83_FR_22031 83 FR 21939 - Pacific Island Fisheries; Closure of the 2018 Hawaii Shallow-Set Longline Fishery; Court Order

83 FR 21939 - Pacific Island Fisheries; Closure of the 2018 Hawaii Shallow-Set Longline Fishery; Court Order

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range21939-21940
FR Document2018-10096

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.

Federal Register, Volume 83 Issue 92 (Friday, May 11, 2018) 
[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21939-21940]
From the Federal Register Online  [www.thefederalregister.org]
[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

Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations 21939 rollovers. Analysis of available data DEPARTMENT OF COMMERCE Restoration Network, et al. v. U.S. Dept. shows that adjustment to the BFT daily of Commerce, et al., (U.S.D.C. 2013), retention limit from the default level National Oceanic and Atmospheric Civil No. 12–00594). Plaintiffs appealed would result in minimal risks of Administration the Court’s decision and, on December exceeding the ICCAT-allocated quota. 27, 2017, a U.S Ninth Circuit Court of NMFS provides notification of retention 50 CFR Part 665 Appeals panel issued a split decision limit adjustments by publishing the [Docket No. 120416010–2476–01] affirming the NMFS BiOp regarding notice in the Federal Register, emailing leatherback sea turtles, but holding that RIN 0648–XG160 NMFS was arbitrary and capricious in individuals who have subscribed to the its no-jeopardy determination for North Atlantic HMS News electronic Pacific Island Fisheries; Closure of the Pacific loggerhead turtles (see Turtle newsletter, and updating the 2018 Hawaii Shallow-Set Longline Island Restoration Network, et al. v. information posted on the Atlantic Fishery; Court Order U.S. Dept. of Commerce, et al., 878 F.3d Tunas Information Line and on 725 (9th Cir. 2017)). hmspermits.noaa.gov. With quota AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and All parties agreed to settle the case available and fish available on the pursuant to the terms outlined in a May Atmospheric Administration (NOAA), grounds, and with no expected impacts 4, 2018, Stipulated Settlement Commerce. to the stock, it would be contrary to the Agreement and Court Order. As part of ACTION: Temporary rule; fishery closure. public interest to require vessels to wait the agreement, the U.S. District Court to harvest the additional fish allowed SUMMARY: This final rule closes the for the District of Hawaii ordered NMFS through this action. Therefore, the AA Hawaii shallow-set pelagic longline to take several actions, including closing finds good cause under 5 U.S.C. fishery in compliance with an order of the Hawaii shallow-set longline fishery 553(b)(B) to waive prior notice and the the U.S. District Court for the District of through December 31, 2018. This rule opportunity for public comment. Hawaii. implements the Court order to close the DATES: Effective May 8, 2018, through Hawaii shallow-set longline fishery Adjustment of the General category December 31, 2018. through December 31, 2018. retention limit needs to be effective June 1, 2018, or as soon as possible Compliance date: May 4, 2018, Classification thereafter, to minimize any unnecessary through December 31, 2018. The Assistant Administrator for disruption in fishing patterns, to allow FOR FURTHER INFORMATION CONTACT: Bob Fisheries, NOAA, has determined that the impacted sectors to benefit from the Harman, NMFS PIR, 808–725–5170. this final rule is consistent with the adjustment, and to not preclude fishing SUPPLEMENTARY INFORMATION: In a Court order, the Magnuson-Stevens opportunities for fishermen in January 30, 2012, NMFS completed a Fishery Conservation and Management geographic areas with access to the biological opinion (BiOp) on the effects Act, the Endangered Species Act, and fishery only during this time period. of the Hawaii shallow-set longline other applicable laws. Foregoing opportunities to harvest the fishery, pursuant to the Endangered This final rule has been determined to respective quotas may have negative Species Act (ESA). In the BiOp, NMFS be not