[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Rules and Regulations]
[Pages 19171-19177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10664]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 253 and 255
[Docket No. 960319086-6086-01; I.D. 021696A]
RIN 0648-AF48
Fisheries Obligation Guarantee Program and Interjurisdictional
Fisheries Act Program; Consolidation and Simplification of Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS amends the Fisheries Obligation Guarantee (FOG) Program
and Interjurisdictional Fisheries Act (IFA) Program regulations to
consolidate, clarify and simplify them in accordance with the National
Performance Review (NPR). This final rule also amends reference to
Paperwork Reduction Act (PRA) information-collection requirements to
reflect the consolidation.
EFFECTIVE DATE: May 1, 1996.
ADDRESSES: Michael L. Grable, Chief, Financial Services Division,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Michael L. Grable, (301) 713-2390.
SUPPLEMENTARY INFORMATION: The FOG Program provides long-term debt to
the fisheries and aquacultural industries. The IFA Program promotes and
encourages state activities in support of the management of
interjurisdictional fisheries resources identified in interstate or
Federal fishery management plans. The two regulations governing these
programs are consolidated and revised to comply with the NPR's clarity
and simplicity objectives. The revision reduces the regulations to
about 45 percent of their former size. It replaces outdated, confusing,
burdensome, duplicative, or superfluous provisions with clear policies
that efficiently effect statutory intent. It adds the minimum
provisions needed to make the regulations current. The revision is
extensive, so the revised regulations are republished in their
entirety.
Section 3506(c)(B)(i) of the PRA requires that agencies inventory
and display a current control assigned by the Director, Office of
Management and Budget (OMB), for each agency information collection.
Section 902.1(b) identifies the location of NOAA regulations for which
OMB approval numbers have been issued. This final rule eliminates
recordkeeping and recording requirements previously contained in
Sec. 255.4.
Classification
This rule refers to collection of information requirements that
have been approved by OMB under the Paperwork Reduction Act (PRA).
Applications for the Fisheries Obligation Guarantee Program have been
approved under OMB Control No. 0648-0012, with an estimated response
time of 8 hours per application. Applications for financial assistance
under the Interjurisdictional Fisheries Act Program use standard
Federal application procedures approved under OMB Control Numbers 0348-
0043, 0348-0044, and 0348-0046.
The estimated response time above includes the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of the collection of information to NMFS at the
Addresses above, and to OMB at the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, D.C. 20503
(Attention: NOAA Desk Officer).
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a 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.
This rule consolidates and simplifies existing regulations and is
administrative in nature. No useful purpose would be served by prior
notice and opportunity for comment. Accordingly, under 5 U.S.C.
553(b)(B), the Assistant Administrator for Fisheries, NOAA, for good
cause finds that prior notice and opportunity for comment is
unnecessary. Also, because this rule is administrative in nature and
not a substantive rule under 5 U.S.C. 533(d), it will be immediately
effective upon publication.
This final rule has been determined to be not significant for the
purposes of E.O. 12866.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated
authority to sign material for publication in the Federal Register to
the Assistant Administrator For Fisheries, NOAA.
List of Subjects
50 CFR Part 253
Disaster assistance, Fisheries, Grant programs-business,
Intergovernmental relations, Reporting and recordkeeping requirements,
Research.
50 CFR Part 255
Fisheries, Fishing vessels, Loan programs-business, Reporting and
recordkeeping requirements.
Catalog of Federal Domestic Assistance numbers CFDA No. 11.415
and CFDA No. 11.407, respectively.
Dated: April 23, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapter II are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b) the table, is amended by adding in
the left column under 50 CFR, in numerical order, the
[[Page 19172]]
entry ``253.15'' and in the right column, in corresponding position,
the control number ``0012''.
50 CFR CHAPTER II
3. Part 253 is revised to read as follows:
PART 253--FISHERIES ASSISTANCE PROGRAMS
Subpart A--General
Sec.
