[Federal Register Volume 70, Number 99 (Tuesday, May 24, 2005)]
[Rules and Regulations]
[Pages 29646-29657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10351]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 040628196-5130-02; I.D. 061704A]
RIN 0648-AQ92


Fisheries Off West Coast States and in the Western Pacific; 
Western Pacific Pelagic Fisheries; American Samoa Longline Limited 
Entry Program

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 11 to the 
Fishery Management Plan for Pelagic Fisheries of the Western Pacific 
Region (Amendment 11), which establish a limited entry system for 
pelagic longline vessels fishing in waters of the U.S. exclusive 
economic zone (EEZ) around American Samoa. The action is necessary to 
effectively manage the pelagics fisheries around American Samoa. This 
final rule is intended to establish management measures that would 
stabilize effort in the fishery to avoid a ``boom and bust'' cycle of 
fishery development that could disrupt community participation and 
limit opportunity for substantial participation in the fishery by 
indigenous islanders.

DATES: Effective August 1, 2005, except Sec. Sec.  660.21(c), 
660.22(e),(f),and (g), which are effective December 1, 2005.

ADDRESSES: CD or paper copies of Amendment 11, including an 
Environmental Assessment (EA), regulatory impact review (RIR) and final 
regulatory flexibility analysis (FRFA) may be obtained from Kitty M. 
Simonds, Executive Director, Western Pacific Fishery Management Council 
(Council), 1164 Bishop Street, Suite 1400, Honolulu, HI 96813. These 
documents are also available at the following website: http://www.wpcouncil.org. Comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this final rule may be submitted in writing to William L. Robinson, 
Regional Administrator, Pacific Islands Region (PIR), NMFS, 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814, and David Rostker, 
OMB, by email at [email protected], or facsimile (Fax) 202-
395-7285.

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

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the internet 
at the website of the Office of Federal Register: http://www.access.gpo.gov/sudocs/aces/aces140.html.

Background

    On July 22, 2004, NMFS published a proposed rule (69 FR 43389) that 
would establish a limited access permit program for the pelagic 
longline fishery based in American Samoa under Amendment 11. Amendment 
11 was approved by the Secretary of Commerce on September 23, 2004. The 
final rule is intended to: (1) Avoid a ``boom and bust'' cycle of 
fishery development that could disrupt community participation in the 
American Samoa small-scale pelagic fishery; (2) establish a framework 
to adjust regulations for the American Samoa-based longline fishery; 
(3) reduce the potential for fishing gear conflict in waters of the EEZ 
around American Samoa; (4) maintain local catch rates of albacore tuna 
at economically viable levels; and (5) provide an opportunity for 
substantial participation by indigenous islanders in the large vessel 
sector of the fishery. This final rule applies specifically to the 
permitted owners and operators of vessels that fish for pelagic 
management species under Hawaii limited access longline permits or 
western Pacific general longline permits within the EEZ, as well as the 
high seas, around American Samoa, and generally to permitted owners and 
operators of vessels fishing for pelagic management species in the 
western Pacific region (the Northern Mariana Islands; Guam; Hawaii; 
Midway, Johnston, and Palmyra Atolls, Kingman Reef, and Wake, Jarvis, 
Baker, and Howland Islands).
    The following is a summary of key measures in this final rule 
implementing Amendment 11. Initial American Samoa longline limited 
access permits will be issued to qualifying individuals who owned 
vessels that were used to legally harvest Pacific pelagic management 
unit species with longline gear in the EEZ around American Samoa (with 
those fish landed in American Samoa) prior to March 22, 2002. An 
individual who had provided written notice to NMFS or the Council of 
intent to participate in the fishery prior to June 28, 2002, would also 
qualify for an initial limited access permit. NMFS will publish a 
notice in the Federal Register to solicit

[[Page 29647]]

participation in the program and establish a mailing list, as one of 
the means, to notify prospective applicants of the availability of 
permits. American Samoa limited access longline permits are established 
for four categories based on vessel length: (a) Class A--less than or 
equal to 40 ft (12.2 m); (b) Class B--over 40 ft (12.2 m) to 50 ft 
(15.2 m) inclusive; (c) Class C--over 50 ft (15.2 m) to 70 ft (21.3 m) 
inclusive; and (d) Class D--over 70 ft (21.3 m). The rule sets a 
schedule of 120 days for a permittee to register his or her vessel for 
use with a American Samoa longline limited access permit. The rule also 
allows for 26 ``upgrade permits'' to be made available, following the 
issuance of initial limited access permits, for the exclusive use of 
permit holders in the smallest vessel size class (less than or equal to 
40 ft (12.2 m)), with priority based on documented historical 
participation in the fishery. Those receiving ``upgrade permits'' are 
not allowed to transfer their new permits for 3 years. All other 
permits are transferable to individuals who can document (regardless of 
date) that they worked on a vessel that caught Pacific pelagic 
management species on longline gear in the EEZ around American Samoa, 
with those fish landed in American Samoa. This rule also: prohibits any 
individual from owning more than 10 percent of the maximum permits 
allowed (in all vessel size classes combined), with any fractional 
interest in a permit counted as a whole permit; establishes an 
administrative fee for the issuance, renewal, or transfer of any 
permit; requires documented landings of at least 1,000 lb (455 kg) of 
Pacific pelagic management unit species during every 3 consecutive 
calendar years for vessels in the smaller vessel size classes (Class A 
and B), and at least 5,000 lb (2,273 kg) every 3 consecutive calendar 
years for vessels in the two larger vessel size classes (Class C and D) 
in order to renew permits; requires all vessels permitted under the 
limited access system that are 50 ft (15.2 m) in length or greater to 
carry active vessel monitoring systems (VMS), if requested by NMFS; 
requires vessels greater than 40 ft (12.2 m) in length to carry 
observers, if requested by NMFS; and requires operators of permitted 
vessels greater than 40 ft (12.2 m) in length to notify NMFS no less 
than 72 hours before embarking on a longline fishing trip.
    Additional background information on this final rule may be found 
in the preamble to the proposed rule (69 FR 43389, July 22, 2004) and 
is not repeated here.

Comments and Responses

    NMFS received two sets of comments on the proposed rule. NMFS 
responds to these comments as follows:
    Comment 1: Local fishermen should be allowed to have most of the 
fish catch (but also that longline gear should be banned immediately), 
not ``profiteers coming with their big money, big boats'' from other 
areas.
    Response: Two objectives of Amendment 11 relate to continued 
participation of American Samoan communities and opportunities for 
sustained future participation by indigenous American Samoans in the 
domestic longline fishery. Several provisions of the American Samoa 
limited access permit program help to achieve these objectives, 
including the eligibility requirements for initial permits (requiring 
historical participation in the fishery), restrictions on permit 
transferability, and permit upgrade provisions. The final regulations 
implementing Amendment 11 therefore ensure that local, indigenous 
fishermen and their communities are afforded opportunities to 
participate in the American Samoa pelagic longline fishery. No changes 
have been made to the rule as a result of this comment.
    Comment 2: The control date for eligibility for initial limited 
access permits should have been in 2000, rather than 2002.
    Response: In recommending control date(s) for initial permit 
eligibility, the Council attempted to balance the need to place 
effective limits on fishing effort and to minimize adverse impacts on 
current fishery participants. Although a control date in 2000 would 
have resulted in a smaller number of available permits, NMFS finds that 
the 2002 control dates (March 22 and June 28, 2002) will provide an 
adequately conservative limit. No changes have been made to the rule as 
a result of this comment.
    Comment 3: No vessel upgrade permits should be provided.
    Response: The purpose of providing permit upgrades is, in part, to 
help achieve the objectives of ensuring opportunities for substantial 
future participation by indigenous American Samoans, maintaining 
sustained community participation, and minimizing adverse impacts on 
communities. Although the permit upgrades will allow fishing effort of 
the longline limited access fleet to increase from its initial level, 
the magnitude of that increase will be restricted by the limits on the 
number of available upgrade permits (26) and the period within which 
they must be used. NMFS finds that the potential growth in the fleet's 
fishing effort is not excessive and that it is appropriate given 
economic, social, and cultural considerations. No changes have been 
made to the rule as a result of this comment.
    Comment 4: No individual should own more than two percent of the 
boats.
    Response: The rule would limit the number of permits held by any 
single permit holder to 10 percent of the total. NMFS finds that this 
limit is appropriate for the purpose of preventing excessive 
concentration of permit ownership. No changes have been made to the 
rule as a result of this comment.
    Comment 5: The fee for a permit should be $500 initially, and 
possibly raised later.
    Response: The fee amount for limited access permits under this rule 
is in accord with the Magnuson-Stevens Fishery Conservation Management 
Act (Magnuson-Stevens Act), which does not allow NMFS to collect 
permit-related fees in excess of the costs for administering the 
permits program. Permit application fees for fisheries in the western 
Pacific region are commensurate with the administrative costs of 
processing permit applications (which are currently estimated to be 
less than $100 per year). The fee amount for processing an American 
Samoa longline limited access permit will be determined in accordance 
with NOAA's Financial Handbook, as is the case for fees established for 
other western Pacific fishing permits. No changes have been made to the 
rule as a result of this comment.
    Comment 6: In Amendment 11, ``economics should be downgraded in 
these deliberations and proposals and environmental considerations 
should be paramount.
    Response: The Council and NMFS considered both environmental and 
economic factors in the development of Amendment 11 and its 
implementing regulations, as required by the Magnuson-Stevens Act, the 
Regulatory Flexibility Act, Executive Order 12866, and the National 
Environmental Policy Act. NMFS believes that the final rule is based on 
a thorough consideration of all relevant factors and that it would 
achieve both the environmental and economic objectives of Amendment 11. 
No changes have been made to the rule as a result of this comment.
    Comment 7: It is time to start assessing heavy fines on those who 
violate Federal fishery regulations; and fees for violations should 
start at a minimum of $5,000.

