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


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 300 and 665

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


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

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

ACTION: Final rule.

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

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

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

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

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

[[Page 65461]]

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

Comments and Responses

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

[[Page 65462]]

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

[[Page 65463]]

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

[[Page 65464]]

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

[[Page 65465]]

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

[[Page 65466]]

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

[[Page 65467]]

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

[[Page 65468]]

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

[[Page 65469]]

deficiencies in the management of this fishery, obtaining better data 
on the target and non-target species affected by the fishery, and 
providing effective protection to threatened and endangered species so 
that they may recover to the point where ESA protection is no longer 
necessary.
    Response: NMFS is currently unaware of any legal deficiencies in 
the management of the shallow-set fishery that would require 
correction. NMFS is mandated to implement the ESA with the goal of 
recovering all applicable ESA-listed species to the point that 
protections under the ESA are no longer necessary. In addition, 100 
percent observer coverage of the shallow-set fishery will continue, as 
well as proven sea turtle and seabird mitigation measures, and will not 
be modified by the final rule.
    Comment 33: The level of effort that this rule change would allow 
has not been tested and asserts that it is unreasonable, bordering on 
reckless, to allow a fishery which has never reached the 2,120 effort 
limit to have an unlimited number of sets in an untested arena.
    Response: From 1994-99, the average shallow set effort of the 
Hawaii longline fleet was about 4,240 sets, with a high around 5,500. 
The shallow-set fishery was severely constrained in 2001 by emergency 
regulations due to interactions with sea turtles. The fishery re-opened 
in 2004 as a ``model'' fishery with a 2,120 annual set limit (half of 
the historical effort) to assess the effectiveness of sea turtle 
mitigation measures including large circle hooks and mackerel type 
bait.
    The 2008 BiOp considered whether removing the annual limit on 
fishing effort, thus, allowing an increase of the Hawaii shallow-set 
longline fishery (the final rule), would likely jeopardize the 
continued existence of any ESA-listed species. The 2008 BiOp analyzed 
the effects of the continued operation of the Hawaii shallow-set 
longline fishery based at an effort level of 5,550 sets annually, or 
over 4.6 million hooks which, the historical high effort from 1994-99. 
Analysis of data sufficiently concluded that the final rule, including 
the continuation of existing and proven sea turtle and seabird 
mitigation measures and 100 percent observer coverage, will not 
jeopardize the continued existence and recovery of any protected 
species populations or result in overfishing or overfished conditions 
of any target or non-target stocks.
    Comment 34: An increase in fishing effort should not be associated 
with an increase in the allowable sea turtle interaction limits, 
because if the management measures work, then it would not be 
necessary. It is contrary for NMFS to say that they have reduced 
bycatch, and in particular loggerhead sea turtle interactions by some 
90 percent, and then proposes to nearly triple the loggerhead turtle 
interaction cap. The proposal testifies to the opposite.
    Response: To test the effectiveness of the gear combination, 
fishing effort in the model Hawaii fishery was limited to 2,120 sets, 
roughly half of the 1994-99 annual average number of sets. As an 
additional safeguard, an annual limit was implemented on the number of 
unintended interactions with sea turtles that could occur in the 
shallow-set fishery. The limit was calculated by multiplying the number 
of sets, 2,120, by sea turtle interaction rates in the Atlantic 
experiments. The fishery would be closed for the remainder of the 
calendar year if either interaction limit was reached. Since reopening 
of the fishery in 2004, sea turtle interactions in the Hawaii shallow-
set longline fishery have been successfully reduced by a combined 89 
percent compared to 1994-2002, when the fishery was operating without 
sea turtle mitigation requirements and the reasonable and prudent 
measures of the 2004 BiOp. Interaction rates are significantly lower 
than in the past; however, no single mitigation or measure is 
completely effective. Interaction limits provide an additional level of 
confidence that fishery interactions do not exceed authorized levels 
under current sea turtle mitigation requirements and reasonable and 
prudent measures. The final rule follows a layered approach to ensure 
protection of sea turtles.
    The 2008 BiOp based the number of anticipated interactions upon the 
high end of potential fishing effort of 5,550 sets annually. Using sea 
turtle interaction rates obtained from 100 percent observer data 
onboard shallow-set vessels since 2004, 46 loggerheads and 19 
leatherbacks annual interactions were projected to occur at this 
fishing effort level. Due to data gaps and assumed poor nesting beach 
trends of leatherbacks in the non-Jamursba-Medi component of the 
Western Pacific population, the 2008 BiOp authorized number of annual 
leatherback interactions remained at 16 rather than the projected 19. 
The potential expansion of fishing effort corresponds with the increase 
in the annual number of expected loggerhead sea turtle interactions of 
46. The annual sea turtle interaction limits do not represent the upper 
limit of interactions that would avoid jeopardizing the continued 
existence of loggerhead and leatherback sea turtles, but instead are 
the annual number of sea turtle interactions anticipated to occur in 
the shallow-set fishery. The realized annual interactions may be lower 
than 46 and 16 per year.
    Consistent with applicable laws, the final rule intends to increase 
opportunities for the shallow-set fishery to sustainably harvest 
swordfish and other fish species, without jeopardizing the continued 
existence of sea turtles and other protected resources. The final rule 
will increase the current limit on incidental interactions that occur 
annually between loggerhead sea turtles and shallow-set longline 
fishing.
    Comment 35: Scientists are opposing developers to preserve La Playa 
Grande, a leatherback nesting site in Costa Rica. Adding the expansion 
of Hawaii shallow-set swordfish fishery and increasing the number of 
turtles that could be caught will finish off the Pacific leatherback.
    Response: The annual leatherback sea turtle interaction limit will 
not change as a result of the final rule. Leatherback turtles are found 
on the western and eastern coasts of the Pacific Ocean, with nesting 
aggregations in Mexico and Costa Rica (eastern Pacific), and Malaysia, 
Indonesia, Australia, Vanuatu, the Solomon Islands, Papua New Guinea, 
Thailand, and Fiji (western Pacific). La Playa Grande is an important 
nesting colony for the Eastern Pacific population of leatherback sea 
turtles. Based on genetic sampling from 18 leatherback interactions 
(from 1995-2007) with the Hawaii shallow-set longline fishery, all of 
the leatherback turtles that interacted with that fishery originated 
from western Pacific nesting beaches (none from La Playa Grande).
    Comment 36: What are the scientific facts and current data 
concerning the status of loggerhead turtles, and the impact that this 
rule change may have upon them? This should be made a part of a 
proposed rule change so that the public can make informed comments on 
the issue presented to them.
    Response: All relevant scientific data and information to the final 
rule are presented in Amendment 18 and the FSEIS, which were made 
available to the public as described in the ADDRESSES section of the 
proposed rule (74 FR 29158, June 19, 2009).
    Comment 37: Tourism is a major interest for the economic well-being 
of the State of Hawaii; allowing this activity only benefits a small 
minority.
    Response: The Hawaii longline fishery provides fish to U.S. and 
foreign seafood consumers, who will benefit from increased supplies of 
fish. This final rule is likely to have a wide beneficial effect to 
Hawaii's economy,

[[Page 65470]]

