (l) of this title.
    (d) Prohibited area management. (1) MHI Longline Fishing Prohibited 
Area. Longline fishing is prohibited in the MHI Longline Fishing 
Prohibited Area as defined in Sec.  665.806(c) of this title.

[[Page 42098]]

    (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 consists of 
the portion of the EEZ around the Hawaiian Archipelago enclosed by 
straight lines connecting the following coordinates in the order 
listed:

------------------------------------------------------------------------
            Point                    N. lat.               W. lon.
------------------------------------------------------------------------
L...........................  22[deg]46.16'         165[deg] 00.00'
M...........................  22[deg] 14.45'        161[deg] 44.38'
E...........................  21[deg]40.00'         161[deg] 55.00'
D...........................  20[deg]40.00'         161[deg] 40.00'
C...........................  20[deg]00.00'         157[deg] 30.00'
B...........................  18[deg]20.00'         156[deg] 25.00'
A...........................  18[deg]05.00'         155[deg] 40.00'
N...........................  18[deg]45.02'         154[deg] 30.00'
------------------------------------------------------------------------
and from Point A south along longitude 165[deg]00' W. until intersecting
 the EEZ boundary around the Hawaiian Archipelago, and from Point H
 south along longitude 154[deg]30' W. until intersecting the EEZ
 boundary around the Hawaiian Archipelago.
------------------------------------------------------------------------

     (e) Southern Exclusion Zone trigger and procedures. (1) Prior to 
the start of each fishing year, the Assistant Administrator will 
publish in the Federal Register the expected observer coverage for the 
fishing year, the potential biological removal level for the Hawaii 
Pelagic stock of false killer whales, and the associated trigger 
calculated using the formula in paragraph (e)(2) of this section.
    (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 the Hawaiian Archipelago, 
and that serves as the bycatch threshold for closing the Southern 
Exclusion Zone to deep-set longline fishing. The trigger is calculated 
using the formula

Trigger = 5 * (percent observer coverage) * (potential biological 
removal)


and is rounded down to the nearest whole number.

    (3) Unless otherwise subject to subparagraph (e)(4), if there is an 
observed false killer whale mortality or serious injury in the EEZ 
around the Hawaiian Archipelago 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-setting until the end of 
that fishing year.
    (4) If during any of the four calendar years 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 U.S. EEZ 
around the Hawaiian Archipelago, the Southern Exclusion Zone will be 
closed to deep-set longline fishing until the area is reopened by the 
Assistant Administrator.
    (5) 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 U.S. EEZ 
around the Hawaiian Archipelago, then NMFS shall immediately convene 
the False Killer Whale Take Reduction Team.
    (6) Upon determining that closing the Southern Exclusion Zone is 
warranted pursuant to the procedures in paragraphs (e)(1) through (4) 
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 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.

CHAPTER VI

PART 665--FISHERIES IN THE WESTERN PACIFIC

    4. The authority citation for 50 CFR part 665 reads as follows:

    Authority:  16 U.S.C. 1801 et seq., or 16 U.S.C. 1361 et seq.

    5. In 665.802, add paragraph (n) to read as follows:


Sec.  665.802  Prohibitions.

* * * * *
    (n) Fail to comply with hook, leader and branchline requirements 
while engaged in deep-setting from a vessel registered for use under a 
Hawaii longline limited access permit issued under Sec.  665.801(b) in 
violation of Sec.  665.813(k) and (l).
* * * * *
    6. In Sec.  665.806, revise paragraph (c) to read as follows:


Sec.  665.806  Longline fishing prohibited area management.

* * * * *
    (c) Main Hawaiian Islands. The longline fishing prohibited area 
around the main Hawaiian Islands is the portion of the EEZ seaward of 
the Hawaiian Archipelago 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'
------------------------------------------------------------------------

* * * * *
    7. In Sec.  665.813, revise the section heading and add paragraphs 
(k) and (l) to read as follows:


Sec.  665.813  Western Pacific longline fishing requirements.

* * * * *
    (k) While deep-setting, owners and operators of vessels registered 
for use under a Hawaii longline limited access permit must use only 
hooks meeting the following specifications:
    (1) Circle hooks of size 16/0 or smaller, or equivalent;
    (2) Hook shank composed of round, non-flattened wire, with a wire 
diameter not to exceed 4.0 mm; and
    (3) Offset not to exceed 10 degrees.
    (l) While deep-setting, owners and operators of vessels registered 
for use

[[Page 42099]]

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).

[FR Doc. 2011-17965 Filed 7-15-11; 8:45 am]
BILLING CODE 3510-22-P