Pacific Island Pelagic Fisheries; Exemption for Large U.S. Longline Vessels To Fish in Portions of the American Samoa Large Vessel Prohibited Area; Court Order, 43908-43909 [2017-19982]
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43908
Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 665
[Docket No. 170404354–7873–01]
RIN 0648–BG79
Pacific Island Pelagic Fisheries;
Exemption for Large U.S. Longline
Vessels To Fish in Portions of the
American Samoa Large Vessel
Prohibited Area; Court Order
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
In this final rule, NMFS
removes a regulatory exemption that
allowed certain large U.S. longline
vessels to fish in portions of the
American Samoa Large Vessel
Prohibited Area (LVPA). The intent is to
comply with a U.S. District Court Final
Judgment and Order that vacated and
set aside that rule.
DATES: Effective September 20, 2017.
FOR FURTHER INFORMATION CONTACT: Bob
Harman, NMFS PIRO Sustainable
Fisheries, 808–725–5170.
SUPPLEMENTARY INFORMATION: NMFS and
the Western Pacific Fishery
Management Council (Council) manage
pelagic fisheries in the U.S. Pacific
Islands 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). In
2002, in response to a recommendation
from the Council, NMFS implemented a
measure under the FMP that prohibited
certain vessels from fishing for Pacific
pelagic management unit species in
Federal waters from 3 nm to
approximately 30–50 nm around the
islands of American Samoa (the Large
Vessel Prohibited Area, LVPA). The area
prohibition applied to vessels more than
50 ft in length overall that had not
landed pelagic management unit species
in American Samoa under a Federal
longline general permit prior to
November 13, 1997. The LVPA was
intended to prevent the potential for
gear conflicts and catch competition
between large and small vessels. At the
time, the Council and NMFS felt that
such conflicts and competition could
have led to reduced opportunities for
sustained participation by residents of
American Samoa in the small-scale
pelagic fishery. You may read more
about the establishment of the LVPA in
sradovich on DSKBBY8HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:10 Sep 19, 2017
Jkt 241001
the 2001 proposed rule (66 FR 39475,
July 31, 2001) and 2002 final rule (67 FR
4369, January 30, 2002).
Since 2002, however, the American
Samoa longline fishery has been
experiencing declining catch rates of
albacore, lower fish prices, and
increased fuel and operating costs. In
the period 2001–2009, longline incomes
had decreased by 96 percent, with
average revenues only half of what was
necessary for profitable operations.
Concerned that the LVPA might be
unnecessarily reducing the efficiency of
the larger American Samoa longline
vessels by displacing the fleet from a
part of their historical fishing grounds,
in early 2014 the Council began
exploring ways to assist the longline
fishery, while ensuring conservation of
affected stocks and minimizing impacts
to other fisheries. To address current
fishery conditions, the Council
recommended in 2015 that NMFS
provide a limited exemption from the
LVPA based on vessel size, and allow
federally permitted U.S. longline vessels
50 ft and longer to fish in portions of the
LVPA.
Accordingly, in 2016, NMFS
published a final rule that allowed large
federally permitted U.S. longline vessels
to fish in specific areas of the LVPA.
That action allowed large U.S. vessels
that hold a Federal American Samoa
longline limited entry permit to fish
within the LVPA to within about 12–17
nm from shore around Swains Island,
Tutuila, and the Manua Islands. Large
vessels continued to be restricted from
fishing within the remaining portions of
the LVPA. The intent of the rule was to
improve the viability of the American
Samoa longline fishery and achieve
optimum yield, while preventing
overfishing in accordance with National
Standard 1 of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act). You may
read more about the large vessel
exemptions to the LVPA in the 2015
proposed rule (80 FR 51527, August 25,
2015) and 2016 final rule (81 FR 5619,
February 3, 2016).
