Daily Rules, Proposed Rules, and Notices of the Federal Government
This final rule, which serves as the final FKWTRP, implements regulatory and non-regulatory measures recommended by the Team, with some modifications, to satisfy the requirements of the MMPA. Details concerning the justification for and development of this FKWTRP were provided in the proposed rule (76 FR 42082, July 18, 2011) and are not repeated here. NMFS requested public comment on the proposed rule and provided a 90-day public comment period. In addition, one Team meeting was conducted during the 90-day public comment period. Below, we provide information on the affected false killer whale stocks, describe the final FKWTRP management measures, summarize the public comments received and provide responses, and describe changes made to the proposed regulations based on the comments.
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 six stranding records from Hawaiian waters (Nitta, 1991; Maldini et al., 2005). One on-effort sighting of false killer whales was made during a NMFS 2002 shipboard survey and six during a 2010 shipboard survey of waters within the U.S. Exclusive Economic Zone (EEZ) around the Hawaii Archipelago (Barlow, 2006; Bradford et al., 2012). Smaller-scale surveys conducted around the main Hawaiian Islands (MHI) show that false killer whales are also encountered in nearshore waters there (Mobley et al., 2000; Baird et al., 2008), and sightings during the 2010 shipboard survey reveal that the species also occurs near shore in the Northwestern Hawaiian Islands (NWHI; Baird et al., 2012). This species also occurs in the U.S. EEZ around Palmyra Atoll, Johnston Atoll (NMFS unpublished data), and American Samoa (Johnston et al., 2008; Oleson, 2009; Carretta et al., 2012a).
In the MMPA draft 2012 Stock Assessment Report (SAR), there are five 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 NWHI stock, which includes false killer whales inhabiting waters within 93 km (50 nm) of the NWHI and Kauai; (3) the Hawaii Pelagic stock, which includes false killer whales inhabiting waters greater than 40 km (22 nm) from the MHI; (4) the Palmyra Atoll stock, which includes false killer whales found within the U.S. EEZ around Palmyra Atoll; and (5) the American Samoa stock, which includes false killer whales found within the U.S. EEZ around American Samoa (Carretta et al., 2012a). For reasons described in the
Moreover, because the 2010 survey information only recently became available, this FKWTRP incorporates abundance estimates for the Hawaii Pelagic and Hawaii Insular Stocks that were not considered by the Team or identified in the proposed rule. However, these new abundance estimates do not change any of the regulatory or non-regulatory measures identified in the proposed rule, and are used primarily to supplement and explain existing information in the record, including the determination of each stock's current PBR. The Team was advised at various meetings of the ongoing cetacean survey and data analysis, and of the likelihood that abundance estimates and PBR for the Hawaii Pelagic stock of false killer whales would increase some amount. Both the Team's consensus FKWTRP and the proposed FKWTRP identified a
The non-strategic Palmyra Atoll stock of false killer whales was included in the scope of the Team's discussions (see Notice of Establishment of a False Killer Whale Take Reduction Team and Meeting, 75 FR 2853, January 19, 2010), the Team's recommendations (FKWTRT, 2010), and NMFS' proposed Plan (76 FR 42082, July 18, 2011). MMPA Section 118(f)(1) provides that NMFS may develop take reduction plans for non-strategic marine mammal stocks interacting with a Category I fishery if NMFS determines, after notice and opportunity for public comment, that the fishery has a high level of mortalities and serious injuries (M&SI) across a number of such marine mammal stocks. The MMPA does not further define the term “high level”. However, evaluation of the fishery's M&SI compared to PBR for the non-strategic marine mammals taken in the fishery, as presented in the final 2011 SARs (Carretta et al., 2012b; assessments for these stocks were not updated in the draft 2012 SARs), indicate levels of M&SI (i.e., between 0 and 4.7 percent of PBR) across seven stocks that meet the insignificance threshold set forth in 50 CFR 229.2. Accordingly, NMFS does not consider this level of M&SI of non-strategic marine mammal stocks to be a “high level” for purposes of including these stocks in a take reduction plan. Therefore, NMFS is not including any non-strategic marine mammal stocks, including the Palmyra Atoll stock, in the scope of this final Plan.
