Western Pacific Pelagic Fisheries; Revised Limits on Sea Turtle Interactions in the Hawaii Shallow-Set Longline Fishery, 60637-60649 [2012-24536]

Download as PDF Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations average, each vessel would lose approximately $485 annually in gross revenues, which is minor (<1 percent) compared to each vessel’s overall revenue from swordfish and tunas ($190,986 total revenues). Alternative 2 is limited in scope to 2011 ICCAT Recommendation 11–08 and establishes fewer prohibitions than Alternative 3 described below. For purposes of enforcement, Alternative 2 could be less effective than Alternative 3. Therefore, Alternative 2 is not a preferred alternative. Under Alternative 3, pelagic longline vessel owners and operators could not retain, transship, land, sell, or store silky sharks, consistent with ICCAT Recommendation 11–08 and other domestic regulations. This alternative is essentially the same as Alternative 2 but would facilitate domestic compliance and enforcement. Thus, on average, each vessel would lose approximately $485 annually in gross revenues, which is minor (<1 percent) compared to each vessel’s overall revenue from swordfish and tunas ($190,986 total revenues). NMFS prefers Alternative 3, because it would implement ICCAT Recommendation 11–08, would likely have minor ecological benefits, would have minor socioeconomic impacts on the pelagic longline fishery, and would facilitate compliance and enforcement. Additionally, Alternative 3 would be unlikely to change fishing practices or effort. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Copies of the compliance guide are available from NMFS (see ADDRESSES). emcdonald on DSK67QTVN1PROD with RULES List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. Dated: September 27, 2012. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, Performing the Functions and Duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is amended as follows: VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 60637 5. In § 635.71, paragraph (d)(19) is revised to read as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES ■ 1. The authority citation for part 635 continues to read as follows: § 635.71 ■ Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq. 2. In § 635.21, paragraph (c)(1)(ii) is revised to read as follows: ■ § 635.21 Gear operation and deployment restrictions. * * * * * (c) * * * (1) * * * (ii) Has pelagic longline gear on board, persons aboard that vessel may not possess, retain, transship, land, sell, or store silky sharks, oceanic whitetip sharks, or scalloped, smooth, or great hammerhead sharks. * * * * * ■ 3. In § 635.24, paragraph (a)(9) is revised to read as follows: § 635.24 Commercial retention limits for sharks and swordfish. * * * * * (a) * * * (9) Notwithstanding other provisions in this subsection, possession, retention, transshipment, landing, sale, or storage of silky sharks, oceanic whitetip sharks, and scalloped, smooth, and great hammerhead sharks is prohibited on vessels issued a permit under this part that have pelagic longline gear on board or on vessels issued both an HMS Charter/Headboat permit and a commercial shark permit when tuna, swordfish or billfish are on board the vessel, offloaded from the vessel, or being offloaded from the vessel. * * * * * ■ 4. In § 635.31, paragraph (c)(6) is revised to read as follows: § 635.31 Restrictions on sale and purchase. * * * * * (c) * * * (6) A dealer issued a permit under this part may not purchase silky sharks, oceanic whitetip sharks, or scalloped, smooth, or great hammerhead sharks from an owner or operator of a fishing vessel with pelagic longline gear on board. A dealer issued a permit under this part may not purchase silky sharks, oceanic whitetip sharks or scalloped, smooth, or great hammerhead sharks from the owner of a fishing vessel issued both an HMS Charter/Headboat permit and a commercial shark permit when tuna, swordfish or billfish are on board the vessel, offloaded from the vessel, or being offloaded from the vessel. * * * * * PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 Prohibitions. * * * * * (d) * * * (19) Retain, possess, transship, land, store, sell or purchase silky sharks, oceanic whitetip sharks, or scalloped, smooth, or great hammerhead sharks as specified in § 635.21(c)(1)(ii), § 635.22(a)(2), § 635.24, and § 635.31(c)(6). * * * * * [FR Doc. 2012–24429 Filed 10–3–12; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 120416010–2476–01] RIN 0648–BB84 Western Pacific Pelagic Fisheries; Revised Limits on Sea Turtle Interactions in the Hawaii Shallow-Set Longline Fishery National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: In this final rule, NMFS revises the annual number of incidental interactions allowed between the Hawaii-based shallow-set pelagic longline fishery, and leatherback and North Pacific loggerhead sea turtles. NMFS also makes administrative housekeeping changes to the regulations relating to the fishery. The rule implements the incidental take statement of the current biological opinion on the fishery and clarifies the regulations. DATES: This final rule is effective November 5, 2012. ADDRESSES: Copies of supporting documentation that provide background information on this final rule, identified by NOAA–NMFS–2012–0068, are available at www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Adam Bailey, Sustainable Fisheries, NMFS PIR, 808–944–2248. SUPPLEMENTARY INFORMATION: The Hawaii-based shallow-set pelagic longline fishery targets swordfish primarily on the high seas of the North Pacific Ocean. The Western Pacific Fishery Management Council (Council) and NMFS manage the fishery under the SUMMARY: E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60638 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region. The plan provides for, among other things, a limited-access program, vesseland gear-marking requirements, vessel length restrictions, Federal catch and effort logbooks, large restricted fishing areas around the Hawaiian Archipelago, a vessel monitoring system, and annual protected species workshops. The plan also requires the use of gear and techniques for the safe handling and careful release of protected species, i.e., sea turtles, seabirds, and marine mammals. NMFS may issue a maximum of 164 longline permits for the deepand shallow-set longline fisheries in Hawaii combined, and about 25–30 vessels have been active in the shallowset fishery in recent years. NMFS deploys an official observer on every shallow-set fishing trip (100 percent observer coverage). The fishery occasionally and incidentally interacts with (hooks or entangles) protected species, primarily leatherback and North Pacific loggerhead sea turtles, but also other protected species. Consistent with the terms of a no-jeopardy 2004 NMFS biological opinion (2004 BiOp), the Council recommended and NMFS implemented a broad suite of sea turtle conservation and management measures for the fishery (69 FR 17329, April 2, 2004), including annual interaction limits for leatherback and loggerhead turtles. NMFS currently allows the fishery to interact with up to 16 leatherback and 17 loggerhead sea turtles per year; these limits directly manage the impacts of the fishery on sea turtles. If the shallow-set fishery reaches either limit, NMFS closes the fishery for the remainder of the year. As required under section 7 of the Endangered Species Act (ESA), NMFS re-evaluated in 2012 the impacts of the continued operation of the fishery, as governed under the current suite of management measures (the proposed action), on marine species protected by the ESA (i.e., humpback whales, North Pacific loggerhead sea turtle distinct population segment (DPS), leatherback sea turtles, olive ridley sea turtles, and green sea turtles). NMFS concluded in a biological opinion dated January 30, 2012 (2012 BiOp), that the proposed action is not likely to jeopardize the continued existence of these five species, and is not likely to destroy or adversely modify designated critical habitat. The 2012 BiOp is an integral component to managing the shallow-set fishery, because the one-year incidental take statement (ITS, including reasonable and prudent management measures, and terms and conditions) VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 forms the basis for regulations that specify the annual limits on leatherback and North Pacific loggerhead sea turtle interactions with the fishery that are necessary to manage the impacts of the fishery on sea turtles. In this final rule, NMFS is revising the annual limits on incidental interactions that may occur between the fishery and leatherback and North Pacific loggerhead sea turtles to 26 and 34 interactions, respectively. If the fishery reaches either of the interaction limits in a given year, NMFS would close the fishery for the remainder of that year. NMFS is also making minor housekeeping changes to the longline regulations for clarity and consistency in terminology. NMFS is revising references to the ‘‘shallow-set component of the longline fishery’’ to read more simply the ‘‘shallow-set longline fishery.’’ The sections of Title 50 of the Code of Federal Regulations that contain these changes include § 665.802 paragraphs (ss) and (tt), and § 665.813 paragraphs (b)(2)(i) and (b)(2)(ii), and paragraph (i). Comments and Responses On June 11, 2012, NMFS published a proposed rule and request for public comment (77 FR 34334). The comment period for the proposed rule ended on July 11, 2012. NMFS received approximately 2,270 comment submittals on the proposed rule. About 2,180 were form letters associated with a non-governmental organization. Representatives of the longline fishery and non-governmental organizations provided additional comments, along with several private citizens. NMFS responds to comments received, as follows: Comment 1: Increasing the allowable leatherback and North Pacific loggerhead sea turtle interactions from 16 to 26 and 17 to 34, respectively, would violate the ESA and cause jeopardy. Response: NMFS disagrees. NMFS complied with all procedural and substantive requirements of the ESA for the proposed rulemaking. The NMFS Sustainable Fisheries Division consulted with the NMFS Protected Resources Division on the continued operation of the fishery with a gradual increase to a maximum of 5,500 sets per year, which resulted in the issuance of the 2012 BiOp. This final rule implements the ITS from the 2012 BiOp for leatherback and North Pacific loggerhead sea turtles. Both the 2012 BiOp and this rule comply with the ESA. The agency must ensure that any activity that it authorizes is not likely, PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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. To carry out this mandate, NMFS consults with the appropriate agency (either USFWS or NMFS) on any Federal action that it determines may affect ESA-listed marine species. If the agency concludes that the proposed action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat but, nonetheless, determines that the proposed action will result in the take of listed species, the agency must issue an ITS. The ITS establishes the allowable take of listed species that would otherwise be prohibited, and specifies those reasonable and prudent measures and terms and conditions that minimize the impact of such take. In 2004, following a multi-year courtordered closure, NMFS reopened the fishery under a suite of sea turtle mitigation requirements, including the use of large circle hooks and fish bait, a set certificate program limiting effort at 2,120 annual sets, and compliance with the ITS in a no-jeopardy 2004 BiOp. The 2004 BiOp also required annual limits on the allowable number of leatherback and loggerhead sea turtles hooked or entangled in longline fishing gear by the fishery, specified at 16 leatherback and 17 loggerhead sea turtles. If the fishery reached either limit, NMFS would close the fishery for the remainder of the year. The 2004 BiOp also required NMFS to place observers on 100 percent of shallow-set fishing trips. In 2009, the Secretary of Commerce approved Amendment 18 to the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region. Amendment 18 removed the annual fishing effort limit and associated set certificate program to allow the fishery to achieve optimum yield of swordfish and other species, consistent with National Standard 1 of the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Optimum yield means the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. At the time of Amendment 18’s approval, domestic and foreign swordfish landings in the North Pacific amounted to about 60 percent of an estimated maximum sustainable yield (MSY) of E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations 22,284 metric tons (mt) as documented in Amendment 18. As analyzed under Amendment 18, the proposed action of 5,500 annual sets represents nearly the maximum annual level of effort that the fishery achieved during the five-year period 1994–1999, but was still below the 9,925 annual sets that would be necessary to produce MSY for the North Pacific swordfish stock, according to the 2004 stock assessment. In 2008, NMFS concluded in a biological opinion (2008 BiOp) that, among other things, Amendment 18 would not jeopardize the existence of any ESA-listed sea turtles, and included an ITS that allowed up to 16 leatherback and 46 loggerhead sea turtle interactions before NMFS would close the fishery for the remainder of the year. Following litigation over the 2008 BiOp with the Center for Biological Diversity, Turtle Island Restoration Network, and KAHEA: The Environmental Alliance, the ITS for leatherback and loggerhead sea turtles and that portion of the rule implementing the ITS were remanded to the agency and vacated. Under the terms of a consent decree, NMFS was to complete a new biological opinion on the fishery within 135 days of the USFWS–NMFS final decision on a petition to identify and list nine distinct population segments of loggerhead sea turtles. Consistent with the consent decree, NMFS issued the no-jeopardy 2012 BiOp, which evaluated the continued operation of the fishery under the management measures established by Amendment 18, with fishing effort at up to 5,500 sets annually and incorporated the best available scientific and commercial information. For example, NMFS used sea turtles interaction rates with the fishery obtained from 100 percent observer coverage from 2004–2011. In the 2012 BiOp, NMFS considered the effects of the action within the context of the ‘‘Status of Listed Species’’ together with the ‘Environmental Baseline’ and the ‘‘Cumulative Effects’’ to determine whether the action is likely to jeopardize the continued existence of listed species, or result in the destruction or adverse modification of designated critical habitat. NMFS concluded that the proposed Federal action is not likely to jeopardize the continued existence of any of the five listed species in the action area, or destroy or adversely modify designated critical habitat. Accordingly, NMFS issued an ITS that, consistent with the expected level of take at 5,500 sets annually, allows interactions with up to 26 leatherback sea turtles and 34 North Pacific loggerhead sea turtles each year, VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 along with reasonable and prudent measures designed to minimize the impact of fishery interactions. With respect to leatherback sea turtles, the 2012 BiOp concluded that, ‘‘the incidental lethal (up to 4 nesting females annually) and non-lethal takes of leatherback sea turtles associated with the proposed action are not reasonably expected to cause an appreciable reduction in the likelihood of survival of the species.’’ While acknowledging the adverse effect of any level of take and morality, NMFS found that the expected level of take from the overall action, including a small number of mortalities, is extremely small when considered together with all impacts described in the Status of the Species, Environmental Baseline, and Cumulative Effects sections, including other federally-authorized U.S. fisheries and foreign fisheries. The 2012 BiOp further noted that, even with the expected loss of up to four females annually, ‘‘the affected population is expected to increase’’ and would ‘‘remain large enough to retain the potential to contribute to species recovery.’’ The BiOp noted that the ‘‘proposed action does not appreciably impede progress on carrying out any aspect of the recovery program or achieving the overall recovery strategy,’’ and that NMFS expects the ‘‘overall population to continue to grow and to maintain genetic heterogeneity, broad demographic representation, and successfully reproduce.’’ The biological opinion concluded that the proposed action would not affect the leatherbacks’ ‘‘ability to meet their lifecycle requirements and to retain the potential for recovery.’’ Accordingly, the biological opinion concluded that the proposed action was ‘‘not reasonably expected to cause an appreciable reduction in the likelihood of survival or recovery of the species.’’ With regard to North Pacific loggerhead sea turtles, NMFS concluded that, although the proposed action would result in the mortality of up to one nesting female annually, ‘‘this level of mortality would present negligible additional risk to the North Pacific DPS’’ and would ‘‘not prohibit the DPS from stabilizing or increasing, nor would it prohibit the DPS from reaching a biologically reasonable FENA (females estimated to nest annually) based on the goal of maintaining a stable population in perpetuity.’’ The biological opinion noted that, although the climate-based population viability assessment (PVA) model reveals a declining population over the next 25 years, ‘‘the population will remain large enough to retain the potential for recovery’’ and that the PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 60639 proposed action ‘‘does not appreciably impede progress on carrying out any aspect of the recovery program or achieving the overall recovery strategy.’’ In particular, NMFS expects that the overall population will remain ‘‘large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. The proposed action will have a small effect on the overall size of the population, and we do not expect it to affect the loggerheads’ ability to meet their lifecycle requirements and to retain the potential for recovery.’’ Accordingly, under this final rule, NMFS will revise the annual limits on incidental interactions with leatherback from 16 to 26 interactions and North Pacific loggerhead sea turtles from 17 to 34 interactions. If the fishery reaches either of the interaction limits in a given year, NMFS would close the fishery for the remainder of that year (as required by current regulations). The revised limits are consistent with the 2012 BiOp, and are necessary to manage the impacts of the fishery on sea turtles while affording the fishery the opportunity to achieve optimum yield. NMFS is allowing the fishery to interact with leatherback and North Pacific loggerhead sea turtles consistent with the ESA. The sea turtle interaction limits under which the fishery currently operates are the product of a courtapproved settlement, based on an eightyear old no-jeopardy biological opinion that analyzed the expected level of take resulting from a fishery capped at 2,120 annual sets. By contrast, the 2012 BiOp is based on the most current information available on sea turtle dynamics and demographics, and is supported by data from 100 percent observer coverage during 2004–2011 on the fishery’s interactions, which NMFS used to analyze the effects of the fishery on sea turtle populations. In light of our improved understanding of sea turtle populations and the effectiveness of sea turtle mitigation measures in reducing both the frequency and severity of interactions in the fishery, NMFS appropriately authorized incidental take that exceeds the level (16 leatherbacks and 17 loggerheads) that was supported by judgments made in 2004, when the fishery was being reopened under an experimental regulatory regime that was untested in the Pacific where the fishery operates. Finally, regarding compliance with the National Environmental Policy Act (NEPA), NMFS concluded that the action to revise the interaction limits for leatherback (to 26) and North Pacific loggerhead (to 34) sea turtles are within a range of interaction levels analyzed in E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60640 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations the 2009 final supplemental environmental impact statement (FSEIS) for Amendment 18. NMFS also concluded that the 2012 BiOp, while containing more recent scientific information regarding the natural status of sea turtle populations, spillover effects, and fishery interactions with green sea turtles, presented no substantial changes to the action proposed in Amendment 18, or new circumstances or significant information relevant to the environment or bearing on the action or its impacts that were not already considered in the 2009 FSEIS. Comment 2: Current management of the shallow-set fishery is causing jeopardy to leatherback and North Pacific loggerhead sea turtles. Until there is consistent evidence that both the Western Pacific leatherback and North Pacific loggerhead populations are significantly recovering, allowing incidental take and mortality of either species would be irresponsible and contrary to the mandates of the ESA. Furthermore, the Ninth Circuit has made clear ‘‘even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm’’ (National Wildlife Federation v. NMFS, 524 F.3d 917, 930 (9th Cir. 2008)). Response: NMFS disagrees that the action will cause jeopardy. Likewise, NMFS concluded that the fishery, operating under the current management plan, is not causing jeopardy to listed sea turtles. In the 2012 BiOp, on which this action is based (and which provides related background information), NMFS relied on the best scientific and commercial information available to reach a no-jeopardy conclusion for the proposed action. Moreover, this action will not tip any sea turtle species into a state of jeopardy. See the response to Comment 1. Comment 3: NMFS has an obligation under the ESA to ensure that fishery operations do not appreciably lower the species’ chances of recovery, in light of the significant baseline impacts, such as fisheries bycatch, and cumulative threats to survival facing leatherbacks and loggerheads. Removing more sea turtles from shrinking populations that face growing threats from climate change and other impacts is not consistent with NMFS’ duty to ensure the survival and recovery of these species. Response: The NMFS and USFWS (1998) leatherback sea turtle recovery plan and loggerhead sea turtle recovery plan contain goals and criteria to VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 achieve recovery including, but not limited to, monitoring of nesting activity, determining population trends, identifying stock boundaries, reducing incidental mortality in commercial fisheries, and ensuring protection of marine habitat. NMFS used the information from the recovery plans and other sources to develop the 2012 BiOp, including