Pacific Island Fisheries; Hawaii Shallow-Set Pelagic Longline Fishery; Court Order, 49495-49496 [2018-21349]

Download as PDF Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations (consisting of Chautauqua County) has attained the 2008 8-hour ozone national ambient air quality standard (NAAQS). This determination (informally known as a Clean Data Determination) is based upon complete, quality assured, and certified ambient air monitoring data that show the Jamestown Area has monitored attainment of the 2008 8hour ozone NAAQS for the 2012–2014 and 2015–2017 monitoring periods. Under the provisions of EPA’s ozone implementation rule (see 40 CFR 51.918), this determination suspends the reasonable further progress and attainment demonstration requirements of section 182(b)(1) and related requirements of section 172(c)(9) of the Clean Air Act for this area as long as the area does not monitor any violations of the 8-hour ozone standard. If a violation of the ozone NAAQS is monitored in this area, this determination shall no longer apply. [FR Doc. 2018–21329 Filed 10–1–18; 8:45 am] BILLING CODE 6560–50–P 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 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: 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 The 2012 BiOp superseded a February 23, amozie on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:20 Oct 01, 2018 Jkt 247001 2004, BiOp on the effects of Pacific Island pelagic fisheries, including shallow-set longline fishing, on ESAlisted 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 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 49495 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. 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 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 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 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 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779–8161–02] RIN 0648–XG509 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Bering Sea Subarea of the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure. amozie on DSK3GDR082PROD with RULES AGENCY: NMFS is opening directed fishing for Pacific ocean perch in the SUMMARY: VerDate Sep<11>2014 16:20 Oct 01, 2018 Jkt 247001 Bering Sea subarea of the Bering Sea and Aleutian Islands management area. This action is necessary to fully use the 2018 total allowable catch of Pacific ocean perch specified for the Bering Sea subarea of the Bering Sea and Aleutian Islands management area. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 1, 2018, through 1200 hrs, A.l.t., December 31, 2018. Comments must be received at the following address no later than 4:30 p.m., A.l.t., October 17, 2018. ADDRESSES: Submit your comments, identified by NOAA–NMFS–2017–0108, by either of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov/docket? D=NOAA-NMFS-2017-0108, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802–1668. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/ A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Steve Whitney, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 § 679.20(d)(1)(iii) (83 FR 8365, February 27, 2018). NMFS has determined that approximately 5,200 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2018 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 1, 2018, through 1200 hrs, A.l.t., December 31, 2018. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area. The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of POP directed fishing in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 26, 2018. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 17, 2018. This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866. E:\FR\FM\02OCR1.SGM 02OCR1

Agencies

[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Rules and Regulations]
[Pages 49495-49496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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.

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

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