and could help increase the economic vitality and adaptive capacity of 
Hawaii's coastal community. It is projected in the rule that the 
revival of the fishery could result in the doubling of the amount of 
ex-vessel revenue, direct and indirect sales, personal and corporate 
income, and state and local taxes that are currently generated as a 
result of the Hawaii shallow-set fishery. In addition, the total number 
of jobs could more than double.
    Comment 38: Under the preferred alternative, the allowable 
incidental take of loggerhead turtles would increase from 17 
loggerheads to 49 loggerheads, and it would maintain the current limit 
of 16 leatherback sea turtles, a limit that has been exceeded by the 
fishery in the past.
    Response: The annual number of loggerhead sea turtles interactions 
under the final rule would be limited to 46, not 49. The annual limit 
on leatherback sea turtle interactions would continue to be limited to 
16. The leatherback limit has not been exceeded in the past. In fact, 
since the leatherback sea turtle interaction limit has been in place, 
there have been eight or fewer leatherback interactions per year. Also, 
under the 3-year ITS, if the number of interactions exceed the 
interaction limit in any given year, the fishery will close, and the 
annual interaction limit will be reduced by that amount the following 
year.
    Comment 39: Although the required use of circle hooks and changes 
in bait have reduced sea turtle interaction rates by 90 percent for 
loggerheads and 83 percent for leatherbacks, the Hawaii shallow-set 
longline fishery was closed in 2006 for exceeding take limits.
    Response: When the fishery was closed in 2006, the number of 
loggerhead sea turtles that interacted with the Hawaii shallow-set 
fishery was 17 and did not exceed the annual interaction limit. The 
fishery did not close as a result of reaching the interaction limit for 
leatherback sea turtles.
    Comment 40: Under the rule, the number of sets will be allowed to 
increase to historic levels of over 5,500 sets per year.
    Response: The final rule would remove the shallow-set fishery 
effort limit, and the fishery could potentially increase to historical 
levels. The 2008 BiOp defined and analyzed the effects of a continued 
operation of the Hawaii shallow-set longline fishery at an effort level 
of 5,550 sets annually. While exceeding 5,550 sets in one year would 
not necessarily close the shallow-set fishery, as noted in the Re-
initiation Notice section of the 2008 BiOp, re-initiation of formal 
consultation is required if the agency action is subsequently modified 
in a manner that may affect listed species or critical habitat to an 
extent in a way not considered in this opinion, e.g., if more than 
5,550 sets are made during one calendar year. NMFS will continue to 
monitor the fishery with 100 percent observer coverage, which provides 
comprehensive fishery information.
    Comment 41: It is premature to propose increasing the fishery until 
NMFS addresses whether Pacific loggerheads will be listed as a distinct 
population segment and uplisted from threatened to endangered under the 
ESA. This petition should be resolved before expansion is considered 
for the Hawaii shallow-set fishery.
    Response: On July 16, 2007, NMFS and USFWS received a petition 
requesting that loggerhead turtles in the North Pacific be reclassified 
as a distinct population segment (DPS) with endangered status and that 
critical habitat be designated. NMFS and USFWS committed to assess the 
loggerhead listing status on a global basis. In February 2008, NMFS and 
USFWS convened a biological review team (BRT). In August 2009, the BRT 
published a global Loggerhead Turtle Status Review, which concluded 
that the loggerhead species is composed of nine Distinct Population 
Segments (DPS), including a North Pacific DPS and a South Pacific DPS. 
The North Pacific loggerhead DPS is the only one affected by the 
action. The Status Review concluded that the North Pacific loggerhead 
DPS is at risk of extinction.
    Re-initiation of formal consultation under the ESA is required on 
this action if (1) the amount or extent of taking specified in the ITS 
in the 2008 BiOp is exceeded, (2) new information reveals effects of 
the agency action that may affect listed species or critical habitat in 
a manner or to an extent not considered in the 2008 BiOp, (3) the 
action is subsequently modified in a manner that may affect listed 
species or critical habitat to an extent in a way not considered in the 
2008 BiOp, or (4) a new species is listed or critical habitat 
designated that may be affected by the action. The 2009 loggerhead 
status review does not satisfy any of the requirements for re-
initiating consultation at this time. The 2009 status review does not 
raise new information that would change conclusions in the 2008 BiOp. 
In fact, the status review did not consider all the information 
analyzed in the 2008 BiOp, such as nesting beach abundance. These data 
suggest that abundance of the loggerhead nesting populations increased 
over 2007 information, and appear to be continuing to increase. NMFS 
intends to re-initiate consultation on the effects of all of the 
region's pelagic fisheries on loggerhead sea turtles, if and when there 
is a change in this species' status under the ESA.
    Comment 42: A 2000 report that estimates between 2,600-6,000 
loggerhead juveniles and adults were killed by longlining, although 
NMFS notes that because density may be greater in the action area, the 
estimates may be skewed upwards. This poorly-justified assumption 
resulted in the agency lowering this mortality estimate to less than 
1,000, minimizing the impact considered.
    Response: The comment refers to the environmental baseline section 
of the 2008 BiOp, summarizing the past and present human impacts within 
the action area of the final rule. Only two sources of information were 
available for the 2008 BiOp regarding the number of turtles killed by 
longlining in the Pacific. Lewison et al. (2004) estimated that 2,600 - 
6,000 loggerhead juveniles and adults were killed by pelagic longlining 
in 2000, and Beverly & Chapman (2007) estimated that the actual 
mortalities were 20 percent of the Lewison et al. (2004) estimates, or 
520 - 1,200, giving a range of 520 - 6,000 loggerhead juveniles and 
adults killed annually. The environmental baseline for the 2008 BiOp is 
limited to the action area, which is less than 10 percent of the area 
that is longline fished in the Pacific. Thus, based on area alone, the 
total number would be less than 10 percent of 520 - 6,000 loggerhead 
juveniles and adults killed annually (i.e., less than 52 - 600). 
However, since loggerheads may be denser in the action area than 
elsewhere in the Pacific, and longline fishing effort has increased 
since 2000, 10 percent of 520 - 6,000 (i.e., 50 - 600, when applying 
appropriate rounding) was considered to be the best estimate of the 
total number of loggerhead juveniles and adults killed annually by 
longlining within the action area.
    Comment 43: The Draft EIS and Final EIS both read in places as if 
the take of turtles is part of the activity being authorized, rather 
than an environmental impact of the fishing activity under 
consideration. This approach is completely inconsistent with the ESA 
and must be rejected, as it was during the 2004 rulemaking.
    Response: Establishment of annual sea turtle interaction limits are 
not part of the Federal action, which, among other measures, is the 
removal of the fishing effort limit currently in place. Annual sea 
turtle interaction limits were

[[Page 65471]]

established through the ITS contained in the 2008 BiOp.
    Comment 44: NMFS should not endorse a fishery management plan 
amendment that is predicated almost entirely on increasing authorized 
levels of bycatch resulting in injury and mortality to ESA-protected 
species.
    Response: The purpose of Amendment 18 is to provide increased 
opportunities for the shallow-set fishery to sustainably harvest 
swordfish, and other fish species, while continuing to avoid 
jeopardizing the continued existence and recovery of threatened and 
endangered sea turtles as well as other protected species. When a 
Federal agency's action ``may affect'' an ESA-listed species that 
agency is required to conduct ESA Section 7 consultation. NMFS 
conducted Section 7 consultation to ensure that removal of the effort 
(set) limit for this fishery, and any resulting increase in fishing 
effort, is not likely to jeopardize the continued existence of any 
endangered or threatened species, or result in the destruction or 
adverse modification of critical habitat of such species. The 2008 BiOp 
is the result of this consultation. Subsequently, NMFS approved the FMP 
amendment to allow the expansion of the swordfish fishery by removing 
the effort limit and set certificate program, and set an annual 
interaction limit that is predicated on increasing the loggerhead sea 
turtle interaction limits to a level of expected interactions that 
corresponds to the potential increase in fishing sets (5,500). The 2008 
BiOp analyzed the effects of continuing the shallow-set fishery at 
5,550 sets per year, not based on sea turtle interactions. Amendment 18 
and the FSEIS analyzed the effects of optimizing the yield of 
swordfish, and other fish species, while avoiding jeopardy to ESA-
listed species, and minimizing bycatch and associated bycatch 
mortality. See the response to Comment 60 for how the sea turtle 
interaction limits were calculated.
    The Magnuson-Stevens Act broadly gives the Council and NMFS the 
authority to undertake appropriate measures to control bycatch. 
``Bycatch'' is defined as ``fish which are harvested in a fishery, but 
which are not sold or kept for personal use.'' ``Fish'' in turn, is 
defined to mean ``finfish, mollusks, crustaceans, and all other forms 
of marine animal and plant life other than marine mammals and birds.'' 
Therefore, turtles are regarded as fish and are bycatch since they can 
neither be sold, nor kept for personal use. National Standard 9 
requires that the Council and NMFS minimize bycatch and bycatch 
mortality. Therefore, it is a permissible action under the Magnuson-
Stevens Act to establish an annual sea turtle (or any other species) 
interaction limit in a fishery. Limiting the impacts of the Hawaii-
based shallow-set longline fishery on loggerhead and leatherback sea 
turtles is the purpose of setting the interaction limits.
    Comment 45: Money should be invested into finding alternate ways to 
sustainably raise fish for human consumption.
    Response: NOAA is at the forefront in making the U.S.A. self-
sufficient in the production of seafood. The core of this initiative is 
strengthening our commercial and recreational marine fisheries 
supported by sustainable domestic marine aquaculture for finfish and 
shellfish. The President's 2010 budget request to Congress includes 
$6.1 million for NOAA's Aquaculture Program at NMFS, and $1.6 million 
for the National Marine Aquaculture Initiative at the NOAA Office of 
Oceanic and Atmospheric Research. This request includes a $2 million 
increase for the NOAA Aquaculture Program. The funding increase would 
support a wide range of commercial marine aquaculture and marine stock 
enhancement research, including developing various aquaculture feeds 
and exploring ways to reduce environmental impacts of commercial 
aquaculture. NOAA is developing a comprehensive national policy for 
marine aquaculture which includes the protection of ocean resources and 
marine ecosystems. Such a policy will enable greater investments for 
alternative ways to increase seafood supply for U.S. consumers.
    Comment 46: NMFS failed to account for the fishery's effect on 
recovery of the Pacific leatherbacks and North Pacific loggerheads, or 
its effects in the context of changing conditions by relying on the 
susceptibility to quasi-extinction analysis (SQE), the assumptions are 
too speculative to support the increase in authorized annual 
interactions from 17 to 46. As such, there is substantial uncertainty 
in deriving sea turtle population estimates, and major impacts on the 
results are possible with changes in any of the assumptions.
    Response: The effects of the action and the jeopardy analysis are 
two sequential components of the 2008 BiOp. The effects of the action 
refer only to the direct, indirect, interrelated, and interdependent 
effects of the action on the listed species that will be added to the 
environmental baseline. The jeopardy analysis considers the effects of 
the action within the context of the status of the listed species and 
the environmental baseline, along with the cumulative effects, to 
determine if the action is likely to reduce the survival and recovery 
of the listed species.
    The ``effects of the action'' component of the 2008 BiOp, which was 
peer-reviewed, uses the best available scientific information to 
estimate turtle mortality resulting from the action. These estimates 
are based on numerous assumptions, all of which are made very 
conservatively to produce an estimate that is very likely to be higher 
than the actual mortality from the action, and very unlikely to be 
lower than the actual mortality from the action. These estimates then 
provide the inputs for the susceptibility to quasi-extinction analysis 
(SQE) model, which is used to quantify the effect of the mortality on 
affected populations in terms of extinction risk. By very 
conservatively estimating the inputs into the SQE model, the output of 
the model very likely overestimates the impact of the action.
    The jeopardy analysis component of the 2008 BiOp relates the 
effects of the action to the status of the listed species, the 
environmental baseline, and the cumulative effects to determine the 
effect of the action on survival and recovery of affected species. 
Nesting of the North Pacific loggerhead population has increased 
several-fold in the last 10 years. Mortality from all longline fishing 
combined within the action area for the action is estimated at 50 - 600 
juvenile and adult loggerheads annually, and some additional but 
unquantifiable mortality is likely also occurring due to climate 
change, ship traffic, and marine debris within the action area (the 
environmental baseline). Increases in loggerhead mortality may occur 
due to future worsening climate change and increasing fishing, ship 
traffic, and marine debris within the action area (the cumulative 
effects). The action is expected to have a maximum mortality of 10 
juvenile and adult loggerheads annually. Within the context of the 
status of the species and the environmental baseline, and considered 
together with the cumulative effects, the action is not expected to 
reduce the likelihood of survival or recovery (no jeopardy) of the 
North Pacific loggerhead population.
    Comment 47: NMFS has failed to take action on designating critical 
habitat for Pacific leatherbacks.
    Response: Critical habitat was designated in 1998 for leatherback 
turtles in coastal waters adjacent to Sandy Point, St. Croix, U.S. 
Virgin Islands. In 2007, NMFS received a petition to revise the 
critical habitat designation. NMFS published a 90-day finding on the 
petition in December 2007, and continues to compile and