the baseline information and PVA models, and to reach the nojeopardy conclusion. As discussed in the 2012 BiOp, the proposed action will not impede progress on carrying out any aspect of the recovery plans or achieving the overall recovery strategies. The proposed action will not affect the majority of the recovery criteria or the highest priority tasks. We expect the overall leatherback and North Pacific loggerhead sea turtle populations to continue to maintain genetic heterogeneity, broad demographic representation, and successfully reproduce. The proposed action will have a small effect on the overall size of the populations. Therefore, NMFS does not expect the lethal and nonlethal takes of leatherback and North Pacific loggerhead sea turtles to cause an appreciable reduction in the likelihood of both their survival and recovery in the wild. Comment 4: NMFS should not increase the annual allowable, incidental interactions with leatherbacks and loggerheads, and NMFS should review the regulations and protect sea turtles from being caught and killed in the shallow-set fishery. Response: The Western Pacific Fishery Management Council and NMFS regularly review domestic fisheries management regulations, including how they relate to sea turtles and other protected species during public and agency meetings and during the rulemaking process. See the responses to Comments 1 and 3. Comment 5: Sea turtle bycatch in commercial fisheries is one of, if not the greatest, threat to the recovery of leatherbacks, and NMFS should be seeking ways to reduce takes of this species instead of increasing them in order to accommodate fishing interests. Fishing at the same rate will result in killing more turtles per unit of effort. Response: Most sea turtle interactions occur in foreign fisheries that lack sea turtle bycatch deterrent and mitigation regulations. NMFS has implemented a suite of fishery management measures designed to minimize sea turtle interactions and post-interaction mortality. Since the fishery re-opened in 2004, the required use of circle hooks PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 and fish bait has reduced sea turtle interaction rates by approximately 83 percent for leatherbacks and 90 percent for loggerheads compared to 1994–2002, when the fishery was operating without these requirements (Gilman et al. 2007). Gilman et al. (2007) also demonstrated that the requirements have greatly reduced incidents of serious injury, e.g., the number of deeply hooked sea turtles. Additionally, handling and release requirements reduce sea turtle mortality. This rule will not alter or diminish these protective requirements. Comment 6: The proposed rule will result in an increased take and mortality of target and non-target fish, marine mammals (Bryde’s whales, false killer whales, bottlenose dolphin, humpback whales, Risso’s dolphins), and seabirds (black-footed albatross, Laysan albatross, short-tailed albatross). Moreover, the Hawaii swordfish fishery is among the fisheries with the highest amounts of bycatch in the U.S. despite its strict requirements on operations. This signals a need to reduce bycatch in the fleet, not increase bycatch under this action. Response: Because there would be no substantial change to the operational requirements of this fishery, NMFS does not expect this rule to affect the catch, interaction, and discard mortality rates of any fish stocks or protected species. NMFS does not expect bycatch rates to increase beyond the levels analyzed in the 2009 FSEIS. As described in the 2009 FSEIS, NMFS estimates fish bycatch in this fishery to be about 6–7 percent of the annual catch. NMFS does not expect substantial changes to the operation of the fishery in terms of fishing effort, amount of swordfish catch, fishing methods and gear, location of fishing effort (action area), capture rates of target, non-target, and bycatch species, or impacts to their habitats that were not already considered in the 2009 FSEIS. Discard mortality for many species is unknown, but is not expected to increase because of the increase in the sea turtle interaction limits. The fishery lands and sells many of the fish species caught. Therefore, the fishery optimizes the use of most of the resources encountered. The fishery will continue to use the sea turtle, seabird, and marine mammal deterrents and mitigation measures that have effectively reduced and mitigated harm to incidentally-caught species. The only ESA-listed seabird that has the potential to interact with the fishery is the short-tailed albatross. Observers have not recorded any short-tailed albatross interaction with the fishery since NMFS began monitoring the fishery with observers in 1994. On E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations January 6, 2012, the USFWS issued a no-jeopardy biological opinion for the fishery. The fishery will continue to use proven seabird deterrents and mitigation measures that have effectively reduced bycatch. Comment 7: The proposed rule should be modified to: establish effort limits on the number of sets to minimize the bycatch of other non-target organisms; maintain observer coverage of no less than 100 percent in the shallow-set fishery; establish time/area closures; dynamic area management; reduction of fishing effort; establish an incidental take limit of one leatherback or loggerhead, such that the fishery is closed upon reaching the one interaction limit; and shortening lines. Response: The suggested modifications are outside the scope of this rule, which revises the annual interaction limits for leatherback and North Pacific loggerhead sea turtles applicable to the fishery and continues the operation of the fishery under current requirements. Amendment 18, approved by the Secretary of Commerce and implemented by NMFS in 2010, considered and analyzed a broad range of alternatives, such as effort limits and time and area closures. See Amendment 18 for further information. The annual interaction limits in this rule are consistent with the ITS in the 2012 BiOp, which analyzed the continued operation of the fishery at a maximum annual effort of 5,500 sets annually. Since the ESA requires NMFS to consider the best available scientific and commercial information, NMFS had no basis with which to impose an annual interaction limit of one leatherback or loggerhead. Furthermore, an ITS of one would be contrary to the purpose of Amendment 18, which is to allow the fishery to achieve optimum yield, while continuing to protect sea turtles and other ESA-listed species. This action will maintain proven mitigation measures currently applicable to the fishery, such as circle hooks and safe handling techniques for protected species. This action does not change the 100 percent observer coverage for the fishery. Comment 8: NMFS admits in the 2012 BiOp that the direct effects of the proposed action have a ‘‘detectable,’’ that is, appreciable, effect on the loggerhead sea turtle population. This meets the regulatory definition of an action that is likely to jeopardize the species. Response: The terms detectable and appreciable are not synonymous in the context of the ESA. The 2012 BiOp stated that the proposed action would have a detectable influence on North VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 Pacific loggerheads but, after analyzing the status of the species, environmental baseline, effects of the action, and cumulative effects together, NMFS concluded that the proposed action would not likely jeopardize the survival and recovery of the species. Jeopardize means to engage in an action that reasonably would be expected 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. Comment 9: NMFS determined that the only way the Hawaii shallow-set longline fishery could reopen under the 2004 BiOp without jeopardizing leatherbacks and loggerheads would be to operate under the following restrictions: an effort limit of 2,120 sets annually, and interaction limits of 16 leatherbacks or 17 loggerheads, either of which, if reached, would result in the immediate closure of the fishery (72 FR 46608; August 21, 2007). Response: The 2004 BiOp analyzed the proposed action recommended by the Council, including a limit of 2,120 shallow sets annually, among others. The Council based their recommendations on sea turtle interaction rates from longline fishing experiments in the Atlantic from 2001– 2003 that tested sea turtle mitigation gear and safe handling techniques to find interaction limits applicable to the model fishery. That process resulted in interaction limits of 16 leatherbacks and 17 loggerheads. These numbers did not represent the upper limit of interactions that would avoid jeopardizing these species, but rather they represented the number of anticipated interactions associated with the 2004 proposed action. While the 2004 BiOp concluded the interaction limits would not jeopardize these species, it did not conclude that these were the only interaction rates allowable under the ESA, because NMFS based the information on Atlantic experimental results. Based on 100 percent observer coverage from 2004–2011, the 2012 BiOp found that actual interaction rates around Hawaii were lower for leatherbacks and loggerheads, compared to the Atlantic experiments from 2001– 2003. Relying on observed sea turtle interaction rates from the Hawaii shallow-set fishery from 2004–2011, the 2012 BiOp multiplied the proposed action of 5,500 sets per year by the average observed interaction rates per set to determine the interaction limits of 26 and 34, for leatherbacks and North Pacific loggerheads, respectively. Using the best available scientific and PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 60641 commercial information, the 2012 BiOp similarly found that the continued operation of the fishery with 5,500 sets annually would not likely jeopardize the continued existence of any ESAlisted species in the wild. Comment 10: NMFS should not increase the sea turtle interaction limits because both leatherbacks and North Pacific loggerheads species are ‘‘critically endangered’’ and likely to decrease in the future. Response: NMFS disagrees. NMFS evaluated the impacts of the continued operation of the fishery on leatherback and North Pacific loggerhead sea turtles, and concluded in the 2012 BiOp that the action would not likely cause jeopardy. This final rule conforms to the ITS that was prepared in accordance with ESA. See the response to Comment 1 regarding compliance with ESA and the no-jeopardy conclusion in the 2012 BiOp. Comment 11: In the context of the ESA, the proposed rule would appropriately continue to authorize the negligible levels of incidental leatherback and loggerhead take experienced in the shallow-set fishery. This process and the resulting agency findings convincingly and conclusively demonstrate that the effects of the shallow-set fishery on leatherback and North Pacific loggerhead sea turtle populations are negligible and that, for purposes of the ESA, the shallow-set fishery is not likely to jeopardize the continued existence of either species. Response: NMFS agrees that this action is not likely to jeopardize the continued survival and recovery of any ESA-listed species in the wild. Comment 12: In spite of conservation efforts for the small number of hawksbill sea turtles nesting and foraging around Hawaii, NMFS wants to increase the interaction limit for this species. Response: This rule does not address interaction limits for hawksbill turtles; it only revises the annual interaction limits for leatherback and North Pacific loggerhead sea turtles. There has been no recorded interaction with a hawksbill sea turtle in the fishery, and the probability of a hawksbill interaction is extremely unlikely. If the fishery does interact with a hawksbill sea turtle, NMFS would re-examine the effects of the fishery on this species. Comment 13: Explain how NMFS enforces the interaction limits, and provide the historical annual numbers of interactions and fishery closures. The reported numbers of interactions are low or underreported. Response: NMFS observers document sea turtle interactions in the fishery. E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60642 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations Because there is an observer on each trip, NMFS is able to determine the number of turtles that interact with the fishery and does not believe numbers are low or underreported. In addition to observers, fishing vessel captains are required to report any interaction with protected species in Federal logbooks for all fishing trips. If the fishery reaches an annual interaction limit, NMFS closes the shallow-set longline fishery north of the Equator through the end of the calendar year via direct and immediate notification (e.g., satellite telephone, email, etc.) to vessel owners, permit holders, captains, and observers. NOAA’s Office of Law Enforcement investigates potential violations of the ESA. In 2006, the fishery reached the interaction limit for loggerhead sea turtles and, in 2011, the fishery reached the limit for leatherback sea turtles. Both times, NMFS closed the fishery for the rest of the calendar year. For more information on annual sea turtle interactions in the shallow-set longline fishery, see the 2012 BiOp and www. fpir.noaa.gov/SFD/SFD_turtleint.html. Comment 14: There is no justification for setting kill limits that affect survival numbers, genetic diversity, unreported bycatch, and other unknown factors. Response: Under ESA, NMFS may authorize the fishery to interact with protected species that would otherwise be prohibited, if conducted pursuant to a lawful activity, and if conducted in accordance with the terms and conditions of a no-jeopardy biological opinion and ITS. The annual interaction limits specified in this rule conform to the ITS in the 2012 BiOp. NMFS believes most interactions do not result in mortality. In fact, since 2004, NMFS has no documented direct observation of any sea turtle mortality in the shallow-set fishery with 100 percent observer coverage. However, in the 2012 BiOp, NMFS conservatively estimated post-interaction mortality rates of 22.0 percent for leatherbacks and 18.6 percent for North Pacific loggerheads, based on factors such as whether there is trailing gear, the placement and location of the hook, degree of entanglement, and physical condition. In addition, this rule does not change the 100 percent observer coverage for the fishery. Comment 15: The proposed rule correctly sets annual interaction limits for leatherback and North Pacific loggerhead sea turtles that are consistent with the agency’s recommendations, as set forth in the 2012 BiOp. Response: NMFS agrees. Comment 16: The proposed action is similar to NMFS’ failed attempt in the VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 2008 BiOp and Amendment 18 where NMFS proposed to raise the annual incidental interaction limit for leatherback sea turtles from 16 to 17, and the limit for loggerheads from 17 to 46. Response: The action analyzed under Amendment 18 and the 2009 FSEIS, and subsequently implemented by NMFS in 2010, raised the annual loggerhead interaction limit from 17 to 46, but did not change the interaction limit for leatherbacks. Under the process established by Amendment 18, interaction limits are to be established consistent with a biological opinion prepared under section 7 of the ESA. The 2012 BiOp satisfies this requirement. See the response to Comment 1. Comment 17: The Magnuson-Stevens Act requires NMFS to manage fisheries responsibly to minimize bycatch, protect habitat, and prevent overfishing. As such, it would be irresponsible and illegal of NMFS to approve this proposed rule. NMFS continues to promote non-sustainable longline and drift gillnet fishing gear, violating laws and continually eroding the credibility of fishery management agencies. Response: In addition to minimizing impacts on protected species, NMFS is required to manage fisheries sustainably by achieving optimal yield. The Secretary of Commerce approved, and NMFS implemented, the management program established in Amendment 18 to allow the fishery to achieve optimal yield of the swordfish stock, which is healthy, not subject to overfishing, and underexploited. The fishery ecosystem plan for pelagic species manages interactions and post-interaction mortality by continuing mitigation measures that have a proven effectiveness, including the use of large circle hooks, fish bait, and safe handling gear and procedures for protected species. The current action does not affect NMFS’ ability to protect essential fish habitats and prevent overfishing. NMFS monitors the fishery to detect changes and would work with the Council to develop management measures if overfishing ever becomes a concern. An incidental benefit of Amendment 18 may be to provide positive benefits to non-target stocks. For example, the reduction in regulatory barriers may lead fishermen in the deepset fishery to participate in the shallowset fishery, thereby reducing fishing pressure on bigeye tuna stocks, which are experiencing overfishing. NMFS has no information indicating that the fishery is not operating sustainably. In 1992, the United Nations banned high seas drift gillnet fishing. Drift PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 gillnets are not allowed in Federal waters around Hawaii or other U.S. Pacific Islands. The USA is a recognized leader in fisheries management worldwide and the Hawaii shallow-set longline fishery is among the most strictly regulated and sustainable suppliers of fresh seafood. NOAA’s Office of Law Enforcement investigates potential violations of all applicable laws. Comment 18: Hawaii’s sea turtles and monk seals are important for tourism, because people enjoy diving and swimming with them. There are not enough of them, and they have been on the decline in Hawaii. Do not change how many sea turtles can be killed by lines or hooks before stopping fishing. Response: Hawaii tourists enjoy seeing green sea turtles and, occasionally, hawksbill sea turtles. The numbers of nearshore green sea turtles have been increasing in Hawaii for over three decades, and the recent trend in the numbers of nesting hawksbill sea turtles in Hawaii is stable. The shallowset fishery operates hundreds of miles offshore in deep ocean waters where the density of green sea turtles is lower. The fishery interacted with six green sea turtles from 2004–2011, and there have been no reported or observed interactions with hawksbills. Based on very low densities of hawksbill sea turtles in the action area, and the lack of any interactions with longline fisheries around Hawaii, an interaction with a hawksbill sea turtle is extremely unlikely. The fishery also will not likely affect monk seals. State of Hawaii and Federal laws protect sea turtles and monk seals; longline fishing is not allowed in nearshore waters around Hawaii, from the shoreline to about 25 to 75 nautical miles from shore. Comment 19: The United States has the power and influence to persuade other nations to help save sea turtles from drowning in fishing nets. There should be regulation on what kinds of nets the fisheries can use. Turtle hatchback nets have seen some success with fisheries, so that could be a place to start. We cannot afford to wait and must lead by educating and teaching other countries that all vessels must be required to have turtle excluder devices (TEDs). Our government must check to make sure that the TEDs are in place and working. Response: NMFS agrees, and works to develop fishing gear that conserves protected resources to the extent practicable. Fishing with nets, including trawls, is prohibited in Federal waters around Hawaii and other U.S. Pacific Islands. NMFS is also active in efforts to E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations reduce interactions with protected resources in fisheries worldwide. The U.S. participates in international fisheries management organizations (RFMOs) worldwide, including the Western and Central Pacific Fisheries Commission (WCPFC) and InterAmerican Tropical Tuna Commission (IATTC) in the Pacific. Due to efforts by the U.S. in these RFMOs, proven sea turtle bycatch mitigation measures required in Hawaii are now required in other countries and by RFMOs. NMFS continues to collaborate with foreign agencies and conservation organizations, to develop conservation measures and responsibly manage fisheries. Comment 20: The Magnuson-Stevens Act and MMPA provide a process by which NMFS must identify nations whose fishing practices result in the bycatch of protected living marine resources, including sea turtles, and certify whether each nation or, in the alternative, imported shipment, meets U.S. requirements for bycatch reduction. Specifically, ‘‘were harvested by practices that do not result in bycatch of protected marine species, or were harvested by practices that * * * include mandatory use of circle hooks, careful handling and release equipment, and training and observer programs * * *.’’ Therefore, NMFS should restrict swordfish imports from fisheries that observe lower sea turtle and marine mammal conservation standards and, therefore, effectively reduce protected species mortality. Response: The purpose of this rule is to implement the ITS from the 2012 BiOp for the shallow-set fishery, consistent with Amendment 18. Accordingly, the comment is outside the scope of this rule. However, NMFS works to identify fisheries that have high incidences of interactions with sea turtles and other protected species, and is actively engaged in efforts to manage fisheries bycatch through membership in international conventions such as WCPFC and IATTC. Comment 21: The existing fishery, as regulated since 2004, has reduced loggerhead and leatherback bycatch by 97 [sic] percent and 83 percent, respectively, from prior levels, and every loggerhead and leatherback sea turtle that has interacted with the fishery during this time has been released alive. Response: NMFS agrees, and this final rule will continue these successful measures. Comment 22: The capture and entanglement of marine life on longlines reduces the efficiency of fishing operations and adds needless costs. VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 NMFS must consider the negative economic impacts on the fishery to increased levels of sea turtle take, in addition to the potential benefits that have been described. Response: When these measures were implemented, NMFS considered efficiency in utilization of fishery resources, minimizing costs, and bycatch, as required under the Magnuson-Stevens Act. NMFS has no information to conclude that this rule will impose additional costs on fishery participants or increase inefficiency in utilizing fishery resources, and NMFS certified under the Regulatory Flexibility Act to the Small Business Administration that this action would not have a significant economic impact on a substantial number of fishing businesses. Comment 23: The effects analysis in the 2012 BiOp ignores sub-lethal effects of hooking or entangling turtles, which can render them less able to feed, swim, or avoid predation. Instead, the biological opinion’s jeopardy analysis focuses on how many of the interactions between turtles and longline gear will result in mortality. Response: NMFS based this rule on the best available scientific and commercial information, including an analysis of sub-lethal effects and postinteraction mortality, as documented in the 2012 BiOp. While NMFS cannot predict whether a sea turtle will breed, swim, feed, or avoid predation after an interaction, NMFS evaluates whether the injuries are serious enough as to make survival unlikely, using sciencebased criteria. Comment 24: Provide clarification for the proposed regulation in § 665.813(2)(i) that states, as soon as practicable the shallow-set longline fishery shall be closed. This vague statement seems like it could be taken advantage of quite easily if requirements or punishment were lacking. Response: Because of the inherent difficulty of communicating with vessels at sea, it is not always possible to provide immediate notice of a fishery closure to participants. However, NMFS provides notice to fishermen as soon as practicable in several ways. Constructive notice, in the form of a notification in the Federal Register, and actual notice via telephone and email to vessels owners on land and vessel captains at sea. This process to publish a notice in the Federal Register may take several days. NMFS places telephone calls and text messages to vessel owners and captains much more quickly. For example, when NMFS closed the fishery in 2011, we were able to reach all owners and captains, either PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 60643 directly or through observers on board the vessels, within several hours of reaching the interaction limit. NOAA’s Office of Law Enforcement investigates potential violations of all applicable laws. Comment 25: The proposed rule explained that there was no significant economic impact, yet there was no assessment provided. This begs the question of why revise the amount of turtle interactions if it means little to no impact on the economy? If there is no economic gain, then sea turtles should not be placed in more danger. Response: This final rule will provide the swordfish fishery with the opportunity to achieve optimal yield for a fishery resource that is currently healthy and underexploited, while still maintaining important conservation and management safeguards for protected species. NMFS prepared a mandatory Regulatory Impact Review (RIR) under Executive Order 12866 on April 13, 2012, and made it available to the public during the public comment period at www.regulations.gov as document NOAA–NMFS–2012–0068– 0005. In the RIR, NMFS analyzed the economic impacts on commercial fishery participants, and determined that the impacts would not be significant. This determination addresses the economic burden on the economy and the fishery, and does not suggest that the action would not have positive economic results. Comment 26: The biological opinion, record of environmental consideration, and proposed rule did not recognize the proposed expansion of the California drift gillnet fishery discussed at the Pacific Fishery Management Council meeting in March 2012. The impacts to Western Pacific leatherback populations as a result of increased take in the American Samoa longline fishery as well as the California drift gillnet fishery must be considered and mitigated before making any determinations on increased take in the Hawaii swordfish longline fishery. Response: NMFS disagrees. Actions taken by the Pacific Council in March 2012 relating to the California drift gillnet fishery and Pacific leatherback conservation area are preparatory and/or preliminary as to potential future action, if any, that the Pacific Council and NMFS might take. Given the uncertainty regarding the nature and scope of any future Federal action, or whether any Federal action will be taken at all, NMFS is unable to predict the potential effects any proposal from the Pacific Council on the environment or protected species at this time. E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60644 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations With respect to the American Samoa longline fishery, NMFS considered, under a separate 2010 biological opinion, the impact of the American Samoa longline fishery on sea turtles. Since implementation of gear requirements to protect turtles, NMFS has not documented any additional sea turtle interactions in the American Samoa longline fishery. Although NMFS has taken action to mitigate the impact of the American Samoa longline fishery on sea turtles, we know of no requirement to demonstrate effectiveness of those measures prior to authorizing the continued operation of the Hawaii shallow-set fishery. Comment 27: The proposed action to allow 34 loggerhead sea turtle takes, making up seven mortalities a year, would be an increase in the government-authorized killing of what is now an endangered distinct population that, according to the climate-based PVA model, is clearly at high risk of extinction. The classical PVA model portrays an optimistic look for the loggerhead population and makes unrealistic assumptions that all environmental and human caused impacts will remain constant. NMFS discounts the classical PVA model because it is driven primarily by the last three years of loggerhead nesting, not the long-term trend showing a significant decline in the population. Therefore, NMFS should not allow an increase in sea turtle interaction levels. Response: The 2012 BiOp is largely a qualitative evaluation of the general direction and magnitude of the probabilities projected in the climatebased PVA model, informed by relevant information from other sources. NMFS acknowledges that both the classical and climate-based approaches have limitations. Although the classical PVA model projected robust growth of the loggerhead population based on a linear projection of nesting data, we discounted that model specifically because the classical PVA model predicts future population sizes in linear fashion when many species, especially sea turtles, have populations that oscillate over time due to factors for which the model cannot account. The climate-based PVA model, with results that differed from the classical PVA model, was more rigorous in applying data from the Pacific Decadal Oscillation (PDO) and, therefore, more useful to the analysis. According to Van Houtan (2011), the climate-based PVA model captures climate dynamics through two mechanisms: Juvenile recruitment and breeding remigration. This model recognizes that females do not breed annually; rather, breeding VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 occurs when ocean conditions are sufficient for females to reproduce. In addition, juveniles are considered more susceptible to oceanographic variability as they have a limited ability to exploit their surroundings for food. Van Houtan and Halley (2011) concluded that loggerhead nesting varies synchronously within regions, suggesting that climate pressures operating over large geographic areas and time series account for periods of high and low abundance. Considering the above, however, and given that a small number of sea turtle experts only recently developed the climate-based PVA model and that it uses a relatively short 25-year predictive period, we were cautious not to rely completely on any one model. NMFS chose to proceed carefully with a quantitative and qualitative empirical evaluation of the climate-based PVA model, along with inputs from multiple experts and sources. Based on this approach, we predicted an oscillating decline of the population below a 50percent quasi-extinction threshold within one generation (25 years) due largely to climate-forcing factors. As noted in the 2012 BiOp, this threshold does not mean that the population will become functionally extinct; rather, it is an assumed fraction of the current population size (in this case, 50 percent) by which the population projections were modeled. The fishery’s impact, though detectable, would not appreciably reduce the likelihood of the North Pacific loggerhead’s survival and recovery, in that the population would remain large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. In particular, with an adult female nesting population conservatively estimated at 7,100, the effect of the removal of one adult female under the proposed action (0.35 percent of the estimated total population over 25 years) would be insignificant, and that the additional risk to the DPS that would result from loss of one adult female annually is negligible. NMFS has no empirical basis with which to leave the current 16 leatherback and 17 loggerhead sea turtle incidental take levels in place. Comment 28: Data input into both the classical and climate-based PVA models from converting juveniles to adult equivalents using central estimates of North Pacific loggerhead sea turtle age (13 years old) and post-hooking mortality (18.6 percent) is problematic and overly risky. NMFS wrongly assumes that 100 percent of the mortalities are juveniles for calculating PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 the adult equivalent mortality after stating that 96 percent of mortalities are juveniles from direct observation of carapace length. Turtles may be older and closer to reproductive age than estimated, and there is substantial uncertainty in the post-hooking mortality estimates and actual mortality could be much greater. Response: NMFS relied on the best scientific and commercial information available in developing the 2012 BiOp, which formed the basis for this final rule. As discussed in section 7 of the BiOp, 96 percent of loggerheads captured in the fishery were juveniles with the most common carapace length being about 57 cm. Based on studies conducted on loggerhead turtles in the Atlantic, this size turtle is equivalent to a 13-year-old turtle (there are no size-atage comparisons for loggerhead turtles in the Pacific). In addition, NMFS used three different survival rates established for turtles between the ages of 13 and 25. NMFS applied a conversion formula to determine the annual effect of the action on adult females. In order to estimate adult equivalents that will be affected by the action, survival rates (Snover 2002) were applied to three distinct life stages that would occur between age 13 and the age at first reproduction estimate of 25 years (2012 BiOp Figure 4c and Table 6; Van Houtan 2011). The three survival rates applied to convert juveniles to adults were 0.81, 0.79, and 0.88 (Snover 2002, Van Houtan 2011). Seven juvenile mortalities result in the annual removal of the equivalent of one adult female (0.31 adult females round to 1) (2012 BiOp Figure 4c and Table 6; Van Houtan 2011), which included that female’s reproductive potential and the lost reproductive potential of the unborn hatchlings. NMFS rounded this number to one, because the mortality of a fraction of a turtle is not biologically realistic and, therefore, made the estimate much more precautionary. The calculation of adult female equivalents was rounded to the nearest significant digit, which conservatively accounts for variation in percentage of adult female equivalents. The difference to the mortality estimate if we included four percent of adults (assuming 96 percent are juveniles) in our calculation would mean an additional 0.13 adult female equivalent, which when added to 0.43 would still round up to 1 adult female mortality annually. Therefore, this single adult female equivalent mortality per year is a precautionary estimate that accounts for variation in the model’s underlying assumptions. NMFS derived the post-interaction mortality rates used in the effects E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations analysis from a workshop that developed criteria for assigning postinteraction mortality values based upon identified variables, including hook placement, degree of entanglement, and physical condition (Ryder et al. 2006). NMFS relied on a conservative and established approach for applying its guidance on sea turtle post-interaction mortality rates in developing the 2012 BiOp. Therefore, the mortality rates did not appear to be over- or underestimated. Comment 29: The climate-based PVA model is inconsistent with empirical nesting data, and the results conflict strongly with the classical PVA model. Therefore, there is no justification for NMFS using the climate-based PVA model as a basis for a no jeopardy finding, as it is directly contrary to the best available science. Response: The 2012 BiOp analysis is largely a qualitative evaluation of the general direction and magnitude of the probabilities projected in the climatebased PVA model, informed by other relevant information from other sources. NMFS acknowledged that both the classical and climate-based approaches have limitations. For example, although the classical PVA model projected a decline in the leatherback population based on a linear projection of nesting data, NMFS discounted the model because of its inherent limitations. In particular, NMFS noted that the classical PVA model predicts future population sizes in linear fashion when many species, especially sea turtles, have populations that oscillate over time due to factors for which the model cannot account. NMFS found that the climate-based model, which differed from the classical PVA model, was more rigorous in applying actual data (i.e., PDO data) and, therefore, more useful to our analysis. According to Van Houtan (2011), the climate-based PVA model captures climate dynamics through two key turtle life stages: neonates and nesting females. This model recognizes that females do not breed annually, but when ocean conditions are sufficient for females to reproduce. In addition, juveniles are considered more susceptible to oceanographic variability as they have a limited ability to exploit their environs for food. Van Houtan and Halley (2011) concluded that sea turtle nesting varies synchronously within regions, suggesting that climate pressures operating over large geographic areas and time series account for periods of high and low abundance. However, given that the climate-based PVA model was only recently developed by a small number of sea VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 turtle experts, and its relatively short 25-year predictive period, NMFS was cautious not to rely completely on any one model, and elected to proceed carefully with a quantitative and qualitative empirical evaluation of the climate-based PVA model along with inputs from multiple experts and sources, where available. Based on our analysis, NMFS anticipates a rebound of the leatherback population due to decadal oscillations in the North Pacific Ocean and that the number of nesting females will increase over 80 percent by the year 2035. Further, when NMFS analyzed the proposed action with the annual mortality of four adult females, there is a measureable loss to the population, but the population still grows. We determined that the proposed action would not appreciably reduce the likelihood of survival and recovery of the species in the wild. We expect the overall population to continue to grow and to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. Further, we expect the proposed action to have a small effect on the overall size of the population, and we do not expect it to affect the leatherbacks’ ability to meet their lifecycle requirements and to retain the potential for recovery. Comment 30: NMFS limits jeopardy analysis to only the next 25 years and does not adequately assess long-term threats, extinction risk, or jeopardy, for a long-lived species like sea turtles. Recent studies highlight the serious threats future climate change poses to endangered turtles, threats that would only be compounded by the substantial increases in fishery-related take the agency proposes to authorize. See Conner, 848 F.2d at 1454 (NMFS ‘‘cannot ignore available biological information’’); see, e.g., Saba et al. (2012); Tomillo et al. (2012). Both of these peer-reviewed studies project climate change-related impacts to the year 2100, demonstrating that NMFS could have, but failed to, model such impacts far beyond the 25 years with which the agency contented itself. Response: The ESA requires NMFS to make predictions only as far as it can adequately explain reliance on the data. NMFS evaluated the effects of this rule, as analyzed in the 2012 BiOp, over the next 25 years, which corresponds to the forecast limitations of the climate-based PVA model. The climate-based model uses the historic nesting data for North Pacific loggerheads, but then adds the long-term dynamics of climate forcing on the population. Van Houtan and Halley (2011) demonstrated that climate plays a primary role in juvenile recruitment for North Pacific and PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 60645 Northwest Atlantic loggerhead populations. Their model accurately accounts for the last several decades of nesting trends at various spatial scales in two different populations and accounted for annual fluctuations over the 20–30 years. NMFS relied on the best available information in projecting out to 25 years. For further information on the reliance on the PDO, see Van Houtan and Halley (2011) and Van Houtan (2011). Papers referenced by the commenters regarding Eastern Pacific leatherbacks only evaluate land-based climate change effects, such as sand temperature on hatchlings, which is why they could project out to 2100. The climate-based PVA model relies on the strong correlation that exists between sea turtle population trends and the Pacific Decadal Oscillation (PDO). The PDO cannot be predicted beyond what information we now have, and is currently limited to the next 25 years; therefore, the model cannot forecast climate-forcing population trends beyond that period. The correlation between hatchling success and favorable oceanic conditions prior to nesting is poorly understood, and NMFS cannot directly translate effects on the Eastern Pacific leatherback to the Western Pacific leatherback population. Since 1995, none of the genetic samples collected from interactions in the shallow-set fishery is from the Eastern Pacific leatherback population. Comment 31: The climate-based PVA model does not account for cumulative effects of other impacts. It does not include other anthropogenic mortalities (e.g., bycatch in other fisheries), rather just the direct effects of the proposed action. Response: NMFS based this rule on the 2012 BiOp, which used a climatebased PVA model that examined bottom-up climate forcing at two turtle life stages, both with and without the proposed action. The 2012 BiOp considered other anthropogenic threats and sources of mortality, for example, bycatch in other fisheries, in Status of the Species, Environmental Baseline, and Cumulative Effects sections. The no-jeopardy determination in the opinion is based on the effects of the action within the context of the species’ status, environmental baseline, and cumulative effects to determine if the proposed action analyzed in the 2012 BiOp can be expected to have direct or indirect effects on threatened and endangered species that appreciably reduce the likelihood of surviving and recovering in the wild by reducing their reproduction, distribution, or numbers. E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60646 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations Comment 32: NMFS failed to consider information (e.g., Tapilatu et al., unpublished) that indicates that leatherback sea turtles are declining at a much faster rate than analyzed in the 2012 BiOp and are at imminent risk of extinction. NMFS also fails to acknowledge that its own analysis reveals that leatherback sea turtles would experience a much higher rate of decline and that the proposed action is deepening the baseline conditions that are causing jeopardy. Response: This rule is based on analyses in the 2012 BiOp, which considered all relevant information relating to leatherback sea turtle population status and trends, including Tapilatu et al. (unpublished). The 2012 BiOp, Status of the Species section for leatherbacks specifically acknowledged anecdotal reports from the early 1980s suggesting declines in leatherback nesting prior to reliable nest counts beginning in 1993. In addition, the 2012 BiOp considered information relating to the nesting population of the JamursbaMedi component of the Western Pacific leatherback population from 1993–2010, which includes the Bird’s Head peninsula as addressed by Tapilatu et al. (unpublished) and others, with the overall trend slightly declining. See also the responses to Comments 1, 2, and 3. Comment 33: A central theme throughout the BiOp is the argument that allowing U.S. fishermen to kill more leatherback and loggerhead sea turtles will actually save more turtles globally in the long run. NMFS has specifically failed to demonstrate that production in other countries has increased or will increase to meet U.S. demand. It is entirely reasonable to conclude that international fisheries for swordfish will operate, if not expand, regardless of the Hawaii shallow-set fishery. Conversely, there is no empirical evidence to suggest that increased domestic production will result in decreased fishing effort by other swordfish producing nations. Ultimately, the Chan and Pan (2012) results depend on their underlying assumption that sea turtle interaction rates are higher from the countries from which the U.S. imports swordfish, not on actual data showing that this necessary condition holds. NMFS does not present clear evidence that increases in U.S. swordfish production lead to reductions in overall global swordfish effort. Given that the Hawaii shallow-set fishery has not hit its set limit even once since 2004 (and hit the cap on turtle take in only two years) and annual effort has varied from a low of 135 in 2004 to a high of 1,875 sets in 2010, foreign fishermen have had no way of knowing VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 what level of domestic fishing would take place in any given year since the fishery reopened. Response: In the 2012 BiOp, NMFS carefully evaluated the best available scientific and commercial information regarding the beneficial spillover effects from the Hawaii shallow-set fishery. The analysis considered whether sea turtles are affected, if and when the production by foreign fleets (that are known to have higher turtle interaction rates) displaces U.S. swordfish production (Hawaii represented 74 percent of all U.S. Pacific landings before 2001) in the same general area of the central and North Pacific. Chan and Pan (2012) conducted a new study of production displacement that was not considered by Rausser et al. in 2008, and presented empirical data to establish that, while U.S. swordfish production in the Pacific Ocean declined, foreign production increased. Between 1991 and 2009, swordfish production in the eastern central and northeast Pacific, where the Hawaii shallow-set fishery operates, had been stable or declining slightly, whereas production in the western central and northwest Pacific had trended upward, particularly after 1996. Using data on 1999–2009 global swordfish production from the Food and Agriculture Organization of the United Nations, the authors demonstrated that the foreign production in the central and North Pacific increased when the U.S. swordfish production decreased, and vice versa. The authors also used these empirical data to measure the degree of swordfish production displacement between U.S. and non-U.S. fishermen, and found the degree of displacement to be one-to-one. Chan and Pan (2012) incorporated variability and randomness in production throughout the time series. The result of the model showed fishing effort and capacity may be affected by regulation and, therefore, demonstrated a correlation of swordfish production displacement between foreign and U.S. fisheries. Based on this analysis, NMFS identified spillover effects as potential indirect effects of the proposed action. NMFS did not, however, incorporate these beneficial spillover effects in our quantitative PVA models, and NMFS reached the nojeopardy conclusion both with and without the beneficial effects of spillover, formulating an ITS only on the expected adverse effects of the proposed action. Comment 34: The NMFS 2012 Technical Memorandum on spillover effects is founded on a number of unsupported assumptions, not on any actual bycatch or observer or swordfish PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 landings data from any foreign fisheries. The populations of sea turtles in question are not globalized resources. The take of an Atlantic leatherback turtle does not have the same effect on the Western Pacific population of leatherback turtles as the take of a Western Pacific leatherback turtle. Therefore, the assumption that sea turtle bycatch has the same biological effect regardless of where it occurs is markedly incorrect at a fundamental biological level. In other words, it does matter where the sea turtles are caught; therefore, they cannot be considered ‘‘globalized resources.’’ Further, Chan and Pan (2012) summarize their argument in terms of total number of turtles, even though there are at least four different species representing dozens of different populations. Also, there is no evidence that if the U.S. swordfish supply did in fact saturate the market, that foreign fleets would not simply sell to other markets where there is a demand for swordfish, casting considerable doubt on the market transfer effect. If NMFS has determined that U.S. demand for swordfish is causing harm to sea turtle populations globally, it has the responsibility to engage in consumer awareness campaigns aimed at reducing domestic swordfish demand. Response: In the 2012 BiOp, NMFS identified and analyzed the spillover effect as a potential indirect effect of the proposed action. Because data on foreign fisheries are incomplete, NMFS’ estimates of foreign fishery interaction rates may be imprecise, and the expected number of sea turtle interactions with foreign fisheries that would be avoided by this action cannot be confirmed by direct observation. Thus, the precision of analyzing spillover effects is not the same as for the domestic fishery with 100 percent observer coverage. For those reasons, NMFS did not include numerical determinations of sea turtle mortalities that will be avoided because of the spillover effect in our quantitative PVA models. NMFS focused the analysis on whether sea turtle populations benefit when U.S. swordfish production displaces the fishing activities of foreign fleets that are known to have higher turtle interaction rates in the same general area. Chan and Pan (2012) projected a global beneficial effect for sea turtles to occur when the fishery fished at the effort level of 5,500 sets with a projected production of 5,461 mt of swordfish, and where there is a oneto-one displacement for the increased swordfish production, which is proportionally deducted from foreign E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations fleets. Under these circumstances, Chan and Pan (2012) determined that an increase in swordfish production by the fishery from 1,761 mt to 5,461 mt would replace 3,700 mt of foreign swordfish production, which would result in a decrease in turtle interactions by 12 percent, or 221 individual turtles of all species combined. Because leatherbacks represent about 40.2 percent of the turtles caught in the shallow-set fishery in the action area in the North Pacific, NMFS estimated that, in the Pacific Ocean, there would be 89 (221 × 40.2 percent) fewer leatherback interactions with longline gear from international fisheries at this level of increase in U.S. swordfish production. Similarly, because North Pacific loggerheads represent about 52.8 percent of the turtles caught by the shallow-set fishery, we estimated that there would be 117 (221 × 52.8 percent) fewer loggerhead interactions in longline gear from international fisheries at this level of increase in U.S. swordfish production. Chan and Pan (2012) discussed in detail the methodology for identifying the one-to-one displacement of U.S. swordfish production to non-U.S. production. NMFS was conservative in applying principles of economic analysis in the 2012 BiOp. For example, based on the fishery’s potential effort level of 5,500 sets per year, and the expected one-to-one displacement of foreign swordfish production, the proposed action would result in 20–29 fewer leatherback sea turtle mortalities annually from displaced foreign swordfish production to meet U.S. demand, or an overall decrease in leatherback mortalities of 14–23 individuals annually from foreign longline fisheries in the central and North Pacific. Similarly for loggerheads, after accounting for the direct effects of the proposed action and the indirect spillover effects, the 2012 BiOp concluded that the proposed action would result in 22–47 fewer loggerhead sea turtle mortalities annually or an annual reduction of 15–40 loggerhead mortalities from foreign longline fisheries in the central and North Pacific. However, because the mortality reduction data associated with the spillover effect are not as robust as those analyzed for direct effects, we did not ‘‘offset’’ the direct effects of the proposed action (6 leatherback and 7 loggerhead total mortalities) in our quantitative PVA models, such that the fishery would effectively be credited for mortalities avoided from foreign fisheries. Similarly, the 2012 BiOp reached a no-jeopardy conclusion with and without considering the beneficial VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 effects of spillover, and formulated the ITS only on the expected adverse affects of the proposed action. With respect to consumer awareness campaigns, NMFS maintains FishWatch (www.fishwatch.gov), a web site that provides consumers with easy-tounderstand science-based facts to help make smart, sustainable, and healthy seafood choices. See the response to Comment 33. Comment 35: NMFS should hold an independent review of the methods and findings in the 2012 BiOp. Response: NMFS’ information quality procedures do not require external peer review of biological opinions. However, some of the references in the 2012 BiOp were peer-reviewed, e.g., the Chan and Pan (2012) spillover effects paper, the Van Houtan and Halley (2011) climateforcing publication, and the Van Houtan (2011) PVA models paper. Further, the Center for Independent Experts also reviewed the Chan and Pan (2012) Technical Memorandum on spillover effects. Comment 36: The regulatory record establishes that, taken as a whole, the effects of the shallow-set fishery are beneficial to both leatherback and North Pacific loggerhead sea turtles. Response: In the 2012 BiOp, NMFS identified and analyzed the spillover effect as a potential indirect effect of the proposed action. NMFS believes that the proposed action will likely provide an overall benefit to sea turtle conservation by displacing the foreign effort of fisheries that follow less effective sea turtle mitigation measures. For further information regarding spillover effects, see the responses to Comments 33 and 34. Comment 37: NMFS should issue its final rule in a timely manner so that regulation of the shallow-set fishery may resume in a way that is consistent with applicable science and law. Response: NMFS agrees. Comment 38: The theory underlying all market transfer analysis is basically sound in that in a global economy a change in a commodity chain in one region will often have ripple effects across other regions. However, unless it can be shown that the swordfish that are not caught by Hawaiian swordfish producers are caught by others, leaving total global production unchanged, then the case for increased turtle bycatch does not exist. This type of analysis would require detailed swordfish stock analysis and DNA testing to determine how many swordfish not caught by Hawaii’s fishermen are caught by others, and the extent to which they augment existing production and do not simply displace it. None of the studies to date PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 60647 (Rausser et al. (2008) and Chan and Pan (2012)) have met this bar. Further research should be conducted to truly determine the impacts of Hawaii’s swordfish regulations on other non-U.S. swordfish fisheries. Until this is done, it would be prudent not to make the case that increased Hawaiian swordfish production actually decreases sea turtle mortality, as there is no robust evidence to support such a claim. If the government wants to increase allowable swordfish catch in Hawaii for economic reasons they should not use the (as of now) specious argument that this will actually improve the conditions for the global turtle population. Response: The study area in Chan and Pan (2012) on production displacement only considered the central and North Pacific. Peer-reviewed stock assessments have defined the great majority of the swordfish in this area as North Pacific swordfish, or as western and central Pacific and eastern Pacific swordfish under the two-stock scenario as described in a 2010 assessment of North Pacific swordfish. Chan and Pan (2012) indicate that U.S. swordfish production displaces non-U.S. production in the central and North Pacific almost one-for-one. The coefficient of the equation (¥1.04) implies that, on the margin, an increase of one unit of U.S. production causes a reduction of 1.04 units of non-U.S. production. For further information regarding spillover effects, see the responses to Comments 33 and 34. Comment 39: NMFS’ new biological opinion requires only observer coverage at rates that have been determined to be statistically reliable for estimating protected species interaction rates onboard Hawaii-based shallow-set longline vessels. NMFS gives no further indication what that level might be. Without 100 percent observer coverage, NMFS must gather and analyze raw data from a subset of vessels, and come up with an estimate of take for the fishery as a whole. The combination of that uncertainty and reduced reporting by vessels without observers could easily translate into a significant increase in take that would not be immediately detected by NMFS. Response: This final rule does not affect NMFS’ placement of an observer on every shallow-set trip. In 2011, the Hawaii longline observer program cost the taxpayers about $7.5 million, and the cost increases each year. NMFS must continually consider the cost of each of its scientific and management programs, including observers, while maintaining the programs’ effectiveness. The Council has requested from NMFS an analysis of observer coverage levels E:\FR\FM\04OCR1.SGM 04OCR1 emcdonald on DSK67QTVN1PROD with RULES 60648 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations for the shallow-set fishery that would continue to provide reliable estimates of turtle interactions, as an alternative to the current program. Comment 40: NMFS has failed to establish critical habitat for North Pacific loggerheads as required under the ESA. As a result, increasing takes of this distinct population segment in the swordfish fishery must be delayed, if not abandoned, until critical habitat is designated and the harm to the habitat from Hawaii longline swordfish operations assessed and mitigated. Response: NMFS is not required to delay or abandon this final rule until a determination is made regarding critical habitat for North Pacific loggerhead sea turtles. In the joint USFWS–NMFS determination of nine distinct population segments of loggerhead sea turtles (76 FR 58858, September 22, 2011), the agencies found that critical habitat was not determinable at this time, and invited interested parties to provide information related to the identification of critical habitat for the two loggerhead sea turtle DPSs occurring within the United States. Accordingly, critical habitat will be proposed and evaluated, as appropriate. Comment 41: NMFS must err on the side of conservation rather than swordfish expansion to ensure the survival and recovery of the endangered leatherback and North Pacific loggerhead sea turtles. Response: NMFS is required to comply with a number of laws in managing this fishery, including the Magnuson-Stevens Act and ESA. This rule is consistent with the 2012 BiOp and all applicable laws. It is necessary to allow the fishery the opportunity to achieve optimum yield on a swordfish stock that is healthy and underexploited, while still maintaining important conservation and management safeguards for sea turtles and other protected species. Comment 42: In light of radiation from Japan and mercury contamination, NMFS should ensure that the fish caught in the Hawaii shallow-set fishery are safe to eat before allowing increased takes of sea turtles in the swordfish fishery to increase supplies of swordfish. Given that the loggerhead sea turtles captured in the fishery originate from Japan, NMFS should analyze the potential exposure to radiation from the nuclear disaster, its impacts on the population, and mitigation of those impacts by reducing bycatch of sea turtle species in this fishery. Response: The U.S. Food and Drug Administration (FDA) and NMFS have high confidence in the safety of seafood VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 products in the U.S. marketplace or exported U.S. seafood products. At this time, there is insufficient information available on the potential effects of radiation on the North Pacific loggerhead sea turtles to determine what, if any, threat may exist. See the following Web sites for information about mercury in swordfish: www. hawaii-seafood.org/seafood-safety, www.fishwatch.gov/eating_seafood, and www.fda.gov/Food/FoodSafety/ProductSpecificInformation/Seafood. Comment 43: Although demand for and consumption of swordfish in the U.S. from all sources, foreign and domestic, is declining, NMFS seems to be attempting to subsidize a shrinking fishery with its efforts in Hawaii, American Samoa, along the U.S. West Coast and elsewhere in the Pacific without a clear need. Response: NMFS is required to establish conservation and management measures that achieve, on a continuing basis, the optimum yield from each U.S. fishery. This includes North Pacific swordfish, a stock that is healthy, and producing yields below MSY. Comment 44: NMFS should complete a new biological opinion and supplemental environmental impact statement that accurately assess the impacts of the fishery in the context of the serious threats and population declines facing leatherback and North Pacific loggerhead sea turtles. Response: The comment does not provide any specific objection regarding NMFS’ compliance with NEPA in preparing a Record of Environmental Consideration, such that it would allow NMFS to give meaningful consideration to the objection. Moreover, the 2012 BiOp presented and assessed the best available scientific and commercial information. Further, this final rule is within the range of actions analyzed in the prior environmental analyses, and there is no new information that would affect the decision on the environmental impacts of this action and analyses available. See the response to Comment 1 regarding compliance with ESA and the no-jeopardy conclusion in the 2012 BiOp. Changes From the Proposed Rule There are no changes to the proposed rule. Classification The Administrator, Pacific Islands Region, NMFS, determined that this rule is necessary for the conservation and management of the Hawaii-based shallow-set pelagic longline fishery and that it is consistent with the MagnusonStevens Fishery Conservation and PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 Management Act and other applicable laws. This action has been determined to be not significant for purposes of Executive Order 12866. The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS received no comments or new information regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. NMFS has determined that this action does not represent a substantial change to the action previously analyzed in the 2009 Final Supplemental Environmental Impact Statement on Amendment 18 to the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region, Modifications for the Hawaii-based Shallow-set Longline Swordfish Fishery (2009 FSEIS)(74 FR 65460, December 10, 2009, corrected at 75 FR 1023, January 8, 2010). NMFS has further determined that there are no significant new circumstances or information relevant to environmental concerns and bearing on the implementation of revised incidental interaction limits. A supplement to the 2009 FSEIS is, therefore, not required under NEPA. This action does not conflict with the provisions implemented to protect migratory birds. On August 24, 2012, the USFWS issued a 3-year Special Purpose Permit that authorizes the shallow-set fishery to take, possess, transport, and import 191 black-footed albatrosses, 430 Laysan albatrosses, 30 northern fulmars, 30 sooty shearwaters, and one short-tailed albatross. If the fishery exceeds any of these take numbers, NMFS and the USFWS would consult, and may take appropriate action. The permit requires NMFS to report all seabird hookings and entanglements to the USFWS each year, and to continue to develop ways to reduce seabird interactions. List of Subjects in 50 CFR Part 665 Administrative practice and procedure, Fisheries, Fishing, Hawaii, Longline, Sea turtles. E:\FR\FM\04OCR1.SGM 04OCR1 Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / Rules and Regulations Dated: October 1, 2012. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. § 665.813 Western Pacific longline fishing restrictions. fishery shall be closed, and that shallow-set longline fishing north of the Equator by vessels registered for use under Hawaii longline limited access permits will be prohibited beginning at a specified date until the end of the calendar year in which the sea turtle interaction limit was reached. Coincidental with the filing of the notification, the Regional Administrator will also provide actual notice that the shallow-set longline fishery shall be closed, and that shallow-set longline fishing north of the Equator by vessels registered for use under Hawaii longline limited access permits will be prohibited beginning at a specified date, to all holders of Hawaii longline limited access permits via telephone, satellite telephone, radio, electronic mail, facsimile transmission, or post. (ii) Beginning on the fishery closure date indicated by the Regional Administrator in the notification provided to vessel operators and permit holders and published in the Federal Register under paragraph (b)(2)(i) of this section, until the end of the calendar year in which the sea turtle interaction limit was reached, the Hawaii-based shallow-set longline fishery shall be closed. * * * * * (i) Vessels registered for use under Hawaii longline limited access permits may not be used to engage in shallowsetting north of the Equator (0° lat.) any time during which the shallow-set longline fishery is closed pursuant to paragraph (b)(2)(ii) of this section. * * * * * * [FR Doc. 2012–24536 Filed 10–3–12; 8:45 am] For the reasons set out in the preamble, 50 CFR Part 665 is amended as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for 50 CFR Part 665 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. 2. In § 665.802, revise paragraphs (ss) and (tt) to read as follows: ■ § 665.802 Prohibitions. * * * * (ss) Engage in shallow-setting from a vessel registered for use under a Hawaii longline limited access permit after the shallow-set longline fishery has been closed pursuant to § 665.813(b), in violation of § 665.813(i). (tt) Fail to immediately retrieve longline fishing gear upon receipt of actual notice that the shallow-set longline fishery has been closed pursuant to § 665.813(b), in violation of § 665.813(i). * * * * * ■ 3. In § 665.813, revise paragraphs (b)(1) and (b)(2), and paragraph (i) to read as follows: emcdonald on DSK67QTVN1PROD with RULES * * * * * (b) * * * (1) Maximum annual limits are established on the number of physical interactions that occur each calendar year between leatherback and North Pacific loggerhead sea turtles and vessels registered for use under Hawaii longline limited access permits while shallow-set fishing. The annual limit for leatherback sea turtles (Dermochelys coriacea) is 26, and the annual limit for North Pacific loggerhead sea turtles (Caretta caretta) is 34. (2) Upon determination by the Regional Administrator that, based on data from NMFS observers, the fishery has reached either of the two sea turtle interaction limits during a given calendar year: (i) As soon as practicable, the Regional Administrator will file for publication at the Office of the Federal Register a notification that the fishery reached a sea turtle interaction limit. The notification will include an advisement that the shallow-set longline VerDate Mar<15>2010 15:04 Oct 03, 2012 Jkt 229001 BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 111207737–2141–02] RIN 0648–XC277 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in the Herring Savings Areas of the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. AGENCY: NMFS is prohibiting directed fishing for pollock by vessels using trawl gear in the Winter Herring Savings SUMMARY: PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 60649 Area of the Bering Sea and Aleutian Islands (BSAI). This action is necessary to prevent exceeding the 2012 herring bycatch allowance specified for the midwater trawl pollock fishery in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 1, 2012, through 1200 hrs, A.l.t., March 1, 2013. FOR FURTHER INFORMATION CONTACT: Josh Keaton, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2012 herring bycatch allowance specified for the midwater trawl pollock fishery in the BSAI is 1,600 metric tons as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012). The Administrator, Alaska Region, NMFS, has determined that the 2012 herring bycatch allowance specified for the midwater trawl pollock fishery in the BSAI has been caught. Consequently, in accordance with § 679.21(e)(7)(vi), NMFS is closing directed fishing for pollock by vessels using trawl gear in the Winter Herring Savings Areas of the BSAI. The Winter Herring Savings Area of the BSAI is that part of the Bering Sea subarea that is between 58° N latitude and 60° N latitude and between 172° W longitude and 175° W longitude. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would E:\FR\FM\04OCR1.SGM 04OCR1

