[Federal Register Volume 70, Number 99 (Tuesday, May 24, 2005)]
[Rules and Regulations]
[Pages 29646-29657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10351]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 040628196-5130-02; I.D. 061704A]
RIN 0648-AQ92
Fisheries Off West Coast States and in the Western Pacific;
Western Pacific Pelagic Fisheries; American Samoa Longline Limited
Entry Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 11 to the
Fishery Management Plan for Pelagic Fisheries of the Western Pacific
Region (Amendment 11), which establish a limited entry system for
pelagic longline vessels fishing in waters of the U.S. exclusive
economic zone (EEZ) around American Samoa. The action is necessary to
effectively manage the pelagics fisheries around American Samoa. This
final rule is intended to establish management measures that would
stabilize effort in the fishery to avoid a ``boom and bust'' cycle of
fishery development that could disrupt community participation and
limit opportunity for substantial participation in the fishery by
indigenous islanders.
DATES: Effective August 1, 2005, except Sec. Sec. 660.21(c),
660.22(e),(f),and (g), which are effective December 1, 2005.
ADDRESSES: CD or paper copies of Amendment 11, including an
Environmental Assessment (EA), regulatory impact review (RIR) and final
regulatory flexibility analysis (FRFA) may be obtained from Kitty M.
Simonds, Executive Director, Western Pacific Fishery Management Council
(Council), 1164 Bishop Street, Suite 1400, Honolulu, HI 96813. These
documents are also available at the following website: http://www.wpcouncil.org. Comments regarding the burden-hour estimates or
other aspects of the collection-of-information requirements contained
in this final rule may be submitted in writing to William L. Robinson,
Regional Administrator, Pacific Islands Region (PIR), NMFS, 1601
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814, and David Rostker,
OMB, by email at [email protected], or facsimile (Fax) 202-
395-7285.
FOR FURTHER INFORMATION CONTACT: Alvin Katekaru, NMFS PIR, at 808-973-
2937.
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the internet
at the website of the Office of Federal Register: http://www.access.gpo.gov/sudocs/aces/aces140.html.
Background
On July 22, 2004, NMFS published a proposed rule (69 FR 43389) that
would establish a limited access permit program for the pelagic
longline fishery based in American Samoa under Amendment 11. Amendment
11 was approved by the Secretary of Commerce on September 23, 2004. The
final rule is intended to: (1) Avoid a ``boom and bust'' cycle of
fishery development that could disrupt community participation in the
American Samoa small-scale pelagic fishery; (2) establish a framework
to adjust regulations for the American Samoa-based longline fishery;
(3) reduce the potential for fishing gear conflict in waters of the EEZ
around American Samoa; (4) maintain local catch rates of albacore tuna
at economically viable levels; and (5) provide an opportunity for
substantial participation by indigenous islanders in the large vessel
sector of the fishery. This final rule applies specifically to the
permitted owners and operators of vessels that fish for pelagic
management species under Hawaii limited access longline permits or
western Pacific general longline permits within the EEZ, as well as the
high seas, around American Samoa, and generally to permitted owners and
operators of vessels fishing for pelagic management species in the
western Pacific region (the Northern Mariana Islands; Guam; Hawaii;
Midway, Johnston, and Palmyra Atolls, Kingman Reef, and Wake, Jarvis,
Baker, and Howland Islands).
The following is a summary of key measures in this final rule
implementing Amendment 11. Initial American Samoa longline limited
access permits will be issued to qualifying individuals who owned
vessels that were used to legally harvest Pacific pelagic management
unit species with longline gear in the EEZ around American Samoa (with
those fish landed in American Samoa) prior to March 22, 2002. An
individual who had provided written notice to NMFS or the Council of
intent to participate in the fishery prior to June 28, 2002, would also
qualify for an initial limited access permit. NMFS will publish a
notice in the Federal Register to solicit
[[Page 29647]]
participation in the program and establish a mailing list, as one of
the means, to notify prospective applicants of the availability of
permits. American Samoa limited access longline permits are established
for four categories based on vessel length: (a) Class A--less than or
equal to 40 ft (12.2 m); (b) Class B--over 40 ft (12.2 m) to 50 ft
(15.2 m) inclusive; (c) Class C--over 50 ft (15.2 m) to 70 ft (21.3 m)
inclusive; and (d) Class D--over 70 ft (21.3 m). The rule sets a
schedule of 120 days for a permittee to register his or her vessel for
use with a American Samoa longline limited access permit. The rule also
allows for 26 ``upgrade permits'' to be made available, following the
issuance of initial limited access permits, for the exclusive use of
permit holders in the smallest vessel size class (less than or equal to
40 ft (12.2 m)), with priority based on documented historical
participation in the fishery. Those receiving ``upgrade permits'' are
not allowed to transfer their new permits for 3 years. All other
permits are transferable to individuals who can document (regardless of
date) that they worked on a vessel that caught Pacific pelagic
management species on longline gear in the EEZ around American Samoa,
with those fish landed in American Samoa. This rule also: prohibits any
individual from owning more than 10 percent of the maximum permits
allowed (in all vessel size classes combined), with any fractional
interest in a permit counted as a whole permit; establishes an
administrative fee for the issuance, renewal, or transfer of any
permit; requires documented landings of at least 1,000 lb (455 kg) of
Pacific pelagic management unit species during every 3 consecutive
calendar years for vessels in the smaller vessel size classes (Class A
and B), and at least 5,000 lb (2,273 kg) every 3 consecutive calendar
years for vessels in the two larger vessel size classes (Class C and D)
in order to renew permits; requires all vessels permitted under the
limited access system that are 50 ft (15.2 m) in length or greater to
carry active vessel monitoring systems (VMS), if requested by NMFS;
requires vessels greater than 40 ft (12.2 m) in length to carry
observers, if requested by NMFS; and requires operators of permitted
vessels greater than 40 ft (12.2 m) in length to notify NMFS no less
than 72 hours before embarking on a longline fishing trip.
Additional background information on this final rule may be found
in the preamble to the proposed rule (69 FR 43389, July 22, 2004) and
is not repeated here.
Comments and Responses
NMFS received two sets of comments on the proposed rule. NMFS
responds to these comments as follows:
Comment 1: Local fishermen should be allowed to have most of the
fish catch (but also that longline gear should be banned immediately),
not ``profiteers coming with their big money, big boats'' from other
areas.
Response: Two objectives of Amendment 11 relate to continued
participation of American Samoan communities and opportunities for
sustained future participation by indigenous American Samoans in the
domestic longline fishery. Several provisions of the American Samoa
limited access permit program help to achieve these objectives,
including the eligibility requirements for initial permits (requiring
historical participation in the fishery), restrictions on permit
transferability, and permit upgrade provisions. The final regulations
implementing Amendment 11 therefore ensure that local, indigenous
fishermen and their communities are afforded opportunities to
participate in the American Samoa pelagic longline fishery. No changes
have been made to the rule as a result of this comment.
Comment 2: The control date for eligibility for initial limited
access permits should have been in 2000, rather than 2002.
Response: In recommending control date(s) for initial permit
eligibility, the Council attempted to balance the need to place
effective limits on fishing effort and to minimize adverse impacts on
current fishery participants. Although a control date in 2000 would
have resulted in a smaller number of available permits, NMFS finds that
the 2002 control dates (March 22 and June 28, 2002) will provide an
adequately conservative limit. No changes have been made to the rule as
a result of this comment.
Comment 3: No vessel upgrade permits should be provided.
Response: The purpose of providing permit upgrades is, in part, to
help achieve the objectives of ensuring opportunities for substantial
future participation by indigenous American Samoans, maintaining
sustained community participation, and minimizing adverse impacts on
communities. Although the permit upgrades will allow fishing effort of
the longline limited access fleet to increase from its initial level,
the magnitude of that increase will be restricted by the limits on the
number of available upgrade permits (26) and the period within which
they must be used. NMFS finds that the potential growth in the fleet's
fishing effort is not excessive and that it is appropriate given
economic, social, and cultural considerations. No changes have been
made to the rule as a result of this comment.
Comment 4: No individual should own more than two percent of the
boats.
Response: The rule would limit the number of permits held by any
single permit holder to 10 percent of the total. NMFS finds that this
limit is appropriate for the purpose of preventing excessive
concentration of permit ownership. No changes have been made to the
rule as a result of this comment.
Comment 5: The fee for a permit should be $500 initially, and
possibly raised later.