253.1 Purpose.
Subpart B--Fisheries Obligation Guarantee Program
253.10 Definitions.
253.11 Guarantee policy.
253.12 Guaranteed note, U.S. note, and security documents.
253.13 Ability and experience requirements.
253.14 Economic and financial requirements.
253.15 Miscellaneous.
253.16 Fees.
253.17 Demand and payment.
253.18 Program operating guidelines.
253.19 Default and liquidation.
Subpart C--Interjurisdictional Fisheries
253.20 Definitions.
253.21 Apportionment.
253.22 State projects.
253.23 Other funds.
253.24 Administrative requirements.
Authority: 46 U.S.C. 1271-1279 and 16 U.S.C. 4101 et seq.
Subpart A--General
Sec. 253.1 Purpose.
(a) The regulations in this part pertain to fisheries assistance
programs. Subpart B of these rules governs the Fisheries Obligation
Guarantee Program, which guarantees the repayment of certain long-term
fisheries and aquacultural debts. This allows those debts to be placed
in the same private investment market that buys U.S. Treasury
securities, where interest rates are lower and maturities are longer.
The Program does all credit work and holds and services all credit
collateral. The Program's guarantee fee makes it self-supporting.
(b) Subpart C implements Title III of Public Law 99-659 (16 U.S.C.
4100 et seq.), which has two objectives:
(1) To promote and encourage State activities in support of the
management of interjurisdictional fishery resources identified in
interstate or Federal fishery management plans; and
(2) To promote and encourage management of interjurisdictional
fishery resources throughout their range.
(3) The scope of this part includes guidance on making financial
assistance awards to States or Interstate Commissions to undertake
projects in support of management of interjurisdictional fishery
resources in both the exclusive economic zone (EEZ) and State waters,
and to encourage States to enter into enforcement agreements with
either the Department of Commerce or the Department of the Interior.
Subpart B--Fisheries Obligation Guarantee Program
Sec. 253.10 Definitions.
The terms used in this subpart have the following meanings:
Act means Title XI of the Merchant Marine Act, 1936, as amended.
Actual cost means project cost (less a 10-percent salvage value),
depreciated (excluding land) on a straightline basis at 1-year
intervals over the project property's useful life including
architectural, engineering, inspection, delivery, outfitting, and
interest costs, as well as the cost of any consulting contract the
Division requires.
Applicant means the one applying for a guarantee (the prospective
notemaker).
Application means an application for a guarantee.
Application fee means 0.5 percent of the dollar amount of an
application.
Aquacultural facility means land, land structures, water
structures, water craft built in the U.S., and equipment for hatching,
caring for, or growing fish under controlled circumstances and for its
unloading, receiving, holding, processing, or distribution for
commercial purposes.
CCF means Capital Construction Fund.
Citizen means a citizen or national of the U.S. who is otherwise
also a citizen for the purpose of documenting a vessel in the coastwise
trade under section 2 of the Shipping Act, 1916, as amended.
Contributory project means any project that contributes to
developing the U.S. fishing industry by: Causing any vessel to catch
less overutilized species than before; applying new technology;
improving safety or fuel efficiency; making project property more
efficient, productive, or competitive; potentially increasing fisheries
exports; helping develop an underutilized fishery; or enhancing
financial stability, financial performance, growth, productivity, or
any other business attribute.
Demand means a noteholder's request that the guarantor pay a
guaranteed note's full principal and interest balance.
Division means the Financial Services Division, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
U.S. Department of Commerce.
Dual Use CCF means a CCF agreement whose qualified vessel is
project property and whose deposits are pledged to repayment of the
U.S. note.
Facility means a fisheries facility or aquacultural facility.
Financing means the first permanent debt placed on project property
for financing its project cost.
Fish means all forms of aquatic animal and plant life, except
marine mammals and birds.
Fishery facility means land, land structures, water craft that do
not fish, and equipment used for transporting, unloading, receiving,
holding, processing, or distributing fish for commercial purposes
(including any fishery facility for passenger fishing).
Fishing means catching wild fish for commercial purposes (including
passenger fishing).
Guarantee means the guarantor's contractual promise, backed by the
full faith and credit of the United States, to repay a guaranteed note
if a notemaker fails to repay it as agreed.
Guarantee fee means 1 percent of a guaranteed note's average annual
unpaid principal balance.
Guaranteed note means a promissory note from a notemaker to a
noteholder whose repayment the guarantor guarantees.
