[Federal Register Volume 59, Number 100 (Wednesday, May 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12536]
[[Page Unknown]]
[Federal Register: May 25, 1994]
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DEPARTMENT OF COMMERCE
50 CFR Part 685
[Docket No. 940245-4134; 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: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 7 to the
Fishery Management Plan for the Pelagic Fisheries of the Western
Pacific Region (FMP). This rule establishes a limited entry program for
the Hawaii longline fishery for pelagic species. The rule also includes
broad framework procedures for more efficient administration of the
fishery. The action is intended to improve the management of the
longline fishery based in Hawaii to achieve optimum yield and prevent
overfishing.
EFFECTIVE DATE: 0001 hours Hawaii time, June 24, 1994.
ADDRESSES: Copies of the combined Amendment 7/Final Environmental
Impact Statement (FEIS)/Regulatory Flexibility Analysis (RFA) are
available from Ms. Kitty Simonds, Executive Director, Western Pacific
Fishery Management Council (Council), 1164 Bishop Street, suite 1405,
Honolulu, HI 96813. Send comments on the collection-of-information
request 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 (OMB), 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) and the Hawaii longline fishery
consisted of less than 40 relatively small vessels fishing primarily
near the Hawaiian Islands. Conditions are now very different. The
longline fishery based in Hawaii now consists of 167 vessels up to 101
ft (30.8 m) in length and targets swordfish, tuna, and other management
unit species. Vessels often travel up to 2,000 miles (3,219 km) from
port.
Due to the rapid growth of this fishery, concern was raised 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. This led to
establishment in April 1991 of a 3-year moratorium on new entry to the
Hawaii longline fishery. Amendment 7 to the FMP establishes a new
limited entry program for the Hawaii-based longline fishery.
The limited entry program requires permits that will be freely
transferable. Permit owners may upgrade their vessels or transfer their
permits for registration with other vessels provided the newly
designated vessel is no longer than 101 ft (30.8 m) in length as
measured in accordance with the rule. Initial permit issuance decisions
are made by the Fisheries Management Division, Southwest Region, NMFS.
The program includes provision for appeals of permit decisions to the
Regional Director, Southwest Region, NMFS (Regional Director). The rule
includes broad framework procedures for subsequent adjustment of the
conservation and management measures for the pelagics fisheries to
provide for more efficient administration of the fisheries. Three
species of fish are added to the management unit. The rule also makes
several technical changes to the regulations.
A proposed rule to implement Amendment 7 to the FMP was published
in the Federal Register on February 24, 1994 (59 FR 9050). The proposed
rule (1) described in detail the concerns being addressed by the
Council and actions taken by the Council and Secretary to address those
concerns, (2) summarized the measures proposed in Amendment 7 and the
objectives of the amendment, and (3) indicated the reasons for other
regulatory changes proposed. Those discussions will not be repeated
here. After consideration of public comment on the Amendment and the
proposed rule, Amendment 7 was approved; this final rule implements
that amendment.
This rule is consistent with the Administrative Procedure Act (5
U.S.C. 553), which requires that final rules be published not less than
30 days before they become effective. In the period between publication
of the final rule and the effective date, NMFS will advise moratorium
permit holders of the need to submit applications and supporting
information in a timely manner so that new limited entry permits can be
issued by the effective date of this rule.
Comments and Responses
Comments were received from, or on behalf of, 46 fishery
participants, workers in support industries, and other interested
parties. Most (40) favored approval of the amendment and the proposed
rule. Four commenters recommended disapproval or partial disapproval of
the amendment. Two commenters submitted technical comments concerning
the language of the permit eligibility criteria. In the proposed rule,
NMFS specifically invited comment on the adequacy of the proposed rule
and complementary actions taken by the Council and NMFS to ensure that
the take of sea turtles in the longline fishery would not be excessive.
One set of comments was received in response. Summaries of comments and
NMFS responses are provided below.
Comments (1): Comments favoring the amendment were received from 40
people. Most of these were on petitions from workers in the longline
fishery or support industries. The signers supported Amendment 7
because they felt it would provide stability, promote conservation, and
provide vessel owners with flexibility needed to make sound business
decisions. In addition, separate letters were received from seven
permit holders supporting the amendment. They felt it would prevent
overfishing and adverse impacts on other fisheries, would provide
needed flexibility to vessel owners to make business decisions, and
would maintain substantial economic benefits to the fishery
participants and support industries. All commenters supporting the
Amendment noted that existing area closures would be retained so that
there should be no adverse effects on other fisheries.