[[Page 29648]]

    Response: This rule does not establish fine levels. That said, NMFS 
recognizes the need to ensure compliance with fishery regulations 
established under the Magnuson-Stevens Act. Procedures for assessing 
civil penalties for those who violate federal fishery regulations, 
including those governing the pelagic longline fishery in American 
Samoa, are found in NOAA's Civil Procedure regulations (15 CFR part 
904). Maximum civil penalty amounts are established by statute. The 
penalty in any particular case is assessed after consulting NOAA's 
civil administrative penalty schedule. Consideration is given to many 
factors including, but not limited to, a fisherman's ability to pay the 
fine, the severity of the violation based on its impact on the 
resource, and whether or not the fisherman has prior violations. While 
enforcement priorities exist, and may vary by region, NOAA is committed 
to a comprehensive program of enforcing all of the statutes it 
administers. Funding for enforcement of these statutes, and any of the 
implementing regulations, is by statutory appropriation. No changes 
have been made to the rule as a result of these comments.
    Comment 8: Consistent with the Pew Foundation Report, overfishing 
should be stopped; fishing quotas are set too high and should be cut by 
50 percent initially (and 10 percent each year thereafter); marine 
sanctuaries should be established ``where no fish can be touched by 
human hands.''
    Response: NMFS is cognizant of the recommendations in the Pew 
Foundation Report in the context of the broad issues raised by the 
commenter, including overfishing. Overfishing of target management unit 
species is not occurring in the American Samoa-based pelagic longline 
fishery. NMFS is confident that Amendment 11 will help prevent 
overfishing in the fishery or the need for quotas.
    Concerning marine sanctuaries, NOAA manages a National Marine 
Sanctuary in Fagatele Bay in American Samoa to protect and conserve 
marine resources, including fish. Establishment of marine sanctuaries 
by NOAA is undertaken pursuant to the National Marine Sanctuaries Act, 
not the Magnuson-Stevens Act under which these fishing regulations are 
implemented. No changes have been made to the rule as a result of these 
comments.

Changes to the Proposed Rule

    In Sec.  660.13, paragraphs (c)(1),(2) and (d) are revised to 
clarify certain requirements pertaining to permit application and 
change in application information, respectively. Paragraph (c)(1) is 
revised to clearly indicate that the Pacific Islands Regional Office is 
the source of Western Pacific permit application forms and the 
receiving office for permit applications. Paragraph (c)(2) is revised 
to clearly indicate that a ``deficiency'' in permit application, filed 
with NMFS, means an application that is incomplete, including an 
application that is improperly completed, resulting in NMFS notifying 
the permit applicant of the deficiency. Paragraph (d) specifies when 
all western Pacific fishing permit applicants and permit holders, must 
notify NMFS if there are any changes to the information in their permit 
application or vessel documentation previously provided to NMFS, and 
removes the previous deadline for American Samoa longline limited 
access permit applicants to notify NMFS within 30 days if there is a 
complete change in ownership. The 30 day deadline applies to changes of 
information after permits have been issued, not during the initial 
application process.
    In Sec.  660.21, paragraph (n)(1), clarification is provided on the 
criteria to be used in reviewing permit appeals concerning longline 
limited access permits, i.e., under subpart C of 50 CFR 660. The new 
language also claries that the Regional Administrator ``will'' review 
relevant portions of the Pelagics FMP (to the extent such review would 
elucidate the criteria established for permit qualifications and 
renewals) in rendering a decision.
    In Sec.  660.23, paragraph (c), the last sentence was revised to be 
consistent with the statutory and regulatory citations from the end of 
Sec.  660.13(d).
    In Sec.  660.36, paragraph (b)(1), governing documented 
participation in the American Samoa longline limited access fishery, 
flexibility is provided in the kinds of documentation that may be 
accepted by NMFS in determining qualification for an American Samoa 
longline limited access permit. In paragraph (b)(1)(ii), a provision is 
inserted so that a permit applicant may request NMFS to obtain copies 
of official government records (e.g., creel survey record or logbook) 
from its files or from the appropriate agency of the Government of 
American Samoa demonstrating evidence of the applicant's work on a 
fishing trip. NMFS will undertake the requested action if the permit 
applicant does not possess copies of the government records. In 
paragraph (f), required documentation of vessel ownership and/or 
participation in the fishery, as part of a complete permit application, 
is clarified. Paragraphs (f)(3) and (g)(3) establish that the Assistant 
Regional Administrator for Sustainable Fisheries, rather than the 
Regional Administrator, shall decide the eligibility for initial and 
additional permit issuance inasmuch as the Regional Administrator 
serves as the appeals officer involving disputes and challenges 
determination of eligibility for issuance of American Samoa longline 
limited access permits. Paragraph (j)(2) is removed because the 
requirement for annual protected species workshop certification by 
vessel owners and operators is included in a separate regulatory 
amendment that would revise 50 CFR 660.34 (Protected species workshops) 
proposed by the Council on additional sea turtle mitigation measures 
under the Pelagics FMP for western Pacific pelagic fisheries, which 
include the American Samoa-based pelagic longline limited access 
fishery.

Classification

    The Administrator, Pacific Islands Region, NMFS, determined that 
Amendment 11 is necessary for the conservation and management of the 
pelagic fisheries of the western Pacific region and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The potential economic impacts of this final rule on small entities 
were identified in an Initial Regulatory Flexibility Analysis (IRFA) 
and summarized in a Federal Register notice published July 22, 2004 (69 
FR 43789). A FRFA was subsequently prepared. A description of the need 
for the rule and its objectives is contained at the beginning of this 
section in the preamble and in the SUMMARY section of the preamble. No 
public comment was made specifically on the IRFA, but two sets of 
comments about the economic effects of the rule were received. Those 
comments, NMFS' responses to those comments, and a statement of the 
changes made as a result of the comments are presented above. A summary 
of the remaining parts of the FRFA follows.
    Entities to which the final rule will apply include all prospective 
participants in the pelagic longline fishery in the EEZ around American 
Samoa, which includes past, present, and additional prospective future 
participants. Based on fishing information and/or vessel ownership 
records available from the Government of American Samoa, NMFS 
anticipates that 138 entities that owned active longline vessels prior 
to the control date