Guarantor means the U.S., acting, under the Act, by and through the
Secretary of Commerce.
Industry means the fisheries and/or aquacultural industry.
Noteholder means a guaranteed note payee.
Notemaker means a guaranteed note payor.
Passenger fishing means carrying in vessels for commercial purposes
passengers who catch fish.
Program means the Fisheries Obligation Guarantee Program.
Project means the construction of new project property or the
refurbishing or purchase of used project property including
architectural, engineering, inspection, delivery, outfitting, and
interest costs, as well as the cost of any consulting contract the
Division requires.
Project property means the vessel or facility involved in a project
whose actual cost is eligible under the Act for guarantee and controls
the dollar amount of a guaranteed note.
Property means the project property and all other property pledged
as security for a U.S. note.
Qualified means acceptable, in the Division's credit risk judgment,
and otherwise meeting the Division's requirements for guarantee.
[[Page 19173]]
Refinancing means newer debt that either replaces older debt or
reimburses applicants for previous expenditures.
Refinancing/assumption fee means 0.25 percent of the principal
amount of a guaranteed note to be refinanced or assumed.
Refurbishing means any reconstruction, reconditioning, or other
improvement of used project property involving more than routine repair
or maintenance.
Security documents mean all collateral securing the U.S. note's
repayment and all other assurances, undertakings, and contractual
arrangements associated with the U.S. note.
Underutilized fishery means:
(1) For a vessel, any fish species harvested below its sustainable
yield.
(2) For a fisheries facility, any facility using that species or
any for which aggregate facilities are inadequate to best use harvests
of that or any other species.
U.S. means the United States of America and, for citizenship
purposes, includes the Commonwealth of Puerto Rico; American Samoa; the
U.S. Virgin Islands; Guam; the Republic of the Marshal Islands; the
Federated States of Micronesia; the Commonwealth of the Northern
Mariana Islands; any other commonwealth, territory, or possession of
the United States; or any political subdivision of any of them.
U.S. note means a promissory note payable by the notemaker to the
guarantor.
Useful life means the period during which project property will, as
determined by the Division, remain economically productive.
Vessel means any vessel documented under U.S. law and used for
fishing.
Wise use means the wise use of fisheries resources and their
development, advancement, management, conservation, and protection.
Sec. 253.11 Guarantee policy.
(a) A guarantee financing or refinancing up to 80 percent of a
project's actual cost shall be available to any qualified citizen
otherwise eligible under the Act and these rules, except:
(1) Vessel construction. The Program will not finance this project
cost. The Program will only refinance this project cost for an existing
vessel whose previous construction cost has already been financed (or
otherwise paid). Refinancing this project cost for a vessel that
already exists is not inconsistent with wise use, but financing it may
be.
(2) Vessel refurbishing that materially increases an existing
vessel's harvesting capacity. The Program will not finance this project
cost. The Program will only refinance this project cost for a vessel
whose previous refurbishing cost has already been financed (or
otherwise paid). Refinancing this project cost is not inconsistent with
wise use, but financing it may be.
(3) Purchasing a used vessel or used fishery facility. The Program
will neither finance nor refinance this project cost (except for a used
vessel or fishery facility that the Program purchased and is
reselling), unless the used vessel or fishery facility will be
refurbished in the United States and will be a contributory project or
it will be used in an underutilized fishery.
(b) Every project, other than those specified in paragraphs (a) (1)
and (2) of this section, is consistent with wise use and every project,
other than those specifically precluded in paragraphs (a) (1) and (2)
of this section, may be financed, as well as refinanced.
Sec. 253.12 Guaranteed note, U.S. note, and security documents.
(a) Guaranteed note--(1) Principal. This may not exceed 80 percent
of actual cost, but may, in the Division's credit judgment, be less.
(2) Maturity. This may not exceed 25 years, but shall not exceed
the project property's useful life and may, in the Division's credit
judgment, be less.
(3) Interest rate. This may not exceed the amount the Division
deems reasonable.
(4) Prepayment penalty. The Division will allow a reasonable
prepayment penalty, but the guarantor will not guarantee a notemaker's
payment of it.
(5) Form. This will be the simple promissory note (with the
guarantee attached) the Division prescribes, promising only to pay
principal, interest, and prepayment penalty.
