Pacific Island Pelagic Fisheries; False Killer Whale Take Reduction Plan; Closure of Southern Exclusion Zone, 5356-5358 [2019-02995]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 35 (Thursday, February 21, 2019)]
[Rules and Regulations]
[Pages 5356-5358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02995]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 229

[Docket No. 110131070-2626-02]
RIN 0648-XG781


Pacific Island Pelagic Fisheries; False Killer Whale Take 
Reduction Plan; Closure of Southern Exclusion Zone

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

ACTION: Temporary rule; area closure; request for comments.

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SUMMARY: NMFS is closing the Southern Exclusion Zone (SEZ) to deep-set 
longline fishing for all vessels registered under the Hawaii longline 
limited access program, as a result of the fishery reaching the 
established annual trigger of two observed false killer whale 
mortalities or serious injuries (M&SI) in the fishery within the U.S. 
Exclusive Economic Zone (EEZ) around Hawaii. This action is necessary 
to comply with False Killer Whale Take Reduction Plan (Plan) 
regulations that establish the SEZ closure trigger and procedures to 
limit M&SI of false killer whales in the Hawaii deep-set longline 
fishery.

DATES: Effective February 22, 2019.
    NMFS must receive comments by March 25, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0005, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0005. Click the 
``Comment Now'' icon, complete the required fields, and enter or attach 
your comments.
     Mail: Submit written comments to Michael D. Tosatto, 
Regional Administrator, NMFS Pacific Islands Region (PIR), attention 
Kevin Brindock, Protected Resources, 1845 Wasp Blvd., Bldg. 176, 
Honolulu, HI 96818.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Kevin Brindock, Protected Resources, 
NMFS Pacific Islands Regional Office, 808-725-5146, 
kevin.brindock@noaa.gov; or Kristy Long, NMFS Office of Protected 
Resources, 206-526-4792, kristy.long@noaa.gov.

SUPPLEMENTARY INFORMATION: The False Killer Whale Take Reduction Plan 
(Plan) was implemented on December 31, 2012, pursuant to section 118(f) 
of the Marine Mammal Protection Act (MMPA) to reduce the level of 
incidental M&SI of the Hawaii pelagic and Hawaii insular stocks of 
false killer whales in the Hawaii longline fisheries (77 FR 71260; 
November 29, 2012). The Plan, based on consensus recommendations from 
the False Killer Whale Take Reduction Team, was implemented by 
regulations, which included the creation of the SEZ that would be 
closed to deep-set longline fishing if a certain number (trigger) of 
false killer whale M&SI are observed in the deep-set fishery in the 
EEZ. As described in the Plan regulations (50 CFR 229.37(d)(2)), the 
SEZ is bounded on the east at 154[deg]30' W longitude, on the west at 
165[deg] W longitude, on the north by the boundaries of the Main 
Hawaiian Islands Longline Fishing Prohibited Area and Papahanaumokuakea 
Marine National Monument, and on the south by the EEZ boundary (see 
Fig. 1). A SEZ closure is triggered if, after expanding the number of 
observed M&SI, the Hawaii pelagic stock's potential biological removal

[[Page 5357]]

(PBR) level has been exceeded. The 2012 final rule set the trigger as 
the larger of either two observed M&SI of false killer whales within 
the EEZ around Hawaii, or the smallest number of observed M&SI of false 
killer whales that, when extrapolated based on the percentage observer 
coverage for that year (20 percent), exceeds PBR. Under the final 2017 
Stock Assessment Report, PBR is 9.3 pelagic false killer whales per 
year. Accordingly, with 20 percent observer coverage, the current 
trigger remains two observed M&SI (i.e., two observed M&SI expands to 
10, which exceeds PBR of 9.3).
[GRAPHIC] [TIFF OMITTED] TR21FE19.000

