2010-14550. Fisheries in the Western Pacific; Community Development Program Process

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed rule would establish requirements and procedures for soliciting, reviewing, and approving community development plans for access to western Pacific fisheries. The intent of this proposed rule is to promote the participation of island communities in fisheries that they have traditionally depended upon, but may not have the capabilities to support continued and substantial participation in, possibly due to economic, regulatory, or other constraints.

DATES:

Comments on the proposed rule must be received by July 20, 2010.

ADDRESSES:

Comments on this proposed rule, identified by 0648-AX76, may be sent to either of the following addresses:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov; or
• Mail: Mail written comments to Michael D. Tosatto, Acting Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.

Instructions: Comments must be submitted to one of the above two addresses to ensure that the comments are received, documented, and considered by NMFS. Comments sent to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted to www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

The Western Pacific Fishery Management Council (Council) prepared amendments to the fishery ecosystem plans (FEP) for American Samoa, Hawaii, Marianas, and western Pacific Pelagics. These amendments contain background information on the issue. The amendments and proposed regulations, which are identical for all FEPs, are available from www.regulations.gov, and from the Council, 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel [phone], fax [phone], www.wpcouncil.org.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Michael D. Tosatto (see ADDRESSES) and by e-mail to [e-mail], or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT:

Jarad Makaiau, NMFS PIR, Sustainable Fisheries, 808-944-2108.

SUPPLEMENTARY INFORMATION:

This document is also accessible at www.gpoaccess.gov/​fr.

Section 305(i)(2) of the Magnuson-Stevens Act authorizes the Council and the Secretary of Commerce (Secretary), through NMFS, to establish a western Pacific community development program for any fishery under the authority of the Council and NMFS. The intent of the program is to provide western Pacific communities access to fisheries that they have traditionally depended upon, but may not have the capabilities to support continued and substantial participation in, possibly due to economic, regulatory, or other barriers.

In 2002, NMFS published the eligibility criteria for participating in the western Pacific community development program (67 FR 18512; April 16, 2002), but did not establish a mechanism to solicit and review development plans under the program. To address this issue, the Council developed and submitted to NMFS for review, amendments to the American Samoa, Hawaii, Marianas, and western Pacific Pelagic FEPs to establish this mechanism. The amendments are identical for each FEP.

This proposed rule would codify the eligibility criteria, as previously published (67 FR 18512; April 16, 2002), for participating in the program. To be eligible, a community must:

1. Be located in American Samoa, Guam, Hawaii, or the Northern Mariana Islands (collectively, the western Pacific);

2. Consist of community residents descended from aboriginal people indigenous to the western Pacific area who conducted commercial or subsistence fishing using traditional fishing practices in the waters of the western Pacific;

3. Consist of individuals who reside in their ancestral homeland;

4. Have knowledge of customary practices relevant to fisheries of the western Pacific;

5. Have a traditional dependence on fisheries of the western Pacific;

6. Are experiencing economic or other barriers or constraints that prevent full participation in the western Pacific fisheries and, in recent years, have not had harvesting, processing or marketing capability sufficient to support substantial participation in fisheries in the area; and

7. Develop and submit a community development plan to the Council and NMFS.

This proposed rule would require a community development plan to contain:

1. A statement of the purpose and goals of the plan;

2. A description of, and justification for, the proposed fishing activity;

3. The location of the proposed fishing activity;

4. The species to be harvested, directly and incidentally;

5. The gear type(s) to be used;

6. The frequency and duration of the proposed fishing activity; and

7. A statement describing the degree of involvement by the indigenous community members including the name, address, telephone and other contact information of each person who would conduct the proposed fishing activity, and a description of how the community and or its members meet each of the eligibility criteria.

If a vessel is to be used by the community to conduct fishing activities, the community development plan must include the vessel name and official number (USCG documentation, state, territory, or other registration number), length, displacement, fish holding capacity, any valid federal fishing permit number, and the name and contact information of the owner(s) and operator(s).