(6) Sole security. The guaranteed note and the guarantee will be
the noteholder's sole security.
(b) U.S. note and security documents--(1) Form. The U.S. note and
security documents will be in the form the Division prescribes.
(2) U.S. note. This exists to evidence the notemaker's actual and
contingent liability to the guarantor (contingent if the guarantor does
not pay the guaranteed note (including any portion of it), on the
notemaker's behalf or if the guarantor does not advance any other
amounts or incur any other expenses on the notemaker's behalf to
protect the U.S. or accommodate the notemaker; actual if, and to the
same monetary extent that, the guarantor does). Payment of the
guaranteed note by anyone but the guarantor will amortize the original
principal balance (and interest accruing on it) of the U.S. note to the
same extent that it amortizes the guaranteed note. The U.S note will,
among other things, contain provisions for adding to its principal
balance all amounts the Program advances, or expenses it incurs, to
protect the U.S. or accommodate the notemaker.
(3) Security documents. The Division will, at a minimum, require a
pledge of all project property (or adequate substitute collateral). The
Division will require such other security as it deems the circumstances
of each notemaker and project require to protect the U.S. All security
documents will secure the U.S. note. The security documents will, among
other things, contain provisions for adding to the U.S. note all
Program advances, expenditures, and expenses required to protect the
U.S. or accommodate the notemaker.
(4) Recourse. Significant Program reliance, as a secondary means of
repayment, on the net worths of parties other than the notemaker will
ordinarily require secured recourse against those net worths. Recourse
may be by a repayment guarantee or irrevocable letter of credit.
Ordinarily, the Division will require recourse against: All major
shareholders of a closely-held corporate notemaker, the parent
corporation of a subsidiary corporate notemaker without substantial
pledged assets other than the project property, and all major limited
partners. The Division may also require recourse against others it
deems necessary to protect the U.S. The principal parties in interest,
who ultimately stand most to benefit from the project, should
ordinarily be held financially accountable for the project's
performance. Where otherwise appropriate recourse is unavailable, the
conservatively projected net liquidating value of the notemaker's
assets pledged to the Program must, in the Division's credit judgment,
substantially exceed all projected Program exposure.
(c) Dual-use CCF. For a vessel, the Division may require annually
depositing some portion of the project property's net income into a
dual-use CCF. A dual-use CCF provides the normal CCF tax-deferral
benefits, but also both gives the Program control of CCF withdrawals
and recourse against CCF deposits and ensures an emergency refurbishing
reserve (tax-deferred) for project property.
Sec. 253.13 Ability and experience requirements.
A notemaker and the majority of its principals must generally have
the ability, experience, resources, character, reputation, and other
qualifications the
[[Page 19174]]
Division deems necessary for successfully operating the project
property and protecting the U.S. The Program will ordinarily not
provide guarantees: For venture capital purposes; to a notemaker whose
principals are all from outside the industry; or for a notemaker the
majority of whose principals cannot document successful industry
ability and experience of a duration, degree, and nature consistent
with protecting the U.S.
Sec. 253.14 Economic and financial requirements.
(a) Income and expense projections. The Division's conservative
income and expense projections for the project property's operation
must prospectively indicate net earnings that can service all debt,
properly maintain the project property, and protect the U.S. against
the industry's cyclical economics and other risks of loss.
(b) Working capital. The Division's conservative assessment of an
applicant's financial condition must indicate initial working capital
prospectively sufficient to provide for the project property to achieve
net earnings projections, fund all foreseeable contingencies, and
protect the U.S. At the Division's discretion, some portion of
projected working capital needs may be met by something other than
current assets minus current liabilities (i.e., by a line or letter of
credit, noncurrent assets readily capable of generating working
capital, a guarantor with sufficient financial resources, etc.).
(c) Audited financial statements. These will ordinarily be required
for any notemaker with large or financially extensive operations whose
financial condition the Division believes it cannot otherwise assess
with reasonable certainty.
