[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11751-11755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6867]



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DEPARTMENT OF COMMERCE
50 CFR Part 300

[Docket No. 960228054-6054-01; I.D. 120495A]
RIN 0648-A150


High Seas Fishing Compliance Act; Initial Regulations; OMB 
Control Numbers

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues an interim final rule (IFR) to implement the High 
Seas Fishing Compliance Act of 1995 (HSFCA). The purpose of the HSFCA 
is to license U.S. vessels fishing on the high seas and to implement 
the Agreement to Promote Compliance with International Conservation and 
Management Measures by Fishing Vessels on the High Seas (Agreement).

DATES: Effective upon publication. Comments must be received on or 
before May 21, 1996.

ADDRESSES: Send comments on the IFR and on the collection-of-
information requirement to Richard Schaefer, Office of Fisheries 
Conservation and Management, National Marine Fisheries Service, 1315 
East West Highway, Silver Spring, MD 20910. Also send comments on the 
collection-of-information requirement to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Attn: Paperwork 
Reduction Project 0648-0304, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Robert Dickinson, (301) 713-2337.

SUPPLEMENTARY INFORMATION: On November 24, 1993, the United Nations 
Food and Agriculture Organization (FAO) adopted the Agreement. The 
Agreement was negotiated largely at the initiative of the United States 
in response to fisheries crises that have arisen in many areas of the 
world. As the size and efficiency of modern fleets have come to exceed 
the productivity of their traditional coastal harvesting areas, fishery 
managers of coastal nations generally have reacted by imposing stricter 
management regimes. As a result, increasing numbers of vessels have 
sought fishing opportunities on the high seas.
    The need for the Agreement evolved from the concern that vessels 
belonging to member nations of regional fisheries organizations were 
reflagging to non-member nations, in order to continue fishing in the 
management areas unconstrained by rules set by the organizations and 
their members. For example, the effectiveness of the International 
Commission for the Conservation of Atlantic Tunas (ICCAT) has been 
compromised by vessels registered in nations that are not ICCAT 
members. Flying ``flags of convenience,'' these vessels then fish for 
tuna in the North Atlantic in defiance of ICCAT rules and management 
regimes.
    Although the Agreement has been popularly referred to as the 
``reflagging agreement,'' it does not deal directly with the reflagging 
of fishing vessels, in part because FAO negotiators did not wish to 
deter legitimate transfers of vessel registries or flags. The primary 
tenet of the Agreement is the obligation of Parties to the Agreement 
(Parties) to require that fishing vessels carrying their flags obtain 
specific authorization to operate on the high seas. Parties are also 
responsible for ensuring that their authorized vessels do not undermine 
conservation and management measures that have been adopted by global 
or regional fishery management organizations.
    The HSFCA implements the Agreement, primarily by requiring a system 
of licensing for all U.S. vessels that fish on the high seas, and by 
requiring vessels so licensed to fish in accordance with international 
conservation and management measures recognized by the United States. 
The HSFCA also requires the Secretary of Commerce (Secretary), in 
consultation with the Secretary of State, to publish from time to time 
in the Federal Register a list of agreements containing or resulting in 
such measures.
    For purposes of the HSFCA, the Secretary, in consultation with the 
Secretary of State, has determined that all conservation and management 
measures for living marine resources set forth in, or adopted pursuant 
to, the following international agreements to which the United States 
is party are included within the term ``international conservation and 
management measures recognized by the United States,'' except any such 
measure to which the United States, consistent with the terms of such 
agreement, has lodged an objection or reservation:
    International Convention for the Conservation of Atlantic Tunas 
(basic instrument for the International Commission for the Conservation 
of Atlantic Tunas--ICCAT);
    Convention between the United States of America and the Republic of 
Costa Rica for the Establishment of an Inter-American Tropical Tuna 
Commission (basic instrument for the Inter-American Tropical Tuna 
Commission--IATTC);
    Convention for the Conservation of Salmon in the North Atlantic 
Ocean (basic instrument for the North Atlantic Salmon Conservation 
Organization--NASCO);
    Convention on Future Multilateral Cooperation in the Northwest 
Atlantic Fisheries (basic instrument for the Northwest Atlantic 
Fisheries Organization--NAFO);
    Convention for the Conservation of Anadromous Stocks in the North 
Pacific Ocean (basic instrument for the North Pacific Anadromous Fish 
Commission--NPAFC);
    Convention on the Conservation and Management of Pollock Resources 
of the Central Bering Sea;
    Convention for the Conservation of Antarctic Marine Living 
Resources (basic instrument for the Commission for the Conservation of 
Antarctic Marine Living Resources--CCAMLR);
    International Convention for the Regulation of Whaling (basic 
instrument for the International Whaling Commission--IWC);
    Treaty on Fisheries Between the Governments of Certain Pacific 
Island States and the Government of the United States of America;
    Convention for the Conservation of Antarctic Seals;
    Agreement to Reduce Dolphin Mortality in the Eastern Tropical 
Pacific Tuna Fishery; and
    Convention for the Prohibition of Fishing with Long Driftnets in 
the South Pacific Ocean.
    In addition, conservation and management measures set forth in, or 
adopted pursuant to, the following international agreements to which 
the United States is not party are included in the term ``international 
conservation

