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

index to inform EMSY is ongoing. NMFS primary directed fishery when the DEPARTMENT OF COMMERCE has not yet determined whether, based biomass drops below this level, is to on that paper, a change in how EMSY is protect the stock when biomass is low National Oceanic and Atmospheric calculated is necessary for management and provide a buffer of spawning stock Administration purposes. NMFS will continue to that is protected from fishing and can examine whether this new publication contribute to rebuilding the stock. A 50 CFR Part 665 warrants a change in management; delay of a full 30 days in the date of [Docket No. 210701–0142] however, at this time NMFS has effectiveness for this rule would result RIN 0648–BK28 determined that the reference points set in the re-opening of the primary through this action are based on the best directed commercial fishery on July 1. scientific information available. Pacific Island Fisheries; Exemption for Regarding recent Council discussions Delaying the effective date of this rule Large U.S. Longline Vessels To Fish in Portions of the American Samoa Large related to EMSY, NMFS notes that the much beyond July 1 would be contrary Council’s SSC—the scientific advisory to the public interest because it would Vessel Prohibited Area; Court Order body that is responsible for jeopardize the sustainability of the AGENCY: National Marine Fisheries recommending changes to EMSY—has Pacific sardine stock. Furthermore, most Service (NMFS), National Oceanic and the ability to recommend changes to affected fishermen are aware that the Atmospheric Administration (NOAA), EMSY at any time, and it has not Council recommended that primary Commerce. determined that a change is necessary at directed commercial fishing be ACTION: Final rule. this time. The Council’s SSC previously prohibited for the 2021–2022 fishing made such a recommendation in 2014 year, and are fully prepared to comply SUMMARY: NMFS implements a when it recommended that NMFS with the prohibition. regulatory exemption that allows certain switch from using the 3-year average of U.S. longline vessels 50 ft (15.2 m) and This final rule is exempt from review Scripps Institution of Oceanography larger (‘‘large longline vessels’’) to fish (SIO) sea surface temperature under Executive Order 12866. in portions of the American Samoa measurements to using the 3-year The Chief Counsel for Regulation of Large Vessel Prohibited Area (LVPA). average of CalCOFI sea surface the Department of Commerce certified The intent is to comply with a U.S. temperature measurements to inform to the Chief Counsel for Advocacy of the Ninth Circuit Court of Appeals decision EMSY. In 2014 the SSC also Small Business Administration during and Order that reversed a district court recommended an interim measure of a the proposed rule stage that this action ruling that had vacated and set aside the static EMSY of 18 percent until that would not have a significant economic exemption. change, from SIO to CalCOFI, could be impact on a substantial number of small DATES: Effective July 6, 2021. adopted after being properly analyzed. entities for the purposes of the FOR FURTHER INFORMATION CONTACT: Bob Classification Regulatory Flexibility Act. The factual Harman, NMFS PIRO Sustainable Pursuant to section 304(b)(1)(A) of the basis for the certification was published Fisheries, 808–725–5170. MSA, the NMFS Assistant in the proposed rule and is not repeated SUPPLEMENTARY INFORMATION: NMFS and Administrator has determined that this here. As a result, a regulatory flexibility the Western Pacific Fishery final rule is consistent with the CPS analysis was not required, and none was Management Council (Council) manage FMP, other provisions of the MSA, and prepared. pelagic fisheries in the U.S. Pacific other applicable law. Pursuant to Executive Order 13175, Islands under the Fishery Ecosystem The need to implement these this rule was developed after Plan for Pelagic Fisheries of the Western measures in a timely manner to ensure meaningful consultation and Pacific Region. In 2016, NMFS published a final rule (81 FR 5619, they are in place as soon as possible collaboration with the Council’s tribal after the start of the fishing season, July February 3, 2016) that allowed U.S. representative, who