[[Page 65472]]

evaluate biological information upon which to base a response to the 
petition.
    Comment 48: The ESA Section 10(a) conservation plan should be re-
visited and the applicant should demonstrate that they will minimize 
impacts and show that this action will not reduce the survival and 
recovery of the turtles in the wild.
    Response: The final rule is a Federal action involving the 
commercial fisheries that fall under ESA Section 7. A Section 10(a) 
conservation plan is not applicable to the final rule. The 2008 BiOp 
analyzed the continued operation of the shallow-set fishery at 5,550 
sets annually and concluded there is no jeopardy to the continued 
existence for all ESA-listed species in the action area, including sea 
turtles.
    Comment 49: The action violates the MMPA, since the Hawaii pelagic 
longline fishery is known to injure and kill humpback and false killer 
whales, other marine mammals.
    Response: The shallow-set fishery interacts with marine mammals, 
incidental to fishing operations; however, this does not violate the 
MMPA. The Marine Mammal Authorization Program (MMAP) allows commercial 
fishermen to lawfully ``incidentally take'' marine mammals in a 
commercial fishery. Participation in the MMAP is part of the issuance 
of Hawaii longline limited access permits. Managers officially began 
considering the deep- and shallow-set components as distinct fisheries 
in 2008, with the 2009 List of Fisheries final rule (73 FR 73032, 
December 1, 2008), based on the deep-set regulatory definition. The 
shallow-set fishery is classified as a Category II fishery, defined as 
a fishery that has occasional serious interactions with marine mammals 
greater than 1 percent and less than 50 percent of the PBR level. The 
level of interactions with other non-strategic marine mammal stocks and 
the shallow-set longline fishery are not significant, or above known 
PBR levels.
    Humpback whales move through the action area to Hawaii only in the 
winter months, and there is a lack of a uniform occurrence of the 
species across spatial distribution of the longline fishery. The 
Hawaii-based longline fishery generally occurs at locations where 
humpback whales are uncommon. Thus, interactions between the Hawaii-
based longline fishery and humpback whales are rare and unpredictable 
events when viewed in relation to the amount of fishing effort that has 
occurred in the Hawaii-based longline fishery (0.00037 interactions per 
set). There has never been an observed mortality with this species due 
to the fishery, and since 2001, there have been only five observed 
interactions between humpback whales and the Hawaii-based longline 
fleet. Of the interactions that have occurred, most have been with 
deep-set longline gear. During this same time period, the Central North 
Pacific (CNP) stock of humpback whales has increased in size to 18,000 
individuals, and is growing at an annual rate of 4.9 to 6.8 percent, an 
increase of several hundred animals annually. There have been two 
observed interactions in the shallow-set longline fishery, in 2006 and 
2008. In each instance, efforts were taken to disentangle the whale, 
and all whales were either released or able to break free from the gear 
without noticeable impairment to the animals' ability to swim or feed. 
Based upon the rarity of interactions and the large and growing North 
Pacific humpback whale population, the BiOp concluded that the action 
will not jeopardize the North Pacific humpback population. NMFS 
continues to research techniques and gear modifications to mitigate 
interactions with marine mammals.
    Comment 50: NMFS should undertake the following activities prior to 
any proposed increases in fishing effort to obtain the necessary 
information on stock status: (1) conduct the research needed to clarify 
the stock structure of the marine mammal species that may be taken in 
the Hawaii shallow-set longline fishery, (2) complete the surveys 
needed to provide up-to-date, reliable estimates of stock abundance, 
and (3) revise the potential biological removal level of each stock. 
The Hawaii shallow-set longline fishery is a Category II fishery under 
the MMPA and interacts with bottlenose dolphins, Bryde's whales, 
humpback whales, Risso's dolphins, pygmy sperm whiles, and sperm 
whales. With the exception of central North Pacific humpback whales, 
the stock structure for these marine mammals is poorly known. In 
addition, the abundance of most of these stocks and their total 
fisheries-related mortality are also poorly known.
    Response: Although this comment does not directly pertain to the 
final rule, NMFS provides a brief response. The best available science, 
including 100 percent fishery observer coverage, was used to develop 
Amendment 18 and the 2008 Biological Opinion. Under the 1994 amendments 
to the MMPA, NMFS is required to publish SAR for all stocks of marine 
mammals within U.S. waters, to review new information every year for 
strategic stocks and every three years for non-strategic stocks, and to 
update the stock assessment reports when significant new information 
becomes available. The final rule will not affect the research needed 
for a SAR, including field surveys or revisions to the potential 
biological removal levels of each marine mammal stock. Comments 
regarding the stock structure research or abundance levels to the SAR 
should be submitted during the SAR comment period. Comprehensive 
shallow-set fishery observer coverage will continue to monitor any 
fishery interactions with marine mammals. The final rule is not likely 
to cause significantly adverse effects on marine mammal stocks.
    Comment 51: NMFS should fund suitable observer coverage for all 
western Pacific fisheries at levels needed to obtain reasonably 
accurate and precise estimates of marine mammal takes. The NMFS report 
``Revisions to Guidelines for Assessing Marine Mammal Stocks (GAMMS 
II)'' recommends a coefficient of variation of 0.30 to ensure adequate 
precision. Assessing the accuracy of abundance estimates will be more 
difficult, but at the least it will require studies of each stock's 
distribution and movements to plan suitable abundance surveys.
    Response: NMFS observers continue to monitor every shallow-set 
longline trip and collects scientific information on the causes and 
types of interactions that occur, so this comment is not directly 
applicable to the final rule. Any research for marine mammals and their 
stock's distribution and abundance would be more appropriately 
addressed in the SAR. However, NMFS considers every opportunity for 
research and data collection, especially with regard to appropriate 
levels of observer coverage. Any decisions to expand population 
assessments are ultimately subject to funding availability.
    Comment 52: NMFS should evaluate all observed and documented 
fisheries-related injuries to humpback whales to determine whether they 
were serious, and consider them as such in the absence of definitive 
information. At the current reduced level of fishing effort, observers 
have documented two interactions between the shallow-set fishery and 
humpback whales since 2004, one in 2006 and another in 2008. Both were 
recorded merely as injuries, with no indication as to whether they were 
or were not serious. Such information is important for characterizing 
the fate of the animals and making informed determinations regarding 
the total effect of fishery interactions on humpback whales. That is, 
incidental takes of humpback whales in this fishery would appear to 
have few population-level consequences, but must be combined with those 
from other fisheries to provide a comprehensive

