Taking of Marine Mammals Incidental to Commercial Fishing Operations:

Federal Register Volume 76, Number 137 (Monday, July 18, 2011)

Proposed Rules

Pages 42082-42099

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-17965

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.

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,

Nancy.Young@noaa.gov, 808-944-2282; Lance Smith, NMFS PIR,

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Lance.Smith@noaa.gov, 808-944-2258; or Kristy Long, NMFS Office of

Protected Resources, Kristy.Long@noaa.gov, 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

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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

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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

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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 0.80; 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;

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(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

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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.

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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.

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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