[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]