[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Rules and Regulations]
[Pages 49495-49496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21349]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 180810748-8814-01]
RIN 0648-BI43
Pacific Island Fisheries; Hawaii Shallow-Set Pelagic Longline
Fishery; Court Order
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule revises from 34 to 17 the annual number of
allowable incidental interactions that may occur between the Hawaii
shallow-set pelagic longline fishery and North Pacific loggerhead sea
turtles, in compliance with an order of the U.S. District Court,
District of Hawaii.
DATES: Effective January 1, 2019.
FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS Pacific Islands
Regional Office, 808-725-5170.
SUPPLEMENTARY INFORMATION: On January 30, 2012, NMFS completed a
biological opinion (2012 BiOp) on the effects of the Hawaii shallow-set
longline fishery on marine species listed as threatened or endangered
under the Endangered Species Act (ESA). The 2012 BiOp superseded a
February 23, 2004, BiOp on the effects of Pacific Island pelagic
fisheries, including shallow-set longline fishing, on ESA-listed marine
species (2004 BiOp). In the 2012 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 2012 BiOp established an annual incidental take statement
authorizing the fishery to interact with up to 26 leatherback sea
turtles and 34 North Pacific loggerhead sea turtles. Consistent with
the 2012 BiOp, NMFS revised the annual limits on allowable incidental
interactions between the fishery and leatherback and North Pacific
loggerhead sea turtles (77 FR 60637, 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, District of Hawaii, several plaintiffs
challenged the NMFS final rule that revised the annual sea turtle
interaction limits, among other things, 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 2012 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 (Court Order). As part of the agreement, the U.S. District Court,
District of Hawaii, ordered NMFS to close the fishery for the remainder
of the 2018 fishing year. On May 11, 2018, NMFS published a temporary
rule closing the shallow-set longline fishery until December 31, 2018
(83 FR 21939).
The Court Order also required NMFS to implement a new regulation
that establishes the annual interaction limit for North Pacific
loggerhead sea turtle at 17, effective on January 1, 2019. The revised
limit is consistent with the incidental take statement from the
previous 2004 BiOp. This rule implements the Court Order by revising
the annual limit for North Pacific loggerhead sea turtles from 34 to
17. In addition, as accounted for in the Court Order, NMFS is
consulting on the potential effects of the fishery on sea turtles, and
may issue a revised regulation in the future that adopts different
interaction limits or takes a different approach to interactions after
that consultation is concluded.
If the fishery reaches the interaction limit for either leatherback
sea turtles or North Pacific loggerhead sea turtles, NMFS will close
the fishery for the remainder of the calendar year. All other
provisions applicable to the fishery remain unchanged.
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 to waive the prior notice and comment
requirement under the Administrative Procedure Act (APA, 5 U.S.C.
553(b)(B)). The Court Order, in relevant parts, vacates the portion of
the 2012 Biological Opinion that relates to North Pacific loggerhead
sea turtles, and requires NMFS to revise the interaction limit for
those turtles to 17. 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, and a new biological opinion
and incidental take statement are prepared. Because NMFS has no
discretion to revise and implement the loggerhead sea turtle
interaction limit under the Court Order, no meaningful purpose will be
served by public comment, and so providing prior notice and comment of
this rule would be impracticable and contrary to public interest. The
30-day delayed effective date requirement under the APA (5 U.S.C.
553(d)) is not waived.
Additionally, the regulatory flexibility analysis requirements of
the Regulatory 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 are not discretionary, the National
Environmental Policy Act does not apply to this rule.
[[Page 49496]]
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, Fisheries, Fishing, Hawaii,
Sea turtles.
Dated: September 26, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 665 is amended
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. 665.813, revise paragraph (b)(1) to read as follows:
Sec. 665.813 Western Pacific longline fishing restrictions.
* * * * *
(b) * * *
(1) Maximum annual limits are established on the number of physical
interactions that occur each calendar year between leatherback and
North Pacific loggerhead sea turtles and vessels registered for use
under Hawaii longline limited access permits while shallow-set fishing.
The annual limit for leatherback sea turtles (Dermochelys coriacea) is
26, and the annual limit for North Pacific loggerhead sea turtles
(Caretta caretta) is 17.
* * * * *
[FR Doc. 2018-21349 Filed 10-1-18; 8:45 am]
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