[Federal Register Volume 59, Number 37 (Thursday, February 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4107]
[[Page Unknown]]
[Federal Register: February 24, 1994]
_______________________________________________________________________
Part IV
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
50 CFR Part 685
Pelagic Fisheries of the Western Pacific Region; Proposed Rule
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National Oceanic and Atmospheric Administration
50 CFR Part 685
[Docket No. 940245-4045; I.D. 012694F]
RIN 0648-AE35
Pelagic Fisheries of the Western Pacific Region
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS issues a proposed rule to implement Amendment 7 to the
Fishery Management Plan for the Pelagic Fisheries of the Western
Pacific Region (FMP). This rule would replace a moratorium on the
issuance of new permits for the Hawaii-based longline fishery for
Pacific pelagic management unit species. Under this rule, limited entry
permits for the Hawaii longline fishery would be issued to people
meeting certain eligibility criteria. The rule also proposes broad
framework procedures for subsequent adjustment of the conservation and
management measures for the pelagics fisheries intended to provide for
more efficient administration of the longline fishery. This rule also
makes several technical changes to the regulations. The proposed action
is necessary to manage the longline fishery based in Hawaii to achieve
optimum yield from the fishery and prevent overfishing in accordance
with the Magnuson Fishery Conservation and Management Act (Magnuson
Act). Comments are solicited on this action; especially regarding the
sufficiency of the upgrade limit to control the longline fleet's growth
and the adequacy of this measure to protect pelagic stocks and to
prevent adverse impacts on non-longline fishermen fishing for tuna and
billfish, and to protect sea turtles.
DATES: Comments on the proposed rule will be accepted until April 4,
1994.
ADDRESSES: Comments on the proposed rule and the Initial Regulatory
Flexibility Analysis (IRFA) may be sent to Anneka E. Bane, Acting
Director, Southwest Region, National Marine Fisheries Service, 501 West
Ocean Boulevard, suite 4200, Long Beach, CA 90802-4213. Copies of the
amendment, final environmental impact statement (FEIS), and IRFA are
available from Kitty M. Simonds, Executive Director, Western Pacific
Fishery Management Council (WPFMC), 1164 Bishop Street, Suite 1405,
Honolulu, HI 96813, (808) 541-1974. Send comments on the proposed
collection-of-information to the Director, Southwest Region, NMFS, 501
W. Ocean Blvd., Long Beach, CA 90802-4213, and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
ATTN: Paperwork Reduction Project 0648-0204 and 0648-0214, Washington,
DC 20503.
FOR FURTHER INFORMATION CONTACT: Kitty M. Simonds, WPFMC, at (808) 541-
1974; Svein Fougner, Southwest Region, NMFS, at (310) 980-4034; or
Alvin Katekaru, Pacific Area Office, NMFS, at (808) 955-8831.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the Western Pacific
Fishery Management Council (Council) and approved and implemented by
the Secretary of Commerce (Secretary) at a time when there were few
problems in the domestic fisheries for management unit species
(billfish and associated species). This is no longer the case. The
longline fishery based in Hawaii targets swordfish, tuna, and other
management unit species, with vessels often traveling up to 2,000 miles
(3,219 Km) from port. Due to rapid growth of this fishery, prior to
imposition of the 3-year moratorium on new participants, there was
concern about the potential and actual impact of the expanded fishery
on the status of some fish stocks, the impact of increased longline
catches on other fisheries, and interactions between longline fishing
and protected species such as Hawaiian monk seals and sea turtles.
The Council and Secretary have already taken several actions to
address these concerns. They established a control date for possible
use in a limited entry program (56 FR 12891, March 28, 1991), issued an
emergency rule establishing a moratorium on new entry into the Hawaii-
based longline fishery (56 FR 14866, April 12, 1991) and subsequently
extended the moratorium to midnight, April 22, 1994, by Amendment 4 to
the FMP (56 FR 51849, October 16, 1991). Amendment 7 would replace the
moratorium and addresses a number of issues that are associated with
the prospect of unregulated expansion of the longline fishery.
Increased level of longline fishing catches from the portion of the EEZ
around Hawaii and from adjacent high seas could result in overfishing
of the stocks of Pacific pelagic management unit species throughout
their range, most notably swordfish. Even if stocks were not affected
on a stock-wide basis, increased catches by U.S. longline vessels could
adversely affect other established fisheries, such as the commercial
and recreational handline and troll fisheries in the EEZ, as well as
within the longline fishery. Further, even if direct catch competition
were not occurring, there would be considerable potential for market
competition, both between the longline fleet and the troll and handline
fleets and within the longline fishery itself. Unregulated expansion of
the longline fishery could also increase the likelihood of adverse
impacts on threatened and endangered species such as sea turtles, which
are known to be taken in the longline fishery.
