[Federal Register Volume 85, Number 181 (Thursday, September 17, 2020)]
[Rules and Regulations]
[Pages 57988-57997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20304]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 200908-0235]
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: Final rule.
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SUMMARY: This final rule revises measures that govern interactions
between the Hawaii shallow-set pelagic longline fishery and sea
turtles. This rule lowers the annual fleet interaction limit (``hard
cap'') for leatherback sea turtles from 26 to 16, and removes the
annual fleet hard cap for North Pacific loggerhead turtles. This rule
also creates individual trip interaction limits of two leatherback and
five North Pacific loggerhead turtle interactions, with accountability
measures for reaching a limit. This rule provides 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. This
action also ensures that the Hawaii shallow-set longline fishery
operates in compliance with the conditions of a recent biological
opinion (BiOp).
DATES: This rule is effective September 17, 2020.
ADDRESSES: Copies of Amendment 10 to the Fishery Ecosystem Plan for
Pelagic Fisheries of the Western Pacific (FEP) and supporting documents
are available at www.regulations.gov, or from the Western Pacific
Fishery Management Council, 1164 Bishop St., Suite 1400, Honolulu, HI
96813, tel 808-522-8220, fax 808-522-8226, www.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 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. The fishery
occasionally hooks or entangles protected species, including sea
turtles. To address these interactions, NMFS has implemented
conservation and management measures, including limits on the number of
interactions allowed between the fishery and leatherback and North
Pacific loggerhead sea turtles.
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). The BiOp includes measures required to minimize the effects of
incidental take. This rule implements some of those measures. This rule
revises the annual fleet hard cap for leatherback sea turtles from 26
to 16. If the fleet reaches this limit, NMFS would close the fishery
for the remainder of the calendar year. This rule also removes the
annual fleet hard cap on North Pacific loggerhead turtle interactions
because it is not necessary at this time for the conservation of this
species. If the fishery exceeds the Incidental Take Statement (ITS) for
any species in the current valid BiOp, NMFS would reinitiate ESA
Section 7 consultation for that species. Finally, this rule establishes
limits of two leatherback and five loggerhead turtles per vessel per
individual fishing trip. If a vessel reaches either sea turtle limit
during a fishing trip, it must immediately stop fishing and return to
port, and may not resume shallow-setting until it meets certain
requirements. Additional restrictions apply to vessels that might reach
a trip limit twice in a calendar year.
All other requirements in this fishery continue, and NMFS will
continue to monitor the Hawaii shallow-set longline fishery. You may
find additional background information on this action in the preamble
to the proposed rule (85 FR 6131, February 4, 2020), and it is not
repeated here.
Comments and Responses
On January 23, 2020, NMFS published a notice of availability (NOA)
for Amendment 10, including an environmental assessment (EA), and
request for public comments (85 FR 3889); the comment period ended
March 23, 2020. On February 4, 2020, NMFS published a proposed rule
that would implement the management measures described in Amendment 10
(85 FR 6131). That comment period ended on March 20, 2020. NMFS
received comments from individuals, the fishing industry and non-
governmental organizations, and a petition with signatures, and
responds below. Additionally, NMFS received and considered all comments
requesting additional minor corrections and clarifications when
finalizing Amendment 10 and the EA associated with this final action.
Comment 1: NMFS unlawfully failed to apply the best scientific
information available when it ``failed'' to consider a population
viability analysis (PVA) model of leatherback and loggerhead trends
with and without fishery mortalities. NMFS ``refused'' to model sea
turtle trends with mortalities because it could not explain why the
fisheries' impacts would not accelerate the species' decline. As a
result, the biological opinion merely describes the proportion of the
adult population and total population that the fishery is expected to
kill at benchmark intervals, which is the approach invalidated in TIRN
v. NMFS, 878 F3d 725 (9th Cir. 2017). Moreover, the Ninth Circuit has
[[Page 57989]]
held that where baseline conditions already jeopardize a species, an
agency may not take action that deepens the jeopardy by causing
additional harm. NWF v. NMFS, 524 F3d 918 (9th Cir. 2008). Without any
valid scientific analysis, there is no basis for NMFS to conclude that
fishery mortalities would not jeopardize loggerhead or leatherback sea
turtles. The PVA take model finalized after the biological opinion was
completed confirms that the action accelerates species decline and is
therefore jeopardizing.
Response: In conducting the consultation required by Section 7 of
the ESA, NMFS is required to use the best scientific and commercial
data available. NMFS met this mandate. As described in more detail
below, the type of analysis envisioned by the requester is neither a
singular nor a simple analysis. Rather, it involves the creation of
three separate models. By the time the biological opinion was issued in
June of 2019, NMFS had two of the three models (including a PVA model)
and took them into account in the development of the biological
opinion. The final model was not available until March 2020, several
months after the biological opinion was issued.
Importantly, the model the commenter alludes to is actually
composed of three separate modeling elements, which must occur
sequentially and cannot be performed simultaneously. First, a Bayesian
model or prediction of the number of future interactions that each
species would be likely to have with shallow-set vessels must be
developed; then, a PVA must be developed for the entire population;
step three is the development of the final model, the so-called ``take
model.'' This is a mortality model that requires backing out
information on the fishery that is already incorporated into the PVA,
to avoid the ``double-counting'' of the fishery impact, and recomputing
the trend, with and without the fishery. This take model was not
available until March 2020.
While the first two elements of this overall modeling were
available and considered as part of the biological opinion, NMFS
recognized that there were important limitations to the modeling that
needed to be taken into account. Initially, NMFS was concerned that
drawing inferences from models developed with incomplete trend data
representing less than one generation and virtually no demographic
data, would give the appearance of precision when, in fact, data on
loggerhead and leatherback sea turtles are insufficient to develop
reliable models of the effect of ``take'' pre- and post-fishery.
This issue has long been a source of concern to the scientific
community, and is discussed at length in the National Research Council
2010 publication, ``Assessment of Sea-Turtle Status and Trends:
Integrating Demography and Abundance.'' More than 10 years ago, the
National Academies of Sciences gathered together a team of
international scientists to discuss sea turtle assessments and models,
and underlying the entire review is one singular problem--that sea
turtle modeling and analysis that has been done has had to ``compensate
for a debilitating lack of data (NRC 2010).'' Although progress has
been made, this data problem persists as there continues to be a
substantial lack of demographic data available on sea turtles.
Importantly, for most sea turtle populations, there are no or very
limited population-specific demographic data, such as life-stage
durations or survival rates. This is true of loggerhead and leatherback
sea turtles, as considered in the BiOp. Appropriate data on vital rates
are critical for sea turtle population estimation, because nest count
data and adult nesters represent only a very small fraction of the
total population. ``These are clear reasons not to put too much
confidence in the assessment of trends in nesting numbers, even if it
uses the ``best available data'' in a careful and rational way''
(Crowder 2018).
Recognizing the inherent limitations in modeling with limited
demographic data, and because NMFS was cautious about the falsely
implied precision of converting all individual turtles that interact
with the fishery to an estimated number of adult nester equivalents so
as to establish a common currency by which to evaluate the effect of
the fishery against the PVA, NMFS determined that the information
available in June 2019 (i.e., the first two models) was sufficient to
conduct a jeopardy analysis without delaying the consultation further
until the third model (the take model) was available. NMFS was also
concerned that a third model could compound the error inherent in the
PVA, discounting the importance of the injury and death of individual
turtles at ages younger than adults and give the false appearance of
precision around the model estimates.
Contrary to the commenter's suggestion, NMFS did not ``fail'' to
develop the third model. The third model was ultimately developed and
produced nine months later. It was peer reviewed and it supported the
``no jeopardy'' conclusions in the biological opinion. Further, the
model was deemed the ``best available science'' by the Council's
Scientific and Statistical Committee (SSC) although their role was to
look at its usefulness under the Magnuson Act as opposed to the
Endangered Species Act.
The PVA model in question relies solely on trends in annual nest
counts from a subset of beaches considered representative for each
species (leatherbacks and loggerheads). Nest counts are then converted
to individual nesters and these numbers are used to predict trends in
the populations. The NRC notes that methods based on reproductive value
(or adult equivalents), such as used in the PVA model, are best used
for relative comparisons within species to set priorities for research
or conservation effort, rather than attempts at quantitative assessment
of threats or setting take limits, as this could `discount' takes of
some turtles.
Development of the first two models took about nine months to
complete, and consultation was initiated after the completion of the
first model. Consultation timelines were running while the second (PVA)
model was in development. The consultation was extended more than six
months to allow completion of the second model. Based on the data and
models available at the time, NMFS was able to conclude its
consultation without waiting a further nine months on the third model.
The commenter's claim regarding TIRN v. NMFS is also in error.
Contrary to the comment, NMFS did not merely employ the same analytical
method as addressed in TIRN v. NMFS. The analytical method the
commenter refers to describes the proportion of the adult population
and total population that the fishery is expected to kill at benchmark
intervals. Instead, when developing the BiOp on the shallow-set
longline fishery, NMFS analyzed the effect of the action on several
demographically important subsets of the total population: The adult
population, the portion of the adult population represented by females
only, the proportion of the population represented by unique life
history types (summer nesters, summer nester adults and summer nester
females), and the potential to disproportionately affect a
subpopulation or breeding aggregation (e.g., Ryuku loggerhead sea
turtles).
Importantly, NMFS evaluated these effects under four scenarios: The
current population size, and three different future population numbers
(50, 25, and 12.5 percent of the current population size). This was
done to ensure that all impacts considered in the Status of the
Species, Baseline and Cumulative
[[Page 57990]]
Effects sections, including other federally authorized fisheries and
foreign fisheries, were appropriately factored into the evaluation. In
other words, consistent with the ESA implementing regulations and the
approach to the assessment as described in the BiOp, NMFS examined the
effect of the action on numbers (e.g., total abundance, numbers of
adults, numbers of females), reproduction (e.g., numbers of females and
reproductive adults), and distribution (e.g., subpopulations and unique
life histories) over a 40-year time horizon (under the assumption of
continued degradation of the baseline conditions) and each of these
analyses led us to conclude that the small number of animals that would
be taken by the shallow-set longline fishery would not, directly or
indirectly, reduce appreciably the likelihood of both the survival and
recovery of any listed species in the wild by reducing the
reproduction, numbers or distribution of that species. This analysis
did not discount or remove some of the animals from its assessment
because they were suspected of being juveniles or sub-adults that would
be unlikely to survive to reproduction (adult nester equivalents).
Because there is no reliable known size threshold for an adult, and we
do not know that age and stage survival rates would apply to a subset
of the population that is affected by the fishery, and we do not know
age and stage survival rates for loggerhead and leatherback sea
turtles, the BiOp assumed that each individual turtle that the fishery
interacts with has the same chance of reaching its full reproductive
potential as the next. In other words, juvenile sea turtles were not
considered less important than an adult and the interaction with
animals suspected of being in the juvenile age-class were not
discounted in the BiOp.
The commenter also points to the Ninth Circuit's dicta regarding
``baseline jeopardy.'' NMFS believes that the Court's use of this term
misconstrues the analytical standard that must be applied for a valid
Section 7 analysis. To determine whether an action will jeopardize the
continued existence of a species, NMFS must assess the effects of a
Federal agency action by adding those effects to the environmental
baseline. Jeopardy occurs when the effects of the action together with
the environmental baseline show that the action appreciably reduces the
species' likelihood of survival or recovery. The ESA does not recognize
a species' status as being in a pre-determined condition of jeopardy.
As NMFS explained in the proposed (83 FR 35178, July 25, 2018) and
final (84 FR 44976, August 27, 2019) Section 7 rules, the ESA does not
recognize a baseline state of jeopardy. Rather, the ESA is concerned
with the action's effects, and whether those effects appreciably reduce
the likelihood of the species' survival or recovery in the wild.
While our PVA illustrates that long-term persistence of the
leatherback sea turtle is precarious, the proper inquiry is whether the
action causes new harm that is consequential to the species' viability.
Minor impacts to the species' pre-action condition are not jeopardizing
if they do not result in consequential reductions in numbers,
reproduction, or distribution at the species level. NMFS too is
concerned with the long-term status of the leatherback sea turtle.
However, to complete its evaluation of the action under ESA Section 7,
NMFS appropriately relied upon its understanding of ecological theory
and experience with population growth or decline, which is captured by
the fundamental equation: Nt = N0 + (Births +
Immigration)-(Deaths + Emigration).
Every population model derives from this equation (the ``BIDE''
equation). The BIDE equation reveals the error in asserting that the
added loss of a few individuals from a population that exhibits a
declining trend necessarily ``jeopardizes'' the continued existence of
a population or species. A declining trend means that the ratio between
Nt and N0 is less than 1.0 (or substantially less
than 1.0, if we consider year-to-year variation). However, a population
experiencing such a decline still has births and, in some cases,
immigration. To illustrate, a small number of deaths would not alter
the trajectory of even a declining population if the number of births
exceeds the number of deaths in the same time interval (or if
recruitment into a life history stage exceeds the number of deaths in
that stage). The implication of the BIDE equation is that even if
``tipping points'' are nominally identified and quasi-extinction
thresholds (QETs) estimated, factors that influence productivity
outside of our knowledge and control can shift abundance upward, making
both constructs invalid.