A Status Review for the Hawaii Insular stock (Oleson et al., 2010) used recent, unpublished abundance estimates for two time periods, 2000-2004 and 2006-2009 in their Population Viability Analysis (PVA). Two separate estimates for 2006-2009 were presented in the Status Review, 151 (coefficient of variation, or CV=0.20; the CV is a measurement of the variation in the data, and is calculated as the ratio of the standard deviation to the mean) and 170 (CV=0.21), depending on whether animals photographed near Kauai are included in the estimate (Baird, unpublished data). As the animals seen near Kauai have now been associated with the NWHI stock (Baird et al., 2012), the best estimate of population size is taken as the smaller estimate (Carretta et al., 2012a). However, it should be noted that even this smaller estimate may be an overestimate, because missed matches were discovered after the mark-recapture analyses were complete (discussed in Oleson et al., 2010; Carretta et al., 2012a).
The minimum population estimate for the Hawaii Insular stock of false killer whales is the number of distinct individuals identified during the 2008-2011 photo-identification studies, which is 129 false killer whales (Baird, Hawaii insular false killer whale catalog; Carretta et al., 2012a). No data are available on current or maximum net productivity rate for this stock. 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).
The MMPA, section 3(20) defines PBR as the “maximum number of animals, excluding natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” PBR is calculated 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 (129) times one half the default maximum net growth rate for cetaceans (one half of 4 percent) times a recovery factor of 0.1, resulting in a PBR of 0.3 false killer whales per year, as of the draft 2012 SAR (Carretta et al., 2012a). The recovery factor reported in the SAR (Carretta et al., 2012a) was chosen to be 0.1 because the stock has been proposed for listing as endangered under the U.S. Endangered Species Act and because of the significant recent decline experienced by this stock (Oleson et al. 2010).
An abundance survey of the U.S. EEZ around Hawaii (Hawaiian Islands Cetacean and Ecosystem Assessment Survey, or HICEAS) was completed in 2010 and resulted in five on-effort detections of false killer whales attributed to the Hawaii Pelagic stock. Recent analysis of the 2010 shipboard line-transect survey resulted in an abundance estimate of 1,503 (CV=0.66) false killer whales (Bradford et al., 2012) outside of 40 km (22 nm) of the MHI. Behavioral observations and assessment of the line-transect detection function indicate that false killer whales are attracted to the survey vessel (Bradford et al., 2012). The abundance estimate has not been corrected for vessel attraction and is considered an over-estimate of population abundance. The acoustic data collected during the 2010 survey are still being analyzed such that additional refinements to this estimate are expected. A 2005 survey (Barlow and Rankin, 2007) resulted in a separate abundance estimate of 906 (CV = 0.68) false killer whales in international waters south of the U.S. EEZ around Hawaii and within the U.S. 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 2010 abundance estimate for the U.S. EEZ around Hawaii outside of 40 km (22 nm) from the MHI (Bradford et al., 2012) is 906 false killer whales. This Nmin has not been corrected for vessel attraction and may be an over-estimate of minimum population size. 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 calculated only within the U.S. 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 for the high seas where this stock also occurs. The PBR level for the Hawaii Pelagic stock of false killer whale is thus calculated as the minimum population size within the U.S. EEZ around Hawaii (906) times one half the default maximum net growth rate for cetaceans (one half of 4 percent) times a recovery factor of 0.5 (for a stock of unknown status with the CV of the M&SI rate in the U.S. EEZ around Hawaii equal to 0.3; Wade and Angliss, 1997), resulting in a PBR of 9.1 false killer whales per year, as of the draft 2012 SAR (Carretta et al., 2012a).
The total observed M&SI of cetaceans in the shallow-set longline fishery (with 100 percent observer coverage) and the estimated annual and 5-year average M&SI of cetaceans in the deep-set longline fishery (based on approximately 20 percent observer coverage) are reported by McCracken (2011). The methodology includes prorating all estimated incidental takes of false killer whales and observed takes for which an injury severity determination could not be made, based on the proportions of observed interactions that resulted in death or serious injury (93 percent), or non-
Based on these bycatch analyses, estimates of annual and 5-year average annual incidental M&SI of false killer whales, by stock and U.S. EEZ area, are presented in the draft 2012 SAR (Carretta et al., 2012a). The estimate for the Hawaii Pelagic stock occurring
Incidental M&SI of the Hawaii Pelagic and Hawaii Insular stocks of false killer whales in the Hawaii-based longline fisheries is known to exceed the stocks' PBR levels (Carretta et al., 2012a). The short-term goal of the FKWTRP is to reduce, within six months of its implementation, M&SI of the Hawaii Pelagic and Hawaii Insular stocks of false killer whales incidental to the Hawaii-based longline fisheries occurring within the U.S. EEZ around Hawaii to less than the stocks' PBR levels of 9.1 and 0.3 false killer whales per year, respectively (Carretta et al., 2012a).
