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 

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 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 nonVerDate Sep<11>2014 17:10 Sep 19, 2017 Jkt 241001 PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 E:\FR\FM\20SER1.SGM 20SER1

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Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 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 

■ 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] 

BILLING CODE 3510–22–P 


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