[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21939-21940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10096]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 120416010-2476-01]
RIN 0648-XG160


Pacific Island Fisheries; Closure of the 2018 Hawaii Shallow-Set 
Longline Fishery; Court Order

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

ACTION: Temporary rule; fishery closure.

-----------------------------------------------------------------------

SUMMARY: This final rule closes the Hawaii shallow-set pelagic longline 
fishery in compliance with an order of the U.S. District Court for the 
District of Hawaii.

DATES: Effective May 8, 2018, through December 31, 2018.
    Compliance date: May 4, 2018, through December 31, 2018.

FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-725-5170.

SUPPLEMENTARY INFORMATION: In a January 30, 2012, NMFS completed a 
biological opinion (BiOp) on the effects of the Hawaii shallow-set 
longline fishery, pursuant to the Endangered Species Act (ESA). In the 
BiOp, NMFS concluded that the continued operation of the Hawaii 
shallow-set fishery, as managed under the regulatory framework of the 
Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific 
(FEP), was not likely to jeopardize the continued existence of any ESA-
listed species, or result in destruction or adverse modification of 
designated critical habitat.
    The BiOp established an annual incidental take statement 
authorizing the fishery to interact with up to 26 leatherback and 34 
loggerhead sea turtles. Consistent with the BiOp, NMFS revised its 
regulations establishing annual limits on allowable incidental 
interactions between the fishery and leatherback and North Pacific 
loggerhead sea turtles (77 FR 60638, October 4, 2012, codified at 50 
CFR 665.813). If the fishery reaches either of the interaction limits 
in a given year, the regulations require NMFS to close the fishery for 
the remainder of the calendar year.
    In the U.S. District Court of Hawaii, several plaintiffs 
challenged, among other things, the NMFS final rule that revised the 
annual sea turtle interaction limits, and the Court ruled in favor of 
NMFS on all claims (see Turtle Island Restoration Network, et al. v. 
U.S. Dept. of Commerce, et al., (U.S.D.C. 2013), Civil No. 12-00594). 
Plaintiffs appealed the Court's decision and, on December 27, 2017, a 
U.S Ninth Circuit Court of Appeals panel issued a split decision 
affirming the NMFS BiOp regarding leatherback sea turtles, but holding 
that NMFS was arbitrary and capricious in its no-jeopardy determination 
for North Pacific loggerhead turtles (see Turtle Island Restoration 
Network, et al. v. U.S. Dept. of Commerce, et al., 878 F.3d 725 (9th 
Cir. 2017)).
    All parties agreed to settle the case pursuant to the terms 
outlined in a May 4, 2018, Stipulated Settlement Agreement and Court 
Order. As part of the agreement, the U.S. District Court for the 
District of Hawaii ordered NMFS to take several actions, including 
closing the Hawaii shallow-set longline fishery through December 31, 
2018. This rule implements the Court order to close the Hawaii shallow-
set longline fishery through December 31, 2018.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this final rule is consistent with the Court order, the Magnuson-
Stevens Fishery Conservation and Management Act, the Endangered Species 
Act, and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has good cause under the Administrative Procedure Act (5 
U.S.C. 553(b)(B)) to waive prior notice and comment and 30 days delayed 
effectiveness for this temporary rule. The Court Order, in relevant 
parts, vacates that portion of the 2012 Biological Opinion that relates 
to North Pacific loggerheads, and requires NMFS to immediately close 
the Hawaii shallow-set longline fishery until the end of 2018. Under 
the ESA, NMFS may not continue to authorize the shallow-set longline 
fishery until the consultation requirements of ESA section 7(a)(2) have 
been satisfied. Accordingly, providing the public with prior notice and 
comment rule would be contrary to the public interest because NMFS is 
required to immediately close the fishery to prevent further impacts to 
North Pacific loggerhead sea turtles while it completes the new 
biological opinion. In addition, providing prior notice and comment and 
30 days delayed effectiveness are unnecessary because NMFS has no 
discretion to take other action that is inconsistent with any term of 
the Court Order.
    In addition, the regulatory flexibility analysis requirements of 
the Regulatory

[[Page 21940]]

Flexibility Act (5 U.S.C. 603-605) do not apply to this rule. 
Furthermore, because the changes identified in this rule are required 
by the Court Order and non-discretionary, the National Environmental 
Policy Act does not apply to this rule.

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

    Dated: May 8, 2018.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2018-10096 Filed 5-8-18; 4:15 pm]
 BILLING CODE 3510-22-P