[[Page 29649]]

of March 21, 2002, will be eligible for limited access permits. Of 
those 138 entities, NMFS believes that approximately 75 will actually 
apply for and receive initial permits. Of the 138 vessels associated 
with these entities prior to March 21, 2002, it is believed that 93 
vessels were less than or equal to 40 ft (12.2 m) in length, 9 were 
greater than 40 ft (12.2 m) ranging up to 50 ft (15.2 m) in length 
inclusive, 15 were greater than 50 ft (15.2 m) ranging up to 70 ft 
(21.3 m) in length inclusive, and 21 were greater than 70 ft (21.3 m) 
in length. The current average capital investment in vessels less than 
40 ft (12.2 m) is estimated to be between $25,000 and $125,000, with 
annual landings of approximately 50,000 lbs (22,680 kg) and annual ex-
vessel revenues estimated to average $65,000. These are typically 
catamaran style vessels that average 50-100 one to two day fishing 
trips annually. These vessels are permanently based in American Samoa 
and may have been used to pelagic handline or troll in the past. 
Longline vessels greater than 40 ft (12.2 m) are typically monohull 
vessels with a current average capital investment of up to $400,000. 
These vessels take 17 to 28 fishing trips annually, with trips 
extending from 4 to 25 days. Annual landings for these vessels range 
from 200,000 lb to 600,000 lb (90,909.1 kg - 272,727.3 kg) per vessel, 
with an ex-vessel revenue of $220,000 to $660,000. These vessels are 
currently based in American Samoa, and have also been used in other 
Pacific pelagic longline or jig fisheries. Based on their ex-vessel 
revenues, all of these entities are considered to be small businesses 
with annual revenues of less than $3.5 million each.
    This final rule requires that vessels greater than 40 feet (12.2 m) 
in length carry a NMFS-trained observer if directed by NMFS. Potential 
costs of this requirement include the reduced accommodations available 
for crew and, depending on the size of the vessel, the cost of reduced 
fishing efficiency as a result of a reduction in crew size and crowding 
on board the vessel.
    Under the final rule, the prospective fishery participants will be 
required to submit applications to NMFS Pacific Islands Regional Office 
for permits to participate in the American Samoa-based limited access 
longline fishery. Documentation of vessel ownership and/or 
participation in the fishery will be required with permit applications 
for post-initial permits (i.e., permits applied for after the initial 
issuance of permits upon establishment of the limited access permit 
program), upgrade permits (i.e., the limited number of transfers to 
larger vessel size classes that will be available to permit holders 
starting in the smallest size class), and permit transfers. As such, 
this final rule contains several collection-of-information requirements 
subject to Paperwork Reduction Act (PRA). These requirements have been 
approved by OMB. The approved collection-of-information burden to 
fishermen is estimated at 60 hours annually or a total of 181 hours: 
112 hours for initial permits, 20 hours for appeals, 49 hours for 
permit upgrades and transfers for a 3-year period during which longline 
limited access permits are valid (until 2007 or 2008). Clearance for 
collection-of-information concerning permit renewals will be addressed 
at a later date, prior to expiration of the current collection-of-
information (OMB No. 0648-0490) on December 31, 2006.
    Besides the collection-of-information requirement associated with 
the limited access permit program, this final rule requires operators 
of large (greater than 40 ft (12.2 m) in length) fishing vessels 
registered with American Samoa longline limited access permits to 
notify NMFS at least 72 hours prior to leaving port on a longline 
fishing trip targeting Pacific pelagic management unit species in the 
EEZ around American Samoa. Notification is necessary for NMFS to 
determine whether or not observers should be placed on these large 
vessels. It is estimated that the time required by a vessel operator to 
notify NMFS prior to each trip is 3 minutes per telephone call. The 
collection-of-information burden to fishermen is estimated at 68 hours 
annually, an addition to the currently approved collection under OMB 
No. 0648-0214.
    This final rule requires vessels greater than 50 ft (15.2 m) in 
length and registered with American Samoa longline limited access 
permits to carry vessel monitoring system (VMS) units, if directed to 
do so by NMFS. While the vessel is at sea, NMFS will receive from the 
VMS unit information on the position of the vessel. NMFS uses the 
reports to monitor vessel location and activities while enforcing the 
established large-vessel pelagic fishing area closure around American 
Samoa. NMFS intends to pay for the installation and maintenance of the 
VMS units. It is estimated that the annual burden to fishermen of this 
new collection of information is 167 hours. This includes the time to 
observe the installation and maintenance of the VMS units. Since the 
VMS units transmit reports automatically, there is no requirement for 
the fishermen themselves to report to NMFS on the location of their 
vessels while at sea. This collection is approved under OMB No. 0648-
0519.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    NMFS considered a range of alternatives to this final rule, some of 
which would have smaller economic impacts on small entities than the 
rule. Ten alternatives, including the preferred alternative, were 
considered. The alternatives included various combinations of measures 
that addressed: (1) how longline fishing effort in the EEZ around 
American Samoa would be limited (including no-action, establishing a 
limited access program, and establishing a per-trip landing limit of 
5,000 lb (2,688 kg)); (2) whether operators of longline vessels in the 
EEZ around American Samoa would be required to land all captured 
pelagic management unit species (PMUS) in order to minimize bycatch; 
(3) whether longline vessels greater than 50 ft (15.2 m) in length 
would be required to carry and operate a transmitter as part of a 
vessel monitoring system (VMS); and (4) whether longline vessels 
greater than 40 ft (12.2 m) in length would be required to carry a 
vessel observer if directed by NMFS.
    For those alternatives that would establish a limited access 
program, the combinations of measures further addressed: (a) What the 
limit on permits would be (ranging from 106 to 215 total permits, as 
well as one alternative in which the initial number of available 
permits would be equal to the number of individuals with historical 
experience in the fishery, but, after allowing the fleet size to 
decrease through attrition, the number of available permits would 
ultimately be limited to the number of permits predicted to result in 
an annual fishing effort level of no more than 7.15 million hooks in 
the nearshore area (within 50 nautical miles (nm) of shore) and 14.3 
million hooks in the offshore area (beyond 50 nm from shore); (b) how 
the limited number of permits would be allocated among vessel size 
classes (with various allocations among four or five vessel size 
classes, with zero permits available for vessels greater than 100 ft 
(30.5 m)in length in all but two alternatives); (c) how the available 
permits would be initially allocated (including allowing initial entry 
only to individuals that held a longline permit and landed PMUS in 
American Samoa prior to March 21, 2002, allowing initial

[[Page 29650]]

entry only to individuals that owned a longline vessel on March 21, 
2002, that was used to harvest PMUS from the EEZ around American Samoa 
and land them in American Samoa prior to March 21, 2002, and allowing 
entry only to individuals that owned a longline vessel on or before 
March 21, 2002, that was used to harvest PMUS from the EEZ around 
American Samoa and land them in American Samoa prior to March 21, 2002; 
(d) how many permits would be reserved for participants indigenous to 
American Samoa (ranging from zero to 100 percent of the permits for 
certain vessel size classes); (e) how many permits would be reserved 
for participants initially using vessels in the smallest size class 
(ranging from zero to 26 ``upgrade'' permits that could be used by 
holders of permits for the smallest size class to upgrade to permits 
for larger size classes); (f) how available permits would be allocated 
in the future (including giving priority according to the date of 
application, giving priority according to the amount of historical 
pelagic fishing based out of American Samoa, giving first priority to 
permit holders wanting to upgrade to a larger vessel size class then 
according to the amount of historical pelagic fishing based out of 
American Samoa, giving priority first according to the vessel size 
class (with smaller classes given higher priority) than according to 
the earliest date of a longline landing in American Samoa); (g) whether 
permits could be re-registered to replacement vessels (including 
allowing re-registrations to vessels of any size class provided that a 
permit in that size class is available and allowing re-registrations 
only to vessels in the same size class); (h) whether maintenance of a 
permit would be contingent on continued participation in the fishery 
that is, whether there would be a ``use-it-or-lose-it'' requirement (in 
all cases, yes, ranging from having to make a landing at least once 
every year to at least once every three years, with various minimum 
qualifying landing tonnages according to vessel size class); and (I) 
whether permits would be transferable among holders (including not 
allowing transfers, allowing transfers only by holders of permits for 
the smallest vessel size class and only to immediate family or 
community groups, allowing transfers only by indigenous holders of 
permits for smallest size class and only to immediate family or 
community groups, and in the case of ``upgrade'' permits, allowing 
transfers only after three years).
    NMFS' reasons for rejecting the significant alternatives are as 
follows. The alternative with a per-trip landing limit of 5,000 lb 
(2,688 kg) was rejected because it would likely result in poorer 
economic performance than a limited access program and it would 
encourage high-grading and bycatch. The alternatives that would require 
that all captured PMUS be landed were rejected because they would be 
economically inefficient. The alternatives that would not have required 
that longline vessels greater than 50 ft (15.2 m) in length carry and 
operate VMS transmitters or not require that longline vessels greater 
than 40 ft (12.2 m) in length carry a vessel observer if directed by 
NMFS were rejected because they would not ensure an adequately high 
level of compliance with certain fishery regulations and not ensure 
that adequate information about fishing activities is gathered. The 
alternatives with larger permit limits than the preferred alternative 
(including the no-action alternative) were rejected because they would 
be unlikely to sufficiently reduce the potential for gear conflict and 
catch competition. The alternatives with smaller permit limits than the 
preferred alternative were rejected because they were determined to be 
unfair to some prospective participants and socially unacceptable. The 
alternatives with fewer permits allocated to the smallest vessel size 
class than the preferred alternative, as well as those without 
provisions for permit upgrades from the smallest to the larger vessel 
size classes, those with a one-year rather than three-year use-it-or-
lose-it requirement, and those that would not have allowed permit 
transfers, were rejected because they would be unlikely to maintain 
sufficiently high levels of participation by American Samoa residents 
and individuals who have traditionally operated smaller vessels.
    Copies of the FRFA are available from the Council (see ADDRESSES).
    To the extent practicable, it has been determined that there are no 
Federal rules that may duplicate, overlap, or conflict with this rule.
    A formal section 7 consultation under the Endangered Species Act 
was undertaken for Amendment 11. In a biological opinion issued by NMFS 
on February 23, 2004, it was determined that fishing activities 
conducted under Amendment 11 and its implementing regulations are not 
likely to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS or result in the 
destruction or adverse modification of critical habitat.