(d) Consultant services. Infrequently, expert consulting services
may be necessary to help the Division assess a project's economic,
technical, or financial feasibility. The Division will select and
employ the necessary consultant, but require the applicant to reimburse
the Division. A subsequently approved application will not be closed
until the applicant reimburses the Division. This cost may, at the
Division's discretion, be included in a guaranteed note's amount. For a
declined application, the Division may reimburse itself from the
remaining 25 percent of the application fee.
Sec. 253.15 Miscellaneous.
(a) Applicant. Only the legal title holder of project property (or
the lessee of an appropriate long-term financing lease) may apply for a
guarantee. Applicants must submit an ``Application for Fisheries
Obligation Program Guarantee'' to the appropriate NMFS Regional
Financial Services Branch to be considered for a guaranteed loan.
(b) Investigation and approval. The Division shall do a due
diligence investigation of every application it accepts and determine
if, in the Division's sole judgment, the application is eligible and
qualified. Applications the Division deems ineligible or unqualified
will be declined. The Division will approve eligible and qualified
applications based on the applicability of the information obtained
during the application and investigation process to the programmatic
goals and financial requirements of the program and under terms and
conditions that, in the Division's sole discretion, protect the U.S.
The Division will state these terms and conditions in its approval in
principal letter.
(c) Insurance. All property and other risks shall be continuously
insured during the term of the U.S. note. Insurers must be acceptable
to the Division. Insurance must be in such forms and amounts and
against such risks as the Division deems necessary to protect the U.S.
Insurance must be endorsed to include the requirements the U.S., as
respects its interest only, deems necessary to protect the U.S. (e.g.,
the Program will ordinarily be an additional insured as well as the
sole loss payee for the amount of its interest; cancellation will
require 20 days' advance written notice; vessel seaworthiness will be
admitted, and the Program will be adequately protected against other
insureds' breaches of policy warranties, negligence, omission, etc.)
(d) Property inspections. The Division will require adequate
condition and valuation inspection of all property as the basis for
assessing the property's worth and suitability for guarantee. The
Division may also require these at specified periods during guarantee
life. These must be conducted by competent and impartial inspectors
acceptable to the Division. Inspection cost will be at an applicant's
expense. Those occurring before application approval may be included in
actual cost.
(e) Guarantee terms and conditions. The Division's approval in
principle letter shall specify the terms and conditions of the
guarantor's willingness to guarantee. These shall be incorporated in
closing documents that the Division prepares. Terms and conditions are
at the Division's sole discretion. An applicant's nonacceptance will
result in disqualification for guarantee.
(f) Noteholder. The Division will, as a gratuitous service, request
parties interested in investing in guaranteed notes to submit offers to
fund each prospective guaranteed note. The Division and the applicant
will, by mutual consent, choose the responsive bidder, which ordinarily
will be the prospective noteholder whose bid represents the lowest net
effective annual cost of capital. Until the Division has closed the
guarantee, arrangements between an applicant and a prospective
noteholder are a matter of private contract between them, and the
Program is not responsible to either for nonperformance by the other.
(g) Closing--(1) Approval in principle letters. Every closing will
be in strict accordance with a final approval in principle letter.
(2) Contracts. The guaranteed note, U.S. note, and security
documents will ordinarily be on standard Program forms that may not be
altered without Divisional approval. The Division will ordinarily
prepare all contracts, except certain pledges involving real property,
which will be prepared by each notemaker's attorney at the direction
and approval of the Division's attorney.
(3) Closing schedules. The Division will ordinarily close guarantee
transactions with minimal services from applicants' attorneys, except
where real property pledges or other matters appropriate for private
counsel are involved. Real property services required from an
applicant's attorney may include: Title search, mortgage and other
document preparation, execution and recording, escrow and disbursement,
and a legal opinion and other assurances. An applicant's attorney's
expense, and that of any other private contractor required, is for
applicant's account. Attorneys and other contractors must be
satisfactory to the Division. The Division will attempt to meet
reasonable closing schedules, but will not be liable for adverse
interest-rate fluctuations, loss of commitments, or other consequences
of being unable to meet an applicant's and a prospective noteholder's
closing schedule. These parties should work closely with the Division
to ensure a closing schedule the Division can meet.
Sec. 253.16 Fees.