On the other hand, the restrictions (e.g., limitations on permit
transfers and on vessel upgrading) under the moratorium, in combination
with area closures around the Northwestern and main Hawaiian Islands,
which were imposed after the moratorium went into effect, have been
adversely affecting a number of people who had qualified for longline
permits under the moratorium. More than a quarter of the eligible fleet
was inactive in 1992, due in many cases to the main Hawaiian Island
area closures that require vessels to travel 50 to 75 (81 to 121 Km) or
more miles from shore to set their longline gear. Some older and
smaller vessels are unable to fish under these restrictions. Vessel
owners have in some cases been unable to sell or otherwise transfer
their vessels or obtain financing for their fishing activity due to the
``one transfer'' limit during the moratorium. In the Council's view,
this has been an unintended negative effect of the management program.
Further, restrictions on the longline fishery outside the EEZ could
have mixed effects on the nation. The United States would benefit if
the fishery could expand without adverse effects on fish stocks, other
fisheries, or protected resources and if foreign fleets were subject to
similar restrictions. However, in the absence of similar management of
foreign fleets, restricting the U.S. fleet could disadvantage the
United States in any future negotiations leading to international
regulation of longline fisheries and allocations of fish from the high
seas.
In addition, Amendment 7 is intended to improve the administration
of the existing longline fishery management program. The FMP also could
be improved administratively. Existing framework procedures for
regulatory changes are limited in scope, and new framework procedures
are proposed to simplify and expedite the implementation of new
regulations in particular instances without an FMP amendment. This is
especially important for rapid response to new information indicating
problems with respect to stock conservation or conservation of
protected resources.
Hawaii longline limited entry permits would be required for
longline vessels used to: (1) Fish for pelagic species in the EEZ
around Hawaii; or (2) land or transship pelagic species shoreward of
the outer boundary of the EEZ around Hawaii. The permits already
required by existing regulations at 50 CFR 685.9 would be re-named
``longline general permits'' and would be required for longline vessels
around American Samoa, Guam, the Northern Mariana Islands or other U.S.
possessions in the Pacific Ocean, that are used to fish for, land, or
transship pelagic species. Holders of Hawaii longline limited entry
permits would not need a separate general permit to longline, land, or
transship anywhere in the fishery management area (the waters off
Hawaii and all the western Pacific territories and possessions), or
adjacent state waters. Receiving vessel permits would be required for
vessels shoreward of the outer boundary of the fishery management area
that do not have longline gear on board and that land pelagic species
or receive pelagic species from other vessels. For purposes of 50 CFR
part 685, ``land'' means to begin to offload, to arrive in port with
the intention of offloading, or to cause to be offloaded.
The following persons would be eligible for Hawaii longline limited
entry permits:
(1) The last holder of record for any longline vessel limited entry
permit under the moratorium, provided the vessel was used to land
longline-caught management unit species in Hawaii at least once during
the moratorium period;
(2) The last holder of record of a limited entry permit under the
moratorium for a vessel less than 40 feet (12 m) in length; and
(3) The last holder of record of a limited entry permit obtained
during the moratorium because that person also held a limited entry
permit for the NWHI crustaceans (lobster) fishery.
Approximately 166 vessels are expected to qualify for permits under
this program. Hawaii longline limited entry permits would be freely
transferable between vessel owners, provided the new vessel is not
longer than the longest vessel that had a longline limited entry permit
and made landings during the moratorium period (about 93 feet (28 m) to
date). The vessel's length overall is defined in the proposed
regulations and will be the measure of length used in implementing this
restriction.
These measures are intended to allow vessel owners more freedom to
either transfer their vessels or permits to other prospective fishery
participants or invest in larger vessels (up to the size of the largest
vessel active in the moratorium period) in order to resume operation in
the fishery. Vessel owners would have more freedom to decide whether
and how to use their vessels and other resources. This is expected to
result in a decrease in the number of smaller vessels and an increase
in the number of larger vessels. Overall effort is expected to increase
over the actual effort that occurred during the moratorium, with more
effort directed at swordfish on the high seas. Landings of swordfish
and tuna are expected to increase, with the value of landings estimated
to rise from about $45 million in 1992 to about $60 million per year
after fleet adjustments have been made.
The amendment contains framework procedures to allow rapid
responses to changing conditions, including biological concerns for the
stocks, economic problems in the fisheries, and potential harm to
protected species under the Endangered Species Act, such as sea
turtles. This would simplify the implementation of needed changes in
the management program.
Non-permitted U.S. longline vessels could enter the exclusive
economic zone (EEZ) in the Council's area of concern and ports
shoreward of the EEZ with longline-caught fish on board provided the
longline gear is stowed or secured. These vessels would not be allowed
to offload management unit species shoreward of the outer boundary of
the EEZ. These measures are intended to relieve economic strains now
faced by longline vessel owners in Hawaii due to present limitations on
permit transfers and vessel upgrades.
Section 685.23 would be removed because the 5-year review was
completed in 1992 and this section is therefore no longer applicable.
It was noted that pelagic fisheries had changed dramatically and that
more frequent evaluation of the effectiveness of management was
necessary. Several amendments to the FMP already had been implemented
to address new issues. The Council now prepares an annual report on
this fishery under the FMP.
