[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