[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Rules and Regulations]
[Pages 50959-50961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18308]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110131070-2626-02; RTID 0648-XA306]


Pacific Island Pelagic Fisheries; False Killer Whale Take 
Reduction Plan; Reopening of the Southern Exclusion Zone to the Hawaii 
Deep-Set Longline Fishery

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

ACTION: Temporary rule.

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SUMMARY: In accordance with the Marine Mammal Protection Act of 1972, 
and the False Killer Whale Take Reduction Plan, NMFS hereby reopens the 
Southern Exclusion Zone to deep-set longline fishing for all vessels 
registered under the Hawaii longline limited access program. At least 
one of the Southern Exclusion Zone reopening criteria defined in the 
False Killer Whale Take Reduction Plan regulations has been met.

DATES: Effective August 25, 2020.

FOR FURTHER INFORMATION CONTACT: Diana Kramer, NMFS Pacific Islands 
Region, (808) 725-5167, [email protected]; or Kristy Long, NMFS 
Office of Protected Resources, (301) 427-8402, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    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 mortality and 
serious injury (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 created the Southern Exclusion Zone (SEZ) (50 CFR 
229.37(d)(2)) that would be closed to deep-set longline fishing if a 
certain number (trigger) of false killer whale M/SI were observed in 
the deep-set fishery in the United States Exclusive Economic Zone 
(EEZ). As described in the Plan regulations, 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 Figure 1). The trigger is 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, exceeds the stock's potential biological 
removal (PBR) level. The final 2017 Stock Assessment reports a PBR of 
9.3 pelagic false killer whales per year. With 20 percent observer 
coverage in 2018 and 2019, the trigger remained at two observed M/SI 
(i.e., two observed M/SI expands to 10, which exceeds the PBR of 9.3).

[[Page 50960]]

[GRAPHIC] [TIFF OMITTED] TR19AU20.000

    The SEZ was closed to deep-set longline fishing on July 24, 2018, 
following four false killer whale interactions in the Hawaii deep-set 
longline fishery that occurred inside the EEZ around Hawaii during that 
calendar year. NMFS-certified fishery observers documented a total of 
four false killer whales hooked and released injured during deep-set 
trips in the U.S. EEZ, one each on February 8, May 23, May 24, and June 
3, 2018. 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, 
NMFS Instruction 02-238, and NMFS Instruction 02-238-01) to evaluate 
these injuries, and determined that all four were serious injuries, 
which met the trigger for closing the SEZ (83 FR 33848; July 18, 2018). 
The SEZ was reopened to deep-set longline fishing on January 1, 2019 
per the Plan regulations (50 CFR 229.37(e)(3)).
    The SEZ was then closed to deep-set longline fishing for a second 
consecutive calendar year on February 22, 2019, after the SEZ trigger 
was met for 2019. 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. Following the 
procedures outlined in the final rule and criteria in the NMFS process 
for distinguishing serious from non-serious injuries of marine mammals 
the injury of the animal that was released was determined to be a 
serious injury. Therefore, the SEZ trigger had been met, and NMFS 
closed the SEZ to deep-set longline fishing as required to comply with 
the Plan (84 FR 5356; February 21, 2019).

Criteria for Reopening the SEZ

    Because the number of observed false killer whale M/SI in the EEZ 
around Hawaii in 2019 met the established trigger in the subsequent 
calendar year following a previous SEZ closure (2018), the SEZ remains 
closed until one or more of the following criteria are met, as 
described in the Plan regulations (50 CFR 229.37(e)(7)): (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 2 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 2 year period 
immediately following the date of the closure, the deep-set longline 
fishery has reduced its total rate of false killer whale incidental 
mortality and serious injury (including the EEZ around Hawaii, the high 
seas, and the EEZ around Johnston Atoll (but not Palmyra Atoll) by an 
amount equal to or greater than the rate that would be required to 
reduce false killer whale incidental 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 5 most recent years is below the PBR 
level for the Hawaii Pelagic stock of false killer whales at that time.

Basis for Determination To Reopen the SEZ

    To determine if reopening of the SEZ is warranted, NMFS evaluated 
all criteria and determined that criterion (iv) has been satisfied 
based on best available science. In June 2020, NMFS published NOAA 
Administrative Report H-20-06, ``Oleson, E.M. 2020. Abundance, 
potential biological removal, and bycatch estimates for the Hawaii 
pelagic stock of false killer whales for 2015-2019.'' This report 
provided updated abundance and M/SI information for the Hawaii pelagic 
stock of false killer whales. The current abundance estimate for the 
Hawaii pelagic stock of false killer whales presented in this report is 
2,086 (Coefficient of Variation (CV) = 0.35) individuals in the Hawaii 
EEZ. The

[[Page 50961]]

minimum population abundance (Nmin), used for computation of PBR, is 
calculated as 1,567 animals. The PBR for this stock within the EEZ is 
calculated to be 16 pelagic false killer whales. Under the Marine 
Mammal Protection Act Guidelines for Assessing Marine Mammal Stocks 
(NMFS 2012), the 5-year (2015-2019) average M/SI rate of pelagic false 
killer whales within the Hawaii EEZ incidental to the Hawaii longline 
deep-set fishery is 9.8 whales per year. Based on this information, 
NMFS has determined that criterion (iv) of the Plan is met, with the 5-
year average estimated false killer whale M/SI incidental to the deep-
set longline fishery (9.8 whales) below PBR level for the Hawaii 
Pelagic stock of false killer whales (16 whales). Consequently, in 
compliance with 50 CFR 229.37(e)(8) NMFS is reopening the SEZ to Hawaii 
deep-set longline fishing.
    Information on the Plan is available on the internet at the 
following address: https://www.fisheries.noaa.gov/pacific-islands/marine-mammal-protection/pacific-islands-region-false-killer-whale-take-reduction-team. NOAA Administrative Report H-20-06 is available on 
the internet at the following address: https://doi.org/10.25923/wmg3-ps37, and NOAA Technical Memorandum NMFS-PIFSC-104 is available on the 
internet at the following address: https://doi.org/10.25923/2jjg-p807. 
Copies of reference materials may also be obtained from the NMFS 
Pacific Islands Regional Office, Protected Resources Division, 1845 
Wasp Blvd., Building 176, Honolulu, HI 96818.
    This document serves as advance notification to fishermen, the 
fishing industry, and the general public that the SEZ will be opened to 
deep-set longline fishing starting on August 25, 2020.

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). Prior 
notice and comment is unnecessary because the take reduction plan final 
rule (77 FR 71259, November 29, 2012) that implements the procedure 
reopening the SEZ (codified at 50 CFR 229.37(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 that 
the SEZ reopening criteria defined in the Plan regulations have been 
met and the SEZ will be opened to deep-set longline fishing.
    This action is required by 50 CFR 229.37(e)(7), and is exempt from 
review under Executive Order 12866.

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

    Dated: August 14, 2020.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-18308 Filed 8-18-20; 8:45 am]
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