Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations 36239 

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 

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 

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, 


jbell on DSKJLSW7X2PROD with RULES
36240 Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations 

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 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: 

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 S. lat. W. long. 

TU–1 ................... 14°01′42′′ 171°02′36′′ 

TU–2 ................... 14°01′42′′ 170°20′22′′ 

TU–3 ................... 14°34′31′′ 170°20′22′′ 

TU–4 ................... 14°34′31′′ 171°03′10′′ 

TU–5 ................... 14°02′47′′ 171°03′10′′ 

TU–1 ................... 14°01′42′′ 171°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°57′16′′ 169°53′37′′ 

MA–2 ................... 13°57′16′′ 169°12′45′′ 

MA–3 ................... 14°28′28′′ 169°12′45′′ 

MA–4 ................... 14°28′28′′ 169°53′37′′ 

MA–1 ................... 13°57′16′′ 169°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°50′42′′ 171°17′42′′ 

SW–2 .................. 10°50′42′′ 170°51′39′′ 

SW–3 .................. 11°16′08′′ 170°51′39′′ 

SW–4 .................. 11°16′08′′ 171°17′42′′ 

SW–1 .................. 10°50′42′′ 171°17′42′′ 

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

BILLING CODE 3510–22–P 


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