[Federal Register Volume 85, Number 23 (Tuesday, February 4, 2020)]
[Proposed Rules]
[Pages 6131-6135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02095]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 200129-0036]
RIN 0648-BJ27


Pacific Island Fisheries; Sea Turtle Limits in the Hawaii 
Shallow-Set Longline Fishery

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to revise measures that govern interactions 
between the Hawaii shallow-set pelagic longline fishery and sea 
turtles. Based on recommendations from the Western Pacific Fishery 
Management Council (Council), we would lower the annual fleet 
interaction limit (``hard cap'') for leatherback sea turtles from 26 to 
16, and remove the annual fleet hard cap for North Pacific loggerhead 
turtles (currently 17). NMFS would also create individual trip 
interaction limits of two leatherback and five North Pacific loggerhead 
turtle interactions, with accountability measures for reaching a limit. 
The proposed rule would provide managers and fishermen with the 
necessary tools to respond to and mitigate changes in North Pacific 
loggerhead and leatherback turtle interactions, to ensure a continued 
supply of fresh domestic swordfish to U.S. markets, consistent with the 
conservation needs of these sea turtles. The action also ensures that 
the Hawaii shallow-set longline fishery operates in compliance with the 
Reasonable and Prudent Measures (RPMs) and associated Terms and 
Conditions (T&Cs) of a biological opinion (BiOp) issued by NMFS on June 
26, 2019.

DATES: NMFS must receive comments by March 20, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0098, by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0098, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Send written comments to Michael D. Tosatto, 
Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp 
Blvd., Bldg. 176, Honolulu, HI 96818.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N A'' in the required fields if you wish to remain 
anonymous).
    The Council prepared Amendment 10 to the Fishery Ecosystem Plan for 
the Pelagic Fisheries of the Western Pacific (FEP), including an 
environmental assessment (EA) and Regulatory Impact Review, which 
describes the potential impacts on the human environment that would 
result from the proposed rule. Copies of Amendment 10 and supporting 
documents are available at www.regulations.gov, or from the Council, 
1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 
808-522-8226, www.fxsp0;wpcouncil.org.

FOR FURTHER INFORMATION CONTACT: Joshua Lee, NMFS PIR Sustainable 
Fisheries, 808-725-5177.

SUPPLEMENTARY INFORMATION: The Hawaii shallow-set pelagic longline 
fishery primarily targets swordfish (Xiphias gladius) on the high seas 
in the

[[Page 6132]]

North Pacific Ocean. The Council and NMFS manage the fishery under the 
FEP and implementing regulations, as authorized by the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). During 
fishing operations, vessels in the fishery occasionally hook or 
entangle protected species, including sea turtles. To address these 
interactions, the Council recommended, and NMFS implemented, several 
conservation and management measures (69 FR 17329, April 2, 2004). 
Shallow-set longline vessels are required to use circle hooks and 
mackerel-type bait to minimize interactions with sea turtles, and to 
carry and use specialized tools to improve the turtles' post-
interaction survival.
    NMFS also implemented annual limits (referred to as hard caps) on 
the number of interactions allowed between the fishery and two turtle 
species, the leatherback and North Pacific loggerhead. Historically, 
hard caps were based on the expected annual level of interaction with 
these sea turtles, and the T&C of the most recent BiOp. If the fishery 
reaches either hard cap, NMFS closes the fishery for the remainder of 
the calendar year. NMFS has modified the annual hard caps several times 
in response to new information or by court order (74 FR 65460, December 
10, 2009; 76 FR 13297, March 11, 2011; 77 FR 60637, October 4, 2012; 83 
FR 49495, October 2, 2018).
    The current annual fleet hard cap for leatherback turtles is 26, 
equal to the incidental take statement (ITS) in a NMFS 2012 BiOp. The 
current annual hard cap for loggerhead sea turtles is 17, based on a 
stipulated settlement agreement of May 4, 2018, that set the limit 
equal to the ITS in a NMFS 2004 BiOp. These annual fleet hard caps 
prevent turtle takes above a specified limit, but do not provide rapid 
response to unforeseen higher interaction rates, which may indicate a 
potential for increased effects on sea turtle populations or a fishery 
closure early in the year.
    On June 26, 2019, NMFS issued a BiOp on the effects of the shallow-
set fishery on marine species listed under the Endangered Species Act 
(ESA). Based on the information in the 2019 BiOp, NMFS concluded that 
the continued authorization of the fishery is not likely to jeopardize 
the continued existence of ESA-listed species, including leatherback 
and North Pacific loggerhead turtles. The BiOp includes an ITS and RPMs 
necessary to minimize the effects of incidental take. NMFS must 
implement the RPMs for the fishery's take exemption in ESA section 
7(o)(2) to apply. Of the six RPMs in the 2019 BiOp, RPM 1 (and 
associated T&C 1a and 1b) must be implemented by regulation to reduce 
the incidental capture and mortality of leatherback and loggerhead sea 
turtles.