Response (1): None needed, Amendment 7 has been approved and is
being implemented by this final rule.
Comment (2): One individual (an owner of several of the larger
longline vessels with permits) recommended that the amendment be
disapproved because the fishery is already showing signs of economic
difficulty, with longer trips, smaller fish, and less profit. In the
commenter's view, allowing further vessel upgrades would exacerbate the
economic difficulties. The amendment also was criticized for allowing
upgrading of smaller vessels while prohibiting upgrading of larger
vessels.
Response (2): The available data do not indicate any economic or
biological problems in the fishery. The amendment indicates that the
average sizes of most species of fish landed have held relatively
steady since 1987, and the average size of swordfish has increased
since 1987. Aside from this commenter, no other participants in the
fishery have indicated that their catches or profits have declined,
except for fishermen who were effectively precluded from fishing
traditional grounds by the area closures imposed around the main
Hawaiian Islands. There is no indication that catch rates have
decreased due to excessive fishing pressure. The Council and NMFS
acknowledge that the expanded longline fishery has been operating for
only a few years and that many interested parties have expressed
concern about possible long-term impacts on the stocks or other
fisheries and protected species. Therefore, the Council has proposed an
approach to allow a limited increase in the fishery with greater
flexibility for fishermen to make business decisions. Controlled
expansion of the fishery will provide a basis for determining whether
the expanded fishery is affecting fish stocks or fishery participants
and whether corrective action is needed. If information later indicates
problems, the amendment includes framework procedures to address those
problems. Allowing upgrading of smaller vessels is intended to provide
a fair competitive opportunity within the longline fishery for owners
of small vessels that were effectively precluded from fishing when the
longline area closures went into effect. It is not expected that all
participants will acquire larger vessels to the maximum size permitted,
though some shift to larger vessels is expected. Finally, disapproval
of the amendment would result in no limit on participation. No change
was made to the rule in response to these comments.
Comment (3): One environmental conservation organization commented
in opposition to the amendment. This organization indicated the
moratorium on new entry should be continued until data are available
from the longline observer program and other sources to assess impacts
on sea turtles and the status of fish stocks harvested by the longline
fishery. This organization felt that the allowable incidental take of
sea turtles is excessive and was concerned that the amendment would
result in additional effort and thus a risk of higher turtle takes and
jeopardy to turtle stocks. The commenter also was critical of the low
level of coverage achieved in the voluntary program.
Response (3): The moratorium terminated at 12 midnight on April 22,
1994. If the amendment had been disapproved, there would no longer have
been any limitation on the number or size of longline vessels in the
fishery. The moratorium may not be continued unless the Secretary
rejects the amendment and issues regulations under the Secretary's
amendment authority. In the Secretary's view, the framework procedures
of Amendment 7 allow relatively quick action to adjust management
measures if needed to protect sea turtles or fish stocks.
A mandatory observer program was established by an interim final
rule published on December 22, 1993 (58 FR 67699). By April 10, 1994,
14 completed trips had been observed. This represents a significant
increase in observer coverage over the voluntary program. Consultations
under section 7 of the Endangered Species Act (ESA) have been
reinitiated and will consider data from the voluntary and mandatory
observer programs, and information on the status and trends of turtle
populations, to determine whether new conservation recommendations or
reasonable and prudent measures should be applied in this fishery.
With respect to the impacts of the fishery on fish stocks, the
available data indicate that no stocks have been affected by the
longline fishery to date. No changes have been made in the regulations
in response to these comments.
Comment (4): Two other commenters recommended partial disapproval
of the amendment. Both favored limited entry for the longline fishery,
but also favored limiting harvesting capacity of the fleet by only
allowing vessel upgrades for safety, and not providing permits to those
who did not fish in the moratorium. One emphasized the incomplete and
dated nature of much of the data used and criticized the management
system and fishery for the waste of sharks, noting that only a very
small portion of the shark catch is retained; this commenter also
suggested a quota system could be developed. The other commenter
proposed that, if vessel upgrades are allowed, gear upgrades should be
limited. A harvesting capacity quota approach should be developed in a
three-tier (small, medium, and large) vessel system. This commenter
feared that longliners could decimate stocks and then move to new
areas, leaving local fishermen to pay the price. Both commenters also
suggested that some Council members who worked on the amendment had
financial conflicts of interest.
