83_FR_49686 83 FR 49495 - Pacific Island Fisheries; Hawaii Shallow-Set Pelagic Longline Fishery; Court Order

83 FR 49495 - Pacific Island Fisheries; Hawaii Shallow-Set Pelagic Longline Fishery; Court Order

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 191 (October 2, 2018)

Page Range49495-49496
FR Document2018-21349

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.

Federal Register, Volume 83 Issue 191 (Tuesday, October 2, 2018) 
[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Rules and Regulations]
[Pages 49495-49496]
From the Federal Register Online  [www.thefederalregister.org]
[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 The 2012 BiOp superseded a 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]
BILLING CODE 3510-22-P

Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations 49495 (consisting of Chautauqua County) has 2004, BiOp on the effects of Pacific incidental take statement from the attained the 2008 8-hour ozone national Island pelagic fisheries, including previous 2004 BiOp. This rule ambient air quality standard (NAAQS). shallow-set longline fishing, on ESA- implements the Court Order by revising This determination (informally known listed marine species (2004 BiOp). In the annual limit for North Pacific as a Clean Data Determination) is based the 2012 BiOp, NMFS concluded that loggerhead sea turtles from 34 to 17. In upon complete, quality assured, and the continued operation of the Hawaii addition, as accounted for in the Court certified ambient air monitoring data shallow-set fishery, as managed under Order, NMFS is consulting on the that show the Jamestown Area has the regulatory framework of the Fishery potential effects of the fishery on sea monitored attainment of the 2008 8- Ecosystem Plan for Pelagic Fisheries of turtles, and may issue a revised hour ozone NAAQS for the 2012–2014 the Western Pacific (FEP), was not likely regulation in the future that adopts and 2015–2017 monitoring periods. to jeopardize the continued existence of different interaction limits or takes a Under the provisions of EPA’s ozone any ESA-listed species or result in different approach to interactions after implementation rule (see 40 CFR destruction or adverse modification of that consultation is concluded. 51.918), this determination suspends designated critical habitat. If the fishery reaches the interaction the reasonable further progress and The 2012 BiOp established an annual limit for either leatherback sea turtles or attainment demonstration requirements incidental take statement authorizing North Pacific loggerhead sea turtles, of section 182(b)(1) and related the fishery to interact with up to 26 NMFS will close the fishery for the requirements of section 172(c)(9) of the leatherback sea turtles and 34 North remainder of the calendar year. All Clean Air Act for this area as long as the Pacific loggerhead sea turtles. other provisions applicable to the area does not monitor any violations of Consistent with the 2012 BiOp, NMFS fishery remain unchanged. the 8-hour ozone standard. If a violation revised the annual limits on allowable of the ozone NAAQS is monitored in incidental interactions between the Classification this area, this determination shall no fishery and leatherback and North Pacific loggerhead sea turtles (77 FR The Assistant Administrator for longer apply. Fisheries, NOAA, has determined that 60637, October 4, 2012, codified at 50 [FR Doc. 2018–21329 Filed 10–1–18; 8:45 am] this final rule is consistent with the CFR 665.813). If the fishery reaches BILLING CODE 6560–50–P either of the interaction limits in a given Court order, the Magnuson-Stevens year, the regulations require NMFS to Fishery Conservation and Management close the fishery for the remainder of the Act, the Endangered Species Act, and DEPARTMENT OF COMMERCE calendar year. other applicable laws. In the U.S. District Court, District of This final