Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Issuance of Permit, 62105-62117 [2014-24567]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Notices]
[Pages 62105-62117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24567]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD269


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 three 
stocks of marine mammals listed as threatened or endangered under the 
Endangered Species Act (ESA) by vessels involved in the Hawaii deep-set 
and shallow-set longline fisheries: the endangered humpback whale, 
(Megaptera novaeangliae), Central North Pacific stock; sperm whale, 
(Physeter macrocephalus), Hawaii stock; and false killer whale, 
(Pseudorca crassidens), Main Hawaiian Islands insular false killer 
whale (MHI IFKW) stock.

DATES: This permit is effective for a three-year period beginning 
October 16, 2014.

ADDRESSES: Reference material for this permit, including the negligible 
impact determination (NID) and a list of references cited in this 
notice, is available on the Internet at the following address: https://www.fpir.noaa.gov/DIR/dir_public_documents.html. Recovery plans for 
these species are available on the Internet at the following address: 
https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals. Information on 
the False Killer Whale Take Reduction Plan is available on the Internet 
at the following address: https://www.fpir.noaa.gov/PRD/prd_FKW_take_reduction_team.html. Copies of the reference materials may 
also be obtained from the NMFS Pacific Islands Regional Office, 
Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, 
HI 96818.

FOR FURTHER INFORMATION CONTACT: Dawn Golden, NMFS Pacific Islands 
Region, (808) 725-5144, or Shannon Bettridge, NMFS Office of Protected 
Resources, (301) 427-8402.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA), 16 
U.S.C. 1361 et seq., states that NOAA's National Marine Fisheries 
Service (NMFS), as delegated by the Secretary of Commerce, shall for a 
period of up to three years allow the incidental taking of marine 
mammal species listed under the Endangered Species Act (ESA), 16 U.S.C. 
1531 et seq., by persons using vessels of the United States and those 
vessels which have valid fishing permits issued by the Secretary in 
accordance with section 204(b) of the Magnuson-Stevens Fishery 
Conservation and Management Act, 16 U.S.C. 1824(b), while engaging in 
commercial fishing operations, if NMFS makes certain determinations. 
NMFS must determine, after notice and opportunity for public

[[Page 62106]]

comment, that: (1) Incidental mortality and serious injury (M&SI) 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. NMFS has made a determination that 
incidental taking from commercial fishing will have a negligible impact 
on the endangered humpback whale, (Megaptera novaeangliae), Central 
North Pacific (CNP) stock; sperm whale, (Physeter macrocephalus), 
Hawaii stock; and false killer whale, (Pseudorca crassidens), MHI IFKW 
stock. Recovery plans have been completed for humpback and sperm 
whales, and a recovery plan has been initiated for MHI IFKW.
    On June 12, 2014 (79 FR 33726), NMFS proposed to issue a permit 
under MMPA section 101(a)(5)(E) to vessels registered in the Hawaii 
deep-set longline fishery to incidentally take individuals from three 
stocks of threatened or endangered marine mammals: The CNP stock of 
humpback whales, the Hawaii stock of sperm whales, and the MHI IFKW; 
and to vessels registered in the Hawaii shallow-set longline fishery to 
incidentally take individuals from the CNP stock of humpback whales. 
The data for considering these authorizations were reviewed coincident 
with the preparation of the 2014 MMPA List of Fisheries (LOF or List) 
(79 FR 14418, March 14, 2014), the 2013 marine mammal stock assessment 
reports (SARs) (Carretta et al. 2014; Allen and Angliss 2014), recovery 
plans for humpback and sperm whales, the False Killer Whale Take 
Reduction Plan (FKWTRP), and other relevant sources. In addition, we 
have also considered more recent data for false killer whales that have 
not yet been incorporated into the marine mammal SARs, and a predictive 
model that seeks to anticipate future fisheries interactions based on 
recent changes to the fishery (the modified longline exclusion zone, 
and gear modifications) that were implemented through the FKWTRP.
    The vessels operating in the Hawaii deep-set and the shallow-set 
longline fisheries are in the ranges of affected stocks and are 
currently considered for authorization. A detailed description of these 
fisheries can be found below. The Hawaii deep-set longline fishery is 
the only Category I fishery under the MMPA operating around Hawaii. The 
Hawaii shallow-set longline fishery is a Category II fishery; all other 
Category II fisheries that may interact with the marine mammal stocks 
observed off the coast of Hawaii are state-managed and are not 
considered for authorization under this permit. Participants in 
Category III fisheries are not required to obtain incidental take 
permits under MMPA section 101(a)(5)(E) but are required to report 
injuries or mortalities of marine mammals incidental to their 
operations.

Basis for Determining Negligible Impact

    As described above, prior to issuing a permit to take ESA-listed 
marine mammals incidental to commercial fishing, NMFS must determine if 
M&SI incidental to commercial fisheries will have a negligible impact 
on the affected species or stocks of marine mammals. NMFS satisfied 
this requirement through completion of a negligible impact 
determination (see ADDRESSES). NMFS clarifies that incidental M&SI from 
commercial fisheries includes M&SI from entanglement or hooking in 
fishing gear. See the NID for more detailed information.
    Although the MMPA does not define ``negligible impact,'' NMFS has 
issued regulations providing a qualitative definition of ``negligible 
impact'' for small take authorizations as defined in 50 CFR 216.103 
and, through scientific analysis, peer review, and public notice, 
developed a quantitative approach applied here, as ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival'' (50 CFR 216.103). The development of the approach and 
process was outlined in detail in the final NID and was included in 
previous notices for other permits to take threatened or endangered 
marine mammals incidental to commercial fishing (72 FR 60814, October 
26, 2010 for the CNP stock of humpback whales).

Criteria for Determining Negligible Impact

    In 1999, NMFS adopted criteria for making negligible impact 
determinations for MMPA 101(a)(5)(E) permits (64 FR 28800; May 27, 
1999). The 1999 negligible impact criteria are non-binding guidance and 
do not limit NMFS' discretion to take into account additional relevant 
information in determining a fishery's expected impacts on a particular 
marine mammal stock. In applying the 1999 criteria to determine whether 
M&SI incidental to commercial fisheries will have a negligible impact 
on a listed marine mammal stock, Criterion 1 (total human-related M&SI 
is less than 10% of the potential biological removal level (PBR)) is 
the starting point for analysis. If this criterion is satisfied (i.e., 
total human-related M&SI is less than 10% of PBR), the analysis would 
be concluded, and the impact would be determined to be negligible. If 
Criterion 1 is not satisfied, NMFS may use one of the other criteria as 
appropriate. Criterion 2 is satisfied if the total human-related M&SI 
is greater than PBR, but fisheries-related M&SI is less than 10% of 
PBR. If Criterion 2 is satisfied, vessels operating in individual 
fisheries may be permitted if management measures are being taken to 
address non-fisheries-related M&SI. Criterion 3 is satisfied if total 
fisheries-related M&SI is greater than 10% of PBR and less than 100% 
PBR, and the population is stable or increasing. Fisheries may then be 
permitted subject to individual review and certainty of data. Criterion 
4 stipulates that if the population abundance of a stock is declining, 
the threshold level of 10% of PBR will continue to be used. Under 
Criterion 5, if total fisheries-related M&SI is greater than PBR, there 
is no negligible impact finding.
    The time frame for this analysis primarily includes the most recent 
5-year period for which available data have been processed and 
incorporated into a SAR (January 1, 2007 through December 31, 2011). 
The NMFS Guidelines for Assessing Marine Mammal Stocks (GAMMS) and the 
subsequent GAMMS II provide guidance that, when available, the most 
recent 5-year time frame of commercial fishery incidental serious 
injury and mortality data is an appropriate measure of effects of 
fishing operations on marine mammals (Wade and Angliss 1997). A 5-year 
time frame generally provides enough data to adequately capture year-
to-year variations in take levels, while reflecting current 
environmental and fishing conditions as they may change over time.

Negligible Impact Determinations

    The final NID provides a complete analysis of the criteria for 
determining whether commercial fisheries off Hawaii are having a 
negligible impact on the stocks of CNP humpback whales, Hawaii sperm 
whales, and MHI IFKW. A summary of the analysis and subsequent 
negligible impact determinations follows.

[[Page 62107]]

Criterion 1 Analysis

    Criterion 1 would be satisfied if the total human-related M&SI is 
less than 10% of PBR. The 5-year (2007-2011) annual average M&SI to the 
Hawaii stock of sperm whales from all human-caused sources is 0.7 
animals, which is 6.89% of this stock's PBR of 10.2 (i.e., below the 
10% of PBR threshold). Since the beginning of the NMFS Hawaii longline 
observer program in 1995, no deaths of sperm whales have been 
attributed to the Hawaii deep-set or shallow-set longline fishery. 
However, in 2011 a sperm whale was reported seriously injured (prorated 
as 0.75 serious injury) after interacting with the Hawaii deep-set 
longline fishery. Two other interactions with sperm whales in 1999 and 
2002 were considered non-serious injuries. Based on this low likelihood 
of interactions, considered together with the lack of impacts of other 
commercial fisheries and other human-caused impacts, Criterion 1 has 
been met for the Hawaii stock of sperm whales. Therefore, NMFS 
determines that M&SI incidental to commercial fisheries will have a 
negligible impact on the Hawaii stock of sperm whales.
    The 5-year (2007-2011) annual average M&SI of the CNP stock of 
humpback whales from all human-caused sources is 16.2 animals, which is 
26.74% of this stock's PBR of 61.2 (i.e., above the 10% of PBR 
threshold). The total annual human-related M&SI for this stock of 
humpback whales is not less than 10% of PBR for the time frame 
considered.
    The 5-year (2007-2011) annual average M&SI of the MHI IFKW stock 
from all human-caused sources is estimated to be 0.1 animals, which is 
33.3% of this stock's PBR of 0.3 (i.e., above the 10% of PBR 
threshold). The total annual human-related M&SI for this stock of false 
killer whales is not less than 10% of PBR for the time frame 
considered.
    Therefore, Criterion 1 was not satisfied for the CNP humpback and 
MHI IFKW because the total annual human-related M&SI for each of these 
two stocks is not less than 10% of PBR for each stock for the time 
frame considered. As a result, other criteria must be examined for the 
CNP humpback and MHI IFKW stocks.

