[Federal Register Volume 64, Number 64 (Monday, April 5, 1999)]
[Proposed Rules]
[Pages 16414-16417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8180]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 981228324-8324-01; I.D. 121697A]
RIN 0648-AJ70


Magnuson-Stevens Fishery Conservation and Management Act; 
Amendment of Foreign Fishing Regulations

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to 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). NMFS 
also proposes to make additional minor changes in the foreign fishing 
regulations to update permit application and issuance procedures 
applicable to all types of foreign fishing permits issued under the 
Magnuson-Stevens Act. These proposed actions are necessary to maintain 
the foreign fishing regulations in a current and complete manner.

DATES: Comments must be received on or before May 5, 1999.
ADDRESSES: Send comments to Gary C. Matlock, Office of Sustainable 
Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

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. Until 
section 204(d) was added to the Magnuson-Stevens Act, transshipments of 
this nature at points at sea within the boundaries of a state were 
prohibited.

    For consistency of process with permits issued under section 204(b) 
of the Magnuson-Stevens Act, NMFS proposes to make minor changes in the 
regulations at 50 CFR part 600, subpart F, to accommodate applications 
submitted under section 204(d) of the Magnuson-Stevens Act and to 
provide for the issuance of permits under section 204(d).

    NMFS proposes to amend Sec. 600.501(d) to provide that application 
forms for permits issued under section 204(d) be available from NMFS, 
and submitted to the AA. NMFS proposes that the application fee 
submitted for a permit under section 204(d) of the Magnuson-Stevens Act 
be the same as for applications submitted under section 204(b) of the 
Magnuson-Stevens Act. Currently this fee amount is $354.00 per vessel. 
This fee was determined in accordance with the procedures for 
determining administrative costs of each special product or service 
contained in the NOAA Finance Handbook. However, in accordance with 
section 204(d)(7) of the Magnuson-Stevens Act, this fee will be waived 
for applications under section 204(d) of the Magnuson-Stevens Act if 
the applicant provides satisfactory documentation to the AA indicating 
that the foreign nation under which the applicant vessel is registered 
does not collect a fee from vessels of the United States engaged in 
similar activities in the waters of such foreign nation. NMFS proposes 
that 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. NMFS proposes to 
publish, as appropriate, a notice of receipt in the Federal Register to 
notify interested parties of the opportunity to review and/or comment 
on applications. NMFS suggests that applicants allow 90 days for 
processing applications submitted under section 204(b) and (d) of the 
Magnuson-Stevens Act.

    Following consideration of all recommendations, comments and any 
other factors pertinent to an application, the AA may issue an 
appropriate permit to a foreign vessel authorizing transshipments under 
provisions of section 204(d) if the AA determines that to do so would 
be in accordance with section 204(d)(3) of the Magnuson-Stevens Act. It 
is proposed that activity code 10 be established at Sec. 600.501(c) to 
denote transshipment activities under section 204(d) of the Magnuson-
Stevens Act. It is proposed that Sec. 600.501(e)(2) be amended to 
provide for issuance of permits for activity code 10 directly to 
applicants and to provide that permits for activity codes 1 through 9 
will be provided to the official representative of the applicant 
foreign nation by the Department of State (DOS). It is proposed that in 
Sec. 600.508, a new paragraph (g) regarding transshipment operations be 
added.

    NMFS also proposes that additional minor changes be made in the 
foreign fishing regulations at 50 CFR part 600, subpart F, to make 
vessels operating under permits issued in accordance with section 
204(d) of the Magnuson-Stevens Act subject to the same requirements as 
vessels operating under permits issued in accordance with section 
204(b) of the Magnuson-Stevens Act.

    NMFS also proposes to amend Sec. 600.501(e)(2) to reflect the fact 
that permit holders no longer have to enter any data in ``blank permit 
forms.'' All necessary information will appear on the permit provided 
by the DOS (in the case of activity codes 1 through 9) or the NMFS (in 
the case of activity code 10). In order to delete references to 
outdated

[[Page 16415]]

permit processes, NMFS also proposes to delete Sec. 600.501(k)(2) 
through (k)(5).

    NMFS also proposes to update a reference to section 201 of the 
Magnuson-Stevens Act at Sec. 600.506(a) and an address at 
Sec. 600.506(b).

    Lastly, NMFS proposes to delete several references to the Fishing 
Vessel and Gear Damage Compensation Fund program due to the 
discontinuance of the program. The cessation of this program was 
announced in a notice published in the Federal Register at 61 FR 34798, 
July 3, 1996.

    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 proposed 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. The Regulatory Flexibility Act defines ``small 
business'' by reference to the Small Business Act (SBA). The SBA 
definition of the term small business is implemented through 
regulations at 13 CFR part 121. Those regulations define small business 
as meaning ``a business entity organized for profit, with a place of 
business located in the United States, and which operates primarily 
within the United States or which makes a significant contribution to 
the U.S. economy, through payment of taxes or use of American products, 
materials or labor.'' None of the entities affected by this proposed 
rule meet that definition. Further, section 204(d)(3)(D) of the 
Magnuson-Stevens Act provides that an application may not be approved 
until the Secretary determines that ``no owner or operator of a vessel 
of the United States which has the capacity to perform the 
transportation for which the application is submitted has indicated * * 
* an interest in performing the transportation at fair and reasonable 
rates.'' Therefore, no U.S. firms will be impacted. As a result, an 
initial 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.

    This rule contains two collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA), both of which have been 
approved by the OMB. The collections of information are as follows:

    (1) Approved under OMB control number 0648-0089--Application form 
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.

List of Subjects in 50 CFR Part 600

     Fisheries, Fishing, Foreign relations, Intergovernmental 
relations.

    Dated: March 29, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. 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.


    2. 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.


[[Page 16416]]


    (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.

    (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.
* * * * *

    3. 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. 602.502 of this chapter). With the agreement of the USCG 
commander, the Regional Administrator may authorize the use of 
alternative reporting procedures.

    4. 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
* * * * *

    5. In Sec. 600.506, the last sentence in paragraph (a) and the 
first sentence in paragraph (b) 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.* * *
* * * * *

    6. 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.

    7. In Sec. 600.518, paragraph (c) is removed, paragraphs (d) and 
(e) are redesignated as paragraphs (c) and (d) respectively, and 
paragraphs (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. 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

[[Page 16417]]

observer fees required by paragraph (c) of this section. The L/C must--
* * * * *
[FR Doc. 99-8180 Filed 4-2-99; 8:45 am]
BILLING CODE 3510-22-F