[[Page 65473]]

understanding of fishery effects on these whales. Taking a conservative 
or precautionary approach in the face of incomplete data is essential 
to ensure that the whale populations involved are given adequate 
protection and in provide an incentive for collecting better 
information in the future.
    Response: This final rule has no impact on the determinations of 
humpback whale interactions with the Hawaii-based shallow-set longline 
fishery. Nonetheless, the current NMFS system for reviewing marine 
mammal injury records for the Central North Pacific stock of humpback 
whales is conducted through the Alaska Fisheries Science Center and the 
Alaska Scientific Review Group (SRG). The Alaska SRG is an advisory 
body which provides injury determination recommendations to NMFS. NMFS 
then makes the final determination whether the injury is considered 
serious or not serious.
    Comment 53: NMFS should convene a TRT to address false killer whale 
bycatch in the Hawaii deep-set longline fishery in the Pacific Islands 
area, but also include the Hawaii shallow-set longline fishery and the 
stocks taken in that fishery under the purview of the team. The Hawaii 
shallow-set longline fishery takes individuals from a number of other 
stocks (e.g., Risso's dolphins, bottlenose dolphins, and central North 
Pacific humpback whale), which is one indicator of the need for take 
reduction efforts.
    Response: This comment addresses false killer whale bycatch in the 
Hawaii-based longline fisheries, and this final rule does not include 
any provisions, authorizations, or mandates for a TRT. When applicable, 
Section 118(f)(1) of the MMPA requires NMFS to ``develop and implement 
a Take Reduction Plan designed to assist in the recovery or prevent the 
depletion of each strategic stock which interacts with a fishery listed 
under subsection (c)(1)(A)(i) or (ii).'' The definition of ``strategic 
stock'' includes marine mammal stocks for which the level of direct 
human-caused mortality exceeds the PBR. The Hawaii pelagic stock of 
false killer whales is the only known strategic stock from the Pacific 
Islands Region that interacts with the Hawaii-based deep-set longline 
fishery, which is not the subject of this final rule. In April 2009, 
NMFS began the process to develop a Take Reduction Plan (TRP) and 
assemble a TRT. Once a TRT is officially designated, the MMPA requires 
a draft TRP to be completed within six months. The scope of the TRP has 
not yet been established.
    Comment 54: A well-run TRT is the best mechanism to bring relevant 
stakeholders together to discuss and evaluate marine mammal bycatch in 
commercial fisheries.
    Response: See response to Comment 53. When applicable, MMPA Section 
118(f)(6)(C) specifies the composition of a TRT, including members with 
expertise with the conservation of marine mammal species and fishing 
practices. NMFS will adhere to these mandates and create a TRT with an 
equitable balance among all stakeholders.
    Comment 55: NMFS has neither convened a TRT to address false killer 
whale injury and mortality pursuant to the MMPA, nor completed the 
steps necessary to properly authorize the take of humpback whales under 
the MMPA and ESA before increasing the fishery.
    Response: See responses to Comments 49 and 53 regarding false 
killer whales. The final rule does not include any provisions, 
authorizations or mandates for a TRT. Similarly, this final rule does 
not impact or authorize the take of humpback whales under the MMPA or 
the ESA. For further information regarding humpback whale impacts, see 
responses to Comments 16 and 49.
    Comment 56: The action would violate the Convention on 
International Trade in Endangered Species (CITES).
    Response: CITES is an international treaty designed to control and 
regulate international trade in certain animal and plant species that 
are now or potentially may be threatened with extinction. This rule 
does not permit trade in any CITES-listed species, so does not violate 
the treaty.
    Comment 57: The expansion of the Hawaii-based longline fishery 
would violate the Migratory Bird Treaty Act (MBTA), and further take of 
seabird species is not scientifically supportable.
    Response: The MBTA applies only within the United States and 
nearshore waters, i.e., from the shoreline seaward to three nautical 
miles offshore (70 FR 75075, December 19, 2005). The Hawaii-based 
pelagic longline fleet is prohibited from operating in those waters 
covered by the MBTA. In addition, the MBTA contains no provision for 
the incidental take of migratory birds during commercial fishing 
activities, and the U.S. Fish and Wildlife Service (USFWS) does not 
issue permits under the MBTA for incidental takes of migratory birds 
during otherwise lawful activities. NMFS does not believe that the MBTA 
was intended to disallow otherwise lawful activity merely because it 
has the potential to interact with migratory birds. In the absence of a 
permitting process to address potential conflicts between commercial 
fishing activities and migratory birds, NMFS will continue to promote 
mitigation strategies and best management practices, including 
workshops and the use of side-setting, to reduce and eliminate 
potential interactions with migratory birds. For more information see 
Section 6.7 of the FSEIS.
    Comment 58: NMFS has not analyzed seabird interaction reduction 
measures, as suggested by the Department of the Interior, and the 
proposed regulations do not seek to minimize seabird bycatch by 
requiring the use of proven techniques like side-setting.
    Response: All existing seabird deterrent and mitigation measures 
remain in effect and are not affected by this final rule. After 
completing the public review and comment processes afforded by the 
Magnuson-Stevens Act and NEPA, and after consulting with USFWS 
regarding the potential for incidental take of short-tailed albatross, 
the Council and NMFS have developed and implemented specific seabird 
conservation measures. Existing seabird measures have dramatically 
reduced the incidental take of seabirds in the shallow-set fishery to 
levels that are not expected to have significant adverse short- or 
long-term, or cumulative effects on albatrosses. Shallow-set vessels 
are required to set their gear at night, use thawed and blue-dyed bait, 
and other proven seabird interaction mitigation measures, if they 
choose not to employ side-setting. Shallow-set vessels have reduced the 
number of interactions with albatrosses, the primary component of 
seabird bycatch, by 96 percent. Also see response to Comment 26 for 
continuing seabird protections.
    In September 2008, NMFS conducted an informal consultation with the 
USFWS on the effects of an increased shallow-set longline fishery to 
short-tailed albatross. USFWS concurred with NMFS that this action 
would not likely adversely affect the short-tailed albatross during the 
first year of the fishery's operation under this final rule. NMFS is 
working with USFWS on a BiOp on the continuation of both pelagic 
longline fisheries and its effects on ESA-listed seabirds and expects 
completion in the near future.
    Comment 59: The action increases the ITS to allow more sea turtle 
interactions regardless of whether an increase in effort actually 
materializes.
    Response: Amendment 18 analyzed the effects of optimizing the yield 
of swordfish and other fish species, while avoiding jeopardy and 
minimizing bycatch. By removing the effort set limit and set 
certificate program, which currently constrains the fishery and creates 
an administrative burden, NMFS

[[Page 65474]]

expects that the final rule will allow the fishery to increase to 
historical levels, allowing optimal harvest of the North Pacific 
swordfish stock and other fish species.
    The 2008 BiOp analyzed the effects of continuing the shallow-set 
fishery at 5,550 sets per year, not based on sea turtle interactions. 
The ITS was calculated based on predicted interaction rates from 
observer data obtained since 2004. An incidental take is defined as a 
take that results from, but is not the purpose of, conducting an 
otherwise lawful activity (50 CFR 402.02). Although the annual sea 
turtle interaction limits are 46 and 16, of which the predicted 
mortalities (based on 100 percent observer data) could be 3 adult 
female loggerhead and 2 adult female leatherback sea turtles, these 
effects are indistinguishable from natural mortality.
    Comment 60: It is not clear how the 2004 BiOp estimate of 16 
leatherback takes per year with an effort cap of 2,120 sets could be 
essentially the same level of leatherback takes as the 2008 BiOp 
without an effort cap.
    Response: The current annual sea turtle interaction limits set by 
the 2004 BiOp were not based on interaction rates in Hawaii. The limit 
was calculated by multiplying the number of sets, 2,120, by sea turtle 
interaction rates derived from Atlantic experiments using circle hooks 
and mackerel bait in U.S. longline fisheries, to determine the annual 
number of sea turtle interactions anticipated to occur in the Hawaii-
based shallow-set fishery. The fishery would be closed for the 
remainder of the calendar year if either interaction limit was reached. 
The current interaction limits for loggerhead and leatherback sea 
turtles (2004 BiOp) do not represent the upper limit of interactions 
that would avoid jeopardizing the continued existence of sea turtles.
    The 2008 BiOp analyzed the effects of 5,550 longline sets in the 
action area. Using interaction rates obtained from 100 percent observer 
data since 2004 in the Hawaii-based shallow-set fishery, the BiOp 
estimated the number of interactions that would occur and came up with 
46 loggerheads and 19 leatherbacks. However, due to concerns about 
leatherback population conditions and uncertainty about numbers of 
nesting females at various locations in the western Pacific, the 2008 
BiOp conservatively recommended restricting the annual leatherback 
interactions to the current level of 16, which is reflected in the 
final rule.
    Comment 61: The NMFS approach to its jeopardy analysis improperly 
compared the effects of a proposed action to the baseline condition for 
the species and the commenter cited National Wildlife Federation v. 
NMFS, (NWF v. NMFS, 481 F.3d 1224, 9th Cir. 2007) where ``baseline 
conditions already jeopardize a species, an agency may not take action 
that deepens the jeopardy by causing additional harm'' and ``that the 
agency must consider not only the likelihood of extinction in its 
jeopardy analysis, but also prospects for recovery.''
    Response: There are no current or proposed Federal actions that 
jeopardize ESA-listed species within the action area, so the court 
ruling for NWF v. NMFS is not applicable to this action. The 
environmental baseline for a biological opinion includes the past and 
present impacts of all state, Federal, or private actions and other 
human activities in the action area. The anticipated impacts of all 
proposed Federal projects in the action area that have already 
undergone section 7 consultation, and the impact of State or private 
actions which are contemporaneous with the consultation in process are 
also included (50 CFR 402.02). The ESA Consultation Handbook further 
clarifies that the environmental baseline is ``an analysis of the 
effects of past and ongoing human and natural factors leading to the 
current status of the species, its habitat (including designated 
critical habitat), and ecosystem, within the action area.'' The purpose 
of describing the environmental baseline in this manner in a biological 
opinion is to provide the context for the effects of the proposed 
action on the listed species. The past and present impacts of human and 
natural factors leading to the status of the six species addressed by 
the 2008 BiOp within the action area include fishing interactions, 
vessel strikes, climate change, pollution, marine debris, and 
entanglement.
    In some cases, such as when an ESA-listed species consists of a 
single, small, declining population, and environmental baseline 
conditions are continuing to deteriorate, any additional harm could 
constitute jeopardy. For example, due to concerns about the likely 
decline of the Western Pacific leatherback population, and due to the 
uncertainty of information about leatherback populations, the annual 
interaction limit for leatherback sea turtles was retained at the 
current level of 16. Such is not the case with the North Pacific 
loggerhead population. Some 10,847 loggerhead nests were counted in 
Japan in 2008, more than any year since comprehensive records were 
started in 1990, and up from 2,000 nests in 1999. The 2008 nests 
represent several thousand adult females. Not all adult females nest 
every year, and loggerheads mature at approximately 30 years of age; 
thus, the total North Pacific loggerhead population is neither small 
nor declining. In addition, as described in the 2008 BiOp, numerous 
conservation efforts are being implemented throughout the range of the 
population to attempt to reduce mortality during all life stages. The 
potential mortality of a maximum of 10 loggerhead male and female 
adults and juveniles annually will not appreciably reduce the 
likelihood of survival and recovery of the North Pacific loggerhead 
population.
    Comment 62: The Hawaii shallow-set fishery is the most rigorously 
and successfully regulated commercial fishery in the world.
    Response: NMFS agrees that the Hawaii-based shallow-set fishery is 
well-managed to sustainably harvest swordfish with conservative 
measures and regulations to reduce impacts to sea turtles, seabirds, 
and other marine wildlife. In light of the severe contraction of 
domestic economic activity, the fishery should be allowed to operate 
under the optimal yield mandate of the Magnuson-Stevens Act. This final 
rule is consistent with that mandate.
    Comment 63: Amendment 18 is based on sound data and science, 
scrutinized and accepted as the best available data and information.
    Response: NMFS agrees that Amendment 18 and its implementing 
regulations are based on the best scientific information available. 
Amendment 18 adheres to published standards for preparing a final rule 
to an FMP or amendment. NMFS must comply with the requirements of the 
Magnuson-Stevens Act, National Environmental Policy Act, Administrative 
Procedure Act, Paperwork Reduction Act, Coastal Zone Management Act, 
ESA, MMPA, and Executive Orders 13132 (Federalism) and 12866 
(Regulatory Planning). NMFS has determined that Amendment 18 is 
consistent with the National Standards of the Magnuson-Stevens Act, and 
all other applicable laws.
    National Standard 2 of the Magnuson-Stevens Act requires 
conservation and management measures to be based upon the best 
scientific information available. In accordance with this national 
standard, the information product incorporates the best biological, 
social, and economic information available to date, including the most 
recent biological information on, and assessment of, the pelagic 
fishery resources and protected resources, and