[[Page 11752]]
and management measures recognized by the United States'':
    Convention on Future Multilateral Cooperation in North-East 
Atlantic Fisheries (basic instrument for the North-East Atlantic 
Fisheries Commission);
    Agreement between the Government of the Kingdom of Norway and the 
Government of the Union of Soviet Socialist Republics Concerning Co-
operation in the Field of Fisheries; and
    Convention for the Conservation of Southern Bluefin Tuna.
    This listing of ``international conservation and management 
measures recognized by the United States'' will be revised and updated 
from time to time by publication in the Federal Register. The inclusion 
or exclusion of items from this listing is without prejudice to any 
positions or views the United States Government may take or express 
with regard to such items in the future.
    This IFR implements the application and issuance procedures for 
HSFCA permits. Application forms are available from NMFS Regional 
Offices. Applicants for HSFCA permits are encouraged to apply for their 
permits through the NMFS Regional Office with which they usually 
interact on Federal fisheries matters. The amount of fees charged for a 
permit issued under the HSFCA may recover administrative costs incurred 
in issuing such permits. Anticipated administrative costs for issuance 
of HSFCA permits have been determined to be $50.00 per application. 
This amount is the HSFCA application fee until further notice.
    Permits issued under the HSFCA are valid for 5 years. Except for 
vessels that have unpaid or overdue civil penalties, criminal fines, or 
other liabilities incurred in a judicial proceeding under any statute 
administered by NOAA, any vessel of the United States is eligible to 
receive a permit under the HSFCA, unless the vessel was previously 
authorized by a foreign nation to be used for fishing on the high seas, 
and (1) the foreign nation suspended such authorization, because the 
vessel undermined the effectiveness of international conservation and 
management measures, and the suspension has not expired; or (2) the 
foreign nation, within the 3 years preceding application for a permit 
under the HSFCA, withdrew such authorization, because the vessel 
undermined the effectiveness of international conservation and 
management measures.
    The restrictions in the above paragraph related to any sanctions 
imposed on a vessel by a foreign nation do not apply if ownership of 
the vessel has changed since the vessel undermined the effectiveness of 
international conservation and management measures, and the present 
owner provides sufficient evidence to the director of the NMFS Regional 
Office serving as the issuing office (Regional Director) demonstrating 
that the owner and operator at the time the vessel undermined the 
effectiveness of international conservation and management measures 
have no further legal, beneficial, or financial interest in, or control 
of, the vessel. The restrictions in the above paragraph related to any 
sanctions imposed on a vessel by a foreign nation also do not apply if 
a determination is made by the Regional Director that issuing a permit 
under the HSFCA would not subvert the purposes of the Agreement.
    A permit issued under the HSFCA is void in the event the permitted 
vessel is no longer eligible for United States documentation, such 
documentation is revoked or denied, or the vessel is deleted from such 
documentation.
    NMFS has experienced delays in implementing the HSFCA due to 
government furloughs and closures. NMFS realizes that some individuals 
may experience unavoidable delays in obtaining an HSFCA permit due to 
circumstances such as extended trips at sea. Such individual 
circumstances will be taken into consideration during any enforcement 
operations.