The proposed rule would require the Council to review each plan to ensure that it meets the intent of Section 305(i)(2) of the Magnuson-Stevens Act and contains all required information. If the Council finds that these requirements are met, the Council would then forward the plan to the NMFS Regional Administrator for review.

This proposed rule would require the Regional Administrator to review each plan to ensure the plan is consistent with the FEPs, the Magnuson-Stevens Act, and other applicable laws. NMFS would then publish a notice in the Federal Register to solicit public comment on the community development plan and any associated environmental review documents.

Within 90 days after the close of the public comment period for the plan, the Regional Administrator would be required to notify the applicant in writing of the decision to approve or disapprove the plan. If the plan is approved, the NMFS Regional Administrator would publish a notice in the Federal Register describing the plan's authorized activities. The Regional Administrator may attach limiting terms and conditions to the authorization to ensure proper management and monitoring of the fishing activity, including, but not limited to, catch and trip limits, times and places where fishing may or may not be conducted, vessel monitoring system, observers, and/or reporting requirements.

To be considered, comments on this proposed rule must be received by July 20, 2010, not postmarked or otherwise transmitted by that date.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the fishery ecosystem plans for American Samoa, Hawaii, the Marianas, and western Pacific pelagic fisheries, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

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. The analysis follows:

The Council has proposed to amend the FEPs for American Samoa, Hawaii, Marianas, and western Pacific pelagics to establish a process to solicit, review, and implement community development plans submitted by eligible western Pacific communities. The Council and NMFS would review each plan and, if it meets all requirements, NMFS would authorize the plan. The proposed action is intended to promote participation in fisheries that communities have traditionally depended upon, but may not have capabilities to support continued and substantial participation in, possibly due to economic, regulatory, or other constraints. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. This proposed rule does not duplicate, overlap, or conflict with other Federal rules. The proposed rule would only establish a procedure for the solicitation, review, and implementation of plans under the western Pacific community development program. This procedure is not expected to result in any significant economic impact on any western Pacific community. If subsequent rulemaking to implement approved plans directly impacts the economic profitability, or proxy thereof, of a community with an approved community development plan, NMFS will prepare an IRFA for that specific action.

As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains a new collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval.

Public reporting burden for developing and submitting a development plan is estimated to average six hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Public comment is sought regarding whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility, the accuracy of the burden estimate, ways to enhance the quality, utility, and clarity of the information collected, and ways to minimize the burden of the collection of information including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Michael D. Tosatto (see ADDRESSES), and by email to [e-mail] or by fax to 202-395-7285.

Because approved plans may be subject to additional conditions, this proposed rule also contains collection-of-information requirements subject to the PRA that have been previously approved by OMB. NMFS estimates that it may receive and process up to five (5) community development plan proposals each year. Therefore, the additional estimated burden on western Pacific community development plan respondents would not exceed the currently-approved burden estimates for the existing PRA collections listed below:

(1) Approved under 0648-0214, 0648-0577, 0648-0584, 0648-0586, and 0649-0589. (a) PIR logbook family of forms estimated at 5 minutes (min) per reporting action; (b) pre-trip and post-landing notifications estimated at 5 min per reporting action; (c) experimental fishing reports estimated at 4 hours (hr) per reporting action; (d) sales and transshipment reports estimated at 5 min per reporting action; (e) report on gear left at sea estimated at 5 min per reporting action; (f) claims for reimbursement for lost fishing time estimated at 4 hr per claim; (g) request for pelagics area closure exemption estimated at 1 hr per request; and (h) observer placement meetings estimated at 1 hr per reporting action. (§§ 665.14, 665.17, 665.105, 665.144, 665.145, 665.205, 665.207, 665.244, 665.247, 665.407, 665.444, 665.445, 665.606, 665.644, 665.645, 665.803, and 665.808.)