The Hawaii Pelagic stock is a transboundary stock that inhabits waters both within and outside of the U.S. 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 U.S. 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 U.S. 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 better understand the impacts of false killer whale incidental takes on the high seas. However, these information gaps do not affect the Hawaii Pelagic false killer whale stock's designation as “strategic” (i.e., the level of human-caused mortality exceeds the stock's PBR level; 16 U.S.C. 1362(19)(A)). 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 U.S. EEZ to the high seas, a goal of the FKWTRP is that incidental M&SI of the high seas component of the Hawaii Pelagic stock does not increase above current levels (i.e., 11.2 false killer whales per year, as of the draft 2012 SAR, Carretta et al., 2012a).
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 and Hawaii Insular stocks of false killer whales to insignificant levels approaching a zero mortality and serious injury rate (i.e., less than 10 percent of their respective PBR levels), as determined under 50 CFR 229.2.
The final FKWTRP includes both regulatory and non-regulatory measures, as well as a suite of research recommendations. While the primary focus of the FKWTRP involves the Hawaii-based deep-set longline fishery, there are measures and research that apply to other fisheries known or suspected to interact with false killer whales.
NMFS believes the suite of 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 Team 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 incorporated nearly all of the Team's consensus recommendations from the Draft FKWTRP into the proposed and final FKWTRP, with some modifications. Changes from the Team's consensus recommendations are noted, along with the rationale for any changes. The Team also discussed other mitigation and conservation measures that were not included in their consensus recommendations for various reasons (e.g., did not meet MMPA goals). Information on these can be reviewed in the Draft FKWTRP (FKWTRT, 2010). Finally, the Team made additional recommendations regarding the shortline and kaka line fisheries, other fisheries, and foreign fisheries that are outside the scope of this rulemaking. Those recommendations are not part of this final FKWTRP, but may be informative for future Team deliberations. Those detailed recommendations can be found in section 8.4 of the Draft FKWTRP (FKWTRT, 2010).
NMFS issues the following FKWTRP regulatory measures under MMPA authority:
1. Require the use of circle hooks that have a maximum wire diameter of 4.5 mm (0.177 in), 10 degree offset or less, containing round (non-flattened) wire that can be measured with a caliper or other appropriate gauge in the Hawaii-based deep-set fishery;
2. Establish a minimum 2.0 mm (0.079 in) diameter for monofilament leaders and branch lines, and a minimum breaking strength of 400 pounds (181 kg) for any other material used in the construction of a leader or branch line in the Hawaii-based deep-set longline fishery;
3. Establish a longline exclusion zone around the MHI that is closed to longline fishing year-round; the 282,796 km
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” (SEZ) that will 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 U.S. EEZ around Hawaii.
Additionally, under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), NMFS is revising the regulations in 50 CFR 665.806 prescribing the existing MHI longline fishing prohibited area by removing the seasonal boundary change. This action will align the boundaries of the MHI longline prohibited area with those of the prohibited area established under this FKWTRP, and is necessary to ensure that existing regulations applicable to the management of the longline fishery are consistent with the requirements of the FKWTRP and the MMPA (see measure 3. above).
These measures are more fully described below.