    NMFS-certified fishery observers documented two false killer whales 
hooked during deep-set trips in the U.S. EEZ, one each on January 10 
and January 15, 2019. One of these interactions resulted in a mortality 
and the other animal was released injured. NMFS followed the procedures 
outlined in the final rule and criteria in the NMFS process for 
distinguishing serious from non-serious injuries of marine mammals 
(NMFS Policy Directive PD 02-238 and NMFS Instruction 02-238-01) to 
evaluate the injury of the animal that was released injured, and 
determined that it was a serious injury. Therefore, NMFS has determined 
that the SEZ trigger (i.e., two M&SI) has been met, and closing the SEZ 
to deep-set longline fishing is required to comply with the Plan.
    In accordance with 50 CFR 229.37(e)(6)), NMFS must publish 
notification that the SEZ will be closed to deep-set longline fishing 
beginning on a specified date, which is not earlier than 7 days and not 
later than 15 days after the date of filing the closure notice for 
public inspection at the Office of the Federal Register. During the 
closure, it is prohibited to fish using deep-set longline gear in the 
SEZ.
    The SEZ was closed to deep-set longline fishing on July 24, 2018, 
following four false killer whale serious injuries in the Hawaii deep-
set longline fishery that occurred inside the EEZ around Hawaii during 
that calendar year. The SEZ was reopened to deep-set longline fishing 
on January 1, 2019. Because an observed false killer whale mortality or 
serious injury in the EEZ around Hawaii met the established trigger in 
the subsequent calendar year following an SEZ closure, the SEZ will be 
closed until one or more of the following criteria described in the 
Plan regulations (50 CFR 229.37(e)(5)) are met: (i) The Assistant 
Administrator determines, upon consideration of the False Killer Whale 
Take Reduction Team's recommendations and evaluation of all relevant 
circumstances, that reopening of the SEZ is warranted; (ii) In the two-
year period immediately following the date of the SEZ closure, the 
deep-set longline fishery has zero observed false killer whale 
incidental mortalities and serious injuries within the remaining open 
areas of the EEZ around Hawaii; (iii) In the two-year period 
immediately following the date of the closure, the deep-set longline 
fishery has reduced its total rate of false killer whale incidental 
mortality and serious injury (including the EEZ around Hawaii, the high 
seas, and the EEZ around Johnston Atoll (but not Palmyra Atoll) by an 
amount equal to or greater than the rate that would be required to 
reduce false killer whale incidental M&SI within the EEZ around Hawaii 
to below the Hawaii Pelagic false killer whale stock's PBR level; or 
(iv) The average estimated level of false killer whale incidental M&SI 
in the deep-set longline fishery within the remaining open areas of the 
EEZ around Hawaii for up to the five most recent years is below the PBR 
level for the Hawaii Pelagic stock of false killer whales at that time.
    This document serves as advance notification to fishermen, the 
fishing industry, and the general public that the SEZ will be closed to 
deep-set longline fishing starting on February 22, 2019.
    NMFS will consider public comments on this temporary rule. NMFS 
must receive comments by the date provided

[[Page 5358]]

in the DATES heading, not postmarked or otherwise transmitted by this 
date.

Classification

    There is good cause to waive prior notice and an opportunity for 
public comment on this action pursuant to 5 U.S.C. 553(b)(B). Providing 
an opportunity for prior notice and comment would be contrary to the 
public interest because the SEZ closure has been triggered by a second 
observed M&SI, and immediate closure of the SEZ is necessary to prevent 
additional mortalities or serious injuries, which may have 
unsustainable impacts on the Hawaii pelagic stock of the false killer 
whale. Furthermore, prior notice and comment is unnecessary because the 
take reduction plan final rule (77 FR 71259, November 29, 2012) that 
implements the procedure for closing the SEZ (codified at 50 CFR 
229.37(d)(2) and (e)) has already been subject to an extensive public 
process, including the opportunity for prior notice and comment. All 
that remains is to notify the public of the second observed mortality 
and serious injury of a pelagic false killer whale resulting from 
commercial longline operations, and the longline closure of the SEZ. 
Although this action is being implemented without the opportunity for 
prior notice and comment, NMFS is soliciting and will respond to public 
comments from those affected by or otherwise interested in this rule.
    The NOAA Assistant Administrator for Fisheries also finds good 
cause to waive the 30-day delay in the effectiveness of this action 
under 5 U.S.C. 553(d)(3). Failing to waive the 30-day delay in 
effectiveness would likely result in additional interactions and 
possible M&SI to the Hawaii pelagic false killer whale stock. Under the 
MMPA, NMFS must reduce M&SI of marine mammal stocks protected by take 
reduction plan regulations. This includes taking action to close the 
SEZ immediately upon a second observed M&SI resulting from commercial 
longlining in the EEZ. Accordingly, the SEZ closure must be implemented 
immediately to ensure compliance with the provisions of the MMPA and 
the take reduction plan regulations. Nevertheless, NMFS recognizes the 
need for fishermen to have time to haul their gear and relocate to 
areas outside of the SEZ; thus, NMFS makes this action effective 7 days 
after filing this document in the Federal Register.
    This action is required by 50 CFR 229.37(e)(3), and is exempt from 
review under Executive Order 12866.

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

    Dated: February 15, 2019.
Chris Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2019-02995 Filed 2-15-19; 4:15 pm]
 BILLING CODE 3510-22-P