significant for purposes of social and economic impacts for U.S. concluded that the continued operation Executive Order 12866. of the Hawaii shallow-set fishery, as NMFS has good cause under the fishermen that depend upon catching managed under the regulatory Administrative Procedure Act (5 U.S.C. the available quota within the time framework of the Fishery Ecosystem 553(b)(B)) to waive prior notice and periods designated in the 2006 Plan for Pelagic Fisheries of the Western comment and 30 days delayed Consolidated HMS FMP and Pacific (FEP), was not likely to effectiveness for this temporary rule. amendments. Therefore, the AA finds jeopardize the continued existence of The Court Order, in relevant parts, there is also good cause under 5 U.S.C. any ESA-listed species, or result in vacates that portion of the 2012 553(d) to waive the 30-day delay in destruction or adverse modification of Biological Opinion that relates to North effectiveness. designated critical habitat. Pacific loggerheads, and requires NMFS This action is being taken under The BiOp established an annual to immediately close the Hawaii § 635.23(a)(4) and is exempt from incidental take statement authorizing shallow-set longline fishery until the review under Executive Order 12866. the fishery to interact with up to 26 end of 2018. Under the ESA, NMFS may leatherback and 34 loggerhead sea not continue to authorize the shallow- Authority: 16 U.S.C. 971 et seq. and 1801 turtles. Consistent with the BiOp, NMFS set longline fishery until the et seq. revised its regulations establishing consultation requirements of ESA Dated: May 7, 2018. annual limits on allowable incidental section 7(a)(2) have been satisfied. Jennifer M. Wallace, interactions between the fishery and Accordingly, providing the public with Acting Director, Office of Sustainable leatherback and North Pacific prior notice and comment rule would be Fisheries, National Marine Fisheries Service. loggerhead sea turtles (77 FR 60638, contrary to the public interest because [FR Doc. 2018–09960 Filed 5–8–18; 4:15 pm] October 4, 2012, codified at 50 CFR NMFS is required to immediately close 665.813). If the fishery reaches either of the fishery to prevent further impacts to BILLING CODE 3510–22–P the interaction limits in a given year, the North Pacific loggerhead sea turtles regulations require NMFS to close the while it completes the new biological fishery for the remainder of the calendar opinion. In addition, providing prior sradovich on DSK3GMQ082PROD with RULES year. notice and comment and 30 days In the U.S. District Court of Hawaii, delayed effectiveness are unnecessary several plaintiffs challenged, among because NMFS has no discretion to take other things, the NMFS final rule that other action that is inconsistent with revised the annual sea turtle interaction any term of the Court Order. limits, and the Court ruled in favor of In addition, the regulatory flexibility NMFS on all claims (see Turtle Island analysis requirements of the Regulatory VerDate Sep<11>2014 22:27 May 10, 2018 Jkt 244001 PO 00000 Frm 00099 Fmt 4700 Sfmt 4700 E:\FR\FM\11MYR1.SGM 11MYR1

21940 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations Flexibility Act (5 U.S.C. 603–605) do Environmental Policy Act does not Dated: May 8, 2018. not apply to this rule. Furthermore, apply to this rule. Jennifer M. Wallace, because the changes identified in this Authority: 16 U.S.C. 1801 et seq. Acting Director, Office of Sustainable rule are required by the Court Order and Fisheries, National Marine Fisheries Service. non-discretionary, the National [FR Doc. 2018–10096 Filed 5–8–18; 4:15 pm] BILLING CODE 3510–22–P sradovich on DSK3GMQ082PROD with RULES VerDate Sep<11>2014 22:27 May 10, 2018 Jkt 244001 PO 00000 Frm 00100 Fmt 4700 Sfmt 9990 E:\FR\FM\11MYR1.SGM 11MYR1


Document Created: 2018-11-02 09:50:08
Document Modified: 2018-11-02 09:50:08
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionTemporary rule; fishery closure.
DatesEffective May 8, 2018, through December 31, 2018.
ContactBob Harman, NMFS PIR, 808-725-5170.
FR Citation83 FR 21939 
RIN Number0648-XG16
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR