Proposed Rule2021-15171
Pacific Island Fisheries; Modifications to the American Samoa Longline Fishery Limited Entry Program
Primary source
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Published
July 19, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS proposes to modify the American Samoa longline fishery limited entry program to consolidate vessel class sizes, modify permit eligibility requirements, and reduce the minimum harvest requirements for small vessels. The intent of this proposed rule is to reduce regulatory barriers that may be limiting small vessel participation in the fishery, and provide for sustained community and indigenous American Samoan participation in the fishery. This proposed rule also makes several administrative updates to remove outdated regulations.
Full Text
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<title>Federal Register, Volume 86 Issue 135 (Monday, July 19, 2021)</title>
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[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Proposed Rules]
[Pages 37982-37986]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15171]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 665
[Docket No. 210712-0146]
RIN 0648-BH65
Pacific Island Fisheries; Modifications to the American Samoa
Longline Fishery Limited Entry Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to modify the American Samoa longline fishery
limited entry program to consolidate vessel class sizes, modify permit
eligibility requirements, and reduce the minimum harvest requirements
for small vessels. The intent of this proposed rule is to reduce
regulatory barriers that may be limiting small vessel participation in
the fishery, and provide for sustained community and indigenous
American Samoan participation in the fishery. This proposed rule also
makes several administrative updates to remove outdated regulations.
DATES: NMFS must receive comments by September 2, 2021.
ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2018-0023, by either of the following methods:
<bullet> Electronic Submission: Submit all electronic comments via
the Federal e-Rulemaking Portal. Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> and
enter NOAA-NMFS-2018-0023 in the Search box, click the ``Comment''
icon, complete the required fields, and enter or attach your comments.
<bullet> Mail: Send written comments to Michael D. Tosatto,
Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp
Blvd. Bldg. 176, Honolulu, HI 96818.
Instructions: NMFS may not consider comments sent by any other
method, to any other address or individual, or received after the end
of the comment period. All comments received are a part of the public
record, and NMFS will generally post them for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will
[[Page 37983]]
be publicly accessible. NMFS will accept anonymous comments (enter ``N/
A'' in the required fields if you wish to remain anonymous).
The Western Pacific Fishery Management Council (Council) prepared
Amendment 9, which includes a draft environmental assessment (EA) and
Regulatory Impact Review. Copies of Amendment 9 and other supporting
documents are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or from the
Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-
8220, <a href="http://www.wpcouncil.org">www.wpcouncil.org</a>.
FOR FURTHER INFORMATION CONTACT: Kate Taylor, NMFS PIR Sustainable
Fisheries, 808-725-5182.
SUPPLEMENTARY INFORMATION: The Council and NMFS manage the American
Samoa longline fishery under the FEP and implementing Federal
regulations. The fishery primarily targets albacore, which are sold
frozen to the fish processing industry in Pago Pago, American Samoa.
During the 1980s and 1990s, the longline fleet was mainly comprised of
alia, which are locally-built catamarans between 24 and 38 ft in
length. Longline fishing from an alia is a small-scale operation;
fishermen set about 350 hooks per set and haul the gear with hand-
operated reels. Fishing trips usually last one day because alia vessels
are not equipped to freeze catch onboard.
In the early 2000s, the longline fishery expanded rapidly with the
influx of large (over 50 ft) conventional monohull vessels similar to
the type used in the Hawaii-based longline fishery, including some
vessels from Hawaii. These vessels are able to travel farther from
shore and stay out longer, deploy 30-40 miles of mainline and 20,000
hooks per set, and could freeze catch onboard. From 2000 to 2004 the
number of large vessels increased from 4 to 29 while the number of
active alia vessels decreased from 37 to 9.
In 2004, in response to alia fishermen's concerns that a continued
influx of large vessels could result in adverse impacts to local stocks
and the small vessel fleet, the Council established, and NMFS
implemented, a limited entry program for the fishery (70 FR 29646, May
24, 2005). Qualification for a longline fishery permit required an
individual to document ownership of a vessel that was used to legally
harvest and land pelagic management unit species (pelagic MUS) with
longline gear in the U.S. EEZ around American Samoa prior to March 22,
2002. Initial permit holders were also required to be U.S. citizens or
nationals. The longline fishery permits were divided into four vessel
size categories: Class A (<40 ft), Class B (between 40 and 50 ft),
Class C (>50 ft and <70 ft), and Class D (>70 ft). The limited entry
program is limited to 60 permits annually (see Table 1).
Table 1--Maximum Number of Available Permits, Number of Permits Issued in 2010 and 2019, and Number of Active
Vessels in 2019
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Maximum
Vessel size class available Permits issued Permits issued Active vessels
permits in 2010 in 2019 in 2019
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A 40 ft or less................................. 16 12 4 3
B 40.1 ft-50 ft................................. 6 0 4 0
C 50.1 ft-70 ft................................. 12 12 12 5
D More than 70 ft............................... 26 26 26 10
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Total....................................... 60 50 46 18
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An American Samoa longline limited access permit of any size class,
except Class A, may be transferred to any person with documented
participation in the pelagic longline fishery in the EEZ around
American Samoa, or a western Pacific community located in American
Samoa that meets the criteria under Section 305(2) of the Magnuson-
Stevens Act (Community Development Program). A Class A permit holder
may transfer a permit to any person with documented participation in
the pelagic longline fishery on a Class A size vessel in the EEZ around
American Samoa before March 22, 2002, a western Pacific community
located in American Samoa that meets the criteria under Section 305(2)
of the Magnuson-Stevens Act (Community Development Program), or a
family member of the permit holder.
Permits are valid for three years from the date of issue. Current
regulations specify requirements to renew a limited access permit.
Class A and B permit holders are required to land (in American Samoa) a
minimum of 1,000 lb (454 kg) of pelagic MUS (harvested with longline
gear in the U.S. EEZ around American Samoa) over three consecutive
calendar years. Class C and D permit holders are required to land (in
American Samoa) a minimum of 5,000 lb (2,268 kg) of pelagic MUS
(harvested with longline gear in the U.S. EEZ around American Samoa)
over three consecutive calendar years. In the event that a permit
holder does not make the minimum landings within three consecutive
years, the permit reverts to NMFS. NMFS may then announce the
availability of a permit and issue the permit to a qualified applicant,
with the priority given to the applicant with the earliest
participation in the fishery onboard a Class A, B, C, or D vessel, in
that order.
Only a few small vessels have been active in the fishery since
2007. Participation by large vessels was somewhat stable from 2001
through 2010, but has declined and remained below 20 active vessels
annually since then. This proposed rule would change the current
American Samoa longline permit classifications, eligibility criteria,
and minimum harvest requirements to reduce barriers to participation in
the fishery by smaller vessels and to maintain small vessel
participation in the fishery, as described below.
Modification to Vessel Size Classification
This proposed rule would reduce the number of vessel size classes
from four to two. Class A and B vessels (less than 50 ft) would be
classified as Small Vessels and Class C and D vessels (equal to or
greater than 50 ft) would be classified as Large Vessels. NMFS would
convert all current permits into one of the two new classes, initially
resulting in 21 small vessel permits and 39 large vessel permits. The
program would continue to be limited to 60 permits. Consolidation of
the permit classes is intended to simplify administration of the
limited entry program.
[[Page 37984]]
Modification to Permit Eligibility Criteria
This proposed rule would restrict permit eligibility to U.S.
citizens and nationals only. This would apply to current permits
holders, future applicants, or in the case of permit transfers. This
proposed rule would also eliminate the criteria for having documented
fishery participation to be eligible for a permit. However, it would
not change the priority ranking system if there is competition between
two or more applicants for a permit (i.e., priority given to the
smallest vessel and then determined by documented participation in the
fishery).
Currently, there are likely younger fishermen in American Samoa who
own vessels in the small vessel class, but are restricted from
participating in the fishery because they do not have prior history.
For example, it has been 12 years since NMFS implemented the longline
limited entry program, and some of the fishermen who had documented
participation in the fishery have since passed away. Their children may
be interested in joining the fishery, but regulations may be excluding
them from the fishery because they do not have documented
participation. The Council and NMFS expect that removing the
requirement for permit holders to document history in the fishery will
expand opportunities for citizens and U.S. nationals to enter the
fishery. Such opportunities would be greatest for small vessel owners
in American Samoa.
Modification to Minimum Harvest Size Requirements
This proposed rule would reduce the minimum harvest requirement for
small vessels to 500 lb (227 kg) of pelagic MUS within a 3-year period.
The 5,000 lb (2,268 kg). Harvest for the large vessels would not be
modified. However, this proposed rule would eliminate the requirement
that the minimum harvests be caught within the U.S. EEZ around American
Samoa. The requirement for the minimum harvest amounts to be landed in
American Samoa would not be modified.
In the event of a permit transfer, if the minimum harvest amount
has not been caught at the time of transfer, the minimum harvest period
would not restart. Instead, the new permit holder would be required to
meet the harvest requirement based on the following formula: The
product of percentage of time left within the three-year permit period
and the minimum harvest amount.
For example, the original permit holder, Person A, has 1.5 years
left on the three-year permit (50% of the total time) at the time of
transfer to Person B. Person A has harvested 300 lb (136 kg) of the 500
lb (new, 227 kg) minimum harvest amount. Under this proposed rule, the
minimum harvest amount applied to Person B at time of transfer is
computed as:
50 percent (or 0.5) x 500 lb (227 kg) = 250 lb (113 kg)
Therefore, Person B would need to catch 250 lb (113 kg) within the
remaining 1.5 years. The catch required by Person B is independent from
the amount Person A caught.
Reducing the three-year minimum harvest requirement could result in
higher permit retention rates over time for those small vessels that
may be having some economic or other difficulty to meet the minimum
harvest requirements and allow those permit holders to renew their
permits when they otherwise would have to forfeit them. Additionally,
reducing the minimum harvest requirement could provide additional
encouragement for those thinking about entering the small boat fleet.
The proposed rule would also make several administrative updates to
remove outdated American Samoa longline limited entry program
regulations. Specifically, this proposed rule removes regulations
describing the original application process and the issuance of permits
by vessel class in the first three years of the program. All other
management measures will continue to apply in the American Samoa
Limited entry Longline fishery.
NMFS invites public comments on the proposed action, and
specifically invites comments that address the impact of this proposed
action on cultural fishing in American Samoa. NMFS must receive any
comments by the date provided in the DATES section. In addition, NMFS
is soliciting comments on proposed Amendment 9, as stated in the Notice
of Availability (NOA) published on June 30, 2021 (86 FR 34711). NMFS
must receive comments on the NOA by August 30, 2021. NMFS may not
consider any comments not postmarked or otherwise transmitted by that
date. NMFS will consider public comments received in response to the
request for comments on the NOA and to the request for comments in this
proposed rule in the decision to approve, disapprove, or partially
approve Amendment 9.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed action
is consistent with the FEP, other provisions of the Magnuson-Stevens
Act, and other applicable laws, subject to further consideration after
public comment.
Certification of Finding of No Significant Impact on Substantial Number
of Small Entities
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
A description of the proposed action, why it is being considered, and
the legal basis for it are contained in the preamble to this proposed
rule.
This proposed action would directly apply to longline vessels
federally permitted under the Pelagics FEP, specifically American Samoa
longline permit holders. The longline fishery based in American Samoa
is a limited access fishery with a maximum of 60 vessels under the
federal permit program. Vessels range in size from under 40 to over 70
ft. long. In 2019, NMFS issued 50 American Samoa longline permits, with
17 of these vessels actively participating in the fishery. Only three
of the active vessels were Class A or B vessels. The total longline
fleet revenue (estimated landed value) in 2019 was $3.9 million, and
albacore composed of over 89% of the total landed value. Other main
species included yellowfin, bigeye, skipjack, and wahoo. With 17 active
longline vessels in 2019, the ex-vessel value of pelagic fish caught by
the American Samoa fishery averaged almost $230,000 per vessel.
NMFS has established a small business size standard for businesses,
including their affiliates, whose primary industry is commercial
fishing (see 50 CFR 200.2). A business primarily engaged in commercial
fishing (NAICS code 11411) is classified as a small business if it is
independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has combined annual receipts
not in excess of $11 million for all its affiliated operations
worldwide. Based on available information, NMFS has determined that all
vessels subject to the proposed action are small entities, i.e., they
are engaged in the business of finfish harvesting (NAICS code 114111),
are independently owned or operated, are not dominant in their field of
operation, and have annual gross receipts not in excess of $11 million.
Even though this proposed action would
[[Page 37985]]
apply to a substantial number of vessels, the implementation of this
action would not result in significant adverse economic impact to
individual vessels.
The proposed action does not duplicate, overlap, or conflict with
other Federal rules and is not expected to have significant impact on
small entities (as discussed above), organizations or government
jurisdictions. There does not appear to be disproportionate adverse
economic impacts from the proposed rule based on home port, gear type,
or relative vessel size. The proposed rule will not place a substantial
number of small entities, or any segment of small entities, at a
significant competitive disadvantage to large entities. As a result, an
initial regulatory flexibility analysis is not required and none has
been prepared.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
This proposed rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 665
Administrative practice and procedure, American Samoa, Fisheries,
Fishing, longline, Pacific Islands, Permits.
Dated: July 13, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 665 as follows:
PART 665--FISHERIES IN THE WESTERN PACIFIC
0
1. The authority citation for 50 CFR part 665 continues to read as
follows:
Authority: 16 U.S.C. 1801, et seq.
0
2. In Sec. 665.12, add the definition of ``Small vessel'' in
alphabetical order, to read as follows:
Sec. 665.12 Definitions.
* * * * *
Small vessel means, as used in this part, any vessel less than 50
ft (15.2 m) in length overall.
* * * * *
0
3. In Sec. 665.19, revise paragraph (a)(2) to read as follows:
Sec. 665.19 Vessel Monitoring System.
(a) * * *
(2) American Samoa Large Vessel longline limited entry permit
issued pursuant to Sec. 665.801(c);
* * * * *
0
4. In Sec. 665.802, revise paragraph (x) to read as follows:
Sec. 665.802 Prohibitions.
* * * * *
(x) Fail to comply with a term or condition governing the observer
program established in Sec. 665.808, if using a vessel registered for
use with a Hawaii longline limited access permit, or a large vessel
registered for use with an American Samoa longline limited access
permit to fish for western Pacific pelagic MUS using longline gear.
* * * * *
0
5. Revise Sec. 665.816 to read as follows:
Sec. 665.816 American Samoa longline limited entry program.
(a) General. Under Sec. 665.801(c), certain U.S. vessels are
required to be registered for use under a valid American Samoa longline
limited access permit. Under the American Samoa Longline Limited Entry
Program, the maximum number of longline fishing permits available is
limited to 60 permits annually.
(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 western Pacific pelagic MUS 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 issue a request to
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) Small vessel, which is less than 50 ft (15.2 m) LOA.
(2) Large vessel, which is equal to or over 50 ft (15.2 m) LOA.
(d) Permit eligibility. Any U.S. national or U.S. citizen or
company, partnership, or corporation is eligible for an American Samoa
longline limited access permit.
(e) Permit issuance. (1) If the number of permits issued falls
below the maximum number of permits allowed, the Regional Administrator
shall publish a notice in the Federal Register and use other means to
notify prospective applicants of any available permit(s) in each class.
Any application for issuance of a 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. The
Regional Administrator shall issue permits to persons according to the
following priority standard:
(i) Priority accrues to the person with the earliest documented
participation in the pelagic longline fishery in the EEZ around
American Samoa from smallest to largest vessel.
(ii) In the event of a tie in the priority ranking between two or
more applicants, 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. 665.13(c)(1), 665.13(d), and 665.13(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 Assistant Regional Administrator for Sustainable Fisheries,
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 appropriate size 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 Assistant Regional Administrator for
[[Page 37986]]
Sustainable Fisheries, 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 (e)(1) of this section. Any person who
fails to register the permit to a vessel under this paragraph (e)(3)
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. 665.801(o).
(f) 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 transfer 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 Assistant
Regional Administrator for Sustainable Fisheries, 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.
665.13(c).
(1) An American Samoa longline limited access permit may be
transferred (by sale, gift, bequest, intestate succession, barter, or
trade) to only the following persons:
(i) A western Pacific community located in American Samoa that
meets the criteria set forth in Sec. 3 05(I)(2) of the Magnuson-
Stevens Act, 16 U.S.C. 1855(I)(2), and its implementing regulations, or
(ii) Any U.S. citizens or national.
(2) Additionally, an American Samoa longline limited access small
vessel permit may also be transferred (by sale, gift, bequest,
intestate succession, barter, or trade) to a family member of the
permit holder.
(g) Permit renewal. (1) 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) Small vessel: A total of 500 lb (227 kg) of western Pacific
pelagic MUS harvested using longline gear, or
(ii) Large vessel: A total of 5,000 lb (2,268 kg) of western
Pacific pelagic MUS harvested using longline gear.
(2) For all vessels, the minimum harvest amount must be landed in
American Samoa.
(3) In the event of a transfer, the new permit holder would be
required to meet the harvest requirement based on the following
formula: Remaining harvest amount = product of percentage of time left
within the 3-year permit period and the minimum harvest amount for that
size vessel.
(h) Concentration of permits. No more than 10 percent of the
maximum number of permits, of both size classes combined, may be held
by the same permit holder. Fractional interest will be counted as a
full permit for calculating whether the 10-percent standard has been
reached.
[FR Doc. 2021-15171 Filed 7-16-21; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.