Response: The fee amount for limited access permits under this rule
is in accord with the Magnuson-Stevens Fishery Conservation Management
Act (Magnuson-Stevens Act), which does not allow NMFS to collect
permit-related fees in excess of the costs for administering the
permits program. Permit application fees for fisheries in the western
Pacific region are commensurate with the administrative costs of
processing permit applications (which are currently estimated to be
less than $100 per year). The fee amount for processing an American
Samoa longline limited access permit will be determined in accordance
with NOAA's Financial Handbook, as is the case for fees established for
other western Pacific fishing permits. No changes have been made to the
rule as a result of this comment.
Comment 6: In Amendment 11, ``economics should be downgraded in
these deliberations and proposals and environmental considerations
should be paramount.
Response: The Council and NMFS considered both environmental and
economic factors in the development of Amendment 11 and its
implementing regulations, as required by the Magnuson-Stevens Act, the
Regulatory Flexibility Act, Executive Order 12866, and the National
Environmental Policy Act. NMFS believes that the final rule is based on
a thorough consideration of all relevant factors and that it would
achieve both the environmental and economic objectives of Amendment 11.
No changes have been made to the rule as a result of this comment.
Comment 7: It is time to start assessing heavy fines on those who
violate Federal fishery regulations; and fees for violations should
start at a minimum of $5,000.
[[Page 29648]]
Response: This rule does not establish fine levels. That said, NMFS
recognizes the need to ensure compliance with fishery regulations
established under the Magnuson-Stevens Act. Procedures for assessing
civil penalties for those who violate federal fishery regulations,
including those governing the pelagic longline fishery in American
Samoa, are found in NOAA's Civil Procedure regulations (15 CFR part
904). Maximum civil penalty amounts are established by statute. The
penalty in any particular case is assessed after consulting NOAA's
civil administrative penalty schedule. Consideration is given to many
factors including, but not limited to, a fisherman's ability to pay the
fine, the severity of the violation based on its impact on the
resource, and whether or not the fisherman has prior violations. While
enforcement priorities exist, and may vary by region, NOAA is committed
to a comprehensive program of enforcing all of the statutes it
administers. Funding for enforcement of these statutes, and any of the
implementing regulations, is by statutory appropriation. No changes
have been made to the rule as a result of these comments.
Comment 8: Consistent with the Pew Foundation Report, overfishing
should be stopped; fishing quotas are set too high and should be cut by
50 percent initially (and 10 percent each year thereafter); marine
sanctuaries should be established ``where no fish can be touched by
human hands.''
Response: NMFS is cognizant of the recommendations in the Pew
Foundation Report in the context of the broad issues raised by the
commenter, including overfishing. Overfishing of target management unit
species is not occurring in the American Samoa-based pelagic longline
fishery. NMFS is confident that Amendment 11 will help prevent
overfishing in the fishery or the need for quotas.
Concerning marine sanctuaries, NOAA manages a National Marine
Sanctuary in Fagatele Bay in American Samoa to protect and conserve
marine resources, including fish. Establishment of marine sanctuaries
by NOAA is undertaken pursuant to the National Marine Sanctuaries Act,
not the Magnuson-Stevens Act under which these fishing regulations are
implemented. No changes have been made to the rule as a result of these
comments.
Changes to the Proposed Rule
In Sec. 660.13, paragraphs (c)(1),(2) and (d) are revised to
clarify certain requirements pertaining to permit application and
change in application information, respectively. Paragraph (c)(1) is
revised to clearly indicate that the Pacific Islands Regional Office is
the source of Western Pacific permit application forms and the
receiving office for permit applications. Paragraph (c)(2) is revised
to clearly indicate that a ``deficiency'' in permit application, filed
with NMFS, means an application that is incomplete, including an
application that is improperly completed, resulting in NMFS notifying
the permit applicant of the deficiency. Paragraph (d) specifies when
all western Pacific fishing permit applicants and permit holders, must
notify NMFS if there are any changes to the information in their permit
application or vessel documentation previously provided to NMFS, and
removes the previous deadline for American Samoa longline limited
access permit applicants to notify NMFS within 30 days if there is a
complete change in ownership. The 30 day deadline applies to changes of
information after permits have been issued, not during the initial
application process.
In Sec. 660.21, paragraph (n)(1), clarification is provided on the
criteria to be used in reviewing permit appeals concerning longline
limited access permits, i.e., under subpart C of 50 CFR 660. The new
language also claries that the Regional Administrator ``will'' review
relevant portions of the Pelagics FMP (to the extent such review would
elucidate the criteria established for permit qualifications and
renewals) in rendering a decision.
In Sec. 660.23, paragraph (c), the last sentence was revised to be
consistent with the statutory and regulatory citations from the end of
Sec. 660.13(d).
In Sec. 660.36, paragraph (b)(1), governing documented
participation in the American Samoa longline limited access fishery,
flexibility is provided in the kinds of documentation that may be
accepted by NMFS in determining qualification for an American Samoa
longline limited access permit. In paragraph (b)(1)(ii), a provision is
inserted so that a permit applicant may request NMFS to obtain copies
of official government records (e.g., creel survey record or logbook)
from its files or from the appropriate agency of the Government of
American Samoa demonstrating evidence of the applicant's work on a
fishing trip. NMFS will undertake the requested action if the permit
applicant does not possess copies of the government records. In
paragraph (f), required documentation of vessel ownership and/or
participation in the fishery, as part of a complete permit application,
is clarified. Paragraphs (f)(3) and (g)(3) establish that the Assistant
Regional Administrator for Sustainable Fisheries, rather than the
Regional Administrator, shall decide the eligibility for initial and
additional permit issuance inasmuch as the Regional Administrator
serves as the appeals officer involving disputes and challenges
determination of eligibility for issuance of American Samoa longline
limited access permits. Paragraph (j)(2) is removed because the
requirement for annual protected species workshop certification by
vessel owners and operators is included in a separate regulatory
amendment that would revise 50 CFR 660.34 (Protected species workshops)
proposed by the Council on additional sea turtle mitigation measures
under the Pelagics FMP for western Pacific pelagic fisheries, which
include the American Samoa-based pelagic longline limited access
fishery.
Classification
The Administrator, Pacific Islands Region, NMFS, determined that
Amendment 11 is necessary for the conservation and management of the
pelagic fisheries of the western Pacific region and that it is
consistent with 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 potential economic impacts of this final rule on small entities
were identified in an Initial Regulatory Flexibility Analysis (IRFA)
and summarized in a Federal Register notice published July 22, 2004 (69
FR 43789). A FRFA was subsequently prepared. A description of the need
for the rule and its objectives is contained at the beginning of this
section in the preamble and in the SUMMARY section of the preamble. No
public comment was made specifically on the IRFA, but two sets of
comments about the economic effects of the rule were received. Those
comments, NMFS' responses to those comments, and a statement of the
changes made as a result of the comments are presented above. A summary
of the remaining parts of the FRFA follows.
Entities to which the final rule will apply include all prospective
participants in the pelagic longline fishery in the EEZ around American
Samoa, which includes past, present, and additional prospective future
participants. Based on fishing information and/or vessel ownership
records available from the Government of American Samoa, NMFS
anticipates that 138 entities that owned active longline vessels prior
to the control date
[[Page 29649]]
of March 21, 2002, will be eligible for limited access permits. Of
those 138 entities, NMFS believes that approximately 75 will actually
apply for and receive initial permits. Of the 138 vessels associated
with these entities prior to March 21, 2002, it is believed that 93
vessels were less than or equal to 40 ft (12.2 m) in length, 9 were
greater than 40 ft (12.2 m) ranging up to 50 ft (15.2 m) in length
inclusive, 15 were greater than 50 ft (15.2 m) ranging up to 70 ft
(21.3 m) in length inclusive, and 21 were greater than 70 ft (21.3 m)
in length. The current average capital investment in vessels less than
40 ft (12.2 m) is estimated to be between $25,000 and $125,000, with
annual landings of approximately 50,000 lbs (22,680 kg) and annual ex-
vessel revenues estimated to average $65,000. These are typically
catamaran style vessels that average 50-100 one to two day fishing
trips annually. These vessels are permanently based in American Samoa
and may have been used to pelagic handline or troll in the past.
Longline vessels greater than 40 ft (12.2 m) are typically monohull
vessels with a current average capital investment of up to $400,000.