(a) Application fee. The Division will not accept an application
without the application fee. Fifty percent of the application fee is
fully earned at application acceptance, and is not
[[Page 19175]]
refundable. The rest is fully earned when the Division issues an
approval in principal letter, and it is refundable only if the Division
declines an application or an applicant requests refund before the
Division issues an approval in principal letter.
(b) Guarantee fee. Each guarantee fee will be due in advance and
will be based on the guaranteed note's repayment provisions for the
prospective year. The first annual guarantee fee is due at guarantee
closing. Each subsequent one is due and payable on the guarantee
closing's anniversary date. Each is fully earned when due, and shall
not subsequently be refunded for any reason.
(c) Refinancing or assumption fee. This fee applies only to
refinancing or assuming existing guaranteed notes. It is due upon
application for refinancing or assuming a guaranteed note. It is fully
earned when due and shall be nonrefundable. The Division may waive a
refinancing or assumption fee's payment when the refinancing or
assumption's primary purpose is to protect the U.S.
(d) Where payable. Fees are payable by check made payable to
``NMFS/FSFF.'' Other than those collected at application or closing,
fees are payable by mailing checks to: U.S. Department of Commerce,
National Oceanic and Atmospheric Administration, National Marine
Fisheries Service, P.O. Box 73004, Chicago, Ill. 60673. To ensure
proper crediting, each check must include the official case number the
Division assigns to each guarantee.
Sec. 253.17 Demand and payment.
Every demand must be delivered in writing to the Division. Each
must include the noteholder's certified record of the date and amount
of each payment made on the guaranteed note and the manner of its
application. Should the Division not acknowledge receipt of a timely
demand, the noteholder must possess evidence of the demand's timely
delivery.
Sec. 253.18 Program operating guidelines.
The Division may issue Program operating guidelines, as the need
arises, governing national Program policy and administrative issues not
addressed by these rules.
Sec. 253.19 Default and liquidation.
Upon default of the security documents, the Division shall take
such remedial action (including, where appropriate, liquidation) as it
deems best able to protect the U.S.' interest.
Subpart C--Interjurisdictional Fisheries
Sec. 253.20 Definitions.
The terms used in this subpart have the following meanings:
Act means the Interjurisdictional Fisheries Act of 1986, Public Law
99-659 (Title III).
Adopt means to implement an interstate fishery management plan by
State action or regulation.
Commercial fishery failure means a serious disruption of a fishery
resource affecting present or future productivity due to natural or
undetermined causes. It does not include either:
(1) The inability to harvest or sell raw fish or manufactured and
processed fishery merchandise; or
(2) Compensation for economic loss suffered by any segment of the
fishing industry as the result of a resource disaster.
Enforcement agreement means a written agreement, signed and dated,
between a state agency and either the Secretary of the Interior or
Secretary of Commerce, or both, to enforce Federal and state laws
pertaining to the protection of interjurisdictional fishery resources.
Federal fishery management plan means a plan developed and approved
under the Magnuson Fishery Conservation and Management Act (16 U.S.C.
1801 et seq.).
Fisheries management means all activities concerned with
conservation, restoration, enhancement, or utilization of fisheries
resources, including research, data collection and analysis,
monitoring, assessment, information dissemination, regulation, and
enforcement.
Fishery resource means finfish, mollusks, and crustaceans, and any
form of marine or Great Lakes animal or plant life, including habitat,
other than marine mammals and birds.
Interjurisdictional fishery resource means:
(1) A fishery resource for which a fishery occurs in waters under
the jurisdiction of one or more states and the U.S. Exclusive Economic
Zone; or
(2) A fishery resource for which an interstate or a Federal fishery
management plan exists; or
(3) A fishery resource which migrates between the waters under the
jurisdiction of two or more States bordering on the Great Lakes.
Interstate Commission means a commission or other administrative
body established by an interstate compact.
Interstate compact means a compact that has been entered into by
two or more states, established for purposes of conserving and managing
fishery resources throughout their range, and consented to and approved
by Congress.
Interstate Fisheries Research Program means research conducted by
two or more state agencies under a formal interstate agreement.
Interstate fishery management plan means a plan for managing a
fishery resource developed and adopted by the member states of an
Interstate Marine Fisheries Commission, and contains information
regarding the status of the fishery resource and fisheries, and
recommends actions to be taken by the States to conserve and manage the
fishery resource.