Criterion 2 Analysis

    Criterion 2 would be satisfied if the total human-related M&SI is 
greater than PBR, but fisheries-related M&SI is less than 10% of PBR. 
This criterion was not satisfied for either the CNP humpback or the MHI 
IFKW because while total human-related M&SI (detailed above) is 
believed to be less than 100% PBR for each stock, total fisheries-
related M&SI (detailed below) is greater than 10% PBR for each stock 
for the time frame analyzed.

Criterion 3 Analysis

    Unlike Criteria 1 and 2, which examine total human-caused M&SI 
relative to PBR, Criterion 3 compares total fisheries-related M&SI to 
PBR. Criterion 3 would be satisfied if the total commercial fisheries-
related M&SI (including state and federal fisheries) is greater than 
10% of PBR and less than 100% PBR for each stock for the time frame 
considered, and the populations of these stocks are considered to be 
stable or increasing. Additionally, Criterion 3 acknowledges that there 
are reasons for individually reviewing fisheries if M&SI are above PBR, 
including considering information regarding any increases in permitted 
M&SI and any uncertainties with regard to population size, reproductive 
rates, and fisheries-related mortalities. If Criterion 3 is met, 
permits may be issued subject to review and certainty of data.
    The total fishery-related M&SI from all commercial fisheries for 
the CNP humpback stock is estimated at 9.35 animals, or 15.3% of the 
PBR (of 61.2) for the 5-year average from 2007-2011. This is greater 
than 10% of PBR (6.1 animals) and less than 100% PBR (61.2 animals). 
The CNP humpback whale stock has a minimum population size of 7,469 and 
is estimated to be growing at a rate of up to 7% per year. A total of 
0.75 humpback whales (prorated, based on NMFS' 2012 Policy on 
Distinguishing Serious from Non-serious Injuries) were observed, 
estimated, or assumed to have been either killed or seriously injured 
in the two fisheries considered in this authorization during the 2007-
2011 time period. Accordingly, Criterion 3 is satisfied for the time 
frame analyzed (2007-2011). Therefore, we determine that M&SI of the 
CNP humpback whale stock incidental to commercial fishing is having a 
negligible impact on the stock because of individual review of data 
regarding the stock, including increased growth rate of the stock, 
limited increases in M&SI due to the relevant fisheries, and the level 
of fisheries-related M&SI is below the calculated PBR.
    With regard to false killer whales, NMFS recognizes three stocks of 
false killer whales (Hawaii pelagic, MHI insular, and Northwestern 
Hawaiian Islands stocks) to be at risk of interacting with Hawaii 
longline gear. Of the three stocks, only the MHI IFKW is ESA-listed. 
For the Hawaii longline fisheries considered in this analysis, no MHI 
IFKW deaths have been observed since the NMFS Hawaii longline observer 
program began in 1995. From 2004-2012, observers recorded three false 
killer whale interactions in the deep-set longline fishery and no false 
killer whale interactions in the shallow-set longline fishery in the 
MHI IFKW range. In the deep-set longline fishery, observers also 
recorded three interactions with unidentified blackfish, which are 
unidentified cetaceans known to be either a false killer whale or a 
short-finned pilot whale. Genetic sampling and photo identification are 
currently the only ways to distinguish MHI IFKWs from the other stocks, 
and these data were not collected from the animals involved in these 
interactions. In certain locations, the ranges of the MHI IFKW and 
pelagic false killer whales overlap. When the stock identity of a false 
killer whale hooked or entangled by the longline fisheries within the 
MHI IFKW/pelagic stock overlap zone cannot be determined, NMFS prorates 
the interaction to either the pelagic or MHI insular stock using a 
model that assumes that densities of MHI insular stock animals decrease 
and pelagic stock densities increase with increasing distance from 
shore (McCracken 2010).
    Based on an analysis conducted for this NID, including the 
expansion from observed interactions to an estimate of fleet-wide 
interactions based on the fishery's total effort and the proration of 
blackfish and false killer whales of unknown stock identity (MHI IFKW 
versus pelagic), we estimate that a total of 8.73 interactions occurred 
with MHI IFKWs in the deep-set longline fishery from 2004-2013, 
including both serious and non-serious injuries. This estimate 
potentially overestimates the fishery's actual impact on MHI IFKW, 
since the proration model does not account for the Northwestern 
Hawaiian Islands false killer whale stock that was identified in 2011. 
For example, in 2012 two observed false killer whale interactions 
occurred in the area where all three Hawaiian false killer whales 
stocks overlap, but at this time they can only be attributed (prorated) 
to the pelagic or MHI insular stocks. In addition, earlier interaction 
estimates are based on a much smaller abundance estimate for the 
pelagic false killer whale stock which influences the proration model 
and values.
    Criterion 3 states that, where total fisheries-related M&SI are 
greater than 10% PBR and less than 100% PBR, and the population is 
stable or increasing, a permit may be issued subject to

[[Page 62108]]

individual review and certainty of data. As described below, NMFS 
considered multiple data sets and other information in conducting this 
analysis and applying Criterion 3. First, the current PBR for the MHI 
IFKW is 0.3, and M&SI is estimated to be 0.1 based upon data from 2007-
2011. These data underwent NMFS and Pacific Scientific Review Group 
(PSRG) review, were made available for public review and comment, and 
are available in the published 2013 final SAR (Caretta et al. 2014). In 
April, 2014 NMFS provided more recent data estimating abundance, 
calculating a PBR, and estimating M&SI for MHI IFKW in the deep-set 
fishery (the 2008-2012 timeframe) to the PSRG for review; they are 
described in the final NID (see ADDRESSES). Although the 2008-2012 
analyses consider more recent data with regard to MHI IFKW and previous 
interactions with the fishery (compared to the 2007-2011 data presented 
in the 2013 SAR), they do not take into account recent changes in the 
fishery required by the FKWTRP (or Plan) regulations, nor are they 
intended to anticipate future interactions in a changed fishery. In 
2010, NMFS convened the False Killer Whale Take Reduction Team (FKWTRT 
or Team), composed of commercial fishery representatives, conservation 
groups, scientists, the Marine Mammal Commission, state and federal 
officials, and other interested stakeholders, to prepare and propose a 
consensus take reduction plan that, when implemented by regulations, is 
expected to reduce longline fishery impacts on pelagic and MHI IFKWs to 
levels below PBR within six months and to insignificant levels 
approaching a zero M&SI rate (10% of PBR) over five years.
    NMFS published the FKWTRP on November 29, 2012 (77 FR 71260) to 
reduce the M&SI of Hawaii pelagic and MHI IFKWs in Hawaii's longline 
fisheries. Measures within the Plan include gear modifications in the 
deep-set longline fishery to reduce the seriousness and frequency of 
injuries, reporting and captain training requirements, and area 
closures, including the closure of the IFKW stock's core range to 
longline fishing year-round. Specifically, the FKWTRP includes 
regulatory and non-regulatory measures, including: The required use of 
weak circle hooks, a minimum diameter for monofilament leaders and 
branch lines, extension of the Main Hawaiian Islands Longline Fishing 
Prohibited Area, annual training in mitigation techniques, 
establishment of a Southern Exclusion Zone and triggers for closure, 
and monitoring and reporting requirements. Most of the FKWTRP's 
regulations went into effect on December 31, 2012, but gear 
requirements for the deep-set longline fishery went into effect on 
February 27, 2013. The measures have been in place for less than two 
years, and their effectiveness is still being evaluated.
    The Team is expected to meet at least annually to review the 
effectiveness of the Plan and may recommend to NMFS additional measures 
or changes to the Plan when warranted. NMFS anticipates that continued 
implementation of the FKWTRP regulations will ensure that reduced rates 
of fisheries-related M&SI of MHI IFKWs are maintained in the deep-set 
longline fishery. Monitoring and reporting requirements under the 
FKWTRP provide NMFS with the information necessary to prevent and 
respond to any unexpected impacts. Moreover, NMFS retains its authority 
under MMPA section 118(g) to issue emergency regulations and approve 
amendments to the FKWTRP, in consultation with the Team, where M&SI is 
having an immediate and significant adverse impact. If it is determined 
that the anticipated reductions in M&SI are not being met, data 
indicate that the population trajectory is declining, or the FKWTRP is 
otherwise not meeting its objectives, NMFS, in consultation with the 
False Killer Whale Take Reduction Team, will utilize its authority to 
amend the FKWTRP regulations as necessary to ensure that the 
requirements of the MMPA are met. Additionally, under such 
circumstance, the NID would be re-evaluated pursuant to section 
101(a)(5)(E)(iii), (iv), and (v) of the MMPA (16 U.S.C. 
1371(a)(5)(E)(iii), (iv), and (v)).
    While estimates of M&SI of MHI IFKW from longline fishing in the 
2013 SARs (0.1 for 2007-2011) are currently below PBR (0.3), NMFS 
recognizes that more recent data estimating M&SI for MHI IFKW in this 
fishery (the 2008-2012 timeframe), although not yet publically 
reviewed, preliminarily indicate that M&SI of MHI IFKW in this fishery 
may be exceeding PBR. However, as explained above, these data do not 
contemplate the significant measures taken within the Plan, which are 
anticipated to reduce the deep-set longline fishery's impacts, one of 
the major, known historical threats to this population, to reduce M&SI 
to levels below PBR within six months and to insignificant levels 
approaching a zero M&SI rate (i.e., 10% of PBR) over five years.
    With these measures in mind, NMFS conducted a more recent analysis 
of the likely effects of the Plan in reducing M&SI of MHI IFKW 
(McCracken 2014). Aware that interactions with the deep-set longline 
fishery within the range of the MHI IFKW stock were observed in 2012, 
NMFS considered the 2008-2012 data in the NID analysis and included 
these data in its analysis used to predict future levels of take in 
this fishery. This analysis indicates that future annual M&SI for the 
MHI IFKWs will remain at or below the stock's PBR level, based on 
expected levels of longline fishing effort and upon implementation of 
the measures within the Plan (McCracken 2014).
    Regarding the population trend, although MHI IFKW abundance is 
believed to have declined markedly during the 1990s, at this time, the 
current population trajectory is unknown (Oleson et al. 2010). 
Nevertheless, NMFS acknowledges the need for more reliable information 
regarding stock trajectory, but notes that this uncertainty, along with 
the presence of substantial observer coverage in this fishery, was 
considered in the Team's deliberations and in the adoption of the 
specific measures for minimizing the impact of the fishery on IFKWs. As 
such, NMFS believes that the measures in place, coupled with the FKWTRT 
process, provide a meaningful, adaptive management tool with which to 
quickly monitor, identify, and respond to any unanticipated longline 
fishery impacts to the MHI IFKW population.
    NMFS acknowledges that interactions with non-longline fisheries may 
be occurring, and continues to work cooperatively with the State of 
Hawaii and other partners to assess marine mammal interactions in 
state-managed fisheries. NMFS will continue to consult with the Hawaii 
Department of Land and Natural Resources to improve data collection in 
these fisheries.
    To summarize, Criterion 3 is satisfied if total fisheries related 
M&SI is greater than 10% of PBR and less than 100% PBR, and the 
population is stable or increasing. Fisheries may then be permitted 
subject to individual review and certainty of data. The current PBR for 
the MHI IFKW is 0.3, while estimates of M&SI from longline fishing are 
a fraction below PBR (i.e., between 10% and 100% of PBR). While 
estimates of M&SI of MHI IFKW from longline fishing in the 2013 SAR 
(2007-2011) are currently below PBR, NMFS recognizes that more recent 
data estimating M&SI for MHI IFKW in this fishery (the 2008-2012 
timeframe), although not yet publically reviewed, preliminarily 
indicate that M&SI of MHI IFKW in this fishery may be exceeding PBR. 
NMFS considered the 2008-2012 data in the

