Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 29984-29988 [2010-12916]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 103 (Friday, May 28, 2010)]
[Notices]
[Pages 29984-29988]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12916]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XU10


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Issuance of Permit

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

ACTION:  Notice.

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SUMMARY:  In accordance with the Marine Mammal Protection Act (MMPA), 
NMFS hereby issues a permit for a period of three years to authorize 
the incidental, but not intentional, taking of individuals of the 
Central North Pacific (CNP) stock of endangered humpback whales by the 
Hawaii-based longline fisheries (deep-set and shallow-set). This 
authorization is based on determinations that mortality and serious 
injury of humpback whales incidental to commercial fishing will have a 
negligible impact on the CNP stock of humpback whales, that a recovery 
plan has been developed, that a monitoring program is established, that 
vessels in the fisheries are registered, and that the MMPA does not 
require a take reduction plan (TRP) at this time.

DATES:  This permit is effective for a 3-year period beginning May 28, 
2010.

ADDRESSES:  Reference material for this permit is available on the 
Internet at the following address: https://www.fpir.noaa.gov.
    Copies of the reference materials may also be obtained from the 
Protected Resources Division, NMFS, Pacific Islands Region, 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI, 96814 Attention - Lisa Van 
Atta, Assistant Regional Administrator.

FOR FURTHER INFORMATION CONTACT:  Lisa Van Atta, Pacific Islands Region 
(808) 944-2257 or Tom Eagle, Office of Protected Resources, (301) 713-
2322, ext. 105.

SUPPLEMENTARY INFORMATION:

Background

    MMPA section 101(a)(5)(E) requires NMFS to allow the taking of 
marine mammals from species or stocks listed as threatened or 
endangered under the ESA (16 U.S.C. 1531 et seq.) incidental to 
commercial fishing operations if NMFS determines that: (1) incidental 
mortality and serious injury will have a negligible impact on the 
affected species or stock; (2) a recovery plan has been developed or is 
being developed for such species or stock under the ESA; and (3) where 
required under section 118 of the MMPA, a monitoring program has been 
established, vessels engaged in such fisheries are registered in 
accordance with section 118 of the MMPA, and a take reduction plan has 
been developed or is being developed for such species or stock.
    On February 24, 2010 (75 FR 8305), NMFS proposed to issue a permit 
under

[[Page 29985]]

MMPA section 101(a)(5)(E) to vessels registered in the Hawaii-based 
longline fisheries (deep-set and shallow-set) to incidentally take 
individuals from the CNP stock of humpback whales, which are listed as 
endangered under the Endangered Species Act (ESA). The Hawaii-based 
longline fisheries do not take other species or stocks of threatened or 
endangered marine mammals; therefore, no other species or stocks were 
considered for this permit. There has been one serious injury (in 2006) 
of a CNP humpback whale in the Hawaii-based shallow-set longline 
fishery.
     No other mortality or serious injury of humpback whales has been 
recorded incidental to the longline fishery (a single fishery under 
MMPA section 118 from 1994 until 2004, and separated into shallow-set 
and deep-set fisheries since 2004) since 1994. Consequently, 
authorization only for harassment and non-lethal injury of humpback 
whales is necessary incidental to the deep-set longline fishery. The 
proposed permitted lethal (serious injury or mortality) taking of CNP 
humpback whales incidental to the Hawaii-based longline fisheries was 
limited to the shallow-set fishery. Although humpback whales are taken 
incidental to fisheries in Alaskan, as well as Hawaiian, waters the 
proposed permit was limited to the Hawaii-based longline fisheries. 
Alaska-based fisheries will be addressed in a future permitting 
procedure.

