Daily Rules, Proposed Rules, and Notices of the Federal Government
The Hawaii-based shallow-set pelagic longline fishery targets swordfish primarily on the high seas of the North Pacific Ocean. The Western Pacific Fishery Management Council (Council) and NMFS manage the fishery under the
The fishery occasionally and incidentally interacts with (hooks or entangles) protected species, primarily leatherback and North Pacific loggerhead sea turtles, but also other protected species. Consistent with the terms of a no-jeopardy 2004 NMFS biological opinion (2004 BiOp), the Council recommended and NMFS implemented a broad suite of sea turtle conservation and management measures for the fishery (69 FR 17329, April 2, 2004), including annual interaction limits for leatherback and loggerhead turtles. NMFS currently allows the fishery to interact with up to 16 leatherback and 17 loggerhead sea turtles per year; these limits directly manage the impacts of the fishery on sea turtles. If the shallow-set fishery reaches either limit, NMFS closes the fishery for the remainder of the year.
As required under section 7 of the Endangered Species Act (ESA), NMFS re-evaluated in 2012 the impacts of the continued operation of the fishery, as governed under the current suite of management measures (the proposed action), on marine species protected by the ESA (i.e., humpback whales, North Pacific loggerhead sea turtle distinct population segment (DPS), leatherback sea turtles, olive ridley sea turtles, and green sea turtles). NMFS concluded in a biological opinion dated January 30, 2012 (2012 BiOp), that the proposed action is not likely to jeopardize the continued existence of these five species, and is not likely to destroy or adversely modify designated critical habitat. The 2012 BiOp is an integral component to managing the shallow-set fishery, because the one-year incidental take statement (ITS, including reasonable and prudent management measures, and terms and conditions) forms the basis for regulations that specify the annual limits on leatherback and North Pacific loggerhead sea turtle interactions with the fishery that are necessary to manage the impacts of the fishery on sea turtles.
In this final rule, NMFS is revising the annual limits on incidental interactions that may occur between the fishery and leatherback and North Pacific loggerhead sea turtles to 26 and 34 interactions, respectively. If the fishery reaches either of the interaction limits in a given year, NMFS would close the fishery for the remainder of that year.
NMFS is also making minor housekeeping changes to the longline regulations for clarity and consistency in terminology. NMFS is revising references to the “shallow-set component of the longline fishery” to read more simply the “shallow-set longline fishery.” The sections of Title 50 of the Code of Federal Regulations that contain these changes include § 665.802 paragraphs (ss) and (tt), and § 665.813 paragraphs (b)(2)(i) and (b)(2)(ii), and paragraph (i).
On June 11, 2012, NMFS published a proposed rule and request for public comment (77 FR 34334). The comment period for the proposed rule ended on July 11, 2012. NMFS received approximately 2,270 comment submittals on the proposed rule. About 2,180 were form letters associated with a non-governmental organization. Representatives of the longline fishery and non-governmental organizations provided additional comments, along with several private citizens. NMFS responds to comments received, as follows:
The agency must ensure that any activity that it authorizes is not likely, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. To carry out this mandate, NMFS consults with the appropriate agency (either USFWS or NMFS) on any Federal action that it determines may affect ESA-listed marine species. If the agency concludes that the proposed action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat but, nonetheless, determines that the proposed action will result in the take of listed species, the agency must issue an ITS. The ITS establishes the allowable take of listed species that would otherwise be prohibited, and specifies those reasonable and prudent measures and terms and conditions that minimize the impact of such take.
In 2004, following a multi-year court-ordered closure, NMFS reopened the fishery under a suite of sea turtle mitigation requirements, including the use of large circle hooks and fish bait, a set certificate program limiting effort at 2,120 annual sets, and compliance with the ITS in a no-jeopardy 2004 BiOp. The 2004 BiOp also required annual limits on the allowable number of leatherback and loggerhead sea turtles hooked or entangled in longline fishing gear by the fishery, specified at 16 leatherback and 17 loggerhead sea turtles. If the fishery reached either limit, NMFS would close the fishery for the remainder of the year. The 2004 BiOp also required NMFS to place observers on 100 percent of shallow-set fishing trips.
