[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Rules and Regulations]
[Pages 39017-39020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18642]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 600
[Docket No. 981228324-9168-02; I.D. 121697A]
RIN 0648-AJ70
Magnuson-Stevens Fishery Conservation and Management Act;
Amendment of Foreign Fishing Regulations; OMB Control Numbers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to amend the foreign fishing
regulations to provide for the issuance of certain transshipment
permits under the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act
(SFA), and to update permit application and issuance procedures
applicable to all types of foreign fishing permits issued under the
Magnuson-Stevens Act.
DATES: Effective August 20, 1999.
FOR FURTHER INFORMATION CONTACT: Robert A. Dickinson, 301-713-2276.
SUPPLEMENTARY INFORMATION: Regulations at 50 CFR part 600, subpart F,
govern foreign fishing under the Magnuson-Stevens Act (16 U.S.C. 1801
et seq.). Among other things, the regulations establish procedures for
permit application and issuance under section 204(b) of the Magnuson-
Stevens Act. Under these regulations, foreign fishing vessels may be
permitted to fish in the U.S. Exclusive Economic Zone (EEZ). Until the
SFA (Pub. L. 104-297) established section 204(d) of the Magnuson-
Stevens Act, all foreign fishing applications were submitted under
section 204(b) of the Magnuson-Stevens Act.
Section 204(d) of the Magnuson-Stevens Act authorizes the Assistant
Administrator for Fisheries (AA) to issue transshipment permits
authorizing foreign vessels to engage in fishing consisting solely of
transporting fish or fish products at sea from a point within the EEZ
or, with the concurrence of a state, within the boundaries of that
state, to a point outside the United States. Issuance of a permit to a
foreign vessel to receive fish or fish products at sea within the
boundaries of a state is subject to certain conditions and restrictions
and contingent upon the concurrence of the involved state.
Shortly after passage of the SFA, it was necessary for NMFS to
issue permits within a short timeframe to certain Canadian vessels
under section 204(d) of the Magnuson-Stevens Act. It was determined at
the time that NMFS had the authority to issue the permits without first
amending the existing foreign fishing regulations to specifically
provide the procedures for permit application and issuance under
section 204(d). After obtaining an initial ``worksheet'' adjustment for
the collection of 204(d) application information from the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA),
NMFS issued permits to the Canadian vessels and has subsequently issued
several other permits under section 204(d) of the Magnuson-Stevens Act.
Although the determination was made that NMFS could issue 204(d)
permits before amending the foreign fishing regulations to establish
procedures for permit application and issuance, the SFA implementation
plan anticipated the eventual amendment of the regulations to establish
such procedures. To this end, NMFS published a proposed rule on April
5, 1999 (64 FR 16414). The proposed rule discussed a number of
revisions to be made to the foreign fishing regulations at 50 CFR part
600, subpart F, to provide for permit application and issuance
procedures under section 204(d) of the Magnuson-Stevens Act.
Additionally, several revisions to the foreign fishing regulations were
proposed to update provisions applicable to all types of foreign
fishing permits issued under the
[[Page 39018]]
Magnuson-Stevens Act. Readers should refer to the proposed rule for
information on the specific revisions.
One individual submitted comments on the proposed rule. The
comments are summarized as follows:
Comment 1: During 1998 certain U.S. vessels missed ``the
opportunity to supply fish'' to foreign processor vessels during a
joint venture (JV) for Atlantic mackerel because the freezers of the
foreign processing vessels were filled to capacity with processed
product while the vessels were ``waiting for refrigerated cargo vessels
to be permitted'' under section 204(d) of the Magnuson-Stevens Act.
Response: All permits issued under section 204(d) of the Magnuson-
Stevens Act in support of the JV in question were issued within 14 to
21 days of receipt of the applications. NMFS has always carried out its
role in permit processing under the Magnuson-Stevens Act with as much
expediency as possible. However, given the multi-agency review process,
the vagaries of fishing, weather and trade, and the resultant inability
of applicants to know precisely when they will need to transship, NMFS
cannot guarantee there will not be occasions when applicants are ready
to transship before NMFS has had time to properly process an
application and, if appropriate, issue a permit.
Comment 2: Two weeks is usually as far in advance as it is possible
to contract with cargo vessel operators for a specific vessel to
transship, yet under the proposed regulations applicants will have to
wait for a 90 day process to obtain a permit for a transshipment
vessel.