Landed means the first point of offloading fishery resources.
NMFS Regional Director means the Director of any one of the five
National Marine Fisheries Service regions.
Project means an undertaking or a proposal for research in support
of management of an interjurisdictional fishery resource or an
interstate fishery management plan.
Research means work or investigative study, designed to acquire
knowledge of fisheries resources and their habitat.
Secretary means the Secretary of Commerce or his/her designee.
State means each of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, or the Commonwealth of the Northern Mariana Islands.
State Agency means any department, agency, commission, or official
of a state authorized under the laws of the State to regulate
commercial fisheries or enforce laws relating to commercial fisheries.
Value means the monetary worth of fishery resources used in
developing the apportionment formula, which is equal to the price paid
at the first point of landing.
Volume means the weight of the fishery resource as landed, at the
first point of landing.
Sec. 253.21 Apportionment.
(a) Apportionment formula. The amount of funds apportioned to each
state is to be determined by the Secretary as the ratio which the
equally weighted average of the volume and value of fishery resources
harvested by domestic commercial fishermen and landed within such state
during the 3 most recent calendar years for which data satisfactory to
the Secretary are available bears to the total equally weighted average
of the volume and value of all fishery resources harvested by domestic
commercial fishermen and
[[Page 19176]]
landed within all of the states during those calendar years.
(1) The equally weighted average value is determined by the
following formula:
[GRAPHIC] [TIFF OMITTED] TR01MY96.004
[GRAPHIC] [TIFF OMITTED] TR01MY96.005
[GRAPHIC] [TIFF OMITTED] TR01MY96.006
(2) Upon appropriation of funds by Congress, the Secretary will
take the following actions:
(i) Determine each state's share according to the apportionment
formula.
(ii) Certify the funds to the respective NMFS Regional Director.
(iii) Instruct NMFS Regional Directors to promptly notify states of
funds' availability.
(b) No state, under the apportionment formula in paragraph (a) of
this section, that has a ratio of one-third of 1 percent or higher may
receive an apportionment for any fiscal year that is less than 1
percent of the total amount of funds available for that fiscal year.
(c) If a State's ratio under the apportionment formula in paragraph
(b) of this section is less than one-third of 1 percent, that state may
receive funding if the state:
(1) Is signatory to an interstate fishery compact;
(2) Has entered into an enforcement agreement with the Secretary
and/or the Secretary of the Interior for a fishery that is managed
under an interstate fishery management plan;
(3) Borders one or more of the Great Lakes;
(4) Has entered into an interstate cooperative fishery management
agreement and has in effect an interstate fisheries management plan or
an interstate fisheries research program; or
(5) Has adopted a Federal fishery management plan for an
interjurisdictional fishery resource.
(d) Any state that has a ratio of less than one-third of 1 percent
and meets any of the requirements set forth in paragraphs (c) (1)
through (5) of this section may receive an apportionment for any fiscal
year that is not less than 0.5 percent of the total amount of funds
available for apportionment for such fiscal year.
(e) No state may receive an apportionment under this section for
any fiscal year that is more than 6 percent of the total amount of
funds available for apportionment for such fiscal year.
(f) Unused apportionments. Any part of an apportionment for any
fiscal year to any state:
(1) That is not obligated during that year;
(2) With respect to which the state notifies the Secretary that it
does not wish to receive that part; or
(3) That is returned to the Secretary by the state, may not be
considered to be appropriated to that state and must be added to such
funds as are appropriated for the next fiscal year. Any notification or
return of funds by a state referred to in this section is irrevocable.
Sec. 253.22 State projects.
(a) General--(1) Designation of state agency. The Governor of each
state shall notify the Secretary of which agency of the state
government is authorized under its laws to regulate commercial
fisheries and is, therefore, designated receive financial assistance
awards. An official of such agency shall certify which official(s) is
authorized in accordance with state law to commit the state to
participation under the Act, to sign project documents, and to receive
payments.
(2) States that choose to submit proposals in any fiscal year must
so notify the NMFS Regional Director before the end of the third
quarter of that fiscal year.