(2) Approved under 0648-0360, 0648-0361, 0648-0584, 0648-0586, and 0648-0589. PIR gear marking and vessel identification (a) estimated at 45 min to 1 hr 15 min per vessel for vessel identification, and (b) estimated at 2 min for each gear marking. (§§ 665.16, 665.128, 665.228, 665.246, 665.428, 665.628, and 665.804.)

(3) Approved under 0648-0441, 0648-0519, and 0648-0584. PIR vessel monitoring system (a) installation, estimated at 4 hr per reporting action; (b) repair and maintenance, estimated at 2 hr per reporting action; and (c) hourly automated position reports, estimated at 24 sec per day. (§ 665.19.)

(4) Approved under 0648-0456. PIR seabird interaction reporting (a) at-sea notification, estimated at 1 hr per reporting action; (b) reporting on recovery data form, estimated at 1 hr per reporting action; and (c) specimen tagging, estimated at 30 min per reporting action. (§ 665.815.)

(5) Approved under 0648-0462. PIR coral reef logbook reporting (a) at-sea notification, estimated at 3 min per reporting action; (b) logbook reporting, estimated at 30 min hr per reporting action; and (c) transshipment reports, estimated at 15 min per reporting action. (§§ 665.14, 665.126, 665.226, and 665.426.)

(6) Approved under 0648-0463. PIR coral reef special permit (a) application, estimated at 2 hr per application; and (b) special permit appeals, estimated at 3 hr per appeal. (§§ 665.124, 665.224, 665.424, and 665.624.)

(7) Approved under 0648-0490, 0648-0577, 0648-0584, 0648-0586, and 0649-0589: (a) PIR permit family of forms estimated at 30 min hr per permit action; (b) experimental fishing permits, estimated at 2 hr per application; and (c) appeals from permit actions estimated at 2 hr per permit appeal. (§§ 665.13, 665.17, 665.142, 665.162, 665.203, 665.242, 665.262, 665.404, 665.442, 665.462, 665.603, 665.642, 665.662, 665.801, and 665.807.)

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 665

• Community Development
• Fisheries
• Fishing
• Western and central Pacific

Dated: June 9, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows:

PART 665—FISHERIES IN THE WESTERN PACIFIC

l. The authority citation for part 665 continues to read as follows:

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

2. In part 665, add a new § 665.20 to subpart A read as follows:

§ 665.20

Western Pacific community development program.

(a) General. In accordance with the criteria and procedures specified in this section, the Regional Administrator may authorize the direct or incidental harvest of management unit species that would otherwise be prohibited by this part.

(b) Eligibility. To be eligible to participate in the Western Pacific community development program, a community must meet the following criteria:

(1) Be located in American Samoa, Guam, Hawaii, or the Northern Mariana Islands (collectively, the western Pacific);

(2) Consist of community residents descended from aboriginal people indigenous to the western Pacific area who conducted commercial or subsistence fishing using traditional fishing practices in the waters of the western Pacific;

(3) Consist of individuals who reside in their ancestral homeland;

(4) Have knowledge of customary practices relevant to fisheries of the western Pacific;

(5) Have a traditional dependence on fisheries of the western Pacific;

(6) Are currently experiencing economic or other constraints that have prevented full participation in the western Pacific fisheries and, in recent years, have not had harvesting, processing or marketing capability sufficient to support substantial participation in fisheries in the area; and

(7) Develop and submit a community development plan to the Council and the NMFS that meets the requirements in paragraph (c) of this section.

(c) Community development plan. An eligible community seeking access to a fishery under the authority of the Council and NMFS must submit to the Council a community development plan that includes, but is not limited to, the following information:

(1) A statement of the purposes and goals of the plan.

(2) A description and justification for the specific fishing activity being proposed, including:

(i) Location of the proposed fishing activity.

(ii) Management unit species to be harvested, and any potential bycatch.

(iii) Gear type(s) to be used.

(iv) Frequency and duration of the proposed fishing activity.