[[Page 62109]]

NID and included these data in its analysis used to predict future 
levels of take in this fishery. This analysis indicates that future 
annual M&SI for the MHI IFKW will remain at or below the stock's PBR 
level, based on expected levels of longline fishing effort and upon 
implementation of the measures within the Plan. Although NMFS has 
historic information of a larger IFKW population, it does not currently 
have sufficient information with which to reliably determine whether 
the current population is stable or increasing. NMFS acknowledges the 
need for more reliable information regarding stock trajectory, but 
notes that this uncertainty, along with the presence of substantial 
observer coverage in this fishery, was considered in the FKWTRT's 
deliberations and in the adoption of the specific measures for 
minimizing the impact of the fishery on IFKWs. NMFS retains its 
authority under MMPA section 118(g) to issue emergency regulations and 
approve amendments to the FKWTRP, in consultation with the FKWTRT, 
where M&SI is having an immediate and significant adverse impact. 
Additionally, under such circumstance, the NID would be re-evaluated 
pursuant to section 101(a)(5)(E)(iii), (iv), and (v) of the MMPA (16 
U.S.C. 1371(a)(5)(E)(iii), (iv), and (v)). Accordingly, NMFS is 
satisfied that under the FKWTRT process, the longline fishery will have 
a negligible impact on the MHI IFKW.
    In conclusion, based on the negligible impact criteria outlined in 
1999 (64 FR 28800), the 2013 Alaska and Pacific SARs (Allen and Angliss 
2014; Carretta et al. 2014), the FKWTRP, the predictive model, and the 
best scientific information and data available, NMFS has determined 
that for a period of up to three years, M&SI incidental to the Hawaii 
deep-set longline fishery and Hawaii shallow-set longline fishery will 
have a negligible impact on the CNP stock of humpback whales, the 
Hawaii stock of sperm whales, and the MHI insular stock of false killer 
whales. Therefore, vessels operating in these identified commercial 
fisheries within the range of the CNP humpback, Hawaii sperm whale, and 
MHI IFKW stocks may be permitted subject to their individual review and 
the certainty of relevant data, and provided that the other provisions 
of section 101(a)(5)(E) are met.

Description of Fisheries

    The Hawaii deep-set and shallow-set longline fisheries are the 
Federally-authorized fisheries classified as Category I and II in the 
2014 LOF (NMFS 2014) that are known to seriously injure or kill ESA-
listed marine mammals incidental to commercial fishing operations. 
Detailed descriptions of those fisheries can be found in the Final 
Biological Opinion on the continued operation of the Shallow-set 
Longline Swordfish fishery, dated January 30, 2012 (NMFS 2012a); the 
2013SARs (Carretta et al. 2014, Allen and Angliss 2014); and the final 
NID.
    In accordance with MMPA section 118(c), only those vessels in the 
Hawaii deep-set and shallow-set longline fisheries that have registered 
for a Marine Mammal Authorization Permit are authorized to take marine 
mammals incidental to their fishing operations. Vessels holding this 
permit must comply with the FKWTRP and implementing regulations. The 
longline fisheries are limited access fisheries, with 164 transferable 
permits of which approximately 130 are currently active. Vessels active 
in these fisheries are limited to 101 ft in length. Hawaii-based 
longline vessels vary their fishing grounds depending on their target 
species. Most effort is to the north and south of the Hawaiian Islands 
between the equator and 40[deg] N and longitudes 140[deg] and 180[deg] 
W; however, the majority of deep-set fishing occurs south of 20[deg] N 
and the majority of shallow-set fishing occurs north of 20[deg] N. The 
number of active vessels in the combined Hawaii-based deep-set and 
shallow-set longline fishery increased dramatically in the late 1980s 
and peaked at 141 vessels in 1991. The number of vessels in the 
combined longline fisheries has since ranged from 101 to 130. In 2011, 
129 Hawaii-based longline vessels were active in the deep-set longline 
fishery. The deep-set longline fishery operates year-round, although 
vessel activity increases during the fall and is greatest during the 
winter and spring months. The annual number of trips for the Hawaii-
based longline fisheries has remained relatively stable, but there was 
a shift from mixed-target and swordfish-target trips to tuna-target 
trips from the early 1990s up to 2002. In the years 2000-2003, this 
shift reflected the regulatory closure of the shallow-set and mixed-
target fisheries. In 2004, the shallow-set longline fishery was 
reopened but participation was limited to only six trips. In 2011, 
there were 1,388 combined longline trips (1,306 deep-set and 182 
shallow-set), which resulted in a combined total of 18,623 sets (17,155 
deep-set and 1,468 shallow-set). Effort in the combined longline 
fishery, measured by the number of hooks set, has ranged from 
approximately 39 to 42 million hooks per year from 2007-2011.

Conclusions for Permit

    Based on the above assessment and as described in the accompanying 
NID, NMFS concludes that the incidental M&SI from vessels engaged in 
the Hawaii deep-set and shallow-set fisheries will have a negligible 
impact on the CNP stock of humpback whales, the Hawaii stock of sperm 
whales, and the MHI insular stock of false killer whales. The National 
Environmental Policy Act (NEPA) requires Federal agencies to evaluate 
the impacts of alternatives for their actions on the human environment. 
The impacts on the human environment of continuing the Hawaii deep-set 
and shallow-set longline fisheries, including the taking of threatened 
and endangered species of marine mammals, were analyzed in the 
Regulatory Amendment to the Western Pacific Pelagic Fishery Ecosystem 
Plan: Revised Swordfish Trip Limits in the Hawaii Deep-set Longline 
Fishery to Reduce Regulatory Discards with an Environmental Assessment 
(NMFS and WPFMC 2012); the False Killer Whale Take Reduction Plan 
Environmental Assessment (NMFS 2012b); Amendment 18 to the Pelagics FMP 
and Final SEIS (NMFS and WPFMC 2009); Amendment 7 to the Pelagics FEP 
and Environmental Assessment (NMFS 2014a), and in the Final Biological 
Opinion prepared for the Hawaii shallow-set longline fishery (NMFS 
2012a) and the Final Biological Opinion for the Hawaii deep-set 
longline fishery (NMFS 2014b), pursuant to the ESA. NMFS has prepared a 
record of environmental consideration that concludes that because this 
proposed permit would 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. Issuing 
the proposed permit would have no additional impact to the human 
environment or effects on threatened or endangered species beyond those 
analyzed in these documents.

Recovery Plans

    Recovery Plans for humpback whales and sperm whales have been 
completed (see https://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals). 
A Recovery Plan has been initiated for the MHI IFKW (78 FR 60850, 
October 2, 2013). Accordingly, the requirement to have recovery plans 
in place or being developed is satisfied.

[[Page 62110]]

Vessel Registration

    MMPA section 118(c) requires that vessels participating in Category 
I and II fisheries register to obtain an authorization to take marine 
mammals incidental to fishing activities. Further, section 118(c)(5)(A) 
provides that registration of vessels in fisheries should, after 
appropriate consultations, be integrated and coordinated to the maximum 
extent feasible with existing fisher licenses, registrations, and 
related programs. Registration for the Hawaii longline fisheries has 
been integrated into the existing permit process, and all permitted 
participants in the Hawaii deep-set and shallow-set longline fisheries 
are issued annual Marine Mammal Authorization Program certificates with 
their new or renewed permits. Therefore, vessel registration for an 
MMPA authorization is integrated through those programs in accordance 
with MMPA section 118.

