International Fisheries Regulations; Fisheries in the Western Pacific; Pelagic Fisheries; Hawaii-based Shallow-set Longline Fishery, 65460-65480 [E9-29444]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65460-65480]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29444]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 665

[Docket No. 080225267-91393-03]
RIN 0648-AW49


International Fisheries Regulations; Fisheries in the Western 
Pacific; Pelagic Fisheries; Hawaii-based Shallow-set Longline Fishery

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

ACTION: Final rule.

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SUMMARY: This final rule removes the annual limit on the number of 
fishing gear deployments (sets) for the Hawaii-based pelagic shallow-
set longline fishery, and increases the annual number of allowable 
incidental interactions that occur between the fishery and loggerhead 
sea turtles. The final rule optimizes yield from the fishery without 
jeopardizing the continued existence of sea turtles and other protected 
resources. This final rule also makes several administrative 
clarifications to the regulations.

DATES: This final rule is effective January 11, 2010.

ADDRESSES: The Fishery Management Plan for Pelagic Fisheries of the 
Western Pacific Region (Pelagics FMP) and Amendment 18, including a 
final supplemental environmental impact statement (SEIS), are available 
from the Western Pacific Fishery Management Council (Council), 1164 
Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-
522-8226, www.wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Adam Bailey, Sustainable Fisheries 
Division, NMFS PIR, 808-944-2248.

SUPPLEMENTARY INFORMATION: This final rule is also accessible at 
www.gpoaccess.gov/fr.
    Pelagic fisheries in the U.S. western Pacific are managed under the 
Pelagics FMP, developed by the Council and approved and implemented by 
NMFS. The Council submitted Amendment 18 and draft regulations to NMFS 
for review under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Amendment 18 was approved by the 
Secretary of Commerce on June 17, 2009. This final rule implements the 
management provisions in Amendment 18, and makes several housekeeping 
changes to the pelagic fishing regulations that are not related to 
Amendment 18.
    This final rule optimizes the U.S. harvest of swordfish and other 
fish species, without jeopardizing the continued existence and recovery 
of threatened and endangered sea turtles and other protected species. 
The final rule relieves the burden on fishermen of providing written 
notice each year to obtain shallow-set certificates, and reduces the 
administrative burden of processing and issuing certificate requests, 
and monitoring certificate usage. This will allow an increase in 
fishing effort to optimize the harvest of North Pacific swordfish and 
other fish species, but will not exceed maximum sustainable yields.
    Under this final rule, the Hawaii longline fleet may not interact 
with (hook or entangle) more than 46 loggerhead sea turtles or 16 
leatherback sea turtles each year. These sea turtle interaction limits 
do not represent the upper limit of interactions that would avoid 
jeopardizing the continued existence of sea turtles, but are the annual 
number of sea turtle interactions

[[Page 65461]]

anticipated to occur in the Hawaii shallow-set fishery. The interaction 
limits allow for growth of the fishery without appreciably reducing the 
likelihood of both the survival and recovery of the loggerhead and 
leatherback sea turtles. The final rule is not likely to cause 
significant adverse effects to marine mammals, migratory birds, 
essential fish habitat, or habitat areas of particular concern.
    All other measures that are currently applicable to the fishery 
remain unchanged, including but not limited to, limited access, vessel 
and gear marking requirements, vessel length restrictions, Federal 
catch and effort logbooks, 100-percent observer coverage, large 
longline restricted areas around the Hawaiian Archipelago, vessel 
monitoring system (VMS), annual protected species workshops, and the 
use of sea turtle, seabird, and marine mammal handling and mitigation 
gear and techniques. The fishery will be closed for the remainder of 
the calendar year if either interaction limit is reached. A range of 
management alternatives was identified during the development of this 
action, as described in the summary of the SEIS in the Classification 
section of the proposed rule published on June 19, 2009 (74 FR 29158).
    This final rule removes the annual limits on shallow-set fishing 
effort and the requirements of the shallow-set certificate program 
found at 50 CFR 665.33, the related prohibitions at 50 CFR 665.22, and 
the definition of a shallow-set certificate found at 50 CFR 665.12. The 
annual limits for sea turtle interactions are revised in 50 CFR 665.33. 
Also in that section, the Regional Administrator is required to publish 
an annual notification in the Federal Register of the applicable annual 
sea turtle interaction limits, and if an interaction limit is exceeded 
in any one calendar year, the annual limit for that sea turtle species 
would be adjusted downward the following year by the number of 
interactions by which the limit was exceeded.
    In addition to modifications to the shallow-set effort and turtle 
interaction measures, this final rule makes several technical 
clarifications to the longline regulations that are unrelated to 
Amendment 18. First, this final rule clarifies the technical 
specifications regarding required circle hooks. In a final rule 
published on November 15, 2005, NMFS implemented a requirement for 
Hawaii-based shallow-set longline fishermen to use circle hooks of size 
18/0 or larger with an offset of 10 degrees (70 FR 69282). The wording 
of this requirement was intended to mirror the requirement for Atlantic 
longline fishing, which require the use of circle hooks with an offset 
not to exceed 10 degrees (69 FR 40734; July 6, 2004). The November 2005 
final rule for the western Pacific shallow-set fishery inadvertently 
omitted the phrase ``not to exceed.'' This final rule corrects that 
error. The result is that shallow-set longline fishermen may use hooks 
with a range of offsets from zero to 10 degrees.
    The second technical change to longline regulations clarifies the 
requirement to carry line clippers, including the design 
specifications, on vessels registered for use under a Hawaii longline 
limited access permit. On March 28, 2000, NMFS published a final rule 
that implemented several measures designed to mitigate injuries to sea 
turtles by the Hawaii longline pelagic fishery, including requirements 
to carry and use line clippers, dip nets, and dehookers (65 FR 16347). 
In a subsequent final rule relating to sea turtle mitigation measures 
(70 FR 69282, November 15, 2005), the requirements in 50 CFR 665.32 
specifically relating to line clippers were inadvertently omitted. This 
final rule corrects that error. The corrected regulation requires 
fishermen to carry on board their vessels and use line cutters meeting 
NMFS design specifications. The final rule also redesignates several 
paragraphs in 50 CFR 665.32 for organizational clarity.
    In the third technical clarification, this final rule removes the 
text of two regulations that were previously superseded by more 
stringent regulations. In 50 CFR 665.22, paragraph (gg) prohibits 
shallow-set longline fishing from a vessel registered for use under a 
Hawaii longline limited access permit north of the Equator with hooks 
other than circle hooks. That paragraph was superseded by paragraph 
(jj), which prohibits such fishing from a vessel registered under any 
western Pacific longline permit. Similarly, paragraph (hh) prohibits 
shallow-set longline fishing from a vessel registered for use under a 
Hawaii longline limited access permit north of the Equator with bait 
other than mackerel-type bait. That paragraph was superseded by 
paragraph (kk), which prohibits such fishing from a vessel registered 
for use under any western Pacific longline permit. Thus, paragraphs 
(gg) and (hh) are removed.
    A fourth technical clarification was made to the high seas fishing 
regulations to correct a reference to western Pacific domestic fishing 
regulations. In 50 CFR 300, paragraph (1)(v) incorrectly refers to 
Pacific longline reporting requirements at 50 CFR 660.14. This 
reference was corrected to refer to the requirements at 50 CFR 665.14.
    Additional background information on this final rule may be found 
in the preamble to the proposed rule, and is not repeated here.