Agencies

[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Rules and Regulations]
[Pages 60637-60649]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24536]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 120416010-2476-01]
RIN 0648-BB84


Western Pacific Pelagic Fisheries; Revised Limits on Sea Turtle 
Interactions in the Hawaii 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: In this final rule, NMFS revises the annual number of 
incidental interactions allowed between the Hawaii-based shallow-set 
pelagic longline fishery, and leatherback and North Pacific loggerhead 
sea turtles. NMFS also makes administrative housekeeping changes to the 
regulations relating to the fishery. The rule implements the incidental 
take statement of the current biological opinion on the fishery and 
clarifies the regulations.

DATES: This final rule is effective November 5, 2012.

ADDRESSES: Copies of supporting documentation that provide background 
information on this final rule, identified by NOAA-NMFS-2012-0068, are 
available at www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: The Hawaii-based shallow-set pelagic 
longline fishery targets swordfish primarily on the high seas of the 
North Pacific Ocean. The Western Pacific Fishery Management Council 
(Council) and NMFS manage the fishery under the

[[Page 60638]]

Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific 
Region. The plan provides for, among other things, a limited-access 
program, vessel- and gear-marking requirements, vessel length 
restrictions, Federal catch and effort logbooks, large restricted 
fishing areas around the Hawaiian Archipelago, a vessel monitoring 
system, and annual protected species workshops. The plan also requires 
the use of gear and techniques for the safe handling and careful 
release of protected species, i.e., sea turtles, seabirds, and marine 
mammals. NMFS may issue a maximum of 164 longline permits for the deep- 
and shallow-set longline fisheries in Hawaii combined, and about 25-30 
vessels have been active in the shallow-set fishery in recent years. 
NMFS deploys an official observer on every shallow-set fishing trip 
(100 percent observer coverage).
    The fishery occasionally and incidentally interacts with (hooks or 
entangles) protected species, primarily leatherback and North Pacific 
loggerhead sea turtles, but also other protected species. Consistent 
with the terms of a no-jeopardy 2004 NMFS biological opinion (2004 
BiOp), the Council recommended and NMFS implemented a broad suite of 
sea turtle conservation and management measures for the fishery (69 FR 
17329, April 2, 2004), including annual interaction limits for 
leatherback and loggerhead turtles. NMFS currently allows the fishery 
to interact with up to 16 leatherback and 17 loggerhead sea turtles per 
year; these limits directly manage the impacts of the fishery on sea 
turtles. If the shallow-set fishery reaches either limit, NMFS closes 
the fishery for the remainder of the year.
    As required under section 7 of the Endangered Species Act (ESA), 
NMFS re-evaluated in 2012 the impacts of the continued operation of the 
fishery, as governed under the current suite of management measures 
(the proposed action), on marine species protected by the ESA (i.e., 
humpback whales, North Pacific loggerhead sea turtle distinct 
population segment (DPS), leatherback sea turtles, olive ridley sea 
turtles, and green sea turtles). NMFS concluded in a biological opinion 
dated January 30, 2012 (2012 BiOp), that the proposed action is not 
likely to jeopardize the continued existence of these five species, and 
is not likely to destroy or adversely modify designated critical 
habitat. The 2012 BiOp is an integral component to managing the 
shallow-set fishery, because the one-year incidental take statement 
(ITS, including reasonable and prudent management measures, and terms 
and conditions) forms the basis for regulations that specify the annual 
limits on leatherback and North Pacific loggerhead sea turtle 
interactions with the fishery that are necessary to manage the impacts 
of the fishery on sea turtles.
    In this final rule, NMFS is revising the annual limits on 
incidental interactions that may occur between the fishery and 
leatherback and North Pacific loggerhead sea turtles to 26 and 34 
interactions, respectively. If the fishery reaches either of the 
interaction limits in a given year, NMFS would close the fishery for 
the remainder of that year.
    NMFS is also making minor housekeeping changes to the longline 
regulations for clarity and consistency in terminology. NMFS is 
revising references to the ``shallow-set component of the longline 
fishery'' to read more simply the ``shallow-set longline fishery.'' The 
sections of Title 50 of the Code of Federal Regulations that contain 
these changes include Sec.  665.802 paragraphs (ss) and (tt), and Sec.  
665.813 paragraphs (b)(2)(i) and (b)(2)(ii), and paragraph (i).

Comments and Responses

    On June 11, 2012, NMFS published a proposed rule and request for 
public comment (77 FR 34334). The comment period for the proposed rule 
ended on July 11, 2012. NMFS received approximately 2,270 comment 
submittals on the proposed rule. About 2,180 were form letters 
associated with a non-governmental organization. Representatives of the 
longline fishery and non-governmental organizations provided additional 
comments, along with several private citizens. NMFS responds to 
comments received, as follows:
    Comment 1: Increasing the allowable leatherback and North Pacific 
loggerhead sea turtle interactions from 16 to 26 and 17 to 34, 
respectively, would violate the ESA and cause jeopardy.
    Response: NMFS disagrees. NMFS complied with all procedural and 
substantive requirements of the ESA for the proposed rulemaking. The 
NMFS Sustainable Fisheries Division consulted with the NMFS Protected 
Resources Division on the continued operation of the fishery with a 
gradual increase to a maximum of 5,500 sets per year, which resulted in 
the issuance of the 2012 BiOp. This final rule implements the ITS from 
the 2012 BiOp for leatherback and North Pacific loggerhead sea turtles. 
Both the 2012 BiOp and this rule comply with the ESA.
    The agency must ensure that any activity that it authorizes is not 
likely, 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. To 
carry out this mandate, NMFS consults with the appropriate agency 
(either USFWS or NMFS) on any Federal action that it determines may 
affect ESA-listed marine species. If the agency concludes that the 
proposed action is not likely to jeopardize the continued existence of 
a listed species or result in the destruction or adverse modification 
of critical habitat but, nonetheless, determines that the proposed 
action will result in the take of listed species, the agency must issue 
an ITS. The ITS establishes the allowable take of listed species that 
would otherwise be prohibited, and specifies those reasonable and 
prudent measures and terms and conditions that minimize the impact of 
such take.
    In 2004, following a multi-year court-ordered closure, NMFS 
reopened the fishery under a suite of sea turtle mitigation 
requirements, including the use of large circle hooks and fish bait, a 
set certificate program limiting effort at 2,120 annual sets, and 
compliance with the ITS in a no-jeopardy 2004 BiOp. The 2004 BiOp also 
required annual limits on the allowable number of leatherback and 
loggerhead sea turtles hooked or entangled in longline fishing gear by 
the fishery, specified at 16 leatherback and 17 loggerhead sea turtles. 
If the fishery reached either limit, NMFS would close the fishery for 
the remainder of the year. The 2004 BiOp also required NMFS to place 
observers on 100 percent of shallow-set fishing trips.
    In 2009, the Secretary of Commerce approved Amendment 18 to the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region. Amendment 18 removed the annual fishing effort limit and 
associated set certificate program to allow the fishery to achieve 
optimum yield of swordfish and other species, consistent with National 
Standard 1 of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). Optimum yield means the amount of fish that 
will provide the greatest overall benefit to the Nation, particularly 
with respect to food production and recreational opportunities, and 
taking into account the protection of marine ecosystems. At the time of 
Amendment 18's approval, domestic and foreign swordfish landings in the 
North Pacific amounted to about 60 percent of an estimated maximum 
sustainable yield (MSY) of

[[Page 60639]]

22,284 metric tons (mt) as documented in Amendment 18. As analyzed 
under Amendment 18, the proposed action of 5,500 annual sets represents 
nearly the maximum annual level of effort that the fishery achieved 
during the five-year period 1994-1999, but was still below the 9,925 
annual sets that would be necessary to produce MSY for the North 
Pacific swordfish stock, according to the 2004 stock assessment.
    In 2008, NMFS concluded in a biological opinion (2008 BiOp) that, 
among other things, Amendment 18 would not jeopardize the existence of 
any ESA-listed sea turtles, and included an ITS that allowed up to 16 
leatherback and 46 loggerhead sea turtle interactions before NMFS would 
close the fishery for the remainder of the year. Following litigation 
over the 2008 BiOp with the Center for Biological Diversity, Turtle 
Island Restoration Network, and KAHEA: The Environmental Alliance, the 
ITS for leatherback and loggerhead sea turtles and that portion of the 
rule implementing the ITS were remanded to the agency and vacated. 
Under the terms of a consent decree, NMFS was to complete a new 
biological opinion on the fishery within 135 days of the USFWS-NMFS 
final decision on a petition to identify and list nine distinct 
population segments of loggerhead sea turtles. Consistent with the 
consent decree, NMFS issued the no-jeopardy 2012 BiOp, which evaluated 
the continued operation of the fishery under the management measures 
established by Amendment 18, with fishing effort at up to 5,500 sets 
annually and incorporated the best available scientific and commercial 
information. For example, NMFS used sea turtles interaction rates with 
the fishery obtained from 100 percent observer coverage from 2004-2011. 
In the 2012 BiOp, NMFS considered the effects of the action within the 
context of the ``Status of Listed Species'' together with the 
`Environmental Baseline' and the ``Cumulative Effects'' to determine 
whether the action is likely to jeopardize the continued existence of 
listed species, or result in the destruction or adverse modification of 
designated critical habitat. NMFS concluded that the proposed Federal 
action is not likely to jeopardize the continued existence of any of 
the five listed species in the action area, or destroy or adversely 
modify designated critical habitat. Accordingly, NMFS issued an ITS 
that, consistent with the expected level of take at 5,500 sets 
annually, allows interactions with up to 26 leatherback sea turtles and 
34 North Pacific loggerhead sea turtles each year, along with 
reasonable and prudent measures designed to minimize the impact of 
fishery interactions.
    With respect to leatherback sea turtles, the 2012 BiOp concluded 
that, ``the incidental lethal (up to 4 nesting females annually) and 
non-lethal takes of leatherback sea turtles associated with the 
proposed action are not reasonably expected to cause an appreciable 
reduction in the likelihood of survival of the species.'' While 
acknowledging the adverse effect of any level of take and morality, 
NMFS found that the expected level of take from the overall action, 
including a small number of mortalities, is extremely small when 
considered together with all impacts described in the Status of the 
Species, Environmental Baseline, and Cumulative Effects sections, 
including other federally-authorized U.S. fisheries and foreign 
fisheries. The 2012 BiOp further noted that, even with the expected 
loss of up to four females annually, ``the affected population is 
expected to increase'' and would ``remain large enough to retain the 
potential to contribute to species recovery.'' The BiOp noted that the 
``proposed action does not appreciably impede progress on carrying out 
any aspect of the recovery program or achieving the overall recovery 
strategy,'' and that NMFS expects the ``overall population to continue 
to grow and to maintain genetic heterogeneity, broad demographic 
representation, and successfully reproduce.'' The biological opinion 
concluded that the proposed action would not affect the leatherbacks' 
``ability to meet their lifecycle requirements and to retain the 
potential for recovery.'' Accordingly, the biological opinion concluded 
that the proposed action was ``not reasonably expected to cause an 
appreciable reduction in the likelihood of survival or recovery of the 
species.''
    With regard to North Pacific loggerhead sea turtles, NMFS concluded 
that, although the proposed action would result in the mortality of up 
to one nesting female annually, ``this level of mortality would present 
negligible additional risk to the North Pacific DPS'' and would ``not 
prohibit the DPS from stabilizing or increasing, nor would it prohibit 
the DPS from reaching a biologically reasonable FENA (females estimated 
to nest annually) based on the goal of maintaining a stable population 
in perpetuity.'' The biological opinion noted that, although the 
climate-based population viability assessment (PVA) model reveals a 
declining population over the next 25 years, ``the population will 
remain large enough to retain the potential for recovery'' and that the 
proposed action ``does not appreciably impede progress on carrying out 
any aspect of the recovery program or achieving the overall recovery 
strategy.'' In particular, NMFS expects that the overall population 
will remain ``large enough to maintain genetic heterogeneity, broad 
demographic representation, and successful reproduction. The proposed 
action will have a small effect on the overall size of the population, 
and we do not expect it to affect the loggerheads' ability to meet 
their lifecycle requirements and to retain the potential for 
recovery.''
    Accordingly, under this final rule, NMFS will revise the annual 
limits on incidental interactions with leatherback from 16 to 26 
interactions and North Pacific loggerhead sea turtles from 17 to 34 
interactions. If the fishery reaches either of the interaction limits 
in a given year, NMFS would close the fishery for the remainder of that 
year (as required by current regulations). The revised limits are 
consistent with the 2012 BiOp, and are necessary to manage the impacts 
of the fishery on sea turtles while affording the fishery the 
opportunity to achieve optimum yield.
    NMFS is allowing the fishery to interact with leatherback and North 
Pacific loggerhead sea turtles consistent with the ESA. The sea turtle 
interaction limits under which the fishery currently operates are the 
product of a court-approved settlement, based on an eight-year old no-
jeopardy biological opinion that analyzed the expected level of take 
resulting from a fishery capped at 2,120 annual sets. By contrast, the 
2012 BiOp is based on the most current information available on sea 
turtle dynamics and demographics, and is supported by data from 100 
percent observer coverage during 2004-2011 on the fishery's 
interactions, which NMFS used to analyze the effects of the fishery on 
sea turtle populations. In light of our improved understanding of sea 
turtle populations and the effectiveness of sea turtle mitigation 
measures in reducing both the frequency and severity of interactions in 
the fishery, NMFS appropriately authorized incidental take that exceeds 
the level (16 leatherbacks and 17 loggerheads) that was supported by 
judgments made in 2004, when the fishery was being reopened under an 
experimental regulatory regime that was untested in the Pacific where 
the fishery operates.
    Finally, regarding compliance with the National Environmental 
Policy Act (NEPA), NMFS concluded that the action to revise the 
interaction limits for leatherback (to 26) and North Pacific loggerhead 
(to 34) sea turtles are within a range of interaction levels analyzed 
in

[[Page 60640]]

the 2009 final supplemental environmental impact statement (FSEIS) for 
Amendment 18. NMFS also concluded that the 2012 BiOp, while containing 
more recent scientific information regarding the natural status of sea 
turtle populations, spillover effects, and fishery interactions with 
green sea turtles, presented no substantial changes to the action 
proposed in Amendment 18, or new circumstances or significant 
information relevant to the environment or bearing on the action or its 
impacts that were not already considered in the 2009 FSEIS.
    Comment 2: Current management of the shallow-set fishery is causing 
jeopardy to leatherback and North Pacific loggerhead sea turtles. Until 
there is consistent evidence that both the Western Pacific leatherback 
and North Pacific loggerhead populations are significantly recovering, 
allowing incidental take and mortality of either species would be 
irresponsible and contrary to the mandates of the ESA. Furthermore, the 
Ninth Circuit has made clear ``even where baseline conditions already 
jeopardize a species, an agency may not take action that deepens the 
jeopardy by causing additional harm'' (National Wildlife Federation v. 
NMFS, 524 F.3d 917, 930 (9th Cir. 2008)).
    Response: NMFS disagrees that the action will cause jeopardy. 
Likewise, NMFS concluded that the fishery, operating under the current 
management plan, is not causing jeopardy to listed sea turtles. In the 
2012 BiOp, on which this action is based (and which provides related 
background information), NMFS relied on the best scientific and 
commercial information available to reach a no-jeopardy conclusion for 
the proposed action. Moreover, this action will not tip any sea turtle 
species into a state of jeopardy. See the response to Comment 1.
    Comment 3: NMFS has an obligation under the ESA to ensure that 
fishery operations do not appreciably lower the species' chances of 
recovery, in light of the significant baseline impacts, such as 
fisheries bycatch, and cumulative threats to survival facing 
leatherbacks and loggerheads. Removing more sea turtles from shrinking 
populations that face growing threats from climate change and other 
impacts is not consistent with NMFS' duty to ensure the survival and 
recovery of these species.
    Response: The NMFS and USFWS (1998) leatherback sea turtle recovery 
plan and loggerhead sea turtle recovery plan contain goals and criteria 
to achieve recovery including, but not limited to, monitoring of 
nesting activity, determining population trends, identifying stock 
boundaries, reducing incidental mortality in commercial fisheries, and 
ensuring protection of marine habitat. NMFS used the information from 
the recovery plans and other sources to develop the 2012 BiOp, 
including the baseline information and PVA models, and to reach the no-
jeopardy conclusion.
    As discussed in the 2012 BiOp, the proposed action will not impede 
progress on carrying out any aspect of the recovery plans or achieving 
the overall recovery strategies. The proposed action will not affect 
the majority of the recovery criteria or the highest priority tasks. We 
expect the overall leatherback and North Pacific loggerhead sea turtle 
populations to continue to maintain genetic heterogeneity, broad 
demographic representation, and successfully reproduce. The proposed 
action will have a small effect on the overall size of the populations. 
Therefore, NMFS does not expect the lethal and non-lethal takes of 
leatherback and North Pacific loggerhead sea turtles to cause an 
appreciable reduction in the likelihood of both their survival and 
recovery in the wild.
    Comment 4: NMFS should not increase the annual allowable, 
incidental interactions with leatherbacks and loggerheads, and NMFS 
should review the regulations and protect sea turtles from being caught 
and killed in the shallow-set fishery.
    Response: The Western Pacific Fishery Management Council and NMFS 
regularly review domestic fisheries management regulations, including 
how they relate to sea turtles and other protected species during 
public and agency meetings and during the rulemaking process. See the 
responses to Comments 1 and 3.
    Comment 5: Sea turtle bycatch in commercial fisheries is one of, if 
not the greatest, threat to the recovery of leatherbacks, and NMFS 
should be seeking ways to reduce takes of this species instead of 
increasing them in order to accommodate fishing interests. Fishing at 
the same rate will result in killing more turtles per unit of effort.
    Response: Most sea turtle interactions occur in foreign fisheries 
that lack sea turtle bycatch deterrent and mitigation regulations. NMFS 
has implemented a suite of fishery management measures designed to 
minimize sea turtle interactions and post-interaction mortality. Since 
the fishery re-opened in 2004, the required use of circle hooks and 
fish bait has reduced sea turtle interaction rates by approximately 83 
percent for leatherbacks and 90 percent for loggerheads compared to 
1994-2002, when the fishery was operating without these requirements 
(Gilman et al. 2007). Gilman et al. (2007) also demonstrated that the 
requirements have greatly reduced incidents of serious injury, e.g., 
the number of deeply hooked sea turtles. Additionally, handling and 
release requirements reduce sea turtle mortality. This rule will not 
alter or diminish these protective requirements.
    Comment 6: The proposed rule will result in an increased take and 
mortality of target and non-target fish, marine mammals (Bryde's 
whales, false killer whales, bottlenose dolphin, humpback whales, 
Risso's dolphins), and seabirds (black-footed albatross, Laysan 
albatross, short-tailed albatross). Moreover, the Hawaii swordfish 
fishery is among the fisheries with the highest amounts of bycatch in 
the U.S. despite its strict requirements on operations. This signals a 
need to reduce bycatch in the fleet, not increase bycatch under this 
action.
    Response: Because there would be no substantial change to the 
operational requirements of this fishery, NMFS does not expect this 
rule to affect the catch, interaction, and discard mortality rates of 
any fish stocks or protected species. NMFS does not expect bycatch 
rates to increase beyond the levels analyzed in the 2009 FSEIS. As 
described in the 2009 FSEIS, NMFS estimates fish bycatch in this 
fishery to be about 6-7 percent of the annual catch. NMFS does not 
expect substantial changes to the operation of the fishery in terms of 
fishing effort, amount of swordfish catch, fishing methods and gear, 
location of fishing effort (action area), capture rates of target, non-
target, and bycatch species, or impacts to their habitats that were not 
already considered in the 2009 FSEIS. Discard mortality for many 
species is unknown, but is not expected to increase because of the 
increase in the sea turtle interaction limits. The fishery lands and 
sells many of the fish species caught. Therefore, the fishery optimizes 
the use of most of the resources encountered. The fishery will continue 
to use the sea turtle, seabird, and marine mammal deterrents and 
mitigation measures that have effectively reduced and mitigated harm to 
incidentally-caught species.
    The only ESA-listed seabird that has the potential to interact with 
the fishery is the short-tailed albatross. Observers have not recorded 
any short-tailed albatross interaction with the fishery since NMFS 
began monitoring the fishery with observers in 1994. On