Determinations for the Permit

    The following determinations and supporting information were 
included in notice of the proposed permit (75 FR 8305, February 24, 
2010). As described in detail in the documentation for the negligible 
impact determination (see ADDRESSES), NMFS estimated that mortality and 
serious injury of CNP humpback whales incidental to commercial fishing 
operations in HI and AK totaled 5.4 whales per year, which is 26.5 
percent of the stock's Potential Biological Removal (PBR) level. NMFS 
concluded that incidental mortality and serious injury at this total 
rate will have a negligible impact on CNP humpback whales.
    A recovery plan for humpback whales has been in place since 
November 1991. Accordingly, a recovery plan for humpback whales, 
including the CNP stock, has been developed.
    An observer program is in place for the Hawaii-based longline 
fisheries. The shallow-set fishery has 100 percent observer coverage. 
The deep-set fishery has at least 20 percent observer coverage. These 
observer levels are required under the ESA to protect threatened or 
endangered sea turtles taken incidental to longline fishing operations 
for Pacific pelagic species of fish. Furthermore, participants in the 
fishery are required to hold a Federal permit for fishing, and 
registration under MMPA section 118(c) has been integrated into the 
fishery permitting process. Accordingly, NMFS determines that, as 
required by MMPA section 118, a monitoring program is established for 
these fisheries and that vessels engaged in such fisheries are 
registered in accordance with such section.
    The purpose of a TRP is to reduce mortality and serious injury 
incidental to commercial fisheries, and only Category I or II fisheries 
are subject to take reduction requirements. Observer reports since 1994 
confirm that there have been no serious injuries or mortalities of a 
CNP humpback whale in the Hawaii-based deep-set longline fishery. 
Recent levels of mortality in the shallow-set fishery (0.2 whales per 
year) are insignificant and average less than 1 percent of the PBR of 
the CNP humpback whale stock. As a result of the current data, both the 
deep-set and shallow-set fisheries would be listed in the List of 
Fisheries as Category III fisheries, but for the higher level of taking 
of other marine mammals, not listed under the ESA. Finally, MMPA 
section 118(f) provides that if there is insufficient funding available 
to develop and implement a take reduction plan for stocks that interact 
with commercial Category I and II fisheries, the Secretary shall give 
highest priority to the development of TRP's for species or stocks 
whose level of incidental mortality and serious injury exceeds PBR, 
those that have small population size, and those that are declining 
most rapidly. NMFS has evaluated availability of TRT funding for the 
humpback whale under the statutory criteria and determined that there 
is insufficient funding available for a TRT. Accordingly, NMFS 
determines that a TRP is not required by MMPA section 118 at this time. 
(See response to Comment 9.)
    The National Environmental Policy Act (NEPA) requires Federal 
agencies to evaluate the impacts of alternatives for their actions on 
the human environment. NMFS and the Western Pacific Fishery Management 
Council (Council) have analyzed the impacts of fishing operations, 
including the deep-set and shallow-set longline fisheries on the human 
environment. The current permit does not modify fishing operations; 
therefore, the analyses included in two recent Environmental Impact 
Statements (EIS) issued by NOAA evaluate the impacts of issuing the 
current permit. The Council and NMFS completed the Final Supplemental 
EIS for Amendment 18 to the Fishery Management Plan for Pelagic 
Fisheries of the Western Pacific Region in March 2009, and the 
Assistant Administrator for Fisheries (AA) signed the Record of 
Decision for this action on June 17, 2009. The Council and NMFS also 
completed a Final Programmatic EIS toward an Ecosystem Approach for the 
Western Pacific Region: From Species-Based Fishery Management Plans to 
Place-Based Fishery Ecosystem Plans in September 2009, and the AA 
signed the Record of Decision for this action on December 11, 2009. 
Because this permit does not modify any fishery operation and the 
effects of the fishery operations have been evaluated fully in 
accordance with NEPA, no additional NEPA analysis is required for this 
permit.
    Section 7 of the ESA requires NMFS to consult with itself when 
agency actions may affect threatened or endangered marine species, 
including marine mammals. NMFS has evaluated numerous actions related 
to implementation of fishery management plans for pelagic species by 
Hawaii-based fisheries, including the deep-set and shallow-set longline 
fisheries. The two most recent biological opinions (BiOp) related to 
deep-set and shallow-set longline fisheries are (1) BiOp and Incidental 
Take Statement on the Continued Authorization of the Hawaii-based 
Pelagic, Deep-set, Tuna Longline Fishery Based on the Fishery 
Management Plan for Pelagic Fishing of the Western Pacific Region, 
October 4, 2005; and (2) BiOp on Management Modifications for the 
Hawaii-based Shallow-set Longline Swordfish Fishery Implementation of 
Amendment 18 to the Fishery Management Plan for the Pelagic Fisheries 
of the Western Pacific Region, October 15, 2008. NMFS reviewed these 
BiOps and information related to issuing the permit and have concluded 
that issuing the permit would not modify the activities of the fishery 
nor the effects of these fishing activities on ESA-listed species, 
including humpback whales, in a manner that would cause adverse effects 
not previously evaluated and that there has been no new listing of 
species or designation of critical habitat that could be affected by 
the action. Accordingly, no additional analyses under the ESA are 
required at this time.