These vessels take 17 to 28 fishing trips annually, with trips
extending from 4 to 25 days. Annual landings for these vessels range
from 200,000 lb to 600,000 lb (90,909.1 kg - 272,727.3 kg) per vessel,
with an ex-vessel revenue of $220,000 to $660,000. These vessels are
currently based in American Samoa, and have also been used in other
Pacific pelagic longline or jig fisheries. Based on their ex-vessel
revenues, all of these entities are considered to be small businesses
with annual revenues of less than $3.5 million each.
This final rule requires that vessels greater than 40 feet (12.2 m)
in length carry a NMFS-trained observer if directed by NMFS. Potential
costs of this requirement include the reduced accommodations available
for crew and, depending on the size of the vessel, the cost of reduced
fishing efficiency as a result of a reduction in crew size and crowding
on board the vessel.
Under the final rule, the prospective fishery participants will be
required to submit applications to NMFS Pacific Islands Regional Office
for permits to participate in the American Samoa-based limited access
longline fishery. Documentation of vessel ownership and/or
participation in the fishery will be required with permit applications
for post-initial permits (i.e., permits applied for after the initial
issuance of permits upon establishment of the limited access permit
program), upgrade permits (i.e., the limited number of transfers to
larger vessel size classes that will be available to permit holders
starting in the smallest size class), and permit transfers. As such,
this final rule contains several collection-of-information requirements
subject to Paperwork Reduction Act (PRA). These requirements have been
approved by OMB. The approved collection-of-information burden to
fishermen is estimated at 60 hours annually or a total of 181 hours:
112 hours for initial permits, 20 hours for appeals, 49 hours for
permit upgrades and transfers for a 3-year period during which longline
limited access permits are valid (until 2007 or 2008). Clearance for
collection-of-information concerning permit renewals will be addressed
at a later date, prior to expiration of the current collection-of-
information (OMB No. 0648-0490) on December 31, 2006.
Besides the collection-of-information requirement associated with
the limited access permit program, this final rule requires operators
of large (greater than 40 ft (12.2 m) in length) fishing vessels
registered with American Samoa longline limited access permits to
notify NMFS at least 72 hours prior to leaving port on a longline
fishing trip targeting Pacific pelagic management unit species in the
EEZ around American Samoa. Notification is necessary for NMFS to
determine whether or not observers should be placed on these large
vessels. It is estimated that the time required by a vessel operator to
notify NMFS prior to each trip is 3 minutes per telephone call. The
collection-of-information burden to fishermen is estimated at 68 hours
annually, an addition to the currently approved collection under OMB
No. 0648-0214.
This final rule requires vessels greater than 50 ft (15.2 m) in
length and registered with American Samoa longline limited access
permits to carry vessel monitoring system (VMS) units, if directed to
do so by NMFS. While the vessel is at sea, NMFS will receive from the
VMS unit information on the position of the vessel. NMFS uses the
reports to monitor vessel location and activities while enforcing the
established large-vessel pelagic fishing area closure around American
Samoa. NMFS intends to pay for the installation and maintenance of the
VMS units. It is estimated that the annual burden to fishermen of this
new collection of information is 167 hours. This includes the time to
observe the installation and maintenance of the VMS units. Since the
VMS units transmit reports automatically, there is no requirement for
the fishermen themselves to report to NMFS on the location of their
vessels while at sea. This collection is approved under OMB No. 0648-
0519.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
NMFS considered a range of alternatives to this final rule, some of
which would have smaller economic impacts on small entities than the
rule. Ten alternatives, including the preferred alternative, were
considered. The alternatives included various combinations of measures
that addressed: (1) how longline fishing effort in the EEZ around
American Samoa would be limited (including no-action, establishing a
limited access program, and establishing a per-trip landing limit of
5,000 lb (2,688 kg)); (2) whether operators of longline vessels in the
EEZ around American Samoa would be required to land all captured
pelagic management unit species (PMUS) in order to minimize bycatch;
(3) whether longline vessels greater than 50 ft (15.2 m) in length
would be required to carry and operate a transmitter as part of a
vessel monitoring system (VMS); and (4) whether longline vessels
greater than 40 ft (12.2 m) in length would be required to carry a
vessel observer if directed by NMFS.
For those alternatives that would establish a limited access
program, the combinations of measures further addressed: (a) What the
limit on permits would be (ranging from 106 to 215 total permits, as
well as one alternative in which the initial number of available
permits would be equal to the number of individuals with historical
experience in the fishery, but, after allowing the fleet size to
decrease through attrition, the number of available permits would
ultimately be limited to the number of permits predicted to result in
an annual fishing effort level of no more than 7.15 million hooks in
the nearshore area (within 50 nautical miles (nm) of shore) and 14.3
million hooks in the offshore area (beyond 50 nm from shore); (b) how
the limited number of permits would be allocated among vessel size
classes (with various allocations among four or five vessel size
classes, with zero permits available for vessels greater than 100 ft
(30.5 m)in length in all but two alternatives); (c) how the available
permits would be initially allocated (including allowing initial entry
only to individuals that held a longline permit and landed PMUS in
American Samoa prior to March 21, 2002, allowing initial
[[Page 29650]]
entry only to individuals that owned a longline vessel on March 21,
2002, that was used to harvest PMUS from the EEZ around American Samoa
and land them in American Samoa prior to March 21, 2002, and allowing
entry only to individuals that owned a longline vessel on or before
March 21, 2002, that was used to harvest PMUS from the EEZ around
American Samoa and land them in American Samoa prior to March 21, 2002;
(d) how many permits would be reserved for participants indigenous to
American Samoa (ranging from zero to 100 percent of the permits for
certain vessel size classes); (e) how many permits would be reserved
for participants initially using vessels in the smallest size class
(ranging from zero to 26 ``upgrade'' permits that could be used by
holders of permits for the smallest size class to upgrade to permits
for larger size classes); (f) how available permits would be allocated
in the future (including giving priority according to the date of
application, giving priority according to the amount of historical
pelagic fishing based out of American Samoa, giving first priority to
permit holders wanting to upgrade to a larger vessel size class then
according to the amount of historical pelagic fishing based out of
American Samoa, giving priority first according to the vessel size
class (with smaller classes given higher priority) than according to
the earliest date of a longline landing in American Samoa); (g) whether
permits could be re-registered to replacement vessels (including
allowing re-registrations to vessels of any size class provided that a
permit in that size class is available and allowing re-registrations
only to vessels in the same size class); (h) whether maintenance of a
permit would be contingent on continued participation in the fishery
that is, whether there would be a ``use-it-or-lose-it'' requirement (in
all cases, yes, ranging from having to make a landing at least once
every year to at least once every three years, with various minimum
qualifying landing tonnages according to vessel size class); and (I)
whether permits would be transferable among holders (including not
allowing transfers, allowing transfers only by holders of permits for
the smallest vessel size class and only to immediate family or
community groups, allowing transfers only by indigenous holders of
permits for smallest size class and only to immediate family or
community groups, and in the case of ``upgrade'' permits, allowing
transfers only after three years).
NMFS' reasons for rejecting the significant alternatives are as
follows. The alternative with a per-trip landing limit of 5,000 lb
(2,688 kg) was rejected because it would likely result in poorer
economic performance than a limited access program and it would
encourage high-grading and bycatch. The alternatives that would require
that all captured PMUS be landed were rejected because they would be
economically inefficient. The alternatives that would not have required
that longline vessels greater than 50 ft (15.2 m) in length carry and
operate VMS transmitters or not require that longline vessels greater
than 40 ft (12.2 m) in length carry a vessel observer if directed by
NMFS were rejected because they would not ensure an adequately high
level of compliance with certain fishery regulations and not ensure
that adequate information about fishing activities is gathered. The
alternatives with larger permit limits than the preferred alternative
(including the no-action alternative) were rejected because they would
be unlikely to sufficiently reduce the potential for gear conflict and
catch competition. The alternatives with smaller permit limits than the
preferred alternative were rejected because they were determined to be
unfair to some prospective participants and socially unacceptable. The
alternatives with fewer permits allocated to the smallest vessel size
class than the preferred alternative, as well as those without
provisions for permit upgrades from the smallest to the larger vessel
size classes, those with a one-year rather than three-year use-it-or-
lose-it requirement, and those that would not have allowed permit
transfers, were rejected because they would be unlikely to maintain
sufficiently high levels of participation by American Samoa residents
and individuals who have traditionally operated smaller vessels.
Copies of the FRFA are available from the Council (see ADDRESSES).
To the extent practicable, it has been determined that there are no
Federal rules that may duplicate, overlap, or conflict with this rule.