[[Page 60641]]

January 6, 2012, the USFWS issued a no-jeopardy biological opinion for 
the fishery. The fishery will continue to use proven seabird deterrents 
and mitigation measures that have effectively reduced bycatch.
    Comment 7: The proposed rule should be modified to: establish 
effort limits on the number of sets to minimize the bycatch of other 
non-target organisms; maintain observer coverage of no less than 100 
percent in the shallow-set fishery; establish time/area closures; 
dynamic area management; reduction of fishing effort; establish an 
incidental take limit of one leatherback or loggerhead, such that the 
fishery is closed upon reaching the one interaction limit; and 
shortening lines.
    Response: The suggested modifications are outside the scope of this 
rule, which revises the annual interaction limits for leatherback and 
North Pacific loggerhead sea turtles applicable to the fishery and 
continues the operation of the fishery under current requirements. 
Amendment 18, approved by the Secretary of Commerce and implemented by 
NMFS in 2010, considered and analyzed a broad range of alternatives, 
such as effort limits and time and area closures. See Amendment 18 for 
further information. The annual interaction limits in this rule are 
consistent with the ITS in the 2012 BiOp, which analyzed the continued 
operation of the fishery at a maximum annual effort of 5,500 sets 
annually. Since the ESA requires NMFS to consider the best available 
scientific and commercial information, NMFS had no basis with which to 
impose an annual interaction limit of one leatherback or loggerhead. 
Furthermore, an ITS of one would be contrary to the purpose of 
Amendment 18, which is to allow the fishery to achieve optimum yield, 
while continuing to protect sea turtles and other ESA-listed species. 
This action will maintain proven mitigation measures currently 
applicable to the fishery, such as circle hooks and safe handling 
techniques for protected species. This action does not change the 100 
percent observer coverage for the fishery.
    Comment 8: NMFS admits in the 2012 BiOp that the direct effects of 
the proposed action have a ``detectable,'' that is, appreciable, effect 
on the loggerhead sea turtle population. This meets the regulatory 
definition of an action that is likely to jeopardize the species.
    Response: The terms detectable and appreciable are not synonymous 
in the context of the ESA. The 2012 BiOp stated that the proposed 
action would have a detectable influence on North Pacific loggerheads 
but, after analyzing the status of the species, environmental baseline, 
effects of the action, and cumulative effects together, NMFS concluded 
that the proposed action would not likely jeopardize the survival and 
recovery of the species. Jeopardize means to engage in an action that 
reasonably would be expected 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.
    Comment 9: NMFS determined that the only way the Hawaii shallow-set 
longline fishery could reopen under the 2004 BiOp without jeopardizing 
leatherbacks and loggerheads would be to operate under the following 
restrictions: an effort limit of 2,120 sets annually, and interaction 
limits of 16 leatherbacks or 17 loggerheads, either of which, if 
reached, would result in the immediate closure of the fishery (72 FR 
46608; August 21, 2007).
    Response: The 2004 BiOp analyzed the proposed action recommended by 
the Council, including a limit of 2,120 shallow sets annually, among 
others. The Council based their recommendations on sea turtle 
interaction rates from longline fishing experiments in the Atlantic 
from 2001-2003 that tested sea turtle mitigation gear and safe handling 
techniques to find interaction limits applicable to the model fishery. 
That process resulted in interaction limits of 16 leatherbacks and 17 
loggerheads. These numbers did not represent the upper limit of 
interactions that would avoid jeopardizing these species, but rather 
they represented the number of anticipated interactions associated with 
the 2004 proposed action. While the 2004 BiOp concluded the interaction 
limits would not jeopardize these species, it did not conclude that 
these were the only interaction rates allowable under the ESA, because 
NMFS based the information on Atlantic experimental results.
    Based on 100 percent observer coverage from 2004-2011, the 2012 
BiOp found that actual interaction rates around Hawaii were lower for 
leatherbacks and loggerheads, compared to the Atlantic experiments from 
2001-2003. Relying on observed sea turtle interaction rates from the 
Hawaii shallow-set fishery from 2004-2011, the 2012 BiOp multiplied the 
proposed action of 5,500 sets per year by the average observed 
interaction rates per set to determine the interaction limits of 26 and 
34, for leatherbacks and North Pacific loggerheads, respectively. Using 
the best available scientific and commercial information, the 2012 BiOp 
similarly found that the continued operation of the fishery with 5,500 
sets annually would not likely jeopardize the continued existence of 
any ESA-listed species in the wild.
    Comment 10: NMFS should not increase the sea turtle interaction 
limits because both leatherbacks and North Pacific loggerheads species 
are ``critically endangered'' and likely to decrease in the future.
    Response: NMFS disagrees. NMFS evaluated the impacts of the 
continued operation of the fishery on leatherback and North Pacific 
loggerhead sea turtles, and concluded in the 2012 BiOp that the action 
would not likely cause jeopardy. This final rule conforms to the ITS 
that was prepared in accordance with ESA. See the response to Comment 1 
regarding compliance with ESA and the no-jeopardy conclusion in the 
2012 BiOp.
    Comment 11: In the context of the ESA, the proposed rule would 
appropriately continue to authorize the negligible levels of incidental 
leatherback and loggerhead take experienced in the shallow-set fishery. 
This process and the resulting agency findings convincingly and 
conclusively demonstrate that the effects of the shallow-set fishery on 
leatherback and North Pacific loggerhead sea turtle populations are 
negligible and that, for purposes of the ESA, the shallow-set fishery 
is not likely to jeopardize the continued existence of either species.
    Response: NMFS agrees that this action is not likely to jeopardize 
the continued survival and recovery of any ESA-listed species in the 
wild.
    Comment 12: In spite of conservation efforts for the small number 
of hawksbill sea turtles nesting and foraging around Hawaii, NMFS wants 
to increase the interaction limit for this species.
    Response: This rule does not address interaction limits for 
hawksbill turtles; it only revises the annual interaction limits for 
leatherback and North Pacific loggerhead sea turtles. There has been no 
recorded interaction with a hawksbill sea turtle in the fishery, and 
the probability of a hawksbill interaction is extremely unlikely. If 
the fishery does interact with a hawksbill sea turtle, NMFS would re-
examine the effects of the fishery on this species.
    Comment 13: Explain how NMFS enforces the interaction limits, and 
provide the historical annual numbers of interactions and fishery 
closures. The reported numbers of interactions are low or 
underreported.
    Response: NMFS observers document sea turtle interactions in the 
fishery.

[[Page 60642]]

Because there is an observer on each trip, NMFS is able to determine 
the number of turtles that interact with the fishery and does not 
believe numbers are low or underreported. In addition to observers, 
fishing vessel captains are required to report any interaction with 
protected species in Federal logbooks for all fishing trips. If the 
fishery reaches an annual interaction limit, NMFS closes the shallow-
set longline fishery north of the Equator through the end of the 
calendar year via direct and immediate notification (e.g., satellite 
telephone, email, etc.) to vessel owners, permit holders, captains, and 
observers. NOAA's Office of Law Enforcement investigates potential 
violations of the ESA.
    In 2006, the fishery reached the interaction limit for loggerhead 
sea turtles and, in 2011, the fishery reached the limit for leatherback 
sea turtles. Both times, NMFS closed the fishery for the rest of the 
calendar year. For more information on annual sea turtle interactions 
in the shallow-set longline fishery, see the 2012 BiOp and 
www.fpir.noaa.gov/SFD/SFD_turtleint.html.
    Comment 14: There is no justification for setting kill limits that 
affect survival numbers, genetic diversity, unreported bycatch, and 
other unknown factors.
    Response: Under ESA, NMFS may authorize the fishery to interact 
with protected species that would otherwise be prohibited, if conducted 
pursuant to a lawful activity, and if conducted in accordance with the 
terms and conditions of a no-jeopardy biological opinion and ITS. The 
annual interaction limits specified in this rule conform to the ITS in 
the 2012 BiOp. NMFS believes most interactions do not result in 
mortality. In fact, since 2004, NMFS has no documented direct 
observation of any sea turtle mortality in the shallow-set fishery with 
100 percent observer coverage. However, in the 2012 BiOp, NMFS 
conservatively estimated post-interaction mortality rates of 22.0 
percent for leatherbacks and 18.6 percent for North Pacific 
loggerheads, based on factors such as whether there is trailing gear, 
the placement and location of the hook, degree of entanglement, and 
physical condition. In addition, this rule does not change the 100 
percent observer coverage for the fishery.
    Comment 15: The proposed rule correctly sets annual interaction 
limits for leatherback and North Pacific loggerhead sea turtles that 
are consistent with the agency's recommendations, as set forth in the 
2012 BiOp.
    Response: NMFS agrees.
    Comment 16: The proposed action is similar to NMFS' failed attempt 
in the 2008 BiOp and Amendment 18 where NMFS proposed to raise the 
annual incidental interaction limit for leatherback sea turtles from 16 
to 17, and the limit for loggerheads from 17 to 46.
    Response: The action analyzed under Amendment 18 and the 2009 
FSEIS, and subsequently implemented by NMFS in 2010, raised the annual 
loggerhead interaction limit from 17 to 46, but did not change the 
interaction limit for leatherbacks. Under the process established by 
Amendment 18, interaction limits are to be established consistent with 
a biological opinion prepared under section 7 of the ESA. The 2012 BiOp 
satisfies this requirement. See the response to Comment 1.
    Comment 17: The Magnuson-Stevens Act requires NMFS to manage 
fisheries responsibly to minimize bycatch, protect habitat, and prevent 
overfishing. As such, it would be irresponsible and illegal of NMFS to 
approve this proposed rule. NMFS continues to promote non-sustainable 
longline and drift gillnet fishing gear, violating laws and continually 
eroding the credibility of fishery management agencies.
    Response: In addition to minimizing impacts on protected species, 
NMFS is required to manage fisheries sustainably by achieving optimal 
yield. The Secretary of Commerce approved, and NMFS implemented, the 
management program established in Amendment 18 to allow the fishery to 
achieve optimal yield of the swordfish stock, which is healthy, not 
subject to overfishing, and underexploited. The fishery ecosystem plan 
for pelagic species manages interactions and post-interaction mortality 
by continuing mitigation measures that have a proven effectiveness, 
including the use of large circle hooks, fish bait, and safe handling 
gear and procedures for protected species. The current action does not 
affect NMFS' ability to protect essential fish habitats and prevent 
overfishing. NMFS monitors the fishery to detect changes and would work 
with the Council to develop management measures if overfishing ever 
becomes a concern. An incidental benefit of Amendment 18 may be to 
provide positive benefits to non-target stocks. For example, the 
reduction in regulatory barriers may lead fishermen in the deep-set 
fishery to participate in the shallow-set fishery, thereby reducing 
fishing pressure on bigeye tuna stocks, which are experiencing 
overfishing. NMFS has no information indicating that the fishery is not 
operating sustainably.
    In 1992, the United Nations banned high seas drift gillnet fishing. 
Drift gillnets are not allowed in Federal waters around Hawaii or other 
U.S. Pacific Islands. The USA is a recognized leader in fisheries 
management worldwide and the Hawaii shallow-set longline fishery is 
among the most strictly regulated and sustainable suppliers of fresh 
seafood. NOAA's Office of Law Enforcement investigates potential 
violations of all applicable laws.
    Comment 18: Hawaii's sea turtles and monk seals are important for 
tourism, because people enjoy diving and swimming with them. There are 
not enough of them, and they have been on the decline in Hawaii. Do not 
change how many sea turtles can be killed by lines or hooks before 
stopping fishing.
    Response: Hawaii tourists enjoy seeing green sea turtles and, 
occasionally, hawksbill sea turtles. The numbers of nearshore green sea 
turtles have been increasing in Hawaii for over three decades, and the 
recent trend in the numbers of nesting hawksbill sea turtles in Hawaii 
is stable. The shallow-set fishery operates hundreds of miles offshore 
in deep ocean waters where the density of green sea turtles is lower. 
The fishery interacted with six green sea turtles from 2004-2011, and 
there have been no reported or observed interactions with hawksbills. 
Based on very low densities of hawksbill sea turtles in the action 
area, and the lack of any interactions with longline fisheries around 
Hawaii, an interaction with a hawksbill sea turtle is extremely 
unlikely.
    The fishery also will not likely affect monk seals. State of Hawaii 
and Federal laws protect sea turtles and monk seals; longline fishing 
is not allowed in nearshore waters around Hawaii, from the shoreline to 
about 25 to 75 nautical miles from shore.
    Comment 19: The United States has the power and influence to 
persuade other nations to help save sea turtles from drowning in 
fishing nets. There should be regulation on what kinds of nets the 
fisheries can use. Turtle hatchback nets have seen some success with 
fisheries, so that could be a place to start. We cannot afford to wait 
and must lead by educating and teaching other countries that all 
vessels must be required to have turtle excluder devices (TEDs). Our 
government must check to make sure that the TEDs are in place and 
working.
    Response: NMFS agrees, and works to develop fishing gear that 
conserves protected resources to the extent practicable. Fishing with 
nets, including trawls, is prohibited in Federal waters around Hawaii 
and other U.S. Pacific Islands. NMFS is also active in efforts to

[[Page 60643]]

reduce interactions with protected resources in fisheries worldwide. 
The U.S. participates in international fisheries management 
organizations (RFMOs) worldwide, including the Western and Central 
Pacific Fisheries Commission (WCPFC) and Inter-American Tropical Tuna 
Commission (IATTC) in the Pacific. Due to efforts by the U.S. in these 
RFMOs, proven sea turtle bycatch mitigation measures required in Hawaii 
are now required in other countries and by RFMOs. NMFS continues to 
collaborate with foreign agencies and conservation organizations, to 
develop conservation measures and responsibly manage fisheries.
    Comment 20: The Magnuson-Stevens Act and MMPA provide a process by 
which NMFS must identify nations whose fishing practices result in the 
bycatch of protected living marine resources, including sea turtles, 
and certify whether each nation or, in the alternative, imported 
shipment, meets U.S. requirements for bycatch reduction. Specifically, 
``were harvested by practices that do not result in bycatch of 
protected marine species, or were harvested by practices that * * * 
include mandatory use of circle hooks, careful handling and release 
equipment, and training and observer programs * * *.'' Therefore, NMFS 
should restrict swordfish imports from fisheries that observe lower sea 
turtle and marine mammal conservation standards and, therefore, 
effectively reduce protected species mortality.
    Response: The purpose of this rule is to implement the ITS from the 
2012 BiOp for the shallow-set fishery, consistent with Amendment 18. 
Accordingly, the comment is outside the scope of this rule. However, 
NMFS works to identify fisheries that have high incidences of 
interactions with sea turtles and other protected species, and is 
actively engaged in efforts to manage fisheries bycatch through 
membership in international conventions such as WCPFC and IATTC.
    Comment 21: The existing fishery, as regulated since 2004, has 
reduced loggerhead and leatherback bycatch by 97 [sic] percent and 83 
percent, respectively, from prior levels, and every loggerhead and 
leatherback sea turtle that has interacted with the fishery during this 
time has been released alive.
    Response: NMFS agrees, and this final rule will continue these 
successful measures.
    Comment 22: The capture and entanglement of marine life on 
longlines reduces the efficiency of fishing operations and adds 
needless costs. NMFS must consider the negative economic impacts on the 
fishery to increased levels of sea turtle take, in addition to the 
potential benefits that have been described.
    Response: When these measures were implemented, NMFS considered 
efficiency in utilization of fishery resources, minimizing costs, and 
bycatch, as required under the Magnuson-Stevens Act. NMFS has no 
information to conclude that this rule will impose additional costs on 
fishery participants or increase inefficiency in utilizing fishery 
resources, and NMFS certified under the Regulatory Flexibility Act to 
the Small Business Administration that this action would not have a 
significant economic impact on a substantial number of fishing 
businesses.
    Comment 23: The effects analysis in the 2012 BiOp ignores sub-
lethal effects of hooking or entangling turtles, which can render them 
less able to feed, swim, or avoid predation. Instead, the biological 
opinion's jeopardy analysis focuses on how many of the interactions 
between turtles and longline gear will result in mortality.
    Response: NMFS based this rule on the best available scientific and 
commercial information, including an analysis of sub-lethal effects and 
post-interaction mortality, as documented in the 2012 BiOp. While NMFS 
cannot predict whether a sea turtle will breed, swim, feed, or avoid 
predation after an interaction, NMFS evaluates whether the injuries are 
serious enough as to make survival unlikely, using science-based 
criteria.
    Comment 24: Provide clarification for the proposed regulation in 
Sec.  665.813(2)(i) that states, as soon as practicable the shallow-set 
longline fishery shall be closed. This vague statement seems like it 
could be taken advantage of quite easily if requirements or punishment 
were lacking.
    Response: Because of the inherent difficulty of communicating with 
vessels at sea, it is not always possible to provide immediate notice 
of a fishery closure to participants. However, NMFS provides notice to 
fishermen as soon as practicable in several ways. Constructive notice, 
in the form of a notification in the Federal Register, and actual 
notice via telephone and email to vessels owners on land and vessel 
captains at sea. This process to publish a notice in the Federal 
Register may take several days. NMFS places telephone calls and text 
messages to vessel owners and captains much more quickly. For example, 
when NMFS closed the fishery in 2011, we were able to reach all owners 
and captains, either directly or through observers on board the 
vessels, within several hours of reaching the interaction limit. NOAA's 
Office of Law Enforcement investigates potential violations of all 
applicable laws.
    Comment 25: The proposed rule explained that there was no 
significant economic impact, yet there was no assessment provided. This 
begs the question of why revise the amount of turtle interactions if it 
means little to no impact on the economy? If there is no economic gain, 
then sea turtles should not be placed in more danger.
    Response: This final rule will provide the swordfish fishery with 
the opportunity to achieve optimal yield for a fishery resource that is 
currently healthy and underexploited, while still maintaining important 
conservation and management safeguards for protected species. NMFS 
prepared a mandatory Regulatory Impact Review (RIR) under Executive 
Order 12866 on April 13, 2012, and made it available to the public 
during the public comment period at www.regulations.gov as document 
NOAA-NMFS-2012-0068-0005. In the RIR, NMFS analyzed the economic 
impacts on commercial fishery participants, and determined that the 
impacts would not be significant. This determination addresses the 
economic burden on the economy and the fishery, and does not suggest 
that the action would not have positive economic results.
    Comment 26: The biological opinion, record of environmental 
consideration, and proposed rule did not recognize the proposed 
expansion of the California drift gillnet fishery discussed at the 
Pacific Fishery Management Council meeting in March 2012. The impacts 
to Western Pacific leatherback populations as a result of increased 
take in the American Samoa longline fishery as well as the California 
drift gillnet fishery must be considered and mitigated before making 
any determinations on increased take in the Hawaii swordfish longline 
fishery.
    Response: NMFS disagrees. Actions taken by the Pacific Council in 
March 2012 relating to the California drift gillnet fishery and Pacific 
leatherback conservation area are preparatory and/or preliminary as to 
potential future action, if any, that the Pacific Council and NMFS 
might take. Given the uncertainty regarding the nature and scope of any 
future Federal action, or whether any Federal action will be taken at 
all, NMFS is unable to predict the potential effects any proposal from 
the Pacific Council on the environment or protected species at this 
time.