Comments and Responses

    On June 19, 2009, NMFS published a proposed rule and request for 
public comment (74 FR 29158). The public comment period ended on August 
3, 2009. NMFS received public comments, and responds as follows (note 
that references cited may be found in Amendment 18 and the final 
supplemental environmental impact statement (FSEIS), and are not 
repeated here):
    Comment 1: Expansion of the Hawaii-based shallow-set longline 
fishery would violate the Endangered Species Act (ESA) and would 
contribute to the extinction of sea turtles.
    Response: This rule is consistent with the ESA. The ESA requires 
each Federal agency to ensure that any action they authorize, fund, or 
carry out is not likely to jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of critical habitat of such species. Federal 
regulations implementing the ESA (50 CFR 402; July 3, 1986) define the 
term ``jeopardize the continued existence of'' to mean engaging in an 
action that reasonably would be expected, directly or indirectly, to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species.
    NMFS is required under ESA section 7 to consult on Federal actions 
affecting ESA-listed marine species. On October 15, 2008, NMFS issued a 
Biological Opinion (2008 BiOp) to determine whether removing the annual 
limit on fishing effort of the Hawaii-based shallow-set longline 
fishery (the Federal action) is likely to jeopardize the continued 
existence of any ESA-listed species. The 2008 BiOp, which utilized the 
best available scientific information, analyzed the effects of the 
continued operation of the Hawaii-based shallow-set longline fishery 
based on an effort level of 5,550 sets annually, or over 4.6 million 
hooks. The opinion concluded that the action is not likely to 
jeopardize the continued existence of any ESA-listed species. Critical 
habitat has not been designated in the action area, so no critical 
habitat would be affected by the action. The action does not jeopardize 
the continued existence of any ESA-listed species, and therefore, does 
not violate ESA, nor would it contribute to

[[Page 65462]]

the extinction of any sea turtle species. The 2008 BiOp is available on 
the NMFS Pacific Islands Regional Office website.
    Comment 2: Given declines to both leatherbacks and loggerheads in 
the Pacific, increasing sea turtle interaction limits is inappropriate. 
The fact that the existing bycatch limit of 17 loggerheads does not 
approach the ``upper limit'' of a jeopardy determination is not 
justification for pushing takes to a point that more closely approaches 
jeopardy to the species. NMFS has proposed to increase the turtle 
mortality to levels that now more closely approach jeopardy. The ESA 
requires NMFS to ensure that the sea turtle populations not only 
survive but continue to recover; therefore, NMFS should take the most 
risk-averse approach to managing interacting fisheries.
    Response: See response to Comment 1 for ESA requirements. The ESA 
allows for the incidental taking of listed species under certain 
conditions. The 2008 BiOp concluded that removing the annual limit on 
fishing effort is not likely to jeopardize the continued existence or 
recovery of any ESA-listed species. While this action could potentially 
result in the incidental take of individuals of several listed species 
through incidental hooking or entanglement, Section 7 of the ESA allows 
for taking of ESA-listed species that is incidental to, and not 
intended as part of an action, if the action is not likely to 
jeopardize the species, and such taking is in compliance with an 
incidental take statement (ITS) in a Biological Opinion.
    In the 2008 BiOp, NMFS estimated the Hawaii shallow-set longline 
fishery could make 2,120 to 5,550 sets annually. Based on sea turtle 
interaction rates observed in the fishery from 2004 to 2008, NMFS 
further estimated 19 leatherback and 46 loggerhead turtle interactions 
could occur as the fishery increases. The 2008 BiOp concluded that the 
estimated number of interactions with leatherback and loggerhead sea 
turtles is not likely to jeopardize the continued existence (including 
survival and recovery) of these species.
    The ITS in the 2008 BiOp requires NMFS to (1) establish annual 
interaction limits for loggerhead and leatherback turtles such that the 
fishery is closed when either interaction limit is reached, (2) 
implement a 3-year ITS to trigger reinitiating consultation, (3) 
collect data on the capture, injury, and mortality of sea turtles and 
life-history information, (4) require that sea turtles captured alive 
be released from fishing gear in a manner that minimizes injury, (5) 
require comatose or lethargic sea turtles to be retained on board, 
handled, resuscitated, and released according to established 
procedures, and (6) require sea turtles that are dead when brought 
aboard a vessel, or that do not resuscitate, be disposed of at sea 
unless NMFS requests retention of the carcass for sea turtle research.
    The ITS established the annual interaction limit for loggerhead 
turtles at 46. Out of an abundance of caution due to concerns about the 
likely decline of the Western Pacific leatherback population, the 
annual interaction limit for leatherback sea turtles was retained at 
the current level of 16. These annual interaction limits are not 
intended to represent the upper limit of interactions that would avoid 
jeopardizing the continued existence of sea turtles, but instead are 
the annual number of sea turtle interactions anticipated to occur in 
this fishery. Although the annual sea turtle interaction limits are 46 
and 16, for loggerhead and leatherback turtles, respectively, the 
predicted mortalities (based on 100 percent observer data) at the 
interaction limits would be three adult female loggerhead and two adult 
female leatherback sea turtles, the effects of which would be 
indistinguishable from natural mortality. It is important to note that 
continued comprehensive observer coverage allows for immediate 
observations and response (i.e., fishery closure) to turtle 
interactions exceeding established limits. Proven sea turtle mitigation 
measures, such as large circle hooks and mackerel-type bait, as well as 
other regulatory measures, will remain in effect. Also see responses to 
Comments 46 and 61 regarding the 2008 BiOp analyses and no jeopardy 
determination.
    Comment 3: Managers should be developing measures to further reduce 
loggerhead sea turtle take in U.S. fisheries, not increase them.
    Response: NMFS and the Council, working with the Hawaii longline 
fleet, continue to make significant progress in reducing sea turtle 
take in the Hawaii-based shallow-set longline fishery. Development and 
implementation of sea turtle mitigation measures in 2004, such as 
requiring the use of circle hooks and mackerel-type bait has reduced 
sea turtle interaction rates by approximately 90 percent for 
loggerheads and 83 percent for leatherbacks compared to 1994-2002 when 
the fishery operated without these requirements.
    NMFS continues to support the development and research of improved 
bycatch mitigation measures and new technologies such as TurtleWatch, a 
mapping product which provides up-to-date information about the thermal 
habitat of loggerhead sea turtles in the Pacific that fishermen can use 
to deploy their fishing gear in areas where loggerheads are less likely 
to occur, and ultimately decrease the number of fishery interactions.
    Comment 4: The post-hooking mortality rates of 20.5 percent for 
loggerheads and 22.9 percent for leatherbacks may be seriously 
underestimated for the Hawaii-based shallow set fishery, as turtles 
released with substantial amounts of gear attached are more likely to 
perish from line ingestion, strangulation, or as a result of 
amputation. Observers reported that nearly half the leatherbacks 
encountered were externally hooked and released with the hook and 
substantial amounts of line still attached.
    Response: The post-hooking mortality rates used in the effects 
analysis, as described in Section 3.3.1.7.1 of the FSEIS, were derived 
from a NMFS workshop (Ryder et al. 2006) that developed criteria for 
assigning post-hooking mortality values based upon identified 
variables, including hook placement, degree of entanglement, and 
physical condition. Recent NMFS research using satellite tags on 
loggerhead turtles suggests that the loggerhead post-release mortality 
rate may be approximately half of those used in the effects analysis of 
the FSEIS, and may only be about 9.5 percent of all interactions. Given 
this study's wide confidence intervals, which overlapped the post-
hooking mortality values used in the effects analysis of the FSEIS, 
NMFS relied on a conservative and established approach for applying its 
guidance on sea turtle post-hooking mortality rates in developing the 
FSEIS. Therefore, the mortality rates do not appear to be seriously 
underestimated.
    NOAA is committed to investigating potential violations of ESA 
provisions related to sea turtles and will take appropriate enforcement 
action where warranted by the facts. NMFS continues to have confidence 
in the accuracy of observer data, and assigns turtle post-hooking 
mortality values in accordance with the observers' accounts using 
published criteria in Ryder et al. (2006). Fishermen are instructed 
annually at required protected species workshops to remove as much 
fishing gear as possible from any incidentally caught sea turtle, 
marine mammal, or seabird to reduce the likelihood of further injury or 
mortality.
    Comment 5: NMFS should motivate fishermen to keep their 
interactions low by maintaining the current cap. The motivational value 
of a low cap was

