Current HMS SAFE Report: Protected Resources Regulations

Protected Resources Regulations

HMS FMP Endangered Species Act Consultations

Longline and drift gillnet vessels on rare occasions encounter endangered and threatened species of sea turtles and marine mammals while targeting HMS.  HMS longline vessels also infrequently encounter a number of sea birds.  Endangered and threatened marine species are protected through a number of Federal laws, including the ESA and the MMPA. The HMS FMP final rule (69 FR 18444) adopted measures to minimize interactions of HMS gears with protected species and to ensure that the HMS fisheries are operating consistent with Federal laws. These measures include time and area closures, gear requirements, and safe handling and release techniques for protected seabirds and sea turtles.  Refer to 50 CFR 660.712, 713, and 720 and 50 CFR 229.31 and 223.206 for the complete list and text of the regulations.

Impacts of  HMS FMP fisheries on species listed under the Endangered Species Act (ESA) (including marine mammals and sea turtles) have been analyzed in section 7 consultations and biological opinions (BOs), which are listed below.  BOs include an Incidental Take Statement with anticipated mortalities and entanglements of ESA-listed marine mammals and sea turtles that are likely to interact with the drift gillnet vessels targeting HMS fish species.

The 2004 BO for the HMS FMP considered the impacts of the proposed shallow-set longline fishery and found that the fishery was likely to jeopardize the continued existence of threatened loggerhead sea turtles. As a result, the shallow-set longline HMS fishery was prohibited when the FMP was implemented.

The US Fish and Wildlife Service also conducted a section 7 consultation on the HMS FMP for the endangered short-tailed albatross and brown pelican.  (The brown pelican has subsequently been de-listed.)

More information on the ESA and endangered and threatened species under NMFS’ jurisdiction may be found on NOAA Fisheries “Endangered Species Conservation” webpage.

Biological Opinions for West Coast HMS Fisheries

Date Title
2/4/04 Biological Opinion on Highly Migratory Species FMP (NMFS)
N/D Biological Opinion on Highly Migratory Species FMP (USFWS)
10/23/06 Issuance of an Exempted Fishing Permit to allow the use of drift gillnet gear in an area and time that is currently prohibited under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species. Issuance of a Marine Mammal Protection Act section 101(a)(5)(E) permit, authorizing take of endangered fin, humpback, and sperm whales
11/28/07 Shallow-set Longline exempted fishing permit under the U.S. West Coast Highly Migratory Species Fisheries
7/29/08 Updated Shallow-set Longline exempted fishing permit under the FMP for West Coast Highly Migratory Species Fisheries
4/8/11 Authorization of (1) the deep-set tuna longline fishery managed under the Fishery Management Plan for U.S. West Coast Highly Migratory Species, and (2) continued operation of Highly Migratory Species fishery vessels in the deep-set tuna longline fishery under permits pursuant to the High Seas Fishing Compliance Act.
5/2/13 Re-initiation of ESA Section 7 Consultation on the Effects of the U.S. West Coast Highly Migratory Species Drift Gillnet Fishery on ESA Listed Species
8/18/16 Continued operation of the west coast based deep-set longline fishery managed under the Fishery Management Plan for U.S. West Coast Highly Migratory Species Fisheries

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Sea Turtles Listed Under the ESA

Takes of green, olive ridley and loggerhead sea turtles are uncommon in the California drift gillnet fishery except under certain environmental conditions (e.g., El Niño or higher than usual sea surface temperatures) when turtles may move into the areas of drift gillnet fishing.  Takes of leatherbacks are also rare, likely due to the time/area closure which has been in effect since the 2001 season and subsequent reductions in fishing effort.  Since 2001, only two leatherbacks have been observed taken (released alive) in the drift gillnet fishery, one in 2009 and another in October 2012.

On April 6, 2016, NMFS and the USFWS published a final rule to list 11 DPSs of green turtles (Chelonia mydas) under the ESA (81 FR 20057).  Green sea turtles found off the U.S. west coast comprise the East Pacific DPS, which is listed as threatened.  NMFS is currently in the process of the consideration of designating critical habitat for green sea turtles in the marine environment off the U.S. west coast.

On January 29, 2012 NMFS published a final rule that designates areas off the U.S. west coast as critical habitat for endangered leatherback sea turtles (77 FR 4170).  The final rule designates as critical habitat an area of approximately 41,914 square miles from Point Arguello to Point Arena, California, and from Cape Blanco in Oregon to Cape Flattery, Washington.

On September 22, 2011, NMFS and the U.S. Fish and Wildlife Service published a final rule to list nine distinct population segments (DPSs) of the loggerhead turtle (Caretta caretta) pursuant to the ESA. After considering designation of  critical habitat for the two DPSs that occur within the EEZ of the United States, the North Pacific DPS (listed as endangered) and the Northwest Atlantic DPS (listed as threatened), in 2014 NMFS published a final rule (79 FR 39855) concluding “No marine areas meeting the definition of critical habitat were identified within the jurisdiction of the United States for the North Pacific Ocean DPS, and therefore we are not designating critical habitat for that DPS.”

