[Federal Register Volume 67, Number 20 (Wednesday, January 30, 2002)]
[Rules and Regulations]
[Pages 4369-4372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2261]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010710171-2013-02; 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: Final rule.

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SUMMARY: NMFS issues this final rule to prohibit certain vessels from 
fishing for Pacific pelagic management unit species (PMUS) within 
nearshore areas seaward of 3 nautical miles (nm) to approximately 50 nm 
around the islands of American Samoa. This prohibition applies to 
vessels that measure more than 50 ft (15.2 m) in length overall and 
that did not land pelagic management unit species in American Samoa 
under a Federal longline general permit prior to November 13, 1997. 
This action is intended to prevent the potential for gear conflicts and 
catch competition between large fishing vessels and 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: Effective March 1, 2002.

ADDRESSES: Copies of the Final Environmental Impact Statement for the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region (FEIS) may be obtained from Dr. Charles Karnella, 
Administrator, NMFS, Pacific Islands Area Office (PIAO), 1601 Kapiolani 
Blvd., Suite 1110, Honolulu, HI 96814. Copies of the regulatory impact 
review/final regulatory flexibility analysis (RIR/FRFA) prepared for 
this final rule may be obtained from Ms. Kitty Simonds, Executive 
Director, Western Pacific Fishery Management Council, 1164 Bishop 
Street, Suite 1400, Honolulu, HI 96813.

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

SUPPLEMENTARY INFORMATION: A proposed rule was published in the Federal 
Register on July 31, 2001 (66 FR 39475). As discussed in the proposed 
rule, small vessel fishermen have raised concerns over the potential 
for gear conflicts between the small-vessel (less than or equal to 50 
ft (15.2 m) in length overall) fishing fleet and large longline fishing 
vessels greater than 50 ft (15.2 m) length overall, hereafter called 
``large vessels,'' targeting PMUS in the American Samoa pelagic 
fishery, as well as regarding adverse impacts on fishery resources 
resulting from the increased numbers of large fishing vessels in the 
fishery. Due to the limited mobility of the smaller vessels, an influx 
of large domestic vessels fishing in the nearshore waters of the U.S. 
exclusive economic zone (EEZ) around 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 
their Samoan culture.
    This final rule, is a regulatory amendment under the Fishery 
Management Plan for the Pelagic Fisheries of the Western Pacific Region 
(FMP). It prohibits U.S. vessels more than 50 ft (15.2 m) in length 
overall from fishing for PMUS within areas 3 nm from shore (i.e., 
waters regulated by the government of American Samoa) to approximately 
50 nm around the islands of American Samoa. The boundaries of the 
closed areas are defined by latitude and longitude, and are delineated 
as straight lines drawn point to point, except for those segments that 
are bounded by the outer boundary of the EEZ around American Samoa. A 
vessel owner whose longline vessel was registered for use under a 
Federal longline general permit and made at least one landing of PMUS 
in American Samoa on or before November 13, 1997, is exempt from this 
final rule. An exemption may be registered for use with other vessels 
owned by the same person; however, exemptions may 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 longline general permit, and made at least one landing of a PMUS 
prior to November 13, 1997, an exemption will be issued to only one 
person. Exemptions are not transferable between persons.

Comments and Responses

    NMFS received sets of comments from three different commenters. 
These comments generally supported this action. NMFS addresses comments 
that recommended actions not in this final rule below.
    Comment 1: One commenter recommended that the larger domestic 
longline vessels operating in the EEZ around American Samoa be required 
to use vessel monitoring system (VMS) units installed by NMFS to 
facilitate enforcement of the closed areas around American Samoa.
    Response: NMFS agrees that VMS would enhance monitoring and 
enforcement of area closures around American Samoa as demonstrated by 
its application to the longline area closures around the Hawaiian 
Islands. However, due to budgetary constraints, NMFS is unable to 
provide VMS units to all the large longline vessels. NMFS may consider 
requiring industry to purchase VMS units for those vessels that do not 
already have them. However, VMS may not be necessary for an effective 
area closure program with adherence to these new closures and 
cooperation among the fishermen, both small and large fishing vessel 
operators and the local community to avoid conflicts and localized 
depletions of the fisheries.
    Comment 2: One commenter recommended a more extensive 100-nm closed 
area around Rose Atoll, a National Wildlife Refuge. An extended area 
closure would provide a larger buffer zone around the atoll and 
safeguard against potential groundings of fishing vessels.
    Response: NMFS believes the 50-nm nearshore closure provides 
adequate protection for the fauna and flora at Rose Atoll, while 
striking a balance with the needs of large domestic longline fishing 
vessels for access to offshore fishing grounds.
    The final rule is changed from the proposed rule with respect to 
the coordinates specified for the boundaries of the closed areas around 
Swains Island and the remainder of the American Samoa islands (Tutuila 
Island, the Manu'a Islands, and Rose