[[Page 60644]]

    With respect to the American Samoa longline fishery, NMFS 
considered, under a separate 2010 biological opinion, the impact of the 
American Samoa longline fishery on sea turtles. Since implementation of 
gear requirements to protect turtles, NMFS has not documented any 
additional sea turtle interactions in the American Samoa longline 
fishery. Although NMFS has taken action to mitigate the impact of the 
American Samoa longline fishery on sea turtles, we know of no 
requirement to demonstrate effectiveness of those measures prior to 
authorizing the continued operation of the Hawaii shallow-set fishery.
    Comment 27: The proposed action to allow 34 loggerhead sea turtle 
takes, making up seven mortalities a year, would be an increase in the 
government-authorized killing of what is now an endangered distinct 
population that, according to the climate-based PVA model, is clearly 
at high risk of extinction. The classical PVA model portrays an 
optimistic look for the loggerhead population and makes unrealistic 
assumptions that all environmental and human caused impacts will remain 
constant. NMFS discounts the classical PVA model because it is driven 
primarily by the last three years of loggerhead nesting, not the long-
term trend showing a significant decline in the population. Therefore, 
NMFS should not allow an increase in sea turtle interaction levels.
    Response: The 2012 BiOp is largely a qualitative evaluation of the 
general direction and magnitude of the probabilities projected in the 
climate-based PVA model, informed by relevant information from other 
sources. NMFS acknowledges that both the classical and climate-based 
approaches have limitations. Although the classical PVA model projected 
robust growth of the loggerhead population based on a linear projection 
of nesting data, we discounted that model specifically because the 
classical PVA model predicts future population sizes in linear fashion 
when many species, especially sea turtles, have populations that 
oscillate over time due to factors for which the model cannot account.
    The climate-based PVA model, with results that differed from the 
classical PVA model, was more rigorous in applying data from the 
Pacific Decadal Oscillation (PDO) and, therefore, more useful to the 
analysis. According to Van Houtan (2011), the climate-based PVA model 
captures climate dynamics through two mechanisms: Juvenile recruitment 
and breeding remigration. This model recognizes that females do not 
breed annually; rather, breeding occurs when ocean conditions are 
sufficient for females to reproduce. In addition, juveniles are 
considered more susceptible to oceanographic variability as they have a 
limited ability to exploit their surroundings for food. Van Houtan and 
Halley (2011) concluded that loggerhead nesting varies synchronously 
within regions, suggesting that climate pressures operating over large 
geographic areas and time series account for periods of high and low 
abundance.
    Considering the above, however, and given that a small number of 
sea turtle experts only recently developed the climate-based PVA model 
and that it uses a relatively short 25-year predictive period, we were 
cautious not to rely completely on any one model. NMFS chose to proceed 
carefully with a quantitative and qualitative empirical evaluation of 
the climate-based PVA model, along with inputs from multiple experts 
and sources. Based on this approach, we predicted an oscillating 
decline of the population below a 50-percent quasi-extinction threshold 
within one generation (25 years) due largely to climate-forcing 
factors. As noted in the 2012 BiOp, this threshold does not mean that 
the population will become functionally extinct; rather, it is an 
assumed fraction of the current population size (in this case, 50 
percent) by which the population projections were modeled.
    The fishery's impact, though detectable, would not appreciably 
reduce the likelihood of the North Pacific loggerhead's survival and 
recovery, in that the population would remain large enough to maintain 
genetic heterogeneity, broad demographic representation, and successful 
reproduction. In particular, with an adult female nesting population 
conservatively estimated at 7,100, the effect of the removal of one 
adult female under the proposed action (0.35 percent of the estimated 
total population over 25 years) would be insignificant, and that the 
additional risk to the DPS that would result from loss of one adult 
female annually is negligible. NMFS has no empirical basis with which 
to leave the current 16 leatherback and 17 loggerhead sea turtle 
incidental take levels in place.
    Comment 28: Data input into both the classical and climate-based 
PVA models from converting juveniles to adult equivalents using central 
estimates of North Pacific loggerhead sea turtle age (13 years old) and 
post-hooking mortality (18.6 percent) is problematic and overly risky. 
NMFS wrongly assumes that 100 percent of the mortalities are juveniles 
for calculating the adult equivalent mortality after stating that 96 
percent of mortalities are juveniles from direct observation of 
carapace length. Turtles may be older and closer to reproductive age 
than estimated, and there is substantial uncertainty in the post-
hooking mortality estimates and actual mortality could be much greater.
    Response: NMFS relied on the best scientific and commercial 
information available in developing the 2012 BiOp, which formed the 
basis for this final rule. As discussed in section 7 of the BiOp, 96 
percent of loggerheads captured in the fishery were juveniles with the 
most common carapace length being about 57 cm. Based on studies 
conducted on loggerhead turtles in the Atlantic, this size turtle is 
equivalent to a 13-year-old turtle (there are no size-at-age 
comparisons for loggerhead turtles in the Pacific). In addition, NMFS 
used three different survival rates established for turtles between the 
ages of 13 and 25. NMFS applied a conversion formula to determine the 
annual effect of the action on adult females. In order to estimate 
adult equivalents that will be affected by the action, survival rates 
(Snover 2002) were applied to three distinct life stages that would 
occur between age 13 and the age at first reproduction estimate of 25 
years (2012 BiOp Figure 4c and Table 6; Van Houtan 2011). The three 
survival rates applied to convert juveniles to adults were 0.81, 0.79, 
and 0.88 (Snover 2002, Van Houtan 2011). Seven juvenile mortalities 
result in the annual removal of the equivalent of one adult female 
(0.31 adult females round to 1) (2012 BiOp Figure 4c and Table 6; Van 
Houtan 2011), which included that female's reproductive potential and 
the lost reproductive potential of the unborn hatchlings. NMFS rounded 
this number to one, because the mortality of a fraction of a turtle is 
not biologically realistic and, therefore, made the estimate much more 
precautionary.
    The calculation of adult female equivalents was rounded to the 
nearest significant digit, which conservatively accounts for variation 
in percentage of adult female equivalents. The difference to the 
mortality estimate if we included four percent of adults (assuming 96 
percent are juveniles) in our calculation would mean an additional 0.13 
adult female equivalent, which when added to 0.43 would still round up 
to 1 adult female mortality annually. Therefore, this single adult 
female equivalent mortality per year is a precautionary estimate that 
accounts for variation in the model's underlying assumptions.
    NMFS derived the post-interaction mortality rates used in the 
effects

[[Page 60645]]

analysis from a workshop that developed criteria for assigning post-
interaction mortality values based upon identified variables, including 
hook placement, degree of entanglement, and physical condition (Ryder 
et al. 2006). NMFS relied on a conservative and established approach 
for applying its guidance on sea turtle post-interaction mortality 
rates in developing the 2012 BiOp. Therefore, the mortality rates did 
not appear to be over- or underestimated.
    Comment 29: The climate-based PVA model is inconsistent with 
empirical nesting data, and the results conflict strongly with the 
classical PVA model. Therefore, there is no justification for NMFS 
using the climate-based PVA model as a basis for a no jeopardy finding, 
as it is directly contrary to the best available science.
    Response: The 2012 BiOp analysis is largely a qualitative 
evaluation of the general direction and magnitude of the probabilities 
projected in the climate-based PVA model, informed by other relevant 
information from other sources. NMFS acknowledged that both the 
classical and climate-based approaches have limitations. For example, 
although the classical PVA model projected a decline in the leatherback 
population based on a linear projection of nesting data, NMFS 
discounted the model because of its inherent limitations. In 
particular, NMFS noted that the classical PVA model predicts future 
population sizes in linear fashion when many species, especially sea 
turtles, have populations that oscillate over time due to factors for 
which the model cannot account. NMFS found that the climate-based 
model, which differed from the classical PVA model, was more rigorous 
in applying actual data (i.e., PDO data) and, therefore, more useful to 
our analysis. According to Van Houtan (2011), the climate-based PVA 
model captures climate dynamics through two key turtle life stages: 
neonates and nesting females. This model recognizes that females do not 
breed annually, but when ocean conditions are sufficient for females to 
reproduce. In addition, juveniles are considered more susceptible to 
oceanographic variability as they have a limited ability to exploit 
their environs for food. Van Houtan and Halley (2011) concluded that 
sea turtle nesting varies synchronously within regions, suggesting that 
climate pressures operating over large geographic areas and time series 
account for periods of high and low abundance.
    However, given that the climate-based PVA model was only recently 
developed by a small number of sea turtle experts, and its relatively 
short 25-year predictive period, NMFS was cautious not to rely 
completely on any one model, and elected to proceed carefully with a 
quantitative and qualitative empirical evaluation of the climate-based 
PVA model along with inputs from multiple experts and sources, where 
available. Based on our analysis, NMFS anticipates a rebound of the 
leatherback population due to decadal oscillations in the North Pacific 
Ocean and that the number of nesting females will increase over 80 
percent by the year 2035. Further, when NMFS analyzed the proposed 
action with the annual mortality of four adult females, there is a 
measureable loss to the population, but the population still grows. We 
determined that the proposed action would not appreciably reduce the 
likelihood of survival and recovery of the species in the wild. We 
expect the overall population to continue to grow and to maintain 
genetic heterogeneity, broad demographic representation, and successful 
reproduction. Further, we expect the proposed action to have a small 
effect on the overall size of the population, and we do not expect it 
to affect the leatherbacks' ability to meet their lifecycle 
requirements and to retain the potential for recovery.
    Comment 30: NMFS limits jeopardy analysis to only the next 25 years 
and does not adequately assess long-term threats, extinction risk, or 
jeopardy, for a long-lived species like sea turtles. Recent studies 
highlight the serious threats future climate change poses to endangered 
turtles, threats that would only be compounded by the substantial 
increases in fishery-related take the agency proposes to authorize. See 
Conner, 848 F.2d at 1454 (NMFS ``cannot ignore available biological 
information''); see, e.g., Saba et al. (2012); Tomillo et al. (2012). 
Both of these peer-reviewed studies project climate change-related 
impacts to the year 2100, demonstrating that NMFS could have, but 
failed to, model such impacts far beyond the 25 years with which the 
agency contented itself.
    Response: The ESA requires NMFS to make predictions only as far as 
it can adequately explain reliance on the data. NMFS evaluated the 
effects of this rule, as analyzed in the 2012 BiOp, over the next 25 
years, which corresponds to the forecast limitations of the climate-
based PVA model. The climate-based model uses the historic nesting data 
for North Pacific loggerheads, but then adds the long-term dynamics of 
climate forcing on the population. Van Houtan and Halley (2011) 
demonstrated that climate plays a primary role in juvenile recruitment 
for North Pacific and Northwest Atlantic loggerhead populations. Their 
model accurately accounts for the last several decades of nesting 
trends at various spatial scales in two different populations and 
accounted for annual fluctuations over the 20-30 years. NMFS relied on 
the best available information in projecting out to 25 years. For 
further information on the reliance on the PDO, see Van Houtan and 
Halley (2011) and Van Houtan (2011).
    Papers referenced by the commenters regarding Eastern Pacific 
leatherbacks only evaluate land-based climate change effects, such as 
sand temperature on hatchlings, which is why they could project out to 
2100. The climate-based PVA model relies on the strong correlation that 
exists between sea turtle population trends and the Pacific Decadal 
Oscillation (PDO). The PDO cannot be predicted beyond what information 
we now have, and is currently limited to the next 25 years; therefore, 
the model cannot forecast climate-forcing population trends beyond that 
period. The correlation between hatchling success and favorable oceanic 
conditions prior to nesting is poorly understood, and NMFS cannot 
directly translate effects on the Eastern Pacific leatherback to the 
Western Pacific leatherback population. Since 1995, none of the genetic 
samples collected from interactions in the shallow-set fishery is from 
the Eastern Pacific leatherback population.
    Comment 31: The climate-based PVA model does not account for 
cumulative effects of other impacts. It does not include other 
anthropogenic mortalities (e.g., bycatch in other fisheries), rather 
just the direct effects of the proposed action.
    Response: NMFS based this rule on the 2012 BiOp, which used a 
climate-based PVA model that examined bottom-up climate forcing at two 
turtle life stages, both with and without the proposed action. The 2012 
BiOp considered other anthropogenic threats and sources of mortality, 
for example, bycatch in other fisheries, in Status of the Species, 
Environmental Baseline, and Cumulative Effects sections. The no-
jeopardy determination in the opinion is based on the effects of the 
action within the context of the species' status, environmental 
baseline, and cumulative effects to determine if the proposed action 
analyzed in the 2012 BiOp can be expected to have direct or indirect 
effects on threatened and endangered species that appreciably reduce 
the likelihood of surviving and recovering in the wild by reducing 
their reproduction, distribution, or numbers.

[[Page 60646]]