A formal section 7 consultation under the Endangered Species Act
was undertaken for Amendment 11. In a biological opinion issued by NMFS
on February 23, 2004, it was determined that fishing activities
conducted under Amendment 11 and its implementing regulations are not
likely to jeopardize the continued existence of any endangered or
threatened species under the jurisdiction of NMFS or result in the
destruction or adverse modification of critical habitat.
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, and
Reporting and recordkeeping requirements.
Dated: May 19, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 660 is amended as
follows:
PART 660--FISHERIES OFF THE WEST COAST STATES AND IN THE WESTERN
PACIFIC
0
1. The authority citation for part 660 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 660.12, the definitions of ``Fisheries Management Division
(FMD)'', ``Longline general permit'', and ``Pacific Islands Area
Office'' are removed, the definition for ``Special Agent-In-Charge
(SAC)'' is revised, and new definitions for ``American Samoa longline
limited access permit'', ``American Samoa pelagics mailing list'',
``Freeboard'', ``Hawaiian Archipelago'', ``Pacific Islands Regional
Office (PIRO)'', ``Pacific Remote Island Areas (PRIA) pelagic troll and
handline fishing permit'', ``Western Pacific Fishery Management Area''
and ``Western Pacific general longline permit'' are added in
alphabetical order to read as follows:
Sec. 660.12 Definitions.
* * * * *
American Samoa longline limited access permit means the permit
required by Sec. 660.21 to use a vessel shoreward of the outer
boundary of the EEZ around American Samoa to fish for Pacific pelagic
management unit species using longline gear or to land or transship
Pacific pelagic management unit species that were caught in the EEZ
around American Samoa using longline gear.
American Samoa pelagics mailing list means the list maintained by
the Pacific Islands Regional Office of names and mailing addresses of
parties interested in receiving notices of availability for American
Samoa longline limited access permits.
* * * * *
Freeboard means the straight-line vertical distance between a
vessel's working deck and the sea surface. If the vessel does not have
gunwale door or stern door that exposes the working deck, freeboard
means the straight-line
[[Page 29651]]
vertical distance between the top of a vessel's railing and the sea
surface.
* * * * *
Hawaiian Archipelago means the Main and Northwestern Hawaiian
Islands, including Midway Atoll.
* * * * *
Pacific Islands Regional Office (PIRO) means the headquarters of
the Pacific Islands Region, NMFS, located at 1601 Kapiolani Blvd.,
Suite 1110, Honolulu, Hawaii 96814; telephone number (808) 973-2937.
* * * * *
Pacific Remote Island Areas (PRIA) pelagic troll and handline
fishing permit means the permit required by Sec. 660.21 to use a
vessel shoreward of the outer boundary of the EEZ around the PRIA to
fish for Pacific pelagic management unit species using pelagic handline
or troll fishing methods.
* * * * *
Special Agent-In-Charge (SAC) means the Special-Agent-In-Charge,
NMFS, Pacific Islands Enforcement Division, or a designee of the SAC,
located at 300 Ala Moana Blvd., Suite 7-118, Honolulu, Hawaii, 96850;
telephone number (808) 541-2727.
* * * * *
Western Pacific Fishery Management Area means those waters
shoreward of the outer boundary of the EEZ around American Samoa, Guam,
Hawaii, the Northern Mariana Islands, Midway, Johnston and Palmyra
Atolls, Kingman Reef, and Wake, Jarvis, Baker, and Howland Islands.
Western Pacific general longline permit means the permit authorized
under Sec. 660.21 to use a vessel shoreward of the outer boundary of
the EEZ around Guam, the Northern Mariana Islands, Johnston or Palmyra
Atolls, Kingman Reef, or Wake, Jarvis, Baker or Howland Islands to fish
for Pacific pelagic management unit species using longline gear or to
land or to transship Pacific pelagic management unit species that were
caught using longline gear.
0
3. In Sec. 660.13, paragraphs (c), (d), and (e), and the first and
last sentences of paragraph (f)(2) are revised to read as follows:
Sec. 660.13 Permits and fees.
* * * * *
(c) Application. (1) A Western Pacific Federal Fisheries Permit
Application Form may be obtained from the NMFS PIRO to apply for a
permit or permits to operate in any of the fisheries regulated under
subparts C, D, E, F, and J of this part. The completed application must
be submitted to PIRO. In no case shall PIRO accept an application that
is not on the Western Pacific Federal Fisheries Application Form.
(2) A minimum of 15 days after the day PIRO receives a complete
application should be allowed for processing a permit application for
fisheries under subparts C, D, E, and F of this part. A minimum of 60
days after the day PIRO receives a complete application should be
allowed for processing a permit application for fisheries under subpart
J of this part. If an incomplete or improperly completed application is
filed, the applicant will be sent a letter of notice of deficiency. If
the applicant fails to correct the deficiency within 30 days following
the date of the letter of notification of deficiency, the application
will be considered abandoned.
(d) Change in application information. Any change in the permit
application information or vessel documentation, submitted under
paragraph (c) of this section, must be reported to PIRO in writing
within 15 days of the change to avoid a delay in processing the permit
application. A minimum of 10 days from the day the information is
received by PIRO should be given for PIRO to record any change in
information from the permit application submitted under paragraph (c)
of this section. Failure to report such changes may result in a delay
in processing an application, permit holders failing to receive
important notifications, or sanctions pursuant to the Magnuson-Stevens
Act at 16 U.S.C. Sec. 1858(g) or 15 CFR part 904, subpart D.
(e) Issuance. After receiving a complete application, the Regional
Administrator will issue a permit to an applicant who is eligible under
Sec. Sec. 660.21, 660.36, 660.41, 660.61, 660.601, or 660.8, or
660.602 as appropriate.
(f) Fees.* * *
(2) PIRO will charge a fee for each application for a Hawaii
longline limited access permit, Mau Zone limited access permit, coral
reef ecosystem special permit, or a American Samoa longline limited
access permit (including permit transfers and renewals). * * * Failure
to pay the fee will preclude the issuance, transfer or renewal of a
Hawaii longline limited access permit, Mau Zone limited access permit,
coral reef ecosystem special permit, or an American Samoa longline
limited access permit.
0
4. Section 660.21 is revised to read as follows:
Sec. 660.21 Permits.
(a) A vessel of the United States must be registered for use with a
valid permit under the High Seas Fishing Compliance Act if that vessel
is used to fish on the high seas, as required under Sec. 300.15 of
this title.
(b) A vessel of the United States must be registered for use under
a valid Hawaii longline limited access permit if that vessel is used:
(1) To fish for Pacific pelagic management unit species using
longline gear in the EEZ around the Hawaiian Archipelago; or
(2) To land or transship, shoreward of the outer boundary of the
EEZ around the Hawaiian Archipelago, Pacific pelagic management unit
species that were harvested using longline gear.
(c) A vessel of the United States must be registered for use under
a valid American Samoa longline limited access permit, in accordance
with Sec. 660.36, if that vessel is used:
(1) To fish for Pacific pelagic management unit species using
longline gear in the EEZ around American Samoa; or
(2) To land shoreward of the outer boundary of the EEZ around
American Samoa Pacific pelagic management unit species that were
harvested using longline gear in the EEZ around American Samoa; or
(3) To transship shoreward of the outer boundary of the EEZ around
American Samoa Pacific pelagic management unit species that were
harvested using longline gear in the EEZ around American Samoa or on
the high seas.
(d) A vessel of the United States must be registered for use under
a valid Western Pacific general longline permit, American Samoa
longline limited access permit, or Hawaii longline limited access
permit if that vessel is used:
(1) To fish for Pacific pelagic management unit species using
longline gear in the EEZ around Guam, the Northern Mariana Islands, or
the Pacific remote island areas (with the exception of Midway Atoll);
or
(2) To land or transship shoreward of the outer boundary of the EEZ
around Guam, the Northern Mariana Islands, or the Pacific remote island
areas (with the exception of Midway Atoll), Pacific pelagic management
unit species that were harvested using longline gear.
(e) A receiving vessel of the United States must be registered for
use with a valid receiving vessel permit if that vessel is used to land
or transship, within the Western Pacific Fishery Management Area,
Pacific pelagic management unit species that were harvested using
longline gear.
(f) A vessel of the United States must be registered for use with a
valid PRIA pelagic troll and handline fishing permit if that vessel is
used to fish for Pacific
[[Page 29652]]
pelagic management unit species using pelagic handline or trolling
fishing methods in the EEZ around the PRIA.
(g) Any required permit must be valid and on board the vessel and
available for inspection by an authorized agent, except that, if the
permit was issued (or registered to the vessel) during the fishing trip
in question, this requirement applies only after the start of any
subsequent fishing trip.