NMFS analyses were complete given the available data, and NMFS
correctly analyzed the effects of the action on the species' viability.
Because of its concerns about the paucity of data, NMFS examined
several reasonable step-down scenarios relative to the numbers,
distribution, and reproduction of the species. NMFS remains confident
in its conclusion that the small number of mortalities, even for the
leatherback sea turtle and even though there is a measurable reduction
in numbers associated with the proposed action, would not appreciably
reduce the species' likelihood of survival or recovery.
This conclusion is borne out in the third model (the take portion
of the PVA model), which the commenter references. Although the take
model was not available when the BiOp issued, subsequent analysis using
the model confirms the BiOp's conclusions that the action is not
expected to directly or indirectly reduce appreciably the likelihood of
either the survival or recovery of leatherback or loggerhead sea
turtles in the wild. In other words, the likelihood of survival and
recovery remains relatively constant with or without the action.
Although the take model suggests that there is a difference between
the ``no take (PVA)'' model and the ``take'' model for leatherbacks,
the modeled differences are not detectable for roughly 40 years (to
2060). The difference predicted by the third model is not discernable
at the point when the leatherback population reaches half its current
abundance, though there is a minor observed difference as the
population gets smaller (0.01 percent difference when the leatherback
sea turtles population reaches 25 percent or 12.5 percent of its
current size) and time considered is lengthened. We stress the point
that the farther out the projection, the more uncertainty we have
around the estimates, and that this model and the analysis in our BiOp
applies as a protective assumption, a consistent annual amount of take
even though, as the population declines over time, the likelihood of
take of individuals also declines. In other words, limitations in our
predictive capabilities and changes in future management regimes would
render predictions over a longer period increasingly speculative. This
is true not only for the PVA with take and without take, but is also
true of the analysis we did for the BiOp. Shorter term estimates (e.g.,
10 years) are expected to provide more accurate predictions of the
effect of the action, but estimates at a longer time interval are more
uncertain. In addition, an underlying caveat or assumption of the model
and the analysis in the BiOp is that as the population continues to
decline (50 percent, 25 percent, and 12.5 percent of current size) the
actual number of animals taken in the fishery would not change. This
assumption is considered protective of the species, but highly unlikely
to be true over an extended time. For example, at the prediction point
approximately 40 years in the
[[Page 57991]]
future (2060), when the potential impacts of the shallow-set longline
fishery appear to be detected for leatherbacks, the mean number of
nesting females in the absence of the shallow-set longline fishery is
predicted to be 24, and the continued fishery take of up to two adult
female per year therefore becomes detectable. However, as the
population declines and a species becomes rarer, we would generally
expect that the rate of interaction (take) would also tend to decline.
Since we do not know how ``rareness'' would affect future interaction
rates, we opted to assume that interactions would remain constant over
time for the purposes of our jeopardy analysis. This assumption alone
would tend to cause longer term evaluations to be less reliable, and
would warrant careful consideration of perceived mathematical
differences in predicted impacts resulting from the action. To
highlight this point, the ``take'' PVA model predicts that the
leatherback population will become extinct 5 years earlier than the
``non-take'' model. However, in the year when the mean ``take'' model
predicts extinction, the number of nesting females remaining in the
``no-take'' model is one nesting female. Logically, maintaining the
unrealistic same level of take at this point makes the population
appear to reach extinction levels 5 years sooner under the ``take''
model, when this is really just a result of our assumption of constant
fishery interaction numbers. There was no discernible difference at all
for loggerheads between the ``no take (PVA)'' model and the ``take''
model.
Both approaches, the analytical approach taken in the BiOp, and the
take/no take model completed nine months after the BiOp have the same
basic structural limitations. The primary limitation stems from the
ability to reliably predict population growth (or decline) and changes
in demographics, which are critical to understand species' extinction
risk. Both assessment methods are reliant upon female nester abundance
predictions from nest counts. Because these data represent a very small
fraction of the total population, and little is known about males,
juveniles, or population specific demographics, conclusions drawn about
the species from these data are likely to be inaccurate. Thus, NMFS
took steps in the consultation and the BiOp to develop a thoughtful and
appropriately precautionary analytical approach that would not
disadvantage the species. NMFS considers the approach in the BiOp to
have certain advantages as an assessment tool because it recognized the
importance of unique life histories and the role of small
subpopulations (independent demographic units). Nevertheless, both the
third NMFS model (take model) and the analysis contained in the BiOp
support the same conclusion that the proposed action would not directly
or indirectly reduce appreciably the likelihood of both the survival
and recovery of any listed species in the wild by reducing the
reproduction, numbers or distribution of that species.
Comment 2: The de-lifing approach was improperly applied
prospectively across multiple generations, and erroneously assumed a 6
percent generational decline for leatherbacks rather than a 6 percent
annual decline.
Response: As defined by Coulson et al. (2006), de-lifing is a
retrospective analysis that address questions in evolutionary ecology
by identifying an individual's observed contributions to the mean
fitness of a population in a given year (as opposed to an entire
generation). Upon careful reconsideration, we agree that we erred in
our application of the de-lifing approach, and therefore cannot rely
upon this analytical method as described in the BiOp. Specifically, the
approach was improperly applied prospectively across multiple
generations, and contained a mathematical error. However, the de-lifing
analysis was not an essential component in reaching the no-jeopardy
conclusion for leatherbacks. Our BiOp examined the effect of the action
on several reasonable and demographically important units, as described
above, including females, summer nesters, small subpopulations, and at
reduced population sizes. Based on the multiple analytical evaluations,
and the recently published model, the action did not materially change
the species' pre-action condition--not its reproduction, numbers, or
distribution--and did not hasten the species' decline.
Comment 3: By failing to calculate the species' tipping point or
QET, the agency failed to adequately examine the action's impacts on
recovery.
Response: The commenter asserts that the failure to calculate a
tipping point is relevant to the action's impact on recovery. First, a
tipping point is not a scientific construct; it is a term that embodies
a general concept that beyond a certain threshold, large uncontrolled
shifts in ecology will occur. Second, the tipping point concept does
not have bona fide relevance to conservation or recovery within the
ESA, as is specifically noted in the recent regulations for Interagency
Cooperation under the ESA (84 FR 44976, August 27, 2019). As explained
in the BiOp, tipping points (and QETs) are theoretical constructs that
the commenter suggests serve to identify a defined level beyond which
imperiled populations cannot be expected to recover. It is technically
impossible to know, in advance, where the ``tipping point'' that
forecloses recovery might lie for free-ranging plants and animals (and
even animals in captivity). Similarly, QETs are arbitrary thresholds
used in population ecology to identify some non-zero point below which
population abundance might fall, and the probability of falling below
that non-zero threshold. Importantly, QETs, like tipping points, are
only theoretical methods to evaluate extinction, they are not
determinative, and while potentially helpful in assessing jeopardy risk
relative to survival under the ESA, they are not relevant to the
separate assessment of recovery. In a logical analysis, the effect of a
proposed action on the potential for recovery is appropriate when the
first analysis for jeopardy concludes with ``does not reduce the
likelihood of survival;'' As the recovery standard is a level of
abundance and reproduction that allows a species to be self-sustaining
in the wild without the protections of the ESA, QETs and tipping points
are not pertinent to that portion of the analysis.