Wire diameter is one characteristic of a hook that contributes to its strength. During the development of the Draft and proposed FKWTRPs, NMFS and the Team understood that the “standard” wire diameter of circle hooks used in the deep-set fishery was 4.5 mm (0.177 in), based on the information available at that time. Based on this understanding, the Team concluded that the use of circle hooks of 4.0 mm (0.157 in) or 4.2 mm (0.165 in) would provide even greater conservation benefits, because a false killer whale may be able to more easily straighten and release itself from a weaker hook, possibly resulting in less serious injuries. The Team recommended the required use of circle hooks with a maximum wire diameter of 4.0 mm (0.157 in), if a new research study was conducted and showed that the weaker hooks had no significant negative impacts on the retention of target species catch. If the analysis demonstrated that the use of 4.0 mm (0.157 in) hooks will have a substantial impact on tuna catch rates, the Team recommended additional trials to test whether 4.2 mm (0.165 in) hooks would have a substantial impact on tuna catch rates. NMFS, in collaboration with the longline industry and other partners, conducted the research in October-December 2010 and found no significant impact to target catch of circle hooks with wire diameter of 4.0 mm (0.157 in) compared to 4.5 mm (0.177 in) (Bigelow et al., 2011). NMFS did not conduct trials with 4.2 mm (0.165 in) hooks. The Team's recommendations and the results of the study formed the basis of NMFS' proposed requirement that the wire diameter of circle hooks in the deep-set longline fishery must not exceed 4.0 mm (0.157 in).
Two significant issues regarding the wire diameter requirement were raised during the public comment period. First, commenters and Team members emphasized that the Bigelow et al. (2011) study was not adequate to determine the potential effects of the weak hooks in the deep-set fishery. Specifically, commenters noted that the study was not conducted during the time of year when the largest bigeye tuna are historically caught, and the fish caught during the study period were substantially smaller than fish caught during that same time frame in previous years. Thus, they argued, the study was not able to confirm that larger bigeye tuna could be retained on the 4.0 mm (0.157 in) wire diameter hooks. Follow-up analysis by Bigelow (2012) confirmed the seasonality effect of size and value of bigeye tuna in the fishery. Based on these findings, NMFS does not have sufficient data to determine whether the proposed weak hooks would have a significant impact on target catch throughout the year.
Second, NMFS received new information during the public comment period that indicates that the use of 4.5 mm (0.177 in) wire diameter circle hooks in the deep-set fishery is not as widespread as was first believed during the development of the Team's recommendations and NMFS' proposed FKWTRP, and therefore is not representative of an industry “standard.” NMFS confirmed this information by contacting major hook suppliers for the deep-set fishery. Information was obtained for approximately 80 percent of the vessels in the deep-set fishery. Only an estimated 20 percent of those vessels are believed to be using size 15/0 or smaller circle hooks with wire diameter of 4.5 mm (0.177 in) or less; the remaining 80 percent are believed to be using circle hooks with a larger wire diameter (e.g., size 16/0 circle hooks with 4.7 mm (0.185 in) or 5.0 mm (0.197 in) wire
The Team's consensus recommendation was that while “standard” circle hooks (14/0, 15/0, 16/0; 4.5mm wire diameter) alone will likely help reduce M&SI compared to tuna and J hooks, weaker than standard circle hooks (i.e., those with a smaller wire diameter, such as 4.0 mm (0.157 in) or 4.2mm (0.165 in)) would provide even greater conservation benefits. We agree. However, as indicated above, the Team's recommendation was based on the assumption at the time that the standard diameter in use by the industry was 4.5 mm (0.177 in), rather than the more commonly used 4.7 mm (0.185 in) or 5.0 mm (0.197 in). Accordingly, while we agree with the Team's findings, NMFS will require a fleet-wide shift to 4.5 mm (0.177 in) wire diameter for circle hooks, so as to achieve a comparable reduction in hook wire diameter based on the corrected information.
In summary, NMFS has insufficient information to support the required use of circle hooks with 4.0 mm (0.157 in) wire diameter at this time. In response to information received or obtained during the public comment period, NMFS is revising the regulations to specify a maximum wire diameter of 4.5 mm (0.177 in). NMFS believes this requirement will provide a conservation benefit by reducing false killer whale serious injuries because the weaker hook is more easily straightened to release the animal. NMFS also believes that this reduction in wire diameter from the 4.7 mm (0.185 in) or 5.0 mm (0.197 in), used by an estimated 80% of the industry, to 4.5 mm most closely approximates the recommendation of the Team and the proposed FKWTRP after accounting for updated information on the hook wire diameters in the industry.
This new regulation will be codified in the take reduction plan regulations at 50 CFR Part 229, rather than 50 CFR 665.813 as proposed. NMFS has consolidated all FKWTRP regulations in 50 CFR part 229 to more clearly reflect the authority under which the regulations have been promulgated.