Response: The 90 day period is not an absolute requirement, but
rather a limit of time to allow for application processing in complex
situations. Most transshipment applications, whether submitted under
section 204(d) or 204(b) of the Magnuson-Stevens Act, are processed
within 14 to 21 days of receipt of an application. While the mere
submission of an application does not guarantee issuance of a permit,
NMFS expects that most transshipment permits issued will be issued
within a similar timeframe in the future, particularly in cases where
the applicant vessels will be supporting foreign or domestic processors
engaged in previously approved activities. NMFS realizes this time
period is still potentially longer than the commenter reports is
usually possible for advance notice. However, while NMFS is
appreciative of the possible difficulties some applicants may face in
locating a transport vessel far enough in advance of an anticipated
transshipping date, given the time necessary for NMFS to make all the
statutorily required determinations identified at section 204(d)(3) of
the Magnuson-Stevens Act, NMFS cannot guarantee that issuance of
permits will always be possible within an applicant's desired
timeframe.
Comment 3: There are no U.S. refrigerated cargo transport vessels
operating on the East Coast of the United States available to transship
and transport JV product; therefore, the proposed application
processing procedures, including the intention of NMFS to publish a
notice of receipt of each application in the Federal Register, will
create unnecessary delays in the permitting process.
Response: Section 204(d)(3)(D) of the Magnuson-Stevens Act provides
that an application may not be approved until a determination is made
that ``no owner or operator of a vessel of the United States which has
adequate capacity to perform the transportation for which the
application is submitted has indicated * * * an interest in performing
the transportation at fair and reasonable rates.'' Even assuming there
are no U.S. refrigerated cargo transports of the type needed to support
a JV currently operating on the East Coast, this may not always be the
case. Thus, NMFS believes that publishing a notice of receipt of an
application in the Federal Register is the best means of making the
determination in accordance with section 204(d)(3)(D) of the Magnuson-
Stevens Act because publication in the Federal Register provides
official notice to all interested parties. NMFS must also consult with
multiple agencies during the processing of each application. NMFS
believes the proposed procedures will enable it to process applications
in the most expedient manner possible and in compliance with all
applicable requirements of the Magnuson-Stevens Act. Accordingly, NMFS
believes the proposed processing procedures are appropriate and should
not be changed.
Comment 4: Clarification is requested as to whether applications
under section 204(d) of the Magnuson-Stevens Act must be submitted by
official representatives of nations having a Governing International
Fishery Agreement (GIFA) with the United States.
Response: Applications for permits under section 204(d) of the
Magnuson-Stevens Act may be submitted by any person. The applicant
vessel does not have to be of a nation that has a GIFA with the United
States.
In summary, NMFS does not believe any changes are necessary to the
regulations as proposed on April 5, 1999 (64 FR 16414). The regulations
as proposed are necessary to properly administer foreign fishing under
the applicable provisions of the Magnuson-Stevens Act. Further, nothing
in the revised foreign fishing regulations precludes issuance of
transshipment permits submitted under section 204(d) of the Magnuson-
Stevens Act within 14 to 21 days of receipt of an application.
Accordingly, the regulations as proposed are adopted as final.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and 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. No comments were received regarding this certification.
As a result, a regulatory flexibility analysis was not prepared.
Notwithstanding any other provision of the 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 Office of Management and Budget (OMB) control number.
As noted in the proposed rule, this action directly relates to two
collection-of-information requirements subject to the PRA: application
information and vessel reporting requirements. This action is also
indirectly related to another collection of information under the PRA
which was recently assigned a new OMB control number for administrative
purposes: vessel identification requirements. Additionally, NMFS is
updating a reference to a collection of information under the PRA not
directly related to this action which, for administrative purposes, was
recently assigned a new OMB control number: gear identification. The
collections of information, all of which have been approved by OMB, are
as follows:
(1) Approved under OMB control number 0648-0089--Application form
[[Page 39019]]
for foreign fishing permits, including those to be issued under section
204(d) of the Magnuson-Stevens Act; estimated at 45 minutes per
response.
(2) Approved under OMB control number 0648-0075--Reporting by
vessels operating under foreign fishing permits, including those issued
under section 204(d) of the Magnuson-Stevens Act; estimated at 6
minutes per response.
(3) Approved under OMB control number 0648-0356--Vessel
identification requirements for vessels operating under foreign fishing
permits, including those issued under section 204(d) of the Magnuson-
Stevens Act; estimated at 45 minutes per response.
(4) Approved under OMB control number 0648-0354--Gear
identification requirements for vessels operating under foreign fishing
permits issued under section 204(b) of the Magnuson Stevens Act;
estimated at 1.25 hours per response. This collection of information
was recently renewed for administrative purposes only; at the present
time there are no species available for foreign directed fishing.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 600
Fisheries, Fishing, Foreign relations, Intergovernmental relations.
