Pacific Island Fisheries; Exemption for Large U.S. Longline Vessels To Fish in Portions of the American Samoa Large Vessel Prohibited Area; Court Order, 36239-36240 [2021-14623]

Download as PDF Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES index to inform EMSY is ongoing. NMFS has not yet determined whether, based on that paper, a change in how EMSY is calculated is necessary for management purposes. NMFS will continue to examine whether this new publication warrants a change in management; however, at this time NMFS has determined that the reference points set through this action are based on the best scientific information available. Regarding recent Council discussions related to EMSY, NMFS notes that the Council’s SSC—the scientific advisory body that is responsible for recommending changes to EMSY—has the ability to recommend changes to EMSY at any time, and it has not determined that a change is necessary at this time. The Council’s SSC previously made such a recommendation in 2014 when it recommended that NMFS switch from using the 3-year average of Scripps Institution of Oceanography (SIO) sea surface temperature measurements to using the 3-year average of CalCOFI sea surface temperature measurements to inform EMSY. In 2014 the SSC also recommended an interim measure of a static EMSY of 18 percent until that change, from SIO to CalCOFI, could be adopted after being properly analyzed. Classification Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the CPS FMP, other provisions of the MSA, and other applicable law. The need to implement these measures in a timely manner to ensure they are in place as soon as possible after the start of the fishing season, July 1, 2021, constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after date of publication. In accordance with the FMP, this rule was recommended by the Council at its meeting in April 2021, the contents of which were based on the best available new information on the population status of Pacific sardine that became available at that time. Making these final specifications effective as soon as possible after July 1, the first day of the fishing year, is necessary for the conservation and management of the Pacific sardine resource because last year’s restrictions on harvest are not effective after June 30. The FMP requires a prohibition on primary directed fishing for Pacific sardine for the 2021–2022 fishing year because the sardine biomass has dropped below the CUTOFF. The purpose of the CUTOFF in the FMP, and for prohibiting a VerDate Sep<11>2014 15:58 Jul 08, 2021 Jkt 253001 primary directed fishery when the biomass drops below this level, is to protect the stock when biomass is low and provide a buffer of spawning stock that is protected from fishing and can contribute to rebuilding the stock. A delay of a full 30 days in the date of effectiveness for this rule would result in the re-opening of the primary directed commercial fishery on July 1. Delaying the effective date of this rule much beyond July 1 would be contrary to the public interest because it would jeopardize the sustainability of the Pacific sardine stock. Furthermore, most affected fishermen are aware that the Council recommended that primary directed commercial fishing be prohibited for the 2021–2022 fishing year, and are fully prepared to comply with the prohibition. This final rule is exempt from review under Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for the purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule and is not repeated here. As a result, a regulatory flexibility analysis was not required, and none was prepared. Pursuant to Executive Order 13175, this rule was developed after meaningful consultation and collaboration with the Council’s tribal representative, who has agreed with the provisions that apply to tribal vessels. This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act. There are no relevant Federal rules that may duplicate, overlap, or conflict with the action. Authority: 16 U.S.C. 1801 et seq. Dated: July 6, 2021. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2021–14643 Filed 7–6–21; 4:15 pm] BILLING CODE 3510–22–P PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 36239 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 210701–0142] RIN 0648–BK28 Pacific Island 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: NMFS implements a regulatory exemption that allows certain U.S. longline vessels 50 ft (15.2 m) and larger (‘‘large longline vessels’’) to fish in portions of the American Samoa Large Vessel Prohibited Area (LVPA). The intent is to comply with a U.S. Ninth Circuit Court of Appeals decision and Order that reversed a district court ruling that had vacated and set aside the exemption. DATES: Effective July 6, 2021. 