Current Permit

    NMFS has made determinations under MMPA section 101(a)(5)(E) that 
(1) mortality and serious injury of CNP humpback whales incidental to

[[Page 29986]]

commercial fishing will have a negligible impact on the stock, (2) a 
recovery plan for humpback whales has been developed, (3) as required 
by MMPA section 118, a monitoring program has been established in the 
Hawaii-based longline fisheries, and vessels in the fishery are 
registered, and (4) no TRP is required by MMPA section 118 to reduce 
mortality and serious injury of CNP humpback whales incidental to 
Hawaii-based longline fisheries. As required by MMPA section 
101(a)(5)(E), NMFS hereby issues a permit to vessels in the Hawaii-
based longline fisheries (deep-set and shallow-set) authorizing the 
taking of CNP humpback whales incidental to fishing operations. Taking 
of humpback whales incidental to the deep-set fishery is limited to 
non-lethal taking (harassment and injury). Taking of these whales 
incidental to the shallow-set fishery includes harassment and non-
serious injury, as well as serious injury and mortality. If NMFS 
determines at a later date that incidental mortality and serious injury 
from commercial fishing is having more than a negligible impact on the 
CNP stock of humpback whales, NMFS may use its emergency authority 
under MMPA section 118 to protect the stock and may modify the permit 
issued herein.
    MMPA section 101(a)(5)(E) requires NMFS to publish in the Federal 
Register a list of fisheries that have been authorized to take 
threatened or endangered marine mammals. A list of such fisheries was 
published, as required, on October 26, 2007 (72 FR 60814), which 
authorized the taking of threatened or endangered marine mammals to one 
Category I and two Category III fisheries along the west coast of the 
U.S. With issuance of the current permit, NMFS adds the Hawaii-based 
deep-set and shallow-set longline fisheries to this list (Table 1).

  Table 1. List of Fisheries Authorized to Take Threatened and Endangered Marine Mammals Incidental to Fishing
                                                   Operations.
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                  Fishery                           Category                      Marine Mammal Stock
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CA/OR Drift Gillnet Fishery                                       I                                 Fin whale, CA/OR/WA stock
                                                                                      Humpback whale, ENP stock
                                                                                                  Sperm whale, CA/OR/WA stock
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CA lobster, prawn, shrimp, rock crab, fish                      III                                 Fin whale, CA/OR/WA stock
 pot                                                                                  Humpback whale, ENP stock
                                                                                                  Sperm whale, CA/OR/WA stock
----------------------------------------------------------------------------------------------------------------
WA/OR/CA crab pot                                               III                                 Fin whale, CA/OR/WA stock
                                                                                      Humpback whale, ENP stock
                                                                                                  Sperm whale, CA/OR/WA stock
----------------------------------------------------------------------------------------------------------------
HI deep-set (tuna target) longline/set                            I                            Humpback whale, CNP stock
 line
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HI shallow-set (swordfish target) longline/                      II                            Humpback whale, CNP stock
 set line
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    NMFS received letters containing comments from four organizations, 
the Marine Mammal Commission (Commission), the Hawaii Longline 
Association (HLA), the Council, and the Human Society of the United 
States (HSUS). Each letter contained multiple comments.
    Comment 1: The Commission briefly summarized NMFS' findings for the 
proposed permit and recommended that NMFS comply with MMPA section 
101(a)(5)(E) by issuing the permit to the Hawaii-based deep-set and 
shallow-set longline fisheries to authorize the taking of CNP humpback 
whales incidental to their fishing operations.
    Response: NMFS agrees and is issuing the permit as required by the 
MMPA.
    Comment 2: The Commission noted that NMFS is currently conducting a 
status review of humpback whales under the ESA and recommended that 
NMFS reexamine the findings related to this permit if the status review 
indicates a new stock structure and factors that may compromise the 
conservation of those stocks.
    Response: NMFS agrees to re-evaluate these findings if the status 
review indicated a new stock structure modifying the current CNP 
humpback whale stock.
    Comment 3: HLA supported issuance of the proposed permit and 
supporting documentation. HLA's rationale for its support included the 
following:
    (1) Abundance of the CNP stock has substantially recovered from 
depressed levels resulting from commercial whaling, noting that the 
estimated annual rate of increase is 7 percent;
    (2) Mortality and serious injury of the stock is less than the 
stock's PBR, and there has been no detectable adverse impact on the 
growth and recovery of the stock;
    (3) Interactions between the Hawaii-based longline fisheries and 
the CNP stock are ``extremely rare events;
    (4) There has been no observed mortality or serious injury of 
humpback whales incidental to the deep-set fishery and only a single 
observed interaction of a humpback whale with this fishery since 2004 
with observer coverage of 20 percent; and
    (5) There has been only one observed serious injury of a humpback 
whale in the shallow-set fishery only one interaction of any kind 
observed in this fishery with100 percent observer coverage since 2004.
    Response: NMFS agrees that the available information supports the 
finding of negligible impact required by MMPA section 101(a)(5)(E).
    Comment 4: HLA stated that NMFS used a worst case analysis for the 
negligible impact analysis and cited a decision by the Supreme Court 
(Bennett v. Spear, 520 U.S. 154, 176-77 (1997)) related to the ESA. HLA 
also asserted that NMFS' analysis implementing MMPA section 
101(a)(5)(E) reflects exactly the kind of zealous, but misguided, 
conservation bias that the definition of ``negligible impact'' and the 
``best science'' requirements proscribe.
    Response: NMFS disagrees that the negligible impact analysis is a 
worst case analysis and that the analysis is inconsistent with the 
MMPA. NMFS maintains that the finding was based upon appropriate levels 
of precaution. Although NMFS used a ``worst case''

