[Federal Register Volume 77, Number 112 (Monday, June 11, 2012)]
[Proposed Rules]
[Pages 34334-34336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14136]



[[Page 34334]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 120416010-2119-01]
RIN 0648-BB84


Western Pacific Pelagic Fisheries; Revised Limits on Sea Turtle 
Interactions in the Hawaii Shallow-Set Longline Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to revise the annual number of allowable 
incidental interactions that may occur between the Hawaii-based 
shallow-set pelagic longline fishery and leatherback and loggerhead sea 
turtles. NMFS also proposes administrative housekeeping changes to the 
regulations relating to the shallow-set longline fishery. The proposed 
rule would implement terms and conditions of the current biological 
opinion on this fishery, and clarify the regulations.

DATES: NMFS must receive comments on the proposed rule by July 11, 
2012.

ADDRESSES: You may send comments on the proposed rule, identified by 
NOAA-NMFS-2012-0068, to either of the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov; or
     Mail: Michael D. Tosatto, Regional Administrator, NMFS, 
Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, 
Honolulu, HI 96814-4700.
    Instructions: You must send any comments to one of the above two 
addresses to ensure that NMFS receives, documents, and considers the 
comments. Comments sent to any other address or individual, or received 
after the end of the comment period, may not be considered. All 
comments received are a part of the public record and NMFS will 
generally post them to www.regulations.gov without change. All personal 
identifying information (e.g., name, address, etc.) submitted 
voluntarily by the commenter may be publicly accessible. Do not submit 
confidential business information, or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter ``N/A'' in the 
required name and organization fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word 
or Excel, WordPerfect, or Adobe PDF file formats only.
    A biological opinion issued under the Endangered Species Act (ESA) 
and a regulatory impact review issued under Executive Order 12866 
(Regulatory Planning and Review) provide background information on this 
proposed rule. You may view these documents and other supporting 
documentation at www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: The Hawaii-based shallow-set pelagic 
longline fishery (the ``shallow-set fishery'') primarily targets 
swordfish on the high seas of the North Pacific Ocean. The fishery is 
governed by a limited access program, 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, annual 
protected species workshops, and the use of sea turtle, seabird, and 
marine mammal handling and mitigation gear and techniques. NMFS may 
issue a maximum of 164 longline permits, and about 25-30 vessels are 
active in the shallow-set fishery in any given year.
    The fishery interacts incidentally with protected species, 
primarily leatherback and North Pacific loggerhead sea turtles. Pelagic 
fisheries in the U.S. western Pacific are managed under the Fishery 
Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region. 
NMFS established sea turtle conservation and management measures for 
the shallow-set fishery in 2004 (69 FR 17329, April 2, 2004), as 
recommended by the Western Pacific Fishery Management Council 
(Council). NMFS allowed the fishery to interact with (hook or entangle) 
up to 16 leatherback and 17 loggerhead sea turtles. The annual 
interaction limits directly reduce the impacts of the fishery on sea 
turtles.
    NMFS has modified the annual interaction limits several times in 
response to new information or by court order. Most recently, in 2009, 
three environmental groups filed a lawsuit against NMFS (Turtle Island 
Restoration Network, et al., v. Department of Commerce, et al., and 
Hawaii Longline Association, Civil No. 09-00598 DAE (D. HI)) 
challenging a 2008 biological opinion that changed the interaction 
limit for loggerhead sea turtles. Under a consent decree approving 
settlement in 2011, the U.S. District Court (among other directions) 
ordered NMFS to issue a new biological opinion for the shallow-set 
fishery. The District Court also ordered NMFS, pending completion of 
the biological opinion, to reinstate the annual interaction limit for 
loggerhead turtles to the 2004 limits established under the regulations 
published at 69 FR 17329 (April 2, 2004). NMFS revised the limit, and 
the current regulations reflect the Court-ordered annual interaction 
limits of 16 leatherbacks and 17 loggerheads (76 FR 13297, March 11, 
2011). If the fishery reaches either limit, NMFS closes the fishery for 
the remainder of the calendar year.
    As required by the January 2011 Court order, NMFS completed an 
evaluation of the impacts of the continued operation of the shallow-set 
fishery, as governed under the current suite of management measures, on 
marine species protected by the ESA (humpback whales, North Pacific 
loggerhead sea turtle distinct population segment (DPS), leatherback 
sea turtles, olive ridley sea turtles, and green sea turtles), and 
issued a biological opinion on January 30, 2012 (2012 biological 
opinion). In this opinion, NMFS concluded that the proposed action is 
not likely to jeopardize the continued existence (survival and 
recovery) of these five species, and is not likely to destroy or 
adversely modify designated critical habitat. The 2012 biological 
opinion, including the incidental take statement, reasonable and 
prudent management measures, and terms and conditions are available for 
review at www.regulations.gov.
    The 2012 biological opinion is an integral component to managing 
the shallow-set fishery because the one-year incidental take statement 
forms the basis for regulations that specify the annual limit on 
leatherback and North Pacific loggerhead sea turtle interactions with 
the shallow-set fishery.