Response (4): Many elements of the amendment already comport with
the commenters' recommendations; for example, the maximum number of
permits may be no more than the number in the moratorium, and permits
will not be issued to persons who did not fish (excluding small vessels
and persons who obtained longline permits due to linkage with lobster
permits) during the moratorium. However, the Council chose to allow
more flexibility for vessel upgrades to equalize the opportunity for
all vessel owners to compete in the fishery. The best scientific
information available has been used. The Council and NMFS acknowledged
the limitations of the data. The amendment includes framework
procedures so management adjustments can be made rapidly if the data
indicate a need for changes. The Council chose not to recommend a quota
system, given the inadequacy of data to determine allowable catch and
allocations to different fishermen. The Council considered gear
limitations but recognized the serious difficulty in enforcing such
limitations due to limited at-sea enforcement resources.
Issues of discards and bycatch have been raised to the Council, and
the Council will review the data collected under the mandatory observer
program to determine how to address these issues in the future. The
Council considered establishment of a harvesting capacity management
system and concluded that a fair and effective system would require
much additional data collection and analysis. The Council agreed to
continue work on alternate means to control effort and capacity for
implementation through the framework procedures in the amendment.
Regarding conflict of interest, the Magnuson Fishery Conservation
and Management Act (Magnuson Act) permits Council members with
financial interests in harvesting, marketing, or processing activities
to vote on matters that affect those interests, if disclosed publicly
in accordance with regulations governing Regional Fishery Management
Councils at 50 CFR part 601. No changes were made in the regulations in
response to these comments.
Comment (5): One commenter indicated that the regulations need to
be modified to accommodate people who may still have longline permit
applications pending under the moratorium.
Response (5): There were no permit applications pending when the
moratorium ended, therefore no change was necessary in the regulations
to respond to this comment.
Comment (6): The Council indicated that the language of the permit
eligibility criteria concerning the linkage between longline permits
and northwestern Hawaiian Islands (NWHI) lobster limited entry permits
needed revision to be consistent with the intent of the Council. That
is, the criteria in the proposed rule would not have afforded
eligibility for a Hawaii longline limited entry permit to someone who,
at the end of the moratorium, was the last holder of record of a
moratorium longline limited entry permit and held a northwest Hawaiian
Islands (NWHI) lobster limited entry permit, both of which were
obtained from another party. It was the Council's intent that a person
who obtained both permits from another party would thus be eligible for
a Hawaii longline limited entry permit based on ``the lobster fishery
criterion'' referred to in Amendment 7.
Response (6): A new paragraph Sec. 685.9(b)(2)(iv) has been added
to be consistent with the Council's intent. It is estimated that five
longline permit holders will be affected by this change by qualifying
for new permits under these criteria.
Changes from the Proposed Rule
An item inadvertently not discussed in the proposed rule is that
initial permit decisions are made by the Chief, Fisheries Management
Division, Southwest Region, NMFS. This final rule includes a provision
for appeals of permit decisions to the Regional Director. Experience in
the moratorium program indicates a need for an appeal process to review
decisions that applicants believe are incorrect or based on faulty
interpretation of facts.
The definition of ``length overall'' of a vessel has been revised
to mean only the horizontal distance between the foremost part of the
stem and the aftermost part of the stern. The length overall does not
include fittings or attachments that extend beyond these two points,
including bowsprits, rudders, or outboard motor brackets. References in
the proposed definition to other vessel length measurements appearing
in U.S. Coast Guard or state vessel registration documents have been
removed because they could have resulted in the use of different vessel
length measurement systems. As revised, the definition provides a
consistent and uniform method of determining vessel length for all
vessels participating in the fishery; it is the same method of length
measurement used in many other federally regulated fisheries. Under
this definition, the longest vessel active in the fishery in the
moratorium is 101 feet (30.8 m) rather than 93 feet (28 meters), as
described in the preamble to the proposed rule.