    Comment 32: NMFS failed to consider information (e.g., Tapilatu et 
al., unpublished) that indicates that leatherback sea turtles are 
declining at a much faster rate than analyzed in the 2012 BiOp and are 
at imminent risk of extinction. NMFS also fails to acknowledge that its 
own analysis reveals that leatherback sea turtles would experience a 
much higher rate of decline and that the proposed action is deepening 
the baseline conditions that are causing jeopardy.
    Response: This rule is based on analyses in the 2012 BiOp, which 
considered all relevant information relating to leatherback sea turtle 
population status and trends, including Tapilatu et al. (unpublished). 
The 2012 BiOp, Status of the Species section for leatherbacks 
specifically acknowledged anecdotal reports from the early 1980s 
suggesting declines in leatherback nesting prior to reliable nest 
counts beginning in 1993. In addition, the 2012 BiOp considered 
information relating to the nesting population of the Jamursba-Medi 
component of the Western Pacific leatherback population from 1993-2010, 
which includes the Bird's Head peninsula as addressed by Tapilatu et 
al. (unpublished) and others, with the overall trend slightly 
declining. See also the responses to Comments 1, 2, and 3.
    Comment 33: A central theme throughout the BiOp is the argument 
that allowing U.S. fishermen to kill more leatherback and loggerhead 
sea turtles will actually save more turtles globally in the long run. 
NMFS has specifically failed to demonstrate that production in other 
countries has increased or will increase to meet U.S. demand. It is 
entirely reasonable to conclude that international fisheries for 
swordfish will operate, if not expand, regardless of the Hawaii 
shallow-set fishery. Conversely, there is no empirical evidence to 
suggest that increased domestic production will result in decreased 
fishing effort by other swordfish producing nations. Ultimately, the 
Chan and Pan (2012) results depend on their underlying assumption that 
sea turtle interaction rates are higher from the countries from which 
the U.S. imports swordfish, not on actual data showing that this 
necessary condition holds. NMFS does not present clear evidence that 
increases in U.S. swordfish production lead to reductions in overall 
global swordfish effort. Given that the Hawaii shallow-set fishery has 
not hit its set limit even once since 2004 (and hit the cap on turtle 
take in only two years) and annual effort has varied from a low of 135 
in 2004 to a high of 1,875 sets in 2010, foreign fishermen have had no 
way of knowing what level of domestic fishing would take place in any 
given year since the fishery reopened.
    Response: In the 2012 BiOp, NMFS carefully evaluated the best 
available scientific and commercial information regarding the 
beneficial spillover effects from the Hawaii shallow-set fishery. The 
analysis considered whether sea turtles are affected, if and when the 
production by foreign fleets (that are known to have higher turtle 
interaction rates) displaces U.S. swordfish production (Hawaii 
represented 74 percent of all U.S. Pacific landings before 2001) in the 
same general area of the central and North Pacific. Chan and Pan (2012) 
conducted a new study of production displacement that was not 
considered by Rausser et al. in 2008, and presented empirical data to 
establish that, while U.S. swordfish production in the Pacific Ocean 
declined, foreign production increased. Between 1991 and 2009, 
swordfish production in the eastern central and northeast Pacific, 
where the Hawaii shallow-set fishery operates, had been stable or 
declining slightly, whereas production in the western central and 
northwest Pacific had trended upward, particularly after 1996. Using 
data on 1999-2009 global swordfish production from the Food and 
Agriculture Organization of the United Nations, the authors 
demonstrated that the foreign production in the central and North 
Pacific increased when the U.S. swordfish production decreased, and 
vice versa. The authors also used these empirical data to measure the 
degree of swordfish production displacement between U.S. and non-U.S. 
fishermen, and found the degree of displacement to be one-to-one. Chan 
and Pan (2012) incorporated variability and randomness in production 
throughout the time series. The result of the model showed fishing 
effort and capacity may be affected by regulation and, therefore, 
demonstrated a correlation of swordfish production displacement between 
foreign and U.S. fisheries. Based on this analysis, NMFS identified 
spillover effects as potential indirect effects of the proposed action. 
NMFS did not, however, incorporate these beneficial spillover effects 
in our quantitative PVA models, and NMFS reached the no-jeopardy 
conclusion both with and without the beneficial effects of spillover, 
formulating an ITS only on the expected adverse effects of the proposed 
action.
    Comment 34: The NMFS 2012 Technical Memorandum on spillover effects 
is founded on a number of unsupported assumptions, not on any actual 
bycatch or observer or swordfish landings data from any foreign 
fisheries. The populations of sea turtles in question are not 
globalized resources. The take of an Atlantic leatherback turtle does 
not have the same effect on the Western Pacific population of 
leatherback turtles as the take of a Western Pacific leatherback 
turtle. Therefore, the assumption that sea turtle bycatch has the same 
biological effect regardless of where it occurs is markedly incorrect 
at a fundamental biological level. In other words, it does matter where 
the sea turtles are caught; therefore, they cannot be considered 
``globalized resources.'' Further, Chan and Pan (2012) summarize their 
argument in terms of total number of turtles, even though there are at 
least four different species representing dozens of different 
populations. Also, there is no evidence that if the U.S. swordfish 
supply did in fact saturate the market, that foreign fleets would not 
simply sell to other markets where there is a demand for swordfish, 
casting considerable doubt on the market transfer effect. If NMFS has 
determined that U.S. demand for swordfish is causing harm to sea turtle 
populations globally, it has the responsibility to engage in consumer 
awareness campaigns aimed at reducing domestic swordfish demand.
    Response: In the 2012 BiOp, NMFS identified and analyzed the 
spillover effect as a potential indirect effect of the proposed action. 
Because data on foreign fisheries are incomplete, NMFS' estimates of 
foreign fishery interaction rates may be imprecise, and the expected 
number of sea turtle interactions with foreign fisheries that would be 
avoided by this action cannot be confirmed by direct observation. Thus, 
the precision of analyzing spillover effects is not the same as for the 
domestic fishery with 100 percent observer coverage. For those reasons, 
NMFS did not include numerical determinations of sea turtle mortalities 
that will be avoided because of the spillover effect in our 
quantitative PVA models.
    NMFS focused the analysis on whether sea turtle populations benefit 
when U.S. swordfish production displaces the fishing activities of 
foreign fleets that are known to have higher turtle interaction rates 
in the same general area. Chan and Pan (2012) projected a global 
beneficial effect for sea turtles to occur when the fishery fished at 
the effort level of 5,500 sets with a projected production of 5,461 mt 
of swordfish, and where there is a one-to-one displacement for the 
increased swordfish production, which is proportionally deducted from 
foreign

[[Page 60647]]

fleets. Under these circumstances, Chan and Pan (2012) determined that 
an increase in swordfish production by the fishery from 1,761 mt to 
5,461 mt would replace 3,700 mt of foreign swordfish production, which 
would result in a decrease in turtle interactions by 12 percent, or 221 
individual turtles of all species combined.
    Because leatherbacks represent about 40.2 percent of the turtles 
caught in the shallow-set fishery in the action area in the North 
Pacific, NMFS estimated that, in the Pacific Ocean, there would be 89 
(221 x 40.2 percent) fewer leatherback interactions with longline gear 
from international fisheries at this level of increase in U.S. 
swordfish production. Similarly, because North Pacific loggerheads 
represent about 52.8 percent of the turtles caught by the shallow-set 
fishery, we estimated that there would be 117 (221 x 52.8 percent) 
fewer loggerhead interactions in longline gear from international 
fisheries at this level of increase in U.S. swordfish production.
    Chan and Pan (2012) discussed in detail the methodology for 
identifying the one-to-one displacement of U.S. swordfish production to 
non-U.S. production. NMFS was conservative in applying principles of 
economic analysis in the 2012 BiOp. For example, based on the fishery's 
potential effort level of 5,500 sets per year, and the expected one-to-
one displacement of foreign swordfish production, the proposed action 
would result in 20-29 fewer leatherback sea turtle mortalities annually 
from displaced foreign swordfish production to meet U.S. demand, or an 
overall decrease in leatherback mortalities of 14-23 individuals 
annually from foreign longline fisheries in the central and North 
Pacific. Similarly for loggerheads, after accounting for the direct 
effects of the proposed action and the indirect spillover effects, the 
2012 BiOp concluded that the proposed action would result in 22-47 
fewer loggerhead sea turtle mortalities annually or an annual reduction 
of 15-40 loggerhead mortalities from foreign longline fisheries in the 
central and North Pacific. However, because the mortality reduction 
data associated with the spillover effect are not as robust as those 
analyzed for direct effects, we did not ``offset'' the direct effects 
of the proposed action (6 leatherback and 7 loggerhead total 
mortalities) in our quantitative PVA models, such that the fishery 
would effectively be credited for mortalities avoided from foreign 
fisheries. Similarly, the 2012 BiOp reached a no-jeopardy conclusion 
with and without considering the beneficial effects of spillover, and 
formulated the ITS only on the expected adverse affects of the proposed 
action.
    With respect to consumer awareness campaigns, NMFS maintains 
FishWatch (www.fishwatch.gov), a web site that provides consumers with 
easy-to-understand science-based facts to help make smart, sustainable, 
and healthy seafood choices. See the response to Comment 33.
    Comment 35: NMFS should hold an independent review of the methods 
and findings in the 2012 BiOp.
    Response: NMFS' information quality procedures do not require 
external peer review of biological opinions. However, some of the 
references in the 2012 BiOp were peer-reviewed, e.g., the Chan and Pan 
(2012) spillover effects paper, the Van Houtan and Halley (2011) 
climate-forcing publication, and the Van Houtan (2011) PVA models 
paper. Further, the Center for Independent Experts also reviewed the 
Chan and Pan (2012) Technical Memorandum on spillover effects.
    Comment 36: The regulatory record establishes that, taken as a 
whole, the effects of the shallow-set fishery are beneficial to both 
leatherback and North Pacific loggerhead sea turtles.
    Response: In the 2012 BiOp, NMFS identified and analyzed the 
spillover effect as a potential indirect effect of the proposed action. 
NMFS believes that the proposed action will likely provide an overall 
benefit to sea turtle conservation by displacing the foreign effort of 
fisheries that follow less effective sea turtle mitigation measures. 
For further information regarding spillover effects, see the responses 
to Comments 33 and 34.
    Comment 37: NMFS should issue its final rule in a timely manner so 
that regulation of the shallow-set fishery may resume in a way that is 
consistent with applicable science and law.
    Response: NMFS agrees.
    Comment 38: The theory underlying all market transfer analysis is 
basically sound in that in a global economy a change in a commodity 
chain in one region will often have ripple effects across other 
regions. However, unless it can be shown that the swordfish that are 
not caught by Hawaiian swordfish producers are caught by others, 
leaving total global production unchanged, then the case for increased 
turtle bycatch does not exist. This type of analysis would require 
detailed swordfish stock analysis and DNA testing to determine how many 
swordfish not caught by Hawaii's fishermen are caught by others, and 
the extent to which they augment existing production and do not simply 
displace it. None of the studies to date (Rausser et al. (2008) and 
Chan and Pan (2012)) have met this bar.
    Further research should be conducted to truly determine the impacts 
of Hawaii's swordfish regulations on other non-U.S. swordfish 
fisheries. Until this is done, it would be prudent not to make the case 
that increased Hawaiian swordfish production actually decreases sea 
turtle mortality, as there is no robust evidence to support such a 
claim. If the government wants to increase allowable swordfish catch in 
Hawaii for economic reasons they should not use the (as of now) 
specious argument that this will actually improve the conditions for 
the global turtle population.
    Response: The study area in Chan and Pan (2012) on production 
displacement only considered the central and North Pacific. Peer-
reviewed stock assessments have defined the great majority of the 
swordfish in this area as North Pacific swordfish, or as western and 
central Pacific and eastern Pacific swordfish under the two-stock 
scenario as described in a 2010 assessment of North Pacific swordfish.
    Chan and Pan (2012) indicate that U.S. swordfish production 
displaces non-U.S. production in the central and North Pacific almost 
one-for-one. The coefficient of the equation (-1.04) implies that, on 
the margin, an increase of one unit of U.S. production causes a 
reduction of 1.04 units of non-U.S. production. For further information 
regarding spillover effects, see the responses to Comments 33 and 34.
    Comment 39: NMFS' new biological opinion requires only observer 
coverage at rates that have been determined to be statistically 
reliable for estimating protected species interaction rates onboard 
Hawaii-based shallow-set longline vessels. NMFS gives no further 
indication what that level might be. Without 100 percent observer 
coverage, NMFS must gather and analyze raw data from a subset of 
vessels, and come up with an estimate of take for the fishery as a 
whole. The combination of that uncertainty and reduced reporting by 
vessels without observers could easily translate into a significant 
increase in take that would not be immediately detected by NMFS.
    Response: This final rule does not affect NMFS' placement of an 
observer on every shallow-set trip. In 2011, the Hawaii longline 
observer program cost the taxpayers about $7.5 million, and the cost 
increases each year. NMFS must continually consider the cost of each of 
its scientific and management programs, including observers, while 
maintaining the programs' effectiveness. The Council has requested from 
NMFS an analysis of observer coverage levels

[[Page 60648]]

for the shallow-set fishery that would continue to provide reliable 
estimates of turtle interactions, as an alternative to the current 
program.
    Comment 40: NMFS has failed to establish critical habitat for North 
Pacific loggerheads as required under the ESA. As a result, increasing 
takes of this distinct population segment in the swordfish fishery must 
be delayed, if not abandoned, until critical habitat is designated and 
the harm to the habitat from Hawaii longline swordfish operations 
assessed and mitigated.
    Response: NMFS is not required to delay or abandon this final rule 
until a determination is made regarding critical habitat for North 
Pacific loggerhead sea turtles. In the joint USFWS-NMFS determination 
of nine distinct population segments of loggerhead sea turtles (76 FR 
58858, September 22, 2011), the agencies found that critical habitat 
was not determinable at this time, and invited interested parties to 
provide information related to the identification of critical habitat 
for the two loggerhead sea turtle DPSs occurring within the United 
States. Accordingly, critical habitat will be proposed and evaluated, 
as appropriate.
    Comment 41: NMFS must err on the side of conservation rather than 
swordfish expansion to ensure the survival and recovery of the 
endangered leatherback and North Pacific loggerhead sea turtles.
    Response: NMFS is required to comply with a number of laws in 
managing this fishery, including the Magnuson-Stevens Act and ESA. This 
rule is consistent with the 2012 BiOp and all applicable laws. It is 
necessary to allow the fishery the opportunity to achieve optimum yield 
on a swordfish stock that is healthy and underexploited, while still 
maintaining important conservation and management safeguards for sea 
turtles and other protected species.
    Comment 42: In light of radiation from Japan and mercury 
contamination, NMFS should ensure that the fish caught in the Hawaii 
shallow-set fishery are safe to eat before allowing increased takes of 
sea turtles in the swordfish fishery to increase supplies of swordfish. 
Given that the loggerhead sea turtles captured in the fishery originate 
from Japan, NMFS should analyze the potential exposure to radiation 
from the nuclear disaster, its impacts on the population, and 
mitigation of those impacts by reducing bycatch of sea turtle species 
in this fishery.
    Response: The U.S. Food and Drug Administration (FDA) and NMFS have 
high confidence in the safety of seafood products in the U.S. 
marketplace or exported U.S. seafood products.
    At this time, there is insufficient information available on the 
potential effects of radiation on the North Pacific loggerhead sea 
turtles to determine what, if any, threat may exist. See the following 
Web sites for information about mercury in swordfish: www.hawaii-seafood.org/seafood-safety, www.fishwatch.gov/eating_seafood, and 
www.fda.gov/Food/FoodSafety/Product-SpecificInformation/Seafood.
    Comment 43: Although demand for and consumption of swordfish in the 
U.S. from all sources, foreign and domestic, is declining, NMFS seems 
to be attempting to subsidize a shrinking fishery with its efforts in 
Hawaii, American Samoa, along the U.S. West Coast and elsewhere in the 
Pacific without a clear need.
    Response: NMFS is required to establish conservation and management 
measures that achieve, on a continuing basis, the optimum yield from 
each U.S. fishery. This includes North Pacific swordfish, a stock that 
is healthy, and producing yields below MSY.
    Comment 44: NMFS should complete a new biological opinion and 
supplemental environmental impact statement that accurately assess the 
impacts of the fishery in the context of the serious threats and 
population declines facing leatherback and North Pacific loggerhead sea 
turtles.
    Response: The comment does not provide any specific objection 
regarding NMFS' compliance with NEPA in preparing a Record of 
Environmental Consideration, such that it would allow NMFS to give 
meaningful consideration to the objection. Moreover, the 2012 BiOp 
presented and assessed the best available scientific and commercial 
information. Further, this final rule is within the range of actions 
analyzed in the prior environmental analyses, and there is no new 
information that would affect the decision on the environmental impacts 
of this action and analyses available. See the response to Comment 1 
regarding compliance with ESA and the no-jeopardy conclusion in the 
2012 BiOp.

Changes From the Proposed Rule

    There are no changes to the proposed rule.

Classification

    The Administrator, Pacific Islands Region, NMFS, determined that 
this rule is necessary for the conservation and management of the 
Hawaii-based shallow-set pelagic longline fishery and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Chief Council for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS received no comments or 
new information regarding this certification. As a result, a regulatory 
flexibility analysis was not required and none was prepared.
    NMFS has determined that this action does not represent a 
substantial change to the action previously analyzed in the 2009 Final 
Supplemental Environmental Impact Statement on Amendment 18 to the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region, Modifications for the Hawaii-based Shallow-set Longline 
Swordfish Fishery (2009 FSEIS)(74 FR 65460, December 10, 2009, 
corrected at 75 FR 1023, January 8, 2010). NMFS has further determined 
that there are no significant new circumstances or information relevant 
to environmental concerns and bearing on the implementation of revised 
incidental interaction limits. A supplement to the 2009 FSEIS is, 
therefore, not required under NEPA.
    This action does not conflict with the provisions implemented to 
protect migratory birds. On August 24, 2012, the USFWS issued a 3-year 
Special Purpose Permit that authorizes the shallow-set fishery to take, 
possess, transport, and import 191 black-footed albatrosses, 430 Laysan 
albatrosses, 30 northern fulmars, 30 sooty shearwaters, and one short-
tailed albatross. If the fishery exceeds any of these take numbers, 
NMFS and the USFWS would consult, and may take appropriate action. The 
permit requires NMFS to report all seabird hookings and entanglements 
to the USFWS each year, and to continue to develop ways to reduce 
seabird interactions.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, Fisheries, Fishing, Hawaii, 
Longline, Sea turtles.


[[Page 60649]]


    Dated: October 1, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR Part 665 is amended 
as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
1. The authority citation for 50 CFR Part 665 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.


0
2. In Sec.  665.802, revise paragraphs (ss) and (tt) to read as 
follows:

Sec.  665.802  Prohibitions.

* * * * *
    (ss) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit after the shallow-set 
longline fishery has been closed pursuant to Sec.  665.813(b), in 
violation of Sec.  665.813(i).
    (tt) Fail to immediately retrieve longline fishing gear upon 
receipt of actual notice that the shallow-set longline fishery has been 
closed pursuant to Sec.  665.813(b), in violation of Sec.  665.813(i).
* * * * *

0
3. In Sec.  665.813, revise paragraphs (b)(1) and (b)(2), and paragraph 
(i) to read as follows:


Sec.  665.813  Western Pacific longline fishing restrictions.

* * * * *
    (b) * * *
    (1) Maximum annual limits are established on the number of physical 
interactions that occur each calendar year between leatherback and 
North Pacific loggerhead sea turtles and vessels registered for use 
under Hawaii longline limited access permits while shallow-set fishing. 
The annual limit for leatherback sea turtles (Dermochelys coriacea) is 
26, and the annual limit for North Pacific loggerhead sea turtles 
(Caretta caretta) is 34.
    (2) Upon determination by the Regional Administrator that, based on 
data from NMFS observers, the fishery has reached either of the two sea 
turtle interaction limits during a given calendar year:
    (i) As soon as practicable, the Regional Administrator will file 
for publication at the Office of the Federal Register a notification 
that the fishery reached a sea turtle interaction limit. The 
notification will include an advisement that the shallow-set longline 
fishery shall be closed, and that shallow-set longline fishing north of 
the Equator by vessels registered for use under Hawaii longline limited 
access permits will be prohibited beginning at a specified date until 
the end of the calendar year in which the sea turtle interaction limit 
was reached. Coincidental with the filing of the notification, the 
Regional Administrator will also provide actual notice that the 
shallow-set longline fishery shall be closed, and that shallow-set 
longline fishing north of the Equator by vessels registered for use 
under Hawaii longline limited access permits will be prohibited 
beginning at a specified date, to all holders of Hawaii longline 
limited access permits via telephone, satellite telephone, radio, 
electronic mail, facsimile transmission, or post.
    (ii) Beginning on the fishery closure date indicated by the 
Regional Administrator in the notification provided to vessel operators 
and permit holders and published in the Federal Register under 
paragraph (b)(2)(i) of this section, until the end of the calendar year 
in which the sea turtle interaction limit was reached, the Hawaii-based 
shallow-set longline fishery shall be closed.
* * * * *
    (i) Vessels registered for use under Hawaii longline limited access 
permits may not be used to engage in shallow-setting north of the 
Equator (0[deg] lat.) any time during which the shallow-set longline 
fishery is closed pursuant to paragraph (b)(2)(ii) of this section.
* * * * *
[FR Doc. 2012-24536 Filed 10-3-12; 8:45 am]
BILLING CODE 3510-22-P