[[Page 65463]]

demonstrated in 2007 when fishermen first ignored the TurtleWatch 
product, but then used it effectively as the fleet approached the cap. 
In their review of the effectiveness of circle hooks in the Hawaii-
based swordfish shallow set fishery, Gilman et al. (2007) suggest that 
turtles aggregate at foraging grounds (and are often caught in 
clusters) and recommend measures to avoid real-time turtle hot spots to 
further reduce turtle interactions. Tripling the cap will undermine 
efforts to keep interactions low and remove the motivation to fishermen 
to safeguard these species.
    Response: Limiting the annual interaction limit for loggerhead 
turtles to 46 does not undermine efforts to minimize sea turtle 
interactions in this fishery, nor does it remove the motivation of 
fishermen to safeguard these species. It is expected that fishermen 
will continue to keep interactions with protected species to a minimum 
to continue fishing sustainably and prevent a fishery closure, which is 
economically harmful to fishery participants and disrupts markets that 
rely on Hawaii swordfish. Annual interaction limits are based on 2004-
08 interaction rates, and estimated post-hooking mortality rates of 
loggerheads and leatherbacks in the Hawaii shallow-set longline 
fishery. Additionally, the leatherback sea turtle interaction limit 
will remain at 16, and could potentially be a greater limiting factor 
than loggerheads.
    Consistent with the 2008 BiOp, NMFS has recommended the 
continuation of the TurtleWatch program. Additional descriptive 
information on this program and other NMFS sea turtle programs and 
research is in Section 4.4.2.1.2 of the FSEIS. There is no evidence 
that fishermen used TurtleWatch to avoid sea turtle interactions in 
2007.
    Proven turtle mitigation measures and hard caps contained in the 
preferred alternative provide protection to sea turtles. NMFS continues 
to study sea turtles, including research on their preferred habitats 
and fishery interactions, and will continue to research effective 
management options.
    Comment 6: The final rule would increase the annual discard 
mortality by 133 percent.
    Response: As described in the FSEIS, fish bycatch in the Hawaii-
based shallow-set longline fishery is estimated to be limited to 6-7 
percent of the annual catch. Since no other significant changes are 
occurring in the fishery, there is no indication that removing the 
annual set limit would increase the mortality rates of any bycatch 
species. No increased mortality of protected species should occur as 
proven mitigation gear and techniques will continue to be required in 
the fishery.
    Comment 7: Increasing the Hawaii shallow-set longline fishery would 
increase fishing pressure on swordfish, and thus, would violate the 
Magnuson-Stevens Act as the act requires fisheries managers to end 
overfishing and safeguard swordfish at present quotas.
    Response: North Pacific swordfish are managed under the Western 
Pacific Pelagics FMP and there are no quotas or catch limits for 
swordfish. The most recent applicable stock assessments for North 
Pacific swordfish indicate that this stock is not overfished or subject 
to overfishing, and is not approaching either condition. Kleiber and 
Yokawa (2004) provided the stock assessment for North Pacific 
swordfish, and estimated the MSY at 22,284 mt. Results of this 
assessment suggest that the population in recent years is well above 50 
percent of the unexploited biomass, implying that swordfish are healthy 
and not over-exploited, and are relatively stable at the current levels 
of fishing effort. Current domestic and foreign harvests of this stock 
amount to approximately 14,500 mt, roughly 65 percent of the MSY. Wang 
et al. (2007) found that the spawning stock biomass of swordfish in the 
North Pacific is currently at a fairly high fraction of its initial 
level and that the spawning stock biomass-per-recruit under current 
exploitation rates is higher than that corresponding to the maximum 
sustainable yield. Wang et al. (2007) also note that recent stock 
assessments of swordfish in the North Pacific indicate that this stock 
is not over-exploited and that it has been relatively stable at current 
levels of exploitation. The Hawaii-based shallow-set longline fishery's 
projected harvest of approximately 4,808 mt if 5,500 sets are utilized 
will not overfish or contribute to overfishing of swordfish. 
Furthermore, a 2009 International Scientific Committee swordfish stock 
assessment concluded that western and central Pacific Ocean (WCPO) and 
eastern Pacific Ocean (EPO) stocks of swordfish are healthy and well 
above the level required to sustain recent catches.
    Comment 8: Many target and non-target species harvested by the 
Hawaii-based longline fishery, including bigeye and yellowfin tuna, are 
either overfished or approaching an overfished condition, or lack 
sufficient data to determine whether their populations are healthy and 
sustainable. Allowing the fishery to expand would violate Federal laws 
and international agreements, which require fishery managers to end 
overfishing immediately and rebuild overfished populations.
    Response: No fish stock targeted or incidentally caught by the 
Hawaii shallow-set fishery is overfished, or approaching that 
condition. The Hawaii fleet targets North Pacific swordfish which have 
not been found by NMFS or any international management organizations to 
be overfished or subject to overfishing, or approaching either 
condition. For information about the maximum sustainable yield for 
North Pacific swordfish, see response to Comment 7.
    Pacific-wide bigeye tuna was determined in 2004 by NMFS to be 
subject to overfishing, but not overfished (69 FR 78397, December 30, 
2004). In that determination, NMFS recognized that Pacific bigeye tuna 
occur in the waters of multiple nations and on the high seas, and is 
fished by the fleets of other nations in addition to those of the 
U.S.A. Multilateral action is essential to ensure that overfishing of 
bigeye tuna in the Pacific Ocean ends, although U.S. fisheries comprise 
a very small portion of Pacific-wide bigeye tuna harvests (less than 3 
percent in 2004). In 2007, NMFS approved the Council's recommendation 
to develop, support and implement recommendations made by international 
regional fishery management organizations (RFMO, such as the Western 
and Central Pacific Fisheries Commission (WCPFC) and the Inter-American 
Tropical Tuna Commission (IATTC)) to address overfishing of bigeye 
tuna.
    Furthermore, the final rule will likely increase participation in 
the shallow-set fleet that targets swordfish, thereby shifting effort 
away from bigeye and yellowfin tuna that are targeted by the deep-set 
fleet. (The Hawaii longline fisheries are limited to 164 vessels, 
combined.) Pursuant to the Western and Central Pacific Fisheries 
Convention Implementation Act, NMFS and the Council have been working 
with the WCPFC to address the bigeye tuna overfishing issue on an 
international scale. The WCPFC adopted Conservation and Management 
Measure (CMM) 2008-01 designed to maintain or restore stocks at levels 
capable of producing maximum sustainable yield, as qualified by 
relevant environmental and economic factors. NMFS implemented a final 
rule (74 FR 38544, August 4, 2009) and has proposed rulemaking (74 FR 
32521, July 8, 2009) to implement CMM-2008-01 for 2009 to reduce the 
bigeye tuna fishing mortality rate in the WCPO. The highest expected 
annual fishing mortality of bigeye tuna by the Hawaii shallow-set 
fishery using 5,500 sets is 0.29 percent of estimated

