[Federal Register Volume 66, Number 147 (Tuesday, July 31, 2001)]
[Proposed Rules]
[Pages 39475-39479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19061]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010710171-1171-01; I.D. 051401B]
RIN 0648-AL41


Fisheries off West Coast States and in the Western Pacific; 
Pelagic Fisheries; Prohibition on Fishing for Pelagic Management Unit 
Species; Nearshore Area Closures Around American Samoa by Vessels More 
Than 50 Feet in Length

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes a rule which would prohibit certain vessels from 
fishing for Pacific pelagic management unit species (PMUS) within 
nearshore areas approximately 50 nautical miles (nm) around the islands 
of American Samoa. This prohibition would apply to vessels that measure 
more than 50 ft (15.2 m) in overall length and that did not land PMUS 
prior to November 13, 1997. This action is being proposed and is 
intended to address concerns that the entry of vessels greater than 50 
ft (15.2 m) in length into the pelagic fishery around American Samoa 
could lead to gear conflicts and catch competition with locally based 
small fishing vessels. Such conflicts and competition could lead to 
reduced opportunities for sustained participation by residents of 
American Samoa in the small-scale pelagic fishery.

DATES: Comments on this proposed rule will be accepted through 
September 14, 2001.

ADDRESSES: Written comments on this proposed rule must be mailed to Dr. 
Charles Karnella, Administrator Pacific Islands Area Office (PIAO), 
NMFS, 1601 Kapiolani Blvd. Suite 1101, Honolulu, HI 96822 or sent via 
facsimile (fax) to 808-973-2941. Comments will not be accepted if 
submitted via e-mail or the Internet. Copies of the Council's 
background document on the proposed action and accompanying 
environmental assessment/initial regulatory flexibility analysis (EA/
IRFA) are available from Kitty Simonds, Executive Director, Western 
Pacific Regional Fishery Management Council (Council), 1164 Bishop St, 
Suite 1400, Honolulu, HI 96813.

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FOR FURTHER INFORMATION CONTACT: Contact Alvin Katekaru, PIAO, 808-973-
2937.