(h) A permit is valid only for the vessel for which it is
registered. A permit not registered for use with a particular vessel
may not be used.
(i) An application for a permit required under this section will be
submitted to PIRO as described in Sec. 660.13.
(j) General requirements governing application information,
issuance, fees, expiration, replacement, transfer, alteration, display,
and sanctions for permits issued under this section, as applicable, are
contained in Sec. 660.13.
(k) A Hawaii longline limited access permit may be transferred as
follows:
(1) The owner of a Hawaii longline limited access permit may apply
to transfer the permit:
(i) To a different person for registration for use with the same or
another vessel; or
(ii) For registration for use with another U.S. vessel under the
same ownership.
(2) [Reserved]
(l) A Hawaii longline limited access permit will not be registered
for use with a vessel that has a LOA greater than 101 ft (30.8 m).
(m) Only a person eligible to own a documented vessel under the
terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or
otherwise) a Hawaii longline limited access permit.
(n) Permit appeals. Except as provided in subpart D of 15 CFR part
904, any applicant for a permit or any permit owner may appeal to the
Regional Administrator the granting, denial, conditioning, suspension,
or transfer of a permit or requested permit under this section. To be
considered by the Regional Administrator, the appeal must be in
writing, must state the action(s) appealed, and the reasons therefor,
and must be submitted within 30 days of the action(s) by the Regional
Administrator. The appellant may request an informal hearing on the
appeal.
(1) Upon receipt of an appeal authorized by this section, the
Regional Administrator may request additional information. Upon receipt
of sufficient information, the Regional Administrator will decide the
appeal in accordance with the criteria set out in this part for
qualifying for, or renewing, limited access permits. In making such
decision, the Administrator will review relevant portions of the
Fishery Management Plan for the Pelagic Fisheries of the Western
Pacific Region, to the extent such review would clarify the criteria in
this part. Such decision will be based upon information relative to the
application on file at NMFS and the Council and any additional
information available; the summary record kept of any hearing and the
hearing officer's recommended decision, if any, as provided in
paragraph (n)(3) of this section; and such other considerations as
deemed appropriate. The Regional Administrator will notify the
appellant of the decision and the reasons therefor, in writing,
normally within 30 days of the receipt of sufficient information,
unless additional time is needed for a hearing.
(2) If a hearing is requested, or if the Regional Administrator
determines that one is appropriate, the Regional Administrator may
grant an informal hearing before a hearing officer designated for that
purpose. Such a hearing normally shall be held no later than 30 days
following receipt of the appeal, unless the hearing officer extends the
time. The appellant and, at the discretion of the hearing officer,
other interested persons, may appear personally or be represented by
counsel at the hearing and submit information and present arguments as
determined appropriate by the hearing officer. Within 30 days of the
last day of the hearing, the hearing officer shall recommend, in
writing, a decision to the Regional Administrator.
(3) The Regional Administrator may adopt the hearing officer's
recommended decision, in whole or in part, or may reject or modify it.
In any event, the Regional Administrator will notify the appellant, and
interested persons, if any, of the decision, and the reason(s)
therefor, in writing, within 30 days of receipt of the hearing
officer's recommended decision. The Regional Administrator's action
shall constitute final Agency action for purposes of the Administrative
Procedure Act.
(4) In the case of a timely appeal from an American Samoa longline
limited access permit initial permit decision, the Regional
Administrator will issue the appellant a temporary American Samoa
longline limited access permit. A temporary permit will expire 20 days
after the Regional Administrator's final decision on the appeal. In no
event will a temporary permit be effective for longer than 60 days.
(5) With the exception of temporary permits issued under paragraph
(n)(4) of this section, any time limit prescribed in this section may
be extended for a period not to exceed 30 days by the Regional
Administrator for good cause, either upon his/her own motion or upon
written request from the appellant stating the reason(s) therefor.
0
5. Section 660.22 is revised to read as follows:
Sec. 660.22 Prohibitions.
In addition to the prohibitions specified in Part 600 Sec. 600.725
of this chapter, it is unlawful for any person to do any of the
following:
(a) Falsify or fail to make and/or file all reports of Pacific
pelagic management unit species landings, containing all data and in
the exact manner, as required by applicable state law or regulation, as
specified in Sec. 660.3, provided that the person is required to do so
by applicable state law or regulation.
(b) Use a vessel without a valid permit issued under the High Seas
Fishing Compliance Act to fish for Pacific pelagic management unit
species using longline gear, on the high seas, in violation of
Sec. Sec. 300.15 and 660.21(a)of this title.
(c) Use a vessel in the EEZ around the Hawaiian Archipelago without
a valid Hawaii longline limited access permit registered for use with
that vessel, to fish for Pacific pelagic management unit species using
longline gear, in violation of Sec. 660.21(b)(1).
(d) Use a vessel shoreward of the outer boundary of the EEZ around
the Hawaiian Archipelago without a valid Hawaii longline limited access
permit registered for use with that vessel, to land or transship
Pacific pelagic management unit species that were harvested with
longline gear, in violation of Sec. 660.21(b)(2).
(e) Use a vessel in the EEZ around American Samoa without a valid
American Samoa longline limited access permit registered for use with
that vessel, to fish for Pacific pelagic management unit species using
longline gear, in violation of Sec. 660.21(c)(1).
(f) Use a vessel shoreward of the outer boundary of the EEZ around
American Samoa without a valid American Samoa longline limited access
permit registered for use with that vessel, to land Pacific pelagic
management unit species that were caught with longline gear within the
EEZ around American Samoa, in violation of Sec. 660.21(c)(2).
(g) Use a vessel within the EEZ around American Samoa without a
valid American Samoa longline limited access permit registered for use
with that vessel, to transship Pacific pelagic management unit species
that were
[[Page 29653]]
caught with longline gear, in violation of Sec. 660.21(c)(3).
(h) Use a vessel in the EEZ around Guam, the Northern Mariana
Islands, or the Pacific remote island areas (with the exception of
Midway Atoll) without either a valid Western Pacific general longline
permit, American Samoa longline limited access permit or a Hawaii
longline limited access permit registered for use with that vessel, to
fish for Pacific pelagic management unit species using longline gear,
in violation of Sec. 660.21(d)(1).
(i) Use a vessel shoreward of the outer boundary of the EEZ around
Guam, the Northern Mariana Islands, or the Pacific remote island areas
(with the exception of Midway Atoll) without either a valid Western
Pacific general longline permit, American Samoa longline limited access
permit or a Hawaii longline limited access permit registered for use
with that vessel, to land or transship Pacific pelagic management unit
species that were harvested using longline gear, in violation of Sec.
660.21(d)(2).
(j) Use a vessel in the Western Pacific Fishery Management Area to
land or transship Pacific pelagic management unit species caught by
other vessels using longline gear, without a valid receiving vessel
permit registered for use with that vessel, in violation of Sec.
660.21(e).
(k) Use a vessel in the EEZ around the PRIA employing handline or
trolling methods to fish for Pacific pelagic management unit species
without a valid PRIA pelagic troll and handline fishing permit
registered for use for that vessel, in violation of Sec. 660.21(f).
(l) Fish in the fishery after failing to comply with the
notification requirements in Sec. 660.23.
(m) Fail to comply with notification requirements set forth in
Sec. 660.23 or in any EFP issued under Sec. 660.17.
(n) Fail to comply with a term or condition governing the vessel
monitoring system when using a vessel registered for use with a Hawaii
longline limited access permit, or a vessel registered for use with a
size Class C or D American Samoa longline limited access permit, in
violation of Sec. 660.25.
(o) Fish for, catch, or harvest Pacific pelagic management unit
species with longline gear without a VMS unit on board the vessel after
installation of the VMS unit by NMFS, in violation of Sec.
660.25(d)(2).
(p) Possess on board a vessel without a VMS unit Pacific pelagic
management unit species harvested with longline gear after NMFS has
installed the VMS unit on the vessel, in violation of Sec.
660.25(d)(2).
(q) Interfere with, tamper with, alter, damage, disable, or impede
the operation of a VMS unit or to attempt any of the same; or to move
or remove a VMS unit without the prior permission of the SAC in
violation of Sec. 660.25(d)(3).
(r) Make a false statement, oral or written, to an authorized
officer, regarding the use, operation, or maintenance of a VMS unit, in
violation of Sec. 660.25(d)(1).