In the BiOp, we estimated the probability that that species would
become extinct over time, but we do not have predefined thresholds or
decision rules as to what point within that probability a ``jeopardy
threshold'' is reached for each species. NMFS has explored the use of
quantitative thresholds in listing, in particular, and several such
extinction thresholds have been suggested for more than 20 years. The
same premise could apply to ``jeopardy'' evaluations relative to
``survival'' and ``recovery,'' yet the agency has declined to predefine
policy thresholds for its ESA decisions because such predefined
decision rules in data deficient situations would have to be
established as general guidelines or rules, and would be arbitrary for
most species. No set of decision rules can compensate for information
gaps, particularly when trends are poorly known and demographic data
are absent. Moreover, in many cases establishing population level
thresholds would overshadow understanding and evaluating the threats on
the underlying independent demographic units that comprise the listed
species.
Our assessment approach in the BiOp recognizes that a species' risk
of extinction is affected by the strength or weakness of the
populations or independent demographic units that
[[Page 57992]]
comprise that species. Producing an assessment approach that relies
solely on quantifiable metrics at the species level would fail to
account for the important role that the underlying independent
demographic units play in the species' risk of extinction, particularly
where there is insufficient information to adequately develop a
credible quantifiable metric.
Early work on PVA and population ecology did include efforts to
define minimum viable populations, defined as the smallest number of
individuals required for a population to persist at some predefined
probability of time. This led to the development of the 50/500 rule in
conservation management, which simply states to avoid inbreeding
depression (loss of fitness due to genetic problems), an effective
population size of at least 50 individuals is necessary. To ensure that
the population can maintain its evolutionary potential to cope with
environmental change at least 500 individuals are necessary. Following
this line of thinking, 50 individuals might be a survival threshold and
500 individuals might be best considered the minimum number necessary
to ensure recovery. However, almost 40 years have passed since these
concepts were introduced into the field of conservation biology. We now
know that these arbitrary thresholds are not broadly useful, because
species differ in their needs, reproductive strategies, age at
fecundity, et cetera. As discussed at length in the BiOp, some species
can dip well below 500 and be recoverable, and many survive after
dropping to numbers below 50.
Common tipping point metrics, or QETs, that are often used in PVAs
and many scientific analyses include several of the same metrics we
used in the development of our PVA for loggerhead and leatherback
turtles, and in our ``jeopardy'' evaluation (e.g., mean and median
times until each species declines to 50 percent, 25 percent, and 12.5
percent of current abundance estimates, probability of each species
reaching those thresholds in 5, 10, 25, 50, and 100-year time intervals
with associated 95 percent confidence intervals). We used these metrics
to characterize the current viability of loggerhead and leatherback sea
turtles but these predictions, at the species level, did not help
characterize the status of the independent demographic units that
comprise each species over time. Demographically-independent units
(populations, subpopulations, demes, etc.) that comprise each listed
species are important to understanding the species' chances for both
survival and recovery. The structure and performance of the two species
as they have been listed, the sub-populations that comprise these
species, the populations that comprise the various sub-populations, and
the demes that comprise those sub-populations are addressed in our
consultation using both quantitative and qualitative means, and it is
in this combined approach we evaluated the impact of the action on the
species' chance of both survival and recovery.
As noted in the NRC 2010 report, reference points are used in
fisheries management to demark levels of overfishing and the level of
stock abundance that results in sustainable populations, however, such
analyses require long time series of data and detailed information on a
population's demographic rates. Without such demography there is no way
to predict the effects of fishery bycatch, especially for animals as
long-lived as sea turtles. The NRC also notes that methods based on
reproductive value (or adult equivalents), such as used in the PVA
``take'' model, are best used only for relative comparisons within
species to set priorities for research or conservation effort, rather
than attempts at quantitative assessment of threats or setting take
limits.
While research has been done on identifying ``tipping points'' in
species abundance trends, these have primarily been either theoretical
in nature, using laboratory studies of fruit flies in which 20 or more
generations of data are available for analysis, or are retroactive
studies in which patterns are only realized after they have happened.
The generation time for leatherback sea turtles is approximately 22
years assuming age at maturity is 16 years and annual adult survival
rate is 0.89. The longest time series available for the PVA was 17
years; hence, identifying tipping points from a time series of
abundance of less than one generation is not feasible, would not be a
reliable metric, and would not be a relevant metric for the recovery
component of the jeopardy analysis.
Comment 4: The proposed individual vessel limits are too high to
effectively reduce endangered sea turtle interactions and mortalities
as required by Reasonable and Prudent Measure 1 of the ITS in the BiOp.
Further, this measure undermines the entire regulatory scheme by
allowing a few bad actors to single-handedly exacerbate the likelihood
of sea turtle extinction.
Response: This final rule establishes individual trip limits of
five loggerhead and two leatherback turtles, as required by terms and
conditions of the BiOp, which apply to every vessel in the shallow-set
longline fishery. If a vessel reaches either limit, NMFS will require
that vessel stop fishing and return to port, and that vessel will be
prohibited from shallow-set fishing for 5 days. This provides a 7-10
day cooling-off period given the distance between fishing grounds and
ports in Hawaii and California. The cooling-off period may allow the
environmental conditions contributing to the high interactions to
dissipate and reduce the likelihood of additional interactions in that
area in subsequent trips. If a vessel reaches a trip limit twice in a
calendar year, NMFS will prohibit that vessel from shallow-set fishing
for the remainder of the calendar year. In the following calendar year,
that vessel will have a vessel limit of five loggerhead or two
leatherback turtles).
The Council's recommendation to specify a loggerhead trip limit of
five was based on the finding that it would provide the most meaningful
reduction in interactions in years with high interaction rates, such as
those observed in 2017-2018. Observed sea turtle interaction data since
2004 indicate that most shallow-set longline trips with loggerhead
turtle interactions have one-two interactions per trip, with a small
proportion of trips having four or more interactions coinciding with
years with the highest total fleet-wide interactions. The NMFS Pacific
Islands Fisheries Science Center (PIFSC) simulated different levels of
trip limits, ranging from two-five, to past observed interactions.