[[Page 29987]]

estimate of abundance to calculate PBR for this stock (see Allen and 
Angliss, 2010 Alaska Marine Mammal Stock Assessment Reports (SAR), 
2009, NOAA Tech. Mem. NMFS-AFSC-206.), NMFS also acknowledged in the 
SAR and in the negligible impact determination for this permit that 
mortality may have been underestimated (minimum estimate). Estimates of 
mortality and serious injury were based upon strandings and 
observations of entangled or injured free-swimming humpback whales, and 
such data sources may be underestimates because not all entangled or 
injured whales are observed, identified to source, and recorded.
    HLA incorrectly applies court rulings under the ESA to agency 
findings under the MMPA. In the original passage of the MMPA, the 
associated House of Representatives Report stated the burden for 
permits as follows: ``Before any marine mammal may be taken, the 
appropriate Secretary must first establish general limitations on the 
taking, and must issue a permit which would allow that taking. In every 
case, the burden is placed upon those seeking permits to show that the 
taking should be allowed and will not work to the disadvantage of the 
species or stock of animals involved. If that burden is not carried and 
it is by no means a light burden the permit may not be issued. The 
effect of this set of requirements is to insist that the management of 
the animal populations be carried out with the interests of the animals 
as the prime consideration.'' (House of Representatives Report No. 92-
707, December 4, 1971)
    For the provisions of MMPA section 101(a)(5)(E), the associated 
House of Representatives Report stated that ``These permits may extend 
for a maximum of three years and may be issued only if the Secretary 
determines that the total of such [incidental to commercial fishing] 
taking will have a negligible impact on the species or stock . The 
Committee notes that the ``negligible impact'' standard in the MMPA is 
more stringent than the ``no jeopardy'' standard in the ESA, and 
consequently provides more protection for endangered or threatened 
marine mammals under the MMPA than under the ESA.'' (House of 
Representatives Report No. 103-439, March 21, 1994). Thus, a 
precautionary evaluation under the MMPA is appropriate.
    In this determination, NMFS evaluated uncertainties in abundance 
and in mortality and serious injury, considered the increase in 
population size in using Criterion 3 (PBR rather than 10 percent of the 
stock's PBR) rather than the more stringent Criterion 1 (10 percent of 
PBR), in concluding that mortality and serious injury of CNP humpback 
whales incidental to commercial fishing was having a negligible impact 
on the population (see History of Applying Negligible Impact in 
Fisheries above). Accordingly, NMFS maintains that the negligible 
impact determination contains an appropriate level of precaution as 
required by the MMPA. (Also, see Comment 8 and associated response.)
    Comment 5: The Council supported issuance of the proposed permit, 
noted that the Hawaii-based deep-set longline fishery had only 1 to 2 
non-fatal interactions with humpback whales, noted that only one 
humpback whale had been observed seriously injured in the shallow-set 
longline fishery, and expressed that it was perplexed why NMFS waited 
so long to make a determination and issue a permit for taking CNP 
humpback whales incidental to HI-based longline fishing.
    Response: NMFS acknowledges the Council's support for this permit. 
The delay in issuing this permit was related to several factors. First, 
a basin-wide abundance estimate was in progress as part of a large 
international study of humpback whales, and this basin-wide estimate 
had to be partitioned by stocks recognized under the MMPA. Second, as 