Observer data indicate that monofilament used in leaders and branch lines may break during marine mammal hookings and entanglements, which causes animals to be released with often substantial amounts of gear still attached. According to the criteria NMFS uses to determine injury severity, small cetaceans released with gear attached that has the potential to wrap around pectoral fins/flippers, peduncle, or head; be ingested; or accumulate drag would be considered seriously injured (NMFS Policy Directive PD 02-238). The Team believes that if the fishery used leaders and branch lines that were strong relative to the hook strength, during a marine mammal hooking or entanglement, fishermen could place tension on the line to allow the animal to straighten the hook without breaking the branch line. Or, fishermen could bring the animal close to the vessel for disentanglement and/or de-hooking attempts without breaking the branch line. Therefore the Team recommended and NMFS is requiring that any monofilament line used in branch lines or leaders in the deep-set fishery 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 branch lines or leaders must have a breaking strength of 400 pounds (181 kg) or greater. The intent of this measure is that the gear be assembled and maintained such that the hook is the weakest component of the terminal tackle. It is expected that this regulation will reduce the number of false killer whale serious injuries.
This new regulation is added to the take reduction plans at 50 CFR Part 229, rather than 50 CFR 665.813 as proposed. NMFS has consolidated all FKWTRP regulations in 50 CFR part 229 to more clearly reflect the authority under which the regulations have been promulgated.
An existing longline exclusion zone prohibits longline fishing year-round around the MHI (50 CFR 665.806(a)(2)). The exclusion zone was created in 1992 to prevent gear conflicts between longline fisheries and pelagic troll and handline fisheries (57 FR 7661, March 2, 1992). The outer extent of the boundary changes 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
The seasonally open area is within the area of overlap between the Hawaii Insular and Hawaii Pelagic stocks of false killer whales as defined in the draft 2012 SAR (Carretta et al., 2012a), and incidental M&SI of false killer whales and blackfish in the longline fisheries has been documented there. Given that longline fishing in this area may impact both false killer whale stocks, the Team recommended that NMFS designate the seasonally open area as a “Northern Exclusion Zone” (NEZ), and close it to commercial longline fishing year-round. Such a closure would effectively maintain the current boundary of the February-September longline exclusion zone prohibitions throughout the entire year.
NMFS proposed to implement the Team's recommendation by revising the existing longline exclusion zone regulations to eliminate the seasonal change in the boundary, rather than establishing a separate NEZ closure area. NMFS received public comments on this proposed change, including: (a) Confusion over the legal authority used to make the change (i.e., MSA vs. MMPA); (b) concern that the different regulatory purposes of the original closure (gear conflict) and the proposed closure (false killer whale conservation) are not clear; and (c) concern that including the closure only in 50 CFR part 665 and not in FKWTRP regulations at 50 CFR part 229 could allow future changes to the closure for fishery management purposes that would obviate the risk reduction necessary for false killer whales. See comments/responses 3-5 and 38-41
In this final rule NMFS is establishing a Main Hawaiian Islands Longline Fishing Prohibited area (Figure 1) in FKWTRP regulations at 50 CFR part 229, bounded by the same coordinates as the existing February-September longline exclusion zone. Longline fishing within this area is prohibited year-round. This regulation makes it clear that the entire Longline Fishing Prohibited Area around the MHI, not just the seasonally open area to the north of the MHI, is important for false killer whale conservation. It is anticipated that this closure will substantially reduce the risk that the deep- and shallow-set longline fisheries pose to the Hawaii Insular stock of false killer whales, because longline fishing is now prohibited from the Hawaii Insular stock's entire “core” range and a large portion of the stock's “extended” range. It is also expected to eliminate incidental M&SI of the Hawaii Pelagic stock of false killer whales by longline fisheries in that area.
As previously indicated, the MHI Longline Fishing Prohibited Area was established in 50 CFR 665.806(a) under MSA authority. NMFS is using its authority under MSA section 305(d) to revise the existing regulations in 50 CFR 665.806(a)(2) for the MHI Longline Fishing Prohibited Area to eliminate the seasonal boundary change. This action is necessary to ensure that fisheries management regulations remain consistent with all applicable laws and regulations, including MMPA and the FKWTRP regulations.
The Team 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 Team that 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 Team recommended that NMFS expand the existing Protected Species Workshops, required under 50 CFR 665.814, to incorporate additional information regarding marine mammal interactions.