Fleet Limits

    T&C 1a requires setting an annual fleet hard cap of 16 leatherback 
turtles. Accordingly, this proposed rule would revise the annual fleet 
hard cap from 26 to 16. The Council recommended the revision, 
consistent with the anticipated level of annual interactions (21), as 
reduced by the applicable RPM in the 2019 BiOp. If the shallow-set 
fleet reaches this limit, NMFS would close the fishery for the 
remainder of the calendar year.
    The proposed rule would remove the annual fleet hard cap on North 
Pacific loggerhead turtle interactions. The Council determined that a 
fleet hard cap for this species is not necessary at this time for the 
conservation of the North Pacific loggerhead turtle in light of the 
abundance and increasing trend of the population, the proposed 
individual vessel trip limit, and the accountability measure pursuant 
to the 2019 BiOp RPM for vessels that might reach a trip limit twice in 
a calendar year. If the fishery exceeds the ITS in the current valid 
BiOp, NMFS would reinitiate Section 7 consultation, as required by the 
ESA.

Trip Limits

    T&C 1b requires NMFS to establish limits of two leatherback and 
five loggerhead turtles per vessel per individual fishing trip, with 
additional restrictions on vessels that might reach a trip limit twice 
in a calendar year. If a vessel reaches either trip limit, NMFS would 
require the vessel to stop fishing, return to port, and refrain from 
shallow-set longline fishing for five days after returning to port.
    If a vessel reaches a trip limit a second time during a calendar 
year, for the same turtle species as the first instance, it would be 
prohibited from engaging in shallow-set fishing for the remainder of 
the calendar year. As an additional accountability measure, in the 
subsequent calendar year, that vessel would be limited to an annual 
interaction limit for that species (two leatherbacks or five 
loggerheads). If the vessel then reaches that subsequent year's 
interaction limit, it would be prohibited from shallow-set fishing for 
the remainder of that calendar year.
    In addition to the proposed rule described above, the Council and 
NMFS would continue to manage the fishery under existing gear and 
handling requirements designed to minimize effects on sea turtles. 
These include the required use of 18/0 or larger circle hooks with no 
more than 10[deg] offset and mackerel-type bait, adherence to 
regulations for safe handling and release of sea turtles, and required 
turtle handling and dehooking gear. NMFS would continue to monitor the 
Hawaii shallow-set longline fishery under statistically-reliable 
observer coverage. Observers report sea turtle interactions via 
satellite phone immediately after each observation so that NMFS can 
monitor the compliance with interaction limits in near real-time.
    NMFS must receive any comments by the date provided in the DATES 
heading. In addition, NMFS is soliciting comments on proposed Amendment 
10 to the Pelagics FEP, as stated in the Notice of Availability 
published on January 23, 2020 (85 FR 3889). NMFS must receive comments 
on the Notice of Availability by March 23, 2020. The Secretary of 
Commerce will consider public comments received in response to the 
requests for comments in the Notice of Availability and in this 
proposed rule in the decision to approve, partially approve, or 
disapprove Amendment 10.

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 FEP, other provisions of the Magnuson-Stevens Act, 
and other applicable laws, subject to further consideration after 
public comment.

