[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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