NMFS is implementing the Team's recommendation, as proposed. Under existing regulations for western Pacific pelagic fisheries (50 CFR 665.814,
To ensure that the marine mammal component is maintained by regulation as part of the workshops, NMFS is adding the requirement for certification to the take reduction plan regulations at 50 CFR part 229, under MMPA authority.
The Team recommended, and NMFS is requiring, that all longline vessels in the Hawaii-based fleet must post a NMFS-approved marine mammal handling and release informational placard onboard in a location where it would be visible to the captain and crew. NMFS believes this action will facilitate the careful handling and release of marine mammals incidentally hooked or entangled during longline fishing, including false killer whales, other small cetaceans, and large whales. This requirement is specified in the take reduction plan regulations at 50 CFR part 229.
As noted above (see “
At the Team's recommendation, NMFS developed a placard that instructs the vessel crew to notify the captain immediately if a marine mammal is hooked or entangled. The Team recommended, and NMFS is requiring, that all longline vessels in the Hawaii-based fleet must post this NMFS-approved placard onboard in a location where it would be visible to the crew. It is expected that this measure will 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 “
In this final rule, NMFS is establishing a “Southern Exclusion Zone” (SEZ) that will 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 U.S. EEZ around Hawaii within a given fishing year. NMFS considered and rejected the use of final, annual extrapolated M&SI estimates because of the risk that PBR would be exceeded in a given fishing year once those estimates became available. By using observed incidental M&SI, NMFS will be able to make real-time management decisions concerning the fishery to close the SEZ if incidental M&SI exceeds PBR in any given year, and prevent further exceedance.
The SEZ is bounded on the east at 154° 30′ W. longitude, on the west at 165° W. longitude, on the north by the MHI Longline Fishing Prohibited Area and the Papahanaumokuakea Marine National Monument, and on the south by the U.S. EEZ boundary (Figure 1). The SEZ covers 386,122 km
NMFS received public comments raising numerous issues with the proposed SEZ provisions (see comments/responses 42-65). Several commenters urged NMFS to reconsider implementing the SEZ measures recommended by the Team, as described in the Draft FKWTRP (FKWTRT, 2010). In response to these comments and in developing this final rule, NMFS reevaluated the Team's recommendations, particularly in light of the newly calculated PBR for the Hawaii Pelagic stock in the draft 2012 SAR (Carretta et al., 2012a). The Team originally recommended a trigger for closing the SEZ that was the greater of two values: (1) Two observed false killer whale serious injuries or mortalities in the deep-set fishery inside the U.S. EEZ around Hawaii; or (2) the number of observed false killer whale serious injuries or mortalities inside the U.S. EEZ around Hawaii that, when extrapolated based on the percentage observer coverage for that year, is greater than PBR (FKWTRT, 2010). The triggers were designed to be flexible to a changing PBR once new abundance estimates became available and if there were future changes to PBR. NMFS considered the Team's recommended minimum trigger of two observed M&SI, and was concerned that it may not achieve adequate reductions in M&SI, as required under MMPA section 118. The recommended minimum trigger of two observed M&SI (which roughly extrapolates to 10 M&SI fleet-wide per year with 20 percent observer coverage) would have allowed PBR (2.5 at the time the Draft FKWTRP was developed and the proposed FKWTRP was published), to be exceeded by a factor of four before a consequence closure of the SEZ. This was not consistent with MMPA section 118 requirements that the Plan should be effective in reducing M&SI to below PBR, and eventually to insignificant levels, even when considered together with other measures in the Plan.
In the proposed rule, NMFS proposed modifications to the Team's recommended SEZ trigger to address the issue of PBR exceedance. We recognized that, given the PBR of 2.5, even a single
Public comments raised several issues with the proposed SEZ trigger. The primary concern was that levels of M&SI below the “initial” trigger level could exceed PBR, in single years but particularly across consecutive years, without triggering closure of the SEZ. Commenters also noted that the “initial” trigger is based on the PBR value at the time the trigger was set, but the trigger for the subsequent four years of the five-year timeframe (1 observed mortality or serious injury) cannot be changed even if PBR were to change during those four years.