(3) A statement describing the degree of involvement by the indigenous community members, including the name, address, telephone and other contact information of each individual conducting the proposed fishing activity.

(4) A description of how the community and or its members meet each of the eligibility criteria in paragraph (b) of this section.

(5) If a vessel is to be used by the community to conduct fishing activities, for each vessel:

(i) Vessel name and official number (USCG documentation, state, territory, or other registration number).

(ii) Vessel length overall, displacement, and fish holding capacity.

(iii) Any valid federal fishing permit number(s).

(iv) Name, address, and telephone number of the vessel owner(s) and operator(s).

(d) Council review. The Council will review each community development plan to ensure that it meets the intent of the Magnuson-Stevens Act and contains all required information. The Council may consider advice of its advisory panels in conducting this review. If the Council finds the community development plan is complete, it will transmit the plan to the Regional Administrator for review.

(e) Agency review and approval. (1) Upon receipt of a community development plan from the Council, the Regional Administrator will review the plan for consistency with the FEPs, Magnuson-Stevens Act, and other applicable laws. The Regional Administrator may request from the applicant additional information necessary to make the determinations pursuant to this section and other applicable laws before proceeding with the review pursuant to paragraph (e)(2) of this section.

(2) If the Regional Administrator determines that a plan contains the required information and is consistent with the FEPs, Magnuson-Stevens Act, and other applicable laws, NMFS will publish a notice in the Federal Register to solicit public comment on the proposed plan and any associated environmental review documents. The notice will include the following:

(i) A description of the fishing activity to be conducted.

(ii) The current utilization of domestic annual harvesting and processing capacity (including existing experimental harvesting, if any) of the target, incidental, and bycatch species.

(iii) A summary of any regulations that would otherwise prohibit the proposed fishing activity.

(iv) Biological and environmental information relevant to the plan, including appropriate statements of environmental impacts on target and non-target stocks, marine mammals, and threatened or endangered species.

(3) Within 90 days from the end of the comment period on the plan, the Regional Administrator will notify the applicant in writing of the decision to approve or disapprove the plan.

(4) If disapproved, the Regional Administrator will provide the reasons for the plan's disapproval and provide the community with the opportunity to modify the plan and resubmit it for review. Reasons for disapproval may include, but are not limited to, the following:

(i) The applicant failed to disclose material information or made false statements related to the plan.

(ii) The harvest would contribute to overfishing or would hinder the recovery of an overfished stock, according to the best scientific information available.

(iii) The activity would be inconsistent with an FEP or other applicable law.

(iv) The activity would create a significant enforcement, monitoring, or administrative problem, as determined by the Regional Administrator.

(5) If approved, the Regional Administrator will publish a notice of the authorization in the Federal Register, and may attach limiting terms and conditions to the authorization including, but not limited to, the following:

(i) The maximum amount of each management unit species and potential bycatch species that may be harvested and landed during the term of the authorization.

(ii) The number, sizes, names, identification numbers, and federal permit numbers of the vessels authorized to conduct fishing activities.

(iii) Type, size, and amount of gear used by each vessel, including trip limits.

(iv) The times and places where fishing may or may not be conducted.

(v) Notification, observer, vessel monitoring, and reporting requirements.

(f) Duration. Unless otherwise specified, and unless revoked, suspended, or modified, a plan may be effective for no longer than five years.

(g) Transfer. Plans authorized under this section are not transferable or assignable.

(h) Sanctions. The Regional Administrator may revoke, suspend or modify a community development plan in the case of failure to comply with the terms and conditions of the plan, any other applicable provision of this part, the Magnuson-Stevens Act, or other applicable laws.

(i) Program review. NMFS and the Council will periodically review and assess each plan. If fishery, environmental, or other conditions have changed such that the plan's goals or requirements are not being met, or the fishery has become in an overfished state or overfishing is occurring, the Regional Administrator may revoke, suspend, or modify the plan.