This rule also proposes to add three fish species to the management
unit (moonfish, Lamprus spp.; pomfret, Family Bramidae; and oilfish,
Family Gempylidae). The definition of overfishing applied to other
Pacific Pelagic Management Unit Species (excluding sharks) would apply
to the species added to the management unit. This would ensure that
collection of catch and effort data will be comprehensive.
In addition, the definition of protected species zone would be
revised to correct a drafting error when the zone was created (56 FR
52214, October 18, 1991). The current definition leaves open to
longline fishing a corridor between Laysan Island and Lisianski Island.
The intent of the Council in establishing the protected species zone
was to provide a continuous closed corridor around the NWHI in which
longline fishing would be prohibited to protect Hawaiian monk seals.
The rule would eliminate Sec. 685.26, which has procedures for
changing longline fishing prohibited areas, because the new framework
procedures in Sec. 685.18 would encompass the procedures for changing
longline fishing prohibited areas.
A consultation was conducted by NMFS under the Endangered Species
Act in 1993 to determine if the fishery, as it was being managed under
the FMP at that time, would jeopardize the continued existence of sea
turtles. A Biological Opinion and Incidental Take Statement were issued
June 10, 1993, that indicated the fishery is not likely to adversely
affect any endangered or threatened species of sea turtle, nor will it
adversely affect any critical habitat of any listed sea turtle species
during the 1-year term of the Opinion. An incidental take of 752
turtles was established. Several conservation recommendations and
reasonable and prudent measures were included in the Opinion and
Statement, which are in an Appendix to this Amendment 7. Through
complementary actions, the Council has also concurred with
establishment of a mandatory observer program and an electronic vessel
monitoring system requirement for the longline fishery. These measures
were included in the Opinion and Statement. The proposed amendment will
be evaluated for compliance with the Biological Opinion during the
public review process for Amendment 7.
The conservation of sea turtles is a special concern. In the
Biological Opinion and Incidental Take Statement, NMFS included a
conservation recommendation that the FMP be amended to preclude
increases in longline effort until it is demonstrated that the take of
turtles is being managed at a level that will not preclude recovery of
the species. Amendment 7 would establish a cap on potential harvesting
capacity by allowing vessel upgrades only to the size of the largest
vessel active in the moratorium period. The amendment indicates that it
is likely there will be some shift to larger vessels on average, and
that larger vessels generally deploy fewer hooks per set than small
vessels. Effort is not expected to increase above that which would have
occurred if all the vessels in the fleet had been active in the
moratorium. As noted, the amendment also proposes framework measures to
allow rapid regulatory response to new information, including
indications of need for management changes for protected resources. In
separate actions, the Council has concurred with establishment of a
mandatory observer program and a vessel monitoring system requirement.
In the Council's view, these measures taken together are sufficient to
control growth of the longline fishery and address future conservation
problems with new actions, if necessary, and the amendment complies
with the Biological Opinion and incidental take statement. NMFS
specifically solicits comments on this issue.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires the Secretary to
publish regulations proposed by a Council within 15 days of receipt of
the amendment and regulations. At this time, the Secretary has not
determined that Amendment 7 is consistent with the national standards,
other provisions of the Magnuson Act, and other applicable law. In
making that determination, the Secretary will take into account the
data, views, and comments received during the comment period.
This action is not subject to review under E.O. 12866.
The Council prepared a combined draft FMP amendment/Draft
Environmental Impact Statement (EIS) covering the impacts of the
fishery as managed under this amendment and alternative approaches. The
final amendment/final EIS satisfies NEPA requirements for documentation
and analysis of the impacts of the fishery on the environment.
A consultation under section 7 of the Endangered Species Act (ESA)
was conducted in 1993 and NMFS issued a Biological Opinion (Opinion)
and Incidental Take Statement (Statement) in June 1993 concerning the
take of sea turtles in the longline fishery. The Opinion concluded that
the fishery, as managed by the FMP at that time, is not likely to
jeopardize the continued existence of the species during the one-year
period of the Opinion. An incidental take of 752 turtles was set for
the one year during which the Opinion is in effect.
This rule, if adopted, is expected to have a significant economic
impact on a substantial number of small entities. Hawaii longline
vessel owners (approximately 166) will have more flexibility to buy and
sell vessels and permits and to upgrade their fishing vessels to
compete more effectively in the domestic longline fishery, as well as
with foreign fleets. It is estimated that total revenue from longline
landings would increase to $60 million per year from about $45 million
in 1992. The final amendment/FEIS also is written to serve as an IRFA
intended to satisfy the requirements of the Regulatory Flexibility Act.