In developing this final rule, NMFS considered options for modifying the SEZ measures to address issues raised in public comments. As part of this process, NMFS reevaluated the Team's recommended trigger, particularly in light of the new PBR of 9.1 for the Hawaii Pelagic stock, as calculated in the draft 2012 SAR (Carretta et al., 2012a). We note that our initial concerns regarding the Team's minimum trigger have been addressed by the larger PBR value. That is, the Team's recommended minimum trigger of two observed M&SI (which extrapolates to an estimated 10 M&SI fleet-wide based on 20 percent observer coverage) would result in closure of the SEZ immediately after the observed mortality or serious injury that caused PBR to be exceeded. NMFS considers this an appropriate consequence for exceeding PBR and preventing further PBR exceedance.
In this final rule, NMFS is implementing an SEZ measure that more closely conforms to the Team's consensus recommendations described in the Draft FKWTRP (FKWTRT, 2010). In doing so, we remain concerned that the Team's recommendation might not adequately protect false killer whales under all factual scenarios if PBR were to be lower, for reasons explained above (i.e., the minimum trigger of two observed M&SI was too large, and would have allowed potentially high levels of PBR exceedance without a consequence closure of the SEZ). A reduced PBR for the Hawaii Pelagic stock is possible in the future, particularly to account for the survey's vessel attraction effect, as more fully discussed in the draft 2012 SAR (Carretta et al., 2012a). Accordingly, NMFS will continue to evaluate and consult with the Team on refinements to the SEZ trigger/closure that help respond to potential changes in PBR. If future refinements are necessary, they will be implemented by appropriate rulemaking.
The following paragraphs describe steps NMFS will take when determining whether to prohibit deep-set longline fishing in the SEZ. There are different procedures depending on whether there was a closure of the SEZ in the previous year. These steps closely approximate those outlined by the Team in the Draft FKWTRP.
NMFS is specifying the trigger definition in the FKWTRP regulations and establishing the trigger value for this first year of FKWTRP implementation as two observed false killer whale mortalities or serious injuries by the deep-set longline fishery within the U.S. EEZ around Hawaii. This trigger value (two) will remain valid until NMFS publishes a new trigger value in the
There are three important considerations regarding the trigger calculations. First, the extrapolated estimates of false killer whale M&SI described in this section are calculated for purposes of implementing the SEZ only, and do not represent the official bycatch estimates for false killer whales in the fishery. The official bycatch estimates are calculated by separate methods and are presented in the annual SARs. Second, as the Team recommended and NMFS proposed, the trigger applies only to the Hawaii Pelagic stock of false killer whales given the stock's strategic status and the location of the closure. Although the Hawaii Insular stock is also strategic, closure of the SEZ would have very little effect on the stock because the SEZ is almost entirely outside the Hawaii Insular stock's range. For the purposes of implementing SEZ measures, any false killer whale incidentally taken inside the U.S. EEZ around Hawaii is assumed to be part of the Hawaii Pelagic stock, unless the animal could be positively identified as belonging to the Hawaii Insular stock through photo-identification or genetic analysis of a tissue sample. This is true even of false killer whales taken in the Hawaii Pelagic/Insular stock overlap zone. Those animals would be prorated for assignment to the stocks in the official bycatch estimates, but for purposes of implementing the SEZ, the animals cannot be prorated. Third, only observed serious injuries or mortalities would be counted toward the trigger, while injuries determined to be non-serious would not. The expedited process for serious injury determinations is described below (see “
i. M&SI below the trigger. After each false killer whale mortality or serious
ii. M&SI that meets the trigger. If there is an observed false killer whale mortality or serious injury in the deep-set longline fishery inside the U.S. EEZ around Hawaii that meets the established trigger for a given fishing year, NMFS will close the SEZ until the end of that calendar year, and then convene the Team for a meeting. NMFS would reopen the SEZ at the beginning of the next calendar year. The availability of funding may limit NMFS' ability to convene the Team for an in-person meeting; however, NMFS would convene the Team by teleconference or other efficient means until funding becomes available for an in-person meeting. Regardless of whether NMFS has convened an in-person Team meeting, NMFS would reopen the SEZ at the beginning of the next year.