Classification

    The Assistant Administrator for Fisheries, NOAA, under 5 U.S.C. 
553(b)(B), finds that the need to license U.S. vessels to fish on the 
high seas, as required by the HSFCA, constitutes good cause to waive 
providing notice and the opportunity for public comment and to waive 
the 30-day delay in effective date under 5 U.S.C. 553(d)(3). Because 
the HSFCA requires that owners and operators of such vessels have 
licenses in order to operate legally on the high seas after March 3, 
1996, delay in the issuance and effectiveness of this rule affording 
them the opportunity to apply for such licenses would be contrary to 
the public interest.
    This IFR has been determined to be not significant for purposes of 
E.O. 12866.
    This IFR contains a collection-of-information requirement subject 
to the Paperwork Reduction Act, namely the information required to be 
submitted on a permit application. The collection of this information 
has been approved by the OMB under OMB Control Number 0648-0304. The 
burden estimate for compliance is 30 minutes. Send comments regarding 
this burden estimate or any other aspect of the collection of 
information, including suggestions for reducing this burden, to Richard 
Schaefer, NMFS, or the Office of Information and Regulatory Affairs, 
OMB (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection-of-information subject to the requirements 
of the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 300

    High Seas Fishing, Fisheries, Permits, International Agreements, 
Reporting and recordkeeping requirements.

    Dated: March 18, 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 III 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 902.1, paragraph (b), the table is amended by adding in the 
left column under 50 CFR, in numerical order, ``300.4'', and in the 
right column, in corresponding position, the control number ``-0304.''.

50 CFR Chapter III

    3. Subchapters A through D are redesignated as Subchapters B 
through E, respectively.
    4. Subchapter A, High Seas Fishing Compliance Act, consisting of 
Part 300, is added to read as follows:

SUBCHAPTER A--HIGH SEAS FISHING COMPLIANCE ACT

PART 300--HIGH SEAS FISHERIES

Subpart A--General Provisions

Sec.
300.1  Purpose.
300.2  Definitions.
300.3  Issuing offices.
300.4  Vessel permits.
300.5  Vessel and gear identification. [Reserved]
300.6  Prohibitions.

[[Page 11753]]

300.7  Facilitation of enforcement.
300.8  Penalties.

Subpart B--Reporting and Recording

300.20  [Reserved]

    Authority: 16 U.S.C. 5501 et seq.


Subpart A--General Provisions


Sec. 300.1  Purpose.

    This part implements the High Seas Fishing Compliance Act of 1995 
(Act), which requires the Secretary of Commerce to license U.S. vessels 
fishing on the high seas.


Sec. 300.2  Definitions.