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. In 2016, NMFS published a final rule (81 FR 5619, February 3, 2016) that allowed U.S. longline vessels greater than 50 feet that hold a Federal American Samoa longline limited entry permit to fish within the LVPA to within about 12–17 nm (22–31 km) from shore around Swains Island, Tutuila, and the Manua Islands. Large longline 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). Additional information about the LVPA exemptions is available in the proposed rule (80 FR 51527, August 25, 2015) and final rule. In July 2016, the Territory of American Samoa sued NMFS in the U.S. District Court for the District of Hawaii (Territory of American Samoa v. NMFS, SUMMARY: E:\FR\FM\09JYR1.SGM 09JYR1 36240 Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES 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 Cessions with respect to the protection of 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 the 2016 final rule was arbitrary and capricious because NMFS did not consider whether the rule and its impacts on cultural fishing were consistent with the Cessions. On August 10, 2017, the U.S. District Court denied Defendants’ Motion for Reconsideration of this decision. Accordingly, NMFS published a final rule (82 FR 43908, September 20, 2017) that removed the regulatory exemption that allowed large vessels to fish within certain areas of the LVPA. NMFS appealed the district court decision to the U.S. Court of Appeals for the Ninth Circuit (Territory of American Samoa v. NMFS et al., No. 17–17081 (9th Cir.)). On September 25, 2020, a 9th Circuit Court panel unanimously held that NMFS had properly considered the impact of the 2016 LVPA rule on cultural fishing and fishing communities, regardless of whether it specifically considered the Cessions. American Samoa subsequently filed a petition for a writ of certiorari, which on June 21, 2021, the Supreme Court denied. Pursuant to the 9th Circuit Court mandate on November 17, 2020, this final rule reinstates the LVPA exemptions established in the 2016 final rule (81 FR 5619, and codified at 50 CFR 665.818(b)). This rule allows U.S. large longline vessels that hold a Federal American Samoa longline limited entry permit to fish within the LVPA to approximately 12–17 nm from the shoreline around Swains Island, Tutuila, and the Manua Islands. All other provisions applicable to the fishery remain unchanged. Classification NMFS is issuing this rule pursuant to 305(d) of the Magnuson-Stevens Act because this action is necessary to carry out the Ninth Circuit Order. The Assistant Administrator for Fisheries has determined that this final rule is consistent with the Ninth Circuit Order, the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific, and other applicable law. The Assistant Administrator for Fisheries finds good cause to waive notice and public comment on this action because it would be unnecessary VerDate Sep<11>2014 15:58 Jul 08, 2021 Jkt 253001 and contrary to the public interest, as provided by 5 U.S.C. 553(b)(B). This action reinstates an exemption that was implemented by prior rulemaking, including the opportunity for notice and comment, and that was set aside by a district court. That district court decision has been reversed by the Ninth Circuit Court of Appeals. NMFS does not have discretion to take other action, as there is no alternative to complying with the requirements of the Ninth Circuit 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 the Ninth Circuit Order. Because this rulemaking is required by a Ninth Circuit 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 Ninth Circuit Order identified in this rule are nondiscretionary, the National Environmental Policy Act does not apply to this rule. This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995. This final rule has been determined to be not significant for purposes of Executive Order 12866. List of Subjects in 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: July 6, 2021. 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 1. The authority citation for 50 CFR part 665 continues to read as follows: ■ PO 00000 Frm 00048 Fmt 4700 Sfmt 9990 Authority: 16 U.S.C. 1801 et seq. 2. In § 665.818, add paragraph (b) to read as follows: ■ § 665.818 Exemptions for American Samoa large vessel prohibited areas. * * * * * (b) Exemption for vessel size. Except as otherwise prohibited in subpart I of this part, a vessel of any size that is registered for use with a valid American Samoa longline limited access permit is authorized to fish for western Pacific pelagic MUS within the American Samoa large vessel prohibited areas as defined in § 665.806(b), except that no large vessel as defined in § 665.12 may be used to fish for western Pacific pelagic MUS in the portions of the American Samoa large vessel prohibited areas, as follows: (1) EEZ waters around Tutuila Island enclosed by straight lines connecting the following coordinates (the datum for these coordinates is World Geodetic System 1984 (WGS84)): Point TU–1 TU–2 TU–3 TU–4 TU–5 TU–1 ................... ................... ................... ................... ................... ................... S. lat. 14°01′42″ 14°01′42″ 14°34′31″ 14°34′31″ 14°02′47″ 14°01′42″ W. long. 171°02′36″ 170°20′22″ 170°20′22″ 171°03′10″ 171°03′10″ 171°02′36″ (2) EEZ waters around the Manua Islands enclosed by straight lines connecting the following coordinates (WGS84): Point MA–1 MA–2 MA–3 MA–4 MA–1 ................... ................... ................... ................... ................... S. lat. 13°57′16″ 13°57′16″ 14°28′28″ 14°28′28″ 13°57′16″ W. long. 169°53′37″ 169°12′45″ 169°12′45″ 169°53′37″ 169°53′37″ (3) EEZ waters around Swains Island enclosed by straight lines connecting the following coordinates (WGS84): Point SW–1 SW–2 SW–3 SW–4 SW–1 .................. .................. .................. .................. .................. S. lat. 10°50′42″ 10°50′42″ 11°16′08″ 11°16′08″ 10°50′42″ W. long. 171°17′42″ 170°51′39″ 170°51′39″ 171°17′42″ 171°17′42″ [FR Doc. 2021–14623 Filed 7–6–21; 4:15 pm] BILLING CODE 3510–22–P E:\FR\FM\09JYR1.SGM 09JYR1