(3) Any state may, through its state agency, submit to the NMFS
Regional Director a completed NOAA Grants and Cooperative Agreement
Application Package with its proposal for a project, which may be
multiyear. Proposals must describe the full scope of work,
specifications, and cost estimates for such project.
(4) States may submit a proposal for a project through, and request
payment to be made to, an Interstate Fisheries Commission. Any payment
so made shall be charged against the apportionment of the appropriate
state(s). Submitting a project through one of the Commissions does not
remove the matching funds requirement for any state, as provided in
paragraph (c) of this section.
(b) Evaluation of projects. The Secretary, before approving any
proposal for a project, will evaluate the proposal as to its
applicability, in accordance with 16 U.S.C. 4104(a)(2).
(c) State matching requirements. The Federal share of the costs of
any project conducted under this subpart, including a project submitted
through an Interstate Commission, cannot exceed 75 percent of the total
estimated cost of the project, unless:
(1) The state has adopted an interstate fishery management plan for
the fishery resource to which the project applies; or
(2) The state has adopted fishery regulations that the Secretary
has determined are consistent with any Federal fishery management plan
for the species to which the project applies, in which case the Federal
share cannot exceed 90 percent of the total estimated cost of the
project.
(d) Financial assistance award. If the Secretary approves or
disapproves a proposal for a project, he or she will promptly give
written notification, including, if disapproved, a detailed explanation
of the reason(s) for the disapproval.
(e) Restrictions. (1) The total cost of all items included for
engineering, planning, inspection, and unforeseen contingencies in
connection with any works to be constructed as part of such a proposed
project shall not exceed 10 percent of the total cost of such works,
and shall be paid by the state as a part
[[Page 19177]]
of its contribution to the total cost of the project.
(2) The expenditure of funds under this subpart may be applied only
to projects for which a proposal has been evaluated under paragraph (b)
of this section and approved by the Secretary, except that up to
$25,000 each fiscal year may be awarded to a state out of the state's
regular apportionment to carry out an ``enforcement agreement.'' An
enforcement agreement does not require state matching funds.
(f) Prosecution of work. All work must be performed in accordance
with applicable state laws or regulations, except when such laws or
regulations are in conflict with Federal laws or regulations such that
the Federal law or regulation prevails.
Sec. 253.23 Other funds.
(a) Funds for disaster assistance. (1) The Secretary shall retain
sole authority in distributing any disaster assistance funds made
available under section 308(b) of the Act. The Secretary may distribute
these funds after he or she has made a thorough evaluation of the
scientific information submitted, and has determined that a commercial
fishery failure of a fishery resource arising from natural or
undetermined causes has occurred. Funds may only be used to restore the
resource affected by the disaster, and only by existing methods and
technology. Any fishery resource used in computing the states' amount
under the apportionment formula in Sec. 253.21(a) will qualify for
funding under this section. The Federal share of the cost of any
activity conducted under the disaster provision of the Act shall be
limited to 75 percent of the total cost.
(2) In addition, pursuant to section 308(d) of the Act, the
Secretary is authorized to award grants to persons engaged in
commercial fisheries, for uninsured losses determined by the Secretary
to have been suffered as a direct result of a fishery resource
disaster. Funds may be distributed by the Secretary only after notice
and opportunity for public comment of the appropriate limitations,
terms, and conditions for awarding assistance under this section.
Assistance provided under this section is limited to 75 percent of an
uninsured loss to the extent that such losses have not been compensated
by other Federal or State programs.
(b) Funds for interstate commissions. Funds authorized to support
the efforts of the three chartered Interstate Marine Fisheries
Commissions to develop and maintain interstate fishery management plans
for interjurisdictional fisheries will be divided equally among the
Commissions.
Sec. 253.24 Administrative requirements.
Federal assistance awards made as a result of this Act are subject
to all Federal laws, Executive Orders, Office of Management and Budget
Circulars as incorporated by the award; Department of Commerce and NOAA
regulations; policies and procedures applicable to Federal financial
assistance awards; and terms and conditions of the awards.
PART 255--[REMOVED]
4. Under the authority of 46 U.S.C. 1271-1279, part 255 is removed.
[FR Doc. 96-10664 Filed 4-30-96; 8:45 am]
BILLING CODE 3510-22-P