has agreed with the 1, 2021, constitutes good cause under longline vessels greater than 50 feet that provisions that apply to tribal vessels. authority contained in 5 U.S.C. hold a Federal American Samoa 553(d)(3), to establish an effective date This action does not contain a longline limited entry permit to fish less than 30 days after date of collection-of-information requirement within the LVPA to within about 12–17 publication. In accordance with the for purposes of the Paper Reduction Act. nm (22–31 km) from shore around FMP, this rule was recommended by the There are no relevant Federal rules that Swains Island, Tutuila, and the Manua Council at its meeting in April 2021, the may duplicate, overlap, or conflict with Islands. Large longline vessels contents of which were based on the the action. continued to be restricted from fishing best available new information on the within the remaining portions of the Authority: 16 U.S.C. 1801 et seq. population status of Pacific sardine that LVPA. The intent of the rule was to became available at that time. Making Dated: July 6, 2021. improve the viability of the American these final specifications effective as Samuel D. Rauch, III, Samoa longline fishery and achieve soon as possible after July 1, the first Deputy Assistant Administrator for optimum yield, while preventing day of the fishing year, is necessary for Regulatory Programs, National Marine overfishing in accordance with National the conservation and management of the Fisheries Service. Standard 1 of the Magnuson-Stevens Pacific sardine resource because last [FR Doc. 2021–14643 Filed 7–6–21; 4:15 pm] Fishery Conservation and Management year’s restrictions on harvest are not BILLING CODE 3510–22–P Act (Magnuson-Stevens Act). Additional effective after June 30. The FMP information about the LVPA exemptions requires a prohibition on primary is available in the proposed rule (80 FR directed fishing for Pacific sardine for 51527, August 25, 2015) and final rule. the 2021–2022 fishing year because the In July 2016, the Territory of sardine biomass has dropped below the American Samoa sued NMFS in the U.S. CUTOFF. The purpose of the CUTOFF District Court for the District of Hawaii in the FMP, and for prohibiting a (Territory of American Samoa v. NMFS,

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et al. (D. HI) Civil 16–00095), seeking to and contrary to the public interest, as Authority: 16 U.S.C. 1801 et seq. set aside the 2016 final rule. The provided by 5 U.S.C. 553(b)(B). This ■ Territory claimed that NMFS did not action reinstates an exemption that was 2. In § 665.818, add paragraph (b) to consider, as other applicable law, the implemented by prior rulemaking, read as follows: 1900 and 1904 Cessions with respect to including the opportunity for notice and § 665.818 Exemptions for American Samoa the protection of cultural fishing rights comment, and that was set aside by a large vessel prohibited areas. of the people of American Samoa. On district court. That district court March 20, 2017, the U.S. District Court decision has been reversed by the Ninth * * * * * for the District of Hawaii held that the Circuit Court of Appeals. NMFS does (b) Exemption for vessel size. Except 2016 final rule was arbitrary and not have discretion to take other action, as otherwise prohibited in subpart I of capricious because NMFS did not as there is no alternative to complying this part, a vessel of any size that is consider whether the rule and its with the requirements of the Ninth registered for use with a valid American impacts on cultural fishing were Circuit Order. Samoa longline limited access permit is consistent with the Cessions. On August Furthermore, the Assistant authorized to fish for western Pacific 10, 2017, the U.S. District Court denied Administrator for Fisheries finds good pelagic MUS within the American Defendants’ Motion for Reconsideration cause to waive the 30-day delayed Samoa large vessel prohibited areas as of this decision. Accordingly, NMFS effectiveness period, as provided by 5 defined in § 665.806(b), except that no U.S.C. 553(d)(3), finding that such delay published a final rule (82 FR 43908, large vessel as defined in § 665.12 may would be contrary to the public interest September 20, 2017) that removed the be used to fish for