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: May 19, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

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

0
1. The authority citation for part 660 continues to read as follows:

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

0
2. In Sec.  660.12, the definitions of ``Fisheries Management Division 
(FMD)'', ``Longline general permit'', and ``Pacific Islands Area 
Office'' are removed, the definition for ``Special Agent-In-Charge 
(SAC)'' is revised, and new definitions for ``American Samoa longline 
limited access permit'', ``American Samoa pelagics mailing list'', 
``Freeboard'', ``Hawaiian Archipelago'', ``Pacific Islands Regional 
Office (PIRO)'', ``Pacific Remote Island Areas (PRIA) pelagic troll and 
handline fishing permit'', ``Western Pacific Fishery Management Area'' 
and ``Western Pacific general longline permit'' are added in 
alphabetical order to read as follows:


Sec.  660.12  Definitions.

* * * * *
    American Samoa longline limited access permit means the permit 
required by Sec.  660.21 to use a vessel shoreward of the outer 
boundary of the EEZ around American Samoa to fish for Pacific pelagic 
management unit species using longline gear or to land or transship 
Pacific pelagic management unit species that were caught in the EEZ 
around American Samoa using longline gear.
    American Samoa pelagics mailing list means the list maintained by 
the Pacific Islands Regional Office of names and mailing addresses of 
parties interested in receiving notices of availability for American 
Samoa longline limited access permits.
* * * * *
    Freeboard means the straight-line vertical distance between a 
vessel's working deck and the sea surface. If the vessel does not have 
gunwale door or stern door that exposes the working deck, freeboard 
means the straight-line

[[Page 29651]]

vertical distance between the top of a vessel's railing and the sea 
surface.
* * * * *
    Hawaiian Archipelago means the Main and Northwestern Hawaiian 
Islands, including Midway Atoll.
* * * * *
    Pacific Islands Regional Office (PIRO) means the headquarters of 
the Pacific Islands Region, NMFS, located at 1601 Kapiolani Blvd., 
Suite 1110, Honolulu, Hawaii 96814; telephone number (808) 973-2937.
* * * * *
    Pacific Remote Island Areas (PRIA) pelagic troll and handline 
fishing permit means the permit required by Sec.  660.21 to use a 
vessel shoreward of the outer boundary of the EEZ around the PRIA to 
fish for Pacific pelagic management unit species using pelagic handline 
or troll fishing methods.
* * * * *
    Special Agent-In-Charge (SAC) means the Special-Agent-In-Charge, 
NMFS, Pacific Islands Enforcement Division, or a designee of the SAC, 
located at 300 Ala Moana Blvd., Suite 7-118, Honolulu, Hawaii, 96850; 
telephone number (808) 541-2727.
* * * * *
    Western Pacific Fishery Management Area means those waters 
shoreward of the outer boundary of the EEZ around American Samoa, Guam, 
Hawaii, the Northern Mariana Islands, Midway, Johnston and Palmyra 
Atolls, Kingman Reef, and Wake, Jarvis, Baker, and Howland Islands.
    Western Pacific general longline permit means the permit authorized 
under Sec.  660.21 to use a vessel shoreward of the outer boundary of 
the EEZ around Guam, the Northern Mariana Islands, Johnston or Palmyra 
Atolls, Kingman Reef, or Wake, Jarvis, Baker or Howland Islands to fish 
for Pacific pelagic management unit species using longline gear or to 
land or to transship Pacific pelagic management unit species that were 
caught using longline gear.

0
3. In Sec.  660.13, paragraphs (c), (d), and (e), and the first and 
last sentences of paragraph (f)(2) are revised to read as follows:


Sec.  660.13  Permits and fees.

* * * * *
    (c) Application. (1) A Western Pacific Federal Fisheries Permit 
Application Form may be obtained from the NMFS PIRO to apply for a 
permit or permits to operate in any of the fisheries regulated under 
subparts C, D, E, F, and J of this part. The completed application must 
be submitted to PIRO. In no case shall PIRO accept an application that 
is not on the Western Pacific Federal Fisheries Application Form.
    (2) A minimum of 15 days after the day PIRO receives a complete 
application should be allowed for processing a permit application for 
fisheries under subparts C, D, E, and F of this part. A minimum of 60 
days after the day PIRO receives a complete application should be 
allowed for processing a permit application for fisheries under subpart 
J of this part. If an incomplete or improperly completed application is 
filed, the applicant will be sent a letter of notice of deficiency. If 
the applicant fails to correct the deficiency within 30 days following 
the date of the letter of notification of deficiency, the application 
will be considered abandoned.
    (d) Change in application information. Any change in the permit 
application information or vessel documentation, submitted under 
paragraph (c) of this section, must be reported to PIRO in writing 
within 15 days of the change to avoid a delay in processing the permit 
application. A minimum of 10 days from the day the information is 
received by PIRO should be given for PIRO to record any change in 
information from the permit application submitted under paragraph (c) 
of this section. Failure to report such changes may result in a delay 
in processing an application, permit holders failing to receive 
important notifications, or sanctions pursuant to the Magnuson-Stevens 
Act at 16 U.S.C. Sec.  1858(g) or 15 CFR part 904, subpart D.
    (e) Issuance. After receiving a complete application, the Regional 
Administrator will issue a permit to an applicant who is eligible under 
Sec. Sec.  660.21, 660.36, 660.41, 660.61, 660.601, or 660.8, or 
660.602 as appropriate.
    (f) Fees.* * *
    (2) PIRO will charge a fee for each application for a Hawaii 
longline limited access permit, Mau Zone limited access permit, coral 
reef ecosystem special permit, or a American Samoa longline limited 
access permit (including permit transfers and renewals). * * * Failure 
to pay the fee will preclude the issuance, transfer or renewal of a 
Hawaii longline limited access permit, Mau Zone limited access permit, 
coral reef ecosystem special permit, or an American Samoa longline 
limited access permit.

0
4. Section 660.21 is revised to read as follows:


Sec.  660.21  Permits.

    (a) A vessel of the United States must be registered for use with a 
valid permit under the High Seas Fishing Compliance Act if that vessel 
is used to fish on the high seas, as required under Sec.  300.15 of 
this title.
    (b) A vessel of the United States must be registered for use under 
a valid Hawaii longline limited access permit if that vessel is used:
    (1) To fish for Pacific pelagic management unit species using 
longline gear in the EEZ around the Hawaiian Archipelago; or
    (2) To land or transship, shoreward of the outer boundary of the 
EEZ around the Hawaiian Archipelago, Pacific pelagic management unit 
species that were harvested using longline gear.
    (c) A vessel of the United States must be registered for use under 
a valid American Samoa longline limited access permit, in accordance 
with Sec.  660.36, if that vessel is used:
    (1) To fish for Pacific pelagic management unit species using 
longline gear in the EEZ around American Samoa; or
    (2) To land shoreward of the outer boundary of the EEZ around 
American Samoa Pacific pelagic management unit species that were 
harvested using longline gear in the EEZ around American Samoa; or
    (3) To transship shoreward of the outer boundary of the EEZ around 
American Samoa Pacific pelagic management unit species that were 
harvested using longline gear in the EEZ around American Samoa or on 
the high seas.
    (d) A vessel of the United States must be registered for use under 
a valid Western Pacific general longline permit, American Samoa 
longline limited access permit, or Hawaii longline limited access 
permit if that vessel is used:
    (1) To fish for Pacific pelagic management unit species using 
longline gear in the EEZ around Guam, the Northern Mariana Islands, or 
the Pacific remote island areas (with the exception of Midway Atoll); 
or
    (2) To land or transship shoreward of the outer boundary of the EEZ 
around Guam, the Northern Mariana Islands, or the Pacific remote island 
areas (with the exception of Midway Atoll), Pacific pelagic management 
unit species that were harvested using longline gear.
    (e) A receiving vessel of the United States must be registered for 
use with a valid receiving vessel permit if that vessel is used to land 
or transship, within the Western Pacific Fishery Management Area, 
Pacific pelagic management unit species that were harvested using 
longline gear.
    (f) A vessel of the United States must be registered for use with a 
valid PRIA pelagic troll and handline fishing permit if that vessel is 
used to fish for Pacific