[[Page 4370]]

Atoll). These coordinates describe generally rectangular shapes 
approximating the radius of 50-nm circles drawn around each island or 
island group. Although this change will not affect the intent of this 
action, i.e, establish 50-nm area closures, it corrects and improves 
the coordinates of the closure area boundaries that were published in 
the proposed rule. Some of those coordinates in the proposed rule were 
determined by utilizing outdated technology and information that 
resulted in area closures substantially greater than those intended by 
the Council. In another situation, the coordinates published for the 
area around Swains Island were based on an earlier Council 
recommendation for a 30-nm closure.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    On March 30, 2001, NMFS issued a FEIS that analyzes the 
environmental impacts of U.S. pelagic fisheries in the western Pacific 
region. This analysis includes the pelagic longline fishery around 
American Samoa. The FEIS was filed with the Environmental Protection 
Agency; a Notice of Availability was published on April 6, 2001 (66 FR 
18243). In November 2000, the Council prepared a background document/
environmental assessment on the prohibition on fishing for PMUS within 
closed areas around the islands of American Samoa. Information from 
this document was used to evaluate and provide the basis for adoption 
of the preferred alternative contained in the subsequent FEIS.
    A FRFA that describes and updates the impact this final rule is 
likely to have on small entities was prepared and is available from 
(see ADDRESSES). A summary of the FRFA follows.
    The need for and objectives of this final rule are stated in the 
SUMMARY and SUPPLEMENTARY INFORMATION sections of this document and are 
not repeated here. No comments on the initial regulatory flexibility 
analysis or the economic effects of this action were received. 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.
    Both large and small longline vessels affected by this final 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. Based 
on information provided in the FRFA, this rule could potentially impact 
an estimated 52 active vessel operators, employing 33 small (equal to 
or less than less than 50 ft) longline vessels and 19 large (greater 
than 50 ft) longline vessels, two or three of which may qualify for 
exemption. It could also potentially impact an additional 22 small 
vessels, and 10 large vessels, which have inactive longline permits. 
Albacore trolling vessel operators are not anticipated to be 
significantly impacted as they have not historically fished in the EEZ 
around American Samoa. Similarly, impacts on tuna purse seine vessel 
operators are expected to be low as they are believed to have made a 
total of only eleven sets in the EEZ around American Samoa over the 
past decade, and will likely continue fishing outside of the closed 
area.
    NMFS considers that this rule provides a balanced approach that 
allows large domestic vessels, primarily longliners, to continue 
fishing within two-thirds of the U.S. exclusive economic zone (EEZ) 
around American Samoa, while maintaining one-third for use by local 
small-scale fishing vessels. The overall direct economic impacts of 
this final rule are not quantifiable, as pelagic fisheries interactions 
are difficult to document and model due to inadequate data, 
insufficient knowledge of the biology and population dynamics of the 
resource, and poor understanding of environmental influences. In 
addition, how various gears fishing in the same time and area compete 
for local fishery resources and the effects on availability of the 
target fish are poorly understood. Although most large vessel fishing 
effort around American Samoa already takes place outside of the closed 
area and thus will be unaffected by this measure, some large vessel 
operators continue to fish within 50 nm of shore. This choice is due to 
several factors, including greater familiarity with those fishing 
grounds. It is estimated that the costs of this measure to the 
operators of these displaced large vessels will average between $1,960 
to $4,900 per vessel. These costs, which are between 1 and 2.5 percent 
of the average annual operating costs of such vessels, depend largely 
on the size of the individual vessel. Once these displaced vessels 
become more familiar with the offshore areas, they may anticipate 
annual increases in vessel gross revenues which will offset the losses 
resulting from this closure. Current cannery prices, along with higher 
longline catch rates in offshore areas (as indicated by logbook data), 
may enable them to recoup, or potentially surpass, the losses resulting 
from this action.
    Four alternatives to this final rule were considered and rejected. 
The first alternative would have closed waters within 50 nm of Tutuila 
Island, the Manu'a Islands, and Rose Atoll, and within 30 nm of Swains 
Island. This alternative was rejected because this approach would have 
provided unequal and insufficient protection for small vessel operators 
who chose to fish around Swains Island, as well as for those that might 
decide to become home ported there. The second alternative would have 
closed waters within 100 nm around all islands of American Samoa and 
was rejected because the potential negative economic impacts on large 
vessels was considered to outweigh the possible benefits to the local 
small-vessel fishing fleet of approximately 30 active vessels fishing 
generally within 50 nm from shore. The third alternative would have 
excluded large U.S. pelagic fishing vessels from waters around American 
Samoa in which the FMP already prohibits longline fishing by foreign 
vessels (an area approximately 20 nm around each island) and was 
rejected because such small closed areas would have provided 
insufficient protection for the local small-vessel fishing fleet. The 
fourth alternative to this rule was no action. This alternative was 
rejected as it would not provide any protection to the small vessel 
fleet.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) states that for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides''. The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rule making process, a small entity compliance guide 
(compliance guide) was prepared. Copies of this final rule and the 
compliance guide will be sent to all holders of permits issued for the 
western Pacific pelagic fisheries. The compliance guide will be 
available at the following web site http://swr.nmfs.noaa.gov/piao/guides.htm. Copies can also be obtained from the PIAO (see ADDRESSES).
    On October 1, 2001, NMFS completed an informal Endangered Species 
Act section 7 consultation on the final rule. The informal consultation 
concluded