western Pacific because the measures contained in this regulatory exemption that allowed large pelagic MUS in the portions of the vessels to fish within certain areas of the rule are necessary to ensure that the fishery is conducted in compliance with American Samoa large vessel prohibited LVPA. areas, as follows: NMFS appealed the district court the Ninth Circuit Order. decision to the U.S. Court of Appeals for Because this rulemaking is required (1) EEZ waters around Tutuila Island the Ninth Circuit (Territory of American by a Ninth Circuit Order, and prior enclosed by straight lines connecting Samoa v. NMFS et al., No. 17–17081 notice and opportunity for public the following coordinates (the datum for (9th Cir.)). On September 25, 2020, a 9th comment are not required under 5 these coordinates is World Geodetic Circuit Court panel unanimously held U.S.C. 553, or any other law, the System 1984 (WGS84)): that NMFS had properly considered the regulatory flexibility analysis impact of the 2016 LVPA rule on requirements of the Regulatory Point S. lat. W. long. cultural fishing and fishing Flexibility Act, 5 U.S.C. 603–605, do not communities, regardless of whether it apply to this rule. Accordingly, no TU–1 ...... 14°01′42″ 171°02′36″ ° ′ ″ ° ′ ″ specifically considered the Cessions. regulatory flexibility analysis is required TU–2 ...... 14 01 42 170 20 22 ° ′ ″ ° ′ ″ American Samoa subsequently filed a and none has been prepared. TU–3 ...... 14 34 31 170 20 22 In addition, because the changes ° ′ ″ ° ′ ″ petition for a writ of certiorari, which on TU–4 ...... 14 34 31 171 03 10 required by the Ninth Circuit Order ° ′ ″ ° ′ ″ June 21, 2021, the Supreme Court TU–5 ...... 14 02 47 171 03 10 identified in this rule are non- ° ′ ″ ° ′ ″ denied. Pursuant to the 9th Circuit TU–1 ...... 14 01 42 171 02 36 discretionary, the National Court mandate on November 17, 2020, Environmental Policy Act does not this final rule reinstates the LVPA (2) EEZ waters around the Manua apply to this rule. exemptions established in the 2016 final This final rule contains no Islands enclosed by straight lines rule (81 FR 5619, and codified at 50 CFR information collection requirements connecting the following coordinates 665.818(b)). This rule allows U.S. large under the Paperwork Reduction Act of (WGS84): longline vessels that hold a Federal 1995. American Samoa longline limited entry This final rule has been determined to Point S. lat. W. long. permit to fish within the LVPA to be not significant for purposes of MA–1 ...... 13°57′16″ 169°53′37″ approximately 12–17 nm from the Executive Order 12866. shoreline around Swains Island, MA–2 ...... 13°57′16″ 169°12′45″ Tutuila, and the Manua Islands. All List of Subjects in 50 CFR Part 665 MA–3 ...... 14°28′28″ 169°12′45″ ° ′ ″ ° ′ ″ other provisions applicable to the Administrative practice and MA–4 ...... 14 28 28 169 53 37 ° ′ ″ ° ′ ″ fishery remain unchanged. procedure, American Samoa, Fisheries, MA–1 ...... 13 57 16 169 53 37 Fishing, Reporting and recordkeeping Classification requirements. (3) EEZ waters around Swains Island NMFS is issuing this rule pursuant to Dated: July 6, 2021. enclosed by straight lines connecting 305(d) of the Magnuson-Stevens Act the following coordinates (WGS84): because this action is necessary to carry Samuel D. Rauch III, Deputy Assistant Administrator for out the Ninth Circuit Order. The Point S. lat. W. long. Assistant Administrator for Fisheries Regulatory Programs, National Marine Fisheries Service. has determined that this final rule is ° ′ ″ ° ′ ″ For the reasons set out in the SW–1 ...... 10 50 42 171 17 42 consistent with the Ninth Circuit Order, SW–2 ...... 10°50′42″ 170°51′39″ preamble, NMFS amends 50 CFR part ° ′ ″ ° ′ ″ the Fishery Ecosystem Plan for Pelagic 665 as follows: SW–3 ...... 11 16 08 170 51 39 Fisheries of the Western Pacific, and SW–4 ...... 11°16′08″ 171°17′42″ other applicable law. PART 665—FISHERIES IN THE SW–1 ...... 10°50′42″ 171°17′42″ The Assistant Administrator for WESTERN PACIFIC Fisheries finds good cause to waive [FR Doc. 2021–14623 Filed 7–6–21; 4:15 pm] notice and public comment on this ■ 1. The authority citation for 50 CFR BILLING CODE 3510–22–P action because it would be unnecessary part 665 continues to read as follows:

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