In 2009, the Secretary of Commerce approved Amendment 18 to the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region. Amendment 18 removed the annual fishing effort limit and associated set certificate program to allow the fishery to achieve optimum yield of swordfish and other species, consistent with National Standard 1 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Optimum yield means the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. At the time of Amendment 18's approval, domestic and foreign swordfish landings in the North Pacific amounted to about 60 percent of an estimated maximum sustainable yield (MSY) of
In 2008, NMFS concluded in a biological opinion (2008 BiOp) that, among other things, Amendment 18 would not jeopardize the existence of any ESA-listed sea turtles, and included an ITS that allowed up to 16 leatherback and 46 loggerhead sea turtle interactions before NMFS would close the fishery for the remainder of the year. Following litigation over the 2008 BiOp with the Center for Biological Diversity, Turtle Island Restoration Network, and KAHEA: The Environmental Alliance, the ITS for leatherback and loggerhead sea turtles and that portion of the rule implementing the ITS were remanded to the agency and vacated. Under the terms of a consent decree, NMFS was to complete a new biological opinion on the fishery within 135 days of the USFWS-NMFS final decision on a petition to identify and list nine distinct population segments of loggerhead sea turtles. Consistent with the consent decree, NMFS issued the no-jeopardy 2012 BiOp, which evaluated the continued operation of the fishery under the management measures established by Amendment 18, with fishing effort at up to 5,500 sets annually and incorporated the best available scientific and commercial information. For example, NMFS used sea turtles interaction rates with the fishery obtained from 100 percent observer coverage from 2004-2011. In the 2012 BiOp, NMFS considered the effects of the action within the context of the “Status of Listed Species” together with the `Environmental Baseline' and the “Cumulative Effects” to determine whether the action is likely to jeopardize the continued existence of listed species, or result in the destruction or adverse modification of designated critical habitat. NMFS concluded that the proposed Federal action is not likely to jeopardize the continued existence of any of the five listed species in the action area, or destroy or adversely modify designated critical habitat. Accordingly, NMFS issued an ITS that, consistent with the expected level of take at 5,500 sets annually, allows interactions with up to 26 leatherback sea turtles and 34 North Pacific loggerhead sea turtles each year, along with reasonable and prudent measures designed to minimize the impact of fishery interactions.
With respect to leatherback sea turtles, the 2012 BiOp concluded that, “the incidental lethal (up to 4 nesting females annually) and non-lethal takes of leatherback sea turtles associated with the proposed action are not reasonably expected to cause an appreciable reduction in the likelihood of survival of the species.” While acknowledging the adverse effect of any level of take and morality, NMFS found that the expected level of take from the overall action, including a small number of mortalities, is extremely small when considered together with all impacts described in the Status of the Species, Environmental Baseline, and Cumulative Effects sections, including other federally-authorized U.S. fisheries and foreign fisheries. The 2012 BiOp further noted that, even with the expected loss of up to four females annually, “the affected population is expected to increase” and would “remain large enough to retain the potential to contribute to species recovery.” The BiOp noted that the “proposed action does not appreciably impede progress on carrying out any aspect of the recovery program or achieving the overall recovery strategy,” and that NMFS expects the “overall population to continue to grow and to maintain genetic heterogeneity, broad demographic representation, and successfully reproduce.” The biological opinion concluded that the proposed action would not affect the leatherbacks' “ability to meet their lifecycle requirements and to retain the potential for recovery.” Accordingly, the biological opinion concluded that the proposed action was “not reasonably expected to cause an appreciable reduction in the likelihood of survival or recovery of the species.”
With regard to North Pacific loggerhead sea turtles, NMFS concluded that, although the proposed action would result in the mortality of up to one nesting female annually, “this level of mortality would present negligible additional risk to the North Pacific DPS” and would “not prohibit the DPS from stabilizing or increasing, nor would it prohibit the DPS from reaching a biologically reasonable FENA (females estimated to nest annually) based on the goal of maintaining a stable population in perpetuity.” The biological opinion noted that, although the climate-based population viability assessment (PVA) model reveals a declining population over the next 25 years, “the population will remain large enough to retain the potential for recovery” and that the proposed action “does not appreciably impede progress on carrying out any aspect of the recovery program or achieving the overall recovery strategy.” In particular, NMFS expects that the overall population will remain “large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. The proposed action will have a small effect on the overall size of the population, and we do not expect it to affect the loggerheads' ability to meet their lifecycle requirements and to retain the potential for recovery.”