In July 2016, the Territory of
American Samoa sued NMFS and the
Council in the U.S. District Court for the
District of Hawaii (Territory of
American Samoa v. NMFS, et al. (D. HI)
Civil 16–00095), seeking to set aside the
2016 final rule. The Territory claimed
that NMFS did not consider, as other
applicable law, the 1900 and 1904
Deeds of Cession with respect to the
protection of the cultural fishing rights
of the people of American Samoa.
On March 20, 2017, the U.S. District
Court for the District of Hawaii held
that, because NMFS did not consider
PO 00000
Frm 00082
Fmt 4700
Sfmt 4700
whether the 2016 rule was consistent
with the Deeds of Cession, the final rule
was invalid. The Court issued an Order
for NMFS to vacate and set aside the
LVPA exemption rule. On August 10,
2017, the U.S. District Court denied
Defendants’ Motion for Reconsideration
of this Judgment. Pursuant to the Final
Judgment, this final rule removes the
LVPA exemptions based on vessel size
found at Title 50, Code of Federal
Regulations, Section 665.818, paragraph
(b). All other provisions applicable to
the American Samoa longline fishery
remain unchanged.
Classification
The Assistant Administrator for
Fisheries, NOAA, has determined that
this final rule is consistent with the
Court’s Final Judgment, the MagnusonStevens Act, and other applicable laws.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
The Assistant Administrator for
Fisheries, NOAA, finds good cause to
waive notice and public comment on
this action because it would be
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. On March 27,
2017, NMFS notified longline permit
holders of the Court Order, that the
exemption available to large longline
vessels no longer applies, and that they
may not fish within the boundaries of
the LVPA.
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. Accordingly, no
regulatory flexibility analysis is required
and none has been prepared.
In addition, because the changes
required by the Court Order that are
identified in this rule are non-
E:\FR\FM\20SER1.SGM
20SER1
Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations
Dated: September 14, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
discretionary, the National
Environmental Policy Act does not
apply to this rule.
List of Subjects in 50 CFR Part 665
Administrative practice and
procedure, American Samoa, Fisheries,
Fishing, Reporting and recordkeeping
requirements.
For the reasons set out in the
preamble, NMFS amends 50 CFR part
665 as follows:
43909
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.
§ 665.818
[Amended]
2. In § 665.818, remove and reserve
paragraph (b).
■
[FR Doc. 2017–19982 Filed 9–19–17; 8:45 am]
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17:10 Sep 19, 2017
Jkt 241001
PO 00000
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20SER1
Agencies
[Federal Register Volume 82, Number 181 (Wednesday, September 20, 2017)]
[Rules and Regulations]
[Pages 43908-43909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19982]
[[Page 43908]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 170404354-7873-01]
RIN 0648-BG79
Pacific Island Pelagic Fisheries; Exemption for Large U.S.
Longline Vessels To Fish in Portions of the American Samoa Large Vessel
Prohibited Area; Court Order
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, NMFS removes a regulatory exemption that
allowed certain large U.S. longline vessels to fish in portions of the
American Samoa Large Vessel Prohibited Area (LVPA). The intent is to
comply with a U.S. District Court Final Judgment and Order that vacated
and set aside that rule.
DATES: Effective September 20, 2017.
FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIRO Sustainable
Fisheries, 808-725-5170.
SUPPLEMENTARY INFORMATION: NMFS and the Western Pacific Fishery
Management Council (Council) manage pelagic fisheries in the U.S.
Pacific Islands 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). In 2002, in
response to a recommendation from the Council, NMFS implemented a
measure under the FMP that prohibited certain vessels from fishing for
Pacific pelagic management unit species in Federal waters from 3 nm to
approximately 30-50 nm around the islands of American Samoa (the Large
Vessel Prohibited Area, LVPA). The area prohibition applied to vessels
more than 50 ft in length overall that had not landed pelagic
management unit species in American Samoa under a Federal longline
general permit prior to November 13, 1997. The LVPA was intended to
prevent the potential for gear conflicts and catch competition between
large and small vessels. At the time, the Council and NMFS felt that
such conflicts and competition could have led to reduced opportunities
for sustained participation by residents of American Samoa in the
small-scale pelagic fishery. You may read more about the establishment
of the LVPA in the 2001 proposed rule (66 FR 39475, July 31, 2001) and
2002 final rule (67 FR 4369, January 30, 2002).