Agencies

[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Rules and Regulations]
[Pages 36239-36240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14623]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 210701-0142]
RIN 0648-BK28


Pacific Island 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: NMFS implements a regulatory exemption that allows certain 
U.S. longline vessels 50 ft (15.2 m) and larger (``large longline 
vessels'') to fish in portions of the American Samoa Large Vessel 
Prohibited Area (LVPA). The intent is to comply with a U.S. Ninth 
Circuit Court of Appeals decision and Order that reversed a district 
court ruling that had vacated and set aside the exemption.

DATES: Effective July 6, 2021.

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. In 2016, NMFS published a final rule (81 
FR 5619, February 3, 2016) that allowed U.S. longline vessels greater 
than 50 feet that hold a Federal American Samoa longline limited entry 
permit to fish within the LVPA to within about 12-17 nm (22-31 km) from 
shore around Swains Island, Tutuila, and the Manua Islands. Large 
longline 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). Additional information about the LVPA 
exemptions is available in the proposed rule (80 FR 51527, August 25, 
2015) and final rule.
    In July 2016, the Territory of American Samoa sued NMFS in the U.S. 
District Court for the District of Hawaii (Territory of American Samoa 
v. NMFS,

[[Page 36240]]

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 Cessions with respect to the 
protection of 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 the 2016 final rule was arbitrary and capricious because NMFS 
did not consider whether the rule and its impacts on cultural fishing 
were consistent with the Cessions. On August 10, 2017, the U.S. 
District Court denied Defendants' Motion for Reconsideration of this 
decision. Accordingly, NMFS published a final rule (82 FR 43908, 
September 20, 2017) that removed the regulatory exemption that allowed 
large vessels to fish within certain areas of the LVPA.
    NMFS appealed the district court decision to the U.S. Court of 
Appeals for the Ninth Circuit (Territory of American Samoa v. NMFS et 
al., No. 17-17081 (9th Cir.)). On September 25, 2020, a 9th Circuit 
Court panel unanimously held that NMFS had properly considered the 
impact of the 2016 LVPA rule on cultural fishing and fishing 
communities, regardless of whether it specifically considered the 
Cessions. American Samoa subsequently filed a petition for a writ of 
certiorari, which on June 21, 2021, the Supreme Court denied. Pursuant 
to the 9th Circuit Court mandate on November 17, 2020, this final rule 
reinstates the LVPA exemptions established in the 2016 final rule (81 
FR 5619, and codified at 50 CFR 665.818(b)). This rule allows U.S. 
large longline vessels that hold a Federal American Samoa longline 
limited entry permit to fish within the LVPA to approximately 12-17 nm 
from the shoreline around Swains Island, Tutuila, and the Manua 
Islands. All other provisions applicable to the fishery remain 
unchanged.