[[Page 29652]]

pelagic management unit species using pelagic handline or trolling 
fishing methods in the EEZ around the PRIA.
    (g) Any required permit must be valid and on board the vessel and 
available for inspection by an authorized agent, except that, if the 
permit was issued (or registered to the vessel) during the fishing trip 
in question, this requirement applies only after the start of any 
subsequent fishing trip.
    (h) 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.
    (i) An application for a permit required under this section will be 
submitted to PIRO as described in Sec.  660.13.
    (j) General requirements governing application information, 
issuance, fees, expiration, replacement, transfer, alteration, display, 
and sanctions for permits issued under this section, as applicable, are 
contained in Sec.  660.13.
    (k) A Hawaii longline limited access permit may be transferred as 
follows:
    (1) The owner of a Hawaii longline limited access 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) [Reserved]
    (l) A Hawaii longline limited access permit will not be registered 
for use with a vessel that has a LOA greater than 101 ft (30.8 m).
    (m) 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 Hawaii longline limited access permit.
    (n) Permit appeals. 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 Administrator the granting, denial, conditioning, suspension, 
or transfer of a permit or requested permit under this section. To be 
considered by the Regional Administrator, 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 Regional 
Administrator. The appellant may request an informal hearing on the 
appeal.
    (1) Upon receipt of an appeal authorized by this section, the 
Regional Administrator may request additional information. Upon receipt 
of sufficient information, the Regional Administrator will decide the 
appeal in accordance with the criteria set out in this part for 
qualifying for, or renewing, limited access permits. In making such 
decision, the Administrator will review relevant portions of the 
Fishery Management Plan for the Pelagic Fisheries of the Western 
Pacific Region, to the extent such review would clarify the criteria in 
this part. Such decision will be 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 (n)(3) of this section; and such other considerations as 
deemed appropriate. The Regional Administrator 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.
    (2) If a hearing is requested, or if the Regional Administrator 
determines that one is appropriate, the Regional Administrator 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 Administrator.
    (3) The Regional Administrator may adopt the hearing officer's 
recommended decision, in whole or in part, or may reject or modify it. 
In any event, the Regional Administrator 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 Administrator's action 
shall constitute final Agency action for purposes of the Administrative 
Procedure Act.
    (4) In the case of a timely appeal from an American Samoa longline 
limited access permit initial permit decision, the Regional 
Administrator will issue the appellant a temporary American Samoa 
longline limited access permit. A temporary permit will expire 20 days 
after the Regional Administrator's final decision on the appeal. In no 
event will a temporary permit be effective for longer than 60 days.
    (5) With the exception of temporary permits issued under paragraph 
(n)(4) of this section, any time limit prescribed in this section may 
be extended for a period not to exceed 30 days by the Regional 
Administrator for good cause, either upon his/her own motion or upon 
written request from the appellant stating the reason(s) therefor.

0
5. Section 660.22 is revised to read as follows:


Sec.  660.22  Prohibitions.

    In addition to the prohibitions specified in Part 600 Sec.  600.725 
of this chapter, it is unlawful for any person to do any of the 
following:
    (a) Falsify or fail to make and/or file all reports of Pacific 
pelagic management unit species landings, containing all data and in 
the exact manner, as required by applicable state law or regulation, as 
specified in Sec.  660.3, provided that the person is required to do so 
by applicable state law or regulation.
    (b) Use a vessel without a valid permit issued under the High Seas 
Fishing Compliance Act to fish for Pacific pelagic management unit 
species using longline gear, on the high seas, in violation of 
Sec. Sec.  300.15 and 660.21(a)of this title.
    (c) Use a vessel in the EEZ around the Hawaiian Archipelago without 
a valid Hawaii longline limited access permit registered for use with 
that vessel, to fish for Pacific pelagic management unit species using 
longline gear, in violation of Sec.  660.21(b)(1).
    (d) Use a vessel shoreward of the outer boundary of the EEZ around 
the Hawaiian Archipelago without a valid Hawaii longline limited access 
permit registered for use with that vessel, to land or transship 
Pacific pelagic management unit species that were harvested with 
longline gear, in violation of Sec.  660.21(b)(2).
    (e) Use a vessel in the EEZ around American Samoa without a valid 
American Samoa longline limited access permit registered for use with 
that vessel, to fish for Pacific pelagic management unit species using 
longline gear, in violation of Sec.  660.21(c)(1).
    (f) Use a vessel shoreward of the outer boundary of the EEZ around 
American Samoa without a valid American Samoa longline limited access 
permit registered for use with that vessel, to land Pacific pelagic 
management unit species that were caught with longline gear within the 
EEZ around American Samoa, in violation of Sec.  660.21(c)(2).
    (g) Use a vessel within the EEZ around American Samoa without a 
valid American Samoa longline limited access permit registered for use 
with that vessel, to transship Pacific pelagic management unit species 
that were

[[Page 29653]]

caught with longline gear, in violation of Sec.  660.21(c)(3).
    (h) Use a vessel in the EEZ around Guam, the Northern Mariana 
Islands, or the Pacific remote island areas (with the exception of 
Midway Atoll) without either a valid Western Pacific general longline 
permit, American Samoa longline limited access permit or a Hawaii 
longline limited access permit registered for use with that vessel, to 
fish for Pacific pelagic management unit species using longline gear, 
in violation of Sec.  660.21(d)(1).
    (i) Use a vessel shoreward of the outer boundary of the EEZ around 
Guam, the Northern Mariana Islands, or the Pacific remote island areas 
(with the exception of Midway Atoll) without either a valid Western 
Pacific general longline permit, American Samoa longline limited access 
permit or a Hawaii longline limited access permit registered for use 
with that vessel, to land or transship Pacific pelagic management unit 
species that were harvested using longline gear, in violation of Sec.  
660.21(d)(2).
    (j) Use a vessel in the Western Pacific Fishery Management Area to 
land or transship Pacific pelagic management unit species caught by 
other vessels using longline gear, without a valid receiving vessel 
permit registered for use with that vessel, in violation of Sec.  
660.21(e).
    (k) Use a vessel in the EEZ around the PRIA employing handline or 
trolling methods to fish for Pacific pelagic management unit species 
without a valid PRIA pelagic troll and handline fishing permit 
registered for use for that vessel, in violation of Sec.  660.21(f).
    (l) Fish in the fishery after failing to comply with the 
notification requirements in Sec.  660.23.
    (m) Fail to comply with notification requirements set forth in 
Sec.  660.23 or in any EFP issued under Sec.  660.17.
    (n) Fail to comply with a term or condition governing the vessel 
monitoring system when using a vessel registered for use with a Hawaii 
longline limited access permit, or a vessel registered for use with a 
size Class C or D American Samoa longline limited access permit, in 
violation of Sec.  660.25.
    (o) Fish for, catch, or harvest Pacific pelagic management unit 
species with longline gear without a VMS unit on board the vessel after 
installation of the VMS unit by NMFS, in violation of Sec.  
660.25(d)(2).
    (p) Possess on board a vessel without a VMS unit Pacific pelagic 
management unit species harvested with longline gear after NMFS has 
installed the VMS unit on the vessel, in violation of Sec.  
660.25(d)(2).
    (q) Interfere with, tamper with, alter, damage, disable, or impede 
the operation of a VMS unit or to attempt any of the same; or to move 
or remove a VMS unit without the prior permission of the SAC in 
violation of Sec.  660.25(d)(3).
    (r) Make a false statement, oral or written, to an authorized 
officer, regarding the use, operation, or maintenance of a VMS unit, in 
violation of Sec.  660.25(d)(1).
    (s) Interfere with, impede, delay, or prevent the installation, 
maintenance, repair, inspection, or removal of a VMS unit, in violation 
of Sec.  660.25(d)(1).
    (t) Interfere with, impede, delay, or prevent access to a VMS unit 
by a NMFS observer, in violation of Sec.  660.28(f)(4).
    (u) Connect or leave connected additional equipment to a VMS unit 
without the prior approval of the SAC, in violation of Sec.  660.25(e).
    (v) Fish with longline gear within a longline fishing prohibited 
area, except as allowed pursuant to an exemption issued under Sec.  
660.17 or Sec.  660.27, in violation of Sec.  660.26.
    (w) Fish for Pacific pelagic management unit species with longline 
gear within the protected species zone, in violation of Sec.  
660.26(b).
    (x) Fail to comply with a term or condition governing the observer 
program established in Sec.  660.28 if using a vessel registered for 
use with a Hawaii longline limited access permit, or a vessel 
registered for use with a size Class B, C or D American Samoa longline 
limited access permit, to fish for Pacific pelagic management unit 
species using longline gear.
    (y) Fail to comply with other terms and conditions that the 
Regional Administrator imposes by written notice to either the permit 
holder or the designated agent of the permit holder to facilitate the 
details of observer placement.
    (z) Enter the EEZ around the Hawaiian Archipelago with longline 
gear that is not stowed or secured in accordance with Sec.  660.29, if 
operating a U.S. vessel without a valid Hawaii longline limited access 
permit registered for use with that vessel.
    (aa) Enter the EEZ around Guam, the Northern Mariana Islands, or 
PRIA with longline gear that is not stowed or secured in accordance 
with Sec.  660.29 if operating a U.S. vessel without a valid Western 
Pacific general longline permit, American Samoa longline limited access 
permit, or Hawaii longline limited access permit, registered for use 
with that vessel.
    (bb) Enter the EEZ around American Samoa with longline gear that is 
not stowed or secured in accordance with Sec.  660.29, if operating a 
U.S. vessel without a valid American Samoa longline limited access 
permit registered for use with that vessel.
    (cc) Fail to carry, or fail to use, a line clipper, dip net, or 
dehooker on a vessel registered for use under a Hawaii longline limited 
access permit, in violation of Sec.  660.32(a).
    (dd) When operating a vessel registered for use under a American 
Samoa longline limited access permit or a Hawaii longline limited 
access permit, fail to comply with the sea turtle handling, 
resuscitation, and release requirements, in violation of Sec.  
660.32(b).
    (ee) Engage in shallow-setting without a valid shallow-set 
certificate for each shallow set made, in violation of Sec.  660.33(c).
    (ff) Fail to attach a valid shallow-set certificate for each 
shallow-set to the original logbook form submitted to the Regional 
Administrator under Sec.  660.14, in violation of Sec.  660.33(c).
    (gg) Possess float lines less than 20 meters in length on board a 
vessel registered for use under a Hawaii longline limited access permit 
at any time during a trip for which notification to NMFS under Sec.  
660.23(a) indicated that deep-setting would be done, in violation of 
Sec.  660.33(d).
    (hh) Possess light sticks on board a vessel registered for use 
under a Hawaii longline limited access permit at any time during a trip 
for which notification to NMFS under Sec.  660.23(a) indicated that 
deep-setting would be done, in violation of Sec.  660.33(d).
    (ii) Transfer a shallow-set certificate to a person other than a 
holder of a Hawaii longline limited access permit, in violation of 
Sec.  660.33(e).
    (jj) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0[deg] lat.) with hooks other than offset circle hooks sized 18/0 or 
larger, with 10[deg] offset, in violation of Sec.  660.33(f).
    (kk) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit north of the equator 
(0[deg] lat.) with bait other than mackerel-type bait, in violation of 
Sec.  660.33(g).
    (ll) From a vessel registered for use under a Hawaii longline 
limited access permit, make any longline set not of the type (shallow-
setting or deep-setting) indicated in the notification to the Regional 
Administrator pursuant to Sec.  660.23(a), in violation of Sec.  
660.33(h).
    (mm) Engage in shallow-setting from a vessel registered for use 
under a Hawaii longline limited access permit after the shallow-set 
component of the