If a closure of the SEZ is triggered, NMFS will notify the fishery and close the area for the specified time period (the rest of the calendar year) through a
iii. M&SI after the SEZ is closed. Additional mortalities or serious injuries of false killer whales in the deep-set longline fishery in the U.S. 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 U.S. EEZ around Hawaii, then NMFS would again convene the Team to discuss the circumstances of the event and consider the effectiveness of the SEZ closure and the overall FKWTRP. The Team may be convened by teleconference or other efficient means.
i. M&SI below the trigger. Consistent with the procedures in step b. above, after each false killer whale mortality or serious injury in the deep-set longline fishery inside the U.S. EEZ around Hawaii that is below the established trigger in a given fishing year, NMFS will notify the Team. Following the last mortality or serious injury before the trigger is met, NMFS will also convene the Team by teleconference to discuss the circumstances of the event. For example, if the trigger were three, NMFS would notify the Team of the first mortality or serious injury, and would convene the Team by teleconference after the second observed mortality or serious injury.
ii. M&SI that meets the trigger. If there is an observed false killer whale mortality or serious injury in the deep-set longline fishery inside the U.S. EEZ around Hawaii that meets the established trigger for a given fishing year, NMFS will close the SEZ, and then convene the Team for an in-person meeting. NMFS would reopen the SEZ if specific criteria were met (see step d. below). The availability of funding may limit NMFS' ability to convene the Team for an in-person meeting; NMFS may convene the Team by teleconference or other efficient means until funding becomes available for an in-person meeting.
If a closure of the SEZ is triggered, NMFS will notify the fishery and close the area through a
i. NMFS determines, after considering the Team's recommendations and all relevant circumstances that continued closure of the SEZ is not warranted, or otherwise does not serve the objectives of the FKWTRP. Such circumstances might include: The mortality or serious injury was a result of non-compliance with gear requirements, rather than an indication that the existing FKWTRP measures were ineffective; evidence of increased M&SI in other areas, for example, in areas outside the SEZ but within the U.S. EEZ around the Hawaiian Archipelago, or on the high seas in close proximity to the EEZ; evidence of increased interactions with other protected species outside the SEZ; etc.;
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 M&SI within the remaining open areas of the U.S. 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 M&SI (including the U.S. EEZ around Hawaii, the high seas, and the U.S. 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 U.S. EEZ around Hawaii to below the stock's PBR at the time of the closure (e.g., if the PBR for the Hawaii Pelagic stock inside the U.S. EEZ around Hawaii was 9.1 at the time of the closure and average annual false killer whale incidental M&SI in the deep-set fishery inside the U.S. EEZ was 13.6, an approximately 33 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 U.S. EEZ around Hawaii for up to the five 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 is including these criteria in regulations. Once NMFS determines that one or more of the criteria was met, NMFS would reopen the SEZ through a
NMFS is implementing the following six non-regulatory measures:
1. Increase the precision of bycatch estimates in the deep-set longline fishery;
2. 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;
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 Team; and
6. Reconvene the Team at regular intervals.
Though these measures are part of the FKWTRP, they do not place requirements on the longline fisheries and are not being implemented through regulations. These non-regulatory measures are more fully described below.
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 Endangered Species Act Biological Opinion on the deep-set longline fishery (NMFS, 2005b). The Team recommended that NMFS increase observer coverage in the deep-set longline fishery to at least a 25 percent average quarterly coverage rate, provided the increase is funded by the Federal government. Following submission of the Team's recommendations, NMFS conducted an analysis to determine the potential benefit of such an overall increase in observer coverage, in terms of how that coverage increase would increase the precision (i.e., decrease the error) of the bycatch estimate in the fishery. The analysis also evaluated the benefit of that error reduction compared to the cost of the observer coverage increase (McCracken and Boggs, 2010). This analysis found diminishing improvement in the precision of the bycatch estimate when moving from 20 to 25 percent overall coverage. NMFS does not believe any incremental improvement in data precision justifies an increase to 25 percent coverage, given limitations on personnel and resources. Therefore, NMFS is not increasing overall observer coverage in the fishery, but may consider changes in future coverage if circumstances warrant.
However, NMFS intends to implement an increase in
The Team 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. Some of this information is currently available through PIROP's quarterly and annual reports, and non-confidential details on each interaction are available in annual reports documenting serious injury determinations. Because this information may be useful for the Team as it considers the success of the management measures and considers amendments, NMFS will 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 Team members for their consideration as soon as practical after the event. NMFS has already begun to implement these changes.