[[Page 65464]]

maximum sustainable yield for bigeye tuna in the WCPO.
    WCPO yellowfin is no longer considered to be subject to 
overfishing, based on recent stock assessments. In 2004, U.S. fisheries 
were estimated to be responsible for less than four percent of all WCPO 
yellowfin harvests, with the majority of these made by tuna purse seine 
vessels. A recent IATTC resolution (C-09-01) is applicable in 2009-11 
for all large U.S. longline vessels (over 24 meters length overall), 
that fish for yellowfin, bigeye and skipjack tunas in the EPO. In 
reference to the U.S.A., they shall ensure that their total annual 
longline catches of bigeye tuna not exceed 500 metric tons. NMFS has 
implemented (74 FR 38544, August 4, 2009) the CMM for 2009 to prevent 
increases in the yellowfin tuna mortality rate in the WCPO. For 
yellowfin tuna, the highest expected annual fishing mortality from 
5,500 sets is approximately 0.004 percent of WCPO yellowfin MSY. 
Neither bigeye nor yellowfin tuna estimates of potential fishing 
mortality from 5,500 sets include percentages of MSY estimates from the 
EPO. That is, the estimates of catch compared to the MSY are calculated 
from fishing within the WCPO only (150[deg] W or further west). The 
fishery does occasionally operate east of the 150[deg] W longitude, 
separating the two RFMO jurisdictions (WCPFC and IATTC). The fishery 
would likely catch a small unknown percentage of their annual catch of 
bigeye and yellowfin tuna from the EPO, thereby reducing the already 
low percentages of MSY from the WCPO.
    Comment 9: The removal of the shallow-set fishery effort limit, 
increased pressure on overfished and data-poor fish species, and 
increased take of protected species are wholly unjustified.
    Response: See the responses to Comments 1, 2, 7, and 8 for 
justification of the sustainable increase of Hawaii-based shallow-set 
longline swordfish fishery.
    Comment 10: Since the annual set limit has never been reached, 
there currently are unused set limit allocations available to any 
fishermen who wish to use them. As such, there is no immediate need to 
open the swordfish fishery, much less propose an unlimited effort, and 
try to encourage fishermen to switch between target fisheries. If the 
tuna fishermen wish to move into the swordfish fishery now, they can.
    Response: Hawaii longline permit holders who need shallow-set 
certificates for the next calendar year must notify the Pacific Islands 
Regional Office (PIRO) of their interest by November 1 of the fishing 
year. Each permit holder meeting the November 1 deadline receives one 
share for each Hawaii longline permit they hold. The 2,120 certificates 
are divided by the total number of shares and rounded down to the 
nearest whole number. The resulting number is the number of 
certificates issued to each share.
    Shallow-set certificates are freely transferable to another Hawaii 
longline permit holder; however, certificates are typically sold by 
fishermen that do not participate in the shallow-set fishery, thus 
adding another layer of complexity for shallow-set fishermen to obtain 
an economically feasible number of certificates. While the current 
annual set limit of 2,120 has not been reached since the program's 
inception in 2004, this limit does not promote, on a continuing basis, 
optimal yield from the swordfish fishery in accordance with the 
Magnuson-Stevens Act's National Standard 1. Accordingly, the 
continuation of the set certificate program may be expected to 
unnecessarily limit fishing effort.
    In addition, the set certificate program is an unnecessary 
administrative burden and cost to taxpayers. The final rule will enable 
the fishery to achieve optimum yield, while at the same time reducing 
costs and avoiding jeopardy to ESA-listed species. Current fishing 
effort limits and associated set certificates have been used to 
indirectly control turtle interactions. The use of interaction limits 
for turtles, in conjunction with other existing regulatory measures, 
have proven to be effective in reducing interactions. NMFS will 
continue to monitor the fishery with 100 percent observer coverage and 
is confident that this will provide complete fishery information.
    Comment 11: Proposing to close a fishery based solely on endangered 
species interactions, with no limit on sets or effort (in other words, 
without having anything to do with the fish stock), is no way to manage 
a fishery.
    Response: This fishery is being managed with many other measures, 
in addition to limits on sea turtle interactions. Moreover, closing a 
regulated fishery, like the Hawaii-based shallow-set longline fishery, 
based on threatened and endangered species interactions is prudent and 
reasonable given the intent of Amendment 18 and the final rule to 
achieve optimal yield from the fishery. The shallow-set longline 
fishery will continue to be monitored and assessed for its impact on 
pelagic management unit species.
    The Magnuson-Stevens Act broadly gives the Councils and NMFS the 
authority to undertake appropriate measures to control bycatch. 
National Standard 9 requires that the Councils and NMFS develop 
conservation and management measures which ``shall, to the extent 
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot 
be avoided, minimize the mortality of such bycatch.'' Under the 
Magnuson-Stevens Act, turtles are included in the definition of 
bycatch. In addition, in the recent Magnuson-Stevens Act 
reauthorization, Congress added an extensive provision creating a 
Bycatch Reducton Engineering Program which specifically authorized 
Councils and NMFS to take action to ``incorporate bycatch into quotas, 
including the establishment of collective or individual bycatch 
quotas.'' As a result, a number of fisheries are constrained through 
bycatch caps. The Magnuson-Stevens Act action establishing a bycatch 
cap often involves setting a limit on the specific number of animals 
from a prohibited species that may incidentally be caught (although not 
retained) before fishing operations must cease. Therefore, it is a 
permissible action under the Magnuson-Stevens Act to establish a limit 
on the number of turtles (or any other species) that can be caught as 
bycatch in a fishery.
    Sustainable harvests of North Pacific swordfish are possible up to 
an MSY of about 22,284 mt. The current annual swordfish catch by the 
Hawaii-based shallow-set fishery ranges from 850 to 1,637 mt, 
(1,861,391 to 3,602,339 lb) and the amount of effort to catch 7,784 mt 
of additional swordfish would be about 9,925 total sets per year if the 
Hawaii longline fishery were to fish the North Pacific swordfish stock 
up to the level of the MSY. The sea turtle interactions limits are set 
to protect those stocks from being jeopardized. The fishery would close 
if either of these interaction limits were reached.
    Comment 12: The impact analysis of the proposed action seems to 
down-play risks to a variety of species including false killer whales, 
humpback whales, and sea turtles. The current mortality limits were set 
in face of an acknowledged lack of information on sea turtle stock 
structure, population estimates and bycatch in non-US fisheries.
    Response: In the 2008 BiOp, NMFS determined that the level of 
incidental take anticipated from the final rule is not likely to 
jeopardize the humpback whale, loggerhead turtle, leatherback turtle, 
green turtle, olive ridley turtle, or hawksbill turtle. While the final 
rule is not expected to jeopardize leatherback turtles, NMFS is 
concerned about the decline of the Western Pacific