rule has been determined to National Oceanic and Atmospheric Hawaii, several plaintiffs challenged the be not significant for purposes of Administration NMFS final rule that revised the annual Executive Order 12866. sea turtle interaction limits, among NMFS has good cause to waive the 50 CFR Part 665 other things, and the Court ruled in prior notice and comment requirement [Docket No. 180810748–8814–01] favor of NMFS on all claims (see Turtle under the Administrative Procedure Act Island Restoration Network, et al. v. (APA, 5 U.S.C. 553(b)(B)). The Court RIN 0648–BI43 U.S. Dept. of Commerce, et al., (U.S.D.C. Order, in relevant parts, vacates the 2013), Civil No. 12–00594). Plaintiffs Pacific Island Fisheries; Hawaii portion of the 2012 Biological Opinion appealed the Court’s decision and, on Shallow-Set Pelagic Longline Fishery; that relates to North Pacific loggerhead December 27, 2017, a U.S. Ninth Circuit Court Order sea turtles, and requires NMFS to revise Court of Appeals panel issued a split the interaction limit for those turtles to AGENCY: National Marine Fisheries decision affirming the 2012 BiOp 17. Under the ESA, NMFS may not Service (NMFS), National Oceanic and regarding leatherback sea turtles, but continue to authorize the shallow-set Atmospheric Administration (NOAA), holding that NMFS was arbitrary and longline fishery until the consultation Commerce. capricious in its no-jeopardy requirements of ESA section 7(a)(2) determination for North Pacific ACTION: Final rule. have been satisfied, and a new loggerhead turtles (see Turtle Island Restoration Network, et al. v. U.S. Dept. biological opinion and incidental take SUMMARY: This final rule revises from 34 statement are prepared. Because NMFS to 17 the annual number of allowable of Commerce, et al., 878 F.3d 725 (9th Cir. 2017)). has no discretion to revise and incidental interactions that may occur implement the loggerhead sea turtle between the Hawaii shallow-set pelagic All parties agreed to settle the case pursuant to the terms outlined in a May interaction limit under the Court Order, longline fishery and North Pacific no meaningful purpose will be served loggerhead sea turtles, in compliance 4, 2018, Stipulated Settlement Agreement and Court Order (Court by public comment, and so providing with an order of the U.S. District Court, prior notice and comment of this rule District of Hawaii. Order). As part of the agreement, the U.S. District Court, District of Hawaii, would be impracticable and contrary to DATES: Effective January 1, 2019. public interest. The 30-day delayed ordered NMFS to close the fishery for FOR FURTHER INFORMATION CONTACT: Bob the remainder of the 2018 fishing year. effective date requirement under the Harman, NMFS Pacific Islands Regional On May 11, 2018, NMFS published a APA (5 U.S.C. 553(d)) is not waived. Office, 808–725–5170. temporary rule closing the shallow-set Additionally, the regulatory flexibility SUPPLEMENTARY INFORMATION: On longline fishery until December 31, analysis requirements of the Regulatory January 30, 2012, NMFS completed a 2018 (83 FR 21939). Flexibility Act (5 U.S.C. 603–605) do amozie on DSK3GDR082PROD with RULES biological opinion (2012 BiOp) on the The Court Order also required NMFS not apply to this rule. Furthermore, effects of the Hawaii shallow-set to implement a new regulation that because the changes identified in this longline fishery on marine species listed establishes the annual interaction limit rule are required by the Court Order and as threatened or endangered under the for North Pacific loggerhead sea turtle at are not discretionary, the National Endangered Species Act (ESA). The 17, effective on January 1, 2019. The Environmental Policy Act does not 2012 BiOp superseded a February 23, revised limit is consistent with the apply to this rule. VerDate Sep<11>2014 16:20 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\02OCR1.SGM 02OCR1

