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FR Notice – Exemption for Large US Longline Vessels to Fish in Portions of the American Samoa Large Vessel Prohibited Area, Final Rule (July 9, 2021)

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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

Final rule

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.

Effective July 6, 2021.

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, 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.

Bob Harman, NMFS PIRO Sustainable Fisheries, 808–725–5170

To read the complete FR Notice click here

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