Accordingly, under this final rule, NMFS will revise the annual limits on incidental interactions with leatherback from 16 to 26 interactions and North Pacific loggerhead sea turtles from 17 to 34 interactions. If the fishery reaches either of the interaction limits in a given year, NMFS would close the fishery for the remainder of that year (as required by current regulations). The revised limits are consistent with the 2012 BiOp, and are necessary to manage the impacts of the fishery on sea turtles while affording the fishery the opportunity to achieve optimum yield.
NMFS is allowing the fishery to interact with leatherback and North Pacific loggerhead sea turtles consistent with the ESA. The sea turtle interaction limits under which the fishery currently operates are the product of a court-approved settlement, based on an eight-year old no-jeopardy biological opinion that analyzed the expected level of take resulting from a fishery capped at 2,120 annual sets. By contrast, the 2012 BiOp is based on the most current information available on sea turtle dynamics and demographics, and is supported by data from 100 percent observer coverage during 2004-2011 on the fishery's interactions, which NMFS used to analyze the effects of the fishery on sea turtle populations. In light of our improved understanding of sea turtle populations and the effectiveness of sea turtle mitigation measures in reducing both the frequency and severity of interactions in the fishery, NMFS appropriately authorized incidental take that exceeds the level (16 leatherbacks and 17 loggerheads) that was supported by judgments made in 2004, when the fishery was being reopened under an experimental regulatory regime that was untested in the Pacific where the fishery operates.
Finally, regarding compliance with the National Environmental Policy Act (NEPA), NMFS concluded that the action to revise the interaction limits for leatherback (to 26) and North Pacific loggerhead (to 34) sea turtles are within a range of interaction levels analyzed in
As discussed in the 2012 BiOp, the proposed action will not impede progress on carrying out any aspect of the recovery plans or achieving the overall recovery strategies. The proposed action will not affect the majority of the recovery criteria or the highest priority tasks. We expect the overall leatherback and North Pacific loggerhead sea turtle populations to continue to maintain genetic heterogeneity, broad demographic representation, and successfully reproduce. The proposed action will have a small effect on the overall size of the populations. Therefore, NMFS does not expect the lethal and non-lethal takes of leatherback and North Pacific loggerhead sea turtles to cause an appreciable reduction in the likelihood of both their survival and recovery in the wild.
The only ESA-listed seabird that has the potential to interact with the fishery is the short-tailed albatross. Observers have not recorded any short-tailed albatross interaction with the fishery since NMFS began monitoring the fishery with observers in 1994. On
Based on 100 percent observer coverage from 2004-2011, the 2012 BiOp found that actual interaction rates around Hawaii were lower for leatherbacks and loggerheads, compared to the Atlantic experiments from 2001-2003. Relying on observed sea turtle interaction rates from the Hawaii shallow-set fishery from 2004-2011, the 2012 BiOp multiplied the proposed action of 5,500 sets per year by the average observed interaction rates per set to determine the interaction limits of 26 and 34, for leatherbacks and North Pacific loggerheads, respectively. Using the best available scientific and commercial information, the 2012 BiOp similarly found that the continued operation of the fishery with 5,500 sets annually would not likely jeopardize the continued existence of any ESA-listed species in the wild.
In 2006, the fishery reached the interaction limit for loggerhead sea turtles and, in 2011, the fishery reached the limit for leatherback sea turtles. Both times, NMFS closed the fishery for the rest of the calendar year. For more information on annual sea turtle interactions in the shallow-set longline fishery, see the 2012 BiOp and
In 1992, the United Nations banned high seas drift gillnet fishing. Drift gillnets are not allowed in Federal waters around Hawaii or other U.S. Pacific Islands. The USA is a recognized leader in fisheries management worldwide and the Hawaii shallow-set longline fishery is among the most strictly regulated and sustainable suppliers of fresh seafood. NOAA's Office of Law Enforcement investigates potential violations of all applicable laws.
The fishery also will not likely affect monk seals. State of Hawaii and Federal laws protect sea turtles and monk seals; longline fishing is not allowed in nearshore waters around Hawaii, from the shoreline to about 25 to 75 nautical miles from shore.
With respect to the American Samoa longline fishery, NMFS considered, under a separate 2010 biological opinion, the impact of the American Samoa longline fishery on sea turtles. Since implementation of gear requirements to protect turtles, NMFS has not documented any additional sea turtle interactions in the American Samoa longline fishery. Although NMFS has taken action to mitigate the impact of the American Samoa longline fishery on sea turtles, we know of no requirement to demonstrate effectiveness of those measures prior to authorizing the continued operation of the Hawaii shallow-set fishery.