[[Page 65475]]

the most recent information available on fishing communities, including 
their dependence on pelagic longline fisheries, and up-to-date economic 
information (landings, revenues, etc.).
    Amendment 18 was prepared by the Council and NMFS based on 
information provided by NMFS Pacific Islands Fisheries Science Center 
(PIFSC) and NMFS PIRO. The information product was reviewed by PIRO and 
PIFSC staff, and NMFS Headquarters.
    Comment 64: The fish species and stocks targeted by the shallow-set 
fishery are abundant and healthy at levels that can sustainably support 
the projected growth in the shallow-set fishery under Amendment 18.
    Response: NMFS agrees. As noted in the 2008 stock status report to 
Congress and current stock assessments, no species caught by the 
shallow-set fishery is overfished or approaching an overfished 
condition. The North Pacific swordfish stock is currently fished at 
about 65 percent of the MSY, with the Hawaii-based shallow-set longline 
fishery harvesting 6 - 12 percent since the fishery was reopened in 
2004, allowing for increased harvest.
    Comment 65: Restrictions in the shallow-set longline fishery 
results in more sea turtle interactions, not less. See Rausser, G., M. 
Kovach, and R. Sifter. 2008. Unintended Consequences: The spillover 
effects of common property regulations. Marine Policy 33(1), January 
2009, pp. 24-39.
    Response: ``Market transfer effects'' generally refer to the 
transfer of catch from one region to other regions as a result of a 
regulation; the referenced paper examines a particular case of the 
market transfer effect of endangered sea turtle bycatch resulting from 
the 2001-04 closure of the Hawaiian longline swordfish fishery. There 
are two steps to the analysis. First, a model of swordfish demand and 
supply is estimated by a system of simultaneous equations to identify 
the magnitude of the market transfer effect of swordfish catch from 
U.S. fishery to non-U.S. fishery. Then, an analysis measures the 
effects of the swordfish market transfer on sea turtles. The analysis 
found that the closure of the Hawaiian longline swordfish fishery 
during 2001-04, which was motivated by the protection of endangered sea 
turtles, resulted in an estimated transfer of 1,602 mt of swordfish 
catch to non-U.S. fisheries, leading to an estimated additional 2,882 
sea turtle interactions.
    Comment 66: Amendment 18's preferred alternatives of lifting the 
annual shallow-set effort limit and eliminating the set certificate 
program will allow the shallow-set fishery to return to historical 
levels of fishing, which has the potential to reduce pressure on 
Pacific bigeye and yellowfin tuna stocks by promoting a shift in 
fishing effort to swordfish-targeted shallow-set longlining.
    Response: NMFS expects that removal of the set certificate program 
will allow vessels to shift effort from targeting tuna in the deep-set 
fishery to targeting swordfish in the shallow-set fishery. Effort in 
the shallow-set fishery may gradually increase to historical levels. 
Some 10-30 vessels are projected to eventually join the existing 30 
vessels in the fishery. The maximum number of Hawaii longline limited 
entry permits is 164 for the deep- and shallow-set fisheries, combined.
    Comment 67: Increased shallow-set fishing effort under Amendment 18 
will not have an appreciable adverse impact on affected Pacific 
populations of sea turtle species.
    Response: NMFS agrees that the affected populations of Pacific sea 
turtles will not be jeopardized under this action. The 2008 BiOp 
analyzed the effects of the continued operation of the Hawaii-based 
shallow-set longline fishery based at an effort level of 5,550 sets 
annually, or over 4.6 million hooks. The opinion concluded that the 
action is not likely to jeopardize the continued existence of any ESA-
listed species. Although the annual sea turtle interaction limits are 
46 and 16, for loggerhead and leatherback turtles, respectively, the 
predicted mortalities (based on 100 percent observer data) at the 
interaction limits would be three adult female loggerhead and two adult 
female leatherback sea turtles, the effects of which would be 
indistinguishable from natural mortality. Further, the ITS is 
conservative and the fishery will continue to be monitored by 100 
percent observer coverage.
    Comment 68: Pacific loggerhead and leatherback nesting beach 
conservation measures were undertaken and continue as a result of the 
Hawaii-based commercial longline fisheries.
    Response: NMFS continues to support conservation and recovery of 
ESA-listed species. See response to Comment 1 with respect to NMFS 
responsibilities to conserve and protect living marine resources and 
the survival and recovery of ESA-listed species.
    The Council and NMFS have been supporting sea turtle conservation 
projects at key loggerhead and leatherback nesting beaches from which 
individuals interacting in the Hawaii-based longline fisheries 
originate. Preliminary results from an analysis conducted by PIFSC 
(Kobayashi, NMFS, unpublished data) suggest that approximately 3 to 75 
additional loggerhead hatchlings would equal 1 loggerhead juvenile 
taken in the fishery, and that approximately 55-550 additional 
leatherback hatchlings would equal 1 leatherback juvenile taken in the 
fishery. The model used to estimate the number of hatchlings required 
to offset fishery impacts takes into consideration simultaneous impacts 
from other sources (such as harvest and other fisheries), and thus 
provides a realistic estimate of the current state of sea turtle 
populations. If the allowed maximum number of interactions were to 
occur in the shallow-set fishery final rule, the model projects that 
138 to 3,450 loggerhead hatchlings and 935 to 9,350 leatherback 
hatchlings would be needed to offset the impacts of fishery 
interactions. The Council-supported nesting beach projects could offset 
the impacts.
    All North Pacific loggerhead turtles are known to originate from 
nesting beaches in Japan. The Council has supported nesting beach 
monitoring and conservation activities at four locations in Japan since 
2003. One of the important activities undertaken is the relocation of 
nests from erosion-prone and inundation areas to improve hatchling 
production. In 2008 alone, the Council project relocated 80,955 
loggerhead eggs, with an estimated 48,573 loggerhead hatchlings 
produced from those relocated nests. These numbers exceed the estimated 
138 to 3,450 loggerhead hatchlings needed to offset impacts from the 
Hawaii longline fishery.
    The Council also supports two nesting beach projects to protect 
Western Pacific leatherback turtles in Wermon Beach, Indonesia, and 
Huon Coast, Papua New Guinea. Both project areas had very low hatchling 
production prior to project inception due to egg harvests, nest 
predation, and inundation. The use of monitoring staff on nesting 
beaches to prevent egg harvest from occurring and deployment of simple 
bamboo grids over nests to prevent dog, pig, and lizard depredation of 
eggs have been effective in increasing hatchling production in these 
areas. Based on the most recent nesting data available, the Wermon 
Beach project produces approximately 40,000 leatherback hatchlings, and 
the Huon Coast project produces approximately 12,000 leatherback 
hatchlings each year, most of which would not survive without the 
conservation project in place. The over 50,000 leatherback hatchlings 
produced annually in Council projects exceed the estimated 935 to 9,350 
hatchlings needed to offset impacts from the Hawaii longline fishery.

