[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.

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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''
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[FR Doc. 2021-14623 Filed 7-6-21; 4:15 pm]
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