[[Page 29654]]

longline fishery has been closed pursuant to Sec.  660.33(b)(2)(I), in 
violation of Sec.  660.33(I).
    (nn) Land or possess more than 10 swordfish on board a vessel 
registered for use under a Hawaii longline limited access permit on a 
fishing trip for which the permit holder notified NMFS under Sec.  
660.23(a) that the vessel would conduct a deep-setting trip, in 
violation of Sec.  660.33(j).
    (oo) Own or operate a vessel that is registered for use under a 
Hawaii longline limited access permit and engaged in longline fishing 
for Pacific pelagic management unit species and fail to be certified 
for completion of a NMFS protected species workshop, in violation of 
Sec.  660.34(a).
    (pp) Operate a vessel registered for use under a Hawaii longline 
limited access permit while engaged in longline fishing without having 
on board a valid protected species workshop certificate issued by NMFS 
or a legible copy thereof, in violation of Sec.  660.34(d).
    (qq) Fail to use a line setting machine or line shooter, with 
weighted branch lines, to set the main longline when operating a vessel 
that is registered for use under a Hawaii longline limited access 
permit and equipped with monofilament main longline, when making deep 
sets north of 23[deg] N. lat., in violation of Sec.  660.35(a)(1) or 
(a)(2).
    (rr) Fail to employ basket-style longline gear such that the 
mainline is deployed slack when operating a vessel registered for use 
under a Hawaii longline limited access north of 23[deg] N. lat., in 
violation of Sec.  660.35(a)(3).
    (ss) Fail to maintain and use blue dye to prepare thawed bait when 
operating a vessel registered for use under a Hawaii longline limited 
access permit that is fishing north of 23[deg] N. lat., in violation of 
Sec.  660.35(a)(4), (a)(5), or (a)(6).
    (tt) Fail to retain, handle, and discharge fish, fish parts, and 
spent bait, strategically when operating a vessel registered for use 
under a Hawaii longline limited access permit that is fishing north of 
23[deg] N. lat., in violation of Sec.  660.35(a)(7), through (a)(9).
    (uu) Fail to be begin the deployment of longline gear at least 1 
hour after local sunset or fail to complete the setting process before 
local sunrise from a vessel registered for use under a Hawaii longline 
limited access permit while shallow-setting north of 23[deg] N. lat., 
in violation of Sec.  660.35(a)(1).
    (vv) Fail to handle short-tailed albatrosses that are caught by 
pelagic longline gear in a manner that maximizes the probability of 
their long-term survival, in violation of Sec.  660.35 (b).
    (ww) Fail to handle seabirds other than short-tailed albatrosses 
that are caught by pelagic longline gear in a manner that maximizes the 
probability of their long-term survival, in violation of Sec.  
660.35(c).
    (xx) Use a large vessel to fish for Pelagic management unit species 
within an American Samoa large vessel prohibited area except as allowed 
pursuant to an exemption issued under Sec.  660.38.
    (yy) Fish for Pacific pelagic management unit species using gear 
prohibited under Sec.  660.30 or not permitted by an EFP issued under 
Sec.  660.17.

0
6. Section 660.23 is revised to read as follows:


Sec.  660.23  Notifications.

    (a) The permit holder for any vessel registered for use under a 
Hawaii longline limited access permit or for any vessel greater than 40 
ft (12.2 m) in length overall that is registered for use under an 
American Samoa longline limited access permit, or a designated agent, 
shall provide a notice to the Regional Administrator at least 72 hours 
(not including weekends and Federal holidays) before the vessel leaves 
port on a fishing trip, any part of which occurs in the EEZ around the 
Hawaiian Archipelago or American Samoa. For the purposes of this 
section, the vessel operator will be presumed to be an agent designated 
by the permit holder unless the Regional Administrator is otherwise 
notified by the permit holder. The notice must be provided to the 
office or telephone number designated by the Regional Administrator. 
The notice must provide the official number of the vessel, the name of 
the vessel, the intended departure date, time, and location, the name 
of the operator of the vessel, and the name and telephone number of the 
agent designated by the permit holder to be available between 8 a.m. 
and 5 p.m. (local time) on weekdays for NMFS to contact to arrange 
observer placement. Permit holders for vessels registered for use under 
Hawaii longline limited access permits must also provide notification 
of the trip type (either deep-setting or shallow-setting).
    (b) The operator of any vessel subject to the requirements of this 
subpart who does not have on board a VMS unit while transiting the 
protected species zone as defined in Sec.  660.12, must notify the NMFS 
Special-Agent-In-Charge immediately upon entering and immediately upon 
departing the protected species zone. The notification must include the 
name of the vessel, name of the operator, date and time (GMT) of access 
or exit from the protected species zone, and location by latitude and 
longitude to the nearest minute.
    (c) The permit holder for any American Samoa longline limited 
access permit, or an agent designated by the permit holder, must notify 
the Regional Administrator in writing within 30 days of any change to 
the permit holder's contact information or any change to the vessel 
documentation associated with a permit registered to an American Samoa 
longline limited access permit. Complete changes in the ownership of 
the vessel registered to an American Samoa longline limited access 
permit must also be reported to PIRO in writing within 30 days of the 
change. Failure to report such changes may result in a delay in 
processing an application, permit holders failing to receive important 
notifications, or sanctions pursuant to the Magnuson-Stevens Act at 16 
U.S.C. Sec.  1858(g) or 15 CFR part 904, subpart D.