This rule includes changes in an information collection previously
approved by the Office of Management and Budget (OMB No. 0648-0204). A
request for approval of these modifications and extension of the
collections is included in a request submitted by the Southwest Region,
NMFS, for approval of modification and extension of that collection
that covers all Southwest Region fishery permit programs. The proposed
program would require prospective participants in the Hawaii longline
fishery to submit permit application forms and supporting information,
including a current Certificate of Documentation from the U.S. Coast
Guard, to obtain a permit under the new limited entry program. Landings
records from the existing Hawaii longline logbook reporting requirement
will be used to determine whether an individual has met any landings
requirement to qualify for a permit. The estimated burden on the
applicants is 30 minutes per application. This is less than the average
of 1 hour or more that had been required for applications for permits
in the moratorium period because those applications often involved
documentation demonstrating intent to enter the longline fishery at a
time when investment decisions were made. The documentation
requirements under the new permit program will be simpler. This rule
also restates requirements for the submission of logbooks and post-
landing notifications. These requirements have already been approved by
OMB under Control Number 0648-0214. The response times for these
requirements were estimated to be 5 minutes per day for the logbook and
5 minutes per notification. Send comments regarding these burden
estimates or any other aspect of these collection-of-information
requirements, including suggestions for reducing burden, to the
Director of the Southwest Region, NMFS, and to OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 685
American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives,
Northern Mariana Islands.
Dated: February 17, 1994.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service.
For the reasons set forth in the preamble, 50 CFR part 685 is
proposed to be amended as follows:
PART 685--PELAGIC FISHERIES OF THE WESTERN PACIFIC REGION
1. The authority citation for part 685 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 685.2, the definition of ``Pacific pelagic management
unit species'' is amended by adding three new entries alphabetically to
the list of species; the definition of ``protected species zone'' is
amended by revising the last sentence of the definition; the definition
of ``receiving vessel'' is revised; the definition of ``substantial
financial investment'' is removed; and new definitions of ``Council'',
``Fisheries Management Division (FMD)'', ``Hawaii longline limited
entry permit'', ``length overall or length'', ``longline fishing
vessel'', ``longline general permit'', ``moratorium'', and ``receiving
vessel permit'' are added in alphabetical order, to read as follows:
Sec. 685.2 Definitions.
* * * * *
Council means the Western Pacific Regional Fishery Management
Council that was established under section 302 of the Magnuson Act.
* * * * *
Fisheries Management Division (FMD) means the Chief, Fisheries
Management Division, Southwest Regional Office, National Marine
Fisheries Service, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA
90802, or a designee.
* * * * *
Hawaii longline limited entry permit means the permit required by
Sec. 685.9(a)(2) to use a vessel to fish for Pacific pelagic management
unit species with longline gear in the EEZ or to land or transship
longline-caught fish shoreward of the EEZ around Hawaii.
* * * * *
Length overall or length of a vessel means the length overall set
forth in the Certificate of Documentation (CG-1270) issued by the U.S.
Coast Guard for a documented vessel, or in a registration certificate
issued by a state or the U.S. Coast Guard for an undocumented vessel
(addresses available from 50 CFR part 611, subpart A, appendix A). For
vessels that do not have the length overall stated in an official
document, or for a vessel for which NMFS requests confirmation of the
length overall, the length overall is the horizontal distance, rounded
to the nearest foot, between the foremost part of the stern and the
aftermost part of the stem, excluding bowsprits, rudders, outboard
motor brackets, and similar fittings or attachments (see Figure 1 of
this part).
* * * * *
Longline fishing vessel means a vessel that has longline gear on
board the vessel.
* * * * *
Longline general permit means the permit required by
Sec. 685.9(a)(1) to use a vessel to fish for Pacific pelagic management
unit species in the fishery management area excluding the EEZ around
Hawaii, or to land or transship longline-caught fish shoreward of the
outer boundary of the fishery management area, excluding the waters
shoreward of the EEZ around Hawaii.
* * * * *
Moratorium means the moratorium on new entry into the Hawaii
longline fishery in effect from April 23, 1991, through April 22, 1994.
* * * * *
Pacific pelagic management unit species means the following fish:
------------------------------------------------------------------------
Common name Scientific name
------------------------------------------------------------------------
*****
Moonfish (or opah)................. Lampris spp.
*****
Oilfish (or walu).................. Family Gempylidae.
Pomfret............................ Family Bramidae.
*****
------------------------------------------------------------------------
Protected species zone means * * * Parallel lines tangent to and
connecting those 50-nm areas around Nihoa Island and Necker Island,
French Frigate Shoals and Gardner Pinnacles, Gardner Pinnacles and Maro
Reef, Laysan Island and Lisianski Island, and Lisianski Island and
Pearl and Hermes Reef, delimit the remainder of the protected species
zone.
Receiving vessel means a vessel of the United States that has on
board the vessel longline-caught Pacific pelagic management unit
species but does not have longline fishing gear on board the vessel.
Receiving vessel permit means a permit required by Sec. 685.9(a)(3)
for a receiving vessel to transship or land Pacific pelagic management
unit species.
* * * * *
3. In Sec. 685.4, paragraph (b) introductory text is revised to
read as follows:
Sec. 685.4 Recordkeeping and reporting.
* * * * *
(b) The operator of any longline fishing vessel subject to
Sec. 685.9(a)(1) or (a)(2) must maintain on board the vessel an
accurate and complete fishing logbook for each day of each fishing
trip, which must include the following information:
* * * * *
4. In Sec. 685.5, paragraphs (e) through (h) are revised and
paragraphs (y), (z), (aa), (bb), and (cc) are added to read as follows:
Sec. 685.5 Prohibitions.