[[Page 65476]]

    Comment 69: With increased shallow-set effort, more non-target 
species, such as sharks, will be caught in the fishery.
    Response: Blue sharks are the most often-caught sharks in the 
shallow-set longline fishery. Approximately 94 percent of those caught 
are returned alive to the sea and are believed to survive. Fish bycatch 
in the Hawaii shallow-set longline fishery is estimated to be limited 
to 6-7 percent of the annual catch. Since no other significant changes 
are occurring in the fishery, it is unlikely that removing the annual 
set limit would increase the annual percentage of any bycatch species. 
As described in Amendment 18, other bycatch species are caught in 
insignificant numbers in relation to their maximum sustainable yields, 
and most of these species are kept, or returned to sea alive. In 
addition, based on a 2009 stock assessment, blue sharks in the Pacific 
are not overfished or subject to overfishing.
    Comment 70: In light of the many stressors facing leatherbacks in 
the western and central Pacific, Amendment 18 should reduce the annual 
interaction limit rather than maintain the current level.
    Response: The purpose of Amendment 18 and its implementing 
regulations is to optimize the yield of the North Pacific swordfish 
stock and supply a sustainable source of domestic seafood. To do this, 
the fishery impacts were analyzed for an appropriate number of 
interactions that will not jeopardize the continued existence of ESA 
listed species. While the 2008 BiOp determined that incidentally taking 
19 leatherback turtles annually will not jeopardize the continued 
existence of this species, NMFS took a precautionary approach in 
regards to acknowledged declines of monitored portions of the Western 
Pacific leatherback population. Therefore, the 2008 BiOp authorized the 
interaction limit equal to the current limit of 16 leatherbacks. See 
also the responses to Comments 67 and 68.
    Comment 71: NMFS should retain the existing leatherback and 
loggerhead sea turtles regulations, because they are critical to the 
species viability.
    Response: All measures currently applicable to the fishery will 
remain in place, including limited access. The Hawaii longline fishery 
is limited to 164 permits. In any given year about 120-130 vessels are 
actively fishing, with about 30 of those in the shallow-set fishery. 
The limit on the number of vessels remains unchanged with the removal 
of the effort limitations. Other requirements that remain in place 
include vessel and gear marking requirements, vessel length 
restrictions, Federal catch and effort logbooks, large longline 
restricted areas around Hawaii, vessel monitoring system (VMS), annual 
protected species workshops, and the use of sea turtle, seabird, and 
marine mammal handling and mitigation gear and techniques. NMFS will 
also maintain 100-percent observer coverage.
    Under this final rule, the interaction limit for leatherback 
turtles remains unchanged at 16. The Hawaii shallow-set longline 
fishery will be allowed to interact with (hook or entangle) no more 
than 46 loggerhead sea turtles, an increase from the current limit of 
17. The interaction limit does not represent the upper limit of 
interactions that would avoid jeopardizing the continued existence of 
loggerhead sea turtles, but instead is the annual number of 
interactions anticipated to occur in the fishery.
    Comment 72: Time-area closures and closures in areas with higher-
risk temperature bands should be considered to reduce sea turtle 
bycatch.
    Response: Implementation of time-area closures was thoroughly 
discussed and analyzed as a way to reduce the number of sea turtle 
interactions that may occur in the first quarter of each year while 
increasing annual fishery harvests. The Council recommended not 
implementing time-area closures because it was unknown whether the 
displaced fishing effort would be relocated to other areas or to other 
months, and what impacts this displacement would have on turtles and 
other protected species, and on catch rates of target fish. Although 
the loggerhead hard cap was reached in the first quarter of 2006, the 
2008 data indicated that no loggerhead turtle interactions and one 
leatherback interaction occurred during the same time period. The 
difficulty in managing time-area closures based on largely transient 
ocean temperature bands, as well as the inherent uncertainty in 
predicting with reasonable confidence whether turtle interactions will 
occur at higher rates within these bands, make the benefits of time-
area closures speculative in relation to the impacts on fishery yields. 
Moreover, the implementation of time-area closures deprives the agency 
of observational data that are helpful to understanding sea turtle 
distribution and behavior. The use of proven turtle mitigation measures 
and hard caps contained in the preferred alternative will provide 
appropriate protection to sea turtles.
    Comment 73: The increase in fishing effort should be limited to 
relatively small increments to ensure that the fishery does not exceed 
the take of turtles and does not become overcapitalized.
    Response: In the FSEIS, Alternatives 1B -1D were thoroughly 
discussed and analyzed as increases of allowable sets per year (Alt 1B- 
Allow up to 3,000 sets per year; Alt - 1C Allow up to 4,240 sets per 
year; Alt 1D - Allow up to 5,500 sets per year; Alt - 1E Set effort to 
be commensurate with North Pacific swordfish stock at approximately 
9,925 sets per year). The final rule implements Alternative 1F, which 
will remove the set limit and allow optimum yield to be achieved from 
the shallow-set fishery. Fishing effort may increase gradually to 
historical levels.
    Because the Hawaii-based longline fisheries (shallow-set and deep-
set) are regulated under a limited entry program (maximum 164 permits 
combined), it is likely the fishery will not be overcapitalized in the 
future. The Hawaii shallow-set fishery has 100 percent observer 
coverage, so NMFS is able to monitor the precise number of individual 
turtles that interact with the fishery. If or when an annual 
interaction limit is reached, the shallow-set longline fishery will be 
closed north of the Equator beginning on a specified date until the end 
of the calendar year. Further, in the event that either annual 
interaction limit is exceeded, NMFS will lower the following year's 
interaction limit by the amount it was exceeded.
    Comment 74: The EPA's review recommended time-area closures and 
chastised the agency for not doing so as part of a preferred option in 
the DSEIS.
    Response: The EPA comment letter consisted of a recommendation to 
investigate time-area closures as a research component of the proposed 
action: ``EPA recommends the issue of time-area closures be explored as 
a research component of the proposed action, and that this possibility 
be discussed in the FSEIS.'' See Comment 72 for time-area closure 
response.
    Comment 75: Until estimates of stock status are more certain, the 
Scientific Committee (SC) of the WCPFC recommended no increase in 
fishing effort on swordfish.
    Response: The North Pacific stock of swordfish is healthy and 
currently fished below MSY. The final rule allows an increased 
sustainable harvest of swordfish, while minimizing bycatch, including 
protected species from reaching an overfished or jeopardy state. 
Perhaps of more relevance than the recommendations of the WCPFC's SC 
are the decisions of the WCPFC itself, some of which are binding on its 
members, including the United States. The WCPFC has not adopted any

[[Page 65477]]

