82 FR 43908 - 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

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 181 (September 20, 2017)

Page Range		43908-43909
FR Document		2017-19982

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.

Federal Register, Volume 82 Issue 181 (Wednesday, September 20, 2017)

[Federal Register Volume 82, Number 181 (Wednesday, September 20, 2017)]
[Rules and Regulations]
[Pages 43908-43909]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-19982]



[[Page 43908]]

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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.

-----------------------------------------------------------------------

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-

[[Page 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

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

43908 Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations

DEPARTMENT OF COMMERCE the 2001 proposed rule (66 FR 39475, whether the 2016 rule was consistent
July 31, 2001) and 2002 final rule (67 FR with the Deeds of Cession, the final rule
National Oceanic and Atmospheric 4369, January 30, 2002). was invalid. The Court issued an Order
Administration Since 2002, however, the American for NMFS to vacate and set aside the
Samoa longline fishery has been LVPA exemption rule. On August 10,
50 CFR Part 665 experiencing declining catch rates of 2017, the U.S. District Court denied
albacore, lower fish prices, and Defendants’ Motion for Reconsideration
[Docket No. 170404354–7873–01]
increased fuel and operating costs. In of this Judgment. Pursuant to the Final
RIN 0648–BG79 the period 2001–2009, longline incomes Judgment, this final rule removes the
had decreased by 96 percent, with LVPA exemptions based on vessel size
Pacific Island Pelagic Fisheries; average revenues only half of what was found at Title 50, Code of Federal
Exemption for Large U.S. Longline necessary for profitable operations. Regulations, Section 665.818, paragraph
Vessels To Fish in Portions of the Concerned that the LVPA might be (b). All other provisions applicable to
American Samoa Large Vessel unnecessarily reducing the efficiency of the American Samoa longline fishery
Prohibited Area; Court Order the larger American Samoa longline remain unchanged.
AGENCY: National Marine Fisheries vessels by displacing the fleet from a
part of their historical fishing grounds, Classification
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), in early 2014 the Council began The Assistant Administrator for
Commerce. exploring ways to assist the longline Fisheries, NOAA, has determined that
fishery, while ensuring conservation of this final rule is consistent with the
ACTION: Final rule.
affected stocks and minimizing impacts Court’s Final Judgment, the Magnuson-
SUMMARY: In this final rule, NMFS to other fisheries. To address current Stevens Act, and other applicable laws.
removes a regulatory exemption that fishery conditions, the Council This final rule has been determined to
allowed certain large U.S. longline recommended in 2015 that NMFS be not significant for purposes of
vessels to fish in portions of the provide a limited exemption from the Executive Order 12866.
American Samoa Large Vessel LVPA based on vessel size, and allow The Assistant Administrator for
Prohibited Area (LVPA). The intent is to federally permitted U.S. longline vessels Fisheries, NOAA, finds good cause to
comply with a U.S. District Court Final 50 ft and longer to fish in portions of the waive notice and public comment on
Judgment and Order that vacated and LVPA. this action because it would be
set aside that rule. Accordingly, in 2016, NMFS unnecessary and contrary to the public
published a final rule that allowed large interest, as provided by 5 U.S.C.
DATES: Effective September 20, 2017.
federally permitted U.S. longline vessels 553(b)(B). This action is limited in
FOR FURTHER INFORMATION CONTACT: Bob scope and ensures that the regulatory
to fish in specific areas of the LVPA.
Harman, NMFS PIRO Sustainable That action allowed large U.S. vessels text provides accurate information to
Fisheries, 808–725–5170. that hold a Federal American Samoa the regulated public that is consistent
SUPPLEMENTARY INFORMATION: NMFS and longline limited entry permit to fish with a Federal Court Order. NMFS does
the Western Pacific Fishery within the LVPA to within about 12–17 not have discretion to take other action,
Management Council (Council) manage nm from shore around Swains Island, as there is no alternative to complying
pelagic fisheries in the U.S. Pacific Tutuila, and the Manua Islands. Large with the requirements of the Court
Islands under the Fishery Ecosystem vessels continued to be restricted from Order.
Plan for Pelagic Fisheries of the Western fishing within the remaining portions of Furthermore, the Assistant
Pacific Region, formerly the Fishery the LVPA. The intent of the rule was to Administrator for Fisheries finds good
Management Plan for Pelagic Fisheries improve the viability of the American cause to waive the 30-day delayed
of the Western Pacific Region (FMP). In Samoa longline fishery and achieve effectiveness period, as provided by 5
2002, in response to a recommendation optimum yield, while preventing U.S.C. 553(d)(3), finding that such delay
from the Council, NMFS implemented a overfishing in accordance with National would be contrary to the public interest
measure under the FMP that prohibited Standard 1 of the Magnuson-Stevens because the measures contained in this
certain vessels from fishing for Pacific Fishery Conservation and Management rule are necessary to ensure that the
pelagic management unit species in Act (Magnuson-Stevens Act). You may fishery is conducted in compliance with
Federal waters from 3 nm to read more about the large vessel a Federal Court Order. On March 27,
approximately 30–50 nm around the exemptions to the LVPA in the 2015 2017, NMFS notified longline permit
islands of American Samoa (the Large proposed rule (80 FR 51527, August 25, holders of the Court Order, that the
Vessel Prohibited Area, LVPA). The area 2015) and 2016 final rule (81 FR 5619, exemption available to large longline
prohibition applied to vessels more than February 3, 2016). vessels no longer applies, and that they
50 ft in length overall that had not In July 2016, the Territory of may not fish within the boundaries of
landed pelagic management unit species American Samoa sued NMFS and the the LVPA.
in American Samoa under a Federal Council in the U.S. District Court for the Because this rulemaking is required
longline general permit prior to District of Hawaii (Territory of by Court Order, and prior notice and
November 13, 1997. The LVPA was American Samoa v. NMFS, et al. (D. HI) opportunity for public comment are not
intended to prevent the potential for Civil 16–00095), seeking to set aside the required under 5 U.S.C. 553, or any
gear conflicts and catch competition 2016 final rule. The Territory claimed other law, the regulatory flexibility
between large and small vessels. At the that NMFS did not consider, as other analysis requirements of the Regulatory
sradovich on DSKBBY8HB2PROD with RULES