* * * * *
(e) Use a longline vessel without a valid general longline permit
or a Hawaii longline limited entry permit registered for use with that
vessel, to fish for Pacific pelagic management unit species in the EEZ
around American Samoa, Guam, the Northern Mariana Islands, or U.S.
possessions in the Pacific Ocean area.
(f) Use a longline fishing vessel without a valid Hawaii longline
limited entry permit registered for use with that vessel to fish for
Pacific pelagic management unit species in the EEZ around Hawaii.
(g) Use a receiving vessel without a valid receiving vessel permit
registered for use with that vessel to land or transship, shoreward of
the outer boundary of the Fishery Management Area Pacific pelagic
management unit species harvested with longline gear.
(h) Transfer a permit in violation of Sec. 685.9(j).
* * * * *
(y) Refuse to make available to an authorized agent for inspection
or copying any records that must be made available under Sec. 685.17.
(z) Use a U.S. vessel that has longline gear on board and that does
not have a valid Hawaii longline limited entry permit registered for
use with that vessel or a valid longline general permit registered for
use with that vessel to land or transship Pacific pelagic management
unit species shoreward of the outer boundary of the EEZ around American
Samoa, Guam, the Northern Mariana Islands, or U.S. possessions in the
Pacific Ocean area.
(aa) Use a U.S. vessel that has longline gear on board and that
does not have a valid Hawaii longline limited entry permit registered
for use with that vessel to land or transship Pacific pelagic
management unit species shoreward of the outer boundary of the EEZ
around Hawaii.
(bb) Enter the EEZ around Hawaii with longline gear that is not
stowed or secured in accordance with Sec. 685.25, if operating a U.S.
vessel without a valid Hawaii longline limited entry permit registered
for use with that vessel.
(cc) Enter the EEZ around American Samoa, Guam, the Northern
Mariana Islands, or U.S. possessions in the Pacific Ocean area with
longline gear that is not stowed or secured in accordance with
Sec. 685.25, if operating a U.S. vessel without a valid Hawaii longline
limited entry permit registered for use with that vessel or a longline
general permit registered for use with that vessel.
5. Section 685.9 is revised to read as follows:
Sec. 685.9 Permits.
(a) Permit requirements. (1) A longline fishing vessel of the
United States must be registered for use under a Hawaii limited entry
permit or a longline general permit if that vessel:
(i) Is used to fish for Pacific pelagic management unit species in
the EEZ around American Samoa, Guam, the Northern Mariana Islands, or
other U.S. island possessions in the Pacific Ocean; or
(ii) Is used to land or transship Pacific pelagic management unit
species, shoreward of the outer boundary of the EEZ around American
Samoa, Guam, the Northern Mariana Islands, or other U.S. island
possessions in the Pacific Ocean.
(2) A longline fishing vessel of the United States must be
registered for use under a Hawaii limited entry permit if that vessel:
(i) Is used to fish for Pacific pelagic management unit species in
the EEZ around Hawaii; or
(ii) Is used to land or transship Pacific pelagic management unit
species shoreward of the outer boundary of the EEZ around Hawaii.
(3) A receiving vessel must be registered for use with a receiving
vessel permit if that vessel is used to land or transship, shoreward of
the Fishery Management Area, Pacific pelagic management unit species
that were harvested with longline gear.
(b) Eligibility for initial permits. (1) Only a person who is
eligible to own a documented vessel under the terms of 46 U.S.C.
12102(a) may be issued a longline general permit under paragraph (a)(1)
of this section or a receiving vessel permit under paragraph (a)(3) of
this section.
(2) Any person who is eligible to own a documented vessel under the
terms of 46 U.S.C. 12102(a) is eligible for initial issuance of a
Hawaii limited entry permit under paragraph (a)(2) of this section,
provided that person on April 22, 1994:
(i) Owns a limited entry permit issued under this part during the
moratorium, and owns or owned a vessel that landed longline-caught
management unit species in Hawaii at least once during the moratorium;
or
(ii) Owns a limited entry permit issued under this part during the
moratorium for a vessel that is less than 40 feet (12 m) in length; or
(iii) Owns a limited entry permit issued to that person under
Sec. 685.15(c)(6) because that person was the holder of a permit for
the Northwestern Hawaiian Islands lobster fishery under 50 CFR 681.30.
(c) Application. (1) An application for a permit under this section
must be submitted on a Southwest Region Federal Fisheries Application
form obtained from the Pacific Area Office containing all the necessary
information, attachments, certification, signatures, and fees. In no
case will oral or telephone applications be accepted.
(2) A vessel owner must submit an application for a permit to the
Pacific Area Office at least 15 days before the desired effective date
of the permit. If an incomplete or improperly completed application is
filed, the applicant will be sent a notice of the deficiency. If the
applicant fails to correct the deficiency within 30 days following the
date of notification, the application will be considered abandoned.
(3) An application is complete when all required information,
attachments, certifications, signatures, and fees have been received.
