[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