[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Rules and Regulations]
[Pages 13297-13299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5664]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 100826393-1171-01]
RIN 0648-BA19
Western Pacific Pelagic Fisheries; Hawaii-Based Shallow-set
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 the annual number of allowable
incidental interactions that may occur between the Hawaii-based
shallow-set pelagic longline fishery and loggerhead sea turtles. The
U.S. District Court for the District of Hawaii issued an Order that
directs NMFS to revise the annual interaction limit for loggerhead
turtles from 46 to 17. The intent of this final rule is to ensure that
the regulations promulgate the revised limit as required by the Court
Order.
DATES: Effective March 10, 2011.
FOR FURTHER INFORMATION CONTACT: Alvin Katekaru (Pacific Islands
Region, NMFS), tel 808-944-2207.
SUPPLEMENTARY INFORMATION: Pelagic fisheries in the U.S. western
Pacific are managed under the Fishery Ecosystem Plan for Pelagic
Fisheries of the Western Pacific Region, formerly the Fishery
Management Plan for Pelagic Fisheries of the Western Pacific Region
(FMP). The Secretary of Commerce approved FMP Amendment 18 on June 17,
2009. The purpose of Amendment 18 was to optimize yield from the
Hawaii-based pelagic shallow-set longline fishery without jeopardizing
the continued existence of sea turtles and other protected resources.
On December 10, 2009, the National Marine Fisheries Service (NMFS)
published a final rule implementing Amendment 18 (74 FR
[[Page 13298]]
65460). NMFS published a technical correction to that rule on January
8, 2010 (75 FR 1023).
Section 9 of the Endangered Species Act (ESA) prohibits taking
listed species without specific authorization. When a commercial
fishing activity that is authorized by NMFS is consistent with Section
7(a)(2) of the ESA, and that action may incidentally take listed
species, NMFS issues an incidental take statement that, in relevant
parts, specifies the impact of any incidental take. The 2009 final
rule, as corrected, increased the annual number of allowable incidental
interactions (including hooking, entanglement, capture, and mortality,
whether the turtle is brought on board the vessel or not) that may
occur between the Hawaii-based pelagic shallow-set longline fishery and
loggerhead sea turtles from 17 to 46. The 2009 final rule also removed
the annual limit on the number of fishing gear deployments (longline
sets), and made several administrative clarifications to the
regulations unrelated to Amendment 18.
On December 16, 2009, Turtle Island Restoration Network, the Center
for Biological Diversity, and Kahea: The Hawaiian Environmental
Alliance (collectively the ``Plaintiffs'') filed an action in the U.S.
District Court for the District of Hawaii (Turtle Island Restoration
Network, et al., v. Department of Commerce, et al., and Hawaii Longline
Association, Civil No. 09-00598 DAE (D. HI)). The Plaintiffs alleged
that the Department of Commerce, NMFS, and Gary Locke, in his official
capacity as the Secretary of Commerce, (collectively the ``Federal
Defendants'') failed to comply with applicable laws concerning the
conservation of protected species, including the Endangered Species Act
(ESA), Migratory Bird Treaty Act (MBTA), Marine Mammal Protection Act
(MMPA), and the Administrative Procedure Act (APA).
On January 22, 2010, the Hawaii Longline Association filed a
complaint against the Federal Defendants, alleging that the Federal
Defendants failed to make certain mandatory determinations required
under the MMPA, ESA, and APA, to authorize the shallow-set longline
fishery to incidentally take humpback whales. This action (Hawaii
Longline Association v. NMFS, C.A. 10-00044 DAE-KSC (D. HI)) was
consolidated with the above action, and eventually was dismissed
following issuance of a three-year MMPA permit authorizing the
incidental taking of the Central North Pacific stock of humpback whales
by the Hawaii-based longline fisheries.
On June 24, 2010, by Order of the U.S. District Court, the
Plaintiffs' complaint was dismissed without prejudice for failure to
properly plead jurisdiction under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). The Plaintiffs
then filed a first amended complaint, also on June 24, 2010.
Thereafter, the Federal Defendants and Plaintiffs agreed upon terms of
settlement.