The eligibility criteria for issuance of a Hawaii limited entry
permit in Sec. 685.9(b)(2) were modified. As noted in response to
comment Number 6 the linkage between longline permits and NWHI lobster
limited entry permits was modified to be consistent with Council
intent. Also, several moratorium permits were invalidated due to the
sinking or destruction of vessels. The holders of these permits had
been active during the moratorium period and therefore would qualify
for permits under the new program. By focussing on the last holder of
record of limited entry permits issued under the moratorium, the final
rule provides that these individuals will qualify for new permits,
consistent with the intent of Amendment 7.
A prohibition (Sec. 685.9(a)(4)) was added to require that
necessary permits be on board vessels and available for inspection by
an authorized agent unless the vessel was at sea when the permit was
issued, in which case the permit must be on board the vessel on the
next trip. The requirement for the permit to be on board the vessel was
in effect during the moratorium, but was inadvertently omitted from the
proposed rule.
A deadline for applications for initial Hawaii longline limited
entry permits has been set in Sec. 685.9(c) to ensure that the number
of permits will be limited after a given period of time. Applications
must be submitted within 120 days after the date of publication in the
Federal Register. The Council will be considering changes in allowable
participation and effort in the future and needs to know the size of
the permitted fleet in order to evaluate the benefits and costs of
changes in regulations.
A change was made to the observer program (Sec. 685.11) to refer to
Hawaii longline limited entry permit requirements (Sec. 685.9(a)(2)),
so that the notification requirements of Sec. 685.11 will apply to
owners of vessels with such permits.
Technical changes were made in the designation of sections and
paragraphs due to the expiration of provisions implemented under the
moratorium on new entry to the longline fishery.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Council prepared a combined final FMP amendment/Final
Environmental Impact Statement (EIS)/Regulatory Flexibility Analysis
(RFA) covering the impacts of the fishery as managed under this
amendment and alternative approaches. The final FMP amendment/final EIS
satisfies National Environmental Policy Act 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 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. Consultations have been
reinitiated and a new Biological Opinion is being prepared. A new
consultation to address Amendment 7 is not necessary.
This rule is expected to have a significant economic impact on a
substantial number of small entities. Hawaii longline vessel owners
(approximately 167) 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 will
increase to $60 million per year from about $45 million in 1992. The
final amendment/FEIS includes an RFA that is adopted as final without
change.
This rule includes a change in an information collection previously
approved by the Office of Management and Budget (OMB No. 0648-0204).
The change is included in a request submitted by the Southwest Region,
NMFS, for approval of modification and extension of the current
collection that covers all Southwest Region fishery permit programs.
The change requires 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 or transfer 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 the 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 the
moratorium applications required documentation of 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: May 17, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 685 is amended
to read 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; 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'', ``receiving vessel'', 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 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 around Hawaii or to land or
transship longline-caught Pacific pelagic management unit species
shoreward of the outer boundary of the EEZ around Hawaii.
* * * * *
Length overall or length of a vessel means the horizontal distance,
rounded to the nearest foot (with 0.5 feet and above rounded upward),
between the foremost part of the stem and the aftermost part of the
stern, excluding bowsprits, rudders, outboard motor brackets, and
similar fittings or attachments (see Figure 1 of this part). ``Stem''
is the foremost part of the vessel, consisting of a section of timber
or fiberglass, or cast, forged, or rolled metal, to which the sides of
the vessel are united at the fore end, with the lower end united to the
keel, and with the bowsprit, if one is present, resting on the upper
end. ``Stern'' is the aftermost part of the vessel.
* * * * *
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 that was 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-nautical mile 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
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 taken by other vessels using longline gear.
* * * * *
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 (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;
paragraphs (r) through (x) are redesignated as paragraphs (n) through
(t), respectively; and paragraphs (u), (v), (w), (x), (y), and (z) are
added to read as follows:
Sec. 685.5 Prohibitions.
* * * * *
(e) Use a longline vessel without a valid longline general 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).
* * * * *
(u) Refuse to make available to an authorized agent for inspection
or copying any records that must be made available under Sec. 685.17.
(v) 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.
(w) 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.
(x) 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.
(y) 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.
(z) Fail to have on board the vessel and available for inspection
by an authorized agent any permit required under Sec. 685.9 unless the
vessel was at sea when the permit was issued, in which case the permit
must be on board the vessel before its next trip.
5. Section 685.9 is revised to read as follows:
Sec. 685.9 Permits.
(a) Permit requirements. (1) A fishing vessel of the United States
must be registered for use under a Hawaii longline limited entry permit
or a longline general permit if that vessel:
(i) Is used to fish for Pacific pelagic management unit species
using longline gear 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, 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, Pacific pelagic
management unit species that were harvested with longline gear.