(s) Interfere with, impede, delay, or prevent the installation,
maintenance, repair, inspection, or removal of a VMS unit, in violation
of Sec. 660.25(d)(1).
(t) Interfere with, impede, delay, or prevent access to a VMS unit
by a NMFS observer, in violation of Sec. 660.28(f)(4).
(u) Connect or leave connected additional equipment to a VMS unit
without the prior approval of the SAC, in violation of Sec. 660.25(e).
(v) Fish with longline gear within a longline fishing prohibited
area, except as allowed pursuant to an exemption issued under Sec.
660.17 or Sec. 660.27, in violation of Sec. 660.26.
(w) Fish for Pacific pelagic management unit species with longline
gear within the protected species zone, in violation of Sec.
660.26(b).
(x) Fail to comply with a term or condition governing the observer
program established in Sec. 660.28 if using a vessel registered for
use with a Hawaii longline limited access permit, or a vessel
registered for use with a size Class B, C or D American Samoa longline
limited access permit, to fish for Pacific pelagic management unit
species using longline gear.
(y) Fail to comply with other terms and conditions that the
Regional Administrator imposes by written notice to either the permit
holder or the designated agent of the permit holder to facilitate the
details of observer placement.
(z) Enter the EEZ around the Hawaiian Archipelago with longline
gear that is not stowed or secured in accordance with Sec. 660.29, if
operating a U.S. vessel without a valid Hawaii longline limited access
permit registered for use with that vessel.
(aa) Enter the EEZ around Guam, the Northern Mariana Islands, or
PRIA with longline gear that is not stowed or secured in accordance
with Sec. 660.29 if operating a U.S. vessel without a valid Western
Pacific general longline permit, American Samoa longline limited access
permit, or Hawaii longline limited access permit, registered for use
with that vessel.
(bb) Enter the EEZ around American Samoa with longline gear that is
not stowed or secured in accordance with Sec. 660.29, if operating a
U.S. vessel without a valid American Samoa longline limited access
permit registered for use with that vessel.
(cc) Fail to carry, or fail to use, a line clipper, dip net, or
dehooker on a vessel registered for use under a Hawaii longline limited
access permit, in violation of Sec. 660.32(a).
(dd) When operating a vessel registered for use under a American
Samoa longline limited access permit or a Hawaii longline limited
access permit, fail to comply with the sea turtle handling,
resuscitation, and release requirements, in violation of Sec.
660.32(b).
(ee) Engage in shallow-setting without a valid shallow-set
certificate for each shallow set made, in violation of Sec. 660.33(c).
(ff) Fail to attach a valid shallow-set certificate for each
shallow-set to the original logbook form submitted to the Regional
Administrator under Sec. 660.14, in violation of Sec. 660.33(c).
(gg) Possess float lines less than 20 meters in length on board a
vessel registered for use under a Hawaii longline limited access permit
at any time during a trip for which notification to NMFS under Sec.
660.23(a) indicated that deep-setting would be done, in violation of
Sec. 660.33(d).
(hh) Possess light sticks on board a vessel registered for use
under a Hawaii longline limited access permit at any time during a trip
for which notification to NMFS under Sec. 660.23(a) indicated that
deep-setting would be done, in violation of Sec. 660.33(d).
(ii) Transfer a shallow-set certificate to a person other than a
holder of a Hawaii longline limited access permit, in violation of
Sec. 660.33(e).
(jj) Engage in shallow-setting from a vessel registered for use
under a Hawaii longline limited access permit north of the equator
(0[deg] lat.) with hooks other than offset circle hooks sized 18/0 or
larger, with 10[deg] offset, in violation of Sec. 660.33(f).
(kk) Engage in shallow-setting from a vessel registered for use
under a Hawaii longline limited access permit north of the equator
(0[deg] lat.) with bait other than mackerel-type bait, in violation of
Sec. 660.33(g).
(ll) From a vessel registered for use under a Hawaii longline
limited access permit, make any longline set not of the type (shallow-
setting or deep-setting) indicated in the notification to the Regional
Administrator pursuant to Sec. 660.23(a), in violation of Sec.
660.33(h).
(mm) Engage in shallow-setting from a vessel registered for use
under a Hawaii longline limited access permit after the shallow-set
component of the
[[Page 29654]]
longline fishery has been closed pursuant to Sec. 660.33(b)(2)(I), in
violation of Sec. 660.33(I).
(nn) Land or possess more than 10 swordfish on board a vessel
registered for use under a Hawaii longline limited access permit on a
fishing trip for which the permit holder notified NMFS under Sec.
660.23(a) that the vessel would conduct a deep-setting trip, in
violation of Sec. 660.33(j).
(oo) Own or operate a vessel that is registered for use under a
Hawaii longline limited access permit and engaged in longline fishing
for Pacific pelagic management unit species and fail to be certified
for completion of a NMFS protected species workshop, in violation of
Sec. 660.34(a).
(pp) Operate a vessel registered for use under a Hawaii longline
limited access permit while engaged in longline fishing without having
on board a valid protected species workshop certificate issued by NMFS
or a legible copy thereof, in violation of Sec. 660.34(d).
(qq) Fail to use a line setting machine or line shooter, with
weighted branch lines, to set the main longline when operating a vessel
that is registered for use under a Hawaii longline limited access
permit and equipped with monofilament main longline, when making deep
sets north of 23[deg] N. lat., in violation of Sec. 660.35(a)(1) or
(a)(2).
(rr) Fail to employ basket-style longline gear such that the
mainline is deployed slack when operating a vessel registered for use
under a Hawaii longline limited access north of 23[deg] N. lat., in
violation of Sec. 660.35(a)(3).
(ss) Fail to maintain and use blue dye to prepare thawed bait when
operating a vessel registered for use under a Hawaii longline limited
access permit that is fishing north of 23[deg] N. lat., in violation of
Sec. 660.35(a)(4), (a)(5), or (a)(6).
(tt) Fail to retain, handle, and discharge fish, fish parts, and
spent bait, strategically when operating a vessel registered for use
under a Hawaii longline limited access permit that is fishing north of
23[deg] N. lat., in violation of Sec. 660.35(a)(7), through (a)(9).
(uu) Fail to be begin the deployment of longline gear at least 1
hour after local sunset or fail to complete the setting process before
local sunrise from a vessel registered for use under a Hawaii longline
limited access permit while shallow-setting north of 23[deg] N. lat.,
in violation of Sec. 660.35(a)(1).
(vv) Fail to handle short-tailed albatrosses that are caught by
pelagic longline gear in a manner that maximizes the probability of
their long-term survival, in violation of Sec. 660.35 (b).
(ww) Fail to handle seabirds other than short-tailed albatrosses
that are caught by pelagic longline gear in a manner that maximizes the
probability of their long-term survival, in violation of Sec.
660.35(c).
(xx) Use a large vessel to fish for Pelagic management unit species
within an American Samoa large vessel prohibited area except as allowed
pursuant to an exemption issued under Sec. 660.38.
(yy) Fish for Pacific pelagic management unit species using gear
prohibited under Sec. 660.30 or not permitted by an EFP issued under
Sec. 660.17.
0
6. Section 660.23 is revised to read as follows:
Sec. 660.23 Notifications.
(a) The permit holder for any vessel registered for use under a
Hawaii longline limited access permit or for any vessel greater than 40
ft (12.2 m) in length overall that is registered for use under an
American Samoa longline limited access permit, or a designated agent,
shall provide a notice to the Regional Administrator at least 72 hours
(not including weekends and Federal holidays) before the vessel leaves
port on a fishing trip, any part of which occurs in the EEZ around the
Hawaiian Archipelago or American Samoa. For the purposes of this
section, the vessel operator will be presumed to be an agent designated
by the permit holder unless the Regional Administrator is otherwise
notified by the permit holder. The notice must be provided to the
office or telephone number designated by the Regional Administrator.
The notice must provide the official number of the vessel, the name of
the vessel, the intended departure date, time, and location, the name
of the operator of the vessel, and the name and telephone number of the
agent designated by the permit holder to be available between 8 a.m.
and 5 p.m. (local time) on weekdays for NMFS to contact to arrange
observer placement. Permit holders for vessels registered for use under
Hawaii longline limited access permits must also provide notification
of the trip type (either deep-setting or shallow-setting).
(b) The operator of any vessel subject to the requirements of this
subpart who does not have on board a VMS unit while transiting the
protected species zone as defined in Sec. 660.12, must notify the NMFS
Special-Agent-In-Charge immediately upon entering and immediately upon
departing the protected species zone. The notification must include the
name of the vessel, name of the operator, date and time (GMT) of access
or exit from the protected species zone, and location by latitude and
longitude to the nearest minute.