49496 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations List of Subjects in 50 CFR Part 665 Bering Sea subarea of the Bering Sea § 679.20(d)(1)(iii) (83 FR 8365, February Administrative practice and and Aleutian Islands management area. 27, 2018). This action is necessary to fully use the NMFS has determined that procedure, Fisheries, Fishing, Hawaii, 2018 total allowable catch of Pacific approximately 5,200 metric tons of POP Sea turtles. ocean perch specified for the Bering Sea remain in the directed fishing Dated: September 26, 2018. subarea of the Bering Sea and Aleutian allowance. Therefore, in accordance Samuel D. Rauch III, Islands management area. with § 679.25(a)(1)(i), (a)(2)(i)(C), and Deputy Assistant Administrator for DATES: Effective 1200 hrs, Alaska local (a)(2)(iii)(D), and to fully utilize the Regulatory Programs, National Marine time (A.l.t.), October 1, 2018, through 2018 total allowable catch of POP in the Fisheries Service. Bering Sea subarea of the BSAI, NMFS 1200 hrs, A.l.t., December 31, 2018. For the reasons set out in the Comments must be received at the is terminating the previous closure and preamble, 50 CFR part 665 is amended following address no later than 4:30 is opening directed fishing for POP in as follows: p.m., A.l.t., October 17, 2018. Bering Sea subarea of the BSAI, effective ADDRESSES: Submit your comments, 1200 hrs, A.l.t., October 1, 2018, PART 665—FISHERIES IN THE through 1200 hrs, A.l.t., December 31, identified by NOAA–NMFS–2017–0108, WESTERN PACIFIC 2018. This will enhance the by either of the following methods: • Electronic Submission: Submit all socioeconomic well-being of harvesters ■ 1. The authority citation for 50 CFR dependent on POP in this area. electronic public comments via the part 665 continues to read as follows: The Administrator, Alaska Region Federal e-Rulemaking Portal. Go to Authority: 16 U.S.C. 1801 et seq. considered the following factors in https://www.regulations.gov/docket? reaching this decision: (1) The current ■ 2. In § 665.813, revise paragraph (b)(1) D=NOAA-NMFS-2017-0108, click the catch of POP in the BSAI and, (2) the to read as follows: ‘‘Comment Now!’’ icon, complete the harvest capacity and stated intent on required fields, and enter or attach your § 665.813 Western Pacific longline fishing future harvesting patterns of vessels comments. restrictions. • Mail: Submit written comments to participating in this fishery. * * * * * Glenn Merrill, Assistant Regional Classification (b) * * * Administrator, Sustainable Fisheries This action responds to the best (1) Maximum annual limits are Division, Alaska Region NMFS, Attn: available information recently obtained established on the number of physical Ellen Sebastian. Mail comments to P.O. from the fishery. The Assistant interactions that occur each calendar Box 21668, Juneau, AK 99802–1668. Administrator for Fisheries, NOAA year between leatherback and North Instructions: Comments sent by any (AA), finds good cause to waive the Pacific loggerhead sea turtles and other method, to any other address or requirement to provide prior notice and vessels registered for use under Hawaii individual, or received after the end of opportunity for public comment longline limited access permits while the comment period, may not be pursuant to the authority set forth at 5 shallow-set fishing. The annual limit for considered by NMFS. All comments U.S.C. 553(b)(B), as such requirement is leatherback sea turtles (Dermochelys received are a part of the public record impracticable and contrary to the public coriacea) is 26, and the annual limit for will generally be posted for public interest. This requirement is North Pacific loggerhead sea turtles viewing on www.regulations.gov impracticable and contrary to the public (Caretta caretta) is 17. without change. All personal identifying interest as it would prevent NMFS from * * * * * information (e.g., name, address, etc.), responding to the most recent fisheries [FR Doc. 2018–21349 Filed 10–1–18; 8:45 am] confidential business information, or data in a timely fashion and would BILLING CODE 3510–22–P otherwise sensitive information delay the opening of POP directed submitted voluntarily by the sender will fishing in the Bering Sea subarea of the be publicly accessible. NMFS will BSAI. NMFS was unable to publish a DEPARTMENT OF COMMERCE accept anonymous comments (enter ‘‘N/ notice providing time for public A’’ in the required fields if you wish to comment because the most recent, National Oceanic and Atmospheric remain anonymous). relevant data only became available as Administration FOR FURTHER INFORMATION CONTACT: of September 26, 2018. Steve Whitney, 907–586–7228. The AA also finds good cause to 50 CFR Part 679 SUPPLEMENTARY INFORMATION: NMFS waive the 30-day delay in the effective [Docket No. 170817779–8161–02] manages the groundfish fishery in the date of this action under 5 U.S.C. Bering Sea and Aleutian Islands 553(d)(3). This finding is based upon RIN 0648–XG509 management area (BSAI) exclusive the reasons provided above for waiver of Fisheries of the Exclusive Economic economic zone according to the Fishery prior notice and opportunity for public Zone Off Alaska; Pacific Ocean Perch Management Plan for Groundfish of the comment. in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Without this inseason adjustment, Bering Sea and Aleutian Islands management area (FMP) prepared by the NMFS could not allow the fishery for Management Area North Pacific Fishery Management POP in the Bering Sea subarea of the Council under authority of the BSAI to be harvested in an expedient AGENCY: National Marine Fisheries Magnuson-Stevens Fishery manner and in accordance with the Service (NMFS), National Oceanic and Conservation and Management Act. regulatory schedule. Under Atmospheric Administration (NOAA), Regulations governing fishing by U.S. § 679.25(c)(2), interested persons are amozie on DSK3GDR082PROD with RULES Commerce. vessels in accordance with the FMP invited to submit written comments on ACTION: Temporary rule; modification of appear at subpart H of 50 CFR part 600 this action to the above address until a closure. and 50 CFR part 679. October 17, 2018. NMFS closed directed fishing for This action is required by § 679.20 SUMMARY: NMFS is opening directed Pacific ocean perch (POP) in the Bering and § 679.25 and is exempt from review fishing for Pacific ocean perch in the Sea subarea of the BSAI under under Executive Order 12866. VerDate Sep<11>2014 16:20 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\02OCR1.SGM 02OCR1


Document Created: 2018-10-02 01:19:41
Document Modified: 2018-10-02 01:19:41
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
ActionFinal rule.
DatesEffective January 1, 2019.
ContactBob Harman, NMFS Pacific Islands Regional Office, 808-725-5170.
FR Citation83 FR 49495 
RIN Number0648-BI43
CFR AssociatedAdministrative Practice and Procedure; Fisheries; Fishing; Hawaii and Sea Turtles
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