[Federal Register Volume 84, Number 35 (Thursday, February 21, 2019)]
[Rules and Regulations]
[Pages 5356-5358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02995]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 110131070-2626-02]
RIN 0648-XG781
Pacific Island Pelagic Fisheries; False Killer Whale Take
Reduction Plan; Closure of Southern Exclusion Zone
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; area closure; request for comments.
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SUMMARY: NMFS is closing the Southern Exclusion Zone (SEZ) to deep-set
longline fishing for all vessels registered under the Hawaii longline
limited access program, as a result of the fishery reaching the
established annual trigger of two observed false killer whale
mortalities or serious injuries (M&SI) in the fishery within the U.S.
Exclusive Economic Zone (EEZ) around Hawaii. This action is necessary
to comply with False Killer Whale Take Reduction Plan (Plan)
regulations that establish the SEZ closure trigger and procedures to
limit M&SI of false killer whales in the Hawaii deep-set longline
fishery.
DATES: Effective February 22, 2019.
NMFS must receive comments by March 25, 2019.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2019-0005, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0005. Click the
``Comment Now'' icon, complete the required fields, and enter or attach
your comments.
Mail: Submit written comments to Michael D. Tosatto,
Regional Administrator, NMFS Pacific Islands Region (PIR), attention
Kevin Brindock, Protected Resources, 1845 Wasp Blvd., Bldg. 176,
Honolulu, HI 96818.
Instructions: NMFS may not consider comments sent by any other
method, to any other address or individual, or received after the end
of the comment period. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
FOR FURTHER INFORMATION CONTACT: Kevin Brindock, Protected Resources,
NMFS Pacific Islands Regional Office, 808-725-5146,
[email protected]; or Kristy Long, NMFS Office of Protected
Resources, 206-526-4792, [email protected].
SUPPLEMENTARY INFORMATION: The False Killer Whale Take Reduction Plan
(Plan) was implemented on December 31, 2012, pursuant to section 118(f)
of the Marine Mammal Protection Act (MMPA) to reduce the level of
incidental M&SI of the Hawaii pelagic and Hawaii insular stocks of
false killer whales in the Hawaii longline fisheries (77 FR 71260;
November 29, 2012). The Plan, based on consensus recommendations from
the False Killer Whale Take Reduction Team, was implemented by
regulations, which included the creation of the SEZ that would be
closed to deep-set longline fishing if a certain number (trigger) of
false killer whale M&SI are observed in the deep-set fishery in the
EEZ. As described in the Plan regulations (50 CFR 229.37(d)(2)), the
SEZ is bounded on the east at 154[deg]30' W longitude, on the west at
165[deg] W longitude, on the north by the boundaries of the Main
Hawaiian Islands Longline Fishing Prohibited Area and Papahanaumokuakea
Marine National Monument, and on the south by the EEZ boundary (see
Fig. 1). A SEZ closure is triggered if, after expanding the number of
observed M&SI, the Hawaii pelagic stock's potential biological removal
[[Page 5357]]
(PBR) level has been exceeded. The 2012 final rule set the trigger as
the larger of either two observed M&SI of false killer whales within
the EEZ around Hawaii, or the smallest number of observed M&SI of false
killer whales that, when extrapolated based on the percentage observer
coverage for that year (20 percent), exceeds PBR. Under the final 2017
Stock Assessment Report, PBR is 9.3 pelagic false killer whales per
year. Accordingly, with 20 percent observer coverage, the current
trigger remains two observed M&SI (i.e., two observed M&SI expands to
10, which exceeds PBR of 9.3).
[GRAPHIC] [TIFF OMITTED] TR21FE19.000
NMFS-certified fishery observers documented two false killer whales
hooked during deep-set trips in the U.S. EEZ, one each on January 10
and January 15, 2019. One of these interactions resulted in a mortality
and the other animal was released injured. NMFS followed the procedures
outlined in the final rule and criteria in the NMFS process for
distinguishing serious from non-serious injuries of marine mammals
(NMFS Policy Directive PD 02-238 and NMFS Instruction 02-238-01) to
evaluate the injury of the animal that was released injured, and
determined that it was a serious injury. Therefore, NMFS has determined
that the SEZ trigger (i.e., two M&SI) has been met, and closing the SEZ
to deep-set longline fishing is required to comply with the Plan.