Since 2002, however, the American Samoa longline fishery has been
experiencing declining catch rates of albacore, lower fish prices, and
increased fuel and operating costs. In the period 2001-2009, longline
incomes had decreased by 96 percent, with average revenues only half of
what was necessary for profitable operations. Concerned that the LVPA
might be unnecessarily reducing the efficiency of the larger American
Samoa longline vessels by displacing the fleet from a part of their
historical fishing grounds, in early 2014 the Council began exploring
ways to assist the longline fishery, while ensuring conservation of
affected stocks and minimizing impacts to other fisheries. To address
current fishery conditions, the Council recommended in 2015 that NMFS
provide a limited exemption from the LVPA based on vessel size, and
allow federally permitted U.S. longline vessels 50 ft and longer to
fish in portions of the LVPA.
Accordingly, in 2016, NMFS published a final rule that allowed
large federally permitted U.S. longline vessels to fish in specific
areas of the LVPA. That action allowed large U.S. vessels that hold a
Federal American Samoa longline limited entry permit to fish within the
LVPA to within about 12-17 nm from shore around Swains Island, Tutuila,
and the Manua Islands. Large vessels continued to be restricted from
fishing within the remaining portions of the LVPA. The intent of the
rule was to improve the viability of the American Samoa longline
fishery and achieve optimum yield, while preventing overfishing in
accordance with National Standard 1 of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). You may read
more about the large vessel exemptions to the LVPA in the 2015 proposed
rule (80 FR 51527, August 25, 2015) and 2016 final rule (81 FR 5619,
February 3, 2016).
In July 2016, the Territory of American Samoa sued NMFS and the
Council in the U.S. District Court for the District of Hawaii
(Territory of American Samoa v. NMFS, et al. (D. HI) Civil 16-00095),
seeking to set aside the 2016 final rule. The Territory claimed that
NMFS did not consider, as other applicable law, the 1900 and 1904 Deeds
of Cession with respect to the protection of the cultural fishing
rights of the people of American Samoa.
On March 20, 2017, the U.S. District Court for the District of
Hawaii held that, because NMFS did not consider whether the 2016 rule
was consistent with the Deeds of Cession, the final rule was invalid.
The Court issued an Order for NMFS to vacate and set aside the LVPA
exemption rule. On August 10, 2017, the U.S. District Court denied
Defendants' Motion for Reconsideration of this Judgment. Pursuant to
the Final Judgment, this final rule removes the LVPA exemptions based
on vessel size found at Title 50, Code of Federal Regulations, Section
665.818, paragraph (b). All other provisions applicable to the American
Samoa longline fishery remain unchanged.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this final rule is consistent with the Court's Final Judgment, the
Magnuson-Stevens Act, and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause
to waive notice and public comment on this action because it would be
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. On March 27, 2017, NMFS notified longline permit
holders of the Court Order, that the exemption available to large
longline vessels no longer applies, and that they may not fish within
the boundaries of the LVPA.
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. Accordingly, no regulatory flexibility analysis
is required and none has been prepared.
In addition, because the changes required by the Court Order that
are identified in this rule are non-
[[Page 43909]]
discretionary, the National Environmental Policy Act does not apply to
this rule.
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Reporting and recordkeeping requirements.
Dated: September 14, 2017.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
665 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.
Sec. 665.818 [Amended]
0
2. In Sec. 665.818, remove and reserve paragraph (b).
[FR Doc. 2017-19982 Filed 9-19-17; 8:45 am]
BILLING CODE 3510-22-P