[[Page 65465]]

leatherback population. The lack of information on this population 
means that it could be worse off than it appears. For these reasons, a 
cautionary approach is warranted, and NMFS did not propose increasing 
the annual interaction limit for leatherback turtles. That limit 
remains at the current limit of 16, rather than the expected incidental 
take of 19 leatherbacks.
    Comment 13: NMFS should adopt a precautionary approach and support 
the ``no action'' alternative.
    Response: Amendment 18 was approved by the Secretary of Commerce on 
June 17, 2009. The actions approved in the Amendment remove fishing 
effort limits, and increase the annual loggerhead sea turtle 
interaction limit to 46 interactions (the current limit of 16 
interactions with leatherback sea turtles remains unchanged), and 
discontinue the set certificate program.
    Interaction limits for the shallow-set longline fishery were 
established using the best available science, which included data from 
100 percent observer coverage since 2004. Fishery interaction and 
estimated mortality rates were used to determine the annual limits on 
the fishery. Where information was not as readily available, a more 
conservative approach was utilized. For instance, the 2008 BiOp noted 
this in relation to the proposed increase in the leatherback sea turtle 
interaction limit. While the proposed increase to 19 annual 
interactions did not reach a jeopardy threshold, due to a lack of 
information and the population status of Western Pacific leatherbacks 
at known nesting beaches, a more conservative measure is implemented to 
restrict the allowable annual interactions to 16 due to a lack of 
information and the population status of Western Pacific leatherbacks.
    Comment 14: Increasing the loggerhead sea turtle interaction limit 
from 17 to 46 would violate the requirement of the Magnuson-Stevens Act 
to minimize bycatch to the extent practicable.
    Response: National Standard 9 requires conservation and management 
measures, to the extent practicable, to minimize bycatch and to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch. The use of circle hooks and mackerel-type bait in Hawaii's 
shallow-set longline fishery has reduced sea turtle interaction rates 
by approximately 90 percent for loggerheads and 83 percent for 
leatherbacks compared to 1994-2002, when the fishery was operating 
without these requirements (Gilman et al. 2007). Gilman et al. (2007) 
also showed that the incidents of serious injury, e.g., the number of 
deeply-hooked sea turtles have been greatly reduced. Additionally, 
handling and release requirements are used to reduce sea turtle 
mortality. These requirements will not change as a result of this final 
rule. Bycatch of ESA-listed humpback whales, loggerhead sea turtles, 
leatherback sea turtles, olive ridley sea turtles, green sea turtles, 
and hawksbill sea turtles is not likely to reduce appreciably the 
likelihood of both the survival and recovery of a listed species in the 
wild by reducing the reproduction, numbers, or their distribution.
    Comment 15: NMFS should maintain 100 percent observer coverage of 
the shallow-set longline fleet and continue to improve the real-time 
reporting of marine mammal and sea turtle interactions to ensure that 
interaction limits are not exceeded.
    Response: Existing management measures will be maintained, 
including 100 percent observer coverage and real-time reporting of sea 
turtle interactions. Each observer is issued a satellite telephone, and 
may also use the vessel's marine radio to ensure timely reporting of 
all sea turtle interactions. NMFS has established electronic logbook 
reporting mechanisms to enable timely reporting for the Hawaii pelagic 
longline fleet. The PIRO Observer Program is actively preparing for the 
potential shallow-set fishery expansion, and subsequent requirement of 
additional observer coverage.
    Comment 16: Expansion of the Hawaii shallow-set longline fishery 
would violate the Marine Mammal Protection Act (MMPA), because NMFS has 
not proposed or issued a decision and related authorizations for 
incidental take of humpback whales.
    Response: A marine mammal species that is listed as threatened or 
endangered under the ESA is, by definition, also considered strategic 
under the MMPA. The ESA allows taking of threatened and endangered 
marine mammals only if authorized by section 101(a)(5) of the MMPA. 
That is, the incidental taking of ESA-listed marine mammals must first 
be authorized under section 101(a)(5)(E) of the MMPA before it can be 
authorized by the ESA. Because incidental take of humpback whales has 
not been authorized under the MMPA for the action, the 2008 BiOp could 
not authorize incidental take of this species. However, NMFS has 
initiated the humpback whale MMPA 101(a)(5)(E) authorization process 
for the Hawaii-based longline shallow-set fishery.
    Using annual interaction rates, the 2008 BiOp predicted this action 
would result in up to three interactions between humpback whales and 
the shallow-set fishery each year. Based on mortality estimates used in 
the 2008 BiOp, Chapter 4 of the FSEIS was revised to include an 
estimated 25 percent post-interaction mortality rate, resulting in up 
to one humpback whale mortality every year. As discussed in the 2008 
BiOp, NMFS does not expect this to jeopardize the continued existence 
or recovery of the North Pacific humpback whale population. NMFS is in 
the final determination process on whether or not U.S. Federal 
fisheries have a negligible impact on the North Pacific Stock of 
humpback whales. This stock is currently estimated at 18,000 animals 
and available information indicates that it is increasing by at least 
6.8 percent per year as result of international and Federal 
protections.
    Comment 17: There is no exclusion in the ESA for beneficial 
conservation measures that offset fisheries incidental take, which is 
contrary to the ESA and the Administrative Procedure Act, and a 
misguided disincentive for fisheries to engage in beneficial 
conservation activities.
    Response: While the Council's conservation projects are not a part 
of the current Federal action, in evaluating the status of species 
affected by an action under ESA Section 7 consultation, NMFS considers 
the beneficial impacts of conservation activities that may improve 
species status. Such measures must be reasonably likely to occur to 
make a quantitative or qualitative assessment. NMFS also considers 
conservation measures that are part of a proposed action in its effects 
analyses in Section 7 consultations. The Federal fishery action and the 
Council's conservation measures are two different actions with regard 
to ESA Section 7. For example, the issuance of Federal fishing permits 
for Hawaii-based longline fishing is a distinct action, separate from 
granting funds to support turtle conservation measures in Japan, 
Mexico, and Indonesia. The action areas for the conservation measures 
and for longline fishing are geographically separate.
    Comment 18: NMFS implemented a reasonable and prudent measure (RPM) 
that causes more than a minor change in the proposed action (i.e., that 
reduces authorized leatherback sea turtle takes from 19 to 16 
annually).
    Response: The ESA Section 7 regulations define reasonable and 
prudent measures as those actions necessary or appropriate to minimize 
the impacts of incidental take resulting from a no-jeopardy action 
(402.02), and stipulate that a reasonable and prudent

