Pelagic Fisheries of the Western Pacific Region; Proposed Rule

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