(d) Change in application information. Any change in information on
the permit application form submitted under paragraph (c) of this
section must be reported to the Pacific Area Office at least 10 days
before the effective date of the change. Failure to report such changes
may result in termination of the permit.
(e) Issuance. After receiving a complete application, the FMD will
issue a permit to an applicant eligible for a permit under this
section.
(f) Fees. A fee is charged for each application for a Hawaii
longline limited entry permit (including initial permits, permit
transfers and permit renewals). The amount of the fee is calculated in
accordance with the procedures of the NOAA Finance Handbook for
determining the administrative costs of each special product or
service. The fee may not exceed such costs and is specified with each
application form. The appropriate fee must accompany each application.
Failure to pay the fee will preclude issuance of a limited entry
permit.
(g) Expiration. Permits issued under this section remain valid for
the period specified on the permit unless transferred, revoked,
suspended, or modified under 15 CFR part 904.
(h) Renewal. An application for renewal of any permit issued under
this section must be submitted to the Pacific Area Office in the same
manner as described in paragraph (c) of this section.
(i) Replacement. Replacement permits may be issued, without charge,
to replace lost or mutilated permits. An application for a replacement
permit is not considered a new application.
(j) Transfer. (1) 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.
(2) The owner of a Hawaii longline limited entry 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.
(3) An application for a permit transfer must be submitted to the
Pacific Area Office in the same manner as described in paragraph (c) of
this section.
(k) A permit will not be registered for use with a vessel that has
a length overall that is greater than the length overall of the vessel
that had the greatest length overall and that landed Pacific pelagic
management unit species under a limited entry permit during the
moratorium.
(l) Only a person who is 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 limited entry permit.
6. Section 685.13 is revised to read as follows:
Sec. 685.13 Notification of landings and transshipments.
The operator of a longline fishing vessel that is subject to the
permit requirements of Sec. 685.9(a) of this part shall contact the
Pacific Area Office by telephone, at a number provided to permit
holders, within 12 hours of the vessel's arrival at any port in Hawaii,
Guam, American Samoa, the Northern Mariana Islands, or U.S. possessions
in the Pacific Ocean area and report the name of the vessel, name of
the vessel operator, and the date and time of each landing or
transshipment of Pacific pelagic management unit species by the vessel
since its previous report of landing and/or transshipment.
7. Section 685.15 is revised to read as follows:
Sec. 685.15 Permit appeals.
(a) Except as provided in subpart D of 15 CFR part 904, any
applicant for a permit or any permit owner may appeal the granting,
denial, conditioning, suspension, or transfer of a permit or requested
permit to the Regional Director. In order to be considered by the
Regional Director, 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 FMD. The appellant may request
an informal hearing on the appeal.
(b) Upon receipt of an appeal authorized by this section, the
Regional Director may request additional information as will allow
action on the appeal. Upon receipt of sufficient information, the
Regional Director will decide the appeal in accordance with the
criteria set forth in this part and the Fishery Management Plan for
Pelagic Fisheries of the Western Pacific Region, as appropriate, 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 (c) of this section, and such other
considerations as deemed appropriate. The Regional Director 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.
(c) If a hearing is requested, or if the Regional Director
determines that one is appropriate, the Regional Director 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 for
reasons deemed equitable. 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 Director.
(d) The Regional Director may adopt the hearing officer's
recommended decision, in whole or in part, or may reject or modify it.
In any event, the Regional Director 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 Director's action shall
constitute final Agency action for the purposes of the Administrative
Procedure Act.
(e) Any time limit prescribed in this section may be extended for a
period not to exceed 30 days by the Regional Director for good cause,
either upon his or her own motion or upon written request from the
appellant stating the reason(s) therefore.
8. Section 685.17 is revised to read as follows:
Sec. 685.17 Availability of records for inspection.
Any fish dealer shall provide an authorized officer access for
inspecting and copying all records of fish purchases, sales, or other
transactions involving fish taken or handled by vessels that have
permits issued under this part or are otherwise subject to this part,
including but not limited to information concerning:
(a) The name of the vessel involved in each transaction and the
owner or operator of the vessel;
(b) The amount, number, and size of each species of fish involved
in each transaction; and
(c) The price(s) paid by the buyer and proceeds to the seller in
each transaction.
9. A new Sec. 685.18 is added to subpart A to read as follows:
Sec. 685.18 Framework procedures.
(a) Introduction. New management measures may be added, through
rulemaking, if new information demonstrates that there are biological,
social, or economic concerns in the fishery. The following framework
process allows for measures that may affect operation of the fisheries,
gear restrictions, quotas, or reductions or increases in longline catch
and/or effort if the information supports such a change. Additional
information may indicate the need for new management measures for other
sectors of the fishery, such as harvest guidelines, permits for certain
classes of vessels, or reporting requirements.
(b) Annual report--(1) Assessment of the fisheries. By June 30 of
each year, the Council-appointed Pelagics Plan Team will prepare an
annual report on fisheries in the fishery management area, containing
the following:
(i) Fishery performance data (e.g., landings, effort, value of
landings, species composition);
(ii) Summary of recent research and survey results;
(iii) Habitat conditions and recent alterations;
(iv) Enforcement activities and problems;
(v) Administrative action (e.g., data collection and reporting,
permits);
(vi) State and territorial management actions; and
(vii) Assessment of need for Council action (including biological,
economic, social, enforcement, administrative, and state/Federal needs,
problems, and trends). Indications of potential problems warranting
further investigation may be signaled by indicator criteria. These
criteria could include, but are not limited to, important changes in:
Mean size of the catch of any species; estimated ratio of fishing
mortality to natural mortality for any species; decline in catch per
unit effort by any sector; ex-vessel revenue of any sector; relative
proportions of gear in and around the EEZ; rate of entry/exit of
fishermen in the fisheries; revenues for a significant percentage of
any sector; total pelagic landings; species composition of the pelagic
landings; research results; habitat or environmental conditions; or
level of interactions between pelagic fishing operations and protected
species in the EEZ or surrounding waters.
(viii) Recommendations for Council action; and
(ix) Estimated impacts of recommended action.
(2) Recommendations for management action. The annual report shall
specify any recommendations made by the Pelagics Plan Team to the
Council. Recommendations may cover actions suggested for Federal
regulations, state/territorial action, enforcement or administrative
elements, and research and data collection. Recommendations will
include an assessment of urgency and the effects of not taking action
and will indicate whether changes involve existing measures, which may
be changed under paragraph (c) of this section, or new measures, which
may be implemented under paragraph (d) of this section.
(c) Procedure for changing established measures. (1) Established
measures are those that are or have been in place via rulemaking
procedures for various sectors of the fisheries, including, but not
limited to: General longline fishery permits; limited entry longline
fishery permits; longline logbooks and other reporting requirements;
longline area closures; and longline gear marking requirements. The
estimated and potential impacts of these measures have been evaluated
in past FMP amendments and associated documents.
(2) The Council will identify problems that may warrant action.
This may be through the annual report described in paragraph (b)(1) of
this section, or a separate report from the Pelagics Plan Team, the
Advisory Subpanel, Pelagics Review Board, Scientific and Statistical
Committee, pelagic fishery sector, enforcement officials, NMFS or other
sources. The Council will discuss at its next meeting whether changes
to established conservation and management measures would resolve the
problem. Notice to the public and news media preceding the meeting will
indicate that the Council intends to discuss and possibly recommend
regulatory adjustments through the framework process for established
measures to address the issue or problem. The notice must summarize the
issue(s) and the basis for recommending the measures being reviewed and
would refer interested parties to the document(s) pertaining to the
issue. Based on the discussions at the meeting, which could include
participation by the Pelagics Plan Team, Advisory Subpanel, Pelagics
Review Board, Scientific and Statistical Committee, or other Council
organizations, the Council will decide whether to recommend action by
the Regional Director. The Regional Director will be asked to indicate
any special concerns or objections to the possible actions being
considered under the framework process and, if there are any concerns
or objections, will be asked for ways to resolve them.
(3) If the Council decides to proceed, a document will be prepared
describing the problem and the proposed regulatory adjustment to
resolve it. The document will demonstrate how the adjustment is
consistent with the purposes of the established measure and that the
impacts had been addressed in the document supporting the original
imposition of the measure. The document will be submitted to the
Regional Director with a recommendation for action. The Council may
indicate its intent that the recommendations are to be approved or
disapproved as a single action.
(4) If the Regional Director approves part or all of the Council's
recommendation, the Secretary, in accordance with the Administrative
Procedure Act, may implement the approved change in an established
measure by publishing a final rule, waiving advance notice and comment.
This does not preclude the Secretary from deciding to provide
additional opportunity for advance notice and comment, but contemplates
that the Council process will satisfy the requirements of the Magnuson
Act and Administrative Procedure Act. It is emphasized that established
measures are measures that have been evaluated and applied in the past,
and adjustments are meant to be consistent with the original intent of
the measure and within the scope of analysis in previous documents
supporting the existing measure.
(5) Nothing in this section limits the authority of the Secretary
to take emergency action under section 305(e) of the Magnuson Act.
(d) Procedure for implementing new measures. (1) New measures are
those that have not been used before or measures that, while previously
applied, would be applied to another fishing sector (e.g., non-longline
pelagic fishery) or gear type for the first time. New measures may have
been previously considered in a past FMP amendment or document, but the
specific impacts on the persons to whom the measures would newly apply
have not been evaluated in the context of current conditions. Potential
new measures include, but are not limited to: Permit requirements for
new fishery sectors; reporting requirements for a fishery sector other
than longline fishing; effort limitations; quotas (for total catch or
by species) including individual transferable quotas; fractional
licensing; or bycatch limits.