(2) A fishing vessel of the United States must be registered for
use under a Hawaii longline limited entry permit if that vessel:
(i) Is used to fish for Pacific pelagic management unit species
using longline gear in the EEZ around Hawaii; or
(ii) Is used to land or transship, shoreward of the outer boundary
of the EEZ around Hawaii, Pacific pelagic management unit species that
were harvested with longline gear.
(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 outer boundary of the Fishery Management Area, Pacific pelagic
management unit species that were harvested with longline gear.
(4) Any required permit must be on board the vessel and available
for inspection by an authorized agent, except that if the permit was
issued while the vessel was at sea, this requirement applies only to
any subsequent trip.
(5) 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.
(b) Eligibility for initial permits. (1) Only a person 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 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:
(i) Was the last holder of record of 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) Was the last holder of record of a limited entry permit issued
under this part during the moratorium for a vessel that is less than 40
ft (12 m) in length; or
(iii) Was the last holder of record of a limited entry permit
issued under this part during the moratorium, which was issued to that
person because he or she was eligible for a permit under 50 CFR 681.30
for the Northwestern Hawaiian Islands lobster fishery; or
(iv) Was the last holder of record of a limited entry permit issued
under this part during the moratorium and owned a permit issued under
50 CFR 681.30 for the Northwestern Hawaiian Islands lobster fishery.
(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.
(4) Applications for initial permits under paragraph (a)(2) of this
section must be submitted on or before September 21, 1994.
(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
will result in invalidation 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 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) 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.
(2) An application for a permit transfer must be submitted to the
Pacific Area Office as described in paragraph (c) of this section.
(k) A Hawaii longline limited entry permit will not be registered
for use with a vessel that has a length overall that is longer than 101
ft (30.8 m).
(l) 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 limited entry permit.
Sec. 685.11 [Amended]
6. In Sec. 685.11(a), substitute ``Sec. 685.9(a)(2)'' for
``Sec. 685.9''.
7. Section 685.13 is revised to read as follows:
Sec. 685.13 Notification of landings and transshipments.
The operator of a longline fishing vessel subject to the permit
requirements of Sec. 685.9(a) of this part must 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's 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.
8. 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 to the Regional
Director the granting, denial, conditioning, suspension, or transfer of
a permit or requested permit. 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. Upon receipt of
sufficient information, the Regional Director will decide the appeal in
accordance with the criteria set out in this part and in 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. 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) therefor.
9. 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 that 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.
10. Section 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 the 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, requirements governing: Longline general permits; Hawaii
longline limited entry 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 Fishery Management Plan amendments and
associated documents.
(2) The Council will identify problems that may warrant action
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.
Identified problems will be addressed as follows:
(i) At a Council Meeting following completion or receipt of a
report identifying a problem, the Council will discuss 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.
(ii) Based on 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.
(iii) 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 regarding prior notice and
comment. Established measures are measures that have been evaluated and
applied in the past, and adjustments under this framework must 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(c) 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 Fishery Management Plan to solicit comments 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 it 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 will then decide whether to recommend a new measure or
measures under this section.
(6) If the Council decides to proceed, it 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(c) of the Magnuson Act.
Sec. 685.23 [Removed]
Secs. 685.24-685.26 [Redesignated as Secs. 685.23-685.25]
11. 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.
12. In newly redesignated Sec. 685.24, paragraph (a)(1) and
paragraph (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.
* * * * *
13. 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 (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.
14. Figure 1 is added to part 685 to read as follows:
BILLING CODE 3510-22-P
TR25MY94.000
BILLING CODE 3510-22-C
Length Overall--the horizontal distance, rounded to the nearest
foot (with 0.5 feet and above rounded upward), between the foremost
part of the stem and the aftermost part of the stern, excluding
bowsprits, rudders, outboard motor brackets, and similar fittings or
attachments.
Stem--the foremost part of the vessel, consisting of a section of
timber or fiberglass, or cast, forged, or rolled metal, to which the
sides of the vessel are united at the fore end, with the lower end
united to the keel, and with the bowsprit, if one is present, resting
on the upper end.
Stern--the aftermost part of the vessel.
[FR Doc. 94-12536 Filed 5-20-94; 3:04 pm]