Monitoring Program

    The Hawaii longline fisheries have been observed by NMFS observers 
since the mid-1990s. Levels of observer coverage vary over time but are 
adequate to produce reliable estimates of M&SI of ESA-listed species. 
From 2002-2013, observer coverage was greater than 20% in the deep-set 
longline fishery and has been 100% in the shallow-set longline fishery 
since 2004. Accordingly, as required by MMPA section 118, a monitoring 
program is in place for both fisheries.

Take Reduction Plans

    Subject to available funding, MMPA section 118 requires the 
development and implementation of a Take Reduction Plan (TRP) when a 
strategic stock interacts with a Category I or II fishery. The three 
stocks considered for this permit are currently designated as strategic 
stocks under the MMPA because they are listed as endangered under the 
ESA (MMPA section 3(19)(C)).
    In 2010, NMFS established the FKWTRT to develop a TRP to address 
the incidental M&SI of Hawaii pelagic and MHI IFKWs in the Hawaii-based 
deep-set and shallow-set longline fisheries. The FKWTRP was 
implemented, through regulations, in November 2012 (77 FR 71260). The 
short- and long-term goals of a TRP are to reduce M&SI of marine 
mammals incidental to commercial fishing to levels below PBR within six 
months and to insignificant levels approaching a zero M&SI rate (i.e., 
10% of PBR) within five years. MMPA section 118(b)(2) states that 
fisheries maintaining insignificant levels of M&SI are not required to 
further reduce their M&SI rates.
    The CNP stock of humpback whales and the Hawaii stock of sperm 
whales are also strategic stocks that interact with the Hawaii longline 
fisheries. However, the obligations to develop and implement a TRP are 
subject to the availability of funding. MMPA section 118(f)(3) (16 
U.S.C. 1387(f)(3)) contains specific priorities for developing TRPs 
when funding is insufficient to develop and implement TRPs for all 
strategic stocks and Category I and II fisheries. NMFS has insufficient 
funding available to simultaneously develop and implement TRPs for all 
stocks that interact with Category I or Category II fisheries. NMFS 
used the most recent SARs and LOF as the basis to determine its 
priorities for establishing TRTs and developing TRPs. Through this 
process, NMFS evaluated the Hawaii stock of sperm whales and the CNP 
stock of humpback whales and the Hawaii longline fisheries and 
identified these as lower priorities compared to other marine mammal 
stocks and fisheries for establishing TRTs, based on M&SI levels 
incidental to those fisheries and population levels and trends. 
Accordingly, given these factors and NMFS' priorities, further 
developing TRPs for the Hawaii stock of sperm whale and the CNP stock 
of humpback whales in the Hawaii longline fishery will be deferred 
under section 118 as other stocks/fisheries are a higher priority for 
any available funding for establishing new TRTs.
    As noted in the summary above, all of the requirements to issue a 
permit to vessels that operate in the Federally-authorized Hawaii deep-
set and shallow-set longline fisheries have been satisfied. 
Accordingly, NMFS hereby issues a permit to participants in the 
Category I Hawaii deep-set longline fishery for the taking of CNP 
humpback whales, Hawaii sperm whales, and MHI IFKWs, and to the 
Category II Hawaii shallow-set longline fishery for the taking of CNP 
humpback whales incidental to the fisheries' operations. As noted under 
MMPA section 101(a)(5)(E)(ii), no permit is required for vessels in 
Category III fisheries. For incidental taking of marine mammals to be 
authorized in Category III fisheries, any injuries or mortality must be 
reported to NMFS. 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 humpback whales, Hawaii sperm 
whales, or MHI IFKW stocks, NMFS may use its emergency authority under 
MMPA to protect the stock and may modify the permit issued herein, and 
re-evaluate the NID.
    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 
most recently published on September 4, 2013 (78 FR 54553), which 
authorized the taking of threatened or endangered marine mammals 
incidental to the California thresher shark/swordfish drift gillnet 
fishery and the Washington/Oregon/California sablefish pot fishery. 
With issuance of the current permit, NMFS is not adding any fisheries 
to this list (Table 1).

  Table 1--List of Fisheries Authorized To Take Specific Threatened and Endangered Marine Mammals Incidental to
                                          Commercial Fishing Operations
----------------------------------------------------------------------------------------------------------------
             Fishery                    Category                           Marine mammal stock
----------------------------------------------------------------------------------------------------------------
HI deep-set (tuna target)         I...................  Humpback whale, CNP stock.
 longline.
                                                        Sperm whale, Hawaii stock.
                                                        MHI IFKW stock.
CA thresher shark/swordfish       I...................  Fin whale, CA/OR/WA stock.
 drift gillnet fishery (=14 in mesh).
                                                        Humpback whale, CA/OR/WA stock.
                                                        Sperm whale, CA/OR/WA stock.
HI shallow-set (swordfish         II..................  Humpback whale, CNP stock.
 target) longline/set line.
AK Bering Sea/Aleutian Islands    II..................  Steller sea lion, Western stock.
 flatfish trawl.
AK Bering Sea/Aleutian Island     II..................  Fin whale, NEP stock.
 pollock trawl.
                                                        Steller sea lion, Western stock.
AK Bering Sea sablefish pot.....  II..................  Humpback whale, WNP stock.
                                                        Humpback whale, CNP stock.

[[Page 62111]]

 
AK Bering Sea/Aleutian Islands    II..................  Steller sea lion, Western stock.
 Pacific cod longline fisheries.
WA/OR/CA sablefish pot fishery..  II..................  Humpback whale, CA/OR/WA stock.
AK miscellaneous finfish set      III.................  Steller sea lion, Western stock.
 gillnet.
AK Gulf of Alaska sablefish       III.................  Sperm whale, NP stock.
 longline.
                                                        Steller sea lion, Eastern stock.
AK halibut longline/set line      III.................  Steller sea lion, Western stock.
 (State and Federal waters).
AK Bering Sea/Aleutian Islands    III.................  Steller sea lion, Western stock.
 Atka mackerel trawl.
AK Bering Sea/Aleutian Islands    III.................  Steller sea lion, Western stock.
 Pacific cod trawl.
AK Gulf of Alaska Pacific cod     III.................  Steller sea lion, Western stock.
 trawl.
AK Gulf of Alaska pollock trawl.  III.................  Fin whale, NEP stock.
                                                        Steller sea lion, Western stock.
CA set gill net.................  III.................  None documented.
CA/OR/WA salmon troll...........  III.................  None documented.
WA/OR/CA groundfish, bottomfish   III.................  None documented.
 longline/set line.
WA/OR North Pacific halibut       III.................  None documented.
 longline/set line.
CA halibut bottom trawl.........  III.................  None documented.
WA/OR/CA shrimp trawl...........  III.................  None documented.
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    On June 12, 2014 (79 FR 33726), NMFS proposed to issue a permit 
under MMPA section 101(a)(5)(E) to vessels registered in the Hawaii 
deep-set longline fishery to incidentally take individuals from three 
stocks of threatened or endangered marine mammals: The CNP stock of 
humpback whales, the Hawaii stock of sperm whales, and the MHI insular 
stock of false killer whales; and to vessels registered in the Hawaii 
shallow-set longline fishery to incidentally take individuals from the 
CNP stock of humpback whales. NMFS solicited comments on the proposal 
to issue a permit and the negligible impact determination and received 
comments from the Marine Mammal Commission (Commission); non-
governmental organizations (The Humane Society of the United States 
(HSUS) on behalf of themselves and the National Resources Defense 
Council (NRDC); Earthjustice on behalf of the Center for Biological 
Diversity and Turtle Island Restoration Network; Cascadia Research 
Collective (CRC); the Hawaii Longline Association (HLA)); the Western 
Pacific Regional Fisheries Management Council (Council); and three 
individuals. Most letters contained multiple comments. NMFS received 
comments both in support of and in opposition to the negligible impact 
determination and proposed permit. Two commenters supported the 
determinations for all three species, while several other commenters 
supported the determinations only for humpback whales and sperm whales. 
There were no comments in opposition to the negligible impact 
determinations or issuance of a permit for the incidental take of 
individual CNP humpback whales and Hawaii sperm whales. All comments in 
opposition to the issuance of a permit were specific to the deep-set 
fishery and MHI IFKW. These comments are addressed in detail below.
    Comment 1: HLA asked NMFS to clarify how the agency has applied the 
1999 negligible impact determination criteria, specifically to the MHI 
IFKW stock. HLA also recommended that NMFS explain its consideration of 
future M&SI impacts for MHI IFKW in light of the enactment of the 
FKWTRP regulations.
    Response: NMFS believes that the rate of MHI IFKW M&SI is expected 
to decrease in response to the FKWTRP regulations, based upon a 
predictive model to account for the expected impact of the longline 
fishery on marine mammals. There is only one complete year of data 
since the FKWTRP regulations went into effect, and much of the data 
that have been collected have not yet been fully analyzed (e.g., injury 
determinations, bycatch estimates, etc.). When evaluating the deep-set 
longline fishery's expected impacts on the IFKW, we relied on 
historical M&SI since it represents the best available information, 
recognizing that the data were collected prior to the implementation of 
FKWTRP measures intended to mitigate the fishery's impacts on false 
killer whales. For example, the recently discovered NWHI stock of IFKW 
was not accounted for in historic M&SI estimates, which were 
necessarily prorated only between the MHI insular and pelagic false 
killer whale stocks.
    In preparing its analysis in the predictive model, NMFS took 
several steps to account for the changes under the FKWTRP regulations. 
For example, the predictive model incorporated the revised boundary of 
the MHI Longline Fishing Prohibited Area, and described our expectation 
of further reductions in M&SI due to other FKWTRP measures (gear 
regulations requiring the use of weak circle hooks and strong 
branchlines to allow for the release of the animal with reduced 
trailing gear and risk of injury). We also noted that the model's 
predicted level of M&SI was based on historical interactions that 
occurred in an area that, under the FKWTRP regulations, is now closed 
to longline fishing year-round. At this time, given the defined range 
of the IFKW stock, NMFS cannot conclude that the closure of this 
seasonal boundary will eliminate all risk of future fisheries-related 
M&SI to the stock, but we do believe that future M&SI will be extremely 
rare, on the order of only one animal every four years.
    With regard to NMFS consideration of the 1999 negligible impact 
determination criteria, NMFS utilized Criterion 3 for MHI IFKW. 
Criterion 3 states that, where total fisheries-related M&SI are greater 
than 10% PBR and less than 100% PBR, and the population is stable or 
increasing, fisheries may be permitted subject to individual review and 
certainty of data. NMFS considered multiple data sets and other 
information in conducting this analysis and applying Criterion 3 in the 
case of the MHI IFKW. The 1999 criteria were intended to guide NMFS in 
its evaluation of fishery impacts on marine mammal stocks, while 
allowing NMFS to exercise discretion, through the use of notice and 
comment in the permitting process and to take into account additional 
relevant information in