[[Page 65466]]

measure cannot alter the basic design, location, scope, duration, or 
timing of the action and involve only minor changes (402.14). Because 
of the apparently declining population of Western Pacific leatherback 
turtles, NMFS exercised its discretion to minimize incidental take of 
this species associated with the action. The reduction in the proposed 
leatherback take from 19 to 16 annually does not alter the basic 
design, location, scope, duration, or timing of the action.
    Comment 19: Would the associated take permits and authorizations 
under the MMPA and ESA change with implementation of this rule?
    Response: MMPA take authorizations will not change as a result of 
the final rule, and no new permits or authorizations will be required. 
The Marine Mammal Authorization Program (MMAP) participation is part of 
the Hawaii longline limited entry permit issuance, and qualifies for 
commercial take exemption. The action was analyzed for potential impact 
to ESA-listed species. The 2008 BiOp issued on the action determined 
there would be no jeopardy to the survival and recovery of any ESA-
listed species.
    Comment 20: Existing gear and bait technologies employed in the 
Hawaii shallow-set longline fishery, which have been proven successful 
in Atlantic experiments, have not yet been proven enough in this 
fishery to warrant a dramatic increase in potential endangered species 
takes and unlimited effort that this proposal entails.
    Response: The Hawaii-based shallow-set longline fishery began in 
late 2004 to test the effectiveness in the Pacific of a combination of 
circle hooks and mackerel-type bait, which successfully reduced 
interactions with leatherback and loggerhead sea turtles in the 
Atlantic. This resulted in a data set of 4,638 shallow sets (with 100 
percent observer coverage).
    To test the gear combination's effectiveness, fishing effort in the 
model Hawaii fishery was limited to 2,120 sets, roughly 50 percent of 
the 1994-99 annual average number of sets. As an additional safeguard, 
an annual limit was implemented on the number of unintended 
interactions with sea turtles that could occur in the shallow-set 
fishery. The limit was calculated by multiplying the number of sets, 
2,120, by sea turtle interaction rates in the Atlantic experiments. The 
fishery would be closed for the remainder of the calendar year if 
either interaction limit was reached. Since the fishery reopened in 
2004, sea turtle interactions in the Hawaii shallow-set longline 
fishery have been successfully reduced by a combined 89 percent 
compared to 1994-2002 when the fishery was operating without these 
requirements. Furthermore, since 2004, all sea turtles that have 
interacted with the Hawaii-based shallow-set fishery have been released 
alive.
    The best available scientific information indicates that the 
action, with continuation of existing and effective sea turtle and 
seabird mitigation measures, and 100 percent observer coverage, will 
not jeopardize the continued existence and recovery of any protected 
species populations, or result in overfishing or overfished conditions 
of any target or non-target stocks. Section 4.0 of the FSEIS includes a 
description of the analytical methodology used in the analysis. The 
data used in the analysis are sufficient to present the potential 
impacts of the alternatives considered. Interaction rates are 
significantly lower than in the past; however, no single mitigation 
measure is completely effective. Annual interaction limits provide an 
additional level of confidence that fishery interactions do not exceed 
authorized levels.
    Comment 21: Should the longline fishery seriously injure or kill a 
humpback from the Central North Pacific stock of humpback whales, the 
potential biological removal (PBR) for the SE Alaska portion of the 
stock will likely be equaled. This is not discussed in the 2008 BiOp, 
but it should have been.
    Response: Discussion of PBR calculations were outside the scope of 
the effects analysis of the 2008 BiOp because PBR is a construct of the 
MMPA, not the ESA. Mortality estimates are published in the annual 
Stock Assessment Report (SAR). The draft 2009 SAR was available for 
public comment (74 FR 30527, June 26, 2009). In this rule, NMFS cannot 
assume how additional takes in the Hawaii-based shallow-set longline 
fishery will affect the PBR levels. The effects analyses in the FSEIS 
and the 2008 BiOp did quantify the potential number of interactions 
with humpback whales at the projected maximum number of sets.
    Comment 22: There are likely to be adverse impacts from the 
preferred alternative to either the insular or pelagic stocks of false 
killer whales, and those impacts appear to be inappropriately 
minimized. The lack of observed interactions, on which NMFS' conclusion 
regarding impacts is based, is in part an artifact of low observer 
coverage and very limited effort; and that effort is now proposed to be 
dramatically increased. Given the very low PBR levels for these stocks, 
and the fact that the insular stock appears to be declining and the PBR 
for the pelagic stock is being exceeded, NMFS' conclusion is incorrect 
that there is likely to be little impact to these stocks from a 
dramatic increase in sets and hooks.
    Response: The FSEIS impacts analysis included false killer whales 
using shallow-set fishery data obtained from 100 percent observer 
coverage. There have been four observed interactions since 1994 and 
only two observed interactions since the inception of 100 percent 
observer coverage when the shallow-set fishery was re-opened in 2004. 
The pelagic false killer whale stock is a strategic stock because of 
its interaction with the deep-set longline fishery, which is not the 
subject of this final rule. Also see response to Comment 49 for 
shallow-set fishery-related marine mammal interactions.
    The shallow-set fishery rarely interacts with false killer whales. 
Based on sighting locations and genetic analysis of tissue samples, the 
NMFS 2008 SAR applies an insular false killer whale stock boundary 
corresponding to the 25-75 nm longline prohibited area around the main 
Hawaiian Islands to recognize the insular false killer whale population 
as a separate stock for management. Based on the best available 
scientific information and as described in the SAR, interactions 
between the Hawaii-based longline fleet (both the shallow-set and deep-
set fisheries) and the Hawaii insular population of false killer whales 
is unlikely in the longline fishing prohibited area around the main 
Hawaiian Islands.
    Comment 23: A major consideration in the future of the North 
Pacific loggerhead is the reduction in numbers of juvenile foraging 
populations in Baja California, Mexico, with far fewer animals smaller 
than 50 cm than have been reported in the past. Continuing declines in 
juvenile foraging populations in Mexico may be manifesting themselves 
in the nesting beach data and the population could be declining at a 
much more rapid rate than the analyses here represent. Cumulative 
impacts should be considered when determining acceptable interaction 
levels.
    Response: The final rule will not jeopardize the continued 
existence or recovery of loggerhead populations; authorized 
interactions with loggerhead (46) and the expected resultant adult 
female mortalities (up to three per year) cannot be distinguished from 
the effects of natural mortality. Declines of juvenile loggerheads in 
Mexico are not exhibited in the Japanese nesting beach data.