Based on these simulations, a limit of five loggerhead turtles per trip
would have reduced loggerhead turtle interactions in 2018 by 30
percent, even without accounting for avoidance behavior by the vessels.
The Council, therefore, determined that the loggerhead trip limit of
five would provide a mechanism for response to higher interaction
rates, and minimize further interactions when such higher interaction
rates are detected while helping to ensure year-round supply of
swordfish to meet domestic demand. Note the leatherback trip limit is a
complement to, and not a replacement of the fishery's hard cap of 16
leatherback turtles, and also serves as preventative measure if higher
interaction rates are observed in the future, and may reduce the
likelihood of reaching the hard cap if vessels are able to avoid a
second interaction after encountering the first leatherback on a given
trip.
Individual trip limits are expected to provide early detection to
higher interaction rates that may indicate a potential for higher
impacts to sea turtle populations in a given year, and are
[[Page 57993]]
expected to reduce loggerhead and leatherback turtle interactions in
such years. Individual trip limits are intended to mitigate a large
proportion of loggerhead and leatherback turtle interactions from
occurring in a single trip. Observed sea turtle interaction data since
2004 indicate that trips with loggerhead turtle interactions typically
have one-two interactions per trip in years with low fleet-wide
loggerhead turtle interactions. Conversely, trips with three or more
loggerhead turtle interactions have been observed in years with high
fleet-wide interactions. In 2018, when the highest number of loggerhead
turtle interactions was observed, 16 percent of the trips contributed
to 58 percent of the total fleet-wide interactions. Monitoring the
number of loggerhead turtle interactions per trip would provide an
early detection mechanism for higher fleet-wide interactions, and the
individual trip limit is expected to provide a ``dampening'' response
by minimizing further interactions on those trips.
Individual trip limits also provide an individual vessel incentive
to avoid sea turtle interactions because shallow-set vessels may fish
500-1,000 nm from port and require considerable up-front costs for each
trip, and thus a shortened trip duration may result in net loss for
that trip. Given the economic disincentive of reaching the trip limit,
vessel operators are more likely to employ additional avoidance
strategies if they encounter multiple interactions in a trip, such as
moving away from the area and avoiding areas with higher potential for
interactions using information from the NMFS TurtleWatch program. If a
vessel reaches a trip limit once, that vessel is more likely to avoid
fishing in the same area as the previous trip and employ additional
avoidance strategies to prevent further economic loss. Thus,
conservation benefits are expected even before the individual trip
limit is triggered. Because reaching a trip limit twice in a calendar
year would result in that vessel being prohibited from fishing for the
remainder of the year, there is a direct disincentive to continue
fishing practices that might result in additional interactions.
Additionally, the return to port requirement serves as an
additional deterrent to reaching a vessel limit due to the distance
between fishing grounds and ports in Honolulu and California where
shallow-set vessels land their catch. The travel distance from port to
the areas where the shallow-set vessels typically operate is at least
2-3 days and may take as long as 5-6 days one-way. If a vessel reaches
a trip limit, the travel time back to port, time in port, and travel
time to return to fishing grounds would result in a minimum of 7-10 day
days of no fishing. This time lag between the last set on the trip in
which a vessel reaches a trip limit and the first set on the subsequent
trip also provides a cooling-off period that allows for the conditions
contributing to the high interactions to dissipate and reduces the
likelihood of additional interactions in that area in subsequent trips.
The trip limit also places the accountability of interactions on
individual vessels and ensures that the consequence burden remains with
the vessel that reaches the individual trip limit.
The Council considered the individual vessel limit, as a standalone
measure, to be punitive by discouraging participation in the fishery,
and thus inconsistent with the purpose and need of the action to help
ensure year-round fishing operations and a continued supply of fresh
swordfish to U.S. markets.
Comment 5: One hundred percent observer coverage is necessary to
enforce interaction limits.
Response: NMFS currently places at-sea observers on 100 percent of
shallow-set longline trips, and this action does not change this.
Current NMFS observer data-collection protocols instruct observers to
report sea turtle interactions using a satellite phone after each
observation, which are used to monitor interaction limits. However,
NMFS routinely uses statistical modeling as a proven and reliable
method for estimating observer coverage necessary to meet management
and monitoring objectives, including coverage to monitor for protected
species interactions. NMFS will also continue to explore other tools,
such as electronic monitoring, to meet monitoring program objectives.
Comment 6: Continued operation of the Hawaii-based shallow-set
longline fishery will adversely affect leatherbacks by jeopardizing the
species in violation of the ESA and, therefore, NMFS does not have a
valid basis to issue a finding of no significant impact, and an
environmental impact statement must be prepared to evaluate the
significant effects of the fishery on protected species.
Response: NMFS finds that the continued operation of the shallow-
set fishery will not adversely affect the leatherback turtle by causing
jeopardy to the species, and NMFS is not in violation of the ESA. Under
the ESA, NMFS may authorize the fishery to interact with protected
species that would otherwise be prohibited, if conducted pursuant to a
lawful activity, and if conducted in accordance with the terms and
conditions of a no-jeopardy BiOp and ITS. The BiOp concluded the
continued operation of the shallow-set fishery is not likely to
jeopardize the continued existence of the leatherback turtle, and
analyzed up to 21 interactions (3 mortalities) annually when making
this determination. Reasonable and Prudent Measure 1 Term and Condition
1a further limits the fishery to 16 interactions annually which
represents an approximate 25 percent reduction in the number of turtles
from the predicted interaction numbers in this BiOp. If the fishery
reaches this limit, the terms and conditions require that NMFS shall
close the fishery for the remainder of the calendar year. The hard cap
limit, trip limits, and additional accountability measures specified in
this rule are consistent with the Reasonable and Prudent Measures and
Terms and Conditions contained in the BiOp.
As described in the response to Comment 1, our analysis is further
supported by the PIFSC PVA take model to assess the population level
impacts of post-interaction mortality of loggerhead and leatherback
turtle interactions in the shallow-set fishery (Martin et al. 2020).
The model builds upon the PVA considered in the BiOp. Data for the
North Pacific loggerhead came from three index beaches in Yakushima,
Japan (Inakahama, Maehama, Yotsusehama), which represents 52 percent of
the overall population; and data for the western Pacific leatherback
population came from two index beaches in Indonesia (Jamursa, Medi, and
Wermon), which represent approximately 75 percent of the overall
population. These nest counts represent the best scientific and
commercial data available for these species. Furthermore, the model is
considered to be conservative because the full anticipated take is only
applied to the index beaches (approximately 52 percent of the North
Pacific loggerhead population and 75 percent of the Western Pacific
leatherback population).
