[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]


=======================================================================
-----------------------------------------------------------------------

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.

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

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]
BILLING CODE 3510-22-P