[[Page 65467]]

Incomplete North Pacific loggerhead nesting beach data from 2008 
included in the FSEIS indicate a 55 percent increase in loggerhead 
nesting as compared to 2007. This information is in Table 19 of the 
FSEIS. Figure 18 shows the trend in loggerhead nesting, and was added 
to FSEIS Section 3.3.1.2.1. Nesting trends through 2008, presented by 
Dr. Yoshimasa Matsuzawa at the Symposium for North Pacific Loggerhead 
Turtle Conservation in Japan, convened in Kagoshima, Japan, December 7, 
2008, indicated a total of 10,847 nests. This is considerably higher 
than the 7,700 nests that the 2008 BiOp assumed before the nesting 
season was finished and all data compiled. Publications on the numbers 
of juvenile age class foraging populations in Mexico are not currently 
available. The current loggerhead sea turtle population is likely in a 
better condition than depicted by the analyses.
    The Council's ongoing sea turtle conservation projects are 
important to loggerhead conservation and survival. The 2008 BiOp 
included the following conservation recommendations for loggerhead sea 
turtles: (1) continuation of ongoing studies on the ecological, habitat 
use, and genetics of loggerhead turtles in nearshore waters around Baja 
California, Mexico, (2) gear mitigation studies for fisheries operating 
in these waters; (3) implementation of a trans-Pacific international 
agreement that would include relevant Pacific Rim nations in the 
conservation and management of sea turtle populations - specifically a 
Japan-U.S.A.-Mexico agreement for North Pacific loggerhead turtles, and 
(4) regional partnerships to implement long-term sea turtle 
conservation and recovery programs for critical nesting, foraging and 
migratory habitats.
    The 2008 BiOp, which was peer-reviewed, examined the preferred 
alternative under Section 7 of the ESA and relying on the best 
information available, concluded that the action limiting annual 
interactions to 46 loggerheads and maintaining the current interaction 
limit of 16 leatherbacks would not jeopardize the continued existence 
and recovery of those sea turtle populations. Furthermore, transferred 
effects from the action will likely benefit global sea turtle 
populations by reducing domestic consumption of fish harvested from 
foreign fisheries that do not employ proven turtle mitigation measures.
    Comment 24: The final rule would put leatherback turtles at greater 
risk of capture, because of the vulnerability to declining nesting 
populations of Western Pacific leatherbacks, as 75 percent of these 
turtles are concentrated in a few sites in Papua, Indonesia.
    Response: Estimates derived from Dutton et al. (2007) suggest that 
during 1999-2006, two-thirds of the nesting occurred in Papua, 
Indonesia, most of the remainder occurred in Papua New Guinea and the 
Solomon Islands, and a small fraction (about 1 percent) occurred in 
Vanuatu.
    The final rule removes the annual limit on fishing effort, thus 
allowing for optimum yield to be achieved in this fishery. NMFS 
estimates up to 5,550 sets to be made by the Hawaii shallow-set 
longline fishery annually. Based on sea turtle interaction rates 
observed in this fishery in 2004-08, NMFS estimates 5,550 sets would 
result in 19 leatherback interactions. However, due to concerns about 
the decline of the Western Pacific leatherback population, NMFS 
retained the annual interaction limit for leatherback sea turtles at 
16. This interaction limit is identical to the limit imposed on the 
fishery during 2004-08 and, therefore, the risk to leatherback turtles 
is not increased.
    Comment 25: Pacific leatherback populations have declined more than 
90 percent in the last several decades, and this rule would further 
threaten them.
    Response: The nesting beach trend is in decline at the only western 
Pacific nesting beach (Jamursba-Medi, Papua, Indonesia) where long-term 
leatherback nesting has been monitored. Other leatherback nesting 
beaches in the western Pacific may also be in decline, but there are no 
long-term nesting beach data to make a determination. As noted in 
Section 4.4.2.1.5 of the FSEIS, though greater numbers of nesting 
female leatherbacks have been discovered in the western Pacific, trend 
information is not available for these newly described nesting sites, 
thus no statements can be made describing the anticipated outlook 
(i.e., status) for these populations for which there are no trend data.
    The number of nesting female leatherbacks in the southwestern 
Pacific appears to be greater than previously stated in Spotila (1996) 
or NMFS (2004). However, the continuation of proven regulatory measures 
and associated conservation efforts is necessary. The final rule does 
not further threaten the Western Pacific leatherback, because there 
will be no change in the number of authorized interactions with 
leatherbacks (16) and the expected resultant adult female mortalities 
(up to two per year) cannot be distinguished from the effects of 
natural mortality. The 2008 BiOp indicated that this final rule will 
not jeopardize the continued existence or recovery of leatherback 
populations.
    Comment 26: Existing management of the shallow-set fishery is not 
likely to offer enough protection to sea turtle, marine mammal, and 
seabird species, and all of the proposed alternatives in the final rule 
are unacceptable, including the ``no action'' alternatives.
    Response: Sea turtle mitigation measures implemented in the fishery 
in 2004, such as the required use of circle hooks and mackerel-type 
bait, successfully reduced sea turtle interaction rates by 
approximately 90 percent for loggerheads and 83 percent for 
leatherbacks compared to the 1994-2002 when the fishery operated 
without these measures. The severity of the interactions has also been 
greatly reduced as indicated by the number of turtles that have been 
deeply vs. lightly hooked (Table 3, p. 14, FSEIS, Gilman and Kobayashi 
2007). Prior to the use of circle hooks and mackerel-type bait, 51 
percent of sea turtle interactions in the fishery from 1994-2002 were 
believed to have involved deeply hooked turtles. From May 2004 to March 
2007, fewer than 12 percent of the hooked sea turtles were classified 
as deeply-hooked.
    Shallow-set fishery interactions with marine mammals are rare and 
apparently random events. Accordingly, potential marine mammal 
protective measures for the Hawaii shallow-set fishery are limited, 
based on limited data. Data are collected on all marine mammal 
interactions and depredation events and analyzed for trends or patterns 
that could enlighten areas where mitigation efforts would be 
successful. In April 2009, NMFS began the process to develop a Take 
Reduction Plan (TRP) and assemble a Take Reduction Team (TRT). 
Implementation of the full TRT is subject to the availability of 
funding. Once a TRT is officially designated, the MMPA requires a draft 
TRP to be completed within six months. The scope of the TRP has not yet 
been established.
    Seabird mitigation requirements implemented in the fishery in 2001, 
such as the use of line shooters, weighted lines, side setting, night 
setting, and blue-dyed bait yielded a 96 percent reduction in the 
combined black-footed and Laysan albatross shallow-set interaction rate 
compared to 1994-98. The current seabird deterrent and mitigation 
measures remain in effect and are not affected by this final rule.
    Comment 27: Fishery managers and participants should not consider 
the sea turtle serious injury and mortality take limits to be an 
acceptable level of taking, or a quota, when recovery of these turtle 
stocks would be best