Certification of Finding of No Significant Impact on Substantial Number 
of Small Entities

    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. 
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. It would also implement new individual trip 
limits on the number of turtle interactions with additional 
restrictions.
    The Hawaii shallow-set longline fishery, under Amendment 3 to the 
Pelagics Fishery Management Plan (currently Fishery Ecosystem Plan 
(FEP)) implemented in 2004, had reduced loggerhead and leatherback sea

[[Page 6133]]

turtle interactions by approximately 90 percent through the 
establishment of annual fleet-wide interaction limits (``hard caps'') 
among other measures. These hard caps, if reached, would trigger the 
closure of the fishery for the remainder of the calendar year. But the 
hard caps, as currently implemented, do not provide a mechanism to 
respond earlier in the year when higher interaction rates indicate both 
higher impacts to sea turtle populations as well as higher potential 
for shallow-set longline fishermen reaching hard caps before the end of 
the fishing season.
    On April 20, 2018, NMFS reinitiated ESA Section 7 consultation on 
the fishery due to (1) the fishery's first documented interaction with 
a Guadalupe fur seal, which is listed as threatened under the ESA, (2) 
issuance of a final rule listing 11 new green sea turtle distinct 
population segments, (3) listings of oceanic whitetip shark and giant 
manta ray as threatened under the ESA, (4) the fishery's exceedance of 
the incidental take statement (ITS) for olive ridley sea turtles, and 
(5) a Ninth Circuit Court of Appeals opinion finding that NMFS 2012 
BiOp no-jeopardy determination and associated ITS for the loggerhead 
turtle was arbitrary and capricious. The final biological opinion 
(BiOp) was issued on June 26, 2019. The ITS in the 2019 BiOp sets forth 
reasonable and prudent measures (RPMs) and associated terms and 
conditions (T&Cs) necessary to minimize the impacts of incidental take. 
RPM 1 and associated T&C 1a and 1b requires implementation of 
regulatory measures to reduce the incidental capture and mortality of 
loggerhead and leatherback sea turtles in the shallow-set fishery.
    The purpose of this action is to implement Amendment 10 to the 
Pelagics FEP in order to modify sea turtle mitigation measures for 
effectively managing impacts to leatherback and loggerhead sea turtles 
from the shallow-set fishery. This action is needed to provide managers 
and fishery participants with the necessary tools to respond to and 
mitigate fluctuations in loggerhead and leatherback turtle interactions 
and to ensure a continued supply of fresh swordfish to U.S. markets, 
consistent with the conservation needs of these sea turtles. This 
action is also needed to ensure that the shallow-set fishery operates 
in compliance with the RPMs and T&Cs of the 2019 BiOp.
    Under the proposed rule, the annual limit on the number of 
leatherback turtle interactions would be set to 16, while loggerhead 
turtles would no longer be subject to an annual fleet-wide hard cap 
limit--currently set at 17. Once the leatherback hard cap limit is 
reached, the fishery would close for the remainder of the calendar 
year. The proposed rule would also establish individual trip limits of 
five loggerhead and two leatherback turtle interactions for the Hawaii 
limited entry permit vessels that declare their trips as a shallow-set 
trip.
    The individual trip limits would provide a mechanism for early 
response during times of higher interaction rates and are expected to 
help ensure year-round operations of the shallow-set fishery. Once a 
vessel has reached the trip limit for either the loggerhead or the 
leatherback turtle, that vessel cannot make additional sets and is 
required to return to port. The vessel would also be prohibited from 
engaging in shallow-set longline fishing for five days after returning 
to port. If a vessel reaches a trip limit a second time during a 
calendar year, for the same turtle species as the first instance, it 
would be prohibited from engaging in shallow-set fishing for the 
remainder of the calendar year. These vessels would also have an annual 
vessel limit equivalent to a single trip limit for that sea turtle 
species for the following calendar year.
    The likelihood of a vessel reaching a trip limit is very low based 
on past observer data. From 2004 to 2019 period, 0.2 percent of all 
trips (3 trips out of 1,107 trips) had 5 or more loggerhead turtle 
interactions in a trip. In the same period, 0.9 percent of all trips 
(10 trips out of 1,107 trips) had 2 or more leatherback turtle 
interactions in a trip. Therefore, the fleet-wide economic cost of 
vessels reaching a trip limit is likely to be negligible. The 
individual trip limits are expected to prevent a large number of 
loggerheads or leatherbacks from being taken in a single trip or by a 
single vessel, as vessels are likely to take actions to try to avoid 
sea turtle interactions when nearing the trip limit. This would in turn 
allow the remaining vessels to continue fishing for swordfish 
throughout the peak season and continue to fish throughout the year, 
resulting in a minor to moderate positive benefits for most vessels and 
minimizing the fleet-wide impacts to catch and revenue from fleet-wide 
hard cap closures compared to taking no action.
    In terms of potential loss in individual trip revenue, an 
individual vessel that reaches a trip limit is expected to experience 
some loss in revenue, especially if a trip limit is reached early in 
the trip. Based on trip cost and revenue data in the 2018 SAFE Report 
(WPFMC 2019), the average trip cost excluding labor costs for the 
recent five year period (2014-2018) is $44,764, and the average trip 
revenue for the same period is $103,074, resulting in an average net 
revenue of $58,310 per trip (all averages calculated with values 
adjusted for 2018). The average trip length is 32 days, and the average 
number of sets per trip is 16. The total number of fishing days can be 
estimated by adding one day to the number of sets per trip, resulting 
in an average transit time of 15 days to and from port. Of the trip 
cost, fuel cost accounted for 49 percent, bait was 19 percent, fishing 
gear 9 percent, provisions 8 percent, light sticks 10 percent, engine 
oil 2 percent, ice 1 percent, and communications 2 percent (WPFMC 
2018). Trip cost, revenue, and percentage reduction in revenue 
resulting under different scenarios of reaching trip limits were 
estimated by adjusting the average trip cost and revenue for the number 
of days fished (Table 1). These estimates allow for a rough comparison 
among scenarios. Based on these estimates, in a worst-case scenario in 
which a vessel reaches a trip limit on the first set, the vessel is 
estimated to have a 116 percent reduction in net revenue, resulting in 
a net loss of $9,575 (excluding labor costs) for that trip. If a vessel 
reaches a trip limit after 5 sets, the vessel is estimated to have an 
85 percent reduction in net revenue, at a net revenue of $8,528 for 
that trip. A vessel that reaches a trip limit after 10 sets is 
estimated to have a 45 percent reduction in net revenue, at a net 
revenue of $32,009 for that trip.