For each species, the modeling framework shows the probability of
the population being above or below abundance thresholds (50 percent,
25 percent, 12.5 percent of current annual nesters) within a 100-year
simulation time frame, and the number of years (mean, median, and 95
percent credible interval) to reach each threshold for both ``take''
and ``no take'' scenarios (i.e., the population trends with and without
the take associated with the fishery). The take level evaluated in the
model was derived from predictions generated by PIFSC using a Bayesian
[[Page 57994]]
inferential approach (McCracken 2018) and analyzed in the BiOp. Results
for both species suggest that the fishery's anticipated take to be
negligible on the long-term population trends, with no discernable
changes to the probabilities of the populations falling below abundance
thresholds between the ``no take'' and ``take'' scenarios for the
future (Martin et al. 2020). For the leatherback turtle, the difference
in the population trend only becomes apparent after the year 2060 and
suggests the population would go extinct roughly 5 years sooner than in
the ``no take'' scenario (around Year 2110 vs. 2115). However, this 5-
year difference is inconsequential, and the actual population
difference of the 5 year divergence represents less than one adult
nester. Importantly, the difference seen between the ``no take'' and
``take'' scenarios in the 100-year projection is not seen in the 10-
year projection (see Martin et al. (2020) Figs. 22 and 23).
As described in the EA and Martin et al. (2020), projections out to
10 years into the future are more relevant biologically for management
purposes than to 100 years given the estimated uncertainty in the
population parameters. Specifically, the effects of the environmental
or anthropogenic drivers on the population would be lagged; therefore,
we think the first 10 years is largely based on the previously observed
trend but after that we do not have sufficient information to account
for uncertainty of the drivers that affect the populations.
Additionally, we analyzed the trend with historical impacts from the
fishery removed (i.e., by adding back the adult nesters to the
population); however, there was no difference between the trends for
the ``take'' and ``no take'' scenarios for either species for the past.
In summary, while NMFS conservatively estimates the removal of up
to three leatherbacks annually by the fishery, this level of take is
not expected to have any consequential impacts in terms of reductions
in numbers, reproduction, or distribution at the species level.
Rigorous terms and conditions that include annual hard caps for
leatherbacks and individual trip limits for sea turtle species help
ensure that the fishery's already minor impacts are further mitigated.
Moreover, NMFS previously completed a comprehensive Environmental
Impact Statement on the shallow-set longline fishery in 2008. This
action modifies the prior action by implementing new terms and
conditions to mitigate impacts to leatherbacks and loggerheads.
Accordingly, NMFS properly concluded that an environmental impact
statement was not required.
Comment 7: The draft EA is deficient because it does not examine a
reasonable range of alternatives. The National Environmental Policy Act
(NEPA) requires Federal agencies to ``study, develop, and describe
appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources. Most noticeably, none of the alternatives
examined would allow a single ``maximum take'' trip per year, and
another feasible but unexplored alternative is prohibiting fishing in
the thermal band between 17.0 and 18.5 degrees Celsius that is
preferred habitat for both loggerhead and leatherback sea turtles.
Response: NMFS and the Council complied with all procedures and
requirements under NEPA when developing Amendment 10 and this final
rule. As described in Section 1.1.2, section 2.1, section 2.3, and
Appendix A of the EA, the Council considered a reasonable range of
options for managing the loggerhead and leatherback turtle interactions
in the shallow-set fishery, including single year hard caps, multi-year
hard caps, and removal of hard caps altogether, individual vessel
limits as a stand-alone measure, in-season measures (e.g., trip limits
and in-season temporary closures), spatial and temporal measures to
manage interaction hotspots and non-regulatory measures (e.g.,
improvements to fleet communication, industry-led initiatives, and
furthering research to minimize trailing gear).
In developing these alternatives, the Council considered the
following information: Fisheries observer data for loggerhead and
leatherback sea turtle interactions since 2004, effort and economic
performance trends of the fishery since 2004, population assessments
for the North Pacific loggerhead and western Pacific leatherback turtle
populations, the BiOp for the shallow-set fishery, the recent
characteristics of loggerhead turtle interaction patterns since 2017,
the effectiveness of existing mitigation measures such as circle hooks
and mackerel-type bait, potential development of industry initiative
for a sea turtle avoidance program, impacts of the hard cap closures on
fishery performance, and the 9th Circuit Court decision and settlement
agreement (Turtle Island Restoration Network et al. v. NMFS; Civil No.
1:12-cv-594-SOM-RLP).
Upon consideration of the broad range of potential management
options and available information, and consistent with the action's
Purpose and Need, the Council identified individual trip limits as the
most practicable and appropriate measure in developing a more
responsive management approach that would further minimize impacts to
sea turtles while helping to ensure the year-round fishery operations
and supply of fresh swordfish to meet market demands. As described in
Section 2.3 of the EA, the Council rejected other measures that did not
meet the purpose and need, were not practicable, were not necessary or
appropriate, or lacked sufficient data to evaluate effectiveness. The
measures rejected by the Council include individual vessel limits as a
stand-alone measure, real-time spatial management measures, and time-
area closures, which are substantially similar to the alternatives
identified by the commenter.
Specifically, the Council rejected individual vessel limits as a
stand-alone measure because prohibiting vessels from fishing shallow-
set for the remainder of the calendar year if vessels reached the
established per-vessel limit would not result in meaningful
conservation gains compared to the individual trip limits, as the best
available information indicate that the likelihood of vessels having
multiple trips with high number of turtle interactions in a given year
is very low, and individual trip limits are expected to be just as
effective in responding to the rapid accumulation of sea turtle
interactions as individual vessel limits. The Council also found that
individual vessel limits would discourage vessels from participating in
the shallow-set sector of the Hawaii longline fishery as the
consequence of reaching an individual vessel limit (prohibition from
fishing shallow-set gear for the remainder of the year) is expected to
act as a disincentive for entering the fishery, and thus would be
inconsistent with the purpose and need of the action.
The Council also explored but rejected real-time spatial management
measures and time-area closures that included consideration of the
TurtleWatch thermal band for loggerhead and leatherback turtles. The
Council found that there are insufficient data to conclude that actions
to disperse fishing effort from a particular location will positively
impact sea turtle conservation. For example, the original TurtleWatch
temperature band between 17.5 and 18.5 degree Celsius is intended to
encompass approximately 50 percent of the loggerhead turtle
interactions, indicating that avoiding effort in that band would shift
effort into areas where the remaining interactions have been
[[Page 57995]]
historically observed. The thermal band identified by TurtleWatch also
overlap with productive swordfish fishing grounds during the peak
fishing season, and thus prohibiting fishing in such thermal band would
likely discourage vessels from shallow-set fishing. Additionally,
prohibiting fishing in a non-static thermal band that shifts daily is
impractical from both a management and enforcement standpoint, and
presents significant challenges in terms of providing fishermen with
timely notice.