[[Page 65468]]

achieved by reducing the number of takes to the lowest possible level.
    Response: The loggerhead and leatherback sea turtle annual 
interaction limits are not regarded as a serious injury or mortality 
limit. A loggerhead or leatherback turtle hooked or entangled to any 
degree or manner counts against the annual limit. The 2008 BiOp 
determined that the effects of the action are likely to be 
indistinguishable from the effects of natural mortality. NMFS will 
continue to promote the recovery of loggerhead and leatherback sea 
turtles and will continue to require the use of proven regulatory 
measures for turtles, such as large circle hooks, mackerel-type bait, 
handling and resuscitation techniques, and annual protected species 
workshops. Additionally, NMFS continues to support the Council's sea 
turtle nesting beach projects to protect Western Pacific leatherback 
turtles in Wermon Beach, Indonesia, and Huon Coast, Papua New Guinea, 
as well as projects in Japan to protect nesting loggerheads and 
projects in Mexico to protect foraging loggerheads. For instance, based 
on the most recent nesting data available, the Wermon Beach project 
annually produces approximately 40,000 leatherback hatchlings, and the 
Huon Coast project produces approximately 12,000 leatherback hatchlings 
each year, most of which would not survive without the conservation 
projects.
    Comment 28: Sea turtle populations in the Pacific are seriously 
reduced as the result of excessive, unregulated fisheries in 
international waters, so strict protections should continue, because 
U.S. protections diminish the threats to sea turtles while they are in 
domestic waters.
    Response: NMFS is actively engaged in efforts to combat illegal, 
unreported and unregulated (IUU) fishing through participation in 
international conventions such as WCPFC and IATTC. NMFS will continue 
to protect sea turtles, wherever U.S. fishing vessels operate, 
including within the EEZ and on the high seas, and diminish threats by 
imposing strict interaction limits, proven fishing methods and gear to 
reduce the number and severity of potential bycatch interactions, as 
well as required annual protected species workshops to educate 
fishermen.
    Comment 29: It is arbitrary and inconsistent with the ESA for NMFS 
to factor speculative and unproven ``market transfer effects'' of 
domestic fishing regulations into its jeopardy analysis.
    Response: NMFS is required to use the best available scientific 
information in formulating its biological opinions. As described in the 
2008 BiOp, the market transfer effect with regard to the Hawaii 
longline fishery was described in the NMFS 2001 EIS and in two peer-
reviewed papers. These papers suggest that a beneficial market transfer 
effect with regard to turtles could occur with an increase in the U.S. 
fishery because of the more stringent measures in place to reduce 
interactions with protected resources, in comparison to less heavily 
regulated foreign fisheries. This information could not be omitted in a 
biological opinion on the proposed expansion of the fishery.
    While the best available scientific information suggests that an 
increase in the U.S. fishery could result in a beneficial transfer 
effect, the information is inadequate to quantify any such effect. The 
potential for the beneficial transfer effect was described in the 2008 
BiOp; however, it was not quantified or included in the Susceptibility 
to Quasi-Extinction (SQE) model used to quantify the effects of the 
action on the North Pacific loggerhead population. That is, the SQE 
model in the 2008 BiOp assumed zero market transfer effect. Thus, the 
analysis remained very conservative.
    Comment 30: The listing of ``stressors'' to the affected 
populations on page 49 of the 2008 BiOp, and discussed in greater depth 
later, is woefully lacking and focuses largely on impacts of 
entanglement (interactions) by the shallow-set longline fishery.
    Response: ``Effects of the action'' on page 49 of the 2008 BiOp 
refers to the direct and indirect effects of an action on the species 
or critical habitat, together with the effects of other activities that 
are interrelated or interdependent with that action that will be added 
to the environmental baseline. The environmental baseline section 
described all past and present human impacts within the action area, 
and included fisheries interactions, climate change, and marine debris. 
The ``Effects of the Action'' section focuses on interactions with the 
shallow-set fishery, because that is the largest impact. The ``Effects 
of the Action'' are considered within the context of the ``Status of 
Listed Species'' and ``Environmental Baseline'' sections of the opinion 
to determine if the action can be expected to have direct or indirect 
effects on threatened and endangered species that appreciably reduce 
their likelihood of surviving and recovering in the wild by reducing 
their reproduction, numbers, or distribution (50 CFR 402.02), otherwise 
known as the jeopardy determination. ``Indirect effects'' are those 
that are likely to occur later in time (50 CFR 402.02).
    Comment 31: In Hawaii, the Western Pacific Fishery Management 
Council is well known for allowing overfishing of Hawaii's fisheries 
for short-sighted profits resulting in many local fisheries near and 
even total collapse and a scarcity of local fish in Hawaii's own 
markets. The Council is under Federal investigation, and must not be 
allowed to establish any new catch limits, fisheries, or guidelines 
under their existing administration, and they also present an imminent 
danger to the sustainability of Hawaii's fisheries.
    Response: Under the Magnuson-Stevens Act, the Council has 
management purview for U.S. fisheries in Federal waters around American 
Samoa, the Northern Mariana Islands, Guam, Hawaii, and the Pacific 
Remote Island Areas. The primary responsibility of the Council is to 
develop and recommend specific management measures in the form of 
fishery management plans, subject to the approval and implementation by 
the Secretary of Commerce via delegation to NMFS. Recent amendments to 
the Magnuson-Stevens Act in 2006 mandate the Council to develop annual 
catch limits and accountability measures to prevent and end overfishing 
for each of its managed stocks among other measures.
    According to a NMFS 2008 Report to Congress on the status of U.S. 
fisheries, the Council has prepared and NMFS has approved five fishery 
management plans which contain 45 stocks or complexes. Of these 45 
stocks and stock complexes, one stock, bigeye tuna, is subject to 
overfishing, one stock complex, Hancock seamount groundfish, is 
overfished, and no other stocks or stock complexes are approaching an 
overfished condition. Both bigeye tuna and seamount groundfish are 
fished by international fishing fleets, so ending overfishing of bigeye 
tuna stocks and rebuilding of the overfished seamount groundfish stock 
complex cannot be achieved by U.S. action alone.
    In June 2009, the Government Accountability Office of the United 
States (GAO) completed an internal review of Council operations to 
determine the validity of allegations of wrongdoing raised by several 
Hawaii-based conservation advocacy organizations. The GAO's full report 
of the review is available at www.gao.gov. None of the allegation 
addressed the competency of the Council to fulfil its statutory 
responsibilities under the Magnuson-Stevens Act.
    Comment 32: NMFS should focus its resources on correcting existing 
legal

[[Page 65469]]

deficiencies in the management of this fishery, obtaining better data 
on the target and non-target species affected by the fishery, and 
providing effective protection to threatened and endangered species so 
that