Dated: July 15, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR Chapter IX and 50
CFR Chapter VI 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, in paragraph (b), in the table, under 50 CFR, the
entry for Sec. 600.503, is amended by removing the control numbers ``-
0305 and -0306'' and adding the control numbers ``-0354 and -0356'' in
their place to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
* * * * *
50 CFR
* * * * *
Sec. 600.503 -0354 and -0356
* * * * *
50 CFR Chapter VI
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
3. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
4. In Sec. 600.501, paragraph (c) introductory text, and paragraphs
(d)(1), (d)(4), (e) and (k) are revised, and paragraph (c)(10) is added
to read as follows:
Sec. 600.501 Vessel permits.
* * * * *
(c) Activity codes. Permits to fish under this subpart may be
issued by the Assistant Administrator for the activities described in
this paragraph, but the permits may be modified by regulations of this
subpart and by the conditions and restrictions attached to the permit
(see paragraphs (e)(1)(v) and (l) of this section). The Assistant
Administrator may issue a permit, as appropriate, for one or more of
the activity codes listed. Only vessels of nations having a GIFA with
the United States may be issued permits for activity codes 1 through 9.
A GIFA is not required for a vessel to be issued a permit for activity
code 10. The activity codes are described as follows:
* * * * *
(10) Activity Code 10. Transshipping at sea for the purpose of
transporting fish or fish products from a point within the EEZ or, with
the concurrence of a state, within the boundaries of that state, to a
point outside the United States.
(d) Application. (1) Applications for FFV permits authorizing
activity codes 1 through 9 must be submitted by an official
representative of a foreign nation to the DOS. Applications for permits
authorizing activity codes 1 through 9 are available from, and should
be submitted to, DOS, OES/OMC, Washington, DC 20520. Applications for
FFV permits authorizing activity code 10 may be submitted by any person
to the Assistant Administrator. Applications for permits authorizing
activity code 10 are available from NMFS, Attn: International Fisheries
Division, 1315 East West Highway, Silver Spring, Maryland 20910. All
applicants should allow 90 days for review and comment by the public,
involved governmental agencies, and appropriate Councils and for
processing before the anticipated date to begin fishing. The permit
application fee must be paid at the time of application according to
Sec. 600.518.
* * * * *
(4) Each applicant may request to substitute one FFV for another of
the same flag by submitting a new application form and a short
explanation of the reason for the substitution to the appropriate
address listed at paragraph (d)(1) of this section. Each substitution
is considered a new application, and a new application fee must be
paid. NMFS will promptly process an application for a vessel replacing
a permitted FFV that is disabled or decommissioned, once the
appropriate Council(s) and governmental agencies have been notified of
the substituted application.
(e) Issuance. (1) Permits may be issued to an FFV by the Assistant
Administrator after--
(i) The Assistant Administrator determines that the fishing
described in the application will meet the requirements of the
Magnuson-Stevens Act and approves the permit application.
(ii) The applicant has paid the fees and provided any assurances
required by the Secretary in accordance with the provisions of
Sec. 600.518.
(iii) The applicant has appointed an agent.
(iv) The applicant has identified a designated representative.
(v) The applicant has accepted the general ``conditions and
restrictions'' of receiving permits, as required by section 204(b)(7)
of the Magnuson-Stevens Act, and any ``additional restrictions''
attached to the permit for the conservation and management of fishery
resources or for the prevention of significant impairment of the
national defense or security interests.
(2) The DOS will provide permits for activity codes 1 through 9 to
the official representative of the applicant foreign nation. The
Assistant Administrator will provide permits for activity code 10
directly to the applicant.
(3) An approved permit will contain--
(i) The name and IRCS of the FFV and its permit number. (ii) The
permitted fisheries and/or activity codes.
(iii) The date of issuance and expiration date, if other than
December 31.
[[Page 39020]]
(iv) All conditions and restrictions, and any additional
restrictions and technical modifications appended to the permit.
(4) Permits are not issued for boats that are launched from larger
vessels. Any enforcement action that results from the activities of a
launched boat will be taken against the permitted vessel.
* * * * *
(k) Change in application information. The applicant must report,
in writing, any change in the information supplied under paragraph (d)
of this section to the Assistant Administrator within 15 calendar days
after the date of the change. Failure to report a change in the
ownership from that described in the current application within the
specified time frame voids the permit, and all penalties involved will
accrue to the previous owner.
* * * * *
5. In Sec. 600.502, paragraph (a) is revised, and a new paragraph
(h) is added to read as follows:
Sec. 600.502 Vessel reports.
(a) The operator of each FFV must report the FFV's activities to
the USCG and NMFS as specified in this section.