[[Page 62112]]

determining a fishery's expected impacts on a particular marine mammal 
stock. In this case, NMFS convened the FKWTRT, composed of commercial 
fishery representatives, conservation groups, scientists, state and 
federal fishery resource management officials, the Commission, and 
other interested stakeholders, to prepare a consensus FKWTRP that, when 
implemented by regulations, would be expected to reduce longline 
fishery impacts on pelagic and MHI IFKWs to less than PBR within six 
months and to insignificant levels approaching a zero mortality and 
serious injury rate (i.e., less than ten percent) of their respective 
PBR levels within five years of the plan implementation. As noted 
above, measures addressing the MHI IFKW include gear modifications to 
reduce the seriousness and frequency of injuries, reporting and captain 
training requirements, and area closures, including the closure of the 
MHI IFKW stock's core range. This Team is expected to meet at least 
annually to review the effectiveness of the Plan, and may recommend to 
NMFS additional measures or changes to the Plan when warranted.
    The current PBR for the MHI IFKW is 0.3; estimates of M&SI from 
longline fishing are a fraction below PBR. Both PBR and M&SI are 
extremely small numbers, indicative of both the IFKW's small population 
size, as well as the fishery's low impact rate. Although NMFS has 
historic information of a larger IFKW population, it does not currently 
have sufficient information with which to reliably determine whether 
the current population is stable or increasing. NMFS acknowledges the 
need for more reliable information regarding stock trajectory, but 
notes that this uncertainty, along with the presence of substantial 
observer coverage in this fishery, was considered in the FKWTRT's 
deliberations and in the adoption of the specific measures for 
minimizing the impact of the fishery on IFKWs. Nevertheless, NMFS does 
have reliable information regarding the longline fishery's impacts on 
that stock and believes that the FKWTRT process provides a useful 
adaptive management tool with which to quickly monitor, identify, and 
respond to unanticipated longline fishery impacts to the IFKW 
population. Moreover, NMFS retains its authority under MMPA section 
118(g) to issue emergency regulations and approve amendments to the 
FKWTRP, in consultation with the FKWTRT, where M&SI is having an 
immediate and significant adverse impact. Additionally, should it be 
determined that M&SI of MHI IFKW are having an adverse impact on the 
stock, the negligible impact determination would be re-evaluated 
pursuant to section 101(a)(5)(E)(iii), (iv), and (v) of the MMPA (16 
U.S.C. 1371(a)(5)(E)(iii), (iv), and (v)).
    Comment 2: HSUS and Earthjustice commented that although the 2007-
2011 data (in the 2013 SAR) indicate that MHI IFKW M&SI is less than 
PBR, the preliminary data for 2008-2012 (contained in the draft 2014 
SAR, currently under internal agency review) indicate that M&SI exceeds 
PBR. Earthjustice emphasized that because M&SI of MHI IFKW were 
observed in 2011 and 2012, and NMFS reports bycatch estimates as 5-year 
running averages, PBR will continue to be exceeded in future SARs, 
rather than below PBR, as NMFS predicted in the draft NID and proposed 
permit.
    Response: The NID analysis relies primarily on data from 2007-2011 
because they are the most recent data that have gone through the MMPA 
review process and are available in a published SAR (the 2013 SAR). 
More recent data (the 2008-2012 timeframe) have been provided to the 
Pacific Scientific Review Group for review but have not yet been made 
available for public review and comment as a draft SAR. We recognize 
that interactions with the deep-set longline fishery within the range 
of the MHI IFKW stock were observed in 2012 and will be reported in the 
draft 2014 SAR, and the 5-year average M&SI rate calculated in the SAR 
will account for those interactions. We considered the 2008-2012 data 
in the NID analysis and incorporated those data into the model to 
predict future levels of take (McCracken 2014); this model indicates 
that future annual M&SI for the MHI IFKWs will remain at or below the 
stock's PBR level, based on expected levels of longline fishing effort 
and upon implementation of the measures within the Plan.
    Consistent with the application of the 1999 negligible impact 
determination criteria, NMFS may exercise our discretion under MMPA to 
take into account other relevant information, including the predictive 
model, when deciding whether to issue the permit. The M&SI referred to 
by the commenter occurred in an area to the north of the MHI, which is 
now closed to longline fishing year-round under the expanded MHI 
Longline Prohibited Area, as unanimously recommended by the FKWTRT and 
implemented by NMFS through the FKWTRP regulations. Moreover, as more 
fully described in the NID, M&SI for MHI IFKWs is expected to be 
further reduced in response to a suite of mitigation measures contained 
in the FKWTRP, including gear requirements, the Southern Exclusion Zone 
trigger/closure, and captain training and reporting requirements, which 
went into effect in early 2013. Finally, preliminary observer data 
indicate there were no false killer whale interactions observed within 
range of the MHI IFKW stock in 2013 or in 2014 to date, which is 
consistent with the results of the predictive model. Accordingly, NMFS 
believes that the predictive model, which better accounts for these 
changes to the fishery, provides the more reliable estimate of 
fisheries-related M&SI. NMFS expects the implementation of consensus 
measures that are specifically intended to address impacts on MHI IFKW, 
with the commitment to re-evaluate the NID, if warranted, is sufficient 
to support issuance of the NID.
    Comment 3: HLA asserted that there has never been a documented 
interaction between the Hawaii longline fisheries and MHI IFKWs, 
despite high observer coverage and substantial genetic sampling of 
incidentally taken false killer whales. In addition, HLA cites NMFS' 
statement that there are ``no documented serious injuries or 
mortalities of [MHI IFKW stock] animals incidental to Hawaii's longline 
fisheries'' (75 FR 2853, January 19, 2010).
    Response: The draft NID and its conclusions regarding M&SI of MHI 
IFKW are based on the final 2013 and preliminary draft 2014 Pacific 
SARs (which document past M&SI) and predictive modeling (which 
evaluates expected future M&SI by the fishery). The SARs, the 
predictive model, and the references cited therein provide information 
on the data and methods used in assessing and estimating M&SI of MHI 
IFKW, including the associated assumptions and uncertainties.
    In evaluating potential impacts to MHI IFKW, NMFS accounted for 
uncertainty in stock identification when interactions occur, as well as 
data limitations based on observer coverage rates (generally 20% in the 
deep-set longline fishery). NMFS recognizes that although the FKWTRP 
regulations are expected to reduce the potential for impacts to the MHI 
IFKW to less than PBR within six months and to insignificant levels 
approaching a zero mortality and serious injury rate (i.e., less than 
ten percent) of their respective PBR levels within five years of the 
plan implementation, we cannot eliminate all risk of M&SI to the stock. 
MHI IFKW and pelagic false killer whales cohabit a considerable area 
referred to as the

[[Page 62113]]