The U.S. District Court for the District of Hawaii issued an Order
on January 31, 2011, approving a settlement between the Plaintiffs and
the Federal Defendants. The Court ordered that the portions of the
regulations published at 74 FR 65460 (December 10, 2009), as corrected
by 75 FR 1023 (January 8, 2010), and codified at 50 CFR 665.813(b)(1),
that relate to the incidental take of loggerhead sea turtles be vacated
and remanded to the Federal Defendants. Specifically, the Court Order
vacates that portion of the final rule that had increased the allowable
interactions with loggerhead sea turtles from 17 to 46.
The Court Order also reinstates the level of incidental take for
loggerhead sea turtles established under the regulations published at
69 FR 17329 (April 2, 2004) (the ``2004 Regulations''), and those
portions of the associated February 23, 2004, biological opinion and
incidental take statement that relate to loggerhead sea turtles. The
order directs NMFS to issue a new rule revising the interaction limit
back to 17. In addition, the Court Order reinstated those portions of
the 2004 biological opinion and incidental take statement that relate
to leatherback sea turtles. The authorized incidental take of
leatherback sea turtles remains unchanged at 16.
Pursuant to the Court Order, this final rule revises the annual
number of allowable incidental interactions that occur between the
Hawaii-based pelagic shallow-set longline fishery and loggerhead sea
turtles from 46 to 17. This final rule also removes the provision for
adjusting downward the annual interactions limit the following year by
the number of interactions by which the limit was exceeded, and the
requirements for the Regional Administrator to publish a notice of the
annual interaction limits. The fishery will be closed for the remainder
of the calendar year if either the interaction limit for leatherback
sea turtles or loggerhead sea turtles is reached.
All other provisions that are currently applicable to the fishery
remain unchanged, including, but not limited to, limited access, vessel
and gear marking requirements, vessel length restrictions, Federal
catch and effort logbooks, 100-percent observer coverage, large
longline restricted areas around the Hawaiian Archipelago, vessel
monitoring system, annual protected species workshops, and the use of
sea turtle, seabird, and marine mammal handling and mitigation gear and
techniques.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this final rule is consistent with the January 31, 2011, Court
Order, the Magnuson-Stevens 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.
Because this rulemaking is required by Court Order and prior notice
and opportunity for public comment are not required under 5 U.S.C. 553,
or any other law, the regulatory flexibility analysis requirements of
the Regulatory Flexibility Act, 5 U.S.C. 603-605, do not apply to this
rule. In addition, because the changes required by the Court Order that
are identified in this rule are non-discretionary, the National
Environmental Policy Act does not apply to this rule.
The Assistant Administrator for Fisheries, NOAA, finds good cause
to waive notice and public comment on this action because it is
unnecessary and contrary to the public interest, as provided by 5
U.S.C. 553(b)(B). This action is limited in scope and ensures that the
regulatory text provides accurate information to the regulated public
that is consistent with a Federal Court Order. NMFS does not have
discretion to take other action, as there is no alternative to
complying with the requirements of the Court Order.
Furthermore, the Assistant Administrator for Fisheries finds good
cause to waive the 30-day delayed effectiveness period, as provided by
5 U.S.C. 553(d)(3), finding that such delay would be contrary to the
public interest because the measures contained in this rule are
necessary to ensure that the fishery is conducted in compliance with a
Federal Court Order and the ESA. If the requirements are not
implemented immediately, then sea turtles will not be adequately
protected from potential incidental take in excess of the Court-ordered
limit.
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, Fisheries, Fishing, Hawaii,
Sea turtles.
[[Page 13299]]
Dated: March 7, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, 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) Limits on sea turtle interactions. (1) Maximum annual limits
are established on the number of physical interactions that occur each
calendar year between leatherback and loggerhead sea turtles and
vessels registered for use under Hawaii longline limited access permits
while shallow-setting. The annual limit for leatherback sea turtles
(Dermochelys coriacea) is 16, and the annual limit for loggerhead sea
turtles (Caretta caretta) is 17.
* * * * *
[FR Doc. 2011-5664 Filed 3-10-11; 8:45 am]
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