SUPPLEMENTARY INFORMATION: Fishery participants have expressed concerns 
that current regulations allow unrestricted fishing in the U.S. 
exclusive economic zone (EEZ) around American Samoa by U.S. fishing 
vessels. There are large differences in impacts on fishery resources 
between the American Samoa small-vessel fishing fleet and large fishing 
vessels (greater than 50 ft (15.2 m) in overall length) that would be 
prohibited from fishing for PMUS in the closed areas that would be 
established by the proposed rule. Large pelagic longline fishing 
vessels have much greater fishing power, as they use two to three times 
the number of hooks, have longer longlines, have longer soak times 
(length of time that the longline is left in the water for fishing 
purposes), and possess greater hold capacity. There are approximately 
60 small vessels (less than 50 ft (15.2 m) in length) in American Samoa 
that use relatively simple troll and longline fishing gear to target 
PMUS. The majority of pelagic troll fishing activity occurs within 20 
nm of shore; the local small vessel longline fleet ranges out to about 
50 nm. Based on historical data, the majority of the fishing effort by 
the local small-vessel fleet takes place to the south and east of the 
main island of Tutuila. Large pelagic longline, tuna purse seine, and 
albacore troll vessels, which comprise much of the domestic tuna 
fishing fleet, are highly mobile. This mobility enables them to seek 
new fishing opportunities in the central and western Pacific waters as 
other domestic fisheries become increasingly restricted. An influx of 
these large vessels into the nearshore waters surrounding American 
Samoa could lead to gear conflicts, catch competition, and reduced 
opportunities for sustained fishery participation by the locally based 
small boat operators. Local fishermen and associated fishing 
communities depend on this fishery not only for food, income, and 
employment, but also for the preservation of the Samoan culture.
    The average annual catch of skipjack tuna by a U.S. tuna purse 
seiner operating in the central and western Pacific between 1990 and 
1997 was 3,161 mt (6,970,231 lb,) and a typical 65-foot (19.8 m) 
Hawaii-based longliner, which sets 1,200 to 1,500 hooks per day, has an 
average annual catch of 113.4 mt (250,000 lb). In comparison, a typical 
American Samoa small-scale longline vessel sets 200 to 500 hooks per 
day and catches an average of 15.9 mt (35,000 lb) of fish per year. In 
addition to the potential for catch competition, physical gear 
conflicts between small vessels and large longliners are possible if 
the large vessels were to set 48.3 km (30 mi) of mainline (the Hawaii 
average) within 50 nm from the shore of American Samoa.
    In response to these concerns, at its June 2000 meeting, the 
Council recommended a change to the regulations implementing the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region (Pelagic FMP). Specifically, the Council recommended closing the 
area approximately 50 nm around American Samoa to large vessels fishing 
for PMUS. A description of the proposed area closures was circulated to 
interested parties prior to the Council's decision to make this 
recommendation. The Council specifically requested that NMFS solicit 
comments on whether tuna purse seiners should be exempt from the 
proposed prohibitions and to consider exempting them in the final rule.
    Under this proposed rule, U.S. vessels more than 50 ft (15.2 m) in 
overall length, hereafter referred to as large 
vessels, would be prohibited from fishing for PMUS within 
areas approximately 50 nm of the islands of American Samoa. The 
boundaries of the proposed closed areas would be defined by latitude 
and longitude and would be delineated as straight lines drawn point to 
point, instead of 50-nm contours, to facilitate enforcement and to 
clearly demarcate the boundary for the public. The current owner of a 
longline vessel that was used (i.e., used by any person, not 
necessarily the current owner) to make at least one landing of PMUS in 
American Samoa on or before November 13, 1997, would be exempt from the 
proposed prohibition. Exemptions could be registered for use with other 
vessels owned by the same person; however, exemptions could not be 
applied to a replacement vessel that is larger than the vessel for 
which it was originally issued. If more than one person (e.g., a 
partnership or corporation) owned a large vessel when it was registered 
for use with a general longline permit and made at least one landing of 
a PMUS prior to November 13, 1997, an exemption would be issued to only 
one person.
    At the Council's November 2000 meeting, Council members 
representing American Samoa requested the Council to consider an 
additional exemption to the proposed area closures for U.S. tuna purse 
seine vessels. The Council believes that such an exemption would likely 
have minimal direct impact on small fishing vessels or provide little 
benefit to the purse seiners because fishery data indicate that no more 
than ten tuna purse seine sets were made within American Samoa's EEZ 
(and probably outside the proposed closed areas) during the past 
decade. However, the exclusion of U.S. tuna purse seine vessels from 
the nearshore areas could set a negative precedent and encourage other 
Pacific island nations, in whose EEZs the U.S. tuna purse seine fleet 
currently fishes, to similarly constrain fishing opportunities for U.S. 
domestic tuna purse seine vessels. NMFS specifically requests public 
comments on this issue.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an IRFA that describes the impact this 
proposed rule would have on small entities, if adopted. A summary of 
the IRFA follows:
    A description of the reasons why action by the agency is being 
considered and the objectives of the action are explained in the 
Summary and Supplemental Information sections of this preamble and are 
not repeated here. This action does not contain reporting and 
recordkeeping requirements or any compliance requirements that would 
impact small entities. It will not duplicate, overlap, or conflict with 
any other Federal rules. This action is taken under authority of the 
Magnuson-Stevens Fishery Conservation and Management Act and 
regulations at 50 CFR part 660.
    This rule would impact 73 vessels, including 61 small-scale vessels 
(less than 50 ft) and 12 large vessels (greater than 50 ft). Both large 
and small longline vessels affected by this proposed rule are 
considered to be ``small entities'' under guidelines issued by the 
Small Business Administration because they are independently owned and 
operated, and have annual receipts not in excess of $3 million dollars.
    There may be positive long-term economic impacts to those vessels 
that are able to fish within 50 nm from shore. These benefits would be 
based on the ability of small vessels to sustain the fishery, and to 
develop and utilize technology that would allow them to sell their 
catch in the fresh albacore market. Fresh albacore can command premium 
prices (up to $4.75/lb) as compared to the cannery market ($1.06/lb) in 
which they now participate. However, the ability to sell their catch to 
the fresh albacore market in American Samoa is not pivotal to the 
success of the small vessels, which is