[[Page 4371]]

that this action is not likely to adversely affect listed species or 
critical habitat considered in the March 29, 2001, biological opinion 
(BiOp) issued by NMFS for authorization of pelagic fisheries under the 
FMP. The informal consultation stated that there is no information that 
would indicate that the final rule will alter the potential for impact 
to listed species or critical habitat from the Federal action as 
analyzed in the BiOp.

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.

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

    Dated: January 24, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 660 is 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 length overall.
    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 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 (AS-1). 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 
enclosed by straight lines connecting the following coordinates:

------------------------------------------------------------------------
                        Point                          S. lat.  W. long.
------------------------------------------------------------------------
AS-1-A                                                 13 deg.  167 deg.
                                                           30'       25'
AS-1-B                                                 15 deg.  167 deg.
                                                           13'       25'
------------------------------------------------------------------------


and from Point AS-1-A westward along the latitude 13 deg. 30' S. until 
intersecting the U.S. EEZ boundary with Samoa, and from Point AS-1-B 
westward along the latitude 15 deg. 13' S. until intersecting the U.S. 
EEZ boundary with Samoa.(c) Swains Island (AS-2). The large vessel 
prohibited area around Swains Island consists of the waters of the EEZ 
around American Samoa enclosed by straight lines connecting the 
following coordinates:

------------------------------------------------------------------------
                        Point                          S. lat.  W. long.
------------------------------------------------------------------------
AS-2-A                                                 11 deg.  171 deg.
                                                           48'       50'
AS-2-B                                                 11 deg.  170 deg.
                                                           48'       20'
------------------------------------------------------------------------


and from Point AS-2-A northward along the longitude 171 deg. 50' W. 
until intersecting the U.S. EEZ boundary with Tokelau, and from Point 
AS-2-B northward along the longitude 170 deg. 20' W. until intersecting 
the U.S. EEZ boundary with Tokelau.

    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. The caption to Figure 2 to part 660 is revised to read as 
follows:

[[Page 4372]]

Figure 2 to Part 660 - Length of Fishing Vessel
[GRAPHIC] [TIFF OMITTED] TR30JA02.042

[FR Doc. 02-2261 Filed 1-29-02; 8:45 am]
BILLING CODE 3510-22-S