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Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) establishes a general prohibition on the “take” of any marine mammal (note that the MMPA “take” definition is somewhat different from the ESA definition).  An exemption may be granted if the activity meets certain standards pursuant to MMPA Section 101. For example, section 101(a)(5)(E) provides that NMFS shall allow, for a period of up to three years, the incidental taking of marine mammal species listed under the Endangered Species Act (ESA) by persons using vessels of the United States with valid fishing permits, if NMFS makes certain determinations.  NMFS must first determine, after notice and opportunity for public comment, that: 1) the incidental mortality and serious injury from commercial fisheries will have a negligible impact on the affected species or stock; 2) a recovery plan has been developed or is being developed for such species or stock under the ESA; and 3) where required under section 118 of the MMPA, a monitoring program has been established, vessels engaged in such fisheries are registered in accordance with section 118 of the MMPA, and a take reduction plan has been developed or is being developed for such species or stock.

In order to make a negligible impact determination, NMFS must consider the total human-related mortality and serious injury to the affected stock of marine mammals.  This includes the known or estimated takes from all human sources, such as commercial fisheries and ship strikes.  There are five criteria that NMFS adopted in 1999 to make negligible impact determinations for MMPA 101(a)(5)(E) permits (64 FR 28800; May 27, 1999).  Criterion 1 is the starting point for analysis.  If Criterion 1 is not satisfied, NMFS may use one of the other criteria as appropriate.

  1. The threshold for initial determination will remain at 0.1 PBR. If total human-related serious injuries and mortalities are less than 0.1 PBR, all fisheries may be permitted.
  2. If total human-related serious injuries and mortalities are greater than PBR, and fisheries-related mortality is less than 0.1 PBR, individual fisheries may be permitted if management measures are being taken to address non-fisheries-related serious injuries and mortalities. When fisheries-related mortality and serious injury is less than 10 percent of the total, the appropriate management action is to address components that account for the major portion of the total.
  3. If total fisheries-related serious injuries and mortalities are greater than 0.1 PBR and less than PBR and the population is stable or increasing, fisheries may be permitted subject to individual review and certainty of data.  Although the PBR level has been set up as a conservative standard that will allow recovery of a stock, there are reasons for individually reviewing fisheries if serious injuries and mortalities are above the threshold level. First, increases in permitted serious injuries and mortalities should be carefully considered. Second, as serious injuries and mortalities approach the PBR level, uncertainties in elements such as population size, reproductive rates, and fisheries-related mortalities become more important.
  4. If the population abundance of a stock is declining, the threshold level of 0.1 PBR will continue to be used. If a population is declining despite limitations on human-related serious injuries and mortalities below the PBR level, a more conservative criterion is warranted.
  5. If total fisheries-related serious injuries and mortalities are greater than PBR, permits may not be issued.

On January 10, 2017, NMFS issued a Federal Register notice proposing to issue a 3-year permit to authorize the incidental take of ESA-listed humpback whales and sperm whales by the California thresher shark/swordfish drift gillnet fishery (and the WA/OR/CA sablefish pot fishery) (82 FR 2955).  Public comments must be received by February 9, 2017. Regulations implementing the Plan require fishermen participating in the California drift gillnet fishery targeting swordfish and thresher shark to use pingers in a staggered configuration on their nets and a minimum length of buoy lines. The Pacific Offshore Take Reduction Plan (satisfying requirement 3, above) was finalized in 1997. The Pacific Offshore Take Reduction Team meets periodically to assess the effectiveness of the Plan and, if necessary, develop recommendations for reducing marine mammal incidental serious injury and mortality in the California drift gillnet fishery.

The MMPA mandates that each commercial fishery be classified by the level of mortality and serious injury of marine mammals occurring incidental to each fishery. The List of Fisheries classifies U.S. commercial fisheries into one of three categories according to the level of incidental mortality or serious injury of marine mammals.  This classification is based on the rate, in numbers of animals per year, of incidental mortality and serious injury of marine mammals due to commercial fishing operations relative to a stock’s Potential Biological Removal (PBR) level, defined (50 CFR 229.2) as the maximum number of animals, not including natural mortality, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.  The DGN fishery is currently categorized as a Category I fishery (annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level) due to interactions with sperm whales in 2010.

 

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Marine Mammals of Concern for West Coast HMS Fisheries

As discussed above, PBR is an important threshold for making the negligible impact determination.  PBR is calculated as 0.5 times the maximum potential population growth rate (Rmax) times the minimum estimate of abundance (Nmin) times a recovery factor (Fr). Marine mammal stocks may be defined as “strategic” if human-caused mortality exceeds PBR, the species is listed under the ESA, the population is estimated to be declining, or the stock is designated as “depleted” under the MMPA.  This table is taken from the 2017 U.S. Pacific Marine Mammal Stock Assessment Report (June 2018). It shows estimates of these parameters for marine mammal stocks for which the Council established bycatch performance metrics.  In 2015 the Council identified these bycatch performance metrics for the California large mesh drift gillnet (DGN) fishery including take levels for selected marine mammals. At that time the Council recommended hard caps for sea turtles and selected marine mammals. In 2017 NMFS determined that the use of hard caps in this instance was unwarranted but the Council decided that take of these species should also be included as performance metrics.

On September 8, 2016, NMFS published a final rule to list (and reclassify the formerly globally listed entity) 14 DPSs of humpback whales (Megaptera novaeangliae) under the ESA (81 FR 62260).  NMFS has identified three DPSs of humpback whales that are found off the coasts of Washington, Oregon and California.  These are: the Hawaii DPS (found predominately off Washington and southern British Columbia), which is not listed under the ESA; the Mexico DPS (found all along the coast), which is listed as threatened under the ESA; and the Central America DPS (found all along the coast), which is listed as endangered under the ESA.

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