0
7. In Sec.  660.25, paragraph (b), the first sentence of paragraph (c), 
and the introductory text of paragraph (d) are revised to read as 
follows:


Sec.  660.25  Vessel monitoring systems.

* * * * *
    (b) Notification. After a Hawaii longline limited access permit 
holder or size Class C or D American Samoa longline limited access 
permit holder has been notified by the SAC of a specific date for 
installation of a VMS unit on the permit holder's vessel, the vessel 
must carry the VMS unit after the date scheduled for installation.
    (c) Fees and charges. During the experimental VMS program, a Hawaii 
longline limited access permit holder or size Class C or D American 
Samoa longline permit holder with a size Class D or D permit shall not 
be assessed any fee or other charges to obtain and use a VMS unit, 
including the communication charges related directed to requirements 
under this section. * * *
    (d) Permit holder duties. The holder of a Hawaii longline limited 
access permit or a size Class C or D American Samoa longline permit and 
master of the vessel must: * * *

0
8. Section 660.36 is added to read as follows:


Sec.  660.36  American Samoa longline limited entry program.

    (a) General. Under Sec.  660.21(c), certain U.S. vessels are 
required to be registered for use under a valid American Samoa longline 
limited access permit. With the exception of reductions in permits in 
vessel size Class A under paragraph (c)(1) of this section, the maximum

[[Page 29655]]

number of permits will be capped at the number of initial permits 
actually issued under paragraph (f)(1) of this section.
    (b) Terminology. For purposes of this section, the following terms 
have these meanings:
    (1) Documented participation means participation proved by, but not 
necessarily limited to, a properly submitted NMFS or American Samoa 
logbook, an American Samoa creel survey record, a delivery or payment 
record from an American Samoa-based cannery, retailer or wholesaler, an 
American Samoa tax record, an individual wage record, ownership title, 
vessel registration, or other official documents showing:
    (i) Ownership of a vessel that was used to fish in the EEZ around 
American Samoa, or
    (ii) Evidence of work on a fishing trip during which longline gear 
was used to harvest Pacific pelagic management unit species in the EEZ 
around American Samoa. If the applicant does not possess the necessary 
documentation of evidence of work on a fishing trip based on records 
available only from NMFS or the Government of American Samoa (e.g., 
creel survey record or logbook), the applicant may request PIRO to 
obtain such records from the appropriate agencies, if available. The 
applicant should provide sufficient information on the fishing trip to 
allow PIRO to retrieve the records.
    (2) Family means those people related by blood, marriage, and 
formal or informal adoption.
    (c) Vessel size classes. The Regional Administrator shall issue 
American Samoa longline limited access permits in the following size 
classes:
    (1) Class A: Vessels less than or equal to 40 ft (12.2 m) length 
overall. The maximum number will be reduced as Class B-1, C-1, and D-1 
permits are issued under paragraph (e) of this section.
    (2) Class B: Vessels over 40 ft (12.2 m) to 50 ft (15.2 m) length 
overall.
    (3) Class B-1: Maximum number of 14 permits for vessels over 40 ft 
(12.2 m) to 50 ft (15.2 m) length overall, to be made available 
according to the following schedule:
    (i) Four permits in the first calendar year after the Regional 
Administrator has issued all initial permits in
    Classes A, B, C, and D (initial issuance),
    (ii) In the second calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first four, plus four 
additional permits,
    (iii) In the third calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first eight, plus 
four additional permits, and
    (iv) In the fourth calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first 12, plus two 
additional permits.
    (4) Class C: Vessels over 50 ft (15.2 m) to 70 ft (21.3 m) length 
overall.
    (5) Class C-1: Maximum number of six permits for vessels over 50 ft 
(15.2) to 70 ft (21.3 m) length overall, to be made available according 
to the following schedule:
    (i) Two permits in the first calendar year after initial issuance,
    (ii) In the second calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first two, plus two 
additional permits, and
    (iii) In the third calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first four, plus two 
additional permits.
    (6) Class D: Vessels over 70 ft (21.3 m) length overall.
    (7) Class D-1: Maximum number of 6 permits for vessels over 70 ft 
(21.3 m) length overall, to be made available according to the 
following schedule:
    (i) Two permits in the first calendar year after initial issuance,
    (ii) In the second calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first two, plus two 
additional permits, and
    (iii) In the third calendar year after initial issuance, any 
unissued, relinquished, or revoked permits of the first four, plus two 
additional permits.
    (d) A vessel subject to this section may only be registered with an 
American Samoa longline limited access permit of a size class equal to 
or larger than the vessel's length overall.
    (e) Initial permit qualification. Any U.S. national or U.S. citizen 
or company, partnership, or corporation qualifies for an initial 
American Samoa longline limited access permit if the person, company, 
partnership, or corporation, on or prior to March 21, 2002, owned a 
vessel that was used during the time of their ownership to harvest 
Pacific pelagic management unit species with longline gear in the EEZ 
around American Samoa and that fish was landed in American Samoa:
    (1) Prior to March 22, 2002, or
    (2) Prior to June 28, 2002, provided that the person or business 
provided to NMFS or the Council, prior to March 22, 2002, a written 
notice of intent to participate in the pelagic longline fishery in the 
EEZ around American Samoa.
    (f) Initial permit issuance. (1) Any application for issuance of an 
initial permit must be submitted to the Pacific Islands Regional Office 
no later than 120 days after the effective date of this final rule. The 
Regional Administrator shall publish a notice in the Federal Register, 
send notices to persons on the American Samoa pelagics mailing list, 
and use other means to notify prospective applicants of the 
availability of permits. Applications for initial permits must be made, 
and application fees paid, in accordance with Sec. Sec.  660.13(c)(1), 
(d) and (f)(2). A complete application must include documented 
participation in the fishery in accordance with Sec.  660.36(b)(1). If 
the applicant is any entity other than a sole owner, the application 
must be accompanied by a supplementary information sheet obtained from 
the Regional Administrator, containing the names and mailing addresses 
of all owners, partners, and corporate officers.
    (2) Only permits of Class A, B, C, and D will be made available for 
initial issuance. Permits of Class B-1, C-1, and D-1, will be made 
available in subsequent calendar years.
    (3) Within 30 days of receipt of a completed application, the 
Assistant Regional Administrator for Sustainable Fisheries, PIRO, shall 
make a decision on whether the applicant qualifies for an initial 
permit and will notify the successful applicant by a dated letter. The 
successful applicant must register a vessel, of the equivalent size 
class or smaller to which the qualifying vessel would have belonged, to 
the permit within 120 days of the date of the letter of notification, 
and maintain this vessel registration to the permit for at least 120 
days. The successful applicant must also submit a supplementary 
information sheet, obtained from the Regional Administrator, containing 
the name and mailing address of the owner of the vessel to which the 
permit is registered. If the registered vessel is owned by any entity 
other than a sole owner, the names and mailing addresses of all owners, 
partners, and corporate officers must be included. (4) An appeal of a 
denial of an application for an initial permit shall be processed in 
accordance with Sec.  660.21(n) of this subpart.
    (4) After all appeals on initial permits are concluded in any 
vessel size class, the maximum number of permits in that class shall be 
the number of permits issued during the initial issuance process 
(including appeals). The maximum number of permits will not change, 
except that the maximum number of Class A permits will be reduced if 
Class A permits are replaced by B-1, C-1, or D-1 permits under 
paragraph (h) of this section. Thereafter,