(2) A Pelagics Plan Team report (annual report or an in-season
report), input from advisors, or input from NMFS or other agencies will
first bring attention to a problem or issue that needs to be addressed
at the next Council meeting. In its notice announcing the meeting, the
Council will summarize the concern or issue raised, the party that has
raised the problem, and the extent to which it is a new problem or a
problem that may require new management measures. The Council will seek
to identify all interested persons and organizations and solicit their
involvement in discussion and resolution of this problem through the
Council process, and the Council meeting notice in the Federal Register
will emphasize that this problem will be discussed and that proposed
actions may result.
(3) The document presenting the problem to the attention of the
Council will be distributed to all advisory bodies of the Council who
have not yet received it, with a request for comments. The document
also will be distributed to the Council's mailing list associated with
the FMP to solicit inputs and to indicate the Council will take up
action at the following meeting. The Council's chairperson may request
the Council's Pelagics Standing Committee to discuss the issue and
review the comments (if any) of the Pelagics Plan Team, Advisory Panel,
Pelagics Review Board, or Scientific and Statistical Committee, and
develop recommendations for Council action.
(4) At the meeting, the Council will consider the recommendations
of its Pelagics Standing Committee, if any, and other Council
organizations and will take comments from the public concerning the
possible course of action. If the Council agrees to proceed with
further action under the framework process, the issue will be placed on
the agenda for the following meeting. A document describing the issue,
alternative ways to resolve the issue, the preferred action, and the
anticipated impacts of the preferred action, will be prepared and
distributed to the public with a request for comments. A notice will be
published in the Federal Register summarizing the Council's
deliberations and preferred action and indicating the time and place
for the Council meeting to take final action.
(5) In its notice for the following meeting, the Council will
indicate that the Council may take final action on the possible
adjustment to regulations under this section. At the meeting, the
Council will consider the comments received as a result of its
solicitation of comments and take public comments during the meeting on
the issue or problem. The Council will consider any new information
presented or collected and analyzed during the comment period. The
Regional Director will be provided a specific opportunity to indicate
any objections or concerns about any or all components of the measures
being considered. The Council then will decide whether to propose a new
measure or measures under this section.
(6) If the Council decides to proceed, the Council will submit its
proposal to the Regional Director for consideration with supporting
rationale and an analysis of the estimated biological, economic and
social impacts of the proposed actions. The Council may indicate its
intent that all components of its recommendations be approved or
disapproved as a single action.
(7) If the Regional Director concurs in whole or in part, the
Secretary, in accordance with the Administrative Procedure Act, may
implement the approved new measure by publishing a final rule, waiving
advance notice and comment. Nothing in this procedure is intended to
preclude the Secretary from deciding to provide additional opportunity
for advance notice and comment in the Federal Register, but
contemplates that the Council process (which includes two Council
meetings with opportunity for public comment at each) will satisfy that
requirement.
(8) If a new action is approved and implemented, future adjustments
may be made under the procedure for established measures.
(9) Nothing in this section limits the authority of the Secretary
to take emergency action under section 305(e) of the Magnuson Act.
Sec. 685.23 [Removed]
Sec. 685.24 through 685.26 [Redesignated as Secs. 685.23 through
685.25]
10. Section 685.23 is removed and Secs. 685.24, 685.25, and 685.26
are redesignated Secs. 685.23, 685.24, and 685.25, respectively.
11. In newly redesignated Sec. 685.24 paragraphs (a)(1) and (f)
introductory text are revised to read as follows:
Sec. 685.24 Exemptions for longline fishing prohibited areas;
procedures.
(a) * * *
(1) Currently owns a Hawaii longline limited entry permit issued
under this part and registered for use with his or her vessel;
* * * * *
(f) The Council will consider information provided by persons with
Hawaii longline limited entry permits issued under this part who
believe they have experienced extreme financial hardship resulting from
the Hawaii longline area closure, and will consider recommendations of
the Pelagic Advisory Review Board to assess whether exemptions under
this section should continue to be allowed, and, if appropriate, revise
the qualifying criteria in paragraph (a) of this section to permit
additional exemptions.
* * * * *
12. Newly redesignated Sec. 685.25 is revised to read as follows:
Sec. 685.25 Port privileges and transiting for unpermitted longline
vessels.
A U.S. longline fishing vessel that does not have a permit under
Sec. 685.9(a)(1) or (a)(2) may enter waters of the fishery management
area with pacific pelagic management unit species on board, but may not
land or transship any management unit species on board the vessel. The
vessel's longline gear must be stowed or secured so it is rendered
unusable during the time the vessel is in those waters.
13. Figure 1 is added to part 685 as follows:
BILLING CODE 3510-22-P
TP24FE94.025
Length Overall--the horizontal distance between the foremost part of the
stem and the aftermost part of the stem, excluding bowspirits, rudders,
outboard motor brackets, and similar fittings or attachments. Rounded to
the nearest foot.
Stem--the foremost position of a vessel; a section of timber or cast,
forged or rolled metal to which the sides of a vessel are united at the
fore end with the lower and scarfed to the keel and the bowspirit, if
one is present, resting on the upper end.
Stern--the aftermost part of the vessel.
Figure 1.
[FR Doc. 94-4107 Filed 2-18-94; 1:13 pm]
BILLING CODE 3510-22-C