conservation and management measures specifically for swordfish in the 
North Pacific. However, WCPFC Conservation and Management Measure 2008-
05, which focuses on and establishes measures for swordfish in the 
southwestern Pacific Ocean, is binding on WCPFC members and states that 
[WCPFC members] ``shall not shift their fishing effort for swordfish to 
the area north of 20[deg] N, as a result of this measure.'' The phrase 
``as a result of this measure'' refers to limits on the number of 
fishing vessels that are used to fish for swordfish and on swordfish 
catches in the WCPFC Convention Area south of 20[deg] S. In other 
words, it calls for WCPFC members to ensure that fishing effort for 
swordfish by their vessels in the WCPFC Convention Area south of 
20[deg] S. not shift to the area north of 20 N.
    In 2009, after adoption of WCPFC Conservation and Management 
Measure 2008-05, the International Scientific Committee for Tunas and 
Tuna-Like Species in the North Pacific Ocean (SSC), which provides 
scientific advice to the WCPFC for stocks in the North Pacific Ocean, 
completed a stock assessment for swordfish in the North Pacific Ocean. 
The SSC concluded that the North Pacific WCPO and EPO stocks of 
swordfish are healthy and well above the level required to sustain 
current catches.
    Comment 76: Expansion of Hawaii shallow-set fishery uses 
unsustainable fishing practices and should be scaled back to preserve 
and protect sea turtles.
    Response: NMFS and the Council are responsible for managing the 
living marine resources of the U.S.A. The best available scientific 
information indicates that this action (which continues proven sea 
turtle and seabird mitigation measures and 100 percent observer 
coverage) will not jeopardize the continued existence and recovery of 
any ESA-listed species, will not impact the conservation of marine 
mammal or seabird species, and will not result in overfishing or 
overfished conditions for any target or non-target stocks. Since the 
shallow-set longline fishery reopened in 2004, the fishery has reduced 
its bycatch of protected species from historical levels, and continues 
to be subject to a suite of bycatch mitigation measures and gear 
restrictions. All fish stocks will continue to be monitored according 
to their MSY, and the sea turtle interaction limits will help ensure 
that the survival and recovery of sea turtles will continue. This final 
rule allows the Hawaii shallow-set fishery to sustainably harvest the 
North Pacific swordfish stock, while minimizing bycatch and associated 
mortality. See also the response to Comment 70.
    Comment 77: Another way must be available to catch the swordfish, 
and only the swordfish.
    Response: Swordfish are managed under the Pelagics FMP, which 
authorizes the following gear types: bandit gear, buoy gear, handline, 
hook-and-line, rod-and-reel, spear, purse seine, lampara net, and 
longline (50 CFR 600.725). While some of these gear types can be highly 
selective, none have been identified as being able to single out 
swordfish from other fish and bycatch species. NMFS continues to 
research fishing methods that reduce bycatch and improve catch rates of 
target species.
    Comment 78: The proposed expansion would allow 4 million or more 
deadly hooks to be set in the ocean that are certain to accidentally 
catch and harm leatherbacks, loggerheads, humpback whales, false killer 
whales, seabirds, and several types of fish.
    Response: See the responses to Comments 1 and 2 for why the final 
rule would not jeopardize sea turtles, and Comments 7 and 8 for the 
conditions of fish stocks. The responses to Comments 16 and 49 address 
marine mammal interactions, and the response to Comment 26 and 58 for 
continuing seabird protections.
    Comment 79: This action is in direct violation of the very 
principles that NOAA has been given the duty to uphold.
    Response: This final rule is consistent with the Magnuson-Stevens 
Act, under which the Secretary of Commerce approved Amendment 18. NMFS 
is responsible for enabling domestic fisheries to attain optimal yield 
for the benefit of the Nation, while ensuring that living marine 
resources are conserved and managed in a way that ensures their 
continuation as functioning components of marine ecosystems.
    Comment 80: Consideration was inadequate of cumulative impacts 
(e.g., climate change, collisions with vessels, entanglement in other 
fisheries, non-target species, habitat loss, beach erosion, animal and 
human predation, pollution, plastics, disease, and others) that pose 
jeopardy to ESA listed species in both the EEZ and other portion of the 
species' range.
    Response: Both the FSEIS and the 2008 BiOp considered a wide array 
of cumulative effects on sea turtles, marine mammals, seabirds, and 
target and non-target fish stocks. The action area subject to the 
cumulative effects analysis of this Federal action is a section of the 
North Pacific Ocean, and does not include the continuation of 
activities described under the Environmental Baseline outside the 
action area (see response to Comment 30 for more on effects analysis). 
The 2008 BiOp includes cumulative effects in the analysis of the 2008 
ITS for the Hawaii shallow-set fishery, future actions, and a list of 
U.S. Pacific Fisheries with sea turtle ITS.
    Cumulative effects on the ESA-listed humpback whales, loggerhead, 
leatherback, olive ridley, green, and hawksbill sea turtles are likely 
to occur as a result of worsening climate change, and any increase in 
the fishing, ship traffic, and other actions. However, since the extent 
of climate change, and increases in fishing, ship traffic, and marine 
debris, are unquantifiable, the corresponding effects are also 
unquantifiable. Cumulative effects have been considered and will 
continue to be part of the environment affecting sea turtles and the 
longline fishery that must be addressed through adaptive management 
regardless of which alternative is selected for implementation.
    Comment 81: Due to the lack of monitoring across fishing fleets, 
longline bycatch in other fisheries, juvenile loggerhead impacts, 
injuries, and other stressors, it would seem difficult for NMFS to 
ensure that the direct and indirect effects of this proposed action, in 
addition to activities outside the action area, will not pose jeopardy 
to the loggerhead.
    Response: See the response to Comment 46 for how cumulative impacts 
were considered in the 2008 BiOp.
    Comment 82: The scope of injury assessed to these ESA-listed 
animals in the BiOp should be broadened beyond the action area.
    Response: See the response to Comment 46 for components of the 2008 
BiOp. The environmental baseline for a biological opinion includes the 
past and present impacts of all state, Federal or private actions and 
other human activities in the action area, and for further clarity the 
environmental baseline is ``an analysis of the effects of past and 
ongoing human and natural factors leading to the current status of the 
species, its habitat (including designated critical habitat), and 
ecosystem, within the action area.'' (USFWS & NMFS 1998). The purpose 
of describing the environmental baseline in this manner in a biological 
opinion is to provide the context for the effects of the action on the 
listed species.
    Comment 83: NMFS acknowledges that take of albatross species occurs 
in this fishery, but continues to deny that this take occurs outside 
the jurisdiction of the MBTA.

[[Page 65478]]

    Response: See response to Comment 57 for MBTA applicability to this 
final rule.

Changes From the Proposed Rule

    No changes were made from the proposed rule.

Classification

    The Administrator, Pacific Islands Region, NMFS, determined that 
this final rule is necessary for the conservation and management of the 
pelagic shallow-set longline fishery and that it is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    An FSEIS for this action was filed with the Environmental 
Protection Agency. A notice of availability of the FSEIS was published 
on April 10, 2009 (74 FR 16388). In approving the Amendment 18 on June 
17, 2009, NMFS issued a record of decision (ROD) identifying the 
selected alternative. A copy of the ROD is available from William L. 
Robinson, NMFS, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814. 
The action provides additional opportunities for Hawaii-based shallow-
set longline fishermen to fish for swordfish while continuing to 
conserve protected species. Removing the effort limitations, and set 
certificate program, would increase fishing effort, but would not 
exceed MSY or contribute to overfishing of swordfish and other fish 
species. The action would not have adverse conservation and recovery 
impacts on loggerhead or leatherback sea turtles. The action is not 
likely to cause significant adverse effects to marine mammals, 
migratory birds, essential fish habitat, or habitat areas of particular 
concern. The complete analysis of the alternatives is contained in 
Amendment 18 and final SEIS, and is not repeated here. The 
environmental analytical documents are available from 
www.regulations.gov and the Council (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the IRFA, a summary of the significant issues raised 
by the public comments in response to the IRFA and NMFS responses to 
those comments, and a summary of the analyses completed to support the 
action. The FRFA follows:
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the preamble to this 
rule. There are no disproportionate economic impacts from this rule 
based on home port, gear type, or relative vessel size. There are no 
recordkeeping, reporting, or other compliance costs associated with 
this rulemaking. In the absence of relevant cost data, gross revenue 
is used as proxy for profitability. There were no comments received 
on the IRFA during the comment period.

Description and estimate of the number of small entities to which the 
rule applies

    About 30 active Hawaii-based swordfish longline vessels and an 
indeterminate number of non-active permit holders may be affected by 
this rulemaking. Between 2005 and 2007, 29 to 37 vessels 
participated in the shallow-set longline fishery for swordfish. The 
average revenue earned by vessels from participating in the shallow-
set swordfish fishery in 2005 through 2007 was $225,227. In addition 
it is believed that the majority of participants are also active in 
the deep-set longline fishery during the course of a year; thus, 
their shallow-set revenues represent one portion of their total 
revenue. In 2007, the overall average (combined deep-set and 
shallow-set longline fisheries) ex-vessel revenue was $62.6 million 
realized by a total of 129 active vessels. On a per-vessel basis, 
this yields an average ex-vessel revenue of $486,039 per vessel, 
still far below the $4.0 million threshold. Therefore, all vessels 
are considered to be small entities under the definition provided by 
the Small Business Administration (SBA) as follows: any fish-
harvesting business is a small business if it is independently owned 
and operated and not dominant in its field of operation and has 
annual receipts not in excess of $4.0 million.

Economic Impacts

    Alternative 1-F will have no adverse economic impact on the 30 
individual vessels comprising the fishery. In 2007, 29 vessels made 
1,497 sets, and the 27 vessels fishing in 2008 made 1,587 sets. 
Since the fishery had reopened in 2004, it has never approached the 
current cap of 2,120 sets. Therefore, this rule would lift a 
constraint that has not been historically tested by the present 
participants in the fishery. The elimination of the cap, 
accordingly, would be expected to have no economic impact on the 30 
participants in the fishery. In the long term, removal of the set 
limit is expected to allow for the entry of new vessels into the 
fishery thus increasing available rents to the fishery as a whole. 
This is discussed in length in the Regulatory Impact Review (see 
ADDRESSES).
    Since the fishery has been closed as a result of reaching the 
current loggerhead cap, the increase in allowable turtle 
interactions for loggerheads would theoretically translate to a 
potential increase in gross revenues and vessel profitability that 
could be measured by comparing the total revenues associated with 
the old interaction cap and the total revenues associated with the 
new interaction cap. The reduction in allowable leatherback 
interactions, however, would theoretically have no economic impact 
to the fishery in the short run since historically the leatherback 
cap of 16 has not been reached. However, data on the relationship 
between turtle interactions and catch is not reliable because of the 
newness of the managed fish and the lack of data points. Therefore, 
those economic impacts would be indeterminate in the short term.
    Alternative 2-B, the removal of the requirement for set 
certificates, will have a minimal yet positive impact on individual 
vessel owners that would have needed additional certificates to 
prosecute the fishery. The gross revenue derived from a set averages 
approximately $5,000, and the sale of set certificates by those 
owning a limited access permit has been reported by industry to be 
between $50 and $100, or 2 to 3 percent of gross revenue per set. 
This would reflect a cost savings to the vessel and an enhancement 
of profitability. Alternatively, those that have historically sold 
their certificates in lieu of fishing could lose $50 to $100 dollars 
per set per year. The private sale of certificates has not been 
tracked by NMFS due to privacy considerations and the lack of any 
legal requirements to do so. However, if we assume that 
opportunities outside of shallow-set longline fishing equal or 
exceed profits that could be obtained by using their certificates to 
fish, the adverse impact to these permit holders would be 3 percent 
or less. Alternative 3-A will have no impact on the fishery.

