[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]



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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.

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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-

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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