The climate-based PVA model, with results that differed from the classical PVA model, was more rigorous in applying data from the Pacific Decadal Oscillation (PDO) and, therefore, more useful to the analysis. According to Van Houtan (2011), the climate-based PVA model captures climate dynamics through two mechanisms: Juvenile recruitment and breeding remigration. This model recognizes that females do not breed annually; rather, breeding occurs when ocean conditions are sufficient for females to reproduce. In addition, juveniles are considered more susceptible to oceanographic variability as they have a limited ability to exploit their surroundings for food. Van Houtan and Halley (2011) concluded that loggerhead nesting varies synchronously within regions, suggesting that climate pressures operating over large geographic areas and time series account for periods of high and low abundance.
Considering the above, however, and given that a small number of sea turtle experts only recently developed the climate-based PVA model and that it uses a relatively short 25-year predictive period, we were cautious not to rely completely on any one model. NMFS chose to proceed carefully with a quantitative and qualitative empirical evaluation of the climate-based PVA model, along with inputs from multiple experts and sources. Based on this approach, we predicted an oscillating decline of the population below a 50-percent quasi-extinction threshold within one generation (25 years) due largely to climate-forcing factors. As noted in the 2012 BiOp, this threshold does not mean that the population will become functionally extinct; rather, it is an assumed fraction of the current population size (in this case, 50 percent) by which the population projections were modeled.
The fishery's impact, though detectable, would not appreciably reduce the likelihood of the North Pacific loggerhead's survival and recovery, in that the population would remain large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. In particular, with an adult female nesting population conservatively estimated at 7,100, the effect of the removal of one adult female under the proposed action (0.35 percent of the estimated total population over 25 years) would be insignificant, and that the additional risk to the DPS that would result from loss of one adult female annually is negligible. NMFS has no empirical basis with which to leave the current 16 leatherback and 17 loggerhead sea turtle incidental take levels in place.
The calculation of adult female equivalents was rounded to the nearest significant digit, which conservatively accounts for variation in percentage of adult female equivalents. The difference to the mortality estimate if we included four percent of adults (assuming 96 percent are juveniles) in our calculation would mean an additional 0.13 adult female equivalent, which when added to 0.43 would still round up to 1 adult female mortality annually. Therefore, this single adult female equivalent mortality per year is a precautionary estimate that accounts for variation in the model's underlying assumptions.
NMFS derived the post-interaction mortality rates used in the effects
However, given that the climate-based PVA model was only recently developed by a small number of sea turtle experts, and its relatively short 25-year predictive period, NMFS was cautious not to rely completely on any one model, and elected to proceed carefully with a quantitative and qualitative empirical evaluation of the climate-based PVA model along with inputs from multiple experts and sources, where available. Based on our analysis, NMFS anticipates a rebound of the leatherback population due to decadal oscillations in the North Pacific Ocean and that the number of nesting females will increase over 80 percent by the year 2035. Further, when NMFS analyzed the proposed action with the annual mortality of four adult females, there is a measureable loss to the population, but the population still grows. We determined that the proposed action would not appreciably reduce the likelihood of survival and recovery of the species in the wild. We expect the overall population to continue to grow and to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. Further, we expect the proposed action to have a small effect on the overall size of the population, and we do not expect it to affect the leatherbacks' ability to meet their lifecycle requirements and to retain the potential for recovery.
Papers referenced by the commenters regarding Eastern Pacific leatherbacks only evaluate land-based climate change effects, such as sand temperature on hatchlings, which is why they could project out to 2100. The climate-based PVA model relies on the strong correlation that exists between sea turtle population trends and the Pacific Decadal Oscillation (PDO). The PDO cannot be predicted beyond what information we now have, and is currently limited to the next 25 years; therefore, the model cannot forecast climate-forcing population trends beyond that period. The correlation between hatchling success and favorable oceanic conditions prior to nesting is poorly understood, and NMFS cannot directly translate effects on the Eastern Pacific leatherback to the Western Pacific leatherback population. Since 1995, none of the genetic samples collected from interactions in the shallow-set fishery is from the Eastern Pacific leatherback population.