``overlap zone''. As noted in the SARs and the NID, interactions 
between the deep-set longline fishery and false killer whales and 
blackfish (unidentified cetaceans known to be either false killer 
whales or short-finned pilot whales) have been observed within the MHI 
insular/pelagic stock overlap zone. Genetic sampling and photo 
identification are currently the only ways to distinguish MHI insular 
from pelagic false killer whales; and, because of challenging sampling 
conditions, these data were not collected from the animals involved in 
the interactions observed within the MHI insular/pelagic stock overlap 
zone.
    When takes cannot be affirmatively identified to a particular 
stock, they are subject to proration using peer-reviewed criteria that 
account for each stock's population and relative density. Takes of 
unidentified blackfish are prorated to each species, and false killer 
whales of unknown stock in the MHI insular/pelagic stock overlap zone 
are prorated to one stock or the other, based on various models 
(McCracken 2010). The assignment of take within the MHI insular/pelagic 
overlap zone is supported by GAMMS II. NMFS believes that proration is 
currently the best method for determining impacts among different 
stocks, given the challenges associated with making positive 
identifications of stock, and in accounting for impacts to all stocks.
    Finally, the reference to the NMFS statement, ``no documented 
serious injuries or mortalities of [MHI IFKW stock] animals incidental 
to Hawaii's longline fisheries,'' omits an entire sentence from the 
Federal Register notice, which states that the provided information 
comes from the 2008 and 2009 SARs. These SARs became final prior to 
reevaluation of the insular stock boundary and the establishment of the 
MHI insular/pelagic overlap zone and do not always necessarily 
represent the best available scientific and commercial information.
    Comment 4: HLA and the Council commented that the current MHI IFKW 
stock boundary (uniform 140 km from the MHI) is overinflated, given 
satellite tagging data that indicate different movement patterns 
between leeward and windward sides of the MHI, and a maximum distance 
from shore of 51.4 km on the windward side. HLA stated that additional 
analysis by NMFS has led the agency to conclude that the currently 
defined range is overbroad.
    Response: In the draft NID, NMFS identified the satellite tagging 
information suggestive of a reduced range of the MHI IFKW (from shore 
of 51.4 km) on the windward side of the MHI. In our analysis, we 
applied this information qualitatively along with other relevant 
information to support our conclusion that the predictive model 
represents the maximum impact of the longline fishery that is 
reasonably likely to occur, and that actual impacts likely would be 
less. However, the data referred to by HLA represent an incomplete 
subset of available information on the MHI IFKW movements, and they are 
currently being reviewed to help inform the decision whether to revise 
the boundaries for several Hawaii false killer whale stocks. At this 
time, NMFS has not yet completed this review as part of the stock 
assessment process, and revised boundaries, if any, have not yet been 
determined. Accordingly, NMFS will continue to rely on the established 
stock boundaries for this NID analysis, while taking into account new 
satellite tagging information where relevant to our management 
decisions.
    Comment 5: HLA recommended that NMFS reevaluate the historical 
(pre-2013) M&SI data in light of the new information on the MHI IFKW 
stock's range (described in Comment 4). HLA and the Council noted that 
all historical M&SI attributed to the MHI IFKW stock occurred on the 
windward side of the MHI beyond where MHI IFKWs have been observed or 
tracked. Given this information, HLA argues that the retrospective M&SI 
rate would be zero.
    Response: As explained in the response to Comment 4, NMFS took into 
account the new satellite tagging information, along with other 
relevant information, in determining that the predictive model 
represents the maximum impact of the longline fishery that is 
reasonably likely to occur. This information is currently being 
reviewed to help inform the decision whether to revise the boundaries 
for several Hawaii false killer whale stocks.
    Comment 6: HLA and the Council commented that the FKWTRP modified 
the existing MHI longline fishing prohibited area to eliminate the 
spatial overlap between MHI IFWKs and the longline fisheries, thereby 
eliminating the potential for MHI IFKW interactions with the longline 
fisheries. They note that modified year-round closure encompasses the 
locations of all false killer whale interactions assigned to the MHI 
IFKW stock, as well as all areas where MHI IFKWs have been observed or 
tracked. Therefore, the fishery is not likely to adversely affect the 
MHI IFKW.
    Response: The revision to the longline closure area is an important 
conservation measure to protect MHI IFKWs. However, as noted in FKWTRP 
final rule (77 FR 71260, November 29, 2012; comment/response 39) and 
IFKW ESA listing final rule (77 FR 70915, November 28, 2012; comment/
response 13), the Plan's revision to the longline exclusion zone is 
expected to substantially reduce but not eliminate the risk of 
interactions between MHI IFKWs and the longline fisheries. MHI IFKWs, 
like all small cetaceans, are highly mobile and do not confine their 
movements within precise boundaries. Because a portion of the MHI 
insular/pelagic stock overlap zone, as it is currently defined, remains 
open to longline fishing, NMFS must account for the potential for 
future M&SI in its management decisions, rare as those interactions are 
expected to be. Although NMFS does not agree that the MHI longline 
fishing prohibited area eliminates all risk to the MHI IFKW, we believe 
that M&SI for MHI IFKW will occur at very low levels as determined in 
the NID, and therefore is not likely to jeopardize the continued 
existence of MHI IFKW as defined under the ESA (see Comment 11, below). 
We have accounted for the revision to the MHI longline fishing 
prohibited area and its associated conservation benefits in our 
predictive model.
    Comment 7: CRC, HSUS, Earthjustice, and the Commission commented 
that the NID does not account for M&SI in fisheries other than the 
longline fisheries. The commenters assert that MHI IFKW interactions 
with non-longline fisheries may be occurring at a rate that exceeds 
PBR. Commenters provided the following arguments or information: (a) 
Interactions with commercial fisheries were identified as a main threat 
to the MHI IFWK population in NMFS's 2010 status review; (b) non-
longline fisheries are unmonitored, so marine mammal interactions are 
unreported or under-reported; (c) marine mammal depredation has been 
reported in nearshore (non-longline) fisheries; (d) a stranded MHI IFKW 
was shown to have ingested fishing hooks not used by the longline 
fisheries; (e) MHI IFKWs have scarring and fin disfigurements 
consistent with fisheries interactions, and the individual rate of 
fisheries interactions (based on scarring) for MHI IFKWs may exceed 
that for pelagic false killer whales, where M&SI is known to exceed 
PBR; (f) the apparent sex bias in the animals with fisheries-related 
scarring (all females) suggests that M&SI estimates may be negatively 
biased and may have a disproportionate impact on population dynamics; 
and (g) fisheries-related scarring does not occur with equal frequency 
in the three MHI IFKW social clusters, and there are coincident

[[Page 62114]]

differences in survival rates for each cluster, so impacts by social 
cluster could have greater or lesser impact on the stock.
    Response: NMFS recognizes that the NID may not account for all 
potential sources of M&SI, including unreported takes in fisheries 
other than Hawaii longline fisheries. However, the Hawaii longline 
fishery currently operates under a consensus FKWTRP that was 
specifically designed to reduce the longline fisheries' M&SI for 
pelagic and MHI IFKW to less than PBR within six months and to 
insignificant levels approaching a zero mortality and serious injury 
rate (i.e., less than ten percent) of their respective PBR levels 
within five years of the plan implementation in the Hawaii longline 
fisheries. Other coastal fisheries, including state-managed pelagic 
troll, kaka line, and short-line, as well as recreational fisheries, 
are not currently observed, and NMFS has received no self-reports from 
these fisheries of interactions with marine mammals. At present, the 
impacts of these fisheries on MHI IFKW have not been reliably 
documented. The State of Hawaii currently collects commercial fishing 
information on depredation but not marine mammal interactions (i.e. 
hooking and entanglements). This information has limited usefulness for 
evaluating impacts to marine mammals. However, NMFS continues to 
consult with the State of Hawaii and other partners to assess and 
address marine mammal interactions in state-managed fisheries. Data 
collection on marine mammal interactions in state fisheries has been 
identified as a research priority by the Team. NMFS and the State of 
Hawaii have updated their existing ESA Section 6 Cooperative Agreement 
to include the MHI IFKW. Additionally, the State of Hawaii intends to 
submit a proposal for federal funding in response to the recent ESA 
Section 6 Federal Funding Opportunity that would address priority 
recovery actions for the MHI IFKW. NMFS will continue to work with the 
Hawaii Department of Land and Natural Resources within available budget 
and resource constraints to improve data collection in these fisheries.
    With regard to the commenters pointing to specific examples of fin 
disfigurement, scarring, and hook ingestion to support an argument that 
fisheries impacts are occurring above and beyond those occurring from 
longline fishing, NMFS considered this information in its decision to 
list the MHI IFKW distinct population segment as an endangered species 
under the ESA. While NMFS shares the commenters' concerns as to what 
these incidents may mean to the species, it remains undetermined as to 
whether the observations of fin scarring would be deemed serious 
injuries, and if so, whether fishing hook ingestion caused M&SI of MHI 
IFKW.
    In summary, in the absence of available information regarding the 
potential impacts of other fisheries on MHI IFKW, NMFS cannot determine 
their contribution to total fisheries-related M&SI. NMFS is basing its 
decision to issue the permit under Criterion 3, where known longline 
fishing M&SI is between 10% and 100% of PBR, and due to the fact that 
the longline fishery is subject to management under a consensus FKWTRP 
that is intended to reduce longline impacts on MHI IFKW to levels below 
PBR within six months and to insignificant levels approaching a zero 
mortality and serious injury rate (i.e., less than ten percent) of 
their respective PBR level within five years of the plan 
implementation. NMFS remains concerned about the anecdotal evidence 
that MHI IFKW are interacting with other fisheries, and, therefore, 
NMFS is committed to working with the State of Hawaii and others to 
assess the frequency and severity of marine mammal interactions in 
state-managed fisheries, as well as the distribution of these 
interactions and how they may disproportionately affect different sexes 
or social clusters. Further, NMFS commits to working with the State of 
Hawaii and other partners at further reducing impacts to IFKW as 
appropriate.
    Comment 8: CRC and one individual commented that NMFS did not 
account for contaminants as a source of human-caused M&SI in MHI IFKWs. 
CRC cited several papers and provided data showing that concentrations 
of persistent organic pollutants in individual MHI IFKWs exceed safe 
threshold concentrations, and suggested that high levels of persistent 
organic pollutants may have health impacts and thus potentially 
contribute to mortality.
    Response: NMFS recognizes that contaminants may present a non-
fisheries related threat to MHI IFKWs (e.g., Oleson et al., 2010). NMFS 
is concerned about MHI IFKW exposure to persistent organic pollutants 
in particular; however, at present it is difficult to determine the 
contribution of contaminants on M&SI in MHI IFKWs. Within the timeframe 
analyzed for this NID, no mortalities of MHI IFKWs were attributed to 
acute contaminants exposure (Carretta et al. 2014). At this time, it 
remains unclear what effect chronic exposure to contaminants may be 
having on IFKW individuals and population health. Frequently, however, 
marine mammals are exposed to chronic low levels of contaminants and 
these chronic exposures can be extremely difficult to correlate to 
risks of M&SI or reproductive health and population survival.
    Comment 9: CRC, HSUS, Earthjustice, and the Commission commented 
that the MHI IFKW M&SI data are uncertain, specifically in the 
prediction of M&SI in the longline fisheries and in accounting for M&SI 
in non-longline fisheries. The Commission suggested that the level of 
uncertainty in M&SI data, particularly for a stock with a PBR less than 
one animal per year, should be grounds for withholding issuance of the 
permit.
    Response: NMFS acknowledges the uncertainty associated with the 
data. As more fully discussed above, NMFS' predictions account for data 
uncertainty by applying precautionary assumptions at various levels of 
the NID analysis. Although PBR for this stock is quite small, so is 
quantifiable M&SI from the longline fishery, and M&SI from longline 
fishing is based on prorated interactions that occurred in an area that 
is now permanently closed to longlining. Moreover, as more fully 
discussed in response to Comment 2, M&SI for the longline fishing is 
based on historical interaction data, collected prior to implementation 
of consensus FKWTRP measures that are specifically intended to reduce 
longline impacts on false killer whales to less than PBR within six 
months and to insignificant levels approaching a zero mortality and 
serious injury rate (i.e., less than ten percent of their respective 
PBR levels) within five years of the plan implementation. In addition, 
preliminary data indicate no M&SI for MHI IFKW in 2013 or in 2014 to 
date. Finally, under the adaptive management provisions of the FKWTRP 
and MMPA section 118(g), NMFS retains authority to amend the Plan, and 
implement emergency measures, should unanticipated impacts from the 
deep-set fishery threaten the conservation status of the MHI IFKW. 
Additionally, the negligible impact determination would be re-evaluated 
pursuant to section 101(a)(5)(E)(iii), (iv), and (v) of the MMPA (16 
U.S.C. 1371(a)(5)(E)(iii), (iv), and (v)). Based on these 
considerations, NMFS believes that it is appropriate to issue the 
permit, notwithstanding the existence of some uncertainty in fishery-
related M&SI.
    Comment 10: Earthjustice stated that NMFS provides no justification 
for its claim that the use of new gear under the