[[Page 6134]]



Table 1--Comparison of Trip Cost, Trip Revenue, Net Revenue, and Percent Reduction in Net Revenue for Full Trips
  and Three Scenarios of Reaching a Trip Limit (at 1st, 5th and 10th set of the trip). Trip Cost Excludes Labor
                                                     Costs).
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                                                                                                      Percent
                                                                                                   reduction in
                    Scenarios                        Trip cost     Trip revenue     Net revenue    net  revenue
                                                                                                        (%)
----------------------------------------------------------------------------------------------------------------
Full Trip \1\...................................         $44,764        $103,074        $ 58,310  ..............
Trip limit reached in first set.................          16,017           6,442         (9,575)             116
Trip limit reached in fifth set.................          23,683          32,211           8,528              85
Trip limit reached in tenth set.................          32,412          64,421          32,009              45
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\1\ This scenario represents approximately 16 fishing sets and 32 sea days.

    The shallow-set fishery has been subject to four early closures 
since 2004: Once in March 2006 from reaching the loggerhead limit of 17 
turtles, another in November 201l from reaching the leatherback limit 
of 16 turtles, another in May 2018 in compliance with a court order 
(TIRN v. NMFS (9th Cir. 2017)), and lastly in 2019 when the fishery 
reached the loggerhead hard cap of 17 turtles. Compared to the status 
quo/no action scenario, under the proposed action the fishery is likely 
to have a much lower likelihood of closing early in the calendar year 
from reaching the hard cap due to the combination of individual trip 
limits and the lack of a loggerhead hard cap limit.
    This would provide greater fishing opportunities for longline 
fishermen participating or potentially participating in the shallow-set 
fishery. Not only would there be increased likelihood of fishing with 
shallow-set gear throughout the year and, thereby, increasing swordfish 
and other landings for those fishermen who solely fish using shallow-
set gear, it also would 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 early closure of the 
shallow-set fishing, 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.
    NMFS believes that all potential shallow-set fishery participants 
are considered small entities. The shallow-set and deep-set longline 
fisheries are managed under a single limited access fishery with a 
maximum of 164 vessel permits with active vessel participation 
increasing in recent years. As of October 2019, 148 vessels are 
actively fishing and each of the 164 vessel permit holders is 
considered a potential participant in the shallow-set fishery. The 
number of vessels participating in the shallow-set fishery each year 
from 2014-2018 varied from 20 to 11; these vessels may participate in 
the deep-set fishery each year, too. In 2017, 18 fishermen made about 
61 shallow-set trips; in 2018, 11 fishermen made 30 shallow-set trips, 
before the fishery closed in May 2018 in compliance with court order 
(TIRN v. NMFS (9th Cir. 2017)).
    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. As a result, an 
initial regulatory flexibility analysis is not required and none has 
been prepared.