time, the Council and NMFS felt that applicable law, the 1900 and 1904 Flexibility Act, 5 U.S.C. 603–605, do not
such conflicts and competition could Deeds of Cession with respect to the apply to this rule. Accordingly, no
have led to reduced opportunities for protection of the cultural fishing rights regulatory flexibility analysis is required
sustained participation by residents of of the people of American Samoa. and none has been prepared.
American Samoa in the small-scale On March 20, 2017, the U.S. District In addition, because the changes
pelagic fishery. You may read more Court for the District of Hawaii held required by the Court Order that are
about the establishment of the LVPA in that, because NMFS did not consider identified in this rule are non-

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

$Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 43909 discretionary, the National Dated: September 14, 2017. PART 665—FISHERIES IN THE Environmental Policy Act does not Samuel D. Rauch III, WESTERN PACIFIC apply to this rule. Deputy Assistant Administrator for Regulatory Programs, National Marine ■ 1. The authority citation for 50 CFR List of Subjects in 50 CFR Part 665 part 665 continues to read as follows: Fisheries Service. Administrative practice and Authority: 16 U.S.C. 1801 et seq. For the reasons set out in the procedure, American Samoa, Fisheries, preamble, NMFS amends 50 CFR part § 665.818 [Amended] Fishing, Reporting and recordkeeping 665 as follows: ■ 2. In § 665.818, remove and reserve requirements. paragraph (b). [FR Doc. 2017–19982 Filed 9–19–17; 8:45 am] BILLING CODE 3510–22–P sradovich on DSKBBY8HB2PROD with RULES VerDate Sep<11>2014 17:10 Sep 19, 2017 Jkt 241001 PO 00000 Frm 00083 Fmt 4700 Sfmt 9990 E:\FR\FM\20SER1.SGM 20SER1$

Document Created: 2018-10-24 14:22:15
Document Modified: 2018-10-24 14:22:15

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective September 20, 2017.
Contact		Bob Harman, NMFS PIRO Sustainable Fisheries, 808-725-5170.
FR Citation		82 FR 43908
RIN Number		0648-BG79
CFR Associated		Administrative Practice and Procedure; American Samoa; Fisheries; Fishing and Reporting and Recordkeeping Requirements

82 FR 43908 - 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

DEPARTMENT OF COMMERCENational Oceanic and Atmospheric Administration

Federal Register Volume 82, Issue 181 (September 20, 2017)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration