[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 [www.gpo.gov]
[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makes several administrative updates to remove outdated regulations.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 http://www.regulations.gov 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 
www.regulations.gov 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 https://www.regulations.gov, or from the 
Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-
8220, www.wpcouncil.org.

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
----------------------------------------------------------------------------------------------------------------
                                                      Maximum
                Vessel size class                    available    Permits issued  Permits issued  Active vessels
                                                      permits         in 2010         in 2019         in 2019
----------------------------------------------------------------------------------------------------------------
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
                                                 ---------------------------------------------------------------
    Total.......................................              60              50              46              18
----------------------------------------------------------------------------------------------------------------

    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