[[Page 62115]]

FKWTRP would reduce false killer whale M&SI by 6%.
    Response: The FKWTRT, which consisted of conservation organization 
representatives, biologists, federal and state officials, the 
Commission, and fishing industry representatives, unanimously 
recommended the requirement for weak circle hooks based on their 
collective professional judgment that these hooks would reduce both the 
frequency and severity of incidental interactions with false killer 
whales. The NID considers Forney et al. (2011) as the source of the 
predicted 6% reduction in false killer whale M&SI associated with the 
exclusive use of circle hooks in the deep-set fishery. This estimate is 
the best available information regarding the expected benefits of these 
hooks.
    Comment 11: The HSUS stated that a 2013 analysis of the biological 
impacts of the deep-set longline fishery by the Sustainable Fisheries 
Division of the NMFS Pacific Islands Regional Office concluded that the 
prorated level of M&SI of the MHI IFKW population incidental to the 
deep-set fishery (0.5 animals per year) exceeds the stock's PBR level 
of 0.3 animals per year, and that the longline fishery alone ``may 
affect and is likely to adversely affect'' the insular stock of false 
killer whales.
    Response: The analysis cited by HSUS appears in the Biological 
Evaluation that was submitted to the NMFS Pacific Islands Regional 
Office Protected Resources Division from the Sustainable Fisheries 
Division in order to initiate formal consultation under Section 7 of 
the ESA on the continued authorization of the Hawaii deep-set longline 
fishery. The Sustainable Fisheries Division included information from 
the most recent SAR available to the public at that time (2012 SAR, 
which included data from 2006-2010) to be incorporated into the ESA 
Section 7 Biological Opinion analysis. During the consultation period 
and the analysis for the NID, more recent data, including the 
predictive model, became available and were used in both the MMPA and 
ESA analyses.
    As more fully discussed in the response to Comment 1, the M&SI 
estimates cited by the commenter are based on historical data that 
preceded implementation of the FKWTRP regulations. To reach this NID 
NMFS believed it appropriate to consider not only historical M&SI 
information, but also other information that may affect the 
conservation status of the stock, such as the measures included in the 
FKWTRP, and the predictive model.
    The Sustainable Fisheries Division's analysis that the fishery 
``may affect and is likely to adversely affect'' the MHI IFKW 
population was conducted per the specific requirements and standards of 
the ESA regarding whether to conduct formal, rather than informal, 
consultation under ESA section 7. This finding under the authority of 
the ESA does not foreclose the issuance of a NID under MMPA; rather, it 
means that some level of take is anticipated requiring formal 
consultation under the ESA.
    Comment 12: CRC, HSUS, and Earthjustice commented that the results 
presented by McCracken (2014) indicate that M&SI in the longline 
fisheries likely exceed PBR. They argue that effort is likely to be 
closer to 1,000,000 hooks set in the ``open area'' than to the 600,000 
hooks analyzed in the model, because effort will shift from the area 
that was previously (pre-FKWTRP) open seasonally to the area just 
outside the now-closed (post-FKWTRP) area. They claim the effort will 
not be redistributed evenly, as is analyzed in the model, but that it 
will cluster closer to shore and within the MHI IFKW stock range, 
creating pockets of higher effort which the model does not capture.
    Response: NMFS completed a predictive model that, among other 
things, evenly redistributed an equal number of hooks that were removed 
from the area now closed to longlining under the FKWTRP to offshore 
areas in the action area that remain open to longlining. NMFS does not 
anticipate that this redistributed effort will be close to or over 
1,000,000 hooks in the ``open area'' or that redistributed effort will 
cluster along the boundaries of the expanded closure due to the nature 
of the fishery and the actual effort that was observed in 2013. 
Longline gear is typically set across 30-40 miles of water, and while 
some vessels will likely fish in the open area along the edge of the 
expanded longline closure, redistributed effort is most likely to occur 
where pelagic fishery resources are being caught at any given time. 
Since NMFS cannot predict where the fish will be found at any given 
time, we believe it was appropriate to assume an even redistribution of 
that effort throughout the action area.
    In addition, logbook effort data were plotted to determine if there 
were clusters of effort just outside the boundary of the closed area, 
as indicated by the commenters. This an important consideration because 
false killer whale bycatch within the MHI insular/pelagic stock overlap 
zone is prorated to stock based on distance from shore, so interactions 
closer to shore have a higher probability of being assigned to the 
insular stock. The logbook data show that in 2013, proportionally less 
effort was concentrated on the inner boundary of the open area in 2013 
than in previous years (McCracken, pers. comm.), indicating that the 
clustering effect suggested by the commenters is not occurring.
    In 2008, just over a million hooks were set in the ``open area'' 
but effort has remained well below since that time (see Table 1 in 
McCracken 2014). In 2013 (the first year after the implementation of 
the FKWTRP), logbook data indicate that there were 98 sets and 344,808 
hooks set in the open area, below the 600,000 hooks that were analyzed 
in the model (McCracken, pers. comm.). NMFS believes that effort may 
vary in the open area but will not likely reach levels of 1,000,000 
hooks based on the last several years of data and current regulatory 
measures in place for false killer whales under the FKWTRP. However, 
NMFS will continue to monitor fishing effort to identify any changes in 
the operation of the fishery that may warrant adjustments to its models 
and the effects on the NID analysis.
    Comment 13: Earthjustice and HSUS argued that it is premature to 
rely on the FKWTRP to ensure that the deep-set fishery has a negligible 
impact to MHI IFKWs because it has not yet been shown to be effective. 
The commenters cite false killer whale takes that have been observed 
since the FKWTRP went into effect, including one for which the required 
gear did not perform as expected to straighten and release the hooked 
animal. One commenter expressed concern that NMFS is relying on a 
sample size of only one event to show that the new gear can straighten 
effectively and release a hooked animal.
    Response: NMFS notes that, although the Plan has been in place for 
less than two years, its required measures represent the consensus 
effort of a diverse team of conservationists, scientists, and federal 
and state officials, to put in place conservation and management 
measures they believe will be effective in meaningfully reducing 
impacts on MHI IFKW. The FKWTRP has been in effect since December 31, 
2012, and its gear regulations for the deep-set fishery in effect since 
February 27, 2013. Through the FKWTRP, NMFS has a tool with which to 
monitor and respond to impacts to MHI IFKW if M&SI should exceed PBR. 
The FKWTRP and the FKWTRT process provide an important adaptive 
management framework with which to identify, through reporting and 
monitoring, unanticipated impacts to the stock, and to develop 
additional remedial

[[Page 62116]]