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 13771

    This proposed rule is not an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 
12866.

List of Subjects in 50 CFR Part 665

    Hawaii, Leatherback sea turtle, Pelagic longline fishing, North 
Pacific loggerhead sea turtle.

    Dated: January 29, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 665 as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

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

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

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


Sec.  665.802  Prohibitions.

* * * * *
    (ss) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit after the shallow-set 
longline fishery has been closed, or upon notice that that the vessel 
is restricted from fishing, in violation of Sec. Sec.  665.813(b) and 
665.813(i).
* * * * *
    (tt) Fail to immediately retrieve longline fishing gear upon notice 
that the shallow-set longline fishery has been closed, or upon notice 
that that the vessel is restricted from fishing, in violation of Sec.  
665.813(b).
* * * * *
0
3. In Sec.  665.813 revise paragraphs (b) and (i) to read as follows:


Sec.  665.813  Western Pacific longline fishing restrictions.

* * * * *
    (b) Limits on sea turtle interactions in the shallow-set longline 
fishery. (1) Fleet Limits. There are limits on the maximum number of 
allowable physical interactions that occur each year between 
leatherback sea turtles and vessels registered for use under Hawaii 
longline limited access permits while engaged in shallow-set fishing.
    (i) The annual fleet limit for leatherback sea turtles (Dermochelys 
coriacea) is 16.
    (ii) Upon determination by the Regional Administrator that the 
shallow-set fleet has reached the limit during a given calendar year, 
the Regional Administrator will, as soon as practicable, file for 
publication at the Office of the Federal Register a notification that 
the fleet reached the limit, and that shallow-set fishing north of the 
Equator will be prohibited beginning at a specified date until the end 
of the calendar year in which the limit was reached.

[[Page 6135]]

    (2) Trip limits. There are limits on the maximum number of 
allowable physical interactions that occur during a single fishing trip 
between leatherback and North Pacific loggerhead sea turtles and 
individual vessels registered for use under Hawaii longline limited 
access permits while engaged in shallow-set fishing. For purposes of 
this section, a shallow-set fishing trip commences when a vessel 
departs port, and ends when the vessel returns to port, regardless of 
whether fish are landed. For purposes of this section, a calendar year 
is the year in which a vessel reaches a trip limit.
    (i) The trip limit for leatherback sea turtles is 2, and the trip 
limit for North Pacific loggerhead sea turtles (Caretta caretta) is 5.
    (ii) Upon determination by the Regional Administrator that a vessel 
has reached either sea turtle limit during a single fishing trip, the 
Regional Administrator will notify the permit holder and the vessel 
operator that the vessel has reached a trip limit, and that the vessel 
is required to immediately retrieve all fishing gear and stop fishing.
    (iii) Upon notification, the vessel operator shall immediately 
retrieve all fishing gear, stop fishing, and return to port.
    (iv) A vessel that reaches a trip limit for either turtle species 
during a calendar year shall be prohibited from engaging in shallow-set 
fishing during the 5 days immediately following the vessel's return to 
port.
    (v) A vessel that reaches a trip limit a second time during a 
calendar year, for the same turtle species as the first instance, shall 
be prohibited from engaging in shallow-set fishing for the remainder of 
that calendar year. Additionally, in the subsequent calendar year, that 
vessel shall be limited to an annual interaction limit for that 
species, either 2 leatherback or 5 North Pacific loggerhead sea 
turtles. If that subsequent annual interaction limit is reached, that 
vessel shall be prohibited from engaging in shallow-set fishing for the 
remainder of that calendar year.
    (vi) Upon determination by the Regional Administrator that a vessel 
has reached an annual interaction limit, the Regional Administrator 
will notify the permit holder and the vessel operator that the vessel 
has reached the limit, and that the vessel is required to immediately 
stop fishing and return to port.
    (vii) Upon notification, the vessel operator shall immediately 
retrieve all fishing gear, stop fishing, and return to port.
* * * * *
    (i) A vessel registered for use under a Hawaii longline limited 
access permit may not be used to engage in shallow-setting north of the 
Equator any time during which shallow-set fishing is prohibited 
pursuant to paragraphs (b)(1) or (b)(2) of this section.
* * * * *

[FR Doc. 2020-02095 Filed 2-3-20; 8:45 am]
 BILLING CODE 3510-22-P