Proposed Action

    Based on the best available information and analyses of impacts to 
protected species in the 2012 biological opinion, NMFS proposes to 
revise the annual limit on incidental interactions that may occur 
between the Hawaii-based shallow-set pelagic longline fishery and 
leatherback and North Pacific loggerhead sea turtles to 26 and 34 
interactions, respectively. If the fishery reaches either of the 
interaction limits in a given year, NMFS would close the fishery for 
the remainder of that year. The revised limits are consistent with the 
anticipated and authorized interactions identified in the

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2012 biological opinion, and are necessary to manage the impacts of the 
fishery on sea turtles.

Administrative Housekeeping Changes

    NMFS also proposes to make minor housekeeping changes to the 
shallow-set longline regulations for clarity and consistency in 
terminology. NMFS would revise all references to the ``shallow-set 
component of the longline fishery'' to read more simply the ``shallow-
set longline fishery.'' The sections of Title 50 of the Code of Federal 
Regulations that contain the proposed change include Sec.  665.802 
paragraphs (ss) and (tt), and Sec.  665.813 paragraphs (b)(2)(i) and 
(b)(2)(ii), and paragraph (i).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Pelagics FEP, other provisions of the Magnuson-
Stevens Act, and other applicable laws, subject to further 
consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
A description of the action, why it is being considered, and the legal 
basis for this action are contained in the preamble to this proposed 
rule and not repeated here.
    The proposed rule would revise the annual number of incidental 
interactions that may occur between the Hawaii-based shallow-set 
pelagic longline fishery (shallow-set fishery) and leatherback and 
loggerhead sea turtles. The proposed rule would also make 
administrative housekeeping changes to the longline regulations for 
clarity and consistency of terminology. The intent of the proposed rule 
is to implement terms and conditions of the current biological opinion 
on this fishery, and clarify the regulations.
    On January 30, 2012, NMFS issued a no-jeopardy biological opinion 
(2012 biological opinion) after evaluating the best available 
scientific and commercial information. The biological opinion's 
incidental take statement (ITS) anticipates that the fishery will take 
up to 26 leatherback and 34 North Pacific loggerhead sea turtles. These 
incidental interaction limits are higher than the current allowable 
interaction limits established pursuant to a court order at 16 
leatherback and 17 loggerhead sea turtles, and NMFS proposes to revise 
the applicable annual interaction limits in regulations to be 
consistent with the 2012 biological opinion. If the shallow-set fishery 
reaches either limit, NMFS would close the fishery for the remainder of 
the year as required by current regulations.
    NMFS believes that all potential shallow-set fishery participants 
are considered small entities. As of March 2012, 132 vessels held 
Hawaii longline limited entry permits and each is considered a 
potential participant in the shallow-set fishery. The number of vessels 
participating in the shallow-set fishery each year from 2006-2011 
varied from 20 to the mid-30s; these vessels may participate in the 
deep-set fishery each year, too. In 2011, fishermen made about 82 
shallow-set trips, about 32 fewer trips than in 2010. Preliminary data 
for 2011, based on the date fishing gear was retrieved, show that 
shallow-set fishermen conducted 1,468 sets, and retained 14,476 
swordfish, weighing 2,046,906 pounds. They also kept 2,480 albacore, 
5,681 mahimahi, and 1,999 oilfish.
    By raising the sea turtle interaction limits consistent with 
determinations based on the best available scientific and commercial 
data in the 2012 biological opinion, the shallow-set fishery would be 
less likely to reach the annual limit on interactions during the 
fishing year and more likely to be able to continue fishing using 
shallow-set gear throughout the year. Compared with current sea turtle 
interaction limits, the proposed action provides greater fishing 
opportunities for longline fishermen participating or potentially 
participating in the shallow-set fishery. There could be increased 
likelihood of fishing with shallow-set gear throughout the year and, 
thereby, increasing swordfish and other landings for those fishermen 
who predominately fish using shallow-set gear. The proposed action 
would also allow fishermen who primarily fish using deep-set gear 
greater flexibility to opt into the shallow-set fishery for a greater 
part of the year. In addition, the proposed action would reduce the 
uncertainty regarding the potential for an earlier closure of the 
shallow-set fishery, and allow more operational certainty regarding 
where, when, and how to fish, especially in the presence of other 
unforeseen operational issues such as fluctuating fuel costs.
    The proposed action is not expected to have a significant economic 
impact on a substantial number of small entities, either through a 
significant loss in landings or expenses incurred, as it potentially 
expands the opportunity for longline fishermen to participate in the 
shallow-set fishery through a greater part of the year.
    Because this proposed action is not expected to have a significant 
economic impact on a substantial number of small entities, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.

