Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Notices 62105 

2. Significant Producer of Comparable 

Merchandise 

3. Quality and Public Availability of Data 

B. General Challenge to the Surrogate 

Country Selection in the Preliminary 

Results 

Comment 2: Adjusting Surrogate Values to 

Reflect Direct Packing Materials 

Recommendation 

[FR Doc. 2014–24653 Filed 10–15–14; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Institute of Standards and 

Technology 

Judges Panel of the Malcolm Baldrige 

National Quality Award 

AGENCY: National Institute of Standards 

and Technology, Department of 

Commerce. 

ACTION: Notice of closed meeting. 

SUMMARY: The Judges Panel of the 

Malcolm Baldrige National Quality 

Award (Judges Panel) will meet in 

closed session Monday through Friday, 

November 3–7, 2014, from 8:30 a.m. 

until 5:30 p.m. Eastern Time each day. 

The purpose of this meeting is to review 

recommendations from site visits, and 

recommend 2014 Malcolm Baldrige 

National Quality Award recipients. The 

meeting is closed to the public in order 

to protect the proprietary data to be 

examined and discussed at the meeting. 

DATES: The meeting will be held 

Monday through Friday, November 3–7, 

2014, from 8:30 a.m. until 5:30 p.m. 

Eastern Time each day. The entire 

meeting will be closed to the public. 

ADDRESSES: The meeting will be held at 

the National Institute of Standards and 

Technology, Administration Building, 

Gaithersburg, Maryland 20899. 

FOR FURTHER INFORMATION CONTACT: 

Robert Fangmeyer, Director, Baldrige 

Performance Excellence Program, 

National Institute of Standards and 

Technology, Gaithersburg, Maryland 

20899, telephone number (301) 975– 

4781, email robert.fangmeyer@nist.gov. 

SUPPLEMENTARY INFORMATION: 

Authority: 15 U.S.C. 3711a(d)(1) and the 

Federal Advisory Committee Act, as 

amended, 5 U.S.C. App. 

Pursuant to the Federal Advisory 

Committee Act, as amended, 5 U.S.C. 

app., notice is hereby given that the 

Judges Panel will meet on Monday 

through Friday, November 3–7, 2014, 

from 8:30 a.m. until 5:30 p.m. Eastern 

Time each day. The Judges Panel is 

composed of twelve members, 

appointed by the Secretary of 

Commerce, chosen for their familiarity 

with quality improvement operations 

and competitiveness issues of 

manufacturing companies, service 

companies, small businesses, health 

care providers, and educational 

institutions. Members are also chosen 

who have broad experience in for-profit 

and nonprofit areas. The purpose of this 

meeting is to review recommendations 

from site visits, and recommend 2014 

Malcolm Baldrige National Quality 

Award recipients. The meeting is closed 

to the public in order to protect the 

proprietary data to be examined and 

discussed at the meeting. 

The Chief Financial Officer and 

Assistant Secretary for Administration, 

with the concurrence of the Assistant 

General Counsel for Administration, 

formally determined on March 25, 2014, 

pursuant to Section 10(d) of the Federal 

Advisory Committee Act, as amended 

by Section 5(c) of the Government in 

Sunshine Act, Public Law 94–409, that 

the meeting of the Judges Panel may be 

closed to the public in accordance with 

5 U.S.C. 552b(c)(4) because the meeting 

is likely to disclose trade secrets and 

commercial or financial information 

obtained from a person which is 

privileged or confidential; and 5 U.S.C. 

552b(c)(9)(b [sic]) because for a 

government agency the meeting is likely 

to disclose information that could 

significantly frustrate implementation of 

a proposed agency action. The meeting, 

which involves examination of current 

Award applicant data from U.S. 

organizations and a discussion of these 

data as compared to the Award criteria 

in order to recommend Award 

recipients, will be closed to the public. 

Dated: October 8, 2014. 

Philip Singerman, 

Associate Director for Innovation and 

Industry Services. 

[FR Doc. 2014–24647 Filed 10–15–14; 8:45 am] 

BILLING CODE 3510–13–P 

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. 

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: http://www.fpir.noaa.gov/DIR/

dir_public_documents.html. Recovery 

plans for these species are available on 

the Internet at the following address: 

http://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: http://

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 MagnusonStevens 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 


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62106 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Notices 

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 humanrelated 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 humanrelated 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 fisheriesrelated 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 yearto-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. 


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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Notices 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 humancaused 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 nonserious 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 humancaused 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 Nonserious 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 fisheriesrelated 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 shallowset 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 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
62108 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Notices 

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 deepset 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 deepset 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 


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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 Federallyauthorized 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° N and longitudes 

140° and 180° W; however, the majority 

of deep-set fishing occurs south of 20° 

N and the majority of shallow-set 

fishing occurs north of 20° 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 deepset 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 http://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. 