Following the issuance of the 2019 BiOp, the Council further
considered modifying its recommended management action for consistency
with the Reasonable and Prudent Measures therein. The alternatives
analyzed in the EA represent the final range of alternatives that the
Council considered at its 179th Meeting and is a reasonable range based
on the purpose and need of the action, history of the development of
alternatives, and the need to incorporate the Reasonable and Prudent
Measures as part of the Council action.
Comment 8: The Hawaii Longline Association (HLA) supports NMFS and
the Council's proposal to eliminate the existing hard cap for
loggerhead sea turtles, and although HLA does not actively oppose NMFS
and the Council's proposed implementation of a hard cap for leatherback
sea turtles, HLA believes it to be unnecessary.
Response: Regarding the loggerhead turtle, NMFS agrees. The annual
hard cap was first implemented as a measure to control sea turtle
interactions on the model shallow-set longline fishery while NMFS
gathered information on the effectiveness of using circle hooks and
mackerel-type bait in reducing sea turtle interactions in the fishery.
At the time, the best scientific information available indicated that
the North Pacific loggerhead turtle population was projected to decline
(NMFS 2004). The current best available scientific information
indicates that the North Pacific loggerhead population is increasing at
an average rate of 2.3 percent, and the total population estimated in
the 2019 BiOp is approximately 340,000 turtles. We note that nothing in
the ESA requires that fishery hard caps be used as a management tool,
and current information strongly suggests that other mitigation
measures, including individual trip limits, will be effective in
reducing impacts to loggerheads, while allowing for year-round fishing
opportunities.
In the absence of a hard cap for loggerhead turtles, the fishery
would still be constrained by the individual trip limit of five
loggerhead interactions as well as additional restrictions if the trip
limit were reached twice in a calendar year. Consistent with the
requirements of the ESA, NMFS would reinitiate consultation pursuant to
ESA Section 7 if the ITS for loggerhead turtles is exceeded.
Unlike the loggerhead turtle, the current best scientific
information available indicates that the western Pacific leatherback
population is decreasing at an average rate of -6.1 percent, and the
total population estimated in the BiOp is approximately 175,000
turtles. Although NMFS has determined the operation on the fishery is a
not likely to jeopardize the leatherback turtle, we have nevertheless
taken additional precautions to reduce the hard cap limit to 16, which
represents an approximate 25 percent reduction from the ITS, to
minimize the impacts, i.e., amount or extent, of incidental take.
Furthermore, this term and condition for Reasonable and Prudent Measure
1 set forth in the 2019 BiOp must be undertaken by NMFS for the
exemption in ESA section 7(o)(2) to apply to the shallow-set longline
fishery.
Comment 9: HLA supports the trip limits of five loggerhead and two
leatherback interactions per trip, but objects to the proposed vessel
limits that would apply in the subsequent year if a vessel reaches a
trip limit twice in a calendar year.
Response: A purpose of this action is to modify sea turtle
mitigation measures for effectively managing impacts to leatherback and
loggerhead sea turtles from the shallow-set fishery, consistent with
the requirements of the reasonable and prudent measures and terms and
conditions of the 2019 BiOp. Term and condition 1b states, ``. . . NMFS
shall require any vessel that reaches a trip limit for either species
twice in one calendar year to have an annual vessel limit of 2
leatherbacks or 5 loggerheads for the following year.'' As described in
response to Comment 6, these measures must be undertaken by NMFS for
the exemption in ESA section 7(o)(2) to apply.
Comment 10: The NMFS take estimates and, therefore, its proposed
mitigation measures, are based upon overly precautionary incidental
take estimates.
Response: For the purpose of ensuring that our analysis is
appropriately precautionary, we chose the 95 percent credible intervals
when estimating the take level. The 95 percent credible interval fully
represents the possible range of takes, and thereby ensures we are not
underestimating potential impacts to species over the full period of
the action. In terms of take, this means that there is a 95 percent
probability in any given year that the true number of animals captured
or killed is within the credible interval. While we agree that the
fishery is unlikely to capture animals at the 95 percent credible
interval year after year, the BiOp accounts for this and examines take
at both the 95 percent interval and mean in its analysis.
Comment 11: The PIFSC modeling analysis and report supports and
confirms the BiOp ``no-jeopardy'' conclusion and a determination that
the proposed action has no significant impact on the environment.
Response: NMFS agrees the PIFSC modeling analysis and report
supports and confirms the BiOp ``no-jeopardy'' conclusion and a
determination that the proposed action has no significant impact on the
loggerhead and leatherback sea turtles. See also Response to Comment 1.
Comment 12: Closures and reduced effort in the fishery result in
increased domestic reliance on foreign supply and increased adverse
impacts on sea turtles.
Response: Our environmental analysis acknowledges fishery closures
often result in shallow-set vessels converting to deep-setting gear to
target bigeye tuna and continue to fish under the Hawaii longline
limited entry permit. Additionally, in the absence of the swordfish
supply from the Hawaii shallow-set fishery, it is possible that fish
vendors could increase imports of foreign-caught swordfish to fill the
market gap in meeting the demand for swordfish in the U.S. (see Chan
and Pan 2016; Rausser et al. 2009). NMFS analyzed whether the
transferred effect should be treated as an indirect effect of the
fishery in the BiOp, and concluded the evidence available does not
indicate that the continued operation of the shallow-set fishery is
reasonably certain to cause a change in the number of sea turtles
captured and killed in foreign fisheries. As a result, we do not treat
the number of sea turtles captured and killed in foreign longline
fleets as an ``indirect effect'' of the proposed action. Instead, the
BiOp evaluates the effects of other fisheries, including foreign
fisheries, in the action area, on threatened and endangered species in
the environmental baseline section of the BiOp. Specifically, foreign
fisheries that occur in the action area are treated as ``other human
activities in the action area'' that may affect the status of listed
species in that action area. At a larger scale, the BiOp evaluated the
positive and negative past, present, and future
[[Page 57996]]
effects of those fisheries in the status of listed resources section to
the extent information was available.
Comment 13: Several commenters oppose the Council's recommendation
to remove the loggerhead hard cap.