    The terms used in this part have the following meanings:
    Act means the High Seas Fishing Compliance Act of 1995, 16 U.S.C. 
5501 et seq.
    Agreement means the Agreement to Promote Compliance with 
International Conservation and Management Measures by Fishing Vessels 
on the High Seas, adopted by the Conference of the Food and Agriculture 
Organization of the United Nations on November 24, 1993.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard; or any U.S. Coast Guard personnel accompanying and acting under 
the direction of a commissioned, warrant, or petty officer of the U.S. 
Coast Guard;
    (2) Any special agent or fisheries enforcement officer of NMFS; or
    (3) Any person designated by the head of any Federal or state 
agency that has entered into an agreement with the Secretary or the 
Commandant of the U.S. Coast Guard to enforce the provisions of the 
Act.
    High seas means the waters beyond the territorial sea or exclusive 
economic zone (or the equivalent) of any nation, to the extent that 
such territorial sea or exclusive economic zone (or the equivalent) is 
recognized by the United States.
    High seas fishing vessel means any vessel of the United States used 
or intended for use:
    (1) On the high seas;
    (2) For the purpose of the commercial exploitation of living marine 
resources; and
    (3) As a harvesting vessel, mothership, or any other support vessel 
directly engaged in a fishing operation.
    International conservation and management measures means measures 
to conserve or manage one or more species of living marine resources 
that are adopted and applied in accordance with the relevant rules of 
international law, as reflected in the 1982 United Nations Convention 
on the Law of the Sea, and that are recognized by the United States.
    NMFS means the National Marine Fisheries Service, National Oceanic 
and Atmospheric Administration, Department of Commerce.
    NMFS issuing office means the NMFS regional office through which a 
permit is issued under the Act.
    Operator means, with respect to any vessel, the master or other 
individual on board and in charge of that vessel.
    Owner means, with respect to any vessel:
    (1) Any person who owns that vessel in whole or part;
    (2) Any charterer of the vessel, whether bareboat, time, or voyage;
    (3) Any person who acts in the capacity of a charterer, including 
but not limited to parties to a management agreement, operating 
agreement, or any similar agreement that bestows control over the 
destination, function, or operation of the vessel; or
    (4) Any agent designated as such by a person described in this 
paragraph.
    Regional Director means the director of the NMFS regional office 
serving as the issuing office.


Sec. 300.3  Issuing offices.

    NMFS Regional Offices will issue permits required under this part. 
While applicants for permits may submit an application to any NMFS 
Regional Office, applicants are encouraged to submit their applications 
to the NMFS Regional Office with which they normally interact on 
fisheries matters. The addresses of the NMFS Regional Offices are as 
follows:
    (a) Northeast Region, NMFS, (Attn: HSFCA Permits), One Blackburn 
Drive, Gloucester, MA 01930-2298.
    (b) Southeast Region, NMFS, (Attn: HSFCA Permits), 9721 Executive 
Center Drive, N., St. Petersburg, FL 33702.
    (c) Southwest Region, NMFS, (Attn: HSFCA Permits), 501 West Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802-4213.
    (d) Northwest Region, NMFS, (Attn: HSFCA Permits), 7600 Sand Point 
Way, NE., BIN C15700, Bldg. 1, Seattle, WA 98115.
    (e) Alaska Region, NMFS, (Attn: HSFCA Permits), 709 West Ninth 
Street, Suite 401, P.O. Box 21668, Juneau, AK 99802.


Sec. 300.4  Vessel permits.

    (a) Eligibility. (1) Except for vessels having unpaid or overdue 
civil penalties, criminal fines, or other liabilities incurred in a 
judicial proceeding under any statute administered by NOAA, any high 
seas fishing vessel of the United States is eligible to receive a 
permit under this part, unless the vessel was previously authorized to 
be used for fishing on the high seas by a foreign nation, and
    (i) The foreign nation suspended such authorization, because the 
vessel undermined the effectiveness of international conservation and 
management measures, and the suspension has not expired; or
    (ii) The foreign nation, within the 3 years preceding application 
for a permit under this section, withdrew such authorization, because 
the vessel undermined the effectiveness of international conservation 
and management measures.
    (2) The restrictions in paragraphs (a)(1)(i) and (a)(1)(ii) of this 
section do not apply if ownership of the vessel has changed since the 
vessel undermined the effectiveness of international conservation and 
management measures, and the new owner has provided sufficient evidence 
to the Regional Director demonstrating that the owner and operator at 
the time the vessel undermined the effectiveness of such measures has 
no further legal, beneficial, or financial interest in, or control of, 
the vessel.
    (3) The restrictions in paragraphs (a)(1)(i) and (a)(1)(ii) of this 
section do not apply if it is determined by the Regional Director that 
issuing a permit would not subvert the purposes of the Agreement.
    (b) Application forms. The owner or operator of a high seas fishing 
vessel may apply for a permit under this part by completing an 
application form. Applicants may obtain an application form from an 
NMFS issuing office listed in Sec. 300.3. (c) Application information. 
An applicant must submit a complete and accurate permit application, 
signed by the owner or operator, to the appropriate Regional Director.
    (d) Fees. The NMFS issuing office will charge a fee to recover the 
administrative expenses of permit issuance. The amount of the fee will 
be determined in accordance with the procedures of the NOAA Finance 
Handbook for determining administrative costs of each special product 
or service. The fee is specified with the application form. The 
appropriate fee must accompany each application. Failure to pay the fee 
will preclude issuance of the permit. Payment by a commercial 
instrument later determined to be insufficiently funded will invalidate 
any permit.
    (e) Issuance. (1) Except as provided in subpart D of 15 CFR part 
904, the Regional Director will issue a permit, which will include 
appropriate