Steps Taken by the Agency to Minimize Economic Impact

    There are no significant alternatives to this rulemaking that 
would have a less adverse or more beneficial economic impact than 
the preferred. All other alternatives considered regarding number of 
sets allowed, including the no-action alternative, are expected to 
have no adverse economic impact to the present participants in the 
fishery. The no-action alternative for elimination of set 
certificates would have no economic impact vis-a-vis the present 
fishery and permit holders selling certificates. Since there are no 
adverse impacts to small entities resulting from this rule, NMFS did 
not take steps to minimize economic impact.

Small Entity Compliance Guide

    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 must explain the 
actions a small entity is required to take to comply with a rule or 
group of rules. As part of this rulemaking process, a small entity 
compliance guide was prepared, and will be sent to all Hawaii-based 
pelagic longline vessels. In addition, copies of this final rule and 
guide at www.fpir.noaa.gov/SFD/SFD_regs_2.html
    A formal section 7 consultation under the ESA was conducted for 
Amendment 18 on the effects of the action on ESA-listed marine species. 
In a Biological Opinion dated October 15, 2008, NMFS determined that 
fishing activities under Amendment 18 and its implementing regulations 
may affect, but are not likely to adversely affect, seven ESA-listed

[[Page 65479]]

species (Hawaiian monk seal, and blue, fin, sei, sperm, and North 
Pacific Right whales). NMFS also determined that the action may affect, 
and is likely to adversely affect, six other ESA-listed marine species 
that occur in the action area (humpback whale, and loggerhead, 
leatherback, olive ridley, green, and hawksbill sea turtles). This 
final rule is consistent with the October 2008 Biological Opinion's 
Reasonable and Prudent Measures and Terms and Conditions.
    Additionally, an informal consultation was conducted under section 
7 of the ESA with the U.S. Fish and Wildlife Service (USFWS) on the 
effects of the final rule on the endangered short-tailed albatross. The 
USFWS concurred with the NMFS determination that the action is not 
expected to result in a significant impact on short-tailed albatross 
during the first year after the rule is implemented.

List of Subjects

50 CFR Part 300

    Administrative practice and procedure, International fishing and 
related activities.

50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaii, Hawaiian Natives, Northern Mariana Islands, 
Pacific remote island areas, Reporting and recordkeeping requirements.

    Dated: December 04, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR chapters III and VI are 
amended as follows:

CHAPTER III

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. The authority citation for 50 CFR part 300, subpart B, continues to 
read as follows:

    Authority: 16 U.S.C. 5501 et seq.

0
2. In Sec.  300.17, revise paragraph (b)(1)(v) to read as follows:


Sec.  300.17  Reporting.

* * * * *
    (b) * * *
    (1) * * *
    (v) Pacific Pelagic Longline Longline Logbook (Sec.  665.14(a) of 
this title);
* * * * *

CHAPTER VI

PART 665--FISHERIES IN THE WESTERN PACIFIC

0
3. The authority citation for 50 CFR part 665 continues to read as 
follows:

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


Sec.  665.12  [Amended].

0
4. In Sec.  665.12, remove the definition of ``Shallow-set 
certificate.''

0
5. In Sec.  665.22, remove and reserve paragraphs (bb), (gg), and (hh), 
and revise paragraph (jj) to read as follows:


Sec.  665.22  Prohibitions.

* * * * *
    (jj) Engage in shallow-setting from a vessel registered for use 
under any longline permit issued under Sec.  665.21 north of the 
Equator (0[deg] lat.) with hooks other than circle hooks sized 18/0 or 
larger, with an offset not to exceed 10 degrees, in violation of Sec.  
665.33(f).
* * * * *

0
6. In Sec.  665.32,
0
a. Revise paragraphs (a)(1) and (a)(2);
0
b. Redesignate paragraphs (a)(5) and (a)(6) as paragraphs (a)(6) and 
(a)(7), respectively;
0
c. Add new paragraph (a)(5);
0
d. Revise introductory text to newly-redesignated paragraphs (a)(7)(ii) 
and (a)(7)(iii);
0
e. Add new paragraph (a)(7)(iii)(C);
0
f. In newly-redesignated paragraph (a)(7), redesignate (a)(7)(iv), 
(a)(7)(vii), (a)(7)(viii), (a)(7)(ix), and (a)(7)(x) as new paragraphs 
(a)(8), (a)(9), (a)(10), (a)(11), and (a)(12), respectively; and
0
g. In newly-redesignated paragraph (a)(7), redesignate paragraph 
(a)(7)(v) as paragraph (a)(7)(iv), and redesignate paragraph (a)(7)(vi) 
as paragraph(a)(7)(v).
    The revisions and additions read as follows:


Sec.  665.32  Sea turtle take mitigation measures.

    (a) * * *
    (1) Hawaii longline limited access permits. Any owner or operator 
of a vessel registered for use under a Hawaii longline limited access 
permit must carry aboard the vessel line clippers meeting the minimum 
design standards specified in paragraph (a)(5) of this section, dip 
nets meeting the minimum design standards specified in paragraph (a)(6) 
of this section, and dehookers meeting minimum design and performance 
standards specified in paragraph (a)(7) of this section.
    (2) Other longline vessels with freeboards of more than 3 ft (0.91 
m). Any owner or operator of a longline vessel with a permit issued 
under Sec.  665.21 other than a Hawaii limited access longline permit 
and that has a freeboard of more than 3 ft (0.91 m) must carry aboard 
the vessel line clippers meeting the minimum design standards specified 
in paragraph (a)(5) of this section, dip nets meeting the minimum 
design standards specified in paragraph (a)(6) of this section, and 
dehookers meeting the minimum design and performance standards 
specified in paragraph (a)(7) of this section.
* * * * *
    (5) Line clippers. Line clippers are intended to cut fishing line 
as close as possible to hooked or entangled sea turtles. NMFS has 
established minimum design standards for line clippers. The Arceneaux 
line clipper (ALC) is a model line clipper that meets these minimum 
design standards and may be fabricated from readily available and low-
cost materials (see Figure 1 to this section). The minimum design 
standards are as follows:
    (i) A protected cutting blade. The cutting blade must be curved, 
recessed, contained in a holder, or otherwise afforded some protection 
to minimize direct contact of the cutting surface with sea turtles or 
users of the cutting blade.
    (ii) Cutting blade edge. The blade must be capable of cutting 2.0-
2.1 mm monofilament line and nylon or polypropylene multistrand 
material commonly known as braided mainline or tarred mainline.
    (iii) An extended reach handle for the cutting blade. The line 
clipper must have an extended reach handle or pole of at least 6 ft 
(1.82 m).
    (iv) Secure fastener. The cutting blade must be securely fastened 
to the extended reach handle or pole to ensure effective deployment and 
use.
* * * * *
    (7) * * *
    (ii) Long-handled dehooker for external hooks. This item is 
intended to be used to remove externally-hooked hooks from sea turtles 
that cannot be brought aboard. The long-handled dehooker for ingested 
hooks described in paragraph (a)(7)(i) of this section meets this 
requirement. The minimum design and performance standards are as 
follows: * * *
    * * * * *
    (iii) Long-handled device to pull an ``inverted V''. This item is 
intended to be used to pull an ``inverted V'' in the fishing line when 
disentangling and dehooking entangled sea turtles. One long handled 
device to pull an ``inverted V'' is required on the vessel. The minimum 
design and performance standards are as follows: * * *
* * * * *

[[Page 65480]]

    (C) The long-handled dehookers described in paragraphs (a)(7)(i) 
and (ii) of this section meet this requirement.
* * * * *

0
7. In Sec.  665.33, remove and reserve paragraphs (a), (c), and (e), 
and revise paragraphs (b) and (f) to read as follows:


Sec.  665.33  Western Pacific longline fishing restrictions.

* * * * *
    (b) Limits on sea turtle interactions. (1) Maximum annual limits 
are established on the number of physical interactions that occur each 
calendar year between leatherback and loggerhead sea turtles and 
vessels registered for use under Hawaii longline limited access permits 
while shallow-setting.
    (i) The annual limit for leatherback sea turtles (Dermochelys 
coriacea) is 16, and the annual limit for loggerhead sea turtles 
(Caretta caretta) is 46.
    (ii) If any annual sea turtle interaction limit in paragraph (b)(i) 
of this section is exceeded in a calendar year, the annual limit for 
that sea turtle species will be adjusted downward the following year by 
the number of interactions by which the limit was exceeded.
    (iii) No later than January 31 of each year the Regional 
Administrator will publish a notice in the Federal Register of the 
applicable annual sea turtle interaction limits established pursuant to 
paragraphs (b)(i) and (b)(ii) of this section.
* * * * *
    (f) Any owner or operator of a vessel registered for use under any 
longline permit issued under Sec.  665.21 must use only circle hooks 
sized 18/0 or larger, with an offset not to exceed 10 degrees, when 
shallow-setting north of the Equator (0[deg] lat.). As used in this 
paragraph, an offset circle hook sized 18/0 or larger is one with an 
outer diameter at its widest point no smaller than 1.97 inches (50 mm) 
when measured with the eye of the hook on the vertical axis (y-axis) 
and perpendicular to the horizontal axis (x-axis). As used in this 
paragraph, the allowable offset is measured from the barbed end of the 
hook, and is relative to the parallel plane of the eyed-end, or shank, 
of the hook when laid on its side.
* * * * *
[FR Doc. E9-29444 Filed 12-9-09; 8:45 am]
BILLING CODE 3510-22-S