measures, such as through amendment of the FKWTRP, or through emergency 
rulemaking, to ensure any future impacts do not result in significant 
adverse impacts.
    The FKWTRP is expected to reduce interactions with MHI IFKWs, 
primarily as a result of the revision to the existing longline 
prohibited area surrounding the MHI. The Team's recommended revision 
implemented by NMFS eliminated the seasonal change in the boundary on 
the windward side of the MHI, thereby prohibiting longlining year-round 
within a large majority of the MHI IFWK's stock range. Since the FKWTRP 
and the revised longline prohibited area went into effect, there have 
been no observed false killer whale interactions within the range of 
the insular stock. The observed interactions noted by the commenters 
that occurred since the FKWTRP went into effect involved pelagic false 
killer whales and were not within the range of the insular stock.
    In addition, the FKWTRP includes gear modifications that are 
expected to reduce the number and severity of false killer whale 
hookings. This expectation is supported by NMFS's analysis (e.g., 
bootstrap simulations detailed in Forney et al. 2011) and an experiment 
that demonstrated that the required hooks are capable of straightening 
and releasing a hooked false killer whale (Bigelow et al. 2012). There 
are now three observations of false killer whales straightening hooks 
that meet the FKWTRP's requirements and releasing the whales with no 
gear attached. NMFS, in consultation with the Team, will continue to 
monitor the effectiveness of the FKWTRP's gear and other requirements.
    While NMFS cannot yet fully evaluate the impact of the Plan on 
false killer whale M&SI, since the implementation of the Plan there 
have been no observed false killer whale or blackfish interactions in 
the range of the MHI IFKW, and where interactions have occurred, the 
gear performed in a manner that the Plan intended, which means the hook 
straightened and the animal was released from the gear.
    Comment 14: The HSUS, CRC, the Commission, and Earthjustice state 
that Criterion 3 is not met because the population trend is not stable 
or increasing and they point to the SARs, the 2010 status review, and 
Silva et al. (2013), as evidence that the population is declining.
    Response: Although MHI IFKW are believed to have declined markedly 
during the 1990s, at this time, their current population trajectory is 
unknown (Oleson et al. 2010). Nevertheless, NMFS acknowledges the need 
for more reliable information regarding stock trajectory, but notes 
that this uncertainty, along with the presence of substantial observer 
coverage in this fishery, was considered in the Team's deliberations 
and in the adoption of the specific measures for minimizing the impact 
of the fishery on IFKWs. As such, NMFS believes that the measures in 
place, coupled with the FKWTRT process, provide a meaningful, adaptive 
management tool with which to quickly monitor, identify, and respond to 
any unanticipated longline fishery impacts to the MHI IFKW population. 
NMFS will continue to conduct and support research on the MHI IFKW 
population and trends.
    Comment 15: CRC and the Commission recommended that NMFS work with 
State of Hawaii to collect data on and monitor marine mammal 
interactions in non-longline fisheries (e.g., via an observer program).
    Response: NMFS recognizes the need for additional collection of 
information on marine mammal interactions in non-longline fisheries 
around Hawaii and that the State currently has minimal reporting 
requirements for marine mammal interactions with state-managed 
fisheries. NMFS continues to consult with the State of Hawaii and other 
partners to assess and address marine mammal interactions in state-
managed fisheries. Data collection in state fisheries has been 
identified as a research priority by the FKWTRT. NMFS and the State of 
Hawaii have updated their existing ESA Section 6 Cooperative Agreement 
to include support for research and bycatch reduction for the Hawaiian 
insular false killer whale. Additionally, as indicted in the response 
to Comment 7, the State of Hawaii intends to submit a proposal for 
federal funding in response to the recent ESA Section 6 Federal Funding 
Opportunity that intends to address priority recovery actions for the 
MHI IFKW. NMFS will continue to work with the Hawaii Department of Land 
and Natural Resources within available budget and resource constraints 
to improve data collection in these fisheries.
    Comment 16: The HSUS stated that there is no recovery plan in place 
for the MHI IFKW stock, and that without a recovery plan to address the 
all anthropogenic impacts, permitting take in the deep-set fishery 
would violate the precautionary principle. The HSUS also stated that no 
take should be authorized in the absence of a recovery plan for this 
stock.
    Response: Section 101(a)(5)(E) allows for the incidental taking of 
depleted marine mammal stocks by commercial fisheries, subject to 
certain findings and requirements. One such finding is that ``a 
recovery plan has been developed or is being developed for such species 
or stock pursuant to the Endangered Species Act of 1973'' (16 U.S.C. 
1371(a)(5)(E)(i)(II)). NMFS acknowledges that a recovery plan has not 
yet been finalized, but the process to develop a recovery plan has been 
initiated (78 FR 60850, October 2, 2013).
    Comment 17: The HSUS noted that making a NID triggers the 
requirement to reinitiate consultation and to issue an incidental take 
statement (ITS) under the ESA. They state that the 2012 Biological 
Opinion for the shallow-set longline fishery will need to be 
reinitiated due to the negligible impact determination. They state that 
the Biological Opinion being prepared for the deep-set fishery will 
require an ITS for the take of listed species and that the ITS must 
specify reasonable and prudent measures to mitigate the impact of take 
on the species and the individual animals to be taken, as well as a 
trigger for reiniation of consultation. The HSUS argues that reliance 
on the FKWTRP is risk-prone, given the on-going false killer whale 
interactions, so additional mitigation measures must be adopted. They 
also state that a single take would/should trigger emergency suspension 
of the fishery, as it would exceed the PBR for the three-year 
authorization.
    Response: Because the MMPA 101(a)(5)(E) permit process analyzes 
impacts of the fishery as it is currently managed under existing 
fishery management plan regulations, reinitiation of consultation is 
only required if one or more of the triggers in 50 CFR 402.16 are met. 
Because NMFS has determined that there has been no take of MHI IFKW or 
sperm whales by the shallow-set fishery, the permit does not cover the 
shallow set fishery for those stocks. Moreover, issuance of the permit 
will not result in impacts to CNP humpback whales that were not already 
analyzed in the 2012 biological opinion; accordingly, reinitiation of 
consultation is not required.
    With respect to the deep-set fishery, NMFS completed a Biological 
Opinion on September 19, 2014, consistent with ESA section 7, which 
considered information in the NID analysis. An ITS specifies reasonable 
and prudent measures and terms and conditions for mitigating the impact 
of take of protected species, as well as specify terms for reinitiation 
of consultation, and will become valid for cetaceans once this permit 
is finalized. This MMPA permit, although related to the

[[Page 62117]]

Biological Opinion, is a separate determination that considers those 
factors specified in MMPA section 101(a)(5)(E).
    NMFS disagrees that it is premature to rely on the FKWTRP to ensure 
that M&SI is less than PBR in the deep-set fishery which is described 
in greater detail in comment 13. We also disagree that a single take in 
the overlap zone should trigger an emergency suspension of the fishery 
because such take would exceed PBR. Based on the best available 
science, after an expansion factor (5) is applied to account for 
observer coverage (20%) and a proration factor (15%) is applied to 
account for the probability that an interaction in the overlap zone 
involves a MHI IFKW, a single take in the overlap area would be the 
equivalent of 0.75 MHI IFKW. As a term and condition of the September 
19, 2014 Biological Opinion on the deep-set fishery (NMFS 2014), two 
M&SI in the overlap area during any three-year period would trigger 
reinitiation of consultation and require the immediate convening of the 
FKWTRT to provide recommendations regarding possible emergency 
measures.
    Comment 18: Earthjustice stated that NMFS should close off the 
entire 140 km range to eliminate the risk of longline fishery 
interactions with the MHI IFKW.
    Response: This action is limited to determining whether to issue a 
permit under MMPA section 101(a)(5)(E), which would allow the Hawaii-
based longline fisheries, as currently managed and operated, to 
incidentally take individuals from certain ESA-listed marine mammal 
stocks. Potential future measures to expand the range of the MHI 
longline fishing prohibited area, either through emergency rulemaking 
or amendment of the FKWTRP, are beyond the scope of this decision.
    With regard to the commenter's suggestion of excluding longline 
fishing form the entire known range of the stock, the FKWTRP 
regulations prohibit longline fishing within the entire core range and 
a large portion of the ``extended'' range of the MHI IFKW stock (which 
extends out to 140 km from shore), which NMFS determined would 
substantially reduce the risk of MHI IFKW interactions in the longline 
fisheries. The FKWTRT unanimously concluded that by permanently 
extending the seasonal boundary of the MHI longline prohibited area to 
include all overlap areas where prorated interactions with MHI IFKW and 
pelagic false killer whales have occurred, the risk to MHI IFKW would 
be significantly reduced. NMFS emphasizes that like all small 
cetaceans, MHI IFKW do not confine their movements to precise areas. 
Nevertheless, while we cannot eliminate all risk to the MHI IFKW from 
longline fishing, predictive modeling based on precautionary 
assumptions projects no more than one M&SI every four years. Under 
these circumstances, NMFS does not believe a further increase in the 
longline closure area is necessary to protect MHI IFKWs. However, if 
the FKWTRP is not effective in protecting the stock, (i.e., if M&SI 
should exceed PBR), then NMFS, in consultation with the FKWTRT, will 
develop and implement additional measures to meet the MMPA take 
reduction goals and will re-evaluate the NID.
    Comment 19: CRC states that given the small PBR for MHI IFKW and 
the relatively small overlap between the fishery and the population's 
range, there is insufficient observer coverage within the ``open area'' 
to produce reliable estimates of longline M&SI for the MHI IFKW and 
that an analysis to determine the sample size of observer coverage is 
required within the area to have a reasonable probability of detecting 
bycatch that may approach or exceed PBR.
    Response: NMFS acknowledges CRC's concern regarding the adequacy of 
observer coverage levels to detect take levels that could exceed PBR, 
given the stock's small PBR level and the small area of overlap between 
the fisheries and the stock. NMFS's Hawaii Longline Observer Program is 
designed to provide representative coverage of fishing effort by the 
fleet, but is not designed to cover specific areas of operation. 
However, in considering CRC's comment, we evaluated the level of 
observer coverage in the ``open area'' (the area of overlap between the 
longline fisheries and MHI IFKWs). We calculated this as the number of 
trips observed within the area divided by the number of trips recorded 
as fishing within the area. We note that these coverage levels do not 
imply a random sample, a representative sample, or that coverage was 
constant throughout the year. Despite these caveats, in recent years, 
coverage in the open area has been as follows: 2008, 13.6%; 2009, 
16.1%; 2010, 25.4%; 2011, 18.8%; 2012, 26.1%; 2013, 22.4%, which is 
20.4% for a six-year average. An analysis described in the report from 
NMFS's 2011 workshop on revising the GAMMS (Moore and Merrick, 2011) 
indicates that for a stock with a PBR of 1.0 and observer coverage of 
20%, data pooled across four or more years would achieve an 
approximately unbiased estimate of M&SI. NMFS regularly pools M&SI 
estimates across five years to produce average annual estimate for 
comparison to PBR and believes that this level of observer coverage in 
the open area, combined with the pooling of M&SI data provide 
sufficiently reliable information with which to assess IFKW bycatch in 
the deep-set longline fishery.

    Dated: October 10, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-24567 Filed 10-15-14; 8:45 am]
BILLING CODE 3510-22-P