Classification

    NMFS is issuing this rule pursuant to 305(d) of the Magnuson-
Stevens Act because this action is necessary to carry out the Ninth 
Circuit Order. The Assistant Administrator for Fisheries has determined 
that this final rule is consistent with the Ninth Circuit Order, the 
Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific, 
and other applicable law.
    The Assistant Administrator for Fisheries 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 reinstates an exemption that was 
implemented by prior rulemaking, including the opportunity for notice 
and comment, and that was set aside by a district court. That district 
court decision has been reversed by the Ninth Circuit Court of Appeals. 
NMFS does not have discretion to take other action, as there is no 
alternative to complying with the requirements of the Ninth Circuit 
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 
the Ninth Circuit Order.
    Because this rulemaking is required by a Ninth Circuit 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 Ninth Circuit 
Order identified in this rule are non-discretionary, the National 
Environmental Policy Act does not apply to this rule.
    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 665

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Reporting and recordkeeping requirements.

    Dated: July 6, 2021.
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.


0
2. In Sec.  665.818, add paragraph (b) to read as follows:


Sec.  665.818   Exemptions for American Samoa large vessel prohibited 
areas.

* * * * *
    (b) Exemption for vessel size. Except as otherwise prohibited in 
subpart I of this part, a vessel of any size that is registered for use 
with a valid American Samoa longline limited access permit is 
authorized to fish for western Pacific pelagic MUS within the American 
Samoa large vessel prohibited areas as defined in Sec.  665.806(b), 
except that no large vessel as defined in Sec.  665.12 may be used to 
fish for western Pacific pelagic MUS in the portions of the American 
Samoa large vessel prohibited areas, as follows:
    (1) EEZ waters around Tutuila Island enclosed by straight lines 
connecting the following coordinates (the datum for these coordinates 
is World Geodetic System 1984 (WGS84)):

------------------------------------------------------------------------
              Point                     S. lat.            W. long.
------------------------------------------------------------------------
TU-1.............................  14[deg]01'42''     171[deg]02'36''
TU-2.............................  14[deg]01'42''     170[deg]20'22''
TU-3.............................  14[deg]34'31''     170[deg]20'22''
TU-4.............................  14[deg]34'31''     171[deg]03'10''
TU-5.............................  14[deg]02'47''     171[deg]03'10''
TU-1.............................  14[deg]01'42''     171[deg]02'36''
------------------------------------------------------------------------

    (2) EEZ waters around the Manua Islands enclosed by straight lines 
connecting the following coordinates (WGS84):

------------------------------------------------------------------------
              Point                     S. lat.            W. long.
------------------------------------------------------------------------
MA-1.............................  13[deg]57'16''     169[deg]53'37''
MA-2.............................  13[deg]57'16''     169[deg]12'45''
MA-3.............................  14[deg]28'28''     169[deg]12'45''
MA-4.............................  14[deg]28'28''     169[deg]53'37''
MA-1.............................  13[deg]57'16''     169[deg]53'37''
------------------------------------------------------------------------

    (3) EEZ waters around Swains Island enclosed by straight lines 
connecting the following coordinates (WGS84):

------------------------------------------------------------------------
              Point                     S. lat.            W. long.
------------------------------------------------------------------------
SW-1.............................  10[deg]50'42''     171[deg]17'42''
SW-2.............................  10[deg]50'42''     170[deg]51'39''
SW-3.............................  11[deg]16'08''     170[deg]51'39''
SW-4.............................  11[deg]16'08''     171[deg]17'42''
SW-1.............................  10[deg]50'42''     171[deg]17'42''
------------------------------------------------------------------------

[FR Doc. 2021-14623 Filed 7-6-21; 4:15 pm]
BILLING CODE 3510-22-P