[[Page 39477]]

mainly driven by the canneries. A more realistic price for fresh 
albacore landed in the U.S. mainland is $2.25/lb, and at that price, 
the cost of exporting their catch would likely not generate any greater 
profit than obtained from the cannery.
    According to limited data and anecdotal information, the large 
vessels comprising the longline fleet are currently fishing in the EEZ 
at a distance of greater than 50 nm from shore. If this is indeed true, 
the proposed rule would have no economic impact on those vessels, since 
the requirement to fish outside 50 nm would not alter their fishing 
behavior. In addition, if vessel captains and owners exhibit rational 
economic behavior under these conditions, then it would follow that it 
is more profitable for these vessels to continue fishing outside, as 
opposed to inside, the 50 nm line. However, if the limited information 
is not accurate, there would be added costs to fishing further 
offshore, e.g., the cost of fuel and food, which may or may not affect 
vessel profitability. This depends on the relative rates of increase in 
average revenues versus average costs of fishing further offshore. NMFS 
staff have spoken to several large vessel fishermen, who attest to the 
fact that the added costs of fishing offshore beyond the 50 nm boundary 
are indeed offset by the higher catch rates. Other benefits, including 
increased safety through elimination of gear conflicts, of establishing 
closed areas around American Samoa to exclude large pelagic fishing 
vessels are difficult to quantify, as interactions between pelagic 
fisheries are difficult to document or model due to limitations of 
available data, insufficient knowledge of the biology and population 
dynamics of the resource, and poor understanding of environmental 
influences. As of June 2001, there were twelve large longliners based 
in American Samoa, two of which would be exempted from this rule.
    The Council, in its desire to mitigate potential adverse impacts 
from implementation of this framework action, moved to include those 
large vessels that were historical participants by proposing an 
exemption which would allow vessels that held permits in the fishery 
prior to the control date of November 13, 1997, to continue fishing 
within 50 nm off shore.
    The impact of the proposed action on the local tuna canneries in 
American Samoa is expected to be negligible as a result of excluding a 
few large longliners, currently based in the islands, from fishing 
within the closed areas. These vessels would not qualify for exemptions 
from the area closure. In 1998, the total amount of albacore tuna 
(636,000 lb or 288 mt), the target pelagic species landed by large U.S. 
longline vessels at the canneries, represented less than 1 percent of 
the total tuna delivered to the canneries. Furthermore, most, if not 
all, of the albacore catches made by the large longliners were from 
areas beyond 50 nm from the shore of American Samoa.
    The Council rejected an alternative that would have closed waters 
within 100 nm around American Samoa because the Council determined that 
the potential negative economic impacts on large vessels would outweigh 
the possible benefits to the local small-vessel fishing fleet of 
approximately 30 active vessels fishing generally within 50 nm from 
shore. The potential costs to large longline vessels prohibited from 
fishing in the closed areas under this alternative would consist of 
increased fuel costs and travel time to reach available fishing 
grounds. On the other hand, the small local fishing vessels, even the 
newer, larger models, have a limited capacity for storing and chilling 
fish, which discourages fishing beyond 50 nm due to very low 
efficiency.
    The Council rejected a second alternative that would have closed 
waters within 50 nm of the islands of Tutuila and Manu'a, Rose Atoll, 
and within 30 nm of Swains Island because the Council determined that 
this approach would provide unequal and insufficient protection for 
small vessels that may choose to fish around Swains Island, as well as 
for those that may decide, in the future, to be home ported there.
    The Council also rejected a third alternative that would have 
excluded large U.S. pelagic fishing vessels from waters around American 
Samoa in which the Pelagic FMP already prohibits longline fishing by 
foreign vessels (an area approximately 20 nm around each island) 
because the Council determined that such small closed areas would 
provide insufficient protection for the local small-vessel fishing 
fleet.
    On March 29, 2001, NMFS concluded a formal consultation under 
section 7 of the Endangered Species Act (ESA) with a biological opinion 
(BO) stating that the continued operation of the pelagic fisheries in 
the western Pacific region under the Pelagic FMP is likely to 
jeopardize the continued existence of green turtles, leatherback 
turtles, and loggerhead turtles. Although the BO indicates that the 
non-Hawaii pelagic fisheries, such as those in American Samoa, probably 
have minimal levels of interaction with ESA listed species, they add to 
the jeopardy situation. The BO includes reasonable and prudent 
alternatives to avoid the likelihood of jeopardy, such as sea turtle 
handling and resuscitation techniques and regulations governing the 
non-Hawaii pelagic fisheries to reduce the likelihood of harmful 
impacts to sea turtles incidentally taken by longline, troll, and 
handline fishing gear employed by U.S. domestic fishing vessels. Also, 
the BO requires NMFS (where feasible) to establish an observer program 
for the non-Hawaii pelagic fisheries.
    In an informal consultation for the proposed rule establishing 
American Samoa closed areas, NMFS will assess whether this proposed 
rule would be likely to adversely affect sea turtles in ways not 
contemplated by the March 29, 2001, BO.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, and 
Reporting and recordkeeping requirements.