Response: The ESA does not require NMFS to establish hard caps to
manage commercial fishery impacts to protected species. The hard caps
were first implemented in 2004 as a measure to control sea turtle
interactions on the model shallow-set longline fishery while
information was being gathered on the effectiveness of using circle
hooks and mackerel-type bait in the Hawaii fishery. At that time, the
best available scientific information indicated that the North Pacific
loggerhead turtle population was projected to decline (WPFMC 2004). The
current best available scientific information indicates that the North
Pacific loggerhead population is increasing at an average rate of 2.3
percent, and the total population is estimated at approximately 340,000
turtles (Martin et al. 2020).
The Council and NMFS examined the potential long term effects of
removing the hard cap as detailed in the EA. In the absence of a hard
cap, the shallow-set fishery is expected to have a long-term average of
15.6 loggerhead turtle interactions per year and a low probability
(less than 5 percent) of exceeding the ITS of 36 interactions in any
given year, based on the predicted distribution of the anticipated
level of loggerhead turtle interactions in the shallow-set fishery
(McCracken 2018). The probability of exceeding the ITS of 36 is based
on the upper range of the predicted distribution that estimated the
fishery to have equal to or less than 36 interactions in any given year
at the 95th percentile value. The predictions assumed that the fishery
operated throughout the year for every year included in the analysis
and did not truncate the predicted takes, thus providing a reasonable
prediction of future level of interactions in the absence of a hard cap
limit.
Under this final rule, if the fishery exceeds the loggerhead ITS of
36 in the BiOp, NMFS would reinitiate consultation pursuant to ESA
Section 7. While the ESA requires reinitiation of Section 7
consultation when an ITS is exceeded, it does not necessarily require
hard caps or other mechanisms to close the fishery. In this regard,
hard caps are only required if NMFS determines such measures are
necessary or appropriate to mitigate the amount or extent of take. In
the BiOp, NMFS determined that a leatherback hard cap was necessary and
appropriate to minimize impacts of incidental take and required that a
fleet-wide limit of 16 to be implemented under terms and conditions in
the BiOp, but did not find that a hard cap limit or other mechanisms
for closing the fishery for loggerhead turtle interactions was either
necessary or appropriate. However, the loggerhead hard cap would
continue to be available as a management tool under the Pelagic FEP
through future Council or NMFS action if necessary to conserve the
species.
Also under this final rule, vessels would still be constrained by
the individual trip limit of five loggerheads as well as additional
restrictions if the trip limit were reached twice in a calendar year.
The individual trip limit of five loggerhead turtle interactions per
trip would be expected to provide additional reductions and prevent the
fishery from approaching or reaching the ITS of 36, especially in years
with higher number of interactions are expected, although the extent of
reduction expected from the trip limits is uncertain due to the lack of
operational data.
Changes From the Proposed Rule
This final rule contains no changes from the proposed rule.
Classification
The Administrator, Pacific Islands Region, NMFS, determined that
Amendment 10 is necessary for the conservation and management of the
Hawaii shallow-set longline fishery and that it is consistent with the
Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. NMFS did not receive any
comments regarding this certification. As a result, a regulatory
flexibility analysis was not required, and none was prepared.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effectiveness, otherwise required by the Administrative
Procedure Act, because this rule would remove the current loggerhead
annual hard cap (17) that no longer conforms to the best available
scientific information in the current BiOp for the fishery. As
discussed above, the 2019 BiOp determined that given the current status
of the loggerhead and the implementation of the vessel trip limits, an
annual hard cap for the species was no longer necessary or appropriate.
As of September 8, 2020, the fishery has interacted with 13 loggerheads
in 2020, and therefore is at imminent risk of exceeding the current
loggerhead hard cap. Failure to implement this rule immediately would
likely result in the current loggerhead hard cap of 17 being exceeded
prior to peak swordfish season in October, triggering an unnecessary
and disruptive fishery closure that is not supported by the BSIA.
Accordingly, waiving the 30-day cooling off period is necessary to
bring the current regulations into compliance with the biological
opinion.
This final rule implements the reasonable and prudent measures, and
terms and conditions of the BiOp NMFS completed for the fishery. The
Council took final action to implement these terms and conditions in
August of 2019, following the release of the final BiOp in June of
2019. Subsequently, on January 23, 2020, NMFS published an NOA for this
action, including an EA, and request for public comments which ended
March 23, 2020. On February 4, 2020, NMFS published a proposed rule,
and that comment period ended on March 20, 2020.
Reasonable and prudent measures are actions that are necessary or
appropriate to minimize the impacts, i.e., amount or extent, of
incidental take of loggerhead and leatherback sea turtles in the Hawaii
shallow-set longline fishery. The associated terms and conditions set
out the specific methods by which the reasonable and prudent measures
are to be accomplished. Together, these measures must be implemented by
NMFS for the take exemption in ESA section 7(o)(2) to apply to the
Hawaii shallow-set longline fishery.
Since 2005, NMFS has required an annual hard cap for the fishery as
a measure to control sea turtle interactions on the model shallow-set
longline fishery while NMFS gathered information on the effectiveness
of using circle hooks and mackerel-type bait in reducing sea turtle
interactions in the fishery. The current loggerhead limit is 17.
However, in light of the current abundance and increasing trend of the
population, the individual vessel trip limit, and the accountability
measure for vessels that might reach a trip limit twice in a calendar
year, NMFS has determined that a hard cap is not necessary at this time
for the conservation of the North Pacific loggerhead turtle and
removing the limit would help ensure a continued supply of fresh
domestic swordfish to U.S. markets. While this rule would not
[[Page 57997]]
require an annual loggerhead hard cap, this measure would continue to
be available to NMFS and the Council as a management tool under the FEP
if necessary, to conserve the species.
Furthermore, this rule also reduces the leatherback hard cap limit
from 26 to 16, which represents an approximate 25 percent reduction
from the ITS, to minimize the impacts, i.e., amount or extent, of
incidental take. This term and condition for Reasonable and Prudent
Measure 1 in the 2019 BiOp must be immediately undertaken by NMFS for
the take exemption in ESA section 7(o)(2) to apply.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule is not an Executive Order 13771 regulatory action
because this rule is not significant under Executive Order 12866.
NMFS initiated formal ESA section 7 consultation for the continued
authorization of the fishery on April 20, 2018. In a BiOp dated June
26, 2019, the Regional Administrator determined that fishing activities
conducted under FEP and its implementing regulations are not likely to
jeopardize the continued existence of any endangered or threatened
species.
List of Subjects in 50 CFR Part 665
Hawaii, Leatherback sea turtle, Pelagic longline fishing, North
Pacific loggerhead sea turtle.
Dated: September 9, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 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. 665.813(b) and (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.
(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 (2) of this section.
* * * * *
[FR Doc. 2020-20304 Filed 9-16-20; 8:45 am]
BILLING CODE 3510-22-P