* * * * *
(h) Alternative reporting procedures. As an alternative to the use
of the specific procedures provided, an applicant may submit proposed
reporting procedures for a general type of fishery operation (i.e.,
transshipments under Activity Code 10) to the appropriate Regional
Administrator and the USCG commander (see tables 1 and 2 to
Sec. 600.502 of this chapter). With the agreement of the USCG
commander, the Regional Administrator may authorize the use of
alternative reporting procedures.
* * * * *
6. In Sec. 600.505, paragraphs (a)(8), (a)(9), and (b)(1) are
revised to read as follows:
Sec. 600.505 Prohibitions.
(a) * * *
(8) Engage in any fishing activity within the EEZ without a U.S.
observer aboard the FFV, unless the requirement has been waived by the
Assistant Administrator or appropriate Regional Administrator;
(9) Retain or attempt to retain, directly or indirectly, any U.S.
harvested fish, unless the FFV has a permit for Activity Codes 4, 6, or
10;
* * * * *
(b) * * *
(1) Within the boundaries of any state, unless:
(i) The fishing is authorized by the Governor of that state as
permitted by section 306(c) of the Magnuson-Stevens Act to engage in a
joint venture for processing and support with U.S. fishing vessels in
the internal waters of that state; or
(ii) The fishing is authorized by, and conducted in accordance
with, a valid permit issued under Sec. 600.501, and the Governor of
that state has indicated concurrence to allow fishing consisting solely
of transporting fish or fish products from a point within the
boundaries of that state to a point outside the United States; or
* * * * *
7. In Sec. 600.506, the last sentence in paragraph (a) and the
first sentence in paragraph (b) introductory text are revised to read
as follows:
Sec. 600.506 Observers.
(a) * * * Except as provided for in section 201(h)(2) of the
Magnuson-Stevens Act, no FFV may conduct fishing operations within the
EEZ unless a U.S. observer is aboard.
(b) Effort plan. To ensure the availability of an observer as
required by this section, the owners and operators of FFV's wanting to
fish within the EEZ will submit to the appropriate Regional
Administrator or Science and Research Director and also to the Chief,
Financial Services Division, NMFS, 1315 East West Highway, Silver
Spring, MD 20910 a schedule of fishing effort 30 days prior to the
beginning of each quarter.* * *
* * * * *
8. In Sec. 600.508, paragraph (g) is added to read as follows:
Sec. 600.508 Fishing operations.
* * * * *
(g) Transshipping. Each FFV with Activity Code 1, 2, 3, 4, 5, 6, 7,
8, or 10 may transship in accordance with this subpart and the vessel's
permit.
9. In Sec. 600.518, paragraph (c) is removed, paragraphs (d) and
(e) are redesignated as paragraphs (c) and (d) respectively, and
paragraph (a), (b)(1) introductory text, (b)(2) heading, and (b)(2)(i)
introductory text are revised to read as follows:
Sec. 600.518 Fee schedule for foreign fishing.
(a) Permit application fees. Each vessel permit application
submitted under Sec. 600.501 must be accompanied by a fee. The amount
of the fee will be determined in accordance with the procedures for
determining administrative costs of each special product or service
contained in the NOAA Finance Handbook, which is available upon request
from the International Fisheries Division (see address at
Sec. 600.501(d)(1)). The fee is specified with the application form. At
the time the application is submitted, a check for the fees, drawn on a
U.S. bank, payable to the order of ``Department of Commerce, NOAA,''
must be sent to the Assistant Administrator. The permit fee payment
must be accompanied by a list of the vessels for which the payment is
made. In the case of applications for permits authorizing activity code
10, the permit application fee will be waived if the applicant provides
satisfactory documentary proof to the Assistant Administrator that the
foreign nation under which the vessel is registered does not collect a
fee from a vessel of the United States engaged in similar activities in
the waters of such foreign nation. The documentation presented (e.g.,
copy of foreign fishing regulations applicable to vessels of the United
States) must clearly exempt vessels of the United States from such a
fee.
(b) Poundage fees. (1) Rates. If a Nation chooses to accept an
allocation, poundage fees must be paid at the rate specified in the
following table.
* * * * *
(2) Method of payment of poundage fees and observer fees. (i) If a
Nation chooses to accept an allocation, a revolving letter of credit
(L/C) must be established and maintained to cover the poundage fees for
at least 25 percent of the previous year's total allocation at the rate
in paragraph (b)(1) of this section, or as determined by the Assistant
Administrator, plus the observer fees required by paragraph (c) of this
section. The L/C must--
* * * * *
[FR Doc. 99-18642 Filed 7-20-99; 8:45 am]
BILLING CODE 3510-22-F
