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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 665
          - [Docket No. 100826393-1171-01]
          - RIN 0648-BA19

# 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                           ( print 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

      ( print 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

1. The authority citation for 50 CFR part 665 continues to read as follows:

Authority: 16 U.S.C. 1801*et seq.*

2. In § 665.813, revise paragraph (b)(1) to read as follows: 

§ 665.813 

* * * * *

                            (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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