noted in the response to Comment 4, the requisite negligible impact 
determination must include the effect of the total mortality and 
serious injury of CNP humpback whales incidental to commercial fishing 
rather than incidental to the Hawaii-based fisheries only. Most 
mortality and serious injury has been documented in Alaska rather than 
Hawaii, this mortality had to be evaluated and reconciled among several 
documents, and fishery-caused mortality and serious injury had to be 
evaluated in the context of other human-related sources of mortality 
and serious injury (due to the comparison to PBR, which includes 
consideration of all removals other than natural mortalities). Third, 
staffing limitations required conservation activities with the Pacific 
Islands Region to be address in priority order, with activities 
directed toward species or stocks most at risk receiving highest 
priority.
    Comment 6: The Council also noted that the CNP humpback population 
is increasing, which could result in more interactions with the HI 
longline fleet. For this reason, NMFS must now consider providing the 
HI-based deep-set fishery a permit including lethal as well as non-
lethal taking.
    Response: NMFS disagrees that permitting lethal takes incidental to 
the deep-set longline fishery is appropriate at this time. Despite 
continued population growth in the CNP stock of humpback whales, the 
long history of no documented lethal taking and of very few takings of 
any kind suggests the potential for increased mortality and serious 
injury incidental to the deep-set fishery, despite population growth 
over the 3-year duration of the MMPA permit, is minimal.
    Comment 7: HSUS noted that NMFS included an incorrect Internet 
address for the supporting negligible impact determination in the 
notice of the proposed permit and located a draft negligible impact 
determination dated February 2010. HSUS noted the determination should 
be final before issuing a permit to a fishery.
    Response: NMFS acknowledges that the Internet address in the notice 
of the proposed permit was incorrect and that HSUS and three other 
organizations were able to locate the draft negligible impact 
determination. The negligible impact determination was available in 
draft form because the MMPA requires that such a determination be 
completed after public review and comment. Accordingly, NMFS made the 
draft available so that the public had the opportunity to provide 
additional information or insights before making a final determination. 
The final negligible impact determination will be released concurrent 
with issuance of the permit.
    Comment 8: NMFS used a minimum estimate of mortality and serious 
injury in its finding that mortality and serious injury of CNP 
humpbacks incidental to commercial fishing is having a negligible 
impact on the stock. HSUS noted that the take of large endangered 
whales in most fisheries is generally under-represented by fisher self-
reports or limited observer coverage; that NMFS did not include 
entanglements observed in Hawaii in the 2009 SAR for the CNP stock of 
humpback whales, upon which the negligible impact determination was 
based. Furthermore, large whales may become entangled in gear and break 
free with gear attached; however, NMFS did not include information on 
the percentage of trips where there are reports of lost gear.
    Response: NMFS acknowledged (in the negligible impact determination 
and within the SAR) that the estimate of mortality and serious injury 
is considered a minimum estimate. The extent of lost fishing gear was 
not reported because it is not available for most fisheries; 
furthermore, gear may be lost due to many factors other than large 
whale entanglements.
    For several reasons, the finding of negligible impact is reasonable 
in spite

[[Page 29988]]