[[Page 11754]]
conditions or restrictions, within 30 days of receipt of a completed 
application and payment of the appropriate fee.
    (2) The Regional Director will notify the applicant of any 
deficiency in the application.
    (f) Validity. Permits issued under this part are valid for 5 years 
from the date of issuance. Renewal of a permit prior to its expiration 
is the responsibility of the permit holder. For a permit to remain 
valid to its expiration date, the vessel's U.S. Coast Guard 
documentation or state registration must be kept current. A permit 
issued under this part is void when the name of the owner or vessel 
changes, or in the event the vessel is no longer eligible for U.S. 
documentation, such documentation is revoked or denied, or the vessel 
is deleted from such documentation.
    (g) Change in application information. Any changes in vessel 
documentation status or other permit application information must be 
reported to the Regional Director in writing within 15 days of such 
changes.
    (h) Transfer. A permit issued under this part is not transferable 
or assignable to another vessel or owner; it is valid only for the 
vessel and owner to which it is issued.
    (i) Display. A valid permit, or a copy thereof, issued under this 
part must be on board the vessel while operating on the high seas and 
available for inspection by an authorized officer. Faxed copies of 
permits are acceptable.


Sec. 300.5  Vessel and gear identification. [Reserved]


Sec. 300.6  Prohibitions.

    It is unlawful for any person to:
    (a) Use a high seas fishing vessel on the high seas in 
contravention of international conservation and management measures.
    (b) Use a high seas fishing vessel on the high seas, unless the 
vessel has on board a valid permit issued under Sec. 300.4.
    (c) Violate the conditions or restrictions of a permit issued under 
Sec. 300.4.
    (d) Fail to submit information, fail to submit information in a 
timely manner, or to submit false or inaccurate information, with 
respect to any information required to be submitted, reported, 
communicated, or recorded pursuant to the Act or the regulations in 
this part.
    (e) Refuse to permit an authorized officer to board a high seas 
fishing vessel subject to such person's control for purposes of 
conducting any search or inspection in connection with the enforcement 
of the Act, this part or any other applicable law.
    (f) Forcibly assault, resist, oppose, impede, intimidate, or 
interfere with an authorized officer in the conduct of any search or 
inspection described in paragraph (e) of this section.
    (g) Resist a lawful arrest or detention for any act prohibited by 
this section.
    (h) Interfere with, delay, or prevent, by any means, the 
apprehension, arrest, or detection of another person, knowing that such 
person has committed any act prohibited by this section.
    (i) Ship, transport, offer for sale, sell, purchase, import, 
export, or have custody, control or possession of, any living marine 
resource taken or retained in violation of the Act or this part.
    (j) Violate any provision of the Act or the regulations in this 
part.


Sec. 300.7  Facilitation of enforcement.