[[Page 29656]]

if any Class A, B, C, or D permit becomes available, the Regional 
Administrator shall re-issue that permit according to the process set 
forth in paragraph (g) of this section.
    (g) Additional permit issuance. (1) If the number of permits issued 
in Class A, B, C, or D, falls below the maximum number of permits, the 
Regional Administrator shall publish a notice in the Federal Register, 
send notices to persons on the American Samoa pelagics mailing list, 
and use other means to notify prospective applicants of any available 
permit(s) in that class. Any application for issuance of an additional 
permit must be submitted to PIRO no later than 120 days after the date 
of publication of the notice on the availability of additional permits 
in the Federal Register. A complete application must include documented 
participation in the fishery in accordance with Sec.  660.36(b)(1). The 
Regional Administrator shall issue permits to persons according the 
following priority standard:
    (i) First priority accrues to the person with the earliest 
documented participation in the pelagic longline fishery in the EEZ 
around American Samoa on a Class A sized vessel.
    (ii) The next priority accrues to the person with the earliest 
documented participation in the pelagic longline fishery in the EEZ 
around American Samoa on a Class B size, Class C size, or Class D size 
vessel, in that order.
    (iii) In the event of a tie in the priority ranking between two or 
more applicants, then the applicant whose second documented 
participation in the pelagic longline fishery in the EEZ around 
American Samoa is first in time will be ranked first in priority. If 
there is still a tie between two or more applicants, the Regional 
Administrator will select the successful applicant by an impartial 
lottery.
    (2) Applications must be made, and application fees paid, in 
accordance with Sec. Sec.  660.13(c)(1), (d), and (f)(2). If the 
applicant is any entity other than a sole owner, the application must 
be accompanied by a supplementary information sheet, obtained from the 
Regional Administrator, containing the names and mailing addresses of 
all owners, partners, and corporate officers that comprise ownership of 
the vessel for which the permit application is prepared.
    (3) Within 30 days of receipt of a completed application, the 
Assistant Regional Administrator for Sustainable Fisheries shall make a 
decision on whether the applicant qualifies for a permit and will 
notify the successful applicant by a dated letter. The successful 
applicant must register a vessel of the equivalent vessel size or 
smaller to the permit within 120 days of the date of the letter of 
notification. The successful applicant must also submit a supplementary 
information sheet, obtained from the Regional Administrator, containing 
the name and mailing address of the owner of the vessel to which the 
permit is registered. If the registered vessel is owned by any entity 
other than a sole owner, the names and mailing addresses of all owners, 
partners, and corporate officers must be included. If the successful 
applicant fails to register a vessel to the permit within 120 days of 
the date of the letter of notification, the Assistant Regional 
Administrator for Sustainable Fisheries shall issue a letter of 
notification to the next person on the priority list or, in the event 
that there are no more prospective applicants on the priority list, re-
start the issuance process pursuant to paragraph (g)(1) of this 
section. Any person who fails to register the permit to a vessel under 
this paragraph within 120 days shall not be eligible to apply for a 
permit for 6 months from the date those 120 days expired.
    (4) An appeal of a denial of an application for a permit shall be 
processed in accordance with Sec.  660.21(n).
    (h) Class B-1, C-1, and D-1 Permits. (1) Permits of Class B-1, C-1, 
and D-1 will be initially issued only to persons who hold a Class A 
permit and who, prior to March 22, 2002, participated in the pelagic 
longline fishery around American Samoa.
    (2) The Regional Administrator shall issue permits to persons for 
Class B-1, C-1, and D-1 permits based on each person's earliest 
documented participation, with the highest priority given to that 
person with the earliest date of documented participation.
    (3) A permit holder who receives a Class B-1, C-1, or D-1 permit 
must relinquish his or her Class A permit and that permit will no 
longer be valid. The maximum number of Class A permits will be reduced 
accordingly.
    (4) Within 30 days of receipt of a completed application for a 
Class B-1, C-1, and D-1 permit, the Regional Administrator shall make a 
decision on whether the applicant qualifies for a permit and will 
notify the successful applicant by a dated letter. The successful 
applicant must register a vessel of the equivalent vessel size or 
smaller to the permit within 120 days of the date of the letter of 
notification. The successful applicant must also submit a supplementary 
information sheet, obtained from the Regional Administrator, containing 
the name and mailing address of the owner of the vessel to which the 
permit is registered. If the registered vessel is owned by any entity 
other than a sole owner, the names and mailing addresses of all owners, 
partners, and corporate officers must be included.
    (5) An appeal of a denial of an application for a Class B-1, C-1, 
or D-1 permit shall be processed in accordance with Sec.  660.21(n).
    (6) If a Class B-1, C-1, or D-1 permit is relinquished, revoked, or 
not renewed pursuant to paragraph (j)(1) of this section, the Regional 
Administrator shall make that permit available according to the 
procedure described in paragraphs (g)(1) through (g)(4) of this 
section.
    (i) Permit transfer. The holder of an American Samoa longline 
limited access permit may transfer the permit to another individual, 
partnership, corporation, or other entity as described in this section. 
Applications for permit transfers must be submitted to the Regional 
Administrator within 30 days of the transferral date. If the applicant 
is any entity other than a sole owner, the application must be 
accompanied by a supplementary information sheet, obtained from the 
Regional Administrator, containing the names and mailing addresses of 
all owners, partners, and corporate officers. After such an application 
has been made, the permit is not valid for use by the new permit holder 
until the Regional Administrator has issued the permit in the new 
permit holder's name under Sec.  660.13(c).
    (1) Permits of all size classes except Class A. An American Samoa 
longline limited access permit of any size class except Class A may be 
transferred (by sale, gift, bequest, intestate succession, barter, or 
trade) to the following persons only:
    (i) A Western Pacific community located in American Samoa that 
meets the criteria set forth in section 305(I)(2) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(I)(2), and its implementing regulations, or
    (ii) Any person with documented participation in the pelagic 
longline fishery in the EEZ around American Samoa.
    (2) Class A Permits. An American Samoa longline limited access 
permit of Class A may be transferred (by sale, gift, bequest, intestate 
succession, barter, or trade) to the following persons only:
    (i) A family member of the permit holder,
    (ii) A Western Pacific community located in American Samoa that 
meets the criteria set forth in section 305(I)(2)

[[Page 29657]]

of the Magnuson-Stevens Act, 16 U.S.C. 1855(I)(2), and its implementing 
regulations, or
    (iii) Any person with documented participation in the pelagic 
longline fishery on a Class A size vessel in the EEZ around American 
Samoa prior to March 22, 2002.
    (3) Class B-1, C-1, and D-1 Permits. Class B-1, C-1, and D-1 
permits may not be transferred to a different owner for 3 years from 
the date of initial issuance, except by bequest or intestate succession 
if the permit holder dies during those 3 years. After the initial 3 
years, Class B-1, C-1, and D-1 permits may be transferred only in 
accordance with the restrictions in paragraph (I)(1) of this section.
    (j) Permit renewal and registration of vessels--(1) Use 
requirements. An American Samoa longline limited access permit will not 
be renewed following 3 consecutive calendar years (beginning with the 
year after the permit was issued in the name of the current permit 
holder) in which the vessel(s) to which it is registered landed less 
than:
    (i) For permit size Classes A or B: a total of 1,000 lb (455 kg) of 
Pacific pelagic management unit species harvested in the EEZ around 
American Samoa using longline gear, or
    (ii) For permit size Classes C or D: a total of 5,000 lb (2,273 kg) 
of Pacific pelagic management unit species harvested in the EEZ around 
American Samoa using longline gear.
    (k) Concentration of ownership of permits. No more than 10 percent 
of the maximum number of permits, of all size classes combined, may be 
held by the same permit holder. Fractional interest will be counted as 
a full permit for the purpose of calculating whether the 10-percent 
standard has been reached.
    (l) Three year review. Within 3 years of the effective date of this 
final rule the Council shall consider appropriate revisions to the 
American Samoa limited entry program after reviewing the effectiveness 
of the program with respect to its biological and socioeconomic 
objectives, concerning gear conflict, overfishing, enforceability, 
compliance, and other issues.
Sec. Sec.  660.13, 660.21, 660.22, 660.27, 660.28, 660.38, 660.41, 
660.42, 660.48, 660.49, 660.51, 660.61, 660.62, 660.63, 660.65, and 
660.86 [Amended]

0
10. In the table below, for each section indicated in the left column, 
remove the words indicated in the middle column from wherever they 
appear in the section, and add the words indicated in the right column:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Section                                           Remove                                                  Add
--------------------------------------------------------------------------------------------------------------------------------------------------------
660.13                                                                      Southwest Region FMD                 Western Pacific Regional Administrator
660.21                                                                                          LonWestern Pacific general longline permit PIRO Regional
                                                                                                                                          Administrator
660.22                                                                                          Longline generalWestern Pacific general longline permit
660.27                                                                       Pacific Area Office                                                   PIRO
660.28                                      Fisheries Observer Branch, Southwest Region Southwest         Observer Program, PIRO Regional Administrator
                                                                          Regional Administrator
660.38                                                                                          Longline generalWestern Pacific general longline permit
660.41                                                     Pacific Area Office Regional Director                                                   PIRO
660.42                                                                         Regional Director                                 Regional Administrator
660.48                                                                                     NMFS Law Enforcement Office                              SAC
660.49                                                                         Regional Director                                 Regional Administrator
660.51                                                                         Regional Director                                 Regional Administrator
660.61                                                                                      PIAO                                                   PIRO
660.62                                                                         Regional Director                                 Regional Administrator
660.63                                                                       Pacific Area Office                                                   PIRO
660.65                                                                       Pacific Area Office                                                   PIRO
660.86                                                               Pacific Islands Area Office                                                   PIRO
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 05-10351 Filed 5-23-05; 8:45 am]
BILLING CODE 3510-22-S