In accordance with 50 CFR 229.37(e)(6)), NMFS must publish
notification that the SEZ will be closed to deep-set longline fishing
beginning on a specified date, which is not earlier than 7 days and not
later than 15 days after the date of filing the closure notice for
public inspection at the Office of the Federal Register. During the
closure, it is prohibited to fish using deep-set longline gear in the
SEZ.
The SEZ was closed to deep-set longline fishing on July 24, 2018,
following four false killer whale serious injuries in the Hawaii deep-
set longline fishery that occurred inside the EEZ around Hawaii during
that calendar year. The SEZ was reopened to deep-set longline fishing
on January 1, 2019. Because an observed false killer whale mortality or
serious injury in the EEZ around Hawaii met the established trigger in
the subsequent calendar year following an SEZ closure, the SEZ will be
closed until one or more of the following criteria described in the
Plan regulations (50 CFR 229.37(e)(5)) are met: (i) The Assistant
Administrator determines, upon consideration of the False Killer Whale
Take Reduction Team's recommendations and evaluation of all relevant
circumstances, that reopening of the SEZ is warranted; (ii) In the two-
year period immediately following the date of the SEZ closure, the
deep-set longline fishery has zero observed false killer whale
incidental mortalities and serious injuries within the remaining open
areas of the EEZ around Hawaii; (iii) In the two-year period
immediately following the date of the closure, the deep-set longline
fishery has reduced its total rate of false killer whale incidental
mortality and serious injury (including the EEZ around Hawaii, the high
seas, and the EEZ around Johnston Atoll (but not Palmyra Atoll) by an
amount equal to or greater than the rate that would be required to
reduce false killer whale incidental M&SI within the EEZ around Hawaii
to below the Hawaii Pelagic false killer whale stock's PBR level; 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 five most recent years is below the PBR
level for the Hawaii Pelagic stock of false killer whales at that time.
This document serves as advance notification to fishermen, the
fishing industry, and the general public that the SEZ will be closed to
deep-set longline fishing starting on February 22, 2019.
NMFS will consider public comments on this temporary rule. NMFS
must receive comments by the date provided
[[Page 5358]]
in the DATES heading, not postmarked or otherwise transmitted by this
date.
Classification
There is good cause to waive prior notice and an opportunity for
public comment on this action pursuant to 5 U.S.C. 553(b)(B). Providing
an opportunity for prior notice and comment would be contrary to the
public interest because the SEZ closure has been triggered by a second
observed M&SI, and immediate closure of the SEZ is necessary to prevent
additional mortalities or serious injuries, which may have
unsustainable impacts on the Hawaii pelagic stock of the false killer
whale. Furthermore, prior notice and comment is unnecessary because the
take reduction plan final rule (77 FR 71259, November 29, 2012) that
implements the procedure for closing the SEZ (codified at 50 CFR
229.37(d)(2) and (e)) has already been subject to an extensive public
process, including the opportunity for prior notice and comment. All
that remains is to notify the public of the second observed mortality
and serious injury of a pelagic false killer whale resulting from
commercial longline operations, and the longline closure of the SEZ.
Although this action is being implemented without the opportunity for
prior notice and comment, NMFS is soliciting and will respond to public
comments from those affected by or otherwise interested in this rule.
The NOAA Assistant Administrator for Fisheries also finds good
cause to waive the 30-day delay in the effectiveness of this action
under 5 U.S.C. 553(d)(3). Failing to waive the 30-day delay in
effectiveness would likely result in additional interactions and
possible M&SI to the Hawaii pelagic false killer whale stock. Under the
MMPA, NMFS must reduce M&SI of marine mammal stocks protected by take
reduction plan regulations. This includes taking action to close the
SEZ immediately upon a second observed M&SI resulting from commercial
longlining in the EEZ. Accordingly, the SEZ closure must be implemented
immediately to ensure compliance with the provisions of the MMPA and
the take reduction plan regulations. Nevertheless, NMFS recognizes the
need for fishermen to have time to haul their gear and relocate to
areas outside of the SEZ; thus, NMFS makes this action effective 7 days
after filing this document in the Federal Register.
This action is required by 50 CFR 229.37(e)(3), and is exempt from
review under Executive Order 12866.
Authority: 16 U.S.C. 1361 et seq.
Dated: February 15, 2019.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2019-02995 Filed 2-15-19; 4:15 pm]
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