(c) The permit holder for any American Samoa longline limited
access permit, or an agent designated by the permit holder, must notify
the Regional Administrator in writing within 30 days of any change to
the permit holder's contact information or any change to the vessel
documentation associated with a permit registered to an American Samoa
longline limited access permit. Complete changes in the ownership of
the vessel registered to an American Samoa longline limited access
permit must also be reported to PIRO in writing within 30 days of the
change. Failure to report such changes may result in a delay in
processing an application, permit holders failing to receive important
notifications, or sanctions pursuant to the Magnuson-Stevens Act at 16
U.S.C. Sec. 1858(g) or 15 CFR part 904, subpart D.
0
7. In Sec. 660.25, paragraph (b), the first sentence of paragraph (c),
and the introductory text of paragraph (d) are revised to read as
follows:
Sec. 660.25 Vessel monitoring systems.
* * * * *
(b) Notification. After a Hawaii longline limited access permit
holder or size Class C or D American Samoa longline limited access
permit holder has been notified by the SAC of a specific date for
installation of a VMS unit on the permit holder's vessel, the vessel
must carry the VMS unit after the date scheduled for installation.
(c) Fees and charges. During the experimental VMS program, a Hawaii
longline limited access permit holder or size Class C or D American
Samoa longline permit holder with a size Class D or D permit shall not
be assessed any fee or other charges to obtain and use a VMS unit,
including the communication charges related directed to requirements
under this section. * * *
(d) Permit holder duties. The holder of a Hawaii longline limited
access permit or a size Class C or D American Samoa longline permit and
master of the vessel must: * * *
0
8. Section 660.36 is added to read as follows:
Sec. 660.36 American Samoa longline limited entry program.
(a) General. Under Sec. 660.21(c), certain U.S. vessels are
required to be registered for use under a valid American Samoa longline
limited access permit. With the exception of reductions in permits in
vessel size Class A under paragraph (c)(1) of this section, the maximum
[[Page 29655]]
number of permits will be capped at the number of initial permits
actually issued under paragraph (f)(1) of this section.
(b) Terminology. For purposes of this section, the following terms
have these meanings:
(1) Documented participation means participation proved by, but not
necessarily limited to, a properly submitted NMFS or American Samoa
logbook, an American Samoa creel survey record, a delivery or payment
record from an American Samoa-based cannery, retailer or wholesaler, an
American Samoa tax record, an individual wage record, ownership title,
vessel registration, or other official documents showing:
(i) Ownership of a vessel that was used to fish in the EEZ around
American Samoa, or
(ii) Evidence of work on a fishing trip during which longline gear
was used to harvest Pacific pelagic management unit species in the EEZ
around American Samoa. If the applicant does not possess the necessary
documentation of evidence of work on a fishing trip based on records
available only from NMFS or the Government of American Samoa (e.g.,
creel survey record or logbook), the applicant may request PIRO to
obtain such records from the appropriate agencies, if available. The
applicant should provide sufficient information on the fishing trip to
allow PIRO to retrieve the records.
(2) Family means those people related by blood, marriage, and
formal or informal adoption.
(c) Vessel size classes. The Regional Administrator shall issue
American Samoa longline limited access permits in the following size
classes:
(1) Class A: Vessels less than or equal to 40 ft (12.2 m) length
overall. The maximum number will be reduced as Class B-1, C-1, and D-1
permits are issued under paragraph (e) of this section.
(2) Class B: Vessels over 40 ft (12.2 m) to 50 ft (15.2 m) length
overall.
(3) Class B-1: Maximum number of 14 permits for vessels over 40 ft
(12.2 m) to 50 ft (15.2 m) length overall, to be made available
according to the following schedule:
(i) Four permits in the first calendar year after the Regional
Administrator has issued all initial permits in
Classes A, B, C, and D (initial issuance),
(ii) In the second calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first four, plus four
additional permits,
(iii) In the third calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first eight, plus
four additional permits, and
(iv) In the fourth calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first 12, plus two
additional permits.
(4) Class C: Vessels over 50 ft (15.2 m) to 70 ft (21.3 m) length
overall.
(5) Class C-1: Maximum number of six permits for vessels over 50 ft
(15.2) to 70 ft (21.3 m) length overall, to be made available according
to the following schedule:
(i) Two permits in the first calendar year after initial issuance,
(ii) In the second calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first two, plus two
additional permits, and
(iii) In the third calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first four, plus two
additional permits.
(6) Class D: Vessels over 70 ft (21.3 m) length overall.
(7) Class D-1: Maximum number of 6 permits for vessels over 70 ft
(21.3 m) length overall, to be made available according to the
following schedule:
(i) Two permits in the first calendar year after initial issuance,
(ii) In the second calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first two, plus two
additional permits, and
(iii) In the third calendar year after initial issuance, any
unissued, relinquished, or revoked permits of the first four, plus two
additional permits.
(d) A vessel subject to this section may only be registered with an
American Samoa longline limited access permit of a size class equal to
or larger than the vessel's length overall.
(e) Initial permit qualification. Any U.S. national or U.S. citizen
or company, partnership, or corporation qualifies for an initial
American Samoa longline limited access permit if the person, company,
partnership, or corporation, on or prior to March 21, 2002, owned a
vessel that was used during the time of their ownership to harvest
Pacific pelagic management unit species with longline gear in the EEZ
around American Samoa and that fish was landed in American Samoa:
(1) Prior to March 22, 2002, or
(2) Prior to June 28, 2002, provided that the person or business
provided to NMFS or the Council, prior to March 22, 2002, a written
notice of intent to participate in the pelagic longline fishery in the
EEZ around American Samoa.
(f) Initial permit issuance. (1) Any application for issuance of an
initial permit must be submitted to the Pacific Islands Regional Office
no later than 120 days after the effective date of this final rule. The
Regional Administrator shall publish a notice in the Federal Register,
send notices to persons on the American Samoa pelagics mailing list,
and use other means to notify prospective applicants of the
availability of permits. Applications for initial permits must be made,
and application fees paid, in accordance with Sec. Sec. 660.13(c)(1),
(d) and (f)(2). A complete application must include documented
participation in the fishery in accordance with Sec. 660.36(b)(1). If
the applicant is any entity other than a sole owner, the application
must be accompanied by a supplementary information sheet obtained from
the Regional Administrator, containing the names and mailing addresses
of all owners, partners, and corporate officers.
(2) Only permits of Class A, B, C, and D will be made available for
initial issuance. Permits of Class B-1, C-1, and D-1, will be made
available in subsequent calendar years.
(3) Within 30 days of receipt of a completed application, the
Assistant Regional Administrator for Sustainable Fisheries, PIRO, shall
make a decision on whether the applicant qualifies for an initial
permit and will notify the successful applicant by a dated letter. The
successful applicant must register a vessel, of the equivalent size
class or smaller to which the qualifying vessel would have belonged, to
the permit within 120 days of the date of the letter of notification,
and maintain this vessel registration to the permit for at least 120
days. The successful applicant must also submit a supplementary
information sheet, obtained from the Regional Administrator, containing
the name and mailing address of the owner of the vessel to which the
permit is registered. If the registered vessel is owned by any entity
other than a sole owner, the names and mailing addresses of all owners,
partners, and corporate officers must be included. (4) An appeal of a
denial of an application for an initial permit shall be processed in
accordance with Sec. 660.21(n) of this subpart.
(4) After all appeals on initial permits are concluded in any
vessel size class, the maximum number of permits in that class shall be
the number of permits issued during the initial issuance process
(including appeals). The maximum number of permits will not change,
except that the maximum number of Class A permits will be reduced if
Class A permits are replaced by B-1, C-1, or D-1 permits under
paragraph (h) of this section. Thereafter,
[[Page 29656]]
if any Class A, B, C, or D permit becomes available, the Regional
Administrator shall re-issue that permit according to the process set
forth in paragraph (g) of this section.
(g) Additional permit issuance. (1) If the number of permits issued
in Class A, B, C, or D, falls below the maximum number of permits, the
Regional Administrator shall publish a notice in the Federal Register,
send notices to persons on the American Samoa pelagics mailing list,
and use other means to notify prospective applicants of any available
permit(s) in that class. Any application for issuance of an additional
permit must be submitted to PIRO no later than 120 days after the date
of publication of the notice on the availability of additional permits
in the Federal Register. A complete application must include documented
participation in the fishery in accordance with Sec. 660.36(b)(1). The
Regional Administrator shall issue permits to persons according the
following priority standard:
(i) First priority accrues to the person with the earliest
documented participation in the pelagic longline fishery in the EEZ
around American Samoa on a Class A sized vessel.