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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 Federallyauthorized 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) longline ............................................................................. I .................... Humpback whale, CNP stock. 

Sperm whale, Hawaii stock. 

MHI IFKW stock. 

CA thresher shark/swordfish drift gillnet fishery (≥14 in mesh) ................................ I .................... Fin whale, CA/OR/WA stock. 

Humpback whale, CA/OR/WA stock. 

Sperm whale, CA/OR/WA stock. 

HI shallow-set (swordfish target) longline/set line .................................................... II ................... Humpback whale, CNP stock. 

AK Bering Sea/Aleutian Islands flatfish trawl ............................................................ II ................... Steller sea lion, Western stock. 

AK Bering Sea/Aleutian Island pollock trawl ............................................................. II ................... Fin whale, NEP stock. 

Steller sea lion, Western stock. 

AK Bering Sea sablefish pot ..................................................................................... II ................... Humpback whale, WNP stock. 

Humpback whale, CNP stock. 


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TABLE 1—LIST OF FISHERIES AUTHORIZED TO TAKE SPECIFIC THREATENED AND ENDANGERED MARINE MAMMALS

INCIDENTAL TO COMMERCIAL FISHING OPERATIONS—Continued 

Fishery Category Marine mammal stock 

AK Bering Sea/Aleutian Islands Pacific cod longline fisheries ................................. II ................... Steller sea lion, Western stock. 

WA/OR/CA sablefish pot fishery ............................................................................... II ................... Humpback whale, CA/OR/WA stock. 

AK miscellaneous finfish set gillnet ........................................................................... III .................. Steller sea lion, Western stock. 

AK Gulf of Alaska sablefish longline ......................................................................... III .................. Sperm whale, NP stock. 

Steller sea lion, Eastern stock. 

AK halibut longline/set line (State and Federal waters) ........................................... III .................. Steller sea lion, Western stock. 

AK Bering Sea/Aleutian Islands Atka mackerel trawl ............................................... III .................. Steller sea lion, Western stock. 

AK Bering Sea/Aleutian Islands Pacific cod trawl .................................................... III .................. Steller sea lion, Western stock. 

AK Gulf of Alaska Pacific cod trawl .......................................................................... III .................. Steller sea lion, Western stock. 

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 longline/set line ................................................. III .................. None documented. 

WA/OR North Pacific halibut longline/set line ........................................................... III .................. None documented. 

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 


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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 


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‘‘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 (pre2013) 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 nonlongline 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 underreported; (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) fisheriesrelated scarring does not occur with 

equal frequency in the three MHI IFKW 

social clusters, and there are coincident 


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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 fisheriesrelated 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 humancaused 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 nonfisheries 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 fisheryrelated M&SI. 

Comment 10: Earthjustice stated that 

NMFS provides no justification for its 

claim that the use of new gear under the 


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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 


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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 nonlongline fisheries around Hawaii and 

that the State currently has minimal 

reporting requirements for marine 

mammal interactions with statemanaged fisheries. NMFS continues to 

consult with the State of Hawaii and 

other partners to assess and address 

marine mammal interactions in statemanaged 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 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Notices 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 sixyear 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XD543 

Appointments to the Climate and 

Aquaculture Task Forces by the Marine 

Fisheries Advisory Committee 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; Request for 

Nominations. 

SUMMARY: Nominations are being sought 

for appointment to two new task forces 

of the Marine Fisheries Advisory 

Committee (MAFAC) to support its 

advisory work for the Secretary of 

Commerce on living marine resource 

matters. One task force will focus on 

climate and marine resources issues and 

the other on aquaculture issues. The 

members will be appointed by NMFS in 

consultation with MAFAC and will 

serve for an initial term of one or two 

years. The terms would begin in 

November or December 2014. Nominees 

should possess demonstrable knowledge 

or expertise in the areas described under 

Supplemental Information for each task 

force. 

DATES: Nominations must be 

postmarked or have an email date stamp 

on or before November 17, 2014. 

ADDRESSES: Nominations should be sent 

to Heidi Lovett, Office of Policy, NMFS 

F–14438, 1315 East-West Highway, 

Silver Spring, MD 20910 or to 

heidi.lovett@noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Heidi Lovett, (301) 427–8004; email: 

heidi.lovett@noaa.gov. 

SUPPLEMENTARY INFORMATION: MAFAC is 

the only Federal advisory committee 

with the responsibility to advise the 

Secretary of Commerce (Secretary) on 

all matters concerning living marine 

resources that are the responsibility of 

the Department of Commerce. MAFAC 


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