of the potential for underestimating mortality and serious injury. 
First, PBR is based upon conservative estimates of abundance and Rmax 
and has a recovery factor of 0.1. Second, the PBR approach was 
thoroughly tested in simulation trials and found to be robust to over-
estimates of Rmax, underestimates of mortality, and low precision of 
abundance and mortality estimates. Finally, the annual rate of increase 
of the stock observed in Hawaii is reported in the SAR to be 7 percent. 
Accordingly, in spite of all factors, human-caused (including 
commercial fisheries) and natural, that may be affecting humpback 
whales in the North Pacific Ocean, this stock is increasing rapidly. 
For these reasons, NMFS maintains that the negligible impact 
determination is based upon reasonable precaution. (Also, see Comment 4 
and the associated response.)
    Comment 9: HSUS stated that NMFS wrongly claims that the 
obligations to develop and implement a TRP are subject to the 
availability of funding. Rather, the MMPA requires NMFS to develop and 
implement a TRP for each strategic stock of marine mammals that 
interacts with fisheries that have frequent (Category I) or occasional 
(Category II) incidental mortality and serious injury of marine 
mammals. Further, MMPA section 101(a)(5)(E) clearly requires that a TRP 
regardless of what priority NMFS assigns its development must be in 
existence before incidental take may be authorized. If NMFS cannot 
develop or, at least initiate development of, a TRP because it lacks 
funding, it cannot authorize incidental take. It would be a simple 
matter for NMFS to convene a working group of the existing Take 
Reduction Team (TRT) for false killer whales, which includes the 
Hawaii-based longline fisheries, to recommend measures to reduce 
likelihood of interactions with humpbacks.
    Response: The CNP stock of humpback whales is strategic. The 
Hawaii-based longline fisheries are Category I (deep-set fishery) and 
Category II (shallow-set fishery). Moreover, the List of Fisheries for 
2009 and 2010 noted that CNP stock of humpback whales was the marine 
mammal species or stock for which the shallow-set fishery had 
occasional mortality and serious injury.
    However, NMFS' analysis of the MMPA requirements and the available 
information does not support developing a TRP for humpback whales. The 
CNP stock of humpback whales is strategic because humpback whales were 
listed as an endangered species under the ESA due to the effects of 
commercial whaling that ceased before the MMPA was passed. Current 
human-caused mortality of CNP humpback whales is negligible, 
particularly mortality and serious injury resulting from longline 
fishing.
    MMPA 118(f)(2) provides that the goal of a TRP for a strategic 
stock is reduce within 6 months of implementation the serious injury 
and mortality in the course of commercial fishing operations to levels 
less than PBR. The long-term goal of the plan is to reduce, within 5 
years of its implementation, the incidental mortality and serious 
injury in the course of commercial fishing operations to insignificant 
levels approaching a zero mortality and serious injury rate. Not only 
does the best available information indicate that neither the deep-set 
nor shallow-set longline fishery incidentally kills or seriously 
injures humpback whales at levels that would require a TRP to be 
developed and implemented. The 2009 SAR for the CNP stock of humpback 
whales, which became available after the 2010 LOF was prepared, shows 
that there is no mortality and serious injury of humpback whales 
incidental to the deep-set longline fishery, and the PBR for the stock 
is 20.4. Information discussed in the notice of the proposed permit and 
negligible impact determination shows that mortality and serious injury 
of CNP humpback whales incidental to the shallow-set longline fishery 
(0.2 whales per year) is less than 1 percent of the PBR of the stock.
    Also, MMPA section 118(f) provides that if there is insufficient 
funding available to develop and implement a take reduction plan for 
stocks that interact with commercial Category I and II fisheries, the 
Secretary shall give highest priority to the development of TRP's for 
species or stocks whose level of incidental mortality and serious 
injury exceeds PBR, those that have small population size, and those 
that are declining most rapidly. NMFS has evaluated availability of TRT 
funding for the humpback whale under the statutory criteria and 
determined that there is insufficient funding available for a TRT. 
Accordingly NMFS concludes that MMPA section 118 does not require a TRP 
to address mortality and serious injury of CNP humpback whales 
incidental to either the deep-set or shallow-set longline fishery at 
this time.
    A TRP for CNP humpback whales is a low priority, and MMPA section 
118 does not require a TRP in this case. However, NMFS considered, as 
HSUS suggested, including humpback whales within the scope of the TRP 
being developed for false killer whales. NMFS is aware that 
interactions between odontocetes, including false killer whales, and 
these Hawaii-based longline fisheries appear related to depredation of 
bait or catch in the fisheries. Humpback whale entanglement is more 
likely due to accidental encounters with fishing gear than depredation. 
Accordingly, NMFS concluded that including humpback whales within the 
scope of the TRP would likely detract from the focus of the TRP, which 
is to reduce mortality and serious injury of false killer whales 
incidental to the deep-set longline fishery.

    Dated: May 24, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-12916 Filed 5-27-10; 8:45 am]
BILLING CODE 3510-22-S