(ii) The next priority accrues to the person with the earliest
documented participation in the pelagic longline fishery in the EEZ
around American Samoa on a Class B size, Class C size, or Class D size
vessel, in that order.
(iii) In the event of a tie in the priority ranking between two or
more applicants, then the applicant whose second documented
participation in the pelagic longline fishery in the EEZ around
American Samoa is first in time will be ranked first in priority. If
there is still a tie between two or more applicants, the Regional
Administrator will select the successful applicant by an impartial
lottery.
(2) Applications must be made, and application fees paid, in
accordance with Sec. Sec. 660.13(c)(1), (d), and (f)(2). If the
applicant is any entity other than a sole owner, the application must
be accompanied by a supplementary information sheet, obtained from the
Regional Administrator, containing the names and mailing addresses of
all owners, partners, and corporate officers that comprise ownership of
the vessel for which the permit application is prepared.
(3) Within 30 days of receipt of a completed application, the
Assistant Regional Administrator for Sustainable Fisheries shall make a
decision on whether the applicant qualifies for a permit and will
notify the successful applicant by a dated letter. The successful
applicant must register a vessel of the equivalent vessel size or
smaller to the permit within 120 days of the date of the letter of
notification. The successful applicant must also submit a supplementary
information sheet, obtained from the Regional Administrator, containing
the name and mailing address of the owner of the vessel to which the
permit is registered. If the registered vessel is owned by any entity
other than a sole owner, the names and mailing addresses of all owners,
partners, and corporate officers must be included. If the successful
applicant fails to register a vessel to the permit within 120 days of
the date of the letter of notification, the Assistant Regional
Administrator for Sustainable Fisheries shall issue a letter of
notification to the next person on the priority list or, in the event
that there are no more prospective applicants on the priority list, re-
start the issuance process pursuant to paragraph (g)(1) of this
section. Any person who fails to register the permit to a vessel under
this paragraph within 120 days shall not be eligible to apply for a
permit for 6 months from the date those 120 days expired.
(4) An appeal of a denial of an application for a permit shall be
processed in accordance with Sec. 660.21(n).
(h) Class B-1, C-1, and D-1 Permits. (1) Permits of Class B-1, C-1,
and D-1 will be initially issued only to persons who hold a Class A
permit and who, prior to March 22, 2002, participated in the pelagic
longline fishery around American Samoa.
(2) The Regional Administrator shall issue permits to persons for
Class B-1, C-1, and D-1 permits based on each person's earliest
documented participation, with the highest priority given to that
person with the earliest date of documented participation.
(3) A permit holder who receives a Class B-1, C-1, or D-1 permit
must relinquish his or her Class A permit and that permit will no
longer be valid. The maximum number of Class A permits will be reduced
accordingly.
(4) Within 30 days of receipt of a completed application for a
Class B-1, C-1, and D-1 permit, the Regional Administrator shall make a
decision on whether the applicant qualifies for a permit and will
notify the successful applicant by a dated letter. The successful
applicant must register a vessel of the equivalent vessel size or
smaller to the permit within 120 days of the date of the letter of
notification. The successful applicant must also submit a supplementary
information sheet, obtained from the Regional Administrator, containing
the name and mailing address of the owner of the vessel to which the
permit is registered. If the registered vessel is owned by any entity
other than a sole owner, the names and mailing addresses of all owners,
partners, and corporate officers must be included.
(5) An appeal of a denial of an application for a Class B-1, C-1,
or D-1 permit shall be processed in accordance with Sec. 660.21(n).
(6) If a Class B-1, C-1, or D-1 permit is relinquished, revoked, or
not renewed pursuant to paragraph (j)(1) of this section, the Regional
Administrator shall make that permit available according to the
procedure described in paragraphs (g)(1) through (g)(4) of this
section.
(i) Permit transfer. The holder of an American Samoa longline
limited access permit may transfer the permit to another individual,
partnership, corporation, or other entity as described in this section.
Applications for permit transfers must be submitted to the Regional
Administrator within 30 days of the transferral date. If the applicant
is any entity other than a sole owner, the application must be
accompanied by a supplementary information sheet, obtained from the
Regional Administrator, containing the names and mailing addresses of
all owners, partners, and corporate officers. After such an application
has been made, the permit is not valid for use by the new permit holder
until the Regional Administrator has issued the permit in the new
permit holder's name under Sec. 660.13(c).
(1) Permits of all size classes except Class A. An American Samoa
longline limited access permit of any size class except Class A may be
transferred (by sale, gift, bequest, intestate succession, barter, or
trade) to the following persons only:
(i) A Western Pacific community located in American Samoa that
meets the criteria set forth in section 305(I)(2) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(I)(2), and its implementing regulations, or
(ii) Any person with documented participation in the pelagic
longline fishery in the EEZ around American Samoa.
(2) Class A Permits. An American Samoa longline limited access
permit of Class A may be transferred (by sale, gift, bequest, intestate
succession, barter, or trade) to the following persons only:
(i) A family member of the permit holder,
(ii) A Western Pacific community located in American Samoa that
meets the criteria set forth in section 305(I)(2)
[[Page 29657]]
of the Magnuson-Stevens Act, 16 U.S.C. 1855(I)(2), and its implementing
regulations, or
(iii) Any person with documented participation in the pelagic
longline fishery on a Class A size vessel in the EEZ around American
Samoa prior to March 22, 2002.
(3) Class B-1, C-1, and D-1 Permits. Class B-1, C-1, and D-1
permits may not be transferred to a different owner for 3 years from
the date of initial issuance, except by bequest or intestate succession
if the permit holder dies during those 3 years. After the initial 3
years, Class B-1, C-1, and D-1 permits may be transferred only in
accordance with the restrictions in paragraph (I)(1) of this section.
(j) Permit renewal and registration of vessels--(1) Use
requirements. An American Samoa longline limited access permit will not
be renewed following 3 consecutive calendar years (beginning with the
year after the permit was issued in the name of the current permit
holder) in which the vessel(s) to which it is registered landed less
than:
(i) For permit size Classes A or B: a total of 1,000 lb (455 kg) of
Pacific pelagic management unit species harvested in the EEZ around
American Samoa using longline gear, or
(ii) For permit size Classes C or D: a total of 5,000 lb (2,273 kg)
of Pacific pelagic management unit species harvested in the EEZ around
American Samoa using longline gear.
(k) Concentration of ownership of permits. No more than 10 percent
of the maximum number of permits, of all size classes combined, may be
held by the same permit holder. Fractional interest will be counted as
a full permit for the purpose of calculating whether the 10-percent
standard has been reached.
(l) Three year review. Within 3 years of the effective date of this
final rule the Council shall consider appropriate revisions to the
American Samoa limited entry program after reviewing the effectiveness
of the program with respect to its biological and socioeconomic
objectives, concerning gear conflict, overfishing, enforceability,
compliance, and other issues.
Sec. Sec. 660.13, 660.21, 660.22, 660.27, 660.28, 660.38, 660.41,
660.42, 660.48, 660.49, 660.51, 660.61, 660.62, 660.63, 660.65, and
660.86 [Amended]
0
10. In the table below, for each section indicated in the left column,
remove the words indicated in the middle column from wherever they
appear in the section, and add the words indicated in the right column:
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Section Remove Add
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660.13 Southwest Region FMD Western Pacific Regional Administrator
660.21 LonWestern Pacific general longline permit PIRO Regional
Administrator
660.22 Longline generalWestern Pacific general longline permit
660.27 Pacific Area Office PIRO
660.28 Fisheries Observer Branch, Southwest Region Southwest Observer Program, PIRO Regional Administrator
Regional Administrator
660.38 Longline generalWestern Pacific general longline permit
660.41 Pacific Area Office Regional Director PIRO
660.42 Regional Director Regional Administrator
660.48 NMFS Law Enforcement Office SAC
660.49 Regional Director Regional Administrator
660.51 Regional Director Regional Administrator
660.61 PIAO PIRO
660.62 Regional Director Regional Administrator
660.63 Pacific Area Office PIRO
660.65 Pacific Area Office PIRO
660.86 Pacific Islands Area Office PIRO
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[FR Doc. 05-10351 Filed 5-23-05; 8:45 am]
BILLING CODE 3510-22-S