    Dated: July 24, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 
proposed to be amended as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. Section 660.12 is amended by adding the definition of ``Large 
vessel'' and revising the definition of ``Length overall (LOA) or 
length of a vessel'' as follows:


Sec. 660.12  Definitions.

* * * * *
    Large vessel means, as used in Secs. 660.22, 660.37, and 660.38, 
any vessel greater than 50 ft (15.2 m) in overall length.
    Length overall (LOA) or length of a vessel means, as used in Secs.  
660.21(i) and 660.22, the horizontal distance, rounded to the nearest 
foot (with any 0.5 foot or 0.15 meter fraction 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 2 to this part). ``Stem'' is the 
foremost part of the vessel, consisting of a section of

[[Page 39478]]

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.
* * * * *

    3. In Sec. 660.22, paragraph (uu) is added to read as follows:


Sec. 660.22  Prohibitions.

* * * * *
    (uu) Use a large vessel to fish for Pacific pelagic management unit 
species within an American Samoa large vessel prohibited area except as 
allowed pursuant to an exemption issued under Sec. 660.38.

    4. A new Sec. 660.37, under subpart C, is added to read as follows:


Sec. 660.37  American Samoa pelagic fishery area management.

    (a) Large vessel prohibited areas. A large vessel of the United 
States may not be used to fish for Pacific pelagic management unit 
species in the American Samoa large vessel prohibited areas as defined 
in paragraphs (b) and (c) of this section, except as allowed pursuant 
to an exemption issued under Sec. 660.38.
    (b) Tutuila Island, Manu'a Islands, and Rose Atoll. The large 
vessel prohibited area around Tutuila Island, the Manu'a Islands, and 
Rose Atoll consists of the waters of the EEZ around American Samoa 
bounded by straight lines connecting the following coordinates in the 
order listed:

------------------------------------------------------------------------
                   Point                       S. lat.       W. long.
------------------------------------------------------------------------
A                                            13 deg. 30'    170 deg. 49'
                                                                     42"
B                                            13 deg. 30'    167 deg. 30'
C                                            15 deg. 30'    167 deg. 30'
D                                            15 deg. 30'    171 deg. 51'
------------------------------------------------------------------------

    and of the EEZ boundary connecting points D and A.
    (c) Swains Island. The large vessel prohibited area around Swains 
Island consists of the waters of the EEZ around American Samoa bounded 
by straight lines connecting the following coordinates in the order 
listed:

------------------------------------------------------------------------
                   Point                       S. lat.       W. long.
------------------------------------------------------------------------
A                                            10 deg. 38'    170 deg. 40'
B                                            11 deg. 28'    170 deg. 40'
C                                            11 deg. 28'    171 deg. 30'
D                                            10 deg. 38'    171 deg. 30'
------------------------------------------------------------------------

    and of the EEZ boundary connecting points D and A.

    4. A new Sec. 660.38, under subpart C, is added to read as follows:


Sec. 660.38  Exemptions for American Samoa large vessel prohibited 
areas.

    (a) An exemption will be issued to a person who currently owns a 
large vessel, to use that vessel to fish for Pacific pelagic management 
unit species in the American Samoa large vessel prohibited management 
areas, if he or she had been the owner of that vessel when it was 
registered for use with a longline general permit and made at least one 
landing of Pacific pelagic management unit species in American Samoa on 
or prior to November 13, 1997.
    (b) A landing of Pacific pelagic management unit species for the 
purpose of this section must have been properly recorded on a NMFS 
Western Pacific Federal daily longline form that was submitted to NMFS, 
as required in Sec. 660.14.
    (c) An exemption is valid only for a vessel that was registered for 
use with a longline general permit and landed Pacific pelagic 
management unit species in American Samoa on or prior to November 13, 
1997, or for a replacement vessel of equal or smaller LOA than the 
vessel that was initially registered for use with a longline general 
permit on or prior to November 13, 1997.
    (d) An exemption is valid only for the vessel for which it is 
registered. An exemption not registered for use with a particular 
vessel may not be used.
    (e) An exemption may not be transferred to another person.
    (f) If more than one person, e.g., a partnership or corporation, 
owned a large vessel when it was registered for use with a longline 
general permit and made at least one landing of Pacific pelagic 
management unit species in American Samoa on or prior to November 13, 
1997, an exemption issued under this section will be issued to only one 
person.

    5. Figure 2 to part 660 is revised to read as follows:
    Figure 2 to Part 660 Subpart C - Length of Fishing Vessel
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[FR Doc. 01-19061 Filed 7-30-01; 8:45 am]
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