    (a) Compliance. The operator of, or any other person on board, any 
fishing vessel subject to this part must immediately comply with 
instructions and signals issued by an authorized officer to stop the 
vessel and with instructions to facilitate safe boarding and inspection 
of the vessel, its gear, equipment, fishing record (where applicable), 
and catch for purposes of enforcing the Act and this part.
    (b) Communications. (1) Upon being approached at sea by a U.S. 
Coast Guard vessel or aircraft, or other vessel or aircraft with an 
authorized officer on board, the operator of a fishing vessel must be 
alert for communications conveying enforcement instructions.
    (2) VHF-FM radiotelephone is the preferred method of communicating 
between vessels. If the size of the vessel and the wind, sea, and 
visibility conditions allow, a loudhailer may be used instead of the 
radio. Hand signals, placards, high frequency radiotelephone, or voice 
may be employed by an authorized officer, and message blocks may be 
dropped from an aircraft.
    (3) If other communications are not practicable, visual signals may 
be transmitted by flashing light directed at the vessel signaled. Coast 
Guard units will normally use the flashing light signal ``L'' as the 
signal to stop. In the International Code of Signals, ``L'' (.-..) 
means ``you should stop your vessel instantly.''
    (4) Failure of a vessel's operator promptly to stop the vessel when 
directed to do so by an authorized officer using loudhailer, 
radiotelephone, flashing light signal, or other means constitutes prima 
facie evidence of the offense of refusal to allow an authorized officer 
to board.
    (5) The operator of a vessel who does not understand a signal from 
an enforcement unit and who is unable to obtain clarification by 
loudhailer or radiotelephone must consider the signal to be a command 
to stop the vessel immediately.
    (c) Boarding. The operator of a vessel directed to stop must:
    (1) Monitor Channel 16, VHF-FM, if so equipped;
    (2) Stop immediately and lay to or, if appropriate and/or directed 
to do so by the authorized officer, maneuver in such a way as to allow 
the safe boarding of the vessel by the authorized officer and the 
boarding party;
    (3) Except for those vessels with a freeboard of 4 ft (1.25 meters) 
or less, provide a safe ladder, if needed, for the authorized officer 
and boarding party to come on board;
    (4) When necessary to facilitate the boarding or when requested by 
an authorized officer, provide a manrope or safety line, and 
illumination for the ladder; and
    (5) Take such other actions as necessary to facilitate boarding and 
to ensure the safety of the authorized officer and the boarding party.
    (d) Signals. The following signals, extracted from the 
International Code of Signals, may be sent by flashing light by an 
enforcement unit when conditions do not allow communications by 
loudhailer or radiotelephone. Knowledge of these signals by vessel 
operators is not required. However, knowledge of these signals and 
appropriate action by a vessel operator may preclude the necessity of 
sending the signal ``L'' and the necessity for the vessel to stop 
instantly.
    (1) ``AA'' repeated (.- .-) is the call to an unknown station. The 
operator of the signaled vessel should respond by identifying the 
vessel by radiotelephone or by illuminating the vessel's 
identification.
    (2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at 
slow speed, a boat is coming to you.'' This signal is normally employed 
when conditions allow an enforcement boarding without the necessity of 
the vessel being boarded coming to a complete stop, or, in some cases, 
without retrieval of fishing gear that may be in the water.
    (3) ``SQ3'' ( ... --.- ...--) means ``you should stop or heave to; 
I am going to board you.''


Sec. 300.8  Penalties.

    Any person or high seas fishing vessel found to be in violation of 
the Act, this part, or any permit issued under this part will be 
subject to the civil and criminal penalty provisions, permit

[[Page 11755]]
sanctions, and forfeiture provisions prescribed in the Act, 15 CFR part 
904 (Civil Procedures), and other applicable laws.

Subpart B--Reporting and recordkeeping.


Sec. 300.20  [Reserved]

[FR Doc. 96-6867 Filed 3-21-96; 3:24 pm]
BILLING CODE 3510-22-F