National Environmental Policy Act

    In 2008, as part of the process to develop Amendment 18 to the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region, Modifications for the Hawaii-based Shallow-set Longline 
Swordfish Fishery, the Council developed several recommendations for 
management measures that, consistent with Magnuson-Stevens Fishery 
Conservation and Management Act (16 U.S.C. 1801, et seq.), would enable 
the shallow-set fishery to achieve optimum yield in the North Pacific 
swordfish fishery, without jeopardizing protected species, including 
sea turtles. These recommendations included, among other proposed 
actions, revising the loggerhead turtle interaction limit to 46, and 
maintaining the leatherback turtle interaction limit of 16 (74 FR 
65460, December 10, 2019), corrected at 75 FR 1023, January 8, 2010).
    Amendment 18 included a final supplemental environmental impact 
statement (2009 FSEIS) that analyzed, among other proposed actions, the 
potential environmental impact of increasing the number of allowable 
incidental interactions between the shallow-set fishery and leatherback 
and loggerhead sea turtles. Based on that analysis, NMFS determined in 
a Record of Decision on June 17, 2009, that Amendment 18 provided 
additional opportunities for Hawaii-based shallow-set longline 
fishermen to fish for swordfish, while not creating adverse 
conservation and recovery impacts on leatherback or loggerhead sea 
turtles.
    Since completion of the 2009 FSEIS, there is new information 
relevant to environmental concerns and bearing on Amendment 18 and its 
impacts, including (1) the classification and listing of the North 
Pacific loggerhead sea turtle DPS as endangered, and the no-jeopardy 
2012 biological opinion, (2) a scientific paper on two population 
viability assessment models for leatherback and loggerhead sea turtles, 
(3) four interactions with green sea turtles in 2011, (4) a scientific 
paper on the spillover effect for sea turtles

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resulting from the regulatory measures for the shallow-set fishery, and 
(5) a no-jeopardy biological opinion by the U.S. Fish and Wildlife 
Service on the impacts of the shallow-set fishery on short-tailed 
albatross.
    In light of this new information, NMFS has evaluated whether the 
National Environmental Policy Act (NEPA) requires supplementation of 
the 2009 FSEIS. NMFS has determined that this proposed rule does not 
represent a substantial change to the action as previously analyzed. 
NMFS has further determined that there are no significant new 
circumstances or information relevant to environmental concerns and 
bearing on the implementation of revised incidental interaction limits. 
A supplement to the 2009 FSEIS is, therefore, not required under NEPA. 
You may view the Record of Environmental Consideration at 
www.regulations.gov (see ADDRESSES).

List of Subjects in 50 CFR Part 665

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

    Dated: June 5, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

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

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

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


Sec.  665.802  Prohibitions.

* * * * *
    (ss) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit after the shallow-set 
longline fishery has been closed pursuant to Sec.  665.813(b), in 
violation of Sec.  665.813(i).
    (tt) Fail to immediately retrieve longline fishing gear upon 
receipt of actual notice that the shallow-set longline fishery has been 
closed pursuant to Sec.  665.813(b), in violation of Sec.  665.813(i).
* * * * *
    3. In Sec.  665.813, revise paragraphs (b)(1), (b)(2), (b)(2)(i), 
(b)(2)(ii), and paragraph (i) to read as follows:


Sec.  665.813  Western Pacific longline fishing restrictions.

* * * * *
    (b) * * *
    (1) Maximum annual limits are established on the number of physical 
interactions that occur each calendar year between leatherback and 
North Pacific loggerhead sea turtles and vessels registered for use 
under Hawaii longline limited access permits while shallow-setting. The 
annual limit for leatherback sea turtles (Dermochelys coriacea) is 26, 
and the annual limit for North Pacific loggerhead sea turtles (Caretta 
caretta) is 34.
    (2) Upon determination by the Regional Administrator that, based on 
data from NMFS observers, the fishery has reached either of the two sea 
turtle interaction limits during a given calendar year:
    (i) As soon as practicable, the Regional Administrator will file 
for publication at the Office of the Federal Register a notification 
that the fishery reached a sea turtle interaction limit. The 
notification will include an advisement that the shallow-set longline 
fishery shall be closed, and that shallow-set longline fishing north of 
the Equator by vessels registered for use under Hawaii longline limited 
access permits will be prohibited beginning at a specified date until 
the end of the calendar year in which the sea turtle interaction limit 
was reached. Coincidental with the filing of the notification, the 
Regional Administrator will also provide actual notice that the 
shallow-set longline fishery shall be closed, and that shallow-set 
longline fishing north of the Equator by vessels registered for use 
under Hawaii longline limited access permits will be prohibited 
beginning at a specified date, to all holders of Hawaii longline 
limited access permits via telephone, satellite telephone, radio, 
electronic mail, facsimile transmission, or post.
    (ii) Beginning on the fishery closure date indicated by the 
Regional Administrator in the notification provided to vessel operators 
and permit holders and published in the Federal Register under 
paragraph (b)(2)(i) of this section, until the end of the calendar year 
in which the sea turtle interaction limit was reached, the Hawaii-based 
shallow-set longline fishery shall be closed.
* * * * *
    (i) Vessels registered for use under Hawaii longline limited access 
permits may not be used to engage in shallow-setting north of the 
Equator (0[deg] lat.) any time during which the shallow-set longline 
fishery is closed pursuant to paragraph (b)(2)(ii) of this section.
* * * * *
[FR Doc. 2012-14136 Filed 6-8-12; 8:45 am]
BILLING CODE 3510-22-P